Local Governments Win Cell Tower Supreme Court Case – For the Most Part

cell towerThe City of Roswell lost its case before the Supreme Court regarding cell phone tower approval on what some might describe as a mere technicality – but overall, local governments won. (Getty Images)

In T-Mobile South v. City of Roswell, the Supreme Court held 6-3 that the Telecommunications Act (TCA) requires local governments to provide reasons when denying an application to build a cell phone tower. The reasons do not have to be stated in the denial letter but must be articulated “with sufficient clarity in some other written record issued essentially contemporaneously with the denial,” which can include the council meeting minutes.

The Court agreed with the position in the State and Local Legal Center (SLLC)’s amicus brief that the reasons for a local government’s decision need not be in the same letter or document that denies the application, and that council meeting minutes can be a sufficient source for the reasons for the denial. The Court disagreed, however, with the SLLC’s argument that the council minutes need not be issued contemporaneously with the document denying the wireless provider’s application.

T-Mobile applied to construct a 108-foot cell tower in a residential zoning area. Two days after a council hearing on the application, where city councilmembers voted to deny the application and stated various reasons for why they were going to vote against it, Roswell sent T-Mobile a brief letter stating that the application was denied and that T-Mobile could obtain hearing minutes from the city clerk. Twenty-six days later the minutes were approved and published.

The TCA requires that a state or local government’s decision denying a cell tower construction permit be “in writing and supported by substantial evidence contained in a written record.”

The majority of the Court, in an opinion written by Justice Sotomayor, held that local governments have to provide reasons for why they are denying a cell tower application so that courts can determine whether the denial was supported by substantial evidence. The Court rejected, however, T-Mobile’s argument that the reasons must be set forth in a formal written decision denying the application instead of council meeting minutes because nothing in the TCA “imposes any requirement that the reasons be given in any particular form.” But the Court also held that, because wireless providers have only 30 days after an adverse decision to seek judicial review, the council meeting minutes setting forth the reasons have to be issued “essentially contemporaneous[ly]”with the denial.

The Court’s ruling that written minutes can meet the TCA’s “in writing” requirement is favorable to local governments, many of which routinely compile meeting minutes regardless of whether a cell tower application is being considered. But the Court’s requirement that a local government issue a denial letter and minutes at more or less the same time will be new to many local governments, and, as Chief Justice Roberts points out in his dissenting opinion, “could be a trap for the unwary hamlet or two.”

Following this decision, local governments should not issue any written denial of a wireless siting application until they (1) set forth the reasons for the denial in that written decision, or (2) make available to the wireless provider the final council meeting minutes or transcript of the meeting at which the action was taken.

The Roberts’ Court has been frequently characterized as “pro-business.” Justice Roberts’ dissent belies that viewpoint.  His opinion repeatedly refers to T-Mobile’s savvy and culminates in this sarcastic assessment of how T-Mobile likely suffered no harm by receiving the minutes after the denial: “T-Mobile somehow managed to make the tough call to seek review of the denial of an application it had spent months and many thousands of dollars to obtain, based on a hearing it had attended.”

Tim LayJessica Bell, and Katharine Mapes of Spiegel & McDiarmid in Washington, D.C., wrote the SLLC’s brief which was joined by the National League of Cities, the United States Conference of Mayors,  the National Association of Counties, the International City/County Management Association, and the International Municipal Lawyers Association.

Lisa Soronen bio photoAbout the Author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

NLC Joins Amicus Brief Contemplating Fourth Amendment Challenges

hotel registryAt issue in this particular amicus brief is the question of whether or not police should be allowed to inspect hotel registries without first obtaining a warrant. (Getty Images)

The State and Local Legal Center’s (SLLC) Supreme Court amicus brief in Los Angeles v. Patel, which the National League of Cities joined, makes a number of traditional amicus arguments: it asks the Court to not rule that state and local governments can be sued for yet another thing; it points out that, if a ruling against the city is established in this case, many other cities and states will be affected; and it states that a ruling against the city will likely impact many similar but unrelated statutes and ordinance.

