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Constitutional Law

July 23rd, 2019 by Rieders Travis in Constitutional Law

CONSTITUTIONAL LAW-CONTRACTS CLAUSE-TEACHERS

Watters v. Board of School Directors of the City of Scranton, 2020 U.S. App. LEXIS 29993 (3rd Cir. September 21, 2020) Chagares, C.J.  Three Pennsylvania teachers who obtained tenure contracts under the state’s Public School Code of 1949 brought a claim under 42 U.S.C. § 1983 against the City of Scranton Board of School Directors and the City of Scranton School District (collectively, the “School District”), alleging that the School District deprived them of a right secured by the United States Constitution’s Contracts Clause when it applied a Pennsylvania law, Act No. 2017-55 (“Act 55”), to suspend them from employment. Act 55 amended the Public School Code to authorize the suspension of tenured teachers for economic reasons. According to the teachers, the Contracts Clause forbids their suspensions because Act 55 took effect after they entered into tenure contracts with the School District, and the change in the law allowing for their suspensions based on economic reasons amounted to a substantial impairment of their tenure contract rights. The teachers further allege that the School District’s stated justification for impairing their contracts, a budget shortage that presented serious economic difficulties, does not pass muster under the Contracts Clause because their suspensions were not a necessary or reasonable way to address the School District’s financial problems.

The District Court dismissed the teachers’ claim, reasoning that they failed to allege a plausible Contracts Clause violation because the School District did not substantially impair the teachers’ tenure contract rights. We agree with the District Court’s dismissal of the teachers’ claim, but we reach that conclusion based on different grounds. We hold that the teachers failed to state a § 1983 claim premised on the Contracts Clause because their complaint and its exhibits show that the School District’s suspension of the teachers was a necessary and reasonable measure to advance the School District’s significant and legitimate public purpose of combatting the budget shortage that it faced. We therefore will affirm.

CONSTITUTIONAL LAW-FOURTH AMENDMENT-EXCESSIVE FORCE-ASSAULT AND BATTERY CLAIMS

El v. City of Pittsburgh, No. 18-2856 (3rd Cir. September 16, 2020) Fisher, C.J.  On a summer day in 2013, brothers Will and Beyshaud El left a corner store in their neighborhood and encountered Pittsburgh Police Lieutenant Reyne Kacsuta. The men were unarmed and were not committing a crime. Nor did they flee or resist Lieutenant Kacsuta or the five other officers who quickly joined her. Nevertheless, the incident ended with Officer Frank Welling slamming Will against a building and taking him to the ground, and Officer Ryan Warnock deploying his taser on Beyshaud.

The brothers were convicted in state court of summary disorderly conduct and summary harassment. They then sued Lieutenant Kacsuta and Officers Welling and Warnock in federal court, asserting Fourth Amendment excessive force claims and state law assault and battery claims. The officers moved for summary judgment, which the District Court granted in part and denied in part. The officers appeal. We will reverse the denial of summary judgment as to Lieutenant Kacsuta and affirm the denial of summary judgment as to Officer Welling. Because we lack jurisdiction to consider whether the District Court erred in denying the motion as to Officer Warnock, we will dismiss the appeal in part.

 

The excessive force claim against Lieutenant Kacsuta is, specifically, a failure to intervene claim. It is predicated on the allegation that she did not stop Officers Warnock and Welling from using force on the El brothers. “[A] police officer has a duty to take reasonable steps to protect a victim from another officer’s use of excessive force,” but only “if there is a realistic and reasonable opportunity to intervene.” Smith v. Mensinger, 293 F.3d 641, 650-51 (3d Cir. 2002).

 

The Els argue that the “entire incident” lasted about twenty minutes, and therefore Lieutenant Kacsuta could have intervened. However, the question is not whether she had an opportunity to intervene in the “entire incident,” but in Officer Welling’s use of force, which lasted about five seconds. She did not, so the District Court erred in denying her motion for summary judgment based on qualified immunity.

 

The excessive force claim against Officer Welling is predicated on his grabbing Will by the wrist and neck, slamming him back into the wall of the vacant storefront, and taking him to the ground. “To prevail on a Fourth Amendment excessive-force claim, a plaintiff must show that a seizure occurred and that it was unreasonable under the circumstances.” Lamont, 637 F.3d at 182-83. “A seizure occurs ‘[w]henever an officer restrains the freedom of a person to walk away.’” Rivas, 365 F.3d at 198 (alteration in original) (quoting Tennessee v. Garner, 471 U.S. 1, 7 (1985)). There is no dispute that there was a seizure here; the question is whether it was reasonable.

Nevertheless, we will affirm because the right was clearly established by applicable case law and a reasonable jury could conclude it was violated.

Even if an individual is engaged in disorderly conduct, there still could be a level of responsive force that is reasonable and a level that is “excessive and unreasonable.” See Nelson, 109 F.3d at 145. Viewing the facts in the light most favorable to Will, a jury could conclude that Officer Welling’s use of force was objectively unreasonable, even taking Will’s disorderly conduct into account.

As discussed above, the factors all tend to show that Officer Welling’s force was excessive: there was no serious crime, no immediate safety threat, and no resistance or flight by the Els; they were not armed and were significantly outnumbered. See Graham, 490 U.S. at 396; Sharrar, 128 F.3d at 822. While we would not hold that these factors, by themselves, clearly established Will’s right to be free of the kind of force Officer Welling used, they support the consensus of cases that show clear establishment of the right.

We will reverse the denial of summary judgment on the excessive force claim against Officer Kacsuta, affirm the denial of summary judgment on the excessive force claim against Officer Welling, dismiss the portion of the appeal related to the denial of summary judgment on the state law claim as to Officer Warnock, and remand for further proceedings.

CONSTITUTIONAL LAW-FIRST AMENDMENT-SPEECH-PORNOGRAPHY-INDENTIFICATION OF AGE AND IDENTITY

Free Speech Coalition v. Attorney General, 2020 U.S. App. LEXIS 27776 (3rd Cir. September 1, 2020) Chagares, C.J.  Producers of pornography oftentimes depict young-looking performers who appear as if they could be children but might, in fact, be adults. In that circumstance, producers and law enforcement alike cannot know, absent proof of performers’ ages, whether these sexually explicit scenes involve children and violate laws prohibiting the production of child pornography. To combat that problem and protect children from sexual exploitation, Congress enacted 18 U.S.C. §§ 2257 and 2257A (collectively, “the Statutes”). The Statutes require producers of pornography to verify the age and identity of each person portrayed, to keep records of the age verification, and to label each depiction with the location where law enforcement may obtain those records. In this cross-appeal, we consider First Amendment challenges brought by twelve plaintiffs, including two associations, involved in the production of pornography covered by the Statutes. The plaintiffs claim that the age verification, recordkeeping, and labeling requirements, the implementing regulations for those requirements, and the Statutes’ criminal penalties for noncompliance unnecessarily restrict their freedom of speech. They therefore assert that those provisions violate the First Amendment as applied to them and are facially invalid under the First Amendment overbreadth doctrine. This lawsuit, filed in 2009, has been litigated over the course of a decade, and we laud the District Court for its skillful handling of this complex case throughout. The First Amendment challenges have resulted in three prior opinions from this Court. See Free Speech Coal., Inc. v. Att’y Gen. (“FSC I”), 677 F.3d 519 (3d Cir. 2012); Free Speech Coal., Inc. v. Att’y Gen. (“FSC II”), 787 F.3d 142 (3d Cir. 2015); Free Speech Coal., Inc. v. Att’y Gen. (“FSC III”), 825 F.3d 149 (3d Cir. 2016). In the latest of those decisions, we remanded for the District Court to evaluate the plaintiffs’ First Amendment claims under strict scrutiny. The District Court, on the parties’ cross-motions for entry of judgment, then ruled that (1) the two association plaintiffs lack standing to bring as-applied First Amendment challenges; (2) the remaining ten plaintiffs’ First Amendment as-applied challenges are meritorious, but only with respect to certain categories of claimants, and the Statutes’ criminal penalties for the unconstitutional provisions cannot be enforced; (3) the plaintiffs failed to prove their facial overbreadth claim; and (4) as a remedy for the successful as-applied claims, the plaintiffs are entitled to a so-called nationwide injunction. Applying strict scrutiny, we agree with the District Court in part. First, the District Court correctly held that the two association plaintiffs lack standing to bring as-applied First Amendment claims on behalf of their members. Second, we will affirm in part and reverse in part the District Court’s ruling on the remaining ten plaintiffs’ as-applied claims. We conclude that the age verification, recordkeeping, and labeling requirements all violate the First Amendment as applied to those plaintiffs. The Government conceded that the Statutes’ requirements need not apply when sexually explicit depictions show performers who are at least thirty years old because at that age, an adult performer could not reasonably appear to be a child. So for these plaintiffs — who must comply even for their performers who are at least thirty years old — the requirements are not the least restrictive way to protect children. As a result, the Statutes’ criminal penalties for noncompliance with those requirements cannot be enforced against the successful as-applied plaintiffs. Third, we hold, as the District Court did, that the age verification, recordkeeping, and labeling requirements are not facially invalid under the First Amendment overbreadth doctrine because the plaintiffs failed to prove that those provisions improperly restrict a substantial amount of protected speech relative to the Statutes’ plainly legitimate sweep. Fourth, the District Court erred in entering what the Government labels a nationwide injunction because that remedy was broader than necessary to provide full relief to those plaintiffs who prevailed on their as-applied claims. Given these holdings, we will affirm in part, reverse in part, vacate in part, and remand for the District Court to afford relief consistent with this opinion and limited to those plaintiffs who brought meritorious as-applied claims.

CONSTITUTIONAL LAW-FOURTH AMENDMENT-BIVENS

Mack v. Yost, 2020 U.S. App. LEXIS 24488 (3rd Cir. August 4, 2020) Rendell, C.J.  Although Congress has never enacted a statute permitting a damages remedy for constitutional claims brought against federal officials, the Supreme Court first recognized an implied damages action for such claims under the Fourth Amendment in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The Supreme Court has since recognized an implied damages remedy in only two other instances. Most recently, in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the Supreme Court cautioned against creating additional implied damages remedies and explicitly declared Bivens expansion a “disfavored judicial activity.” Id. at 1857 (internal quotations omitted). Here, Charles Mack, a former inmate, seeks to bring a First Amendment retaliation claim against federal prison officials, alleging that he was terminated from his prison job for complaining that correctional officers were harassing him at work because of his religion. In light of Abbasi and our recent precedents, we decline to expand Bivens to create a damages remedy for Mack’s First Amendment retaliation claim. For the following reasons, we will reverse the District Court’s denial of the Government’s motion for summary judgment as to this claim. Based on the above special factors inquiry, we find that Bivens expansion would be an inappropriate exercise of judicial power in this new context. There may be future cases where we determine that, on balance, judicial intervention is needed to fulfill our obligation to faithfully uphold the Constitution. But in this case, we will exercise restraint and allow Congress to decide whether to redress the harm present in these types of cases. Accordingly, we decline to extend a Bivens remedy for First Amendment retaliation claims brought in the prison workplace assignment context.

CONSTITUTIONAL LAW-FOURTH AMENDMENT-PROBABLE CAUSE-FALSE ARREST

Williams v. City of York, 2020 U.S. App. LEXIS 23318 (3rd Cir. July 24, 2020) Hardiman, C.J.  District Judge was Sylvia Rambo and she was reversed by the Third Circuit.  The court reiterated two supervisory rules in considering qualified immunity for false arrest and excessive force.  First, a case will be remanded involving multiple defendants so district court could analyze separately and state findings with respect to the specific conduct of each defendant when there are several.  Secondly, the Third Circuit announced the rule requiring district courts to specify those material facts that are and are not subject to genuine dispute and explain their materiality.  Where the trial court’s determination that a fact is subject to reasonable dispute is blatantly and demonstrably false, a court of appeals may say so.  To resolve a claim of qualified immunity, there is a two-prong inquiry: (1) whether the plaintiff sufficiently alleged the violation of constitutional right and (2) whether the right was clearly established at the time of the official’s conduct.  Qualified immunity protects all but the plainly incompetent or those who knowingly violate the law.  The test of reasonableness under the Fourth Amendment is whether, under the totality of the circumstances, the officer’s actions are objectively reasonable.  The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split second judgments in circumstances that are tense, uncertain and rapidly evolving about the amount of force that is necessary in a particular situation.  Here, the plaintiff claimed that she was thrown to the ground, officers failed to loosen her handcuffs, and that a knee was put to her back.  The court found that the district court’s determination was blatantly and demonstrably false in letting this matter go to trial.  The court examined the plaintiff’s deposition and it precludes the possibility that the officers twisted her arm or threw her against a wall.  No reasonable juror could find the officers failed to loosen the handcuffs or twisted her arm or threw her against the wall and threatened to break her arm.  The district court’s contrary determination is unfounded.  The police officers, found the court, are entitled to qualified immunity on the claim for false arrest.

CONSTITUTIONAL LAW-PENNSYLVANIA CONSTITUTION-SEPARATION OF POWERS-CIVIVL RIGHTS-PHRA

Renner v. Court of Common Pleas, 2020 Pa. LEXIS 3842 (July 21, 2020) Todd, J.  In this appeal by allowance, we consider whether application of the Pennsylvania Human Relations Act (“PHRA”) to the judicial branch of our tripartite form of government violates separation of powers principles.  We conclude that application of the PHRA to the judiciary would violate such principles, and, thus, affirm the order of the Commonwealth Court.  As the Pennsylvania Constitution vests in the judiciary the exclusive power over the administration of the courts, rulemaking, and the supervision of its personnel, it is the Court, and only the Court, that provides protection for employees subject to discrimination, independent of the executive and legislative branches, through its own rules, policies, and procedures. Indeed, the Court has done so through the promulgation of its robust Code of Conduct. Contained therein is a requirement that “all hiring, employment, and supervisory decisions [be made] in compliance with the Unified Judicial System of Pennsylvania Policy on Non-Discrimination and Equal Employment Opportunity, the Rules of Judicial Administration, and all applicable state and federal laws.” Code of Conduct, § IV(D). Additionally, the Code of Conduct contains a prohibition against “any form of discrimination, harassment, or retaliation against any person as prohibited by law or court policy.” Id. § VII(B)(vi). Moreover, pursuant to the Unified Judicial System’s Policy on Non-discrimination and Equal Employment Opportunity, discrimination and harassment due to “race, color, sex, sexual orientation, gender identity or expression, national origin, age, disability or religion are prohibited.” Policy on Non-discrimination and Equal Employment Opportunity, under heading “Prohibition Against Discrimination and Harassment”. Indeed, these policies are more expansive than the PHRA by providing protection for sexual orientation and gender identity or expression. Finally, there is a meaningful avenue of reporting and processing claims of discrimination or harassment under the Code of Conduct with respect to county-level court employees, with the president judge of each judicial district responsible for disseminating and enforcing the Code of Conduct. Code of Conduct, § X.  For the above reasons, we hold that application of the PHRA to the judiciary would violate separation of powers principles, and, thus, affirm the order of the Commonwealth Court.

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 Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.

The federal government promised the Creek a reservation in perpetuity. Over time, Congress has diminished that reservation. It has sometimes restricted and other times expanded the Tribe’s authority. But Congress has never withdrawn the promised reservation. As a result, many of the arguments before us today follow a sadly familiar pattern. Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye. We reject that thinking. If Congress wishes to withdraw its promises, it must say so. Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right. The judgment of the Court of Criminal Appeals of Oklahoma is Reversed.

CONSTITUTIONAL LAW-ELECTORAL COLLEGE-PUNISHMENT FOR ELECTOR BREAKING PLEDGE

Chiafalo v. Washington, 2020 U.S. LEXIS 3543 (July 6, 2020) Kagan, J. Every four years, millions of Americans cast a ballot for a presidential candidate. Their votes, though, actually go toward selecting members of the Electoral College, whom each State appoints based on the popular returns. Those few “electors” then choose the President. The States have devised mechanisms to ensure that the electors they appoint vote for the presidential candidate their citizens have preferred. With two partial exceptions, every State appoints a slate of electors selected by the political party whose candidate has won the State’s popular vote. Most States also compel electors to pledge in advance to support the nominee of that party. This Court upheld such a pledge requirement decades ago, rejecting the argument that the Constitution “demands absolute freedom for the elector to vote his own choice.” Ray v. Blair, 343 U. S. 214, 228 (1952). Today, we consider whether a State may also penalize an elector for breaking his pledge and voting for someone other than the presidential candidate who won his State’s popular vote. We hold that a State may do so.

The Electors’ constitutional claim has neither text nor history on its side. Article II and the Twelfth Amendment give States broad power over electors, and give electors themselves no rights. Early in our history, States decided to tie electors to the presidential choices of others, whether legislatures or citizens. Except that legislatures no longer play a role, that practice has continued for more than 200 years. Among the devices States have long used to achieve their object are pledge laws, designed to impress on electors their role as agents of others. A State follows in the same tradition if, like Washington, it chooses to sanction an elector for breaching his promise. Then too, the State instructs its electors that they have no ground for reversing the vote of millions of its citizens. That direction accords with the Constitution—as well as with the trust of a Nation that here, We the People rule. The judgment of the Supreme Court of Washington is Affirmed.

CONSTITUTIONAL LAW-FIRST AMENDMENT-RELIGION-PRIVATE SCHOOL RELIGIOUS FUNDING

Espinoza v. Montana Department of Revenue, 2020 U.S. LEXIS 3518 (June 30, 2020) Roberts, C.J.  The Montana Legislature established a program to provide tuition assistance to parents who send their children to private schools. The program grants a tax credit to anyone who donates to certain organizations that in turn award scholarships to selected students attending such schools. When petitioners sought to use the scholarships at a religious school, the Montana Supreme Court struck down the program. The Court relied on the “no-aid” provision of the State Constitution, which prohibits any aid to a school controlled by a “church, sect, or denomination.” The question presented is whether the Free Exercise Clause of the United States Constitution barred that application of the no-aid provision.

The question for this Court is whether the Free Exercise Clause precluded the Montana Supreme Court from applying Montana’s no-aid provision to bar religious schools from the scholarship program. For purposes of answering that question, we accept the Montana Supreme Court’s interpretation of state law—including its determination that the scholarship program provided impermissible “aid” within the meaning of the Montana Constitution—and we assess whether excluding religious schools and affected families from that program was consistent with the Federal Constitution.

The prohibition before us today burdens not only religious schools but also the families whose children attend or hope to attend them. Drawing on “enduring American tradition,” we have long recognized the rights of parents to direct “the religious upbringing” of their children. Wisconsin v. Yoder, 406 U. S. 205, 213–214, 232 (1972). Many parents exercise that right by sending their children to religious schools, a choice protected by the Constitution. See Pierce v. Society of Sisters, 268 U. S. 510, 534–535 (1925). But the no-aid provision penalizes that decision by cutting families off from otherwise available benefits if they choose a religious private school rather than a secular one, and for no other reason.

A state need not subsidize private education.  But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.

The judgment of the Montana Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

CONSTITUTIONAL LAW-FIRST AMENDMENT-SPEECH-SCHOOLS-VULGAR LANGUAGE ON SNAPCHAT

B.L. v. Mahanoy Area School District, 2020 U.S. App. LEXIS 20365 (June 30, 2020) Krause, C.J., Ambro concurs in the judgment.  Appellee B.L. failed to make her high school’s varsity cheerleading team and, over a weekend and away from school, posted a picture of herself with the caption “fuck cheer” to Snapchat. J.A. 484. She was suspended from the junior varsity team for a year and sued her school in federal court. The District Court granted summary judgment in B.L.’s favor, ruling that the school had violated her First Amendment rights. We agree and therefore will affirm.

In Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the Court reiterated that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Id. at 506. Expanding on Barnette, Tinker also held that student speech rights are “not confined to the supervised and ordained discussion” of the classroom; instead, they extend to all aspects of “the process of attending school,” whether “in the cafeteria, or on the playing field, or on the campus during authorized hours.” Id. at 512–13. Without “a specific showing of constitutionally valid reasons to regulate their speech,” then, “students are entitled to freedom of expression,” id. at 511, and cannot be punished for “expressions of feelings with which [school officials] do not wish to contend,” id. (quoting Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966)).

