Supreme Court wants strict content neutrality on municipal sign laws

The Supreme Court takes up a municipal sign law case for the first time in many years, holding that municipalities cannot treat signs differently on the basis of content, even if they did not specifically intend to favor or disfavor certain messages. (Having handled cases like this over the years, I had a keen interest in this case).

The case is Reed v. Town of Gilbert, decided on June 18. This Arizona town had a comprehensive sign law, like most towns. Campaign and social message signs enjoyed greater signage rights than directional signs. The plaintiff, a small church, needed those signs to let people know the location of their services. The directional signs could not be posted for the same time duration as the other signs. The church sued under the First Amendment, arguing that the sign law contained a content-based signage rights in violation. The Ninth Circuit rejected that argument, holding that the First Amendment was not breached because the Town did not intend to favor one class of signs over another.

The Supreme Court disagrees with the Ninth Circuit. Adopting an absolutist position on this issue, Justice Thomas says it does not matter what the Town specifically intended in classifying signs differently. We look at the sign law's effect on the placement of signs in determining whether the law violates the First Amendment. "The restrictions in the Sign Code that apply to any given sign ... depend entirely on the communicative content of the sign." Here is why it matters:

If a sign informs its reader of the time and place a book club will discuss John Locke’s Two Treatises of Government, that sign will be treated differently from a sign expressing the view that one should vote for one of Locke’s followers in an upcoming election, and both signs will be treated differently from a sign expressing an ideological view rooted in Locke’s theory of government. More to the point, the Church’s signs inviting people to attend its worship services are treated differently from signs conveying other types of ideas. On its face, the Sign Code is a content-based regulation of speech.

Since the sign law regulates on the basis of content, the Town must show that it does so for a compelling reason. Otherwise the law is struck down. The Court says the Town "has offered only two governmental interests in support of the distinctions the Sign Code draws: preserving the Town’s aesthetic appeal and traffic safety." These will not cut it, as they are under-inclusive, meaning that this justification is not applied across-the-board to other signs that might also create eyesores and traffic distractions. The reasoning:

Starting with the preservation of aesthetics, temporary directional signs are “no greater an eyesore,” than ideological or political ones. Yet the Code allows unlimited proliferation of larger ideological signs while strictly limiting the number, size, and duration of smaller directional ones. The Town cannot claim that placing strict limits on temporary directional signs is necessary to beautify the Town while at the same time allowing unlimited numbers of other types of signs that create the same problem.

The Town similarly has not shown that limiting temporary directional signs is necessary to eliminate threats to traffic safety, but that limiting other types of signs is not.The Town has offered no reason to believe that directional signs pose a greater threat to safety than do ideological or political signs. If anything, a sharply worded ideologicalsign seems more likely to distract a driver than a sign directing the public to a nearby church meeting.

Circuit sustains $616,000 disability retaliation judgment

With little fanfare, the Court of Appeals has sustained a $615,964 judgment in a disability retaliation claim, rejecting the employer's arguments that the jury had no basis to find that an HIV+ employee was fired because he objected to disability discrimination at work.

The case is Munoz v. The Manhattan Club Timeshare, a summary order issued on June 17, two days after the appeal was argued. Along with Gregory Antollino and Richard Cardinale (who both tried the case), I represented plaintiff on appeal. The Second Circuit ruling says little about the case. The district court denied the Club's post trial motions this way:

Muñoz has presented evidence sufficient for a reasonable jury to conclude—as the jury in this case did—that he was fired because he sought an accommodation for his protected disability. For example, Muñoz has offered evidence that TMC employees referred to him as a "complainer" a couple of months after he asked for an accommodation. TMC offered evidence that this comment did not refer to Muñoz and that it may not have been referring specifically to Muñoz's requested accommodation. But the jury was not required to believe TMC's evidence because it was contradicted by testimony from other TMC employees. Similarly, Muñoz has put forth evidence that he was an excellent employee. TMC countered that evidence with evidence that Muñoz was not such a good employee, but, again, the jury was not required to believe that evidence. A reasonable juror could have concluded that Muñoz was an excellent employee, which is circumstantial evidence that he was terminated in retaliation for his protected activity— particularly where, as here, other employees with performance problems were not terminated. Finally, TMC points to the ten-month gap between Muñoz's initial request for an accommodation and his termination as grounds for judgment as a matter of law. But Muñoz has offered evidence that his termination was the capstone to a longer campaign of retaliation that began shortly after his complaint. This is enough for reasonable jurors to conclude that Muñoz was fired in retaliation for his protected activity.

