Attorney fees awards in favor of a defendant are not an abuse of discretion where the plaintiff does not make a prima facie case of his claims.

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Carl Frederick Rickert, III v. Kayla S. Meade and City of Bonham, 06-02-00002-CV (Tex. App.—Texarkana, July 30) (mem. op.).

In this § 1983 case on an attorney fees award, the Court of Appeals upheld the trial court’s grant of attorney fees in favor of the defendant City because the plaintiff did not establish even a prima facie case.

The plaintiff was terminated from his City employment after a co-worker filed a sexual harassment claim against him based on an allegedly consensual relationship.  The Texas Workforce Commission determined that the sexual harassment claim against the plaintiff was baseless.  The plaintiff sued the City under § 1983 asserting entitlement to a name clearing hearing.  The trial court dismissed the claim for lack of evidence and awarded attorney’s fees to the City.  The plaintiff appealed the attorney fee award.

In order for an attorney fee award to be upheld against a plaintiff in favor of a defendant, it has to be shown that “the plaintiff’s action was frivolous, unreasonable, or without foundation even though not brought in subjective bad faith.”  Hughes v. Rowe, 449 U.S. 5, 14 (1980) (per curiam) (quoting Christiansburg, 434 U.S. at 421).  The plaintiff’s action was based on the lack of a name clearing hearing after his termination.  A terminated individual has the right to a name clearing hearing where the employee’s “good name, reputation, honor, or integrity” is questioned during a termination.  Bledsoe v. City of Horn Lake, Miss., 449 F.3d 650, 653 (5th Cir. 2006) In this case, the plaintiff provided no evidence that he was denied a name clearing hearing, or that he even requested one. Evidence was presented that he was provided a chance to be heard at a hearing prior to termination.  The Court of Appeals held this lack of evidence was sufficient to show that the trial court did not abuse its discretion.

If you would like to read this opinion click here. Panel consists of Chief Justice Morriss and Justices Burgess and Stevens.  Opinion by Ralph K. Burgess.

U.S. 5th Circuit holds a board reprimand against an elected official for speech on a matter of public concern is an actionable First Amendment claim under § 1983.

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Wilson v. Houston Community College System, 19-20237 (U.S. 5th Cir. April 7, 2020)

This is a First Amendment/§1983 case where a former member of the board of trustees claimed the College censured him in violation of his First Amendment Rights. The U.S. Fifth Circuit Court of Appeals reinstated the plaintiff’s First Amendment claims but sustained the dismissal of his declaratory and injunction claim.

Houston Community College System (“HCC”) is a public college system in the Houston area. HCC is controlled by a board of nine publicly elected trustees, one of whom was Wilson. Wilson publicly chastised HCC on various occasions for its policy decisions and even filed multiple state court lawsuits including one to prohibit videoconferencing votes as being illegal under the bylaws and in excluding him from meetings. The Board of Trustees held a hearing and issued a censure resolution which  chastised Wilson for acting in a manner “not consistent with the best interests of the College or the Board, and in violation of the Board Bylaws Code of Conduct.” The censure, the Board emphasized, was the “highest level of sanction available,” as Wilson was elected and could not be removed. Once censured, Wilson brought §1983 claims under the First Amendment, including declaratory and injunctive relief. The trial court granted HCC’s motion to dismiss under Rule 12(b)(1) for lack of jurisdiction due to a non-distinct injury. In August 2019, Wilson resigned. He was not re-elected.

In the context of free speech, “the governmental action need not have a direct effect on the exercise of First Amendment rights . . . [but] must have caused or must threaten to cause a direct injury to the plaintiffs.” The trial court held the censure did not forbid Wilson from performing his official duties or speaking publicly. Disagreeing with the trial court, the 5th Circuit held  Wilson’s allegation of retaliatory censure is enough to establish an injury in fact.  Further, a free speech violation giving rise to a reputational injury is an injury in fact and properly states First Amendment standing. However, Wilson’s claims for declaratory and injunctive relief regarding the application of the Board’s censure and Code of Conduct are moot given they are no longer live controversies.

If you would like to read this opinion click here. Panel consists of Justices Davis, Smith and Stewart. Opinion by Justice Stewart.

BOA appeal deadline of 10 days applies to Open Meetings, declaratory judgment, and as-applied constitutional claims, holds Dallas Court of Appeals

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Tejas Motel, LLC v City of Mesquite, by and through its Board of Adjustment, 05-19-00667-CV (Tex. Civ. App. – Dallas, June 4, 2020).

This is an appeal from a Board of Adjustment decision regarding non-conforming status in which the Dallas Court of Appeals affirmed the granting of the City’s plea to the jurisdiction.

