Know Your Constitution (3): Myths About the Supreme Court
(Author’s note. Over ten years ago I published a series of posts on different constitutional topics entitled “Know Your Constitution.” I believe that this series, intended for the general public, law students and attorneys, merits re-publishing in these perilous and divisive times when constitutional norms are being challenged at every level. So that’s what I’m doing, one post at a time, with revisions and updates where appropriate.)
I recently blogged regarding two myths about the Constitution. That post was the second in my series, “Know Your Constitution,” which is intended for a general audience.
This is the third in the series and it addresses three myths about the Supreme Court with a minimum of legal jargon.
The First Myth. The Supreme Court’s primary function is to do justice.
Reality. The Supreme Court’s primary function is to interpret the Constitution and federal statutes. These interpretations become the supreme law of the land. The Court’s function is not necessarily to do justice in individual cases.
Of course, there are times when interpretations of particular constitutional provisions are considered by many to be just. For example, the equal protection clause of the Fourteenth Amendment, which prohibits racial and other kinds of discrimination by government, is considered to be a just constitutional provision because it is based on the concept of equality.
Another example is the due process clause and its application in criminal cases. Due process has been interpreted to include concepts of justice and fairness so as to protect the rights of criminal defendants to an unbiased court, to confrontation and cross-examination, to be free from self-incrimination, to an attorney, and so on.
What is most important to remember, though, is that Supreme Court decisions are not necessarily just or moral. A Supreme Court decision can uphold an unjust federal or state law as constitutional. For example, the Court in Plessy v. Ferguson unfortunately upheld separate but equal in the racial setting at the end of the 19th century. It thereby perpetuated Jim Crow laws until Brown v. Board of Education was handed down in 1954.
On the other hand, a Supreme Court decision can rule that a wise and just federal or state law is unconstitutional. For example, the Supreme Court struck down the Violence Against Women Act in United States v. Morrison at the beginning of this century.
The Second Myth. The Supreme Court is a political body like Congress and the President.
Reality. The Supreme Court is the only branch of the national government that is not directly politically accountable to the electorate. The justices have lifetime tenure once appointed in order to insulate them from political pressure. To demonstrate how important judicial independence is, consider that the Court’s rulings are typically complied with on a voluntary basis by those affected. Al Gore’s concession to George Bush after the Court’s ruling in Bush v. Gore is an excellent example of such voluntary compliance.
On the other hand, the justices are human beings who cannot help but be influenced by their upbringing and by contemporary political and social values. Consider, for example, the infamous Dred Scott and Plessy v. Ferguson decisions, where the justices could not distance themselves from their support for white supremacy.
Still, because the justices are not directly answerable to the electorate, it is an important part of their judicial function to avoid applying their personal values, to the extent possible, when they interpret the constitution.
The Third Myth. The Supreme Court simply makes up most of its constitutional decisions.
Reality. It’s much more complicated than that. Some constitutional provisions are very easy to apply because they are very specific. For example, the President must be a natural born citizen, over thirty-five years old and a resident of the United States for fourteen years.
Similarly, it is clear from the text of the Constitution that it is Congress that has legislative powers, it is the President who has executive powers and it is the Supreme Court that has judicial powers. There are many such examples.
In contrast, other provisions of the Constitution, because they are less clear inherently, necessarily require a fair amount of interpretation. What do freedom of speech, freedom of the press, freedom of religion, mean anyway? Does the Fourth Amendment prohibiting unreasonable searches and seizures apply to electronic surveillance, to the internet? The text of the Constitution and the history of these provisions often provide no clear answers; obviously the Framers never thought of media such as radio and television, or about electronic surveillance and the internet.
So what does the Court do? Until recently, the short answer was that the Court typically proceeded cautiously and developed the meaning of these and similar textual provisions on a case by case basis. Typically the justices would focus on the values implicit in the constitutional provision they were interpreting. They then asked whether and how to apply those values in the new situation confronting them.
However, a majority of the current Supreme Court has now adopted an approach called “originalism” that focuses on the history and tradition of the particular constitutional provision of concern. The Court has applied this approach (which really has varying meanings) to the Establishment Clause, the Second Amendment and the Due Process Clause (in overruling Roe v. Wade).
Both the earlier approach and the current “originalism” approach constitute what some call judicial restraint, and what others call judicial activism.
It must be acknowledged that both approaches give the justices as individuals, and the Supreme Court as an institution, a good deal of interpretive latitude on difficult constitutional interpretation questions. And it must also be admitted that this often generates a great deal of controversy, often of a politically partisan nature.