The Court’s case law therefore reveals that a student’s First Amendment rights are subject to narrow limitations when speaking in the “school context” but “are coextensive with [those] of an adult” outside that context. J.S., 650 F.3d at 932. 

To define B.L.’s speech rights with precision, therefore, we must ask whether her snap was “on-” or “off-campus” speech—terms we use with caution, for the schoolyard’s physical boundaries are not necessarily coextensive with the “school context,” J.S., 650 F.3d at 932. After reviewing the line separating on- from off-campus

Applying these principles to B.L.’s case, we easily conclude that her snap falls outside the school context. This is not a case in which the relevant speech took place in a “schoolsponsored” forum, Fraser, 478 U.S. at 677, or in a context that “bear[s] the imprimatur of the school,” Kuhlmeier, 484 U.S. at 271. Nor is this a case in which the school owns or operates an online platform. Cf. Oral Arg. Tr. 25 (discussing a “school listserv”). Instead, B.L. created the snap away from campus, over the weekend, and without school resources, and she shared it on a social media platform unaffiliated with the school. And while the snap mentioned the school and reached 16 MAHS students and officials, J.S. and Layshock hold that those few points of contact are not enough. B.L.’s snap, therefore, took place “off campus.”

No one challenges what happened to B.L. As a result, we can no more hold that B.L. abdicated her First Amendment right to speak as a cheerleader than we could return to bygone days in which a police officer was thought to have a “right to talk politics . . . [but not] to be a policeman.” See O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 716–17 (1996) (quoting McAuliffe v. Mayor, 29 N.E. 517, 517 (Mass. 1892)). Instead, we conclude, Fraser did not authorize the School District’s punishment of B.L. for her off-campus speech.

We hold today that Tinker does not apply to off-campus speech—that is, speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school’s imprimatur. In so holding, we build on a solid foundation, for in his concurrence in J.S., now Chief Judge Smith, joined by four colleagues, embraced this rule, explaining “that the First Amendment protects students engaging in off-campus speech to the same extent it protects speech by citizens in the community at large.” 650 F.3d at 936. That rule is true to the spirit of Tinker, respects students’ rights, and provides much-needed clarity to students and officials alike. 

From the outset, Tinker has been a narrow accommodation: Student speech within the school context that would “materially and substantially interfere[] with the requirements of appropriate discipline,” Tinker, 393 U.S. at 505 (citation omitted), is stripped of the constitutional shield it enjoys “outside [that] context,” Morse, 551 U.S. at 405. Tinker’s focus on disruption makes sense when a student stands in the school context, amid the “captive audience” of his peers. Fraser, 478 U.S. at 684. But it makes little sense where the student stands outside that context, given that any effect on the school environment will depend on others’ choices and reactions.

The School District argues that “profane speech is not protected when aimed at minors.” Appellant’s Reply 2 (capitalization altered). Again, the District misses the mark. Its argument relies on FCC v. Pacifica Foundation, 438 U.S. 726 (1978), a case involving the sui generis context of radio broadcasting, which is “uniquely accessible to children,” id. at 749. But nowhere did Pacifica suggest that indecent speech falls outside the First Amendment. Moreover, B.L.’s snap was no more indecent, or targeted at an “intended audience [of] minors,” Appellant’s Reply 3, than the MySpace profiles we held were entitled to First Amendment protection in J.S. and Layshock. For these reasons, we hold that B.L.’s snap was not subject to regulation under Tinker or Fraser and instead enjoyed the full scope of First Amendment protections.

The School District next argues that by agreeing to certain school and team rules, B.L. waived her First Amendment right to post the “fuck cheer” snap. We disagree.

For the foregoing reasons, we will affirm the judgment of the District Court.

AMBRO, Circuit Judge, concurring in the judgment:

I concur in the judgment affirming the District Court’s grant of summary judgment to B.L. on the narrow ground that our holdings in Layshock ex rel. Layshock v. Hermitage School District, 650 F.3d 205 (3d Cir. 2011) (en banc), and J.S. ex rel. Snyder v. Blue Mountain School District, 650 F.3d 915 (3d Cir. 2011) (en banc), mandate that outcome. I dissent from the majority’s holding that, on the facts before us, the holding in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)—that schools may regulate student speech only if it “substantially disrupt[s] the work and discipline of the school,” id. at 513—does not apply to “off-campus” speech. 

I dissent because it is a fundamental principle of judicial restraint that courts should “neither anticipate a question of constitutional law in advance of the necessity of deciding it nor formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450 (2008) (citing Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 346–47 (1936)) (quotation marks omitted). Cf. Golden v. Zwickler, 394 U.S. 103, 108 (1969) (“For adjudication of constitutional issues[,] concrete legal issues[] presented in actual cases, not abstractions[,] are requisite.”) (citation and quotation marks omitted).

CONSTITUIONAL LAW-SUBPOENA POWER-STATE COURT

Trump v. Vance, 2020 U.S. LEXIS 3552 (July 9, 2020) Roberts, C.J.  This case involves—so far as we and the parties can tell—the first state criminal subpoena directed to a President. The President contends that the subpoena is unenforceable. We granted certiorari to decide whether Article II and the Supremacy Clause categorically preclude, or require a heightened standard for, the issuance of a state criminal subpoena to a sitting President.

Although the Constitution does not entitle the Executive to absolute immunity or a heightened standard, he is not “relegate[d]” only to the challenges available to private citizens. Post, at 17 (opinion of ALITO, J.). A President can raise subpoena-specific constitutional challenges, in either a state or federal forum. As previously noted, he can challenge the subpoena as an attempt to influence the performance of his official duties, in violation of the Supremacy Clause. See supra, at 17. This avenue protects against local political machinations “interposed as an obstacle to the effective operation of a federal constitutional power.” United States v. Belmont, 301 U. S. 324, 332 (1937).

The arguments presented here and in the Court of Appeals were limited to absolute immunity and heightened need. The Court of Appeals, however, has directed that the case be returned to the District Court, where the President may raise further arguments as appropriate. 941 F. 3d, at 646, n. 19. We affirm the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

CONSTITUTIONAL LAW-SUBPOENA

Trump v. Mazars United States, 2020 U.S. LEXIS 3553 (July 9, 2020) Roberts, C.J.  Over the course of five days in April 2019, three committees of the U. S. House of Representatives issued four subpoenas seeking information about the finances of President Donald J. Trump, his children, and affiliated businesses. We have held that the House has authority under the Constitution to issue subpoenas to assist it in carrying out its legislative responsibilities. The House asserts that the financial information sought here—encompassing a decade’s worth of transactions by the President and his family—will help guide legislative reform in areas ranging from money laundering and terrorism to foreign involvement in U. S. elections. The President contends that the House lacked a valid legislative aim and instead sought these records to harass him, expose personal matters, and conduct law enforcement activities beyond its authority. The question presented is whether the subpoenas exceed the authority of the House under the Constitution. 

We have never addressed a congressional subpoena for the President’s information. Two hundred years ago, it was established that Presidents may be subpoenaed during a federal criminal proceeding, United States v. Burr, 25 F. Cas. 30 (No. 14,692d) (CC Va. 1807) (Marshall, Cir. J.), and earlier today we extended that ruling to state criminal proceedings, Trump v. Vance, ante, p. ___. Nearly fifty years ago, we held that a federal prosecutor could obtain information from a President despite assertions of executive privilege, United States v. Nixon, 418 U. S. 683 (1974), and more recently we ruled that a private litigant could subject a President to a damages suit and appropriate discovery obligations in federal court, Clinton v. Jones, 520 U. S. 681 (1997). 

This case is different. Here the President’s information is sought not by prosecutors or private parties in connection with a particular judicial proceeding, but by committees of Congress that have set forth broad legislative objectives.

Congress has no enumerated constitutional power to conduct investigations or issue subpoenas, but we have held that each House has power “to secure needed information” in order to legislate. McGrain v. Daugherty, 273 U. S. 135, 161 (1927). This “power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function.” Id., at 174. Without information, Congress would be shooting in the dark, unable to legislate “wisely or effectively.” Id., at 175. The congressional power to obtain information is “broad” and “indispensable.” Watkins v. United States, 354 U. S. 178, 187, 215 (1957). It encompasses inquiries into the administration of existing laws, studies of proposed laws, and “surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them.” Id., at 187. 

Because this power is “justified solely as an adjunct to the legislative process,” it is subject to several limitations. Id., at 197. Most importantly, a congressional subpoena is valid only if it is “related to, and in furtherance of, a legitimate task of the Congress.” Id., at 187. The subpoena must serve a “valid legislative purpose,” Quinn v. United States, 349 U. S. 155, 161 (1955); it must “concern[] a subject on which legislation ‘could be had,’ ” Eastland v. United States Servicemen’s Fund, 421 U. S. 491, 506 (1975) (quoting McGrain, 273 U. S., at 177).

A balanced approach is necessary, one that takes a “considerable impression” from “the practice of the government,” McCulloch v. Maryland, 4 Wheat. 316, 401 (1819); see Noel Canning, 573 U. S., at 524–526, and “resist[s]” the “pressure inherent within each of the separate Branches to exceed the outer limits of its power,” INS v. Chadha, 462 U. S. 919, 951 (1983). We therefore conclude that, in assessing whether a subpoena directed at the President’s personal information is “related to, and in furtherance of, a legitimate task of the Congress,” Watkins, 354 U. S., at 187, courts must perform a careful analysis that takes adequate account of the separation of powers principles at stake, including both the significant legislative interests of Congress and the “unique position” of the President, Clinton, 520 U. S., at 698 (internal quotation marks omitted). Several special considerations inform this analysis. 

First, courts should carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers.  Second, to narrow the scope of possible conflict between the branches, courts should insist on a subpoena no broader than reasonably necessary to support Congress’s legislative objective. Third, courts should be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose.  Fourth, courts should be careful to assess the burdens imposed on the President by a subpoena.  

Other considerations may be pertinent as well; one case every two centuries does not afford enough experience for an exhaustive list. 

When Congress seeks information “needed for intelligent legislative action,” it “unquestionably” remains “the duty of all citizens to cooperate.” Watkins, 354 U. S., at 187 (emphasis added). Congressional subpoenas for information from the President, however, implicate special concerns regarding the separation of powers. The courts below did not take adequate account of those concerns. The judgments of the Courts of Appeals for the D. C. Circuit and the Second Circuit are vacated, and the cases are remanded for further proceedings consistent with this opinion.

CONSTITUTIONAL LAW – ELECTORAL COLLEGE – PUNISHMENT FOR ELECTOR BREAKING PLEDGE

Chiafalo v. Washington, 2020 U.S. LEXIS 3543 (July 6, 2020) Kagan, J. Every four years, millions of Americans cast a ballot for a presidential candidate. Their votes, though, actually go toward selecting members of the Electoral College, whom each State appoints based on the popular returns. Those few “electors” then choose the President. The States have devised mechanisms to ensure that the electors they appoint vote for the presidential candidate their citizens have preferred. With two partial exceptions, every State appoints a slate of electors selected by the political party whose candidate has won the State’s popular vote. Most States also compel electors to pledge in advance to support the nominee of that party. This Court upheld such a pledge requirement decades ago, rejecting the argument that the Constitution “demands absolute freedom for the elector to vote his own choice.” Ray v. Blair, 343 U. S. 214, 228 (1952). Today, we consider whether a State may also penalize an elector for breaking his pledge and voting for someone other than the presidential candidate who won his State’s popular vote. We hold that a State may do so.

The Electors’ constitutional claim has neither text nor history on its side. Article II and the Twelfth Amendment give States broad power over electors, and give electors themselves no rights. Early in our history, States decided to tie electors to the presidential choices of others, whether legislatures or citizens. Except that legislatures no longer play a role, that practice has continued for more than 200 years. Among the devices States have long used to achieve their object are pledge laws, designed to impress on electors their role as agents of others. A State follows in the same tradition if, like Washington, it chooses to sanction an elector for breaching his promise. Then too, the State instructs its electors that they have no ground for reversing the vote of millions of its citizens. That direction accords with the Constitution—as well as with the trust of a Nation that here, We the People rule. The judgment of the Supreme Court of Washington is Affirmed.

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 Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.

The federal government promised the Creek a reservation in perpetuity. Over time, Congress has diminished that reservation. It has sometimes restricted and other times expanded the Tribe’s authority. But Congress has never withdrawn the promised reservation. As a result, many of the arguments before us today follow a sadly familiar pattern. Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye. We reject that thinking. If Congress wishes to withdraw its promises, it must say so. Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right. The judgment of the Court of Criminal Appeals of Oklahoma is Reversed.

CONSTITUTIONAL LAW-FIRST AMENDMENT-SPEECH-ANTI-PROSTITUTION ACT

Agency for International Development v. Alliance for Open Society International, Inc., 2020 U.S. LEXIS 3514 (June 29, 2020) Kavanaugh, J.  

In 2003, Congress passed and President George W. Bush signed the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act, known as the Leadership Act117 Stat. 711, as amended, 22 U. S. C. §7601 et seq. Aiming to enhance America’s response to the ravages of the global HIV/AIDS crisis, the Leadership Act launched “the largest international public health program of its kind ever created.” §7601(29). The Act has helped save an estimated 17 million lives, primarily in Africa, and is widely viewed as the most successful American foreign aid program since the Marshall Plan.

Plaintiffs are American nongovernmental organizations that receive Leadership Act funds to fight HIV/AIDS abroad. Plaintiffs have long maintained that they do not want to express their agreement with the American commitment to eradicating prostitution. Plaintiffs consider a public stance of neutrality toward prostitution more helpful to their sensitive work in some parts of the world and also to their full participation in the global efforts to prevent HIV/AIDS.

After enactment of the Leadership Act, plaintiffs challenged the Policy Requirement, alleging that it violated the First Amendment. In 2013, this Court agreed, concluding that the Policy Requirement ran afoul of the free speech principle that the Government “may not deny a benefit to a person on a basis that infringes his constitutionally protected . . . freedom of speech.” Agency for Int’l Development v. Alliance for Open Society Int’l, Inc., 570 U. S. 205, 214, 133 S. Ct. 2321, 186 L. Ed. 2d 398 (2013) (internal quotation marks omitted). Therefore, the Policy Requirement no longer applies to American organizations that receive Leadership Act funds, meaning that American organizations can obtain Leadership Act funds even if they do not have a policy explicitly opposing prostitution and sex trafficking.

The Court granted certiorari and reversed the judgment of the Second Circuit.  Plaintiff’s position runs headlong into two bedrock principles of American law.  It is long settled that foreign citizens outside U.S. territory do not possess rights under the U.S. Constitution.  Foreign citizens in the United States may enjoy certain constitutional rights such as due process.  Plaintiff’s foreign affiliates were incorporated in other countries in a largely separate from plaintiff American organizations.  Plaintiffs do not ask this court to pierce the corporate veil nor do they invoke any other relevant exception to the fundamental corporate law principle that the foreign organizations remain distinct from the American organizations.

As foreign organizations operating abroad, plaintiff’s foreign affiliates possess no rights under the First Amendment.  Plaintiff’s foreign affiliates are foreign organizations, and foreign organizations operating abroad have no First Amendment rights.

CONSTITUTIONAL LAW-SEPARATION OF POWERS-CONSUMER FINANCIAL PROTECTION BUREAU

Seila Law LLC v. Consumer Financial Protection Bureau, 2020 U.S. LEXIS 3515 (June 29, 2020) Roberts, Kagan, JJ.  Chief Justice Roberts delivered the opinion of the Court with respect to Parts I, II, and III.

In the wake of the 2008 financial crisis, Congress established the Consumer Financial Protection Bureau (CFPB), an independent regulatory agency tasked with ensuring that consumer debt products are safe and transparent. In organizing the CFPB, Congress deviated from the structure of nearly every other independent administrative agency in our history. Instead of placing the agency under the leadership of a board with multiple members, Congress provided that the CFPB would be led by a single Director, who serves for a longer term than the President and cannot be removed by the President except for inefficiency, neglect, or malfeasance. The CFPB Director has no boss, peers, or voters to report to. Yet the Director wields vast rulemaking, enforcement, and adjudicatory authority over a significant portion of the U. S. economy. The question before us is whether this arrangement violates the Constitution’s separation of powers.

Under our Constitution, the “executive Power”—all of it—is “vested in a President,” who must “take Care that the Laws be faithfully executed.” Art. II, §1, cl. 1; id.§3. Because no single person could fulfill that responsibility alone, the Framers expected that the President would rely on subordinate officers for assistance. Ten years ago, in Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477, 130 S. Ct. 3138, 177 L. Ed. 2d 706 (2010), we reiterated that, “as a general matter,” the Constitution gives the President “the authority to remove those who assist him in carrying out his duties,” id., at 513-514, 130 S. Ct. 3138, 177 L. Ed. 2d 706. “Without such power, the President could not be held fully accountable for discharging his own responsibilities; the buck would stop somewhere else.” Id., at 514, 130 S. Ct. 3138, 177 L. Ed. 2d 706.

The President’s power to remove—and thus supervise—those who wield executive power on his behalf follows from the text of Article II, was settled by the First Congress, and was confirmed in the landmark decision Myers v. United States, 272 U. S. 52, 47 S. Ct. 21, 71 L. Ed. 160 (1926). Our precedents have recognized only two exceptions to the President’s unrestricted removal power. In Humphrey’s Executor v. United States, 295 U. S. 602, 55 S. Ct. 869, 79 L. Ed. 1611 (1935), we held that Congress could create expert agencies led by a group of principal officers removable by the President only for good cause. And in United States v. Perkins, 116 U. S. 483, 6 S. Ct. 449, 29 L. Ed. 700, 21 Ct. Cl. 499 (1886), and Morrison v. Olson, 487 U. S. 654, 108 S. Ct. 2597, 101 L. Ed. 2d 569 (1988), we held that Congress could provide tenure protections to certain inferior officers with narrowly defined duties.

We are now asked to extend these precedents to a new configuration: an independent agency that wields significant executive power and is run by a single individual who cannot be removed by the President unless certain statutory criteria are met. We decline to take that step. While we need not and do not revisit our prior decisions allowing certain limitations on the President’s removal power, there are compelling reasons not to extend those precedents to the novel context of an independent agency led by a single Director. Such an agency lacks a foundation in historical practice and clashes with constitutional structure by concentrating power in a unilateral actor insulated from Presidential control.

We therefore hold that the structure of the CFPB violates the separation of powers. We go on to hold that the CFPB Director’s removal protection is severable from the other statutory provisions bearing on the CFPB’s authority. The agency may therefore continue to operate, but its Director, in light of our decision, must be removable by the President at will.

CONSTITUTIONAL LAW-PENNSYLVANIA CONSTITUTION-SECTION 12-ARTICLE I-POWER TO SUSPEND LAWS

Wolf v. Scarnati, 2020 Pa. LEXIS 3603 (July 1, 2020) Wecht, J.  March 6, 2020, in response to COVID-19 pandemic, Governor Tom Wolf issued a proclamation of disaster emergency pursuant to 35 Pa. C.S. § 7301(c) a provision of the Emergency Management Services Code.  The Governor’s proclamation activated many emergency resources.  On June 3, 2020, the Governor renewed the Disaster Emergency Proclamation for an additional 90 days.  The Pennsylvania House of Representatives adopted a concurrent resolution ordering the Governor to terminate the disaster emergency.  The Governor was ordered to issue an executive order or proclamation ending the state of disaster emergency.  The dispute concerns whether the concurrent resolution is subject to the presentment requirement embodied in the Pennsylvania Constitution.  This text has remained unchanged since 1790.  The first exception to the presentment is obvious from the plain text of Article III.  Section 9 states that any concurrent resolution “on the question of adjournment” need not be presented to the Governor.  No party avers that H.R. 836, the joint resolution, involves adjournment.  The second exception to the presentment is a concurring resolution proposing a constitutional amendment.  This is set forth in Article XI, Section 1.  The third exception to the presentment is not explicitly delineated.  However, this applies to matters governed by constitutional provisions concerning the legislative power.  Although no provision of the Constitution explicitly withdraws non-legislative resolutions from the requirement of presentment, such resolutions involve only internal affairs of the legislature.  No branch of government may exercise the functions exclusively committed to another branch.

