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Briefs Recently Filed

District of Columbia v. Wesby

Imagine how often when police officers are deciding whether to arrest someone they are told a version of a story they don’t find believable. In a Supreme Court amicus brief in District of Columbia v. Wesby the State and Local Legal Center (SLLC) argues that the D.C. Circuit erred by applying an inflexible rule that when officers are making arrest decisions they must believe a suspect’s version of the story, even when circumstantial evidence indicates otherwise.

In this case police officers arrested a group of late-night partygoers for trespass. The party-goers gave police conflicting reasons for why they were at the house (birthday party v. bachelor party). Some said “Peaches” invited them to the house; others said they were invited by another guest. Police officers called Peaches who told them she gave the partygoers permission to use the house. But she admitted that she had no permission to use the house herself; she was in the process of renting it. The landlord confirmed by phone that Peaches hadn’t signed a lease. The partygoers were never charged with trespass.

The partygoers sued the police officers for violating their Fourth Amendment right to be free from false arrest. To be guilty of trespass the partygoers had to have entered the house knowing they were doing so “against the will of the lawful occupant or of the person lawfully in charge.” They partygoers claimed they did not know they lacked permission to be in the house.  

D.C. Circuit granted the partygoers summary judgment reasoning the police officers lacked probable cause to make the arrest for trespass because:  “All of the information that the police had gathered by the time of the arrest made clear that Plaintiffs had every reason to think that they had entered the house with the express consent of someone they believed to be the lawful occupant.”

Dissenting Judge Brown concluded that summary judgment was inappropriate in this case where “the probable cause determination [that trespass occurred] turns on close questions of credibility, as well as the reasonability of inferences regarding culpable states of mind that officers draw from a complicated factual context.” Evidence (like the host not being there, the different reasons cited for the party, the lack of furnishing in the house, etc.) cast doubt on the credibility of the partygoers’ statements that they believed they had permission to enter the house.

The SLLC amicus brief points out that police officers encounter numerous situations that require split-second decision-making. For this reason the Supreme Court “has consistently assessed police officers’ decisions to search and arrest under a flexible probable cause standard that gives deference to the officers’ experience and expertise.” The brief argues that the D.C. Circuit “deviated from this standard by applying a rigid rule that officers must believe a suspect’s statements, even when circumstantial evidence indicates otherwise.” Discouraging police from relying on their own credibility determinations will have negative repercussions in a wide range of crimes, not only trespass, which will negatively affect public safety.

John J. Korzen, Wake Forest University School of Law Appellate Advocacy Clinic, wrote the SLLC brief which was joined by the National Association of Counties, National League of Cities, International City/County Management AssociationInternational Municipal Lawyers Association, and the National Sheriffs Association.      

Town of Chester v. Laroe Estates 

In its Supreme Court amicus brief in Town of Chester v. Laroe Estates the State and Local Legal Center (SLLC) argues that interveners to lawsuits must have standing even if there is a genuine case or controversy between the existing parties.

Steven Sherman sued the Town of Chester alleging an unconstitutional taking as the town refused to approve a subdivision on plots of land Sherman intended to sell to Laroe Estates. Laroe Estates advanced Sherman money for the land in exchange for a mortgage on the property. Sherman defaulted on a loan to a senior mortgage holder who foreclosed on the property.

Laroe Estates, claiming to be the owner of the property, sought to “intervene” in the takings lawsuit. The Federal Rule of Civil Procedure grant non-parties the right to intervene who “claim an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.”  

The district court concluded that Laroe Estates lacked Article III “standing” under the U.S. Constitution to assert a takings claim against the Town. Laroe Estates argued that it was a “contract vendee” of the Sherman property. According to the district court, under longstanding circuit court precedent “contract vendees lack standing to assert a takings claim.”

The question the Supreme Court will decide in Town of Chester v. Laroe Estates is whether Laroe Estates may intervene in this case even though it lacks standing.

The Second Circuit held, based on prior circuit court precedent, Laroe Estates does not have to have standing to intervene in this lawsuit where there is a genuine case or controversy between the existing parties (here Sherman and the Town of Chester). Of the ten federal circuit courts of appeals to have ruled on this issue three have held interveners must have Article III standing.

The SLLC amicus brief argues that allowing parties without standing to intervene prolongs and complicates litigation ultimately making it more expensive. “The consequences are even more serious in cases involving state and local governments, as the cost of intervention also comes at the expense of taxpayers, complicating litigation (as well as settlement), and forcing government entities to continue to litigate in order to avoid allowing third-parties to control the results of the litigation, which can have significant public policy consequences.”

Sarah Shalf of the Emory Law School Supreme Court Advocacy Program wrote the SLLC amicus brief which was joined by the National Association of Counties, National League of Cities, United States Conference of Mayors, and the International Municipal Lawyers Association.  

Packingham v. North Carolina

The issue the Supreme Court will decide in Packingham v. North Carolina is whether a North Carolina statute prohibiting registered sex offenders from accessing social networking websites where they know minors can create or maintain a profile violates the First Amendment. The State and Local Legal Center (SLLC) amicus brief argues this law does not violate the First Amendment.

