SCOTUS Same-Sex Marriage Oral Argument: Proceed, or Wait and See?

Supreme Court facade(Getty Images)

Justice Kennedy has a lot to think about over the next two months when it comes to same-sex marriage.

His first question (third of the argument) raised an issue that was discussed throughout Mary Bonauto’s argument in favor of a constitutional right to same-sex marriage: for millennia (not years, decades, or even centuries), marriage has been between a man and a woman. Then Justice Breyer, ever the pragmatist, asked why states can’t just wait and see whether same-sex is harmful to traditional marriage. And should just nine people be deciding this question anyway?

For those worried that Justice Kennedy’s and Justice Breyer’s initial questions indicate they are skeptical of a constitutional right to same-sex marriage, more favorable questions laid ahead. Even in his question to Ms. Bonauto—and later in a question to the Solicitor General –Justice Kennedy pointed out that 10 years was enough time for the Court to go from desegregating schools to declaring bans on interracial marriage unconstitutional. Perhaps more significantly, Justice Kennedy questioned Michigan attorney John Bursch’s argument, against a constitutional right to same-sex marriage, that states don’t believe that marriage “enhances the dignity of both the parties.” Dignity was the theme of Justice Kennedy’s opinion in United States v. Windsor where the Court struck down the Defense of Marriage Act.

As for Justice Breyer, his question to Mr. Bursch provides one answer to Justice Kennedy’s first question, if not his own questions: “But there is one group of people who they won’t open marriage to. So they have no possibility to participate in that fundamental liberty. That is people of the same sex who wish to marry. And so we ask, ‘why?’ And the answer we get is, ‘well, people have always done it.’ You know. You could have answered that one the same way [when] we talk[ed] about racial segregation.”

The Court was hard to read when it came to the second question in the case: assuming states are allowed to keep same-sex marriage bans, will states without a right to same-sex marriage be required to recognize same-sex marriages lawfully preformed in other states. On one hand, states typically recognize marriages performed in other states even if state laws vary on who may marry. On the other hand, if “recognition” becomes the law of the land, just one state allowing same-sex marriages could mean, practically speaking, that all same-sex marriages (performed in the state allowing them) would have to be recognized.

Interestingly, Justice Kennedy asked only one question of the attorneys arguing the recognition question. Might this be the case because he has already decided to vote that same-sex marriage bans are unconstitutional? We may never know, but we will have a better idea by the end of June when the Court issues an opinion in this case.

Read more coverage of the oral argument in this case on SCOTUSblog: http://www.scotusblog.com/.

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.

Employers (and Employees) Win SCOTUS Employment Case

(Jung Soo Kang/Getty Images)

It is a rare Supreme Court case where employers and arguably employees both won (and the Court doesn’t “split the baby” and rule partially in favor of each party). In Mach Mining v. EEOC the only clear losing party is the Equal Employment Opportunity Commission (EEOC).

The Supreme Court held unanimously that a court may review whether the EEOC satisfied its statutory obligation to attempt to conciliate employment discrimination claims before filing a lawsuit.

The Court’s decision is favorable to employers, including state and local governments, who benefit from the EEOC’s statutory mandate to try to resolve employment discrimination cases before suing employers. If the EEOC fails to try to conciliate employers may sue the EEOC. Employees benefit from conciliation because it is faster and less demanding that litigation.

Title VII of the Civil Rights Act of 1964 requires the EEOC to use informal methods of “conference, conciliation, and persuasion” to eliminate an unlawful employment practice before it sues the employer for discrimination. In this case the EEOC found reasonable cause that Mach Mining discriminated against a class of women who applied for mining jobs. Mach Mining claimed that the EEOC failed to conciliate in good faith before suing it. The EEOC responded that its conciliation efforts are not subject to judicial review.