A concurrent resolution seeking to force the Governor to end a state of disaster emergency has legal effect and does not fit into any of the three recognized exceptions to presentment.  Article I, Section 12 does not give the legislature the power to act unilaterally.  The history of that section indicates that the clause was intended as a negative check on the executive power, rather than an affirmative grant of power to the legislature to act unilaterally.  Article I, Section 12 traces its roots to the 1689 English Bill of Rights.  The legislative history makes clear that the provision is a negative check on executive power rather than an affirmative rant for the legislature to act without the Governor.  The General Assembly cannot use unconstitutional means to overturn a Governor’s decision to suspend laws after delegating that power to the Governor.  This is precisely what I told the reporter for the Williamsport Sun-Gazette when interviewed, which interview was reported in their June 13-14, 2020 edition.  Justices Baer, Todd and Donohue joined the opinion.  Justice Dougherty filed a concurring and dissenting opinion.  Chief Justice Saylor filed a dissenting opinion in which Justice Mundy joined.   

CONSTITUTIONAL LAW-FIRST AMENDMENT-SPEECH-GAMBLING REGULATION

Deon v. Barasch, 2020 U.S. App. LEXIS 17092 (3rd Cir. May 29, 2020) Nygaard, C.J. Section 1513 of the Pennsylvania Race Horse Development and Gaming Act prevents appellees Pasquale T. Deon, Sr. (“Deon”) and Maggie Hardy Magerko (“Hardy”) from making any political contributions because they hold interests in businesses that have gaming licenses. They sued the Gaming Board and the Attorney General of Pennsylvania (collectively “the Commonwealth”) claiming First Amendment and Equal Protection violations. The District Court concluded “that Section 1513 of the Gaming Act furthers a substantially important state interest” in preventing quid pro quo corruption. But it ruled that the restriction it imposes on political contributions is unconstitutional because the Commonwealth did not draw it closely enough. It granted summary judgment in favor of Deon and Hardy, permanently enjoining enforcement of this section of the Act.

It is axiomatic that a democratic government must make every effort to fight corruption, and the perception of it, to protect the integrity of its electoral, legislative, and regulatory processes. But when it acts it must be mindful of the fundamental speech and associational rights guaranteed by the First Amendment of the United States Constitution at stake. We conclude that the District Court did not err and we will affirm the order.

Although the Commonwealth need not adopt the least restrictive means to address gaming-related corruption, it must prove that it has created a proportional, closely drawn scheme to address the issue.

For all of these reasons we conclude that the Commonwealth has not met its burden of proving that Section 1513 is a closely drawn, proportional response consistent with an important anti-corruption interest. Accordingly, we will affirm the order of the District Court.

CONSTITUTIONAL LAW-PENNSYLVANIA CONSTITUTION-UNIFORMITY CLAUSE-TAX ASSESSEMENT-TARGETING COMMERCIAL REAL ESTATE

Colonial School District v. Montgomery County Board of Assessment Appeals, 2020 Pa. Commw. LEXIS 408 (May 28, 2020) Leavitt, J.  This case involves challenge to tax assessment as violating uniformity clause because the school district targeted only commercial real estate for assessment appeals and ignored residential properties.  Also, the school district did not adopt the formal written policy setting forth its criteria for challenging existing tax assessments.  The trial court denied taxpayer’s petition to dismiss the school district’s assessment appeal, holding that the assessment policy did not violate the uniformity clause.  The trial court erred.  The trial court’s order was vacated and the matter remanded on taxpayer’s motion to dismiss the school district’s reverse tax appeal.  The taxpayer will be entitled to try to prove violation of the uniformity clause.

CONSTITUTIONAL LAW-FIRST AMENDMENT-FACIAL CHALLENGE

Bruni v. City of Pittsburgh, No. 18-1084 (3d Cir. October 18, 2019) Krause, C.J. This case requires us to determine the constitutionality of a Pittsburgh ordinance that creates a fifteen-foot “buffer zone” outside the entrance of any hospital or healthcare facility. Pittsburgh, Pa., Code § 623.04 (2005) [hereinafter “the Ordinance” or “Pitts. Code”]. In relevant part, the Ordinance states that “[n]o person or persons shall knowingly congregate, patrol, picket or demonstrate” in the prescribed zone. Id. Outside of a Planned Parenthood in downtown Pittsburgh, Plaintiffs engage in leafletting and “peaceful . . . one-on-one conversations” conducted “at a normal conversational level and distance” intended to dissuade listeners from obtaining an abortion. As the City has asserted that the Ordinance applies to this speech, known as “sidewalk counseling,” Plaintiffs argue that the Ordinance is facially unconstitutional under the First Amendment and the District Court erred in granting summary judgment in the City’s favor. Because we conclude that the Ordinance does not cover sidewalk counseling and thus does not impose a significant burden on speech, we will affirm.

CONSTITUTIONAL LAW-14TH AMENDMENT-DUE PROCESS-PROCEDURAL DUE PROCESS-DISCIPLINARY POLICY

Fagal v. Marywood Univ., 2019 U.S. App. LEXIS 30220 (3d Cir. October 8, 2019) Krause, C.J. Non-Precedential.  Frederick F. Fagal, a former tenured professor of Marywood University, appeals the District Court’s judgment against him on his breach-of-contract claim, which was based on allegations that Marywood failed to provide him with the process required under its disciplinary policy before terminating him. He argues the District Court misinterpreted the policy and wrongly concluded that he received the process he was contractually due. Because we perceive no error in the District Court’s interpretation of the policy, we will affirm. 

CONSTITUTIONAL LAW-FIRST AMENDMENT-SPEECH-PUBLIC FORUM-PROFANITY-VOICE AMPLIFICATION

Pomicter v. Luzerne County Convention Center Authority, 2019 U.S. App. LEXIS 28674 (3d Cir. Sepember 23, 2019) Scirica, C.J.  This appeal involves government restrictions on speech at a publicly owned arena in Wilkes-Barre, Pennsylvania. The primary issue we must resolve is whether the government’s policy sequestering all protest activity to enclosures by each entrance of the Mohegan Sun Arena is facially unconstitutional under the First Amendment. In a public forum—a government space dedicated to the free exchange of ideas—the governing authority may not confine speech in this way without showing its restrictions are narrowly tailored to serve a significant interest. But the animal rights activists challenging the policy have conceded that the Arena’s concourse is a nonpublic forum, a space which the government may reasonably reserve for its intended purpose. As the concourse’s function is to facilitate movement of pedestrians into and out of the Arena, we cannot find unreasonable a policy sensibly designed to minimize interference with that flow. Accordingly, we will reverse the District Court’s order because the policy is constitutional. But because the government has not met its burden to show the other two policies at issue—bans on profanity and voice amplification—are reasonable, we will affirm the court’s injunction of those policies.

CONSTITUTIONAL LAW-FIRST AMENDMENT-RELIGION-ESTABLISHMENT CLAUSE-LEGISLATIVE PRAYER 

Fields v. Speaker of the Pa. House of Representatives, 2019 U.S. app. LEXIS 25310.  AMBRO, Circuit Judge

The Pennsylvania House of Representatives begins most legislative sessions with  a prayer. The practice has two features that are challenged in this appeal. First, the House invites guest chaplains to offer the prayer, but it excludes nontheists (those who do not espouse belief in a god or gods, though not necessarily atheists) from serving as chaplains on the theory that “prayer” presupposes a higher power. Second, visitors to the House chamber pass a sign asking them to stand for the prayer, and the Speaker of the House requests that audience members “please rise” immediately before the prayer. At least once a House security guard pressured two visitors who refused to stand.

A group of nontheists have challenged the theists-only policy under the Establishment, Free Exercise, Free Speech, and Equal Protection Clauses of our Constitution. As to the Establishment Clause, we uphold the policy because only theistic prayer can satisfy the historical purpose of appealing for divine guidance in lawmaking, the basis for the Supreme Court taking as a given that prayer presumes a higher power. For the Free Exercise, Free Speech, and Equal Protection Clauses, we hold that legislative prayer is government speech not open to attack via those channels.

The nontheists also challenge as unconstitutionally coercive the requests to “please rise”  for the prayer. We hold that the single incident involving pressure from a security guard is moot. As for the sign outside the House chamber and the Speaker’s introductory request that guests “please rise,” we hold that these are not coercive.

Thus we affirm in part and reverse in part the ruling of the District Court.

The House’s policy preferring theistic over nontheistic prayers does not violate the Establishment Clause because it fits squarely within the historical tradition of legislative prayer. Next, legislative prayer is government speech, so the policy is not susceptible to an attack on free-speech, free-exercise, or equal-protection grounds. Finally, the sole incident of pressure from a security guard  is moot, and the general practice pre-2017 of asking the visitors’ gallery to rise for the opening prayer was not coercive.

CONSTITUTIONAL LAW-FIRST AMENDMENT-SPEECH-CONFIDENTIALITY ORDER

CONSTITUTIONAL LAW—FIRST AMENDMENT—SPEECH—CONFIDENTIALITY ORDER – Bank of Hope v. Miye Chon, et al., 3rd Cir., No. 18-1567 (September 17, 2019).  BIBAS, Circuit Judge. Courts have inherent power to keep their proceedings fair and orderly. They can use that power to order the parties before them not to talk with each other, the press, and the public. But that power comes with limits. The First Amendment requires that we tread carefully when we restrict speech. A court must thus explain why restricting speech advances a substantial government interest, consider less-restrictive alternatives, and ensure that any restriction does not sweep too broadly. Here, Bank of Hope sued Suk Joon Ryu for embezzling money from its customers. As the case went on, Ryu began sending letters to the Bank’s shareholders. Those letters alleged that the Bank’s claims were baseless and were ruining his reputation. He hoped that the letters would pressure the Bank to settle. The Bank then asked the magistrate judge to ban Ryu from contacting its shareholders. The magistrate judge agreed, and the District Court affirmed. But the District Court marshaled no evidence that this restriction on speech was needed to protect this trial’s fairness and integrity. And it considered no less-restrictive alternatives. So its order violates Ryu’s First Amendment rights, and we will vacate and remand.

CONSTITUTIONAL LAW-PENNSYLVANIA CONSTITUTION-ARTICLE IX-MUNICIPAL HOME RULE-PAID SICK DAYS ACT-SAFE AND SECURE BUILDINGS ACT

Pennsylvania Rastaurant and Lodging Association v. City of Pittsburgh, 63 WAP 2017 (Pa. July 17, 2019) Wecht, J.  The Paid Sick Days Act (“PSDA”), 1 as its name suggests, entitles employees to accrue paid sick leave. The Safe and Secure Buildings Act (“SSBA”)2 imposes education and training obligations upon building owners and their employees in furtherance of disaster preparedness, counterterrorism, and related concerns. We are asked to consider whether these ordinances run afoul of the qualified statutory preclusion of local regulations that burden business. We hold that the PSDA does not exceed those limitations, and that the SSBA does exceed them.  

In 1996, the General Assembly enacted the Home Rule Charter and Optional Plans Law, 53 Pa.C.S. §§ 2901-3171 (hereinafter, “the HRC”). Echoing Article IX, Section 2, of our Constitution, the HRC extends home-rule authority only to “function[s] not denied by the Constitution of Pennsylvania, by statute or by [the municipality’s] home rule charter.” Thus, no home rule charter may confer upon a home-rule municipality “power or authority” that is “contrary to or in limitation or enlargement of powers granted by statutes which are applicable to a class or classes of municipalities.” 53 Pa.C.S. § 2962(a). Notwithstanding these limitations, “a home-rule municipality’s exercise of legislative power is presumed valid, absent a specific constitutional or statutory limitation.” SEPTA v. City of Phila., 101 A.3d 79, 88 (Pa. 2014). The HRC instructs that “[a]ll grants of municipal power to municipalities governed by a home rule charter under this subchapter, whether in the form of specific enumeration or general terms, shall be liberally construed in favor of the municipality.” 53 Pa.C.S. § 2961. Accordingly, when we find ambiguity in the scope of municipal authority or the limitations imposed thereon, we must resolve that ambiguity in the municipality’s favor. Nutter v. Dougherty, 938 A.2d 401, 411 (Pa. 2007) (citing Cty. of Delaware v. Twp. of Middletown, 511 A.2d 811, 813 (Pa. 1986)).

CONSTITUTIONAL LAW-FIRST AMENDMENT-BILLBOARDS

Adams Outdoor Adver. LTD. P’ship vs. Pa. DOT, 2019, U.S. App. LEXIS 20841- Opinion by Ambro, Circuit Judge.  Adams Outdoor Advertising, LP, wants to install a billboard near an interchange on U.S. Route 22 in Hanover Township, Pennsylvania.  Adams sought a permit from the Pennsylvania Department of Transportation (“PennDOT”), but it denied the permit under a provision of Pennsylvania law that prohibits “off premise” billboards within 500 feet of a highway interchange.  Adams contends that provision – called the “Interchange Prohibition” – violates the First Amendment because it is too vague or, alternatively, because it does not survive First Amendment scrutiny.  Adams also claims that PennDOT’s permitting requirement for highway billboards separately violates the First Amendment because there is no time limit for its decisions on applications.  We joint the District Court in concluding that PennDOT’s permit requirement violates the First Amendment because it lacks a reasonable time limit for permit determinations, and thus sustain the injunction.  Further, we affirm the Court’s dismissal of Adams’ vagueness challenge because the Interchange Prohibition communicates clearly what it prohibits.  But we cannot sustain its entry of summary judgment in favor of PennDOT Secretary Richards on Adams’ challenge to the scrutiny required to assess the Interchange Prohibition.  Although we conclude the Prohibition is not subject to strict scrutiny, the record is insufficient to establish the required reasoning for the prohibition.   We thus reverse on that claim and remand for further proceedings.  We agree with our District Court colleague’s decision to enjoin Secretary Richards from enforcing the Act’s permit requirement until there is set a time limit that satisfies the First Amendment.

CONSTITUTIONAL LAW-FOURTEENTH AMENDMENT-DUE PROCESS­SUBSTANTIVE DUE PROCESS-RATIONAL RELATIONSHIP-TAXING UNIFORMITY

This opinion deals with Pennsylvania’s recent amendment to the Gaming Law. Under the amendment, casinos pay a supplemental assessment on slot machine revenue and the funds are then distributed primarily to underperforming slot machine facilities to be used for marketing and capital development. The Gaming Act authorized slot machine operations on a newly created aspect of gaming landscape with licenses divided into three types. There was a deliberate attempt to address differently the assessments. Disbursements are made by a formula created by the statute. The court, after a lengthy discussion, found that the program violated the Fourteenth Amendment. Citing a host of state and federal cases, the government must give something to taxpayers in return for a tax and hence a tax which results in a “palpable inequality between the burden imposed and the benefit received” would be voided. Here, the court simply found that taxpayers were entitled to a refund. There was a concurring opinion. The concurrence would rather invalidate the legislation on uniformity clause. However, this majority seems to want to base it on the 14th Amendment. The court also took up the issue of retroactivity. The supplementary daily assessment monies paid into the account by Sands and any other casino in the categories 1 through 3 must be refunded to them. Sands Bethworks Gaming vs. Pennsylvania Dept. of Revenue, Decided April 26, 2019.

CONSTITUTIONAL LAW-PENNSYLVANIA CONSTITUTION-DUE PROCESS­SUBSTANTIVE DUE PROCESS-DELEGATION OF AUTHORITY

This case deals with how taxicabs are regulated in Philadelphia. The court had previously held the legislation unconstitutional. This was the new legislation that was passed. The court found that there was not a due process challenge or a new delegation. The taxicab services can be regulated in the way the legislature did. The fact the owners may put more or less cabs on the street is up to the cab companies. The law bears a rational relationship to a legitimate state objective. It is therefore valid. Likewise, there is no new delegation. This case is worth reading for those general propositions in the federal law, also applicable to the state. Germantown Cab Company vs. Philadelphia Parking Authority, Supreme Court of PA, Decided April 26, 2019.

CONSTITUTIONAL LAW-11TH AMENDMENT-SOVEREIGN IMMUNITY

This case now before us for the third time, requires us to decide whether the Constitution permits a State to be sued by a private party without its consent in the courts of a different State. We hold that it does not and overrule our decision to the contrary in Nevada vs. Hall, 440 U.S. 410 (1979). In 1998, Hyatt sued the Board of Nevada state court for torts he alleged the agency committed during the audit. The sole question presented is whether Neva·da vs. Hall, should be overruled. Nevada vs. Hall, is contrary to our constitutional design and the understanding of sovereign immunity shared by the States that ratified the Constitution. Stare decisis does not compel continued adherence to this erroneous precedent. We therefore overrule Hall and hold that States retain their sovereign immunity from private suits brought in the courts of other States. In short, at the time of the founding, it was well settled that States were immune under both the common law and the law of nations. The Constitutions use of the term States reflects both of these kinds of traditional immunity. And the States retained these aspects of sovereignty, except as altered by the plan of the Convention or certain constitutional Amendments. Consistent with this understanding of state sovereign immunity, this Court has held that the Constitution bars suits against non-consenting States in a wide range of cases. See, e.g., Federal Maritime Commn, supra (actions by private parties before federal administrative agencies); Alden, supra (suits by private parties against a State in its own courts); Blatchford vs. Native Village of Noatak, 501 U.S. 775 (1991) (suits by Indian tribes in Federal Court); Monaco, 292 U.S. 313 (suits by foreign states in federal court); Ex parte New York, 256 U.S. 490 (1921) (admiralty suit by private parties in federal court); Smith vs. Reeves, 178 U.S. 436 (1900) (suits by federal corporations in federal court). Franchise Tax Bd. of Cal. vs. Hyatt, 2019 U.S. LEXIS 3399.

CONSTITUTIONAL LAW-FIRST AMENDMENT-SPEECH-GAY RIGHTS

Fulton v. City of Phila., 3rd Cir. 2019 LEXIS 11711 (April 22, 2019)-A reporter from the Philadelphia Inquirer informed the City of Philadelphia’s Department of Human Services in March 2018 that two of its agencies would not work with same-sex couples as foster parents. Human Services investigated this allegation, which it considered a violation of the City’s anti-discrimination laws. When the agencies confirmed that, because of their religious views on marriage, they would not work with gay couples, Human Services ceased referring foster children to them. One of those agencies, Catholic Social Services (sometimes abbreviated “CSS”), brought this action claiming that the city has violated its rights under the First Amendment’s Free Exercise, Establishment, and Free Speech Clauses, as well as under Pennsylvania’s Religious Freedom Protection Act. It seeks an order requiring the City to renew their contractual relationship while permitting it to turn away same-sex couples who wish to be foster parents. CSS sought preliminary injunctive relief to this effect from the District Court. When it denied the request after a three-day hearing, Fulton v. City of Philadelphia, 320 F. Supp. 3d 661 (E.D. Pa. 2018), CSS appealed. Our question is not whether the City or CSS has behaved reasonably. Nor is our task to mediate a mutually agreeable compromise between the parties. It is to determine whether the City’s actions were lawful. Did it have the authority to insist, consistent with the First Amendment and Pennsylvania law, that CSS not discriminate against same-sex couples as a condition of working with it to provide foster care services? Or, inversely, has CSS demonstrated that the City transgressed fundamental guarantees of religious liberty? At this stage and on this record, we concluded that CSS is not entitled to a preliminary injunction. The City’s non-discrimination policy is a neutral, generally applicable law, and the religious views of CSS do not entitle it to an exception from that policy. See Emp’t Div. v. Smith, 494 U.S. 872, 877-78 (1990). It has failed to make a persuasive showing that the City targeted it for its religious beliefs, or is motivated by ill will against its religion, rather than sincere opposition to discrimination on the basis of sexual orientation. Thus, we affirm.  

