U.S. Supreme Court holds Austin on-premise/off-premise sign regulation is content neutral

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

City of Austin, Texas v. Reagan Nat’l Advert. Of Austin, LLC., et al, No. 20-1029 (April 21, 2022).

The primary question in regulating off-premise signs differently than on-premise signs is whether such a regulation implicates the First Amendment in a way that requires strict scrutiny or instead allows intermediate scrutiny.  The Supreme Court of the United States held an Austin city regulation treating on-premise and off-premise signs differently is not content-based and so can be reviewed under intermediate scrutiny.

An outdoor advertiser, Reagan, attempted to obtain permits from the City of Austin to transition its off-premise signs, otherwise known as billboards, to electronic billboards.  The applications were denied by the City because the signs were off-premise signs which are not allowed to be transitioned to electronic signs although the same restriction did not apply equally to on-premise signs.  The City’s definition of “off-premise sign” at the applicable period included:

“a sign advertising a business, person, activity, goods, products, or services not located on the site where the sign is installed, or that directs persons to any location not on that site.”

Austin, Tex., City Code §25–10–3(11) (2016).  After the denial, Reagan sued the City under the United States Constitution based on the Free Speech Clause of the First Amendment as interpreted by Reed v. Town of Gilbert, arguing that the distinction between on-premise and off-premise signs was a content-based regulation that required a strict scrutiny analysis. 576 U. S. 155 (2015). The district court held that the regulation differentiating between on- and off-premise signs were content-neutral and valid under intermediate scrutiny. In Reagan’s appeal, the Court of Appeals for the Fifth Circuit held that the distinction was content-based and that it required strict scrutiny because the distinction affected both non-commercial and commercial speech and it required the City to read the sign to regulate it. The City appealed to the Supreme Court of the United States and it granted certiorari.

Under Reed, a land-use regulation requires review under strict scrutiny, a standard almost impossible to meet to validate the regulation, if it is content-based in how it regulates speech or “applies to particular speech because of the topic discussed or the idea or message expressed.” Reed, 576 U.S. at 163.  If it is content-neutral it must meet intermediate scrutiny which means the regulation is “narrowly tailored to serve a significant governmental interest.”  Ward v. Rock Against Racism, 491 U. S. 781, 791 (1989).  The Court in this case held that even though the regulation required that the sign be read to determine how to regulate it, the regulation did not “single out any topic or subject matter for differential treatment.”  Reagan at 8.  Instead, the regulation was focused on the location of the sign.  The Court stated that its ruling is consistent with the Reed case and:

It is the dissent that would upend settled understandings of the law. Where we adhere to the teachings of history, experience, and precedent, the dissent would hold that tens of thousands of jurisdictions have presumptively violated the First Amendment, some for more than half a century, and that they have done so by use of an on-/off-premises distinction this Court has repeatedly reviewed and never previously questioned. For the reasons we have explained, the Constitution does not require that bizarre result.

Reagan at 13.

The Court reversed the court of appeals opinion and remanded the question of whether the regulation meets the lower standard of intermediate scrutiny to the court of appeals for review. The Court also did not issue a holding related to whether a city can treat commercial speech differently to non-commercial speech.  Reagan at fn.3.   However, it did reference cases that provided for such commercial versus non-commercial distinctions favorably.  Reagan at 9-10.  See Suffolk Outdoor Advertising Co. v. Hulse, 439 U. S. 808 (1978); Metromedia, Inc. v. San Diego, 453 U. S. 490, 503–512 (1981) (plurality opinion); Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y., 447 U. S. 557 (1980).  Practically, this is a minor change to the Reed analysis that only applies to on-and-off-premise signs, but could have implications for other sign regulations that are broad and do not target a specific communicative content.  This case does not approve or disapprove a distinction between commercial and non-commercial content.

Sotomayer, J., delivered the opinion of the Court, in which Roberts, C.J., and Breyer, Kagan, and Kavanaugh, JJ., joined.  Breyer, J. and Alito, J. concurring.  Thomas, J. filed a dissenting opinion, in which Gorsuch and Barrett, JJ., joined.

Breyer Concurrence:  Does not agree with Reed, but agrees that this opinion is consistent with Reed.  “But the First Amendment is not the Tax Code. Its purposes are often better served when judge-made categories (like “content discrimination”) are treated, not as bright-line rules, but instead as rules of thumb.”

Alito concurring and dissenting.  Does not agree that on-/off-premise distinction is content neutral, but instead the court of appeals should look at the billboards in question on a case-by-case basis to see if the City’s ordinance is unconstitutional.

Thomas Dissent:  The bright-line rule of Reed is that if the sign has to be read to be regulated then it is a content-based restriction.  No communicative content can be a basis for regulation.

If you would like to read this opinion click here.

US 5th Circuit held officer entitled to qualified immunity due to suspects resisting placement in vehicle

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Craig, et al. v. Martin, 19-10013, (5th Cir. Feb. 15, 2022)

Special guest author: Joshua Galicia, Law Offices of Ryan Henry, PLLC

This Fifth Circuit appeal stems from a series of §1983 claims, all of which were dismissed under the appellant’s motion for summary judgment except the officer’s assertion of qualified immunity for the excessive force claims. The Fifth Circuit reversed the trial court’s denial, determined the officer was entitled to qualified immunity and dismissed the claims.

