Governmental Liability Volume 27 Issue 1 | Recent Cases of Interest

Second Circuit

Uniformed Fire Officers Ass'n v. De Blasio, -- Fed.Appx. --, 2021 WL 561505 (2d Cir. 2021)

This case involves the Second Circuit's determination whether the City of New York could disclose disciplinary records of members of the New York City Police Department, New York City Fire Department, and New York City Department of Corrections.

In 2020, the New York legislature repealed Section 50-a of the New York Civil Rights Law, which for decades had shielded law enforcement disciplinary records from public disclosure. Shortly after the repeal, New York City announced its intention to publish certain types of disciplinary records of police officers, fire fighters, and corrections officers, and provide other records pursuant to FOIL requests. Several unions to which the officers belonged filed suit against the City, and also filed a motion to enjoin any disclosure of allegations of conduct against their members that are unsubstantiated, unfounded, or non-final, or that resulted in a finding of not guilty. The District Court for the Southern District of New York rejected several of the unions' arguments and denied the motion for a preliminary injunction in substantial part, to which the unions appealed.

The Second Circuit upheld the district court's denial of the preliminary injunction in substantial part, and held that most officers' disciplinary records could be made available to the public. The court rejected the unions' argument that making the records public would cause irreparable harm (i.e. constitute an invasion of privacy, endanger the officers, and hurt their future employment prospects). The court also rejected the argument that the City violated officers' collective bargaining rights. The court noted that numerous other states make similar misconduct records at least partially available to the public without any evidence of a resulting increase of danger to officers or harm to employment opportunities. The alleged harm to officers' future employment prospects was speculative. The court also stated that to the extent the records are responsive to document requests made under the FOIL, New York's disclosure obligations could not be bargained away with collective bargaining agreements.

Ferreira v. City of Binghamton, 975 F.3d 255 (2d Cir. 2020)

This case involves a no-knock search warrant on a home where City of Binghamton police shot and injured the unarmed plaintiff-arrestee. Plaintiff filed suit under 42 U.S.C §1983 and New York state law against the City of Binghamton and the shooting officer for excessive force and negligence. At trial, the jury found in plaintiff's favor against the City, finding it liable for the police department's negligence regarding the raid. The City moved for judgment as a matter of law to set aside the verdict. The district court granted the motion on the grounds that: (1) the City did not owe plaintiff a "special duty," therefore it could not face municipal liability; and alternatively, (2) the City had discretionary immunity since it had discretionary authority to plan for the raid.

On appeal, the Second Circuit reversed on immunity but certified the special duty issue to New York's highest state court.

First, the Second Circuit held that the City did not have discretionary immunity. The doctrine of discretionary immunity draws a distinction between "discretionary" and "ministerial" government acts. Where a public employee is negligent in the performance of a discretionary act (in contrast to negligent performance of a ministerial act, generally meaning conduct requiring adherence to a governing rule, with a compulsory result), discretionary immunity may protect the municipality from liability. A public employee does not have discretionary immunity unless the injury-producing act involved the exercise of reasoned judgment. Further, a police officer does not have discretionary immunity where they violated acceptable police practice. Here, the court held that while the police officer's planning of the raid was discretionary (and not ministerial), the jury could have reasonably concluded that the City was negligent and violated standard police practice by failing to conduct adequate pre-raid surveillance, and that such a failure was a proximate cause of his injuries. Therefore, the City was not entitled to discretionary immunity.

Second, the Second Circuit agreed with the district court that the City did not owe plaintiff a special duty. However, the Second Circuit could not determine whether the special duty rule is applicable because it is a New York State law, and it is impossible for the Second Circuit to discern from New York case law whether the special duty rule applies to cases of government-inflicted injury. On the one hand, New York's longstanding practice was to apply the special duty rule only to claims where the government was negligent in response to an ongoing or threatened injury by a third party, rather than those cases where the government itself inflicted injury on the plaintiff. However, recent New York Court of Appeals' precedent states in dictum that the special duty rule applies in all cases where a municipality acts in a governmental capacity. As such, the Second Circuit certified this question to the court of appeals, and retained jurisdiction for resolving the appeal once the New York Court of Appeals responds to the certification.

Molly M. Ryan
Ashley K. Boisvert
Goldberg Segalla LLP
Syracuse, NY

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Third Circuit

Hira Educational Services North America v. Augustine, --- F.3d ---, 2021 WL 955948 (3rd Cir. March 15, 2021)

In this case, an Islamic educational group sued three Pennsylvania legislators who led an effort to block the sale of a former state-operated youth intervention center. The group wished to establish another youth intervention center there, as well as an Islamic boarding school. The legislators tried to pass a law and, later a resolution, to prevent the sale. They also communicated with the governor about the sale and they allegedly took other actions. After the sale fell through, the property was purchased by another entity for a considerably higher sum. The educational group sued the three legislators as well as various other state and local officials claiming violations of the Religious Land Use and Institutionalized Persons Act, the Pennsylvania Religious Freedom Protection Act, and 42 U.S.C. §1983. It also requested declaratory and injunctive relief to delay the transfer of the property to the new buyer. The legislators responded with a motion to dismiss, raising absolute immunity based upon constitutional protections under federal and state speech and debate clauses. Two of the legislators also asserted qualified immunity defenses. Their motions were denied, prompting appeals. The Third Circuit reversed in part and it affirmed in part.

The Third Circuit held that the legislators were entitled to absolute immunity with regard to their quintessential legislative efforts to pass a law and a resolution to block the sale. They were also protected when engaged in legislative fact-finding activities. Their public statements about the proposed sale were not protected under federal law but they were protected somewhat under state law.

The Third Circuit also ruled that two of the legislators were entitled to qualified immunity because their actions did not violate any clearly established law. The plaintiff failed to cite any precedential case prohibiting legislators from speaking against the sale of state-owned property or from extending preferential treatment to certain recipients of government contracts. Further, given the high degree of specificity required to prove that a right has been clearly established, the plaintiff's reliance upon the general constitutional rule prohibiting governmental officials from interfering with the free exercise of religion did not suffice to provide fair warning of potential liability. Because the third legislator did not raise any qualified immunity defense below, he was not protected by that doctrine at this stage of proceedings, but he was free to raise that defense on remand.