The City of Mesquite had two zoning categories of lodging facilities within the City and placed conditions on their uses — Limited Services and General Services, neither of which Tejas Motel (“Tejas”) qualified under. Although the Tejas Motel had been nonconforming since 1997, the City did not specifically address that nonconformance until 2018, when the City passed an ordinance changing the manner in which the City’s Board of Adjustment could amortize nonconforming properties. The BOA held public hearings and scheduled a date for all non-conforming properties to become compliant, including Tejas. The City introduced evidence that the nonconforming use would adversely affect nearby properties.  Tejas then announced an agreement for a May 1, 2019 compliance date and the BOA approved that as a compliance date. Tejas, however, denied receiving a written copy after the BOA decision, which the BOA insists was mailed. Tejas then sued the BOA to invalidate the compliance date. The City filed a plea to the jurisdiction, which was granted.

The requirement that one timely file a petition for writ of certiorari to challenge a zoning board decision is part of an administrative remedy, which is provided by the Texas Local Government Code and must be exhausted before board decisions may be challenged in court. Under Tex. Loc. Gov’t Code §211.011 Tejas had ten days from the date the decision was filed to challenge the decision. The Board’s July 31 written “Decision and Order” triggered the statutory deadline. Tejas did not file by the deadline, thereby precluding the court from obtaining jurisdiction. This included challenges brought under the Texas Open Meetings Act, declaratory judgment claim and as-applied constitutional challenges.  Tejas also failed to state any viable federal claims. Although a city is not immune from federal constitutional claims, a trial court may grant a plea to the jurisdiction if a constitutional claim is not viable. Tejas had no constitutionally protected, vested due process interest in continuing to use the property in violation of the city’s ordinances, especially when it acquired the property knowing the restrictions.  As a result, the plea was properly granted.

If you would like to read this opinion, click here. The panel consists of Justices Molberg, Carlyle, and Evans.  Memorandum Opinion by Justice Carlyle.

Possible suspension of officer’s license does not toll the statute of limitations for Sec. 1983 claims against an officer

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Haule  v.  Travis County and Spinner, No.  03-19-00250-CV (Tex.App.–Austin May 28, 2020) (mem. op.).

[Special guest summary author Laura Mueller, City Attorney for Dripping Springs, Texas]

This case involves claims under §1983 and state law claims based on Haule’s attempt to report a crime to Travis County Officer Michael Spinner.  The court of appeals held that the statute of limitations had run against all of Haule’s claims.

Haule attempted to file a criminal complaint against the Caldwell County District Attorney based on a previous prosecution.  She called the Travis County Sheriff’s Office, claiming that the District Attorney had told her that he would put her in jail if she complained to the State Bar of Texas.  The Sheriff’s Office sent Officer Spinner to take her statement.  In his report, Officer Spinner referred to Haule as potentially mentally ill and intoxicated.  After Haule complained about Officer Spinner’s report, the Sheriff’s Office responded to Haule’s complaint in a letter stating that: (1) her claim was not sustained; (2) that the Travis County Sheriff’s Office did not have authority over the Caldwell County District Attorney; and (3) that she should contact the Caldwell County Sheriff’s Office or the Attorney General’s Office.  Seven years after receiving the letter from Travis County, Haule filed suit in Travis County District Court, alleging Section 1983 claims and general state law claims that appeared to include negligence, fraud, malicious prosecution, and defamation against Travis County and Officer Spinner.  The County filed a motion for summary judgment that the claims were frivolous, and the district court granted the motion.  Haule appealed.

The court of appeals reviewed all of the claims under each statute of limitations to determine whether any of the claims, even if substantiated, remained viable.  The court first discussed Haule’s briefing and noted that it was unclear that Haule’s claims were able to be pursued.  However, based on the information provided, the court reviewed the statute of limitations for §1983 claims, fraud, defamation, and others and determined that all of the statute of limitations had passed.  Haule argued that the statute limitations should be tolled because: (1) the report stating that she was mentally ill and/or intoxicated was “ongoing” and (2) Officer Spinner’s license was suspended during the period in question.   The court stated that the report was not ongoing and that even if Officer Spinner’s license had been suspended, it would not toll the statute of limitations. The district court’s judgment was affirmed.

If you would like to read this opinion, click here. The panel consists of Chief Justice Rose, Justices Baker and Triana.

U.S. 5th Circuit holds statute of limitations was not jurisdictional, but trial judge should have reviewed matters raised at pretrial hearing under MSJ standards and dismissed the claims

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Bradley v. Sheriff’s Department St. Landry Parish, 18-30600, (US 5th Cir – May 7, 2020)

This is a §1983/malicious prosecution case where the U.S. 5th Circuit dismissed a defendant’s claims against the law enforcement and related officials who prosecuted him.

