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April 14, 2014

When Is Police Violence Motivated by Personal Goals Action "Under Color of Law"?


Violence by off-duty law-enforcement officers for personal motives is not uncommon. This month, a Dallas police officer was fired for a domestic-violence incident, a Seattle firefighter was charged for hitting a homeless man sleeping in a park, a Maryland police officer pleaded guilty to choking his wife, a Detroit police officer was charged with an off-duty assault of a female friend, and a federal judge in Minneapolis awarded attorney fees of $145,000 for claims arising from an off-duty police officer’s conduct at a bar.


Despite the frequency of disputes arising from off-duty police conduct, the Supreme Court has not yet determined when violent acts by police for personal reasons are private action or are instead state action, action “under color of law” under 42 U.S.C. § 1983.


The “color of law” inquiry is straightforward when a public employee is sued under section 1983 for acts taken while exercising the employee’s government powers. Generally, employment by a state or local government is sufficient to hold the defendant a state actor. But the “color of law” inquiry is more complex when a state or local government employee is off duty and acts for private reasons. The federal circuits have held that off-duty officers can still act under color of law and have identified factors a court should weigh—such as whether the officer wore a uniform, flashed a badge, used a police car, or attempted an arrest.


The absence of a national rule for determining when a police officer’s violent acts are state action or are instead private action can lead to inconsistent results. For example, the First Circuit, over vigorous dissent, held that a police officer’s privately motivated violence was not action under color of law, even though the shooter was in uniform, on duty, in a police station, and used a police-issued weapon to shoot a fellow officer. See Martinez v. Colon, 54 F.3d 980 (1st Cir.), cert. denied, 516 U.S. 987 (1995). Similarly, the Fifth Circuit held that a police chief’s privately motivated assault was not state action, even though the chief was on duty and in the station, because the fight with the plaintiff, a relative, was a personal dispute and the chief did not arrest or threaten to arrest plaintiff. Delacambre v. Delacambre, 635 F.2d 407 (5th Cir. 1981).


By contrast, the Ninth Circuit held that an off-duty officer was “acting under color of state law” when, for personal reasons, he punched another participant in a vintage-car parade. Even though the off-duty officer was not in uniform and was in a parade, by holding up his hands and telling the gathering crowd “he was a cop” and to “disperse,” the off-duty officer had invoked his law-enforcement status to keep bystanders from interfering with his assault on plaintiff. Anderson v. Warner, 451 F.3d 1063 (9th Cir. 2006).


State-law remedies—such as employee discipline or criminal prosecution—involve separate issues. But for section 1983 purposes, it is significant whether the officer was a private citizen or a state actor at the time of the conduct. If the officer was a private actor, it is less likely that a government will pay damages for harm inflicted by the officer, because the conduct had nothing to with the police officer’s job.


Because police sometimes use violence for personal goals and the federal circuits have crafted rules that can lead to inconsistent results, the next available opportunity may be time for the Supreme Court to announce a national rule to determine when personally motivated violence by a police officer is action “under color of law.”


Keywords: civil rights litigation, section 1983, 42 U.S.C. 1983, state action, action under color of law, color of law, off-duty, personal violence, domestic violence


Sarah E. Ricks, clinical professor, Rutgers School of Law-Camden


 

March 13, 2014

9th Cir. Uses Heightened Scrutiny to Examine Sexual Orientation


The Ninth Circuit recently used heightened scrutiny to review an equal-protection claim based on sexual orientation. In SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014), Abbott was accused of artificially raising the price of HIV drugs. During voir dire, Abbott’s attorney used a peremptory challenge against the only self-identified gay member of the venire. SmithKline objected, and the trial court overruled the objection. On appeal, the Ninth Circuit found that “the strike was based on a discriminatory motive,” and “Batson prohibits strikes based on sexual orientation.” See Batson v. Kentucky, 476 U.S. 79 (1986) (noting the privilege of peremptory strikes in selecting a jury is subject to the guarantees of the Equal Protection Clause).


Relying on U.S. v. Windsor, 133 S. Ct. 2675 (2013), SmithKline held that classifications based on sexual orientation are subject to heightened scrutiny. SmithKline, at 484. Although Windsor cited a rational-basis case and also to cases applying heightened scrutiny to defeat section three of the Defense of Marriage Act (DOMA) on an equal-protection basis, the Ninth Circuit said “Windsor review is not rational basis review.” Judge Reinhardt began his opinion in SmithKline by noting that Justice Kennedy did not expressly announce a level of scrutiny in Windsor. In so doing, Judge Reinhardt looked at what the Supreme Court did, not what it said.


The Ninth Circuit concluded that the “lowest level of review does not look to the actual purposes of the law. Instead, it considers whether there is some conceivable rational purpose that Congress could have had in mind when it enacted the law.” For Windsor, a hypothetical reason for DOMA’s enactment was not sufficient. Windsor went further; it looked to DOMA’s “design, purpose, and effect. “ Windsor,at 2689. Moreover, Windsor’s “careful consideration of DOMA’s actual purpose and its failure to consider other unsupported bases is antithetical to the very concept of rational basis review.” SmithKline, at 482.


Additionally, “[r]ational basis is ordinarily unconcerned with the inequality that results from the challenged state action.” Normally, “words like harm or injury rarely appear in the Court’s decisions applying rational basis review.” (emphasis added). Id. Windsor, however, used these words repeatedly. The majority opinion in Windsor considered DOMA’s “effect” on eight separate occasions. Indeed, Windsor was concerned with the “resulting injury and indignity” and the “disadvantage” inflicted on gays and lesbians. Windsor, at 2693.


The Ninth Circuit rightfully examined sexual orientation under the Equal Protection Clause with heightened scrutiny.


Stanford L. Moore, 3L, Case Western Reserve University


 

February 3, 2014

High Court to Weigh In on Gun Issues


Second Amendment and firearms law continues to bustle with innovation and action. Of course, not all cases regarding Second Amendment rights involve pure Second Amendment questions.


The U.S. Supreme Court recently heard arguments in United States v. Castleman, a firearms-rights case challenging the government's interpretation of the statute that bars those convicted of a "misdemeanor crime of domestic violence" from possessing guns. The state misdemeanor statute under which Castleman was convicted, as with many similar domestic-violence statutes in states around the country, does not require physical force to be proven. Castleman argued that without an element of physical force, his prior conviction did not involve "domestic violence." The case will force the Court to interpret how inclusive Congress intended to be when stripping people of their Second Amendment rights for a misdemeanor conviction.


On January 22, 2014, the Court heard arguments in another important firearms-related case, Abramski v. United States. In 2009, Bruce Abramski used his law-enforcement discount to purchase a pistol that he then shortly resold to his uncle. Though neither he nor his uncle were prohibited from possessing firearms, Abramski was subsequently charged for withholding material facts from the dealer when purchasing a firearm because he checked a box stating that he was buying the gun for himself as part of the background-check process. The challenge focuses on whether or not checking the box is material, and whether or not the background-check process and this form can make an otherwise lawful firearms transaction between two lawful firearms owners a criminal act.


In terms of direct Second Amendment action, a few petitions of certiorari are currently pending before the Court. First, National Rifle Association of America v. McCraw, is a challenge to a Texas law prohibiting the carrying of firearms by law-abiding adults under the age of 21. A second case, Drake v. Jerejian, just had its petition filed on January 9, 2014. Drake challenges New Jersey's restrictive handgun-licensing scheme, which the plaintiffs allege allows government officials unchecked discretion in deciding who has shown adequate "justifiable need" and may, therefore, exercise their Second Amendment right to carry a firearm for self-defense. This legal effort is led by Alan Gura, who successfully litigated both the Heller v. District of Columbia and McDonald v. Chicago Second Amendment cases.


We will continue to follow these, and other, firearms and Second Amendment cases in the future. Should the Court grant certiorari in either the Drake or NRA case, we could be up for a very exciting year in the world of Second Amendment litigation.


Keywords: civil rights litigation, Second Amendment, Gun Rights, SCOTUS


Miko Tempski, Tempski Law Firm, P.S.


 

February 3, 2014

Clarification on the Use of Criminal History in Hiring Decisions


What are the requirements for employers that use criminal-history information in making employment decisions? Are employers required to take on the onerous task of individually assessing applicants to ensure that they do not discriminate against a particular group of people? Are targeted screens sufficient to avoid potential liability for discrimination?


The Equal Employment Opportunity Commission (EEOC) recently released informal discussion letters outlining what it deems to be the legal obligations of employers that use criminal-history information to make employment decisions. As it has consistently made clear, the EEOC believes that employers are at risk for Title VII liability when using criminal-history information to exclude individuals from employment, because such exclusion tends to disproportionately affect minorities. To avoid such liability and to show that its policy governing the use of criminal-history information is necessary, the EEOC has stated that the employer must perform a "targeted" screen by considering the following factors:


• the nature and gravity of the offense or offenses for which the applicant was convicted;

• the amount of time that has passed since the conviction and/or completion of the sentence; and

• the nature of the job held or sought.


The EEOC has further stated that when an employer excludes an applicant from hire or makes an employment decision based on an individual's criminal record, the employer should give the individual an opportunity to provide more facts before the employer makes a final decision, or it should otherwise perform an "individualized assessment." An individualized assessment "generally means that an employer informs the individual that he may be excluded because of past criminal conduct; provides an opportunity to the individual to demonstrate that the exclusion does not properly apply to him; and considers whether the individual's additional information shows that the policy as applied is not job-related and consistent with business necessity." There is some confusion, however, regarding whether employers must always provide an individualized assessment of every excluded applicant, and if so, under what circumstances. EEOC chair Jacqueline Berrien has provided some clarification on the EEOC's guidance and the use of individualized assessments.


According to Berrien, the EEOC does not urge or require individualized assessments of all applicants and employees, but rather encourages the following two-step process: 1) that employers use a "targeted" screen of records, which considers the nature of the crime, the time elapsed, and the nature of the job; and 2) that employers perform an individualized assessment for those individuals who are screened out, which according to Berrien, provides a way for employers to ensure that they are not mistakenly screening out qualified applicants or employees based on incorrect, incomplete, or irrelevant information, and to allow individuals to correct errors in their records.


While individualized assessments are strongly encouraged, the EEOC makes clear that employers may decide to never conduct an individualized assessment if they are able to demonstrate that their targeted screen is job-related and consistent with business necessity. The individualized assessment is simply "a safeguard that can help an employer to avoid liability when it cannot demonstrate that using only its targeted screen would always be job related and consistent with business necessity." Further, whether an employer's policy on using criminal-history information is job-related and based on business necessity, as well as whether excluded individuals should be given an individualized assessment, only becomes relevant when the policy results in a disparate discriminatory impact upon a protected group of people.


Keywords: civil rights litigation, employment, hiring, EEOC, discrimination, individual assessment


David Gevertz, Baker Donelson, Atlanta, GA


 

December 26, 2013

Windsor Leaves Questions about Same-Sex Couples' State Taxes


After United States v. Windsor, 133 S. Ct. 2675 (2013), which invalidated section three of the Defense of Marriage Act (DOMA), the IRS changed its rules to allow legally married same-sex couples to file as married on their federal income-tax returns. The IRS will recognize the marriage even if a couple is domiciled in a state that does not recognize same-sex marriage. Some states, however, are asking legally married same-sex couples to file as singles on state tax returns.


Currently, 15 states authorize same-sex marriage. The majority of states, however, have provisions similar to the now invalid section 3 of DOMA, which defined marriage as between a man and a woman. Georgia, for example, has a constitutional amendment that prohibits both same-sex marriage from occurring within its borders and the recognition of legal same-sex marriages from other states. Ga. Const. art. I, § 4, ¶ I; O.C.G.A. § 19-3-3.1


The Supreme Court recognized in Windsor that, under state provisions such as these, “same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways,” such as "forc[ing] them to follow a complicated procedure to file their state and federal taxes.” Windsor, 133 S. Ct. at 2694. The IRS eased the burden for same-sex couples filing federal income taxes, but let states decide how married couples should file state tax returns. Oregon, which has a constitutional ban against same-sex marriage, has decided to recognize valid out-of-state same-sex marriages. A same-sex couple living in Oregon, but married in another state, may jointly file an Oregon tax return.