Louis C. Long
Thomas, Thomas & Hafer LLP
Pittsburgh, PA

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Fourth Circuit

Doe 4 ex rel. Lopez v. Shenandoah Valley Juvenile Ctr. Comm'n, 985 F.3d 327 (4th Cir. Jan. 14, 2021)

A group of unaccompanied immigrant children with severe mental health needs brought Section 1983 claims against the Shenandoah Valley Juvenile Center Commission (the "Commission"), a government entity formed by a group of Virginia cities and counties, which operates a secure juvenile detention facility, the Shenandoah Valley Juvenile Center ("SVJC"). The plaintiffs alleged, inter alia, that the Commission engaged in unlawful patterns of conduct in failing to provide a constitutionally adequate level of care of plaintiffs' serious mental health needs. The U.S. District Court for the Western District of Virginia granted summary judgment to the Commission on this issue, which was reversed and remanded in this decision by the U.S. Court of Appeals for the Fourth Circuit.

Plaintiffs are unaccompanied alien children ("UACs") who fled their countries of origin after experiencing significant traumas and who suffer from severe mental illnesses, which resulted in frequent self-harm and suicide attempts. When UACs arrive in in the US, the U.S. Department of Health and Human Service's Office of Refugee Resettlement ("ORR") takes custody of them and is responsible for identifying qualified individuals or facilities to house and care for them, placing them in care, and supervising the individual or facility to ensure that the care received is adequate. See 6 U.S.C. §279(a)-(b); 45 C.F.R. §§410.102, 410.207. Placements must be "the least restrictive setting that is in the best interest of the child," "capable of providing for the child's physical and mental well-being," and "safe and sanitary and… consistent with ORR's concern for the particular vulnerability of minors." 8 U.S.C. §1232(c)(2)-(3). ORR placed UACs with SVJC in cases where safety concerns required a secure placement, where about 20-40 UACs at a time were also housed with pretrial juvenile detainees. Clinicians reviewed a UAC's records before allowing placement at SVJC in case the facility could not sufficiently address their mental health needs, but SVJC's leadership acknowledged that most UACs in its care had suffered severe trauma and required mental health treatment. Although SVJC made certain mental health services available to all of its residents, including UACs, it did not have the capacity to deal with more severe mental illness. It also subjected UACs who "acted out" to the same forms of discipline used with the other juveniles detained at SVJC for criminal reasons.

A former staff member testified that staff reacted with indifference when UACs harmed themselves or even joked about erratic behavior or the punitive measures children were subjected to, and that trauma-based techniques were trained, but never implemented, and did not have any effect on SVJC's policies or practices. Plaintiffs' expert opined that the facility failed to provide professionally appropriate treatment that accounted for the trauma experienced by the UACs and instead used punishment and behavioral control methods in response to their symptoms of mental illness that not only failed to treat their conditions, but exacerbated them.

As an initial matter, the Fourth Circuit reviewed whether the plaintiffs met the redressability requirement for standing, given that ORR was not named a defendant in the suit. The Commission argued that ORR retained ultimate responsibility for the UACs' placement and mental health treatment. The Fourth Circuit held that redressability requirement was met, because the suit could relieve at least some of the injuries alleged, as the plaintiffs challenged the treatment and services provided by SVJC and sought injunctive relief to require the Commission to implement "trauma informed" standards of care at SVJC. Although certain specialized forms of psychiatric care required approval from ORR before SVJC could implement them, the plaintiffs also requested forms of relief relating solely to SVJC's operations, including requiring staff to comply with SVJC's own policies and changing how SVJC interacted with children in their care, such as minimizing punitive responses to mental health crises. The Fourth Circuit also found it significant that ORR's role depended in part on SVJC’s actions, such as approving measures proposed by SVJC, and disagreed with the argument that ORR could have placed plaintiffs in other facilities, on the basis that "a defendant cannot challenge a plaintiff's standing on the speculation that a third party might do something that affects the relief provided."

As a matter of first impression, the Fourth Circuit held that a facility caring for an unaccompanied immigrant child fails to provide a constitutionally adequate level of mental health care if it "substantially departs from accepted professional standards," pursuant to Youngberg v. Romeo, 457 U.S. 307 (1982). The Fourth Circuit declined to apply the deliberate indifference standard used when considering pretrial detainees' allegations of inadequate medical care. The Fourth Circuit reasoned that, under the statutory and regulatory scheme governing the placement of UACs by ORR, the children were placed at SVJC for reasonable care and safety, not just security reasons. Their placement was approved by a medical professional who accounted for the child's mental health needs. Additionally the nature of the facility as a juvenile detention center is not a dispositive factor, and in fact, is secondary to the reason why the person was confined at the facility. Another major factor in the decision was that this case involved children who are held for the purpose of providing care because no parent or guardian is available, not adult immigrants detained for enforcement proceedings such as removal. The Fourth Circuit did not specify in dicta which standard would apply to juveniles charged with crimes in pretrial detention.

The Fourth Circuit applied the standard as elaborated in Youngberg and its decision in Patten v. Nichols, 274 F.3d 829 (4th Cir. 2001), which require plaintiffs to show "such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment." If the standard is applied to a treatment decision of an institutional professional exercising medical judgment, the court presumes that the subjective aspects of the decision are valid. However, the "standards of professional judgment" review under Youngberg is objective, not subjective, and must determine whether the treatment provided was "adequate to address a person's needs under a relevant standard of professional judgment." The court did not decide, but strongly suggested, that the district court should consider on remand whether the professional judgment standard used for UACs should incorporate a trauma-informed approach.

The Fourth Circuit held that the district court incorrectly applied the deliberate indifference standard and accordingly excluded evidence that would have been relevant under the Youngberg standard, such as expert opinions about trauma-informed care. The Fourth Circuit also held that the district court failed to construe the record in the light most favorable to the named plaintiffs in determining whether the plaintiffs needed psychiatric care and whether the plaintiffs were actually receiving psychiatric services at SVJC. The judgment was reversed and the case remanded with instructions to consider the excluded and misread evidence under the correct standard.