However, controversy is one of the inevitable costs of being a citizen in a democracy with a Supreme Court that interprets the Constitution. And it is a cost I’m willing to acknowledge and bear, even when I believe firmly that the Court has gotten it wrong.
Know Your Constitution (2): Myths About the Constitution
(Author’s note. Over ten years ago I published a series of posts on different constitutional topics entitled “Know Your Constitution.” I believe that this series, intended for the general public, law students and attorneys, merits re-publishing in these perilous and divisive times when constitutional norms are being challenged at every level. So that’s what I’m doing, one post at a time, with revisions and updates where appropriate.)
My preceding post, on the structure of our government, was the first in a series called “Know Your Constitution.” This series is intended to educate citizens, law students and attorneys about the Constitution and the Supreme Court with a minimum of legal jargon.
This post, the second in the series, addresses two commonly and erroneously held beliefs, or myths, about the Constitution.
The First Myth The Constitution is a sacred document or is at least divinely inspired.
Reality The Constitution was written by human beings (all men at the time) and is a product of Enlightenment thinking. The Constitution exemplifies the application of reason to self-government. The divine right of kings is emphatically rejected by the Constitution.
Notice that there is no reference whatever in the Constitution to a divine being. Religion is mentioned only in several places. One place is the First Amendment with its Establishment and Free Exercise Clauses. Another place is the prohibition against religious tests for political office. In other words, religion has its role, but that role is not in government.
Along these lines, to characterize the Constitution as deeply influenced by Judaism and/or Christianity, as many like to do, is simply incorrect historically. Traditional Judaism and Christianity had nothing to say about democracy. Also, many of the Framers were deists who believed that a divine being created the universe and nature with its “laws” but then bowed out of human affairs. In contrast, theists believe that a divine being revealed itself and remains concerned with, and involved in, human affairs.
However, it should be noted that a majority of the current Court approaches religion from a very different perspective and has reinvigorated the Free Exercise Clause at the expense of the Establishment Clause.
The Second Myth The Constitution, even if not divinely inspired, comes as close to being as perfect a document for self-government as is humanly possible.
Reality The Constitution is far from a perfect document.
The Framers were only human beings, although we are fortunate that they were very well educated, far-sighted and obsessed with forming a new kind of government that the world had never seen before. But they made mistakes. This is obvious if only because of the number of Constitutional Amendments that have been ratified—twenty-seven–including the Bill of Rights two years after the Constitution.
More seriously, the Constitution was almost fatally flawed from the beginning because of slavery. This word was never used in the Constitution—embarrassment, perhaps?–although there were three indirect references to it. I say “almost fatally flawed” because, as everyone knows, slavery led to the temporary breakup of the United States. It took an horrific Civil War and the Thirteenth, Fourteenth and Fifteenth Amendments to amend the Constitution and eliminate slavery once and for all. In a very real sense, the Civil War and these three Constitutional amendments finally brought the Constitution into line with the Declaration of Independence.
Next in the Series: Myths about the Supreme Court
Know Your Constitution (1): The Structure of Government
(Author’s note. Over ten years ago I published a series of posts on different constitutional topics entitled “Know Your Constitution.” I believe that this series, intended for the general public, law students and attorneys, merits re-publishing in these perilous and divisive times when constitutional norms are being challenged at every level. So that’s what I’m doing, one post at a time, with revisions and updates where appropriate.)
Constitutional Education for Citizens
United States citizens, in my view, have an obligation to understand their government, the Constitution that created it and the Supreme Court‘s role in interpreting the Constitution.
However, I’ve thought for a long time that we in the legal profession and the law schools do a mediocre job, at best, in educating the public about the United States Constitution and the Supreme Court.
What I would like to do in this and in succeeding posts is try to explain, with a minimum of legal jargon, the Constitution and the Supreme Court’s role in interpreting it. Of necessity, these posts will be selective. I cannot cover everything.
This first post addresses the basic structure of our government as created by the Constitution, including separation of powers, checks and balances and federalism.
What is Separation of Powers?
The first three articles of the Constitution create and set out the powers of the three branches of government.
First and foremost, Article I deals with Congress, the lawmaking branch, and its two houses, the Senate and the House of Representatives. All legislation must be passed by both houses in order to become law. Congress may only act pursuant to its enumerated powers.
Second, Article II deals with the President, elected every four years, who enforces the law and thereby exercises executive powers. The President also has primary responsibility for foreign affairs except insofar as Congress is the branch that declares war. All legislation that is passed by both houses must go to the President for his approval.
