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Law Professors’ Amicus Brief in Lane v. Franks

I blogged on January 20, 2014, about the Supreme Court’s grant of certiorari in Lane v. Franks, a potentially significant First Amendment public employee free speech case in which a public employee was allegedly terminated because of his truthful subpoenaed testimony in a federal fraud trial. My post provides relevant background on the case.

I recently co-authored a Law Professors’ Amicus Brief in Support of Petitioner in Lane. It was posted, and can be accessed, at SSRN. The other co-authors are Scott R. Bauries of University of Kentucky College of Law and Paul M. Secunda of Marquette University Law School.

“This brief, submitted on behalf of more than 65 law professors who teach and write in the areas of employment law and constitutional law, argues that the Court should reverse the 11th Circuit’s decision denying First Amendment protection to a public employee who was allegedly terminated in retaliation for his testimonial speech in a criminal trial.”

I think you will find it interesting reading.

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March 13, 2014 at 11:07 am

Know Your Constitution (6): What Is Procedural Due Process?

This is another in a series of posts written about the Constitution in everyday language, with a minimum of legal jargon. Previous posts introduced the Constitution, rebutted some commonly held myths about the Constitution,  addressed the Equal Protection Clause and considered free speech and hate speech.

This and subsequent posts will deal with the meaning of the Due Process Clauses that appear in the Fifth and Fourteenth Amendments. These have virtually identical language.

The Fifth Amendment’s Due Process Clause applies to the federal government (“No person … shall …be deprived of life, liberty, or property, without due process of law”).

The Fourteenth Amendment’s Due Process Clause applies to state and local governments (“nor shall any State deprive any person of life, liberty, or property, without due process of law”).

Distinguishing Between Procedural Due Process and Substantive Due Process

This post deals with procedural due process which focuses on fair and timely procedures. It is far less complicated and controversial than substantive due process which focuses on  government regulation of conduct such as abortion, sexual conduct and certain family matters.

Life, Liberty and Property Interests

Procedural due process may be implicated whenever the government threatens to take a life, liberty or property interest from an individual.

The meaning of  a “life” interest is self evident. The meaning of property and liberty interests is more tricky. As a general matter, both are brought into existence by state and local law. However, whether they constitute property and liberty interests for procedural due process purposes is a matter of federal constitutional law.

For example, a mere expectation of continued employment by a terminable-at-will public employee is not a property interest because there is no “legitimate claim of entitlement.” In contrast, if that public employee has a contract and is terminated in the middle of that contract period without any kind of a hearing, then that may constitute a property interest triggering procedural due process protections.

Although it is too complicated to get into here, liberty interests may include an individual’s interest in not being imprisoned (from the tort of false imprisonment), in not having his or her physical integrity interfered with (from the tort of battery) and in not having his or her privacy invaded (from the tort of privacy)

What Kind of Hearing and When?

Once it is shown that government threatens to deprive a person of a life, liberty or property interest, then certain procedural protections may kick in.

Ordinarily (except when there is a true emergency), a pre-deprivation hearing of some kind is required. Moreover, that pre-deprivation hearing must have minimal procedural protections: the government must provide notice of the accusations against the individual, it must present evidence against him or her and the individual must have an opportunity to respond. Not surprisingly, procedural due process requires an impartial decision-maker at some point in the proceedings.

The best example of a pre-deprivation hearing with maximum procedural protections is a criminal trial. In contrast, pre-deprivation hearings directed at property interests do not necessarily have to be conducted by judges. Very often administrative proceedings are sufficient for procedural due process purposes so long as they provide the minimum protections described above: notice, the government’s evidence, the opportunity to respond and an impartial decision-maker.

Next: Substantive Due Process

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February 7, 2014 at 9:55 am

Posted in Constitutional Law

My New Video on Section 1983 Basics

In early December 2013, I delivered a one and one-half hour presentation on section 1983 to the New Mexico Defense Lawyers Association (NMDLA).

This presentation covers the elements of the section 1983 claim, individual immunities (absolute and qualified) and local government liability. It also includes Tenth Circuit cases of relevance to this particular audience.

I refer during the presentation to an outline I provided to the NMDLA audience, but that outline is not necessary in order to learn from my video.

The video is here: http://kentlaw.hosted.panopto.com/Panopto/Pages/Viewer/Default.aspx?id=16b8dbcf-b6b3-4ede-bc77-c0fa13de4840

I hope you will find it of interest and useful.