At least six states, however, require same-sex couples to file as singles: Arizona, Utah, Oklahoma, Kansas, Nebraska, and Georgia. In those states, a person in a same-sex marriage who filed a federal tax return as married must recompute Federal Adjusted Gross Income (AGI) and itemized deductions (if applicable) as if the person had filed a single federal return. They must also calculate taxes based on rates for single filing status, or if qualified, head-of-household tax rates. To “recompute” the AGI, couples must complete at least three separate federal tax forms (one married and two single) because the state tax forms use the AGI as a starting point. Georgia has actually released guidance on how same-sex couples should file.


Not only will there be more work to prepare for tax season, but also it will cost more for the couple to prepare and the state to process. For couples with income disparities, this burden could amount to thousands of dollars. Hopefully, other states will follow Oregon’s lead.


Keywords: civil rights litigation, tax, Windsor, DOMA


Stanford L. Moore, 3L, Case Western Reserve University


 

December 16, 2013

New York Experiments with ADR for Section 1983 Cases


The Southern District of New York asked the New York City Law Department and a group of civil-rights plaintiffs’ attorneys to develop an experimental plan for improving judicial efficiency in handling 42 U.S.C. § 1983 claims. Since 2011, the Section 1983 Plan has offered expedited discovery and settlement procedures for actions against New York City police. The plan is limited to claims seeking (1) only monetary relief for (2) allegations of false arrest, malicious prosecution, or excessive force by (3) New York police and the city itself.


The plan provides for expedited discovery and lists documents both sides must exchange. Mandatory mediation or settlement conferences follow discovery.


  • • Under the plan, at the same time they serve the complaint, plaintiffs must also serve releases for arrest and medical records.
  • • The defendant has a longer time to respond to the complaint—80 days instead of the 21 days allotted under the Federal Rules.
  • • Within 28 days of the defendant’s answer, both parties must exchange specified “Limited Discovery.” No extensions are granted.
  • • Parties must engage in settlement discussions while all other discovery is stayed.
  • • Within three months of the answer, if the parties have not dismissed the case, it goes to a court-approved mediator or a settlement conference before a magistrate judge.

Proponents say the plan improves judicial efficiency by streamlining discovery and mandating alternative dispute resolution. The plan’s expedited and limited discovery rules shorten the litigation and ensure that litigants quickly obtain information useful for evaluating the case. This makes meaningful settlement discussions possible at an earlier stage in the litigation. Combined with its mandatory mediation or settlement conferences, the plan’s discovery rules encourage early settlement, which helps reduce the district-court docket.


Critics of the plan believe it is flawed because it is not well-suited for complex cases. Complex cases with substantial injuries, critics believe, not only require more extensive discovery than the plan permits, but are also unlikely to be resolved in mediation. Thus, limiting discovery and requiring all plan cases to go through early settlement discussions may actually create more delay as opposed to reducing it. Critics also claim that the plan impairs due process. The plan has an automatic waiver of plaintiffs’ rights to recover for physical or mental injuries where the plaintiffs have failed to serve a medical release with the complaint. In some cases, this may violate plaintiffs’ due-process rights.


The Southern District of New York Court has published the plan in full at its website.


Keywords: civil rights litigation, section 1983, mediation, ADR, discovery


Leah DiMatteo, Rutgers University School of Law


 

December 16, 2013

Section 1983 Claims: Municipalities Ignored Need to Train Employees


Federal courts have been interpreting a 2011 Supreme Court decision as having placed high hurdles in the way of claims against a municipality for failing to train its employees to avoid “obvious” violations of constitutional rights. In Connick v. Thompson, 131 S. Ct. 1350 (2011), the Supreme Court addressed the question of whether a municipality may be liable through a single incident of unconstitutional activity if the injury was obviously likely to occur in the absence of training employees. This theory is rooted in City of Canton, Ohio v. Harris, 489 U.S. 378, 390 n. 10 (1989). In Connick,a district attorney's office failed to train its attorneys to turn over exculpatory evidence, resulting in the plaintiff’s conviction. 131 S.Ct. at 1356, 1366. The Supreme Court held that a plaintiff must show that the municipality acted with deliberate indifference—that is, the municipality was on notice of its failure to train and disregarded the likelihood of potential constitutional violations. The plaintiff also must show that the alleged failure to train caused the injury suffered.


While it may seem “obvious” that failing to train district attorneys to turn over exculpatory evidence would lead to constitutional violations, the Supreme Court found that there was no obvious need for training. The plaintiff could not establish a single-incident theory of liability partly because the district attorneys had prior professional training, and therefore the district attorney’s office was not on noticeThe Court also reaffirmed that respondeat superior does not apply to section 1983 claims.


Since Connick, only one circuit court has found that a plaintiff could establish an obvious need to train government employees. In Conn v. City of Reno, 591 F.3d 1081 (9th Cir.) cert. granted, 131 S. Ct 1821 (2011), aff’d on remand, 658 F.3d 897 (9th Cir. 2011), the Ninth Circuit found that the plaintiffs provided sufficient evidence to survive summary judgment in a single-incident case. In Conn, a woman who committed suicide while in jail awaiting trial had previously threatened and attempted to commit suicide while in the custody of police—yet the police did not report her actions. The 9th Circuit reasoned that failing to train police officers how to identify and when to report suicide risks produces a highly predictable consequence that police officers will fail to respond to serious risks of suicide and that constitutional violations will occur.


Connick reasoned that the attorneys’ law-school “professional” training supported its holding that the district attorney’s office was not on notice of a failure to train its employees to avoid constitutional violations. Connick’s reasoning was extended to nurses by the District of New Jersey. In Rosario v. Doe, 2013 WL 3283903 at *9 (D.N.J. June 25, 2013), the plaintiff-prisoner alleged that the prison nursing staff was inadequately trained when he suffered toe amputation as a result of a diabetic foot ulcer. The district court noted that “like the attorneys in Connick, the nurses employed by [the prison] completed nursing degrees and were licensed.”


Keywords: civil rights litigation, section 1983, municipality, failure to train


Joshua Bauers and Keith Nagy, Rutgers University School of Law


 

September 11, 2013

The Vestige of DOMA


Ohio is among the majority of states that do not recognize same-sex marriage. See Ohio Rev. Code § 3101.01(C)(2) (“Any marriage entered into by persons of the same-sex in any other jurisdiction shall be considered and treated in all respects as having no legal force or effect in this state and shall not be recognized by this state.”); see also Ohio Cons. Art. XV, § 11 (“Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.”).


It may be intuitive that a full-faith-and-credit argument would enable the recognition of lawful, same-sex marriages from other states. However, the Defense of Marriage Act (DOMA) section two, which is still intact, allows states to refuse to recognize same-sexmarriages performed under the laws of other states. See 28 U.S.C. § 1738C.Although “full faith and credit shall be given in each State, to the public . . . records . . . of every other State,” Congress “may by general laws prescribe the manner in which such . . . records . . . shall be proved, and the effect thereof.”U. S. Cons. arts, 3 & 4. Accordingly, a full-faith-and-credit argument is dead in the water.


However, “the state-law shoe" has now dropped in Ohio. Obergefell v. Kasich, No. 1:13-CV-501, 2013 WL 3814262, 2013 U.S. Dist. LEXIS 102077 (S.D. Ohio July 22, 2013) (quoting United States v. Windsor, 133 S. Ct. 2675, 2705 (2013)). Federal District Judge Timothy S. Black recently ordered Ohio to recognize a lawfully married same-sex-couple status on a death certificate. Residents of Ohio, James Obergefell and John Arthur have been in a committed relationship for more than 20 years. John, a hospice patient, suffers from a fatal disease, and is likely to die soon. Wanting “the world to officially remember and record their union as a married couple,” the couple flew to Maryland (a state that recognizes same-sex marriage) and married on a runway at the airport.


Recently, the couple persuaded the court, on equal-protection grounds, to grant an injunction — ordering Ohio to list the couple as married on John’s death certificate and to list James as John’s surviving spouse. Although marriage is typically in the province of the states, the federal Constitution places limits on restrictions that states may impose. Loving v. Virginia, 388 U.S. 1, 12 (1967) (statute limiting marriage to same-race couples violated equal protection and due process); Zablocki v. Redhail, 434 U.S. 374, 383 (1978) (statute depriving marriage from persons owing child support violated equal protection).


Although section two of DOMA stands, courts must determine whether state laws mandating that only a man and a woman have the legal right to marry violate equal protection. The likely conclusion is that states lack a rational basis to refuse recognition of lawful same-sex marriages from other states. Section two of DOMA may soon become moot.


Keywords: civil rights litigation, DOMA, equal protection, full faith and credit


Stanford L. Moore, 3L, Case Western Reserve University


 

July 16, 2013

A Post-Windsor World


When the U.S. Supreme Court issued its decisions in Windsor v. United States, 133 S.Ct. 2675 (2013) and Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) the lives of millions of lesbian, gay, and transgendered (LGBT) people in this country changed for the better. Unfortunately, many of them live in states where these decisions will have, for now, limited effect.


Let’s look at the Windsor decision. The Court decided that section three of the Defense of Marriage Act (DOMA) is unconstitutional. DOMA violates “basic due process and equal protection principles applicable to the Federal Government. The Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.” Windsor (quoting Department of Agriculture v. Moreno, 413 U. S. 528, 534–35 (1973)).


We now have 14 marriage-equality jurisdictions in the United States. Seven states recognize civil unions and domestic partnerships. The Windsor decision does not include those couples, and they will not, for now, be able to enjoy full federal benefits.


There are 29 states that ban recognition of lesbian and gay relationships either through statute, constitutional amendment, or both. New Mexico is the only state in that group that does not explicitly prohibit recognition. That state’s attorney general announced that the state must recognize same-sex marriages entered in other states.


The Perry decision has less of an immediate effect. Essentially, the Court sent the case back because the Proposition 8 proponents who brought the appeal did not have standing to do so. The decision makes California marriage-equality state number 13.


On June 28, 2013, the Office of Personnel Management (OPM) issued a memorandum stating it would extend benefits to the spouses of legally married lesbian and gay federal employees. A key part of the OPM’s decision is to accept the state of celebration to determine the marriage’s legality. Married lesbian and gay federal employees that live in non-recognition states are covered by this decision.


The secretary of defense announced on June 26, 2013, that officials will move forward to make all benefits available to all military spouses, including medical, dental, interment at Arlington National Cemetery, and with-dependent basic allowance for housing. The Department of Defense will look to the state of celebration to determine if the marriage is valid. This is a good decision because most military bases are located in states that prohibit recognition.


Windsor’s effect on immigration was immediate. A deportation hearing being held in New York was stopped within minutes of the Court issuing its decision. The first green card was approved on July 10. The Department of Homeland Security announced it would “review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”


The Social Security Administration is another matter. The Social Security Administration Act uses the law of the state in which the couple is living at the time application is made to define marriage. This creates a different problem for married lesbian and gay couples. Congress must change the law for couples living in non-recognition states to receive benefits. A court challenge will likely be mounted if Congress fails to act.


Another federal agency, the Internal Revenue Service (IRS), has yet to issue any guidance. Couples living in the 14 marriage-equality jurisdictions will be treated as married. The IRS does not have a definition of spouse or marriage. The agency may decide to use the state of celebration to decide whether to recognize same-sex marriages. In that case, all married lesbian and gay couples will be recognized regardless of where they live. If they do not, litigation will ensue when a married same-sex couple from Vermont moves to Ohio and finds they have lost federal rights.


Lambda Legal and the American Civil Liberties Union (ACLU) have filed or will file lawsuits in states that prohibit recognition of same-sex marriages. The plaintiffs in a pending suit in Illinois have asked the court for a quick decision given the outcome in Windsor. The Pennsylvania attorney general has decided not to defend the state’s law in a suit filed July 9, 2013, by the ACLU. A third party may step in to defend the law but that effort may not be allowed under the Hollingsworth v. Perry decision. That third party will need to have a “dog in the fight” to clear a standing challenge.


This is an exciting time in a continuously evolving area of law. The Windsor and Perry decisions have given the LGBT legal community significant resources to use in challenging discriminatory laws in the states. The coming months will be very interesting.