Bradley was arrested and charged with conspiracy to commit armed robbery.  He was arrested and housed in the St. Landry Parish Jail, then released that same day on bond.  After being released, he was detained in another jurisdiction under an unrelated offense. While under this second incarceration, he was transported back to the  St. Landry facility for one night so he could attend a hearing related to the conspiracy charge. He was later tried by a jury and acquitted four years later. Bradley sued the St. Landry Parish Sheriff’s Department and related officers alleging malicious prosecution, wrongful arrest and wrongful detention. The magistrate, sitting by consent, found he lacked jurisdiction to hear the civil suit and dismissed the claims based on the statute of limitations.

The U.S. 5th Circuit held the magistrate judge erred in concluding that, if Bradley’s § 1983 claims were barred by limitations, subject-matter jurisdiction over those claims was lacking. Section 1983 provides a federal cause of action but does not contain an express limitations period. The Supreme Court directs trial courts to look to state law personal injury claims for the limitations.  The court held that statutes of limitations of this nature are procedural, not jurisdictional.  However, while the magistrate may have had jurisdiction, the defendants raised the limitations defense in their pretrial order submission.  As a result, prior to going to trial, it was required for the trial judge to evaluate the claims under a summary judgment standard (noting the magistrate gave the parties notice and an opportunity to respond to his inquiry on limitations).  When a cause of action under § 1983 accrues is a question of federal law. For a false imprisonment claim, the accrual date begins when the imprisonment ceases. In Bradley’s case, the day as his arrest is the accrual date. Bradley’s wrongful arrest claim is barred by limitations, even if he contends that damages flowed from that false arrest until he was found not guilty.  Bradley’s brief does not cite decisions regarding limitations for post-process pretrial detention claims. As a result, the wrongful detention claims also were filed outside the limitations’ period. Since Bradley points to no concealment of fact, no tolling of the limitations applies. Suits brought under § 1983 require the deprivation of a right guaranteed under the United States Constitution.  The magistrate held that “[t]here is no constitutional right to be free from malicious prosecution,” and therefore Bradley “ha[d] no such federal claim.”  The court recognized that a malicious prosecution claim could be viable if it is linked to a specific constitutional right. However, Bradley does not articulate any such right or any link. Simply asserting he has a constitutional right to be free of malicious prosecution under the 5th and 14th Amendments are all conclusory assertions devoid of any specifics. Such is insufficient to establish a claim. Further, Bradley inadequately briefed his “malicious prosecution” claim.  In essence, the 5th Circuit held the trial court had jurisdiction but should have looked at the claims under a summary judgment standard, in which case, all federal claims would be dismissed.

If you would like to read this opinion, click here. The panel consists of Chief Justice Owen, Justices Clement and Ho.

U.S. 5th Circuit adopts 1st Amendment unbridled discretion/prior-restraint standards in federal suit against Texas Governor

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Freedom from Religion Foundation, Inc. v. Greg Abbott Governor of the State of Texas, 18-50610, (5th Cir – April 3, 2020)

This is a First Amendment case regarding immunity and viewpoint discrimination where the U.S. 5th Circuit adopted a specific prior restraint test.

The Texas State Preservation Board (“the Board”) is a state agency that preserves and maintains the Texas Capitol and its grounds. Governor Abbott is the chairman of the Board, which allows private citizens to display exhibits within the Texas Capitol building. Such displays must have a public purpose. FFRF is a non-profit organization that advocates for the separation of church and state and educates on matters of nontheism. FFRF learned that a Christian nativity scene had been approved by the Board and displayed in the Texas State Capitol. FFRF submitted an application to the Board regarding a Bill of Rights nativity exhibit, which was also approved. FFRF’s depiction was displayed, but the day before its final display date, Governor Abbott sent a letter to then Executive Director of the Board, Mr. Welch, urging him to “remove this display from the Capitol immediately.” The letter explained that the exhibit was inappropriate for display because “[s]ubjecting an image held sacred by millions of Texans to the Foundation’s tasteless sarcasm does nothing to promote the morals and the general welfare,” “the exhibit promotes ignorance and falsehood insofar as it suggests that George Washington, Benjamin Franklin, and Thomas Jefferson worshipped (or would worship) the bill of rights in the place of Jesus[.]”  This letter resulted in the removal of the FFRF display prior to its scheduled removal date. When FFRF submitted another application for the same display, it was told the display did not promote a public purpose. FFRF sued for declaratory and injunctive relief.  The district court granted FFRF summary judgment on certain grounds and denied it on others.  The parties appealed/cross-appealed.

