4th Circuit (Unreported)- Employment Law - Due Process - Burden of Proof Although unreported, this case gives a nice discussion of some issues associated with terminations and burden of proof that may prove insightful. An employee of the prosecutor used systems involving confidential information outside the parameters of permitted use. She was caught and told to appear for an interview. She failed to appear. She was suspended and ultimately fired for both refusing to appear as directed and for the violation of policy. She was given an opportunity pre-termination to respond to the charges and sought and received a termination hearing that lasted two days. The County policy provided that she had the burden of proof as to why she should not be terminated. On appeal to the 4th Circuit from a lower court decision rejecting her claims, the court found that the hearing board had found that the employer had presented a preponderance of evidence sufficient to justify the termination. In a footnote the panel observed that had she been required to shoulder the burden of proof that might well be sufficient for due process. Smith vs. St. Mary's County, 211947.U.pdf (uscourts.gov)<https://www.ca4.uscourts.gov/opinions/211947.U.pdf> Learning lesson: The key to supporting a termination must be due process. Whether due process requires the employer to shoulder the burden of proof or the employee ought not to be the question, but rather whether due process is satisfied under either burden. See the footnote. 10th Circuit - Sheriffs - Off-duty - Knuckleheads This case involves an off-duty sheriff's deputy who while travelling with a child strapped legally in a child seat began an aggressive driving road rage act that ultimately led to this federal case and a denial of qualified immunity. The off-duty officer taking umbrage at something with another car chased the car to its eventual destination and declined back-up support. The driver was legally armed and carrying. As one might imagine, the driver, not knowing who the heck was chasing him, got out of his car with his handgun in his pocket. Things escalated with the deputy shouting at the other driver but without shots being fired. Once the deputy identified himself as law enforcement the driver put the gun back in the vehicle. Long story short, the officer was fired and convicted of child endangerment and assault in state court. The lower court granted qualified immunity to the now former officer for unreasonably pointing his gun at the plaintiff because the driver was armed. The panel concluded that no reasonable officer would have acted as did the defendant and therefor no qualified immunity. As pointed out to me about a previous squib - these cases often rest on the allegations of the Plaintiffs alone and the real facts may be different, so don't shoot the messenger as I try to make sense of some of these crazy cases. Rosales vs. Bradshaw 010110882398.pdf (uscourts.gov)<https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110882398.pdf> 9th Circuit - Homelessness - 8th Amendment - Sleeping/Camping Bans IMLA participated as an amicus in this matter on a request for review of a previously absurd decision. The 9th Circuit, being the 9th Circuit, didn't walkaway from it's basic holding regarding public camping/sleeping bans, but at least cabined the injunctive relief to a more reasonable limit. Basically, the court held: "Pursuant to Martin, it is an Eight Amendment violation to criminally punish involuntarily homeless persons for sleeping in public if there are no other public areas or appropriate shelters where those individuals can sleep."[From the syllabus.] Because the case is long and the judges prolix, I'll leave it to those with interest to read the decision. Hopefully, the Supreme Court will take the issue up. But on a local, state and national level all of us need to balance the sanctity of peaceful living in a community [Village of Belle Terre vs Borass] and the necessity that communities address the problems of addiction, mental health and economic homelessness or we'll all be left with urban decay. Sorry for the rant. JOHNSON V. CITY OF GRANTS PASS 20-35752.pdf (uscourts.gov)<https://cdn.ca9.uscourts.gov/datastore/opinions/2023/07/05/20-35752.pdf> 6th Circuit - Wrongful Conviction - Immunities absolute and qualified - As the court noted at the outset of the opinion, this is a case for the silver screen. A man apparently wanted a three-way and things didn't turn out quite the way he expected. Instead, he was found blindfolded, tied to a bed and shot. Ouch. The investigation did not go well and as time passed, the officers heard from a snitch who told them varying stories. Accepting some of those stories a true despite later denials, the officers eventually arrested a guy. As the prosecution moved forward, the defense sought some information from one of the witnesses and the local prosecutor told her to destroy it. Ouch again. The short version of this story is that the prosecutor got absolute immunity and the