Briefs Recently Filed
In Kingsley v. Hendrickson the Court will specify the standard for determining what amount of force used against a pretrial detainee is excessive. The SLLC filed an amicus brief in this case arguing that the same or similar standard should apply to excessive force claims brought by pretrial detainees and post-conviction detainees.
State and local government officials can be sued for money damages for constitutional violations. The constitutional standard for excessive force depends on whether an arrestee, a pretrial detainee, or a post-conviction detainees brings the claim. The Court has never specified the standard for determining what amount of force used against a pretrial detainee is excessive. The Eighth Amendment’s prohibition against cruel and unusual punishment applies to post-conviction detainees while the Fourth Amendment’s “objectively unreasonable” standard, which is less deferential to law enforcement, applies to arrestees.
The SLLC amicus brief argues that the same standard regarding the use of force should apply to both pretrial detainees and post-conviction detainees. Jails generally commingle these two categories of inmates, and the extremely high turnover rate of jails leaves officers little time to become familiar with each individual. Pretrial detainees are often more dangerous than the post-conviction detainees housed in jails because post-conviction detainees in jails generally are serving time for relatively minor offenses whereas pretrial detainees are awaiting trial for all manner of offenses, including serious and violent crimes. The brief also argues that the Eighth Amendment standard strikes the right balance between protecting officers acting in good faith and safeguarding an inmate’s right to challenge unlawful actions.
In this case 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 bedframe, 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.
Aaron Streett, Joshua Davis, J. Mark Little, and Shane Pennington, Baker Botts wrote the SLLC brief which was joined by the National Association of Counties, the National League of Cities, the United States Conference of Mayors, the International City/County Management Association, the International Municipal Lawyers Association joined the brief.
The question the Supreme Court will decide in EEOC v. Abercrombie & Fitch Stores is simple: 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” requires sale-floor employees to wear clothing consistent with what Abercrombie sells in it stores and prohibits headwear. Samantha Elauf wore a head scarf to an interview at Abercrombie but didn’t ask for a religious accommodation. Her interviewer assumed but did not ask if she were Muslim and wore the headscarf for religious reasons. Ms. Elauf was ultimately not hired because of the headscarf. The Equal Employment Opportunity Commission (EEOC) sued Abercrombie alleging it violated Title VII by failing to accommodate Ms. Elauf’s religious beliefs. At trial, EEOC’s expert testified that some women wear headscarves for cultural rather than religious reasons.
The Tenth Circuit 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,” which Ms. Elauf did not do.
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, until this case, that had been the EEOC’s position. A contrary position requires employers to make assumptions based on stereotypes about what physical characteristics 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, 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.
A Los Angeles ordinance requires hotel and motel operators to keep specific information about their guests and allows police to inspect the registries without warrants. Motel operators claim this ordinance is facially invalid under the Fourth Amendment. The Ninth Circuit agreed, because the ordinance fails to expressly provide for pre-compliance judicial review before police can inspect the registry.
The SLLC filed an 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.
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 McCarthy, William 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.
The Supreme Court’s decision in 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. The Court could rule, practically speaking, that all temporary signs must have the same time, place, and manner requirements.
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, usually classified by function, with their own time, place, and manner requirements, are common. 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, Rogers Towers 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, the International Municipal Lawyers Association, the American Planning Association, and Scenic America.