Third, Article III creates the Supreme Court, the only non-politically accountable branch, in which is vested the judicial power to decide cases and controversies brought before it. Much more about this in later posts.
What Are the Purposes of Separation of Powers?
These three articles thus allocate governmental powers to three branches in order to promote efficiency. But this separation of powers serves another very important purpose: to make it impossible for narrow special interests (called “factions”) to capture the national government. The Framers were concerned, one might say obsessed, with preventing tyranny at the national level.
The political theory was that even if one branch of the national government ever became the captive of a faction, the other branches could step in and stop it. It is for that reason that separation of powers is not absolute: the Framers also provided for checks and balances among the branches. For example, legislation cannot become law without the President’s approval (unless Congress overrides a Presidential veto). Also, legislation must be enforced by the President. Supreme Court justices, and federal judges generally, are nominated by the President and must be approved by the Senate.
When Congress or the President violates separation of powers, it is the Supreme Court that steps in (through litigation) to strike down the unconstitutional conduct. For example, in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)(the famous Steel Seizure Case), the Court struck down the attempt by President Truman to seize the country’s steel mills: this was an unconstitutional exercise by the President of legislative power.
What is Federalism?
The Constitution also sets out the relations between the national government and the States. There are limits to what the federal government can do, and there are limits to what the States can do. In addition, the Tenth Amendment provides that powers not delegated to the national government are reserved to the states or the people.
In the last thirty or so years especially, the Supreme Court has enforced federalism rather aggressively and has, somewhat controversially, several times struck down federal legislation enacted under the Commerce power (one of the enumerated powers) because it encroaches on the States. A good example is United States v. Lopez, 514 U.S. 549 (1995), which held violative of the Commerce Clause the Gun-Free School Zones Act of 1990.
What Are the Purposes of Federalism?
Federalism is intended to promote efficiency, democracy and experimentation. But another very important function, like that of separation of powers, is the prevention of tyranny. Under this theory, States can serve as buffers between individual citizens and a possibly tyrannical national government.
A Controversial Issue
Here is one very important, and controversial, question about federalism: to what extent has it been modified by the Civil War and the Thirteenth, Fourteenth and Fifteenth Amendments?
These Amendments gave Congress the power to enforce their provisions against the States and are based on the assumption that it is now the national government that is charged with protecting individual citizens from the tyranny of the States.
The question is whether this acknowledged change in federalism extends beyond the protections of Thirteenth, Fourteenth and Fifteenth Amendment rights to include the powers of Congress under the Commerce Clause, as well as the taxing and spending powers.
It is fair to say that a majority of the current Supreme Court believes the answer to this question is an emphatic NO. In other words, the Framers’ view of the importance of federalism in these other areas–commerce, taxing and spending–continues to govern despite the Thirteenth, Fourteenth and Fifteenth Amendments.
Cert Alert in City of Grants Pass v. Johnson: The Homeless, the Eighth Amendment and Section 1983
(Note: I originally posted this in November 2023 but am re-posting it with some modifications because the Supreme Court just granted certiorari on Friday, January 12, 2024, in Johnson v. City of Grants Pass, 50 F.4th 787 (9th Cir. 2022), amended and superseded on denial of reh’g en banc, 2023 WL 4382635 (9th Cir. 2023), cert granted, 144 S. Ct. — (2024), discussed below).
It is typically prisoners who bring §1983 Eighth Amendment claims for damages and prospective relief against prison officers and officials. But what of §1983 Eighth Amendment actions brought by non-prisoners such as the homeless who allege that they are punished either because of their status—see Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962), or because of their involuntary acts—see Powell v. State of Tex., 392 U.S. 514, 88 S. Ct. 2145, 20 L. Ed. 2d 1254 (1968)?
The 2006 Jones Decision
After an extensive analysis of these and other Supreme Court decisions, seventeen years ago a panel of the Ninth Circuit held in a subsequently vacated opinion (the case was settled) that the Eighth Amendment prohibits the enforcement of an ordinance criminalizing sitting, lying or sleeping on public streets at all times and in all places within the city limits of Los Angeles, as applied to homeless persons between 9 p.m. and 6:30 a.m., given the unavailability of shelters in the city.