Officer William Martin (“Martin”) received a call about a “disturbance” involving A.C., Jacqueline Craig’s (“Craig”) minor child. Martin responded alone. On scene, Martin activated his bodycam and began a conversation with Craig, which escalated in hostility until Craig was yelling at Martin. Craig’s adult child Brea Hymond (“Hymond”) was recording the event on her cell phone.  Craig’s minor children are J.H. and K.H. J.H. stepped in between Craig and Martin, to which Martin grabbed J.H. and pulled her out from between them. K.H. then shoved Martin from behind. Martin proceeded to tase Craig to the ground and then handcuffed her. Martin then restrained J.H. and proceeded to walk Craig and J.H. to his vehicle. K.H. stood in front of the passenger door, in an apparent attempt to prevent Craig and J.H. from being placed within. Martin ordered K.H. to move and, upon refusing to do so, struck K.H., after which she moved out of the way. J.H. then further resisted being placed in the vehicle by keeping her leg out until Martin kicked her leg once, after which she placed her leg inside the vehicle.  Finally, Martin placed Hymond under arrest, who had been verbally harassing Martin throughout the previous events. Hymond refused to identify herself, so Martin raised her handcuffed arms behind her back to gain compliance.  Craig, individually and on behalf of her minor children, K.H. and J.H., and Hymond sued Martin for unlawful arrest and excessive use of force. The trial court dismissed most of the claims, but denied Martin’s qualified immunity defense. Martin appealed.

The Fifth Circuit divided its analysis into two parts: whether the officer’s actions were excessive and, if they were, whether the actions “violated clearly established statutory or constitutional rights of which a reasonable [officer] would have known.” For the first part, the Fifth Circuit found that the officer’s actions were reasonable given the nature of the actions taken against Martin by each party, particularly that he was by himself for the majority of these interactions while each individual was performing said actions and that there was video evidence, which contradicted some of the appellees’ allegations in their pleadings. For the second part, even if the officer’s actions had been found to be excessive, the precedent cited by appellees was noted as failing to find caselaw which showed individuals who were actively resisting officers as was present in this case to the point that Martin should have known he was violating clearly established rights. The court reversed the trial court order, held Martin was entitled to qualified immunity, and dismissed the remaining claims.

If you would like to read this opinion click here. The panel consists of Chief Circuit Judge Owen and Circuit Judges Barksdale and Duncan. Opinion by Chief Circuit Judge Owen.

Fifth Circuit holds that there is no per se rule permitting pressure placed on a resisting suspect’s back and that reasonableness of use of force can change in a single interaction

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Vicki Timpa, et al. v. Dustin Dillard, et al., 20-10876, 2021 WL 5915553 (5th Cir. Dec. 15, 2021)

Special guest author Joshua Galicia

This is a §1983 excessive force and bystander liability case appealed from the District Court of the Northern District of Texas wherein the district court granted appellees’ motion for summary judgment, dismissing both claims on the grounds that the appellees had qualified immunity. The Fifth Circuit court partly reverse-in-part and affirmed-in-part

In Dallas, Texas, Anthony Timpa called 911 requesting assistance due to a possible mental health episode and stating he had ingested cocaine. A dispatcher requested DPD officers respond to the call and that the individual may be experiencing mental health issues. For mental health calls, DPD general instructs that “as soon as [a person is] brought under control, they are placed in an upright position (if possible) or on their side.” Additional instructions were provided for individuals suffering from a state of agitation normally brought about by drug use, including cocaine. In this case, Officers Dillard, Dominguez, Vasquez, and supervising officers Rivera and Mansell arrived after Timpa had been cuffed by private security guards. Timpa began to roll towards a roadway, so Officer Dillard placed his knee on Anthony’s back, keeping it there for approximately fourteen minutes. Around nine minutes in, Timpa ceased kicking, but continued moving his head back and forth then, for the final three-and-a-half minutes, Anthony became limp and unresponsive. After Dillard removed his knee and paramedics placed Timpa on a gurney, they determined that Timpa was dead. The Dallas County medical examiner conducted an autopsy and determined that Timpa had been suffering from “excited delirium syndrome” and had died from sudden cardiac arrest brought upon by the presence of cocaine in his system as well as stress associated with physical restraint. At trial, Plaintiffs’ medical expert testified that Timpa would have lived had he been restrained without force being applied to his back. Timpa’s family brought suit against Officer Dillard for excessive force and unlawful deadly force and the other four officers for bystander liability. On summary judgment, the district court granted the defendants qualified immunity for both the excessive force and bystander liability claims. The plaintiffs appealed.