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January 28, 2014 at 11:59 am

Cert Granted in New Public Employee Free Speech Case: Lane v. Franks

Certiorari Granted in Lane v. Franks

The Supreme Court granted certiorari on January 17, 2014, in a potentially significant public employee free speech case.  The case, Lane v. Franks, No. 13-483, arises out of an unpublished Eleventh Circuit decision, Lane v. Central Alabama Community College, 523 Fed. Appx. 709 (11th Cir. 2013).

In Lane, the plaintiff, the probationary director of a community college’s training program for at-risk youth, discovered that a state representative was getting paid to work for the program he ran even though she had performed no work. He raised these concerns internally but was warned that terminating her would cause problems. He terminated her nonetheless. Thereafter the FBI investigated the state representative with the result that the plaintiff testified before a federal grand jury and, pursuant to a subpoena, testified at the representative’s federal criminal trial for fraud. Subsequently, the plaintiff was terminated by Franks, the president of the community college.

Plaintiff filed a First Amendment retaliation claim under section 1983 against Franks in his individual and official capacities, alleging that plaintiff was fired because of his testimony. The district court ruled for the defendant, and this decision was affirmed by the Eleventh Circuit on the ground that the plaintiff’s speech was made pursuant to his official duties within the meaning of Garcetti v. Ceballos, 547 U.S. 410 (2006), or at least owed its existence to his professional responsibilities. The speech was thus not the speech of a citizen on a matter of public concern: rather, the plaintiff  was acting pursuant to his official duties when he discovered that the state representative was not doing work, when he terminated her employment and when he testified pursuant to subpoena. Accordingly, the First Amendment did not apply to protect the plaintiff.

Questions Presented

1. Is the government categorically free under the First Amendment to retaliate against a public employee for truthful sworn testimony that was compelled by subpoena and was not a part of the employee’s ordinary job responsibilities?

2. Does qualified immunity preclude a claim for damages in such an action?

Comments

If you are familiar with my highly critical article on Garcetti, you will recall I argued that Garcetti was unsound and that, at the very least, the “pursuant to official duties” criterion should be narrowly interpreted so as to give as much breathing space as possible to whistleblowers. See my post of December 8, 2009 entitled Public Employee Free Speech: The New Regime.

Note that Lane does not deal with alleged retaliation arising out of the plaintiff’s internal report about the state representative, which is rather clearly speech pursuant to his official duties under Garcetti. Instead it deals with the plaintiff’s subpoenaed testimony, which should be considered the speech of a citizen on a matter of public concern.

Lane will be argued and decided this Term.

 

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January 20, 2014 at 3:16 pm

Know Your Constitution (5): Free Speech and Hate Speech

This is the fifth in a series of posts, intended for a general audience, discussing the Constitution.   Previous posts introduced the Constitution, rebutted some commonly held myths about the Constitution and addressed the Equal Protection Clause.

Today’s post deals with hate speech and that part of the First Amendment that declares: “Congress shall make no law … abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”.

I want to emphasize three important take-away points at the outset. One is that the First Amendment protects us from the government; it does not apply to relations between private persons. Second, the First Amendment, like all individual rights in the Constitution, is not absolute. And last, freedom of speech has costs.

What is freedom of speech anyway? There is the joke told years ago by the Russian comedian Yacov Smirnoff. He was confronted by an American bragging about freedom of speech. Smirnoff retorted: “Big deal! We also have freedom of speech in Russia. What we don’t have is freedom after speech.”

One of the most controversial free speech issues involves hate speech, including but not limited to the anti-Semitic kind. Hate speech and anti-Semitism are major concerns in Europe and the Middle East and remain a nagging concern in the US as well. Hate speech can be defined as speech directed at a historically oppressed religious or racial minority with the intent to insult and demean. Hate speech undermines social attitudes and beliefs, it isolates its targets and it tends to silence them because they are often stunned and unable to respond. Hate speech also traumatizes (think of the effect it had on survivors and other Jews when the Nazis threatened to march in Skokie). We all know some of the hateful slurs that are too often directed against Jews, blacks, Latinos and Italians in this country.

What does the First Amendment, through interpretations by the Supreme Court, have to say about hate speech? The short answer is that the First Amendment prohibits government from regulating such speech altogether. This is a very different approach from that of countries in Western Europe that often prohibit such speech, including denials of the Holocaust.