Lester Packingham was charged with violating the North Carolina statute because he accessed Facebook. In the posting that got him in trouble Packingham thanked God for the dismissal of a ticket.

If a statute limits speech based on content it is subject to strict (nearly always fatal) scrutiny. In Reed v. Town of Gilbert, Arizona (2015), the Supreme Court held that the definition of content-based is very broad. The SLLC amicus brief argues that the North Carolina law isn’t content-based. A conviction under the statute does not turn on the content of the speech; it turns on whether sex offenders have accessed websites where minors can maintain profiles.    

The brief also urges the Court to defer to state and local governments in their “good-faith attempt to solve a vexing social problem.” “Social media has become so integral to many young teenagers’ identities that, when their vulnerability leads to an encounter with a predator, they may not tell their parents for fear of losing their access to this part of their lives.”

Finally, the brief encourages the Court to resist Packingham’s assertion that the statute has an implausibly broad scope. “Packingham’s conviction arose from his access to Facebook—conduct that was squarely within the language and intended scope of the statute. The suggestion by Packingham and his amici that the statute would bar sex offenders’ access to news websites such as, and that it would be a crime to accidentally access a covered site, is inconsistent with the statutory text.”

John Neiman and Braxton Thrash of Maynard Cooper & Gale wrote the SLLC amicus brief which was joined by the Council of State Governments, the International City/County Management Association, and the International Municipal Lawyers Association.

County of Los Angeles v. Mendez 

In its amicus brief in County of Los Angeles v. Mendez the State and Local Legal Center (SLLC) asks the Supreme Court to reject the “provocation” rule, where any time a police officer violates the Fourth Amendment and violence ensues, the officer will be personally liable for money damages for the resulting physical injuries.

Everyone agrees police officers used reasonable force when they shot Angel Mendez. As officers entered, unannounced, the shack where Mendez was staying they saw a silhouette of Mendez pointing what looked like a rifle at them. The Ninth Circuit awarded him and his wife damages because the officers didn’t have a warrant in violation of the Fourth Amendment to search the shack thereby “provoking” Mendez.

Mendez kept a BB gun in his bed to shot rats when they entered the shack. Mendez claimed that when the officers entered the shack he was in the process of moving the BB gun so he could sit up in bed.

In this case the Supreme Court must decide whether to accept or reject the Ninth Circuit’s “provocation” rule. Per this rule, “[W]here an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation, he may be held liable for his otherwise defensive use of deadly force.”

The SLLC urges the Supreme Court to reject the “provocation” rule for a number of reasons. First, it holds officers liable even when they use reasonable force, contrary to Supreme Court precedent holding officers liable only for excessive force. Second, it punishes officers who may need to use force to save lives. For example, imagine if in this case Mendez really had a rifle and intended to shoot to officers at his door. Finally, the brief points out that the absence of a warrant in this case didn’t cause Mendez’s injuries. The exact same injuries would have occurred if the officers had performed the same search the same way with a warrant.

Dan Collins, Mark Yohalem, and Seth Fortin of Munger, Tolles & Olson wrote the brief which was joined by the National Association of Counties, National League of Cities, International City/County Management Association, International Municipal Lawyers Association, California State Association of Counties, League of  California Cities, and the National Sheriffs Association.          

Murr v. Wisconsin 

In Murr v. Wisconsin the Supreme Court will decide whether merger provisions in state law and local ordinances, where nonconforming, adjacent lots under common ownership are combined for zoning purposes, may result in the unconstitutional taking of property. The State and Local Legal Center (SLLC) filed an amicus brief arguing that these very common provisions are constitutional. 

The Murrs owned contiguous lots E and F which together are .98 acres. Lot F contained a cabin and lot E was undeveloped. A St. Croix County merger ordinance prohibits the individual development or sale of adjacent lots under common ownership that are less than one acre total. But the ordinance treats commonly owned adjacent lots of less than an acre as a single, buildable lot.

The Murrs sought and were denied a variance to separately use or sell lots E and F. They claim the ordinance resulted in an unconstitutional uncompensated taking.        

The Wisconsin Court of Appeals ruled there was no taking in this case. It looked at the value of lots E and F in combination and determined that the Murrs’ property retained significant value despite being merged. A year-round residence could be located on lot E or F or could straddle both lots. And state court precedent indicated that the lots should be considered in combination for purposes of takings analysis.

The SLLC brief argues that mergers provisions have been common for over half a century and their constitutionality has never been in doubt. The brief points out that minimum lot size requirements are a common way of avoiding congestion. When a lot is nonconforming (too small now that a minimum lot size has been adopted) merger (where the owner of a nonconforming lot also owns another contiguous lot the two lots are viewed as one for zoning purposes) is the solution.

“Merger provisions became common because local governments and state courts recognized that they represent an appropriate middle ground between two unattractive extremes—prohibiting the development of substandard lots, which would be a hardship to their owners, and allowing the development of all substandard lots, which would be a hardship to neighbors and the community.”

Stuart Banner of the UCLA School of Law Supreme Court Clinic wrote the SLLC amicus brief which was joined by the Council of State GovernmentsNational Association of Counties, National League of CitiesUnited States Conference of MayorsInternational City/County Management Association, and the International Municipal Lawyers Association.