CONSTITUTIONAL LAW-FIFTH AMENDMENT-TAKINGS CLAUSE-POLICE SEIZURE OF LAWFULLY OWNED GUNS

September 2nd, 2022 by Rieders Travis in Constitutional Law

Frein v. Pa. State Police, 2022 U.S. App. LEXIS 24414 (3rd Cir. August 30, 2022) (Bibas, C.J.) Police may seize potential evidence using a warrant.  They may not keep it forever.  They did that in this case.  After a man assassinated a Pennsylvania state trooper and injured another, the trooper seized his parents’ guns.  The government never used the guns as evidence.  Eight years after the crime, once the son lost his last direct appeal, the officer still refused to return them, even though the officers do not claim that the parents or guns were involved in the crime.  Because the parents were never compensated, they have a Takings claim.  Because they lawfully owned the guns, they have a Second Amendment claim too.  Since they had a real chance to challenge the government’s keeping the guns, they did get procedural due process.  The court found that the case of Bennis v. Michigan, 516 U.S. 442, 452 (1996) is no bar to the claim.  At most, the guns are potential evidence and the police do not gain title to that.  The warrant does not immunize officials who keep property this long. …

CONSTITUTIONAL LAW-PENNSYLVANIA CONSTITUTION-ENVIRONMENTAL AMENDMENT

August 22nd, 2022 by Rieders Travis in Constitutional Law

Pa. Envtl. Def. Found. v. Commonwealth, 2022 Pa. LEXIS 1127 (S. Ct. August 5, 2022) (Baer, C.J.) We reiterate that Section 27 imposes fiduciary duties on Commonwealth entities to "conserve and maintain [Pennsylvania's public natural resources] for the benefit of all the people," which includes a "duty to prevent and remedy the degradation, diminution, or depletion of our public natural resources." Pa. Const. art. 1, § 27; PEDF II, 161 A.3d at 932 (quoting Robinson Twp., 83 A.3d at 956-57). PEDF seeks a declaration that Sections 104(P) and 1601 of the General Appropriation Acts of 2017 and 2018 violate the Commonwealth's trustee duties by using trust resources to pay for the general operations of the DCNR. PEDF specifically contends that revenue from oil and gas leases of State forest and park lands deposited in the Lease Fund should not be appropriated to pay DCNR's general operations, including inter alia, the "salaries, wages or other compensation and travel expenses" of DCNR officers and employees of the Commonwealth, or for the "purchase or rental of goods and services" or "any other expenses . . . necessary for the proper conduct of the…

CONSTITUTIONAL LAW-FIRST AMENDMENT-SPEECH-DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA EQUAL RIGHTS PROVISION

July 11th, 2022 by Rieders Travis in Constitutional Law

Greenberg v. Goodrich, 2022 U.S. Dist. LEXIS 52881 (E.D. Pa. March 24, 2022) (Kenney, J.)  This Court fully commends and supports the aims and intentions of the American Bar Association ("ABA") in its creation of the ABA Model Rule 8.4(g) as a statement of an ideal and as a written conviction that we must be constantly vigilant and work towards eliminating discrimination and harassment in the practice of law. If the ABA were to apply the Model Rule as a standard to maintain good standing for its voluntary members, it would indeed be the gold standard. It is a measure that most members of the ABA would aspire to, as would the vast number of those in the profession not represented by the ABA. When, however, the ABA standard is adopted by government regulators and applied to all Pennsylvania licensed lawyers, as in this instance by the Disciplinary Board of the Supreme Court of Pennsylvania (the "Board"), it must pass constitutional analysis and muster. The ABA's power over its voluntary membership is of an immensely different kind, quality, and force than that of the government over its constituents. The government cannot approach…