Los Angeles v. Patel concerns a Los Angeles city ordinance which requires hotel and motel operators to keep specific information about their guests and allows police to inspect guest registries without warrants. Motel operators claim this ordinance is facially invalid under the Fourth Amendment. The Ninth Circuit Court agreed, stating that the ordinance fails to expressly provide for pre-compliance judicial review before police can inspect the registry.

The State and Local Legal Center (SLLC) filed a Supreme Court amicus brief in Los Angeles v. Patel arguing that Fourth Amendment facial challenges should be disfavored, and that if the ordinance in this case is unconstitutional, similar hotel registry ordinances across the country—and laws and ordinances requiring record keeping and inspection of other businesses—may be unconstitutional as well.

A facial challenge to the ordinance in this case requires a court to determine whether all searches that might be conducted pursuant to the ordinance are unconstitutional (as opposed to an as-applied challenge where the court would decide whether a particular search under the ordinance violates the Fourth Amendment).

The SLLC argues that Fourth Amendment facial challenges don’t make sense, because whether a search violates the Fourth Amendment depends on whether it is reasonable, which is necessarily a fact-based determination. Under some set of facts, almost any search would be reasonable. For example, depending on the facts, warrantless searches of hotel registries could be reasonable under the “community care-taking exception,” because the registry is “in plain view,” or because of “exigent circumstances.”

The SLLC’s brief notes that hotel registry ordinances are very common and all may be invalidated if the Court concludes Los Angeles’s ordinance violates the Fourth Amendment. Los Angeles cites two state laws (Maine, Massachusetts) and over 100 hotel registry ordinances from 28 states. The SLLC’s brief points out that at least 70 California cities have such ordinances, as do cities in 15 additional states.  Finally, in many states mobile home parks, second-hand dealers like pawnshops and junkyards, scrap metal dealers, and massage parlors are subject to registration and inspection laws and ordinances. These measures may be called into question if Los Angeles’s hotel registry ordinance is struck down.

Tom McCarthyWilliam Consovoy, and Michael Connolly of Consovoy McCarthy and the George Mason University School of Law Supreme Court Clinic wrote the SLLC’s brief, which was joined by the National League of Cities, the National Association of Counties, the International City/County Management Association, the United States Conference of Mayors, and the International Municipal Lawyers Association.

Lisa Soronen bio photoAbout the Author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

Heien v. North Carolina—A Win, But Not a Free Pass

traffic stop 2If you were arrested for a crime as the result of a traffic stop, the Supreme Court has ruled that your subsequent court decision can be upheld even if a police offer made a reasonable mistake in pulling you over. (Getty Images)

In Heien v. North Carolina, the Supreme Court held that a reasonable mistake of law can provide reasonable suspicion to uphold a traffic stop under the Fourth Amendment.

The ruling stems from an incident in which a police officer pulled over a car that had only one working brake light because he believed that North Carolina law required both brake lights to work. The North Carolina Court of Appeals, interpreting a statute over a half a century old, concluded only one working brake light is required.

When the vehicle’s occupants behaved suspiciously, the officer asked to search the car. The occupants consented, and the officer found cocaine. The owner of the car subsequently argued that the stop violated the Fourth Amendment because driving with one working brake light doesn’t violate North Carolina law.

The Supreme Court has long held that reasonable mistakes of fact do not undermine Fourth Amendment searches and seizures. Justice Roberts reasoned in this 8-1 decision: “Whether the facts turn out to be not what was thought, or the law turns out to be not what was thought, the result is the same: the facts are outside the scope of the law. There is no reason, under the text of the Fourth Amendment or our precedents, why this same result should be acceptable when reached by way of a reasonable mistake of fact, but not when reached by way of a similarly reasonable mistake of law.”

The Court emphasized that mistakes of law (and fact) must be objectively reasonable, and that this inquiry is not as forgiving to the officers as the qualified immunity inquiry (qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law”). The Court concluded that the officer’s mistaken understanding of North Carolina law in this case was objectively reasonable. As Justice Kagan pointed out in her concurring opinion, the officer’s mistaken interpretation “had much to recommend it.”

Justice Sotomayor’s dissenting opinion predicts that lower courts will have difficulty determining which mistakes of law are objectively reasonable. If the ruling is indeed followed by lower courts, Justice Kagan’s opinion, which was joined by Justice Ginsburg, should assuage some of Justice Sotomayor’s concern as well as indicate that this decision isn’t a free pass for law enforcement to fail to learn the law. Justice Kagan opines that relying on incorrect memos or training programs isn’t objectively reasonable, and that only mistakes made based on “very hard questions of statutory interpretation” should be considered as such.