The Ninth Circuit characterized the prohibited conduct as “an unavoidable consequence of being human and homeless without shelter in the City of Los Angeles.” Jones v. City of Los Angeles, 444 F.3d 1118, 1138 (9th Cir. 2006), opinion vacated, 505 F.3d 1006 (9th Cir. 2007). Judge Rymer dissented in Jones, 444 F.3d at 1138, arguing, among other things, that the Los Angeles ordinance punished conduct, not status.
The 2019 Martin Decision
Thirteen years later another panel of the Ninth Circuit, quoting Jones, reaffirmed in Martin v. City of Boise, 920 F.3d 584, 616 (9th Cir. 2019), that “the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter.” But Martin also clarified that a city is not required to provide “sufficient shelter for the homeless.”
The 2022 Johnson Decision
Then, in 2022, in Johnson v. City of Grants Pass, 50 F.4th 787 (9th Cir. 2022), amended and superseded on denial of reh’g en banc, 2023 WL 4382635 (9th Cir. 2023), yet another panel of the Ninth Circuit followed Martin and applied it to a putative class action suit brought by homeless persons successfully challenging the constitutionality of certain city anti-camping ordinances. Judge Collins dissented, 50 F.4th 787, 814, arguing that the majority’s decision was “egregiously wrong” because, even assuming Martin was still good law, the majority misread and misapplied Martin. Further, the majority disregarded class-certification principles.
Subsequently, the Ninth Circuit amended the majority’s opinion in Johnson when it denied rehearing en banc. This denial was accompanied by a dissent by Judge Collins who argued that both Martin and the decision in Johnson were wrong and should be overturned. It was further accompanied by lengthy statements of various judges defending or criticizing the denial of rehearing en banc, as well as by several opinions dissenting from the denial of rehearing en banc, including one by Judge Bress, joined by eleven other judges, which maintained that there was no Eighth Amendment violation here.
Comments
Many of the opinions in Johnson were quite spirited. This is not surprising given the divisive nature of the homelessness issue, especially in urban areas around the country. The overall flavor of the Ninth Circuit judges who disagreed on the merits with the majority in Johnson is perhaps captured by a part of Judge Bress’s opinion dissenting from denial of rehearing en banc:
“But on top of everything that our localities [including San Francisco] must now contend with, our court has injected itself into the mix by deploying the Eighth Amendment to impose sharp limits on what local governments can do about the pressing problem of homelessness …. With no mooring in the text of the Constitution, our history and traditions, or the precedent of the Supreme Court, we have taken our national founding document and used it to enact judge-made rules governing who can sit and sleep where, rules whose ill effects are felt not merely by the states and not merely by our cities, but block by block, building by building by building, doorway by doorway.”
Notice that the 2019 Martin case soundly determined that the Eighth Amendment on its own does not give rise to an affirmative duty to provide shelter to the homeless. Still, the deep issue here, in my view, is whether and to what extent §1983 Eighth Amendment litigation of this kind can realistically bring about any meaningful reforms. I suspect that, at most, it may prod legislative bodies to respond in some way. But I am skeptical that it can do much more than that. Ultimately, the remedies are political and require political will.
The Supreme Court will, either in this 2023 Term or in the 2024 Term, provide us with some answers to the Eighth Amendment issues raised. The Court has granted certiorari in City of Grants Pass v. Johnson to decide the following Question Presented:
“Whether the enforcement of generally applicable laws regulating camping on public property constitutes “cruel and unusual punishment” prohibited by the Eighth Amendment.”
You’re Invited to the 40th Annual Section 1983 Conference on April 18-19, 2024
A Personal New Year’s Day Post on Free Speech and Anti-Semitism
(I presented the following to my fellow congregants this past Saturday morning, Dec. 30, 2023, at the Lake Shore Drive Synagogue in Chicago. I like to think it may hold some interest for others as well.)
I want to ask your indulgence in allowing me to say a few words about Freedom of Speech: what Freedom of Speech is, what its purposes are and why as Jewish citizens of the United States we need to understand it.
Why here and now? People have been asking me about the First Amendment because of the fiasco involving the Congressional testimony of the presidents of Harvard, Penn and MIT. Also, because we are confronted by a surge in anti-Semitism here and abroad.
I. What is Freedom of Speech? Some basics.
The First Amendment to the United States Constitution, which created our republican form of government, declares that “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.”
1. The First Amendment applies to government at all levels, and it protects us from governmental regulation of speech, especially (but not only) our political speech. It does not ordinarily apply to governmental regulation of conduct. So that defacing someone’s property by spray-painting swastikas and anti-Semitic slogans is conduct that can be punished. Tearing down posters of Hamas-held hostages on private property is conduct that can be punished. Forcing Jewish students into a university library while pounding on the doors and windows is conduct that can be punished.