CONSTITUTIONAL LAW-FIRST TERM-THE NUMBER RIGHTS-FREEDOM TO ASSOCIATE

Adams v. Governor of Del. 2019 U.S. App. LEXIS 10618 (April 10, 2019) Fuentes, J.-James R. Adams is a resident and a member of the State Bar of Delaware. For some time, he has expressed a desire to be considered for a judicial position in that state. Following the announcement of several judicial vacancies, Adams considered applying but ultimately chose not to because the announcement requires that the candidate be a Republican. Because Adams was neither a Republican nor a Democrat, he concluded that any application he submitted would be futile. Adams brings this suit against the Governor of the State of Delaware to challenge the provision of the Delaware Constitution that effectively limits service on state courts to members of the Democratic and Republican parties. Adams claims that under the Supreme Court’s precedent in Elrod v. Burns and Branti v. Finkel, a provision that limits a judicial candidate’s freedom to associate (or not to associate) with the political party of his or her choice is unconstitutional. The Governor argues that because judges are policymakers, there are no constitutional restraints on his hiring decisions and he should be free to choose candidates based on whether they belong to one of the two major political parties in Delaware – that is, whether they are Democrats or Republicans. We disagree and conclude that judges are not policymakers because whatever decisions judges make in any given case relates to the case under review and not to partisan political interests. We therefore conclude that the portions of Delaware’s constitution that limit Adams’s ability to apply for a judicial position while associating with the political party of his choice violate his First Amendment rights, and we will accordingly affirm in part and reverse in part the District Court’s grant of summary judgment in favor of Adams. 

CONSTITUTIONAL LAW-EIGHTH AMENDMENT-EXCESSIVE FINES CLAUSE-FORFEITURE

Timbs v. Indiana, 2019 Supreme Court of the U.S. LEXIS 1350 (February 20, 2019) Ginsburg, J.-This case involves forfeiture of a $42,000 vehicle with a maximum fine of $10,000. The trial court in Indiana ruled that such forfeiture would be grossly disproportionate to the gravity of the offense and hence unconstitutional under the Eighth Amendment excessive fines clause. The Indiana Supreme Court did not decide whether the forfeiture would be excessive. It held that the excessive fines clause constrains only federal actions and is inapplicable to state actions. The question presented is: Is the Eighth Amendment’s Excessive Fines Clause an “incorporated” protection applicable to the States under the Fourteenth Amendment’s Due Process Clause? Like the Eighth Amendment’s proscriptions of “cruel and unusual punishment” and “[e]xcessive bail,” the protection against excessive fines guards against abuses of government’s punitive or criminal-law-enforcement authority. This safeguard, we hold, is “fundamental to our scheme of ordered liberty,” with “dee[p] root[s] in [our] history and tradition. McDonald v. Chicago, 561 U.S. 742, 767, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010) (internal quotation marks omitted; emphasis deleted). The Excessive Fines Clause is therefore incorporated by the Due Process Clause of the Fourteenth Amendment. The case was sent back to Indiana.

CONSTITUTIONAL LAW-ELEVENTH AMENDMENT-SOVEREIGN IMMUNITY-LIQUOR CONTROL BOARD

Earl Patterson v. Penna. Liquor Control Board, 2019 U.S. Dist (February 12, 2019) Restrepo, J.-Earl Patterson was employed as a maintenance person for the Pennsylvania Liquor Control Board (“PLCB”) when he reported for duty at a PLCB-operated liquor store in Eddystone, Pennsylvania. Shortly after his arrival, the location’s assistant manager accused him of attempting to rob the store. Patterson was detained by the police as a result of the PLCB employee’s accusation. Patterson filed a Complaint pursuant to 42 U.S.C. §§1981 and 1983 against the PLCB alleging race discrimination and violation of Fourteenth Amendment Equal Protection in connection with these events. Patterson now appeals the District Court’s Order granting the PLCB’s motion to dismiss his Complaint on Eleventh Amendment sovereign immunity grounds. For the reasons that follow, we will affirm. Though, by its terms, the Eleventh Amendment immunizes only “States” against private actions brought by citizens of other states, see U.S. Const. amend. XI, it is “well established” that suits brought by in-state litigants against “arms” of a state “may nonetheless be barred by the Eleventh Amendment.” Karns, 879 F.3d at 512-13 (quoting Edelman v. Jordan, 415 U.S. 651, 663 (1974), and Bowers v. Nat’l Collegiate Athletic Ass’n, 475 F.3d 524, 545 (3d Cir. 2007)); see also Hans v. Louisiana, 134 U.S. 1, 20 (1890). In sum, three of the four subfactors only slightly tilt toward granting immunity: separate incorporation, power to sue and be sued, and immunity from state taxes. The remaining subfactor, consideration of the PLCB as an arm of the state under Pennsylvania statutory and case law, tips the balance in favor of granting the PLCB sovereign immunity under the second factor. In sum, the PLCB is subject to substantial oversight from the state. Therefore, we find that this factor weighs definitively in favor of finding that the PLCB is an arm of the state. We therefore conclude the PLCB is an arm of the state that is entitled to Eleventh Amendment sovereign immunity. 

STATUTE OF LIMITATIONS-CONSTITUTIONAL LAW-SEARCH & ARREST

Tam Thah Nguyen v. Commonwealth of Penna; Bromberg, 2018 U.S. Dist. 2-15-cv-05082 (October 2018) Bibas, J.-A claim that a search was unconstitutional accrues when the officer conducts the search, not when a court later declares it unconstitutional. So the statute of limitations runs from the time of the search, not the time of the court decision. Here, Tam Thanh Nguyen sued Pennsylvania State Trooper Jared Bromberg for a 2012 search and arrest, but only after a 2015 Pennsylvania court decision held that search unconstitutional. Nguyen’s suit thus arrives more than a year late and is time-barred, so we will affirm. 

FEDERAL TORT CLAIMS ACT-DISCRETIONARY FUNCTION TEST-INMATE HOUSING ISSUES

Appellant Michael Rinaldi, who at all relevant times was an inmate in custody at United States Penitentiary, Lewisburg (“Lewisburg” or the “Institution”), appeals the District Court’s dismissal of his complaint alleging that the conduct of various personnel violated his constitutional and statutory rights. His appeal requires us to resolve three matters of first impression for our Court: (1) what showing an inmate must make to establish that administrative remedies were not “available” within the meaning of the Prison Litigation Reform Act (“PLRA”); (2) whether the PLRA’s exhaustion requirement is satisfied where a prison administrator elects to resolve a procedurally improper administrative request on the merits; and (3) whether a prison’s housing and cellmate assignments meet the discretionary function exception to the Federal Tort Claims Act’s limited waiver of sovereign immunity. For the reasons that follow, we will affirm the District Court’s dismissal of Rinaldi’s complaint in part and will vacate and remand in part. 

The court found the proper exhaustion in that the constitutional claims can go forward, but it also found that the discretionary right of prison authorities with respect to housing and to the Federal Tort Claims Act would be thrown out. The First Amendment retaliation claim could go forward because it was exhaustion. Administrative remedies are not “available” under the Prisoner Reform Act where a prison official inhibits an inmate from resorting to them through serious threats of retaliation and bodily harm. In that situation, relief is unavailable and exhaustion is unnecessary. 

The court discusses what is required to prove unavailable of a remedy. To defeat a failure-to-exhaust defense, an inmate must show (1) that the threat was sufficiently serious that it would deter a reasonable inmate of ordinary firmness and fortitude from lodging a grievance, and (2) that the threat actually did deter this particular inmate.

The court vacated and remanded for further proceedings First and Eighth Amendment claims, but affirmed and dismissed under the Federal Tort Claims Act. 

CONSTITUTIONAL LAW-FOURTEENTH AMENDMENT-DUE PROCESS-ACCESS TO THE COURTS

Jutrowski v. Twp. of Riverdale, 3d Cir. 2018 LEXIS 25806 (September 12, 2018) Krause, Jr.  This case arises from an undisputed constitutional violation: an act of excessive force committed during the arrest of Appellant Emil Jutrowski in which he was kicked in the face, breaking his eye socket. Appellees – consisting of two Riverdale, New Jersey Police Officers and two New Jersey State Troopers involved in the arrest (the “Individual Defendants”), and their respective employers, the Township of Riverdale and the State of New Jersey (collectively, the “Defendants”) – do not dispute that one of the officers kicked Jutrowski. But each of the Individual Defendants assert he neither inflicted the blow himself nor saw anyone else do so, and Jutrowski, whose face was pinned to the pavement when the excessive force occurred, is unable to identify his assailant. He therefore brought excessive force claims against all Defendants and conspiracy claims against the four Individual Defendants under 42 U.S.C.  § 1983. The District Court, however, relying on our precedent that a defendant in a civil rights action must have “personal involvement” in the alleged wrongs, Rode v Dellarciprete, 845 F.2d 1195, 1207-08 (3rd Cir. 1988), determined that Jutrowski’s inability to identify his attacker was fatal to his claims and granted summary judgment in Defendants’ favor. We are now called upon to outline the contours of this “personal involvement” requirement in § 1983 cases and to consider its application when a plaintiff who indisputably suffered a constitutional injury at the hands of one officer comes up against the proverbial “blue wall of silence.” Despite the unfortunate situation created for plaintiffs like Jutrowski who are unable to identify their attackers through no fault of their own, we hold that a plaintiff alleging that one or more officers engaged in unconstitutional conduct must establish the “personal involvement” of each named defendant to survive summary judgment and take that defendant to trial. Nonetheless, where a plaintiff adduces sufficient evidence of an after-the-fact conspiracy to cover up misconduct, even of an unidentified officer, he may be able to state a claim under § 1983 for the violation of a different constitutional right: the due process right of access to the courts. Such is the case here. Accordingly, we will affirm the District Court as to Jutrowski’s excessive force claim but will reverse and remand as to his conspiracy claim. 

CONSTITUTIONAL LAW-FIFTH AMENDMENT-TAKINGS CLAUSE-REGULATION

Newark Cab Association; Newark Taxi Owner Association; Teterboro Airport Limousine Service; ABBAS ABBAS; PETRO ABDELMESSIEH; SAYEV KHELLAH; MICHAEL W. SAMUEL; GEORGE TAWFIK, individually, and by certain plaintiffs on behalf of others similarly situated v City of Newark, 2018, U.S. Court of Appeals, Third Cir., (August 20, 2018) Chagares, J.  Newark Cab Association, Newark Taxi Owner Association, Teterboro Airport Limousine Service, Abbas Abbas, Petro Abdelmessieh, Sayev Khellah, Michael W. Samuel and George Tawfik (collectively, the “plaintiffs”) filed a lawsuit under 42 U.S.C. § 1983 and New Jersey law challenging an agreement the City of Newark (the “City”) entered into with Uber Technologies, Inc. (“Uber”). They alleged inter alia, that the City violated their rights under the Takings Clause of the Fifth Amendment and the Due Process and Equal Protection Clauses of the Fourteenth Amendment by subjecting Uber and other Transportation Network Companies (“TNCs”) to less onerous regulations than those imposed on taxi and limousine operators. The City moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). The District Court granted the motion, and dismissed the action with prejudice. This appeal followed. The City’s decision to permit TNCs to operate subject to limited regulations places the plaintiffs in an undoubtedly difficult position. However, the potentially unfair situation created by this decision cannot be remedied through the plaintiffs’ constitutional and state law claims. For the reasons that follow, we will affirm the order of the District Court.

CONSTITUTIONAL LAW-FIRST AMENDMENT-SPEECH-RAP SONG

Commonwealth v Knox, 2018, LEXIS 4272 (August 21, 2018) Saylor J.  In this appeal by allowance, we address whether the First Amendment of the United States Constitution permits the imposition of criminal liability based on the publication of a rap-music video containing threatening lyrics directed to named law enforcement officers. While criminal drug charges were pending, Appellant and Brasley wrote and recorded a rap song entitled, “F—k the Police,” which was put on video with still photos of Appellant and Beasley displayed in a montage. In the photos, the two are looking into the camera and motioning as if firing weapons. The view was uploaded to YouTube by a third party, and the YouTube link was placed on a publicly-viewable Facebook page entitled “Beaz Mooga,” which the trial evidence strongly suggested belonged to Beasley. In terms of the songs effects, Officer Kosko testified that when he heard it he was “shocked” and it made him “nervous.” He cited it as one of the reasons he decided to leave the Pittsburgh police force and relocate. See id. at 107, 109. For his part, Detective Zeltner stated he found the video “very upsetting,” and that it made him concerned for his safety as well as that of his family and fellow officers. He explained that extra personnel had to be assigned to Zone 5 to deal with “the threat.” By the conclusion of the trial, it became clear that the rap song was the sole basis on which the Commonwealth sought convictions for witness intimidation and terroristic threats. In his summation, therefore, Appellant argued that the song was protected speech, and hence any conviction based on it would violate his First Amendment rights. The words themselves are not the only component of Appellant’s expressive conduct which tends to make the song threatening. The soundtrack includes bull horns, police sirens, and machine-gun fire ringing out over the words, “bustin’ heavy metal.” The order of the Superior Court is affirmed. 

CONSTITUTIONAL LAW-FIRST AMENDMENT-RETALIATION

Kelly Conard v Penna. State Police, Penna. State Police Human Resources, Sgt. Joseph Tripp, Sgt. Dennis Hile, 2018 U.S. Court of Appeals, Third Cir., (August 28, 2018).  Plaintiff Kelly Conard appeals from the July 12, 2016 order of dismissal of a civil rights action that she brought under 42 U.S.C. § 1983 against her former employer, the Pennsylvania State Police, and her former State Police Supervisors, Sergeants Joseph Tripp and Dennis Hile. The District Court held that the bulk of Conard’s claims were barred because they had been adjudicated in a prior action which she initiated after she unsuccessfully sought reemployment by the State Police after she voluntarily resigned. The Court also dismissed her separate claim that defendants retaliated against her for having filed that prior action by giving her negative employment references as it held that the complaint failed to state a claim upon which relief could be granted. For the reasons set forth below, we will reverse the order dismissing Conard’s First Amendment retaliation claim. 

CONSTITUTIONAL LAW-FIRST AMENDMENT-RETALIATION

Kelly Conard v Penna. State Police, Penna. State Police Human Resources, Sgt. Joseph Tripp, Sgt. Dennis Hile, 2018 U.S. Court of Appeals, Third Cir., (August 28, 2018).  Plaintiff Kelly Conard appeals from the July 12, 2016 order of dismissal of a civil rights action that she brought under 42 U.S.C. § 1983 against her former employer, the Pennsylvania State Police, and her former State Police Supervisors, Sergeants Joseph Tripp and Dennis Hile. The District Court held that the bulk of Conard’s claims were barred because they had been adjudicated in a prior action which she initiated after she unsuccessfully sought reemployment by the State Police after she voluntarily resigned. The Court also dismissed her separate claim that defendants retaliated against her for having filed that prior action by giving her negative employment references as it held that the complaint failed to state a claim upon which relief could be granted. For the reasons set forth below, we will reverse the order dismissing Conard’s First Amendment retaliation claim. 

CONSTITUTIONAL LAW-FIRST AMENDMENT-RELIGION-CONTRACT SUIT WITH MINISTER

Lee v Sixth Mt. Zion Baptist Church of Pittsburgh, 2018 U.S. App. LEXIS 25152 (September 5, 2018) Shwartz, J.  Reverend Dr. William David Lee was terminated from his position as pastor of the Sixth Mount Zion Missionary Baptist Church (“the Church”) and sued the Church for allegedly breaching his employment contract. The District court granted summary judgment in the Church’s favor because the adjudication of Lee’s contract claim would impermissibly entangle the Court in religious doctrine in violation of the First Amendment’s Establishment Clause. We agree and will affirm.

CONSTITUTIONAL LAW-FIFTH AMENDMENT-TAKINGS CLAUSE

PA. Prof’l Liab. Joint Underwriting Ass’n v Wolf , 1308 U.S. Dist. LEXIS 119438 (July 18, 2018) Conner, C. Pennsylvania attempts to take over Joint Underwriting Assoc. Board transferred 200 million dollars to the General Fund of the Commonwealth violates Takings Clause of the Fifth and Fourteenth Amendment to the Federal Constitution. This is a taking of private property without due process and without compensation. The private funds of a private entity, in spite of an attempt by the General Assembly to take over the Association and make it public. The monies were previously put into the fund. A preliminary injunction was granted. Apparently part of this is on appeal of previous decision to the 3rd Circuit and of course there will have to be a final hearing on the instant matter. 

CONSTITUTIONAL LIVE IN PENNA. CONSTITUTION – ARTICLE III

§4. Washington v Dept. of Pub. Welfare of Pa., 2018, Pa. Supreme Court, LEXIS 3695 (July 18, 2018) J. Todd. This section of the Constitution requires that a bill’s language from its first consideration to its third and final consideration be the same language in order for Article III, §4 requirements to be met. In this case, the bill in question addressing public welfare code did not comply. The provisions of House Bill 1261, printer’s number 1385, were entirely removed from the bill by the Senate. There had already been enacted by a different piece of legislation. Thus, since the original provisions were gone when the new provisions were added by the Senate, it was factually and legally impossible for the new provisions to work together with the deleted provisions to accomplish a single purpose. Indeed, the purpose of the original provision sought to achieve had already been accomplished by other legislative means. We hold that amendments and such in Feebled legislation are not germane as a matter of law. Consequently, the Senate amendments were not germane and accordingly the passage of House Bill 1261, printer’s number 1385, were passed by the House in 2011 could not count towards requirements of Article III, §4. Because the Senate is in search of it’s own proposed legislation into the whole empty shell transformed it into an entirely new bill consisting solely of these insertions, Article III, §4 of the Penna. Constitution required a new bill to be considered by both Houses three times thereafter. It is undisputed that the House can consider the Senate’s version of House Bill 1261 only once. The Commonwealth Court is reversed and Act 80 is stricken entirely. Justice Baer filed a concurrent Opinion. 

CONSTITUTIONAL LAW-FIRST AMENDMENT-SPEECH-UNIONIZATION BY PUBLIC EMPLOYEES

Janus v. American Federation of State, County and Municipal Employees, 2018 U.S. LEXIS 4028 (S. Ct. June 27, 2018) Alito, J. Under Illinois law, public employees are forced to subsidize a union, even if they choose not to join and strongly object to the positions the union takes in collective bargaining and related activities. We conclude that this arrangement violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.

As illustrated by the record in this case, unions charge nonmembers, not just for the cost of collective bargaining per se, but also for many other supposedly connected activities. Here, the nonmembers were told that they had to pay for “[l]obbying,” “[s]ocial and recreational activities,” “advertising,” “[m]embership meetings and conventions,” and “litigation,” as well as other unspecified “[s]ervices” that “may ultimately inure to the benefit of the members of the local bargaining unit.” The total chargeable amount for nonmembers was 78.06% of full union dues. Id., at 34a. 

In simple terms, the First Amendment does not permit the government to compel a person to pay for another party’s speech just because the government thinks that the speech furthers the interests of the person who does not want to pay.

Even without agency fees, designation as the exclusive representative confers many benefits. As noted, that status gives the union a privileged place in negotiations over wages, benefits, and working conditions. See §315/6(c). Not only is the union given the exclusive right to speak for all the employees in collective bargaining, but the employer is required by state law to listen to and to bargain in good faith with only that union. §315/7. Designation as exclusive representative thus “results in a tremendous increase in the power” of the union. American Communications Assn. v. Douds, 339 U. S. 382, 401 (1950).

In sum, we do not see any reason to treat the free-rider interest any differently in the agency-fee context than in any other First Amendment context. See Knox, 567 U. S., at 311, 321. We therefore hold that agency fees cannot be upheld on free-rider grounds.

The Union has also failed to show that, even if public employees enjoyed free speech rights, the First Amendment was nonetheless originally understood to allow forced subsidies like those at issue here. We can safely say that, at the time of the adoption of the First Amendment, no one gave any thought to whether public-sector unions could charge nonmembers agency fees. Entities resembling labor unions did not exist at the founding, and public-sector unions did not emerge until the mid-20th century. The idea of public-sector unionization and agency fees would astound those who framed and ratified the Bill of Rights.7 Thus, the Union cannot point to any accepted founding-era practice that even remotely resembles the compulsory assessment of agency fees from public-sector employees. We do know, however, that prominent members of the founding generation condemned laws requiring public employees to affirm or support beliefs with which they disagreed. As noted, Jefferson denounced compelled support for such beliefs as “‘sinful and tyrannical,’” supra, at 9, and others expressed similar views.