Lisa Soronen bio photoAbout the Author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

Supreme Court Accepts Affordable Care Act Case

Last month, the Supreme Court’s docket went from boring to big with the grant of just one case: King v. Burwell. The issue in this case is whether tax credits for low and middle income health insurance purchasers are available under the Affordable Care Act (ACA) if insurance is purchased on a federal exchange rather than a state exchange. Only 16 states and the District of Columbia have established exchanges.

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The ACA makes tax credits available to those who buy health insurance on exchanges “established by the State.” The Internal Revenue Service (IRS) interpreted that language to include insurance purchased on federal exchanges as well.

The Fourth Circuit upheld the IRS’s interpretation of King v. Burwell, concluding that the phrase “established by the State” is ambiguous when read in combination with other sections of the ACA, and could include federal exchanges. The “board policy goals of the Act,” persuaded the court that the IRS’s interpretation was permissible.

The implications of the Supreme Court ruling that health insurance purchased on federal exchanges is not eligible for subsidies is huge. Many people who want to buy insurance on the exchange would no longer be able to afford it without the subsidy. And depending on their income, many who don’t want to buy insurance would no longer be subject to the individual mandate that penalizes people for not buying insurance. Similarly, large employers that don’t offer health insurance to fulltime employees would no longer have to pay a penalty.

More significantly, the Fourth Circuit (and many others) predict the ACA would “crumble” if tax credits are unavailable on federal exchanges. The ACA bars insurers from denying coverage or charging higher premiums based on a person’s health. The tax credit combined with the individual mandate was intended to create “an influx of enrollees with below-average spending for health care,” which would counteract adverse selection, where individuals disproportionately likely to use health care drive up the cost. Such an influx is unlikely without the subsidy.

The Supreme Court generally hears cases when there is a circuit split, meaning two federal courts of appeals have decided the same issue differently. Many were surprised when the Court agreed to hear this case given there is currently no circuit split, especially considering that last month the Court refused to hear a series of cases challenging the constitutionality of same-sex marriage bans. However, the Court also accepts cases involving “important question[s] of federal law,” which this case seems to raise.

On the same day in July, a three-judge D.C. Circuit panel ruled opposite to the Fourth Circuit Court on this issue. The entire D.C. Circuit was going to re-hear the case, but it has been asked not to rule prior to Supreme Court resolution of King v. Burwell.

Wondering how the Supreme Court may rule? SCOTUSblog offers an excellent symposium on this topic.

Lisa Soronen bio photoAbout the Author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

This Case Isn’t (Only) About a Confederate Flag License Plate

confederate flag license plate
If it were displayed on a specialty license plate, would you consider the image of a Confederate flag to be an expression of government speech or private speech? (Texas Department of Motor Vehicles)

In Walker v. Texas Division, Sons of Confederate Veterans, the Texas Department of Motor Vehicles Board rejected the Texas Division of the Sons of Confederate Veterans’ (Texas SCV) application for a specialty license plate featuring images of the Confederate Flag. The Supreme Court will decide whether this violates the First Amendment.

This case may have implications beyond the specialty license plate context. Lower courts have struggled to determine whether government websites, advertisements on city buses, memorial bricks and tiles at public schools, etc. are government speech or private speech.

Texas allows nonprofits to propose license plate designs for state approval. Texas SCV applied for a specialty plate featuring its logo, a Confederate flag framed on all four sides with the words “Sons of Confederate Veterans 1896,” and a faint Confederate flag in the background. The Board voted unanimously against the plate because it received numerous public comments objecting to it.

The Fifth Circuit ruled in favor of Texas SCV. It held that specialty license plates are private speech, not government speech. It also held that rejecting Texas SCV’s plate was impermissible viewpoint discrimination and not a permissible content-based regulation.

