The Presidential exception to the Fourth Amendment

Here is another false arrest/free speech claim arising from the Occupy Wall Street protests of 2011, when thousands of people converged in Zuccotti Park in Manhattan to decry the capitalist beast. In this case, the police sent the protesters to a designated protest area to keep them away from President Obama, who was at the nearby Sheraton Hotel in midtown Manhattan. While Obama was at the hotel, the police made the protesters stay inside the press pen. They were allowed to leave when Obama departed the hotel. The protesters were stuck in the press pen for about 2 hours.

The case is Berg v. Kelly, decided on July 25. The claim is that the protesters were detained in the press pen in violation of the Fourth Amendment. The government argued that the "special needs" exception to the Fourth Amendment justified the detention. "Special needs" allows the police to conduct a limited search or temporary seizure that serves "special needs beyond the normal need for law enforcement." You don't see "special needs" arise that often, and the legal standard is difficult to articulate. The asserted special needs here was protecting the President. Case law "generally recognize[s] protection of the President as a special need apart from routine law enforcement," and the Second Circuit adopts that principle here. But the Court of Appeals (Hall, Raggi and Carney) says the government is not entitled to summary judgment in this case because the record says very little about the risk to Obama's safety during the demonstration if the protesters were allowed to go home in small groups and watch TV. So that claim survives.

But it really does not survive because the government wins the case on other grounds: qualified immunity. This form of immunity lets governmental defendants -- including the police -- off the hook when the case law was not crystal clear at the time that they were violating the Constitution. The police get immunity here because the government has a huge interest in presidential safety, and "an objectively reasonable officer could have thought that the temporary detention here offered a permissible method of serving the heightened security need that exists during a Presidential visit." Here is the crux of the reasoning:

Officers charged with the duty of protecting the President reasonably could have concluded that—where OWS protesters had left the unrestricted designated protest area and entered an area set aside not for them but for the press—a reasonable way to allow the protesters to pursue their protest without risk that they would attempt to get closer still to the President was to require them to remain in the press pen until the President departed the area. With the benefit of hindsight, other means might be imagined to safeguard the President while also allowing plaintiffs to protest with less restriction on their freedom of movement. But the officers were balancing a number of legitimate concerns, including consideration for First and Fourth Amendment rights, in a dynamic situation. At the time in question no clearly established law signaled that the Officers’ conduct fell outside the special needs doctrine.

Occupy Wall Street arrest case is shot down

Occupy Wall Street protests erupted in 2011 to challenge the capitalist beast. Since these were a series of public protests, the police would typically get involved, which means the protesters brought lawsuits over how the police regulated these events. Those cases are still being decided in the federal courts. In this case, the protester loses.

The case is Higginbotham v. Police Officer Sylvester, a summary order decided on July 25. I remember the Occupy protests well. I stopped off at Zuccotti Park in lower Manhattan one morning after arguing a case in the Second Circuit. Maybe I was the only one there wearing a suit. The energy was electric. People were playing drums rhythmically, creating an echo against the skyscrapers. It was like being at a rock concert. What a sound that was, the drummers-a-blazing. But you knew the protests could not last. Too many people, too much noise.

This case provides a slice of what I saw at the protests. The plaintiff was a cameraman covering the protests. He climbed on top of a phone booth to get a better vantage point. The police repeatedly told him to get down from there. When plaintiff finally got off the phone booth, the police arrested him for disorderly conduct, although he was never prosecuted. Plaintiff then brought this lawsuit, supported with amicus briefs from a ton of media organizations.

All that amicus support is not enough to get plaintiff a trial. The Court of Appeals (Pooler, Wesley and Hall) says there was probable cause to arrest plaintiff for reckless endangerment, which prohibits you from doing something that creates a substantial risk of physical injury to someone else. Note that while plaintiff was arrested for disorderly conduct, to win the case, the police only have to show they had probable cause to arrest plaintiff for any crime, not just the crime they charged him with. The district court held, and the Second Circuit agrees, that a reasonable police officer would believe that plaintiff created that substantial risk of serious harm when he climbed atop that phone booth. 

The Court of Appeals gives one to the inmates

In this religious freedom case, the Second Circuit rules in favor of an inmate who claims the jail did not accommodate his religious practices in feeding him the wrong food. This ruling draws from a recent Supreme Court decision that expands the rights of inmates who are claiming religious discrimination.