The Court of Appeals (Raggi, Jacobs and Lynch) also sustained the damages award: $185,000 for pain and suffering and $347,500 in punitive damages. As presented by defendant, the case narrative was that plaintiff was a bad worker before and after he complained about discrimination, and that he was was fired 10 months after complaining -- too long to draw a retaliatory inference. Plaintiff argued that defendant inflated allegations of poor job performance, and he put on witnesses who said he was a good worker all along. He also argued that a memo purporting to be an anonymous customer complaint about plaintiff's demeanor was forged by management as a means to terminate his employment. As for the 10-month gap, the jury could have found that management had subjected him to relatively minor retaliatory afterwards, culminating in his termination. 

Brady violation wins defendant habeas relief

It always interests me when a convicted defendant wins a habeas corpus petition. It means he was found guilty in a state court of a crime but the conviction was unconstitutional. It often takes a federal court years later to find the conviction was unconstitutional. Same case, contrary results in different courts.

The case is Lewis v. Connecticut, decided on May 14. Lewis was convicted of murder solely on the testimony of Ruiz. But unknown to Lewis, Ruiz had repeatedly denied knowledge of the murders and implicated Lewis only because the police promised to let him go if he admitted being the getaway driver and implicated Lewis and someone else. Lewis did not know this because, in violation of Brady v. Maryland, the prosecution did not turn over this information to his lawyer prior to the criminal trial. (This information about Ruiz came out a few years after Lewis was convicted, during a court hearing that challenged the conviction of Lewis's co-defendant).

The district court granted Lewis's pro se habeas petition, and the Court of Appeals (Walker, Winter and Cabranes) affirms. The state court conviction violated clearly-established Supreme Court authority. Brady is a Supreme Court ruling from the 1960s. As you probably know from the movie My Cousin Vinny, the prosecution has to turn over all evidence favorable to defendant even if the defendant does not ask for it. So the law was clearly established. While the state court in affirming Lewis's conviction said that all exculpatory information was revealed to him prior to trial, the Court of Appeals says this was simply not true. The good stuff from Ruiz was not turned over to Lewis.

In the end, this information about the nature of Ruiz's involvement in the case would have made a difference at Lewis's trial. Ruiz was the state's key witness at trial. What jury would believe his account if it knew the truth about Ruiz's account, that he was promised a break if his implicated Lewis, especially since Ruiz told the police he knew nothing about the murder? This would have made for great impeachment material at trial. As the Court of Appeals says, this information constituted "credible evidence that Ruiz simply parroted information supplied by an unscrupulous police officer" and it "undermines Ruiz's credibility and thus any reasonable confidence in the outcome of the trial."

When does the one-year SOL for habeas corpus petition start?

You have one year to file a habeas corpus petition in challenging the constitutionality of your criminal conviction. In this case, the Second Circuit asks when that one year clock begins to run.

The case is Rosa v. United States of America, decided on May 13. Rosa was convicted on charges relating to child pornography. His conviction was affirmed on appeal and the Supreme Court denied certiorari. That certiorari denial normally triggers the one-year statute of limitations. Here, though, Rosa filed a motion with the Supreme Court to rehear the denial of his certiorari petition. Rosa argues that the one-year statute of limitations starts when the Supreme Court denied that motion.

Other Circuits have already decided this issue. They hold that the one-year time limit starts when the Supreme Court denies certiorari, not when it denies the motion to rehear that denial. The Second Circuit (Walker, Raggi and Droney) agrees with that reasoning. The one-year statute of limitations starts when the conviction becomes final. The Supreme Court says finality attaches when that Court affirms a conviction on the merits on direct review or denies a petition for certiorari. The Second Circuit says the certiorari petition is resolved when the petition is denied. The rehearing petition "does essentially nothing with respect to ... the denial of certiorari," so that "denial of certiorari is not delayed by a petition for rehearing of the certiorari denial."

Inmate suicide loses on qualified immunity grounds

The Supreme Court uses an inmate suicide case to remind us how hard it is to hold individual government defendants liable in constitutional cases whey they can assert qualified immunity, a legal doctrine that shields them from litigation when the state of the law is not clearly-established at the time of the violation.

The case is Taylor v. Barkes, decided on June 1. After the inmate killed himself, his family sued jail officials, claiming they failed to supervise and monitor the private contractor that provided the medical treatment—including the intake screening—at the Institution. The case does not get out of the box because of qualified immunity.

This case was not argued at the Supreme Court, which issues a per curium ruling after reading the briefs. Regular blog readers know that qualified immunity does not create automatic protection for government defendants. But for plaintiff to win the case, he has to show the defendants violated clearly-established constitutional rights. The Court says the defendants are immune because court rulings are not clear about this issue, which means the defendants were not aware they were violating the inmate's rights. The Court says:

No decision of this Court establishes a right to the proper implementation of adequate suicide prevention protocols. No decision of this Court even discusses suicide screening or prevention protocols. And “to the extent that a ‘robust consensus of cases of persuasive authority’” in the Courts of Appeals “could itself clearly establish the federal right respondent alleges,” the weight of that authority at the time of Barkes’s death suggested that such a right did not exist.