The Fifth Circuit court found that Dillard’s arguments for entitlement to qualified immunity mischaracterized precedential case law regarding excessive force. Specifically, Dillard articulated a per se rule by the Fifth Circuit that ‘[the use of a] prone restraint [on] a resisting suspect does not violate the Fourth Amendment even when pressure is applied to the suspect’s back.’ In fact, the United States Supreme Court has specifically rejected any such rule. Further, the Fifth Circuit indicated that excessive/deadly force claims are not analyzed via a generalized view of the incident, but rather via a fact-intensive review of key points throughout, as changing circumstances could require an adjustment of what is considered reasonable force. Additionally, the Fifth Circuit court kept in mind that Dillard had received training specifically on interacting with suspects suffering a mental health episode and those under the influence of certain drugs, like cocaine. In this case, the court considered that Timpa himself called 911 seeking help, that he was already cuffed when Dillard arrived, that Dillard was aware that Timpa was obese (which naturally makes breathing harder when in the prone position), that Dillard was aware Timpa had stated he’d ingested cocaine (which exacerbates any breathing difficulties), that Timpa’s head movements (which Dillard argued was continued resistance) were actually signs that Timpa was attempting to breathe, and that Timpa had gone limp several minutes before Dillard removed his knee from Timpa’s back. Ultimately, the court found that there were genuine material fact issues as to excessive force as well as the use of deadly force.

As to bystander liability, the Fifth Circuit Court found that genuine issues of material fact existed for three of the four officers. Specifically, the court found that there were questions of fact whether the three officers knew Dillard was violating Timpa’s constitutional rights, whether they had reasonable opportunity to prevent Dillard from continuing to place his knee on Timpa’s back, and whether they chose not to act accordingly. The fourth officer left before Timpa stopped moving and did not return to the scene until after Dillard had removed his knee.

The Fifth Circuit reversed the trial court’s order as to Dillard and three of the other officers and affirmed the granting of summary judgment as to the fourth officer.

If you would like to read this opinion click here. Panel consists of Circuit Judges Clement, Southwick, and Wilett. Opinion by Circuit Judge Edith Brown Clement.

U.S. 5th Circuit remands inmate’s sec. 1983 claims to evaluate whether prison disciplinary decision overlaps with excessive force claims

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Gray v. White, 20-30218, (US 5th Cir – Nov. 17, 2021)

This is a §1983/excessive force case where the U.S. Fifth Circuit Court of Appeals affirmed in part and reversed in part the trial court’s granting of the county’s summary judgment motion.

Timothy Gray is an inmate at the Elayn Hunt Correctional Center. Grey asserts Captain Wells and Major White attacked Gray in his cell without provocation, pulling him from his bunk and beating him. He was sprayed with a chemical agent and not allowed to wash it off. Grey asserts after he passed out he was put into a transport van, in restraints, and was beaten en route.  The County asserts Wells approached Grey for a targeted search. Grey was intoxicated and had vomited on himself. When Grey refused orders designed to move him to the showers to clean up he was grabbed and then became violent. The prison disciplinary board found Gray guilty of various violations. When Grey sued the individual officers who allegedly beat him, the officers moved for summary judgment based on Heck v Humphry (holding a conviction precludes relitigating aspects overlapping in a civil suit). Further, the officers asserted Grey failed to exhaust his remedies under the Prison Litigation Reform Act (“PLRA”) and is therefore precluded from suit. The trial court granted the officer’s motion and Grey appealed.

Heck holds  a prisoner may not “seek[] damages in a § 1983 suit” if “a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence.” Heck applies to both the validity and the duration of the confinement. A ruling by a prison disciplinary board also triggers the preclusive effects of Heck. However, Heck is not “implicated by a prisoner’s challenge that threatens no consequence for his conviction or the duration of his sentence.”  The court held the record was insufficient to determine whether, or which of, Gray’s claims are barred by Heck. The disciplinary reports list various factual findings but do not state which of these findings were necessary to his convictions.  As a result, the defendants failed to meet their summary judgment burden. Next, Under PLRA Grey was required to file a proper complaint about events after the shower before bringing suit. Gray failed to exhaust his administrative remedies for the claims of excessive force after he was taken from the shower area.

If you would like to read this opinion click here. Panel consists of Smith, Stewart, and Willett, Circuit Judges. Opinion by Judge Smith. Judge Willett concurred in judgement alone. Attorney for Appellee is Amber Mandina Babin, of New Orleans, Louisiana. Attorney for the Appellant is Donna Unkel Grodner, of Baton Rouge, Louisiana

Pro se appellant could not prevail on summary judgment appeal when he failed to appeal each ground for summary judgment.

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   Special contributing author Laura Mueller, City Attorney for Dripping Springs

Elezar Balli v. Officer Florentino Martinez, et al., No. 14-20-00030-CV (Tex. App.—Houston [14th Dist.] August 10, 2021) (mem. op.).

In this appeal from a trial court’s summary judgment in favor of the defendant officers, the 14th Court of Appeals affirmed the trial court’s judgment because the pro se plaintiff failed to challenge all grounds for the summary judgment and the court was required to affirm the summary judgment on the unchallenged grounds.

