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Speech Limitation Based On Speaker's Identity Is A Content Based Restriction

Posted on February 1, 2012 by Michael Rigney

SURITA v. HYDE (December 22, 2011)

Waukegan, Illinois enacted an ordinance in 2002 pursuant to which the police could impound a vehicle if its driver was caught driving without a license or proof of insurance. The ordinance was very unpopular in the city, particularly among the minority population. At a large rally in 2004, José Surita confronted a city official. The official complained to the Mayor that Surita was very angry and that she feared a physical attack. Two days later, Surita attempted to speak during "audience time" at a City Council meeting. The Mayor refused to let him speak until he apologized to the official. The Mayor did allow others to speak on a variety of topics, including the towing ordinance. Margaret Carrasco also opposed the ordinance. When the Chief of Police heard that she was going to conduct a rally, he sent a police officer to her home to request a meeting. She came to a meeting where she was asked to comply with the City's Assembly Ordinance. A city attorney advised her that she would have to pay a permit fee of $1500 to pay for the extra police officers that the Chief determined would be needed. The City imposed a permit fee requirement on only 2 of 530 events over the last five years, both involving towing ordinance protests. The rally was never held. Chris Blanks also opposed the ordinance. Blanks was organizing a rally to be held in one of the City's parks, which are not covered by the Assembly Ordinance. Nevertheless, when the city attorney learned that Blanks did not have a permit, she sent a police officer to his home with a letter telling him that he was violating the Assembly Ordinance. Blanks cancelled the rally. Surita, Carrasco, and Blanks brought suit against the City, the Mayor, and the Police Chief, alleging First Amendment violations. Judge Shadur (N.D. Ill.) denied the requests for qualified immunity by the Mayor and the Police Chief. The Mayor and the Police Chief appeal.

In their opinion, Seventh Circuit Judges Manion (concurring in part and dissenting in part) and Williams and District Judge Clevert affirmed the qualified immunity denials with respect to Surita's and Carrasco's claims but reversed the denial with respect to Blanks’ claims. The Court first addressed its appellate jurisdiction since no final judgment was entered below. When the district court's summary judgment order is one denying qualified immunity, it is immediately appealable if the appeal can be resolved without resolving a disputed question of fact. The question on qualified immunity is whether the defendants' actions violated a constitutional right that was clearly established at the time. With that foundation, the Court turned to each plaintiff’s claim. With respect to Surita’s claims against the Mayor, the Court first noted that "audience time" is a designated public forum under First Amendment law and that, therefore, any content-based restriction on speech is subject to strict scrutiny. Here, defendants argued that the restriction was not content-based since others spoke out against the ordinance at the same meeting. But restrictions based on the identity of the speaker are content-based as well. Since the restriction was content-based, it had to be narrowly tailored to effectuate a compelling state interest and there was no evidence that it was. It was, in fact, a sanction for Surita’s earlier speech and behavior. The Court therefore concluded that there was a First Amendment violation. The Court then had little difficulty in finding that the constitutional right was well-established. The Court turned to Carrasco's claims against the Chief of Police. The Court first determined that the Chief was involved enough in the conduct to be personally liable. He called the meeting with Carrasco, he sent an officer to her home, and he computed the amount of extra police support that translated into the amount of the fee. There is nothing necessarily wrong with charging a fee even for the use of a traditional public forum -- but it must be content neutral. Under Forsyth County, a content-based flexible fee is unconstitutional. Here it is undisputed that the Chief took content into consideration. He testified that he needed more police support for a rally protesting the ordinance then he would for one in support of the ordinance. There was a constitutional violation and it was clearly established at the time of the meeting. Carrasco also claimed that the Chief retaliated against her for prior speech. The Court concluded that there were genuine issues of material fact with respect to the qualified immunity test in this context and so it could not be determined on appeal. Finally, the Court turned to Blank's claims against the Chief. Here, the Court determined that the Chief was not sufficiently involved in the City's conduct to support personal liability. It was the city attorney, not the Chief of Police, that applied the Assembly Ordinance to Blanks. Although the Chief received copies of the attorney's correspondence to Blanks, that is not enough to establish personal liability.

Judge Manion wrote separately, concurring in the majority's treatment of Surita’s claims and Blank’s claims but disagreeing with its treatment of Carrasco's claims. Judge Manion believed that the record did not support a finding of personal liability with respect to Carrasco’s claims against the Chief. It was the city attorney, not the Chief, that was principally involved in applying the Assembly Ordinance to Carrasco. The undisputed evidence is that the Chief did not know that the city attorney was going to impose the fee.

Tags: Opinion By Clevert, Constitutional Law, First Amendment, Opinion (Concurring In Part, Dissenting In Part) By Manion, Public Forum, Qualified Immunity, Retaliation

Wisconsin's Cap On Contributions To Independent PACs Violates First Amendment

Posted on January 20, 2012 by Michael Rigney

WISCONSIN RIGHT TO LIFE STATE POLITICAL ACTION COMMITTEE v. BARLAND (December 12, 2011)

The Wisconsin Right to Life's State Political Action Committee is an independent political committee that does not make contributions to candidates nor does it coordinate with any candidate or party. Wisconsin law places a $10,000 cap on an individual' s political contributions, whether they be to candidates, parties, or independent political committees. Two Wisconsin residents wished to make a $5,000 contribution to the PAC in 2010 but could not do so legally because of other contributions they had already made or planned to make. The PAC filed suit, alleging that the Wisconsin statute was unconstitutional to the extent it limited contributions to independent political committees. The PAC moved for a preliminary injunction, anticipating the fall 2010 elections. Instead, Chief Judge Clevert (E.D. Wis.), at defendants request, granted a Pullman abstention motion. The court based its ruling on the pendency of a case before the Wisconsin Supreme Court challenging an amended campaign finance rule. The PAC returned to the District Court in 2011, in anticipation of an unprecedented six state senator recall elections. The district court denied the motion. The PAC appealed and moved for an injunction pending appeal. A Seventh Circuit motions panel granted the motion and the Court expedited the appeal.

In their opinion, Seventh Circuit judges Posner, Flaum, and Sykes vacated the district court's abstention order and remanded with instructions to enter a permanent injunction. Before reaching the merits of the request for injunctive relief, the Court considered several preliminary challenges raised by the defendants. First, the Court concluded that the PAC had standing. The complaint alleged a proper pre-enforcement challenge. The PAC identified actual contributors who attested to their desire to make contributions in excess of the statutory limit. Second, the Court rejected the defendants' ripeness argument. The fact that the injunction pending appeal allowed the contributors freedom during the 2011 elections and their generalized desire to do so "in the future" does not establish a lack of ripeness. Future elections are only months away and the Court understood the contributors' "in the future" attestation to include those elections. Third, the Court rejected the contention that the conclusion of the 2011 recall elections made the claim moot. The Court noted that the claim probably could fit within the "capable of repetition yet evades review" exception but concluded that it need not decide that. The contributors’ claims were not limited to the 2011 recall elections. Fourth, the Court concluded that Pullman abstention was not appropriate. Although several aspects of the PAC’s case and the case pending before the Wisconsin Supreme Court overlap, the $10,000 contribution limit is not one of them. The state court's decision will therefore have no impact on the constitutional challenge to the $10,000 cap. The Court turned to the merits. It noted that laws limiting political speech are subject to strict review. The Supreme Court has drawn a distinction between limits on political campaign contributions, which are frequently upheld when the limitation is narrowly drawn to serve a important government interest, and limits on political expenditures, which are subject to strict scrutiny and are usually not upheld. Citizens United held that the only government interest at play is political corruption or the appearance of corruption. Since the kind of quid pro quo political corruption that the government is concerned about does not exist in the context of a independent political organization, a limitation on its expenditures cannot survive constitutional scrutiny. Even though the Wisconsin statute at issue addresses contributions, and not expenditures, the result is the same.

Tags: Pullman Abstention, Constitutional Law, First Amendment, Mootness, Opinion, Political Contributions, Ripeness, Standing, Sykes", by

University Met Very Limited Due Process Requirements In Academic Dismissal Context

Posted on January 18, 2012 by Michael Rigney

HLAVACEK v. BOYLE (December 6, 2011)

Eric Hlavacek enrolled in the Southern Illinois University School of Dental Medicine in 2005. He failed a required course in the fall semester, failed it again the next semester, failed another course in the spring 2007 semester, and failed three courses (one of them twice) in the fall 2007 semester. In early 2008, the University informed Hlavacek that he was being dismissed for unsatisfactory academic performance. Hlavacek challenged his dismissal at a hearing, filed a grievance with the school’s Office of Institutional Compliance, and sought review through several school officials, including the President -- all to no avail. Hlavacek filed suit against the school, alleging they violated his procedural due process rights. Judge Murphy (S.D. Ill.) dismissed the complaint for failure to state a claim. Hlavacek appeals.

In their opinion, Seventh Circuit Chief Judge Easterbrook and Judges Wood and Tinder affirmed. The Court assumed that Hlavacek had a cognizable property interest in his dental school education and turned to whether he was afforded the required process. In the educational institution setting, academic dismissals require very little process. They require notice and a careful decision -- but they do not even require a hearing. Here, Hlavacek was put on notice that he was on academic probation, and he was given repeated second chances. Though he was not even entitled to a hearing, he was given a hearing and a grievance and several additional audiences before the dismissal was final. He received more than due process.

Tags: Opinion by Wood, Civil Rights, Constitutional Law, Hearing, Procedural Due Process

"For Cause" Language In Probationary Employee's Employment Agreement Did Not Create Property Interest

Posted on January 17, 2012 by Michael Rigney

REDD v. NOLAN (November 29, 2011)

Samone Redd was a probationary correctional officer with the Cook County Department of Corrections in May of 2007 when she witnessed an altercation in which a friend was involved. When the friend later complained that she was hit in the face with a beer bottle during the altercation, the Chicago Police investigated. Redd was initially cooperative. The officers investigating the case later found her to be uncooperative and filed a complaint that she was failing to cooperate in an ongoing investigation. Redd alleges that her "failure to cooperate" was simply her refusal to go along with the officer’s request that she lie. The Sheriff’s Department investigated the charges against Redd and eventually sustained several of them. The results of the investigation ended with a recommendation that the Department terminate Redd. On October 31, just 13 days before her probationary employment would end, Redd was told that she would be discharged if she did not resign. She chose to resign. Redd brought suit against the original investigating officer for tortiously interfering with her employment. She also sued the County for First Amendment retaliation, retaliatory discharge, and procedural due process. The City claim was dismissed for failure to state a claim and Magistrate Judge Denlow (N.D. Ill.) granted summary judgment to the County on the remaining claims. Redd appeals.

In their opinion, Seventh Circuit judges Posner, Flaum, and Hamilton affirmed. With respect to the intentional interference claim, the Court noted that Redd alleged that the complaint with the County was made not by the officer, but by an Assistant State's Attorney. Although she tries to create liability on the part of the officer by alleging a conspiracy, she offers no facts to support the allegation. The Court turned to her First Amendment retaliation and state retaliatory discharge claims. It agreed with the district court that Redd presented no evidence from which a jury could conclude that the County's actions were in retaliation for her conduct during the investigation. The Court went on to note that, even in such had been presented, the investigator was not part of the termination decision. Finally, the Court turned to her due process argument. On its face, the argument seemed to lack merit. Redd was still a probationary officer and possessed no protectable property interest in continued employment under Illinois law. But Illinois courts have concluded that a municipal body can afford more protection than required by Illinois law -- all that is required is a "clear policy statement." In Redd's employment agreement, she confirmed that she was "on probation and can be terminated for cause." Notwithstanding the "for cause" language in the terms of her employment, the Court concluded that the phrase was not a sufficiently clear policy statement to provide protection amounting to a property interest. Since she had no protectable property interest, she was entitled to no particular procedures.

Tags: Opinion By Hamilton, Civil Rights, Constitutional Law, Labor & Employment, Procedural Due Process, Retaliation, Retaliatory Discharge, Tortious Interference

Consumer Loss Is An Appropriate Benchmark For Determining Contempt Penalty

Posted on January 17, 2012 by Michael Rigney

FTC v. TRUDEAU (November 29, 2011)

Kevin Trudeau advertises his books on infomercials. The FTC, after entering into a court approved settlement, alleged that Trudeau violated the settlement and sought a contempt finding. Judge Gettleman (N.D. Ill.) agreed and found Trudeau in contempt. He imposed a $37.6 million fine and banned Trudeau from making infomercials for three years. On appeal, the Seventh Circuit affirmed (opinion and intheiropinion) the finding of contempt but remanded on the sanctions. It concluded that the district court failed to adequately explain its rationale for the monetary sanctions and also concluded that a complete ban was inappropriate, in that he did not give Trudeau an opportunity to comply with the agreement. On remand, Judge Gettleman reinstated the monetary penalty, explaining that he arrived at it by multiplying the number of books ordered through the 800 number by the price of the books plus shipping. The court also imposed a $2 million performance bond if Trudeau wanted to do any more infomercials, to be effective for five years. Trudeau appeals.

In their opinion, Seventh Circuit Judges Ripple, Manion, and Tinder affirmed. The Court rejected Trudeau's argument that the fine was improper because it was based on consumer loss. That is an appropriate approach to a contempt finding even if, as he alleges, Trudeau did not benefit to the same degree as the consumers lost. The Court actually noted that the district court's figures were conservative. It only included those books that were sold through the infomercial’s 800 number, even though other books were sold through the Internet and retail outlets. With respect to the performance bond, the Court rejected Trudeau's argument that the FTC had to show significantly changed circumstances. That rule applies only in institutional reform cases. Here the proper test is whether the order was achieving its purpose -- and it clearly was not. Finally, the Court rejected Trudeau's First Amendment argument and found the requirement narrowly enough drawn to meet the constitutional standard: a) the bond is only triggered if Trudeau decides to engage in infomercials, b) the district court gave him an opportunity to seek a reduction in the amount of the bond with proof of his financial position, and c) the amount of the bond is proportional to the threatened harm.

Tags: Opinion by Tinder, Civil Contempt, Constitutional Law, Consumer Protection Law, Contempt Penalty, First Amendment, Injunctive Relief, Performance Bond

Officer's Improper Tactics Tainted Later Arrest

Posted on January 4, 2012 by Michael Rigney

ALEMAN v. VILLAGE OF HANOVER PARK (November 21, 2011)

Rick Aleman operated a daycare in his Hanover Park home. Joshua, one of the children in his care, had been feverish and lethargic his first two days under Aleman’s care. Then, on the third day, he stopped breathing. Aleman picked him up and shook him gently to see if he could get a response. Getting none, he performed CPR and then called 911. Joshua was taken to the hospital and Aleman was taken to the police station. He was held for several hours without questioning and then questioned for several hours. Although Aleman was allowed to call his lawyer several times, and his lawyer told the police that he was invoking his right to remain silent, Aleman eventually signed a waiver. The police told Aleman the three doctors told them that a shaking caused Joshua's injury. They were lying. Based on the statements, Aleman "admitted" that he must have shaken the baby too hard and hurt him. At the same time, he continued to express his disbelief that he could have caused the injuries. Aleman was charged with aggravated battery. A few days later, Joshua died. Aleman was rearrested and charged with first-degree murder. The charges were eventually dropped. Doctors explained that a child could go for a few days, usually in a lethargic state, after being shaken but before losing consciousness. The investigation also disclosed that Joshua's mother had a criminal record and had beaten and shaken Joshua in the past. In addition, one of the lead investigators had apparently developed a sexual attraction to Joshua's mother and did what he could to steer the investigation toward Aleman. Aleman brought suit pursuant to § 1983 against several state and local police officers. Judge Bucklo (N.D. Ill.) granted summary judgment to the defendants. Aleman appeals.

In their opinion, Seventh Circuit Judges Cudahy, Posner, and Wood affirmed in part and reversed and remanded in part. The Court quickly concluded that the first arrest was supported by probable cause. Aleman was the last person to be with Joshua and admitted shaking him, the doctors believed his injury resulted from being shaken, and the information about Joshua's mother was not yet known. The second arrest was a constitutional violation, however. By that time, one of the officers had already lied to one of the doctors and obstructed the investigation into Joshua’s mother. The police also engaged in improper tactics during their interrogation. The interrogation itself also violated Miranda. Aleman invoked his right to counsel on more than one occasion. The police should have terminated the interrogation until a lawyer was present or until Aleman initiated a conversation. Instead, they badgered him into signing a waiver. Since the statements he made were critical elements of the murder charge, the Miranda violation is actionable under § 1983. In addition to the Miranda violation, the content of the interrogation was also improper. Aleman is not a medical expert but was given (false) information that he must have been the cause of Joshua's injury. The false information distorted his ability to make a rational choice. Finally, with respect to the malicious prosecution under state law, the Court again distinguished between the first and second arrest. Illinois law requires proof of malice in a malicious prosecution action. Given the circumstances of the first arrest, the district court was correct in granting summary judgment to the defendants. With respect to the second arrest, however, a reasonable jury could find that the officer who obstructed justice and tried to protect Joshua's mother, at Aleman’s expense, had improper motives.

Tags: Opinion by Posner, Civil Rights, Constitutional Law, False Arrest, Malicious Prosecution, Probable Cause, Section 1983

Municipality Not Liable For Activity Of Agents Who Had No Final Policymaking Authority

Posted on January 3, 2012 by Michael Rigney

MILESTONE v. CITY OF MONROE (November 21, 2011)

The city of Monroe, Wisconsin (the "Swiss Cheese Capital of the U.S.A.") operates a Senior Center for its older residents. Nine volunteers sit on the Monroe Senior Citizens Board, which promulgated a Code of Conduct for the center. Edith Milestone used the center frequently, but not without incident. She was a frequent disruptive influence at the center and was warned about her failure to behave reasonably. In late 2008, she got into a heated discussion with the center's Director and threatened to sue her. The next day, the Center sent Milestone a letter advising her that she was no longer welcome. The letter listed the various alleged violations of the Center's Code. At Milestones request, the Senior Citizens Board held an evidentiary hearing and affirmed the ban. The Board also advised Milestone that she could appeal the finding to the Monroe Common Council. Instead of appealing, Milestone brought a § 1983 suit against Monroe, alleging violations of her due process and free speech rights. Magistrate Judge Crocker (W.D. Wis.) granted summary judgment to the defendants on the ground that neither the Director nor the Board were final policymakers for Monell purposes. Milestone appeals.

In their opinion, Seventh Circuit Judges Manion, Sykes, and Hamilton affirmed. The Court agreed with the magistrate, at least as far as he went. In order to establish liability against the city, there must be (in this case) a decision by a municipal agent with final policymaking authority. It is clear that neither the Director nor the Board had that authority. The Director's decisions are all subject to review by the Board. Under state and local law, the Board did not have final policymaking authority. The Monroe Common Council retained ultimate authority over the Board's activity in this area. Although the city cannot be liable for the actions of the Director or the Board under Monell, Milestone also brought a claim based on the Code of Conduct itself. The code is municipal policy and can subject the city to liability if it, as Milestone alleged, violates the First Amendment. Because the Code is content neutral, it's restrictions are acceptable if they are: a) narrowly tailored, b) to achieve a significant governmental interest, and c) allow for ample alternative communication channels. The Court concluded that the Code met each of these requirements. First, the rules only require visitors to treat each other with respect and to refrain from abusive language. Second, the Center's goal was to create a pleasant and upbeat environment for its older citizens. Third, the Code does not restrict a visitor's right to express herself, as long as she does so respectfully. The Code is a content-neutral reasonable time, place, and manner restriction and does not violate the First Amendment. Finally, the Court rejected Milestone's void for vagueness claim. Any person of reasonable intelligence would understand what conduct is prohibited.

Tags: Opinion by Sykes, Monell, Constitutional Law, Due Process, First Amendment, Municipal Liability, Section 1983

Former Sheriff's Employee Fails To Satisfy "Motivating Factor" Test

Posted on December 20, 2011 by Michael Rigney

BROWN v. COUNTY OF COOK (or 25, 2011)

Between 2003 and 2005 (when he retired), Thomas Brown was a sergeant in the Cook County Sheriff’s Office. He was on a list of 16 officers eligible for promotion. Brown never contributed to then-Sheriff Michael Sheahan's campaign, was a Republican (Sheahan was a Democrat), and several years earlier had donated a small amount to Sheahan’s challenger. Brown was never promoted -- only 5 of the 16 were. But Brown filed suit pursuant to § 1983 alleging that he was passed over because of his political affiliation. Judge Coleman (N.D. Ill.) granted summary judgment to the County. Brown appeals.

In their opinion, Seventh Circuit Chief Judge Easterbrook and Judges Posner and Williams affirmed. The Court first noted that the Mount Healthy "motivating factor" analysis remains the appropriate analysis in a First Amendment violation case (citing its Greene decision, released shortly after oral argument). Under that test, Brown had to present evidence that his political affiliation was a motivating factor in not being promoted. The burden would then shift to the County to convince a jury that it was not a "but for" factor. Brown's evidence falls far short of the motivating factor threshold. First, two of the five officers who were promoted had not contributed to Sheahan's campaign. Second, Brown has not controverted the testimony of Sheahan and his deputies that they either did not know Brown or did not know his political affiliation. Third, the fact that Sheahan promoted a female officer who was the subject of a serious misconduct allegation is not relevant to Brown's First Amendment claim. It may have been relevant to a gender discrimination claim, but the district court refused to allow Brown to amend his complaint.

Tags: Opinion by Posner, Constitutional Law, First Amendment, Motivating Factor, Section 1983

Retaliatory Speech Did Not Rise To Level Of First Amendment Violation

Posted on December 19, 2011 by Michael Rigney

HUTCHINS v. CLARKE (October 24, 2011)

On May 17, 2007, callers to a popular Milwaukee radio call-in show were discussing the performance of Milwaukee County Sheriff David Clarke, and particularly his relationship with African-Americans. Deputy Sheriff David Hutchins criticized Clarke during his call. In response, Sheriff Clarke called the show and was critical of Hutchins. Specifically, he suggested that Hutchins held a grudge because Clarke had disciplined Hutchins years earlier for sexual harassment. Hutchins brought suit pursuant to § 1983, alleging that Clarke violated his First Amendment rights by retaliating against him. He also brought claims under Wisconsin's Open Records Law and Right of Privacy statute. Magistrate Judge Callahan (E.D. Wis.) granted summary judgment to Hutchins. Clarke appeals.

In their opinion, Seventh Circuit Judges Bauer, Flaum, and Williams (concurring) reversed. The Court first summarily disposed of the state Open Records Law claim. That law deals with access to government records and limits access to government employees' disciplinary records. Although this case is about a disciplinary record, there was no request for access to that record -- the law simply does not apply. The Court turned to the Right of Privacy statute. The statute creates a right of action for "invasion of privacy." But it explicitly excludes from its definition the communication of any information that is a matter of public record. The Court disagreed with the magistrate's conclusion that Hutchins’ disciplinary record was not a matter of public record. The district court never engaged in the balancing test required by the Open Records Law to determine whether the record is a public record. Since the balancing test is a matter of law, the Court engaged in its own analysis. Although it found factors in favor of both privacy and disclosure, it concluded that the public interest in disclosure was not outweighed by the interest in keeping it private. Thus, Hutchins’ disciplinary record should be considered a matter of public record and his Right of Privacy claim fails. Finally, the Court turned to the only federal claim, the First Amendment retaliation claim. One of the elements of the claim is that there be some retaliatory action, although it need not rise to the level of an adverse employment action. It must be enough of an action, however, to chill further speech. Here, the retaliatory action is itself speech, which also must be afforded some protection. The Court looked to other circuits and district courts within its circuit and agreed that for such speech to be retaliatory, it must be threatening, harassing, or intimidating. Concluding that Sheriff Clarke's speech was not, the Court reversed the First Amendment retaliation claim.

Judge Williams wrote separately, concurring in the opinion and expressing her views on the panel's disposition of the First Amendment retaliation claim. Judge Williams emphasized the Court's precedent that retaliatory speech that is likely to deter a person for exercising First Amendment rights may be actionable, even if not threatening, harassing, or intimidating.

Tags: Opinion by Bauer, Constitutional Law, First Amendment, Privacy, Section 1983

Domestic Violence Victim Fails To Adequately Plead Equal Protection Claim Against City

Posted on December 15, 2011 by Michael Rigney

MCCAULEY v. CITY OF CHICAGO (October 20, 2011)

Glenford Martinez was released from prison in 2006, after serving 13 years for attempted murder. The following year, he was arrested for domestic battery after he allegedly choked his former girlfriend, Mersaides McCauley. Martinez could have been held without bail had the Illinois Department of Corrections issued a parole violation warrant. They did not -- and he was released on bail. McCauley obtained an order of protection, but to no avail. Martinez continued to violate the order. In early 2008, Martinez shot and killed McCauley and then killed himself. McCauley's estate brought a number of federal and state claims against numerous defendants, including an equal protection claim against the City of Chicago and Roger Walker, the then-IDOC Director. Judge St. Eve (N.D. Ill.) dismissed the federal claims and declined to exercise jurisdiction over the state claims. With respect to the equal protection claims, she concluded that female victims of domestic violence are not a protected class and that Eleventh Amendment sovereign immunity precluded any recovery against Walker in his official capacity. The court denied the estate's request to conduct discovery to support a personal capacity claim against Walker. The estate appeals.

In their opinion, Seventh Circuit Judges Manion, Sykes, and Hamilton (dissenting in part) affirmed. The Court criticized the district court's analysis but ended up with the same result. The Court approached the case by asking whether the complaint sufficiently pleaded facts that would allow an inference that the City maintained a "policy, custom, or practice" of discrimination against a group to which McCauley belonged. Twombly and Iqbal require specific facts that support the legal claims, rather than legal conclusions and conclusory allegations. After disregarding the complaint's legal conclusions, the Court found that the factual allegations did not satisfy the Monell standard. In fact, the factual allegations alleged that the City failed to provide special protection to female victims of domestic violence, not that it failed to provide equal protection. The equal protection claim against the City was properly dismissed. The Court also affirmed the denial of discovery related to the Walker personal capacity claim, although again for different reasons. Given that there is nothing in the record to suggest that Walker had any personal involvement in Martinez' parole, the district court's refusal to allow discovery on the issue was not an abuse of discretion.

Judge Hamilton dissented from the majority's dismissal of the equal protection claim against the court City. His dissent was primarily an attack on Iqbal, its heightened pleading requirements, its inconsistency with other rules and practice, and its difficulty in application. He believed that the estate's complaint adequately alleged an equal protection claim by alleging that the City treated domestic violence less seriously than other crimes and that it had a custom of doing so. Even if he concluded that the complaint fell short, however, he would have remanded to give the estate an opportunity to amend its pleading to meet the heightened standard.

Tags: Opinion by Sykes, Iqbal, Twombly, Civil Procedure, Civil Rights, Constitutional Law, Equal Protection, Opinion (Dissenting In Part) By Hamilton

Evidence Unknown To Officer In Excessive Force Case Is Admissable If It Tends To Impeach Witness' Testimony

Posted on December 15, 2011 by Michael Rigney

COMMON v. CITY OF CHICAGO (October 20, 2011)

Chicago police officers Guy Nelson and Sean O'Brien responded to a call that a robbery suspect could be found in a south-side convenience store. As they approached the store, they saw three men that fit the description they had been given by the store owner leaving the store. Considering the inconsistent evidence in a light most favorable to the officers, a) Officer Nelson identified himself, b) Nelson ordered the three men to stop and show their hands, c) two of the three men complied, d) Michael Smith did not comply (even after repeated requests), e) Nelson removed a gun from his pocket, f) Smith grabbed for the wrist of Nelson's gun-hand, and g) Nelson fatally shot Smith. The medical examiner found five small bags of cocaine in Smith's chest and trachea and concluded that they made their way there through the upper airway. Smith's estate brought suit against the officers and the City, alleging excessive force. Judge Kennelly (N.D. Ill.) ruled, in limine, that the cocaine evidence was admissible. After trial, a jury found in favor of the defendants. Smith's estate appeals.

In their opinion, Seventh Circuit Judges Posner, Rovner, and Tinder affirmed. The question for the jury in this case was whether Officer Nelson's actions were objectively reasonable, given the facts and circumstances known to him at the time. The general rule is that the jury should not consider information that the officer did not know at the time of his actions. The Court noted two exceptions to the general rule -- to challenge the credibility of a witness 1) by attacking his capacity to observe, recall, or relate or 2) by pointing out contradictions in his testimony. Here, the testimony of the various witnesses was inconsistent. The estate's version was that Smith complied with the officers' request and stood quietly, with arms raised, when Officer Nelson shot him. The evidence that Smith possessed five small bags of cocaine makes it more likely that his conduct fit the description given by the officers rather than that of the other witnesses. It would, for example, explain why he was less willing to cooperate and why he did not want to face the officers and show his hands. It therefore fits within the exception to the rule that the jury should only consider what the officer knew. The Court added that the district court could have excluded the evidence on unfair prejudice grounds. Appellate review of a district court’s findings in this area is quite deferential. The Court concluded that the district court did not err in admitting the evidence.

Tags: Opinion by Rovner, Constitutional Law, Excessive Force, Undue Prejudice

City's Time, Place, And Manner Restrictions Did Not Violate First Amendment

Posted on November 29, 2011 by Michael Rigney

MARCAVAGE v. CITY OF CHICAGO (October 4, 2011)

In July of 2006, Chicago played host to the seventh annual Gay Games, which consisted of a number of athletic and cultural events over several days. A number of volunteers from Repent America, a Christian ministry, appeared at various Gay Game venues to share their particular message about homosexuality. On July 15, the volunteers demonstrated around Soldier Field, where the opening ceremonies were taking place. A Chicago police officer directed the group off a public sidewalk and onto an adjacent gravel field. On July 16, volunteers arrived at Navy Pier for a similar demonstration. Again, Chicago police officers directed the group away from Navy Pier and the adjacent Gateway Park because they did not have a permit. A few volunteers were ultimately arrested. On July 22, one of the volunteers paced back and forth on the sidewalk outside of Wrigley Field, where the closing ceremonies were taking place. A Chicago police officer arrested him when he refused to stop his demonstration and "keep walking." The Repent America volunteers filed suit against the City of Chicago, several police officers, and the Metropolitan Pier and Exposition Authority (which owns Navy Pier and Gateway Park). They alleged violations of the First Amendment, the Fourteenth Amendment’s equal protection clause, the Fourth Amendment, the Illinois Religious Freedom Restoration Act, and state law. Judge Shadur (N.D. Ill.) granted summary judgment to the defendants. Plaintiffs appeal.

In their opinion, Seventh Circuit Judges Bauer, Manion, and Hamilton affirmed in part and reversed in part. The Court first addressed the First Amendment and equal protection claims related to the activities at Soldier Field and Wrigley Field. The Court conceded that the public sidewalks outside these two venues are traditional public forums and that access could not be broadly denied. But the time, place, and manner of activities at those locations can be regulated if the regulation: a) is content neutral, b) is narrowly tailored in support of a significant government interest, and c) allows for alternatives. The Court found that the police conduct at Soldier Field and Wrigley Field met those requirements. Plaintiffs presented no evidence of any police hostility to their message and, at both venues, they were simply directed away from busy pedestrian sidewalks and into locations where they could, and did, deliver their message. There was no First Amendment violation. The Court also concluded that there was no equal protection violation, in that plaintiffs were unable to identify similarly situated individuals that received preferential treatment. The Court also concluded that the arrest at Wrigley Field was not a Fourth Amendment violation. There was probable cause to believe that the volunteer was committing the offense of disorderly conduct. The Court turned to the allegations concerning the demonstration at Navy Pier and Gateway Park. The MPEA has a written policy for public expression at those venues. The policy requires a permit. The Court upheld the policy with respect to Navy Pier. Navy Pier is principally a private enterprise with some public benefits. The Policy for permits is first-come, first-served and viewpoint neutral. The volunteers never applied for a permit and there is no evidence in the record that the MPEA was hostile toward their views. Unlike Navy Pier, Gateway Park is a traditional public forum. The policy must be considered under the content neutral, narrowly tailored, ample alternative test. The Court was particularly troubled by the requirement that a group as small as five had to apply for a permit and give seven days notice and that a group smaller than five (including, apparently, an individual) also had to apply for a permit but without any notice requirement. The Court noted that five of its sister circuits have found permit requirements for groups as small as 10 constitutionally suspect. Ultimately, the Court concluded that the constitutionality of the Gateway Park permit requirement had to be considered in light of all the facts and circumstances, which were not addressed below. It remanded the claim for further proceedings. For much the same reasons as applied to the Soldier Field and Wrigley Field claims, the equal protection and Fourth Amendment summary judgment orders relating to Navy Pier and Gateway Park were affirmed.

Judge Hamilton concurred with the parts of the opinion relating to Soldier Field, Wrigley Field, and Navy Peer. He dissented from that portion of the opinion remanding the Gateway Park claims to the district court. He posited that plaintiffs waived the argument by not presenting it in a timely manner in the district court.

Tags: Opinion by Bauer, Constitutional Law, Equal Protection, First Amendment, Fourteenth Amendment, Fourth Amendment, Opinion (Dissenting In Part) By Hamilton, Probable Cause, Waiver

Graduation Ceremony In Church Did Not Violate The First Amendment

Posted on October 25, 2011 by Michael Rigney

DOE v. ELMBROOK SCHOOL DISTRICT (September 9, 2011)

Prior to 2000, Brookfield Central and Brookfield East High Schools in Brookfield, Wisconsin held their graduation ceremonies in their gymnasiums. The venues were generally considered quite uncomfortable -- hot, cramped, uncomfortable seating. Central's senior class officers for the Class of 2000 recommended to the school and District that the ceremony be moved to the Elmbrook Church, a local non-denominational Christian institution. The school adopted the recommendation and held its graduation ceremony at the Church from 2000 until 2010, when it moved the ceremony to its newly-constructed district fieldhouse. Brookfield East traveled a similar path and held its graduation ceremony at the Church from 2002 until 2010. Both the inside and the outside of the Church reflect its Christian heritage. There are crosses and other religious symbols outside the church. The lobby, through which all visitors must pass, contains religious banners and symbols as well as tables with religious literature. A large cross hangs in the sanctuary, where the ceremony takes place. Bibles and hymnals can be found in all the pews. Several parents objected to the ceremonies' venue. A group of current and former students and their parents brought suit against the District alleging that the practice violated the First Amendment. Chief Judge Clevert (E.D. Wis.) granted summary judgment to the District. Plaintiffs appeal.

In their opinion, Seventh Circuit Chief Judge Easterbrook and Judges Flaum (dissenting in part), and Ripple affirmed. The Court first addressed justiciability, given the renovation of both gymnasiums and the construction of a new fieldhouse. All 2010 ceremonies were held in those facilities and the District has no present intention to use the Church again. But the Supreme Court has said that a defendant's voluntary decision to stop allegedly wrongful conduct does not make a case moot unless the party seeking mootness meets a heavy burden of proving that the behavior cannot be expected to recur. The District did not meet that burden. Although the District does not currently intend to use the Church again, it has not officially ruled it out. Next, the Court addressed the fact that the plaintiffs were proceeding anonymously, as Does. Although anonymous litigation is disfavored and the Court was mildly critical of the district court's failure to explain his reasoning in granting the motion, the Court nevertheless found no abuse of discretion. Nothing in the record suggests that the district court did not carefully consider the question and apply the proper legal standard and the basis for the ruling is fairly apparent from the eight sworn declarations presented by the plaintiffs. Given the intensely emotional nature of religious beliefs and the fact that some of the plaintiffs are children, the district court was well within its discretion to conclude that the plaintiffs' privacy interest outweighed the public interest in transparent judicial proceedings. The Court turned to the merits. The Supreme Court developed a three-pronged test in Lemon for Establishment Clause cases. A practice violates the clause if it has no legitimate secular purpose, if it advances or inhibits religion as its primary effect, or if it fosters excessive entanglement with religion. The Court concluded that the District did not violate the First Amendment: a) the students were not forced to participate in any religious exercise, as was the case in Lee, b) the iconography was not associated with the District, c) an objective observer would not assume that the presence of religious paraphernalia suggested the District’s endorsement thereof, d) the District has not sponsored any religious display, e) the students and the district selected the Church for totally secular purposes, f) there is no evidence that the Church used the event to influence the ceremony or that the District used the event to endorse religion, and g) the use of taxpayer funds for the Church rental was appropriate as a standard fee for use arrangement.

Judge Flaum concurred in the majority's opinion with respect to justiciability and anonymity but dissented on the merits. He concluded that a public school graduation at a church where there are both live human beings and inanimate objects urging religious messages on children violated the Establishment Clause. In his view, the venue's "sheer religiosity" conveyed a message of District endorsement.

Tags: Opinion by Ripple, Constitutional Law, Establishment Clause, First Amendment, Mootness, Opinion (Dissenting In Part) By Flaum

State's Significant Control Over In-Home Service Providers Makes It An Employer

Posted on October 7, 2011 by Michael Rigney

HARRIS v. QUINN (September 1, 2011)

The Illinois Department of Human Services runs two programs that provide in-home care to Illinois residents. One is operated by the Division of Rehabilitation Services and the other is operated by the Division of Developmental Disabilities. In both programs, eligible individuals work with program counselors to develop individual service plans. In the Rehabilitation Program, once a service plan is in place, the eligible individual may select any qualified personal assistant to implement the plan. The individual and the assistant enter into employment agreement, the terms of which are dictated by the Department. In 2003, after the Illinois legislature passed a law designating the personal assistants as state employees for collective bargaining purposes, a majority of the Rehabilitation Program personal assistants voted to unionize. A majority of the Disability Program personal assistants rejected unionization. The collective bargaining agreement between the Rehabilitation Program Union and the State contains a "fair share" provision that requires personal assistants who are not members of the union to pay a proportionate share of the collective bargaining costs. In 2010, personal assistants from both programs filed suit against the Governor and the unions. They alleged that the fair share fees violated the First Amendment. The Disability Program personal assistants alleged that they were harmed by the threat of a future agreement. Judge Johnson-Coleman (N.D. Ill.) dismissed the Rehabilitation Program claim for failure to state a claim and dismissed the Disability Program claim on jurisdictional grounds. The personal assistants appeal.

In their opinion, Seventh Circuit Judges Manion, Wood, and Hamilton affirmed and remanded. The Court first addressed the Rehabilitation Program plaintiffs. It remarked that there is a long line of Supreme Court cases approving fair share agreements. The Court rejected plaintiffs' contention that the Supreme Court cases were not controlling because the personal assistants are employees of the patients, not the state. The Court relied on the ordinary definition of employer -- one who directs the activities of a worker under a contract and pays his wages -- as well as the concept that an employee can have more than one employer. The Court gave the legislative designation no weight but, instead, looked at the State's relationship to the personal assistants. It concluded that the state has significant control -- it sets qualifications, defines job responsibilities through the service plan, and pays the wages, among other things. The Court concluded that this significant amount of control made the State an employer. It also rejected plaintiffs' argument that the Supreme Court cases should not apply because of their unique circumstances. The Court turned to the Disabilities Program personal assistants’ claim. It agreed with the district court that that claim was not ripe in that it rested on future events that may or may not occur. The Court did conclude that the district court erred in dismissing the Disability Program claim with prejudice. A claim dismissed on ripeness grounds is typically dismissed without prejudice. The Court remanded for the proper dismissal.

Tags: Opinion by Manion, Constitutional Law, Fair-Share Agreement, First Amendment, Labor & Employment, Ripeness

Inconsistent Stories And Unexplained Bruises Provided Probable Cause For DCFS Investigator

Posted on September 30, 2011 by Michael Rigney

HERNANDEZ v. FOSTER (August 26, 2011)

Fifteen-month-old Jaymz Hernandez’ parents brought him to the hospital where x-rays established that he had a broken arm. The Hernandezes reported that they thought he had fallen out of his crib. Although the fracture was common in children, a hospital nurse was suspicious. The parents had slightly inconsistent stories about the circumstances of the injury and about whether Jaymz could walk. Jaymz also had unexplained, old bruises. The nurse reported her suspicions to the Department of Children and Family Services. Although the DCFS instructed the hospital to release Jaymz to his parents, it also began an investigation, which it assigned to Pamela Foster-Stith. Foster-Stith interviewed the nurse and doctor and prepared an action plan for a home visit and risk assessment. After receiving the approval of her supervisor, she sent investigator Lakesha Foster to the home. Foster found nothing particular suspicious in her visit. Nevertheless, given the injury and the inconsistent stories, Foster and Foster-Stith wanted a home safety plan. The family resisted. Foster-Stith, in consultation with her supervisor, decided that the Department had to take Jaymz into protective custody. She communicated that decision to Foster, who was still at the family's home. Foster explained the decision to the family, including the fact that they could not have contact with Jaymz during the custody period, and took Jaymz in the custody. Jaymz was placed with his great-grandparents. The next day, two different doctors examined Jaymz. Both concluded that the injury was not suggestive of abuse. Foster also spoke with an assistant state's attorney, who advised her that there was not enough evidence to seek protective custody. Although the Department decided to terminate its protective custody, Foster would still not let the family visit Jaymz. The next day, Foster presented a safety plan to the Hernandezes which would require Jaymz to remain with his great-grandparents with supervised visitation by his parents. After being told that they could not see Jaymz without agreeing to the safety plan, the Hernandezes agreed. The Hernandezes signed another safety plan the following week, which the Department later agreed to terminate. The Hernandezes brought suit pursuant to § 1983 for violations of the Fourth and Fourteenth Amendments, naming Foster, Foster-Stith, and the supervisor. Judge Conlon (N.D. Ill.) granted summary judgment to the defendants on qualified immunity grounds. The Hernandezes appeal.

In their opinion, Seventh Circuit Judges Sykes, Tinder, and Hamilton affirmed in part and vacated and remanded in part. The question for a qualified immunity defense is whether the defendants violated a clearly established constitutional right. The Court considered each plaintiff’s claims separately. First, all three plaintiffs asserted substantive due process claims with respect to the initial seizure. The Court noted that since Jaymz had a Fourth Amendment claim, he could not assert a substantive due process claim. With respect to Jaymz’ Fourth Amendment claim, the Court concluded that the removal was supported by probable cause. It relied on the unexplained injury, the older injury, and the inconsistent and contradictory statements of the parents. Therefore, the defendants were entitled to qualified immunity on that claim. The parents’ substantive due process claims fail for the same reason. Second, the Court addressed the plaintiffs' substantive due process claims relating to the continued withholding. This claim arises from a right to familial relations. The defendants needed reasonable suspicion of abuse to override that right. Again, however, the court concluded that Jaymz’ claim was properly analyzed under the Fourth Amendment while his parents' claims should be analyzed under substantive due process. Here, the Court found genuine issues of material fact with respect to defendants' knowledge that the continued withholding violated constitutional rights. The Court relied heavily on the normal physical exams and the assistant state's attorney's response. Summary judgment was improper. Third, the Court addressed the substantive due process claims regarding the allegedly coerced safety plan. The Court concluded that the defendants had no reasonable suspicion that Jaymz was in danger of abuse when they presented the safety plan. The alleged threats were extremely coercive. The Court concluded that the district court erred in granting summary judgment on those claims. Next, the Court considered the plaintiffs' procedural due process claims. The basis of these claims was that the defendants took Jaymz into custody without any pre-deprivation hearing. Here, the Court concluded that the case law at the time of the removal would not have put a reasonable Department investigator on notice that a pre-deprivation hearing was required. The defendants were therefore entitled to qualified immunity on the due process claim relating to the removal. Again, however, the Court found genuine issues of fact on the due process claim with respect to the safety plan. With the allegations of misrepresentations and coercion, qualified immunity would be appropriate.

Tags: Opinion by Tinder, Civil Rights, Constitutional Law, Fourth Amendment, Probable Cause, Procedural Due Process, Qualified Immunity, Section 1983, Substantive Due Process

Expert Testimony Was Not Required To Show Inadequate Medical Care Claim Causation

Posted on September 30, 2011 by Michael Rigney

ORTIZ v. CITY OF CHICAGO (August 25, 2011)

Acting pursuant to a confidential tip, the Chicago Police raided May Molina's apartment. They placed Molina under arrest. Molina happens to be a local civil rights activist and a harsh critic of police practices. Molina also suffers from diabetes, hypertension, and a thyroid condition. She takes medications for those conditions. Pursuant to department policy, she was not allowed to take her medication into the lockup. Molina died after approximately 27 hours of confinement. Her estate brought suit against a number of police officers involved in her detention pursuant to § 1983, alleging constitutionally inadequate medical care and an unreasonable delay in providing her a probable cause hearing. Judge Grady (N.D. Ill.) excluded the estate's expert witness and granted summary judgment to the defendants on both claims. The estate appeals.

In their opinion, Seventh Circuit Judges Rovner, Wood, and Evans (who, as a result of his death, took no part in the decision) affirmed in part and reversed and remanded in part. The Court first addressed the inadequate medical care count. It pointed out that, since Molina had not yet had a probable cause hearing, her estate’s claim was governed by the Fourth Amendment reasonableness standard and not the Eight Amendment deliberate indifference standard. Since the defendants did not argue burdensomeness or police interest, the only reasonableness factors at issue are whether each individual defendant was on notice of a serious medical condition and causation. With respect to notice, the Court identified the allegations with respect to each individual defendant and concluded, in each case, that the allegations created genuine issues of fact. Considering the evidence in the light most favorable to Molina, each individual defendants either heard her ask for medical attention, heard her cry for help, were told by her lawyer that she needed to be hospitalized, or received numerous telephone calls from friends and relatives advising that she needed her medication. Therefore, the Court concluded that each was on notice of her serious medical condition. With respect to causation, the question is whether, had the defendants responded and taken her to the hospital, she would not have died or suffered pain and suffering. The district court applied too narrow a test when it required the estate to prove that it was the failure to provide her medication that caused her death. Because the defendants' expert testified that she died from an overdose of drugs she ingested at the time of the police raid, and because the district court excluded the estate’s expert testimony that she died because she was not giving her medication, the district court concluded that the estate failed to prove causation. But the estate did not need to prove that it was the lack of medication -- it only needed to prove that it was the failure to take her to the hospital. The Court therefore concluded that the expert testimony was not even required on that point. There was enough lay testimony in the record to establish causation. The Court also found the district court improperly excluded the expert testimony because of its misunderstanding of the factual record. With respect to the defendants' qualified immunity claim, the Court had no difficulty concluding that failing to provide medical care to a prisoner with a serious health risk satisfied the estate’s burden (without deciding whether it should apply the deliberate indifference or objectively unreasonable standard). On the unreasonable delay count, the Court agreed with the district court. The Supreme Court adopted a 48-hour burden shifting rule in Gerstein. Therefore, this 27-hour detention is presumptively reasonable. The estate failed to overcome the presumption.

Tags: Opinion by Wood, Civil Rights, Constitutional Law, Deliberate Indifference, Eighth Amendment, Expert Testimony, Fourth Amendment, Inadequate Medical Care, Reasonableness, Unreasonable Delay

With No Effectual Pre-Deprivation Remedy, Adequate Post-Deprivation Remedies Satisfy Due Process Concerns

Posted on September 27, 2011 by Michael Rigney

TENNY v. BLAGOJEVICH (August 25, 2011)

An Illinois statute regulates prison commissaries’ sale of goods to inmates. Except for tobacco products, it prohibits any markup over cost in excess of 25%. A 2006 Illinois Inspector General audit concluded that the Illinois Department of Corrections was violating the statute and recommended corrective action. The Department rejected the recommendations and maintained its pricing. Several inmates at the Stateville Correctional Center in Joliet filed grievances. The grievances were denied. The inmates filed two separate lawsuits in federal district court pursuant to § 1983, alleging violations of their Fourteenth Amendment procedural due process rights and violations of the Illinois Constitution. Judges Norgle and Pallmeyer (N.D. Ill.) dismissed the complaints for failure to state a claim. Plaintiffs appeal.

In their opinion, Seventh Circuit Judges Manion, Wood, and Hamilton affirmed and remanded. A procedural due process claim requires that the plaintiff allege a protected property interest, or legitimate claim of entitlement, under state law. Here, the Court assumed, without deciding, that the Illinois statutory cap created such a property interest. Even if there is a property interest, the inmates are not entitled to pre-deprivation review if it would be ineffectual. The Court concluded that no "process" would have prevented the Department from imposing its allegedly unlawful pricing policy. In this situation, an adequate post-deprivation remedy may satisfy due process. The inmates have not even alleged the inadequacy of a post-deprivation remedy. In fact, the Court concluded that the prison grievance procedures, a possible Court of Claims claim, and the availability of a state court claim were adequate post-deprivation remedies. Because both district courts dismissed the complaints with prejudice but neither district court addressed the state constitutional claim, the Court remanded the cases for dismissals of the state claims without prejudice.

Tags: Opinion by Manion, Civil Rights, Constitutional Law, Fourteenth Amendment, Post-Deprivation Remedies, Procedural Due Process, Property Interest

State High School Athletic Association Need Not Allow Newspaper To Stream Live Sporting Event

Posted on September 22, 2011 by Michael Rigney

WISCONSIN INTERSCHOLASTIC ATHLETIC ASSOCIATION v. GANNETT CO. (August 24, 2011)

The Wisconsin Interscholastic Athletic Association is a non-profit organization comprised of all (with a few exceptions) Wisconsin public high schools as well as many private high schools and public and private junior high and middle schools. Its purpose is to regulate interscholastic sports and promote good sportsmanship. The Association sponsors post-season tournaments. Pursuant to its media policy, the Association retains the exclusive right to transmit or stream live content during those games and further reserves the right to grant those rights to others. The policy prohibits any other live coverage of a game but allows the use of up to two minutes to be used in a regularly scheduled sports or news program or Internet story. The Association has had exclusive broadcast agreements for a number of decades. In 2005, however, the Association entered into a ten-year agreement with American-HiFi, pursuant to which American obtained exclusive rights to stream events online. The Association's policy and the American contract provided that a newspaper could stream a game live for a fee if American chose not to do so. Some local newspapers were unhappy with the Association’s stance. When a local Gannett newspaper streamed four football games online without permission, the Association filed an action for declaratory judgment. Gannett removed the case to federal court and filed counterclaims challenging several aspects of the Association's policies. It asserted violations of the First and Fourteenth amendments under § 1983. Chief Judge Conley (W.D. Wis.) granted summary judgment to the Association. He found that: neither the American contract nor the fee the Association charged a newspaper to stream a game violated the First Amendment, the Association did not have too much discretion to refuse streaming licenses, and the newspapers had no copyright in the games they streamed. Gannett appeals.

In their opinion, Seventh Circuit Judges Bauer, Wood, and Hamilton affirmed. The Court first addressed its jurisdiction, since there is no diversity and the Court concluded that there was no federal Copyright Act issue in the case. Since the case was one for declaratory judgment, the Court looked to the hypothetical well-pleaded complaint had the defendant brought suit. In that hypothetical complaint, Gannett alleges that the Association (a state actor) is violating its First Amendment rights. That claim clearly arises under federal law. Turning to the merits, the Court emphasized that the state actor, the Association, was acting in a proprietary rather than regulatory capacity. When acting in a regulatory capacity, a state's actions must merely be reasonable under the First Amendment. The Court rejected Gannett's viewpoint bias argument, both on the ground that there was no such bias and on the ground that the viewpoint neutrality rule was simply not applicable in this context. The Association is free to promote values of its own choosing, either directly or through contractual relationships. The Supreme Court, in its Zacchini decision, distinguished between a newspaper's right to report on an event and its right (or absence thereof) to broadcast the entire event. The case also makes it clear that an entertainment producer can charge a fee in exchange for the right to broadcast an event. Although Zacchini concerned private actors, Forbes applied the same principles to state actors. Applying those principles to the facts, the Court concluded that the Association's contract with American did not run afoul of the First Amendment. The Court turned to the question of the Association's raising revenue through its contract. It found Gannett's argument "radical and unsupported" and foreclosed by Supreme Court precedent.

Tags: Opinion by Wood, Constitutional Law, Copyright Act, Declaratory Judgment, First Amendment, Jurisdiction

Seventh Circuit Finds Enough Evidence Of Deliberate Indifference To Get To Jury

Posted on September 19, 2011 by Michael Rigney

ORTIZ v. WEBSTER (August 24, 2011)

Shortly after Arboleda Ortiz was incarcerated in the Terre Haute federal prison, an ophthalmologist diagnosed him with a pterygium, a thin film covering the eye, and recommended surgery. The prison denied the request. Someone wrote on the request "NO TOWN TRIPS." Over the next few years, two other doctors concurred with the surgery recommendation while a fourth doctor concluded that the condition was not serious enough for surgery. Dr. Thomas Webster, the prison medical director, reviewed Ortiz’ file and concluded that surgery was not medically necessary, but that it might be required within two years after further evaluation. Ortiz filed suit in 2005 under Bivens, alleging that Dr. Webster was deliberately indifferent to his medical needs. Ortiz eventually got the surgery while his lawsuit progressed. The district court originally granted summary judgment to Webster. On appeal, the Seventh Circuit reversed and remanded, identifying several fact disputes: a) the seriousness of Ortiz’ condition, given the several surgery recommendations, b) Dr. Webster's motivation, given that his stated reason for denying surgery was contrary to the medical record, and c) whether the "NO TOWN TRIP" reflected a prison policy against off-site trips for death row inmates. On remand, the author of the "NO TOWN TRIP" explained it away and Dr. Webster presented evidence that there was no prison policy against off-site medical treatment. Dr. Webster also presented expert testimony that his treatment was within the standard of care because surgical removal of the film is not necessary until there is corneal distortion. Judge McKinney (S.D. Ind.) granted summary judgment to Dr. Webster. Ortiz appeals.

In their opinion, Seventh Circuit Judges Bauer, Manion, and Kanne (dissenting) vacated and remanded. In order to prevail on summary judgment, Ortiz had to show both that his condition was objectively serious and that Dr. Webster knowingly disregarded it. The Court had no difficulty concluding that, at a minimum, there was a fact dispute as to whether the condition was objectively serious. The Court also concluded that Ortiz presented sufficient evidence to get to a jury on the deliberate indifference element. First, construing the evidence in Ortiz' favor, the conditions identified by the expert as requiring surgery actually existed when Dr. Webster refused surgery. Second, even when Dr. Webster refused surgery, he indicated the need for further evaluation and the possibility of the need for surgery within two years. But no further evaluation took place within the next two years. A jury could conclude that Dr. Webster's inaction unreasonably delayed the necessary surgery. Finally, the Court noted that the expert opinion that surgery was not necessary did not resolve the fact dispute -- it merely added one more opinion on the no-surgery side of the debate.

Judge Kanne dissented, taking issue with the majority’s treatment of the deliberate indifference prong. He pointed out that deliberate indifference in a medical context is especially hard to prove. A difference of opinion about a condition’s proper treatment is not enough. Judge Kanne saw nothing either in Dr. Webster's initial review of the file or his later treatment, even taking the facts in a light most favorable to Ortiz, that rose to the level of deliberate indifference.

Tags: Opinion by Bauer, Bivens, Civil Rights, Constitutional Law, Deliberate Indifference, Expert Testimony, Opinion (Dissenting) By Kanne, Summary Judgment

County Employee's Causation Evidence Falls Short

Posted on September 16, 2011 by Michael Rigney

EVERETT v. COOK COUNTY (August 24, 2011)

Cook County, Illinois faced a severe budget crisis in 2006. The County President instructed the Chief of the Bureau of Health to submit budget cut recommendations. One of the Bureau of Health functions was the Cermak Health Services, which provided medical and dental services to Cook County Jail inmates. The budget team identified Cermak’s dental program as a good source of some budget cuts. The Bureau Chief agreed to a recommendation that reduced the number of dentists from five to one. In deciding whom to keep among the five, the County looked for management experience, flexibility, productivity, and skills. The County ultimately chose Dr. Ronald Townsend as the dentist who best met those criteria. One of the five dentists who was not chosen was Dr. Carol Everett, a Caucasian woman who had been with Cermak for almost 25 years. Dr. Everett filed an appeal, which was denied. Everett filed suit under Title VII, alleging ethnicity discrimination, and under § 1983 and the Shakman decree, alleging political discrimination. Judge Kendall (N.D. Ill.) granted summary judgment to the County. Everett appeals.

In their opinion, Seventh Circuit Judges Kanne, Evans (who, due to his death, did not participate in the decision), and Sykes affirmed. The Court first addressed and rejected Everett's spoliation argument that the County destroyed certain documents containing notes concerning the layoffs. First, she did not identify any evidence of bad faith, a requirement before a negative inference is imposed. Second, the record does not support a conclusion that the documents were destroyed to eliminate adverse evidence. On the merits, the Court first addressed her political activity discrimination claim, in which she alleges that the decision to retain Everett was due to his political donations. The Shakman decree and the First Amendment prohibit firing an employee for political reasons. Under both theories, however, the plaintiff must show a causal relationship between the employment decision and the political considerations. Everett relied on procedural irregularities in the process to establish that causal relationship. The Court concluded, however, that her evidence was insufficient to establish such a relationship. Even if such a relationship had been established, however, Everett would still fall short because there is no evidence in the record that the decision-makers were aware of the political activity -- or lack thereof -- of either Everett or Townsend. The Court turned to the ethnicity discrimination claim. It concluded that Everett failed to show pretext. Although she provided some evidence of her possible superiority to Townsend in some areas, it was insufficient to show that the reasons the County gave for selecting Townsend were suspect. At most, they could show that the County made a hurried, poorly researched, and possibly poor decision. That is not enough to show pretext.

Tags: Opinion by Kanne, Shakman Decree, Causation, Civil Rights Act of 1964, Constitutional Law, Ethnicity Discrimination, First Amendment, Labor & Employment, Pretext, Section 1983, Spoliation, Title VII

Prisoner Adequately Alleged Religious Exercise Infringement

Posted on September 16, 2011 by Michael Rigney

MADDOX v. LOVE (August 24, 2011)

The Illinois Lawrence Correctional Center is a medium-security adult prison facility in Sumner, Illinois with approximately 2,000 inmates. Those inmates proclaim numerous different religious affiliations (46 as of May 2009). When Mannie Maddox arrived as an inmate in early 2004, he was a member of the African Hebrew Israelite (AHI) faith. AHI was one of the 17 religious affiliations for which Lawrence offered regularly scheduled services. Maddox attended services for about six months, until they were terminated. Maddox filed a grievance, asserting a denial of his right to exercise his religion. The prison denied the grievance on the grounds that Lawrence canceled the services for budgetary reasons. Maddox appealed the decision through two more stages of review without success. The prison chaplain also denied Maddox’ request to allow the AHI inmates to meet without a formal service. The prison requires that such meetings be supervised and the chaplain's schedule could not accommodate another religious gathering. Maddox filed a § 1983 complaint against the chaplain and the prison wardens alleging violations of his First and Fourteenth Amendment rights. Judge Gilbert (S.D. Ill.) restructured the pro se complaint into four counts. He dismissed for failure to state a claim the counts relating to discrimination in the allocation of the prison budget. He granted summary judgment on the two counts alleging failure to provide reasonable access to religious materials and failure to provide worship services, concluding that Maddox failed to exhaust his administrative remedies. Maddox appeals.

In their opinion, Seventh Circuit Judges Sykes, Tinder, and Hamilton affirmed in part and reversed and vacated in part. The Court first addressed its jurisdiction, since the district court dismissed the two counts on exhaustion grounds without prejudice. Normally a dismissal without prejudice would preclude appellate jurisdiction. Here, however, Maddox cannot cure the complaint’s defects. That makes the decision a final judgment for appellate jurisdiction purposes. On the merits, the Court first addressed the free exercise and religious discrimination counts. The Court understood the district court's dismissal of these counts, as they were restructured, given the principle that prisons need not provide identical resources to every faith within the prison population. An allegation of a disproportionate allocation of resources does not state a claim. The Court did find fault, however, with the district court's restructuring of Maddox' allegations and explored the substance of those allegations. Maddox alleged a disproportionate allocation of resources to other religions, a singling out of AHI for budget cuts, and refusal to pursue alternatives for AHI members. The Court found that those allegations did, in fact, state a claim for relief. Prisons cannot discriminate against particular religions. Although it is premature to conclude that they did here, Maddox is allowed to make his case. The Court turned to the access to religious materials claim. Since Maddox concedes that he did not grieve that complaint, the Court concluded that the district court properly dismissed that count. Finally, on the group worship claim, the district court dismissed because Maddox failed to exhaust administrative remedies. He did not name the individuals he complained of, as required by the then-current Illinois Administrative Code. The Court disagreed. First, prison officials never raised this procedural infirmity during any of the three grievance stages. Instead, they rejected the grievance on the merits at each stage. When the prison addresses a grievance on the merits without addressing any procedural defect, the grievance has obviously served its purpose in notifying prison officials of the prisoner's complaint. They cannot later rely on that procedural defect to make out an exhaustion defense. Second, the procedural infirmity here was caused by prison's own error. Maddox was given a form that complied with a prior version of the administrative code. It did not require the same degree of factual particularly as did the code in effect at the time of the grievance. Maddox provided all the information that was requested on the grievance form.

Tags: Opinion by Tinder, Civil Rights, Constitutional Law, Exhaustion of Administrative Remedies, First Amendment, Fourteenth Amendment, Free Exercise Of Religion, Section 1983

An Adequate Explanation For Otherwise Suspicious Conduct Does Not Negate Probable Cause

Posted on September 13, 2011 by Michael Rigney

SROGA v. WEIGLEN (August 18, 2011)

Chicago Police officers arrested Kevin Sroga 13 times between November 2003 and January 2008. Three are at issue on this appeal. First, he tried to stop a City employee from towing his car. A crowd gathered and a police officer instructed him to stand down. Instead, he jumped on the car as it was being towed away and was arrested for disorderly conduct. Second, only months later, he found himself in another confrontation with a City employee ready to tow one of his cars. This time, he got into the car and ignored repeated police requests to get out. One of the officers on the scene noticed a Chicago Police Department ticket book in yet another Sroga vehicle. He was arrested on suspicion of theft. Third, a year or so later, he was arrested for criminal trespass to "state-supported" land. He was taking a shortcut through a police station parking lot that was marked with signs that said "Parking Police Personnel Only." He brought suit against the City pursuant to § 1983, asserting that each of these three arrests was an unreasonable seizure. Judge Guzmán (N.D. Ill.) granted summary judgment to the defendants. Sroga appeals.

In their opinion, Seventh Circuit Judges Posner, Kanne, and Hamilton affirmed. The Court addressed each of the three arrests in turn. With respect to the first arrest, the Court noted that disorderly conduct is not particularly well-defined. One of its definitions is to provoke a "breach of the peace." The Restatement (Second) of Torts defines breach of the peace as an offense "likely to cause an immediate disturbance of public order." The Court concluded that jumping on a moving car being towed away fit that description. The Court rejected Sroga's argument that a police bulletin warning officers that courts typically throw out disorderly conduct cases when the complaining witness is a police officer amounted to some limitation on this arrest. With respect to the second arrest, the Court found probable cause that Sroga exercised control over the ticket book knowing that it was not his and without any effort to return it to its rightful owner. The fact that Sroga may have had an explanation for the ticket book’ presence (which the Court doubted) did not negate probable cause. As an aside, the Court added that Sroga could have been charged at either of the first arrests with resisting or obstructing the performance of a police officer in that he disobeyed lawful orders in both cases. Even though the charge was not identified by the officers at the time, it would have defeated his claims of unreasonable seizure. The Court turned to the third arrest for criminal trespass. Here, the Court concluded that the police did not have probable cause to arrest Sroga merely for crossing the parking lot. In order to make out a charge of trespass on state-supported land, there must be some indicia (a fence or signs) that put the public on notice that their entry is forbidden. The only signs here referred to the parking of cars. But the Court did find that Sroga's conduct in the parking lot, where he looked into several police cars and struck up a conversation with an officer, did give police probable cause to believe that Sroga was interfering with the lawful use of the land. The Court added that Sroga could not have been convicted of the offense since notice is a requirement -- and the notice was insufficient. Two officers stated that they thought the signs provided adequate notice and the Court found those understandings, although incorrect, not so unreasonable as to defeat probable cause.

Tags: Opinion by Posner, Breach Of The Peace, Civil Rights, Constitutional Law, Criminal Trespass, DIsorderly Conduct, Probable Cause, Unreasonable Seizure

Expert's Testimony Was Properly Excluded As Being Within A Layperson's Everyday Experience

Posted on September 12, 2011 by Michael Rigney

FLOREK v. VILLAGE OF MUNDELEIN, ILLINOIS (August 16, 2011)

After successfully completing a controlled marijuana buy at a Mundelein, Illinois apartment, the police obtained a search warrant. They executed the warrant late in the evening of December 7, 2004. Linda Florek and her son lived in the apartment (apparently, the son’s friend was the marijuana seller). Florek arrived home from work at approximately 10:00 p.m., at which point she enjoyed a marijuana cigarette. The police arrived at approximately 10:20 p.m. According to the police, they knocked and announced their presence and broke down the door after about 15 seconds without a response. The apartment still smelled of marijuana. Florek admitted to the police that she had hidden some marijuana upon their arrival. Florek and her son were handcuffed and kept in the living room during the one-hour search. The parties disagree about what happened next. According to Florek, she asked if she could take some baby aspirin because she was experiencing chest pains and thought she might be experiencing a heart attack. After the police rejected her request, she asked for an ambulance. The police told her to wait until they got to the police station. Florek also claims she told police she was having a heart attack before being placed in the van for transportation to the police station. According to the police, Florek did ask for a baby aspirin and they denied the request because of police policy that only physicians administer medication. Instead, they offered to summon paramedics if she needed help. She refused. The police concede that Florek complained about the choice of transportation to the police station but assert that she did not tell them of any chest pains until they were on their way. They immediately radioed for assistance and met an ambulance when they arrived at the police station, minutes later. Florek was taken to the hospital, where physicians confirmed that she had suffered a heart attack. Florek filed suit against the Village and individual police officer Hansen, alleging that: a) the denial of her request for baby aspirin was an unreasonable seizure, b) that the refusal to call an ambulance was an unreasonable seizure, and c) that the police's failure to wait a reasonable time after the knock and announce amounted to an unreasonable search. Magistrate Judge Valdez (N.D. Ill.) denied summary judgment on the knock and announce and ambulance claims and granted summary judgment to the defendants on the aspirin claim on qualified immunity grounds. At trial, after the close of plaintiff's case, the court directed a verdict for the Village. After trial, the jury found against Florek on the remaining claims. Florek appeals.