Judge Wilkinson dissented on the basis that adopting the "more intrusive professional judgment standard" would result in judicial micromanagement of mental healthcare in facilities where the primary focus is and should be on controlling dangerous behaviors and ensuring residents' safety. Judge Wilkinson also objected that the decision created a circuit split, given that the Third Circuit adopted the deliberate indifference standard for claims by juvenile detainees in A.M. v. Luzerne County Medical Center, 372 F.3d 572, 579 (3d Cir. 2004).

Katherine Barber-Jones
Hartzog Law Group LLP
Raleigh, North Carolina

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Fifth Circuit

Big Tyme Investments, L.L.C. v. Edwards, 985 F.3d 456 (5th Cir. 2021)

In this case, the Fifth Circuit once again applied Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), to a constitutional challenge of a COVID-19 restriction. However, in a concurring opinion, Circuit Judge Don R. Willett strongly questioned the majority's reliance on Jacobson.

Bar owners in Louisiana brought two separate suits (which were consolidated on appeal) against the Governor and Fire Marshal of the State of Louisiana challenging a COVID-19-related restriction. The challenged order prohibited on-site consumption of alcohol and food at "bars" but permitted on-site consumption of alcohol and food at "restaurants." The plaintiffs alleged that such unequal treatment violated their equal protection rights. Notably, the plaintiffs failed to challenge the order's "stated goal of protecting the public by closing bars," but rather only "whether the differential classification of bars is rationally related to that goal." The district courts denied the plaintiffs' motions for preliminary injunctive relief. The Fifth Circuit affirmed.

On appeal, the plaintiffs argued that the district courts erred in applying Jacobson and the Fifth Circuit's decision in In re Abbott, 954 F.3d 772 (5th Cir. 2020), as controlling authority for their equal protection claim. Specifically, the plaintiffs argued that Jacobson and Abbott dealt with substantive due process claims, not equal protection claims. The Fifth Circuit panel expressly rejected this argument stating that "Abbott and its application of Jacobson govern our review of emergency public health measures, regardless of the rights at stake." The majority opinion also went on to clarify that "neither Jacobson nor Abbott compel a lower level of scrutiny than rational basis review." Applying the rational basis review, the panel held that any differential treatment between bars and restaurants under the challenged order was "at least rationally related to reducing the spread of COVID-19 in higher-risk environments."

While the Fifth Circuit's conclusion fell in line with its previous opinions related to COVID-19 orders and restrictions, Circuit Judge Willett's concurring opinion went on to directly challenge whether Jacobson remains good law. Circuit Judge Willett opined that he did not believe the 116-year-old Jacobson opinion "supplies the standard by which courts in 2021 must assess emergency public health measures, because Jacobson predated modern constitutional analysis, specifically, "the judge-invented tiers of scrutiny that distinguish between strongly and weakly protected rights." Circuit Judge Willett rejected the notion that Jacobson requires the use of a rational basis standard to any constitutional challenge of emergency public health measures. Instead, Circuit Judge Willett asserted that Jacobson is not a "stand-alone test" but merely "a recognition of a state's authority to enact temporary measures during emergent public health crises."

Thurman v. Medical Transportation Management, Inc., 982 F.3d 953 (5th Cir. 2020)

This case provided the Fifth Circuit with an open question of law: whether a 42 U.S.C. §1983 claim may be brought to enforce an administrative regulation.

A Medicaid recipient filed suit against a non-emergency medical transportation provider alleging that the failure to pick him up violated his alleged right to non-emergency medical transportation under various federal regulatory and statutory Medicaid provisions. In response to the defendant's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the plaintiff voluntarily dismissed all but his §1983 claims. The district court went on to dismiss those remaining claims. On appeal, the Fifth Circuit affirmed.

In its opinion, the Fifth Circuit panel noted that "the single issue for decision was whether [the defendant] deprived [the plaintiff] of a federal right cognizable under §1983." The Fifth Circuit held that the defendant had not committed any such deprivation. In affirming the district court's dismissal, the Fifth Circuit resolved an open question of law by holding that a §1983 claim may not be brought to enforce an administrative regulation. The panel expressly stated that "agency regulations cannot independently confer federal rights enforceable under §1983" because Congress—not an agency of the Executive Branch—creates federal rights. Driving home its holding, the Fifth Circuit provided that "it is 'Congress, rather than the executive, [that] is the lawmaker in our democracy.'"

DM Arbor Court, Ltd. v. City of Houston, 988 F.3d 215 (5th Cir. 2021)

In this case, the Fifth Circuit addressed "an idiosyncratic feature of ripeness law," namely, whether a claim may become ripe during the pendency of appeal.

An operator of low-income housing filed suit against the City of Houston alleging the city's denial of permits to repair units damaged in Hurricane Harvey was a regulatory taking and violated the due process, equal protection, and contracts clauses of the United States Constitution. However, at the time of filing suit, the plaintiff had not obtained a final decision from the city council, which was the final arbiter of city permit requests. Therefore, the district court dismissed the plaintiff's suit for lack of subject matter jurisdiction because the plaintiff's claims were not ripe.

On appeal, the Fifth Circuit agreed that the claims were not ripe when the district court dismissed the suit. However, after the filing of the appeal, the city council ruled on the repair permits and denied them. This forced the Fifth Circuit to answer the question: "Can a case ripen while on appeal?" The panel answered "yes" and vacated the district court's dismissal. In reaching its conclusion, the Fifth Circuit reiterated the principle that "[i]n weighing a ripeness claim, an appellate court may properly consider events occurring after the trial court's decision." Recognizing that "[i]t is hard to see how jurisdiction can come into existence during the appeal," the panel stated that allowing a case to ripen on appeal "makes more sense when the ripeness problem is rooted in prudential, rather than constitutional, concerns." Further, the Fifth Circuit held that it has a duty (as opposed to discretionary authority) to remand a case that ripens on appeal for consideration on the merits.