Governor Abbott and Mr. Welsh argue that the district court’s declaratory judgment is retrospective and therefore barred by sovereign immunity (including 11th  Amendment immunity). They further asserted no prospective relief was proper because the dispute is not ongoing. A litigant may sue a state official in his official capacity in federal court as long as the lawsuit seeks prospective relief to redress an ongoing violation of federal law. FFRF alleged constitutional violations against Abbott and Welsh in their official capacities. Further, they established an ongoing violation and Abbott and Welsh did not technically appeal the viewpoint discrimination finding. Speech cannot be prohibited on the basis of offensiveness, and the defendants have only presented arguments through counsel that their behavior will change.  The district court had jurisdiction to entertain the suit, and the controversy is ongoing.  The district court did not, however, have jurisdiction to award FFRF purely retrospective relief.  The declaration that FFRF’s rights were violated in the past is prohibited to the extent it is an individual claim. The U.S. 5th Circuit remanded for the trial court to determine proper prospective relief.  Next, the court analyzed the unbridled discretion arguments regarding public purpose determinations (i.e. prior restraint arguments). Unbridled discretion runs afoul of the First Amendment because it risks self-censorship and creates proof problems in as-applied challenges. Even in limited and nonpublic forums, investing governmental officials with boundless discretion over access to the forum violates the First Amendment. However, in situations such as where space is limited, certain discretion should be afforded. Because discretionary access is a defining characteristic of a limited public forum, the government should be afforded more discretion to use prior restraints on speech in limited public forums than in traditional public forums. The possibility (including imposed checks and balances) of viewpoint discrimination is key to deciding unbridled discretion claims in the context of limited or nonpublic forums. A reasonableness test would be insufficient, by itself.  In a matter of first impression for the 5th Circuit, the court held that prior restraints on speech in limited public forums must contain neutral criteria sufficient to prevent (1) censorship that is unreasonable in light of the purpose served by the forum and (2) viewpoint-based censorship. Because the district court only considered whether the public purpose criteria at issue in this case was reasonable, the issue was remanded.

If you would like to read this opinion click here. Panel consists of Davis, Graves, and Higginson, Circuit Judges. Vacated and Remanded in part; Reversed and Remanded in part. Memorandum Opinion by Higginson, Circuit Judge. Attorney for Appellant is Kyle Douglas Hawkins, of Austin, Texas. Attorney for Appellee is Samuel Troxell Grover, of Madison, Wisconsin.

 

14th Court of Appeals reverses jury award in excessive force case against County, but upholds portion against deputy

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Harris County, et al, v Coats, et.al, 14-17-00732-CV, (Tex. App. — Houston [14th Dist.], February 6, 2020)

This is a § 1983/wrongful death case where the 14th Court of Appeals reversed in part a jury award against the County and its deputy. [Comment: this is a 49-page opinion].

Jamail and his girlfriend were using cocaine when Jamail felt ill.  Jamail exited through a window and called 9-1-1 from a public phone. However, when the EMTs arrived, Jamail ran from the area to a nearby Burger King. Deputy Saintes arrived after a disturbance call, handcuffed Jamail and walked him to the ambulance. When they neared the ambulance, Jamail became combative and attempted to run. Multiple deputies arrived and assisted Saints to subdue Jamail. EMTs gave Jamail an injection of a sedative. Jamail was seen breathing normally. The parties dispute whether Deputy Vailes’ boot was on Jamail’s nose and mouth at the time.  However, after a short while, he could not be roused. He was transported to a nearby hospital where he died. The family sued. Multiple individuals and parties settled out or were dismissed based on immunity.  A jury trial was held against the County and Deputy Vailes. The jury found for Jamail’s family. The County and Deputy Vailes appealed.

The court first determined no policy, custom, or practice of the County existed to establish § 1983 liability on the entity. Normally, single incidents cannot create a policy, custom, or practice. As far as constable’s go, the fact a constable’s jurisdictional reach is throughout the county does not support the trial court’s conclusion that the Precinct Four Constable is a law enforcement final policymaker for Harris County. Jamail’s burden was to identify a final policymaker who speaks on law enforcement matters for the local government unit at issue—Harris County, not simply a precinct.  As to Deputy Vailes, the court held some evidence existed that Deputy Vailes placed his boot on Jamail’s face when he was already handcuffed. The law was sufficiently clear that every reasonable official would understand (as did those who testified) that stepping on the nose and mouth of someone who is lying on the ground, likely sedated, handcuffed, and unresponsive, with enough force that the person’s neck touches the ground, would constitute an excessive-force violation. Therefore, Vailes was not entitled to qualified immunity on that claim. However, the evidence was insufficient Vailes’ actions caused Jamail’s death.  Deputy Vailes argues that Jamail died because of acute cocaine toxicity, as the medical examiner concluded following Jamail’s autopsy. In cases alleging medical injury or death, expert testimony regarding causation is generally the norm and Jamail’s family did not produce any regarding the cause of death.  The fact Vailes’ boot was placed on Jamail, when he was already non-responsive is insufficient to justify the jury award against Vailes as to Jamail’s death. Because of the alterations to the judgment, the court remanded for a reconsideration of the attorney fee award.

