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SPRING 2008 NEWSLETTER

MUNICIPAL LAW UPDATE
by Joshua Skinner and John Husted

UNITED STATES SUPREME COURT

Brendlin v. California, __ U.S. __, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (June 18, 2007)

A passenger in a car stopped by police without adequate justification has standing to challenge the constitutionality of the stop.

Without any legitimate basis for his actions, a sheriff pulled over a car in which Brendlin was a passenger. The sheriff recognized Brendlin as a parole violator with an outstanding warrant for his arrest. The sheriff arrested Brendlin, and found drug paraphernalia. Brendlin was charged with possession and manufacture of methamphetamine, and he moved to suppress the evidence obtained in the search as fruit of an unconstitutional seizure, arguing that the sheriff lacked probable cause or reasonable suspicion to stop the car. The trial court denied the suppression motion, finding that Brendlin was not seized until he was ordered out of the car and arrested. He pled guilty, subject to appeal of the suppression issue, and was sentenced to four years in prison.

For Fourth Amendment purposes, a seizure occurs, in view of all the circumstances, when a reasonable person would have believed he was not free to leave. The Court held that when a police officer makes a traffic stop, a passenger, as well as the driver, is seized and may challenge the constitutionality of the stop. The Supreme Court held that the evidence should have been suppressed.

Sole v. Wyner, __ U.S. __, 127 S. Ct. 2188, 167 L. Ed. 2d 1069 (June 4, 2007)

A plaintiff is not entitled to an award of attorneys fees in a civil rights claim for obtaining a preliminary injunction where the plaintiff was ultimately unsuccessful on the merits of the claim and a permanent injunction was denied.

For §1983 private actions, Congress has established an exception to the general rule that prevailing parties ordinarily are not entitled to collect attorneys fees from the loser. Federal courts are authorized, in their discretion, to allow the prevailing party a reasonable attorneys fee as part of the costs. But a plaintiff who gains a preliminary injunction after an abbreviated hearing, but is denied a permanent injunction after a dispositive adjudication on the merits, does not qualify as a prevailing party. Even when there is a preliminary injunction, the case is regarded as a unit, not two stages of litigation.

Los Angeles County v. Rettele, __ U.S. __, 127 S. Ct. 1989, 167 L. Ed. 2d 974 (May 21, 2007)

Police officers did not violate the Fourth Amendment prohibition on unreasonable searches and seizures when they, pursuant to a valid search warrant for the house formerly occupied by the suspects, ordered the current residents from their bed and required them to remain standing unclothed for a brief period, even though the current residents were of a different race.

After obtaining a valid search warrant for two houses where he believed four African-American suspects of a fraud and identity-theft crime ring could be found, Deputy Dennis Watters and six other deputies went to the house at 7 a.m. They knew one of the suspects owned a handgun. The deputies knocked and announced, were let in by minor Chase Hall, entered the bedroom of Rettele and Sadler, and ordered them to get out of their bed and to show their hands. They were undressed. The deputies did not allow them to cover themselves, and held Rettele and Sadler at gunpoint for one to two minutes before permitting them to dress. The deputies realized their mistake, apologized, thanked Rettele and Sadler and left within five minutes. They proceeded to the other house and found the suspects who were arrested and convicted. Rettele and Sadlery alleged that the deputies violated their Fourth Amendment rights by obtaining a warrant in a reckless fashion and conducting an unreasonable search and detention. The district court concluded that the deputies were entitled to qualified immunity and the Ninth Circuit reversed.

Recognizing that the warrant was valid, that people of different race live together and might engage in joint criminal activity, and that Rettele and Sadler were not forced to stand for any longer than was necessary, the Supreme Court determined that the search was objectively reasonable. The Court acknowledged respondents’ frustration, embarrassment, and humiliation, but when officers execute a valid warrant in a reasonable manner in order to protect themselves from harm, the Fourth Amendment is not violated. Therefore, the Supreme Court reversed and remanded.