In their opinion, Seventh Circuit Judges Flaum and Sykes and District Judge Conley affirmed. The appeal raised three challenges: the summary judgment on the aspirin claim, the directed verdict for the Village, and the exclusion of an expert on the knock and announce claim. The Court rejected each. It first addressed the qualified immunity on the aspirin claim. The qualified immunity analysis involves two questions: whether there is a constitutional deprivation and whether the right at issue was clearly established at the time. If either question is answered no, the defendant is entitled to qualified immunity. Although the magistrate judge found qualified immunity by answering the clearly established prong in the negative, the Court affirmed by answering the deprivation prong in the negative. In the medical needs context, a seizure is unconstitutional if an arresting officer does not respond reasonably considering the totality of the circumstances. Here, the Court criticized the way the case was litigated in the district court. Since the aspirin claim and the ambulance claim were, in fact, both part of the same arrest and both were included in the totality of circumstances, they should have been presented as one claim. Nevertheless, the Court addressed the aspirin claim as a distinct claim. The Court considered the four Williams factors: the officer's notice of a medical need, the seriousness of the need, the requested treatment, and any police interests. Here, the officers were not on notice of a serious medical condition, the requested treatment was minor, the police were conducting a search for illegal drugs, and the officers summoned an ambulance when they were on notice of a serious medical condition. Therefore, the Court concluded that the officer was entitled to summary judgment on the aspirin claim. Florek’s only argument with respect to the directed verdict for the Village also related to the aspirin claim. Given the court's resolution of the individual claim, the directed verdict was appropriate. On the knock and announce claim, Florek presented expert testimony to the effect that no reasonable officer would expect a response from an apartment’s resident within 15 seconds at that time of night. The magistrate judge excluded the evidence on the grounds that the subject matter was within a layperson’s normal comprehension. Evidence Rule 702 requires that expert testimony "assist the trier of fact" in determining a fact issue. That generally means that the expert must have some specialized knowledge or experience that will help the trier of fact understand the testimony’s subject matter. Here, the Court concluded that the magistrate judge did not abuse her discretion in excluding the testimony. In some circumstances, expert testimony might be helpful in determining whether officers waited a reasonable time before forcefully entering a residence. A witness with expertise in law enforcement might offer testimony about how drugs are disposed of or what dangers await police officers in such a situation. But testimony about how long it would take a person to answer the door late at night is within the everyday experience of a layperson.

Tags: Opinion By Flaum' , Civil Rights, Constitutional Law, Expert, FRE 702, Testimony", Unreasonable Search, Unreasonable Seizure

School District's Failure To Protect Teacher From Harm Did Not "Shock The Conscience"

Posted on September 6, 2011 by Michael Rigney

JACKSON v. INDIAN PRAIRIE SCHOOL DISTRICT 204 (August 11, 2011)

Paula Jackson is a special education support teacher for Indian Prairie School District 204. Her role was to assist the classroom teachers by providing individual support for special needs students. Beginning with the 2005-2006 school year, she was assigned to the White Eagle Elementary School. For the following three school years, she had responsibility for W. K., a troubled boy prone to violence. Over those three years, she witnessed episode after episode of erratic and violent behavior. The district held Individual Education Plan meetings in April 2006, June of 2006 , September of 2006, May of 2007, June 2007, October 2007, and March 2008. By the early 2007 meetings, Jackson recommended that the W.K. be transferred. Jackson also requested that he be reassigned to a different support teacher. Before either of those things happened, W.K. had another outburst. The school principal calmed him down and instructed Jackson to meet with him. When she arrived at his room, he swung a chair at her. In the ensuing struggle, she fell and was injured. W.K. was suspended and never returned to White Eagle. Jackson brought suit against the school district and several administrators pursuant to § 1983, alleging a substantive due process violation. Judge St. Eve (N.D. Ill.) granted summary judgment to the defendants. Jackson appeals.

In their opinion, Seventh Circuit Judges Bauer, Posner, and Williams affirmed. The Court noted the two exceptions to the general rule that the due process clause does not impose a duty on a state to protect individuals from harm by private actors. One is when the state has custody over a person, which is not applicable here. The other, on which Jackson bases her claim, is when the state affirmatively places a person in danger. Under that exception, a plaintiff must establish that the defendant affirmatively created or increased the danger, that her injuries were the proximate result of the defendant's failure to protect her, and the failure to protect her "shocks the conscience." The Court resolved the case on that third prong. Although the "shocks the conscience" standard is not precisely defined, the Court noted that it requires conduct on the "more culpable end of the tort law spectrum of liability." The Court recited the facts that supported a finding of such conduct and those that supported the opposite conclusion. Although admitting that it was a close call, the Court concluded that they did not satisfy the due process standard.

Tags: Opinion by Williams, Constitutional Law, Shocks The Conscience, Substantive Due Process

Preventing The Creation Of Evidence Does Not Amount To Spoliation

Posted on September 2, 2011 by Michael Rigney

DURAN v. TOWN OF CICERO (August 9, 2011)

Alejandro and Maria Duran threw a party at their Cicero, Illinois home to celebrate their daughter’s baptism. Close to 100 people attended. The Cicero police received two telephone complaints from neighbors. Shortly after the Cicero police responded to the second complaint, the party guests and the police exchanged heated words. Once the police actually entered the property, ostensibly to make an arrest, the verbal melee became a physical one. Seventy-eight guests claim they were physically injured and several police officers required medical treatment. The police made seven arrests but there were no convictions. The 78 injured guests brought suit against 17 police officers and the Town of Cicero pursuant to § 1983 and Illinois law. They also asserted a spoliation of evidence claim based on the police's confiscation of two video cameras, one that was returned but that did not contain any footage of the physical confrontation and one that was not returned that did contain footage of the confrontation. Before trial, Cicero stipulated to his liability under § 1983 and to its vicarious liability on the state law claims. The jury returned verdicts in favor of 23 plaintiffs, on which the court entered judgment. The court then tried to spoliation case. It excluded from that case the issue of the returned video camera, rejecting plaintiffs' theory that preventing the creation of evidence amounts to spoliation. Cicero filed a Rule 59 motion to amend the judgments pursuant because they appeared to list separate awards against both the individual defendants and Cicero for the same injuries. Judge Grady (N.D. Ill.) denied the motion. Cicero appeals the denial of the Rule 59 motion. The plaintiffs cross-appeal.

In their opinion, Seventh Circuit Judges Ripple, Manion, and Sykes vacated and remanded in part and affirmed in part. The Court first addressed Cicero's appeal. It noted the fundamental principle that a plaintiff is only entitled to one recovery for his injuries. Here, Cicero had stipulated to its liability and that issue should not have been submitted to the jury. It was -- and they were obviously confused. In addition, instructions and special verdict forms asked damages to be assessed by defendant or by claim and not for a particular injury to a particular plaintiff. A Rule 59(e) motion is a proper way to correct a manifest error of law such as this. The Court concluded that it was reasonably clear what the jury was trying to do and remanded for an amended judgment to eliminate any possibility of double recovery. The plaintiffs raise three issues on appeal: the exclusion of the videotape, the exclusion of misconduct complaints against one defendant, and the exclusion of a civil rights conviction against another defendant. First, the Court agreed with the district court that the evidence regarding the returned video camera was properly excluded. Spoliation occurs only when one fails to preserve existing evidence. Here, plaintiffs argue that the videographer would have continued recording the physical melee, creating valuable evidence for trial. That does not amount to actionable spoliation in Illinois. Second, the Court concluded that the district court did not abuse its discretion in excluding four misconduct complaints accusing one of the defendants of verbally abusing minorities. The Court noted the substantial leeway a district court has in ruling on an issue like this that requires a balancing of the evidence’s probative value with its prejudicial effect. Third, the plaintiffs sought to introduce a criminal conviction on a civil rights charge against another officer. They argued admissibility under either Rule 609(a)(1) or 609(a)(2). The Court concluded that plaintiffs forfeited their (a)(1) argument because they did not renew it at trial after the court's conditional pretrial ruling excluding it. With respect to (a)(2), the Court concluded that, although there was some evidence of an attempted cover-up, the crime with which the officer was charged and convicted did not involve dishonesty.

Tags: Opinion by Sykes, Civil Procedure, Civil Rights, Constitutional Law, Damages, Evidence, Jury Instruction, Rule 59(e), Section 1983, Spoliation, Verdict Form

Bivens Remedy Is Available To U.S Citizen In A War Zone

Posted on August 31, 2011 by Michael Rigney

VANCE v. RUMSFELD (August 8, 2011)

In 2005 and 2006, American citizens Donald Vance and Nathan Ertel were working for a privately owned security company in Iraq. They allege that: a) they came to believe that their employer was engaged in illegal activity, b) they reported their suspicions to the FBI, c) they continued to share information with American officials in Iraq, d) their employer became suspicious and confiscated their credentials, e) American officials "rescued" them and seized their personal property, and f) they were detained, physically and psychologically abused, tortured, treated inhumanely, and assaulted for weeks. They were never charged with a crime and were eventually released. Plaintiffs brought suit against former Secretary of Defense Donald Rumsfeld and other, unidentified defendants. The complaint alleged unconstitutional inhumane treatment, denial of procedural due process, and denial of access to the courts. They also brought a claim against the United States for the return of their personal property. Judge Andersen (N.D. Ill.) dismissed the due process and access claims but refused to dismiss the inhumane treatment claim or the personal property claim. Rumsfeld appeals the inhumane treatment claim -- the United States appeals the personal property claim.

In their opinion, Seventh Circuit Judges Manion (concurring in part, dissenting in part), Evans, and Hamilton affirmed in part and reversed in part. The Court first addressed the Bivens claim against Rumsfeld. It identified three issues: whether there were adequate allegations of Rumsfeld's personal responsibility, whether Rumsfeld was entitled to qualified immunity, and whether a Bivens remedy is even available to a United States citizen in a war zone. First, the Court concluded that the complaint adequately alleged Rumsfeld's personal involvement and responsibility under Rule 8 and Iqbal and Twombly. The complaint alleged, among other things, that Rumsfeld approved a list of interrogation techniques contrary to the Army Field Manual, that he directed that those techniques be used in Iraq, that he was well aware of detainee abuse generally, that he took no action in response to the Ronald W. Reagan National Defense Authorization Act's directive to ensure that detainees were treated in a humane manner, that he continued to approve interrogation techniques not authorized by the Army Field Manual even after the Detainee Treatment Act's limitations of techniques to those authorized in the manual, and that he did not investigate or correct detainee abuse. The Court found that those allegations sufficiently alleged his personal involvement in the policies that led to plaintiffs’ torture and that he was deliberately indifferent to their mistreatment. The Court turned to the issue of qualified immunity and the Saucier two-step test. The Court had little difficulty in concluding that the alleged treatment, if true, "shocks the conscience" and violates substantive due process. In fact, Rumsfeld did not really argue otherwise. Likewise, the Court had little difficulty in concluding that a reasonable United States official would have known that the alleged treatment, if true, would amount to a constitutional violation. Finally, the Court turned to the central issue -- whether Bivens allows a suit for damages by a United States citizen alleging unconstitutional treatment occurring in a war zone. The Court applied the Supreme Court's two-step test: 1) is there a sufficient alternative remedy for the wrong and 2) do "special factors" weigh against recognizing the remedy. Finding no alternative remedy, it focused on the second step. In addressing in the second step, the Court emphasized that the complaint was not a broad challenge to the country’s interrogation or detention policies. It was, instead, a narrow claim for damages. The court found its key elements familiar: a) Bivens has been used by prisoners who have asserted abuse in federal prisons, b) Bivens has been used by civilians who have asserted violation of constitutional rights by military personnel, and c) Bivens has been used against high-ranking government officials, including cabinet members. The Court rejected the defendants’ arguments that a wartime or national security environment counsel against judicial intervention. Finally, the Court emphasized the fact that plaintiffs were United States citizens and distinguished a line of cases that concluded that Bivens did not provide a damages remedy to aliens. It ultimately concluded that there were no special factors standing in the way of a Bivens remedy. With respect to the personal property claim, the Court reversed the district court. It concluded that the "military authority" exception in the Administrative Procedure Act precludes judicial review.

Judge Manion concurred in the personal property portion of the majority's opinion but dissented from the Bivens portion. Judge Manion stated that special factors counsel against applying Bivens in this context and that the majority ignored precedent to that effect and, instead, extended the principle beyond where it has ever been applied. Judge Manion was particularly sensitive to the risks posed by the judiciary getting involved in matters of national security and wartime decisions.

Tags: Opinion By Hamilton, Bivens Action, Constitutional Law, Opinion (Dissenting In Part) By Manion, Pleading Requirements, Qualified Immunity

Wisconsin's Ban On Effective Treatment For Gender Identity Disorder Is Unconstitutional

Posted on August 24, 2011 by Michael Rigney

FIELDS v. SMITH (August 5, 2011)

Andrea Fields, Matthew (a.k.a. Jessica) Davison, and Vankemah Moaton are all inmates in the Wisconsin Department of Corrections system and are all male-to-female transsexuals. They have each been diagnosed with Gender Identity Disorder, a condition in which an individual identifies with the gender that does not match his or her own physical characteristics. Prior to 2010, each had been receiving hormonal therapy. Then Wisconsin adopted the Inmate Sex Change Prevention Act, which prohibited the Department of Corrections from using any funds to provide hormonal therapy or sexual reassignment surgery. Fields and the others brought a class action challenging the Act’s constitutionality. Chief Judge Clevert (E.D. Wis.) denied class certification but conducted a trial on the individual claims. After hearing substantial expert testimony, the court concluded that the Act violated the Eighth Amendment, both as applied and on its face. Defendants appeal.

In their opinion, Seventh Circuit Judges Rovner and Wood and District Judge Gottschall affirmed. The Eight Amendment prohibits cruel and unusual punishment. Prison officials violate it when they display "deliberate indifference" to prisoners' medical needs. The Court conceded that two cases, one from 1987 and one from 1997, provide some support for defendants’ views that hormone therapy and sexual reassignment surgery are not required by the Eighth Amendment. The Court noted, however, that the support came from dicta or short comments that were based on certain assumptions pertaining to cost and the availability of alternative treatments. Now, years later, the district court heard expert testimony concerning those assumptions. The defendants concede that GID is a serious medical condition, do not contend that the Act’s prohibitions are defensible on a cost savings basis, and they presented no evidence that an alternative treatment could accomplish similar results. The trial evidence established that hormone therapy was the only effective treatment for plaintiffs' condition. Denying the only effective treatment for a serious medical condition violates the Eighth Amendment. The Court also rejected the defendants’ argument that prison security was a sufficient reason to ban the treatments. Finally, the Court concluded that the district court did not abuse its discretion in finding the Act facially unconstitutional.

Tags: Opinion By Gottschall, Constitutional Law, Cruel And Unusual Punishment, Deliberate Indifference, Eighth Amendment, Serious Health Condition

County's Elimination Of Position Did Not Violate Plaintiff's Due Process Rights

Posted on July 29, 2011 by Michael Rigney

SCHULZ v. GREEN COUNTY (July 20, 2011)

Wisconsin law requires each county in the state to provide defined juveniles services through a juvenile-intake worker. Green County is a small Wisconsin County on the Illinois border. Due to its size, it can employ its juvenile-intake worker through its court system or its Human Services Department. The Green County Circuit Court employed Sheila Schulz as the County's juvenile-intake worker from 1997 to 2008. During that time, she supervised some part-time employees. She was making $26.99 per hour in 2008. As part of a cost-cutting effort, the Green County Board of Supervisors eliminated Schulz's job and created a new job within the Human Services Department with much the same responsibilities, except it did not include supervising other employees. The County hired Schulz to fill that position at an hourly rate of $19.28. Schulz brought suit against the County, alleging that its actions deprived her of a property interest without due process in violation of § 1983. Chief Judge Conley (W.D. Wis.) granted summary judgment to the County. Schulz appeals.

In their opinion, Chief Judge Easterbrook, Circuit Judge Bauer, and District Judge Young affirmed. The Court admitted the general rule that a government employee who can be removed from her position only for cause has a property interest in that position and may not be fired from it without due process. A corollary to the general rule, however, is the reorganization rule. If a government eliminates a position, there is no longer anything in which one can have a property interest. But the Court noted that the reorganization rule might not apply if the reorganization only affects a single person. In that case, the reorganization might simply be a pretext. The record in this case does not support the notion that the County's reorganization was a pretext to fire Schulz. First, the undisputed record shows nothing but that the County reorganized to save money. Second, if the purpose of the reorganization was to get rid of Schulz, the County would not have hired her to fill the new position.

Tags: Opinion by Bauer, Constitutional Law, Due Process, Labor & Employment, Pretext, Reorganization Rule, Section 1983

Prison Ban On Pen-Pal Advertising Does Not Violate The First Amendment

Posted on July 27, 2011 by Michael Rigney

WOODS v. COMMISSIONER OF THE INDIANA DEPARTMENT OF CORRECTIONS (July 19, 2011)

In 2005, the Commissioner of the Indiana Department of Corrections suspected that inmates were using pen-pal internet sites to fraudulently obtain money. The Commissioner ordered an investigation. An investigator reviewed pen-pal websites, interviewed several pen-pals, read the online profiles of hundreds of inmates, and investigated the source of funds deposited into inmates' trust accounts. The investigation concluded that most inmates misrepresent themselves on pen-pal websites and that some pen-pals felt deceived by inmates but it was unable to substantiate any meaningful financial fraud. Nevertheless, the investigator recommended capping inmates' trust accounts, limiting the source of trust account funds to family members and other authorized individuals, and prohibiting inmates from soliciting money or advertising for pen-pals. The Department adopted the latter two recommendations. Inmates brought a class action suit against the Department, alleging that the regulations violated the First Amendment. Judge Magnus-Stinson (S.D. Ind.) granted summary judgment to the Department. The inmates appeal.

In their opinion, Judges Bauer, Posner, and Manion affirmed. The Court first noted that First Amendment rights can be curtailed more broadly in the present context than otherwise. A prison regulation need only be "reasonably related to legitimate penological interests" to be upheld. And even the plaintiffs concede that the department has a legitimate interest in preventing inmates from fraudulently soliciting money from pen-pals. The only question, therefore, is whether the limitations adopted by the Department are reasonably related to that objective. To be so, the regulation must have a valid and rational connection with the objective, the inmates must have alternative ways of exercising their rights, the impact on the rest of the prison community and staff must be considered, and there may not be a less restrictive alternative that achieves the same goal. The Court found the test met. First, the regulation is directly related to the goal of preventing fraud. Second, the inmates have alternative ways of exercising their First Amendment rights. They can still send and receive letters, they receive newspapers and magazines, and they can even develop pen-pals through groups that visit the prison. Third, it is reasonable to believe that lifting the ban would result in more inmate fraud and put a greater burden on prison staff. Finally, the Court rejected the inmates' contention that the source limitation for inmates' trust accounts was a sufficient alternative, without the additional pen-pal solicitation ban. It recognized that the source limitation could be very effective but deferred to the prison administrators' judgment that the ban was also required.

Tags: Opinion by Bauer, Constitutional Law, First Amendment, reasonably Related

Equal Protection Claim Fails Without Similarly Situated Class

Posted on July 20, 2011 by Michael Rigney

HARVEY v. TOWN OF MERRILLVILLE (July 11, 2011)

The mostly African-American residents of a Merrillville, Indiana subdivision were unhappy with their retention pond. It frequently flooded and they thought it attracted mosquitoes. When town officials considered a subdivision expansion, the residents became even more concerned. They attempted to express those concerns to town officials. They claim that the officials ignored them, subjected them to racial slurs, and were generally less responsive than they were to the white residents of a different subdivision. Several of the residents filed suit pursuant to § 1983 alleging a violation of the Fourteenth Amendment’s equal protection clause. They also brought many state law claims. They named as defendants the Town, the town engineer, and a large number of other town employees. In a December 2, 2010 order, Judge Van Bokkelen (N.D. Ind.) granted summary judgment to the defendants (but failed to mention the engineer) on the ground that plaintiffs failed to identify a similarly situated class. He also declined to exercise supplemental jurisdiction over the state law claims and "remanded" the case to state court. After the engineer sought clarification, the court issued an order the following day pursuant to Rule 60(a) granting summary judgment to the engineer. A few months later, the district court entered Rule 58 judgment as to all defendants. Plaintiffs appealed the December 2 order, but mentioned all defendants. The plaintiffs did not file a notice of appeal with respect to the December 3 order or the later judgment.

In their opinion, Judges Cudahy, Kanne, and Tinder affirmed as modified. The Court first rejected the engineer's arguments that: a) plaintiffs failed to effectively appeal summary judgment in his favor because they did not appeal from the December 3 order or the later judgment, and b) plaintiffs waived their argument as to him by not developing it adequately. With respect to the former, the Court noted that failed attempts to comply with Federal Rule of Appellate Procedure 3 are generally not fatal if the appellee is not harmed. Here, the appellant's identified the engineer by name and even included a copy of the judgment in their brief, which also named him. Their technical noncompliance does not prevent the Court from having jurisdiction. With respect to the latter, the Court acknowledged many deficiencies in the briefing but concluded that plaintiffs addressed the engineer enough to avoid waiver. On the merits, the Court agreed that plaintiffs failed to make out an equal protection claim sufficient to get past summary judgment. To do that, the plaintiffs had to present evidence that they were in a protected class, that they were similarly situated to others in an unprotected class, and that they were treated differently. They did present some evidence of similarities with the residents of another subdivision but they failed to carry the day. There was more evidence of substantial differences between the groups, including subdivision zoning differences and the fact that the other subdivision did not even have a retention pond. In addition, plaintiffs failed to present evidence, other than their pleadings, that the other residents even belonged to an unprotected class. And finally, the record seems to show that the other residents group was actually treated less favorably than the plaintiffs. The district court did err, however, in remanding the case to state court. The case did not originate in state court and cannot be remanded there. The district court should have dismissed without prejudice.

Tags: Opinion by Tinder, Civil Rights, Constitutional Law, Equal Protection, Fourteenth Amendment, Similarly Situated, Summary Judgment, Waiver

Challenge To Chicago's Firing Range Ban Likely To Succeed

Posted on July 13, 2011 by Michael Rigney

EZELL v. CITY OF CHICAGO (July 6, 2011)

A few days after the Supreme Court found Chicago's handgun ban unconstitutional in McDonald, the Chicago City Council passed the Responsible Gun Owners Ordinance. Among other things, the ordinance required one hour of range training for gun ownership but prohibited firing ranges in the city. Several Chicago residents and three interested organizations brought suit, alleging that the range ban violates the Second Amendment. They sought a temporary restraining order, a preliminary injunction, and a permanent injunction. Judge Kendall (N.D. Ill.) denied the TRO and held a hearing on the preliminary injunction. After hearing testimony, the court denied injunctive relief on the grounds that plaintiffs were not irreparably harmed and were not likely to succeed on the merits. The court also found the balance of harm to favor the City of Chicago. Plaintiffs appeal.

In their opinion, Judges Kanne, Rovner (concurring in the judgment), and Sykes reversed and remanded with instructions to enter the preliminary injunction. The Court first addressed irreparable injury and adequate remedy at law. It took issue with the district court's focus on the incidental travel burdens that the ordinance imposed. First, constitutional harm cannot be measured by considering whether the right can be exercised in another jurisdiction. Second, the challenge here is a facial challenge, where harm is not measured by reference to particular persons. Third, the Court compared Second Amendment interests to First Amendment interests, where irreparable harm is sometimes presumed. The Court turned to likelihood of success on the merits. Relying principally on Heller and McDonald, the Court described a framework for resolving Second Amendment litigation. The first question, which requires an historical inquiry, is whether the activity in question is even protected by the Second Amendment. For example, Heller pointed out that some restrictions might survive a challenge because the right at issue was not understood to be a public right at the time the Second (or Fourteenth) Amendment was ratified. The second inquiry is into the justification for the restriction -- the regulatory means and the public benefits end. The nature of the standard of review depends on how close the right is to the core of the Amendment and the severity of the burden imposed. The Court then applied the framework to Chicago's ordinance and first concluded that range training is not outside the protection of the Second Amendment. The "central component" of the Amendment -- the right to keep and bear arms -- would mean little without the right to train and practice. The court distinguished the eighteenth and nineteenth century statutes and regulations cited by Chicago as being merely regulatory or time, place, and manner restrictions. The Court proceeded to the second inquiry and used First Amendment jurisprudence to decide which form of heightened scrutiny was appropriate. It stated that a severe burden on a core right requires strong public interest justification and a close fit between means and the end. More modest burdens on less court rights need less justification. Here, the ordinance is a total ban on a right close to the core of the Second Amendment. The City must satisfy something more rigorous than intermediate scrutiny. The Court found that Chicago had failed to come close. All of its evidence with speculative or conclusory or could be countered with much less burdensome regulatory efforts. The Court concluded that the plaintiffs had a strong likelihood of success on the merits. For much the same reason, the Court concluded that the balance of harms favored the plaintiffs. It ordered that an appropriate injunction be entered on remand.

Judge Rovner wrote separately, concurring in the judgment. She pointed out that the right at issue was not all firearms training but was limited to live training at a firing range. Other types of training, including simulated training, are not at issue and may be enough to make the core right meaningful. She therefore did not agree that the right was as close to the core as the rest of the panel and that, as result, required more than intermediate scrutiny. She also found support in the eighteenth and nineteenth century regulations distinguished by the majority.

Tags: Opinion by Sykes, Constitutional Law, First Amendment, Inadequate Remedy At Law, Injunctive Relief, Intermediate Scrutiny, Irreparable Harm, Opinion (Concurring In The Judgment) By Rovner, Probability Of Success On The Merits, Second Amendment, Strict Scrutiny, preliminary injunction

Probable Cause Defeats Malicious Prosecution Claim

Posted on June 29, 2011 by Michael Rigney

HOLLAND v. CITY OF CHICAGO (June 23, 2011)

In 1997, Dana Holland was convicted of sexually assaulting Dionne Stanley. At Holland's trial, Stanley positively identified Holland. She also described how she met him at a bar the night before and the particulars of the assault. Five years later, a DNA test established Holland’s innocence. His conviction was vacated. He brought suit against the City of Chicago and two police officers for Brady violations and state law malicious prosecution. At her deposition, Stanley testified that she committed perjury in her trial testimony. She testified that she told the police officers on the scene three times that Holland was not her assaulter. She stated that she identified him at the scene only after the police pointed out all the evidence against him and told her she could go home if she identified him. She also testified that she told the Assistant State's Attorney shortly before trial that Holland did not do it. Judge Zagel (N.D. Ill.) granted summary judgment to the defendants.

In their opinion, Judges Flaum, Manion, and Evans affirmed. The Court first addressed the malicious prosecution claim. Among other things, a plaintiff must prove the absence of probable cause and the presence of malice in order to prevail on a malicious prosecution claim. In testing for probable cause, one must look at the time when the charges were filed, not the time of arrest. The Court recited the "ample" evidence of probable cause; including the facts that he was found with clothing matching that of the assailant, that his wallet was in the clothing, and that he had no alibi. The Court noted that probable cause existed even without Stanley’s identification. Although the presence of probable clause itself defeats Holland's case, the Court also noted that he had no proof of malice. The Court turned to the Brady argument. A police officer can be liable under Brady if he withholds exculpatory evidence and the evidence is material. The materiality test is that there must be a reasonable probability that the proceeding would have turned out differently had the evidence been disclosed. The evidence Holland takes issue with is the police officer's failure to disclose the "pressure" they put on Stanley to identify him. They Court identified several reasons to reject the Brady claim. First, Holland's attorney had the opportunity to cross-examine Stanley at trial. Second, the Court thought it unlikely, given Stanley's explanation that she did not identify him because she was afraid and the significant physical evidence, that the outcome would have been different. Third, Stanley was a particularly strong eyewitness at trial because of her lengthy, and initially friendly, encounter with Holland.

Tags: Opinion by Evans, Brady Violation, Civil Rights, Constitutional Law, Malicious Prosecution, Seventh Circuit Court Of Appeals, Tort

Seventh Circuit Certifies Questions To Illinois Supreme Court Regarding Rights Of Tenured Teachers

Posted on June 23, 2011 by Michael Rigney

CHICAGO TEACHERS UNION v. BOARD OF EDUCATION (June 13, 2011)

The Chicago Board of Education laid off almost 1300 teachers in the summer of 2010. The Board recalled many of them before the end of that summer, having received additional federal funds. Vacancies continued to open through attrition. The Chicago Teachers Union brought suit against the Board seeking special hiring consideration for the tenured teachers who were laid off and not recalled. Judge Coar (N.D. Ill.) granted an injunction. A divided panel of the Seventh Circuit affirmed (opinion and intheiropionion). The Board petitioned for rehearing.

In their opinion, Circuit Judges Manion and Williams and District Judge Clevert granted the petition, vacated the earlier opinion, and certified three questions to the Illinois Supreme Court. In its earlier opinion, the majority interpreted Illinois law to give tenured teachers a protected a right to continued employment and, thus, an opportunity to be considered for vacancies as they arise. But no Illinois court has addressed the question of whether tenured teachers have any right to be recalled after a good faith economic layoff. On reconsideration, the panel decided to let the Illinois Supreme Court provide guidance on Illinois law. It certified three questions regarding the rights of tenured teachers after a good faith economic layoff.

Tags: Opinion per curiam, Certified Questions, Constitutional Law, Due Process

Protected Speech Does Not Support A First Amendment Retaliation Claim Without Proof Of Defendants' Awareness

Posted on June 22, 2011 by Michael Rigney

WACKETT v. CITY OF BEAVER DAM (June 13, 2011)

Daniel Wackett worked for the Department of Public Works in Beaver Dam, Wisconsin from 1972 until his retirement in 2009. In 2003, he was responsible for evaluating three bids for a front-end loader needed by the City. At a Board of Public Works meeting, he and his supervisor, the Director of Public Works, both recommended the John Deere front-end loader. The Board voted to recommend to the City Council the more expensive Caterpillar front-end loader. Wackett spoke out against the decision. He even claimed that the Board was improperly influenced. He persuaded a local businessman to write a letter criticizing the recommendation. The local newspaper printed the letter. After numerous citizen complaints, the Board changed its recommendation and the City purchased the John Deere front-end loader. After that incident, the Board refused to promote Wackett. Twice, they appointed someone else Director. From 2004 to 2009, Smith actually served as Acting Director but the Board refused to appoint him to the position. Wackett brought suit pursuant to § 1983. He alleged that the City and Board retaliated against him on account of his speech. Judge Griesbach (E.D. Wis.) granted summary judgment to the defendants. Wackett appeals

In their opinion, Chief Judge Easterbrook and Judges Manion and Williams affirmed. There are three prongs to a First Amendment retaliation claim: a) constitutionally protected speech, b) but-for causation, and c) a deprivation. With respect to the first prong, the Supreme Court in Garcetti held that a public employee's statements in his official capacity are not protected speech. Here, most of Wackett's speech was made in his official capacity and is not protected. To the extent he engaged in protected speech in conversations with the businessman and other citizens, he presented no evidence that the defendants were aware of that speech. With respect to that speech, therefore, he cannot establish causation.

Tags: Opinion by Manion, Garcetti, Causation, Constitutional Law, First Amendment, Seventh Circuit Court Of Appeals

Girl Scouts' Elimination Of Local Council Violates Wisconsin Fair Dealership Law

Posted on June 13, 2011 by Michael Rigney

GIRL SCOUTS OF MANITOU COUNCIL v. GIRL SCOUTS OF THE UNITED STATES OF AMERICA (May 31, 2011)

The Girl Scouts of the United States of America is the national Girl Scouts organization. It charters local councils, authorizing them to use the "Girl Scout" mark and sell Girl Scout cookies. One of those councils is the Manitou Counsel in eastern Wisconsin. Several years ago, the national organization decided to reduce the number of local councils. Manitou was one of the councils that would disappear under the reorganization. Manitou brought suit under the Wisconsin Fair Dealership Law. It obtained a preliminary injunction stopping the restructuring. However, on the merits, Judge Stadtmueller (E.D. Wis.) granted summary judgment to the national organization, concluding that applying the Wisconsin law to the national organization would violate their First Amendment freedom of expression rights. Manitou appeals.

In their opinion, Judges Posner, Kanne, and Tinder affirmed in part, reversed in part, and remanded. The Court rejected the First Amendment argument. Although the national organization's activities do include protected expression, that does not mean they are exempt from state laws that have a remote, at worst, impact on that expression. The national organization claims that its First of Amendment protection comes from its attempts to reorganize its structure to become more racially and ethnically diverse. The Court noted that there was actually no evidence in the record connecting diversity with the reorganization. Without that connection, the argument fails. The Court turned to the alternative argument, rejected by the district court, that the national organization's activities do not violate the Wisconsin Fair Dealership Law. The Court first refused to recognize a statutory exemption for non-profits. Next, the Court concluded that the statute required "good cause" to eliminate the council entirely, even though the national organization had the right to alter territory boundaries. They Court wrestled with a definition of "good cause" but ultimately found no need to resolve it. It concluded that: a) the national organization abandoned its argument that business reasons provided the good cause, and b) it found its argument that its expressive activity provided good cause unsupported by the record. The Court also affirmed the dismissal of the common law claims and ordered the reinstatement of the injunction.

Tags: Opinion by Posner, Constitutional Law, Contract/Commercial Law, First Amendment, Freedom Of Expression, Good Cause, Wisconsin Fair Dealership Law

Seventh Circuit Dismisses Appeal Where Relief Sought Is No Longer Available

Posted on May 19, 2011 by Michael Rigney

STONE v. BOARD OF ELECTION COMMISSIONERS FOR THE CITY OF CHICAGO (May 4, 2011)

The City of Chicago requires that mayoral candidates collect 12,500 registered voter signatures over a 90 day period in order to be listed on the ballot. A number of individuals brought suit in federal court, alleging constitutional violations. In late 2010, the plaintiffs moved for a preliminary injunction. They sought to prohibit enforcement of the signature requirement for the February 2011 election. Judge Dow (N.D. Ill.) denied their request for an injunction. Plaintiffs appeal.

In their opinion, Judges Kanne, Rovner, and Sykes dismissed. The Court noted that the February 2011 election had taken place two months before the appeal was even argued. The only relief plaintiffs sought in their motion for a preliminary injunction related to that election. The relief they seek is no longer available. The Court noted that it lacks the power to decide questions that cannot affect litigants’ rights. The Court noted the familiar "capable of repetition, yet evading review" mootness exception. But that exception does not apply here. The plaintiffs' claims will not evade review. Their underlying suit challenging the constitutionality of Chicago's signature requirement remains pending.

Tags: Opinion by Kanne, Constitutional Law, Election Law, Elections, Injunctive Relief, Mootness, Seventh Circuit Court Of Appeals

Legislative Immunity Depends On The Nature Of The Act, Not The Actor's Intent

Posted on May 13, 2011 by Michael Rigney

BAGLEY v. BLAGOJEVICH (May 2, 2011)

In 2003, the Illinois Department of Corrections’ chain of command at its high-security facilities comprised 12 layers, including captain. Although the captains were not represented, other IDOC employees were. The American Federation of State, County and Municipal Employees represented sergeants and other employees in its RC-6 bargaining unit and represented lieutenants in its CU-500 bargaining unit. Another union, the Illinois State Employees Association attempted to organize the captains in 2002. At the same time, Illinois faced a huge budget deficit. Newly-elected Governor Blagojevich had promised to reduce spending and eliminate government management layers. So he proposed eliminating the captain position. After the Legislature passed a budget that included the captain position, Blagojevich vetoed it. Illinois' plan was to place the captains in other agencies, denote them to lieutenants, or lay them off. The AFSCME opposed the plan to place former captains into open lieutenant positions because it wanted its own members placed in those positions. Illinois also created a new position of "shift commander." Some captains became lieutenants and joined the CU-500 bargaining unit. IDOC calculated their seniority pursuant to the CBA as their demotion date. Some captains became officers and joined the RC-6 bargaining unit. IDOC gave additional seniority to these employees based on its interpretation of that CBA. The union objected and filed a grievance. IDOC and the union ultimately agreed to calculate seniority based only on the employee's continuous service after his return to the unit. A number of former captains sued Governor Blagojevich and other officials pursuant to § 1983, alleging that the elimination of the captain position and seniority treatment were in retaliation for their attempts to unionize. The plaintiffs sought to depose Blagojevich. Between February 2007 and October 2008, the parties fought over the deposition. The district court ultimately granted Blagojevich’s request for a protective order on legislative immunity grounds. Several months later, Judge Mills (C.D. Ill.) granted summary judgment to the governor, also on legislative immunity grounds. The other defendants then moved for summary judgment. The plaintiffs conceded, given the law of the case, that the other defendants were entitled to immunity on the job elimination claim. They did oppose summary judgment on the seniority retaliation count. Judge Mills granted summary judgment to the other defendants. He did not agree that the law of the case settled the immunity question and concluded that plaintiffs waived it by not contesting it. On the seniority retaliation claim, he concluded that there was no causal link between the union officials and the administration. Plaintiffs appeal.

In their opinion, Judges Kanne, Tinder, and Hamilton affirmed. The Court first addressed legislative immunity. Bogan tells us that the question of whether an action is legislative and therefore entitled to absolute immunity depends on the nature of the act rather than the actor's intent. There, the Supreme Court looked both to the form and substance of the action. Although the Court noted that Bogen does not require that two-part test, it nevertheless applied it. With respect to form, the Court had little difficulty in concluding that a governor's veto is legislative. In fact, the plaintiffs forfeited the point. With respect to substance, the Court distinguished an individual firing with the elimination of a position (and noted that other circuits applied the same distinction). The termination of one employee's job is not legislative in substance -- but the elimination of an entire position is. Having concluded that Blagojevich's acts were legislative, the Court stated that he was thus entitled to immunity both from the suit and from defending himself in the suit. The district court did not abuse its discretion in blocking the deposition. With respect to the seniority retaliation count, the Court agreed with the district court that the evidence presented on the record was insufficient to create a genuine dispute of fact on causation.

Tags: Opinion by Tinder, Causal Connection, Constitutional Law, Legislative Immunity, Section 1983, Seventh Circuit Court Of Appeals

Admitted Policy Violation Constitutes A Legitimate, Non-Discriminatory Reason For Termination

Posted on May 11, 2011 by Michael Rigney

ZELLNER v. HERRICK (April 29, 2011)

Robert Zellner was a biology teacher at Cedarburg High School in Cedarburg, Wisconsin between 1995 and 2006. He was active in Cedarburg Education Association (the teacher's union) throughout his employment and was its president between 2003 and 2005. The relationship between the District and the Union during this time was quite strained. During his presidency, Zellner was very publicly critical of the District, in particular Superintendent Daryl Herrick. After his presidency ended in August of 2005, Zellner remained active in the Union but no longer spoke out publicly. Also in August 2005, Zellner signed his consent to a new District computer usage policy. The policy notified District employees that their computer usage was not private and could be monitored, expressly prohibited access to offensive pictures, and warned that any violation could result in disciplinary action. Soon thereafter, the District’s IT Department had to clean up Zellner's computer for a second time. The IT technician reported to her supervisor her opinion that Zellner's computer problems were caused by visiting “questionable” Internet sites. The Director of Technology reported these suspicions to Superintendent Herrick, who ordered monitoring software be placed on the computer. The Director of Technology checked the usage logs from time to time. In December, the log indicated that Zellner had visited a number of pornographic websites. Herrick confronted Zellner, who admitted accessing pornography on the District computer several times and conceded that his actions violated school policy. Zellner refused to resign. The School Board held a disciplinary hearing in January. The Board gave Zellner an opportunity to testify and present evidence. He declined to testify but instead read a statement apologizing for his conduct and admitting using poor judgment. The School Board considered a range of discipline but ultimately chose to fire Zellner. A state trial court and appellate court upheld the termination. Zellner filed suit in federal court, alleging a violation of his due process rights and his First Amendment rights. Judge Randa (E.D. Wis.) dismissed the due process claim and granted summary judgment to the defendants on the First Amendment claim. Zellner appeals.

In their opinion, Judges Manion, Evans, and Hamilton affirmed. Although the Court was somewhat critical of the district court's dismissal of the due process claim sua sponte, it nevertheless upheld the dismissal. Even if the Zellner were able to make out a due process claim, the only relief to which he would be entitled was a opportunity to be heard. He was given a hearing and he was given an opportunity to testify. Instead, he read a statement which did not even dispute the charges. He is entitled to no more process. The Court also agreed with the district court's ruling on the First Amendment claim, finding an absence of proof of but-for causation. Notwithstanding the years of animosity between Zellner and the School District, the Court concluded that no jury could find that Zellner's union activities amounted to but-for causation. Zellner admits that he accessed pornography on the District computer and that his conduct violated the District’s policy. Therefore, the School District had a legitimate, nondiscriminatory reason to fire him.

Tags: Opinion by Evans, But-For Causation, Constitutional Law, Due Process, First Amendment, Labor & Employment, Seventh Circuit Court Of Appeals

Forum State Website Access Is Not Enough For Personal Jurisdiction

Posted on May 10, 2011 by Michael Rigney

be2 LLC v. IVANOV (April 27, 2011)

be2 Holding is a German company that operates an Internet dating site at be2.com. The site has 14 million users in 36 countries. Its U.S. subsidiary, be2 LLC, is a Delaware company. The companies filed suit against Nikolay Ivanov, alleging, among other things, that Ivanov violated the Lanham Act by offering an Internet dating site at be2.net. Ivanov, a resident of New Jersey, did not appear or answer the complaint. Judge Shadur (N.D. Ill.) entered a default judgment. The plaintiff companies submitted several documents to support their damage claim. One document showed that be2.net had 20 registered users with Chicago addresses. Another described Ivanov as the CEO and co-founder of be2.net. A third document was Ivanov's LinkedIn profile, which also described him as the co-founder and CEO of be2.net. Ivanov moved to vacate the judgment for lack of personal jurisdiction. He submitted an affidavit asserting that: a) he was not the co-founder or CEO of be2.net, b) he was not compensated for any work he did for be2.net, c) most of his work consisted of translating web content, d) the CEO title stood for "Centralized Expert Operator," and e) he had never been to Illinois. The court found his affidavit not credible and denied the motion.

In their opinion, Judges Flaum, Wood, and Hamilton reversed and remanded. Personal jurisdiction over Ivanov depends on whether he has the minimum contacts with Illinois to satisfy Due Process. In the Internet arena, due process requires more than simply operating a website accessible in the forum state. The defendant must, in some fashion, target an audience in the forum state. Here, the record does not support that conclusion. The only evidence of the site’s contacts with Illinois is the document showing 20 Illinois users. Without some evidence that Ivanov targeted an Illinois market, personal jurisdiction was improper and the default judgment must be vacated and the complaint dismissed.

Tags: Opinion By Hamilton, Constitutional Law, Due Process, Jurisdiction, Minimum Contacts, Personal Jurisdiction, Seventh Circuit Court Of Appeals

Plaintiffs' Offense At Government Behavior Does Not Establish Standing

Posted on May 5, 2011 by Michael Rigney

FREEDOM FROM RELIGION FOUNDATION v. OBAMA (April 14, 2011)

Presidential proclamations inviting citizens to pray are as old as the country itself, dating back to George Washington. Congress enacted a statute in 1988 that calls on the President to issue an annual proclamation setting aside the first Thursday in May as a National Day of Prayer. President Barack Obama issued such a proclamation on April 30, 2010. Freedom From Religion Foundation filed suit against President Obama and his Press Secretary, alleging that the statute and the proclamations contravene the First Amendment. Judge Crabb (W.D. Wis.) agreed, concluding that the statute and the proclamation violated the First Amendment. She issued an injunction forbidding any further such proclamations. The President and his Press Secretary appeal.

In their opinion, Chief Judge Easterbrook and Circuit Judges Manion and Williams (concurring) vacated and remanded with instructions to dismiss. The Court first addressed plaintiffs’ standing and found it lacking. In order to establish standing, one must show injury, causation, and redressability. The statute itself imposes a duty only on the President. The plaintiffs do not have standing to object to a statute that imposes duties only on others. But the proclamation is addressed to all citizens, including the plaintiffs. The proclamation, however, imposes no duty -- it simply makes a request. Plaintiffs cannot show any injury caused by such a request. The Court cited the Supreme Court's decisions in Newdow and Valley Forge Christian College as controlling precedent.

Judge Williams concurred in a separate opinion. She distinguished Newdow, disagreed with what she thought was the majority's conclusion that a change in behavior is required for standing, noted a number of Supreme Court decisions on the merits where the standing injury is hard to distinguish from that of the Foundation, but ultimately concluded that Valley Forge precludes standing.

Tags: Opinion by Easterbrook, Constitutional Law, First Amendment, Injury, Opinion (Concurring) By Williams, Seventh Circuit Court Of Appeals, Standing

Laid Off Tenured Teachers Are Entitled To Recall Procedures

Posted on April 27, 2011 by Michael Rigney

On June 13, 2011, the Court granted the Board's Petition for Rehearing, vacated this opinion, and certified three questions to the Illinois Supreme Court.

CHICAGO TEACHERS UNION v. BOARD OF EDUCATION (March 29, 2011)

Chicago's Board of Education operates the city's public school system and employs more than 20,000 teachers. In the summer of 2010, the Board laid off almost 1300 of them. The Board received an increase in federal funding toward the end of that summer and was able to recall over 700 teachers who had been given the layoff notices. The Board used no particular procedure or policy in the recall. The Board has also continued to fill vacancies as they open up in the system naturally, again without any particular policy with respect to laid off teachers. The Chicago Teachers Union filed suit complaining that the Board was filling many of those vacancies with new hires instead of recalls. They sought injunctive relief. Judge Coar (N.D. Ill.) concluded that the laid-off teachers had a property interest emanating from state law that entitled them to some retention procedures. The court also found that the Union met the other elements of injunctive relief and therefore entered an injunction ordering the Board to rescind the discharges of (although not reinstate) tenured teachers and to promulgate a set of recall rules in conjunction with the Union. The court enjoined further layoffs until such rules had been promulgated. The Board appeals.

In their opinion, Circuit Judges Manion (concurring in part and dissenting in part) and Williams and District Judge Clevert affirmed, with modifications to the injunction. In order to be entitled to Fourteenth Amendment due process protection, one must first establish the existence of a protected property (or liberty) interest. Property interest themselves are not created by the Constitution but come from independent sources, frequently state law. In the employment context, a property interest only arises when an employer's discretion to deny employment is limited. Under Illinois law, tenured teachers enjoy permanent employment, subject only to removal for clause. The Court concluded, therefore, that an Illinois tenured teacher has a property interest in continued employment. But establishing the property interest only takes us to the next question -- what process is due. Hearings are generally not necessary when the deprivation of the property interest is caused by a good faith economic layoff. Here, the Union does not challenge the good faith of the layoffs nor does it ask for hearings. Instead, it seeks opportunities for its members to compete for vacancies as they arise. The Court looked to state law prior to 1995, when Illinois had "reserve teachers." Basically, reserve teachers were competent teachers who were laid off but who had significant opportunities with respect to vacant positions. When the Legislature eliminated reserve teachers in 1995, it authorized the Board to establish procedures for layoffs and recall rights. Relying in large part on Illinois law interpreting the new provision, the Court concluded that the Board must use the "authority" given it by the Legislature to formulate layoff and recall procedures. Applying the Mathews weighing analysis, the Court noted an employee has a substantial interest in retaining her job and a significant risk of deprivation without any procedures at all. It concluded that the teachers were entitled to a recall procedure that would allow them a meaningful opportunity to demonstrate their qualifications for open positions for a reasonable period of time. With respect to the content of the injunction, however, the Court had two comments. First, it removed the requirement that the Board promulgate rules in conjunction with the Union. Nothing in the statute requires consultation with the Union -- although nothing prohibits it, either. Second, the Court emphasized that the district court's order requiring that the discharges be rescinded did not result in the recall of any teachers. The teachers are still laid-off.

Judge Manion dissented in part and concurred in part, although his concurrence was limited to the majority’s modification of the injunction. First, Judge Manion disagreed with the conclusion that the Illinois statute required the Board to enact recall procedures in the event of the layoff. He pointed out that the Board has established recall procedures in other circumstances, such as a school closing. Second, although teachers have a property interest in their employment, he noted that the Board terminated their employment and honored all process to which they were entitled. No case holds that an employee in that situation has some residual property rights. Third, Judge Manion disagreed with the majority's identification of recall rights as property rights. He pointed out the circularity of the logic. The majority concluded that the recall procedures were the property rights. In order to protect those rights, the Court ordered the Board to develop the procedures. Simply put, even if the statute and other circumstances created a property interest, the property interest cannot be the procedures themselves.

Tags: Opinion by Williams, Constitutional Law, Due Process, Fourteenth Amendment, Labor & Employment, Opinion (Concurring In Part, Dissenting In Part) By Manion, Property Interest

Allegation In A Verified Pleading Is The Equivalent Of An Affidavit

Posted on April 8, 2011 by Michael Rigney

OWENS v. HINSLEY (March 18, 2011)

While imprisoned in the Menard Correctional Center, James Owens became unhappy with prison conditions and with the prison's response to his complaints. So he started a hunger strike. He spent 21 days in his cell and four in the infirmary before he ate again. He lost 20 pounds but suffered no medical complications. Within weeks, he began a second hunger strike. This time, he spent 25 days in his cell and almost 3 weeks in the infirmary. He ate again only after the prison began force-feeding him. He lost 30 pounds on his second hunger strike but again suffered no medical complications. He submitted an informal grievance complaining that he should have been moved to the infirmary sooner. His counselor ignored the grievance. The following year, on two separate occasions, Owens was assaulted by cellmates, complained to guards, and was assaulted again before the guards did anything. Owens brought suit pursuant to § 1983. The complaint contained seven separate claims against 15 different defendants. Chief Judge Herndon (S.D. Ill.) dismissed five of the seven claims at screening and granted summary judgment to the defendants on the other two. Owens appeals.

In their opinion, Chief Judge Easterbrook and Judges Posner and Wood affirmed. The Court first noted that the complaint violated the rules of civil procedure regarding joinder and should either have been severed into two separate actions or dismissed for improper joinder. However, since improper joinder is not jurisdictional, the Court addressed each claim's merits in turn. His claim that prison officials violated the Constitution when they ignored his grievances is frivolous -- prison grievance procedures are not required by the Constitution. His claim that his First Amendment right to demonstrate was violated when the prison force-fed him is frivolous -- there is no constitutional right to refuse life-saving medical treatment. His claim that the guards failed to protect him from cellmate assaults fails -- no reasonable juror could find that the guards deliberately ignored a substantial risk of serious harm. His claim that the prison was deliberately indifferent when it did not move him from his cell to the infirmary during his hunger strikes fails, although not for the reason relied upon by the district court. His allegation, in his verified response to summary judgment, that he submitted an informal grievance is the equivalent of an affidavit. The court should have considered it. The claim still fails because he failed to exhaust administrative remedies when he did not follow up his informal grievance with a written grievance to a designated prison official. The district court dismissed the other three claims without prejudice because the allegations of misconduct were not linked to a particular defendant. Although an amended complaint may have corrected some of that problem, the Court concluded that the district court did not abuse its discretion in denying leave to amend when Owens failed to comply with local procedure, failed to follow the court's instructions for refiling, and filed claims that had already been dismissed at screening.

Tags: Opinion by Wood, Civil Procedure, Civil Rights, Constitutional Law, Deliberate Indifference, Joinder, Summary Judgment, Verified Allegation

Police Cannot Arrest Demonstrators Without A Reasonable Belief That They Know They Are Viiolating A Police Order

Posted on April 6, 2011 by Michael Rigney

VODAK v. CHICAGO (March 17, 2011)

In early 2003, a group of people in Chicago opposed to the United States' anticipated invasion of Iraq wanted to express their opposition. They wanted to hold a march at the same time as the invasion, but they did not know when that would happen. A Chicago ordinance requires a permit for a demonstration and typically requires five days notice of the march's date and route. For "good compelling cause," the City will act within two days. When, as here, the two-day requirement cannot be met, the City has an informal practice of waiving the permit requirement. Although non-permitted demonstrations typically use the same standard route, the police and demonstrators never agreed on a route. The invasion took place on March 19. The protesters gathered on March 20. Part of the way along their announced route, thousands of the protesters detoured. They marched toward Michigan Avenue, a major commercial thoroughfare in Chicago. The police blocked access to the street and told the march organizers to return to their starting point or disperse. They threatened to arrest anyone entering Michigan Avenue. The police claim they also shouted these warnings through bullhorns. Most of the marchers either dispersed or began to return to their starting point. Along the way, hundreds of marchers started approaching Michigan Avenue again on a different cross street. There is a dispute in the record regarding the marchers' presence on that street -- there is some evidence that at least some of the marchers thought they were directed there by the police. The police again blocked Michigan Avenue. This time, however, they also sealed off the marchers in the other direction. They started arresting the marchers and any other person who happened to be on that one block stretch of Chicago Avenue. Most of those arrested were released without being charged -- others had their charges dismissed. Two lawsuits were filed against the City and several police officers pursuant to § 1983, alleging violations of the First and Fourth amendments, as well as state law. Judge Kendall (N.D. Ill.) dismissed both suits against the officers on qualified immunity grounds and against the City because no policymaker had been responsible for the officers' conduct. Plaintiffs appeal.

In their opinion, Circuit Judges Posner and Wood and District Judge Adelman reversed and remanded. The Court first noted that the police were well within their rights in blocking Michigan Avenue. A large protest march was getting out of control. They could, and did, order the crowd to disperse or return to their starting point. But, on the undisputed record, they only communicated their orders to the organizers. According to hundreds of affidavit filed in the record, many of the marchers were unaware of any order to disperse or return. The Court emphasized this point because the only reason the police gave for the arrests several blocks away from where they gave the orders is the marchers' defiance of these orders. At the time of the arrest, the police had no good reason to believe that the people they were arresting knew they were violating a valid police order. Of course, the police only needed probable cause to make the arrests. But because there was no permit, no agreed-upon route, and no effective means of communicating an order to the thousands of marchers, a police officer on Chicago Avenue could not have a reasonable belief that the hundreds of marchers there knew of the orders. The Court rejected the District Court's conclusion that the right allegedly violated was not "clearly established" at the time. Decades before the march, the Supreme Court held that, if police revoke permission to march, they must give notice of the revocation before arresting alleged violators. In fact, the Court even stated that this is one situation that is so obvious that precedent is not required. The police cannot give permission to march, then withdraw the permission without telling anyone, and arrest the marchers. With respect to the dismissal of the City, the Court also disagreed with the district court. In order to hold the city liable, plaintiffs must show that the conduct was authorized or directed by a policymaker. But that does not mean only the City Council. Here the City Council defers to the Superintendent of Police as the sole policymaker with respect to demonstrations. In addition to his sole policymaking role, the Superintendent monitored and approved the very police conduct at issue. That satisfies Monell.

Tags: Opinion by Posner, Civil Rights, Constitutional Law, Fourth Amendment, Municipal Liability, Probable Cause, Seventh Circuit Court Of Appeals, Unlawful Arrest

Caseworker's Objectively Reasonable Conduct In Seizing Child Did Not Violate Fourth Amendment

Posted on April 5, 2011 by Michael Rigney

SILIVEN v. INDIANA DEPARTMENT OF CHILD SERVICES (March 16, 2011)

Teresa and Mark Siliven’s two-year-old son had been in daycare with Ashley Woods for almost a year. When Teresa picked him up one day in January 2008, Woods told her that the boy had been acting up. Later that evening, Teresa noticed bruises on her son's arm. Mark said he knew nothing about them, so they filed a child-abuse report with the Richmond, Indiana Police Department. The report was forwarded to the Indiana Department of Child Services(DCS). DCS caseworker Amber Luedike investigated. She interviewed Mark and Teresa, as well as Woods. Luedike also asked the Siliven’s to take their son to the emergency room for an examination. Although the emergency room report reached no conclusion as to the cause of the bruises, another doctor to whom Luedike showed the bruises opined that they were consistent with an adult grabbing the boy's arm. Six days into her investigation, Luedike learned that the DCS had substantiated an incident of child abuse involving Mark and his 15-year-old stepdaughter five years earlier. Luedike met with her supervisor, a staff attorney, and a DCS director. She recommended that DCS remove the boy from his home. She based her recommendation on the likelihood that he had been injured by an adult, the fact that the parents had not been eliminated as the cause, and Mark’s earlier incident. The others agreed, and also agreed that they should remove him on an emergency basis because they would be unable to obtain a court order before the upcoming weekend. Luedike and several sheriff’s deputies went to the Siliven's home, intending to take the boy into protective custody. The DCS director eventually agreed, however, to allow Teresa to take the boy to his grandmother's home in Ohio. The following Monday, a judge concluded that probable cause to believe that the boy’s physical health was seriously endangered did not exist. DCS closed its investigation. The Silivens filed suit against Luedike and the DCS director, alleging federal Constitutional and state law violations. Judge Lawrence (S.D. Ind.) granted summary judgment to the defendants based on qualified immunity. He did not address whether there was a constitutional violation but, under the second prong of the qualified immunity test, held that the constitutional rights allegedly violated were not clearly established at the time of the conduct. The Silivens appeal.

In their opinion, Judges Flaum, Manion, and Evans affirmed. The Court’s two-part test is familiar: whether the complaint alleges a constitutional violation and whether the rights allegedly violated were clearly established at the time of the conduct. Unlike the district court, which ignored the first prong and found the second prong dispositive, the Court started with the first prong and found it dispositive. With respect to the Fourth Amendment unreasonable seizure claim, the Court assumed without deciding that there was a seizure (remember that the boy never left his mother's side) but concluded that the defendants' acts were reasonable under an objective test. There was physical evidence of abuse, Mark had access to the boy, and the DCS had substantiated an earlier abuse claim against Mark. Those facts, particularly combined with the fact that the boy remained with his mother at all times, were enough for the Court to find reasonableness. With respect to the substantive due process claim, the Court noted that the constitutional right to familial integrity has to be balanced against the public interest in child safety. A caseworker need only have reasonable suspicion of past or threatened abuse to take a child into custody. Since that threshold is less demanding than the Fourth Amendment threshold the Court already discussed, the Court had no difficulty in concluding that there was no substantive due process violation. Finally, the Siliven's also alleged a procedural due process violation. Due process does require a pre-deprivation hearing before a child is removed from his home, unless there are exigent circumstances. This also requires an objective test, whether a reasonable caseworker would have believed the child was in immediate danger. Again, that test is less stringent than the Fourth Amendment test. The Court concluded that the defendants met the test.

Tags: Opinion by Flaum, Civil Rights, Constitutional Law, Fourth Amendment, Procedural Due Process, Qualified Immunity, Reasonable Suspicion, Reasonableness, Seventh Circuit Court Of Appeals, Substantive Due Process

Fourth Amendment Does Not Require Least Invasive Execution Of Search Warrant

Posted on March 30, 2011 by Michael Rigney

JOHNSON v. MANITOWOC COUNTY (March 10, 2011)

Steven Avery was convicted of rape in Wisconsin state court in 1986. After serving 18 years in jail, he was released in 2003 after DNA evidence suggested that he did not commit the crime. He filed a multi-million dollar lawsuit against Manitowoc County authorities. Avery lived in a trailer and garage rented from Roland Johnson. A few years after his release, a magazine photographer disappeared after meeting with Avery on Johnson's property. An investigation ensued, with Avery a prime suspect. Several search warrants were executed at the trailer and garage. During the searches, the investigators broke up a portion of the concrete garage floor with a jackhammer, damaged the garage door, and damaged the trailer. They also seized a number of personal items. Johnson brought suit against County officials under § 1983, alleging violations of the Fourth, Fifth, and Fourteenth amendments. Judge Randa (E.D. Wis.) granted summary judgment to the defendants. Johnson appeals.

In their opinion, Judges Flaum, Rovner, and Evans affirmed. The Court first considered Johnson's argument that the use of the jackhammers violated the Fourth Amendment. The Fourth Amendment requires reasonableness, and measures it under the totality of the circumstances. The Court rejected Johnson' argument that the availability of a less invasive tool made the use of the jackhammers unreasonable. The Fourth Amendment does not require the least destructive approach to the execution of a search warrant. The Court concluded that the use of the jackhammers was reasonable under the circumstances. The Court turned to Johnson's claim that the Fifth Amendment Takings Clause entitles him to compensation. But the Takings Clause does not apply when the "taking" results from a government power other than the power of eminent domain. Here, any property seized or destroyed by government authorities was done so under its police power. The Court did note that Johnson may have some state remedies, both for compensation for damages and the return of his property – but he does not have a federal constitutional claim.

Tags: Opinion by Evans, Civil Rights, Constitutional Law, Fifth Amendment, Fourteenth Amendment, Fourth Amendment, Reasonableness, Seventh Circuit Court Of Appeals, Takings Clause

DCFS Caseworker Has Qualified Immunity

Posted on March 25, 2011 by Michael Rigney

AULT v. SPEICHER (March 3, 2011)

In late 2004, the Illinois Department of Children and Family Services received a tip that Dana Ault's boyfriend had physically abused one of her four children. Ault sent her children to live with her mother to prevent them from being placed in foster care. The Department assigned Leslie Speicher as Ault’s caseworker. Speicher developed a plan to which Ault agreed. Under the plan, the children would continue to reside with Ault's mother. In mid-2005, Speicher suggested to Ault's mother that she should attempt to gain legal custody of the children. In fact, Speicher told Ault that she would file for custody in court if Ault did not agree to transfer custody to her mother. Both Ault and her mother believed that Ault could retain custody only as long as they agreed to leave the children with the mother. When Ault refused to sign a subsequent plan, the Department sought an adjudication of wardship. The court denied the petition and Ault's children were allowed to return to her care. Ault filed suit against Speicher pursuant to § 1983, alleging violations of the First, Ninth, and Fourteenth Amendments. Judge Herndon (S.D. Ill.) granted summary judgment to Speicher, concluding that there was no constitutional violation and, alternatively, that Speicher was entitled to qualified immunity. Ault appeals.

In their opinion, Circuit Judges Bauer and Williams and District Judge McCuskey affirmed. The Court addressed only the qualified immunity issue and only the second prong of the familiar test, whether the constitutional right allegedly violated was clearly established at the time. In order to carry its burden, a plaintiff must either present case law well articulating the right and applying it in a similar factual circumstance or show that the conduct’s unconstitutionality was obvious. With respect to the case law, the Court stated that the plaintiff’s cases simply stood for the proposition that parents have certain constitutional rights in family choice issues. They are not at all similar to the factual circumstances here. Even the alleged violations of state law do not establish a violation of a clearly established constitutional right. The Court also concluded that Speicher’s acts were not obviously unconstitutional, given that Ault was still in a relationship with a man accused of child abuse and that she had earlier agreed to the children’s placement with her mother.

Tags: Opinion By McCuskey, Civil Rights, Constitutional Law, Qualified Immunity

School District Failed To Prove That "Be Happy, Not Gay" Slogan Threatened Substantial Disruption

Posted on March 24, 2011 by Michael Rigney

ZAMECNIK v. INDIAN PRAIRIE SCHOOL DISTRICT (March 1, 2011)

Heidi Zamecnik and Alexander Nuxoll were public high school students who opposed homosexuality on religious grounds. In response to a "Day of Silence" promoted by a group critical of those who harassed homosexuals, they participated in a "Day of Truth" the next following school day. Zamecnik wore a shirt bearing the phrase "Be Happy, Not Gay." A school official covered the words "Not Gay" and prohibited the phrase as a violation of the school’s rule against derogatory comments. Zamecnik and Nuxoll brought suit and sought a preliminary injunction. The district court denied the application for an injunction. Almost 3 years ago, the Court reversed. The Court reviewed the phrase as "only tepidly negative" and concluded that the school district presented insufficient facts to support a conclusion that the words would lead to substantial disruption under Tinker. Judge Hart (N.D. Ill.) eventually granted summary judgment to the plaintiffs, awarded each $25 in damages, and entered a permanent injunction. The permanent injunction is more expansive than the preliminary one in that it runs in favor of all students and includes not just shirts but also all clothing and personal items. The District appeals.