The majority of the court concluded the speech in this case was private, applying the “reasonable observer test” test from Pleasant Grove City, Utah v. Summum, 555 U.S. 467 (2009), where the Court held that monuments in a public park are government speech. While governments have historically used monuments “to speak to the public” in parks, a reasonable observer would understand that specialty plates are private speech because “states have not traditionally used license plates to convey a particular message to the public.” A dissenting judge argued that Summum did not adopt a “reasonable observer test” for government speech and that, for purposes of First Amendment analysis, monuments at public parks are very analogous to specialty license plates.

The entire court agreed that the Board engaged in impermissible viewpoint discrimination because it “discriminated against Texas SCV’s view that the Confederate flag is a symbol of sacrifice, independence, and Southern heritage.” Rejecting the plate was not a permissible content-based regulation, even under the assumption that Texas bans all viewpoints on the Confederate flag. “Silencing both the view of Texas SCV and the view of those members of the public who find the flag offensive would similarly skew public debate and offend the First Amendment.”

Interestingly, the Court did not grant review in Berger v. ACLU of North Carolina. The issue in that case is whether North Carolina may offer a “Choose Life” specialty license plate without offering a pro-choice plate.

Lisa Sorenen bio photoAbout the Author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

Supreme Court Rules No Pay for Passing Through Security Screenings

The Supreme Court has ruled that these employees are not required to be compensated for their time spent submitting to security screenings at work. (Getty Images)

Jesse Busk and Laurie Castro worked at warehouses filling Amazon.com orders. Their employer, Integrity Staffing Solutions, Inc., required its hourly workers to undergo a security screening before leaving the warehouse each day. Busk and Castro claimed that they were entitled to compensation for this time, and subsequently took their argument to court.

In the case of Integrity Staffing Solutions v. Busk, the Supreme Court ruled unanimously that the Fair Labor Standards Act (FLSA) does not require hourly employees to be paid for the time they spend undergoing security screenings. The ruling has significant impact on employers as well as employees working in courthouses, correctional institutions and other environments where security screenings are prevalent.

Under the FLSA, employers only have to pay “non-exempt” employees for preliminary and postliminary activities that are “integral and indispensable” to a principal activity. According to the Court, an activity is “integral and indispensable” to a principal activity “if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities.” The Court concluded that security screenings were not intrinsic to retrieving and packing products, and that Integrity Staffing Solutions could have eliminated the screenings altogether without impairing employees’ ability to complete their work.

The SLLC’s amicus brief made similar arguments to those the Court adopted. This case is a significant victory for local governments who will now not be faced with higher payroll costs for employee security screenings or a mandate to reduce screenings to a de minimis amount.

James Ho, Ashley Johnson and Andrew LeGrand, of the law firm Gibson, Dunn & Crutcher in Dallas, TX, wrote the SLLC’s brief, which was joined by the National League of Cities, the National Association of Counties, the International City/County Management Association, the U.S. Conference of Mayors, the International Municipal Lawyers Association, the Government Finance Officers Association, the National Public Employer Labor Relations Association and the International Public Management Association for Human Resources.

Lisa Soronen bio photoAbout the Author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

First (Only?) Environmental Case of the Supreme Court’s Term is a Big One

power plantThis coal-fired power plant is excited to receive its 15 minutes of fame when the Supreme Court rules on a complex environmental case later this term. (Getty Images)

The consolidated cases of Michigan v. Environmental Protection Agency, Utility Air Regulatory Group v. Environmental Protection Agency and National Mining Association v. Environmental Protection Agency challenge a 2012 Environmental Protection Agency (EPA) regulation intended to limit mercury and other emissions from mostly coal-fired power plants.

Before regulating emissions from electric utilities, the Clean Air Act (CAA) requires the EPA Administrator to find that regulation is “appropriate and necessary” based on a public health hazards study. The simple legal question in this complicated case is whether the EPA unreasonably refused to consider costs in making its determination that regulation was “appropriate.”

In 1990 Congress required the EPA to identify stationary sources for 189 hazardous air pollutants and adopt maximum achievable control technology standards (MACT) for limiting their emissions. But the CAA regulates emissions from electric utilities differently than from other stationary sources. Before the EPA may regulate electric utilities under the MACT program, it must perform a health hazards study and determine whether regulation of them is appropriate and necessary.