But why should that be? After all, despite the children’s saying about sticks and stones, we know that words can in fact hurt and lead to terrible acts. Words have power.  Words have costs.

One answer is that the First Amendment creates a marketplace of ideas in which everyone can participate. Everyone can try to sell his or her ideas to the marketplace and the buyers in the marketplace eventually decide which ideas have value and which do not, which ideas are truthful and which are not. We are all sellers and buyers in this marketplace.

What is the government’s role in this marketplace of ideas? Basically, the government must stay neutral; it must keep its hands off of the marketplace. The Enlightenment assumption—the assumption of the Framers of the Constitution—that underlies the marketplace of ideas is that people are ultimately rational, they may be persuaded by reason, even though emotions and passions play a major rule in political decision-making.

What kinds of ideas are out there in the marketplace of ideas? Political ideas, artistic ideas, scientific ideas, social ideas of all kinds, whether smart, crazy, far-out, brilliant, dangerous.

However, despite what I’ve just said, there are some communications that are not allowed in the marketplace of ideas. Obscene speech, for one, carefully defined by the Supreme Court, is excluded from the marketplace of ideas. Another kind of communication, child pornography, is also not allowed because its production involves child abuse. The reasons for these exceptions include history and the belief that these kinds of communications have little or no redeeming social value.

So now you’re thinking the following: if there are some exceptions under the First Amendment and its marketplace of ideas, why not also include hate speech as an exception? After all, hate speech surely has little or no redeeming social value. It insults, it demeans, it traumatizes, it silences and there is a consensus in American society that it is valueless at best and dangerous at worst. Why should government not be allowed to prohibit it?

The Supreme Court’s answer to this particular question is that even hate speech contains political ideas, however horrible these ideas may be. When you regulate such speech, you are also regulating ideas. Think of George Orwell’s Animal Farm and forbidden words. The Supreme Court has also made clear that just because speech offends people, this is never a justification under the First Amendment for punishing it. Furthermore, we are justifiably suspicious of government when it attempts to regulate speech and ideas. After all, government may have its own political agenda in regulating hate speech—which groups would be protected against hate speech and which not?

Finally, and perhaps most important, think about how the marketplace of ideas functions: even if hateful ideas are communicated, the theory (hope?) is that counter-speech will emerge to rebut it and to fight it. In other words, more speech rather than less is the remedy.

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December 4, 2013 at 9:16 am

Certiorari Granted in Plumhoff v. Rickard: Excessive Force, High-Speed Police Pursuits and Scott v. Harris

Plumhoff v. Rickard: Certiorari Granted

The Supreme Court has granted certiorari in Plumhoff v. Rickard, No. 12-1117 (2014), an unpublished decision in Estate of Allen v. City of West Memphis, 509 Fed. App’x 388 (6th Cir. 2012).

Here are the questions presented:

“1. Whether the Sixth Circuit wrongly denied qualified immunity to Petitioners by analyzing whether the force used in 2004 was distinguishable from factually similar force ruled permissible three years later in Scott v. Harris, 550 U.S. 372 (2007). Stated otherwise, the question presented is whether, for qualified immunity purposes, the Sixth Circuit erred in analyzing whether the force was supported by subsequent case decisions as opposed to prohibited by clearly established law at the time the force was used.”
“2.  Whether the Sixth Circuit erred in denying qualified immunity by finding the use of force was not reasonable as a matter of law when, under Respondent’s own facts, the suspect led police officers on a high-speed pursuit that began in Arkansas and ended in Tennessee, the suspect weaved through traffic on an interstate at a high rate of speed and made contact with the police vehicles twice, and the suspect used his vehicle in a final attempt to escape after he was surrounded by police officers, nearly hitting at least one police officer in the process.”

The Background: Scott v. Harris

In 2007, the Supreme Court held in Scott v. Harris that “a law enforcement official can, consistent with the Fourth Amendment, attempt to stop a fleeing motorist from continuing his public-endangering flight by ramming the motorist’s car from behind” even though the officer’s actions “place [the] fleeing motorist at risk of serious injury or death.” In the case before it, the Court reversed the Eleventh Circuit which had affirmed the district court’s denial of officer’s qualifed immunity summary judgment motion. A videotape of the chase made abundantly clear, said the Court, that no jury could find that what the officer did— ramming the plaintiff motorist’s car and thereby seizing it — was objectively unreasonable.