In their opinion, Judges Posner, Kanne, and Rovner affirmed. The Court first rejected the District's argument that injunctive relief was moot because Zamecnik had graduated and Nuxoll had finished his classes and was about to graduate. The Court noted that the injunction now runs in favor of all students, not just the named plaintiffs. Such an injunction is proper as long as the group is specified. The District then argued that it presented enough evidence to survive summary judgment. The Court considered the three types of evidence presented. The first was "negligible" -- an affidavit of a school official recounting statements by unidentified school officials themselves recounting statements by unidentified students purportedly identifying incidents of homosexual harassment. The second type was evidence of the harassment of Zamecnik. But statements that are otherwise permissible cannot be suppressed simply because they are met by violence or harassment by those who oppose the speaker's view. In addition, the harassment was not engendered by the T-shirt, but by the lawsuit. The third piece of evidence presented by the District was an expert report, of which the Court was particularly critical. The opinion section of the expert’s 38-page expert report consisted of 2 1/2 pages and, in the Court's view, failed to satisfy any of the Rule 702 requirements. In fact, the Court noted that his conclusion -- that the phrase at issue is "particularly insidious" in a public school setting -- "comes out of nowhere." The expert described no methodology or research and gave no indication that he is familiar at all with the school the plaintiffs attended. His opinions are nothing more than mere conclusions. The district court was correct in concluding that this evidence was insufficient to survive summary judgment. Finally, the Court affirmed the $25 damage awards as justified by the record.

Tags: Opinion by Posner, Constitutional Law, Evidence, Expert Report, Injuction, Rule 702

Defendants Did Not Waive Qualified Immunity Argument

Posted on March 23, 2011 by Michael Rigney

HERNANDEZ v. COOK COUNTY SHERIFF'S OFFICE (February 24, 2011)

Several Cook County Jail inmates escaped in February of 2006. Jail authorities immediately suspected that the escapees had inside help. One guard admitted his involvement. Six additional guards came under suspicion. Internal and criminal investigations were conducted. Several of the guards were suspended with pay. The guards also claimed they were treated harshly during the investigation and discouraged from contacting the union or an attorney. Ultimately, one guard was suspended for five days and two left the department. Administrative charges were dropped against the other three. The six guards brought suit against the Sheriff's office alleging a violation of their First Amendment rights, and included state law intentional infliction of emotional distress and false imprisonment claims. They claimed that the investigation was in retaliation for their safety complaints (the plaintiffs allegedly complained about security and overcrowding problems in the jails) and political views (the head of their unit was running for Sheriff against the incumbent sheriff's Chief of Staff). The defendants moved to dismiss the constitutional claims on qualified immunity grounds and the state law claims on statutory immunity grounds. The court never ruled on that motion. The defendants later moved for summary judgment, but only briefly argued qualified immunity and did not argue statutory immunity in their opening brief. Judge Guzman (N.D. Ill.) a) granted summary judgment on the merits on the retaliation claim based on safety complaints, b) denied summary judgment on the retaliation claim based on political views, c) denied the request for qualified immunity, concluding that defendants had waived it, and d) denied summary judgment with respect to the state law claims. Defendants appeal only the denial of qualified immunity on the constitutional claims.

In their opinion, Judges Cudahy, Flaum, and Wood reversed and remanded. The Court noted that the denial of a motion for summary judgment is ordinarily not appealable. It is, however, when the requested grounds for summary judgment is qualified immunity and when the denial involves only legal issues. Since a finding of waiver is a legal issue, the Court has jurisdiction to entertain the appeal. The Court seemed to have little difficulty in concluding that the district court erred in finding waiver. Although an underdeveloped argument can amount to waiver, it does so only when it provides inadequate notice of the argument. Here, defendants have argued qualified immunity from the beginning of the case. They argued in their motion to dismiss, they argued unambiguously (albeit briefly) in their opening summary judgment brief in a section captioned "Qualified Immunity," and they argued it at length in their reply brief. Arguments raised for the first time in reply briefs are generally considered waived, but arguments more fully developed in reply briefs do not necessarily suffer the same fate. The plain fact is that plaintiffs were on notice of the argument and defendants treatment of it did not constitute a waiver. Finding no waiver, the Court addressed the merits of the argument. The familiar test has two prongs -- whether the defendants violated a constitutional right and, if so, whether that right was clearly established at the time. When the constitutional violation concerns a public employee's First Amendment rights, a court first must determine whether the speech involves a matter of public concern. If it does, the court applies a balancing test. If it does not, the employee is not entitled to constitutional protection. Based on the district court's findings on the safety complaint retaliation claims, the Court was able to determine as a matter of law that the speech did not involve a matter of public concern. The plaintiffs were acting in response to their duties as employees and are not entitled to constitutional protection. Therefore, there was no constitutional violation, and the defendants are entitled to qualified immunity. With respect to the political retaliation claim, however, the Court was unable to reach such a conclusion. The district court failed to identify the disputed and undisputed facts, nor did it make any findings regarding materiality. The Court remanded for that purpose.

Tags: Opinion by Cudahy, Civil Procedure, Civil Rights, Constitutional Law, First Amendment, Qualified Immunity, Summary Judgment, Waiver

Courts Can Bypass Heck And Go Straight To Merits

Posted on March 15, 2011 by Michael Rigney

POLZIN v. GAGE (February 18, 2011)

Gerald Polzin pleaded guilty in 2005 to sexual abuse of two teenage boys. In connection with his presentence investigation, Polzin claimed he was himself a victim of sexual abuse as a boy at the hands of his uncle, an Appleton, Wisconsin police officer. The prosecutor asked the Wisconsin Department of Justice to investigate. The Appleton Police Department declined to conduct its own investigation. Although the prosecutor expressed doubts about the allegations, the trial judge considered it a mitigating factor in Polzin's sentence. Polzin a) filed a state civil suit against Appleton and several police officers which was resolved against him and affirmed on appeal, b) took an appeal from his sentence which was also affirmed on appeal, c) brought a state motion for postconviction relief, and d) brought a § 1983 suit against the prosecutor, the trial judge, the court reporter and the state investigators. In the § 1983 case, he alleged the falsification of evidence and the fabrication of the sentencing transcript. His motion for postconviction relief was pending when he filed his § 1983 claim. He asked the district court to stay the case because of the Supreme Court’s holding in Heck that a § 1983 challenge to a conviction cannot be made unless the conviction has been invalidated. Judge Griesbach (E.D. Wis.) denied the request for a stay, concluding that Polzin was not faced with a statute of limitations problem like Wallace. His claims were akin to malicious prosecution, which do not accrue until the prosecution terminates in his favor. The court therefore dismissed the complaint as barred by Heck. On a motion for reconsideration, however, the court added that Polzin also failed to state a claim on the merits. Specifically, the court ruled that the claims against the court reporter and trial court judge were frivolous in that neither had a role in the investigation and that his claims regarding the investigation did not amount to a constitutional violation. Polzin appeals.

In their opinion, Judges Coffey, Flaum, and Ripple affirmed in part and vacated and remanded in part. The Court held (for the first time) that a district court can ignore the Heck doctrine and proceed to the merits since Heck is not jurisdictional. On the merits, the Court concluded that a) the judge had absolute immunity with respect to the claims of falsifying the transcript, b) the court reporter is not liable because the transcript attached to the complaint showed that Polzin's allegations about the transcript were actually wrong, and c) the prosecutor is entitled to absolute immunity either as a prosecutor or as a witness at the sentencing hearing. Finally, the Court did point out that the district court did not specifically address Polzin's claims against the prosecutor and state investigators in their investigatory role. It remanded for further explanation or consideration of that claim.

Tags: Opinion per curiam, Heck, Wallace, Civil Procedure, Civil Rights, Constitutional Law, Jurisdiction, Section 1983, Seventh Circuit Court Of Appeals

Plaintiffs Bound By Summary Judgment Response Admissions

Posted on March 10, 2011 by Michael Rigney

DELAPAZ v. RICHARDSON (February 14, 2011)

Pablo Delapaz and Michael Sarkauskas are both employees of the City of Chicago's Department of Streets and Sanitation (DSS). They are also both supporters of the Hispanic Democratic Organization. In 2001 in 2002, DSS Commissioner Al Sánchez appointed both men to temporary acting foremen positions in the Department. Michael Picardi replaced Sanchez as Commissioner several years later. Delapaz and Sarkauskas still occupied their temporary positions. Shortly after Picardi became Commissioner, he ordered the elimination of all acting foreman positions and the return of those employees to their prior positions. When Deputy Commissioner Richardson advised Delapaz that he would have to return to his prior position, he also remarked: "Your guy is gone." Both Delapaz and Sarkauskas assumed their prior positions in the summer of 2005, as did all the other acting foremen. Later that year, the Richardson appointed another man as an acting Foreman for snow removal purposes. That man was a contributor and volunteer for Chicago Alderman Richard Mell. Delapaz and Sarkauskas filed suit against Deputy Commissioner Richardson under § 1983, alleging that he violated their First Amendment rights of free association by demoting them because of their HDO affiliation. Judge Marovich (N.D. Ill.) granted summary judgment to Richardson. Delapaz and Sarkauskas appeal.

In their opinion, Circuit Judges Flaum and Evans and District Judge McCuskey affirmed. The Court agreed that a public employee’s firing or demotion because of his or her political affiliation is a First Amendment violation. But to state a claim against a particular defendant, a plaintiff must establish that the defendant participated or caused the deprivation. In their summary judgment response pursuant to local rule, plaintiffs admitted that Picardi ordered the demotions, not Richardson. Courts are entitled to rely on these admissions. In light of the admission, the plaintiffs cannot establish Richardson's liability. The Court did cite another reason why they could not prevail: they waived the Richardson liability argument by not addressing it in their response brief in the district court. And the Court cited yet a third reason why they could not prevail: the merits. The only evidence the plaintiffs presented that Richardson even knew of their HDO affiliation is the "your guy" remark he made to Delapaz, an apparent reference to Sanchez. But they presented no evidence that Sanchez was even affiliated with HDO or, if he was, that Richardson knew about it. And they presented no evidence at all that Richardson knew of Sarkauskas’ HDO affiliation -- only that the timing of his demotion (two weeks after Delapaz) was suspicious. Without a triable issue of fact on whether he knew of their party affiliation, Richardson is entitled to summary judgment.

Tags: Opinion by Flaum, Causation, Civil Procedure, Constitutional Law, First Amendment, Labor & Employment, Summary Judgment

Probable Cause Analysis Limited To Facts And Circumstances Known At The Time Of Arrest

Posted on March 10, 2011 by Michael Rigney

MUCHA v. VILLAGE OF OAK BROOK (February 14, 2011)

Randy Mucha was an Oak Brook, Illinois police officer. He began an internal investigation into potential police officer misconduct in 2004. He discovered that officers were frequently parked near the residence of Frances Gaik, a local woman who had organized a group that was critical of the Oak Brook Police Department. After he became suspicious that she had an internal Department phone list, he began investigating her. He infiltrated her group under a false identity and ran a criminal background check on her through the Law Enforcement Agencies Data System. Gaik discovered the background check only after she subpoenaed the Illinois State Police more than a year later. Police Chief Thomas Sheahan obtained a warrant and arrested Mucha, charging him with unlawfully requesting a background check. After the charges were dismissed, Mucha filed a § 1983 false arrest claim against the Village. Judge Hart (N.D. Ill.) granted summary judgment to the Village. Mucha appeals.

In their opinion, Judges Bauer, Wood, and Sykes affirmed. In order for Mucha to prevail, the Court noted he had the burden to prove that he was arrested without probable cause. Probable cause exists if the facts and circumstances known at the time support a belief by a prudent person that a crime has been committed. Here, Sheahan knew at the time of the arrest that Mucha did not approve of Gaik’s group and that he spied on her and the group, infiltrated their meetings, ran Internet searches, and did in fact run a criminal background check when Gaik was not the subject of any legitimate investigation. Given that knowledge, in the absence of any knowledge supporting a conclusion that the background check was legitimate, the Court concluded that probable cause existed. The existence of probable cause is also not affected by any improper motive on the part of Sheahan.

Tags: Opinion by Bauer, Civil Rights, Constitutional Law, Probable Cause, Seventh Circuit Court Of Appeals, Unlawful Arrest

Once Officer Has Probable Cause, He Need Not Continue Investigation

Posted on March 9, 2011 by Michael Rigney

SOW v. FORTVILLE POLICE DEPARTMENT (February 11, 2011)

Mouhamadou Sow, a Senegal native, traveled all over the United States selling African items at fairs and festivals. In November 2007, Sow tried to cash a $1000 money order at the Fortville, Indiana Post Office. He had purchased the money order at a United States Post Office in Columbus, Ohio. The postal clerk suspected that the money order was counterfeit and told Sow as much. After conferring with her supervisor, she told Sow that she did not have enough money to cash the money order and directed him to the nearby McCordsville Post Office. Once Sow left, a postal employee reported the suspected forgery incident to the Fortville police. The Fortville police notified the McCordsville police, who stopped Sow before he reached the post office. Fortville Officer Michael Fuller arrived at the scene. The police interrogated Sow for over an hour. Sow produced the money order but was unable to produce a receipt. He did produce other receipts and money orders. Both officers examined the money order and also believed that it was counterfeit. They called post office headquarters and a local postal inspector and described the money order and its serial numbers. Both postal employees told the officers that the money order was counterfeit. The officers did not call the Columbus Post Office where Sow told them he purchased the money order, even though they had its phone number. The police arrested Smith. The charges were ultimately dismissed. Smith brought suit under §§ 1983, 1985, and 1986 against the Fortville postal employees, the two police departments, and Officer Fuller. He alleged that he was unlawfully arrested, that he was physically mistreated, and that his handcuffs were too tight. Judge Young (S.D. Ind.) dismissed the postal employees and granted summary judgment to the police departments and Fuller. Sow appeals.

In their opinion, Circuit Judges Flaum and Evans and District Judge McCuskey affirmed. The Court first affirmed the dismissal of the two police departments. Section 1983 liability for local governments depends on state law. Indiana law does not allow municipal police departments to sue or be sued. Next, the Court rejected Sow's argument that the statements made to Fuller by the postal employees were inadmissible hearsay. Since the statements were offered not for their truth but because they constituted part of the facts and circumstances known to Fuller when he decided to arrest Sow, they were properly admitted. Third, the Court addressed Sow's unlawful arrest claim. That claim rests on the existence of probable cause. Here, although Fuller did not call the post office where Sow claimed to have purchased the money order, he received information from several third parties that supported the conclusion that the money order was a forgery. He had no reason to believe that the information he received was anything but truthful. Based on that information, the Court concluded that a reasonable person would believe that a crime had been committed -- probable cause therefore existed. Finally, the Court affirmed with respect to the racial profiling, excessive force, and conspiracy allegations.

Tags: Opinion By McCuskey, Civil Rights, Constitutional Law, Evidence, Municipal Liability, Probable Cause, Section 1983, Seventh Circuit Court Of Appeals, Unlawful Arrest

Disciplinary Sanctions That Do Not "Substantially Worsen" Confinement Conditions Do Not Implicate Due Process

Posted on March 8, 2011 by Michael Rigney

MILLER v. DOBIER (February 11, 2011)

Dale Miller is confined pursuant to the Sexually Violent Persons Commitment Act. While confined, he was disciplined on two separate occasions in 2007 and 2008. In 2007, he was accused of threatening a deputy sheriff. A disciplinary committee found him guilty of those charges and reduced his status within the institution. As a result, he lost certain privileges; including longer visitation, later access to the day room, and access to electronic equipment. In 2008, he was accused of damaging furniture, breaking a window, and threatening staff. Again, a disciplinary committee upheld the charges in a hearing. Miller was placed in "close" status for a month. His punishment again included lost privileges. He had an earlier curfew, no yard privileges, shorter visits, no access to special events, and no use of the library or exercise room. Miller brought suit against institution officials pursuant to § 1983 claiming a denial of procedural due process. Judge Baker (C.D. Ill.) granted summary judgment to the defendants. Miller appeals.

In their opinion, Chief Judge Easterbrook and Judges Posner and Wood affirmed. The Court never addressed Miller’s evidence of procedural deficiencies. Instead, it concluded that the due process clause was not even implicated. There is no constitutional due process requirement unless there is a deprivation of liberty or property. When a lawfully committed person is subjected to discipline, the due process clause is not implicated unless the institution substantially worsens the conditions of his confinement. Here, even while Miller was in "close" status, he had much freedom. The reduction in his status does not amount to a deprivation of a liberty interest.

Tags: Opinion by Posner, Civil Rights, Constitutional Law, Liberty Interest, Procedural Due Process, Property Interest, Section 1983, Sexually Violent Persons Commitment Act

Summary Judgment Was Appropriate When Prisoner Did Not Present Evidence That He Exhausted Administrative Remedies

Posted on March 8, 2011 by Michael Rigney

HURST v. HANTKE (February 10, 2011)

Joseph Hurst suffered a stroke while incarcerated in an Illinois prison. More than eight months later, he filed a grievance complaining of his treatment by the prison’s medical staff. The prison denied the grievance on the grounds that it was not filed within 60 days, as required by law. Hurst appealed the denial, contending that the stroke left him almost totally incapacitated "until just recently." The prison rejected his appeal on the ground that Hurst provided no justification. Hurst brought suit pursuant to § 1983 alleging deliberate indifference on the part of the prison’s medical staff. Judge Kapala (N.D. Ill.) granted summary judgment for the defendants on the ground that Hurst had failed to exhaust his internal prison remedies. Hurst appeals.

In their opinion, Judges Posner, Evans, and Hamilton affirmed. The Court concluded that the prison was wrong in denying Hurst's appeal. The law does not require an inmate to submit evidence in support of a claim of good cause any more than a plaintiff is required to submit evidence with a complaint. The prison could have insisted on additional substantiation, in which case Hurst would have had to supply it. Notwithstanding the error at the internal prison level, the Court nevertheless affirmed. Because when he sued, and when the defendants moved for summary judgment, Hurst was required to present evidence that he exhausted his administrative remedies -- that is, that he had filed a grievance as soon as he was reasonably able. He had an opportunity -- and an obligation -- at that stage to substantiate his good cause claim. Because he did not, summary judgment for defendants was appropriate.

Tags: Opinion by Posner, Civil Procedure, Civil Rights, Constitutional Law, Good Cause, Good Cause, Grievance, Prison Litigation Reform Act, Summary Judgment, Summary Judgment

Prison's Diagnosis And Treatment Policy Did Not Consider Particular Medical Needs Of Individual Inmates

Posted on March 2, 2011 by Michael Rigney

ROE v. ELYEA (January 28, 2011)

Hepatitis C is a disease that affects the liver. It is caused by the HCV virus and is transmitted through blood to blood contact. Many hepatitis C sufferers are asymptomatic while others develop cirrhosis or liver cancer. These conditions sometimes develop two or three decades after the initial infection. The virus is relatively common in the United States prison population. Edward Roe, Anthony Stasiak, Timothy Stephen, and Jonathan Walker are current or former Illinois prison inmates who suffer from the disease (Roe actually died in 2007). The plaintiffs brought suit against Dr. Willard Elyea, the former medical director of the Illinois Department of Corrections. They allege that the Department’s diagnosis and treatment protocols violated the Constitution. Their principal contention is that Elyea instituted a policy applicable to all inmates suffering from hepatitis C that deprived them of treatment unless they had a certain amount of time remaining on their sentences. The plaintiffs' damage claims were tried to a jury, which awarded to each plaintiff $20,000 in compensatory damages and $2 million in punitive damages. Judge Baker (C.D. Ill.) rejected Elyea’s qualified immunity claim but vacated the judgments in favor of Messrs. Stephen, Stasiak, and Walker on the ground that insufficient evidence supported the verdicts. He upheld the verdict and compensatory damages in favor of Roe but ordered a conditional remittitur, giving Roe the choice of $20,000 in punitive damages or a new punitive damages trial. When Roe made no choice, the court entered an order reducing the punitive damages to $20,000. Stephen, Stasiak, and Walker appeal the court's entry of judgment against them, Roe's estate appeals the remittitur, and Elyea appeals the qualified immunity ruling and the denial of judgment as a matter of law with respect to Roe, and also challenges the Court's jurisdiction to hear the appeal.

In their opinion, Seventh Circuit Judges Ripple and Rovner and District Judge St. Eve affirmed. The Court first addressed two jurisdictional issues. It rejected Elyea's argument that plaintiffs’ notice of appeal was ineffective because it was filed after the entry of the conditional remittitur order but before entry of the final judgment. The Court held that Federal Rule of Appellate Procedure 4(a)(2) applied to the remittitur order and the premature notice became effective when the final judgment was entered. The Court agreed with Elyea, however, that the remittitur order was not reviewable (a point Roe ultimately conceded). A party cannot appeal a judgment to which it has consented. The Court turned to qualified immunity and the merits. With respect to qualified immunity, the Court concluded that the district court properly denied qualified immunity. It was "clearly established" that an inmate had a right to adequate medical care that addressed his particularized need. The evidence in the record allowed a factfinder to conclude that Elyea's policy precluded certain treatment without regard to the inmate's particularized need. On the merits, the Court noted that the plaintiff's burden on an Eighth Amendment deliberate indifference claim is high. He must establish both an objectively serious medical need and that a prison official disregarded a known risk. Applying that test to each of the plaintiffs, the court concluded: a) Roe established the serious medical need and a denial of treatment without regard to his particular medical needs, and the record contained sufficient support for the jury's conclusion on causation, b) Walker failed to demonstrate Elyea's responsibility for his lack of treatment, c) Stasiak demonstrated a serious medical need but failed to demonstrate that the policy, as opposed to the time remaining on his sentence, resulted in any injury, and d) Stephen demonstrated a serious medical need but also failed to demonstrate that the policy, as opposed to the time remaining on his sentence, resulted in any injury.

Tags: Opinion by Ripple, A, Appellate Procedure, As, Causation, Civil Rights, Constitutional Law, Deliberate Indifference, Eighth Amendment, Federal Rule Of Appellate Procedure 4(a)(2), Judgment, Jurisdiction, Law", Matter, Remittitur, Seventh Circuit Court Of Appeals, of

District Court Erred In Weighing Witness Testimony At Summary Judgment Stage

Posted on February 28, 2011 by Michael Rigney

LAWSON v. VERUCHI (January 28, 2011)

A June, 2007 confrontation inside a Target store in Rockford, Illinois spilled out into the parking lot and down the street where Kimberly Colvin was assaulted by an unknown man. She reported the matter the next day to Rockford police She described the man and provided the license plate number of the car he was driving. A follow-up investigation on the plate led Detective Veruchi to Jeffrey W. Lawson ("JW"). JW's mother told Smith that she would have JW call him. Veruchi also received a call from a courtroom bailiff, who knew JW and knew that he had had an altercation in the Target. Veruchi even received a call from JW who originally agreed to come to the station but later reconsidered and referred Veruchi to his lawyer. In the meantime, Veruchi arranged a photo array with the victim and another witness. Veruchi obtained what he thought was JW's photograph from the county jail system. What he got, however, was a picture of Jeffery A. Lawson ("JA"). What happened at the photo array is disputed. Veruchi claims that the victim and witness both identified JA's picture as the attacker. Both the victim and witness denied that they positively identified JA as the attacker. Nevertheless, Veruchi relied on his version of the facts in an affidavit for a warrant. JA was arrested on the warrant and held in custody for 34 days before his release. JA brought suit against Veruchi and the City of Rockford under § 1983, alleging that his arrest was without probable cause and that municipal liability attached because Rockford had no policy to prevent his arrest. Judge Kapala (N.D. Ill.) granted summary judgment to Veruchi and the City. JA appeals.

In their opinion, Judges Posner, Manion, and Hamilton reversed and remanded. In order to prevail on a claim of unconstitutional arrest, a plaintiff must establish the absence of probable cause. In most cases, the issuance of a warrant will shield an officer from liability even if the arrest is later determined to be without probable cause. But if the warrant is issued on an affidavit that contains statements that the affiant knows are false or made with reckless disregard for the truth, the warrant does not shield the officer. Here, JA presented sufficient evidence of just that situation. The district judge erred when he discounted the victim's testimony (that is a question for the jury) and found the plaintiffs theory incredible (it is not). Considering the evidence in the light most favorable to JA, a jury could find that Veruchi intentionally provided false information in order to obtain the warrant and that probable cause to arrest JA did not exist. Since the district court's ruling in favor of the City was based on its dismissal of the underlying claim against Veruchi, the Court also reversed that decision and remanded for further consideration.

Tags: Opinion by Manion, Civil Rights, Constitutional Law, Probable Cause, Section 1983, Seventh Circuit Court Of Appeals, Warrant

Court Finds Qualified Immunity On "Novel" Question Whether A Misidentification Challenge To A Parole-Violation Warrant Requires Additional Procedural Protection

Posted on February 24, 2011 by Michael Rigney

ATKINS v. CITY OF CHICAGO (January 25, 2011)

In late 2003, Chicago police officers arrested William O. Atkins because they had a parole violation warrant for "William Atkins." Atkins was kept in custody overnight and then transferred to the custody of the Illinois Department of Corrections and held for 36 days. Atkins alternately claimed that he was not the warrant's William Atkins and that he was that William Atkins but that he could not violate his parole because it had expired. After his release, Atkins sued the arresting officers, the City of Chicago, and several employees of the Department of Corrections. The complaint alleged an unlawful arrest as against the City defendants and an unlawful detention as against the state defendants. Judge Shadur (N.D. Ill.) dismissed the suit for failure to state a claim. Atkins appeals.

In their opinion, Judges Posner, Manion, and Hamilton (concurring in part and concurring in judgment) affirmed. The Court began with the arrest and whether the officers had probable cause. Although the police lacked probable cause to stop the vehicle in which Atkins was a passenger, they nevertheless had an affidavit with his name on it. If he was the person named in the warrant, the absence of probable cause to stop the car does not vitiate the probable cause to arrest him. The affidavit matched Atkins’ first name, last name, gender, race, day of birth, month of birth, and the first three digits of his Social Security numbers. It did not match Atkins’ height, weight, or year of birth. Given the closeness of the match, the Court concluded that the officers did not err in arresting Atkins or, if they did, it was a reasonable error and did not violate Atkins's constitutional rights. Atkins' stronger complaint is that the state defendants held him unlawfully for 36 days, despite his protests. The Court stated that alleged parole violators must be afforded a preliminary hearing "as promptly as convenient" to determine probable cause and a full hearing within a "reasonable time." The hearings can be administrative. Atkins had an administrative hearing on the seventh day of his incarceration but failed to convince the hearing officer that he was either not the same William Atkins or that his parole has expired. It was on the 36th day that Atkins had his full hearing and was released. The Court noted a possible distinction between the due process rights of an alleged parole violator who admits the parole but denies the violation and an alleged parole violator who denies that he is even on parole. The former has already agreed to administrative adjudication of parole as one of the terms of his parole. The latter has not. But that would give every alleged parole violator an opportunity for two hearings. Particularly given the Court's belief that a judicial hearing is not necessarily superior to an administrative hearing, the Court doubted that the difference would lead to a constitutional distinction. It never resolved the issue, however, because its belief that the question was novel inescapably led to the conclusion that the defendants were entitled to qualified immunity. Finally, the Court addressed Atkins' claim that he was mistreated during the 36 days of confinement. The Court ultimately concluded that the claims were properly dismissed. Notwithstanding the fact that Atkins was represented by counsel and had already amended his complaint three times, the Court noted that some allegations were highly implausible while others were contradicted or internally inconsistent. Atkins never stated a plausible claim for a constitutional violation. In addition, Atkins has died and his the estate has no way of even presenting his version of the facts.

Judge Hamilton joined the majority opinion with respect to the claims against the City defendants, the conditions of confinement claims, and the qualified immunity holding He wrote separately, however, to address the merits of the alleged due process violation. Generally, a person arrested without a warrant is entitled to a judicial hearing within 48 hours. An alleged parole violator is entitled to much less protection -- but only because he is already on parole and has a more limited liberty interest. Here Atkins claimed that he was not the parolee named in the warrant. Judge Hamilton therefore concluded that due process imposes procedural protections on identification challenges to parole violation warrants. He addressed the issue under the Matthews framework, considering: the private interest, the risk of erroneous deprivation, and the government interest. The private interest is basic liberty, the risk of error is likely significant, and the government interest is closely aligned with the private interest. Weighing those factors, Judge Hamilton concluded that a claim of misidentification should be resolved by a prompt appearance before a judge.

Tags: Opinion by Posner, Civil Rights, Constitutional Law, Liberty Interest, Opinion (Concurring In Part And Concurring In The Judgment, Parolee, Probable Cause, Procedural Due Process, Unlawful Arrest

Res Judicata Bars Suit Under Different Legal Theory

Posted on February 17, 2011 by Michael Rigney

CZARNIECKI v. CITY OF CHICAGO (January 21, 2011)

For a few months in late 2006 in early 2007, Wojciech Czarniecki was a probationary police officer with the Chicago Police Department. He alleges that Assistant Deputy Superintendent Tobias made several negative references to his Polish ancestry in a discussion about Czarniecki's use of exam study guides. He alleges that his dismissal followed shortly thereafter and that another Polish probationary officer was dismissed at about the same time. He brought suit under § 1983 against the City and Tobias, alleging national origin discrimination in violation of the 14th Amendment. The district court granted summary judgment to the City. Shortly before trial, the court granted Czarniecki's motion to dismiss his claim against Tobias without prejudice - but conditioned the dismissal on a requirement that he seek her permission if he ever wanted to refile it. Czarniecki appealed that order because of its refiling condition, then sought permission to refile and appealed that order when the court denied permission on the grounds that his first appeal deprived her of jurisdiction. A few months later, Czarniecki filed a new complaint alleging national origin discrimination in violation of Title VII of the Civil Rights Act of 1964, naming only the City. Judge St. Eve (N.D. Ill.) dismissed the complaint on res judicata grounds. Czarniecki appeals.

In their opinion, Seventh Circuit Judges Bauer, Flaum, and Hamilton consolidated the three appeals, affirmed the res judicata dismissal, and dismissed the other appeals as moot. The Court noted the three familiar ingredients of federal res judicata (federal res judicata applies when the earlier judgment was in federal court): a final decision, a dispute arising out of the same operative facts, and the same parties. The Court found that the three requirements were met here. There is no dispute that the earlier decision against the City was final, the parties are the same (the fact that Tobias is not a defendant in the second suit is of no consequence), and the claim arises from the same operative facts. The fact that he sets forth a new theory of liability, even with different proof requirements, does not change the res judicata result. The Court also rejected Czarniecki's argument that res judicata should not apply because he lacked a "right to sue” letter at the time of his first complaint and could not have brought a Title VII claim. The Court concluded that Czarniecki had several ways in which he could have dealt with that situation -- splitting his claims was not one of them. Finally, the Court dismissed as moot Czarniecki's two other appeals since both only dealt with his ability to refile.

Tags: Opinion By Hamilton, Civil Procedure, Civil Rights Act of 1964, Constitutional Law, Labor & Employment, Mootness, National Origin Discrimination, Res Judicata, Section 1983, Title VII

Changing Theories Of Liability Does Not Save Complaint From Res Judicata Defense

Posted on February 16, 2011 by Michael Rigney

ARLIN-GOLF v. VILLAGE OF ARLINGTON HEIGHTS (January 21, 2011)

Ronald Popp and Victor Valenti purchased the Arlin-Golf Shopping Center in the Village of Arlington Heights, Illinois in 2001. Within a year, the Village implemented a Tax Increment Financing District and announced that the Center would be demolished and the property redeveloped within months. The Village never followed through with its plan, however. The owners claim that they did encourage Center tenants to leave, discouraged prospective tenants from renting, and generally continued to announce falsely that the property would be condemned and redeveloped. The owners sued the Village in state court challenging the ordinance itself and alleging that the Village's actions constituted a taking under Illinois' Constitution. In 2008, the owners and the Village settled their lawsuit. Under the terms of the settlement, the owners dismissed the suit with prejudice and the Village purchased the property for $1.6 million. A few weeks after the sale closed, the owners brought suit in federal court against the Village, several Village officials, a brokerage firm that had assisted the owners in trying to sell the property before the settlement, a local bank, and the bank's chairman. Their complaint included allegations of violations of the Equal Protection, Due Process, and Takings Clauses, among others. Essentially, their claim was that the defendants' actions resulted in significant financial losses in connection with their ownership of the Center. Judge Coar (N.D. Ill.) dismissed the complaint on res judicata grounds. The owners appeal.

In their opinion, Judges Cudahy, Flaum, and Kanne affirmed. The Court noted the three res judicata requirements: a) a final judgment, b) identity of cause of action, and c) the identity of the parties. Under Illinois law, identity of cause of action exists if the claims arise from the same operative facts, even if they assert totally different theories of relief. The Court found that test met here. Both suits arise from the Village's implementation of its ordinance and the conduct of the defendants that allegedly led to the owners’ financial losses. The federal suit does not allege any material facts that occurred after the state court settlement. The Court also found no error in the district court's refusal to allow the owners to amend their pleadings, noting that the owners did not submit a proposed amended complaint to the district court in order to show that an amendment would not be futile.

Tags: Opinion by Flaum, Civil Procedure, Constitutional Law, Identity Of Cause Of Action, Res Judicata

State Court's Zoning Ordinance Invalidation Was Not A Taking

Posted on February 15, 2011 by Michael Rigney

BETTENDORF v. ST. CROIX COUNTY (January 20, 2011)

John Bettendorf has owned a parcel of property in St. Croix County in west-central Wisconsin for decades. In the 1970s and early 1980s, Bettendorf operated a carpet sales business on the property although it was zoned agricultural-residential. In 1985, Bettendorf sought and received permission to use the property for commercial purposes. The ordinance granting permission also provided, however, that the permission was personal to Bettendorf and could not be transferred. Almost 20 years later, Bettendorf sought a declaration in state court that the limitations on the rezoning were void and should be stricken. Unfortunately, the state court declared the entire ordinance void. The County withdrew its permission for commercial operations. Bettendorf filed suit in federal court alleging an unconstitutional taking and violations of his procedural and substantive due process rights. Judge Crabb (W.D. Wis.) granted summary judgment to the County. Bettendorf appeals.

In their opinion, Judges Bauer, Flaum, and Hamilton (concurring in part and dissenting in part) affirmed. The Court first addressed the takings claim. It stated that Bettendorf had to establish that government action had deprived him of "all or substantially all" use of the property. The relevant factors are the nature of the regulatory scheme, the severity of the economic impact, and the degree of interference with the owner's investment opportunities. Here, there was no government intrusion or interference with investment opportunities because Bettendorf himself brought the state action that resulted in the declaration that the ordinance was void. Bettendorf also has not lost the use of the property. He is free to use the property for the agricultural and residential purposes for which it is zoned. The Court thus rejected the takings claim. On the substantive due process claim, the Court stated that Bettendorf would have to establish that the County's decisions were "arbitrary, oppressive, or unreasonable." But here, the County's actions were taken in response to a court order invalidating the ordinance. The Court rejected the substantive due process claim, finding that action utterly reasonable. Finally, the Court addressed and rejected Bettendorf's procedural due process claim. Bettendorf's due process claim is that he was not afforded the typical County appeals process in a rezoning case. The Court noted, however, that it was Bettendorf who chose to challenge the ordinance in state court in lieu of the local appeals process. Bettendorf was afforded adequate process in those state court proceedings. Even if the local appeals process was a superior method for resolving the issue, due process does not require superior process -- only constitutionally adequate process.

Judge Hamilton concurred with the majority's treatment of the due process claims but dissented from its treatment of the takings claim. He relied on the "vested rights" theory that the majority concluded was inadequately presented. Judge Hamilton surveyed the "long and winding history" of the concept in American law. Under the concept, an existing and lawful property use is a critical consideration in a takings claim. Judge Hamilton thus addressed the three factors quite differently than did the majority. First, the nature of the government interference is significant in that it prohibited a long time existing and lawful property use. Second, the economic impact appears to be significant although unclear on the pleadings. Third, although Bettendorf did agree to the condition, the withdrawal of permission substantially interfered with his investment expectations. Judge Hamilton recognized that his consent to the condition limited his expectations to continued commercial use only as long as he owns the property and would thus negatively affect any compensation due.

Tags: Opinion by Bauer, Constitutional Law, Opinion (Concurring In Part, Dissenting In Part) By Hamilton, Procedural Due Process, Substantive Due Process, Taking, Zoning

Allegations Of Forced Outdoor Work In Cold Without Protective Clothing State An Eighth Amendment Claim

Posted on February 11, 2011 by Michael Rigney

SMITH v. PETERS (January 19, 2011)

Anthony Smith was incarcerated in Indiana state prison. He brought suit against prison employees, alleging violations of the First and Eighth amendments. According to the allegations of his complaint, he was a) forced to work outside in freezing conditions without protective equipment (including gloves), b) forced to work in a group with axes and shovels without receiving safety instruction, and c) retaliated against for filing grievances complaining about the work conditions. Chief Judge Young (S.D. Ind.) dismissed the complaint, concluding that a) the outdoor work was merely "the usual discomforts of winter" and b) Smith's fear of dangerous working conditions was not actionable in the absence of a physical injury. He did not address the First Amendment claim. Smith appeals.

In their opinion, Seventh Circuit Judges Posner, Wood, and Williams reversed and remanded. On the protective clothing claim, the Court stated that the allegations of forcing Smith to work in freezing conditions without gloves is sufficient to state an Eighth Amendment Claim. On the dangerous conditions claim, the Court agreed that Smith was not entitled to injunctive relief (because he had been transferred to another prison) or compensatory damages (because of 42 U.S.C. § 1997e(e)’s a physical injury requirement). However, the complaint's allegation of a reckless exposure to serious physical injury does state an Eighth Amendment claim and the Court concluded that Smith is entitled to seek remedies not precluded by § 1997e (including nominal and punitive damages). Finally, the Court noted that the complaint stated a claim for a First Amendment violation and the district court erred by not addressing it.

Tags: Opinion by Posner, Civil Rights, Constitutional Law, Cruel And Unusual Punishment, Eighth Amendment, First Amendment, Seventh Circuit Court Of Appeals

Defendants Can Appeal Denial Of Qualified Immunity By Accepting Plaintiff's Version Of Disputed Facts

Posted on February 7, 2011 by Michael Rigney

JONES v. CLARK (January 14, 2011)

Early one August morning, Christina Jones had begun her job reading meters for Commonwealth Edison. Jones is African-American. On this particular day, her job took her to Braidwood, Illinois. Braidwood, a small town about 50 miles southwest of Chicago, has an almost exclusively white population. Apparently, a "concerned citizen" thought that she was something other than a meter reader and called the police. [According to her complaint:] Officer Clark was the first to arrive and question her. Although she wore numerous articles of clothing with her employer's logo and provided two separate pieces of identification, Clark would not let her go. When he asked for her date of birth, she stepped away and started to call her supervisor on her cell phone. At that point, Officer Kaminski arrived. He screamed at her, knocked the phone out of her hand, cuffed her hands behind her back, threw her against the car, and arrested her. She was charged with obstructing a peace officer and released on bond. The charges were later terminated in her favor. Jones brought suit, alleging Fourth Amendment violations. Judge Andersen (N.D. Ill.) concluded that disputed issues of fact precluded resolution either of the merits or defendants' request for qualified immunity. Defendants appeal.

In their opinion, Judges Wood, Evans, and Sykes affirmed. The Court first addressed its appellate jurisdiction. Although the "collateral orders" exception to the finality rule does apply to the appeal of qualified immunity denials, it does so only in so far as the appeal raises an issue of law. Even in a case, like this, where there are disputed issues of fact, defendants can (and these defendants have) get their appeal if they limit it to plaintiffs version of the facts. Comfortable with its jurisdiction, the Court turned to the merits. Qualified immunity has two prongs: was there a constitutional deprivation and were the constitutional rights at issue clearly established. With respect to the second prong, the constitutional right at issue here -- the right to be free from an arrest without probable cause -- was certainly clearly established. Therefore, the only question for the Court on the merits is whether Clark and Kaminski violated Jones' rights. The Court appeared to have little difficulty in answering that question affirmatively (again, on Jones' version of the facts). The Court noted that there was nothing in the record that would provide reasonable suspicion that she was engaged in unlawful activity. Their initial detention of her was therefore a constitutional deprivation. In addition, her actual arrest was a constitutional violation. Since the officers had no reason to detain her in the first place, anything supporting probable cause to arrest her must have occurred after her detention. Her post-detention conduct does not support probable cause either for disorderly conduct or for obstructing a peace officer. With respect to the former, she acted professionally at all times. With respect to the latter, the offense requires a physical act rather than just an argument with a policeman. The officers are therefore not entitled to qualified immunity on this record.

Tags: Opinion by Wood, Appellate Jurisdiction, Civil Rights, Collateral Order Doctrine, Constitutional Law, Fourth Amendment, Jurisdiction, Probable Cause, Qualified Immunity, Reasonable Suspicion, Seventh Circuit Court Of Appeals

County Tax Board Members Receive Absolute Immunity

Posted on January 31, 2011 by Michael Rigney

HEYDE v. PITTENGER (January 11, 2011)

Raymond Heyde owns residential property in Tazewell County, Illinois, just south of Peoria. In late 2003, Heyde received his 2004 tax assessment notice. He filed a complaint with the County Board of Review, asserting that the $207,000 assessment was too high (the proper assessment level is 33 1/3% of the property's fair cash value). The Board reduced the assessment to $140,000. He complained again after he received his 2005 notice, which increased the assessment to $149,000. The Board declined to reduce their assessment. The assessment went up again in 2006, to $153,000. Again, he complained and submitted a then-recent $435,000 property appraisal (which would result in a $145,000 assessment). The Board not only did not reduce the assessment, but increased it to $436,000 in a June 1, 2006 decision. Heyde continued to complain about his assessment each year -- the Board refused to budge. Heyde appealed the June 1 decision to the Illinois Property Tax Appeal Board. Although the Appeal Board reduced the assessment, Heyde was still dissatisfied and has sought administrative review in state court. He also has additional appeals before the Appeal Board for subsequent years. In 2007, Heyde filed a § 1983 action against the members of the Board and the County Assessors. He alleged that the defendants deprived him of equal protection rights, conspired to deprive him of his equal protection rights and retaliated against him for exercising his lawful challenge rights. Judge Mihm (C.D. Ill.) concluded that the members of the Board had absolute immunity and dismissed the complaint as to them. He dismissed without prejudice as to the Assessors based on principles of comity on the grounds that Heyde had not exhausted state remedies. Heyde appeals.

In their opinion, Seventh Circuit Judges Cudahy, Rovner, and Evans affirmed. Addressing first case against the Board members, the Court noted that absolute immunity does apply to a quasi-judicial adjudicatory body when it acts in a capacity functionally equivalent to that of a judge or prosecutor. It does not, however, apply to administrative or ministerial acts. Relying on the Board’s statutory authority and the Court’s own precedent, the Court concluded that Board members were entitled to absolute immunity. They fit neatly within the factors identified by the Supreme Court in Butz. The Court turned to the claims against the Assessors. In McNary, the Supreme Court held that challenges to state tax systems must occur within the state’s courts, with final review in the Supreme Court. A § 1983 action is therefore not the proper vehicle. The Court rejected Heyde's argument that the Illinois system failed to meet the "plain, speedy and efficient" exception to the McNary rule. The Court recognized the delays inherent in the Illinois system but concluded (not for the first time) that they were not enough to avoid McNary.

Tags: Opinion by Evans, Absolute Immunity, Civil Rights, Comity, Constitutional Law, Equal Protection, Real Estate Taxes, Section 1983, Seventh Circuit Court Of Appeals, State Tax

Officer Need Not Have Probable Cause For The Crime Charged If He Has Probable Cause For Any Offense

Posted on January 21, 2011 by Michael Rigney

RAY v. CITY OF CHICAGO (January 5, 2011)

A Chicago Police officer pulled over Nona Ray for driving an night without headlights. He arrested her when he found cocaine in her car. She was charged with possession of a controlled substance and was detained for several hours. The officer also impounded her vehicle. The drug charges against her were eventually dropped. She contested the seizure of her automobile but a hearing officer found in favor of the City. Ray brought suit against the City and the officer, claiming a deprivation of her Fourth and Fourteenth Amendment rights. She also sought review of the hearing officer's finding and challenged the constitutionality of the seizure ordinance. Judge Zagel (N.D. Ill) dismissed the complaint. Ray appeals.

In their opinion, Seventh Circuit Judges Cudahy, Rovner, and Evans affirmed. First, the Court rejected Ray's claim that the officer lacked probable cause to believe that she possessed drugs. The officer had probable cause to believe she committed a traffic offense -- that is all he needed for the arrest. Second, the Court rejected Ray's claim that the length of her detention violated the Constitution. The Court noted that it has held that detentions of up to 14 hours were reasonable absent an improper purpose, which is not alleged here. Third, the Court rejected her malicious prosecution-type claim that the officer planted the drugs. Because Illinois recognizes a malicious prosecution tort, she cannot bring a constitutional claim. Fourth, to the extent she alleged a Brady claim and did not waive it, the Court rejected it. A Brady claim is not viable in a situation where a person is never prosecuted. Finally, the Court rejected her claim regarding the impoundment of her automobile. Not only did she fail to adequately state any reason to reverse the district court, the Court's independent review of the district court's rationale convinced it that it was correct.

Tags: Opinion by Cudahy, Civil Rights, Constitutional Law, Fourteenth Amendment, Fourth Amendment, Malicious Prosecution, Probable Cause, Seventh Circuit Court Of Appeals

Key Differences Preclude Meeting Equal Protection's "Similarly Situated" Pleading Requirement

Posted on January 19, 2011 by Michael Rigney

LABELLA WINNETKA, INC. v. THE VILLAGE OF WINNETKA (December 29, 2010)

LaBella Winnetka operated as a restaurant in Winnetka, Illinois since 1993. It occupies a leased space and renews the lease from time to time. It also has a liquor license. Each year, Winnetka sends it a renewal form. Each year LaBella completes the form and Winnetka renews the license. A fire at the building in early 2007 damaged the roof over the LaBella dining room and forced its closure. The Village refused to allow repairs to the restaurant’s interior until the roof was fixed. It also refused to allow LaBella to reopen the undamaged portion of its leased premises. At the same time, other restaurants, even one operating out of the same building, were allowed to reopen in allegedly similar circumstances. LaBella's most recent liquor license was due to expire in March of 2008. Winnetka never sent a renewal form and terminated the license went LaBella did not file for renewal. LaBella brought suit against the Village and the Village Manager, alleging a violation of its equal protection, substantive due process, and procedural due process rights. The complaint alleged that the benefits bestowed on the other restaurants came about because of their friendships with the Village Manager. Judge Kendall (N.D. Ill.) granted defendants' motion to dismiss. LaBella appeals.

In their opinion, Seventh Circuit Judges Posner, Flaum, and Sykes affirmed. The Court first considered the "class of one" equal protection claim. In order to state such a claim, one must allege treatment different from others "similarly situated." LaBella concedes that the restaurants that were allowed to reopen did not incur the same major fire damage as the LaBella roof. They are therefore not "similarly situated" and the equal protection claim fails. The Court next considered and rejected LaBella's substantive due process claim relating to its property interest in its lease and business. In order to prevail on that claim, LaBella had to show an independent constitutional violation or the inadequacy of state law remedies. It did neither. Finally, the Court rejected LaBella's procedural due process claims related to the liquor license non-renewal. First, to the extent the claim is based on the Village's simple failure to send a renewal form, there was no constitutional deprivation. Second, to the extent the claim is that the Village revoked the license without notice or hearing, the allegations of the complaint fall far short of even the notice pleading requirements of the federal rules. Finally, the claim fails because LaBella does not even allege that it took advantage of post-deprivation remedies or that they were inadequate.

Tags: Opinion by Flaum, Civil Procedure, Civil Rights, Class-of-One, Constitutional Law, Equal Protection, Inadequacy Of State Remedies, Pleading Requirements, Post-Deprivation Remedies, Procedural Due Process, Similarly Situated, Substantive Due Process

State's District Court Filing For Review Of TTAB Decision Does Not Amount To Waiver Of Sovereign Immunity

Posted on January 19, 2011 by Michael Rigney

UNIVERSITY OF WISCONSIN v. PHOENIX INTERNATIONAL SOFTWARE (December 28, 2010)

The Court withdrew this opinion on February 10, 2011 and granted Phoenix’ Petition for Rehearing limited to the sovereign immunity issue. Supplemental briefing and oral argument will focus on:
Whether the district court erred in concluding that plaintiff‐appellee Board of Regents of the University of Wisconsin (Wisconsin) did not waive any sovereign immunity it may have had
to the counterclaims asserted by defendant‐appellant Phoenix International Software (Phoenix),
or otherwise consent to their adjudication in this case?
Whether the counterclaims brought by Phoenix against Wisconsin are compulsory or
permissive counterclaims under FED. R. CIV. P. 13?

Phoenix International Software and the University of Wisconsin each registered the mark CONDOR with the Patent and Trademark Office. Phoenix has used the mark since 1978 and registered it in 1997. Wisconsin registered its mark in 2001. Each mark refers to computer software, although the Phoenix system is designed principally for mainframe systems and the Wisconsin system is designed principally for individual computers. Phoenix petitioned the Trademark Trial and Appeal Board to cancel Wisconsin's mark on the ground that it creates confusion. The Board granted the petition and canceled the mark. Wisconsin challenged the Board's decision by filing an action in federal district court. Phoenix counterclaimed for trademark infringement and false designation of origin. Judge Crabb (W.D. Wis.) reversed the Board’s determination on Wisconsin's motion for summary judgment and also dismissed Phoenix's counterclaims on sovereign immunity grounds. Phoenix appeals.

In their opinion, Seventh Circuit Judges Flaum, Wood (dissenting in part), and Tinder reversed and remanded for trial on the likelihood of confusion issue but affirmed on the sovereign immunity issue. The Court first addressed the likelihood of confusion issue and specifically the standard of review. Wisconsin had two choices to challenge the Board's decision: a direct appeal to the Federal Circuit limited to the record below and decided on a substantial evidence standard, or a new action in the district court allowing it to supplement the record below. Since Wisconsin chose the latter course, the Court's standard of review is layered. The Board's findings are owed typical administrative appeal deference while the new evidence is treated like a typical summary judgment record and viewed in the light most favorable to the non-moving party. That required the Court to distinguish the Board's findings from new evidence below. The Court concluded that the district court erred in reversing the Board. The principal issue in the case is the likelihood of confusion. The Board considered the actual nature and use of the software while the district court focused its analysis on the description of the products in their registration materials. But whether the public may be confused (i.e., attribute the products to a single source) is the real focus of the multiple factor likelihood of confusion test. The district court was wrong when it focused principally on the products' similarities and matters of use (and doubly wrong when it focused exclusively on the written descriptions). On the other hand, the Board was right when it focused on the facts that the marks were identical, their functions were similar, and sophisticated purchasers were likely to believe that their sources were related. The Court reinstated the Board's findings. It considered Wisconsin's new evidence but found it not sufficient to overcome those findings and compel summary judgment in Wisconsin's favor. It therefore remanded for a trial on likelihood of confusion. The Court next considered Phoenix's counterclaims, which the district court dismissed on sovereign immunity grounds. There are two exceptions to the Eleventh Amendment's grant of sovereign immunity. The first is when Congress regulates state behavior pursuant to the Fourteenth Amendment. The second is when a state waives its immunity and consents to suit. The Court noted that the Supreme Court has already found unconstitutional the Patent Remedy Act's creation of state liability for patent infringement in Florida Prepaid. Given the similarities between the two statutes, the Court found the decision controlling. With respect to waiver, the Court first rejected the argument that Wisconsin's participation in the regulated trademark process amounted to waver, again relying on Florida Prepaid. Lastly, the Court addressed and rejected the argument that Wisconsin voluntarily waived its sovereign immunity when it chose to challenge the Court's decision by filing a suit in the district court. The Court distinguished the Supreme Court's Lapides decision, in which Georgia was not allowed to invoke sovereign immunity after it removed a case from state court. Here, Wisconsin's filing simply reflected its choice of a forum for judicial review. It did not alter the nature of the proceedings in any way.

Judge Wood agreed with the majority on the likelihood of confusion with issue and also with respect to whether Wisconsin's participation in a federal regulatory program constituted a waiver of sovereign immunity. She dissented, however, on the issue of whether Wisconsin's district court challenge to the Board’s decision constituted a waiver. The issue is not, she said, whether the state is a defendant, a plaintiff, an intervenor, or an appellant. It is, instead, the voluntariness of the decision and its consequences. Here, Wisconsin chose to file a case. Lapides controls -- Wisconsin has waived sovereign immunity. Wisconsin was not even required to appeal. It could have accepted that the Board's decision. Similarly, it could have appealed to the Federal Circuit, where Phoenix would not have been able to file a counter court. Instead, Wisconsin chose to gain a litigation advantage by filing in the district court. Just like in the Lapides case, Wisconsin was using its sovereign immunity to gain a litigation advantage. Finally, Judge Wood wrote at length suggesting that it may be time to reconsider a "commercial act" exception to the scope of sovereign immunity.

Tags: Opinion by Tinder, Civil Procedure, Constitutional Law, Fourteenth Amendment, Intellectual Property, Opinion (Dissenting In Part) By Wood, Sovereign Immunity, Standard of Review, Summary Judgment, Trademark, Waiver

Section 8 Landlord Has No Property Interest In Program Participation

Posted on January 12, 2011 by Michael Rigney

KAHN v. BLAND (December 23, 2010)

The “Section 8” federal housing subsidy program provides rental assistance to low-income families. Although funded federally, the program is administered by local public housing agencies. Both the beneficiary families and the participating landlords must meet certain qualifications and are governed by a host of regulations. In Champaign County, Illinois, the program is run by the Housing Authority of Champaign County (HACC). In 2003, Latif Kahn, a qualified landlord with a contract with HACC, rented a subsidized apartment to Andrew Washington. At Washington' request, and allegedly with the approval of HACC, Kahn also rented some space in the building's basement to Washington outside the program. After Kahn evicted Washington in for nonpayment of rent, Washington brought the existence of this "side lease" to the HACC's executive director. The director advised Kahn that the lease was a violation of program regulations and that he was terminating Kahn's contracts and barring him from the program. Kahn was never given an opportunity to explain or appeal. The HACC sent a letter to each of Kahn's four tenants and advised them that they would have to move. In fact, however, Kahn’s contract with respect to only one of the tenants was terminated pursuant to the letter. Another contract was terminated when the contracted unit failed to pass an inspection. The other two tenants actually remained. One prospective tenant was denied an opportunity to rent an apartment from Kahn and was told by HACC that Kahn was an "undesired person." Kahn brought suit, alleging procedural and substantive due process claims against the director and a due process claim against HACC. Chief Judge McCuskey (C.D. Ill) granted the defendants' motion for judgment as a matter of law at the close of plaintiff's case. Kahn appeals.

In their opinion, Seventh Circuit Chief Judge Easterbrook and Judges Posner and Tinder affirmed. Both the substantive and procedural due process claims require the identification of a property or liberty interest. The Court concluded that Kahn had not established a property interest from a) his termination from the program, b) the termination of the contracts, or c) disputes regarding the remaining contracts. First, notwithstanding his allegations, the record was clear that he was never terminated from the program. The director made threatening statements but had no authority to bar Kahn from the program and, in fact, Kahn continued to participate in the program. Second, although the HACC did refuse to enter into new contracts with Kahn, nothing in the statute or regulations entitles him to enter into new contracts. Finally, Kahn's rights with respect to his existing contracts do not raise constitutional issues. They simply give rise to possible state breach of contract claims. With respect to a liberty interest, the Court concluded that Kahn forfeited the claim -- but also concluded that the claim would not succeed. The liberty interest recognized by the Fourteenth Amendment protects a person's right to pursue an occupation, but not a specific job. Here, although the defendants' conduct may have affected Kahn 's ability to lease to certain individuals, it did not preclude him from his occupation.

Tags: Opinion by Tinder, Constitutional Law, Federal Statute - Other, Fourteenth Amendment, Liberty Interest, Procedural Due Process, Property Interest, Section 1983, Seventh Circuit Court Of Appeals, Substantive Due Process

Plaintiff Is Entitled Only To Reasonable Inferences On Summary Judgment

Posted on December 29, 2010 by Michael Rigney

SALLENGER v. CITY OF SPRINGFIELD (December 17, 2010)

In early 2002, Andrew Sallenger was living with his mother, his sister, and his sister's four children at his mother's house in Springfield, Illinois. Sallenger suffered from bipolar disorder and schizophrenia. In the middle of the night on April 30, Sallenger experienced a psychotic episode. He was screaming, breaking things, and running around the house naked. His sister called 911. She warned the police of his condition and his strength (6 feet tall, 262 pounds). Three officers responded and eventually, although not without great difficulty, were able to subdue him. They used a hobble, a device that limits movement by strapping one's lower legs to one's hands. A few minutes after the officers subdued Sallenger with a hobble, he stopped breathing. The officers removed the hobble and administered CPR, without success. Sallenger’s Estate brought several claims against the officers and the City, including a § 1983 claim alleging a Fourth Amendment violation for failing to adequately respond to Sallenger’s medical needs and a Monell claim against the City for failure to train in the use of the hobble. They also brought excessive force claims against the three officers. Those claims were tried to a jury and resolved in the officers' favor. Judge Scott (C.D. Ill.) granted summary judgment against the Estate on the medical needs and Monell claims. The Estate appeals.

In their opinion, Seventh Circuit Judges Posner, Rovner, and Sykes affirmed. The Court applied an objective reasonableness standard to the medical needs claim and considered four criteria: the need for medical attention, the severity of the need, the nature of the required treatment, and any police interests. The Estate's case rests on the timing of two police calls and the inferences that can be drawn from them. One call came in at 2:15 a.m. In that call, one of the officers reported that Sallenger was unconscious. The second call, which came in at 2:22 a.m., was from a police lieutenant reporting that he was at the scene. Combined with the fact that the lieutenant was present when efforts to resuscitate began, the Estate argues that it is entitled to an inference that the officers waited seven minutes after knowing Sallenger was unconscious before they tried to resuscitate him. The Court rejected this inference. All inferences must be drawn in the Estate’s favor on summary judgment, but those inferences must be reasonable. Here, the officers and Sallenger's sister all testified that resuscitation efforts began as soon as they knew that he was unconscious. The lieutenant also testified that his call did not necessarily take place immediately upon his arrival. In light of that testimony, and without more support, the inference requested by the Estate is unreasonable. The Court also agreed with the district court's summary judgment ruling on the Monell claim. A municipality cannot be liable unless there is an underlying constitutional violation by an employee. Here, a jury found that none of the officers was liable for a constitutional violation on the excessive force claim and the Court affirmed summary judgment for the officers on the medical needs claim. Therefore, there can be no municipal liability.

Tags: Opinion by Sykes, Monell, Civil Rights, Constitutional Law, Excessive Force, Fourth Amendment, Medical Needs, Municipal Liability, Reasonable Inferences, Section 1983, Seventh Circuit Court Of Appeals, Summary Judgment

Traffic Stop's Constitutional Reasonableness Does Not Depend On Officer's Subjective Motivation

Posted on December 13, 2010 by Michael Rigney

JACKSON v. PARKER (December 3, 2010)

On a spring afternoon in 2006, Wayne Jackson was southbound on Chicago’s Lake Shore Drive ("Urban America's Most Beautiful Roadway") in his pickup truck. Unfortunately, his truck was licensed as a commercial vehicle and therefore prohibited on the Drive. Chicago police officer Joe Parker noticed the plates and also observed Jackson making two illegal lane changes. Parker stopped Jackson's car and then observed a windshield crack, another ordinance violation. He also administered field sobriety tests and a breathalyzer, which he claims Jackson failed. Jackson was released after approximately 12 hours at the police station. Although his arrest report lists DUI, the prosecutor later amended the charge to negligent driving. At trial, Jackson was found guilty of improper lane usage and failing to notify the state of an address change and was found not guilty of negligent driving and driving an unsafe vehicle charges. Jackson brought a § 1983 charge against Parker, claiming a Fourth Amendment false arrest violation. Jackson claimed that Parker falsified the DUI test results. He also presented evidence that Parker regularly reported such false information as part of a scheme to increase his compensation and that he was being internally investigated for his conduct. Judge Conlon (N.D. Ill.) granted summary judgment to Parker, concluding that the unlawful lane change provided sufficient probable cause for the arrest. In the face of that probable cause, Jackson could not prevail whether or not there was probable cause for a DUI arrest. Jackson appeals.

In their opinion, Seventh Circuit Chief Judge Easterbrook and Judges Posner and Tinder affirmed. The Court agreed with the district court and noted that Jackson implicitly agreed as well. Parker had reason to believe that Jackson was violating the law by even being on the roadway in a commercial vehicle. Even though he was never charged with that offense, and even if he had an illicit motivation, the arrest is reasonable. Apparently recognizing that his false arrest claim was not going to survive the appeal, Jackson's counsel reconstituted his argument as a unreasonable detention rather than a false arrest. Unfortunately for Jackson, arguments that are not presented to the district court are normally forfeited on appeal unless the interests of justice require otherwise. The Court concluded that this was not such a case.

Tags: Opinion by Tinder, Civil Rights, Constitutional Law, Fourth Amendment, Reasonableness, Seventh Circuit Court Of Appeals, Waiver

Disputed Facts And Potentially Conflicting Inferences Make Summary Judgment Particularly Inappropriate In Excessive Force Case

Posted on November 11, 2010 by Michael Rigney

CYRUS v. TOWN OF MUKWONAGO (November 10, 2010)

Twenty-nine-year-old Nicholas Cyrus lived with his parents in Mukwonago, Wisconsin. Cyrus suffered from bipolar disorder and had occasional delusional episodes. He was known by the local police in his small community for his unusual behavior but was not considered dangerous. On the evening of July 8, 2006, Cyrus left his parents' home wearing only his bathrobe following a dispute with his mother . He remained missing until early the next morning when a town resident reported to the police that an unknown man wearing only a bathrobe was trespassing on his property. Lt. Czarnecki responded to the call. Czarnecki suspected that the "unknown man" was Cyrus. He knew Cyrus and knew that he had been reported missing the night before. There are slight factual disputes regarding what happened next but, generally, Czarnecki unsuccessfully tried to get Cyrus' attention and cooperation. After Cyrus refused a request to talk and moved toward the house, Czarnecki used his Taser on him. Cyrus fell to the ground. He tried to get up but wobbled and fell. Czarnecki used his Taser again and Cyrus rolled down the driveway. By this time, a second officer had arrived at the scene. The two officers tried to handcuff Cyrus but he was lying on his hands. When the officers could not pry his hands loose, Czarnecki used his Taser several more times. The officers finally got him handcuffed but, when they rolled him over, they discovered he was not breathing. Cyrus died later that day. His parents brought a § 1983 Fourth Amendment excessive force claim against the officers and the municipality. The plaintiffs offered two experts -- one to testify regarding reasonable force and one (the Medical Examiner, who reformed the autopsy) on the cause of death. The Medical Examiner testified at her deposition that many factors contributed to Cyrus' death, including the stress of the struggle, his fear, his mental condition, his physical position, the pain, and the shock. She testified that she could not state that any particular factor was more significant than another. Judge Randa (E.D. Wis.) excluded the testimony of both experts relating to the cause of death, principally because the Medical Examiner could not isolate a primary cause of Cyrus' death. The court then granted summary judgment to the defendants, finding that there were no material disputes of fact and that the Taser use was not excessive force as a matter of law. Plaintiffs appeal.

In their opinion, Circuit Judges Bauer and Sykes and District Judge Simon reversed and remanded. The Court recognized that most of the material facts were undisputed (principally because the victim was dead). However, it rejected the district court's conclusion for two reasons. First, the Court identified several material facts that were in dispute. Czarnecki testified that he used his Taser only five or six times but the Taser's internal register recorded 12 trigger pulls. The parties also disagreed about whether Cyrus walked or ran toward the house. Second, excessive force claims require an analysis of all the circumstances surrounding the use of force. Facts that may not technically be in dispute may be susceptible of different interpretations, making summary judgment appropriate. For example, there were potentially different inferences that a jury could draw from the fact that Cyrus rolled down the driveway. Was it an attempt to escape or merely an involuntary reaction to the shock? Other factors the jury could consider also tended to support the unreasonableness of the force: Cyrus had not committed a serious offense, he did not violently resist the officers, he was not armed, and he suffered from a mental illness. Since a jury could reasonably conclude that Czarnecki's multiple Taser uses constituted unreasonable force, summary judgment was inappropriate. The Court also rejected defendants' alternative position that plaintiffs could not prove causation without the excluded expert testimony. The Court conceded that proof of causation will be more difficult without the Medical Examiner's testimony. However, it found that the record was not totally devoid of evidence upon which a jury could conclude that the force caused Cyrus's death. Expert testimony is not necessary if the facts relied on are such that lay persons can understand them and draw appropriate conclusions from them. Here, Cyrus stopped breathing shortly after receiving the shocks, there is no evidence of a prior injury or condition, the toxicology report showed the absence of drugs, and there is no evidence of an intervening cause. On this record, the Court concluded that a jury could find causation.

Tags: Opinion by Sykes, Causation, Civil Procedure, Civil Rights, Constitutional Law, Evidence, Expert Testimony, Summary Judgment

Prison Litigation Reform Act's Exhaustion Requirement Is Not Excused When Emergency Grievance Procedure Is Available

Posted on October 29, 2010 by Michael Rigney

FLETCHER v. MENARD CORRECTIONAL CENTER (October 28, 2010)

Anthony Fletcher is an inmate at Menard Correctional Center in Illinois. He claims that prison guards used excessive force while they were transferring him to a new cell. He further claims that he suffered significant injuries and that he was denied medical treatment for those injuries and for his asthma and diabetes. He brought suit asserting those constitutional violations and attempted to proceed in forma pauperis. Unfortunately, he had three "strikes" (prior frivolous suits) and thus could not proceed in forma pauperis without relying on the "under imminent danger of serious physical injury" exception. Even more unfortunately, his judge had presided over one of those earlier "strikes" in which Fletcher alleged a failure to treat his asthma and diabetes. Fletcher's medical records in that case showed that he did not have asthma or diabetes. Judge Baker (C.D. Ill.) ruled that he therefore did not come within the exception and dismissed his complaint. Fletcher appeals.