United Haulers Ass’n., Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., __ U.S. __, 127 S. Ct. 1786, 167 L. Ed. 2d 655 (April 30, 2007)

Flow control ordinances that required delivery of all solid waste to facilities operated by a public entity, and that imposed certain fees in excess of what would be charged in the open market, did not violate the Commerce Clause.

Generally, a “flow control” ordinance requires trash haulers to deliver solid waste to a particular waste processing facility. The counties of Oneida and Herkimer in New York, which suffered from excess waste and corrupt business practices, created a Solid Waste Management Authority (Authority) to effectively combat the counties’ waste disposal crisis. The counties enacted ordinances that required haulers to deliver waste to particular Authority-managed facilities. The facilities collected “tipping fees” to cover costs. The tipping fees exceeded those charged in the open market. The plaintiff, a trade association made up of solid waste management companies and six haulers that operated in the counties of Oneida and Herkimer when the counties passed flow control laws, alleged that the laws discriminated against interstate commerce, violating the Commerce Clause.

The Supreme Court affirmed the Second Circuit’s decision that the ordinances are constitutional. Though the Court had previously struck down a very similar flow control ordinance, it distinguished the ordinances here, since they required haulers to bring waste to facilities owned and operated by a state-created public benefit corporation instead of a private processing facility. Applying the test for facially nondiscriminatory statutes, the Court weighed the burdens imposed on interstate commerce against the benefits, and found that the burden imposed was not clearly excessive. Noting that waste disposal has been a traditional government activity, the Court held that laws that favor the government in such areas, but treat every private business, whether in-state or out-of-state, exactly the same, do not discriminate against interstate commerce. Any incidental burden imposed on interstate commerce here did not outweigh the benefits.

Scott v. Harris, __ U.S. __, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (April 30, 2007)

A police video recording of a highway chase can be dispositive of any material issues of fact as to the reasonableness of the police officers’ conduct, despite contradictory evidence submitted by the plaintiff.

When a Georgia deputy indicated that plaintiff should pull over because he was speeding, the plaintiff sped away and a chase ensued. After the chase had continued for at least ten miles, one of the officers applied his bumper to the rear of the plaintiff’s vehicle, causing the plaintiff to lose control and crash. The plaintiff brought suit alleging that his Fourth Amendment rights were violated by an alleged use of excessive force. The officer filed for summary judgment based on the police videotape of the incident. The district court and Eleventh Circuit denied his motion.

The Supreme Court reversed the lower courts, holding that the videotape is dispositive of the question regarding the degree to which the chase was a dangerous situation. The Supreme Court concluded that a court should not adopt a version of the facts that is blatantly contradicted by the record. Based on the videotape, the high likelihood of serious injury or death to the plaintiff was outweighed by the prevention of the actual and imminent threat to the lives of pedestrians, motorists, and police officers. The Court held that when considering the certainty of harm the officer’s action might inflict, it is appropriate to consider the number of lives at risk and the culpability of those involved.

FIFTH CIRCUIT

Brown v. Miller, __ F.3d __, 2008 U.S. App. Lexis 4169 (5th Cir. February 27, 2008)

Suppression of exculpatory evidence, either by providing a misleading laboratory report or by suppressing exculpatory test results, by a state medical expert in a criminal prosecution is a clearly established violation of the criminal defendant’s rights to due process of law and a fair trial.

Brown was convicted of rape and sentenced to life in prison. Twenty years later, DNA testing proved him innocent, and he was released. He sued the city of Covington, Louisiana, and several of its officers (including Miller) for their alleged misconduct in the investigation and prosecution of his case. Brown alleged that Miller, who conducted comparison tests on Brown’s blood and samples from the crime, either failed to conduct tests necessary to a conclusive result and that would have proven Brown’s innocence or suppressed the exculpatory evidence of those tests. Brown alleged, pursuant to 42 U.S.C. § 1983, that Miller violated his rights to due process of law and a fair trial.