While the Court held that a court may review whether EEOC satisfied its obligation to conciliate, review is narrow. According to the Court, a “strong presumption” favors judicial review of administrative action. This presumption isn’t rebutted in this case because courts routinely enforce other compulsory prerequisite requirements to bringing a Title VII lawsuit, for example, a plaintiff must file a timely charge.

Regarding the scope of the court’s review, the EEOC argued the court should merely review its letters stating that it found reasonable cause of discrimination and that conciliation occurred and failed. Mach Mining argued for what Justice Kagan described as a “deep dive” into the conciliation process. The Court rejected both suggestions as inconsistent with Title VII. Instead, per the statutory requirements, a court should determine “that the EEOC afford[ed] the employer a chance to discuss and rectify a specified discriminatory practice.” Unless an employer provides credible evidence to the contrary, “[a] sworn affidavit from the EEOC stating that it has performed the obligations noted above but that its efforts have failed will usually suffice to show that it has met the conciliation requirement.”

While employers didn’t get everything they asked for in this decision, it is still a win for employers – and for employees who benefit from conciliation instead of litigation.

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 Holds No Dog Sniffs After Completed Traffic Stops

Drug sniffing dogs are a powerful law enforcement tool used by many city police departments. But may they be used after an already completed traffic stop? No, says a divided Supreme Court. (photo: LA Times)

In a 6-3 decision in Rodriguez v. United States, the Supreme Court held that a dog sniff conducted after a completed traffic stop violates the Fourth Amendment. In a dissent, Justice Alito describes the Court’s holding as “unnecessary, impractical, and arbitrary,” and suggests savvy officers can skirt it.

Officer Struble pulled over Dennys Rodriguez after he veered onto the shoulder of the highway and jerked back on the road. Officer Struble ran a records check on Rodriguez, then questioned his passenger and ran a records check on the passenger and called for backup, and next wrote Rodriguez a warning ticket. Seven or eight minutes passed between Officer Struble issuing the warning, back up arriving, and Officer Struble’s drug-sniffing dog alerting for drugs. Rodriguez argued that prolonging the completed traffic stop without reasonable suspicion in order to conduct the dog sniff violated the Fourth Amendment.

The Court agreed. It concluded that exceeding the time needed to handle the matter for which the traffic stop was made violated the Fourth Amendment. Justice Ginsburg, writing for the majority, relied on Illinois v. Caballes where the Court upheld a suspicionless dog search conducted during (not after) a lawful traffic stop. In that case the Court stated that a seizure for a traffic stop “become[s] unlawful if it is prolonged beyond the time reasonably required to complete [the] mission” of issuing a ticket for the violation. While officers may lengthen stops by checking a driver’s license and inspecting a vehicle’s registration and proof of insurance, those measures are taken to ensure that the vehicles on the road are operating safely. Likewise, officers may lengthen a stop by asking a driver to exit the vehicle for the officer’s safety. A dog sniff, however, is not aimed at officer or highway safety—it is aimed at discovering illegal drugs.

Justice Ginsburg ends her opinion by stating that the critical question “is not whether the dog sniff occurs before or after the officer issues a ticket… but whether conducting the sniff prolongs – i.e., adds time to – the stop.” This statement seems to be contradicted by – or at least avoidable per – Caballes, as Justice Alito suggests in his dissent: “The rule that the Court adopts will do little good going forward. It is unlikely to have any appreciable effect on the length of future traffic stops. Most officers will learn the prescribed sequence of events even if they cannot fathom the reason for that requirement. I would love to be the proverbial fly on the wall when police instructors teach this rule to officers who make traffic stops.”

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.

A Quick Look at All Local Government Cases on This Year’s Supreme Court Docket

Summary of all local government cases on the 2014-2015 Supreme Court docketThe Supreme Court’s 2014-2015 docket is now complete. While the same-sex marriage and Affordable Care Act cases will receive the most attention, the docket is chock-full of cases significant to local government. (Jung Soo Kang/Getty Images)

The State and Local Legal Center’s (SLLC) Midterm Review article summarizes all the cases accepted and already decided that will affect local government. Expect decisions in all the cases by the end of June.