In their opinion, Judges Bauer, Posner, and Wood affirmed. Although the Court affirmed the dismissal, it did so on different grounds. On the imminent danger exception to the three strike rule, the Court concluded that the district court erred. Although Fletcher did not have asthma or diabetes, the district court did not consider his additional allegation that he was denied treatment for injuries suffered from the excessive force. Untreated injuries could pose as much a threat as untreated illnesses and could qualify as an “imminent danger.” Nevertheless, the Court found an alternative ground to affirm the dismissal. The Prison Litigation Reform Act requires a prisoner to exhaust administrative remedies before bringing suit. The Court imagined a scenario in which a prisoner would not be required to exhaust administrative remedies -- if he is in imminent danger and no administrative remedy is available to avert that danger. Here, however, Illinois has an emergency procedure under which a grievance is directed immediately to the warden. Fletcher took advantage of that procedure but waited only two days before filing his suit. Under these circumstances, the Court concluded that he was not excused from the exhaustion requirement of the Act.

Tags: Opinion by Posner, Civil Rights, Constitutional Law, Exhaustion of Administrative Remedies, Imminent Danger Exception, Prison Litigation Reform Act

Plaintiff Lacked Evidence Of Officer's Misstatement To Magistrate In Support Of Warrant

Posted on October 28, 2010 by Michael Rigney

PARKEY v. SAMPLE (October 27, 2010)

Indiana State Trooper Jason Sample was the Marijuana Eradication Coordinator in his northeastern Indiana police district. He was quite knowledgeable about marijuana, its use, and its growth. In early 2005, several things raised his suspicion about the activities of Hammond resident James Parkey: a) the DEA told him that Parkey received shipments from a company known to sell marijuana growing supplies, b) Parkey had a criminal record, and c) Parkey's basement windows were covered. Based on this suspicion, Sample inspected the trash containers behind Parkey's residence on two occasions. On each occasions, he discovered marijuana stems, marijuana cigarette remnants, and discarded mail addressed to Parkey. Sample obtained a search warrant based on the DEA tip, the trash inspection results, and Parkey's criminal record. The search resulted in the seizure of 10 marijuana plants. Although charges were filed against Parkey, they were later dismissed. Parkey filed suit pursuant to § 1983, alleging a violation of his Fourth Amendment right against unreasonable search and seizure. Judge Lee (N.D. Ind.) granted summary judgment to Sample. Parkey appeals.

In their opinion, Judges Posner, Kanne, and Sykes affirmed. Parkey principally attacks the veracity of the affidavit. But, the Court stated, there is a presumption of validity that attaches to the affidavit. In order to avoid summary judgment on that issue, Parkey must have evidence that Sample made misstatements "knowingly or intentionally or with a reckless disregard for the truth." He must also show that the misstatements were necessary to the determination of probable cause. The Court concluded that he did neither. Parkey does not contest the Sample received a tip from the DEA and that he found the stems and remnants in his trash. Instead, he asserts that Sample failed to prove that the remnants were his or that Sample researched his criminal history. Attacking the lack of evidence supporting a warrant affidavit is not sufficient to defeat summary judgment. The Court added that Parkey loses even if Sample misrepresented Parkey’s criminal record. The criminal record was not necessary to the finding of probable cause.

Tags: Opinion by Kanne, Affidavit, Constitutional Law, Fourth Amendment, Search Warrant, Unreasonable Search, Unreasonable Seizure

Illinois' Mandatory "Period Of Silence" Is Constitutional

Posted on October 18, 2010 by Michael Rigney

SHERMAN v. KOCH (October 15, 2010)

In 1969, the Illinois legislature authorized, but did not require, public school teachers to "observe a brief period of silence" to be used as "an opportunity for silent prayer or for silent reflection." The legislature added a section to the act in 2002 declaring a student's right to exercise religion freely and to be free from State pressure regarding the exercise or non-exercise of religion. In 2007, the legislature made the brief period of silence mandatory. Dawn Sherman, a public high school student, brought suit through her father under § 1983. She brought a facial challenge under both the First and Fourteenth Amendments. Judge Gettleman (N.D. Ill.) granted a preliminary injunction, certified a plaintiff class of state public school students, certified a defendant class of state public school districts, granted summary judgment to the plaintiff class, and permanently enjoined the statute’s implementation. He concluded that the statute violated the First Amendment in that it failed the first two prongs of the Lemon test (it had no secular purpose and its primary effect was to advance religion). He also concluded that the statute was unconstitutionally vague under the Fourteenth Amendment. The defendants appeal.

In their opinion, Judges Ripple, Manion, and Williams (dissenting) reversed. The Court briefly addressed and rejected the argument that Sherman lacked standing because she suffered no damage (since she was only subjected to silence). Sherman alleged that the practice violates the First Amendment. Her status as a student is enough for standing. On the merits, the Court applied the Lemon test. Under Lemon, a statute: a) must have a secular legislative purpose, b) must not primarily advance or inhibit religion, and c) must "not foster an excessive government entanglement with religion." The Court first concluded that the statute had a secular legislative purpose under the first Lemon prong. It relied on the plain meaning of the statute, its context, its legislative history, and the events leading to its passage. It concluded that each of those factors supported the articulated legislative purpose of providing a moment of silence at the beginning of a school day in order to calm the students. The record was very different from the record in Wallace, in which the Supreme Court held that Alabama's similar statute lacked any secular purpose. In fact, the Court found support for its view in the Wallace concurring opinions of Justices O'Connor and Powell. With respect to the second Lemon prong, the Court concluded that the statute's primary effect was not to advance or inhibit religion. The Court relied principally on the statute's language. The statute expressly provided that the brief period of silence could not be conducted as a religious exercise -- and thus did not advance religion. It also expressly provided that the moment of silence was an opportunity for prayer or silent reflection -- and thus did not inhibit religion. Since no one raised the third Lemon prong, the Court concluded that the statute met the test and did not violate the Establishment Clause. The Court briefly considered the facial Fourteenth Amendment vagueness challenge. The Due Process Clause does not require perfection and precision, particularly where criminal penalties are not at issue and particularly in a school setting. Although the statute does not provide any details regarding the moment of silence’s logistics, testimony in the record indicates that school districts are quite capable of providing that detail. The facial challenge fails.

Judge Williams dissented from the panel's opinion with respect to the First Amendment challenge. Her view can be gleaned from one sentence in her opinion: ([L]et’s call a spade a state -- statutes like these are about prayer in schools." Notwithstanding the deference that should be shown to the legislature's stated purpose and the fact that there are statements of secular purpose in the record, Judge Williams believed they were pretextual. She relied principally on two things: the specific reference to prayer and the inclusion of prayer as one of (and the first of) two available alternatives for the moment of silence. She believed that the statute endorsed religion and thereby violated the Establishment clause.

Tags: Opinion by Manion, ""Secular, Lemon Test, Constitutional Law, Due Process, Establishment Clause, First Amendment, Fourteenth Amendment, Opinion (Dissenting) By Williams, Purpose", School Prayer

Employee Who Trades Away Due Process Protections Cannot Then Claim A Deprivation

Posted on October 12, 2010 by Michael Rigney

PALKA v. SHELTON (October 7, 2010)

Peter Palka's hopes of becoming a Chicago police officer were dashed when he was kicked out of the Police Academy. His father Tadeusz, a 28-year veteran of the Cook County Sheriff's Department, thought the termination was discriminatory and based on the fact that Peter was Polish. The elder Palka tried to convince Matthew Tobias, the official in charge of the Academy, to reinstate his son. Tobias assured Palka that Peter was terminated for cause and refused to reverse the decision. A few months later, the receptionist at his children’s school advised Tobias that an unidentified man with a Polish accent called and asked questions about the children. Tobias suspected Palka and began an investigation. Phone records revealed that someone in the Cook County Building at 69 W. Washington in Chicago had placed a call to the school on the afternoon in question. Tobias was now convinced -- he reported the call to the local police, he opened an incident report and checked Palka for outstanding warrants, he asked senior officers to speak with Palka, and he filed a formal complaint with the Sheriff's Department's Office of Internal Affairs. Palka was suspended with pay. Shortly before a formal disciplinary hearing that would decide his fate, the Department offered Palka full retirement benefits (including badge and firearm credentials) if he resigned. He did resign, but never received his credentials. Palka filed suit pursuant to § 1983, alleging procedural and substantive due process violations, occupational liberty deprivations, and Monell claims. Judge Kendall (N.D. Ill.) dismissed the complaint with prejudice. Palka appeals.

In their opinion, Judges Ripple, Kanne, and Sykes affirmed. The Court rejected each of Palka’s contentions in turn. First, the procedural due process claim relating to his suspension fails because a suspension with pay does not trigger due process protection unless there is a claim of indirect economic consequences. Palka makes no such allegation. Second, the procedural due process claim relating to his resignation also fails. Palka was simply given a choice to avail himself of the procedural protections offered by the Merit Board (and risk losing everything) or to resign with retirement benefits. He was not deprived of due process protections -- he traded them away. Third, the substantive due process claim fails. Public employment termination does not give rise to a substantive due process claim unless it is accompanied by an allegation of other constitutional violations or inadequate state remedies, neither of which is present here. To the extent that Palka relied on police misconduct to support the substantive due process claim, the Court stated that it did not meet the high “shocks the conscience” threshold. Fourth, the occupational liberty claim fails. Palka failed to allege public disclosure an essential element of the claim. The County's failure to grant him badge and firearm credentials, on which Palka bases this claim, was not publicly disclosed nor does Palka allege that any potential future employer learned of it. Finally, because there is no constitutional violation, there can be no Monell liability.

Tags: Opinion by Sykes, Monell, Civil Rights, Constitutional Law, Occupational Liberty, Procedural Due Process, Substantive Due Process

Acts Outside The Bounds Of Granted Authority Are Not "Under Color Of State Law"

Posted on October 11, 2010 by Michael Rigney

WILSON v. PRICE (October 4, 2010)

Midnight Auto Express is a car repair business located in Aldermen Keith Price's Sixth Ward in Harvey, Illinois. Midnight apparently had a number of cars parked illegally in front of its shop on May 2, 2008 because Price received a number of complaints from his constituents. Price unsuccessfully tried to get the City to remove the cars. Undaunted, he paid a personal visit to the shop and spoke with Christopher Wilson, a mechanic. Wilson refused Price's demand to move the cars and also refused to contact the owner. Instead, he walked away. Price attacked Wilson, leaving him unconscious. Wilson and his wife brought suit against Price and Harvey, alleging claims under and state law. Judge Hibbler (N.D. Ill.) dismissed the § 1983 claim on the ground that Price had not acted under color of state law and declined to exercise jurisdiction over the state claims. The Wilsons appeal.

In their opinion, Judges Ripple, Manion, and Williams affirmed. The only issue on appeal was whether Price was acting under color of state law. The Court noted that the fact that he is a government official is not enough. An act is under color of state law when it is a misuse of the power the actor has been granted by state law. In other words, it must be related to the performance of his official duties. The Court noted that Price's aldermanic duties are purely legislative. As such, they involve enacting legislation and related legislative investigation. The Court analyzed his conduct to determine whether the required relationship existed. Of course, none of his activities that day related to the passage of legislation. He could, however, have visited the repair shop as part of his legislative investigation role. Even if that is so, however, the Court concluded that he crossed over into a law enforcement role once he ordered the cars moved. Since Price had no enforcement authority, his actions were not related to his official duties – and not under color of state law. The altercation was one between private citizens and does not support a § 1983 action.

Tags: Opinion by Williams, Civil Rights, Constitutional Law, Section 1983, Under Color Of State Law

City's "Evidence" Is Still Insufficient Support For Adult Bookstore Ordinance

Posted on October 11, 2010 by Michael Rigney

ANNEX BOOKS, INC. v. CITY OF INDIANAPOLIS (October 1, 2010)

The City of Indianapolis passed an ordinance that restricted adult bookstores’ hours of operation. After the district court rejected a challenge to the ordinance, the Seventh Circuit reversed and remanded (the opinion and intheiropinion). The Court concluded that the evidentiary record did not satisfy intermediate scrutiny. The record evidence it related to the dispersal of adult businesses offering live entertainment -- instead of relating to hours restrictions on businesses not offering live entertainment. On remand, the City offered one additional piece of evidence at a preliminary injunction hearing. It was a study that concluded that Sioux City, Iowa saw a reduction in crime after it dispersed adult businesses. Judge Barker (S.D. Ind.) denied the injunction. The City appeals.

In their opinion, Chief Judge Easterbrook and Judges Flaum and Rovner affirmed. The Court found several flaws in the City's position. First, the study, like the earlier evidence, related to a dispersal ordinance, not a restricted-hours ordinance. Second, the study did not control for any other variables (like bars opening or closing, for example). Third, more police protection for adult business patrons is preferable to closing them. Given the state of the record, the Court concluded that the district court did not abuse its discretion in denying the injunction.

Tags: Opinion per curiam, Constitutional Law, Evidence, First Amendment, Intermediate Scrutiny, preliminary injunction

Due Process Challenge To Chicago Police's Property Recovery Notice And Procedures Gets New Life

Posted on October 6, 2010 by Michael Rigney

GATES v. CITY OF CHICAGO (September 27, 2010)

Chicago police arrested Luster Nelson in February of 2004 on a narcotics charge -- and seized the $59 in cash that he had on his person at the time. Chicago police arrested Elton Gates in January of 2003 on a non-narcotics charge -- and seized the $113 in cash that he had on his person at the time. Gates and Nelson were each given a property inventory receipt that included instructions for the return of their property. Gates ultimately pled guilty and unsuccessfully sought the return of his $113. The charges against Nelson were dismissed. He also was unsuccessful in his attempt to retrieve his $59. Gates and Nelson brought a class action suit against the City and various individuals. They alleged due process violations in that the City: seized their property and kept it without instituting a forfeiture proceeding, misrepresented when their property would be available, kept their property after the conclusion of criminal proceedings, and maintained a policy designed to delay the return of property. They sought the return of their cash, damages, and attorney's fees. They also included state law claims for conversion, replevin, and unjust enrichment, among others. Shortly after they filed suit, the City sent each a check in the full amount of his alleged property loss and offered to pay interest. The plaintiffs returned the checks. The court certified two classes of individuals (one for narcotics arrestees, one for non-narcotics arrestees) who had had property taken from them during a particular period, whose criminal cases had been resolved, and who had not been able to recover their property. The Seventh Circuit affirmed the class certification. Judge Castillo (N.D. Ill.), on remand, granted summary judgment to the City on the federal claims, refused to certify a class on the state restitution claims, and dismissed those claims as moot. The plaintiffs appeal.

In their opinion, Judges Kanne, Rovner, and Wood affirmed in part and vacated and remanded in part. The Court first turned to the sufficiency of the notice. It looked to the Supreme Court decisions in West Covina and Memphis Light for guidance. In West Covina, the Supreme Court upheld a notice that did not give many specifics about the procedure for obtaining the return of one's property but the procedures were generally available in public sources. Conversely, in Memphis Light, the Supreme Court held that a public utility must give its customers notice of its internal procedure for resolving billing disputes because the procedure was not otherwise publicly available. Here, part of the procedure for property recovery is contained in Illinois statutes and is publicly available. However, the record shows that the police also use internal procedures that are not described in generally available documents. The Court concluded that the notice provided to the plaintiffs did not satisfy Memphis Light and violated due process. The Court referred to the City's instructions as a "model of misdirection" and concluded that summary judgment for the City was premature. The narcotics arrestee class also challenges the additional notice that is sent to the home of narcotics arrestees. Their position is that the City should check the sheriff's website to determine if the arrestee is incarcerated, either before sending the notice or at least upon return of an undelivered notice. A notice, under due process, must be reasonably calculated to inform interested parties. Generally, a notice mailed to the interested party's residence is sufficient -- unless, of course, there is reason to know it would be ineffective. The Court concluded that summary judgment for the City was premature with respect to the narcotics notice. The extra notice to narcotics arrestees is not just a notice -- it is a document required to recover property. The record is not clear regarding the burden on the City to check the website, either for all notices or for those returned undelivered. The City failed to meet its burden that the mailing of the notice meets the Mullane standard.

The Court moved to the consideration of the adequacy of the procedures themselves. Again, the Court concluded that summary judgment for the City was error. First, it identified a number of factual disputes regarding the actual procedure. Second, it discussed a series of Second Circuit cases (McLendon, Butler, and Alexandre) to clarify the difference between having procedures for the return of property and having remedies if the procedures fail. A post-deprivation remedy is not a defense to a § 1983 action if the deprivation is a result of established procedures. Here, the arrestees were apparently required to obtain an arresting officer's signature on a form, and the officer could refuse arbitrarily. This does not comply with due process requirements – and cannot be corrected with a simple post-deprivation remedy. As an aside, the Court noted that the significant amount of money and number of arrestees unable to reclaim their property are indications that the policy is suspect. Finally, the Court affirmed the district court's dismissal of the restitution claims. Those claims sought nothing more than a return of the plaintiff's property. The City's tender of the full amount of the claim is sufficient to make the plaintiff whole.

Tags: Opinion by Rovner, Civil Rights, Class Actions, Constitutional Law, Due Process, Notice, Post-Deprivation Remedies, Section 1983

Federal Court Has The Power To Correct Constitutional Error Caused By State's Inaction

Posted on October 5, 2010 by Michael Rigney

JUDGE v. QUINN (September 24, 2010)

Barack Obama created a vacancy in the United States Senate when he resigned his seat in November of 2008. Apparently, he got a better job. Illinois’ governor appointed Roland Burris to serve the remaining years of his term. Two Illinois voters brought suit, alleging that Illinois violated the Seventeenth Amendment by failing to hold a popular election. In a June 16, 2010 opinion (opinion and intheiropinion), the Seventh Circuit affirmed the denial of a preliminary injunction. The Court held that the plaintiffs had shown a strong likelihood of success on the merits (that the Seventeenth Amendment requires an election to fill any Senate vacancy) but had failed to show irreparable harm, since there was still adequate time to hold the election. The district court then held a series of hearings, during which Illinois ultimately agreed to hold the election (after the Court denied a rehearing and rehearing en banc). The State put forth a proposal, agreed to by the plaintiffs, under which the special election would be held the same day as the already-scheduled general election for the same seat -- and the candidates on the special election ballot would be those same candidates as on the general election ballot. Senator Burris, whose name will not be on the general election ballot, objected. He wanted his name included on the special election ballot, either by collecting some designated number of signatures or simply by agreement. Judge Grady (N.D. Ill.) adopted the State's proposal. The governor issued a writ of election and the court issued its preliminary injunction. Senator Burris appeals.

In their opinion, Judges Rovner, Wood, and Tinder affirmed. The Court first turned to Burris' argument that the case presented a nonjusticiable political question. Only two of the Baker factors were relevant, said the Court, and it resolved both against Burris. First, there was not a "lack of judicially discoverable and manageable standards." The Seventeenth Amendment, state law, and past Illinois history provided the rules and standards. Second, the question is not within the exclusive province of the political branch. When constitutional rights are infringed by the inaction of a state, a federal court has the power to hear the case and fashion a remedy. The Court next addressed Burris' argument that the court interfered with the role of the Illinois General Assembly when it decided whose names would appear on the special election ballot. The Court held that Burris waived this argument by not raising it below -- but also concluded that, although the states have principal responsibility for controlling the procedural aspects of these elections, a district court has the power to fashion a remedy for a constitutional violation. Finally, the Court rejected the notion that the district court order was an unconstitutional ballot access restriction. There is nothing in the order that excludes a particular class of candidates and the order is narrowly tailored to affect only one election.

Tags: Opinion by Wood, Constitutional Law, Elections, Injunctive Relief, Nonjusticiable Political Question, Seventeenth Amendment

Prison's Practice Of Opening Prisoners' Non-Sensitive Communications Does Not Violate The Constitution

Posted on October 1, 2010 by Michael Rigney

GUAJARDO-PALMA v. MARTINSON (September 20, 2010)

Cesar Guajardo-Palma is a prisoner in a Wisconsin facility. He brought suit alleging that his constitutional rights were violated when prison employees opened nine pieces of his incoming mail outside of his presence. None of the mail was from his lawyer. One document was from the district court and was a matter of public record. The others were from federal and state agencies and, though not public documents, were not particularly sensitive. Judge Crabb (W.D. Wis.) dismissed the complaint for failure to state a claim. Guajardo-Palma appeals.

In their opinion, Chief Judge Easterbrook and Judges Posner and Hamilton affirmed. The Court engaged in a lengthy analysis of the jurisprudence in this area, including such topics as the interception of a letter from a lawyer, the interception of a letter to a lawyer, whether the analysis is properly a First Amendment analysis or a right of access to the courts analysis (the "more straightforward" approach) or the right to a fair hearing, the Sixth Amendment issues that arise if the prisoner is a criminal defendant, the accommodation required between a prisoner's interest in confidentiality and the prison's interest in security, whether an unjustified interception of legal mail is a violation or simply a potential violation that requires a showing of hindrance, the appropriate remedy for a violation, and the fact that such a violation would be subject to a harmless error analysis. The Court then put its imprimatur on an approach described in Wolff -- the prison official should be allowed to open, in the prisoner's presence, mail that purports to be from the prisoner's lawyer to ensure that it is what it purports to be. Of course, the actual communications at issue in the case were not to or from a lawyer. The prisoner had not asserted any interference with his rights to pursue his litigation nor had he claimed to be intimidated. The Court concluded that the prison's practice of opening communications that are not sensitive and not likely to provide insights into a legal strategy is harmless and not a constitutional violation.

Tags: Civil Rights, Constitutional Law

Internet Cigarette Seller's Voluntary Contacts With Illinois Permits Personal Jurisdiction

Posted on September 30, 2010 by Michael Rigney

ILLINOIS v. HEMI GROUP (September 14, 2010)

Hemi Group is located in New Mexico but sells cigarettes throughout the United States (except New York - maybe this is why) through several interactive websites as well as by phone, mail, and fax. Hemi pays the federal tax on the cigarettes it sells but it directs its customers to investigate their own state tax liability. Hemi is not registered to do business in Illinois, has no offices or employees in Illinois, and does not advertise in print media in Illinois. An Illinois Department of Revenue agent purchased hundreds of packs of cigarettes from Hemi in 2005 and 2007. Illinois brought suit in state court against Hemi, alleging numerous violations of law. After removing the case to federal court, Hemi moved to dismiss for lack of personal jurisdiction. Judge Scott (C.D. Ill.) denied the motion. Hemi appeals.

In their opinion, Judges Bauer, Kanne, and Evans affirmed. The Court briefly considered, but rejected, the argument that the Illinois Constitution is more restrictive than the federal constitution in its personal jurisdiction requirements. The Court therefore conducted its analysis with respect to the due process clause of the federal constitution. Since Hemi does not have general, systematic business contacts in Illinois, the Court considered only specific jurisdiction and found that it existed. First, Hemi's contacts with Illinois satisfy due process: a) Illinois customers could buy cigarettes on their many interactive websites, b) they held themselves out as ready to do business in Illinois , c) their refusal to sell to New York residents showed that they were aware of the ramifications of selling into a particular state, and d) they shipped cigarettes into Illinois. The Court emphasized that it was not using the Zippo sliding scale approach that other circuits have adopted for Internet jurisdiction cases. Second, the relatedness requirement for specific jurisdiction is satisfied -- the claims arise out of Hemi's contacts. Finally, the exercise of jurisdiction here "does not offend traditional notions of fair play and substantial justice." Hemi set up a nationwide, online commercial venture. It wanted to do business nationwide and has customers throughout the nation. The Court cautioned against exercising jurisdiction over a company simply because it has an interactive website accessible in the forum state. Here, additional voluntary contacts with the state make the exercise of jurisdiction permissible.

Tags: Opinion by Kanne, Constitutional Law, Due Process, Illinois Constitution, Jurisdiction, Minimum Contacts, Personal Jurisdiction

Consent Order's Goal Of Increasing African-American Promotions Did Not Require Race-Based Decisions

Posted on September 28, 2010 by Michael Rigney

FINCH v. PETERSON (September 10, 2010)

In 1978, the Indianapolis Police Department and the United States Department of Justice entered into a consent decree designed to correct racial discrimination in the Department. The long-range goal of the decree was to increase the number of African-Americans to the point where it reflected the racial composition of the workforce in the city. In part, it provided that assignments, transfers, and promotions were to be based on appropriate criteria without regard to race. Now fast forward almost 30 years to 2006. That year, the Department promoted 11 lieutenants to captain. To prepare for the promotions, the Department screened, tested, and ranked each applicant. Instead of promoting the highest-ranked applicants, however, the Department promoted three African-Americans who ranked as low as 26th. Three white applicants, all of whom ranked in the top 10, brought suit pursuant to Title VII, § 1981, and § 1983. Magistrate Judge Lynch (S.D. Ind.) rejected the individual defendants' argument that they were entitled to qualified immunity because their actions were required by the consent decree and denied their motion for judgment on the pleadings. The defendants appeal.

In their opinion, Judges Flaum, Williams, and Sykes affirmed. The Court first confirmed its jurisdiction under the collateral-order doctrine. Even in the absence of a final judgment, a decision denying qualified immunity on an issue of law is immediately appealable. On the merits, the Court recited the familiar two questions raised by a qualified immunity analysis -- was a constitutional right violated and was the right sufficiently well-established to put the defendants on notice. The Court rejected the defendants' only argument that their race-based promotion decisions did not violate the Constitution -- that is, that the consent decree required them. Although it conceded that the consent order had general goals of increasing the number of African-American captains, the Court pointed to the several, very specific provisions of the order requiring race-neutral decisions. Other provisions of the consent decree (e.g., requiring sufficient African-American representation in an applicant pool) were designed to allow the department to reach its general goal without engaging in race-based promotions. The Court also rejected the defendants' only argument with respect to the "sufficiently well-established" prong because it also relied on the premise that the consent order required them to promote the African-Americans.

Tags: Opinion by Sykes, Civil Rights Act of 1964, Consent Decree, Constitutional Law, Labor & Employment, Qualified Immunity, Race Discrimination, Section 1981, Section 1983, Title VII

Activities Funded By Mandatory Bar Dues Are Permissible Only If Germane To Association's Constitutionally Legitimate Purposes

Posted on September 28, 2010 by Michael Rigney

KINGSTAD v. STATE BAR OF WISCONSIN (September 9, 2010)

Any person who wants to practice law in Wisconsin must join the Wisconsin State Bar and pay the compulsory dues it charges its members. Pursuant to Wisconsin Supreme Court rule, the Bar may fund activities that are related to its purposes but may not fund “political or ideological activities that are not reasonably intended for the purpose of regulating the legal profession or improving the quality of legal services.” In 2007, the State Bar proposed to use compulsory dues for a public image campaign. Several members objected. An arbitrator ruled in the Bar's favor. On appeal, Magistrate Judge Crocker upheld the finding. The objectors appeal.

In their opinion, Judges Bauer, Rovner, and Hamilton affirmed. The First Amendment is implicated when a state requires its attorneys to join a group and to provide financial support for that group. The Supreme Court has concluded that some mandatory associations are permissible because they serve legitimate governmental purposes. Mandatory state bars are such associations. There are limits, however, to the types of activities that can be funded by compulsory dues. The Court referred to its 1996 decision in Thiel. In that case, the Court found constitutional a Wisconsin rule that permitted the funding of non-political and non-ideological activities even if they were not germane to the “constitutional purposes” (that is, the purposes that justify the association’s existence under the First Amendment) of the association. In an alternative holding, the Court concluded that the activities at issue were germane to those purposes. Since Thiel, however, the Supreme Court has decided United Foods and the First Circuit has decided Romero. In United Foods, the Supreme Court held that mandatory support for an agricultural collective's generic advertising violated the First Amendment. Although the speech was not political or ideological, the Supreme Court concluded that it was not related to an otherwise proper goal that justified the collective’s existence. Likewise, in Romero, the First Circuit held that a bar association's mandatory life insurance plan violated the First Amendment. The court concluded that mandatory dues are permissible only for activities that were germane to the purposes that justified the association. In light of United Foods and Romero, the Court overruled one of the alternative holding in Thiel and concluded that the State Bar's mandatory dues must be reasonably related to one of its dual constitutional purposes -- regulating the profession or improving the quality of legal services. In applying that standard to the activities in question, the Court adopted a deferential, "reasonably related," standard of review. The Court concluded that the public image campaign expenditures were germane to improving the quality of legal services. The campaign was meant to improve lawyers' public image, which could lead to better client relationships, which could lead to higher-quality services.

Because the panel opinion overruled one of the alternative holdings of Thiel, it was circulated among active service judges. Although no judge favored rehearing en banc on that issue, Judge Sykes favored rehearing on the panel's application of the standard to the activities in question. She wrote separately, dissenting from the denial of rehearing en banc. She called the panel's approach "procedurally questionable" and "substantively flawed." With respect to procedure, Judge Sykes noted that the arbitrator never ruled on "germaneness" and that there is very little in the record on that issue. She suggested the remand requested by the objectors might be appropriate. With respect to substance, she took exception to the panel's conclusion that the campaign was germane. Not only was there no support in the record for that conclusion, what little there was in the record supported the opposite conclusion. The campaign was about marketing and in the interests of the lawyers, not the public.

Tags: Opinion By Hamilton, Association", Constitutional Law, First Amendment, Free, Free Speech

Notice Of "Rule To Show Cause" Hearing Is Insufficient For An Actual Contempt Finding At That Hearing

Posted on September 23, 2010 by Michael Rigney

UNITED STATES SECURITIES AND EXCHANGE COMMISSION v. HYATT (September 3, 2010)

In June and August of 2008, the SEC issued two third-party subpoenas to Brian Hollnagel and BCI Aircraft Leasing (BCI) in connection with other federal litigation. Over several weeks, BCI produced a significant amount of material. The SEC found problems with each production and requested additional information. The SEC ultimately became frustrated with what it believed to be inadequate compliance. On August 28, it filed a motion for a rule to show cause why BCI should not be held in contempt. The notice of motion indicated that the SEC would appear in court on September 3 and "seek a hearing date" on its motion. On September 3, BCI did not appear and the SEC asked the court to order a complete and proper production, to hold BCI in contempt, and to award attorney's fees. The court did so. It then issued two orders. The first indicated that the matter was continued to September 10 and asked for BCI's response to the motion by September 5. The second order was prepared by the SEC -- it held BCI in contempt, it ordered a full and complete production by September 5, it imposed a $1000 per day fine for noncompliance, and it awarded attorneys fees. The court vacated its first order the following day. Although BCI filed a substantive response, the court struck it as moot. Eventually, Judge Lindberg (N.D. Ill.) found that BCI had substantially complied with the subpoenas and rescinded the fine. He did not, however, vacate the contempt finding or the award of fees. BCI appeals.

In their opinion, Circuit Judges Posner and Sykes and District Judge Van Bokkelen vacated the contempt order. The Court first rejected BCI's argument that the subpoenas, which were issued by the SEC attorney, were not court orders and could not therefore be the basis for a contempt finding. Rule 45 of the Federal Rules of Civil Procedure is on point. Rule 45(e) specifically states that a court may hold a person in contempt for failure to comply with a subpoena and does not distinguish between a subpoena issued by a court or one prepared by an attorney. The Advisory Committee Notes make the point even more clearly. The notes, however, also make it clear that a court's contempt power should be used more sparingly and with greater attention to the non-party's rights when the subpoena is issued by an attorney. Although BCI did not exercise its rights to object to or move to quash the subpoenas, it was certainly entitled to adequate notice of an attempt to hold it in contempt. At a minimum, the SEC was required to give notice of the place and time for a hearing. Here, the Court noted that the SEC could have simply moved for a finding of contempt and provided notice to BCI of the time and place when it would appear on its motion. But it did not. Instead it used the obsolete and unnecessary “motion for rule to show cause” procedure. Under that procedure, the first appearance of the parties seeks only a preliminary order directing the alleged contemnor to "show cause" why it should not be held in contempt. The Court concluded that the SEC, having chosen to proceed in a certain manner, should be held to the traditional practice associated with that procedure. BCI did not have adequate notice that a hearing on contempt was to be held on September 3.

Tags: Opinion by Sykes, Civil Procedure, Constitutional Law, Contempt, Due Process, FRCP Rule 45(e), Notice, Rule To Show Cause

Officer's Mere Physical Contact Is Not Always A "Seizure"

Posted on September 22, 2010 by Michael Rigney

CARLSON v. BUKOVIC (September 2, 2010)

June Carlson and her adult handicapped son Paul were shopping at their local Walmart store when Paul scratched himself on a fire hose box. They reported the incident to store personnel and were in the process of completing some forms when things got heated. The store manager eventually felt threatened and the police were called. Officer Bukovic interviewed the manager and the Carlsons. June Carlson, a woman in her 80s, became very upset, raised her voice, and accused the manager of lying -- but refused to cooperate with the Officer's interview. The manager told Officer Bukovic that he wanted Ms. Carlson to leave the store. After Ms. Carlson refused several requests to leave, Officer Bukovic gently placed his hands on her arm to guide her out. She began screaming and flailing about. Eventually, she calmed down and left the store -- and sued. She asserted a § 1983 Monell claim against the City of Darien and a Fourth Amendment excessive force claim against Bukovic. Magistrate Judge Nolan (N.D. Ill.) granted the City's summary judgment motion on the Monell claim. The excessive force claim was tried to a jury, which found that no “seizure” had occured. Carlson appeals.

In their opinion, Judges Ripple, Manion, and Sykes affirmed. The principal issue before the Court was Carlson's argument that the mere touching by Bukovic was a seizure as a matter of law and "per se" unreasonable. The Court rejected the argument. The Fourth Amendment inquiry has two prongs -- whether there was a seizure and, if so, whether it was unreasonable. There are a number of factors that go into the "totality of the circumstances" test to determine whether there was a seizure. Physical contact is one of those factors. But so are the number of officers, the display of a weapon, and the tone of voice. The Supreme Court has held that the purpose of the contact is relevant in physical contact cases. The mere fact that there is a touching or physical contact does not automatically create a seizure. The Court concluded that the district court properly submitted the question to the jury. Given the Court's disposition of the excessive force claim, it also rejected Carlson’s appeal of the Monell claim. There can be no municipal Monell liability without an underlying constitutional violation.

Tags: Opinion by Ripple, Civil Rights, Constitutional Law, Excessive Force, Fourth Amendment, Seizure, Unreasonable Seizure

Plaintiffs Lack Standing To Seek To Enjoin City Ordinance Enforcement

Posted on September 22, 2010 by Michael Rigney

GOLDHAMER v. NAGODE (September 2, 2010)

Don Goldhamer and Robin Schirmer participated in a peaceful demonstration near a military recruitment booth during the Taste of Chicago festival in the summer of 2006. They expressed their opposition to military recruitment by handing out fliers and speaking to passers-by. The police asked them to relocate to a designated area. When they refused, the police ordered them to leave. Again they refused. They were arrested and charged with a city ordinance violation. The ordinance makes it unlawful to fail to disperse when ordered to do so -- but only in a situation where "three or more persons are committing acts of disorderly conduct in the immediate vicinity, which acts are likely to cause substantial harm.” A state court ultimately dismissed the charges for failure to prosecute. Goldhamer and Schirmer brought suit under § 1983, alleging that the ordinance was facially invalid under the First Amendment and that it was unconstitutionally vague. They sought an injunction and damages. Judge Grady (N.D. Ill.) granted plaintiffs summary judgment on liability and permanently enjoined enforcement of the ordinance. The City appeals.

In their opinion, Chief Judge Easterbrook and Judges Bauer and Hamilton vacated and remanded. The Court first noted that, although the district court had not disposed of all claims, it had limited appellate jurisdiction under § 1292(a)(1). Before reaching the merits, the Court addressed the plaintiffs' standing on their request for injunctive relief. Among other things, they must show that a favorable decision from the court will prevent or redress the injury. The Court found that element absent. There is no evidence in the record of any disorderly conduct in their vicinity -- an essential element of the offense for which they were arrested. Given that their conduct was clearly outside the scope of the ordinance, the requested injunction is unlikely to prevent future injury. The Court concluded that this misuse of the ordinance by the Chicago police does not provide a basis on which a federal court should examine the constitutionality of the law. The Court added that plaintiffs of course have standing to challenge their arrest and seek money damages.

Tags: Opinion By Hamilton, Civil Rights, Constitutional Law, First Amendment, Free Speech, Injunctive Relief, Section 1983, Standing

Denial Of Funds To Student Religious Organization Held Unconstitutional

Posted on September 21, 2010 by Michael Rigney

BADGER CATHOLIC, INC. v. WALSH (September 1, 2010)

Badger Catholic is an approved and registered student organization at the University of Wisconsin. As such, it is eligible to apply for and receive money from the University. The monies come from a University account that is funded by a fee charged to every university student. The Supreme Court approved the University's practice (University of Wisconsin v. Southworth) because it was a neutral, forum-creating program that distributed funds without regard to viewpoint. The University rejected Badger Catholic's request for funds for six different programs. The denial was based on the University's practice of not funding programs that involve "worship, proselytizing, or religious instruction." Judge Adelman (W.D. Wis.) concluded that funding such activity would not violate the Establishment Clause and entered a declaratory judgment requiring the University to fund Badger Catholic on the same basis it funds other organizations. The University appeals -- Badger Catholic cross-appeals.

In their opinion, Chief Judge Easterbrook and Judges Evans and Williams (dissenting) affirmed. The Court cited two Supreme Court cases (Widmar and Rosenberger) in support of its conclusion that the district court was correct in its decision that funding the programs would not violate the Establishment Clause. The University also argued that it was permitted to withhold the funds even if the funding did not violate the First Amendment. The Court distinguished the University's reliance on Locke (which permitted a state to exclude ministry study from its scholarship program). The decision in Locke was a form of government speech -- here, the University created a public forum for student speech. Having created the public forum, it must not discriminate among the speakers within the scope of the forum. The University must fund the rejected programs if similar, secular programs are funded. The Court also rejected Badger Catholic's cross-appeal: a) damages are not available against the University because it is not a "person" under § 1983, b) damages are not available against the individual defendants because of official immunity, c) damages are not available under state law because Badger Catholic failed to comply with statutory notice requirements, and d) the district court did not abuse its discretion in issuing a declaratory judgment instead of an injunction.

Judge Williams dissented. She phrased the issue as whether the University's rejection of Badger Catholic's programs was disallowing a particular view on a permissible topic (viewpoint discrimination -- unconstitutional) or disallowing any view on a particular topic (content discrimination -- constitutional). Her conclusion was that the University was engaged in the latter. The Constitution allows it to decide not to fund purely religious activity. It gets around any problem in defining the scope of that restriction by allowing the student organizations themselves to identify purely religious activities.

Tags: Opinion by Easterbrook, Constitutional Law, Content Neutral, Establishment Clause, First Amendment, Opinion (Dissenting) By Williams, Viewpoint Neutral

Unlawful Publication Of Investigation Did Not Rise To Due Process Violation

Posted on September 17, 2010 by Michael Rigney

WOLFE v. SCHAEFER (August 31, 2010)

Mervin Wolfe ran an unsuccessful campaign for Cumberland County State's Attorney in 2008 against Barry Schaefer, the incumbent. Wolfe brought suit against Schaefer and others (with whom he had a long history) pursuant to § 1983. He alleges that the defendants violated his Fourth and Fourteenth Amendment rights when they published the fact that he was under investigation by certain state agencies as part of their attempt to defeat his campaign. Judge Scott (C.D. Ill.) dismissed the complaint. Wolfe appeals.

In their opinion, Judges Posner, Wood, and Hamilton affirmed. The Court noted that the state law required the investigations be kept confidential. But Wolfe did not allege a violation of state law -- he alleged that the state law granted him a constitutional right. The Court recognized that a state law can create a liberty or property interest protected by the due process clause. There is also a common law breach of privacy tort, including one that protects an unreasonable interference with one's private life. The issue for the Court was whether any of this rose to the level of a protected property or liberty interest. The Supreme Court has not held that disclosure of private information violates the due process clause. In Whalen, it suggested that the disclosure of certain private information might do so -- but in Paul v. Davis held that one's reputation is not constitutionally protected. The courts of appeals have used Whalen to recognize certain constitutionally protected privacy rights. Although the Court recognized that certain situations might give rise to a constitutional right to privacy, it concluded that Wolfe's case was at the other end of the continuum. Information regarding the investigations of a candidate for public office is a matter of significant public interest. Wolfe's complaint was properly dismissed.

Tags: Opinion by Posner, Constitutional Law, Due Process, Fourteenth Amendment, Liberty Interest, Section 1983

Court Finds Taser Use Permissable Under The Circumstances

Posted on September 16, 2010 by Michael Rigney

FORREST v. PRINE (August 31, 2010)

In responding to a 911 call, the Rock Island County Sheriff's police came upon Roger Forrest. Forrest was uncooperative and belligerent. After he struck an officer, the police employed a taser several times to subdue him. He was arrested and charged with a felony. Pursuant to County procedure, he was subject to a strip search. Forrest refused to cooperate, instead pacing back and forth in a small room, shouting obscenities and insulting the officers present. One of those officers, Michael Prine, warned him on several occasions that he would use a taser again if Forrest did not comply with the search. Eventually, he did use the taser. The testimony differs on this point. Prine and other officers testified that he aimed the taser at Forrest's back -- Forrest testified that Prine aimed at his face. In any event, one of the darts did hit his face. He fell and suffered a head injury. Forrest brought an action pursuant to § 1983 against Officer Prine. He complained of the use of excessive force in violation of the Fourth and Fourteenth Amendments. Magistrate Judge Gorman (C.D. Ill.) granted summary judgment to Prine. Forrest appeals.

In their opinion, Judges Posner, Ripple, and Kanne affirmed. The Court first commented on the basis for Forrest's claim. The Fourth Amendment grants certain rights to be free from excessive force but applies only in the search and seizure context. The Court admitted that it had not precisely defined the temporal contours of Fourth Amendment protection but concluded that allegations arising in the pretrial detention process, such as Forrest's, are clearly outside its temporal bounds. On the other end of the spectrum, the Eighth Amendment protects sentenced prisoners from claims of unnecessary or excessive force or punishment. Forrest's claims arise in the pretrial detainee context and are governed by the due process clause of the Fourteenth Amendment. In analyzing Forrest's claim, the Court applied an Eighth Amendment approach. The due process clause provides at least as much (and maybe more -- but Forrest did not argue so) protection as the Eighth Amendment. The test under the Eighth Amendment is whether the force is "unnecessary and wanton infliction of pain." The relevant factors include the need for and amount of force, the existence of a threat, any effort to use less force, and the extent of any injury. Applying that test here, the Court concluded that no reasonable factfinder could find Prine's use of force impermissible. Forrest was a large man in a small space, pacing and shouting, threatening and swearing, clenching his fists and refusing to follow orders. Prine warned him several times that he would use the taser if Forrest did not follow instructions. Finally, the Court refused Forrest's invitation to infer some malicious intent from the mere fact that one dart struck him in the face. There is simply no evidence to support such an inference.

Tags: Opinion by Ripple, Civil Rights, Constitutional Law, Eighth Amendment, Excessive Force, Fourteenth Amendment, Fourth Amendment, Inference

Court Denies Rehearing En Banc In Case Upholding Prohibition On Political Endorsements By Judges

Posted on September 16, 2010 by Michael Rigney

SIEFERT v. ALEXANDER (August 31, 2010)

On June 14, 2010, a panel of the Court issued its opinion in Siefert v. Alexander (opinion here – intheiropinion here). In a 2-1 decision, the majority applied a balancing test in upholding a Wisconsin prohibition on judges or judicial candidates from publicly endorsing other partisan candidates. Siefert petitioned for Rehearing En Banc.

In their opinion, the Court denied the petition.

Judge Rovner (joined by Judges Wood, Williams, and Hamilton) dissented from the denial. Judge Rovner stated that the Supreme Court and every other circuit court that has addressed the First Amendment rights of judges have done so by applying a strict scrutiny test. She disagreed with the application of the balancing test by the majority and favored rehearing.

Tags: Opinion per curiam, Balancing Test, Constitutional Law, Rehearing En Banc, Strict Scrutiny

Younger Abstention Extended To Civil Case In Which Plaintiff Is Not The Target Of State Enforcement

Posted on September 10, 2010 by Michael Rigney

SKS & ASSOCIATES v. DART (August 27, 2010)

SKS & Associates owns a number of residential rental properties in and around Chicago. From time to time, SKS has used Illinois' eviction procedures to deal with tenants who do not pay their rent. In November of 2008, the Chief Judge of the Cook County Circuit Court entered a General Order that prohibited the Sheriff from carrying out an eviction order during a specified period around the winter holidays, whenever the temperature was lower than 15°, or when the Sheriff determined that "extreme weather conditions" threatened the health and welfare of persons evicted. SKS brought an action pursuant to § 1983 against the Chief Judge and the Sheriff. It alleges that the Order denies it equal protection, deprives it of property without due process, and that it amounts to the establishment of a religion. Judge Shadur (N. D. Ill.) dismissed the action before the defendants appeared. SKS appeals.

In their opinion, Judges Kanne, Wood, and Hamilton affirmed. Although a federal court should normally exercise the jurisdiction which it has been granted by the Constitution, there are exceptions. The Court noted the four main abstention doctrines: Pullman, Burford, Younger, and Colorado River. With respect to each of these doctrines, a federal court can decline to exercise its jurisdiction. The Younger doctrine, the only abstention doctrine inapplicable here, teaches a federal court to abstain from resolving federal constitutional claims when doing so would interfere with ongoing state proceedings. The Younger doctrine started in the criminal context and required abstention when a criminal defendant sought to block a state prosecution on federal constitutional grounds. The Supreme Court has extended it, on a limited basis, to civil proceedings. It has not, however, extended to a situation, like this, where SKS is not the target of any state enforcement. Nevertheless, the Court identified the same principles (equity, comity, and federalism) at stake here that support the Younger doctrine. SKS wants a federal court to tell a state court how to manage its cases. Doing so would demonstrate a lack of respect for the state court's abilities. Furthermore, the Court did not believe that SKS had no state remedies. It could simply ask the court to issue an eviction order notwithstanding the General Order, it could file suit in state court to vacate the General Order, or it could seek a writ of mandamus to compel a reversal of the Order. SKS must allow a state court the opportunity to address its constitutional complaints about the Order.

Tags: Opinion By Hamilton, Younger Abstention, Abstention, Constitutional Law, Jurisdiction, Section 1983

Appointed Police Commissioner Has A Duty Of Loyalty To The Town

Posted on September 9, 2010 by Michael Rigney

GROSS v. TOWN OF CICERO (August 27, 2010)

For several years after Clarence Gross retired as a Cicero police officer, he served in a number of appointed positions in the Town's government. The Town President appointed him Chairman of the Board of Fire and Police Commissioners. As Chairman, Gross oversaw the hiring of the Town's police officers. Gross admits that he hired several officers that he deemed unqualified because he was directed to do so by the Town President. Rhonda Gross, Clarence's daughter, also served as a Cicero police officer during this time. She complained to Gross that she and other female police officers were the victims of sexual harassment. Gross approached the Town President on several occasions to discuss the harassment. On each occasion, she deflected his attempt and promised to address it later. Rhonda filed an EEOC charge. The EEOC found substantial evidence that she was the subject of sexual harassment -- the Town settled. After Rhonda filed her charge, Gross was removed from his various appointments. He complained to the Town's attorney that he was owed compensation. When he became involved as a potential witness in litigation against the Town, he claims that the attorney told him he would not get his compensation until the other litigation was resolved. Gross brought suit pursuant to § 1983 against the Town, the President, a successor President, and the Town’s attorney. He alleged First Amendment free-speech violations. The Town brought counterclaims for breach of fiduciary duty and unjust enrichment. Judge Darrah (N.D. Ill.) granted summary judgment to the defendants on Gross' claim, granted summary judgment to Gross on the unjust enrichment claim, but granted summary judgment on liability to the Town on the breach of fiduciary duty claim. The court ultimately awarded over $300,000 on the claim after a bench trial, representing Gross' entire salary for the years in question.

In their opinion, Judges Cudahy, Williams, and Tinder affirmed in part and reversed and remanded in part. The Court first addressed Gross' First Amendment retaliation claims, specifically the first prong of the retaliation inquiry -- whether his speech was constitutionally protected. Three different episodes of retaliation were alleged: a) his sexual harassment complaints on behalf of Rhonda to the Town President, b) his instruction to Rhonda to file an EEOC charge, and c) his conversations with the plaintiffs’ lawyers in another case against the Town. The Court concluded that none of the episodes constituted protected speech: a) his complaints to the Town President about sexual harassment (to the extent there was even any actual content to the speech, as opposed to a mere request to discuss) were not matters of public concern but merely a private grievance, b) any encouragement to Rhonda to file the EEOC charge was not speech on a matter of public concern but, again, a mere private matter (the record also contains no evidence that any defendant was aware of this speech, precluding a finding of causation), and c) there is no evidence in the record to establish that a conversation with plaintiffs' lawyers in another case could constitute protected speech. The Court therefore affirmed the district court's finding in favor of the defendants on Gross’ First Amendment claim. The Court next addressed the Town’s breach of fiduciary duty claim. The district court noted that an Illinois statute sets standards by which municipalities’ Police Boards must evaluate appointed police officers. The court held that the statute created a fiduciary duty on the part of Police Board members to exercise independent judgment. The Court disagreed. The statute does not refer to fiduciary duties and the Court was reluctant to create one. Instead, the statute merely grants authority and establishes rules for the exercise of that authority. Although it concluded that the statute did not create a duty, the Court did recognize that Gross was subject to a duty of loyalty owed by all public officials. Relying on the standard the Illinois Supreme Court stated in upholding a criminal conviction, the Court ruled that there was sufficient evidence (barely) in the record for a factfinder to conclude that Gross violated that duty. A factfinder could conclude that Gross engaged in a quid pro quo arrangement with the Town President by which he protected his and his daughter’s jobs in return for appointing unqualified police officers selected by the President. The Court remanded for additional factual findings on that issue. Its conclusion on liability did not necessitate any analysis of the damage award. Nevertheless, the Court commented that the district court’s total salary forfeiture was not correct, unless Gross was breaching his duty during his entire tenure, a conclusion not supported by the current record.

Tags: Opinion by Tinder, Civil Rights, Constitutional Law, Duty Of Loyalty, First Amendment, Forfeiture, Labor & Employment, Protected Speech, Remedy, Section 1983

Court Upholds Indiana Restrictions On Judges' Political Activities

Posted on September 7, 2010 by Michael Rigney

BAUER v. SHEPARD (August 20, 2010)

Indiana Right to Life, Inc. sends questionnaires to judicial candidates for election or retention. The questionnaires seek information on the recipient's views on abortion. The organization filed suit challenging certain provisions of Indiana's Code of Judicial Conduct relating to the political activities of judges and candidates for judicial office. The suit was dismissed for lack of standing. In the present suit, the organization is joined by a sitting judge and a candidate for judicial office. The plaintiffs challenge five provisions of the code, four current and one which was in effect in 2008: a) the current and former rules forbidding "commitments that are inconsistent with the impartial performance of judicial office," b) the rule requiring recusal of a judge if he or she made a public statement "that commits or appears to commit the judge to reach a particular result," c) the rule limiting the partisan political activities of judges, and d) limits on fundraising. Judge Springmann (N.D. Ind.) concluded that the challenge to the earlier version of the code was moot and concluded that the challenged sections of the current code were all constitutional. Plaintiffs appeal.

In their opinion, Chief Judge Easterbrook and Judges Manion and Evans affirmed as modified. The Court first concluded that the individual plaintiffs had standing because of the threat to prosecute and the probability of future injury. Next, the Court addressed the challenge to the no-longer current section of the code. It disagreed with the lower court's finding of mootness. The code's amendment in 2009 did not eliminate the possibility of a prosecution for an earlier violation. Nevertheless, given the significant number of unlikely steps that must occur before such a prosecution, the Court concluded that the matter was not ripe for adjudication. The Court then addressed the merits of the challenge to the four current provisions in light of the Supreme Court's decision in White and the Court's own decision earlier this year in Siefert. The Court held: 1) The solicitation prohibition is fundamentally the same as the one the Court upheld in Siefert. It is not facially unconstitutional and the state should be given an opportunity to make exceptions as appropriate. 2) Although Siefert did not address political leadership roles and speechmaking, it did uphold a prohibition on public political endorsements. Its analysis led the Court to conclude that the preservation of public confidence in the judiciary is enough of a compelling interest to uphold the leadership and speechmaking prohibitions of the Indiana code. White dealt with limitations on the judge's own positions -- it did not affect precedent dealing with a judge's impact on the other elections. 3) With respect to the "commits" provision, the Court distinguished between the questionnaire, which asked for a candidate's views on certain topics and which the Supreme Court said was allowable, and the code provision, which only prohibits commitments "inconsistent with the impartial performance" of one's office. The Court did recognize some vagueness in the language. However, instead of identifying hypothetical situations in which the state may act too broadly, the Court chose to assume that the state would act reasonably and continue to refine the meaning of the provision through the administrative processes. 4) Finally, with respect to the recusal provision, the Court found no constitutional issue at all. The recusal clause does not address a judge's role as candidate -- it addresses a judge's role as public employee. Under Garcetti, a judge's speech in his role as a judge is not protected speech. Furthermore, a state has every right to allocate a court case to a judge whose impartiality is not open to debate.

Tags: Opinion by Easterbrook, Garcetti, Siefert, White, Constitutional Law, First Amendment, Mootness, Ripeness, Standing, State Statute - Other

Garcetti Extended To Employee Retaliation When The Alleged Retaliation Served To Advance The Employer's Interests

Posted on September 1, 2010 by Michael Rigney

ABCARIAN v. MCDONALD (August 13, 2010)

Dr. Herand Abcarian was a senior surgeon at the University of Illinois College of Medicine and the University of Illinois Medical Center in Chicago. Over time, he clashed frequently with co-employees over issues like recruitment, compensation, risk management, and benefits. He alleges that several of these co-employees conspired to defame him and deprive him of his constitutional rights. In particular, he alleges: a) they caused the University to settle a malpractice claim against him for almost $1 million, b) the reported the malpractice settlement to federal and state databanks, and c) they caused the malpractice plaintiff's attorney to file suit against Abcarian only to then have it dismissed as a result of the settlement. Abcarian brought suit pursuant to § 1983, alleging constitutional violations of his right to free speech, equal protection, and procedural due process. Judge Der-Yeghiayan (N.D. Ill.) dismissed for failure to state a claim. He also denied Abcarian's requests to amend the judgment and to amend his complaint. Abcarian appeals.

In their opinion, Judges Kanne, Williams, and Hamilton affirmed. The Court first addressed his First Amendment claim that he was retaliated against for his speech. Garcetti dealt with an employer's retaliation and the Court noted that it had already reserved judgment once about whether that rule applied to a co-employee's retaliation. Again, the Court ducked the question whether Garcetti applies to all employees but did conclude that it applies to employees whose actions are advancing the interests of their employer. The Court also concluded that a practical view of the speech, keeping in mind Abcarian's role and the content and context of the speech, lead to the conclusion that he spoke as a public employee under Garcetti, not as a private citizen. His speech was therefore not protected. Abcarian's equal protection claim was a "class-of-one" claim under which a plaintiff need not allege a suspect classification. The plaintiff must, however, allege arbitrary treatment without a rational basis. The basis of Abcarian's claim is that the defendants reported the malpractice settlement. But they had no discretion in the matter. Federal and state law required the report and would have exposed them to punishment had they failed to report. The Court concluded that the lack of discretion precluded an equal protection claim. Abcarian's third constitutional claim was a procedural due process claim based on the defendants' defamation. In order for defamation to rise to the level of a due process violation, a plaintiff must allege that was stigmatized by publicly disclosed information and that he suffered a loss of employment opportunities. The Court concluded that Abcarian could not meet this test because he still maintains his same positions at the Medical Center and College of Medicine. One cannot be thought to have been deprived of something that one still possesses. Finally, the Court concluded that Abcarian could not and did not meet the test for a Rule 59(e) motion. Since a post-judgment amendment would only be allowed if his Rule 59(e) motion was granted and it was clear that the district court had entered a final judgment, Abcarian was also not entitled to amend his complaint.

Tags: Opinion By Hamilton, Garcetti, Civil Procedure, Civil Rights, Class-of-One, Constitutional Law, Due Process, Equal Protection, Final Judgment, First Amendment, Public Speech, Rule 59

Genuine Issues Of Material Fact Preclude Summary Judgment On Qualified Immunity

Posted on August 31, 2010 by Michael Rigney

MCALLISTER v. PRICE (August 12, 2010)

Frank McAllister, who suffers from diabetes, was driving his car alone early one afternoon when he suddenly went into a severe hypoglycemic state. McAllister's car struck two other vehicles before coming to rest. Although McAllister was not injured, witnesses described him as staring into space and convulsing. Burns Harbor police officer Jerry Price responded. The dispatch advised Price that the accident may have been caused by an intoxicated driver. Price confronted McAllister. When McAllister failed to follow his instructions or respond to his questions, Price removed him from his car with force. According to a witness, Price threw him to the ground, put his full weight on his back, and handcuffed him. Eventually, and only after the suggestion of a bystander, Price checked McAllister for medical alert identification. He discovered a diabetes alert necklace on McAllister and released him. McAllister suffered from a broken hip and a bruised lung. He brought a § 1983 complaint against Price. Judge Van Bokkelen (N.D. Ind.) denied Price's request for summary judgment on qualified immunity grounds, concluding that there were genuine issues of material fact. Price brought an interlocutory appeal.

In their opinion, Judges Bauer, Flaum, and Tinder affirmed. A qualified immunity defense requires that a court answer two questions: whether there is a constitutional deprivation and whether the constitutional right was "clearly established" at the time. The Court first addressed the deprivation -- whether Price used excessive force. Three factors mattered: the degree of severity of any offense, whether the victim was a safety threat, and whether the victim was a flight risk. Before addressing the merits of the excessive force claim, the Court resolved two evidentiary issues. First, it concluded that the district court did not err in allowing evidence of McAllister's hip injury, even though there was no conclusive medical testimony that Price's actions caused the injury. Some causal evidence is all that is required for the jury to consider the evidence. Second, the Court concluded that the district court did not err in considering McAllister's diabetic condition. Although a police officer is not required to accommodate unknown conditions, here McAllister was obviously suffering from something and Price was trained in recognizing diabetes, trained in recognizing intoxication, and trained to look for medical alert identifications. On the merits of the constitutional deprivation question, the Court concluded that there was sufficient evidence for a jury to conclude that the amount of force used was excessive. On the second question, the Court concluded that the case law in effect at the time of the incident was sufficient to "clearly establish" McAllister's rights to be free from the excessive force as alleged.

Tags: Opinion by Flaum, Civil Procedure, Civil Rights, Clearly Established Law, Constitutional Law, Excessive Force, Qualified Immunity, Section 1983

Prisoner Capable Of Representing Himself In A Civil Case Was Not Entitled To Appointment Of Counsel

Posted on August 26, 2010 by Michael Rigney

ROMANELLI v. SULIENE (August 11, 2010)

Ron Romanelli was incarcerated at the Columbia County Jail. He claims that he was in desperate need of medical attention while incarcerated and that Dr. Suliene and Sgt. Kuhl violated his rights to adequate medical care. The district court granted Romanelli leave to proceed on his § 1983 claim but denied his motion for court-appointed counsel as premature. The court denied a second motion a few months later, concluding that Romanelli was capable of representing himself. After the court denied the defendant's motions for summary judgment, it also denied Romanelli's third request for counsel. The court concluded that the case was not complex, that Romanelli had successfully defeated the summary judgment motions, and that the Romanelli was provided with detailed trial instructions. The case proceeded to trial before Magistrate Judge Crocker. The Magistrate Judge ruled that the defendants were permitted to impeach Romanelli with evidence of prior convictions for issuing worthless checks, bail jumping, and sexual assault -- he did not permit impeachment with evidence of Romanelli's convictions for resisting/obstructing an officer and failure to report as a sex offender. A jury concluded that Romanelli did not suffer from a serious medical condition. The court entered judgment in favor of the defendants. Romanelli appeals.

In their opinion, Judges Ripple, Kanne, and Sykes affirmed. The Court first noted the absence of any right to counsel in a civil case but added that a district court has discretion under 28 U.S.C. § 1915(e)(1) to appoint counsel. In exercising that discretion, the court should examine whether the plaintiff is indigent, whether the plaintiff has made reasonable attempts to retain counsel, whether the case is complex, and whether the plaintiff is capable of representing himself. The Court concluded that the district court applied that proper standard and did not abuse its discretion in denying court-appointed counsel to Romanelli. The court acted within its discretion in denying a) the first motion -- it was too early for the court to make the necessary determinations, b) the second motion -- exceptional circumstances were absent and the court made a threshold determination that Romanelli was capable of representing himself in a relatively simple case, and c) the third motion -- Romanelli had proven himself capable of his own representation. The Court added that Romanelli had a very weak case on the facts and suffered no obvious prejudice due to the lack of professional representation. With respect to the evidence of prior convictions, the Court also concluded that the trial court did not abuse its discretion. The Court relied on the facts that almost all of the evidence relating to Romanelli's prior convictions was brought into the record by Romanelli himself and that the court included limiting instructions to the jury. Finally, the Court also noted that any evidentiary error would have been harmless given Romanelli's lack of credibility and the dearth of corroborating evidence.

Tags: Opinion by Kanne, 28 U.S.C. 1915(e)(1), Civil Rights, Constitutional Law, Court-Appointed Counsel, Evidence, Federal Statute - Other, Impeachment, Prior Convictions, Section 1983

Procedurally Defective Investigation Did Not Violate A "Clearly Established" Constitutional Right

Posted on August 13, 2010 by Michael Rigney

PURVIS v. OEST (AUGUST 2, 2010)

Gina Purvis was a high school teacher in Spring Valley, Illinois. In early 2004, rumors of a sexual relationship between Purvis and a 15-year-old student arose. Principal Patricia Lunn questioned Purvis and the student. When both denied the truth of the rumors, she dropped it. However, when the rumors resurfaced the following year, Lunn and Superintendent Oest decided to investigate. Oest and Dean of Students Gary Vicini carried out the investigation. Unfortunately, Vicini knew that Purvis had reported him for the sexual harassment of a student the prior year. Lunn was aware of Vicini's conflict, although Oest was not. Oest and Vicini interviewed the student, who denied the relationship. There is evidence that Vicini then threatened the student with expulsion if he continued to deny the relationship. The student recanted his denial, admitted the relationship, and provided numerous details about its development. Oest reported the matter to the local police, who in turn reported the matter to the Department of Children and Family Services (“DCFS”). Neither the police nor DCFS were informed of Vicini's potential bias. The police investigation resulted in significant additional information, some of which supported the student's admission and some of which did not. Of particular importance was the fact that the student's cousin, while on leave from the Navy, picked the student up from Purvis' house and saw them kissing. Purvis was arrested and resigned her teaching position but was later acquitted of all charges. She brought suit alleging a denial of due process and false arrest against Oest, Lunn, Vicini, and the police investigator. Judge Mihm (C.D. Ill.) denied the defendants' request for summary judgment, finding genuine issues of fact with respect to the constitutional violation itself and concluding that the defendants were not entitled to qualified immunity. The defendants appeal.

In their opinion, Judges Cudahy, Manion, and Williams reversed. First, the Court found genuine issues of material fact both with respect to Vicini's bias and with respect to the independence of the subsequent investigations by the police and the DCFS. Due process is not provided when the process is biased and deprives one of a protected interest. Purvis had a protected interest in her job as a tenured teacher. The Court concluded that a jury could find that the subsequent investigations did not cure the fundamental bias present in the original investigation. The Court then addressed qualified immunity. The first prong of the qualified immunity test was already answered in the Court's treatment of the summary judgment appeal. The facts in a light most favorable to Purvis demonstrated a constitutional violation. Application of the second prong of the test, whether the right was "clearly established," led the Court to conclude that each of the non-police defendants was entitled to qualified immunity. Oest was not even aware of Vicini's bias and could not have knowingly violated a clearly established right. Lunn and Vicini are also entitled to qualified immunity based on the Court's conclusion that there was no case law holding that reporting Purvis to a separate body for an independent investigation violated a clearly established constitutional right. Finally, the Court concluded that the police investigator was entitled to qualified immunity under the first prong of the test. The officer had probable cause to arrest Purvis -- there was no constitutional violation. The evidence uncovered by the police officer "easily" met the probable cause standard -- whether there is a probability of criminal activity. Although significant exculpatory evidence was uncovered in the police investigation (enough, in fact, that Purvis was ultimately acquitted), it did not negate the existence of probable cause. As an alternative ground for finding qualified immunity, the Court noted that a reasonable police officer would believe probable cause existed even if it did not.

Tags: Opinion by Cudahy, Civil Rights, Clearly Established Law, Constitutional Law, Due Process, Probable Cause, Qualified Immunity

Several Factors Support Finding Of Qualified Immunity

Posted on August 12, 2010 by Michael Rigney

MOSS v. MARTIN (August 2, 2010)

William Moss was hired as the Chief of the Illinois Department of Transportation's (IDOT) Springfield, Illinois Highway Sign Shop in 2000. He was responsible for taking care of the signs on Illinois' highways. Moss was also a Republican. In 2003, a Democratic governor was elected in Illinois for the first time in a long time. Shortly thereafter, IDOT personnel manager Jacob Miller, who knew that Moss was a Republican, discovered that he was non-exempt. Non-exempt employees are those that are not protected from employment decisions based on their political affiliation. Miller started the process for firing Moss. Before any action was taken, Scott Doubet replaced Miller. Independently of anything Miller had decided or started, Doubet fired Moss in order to provide a job to Joe Athey, who was loyal to the new governor. Moss brought suit under § 1983, alleging that his First Amendment and due process rights were violated. Judge Scott (C.D. Ill.) dismissed the claims. On appeal, the Seventh Circuit reinstated the First Amendment claim. The district court then granted summary judgment to the defendants on qualified immunity grounds. Moss appeals.