CONSTITUTIONAL LAW-FIRST AMENDMENT-RELIGION-ESTABLISHMENT CLAUSE-PRAYER AT A FOOTBALL GAME

July 7th, 2022 by Rieders Travis in Constitutional Law

Justice Gorsuch delivered the opinion of the Court.  Joseph Kennedy lost his job as a high school football coach because he knelt at midfield after games to offer a quiet prayer of thanks. Mr. Kennedy prayed during a period when school employees were free to speak with a friend, call for a reservation at a restaurant, check email, or attend to other personal matters. He offered his prayers quietly while his students were otherwise occupied. Still, the Bremerton School District disciplined him anyway. It did so because it thought anything less could lead a reasonable observer to conclude (mistakenly) that it endorsed Mr. Kennedy’s religious beliefs. That reasoning was misguided. Both the Free Exercise and Free Speech Clauses of the First Amendment protect expressions like Mr. Kennedy’s.  Nor does a proper understanding of the Amendment’s Establishment Clause require the government to single out private religious speech for special disfavor. The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike. Now before us, Mr. Kennedy renews his argument that the District’s conduct violated both the Free Exercise and Free Speech Clauses of the First Amendment.  These Clauses…

CONSTITUTIONAL LAW-FIRST AMENDMENT-SPEECH-GOVERNMENT EMPLOYEES-BLACK LIVES MATTER

July 5th, 2022 by Rieders Travis in Constitutional Law

Amalgamated Transit Union v. Port Auth. of Allegheny Cnty., 2022 U.S. App. LEXIS 17951 (3rd Cir. June 29, 2022) (Porter, C.J.)  Beginning in April 2020, the Port Authority of Allegheny County ("Port Authority") required its uniformed employees to wear face masks at work. Some employees wore masks bearing political or social-protest messages. Concerned that such masks would disrupt its workplace, Port Authority prohibited them in July 2020. When several employees wore masks expressing support for Black Lives Matter, Port Authority disciplined them under this policy. In September 2020, Port Authority imposed additional restrictions, confining employees to a narrow range of masks. Together with their union, Amalgamated Transit Union Local 85 ("Local 85"), the employees sued, alleging that Port Authority had violated their First Amendment rights. The District Court entered a preliminary injunction rescinding discipline imposed under the July policy and preventing Port Authority from enforcing its policy against "Black Lives Matter" masks. Port Authority appeals. The government may limit the speech of its employees more than it may limit the speech of the public, but those limits must still comport with the protections of the First Amendment. Port Authority bears the burden…

CIVIL RIGHTS-TITLE VII-RELIGION-REASONABLE ACCOMMODATION-MUSLIM HEAD COVERING

July 2nd, 2022 by Rieders Travis in Constitutional Law

By Cliff Rieders of Rieders, Travis, Humphrey, Waters & Dohrmann posted in Constitutional Law on Thursday, July 2, 2015. E.E.O.C. v. Abercrombie & Fitch Stores, 135 S.Ct. 2028 (2015).  Title VII of the Civil Rights Act of 1964 prohibits a prospective employer from refusing to hire an applicant in order to avoid accommodating a religious practice that it could accommodate without undue hardship.  The question presented is whether this prohibition applies only where an applicant has informed the employer of his need for an accommodation.  In this situation, the store did not hire the woman who wore a Muslim covering because it disagreed with their policy about no head coverings.  An employer is entitled to have a no-headwear policy as an ordinary matter.  But when an applicant requires an accommodation as an aspect of religious practice, it is no response that the subsequent failure to hire was due to an otherwise-neutral policy.  Title VII requires otherwise-neutral policies to give way to the need for an accommodation. Related Posts: CONSTITUTIONAL LAW-PENNSYLVANIA CONSTITUTION-ENVIRONMENTAL AMENDMENT, CONSTITUTIONAL LAW-FIFTH AMENDMENT-TAKINGS CLAUSE-POLICE SEIZURE OF LAWFULLY OWNED GUNS, NEGLIGENCE-MISREPRESENTATION-ECONOMIC LOSS DOCTRINE, CONSTITUTIONAL LAW-FOURTH AMENDMENT-SEARCH AND SEIZURE-GOVERNMENT REGULATION,…