The case is Williams v. Annucci, decided on July 10. Plaintiff is a practicing Nazarite Jew whose faith requires that he consume a grape-free, vegetarian and kosher diet. The Department of Corrections argued in the district court that these religious practices are too expensive and administratively burdensome and that "maintaining the integrity of kosher food at the facility is problematic." Now, I know many people don't care about the religious practices of inmates, and that level of concern is probably tied to the crime the inmate-plaintiff had actually committed. But, in the wake of anti-plaintiff Supreme Court rulings in interpreting the Free Exercise Clause, Congress passed the Religious Land Use and Institutionalized Persons Act of 2000, which makes it difficult for prison authorities to violate religious freedom in the jails and elsewhere.

I will leave it to the sociologists to determine why Congress can pass a law that helps inmates so long as it promotes religious freedom, while standing by why the Supreme Court scales back civil rights in other contexts. It is probably the religion angle. Anyway, in 2015, the Supreme Court ruled in Holt v. Hobbs that RLUIPA claims require the courts to view the government's defenses in these case with skepticism. The government needs a compelling interest to justify rejecting the inmate's religious preferences, as Congress passed RLUIPA "to provide very broad protection for religious liberty." The government must also "justify its conduct by showing not just its general interest, but its particularized interest in burdening the individual plaintiff in the precise way it has chosen."

These legal standards give plaintiff the win. The religious freedom law requires the government incur expenses in its own operations to avoid imposing a substantial burden on religious practices. On this record, the Department of Corrections has not shown "that accommodating Williams would significantly increase costs and administrative burdens." The department has not shown precisely how much these dietary changes for Williams would cost or how they would burden the prisons. And the Court of Appeals (Walker, Pooler and Crawford [D.J.]) rejects the "administrative inconvenience" defense, at least in these cases, because "it is the 'classic rejoinder of bureaucrats throughout history' rejected by the Supreme Court in Holt." The case is therefore remanded to the Northern District of New York for additional factfinding on these issues.

Supreme Court strikes down California abortion rights speech requirement

Overlooked in the shuffle of the more high-profile cases that came down at the end of the last Supreme Court term was a free speech case involving the rights of an anti-abortion pregnancy center that objected to a California law that required it to let clients know about abortion services. The Court rules in favor of the pregnancy center.

The case is National Institute of Family and Life Advocates v. Becerra, decided on June 26. The Supreme Court over the last decade or so has taken a pro-plaintiff position on free speech issues (with limited exceptions). One area that surfaces is the coerced-speech theory, that holds the government cannot force you to say something you don't agree with. That arises here. The clinics at issue in this case offer pregnancy-related services. These centers "aim to discourage and prevent women from seeking abortions." However, under California law, these clinics must advise patients that "California has public programs that provide immediate free or low-cost access to comprehensive family planning services . . . , prenatal care, and abortion for eligible women." Licensed facilities must provide patients with that information. Unlicensed facilities must tell patients that the facility is not licensed as a medical facility "and has no licensed medical provider who provides or directly supervises the provision of services."

As for the licensed-facility speech requirement, the 5-4 conservative majority says the notice "is a content-based regulation of speech" because the clinics have to convey a message with which they disagree: the availability of abortion services, "at the same time [the clinics] try to dissuade women from choosing that option." In reaching this holding, the Court notes that the lower courts had upheld this speech requirement under the "professional speech" doctrine, which grants the government some leeway in regulating how professionals must communicate with their customers and patients. But the Court says it has never recognized such a legal principle. For now, it looks like the "professional speech" doctrine no longer exists.

As for the speech requirement imposed on unlicensed pregnancy centers, that also fails under the First Amendment. The reason for this is that "California has not demonstrated any justification for the unlicensed notice that is more than 'purely hypothetical.'" The state "points to nothing suggesting that pregnant women do not already know that the covered facilities are staffed by unlicensed medical professionals."

Plaintiff prevails in arbitration appeal

In a rare case that favors a plaintiff attempting to avoid arbitration, the Court of Appeals holds that Macy's might not be able to enforce an arbitration clause because the plaintiff may not have received certain documents in the mail that would have bound him to arbitration.

The case is Weiss v. Macy's Retail Holdings, Inc., a summary order issued on July 12. The courts love arbitration agreements. Any employment lawyer will tell you this. Management also likes arbitration agreements, too, because arbitration is cheaper and faster and there's no sympathetic jury who will award the plaintiff a million bucks.