Keywords: litigation, civil rights, LGBT, DOMA, marriage, employment benefits


Joan Burda, attorney at law and adjunct professor, Case Western Reserve University School of Law


 

July 2, 2013

Scholarship Preview: The New Conflicts Law


The growth of international markets has led to more and more transactions that fall within the jurisdiction of multiple legal systems. Today, an ordinary consumer product is likely to be manufactured in a low-wage, low-tax jurisdiction, and will be sold to one or more distributors and retailers before reaching the consumer. If something goes wrong along the way, many legal systems can plausibly claim authority to regulate the transaction.


Despite the explosion of multi-jurisdictional commerce, governments do not agree on how regulatory authority should be divided. In the United States, Congress’s reliance on private actors to enforce the law in statutes such as the Securities Exchange Act and Title VII makes informal regulatory coordination difficult. While a public official might negotiate an agreement with his or her foreign counterparts about how to divide up enforcement authority (or refrain from enforcing the law entirely for reasons of comity), such coordination is not possible when enforcement authority is allocated to be dispersed by private actors. As a result, ordinary civil litigation in U.S. courts is increasingly likely to lead to political backlash from foreign governments who object to “extraterritorial” regulation by the United States. Prototypically, a foreign government complains that litigation in U.S. courts undermines the effectiveness of its regulatory regime or its ability to conclusively determine the rights and liabilities of the parties to a dispute.


In The New Conflicts Law, David L. Noll, an assistant professor of law at Rutgers University, identifies a new and potentially problematic response to these problems in U.S. law. Beginning in the 1980s, the Supreme Court has recognized a set of ex ante rules that limit private regulatory enforcement in U.S. courts, and in so doing, head off conflicts between U.S. litigation and foreign regulatory systems before they can occur. The trend began in the 1980s and 1990s with decisions requiring near total deference to forum-selection agreements and arbitration clauses, even when they are contained in standard-form contracts of adhesion. Though the reasons the Court offered for enforcing such agreements are questionable, the doctrine prevents intergovernmental conflicts caused by the combination of permissive jurisdictional rules and multi-jurisdictional economic activity. The conflict-minimizing trend has continued in recent decisions such as Morrison v. National Australia Bank, 130 S. Ct. 2869 (2010), which limited section 10(b) of the Securities Exchange Act to frauds that culminate in a transaction in the United States, and Kiobel v. Royal Dutch Petroleum, 133 S. Ct. 1659 (2013), which reversed the decades-old consensus that the Alien Tort Statute permits courts to hear claims for torts that occurred outside the United States. While difficult to justify as an exercise in traditional statutory interpretation, Morrison and Kiobel provide multinational businesses with a way to manage their exposure to U.S. regulation—and thereby prevent regulatory conflicts.


Notably, the new conflicts law takes a very different approach to regulatory conflict than twentieth-century doctrine and scholarship. Common-law doctrines such as forum non conveniens and the choice-of-law rules in the Restatement (Second) of Conflict of Laws determined which legal system governed a transaction through an all-things-considered analysis of the transaction and the affected governments’ regulatory policies. The new conflicts law, by contrast, makes the applicability of U.S. regulation turn on a limited number of specific, objectively identifiable facts.


Are these developments a good thing? Though the new law unquestionably minimizes regulatory conflict, Noll questions whether it will actually improve welfare. Economically inclined scholars have argued that laws that permit private actors to choose the regulatory regime governing their affairs encourage governments to enact efficient laws, and thus promote a beneficial form of regulatory competition. But the new conflicts law is insensitive to the conditions for successful regulatory competition, Noll claims, and is more likely to result in a transfer of wealth to powerful economic actors than it is to improve welfare.


Noll also argues that the new law reflects a questionable approach to the enforcement of U.S. regulatory policy. In his view, there is not necessarily a single correct answer to how U.S. law should balance the need to assert regulatory power with the need to accommodate other governments. But the new law often sets up restrictions on U.S. regulatory authority that are effectively permanent, and thus prevents democratically accountable actors from taking responsibility for that tradeoff.


Ultimately, the new conflicts law is likely to impact any litigator whose work involves the enforcement of regulatory statutes in federal or state court. The article will appear this fall in the the Stanford Journal of Complex Litigation and can be downloaded free of charge from the Social Science Research Network.


Keywords: civil rights litigation, conflicts of law, foreign litigation, regulatory law


David Noll, assistant professor of law, Rutgers University School of Law


 

June 18, 2013

Second Circuit's Latest Statement on Pattern or Practice


Under Teamsters v. U.S., do disparate-treatment defendants need to fight (statistical) fire with (statistical) fire? In May 2013, a divided Second Circuit answered no.


In U.S. v. City of New York, 2013 WL 1995782 (May 14, 2013), the United States brought suit against the City of New York's fire department on the grounds that its reliance on written examinations in selecting entry-level firefighters amounted to a pattern or practice of pervasive discrimination against black candidates, in violation of Title VII. An organization of black firefighters (the Vulcan Society, Inc.) intervened and asserted a discriminatory-treatment claim as well. Following International Brotherhood of Teamsters v. United States, 431 U.S. 324, 336 (1977), the district court held that the city's failure to defeat the statistical evidence showing discriminatory treatment commanded summary judgment.


In a complex and divided opinion, the majority of the appellate panel reversed the district court's grant of summary judgment, in part, on the grounds that requiring the city "to meet or undermine the Intervenor's 'statistical evidence'" was "too narrow a view of how a defendant may rebut a prima facie case." Instead, the majority held that "the City was entitled to produce whatever evidence it had to rebut the prima facie case of discriminatory treatment."


Judge Pooler, writing in dissent, disagreed. "Once the plaintiff has used statistical evidence to make out its prima facie case," Judge Pooler reasoned, "the employer must then 'defeat the prima facie showing' by addressing those statistics." Judge Pooler also noted that failing to require such a showing lessens the burden on pattern-or-practice defendants and that a number of other circuits recognize the specific burden to defeat a plaintiff's statistical proof under Teamsters. Unless the Supreme Court weighs in, however, defendants in the Second Circuit may choose to fight fire as they like: They can successfully rebut a prima facie inference based on statistics with "any evidence that is relevant."


Keywords: civil rights litigation, summary judgment, disparate treatment, Title VII


Andrew Wilson, Emery, Celli, Brinckerhoff, & Abady, New York, NY


 

June 3, 2013

Gender Stereotyping vs. Sexual-Orientation Discrimination


While Title VII of the Civil Rights Act of 1964 does not protect employees from sexual-orientation discrimination, plaintiffs are enjoying increasing success by characterizing their claims as impermissible gender stereotyping. In April, a Virginia federal court granted summary judgment against a male employee who alleged discrimination based on his perceived feminine characteristics and mannerisms. Henderson v. Labor Finders of Virginia, Inc., No 3:12cv600 (Apr. 2, 2013). However, a federal court in Florida reached the opposite conclusion when a male employee alleged sexual-orientation discrimination in his original complaint but stated a claim for sex discrimination based on gender stereotyping in an amended complaint. Anderson v. Napolitano, 108 FEP 1144 (Feb. 8, 2010). While these cases point to seemingly contradictory results, they illuminate how subtle differences in the manner of discrimination can lead to different results in gender-stereotyping litigation.


Raymond Henderson began work for Labor Finders of Virginia, Inc., in April 2010. Due to perceived discrimination based on his effeminate nature, Henderson filed a claim with the Equal Employment Opportunity Commission (EEOC) and a subsequent lawsuit. In Henderson's pleadings, he alleged that managers refused to assign him work because he did not meet "certain requirements" to be a good representative of Labor Finders. Henderson also presented evidence that project supervisors called him a "woman" and "gay," while other managers said that he was not a "real man" but was "a woman pretending to be something else." Although the court acknowledged that Henderson's evidence was somewhat vague, it refused to dismiss his claims. Instead, it pointed to "numerous examples of unfavorable employment actions taken against him . . . that could plausibly be viewed as discrimination on the basis of sex" in denying summary judgment.


The Anderson case, by contrast, resulted in a different outcome. Richard Anderson began work as a federal air marshal in 2000 and was promoted to supervisory federal air marshal in 2001. Upon his promotion, Anderson alleged that his superiors learned of his sexual orientation and began subjecting Anderson to various epithets. Anderson initially filed a charge alleging sexual-orientation discrimination with the EEOC. The charge was quickly dismissed as beyond the scope of Title VII. Anderson then filed a civil lawsuit on a pro bono basis, followed by an amended complaint alleging sex discrimination based on gender stereotyping after he obtained counsel. While Anderson plead that his superiors attributed "images and characteristics of effeminate behavior to him" by stating that he was "too gay" and "too flamboyant," the court held that such comments merely related to Anderson's sexual orientation. The court also refused to characterize Anderson's coworkers' alleged lisping and talking around him in a "stereotypically flamboyant voice" as evidence of gender stereotyping. As a result, the court concluded that any harassment Anderson experienced was not "because of sex" but rather on account of his sexual orientation. Anderson's claims were dismissed accordingly.


The juxtaposition of the Henderson and Anderson cases underscores evidence critical to surviving summary judgment in a Title VII claim based on sexual-orientation discrimination. For example, plaintiff's counsel representing a woman who contends she has been discriminated against because of her sexual orientation may consider focusing on coworkers' comments to the effect that she is "too macho," acts too aggressively, and/or doesn't dress in a feminine manner. Evidence that a particular plaintiff was called various homophobic epithets or stereotypes typically does not suffice to ward off summary judgment and may undermine other, solid evidence of gender stereotyping.


Defense counsel, by contrast, will typically endeavor to characterize such claims as sexual-orientation discrimination and will tend to highlight evidence that suggests coworkers and/or managers treated the plaintiff differently because they believed him or her to be gay. While not desirable, evidence of homophobic slurs, vulgar language, or similar epithets should be highlighted to recast the behavior as having been based on (perceived) sexual orientation.


As additional claims of this variety are brought under state and local laws, further development of a more analytical evidentiary standard is bound to occur.


Keywords: litigation, civil rights, employment, sexual orientation, gender stereotyping


David Gevertz and Matthew Leonard, Baker Donelson, Atlanta, GA


 

April 29, 2013

Hawaii Bill Would Protect Narrow Class of Traditional Outlets


A panel of Hawaii lawmakers approved last week a reporter’s shield bill that would eliminate all protections for free newspapers and magazines and for newspapers that distribute content exclusively online. It also would expand the exemptions that government officials could invoke to overcome the shield.


Hawaii’s current shield law, which allows journalists to refuse to testify in court about sources or unpublished information, is set to expire June 30, 2013. The bill would amend that law based on negotiations among lawmakers who want to make the law permanent but disagree on its scope. It’s heading now to the full legislature for a vote.


Clayton Hee, chairman of the Hawaii Senate Committee on Judiciary and Labor, added the language to the bill that would narrow the shield’s protections. He said the narrowing was necessary because judges need clear standards to determine who qualifies for the shield. When questioned about the language, though, Hee said journalists are not always truthful or accurate, adding, “I don’t think the shield law is a mechanism which necessarily prevents errors.”


(Side note: That’s not the purpose of the reporter’s shield. The purpose is to protect the free flow of information necessary for democratic self-government.)


The current shield law applies broadly to traditional and non-traditional news outlets and journalists, including bloggers. In contrast, the bill would limit the shield to a narrowly defined class of traditional outlets and journalists. For example, it defines “journalist” as a person who reports the news “for financial gain or livelihood,” it defines “magazine” as a publication “with a paid circulation,” and it defines “newspaper” as a publication “with a paid circulation” that is “printed.”


A number of journalism stakeholders have noted that those definitions fail to take into account the evolving nature of the media landscape. For example, Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, wrote in a letter to Hawaii lawmakers that the bill “ignores the proliferation of citizen-journalists who report on issues of public concern for no compensation and the rise of new media [that] are not printed on paper and do not charge customers for their content.”


Indeed, prominent Hawaii bloggers such as Ian Lind, and online news outlets such as Big Island Video News and The Hawaii Independent, would not receive protection under the bill. For that matter, nor would ProPublica, which has won two Pulitzer Prizes, if it were ever subpoenaed in Hawaii in connection with any newsgathering there. Meanwhile, it’s unclear whether Honolulu Civil Beat would receive protection. The bill excludes online newspapers but not online magazines, and Civil Beat bills itself as an online “news organization.”