In the course of its opinion the Supreme Court explained the relationship among Tennessee v. Garner, 471 U.S. 1 (1985)(deadly force), Graham v. Connor, 490 U.S. 386 (1989)(excessive force in general) and the Fourth Amendment’s reasonableness requirement. It noted that “Graham did not establish a magical on/off switch that triggers rigid preconditions whenever an officer’s actions constitute ‘deadly force.’ Garner was simply an application of the Fourth Amendment’s ‘reasonableness’ test in a particular type of situation.”

Justices Ginsburg and Breyer concurred, while Justice Stevens dissented, arguing that the Court had usurped the jury’s function.

Comments

1. The Supreme Court will almost certainly reverse the Sixth Circuit and declare that the latter’s approach in this and similar cases is fundamentally inconsistent with Scott.

2. Note that Scott must be sharply distinguished from those high speed police pursuit cases in which there is no seizure, with the result that the substantive due process “purpose to do harm” standard governs, and not Fourth Amendment reasonableness standards. County of Sacramento v. Lewis, 523 U.S. 833 (1998).

More on the Fourth Amendment and excessive force can be found at sections 3:17-3:23 in  Nahmod, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2013)(West Group).

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November 20, 2013 at 12:40 pm

A Video Presentation on Town of Greece v. Galloway

My most recent post set out the pending Supreme Court case, Town of Greece v. Galloway, dealing with legislative prayer and the Establishment Clause.

I was recently interviewed by my colleague, Professor Carolyn Shapiro, about this case, for Chicago-Kent’s ISCOTUS/Oyez Project.

This short interview, which covers the Town of Greece case, the Establishment Clause and incorporation, is available here.

I hope you find it of interest.

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October 31, 2013 at 10:15 am

Town of Greece v. Galloway: Pending Supreme Court Decision on Legislative Prayer and the Establishment Clause

The Town of Greece Case

Suppose a town, over a period of a decade or so, regularly invited Christian clergymen to lead the opening prayers in town board meetings. Suppose also that these clergymen, more often than not, invoked Jesus and/or the Holy Ghost in their prayers and that, typically, everyone was asked to stand, bow his/her head or join in the prayer, which some did. At the same time, the town occasionally, albeit infrequently, invited a few others, including non-Christian clergy, to lead the opening prayer. Did this pattern violate the Establishment Clause?

The Second Circuit, in Galloway v. Town of Greece, 681 F.3d 20 (2d Cir. 2012), held that it did. It explained (emphasis added):

“We emphasize what we do not hold. We do not hold that the town may not open its public meetings with a prayer or invocation. Such legislative prayers, as Marsh holds and as we have repeatedly noted, do not violate the Establishment Clause. Nor do we hold that any prayers offered in this context must be blandly “nonsectarian.” A requirement that town officials censor the invocations offered — beyond the limited requirement, recognized in Marsh, that prayer-givers be advised that they may not proselytize for, or disparage, particular religions — is not only not required by the Constitution, but risks establishing a “civic religion” of its own. Occasional prayers recognizing the divinities or beliefs of a particular creed, in a context that makes clear that the town is not endorsing or affiliating itself with that creed or, more broadly, with religion or non-religion, are not offensive to the Constitution. Nor are we adopting a test that permits prayers in theory but makes it impossible for a town in practice to avoid Establishment Clause problems. To the contrary, it seems to us that a practice such as the one to which the town here apparently aspired — one that is inclusive of multiple beliefs and makes clear, in public word and gesture, that the prayers offered are presented by a randomly chosen group of volunteers, who do not express an official town religion, and do not purport to speak on behalf of all the town’s residents or to compel their assent to a particular belief — is fully compatible with the First Amendment.

What we do hold is that a legislative prayer practice that, however well-intentioned, conveys to a reasonable objective observer under the totality of the circumstances an official affiliation with a particular religion violates the clear command of the Establishment Clause. Where the overwhelming predominance of prayers offered are associated, often in an explicitly sectarian way, with a particular creed, and where the town takes no steps to avoid the identification, but rather conveys the impression that town officials themselves identify with the sectarian prayers and that residents in attendance are expected to participate in them, a reasonable objective observer would perceive such an affiliation.”

The Supreme Court granted certiorari, Town of Greece v. Galloway, No. 12-696, and will give us its answer to the Establishment Clause question this Term. Oral argument takes place on November 6, 2013.