In this case, Macy's had a process by which it mailed the employee an opt-out form that required the employee to send it back if he does not want any workplace dispute to be resolved through arbitration. The opt-process is a problem because we often put this correspondence in a pile and then forget about it and the next thing you know you've agreed to some product or service because you forgot to mail it back.

Plaintiff has a case under the Americans with Disabilities Act. As the Court of Appeals (Newman, Hall and Carney) puts it, "Weiss does not contend that he ever returned an opt-out form to Macy’s. He asserts, however, that he never received any such mailed documents from Macy’s or attended any in store training about Macy’s new dispute resolution program or arbitration. He avers further that, had he received the Election Form, he would have chosen to opt out of arbitration. He also recalls at least one incident in which he did not receive a tax form that Macy’s asserted it had mailed to him at his home."

So how do we resolve this? In opposition to the motion to compel arbitration, plaintiff put on evidence about how mail is processed at his home. Plaintiff lived with his family, including his brother, Joseph.

during the period relevant to this suit, Weiss lived with his family, including his brother, Joseph. Both Weiss and Joseph state that, because of Weiss’s learning disability, Joseph reads and explains to Weiss any mail addressed to him that is “important or official,” including employment documents. For example, Joseph assists Weiss in reading and understanding documents that relate to Weiss’s retirement benefits and health insurance. Joseph avers that Weiss never showed him any of the arbitration-related documents that Macy’s purportedly mailed. He further declares that, had he seen the documents, Joseph would have advised Weiss to sign and return the opt-out form. A contemporaneous coworker of Weiss, Janet Rios, also stated in a sworn affidavit that she never received any written or verbal information from Macy’s about the employee dispute resolution process or about the possibility of opting out of arbitration.

The case is remanded to the district court. Plaintiff did not simply merely deny receipt of that opt-out letter. "He provided evidence of his family’s regular procedure for reviewing with him the mail he received and asserted, with sworn support, that the relevant mailings did not arrive and go through that process. We conclude, therefore, that Weiss has sufficiently rebutted New York’s mailing presumption to create a disputed issue of material fact." Plaintiff may still get his day in court.

Court overturns unsolicited phone call ruling

What do you do when unsolicited phone calls come into your life? Do you hang up without saying anything? Do you engage the caller to mess with his head? Do you make animal noises? Or do you bring a lawsuit?

The case is King v. Time Warner Cable, decided on June 29. The Telephone Consumer Protection Act
of 1991 makes it illegal to use an automatic telephone dialing system to call your phone without consent. Plaintiff says this happened to his cell phone 153 times. The district court ruled in plaintiff's favor, on authority of an FCC ruling from 2015 that the D.C. Circuit has since invalidated. The Second Circuit (Winter, Cabranes and Lynch) takes this victory away from plaintiff.

Violations of the TCPA can be costly from the phone-violator. There is a minimum fine of $500 per violation, which can be trebled at the court's discretion if the defendant willfully or knowingly violated the statute. "In 2015, the FCC issued a Declaratory Ruling and Order that, among other things, attempted to clarify the TCPA’s requirement that, to qualify as an autodialer under the statute, a device must have the 'capacity' to dial random and sequential numbers." In addition, "the
agency construed a device’s ‘capacity’ to encompass its ‘potential functionalities’ with modifications such as software changes." The trial court in this case awarded plaintiff nearly $230,000 in damages.

Time-Warner wins the appeal because the district court based plaintiff's victory on the 2015 FCC ruling. But the D.C. Circuit took that FCC order and folded it into a paper airplane, tossing it out the window and onto the streets of the District of Columbia. This requires the Second Circuit to determine if that FCC ruling was a reasonable interpretation of the statute. I really don't want to put you to sleep, so here the short answer: the FCC's interpretation is not reasonable. Here is the summary:

In sum, we conclude that the term “capacity” in the TCPA’s definition of a qualifying autodialer should be interpreted to refer to a device’s current functions, absent any modifications to the device’s hardware or software. That definition does not include every smartphone or computer that might be turned into an autodialer if properly reprogrammed, but does include devices whose autodialing features can be activated, as the D.C. Circuit suggested, by the equivalent of “the simple flipping of a switch.” Within those bounds, however, courts may need to investigate, on a case-by-case basis,
how much is needed to activate a device’s autodialing potential in order to determine whether it violates the TCPA.

Since the favorable district court ruling stemmed from an incorrect interpretation of the statute, and it was premised on an FCC regulation that has been struck down, the district court has to determine if there is any other way for plaintiff to win this case. For now, the plaintiff's damages award is set aside.