Aside from the legal implications, the bill would de-incentivize innovation in news production and distribution by limiting shield protections to traditional outlets and journalists. The risk is that the shield would not cover innovative forms of production and distribution. This is troubling because the digital revolution has dispersed the production of news and forced traditional outlets to reinvent themselves to survive.


Keywords: civil rights litigation, shield law, reporter's privilege, freedom of the press, First Amendment


Jonathan Peters, Frank Martin Fellow, School of Journalism, University of Missouri


 

April 5, 2013

Ninth Circuit to Hear Oral Arguments on Reparative Therapy Ban


Last year, California governor Jerry Brown signed SB 1172, a law requiring state licensing agencies to discipline licensed mental-health professionals who provide reparative therapy, also know as “sexual orientation change efforts,” to lesbian, gay, and bisexual (LGB) minors. On April 17, 2013, the U.S Court of Appeals for the Ninth Circuit will hear oral arguments in two lawsuits challenging SB 1172.


Reparative therapy, as defined by SB 1172, focuses on “efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.” Reparative therapy is generally provided by a licensed mental-health provider (LMHP), a non-licensed counselor, a religious minister, or a layperson. Therapy may include individual counseling sessions, group therapy, and, in faith-based settings, prayer and scriptural study. Historically, reparative therapy used physically invasive techniques such as electroshock therapy, hormone therapy, and surgery. While these invasive techniques have largely been rejected by even proponents of reparative therapy, it is worth noting that a named plaintiff in one of the lawsuits challenging SB 1172 describes being prescribed pharmaceuticals “to help control sex drive” as a part of the therapy.


The two lawsuits challenging SB 1172, prepared by the non-profit organizations the Pacific Justice Institute (PJI) and the Liberty Counsel, allege violations of the First Amendment’s guarantees of free speech and free exercise of religion. It also alleges violations to parents’ fundamental liberty interest in raising their children as they see fit. The law was challenged on constitutional grounds almost immediately upon its enactment, despite Governor Brown being assured that the bill was constitutional by California Legislative Counsel Bureau, a non-partisan public agency.


Two judges in the U.S. District Court for the Eastern District of California heard the PJI and Liberty Counsel motions for preliminary injunction, and subsequently issued divergent rulings. Judge William Shubb granted the PJI’s motion for a preliminary injunction, limited to the three named plaintiffs. Judge Shubb found that the plaintiffs were likely to succeed on the merits of their First Amendment free-speech claims. In contrast, Judge Kimberly Mueller denied Liberty Counsel’s motion for a preliminary injunction, finding that the plaintiffs were not likely to succeed on the merits of any of their claims. The Liberty Counsel appealed Judge Mueller’s decision to the Ninth Circuit, and filed an emergency motion for temporary injunction pending appeal. On December 21, 2012, the Ninth Circuit granted the emergency motion for temporary injunction, which stayed SB 1172’s January 1, 2013, enactment until the appeal could be heard. California appealed the order granting preliminary injunction in the PJI case. The Ninth Circuit consolidated the two cases for oral arguments scheduled for April 17, 2013.


The Ninth Circuit’s decision turns primarily on the issue of whether SB 1172 will prevent licensed mental-health professionals from discussing reparative therapy at all, or only from practicing reparative therapy with minors. In Conant v. Walters, the Ninth Circuit struck down a statute that prohibited doctors from discussing medical marijuana with their patients, holding that it was an unconstitutional content-based restriction on doctors’ free-speech rights. Conant v. Walters, 309 F.3d 629, 639 (9th Cir. 2002). A number of amicus briefs have been filed in the Ninth Circuit. Notably, Erwin Chemerisnky, and other First Amendment scholars filed a brief arguing that SB 1172 does not implicate the First Amendment and, in the alternative, if it does, it is content-neutral and should be subject to rational-basis-level scrutiny. Some scholars also argued that the courts should defer to the legislative fact-finding underlying the statute in determining whether the state has a legitimate interest in regulating reparative therapy.


Similar attempts to limit the practice of reparative therapy are taking place in other states. For example, a New Jersey legislator promised to introduce a bill similar to SB 1172 in his state’s legislature. Just weeks after Governor Brown signed SB 1172 into law, the Southern Poverty Law Center filed an administrative complaint against a social worker in Illinois who provides reparative therapy. Additionally, on November 27, 2012, the Southern Poverty Law Center filed a lawsuit on behalf of plaintiffs in New Jersey who allege that reparative-therapy practitioners caused them economic and emotional harm. The California cases, however, are the first to be litigated, and are certain to set the tone for the rest of the upcoming reparative-therapy litigation.


Caitlin Sandley, Case Western Reserve University School of Law


 

January 14, 2013

Supreme Court to Hear Voting Rights Act Constitutional Challenge


In 1965, thousands of protestors in Alabama marched from Selma to Montgomery to protest policies and practices in the South that had kept minorities from voting. Months later, President Lyndon B. Johnson passed the Voting Rights Act, one of the landmark civil-rights achievements of the past century.


Now, 50 years after the act’s passage, the Supreme Court is considering a constitutional challenge to section 5 of the act in Shelby County Ala. v. Holder, 133 S. Ct. 594 (2012). Section 5 prohibits certain "covered jurisdictions"—predominantly counties and localities with a history of anti-minority election practices—from changing their election practices or programs without first obtaining "preclearance" or federal approval. The provisions, which were reauthorized in 2006, were originally meant to curb the racially motivated practices of the time, such as the assessment of literacy tests and poll taxes. More recently, the Department of Justice has used preclearance to block states such as Texas and South Carolina from implementing voter-identification laws.


In May 2012, the D.C. Circuit in Shelby County, Ala. v. Holder, 679 F.3d 848 (D.C. Cir. 2012), upheld section 5, ruling that Congress, under the pre-existing formula for determining "covered jurisdictions," did not exceed its authority under the Fourteenth and Fifteenth Amendments and, therefore, did not violate the Tenth Amendment and Article IV of the Constitution. Consequently, the city of Calera, which is located in Shelby County, could not move forward with a redistricting plan that the Department of Justice deemed discriminatory and based on unreliable data.


In its decision, the Court addressed two questions central to the Supreme Court's decision in Northwest Austin Municipal Utility District No. One (NAMUDNO) v. Holder, 557 U.S. 193, 129 S. Ct. 2504, 174 L. Ed. 2d 140 (2009): (1) whether current needs justify the burdens imposed by section 5, and (2) whether section 5's coverage formula sufficiently relates to the problems it seeks to solve.


The D.C. Circuit found that section 5's requirements were congruent and proportional because Congress took into account (1) the pervasiveness of serious racial discrimination in covered jurisdictions, (2) section 5's ability to address these issues, and (3) the adequacy of alternatives such as the ability to file a lawsuit challenging discriminatory voting practices pursuant to section 2 of the Voting Rights Act. The Court showed deference to Congress, noting that "these are quintessentially legislative judgments, and Congress, after assembling and analyzing an extensive record, made its decision: Section 5's work is not yet done." Shelby County, 679 F. 3d at 873.


The Court has yet to hear arguments from either side. Shelby County will likely argue that section 2 provides a sufficient remedy to preventing racially motivated practices and that section 5 can only be sustained based on evidence of “a widespread pattern of electoral gamesmanship showing systematic resistance to the Fifteenth Amendment.” In addition, it will likely echo the D.C. Circuit's dissent in contending that Congress's 2006 renewal of the preclearance requirement exceeded its enforcement power by using an outdated formula to identify covered jurisdictions. This formula, according to the dissent, "lacks any rational connection to current levels of voter discrimination,” and "is a remarkably bad fit with Congress’s concerns.” Id. at 883. The majority opinion addressed this argument by noting that the data, though old, still accurately singled out jurisdictions where discrimination occurs when combined with section 5's bail-in and bailout provisions.


While the D.C. Circuit rejected Shelby County's arguments, there is reason for optimism among opponents of section 5. Though the Supreme Court declined to address the constitutionality of section 5 in NAMUDNO, it did hint at the possibility of striking down the law in the future. Justice Roberts, in the NAMUDNO majority opinion, wrote that "the evil that Section 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance," and that "the statute's coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions."


A win for Shelby County could have a serious impact on voting laws. The Department of Justice frequently uses section 5 to block election practices that may have adverse consequences on minority voters, such as the voter ID laws in Texas and South Carolina. The Department of Justice has also used preclearance to block early voting reductions in states such as Florida and void redistricting maps, such as the one in Shelby County or a recent statewide redistricting plan in Texas.


Striking section 5 would mean that parties would have to challenge potentially discriminatory voting practices in court under section 2, with the burden falling on those challenging the laws, not the states and localities. Congress could also amend the Voting Rights Act to apply preclearance to the entire country, though recent gridlock in Washington could stand in the way of such an amendment. Indeed, almost 50 years after the marches from Selma to Montgomery, the Supreme Court could significantly weaken one of the crowning legislative achievements of the Civil Rights Movement.


Suhas Subramanyam, Northwestern University School of Law


 

December 18, 2012

Prison Suicide Case Clarifies Deliberate Indifference


In suits alleging deliberate indifference to serious medical needs, in violation of 42 U.S.C. § 1983, plaintiffs must plead and prove that individual defendants had actual, subjective knowledge of a substantial risk of harm to which they were deliberately indifferent. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). Defendants often seek to defeat such claims by attacking plaintiffs’ allegations or proof as to individual defendants’ subjective knowledge. In Bock v. County of Sutter, Case No. 2:11-cv-00536-MCE-GGH, 2012 U.S. Dist. LEXIS 124699, 2012 WL 3778953 (E.D. Cal. Aug. 31, 2012), Judge Morrison C. England, Jr. of the Eastern District of California rejected the contention that, in a case alleging deliberate indifference to a risk of suicide, the Farmer subjective standard requires that a defendant be aware of an inmate’s express threat to commit suicide. Instead, subjective knowledge can be pled and proven from the symptoms and circumstances known to correctional staff and medical providers.


Read the full case note.


Keywords: civil rights litigation, section 1983, deliberate indifference, suicide, inmate, jail


Kathryn G. Mantoan and Aaron J. Fischer, Rosen Bien Galvan & Grunfeld LLP, San Francisco, CA


 

December 18, 2012

Supreme Court Strikes Down Key Parts of Anti-Eavesdropping Law


On November 26, 2012, the U.S. Supreme Court denied hearing the Illinois state’s attorney’s petition to for “legal clarification and guidance” on the Seventh Circuit’s decision overturning key parts of the Illinois Anti-Eavesdropping Statute, which criminalized citizens recording police officers doing their jobs in public.


On May 8, 2012, the Seventh Circuit Court of Appeals ruled that prosecutors in Illinois could not enforce the Illinois statute, which made it a felony to audio record “all or any part of any conversation” without all parties’ consent. The American Civil Liberties Union (ACLU) of Illinois had created a plan to openly make audio-video recordings of police officers performing their duties in public places and speaking at volume audible to bystanders. Concerned that videographers would be prosecuted under the anti-eavesdropping statute, the ACLU filed this pre-enforcement action against Anita Alvarez, the Cook County state’s attorney. The Seventh Circuit ordered a preliminary injunction blocking enforcement of this statute as applied to audio recording working on-duty law-enforcement officers. In response to the Supreme Court ruling, the ACLU of Illinois requested the federal court judge in the Northern District of Illinois to create a permanent injunction, barring state’s attorneys from prosecuting anyone under the statute.


Read the full case note.


Keywords: civil rights litigation, eavesdropping, police, recording


Christina Liu, Andrew M. Hale & Associates LLC, Chicago, IL


 

November 30, 2012

State of Our Union


As it stands currently, the Defense of Marriage Act (DOMA) sits on an ever-crumbling foundation of shaky jurisprudence and poor reasoning. Unlike the prophetic “city on a hill,” DOMA’s foundation lies on a murky bog—namely, Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971) [membership required] and Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982) [membership required].


In Baker, two males applied for a marriage license from the state of Minnesota. The clerk of court denied their application. Upon review, the Minnesota State Supreme Court held that prohibiting gay marriage was not irrational or invidious discrimination. The court’s justification was that the traditional meaning of marriage is between a man and a woman, and the purpose of marriage is procreation and child rearing. The U.S. Supreme Court denied certioraribecause, at first glance, there was no substantial federal question.