For the reasons given above, we conclude that public-sector agency-shop arrangements violate the First Amendment, and Abood erred in concluding otherwise. There remains the question whether stare decisis nonetheless counsels against overruling Abood. It does not.

All these reasons—that Abood’s proponents have abandoned its reasoning, that the precedent has proved unworkable, that it conflicts with other First Amendment decisions, and that subsequent developments have eroded its underpinnings—provide the “‘special justification[s]’” for overruling Abood. Post, at 19 (KAGAN, J., dissenting) (quoting Kimble v. Marvel Entertainment, LLC, 576 U. S. ___, ___ (2015) (slip op., at 8)).

For these reasons, States and public-sector unions may no longer extract agency fees from nonconsenting employees. Under Illinois law, if a public-sector collectivebargaining agreement includes an agency-fee provision and the union certifies to the employer the amount of the fee, that amount is automatically deducted from the nonmember’s wages. §315/6(e). No form of employee consent is required. 

This procedure violates the First Amendment and cannot continue. Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed. Johnson v. Zerbst, 304 U. S. 458, 464 (1938); see also Knox, 567 U. S., at 312–313. Rather, to be effective, the waiver must be freely given and shown by “clear and compelling” evidence. Curtis Publishing Co. v. Butts, 388 U. S. 130, 145 (1967) (plurality opinion); see also College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U. S. 666, 680–682 (1999). Unless employees clearly and affirmatively consent before any money is taken from them, this standard cannot be met.

Abood was wrongly decided and is now overruled. The judgment of the United States Court of Appeals for the Seventh Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

Supremacy Clause: Standing Gerrymandering

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 case about group political interests, not individual legal rights.  The court is not responsible for vindicating generalized partisan preferences.  The courts constitutionally prescribe specifics to vindicate the original rights of the people appearing before it.

CONSTITUTIONAL LAW-FIRST AMENDMENT-SPEECH-POLITICAL BADGES NEAR VOTING BOOTHS

Minnesota Voters Alliance v. Joe Mansky, 2018 U.S. LEXIS 3685 (June 14, 2018) Roberts, C.J.  Under Minnesota law, voters may not wear a political badge, political button, or anything bearing political insignia inside a polling place on Election Day. The question presented is whether this ban violates the Free Speech Clause of the First Amendment.

The First Amendment prohibits laws “abridging the freedom of speech.” Minnesota’s ban on wearing any “political badge, political button, or other political insignia” plainly restricts a form of expression within the protection of the First Amendment.

A polling place in Minnesota qualifies as a nonpublic forum. It is, at least on Election Day, government-controlled property set aside for the sole purpose of voting.

In light of the special purpose of the polling place itself, Minnesota may choose to prohibit certain apparel there because of the message it conveys, so that voters may focus on the important decisions immediately at hand. 

But the State must draw a reasonable line. Although there is no requirement of narrow tailoring in a nonpublic forum, the State must be able to articulate some sensible basis for distinguishing what may come in from what must stay out. Here, the unmoored use of the term “political” in the Minnesota law, combined with haphazard interpretations the State has provided in official guidance and representations to this Court, cause Minnesota’s restriction to fail even this forgiving test.

Cases like this “present[] us with a particularly difficult reconciliation: the accommodation of the right to engage in political discourse with the right to vote.” Minnesota, like other States, has sought to strike the balance in a way that affords the voter the opportunity to exercise his civic duty in a setting removed from the clamor and din of electioneering. While that choice is generally worthy of our respect, Minnesota has not supported its good intentions with a law capable of reasoned application. 

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. 

CONSTITUTIONAL LAW-FIRST AMENDMENT-SPEECH-ABORTION-NOTIFICATION

National Institute of Family and Life Advocates v. Xavier Becerra, Attorney General of California, 2018 U.S. LEXIS 4025 (June 26, 2018) Thomas, J.  The California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act) requires clinics that primarily serve pregnant women to provide certain notices. Cal. Health & Safety Code Ann. §123470 et seq. (West 2018). Licensed clinics must notify women that California provides free or low-cost services, including abortions, and give them a phone number to call. Unlicensed clinics must notify women that California has not licensed the clinics to provide medical services. The question in this case is whether these notice requirements violate the First Amendment.

In sum, neither California nor the Ninth Circuit has identified a persuasive reason for treating professional speech as a unique category that is exempt from ordinary First Amendment principles. We do not foreclose the possibility that some such reason exists. We need not do so because the licensed notice cannot survive even intermediate scrutiny. California asserts a single interest to justify the licensed notice: providing low-income women with information about state-sponsored services. Assuming that this is a substantial state interest, the licensed notice is not sufficiently drawn to achieve it.

In short, petitioners are likely to succeed on the merits of their challenge to the licensed notice. Contrary to the suggestion in the dissent, post, at 3–4 (opinion of BREYER, J.), we do not question the legality of health and safety warnings long considered permissible, or purely factual and uncontroversial disclosures about commercial products.

For all these reasons, the unlicensed notice does not satisfy Zauderer, assuming that standard applies. California has offered no justification that the notice plausibly furthers. It targets speakers, not speech, and imposes an unduly burdensome disclosure requirement that will chill their protected speech. Taking all these circumstances together, we conclude that the unlicensed notice is unjustified and unduly burdensome under Zauderer. We express no view on the legality of a similar disclosure requirement that is better supported or less burdensome. 

We hold that petitioners are likely to succeed on the merits of their claim that the FACT Act violates the First Amendment. We reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

CONSTITUTIONAL LAW-8TH AMENDMENT-SEXUAL ABUSE

Ricks v. Shover, 2018 U.S. App. LEXIS 15057 (3d Cir. June 5, 2018) Rendell, C.J.  In this § 1983 case, Plaintiff-Appellant Gregory Ricks, a former inmate at Pennsylvania State Corrections facility SCI-Graterford, appeals the dismissal of his complaint alleging sexual abuse and excessive force in violation of the Eighth Amendment.

Whether sexual abuse can constitute “cruel and unusual punishment” under the Eighth Amendment is a matter of first impression in our Court. We write today to state in plainest terms that it does. Our society requires prisoners to give up their liberty, but that surrender does not encompass the basic right to be free from severe unwanted sexual contact. We will give Ricks another chance to cure his complaint as it relates to the Eighth Amendment sexual abuse claim against Keil, with a view to the applicable law as discussed herein. Although his sexual abuse claim as to Shover under a participation or failure-to-intervene theory was properly dismissed, Ricks’ excessive force claim stands on a different footing and should have been permitted to survive the motion to dismiss. We will therefore affirm in part, vacate in part, and reverse in part the District Court’s order, and remand for further proceedings consistent with this opinion.

Ricks raises an independent sexual abuse claim against Lt. Shover, whom he claims participated in the alleged abuse by failing to end it. As pleaded, this claim is insubstantial because the encounter was so brief that, even viewed in the light most favorable to Ricks, Shover simply would have had no opportunity to instruct Keil to stop. The incident’s brevity similarly defeats Ricks’ failure to-intervene claim against Shover. An officer’s failure to stop an ongoing constitutional violation violates the Eighth Amendment when he “had a reasonable opportunity to intervene and simply refused to do so.” Smith, 293 F.3d at 650–51. According to Ricks, Shover had the opportunity when Ricks verbally protested to him, and refused to intervene and punished Ricks for seeking assistance. But again, the alleged violation was over before Ricks called out to Shover. And Smith cautions that liability will only attach if the opportunity to intervene is “realistic and reasonable.” Id. at 651. While Shover’s alleged reaction is disturbing, it is better addressed through an excessive force claim, as we discuss below, than through a failure-to-intervene claim. We therefore will affirm in part, because the District Court properly dismissed this claim, and amendment with respect to this claim would be futile.

The court clarified that “the pivotal inquiry in reviewing an inmate’s § 1983 claim for excessive force is ‘whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.’” Smith, 293 F.3d at 649 (quoting Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000)). In conducting this analysis of the officer’s intent, we consider five factors: “(1) the need for the application of force; (2) the relationship between the need and the amount of force that was used; (3) the extent of the injury inflicted; (4) the extent of the threat to the safety of staff and inmates, as reasonably perceived by responsible officials on the basis of facts known to them; and (5) any efforts made to temper the severity of the forceful response.” Id. (quoting Brooks, 204 F.3d at 106). The objective component of the excessive force inquiry is met when “the inmate’s injury was more than de minimis.” Fuentes v. Wagner, 206 F.3d 335, 345 (3d Cir. 2000). 22 Here, the District Court correctly cited Smith, but did not evaluate the facts under those factors. Ricks avers that a proper analysis under the factors would lead to the conclusion that he plausibly alleged an Eighth Amendment violation. Affording him, as a plaintiff proceeding pro se, the benefit of any doubt, we agree that his complaint should not have been dismissed. While Ricks’ pleading may not have been detailed enough for the Court to analyze all of the factors, certainly the allegations of his being “slammed” and the injuries caused suggest a use of force that was out of proportion to the relative calm of the situation. With further pleading or discovery, the need for the use of force (like the penological purpose or state of mind), threat to safety, and extent of injuries can be further developed. But, viewing the sparse record and our responsibility to construe Ricks’ complaint liberally, we cannot conclude that he has failed to state a plausible claim for relief. While we express no view as to the merits of Ricks’ claim against Shover, we conclude that the District Court erred by dismissing his complaint for failure to state a claim. Accordingly, we will reverse the District Court’s order with respect to his excessive force claim, and remand for further proceedings.

CONSTITUTIONAL LAW-FIRST AMENDMENT-FREE EXERCISE CLAUSE-CAKE DECORATING FOR GAY COUPLE

Masterpiece Cakeshop v. Colorado Civil Rights Commission, 2018 U.S. LEXIS 3386 (June 4, 2018) Kennedy, J.  In 2012 a same-sex couple visited Masterpiece Cakeshop, a bakery in Colorado, to make inquiries about ordering a cake for their wedding reception. The shop’s owner told the couple that he would not create a cake for their wedding because of his religious opposition to same-sex marriages—marriages the State of Colorado itself did not recognize at that time. The couple filed a charge with the Colorado Civil Rights Commission alleging discrimination on the basis of sexual orientation in violation of the Colorado Anti-Discrimination Act. The Commission determined that the shop’s actions violated the Act and ruled in the couple’s favor. The Colorado state courts affirmed the ruling and its enforcement order, and this Court now must decide whether the Commission’s order violated the Constitution.

Whatever the confluence of speech and free exercise principles might be in some cases, the Colorado Civil Rights Commission’s consideration of this case was inconsistent with the State’s obligation of religious neutrality. The reason and motive for the baker’s refusal were based on his sincere religious beliefs and convictions. The Court’s precedents make clear that the baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws. Still, the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach. That requirement, however, was not met here. When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires. Given all these considerations, it is proper to hold that whatever the outcome of some future controversy involving facts similar to these, the Commission’s actions here violated the Free Exercise Clause; and its order must be set aside.

The neutral and respectful consideration to which Phillips was entitled was compromised here, however. The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.

For the reasons just described, the Commission’s treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.

The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market. 

The judgment of the Colorado Court of Appeals is reversed.

Constitutional Law, 10th Amendment

Murphy, Governor of New Jersey, et al v. National Collegiate Athletic Assn, et al., No. 16-476 (S. Ct.  May 14, 2018), Alito, J.

JUSTICE ALITO delivered the opinion of the Court. The State of New Jersey wants to legalize sports gambling at casinos and horseracing tracks, but a federal law, the Professional and Amateur Sports Protection Act, generally makes it unlawful for a State to “authorize” sports gambling schemes. 28 U. S. C. §3702(1). We must decide whether this provision is compatible with the system of “dual sovereignty” embodied in the Constitution.

The legislative powers granted to Congress are sizable, but they are not unlimited. The Constitution confers on Congress not plenary legislative power but only certain enumerated powers. Therefore, all other legislative power is reserved for the States, as the Tenth Amendment confirms. And conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States. The anti-commandeering doctrine simply represents the recognition of this limit on congressional authority.

Constitutional Law: Fourth Amendment Arrest Excessive Police Force

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 qualified immunity. 

“Qualified immunity attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” White v. Pauly, 580 U. S. ___, ___ (2017) (per curiam) (slip op., at 6) (alterations and internal quotation marks omitted). “Because the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct.” Brosseau v. Haugen, 543 U. S. 194, 198 (2004) (per curiam).

“[S]pecificity is especially important in the Fourth Amendment context, where the Court has recognized that it is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts.” Mullenix v. Luna, 577 U. S. ___, ___ (2015) (per curiam) (slip op., at 5) (internal quotation marks omitted). Use of excessive force is an area of the law “in which the result depends very much on the facts of each case,” and thus police officers are entitled to qualified immunity unless existing precedent “squarely governs” the specific facts at issue. Id., at ___ (slip op., at 6) (internal quotation marks omitted and emphasis deleted). Precedent involving similar facts can help move a case beyond the otherwise “hazy border between excessive and acceptable force” and thereby provide an officer notice that a specific use of force is unlawful. Id., at ___ (slip op., at 12) (internal quotation marks omitted).

This is far from an obvious case in which any competent officer would have known that shooting Hughes to protect Chadwick would violate the Fourth Amendment.

For these reasons, the petition for certiorari is granted; the judgment of the Court of Appeals is reversed; and the case is remanded for further proceedings consistent with this opinion

CONSTITUTIONAL LAW-SEPARATION OF POWERS-ALIEN TORT STATUTE

Jesner v. Arab Bank, 2018 U.S. LEXIS 2631 (April 24, 2018) Kennedy, J.  Petitioners in this case, or the persons on whose behalf petitioners now assert claims, allegedly were injured or killed by terrorist acts committed abroad. Those terrorist acts, it is contended, were in part caused or facilitated by a foreign corporation. Petitioners now seek to impose liability on the foreign corporation for the conduct of its human agents, including its then-chairman and other highranking management officials. The suits were filed in a United States District Court under the Alien Tort Statute, commonly referred to as the ATS. See 28 U. S. C. §1350.

The foreign corporation charged with liability in these ATS suits is Arab Bank, PLC; and it is respondent here. Some of Arab Bank’s officials, it is alleged, allowed the Bank to be used to transfer funds to terrorist groups in the Middle East, which in turn enabled or facilitated criminal acts of terrorism, causing the deaths or injuries for which petitioners now seek compensation. Petitioners seek to prove Arab Bank helped the terrorists receive the moneys in part by means of currency clearances and bank transactions passing through its New York City offices, all by means of electronic transfers.

It is assumed here that those individuals who inflicted death or injury by terrorism committed crimes in violation of well-settled, fundamental precepts of international law, precepts essential for basic human-rights protections. It is assumed as well that individuals who knowingly and purposefully facilitated banking transactions to aid, enable, or facilitate the terrorist acts would themselves be committing crimes under the same international-law prohibitions.

Petitioners contend that international and domestic laws impose responsibility and liability on a corporation if its human agents use the corporation to commit crimes in violation of international laws that protect human rights. The question here is whether the Judiciary has the authority, in an ATS action, to make that determination and then to enforce that liability in ATS suits, all without any explicit authorization from Congress to do so.

The answer turns upon the proper interpretation and implementation of the ATS. The statute provides: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” §1350. The Court must first ask whether the law of nations imposes liability on corporations for human-rights violations committed by its employees. The Court must also ask whether it has authority and discretion in an ATS suit to impose liability on a corporation without a specific direction from Congress to do so.

Petitioners are plaintiffs in five ATS lawsuits filed against Arab Bank in the United States District Court for the Eastern District of New York. The suits were filed between 2004 and 2010.

A significant majority of the plaintiffs in these lawsuits—about 6,000 of them—are foreign nationals whose claims arise under the ATS. These foreign nationals are petitioners here. They allege that they or their family members were injured by terrorist attacks in the Middle East over a 10-year period. Two of the five lawsuits also included claims brought by American nationals under the Anti-Terrorism Act, 18 U. S. C. §2333(a), but those claims are not at issue.

Arab Bank is a major Jordanian financial institution with branches throughout the world, including in New York. According to the Kingdom of Jordan, Arab Bank “accounts for between one-fifth and one-third of the total market capitalization of the Amman Stock Exchange.” Brief for Hashemite Kingdom of Jordan as Amicus Curiae 2. Petitioners allege that Arab Bank helped finance attacks by Hamas and other terrorist groups. Among other claims, petitioners allege that Arab Bank maintained bank accounts for terrorists and their front groups and allowed the accounts to be used to pay the families of suicide bombers.

Most of petitioners’ allegations involve conduct that occurred in the Middle East. Yet petitioners allege as well that Arab Bank used its New York branch to clear dollar-denominated transactions through the Clearing House Interbank Payments System. That elaborate system is commonly referred to as CHIPS. It is alleged that some of these CHIPS transactions benefited terrorists.

“The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”  28 U.S.C. § 1350.

At a minimum, the relatively minor connection between the terrorist attacks at issue in this case and the alleged conduct in the United States well illustrates the perils of extending the scope of ATS liability to foreign multinational corporations like Arab Bank. For 13 years, this litigation has “caused significant diplomatic tensions” with Jordan, a critical ally in one of the world’s most sensitive regions.

The political branches can determine, referring to international law to the extent they deem proper, whether to impose liability for human-rights violations upon foreign corporations in this Nation’s courts, and, conversely, that courts in other countries should be able to hold United States corporations liable. Congress might determine that violations of international law do, or should, impose that liability to ensure that corporations make every effort to deter human-rights violations, and so that, even when those efforts cannot be faulted, compensation for injured persons will be a cost of doing business. If Congress and the Executive were to determine that corporations should be liable for violations of international law, that decision would have special power and force because it would be made by the branches most immediately responsive to, and accountable to, the electorate.

Digital Realty Trust v. Somers

Digital Realty Trust v. Somers, 2018 U.S. LEXIS 1377 (S. Ct. February 21, 2018) Ginsburg, J.  Endeavoring to root out corporate fraud, Congress passed the Sarbanes-Oxley Act of 2002, 116 Stat. 745 (Sarbanes-Oxley), and the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act, 124 Stat. 1376 (Dodd-Frank). Both Acts shield whistleblowers from retaliation, but they differ in important respects. Most notably, Sarbanes-Oxley applies to all “employees” who report misconduct to the Securities and Exchange Commission (SEC or Commission), any other federal agency, Congress, or an internal supervisor. 18 U. S. C. §1514A(a)(1). Dodd-Frank delineates a more circumscribed class; it defines “whistleblower” to mean a person who provides “information relating to a violation of the securities laws to the Commission.” 15 U. S. C. §78u– 6(a)(6). A whistleblower so defined is eligible for an award if original information he or she provides to the SEC leads to a successful enforcement action. §78u–6(b)–(g). Most relevant here, a whistleblower is protected from retaliation for, inter alia, “making disclosures that are required or protected under” Sarbanes-Oxley, the Securities Exchange Act of 1934, the criminal anti-retaliation proscription at 18 U. S. C. §1513(e), or any other law subject to the SEC’s jurisdiction. 15 U. S. C. §78u–6(h)(1)(A)(iii). The question presented: Does the anti-retaliation provision of Dodd-Frank extend to an individual who has not reported a violation of the securities laws to the SEC and therefore falls outside the Act’s definition of “whistleblower”? Pet. for Cert. (I). We answer that question “No”: To sue under Dodd-Frank’s anti-retaliation provision, a person must first “provid[e] . . . information relating to a violation of the securities laws to the Commission.” §78u–6(a)(6).

In sum, Dodd-Frank’s text and purpose leave no doubt that the term “whistleblower” in §78u–6(h) carries the meaning set forth in the section’s definitional provision. The disposition of this case is therefore evident: Somers did not provide information “to the Commission” before his termination, §78u–6(a)(6), so he did not qualify as a “whistleblower” at the time of the alleged retaliation. He is therefore ineligible to seek relief under §78u–6(h).