Unusual national security drone ruling from the Second Circuit

The ACLU has been suing the federal government in an effort to obtain documents relating to the drone strikes that are taking place in your name around the world, at least one of which has killed an American citizen. Naturally, the government has resisted these efforts to release documents like this, so the case has been the Court of Appeals on several occasions. This case is unusual, however, because the government wants the Second Circuit to remove certain facts about the case from the public record.

The case is ACLU v. Department of Defense, issued on July 5. Here is how the Court of Appeals summarizes the issues this time around: "The Defendants‐Appellants seek to vacate a ruling that a certain fact has been officially acknowledged and to leave redacted from the District Court’s public opinion the fact and related sentences." What happened was the district court, in resolving this dispute, identified certain facts in her decision that the government was not disputing.

When the district court resolved this case, it "provided a proposed opinion to the Government for classification review ex parte and filed that opinion under seal." Hey, national security, right? The government responded to the district court's proposed ruling by claiming it did not concede the truth of a particular fact relating to the case. We don't know what that fact is, by the way; the Second Circuit keeps that under wraps. This whole thing is quite unusual, and the Court of Appeals says it may be unprecedented. The Court rules in the government's favor.

First, the Court says, "it is reasonably debatable whether the official acknowledgement ruling is correct," and "the affidavit of a senior United States official, submitted ex parte and under seal, provides a substantial basis for concluding that public disclosure of both the fact at issue and a ruling that the fact has been officially acknowledged would harm important security interests of the United States." In addition, "a transcript of an interview with former Secretary of State John F. Kerry, which the ACLU interprets to reveal what it speculates is the fact at issue, is available to the public. That transcript is included in the public version of the joint appendix and in the Government’s unredacted reply brief." So the public has some opportunity to make its own interpretation of the interview transcript. "On balance, vacating and redacting the District Court’s official acknowledgement ruling is of minimal significance compared to the risk of injury to important security interests of the United States in the event that the ruling is upheld and made public."

Rare qualified immunity rejection in Supreme Court in prayer case

If you handle Section 1983 cases, you know the Supreme Court has been routinely granting police officers qualified immunity by summarily reversing lower court rulings that are not giving the police the benefit of the doubt in cases where the state of the law was not clearly-established at the time of the violation. This case is an exception, one of the few immunity cases in the Supreme Court that do not favor the police.

The case is Sause v. Bauer, issued on June 28. This case was lost in the shuffle of the final days of the Supreme Court's 2017-18 term, with all the noteworthy cases about the Muslim travel ban and the coerced-speech union fees case.  What strikes me about this case is the Supreme Court cites no case law whatsoever in holding that the case was improperly dismissed because the police may have violated the plaintiff's clearly-established rights under the First Amendment.

It all started when the police entered plaintiff's apartment in response to a noise complaint "and then proceeded to engage in a course of strange and abusive conduct,before citing her for disorderly conduct and interfering with law enforcement." At one point, plaintiff knelt and began to pray, but one of the officers told her to stop. That makes this a free exercise case under the First Amendment, which protects the right to pray as you wish. While the lower court dismissed the case, the Supreme Court brings it back.

There can be no doubt that the First Amendment protects the right to pray. Prayer unquestionably constitutes the “exercise” of religion. At the same time, there are clearly circumstances in which a police officer may lawfully prevent a person from praying at a particular time and place. For example, if an officer places a suspect under arrest and orders the suspect to enter a police vehicle for transportation to jail, the suspect does not have a right to delay that trip by insisting on first engaging in conduct that, at another time, would be protected by the First Amendment. When an officer’s order to stop praying is alleged to have occurred during the course of investigative conduct that implicates Fourth Amendment rights, the First and Fourth Amendment issues may be inextricable.

After squaring away that issue and noting that the right to pray is a clearly-established right, the Court state that the record is not clear whether the police had entered the apartment without plaintiff's consent, or whether they had some other good reason to be there. "Nor does her complaint state what, if anything, the officers wanted her to do at the time when she was allegedly told to stop praying. Without knowing the answers to these questions, it is impossible to analyze petitioner’s free exercise claim." Plaintiff therefore has her case back.

Islamic Center land dispute is not yet ripe for lawsuit

An Islamic Center sued the City of Yonkers because it wanted to build a mosque on property that the City later designated with landmark status. The trial court dismissed the case as unripe, and the Court of Appeals affirms.

