Constitutional Law

July 23rd, 2019 by Rieders Travis in Constitutional Law

CONSTITUTIONAL LAW-INDIAN RESERVATIONS McGirt v. Oklahoma, 2020 U.S. LEXIS 3554 (July 9, 2020) Gorsuch, J.  On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever. In exchange for ceding “all their land, East of the Mississippi river,” the U. S. government agreed by treaty that “[t]he Creek country west of the Mississippi shall be solemnly guarantied to the Creek Indians.” Treaty With the Creeks, Arts. I, XIV, Mar. 24, 1832, 7 Stat. 366, 368 (1832 Treaty). Both parties settled on boundary lines for a new and “permanent home to the whole Creek nation,” located in what is now Oklahoma. Treaty With the Creeks, preamble, Feb. 14, 1833, 7 Stat. 418 (1833 Treaty). The government further promised that “[no] State or Territory [shall] ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves.” 1832 Treaty, Art. XIV, 7 Stat. 368. Today we are asked whether the land these treaties promised remains an…

Supremacy Clause: Standing Gerrymandering

July 12th, 2018 by Rieders Travis in Constitutional Law

Gill v. Whitford, 585 U.S. ___ (2018); Benisek v. Lamone, 585 U.S. ___ (2018).   U.S. Supreme Court has found that gerrymandering case must be brought by those with standing.  That was the holding in Gill.  In Benisek, the court found a lack of grounds for an emergency injunction.  In Gill, the plaintiffs were supporters of the public policies espoused by the Democratic Party and of Democratic Party candidates.  The court kicked the can down the road in both cases but spoke specifically in Gill about the standing issue.  Some of the standing principles articulated is that the harm asserted by plaintiffs is best understood as arising from a burden on the plaintiff’s own votes.  In this gerrymandering context, that burden arises through a voter’s placement in a “cracked” or “packed” district.  The plaintiffs failed to meaningfully pursue their allegations of individual harm.  The plaintiffs did not seek to show requisite harm on the record.  It appears that not a single plaintiff sought to prove that he or she lived in a cracked or packed district.  Instead, they rested their theory on statewide theory to Wisconsin Democrats.  This is a…

Constitutional Law: Fourth Amendment Arrest Excessive Police Force

May 23rd, 2018 by Rieders Travis in Constitutional Law

Qualified Immunity, Excessive Police Force and Fourth Amendment Andrew Kisela v. Amy Hughes, 584 U.S. ___ (2018).  PER CURIAM. Petitioner Andrew Kisela, a police officer in Tucson, Arizona, shot respondent Amy Hughes. Kisela and two other officers had arrived on the scene after hearing a police radio report that a woman was engaging in erratic behavior with a knife. They had been there but a few minutes, perhaps just a minute. When Kisela fired, Hughes was holding a large kitchen knife, had taken steps toward another woman standing nearby Chadwick, and had refused to drop the knife after at least two commands to do so. The question is whether at the time of the shooting Kisela’s actions violated clearly established law. All three of the officers later said that at the time of the shooting they subjectively believed Hughes to be a threat to Chadwick.  Here, the Court need not, and does not, decide whether Kisela violated the Fourth Amendment when he used deadly force against Hughes. For even assuming a Fourth Amendment violation occurred—a proposition that is not at all evident—on these facts Kisela was at least entitled to…

Constitutional law – Pennsylvania Constitution, Article I, Section 5: The free and equal elections clause, congressional redistricting

February 9th, 2018 by Rieders Travis in Constitutional Law

League of Women Voters of Pa. v. Commonwealth, 2018 Pa. LEXIS 771 (February 7, 2018) Todd, J.  This case strikes down Pennsylvania’s Congressional Redistricting Act of 2011 as unconstitutional under the Pennsylvania Constitution.  The court held that while federal courts have been unable to settle on a workable standard by which to assess partisan gerrymandering claims, there is no barrier under the “great” Pennsylvania charter.  The 2011 Plan violates Article I, Section 5, Free and Equal Elections Clause of the Pennsylvania Constitution.  The court examined each one of the congressional districts in detail, as well as the electoral history.  The court held that the 2011 Plan clearly, plainly and palpably violates the Free and Equal Elections Clause of the Pennsylvania Constitution.  The historial motives of adoption of the Pennsylvania constitutional provision at issue was to prevent the dilution of the right of the people of the Commonwealth to select representatives to govern their affairs based on considerations of the region of the state in which they live, the religious and political beliefs to which they adhered. Consequently, for all of these reasons, and as expressly set forth in our Order…