Hobbs v. Warren, 20-10508, --- Fed.Appx. ----, 2021 WL 855831 (5th Cir. 2021) (per curiam)

In determining whether an officer was entitled to qualified immunity, the Fifth Circuit found itself "confronted with a quandary." Specifically, the Fifth Circuit found that while the plaintiff had pled sufficient facts to satisfy his burden for the first prong of the qualified immunity test (a constitutional violation), the panel needed additional facts to determine whether the officer’s conduct was objectively unreasonable under the second prong of the test.

The plaintiff brought a claim against the defendant officer under 42 U.S.C. §1983 for excessive use of force. The plaintiff alleged that, after an incorrect report about the plaintiff at a retail store, a group of police officers began chasing him. During that chase, the off-duty defendant officer intervened, instructed his wife to drive their car towards the plaintiff, and opened his passenger door, which struck and injured the plaintiff. In response to the plaintiff's suit, the defendant officer filed a motion to dismiss asserting qualified immunity, and the district court granted the motion.

On appeal, the Fifth Circuit vacated the district court's order and remanded the case for discovery limited to the issue of qualified immunity. The panel determined that "facts crucial to the resolution of the qualified immunity issue remain[ed] unknown" at the time. While the Fifth Circuit panel acknowledged that the plaintiff bore the burden of demonstrating that qualified immunity was inapplicable, it still remanded the case for limited discovery because (1) the plaintiff pled sufficient facts that, if true, entitled him to relief and (2) "the typical facts" relied on to determine whether the officer's conduct was objectively unreasonable were unknown.

Darrell Noga
Christopher Klement
Brown Fox PLLC
Dallas, Texas

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Sixth Circuit

Ky. Ex Rel. Danville Christian Acad., Inc. v. Beshear, 981 F.3d 505, 507 (6th Cir. 2020)

The Sixth Circuit granted Governor Beshear's motion for a stay of the preliminary injunction issued by the district court enjoining him from enforcing Executive Order 2020-969 against any private, religious schools otherwise following COVID-19 public health guidelines. The injunctive relief deemed improper by the Sixth Circuit was granted after the Danville Christian Academy and AG Daniel Cameron challenged the order as violating the Free Exercise and Establishment Clauses of the First Amendment and the Kentucky Religious Freedom Restoration Act ("RFRA"). Executive Order 2020-969 prohibited in-person educational instruction at all Kentucky elementary and secondary schools, both public and private, religious, or otherwise. The order excepted from its requirements "small group in-person targeted services" and "private schools conducted in a home solely for members of that household." Both preschools and colleges and universities were also exempted.

In determining whether to issue a stay, the court concentrated on plaintiffs' likelihood of success of their constitutional challenges on the merits. City of Pontiac Retired Emps. Ass'n v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014). As to the Free Exercise Clause claims, the court observed that "a generally applicable law that incidentally burdens religious practices will usually be upheld." Roberts v. Neace, 958 F.3d 409, 413 (6th Cir. 2020) (citing, Emp. Div., Dep't of Hum. Res. Of Or. V. Smith, 494 U.S. 872, 878-79 (1990)). Furthermore, the "treatment of similarly situated entities in comparable ways serves public health interests at the same time it preserves bedrock free-exercise guarantees." Roberts, 958 F.3d at 416.

Because EO 2020-969 applies to all public and private elementary and secondary schools in Kentucky, the court reasoned it would likely be upheld as neutral and of general applicability and need not be justified by a compelling government interest. The court also found that the plaintiffs would not likely succeed on the RFRA and Establishment Clause claims for the reasons articulated by the district court: (1) plaintiffs are unlikely to succeed on the Establishment Clause claims because the order passes the Lemon test – the law has the secular purpose of slowing COVID-19, it has the primary effect of limiting both secular and religious school gatherings, and it does not foster entanglement with religion; and (2) the RFRA claim is clearly barred by sovereign immunity under the Eleventh Amendment.

Additionally, the court distinguished its order from other successful challenges to state COVID-19 restrictions in both the U.S. Supreme Court and the Sixth Circuit. Unlike those cases, EO 2020-969 did not specifically target religious activities and did not contain similar extensive exceptions for secular activities. See, Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020) (the order at issue treated schools, factories, liquor stores, bicycle repair shops, and others "less harshly" than houses of worship); and Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (6th Cir. 2020) (the order at issue applied specifically to houses of worship).

After the Sixth Circuit granted the motion to stay the district court’s preliminary injunction, the plaintiffs filed an emergency application to vacate the stay with the U.S. Supreme Court, which was denied on December 17, 2020.

L.D. Management Company, American Pride IX, Inc. d/b/a Lion's Den Adult Superstore v. Jim Gray, in His Official Capacity as Secretary for the Kentucky Transportation Cabinet, 988 F.3d 836 (6th Cir. Feb. 16, 2021)

In this First Amendment case, the Sixth Circuit ruled in favor of the Lion's Den Adult Superstore and (i) held that the Kentucky Billboard Act was unconstitutional on its face and as applied to the Lion's Den, and (ii) enjoined application of the Act to it.

The subject of this First Amendment action was a billboard for the Lion's Den, an adult bookstore in the business of selling "books, magazines, and other items not worth belaboring"). The sign read "Lion's Den Adult Superstore Exit Now" and was attached to a tractor-trailer on a neighbor's property near exit 251 off I-65. The off-site location was selected in order to catch the attention of interstate drivers, which represented more than half of the store's customers. The billboard was noticed by the Kentucky Department of Transportation, which determined it violated the Kentucky Billboard Act and ordered the bookstore to take down the sign.

The Kentucky Billboard Act imposes additional requirements on roadside billboards advertising off-site activities located off the property on which the billboard is located. The requirements apply to non-commercial and commercial speech but not on-site billboards. For example, billboards advertising off-site activities require a permit and must be securely fixed to the ground, but those advertising on-site activities do not and need not be. Likewise, billboards highlighting off-site events may not be placed on mobile structures, but those advertising on-site activities are not required to adhere to this rule.