Commentary

The Second Circuit used Justice O’Connor‘s endorsement test in holding that the Establishment Clause was violated. See Lynch v. Donnelly, 465 U.S. 668 (1984), involving religious displays. There were also hints of the oft-derided (especially by Justice Scalia) Lemon test with its insistence on a  secular effect. See Lemon v. Kurtzman, 403 U.S. 602 (1971), dealing with aid to religious schools.

What was not really mentioned by the Second Circuit is Justice Kennedy‘s coercion test, set out in Lee v. Weisman, 505 U.S. 577 (1992), which involved a middle-school authorized prayer at graduation . If such a test were applied here, the result probably would be that these opening prayers did not violate the Establishment Clause because adults were involved and the situation was not really coercive. So an important question is: which of these tests will the Court use?

The Court could scuttle the endorsement test in the course of reversing the Second Circuit and apply the less restrictive, more deferential coercion test. Or it could retain the endorsement test and rule narrowly that the circumstances did not amount to an endorsement of religion.

In the background, and perhaps the foreground, is Marsh v. Chambers, 463 U.S. 783 (1983), the only case in which the validity of legislative prayer has been considered by the Supreme Court. Here, the Court ruled that the Nebraska legislature’s practice of opening its sessions with a prayer delivered by a state-employed clergyman did not violate the Establishment Clause. The Court used an historical approach to interpreting the Establishment Clause, emphasizing that the Framers themselves, by their practice in Congress, did not view legislative prayers led by government-employed clergy as violations of the Establishment Clause. In addition, and importantly, the Court noted that the Judeo-Christian content of the prayers in Marsh did not establish religion because the prayers did not proselytize, advance any religion or disparage any religion.

I have long thought that Marsh was a questionable decision: the Framers’ practice should not have been determinative of the validity under the Establishment Clause of legislative prayers led by government employed clergy.

But assuming that Marsh was sound and should be followed, is Town of Greece nevertheless distinguishable from Marsh on the ground that the prayers here advanced Christianity?

My prediction is that the Court will reverse the Second Circuit. The more important issue is how the opinion will be written and by whom.

(For general background on the Establishment Clause, see my post, The Religion Clauses: ‘Tis the Season).

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October 15, 2013 at 9:51 pm

New University Academic Freedom Decision from Ninth Circuit: Demers v. Austin

Background on Garcetti and Public Employee Free Speech

Some time ago I blogged critically about the Supreme Court‘s game-changing public employee free speech decision in Garcetti v. Ceballos, 547 U.S. 410 (2006). In Garcetti, the Court held, 5-4, that a public employee whose speech is part of his or her official duties is not protected by the First Amendment from employer discipline for that speech.

Subsequently, I argued in a law review article, Academic Freedom and the Post-Garcetti Blues, that Garcetti should not apply to a college or university professor’s teaching and scholarship.

The Ninth Circuit’s Decision in Demers v. Austin

This month, the Ninth Circuit, in Demers v. Austin (PDF), No. 11-35558 (9th Cir. Sept. 4, 2013), agreed with the proposition that Garcetti should not apply to a university professor’s teaching and scholarship.

In Demers, a tenured associate professor, suing under section 1983 for damages and injunctive relief, claimed that the defendant university administrators retaliated against him in violation of the First Amendment because he distributed a short pamphlet and drafts from an in-progress book. The pamphlet, which dealt critically with a reorganization plan at the university. was distributed both internally and to the print and broadcast media as well as published on a website. In addition, the plaintiff attached drafts of his in-progress book, which included material critical of the University, on his application for sabbatical. The defendants argued that the pamphlet and the drafts were written and circulated as part of the plaintiff’s official duties and were therefore not protected by the First Amendment under Garcetti.

Rejecting that argument, the Ninth Circuit, opinion by Judge W. Fletcher, declared broadly:

“We hold that Garcetti does not apply to teaching and writing on academic matters by teachers employed by the state. Rather, such teaching and writing by publicly employed teachers is governed by Pickering v. Board of Education, 391 U.S. 563 (1968).” The Ninth Circuit emphasized the importance of academic freedom for teaching and writing, particularly at the university level.

Here, according to the Ninth Circuit, the pamphlet addressed a matter of public concern within the meaning of Pickering and was protected by the First Amendment. The district court therefore erred in granting summary judgment to the defendants on this issue. On the other hand, there was insufficient evidence to show that the in-progress book drafts triggered any retaliation.