Here are some highlights:

Reed v. Town of Gilbert, Arizona and Sheehan v. City & County of San Francisco are probably the most significant cases of the term for local government. Depending on how the Court rules, both could impact every city and county in the United States. The issue in Reed is whether sign codes may treat some categories of temporary signs more favorably than others. If the Court holds they cannot, virtually all local governments will have to rewrite their sign codes. In Sheehan the Court will decide whether the Americans with Disabilities Act applies to arresting a mentally ill suspect who is armed and violent.

The question in Los Angeles v. Patel is whether a hotel registry ordinance which allow police officers to inspect registries without a warrant violates the Fourth Amendment. Even if your city or county doesn’t have a hotel registry ordinance it is likely to be affected by this case. 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.

The Court has already decided one of the two Fourth Amendment traffic stop cases it will hear this term. In Heien v. North Carolina the Court held that a police officer’s reasonable misunderstanding that North Carolina required two working rear brake lights did not invalidate a traffic stop. In Rodriguez v. United States the Court will decide whether a police officer violated the Fourth Amendment by requiring a driver to stay a few minutes after an already-completed traffic stop to wait for back up before his canine performed a dog sniff.

In Texas Department of Housing and Community Affairs v. The Inclusive Communities Project the Court will decide whether disparate-impact claims can be brought under the Fair Housing Act. This is the third time the Court has agreed to hear this issue; the two previous cases settled. Local governments have found themselves on both sides of this issue.

Walker v. Texas Division, Sons of Confederate Veterans will be the Court’s second ruling on the newly-minted government speech doctrine. The Court will decide whether Texas can reject a specialty license plate featuring the Confederate Flag because license plates are “government speech.”

The Court will decide a number of employment cases this term including EEOC v. Abercrombie & Fitch. The issue is whether an employer can be sued for failing to accommodate an employee/applicant’s religion because the employer failed to ask if a religious accommodation was needed. Until this case the Equal Employment Opportunity Commission said the applicant/employee had to ask for a religious accommodation.

While the Court has been clear that the Fourteenth Amendment’s Due Process Clause prohibits excessive force against pretrial detainees the Court has not been clear about what exactly that means. In Kingsley v. Hendrickson the Court will articulate the substantive requirements for an excessive force claim brought by a pretrial detainee

T-Mobile South v. City of Roswell is one of the few local government cases already decided. The Court held that local governments must provide reasons when denying an application to build a cell phone tower. The reasons may be included in council meeting minutes issued at the same time as the denial letter.

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.

In ACA Argument, Justices Kennedy and Roberts Leave Everyone Guessing

Supreme Court facadeIn the case of Justice Kennedy, it was his questions; regarding Chief Justice Roberts, it was his silence… in both cases, cities were left guessing about the future of federal health insurance exchanges under the Affordable Care Act (ACA) after today’s oral argument. (Getty Images)

Today the Supreme Court heard oral argument in King v. Burwell, where it will decide whether federal health insurance exchanges, operating in 34 states, can offer subsidies to middle and low income purchasers of insurance under the Affordable Care Act (ACA).

Simply put, the Court must decide whether it agrees with the Internal Revenue Service (IRS) that the following statutory language, “established by the State,” can include federal exchanges too.

All eyes and ears were on Justice Kennedy and Chief Justice Roberts during the argument. Justice Kennedy is the Court’s “swing” Justice, and Chief Justice Roberts crucially concluded in the first Supreme Court challenge to the ACA that the individual mandate is a constitutional “tax.”

The moment of the argument most likely to be focused on until the Court resolves this case by the end of June was Justice Kennedy asking Michael Carvin, the challengers’ attorney, not once but twice whether a “serious constitutional problem” or a “serious constitutional question” would arise if the Court concluded that federal exchanges could not offer subsidies.  Wouldn’t states then be “coerced” into establishing exchanges to “avoid disastrous consequences”?