In their opinion, Judges Kanne, Wood, and Hamilton affirmed. The district court only addressed the second prong of the qualified immunity test, whether Moss’ constitutional rights were clearly established at the time of the defendants' conduct. The Court nevertheless briefly visited the first prong of the test, whether Moss' First Amendment rights were even violated. The Court noted that a fact finder could find that the firing was politically motivated, particularly against some of the defendants. It also found that Moss had a "promising" argument that his classification as non-exempt was wrong. Non-exempt positions are reserved for individuals with policymaking responsibilities or those who handle confidential information. The Court did not believe that the Chief of the Highway Sign Shop met that definition. Thus, the Court moved to the issue addressed by the district court -- whether it was "clearly established" that defendants' actions would violate the First Amendment. Although not dispositive, the Court agreed with the district court that Illinois' designation of the position as non-exempt favored a qualified immunity finding. The Court also relied on the fact that the job was designated exempt before Moss took the position. Finally, the Court found it particularly telling that Moss was unable to point to a closely analogous case despite a large number of political patronage case. The Court therefore concluded that qualified immunity was appropriate.

Tags: Opinion by Wood, Civil Rights, Constitutional Law, First Amendment, Labor & Employment, Qualified Immunity

Intentional Infliction Of Emotional Distress Claim Alleging Unlawful Activity Leading To Conviction Does Not Accrue Until Conviction Is Lifted

Posted on August 5, 2010 by Michael Rigney

PARISH v. CITY OF ELKHART (July 30, 2010)

A jury found Christopher Parish guilty of the 1996 shooting of Michael Kershner in his Elkhart, Indiana home. Evidence uncovered during his post-conviction proceedings supported a different conclusion: that Kershner was shot in a drug deal and was not even in his home at the time, and that local police threatened witnesses and otherwise fabricated evidence in an effort to falsely convict Parish of the crime. Parish's conviction was vacated in 2006 by the Indiana Court of Appeals. The state then dropped all charges. Parish brought suit pursuant to § 1983, alleging the denial of a fair trial. He also brought state claims for false arrest, false imprisonment, and intentional infliction of emotional distress (“IIED”). Judge Lozano (N.D. Ind.) dismissed all but the § 1983 fair trial claim on statute of limitations grounds. The court granted Parish's request for a Rule 54(b) certification. Parish appeals.

In their opinion, Judges Posner, Flaum, and Williams affirmed in part and reversed in part. Parish conceded, at oral argument, the propriety of the dismissal with respect to the claims for false arrest and false imprisonment. Thus, the only issue on appeal is the dismissal of the IIED claim. The parties agreed that the statute of limitations for the claim is two years from the date it accrued. The Court discussed four cases in its analysis of when an Indiana IIED claim accrues. In Heck, the Supreme Court held that a state prisoner could not bring a § 1983 suit for damages until his conviction was overturned. A judgment would have implied the invalidity of his conviction – the claim was therefore an improper collateral attack on the conviction. An Indiana appellate court followed Heck in Scruggs, when it dismissed false imprisonment claims. The Scruggs plaintiffs, still imprisoned, were also attacking the validity of their convictions. Next, in Wallace, the Supreme Court held that a claim for false arrest or false imprisonment requires a detention without legal process and therefore ends when legal process (e.g., appearance before a magistrate) is granted. The cause of action accrues at the same time -- when the false imprisonment ends. The Court distinguished Heck. Unlike in Heck, the Wallace claim for false imprisonment did not challenge the validity of a conviction. In fact, it did not even require a conviction. Finally, in Johnson, another Indiana appellate court concluded that a false arrest claim accrued at the time of arraignment (when process was granted) but that other claims of emotional discretion and invasion of privacy based on an unreasonable search accrued at the time of the search. Thus, the general rule requires an examination of whether the tort was complete before conviction (e.g., an IIED claim tied to an unreasonable search) or not (e.g. an IIED claim tied to a false conviction). If the former, the claim accrues upon completion of the tort. If the latter, the claim accrues upon completion of the tort unless it directly implicates the validity of the conviction. If it does, the claim does not accrue until the conviction has been lifted. Applying these principles to Parish's claim, the Court concluded that the IIED claims were not complete prior to conviction. In fact, the conviction was an integral part of Parish’s IIED allegations. The Court then concluded that the claim also attacks the validity of Parish's conviction and could not have been brought while the conviction was still outstanding. Parish brought the claim within two years of his exoneration – it is timely.

Tags: Opinion by Flaum, Accrual, Civil Procedure, Civil Rights, Constitutional Law, Fair Trial, False Arrest, False Imprisonment, Intentional Infliction Of Emotional Distress, Rule 54(b), Section 1983, Statute of Limitations

§ 1983 Plaintiff Fails To Prove His Post-Acquittal Brady Claim (If One Even Exists)

Posted on August 3, 2010 by Michael Rigney

MOSLEY v. CITY OF CHICAGO (July 29, 2010)

It was mid-summer 1999 when Jovan Mosley and three other individuals were standing near the porch of a friend when Howard Thomas walked by. The four of them ran at Thomas. Thomas was beaten to death and the four of them left the area together. All four were arrested and charged with murder. The police took statements from them as well as several eyewitnesses. One eyewitness, Anton Williams, viewed Mosley in a lineup and identified him as a person who was on the scene. The lineup was not documented until 15 months later and the report does not what Williams said about Mosley's particular role in the murder. Another eyewitness, Gregory Reed, implicated all four of the defendants in the beating and specifically identified Mosley as having participated. Reed never testified at trial because he admitted to the prosecutor just before trial that he was quite drunk the night of the incident and had no independent recollection. Mosley remained in jail for over five years until he was tried and acquitted by a jury (see this for commentary on that delay). He brought a § 1983 action against the City of Chicago and several individual police officers who were involved in the investigation. He alleged a due process denial for the withholding of exculpatory evidence, malicious prosecution, and civil conspiracy. Judge Coar (N.D. Ill.) granted summary judgment to the defendants. Mosley appeals.

In their opinion, Judges Flaum, Rovner, and Wood affirmed. The Court first addressed the main issue, the failure to produce exculpatory evidence under Brady. The claim has two parts: a) that the prosecutors did not inform Mosley that Williams told the police at the lineup that Mosley did not participate in the beating, and b) that the prosecutors did not tell Mosley that Reed admitted to being drunk on the night of the incident. The Court noted the "logical tension" in a Brady claim when the case results in an acquittal. The normal test for a Brady claim is that the non-disclosed evidence could put the case in a different light and undermine confidence in the verdict. That test makes no sense when the verdict is an acquittal. In fact, the Court noted that several circuits have concluded that a Brady claim cannot exist after an acquittal. The Court has reserved answering that question in the past and did so again. In Bielanski, the Court concluded that the elements of a post-acquittal Brady claim, if one even exists, are a) the withholding of material and favorable evidence, and b) that would have changed the prosecutor’s decision to try the case. Since Mosley cannot meet either element, his Brady claim fails. With respect to the lineup, the Court concluded that there was literally no evidence in the record that Williams told police that Mosley did not participate in the crime. Other than a one-word answer to a leading question on cross-examination, his testimony was inconsistent with that conclusion. In addition, even if it was said, the prosecutors approach would not have changed. It did not have to prove that Mosley actually participated to prevail on the accountability theory it was pursuing. With respect to Reed being drunk, the prosecutor had no obligation to disclose the statement since Reed never testified at trial. The Court next addressed the state malicious prosecution claim, one of the elements of which is the lack of probable cause. The Court had no difficulty in concluding that the district court's finding that probable cause existed was correct. Finally, with respect to the civil conspiracy claim, the Court pointed out that Mosley offered no evidence of the common scheme element of the conspiracy claim. At the summary judgment stage, Mosley cannot rest on the allegations of his complaint but must come forward with evidence.

Tags: Opinion by Flaum, Brady Violation, Civil Conspiracy, Civil Rights, Constitutional Law, Due Process, Malicious Prosecution, Section 1983

The Fourth Amendment Does Not Support A Bright Line Test For The Reasonableness Of One Phase Of Detention

Posted on July 27, 2010 by Michael Rigney

PORTIS v. CITY OF CHICAGO (July 23, 2010)

The City of Chicago arrests thousands of individuals each year for crimes punishable only by monetary fines. These crimes include disorderly conduct, peddling, and minor traffic offenses, among others. The police procedure after such arrests is to confirm the identity of the individual, the existence of probable cause, and that the individual is not wanted for a more serious offense. At that point in the process, an individual is entitled to be released on a personal-recognizance bond. All that remains is the bond’s processing and approval and the return of any personal belongings that were taken upon the arrest. The individual is then released. A number of persons who were subjected to this process brought a class action against the City. They allege that if the period of time between the entitlement to release and the actual release exceeds two hours, the confinement is unreasonable and in violation of the Fourth Amendment. Judge Gettleman (N.D. Ill.) agreed and certified the question for appeal. The City appeals.

In their opinion, Chief Judge Easterbrook and Judges Bauer and Evans accepted the appeal -- and reversed and remanded. The Court compared the district court's ruling with the Supreme Court's decision in McLaughlin. In that case, the Supreme Court adopted a 48-hour test for the reasonableness of the period between arrest and presentation to a magistrate. That test differed in two ways from the district court's test: first, it looked at the entire process between arrest and presentation rather than one phase of the process -- and second, the 48-hour test was a presumption rather than a bright line rule. McLaughlin specifically rejected the adoption of arbitrary bright lines by courts -- only a legislature should venture there. The reasonableness of a detention should be decided as a whole -- not with relation to its component parts -- and should be decided individually -- not as a class. So not only did the Court find error in the lower court's decision on the merits, it also directed the district court to decertify the class. The named plaintiffs may still proceed individually with their claims that their detention was unreasonable.

Tags: Opinion by Easterbrook, Civil Rights, Class Actions, Constitutional Law, Fourth Amendment, Reasonableness

Specific Allegations Of Lengthy Delay In Receiving Dental Treatment Survives Section 1915A Screening

Posted on July 22, 2010 by Michael Rigney

MCGOWAN v. HULICK (July 20, 2010)

Michael McGowan was incarcerated in an Illinois prison in 2006. He filed a pro se lawsuit pursuant to state law and § 1983 against a dentist and the prison's dental director alleging the following facts: In November of 2006, his tooth began to hurt. His pleas for assistance finally resulted in an appointment with a dentist in late January 2007. The dentist refused to provide a filling but agreed to extract the tooth. The procedure did not go well. McGowan was in severe pain, the tooth broke apart, and the dentist had to remove pieces of the tooth from his mouth with an ice pick. After the procedure, the pain increased, a mass of tissue developed, and he developed a sinus perforation. Other than pain relievers and temporary fixes, McGowan received no treatment until August, months after the extraction. The complaint alleges detailed facts regarding his requests for treatment and the delay occasioned at least in part by the prison dental director. Judge Herndon (S.D. Ill.) dismissed the case with prejudice for failure to state a claim pursuant to the § 1915A screening. The court acknowledged the long delay in treatment but concluded that it did not amount to deliberate indifference. The court did not address the state law negligence claims. McGowan appeals.

In their opinion, Chief Judge Easterbrook and Judges Posner and Wood vacated and remanded. The Court noted the "well-established" Eighth Amendment test -- that deliberate indifference to serious medical (or dental) needs can amount to a violation. Delay itself can equal deliberate indifference in circumstances where it made conditions worse. Here, the Court concluded that the allegations against the prison dental director were erroneously dismissed. It noted the very specific complaint allegations of significant delays before McGowan was able to see the dentist, the oral surgeon, and finally the specialist. At this screening stage of this proceeding, the Court concluded that the allegations were sufficient to proceed. The Court reviewed the allegations against the dentist quite differently. It saw that as a dispute over which procedure was used and the competence with which it was performed. Although the ice pick allegation gave the Court the most pause, it decided that the allegation was simply that some instrument that looked like an ice pick was used. Although possibly supporting a negligence or gross negligence conclusion, the Court concluded that the allegations cannot support a finding of deliberate indifference. With respect to the state law negligence claims, the Court reinstated the claim with respect to the dental director and instructed the district court to modify its dismissal of the dentist to be without prejudice.

Tags: Opinion by Wood, Civil Rights, Constitutional Law, Cruel And Unusual Punishment, Deliberate Indifference, Eighth Amendment, Section 1915A

Dismissal Of First Amendment Challenge To Ordinance Is Upheld

Posted on July 22, 2010 by Michael Rigney

BRANDT v. VILLAGE OF WINNETKA (July 20, 2010)

William Brandt, Jr. resides in Winnetka, Illinois and is active politically. He has hosted several receptions for candidates and officeholders at his home. In the aftermath of such an event in 1996 for President Clinton, Winnetka passed an ordinance that requires event sponsors to pay for the “special services” required by the events. Special services includes things like additional police presence and traffic control measures. Notwithstanding the ordinance, Winnetka has not asked Brandt to pay for any special services occasioned by the several events he has sponsored since its passage. The village has invoked the ordinance on three occasions -- one for President Bush and two for Laura Bush. Political committees, rather than the individual sponsor, paid for at least two of those events. Brandt filed suit pursuant to § 1983, seeking a declaratory judgment that the ordinance violates the First Amendment. He alleged that it "chilled" his willingness to sponsor events and that it engaged in viewpoint discrimination on the theory that more controversial candidates would require more special services. Judge Dow (N.D. Ill) dismissed the complaint on the grounds that Brandt lacked standing. Brandt appeals.

In their opinion, Chief Judge Easterbrook and Judges Bauer and Tinder affirmed as modified. The Court noted that the district court dismissed for lack of standing because Brandt had not established an injury -- but also mentioned its belief that the issue was not ripe and that it may be an improper case to exercise the court's discretion to issue a declaratory judgment. The Court concluded that the district court was in error when it found an absence of standing. Standing can be found when there is an actual or impending injury, even though that injury may be small and not absolutely certain. Here, the Court found sufficient injury (as well as causation and redressability) to support standing. The Court concurred with the district court, however, in its decision not to exercise its discretion to issue a declaratory judgment. Brandt does not challenge the ordinance on its face -- only as applied. The record does not show that the ordinance will be applied in a discriminatory fashion or that it has had any effect on speech. Such an abstract record does not lend itself to a constitutional adjudication at this time.

Tags: Opinion by Easterbrook, As Applied, Constitutional Law, First Amendment, Jurisdiction, Pre-Enforcement Challenge, Ripeness, Section 1983, Standing

Acceptable Zoning Criterion Allows Village To Exclude Religious Assembly

Posted on July 15, 2010 by Michael Rigney

RIVER OF LIFE KINGDOM MINISTRIES v. HAZEL CREST (July 2, 2010)

The Village of Hazel Crest refused to allow the River of Life Kingdom Ministries ("Ministries") to locate its church in a commercial area of the village. Ministries had a very small congregation and hoped to relocate its facilities from a dirty warehouse in Chicago Heights to Hazel Crest. The area in which it wanted to locate was designated a commercial district under the village's zoning ordinance. New noncommercial uses were excluded from the district under the ordinance. Judge Gottschall (N.D. Ill.) denied the Ministries' request for a preliminary injunction under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). On October 27, 2009, a panel of the Seventh Circuit affirmed (the intheiropinion post). On petition by Ministries, the Court granted rehearing en banc.

In their opinion, the entire court affirmed, with Judges Manion, Cudahy, Rover, and Williams concurring and Judge Sykes dissenting. The "equal-terms" provision of RLUIPA prohibits a local government from instituting a land-use regulation that treats a religious institution "on less than equal terms with" a nonreligious institution. The Court addressed two different tests - one from the Third Circuit and one from the Eleventh. The Third Circuit approach is to identify a) the ordinance’s goals and b) the nonreligious assemblies comparable to the religious assembly at issue. The ordinance is consistent with the equal terms provision if the reasons for excluding a nonreligious assembly are applicable to the religious assembly. The Eleventh Circuit approaches the equal terms provision more literally. An ordinance that permits a nonreligious assembly must permit a religious assembly. The Eleventh Circuit test does include an exception -- unequal treatment could survive if it passed a "strict scrutiny" test. Although the panel had adopted the Third Circuit approach, the en banc court rejected both approaches. The Court believed the Eleventh Circuit’s approach was overprotective of religious groups (due, in large part, to the dictionary definition of "assembly") and that the "strict scrutiny" exception had no basis in the statute. With respect to the Third Circuit's test, its focus on the regulatory purpose of the zoning regulation was problematic to the Court. Instead, the Court adopted a variation of the Third Circuit test. It replaced the "subjective and manipulable" regulatory purpose test with an "objective" zoning criteria test. The zoning criteria used by Hazel Crest include setting aside land for commercial uses in order to generate tax revenue and to provide a convenient shopping area. When it created the district, it not only excluded churches but also excluded other nonreligious assemblies that did not offer opportunities for shopping or generate tax remedy. The Court concluded that Hazel Crest's adoption of an acceptable zoning criterion -- commercial district -- and its neutral application of the regulation demonstrated that Ministries was unlikely to prevail on the merits. It thus affirmed the district court's denial of the motion for a preliminary injunction.

Judge Cudahy concurred. He wrote separately to express his view that there was little difference in the Third Circuit’s “regulatory purpose” test and the Court’s “zoning criterion” test.

Judge Manion concurred. He wrote separately to express his view that the case was rather straight forward and that the en banc court's opinion unnecessarily crafted a test to apply to more difficult cases. He also took issue with the opinion's discussion of a complicated Establishment Clause issue.

Judge Williams concurred (joined by Judges Cudahy and Rovner). Judge Williams expressed her belief that the Third Circuit's "regulatory purpose" test adopted by the panel is the proper test.

Judge Sykes dissented. She explored in detail the history of RLUIPA as well as the text of the statute, not limited to the "equal terms" provision. She also laid out the history of the "equal terms" jurisprudence in the Third, Eleventh, and Seventh Circuits. She noted that the Seventh Circuit had approved of the Eleventh Circuit approach until the panel opinion in this case. In her view, the plain language of RLUIPA prohibits any zoning regulation that treats a religious assembly on less than equal terms with a non-religious one. It contains no requirement of discriminatory motive or bias. Judge Sykes concluded that the Ministries demonstrated a likelihood of success -- the zoning regulation's allowance of gymnasiums, health clubs, and day care centers in the district where the church is not allowed is sufficient to show unequal terms.

Tags: Opinion By Cudahy (Concurring), Opinion By Manion (Concurring), Opinion By Sykes (Dissenting), Opinion By Williams (Concurring), Opinion by Posner, Circuit Split, Constitutional Law, Equal Terms, Federal Statute - Other, First Amendment, Injunctive Relief, RLUIPA, Religious Land Use And Institutionalized Persons Act, Zoning

Constitutional And Common Law Challenge To Ogle County Windfarm Loses On All Counts

Posted on June 29, 2010 by Michael Rigney

MUSCARELLO v. OGLE COUNTY BOARD OF COMMISSIONERS (June 24, 2010)

Ogle County, Illinois joined the "green" movement in 2003 by amending its zoning ordinances to allow for the construction of windmills. Baileyville Wind Farms received the first special use permit for 40 windmills in 2005. The county also adopted a plan to protect residential, but not non-residential, property owners in the event of any diminution of property value. Patricia Muscarello owns nonresidential property adjacent to the proposed windfarm and has opposed its siting from the beginning. Unsuccessful in her attempts to block the project locally, Muscarello brought suit. She brought constitutional claims (unlawful taking, due process, equal protection), common law claims (trespass, nuisance), and state law claims (declaratory judgment, administrative review, writ of certiorari, unlawful taking, due process, equal protection, injunctive relief). She named over forty defendants, including Ogle County and related entities and individuals, the parties to the administrative proceedings, and Baileyville and its corporate parents. Judge Kapala (N.D. Ill) dismissed all the federal and common law claims as either unripe or for failure to state a claim. He then declined to exercise supplemental jurisdiction over the state law claims. He also denied a request by Baileyville to stay administrative proceedings regarding the expiration of the special use permit. Both parties appeal.

In their opinion, Judges Bauer, Wood, and Williams affirmed. The Court first addressed the three federal constitutional claims. The takings claim alleged no physical taking but relied on the “regulatory taking” concept. Under that concept, the permit must render her land useless for her to prevail. That is not the case here. Alternatively, the Court noted that Muscarello’s takings claim fails also because she failed to exhaust available state remedies. The Court rejected her equal protection claim that addressed the differential treatment afforded to residential and nonresidential landowners. Not only was it also unripe because of her failure to exhaust, the Court concluded that it would meet the deferential "rational basis" test. With respect to the due process claim, the Court concluded that Muscarello had no protectable property interest in the lifting of restrictions on adjacent property. The Court next addressed the state common-law claims, for which Muscarello asserted diversity jurisdiction. The district court never resolved the jurisdictional question, dismissing instead on ripeness grounds. On appeal, the Court considered both issues. The Court applied its citizenship analysis and concluded that Muscarello established diversity jurisdiction. On the merits, however, the Court agreed with the district court that Illinois law requires an invasion for both a trespass and nuisance. Since the windmills have not yet been built, there is no invasion -- and no trespass or nuisance. Finally, the Court considered the several state claims for which Muscarello asserted supplemental jurisdiction. It found no abuse of discretion for the dismissal of those claims. However, since it had just established that diversity jurisdiction did exist, it questioned whether the district court should have kept these claims under diversity jurisdiction. Although a plaintiff has the burden of establishing the court’s jurisdiction, a district court should rarely dismiss when jurisdiction in fact exists but was improperly pleaded. Here, the plaintiff had been given several opportunities to properly plead jurisdiction -- and she failed to do so. The Court decided not to do it for her. Finally, the Court found no abuse of discretion in the district court's denial of Baileyville’s requested stay.

Tags: Opinion by Wood, Appellate Procedure, Constitutional Law, Diversity Jurisdiction, Due Process, Equal Protection, Federal Question Jurisdiction, Injunctive Relief, Jurisdiction, Nuisance, Ripeness, Supplemental Jurisdiction, Trespass, Unlawful Taking

Constitutional Claim For Election Irregularities Requires Proof Of Intent To Impair Voting Rights

Posted on June 28, 2010 by Michael Rigney

PARRA v. NEAL (June 23, 2010)

Ambrosio Medrano filed the necessary papers to get his name listed as a candidate for 25th Ward Chicago alderman on the February 2007 ballot. Several voters challenged his papers. They asserted that his prior felony conviction prevented him from holding office. The Election Board and the circuit court sided with Medrano. Paper and electronic ballots were prepared with his name. Just four days before the election, the Illinois Supreme Court reversed the circuit court. It ordered the Election Board to either remove Medrano’s name from the ballot or, if it remained, to disregard any votes cast for him. The Election Board had insufficient time to correct the ballots. Instead, it posted signs in three languages at all polling places and distributed individual notices to every voter in the ward in which his name was on the ballot. The signs and notices explained that a vote for Medrano would not be counted. Nevertheless, Medrano received 178 votes. Eight of those voters brought an action pursuant to § 1983 claiming that the Election Board violated equal protection by disregarding their votes. Judge Darrah (N.D. Ill.) granted summary judgment to defendants. Plaintiffs appeal.

In their opinion, Judges Manion, Rovner, and Tinder affirmed. The Court emphasized the reluctance of a federal court to become entangled in state election matters. A § 1983 action can therefore prevail only if the defendants acted willfully and intended to undermine the voting process or impair the plaintiffs' voting rights. The Court found no proof -- or even allegation -- of wrongdoing on the part of the Election Board. In fact, it did what it had to do by following the mandate of the Supreme Court.

Tags: Opinion by Rovner, Constitutional Law, Election Law, Elections, Equal Protection, Right To Vote, Section 1983

Officer's Reasonable Reliance On Affidavit For Probable Cause To Search Provides Immunity From Damages

Posted on June 24, 2010 by Michael Rigney

JUNKERT v. MASSEY (June 21, 2010)

Roger Massey, the Sheriff of the DeWitt County, Illinois, began an investigation into a series of local burglaries. His investigation led him to Richard Baker. Baker provided much information to the police about his activities and those of Jeffrey McCall: a) he received stolen guns from McCall, b) he sold drugs with McCall, c) he named his cocaine source, d) McCall told him that McCall's attorney (a female) used cocaine, and e) McCall told him that he paid his attorney with stolen laptops. Massey corroborated some of the information from Baker. Additional investigation established that McCall's lawyer was Dodie Junkert, the only female lawyer in the county. Massey used the information from Baker in preparing an affidavit for a search warrant for Junkert's office and residence. When Massey informed Junkert of the existence of the search warrant, she admitted receiving the stolen laptops from McCall and arranged for their return. The police searched her office and home anyway. They found no computers but did find evidence of drug use. Junkert brought an action under § 1983, alleging that the Massey’s lack of probable cause for the search warrant violated her Fourth Amendment rights. A jury found in favor of Massey. Junkert appeals from Judge Mills' (C.D. Ill.) denial of her motion for judgment as a matter of law.

In their opinion, Judges Bauer, Evans, and Tinder affirmed. The Court addressed whether the affidavit provided probable cause for the search, applying a totality of the circumstances test. It focused on the degree of cooperation, the extent of personal observation, the amount of detail, the time interval, and whether the affiant appeared before the judge. The Court found the affidavit severely lacking -- it lacked personal observation, it specified no time period, and the affiant did not personally appear. Even with the other positive aspects of the affidavit, the Court found it "difficult to conclude" that the affidavit provided a substantial basis for the search. Without actually deciding whether probable cause existed, however, the Court addressed qualified immunity. It noted that Massey is personally liable for damages only if courts have held that a materially similar affidavit lacked probable cause or if the affidavit was so lacking that any reasonable officer would have known it lacked probable cause. The Court found neither. Notwithstanding the weaknesses in the affidavit, the Court concluded that there were enough indicia of probable cause to support Massey’s reliance on it. Massey was therefore entitled to a qualified immunity defense.

Tags: Opinion by Tinder, Affidavit, Civil Rights, Constitutional Law, Fourth Amendment, Probable Cause, Qualified Immunity, Search Warrant

Seventeenth Amendment Requires A Popular Election To Fill A Senate Vacancy

Posted on June 22, 2010 by Michael Rigney

JUDGE v. QUINN (June 16, 2010)

For 125 years after the founding of our country, the two senators from each state were chosen by that state's legislature. The Seventeenth Amendment changed that. It provided for the direct election of senators by the people. The Seventeenth Amendment also changed the method by which a Senate vacancy was addressed. It provided that the State executive issue writs of election. It added that the state legislature "may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct." Barack Obama created such a vacancy when, after being elected President, he resigned his Senate seat on November 16, 2008. The governor of Illinois appointed Roland Burris as United States Senator from Illinois to serve out the almost 2 years remaining in Obama's term. Two Illinois registered voters brought suit pursuant to § 1983. They alleged that Illinois' failure to hold an election to fill the vacancy violates the Seventeenth Amendment. Judge Grady (N.D. Ill.) denied the preliminary injunction and dismissed the complaint without prejudice. Plaintiffs appeal.

In their opinion, Judges Rovner, Wood, and Tinder affirmed. The Court concluded that plaintiffs had standing. Their alleged injury was not a general grievance but a denial of their right to vote. The injury was traceable to the Governor's conduct and it could be redressed by a favorable decision. On the merits, the Court first addressed the likelihood of success prong of the preliminary injunction test. It looked to the language of the amendment: a) the principal clause obligated the state's executive to issue a writ of election in the event of a vacancy, b) the proviso clause preserved the executive's pre-amendment power to appoint a temporary replacement so as to maintain the state's representation in the Senate, and c) the Court concluded that the "as the legislature may direct" language in the proviso referred to the legislature's power to control the Senatorial election. Reading the clauses together, the Court held that the amendment requires the state to hold a popular election to fill a vacancy and requires the governor to issue a writ that includes a date for the election. The logistics of that election, however, are left to state law, including the legislature's power over the date of the election. Illinois has set the date for that election as the same date of the general election. The practical impact, therefore, is that the people of Illinois will elect a Senator to serve the remainder of Obama’s term (through January of 2011) and a successor to Obama in the same election. Given that it is plaintiffs' claim that the Governor has not issued that writ, the Court concluded that they had established a strong case of likelihood of success. Unfortunately for them, they had not shown any irreparable harm. Without a showing of irreparable harm, the district court did not abuse its discretion in denying the injunction.

Tags: Opinion by Wood, Constitutional Law, Elections, Seventeenth Amendment

Wisconsin Prohibition Of Judges' Endorsements Of Political Candidates Survives A Balancing Test Analysis

Posted on June 21, 2010 by Michael Rigney

SEIFERT v. ALEXANDER (June 14, 2010)

The State of Wisconsin has two sets (primary and general) of elections during its election years. Non-partisan officeholders, including judges and many county and municipal officers, are elected in the spring. Candidates for these positions are slated without party affiliation. In the fall, elections are held for partisan officeholders, including the sheriff and district attorney. In 2004, the Wisconsin Supreme Court amended the Wisconsin Code of Judicial Conduct to prohibit a judge or judicial candidate from a) being a member of any political party, b) endorsing or speaking on behalf of another candidate, and c) personally soliciting campaign contributions. John Siefert has been a circuit court judge in Wisconsin since 1999. Siefert would like to join the Democratic Party, endorse partisan candidates for office, and solicit contributions for his upcoming campaign. He brought suit pursuant to § 1983 against the members of the Wisconsin Judicial Commission for injunctive and declaratory relief. Judge Crabb (W.D. Wis.) declared the rules unconstitutional and enjoined their enforcement. The Commission appeals.

In their opinion, Judges Flaum, Rovner (dissenting in part), and Tinder affirmed in part and reversed in part. The Court described its task as an attempt to "harmonize . . . two strains of First Amendment law." On the one hand, in White I, the Supreme Court applied strict scrutiny in striking down a code of conduct that prohibited judges from taking positions on legal and political issues. On the other hand, the Supreme Court applied the less stringent Pickering standard in Letter Carriers and Garcetti and balanced the public employee's right to speak against the government's interests. The Court addressed each prohibition separately. With respect to the party membership prohibition, the Court found it content-based and applied strict scrutiny. Although a state does have a compelling interest in the lack of bias in its judiciary, the Court found that the prohibition was not narrowly tailored to serve that interest and struck it down. With respect to the partisan candidate endorsement prohibition, the Court noted a distinction between an endorsement of another and speech regarding a judge's own views. The distinction supported the application of a balancing approach instead of strict scrutiny. In balancing the state's interest in a fair judiciary with the judiciary's interest in endorsing candidates, the Court concluded that the state's interest prevailed. The Court did express its concern that the prohibition only applied to partisan elections. That under-inclusiveness could have invalidated the prohibition under a strict scrutiny approach – but the Court concluded that it did not under the balancing approach. Finally, with respect to the personal solicitation prohibition, the Court noted that Buckley created two approaches. Candidates' spending restrictions are met with strict scrutiny -- candidates' contributions restrictions are met with a less rigorous standard. The personal solicitation prohibition was a contribution restriction and therefore analyzed under the less rigorous approach. The Court found a strong state interest in protecting against the appearance of a quid pro quo that a direct personal solicitation might create. Even though the prohibition does not prevent a candidate from a reviewing a contributor list and applies even to family members, where the risk of a quid pro quo is remote, the Court found that the regulation was closely enough drawn to the state's interest to be constitutional.

Judge Rovner agreed with the panel in its treatment of the party membership restriction and the personal solicitation restriction. She dissented, however, from its treatment of the partisan candidate endorsement restriction. Her fundamental disagreement was with the majority's application of a balancing test. In her view, White I requires the application of a strict scrutiny standard in evaluating a content-based restriction. Under a strict scrutiny approach, the under-inclusiveness noted by the majority opinion is fatal to its constitutionality.

Tags: Opinion by Tinder, Balancing Test, Constitutional Law, First Amendment, Opinion (Dissenting In Part) By Rovner, Section 1983, Strict Scrutiny

Miranda "Violation" Does Not Support An Award Of Damages

Posted on June 18, 2010 by Michael Rigney

HANSON v. DANE COUNTY (June 15, 2010)

The 911 line was dead when the Dane County dispatcher picked it up. The dispatcher called the number back but there was no answer. The police were alerted. When the police arrived at the home of David and Karen Hanson, Karen asked them to leave. She advised the police that she had called 911 but could not remember why -- she also said that she and David had been arguing but that she could not remember why. The officers continued their investigation. They questioned David and Karen separately and also questioned the couple's 15 and 13-year-old daughters. David ultimately admitted that Karen had called 911 after he "bumped" her during a heated argument. The police arrested David and charged him with domestic battery. The charges were dropped when Karen refused to cooperate. David Hanson filed suit pursuant to § 1983 alleging violations of the Fourth, Fifth, and Fourteenth Amendments. Judge Crabb (W.D. Wis.) granted summary judgment to the defendants. Hanson appeals.

In their opinion, Chief Judge Easterbrook and Judges Cudahy and Manion affirmed. The Court first rejected Hanson's argument that the police entry was without probable cause in violation of the Fourth Amendment. The Court concluded that an unanswered 911 callback itself provides probable cause. The Court also rejected the argument that the officers violated the Fourth Amendment by remaining on the premises after Karen asked them to leave. Her demeanor and her obviously false statements that she could not remember why she called or why she and David were fighting support the reasonableness of the officers' actions. The officers also acted reasonably in questioning the children given David and Karen's lack of cooperation. In addition, any substantive due process rights would belong to the children, who are not parties directly or indirectly. Finally, the Court rejected David's claim that his separate questioning amounted to a custodial interrogation and that the officers "violated" Miranda by not delivering its warnings. Although the district court had resolved the issue on qualified immunity grounds by concluding that a reasonable officer would not have found the interrogation "custodial," the Court found that analysis unnecessary. The Miranda doctrine governs the use in court of incriminatory statements. It does not prohibit a compelled statement nor does it allow a claim of damages for the failure to provide the warning.

Tags: Opinion by Easterbrook, Civil Rights, Constitutional Law, Damages

Motorist's Traffic Violations Do Not Support Probable Cause If Unknown To The Police

Posted on June 8, 2010 by Michael Rigney

CARMICHAEL v. VILLAGE OF PALATINE (May 21, 2010)

Palatine police officer Timothy Sharkey stopped an automobile being driven by Albert Carmichael and Keith Sawyer as they returned to their motel parking lot. Sharkey searched both Carmichael and the automobile. He found marijuana and cocaine. When asked why he had pulled them over, Sharkey stated that it was because the automobile lacked a front license plate and had tinted windows. After fellow officer Steve Bushore arrived, Sharkey conducted a search of Sawyer. In the motel parking lot, he pulled Sawyer's pants down and shined a flashlight into his underwear. The officers let Sawyer go but arrested Carmichael on drug charges. They also cited him for having no functioning taillights. In his report, Officer Sharkey made no mention of the tinted windows or absence of front license plate. At a hearing on a motion to suppress the evidence, Sharkey testified that the reason for his stop was the non-functioning tail lights, not the license plate or tinted window. Other testimony established that the tail lights were functioning at the time of the stop. The trial judge suppressed the evidence and all charges were dropped. Carmichael and Sawyer sued the Village and the officers under § 1983. They alleged unreasonable search and seizure, false arrest, and excessive force, as well as state law claims. Judge Kendall (N.D. Ill.) granted summary judgment to the defendants. She concluded, on the search and seizure claim, that the fact that a window was tinted and the front plate was missing provided probable cause. On Sawyer's unreasonable search claim, she concluded that it was constitutional without any detailed examination of the manner in which it was carried out. The court found the remainder of the claims waived. Carmichael and Sawyer appeal.

In their opinion, Judges Ripple, Manion, and Williams affirmed in part and reversed and remanded in part. A traffic stop is reasonable, said the Court, if the police have probable cause to believe that a violation has occurred. The inquiry is an objective one and focuses on what the officer knew at the moment of the stop. Here, the tinted window and missing license plate did constitute moving violations and could have supported a stop of the vehicle. However, the uncontroverted evidence is that Officer Sharkey was not aware of either violation at the time to stop. Therefore, probable cause did not exist. For much the same reason, the Court concluded that Sharkey was not entitled to qualified immunity. The Court also found summary judgment with respect to the search of Sawyer in error. Although the defendants purported to request summary judgment on all counts, they made no mention of this search in their brief in the district court. They bear the initial burden of demonstrating that the summary judgment requirements are met -- they failed to do so. Conversely, the district court was correct in concluding that the plaintiffs waived the remainder of their federal and state law claims because of their perfunctory response to the defendants' request for summary judgment on those issues.

Tags: Civil Procedure, Civil Rights, Constitutional Law, Fourth Amendment, Opinion, Probable Cause, Ripple", Section 1983, Summary Judgment, Unlawful Arrest, Unreasonable Search, by

Complaints About Supervisor In Formal Request For Department Reorganization Are Not Protected Speech Under Garcetti

Posted on June 2, 2010 by Michael Rigney

OGDEN V. ATTERHOLT (MAY 18, 2010)

In late 2006, Paul Ogden was hired as the manager of the Title Insurance Division of the Indiana Department of Insurance. He reported to Carol Mihalik, the head of the Consumer Protection Unit. Mihalik in turn reported to James Atterholt, the Commissioner. From early on, Ogden was critical of Mihalik. He even managed to avoid her and report directly to Atterholt on some of his projects. In September 2007, Ogden took two separate steps related to Mihalik. First, he filed a formal complaint with the State Personnel Division, complaining that Mihalik did not follow hiring regulations, misused funds, and fostered a hostile work environment. A few days later, he delivered a memorandum to Atterholt requesting that his division be removed from the Mihalik’s Unit. Almost all of the reasons in support of his request referred to Mihalik’s incompetence or dishonesty. Many of them repeated items from his formal complaint. He did not refer to his formal complaint, however, nor did the memorandum suggest the need for any discipline. A few hours after receiving the memorandum, Atterholt summoned Ogden to his office and gave him an opportunity to resign or be fired. Ogden resigned -- but then sued the Department, Atterholt, and Mihalik. He claimed a violation of his First Amendment rights under § 1983. Magistrate Judge Magnus-Stinson (S.D. Ind.) granted summary judgment to the defendants. Ogden appeals.

In their opinion, Judges Williams, Sykes, and Tinder affirmed. The only First Amendment issue addressed by the Court was whether Ogden's speech was constitutionally protected. Relying on the Supreme Court's decision in Garcetti, the Court held that it was not. Garcetti tells us that public employees' speech is not constitutionally protected when the statements are made "pursuant to their official duties." Here, the Court concluded that the memorandum was simply a request for departmental reorganization – a request which fell squarely within the scope of his official duties. Although many of the reasons given alleged incompetence and dishonesty on the part of his superior, they were all made in support of this effort to convince Atterholt of the need to reorganize.

Tags: Opinion by Sykes, Garcetti, Civil Rights, Constitutional Law, First Amendment, Labor & Employment, Protected Speech, Section 1983

Illinois Firefighter Has A Property Interest In Employment After One Year Anniversary, Notwithstanding Lengthy Leave

Posted on May 21, 2010 by Michael Rigney

KODISH v. OAKBROOK TERRACE FIRE PROTECTION DISTRICT (May 10, 2010)

Brian Kodish began work as a full-time firefighter and paramedic for Oakbrook Terrace in June of 2003. The Illinois Fire Protection Act prohibits the termination of a firefighter without just cause after the firefighter has "held that position for one year." In March of 2004, Kodish went on leave for a knee surgery. While he was out, he received a letter indicating that the District was going to extend his 12-month probationary period for 90 days. Although the evaluations he had received in his first nine months contained some positive remarks, Kodish was evaluated as "fair" in most categories. He was criticized for a lack of motivation, poor communication skills, and an inability to follow authority. Kodish returned from leave on July 24. On August 11, the District Board decided to terminate his employment. He filed suit against the District under § 1983, alleging a violation of his due process rights. He also alleged that he was fired in retaliation for speaking out on union issues. The district court granted summary judgment to the defendants. Kodish appeals.

In their opinion, Chief Judge Easterbrook and Judges Ripple and Rovner reversed. The Court first addressed the existence of a property right, a prerequisite for the federal due process claim. Of course, Kodish had passed his one-year anniversary before he was fired -- but, because of his four-month leave, he only actually worked a little over ten months. The Court looked to Illinois law to determine whether Kodish was protected. No Illinois court has interpreted the "held that position" language of the Act. The Court looked to Illinois decisions with respect to analogous statutes and concluded that the Illinois Supreme Court would read the plain language of the Act to impose a simple twelve-month employment requirement for the creation of the property interest. The Court rejected defendants' other arguments based on the Illinois Municipal Code and the District’s own Wage and Benefit Policy as either in applicable (in the case of the Code) or not controlling (in the case of the Policy) -- and reversed the district court's conclusion that Kodish had no property interest in continued employment. The Court then addressed Kodish's First Amendment claim. It quickly concluded that Kodish met two of the three requirements of the claim -- that the speech was protected speech and that he suffered a deprivation. In addressing the third requirement -- whether he would have been terminated but for his speech -- the Court reviewed his mixed employment evaluations as well as the evidence of the fire chief's opinion of Kodish's speech. The Court disagreed with the district court's conclusion that the only reasonable conclusion for his discharge was his employment record. Although the Court found that theory "plausible," it also found the alternate theory -- that he was fired for his speech -- one that a reasonable jury could adopt. In concluding that the First Amendment claim should have survived summary judgment, the Court also concluded that Kodish presented sufficient evidence that the fire chief's animus should be attributed to the District under either the "singular influence" or the "motivating factor" test.

Tags: Opinion by Rovner, Civil Rights, Constitutional Law, First Amendment, Labor & Employment, Protected Speech, Retaliation, Statutory Construction

The Isolated Acts Of One Member Of A Multi-Member Board Do Not Support Monell Liability

Posted on May 20, 2010 by Michael Rigney

WRAGG v. VILLAGE OF THORNTON (May 7, 2010)

In 1997, Thornton Village President Jack Swan received an anonymous complaint that a village police officer had molested a minor boy. A few months later, with Swan's knowledge, the officer resigned and sought treatment for a cocaine habit. A few years later, Swan appointed that same officer the Village's fire chief. Soon thereafter, he was found molesting another minor boy, a member of the Village’s fire cadet program. The chief's propensities were the subject of much conversation throughout the department. A few years later, the chief was arrested for molesting yet another boy, also a fire cadet. Swan removed the chief from his post. The cadet sued the Village under § 1983, asserting that the Village retained the fire chief knowing his history of molesting minors and that their deliberate indifference violated his substantive due process rights. The court granted summary judgment to the Village. The cadet appeals.

In their opinion, Chief Judge Easterbrook and Judges Bauer and Wood affirmed. The Court acknowledged that the fire chief was a state actor and the cadet had a substantive due process right not to be harmed by him. Whether the Village was liable under Monell, however, depends on whether the injury was caused by an express policy or a widespread practice, or by a "person with final policymaking authority." Because the cadet alleged neither an express policy or widespread practice, the Court focused on whether the injury was caused by a person with final policymaking authority. The Court identified an issue of fact with respect to that inquiry. The Board of Trustees certainly had final power to appoint and remove the fire chief. The Court found it unclear, however, whether Swan had final authority to retain him. Either way, however, the claim failed. With respect to the board, the cadet presented evidence only with respect to one member. Municipal liability under Monell cannot be based on the isolated act of one member of a multi-member board. With respect to Swan, the Court concluded that the evidence was insufficient for a reasonable jury to find that Swan was on notice that the retention of the chief posed a substantial risk to the cadet. The Court conceded that there were "storm warnings" regarding the fire chief -- but found none of them sufficient to establish the deliberate indifference necessary for municipal liability.

Tags: Opinion by Bauer, Monell, Civil Rights, Constitutional Law, Deliberate Indifference, Fourteenth Amendment, Section 1983

Bivens Action For Damages For Seized Property Is Not The Equivalent Of A Motion For The Return Of The Property

Posted on May 18, 2010 by Michael Rigney

STUART v. RECH (May 5, 2010)

Federal officers executed a search warrant at a company owned by James Stuart. Stuart filed a pro se motion seeking the return of property seized during the execution of the warrant. The matter was assigned to the magistrate judge who issued the warrant. The judge denied the motion, which he had treated as a Rule 41(g) motion for the return of property. A few months later, Stuart filed a second pleading naming only the agent who had applied for the warrant. In that pleading, Stuart sought damages for what he alleged was the unconstitutional seizure of chemical formulas worth millions of dollars. The district court denied the request on the ground that it was the equivalent of the earlier pleading. Stuart appeals.

In their opinion, Judges Bauer, Posner, and Evans affirmed. The Court began, as an aside, by noting that the magistrate judge who denied the original pleading likely had no authority to do so. The appeal, however, related only to the denial of the second pleading. The Court concluded that the district court erred in treating that pleading as an equivalent to the 41(g) motion. The second pleading is nothing more or less than a common law action for damages against a federal officer who is alleged to have violated the Constitution -- more commonly known as a Bivens action. The complaint should not have been dismissed on res judicata grounds. Notwithstanding the lower court’s mistake, the Court affirmed the dismissal on other grounds. The only basis for Stuart’s claim of unconstitutionality is the “frivolous squared” theory that the federal government has no authority outside of federal property. It has no possible merit.

Tags: Opinion by Posner, Bivens, Constitutional Law, FRCP 41(g), Fourth Amendment, Res Judicata

Denial Of Qualified Immunity At Summary Judgment Stage Is Not Appealable When Its Resolution Turns On Issues Of Material Fact

Posted on May 13, 2010 by Michael Rigney

LEVAN v. GEORGE (April 28, 2010)

It all started when Michael Levan got a parking ticket in Peoria. He missed a scheduled hearing and a default judgment was entered. A motion to vacate the default was filed by his attorney. On the day he thought it was scheduled to be heard, Levan went to the courthouse and engaged the city's attorney in conversation. When she advised him that the motion was not scheduled for that day, a confrontation ensued. The parties disagree about how the confrontation escalated. It is undisputed, however, that two court security officers handcuffed and pepper-sprayed Levan, and took him to a holding cell. Levan was later acquitted of disorderly conduct charges. He brought suit against the county and the security officers for false arrest and excessive use of force. A magistrate judge denied summary judgment on qualified immunity grounds, finding genuine issues of material fact. The officers and the County appeal.

In their opinion, Judges Kanne, Wood, and Hamilton dismissed the appeal. The Court first recognized that, although not a final judgment, a denial of qualified immunity at the summary judgment stage can sometimes be appealable. A denial is not appealable, however, when it rests on factual rather than legal grounds. As the Supreme Court stated in Johnson, an appeal is allowed to challenge the "clearly established" law part of the qualified immunity analysis when the legal issues are separable from the factual issues underlying the claim. Here, the magistrate Judge found genuine issues of material fact both with respect to probable cause to arrest and probable cause to use force. The individual defendants' entitlement to qualified immunity turns on the resolution of those issues of fact. The denial is therefore not appealable.

Tags: Opinion by Kanne, Constitutional Law, Qualified Immunity, Summary Judgment

Indiana State Advocacy Agency Has An Implied Right Of Action Under The Protection And Advocacy For Individuals With Mental Illness Act To Seek Injunctive And Declaratory Relief

Posted on May 5, 2010 by Michael Rigney

INDIANA PROTECTION AND ADVOCACY SERVICES v. INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION (April 22, 2010)

In 1986, Congress enacted the Protection and Advocacy for Individuals with Mental Illness Act (the "Act"). The general purpose of the Act was to protect the rights of individuals with mental illnesses and specifically to assist states in operating protection and advocacy systems for those individuals. States are entitled to federal funds if they create such a protection and advocacy system. The system can be either a private entity or an independent state agency. Indiana created Indiana Protection and Advocacy Services ("Services"), an independent agency. The Act gives Services the authority to investigate instances of abuse and requires that Services have access to patient records. In 2006, Services opened investigations into two instances of possible abuse or neglect at the LaRue Carter Memorial Hospital. LaRue Carter is a psychiatric hospital operated by the Indiana Family and Social Services Administration ("FSSA"). In both investigations, Carter withheld patient records requested by Services. Services brought an action against the State of Indiana, FSSA, and three state officials in their official capacities. The complaint sought only injunctive and declaratory relief. The district court granted the relief. A panel of the Seventh Circuit reversed. The panel concluded that Services did not have a private right of action under the Act, could not sue under § 1983 because it was not a "person" under that section, and that the Eleventh Amendment barred the suit. Services sought rehearing en banc.

In their opinion, Chief Judge Easterbrook (dissenting) and Judges Posner (concurring), Flaum, Kanne, Rovner, Wood, Williams, Sykes, and Hamilton affirmed the judgment of the district court as modified to provide relief only against the named state officials. The Court first held that the Eleventh Amendment did not bar the suit. Although that amendment typically prevents a state or its agencies and officials from being sued in federal court by its own citizens, there are exceptions. Under the Ex parte Young exception, a state official who violates a federal law is considered to be acting outside his or her authority and not immune from suit. The required inquiry is whether the complaint seeks prospective relief for an ongoing violation of federal law. The Court found that inquiry satisfied with respect to the individually named state officials, although not with respect to the state and FSSA. Next, the Court concluded that the Act authorized Services’ suit. The Court undertook an analysis of whether Congress intended to create a private right and private remedy in the Act. Citing several provisions of the Act and interpreting the language, structure and purpose of the Act, the Court concluded that Congress did create a private right of action for access to patient records for protection and advocacy systems such as Services. In doing so, it rejected the defendants' arguments that the Act is simply an exercise of Congress's spending power, that the obligation to provide access to patient records is simply a condition inherent in accepting federal funding, and that the only remedy for the violation is to cut off the funding. Finally, on the merits, the Court had little difficulty in rejecting defendants' argument that the peer review records sought by Services were not "records" under the Act. It simply adopted the unanimous treatment given the question by the four circuits that have addressed the issue.

Judge Posner joined the Court's opinion "without reservation" but wrote separately on whether the Act provided a private cause of action. He wrote of several practical considerations that he believed supported the conclusion that the Act contained a private right of action.

Chief Judge Easterbrook dissented. Although he agreed with the conclusion that the Ex parte Young exception to Eleventh Amendment immunity applied, he disagreed with the conclusion that Services had a private cause of action. With respect to § 1983, Services is not a "person" and therefore cannot sue under that section. With respect to the Act itself, Chief Judge Easterbrook concluded that the Supreme Court's cases do not support the conclusion that a right of action can be implied in the Act.

Tags: Opinion By Hamilton, Ex Parte Young Exception, Constitutional Law, Eleventh Amendment, Federal Statute - Other, Implied Cause Of Action, Opinion (Concurring) By Posner, Opinion (Dissenting) By Easterbrook), Rehearing En Banc, Sovereign Immunity

Personal Jurisdiction Over Out-Of-State Defendants Requires Intentional Conduct Aimed At The Forum State And Knowledge That The Injury Will Occur There

Posted on April 26, 2010 by Michael Rigney

TAMBURO v. DWORKIN (April 8, 2010)

John Tamburo designs software for dog lovers. He lives and works in Illinois. One of his products is an online database that provides pedigree information. He created the database by pulling information about pedigrees from other sources on the Internet. The sources of some of the information used by Tamburo were free public websites operated by defendants Henry, Hayes, Mills, and Dworkin. Dworkin is a Canadian resident and citizen -- the others are citizens and residents of the United States. When Henry, Hayes, and Mills discovered what Tamburo had done, they made statements on their own web sites accusing Tamburo of being a thief and of selling stolen goods. They called for a boycott of his products. They even revealed Tamburo's home address and urged their own readers to harass him. Dworkin first demanded that he remove the information from his database. When Tamburo did not do so, Dworkin sent out his own e-mails accusing Tamburo of theft and using the information for an improper purpose. Some of these messages made it to Wild Systems, an Australian company that has its own pedigree software product. Wild Systems forwarded the messages to its own e-mail list. Tamburo sued the four individuals and Wild Systems in Illinois federal court. He sought a declaration that he had violated no federal law and sought damages for antitrust violations, defamation, tortious interference, trade libel, and civil conspiracy. The district court dismissed as to all defendants on the grounds that the court lacked personal jurisdiction. Tamburo appeals.

In their opinion, Judges Bauer, Kanne, and Sykes affirmed in part and reversed in part. As an initial matter, the Court addressed the state and federal antitrust claims and concluded that the district court properly dismissed them, although they should have been dismissed for failure to state a claim. The claims were stated in a completely conclusory fashion and failed to meet the Twombly standard. The Court then turned to personal jurisdiction. Given the Illinois long-arm statute, the question for the Court was whether the defendants had sufficient "minimum contacts" with the forum to support jurisdiction. The Court concluded that none of the defendants had sufficient contacts with Illinois to support a finding of general jurisdiction. In order to establish specific jurisdiction, a) the contacts must relate directly to the challenged conduct, b) the defendant must have "purposefully directed" activities at the forum, and c) the injury must arise out of that activity. The Court looked to the Supreme Court's decision in Calder for guidance on application of the "purposefully directed" test. It found three requirements: a) intentional conduct, b) aimed at the forum state, and c) defendant's knowledge that the injury would be felt in the forum state. The Court found the first element satisfied. With respect to the second and third elements, the Court noted some tension in its decisions applying Calder -- Janmark focused on an injury in the forum state while Wallace required something more than a forum state injury. Here, there is a forum state injury arising from tortious conduct deliberately aimed at a target in the forum state. That satisfies either test and is enough to exercise personal jurisdiction over the individual defendants. With respect to Wild Systems, however, there is no allegation that it acted with knowledge of Tamburo's location or with the purpose of inflicting injury in Illinois. Thus, personal jurisdiction does not exist with respect to Wild Systems. The Court next addressed the "arise out of" requirement. Although it pointed out the conflict among the circuits with respect to the proper test, it found no need to weigh in on the issue since it concluded that the alleged injury "arose out of" the defendants' contacts even under the most rigorous approach. Finally, the Court concluded that the exercise of personal jurisdiction over the individual defendants would not offend the traditional notions of fair play and substantial justice.

Tags: Opinion by Sykes, Constitutional Law, Due Process, Jurisdiction, Long-Arm Statute, Minimum Contacts

Court Upholds Multimillion Dollar False Arrest And Malicious Prosecution Verdict -- But Reverses Substantive Due Process Verdict

Posted on April 23, 2010 by Michael Rigney

FOX v. HAYES (April 7, 2010)

Kevin and Melissa Fox and their children, six-year-old Tyler and three-year-old Riley, lived in a small town in Will County, Illinois, about 60 miles from Chicago. On June 6, 2004, Tyler woke his father up at about 8:00 a.m. and told him Riley was missing -- Melissa had spent the night in Chicago. Riley's lifeless body was found in a nearby forest preserve several hours later. Although the parties’ versions of the investigation vary wildly, the jury could have found the following. Will County detectives, including Scott Swearengen, conducted the investigation. At some point, Swearengen began to suspect Kevin. On October 26, the Foxes were asked to come to the station to talk about the case. Although they thought they were about to receive new information about the murder, they were mistaken. They were immediately separated. Melissa was locked in a waiting area and told that an officer would be with her shortly. Instead, she was left alone for almost 4 hours. Meanwhile, Kevin was taken to an interrogation room where Swearengen accused him of killing Riley. The officers falsely told Kevin that they had fiber evidence implicating him and a surveillance tape showing him driving his SUV during the night. Kevin took a polygraph examination, which the officers told him that he failed. When Melissa offered her love and support to Kevin, Detective Hayes started screaming. He screamed at his fellow officers to remove Melissa from the room, he screamed at Kevin that he was a "f***ing murderer," and he screamed at Melissa. Continuing to use a lot of profanity, he screamed at Melissa that Kevin was a liar and a murderer, that he never loved her, that he killed her daughter, and that she had to "get over it." After that episode, the detectives continued the interrogation of Kevin. Hayes told Kevin that if he did not confess, he would make sure that Kevin was raped every day he was in prison. At one point, Swearengen told Kevin that the state's attorney would give him a deal if he admitted that he accidentally killed his daughter. He told him he would be out on bond the very next day and wood only have to serve 3-5 years in prison. Kevin decided to go along with the story and "confessed." He immediately renounced the confession the next morning when he was allowed to meet with a lawyer. Months later, his defense team had the DNA evidence tested. The test results showed conclusively that the DNA found on Riley's body did not come from Kevin. Kevin was released the next day, after 243 days in jail. Kevin and Melissa brought suit under both § 1983 and Illinois law against several Will County detectives. Kevin's allegations included due process violations, false arrest, malicious prosecution, intentional infliction of emotional distress (IIED), and punitive damages. Melissa's claims include loss of consortium, IIED, and punitive damages. After a six-week trial, a jury awarded Kevin $9.3 million and Melissa $6.2 million. The trial judge struck some of the punitive damage award and dismissed the case against a detective whose estate had settled. The end result was an award of $12.2 million. The detectives appeal.

In their opinion, Judges Flaum, Evans, and Williams affirmed in part and reversed in vacated in part. The central issue on appeal is defendants' argument that they had probable cause to arrest Kevin and are therefore entitled to qualified immunity on all the counts except the IIED claim. In order to resolve that issue, the Court had to identify the earliest time that the jury could have found Kevin to be under arrest and then assess whether a reasonable jury could have found that the defendants lacked probable cause to arrest Kevin at that time. On the first question, the Court had little difficulty identifying a time early in the interrogation when Kevin tried to leave the room and was told to sit down. The fact that he did not specifically ask to leave is only one factor in the analysis. Here the other factors --whether he knew he was a suspect of a crime, whether his movement was limited, whether the officers were engaged in a course of conduct, and whether he was in a private location -- all support a conclusion that he was under arrest. With respect to the second issue, the Court examined the long list of facts that the defendants argued supported probable cause. After it eliminated from the list facts that were disputed, irrelevant, or mischaracterized, the Court concluded that a reasonable jury could have concluded that they fell short of probable cause. On the merits of the defendants' argument that the substantive due process claim could not stand, the Court agreed with the defendants. It is well settled that a substantive due process claim cannot prevail where state law provides an adequate post-deprivation remedy. The state law false arrest and malicious prosecution claims do exactly that here -- the jury verdict on the due process claim must be set aside. The Court next upheld the verdict on Melissa's IIED claim. Although it agreed that the evidence of Melissa's distress was weak, it concluded that Hayes' abuse of authority in a particularly emotional environment was enough to uphold the claim. Finally, the Court addressed certain damage awards. Although it upheld a $2.7 million award for Melissa's loss of consortium because it found a rational connection between the award and the evidence, it concluded that the $1 million award on the IIED claim was excessive because there it lacked such a connection. The Court also concluded that the $1.6 million false arrest award to Kevin was not supported by the evidence since the false arrest award only covered the period of time between his arrest and the first issuance of process (36 hours). Instead of a new trial, however, the Court ordered a remittitur to $150,000 on Melissa's IIED claim and $16,000 on Kevin's false arrest claim.

Tags: Opinion by Evans, Civil Rights, Constitutional Law, Damages, Due Process, Intentional Infliction Of Emotional Distress, Probable Cause, Punitive Damages

A Procedural Due Process Claim Based On The Random Conduct Of A State Actor Must Allege That Post-Deprivation Remedies Are Inadequate

Posted on April 21, 2010 by Michael Rigney

LEAVELL v. ILLINOIS DEPARTMENT OF NATURAL RESOURCES (April 6, 2010)

Eva Leavell and her family own or lease hundreds of oil wells in southern Illinois. Most of the permits are in Ms. Leavell’s name -- but at least one is in the name of her husband, Daniel. Beginning in the year 2000 and continuing for several years, the Illinois Department of Natural Resources conducted a number of hearings to identify abandoned wells that should be plugged. The proceedings resulted in several disputes between the Department and Ms. Leavell, including a state court lawsuit. In 2008, the Department held a similar hearing concerning a well for which Daniel was the permittee. The Department sent a certified letter to Daniel -- but Daniel had already died. No representative was notified and the hearing proceeded. The Department ordered the well plugged. The estate has not challenged that ruling in any administrative or judicial proceeding. Ms. Leavell instead brought a lawsuit as administratrix of his estate, alleging that the Department violated Daniel's procedural due process rights in failing to provide sufficient notice of the 2008 hearing. The district court dismissed on the grounds of issue preclusion, apparently believing that the complaint referred to the same conduct that had already been litigated in state court with respect to the wells for which Ms. Leavell was the permittee. The court also denied Ms. Leavell's motion to reconsider. The court stated that the assertion that Daniel was the permit holder was raised for the first time in the motion to reconsider. Ms. Leavell appeals.

In their opinion, Circuit Judges Ripple and Rovner and District Judge St. Eve affirmed. The Court noted that, after concessions in the briefs and oral argument, the only issue on appeal was whether Leavell stated a due process claim and, if not, whether the dismissal is with or without prejudice. Any procedural due process inquiry requires the identification of the property interest at issue and the necessary process due in connection with the deprivation of that interest. The Court distinguished between procedural due process claims based on established state procedure and those based on the random and unauthorized acts of state actors. With respect to the former, post-deprivation procedures are not necessarily adequate. In those cases, a pre-deprivation hearing may be required. With respect to the latter, however, pre-deprivation hearings are usually impossible because of the inability to predict when the random acts will occur. There, procedural due process requirements are satisfied if the state provides an adequate post-deprivation remedy. Leavell does not assert that the state lacks an adequate notification procedure. Rather, she alleges that a Department employee failed to implement an existing procedure for notifying a permittee of a hearing. Therefore, only a post-deprivation remedy is required. Since she conceded that there are state remedies available and that she has not taken advantage of them, her claim must fail. With respect to whether the dismissal should be with or without prejudice, the Court distinguished between dismissals for failure to exhaust administrative remedies or failure to satisfy a condition precedent and the case before it. Here, Leavell's failure to take advantage of an adequate state court remedy is a failure to allege a necessary element of the cause of action. The claim should be dismissed with prejudice.

Tags: Opinion by Ripple, Adequate State Process, Constitutional Law, Procedural Due Process, Section 1983

Police Use Of Teargas And Flash Bang Devices Was A "Clearly Established" Excessive Use Of Force In 2005

Posted on April 20, 2010 by Michael Rigney

ESTATE OF ESCOBEDO v. BENDER (April 5, 2010)

At 4:24 on a summer morning in 2005, Rudy Escobedo called 911 and told the dispatcher that he was high on cocaine, armed, and suicidal. According to the complaint filed by his estate, the Fort Wayne Police grossly mishandled the situation. It alleges that, over the succeeding five hours, the police: a) engaged the Crisis Response Team and the Emergency Response Team, b) did not follow normal communication protocol, c) never complied with Escobedo's request to have his psychologist at the scene, d) decided to use teargas to force Escobedo from his apartment, e) actually used twelve times the incapacitating concentration of teargas, f) were forced to cut off communication with Escobedo because of the strength of the teargas and the location of the officer in communication with him, g) broke down his apartment door and threw in more teargas and a flash bang grenade, h) broke down the door to his bedroom and threw in more grenades, and i) shot and killed him. Escobedo never threatened anyone other than himself. Escobedo 's estate filed a complaint pursuant to § 1983, alleging that the use of the teargas and flash bang grenades constituted excessive force. On the individual officers' motion for summary judgment, the district court granted in part and denied in part. Its denial of the officers’ summary judgment motion on the excessive force claim was based on the courts' ruling that they were not entitled to qualified immunity. The individual officers appeal.

In their opinion, Circuit Judges Manion (concurring in part and dissenting in part) and Kanne and District Judge Kendall affirmed. The Court noted that the only issue before it was whether the individual officers were entitled to qualified immunity. Furthermore, the officers limited their appeal to the second prong of the Saucier qualified immunity test -- whether the law was clearly established at the time of the events in question that the use of teargas and flash bang grenades under the circumstances presented constituted excessive force. The estate has the burden of meeting the "clearly established" test but can do so in one of two ways: either by presenting a closely analogous case or by establishing that the conduct is so obviously a violation of constitutional rights that any reasonable0 officer would know. Although the Court briefly discussed the latter test, they declined to apply it because of its conclusions with respect to closely analogous case law. The Court addressed the case law with respect to teargas and flash bang grenades separately. With respect to teargas, the Court found controlling precedent and a clear trend in other circuits that the use of teargas is unreasonable when: a) the target is an individual, b) the individual poses no actual threat, c) there are no hostages, d) the individual has not committed a crime and is not attempting to flee, e) the individual, though suicidal, is not homicidal, and f) the individual suffers some incapacity. The Court found those elements present here. With respect to flash bang grenades, the Court noted that it had earlier found the use of such devices reasonable in Molina. It distinguished Molina, however, on the grounds that the officers there had serious personal safety concerns. It then cited dicta from other circuit cases which suggests that the use of the devices might not be reasonable if used in close proximity to a suspect or when the suspect is not dangerous. Although recognizing the relative dearth of precedent in the area and the lack of any precise guidance, the Court concluded that the holdings and dicta in the cases that do exist clearly show that the use of the device in the circumstances of this case is unreasonable.

Judge Manion concurred in part and dissented in part. With respect to the teargas, he agreed with the result although he would have reached it under the patently obvious violation route rather than the closely analogous case law route. He disagreed, however with the Court's conclusion on the use of flash bang devices. Judge Manion criticized the majority's treatment of Molina. Although he agreed that the cases were distinguishable, he considers Molina the leading authority in the circuit on the issue and should not have been limited to its facts in favor of dicta from other cases. Even the dicta in the other cases, he believed, did not come close to meeting the "clearly established" standard.