See how narrow the clearly-established right has to be? Even if the court thinks the plaintiff's rights were violated in hindsight, if the law was not clear at the time, then the plaintiff cannot recover damages.

Pay attention to how the Court frames the issue. It says no decision of the Supreme Court speaks to this issue.The Second Circuit considers whether the decisions of that Circuit clearly-established the right. Most other Circuits use the same framework. But the Supreme Court has never told us what body of law to draw from in determining whether a right is clearly-established. It is possible that if the Supreme Court ever takes up that issue -- and it will, someday -- it will say that the only way to know if an area of law is clearly-established is by looking to Supreme Court rulings, and not cases from the Courts of Appeal.

Inmate wins Iqbal appeal

If you are a federal practitioner, the headline will prompt a double-take. For the rest of you, know this: Iqbal is a Supreme Court decision that makes it easier to dismiss lawsuits that do not allege plausible claims. And inmates rarely win their cases.

The case is Dotson v. Fischer, a summary order decided on June 2. Dotson said he was denied adequate medical treatment in state prison and retaliated against for complaining about it. He says that, in violation of the Eighth Amendment, prison medical authorities denied an urgent recommendation that he receive surgery to remove a cyst in his ear, prolonging his severe symptoms. One doctor did a lousy job with the surgery, and a jail official put Dotson in keeplock in retaliation for his grievances over the medical treatment. The district court dismissed the case. The Court of Appeals brings it back.

Iqbal requires detailed and plausible allegations against defendants. The Second Circuit (Parker, Sack and Carney) says the complaint "plausibly alleges a serious medical need. Dotson alleges that a CAT scan revealed a cyst in his left ear, and that Nurse Practitioner Jennifer Wrest recommended surgery and requested an “urgent” level of attention. Over the year following that 'urgent' recommendation, while the recommended surgery was delayed, Dotson complained on numerous occasions of 'vertigo, blinding headaches, extreme pain in his left ear, and increased hearing loss.'  When the cyst was finally removed, one year later, it was of 'significant size.'" These allegations are enough to show plaintiff was in "extreme pain."

The complaint also establishes that the defendants acted with deliberate indifference to plaintiff's medical needs. "Dotson asserts that Drs. Dinisio and Koenigsmann reviewed Wrest’s evaluation and recommendation that his condition demanded 'urgent' care and rejected it, apparently without causing him to be examined again in person or taking any further step. ... Allegations of delayed medical care may support a finding of deliberate indifference to a serious medical need, and allegations that delayed treatment resulted in serious harm may bear on the reasonableness of an inference of a defendant’s knowledge of the risks to which he or she subjected the plaintiff. We believe Dotson’s allegations suffice at this early stage of the litigation."

Plaintiff also gets back his First Amendment claim. "Although Dotson’s pleadings on this matter are not a model of clarity, they suggest sufficient temporal proximity between Dotson’s complaints of inadequate medical care and Sticht’s decision placing Dotson in keeplock to support Dotson’s retaliation claim at this pleading stage."

Inmates have rights, too

Inmates have the constitutional right to out-of-cell exercise while in jail. The jail can restrict the inmate's exercise for security reasons. In this case, the inmate says that jail officials in Connecticut had a policy of requiring inmates with disciplinary problems to be handcuffed behind their backs during their out-of-cell recreational periods.

The case is Gardner v. Murphy, a summary order issued on June 2. The defendants tried to have the case dismissed on qualified immunity grounds, but the Court of Appeals allows the case to proceed. This raises my eyebrows since the Second Circuit has been dismissing many cases on qualified immunity grounds lately.

Public defendants are immune from suit if the law was not clearly-established at the time of the violation. You don't need a case on all-fours to show the law was clearly-established, but the constitutional violation must have been sufficiently apparent to put public employees on notice that they are breaking the law. Reviewing the case law governing inmate exercise, the Court of Appeals frames it this way:

Taken together, our earlier decisions have clearly established the right for inmates to have some meaningful opportunity for exercise unless the prison has a legitimate safety justification and has adequately considered feasible alternatives. The district court in this case defined the clearly established right similarly and therefore correctly stated “the level of generality at which the relevant ‘legal rule’ is to be identified.”

The question here, then, is whether reasonable persons in defendant's position would have understood that their conduct violated clearly-established law.For purposes of this appeal, the Second Circuit assumes there was no valid safety rationale to justify placing plaintiff in handcuffs during recreation time. In light of that, the Court says,

if it finds unpersuasive a proffered safety justification, a reasonable jury could readily conclude that a corrections official acted unreasonably by permitting an inmate to exercise only in restraints. After all, we do not see how a prison policy that required every inmate to remain in restraints during out-of-cell exercise could comport with the clearly established scope of the Eighth Amendment as to a particular inmate, unless there were a persuasive safety justification for that inmate’s restraints.