2. However, and this is an important takeaway, the First Amendment does not apply to the private sector, including social media, private corporations and private schools and universities. Meaning that they are not bound by First Amendment restrictions. (More about educational institutions below)
3. Like every other individual constitutional right, it is not absolute. There is no First Amendment right to say whatever you want, whenever you want and wherever you want.
Along these lines, here are three exceptions to the First Amendment that Jews (and all citizens) ought to know about.
3 (a). Government can punish an individual who, by speaking to others, intends to incite imminent illegal conduct such as physical violence where that imminent illegal conduct is likely to occur (the incitement to violence exception to the First Amendment). Example: a pro-Palestinian speaker in front of the Israeli consulate in Chicago exhorts a riled-up large group of protestors to burn the consulate down NOW. That speech is punishable whether or not the consulate is burned down.
3 (b). Government can punish an individual who threatens another with physical violence where the other person reasonably believes that such a threat has been made (the true threat exception to the First Amendment). Example: someone who knows my pro-Israel views, and whom I know and who lives near me, sends me an email threatening me with serious bodily harm the next time I leave my home.
3 (c). Government can punish an individual who utters what are called fighting words in a face to face verbal confrontation with another person: this is likely to lead to a breach of the peace or disturbing the peace (the fighting words exception to the First Amendment). Example: a pro-Palestinian protestor comes up to you in public—you’re holding an Israeli flag–and calls you a child-killing Nazi directly to your face.
7. However, offensive speech such as hate speech, standing alone and not involving incitement, true threats and fighting words, is protected under the First Amendment even though it can be incredibly hurtful, isolating and silencing. This protection is unique to the United States; many European countries criminalize hate speech for historical reasons. A possible advantage of protecting hate speech—some people may disagree—is that you know who your enemies are.
II. What’s it for? The purposes.
Our form of government is self-government through reason (a repudiation of government by divine right or by clerics).
The first important purpose of the First Amendment is therefore to protect us from governmental attempts to regulate and criminalize our political speech in order that we can meaningfully participate in self-government. We don’t want government regulating political content and viewpoint.
A second purpose of the First Amendment is to protect the marketplace of ideas—you’ve heard of this one–a kind of laissez faire approach to ideas. The hope is that competition among ideas will bring us closer to something approaching truth. We don’t want government skewing this marketplace by intervening and regulating content and viewpoint.
A third purpose is to promote the personal development of the individual intellectually, politically, culturally and artistically.
A fourth purpose is that speech functions as a safety valve. If people can criticize and protest government and powerful interests in the private sector, then there is less reason to turn to violence and revolution.
Underlying all four of these purposes is skepticism about, and deep suspicion of, government when it tries to regulate speech; namely, the fear of censorship.
III. Why are these basics about the First Amendment important for Jews in particular?
1. Jews have, for better or worse, had to develop a thick skin because of centuries of Jew-hatred. We know our history only too well. This thick skin has helped us to adjust somewhat during the current and shocking upsurge in anti-Semitism in the United States and elsewhere.
But First Amendment protection encourages us and those who are on our side to go on the offensive and to fight it out in the marketplace of ideas without government interference. Many thousands of individuals and Jewish groups have done this since October 7: getting the facts and our opinions out there in print and social media in a reasoned and persuasive way.
2. As I mentioned earlier, the First Amendment does not apply to private universities such as Harvard, Penn and MIT. So what about punishing students who march through their campuses advocating the genocide of Jews?
Such activity may be prohibited by Title VI of the 1964 Civil Rights Act which prohibits racial, color and national origin-based harassment and intimidation of students at private universities receiving federal funds. Title VI also requires the affirmative protection of students against such harassment and intimidation, which may go beyond what the First Amendment requires.
3. But what about academic freedom? My answer is that, even if the First Amendment does not technically apply, private institutions of higher education should be governed by academic freedom norms grounded on the First Amendment. They are not intellectual safe spaces concerned with protecting students from being offended; instead, students should be pushed intellectually.
On the other hand, academic freedom norms dictate that conduct must never interfere with the institution’s educational mission. Harassment and intimidation do in fact constitute such interference as well as being conduct. So is physically preventing invited speakers—whatever their political views–from addressing student groups. Such conduct goes well beyond being offensive and can violate Title VI when it occurs at a private university. And if we’re dealing with a public university governed by the First Amendment, this conduct can and should be punished by university officials and by law enforcement through suspension, expulsion and criminal prosecution.