In 2000, the EPA determined it would regulate mercury and other emissions from electric utilities, but it reversed course in 2005. Then in 2012, the agency issued the final rule challenged in this case which concluded that regulating electric utilities was appropriate and necessary. The EPA “rejected the 2005 interpretation that authorizes the Agency to consider other factors (e.g., cost).”

The D.C. Circuit agreed with the EPA that it was not required to consider costs. “Appropriate” isn’t defined in the relevant section of the CAA and dictionary definitions of the term don’t mention costs.  Throughout the CAA “Congress mentioned costs explicitly where it intended the EPA to consider them.”

A dissenting judge pointed that the cost of regulation in this case is nearly $10 billion dollars annually and opined that the cost of complying will “likely knock a bunch of coal-fired electric utilities out of business and require enormous expenditures by other coal- and oil-fired electric utilities.”

States are involved in this case on both sides. During its last term, the Supreme Court ruled on two significant Clean Air Act cases: EPA v. EME Homer City Generation, involving the CAA’s Good Neighbor Provision, and Utility Air Regulatory Group v. EPA, involving greenhouse gases and stationary sources.

Lisa Sorenen bio photoAbout the Author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

Must All Signs Be Treated the Same?

Update: the Supreme Court heard oral arguments for this case on Monday, January 12, 2015.

yard sale signMunicipal codes treat signs differently, meaning that spray-painted signs like this might not be allowed to remain in your neighbor’s yard for longer than necessary. (Getty Images)

The Supreme Court’s decision in the case of Reed v. Town of Gilbert, Arizona could upset sign codes nationally. Most sign codes, like Gilbert’s, include different categories of temporary signs. It makes sense, for example, to give people more time to remove thousands of election signs and less time to remove a few yard sale signs. In this case, the Court will decide whether local governments may regulate temporary directional signs differently than other temporary signs.

Practically speaking, the Court could rule that all temporary signs must have the same time, place and manner requirements. NLC joined the State and Local Legal Center’s (SLLC) amicus brief asking the Court not to go that far.

Gilbert’s Sign Code includes temporary directional signs, political signs and ideological signs. After being notified that its temporary directional signs announcing the time and location of church services were displayed longer than allowed, the Good News church sued Gilbert. The church claimed Gilbert’s Sign Code violates the First Amendment because temporary directional signs receive the less favorable treatment (in terms of size, location, duration, etc.) than political signs and ideological signs.

The Ninth Circuit ruled that Gilbert’s Sign Code does not violate the First Amendment because the distinctions between the three sign categories are “content-neutral”; all signs in each category are treated the same regardless of their content even if the three categories of signs are treated differently. Because the lower court concluded that the sign categories are “content-neutral,” it applied intermediate scrutiny rather than strict scrutiny. The different treatment of temporary signs would not serve a “compelling” government interest as strict scrutiny requires, but does serve a “significant” government interest as intermediate scrutiny requires.

The SLLC’s amicus brief argues that Gilbert’s Sign Code does not violate the First Amendment. Sign codes with multiple categories of temporary signs are common; they are usually classified by function, with their own time, place and manner requirements. And the fact that a temporary sign must be read to determine what kind of temporary sign it is does not render a sign code “content-based.” Finally, even when the three categories of temporary signs at issue in this case are compared with each other, they are regulated by purpose, rather than by content, meaning strict scrutiny should not apply.

Bill Brinton of the law firm Rogers Towers wrote the SLLC’s brief, which was also joined by the National Association of Counties, the International City/County Management Association, the United States Conference of Mayors, the International Municipal Lawyers Association, the American Planning Association and Scenic America.

Lisa Soronen bio photoAbout the Author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

Does the ADA Apply to Arrests?

The Supreme Court has agreed to review a Ninth Circuit decision ruling that individuals with mental illnesses must be accommodated under the ADA when being arrested.

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The Fourth Amendment applies to arrests, no question about it.  What about the Americans with Disabilities Act (ADA)?  Specifically, do individuals with mental illnesses have to be accommodated under the ADA when being arrested?  The Ninth Circuit said yes and the Supreme Court has agreed to review its decision in City & County of San Francisco v. Sheehan.

When police officers entered Teresa Sheehan’s room in a group home for persons with mental illness she threatened to kill them with a knife she held, so they retreated.  When the officers reentered her room soon after leaving it, Sheehan stepped toward them with her knife raised and continued to hold it after the officers pepper sprayed and ultimately shot her.