Miller filed a motion to dismiss, arguing that he was entitled to qualified immunity from Brown’s federal causes of action and official immunity from the state causes of action. The district court denied Miller’s motion. The Fifth Circuit held that it was clearly established in 1984 that a reasonable laboratory technician would have understood that the deliberate or knowing creation of a misleading and scientifically inaccurate serology report amounts to a violation of a criminal defendant’s due process rights. In addition, a reasonable technician would also have understood that the suppression of exculpatory blood tests would violate a criminal defendant’s right to a fair trial. The Fifth Circuit affirmed the district court’s denial of Miller’s motion to dismiss based on qualified immunity.

Hutchins v. McDaniels, 512 F.3d 193 (5th Cir. December 21, 2007)

The Prison Litigation Reform Act (PLRA) requires prisoners bringing any federal civil action to have suffered physical injury. The physical injury requirement does not apply, however, to a prisoner’s ability to pursue nominal and punitive damages based on alleged civil rights violations.

Hutchins, a Texas prisoner, alleged that McDaniels, a prison officer, violated his Fourth Amendment rights when he conducted a strip and cavity search of Hutchins. The district court dismissed Hutchins’ claim as frivolous and for failure to state a claim under the PLRA and for not meeting the physical injury requirement under the PLRA (42 U.S.C. § 1997e(e)). On appeal, Hutchins argued that (1) the district court erred in dismissing his Fourth Amendment claim, (2) the physical injury requirement of Section 1997e(e) does not apply to Fourth Amendment claims and (3) even if Section 1997e(e) does apply, it does not limit a prisoner’s ability to pursue nominal and punitive damages based on violations of the Fourth Amendment.

The Fifth Circuit reversed the district court’s dismissal. The Fifth Circuit explained that the district court erroneously considered Hutchins’ illegal search claim under the Eighth Amendment (cruel and unusual punishment) rather than the Fourth Amendment. The Fifth Circuit previously held in Moore v. Carwell, 168 F.3d 234 (5th Cir. 1999), that the strip and cavity search of a prisoner can rise to the level of a Fourth Amendment violation. While the Fifth Circuit rejected Hutchins’ claim that Section 1997e(e) does not apply to Fourth Amendment claims, the Fifth Circuit held that Section 1997e(e)’s requirement of physical injury does not limit a prisoner’s ability to pursue nominal and punitive damages based civil rights violations.

Hathaway v. Bazany, 507 F.3d 312 (5th Cir. November 1, 2007)

A police officer was entitled to qualified immunity from a Fourth Amendment excessive force claim because his actions were objectively reasonable when he shot at and killed a teenage driver who he had ordered to stop just as or while the officer was being struck by the vehicle that the teenager was driving. The plaintiffs had the burden of disproving entitlement to qualified immunity.

Officer Bazany ordered Hathaway to stop the vehicle he was driving because it was acting erratically and was suspected of involvement in a gang-related altercation. Hathaway sped up, heading straight for Bazany. The vehicle struck Bazany. Either just before, during, or just after the vehicle struck Bazany, Bazany shot at Hathaway and killed him. The autopsy report could not establish whether Bazany shot before, during, or after being struck by the vehicle and the only admissible testimony was Bazany’s – who stated that he shot before or while being struck by the vehicle. The district court granted summary judgment to Bazany and the Hathaways, on behalf of their deceased son, appealed. The Fifth Circuit affirmed the decision of the district court, explaining that the burden of disproving Bazany’s entitlement to qualified immunity was on the Hathaways.

Alice L. v. Dusek, 492 F.3d 563 (5th Cir. July 12, 2007)

A motion to stay discovery proceedings pending an interlocutory appeal of a denial of qualified immunity was denied when the appellant was subject to discovery requests on claims not protected by qualified immunity.

Jennifer Dusek sought to stay all district court proceedings pending her interlocutory appeal of the district court’s denial of qualified immunity. The district court denied her request to stay Title IX discovery proceedings against Dusek’s co-defendant, Eanes ISD, and ordered her to comply with certain interrogatories and requests for production in the Title IX matter.