The court determined that the Billboard Act's regulation of speech turned on the "topic discussed." Because the message contained on the billboard determines whether special requirements are imposed, the Act amounts to content-based regulation of speech on its face. The constitutionality of content-based speech regulations depends on whether they measure up to strict scrutiny review. Even though the bookstore's billboard was commercial speech, intermediate scrutiny did not apply because the Billboard Act regulates both commercial and noncommercial speech alike. Int'l Outdoor, Inc. v. City of Troy, 974 F.3d 690, 696, 703, 705 (6th Cir. 2020). Therefore, Kentucky was required to demonstrate that the law's distinction between on-site and off-site signs furthered a compelling government interest which is narrowly tailored to that end.

Kentucky claimed that the Billboard Act furthered its interests in safety and aesthetics. These alleged interests did not pass constitutional muster. First, those interests are not compelling under Thomas v. Bright, 937 F.3d 721 (6th Cir. 2019) (ruling that the "on-premises exception" in Tennessee's Billboard Act was content-based regulation) Second, even if they were compelling, the Billboard Act is underinclusive because it does not regulate other billboards with similar qualities. For example, with respect to aesthetics, the court observed that billboards about on-site activities pose "no greater eyesore" than billboards about off-site activities. Likewise, there was no basis to conclude that on-site signs posed a greater safety threat than off-site signs. Because the Act failed strict scrutiny, summary judgment in favor of the bookstore was affirmed.

Caitlin McQueen Tubbesing
Freeman Mathis & Gary LLP
Lexington, Kentucky

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Seventh Circuit

Henry v. Hulett, 969 F.3d 769 (7th Cir. 2020)

The Seventh Circuit recently found that convicted inmates retain a limited Fourth Amendment right to bodily privacy during visual inspections. In 2011, an Illinois state prison held a cadet training exercise. During a simulated "mass shakedown", two hundred female inmates were strip searched for the sole purpose of training. The searches were conducted only by female cadets. However, according to the plaintiffs, male cadets and officers could see into the area where the searches were performed. The inmates were reportedly called derogatory names, insulted, and denied the use of sanitary products during the process. The defendants prevailed at trial on the plaintiffs' Eighth Amendment claim and the plaintiffs appealed the district court's dismissal of their Fourth Amendment claim.

After a review of Supreme Court and circuit precedent, the court of appeals explained that "prisoners retain Fourth Amendment rights only if a 'justifiable,' a 'reasonable,' or a 'legitimate expectation of privacy' is at stake." The Seventh Circuit then

conclude[d] that a diminished right to privacy in one's body … is not fundamentally incompatible with imprisonment and is an expectation of privacy that society would recognize as reasonable. We therefore … hold that the Fourth Amendment protects (in a severely limited way) an inmate's right to bodily privacy during visual inspections, subject to reasonable intrusions that the realities of incarceration often demand.

Henry, 969 F.3d at 779.

These Fourth Amendment protections were applied to both pretrial detainees and convicted inmates. The Seventh Circuit explained that both the Fourth and Eighth Amendments simultaneously applied to bodily searches of convicted prisoners. While the Eight Amendment protected against searches that were subjectively intended to punish a prisoner, the Fourth Amendment's objective reasonableness standard "protects prisoners from searches that may be related to or serve some institutional objective, but where guards nevertheless perform the searches in an unreasonable manner, in an unreasonable place, or for an unreasonable purpose." Id. At 781. The case was remanded and the district court directed to analyze the objective reasonableness of the strip searches at issue.

This decision follows a recent trend of courts extending less deference to correctional administrators. As the Seventh Circuit noted, many other courts found the Fourth Amendment provides some limited protections to prisoners. Although the allegations here were particularly egregious and do not appear closely related to institutional security, this decision is not an outlier. Supervisors must consider their actions in light of the security needs of the facility to reduce potential liability, particularly in the context of training. As correctional actions become more attenuated from immediate security issues, courts are less likely to find them justifiable.

Mays v. Dart, 974 F.3d 810 (7th Cir. 2020) (petition for certiorari pending)

In Mays, detainees sued regarding jail conditions in the context of the COVID-19 pandemic. Claiming the Cook County Sheriff violated the Due Process Clause of the Fourteenth Amendment by failing to provide safe living conditions, the plaintiffs sought injunctive relief including social distancing, sanitation, diagnostic testing, and personal protective equipment ("PPE"). A district court granted an injunction which required the provision of hand sanitizer and soap to all detainees and face masks to detainees in quarantine. The district court also prohibited double celling and group housing to allow for social distancing. The Sheriff appealed these housing restrictions.

The Court of Appeals first noted that the Cook County Jail has the population of a small town, with many detainees living in dormitory settings. It also experienced one of the largest outbreaks of COVID-19, with 541 detainees and staff infected by the time the district court granted the injunction in April 2020. The Jail made attempts to reduce density, which included increasing the number of single cell housing and release and electronic monitoring of 1,200 detainees.

The Seventh Circuit determined that the district court failed to consider the totality of the circumstances and failed to afford proper deference to the Sheriff in adopting policies necessary to ensure safety and security in the Jail. Regarding the totality of the circumstances, the court noted that the objective reasonableness analysis enunciated in Kingsley v. Hendrickson, 576 U.S. 389 (2015), governed conditions of confinement claims. Objective reasonableness requires analyzing all of the facts and circumstances of each case. However, the district court's analysis focused almost exclusively on social distancing and did not fully consider the Sheriff’s efforts to manage the pandemic. While discussing the Sheriff's attempts to increase social distance, the district court did not consider the Jail’s other actions, which included rapid testing, quarantining, and disinfection protocols.

Turning to the proper deference to correctional administrators, the court of appeals stated that the district court "did not discuss in a meaningful way how, if at all, the considerable deference it owed to the judgment of prison administrators impacted its analysis." Mays, 974 F.3d at 821. Safety and security concerns play a significant role in correctional housing decisions and jail administrators should be granted flexibility in cell assignments.

In defending correctional responses to COVID-19 and other conditions of confinement, jails should emphasize their entire program. This would include social distancing, additional medical protocols, cleaning, and disinfecting, use of PPE, testing, vaccination, and education. Jailors should also explain the limitations of their physical plant and the threats to safety and security that a specific requested relief would entail. The totality of the circumstances standard allows correctional administrators flexibility to adapt their particular facility to the needs of the pandemic. No single effort should be viewed in isolation but should be judged against the many possible responses that a given institution chooses to implement.