The plaintiff sued the officers of the Clute Police Department for tort and 1983 claims pro se after he was arrested for domestic violence and transported to jail.  While being transported the plaintiff struggled against the officers, knocked the officers down, bit the police chief, threatened the officers, hit his head on the inside of the back seat of the police car, and damaged the police car.  During the arrest, the officers tased the plaintiff.  The officers tried to use a pillow to protect the plaintiff’s head in the backseat of the car.  The defendant officers argued that: (1) the amount of force was objectively reasonable as a matter of law; (2) they were entitled to qualified immunity; and (3) the plaintiff’s conviction for assault for biting the police chief barred his claim for damages.  The trial court granted the defendant officers’ summary judgment without specifying the grounds and the plaintiff appealed the summary judgment.  The trial court also dismissed the state law claims since under Section 101.106(f) of the Texas Civil Practices and Remedies Code, the plaintiff was required to bring suit against the City rather than the officers.  The City and Police Chief were dismissed from the case because they were not properly served and the trial court had no jurisdiction over them as defendants.  The plaintiff did not appeal these holdings.

Under Texas Rule of Civil Procedure Rule 166a(c), for a summary judgment to be overturned, an appellant has to prove that any and all grounds for summary judgment were not meritorious.  If the appellant does not challenge every ground for which summary judgment was granted, then a court of appeals has to uphold the summary judgment.  The appellant in this case only appealed the issue that his conviction for assault barred his claim and failed to challenge the other two grounds.

The court of appeals affirmed the trial court’s summary judgment in favor of the defendant officers because the pro se plaintiff failed to appeal on all of the summary judgment grounds.

If you would like to read this opinion click here.   Panel consists of Justices Zimmerer, Bourliot, and Spain.  Opinion by Justice Jerry Zimmerer.

Eastland Court of Appeals holds deputies entitled to qualified immunity after takedown broke suspects jaw as video did not show constitutional level violations

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Peter Klassen v. Gaines County, Texas, and Gaines County Deputy Sheriffs Ken Ketron and Clint Low, 11-19-00266-CV (Tex.App.—Eastland July 15, 2021)

This is an excessive force/§1983 case where the Eastland Court of Appeals affirmed the trial court’s granting of the County’s and deputy’s dispositive motions.

Deputies responded to a disturbance involving possible aggressive actions by Klassen. Klassen was ordered to the ground and, while one of the deputies was attempting to put Klassen into the prone position, Klassen moved his hands and the deputy used his body weight to move Klassen into position. This caused Klassen to strike his chin on the ground, knocking out several teeth and breaking his jaw. Klassen sued.  The deputies filed a motion to dismiss t under the Tort Claims ACT (“TTCA”), which the trial court granted. They then filed a motion for summary judgment for the remaining federal and state claims. The trial court granted the motion as to the state claims, leaving the federal claims pending. Klassen then filed an amended petition which was almost exactly the same as the previous petition except that he, relevantly, attached as an exhibit an expert’s opinion that the force used was excessive. In response, appellees filed another motion to dismiss and a motion for summary judgment in the alternative, which the trial court granted. Klassen appealed the granting of the motion.

The Court of Appeals specifically noted that the trial court stated in its order that it examined the entire record when it dismissed Klassen’s claims, as such an analysis indicates that the trial court dismissed the claims under its motion for summary judgment as opposed to a motion to dismiss under the pleadings. When doing so, the standard for determining whether a trial court made an appropriate holding when it considered certain summary judgment evidence is a review for an abuse of discretion. In this case, the Court found no such abuse.

The Court found dismissal of the deputies was proper under the TTCA. Second, the Court found there was no excessive force after reviewing the video.   Third, the Court found that qualified immunity shielded the deputies as Klassen was unable to establish specific actions constituted a violation of clearly established law. The Court found Klassen had suffered no “constitutional injury” via the excessive force claim, so the county could not be held liable for any failure to train its deputies.

If you would like to read the memorandum opinion click here. Panel consists of Chief Justice Bailey and Justices Trotter and Williams. Opinion by Justice Williams.

U.S. Fifth Circuit holds court can dismiss claims sua sponte when party has had ample opportunity to amend deficient pleadings

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Anokwuru v. City of Houston, et al., No. 20-20295 (5th Cir. March 16, 2021)

This is a racial discrimination/§1983 case where the U.S. Fifth Circuit Court of Appeals affirmed the district court’s Rule 12(b)(6) dismissal.

The Houston Police Department was investigating an alleged “gang rape.” The victim identified three suspects, one named “Idris” and the other two with nicknames “Jay” and “CheChe.” The suspect “Jay” provided a statement, naming Anokwuru by his first name of “Chidera” as being involved in the incident. Based on the statements of the victim and “Jay,” the Houston Police Officer M. Francis decided to proceed with charging Anokwuru with the incident. Following indictment, the victim definitively responded that Anokwuru was not one of the three assailants and the case was dismissed by the Harris County District Attorney’s Office. Via an original complaint, a series of amended complaints, and multiple motions for leave to amend, Anokwuru filed a §1983 claim against the City of Houston and Officer Francis, claiming false/wrongful arrest, malicious prosecution, racial discrimination, and that the City had a policy of “failing to train, supervise, and discipline its employees.” The City filed an original (and amended) Rule 12(b)(6) motion to dismiss. The trial court dismissed Anokwuru’s claim but did so without granting the City’s motion. Anokwuru appealed.