4. One final takeaway: I want to emphasize the crucial difference between what is legal and what is moral and ethical, a difference that is all too often not taken account of, especially by non-lawyers. Constitutionality is not the same thing as morality. Just because one has a First Amendment or academic freedom right to speak out or protest in a particular way does not mean it is moral or ethical to do so. The First Amendment is not a shield from moral criticism and private censure.
The Harvard, MIT and Penn presidents could have emphasized that their “context” responses were primarily legal in nature and that students marching through campus advocating the genocide of Jews act in a clearly reprehensible and immoral way. They apparently did not do so.
In addition, these presidents almost certainly would have answered the legal question differently if it had involved hypothetical white students advocating the lynching of blacks, thus exposing the underlying hypocrisy of their position: the double standard that Bret Stephens identified so eloquently in the New York Times several weeks ago.
IV. Conclusion: where do we go from here?
The First Amendment gives us room to fight against Jew hatred in politics and in the marketplace of ideas without government interference. Jews will need their usual thick skin to do so effectively. At the same time government must stand with us and declare that Jew hatred is not acceptable any more than race, sex-based and sexual orientation hatred and discrimination are acceptable. This kind of declaration of support by government does not violate the First Amendment because it is not censorship.
Thank you.
Variable Constitutional States of Mind and Section 1983: Recent Examples
Different constitutional provisions have their own state of mind requirements. Even the same constitutional provision can have variable state of mind requirements depending on context. For example, in some situations the state of mind requirement for a due process violation is deliberate indifference, and in other situations it is purpose to do harm. Similarly, in some situations the state of mind requirement for an Eighth Amendment violation is deliberate indifference, and in other situations it is willful and wanton infliction of pain. On all of this and more, see generally chapter 3 in Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2023-24 ed.)(West/Westlaw).
In these cases and others, the state of mind requirement serves an important gatekeeper function that determines whether a plaintiff’s §1983 constitutional claim can go forward. It is therefore crucial for plaintiffs to argue for the lower or less culpable state of mind, while defendants will argue for the higher or more culpable state of mind.
Here are two examples, one from the Ninth Circuit where the defendants were successful, and the other from the Minnesota Supreme Court where the plaintiff was successful.
The Ninth Circuit’s Substantive Due Process Ochoa Decision
In Ochoa v. City of Mesa, 26 F.3d 1050 (9th Cir. 2022), the plaintiffs, who were relatives of an arrestee shot and killed by police officers during a standoff, alleged that their substantive due process rights protecting companionship and familial association were violated by the officers’ conduct.
Affirming the district court which ruled in favor of the defendants, the Ninth Circuit determined that the appropriate shocks the conscience test in this case was the purpose to do harm test—not deliberate indifference–because the officers did not have time to deliberate before they shot the decedent. This was an escalating situation involving a domestic dispute, possibly a gun, knives, erratic driving and a home invasion.
The Minnesota Supreme Court’s Eighth Amendment Welters Decision
In Welters v. Minnesota Dept. of Corrections, 982 N.W.2d 457, 472 (S. Ct. Minn. 2022), the plaintiff inmate sued corrections officers for violating his Eighth Amendment rights when, despite his continuing complaints, they allegedly improperly applied over-tightened handcuffs to him for over 3 ½ hours while transporting him for an endoscopy, and thereby caused him significant pain and permanent damage.
The Minnesota Supreme Court, reversing the trial court, ruled that the applicable Eighth Amendment standard here was deliberate indifference and not the malicious and sadistic standard: this case did not involve resolving a prison disturbance but rather implicated conditions of confinement and medical care. The court rejected the defendants’ argument that the malicious and sadistic standard applied “to any act taken to maintain general security [because it] would swallow even the day-to-day security measures taken as part of the conditions of confinement of prison life.” The Minnesota Supreme Court then concluded that as of July 31, 2017, a reasonable corrections officer would have known that such conduct violated the Eighth Amendment, so that the defendants here violated clearly settled law and were not entitled to qualified immunity.
Judge Gildea dissented, arguing that the proper Eighth Amendment standard in this case was the malicious and sadistic one which, when applied here, meant that the trial court’s decision granting summary judgment to the defendants should be affirmed. 982 N.W.2d 457, 485.