In Adams, a court clerk issued a marriage license to a homosexual couple, Adams and Sullivan. Adams was a citizen of the United States, but Sullivan was a citizen of Australia. Subsequently, Adams petitioned the U.S. Immigration and Naturalization Service (INS) to have his partner, Sullivan, classified as an immediate relative. The INS denied the petition, and the Ninth Circuit affirmed its denial. The Los Angeles Office of the U.S. Department of Justice persuaded the court. In its brief, it wrote, “a marriage between two males is invalid for immigration purposes.” Furthermore, it “cannot be considered a bona fide marital relationship since neither party to the marriage can perform the female functions in the marriage.” The Ninth Circuit also affirmed the INS’s order to deport Sullivan in 1985. Sullivan v. Immigration & Naturalization Service, 772 F.2d 609 (9th Cir. 1985) [membership required].


In 1996, Congress passed DOMA, which defined marriage as the “legal union between one man and one woman.” Recently, cases in federal courts have been subjected to the same flawed reasoning and homophobic disdain as in Baker and Adams. There are at least 10 federal cases fighting the constitutionality of DOMA, and in particular, section 3, which codifies the non-recognition of same-sex marriages for all federal purposes. Some of the notable purposes include government-employee insurance benefits, Social Security survival benefits, and filing of joint tax returns. To put this into perspective, the Human Rights Campaign counts over 1,000 benefits, rights, and protections that are denied to same-sex couples.


Several cases that challenge DOMA are up for Supreme Court review. On November 30, 2012, the Supreme Court will decide the fate of some these petitions for certiorari. Golinski v. United States Office of Pers. Mgmt., 824 F. Supp. 2d 968 (N.D. Cal. 2012) [membership required], like many of the current DOMA cases, involves the right for married same-sex couples to receive federal employment benefits. The Supreme Court is also planning to consider additional cases collectively: Massachusetts v. United States HHS, 698 F. Supp. 2d 234 (D. Mass. 2010) [membership required] and Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374 (D. Mass. 2010) [membership required]. These cases arise from Massachusetts and concern the distribution of federal employee benefits to same-sex spouses.


With the current wave of lawsuits challenging DOMA, the act’s days are numbered. Nine states and the District of Columbia allow gay marriage. Additionally, four of the nine states have legalized gay marriage as of the recent election. Of the four, voters approved gay marriage in three of the states: Maine, Maryland, and Washington. In the fourth state, Minnesota, the voters rejected a constitutional ban on gay marriage, throwing into question the applicability of Baker. With Golinksi facing review by the Supreme Court, the long-standing error, that is, the rule in Adam, could potentially be put to rest. This would terminate an erroneous line of cases with flawed justifications.


Furthermore, the quicksand upon which DOMA stands is quickly swallowing the shaky foundation. The Department of Justice is no longer the driving force that is defending DOMA. The Republican-held House of Representatives and its five-member standing body, the Bipartisan Legal Advisory Group (BLAG), is now guarding the facade. Because it believes that section 3 of DOMA cannot be constitutionally applied to same-sex couples whose marriages are legally recognized under state law, the Department of Justice decided to abandon the defense of DOMA.On February 23, 2011, President Barack Obama placed one of the final nails into DOMA’s coffin. He asserted that section 3 of DOMA could not survive the scrutiny used for classifications based on sex. With the tides turning against DOMA, the fight for marriage equality continues gaining strength, especially as Illinois is pushing legislation for same-sex marriage that could take effect as early as the new year.


Christina Salabert and Bryan Szalewski, Case Western Reserve University School of Law


 

November 2, 2012

Ninth Circuit to Hear Oral Arguments in Three Important Gun Cases


The U.S. Court of Appeals for the Ninth Circuit issued an order scheduling oral arguments in three major Second Amendment cases: Richards v. Prieto, Peruta v. County of San Diego, and Baker v. Kealoha. Arguments will take place at the San Francisco Ninth Circuit location on December 6, 2012.


Richards v. Prieto, originally titled Sykes v. McGinness, began as a challenge to the concealed-carry licensing policies and procedures of Sacramento and Yolo counties in California. Though the case, brought by Second Amendment Foundation and the Calguns Foundation, led to Sheriff John McGinness and Sacramento County settling out of court and going “shall-issue,” Yolo County and Sheriff Edward Prieto held steadfast (hence the change-in-case caption).


On appeal from the district court’s grant of Sacramento County’s motion for summary judgment, the case will ask the Ninth Circuit to decide whether or not a licensing authority may “condition the issuance of permits to exercise the fundamental Second Amendment right to bear arms, and classify applicants with respect to the exercise of that right, upon that authority’s discretionary assessment of need and moral character.”


Peruta v. County of San Diego is similar to Richards, but narrower. Peruta challenges San Diego County Sheriff William Gore’s concealed-carry licensing policies by asking the court to find that Sheriff Gore must accept self-defense as good cause for the issuance of a license to carry. Peruta is backed by the National Rifle Association.


Baker v. Kealoha, is a case filed by the Hawaii Defense Foundation’s founding director and president, Christopher Baker, against Honolulu Chief of Police Louis Kealoha, the Honolulu Police Department, the City and County of Honolulu, the State of Hawaii, and Hawaii Governor Neil Abercrombie. The suit alleges that Hawaii’s firearm regulations are unconstitutional because Hawaii state law mandates that citizens may be provided licenses to carry only when the issuing authority finds that the applicant “appears suitable” and “exceptional circumstance” exists or “a need or urgency has been sufficiently indicated.”


All three cases will lead to the defining of law dealing with the “bear” aspect of the right to keep and bear arms within the Ninth Circuit’s jurisdiction. Depending on how things go on December 6, we may see one or even all of these cases seeking review from the Supreme Court.


Bobbie K. Ross, Law Office of Bobbie K. Ross, Manhattan Beach, CA


 

September 21, 2012

My Big Gay Southern Wedding: Marriage Equality and the Arc of Justice


Perhaps more than any other social-justice movement right now, the movement for marriage equality has achieved consistent legal momentum. On February 7, 2012, the Ninth Circuit held that California’s Proposition 8, a voter referendum that repealed same-sex marriage in California, is unconstitutional. Perry v. Brown, 2012 WL 372713 (9th Cir.). The precedential significance of the rather narrow ruling remains to be seen, and the prospects of the case going to the Supreme Court are uncertain. But conversations about same-sex marriage have been reinvigorated in recent months by the Ninth Circuit’s decision: Washington, New Jersey, and Maryland’s legislative approval of same-sex marriage bills, anti-marriage equality referendums such as North Carolina’s Amendment One, and President Obama’s announcement that he has “evolved” and come to support marriage equality. These developments have gotten me thinking about my own marriage.


On November 25, 2011, I got to marry the coolest person I know in front of 120 friends and family members. My wife and I were married by two Baptist ministers in a small church in downtown Birmingham, Alabama. Everyone beamed at the flower girls, cried during the vows, ate and drank too much at the reception, and, in standard Southern fashion, spent the next day watching football. My wedding was perfect beyond my wildest expectations, and the fact that my marriage is not legally recognized in Alabama, Ohio (our current home), or 39 other states made no difference that day.


Of course the legality, or illegality, of my marriage matters most other days when I silently deliberate between using “partner,” “wife,” or self-preserving lies in everyday conversations with colleagues, professors, and strangers; when I file my taxes as “single,” and when I speculate about the practical significance and legal weight our powers of attorney will actually have in the unfortunate event that my wife or I face death or a medical emergency. The law makes a difference much of the time.


But the lives of legally marginalized individuals are sprinkled with moments, like my wedding, when community, faith, and love trump the law and temporarily banish systemic oppression. Those moments are evidence of Martin Luther King Jr.’s “arc of justice” that moves in the direction of an ideal time and society where the law has caught up with what is right. Realistically, I am certain I will not see the end of the “arc of justice” in my lifetime, and who knows if anyone ever will, but as a new member of the legal community, I ask myself all the time what my role is in continuing the momentum of all justice movements along the arc and in acknowledging and celebrating those few, brief moments when justice prevails.


Caitlin Sandley, Case Western Reserve University School of Law


 

July 9, 2012

Victory Fighting Criminalization of People Living with HIV


On June 29, 2012, after serving five years in prison, David Plunkett was set free, following the New York Court of Appeals’ rejection of an aggravated-assault charge based upon his being HIV-positive. The state’s high court had remitted the case back to Herkimer County Court for resentencing in its ruling June 7, 2012, that an individual’s saliva, like other body parts, cannot be considered a deadly weapon or dangerous instrument under New York penal law. The ruling further develops and clarifies New York law, explaining that bodily substances that are naturally present do not support such a prosecution based on aggravated assault.


In September 2006, David Plunkett was arrested following an altercation with police during which he allegedly bit one of the police officers. Because he subsequently revealed to the officers that he has HIV, Plunkett faced assault charges, including the charge of aggravated assault upon a police officer, a felony premised on use of a dangerous instrument (under N.Y. Penal Law § 120.11), with the prosecutor—and ultimately the trial court—deeming Plunkett’s saliva-coated teeth to satisfy the definition of a “dangerous instrument.”


Plunkett entered a guilty plea but specifically preserved for appeal his claim that his saliva was not a dangerous instrument. He argued for an extension or clarification of the court’s prior holding in People v. Owusu, 98 N.Y.2d 398 (1999), that “an assailant’s teeth [cannot] be deemed [a deadly instrument] within the definition of the Penal Law,” as the teeth “come with” the individual. According to the trial court, Plunkett’s teeth were not the deadly instrument; rather it was his “saliva, infected with the AIDS virus that is the substance that is a dangerous instrument. . . .” The court opined that Plunkett’s teeth served as the vehicle for injecting his saliva into the officer’s body, and the Appellate Division rejected Plunkett’s counterargument—but the New York Court of Appeals reversed. The court of appeals specifically noted that, as in Owusu, Plunkett’s “teeth came with him,” and therefore could not satisfy the definition of a dangerous instrument. The court pointed out that holding otherwise would result in a “sliding scale of criminal liability” based on each person’s size, weight, strength, and general ability to cause harm with their bodies.


The case had drawn friend-of-the-court support from Lambda Legal, writing on behalf of additional amici the American Academy of HIV Medicine, the Association of Nurses in AIDS Care, the Center for HIV Law and Policy, and the HIV Medicine Association, and joins other efforts against criminalizing the lives of people with HIV.


Many states currently have laws that add or enhance criminal penalties based on the presence of the human immunodeficiency virus. The amicus brief urged the court of appeals to rule out the aggravated-assault charge, because a fair reading of the law does not support interpretation of saliva or teeth as a dangerous instrument, and because the charge fuels public misunderstanding of how HIV is transmitted, contributes to stigmatizing people with HIV, and undermines important public-health goals—because the federal Centers for Disease Control and Prevention verifies that contact with saliva alone has never been shown to result in transmission of HIV.


Hayley Gorenberg and Kienan Christianson


 

June 11, 2012

NLRB AGC Strikes Down Overbroad Workplace Social Media Policies


As social-media use by employees continues to present new challenges in the workplace, the NLRB Acting General Counsel (AGC) recently released a report providing guidance on employer policies in this area. (Operations Management Memo (Memo), May 30, 2012, available at.) The report discussed seven recent cases, providing examples of lawful and unlawful provisions in employers’ social-media policies.


Under section 7 of the National Labor Relations Act, employees have the right to organize and bargain collectively, and to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” (29 U.S.C. § 157.) Generally, social-media rules are unlawful if “they would reasonably be construed to chill the exercise of section 7 rights.” (Memo, p.3.) Rules that are ambiguous regarding section 7 activity, and that contain no limiting language that would clarify that the rules do not restrict such activity, are unlawful. (Id.) Some of the major categories of social-media rules that the AGC found unlawful include:


Prohibiting employees from releasing or sharing confidential employee or company information: The AGC found that such rules, without any limiting language, would reasonably be interpreted as prohibiting workers from discussing or disclosing information about their wages and other conditions of employment. (Id. at pp. 4–5, 7, 9–10.) Employees not only have a right to discuss this information with each other, but also to seek help from third parties—such as unions, media outlets, and government agencies. (Id. at 15, 18–19.)


Prohibiting employees from posting photos and other content without obtaining the owner’s permission, and from using the employer’s logos and trademarks without permission: The AGC found that workers would reasonably interpret these rules to prohibit the use of photos and videos of workers engaging in section 7 activities. For example, under such policies, an employee might have reservations about posting photos of a union strike with picket signs containing the employer’s logo, thus restricting his right to engage in section 7 activities. (Id. at p.7, 11.)