If you would like to read this opinion click here. Panel consists of Justice Christopher Justice Wise, and Justice Jewel. Opinion by Justice Jewel.

Supervisor entitled to qualified immunity as to one suspended employees 1st Amendment claim but not the other

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Benfield v. Magee, 18-30932, (U.S. 5th Cir. December 17, 2019)

This is a First Amendment in employment action where the U.S. 5th Circuit reversed the denial of the individual supervisor’s qualified immunity defense and dismissed the claims as to one employee, but not the other.

Warren and Benfield worked in Louisiana as paramedics for the Desoto Parish Emergency Medical Services. Louisiana paramedics must complete annual recertification training, which required the approval of the medical director. Warren asserts he suggested changes to the procedures manual which would prevent Magee, their supervisor, from electronically signing in lieu of the medical director. Warren asserts afterward Magee harassed him (including criticizing Warren’s religious beliefs, denying him a promotion, accusing him of inappropriate relationships.)  When a new co-medical director inquired into the Plaintiff’s recertification, they blamed Magee for telling them to electronically falsify the records. Magee suspended Warren and Benfield for falsification.   Warren and Benfield sued Magee directly, claiming that he suspended them for exercising their First Amendment free-speech and free-association rights.  The trial court denied Magee’s assertion of qualified immunity and he appealed.

Warren’s letter of changes to the procedure’s manual occurred 19 months prior to his suspension. And while a plaintiff can establish a causal connection with other inferences, Warren’s allegations do virtually nothing to establish a chronology or relationship. He states that this harassment occurred sometime after the June 2015 letter, yet provides no further specificity.  Warran would be unable to overcome the qualified immunity defense without stating with specificity when he was harassed.  As a result, his assertions are insufficient to establish a causal connection and such claims are dismissed. However, Magee made no substantive argument for dismissing Benfield’s free-speech claim, believing Benfield raised only a freedom of association claim. As a result, the denial was proper as to Benfield.

If you would like to read this opinion click here. Panel consists of Justices Stewart, Clement and Ho.  Opinion by Justice Clement. The attorney listed for Magee is Edwin H. Byrd.  The attorney listed for Warren and Benfield is Bryce J. Denny.

U.S 5th Circuit holds Plaintiffs had a duty of diligence to inquire about the status of their case – emails mistakenly going to a spam folder was not excusable neglect

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Trevino v City of Fort Worth, 19-10414 (U.S. 5th Cir. December 10, 2019)

This is a custodial death case brought under 42 U.S.C. § 1983.  However, the opinion is one of procedure and excusable neglect in not responding to a motion.

City police stopped Alfredo Cortez and his girlfriend Alisha Trevino for an inoperable brake light. Trevino ingested two baggies of methamphetamine that she had hidden in her pants before the officers could view her in the car. She died later that night. Plaintiffs filed suit against the City and the officers involved in Trevino’s arrest. The officers were dismissed.  The City then filed a motion to dismiss to which the Plaintiffs did not respond, citing computer difficulties in receiving court notices. After the motion was granted Plaintiffs filed a motion for new trial which was denied. Plaintiffs appealed.

Plaintiffs’ counsel failed to register with the court’s electronic filing system, in violation of local rules, which is why he did not receive the notice. The Plaintiffs also concede that the failure to file was within Plaintiffs’ counsel’s “reasonable control.”  Plaintiffs had a duty of diligence to inquire about the status of their case. The fact that the case was not on Plaintiffs’ counsel’s “radar for active cases” does not free Plaintiffs of this duty.  Failure to file a response to a motion to dismiss is not a manifest error of law or fact. Rule 60(b)(1) allows for relief from judgment for “mistake, inadvertence, surprise, or excusable neglect.” The Supreme Court has explained that the determination of what sorts of neglect will be considered excusable is “an equitable one, taking account of all relevant circumstances surrounding the party’s omission.”  However, “[g]ross carelessness, ignorance of the rules, or ignorance of the law are insufficient bases for 60(b)(1) relief.” In fact, a court would abuse its discretion if it were to reopen a case when the reason is one attributable solely to counsel’s carelessness.  Further, emails mistakenly going to a spam folder do not merit Rule 60(b) relief. Judgment affirmed.

If you would like to read this opinion click here. Panel consists of Chief Justice Owen, and Justices Southwick and Willett.  Per curiam opinion. The attorney listed for Trevino is Jeffrey M. Wise.  The attorney listed for the City is Lynn Winter.