The Homeless, The Eighth Amendment & Judicial Limits: A Divided Ninth Circuit
It is typically prisoners who bring §1983 Eighth Amendment claims for damages and prospective relief against prison officers and officials. But what of §1983 Eighth Amendment actions brought by non-prisoners such as the homeless who allege that they are punished either because of their status—see Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962), or because of their involuntary acts—see Powell v. State of Tex., 392 U.S. 514, 88 S. Ct. 2145, 20 L. Ed. 2d 1254 (1968)?
The 2006 Jones Decision
After an extensive analysis of these and other Supreme Court decisions, a panel of the Ninth Circuit held seventeen years ago in a subsequently vacated opinion (the case was settled) that the Eighth Amendment prohibits the enforcement of an ordinance criminalizing sitting, lying or sleeping on public streets at all times and in all places within the city limits of Los Angeles, as applied to homeless persons between 9 p.m. and 6:30 a.m., given the unavailability of shelters in the city. The Ninth Circuit characterized the prohibited conduct as “an unavoidable consequence of being human and homeless without shelter in the City of Los Angeles.” Jones v. City of Los Angeles, 444 F.3d 1118, 1138 (9th Cir. 2006), opinion vacated, 505 F.3d 1006 (9th Cir. 2007). Judge Rymer dissented in Jones, 444 F.3d at 1138, arguing, among other things, that the Los Angeles ordinance punished conduct, not status.
The 2019 Martin Decision
Thirteen years later another panel of the Ninth Circuit, quoting Jones, reaffirmed in Martin v. City of Boise, 920 F.3d 584, 616 (9th Cir. 2019), that “the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter.” But Martin also clarified that a city is not required to provide “sufficient shelter for the homeless.”
The 2022 Johnson Decision
Then, in 2022, in Johnson v. City of Grants Pass, 50 F.4th 787 (9th Cir. 2022), amended and superseded on denial of reh’g en banc, 2023 WL 4382635 (9th Cir. 2023), yet another panel of the Ninth Circuit followed Martin and applied it to a putative class action suit brought by homeless persons successfully challenging the constitutionality of certain city anti-camping ordinances. Judge Collins dissented, 50 F.4th 787, 814, arguing that the majority’s decision was “egregiously wrong” because, even assuming Martin was still good law, the majority misread and misapplied Martin. Further, the majority disregarded class-certification principles.
Subsequently, the Ninth Circuit amended the majority’s opinion in Johnson when it denied rehearing en banc. This denial was accompanied by a dissent by Judge Collins who argued that both Martin and the decision in Johnson were wrong and should be overturned. It was further accompanied by lengthy statements of various judges defending or criticizing the denial of rehearing en banc, as well as by several opinions dissenting from the denial of rehearing en banc, including one by Judge Bress, joined by eleven other judges, which maintained that there was no Eighth Amendment violation here.
Comments
Many of the opinions in Johnson were quite spirited. This is not surprising given the divisive nature of the homelessness issue, especially in urban areas around the country. The overall flavor of the Ninth Circuit judges who disagreed on the merits with the majority in Johnson is perhaps captured by a part of Judge Bress’s opinion dissenting from denial of rehearing en banc:
“But on top of everything that our localities [including San Francisco] must now contend with, our court has injected itself into the mix by deploying the Eighth Amendment to impose sharp limits on what local governments can do about the pressing problem of homelessness …. With no mooring in the text of the Constitution, our history and traditions, or the precedent of the Supreme Court, we have taken our national founding document and used it to enact judge-made rules governing who can sit and sleep where, rules whose ill effects are felt not merely by the states and not merely by our cities, but block by block, building by building by building, doorway by doorway.”
Notice that the 2019 Martin case soundly determined that the Eighth Amendment on its own does not give rise to an affirmative duty to provide shelter to the homeless. Still, the deep issue here, in my view, is whether and to what extent §1983 Eighth Amendment litigation of this kind can realistically bring about any meaningful reforms. I suspect that, at most, it may prod legislative bodies to respond in some way. But I am skeptical that it can do much more than that. Ultimately, the remedies are political and require political will.
Chalking, Parking Tickets and the Fourth Amendment: The Ninth Circuit Disagrees
In Verdun v. City of San Diego, 51 F.4th 1033, 1035 (9th Cir. 2022), the Ninth Circuit stated:
“We are asked to decide whether the longstanding practice of chalking tires for parking enforcement purposes violates the Fourth Amendment. It does not. Even assuming the temporary dusting of chalk on a tire constitutes a Fourth Amendment ‘search,’ it falls within the administrative search exception to the warrant requirement. Complementing a broader program of traffic control, tire chalking is reasonable in its scope and manner of execution.”