Charles R. Starnes
Leib Knott Gaynor LLC
Milwaukee, Wisconsin

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Eighth Circuit

Quraishi v. St. Charles County, Missouri, 986 F.3d 831 (8th Cir. 2021)

Three reporters with Al Jazeera America were covering the protests after the death of Michael Brown in Ferguson, Missouri when an officer from the county SWAT team deployed a tear-gas canister at them while they were preparing for a live broadcast. Numerous videos showed a calm scene that is interrupted by an officer shooting rubber bullets at the reporters and tear-gas deployed toward them. The officer claimed the reporters were told to disperse and turn off their lights but refused and that he saw projectiles launched from the area with lights. However, none of the video evidence supported this. The Eighth Circuit Court of Appeals determined the officer did not have arguable probable cause to deploy the tear-gas. A robust consensus of cases clearly establishes that using an arrest (that lacks arguable probable cause) to interfere with First Amendment activity is a constitutional violation, precluding the officer from qualified immunity on the First Amendment claim. As to the Fourth Amendment claim, the reporters provided no controlling authority or robust consensus of cases to clearly establish that deploying tear gas is a "seizure." Therefore, the officer was entitled to qualified immunity on the Fourth Amendment claim.

Campbell v. Reisch, 986 F.3d 822 (8th Cir. 2021)

A Missouri state representative did not act under color of state law when she blocked a constituent from her social media account and thus did not violate his First Amendment right to freedom of speech. The representative created a Twitter account announcing her candidacy for office and once elected, tweeted pictures of herself with other elected officials and messages about successes she had had representing her constituents. The account was created prior to the representative being elected and although "a private account can turn into a governmental one if it becomes an organ of official business", this one did not because it was used primarily to tout the representative's record and show voters she was actively advancing her legislative agenda and fulfilling campaign promises.

Robbins v. City of Des Moines, 984 F.3d 673 (8th Cir. 2021)

Robbins was recording illegally parked vehicles from a public sidewalk adjacent to the Des Moines Police Station. A detective approached and asked what he was doing because he was aware that vehicles had recently been vandalized in that area and that two officers had been murdered by a person with a history of filming the police. Robbins was uncooperative, refusing to provide his name or identification and asking if he was doing anything illegal. Officers said he was not doing anything illegal but his conduct was suspicious. They ordered Robbins to leave and he refused. Officers then advised Robbins he was loitering and would be arrested if he did not identify himself. The detective said to "just make a suspicious activity case" and to "confiscate the camera until we have a reason for what we're doing." Thereafter Robbins was placed under arrest and briefly detained. Officers seized his cell phone and kept it for 12 days until Robbins' attorney demanded it be returned. The officers were entitled to qualified immunity on the First Amendment claim because his activity when combined with their knowledge of stolen and vandalized vehicles in the area and previous filming that led officers to being killed could cause an objectively reasonable person to suspect Robbins was up to more than just simply recording the police. The officers' conduct was not objectively unreasonable given the circumstances. Officers were not entitled to qualified immunity on the Fourth Amendment claim because the warrantless seizure of the cell phone and keeping it for 12 days was per se unreasonable.

Rebecca L. Mann
Gunderson Palmer Nelson Ashmore LLP
Rapid City, South Dakota

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Ninth Circuit

Ventura v. Rutledge, 978 F.3d 1088 (9th Cir. 2020)

The Ninth Circuit upheld the district court's order granting qualified immunity to an officer in connection with a shooting. The officer shot and killed a man who had advanced towards an individual whom the man had assaulted earlier in the day. During this process, the individual was brandishing a knife and was defying specific orders to stop, including a warning the officer would shoot.

Cortesluna v. Leon, 979 F.3d 645 (9th Cir. 2020)

The Ninth Circuit affirmed summary judgment for Ofc. Leon for deploying a beanbag shotgun at plaintiff when he had lowered his hands towards his thighs, where a knife was located. However, it reversed summary judgment for a different officer who had kneeled on plaintiff's back, stating there was a genuine issue of material fact as to whether the force was excessive on a prone and non-resisting person. The court also affirmed summary judgment for the supervising sergeant, finding he lacked any realistic opportunity to intercede to stop any claimed excessive force.

Sandoval v. County of San Diego, 985 F.3d 657 (9th Cir. January 13, 2021)

The Ninth Circuit held that when analyzing a qualified immunity defense to a claim of inadequate medical care by a pretrial detainee, the applicable legal standard is Horton by Horton v. City of Santa Maria, 915 F.3d 592 (9th Cir. 2019) even though Horton was not the law when the underlying conduct took place. In other words, the current objective deliberate indifference standard must be used to analyze whether there was a constitutional violation even though the prior standard required a showing of subjective deliberate indifference.

Estate of Anderson v. Marsh, 985 F.3d 726 (9th Cir. January 15, 2021)

The Ninth Circuit dismissed the officer's appeal in a §1983 excessive force case after the officer was denied summary judgment on qualified immunity grounds. The officer's appeal raised evidence-sufficiency arguments which did not fall within the limited scope of appellate jurisdiction for an interlocutory appeal.

Villanueva v. California, 986 F.3d 1158 (9th Cir. January 28, 2021)

The Ninth Circuit affirmed the denial of qualified immunity where an officer fired at a slow-moving vehicle. It found that case authority clearly established that deadly force used to stop a slow-moving vehicle is unreasonable where officers could have moved and avoided being struck.

Tabares v. City of Huntington Beach, 988 F.3d 1119 (9th Cir. February 17, 2021)

The Ninth Circuit reversed the district court's summary judgment for defendants on a state law negligence claim in a fatal shooting case. It concluded that California law provided more stringent constraints on police conduct than is provided by the Fourth Amendment. The case illustrates the material differences between the Fourth Amendment and California negligence law, including a stricter standard for the use of deadly force.