The Fifth Circuit first addressed Anokwuru’s substantive claims. The false arrest, equal protection, malicious prosecution, and “failure to train” claims were all dismissed due to Anokwuru’s failure to properly allege the required elements for each respective alleged violation. Addressing the procedural arguments, the Fifth Circuit’s decision to deny Anokwuru’s fourth request to amend his complaint was not an abuse of discretion when his proposed amendment presented no new allegations or claims. Finally, the Fifth Circuit affirmed the district court’s sua sponte decision to dismiss Anokwuru’s claims because Anokwuru had multiple opportunities to put forth his best case, he filed multiple responses to the City’s arguments, and was even given notice of the magistrate judge’s recommendation to dismiss his claims – to which Anokwuru responded – before the district court dismissed his claims.  Such is within the trial court’s discretion.

If you would like to read this opinion, click here. Panel consists of Circuit Judges Stewart, Higginson, and Wilson. Opinion by Circuit Judge Wilson.

U.S. Supreme Court holds officers “seized” suspect by shooting her even if the suspect was still able to flee and escape.

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Torres v Madrid, et al., No. 19–292. (U.S. March 25, 2021)

This is an excessive force/§1983 case where the U.S. Supreme Court held the proper inquiry into a “seizure” by excessive force (i.e. gunshots) is whether the challenged conduct objectively manifests an intent to restrain as opposed to force applied by accident or for some other purpose.

Four New Mexico State Police officers arrived at an apartment complex in Albuquerque to execute an arrest warrant for a woman accused of white-collar crimes. They approached Torres in her vehicle, but she did not notice them until one attempted to open the door. Torres testified she only saw individuals had guns and believed they were carjackers. She drove off at an accelerated rate, but the officers shot at her thirteen times. She was temporarily paralyzed. She plead no contest to aggravated fleeing and other related charges. She later sued two of the officers for excessive force under §1983. The District Court granted summary judgment to the officers, and the Court of Appeals for the Tenth Circuit affirmed.  They relied on Circuit precedent providing that “no seizure can occur unless there is physical touch or a show of authority,” and that “such physical touch (or force) must terminate the suspect’s movement” or otherwise give rise to physical control over the suspect. Torres appealed.

The Court performed a detailed analysis of the term “seizure.”  The Court held a seizure requires the use of force with intent to restrain. Accidental force will not qualify.  It stated “… the appropriate inquiry is whether the challenged conduct objectively manifests an intent to restrain, for we rarely probe the subjective motivations of police officers in the Fourth Amendment context.” The seizure does not depend on the subjective perceptions of the seized person.  The Court held the application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued.  The Court emphasized this rule is narrow. There is a distinction between seizures by control and seizures by force. A seizure by acquisition of control involves either voluntary submission to a show of authority or the termination of freedom of movement. Seizure by force is the application of force with intent to restrain (viewed from an objective standard). However, not all seizures are unreasonable, so the Court remanded the case back for a reasonableness determination.

If you would like to read this opinion click here. Chief Justice ROBERTS delivered the opinion of the Court, in which BREYER, SOTOMAYOR, KAGAN, and KAVANAUGH, JJ., joined. GORSUCH, J., filed a dissenting opinion, in which THOMAS and ALITO, JJ., joined. BARRETT, J., took no part in the consideration or decision of the case.

U.S. Fifth Circuit holds former police officer failed to establish same-sex sexual harassment by supervisor even under recent Bostock decision

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Brandy Newbury v City of Windcrest, Texas, 20-50067 (5th Cir. March 22, 2021)

This is an employment discrimination case where the U.S. Fifth Circuit Court of Appeals affirmed the granting of the City’s motion for summary judgment.

Brandy Newbury was a police officer within her first year of employment with the City. Newbury asserted during the first year she was sexually harassed by a female supervisor, Officer Jaime because Jaime was rude to her and confrontational. The City hired an outside investigator who determined Jaime was rude, but the actions did not constitute sexual harassment. Later on, during the first year, Newbury asserted she heard a rumor another officer was following her trying to catch her violating City policy. She reported her belief that was occurring, but nothing was done.  Finally, Newbury asserts the City was secretly recording her in her home by remotely activating her body-worn camera. While the manufacturer testified the cameras could not be remotely activated that way, Newbury continued to assert a §1983 claim for invasion of privacy. However, Newbury admitted she never saw a recording of herself taken and based her belief on the fact a red light on her camera would come on by itself.   Newbury asserted the treatment was so bad she felt forced to resign, but then later asserted she was terminated. The City filed a motion for summary judgment, which was granted. Newbury appealed.