Instructing employees to think carefully about “friending” coworkers on social media sites: According to the AGC, without limiting language, such a rule was unlawfully overbroad because it would discourage communications among workers, including discussions about the terms and conditions of their employment. (Id. at pp.8–9.)


Warning employees to avoid picking fights and discussing “objectionable or inflammatory” topics online: The AGC struck down this rule, based on the reasoning that discussions about working conditions or unionism could potentially become heated and controversial. (Id. at p.10.) The rule would thus discourage workers from engaging in “robust but protected discussions” about their workplace rights. (Id.)


Prohibiting employees from commenting on pending legal matters: The AGC found this provision to be unlawful because it specifically restricts employees’ rights to discuss potential claims against the employer. (Id. at p.10.)


Prohibiting employees from making offensive, inappropriate, disparaging or defamatory comments about the employer either online or offline: This rule was unlawful because workers would reasonably construe it to prohibit protected criticisms of the employer’s labor policies or its treatment of employees. (Id. at pp. 8, 17.) For example, such a rule could be used to prevent an employee from posting and commenting on Facebook about wage violations in his or her workplace— which is protected section 7 activity. However, such a rule could be lawful if it provided sufficient examples of plainly egregious conduct— such as harassment or bullying— such that workers would understand that the rule did not restrict their section 7 rights. (Id. at 20.)


It is also worth nothing that in several of the cases, the AGC determined that the inclusion of a “savings clause” in the employer’s social media policy— stating that the policy would be administered in compliance with section 7 of the NLRA— was insufficient to cure the ambiguities in the unlawful provisions. (Id. at pp. 9, 12, 14.) On the other hand, arguably overbroad rules could still be lawful if they provide “sufficient examples of prohibited conduct, so that, in context, employees would not reasonably read the rules to prohibit Section 7 activity.” (Id. at p.20.)


As this report is only the opinion of the AGC, who is responsible for prosecuting alleged violations of the NLRA, it is unclear whether the report reflects the position of the NLRB and how much weight should be given to the report. Employers and employees should be on the lookout for further guidance in the future from the NLRB or the courts regarding social-media policies in the workplace.


— Lisa P. Mak, Lawless & Lawless, San Francisco, CA


 

June 6, 2012

Nordyke: The Case That Never Ends Finally Ends—For Now


On June 1, 2012, the Ninth Circuit Court of Appeals filed an opinion on the second rehearing en banc in Nordyke v. King, No. 07-15763 (Nordyke VI). The opinion, written by Judge Susan P. Graber, still did not address the issue that has been lingering in the Ninth Circuit since the U.S. Supreme Court issued its opinion in Disrict of Columbia v. Heller, 554 U.S. 570 (2008), i.e., what level of scrutiny applies to Second Amendment claims brought within the Ninth Circuit.


Often referred to as “the Alameda gun show case” (and sometimes as “the case that doesn’t end” because of its long and tangled procedural history), Nordyke involved a constitutional challenge on First and Second Amendment grounds to an Alameda County, California, ordinance that bans firearms from county property, including the Alameda County fairgrounds. The casehas been litigated for over 12 years.


In this particular run before the en banc panel, the Ninth Circuit determined that “[i]t is undisputed that Plaintiffs are legally authorized to sell firearms and that, if allowed to conduct a gun show on County property, they would offer for sale only firearms that they lawfully could sell under federal and state statutes.” What was different this time around was that Alameda County now believes its ordinance does not prohibit gun shows from being held on its property with firearms present and available for “meaningful physical inspection” by potential buyers.


The court decided to hold Alameda County to its interpretation of the ordinance found in its initial and supplemental briefing before the three-judge panel and used during oral argument before the en banc panel, wherein counsel for Alameda County asserted that the plaintiffs could offer firearms for sale with the requirement that the firearms be secured by a “sturdy cable” attaching the firearm to a fixture when not in the actual possession of authorized participants. Based on that concession with regard to Alameda County’s interpretation of its ordinance, the court found that the plaintiffs could not state a viable Second Amendment claim. The Ninth Circuit also affirmed the district court’s ruling on the First Amendment claim for the reasons given by the three-judge panel in its previous opinion. See Nordyke v. King, 644 F.3d 776, 791–94 (9th Cir. 2011) (Nordyke V).


Judge Diarmuid F. O’Scannlain wrote a concurrence that agreed with the majority’s outcome but not their method. O’Scannlain believes that the standard-of-scrutiny issue should have been addressed and stated that he would readopt the three-judge panel’s substantial-burden test from Nordyke V.


Judge Sandra S. Ikuta’s concurrence also took issue with the majority’s failure to address the appropriate standard of review, and seemingly chastised them for using the “rule of thumb” standard and failing to “ascertain how the requirement that firearms be tethered to a table actually burdens gun shows,” or the nature of the fit between this burden and the government’s alleged purpose of promotion of public health and safety by helping to reduce injuries and deaths caused by firearms.


So, after all of the hullabaloo involved in the 12 years of litigation in Nordyke, the case ends with a concession by Alameda County, and no standard of review for Second Amendment cases in the Ninth Circuit is somewhat anticlimactic. However, the majority did note that “[s]hould the County add new requirements or enforce the ordinance unequally, or should additional facts come to light, Plaintiffs or others similarly situated may, of course, bring a new Second Amendment challenge to the relevant laws or practices.” Given this case’s convoluted history, it would not be at all surprising to see it before the Ninth Circuit en banc panel again another 12 years from now.


Bobbie K. Ross, Law Office of Bobbie K. Ross, Manhattan Beach, CA


 

May 23, 2012

Activists Appeal Finding that $340 Handgun License Is Not Excessive


On April 18, 2012, the Second Amendment Foundation appealed the U.S. District Court for the Southern District of New York’s order in Kwong v. Bloomberg. In Kwong, the district court held that New York City’s $340 fee for a “residence premises” handgun license (needed to lawfully possess a handgun in New York City) was not excessive and that a state statute allowing New York City to depart from the $10 ceiling on such licenses for virtually all other areas of New York State did not violate the Equal Protection Clause of the Fourteenth Amendment.


The lawsuit, filed by seven individual plaintiffs, the Second Amendment Foundation, and the New York State Rifle & Pistol Association, challenged: (1) New York City’s $340 fee on the ground that it impermissibly interfered with the plaintiffs’ Second Amendment rights; and (2) New York State’s exemption of New York City from the $10 fee ceiling on the ground that this exemption violated the Equal Protection Clause of the Fourteenth Amendment.


Ruling on cross motions for summary judgment (filed before discovery was exchanged), the district court found that the government may impose a fee designed to defray the administrative costs of regulating a protected activity. Although the district court recognized that “it is possible to conceive of fees that are impermissible because they are so exorbitant as to deter the exercise of the protected activity,” it found plaintiffs had presented “no evidence that the fee has deterred or is likely to deter any individual from exercising his or her Second Amendment rights[.]” Moreover, the court found there was no real dispute regarding the proposition that the $340 fee was less than New York City’s expenses related to issuing residential handgun licenses. Accordingly, the district court held “the $340 fee is a permissible fee imposed on the exercise of constitutionally protected activities and does not violate the Second Amendment.” The district court also alternatively found that the fee survives intermediate means-end scrutiny because the $340 application fee effectively defrays expenses that are substantially related to the important governmental objective of preventing violence.


With respect to the equal-rights argument, the district court concluded that rational-basis review is appropriate because the scheme does not involve any suspect classifications (e.g., race, sex, religion) and imposes no burden on the Second Amendment right to keep and bear arms. The court explained that New York State’s law did not burden the Second Amendment right to keep and bear arms because it, unlike the New York City law, identified no fee and that under the state law, the city “could choose to set the fee lower than the $3–$10 range applicable to the rest of the State.” The district court held that New York had a rational basis for exempting New York City from the general statewide fee ceiling because it allowed New York City to more closely match the fee to its expenses.


V. René Daley, Chamberlin Keaster & Brockman LLP, Encino, CA


 

May 23, 2012

CO High Court Expands Right to Bear Arms to Public Universities


On Monday March 5, 2012, Coloradans’ constitutional right to bear arms was expanded when the Colorado Supreme Court invalidated portions of the University of Colorado Board of Regents’ weapons-control policy pertaining to the possession of firearms on the basis that the policy violates the Colorado Concealed Carry Act (CCA). The case was decided en banc and affirms the decision of the Colorado Court of Appeals. The lawsuit, The Regents of the University of Colorado, et al. v. Students for Concealed Carry on Campus, LLC, et. al, 2012 CO 17, 2012 WL 691538 (Colo. Mar. 5, 2012), filed by the Students for Concealed Carry on Campus and three representative plaintiffs, marks a turning point in the fight for the right to bear arms on college campuses.


The case began in December 2008 with the filing of a complaint by the Students for Concealed Carry on Campus and three representative plaintiffs who attended the University of Colorado, Colorado Springs, and University of Colorado, Denver. The complaint alleged that the University of Colorado Board of Regents’ weapons-control policy (adopted March 17, 1994), which prohibits the carrying of firearms on campus by all persons except for certified law-enforcement personnel or those who have written permission from the chief of police, violated the CCA (passed in 2003) and the state constitution’s right to bear arms. The plaintiffs, all of whom asserted they held valid concealed-carry permits under the CCA, wanted to possess a handgun for self defense when traveling to, from, through, or on the campuses of the University of Colorado.


The trial court dismissed the plaintiffs’ action for failing to state a claim for relief. However, the Colorado Court of Appeals reversed, holding that the plaintiffs stated a claim for relief under the CCA, which expressly applies to all areas of the state and under article II, section 13 of the Colorado Constitution, which provides Coloradans with the individual right to bear arms in self-defense. The Colorado Supreme Court affirmed the appeals court’s decision on statutory grounds, citing the CCA’s pronouncement of field preemption in the area of regulations relating to the concealed carrying of firearms in Colorado to create consistency in the law.


Particularly, the Colorado Supreme Court held that, “The Concealed Carry Act’s comprehensive statewide purpose, broad language, and narrow exclusions show that the General Assembly intended to divest the Board of Regents of its authority to regulate concealed handgun possession on campus.”


Consequently, the Colorado Supreme Court determined that the guidelines enumerated in the CCA dictate which restrictions may be placed on concealed carry of firearms in Colorado. The CCA specifically provides that a concealed-carry permit issued pursuant to the CCA does not authorize a person to carry a concealed handgun: (1) into a place where the carrying of handguns is prohibited by federal law; (2) onto the real property or into any improvements erected on a public elementary, middle, junior high, or high school; (3) into a public building at which security personnel and devices screen each entrant for weapons and require any weapons to be left in their possession while the entrant is in the building; and (4) any place where a private-property owner, private tenant, private employer, or private business entity has rights to exclude handguns. Conspicuously absent from this language are colleges and universities. On that basis the court reasoned that the General Assembly divested the Board of Regents of its authority with regard to concealed firearms.


Carrying concealed firearms (when accompanied by a validly issued concealed-carry permit) on college campuses has been a hotbed of discussion in recent years with state legislatures around the country debating legislative action on the issue. This case may have far-reaching implications as states with similar legislative pronouncements on record are potentially open to a challenge. As a demonstration of the stakes in this case, a partial list of the amici include: The Brady Center to Prevent Gun Violence, Colorado Ceasefire Capitol Fund, the National Rifle Association, Rocky Mountain Gun Owners, The County Sheriffs of Colorado, and the Second Amendment Foundation.


Keywords: civil rights litigation, second amendment, gun rights, concealed carry, state school


— Matthew S. Erickson, 3L at Pepperdine University School of Law, Malibu, CA


 

May 16, 2012

Hate Crimes Sentencing in New Jersey Stirs Debate


As the sentencing date for Dharun Ravi on bias-intimidation charges approaches in the notorious Rutgers webcam-spying case, lawyers, advocates, and the public at large continue discussing laws against hate crimes. On May 21, 2012, Mr. Ravi is scheduled to be sentenced on multiple counts carrying up to 10-year prison terms.