The Ninth Circuit emphasized it assumed without deciding that chalking is a search. It also observed that it “respectfully” disagreed with the Sixth Circuit’s decision in Taylor v. City of Saginaw, 11 F.4th 483 (6th Cir. 2021), which took the position, among other things, that tire chalking is a search that is not subject to the administrative search exception. Consequently, according to the Sixth Circuit, chalking followed by a parking ticket violates the Fourth Amendment.
Judge Bumatay dissented, 51 F.4th at 1048, arguing that the original understanding of the Fourth Amendment demonstrates that the city’s chalking policy was both a “search” and “unreasonable.”
I discussed Taylor several years ago in a post which you may want to check out: https://nahmodlaw.com/2020/09/07/chalking-tires-parking-tickets-community-caretaking-and-the-fourth-amendment/
As noted, the Ninth Circuit here, unlike the Sixth Circuit in Taylor, did not have to decide the “search” issue because it ultimately ruled that even if chalking is a “search,” the Fourth Amendment is not violated.
Certiorari Granted in First Amendment Retaliatory Arrest Case: Gonzalez v. Trevino, No. 22-1079
The Supreme Court recently granted certiorari in Gonzalez v. Trevino, 42 F.4th 487 (5th Cir. 2022), cert granted, 143 S. Ct. — (2023), where the plaintiff, a former city council member, alleged that the individual defendants arrested her for illegally removing a government record in retaliation for the exercise of her First Amendment rights. Because the plaintiff conceded there was probable cause for the arrest, and because the plaintiff (according to the Fifth Circuit) did not introduce comparative objective evidence showing that otherwise similarly situated persons who did not engage in the same protected speech were not arrested, the Fifth Circuit affirmed the dismissal of her § 1983 First Amendment retaliation claim. She did not fit within the exception set out in Nieves v. Bartlett, 139 S. Ct. 1715 (2019): under this “narrow” exception, a First Amendment retaliatory arrest plaintiff has the opportunity to show that, even where there was probable cause to arrest, this is not a defense if the plaintiff can show through objective evidence that he or she was arrested when other similarly situated persons who did not engage in protected speech were not.
The Fifth Circuit also observed that it did not adopt what it characterized as the “more lax reading of the exception” that the Seventh Circuit purportedly articulated in Lund v. City of Rockford, Illinois, 956 F.3d 938 (7th Cir. 2020).
Judge Oldham dissented, 42 F.4th at 495, arguing that the plaintiff stated a § 1983 First Amendment retaliation claim after Nieves even though there was probable cause: Nieves did not require comparative evidence (often difficult if not impossible to obtain), only objective evidence. Moreover, in Judge Oldham’s view, the more relevant precedent was Lozman v. City of Riviera Beach, 138 S. Ct. 1945 (2018), where the plaintiff sued a city who, through its policymakers, allegedly had him arrested in retaliation for the exercise of his First Amendment rights. In Lozman, the Court ruled that the plaintiff had met his burden because he alleged an official policy or custom, which made this a very different case from those involving retaliatory arrest claims against police officers individually. In this regard, it was significant for Judge Oldham in Gonzalez that plaintiff brought her claim against individual conspirators which, as in Lozman, was very different from the typical retaliatory arrest claim.
Comments
Recall that Nieves held that a §1983 plaintiff alleging that he or she was arrested because of the exercise of First Amendment rights has the burden of pleading and proving the absence of probable cause for the arrest. I criticize Nieves in an earlier post for mangling §1983 and the First Amendment in order to protect law enforcement. See https://nahmodlaw.com/2019/06/04/nieves-v-bartlett-and-retaliatory-arrests-protecting-law-enforcement-at-the-expense-of-the-first-amendment-and-section-1983/
I also, at greater length, severely criticize Nieves and its reasoning at §3:13 of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2023-24 ed.)(West/ Westlaw).
But Nieves is the law, so the Supreme Court in Gonzalez is now tasked with the need to determine what the Nieves Court meant by its “narrow” exception: what evidence is required for a §1983 First Amendment retaliatory arrest plaintiff to overcome the existence of probable cause to arrest?
My prediction is that the Court will continue to make it quite difficult for §1983 plaintiffs in such cases to prevail. It will affirm the Fifth Circuit in Gonzalez and insist on the need for comparative evidence, just as it and the circuits do in class-of-one equal protection cases. See generally §3:85 of my Treatise for discussion of Village of Willowbrook v. Olech, 120 S. Ct. 1073 (2000) and for collected circuit court decisions.
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