The Fifth Circuit started by noting Title VII is not a general civility code for the American workplace.  Contrary to Newbury’s assertions, the panel distinguished this case from the recent U.S. Supreme Court opinion of Bostock v. Clayton County, 140 S. Ct. 1731 (2020) holding that while the Bostock decision “expanded the groups of individuals protected by Title VII, it in no way altered the preexisting legal standard for sexual harassment.” The panel held Newbury did not receive an adverse personnel action as a supervisor’s “rudeness” was insufficient to constitute an adverse action. Additionally, the rude actions complained of did not rise to that “greater degree of harassment” that would cause a reasonable person to resign. Additionally, a shift-change, even one which has an officer on it the plaintiff does not like, is not an actionable claim. Newbury failed to provide sufficient evidence that comparable men and women were treated differently.  Newbury failed to establish a prima facie case of retaliation since no adverse employment action occurred.  Further, the evidence demonstrated she resigned and was not terminated. Therefore, all of her Title VII claims failed.  Finally, Newbury failed to establish the body-worn cameras actually recorded her or that, even if she had produced recordings, there was a policy, custom, or practice which would have caused the recordings.  As a result, the trial court properly granted the City’s summary judgment motion.

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

U.S. 5th Circuit holds property owner’s federal Clean Water Act claim against Town for improper discharge was proper due to lack of comparable state regulation

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Stringer v. Town of Jonesboro, 20-30192 (5th Cir. Jan. 18, 2021)

In this §1983 taking suit and federal Clean Water Act (“CWA”) case, the U.S. 5th Circuit held the Plaintiff’s §1983 suit for damages due to sewage backup was barred, but not her Clean Water Act claim.

Stringer alleges that, since at least 2011, the Town’s wastewater treatment system has malfunctioned during periods of heavy rain, with chronic failures of a specific pump. She asserts the Town failed to respond to her complaints as political payback she ran against the mayor in an election.  She was also an alderwoman. The Louisiana Department of Health (LDOH) and the Louisiana Department of Environmental Quality (LDEQ) were aware of the overtaxed system. LDEQ sent the Town warning letters and issued compliance orders. LDOH also enforced the State Sanitary Code, issued the Town a compliance order imposed mandatory ameliorative measures and assessed a daily fine. Stringer brought a “citizen suit” under the CWA, 33 U.S.C. § 1365, as well as constitutional takings claims under 42 U.S.C. § 1983. She also sued the Mayor asserting he retaliated against her. The Defendants filed a motion to dismiss which the trial court granted. Stringer appealed.

The CWA creates a regime of water pollution regulation that harnesses state and federal power but also allows citizen suits. However, such citizen suits are not permitted if the applicable state is already prosecuting comparable enforcement actions. A state statute is “comparable” to the CWA so long as the state law contains comparable penalty provisions, has the same overall goals, provides interested citizens a meaningful opportunity to participate at significant stages of the decision-making process, and has adequate safeguards. The Louisiana Sanitary Code provides no formal or structured means for interested citizens to become aware of LDOH’s enforcement efforts, nor any mechanism by which they can call for further action. However, LEQA’s enforcement mechanisms provide for interested parties to obtain “periodic notice” of “all violations, compliance orders and penalty assessments,” because it mandates public comment before a proposed settlement is finalized, and because it permits third parties to “intervene in an adjudicatory hearing, or petition for an adjudicatory hearing if none is held.” However, LDEQ was not the focus of the Defendants’ diligent prosecution argument in the district court. Further, whether LDEQ has “diligently” pursued a comparable action under § 1319(g) may be “a fact-intensive question that can only be answered after the proper development of a record.”  As a result, the CWA claims should not have been dismissed. However, Stringer’s §1983 takings claim had a one-year statute of limitations. Stringer’s complaint confirms she was aware of the pertinent underlying facts as early as November 2011. A cause of action accrues when the plaintiff learns the facts giving rise to her injury. As a result, such claims were properly dismissed. Finally, Stringer’s First Amendment retaliation claim was also time-barred.

If you would like to read this opinion click here. Panel consists of Justices Elrod, Duncan and Wilson. Opinion by Justice Duncan.

Beaumont Court of Appeals holds City is not liable for alleged failure to create a police report, failure to investigate, or failure to prosecute as asserted by Plaintiff

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Caryn Suzann Cain v. City of Conroe, Tex., et al., 09-19-00246-CV, 2020 WL 6929401 (Tex. App.—Beaumont Nov. 25, 2020)

 This is an interlocutory appeal from the trial court’s order granting the City’s motion to dismiss, plea to the jurisdiction, and traditional motion for summary judgment.

Plaintiff, Caryn Suzann Cain, filed a pro se civil suit against the Conroe Police Department alleging police negligence in the department’s investigation and disposal of her complaints regarding disputes with her neighbors. Cain asserted the City failed to render police assistance and file an incident report after she was allegedly assaulted by her neighbor’s dog, and that the Department showed bias towards her neighbor, a state correctional officer, who allegedly continued to harass her over a period of eighteen months.  Cain later § 1983 claims against the City.  In response, the City defendants filed a motion to dismiss under §101.106(e) of the Civil Practice and Remedies Code, a plea to the jurisdiction, and traditional motion for summary judgment.  The trial court granted all motions.