U.S. 5th Circuit holds deputy entitled to qualified immunity on state-created-danger claims, but not wrongful arrest claims

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Keller v. Fleming, 18-60081(5th Cir. July 23, 2019)

In this §1983 case, the U.S. 5th Circuit reversed the denial of an officer’s qualified immunity defense for a state-created-danger claim but affirmed denial based on unlawful arrest claims.

Gerald Simpson was struck and killed by a motor vehicle as he walked along a Mississippi highway in darkness after Simpson had been dropped off at the county line by Sheriff’s Deputy Darrin Fleming.  Simpson was originally stopped while walking down the roadway, but his speech was unintelligible.  The Plaintiffs alleged Deputy Fleming acted pursuant to an Attala County custom of picking up those viewed as vagrants and dropping them off in neighboring jurisdictions to rid the county of vagrants. The submitted evidence establishes Deputy Fleming put Simpson in the backseat of his vehicle and asked him where he resided, but Simpson was unable to articulate where he lived and merely pointed west on Highway 12, in the direction of Durant, Mississippi. Fleming drove Simpson in that direction to the point he reached the end of Attala jurisdiction and let Simpson out.  Fleming was not aware Simpson had recently been released from a state hospital after twelve years of confinement for certain developmental disabilities, including a speech impediment. The family sued Fleming and the County and Fleming filed a motion for summary judgment arguing qualified immunity.  The motion was granted in part and denied in part. Fleming appealed.

The Fourth Amendment generally prohibits an officer from seizing and detaining an individual without “probable cause.” A police officer may approach a person for purposes of investigating possible criminal behavior (i.e. Terry stop). The court determined a reasonable person in Simpson’s position would not have felt free to leave. The transport was also not reasonable given the circumstances. The seizure was not for Terry stop purposes and was significantly more intrusive than a brief detention for identification or investigatory purposes.  It also was law previously established which Deputy Fleming should have known. As a result, it was proper to deny qualified immunity for the Fourth Amendment claim.

Next, for Fourteenth Amendment purposes, as a general matter, a State does not have an affirmative duty to protect an individual from violence by private actors. An exception exists in other circuits for a “state-created-danger” theory where the entity and plaintiff are in a special relationship. However, a “special relationship” only arises when a person is involuntarily confined or otherwise restrained against his will pursuant to a governmental order.  The law was not clearly defined at the time to allow Deputy Fleming to know it might apply. The Fifth Circuit has never recognized this “state-created-danger” exception. As a result, the Fourteenth Amendment claims should have been dismissed. Finally, Plaintiffs have not demonstrated a clearly established substantive due process right on the facts they allege.

If you would like to read this opinion click here. Panel consists of Chief Judge Stewar, Judges Willett and Dennis.  Opinion by Justice Dennis.

Eighth Amendment Excessive Fine Prohibition applicable to the states through 14th Amendment, says U.S. Supreme Court

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Timbs v Indiana, 17-1091 (U.S. February 20, 2019).

Tyson Timbs pleaded guilty to possession of a controlled substance and conspiracy to commit theft. At the time of his  arrest, police seized a vehicle Timbs had purchased for $42,000 with money he received from an insurance policy when his father died. The State sought civil forfeiture of the vehicle, the value of which was four times the maximum monetary fine for the offenses. The Indiana Supreme Court held that the Excessive Fines Clause constrains only federal action and is inapplicable to state impositions.

The Court held the prohibition in the Excessive Fines Clause carries forward protections found in sources from Magna Carta to the English Bill of Rights to state constitutions from the colonial era to the present day. Under the Eighth Amendment, “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Taken together, these clauses place “parallel limitations” on “the power of those entrusted with the criminal-law function of government.”  Indiana argued the clause does not apply to its use of civil in rem forfeitures because the clause’s specific application to such forfeitures is neither fundamental nor deeply rooted. However, the Court noted the trial court did not address the clause’s application to civil in rem forfeitures and the Indiana Supreme Court only held the Clause was inapplicable to the states through the 14th Amendment.  The Court held the 14th Amendment makes applicable the Excessive Fines Clause, and the Court declined to separate out whether it was for criminal or civil forfeiture purposes.

If you would like to read this opinion, click here. GINSBURG, J., delivered the opinion of the Court, in which ROBERTS, C. J., and BREYER, ALITO, SOTOMAYOR, KAGAN, GORSUCH, and KAVANAUGH, JJ., joined. GORSUCH, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in the judgment.