Hernandez v. Town of Gilbert, 989 F.3d 739 (9th Cir. March 4, 2021)

The Ninth Circuit affirmed the grant of qualified immunity on a canine deployment where the dog was used after continuous resistance by the plaintiff. To-wit: the plaintiff ignored over a dozen verbal commands and resisted multiple control holds. After the unsuccessful use of pepper spray and after six warnings were issued, the police ultimately deployed a canine. The dog bit the plaintiff’s arm for approximately 50 seconds. The court affirmed immunity because then-existing law did not clearly establish it was unconstitutional for officers to use minimal force at the beginning of an encounter, then escalate their force (to a canine) when other methods were unsuccessful.

Rice v. Morehouse, --- F.3d ---, 2021 WL 853301 (9th Cir. March 8, 2021)

The Ninth Circuit reversed a grant of qualified immunity on the use-of-force during a traffic stop. Police had stopped a subject for suspected DUI and, in response to the subject's refusal to exit the vehicle, policed pulled him out of the car. Upon doing so, they allegedly threw him to the ground. Construing the facts in the light most favorable to plaintiff, the panel found the subject never resisted. The court denied qualified immunity on the basis that preexisting precedent clearly established it was improper to use substantial force against a passively resisting person.

Kevin Allen
Allen Glaessner Hazelwood Werth
San Francisco, CA

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Tenth Circuit

Quintana v. Santa Fe Cnty. Bd. of Comm'rs, 973 F.3d 1022 (10th Cir. 2020)

Ricardo Jose Ortiz was booked at the Santa Fe Adult Detention Facility (ADF) on January 4, 2016. Defendant Nurse Anne Robinson conducted a medical intake exam, apparently without completing various intake forms. During the exam, Nurse Robinson determined that Ortiz was dependent on heroin and would likely undergo withdrawal. She therefore offered Ortiz a set of medications known as a "kick kit." The plaintiffs allege the kick kit was never administered. The other individual defendants—Corporal Gallegos and Officers Chavez, Valdo, Lopez, and Garcia—supervised or interacted with Ortiz in some capacity between his medical exam on January 4 and his death on January 7. By their own admission, they were aware that Ortiz was experiencing withdrawal symptoms. They did not attempt to provide any further medical assistance, and Ortiz did not request any further treatment. Following Ortiz's January 7^th death at ADF, Ortiz's personal representatives sued multiple individual ADF affiliates, alleging inter alia violations of his Fourteenth Amendment right to medical treatment under 42 U.S.C. §1983. The defendants moved to dismiss the first amended complaint, and the plaintiffs moved to amend their complaint to include a claim for municipal liability that was not in any prior complaint. In an order addressing both motions, the district court dismissed the Section 1983 claims, denied the plaintiffs leave to amend to include that municipal liability claim, and remanded the state-law claims. On appeal, the plaintiffs argued the district court erred in dismissing the §1983 claims against individual prison employees and in denying leave to amend.

The Tenth Circuit agreed that the plaintiffs had plausibly alleged that Officer Chavez violated Ortiz's clearly established constitutional right to medical care for acute symptoms related to his withdrawal from heroin. Per the Complaint, Chavez observed Ortiz on January 4 when the latter "appeared sick and vomited numerous times." Plaintiffs further alleged that "Mr. Ortiz informed Officer Chavez that he was withdrawing from heroin and was 'throwing up blood.'" The Tenth Circuit found that the presence of blood in vomit makes the presence of a serious medical need more plausible and more obvious, and that "taking the allegations as true, a jury could conclude the seriousness of the medical risks associated with vomiting blood would be obvious to any reasonable observer." However, the court could not conclude that plaintiffs plausibly alleged the other individual defendants violated Ortiz's clearly established constitutional right to medical care under these circumstances. Separately, the court concluded that the district court should not have denied the plaintiff leave to amend for reasons of futility. The district court determined that the plaintiff could not state a claim for municipal liability without first properly stating a claim against an individual, but the Tenth Circuit found that its precedent allows municipal liability even where no individual liability exists.

Emmett v. Armstrong, 973 F.3d 1127 (10th Cir. 2020)

While responding to reports of a fight at an Elks Club in Greybull, Wyoming, Officer Shannon Armstrong arrested Morgan Emmett for interfering with a peace officer. Officer Armstrong effectuated Emmett’s arrest by tackling him and then tasing him. Emmett brought a 42 U.S.C. §1983 suit, claiming that Officer Armstrong violated his Fourth Amendment rights by unreasonably seizing him when arresting him without probable cause and by using excessive force when using his taser to effectuate the arrest. Emmett also brought a failure-to-train claim against Police Chief Bill Brenner, in his official capacity. Emmett’s unreasonable seizure claim was based entirely on Officer Armstrong's failure verbally to identify himself as a police officer before seizing Emmett, thus precluding probable cause to believe Emmett knowingly interfered with a peace officer. The Tenth Circuit found that, because there were significant indicia from the circumstances that Officer Armstrong was a police officer, it was objectively reasonable for Officer Armstrong to believe that Emmett knew he was a police officer. Thus, because the arrest was not a constitutional violation, the Tenth Circuit affirmed the district court’s grant of summary judgment as to Emmett's unreasonable seizure claim.

Emmett's second claim alleged that Officer Armstrong's use of his taser constituted excessive force when it was used without adequate warning and after Emmet has ceased actively resisting. The Tenth Circuit agreed with Emmett that a jury could find that such conduct constitutes excessive force, and that it was clearly established at the time of these events that using a taser without adequate warning against a misdemeanant who has ceased actively resisting is unreasonable. Because Emmett's excessive force claim alleged a clearly established violation of the Fourth Amendment, the Tenth Circuit reversed the district court's grant of summary judgment as to Emmett's excessive force claim. Finally, the district court granted summary judgment to Chief Brenner on Emmett's third claim solely because it did not find a constitutional violation that could support a failure-to-train claim. However, because the Tenth Circuit reversed the district court's finding that no constitutional violation occurred insofar as the excessive force claim is involved, the court also reversed the grant of summary judgment on Emmett's failure-to-train claim against Chief Brenner in his official capacity to the extent that it related to Officer Armstrong's use of force.