At the time of the conviction, the New York Times invited a varied slate of lawyers, law professors, and advocates, including ABA Civil Rights Litigation Committee Cochair Hayley Gorenberg, to opine on hate crimes laws in the widely read "Room for Debate" online opinion page.


Gorenberg was joined by Wade Henderson of the Leadership Conference on Civil and Human Rights ("Why We Need Bias Laws"), columnist Tish Durkin  ("Focus on the Crime, Not the Victim"), law professor James B. Jacobs ("Weapons Weaken as Target Expands"),  and Chris Anders of the American Civil Liberties Union ("Hate Crime Laws Deter Violent Crime").



The debate continued on national radio talk shows.  To listen, try these links: "Talk of the Nation," "The Takeaway," and "On Point".

Mark K. Stansbury, The Stansbury Law Firm, Columbus, OH


 

May 16, 2012

Implicit Bias Theory Rejected in Pippen v. Iowa


Iowa’s executive branch did not discriminate against African Americans in its hiring and promotion policies. That was the conclusion of an Iowa district court on April 17, 2012, in Pippen v. Iowa. The Pippen plaintiffs—a class of current and former African American employees and would-be employees of Iowa’s various executive-branch agencies—plead discrimination under a novel theory of “implicit bias.” The court was skeptical that the plaintiffs’ theory could give rise to an actionable claim, particularly under the facts of this case.


The plaintiffs’ complaint alleged that the State of Iowa and 37 departments of the executive branch denied them equal opportunity for employment. However, the plaintiffs did not allege deliberate discrimination. Rather, they raised a novel claim that the state’s failure to follow equal-employment-opportunity laws resulted in effective discrimination. In other words, rather than carrying out deliberate discrimination, the plaintiffs alleged that Iowa’s lax enforcement of equal-opportunity rules opened the door for the implicit biases of hiring officers.


Although the court was sympathetic to the plaintiffs’ position, and acknowledged that “the law of equal rights will evolve,” it ultimately found that the plaintiffs’ “novel claim” lacked adequate support or justification in this case. Nor was the court convinced that any actual discriminatory effect existed. The court pointed to several shortcomings in the plaintiffs’ arguments, including:


  • There was no single agency responsible for monitoring the state’s equal-employment laws. The state’s 37 agencies each made their own hiring decisions. Some 2000 managers were responsible for hiring decisions statewide. In discussing this point, the court drew on the Supreme Court’s recent decision in Wal-Mart v. Dukes, 564 U.S. ____ (2011).

 

  • The plaintiffs’ expert produced weak evidence of implicit bias. He primarily relied on the Implicit Association Test, an uncontrolled Internet study. No results specific to Iowa were produced. The court found that the plaintiffs’ evidence of implicit bias merely amounted to “conjecture, not proof of causation.”

  • The plaintiffs’ novel theory was that the state abdicated its duty to prevent discrimination. However, the court held that to find discrimination, the plaintiffs must point to a specific employment practice that lead to the discrimination. The plaintiffs’ made no attempt to find such a practice. The court determined that “The ‘entire hiring process’ is not a particular employment practice. To that extent, the claim under the Iowa statute fails factually.”

 

  • It was not clear that there was in fact a disparate impact on African Americans. Black workers in Iowa do better in the public sector than the private. And in some agencies, blacks out-performed whites. That the inverse was true in certain agencies did not convince the court that the plaintiffs had produced adequate evidence of systemic discrimination, particularly because the plaintiffs’ made no effort to address alternative explanations such as statistical chance.

As in the Wal-Mart case, the court found that there was simply inadequate evidence to conclude that the state had ignored equal-employment rules and allowed implicit bias to produce discriminatory results. The evidence of discriminatory effect was thin. And the legal claim of inaction by the state plus implicit bias by managers was simply untested and—at best—premature.


Keywords: litigation, civil rights litigation, equal employment opportunity, discrimination, implicit bias, class action


Mark K. Stansbury, The Stansbury Law Firm, Columbus, OH


 

April 9, 2012

Fletcher v. Haas: Rights of Permanent Resident Aliens


In Fletcher v. Haas, (D. Mass. Mar. 30, 2012),the U.S. District Court for the District of Massachusetts held that permanent-resident aliens are included amongst “the people” as the term is used in the Second Amendment to the U.S. Constitution.


The individual plaintiffs in this case were Christopher Fletcher and Eoin Pryal, two British immigrants who had both been granted permanent-resident-alien status and who both had significant family, employment, and community contacts within the United States. Wishing to possess firearms in their own homes, both Fletcher and Pryal completed the Massachusetts Basic Firearms Safety Course, which is required under Massachusetts’s law to apply for a firearms identification card. M.G.L.A. 140 § 131P. Unlike most states, in Massachusetts, a firearms identification card is required to simply “own, possess, or purchase a firearm, rifle, shotgun or ammunition.” M.G.L.A. 140 § 129C. Therefore, any denial of a firearms-identification-card application is effectively a complete ban on the possession of firearms.


Here, the applications of both Fletcher and Pryal were denied based upon the citizenship requirement that Massachusetts law imposes upon applicants for a firearms identification card. M.G.L.A. 140§ 129B(1)(vii).


Fletcher and Pryal subsequently raised both equal-protection and Second Amendment challenges to the citizenship requirement. The Second Amendment challenge was based upon the argument that because the firearms identification card is a prerequisite to simple possession of a firearm in the home for self defense, any barrier to acquisition of a firearms identification card touches upon what the Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008), described as the “core” of the Second Amendment.


The court spent quite a bit of time on their analysis of the term “the people.” Specifically addressing the historical trend of non-citizens petitioning the government for redress of grievances, they noted that “[o]ther rights guaranteed by the Constitution to ‘the people’ were freely exercised by non-citizens at the time of the founding.” They went on to point out that the only instance in which the term “the people” was considered by the high court to be synonymous with “citizens” was in the infamous slavery case of Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 404 (1856).


The court also cited the more recent case of United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), for the proposition that lawful resident aliens “receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country.”


Having thereby established that aliens with sufficient contacts do generally fall within the constitutional meaning of “the people”, they next turned to an analysis of the holding in Heller, which the state argued could be read to only apply to citizens. The court found it illustrative that while the opinion in Heller did use varying terms including “citizens,” “Americans,” and “law abiding citizens” throughout, it specifically addressed the question of the scope of the term “the people” and reaffirmed Verdugo-Urquidez by finding that the term “unambiguously refers to all members of the political community, not an unspecified set.”


The court also did a rather brief analysis of the post-Heller level-of-scrutiny holdings. However, the court largely avoided this still-developing area of jurisprudence by stating that the regulation in question, where lawful resident aliens are concerned, does not pass constitutional muster under any possible standard of review.


And while the court ultimately based its ruling upon the Second Amendment claim, they did briefly touch on the equal-protection claim, citing to the Massachusetts Supreme Judicial Court holding in Finch v. Commonwealth Health Ins. Connector Auth., 959 N.E.2d 970, 984 (Mass. 2012), for the broad proposition that “extending fundamental rights to citizens but not to lawful permanent resident aliens would present state equal protection problems subject to strict scrutiny.”


One final note of interest for future cases is the fact that, while the issue raised in Fletcher was only the issuance of firearm identification cards, the final judgment order enjoined enforcement of any citizenship limitation in the issuance of any firearms permits:


Enforcement of Massachusetts General Laws chapter 140, sections 121–131P against Plaintiffs solely on the basis of their permanent resident alien status is declared to be in violation of the Second Amendment to the United States Constitution and the Defendants are hereby enjoined from denying Plaintiffs Fletcher and Pryal any firearm permits or licenses on that basis.


This broad statement not only invalidates the citizenship limitation on the issuance of firearms identification cards for purchase and in-the-home possession but also for the issuance of Class A and Class B carry permits under M.G.L.A. 140 § 131(d)(v).


Keywords: Second Amendment, scope of fundamental rights, equal protection, permanent resident aliens


— John Pierce


 

March 8, 2012

Federal Court Finds Second Amendment Applies Outside the Home


A federal district court partially struck down Maryland’s handgun regulation statute on March 2, 2012, in Woollard v. Sheridan, No. 10-02068 (D. Md. Mar. 2, 2012).


Plaintiffs Raymond Woollard and the non-profit organization, Second Amendment Foundation, filed the lawsuit in July 2010 after he was denied a permit to carry a firearm outside of his home. The suit challenged Maryland’s permit scheme on the grounds that it facially violated the Second Amendment and the equal-protection clause of the Fourteenth Amendment because it required, among other things, that the secretary of the state police determine whether the applicant has “good and substantial” cause to wear, carry, or transport a handgun.


The case required the court to address two important questions: (1) whether the Second Amendment’s protections extend outside the home, and (2) whether the requirement concerning “good and substantial” reason was constitutional.


Relying on United States v. Masciandaro, 638 F.3d 458 (4th Cir. 2011), the court found that the burden was on the government to prove that a substantial government interest was furthered by the permit scheme. The court found that the government failed to meet that burden because Woollard’s asserted right, i.e., the right of a law-abiding citizen to carry a firearm outside the home for self-defense purposes, was deserving of intermediate scrutiny because it was “non-core” but still protected Second Amendment activity. The opinion also set forth the idea that the right to bear arms is not limited to the home, and reasoned that it could not be because the Second Amendment also protects the militia and hunting, and neither of these is a homebound activity.


Under the application of intermediate scrutiny, the court determined that Maryland’s statute failed because it was overbroad. Though the court agreed that public safety is undoubtedly an important governmental interest, the statute did not “advance the interests of public safety by ensuring that guns are kept out of the hands of those adjudged most likely to misuse them, such as criminals or the mentally ill.” Instead, the court determined that the Maryland statute merely served as a rationing system and was therefore not tailored to the problem it was supposed to address. The court also noted that “[a] citizen may not be required to offer a ‘good and substantial reason’ why he should be permitted to exercise his rights. The right’s existence is all the reason he needs.”


The court declined to address the equal-protection claim because it was essentially a rehash of the Second Amendment claim, and the Second Amendment claim provided an adequate basis for resolution of the case.


The case will likely be appealed to the Fourth Circuit, and may possibly end up being the case that the Supreme Court finally decides to review and address the “in the home” issue that seems to be plaguing Second Amendment jurisprudence since its opinion in District of Columbia v. Heller, 554 U.S. 570 (2008), which held that held that the Second Amendment conferred an individual right to keep and bear arms.


Keywords: civil rights litigation, Second Amendment, equal protection


— Bobbie K. Ross, Michel & Associates, P.C., Long Beach, CA


 

February 17, 2012

Ninth Circuit Strikes Down Proposition 8


The decision by the Ninth Circuit Court of Appeals in Perry v. Brown on February 7, 2012, voided on federal constitutional grounds the results of the state ballot initiative that had retracted marriage rights from same-sex couples in California.


The court validated the singular importance of marriage as a venerated, easily understood, resonant institution (citing texts authored by Shakespeare, Abraham Lincoln, and Groucho Marx, amongst others). Other marriage-equality cases around the country will surely reference the Perry court's extensive explication of the legal and social significance of this civil institution.


Read the full case note.


Hayley Gorenberg, Lambda Legal, New York, NY


 

January 24, 2012

Supreme Court Rules GPS Tracking Requires Warrant


On Monday, January 23, 2012, the Supreme Court released its opinion in United States v. Jones, the Court’s first look at global positioning system (GPS) tracking and the Fourth Amendment. At issue was the government’s use of a GPS device to track the movements of a suspected drug dealer, Antoine Jones. The government secretly attached the GPS device, without warrant, to Jones’ Jeep Grand Cherokee. The government then tracked the vehicle’s movements over four weeks and gathered 2,000 pages of location data. The information obtained in the search was subsequently used to secure an indictment against Jones.


Ultimately, Jones fared better than the Court’s jurisprudence. While the justices all agreed that the government had violated the Antoine Jones’s Fourth Amendment rights, they were sharply divided as to why.


Read the full case note.


Keywords: civil rights litigation, Fourth Amendment, Privacy, GPS


Mark K. Stansbury, The Stansbury Law Firm, Columbus, OH


 

January 23, 2012

Subpoenaed Tweets


The American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation have filed an appeal in a fight over Twitter user information. The government has issued subpoenas to Twitter and other web companies in connection with its WikiLeaks investigation. U.S. District Judge Liam O’Grady has refused to unseal court orders and legal motions connected with the investigation.