officer got qualified immunity. The court didn't take kindly to the prosecutor's actions, nor should we:" That said, immunity from suit does not immunize badly behaving prosecutors from other forms of accountability-they can be subjected to court sanctions, removal from office, and criminal charges, among other ramifications." Price v. Montgomery County 23a0145p-06.pdf (uscourts.gov)<https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0145p-06.pdf> 9th Circuit - First Amendment Oregon's two party consent wiretap law struck down due to violation of the First Amendment. Project Veritas vs.Schmidt 22-35271.pdf (uscourts.gov)<https://cdn.ca9.uscourts.gov/datastore/opinions/2023/07/03/22-35271.pdf> Ohio Court of Appeals (3rd District)- Fighting Words Apparently, calling a neighbor "a redheaded bitch" in the context of this case did not amount to fighting words. The Ohia court did a great job analyzing what could be and what might not be "fighting words" and its analysis might be a good teaching tool for police. As we know, disorderly conduct often results in large damage awards without much benefit in terms of de-escalation. State v. Gibson, 2023 Ohio 2202 - Ohio: Court of Appeals, 3rd Appellate Dist. 2023 - Google Scholar<https://scholar.google.com/scholar_case?case=17105038295800623391> 7th Circuit - Qualified Immunity - Sexual Assault A seventeen year old took a ride-along with a police officer as part of a school requirement. Things strayed from the noble concept to the seedy when the officer sexually assaulted the young woman and offered her to another officer for sex. Bear in mind these are the pleadings. She sued and the lower court granted the chief and the officer immunity. The panel affirmed as to the chief, but made it pretty clear that officers should know that sexually assaulting a woman while on duty is not constitutionally protected conduct. (Hard for me to understand why the District Court didn't think so too, but who am I.) Hess vs. Garcia processWebInputExternal.pl (uscourts.gov)<https://media.ca7.uscourts.gov/cgi-bin/OpinionsWeb/processWebInputExternal.pl?Submit=Display&Path=Y2023/D07-05/C:22-1550:J:Hamilton:aut:T:fnOp:N:3070315:S:0> 11th Circuit - Qualified Immunity - Corporations -Racial Discrimination - Code Enforcement I got this case and thank Bennett Bryan from DeKalb County for it. Nice Win Bennett! I'll copy his analysis - The plaintiff is a minority-owned corporation that operates an Ethiopian restaurant. In 2016, fire and code enforcement officials inspected the club and found several code violations, so they revoked its permits and ordered the plaintiff to shut down until the restaurant came into compliance. The plaintiff filed suit, alleging that the officials conspired to shut down the club in violation of every constitutional amendment under the sun. Those claims were dismissed on res judicata grounds. The plaintiff also filed racial discrimination claims under 42 USC Secs. 1981 and 1985(3), which are the subject of the opinion. We filed a motion to dismiss those claims on qualified immunity grounds, arguing that the application of 1981 and 1985(3) to corporate plaintiffs is not clearly established in light of the Supreme Court's opinion in Village of Arlington Heights v. MHDC, 429 U.S. 252, 263 (1977) where the Court explained that corporations have no racial identity and cannot be the direct target of racial discrimination. The district court disagreed, but the Eleventh Circuit reversed and granted qualified immunity. In an unpublished opinion, the panel held that the law is not clearly established concerning whether corporations can pursue racial discrimination claims in the first instance. Although it's unpublished, the opinion may be helpful in qualified immunity cases. In my experience, developers / property owners / nightclubs often sue local government officials, and those plaintiffs often tack on insubstantial racial discrimination claims because they know district courts generally prefer to resolve subjective intent issues at summary judgment (or trial), which puts pressure on local officials to settle insubstantial claims. This opinion may help weed out some of those claims at the MTD stage. Sheba Ethiopian Rest., Inc. v. DeKalb Cnty., Georgia, 2023 WL 3750710 (11th Cir. June 1, 2023). Charles W. Thompson, Jr. Of Counsel P: (202) 466-5424 x7110 M: (240) 876-6790 D: (202) 742-1016 [facebook icon]<https://www.facebook.com/InternationalMunicipalLawyersAssociation/>[twitter icon]<https://twitter.com/imlalegal>[linkedin icon]<https://www.linkedin.com/company/international-municipal-lawyers-association-inc./> [logo]<https://imla.org/> 51 Monroe St. Suite 404 Rockville, MD, 20850 www.imla.org<http://www.imla.org/> Plan Ahead! Plan Ahead! See IMLA's upcoming events<https://imla.org/events/>, calls and programming. Check out our On-Demand webinar library<https://netforum.avectra.com/eweb/shopping/shopping.aspx?site=imla&webcode=shopping&cart=0&shopsearchCat=Merchandise&productCat=Webinar> with 100+ webinars at your fingertips!