A notice of appeal from an interlocutory order does not produce a complete divestiture of the district court’s jurisdiction over the case, but only over those aspects of the case on appeal. Where an appeal is allowed from an interlocutory order, the district court may proceed with matters not involved in the appeal. Though qualified immunity is an entitlement to be free from the burdens of time-consuming pre-trial matters and the trial itself, it is a right to immunity from certain claims, not from litigation in general. Even though the factual basis of the Title IX claims and the §1983 claim overlap, such discovery requests do not implicate her right to qualified immunity since Dusek cannot assert qualified immunity from the Title IX claim. The district court may compel discovery related to those claims, because they do not interfere with any aspect of her appeal.

Disraeli v. Rotunda, 489 F.3d 628 (5th Cir. June 13, 2007)

Three employees of a state securities board who helped execute an emergency cease and desist order against an unlicensed investment adviser who was advertising unregistered securities enjoyed absolute immunity from civil liability, because their actions were quasi-judicial or prosecutorial in nature.

Rotunda, an enforcement attorney noticed an advertisement placed by Disraeli that indicated possible violations of Texas’s securities laws. She then investigated Disraeli, and found several violations and misrepresentations. Rotunda brought her findings to the other two employees, and they drafted and executed an Emergency Cease and Desist Order ordering Disraeli to stop offering the securities until the securities could be registered, using misleading offers, and rendering services as an investment advisor without a license. Disraeli filed suit alleging that the three officials violated his right to due process by issuing the emergency order, and the defendants asserted absolute immunity.

Judges and prosecutors are generally entitled to absolute immunity. Absolute immunity is also available to certain quasi-judicial or prosecutorial officers and agencies. The Fifth Circuit applied a non-exhaustive list of factors to determine whether an administrative employee is entitled to absolute immunity, which includes: the need to assure that one can perform his duty without harassment, the presence of safeguards that reduce the need for private damages to enforce the constitution, insulation from political influence, the importance of precedent, the adversary nature of the process, and the correctability of error on appeal. In light of these, the court held that the officials were entitled to absolute immunity.

DeLeon v. City of Corpus Christi, 488 F.3d 649 (5th Cir. May 31, 2007)

A plaintiff is barred from bringing a civil action against his arresting officers if the plaintiff has been convicted or sentence. Under Texas law, a deferred adjudication qualifies as a conviction and thus bars a plaintiff from bringing suit.

Christopher DeLeon’s brought suit against the City of Corpus Christi and a police officer for false arrest, false imprisonment, malicious prosecution, illegal search and seizure, and use of excessive force. The district court dismissed his complaint as barred under Heck v. Humphrey, 512 U.S. 477 (1994), because he pleaded guilty and received deferred adjudication in his charge of aggravated assault of a police officer.

Pursuant to Heck, a civil action is inappropriate to challenge the validity of outstanding criminal judgments. If a judgment in favor of a plaintiff against his arresting officers would imply the invalidity of his conviction or sentence, the claim is barred unless the conviction has been reversed, expunged, declared invalid, or called into question by issuance of a writ of habeas corpus. Under Texas law, DeLeon’s deferred adjudication was a “conviction” for purposes of Heck. DeLeon’s claims are dismissed with prejudice to their being asserted again until the Heck conditions are met.

Houston Chronicle Publ. Co. v. City of League City, 488 F.3d 613 (5th Cir. May 30, 2007)

A city’s repeal of an unconstitutional ordinance does not moot a plaintiff’s claim as a “prevailing party” for attorneys fees after the district court has entered judgment and an injunction against the city.

The City enacted an ordinance regulating solicitation on its streets. Citations were issued to The Houston Chronicle’s vendors. The Chronicle and Daily News filed actions against the City claiming that the ordinance governing street vendors violated the First and Fourteenth Amendments by enforcing content-based discrimination. The district court found for the newspapers and issued an injunction against the City from enforcing the ordinance. The City legislature subsequently repealed the unconstitutional parts of the Ordinance, though the injunction remained. It then challenged the injunction.

The Fifth Circuit concluded that the amended ordinance was constitutional. Regardless, the Fifth Circuit declined to vacate the injunction because it was entered after final judgment. Moreover, the newspapers were entitled to attorney’s fees as “prevailing parties.”