The officers were entitled to dismissal of the tort claims under §101.106(e).  Next, under the TTCA if an injury does not arise from a city employee’s operation or use of a motor-driven vehicle, then the city is not liable for its employee’s negligence. “Arises from” requires a plaintiff to show a direct connection between the injury and the employee’s vehicle operation or use.  Simply using a patrol vehicle’s radio is not actionable. Similarly, the court noted mere involvement of tangible personal property in an injury does not, by itself, waive immunity.  The tangible personal property must do more than create the condition that makes the injury possible. Here, no tangible personal property was negligently used to result in any of the alleged injuries. Next, to allege a valid constitutional rights violation under § 1983 against the City, Cain was required to assert a deprivation was caused by a policy, custom, or practice of the City. A municipality is not liable under § 1983 for the unconstitutional acts of its non-policymaking employees.  The Court determined Cain did not allege sufficient facts showing an unconstitutional policy or custom was being implemented. Finally, the Due Process Clause does not require the State to protect life, liberty, and property of its citizens against invasion by private actors, and it generally confers no affirmative right to government aid.  Thus, Cain’s allegation that the City failed to protect her against her neighbor did not constitute a due process violation.

If you would like to read this opinion click here.  Panel consisted of Chief Justice Steve McKeithen and Justices Hollis Horton and Leanne Johnson.  Opinion by Chief Justice McKeithen.  Docket page with attorney information can be found here.

 

The Ninth Court of Appeals affirmed judgment for City in First Amendment/Whistleblower claims since no causal connection was present

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Samer Shobassy v. City of Port Arthur, No. 09-18-00363-CV (Tex. App.—Port Arthur  November 19, 2020) (mem. op.).

In this appeal from a trial court’s judgment dismissing the plaintiff’s retaliation-in-employment case.  The Beaumont Court of Appeals affirmed the trial court’s summary judgment.

The plaintiff worked as an assistant city attorney for the city for five years and the city attorney was the plaintiff’s supervisor.  During the plaintiff’s employment, he discussed the city’s compliance with purchasing law in the context of his employment as an assistant city attorney.  He was terminated by the city attorney and was given a termination notice which indicated that he was terminated because, among other things, he failed to follow-up on tasks and communicate with the city attorney and failed to complete the tasks assigned to him.  Plaintiff sued the city in district court claiming a Whistleblower Act claim and that his termination violated his First Amendment rights.  The city filed a plea to the jurisdiction and no evidence motion for summary judgment which the trial court granted.

To establish a claim for retaliation under the Whistleblower Act, the plaintiff has to show that the employer’s termination would not have occurred had the plaintiff not made a good faith allegation of violation of law to an appropriate law enforcement authority.  Tex. Dep’t of Human Servs. v. Hinds, 904 S.W.2d 629, 637 (Tex. 1995).  The report has to be a “but-for” cause of the termination.  Office of the Attorney Gen. of Tex. v. Rodriguez, 605 S.W.3d 183, 198 (Tex. 2020). The plaintiff was unable to make the causal connection.  To establish a claim for a free-speech retaliation claim, the plaintiff must show the plaintiff was terminated for engaging in constitutionally protected speech.  Bd. of Cty. Comm’rs, Wabaunsee Cty., Kan. v. Umbehr, 518 U.S. 668, 675 (1996).   The speech in question is not protected if it is spoken within the context of the employee’s official duties.  Davis v. McKinney, 518 F.3d 304, 312 (5th Cir. 1998). The Whistleblower claim was dismissed because the claims of illegal conduct by the City were not made until after the termination. The free speech claim was invalid because his speech was performed and related to is employment position. The dismissal of both was proper.

If you would like to read this opinion click here.   Panel consists of Chief Justice McKeithen and  Justices Kreger and Horton. Opinion by Justice Hollis Horton

The U.S. Fifth Court of Appeals held plaintiffs had standing to challenge zombie law provision in charter despite the election being over.   

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Joe Richard Pool, III, et al. v. City of Houston, et al., No. 19-20828 (5th Cir.  October 23, 2020).

In this appeal from a trial court’s dismissal of an election case.   The U.S. Fifth Circuit reversed the trial court’s dismissal and held that the plaintiffs had standing to continue the suit for future petitions.

The plaintiffs are petition circulators who attempted to circulate a petition in the city where they are not registered voters.  The city stated that it had a charter provision that required petitions to be circulated or signed by registered voters, but that they were going to look into the issue.  While the city was researching the issue, the plaintiffs filed suit in federal district. The district court held that the charter provision was unconstitutional and granted the temporary restraining order preventing enforcement.  After the petition period was over, the trial court dismissed the case as moot. The plaintiffs appealed. During the litigation, the city added an “editor’s note” to its charter that it would accept petitions from anyone and had a link to a new form regarding such.  The city argues that it will not be enforcing the provision and has approved a form and notation to that effect which should preclude a permanent injunction case.

When laws are deemed unconstitutional they are not always updated or removed from documents.  These are called zombie laws.  The Houston Charter has a provision that limits petition signers to registered voters.  This type of law was deemed unconstitutional in 1999 but was not removed from the city’s charter.  See Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 193–97 (1999).  In order to show standing to overturn such a zombie law, plaintiffs must show that they are “seriously interested in disobeying, and the defendant seriously intent on enforcing, the challenged measure.” Justice v. Hosemann, 771 F.3d 285, 291 (5th Cir. 2014).  The Fifth Circuit held that it was clear that the plaintiffs would continue to try to submit petitions despite not being registered voters and that the city’s notation and form were insufficient to prevent enforcement.  The court held that the plaintiffs have standing and could continue their suit against the city for future petitions.