For the foregoing reasons, we find the statute’s definition of “whistleblower” clear and conclusive. Because “Congress has directly spoken to the precise question at issue,” Chevron, 467 U. S., at 842, we do not accord deference to the contrary view advanced by the SEC in Rule 21F–2. See 17 CFR §240.21F–2(b)(1); supra, at 6–7. The statute’s unambiguous whistleblower definition, in short, precludes the Commission from more expansively interpreting that term. See Burgess, 553 U. S., at 130.

The judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

CONSTITUTIONAL LAW-FOURTH AMENDMENT-PROBABLE CAUSE-ARREST OF PARTYGOERS

District of Columbia et al. v. Wesby, et al., 583 U.S. ___ (January 22, 2018) Thomas, J.  This case involves a civil suit against the District of Columbia and five of its police officers, brought by 16 individuals who were arrested for holding a raucous, late-night party in a house they did not have permission to enter. The United States Court of Appeals for the District of Columbia Circuit held that there was no probable cause to arrest the partygoers, and that the officers were not entitled to qualified immunity. We reverse on both grounds.

There is no dispute that the partygoers entered the house against the will of the owner. Nonetheless, the partygoers contend that the officers lacked probable cause to arrest them because the officers had no reason to believe that they “knew or should have known” their “entry was unwanted.” We disagree. Considering the totality of the circumstances, the officers made an “entirely reasonable inference” that the partygoers were knowingly taking advantage of a vacant house as a venue for their late-night party.

Taken together, the condition of the house and the conduct of the partygoers allowed the officers to make several “‘common-sense conclusions about human behavior.’” Most homeowners do not live in near-barren houses. And most homeowners do not invite people over to use their living room as a strip club, to have sex in their bedroom, to smoke marijuana inside, and to leave their floors filthy. The officers could thus infer that the partygoers knew their party was not authorized. The partygoers’ reaction to the officers gave them further reason to believe that the partygoers knew they lacked permission to be in the house. Many scattered at the sight of the uniformed officers. Two hid themselves, one in a closet and the other in a bathroom.  A reasonable officer could infer that the partygoers’ scattering and hiding was an indication that they knew they were not supposed to be there.

Viewing these circumstances as a whole, a reasonable officer could conclude that there was probable cause to believe the partygoers knew they did not have permission to be in the house.

For all of these reasons, we reverse the D. C. Circuit’s holding that the officers lacked probable cause to arrest. Accordingly, the District and its officers are entitled to summary judgment on all of the partygoers’ claims.

Even assuming the officers lacked actual probable cause to arrest the partygoers, the officers are entitled to qualified immunity because they “reasonably but mistakenly conclude[d] that probable cause [wa]s present.”  The officers were thus entitled to qualified immunity.

A reasonable officer, looking at the entire legal landscape at the time of the arrests, could have interpreted the law as permitting the arrests here. There was no controlling case holding that a bona fide belief of a right to enter defeats probable cause, that officers cannot infer a suspect’s guilty state of mind based on his conduct alone, or that officers must accept a suspect’s innocent explanation at face value. Indeed, several precedents suggested the opposite. The officers were thus entitled to summary judgment based on qualified immunity.

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

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 theory of liability.  We therefore reverse the district court’s grant of qualified immunity and remand for further proceedings.

CONSTITUTIONAL LAW-FIFTH AMENDMENT-EQUAL PROTECTION CLAUSE-POLITICAL PARTIES-SIGNATURE GATHERING REQUIREMENTS

Constitution Party of Pennsylvania, et al. v. Pedro A. Cortes, et al., No. 16-3266 (3rd Cir. December 13, 2017) Roth, C.J. This case deals with county based signature-gathering requirements for minor political party.  The case was sent back to the trial court by the Third Circuit to rule on the issue.  This is an equal protection clause challenge.  Signature-gathering requirements have fared poorly in the courts.  Many courts have held that a state’s county-based signature-gathering requirements are unconstitutional.  It is rarely if ever necessary to impose county-based signature requirements as significantly burdened voting rights.  Not all county-based signature-gathering requirements are sufficiently stringent to cause constitutional concern.  After reviewing all of the law, the court decided that the trial court in the first instance should determine whether Pennsylvania law passes muster.  The District Court can impose county-based signature-gathering requirements if it concludes that the requirements would have no appreciable impact on voting rights. The court did not so conclude here.

Barna v. Board of School Directors of the Panther Valley School District, 2017 U.S. App. LEXIS 24712 (3rd Cir. December 7, 2017) Chagares, C.J.

School board barred a citizen from attending meetings because of his disruptive, and at times even threatening, behavior.  The District Court threw out the citizen’s case based upon qualified immunity.  The District Court did find that there was a constitutional violation but granted qualified immunity to the individual school board members and the school board itself.  A timely appeal followed.

A defendant sued under § 1983 is entitled to qualified immunity “unless it is shown that the official violated a statutory or constitutional right that was ‘clearly established’ at the time of the challenged conduct.”  Plumhoff v. Rickard, 134 S.Ct. 2012, 2023 (2014), citing Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).  A right is “clearly established” for these purposes when its “contours…[are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.”  Wilson v. Layne, 526 U.S. 603, 615 (1999), citing Anderson v. Creighton, 483 U.S. 635, 640 (1987) and other cases.

In deciding whether a matter is clearly established, the courts first look for Supreme Court precedent.  There is no controlling authority from the Supreme Court or the Third Circuit.  However, temporary removal of a disruptive participant from a limited public forum like a school board meeting has been permitted.  The parties did not dispute that a school board meeting is a limited public forum.  The court concluded that based upon their review of the law, that according to the state of the law at the time of the events in question, there did not appear to be any consensus, much less a robust consensus, that the rights asserted by the citizen were clearly established.  Accordingly, the District Court’s grant of summary judgment in favor of the individual board members on the basis of qualified immunity was affirmed.

With respect to summary judgment on behalf of the board, the court spent most of its time discussing whether that issue had been waived.  There is no respondeat superior in municipal liability cases.  Under Monell, it must be a custom or policy that is unconstitutional which is the “moving force” behind the constitutional violation.  The court concluded that there are exceptional circumstances permitting review of the otherwise forfeited issue of the board’s entitlement to immunity.  The District Court erred in awarding qualified immunity to the board.  It therefore vacated the grant of summary judgment in favor of the board.  We take no position on the viability of the claims against the board.

CONSTITUTIONAL LAW-14TH AMENDMENT-DUE PROCESS-SUBSTANTIVE DUE PROCESS-COMMERCIAL DRIVER’S LICENSE DISQUALIFICATION

Shoul v. Commonwealth of Pennsylvania, No. 64 MAP 2015 (Pa. S.Ct. November 22, 2017) Todd, J.  Pennsylvania passed a statute § 1611 at 75 Pa.C.S. disqualifying for life any person who is convicted of using a motor vehicle in the commission of any felony involving the manufacture, distribution or dispensing of a controlled substance or possession with intent to manufacture, distribute or dispense a controlled substance.  There are no exceptions or reductions to this disqualification for life.  The lower court held this to be a violation of substantive due process and the Eighth Amendment prohibition of cruel and unusual punishment.  The Pennsylvania Supreme Court reversed.  The matter was sent back to the trial court to consider the harshness of the disqualification.  However, it was not automatically a violation of the Eighth Amendment, nor of substantive due process.  The question is not whether the statute bears a real and substantial relationship to persuading drug traffickers to minimize the amount of contraband they are carrying.  Rather, it is to persuade holders of CDLs to avoid drug trafficking altogether.  The court found that the legislation was free to conclude that it might.  Therefore, § 1611(e) does not violate the Pennsylvania constitutional right to substantive due process.  In terms of the Eighth Amendment, the court was wrong to automatically find that the statute violated the Eighth Amendment.  Rather, there needs to be a comprehensive exposition of the harshness of the statute’s application to the particular driver in question or the severity of his offense, or to weigh one against the other.

CONSTITUTIONAL LAW-14TH AMENDMENT-DUE PROCESS-SUBSTANTIVE DUE PROCESS-TAXICAB REGULATION

Germantown Cab Co. v. Phila. Parking Auth. Appeal Servs., 2017 Pa. Commw. LEXIS 699 (September 13, 2017) Brobson, J. In these consolidated appeals, Appellants Bucks County Services, Inc. (BCS) and Germantown Cab Company (GCC) (collectively, Appellants) appeal from the order of the Court of Common Pleas of Philadelphia County (common pleas), dated November 2, 2016. Common pleas denied Appellants’ appeal and affirmed the decision of the Philadelphia Parking Authority (Authority), upholding the Authority’s annual assessments for fiscal year 2015 imposed upon Appellants pursuant to Section 5707 of the Parking Authorities Law (Law). For the reasons set forth below, we reverse.

This case involves the latest of many legal challenges to the Authority’s regulation of taxicab operations in the City of Philadelphia (City).

Imposing a per taxicab assessment on a fleet of partial rights taxicabs without any confirmation that each partial rights taxicab within such fleet could or did operate within the City on the same level as a medallion taxicab is arbitrary and unreasonable. In crafting a reasonable assessment scheme, in addition to correcting the deficiencies noted above, the General Assembly must take into consideration that partial rights taxicabs are fleet-authorized and have restricted “in service” territories. Otherwise, partial rights taxicabs are potentially responsible for more than their proportionate share of the costs of taxicab regulation within the City.

For these reasons, the assessment scheme set forth in Section 5707(c) of the Law is arbitrary and unreasonable and lacks any real and substantial relation to the goal of regulating taxicab service within the City for the benefit of the public. It, therefore, violates Appellants’ rights to substantive due process. For these reasons, we must conclude that Section 5707(c) of the Law is facially unconstitutional.

Thus, we conclude that Section 5707 of the Law is an unconstitutional delegation of legislative power.

CONSTITUTIONAL LAW-FIFTH AMENDMENT-TAKINGS CLAUSE-REGULATORY STRUCTURE

Murr v. Wisconsin, 2017 U.S. LEXIS 4046 (June 23, 2017) Kennedy, J. The classic example of a property taking by the government is when the property has been occupied or otherwise seized. In the case now before the Court, petitioners contend that governmental entities took their real property—an undeveloped residential lot—not by some physical occupation but instead by enacting burdensome regulations that forbid its improvement or separate sale because it is classified as substandard in size. The relevant governmental entities are the respondents. Against the background justifications for the challenged restrictions, respondents contend there is no regulatory taking because petitioners own an adjacent lot. The regulations, in effecting a merger of the property, permit the continued residential use of the property including for a single improvement to extend over both lots. This retained right of the landowner, respondents urge, is of sufficient offsetting value that the regulation is not severe enough to be a regulatory taking. To resolve the issue whether the landowners can insist on confining the analysis just to the lot in question, without regard to their ownership of the adjacent lot, it is necessary to discuss the background principles that define regulatory takings. This case presents a question that is linked to the ultimate determination whether a regulatory taking has occurred: What is the proper unit of property against which to assess the effect of the challenged governmental action? Put another way, “[b]ecause our test for regulatory taking requires us to compare the value that has been taken from the property with the value that remains in the property, one of the critical questions is determining how to define the unit of property ‘whose value is to furnish the denominator of the fraction.’” Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S. 470, 497 (1987) (quoting Michelman, Property, Utility, and Fairness, 80 Harv. L. Rev. 1165, 1992 (1967)). As the foregoing discussion makes clear, no single consideration can supply the exclusive test for determining the denominator. Instead, courts must consider a number of factors. These include the treatment of the land under state and local law; the physical characteristics of the land; and the prospective value of the regulated land. The Opinion of the Court endeavor should determine whether reasonable expectations about property ownership would lead a landowner to anticipate that his holdings would be treated as one parcel, or, instead, as separate tracts. The inquiry is objective, and the reasonable expectations at issue derive from background customs and the whole of our legal tradition. Cf. Lucas, 505 U. S., at 1035 (KENNEDY, J., concurring) (“The expectations protected by the Constitution are based on objective rules and customs that can be understood as reasonable by all parties involved”). Considering petitioners’ property as a whole, the state court was correct to conclude that petitioners cannot establish a compensable taking in these circumstances. Petitioners have not suffered a taking under Lucas, as they have not been deprived of all economically beneficial use of their property. See 505 U. S., at 1019. They can use the property for residential purposes, including an enhanced, larger residential improvement. See Palazzolo, 533 U. S., at 631 (“A regulation permitting a landowner to build a substantial residence . . . does not leave the property ‘economically idle’”). The property has not lost all economic value, as its value has decreased by less than 10 percent. See Lucas, supra, at 1019, n. 8 (suggesting that even a landowner with 95 percent loss may not recover). Petitioners furthermore have not suffered a taking under the more general test of Penn Central. See 438 U. S., at 124. The expert appraisal relied upon by the state courts refutes any claim that the economic impact of the regulation is severe. Petitioners cannot claim that they reasonably expected to sell or develop their lots separately given the regulations which predated their acquisition of both lots. Finally, the governmental action was a reasonable land-use regulation, enacted as part of a coordinated federal, state, and local effort to preserve the river and surrounding land.

CONSTITUTIONAL LAW-4TH AMENDMENT-SEARCH AND SEIZURE-DETAINEES

Ziglar v. Abbasi, 2017 U.S. LEXIS 3874, 582 U.S. ___ (June 19, 2017) Kennedy, J.  Respondents were among some 84 aliens who were subject to the hold-until-cleared policy and detained at the Metropolitan Detention Center (MDC) in Brooklyn, New York. They were held in the Administrative Maximum Special Housing Unit (or Unit) of the MDC. The complaint includes these allegations: Conditions in the Unit were harsh. Pursuant to official Bureau of Prisons policy, detainees were held in “‘tiny cells for over 23 hours a day.’” 789 F. 3d, at 228. Lights in the cells were left on 24 hours. Detainees had little opportunity for exercise or recreation. They were forbidden to keep anything in their cells, even basic hygiene products such as soap or a toothbrush. When removed from the cells for any reason, they were shackled and escorted by four guards. They were denied access to most forms of communication with the outside world. And they were strip searched often—any time they were moved, as well as at random in their cells. Some of the harsh conditions in the Unit were not imposed pursuant to official policy. According to the complaint, prison guards engaged in a pattern of “physical and verbal abuse.” Ibid. Guards allegedly slammed detainees into walls; twisted their arms, wrists, and fingers; broke their bones; referred to them as terrorists; threatened them with violence; subjected them to humiliating sexual comments; and insulted their religion. Respondents are six men of Arab or South Asian descent. Five are Muslims. Each was illegally in this country, arrested during the course of the September 11 investigation, and detained in the Administrative Maximum Special Housing Unit for periods ranging from three to eight months. After being released respondents were removed from the United States. Respondents then sued on their own behalf, and on behalf of a putative class, seeking compensatory and punitive damages, attorney’s fees, and costs. Respondents, it seems fair to conclude from the arguments presented, acknowledge that in the ordinary course aliens who are present in the United States without legal authorization can be detained for some period of time. But here the challenge is to the conditions of their confinement and the reasons or motives for imposing those conditions. The gravamen of their claims was that the Government had no reason to suspect them of any connection to terrorism, and thus had no legitimate reason to hold them for so long in these harsh conditions. The proper test for determining whether a case presents a new Bivens context is as follows. If the case is different in a meaningful way from previous Bivens cases decided by this Court, then the context is new. Without endeavoring to create an exhaustive list of differences that are meaningful enough to make a given context a new one, some examples might prove instructive. A case might differ in a meaningful way because of the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider. In the present suit, respondents’ detention policy claims challenge the confinement conditions imposed on illegal aliens pursuant to a high-level executive policy created in the wake of a major terrorist attack on American soil. Those claims bear little resemblance to the three Bivens claims the Court has approved in the past: a claim against FBI agents for handcuffing a man in his own home without a warrant; a claim against a Congressman for firing his female secretary; and a claim against prison officials for failure to treat an inmate’s asthma. See Bivens, 403 U. S. 388; Davis, 442 U. S. 228; Chappell, 462 U. S. 296. The Court of Appeals therefore should have held that this was a new Bivens context. Had it done so, it would have recognized that a special factors analysis was required before allowing this damages suit to proceed. After considering the special factors necessarily implicated by the detention policy claims, the Court now holds that those factors show that whether a damages action should be allowed is a decision for the Congress to make, not the courts.  There is a persisting concern, of course, that absent a Bivens remedy there will be insufficient deterrence to prevent officers from violating the Constitution. In circumstances like those presented here, however, the stakes on both sides of the argument are far higher than in past cases the Court has considered. If Bivens liability were to be imposed, high officers who face personal liability for damages might refrain from taking urgent and lawful action in a time of crisis. And, as already noted, the costs and difficulties of later litigation might intrude upon and interfere with the proper exercise of their office. On the other side of the balance, the very fact that some executive actions have the sweeping potential to affect the liberty of so many is a reason to consider proper means to impose restraint and to provide some redress from injury. There is therefore a balance to be struck, in situations like this one, between deterring constitutional violations and freeing high officials to make the lawful decisions necessary to protect the Nation in times of great peril. Cf. Stanley, supra, at 681 (noting that the special-factors analysis in that case turned on “how much occasional, unintended impairment of military discipline one is willing to tolerate”). The proper balance is one for the Congress, not the Judiciary, to undertake. For all of these reasons, the Court of Appeals erred by allowing respondents’ detention policy claims to proceed under Bivens. The differences between this claim and the one in Carlson [446 U.S. 14]  are perhaps small, at least in practical terms. Given this Court’s expressed caution about extending the Bivens remedy, however, the new-context inquiry is easily satisfied. Some differences, of course, will be so trivial that they will not suffice to create a new Bivens context. But here the differences identified above are at the very least meaningful ones. Thus, before allowing this claim to proceed under Bivens, the Court of Appeals should have performed a special factors analysis. It should have analyzed whether there were alternative remedies available or other “sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy” in a suit like this one. Supra, at 15. One issue remains to be addressed: the claim that petitioners are subject to liability for civil conspiracy under 42 U. S. C. §1985(3). Unlike the prisoner abuse claim just discussed, this claim implicates the activities of all the petitioners—the Executive Officials as well as the Wardens—in creating the conditions of confinement at issue here. In light of these concerns, the Court has held that qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U. S. 335, 341 (1986). To determine whether a given officer falls into either of those two categories, a court must ask whether it would have been clear to a reasonable officer that the alleged conduct “was unlawful in the situation he confronted.” Saucier, supra, at 202. If so, then the defendant officer must have been either incompetent or else a knowing violator of the law, and thus not entitled to qualified immunity. If not, however—i.e., if a reasonable officer might not have known for certain that the conduct was unlawful—then the officer is immune from liability. Under these principles, it must be concluded that reasonable officials in petitioners’ positions would not have known, and could not have predicted, that §1985(3) prohibited their joint consultations and the resulting policies that caused the injuries alleged. These considerations suggest that officials employed by the same governmental department do not conspire when they speak to one another and work together in their official capacities. Whether that contention should prevail need not be decided here. It suffices to say that the question is sufficiently open so that the officials in this suit could not be certain that §1985(3) was applicable to their discussions and actions. Thus, the law respondents seek to invoke cannot be clearly established. It follows that reasonable officers in petitioners’ positions would not have known with any certainty that the alleged agreements were forbidden by law. See Saucier, 533 U. S., at 202. Petitioners are entitled to qualified immunity with respect to the claims under 42 U. S. C. §1985(3). Instead, the question with respect to the Bivens claims is whether to allow an action for money damages in the absence of congressional authorization. For the reasons given above, the Court answers that question in the negative as to the detention policy claims. As to the prisoner abuse claim, because the briefs have not concentrated on that issue, the Court remands to allow the Court of Appeals to consider the claim in light of the Bivens analysis set forth above. The question with respect to the §1985(3) claim is whether a reasonable officer in petitioners’ position would have known the alleged conduct was an unlawful conspiracy. For the reasons given above, the Court answers that question, too, in the negative. The judgment of the Court of Appeals is reversed as to all of the claims except the prisoner abuse claim against Warden Hasty. The judgment of the Court of Appeals with respect to that claim is vacated, and that case is remanded for further proceedings. It is so ordered. JUSTICE SOTOMAYOR, JUSTICE KAGAN, and JUSTICE GORSUCH took no part in the consideration or decision of these cases.

