Briefs Recently Filed
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.
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 when arresting him or her. The State and Local Legal Center (SLLC) argues no 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 illness she threatened to kill them with a knife she held, so they retreated. When the officers reentered her room soon after leaving it, Sheehan stepped toward them with her knife raised and continued to hold it after the officers pepper sprayed and ultimately shot her. 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 reentering her room. Her proposed accommodations included: respecting her comfort zone, engaging in non-threatening communications, and using the passage of time to defuse the situation.
The Ninth Circuit agreed with Sheehan that Title II of the ADA applies to arrests. The ADA applies broadly to police “services, programs, or activities,” which the Ninth Circuit interpreted to mean “anything a public entity does,” including arresting people. The court refused to dismiss Sheehan’s ADA claim against the city reasoning that whether her proposed accommodations are reasonable is a question of fact for a jury.
The Ninth Circuit also concluded that reentry into Sheehan’s room violated the Fourth Amendment because it was unreasonable. Although Sheehan needed help, “the officers had no reason to believe that a delay in entering her room would cause her serious harm, especially when weighed against the high likelihood that a deadly confrontation would ensue if they forced a confrontation.”
State and local government officials can be sued for money damages in their individual capacity if they violate a person’s constitutional rights. Qualified immunity protects government officials from such lawsuits where the law they violated isn’t “clearly established.”
The Ninth Circuit refused to grant the officers qualified immunity related to their reentry: “If there was no pressing need to rush in, and every reason to expect that doing so would result in Sheehan’s death or serious injury, then any reasonable officer would have known that this use of force was excessive.” The Court 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, 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.
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.
In Comptroller v. Wynne the Court will determine whether the U.S. Constitution requires states to give a credit for taxes paid on income earned out-of-state.
Forty-three states and nearly 5,000 local governments tax residents’ income. Many of these jurisdictions do not provide a dollar-for-dollar tax credit for income taxes paid to other states on income earned out-of-state. A decision against Maryland’s Comptroller in this case will limit state and local government taxing authority nationwide.
The Wynnes of Howard County, Maryland, received S-corporation income that was generated and taxed in numerous states. Maryland’s Tax Code includes a county tax. While Maryland law allowed the Wynnes to receive a tax credit against their Maryland state taxes for income taxes paid to other states, it did not allow them to claim a credit against their Maryland county taxes.
Maryland’s highest state court held that Maryland’s failure to grant a credit against Maryland’s county tax violated the U.S. Constitution’s dormant Commerce Clause, which denies states the power to unjustifiably discriminate against or burden interstate commerce. Among other things, the Maryland Court of Appeals noted that if every state imposed a county tax without a credit, interstate commerce would be disadvantaged. Taxpayers who earn income out of state would be “systematically taxed at higher rates relative to taxpayers who earn income entirely within their home state.”
The State and Local Legal Center (SLLC)/International Municipal Lawyers Association (IMLA) amicus brief points out that state and local governments must make complex policy choices and tradeoffs when devising a taxing system. If Maryland was required to provide a dollar-for-dollar tax credit, a neighbor with substantial out-of-state income would contribute significantly less to pay for local services than a neighbor earning the same income in-state, even though both take equal advantage of local services. And to counterbalance a dollar-for-dollar tax credit, a county would need to raise some other tax, which would fall disproportionately on some other neighbor and often be more regressive. The brief argues that Maryland’s policy choice to avoid these results “does not cross any constitutional line.”
Paul Clement and Zack Tripp of Bancroft wrote the SLLC/IMLA brief. The National Conference of State Legislatures, the National League of Cities, the National Association of Counties, the International City/County Management Association, the United States Conference of Mayors, and the Government Finance Officers Association joined the brief.