Tags: Opinion By Kendall, Opinion By Manion (Concurring In Part, Dissenting In Part), Saucier, Civil Rights, Clearly Established Law, Constitutional Law, Excessive Force, Qualified Immunity, Section 1983

Bank's Misapplication Of State Law Is Not Action Taken "Under Color Of State Law" For § 1983 Purposes

Posted on April 16, 2010 by Michael Rigney

LONDON v. RBS CITIZENS (April 1, 2010)

After Chase Bank obtained a judgment against Andrew and Carolyn London, it issued a Citation to Discover Assets to Charter One Bank. The citation prohibited Charter One from allowing any transfer or disposition of the London’s property "not exempt from execution." Included with the citation was a specific notice indicating that Social Security benefits were exempt funds. Charter One froze the London's accounts, including one into which Social Security benefits were deposited electronically. The Londons demanded that Charter One release the exempt funds -- Charter One refused. Over the course of the next several weeks, additional Social Security deposits were made to the account. They also were frozen and their release denied. The Londons filed suit under § 1983, claiming that the bank violated their constitutional right to due process under the Fourteenth Amendment as well as 42 U.S.C. § 407(a). The district court granted Charter One's motion to dismiss, concluding that the temporary freeze did not violate § 407(a) and that the Londons were afforded adequate process by a post-deprivation hearing in state court. The Londons appeal.

In their opinion, Chief Judge Easterbrook and Judges Manion and Evans affirmed. In order to state any claim under § 1983, stated the Court, a plaintiff must allege the deprivation of a right guaranteed by the Constitution or laws and that the deprivation occurred at the hands of a person acting "under color of state law." Under that standard, private persons may not be sued for purely private conduct. Instead, for a private party to be held accountable under § 1983, the deprivation must be caused by the exercise of a right created or imposed by the state. Here, to the contrary, the bank was not following any state-imposed right or rule of conduct. The citation itself restricted its order to funds that were not exempt from execution and provided a notice that Social Security benefits were exempt. The bank's misapplication of the state law directive does not amount to conduct taken "under color of state law."

Tags: Opinion by Manion, Constitutional Law, Due Process, Fourteenth Amendment, Section 1983

Unnamed Class Member Who Wants To Appeal The Denial Of Class Certification Must First Intervene In The District Court

Posted on April 15, 2010 by Michael Rigney

WRIGHTSELL v. COOK COUNTY (March 31, 2010)

Lance Wrightsell is a former prisoner of the Cook County Jail. He brought an action against the County pursuant to § 1983. He alleged that the County's practice of making only one dentist available to the 10,000 inmates of the jail constituted cruel and unusual punishment in violation of the Eighth Amendment to the Constitution. After the district court denied his request for class certification, he agreed to an offer of judgment of $10,000 and renounced his right to appeal. John Smentek, another former inmate, also had a class action pending in the district court -- against the same defendant, alleging the same constitutional violation, and represented by the same attorney. Wrightsell, notwithstanding his renunciation, appeals the district court's denial of class certification. Smentek petitions for leave to intervene in the appeal.

In their opinion, Judges Posner, Wood, and Tinder denied the petition to intervene and dismissed the appeal. The Court addressed some of the complexities involved in class actions and appeals -- for example, the distinction between the named plaintiff as plaintiff and as class representative and the distinction between voluntary and involuntary settlements. Here, the named plaintiff, after denial of class certification, settled his individual claim and waived his right to appeal as class representative. The Court noted competing policy considerations but concluded that Wrightsell resigned his representative status when he waived his right to appeal. Thus, his appeal should be dismissed. The fact that Wrightsell settled, however, does not affect the rights of the other potential class members, including Smentek. But a potential class member who wishes to appeal the denial of class certification must first seek to intervene in the district court and must do so within the time period for filing a notice of appeal. Smentek did not -- his petition to intervene should be denied.

Tags: Opinion by Posner, Appellate Procedure, Civil Rights, Class Actions, Class Certification, Constitutional Law, Intervention, Offer Of Judgment

Prosecutor's Remarks, Although Improper, Did Not Deny A Full And Fair Hearing

Posted on April 14, 2010 by Michael Rigney

BROWN v. CITY OF CHICAGO (March 30, 2010)

Chicago police officers Blackman and Long were on a plain-clothes detail in a Chicago neighborhood when they observed what they believed was an illegal drug transaction. During their pursuit of the suspects, Blackman came across Arthur Brown. According to Blackman, Brown was holding a gun. When he failed to follow the officer's orders to drop it, Blackman shot him several times. According to Brown and another witness, he did not have a gun. Instead, Brown claims that Blackman shot him in the back and then planted a gun in his hand. Brown was charged and convicted of several counts of aggravated assault, aggravated unlawful use of a weapon, and unlawful possession of a weapon. His conviction was affirmed. Nevertheless, Brown brought a § 1983 complaint against Blackman, alleging that Blackman's conduct amounted to the excessive use of force in violation of the Constitution. The district court granted summary judgment to Blackman, concluding that the complaint was barred by collateral estoppel. Brown appeals.

In their opinion, Chief Judge Easterbrook and Judges Manion and Tinder affirmed. The Court noted that Brown conceded that the elements of collateral estoppel existed in the case. Instead, he argued that two exceptions to the rule applied: that he was denied a fair hearing and that new evidence made the rule’s application unfair. The Court agreed that Brown's exceptions to the application of collateral estoppel were recognized in Illinois. However, the Court rejected their application in this case. First, with respect to the fair hearing exception, the Court concluded that the two evidentiary issue rulings at his criminal trial did not deny Brown a fair hearing. The third ground on which he based his “fair hearing” argument was the accusation by the prosecutor that Brown and his attorney made up a theory of conspiracy by police officers in order to “cash in” in a civil action against the City. The state appellate court found the remarks improper but did not reverse the conviction. Likewise, the Court found that the remarks, though improper, did not amount to the deprivation of a fair hearing. Second, with respect to the new evidence exception, the Court concluded that any discrepancy between a witness’ testimony in Brown's criminal trial and his deposition testimony in the § 1983 case was not significant enough to create the type of injustice that would bar the application of collateral estoppel.

Tags: Opinion by Manion, Civil Rights, Collateral Estoppel, Constitutional Law, Evidence, Full And Fair Hearing, New Evidence, Section 1983

School Principal Is Not Required To Conduct An Investigation Before He Swears Out A Criminal Complaint

Posted on March 31, 2010 by Michael Rigney

STOKES v. BOARD OF EDUCATION (March 19, 2010)

Nyokia Stokes has four children who attend the same elementary school in Chicago. One of her children, a third-grade daughter, had a problem with a classmate. Ebony Scott, the classmate's mother, paid a visit to Stokes' home one night and allegedly threatened her. Stokes and her mother, Carnelita Stokes, met with the police and the school principal, Johnny Banks, the next morning. Banks agreed to host a meeting between Stokes and Scott. When Stokes and her mother returned to the school that very afternoon to pick up Stokes' kindergarten daughter, they encountered Ebony Scott and her cousin in the school office. The factual accounts of what happened next vary. What is clear is that Scott, Scott’s cousin, and Stokes were involved in a lengthy physical and verbal altercation. Most accounts agree that Scott was the aggressor and Stokes was the victim. Approximately thirty kindergarten students entered the office during the altercation and became extremely upset. Banks arrived in the office as the altercation was ending. He instructed Scott and her cousin to go into his office and instructed Stokes and her mother to go to another room. Stokes' mother refused to leave and continued yelling at Banks. Banks swore out criminal complaints against all four women and they were arrested. They were released several hours later and the charges against them were dismissed. The Stokes sued Banks and the school district under § 1983, alleging a violation of their Fourth Amendment rights. The district court granted summary judgment to the defendants. The Stokes appeal.

In their opinion, Judges Posner, Manion, and Hamilton affirmed. The gist of the Stokes' complaint is that Banks lacked probable cause to swear out the criminal complaints. The existence of probable cause, therefore, is an absolute bar to recovery. Because the case was decided on summary judgment, the Court examined the record to see if there was a genuine dispute of material fact with respect to the existence of probable cause. A complaining witness is not expected to determine whether a person's behavior satisfies the essential elements of a crime. To the contrary, probable cause involves the exercise of judgment and depends on the facts and circumstances of the case. Here, even resolving factual disputes in the Stokes' favor, the record shows that Banks entered the room and found Stokes involved in a violent and loud altercation. Many young school children were in the same room and visibly upset. Those undisputed facts provide probable cause for Banks to sign a criminal complaint against Stokes. Although Stokes' mother was not actually involved in a physical altercation, she was in the same room and Banks knew that she was Stokes' mother. Her yelling and refusal to comply with Banks' request to leave contributed to the chaos. Thus, Banks had probable cause to sign the complaint against Carnelita . The facts that were developed after the incident supported the Stokes' position that they were the victims of the altercation and that they did nothing to incite it nor did they retaliate. Nevertheless, the Court noted that Banks was not required to conduct an investigation. He was responsible for maintaining order and had to do so quickly. He exercised the judgment of a reasonable person in taking the action that he did.

Tags: Opinion By Hamilton, Constitutional Law, Due Process, Fourteenth Amendment, Fourth Amendment, Probable Cause, Section 1983, Seizure

Summons and Prosecution Without Probable Cause Does Not Violate The Constitution

Posted on March 30, 2010 by Michael Rigney

TULLY v. BARADA (March 17, 2010)

One night a resident of Rush County, Indiana, saw automobile headlights and another light near a bridge several hundred yards from his home. When he heard a shot coming from the same direction, he called the sheriff. He called the sheriff a second time when he heard a second shot. In responding to the report, Sheriff Chandler stopped a vehicle occupied by Michael Tully and a friend. There was a spotlight, a rifle, and a dead raccoon in the car. Both boys responded "yes" when Sheriff Chandler asked if they knew that shooting from a roadway is wrong. The county prosecutor, Paul Barada, charged both boys as juveniles with "shooting on or across a public highway." A trial court adjudicated Tully as a delinquent -- the appellate court reversed. Tully brought an action under § 1983 against Barada and the probation officer upon whose report his complaint was based. He alleged a constitutional right not to be summoned into court and prosecuted without probable cause. The district court granted defendants' motion to dismiss, concluding that there is no such right. Tully appeals.

In their opinion, Circuit Judges Bauer and Wood and District Judge Kennelly affirmed. The Court first noted that the Supreme Court has not spoken on the possibility of a right not to be prosecuted without probable cause. The Courts of Appeals that have spoken have taken various approaches. In fact, the issue is infrequently presented because prosecutors generally claim absolute immunity. Here, the Court noted that defendants waived not only their affirmative defense of absolute immunity, but also the affirmative defenses of the existence of probable cause and res judicata. Having been required to reached the merits, the Court concluded that there is no federal constitutional right under either the Fourth or Fourteenth Amendment not to be summoned into court and prosecuted without probable cause. Being summoned into court is not a "seizure" of Tully under the Fourth Amendment -- his state court vindication was due process under the Fourteenth Amendment.

Tags: Opinion by Bauer, Constitutional Law, Fourteenth Amendment, Fourth Amendment, Malicious Prosecution, Probable Cause, Section 1983

Evidence That Supports An Inference Of Principal's Intentional Discrimination Is Sufficient To Establish A Constitutional Violation And Defeat Qualified Immunity

Posted on March 26, 2010 by Michael Rigney

SANDRA T.E. v. GRINDLE (March 17, 2010)

Three female elementary school classmates at Pershing Elementary School attended a seminar on "inappropriate touching" at their school in May of 2001. After the seminar, they wrote a short letter to the presenter stating that they were uncomfortable with the conduct of their band teacher. The presenter shared the note with Karen Grindle, Pershing's principal. Although Grindle met with the band teacher, the students, some parents, and the school's social worker, the accounts of their meetings varied. The allegations are that Grindle downplayed the significance and the seriousness of the accusations. Additional incidents surfaced in January and April of the following year. Again, Grindle is alleged to have minimized the significance of the incidents. One of the students who wrote the original letter in 2001 revealed to her mother, in 2005, her version of what happened. Her mother informed the police, a criminal investigation was launched, other victims came forward, and the band teacher pleaded guilty to multiple counts of aggravated criminal sexual abuse. Several of the children and their parents filed an action pursuant to section 1983, alleging a violation of their equal protection and substantive due process rights. The district court granted summary judgment on the section 1983 claim to all defendants except Grindle and the band teacher. Grindle appeals.

In their opinion, Judges Flaum, Rovner, and Hamilton affirmed. The basis of Grindle's appeal is her claim to qualified immunity. The Court recited the familiar two-part test: whether a constitutional right was violated, and whether the right was "clearly established" at the time of the conduct. With respect to the equal protection claim, the Court concluded that well-developed law at the time of Grindle's conduct held that a supervisor could be liable for deliberately ignoring an equal protection violation of her subordinate. In addition, the sexual harassment by the subordinate was a well-established equal protection violation. The Court concluded that plaintiffs presented sufficient evidence from which a jury could infer that Grindle intentionally discriminated against the girls to withstand summary judgment. With respect to the substantive due process claim, Grindle argued that she had no duty to protect the students from the abuse at the hands of the band teacher. The Court agreed that state officials do not generally have an obligation to protect citizens from violence, but noted the "special relationship" exception to that rule. Although the Court agreed that it had once rejected the "special relationship" theory in the student context, it also noted that the Third Circuit held otherwise in Stoneking. The Stoneking decision has been recognized in the circuit as one that is viable and, in fact, has been followed on several occasions in the district courts of the circuit. The Court concluded that a reasonable elementary school principal should have concluded that she could be liable for ignoring, or even covering up, a teacher's sexual abuse of a student. Finally, the Court noted that the plaintiffs allege that Grindle's own actions establish the constitutional violation, and not just her mere failure to act or prevent. Thus, they meet the test of Iqbal.

Tags: Opinion by Flaum, Civil Procedure, Civil Rights, Constitutional Law, Equal Protection, Qualified Immunity, Section 1983, Substantive Due Process

Full Faith And Credit Clause Does Not Empower One State To Interfere With The Police Power Of Another

Posted on March 24, 2010 by Michael Rigney

ROSIN v. MONKEN (March 17, 2010)

In 2003, Mitchell Rosin pleaded guilty in New York to a charge of sexual abuse in the third degree, a Class B misdemeanor. The prosecutor agreed to strike from the standard plea agreement a paragraph that would require Rosin to register as a sex offender and otherwise comply with the Sex Offender Registration Act. At the time of the plea agreement, Rosin was actually a resident of Oak Park, Illinois. In 2008, the Oak Park police insisted that he move from the area and register as a sex offender in Illinois. Rosin filed suit against the public officials who are responsible for enforcing the registration obligations. He alleged, under §1983, that the defendants' actions violated the Full Faith and Credit Clause of the Constitution. The district court granted the defendants' motion to dismiss. Rosin appeals.

In their opinion, Judges Cudahy, Manion, and Williams affirmed. The Court first the reasonableness of Rosin’s position that the Full Faith and Credit Clause requires Illinois to recognize a New York probation order. Unfortunately for Rosin, however, the Court noted that the order actually contained no language relieving him of an obligation to register. As part of the plea agreement, a paragraph was simply excised from the standard form. It was not replaced with any affirmative language. Therefore, held the Court, there was no order to recognize. Even if the elimination of the paragraph is treated as an affirmative act on the part of New York to relieve Rosin of his registration requirement, the Court concluded that it could not prevail. The Full Faith and Credit Clause grants national force to the judgment of one state. The Clause cannot, however, allow one state to interfere with the affairs of another. New York has no authority to interfere with the police power of the state of Illinois and dictate its approach to sex offenders.

Tags: Opinion by Cudahy, Constitutional Law, Full Faith And Credit Clause, Police Power

Acceptance of Offer of Judgment From One Defendant Did Not Moot Other Claims

Posted on March 15, 2010 by Michael Rigney

MINIX v. CANARECCI (February 26, 2010)

While on leave from a mental hospital where he was a patient, Gregory Zick was arrested and incarcerated in the St. Joseph County Jail. The jail provided medical and mental health services through contracts with third-party vendors Memorial Home Care and Madison Center. Jail personnel became aware during Zick's booking that he had attempted suicide in the past and was taking medications to treat his suicidal thoughts. Zick was originally put in medical segregation and on suicide watch. He was transferred into the general population, however, a few days later after he denied having suicidal thoughts. About a month later, he was placed back in medical segregation after he refused to take his medication and a jail officer noticed a razor blade missing. Again, after a few days, he was released from medical segregation because he was alert and denied thoughts of suicide. Later that night, he hanged himself with a bed sheet. Cathy Minix, his personal representative, brought an action pursuant to § 1983 against the Sheriff, the medical providers, and several jail employees. She alleged violations of the Eighth and Fourteenth Amendments based on the defendants' display of deliberate indifference. The district court granted summary judgment to all defendants except the Sheriff. Minix then accepted an offer of judgment from the Sheriff. She appeals the summary judgment rulings in favor of Memorial Home Care and its employee Dr. David, Madison Center and its employee Christine Lonz, and the supervisor of the nursing staff, Jeanne James.

In their opinion, Judges Bauer, Kanne, and Tinder affirmed. The Court first addressed its jurisdiction, in light of the offer of judgment and its acceptance. Since the claim against the Sheriff was against him in his official capacity, and therefore could not have included punitive damages under § 1983, the punitive damage claims against the other defendants present a live controversy, even if the acceptance of the offer of judgment limits additional compensatory damages. On the merits, the Court first identified the two elements of an inadequate medical care claim under the Eighth or Fourteenth Amendment: a substantial risk to one's safety because of an objectively serious harm, and deliberate indifference to that risk. A jail suicide case automatically satisfies the first element. The second element requires that each defendant know that there is a substantial risk of suicide -- and intentionally disregard it. The Court addressed each defendant under that standard and found summary judgment proper in each case: a) Lonz was unaware of Zick’s suicidal history or thoughts, b) there was no evidence that Madison Center adopted or condoned any unconstitutional policy and there was no causal link between any Madison Center practice and the suicide, c) Zick's behavior in segregation did not provide Nurse James with actual knowledge of a substantial risk of suicide, d) Dr. David was not directly involved in Zick's treatment, and e) there was a lack of evidence that Memorial Home condoned or adopted an unconstitutional practice.

Tags: Opinion by Tinder, Civil Procedure, Civil Rights, Constitutional Law, Deliberate Indifference, Eighth Amendment, Fourteenth Amendment, Jurisdiction, Mootness, Offer Of Judgment, Section 1983

Investigator Who Withholds Innocent Explanation Entitled To Qualified Immunity Where It Was Not Material To Probable Cause

Posted on March 15, 2010 by Michael Rigney

WHITLOCK v. BROWN (February 24, 2010)

The Whitlocks were camping with their daughter at the Indiana Dunes State Park in July of 2005. They came across some personal property at what appeared to be a deserted camp site. They put the items in their vehicle and told a neighboring camper that they would turn it in to park rangers. Instead of turning it in immediately, however, they left the park and went shopping. Upon their return, they left a voicemail for the property owner (having obtained his number from information found in the property) advising him that they had his property and were going to leave it with the park ranger. The owner of the property had already reported it missing and park authorities were investigating. When the Whitlocks eventually turned in the property, they were accused of theft. The investigation confirmed the Whitlocks' explanation. State investigator Brown prepared a case report and an "Affidavit for Probable Clause." He sent the affidavit to the local county prosecutor's office, and there is a dispute over whether he attached his case report to it. The Whitlocks were charged with conversion and an arrest warrant was issued. When they were stopped for a traffic violation a month later, they were arrested and held in jail for four days before the prosecutor dropped the charges. The Whitlocks sued Brown under § 1983, specifically alleging that he withheld their explanation for why they held the property for so long from his case report or application for a warrant. The district court concluded that Brown did violate their Fourth Amendment rights by withholding the exculpatory information but also concluded that he was entitled to qualified immunity because a reasonable officer could have believed that probable cause to arrest the Whitlocks existed. The Whitlocks appeal.

In their opinion, Circuit Judges Posner and Sykes and District Judge Dow affirmed. Qualified immunity, stated the Court, involves two inquiries: whether there is a constitutional violation and whether a reasonable officer, considering clearly established law, would have known his actions were unconstitutional. Here, the claim is that Brown intentionally or recklessly withheld exculpatory information from the prosecutor, which could overcome the general presumption of the validity of the warrant. The information omitted, however, must be material to the existence of probable cause. The Court first addressed the alleged withholding of the case report itself. The district court had concluded that Brown withheld the report, inferring so from its absence from the prosecutor's file. The Court disagreed. Brown testified that he had submitted the case report. Although self-serving, the testimony was not speculation and was based on Brown's personal knowledge. In contrast, the Whitlocks presented no evidence or reasonable inference that the report was not sent. Although therefore concluding that the report itself was not withheld, the Court also considered an omission in the report -- Brown's failure to include the Whitlock's innocent explanation for why they did not turn in the property immediately. The Court turned to the materiality of that missing information. The statute upon which the warrant was based prohibits "unauthorized control over property" of another. It does not require an intent to permanently deprive. Although the Court hypothesized a situation in which the explanation could be material under a theory of implied consent from the owner of lost property, it found no such theory recognized under Indiana law. The Court concluded that a reasonable officer would not have known if the innocent explanation was material to probable cause and that Brown was therefore entitled to qualified immunity.

Tags: Opinion by Sykes, Civil Rights, Clearly Established Law, Constitutional Law, Evidence, Fourth Amendment, Inference, Materiality, Probable Cause, Qualified Immunity, Section 1983

Class-Of-One Equal Protection Claim Fails Without Evidence Of Similarly Situated Person

Posted on March 1, 2010 by Michael Rigney

REGET v. LA CROSSE (February 8, 2010)

John Reget has operated an auto restoration and body shop business in La Crosse, Wisconsin for several decades. For almost as long, he and the City have been at odds. In 1980, the City condemned his building and gave him the funds to relocate and remodel his current building. In the early 1990s, the City cited Reget a number of times for ordinance violations pertaining to junk dealers. All the citations were ultimately dismissed. In the mid-1990s, the City threatened to rezone the area of Reget's current building. The move would have forced Reget to relocate yet again. The City backed down -- but only after Reget promised to comply with the ordinances, build a fence, and limit his nighttime operations. Both sides claim the other failed to live up to its bargain. Reget filed a lawsuit alleging a violation of his Equal Protection rights as a result of the City's selective enforcement of its ordinances. The district court granted summary judgment to the City. Reget appeals.

In their opinion, Chief Judge Easterbrook and Judges Williams and Sykes affirmed. The Court noted that Reget's Equal Protection claim was of the class-of-one variety. For such a claim to prevail, a plaintiff must prove that he or she has been treated differently than others similarly situated and that no rational basis exists for such differentiation. The Court concluded that he failed to identify a similarly situated business with respect to any of his claims of discriminatory treatment.

Tags: Opinion by Sykes, Class-of-One, Constitutional Law, Equal Protection, Similarly Situated

Government Employee Who Serves "At The Pleasure" Has No Property Interest In Employment

Posted on February 26, 2010 by Michael Rigney

COVELL v. MENKIS (February 8, 2010)

The Illinois Deaf and Hard of Hearing Commission (the "Commission") was created several years ago to provide services for and advocate on behalf of the hard of hearing. Gerald Covell served as its Director from 1998 until 2003. In July of that year, the Commissioners terminated him. Covell filed suit under § 1983, alleging that defendants violated both his property and liberty interests. Specifically, he alleged that he was let go without any pre-or post-termination process in violation of a property interest. He also alleges that defendants circulated false information about him, without providing him an opportunity to clear his name, in violation of his liberty interest. The district court granted summary judgment to the defendants, concluding that Covell had no property interest in this position and that he failed to demonstrate that any particular defendant circulated negative information. Covell appeals.

In their opinion, Judges Bauer, Manion and Williams affirmed. The Court first addressed the existence of a property interest. Although a property interest can arise from state law, a person must identify a specific statute, rule, or contract that limits the ability of the state to terminate him. The rules governing Covell's position states that he "shall serve at the pleasure of the Commission." The Court rejected Covell's position that an inconsistent right was somehow incorporated into the regulation by its reference to the Personnel Code. Since he had no property interest, he had no right to due process. With respect to his liberty interest claim, the Court stated that the plaintiff must show that he was stigmatized by publicly disclosed information and that he suffered a tangible loss. Specifically, the plaintiff must show that a named defendant made the public disclosure. Here, Covell contends only that the disclosure was made by someone in the government. Without evidence that the disclosure was made by a named defendant, Covell's claim fails.

Tags: Opinion by Bauer, Constitutional Law, Due Process, Labor & Employment, Liberty Interest, Property Interest, Section 1983

Court Declines To Revisit Newsome Malicious Prosecution Holding

Posted on February 26, 2010 by Michael Rigney

PARISH v. CHICAGO (February 3, 2010)

Michael Parish was arrested in May of 2005 and held in custody until June of 2007, when he was acquitted of a murder charge. Parish brought suit against the City of Chicago and several police officers under § 1983, claiming malicious prosecution in violation of the Fourth Amendment. He alleged, among other findings, that the officers suppressed favorable evidence, prepared false reports, and fabricated evidence. Parish conceded in the district court that the prevailing Seventh Circuit precedent of Newsome precluded his claim. The district court dismissed. Parish appeals

In their opinion, Judges Coffey, Evans, and Williams affirmed. In Newsome, the Seventh Circuit held that the existence of a state law malicious prosecution claim precludes a constitutional tort under the due process clause. Parish concedes as much but seeks reconsideration of Newsome in light of a footnote in the Supreme Court's subsequent opinion in Wallace. In that footnote, the Supreme Court stated that it had never and was not evaluating a §1983 Fourth Amendment malicious prosecution claim. The Court noted that it had already once rejected an invitation to revisit Newsome in Johnson v. Saville. It saw no reason to do so now. However, as an aside, the Court stated that Newsome did not preclude a Brady-type due process claim. Given Parish's allegations, he may well have had such a claim after his acquittal.

Tags: Opinion by Coffey, Civil Rights, Constitutional Law, Fourth Amendment, Malicious Prosecution, Precedent

Commerce Clause Prohibits State From Regulating Out-Of-State Loans To Its Residents

Posted on February 25, 2010 by Michael Rigney

MIDWEST TITLE LOANS v. MILLS (January 28, 2010)

Midwest Title Loans is a "title lender." Title loans are high-cost, high-risk loans. Car owners, generally from the lower income segment of the population, pay triple digit interest rates to borrow against their car titles. Midwest is located in Illinois but loaned to Indiana residents. All the loans were made in-person in Illinois. Midwest did advertise in Indiana and, when necessary, executed repossessions in Indiana. The State of Indiana considered Midwest's practices predatory. In 2007, it amended its Uniform Consumer Credit Code to provide the a loan is deemed to occur in Indiana if an Indiana resident enters into such loan with an out-of-state company that advertised or solicited in Indiana. Once a loan is deemed to occur in Indiana, the lender is subject to the provisions of the code, including interest rate caps and license requirements. Indiana advised Midwest of this amendment in August of 2007. Midwest was not licensed in Indiana and its products exceeded the interest rate cap. Midwest brought suit under §1983, alleging that the amendment violated the commerce clause. The district court permanently enjoined application of the amendment. Indiana appeals.

In their opinion, Judges Posner and Flaum and District Judge Der-Yeghiayan affirmed. The Court noted that the commerce clause of the Constitution has been interpreted to preclude states from erecting barriers to interstate trade. The clause is frequently applied when a state legislates in favor of its in-state businesses. Although Indiana is not discriminating in favor of its local business, that does not end the inquiry. First, a non-discriminatory statute that protects a legitimate local interest will be upheld unless the effects on interstate commerce are clearly excessive as compared to the local benefits. But second, a non-discriminatory statute that actually regulates out-of-state activities will not be upheld regardless of the balancing of the local interest. The Court concluded that out-of-state regulation was present here. Every Midwest loan was made in Illinois by a check drawn on an Illinois Bank, title was transferred in Illinois, and payments were received in Illinois. The facts that the proceeds were probably spent in Indiana, that Midwest advertised in Indiana, and that the collateral was generally located in Indiana did not change the Court’s conclusion.

Tags: Opinion by Posner, Balancing Of Interests, Commerce Clause, Constitutional Law, Uniform Consumer Credit Code

District Court Improperly Excluded Expert Medical Testimony

Posted on February 24, 2010 by Michael Rigney

GAYTON v. MCCOY (January 28, 2010)

India Taylor had a life-threatening heart condition. She took six different medications to treat the condition. The six drugs were not the only drugs Taylor took – she was also a heroin user. Taylor was arrested on four different occasions in the summer of 2003. As a result, personnel at the Peoria County Jail became very familiar with her condition and her medications. Both her medical history and her prescriptions became part of her file. She was arrested again in October. Because she complained of chest pain, she was taken for a medical examination. Nurse Radcliffe knew her history and medications and asked her brother to bring her medications to the jail. She also made a notation that Taylor should see the doctor the next day if her medications did not arrive. The next day, Taylor complained of nausea on multiple occasions. By mid-afternoon, she was vomiting violently. The guards called the nurse, and even collected her vomit in a bag. Nurse Hibbert suspected that Taylor was faking her symptoms in order to get drugs and refused to see her. Although her name was on the list to see the doctor the next day, she died during the night. Lester Gayton, her brother and administrator of her estate, brought a wrongful death action pursuant to §1983. He named the sheriff, the jail superintendent, the doctor, three nurses, and the outsourced health care provider at the jail. The district court excluded the testimony of the plaintiff's medical expert and granted summary judgment to the defendants. Gayton appeals.

In their opinion, Judges Flaum and Williams and District Judge Lawrence affirmed in part and reversed in part. The Court started with the district court’s exclusion of the medical expert, Dr. Weinstein. First, the Court concluded that the lower court erred in finding Weinstein unqualified to opine on the cause of death. In fact, Weinstein did not testify as to cause of death -- he simply adopted the other experts' conclusion that Taylor died of nonspecific heart failure. Next, the Court stated that the fact that Weinstein was not a cardiologist did not make him unqualified. Finally, with respect to the reliability of his specific conclusions, the Court considered each conclusion individually: a) the lower court properly barred the conclusion that Taylor might have lived had she been given her medication since he gave no basis for his opinion and claims no specific expertise regarding the medication, b) the court improperly barred his testimony that the combination of her vomiting and certain medications might have contributed to her heart failure since that opinion requires no specialized expertise, and c) although the court did not address it, Weinstein is an expert in prison healthcare and is qualified to give his opinion that prison medical personnel fell short of accepted standards of medical care.

The Court next addressed summary judgment. A cause of action for failure to provide adequate medical care requires a showing of a serious medical condition, deliberate indifference, and causation. The deliberate indifference element itself requires knowledge of the health risk and a disregarding of that risk. Given Taylor's serious heart condition, her complaints of chest pain and nausea, and her excessive vomiting, the Court had little difficulty in finding enough evidence of a serious medical condition to overcome summary judgment. On the issue of deliberate indifference, the Court analyzed each defendant separately: a) summary judgment was proper for the sheriff, the doctor, and the superintendent since they had no contact with Taylor and did not know of her request for medical attention, b) summary judgment was proper for the outsourced medical care organization since the plaintiff conceded that the medical policies were sufficient, thus precluding Monell liability, c) summary judgment was proper for two of the three nurses in that one acted reasonably and the other, although negligent, was not deliberately indifferent, and d) summary judgment in Nurse Hibbert’s favor was improper since a jury could find that her refusal to see Taylor despite strong indications that she was in need of medical treatment amounted to deliberate indifference. Finally, the Court also found sufficient evidence in the record on which a jury could find proximate causation between Nurse Hibbert’s conduct and a delay in treatment that exacerbated Taylor’s suffering.

Tags: Opinion by Williams, Monell, Civil Rights, Constitutional Law, Deliberate Indifference, Evidence, Expert Testimony, Proximate Cause, Section 1983

Rooker-Feldman Doctrine Applies When Relief Requested Would Effectively Reverse State Court

Posted on February 11, 2010 by Michael Rigney

GILBERT v. ILLINOIS STATE BOARD OF EDUCATION (January 11, 2010)

For almost 20 years, Robert Gilbert was a high school social studies teacher -- and a highly regarded one at that. Apparently, he performed better as a teacher than as a colleague or employee. The school district eventually fired for insubordination. Gilbert contested his discharge administratively. After the district presented its evidence at the hearing, the hearing officer granted Gilbert's request to find in his favor. On review, the state appellate court reversed and remanded with instructions to reinstate the termination. Gilbert, concerned that the order would not allow him to reconvene the hearing and present his evidence, sought reconsideration in the appellate court and review in the state Supreme Court. He was unsuccessful. Gilbert then attempted, on remand to the circuit court, to get the state to reconvene the hearing. Again, he was unsuccessful. Instead of appealing that order, Gilbert filed suit in federal court. He asserted a due process claim and sought an injunction to reconvene the hearing and a declaration that his due process rights had been violated. The court dismissed the request for injunctive relief under the Rooker-Feldman doctrine, later (after a replacement of judge) dismissed the claim for declaratory relief for lack of standing, and denied several motions to amend. Gilbert appeals.

In their opinion, Chief Judge Easterbrook and Judges Posner and Wood affirmed. The Court agreed that the claim for an injunction was barred by the Rooker-Feldman doctrine. That doctrine prevents a lower federal court from reviewing the decisions of a state court. Here, the Court concluded that granting Gilbert his requested relief would reverse the effect of the state court decision. Even Gilbert's argument that the state appellate court's decision did not preclude a reconvening of his hearing was presented to and rejected by the state court. With respect to the declaratory count, Gilbert did not contest the soundness of the ruling. He only argued that the second judge violated law-of-the-case principles when he dismissed the declaratory count after the first judge chose not to. The Court first noted that the law-of-the-case doctrine has no applicability on appeal. At the district court level, it is a deferential principal discouraging a later judge from reconsidering a prior judge’s ruling. On appeal, however, the Court simply decides whether the ultimate result was correct. As an aside, the Court also noted that the law-of-the-case principal has less applicability when a jurisdictional issue is involved and when the first judge never directly addressed the issue, both of which are present here. Because Gilbert did not even challenge the correctness of the dismissal of the declaratory count, the Court did not address the merits.

Tags: Opinion by Wood, Rooker-Feldman, Civil Rights, Constitutional Law, Jurisdiction, Law-Of-The-Case Doctrine

Union Grievance Is Not Protected Speech When It Concerns a Matter of Purely Private Interest

Posted on February 9, 2010 by Michael Rigney

BIVENS v. TRENT (January 6, 2010)

In his position as an officer in the Illinois State Police, Jimmy Bivens was responsible for the operations of an indoor firing range. He performed his job well. He greatly improved the conditions at the range and was commended for his work. After a few months of working at the range, however, Bivens began to feel quite ill. He was concerned that his symptoms were related to lead exposure at the range. Blood tests revealed highly elevated levels of lead. Bivens filed a union grievance, alleging unsafe working conditions. Within days, the range was tested and closed for remediation. Bivens' blood lead levels returned to normal within a few weeks and he returned to work. He only worked for one week, however, claiming that he continued to experience health problems. The State Police arranged for independent examinations by a neurologist and psychiatrist. Both found Bivens' health to be normal and approved his return to work. The State Police terminated Bivens' disability benefits. Bivens brought suit pursuant to §1983, alleging that his superiors violated the First Amendment by retaliating against him for filing the union grievance. The district court granted summary judgment to the defendants on the ground that his speech was not protected because it was part of his official duties. Bivens appeals.

In their opinion, Judges Posner, Manion and Evans affirmed. One of the several elements of Bivens' §1983 claim is that he engaged in speech protected by the Constitution. The Court agreed with the district court that Bivens had an obligation, as part of his job, to report his concerns about lead contamination. It also agreed that any such reports to his superiors would not be protected under the Supreme Court's Garcetti decision. Here, however, the speech was not through Bivens' chain of command but as a union grievance. The Court was unwilling to conclude, because of the availability of an alternative holding, that the union grievance could not be protected speech. To be protected, the speech must also address a matter of public concern. The Court looked to the content, the context and the form to determine whether the speech addressed a matter of public concern. The court concluded that the context -- Bivens' own illness -- and the form -- an internal union grievance -- were more consistent with the vindication of a private, rather than a public, interest. Although the content referenced a subject of potential public interest, the Court concluded that Bivens was not attempting, by his speech, to bring this safety issue into the open. Being purely private, the speech was not protected and retaliation claim fails.

Tags: Opinion by Manion, Civil Rights, Constitutional Law, First Amendment, Garcetti, Protected Speech, Retaliation, Section 1983, Union Grievance

"Insubstantial" Federal Claims Do Not Provide A Basis For Supplemental Jurisdiction

Posted on February 5, 2010 by Michael Rigney

AVILA v. PAPPAS (January 4, 2010)

Maria Avila was already in trouble. Her employer, the Cook County Treasurer's Office, was about to conduct a disciplinary hearing. Avila made it worse when she told one of her coworkers that she might "go postal." Her coworker advised her superiors. They not only added a disciplinary count for the implied threat and fired her but alerted the authorities. Avila was criminally prosecuted. The prosecutor charged a felony, taking the position that one of the targets of Avila's threat was a public official. Avila was acquitted, the court holding that he was not a public official. Avila filed suit against her superiors pursuant to §1983, alleging both constitutional violations and state law malicious prosecution. Although the court dismissed the federal counts, it retained the state law claim under supplemental jurisdiction and resolved it on the merits in favor of the defendants. Avila appeals the judgment on the state law claim.

In their opinion, Chief Judge Easterbrook and Judges Wood and Tinder vacated and remanded with instructions to dismiss for want of jurisdiction. The Court first addressed its jurisdiction. Although Avila asserted four federal law theories, the Court emphasized that a federal claim must have substance to create a basis for federal jurisdiction. The Court concluded that the federal claims -- substantive due process, conspiracy, failure to train, and equal protection -- were frivolous. The Court principally relied on the Supreme Court's decision in Albright and the Court's own decision in Newsome, holding that malicious prosecution does not violate the Constitution if state law recognizes it as a tort (which Illinois does).

Tags: Opinion by Easterbrook, Civil Rights, Constitutional Law, Due Process, Equal Protection, Jurisdiction, Malicious Prosecution, Supplemental Jurisdiction

City's Unsupported Demand For Special Use Permit Is A "Substantial Burden" Under RLUIPA

Posted on February 4, 2010 by Michael Rigney

WORLD OUTREACH CONFERENCE CENTER v. CITY OF CHICAGO (December 30, 2009)

In Chicago, the World Outreach Conference Center ("WOCC") operates a community center. It is a Christian organization, one of whose goals is to assist and provide relief to the needy and suffering. WOCC purchased the center in 2005 from the YMCA. Although the land was rezoned several years ago, YMCA's operations were a legal nonconforming use. WOCC wants to operate the building by renting out its many apartments – just as the YMCA did. The Center did need a single-room-occupancy (SRO) license to operate. Apparently because an alderman had wanted a financial backer to acquire the property, the City refused to grant the license. WOCC brought suit under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), challenging the City's refusal to grant the license. Although the City eventually did grant the license, the suit continued with its claim for damages. The court dismissed the complaint. WOCC appeals.

In Peoria, the Trinity Evangelical Lutheran Church purchased property adjacent to its church. It wanted to raze the building in order to build a family center. The City, in response to a neighborhood group’s application, designated the building a landmark and blocked the demolition. Trinity brought suit under RLUIPA, alleging that the landmark designation imposed a substantial burden on religious activities. The court granted summary judgment to Peoria. Trinity appeals.

In their opinion (in these consolidated cases), Judges Cudahy, Posner and Rovner affirmed in part and reversed in part in Chicago and affirmed in Peoria. RLUIPA prohibits government land-use regulation that imposes a substantial burden on religious activities unless it is in support of a compelling government interest and is the least restrictive means to the end. It also prohibits non-equal or discriminatory treatment directed at a religious assembly through land-use regulation. The Court first addressed and rejected Chicago’s argument that RLUIPA exceeds Congress’ authority, relying on the enforcement clause of the Fourteenth Amendment as well as Congress’ power to regulate interstate commerce. On the merits in WOCC, the Court concluded that the dismissal of WOCC’s substantial-burden claim was erroneous. WOCC was entitled to operate without the special use permit demanded by the City and the City had no basis for refusing the SRO license. The burden was substantial and there was no compelling government interest. The Court also: a) affirmed the dismissal of the discrimination claim (WOCC was badly treated – but it had nothing to do with religion), b) reversed the dismissal of the equal protection claim (on a class-of-one theory), and c) affirmed the dismissal of the damages claim for violation of the Chicago Zoning Ordinance.On the merits in Peoria, the Court concluded that the burden imposed on Trinity did not reach “substantial.” The property had value and could be sold and there are suitable alternatives for the family center.

Tags: Opinion by Posner, Constitutional Law, Federal Statute - Other, Fourteenth Amendment, Interstate Commerce, RLUIPA, Religious Land Use And Institutionalized Persons Act, Substantial Burden

"Deliberate Indifference" Requires Actual Knowledge Of Serious Medical Condition

Posted on February 4, 2010 by Michael Rigney

KNIGHT v. WISEMAN (December 22, 2009)

Shortly before Rick Knight began serving a prison term, he had surgery on his shoulder. Although he had no medical work restrictions, he did advise prison personnel of the surgery and some lingering pain. Nevertheless, several months later, he was transferred to a work camp. Prison inmates at the work camp participate in the work gangs, typically trimming trees and picking up roadside logs. At the camp, Knight participated in several work details without complaint, although he was generally successful in finding the less-strenuous tasks. On February 16, Knight was assigned to a work gang with Officers Wiseman and Wiedau. Although Knight again selected easier tasks, the officers insisted he do more. They were unaware of his shoulder complaints. The result -- he re-injured his shoulder throwing a log. A third officer returned Knight to the camp, although he took a short detour to run an errand on the way. Knight was diagnosed with a torn rotator cuff. He brought suit against the two officers pursuant to § 1983, alleging violations of this Eighth and Fourteenth Amendment rights. The district court granted summary judgment to the officers, concluding that they did not act with deliberate indifference. Knight appeals.

In their opinion, Judges Flaum, Manion and Wood affirmed. Two elements are required to state a claim for an Eighth amendment violation. There must be a serious medical condition and the plaintiff must demonstrate deliberate indifference on the part of the prison official to that condition. Deliberate indifference requires a showing that the defendant was actually aware of the serious medical condition. Here, there is no evidence in the record that the officers were aware of Knight's condition when they first ordered him to work. Although one of the officers ordered Knight back to work after his first complaint of pain, he quickly retracted his order when he realized the seriousness of Knight's injury. Finally, the Court rejected Knight's argument that the few hour delay in receiving treatment, including the brief detour, amounted to deliberate indifference. Such a claim would require medical evidence that showed his condition deteriorated due to the delay, which does not exist here.

Tags: Opinion by Flaum, Civil Rights, Constitutional Law, Deliberate Indifference, Eighth Amendment, Fourteenth Amendment, Section 1983

Establishment Has A Property Interest In Liquor License Actually Issued

Posted on February 2, 2010 by Michael Rigney

PRO'S SPORTS BAR & GRILL v. CITY OF COUNTRY CLUB HILLS (December 16, 2009)

Pro's Sports Bar & Grill is located in Country Club Hills, Illinois. Pro's submitted an application for a liquor license. Pursuant to local procedure, the City Council considered an ordinance on November 26, 2007 for the granting of that license. There is significant dispute about what happened at the council meeting. At a minimum, there is confusion about the formalities undertaken. There certainly was discussion about granting a license with limited hours. In any event, at the end of the meeting, an ordinance granting the license was approved. A Class A license with regular hours was issued. Shortly thereafter, however, the license was reissued as a Class A-1 license (a category of license not even defined in the municipal code). The local police began enforcing the license as if it had the limited hours which were discussed in the earlier council meeting. In 2008, when Pro's applied for a reissuance of the license, it was issued with limited hours, even though the normal practice is to be issued a license on its original terms and conditions. Pro's filed suit pursuant to § 1983, alleging a violation of its procedural due process rights. The court granted a preliminary injunction prohibiting the enforcement of the limited hours. The City of Country Club Hills appeals.

In their opinion, Judges Flaum, Manion and Wood affirmed. The Court started with its two-part test for approaching a procedural due process claim. It first identifies whether there is a protected liberty or property interest and then asks whether a party was deprived of its interest without due process. The principal issue in dispute was whether the original license contained the limited hours. If it did, the renewal did not result in any deprivation. If it did not, the renewal restrictions would have resulted in a deprivation. The bare language of the original ordinance granted an unrestricted license. The Court found the language of the ordinance unambiguous and rejected the defendants' argument that it should be interpreted otherwise because of either the intent of the City Council or because it was a scrivener's error. Having found a deprivation of the property interest, there was little dispute about the City's failure to provide adequate process -- since it provided none. Finally, the Court found no error in the lower court's balancing of the preliminary injunction factors.

Tags: Opinion by Flaum, Constitutional Law, Injunctive Relief, Procedural Due Process, Unambiguous, preliminary injunction

City Inspection Ordinance Passes Constitutional Muster

Posted on January 29, 2010 by Michael Rigney

MANN v. CALUMET CITY (December 7, 2009)

Calumet City passed an ordinance that requires a homeowner to conduct an inspection prior to the sale of the house to ensure its compliance with the building code. Several residents of the city brought an action challenging the constitutionality of the ordinance. The court dismissed the complaint for failure to state a claim. The residents appeal.

In their opinion, Judges Bauer, Posner and Sykes affirmed. The Court first noted that the residents challenged the ordinance as written, not relying on any particular facts regarding its application to them. The Court then reviewed the "reasonable" procedural provisions of the ordinance, concluding that the residents' challenges were frivolous.

Tags: Opinion by Posner, Constitutional Law, Due Process

Village's Water Supply Decisions Do Not Support Class-Of-One Equal Protection Claim

Posted on January 29, 2010 by Michael Rigney

SRAIL v. VILLAGE OF LISLE (December 7, 2009)

The Oak View subdivision was built in the 1950s. Since its earliest days, a private utility company has provided its residents with water. The Village of Lisle developed its municipal water system in 1967. The municipal system has grown as developers have donated water mains serving new projects. Lisle also purchased a private water utility in 1980. Although both the municipal system and the Oak View system receive their water from the DuPage Water Commission, the Oak View system has insufficient pressure for firefighting. Residents of Oak View sued the Village, alleging that the Village violated the Equal Protection Clause by providing municipal water to some residents and not others. The court granted summary judgment to the Village. The residents appeal.

In their opinion, Judges Ripple, Kanne and Sykes affirmed. The Court first noted that the residents are not members of a suspect class and they do not allege an infringement of a fundamental right. Therefore, the Court's review is on the rational basis test. Although the Court identified issues with the plaintiffs' status as a "class of one" and with an illegitimate animus requirement, it found it unnecessary to reach either issue. Citing the Supreme Court's decision in Engquist, the Court stated that government activity which involves discretionary decision-making based on a number of objective criteria need not treat all persons equally. The Village's decisions over the years to build and extend its system were based on individual assessments made at those times. There is no clear standard that the Village used and that the Court could use to judge any departures therefrom. The Court concluded that it was doubtful that the residents' claim would survive the Engquist test. The Court went on, however, and concluded that the residents failed to establish an equal protection violation. First, they were unable to establish the existence of an appropriate comparator. Second, the cost of extending the system, the apparent lack of interest on the part of most residents, and the Village's desire to avoid competition with the private utility amounted to a rational basis for its conduct.

Tags: Opinion by Kanne, Class-of-One, Constitutional Law, Equal Protection, Rational Basis, Similarly Situated

Sheriff's Endorsement Of Religious Group Violates First Amendment

Posted on January 28, 2010 by Michael Rigney

MILWAUKEE DEPUTY SHERIFFS' ASSOCIATION v. CLARKE (December 4, 2009)

The Milwaukee County Sheriff, David Clarke, invited a religious group, the Fellowship of the Christian Centurions, to attend and speak at a department leadership conference. All deputies above the rank of sergeant were required to attend. At the conference, Clarke announced some upcoming promotions, distributed written material with quotations from the Bible, and described "people of faith" as one of the qualities he was looking for in a leader. One of the Centurions then spoke and distributed additional material. After the conference, representatives of the Centurions also made presentations and distributed flyers at a number of mandatory roll calls. Two deputies, and their union, brought suit under § 1983. They alleged a violation of the Establishment Clause and the Free Exercise Clause of the First Amendment. The court granted summary judgment to the plaintiffs on the Establishment Clause claim. The defendants appeal.

In their opinion, Judges Bauer, Cudahy and Williams affirmed. Under the Establishment Clause, government action may not: a) have a non-secular purpose, b) have the principal effect of advancing or inhibiting religion, or c) foster an excessive government entanglement with religion. Although the first prong requires an analysis of the government's actual purpose, the second does not. A violation can be established if a reasonable person would conclude that the government action amounted to an endorsement of religion. Here, very few outside organizations have the kind of access given to the Centurions -- and those that were were organizations that partnered with the department in some fashion. The Court concluded that a reasonable observer would interpret the Sheriff's actions as an endorsement, although it was careful to limit its conclusion to the facts presented. In its analysis, the Court also rejected the Sheriff's argument that the First Amendment compelled him to grant access to the Centurions. The Court reasoned that the Sheriff did not create a forum of any kind by having a department meeting or a roll call. The Centurions were not looking for a place to speak -- they were looking for a specific audience to speak to. The Sheriff was not required to give that access.

Tags: Opinion by Williams, Civil Rights, Constitutional Law, Establishment Clause, First Amendment, Forum, Free Exercise Clause, Section 1983

Court Considers Effect Of Permitted And Non-Permitted Uses On Government Goals In Considering RLUIPA Violation

Posted on January 14, 2010 by Michael Rigney

RIVER OF LIFE KINGDOM MINISTRIES v. HAZEL CREST (October 27, 2009)

River of Life Kingdom Ministries ("Ministries") is a small religious organization that does not occupy its own facility. Instead, it shares space with two other religious organizations in a dirty warehouse. The Ministries decided to purchase a new facility where it could better promote its community goals. It purchased property in Hazel Crest, even though the village had zoned the area for economic redevelopment. The ordinances allowed general commercial and retail uses but did not allow religious services. After its application for a special-use exception was denied, the Ministries filed a complaint and motions for a temporary restraining order and preliminary injunction. The complaint alleged that the ordinance violated the Equal Terms provision of the Religious Land Use and Institutionalized Persons Act ("RLUIPA"). While the motion for a preliminary injunction was pending, the village amended the ordinance to exclude meeting halls, public schools, community centers and other uses in an effort to ensure the ordinance's compliance with RLUIPA. The court denied the preliminary injunction. The Ministries appeal.

In their opinion, Judges Cudahy, Manion and Williams affirmed. The Court first stated the burden for obtaining a preliminary injunction: a reasonable likelihood of success on the merits, irreparable harm and a balancing of the harms based on the likelihood of success. With respect to its likelihood of success on the merits, the Court concluded that the Ministries was unlikely to succeed. The Equal Terms provision of the Act prohibits land-use regulations that treat religious assemblies on "less than equal terms" with non-religious assemblies. The Court discussed and critiqued the approaches of the Eleventh and Third Circuits. The Court preferred the Third Circuit approach, which allows a court to compare the effects of the allowed and disallowed uses on the local government's goals. Here, Hazel Crest's goal was to create a tax-generating commercial district. All of the "assemblies" that were allowed by the ordinance were commercial ventures. The Court concluded that the village's exclusion of non-commercial uses, including religious assemblies, was not likely to violate the RLUIPA. Although the Court then concluded that the relocation was instrumental to the Ministries' mission and could be considered irreparable harm, it did not believe that that harm significantly outweighed the harm to Hazel Crest.

Tags: Opinion by Williams, Constitutional Law, Federal Statute - Other, First Amendment, Injunctive Relief, RLUIPA, Religious Land Use And Institutionalized Persons Act, preliminary injunction

First Amendment Does Not Require State Park To Display Asbestos Warning Pamphlet

Posted on January 7, 2010 by Michael Rigney

ILLINOIS DUNESLAND PRESERVATION SOCIETY v. ILLINOIS DEPARTMENT OF NATURAL RESOURCES (October 14, 2009)

Illinois Beach State Park is located in northeastern Illinois on the shores of Lake Michigan. Various buildings in the park have display racks containing pamphlets on various topics. The Illinois Dunesland Preservation Society is a nonprofit corporation that supports the park. The Society created a pamphlet warning of the risk of asbestos at the park's beaches. When the park refused to display the pamphlet, the Society brought suit under § 1983 against the state officials involved in operating the park. The district court granted summary judgment to the officials. The Society appeals.

In their opinion, Chief Judge Easterbrook and Judges Posner and Wood affirmed. The Court first recited some of the "forum analysis" of Supreme Court decisions but then questioned the value of that analysis to the question. Every public site, stated the Court, can be regulated to some extent depending on the circumstances and as long as the regulation is not used to stifle speech. Here, the materials displayed in the park's racks are meant to promote the park and state tourist facilities generally. The dire warning contained in the Society's pamphlet is hardly consistent with that purpose. The Court concluded that the park was not required to display, and thus tacitly endorse, the pamphlet containing the warnings. The Court added that there were other means, such as personal distribution, available to the Society to convey its message. The park's position was not an unreasonable barrier to speech.

Tags: Opinion by Posner, Constitutional Law, First Amendment, Public Forum, Section 1983

Defendants' Lack Of Knowledge Of Plaintiffs' Political Affiliation Precludes First Amendment Retaliation Claim

Posted on January 7, 2010 by Michael Rigney

GUNVILLE v. WALKER (October 9, 2009)

Robert Gunville and Richard Oakley had both worked for the Illinois Department of Corrections for over twenty years, all during Republican administrations, when a Democratic governor was elected in 2003. Both were laid off within months of the new administration’s inauguration. Gunville was an active member of the Republican Party while Oakley had a record of voting in Republican primaries. Gunville and Oakley brought suit, alleging a violation of their First Amendment rights. They also allege a violation of their Fourteenth Amendment rights as a result of their placement on a reemployment list for only their last county of employment. The district court granted summary judgment to the defendants. Gunville and Oakley appeal.

In their opinion, Judges Manion, Rovner and Sykes affirmed. In first addressing their First Amendment claim, the Court noted that there was no dispute that their speech was constitutionally protected and that they suffered a deprivation. The issue on appeal was whether the layoff came as a result of their political affiliation. In order to establish the unlawful motivation, the plaintiffs must first establish that the defendants knew of their political affiliation. After concurring with the district court's hearsay ruling on one particular statement, the Court concluded that there was a complete absence of evidence that the persons deciding which jobs to eliminate knew of plaintiffs' political affiliations. The Court came to the same conclusion with respect to the Fourteenth Amendment claims. The due process clause does not provide an opportunity to challenge the meaning of a regulation, the relief plaintiffs sought. To the extent that plaintiffs assert political retaliation, the due process argument suffers from the same complete absence of evidence as the First Amendment claim.

Tags: Opinion by Rovner, Civil Rights, Constitutional Law, Due Process, First Amendment, Fourteenth Amendment, Labor & Employment, Retaliation

Patient's Refusal To Consent To Psychiatric Examination Does Not Insulate Physician From Malpractice Liability

Posted on January 5, 2010 by Michael Rigney

HUNTER v. AMIN (October 1, 2009)

Stanley Bell was sent to the St. Clair County Jail as a pretrial detainee. At the time, he was taking several medications, including an antidepressant and a sleep aid. The prison psychiatrist, Dr. Amin, met with Bell about a week later. Bell refused to speak with Amin with a jail officer present. Amin refused to meet with Bell without a jail officer present, a practice that was also required by state regulations. Bell became agitated -- Amin told him his medication would be discontinued without the examination -- Bell became more agitated and belligerent. Amin discontinued all of Bell's medications and planned to meet with him the following week. Bell committed suicide two days later. Bell's sister, Elisha Hunter, brought a claim pursuant to § 1983 against Amin, the County, and others. She also bought medical malpractice claims. The district court entered summary judgment in favor of all the defendants. Hunter appeals.

In their opinion, Judges Ripple and Sykes (dissenting) and District Judge Lawrence affirmed in part, reversed in part and remanded. The Court first considered the argument that the policy requiring the presence of a corrections officer was a violation of Dell's right to mental health treatment. In order for a municipality to be liable under these circumstances, its policy must violate constitutional rights. Here, the Court stated that the policy did not violate Bell's rights. Bell had a constitutional right to adequate mental health treatment but nothing in the County's policy affected that right. In fact, the Court noted that the fact that the communications would be privileged from disclosure supported their conclusion. With respect to the medical malpractice claim, however, the Court reversed. Although it is true that no physician duty arises if a patient refuses treatment, Bell did not refuse treatment -- he only refused to be examined. The Court found no evidence in the record supporting Amin's position that the examination was necessary in order for him to continue the prescription medications. The Court medical remanded the malpractice claim for further proceedings. Finally, given the affirmance on the only federal claim in the case, the Court instructed the district court to determine whether it should continue to exercise jurisdiction.

Judge Sykes dissented from the majority's reversal of the medical malpractice claim. Judge Sykes concluded that Bell's refusal to consent to the examination meant that Amin had no right to render any treatment. Amin testified that he needed the examination before any treatment. Judge Sykes noted the lack of support in the record for the majority's conclusion that the examination was required.

Tags: Opinion By Lawrence, Opinion By Sykes (Dissenting Opinion), Civil Rights, Constitutional Law, Duty, Jurisdiction, Medical Malpractice, Section 1983, Tort

Police Officer's Errors In A Warrant Request Were Not Intentional False Statements or A Reckless Disregard For The Truth

Posted on December 22, 2009 by Michael Rigney

SUAREZ v. TOWN OF OGDEN DUNES (September 11, 2009)

William Suarez hosted a high school graduation party on the beach behind his parents' home in Ogden Dunes, Indiana. Beer was served. Around 11:00 p.m., a local police officer happened by and noticed the activity. While warning one young man for his illegal parking, he was verbally abused by several others. Believing that the party was getting out of control, the officer left to get help. Meanwhile, Suarez ended the party, put out the bonfire and invited a small group of his friends inside to spend the night. Suarez' mother, concerned that the police may return, instructed the boys to remain upstairs. The officer returned with a bevy of squad cars. He saw that there were still several cars in the driveway, although no people were present. Suspicious that the underage drinking was continuing inside the house, the officer telephoned a local judge for a search warrant. He described the earlier scene of abuse and fairly raucous behavior. He added that there were bottles in the back yard, that a number of teenagers retreated into the house and that teenagers hiding behind couches were visible through a window of the house. He got his warrant -- they broke down the door -- they arrested Suarez and his mother. William was wrestled and pepper-sprayed during his arrest. Suarez and his mother brought this action under § 1983, alleging an unlawful search and an unlawful arrest. William also complained of excessive force. Most of the case was resolved with summary judgment in the defendants' favor. The excessive force claim against three of the officers was tried to a jury, resulting in a defense verdict. William and his mother appeal.

In their opinion, Judges Flaum, Williams and Tinder affirmed. The illegal search claim, stated the Court, depends on the existence of probable cause. Because the plaintiffs challenged the statements made by the officer to the judge, as opposed to the decision of the judge, they must show that the officer made false statements knowingly or with reckless disregard for the truth and that the statements were necessary for the determination of probable cause. The Court first considered the claim that he made false statements by implying that he actually saw the teenagers retreat into the house and by omitting the fact that almost an hour elapsed between the earlier raucous behavior and his return to the home. The Court concluded that these were not materially false statements. The officer's earlier observations combined with the fact that a number of cars were still at the house supported an inference that the party was still taking place. The Court also rejected the claim that the officer did not personally observe every fact reported to the judge. He was entitled to rely on the collective knowledge of the gathered officers. Probable cause therefore existed and the search was lawful. The existence of probable cause for the search disposes of William's unlawful arrest claim. As for his mother's, the officers had reason to believe that she was permitting minors to consume alcohol in her home, a violation of Indiana law. Her arrest, also, was lawful.

Tags: Opinion by Tinder, Civil Rights, Constitutional Law, Fourth Amendment, Probable Cause, Section 1983, Unlawful Arrest, Unreasonable Search

Case Remanded For Hearing When Evidence Does Not Support Rationale For Adult Business Regulation

Posted on December 21, 2009 by Michael Rigney

NEW ALBANY DVD v. CITY OF NEW ALBANY (September 10, 2009)

New Albany DVD set out to operate an adult entertainment business in New Albany, Indiana. It purchased property, obtained licenses and renovated a building. Although the land was properly zoned, the City refused to conduct a final inspection, a requirement for occupancy. Instead, it imposed a moratorium on new adult businesses. During the moratorium, it changed the zoning rules to prohibit the operation of an adult business on the property selected by New Albany DVD. The new rules prohibit the operation of an adult business within 1000 feet of a church or any property zoned residential. The site is within 200 feet of both. New Albany DVD brought suit under § 1983, alleging a violation of the First Amendment. The district court held that the ordinance was likely unconstitutional and issued an injunction allowing New Albany DVD to open. The City appeals.

In their opinion, Chief Judge Easterbrook and Judges Ripple and Rovner remanded. The Court first disagreed with the lower court's rationale -- that the regulation was not narrowly tailored for its purpose -- for issuing the injunction. Although Alameda Books and other cases require narrow tailoring of regulations of adult businesses, the Court concluded that the dispersal regulation at issue had often been used and sustained after challenge. The Court went on, however, to agree with the court’s result under a different rationale. It noted that the studies relied on by the City focused on live-entertainment businesses. New Albany DVD offers take-home materials only. The City’s attempts to overcome this hurdle by offering anecdotal evidence of increased litter and theft was rejected as well. The Court agreed that the City might be able to use those justifications, but concluded that sufficient evidence did not exist in the record. Finally, the Court referred, as it did in its earlier Annex Books opinion (see post), to Justice Kennedy’s opinion in Alameda Books as a guide to the evidence required under the intermediate scrutiny standard.

Tags: Opinion by Easterbrook, Adult Businesses, Constitutional Law, First Amendment, Section 1983, Zoning

Class Treatment Is Held Inappropriate For Challenge To Post-Bond Detention

Posted on December 21, 2009 by Michael Rigney

HARPER v. SHERIFF OF COOK COUNTY (September 8, 2009)

Robert Harper was arrested on September 29, 2005. The next afternoon, a judge found probable cause, set bond and remanded him to the custody of the sheriff. Apparently, Harper's wife was at the probable cause hearing and was willing and able to post a cash bond. She eventually posted it a few hours later but Harper was not released from custody until hours after that. During that time, he was in the custody of the sheriff undergoing pre-release processing. Harper brought an action against the Sheriff, alleging that the pre-release procedures are unconstitutional. The district court granted Harper's motion for class certification, although it found his class definition too broad and asked for a redefinition. The Sheriff appeals.

In their opinion, Judges Bauer, Sykes and Tinder vacated and remanded. The Court first clarified that it had jurisdiction, notwithstanding the lower court's request for a redefinition of the class. The open definition was of no consequence since the court certified the class. Before it addressed class certification, the Court first had to decipher the crux of the complaint. It noted that Harper complained of specific intake procedures as well as the general practice of holding detainees after bond had been posted. Relying specifically on representations at oral argument, the court focused on the latter of these two issues -- the post-bond detention. On the merits of that argument, however, the Court concluded that the reasonableness of the detention would depend on the specific facts and circumstances of each individual case. The Court cited a number of factors: time of day, number of detainees, collateral events, etc. The Court also addressed Harper's equal protection claim that persons with money or influence can avoid the detention. Without addressing the merits, the Court concluded that this claim, too, was not appropriate for class disposition.

Tags: Opinion by Bauer, Civil Rights, Class Actions, Common Issues, Constitutional Law

The Injury Suffered By A Citizen Mistakenly Arrested On An Unpaid Parking Ticket Warrant Is Too Remote To Satisfy "Zone of Interests" Standing

Posted on December 17, 2009 by Michael Rigney

THOMAS v. CITY OF PEORIA (September 3, 2009)

A lawyer for the city of Peoria sought and obtained a warrant for the arrest of Joshua Thomas. Joshua’s crime -- nine unpaid parking tickets. Sometime later, Joseph Thomas was stopped for a traffic violation. Although the names and addresses of Joshua and Joseph did not match, the driver's license number on the arrest warrant for Joshua did match that of Joseph. Joseph was arrested. He was later released when it was determined that he was, indeed, not Joshua. Joseph brought an action under § 1983 against the City and the lawyer who obtained the warrant. He alleged a deprivation of his Fourth Amendment and due process rights. The court dismissed for failure to state a claim. He then denied class certification. Thomas appeals.

In their opinion, Judges Cudahy, Posner and Tinder affirmed. The Court first addressed "zone of interest" standing. The Court explained zone of interest standing as a requirement of federal common law that limits the class of persons entitled to sue. Remoteness of injury is one of those limitations. Here, for example, assuming state law does not authorize an arrest for unpaid parking tickets and that such an arrest would therefore violate the Constitution, Joshua Thomas is the one within the class of people the policy is designed to protect. Joseph’s interest is to remote to be recognized. Alternatively, the Court went on to conclude that Joseph would fare no better even if he was within the zone of interest. The Supreme Court held in Moore that a otherwise reasonable arrest (which this is) is not unconstitutional simply because it was for an offense that does not authorize arrest. The Court easily disposed of the due process argument. Finally, the Court added that the individual defendant would in any event have absolute immunity as a prosecutor performing a prosecutorial function.