ACLU staff attorney Aden Fine said that “This case is just one example of the unfortunate recent trend to make our court processes less open and transparent. Fine argues that “Secret court orders and secret court dockets should not be permitted, except in extraordinary circumstances.”


In a similar case, the ACLU is representing an individual who is battling a subpoena issued by a Boston prosecutor to Twitter seeking the user’s personal information. The user posted information that the ACLU classified as “publicly available information” about Boston police officers. The information was released following the ouster of Occupy Boston protestors. Over the ACLU’s objections, the judge held a secret hearing and sealed the record. The subpoena itself was quite broad, apparently seeking private information on anyone who used the #doxcok3 hash tag. (Hash tags are used to label tweets and make them more easily searchable.)


Twitter, for its part, has taken to opposing these types of information requests, and even notifying its users when a request for information has been made.

 


Keywords: civil rights litigation, Twitter, Privacy, ACLU


Mark K. Stansbury, The Stansbury Law Firm, a Columbus, Ohio, firm focused on the needs of startup companies in the technology sector.


 

December 5, 2011

Nordyke Goes En Banc . . . Again


On November 28, 2011, the Ninth Circuit Court of Appeals issued an extremely brief order that pulled the rug from under Second Amendment litigators practicing within its jurisdiction. The 57 word order granted rehearing en banc in Nordyke v. King, No. 07-15763, 2011 WL 5928130 (9th Cir. Nov. 28, 2011), and left everyone wondering two things: 1) Will the Nordyke case ever actually end? And, 2) will the Ninth Circuit ever make a firm decision on a standard of review to be applied in Second Amendment cases?


The Nordyke case involves a challenge to an Alameda County ordinance that bans firearms from county property, including the Alameda County fairgrounds. The case, which questions the validity of the ordinance on First and Second Amendment grounds, was brought by gun-show promoters Russell and Sallie Nordyke and others, and has been going on for approximately 12 years.


In 2009, the Ninth Circuit three-judge panel who heard the case held that the individual right to keep and bear arms applied to state and local officials as well as the federal government (i.e., the Ninth Circuit incorporated the Second Amendment before the Supreme Court did so in its landmark decision in McDonald v. City of Chicago, Ill., 130 S. Ct. 3020 (2010)), but it also held the Alameda ordinance constitutional.


That 2009 three-judge panel opinion incorporating the Second Amendment against the states was vacated when the Ninth Circuit decided to rehear the case en banc. That en banc rehearing was then stayed pending McDonald.


After the ruling in McDonald, the en banc court kicked the case back to the three-judge panel for further consideration, and the panel of three issued a ruling setting the “substantial burden” test for Second Amendment questions in the Ninth Circuit on May 2, 2011. The November 28, 2011, order makes Nordyke one of the few cases to garner en banc review more than once.


Oral arguments are set to take place before the rehearing en banc panel during the week of March 19, 2012, but an exact date has not yet been set. Second Amendment litigators in the Ninth Circuit can only hope that Nordyke, and the standard-of-review question, will finally be laid to rest after that hearing and subsequent opinion.


Keywords: civil rights litigation, Second Amendment, gun rights


— Bobbie K. Ross, Michel & Associates, P.C., Long Beach, CA


 

November 16, 2011

Facebook and FTC Near Deal on Privacy


The Wall Street Journal and New York Times report that Facebook is nearing a deal with the Federal Trade Commission (FTC) over allegations of deceptive trade practices. In late 2009, Facebook changed its privacy settings. This resulted in the release of previously secret user information such as profile pictures, gender, and current city. The FTC received a number of complaints and launched an investigation. The FTC proposed settlement will mark the end of that process.


The proposed settlement would require Facebook to submit to 20 years of privacy audits by an independent investigator. It would also require Facebook to get user permission before making any “material retroactive changes” to its privacy policy or to the information that it shares publicly.


This settlement with Facebook follows recent FTC settlements with Google and Twitter over their own privacy blunders. Google also submitted to 20 years of privacy audits as a result of its deceptive use of user information in connection with its Google Buzz service. And Twitter agreed to 10 years after a large number of users’ profiles were hacked.


These settlements reflect an increased focus by the FTC on online-privacy issues. The FTC has laid claim to privacy enforcement under the theory that it constitutes an unfair or deceptive trade practice, and therefore falls under the jurisdiction of the FTC. Congress has also started looking hard at privacy matters, with over 12 privacy-related bills introduced this year alone. Even the president—who was himself perhaps the most high-profile victim in the Twitter hacking debacle—has called for “a privacy bill of rights.”


In light of this increased scrutiny, Lisa Sotto, a partner at Hunton & Williams, advises “Companies would be wise to pay attention to this trend and implement privacy programs that include comprehensive assessments of their privacy practices.”


Facebook initially resisted an agreement to 20 years of audits, fighting instead for just five years. However, a rumored Facebook initial public offering in 2012 may have pushed the company to put the FTC dispute to rest. The company nonetheless continues to grapple with European officials over similar privacy concerns raised under German law.


Mark Stansbury, The Stansbury Law Firm, LLC, Columbus, OH


 

November 9, 2011

Supreme Court Hears Oral Argument in GPS Tracking Case


In an era of constant and ubiquitous technology, it should be no surprise that law enforcement wants in on it, too. Today, the U.S. Supreme Court heard arguments in the case of Antoine Jones, who was convicted in 2008 of conspiracy to distribute drugs. In the case, the prosecution relied on evidence procured by a joint FBI-Washington D.C. Metropolitan Police task force; after investigating Jones unsuccessfully, they surreptitiously installed a GPS device on his car. Every time the car moved, the FBI tracked Jones’s movement by satellite—every 10 seconds, 24 hours a day, for 28 days. The tracking led to Jones’s arrest and he was subsequently convicted. However, a panel of judges on the Court of Appeals for the District of Columbia Circuit unanimously overturned the conviction, concluding that the warrantless tracking of the respondent’s car for such a long period violated the Fourth Amendment’s ban on unreasonable searches.


Read the full case note.


Hayley Gorenberg, Lambda Legal, New York, NY


 

FTC Finalizes Settlement with Company Charged with Improperly Securing Personal Information


On June 8, 2010, the Federal Trade Commission (FTC) announced that it has finalized its settlement with a national entertainment and restaurant chain, Dave & Buster’s, in connection with alleged exposure of credit- and debit-card information. According to the FTC, the company failed to take reasonable steps to secure the sensitive personal information of customers on its computer network, which allowed a hacker to access approximately 130,000 accounts and make several hundred thousand dollars in fraudulent credit- and debit-card charges. Specifically, the FTC alleged that the company failed to take sufficient measures to detect and prevent unauthorized access to the network; adequately restrict outside access to the network, including access by Dave & Buster’s service providers; monitor and filter outbound data traffic to identify and block the export of sensitive personal information without authorization; and use readily available security measures to limit access to its computer networks through wireless access points.


Under the settlement, the company will (i) establish and maintain a program designed to protect its customers’ personal information, (ii) obtain professional third-party audits every other year for 10 years, and (iii) establish and maintain certain record-keeping requirements to allow the FTC to monitor compliance.

 


 

Proposed Federal Anti-SLAPP Legislation under Consideration in Congress


On December 16, 2009, U.S. Representatives Steve Cohen (D-TN) and Charlie Gonzalez (D-TX) introduced H.R. 4364, the “Citizen Participation Act of 2009.” The bill was referred to the House Committee on the Judiciary and later referred to the Subcommittee on Courts and Competition Policy on April 26, 2010. The proposed legislation seeks to “protect First Amendment rights of petition and free speech” by making it more difficult to bring lawsuits known as “Strategic Lawsuits Against Public Participation,” or SLAPPs.


SLAPPs refer to actions, often defamation claims, brought by businesses or government officials to retaliate against speech by individual defendants critical of the claimant and to otherwise intimidate such defendants and dissuade further criticism. Currently, 28 states have anti-SLAPP laws, which vary in their provisions and the protections offered. The proposed federal legislation is modeled primarily on California’s strong anti-SLAPP statute. Although SLAPPs have existed for decades, the perceived need for federal legislation has increased due to the recent spike in lawsuits brought largely against defendants engaging in speech on the Internet and, in turn, to the perceived threat these lawsuits pose to defendants’ First Amendment rights.


If enacted, the bill would create the first federal anti-SLAPP law and would protect speech on issues of public interest and petitions to the government by providing for procedural safeguards against SLAPPs, including: (i) removal of such suits to federal court, providing for a special, early motion to dismiss (on First Amendment grounds), (ii) a stay of discovery pending the court’s decision, and (iii)  the recovery of attorney fees. The bill would also provide for qualified immunity in petitions to the government by applying the standard for protected speech concerning public figures set forth in New York Times Co. v. Sullivan, 376 U.S. 254 (1964) to any communication with the government, and would allow defendants to raise the qualified-immunity defense against both federal and state law claims.


 

Arizona Civil Rights Groups File Class-Action Lawsuit to Enjoin Enforcement of Immigration Law


On May 17, 2010, several public-interest groups and 10 individual plaintiffs filed suit in the U.S. District Court for the District of Arizona against all 15 Arizona county attorneys and sheriffs seeking that the court declare Arizona Senate Bill 1070, as amended by House Bill 2162 (SB 1070), unconstitutional and enjoin defendants from enforcing the law. Friendly House et al. v. Whiting, No. CV 10-1061 (D. Ariz. filed May 17, 2010). In an effort to identify and remove illegal aliens found in Arizona, SB 1070 proscribes new and controversial measures for law-enforcement agencies to undertake.


In the suit, the plaintiffs allege that SB 1070 (1) attempts to bypass federal immigration law and violates the supremacy clause, Article IV, section 2, of the U.S. Constitution; (2) violates the Fourteenth Amendment because it was enacted with the purpose and intent to discriminate against racial and national-origin minorities and violates individuals’ due-process rights and the right to travel; (3) violates the First Amendment because law enforcement is forced to make determinations of immigration status based on individuals’ speech; and (4) violates the Fourth Amendment by subjecting individuals to unreasonable searches and seizures. The plaintiffs also allege that SB 1070 violates the Arizona constitution and 42 U.S.C. § 1981.


Presently, there are two other related lawsuits alleging similar violations pending in the same court. The first was brought by a 15-year veteran of the Tucson Police Department against Arizona’s governor and attorney general as well as the city of Tucson and the Pima County Attorney. The second was brought by the National Coalition of Latino Clergy and nine individual plaintiffs against the state of Arizona. The U.S. Department of Justice also is considering whether to challenge SB 10

 

FTC States Failure to Prevent Information Shared on P2P Networks May Violate the Gramm-Leach-Bliley Act and FTC Act


Earlier this year, the Federal Trade Commission (FTC) announced that it has notified almost 100 organizations that personal information, including sensitive customer and employee data, stored on internal computer networks has been shared and made available to users on peer-to-peer (P2P) file-sharing networks and that such information may be used to facilitate identity theft or fraud. The FTC advised that the failure to prevent the sharing of such information may violate the Gramm-Leach-Bliley Act and the FTC Act, and the FTC has opened non-public investigations of companies whose customer or employee information may have been shared on P2P networks.



 

Bill Exempting Institutions from Providing Certain Privacy Notices under Gramm-Leach-Bliley Passes House

 

On April 14, 2010, the U.S. House of Representatives passed the Eliminate Privacy Notice Confusion Act (H.R. 3506), a bill that would exempt financial institutions that have not changed their policies pertaining to nonpublic personal consumer information or shared a customer’s financial information from the annual privacy notice update requirements of the Gramm-Leach-Bliley Act. Currently, financial institutions must provide annual privacy notices even if there has been no change since the last disclosure. The bill would not alter the privacy notices required when a consumer initially opens an account.

 

» Read the bill

 

FINRA Fines Company for Inadequate Customer Information Safeguards


On April 12, 2010, the Financial Industry Regulatory Authority (FINRA) announced that it has fined D.A. Davidson & Co. $375,000 for allegedly failing to adequately safeguard confidential customer information. In December 2007, a hacker accessed and downloaded the company’s online database containing the confidential information of approximately 192,000 customers. The compromised information included, among other things, customer account numbers, Social Security numbers, names, addresses, and birth dates. To date, no misuse of the information has been reported.

 

» Read the press release