Free Exercise Clause of The First Amendment

Trinity Lutheran Church of Columbia v. Comer, 2017 U.S. LEXIS 4061 (S. Ct. June 26, 2017).  The Trinity Lutheran Church Child Learning Center is a Missouri preschool and daycare center. Originally established as a nonprofit organization, the Center later merged with Trinity Lutheran Church and now operates under its auspices on church property. Among the facilities at the Center is a playground, which has a coarse pea gravel surface beneath much of the play equipment. In 2012, the Center sought to replace a large portion of the pea gravel with a pour-in-place rubber surface by participating in Missouri’s Scrap Tire Program. The program, run by the State’s Department of Natural Resources, offers reimbursement grants to qualifying nonprofit organizations that install playground surfaces made from recycled tires. The Department had a strict and express policy of denying grants to any applicant owned or controlled by a church, sect, or other religious entity. Pursuant to that policy, the Department denied the Center’s application. In a letter rejecting that application, the Department explained that under Article I, Section 7 of the Missouri Constitution, the Department could not provide financial assistance directly to a church. The Department ultimately awarded 14 grants as part of the 2012 program. Although the Center ranked fifth out of the 44 applicants, it did not receive a grant because it is a church.

Trinity Lutheran sued in Federal District Court, alleging that the Department’s failure to approve its application violated the Free Exercise Clause of the First Amendment. The District Court dismissed the suit. The Free Exercise Clause, the court stated, prohibits the government from outlawing or restricting the exercise of a religious practice, but it generally does not prohibit withholding an affirmative benefit on account of religion. The District Court likened the case before it to Lockev. Davey, 540 U. S. 712 , where this Court upheld against a free exercise challenge a State’s decision not to fund degrees in devotional theology as part of a scholarship program. The District Court held that the Free Exercise Clause did not require the State to make funds available under the Scrap Tire Program to Trinity Lutheran. A divided panel of the Eighth Circuit affirmed. The fact that the State could award a scrap tire grant to Trinity Lutheran without running afoul of the Establishment Clause of the Federal Constitution, the court ruled, did not mean that the Free Exercise Clause compelled the State to disregard the broader antiestablishment principle reflected in its own Constitution.

Held: The Department’s policy violated the rights of Trinity Lutheran under the Free Exercise Clause of the First Amendment by denying the Church an otherwise available public benefit on account of its religious status.

The court answered that it would be a violation of the church’s rights under the free exercise clause of the First Amendment.

CHIEF JUSTICE ROBERTS delivered the opinion of the Court, except as to footnote 3. The Missouri Department of Natural Resources offers state grants to help public and private schools, nonprofit daycare centers, and other nonprofit entities purchase rubber playground surfaces made from recycled tires. Trinity Lutheran Church applied for such a grant for its preschool and daycare center and would have received one, but for the fact that Trinity Lutheran is a church. The Department had a policy of categorically disqualifying churches and other religious organizations from receiving grants under its playground resurfacing program. The question presented is whether the Department’s policy violated the rights of Trinity Lutheran under the Free Exercise Clause of the First Amendment.

First Amendment Free Exercise Clause

The First Amendment provides, in part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The parties agree that the Establishment Clause of that Amendment does not prevent Missouri from including Trinity Lutheran in the Scrap Tire Program. That does not, however, answer the question under the Free Exercise Clause, because we have recognized that there is “play in the joints” between what the Establishment Clause permits and the Free Exercise Clause compels. Locke, 540 U. S., at 718 (internal quotation marks omitted). The Free Exercise Clause “protect[s] religious observers against unequal treatment” and subjects to the strictest scrutiny laws that target the religious for “special disabilities” based on their “religious status.” Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 533, 542 (1993) (internal quotation marks omitted). Applying that basic principle, this Court has repeatedly confirmed that denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest “of the highest order.” McDaniel v. Paty, 435 U. S. 618, 628 (1978) (plurality opinion) (quoting Wisconsin v. Yoder, 406 U. S. 205, 215 (1972)).

The Department’s policy expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character. If the cases just described make one thing clear, it is that such a policy imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny. Lukumi, 508 U. S., at 546. This conclusion is unremarkable in light of our prior decisions.

The State has pursued its preferred policy to the point of expressly denying a qualified religious entity a public benefit solely because of its religious character. Under our precedents, that goes too far. The Department’s policy violates the Free Exercise Clause.

CONSTITUTIONAL LAW-PENNSYLVANIA CONSTITUTION – ENVIRONMENTAL AMENDMENT

Pennsylvania Environmental Defense Foundation v. Commonwealth, 2017 Pa. LEXIS 1393 (S. Ct. June 20, 2017) Donohue, J.  In this case, we examine the contours of the Environmental Rights Amendment in light of a declaratory judgment action brought by the Pennsylvania Environmental Defense Foundation (“Foundation”), an environmental advocacy entity, challenging, inter alia, the constitutionality of statutory enactments relating to funds generated from the leasing of state forest and park lands for oil and gas exploration and extraction. Because state parks and forests, including the oil and gas minerals therein, are part of the corpus of Pennsylvania’s environmental public trust, we hold that the Commonwealth, as trustee, must manage them according to the plain language of Section 27, which imposes fiduciary duties consistent with Pennsylvania trust law. We further find that the constitutional language controls how the Commonwealth may dispose of any proceeds generated from the sale of its public natural resources. After review, we reverse in part, and vacate and remand in part, the Commonwealth Court’s order granting summary relief to   the Commonwealth and denying the Foundation’s application for summary relief. Instead, when reviewing challenges to the constitutionality of Commonwealth actions under Section 27, the proper standard of judicial review lies in the text of Article I, Section 27 itself as well as the underlying principles of Pennsylvania trust law in effect at the time of its enactment. We must therefore carefully examine the contours of the Environmental Rights Amendment to identify the rights of the people and the obligations of the Commonwealth guaranteed thereunder.  Accordingly, the Environmental Rights Amendment mandates that the Commonwealth, as a trustee, “conserve and maintain” our public natural resources in furtherance of the people’s specifically enumerated rights. Thus understood in context of the entire amendment, the phrase “for the benefit of all the people” is unambiguous and clearly indicates that assets of the trust are to be used for conservation and maintenance purposes. Only within those parameters, clearly set forth in the text of Section 27, does the General Assembly, or any other Commonwealth entity, have discretion to determine the public benefit to which trust proceeds – generated from the sale of trust assets – are directed.  On remand, the parties should be given the opportunity to develop arguments concerning the proper classification, pursuant to trust law, of any payments called “rental payments” under the lease terms. To the extent such payments are consideration for the oil and gas that is extracted, they are proceeds from the sale of trust principal and remain in the corpus. These proceeds remain in the trust and must be devoted to the conservation and maintenance of our public natural resources, consistent with the plain language of Section 27.  Accordingly, we re-affirm our prior pronouncements that the public trust provisions of Section 27 are self-executing.  We hold, therefore, that sections 1602-E and 1603-E, relating to royalties, are facially unconstitutional. They plainly ignore the Commonwealth’s constitutionally imposed fiduciary duty to manage the corpus of the environmental public trust for the benefit of the people to accomplish its purpose – conserving and maintaining the corpus by, inter alia, preventing and remedying the degradation, diminution and depletion of our public natural resources.  Having established, to the contrary, that all proceeds from the sale of our public natural resources are part of the corpus of our environmental public trust and that the Commonwealth must manage the entire corpus according to its fiduciary obligations as trustee, the Commonwealth Court’s decision cannot stand.  As described herein, the legislature violates Section 27 when it diverts proceeds from oil and gas development to a non-trust purpose without exercising its fiduciary duties as trustee. The DCNR is not the only agency committed to conserving and maintaining our public natural resources, and the General Assembly would not run afoul of the constitution by appropriating trust funds to some other initiative or agency dedicated to effectuating Section 27. By the same token, the Lease Fund is not a constitutional trust fund and need not be the exclusive repository for proceeds from oil and gas development. However, if proceeds are moved to the General Fund, an accounting is likely necessary to ensure that the funds are ultimately used in accordance with the trustee’s obligation to conserve and maintain our natural resources.

CONSTITUTIONAL LAW-FOURTH AMENDMENT-SEARCH AND SEIZURE

Knick v. Township of Scott, 2017 U.S. App. LEXIS 12052 (3rd Cir. July 6, 2017) Smith, J. On December 20, 2012, the Township of Scott in Lackawanna County, Pennsylvania enacted an ordinance regulating cemeteries. The ordinance authorizes officials to enter upon any property within the Township to determine the existence and location of any cemetery. The ordinance also compels property owners to hold their private cemeteries open to the public during daylight hours. The plaintiff, Rose Mary Knick, challenges the ordinance on two grounds. First, Knick argues that the ordinance authorizes unrestrained searches of private property in violation of the Fourth Amendment. Second, Knick argues that the ordinance takes private property without just compensation in violation of the Fifth Amendment.

The Township’s ordinance is extraordinary and constitutionally suspect. However, important justiciability considerations preclude us from reaching the merits. Because Knick concedes that her Fourth Amendment rights were not violated and fails to demonstrate that they imminently will be, Knick lacks standing to advance her Fourth Amendment challenge. And as the District Court correctly held, Knick’s Fifth Amendment claims are not ripe until she has sought and been denied just compensation using Pennsylvania’s inverse-condemnation procedures, as required by the Supreme Court’s decision in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985). We will therefore affirm.

CONSTITUTIONAL LAW-FIRST AMENDMENT-PENUMBRAL RIGHTS-RIGHT OF ACCESS TO INFORMATION ABOUT HOW PUBLIC SERVANTS OPERATE IN PUBLIC

Fields v. City of Philadelphia, 2017 U.S. App. LEXIS 12159 (July 7, 2017) Ambro, C.J.  This case involves retaliation. Richard Fields and Amanda Geraci attempted to record Philadelphia police officers carrying out official duties in public and were retaliated against even though the Philadelphia Police Department’s official policies recognized that “[p]rivate individuals [*4] have a First Amendment right to observe and record police officers engaged in the public discharge of their duties.” J.A. 1187. No party contested the existence of the First Amendment right. Yet the District Court concluded that neither Plaintiff had engaged in First Amendment activity because the conduct—the act of recording—was not sufficiently expressive. However, this case is not about whether Plaintiffs expressed themselves through conduct. It is whether they have a First Amendment right of access to information about how our public servants operate in public.

Every Circuit Court of Appeals to address this issue (First, Fifth, Seventh, Ninth, and Eleventh) has held that there is a First Amendment right to record police activity in public. See Turner v. Lieutenant Driver, 848 F.3d 678 (5th Cir. 2017); Gericke v. Begin, 753 F.3d 1 (1st Cir. 2014); Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583 (7th Cir. 2012); Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000); Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995). Today we join this growing consensus. Simply put, the First Amendment protects the act of photographing, filming, or otherwise recording police officers conducting their official duties in public.

CONSTITUTIONAL LAW-FIRST AMENDMENT-RETALIATION

Oliver v. Roquet, 2017 U.S. App. LEXIS 9017 (May 24, 2017) Krause, C.J.  A state-employed medical professional charged with assessing the clinical progress of a civilly committed sexually violent predator considered this detainee’s First Amendment activities in connection with her recommendation that he not advance to the next phase of his treatment program. On interlocutory appeal, we are asked to determine whether the medical professional has qualified immunity from the resulting First Amendment retaliation claim. Because the detainee has pleaded facts reflecting that the medical professional based her recommendation on the medically relevant collateral consequences of his protected activity, but has not sufficiently pleaded that the recommendation was based on the protected activity itself, the detainee has not alleged the necessary causation to state a prima facie case of retaliation. Accordingly, we will reverse and remand.  We recognize there may be cases where a medical report purporting to focus only on the collateral consequences of a detainee’s First Amendment activity could be sufficient to establish a prima facie case of retaliation plaintiff where the plaintiff is able to plead “consideration plus,”—i.e., where, in addition to consideration of the protected activity by way of its association with medically relevant conduct, there are specific factual allegations supporting an inference that the adverse action was based on the protected activity itself. For example, a prima facie case might be established if there were specific factual allegations suggesting that the collateral consequences were fabricated, that the defendant had communicated anger or frustration with the protected activity itself or had threatened to take action against the plaintiff, or that the collateral consequences relied upon were irrelevant to the medical judgment in question.

CONSTITUTIONAL LAW-DUE PROCESS-SUBSTANTIVE DUE PROCESS-SEGREGATION IN PRISON

Yusef Steele v. Warden Cicchi, et al., 14-3127 (3rd Cir. May 3, 2017) Restrepo, C.J.  Plaintiff/Appellant Yusef Steele was a pretrial detainee housed at the Middlesex County Adult Correction Center (“MCACC”) in New Jersey in late 2008 and early 2009. During the course of his detention at MCACC, officials at the facility received credible information that Steele was involved in a scheme with an outside bail bonds service, Speedy Bail Bonds. Officials believed that Steele was threatening other detainees in order to coerce them into using Speedy and that 4 Steele was receiving some form of compensation from Speedy for his efforts. After interviewing Steele and advising him of the allegations against him, officials placed him in administrative segregation while they continued to investigate his conduct. During his time in segregation, Steele’s telephone privileges were restricted to legal calls only. Steele claims in this Section 1983 suit that the Defendant/Appellee MCACC officials violated his due process rights when they transferred him to administrative segregation in the facility and restricted his phone privileges, which interfered with his ability to attempt to find a co-signer for his own bail. The District Court granted summary judgment for all Defendants. For the reasons that follow, we will affirm.

CONSTITUTIONAL LAW-8TH AMENDMENT-SUICIDE-DELIBERATE INDIFFERENCE

Palakovic v. Wetzel, No. 16-2726 (3rd Cir. April 14, 2017) Smith, C.J.  Brandon Palakovic, a mentally ill young man who was imprisoned at the State Correctional Institution at Cresson, Pennsylvania (SCI Cresson), committed suicide after repeatedly being placed in solitary confinement. His parents, Renee and Darian Palakovic, brought this civil rights action after their son’s death. The District Court dismissed the family’s Eighth Amendment claims against prison officials and medical personnel for failure to state a claim upon which relief can be granted. We write today to clarify and elaborate upon the legal principles that apply to Eighth Amendment claims arising out of prison suicides. For the reasons that follow, we will vacate the District Court’s dismissals.

In sum, our case law teaches that, when a plaintiff seeks to hold a prison official liable for failing to prevent a detainee’s suicide, a pre-trial detainee may bring a claim under the Due Process Clause of the Fourteenth Amendment that is essentially equivalent to the claim that a prisoner may bring under the Eighth Amendment. Thus, whether a pre-trial detainee or a convicted prisoner, a plaintiff must show: (1) that the individual had a particular vulnerability to suicide, meaning that there was a “strong likelihood, rather than a mere possibility,” that a suicide would be attempted; (2) that the prison official knew or should have known of the individual’s particular vulnerability; and (3) that the official acted with reckless or deliberate indifference, meaning something beyond mere negligence, to the individual’s particular vulnerability. We must now consider the application of these principles, where appropriate, to Brandon Palakovic’s circumstances.

Considering these factual allegations in light of the increasingly obvious reality that extended stays in solitary confinement can cause serious damage to mental health, we view these allegations as more than sufficient to state a plausible claim that Brandon experienced inhumane conditions of confinement to which the prison officials—Wetzel, Cameron, Boyles, Luther, and Harrington—were deliberately indifferent. We therefore conclude that the District Court should have allowed this claim to proceed to discovery.

Despite receiving some minimal care, Brandon received mental health treatment while at SCI Cresson that fell below constitutionally adequate standards, and the defendants—both the mental healthcare personnel providing treatment and the supervisory officials and medical corporation responsible for the prison’s mental healthcare treatment policies—were deliberately indifferent to Brandon’s serious medical needs. Thus, this claim, too, should have survived dismissal.

Despite knowing of Brandon’s vulnerability and the increased risk of suicide that solitary confinement brings, the defendants disregarded that risk and permitted Brandon to be repeatedly isolated in solitary confinement anyway. That is sufficient to satisfy the plausibility standard and proceed to discovery on the vulnerability to suicide claims as to defendants Harrington, Rathore, Eidsvoog, Boyles, and Luther.

The Palakovics alleged that MHM’s policies of understaffing and failing to provide proper treatment resulted in Brandon’s isolation, untreated mental illness, and eventual suicide. At the motion to dismiss stage, these allegations are sufficient to proceed to discovery. Absent discovery, the Palakovics could not possibly have any greater insight into MHM’s exact policies or their impact on Brandon.

According to the Palakovics, the supervisors were responsible for the policies concerning the treatment of mentally ill prisoners that gave rise to an unreasonable risk of Brandon’s suicide, as well as the failure to provide specific types of training that could reasonably have prevented it. We must take the factual allegations of the amended complaint as true, and those facts are sufficient to support claims against the supervisory defendants.

Based on the foregoing, we conclude that the Palakovics properly pleaded claims under the Eighth Amendment in both their original and amended complaints. Accordingly, we will vacate the District Court’s dismissal orders entered on June 26, 2015, and February 22, 2016, and will remand this matter to the District Court for further proceedings. On remand, the District Court should permit the Palakovics to file a second amended complaint setting forth their Eighth Amendment claims concerning conditions of confinement, inadequate mental healthcare, vulnerability to suicide, and failure to train.

CONSTITUTIONAL LAW-8TH AMENDMENT-OVER-DETENTION STANDARD

Wharton v. Danberg, No. 16-1988 (3rd Cir. April 19, 2017) Greenaway, C.J.  The class action claim that Delaware correctional system routinely failed to release inmates in a timely manner, holding them for days or weeks beyond when they should be set free.  Top officials were sued.  The District Court granted summary judgment in favor of some of those top officials and the Third Circuit affirmed throwing out the case.  This litigation addressed whether things got better or worse.  The court said that over-detention standards are based upon 8th Amendment and 14th Amendment substantive due process.  The court found that the supervisory liability, footnote 10 of the opinion, did not apply here.  Deliberate indifference is a flexible standard.  Operating a prison system is a major bureaucratic undertaking.  Room must be left for imperfection and accidents.  The 8th Amendment also did not avail the inmates.  The facts weighed heavily against reasonable finding of deliberate indifference.

CONSTITUTIONAL LAW-14TH AMENDMENT-DUE PROCESS-PROPERTY-CRIMINAL ACQUITTAL

Nelson v. Colorado, 581 U.S. ___ (April 19, 2017) Ginsburg, J.  When a criminal conviction is invalidated by a reviewing court and no retrial will occur, is the State obliged to refund fees, court costs, and restitution exacted from the defendant upon, and as a consequence of, the conviction? Our answer is yes. Absent conviction of a crime, one is presumed innocent. Under the Colorado law before us in these cases, however, the State retains conviction-related assessments unless and until the prevailing defendant institutes a discrete civil proceeding and proves her innocence by clear and convincing evidence. This scheme, we hold, offends the Fourteenth Amendment’s guarantee of due process.

CONSTITUTIONAL LAW-FIRST AMENDMENT-SPEECH-COMMERCIAL SPEECH

Expressions Hair Design v. Schneiderman, 2017 U.S. LEXIS 2186, No. 15-1391 (S. Ct. March 29, 2017) Roberts, C.J.  Each time a customer pays for an item with a credit card, the merchant selling that item must pay a transaction fee to the credit card issuer.  Some merchants balk at paying the fees and want to discourage the use of credit cards, or at least pass on the fees to customers who use them.  One method of achieving those ends is through differential pricing – charging credit card users more than customers using cash.  Merchants who wish to employ differential pricing may do so in two ways relevant here:  Impose a surcharge for the use of a credit card, or offer a discount for the use of cash.  In N. Y. Gen. Bus. Law § 518, New York has banned the former practice.  The question presented is whether § 518 regulates merchants’ speech and – if so – whether the statute violates the First Amendment.  We conclude that § 518 does regulate speech and remand for the Court of Appeals to determine in the first instance whether that regulation is unconstitutional.