Tags: Opinion by Posner, Constitutional Law, Section 1983, Standing, Unlawful Arrest, Zone Of Interest Standing

Evidence Of Discriminatory Intent Based On First-Hand Experience, Even If Uncorroborated And Self-Serving, Is Enough To Get A Discrimination Claim To The Jury When It Is Coupled With An Adverse Job Action

Posted on December 17, 2009 by Michael Rigney

DARCHAK v. CITY OF CHICAGO BOARD OF EDUCATION (September 3, 2009)

Anna Darchak, a native of Poland, worked for several years in the Chicago public school system as a teacher of English as a Second Language. In 2005, she was hired as a full-time teacher at the Princeton Alternative Center on a one-year contract. It was not a good year. Almost immediately, Darchak complained that Hispanic students were being treated more favorably than Polish students. Darchak alleges that Princeton's principal made several disparaging remarks in reference to Darchak's heritage. Later in the year, the principal assigned Darchak to a classroom with a large number of Spanish speaking students. Darchak complained – and she received a negative evaluation. The principal chose not to renew Darchak's contract at the end of the year. Darchak filed suit, alleging retaliatory discharge, First Amendment retaliation under § 1983, and national origin discrimination under Title VII. The district court granted summary judgment to the defendants. Darchak appeals.

In their opinion, Judges Cudahy, Ripple and Wood affirmed in part and reversed in part. The Court addressed each claim in turn. First, with respect to the state law claim of retaliatory discharge, the Court stated that Darchak had to demonstrate that she was discharged, that the discharge was retaliatory, and that the discharge violated a clear mandate of public policy. The Court concluded that the claim failed on both the first and third elements. First, Darchak was not discharged -- her one-year contract was not renewed. Second, the public policy relied on by Darchak -- equal education -- has never been recognized by Illinois courts as support for a retaliatory discharge claim. With respect to her First Amendment retaliation claim, the Court concluded that the Board of Education was not liable under Monell. Although Darchak alleged that the principal was a final policymaker, the Court stated that Illinois law makes the Board the final policymaker. The Court agreed that the Board's adoption of the principal's recommendation could be a basis for liability but only if they adopted the retaliatory basis as well. The Court found no evidence of that. Finally, with respect to the Title VII national origin discrimination claim, the Court noted that she put forth both a direct and an indirect case. The Court rejected her indirect method approach because she could not demonstrate pretext with respect to the Board's reasons for nonrenewal. On her direct method, however, the court found that Darchak presented sufficient circumstantial evidence to reach a jury. The evidence of derogatory remarks followed shortly by a disciplinary notice from the principal follow later by the nonrenewal establish a prima facie case. The fact that Darchak's testimony is uncorroborated and self-serving does not change that result, as the district court believed. The testimony is based on her first-hand experience and deserves to be considered. The Court concluded that the evidence raised a question of intent that had to go to the jury.

Tags: Opinion by Cudahy, CRA, Civil Rights Act of 1964, Constitutional Law, First Amendment, Labor & Employment, National Origin Discrimination, Retaliatory Discharge, Section 1983, Title VII

Intermediate Scrutiny Of Adult Bookstore Regulations Requires Evidence Of The Public Benefit Of The Particular Restrictions

Posted on December 16, 2009 by Michael Rigney

ANNEX BOOKS, INC. v. CITY OF INDIANAPOLIS (September 3, 2009)

The City of Indianapolis regulates “adult entertainment businesses”. The regulations include a license requirement, store lighting requirements, Sunday closings and restricted weekday hours. Prior to 2003, any retail establishment that received 50% of its revenue or devoted 50% of its space to adult materials was considered such a business. In 2003, Indianapolis reduced the 50% threshold to 25%. Four businesses that fell within that new definition brought suit, challenging both the licensing procedures and the definition. The district court rejected the challenges to both. The businesses appeal.

In their opinion, Chief Judge Easterbrook and Judges Flaum and Rovner affirmed in part and reversed in part. The Court adopted the district court's opinion with respect to the licensing challenge. It went on to address the challenge to the definition. The Court noted that Indianapolis conceded that the law is subject to "intermediate" scrutiny in that the plaintiffs are booksellers. Indianapolis relies on the reduction of crime and other negative effects of adult businesses. The Court identified a problem, however. Indianapolis relied on studies accepted by the Supreme Court and on a study it conducted years earlier that associated higher crime with adult businesses. But the studies all dealt with the effect of regulations dispersing adult businesses. The Indianapolis ordinance does not deal with dispersal -- it deals with store hours and store conditions. The studies also dealt with businesses that offered live entertainment, unlike three of the four plaintiffs in the case. The Court concluded that an evidentiary hearing was required. At the hearing, the City must present relevant evidence supporting its restrictions on adult businesses that satisfies the intermediate standard of the Supreme Court's decision in Alameda Books. The Court referred to Justice Kennedy's opinion, reflecting the holding of Alameda Books, as instructive. In order to meet the constitutional challenge, said Justice Kennedy, an ordinance must suppress the secondary effects of the regulated business yet leave the availability and amount of speech "substantially intact."

Tags: Opinion by Easterbrook, Constitutional Law, First Amendment, Intermediate Scrutiny

Municipal Liability Cannot Be Based On Retaliatory Firing By Department Head Who Did Not Have Final Policymaking Authority

Posted on December 15, 2009 by Michael Rigney

WATERS v. CITY OF CHICAGO (September 2, 2009)

Daniel Waters was a painter in the Chicago Department of Transportation (CDOT). In 2000, he refused a request by his supervisor to participate in a political campaign. At about the same time, he twice contacted local investigative journalists. On one occasion, he complained about a bridge that he thought was in such a state of disrepair that it was a danger to the public. On the other occasion, he complained that the City was making some improvements to a piece of property and that it did not own. Several of his superiors were unhappy with his conduct. He was transferred into a job working for a supervisor for whom he had worked before several times. Their relationship was strained, at best. Within a matter of weeks, Waters had several run-ins with his supervisor and was reported multiple times for violent behavior. A deputy commissioner recommended his firing. The department did not act on the recommendation. Department policy required that Waters be given an opportunity to respond to the charges of violence before any discipline was handed out. Waters provided his side of the story -- but the department ruled that his conduct amounted to violence in the workplace. The deputy commissioner resubmitted his recommendation. A pre-termination hearing was held. Commissioner Rice, who held the only authority to fire, terminated Waters. Waters sued the City under § 1983, alleging First Amendment retaliation. A jury awarded Waters $225,000 in damages and the court awarded more than $1 million in back pay, front pay and pension benefits. The City appeals.

In their opinion, Judges Manion, Rovner and Tinder vacated, reversed and remanded. The Court stated that, under Monell, a city can be liable for a constitutional deprivation but only if it resulted from a policy or practice, or that the injury was caused by someone with final policymaking authority. Waters relied on the latter prong. Final policymaking authority comes from state and local law, though. Here, said the Court, local law gives policymaking authority to the City Council, which has delegated it to the Commissioner of Human Resources. Although the Court recognized that department commissioners do have some authority to execute existing policy, they do not have policymaking authority. Since Commissioner Rice had no such authority, municipal liability cannot be based on her actions. The Court went on to note that Waters presented no evidence that Rice’s termination was in retaliation for his exercise of his First Amendment rights. Even if she had policymaking authority, the absence of that evidence would have defeated his claim.

Tags: Opinion by Tinder, Constitutional Law, First Amendment, Labor & Employment, Monell, Municipal Liability, Retaliation, Section 1983

Jail Guards' Willingness to Defy "Code of Silence" and Report Coworker Abuse of Inmates Is Not Constitutionally Protected Speech Under Garcetti

Posted on December 7, 2009 by Michael Rigney

FAIRLEY v. ANDREWS (August 20, 2009

Fairley and Gackowski were employed as guards at the Cook County Jail. Both complained about their fellow guards' mistreatment of prisoners. After one particularly brutal incident, the affected prisoners filed suit. Fairley and Gackowski infuriated some of the other guards by their willingness to testify truthfully about their knowledge of the incident. They were both harassed and taunted, verbally and physically. Ultimately, they both quit. Fairley testified in a deposition a few weeks before he quit. Gackowski gave a deposition after he quit. Both testified at the trial, which resulted in a defense verdict. Fairley and Gackowski brought an action under § 1983, alleging that the defendants violated their free speech rights by assaulting them as a result of their willingness to report the abuse of prisoners and to testify truthfully. Shortly before trial, the district court ordered the exclusion of all evidence of events that occurred prior to the plaintiffs’ depositions. The judge reasoned that anything that occurred prior to their speech could not be considered as retaliation or punishment for that speech. Without that evidence, the guards accepted a dismissal. Fairley and Gackowski appeal.

In their opinion, Chief Judge Easterbrook and Judges Posner and Wood affirmed in part and reversed in part. The Court first clarified its jurisdiction, given the guards' acceptance of a dismissal after the court’s evidentiary ruling. The Court concluded that a party can decide that further pursuit of its case in the trial court is hopeless and accept a judgment against it in order to appeal. On the merits, the Court addressed both of plaintiffs' theories: that the defendants punished them for reporting defendants’ misconduct and that defendants taunted them to prevent their future testimony. On the first theory, the Court concluded that their claim was barred by Garcetti. Garcetti provides that the First Amendment does not protect speech that is part of one's job. Here, one guard’s report about another guard's conduct is part of the job. But Garcetti applies as against an employer - here, the defendants are coworkers. The Court concluded that it did not have to reach the coworker issue. The guards' Monell argument that the jail had a policy against reporting any guard misconduct linked the employer's liability and the coworker's liability. On the second theory of liability, however, the Court concluded that Garcetti did not control. The speech at issue in the second theory was the guards' testimony in the prisoners' trial. That speech is not part of the job. The Court concluded that Fairley and Gackowski could recover against a defendant who made threats that were designed to discourage their trial testimony.

Tags: Opinion by Easterbrook, Constitutional Law, First Amendment, Garcetti, Prior Restraint, Section 1983

When Parties Offer Diametrically Opposed Versions Of Events, Summary Judgment Must Be Denied If The Plaintiffs' Version Supports Liability

Posted on December 7, 2009 by Michael Rigney

GONZALEZ v. CITY OF ELGIN (August 20, 2009)

A number of former high school classmates attended a wedding. Afterward, they gathered at the home of one of them. They visited late into the night and early morning. As the group was about to break up, one of them (who had left earlier to go to a local restaurant) returned to tell the others that his wife and brother were being assaulted outside the restaurant. Several members of the group went to the restaurant. The fight was over and the attackers were gone – but the police had arrived. Here, the testimony in the record supports two versions of a story. Several members of the group described a situation in which a number of police officers were out of control. They testified to beatings, kicks, and pepper-sprays. The police, on the other hand, described an unruly mob, disorderly conduct and resisting arrest. The police arrested several of the group. Most of the charges were dismissed. Six members of the group brought an action against the City and several police officers. They alleged violations of the Fourth Amendment, under § 1983, for unlawful arrest, excessive force, and failure to intervene. They also alleged state law malicious prosecution and a respondeat superior claim against the City. The district court granted summary judgment to the defendants and added that the defendants were also entitled to qualified immunity. Plaintiffs appeal.

In their opinion, Judges Posner, Flaum and Wood reversed and remanded. On the unlawful arrest claim, the Court noted that the plaintiffs had to show an arrest without probable cause. The Court reviewed the evidence in support of probable cause for the arrests for mob action, resisting arrest and battery. In each case, the Court concluded that the facts were contested. The plaintiffs’ version supported a conclusion that probable cause did not exist. On the excessive force claims, the Court again criticized the lower court for not viewing the facts in a light most favorable to plaintiffs. A reasonable jury could find that the police used greater force than necessary considering the totality of circumstances. For the same reason, the failure to intervene judgment was reversed. Next, the Court had little difficulty in rejecting the qualified immunity argument. The plaintiffs stated constitutional violations of an arrest without probable cause and the use of excessive force. Both constitutional rights are clearly established. Finally, the Court reversed with respect to the state law claims for much the same reason – there were genuine issues of material fact.

Tags: Opinion by Wood, Civil Rights, Constitutional Law, Excessive Force, Fourth Amendment, Malicious Prosecution, Qualified Immunity, Summary Judgment, Unlawful Arrest

Statute of Limitations For A Section 1983 Conspiracy To Prosecute Claim Begins To Run On The Date Of Indictment, Not The Date Of Acquittal

Posted on December 3, 2009 by Michael Rigney

BROOKS v. ROSS (August 20, 2009)

Victor Brooks served on the Illinois Prison Review Board ("PRB"). One of the functions of the PRB is to make certain parole decisions. In 2002, the parole request of inmate Harry Aleman came before the PRB. The hearing was unusual both because of Aleman's notoriety for murder and bribery and because a Department of Corrections employee provided a statement in support of his parole. Brooks cast the only vote in support of parole. Because of the high profile of the situation, the department began an investigation. The investigation resulted in several reports, some of which accused Brooks of accepting bribes to vote in favor of parole. Eventually, Brooks and the department employee were indicted for their conduct -- and later acquitted. Brooks filed suit under § 1983 and state law against numerous state officials, alleging claims of deprivation of due process, malicious prosecution, conspiracy and intentional infliction of emotional distress. The district court dismissed for failure to state a claim. Brooks appeals.

In their opinion, Judges Flaum, Wood and Tinder affirmed. The Court chose to address the claims under principles of timeliness, sovereign immunity and pleading requirements. First, a § 1983 claim borrows its statute of limitations from a state personal injury action. Here, that limitation is two years. Brooks' complaint was filed within two years of his acquittal, but more than two years after his indictment. The malicious prosecution and federal due process claims both require an allegation of acquittal and are therefore timely. The federal and state conspiracy claims and the intentional infliction of emotional distress claim complain of his prosecution. An acquittal is not a pleading element of any of them. Under Illinois law, the Court concluded that the indictment was a single overt act that triggered the statute of limitations for those claims. They are therefore time-barred. Second, Illinois law requires tort suits against the state to be brought in the Illinois Court of Claims. Although the Court recognized the exception if a state actor exceeds his authority, it concluded that the malicious prosecution claim did not fall within the exception and was therefore barred. Finally, the Court concluded that Brooks' due process claim did not meet the pleading requirements of the Supreme Court's recent opinions in Twombly, Erickson and Iqbal. Under those cases, a plaintiff is required to provide notice of his claim, a court must accept allegations as true unless they fail to provide sufficient notice, and the court need not accept conclusory or abstract allegations. Here, Brooks does provide many specific allegations, but the allegations describe conduct that is just as consistent with legal behavior as it is with illegal behavior. The only allegations that adequately describe illegal behavior merely recite the elements of the cause of action and do not put the defendants on notice of their specific conduct that is alleged to have violated the Constitution or law.

Tags: Opinion by Wood, Civil Procedure, Constitutional Law, Pleadings, Section 1983, Statute of Limitations

Class-Of-One Equal Protection Claim Remains Valid For Unequal Police Treatment Notwithstanding The Supreme Court's Decision Rejecting It In The Public Employment Context

Posted on November 25, 2009 by Michael Rigney

HANES v. ZURICK (August 18, 2009)

Apparently, Stephen Hanes and his neighbors in Grayslake, Illinois have been unable to get along for quite some time. The feud has resulted in numerous complaints to the local police. According to Hanes' complaint that the Grayslake police officers denied him equal protection of the law, the police always blame Hanes and arrest him. He has been arrested at least eight times – and every charge was dropped. The officers moved to dismiss the complaint both for failure to state a claim and on qualified immunity grounds. The district court denied the officers' motion to dismiss for failure to state a claim, although it did not specifically mention qualified immunity. The officers appeal.

In their opinion, Judges Rovner, Wood and Williams affirmed. Because a ruling on the qualified immunity defense was a necessary basis for the Court's jurisdiction of the interlocutory appeal and because the district court did not specifically mention qualified immunity, the Court first addressed its jurisdiction. The qualified immunity issue was fully briefed below, the district court addressed both prongs of the qualified immunity inquiry, and the district court gave no indication that it intended not to rule on any issue presented. The Court was therefore satisfied that it had jurisdiction to consider the order rejecting a qualified immunity defense. On the merits, the Court first considered the constitutional violation prong. The Court started with its opinion in Hilton, which recognized a class-of-one equal protection claim for unequal police treatment. The Hilton plaintiffs did not survive summary judgment because they failed to show that the unequal treatment was the result of personal animus. Personal animus is alleged here. Although the Court concluded that a constitutional violation existed under Hilton, it did consider the officers' argument that the Supreme Court's decision in Engquist should prompt it to reconsider Hilton. In Engquist, the Supreme Court held that the class-of-one theory is not well-suited to the public employment context where government actors exercise "discretionary authority based on subjective, individualized determinations." The Court rejected the invitation to reconsider Hilton. It noted that although police officers enjoy broad discretion in their actions, their discretion is much more limited than that of a public employer. On the issue of whether the constitutional right was clearly established, the Court concluded that the officers were on notice as a result of Hilton.

Tags: Opinion by Wood, Civil Rights, Class-of-One", Constitutional Law, Equal Protection, Jurisdiction, Qualified Immunity

Town's Regulation Of Firearms Is Consistent With Heller

Posted on November 20, 2009 by Michael Rigney

JUSTICE v. TOWN OF CICERO (August 14, 2009)

On the basis of an affidavit of a local building inspector asserting that John Justice was operating a business without a license and was likely illegally storing chemicals, a state judge issued a search warrant. During the search, the police discovered several unregistered guns. The town seized the guns and ticketed Justice for their possession. Justice responded with a lawsuit against the town and several individuals. Justice alleged a lack of probable cause for the search and challenged both the business license and firearm ordinance. He also asserted various antitrust claims arising out of the town's water supply charges. The district court dismissed the entire complaint for a failure to state a claim. Justice appeals.

In their opinion, Judges Bauer, Wood and Tinder affirmed. The Court took each of Justice's allegations in turn. With respect to his challenge of the business license ordinance, the Court noted that the town was a home-rule unit with the power to regulate and license. The Court agreed with the district court that the ordinance was a proper application of that power. The Court next rejected Justice's challenge to the search. The search was conducted pursuant to a properly issued warrant. With respect to the firearm ordinance, the Court noted the Supreme Court's recent decision in Heller, which struck down a District of Columbia handgun prohibition, and the Court's even more recent decision in City of Chicago, which concluded that the Second Amendment did not apply to the states. Justice has no case either because City of Chicago was decided correctly and the Second Amendment does not apply to the town, or, even if the Second Amendment does apply, the ordinance is consistent with Heller in that it only regulates – and does not prohibit - gun possession. Finally, the Court summarily affirmed the district court with respect to Justice's various claims with respect to the town's water supply practices. Water supply is a traditional government activity authorized by state law. The town is immune from both federal and state antitrust liability for its water supply activities.

Tags: Opinion by Wood, Constitutional Law, Home Rule, Second Amendment, Unlawful Search

A Section 1983 Claim Of Unlawful Search Borrows Its Survivability From The State False Imprisonment Tort, Not Trespass

Posted on November 20, 2009 by Michael Rigney

BENTZ v. CITY OF KENDALLVILLE (August 14, 2009)

The local police arrived at the home of Dr. Bernard Leonelli, responding to reports of a domestic dispute. An officer observed a large fire on the front lawn and was told by bystanders that a fight was taking place inside the home. The officer approached Leonelli, who was standing on his front porch, and asked to speak with him. Instead, Leonelli walked into the house, where the officer observed him reaching for something. The officer entered the house, arrested Leonelli and searched the premises for a possible victim of domestic abuse. Leonelli brought an action against the city under § 1983, alleging that both the arrest and the search were unreasonable and unlawful. The district court granted summary judgment to the defendants. Leonelli appealed -- but died before the appeal was heard. His personal representative seeks to continue the appeal on his behalf.

In their opinion, Judges Cudahy, Posner and Kanne granted the defendants’ motion to dismiss the appeal. Section 1983 is silent on whether a claim survives death. Instead, the Court stated, the state’s survival statute applies. A court must first characterize the § 1983 claim and decide which state tort is most analogous. With respect to the arrest claim, the Court noted that the plaintiff had to establish the fact of a seizure and its unreasonableness. The Court concluded that the closest Indiana tort was false imprisonment, the elements of which are almost identical to those for false arrest. Since an Indiana tort of false imprisonment does not survive the death of the plaintiff, neither does Leonelli's false arrest claim. With respect to the unlawful entry and search, the Court stated that the facts of the case were closely analogous to both a state trespass claim, which does survive, and a state invasion of privacy claim, which does not survive. The proper analysis, however, focuses on the elements of the federal claim, not the specific facts of the case. Looking at it from that perspective, the Court concluded that an expectation of privacy is the core of the unreasonable search claim. The federal claim is more analogous to invasion of privacy than it is to trespass. The claim does not survive.

Tags: Opinion by Kanne, Constitutional Law, False Arrest, Fourth Amendment, Section 1983, Survivability, Unlawful Search

Chicago's Restriction On Use Of Mobile Phones While Driving Is Upheld

Posted on November 18, 2009 by Michael Rigney

SCHOR v. CITY OF CHICAGO (August 13, 2009)

The City of Chicago passed an ordinance that prohibits the use of a mobile phone while driving unless it is used in conjunction with a "hands-free" device. Three individuals who were ticketed for violating the ordinance filed an action against the City, alleging violations of the Fourth Amendment, the Equal Protection Clause and Illinois law. The district court dismissed the claims and refused to allow an amendment to the complaint. The plaintiffs appealed.

In their opinion, Judges Manion, Rovner and Wood affirmed. The Court rejected the Fourth Amendment claim. The officers making the stops observed each plaintiff violating the ordinance. Those observations provided probable cause for the stop – and thus no Fourth Amendment violation. The Equal Protection Clause claim was a "class of the one" claim. To succeed on that claim, the Court stated, the plaintiffs had to show that they were treated differently and that there was no rational basis for the difference in treatment. Here, the drivers were treated differently than other drivers who were not using mobile phones. The basis for the differential treatment, however, was the violation of an ordinance -- clearly a rational distinction. The Court rejected the plaintiffs' Monell claims as well. A direct claim against a municipality must be based on an underlying constitutional violation, which is not present here. Finally, the Court concluded that the district court's refusal to allow an amendment to the complaint was not an abuse of discretion. In the amendment, the plaintiffs sought to include a claims that the ordinance violated their fundamental right to travel and a claim that the ordinance was void for vagueness. The plaintiffs failed to indicate how the ordinance infringed any right to travel or how its terms were so vague that an ordinary person could not understand.

Tags: Opinion by Wood, Class-of-One, Constitutional Law, Equal Protection, Fourth Amendment, Monell

Police Officer Who Restrained Citizens With A Submachine Gun When There Was No Threat To His Safety, No Indication Of Weapons And No Resistance Is Not Entitled To Qualified Immunity

Posted on November 9, 2009 by Michael Rigney

BAIRD v. RENBARGER (August 3, 2009)

Joe Baird owned a body shop in Shelbyville, Indiana. After he purchased an antique automobile, he had his office call the police department to check the vehicle's motor number. Although an officer verified the number, he soon thereafter reported his suspicion to a prosecutor that the number was altered. He obtained a search warrant for the automobile and he and several other officers, including Officer Renbarger, executed the warrant. Officer Renbarger carried a 9 mm. submachine gun and rounded up a number of people in the surrounding shops and warehouses, including a group of Amish men. He held the individuals for almost two hours while the search was conducted. The officers located the car and concluded that the motor number had not been altered. Baird brought suit against the officers pursuant to 42 U.S.C § 1983. He alleged violations of the Fourth Amendment and state law claims for trespass, negligence and false imprisonment. The district court denied Renbarger's motion for summary judgment on the basis of qualified immunity. Renbarger appeals.

In their opinion, Judges Bauer, Flaum and Wood affirmed. The Court set out the two-step Saucier inquiry: whether a constitutional right has been violated and whether that right was clearly established at the time of the conduct. Whether the seizure was unreasonable is an objective test requiring an analysis of the severity of the alleged crime, the presence of an immediate threat and whether there is any resistance. Here, these factors all support the unreasonableness of the seizure. The only alleged crime concerned a vehicle motor number. No officer had any reason to believe there was any imminent threat. No one resisted the detention. The Court concluded that a jury could find that Renbarger violated Baird's rights. With respect to the second step of the inquiry, the Court concluded that it was clearly established that police officers are not entitled to point guns at citizens when there is no suggestion of any danger. The Court concurred with the district court's denial of qualified immunity.

Tags: Opinion by Wood, Constitutional Law, Excessive Force, Fourth Amendment, Qualified Immunity, Section 1983

Plaintiff Must Identify A Specific City Custom Or Practice That Deprived Him Of His Constitutional Rights In Order To Survive Summary Judgment

Posted on November 6, 2009 by Michael Rigney

HOLLINS v. MILWAUKEE (July 31, 2009)

David Hollins is a freelance photographer. One June day in 2002, he was walking down a Milwaukee street. He came upon a scene where the Milwaukee Police were conducting a search of a home across the street. Hollins began taking pictures. A police officer noticed Hollins and asked him to move away from the area. Although he moved a short distance, Hollins eventually stopped and refused to move further. Police officers arrested Hollins and cited him for resisting an officer. The parties' versions of the events differ greatly with respect to the amount of force used by the officers and the attitude and language of the participants. Hollins was convicted and paid a fine. He later sued the city and the officers for violations of the First, Fourth and Fourteenth Amendments. He also brought a § 1983 claim against the City of Milwaukee for failure to train police officers properly. The court granted summary judgment to the defendants on the § 1983 claim and dismissed the free speech and due process claims as well. A jury found for the defendants on the unlawful arrest and excessive force claims. Hollins appeals.

In their opinion, Judges Bauer, Flaum and Evans affirmed. The Court first addressed the § 1983 claim for failure to properly train the police. The Court agreed that a failure to train police can lead to § 1983 liability if it amounts to a deliberate indifference of public rights. The Court further stated that Hollins had to present allegations of a specific pattern of incidents to prove that the constitutional deprivation resulted from an official policy or custom. Hollins, however, failed to offer any evidence that the city's failure to train amounted to the requisite deliberate indifference. The city, on the other hand, presented unrebutted evidence that it did offer significant training in the areas cited by Hollins. The Court also affirmed the dismissal of the free-speech claims, concluding that Hollins' allegations that he was arrested for taking pictures totally unsupported. With respect to the alleged trial errors, the Court concluded that the district court did not abuse its discretion when it: a) refused to ask a voir dire question on racial prejudice that had nothing to do with the law or facts, b) disallowed questioning on cross-examination that one of the defendants had been investigated for falsifying police reports when it had limited probative value, and c) refused to tender Hollins' jury instruction interpreting the ordinance under which he was cited when he offered no authority to support his interpretation and when the jury was not being asked to determine whether the ordinance had been violated.

Tags: Opinion by Bauer, Constitutional Law, First Amendment, Fourteenth Amendment, Municipal Liability, Section 1983

Village Employee's Speech Of Public Importance Becomes Unprotected Private Speech Only When It Is Solely Motivated By The Employee's Personal Interest

Posted on November 5, 2009 by Michael Rigney

VALENTINO v. SOUTH CHICAGO HEIGHTS (July 30, 2009)

Sandra Valentino worked for the Village of South Chicago Heights for several years. In 2001, she became suspicious of Mayor David Owen's hiring practices. She was aware that the Village employed many of the mayor's friends and family members. She believed that many of these employees were on a “ghost payroll,” i.e., being paid for work they did not perform. She shared her concerns with William Bramanti, a former village employee who quit as a result of a dispute with the mayor. Bramanti submitted a FOIA request to the village for employee time records. At the same time, Valentino began to make copies of the daily employee sign-in sheets. In February of 2003, Bramanti accused the mayor publicly of ghost payrolling. The very next business day, the Village Administrator searched Valentino's desk, found the copies, and fired Valentino when she arrived for work. Valentino filed a § 1983 action against the Village, the mayor and others. She alleged retaliation in violation of her First Amendment rights. The district court granted summary judgment to the defendants. Valentino appeals.

In their opinion, Judges Rovner, Evans and Williams reversed and remanded. The Court first looked to whether Valentino's speech was constitutionally protected, i.e., whether she spoke as a private citizen on a matter of concern. The Court found it "well-established" that speech which protests government waste is entitled to constitutional protection. Although the Court recognized that Valentino had a private interest in determining whether she was receiving proper compensation, it concluded that her speech was protected since she was not motivated solely by those personal interests. The Court next addressed whether there was evidence that the protected speech was a motivating factor in her termination. The Court found the circumstantial evidence -- knowledge of her relationship with Bramanti, the search of her desk, the search and firing the day after Bramanti's public accusations, and a comment by the mayor threatening her employment -- sufficient to take that issue to a jury. That same evidence, as well as the fact that the sign-in sheets were on public display and were simply copied by Valentino, was enough for the Court to conclude that a jury could also find the village's stated reason for her termination pretextual. Thus, the Court reversed the summary judgment for the defendants. With respect to the Monell claim, the Court stated that the Village could be liable for the constitutional violation if it was caused by an individual with final policymaking authority. The question for the Court was whether Owens had final authority on matters of hiring and firing. The Court concluded that the evidence was conclusive that Mayor Owen made personnel decisions for the village without any meaningful oversight, and thus had final authority. The Court reversed the district court with respect to the village's liability under Monell. Finally, the Court rejected defendants' argument that the Illinois Tort Immunity Act immunized them. That Act immunizes village officials from certain discretionary policy decisions. The decision to fired Valentino was not a policy decision -- the defendants are not entitled to immunity.

Tags: Opinion by Williams, Constitutional Law, Evidence, First Amendment, Illinois Tort Immunity Act, Labor & Employment, Retaliation, Section 1983

Testimony Of Victim, Corroborating Evidence And Lack Of Alibi Provide Reasonable Cause To Believe In The Suspect's Guilt, A Complete Defense To A Malicious Prosecution Claim

Posted on November 4, 2009 by Michael Rigney

JOHNSON v. SAVILLE (July 29, 2009)

For several years, Larry Johnson worked in a youth correctional facility in Illinois. When a former female inmate alleged that she and Johnson had sexual relations while she was an inmate, the Illinois Department of Corrections began an investigation. Illinois State Police Officer Karl Saville was assigned to the case. Saville gathered substantial evidence of Johnson's guilt, including several statements by the witness implicating Johnson. Saville was not aware of a prior statement by the same witness denying any sexual relations with Johnson. The State decided to prosecute Johnson. He was found not guilty in a bench trial. He later brought a § 1983 action against Saville, alleging malicious prosecution under both state and federal law. The district court granted summary judgment to Saville. Johnson appeals.

In their opinion, Judges Evans, Williams and Tinder affirmed. With respect to the state malicious prosecution claim, the Court stated that one element of the claim is the absence of probable cause. The Court found probable cause: the victim stated that she and Johnson had sexual relations, several other inmates gave statements corroborating the victim’s story, Johnson had no alibi, and the facility's records showed that Johnson had access to the victim on the date in question. The Court recognized certain disputes regarding the facts and also appreciated that the victim had, on one occasion, denied having sexual relations with Johnson. Nevertheless, it concluded that the undisputed facts created probable cause to believe that Johnson was guilty. With respect to Johnson's federal Fourth Amendment malicious prosecution claim, the Court agreed that Johnson forfeited the claim by not developing it in the district court. It rejected, on several grounds, Johnson's pleas to overlook the forfeiture.

Tags: Opinion by Tinder, Constitutional Law, Fourth Amendment, Malicious Prosecution, Probable Cause

City Cannot Escape Its Due Process Obligations to Employee Occupying State-Protected Job By Simply Transferring Her Into An Unprotected Job Before Firing Her

Posted on November 2, 2009 by Michael Rigney

CASNA v. CITY OF LOVES PARK (July 24, 2009)

From 1996 through 2003, Mary Casna worked for the City of Loves Park in two different positions. Though she had a serious hearing impairment, it did not interfere with her performance. In her second job, Casna and one of her superiors did not enjoy a good working relationship. The City transferred her to a temporary police clerk position for six months in order to evaluate her performance in a less volatile atmosphere. Casna's hearing impairment became an issue. In one particular episode, Casna explained to her supervisor, Kay Elliot, that she had not heard her make a request. Elliot snapped: "How can you work if you cannot hear?" Casna accused Elliot of being discriminatory. Elliot consulted with her supervisor and prepared a written performance evaluation, even though Casna was only two months into the job. At the police chief's request, and based on the negative evaluation, the Mayor fired Casna. Casna brought suit against the City, the Mayor and the Police Chief. She alleged that she was fired in retaliation for her complaints of discrimination. She also alleged that the City violated Due Process by discharging her without a hearing. The district court granted summary judgment to defendants. Casna appeals.

In their opinion, Judges Manion, Rovner and Sykes reversed and remanded. On the due process claim, the Court stated that Casna must establish a property interest that is guaranteed by the Constitution but found in Illinois law. Relying on Illinois’ civil service statute, the Court concluded that her first position was exempt but that her second job was not exempt (although the resolution appointing her said it was). Although the Court agreed that a temporary position (her third job) is normally exempt, the Court also concluded that the City could not transfer Casna out of a protected job into an unprotected job and then fire her without process. The Court also rejected the City’s reliance on the requirement that a protected employee obtain her job through the civil service process. Since it was the City that wrongfully tried to make the second position exempt, the Court held that it was estopped from relying on that requirement. Casna is entitled to prove her damages, if any, arising from the lack of process. The Court also reversed the lower court on the retaliation claim. It concluded that Casna’s single statement to Elliot complaining of discrimination, though informal, was sufficient to amount to “protected activity.” Finally, although the Court cautioned that suspicious timing is rarely enough to establish a triable issue on causation, it concluded that it did here, where the police chief recommended her termination the day after the protected activity.

Tags: Opinion by Rovner, Americans With Disabilities Act, Civil Service, Constitutional Law, Due Process, Labor & Employment, Section 1983

Speech, Though Tangentiallly Related To Abuse Of Public Resources, Is Not Protected Speech When It Was Spoken For Purely Personal Reasons

Posted on October 29, 2009 by Michael Rigney

MILWAUKEE DEPUTY SHERIFF'S ASSOCIATION v. CLARKE, JR. (July 21, 2009)

In mid-2005, possibly in response to public criticism of his use of police officers as escorts, Milwaukee County Sheriff Clarke posted a message on the department bulletin board: "If you are afraid or have lost your courage, you may go home, otherwise you will ruin the morale of others." Michael Schuh, a veteran police officer, was offended. He submitted a statement to the union newsletter: "If you are afraid or you have lost your courage and need two deputies and a sergeant to escort you every time you fly in and out of the airport and patrol deputies to drive by your house when you're out of town you should resign and go home! Then you would lift the morale of this whole department (a.k.a. office)." A few days later, Sheriff Clarke assigned Schuh to a newly-created patrol in the most dangerous part of the town -- in full uniform, without a partner, and without a car. At about the same time, Sheriff Clarke issued a revised departmental confidentiality policy. The policy required employees to keep "official agency business" confidential and not to speak on behalf of the department. Officer Schuh and the union brought suit, alleging violations of state law as well as First Amendment retaliation under § 1983. The suit also challenged the confidentiality policy as an unlawful prior restraint. The district court granted summary judgment to Sheriff Clarke on the federal claims. Schuh and the union appeal.

In their opinion, Judges Kanne, Rovner and Evans affirmed. The Court applied the three-step First Amendment retaliation analysis. The only step in dispute was whether Schuh's speech was constitutionally protected. To be protected, the speech must be of public concern. The Court considered the content, form and context of Schuh's statement. The Court noted that the form, a union newsletter, and the content, the Sheriff's abuse of department resources, could weigh in favor of constitutional protection. The context of the statement, however, led the Court in a different direction. The Court concluded that the context of the speech showed that it was a purely private matter. It did not focus on the fiscal repercussions of the Sheriff's conduct but rather on the personal impact of his original statement. Since the speech is not protected, Schuh's retaliation claim fails. With respect to the prior restraint claim, the Court first looked to whether the confidentiality policy applied to protected speech – i.e., the speech of a citizen on a matter of public concern. Since the policy on its face applied only to "official agency business," the Court concluded that it must apply only to speech related to an employee's professional duties. Since it did not regulate protected speech, it was not an unlawful prior restraint.

Tags: Opinion by Kanne, Constitutional Law, First Amendment, Garcetti, Prior Restraint, Retaliation

Court Finds No "Clearly Established" Constitutional Obligation Of Police Officers To Identify Themselves While Making A Public Arrest

Posted on October 28, 2009 by Michael Rigney

CATLIN v. CITY OF WHEATON (July 21, 2009)

Police officers from the City of Wheaton and several neighboring jurisdictions conducted a major law enforcement operation targeting a drug conspiracy in August of 2003. Several Wheaton police officers were given the task of arresting Robert Ptak. Ptak was considered armed and dangerous and had a history of resisting arrest. The officers were dispatched to a local motel where Ptak was believed to be staying. They had a photograph and a physical description and had been told that he was seen riding a yellow sport motorcycle. The officers located an individual that met Ptak’s physical description on a yellow sport motorcycle in the vicinity of the motel. Unbeknownst to the officers, however, the individual was not Ptak. It was Jonathan Catlin. According to Catlin, the officers jumped out of their vehicle while they were stopped at a traffic light and ran toward him. They grabbed him, threw him down, and eventually handcuffed him. They did not identify themselves as police officers until after the arrest. They soon realized their mistake and released Catlin within 20 minutes. Catlin brought an action for false arrest and excessive force under § 1983. The district court found that the defendants were entitled to qualified immunity and granted summary judgment. Catlin appeals.

In their opinion, Judges Cudahy, Posner and Kanne affirmed. The Court stated that Catlin had to show a violation of a constitutional right and that the right was clearly established at the time. With respect to the false arrest claim, the Court found no constitutional violation. The officers had a reasonable belief that the person they arrested was Ptak. The fact that they might have taken additional steps to be more certain does not affect the reasonableness of their belief. With respect to the excessive force claim, the Court stated that the reasonableness of force depends on the circumstances of the case. The Court conceded that summary judgment is frequently not appropriate in excessive force cases because of factual disputes. Here, given the absence of any factual dispute and the particular circumstances of who the police thought they were dealing with, the Court concluded that the presence of excessive force was a question of law. The Court was troubled by the officers' failure to identify themselves until after the arrest. Earlier identification might have reduced the need for the amount of force used. Even accepting it as a close question, however, the Court concluded that the right, if it existed, was not "clearly established." The Court was unaware of any court of appeals decision holding that police officers have a constitutional obligation to identify themselves when carrying out a public arrest. Qualified immunity therefore attached.

Tags: Opinion by Cudahy, Civil Rights, Constitutional Law, Excessive Force, False Arrest, Fourth Amendment, Qualified Immunity

Parental Notice Bypass Procedure In Abortion Notice Statute Passes Facial Constitutional Challenge

Posted on October 22, 2009 by Michael Rigney

ZBARAZ v. MADIGAN (July 14, 2009)

A lawsuit was filed in 1984 challenging an Illinois statute requiring parental notice of an abortion of a minor. The Court affirmed a district court order that held the act unconstitutional because it failed to provide for anonymity and an expedited appeal. The district court later concluded that an Illinois Supreme Court Rule did not cure the defect and continued an injunction in force. In 1995, the Illinois General Assembly repealed the act and replaced it with the Illinois Parental Notice of Abortion Act of 1995 (the "Act"). The Act requires a doctor to provide 48 hours notice to an adult family member of his or her intention to perform an abortion on a minor or incompetent person. In a judicial bypass procedure, a court can order notice waived if it determines by a preponderance of the evidence that a) the petitioner is sufficiently mature to intelligently decide whether to have an abortion, or b) that notification would not be in the best interest of the petitioner. The parties agreed to continue the injunction until the Supreme Court promulgated rules relating to the Act’s bypass procedure. The Supreme Court did so -- 10 years later, in 2006. On the defendants’ motion to dissolve the injunction, the district court concluded that the Act was unconstitutional because the bypass procedure failed to provide a mechanism for consent for a petitioner who failed to establish the requisite maturity level but who successfully established that it was in her best interest to waive notice. The defendants appeal.

In their opinion, Judges Cudahy, Kanne and Tinder reversed and dissolved the injunction. The Court began by noting that the applicable legal framework was not in dispute. It is that: a) minors have a right to an abortion, b) the Supreme Court has upheld certain limitations on that right, including with respect to parental involvement, and c) parental consent requirements must have an alternative for sufficiently mature minors and for those whose interests are not best served by requiring consent. Applying those principles to this facial challenge to the Act, the Court found it to be constitutional. It rejected for several reasons the district court's conclusion that the Act authorized a court to waive parental notice in a "best interest" situation but lacked language authorizing a method of consent. The lower court reasoned that a bypass court would only reach the best interest issue if it found the minor too immature to make the decision. Even if it found for the minor on the best interest inquiry, its order would include a finding of immaturity. At that point, concluded the court, the "immature" minor would be legally prohibited from giving her consent to an abortion. The Court rejected the argument and held: a) the Act did contain an implicit provision authorizing consent, b) the Act does not require a bypass court to consider maturity before best interests, c) the Act does not require findings on both maturity and best interests, d) even without the explicit power, a bypass court has the inherent power to issue an order authorizing consent as an order in aid of its judgment, and e) the lower court's interpretation of the Act cannot stand when it leads to the absurd result of disallowing best interest abortions, when one of the purposes of the Act is to provide a mechanism to allow them. Finally, the Court emphasized that it was ruling on a facial challenge and expressed no view with respect to any future "as-applied" challenge by a minor who finds the actual proceedings deficient.

Tags: Opinion by Cudahy, Abortion, Consent, Constitutional Law, Notice

Record Did Not Establish Minimally Reasonable Justification Necessary For Wisconsin To Burden Interstate Commerce With Its "Diploma Privilege"

Posted on October 21, 2009 by Michael Rigney

WIESMUELLER v. KOSOBUCKI (July 9, 2009)

The State of Wisconsin hosts two law schools, at Marquette University and at the University of Wisconsin. Graduates of these schools have a “diploma privilege.” That is, they are admitted to practice law in the State of Wisconsin without taking the bar exam. A graduate of any other law school in the United States must take the bar exam before being admitted to practice in Wisconsin. A group of those out-of-state graduates sued the Wisconsin Board of Bar Examiners and the Supreme Court of Wisconsin, alleging a violation of the Commerce Clause. The district court granted the defendants' motion to dismiss. The class appeals.

In their opinion, Judges Posner, Ripple and Wood reversed and remanded. The Court first addressed defendants' argument that the plaintiffs lacked standing because they challenged only that part of the Supreme Court Rule granting admission to graduates of state law schools without contending that they met a second requirement of the rule that their law school credits primarily focused on Wisconsin law. The Court concluded that the rule did not impose the latter requirement and that every class member could meet the actual requirements of the rule, as it read it. The Court next addressed the standing argument that Wisconsin could comply with an injunction by requiring all law school graduates to take the bar. This would certainly correct the problem but it would provide no relief to plaintiffs. But the Court reasoned that that was not the only outcome of such an injunction. There were numerous outcomes that would provide relief to the plaintiffs. Since the Court was unable to say that the plaintiffs have nothing to gain, they recognized their standing. On the merits, the Court conceded a state's right to regulate admission to its bar, even if the result impedes commerce. When it does, however, the regulation must be minimally reasonable. Here, the Court concluded that the record did not support any justification. It allowed the plaintiffs an opportunity on remand to establish the absence of a minimally reasonable justification.

Tags: Opinion by Posner, Commerce Clause, Constitutional Law

Defendants Are Not Entitled To Qualified Immunity For Claim That They Recorded Telephone Conversations Of Village Employees For Six Years Without Notice

Posted on October 19, 2009 by Michael Rigney

NARDUCCI v. MOORE (July 9, 2009)

Many years ago, the Bellwood, Illinois comptroller became concerned that some finance department employees were making personal phone calls on village time and also were subjected to harassing phone calls from irate village residents. The village approved a proposal to begin recording department phone calls. Nicholas Narducci took over as controller several years later. When he learned about the recording, he advised village trustees that it was illegal, he alerted the FBI and he directed the Chief of Police to discontinue the activity. In 2001, he brought an action against the village, the mayor, and the police chief on behalf of a class of finance department employees whose calls were recorded. He brought a Fourth Amendment claim under § 1983 and an illegal wiretapping claim under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as well as state law claims. The mayor and the police chief moved for summary judgment on qualified immunity grounds. The district court denied the motion with respect to the § 1983 claims and some of the Title III claims. The mayor and the police chief appeal.

In their opinion, Judges Flaum, Williams and Lawrence affirmed. The issue on appeal, whether the defendants were entitled to qualified immunity, required the Court to examine whether there had been a violation of a constitutional right and, if so, whether it was "well-established." With respect to the Fourth Amendment violation, the Court looked to the totality of the circumstances. It first found, drawing all reasonable inferences in Narducci's favor, that he had demonstrated a reasonable expectation of privacy. The Court next concluded that Narducci presented enough evidence to survive summary judgment, given that the recording lasted more than six years with no notice to the employees. Although the Court realized that no Supreme Court or prior Seventh Circuit decision squarely addressed the issue, it concluded based on decisions of other circuits that the right was sufficiently clear to preclude qualified immunity. Lastly, the Court rejected the defendants' qualified immunity defense to the Title III claims. The Court concluded that the lower court did not err in holding that defendants waived the argument by not presenting it in their opening brief.

Tags: Opinion by Flaum, Constitutional Law, Fourth Amendment, Omnibus Crime Control and Safe Streets Act of 1968, Qualified Immunity, Waiver

Force That Resulted In Injury To Arrestee Was Reasonable When It Would Not Have Led To Injury In Typical Arrestee And Officers Were Unaware Of His Sensitivity

Posted on October 12, 2009 by Michael Rigney

STAINBACK v. DIXON (June 30, 2009)

Several police officers, after a report of his involvement in a minor disturbance, arrested Charles Stainback. They asked Stainback to put his hands behind his back. Instead of doing so, he asked that he not be handcuffed. All he said was that he thought it would hurt. The officers handcuffed him anyway. Stainback was handcuffed in a police vehicle for approximately 20 minutes. During that time, he complained that the handcuffs were hurting him and asked for them to be removed. Stainback alleges that he required medical treatment as a result of the episode. He sued the officers, alleging the use of excessive force. The lower court concluded that the officers were entitled to qualified immunity because the amount of force was reasonable under the circumstances. The court granted summary judgment to the police officers. Stainback appeals.

In their opinion, Judges Flaum, Ripple and Sykes affirmed. The Court stated that whether force is reasonable depends on the circumstances surrounding the arrest. The circumstances must be viewed as they would have been by a reasonable officer on the scene. Here, the officers used an amount of force that would not have harmed a typical arrestee. Given that the officers were not aware that Stainback suffered from any particular condition or injury, the Court concluded that their actions were reasonable.

Tags: Opinion by Ripple, Civil Rights, Constitutional Law, Fourth Amendment, Unreasonable Force

Department Of Correction Officials Are Entitled To Qualified Community Because They Violated No "Clearly Established Right" When They Transferred A Senior Department Official For Testifying In Support Of A Prisoner's Parole

Posted on September 23, 2009 by Michael Rigney

MATRISCIANO v. RANDLE (June 26, 2009)

Ron Matrisciano worked for the Illinois Department of Corrections (IDOC) for over 20 years. By 2002, he had risen to the level of Assistant Deputy Director. Over the course of his employment with IDOC, he had become acquainted with a particularly notorious inmate, Harry Aleman. Aleman was serving a 100-300 year sentence for murder. Ten years into his sentence, when Aleman was about to be afforded a parole board hearing, his family asked Matrisciano if he would speak at the hearing. Matrisciano advised his superiors that he planned to testify at a parole board hearing, although he apparently did not advise them that Aleman was the subject of the hearing. Matrisciano took a personal day on the day of the hearing and testified in favor of Aleman's release. The fact that a relatively senior official of IDOC testified in favor of the release of a particularly notorious inmate generated significant media inquiry. IDOC officials reassigned Matrisciano to a new position within the department. Matrisciano filed suit, alleging that the transfer violated his First Amendment rights. The district court granted summary judgment against Matrisciano. Matrisciano appeals.

In their opinion, Judges Ripple, Williams and Sykes affirmed. The Court addressed the issue in the context of qualified immunity. The defendant government officials are entitled to qualified immunity if their conduct did not violate "clearly established" constitutional rights of which a reasonable person would be aware. The Court noted the Supreme Court's recent retreat from the mandatory two-step sequence of Saucier and used its discretion to address the "clearly established" prong first. The elements of a case of First Amendment retaliation are constitutionally protected speech, a deprivation likely to deter speech, and speech being a motivating factor for the adverse action. The defendants did not contest the second element and the Court easily found sufficient evidence of the third element on which a jury could rely. Therefore, the Court addressed whether the speech was constitutionally protected. First, the Court found or assumed that Matrisciano was speaking as a "citizen" and was speaking on a matter of public concern. The Court next rejected the "policy-maker" exception, under which a policy-making employee may be discharged for engaging in speech that is critical of his superiors or their policies. Although the Court found that Matrisciano was a policy-making employee, it found that his speech was too remote from the policies of the department to trigger the exception. Finally, the court moved to the Pickering balancing of the speech interests of the employee and the public service interests of the employer. Under that balancing, the Court considered several factors: whether the speech would create discipline problems, whether the employee’s position is one in which loyalty and competence are necessary, whether the speech affected the employee’s ability to perform, the time and place and manner and context of the speech, whether the subject of the speech was vital, and whether the speaker would be considered a member of the general public. In engaging in that balancing, the Court identified a number of factors on each side of the analysis: on the one hand, there was no policy prohibiting the testimony, Matrisciano advised and got permission for the testimony, IDOC employees frequently have relevant information helpful for parole determinations – on the other hand, Matrisciano had only minimal contact with the prisoner, Matrisciano was a high ranking employee, Matrisciano spoke voluntarily, and Matrisciano testified beyond his personal observations and actually requested the prisoner's release. Having found considerations on both sides of the equation, the Court was not inclined to decide whether Matrisciano's First Amendment rights were violated. Having decided that, it was not difficult to conclude that the law was such that reasonable officials would not know that their transfer of Matrisciano was unlawful. The defendants were entitled to qualified immunity.

Tags: Opinion by Williams, Constitutional Law, First Amendment, Qualified Immunity

Unilateral Actions Of Labor Union Representing City Police Officers, Without City Involvement, Does Not Satisfy State Action Requirement Of A Section 1983 Claim

Posted on September 22, 2009 by Michael Rigney

HALLINAN v. FRATERNAL ORDER OF POLICE OF CHICAGO LODGE NO. 7 (June 25, 2009)

Shawn Hallinan and Wayne Harej were Chicago police officers and members of the police union, the Fraternal Order of Police of Chicago Lodge No. 7 (the Union). They led an effort to unseat the Union’s president and his organization in early 2005. During the course of the campaign, they discovered that the president had underreported his income. They reported the matter to the Attorney General and discussed it publicly. The president was, nevertheless, reelected. The Union soon suspended, and then expelled, the two men from the Union. At the Union's request, the City of Chicago converted the two men into "fair-share payers." Fair-share payers are those members of the Police Department who are not Union members and do not pay Union membership dues but who contribute a "fair-share" for the Union's continued representation of them in matters concerning their wages, hours and working conditions. Hallinan and Harej brought an action against the Union under section 1983 alleging violations of the First and Fourteenth Amendments. The court dismissed the action for plaintiffs’ failure to plead state action. Plaintiffs appeal.

In their opinion, Judges Rovner, Wood and Sykes affirmed. The allegations of constitutional violations in the complaint, noted the Court, are actionable only against conduct of the government -- not against private conduct. Unions, of course, are not government actors. A deprivation of a constitutional right may be actionable against a private actor in certain limited circumstances. The Court noted several examples: when the state compels the action, when the private actor is only nominally private, when the state delegates its function to a private actor, etc. Here, the state action alleged is that the Union is the sole collective bargaining unit for the Chicago Police. However, the acts complained of were not taken in concert or in agreement with the City. They were exclusively internal actions. The Court concluded that there was not enough evidence of entanglement by the City to give rise to state action. Although the Court agreed with the district court that the claim should be dismissed for failure to allege state action, it corrected the district court’s categorization of it as a lack of subject matter jurisdiction. An absence of a proper allegation of state action is simply a failure to plead an essential element of the claim.

Tags: Opinion by Rovner, Constitutional Law, First Amendment, Labor & Employment, Section 1983, State Action, Union

When Supreme Court Precedent Has Direct Application To A Case, It Is Not The Province Of The Appellate Court To Decide Otherwise, Even If It Appears Likely That The Precedent Will Be Overruled

Posted on September 14, 2009 by Michael Rigney

NATIONAL RIFLE ASSOCIATION OF AMERICA v. CITY OF CHICAGO (June 2, 2009)

The City of Chicago and the Village of Oak Park, Illinois both ban the possession of most handguns. The Supreme Court decided District of Columbia v. Heller in 2008, holding that the Second Amendment prohibited the District of Columbia from banning the possession of handguns for self protection. The National Rifle Association then sued the municipalities. The district court dismissed the suits against Chicago and Oak Park because Heller dealt with the authority of the District of Columbia. In other, older cases the Supreme Court has refused to apply the Second Amendment to the states. The NRA appeals.

In their opinion, Chief Judge Easterbrook and Judges Bauer and Posner affirmed. The Court conceded that the Supreme Court, in Cruikshank, Presser and Miller, was presented with arguments based on the privileges and immunities clause. The NRA argues that the Second Amendment should be applied to the states under the "selective incorporation" approach that was not argued in those cases. The Court rejected that argument, stating that it is bound to follow the Supreme Court precedent if it has "direct application" to the case, even if a different argument is presented and even if the original reasoning has been brought into question over time. The Second Amendment precedent does have direct application as is evident from the Supreme Court's footnote 23 in Heller itself. There, the Supreme Court specifically commented that the continuing vitality of that precedent was not before it. The Court concluded that it is up to the Supreme Court to revisit the issue, even if the current legal theory is not the one addressed by the precedent. The Court added its own view that it is not convinced, as some others are, that the Supreme Court will change its approach to the Second Amendment when afforded the opportunity.

Tags: Opinion by Easterbrook, Constitutional Law, Fourteenth Amendment, Precedent, Privileges And Immunities Clause, Selective Incorporation

Court Ordered Joinder, Not Dismissal, Is The Proper Remedy, When A § 1983 Case Against A Sheriff Fails To Name The County As A Required Party

Posted on September 9, 2009 by Michael Rigney

ASKEW v. SHERIFF OF COOK COUNTY (May 18, 2009)

Carl Askew alleges that he was the victim of excessive force at the hands of Officer Lopez while a pretrial detainee in the Cook County Jail. He filed a lawsuit naming Lopez and the Sheriff. He included two theories of relief under a 42 U.S.C. § 1983 -- that Lopez used excessive force and that Lopez was deliberately indifferent to his safety. The district court dismissed his complaint on the grounds that he failed to name Cook County as a defendant. Askew appeals.

In their opinion, Judges Flaum, Rovner and Wood vacated and remanded. The Court concluded that the district court misapplied Rule 19. Rule 19 draws a distinction between joinder of parties when it is feasible and joinder of parties when it is not feasible -- because it would defeat jurisdiction or the party is beyond the personal jurisdiction of the court or the party could make an objection to the venue. Rule 19 (a)(1) addresses a "required party" whose joinder is feasible. Once such a party is identified, Rule 19 (a)(2) requires a court to order that the person be made a party. Here, the Court concluded that the lower court was correct in finding that Cook County was a required party, at least part of it. It correctly read Carver II for the proposition that an Illinois county is a necessary party in any suit seeking damages from its sheriff. Ironically, Askew waived his claim against the Sheriff in his appellate brief. Although he did so under the mistaken impression that the lower court was correct in dismissing the claim against the Sheriff, he is bound by his waiver. The case may still proceed against Lopez, however. The county is not an indispensable party in the case against Lopez. Any judgment entered against Lopez would be entered against him in his individual capacity notwithstanding any right on his part to recover the judgment from the county.

Tags: Opinion by Wood, Civil Procedure, Constitutional Law, Indispensable Party, Joinder, Monell, Section 1983, Waiver

A Valid Warrant To Search A Single-Family Residence Does Not Support The Continued Execution Of The Search Once The Officers Are Aware That The Building Is A Multiple-Unit Building

Posted on September 8, 2009 by Michael Rigney

GUZMAN v. CITY OF CHICAGO (May 13, 2009)

Sgt. Bonnstetter of the Chicago Police Department met with an ex-convict who wanted to share information regarding gang activity with the police. The informant provided valuable information and identified pictures of known gang members. He specifically advised Sergeant Bonnstetter that he was aware of the location of gang member Ruben Estrada. He told Bonnstetter that Estrada lived with his family in a single-family residence at an address on the west side of Chicago. He advised that he had seen Estrada at the residence with a handgun. He even drove by the house with an FBI agent and confirmed the location. Although there was a small sign in the front window, the agent assumed that it was a single family residence. Based on this information, Bonnstetter obtain an affidavit to search the premises and Estrada's person. When the officers arrived to execute the search warrant, they realized there was a separate door leading to a business and another door leading to a stairway to the second floor. At some point, it became clear that the building contained a first floor office, a first floor apartment, and a second floor apartment. The officers broke into the second-floor apartment and encountered Maira Guzman. With guns drawn, the officers searched the apartment -- but found nothing. Guzman brought a lawsuit against the City and several officers under 42 U.S.C § 1983, alleging that the search was unreasonable and a violation of her constitutional rights. The district court granted summary judgment to the City. Guzman appeals.

In their opinion, Judges Kanne, Rovner and Evans reversed and remanded. The Court identified the two different ways of evaluating an alleged violation of the Fourth Amendment. A court must look at both the issuance of a warrant and the execution of the warrant. Here, with respect to its issuance, the Court determined that there was sufficient indicia of reliability with respect to the informant to support probable cause. The informant provided information known to the police and identified a number of known gang members. With respect to the execution of the warrant, however, the Court disagreed with the district court. The Court specifically noted the "not uncommon" problems that arise with multiple living units. In executing the warrant in this case, the Court concluded that the officers were aware early in their search that the building was not a single-family residence, as expected and as described in the warrant. The proper course at that stage was to have called off the search. By continuing the execution of the warrant, the police violated Guzman's constitutional rights.

Judge Rovner wrote separately and concurred in the holding and reasoning. She did not join in that part of Judge Evans’ opinion in which, in dicta, he discussed Fourth Amendment rights in the context of civil actions as opposed to criminal suppression motions.

Tags: Opinion by Evans, Concurring Opinion By Rovner, Constitutional Law, Fourth Amendment, Section 1983, Unlawful Search, Unreasonable Search, Warrant

Foreign Corporation's Substantial Contacts In The United States Did Not Support Specific Jurisdiction Because They Ceased Before And Were Not Related To The Sale Of The Debtor, Which Was The Basis Of The Cause Of Action

Posted on September 4, 2009 by Michael Rigney

GCIU -- Employer Retirement Fund v. The Goldfarb Corporation (May 11, 2009)

The Goldfarb Corporation, a Canadian company, does not maintain a place of business or employees inside the United States. In 1995, Goldfarb purchased 60% of Fleming Packaging Corporation, a Delaware corporation. Between 1995 and 2003, Goldfarb was actively involved in the financial affairs of Fleming but did not directly control its activities. Members of the Goldfarb family were on the Fleming board and were corporate officers. In February of 2003, the Goldfarbs and Bank One negotiated an amendment to a loan agreement, pursuant to which the lenders agreed to a delay in exercising their rights of default and the Goldfarb agreed to relinquish control of the company (which they did). One of the reasons for the amendment was to allow Fleming to complete a sale of its operations as a going concern. Fleming filed for bankruptcy in May of 2003. Plaintiff, a multi-employer pension plan, filed an action in 2007 to collect Fleming’s withdrawal liability payments from Goldfarb. The district court dismissed the action, concluding that Goldfarb had insufficient contacts with the United States to sustain jurisdiction. The court also denied a request for further discovery. Plaintiff appeals.

In their opinion, Judges Bauer, Flaum and Kapala affirmed. The Court addressed the requirements for specific jurisdiction (plaintiff did not challenge the absence of general jurisdiction). The specific jurisdiction analysis consists of three steps: a) identify the contacts, b) determine whether the minimum constitutional threshold is met, and c) determine whether the contacts are related to the cause of action. The sole issue before the Court was whether Goldfarb's contacts in the United States were related to the plaintiff's cause of action. The Court examined Goldfarb's involvement with Fleming's lenders as they compared to the elements of plaintiff's cause of action. Fleming's withdrawal liability arose out of its withdrawal from the fund. The liability exists because of the nature of the sale of the business and its failure to comply with ERISA’s “safe harbor” provisions. All of Goldfarb's contacts occurred prior to February of 2003, when it surrendered all of its interest in Fleming. The Court found that these contacts were too attenuated to support specific jurisdiction. Finally, the Court concluded that the district court did not abuse its discretion in refusing to allow further discovery.

Tags: Opinion By Kapala, Constitutional Law, Jurisdiction, Minimum Contacts, Specific Jurisdiction

The Fourteenth Amendment Does Not Create A Protected Interest In Receiving A Pardon

Posted on August 3, 2009 by Michael Rigney

BOWENS v. QUINN (April 2, 2009)

The Illinois Constitution allows the governor of the state to grant reprieves, commutations and pardons "on such terms as he thinks proper." An Illinois statute provides the procedural framework for the exercise of the governor's power. Twelve people who had filed petitions for clemency brought an action against the governor, alleging a violation of their due process rights under the 14th Amendment because of the governor's failure to act on their petitions within a reasonable time. While a motion to dismiss was pending, the governor acted on the petitions of nine of the plaintiffs, granting one and denying eight. The lower court denied the governor's motion to dismiss. The governor brought this interlocutory appeal.

In their opinion, Judges Posner, Kanne and Wood reversed. The Court first addressed the issue of mootness with regard to the plaintiffs whose petitions had been processed. With respect to those plaintiffs whose petitions were denied, the Court determined that the claims were not moot on the grounds that they met the "capable of repetition, yet evading review" standard of Roe v. Wade. The claim of the plaintiff whose application was granted was, on the other hand, moot. On the merits, the Court concluded that there was no ground for the denial of due process claim. The 14th Amendment does not create a property or liberty interest in obtaining a pardon. The fact that the plaintiffs are not claiming an entitlement to a pardon, but merely an entitlement to a reasonably prompt decision, does not change the result.

Tags: Opinion by Posner, Constitutional Law, Fourteenth Amendment, Mootness, Pardon

State Agency's Use Of A Review Panel For Disciplinary Decisions Does Not Give An At-Will Employee A Constitutionally-Protected Property Interest In Continued Employment

Posted on July 31, 2009 by Michael Rigney

RUJAWITZ v. MARTIN (April 2, 2009)

Mark Rujawitz was an at-will employee of theIllinois Department of Transportation (IDOT) for thirteen years. When he violated an injunction requiring him to keep his distance from his ex-girlfriend, IDOT fired him. A disciplinary panel reviewed the discharge and recommended a lesser level of discipline. Rujawitz was reinstated and his discipline was changed to a suspension without pay. Rujawitz brought a § 1983 action against the secretary of IDOT, alleging that he was denied his substantive due process rights. The district court dismissed the complaint on the ground that Rujawitz had no property right in continued employment. Rujawitz appeals

In their opinion, Judges Bauer, Posner and Rovner affirmed. In order to establish a due process claim, the court stated, Rujawitz had to demonstrate a constitutionally protected property interest. The Court looked to state law for that determination. The Court could locate no ordinance, law or employment agreement that changed Rujawitz's status from an at-will employee to one with an expectation of continued employment. The Court rejected Rujawitz 's position that the presence and use of the disciplinary procedures established a property interest protectable under the Fourteenth Amendment.

Tags: Opinion by Bauer, Constitutional Law, Due Process, Fourteenth Amendment, Labor & Employment, Section 1983

"Quirky" Facts Of Case Demonstrate That, At A Minimum, The Constitutional Right Was Not "Clearly Established"

Posted on July 27, 2009 by Michael Rigney

CHAKLOS v. STEVENS (March 30, 2009)

Richard Chaklos and Andrew Wist were employees of the Illinois State Police ("ISP"). Their job was to train forensic scientists. Chaklos and Wist also owned Midwest Forensic Services ("MFS"). In 2004, Illinois allocated funds to process a back load of DNA evidence from rape victims. The ISP received some of the money in order to hire and train additional forensic scientists. The ISP decided to retain a Florida company for those services. When Chaklos and Wist learned of this decision, they sent a protest letter to the ISP on MFS letterhead. The letter criticized the ISP for its use of a no-bid process, it criticized the Florida company, and it indicated that MFS could provide the same training at a lower cost. Upon receipt of the letter, the ISP suspended Chaklos and Wist for violating its policy regarding secondary employment. Chaklos and Wist filed a § 1983 action, alleging retaliation for their exercise of First Amendment rights. The district court found that the letter was protected speech but granted summary judgment to defendants on the grounds they were entitled to qualified immunity. Chaklos and Wist appeal.