CONSTITUTIONAL LAW-SECOND AMENDMENT-PUBLIC CARRY LICENSES-SPECIAL NEED

June 28th, 2022 by Rieders Travis in Constitutional Law

N.Y. State Rifle & Pistol Ass'n v. Bruen, 2022 U.S. LEXIS 3055 (S. Ct. June 23, 2022) (Thomas, J.)  In District of Columbia v. Heller, 554 U. S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008), and McDonald v. Chicago, 561 U. S. 742, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010), we recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense. In this case, petitioners and respondents agree that ordinary, law-abiding citizens have a similar right to carry handguns publicly for their self-defense. We too agree, and now hold, consistent with Heller and McDonald, that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.  The parties nevertheless dispute whether New York’s licensing regime respects the constitutional right to carry handguns publicly for self-defense. In 43 States, the government issues licenses to carry based on objective criteria. But in six States, including New York, the government further conditions issuance of a license to carry on a citizen’s showing of some additional special need.  Because the State of New York issues public-carry licenses only when an applicant demonstrates a special need…

CONSTITUTIONAL LAW-FIRST AMENDMENT-RELIGION-TUITION ASSISTANCE FOR RELIGIOUS SCHOOLS

June 28th, 2022 by Rieders Travis in Constitutional Law

Carson v. Makin, 2022 U.S. LEXIS 3013 (S. Ct. June 21, 2022) (Roberts, J.)  Maine has enacted a program of tuition assistance for parents who live in school districts that do not operate a secondary school of their own. Under the program, parents designate the secondary school they would like their child to attend—public or private—and the school district transmits payments to that school to help defray the costs of tuition. Most private schools are eligible to receive the payments, so long as they are “nonsectarian.” The question presented is whether this restriction violates the Free Exercise Clause of the First Amendment. The Free Exercise Clause of the First Amendment protects against “indirect coercion or penalties on the free exercise of religion, not just outright prohibitions.” Lyng v. Northwest Indian Cemetery Protective Assn., 485 U. S. 439, 450, 108 S. Ct. 1319, 99 L. Ed. 2d 534 (1988). In particular, we have repeatedly held that a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits. See Sherbert v. Verner, 374 U. S. 398, 404, 83 S. Ct. 1790, 10 L. Ed. 2d 965…

CONSTITUTIONAL LAW-PENNSYLVANIA CONSTITUTION-PREEMPTION-FIREARMS CONTROL/GUN CONTROL

June 6th, 2022 by Rieders Travis in Constitutional Law

Firearm Owners Against Crime v. City of Pittsburgh, 2022 Pa. Commw. LEXIS 67 (May 27, 2022) (McCullough, J.) The Pennsylvania Uniform Firearms Act, found at 18 Pa. C.S. 6120(a) prohibits a municipality, township, etc. from in any way regulating ownership, possession, transfer or control of guns or ammunition.  Here, the City of Philadelphia prohibited assault weapons and large capacity magazines.  The court, somewhat apologetically, said that the city code is preempted by state law which completely occupies the field of gun control in Pennsylvania.

CONSTITUTIONAL LAW-FIRST AMENDMENT-RELIGION-REASONABLE ACCOMMODATION-US POSTAL SERVICE

May 27th, 2022 by Rieders Travis in Constitutional Law

Groff v. Dejoy, 2022 U.S. App. LEXIS 14195 (3rd Cir. May 25, 2022) (Shwartz, C.J.)  Plaintiff Gerald Groff is a Sunday Sabbath observer whose religious beliefs dictate that Sunday is meant for worship and rest. As a result, Groff informed his employer, the United States Postal Service ("USPS"), that he was unable to work on Sundays. USPS offered to find employees to swap shifts with him, but on more than twenty Sundays, no co-worker would swap, and Groff did not work. Groff was disciplined and ultimately left USPS. Groff sued USPS for violating Title VII by failing to reasonably accommodate his religion. Because the shift swaps USPS offered to Groff did not eliminate the conflict between his religious practice and his work obligations, USPS did not provide Groff a reasonable accommodation. The accommodation Groff sought (exemption from Sunday work), however, would cause an undue hardship on USPS. An employer is not required "to accommodate at all costs." Ansonia, 479 U.S. at 70. Where an employer's good-faith efforts to accommodate have been unsuccessful, the inquiry turns to whether the employer demonstrated that "such an accommodation would work an undue hardship upon…