Still, the defendants won on the plaintiff’s section 1983 damages claim because the defendants were entitled to qualified immunity given the uncertain state of the law after Garcetti. However, on remand, the district court should address the propriety of the plaintiff’s section 1983 injunctive relief claim.

Comments

1. The pamphlets were distributed to the public as well as internally, thereby triggering Pickering directly. Thus, there might have been no need for the Ninth Circuit to address the applicability of Garcetti: the plaintiff, at least in part, wrote as a citizen, and not as an employee.

2. The drafts of the in-progress book were not a motivating factor in the alleged retaliation against the plaintiff. Thus, strictly speaking, the Ninth Circuit’s language about Garcetti‘s inapplicability to writing (in the sense of scholarship) was dictum. The pamphlets were not scholarship.

3. Nevertheless, this decision overall is sound in its emphasis on the First Amendment protection of a college or university professor’s teaching and scholarship.

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September 16, 2013 at 1:14 pm

Posted in First Amendment

First Amendment Retaliatory Arrest Decisions After Reichle

I blogged on March 29, 2012, about the Supreme Court‘s grant of certiorari in Reichle v. Howards,  a case arising out of the Tenth Circuit. The Supreme Court had granted certiorari to deal with the important question of whether there should be a probable cause defense to a Bivens First Amendment claim that federal law enforcement officers arrested the plaintiff because of their disagreement with his speech.

That post should be consulted for relevant background, including the important decision in Hartman v. Moore, 547 U.S. 250 (2006). Note also that the answer to the question will apply equally to section 1983 claims.

On June 4, 2012, the Court, in an opinion by Justice Thomas, avoided the merits and ruled instead that the defendants were protected by qualified immunity. See my post of June 13, 2012, analyzing the decision.

I came across the following post-Reichle decisions from the Fourth, Seventh and Ninth Circuits as I was preparing the 2013 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed.)(West)(available on Westlaw at CIVLIBLIT).

Note that, of these circuits, only the Ninth Circuit has taken the position that probable cause is not a defense.

Fourth Circuit

In Tobey v. Jones, 706 F.3d 379 (4th Cir. 2013), the plaintiff alleged that he was retaliated against by Transportation Security Agency (TSA) agents in violation of the First Amendment when they seized and arrested him at an airport for displaying the text of the Fourth Amendment on his chest. According to the Fourth Circuit, the defendants were not entitled to qualified immunity because it was clearly settled in September 2010 that the First Amendment protected peaceful non-disruptive speech in an airport and that such speech could not be punished because government disagreed with it. A case on all fours was not required. In addition, the Supreme Court’s decision in Reichle v. Howards was distinguishable because here the plaintiff specifically alleged that his arrest was not supported by probable cause.  Judge Wilkinson dissented, 706 F.3d 379, 394, arguing that this airport security case was an especially appropriate one justifying the applicability of qualified immunity.

Seventh Circuit

The Seventh Circuit, following Reichle, held that the defendant police officers who allegedly arrested the plaintiff because of what he said, even though there was probable cause for the arrest, were protected by qualified immunity. Thayer v. Chiczewski, 705 F.3d 237 (7th Cir. 2012). The Seventh Circuit also noted that the First Amendment retaliation/probable cause issue was unresolved in its circuit.

Ninth Circuit

In contrast to the Seventh Circuit in Thayer, the Ninth Circuit stated that it was adhering to its earlier position in Skoog v. County of Clackamas, 469 F.3d 1221 (9th Cir. 2006), that an arrestee has a “First Amendment right to be free from police action motivated by retaliatory animus, even if probable cause existed for that action.” Ford v. City of Yakima, 706 F.3d 1188 (9th Cir. 2013). The plaintiff alleged that the defendant officers violated his First Amendment rights when they booked and jailed him in retaliation for his protected speech—criticizing them for an allegedly racially motivated traffic stop—even though there was probable cause for the initial arrest. The Ninth Circuit also went on to rule that the defendants violated clearly settled law in July 2007 and were thus not entitled to qualified immunity.

Judge Callahan dissented, arguing, first, that the Ninth Circuit’s precedents did not necessarily apply after an arrestee has been detained, and second, that the defendants did not violate clearly settled law “forbidding an officer from considering the comments of a legally detained individual when determining whether to book the individual.” 706 F.3d, at 1197.

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August 30, 2013 at 4:22 pm

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