In their opinion, Chief Judge Easterbrook and Judges Rovner and Williams affirmed. The Court noted that the law with respect to qualified immunity had changed since the case was argued. At the time of argument, Saucier required courts to first determine whether a plaintiff had been deprived of a constitutional right and then determine whether that particular right was "clearly established." In Pearson, the Supreme Court recently concluded that lower courts could use their discretion in deciding which prong to address first. In addressing the First Amendment issue, the Court concluded that: a) plaintiffs were not speaking pursuant to their official duties under Garcetti, and b) looking at the content of the speech as a whole, it addressed a matter of public concern and was not motivated solely by personal interests. These conclusions led the Court to a balancing of the interests of the plaintiffs and their government employer. The Court noted the lack of disruption caused by the letter, the ISP's policy allowing secondary employment, the ISP's erratic enforcement of its secondary employment policy, and the dual purpose of the letter. Based on the closeness of this balancing, the Court determined that it was unnecessary to decide whether the letter was constitutionally protected. Instead, the Court concluded that it was not sufficiently clear to a government official that the conduct complained of would violate a constitutional right. The right was therefore not “clearly established." Defendants were entitled to qualified immunity.

Tags: Opinion by Williams, Constitutional Law, First Amendment, Qualified Immunity

Psychologist's Section 1983 Claim Against City Fails When He Is Unable To Present Evidence Linking City's Decision With Reports Of His Connection To A Conservative Group

Posted on July 22, 2009 by Michael Rigney

CAMPION, BARROW AND ASSOCIATES, INC. v. CITY OF SPRINGFIELD (March 24, 2009)

Dr. Michael Campion, through his firm, provided psychological evaluations. His clients included the City of Springfield. The services were provided pursuant to a contract executed in 2000 and automatically renewed annually. Timothy Davlin became mayor in 2003. Davlin was quite vocal in his criticism of psychological evaluations but continued the services on the advice of a city attorney. Beginning in mid-2004, several articles in the local newspaper criticized Dr. Campion for his involvement with a conservative group and his failure to disclose that involvement on his resume. An alderman reacted to the articles by pressuring Davlin to replace Dr. Campion. In mid-2005, the City Council unanimously approved a contract with a different psychologist. Although the city did not terminate the contract with Dr. Campion, it began referring all evaluations to the new psychologist. Dr. Campion brought an action against the city pursuant to § 1983, alleging that the city violated his First Amendment rights. The district court granted summary judgment to the city, concluding that Campion had not demonstrated that his speech was a motivating factor in the city's decision. Campion appeals

In their opinion, Judges Manion, Wood and Williams affirmed. The Court noted that the only issue before it was whether Campion produced enough evidence that his protected activity was a factor in the city's decision. The Court rejected Campion's argument that it was the mayor, not the City Council, that actually had the power to act. Illinois law authorizes only the City Council to enter into contracts. The evidence here supports the fact that it was the Council that acted. The Court concluded that there was a lack of evidence indicating that the City Council was retaliating against Campion because of his speech or associations.

Tags: Opinion by Wood, Association, Constitutional Law, First Amendment, Retaliation

Excessive Force Claim Fails When Officers Had A Reasonable Belief That Plaintiff Posed A Threat To The Safety Of Those Around Him

Posted on July 20, 2009 by Michael Rigney

MARION v. THE CITY OF CORYDON (March 23, 2009)

Having been caught shoplifting, Trent Marion fled from police, scuffled with police, fled again, and led police on a high-speed chase down a divided highway. For miles, Marion eluded the police and their attempts to stop him. Even with three deflated tires, Marion refused to stop. Eventually, Marion swerved into the median and drove toward the other side of the highway. The police surrounded and fired shots at the vehicle. Marion continued to rev his engine and shift from forward to reverse. The police continued firing at the vehicle until Marion stopped. Marion suffered serious gunshot wounds. He filed suit under §1983, claiming that the police violated his Fourth Amendment rights. The district court granted summary judgment to the defendants. Although Marion opposed the motion, he did not file an affidavit. He did submit an affidavit with a motion to reconsider. The court denied the motion. Marion appeals.

In their opinion, Judges Flaum, Williams and Kapala affirmed. The Court first concluded that it would not consider Marion's affidavit. The Court could consider it only if it consisted of newly discovered evidence, which it did not. On the merits of Marion's Fourth Amendment excessive force claim, the Court stated that it would apply an objective reasonableness standard and consider the totality of the circumstances. The Court concluded that it was reasonable for the police officers to believe that Marion posed a threat to their safety and the safety of nearby motorists while he was in the median. The amount of force they employed was therefore reasonable.

Tags: Opinion by Flaum, Constitutional Law, Fourth Amendment, Section 1983, Unreasonable Force

OFAC Satisfied Procedural Due Process In Penalty Assessment Under Iraq Sanctions Act By Providing Pre-penalty Notice, A Statement Of The Charges And An Opportunity To Respond

Posted on June 19, 2009 by Michael Rigney

CLANCY v. OFFICE OF FOREIGN ASSETS CONTROL (March 11, 2009)

Ryan Clancy, an American citizen, traveled to Iraq in January 2003. Clancy's purpose was to protest the United States’ involvement in Iraq by acting as a “human shield.” Upon his return to the United States, Clancy admitted to a customs official the reason for his trip. The Office of Foreign Assets Control ("OFAC") issued a Pre-penalty Notice ("PPN"), charging Clancy with providing services to Iraq by shielding facilities from possible military action. OFAC relied on regulations, promulgated post-September 11, restricting trade and transactions with Iraq. OFAC advised Clancy that he could be assessed a penalty of up to $250,000. It offered him the opportunity to make a written response. Clancy submitted a response in which he challenged the validity of the regulations. He did not dispute the factual basis of the charges. OFAC assessed a final civil penalty of $8,000. Clancy filed suit. The district court granted summary judgment against Clancy on all of his claims. Clancy appeals.

In their opinion, Judges Bauer, Kanne and Williams affirmed. The Court first addressed Clancy's procedural due process argument. The relevant inquiry, it said, is whether the procedures afforded presented an unreasonable risk of an erroneous deprivation of a protected interest. The Court concluded that the procedures afforded to Clancy -- the pre-penalty notice, a statement of the underlying facts, an opportunity to respond -- were constitutionally sufficient. The Court then addressed Clancy's challenge to the validity of the regulations. It rejected each of Clancy's arguments. It concluded: a) that the regulations were a proper exercise of OFAC's authority, b) that the travel restrictions were justified by national foreign-policy considerations, c) that Clancy's travel was not "inherently expressive" so as to invoke rights under the First Amendment, and d) that Clancy's actions in Iraq attempted to confer a benefit on the country and therefore met the definition of "services" as that term is used in the regulation.

Tags: Opinion by Williams, Constitutional Law, Due Process, First Amendment, Free Speech, OFAC, Right to Travel

Alteration of State Employee's Job Duties Was Not a Demotion Under State Law and Therefore Not a Deprivation of a Property Interest

Posted on April 17, 2009 by Michael Rigney

AKANDE v. GROUNDS (February 9, 2009)

Adetunji Akande was employed by the Illinois Department of Corrections. He served as a clinical casework supervisor in the clinical services division at the Robinson Correctional Facility (“RCF”). His job was subject to the Illinois Personnel Code. The Code provided that he could not be fired or demoted except for cause. The division was responsible for counseling and disciplinary activity at RCF. The division was run by a clinical services supervisor. The casework supervisors were intermediate managers. Their responsibilities included: resolving and reporting on serious disciplinary matters, supervising the delivery of services by the correctional counselors, evaluating correctional counselors, and performing other like duties. As of late 2003, Akande was the only supervisor. A new warden, Randall Grounds, arrived in early 2004. He came to doubt Akande’s job performance, particularly as it related to inputting disciplinary reports. He instructed Akande to personally input all data at the end of each day. Akande delegated the task. Grounds repeated his instructions. Akande continued to delegate the task. Ground referred Akande for discipline. His position that he was allowed to delegate the assigned tasks notwithstanding Grounds’ instructions was rejected. He received oral and written reprimands and a three-day suspension. In early 2004, Grounds removed Akande’s supervisory responsibilities. Shortly thereafter, Grounds presented Akande with a formal memorandum of responsibilities stating that all data entry for serious discipline was the supervisor’s responsibility. Akande left RCF with a “headache,” went on disability and never returned. Akande brought this action, alleging that he was effectively eliminated from his position, in which he had a property interest. The court granted summary judgment to defendants, holding that they were entitled to qualified immunity. Akande appealed.

In their opinion, Judges Flaum, Wood and Williams affirmed. The Court identified the threshold question as whether Akande has been deprived of a constitutionally protected property interest. The Court agreed that state law gave Akande a property right not to be removed from his job or demoted without cause. Under the Illinois Code, “demotion” is defined as the assignment of an employee to a job of a lower grade because of the employee’s performance in the higher grade job. Here, Akande was not terminated, not told to leave, not assigned to a different job – his duties were simply altered. Therefore, he was not deprived of a property interest. Since he failed to show the deprivation of a property interest, the Court did not need to the “clearly established” prong of the qualified immunity test.

Tags: Opinion by Flaum, Constitutional Law, Labor & Employment, Qualified Immunity

No-Fault System of Owner Liability For Traffic Light Violation Passes Rational-Basis Muster

Posted on February 24, 2009 by Michael Rigney

IDRIS v. CITY OF CHICAGO (January 5, 2009)

The City of Chicago (the City”) has installed cameras at intersections since 2003. They are used to identify drivers who fail to obey red lights. The ordinance makes the owner (or, in the case of a leased vehicle, the lessee) of the vehicle liable for the fine – regardless of who was driving at the time. A group of car owners brought suit. Each had been fined for a traffic violation. In each case, however, someone other than the car’s owner was driving the car at the time of the violation. The plaintiffs allege that the ordinance violates due process and equal protection. The court granted summary judgment for the City. Plaintiffs appeal.

In their opinion, Chief Judge Easterbrook and Judges Ripple and Rovner affirmed. The Court quickly disposed of plaintiffs’ substantive due process argument. It noted the absence of a fundamental liberty interest – a prerequisite for substantive due process. The Court then considered the enforcement system under the rational-basis doctrine. Again, it seemed to have little difficulty in finding the ordinance rational. The owner-liable system reduces the cost of enforcing the law and improves compliance with the law. The facts that it raises revenue and adopts a system different from the state system do not make it irrational. The distinction between owners and lessors is not discriminatory – it is, in fact, the rational approach. Finally, the Court rejected the plaintiffs’ procedural due process arguments. Defenses and objections must be made at a hearing and reviewed in state court before they can be the subject of a federal court proceeding.

Tags: Opinion by Easterbrook, Constitutional Law, Equal Protection, Procedural Due Process, Substantive Due Process

§ 1983 Claim: Summons and Travel Restrictions Do Not Amount to a Fourth Amendment Seizure; Withholding Evidence Does Not Constitute a Brady Violation When Defendant is Acquitted and Earlier Disclosure Would Not Have Resulted in Dismissal of Charge

Posted on February 12, 2009 by Michael Rigney

BIELANSKI v. COUNTY OF KANE (December 18, 2008)

Kane County set up a Child Advocacy Center (“Center”) to coordinate the investigation and prosecution of child sexual abuse. The Child Advocacy Advisory Board (“Board”) is responsible for drafting the policies and procedures for those investigations and prosecutions. Kathryn Berg and David Byrne were a child protection investigator and police officer, respectively, assigned to the Center. [The facts that follow, given the posture of the appeal from a motion to dismiss, are taken from the complaint.] In mid-2001, Berg and Byrne interviewed a six-year old boy and his parents. The boy claimed he had been sexually abused by “Lorri.” Berg and Byrne failed to follow accepted techniques used in child victim interviews. They did not use techniques to identify the perpetrator and did not even ask the boy to describe her. Within days, Lorri Bielanski, a fifteen-year-old neighbor of the boy, was notified that credible evidence existed that she had sexually assaulted the boy. Sometime shortly after Berg and Byrne’s interview of the boy, they learned that: a) he was taking medication for Attention Deficit Hyperactivity Disorder, b) he was in special education classes, c) he was known, on two occasions, to have undressed with others and tried to get others to undress, d) his parents confronted him about the undressing incidents and punished him, and e) his parents suggested to him that he may have been sexually abused. Berg and Byrne did not disclose this information to the prosecutors or Bielanski. The county filed a Petition for Adjudication of Wardship, alleging the commission of two sexual assault felonies. As a result, Bielanski was forced to attend court hearings and an interview with a probation officer and was not allowed to travel out of the state without court permission. Bielanski was eventually acquitted of all charges and was successful in getting her record expunged. She filed a complaint against the County, the Center, the Board, Berg, and Byrne. Based on § 1983, she alleged: a) that the defendants violated her Fourth Amendment rights by compelling her to attend the court hearings and restricting her movement, and b) that Byrne and Berg violated her rights to a fair trial and due process by withholding the information they had about the boy. The district court granted defendants’ motion to dismiss. Bielanski appeals.

In their opinion, Judges Posner, Kanne and Rovner affirmed. The Court began with Bielanski’s Fourth Amendment claim. In order to make out such a claim, the plaintiff must allege a seizure and that it was unreasonable. Since Bielanski was not seized in the normal sense of an arrest, the Court reviewed Justice Ginsburg’s “continuing seizure” concurrence in Albright and other circuits’ approaches in similar situations. In Albright, Justice Ginsburg supported a Fourth Amendment analysis whereby a defendant who was arrested, released, and then summoned back to court based on the misleading testimony of a police officer could state a claim for unlawful seizure. No other Justice has adopted the analysis. The Court concluded that a summons, even when combined with travel restrictions and a forced probation officer interview, is an insufficient restraint on freedom to constitute a seizure. The Court then addressed the fair trial claim. The elements of that claim are that: a) the evidence is favorable to the accused, b) that it was suppressed by the government, and c) that it was material. The Court noted that materiality was the only element in dispute and that the Supreme Court had not addressed a case in which evidence was withheld and the defendant was later acquitted. Several other circuits have concluded that a Brady claim cannot survive an acquittal or dismissal of charges. The Court concluded that Bielanski had no Brady claim since earlier disclosure of the evidence would not have resulted in a dismissal of the charges.

Tags: Opinion by Rovner, Brady Violation, Civil Rights, Constitutional Law, Due Process, Fourth Amendment, § 1983

Class-of-One Equal Protection Plaintiff's Failure to Allege Facts Negating Any Rational Basis For Government Classification Results in Dismissal of Complaint

Posted on January 28, 2009 by Michael Rigney

FLYING J INC. v. CITY OF NEW HAVEN (December 5, 2008)

Flying J develops and operates travel plazas for truck drivers and other travelers. It purchased 50+ acres in New Haven, Indiana (the “City”) to develop a new travel plaza. The City opposed the development and took the position that it was not allowed under the then-current zoning. Flying J ultimately prevailed in the Indiana state courts on its challenge to the City’s position. Undaunted, the City amended its zoning ordinance to limit developments of this type to two acres. The Flying J development was the only parcel affected by this limitation. The City held several public meetings on the amendment but never gave Flying J specific notice of them. In August of 2007, the City advised Flying J that its development must comply with the two acre rule. Flying J filed suit in September, alleging violations of its rights under the U.S. and Indiana Constitutions. The district court dismissed for failure to state a claim. Flying J appeals.

In their opinion, Judges Bauer, Flaum and Williams affirmed. The Court first addressed the City’s position that the Court lacked jurisdiction under the principles of Williamson County. The Supreme Court in Williamson County held that takings claims in land use cases are not ripe until the local authority has reached a final decision, including a decision on a variance application and compensation. Courts have applied the doctrine to takings claims even when they are labeled as due process or equal protection claims. The Court noted that it has created an exception for claims alleging the malicious conduct of a government agent unrelated to a legitimate state objective. Flying J’s allegations of the City’s protracted litigation, its covert amendment to the ordinance, the ordinance’s application only to Flying J, and the potential conflicts of interest of several commission members fit its claim within that exception.

The Court next addressed whether Flying J stated a claim. Relying on its precedent in Wroblewski and Lauth, the Court identified the pleading standard for a class-of-one equal protection claim. In those cases, the plaintiff must negate any set of facts that provides a rational basis for the classification challenged. Animus of the defendant comes into play only after the plaintiff has pled facts that show the irrationality of the government’s conduct. Flying J does allege facts that would show that the City took its actions in response solely to Flying J’s development but it does not allege facts to establish that the zoning amendment was irrational. Flying J’s allegations therefore do not overcome the presumption of rationality the government enjoys in cases of this nature.

Tags: Opinion by Flaum, Civil Procedure, Class-of-One, Constitutional Law, Constitutional Law, Equal Protection, Jurisdiction, Property, Zoning

Rooker-Feldman Doctrine Deprives Federal Court of Jurisdiction When the Gravamen of the Complaint is That a State Court Order Was Erroneous

Posted on January 27, 2009 by Michael Rigney

JOHNSON v. ORR (December 04, 2008)

David Johnson obtained a certificate of purchase for a tax-delinquent piece of land in Cook County (the “County”). The certificate allowed him to acquire the property by following certain notice requirements and by then petitioning the court. He complied with the notice requirements. Before he petitioned the court, the County realized that its determination of delinquency was in error. The County and Johnson agreed to an order, entered by the court, declaring the tax sale in error and directing the cancellation of the certificate and return of the purchase price. Notwithstanding the order, Johnson petitioned the state court for a deed. Johnson later filed suit in federal court. He alleged that the County’s failure to issue the deed violated his constitutional rights and the Interstate Land Sales Full Disclosure Act, as well as various other state statutory and common laws. The court granted defendant’s motion to dismiss, ruling that the complaint sought review of a state court decision in violation of the Rooker-Feldman doctrine and that jurisdiction was barred by the Tax Injunction Act (“TIA”). Johnson appeals.

In their opinion, Judges Ripple, Evans and Tinder affirmed. The Court first addressed the Rooker-Feldman doctrine. That doctrine deprives federal courts (except the Supreme Court) of jurisdiction to hear a party complain about the effects of a state court judgment. Although Johnson attempted to style his request for relief as something other than an attack on the state court judgment, the Court looked beyond the complaint to identify the actual injury. Johnson’s injury, the state court’s failure to grant him a tax deed, comes directly from the order entered by the court canceling the certificate. The gravamen of his complaint is that the court’s order was erroneous. The district court therefore lacked subject matter jurisdiction of Johnson’s constitutional claims. Johnson also alleged a violation of the Interstate Land Sales Full Disclosure Act (the “Act”), a federal statute. Although a claim pursuant to a federal statute would normally provide subject matter jurisdiction, the Court stated that such a claim should be dismissed if it is “wholly insubstantial and frivolous.” The Court concluded that Johnson’s claim was just that. The Act applies only to sales of real estate. Here, the County did not sell the property and Johnson did not buy the property. Even if there was a sale, the Court observed that the Act would not apply because it contains an exemption for a sale by a government body. Although it did not have to, the Court did briefly address the TIA issue. It disagreed with the district court’s conclusion that the TIA applied. The TIA only applies where the relief requested would reduce the State’s tax benefit or impede the collection of taxes. The Court found neither present in the case.

Tags: Opinion by Ripple, Rooker-Feldman, Constitutional Law, Jurisdiction, Property, State Tax, Tax Injunction Act, Taxation

County Employee's Report of Misconduct is a Requirement of Her Job and Therefore Not Protected Speech Under Garcetti

Posted on January 20, 2009 by Michael Rigney

HOUSKINS v. SHEAHAN (November 25, 2008)

Virgean Houskins was an employee of the Cook County Department of Corrections. One September morning in 2001, she found herself sitting in her car in the parking lot of her place of employment, waiting for a parking space to open up. Correctional Officer Keith entered the lot and took what Houskins believed was her space. Houskins uttered some profanities about Keith (which he heard) and proceeded to park in another space. A verbal confrontation between the two ended with Keith striking Houskins in the face. Correctional Officer Calderone arrived a few moments later but did nothing. Houskins reported to work, filed an incident report, and also reported the incident to her supervisor, Tolbert. Tolbert took Houskins and Bowers to the Internal Affairs Division (“IAD”) to make out a complaint. Houskins also filed a police report. The IAD dismissed the charges against Keith and Calderone as not conclusive but upheld an obscene language charge against Houskins. Upon further department review, the finding against Houskins was upheld but the dismissal of the complaint against Keith and Calderone was reversed. Houskins filed a complaint pursuant to 42 U.S.C. § 1983 against the Sheriff and Cook County, alleging a) that the Sheriff retaliated against her for filing the complaints and charges against Keith, b) that a “code of silence” policy existed for correctional officers and those who violated it were subject to retaliation, and c) that the Sheriff employed a disciplinary system in which certain officers with clout were exempted from discipline. Houskins also brought pendant state court claims of assault and battery against Keith. At trial, the jury returned a verdict against the Sheriff and Keith. It awarded $240,000 against the Sheriff and $10,000 in compensatory and $50,000 in punitive damages against Keith. The Sheriff and Keith appeal.

In their opinion, Judges Bauer, Manion and Williams affirmed the judgment and damages award with respect to Keith and reversed and remanded with respect to the Sheriff. The Court first addressed two preliminary procedural issues. Houskins argued that the Sheriff could not appeal a denial of summary judgment after a jury verdict and also that the Sheriff waived the argument by not raising it in the final pre-trial order. The Court noted that while denials of summary judgments motions based on the sufficiency of the evidence are generally not reviewable, the Sheriff’s motion raised a question of law – whether Houskins’ speech was constitutionally protected – and was therefore appealable. The Court also held that the failure to raise it in the final pre-trial order did not constitute a waiver. On the merits of the speech issue, the Court looked to the Supreme Court’s Garcetti decision. Garcetti requires a court first to decide whether a plaintiff is speaking as a private citizen on a matter of public interest. Houskins complained of retaliation for two different instances of speech – her internal complaint and her police report. The Court concluded that her internal complaint was not protected speech. She was required to report misconduct as part of her official job responsibilities. With respect to the police report, the Court concluded that it was not part of her job responsibilities but that she was speaking about a matter of purely personal interest. Her purpose in filing the police report was not to air a grievance about conditions at the jail or her safety as an employee. The Court found that Houskins’ speech was not constitutionally protected and that the lower court therefore erred in denying the Sheriff’s motion for summary judgment. The Court added that Houskins’ Monell claims that the Sheriff had a policy of retaliation and selective discipline had to fail as well. A Monell claim cannot stand where the alleged official policy did not result in a constitutional violation.

With respect to the jury’s verdict for Houskins on her claims of assault and battery against Keith, the Court rejected each of Keith’s arguments on appeal. It held that a) the district court properly asserted supplemental jurisdiction over the state law claims since they pertained to the same set of circumstances alleged in the federal claim, b) the district court did not abuse its discretion in denying a separate trial for Keith, c) the judge’s comments to Keith’s counsel did not indicate bias, and d) the award of punitive damages was not excessive. The Court affirmed the judgment against Keith.

Tags: Opinion by Bauer, 42 U.S.C. § 1983, Garcetti, Monell, Civil Procedure, Civil Rights, Constitutional Law, First Amendment, Protected Speech

First Amendment Does Not Prohibit a Firing of State Employee Based on Party Affiliation if Party Loyalty is Necessary to Perform the Job Effectively

Posted on January 13, 2009 by Michael Rigney

POWERS v. RICHARDS December 2, 2008

Robert Powers was employed by the State of Illinois in 2002 as Deputy Director of the Department of Central Management Services. Powers is alleged to have been part of a scheme to help certain state employees keep their jobs. The employees had been appointed to their jobs for four-year terms. During those terms, they could not be fired but for cause. Instead of allowing their terms to expire shortly after the election of a new governor and risk being replaced, these employees voluntarily resigned before the election. They were then reappointed to new four-year terms. Powers signed the personnel forms that were necessary for the scheme to succeed. Powers did not have the authority to sign the forms and did so knowing that the Director would not. In October of 2002, Powers took a new job as Executive Secretary of the Civil Service Commission (“Commission”). The role of the Commission is to hear appeals of state employees regarding discharges and discipline, modify personnel rules, and investigate personnel violations. Powers’ role as Executive Secretary included drafting rules and regulations, making recommendations regarding resolution of disputes, and interpreting the Personnel Code, among others. When a new governor took office in January of 2003, he began an investigation into the late appointments. The governor’s office concluded that Powers was involved in the scheme and referred its findings to the Commission. The Commission suspended Powers and authorized its Chairman to conduct a hearing. The Chairman was authorized to fire Powers if he did not produce exculpatory evidence at the hearing. The Chairman notified Powers of his rights and held a hearing. The Chairman recommended that Powers be fired – and he was. Powers received a post-deprivation hearing before an ALJ. The ALJ concluded that the firing was warranted. Powers brought suit under 42 U.S.C. § 1983. He alleged that his firing was a deprivation of his right to association because it was on account of his party affiliation. He also alleged a lack of pre-deprivation procedural due process. The defendants conceded, for purposes of summary judgment, that Powers was fired because he was a Republican. The district court granted summary judgment to all defendants. Powers appeals.

In their opinion, Judges Manion, Rovner, and Evans affirmed. The Court stated that the First Amendment does not prohibit a firing based on party loyalty if that loyalty is necessary to properly perform the job. The considerations in determining that necessity include whether the position allows for meaningful input into government decision-making and involves political discretion. The Court reviewed Powers’ job description to decide whether the position was such a position. The Court recited the job’s numerous responsibilities and concluded that they did include broad discretion to make policy, interpret the law, and speak on behalf of the Commission. The position is therefore one into which an incoming administration can appoint someone of its own party. With respect to Powers’ procedural due process argument, the Court noted that when a person is afforded a full post-deprivation hearing, a pre-deprivation hearing satisfies due process if it includes notice, an explanation of the evidence, and an opportunity to be heard. Since Powers concedes that he had all that is required, he cannot prevail. Finally, the Court was not persuaded by Powers’ unsupported claim that the Commission had already decided to fire him before the hearing.

Tags: Opinion by Rovner, 42 U.S.C. § 1983, Civil Rights, Constitutional Law, Due Process, Labor & Employment

No Constitutional Remedy for Citizen Murdered by Prisoner on Work Release

Posted on December 19, 2008 by Michael Rigney

SANDAGE v. BOARD OF COMMISSIONERS (November 24, 2008)

Sheena Sandage-Shofner twice called the sheriff’s department in Vanderburgh County and complained that a man named Moore was harassing her. Moore was in the sheriff’s custody, serving a prison term for robbery. Sandage-Shofner’s complaints arose at times when Moore was out of prison on work release. Two days after her second complaint, Moore murdered Sandage-Shofner and two other people and then took his own life. Christine Sandage and Arthur Shofner brought a suit under § 1983, claiming that the County’s failure to reimprison Moore deprived their decedents of their lives without due process in violation of the Fourteenth Amendment. The district court dismissed for failure to state a claim. Sandage and Shofner appeal.

In their opinion, Chief Judge Easterbrook and Judges Posner and Rovner affirmed. Relying principally on the Supreme Court’s decision in DeShaney, the Court held that there is no federal constitutional duty to protect the citizenry from private violence, nor is there a right to be rescued from a danger that was not created by the government. There is a right not to be harmed, a right illustrated, for example, by prisoner cases alleging deliberate indifference to medical needs. Here, the Court concluded, the government did not restrict Sandage-Shofner’s access to aid and it took no affirmative steps that increased the danger to Sandage-Shofner. It simply failed in its moral obligation to protect its citizens from private harm, for which there is no federal constitutional remedy.

Tags: Opinion by Posner, Civil Rights, Constitutional Law, Due Process, § 1983

License Plate Messages Are Private Speech in a Non-Public Forum - Illinois' Rejection of "Choose Life" is Viewpoint Neutral and Reasonable

Posted on December 5, 2008 by Michael Rigney

CHOOSE LIFE ILLINOIS, INC. v. WHITE (November 7, 2008)

The State of Illinois offers a wide array of license plates that, in addition to an identifying combination of numbers and letters, contain a message or symbol. A vehicle owner can, for example, purchase plates that identify her alma mater, favorite charity, civic organization, or social cause. The Illinois legislature, with irrelevant exceptions, has authorized each specialty plate by statute. Some part of the proceeds from the sale of the plates typically goes to the organization whose message appears on the plate. Choose Life, Inc. (“CLI”) is a not-for-profit company. Its mission is to promote adoptions. CLI collected more than 25,000 signatures from prospective purchasers of a plate bearing the words “Choose Life.” It applied to the Secretary of State (the “Secretary”) for the issuance of the plate. When told by the Secretary that he would not issue a plate without authorizing legislation from the legislature, CLI embarked on a several-year-long unsuccessful campaign to get the legislature to authorize the plate. CLI brought suit against the Secretary alleging a violation of its First Amendment free-speech rights. The court below held that the Secretary did not need legislation, that the program created a private speech forum, and the Secretary’s refusal to issue the “Choose Life” plate was unlawful viewpoint discrimination. The court granted summary judgment to CLI and ordered the Secretary to issue the plates. The Secretary appeals. Pending appeal, the legislature amended the statute to explicitly require legislative approval before a specialty plate could be issued.

In their opinion, Judges Manion (concurring), Evans, and Sykes reversed and remanded. The Court first cursorily dealt with several preliminary issues. In a footnote, the Court recognized a split in the circuits over jurisdiction of specialty license plate cases on both standing and Tax Injunction Act bases. The Court found sufficient allegations of injury to support standing and sided with those circuits that held the Tax Injunction Act did not apply. In another footnote, it dismissed CLI’s argument that the program was facially unconstitutional. The Court held that a legislature need not – indeed, cannot – adopt standards that would control future legislatures. Lastly, the Court held that it would apply the amended statute. Particularly when a party seeks only prospective relief, a court will apply the law as it exists at the time of the appeal.

The Court also recognized a split in the circuits on the next step of its analysis – whether the speech is government speech, private speech, or a hybrid. It noted the Fourth Circuit’s Sons of Confederate Veterans and Rose cases in which that court held that specialty plates gave rise to private or a mixture of private and government speech. That court relied mostly on the facts that the state exercised little editorial control and the vehicle owners were the real speakers. The Court contrasted the Fourth Circuit cases to the later Sixth Circuit decision in Bredesen and the Ninth Circuit decision in Stanton. Relying on an intervening Supreme Court decision in a different speech context and Tennessee’s “total government control” over the design and message of the specialty plate, the Sixth Circuit held that the speech was government speech. The Ninth Circuit rejected the Sixth Circuit’s approach and its reading of the Supreme Court case. It agreed with the Fourth Circuit and held that specialty license plates are not government speech, but must be treated and analyzed as private speech. The Court believed the Fourth and Ninth Circuit approach to be the better one and adopted it. Although the state has approved the message, the most obvious speakers are the vehicle owners who choose to display it.

Having identified the speech as private, the Court proceeded to a forum analysis. Speech restrictions in a traditional or designated public forum come under strict scrutiny. Restrictions on speech in non-public fora, on the other hand, must merely avoid discriminating against certain viewpoints and “be reasonable in light of the forum’s purpose.” The Court concluded that license plates are neither traditional nor designated public fora. They are principally used to identify vehicles and serve only as expressions of ideas in a very limited context. They should be judged as speech in a non-public forum. Here, Illinois excluded all specialty plates on the subject of abortion. The Court held that this was not a discrimination based on viewpoint, but one based on content, and thus permissible. Finally, the Court had “no trouble” finding the restriction reasonable. Even though not government speech, the message on a license plate is closely associated with the state. The Court found it reasonable for a state to decide to maintain a neutral position on a subject like abortion.

Judge Manion concurred in order to raise three points. First, he took issue with the basis for the majority’s conclusion that Illinois entirely excluded the subject of abortion from its program. The only decision evident in the record was the state’s decision not to allow the “Choose Life” plate at issue. Second, he disagreed that the message of CLI and the “Choose Life” plate was pro-life. He viewed it as a “broader middle ground” that did not take a position on the legality of abortion but merely supported more adoptions as an alternative to abortion. Third, he noted his belief that a state could approve a “Choose Life” message and reject abortion-related plates and yet remain viewpoint neutral.

Tags: Opinion by Sykes, Concurring Opinion, Constitutional Law, First Amendment, Specialty Plates

Person Who Directs Employee's Performance is Not a Supervisor Under Title VII if He Does Not Have Authority to Affect the Terms and Conditions of Employment

Posted on November 25, 2008 by Michael Rigney

ANDONISSAMY v. HEWLETT-PACKARD CO. (November 7, 2008)

Sanjay Andonissamy, a French citizen of Indian ancestry, began his employment with Hewlett-Packard (“HP”) in April of 2001. He was in the country on an HP-sponsored H-1B visa. [The following is Andonissamy’s version of the story – HP’s version differs greatly] After the events of September 11, 2001, Ken Smith, Andonissamy’s supervisor, began to make derogatory racial, ethnic, and nationalist remarks to and about Andonissamy. Andonissamy frequently complained to Smith’s supervisor. Smith placed Andonissamy on remedial performance plans, allegedly in retaliation for Andonissamy’s complaints about Smith. Andonissamy began taking medication for anxiety and depression in 2002. He was being treated, but his physician never placed him on any restricted work schedule. Andonissamy’s condition worsened in early 2003 after the deaths of his brother and nephew. In May of 2003, Smith made a false report to the company implicating Andonissamy as a security threat. HP fired Andonissamy on June 23, 2003. On September 16, Andonissamy filed an EEOC complaint alleging national origin discrimination. The EEOC dismissed his complaint and issued a right to sue letter. Andonissamy filed a complaint in federal court in April of 2004. In addition to his complaints of national origin discrimination under Title VII and 42 U.S.C. § 1981, Andonissamy added a Family and Medical Leave Act count. In November of 2005, Andonissamy added Smith as a defendant on an assault count. The district court dismissed Smith and granted summary judgment to HP. Andonissamy appeals.

In their opinion, Judges Flaum, Williams, and Sykes affirmed. The Court first addressed Andonissamy’s Title VII hostile work environment claim. In order to survive summary judgment, Andonissamy had to show that a) he was subjected to unwelcome harassment, b) the harassment was based on his national origin, c) it was severe and pervasive enough to amount to a hostile and abusive environment, and d) there exists a basis for employer liability. The Court did not address the first three elements because it found no basis for employer liability. An employer can be vicariously liable for the conduct of a supervisor but can only be liable for the conduct of a co-worker if the company was negligent in discovering or remedying the harassment. A supervisor for purposes of Title VII is the person with the ability to affect the terms and conditions of the plaintiff’s employment. Smith, although he was Andonissamy’s “supervisor” in the sense that he directed his performance, was not a Title VII supervisor. There was no evidence that Smith was able "to hire, fire, promote, demote, discipline or transfer" Andonissamy. In order to hold HP liable for the acts of Smith as co-worker, Andonissamy had to establish that he complained or that the discrimination was so pervasive that HP’s knowledge could be inferred. Although Andonissamy did complain to Smith’s supervisor, he did not specifically complain about national origin discrimination. The Court agreed with the district court that Andonissamy therefore did not make out a Title VII claim. With respect to his companion § 1981 claim, the Court stated that a plaintiff can proceed under the direct or indirect method. The direct method requires evidence that an adverse employment action was based on the plaintiff's national origin. The Court found no such evidence in the record. Under the indirect method, a plaintiff must establish, among other elements, that he was meeting his employer’s legitimate performance expectations. The Court noted that the record contained numerous references to Andonissamy’s performance problems. The Court concluded that Andonissamy was therefore unable to establish a § 1981 claim under either method.

Andonissamy’s retaliation claim could also be established under the direct or indirect method. The indirect method for retaliation, like discrimination, contains an element that Andonissamy was meeting HP’s performance obligations. The Court rejected Andonissamy’s indirect method for establishing his retaliation claim for the same reason it rejected it for his discrimination claim. Under the direct method, Andonissamy had to establish that: a) he engaged in statutorily protected activity, b) his employer took an adverse employment action, and c) there was a causal connection between the two. The Court held that his complaints to HP did not include complaints of national origin discrimination. He was thus unable to establish the statutorily protected activity element. The Court concluded that he failed to establish a retaliation claim under either method. With respect to the FMLA count, the Court noted that Andonissamy never asked for any leave and did not exhibit any dramatic changes in behavior that would have put HP on notice of a need for leave. The Court agreed with the district court that Andonissamy failed to meet his burden under the FMLA.

Finally, the Court addressed Andonissamy’s assault claim against Smith. The assault claim was added to the case after the statute of limitations on the claim had expired. Andonissamy argued that the claim related back to the original claim and was thus permissible under FRCP 15(c). The Court affirmed the dismissal, stating that a claim against a new defendant relates back only when there is a case of mistaken identity. Since Smith supervised Andonissamy for years, that cannot be the case here.

Tags: Opinion by Flaum, Title VII, Civil Procedure, Civil Rights, Constitutional Law, EEOC, Labor & Employment, National Origin Discrimination, Retaliation, Statute of Limitations, hostile work environment, § 1981

Public Employee's Report of Her "Concerns" Fit Within Her Job Responsibilities and Was Not Protected Speech Under Garcetti

Posted on November 24, 2008 by Michael Rigney

TRIGILLO v. SNYDER (October 31, 2008)

The Illinois Department of Corrections (“Department”) created a new position in 1999 dedicated to procurement matters. The Department hired Tracy Trigillo, an attorney, into the position. Her responsibilities included managing the Department’s contracting, purchasing, leasing, and inventories. She advised department officials on legal matters. She also was responsible for ensuring that contracts were properly bid and in compliance with the Illinois Procurement Act. From early in her employment, Trigillo had concerns about the Department’s procurement practices. She frequently advised her superiors of her concerns, with little effect. In late 2000, she drafted a report that summarized many of her concerns. The report was addressed to the Department of Central Management Services (“CMS”), an agency that provided procurement support to other state agencies. Trigillo also sent the report to the state Attorney General (“AG”). The report contained some allegations of misconduct, although it was principally addressed to policy disputes. Also in 2000, one of Trigillo’s staff members told her that Department officials had rigged the bid of a contract to benefit a friend of the governor. Although the incident predated Trigillo’s tenure in the Department, she was responsible for monitoring an extension of the contract. She reported the information to the FBI but did not advise her superiors that she had done so. When her term of employment was up for renewal in late 2001, the Department chose not to renew. Although she had received acceptable performance reviews during her tenure, her supervisor stated that her approach to procurement principles was “over-zealous” and that she was not a team player. Trigillo brought an action under 42 U.S.C. § 1983, alleging that she was non-renewed in retaliation for her reports of misconduct. The district court granted summary judgment to the defendants. The court separated her speech into three categories. The court held that: a) her routine communications with her superiors were part of her normal job duties and not as a citizen speaking out on matters of public interest, b) her CMS report referred principally to policy disputes and, to the extent it did raise matters of public interest, the Department’s interest in effective operations outweighed Trigillo’s interest as a citizen, and c) her report of misconduct to the FBI was constitutionally protected but there was no evidence that the person who decided not to renew her contract knew about it. Trigillo appeals.

In their opinion, Judges Rovner, Evans, and Williams affirmed. The Court first observed that the district court entered judgment just prior to the Supreme Court’s decision in Garcetti v. Ceballos. Garcetti reaffirmed the limitations imposed by the First Amendment on a public employer’s ability to restrict the “liberties employees enjoy in their capacities as private citizens.” The role of the Court is to determine whether the speech is that of an employee doing her job or that of a private citizen reporting on a matter of public interest. Garcetti requires an inquiry into whether the speech in question relates to the employee’s official obligations, even the more general ones. Trigillo conceded on appeal that her routine communications did not meet the Garcetti standard. The Court addressed the other two categories. The Court rejected defendants’ argument that the CMS report was per se “official” because it was required by statute. The Court noted that the statutory duty was very broad and applied to all employees. Instead of looking at a broad duty, the Court looked at the speech at issue and the responsibilities of the employee. The Court held that the CMS report did not meet the Garcetti standard. The report: a) made no “accusations”, b) sought “guidance” on procurement issues, c) was written on Department letterhead, d) was signed by Trigillo in her official capacity, and e) offered her group’s resources to any investigation. The Court held that the report fit squarely within Trigillo’s responsibilities of managing the procurement practices of the Department. With respect to the FBI report, the Court agreed with the district court that Trigillo had presented no evidence that the decision-maker even knew that she made the report. It could not have been the reason for her non-renewal.

Tags: Opinion by Evans, Civil Rights, Constitutional Law, Garcetti, Labor & Employment, Retaliation, § 1983

Failure to Comply With Settlement in Federal Civil Rights Case Does Not Amount to Retaliation

Posted on November 10, 2008 by Michael Rigney

KAY V. BOARD OF EDUCATION (October 27, 2008)

Gail Kay taught in the Chicago public school system. After she retired in 1994, she brought a § 1983 action against the Board of Education (“Board”). She alleged that the Board penalized her on account of her speech. The parties settled the litigation in 1996 and her case was dismissed. In the settlement, the Board offered to rehire Kay into an available future position. In 1997, she was offered an opportunity to return to her former school. She taught for seven more years – yet she never received another paycheck. After retiring again in 2004, she brought suit against the Board in federal court to enforce the 1996 settlement, alleging that her seven years of teaching without pay was a breach of the settlement. The district court dismissed the case on its own accord for “lack of venue” because Kay was governed by a collective bargaining agreement that required arbitration. Kay appeals.

In their opinion, Chief Judge Easterbrook and Judges Sykes and Tinder vacated the judgment of the court and remanded with instructions to dismiss for lack of subject matter jurisdiction. First, the Court listed several reasons why the court erred in dismissing the suit because of the collective bargaining agreement’s arbitration clause: a) only the union and employer can invoke the clause, b) a settlement of a dispute is not arbitrable as a claim arising under the agreement, c) a collective bargaining agreement cannot require the arbitration of civil rights claims, and d) the Board cannot compel arbitration with a volunteer, which they claim is Kay’s status. The panel also criticized the court below for acting independently, without benefit of the views of the parties.

Although the Court held that the lower court erred in dismissing the complaint, it identified (and asked for supplemental briefing on) a different problem. The Supreme Court’s decision in Kokkonen v. Guardian Life Ins. Co. makes clear that the vehicle for enforcement of a settlement of a federal case is a contract claim, which cannot be brought in federal court unless it qualifies independently under diversity principles. Apart from a settlement, a state’s wage-payment statute is the proper vehicle for a claim for unpaid wages. Kay conceded that she has no federal claim to enforce the settlement or for unpaid wages. She asserted, however, a claim that the Board’s failure to abide by the settlement is further retaliation for her assertion of constitutional rights. The only assertion of rights she maintains, however, are those that pre-dated the settlement. The Court noted that the Board’s failure to pay cannot be deemed a revived retaliation claim under Kokkonen. Finally, the panel did consider whether the Kokkonen rule applied in the context of a state actor defendant. It held that the Constitution does not require a state actor to keep its promise; it only requires some process before depriving a person of property. Kay’s opportunity to litigate her case in state court is process enough.

Tags: Opinion by Easterbrook, Civil Procedure, Civil Rights, Constitutional Law, Jurisdiction, Labor & Employment, § 1983

Interlocutory Appeal of Denial of Qualified Immunity Dismissed When Appellants Relied on Disputed Facts

Posted on November 4, 2008 by Michael Rigney

VIILO v. EYRE (October 27, 2008)

Virginia Viilo was enjoying a quiet August evening in her backyard, accompanied by several family members and Bubba, her dog. Suddenly, Bubba heard a commotion in Viilo’s front yard and ran down the side of the house. It seems that six Milwaukee police officers, acting on a tip that a felon had entered the house with a dangerous dog, had arrived and were approaching the house. Bubba leapt a three foot fence and ran toward the officers. Officer Carter shot Bubba twice, seriously injuring him. Bubba retreated into bushes near the house. Carter continued to watch Bubba while the other officers spoke with Viilo. Viilo asked to get Bubba or call for help. The police refused. Sergeant Eyre arrived about ten minutes after Carter shot Bubba. Eyre approached the bushes where Bubba was hiding. According to many witnesses, Bubba came out limping and whimpering. Eyre ordered Carter to shoot Bubba. Carter shot Bubba a third, and a fourth time, killing him. Viilo sued the city and Carter and Eyre under 42 U.S.C. § 1983, alleging a violation of her Fourth Amendment rights. The district court denied Carter and Eyre’s motion for summary judgment on qualified immunity grounds. Carter and Eyre appeal.

In their opinion, Judges Bauer. Cudahy, and Williams dismissed the appeal for lack of jurisdiction. The Court began with the familiar two-part analysis for qualified immunity – whether the alleged facts establish a violation of a constitutional right and whether that right was clearly established. Although the panel briefly discussed the application of the test and found it compelling, it decided it could not reach the merits.

Appeals are generally heard after a final order. Interlocutory appeals are an exception to that rule. The Supreme Court, in the Mitchell v. Forsyth and Johnson v. Jones cases, clarified the scope of the exception in qualified immunity cases. The appeal cannot attack the presence or absence of disputes of fact. It must be limited to the question of law: whether the facts establish a violation of a clearly established constitutional right. The panel pointed out that there can be disputed factual issues in the case. The appellants just cannot contend that the court below erred in ruling that the evidence created an issue for the jury. They must accept alleged or stipulated facts or the facts that the court below found had sufficient support to go to a jury. Here, the court below found that there were sufficient facts to support a reasonable jury’s finding that Bubba was shot the third and fourth time as he was “crying, sitting down, moving slowly, or headed to the backyard.” The officers argue for qualified immunity based on a totally different set of facts. Their appeal must be dismissed.

Tags: Opinion by Cudahy, Appellate Procedure, Civil Rights, Constitutional Law, Qualified Immunity

"Appalling" Conduct of Plaintiff Supports Dismissal for Discovery Abuse

Posted on November 4, 2008 by Michael Rigney

NEGRETE v. NATIONAL RAILROAD PASSENGER CORP. (AMTRAK) (October 27, 2008)

Jorge Negrete was a track repair worker for Amtrak. He injured his back on the job. He sued Amtrak, alleging a permanent disability. During discovery, Negrete: a) withheld the names of doctors who did not support his claim, b) provided false information during his deposition regarding his income, c) was “less than forthcoming” at his deposition regarding who performed maintenance at his apartments, and d) missed twenty-one discovery deadlines (in one case by over a year). The district court dismissed the case for these abuses. Negrete appeals.

In their opinion, Chief Judge Easterbrook and Judges Rovner and Sykes affirmed. The Court observed that dismissal is a drastic penalty for discovery abuses. In the case, however, the “appalling” conduct of Negrete supported the dismissal. He lied about the principal issues in the case – how severe were his injuries and whether he could work. The Court not only affirmed the dismissal, it referred its opinion to the United States Attorney’s Office.

Tags: Opinion by Sykes, Appellate Procedure, Civil Rights, Constitutional Law, Discovery, Discovery Abuse

Taxpayers Do Not Have Standing to Seek Restitution From Recipient of Congressional Appropriation Made in Violation of Establishment Clause

Posted on October 22, 2008 by Michael Rigney

LASKOWSKI v. SPELLINGS (October 14, 2008)

In 1999, Congress appropriated $500,000 to the Department of Education (“DOE”) for a grant to the University of Notre Dame to support a teacher quality program. Notre Dame applied for the grant, indicating that the money would support its Alliance for Catholic Education (“ACE”) program. ACE places and trains teachers in Catholic schools in poor neighborhoods. DOE awarded the grant. Laskowski and Cook, two federal taxpayers, sued the Secretary of the DOE, alleging that the appropriation violated the Establishment Clause. The plaintiffs sought to enjoin the award of the money but did not seek preliminary injunctive relief. Notre Dame intervened. By the time the court heard the case, the DOE had already paid the full amount of the grant to Notre Dame. The court dismissed the case as moot. The plaintiffs appealed, conceding their request for injunctive relief was moot but contending that other remedies were available. The Seventh Circuit panel agreed that the court could not order the DOE to attempt to recover the money from Notre Dame but split on whether the court could order Notre Dame to repay the disbursed funds, if the appropriation violated the Establishment Clause. The majority reversed the dismissal, holding that it could so order. The United States Supreme Court granted certiorari, vacated the judgment, and remanded for reconsideration in light of their decision in Hein v. Freedom From Religion Found.

In their opinion, Judges Posner, Evans, and Sykes affirmed. The only issue facing the Court was whether the plaintiff taxpayers had standing to seek restitution of the grant money from Notre Dame to the U.S. Treasury. The panel began with the general standing rule that payment of taxes is a very generalized interest and usually not enough to establish standing to challenge the constitutionality of government activity. The Court focused on the one exception to the rule. The Supreme Court decided in Flast that a taxpayer could seek to enjoin a specific appropriation of Congress as a violation of the Establishment Clause if the appropriation was made pursuant to Congress’ Article 1, Section 8 taxing and spending power.

Hein presented a slightly different twist to the standing issue. The Hein taxpayers brought an Establishment Clause challenge to an Executive Branch program funded out of its own general appropriations. A divided panel of the Seventh Circuit found standing. The Supreme Court reversed. A three-justice plurality declined to extend the Flast exception beyond the congressional action facts present in the case but also stopped short of overruling Flast, a result preferred by the two-justice concurrence. After the decision in Hein, the panel noted, the Flast exception is now strictly limited to its facts. The only relief for which the taxpayers have standing is injunctive, which is no longer available here. The case is moot and was properly dismissed.

Tags: Opinion by Sykes, Constitutional Law, Establishment Clause, First Amendment, Mootness

Prisoner Entitled to Trial in § 1983 Claim Against Prison Physician For Failure to Treat His Condition; Non-Medical Staff Defendants Are Entitled to Rely on Physician's Professional Judgment

Posted on October 20, 2008 by Michael Rigney

HAYES v. SNYDER (October 9, 2008)

Floyd Hayes, a Vietnam War veteran, was serving a ten-year sentence at the Hill Correctional Center (“Hill”) in Illinois. In 2000, Hayes developed testicular cysts. Tests revealed that the cysts were benign. A Hill physician determined that neither a biopsy nor urological referral were indicated. Hayes’ condition worsened and he began to experience more pain. He requested a urology referral in 2001. Hill personnel declined. In September, he began receiving an antibiotic and over-the-counter pain medication. Beginning in October, he saw Dr. Hamby twice and then started seeing Dr. Shute. Dr. Shute wanted to refer Hayes to a urologist and administer prescription pain medication but Hamby refused to approve. Hayes complained to Hill personnel. He sent letters to the Director and to his staff. He described in significant detail his condition and the extreme swelling and pain he experienced. He complained that he needed to see a specialist but that Hamby would not approve. The Hill staff investigated Hayes’ complaint by seeking information from the medical staff. Hamby himself responded to the inquiry by the staff with a lengthy e-mail. He confirmed that Hayes had two cysts but concluded that they were stable but for “self-reported swelling and occasional tenderness.” Hayes and the non-medical staff continued their correspondence. The staff continued to base its responses to Hayes on communications from Hamby that nothing further needed to be done. Hayes filed a formal grievance complaining of inadequate treatment for his pain. The grievance officer denied his grievance, relying on Hamby’s assurance that Hayes was “treated and tested” appropriately.

Upon his release from Hill, Hayes went directly to a nearby VA hospital. Although he complained of testicular pain, the hospital referred him to the psychiatric ward. They allowed Hayes only a few minutes with a urologist. It seems that the Hill staff had called the hospital to warn them that Hayes might be coming and to advise them that his problems were principally psychiatric. Hayes was released after ten days. He went to his home in Kentucky where he visited the local VA hospital there. He received an evaluation, an ultrasound, and a urology referral. Hayes was diagnosed with Peyronie’s disease, a connective tissue disorder that is often painful. The disease is not easily recognized or well understood, even by urologists. Hayes was referred to and is still being treated by a pain management specialist.

Hayes filed suit under 42 U.S.C. § 1983 against Dr. Hamby for his failure to treat his condition and against the non-medical staff at Hill for their failure to respond to his condition properly. The district court granted summary judgment to the defendants on the merits and on the basis of qualified immunity. Hayes appeals.

In their opinion, Judges Bauer, Ripple, and Wood reversed in part and affirmed in part. The Court started with the rule and the test. The defendants are liable if they displayed “deliberate indifference” to Hayes’ medical needs. Hayes must establish that the condition itself, objectively, is sufficiently serious. Then he must establish that the prison officials knew of and disregarded an excessive health risk. The Court first addressed the objective prong of the test. In finding that a reasonable trier of fact could find in Hayes' favor on the objective test, the Court relied on Hayes’ complaints of extreme pain and swelling and Hamby’s refusal to refer Hayes to a specialist. It disregarded the fact that the disease was quite rare and hard to diagnose, given Hamby’s refusal to even make a referral.

The analysis of the subjective element of the test required separate approaches for Dr. Hamby and the non-medical defendants. The Court relied on several facts in the record to conclude that Hayes could meet the test with respect to Hamby. Hamby a) refused to approve the urology referral, b)may have stopped minimal treatment of ice-packs and non-prescription pain medication in retaliation for Hayes' complaints, c) testified that he would never prescribe pain medication for a prisoner, and d) was dismissive of Hayes' needs in his deposition testimony. The Court found these to be sufficient facts to establish that a reasonable trier of fact could conclude that Hamby’s conduct constituted deliberate indifference.

Addressing the non-medical personnel, the Court stated that non-medical personnel are generally justified in believing that a prisoner is being adequately cared for if he is in the hands of medical personnel. Here, the non-medical personnel investigated Hayes’ complaints. They were entitled to rely on the professional judgment of the medical professionals. The Court held that Hayes could not establish his claims against the non-medical personnel.

Tags: Opinion by Wood, Civil Rights, Constitutional Law, Eighth Amendment, § 1983

Improperly Spoiled Ballots Not Enough for § 1983 Liability When There is No Evidence of Willful Conduct

Posted on October 20, 2008 by Michael Rigney

KOZUSZEK v. BREWER (October 8, 2008)

Nicole Kozuszek and her brother Wesley lived with their parents and were registered to vote in Porter, Indiana. About a month before the 2003 general election, Wesley reported his car stolen in the neighboring town of Chesterton. The police met him at an apartment he rented in Chesterton. The police report of the theft lists the apartment as the residence of Wesley and Nicole. Wesley was scheduled to be a poll-watcher in Chesterton on election day. At a pre-election training session, Chesterton Police Chief Nelson noticed a document on which Wesley had asked that his fee for poll-watching be sent to the Porter address. Nelson recalled the theft incident and the Chesterton address Wesley gave the police. He mentioned the discrepancy to Dale Brewer, an election official. Brewer did nothing with the information until election day. She and Wesley were both at the Chesterton polls. Brewer asked Wesley if he liked living in Chesterton. Wesley responded that he did not live in Chesterton, at least on a regular basis. Brewer did not question Wesley further about the address discrepancy . Instead, she consulted with the other election board members. All of them agreed that Wesley’s vote should be challenged if there was a residence conflict. Brewer learned from election officials in Porter that Nicole and Wesley had both voted by absentee ballot in Porter. Brewer challenged both ballots. The Porter poll inspector spoiled the ballots. The Kozuszeks brought a § 1983 claim, alleging that Nelson and Brewer violated their right to vote. The district court granted the defendants’ motion for summary judgment. The Kozuszeks appeal.

In their opinion, Judges Kanne, Williams, and Tinder affirmed. They observed that the parties agreed that the votes should not have been spoiled. To be successful on their § 1983 cliam, however, the Kozuszeks had to prove that Nelson and Brewer willfully acted to spoil the ballots. Willfulness requires an intent to undermine the electoral process. Addressing Wilson, the Court found that he did nothing wrong. He merely reported a voting record discrepancy to an elected official. With respect to Brewer, the Kozuszeks rely on a) the fact that Brewer waited until election day to challenge the vote, leaving no time to resolve the issue pre-election, and b) the fact that Brewer neglected to tell the Porter poll inspector about the information (Wesley's statement to Brewer and the pay voucher) that would have supported Wesley's Porter registration. The Court determined that neither of these facts amounted to willfullness on Brewer's part. The Court also relied on the fact that there was no evidence that the poll inspector did not exercise independent judgment. The Court held that no reasonable jury, particularly because Brewer had reasonable explanations for her actions, could find that Brewer acted willfully.

Tags: Opinion by Williams, Civil Rights, Constitutional Law, Voting Rights, § 1983

Reasonable Alternate Explanation for Prisoner's Injuries Enough to Uphold Jury Verdict for Defendants

Posted on October 20, 2008 by Michael Rigney

MOORE v. TULEJA (October 6, 2008)

On the evening of April 8, Frederick Grady was in a serious accident in his van. He escaped with minor injuries but his van flipped and was badly damaged. Despite the warnings of emergency personnel, Grady reached into his van to retrieve some carpentry tools. He cut his hand badly. The on-scene emergency personnel treated the wound and recorded its occurrence. Later that evening, Grady trespassed on the lot where his damaged van had been taken, in another vain attempt to retrieve his tools. He was arrested. The arresting officer noticed his bandaged hand but did not mention it in his report. The report prepared at the lockup also neglected to mention a hand injury. He was photographed and taken to jail. The photograph showed no signs of injury to his head. The prisoner in the adjacent cell noticed the bandage on his hand. Jail guards noticed Grady sitting in his cell at about 1:30 the next afternoon. A few minutes later, the prisoner in the adjacent cell heard an unusual noise. Shortly thereafter, jail personnel found Grady on the floor of his cell, unconscious. He was pronounced dead at the hospital. An autopsy determined that he died of a heart attack. It also revealed a number of injuries to his body. His estate filed an action under 42 U.S.C. §1983, claiming that various officers and jail personnel deprived Grady of his constitutional rights by using excessive force and depriving him of medical care. The case was based almost exclusively on inferences drawn from the nature of the injuries to Grady’s body. After seven days of testimony from almost every individual who interacted with Grady after his accident, the jury found for defendants. Plaintiffs appeal the denial of their motion for a new trial.

In their opinion, Judges Cudahy, Posner, and Tinder affirmed. The Court first noted plaintiffs' heavy burden on appeal. They will set aside the verdict only if “no rational jury” could have rendered the verdict. The panel moved on to a review of the evidence. All three medical experts agreed that the cause of death was a heart attack. The question for the jury was what triggered the attack. Plaintiffs’ expert opined that the nature of the hand laceration, two head abrasions, and scrapes on Grady’s wrist indicated that Grady had likely been beaten. The Court analyzed each individual injury in turn. They found reasonable bases in the record for the jury's conclusions that a) the hand injury arose from the post-accident event, b) the head abrasions occurred when he collapsed onto the floor of his cell, and c) the wrist scrapes resulted form the short time he was in handcuffs or even from the original accident. Plaintiffs did not meet their burden.

Tags: Opinion by Cudahy, Civil Rights, Constitutional Law, §1983

Financially Independent State Lottery is Not a State Agency For Sovereign Immunity Purposes

Posted on October 20, 2008 by Michael Rigney

BURRUS V. STATE LOTTERY COMMISSION (October 6, 2008)

Indiana created the State Lottery Commission of Indiana (the “Commission”) in 1989 to operate lottery games in the state. The legislature set it up to operate as a “separate body politic and corporate” from the rest of state government. The legislature authorized up to $18 million in start up costs. The Commission only used $6 million and repaid that within the year. The lottery has been quite successful. It has generated over $3 billion in profits since its inception. The governor appoints the director and five commissioners who operate the lottery. The Commission has the authority to sue and be sued. It operates independently of the state, although it is heavily regulated by the state. The Commission deposits all of its revenue into a fund separate from the state’s general revenue fund. The funds are first used to pay for the prizes and operating costs. Each quarter, the remaining funds are disbursed to the credit of the state teachers’ retirement fund ($7.5 million) and the pension relief fund ($7.5 million). Any quarterly surplus is transferred to a fund which is used to support local and state capital projects.

Between January and May of 2005, seven employees of the Commission were fired. They all sued the Commission under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964. Each alleged that he or she was fired as a result of his or her race. The Commission moved to dismiss the § 1981 claims on the grounds of sovereign immunity. The district court denied the motion. The Commission appeals.

In their opinion, Judges Bauer, Ripple, and Manion affirmed. The appeal raised only one issue – whether the Eleventh Amendment shields the Commission from the §1981 claims. The Court began with the basic proposition that unconsenting states, and their agencies, are immune from federal lawsuits under the Eleventh Amendment. Here, the parties simply disagreed over whether the Commission is a state agency. The Court listed the two factors that generally determine that issue. The first, and most important, is the degree of financial autonomy from the state. The other factor is the general legal status of the entity. The Court observed that the Commission’s complete lack of financial reliance on the state and the total lack of responsibility by the state for any of the Commission’s obligations strongly weighed against finding the Commission to be an agency of the state. While it is true that a judgment against the Commission would deprive the state of revenues it otherwise would have received but for the judgment, the panel noted that the Supreme Court had rejected that “state-benefit” theory of financial dependence.

The second prong of the test, general legal status, also supports the Court’s conclusion that the Commission is not an agency of the state. The Court pointed to a number of factors to support its conclusion: a) it sets its own budget, b) it controls its day-to-day operations, c) it sues in its own name, and d) it enters into contracts in its own name. The fact that the governor appoints the commissioners was given little weight by the Court given the Commission’s financial independence. Finally, the Court noted that the fact that the lottery is the subject of much state regulation does not change the result that the Commission is not an agency of the state and not immune from suit.

Tags: Opinion by Manion, Civil Rights, Constitutional Law, Eleventh Amendment, Labor & Employment, Sovereign Immunity, § 1981

Federal Tort Claims Act Bars a Direct Judgment Against a Federal Employee, Even if Brought in Same Action or Entered First

Posted on October 20, 2008 by Michael Rigney

MANNING v. UNITED STATES (October 6, 2008)

Steve Manning is a former police officer and FBI informant. He was convicted of kidnapping in Missouri and murder in Illinois. Both convictions were overturned. Manning brought a §1983 Bivens action against two FBI agents, alleging that they violated his constitutional rights in their handling of both investigations and prosecutions. Specifically, he alleged that they fabricated evidence and withheld that fact from the prosecutors. He also sued the United States, in the same action, under the Federal Tort Claims Act (“FTCA”) for malicious prosecution and intentional infliction of emotional distress. The claims were tried together. Since FTCA claims cannot be tried to a jury, the jury heard only the Bivens claim. Simultaneously, the court heard the FTCA claim. The jury awarded Manning $6.5 million on the Bivens claim. A year and a half later, the court found against Manning on the FTCA claim. The Bivens defendants moved to vacate the judgment entered on the jury award, invoking the FTCA “judgment bar.” The district court granted the motion. Manning appeals.

In their opinion, Judges Bauer, Flaum, and Manion affirmed. The Court cited the established rule that the victim of a tort committed by a federal law enforcement officer can pursue a constitutional tort action (i.e., a Bivens action) or a common law tort claim against the United States under the FTCA. However, the FTCA provides that a judgment in an FTCA claim bars a direct action against the employee(s) whose act gave rise to the claim. Manning argued, alternatively, that the FTCA does not bar a judgment on a claim pursued in the same action or that the FTCA does not operate retroactively to bar a prior-entered direct judgment. On the “same action” argument, the Court relied on the unambiguous, plain language of the statute and the common meaning of the word “action” to reject Manning’s interpretation. Similarly, the Court found no support in the plain language of the statute for Manning’s retroactivity argument. The panel appreciated the “significant reversal of fortune” for Manning as a result of its holding. It observed that it was, of course, bound by the plain language of the statute. It also pointed to Manning’s strategic choices that led to the unfortunate (for Manning) result.

Tags: Opinion by Bauer, Bivens, Civil Rights, Constitutional Law, FTCA, Judgment Bar, §1983

Denial of Rule 15(a) "Matter of Course" Amendment Without Explanation is an Abuse of Discretion

Posted on September 30, 2008 by Michael Rigney

FOSTER V. DELUCA (September 29, 2008)

Stacie Foster, a Democrat, was employed by the City of Chicago Heights, Illinois. Shortly after the citizens of Chicago Heights elected a Republican mayor, Anthony DeLuca, her employment was terminated. Foster brought suit against the City and DeLuca under 42 U.S.C. §1983, alleging that her First Amendment freedom of association rights had been violated. The district court granted a motion to dismiss and, on the same day, entered final judgment. Foster moved to alter the judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure (FRCP) and to amend her complaint. The court denied the motions. Foster appeals.

In their opinion, Judges Rovner, Evans, and Williams reversed. The Court noted that relief under Rule 60(b) is extraordinary and that its review of the lower court’s denial of leave to amend is for abuse of discretion. Notwithstanding these high bars, the Court determined that the circumstances warranted a reversal. FRCP 15(a) provides that amendments to pleadings should be “freely given” and that one opportunity to amend is available “as a matter of course” before a responsive pleading is served. Since the motion to dismiss is not considered a responsive pleading under Rule 15(a), the court have either given Foster an opportunity to amend or provided an explanation for its denial. The court abused its discretion in not doing either. Also, the court left Foster with no option but to move to alter the judgment since it entered final judgment the same day.

Tags: Opinion by Williams, 42 U.S.C. §1983, Civil Procedure, Constitutional Law, First Amendment

In Their Opinion
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New York
101 Park Avenue
New York, NY 10178-0002
Phone (212) 808-7800
Fax (212) 808-7897
Alt Fax (212) 808-7898

Washington, DC
Washington Harbour, Suite 400
3050 K Street, NW
Washington, DC 20007-5108
Phone (202) 342-8400
Fax (202) 342-8451

Los Angeles
10100 Santa Monica Blvd.
23rd Floor
Los Angeles, CA 90067
Phone (310) 712-6100
Fax (310) 712-6199

Stamford
400 Atlantic Street
Stamford, CT 06901
Phone (203) 324-1400
Fax (203) 327-2669

Parsippany
200 Kimball Drive
Parsippany, NJ 07054
Phone (973) 503-5900
Fax (973) 503-5950

Brussels
106 Avenue Louise
Brussels, 1050
Belgium
Phone (32)(2) 646-1110
Fax (32)(2) 640-0589

Seventh Circuit Court of Appeals commentary from Chicago lawyer & attorney Michael E. Rigney of Kelley Drye & Warren Law Firm, offering insights and analysis related to 7th Circuit Court opinions and Illinois federal courts.