CONSTITUTIONAL LAW-14TH AMENDMENT-DUE PROCESS-SUBSTANTIVE DUE PROCESS-CHILD ABUSE REPORT

Plaintiff sued daycare alleging defendant Tioga County and Tioga County Department of Human Services violated 14th Amendment rights to substantive due process by wrongfully filed a child abuse claim against her causing the revocation of her childcare license.  Defendants moved to dismiss.  Judge Christopher C. Connor denied the motion.  The court discussed Monell liability.  A custom or policy of the entity must be identified as being improper.  The plaintiff claimed that Tioga County engaged in a custom, policy or practice whereby it arbitrarily issues indicated reports of physical abuse based solely on preliminary conjecture without a thorough investigation.  The plaintiff plausibly alleges noncompliance with legal requirements in child abuse investigations as being routine in Tioga County.  This is an unofficial custom, it is alleged.  Cimorelli v. Tioga County, 2017 U.S. District LEXIS 19023 (February 10, 2017).

CONSTITUTIONAL LAW-14TH AMENDMENT-DUE PROCESS-SUBSTANTIVE DUE PROCESS-GRANDPARENTS’ CUSTODY

D.P. v. G.J.P., 146 A.3d 204 (Pa. 2016) Chief Justice Saylor.  This is a direct appeal from a common pleas court order invalidating a statutory provision giving grandparents standing to seek custody of their minor grandchildren.  The question presented is whether the parents’ fundamental rights are violated by the conferral of standing based solely on a parental separation lasting at least six months.  We conclude that the fact of a parental separation for six months or more does not render the state’s parens patriae interest sufficiently pressing to justify potentially disturbing the decision of presumptively fit parents concerning the individuals with whom their minor children should associate.  It follows that the infringement upon parental rights worked by Section 5325 is not narrowly tailored to a compelling governmental interest, as the provision could have been drafted to exclude separation as an independent basis for grandparent standing.

The court severed the statute and found the remainder of the law constitutional.

CONSTITUTIONAL LAW-FOURTH AMENDMENT-EXCESSIVE FORCE

Johnson v. City of Philadelphia, 837 F.3d 343 (3rd Cir. 2016).  FUENTES, Circuit Judge: Kenyado Newsuan was standing in the street, naked, high on PCP, and yelling and flailing his arms. Philadelphia police officer Thomas Dempsey arrived on the scene and, without waiting for backup, ordered Newsuan to approach. What happened next is a matter of some dispute, but what happened at the end of the encounter is not: Newsuan attacked Dempsey, slammed him into multiple cars, and tried to remove Dempsey’s handgun. At that point, Dempsey shot and killed Newsuan. 3 The administratrix of Newsuan’s estate sued Dempsey and the City of Philadelphia under 42 U.S.C. § 1983 for using unconstitutionally excessive force. The District Court granted summary judgment to the defendants. On appeal, Plaintiff argues that the shooting was unreasonable under the Fourth Amendment because Dempsey unnecessarily initiated a one-on-one confrontation with Newsuan that led to the subsequent fatal altercation. Whatever the merits of that liability theory in the abstract, we conclude that Newsuan’s violent attack on officer Dempsey was a superseding cause that severed any causal link between Dempsey’s initial actions and his subsequent justified use of lethal force. We will therefore affirm.

Curry v. Yachera, 835 F.3d 373 (3rd Cir. 2016)

Man arrested for retail theft, Curry, was sent to jail and waited three months for his case to proceed.  He was innocent.  The trial court dismissed the case and the Third Circuit affirmed with its own spin.  The court pointed out the inequality bail can create in criminal proceedings.  Nevertheless the court found no constitutional issue.  The malicious prosecution claims were dismissed without prejudice.  There was a constitutional claim of malicious prosecution that have been made by the plaintiff.  To prove a Fourth Amendment malicious prosecution claim a plaintiff must show the following:  (1) the defendant initiated a criminal proceeding; (2) the criminal proceeding ended in his favor; (3) the defendant initiated the proceeding without probable cause; (4) the defendant acted maliciously or for a purpose other than bringing the plaintiff to justice; and (5) the plaintiff suffered deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding.  The district court dismissed the malicious prosecution claim because a fifth element cannot be met and the appellate court agreed with that ruling.  The malicious prosecution claim against some of the actors may be brought again in the trial court.

Black v. Montgomery County, 835 F.3d 358 (3d Cir. 2016)

Michele Black filed a lawsuit claiming that various local officials maliciously prosecuted her in violation of the Fourteenth Amendment.  She was acquitted at trial.  The court held that the lower court order throwing the case out should be reversed.  Black has sufficiently alleged that her liberty was intentionally restrained by defendants.  Accordingly the court vacated the district court’s determination that she was not seized as is required for a Fourth Amendment malicious prosection claim.  We see no reason to require a conviction as a prerequisite to a stand-alone due process claim against a state actor for fabrication of evidence.  The court held that an acquitted criminal defendant may have a stand-alone fabricated evidence claim against state actors under the due process clause of the Fourteenth Amendment if there is a reasonable likelihood that, absent that fabricated evidence, the defendant would not have been criminally charged.  The fabricated evidence must be so significant that it could have affected the outcome of the criminal trial.  Evidence that is incorrect or simply disputed should not be treated as fabricated.  It must be persuasive evidence supporting a conclusion that if the proponents of the evidence are aware that the evidence is incorrect or that the evidence is offered in bad faith.

CONSTITUTIONAL LAW – FIRST AMENDMENT-POLITICAL ACTIVITY-DEMOTION

Heffernan v. City of Paterson, New Jersey, 136 S.Ct. 1412 (2016).  In this case, a government official demoted an employee because the official believed, but incorrectly believed, that the employee had supported a particular candidate for mayor.  The question is whether the official’s factual mistake makes a critical legal difference.  Even though the employee had not in fact engaged in protected political activity, did his demotion “deprive” him of a right secured by the Constitution?  The Supreme Court of the United States held that it did.  In this case, a policeman moved a yard sign at his mother’s request.  The police department assumed that the policeman was supporting a particular candidate and demoted him.  The policeman, in fact, did not support that candidate.  The dismissal of this case upheld by the Third Circuit was overruled.  The upshot is that a discharge or demotion based upon an employer’s belief that the employee has engaged in protected activity can cause the same kind, and degree, of constitutional harm whether that belief does or does not rest upon a factual mistake.

CONSTITUTIONAL LAW-PENNSYLVANIA CONSTITUTION-DELEGATION OF AUTHORITY

Pennsylvania law would delegate the authority for the state to supervise a distressed school district is unconstitutional.  It is simply too much delegation under Article II Section 1 of the Pennsylvania Constitution.  Achievement Charter Elementary v. School District, 132 A.3d 957 (Pa. 2016).

WRONGFUL LIFE-CONSTITUTIONAL LAW-PENNSYLVANIA CONSTITUTION-ARTICLE III OF PENNSYLVANIA CONSTITUTION

CONSTITUTIONAL LAW – EIGHTH AMENDMENT – CRUEL AND UNUSUAL PUNISHMENT – MEDICAL CARE – RETROGRADE EJACULATION CONDITION

A prisoner brought suit against former warden, health services administrator and supervising physician in Allenwood for failure to treat his retrograde ejaculation condition.  Defendants moved for summary judgment based upon qualified immunity.  The trial court denied the motion.  The United States Court of Appeals for the Third Circuit reversed Michtavi v. Scism, 808 F.3d 203 (3d Cir. 2015).  The appellate court found that defendants were entitled to qualified immunity because a prisoner’s right to treatment for retrograde ejaculation, infertility, or erectile dysfunction is not clearly established.  The motion to dismiss should have been granted.

CONSTITUTIONAL LAW-14TH AMENDMENT-LIBERTY INTEREST-STIGMATIZING STATEMENT

CONSTITUTIONAL LAW-PENNSYLVANIA CONSTITUTION-ARTICLE III, SECTION 3-STANDING

This case involved Pennsylvania’s Tobacco Settlement Act.  There was a lawsuit to upset the legislation leading to the settlement.  The court found that those who filed a claim had no standing.  The idea of the settlement was to provide adult basic insurance coverage for Pennsylvanians.  The legislature would not have thought that persons with no entitlement to make a claim on Commonwealth funds could pursue an action in a court of law bringing the entire scheme for implementing the Commonwealth budget into question.  Sears v. Wolf, 118 A.3d 1091 (Pa. 2015).

CONSTITUTIONAL LAW-PENNSYLVANIA CONSTITUTION-ARTICLE III, SECTION 1

This is an en banc opinion.  In this original jurisdiction matter, Act No. 192 is challenged.  Act 192 began as a 2-page Bill establishing criminal penalties for the theft of secondary metals.  In the final stages of enactment, it became an act that also created a civil cause of action for a broad class of individuals and organizations seeking to challenge municipal firearm legislation.  They authorized an award of attorney’s fees to successful challengers in the newly-created civil action.  The court found that the way the Bill was passed violated the Pennsylvania Constitution.  The Bill violates the single-subject requirement of Article III, Section 3, in that the Bill contained more than one subject.  The court agreed that Act 192 clearly, palpably, and plainly violated the single subject rule of Article III, Section 3, of the Pennsylvania Constitution.  Article III, Section 1, deals with the requirement that no Bill be changed during its consideration.  The court found that was violated as well.  Leach v. Commonwealth, 118 A.3d 1271 (Pa. Cmwlth. 2015).

CONSTITUTIONAL LAW-14TH AMENDMENT-EQUAL PROTECTION-ATTORNEY ADMISSIONS-RECIPROCAL PRIVILEGES

NAAMJP v. Castille, 799 F.3d 216 (3rd Cir. 2015).This case considers a constitutional challenge to Pennsylvania Bar Admission Rule 204, which allows experienced attorneys to be admitted to the Pennsylvania Bar without taking the Pennsylvania Bar exam, provided they are barred in a “reciprocal state,” that is, a state that similarly admits Pennsylvania attorneys by motion without requiring them to take that state’s bar exam.  The court upheld the case being dismissed.  Rule 204 does not classify attorneys based on residency, but rather, their state of bar admission, and it does not erect a barrier to migration.  The court finds that the Rule furthers Pennsylvania’s legitimate interest in securing favorable treatment for attorneys admitted in Pennsylvania if and when they seek to join the bars of other states.  The equal protection clause is therefore rejected.  Rule 204 does not regulate when or how attorneys speak, nor does it prohibit professional speech and therefore freedom of speech is not an issue.  It is a content-neutral licensing requirement for the practice of law.  It bears a rational relation with applicant’s fitness or capacity to practice the profession.  The Rule does not impinge upon freedom of association.  The privilege and immunities clause is irrelevant.  The right to petition clause is irrelevant.  The commerce clause has nothing to do with Rule 204.  All the constitutional challenges are swept away.

CONSTITUTIONAL LAW – FIFTH AMENDMENT – TAKINGS CLAUSE – JUST COMPENSATION – RAISIN GROWERS CROP SET ASIDE

Horne v. Department of Agriculture, 135 S. Ct. 2419 (2015). Under the United States Department of Agriculture’s California Raisin Marketing Order a percentage of a grower’s crop must be physically set aside in certain years for the account of the Government, free of charge, the Government then sells, allocates or otherwise disposes of the raisins in ways it determines are best suited to the maintaining of an orderly market. The question was whether the Takings Clause of the Fifth Amendment bars the Government from imposing such a demand on growers without just compensation. Raisins are private property, the fruit of the grower’s labor.  They are not public things subject to absolute control of the state. The growers should be relieved of their obligation to pay the fine and associated civil penalties.They were assessed when they resisted the Government’s effort to take their raisins.  After a decade this case has gone on long enough. The Hornes were not required to pay the fine and then seek compensation under the Tucker Act.

CONSTITUTIONAL LAW – FOURTH AMENDMENT – SEARCH AND SEIZURE – HOTEL RECORD OF GUESTS

City of Los Angeles, California v. Patel, 135 S. Ct. 2443 (2015).  A Fourth Amendment challenge was brought to a provision of Los Angeles Municipal Code that compels the operator of a hotel to keep a record containing information concerning guests and to make this record available to an officer of the Los Angeles Police Department for inspection.  The court held that a facial challenge could be brought under the Fourth Amendment.  The court further held that the provision of the Los Angeles Municipal Code that requires hotel operators to make their registries available to the police on demand is facially unconstitutional because it penalizes them for declining to turn over their records without affording them any opportunity for precompliance review.

NEGLIGENCE-MISREPRESENTATION-ECONOMIC LOSS DOCTRINE

In this case involving a fraud in the use of credit cards, the Economic Loss Doctrine precludes a negligence case.  The Bilt-Write case does not apply.  Pennsylvania public policy weighs against imposing liability because cardholders, not card issuers, are in the best position to prevent employees with access to security information from committing fraud.  Azur vs. Chase Bank, USA National Association, 601 F.3d (3rd Cir. 2010).

CONSTITUTIONAL LAW-FOURTH AMENDMENT-SEARCH AND SEIZURE-GOVERNMENT REGULATION, LABELING REQUIREMENTS

Plaintiffs are a collection of individuals and commercial entities that produced images that are subject to government regulation.  The government criminalizes both commercial and non-commercial use of children in sexually explicit material.  Congress placed the onus on producers to collect information demonstrating that their performers were not minors.  The regulatory scheme was challenged as a violation of the Fourth Amendment and First Amendment as well.  The question is whether the government narrowly tailored its function with respect to free speech?  The court examined the nature of the burden placed upon the producers of the materials.  The amount of speech impacted was also examined.  The age of the models were examined and most of them were over the age of 25.  Plaintiff employs a substantial number of youthful-looking models.  The burden to comply with the statute therefore is minimal and prohibits none of their speech.  The burden of the plaintiffs establishing an identification and record-keeping system accessible by the government law enforcement agencies does in fact advance the government’s interest in combatting child pornography.  Statutes and regulations with one possible exception are narrowly tailored as applied to plaintiffs.  The court also looked at a facial challenge to the statute.  Plaintiffs failed to prove that the invalid applications to the statutes are substantial relative to the statutes’ legitimate purpose.  The Fourth Amendment inspection regime was examined.  The court found that intrusion to be of constitutional dimensions.  Warrantless searches authorized by the regulation violate the Fourth Amendment as applied to the plaintiffs.  Associational standing was also looked at.  Free Speech Coalition v. Attorney General U.S., 787 F.3d 142 (3d Cir. 2015).

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

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.

Civil Rights: Immunity Qualified Immunity Suicide Screening

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 Constitution.  At the very least, the prison officials were not contravening clearly established law.  They are entitled to qualified immunity.

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

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 training, that does not negate qualified immunity.  The question is whether a reasonable officer could have believed that his conduct was justified.  Plaintiff could not overcome summary judgment by an expert report.  In sum, we hold that qualified immunity applies because the officers had no “fair and clear warning of what the Constitution requires.”

CONSTITUTIONAL LAW-FIRST AMENDMENT-SPEECH-JUDGES PERSONALLY SOLICITING FUNDS FOR THEIR CAMPAIGNS

Williams-Yulee v. Florida Bar, 135 S.Ct. 1656 (2015).  In an effort to preserve public confidence in the integrity of their judiciaries, many states that permit election of judges prohibit judges and judicial candidates from personally soliciting funds for their campaigns.  The First Amendment permits such restrictions on free speech.  A state may restrict the speech of a judicial candidate only if the restriction is narrowly tailored to serve a compelling interest.  This is one of the rare cases in which a speech restriction withstands strict scrutiny.  A state’s decision to elect its judges does not require it to tolerate risks of potential corruption of the judicial system.  Allowing judicial candidates to write thank you notes to campaign donors does not detract from the state’s interest in preserving public confidence in the integrity of the judiciary.  A failure to ban thank you notes for contributions not solicited by the candidate does not undercut the rationale of the Bar Association.  The state has good reason for allowing candidates to write thank you notes and raise money through committees.  The Supreme Court will not punish Florida for leaving more open, rather than fewer, avenues of expression, especially when there is no indication that the selective restriction of speech reflects a pretextual motive.

Hess v. Pennsylvania Public Utility Commission, 107 A.3d 246 (Pa. Commw. 2014) Case Summary

This opinion by the entire court, en banc, addressed the power of eminent domain to acquire right-of-way and easements over certain lands of Protestants for construction of a new 11-mile transmission line and substation.  PP&L is a public utility and an electric distribution company as defined by the law in Pennsylvania.  Testimony was provided.  The Commission’s determination of whether New Line Transmission Tie Line and New Substation are necessary or proper for the service, accommodation, convenience or safety of the public is entitled to strong deference and giving controlling weight unless it is clearly erroneous.  The court thoroughly reviewed the Commission’s decision and briefs and the entire record and concluded that there was substantial evidence to support the Commission’s finding that PP&L considered alternative solutions and that Protestants’ alternative solutions would not resolve their liability issues identified in the project area.  Therefore the Pennsylvania Public Utility Commission decision was affirmed.

Zauflik vs. Pensbury School District, 104 A.3d 1096 (2014) – Case Summary

Article I, Section 11 of the Pennsylvania Constitution indicates the courts should be open. Article III, Section 18 indicates that people are entitled to reasonable compensation for injuries.  In this case the constitutionality of a $500,000 statutory cap available in tort from a local agency was challenged.  Prior decisions in Pennsylvania had upheld such caps.  It was pointed out by the injured parties that there is insurance available well in excess of the $500,000.  This section does not violate the equal protection clause of the constitution either.  Appellants claims that a right to full recovery is a fundamental right and cites to many provisions in the Pennsylvania Constitution such as the right to trial by jury and the guarantee against liability limits.  The existence or availability of insurance coverage is not relevant or admissible.  It is not difficult to imagine the adverse budgetary consequences to local agencies if there are large verdicts against them.  There is a reasonable difference in classification between public as opposed to private tortfeasors.  The separation of powers provision is not violated by the cap.  The cap does not violate the right to trial by jury.

Holt v. Hobbs, 135 S.Ct. 853 (2015) Case Summary

A state or local government which prohibits the growing of a beard unless it is necessary for a dermatological condition violates the Religious Land Use and Institutionalized Persons Act of 2000.  The statute prohibits the state or local government from taking any action that substantially burdens the religious exercise of an institutionalized person unless the government demonstrates that the action constitutes the least restrictive means of furthering compelling governmental interest.  In this case, a devout Muslim wanted to grow a ½” beard in accordance with his religious beliefs.  The state prison department’s policy was found to substantially burden the religious exercise of the prison inmate.  The Department of Corrections failed to show that its policy is the least restrictive means of furthering compelling interests.

CONSTITUTIONAL LAW-FIRST AMENDMENT-RELIGION-PRISON GROOMING POLICY-BEARDS

A state or local government which prohibits the growing of a beard unless it is necessary for a dermatological condition violates the Religious Land Use and Institutionalized Persons Act of 2000.  The statute prohibits the state or local government from taking any action that substantially burdens the religious exercise of an institutionalized person unless the government demonstrates that the action constitutes the least restrictive means of furthering compelling governmental interest.  In this case, a devout Muslim wanted to grow a ½” beard in accordance with his religious beliefs.  The state prison department’s policy was found to substantially burden the religious exercise of the prison inmate.  The Department of Corrections failed to show that its policy is the least restrictive means of furthering compelling interests.  Holt v. Hobbs, 135 S.Ct. 853 (2015).

Montanez v. Secretary, Pennsylvania Department of Corrections, 773 F.3d 472 (3d Cir. 2014) Case Summary

According to Pennsylvania law, inmates can have deducted from their accounts amounts of money for restitution, fines and costs.  The inmates get this money by working in the prison system, for example.  After providing the required initial notice, the Pennsylvania Department of Corrections could provide inmates with an informal opportunity to supply written objections to prison administrators prior to the first deduction.  We need not set forth specific procedures and the DOC retains discretion consistent with its constitutional obligation to implement procedures in a flexible and cost-effective manner.  So procedural due process does exist when the prison system deducts money from the prison account.  There is qualified immunity for the officers who carried out this policy so that there can be no claim for money damages but there is still the availability of injunctive relief.

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