U.S. Supreme Court holds “clearly establish” prong of qualified immunity defense must not be defined with a high degree of generality

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City of Escondido v Emmons, 17-1660 (U.S. January 7, 2019)

City of Escondido police received a domestic violence 911 call from Maggie Emmons. Officer Jake Houchin responded to the scene and reported Emmons had sustained injuries caused by her husband. The officers arrested her husband. Several weeks later, another domestic violence call was placed, but this time it was called in by the mother of Emmon’s roommate, Douglas (who was not present at the apartment). Officer Houchin again responded. The body cameras revealed that when trying to gain entry, a man in the apartment also told Emmons to back away from the window and not let the officers in. Shortly afterward, a man exited the apartment and tried to move past the officers. Officer Craig stopped the man, took him quickly to the ground and handcuffed him. The video shows that the man was not in any visible or audible pain as a result of the takedown or while on the ground. He was arrested for a misdemeanor offense of resisting and delaying a police officer. The man turned out to be Emmons’s father, who sued for wrongful arrest.  The officers filed for qualified immunity, which the trial court granted but the U.S. 9th Circuit reversed.

The U.S. Supreme Court broke apart the 9th Circuit’s analysis and questioned the lack of reasoning within the opinion. The Ninth Circuit’s entire relevant analysis was simply, “The right to be free of excessive force was clearly established at the time of the events in question.”  The Supreme Court held that “with respect to Sergeant Toth, the Ninth Circuit offered no explanation for its decision. The court’s unexplained reinstatement of the excessive force claim against Sergeant Toth was erroneous—and quite puzzling in light of the District Court’s conclusion that ‘only Defendant Craig was involved in the excessive force claim’ and that Emmons ‘fail[ed] to identify contrary evidence.’”  The 9th Circuit erred, as the Supreme Court has repeatedly told courts the clearly established right must be defined with specificity. Courts may not define clearly established law at a high level of generality. “In this case, the Court of Appeals contravened those settled principles. The Court of Appeals should have asked whether clearly established law prohibited the officers from stopping and taking down a man in these circumstances.”  The opinion is reversed and remanded for further analysis.

If you would like to read this opinion, click here. Per Curiam opinion.

U.S. Supreme Court holds 1st Amendment retaliatory arrest claim barred because probable cause exists and plaintiff has no objective evidence of retaliatory motive

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Nieves, et al., v Bartlett, 17–1174 (May 28, 2019)

In this First Amendment/retaliatory arrest/§1983 case the U.S. Supreme Court held the presence of probable cause eliminates the First Amendment claims as a matter of law. [Comment: warning this is a 48-page set of opinions, concurrences and dissents].

Bartlett was arrested by police officers Nieves and Weight for disorderly conduct and resisting arrest during a winter sports festival in Alaska. During the event Nieves and Weight were separately speaking with individuals at the festival about various law enforcement aspects when Bartlett approached each and interfered with the questioning of patrons. Due to the fact Bartlett appeared intoxicated, after the second time Bartlett allegedly interfered, he was arrested. It was also during this second instance that Bartlett allegedly aggressively attempted to physically intimidate one officer by stepping into his personal space and yelling at him. Bartlett sued under 42 U. S. C. §1983, claiming that the officers violated his First Amendment rights by arresting him in retaliation for his speech.  The District Court granted summary judgment for the officers, holding that the existence of probable cause to arrest Bartlett precluded his claim. The U.S. Court of Appeals for the Ninth Circuit reversed and the officers appealed.

As a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions for engaging in protected speech.  It is not enough to show that an official acted with a retaliatory motive. The motive must cause the injury under a “but-for” analysis.  The analysis is complex as it is particularly difficult to determine whether the adverse government action was caused by the officer’s malice or the plaintiff ’s potentially criminal conduct.  Police officers conduct approximately 29,000 arrests every day—a dangerous task that requires making quick decisions in circumstances that are tense, uncertain, and rapidly evolving.  After a highly detailed analysis of common-law and current precedent, the Court concluded the proper test was an objective standard test, which is resolved if the officers had probable cause to make an arrest.  The subjective intent of the officers is therefore taken out of the analysis.  However, the Court adopted an exception for “minor” offenses which allows a plaintiff to present objective evidence others similarly situation for these minor offenses are not arrested.  Because there was probable cause to arrest Bartlett and he presented no objective evidence others in his situation were not, his retaliatory arrest claim fails as a matter of law.

If you would like to read this opinion click here. ROBERTS, C. J., delivered the opinion of the Court, in which BREYER, ALITO, KAGAN, and KAVANAUGH, JJ., joined, and in which THOMAS, J., joined except as to Part II–D. THOMAS, J., filed an opinion concurring in part and concurring in the judgment. GORSUCH, J., filed an opinion concurring in part and dissenting in part. GINSBURG, J., filed an opinion concurring in the judgment in part and dissenting in part. SOTOMAYOR, J., filed a dissenting opinion.