Breen v. Texas A&M Univ., 485 F.3d 325 (5th Cir. April 24, 2007), modified, 494 F.3d 516 (5th Cir. July 26, 2007), cert. denied, __ U.S. __, 128 S. Ct. 377, 169 L. Ed. 2d 260 (2007)

It remains uncertain whether the Fifth Circuit has or will recognize a substantive due process claim under the state-created danger theory, i.e., that the state created a dangerous environment and was deliberately indifferent to the safety of known persons. If there is a state-created danger theory of liability in the Fifth Circuit, a plaintiff must show that the state actors increased the danger to him from a third-party and that the state actors acted with deliberate indifference.

TThis is the second appeal from the Texas A&M bonfire disaster. In the earlier decision, Scanlan v. Tex. A&M Univ., 343 F.3d 533 (5th Cir. 2003), the Fifth Circuit reversed dismissal of state-created danger claim against Texas A&M University, holding that the facts as alleged by the plaintiffs “stated a section 1983 claim under the state-created danger theory.” Prior to Scanlan, the Fifth Circuit had not recognized the state-created danger theory. Subsequent to Scanlan, however, various Fifth Circuit panels held that Scanlan did not recognize the state-created danger theory. In this appeal, the Fifth Circuit held on April 24, 2007, that Scanlan did recognize the state-created danger theory because it was a necessary component of its holding. Nevertheless, the panel granted qualified immunity because the state-created danger theory was not clearly established. On July 26, 2007, the panel in Breen revised its opinion sua sponte and, without explanation or comment, withdrew those parts of its April 24th opinion that stated Scanlan recognized the state-created danger theory.

Meadours v. Ermel, 483 F.3d 417 (5th Cir. April 2, 2007)

The reasonableness of police officers’ conduct in an excessive force claim should be considered individually, even if they acted in unison.

The Defendants, four City of La Porte police officers shot and killed mentally ill Bob Meadours with a bean bag gun and eventually, their service weapons, when he “flipped out” with a threatening screw driver. His parents brought a claim for use of excessive force.

Though the Fifth Circuit Court ultimately denied summary judgment, it stated that district court was imprudent in fashioning a rule that if the defendants act in unison, their conduct should be considered collectively. The court held that the district court erred in considering the officers’ actions collectively. The Court stated that the actions of officers should be considered separately, and instructed the district court to do so on remand.

Teague v. Quarterman, 482 F.3d 769 (5th Cir. March 21, 2007)

An inmate’s 30-day loss of previously earned good-time credit was not de minimis, so as to forgo procedural due process, and habeas relief was ordered when no evidence supported the disciplinary action. A prison must accord an inmate due process before depriving him of any previously earned good-time credits, however slight.

Teague, an inmate in the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID) was found guilty of having violated an anti-trafficking and trading provision of the rules of prisoner conduct. No evidence regarding Teague’s knowledge was presented. Part of his punishment included forfeiting thirty days of his earned good-time credit. Teague exhausted the internal grievance procedures, and then filed a petition in the district court seeking a writ of habeas corpus.

When due process is required, the standard in prison disciplinary hearings requires that there be “some evidence” to support the disciplinary decision. The court noted that a prisoner has a liberty interest in a constitutionally established expectancy to an early release based on earned credits, so he is entitled to due process in an action to deprive him of such credits. There is no de minimis exception to a prisoner’s entitlement to minimum procedures of due process.

TEXAS SUPREME COURT

Nueces County v. San Patricio County, __ S.W.3d __, 51 Tex. Sup. J. 378 (Tex. January 25, 2008) (per curiam) (publication status pending)

Counties are entitled to governmental immunity (including in suits by another county) unless there has been a specific waiver of immunity by the legislature. Counties, unlike municipalities, have no proprietary functions. All of their functions are governmental in nature and therefore entitled to immunity, even if the action goes beyond the limits of the authority given to the county.

San Patricio County sued Nueces County to establish their common boundary line and to recover taxes on the disputed land. The trial court ruled in favor of San Patricio County on the boundary dispute, but held that Nueces County was entitled to governmental immunity from the claim for past taxes. The court of appeals affirmed on the boundary dispute, but reversed on the question of governmental immunity.