Justice Kennedy went on to ask a number of questions of the federal government’s attorney Solicitor General Donald Verrilli too including, at the very end of the argument, whether it made sense to give the IRS the big task of interpreting this statute when billions of dollars are at stake.

After General Verrilli responded that when statutes are ambiguous agencies are tasked with interpreting them whether they raise questions big or small, Chief Justice Roberts chimed in asking whether a subsequent administration could change an agency interpretation. By not asking a question at the heart of this case, not much can be read into his question.

More generally, the argument veered back and forth from the Justices trying determine the best interpretation of the statute to the Justices asking about the practical problems that would arise if subsidies weren’t available. Unsurprisingly, the liberal Justices generally asked questions of the challengers’ attorney and the conservative Justices asked questions of the Solicitor General.

Justice Kagan led the questioning of the challenger’s attorney and Justices Scalia and Alito peppered the Solicitor General with questions. Notably, Justice Scalia asked the Solicitor General whether Congress would really just do nothing if the Court ruled against the federal government. And Justice Alito asked why so few states with federal exchanges filed a brief supporting the federal government.

Both sides tried to claim that, in this case, federalism was on their side.

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.

Don’t Ask, Do Tell: NLC Joins SCOTUS Amicus Brief in Religious Accommodation Case

religious head scarfDo you think employers should ask job applicants about the clothing they might wear for religious reasons? Or should applicants disclose their religious accommodation needs without being asked? (Getty Images)

Traditional HR policy practices hold that employers shouldn’t ask prospective employees about protected characteristics such as age, sex, race, national origin, religion, etc. However, the Equal Employment Opportunity Commission (EEOC) recently decided that if an employer thinks an employee may need a religious accommodation, then the employer must ask about his or her religion. Is the EEOC’s new view correct?

That is what the Supreme Court will decide in EEOC v. Abercrombie & Fitch Stores. Who must ask about the need for a religious accommodation, the employer or the employee/applicant? The State and Local Legal Center’s (SLLC) amicus brief argues the employee/applicant should ask.

Abercrombie & Fitch’s “Look Policy” prohibits headwear, requiring employees on the sales floor to wear clothing consistent with what Abercrombie sells in it stores. Samantha Elauf wore a head scarf to an interview at Abercrombie, but she didn’t ask for a religious accommodation. Rather than asking, her interviewer assumed Ms. Elauf was Muslim and wore the headscarf for religious reasons. Ms. Elauf was ultimately not hired because of the headscarf. The EEOC subsequently sued Abercrombie, alleging it violated Title VII by failing to accommodate Ms. Elauf’s religious beliefs. At trial, the EEOC’s expert testified that some women wear headscarves for cultural rather than religious reasons.

The Tenth Circuit ultimately held in favor of Abercrombie, finding that an applicant/employee “ordinarily must establish that he or she initially informed the employer that [he or she] adheres to a particular practice for religious reasons, and that he or she needs an accommodation for that practice” – steps which Ms. Elauf did not take.

The SLLC’s amicus brief argues that the applicant/employee should have to notify the employer of the need for a religious accommodation. After all, that had been the EEOC’s position until this particular case. A contrary position requires employers to make assumptions based on stereotypes about the physical characteristics that could indicate a person might practice a particular religion. Requiring employers to ask about an employee’s religion to avoid a failure to accommodate claim may lead to employers being liable for a disparate treatment claim. EEOC guidance says that an employer asking about a protected characteristic like religion may be used as evidence of discrimination in a disparate treatment case. And public employers don’t want to ask an applicant/employer about religion to avoid violating the First Amendment’s Establishment Clause.

Amanda Kellar and Chuck Thompson of the International Municipal Lawyers Association wrote the SLLC’s brief, which was joined by the National Conference of State Legislatures, the National League of Cities, the United States Conference of Mayors, the National Association of Counties, the International City/County Management Association, the International Municipal Lawyers Association, the International Public Management Association for Human Resources, the National Public Employer Labor Relations Association, and the National School Boards Association.