CONSTITUTIONAL LAW-14TH AMENDMENT-DUE PROCESS-SUBSTANTIVE DUE PROCESS-STATE CREATED DANGER CLAIM-POLICE OFFICER TRAINING

January 4th, 2018 by Rieders Travis in Constitutional Law

Joan Kedra v. Schroeter, 2017 U.S. App. LEXIS 23982 (3rd Cir. November 28, 2017) Krause, C.J.  This case arises from the death of a state trooper who was shot and killed by his instructor during a routine firearms training.  The training officer treated the gun as though it were unloaded instead of loaded.  He pointed at a person instead of a safe target, and he bypassed the required visual and physical inspection before pulling the trigger, aimed at plaintiff’s decedent’s chest.  The district court threw out the case, stating that it did not fulfill the requirements of a state-created danger in violation of the 14th Amendment substantive due process rights.  The court therefore found qualified immunity.  In other words, there was no deliberate indifference because the objective theory of deliberate indifference was not clearly established at the time of the shooting.  However, because obviousness of risk is relevant to proving actual knowledge and the allegations of the complaint are more than sufficient to support a reasonable inference that the trainer had such knowledge, we conclude that the complaint adequately pleads a state created danger claim under a then clearly established…

Villani v. Seibert, 2017 Pa. LEXIS 939, Chief Justice Saylor decided April 26, 2017

May 2nd, 2017 by Rieders Travis in Constitutional Law

In this interlocutory direct appeal by permission, we consider whether a legislative enactment recognizing a cause of action for wrongful use of civil proceedings infringes upon this Court’s constitutionally prescribed power to regulate the practice of law, insofar as such wrongful-use actions may be advanced against attorneys.  Notably, Appellants had not specifically referenced the Dragonetti Act in their complaint.  As the proceedings have developed, however, it has become clear that Appellants are relying upon the enactment.  Whether charged with a violation of [Rule] 3.1 or a violation of the Dragonetti Act, an attorney would defend with the same evidence upon which the attorney his or her good faith belief that there was a basis in law and fact to bring or defend the underlying civil proceeding.  In either case, the finder of fact would be charged with determining whether the lawyer’s belief was objectively reasonable, i.e., whether the lawyer had acted in good faith by relying upon creditable facts and a non-frivolous legal argument for purposes of probable cause to pursue a claim.  In conclusion, in our considered judgment, Appellee has failed to establish that the Dragonetti Act clearly and…

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

July 2nd, 2015 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 - FOURTH AMENDMENT - SEARCH AND SEIZURE - HOTEL RECORD OF GUESTS, CONSTITUTIONAL LAW - FIFTH AMENDMENT - TAKINGS CLAUSE…

Civil Rights: Immunity Qualified Immunity Suicide Screening

July 2nd, 2015 by Rieders Travis in Constitutional Law

By Cliff Rieders of Rieders, Travis, Humphrey, Waters & Dohrmann posted in Constitutional Law on Thursday, July 2, 2015. Taylor v. Barkes, 135 S.Ct. 2042 (2015).  Christopher Barkes, a troubled man, was arrested for violating his probation.  He was taken to a correctional institution.  He had a medical evaluation to assess whether he was suicidal.  He did disclose certain risks.  He had a routine referral to mental health services.  While he was in a cell by himself, he hung himself with a sheet.  The court found qualified immunity applied.  This case came up from the Third Circuit.  No decision of the Supreme Court establishes a right to proper implementation of adequate suicide prevention protocols.  No decision of the court even discusses suitable screening or prevention protocols.  The Third Circuit found this right clearly established by two of its own decisions, both stemming from the same case.  Even if the institution suicide screening and prevention measures contain the shortcomings alleged, no precedent on the books at the time of the hanging in this case would have made it clear to prison officials that they were overseeing a system that violated the…

CIVIL RIGHTS-IMMUNITY-QUALIFIED IMMUNITY-ARREST-FOURTH AMENDMENT RIGHTS

June 23rd, 2015 by Rieders Travis in Constitutional Law

By Cliff Rieders of Rieders, Travis, Humphrey, Waters & Dohrmann posted in Constitutional Law on Tuesday, June 23, 2015. City and County of San Francisco v. Sheehan, 135 S.Ct. 1765 (2015).  Officers are entitled to qualified immunity because they did not violate any clearly established Fourth Amendment rights in arresting a woman who was suffering from a mental illness and became violent.  The officers had a justifiable reason to be concerned.  The Americans with Disabilities Act does not command a different result.  The court's decision was not to decide whether the ADA applies to arrests is reinforced by the party's failure to address the related question:  whether a public entity can be liable for damages under Title II for an arrest made by its police officers.  Only public entities are subject to Title II, and the parties agreed that such an entity can be held vicariously liable for money damages for the purposeful or deliberately indifferent conduct of its employees.  The court in this case would not decide whether that proposition is correct.  However the court did decide that there was qualified immunity.  Even if an officer acts contrary to…