If you would like to read this opinion click here.   Panel consists of  Justices Graves, Costa, and Engelhardt. Opinion by Circuit Judge Gregg Costa.

 

U.S. 5th Circuit holds Plaintiff students established standing to assert University’s student speech policies on harassments and rudeness are unconstitutional

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Speech First, Inc. v. Fenves, 19-50529 (5th Cir. Oct. 28, 2020)

This is a First and Fourteenth Amendment free speech case in a university setting. The U.S. 5th Circuit Court of Appeals reversed the dismissal of the plaintiffs’ claims and reinstated the case.

Speech First, Inc., (“Speech First”) is an organization of free-speech advocates which brought suit on behalf of students at the University of Texas at Austin (“University”) challenging seven policies of the University. The policies prohibited obscenity, defamation, rude statements, “verbal harassment of another” with a very broad definition, a requirement that if a person demands the student to stop communicating with them the student must oblige,  and several others. The Dean of Students (Fenves) has primary authority and responsibility for the administration of student discipline. The trial court dismissed the claims due to a lack of standing. The Plaintiffs appealed.

In general, “‘a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice,’” so the fact the University amended its policies does not preclude the court from analyzing the original policies. Further, some of the definitions were not amended, thereby leaving the controversy live. Next, Because Speech First seeks a preliminary injunction on behalf of its members, it must clearly show that it likely has associational standing to bring its case on the merits.  Speech First has standing if any of its members have standing. The gravamen of Speech First’s claims is that its student-members wish to engage in robust debate on timely and controversial political topics from a contrarian point of view. Because their views do not mirror those of many on campus, their speech may be deemed “harassment,” “rude,” “uncivil,” or “offensive,” as those terms are defined in the University’s policies. The court has repeatedly held, in the pre-enforcement context, that “[c]hilling a plaintiff’s speech is a constitutional harm adequate to satisfy the injury-in-fact requirement.” Evidence supported that students “are afraid to voice their views out of fear that their speech” may violate University policies.  Further, terms like “harassment,” “intimidation,” “rude,” “incivility,” and “bias” beg for clarification as they are too broad and not sufficiently prescriptive. The prong requiring substantial threat of future enforcement to confer standing does not necessarily apply for a facial challenge, only an “as-applied” challenge. The dismissal is reversed and the case remanded to the district court for a reassessment of the preliminary injunction.   The court finally cautioned that “In our current national condition, however, in which ‘institutional leaders, in a spirit of panicked damage control, are delivering hasty and disproportionate punishment instead of considered reforms,’ courts must be especially vigilant against assaults on speech in the Constitution’s care.”

If you would like to read this opinion click here. Panel consists of Justices King, Jones and Costa. Opinion by Justice Jones.

Officers’ and City’s appeal dismissed by U.S. 5th Circuit because their dismissal “with prejudice” argument inapplicable when inmate could still get conviction reversed

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Kerry Max Cook v. City of Tyler, Texas, et al., 19-40144, 2020 WL 5268509 (5th Cir. Sept. 4, 2020)

This is an appeal and cross-appeal from a dismissal of Cook’s §1983 claim seeking damages suffered from a series of wrongful prosecutions, convictions, and imprisonment, which the U.S. 5th Circuit affirmed.

Kerry Cook filed a §1983 claim, alleging official misconduct via a series of wrongful prosecutions, convictions, and imprisonment. However, the district court, citing Heck v. Humphrey (512 U.S. 477 (1986)), found that a malicious prosecution §1983 claim does not accrue until his conviction is formally terminated in his favor, the Texas Court of Criminal Appeals vacates his conviction, and the State dismisses the indictment against him. The district court dismissed Cook’s suit “with prejudice to the claims being asserted again until the Heck conditions are met…” The City and officer Defendants appealed the dismissal as being without prejudice, insisting the dismissal must be with prejudice. Cook asserted the dismissal was not final, not appealable, and therefore the 5th Circuit lacked subject matter jurisdiction.

The 5th Circuit analyzed two questions: 1) whether the dismissal was with or without prejudice, and 2) whether the dismissal was final and appealable. To the first question, the 5th Circuit found that the dismissal language is taken near verbatim from non-prejudicial language recommended in Johnson v. McElveen (101 F.3d 423 (5th Cir. 1996)), when a trial court is dismissing a case under the condition that it may be reasserted if the Heck conditions are met. To the second question, the 5th Circuit held the dismissal was not final, and thus not appealable because the district court contemplated Cook satisfying the Heck conditions at a later date. The 5th Circuit contrasted this court’s Heck dismissal with other, appealable, dismissals where the issue to be determined was whether Heck was even applicable.

If you would like to read this per curiam opinion, click here. The panel consists of Justices Davis, Jones, and Willett.