The court of appeals reasoned that a county is only authorized to collect taxes on the land within its boundaries. As a result, Nueces County’s actions were not governmental in nature, but proprietary and therefore not entitled to governmental immunity. The Supreme Court held that Nueces County was entitled to governmental immunity because counties only perform governmental functions, not proprietary functions. That a county is going beyond its authority does not change the fact that it is engaging in a governmental function.

City of Rockwall v. Hughes, __ S.W.3d __, 51 Tex. Sup. J. 349 (Tex. January 25, 2008) (publication status pending)

A municipality generally must annex land pursuant to a plan giving three years’ notice of its intent to annex. If an area is exempt from the three-year notice requirement, then annexation can take place by use of abbreviated procedures with less notice of a city’s intent to annex. If a landowner believes his property should be part of the three-year annexation plan, the landowner may request inclusion and, if the municipality fails to take action, the landowner may request arbitration. If the City denies that request, however, the landowner is not entitled to arbitration.

The City of Rockwall gave notice to a landowner that it intended to annex the landowner’s property in accordance with the abbreviated annexation procedures. The landowner sought inclusion in the City’s three-year annexation plan, but the City denied the request, claiming that the proposed annexation was statutorily exempt from the three-year requirement. The landowner requested arbitration pursuant to Texas Local Government Code § 43.052(i) and the City refused. The landowner sough a court order compelling arbitration. The trial court refused to compel arbitration and dismissed the case for lack of jurisdiction. The court of appeals reversed and held that the City must arbitrate. The Texas Supreme Court reversed the decision of the court of appeals and affirmed the decision of the trial court dismissing the suit.

Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653 (Tex. June 29, 2007)

A landowner who dedicates a public easement for recreational purposes is entitled to the protection of the recreational use statute. The court of appeals erred in rejecting SFA’s plea under the recreational use statute because no material factual dispute exists regarding its application in this case.

The Lanana Creek Trail is a community trail open to the public. Part of the trail crosses SFA’s campus. SFA granted an easement to the City of Nacogdoches for it. Diane Flynn was crossing the SFA portion on her bike when a stream of water from a sprinkler forced her offer her bike, causing her injury. Flynn sued SFA for damages under the Tort Claims Act, alleging that her injuries were proximately cause by its negligence. SFA filed a plea to the jurisdiction and motion to dismiss arguing that sovereign immunity had not been waived under the Tort Claims Act and that it was entitled to protection under the recreational use statute, because the public had permission to use the property for recreational purposes.

Though SFA’s acts fell within the Tort Claims Act waiver of immunity for claims involving the use of property, its actions were protected by the recreational use statute. Even though SFA dedicated a public easement over the campus for use as a recreational trail, it retained ownership, and as the owner, SFA retained its status as a member of the class protected by the recreational use statute. The statute protects the landowner who permits use of its land by the public for recreational purposes. Under the statute, one does not assume responsibility for the actions of those admitted to the property. For this reason, the court dismissed the case.

City of San Antonio v. Ytuarte, 229 S.W.3d 318 (Tex. May 4, 2007)

Police officers act in good faith in police pursuit cases, and are thus entitled to official immunity, if a reasonably prudent officer under similar circumstances could have believed that the need to immediately apprehend the suspect outweighed a clear risk of harm to the public in continuing (rather than terminating) the pursuit.

The police began pursuing a suspect in a stolen Suburban shortly after an aggravated robbery and car jacking were reported. The police pursuit included five police cars and a helicopter. The officers were directed to back off to make the suspect believe he had evaded the officers. Shortly thereafter, the suspect lost control of the Suburban and crashed, injuring a bystander, Dolores Ytuarte. Ytuarte filed suit and the defendant responded by asserting immunity and moving for summary judgment. The court determined that the relevant test is whether no reasonably prudent officer could have assessed the need and risks as the police officers did in this case. The test is one of objective legal reasonableness where immunity protects all but the plainly incompetent or those who knowingly violate the law. The court found that there was good faith in the officers’ beliefs under the circumstances, and a good faith weighing of the need to apprehend and the risk factors; thus, the court reversed the court of appeals judgment and rendered judgment dismissing the case.

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