Title II of the ADA provides that individuals with a disability must be able to participate in the “services, programs, or activities of a public entity,” and that their disability must be reasonably accommodated.

Sheehan argued that Title II of the ADA applies to arrests and that the officers should have taken her mental illness into account when reentering her room.  Her proposed accommodations included:  respecting her comfort zone, engaging in non-threatening communications, and using the passage of time to defuse the situation

The Ninth Circuit agreed with Sheehan that Title II of the ADA applies to arrests.  The ADA applies broadly to police “services, programs, or activities,” which the Ninth Circuit interpreted to mean “anything a public entity does,” including arresting people.  The court refused to dismiss Sheehan’s ADA claim against the city reasoning that whether her proposed accommodations are reasonable is a question of fact for a jury.

The Ninth Circuit also concluded that reentry into Sheehan’s room violated the Fourth Amendment because it was unreasonable.  Although Sheehan needed help, “the officers had no reason to believe that a delay in entering her room would cause her serious harm, especially when weighed against the high likelihood that a deadly confrontation would ensue if they forced a confrontation.”

State and local government officials can be sued for money damages in their individual capacity if they violate a person’s constitutional rights.  Qualified immunity protects government officials from such lawsuits where the law they violated isn’t “clearly established.”

The Ninth Circuit refused to grant the officers qualified immunity related to their reentry:  “If there was no pressing need to rush in, and every reason to expect that doing so would result in Sheehan’s death or serious injury, then any reasonable officer would have known that this use of force was excessive.”  The Court also has agreed to review the Ninth Circuit’s decision on qualified immunity.

Soronen_Pic (2)About the Author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

Supreme Court Opinions? Already?!

Despite being early in the term, the Supreme Court has already issued two opinions involving state and local government.

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As the Supreme Court’s term only began on October 6 it is a little early for the Court to be issuing opinions except in the instance of per curiam (unauthored) opinions where the Court didn’t hear oral argument.  The Court did just that this week.  Both of the cases involve state and local government.

In Carroll v. Carman the Court held that the Third Circuit improperly denied qualified immunity to a police officer who “knocked and talked” to a homeowner at his back door, rather than his front door, without a warrant.

The “knock and talk” exception to the Fourth Amendment’s warrant requirement allows police officers to knock on a resident’s door and speak to its inhabitants as any other person would.  Officer Carroll knocked on the Carmans’ back door, which he described as looking like a customary entryway, in search of a man who had stolen a car and two loaded guns.

State and local government officials can be sued for money damages in their individual capacity if they violate a person’s constitutional or federal statutory rights. Qualified immunity protects government officials from such lawsuits where the law they violated isn’t “clearly established.”

The Court concluded that it wasn’t clearly established that the “knock and talk” exception only applied to knocks at the front door.  The only circuit precedent the Third Circuit pointed to didn’t hold that knocking on the front door is required before officers go onto other parts of the property open to visitors.  And other federal and state courts rejected the Third Circuit’s approach.

Notably the Court declined to decide the underlying legal issue in this case of whether police can “knock and talk” at any entrance open to visitors rather than only the front door.

In Johnson v. City of Shelby, Mississippi the Court held that police officers did not have to invoke 42 U.S.C. § 1983 in their constitutional claim against Shelby.

42 U.S.C. § 1983 is a vehicle for private parties to sue state and local governments for constitutional violations.  In this case police officers alleged in their complaint that the city’s board of aldermen fired them for bringing to light the criminal activities of one alderman in violation of their Fourteenth Amendment due process rights.

The Fifth Circuit dismissed the officers’ complaint because they didn’t invoke § 1983 reasoning that “[c]ertain consequences flow from claims under § 1983, such as the unavailability of respondeat superior [employer] liability, which bears on the qualified immunity analysis.”  The Supreme Court pointed out that the Fifth Circuit was confused in its perception of the officers’ suit which was against the city; unlike a municipal officer, a city cannot invoke qualified immunity.  More generally, the Court stated that federal pleading rules don’t require a complaint to be dismissed because it imperfectly states the legal theory supporting it.

Soronen_Pic (2)About the Author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.