Mandamus action: Pre-suit discovery precluded as petitioner did not support the petition with evidence and trial court failed to issue mandatory findings

In Re: City of Tatum, Texas, 12-18-00285-CV (Tex. App. – Tyler, December 21, 2018)

This is a writ of mandamus original proceeding where the Tyler Court of Appeals conditionally granted the City’s relief and precluded a potential party from taking pre-suit depositions pursuant to Rule 202.

Peterson filed a petition for a pre-suit deposition of the police chief pursuant to Texas Rule of Civil Procedure 202. The grounds for the deposition are that Peterson asserts a Tatum police officer sexually assaulted her when the officer arrived in response to a call for assistance at the home. She alleged that the City knew the officer “exhibited indicators” of this type of behavior; negligently hired, trained, controlled, supervised, and monitored the officer; did not have a policy to prevent such behavior and she anticipated being a party to a lawsuit involving the City. The City objected.  The trial court signed an order allowing the deposition and the City filed this original mandamus proceeding.

Pre-suit discovery is not intended for routine use; it creates practical and due process problems because discovery demands are made of individuals or entities before they are told of the issues. Rule 202.4 states a trial court must order a pre-suit deposition to be taken only if it finds: (1) allowing the deposition may prevent a failure or delay of justice in an anticipated suit (to be used if the purpose is to collect evidence for a lawsuit )or (2) the likely benefit to investigate a potential claim outweighs the burden or expense of the procedure (to be used in order to investigate if a claim even exists). The verified statements in a Rule 202 petition are not considered competent evidence. Peterson presented no evidence to support possible claims to investigate or collect. That a party (i.e. City) may be in possession of evidence pertinent to the subject matter of the anticipated action or to the petitioner’s potential claims does not alleviate the petitioner of her burden of providing evidence to support a Rule 202 request for pre-suit depositions. Further, the order does not contain the findings required to make it a proper order. The Texas Supreme Court has made clear that Rule 202.4 findings cannot be implied from the record and the findings are mandatory. Because the requirements of Rule 202.4 are mandatory, the City’s failure to object in the trial court does not result in waiver. The court conditionally granted the writ and stated an unconditional writ will issue only if the trial court’s order is not corrected.

If you would like to read this opinion click here. Memorandum opinion by Justice Neeley. The attorney for the City is listed as Darren K. Coleman.  The attorney for Peterson is listed as Ron Adkison.

U.S. 5th Circuit holds promoter of sex convention had standing to sue after City passed ordinance banning convention

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Three Expo Events, LLC v City of Dallas, 17-10632 (5th Cir. October 24, 2018).

This is a First Amendment case involving a sex convention where the U.S. 5th  Circuit reversed an order granting the City’s motion to dismiss.

Three Expo Events, L.L.C. (Three Expo), produces adult love- and sex-themed conventions in major cities of the nation. It held just such a convention in 2015 at the Dallas Convention Center and planned to return in 2016. The 2015 convention, which hosted near nude and sexual activities, drew protesters, but the City originally took the position it could not constitutionally preclude the event in 2016. In preparation for the convention and consistent with its business model, Three Expo formed a local entity (Exotica Dallas) to enter into and hold the lease for the convention. However, the City then passed a resolution banning the event. Three Expo filed suit against the City in federal court and sought a preliminary injunction to prevent the City from enforcing the resolution. The district court denied Three Expo’s motion for a preliminary injunction, and no event took place in Dallas in 2016. However, Three Expo proceeded with the suit alleging violations of the First Amendment, the Equal Protection Clause, and the Bill of Attainder Clause. The City filed a motion to dismiss for lack of jurisdiction, which the trial court granted.  Three Expo appealed.

The panel first analyzed the record and determined the trial court make “clear mistakes of fact” in its findings. While the City tried to argue the interplay between Three Expos and Exotic Dallas prevented a finding the City targeted Three Expos, the “overwhelming” evidence in the record indicated the City “firmly intended to make certain that the Exxxotica convention would not be staged by anyone in the Convention Center in 2016. …Three Expo, the undisputed promoter and proposed presenter of Exxxotica 2016, was banned from presenting Exxxotica 2016” due to the totality of actions by the City. The panel held Three Expo established the three elements required for standing on each of its claims and should be permitted to proceed with its suit. The Court held the trial court committed a “manifest failure to apply the well-established principles of law governing Article III standing to the entire evidence of record in this case.” The dismissal was reversed and the case remanded for trial.

If you would like to read this opinion click here. Panel consists of Justices Jolly, Dennis and Elrod. Opinion by Justice Dennis. The attorney for Three Expos is listed as J. Michael Murray.  The attorney listed for the  City is James Bickford Pinson