If Title VII stands for anything, it is that employers should not stereotype employees based on protected characteristics. Had Abercrombie & Fitch asked Ms. Elauf if she was a Muslim, they would have been doing just that: assuming that all women who wear headscarves do so for religious reasons.

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 Rules Correctional Institutions Must Allow Half Inch Beards for Religious Reasons

religious beardThe Supreme Court’s opinion in Holt v. Hobbs communicated a rather pragmatic view of the prison security risks created by short beards – namely, that the beards aren’t much of a risk at all given that they are not an ideal place to hide contraband. (Getty Images)

To the casual Supreme Court watcher, Holt v. Hobbs will probably be known and remembered more for John Oliver’s brilliant rendition of the oral argument featuring dogs posed as Supreme Court Justices, rather than what the Court held. But for Gregory Holt and other inmates who have been not been allowed to grow half inch beards, it is the holding they will remember.

The Supreme Court held unanimously that an inmate’s rights under the Religious Land Use and Institutionalized Persons Rights Act (RLUIPA) were violated when he was not allowed to grow a half inch beard in accordance with his religious beliefs. Cities, take note – this case will affect correctional institutions with no-beard policies and may provide lower court’s guidance in evaluating RLUIPA claims in the corrections and land use context.

Arkansas Department of Corrections (the Department) grooming policy prohibits inmates who do not have a particular dermatological condition from growing beards. Gregory Holt’s request to grow a half inch beard in accordance with his Muslim religious beliefs was denied.

RLUIPA states that the government may not substantially burden the free exercise of an institutionalized person unless the burden is the least restrictive means of furthering a compelling government interest. The Eighth Circuit held that the Department satisfied its burden of showing that the no beards policy was the least restrictive means of furthering its compelling security interests.

The Court, in an opinion written by Justice Alito, first concluded the lower court made three errors in concluding that the grooming policy didn’t substantially burden Mr. Holt’s religion. That he had other means of practicing his religion, that he was “credited” by his religion for attempting to follow his beliefs, and that not all Muslims believe men must grow beards were all facts that do not matter in a RLUIPA analysis.

While the Court agreed that preventing the flow of contraband in it facilities and preventing prisoners from disguising their identities are compelling state interests, it concluded that disallowing half inch beards isn’t the least restrictive means of furthering prison safety and security. The Court described the Department’s concern that prisoners may hide contraband in their beards as “hard to take seriously.” Only small items could be concealed, inmates could more easily conceal items in head hair, and beards can be searched. Photographing an inmate with and without a beard would solve the problem of an inmate changing his appearance to enter restricted areas, escape, or evade apprehension upon escaping. And the fact that the Department allows inmates to grow mustaches, head hair, and quarter inch beards for medical reasons – all of which could be shaved off “at a moment’s notice” – indicates that security concerns raised by quickly changing appearance are not “serious.”

Also critical to the Court’s analysis was the fact that most states and the federal government allow inmates to grow half inch beards for any reason.

The Court’s opinion in this case was partially a critique of the lower court opinions, which seemed to gloss over the requirements of RLUIPA rather than carefully apply them, and partially a pragmatic view of security risks created by short beards: “Hair on the head is a more plausible place to hide contraband than a ½ inch beard—and the same is true of an inmate’s clothing and shoes. Nevertheless, the Department does not require inmates to go about bald, barefoot, or naked.”

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 to Decide If Police Officers Must Accommodate Mentally Ill Arrestees

handcuffsPer the adoption of the Americans with Disabilities Act (ADA), accommodating persons with disabilities is the norm. Twenty-five years after the Act’s passage, the Supreme Court will decide whether it applies to police officers arresting a mentally ill suspect who is armed and violent. (Getty Images)

In City & County of San Francisco v. Sheehan, the Supreme Court will decide whether, pursuant to the Americans with Disabilities Act (ADA), police must accommodate a suspect’s mental illness during an arrest. The State and Local Legal Center’s (SLLC) amicus brief argues against this because no conclusive evidence indicates that accommodating mentally ill suspects reduces injuries or the use of force.