The case is Islamic Community Center v. City of Yonkers Landmark Preservation Board, a summary order decided on July 6. After the organization identified property for the mosque, since the property had fallen into a state of disrepair, before the Center closed on the purchase, it met with local officials to confirm that they could use the property as a mosque. The Court writes, "Yonkers city officials confirmed that the property was zoned for use either as a residence or a house of worship." However, another community organization had filed an application to designate the property as a landmark. The Mayor eventually signed a resolution to that effect. That leads to this lawsuit; the Community Center argues the landmark designation violates the Religious Land Use and Institutionalized Persons Act of 2000, which prohibits religious discrimination in land-use decisions.

We don't yet know if this a real case of religious discrimination. That's because the courts hold that the case is not yet ripe for judicial resolution. We learn this in administrative and constitutional law classes in law school: some cases cannot be brought until local decisionmaking is final. Ensuring the case is ripe for judicial review allows the court to have a full record on the decisionmaking before it. Ripeness also allows the local government to make decisions in a local manner before the federal courts get involved, as "land use disputes are uniquely matters of local concerns more aptly suited for local resolution."

The case is unripe because "ICCMW failed to apply for the 'certificate of appropriateness' that would, if granted, enable them to pursue their construction projects despite the landmark designation." Here is the Court's reasoning:

ICCMW argues that applying for a certificate of appropriateness would have no bearing on the alleged harm, because “this process cannot reverse or amend the landmark designation.” Appellant’s Br. at 36. “In fact, the Certificate of Appropriateness process is the harm caused to Appellants—it is an additional burden that ICCMW must now overcome given the discriminatory landmark designation.” Id. Yet ICCMW seems to unwittingly reflect the very rationales underlining the final-decision rule . . . because at no point in its briefing was it clear exactly how the landmark designation impacted its ability to use its property, let alone how the designation substantially burdened its ability to practice its religious faith. The final-decision rule is designed to aid courts in understanding exactly how a litigant is being harmed by a land use designation, and to prevent litigants from rushing into federal courts when the harm could be avoided through a local process. ICCMW’s failure to attain a final decision on its application by availing itself of the local procedure that could remedy its alleged harm—whatever that may be, since none has yet been articulated—bars it from litigating this claim in federal court.

Get off my curtilage!

We don't use the word "curtilage" in everyday conversation, but it has relevance to Fourth Amendment cases where someone tries to stop the prosecution from using evidence that the police obtained on your property without a warrant. This case shows us what it's all about.

The case is United States v. Alexander, decided on May 1. Defendant lives in Staten Island, where a narrow driveway running perpendicular to the street runs behind the house, leading to a shed. In the middle of the night one day, the police approached defendant and some compatriots and saw some guys hide drugs inside a parked vehicle. Defendant then walked down his driveway with a bottle of liquor, picking up a bag from the ground along the way. But when he returned to the front of the house, defendant was carrying neither. A police officer decided to trek over to where defendant had gone, into the backyard, where found the bottle and that bag, which contained two illegal guns. He got 51 months in jail for those guns.

The Court of Appeals cuts defendant a break, finding that the police entered the curtilage of defendant's property without a warrant, violating the Fourth Amendment. The curtilage is the "area adjacent to the home and to which the activity of home life extends," therefore making that part of the property part of your home and therefore protected under the Fourth Amendment's prohibition against unreasonable searches and seizures. In contrast, private property that exgtends outside a home's curtilage -- what the courts call the "open field" -- is fair game for the police and falls outside the Fourth Amendment's protections.

Ruling in defendant's favor, Judge Lynch runs through the four-factor test governing when we got some curtilage: (1) the proximity of the area claimed to be curtilage to the home, (2) whether the area is included within an enclosure surrounding the home; (3) the nature of the uses to which the area is put; and (4) the steps taken by the resident to protect the area from observation by people passing by. What this means is that while your home may be your castle, parts of your property are not. These are the Dunn factors, and next time you host a family barbeque ask everyone which part of the property is protected under the Fourth Amendment. For defendant, the shed area is curtilage, and the Court of Appeals holds, because that area was a few steps from his back door, he used that area for recreation (like barbeques). The fourth factor cuts against defendant's case because nothing prevented the public from viewing that area from the sidewalk in front of the property. That proximity factor really helps defendant in this case, the Court says. While the government says the area in question was visible from the street, the evidence that was seized was not.