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

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 argues that Title II of the ADA applies to arrests, and that the officers should have taken her mental illness into account when re-entering 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 re-entry 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, stating “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 will review the Ninth Circuit’s qualified immunity ruling.

The SLLC’s amicus brief argues that the ADA should not apply to arrests. While few police departments have the resources to adopt specialized approaches to responding to incidents involving the mentally ill, no conclusive evidence indicates that these approaches reduce the rate or severity of injuries to mentally ill suspects. No one-size fits-all approach makes sense, because police officers encounter a wide range of suspects with mental illnesses. And even psychiatrists – much less police officers who aren’t mental health professionals – cannot predict with any reasonable degree of certainty whether an armed suspect with a mental illness will harm himself or herself or others in an emergency. Finally, because the officers in this case could not predict whether Sheehan would harm herself or others if they did not reenter her room, the brief argues that they are entitled to qualified immunity.

Orry Korb, Danny Chou, Greta Hanson, and Melissa Kiniyalocts, County of Santa Clara, California wrote the SLLC’s amicus brief which was joined by the National League of Cities, the National Association of Counties, the International City/County Management Association, and the United States Conference of Mayors.

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 to Set Specifics of Excessive Force Standard for Pretrial Detainees

prison_bars_fullsizeCities with jails take note: the Supreme Court has accepted a case which will determine how hard or easy it is for pretrial detainees to win excessive force claims for money damages against your city. (Getty Images)

Since the 1980s (and arguably the 1970s) the Supreme Court has been clear: a pretrial detainees’ right to be free from excessive force derives from the Fourteenth Amendment’s Due Process Clause. But what does that mean exactly? The Supreme Court will lay out the specifics in Kingsley v. Hendrickson.

This case matters to cities that run jails because government officials can be sued for money damages for constitutional violations. A legal standard more deferential to government officials means that successful pretrial detainee excessive force lawsuits will be less likely. More significantly, different excessive force standards for pretrial detainees and sentenced inmates, who are often housed in the same facility, will be difficult for correctional officers to comply with. After all, correctional officers must make split decisions regarding the use of force and may not know whether an incarcerated person is a pretrial detainee or has been convicted.

The constitutional standard for the use of excessive force depends on whether a person is an arrestee, a pretrial detainee, or a sentenced inmate. The Fourth Amendment applies to arrestees, the Fourteenth Amendment’s Due Process Clause applies to pretrial detainees, and the Eighth Amendment applies to those convicted. Not surprisingly, the standard that applies to arrestees is less deferential to law enforcement than the standard that applies to those who have been convicted. Force against an arrestee must be “objectively reasonable,” while force against a sentenced inmate must merely not be “cruel and unusual.” The Supreme Court has never defined the substantive standard for excessive force claims by pretrial detainees.

Pretrial detainee Michael Kingsley alleges two police officers used excessive force against him when they transferred him to a different cell so they could remove a piece of paper covering the light over his bed which he refused to remove. In the process, his feet smacked against the bed frame, an officer kneed him in the back, he was tasered so his handcuffs could be removed, and he claims an officer smashed his head against the concrete bunk.

The jury instruction stated that for Kingsley to win his excessive force case he had to prove that the officers acted “recklessly.” Kingsley claims that the jury instruction should have been less deferential to the officers and that he should have only had to prove that they failed to act “objectively reasonable.”

The Seventh Circuit concluded that the jury instruction was adequate. The court had previously said that force under the Due Process Clause must “incorporate some measure of subjective intent” and must be at least reckless. And the Seventh Circuit in some cases had applied the Eighth Amendment standard.

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.

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.