Bond v. City of Tahlequah, Oklahoma, 981 F.3d 808 (10th Cir. 2020)

On August 12, 2016, Officers Brandon Vick and Josh Girdner shot and killed Dominic Rollice. The administrator of Dominic's estate brought a §1983 claim against Officers Vick and Girdner alleging they used excessive force against Dominic in violation of his Fourth Amendment rights. The district court granted summary judgment to Officers Vick and Girdner on the basis of qualified immunity. However, the Tenth Circuit reversed, finding that "a reasonable jury could find facts under which Officers Vick and Girdner would not be entitled to qualified immunity."

The Estate made three arguments why the officers were liable: (1) the use of deadly force was not justified when the officers opened fire because Dominic's movements were defensive; (2) Officer Girdner's final shot was unjustified because even if Dominic originally presented a threat, he was no longer a threat when Officer Girdner fired the final shot; and (3) even if the use of deadly force was justified at the instance of shooting, the officers were nonetheless liable because they recklessly and deliberately created the circumstances necessitating deadly force. The officers argued that Dominic posed a serious threat to their safety through his aggressive actions, justifying the use of deadly force, and that Dominic’s arming himself with a hammer was not the result of their actions.

The district court agreed with the officers—however, the Tenth Circuit found that "it did so based on findings from the video evidence that demonstrate a failure to view that evidence in the light most favorable to the Estate. First, the district court found Dominic precipitated the retreat into the garage. The Tenth Circuit concluded that a reasonable jury could view the video as showing that Officer Girdner took the first step forward, and Dominic responded by moving deeper into the garage. The district court also described Dominic's conduct in the garage, right before shots were fired, as "rais[ing] the hammer still higher as if he might be preparing to throw it, or alternatively, charge the officers." The Tenth Circuit found that, "[a]lthough this is one fair interpretation of the video, we are not convinced it is the only way it can be viewed. A reasonable jury could find that Dominic was assuming a defensive, rather than an aggressive, stance." The Tenth Circuit ultimately concluded that, if the facts were to be found by the jury in the light most favorable to the Estate, the officers would not be entitled to qualified immunity. The court relied on a line of cases starting with Allen v. Muskogee, 119 F.3d 837 (10th Cir. 1997), holding that "even when an officer uses deadly force in response to a clear threat of such force being employed against him, the Graham [v. Connor reasonableness] inquiry does not end there."

Fenn v. City of Truth or Consequences, 983 F.3d 1143 (10th Cir. 2020)

The City of Truth or Consequences, New Mexico, converted a community center for senior citizens into a visitor center operated by Spaceport America. Seeking leadership in the emerging space industry, New Mexico created the Spaceport as a public agency to attract investment in a planned space launch facility near Truth or Consequences. The facility, the Lee Belle Johnson Center, contained not only the Spaceport, but other tenants, including Geronimo Trail Scenic Byway and Follow the Sun Tours. A local resident, Ron Fenn, was unhappy with this change, and beginning in 2015 he publicly protested his opposition over a period of several years. Some of his protests were inside the building and included offensive behavior and unauthorized uses of the facility. Several tenants in the building, including then-Spaceport Director Daniel Hicks, complained to local law enforcement about Fenn's behavior and presence at the Center. Fenn was issued three no-trespass notices pursuant to New Mexico law over that time. Finally, in June 2017, Fenn was arrested and charged with trespass. The charges were later dismissed.

Fenn sued, asserting (1) a 42 U.S.C. §1983 civil rights claim for First Amendment retaliation against Hicks, arresting officer Michael Apodaca, and Police Chief Lee Alirez; (2) a §1983 claim for malicious prosecution against Apodaca and Alirez; (3) claims against Truth or Consequences for supervisory liability and under Monell v. Dep't of Soc. Servs.; (4) a §1983 claim for supervisory liability against Alirez; and (5) a state law claim for malicious abuse of process against Apodaca and Alirez. The district court dismissed all claims against all defendants, and the Tenth Circuit affirmed that dismissal. Fenn failed to establish a violation of his First Amendment rights for two reasons. First, he failed to show that he was engaged in constitutionally protected activity "because the Center is not the type of public forum in which the government must allow picketing and other forms of protest Fenn claims to have engaged in." Second, plaintiff failed to show the absence of probable cause for his arrest and prosecution, dooming his First Amendment and state law claims. Moreover, because Fenn could not establish a violation of a clearly established constitutional right, his Monell and supervisory liability claims failed.

Lance v. Morris, 985 F.3d 787 (10th Cir. 2021)

Plaintiff Dustin Lance alleged that he was denied medical treatment at a detention center in McAlester, Oklahoma. Mr. Lance needed treatment for priapism (a persistent, painful erection), but he had to wait three days for the treatment. He ultimately sued the sheriff in his official capacity and four jail guards in their personal capacities under 42 U.S.C. §1983, alleging a violation of the Fourteenth Amendment's Due Process Clause. The district court granted summary judgment to the defendants, however, the Tenth Circuit affirmed in part and reversed in part. Like the district court, the Tenth Circuit concluded that one of the jail guards (Edward Morgan) was entitled to qualified immunity because he did not violate Mr. Lance's constitutional right to medical care. Specifically, Morgan "had been contacted only once" regarding plaintiff's condition and had been "given only limited information." Plaintiff did not provide enough information to Morgan to suggest a serious medical need—as such, Morgan could not have been deliberately indifferent to plaintiff's condition.

However, the Tenth Circuit concluded that qualified immunity was unavailable to the three other jail guards: Mike Smead, Dakota Morgan, and Daniel Harper. There was evidence that each of these guards was in some way aware of the physical pain being suffered by plaintiff (i.e. that they had been aware of a substantial risk of serious harm and had knowingly disregarded that risk). Finally, the court concluded that the sheriff, Chris Morris, was not entitled to summary judgment in his official capacity because the factfinder could reasonably determine that the county's policies had violated plaintiff's constitutional right to medical care.

Estate of Madison Jody Jensen v. Tubbs, 989 F.3d 848 (10th Cir. Mar. 2, 2021)

Twenty-one-year-old Madison Jensen died while in the custody of the Duchesne County Jail. Jensen was arrested after her father alerted law enforcement to her drug use and possession of drug paraphernalia. Her estate brought an action for deprivation of civil rights under color of state law. 42 U.S.C. §1983. The district court granted summary judgment in favor of the county and qualified immunity to jail supervisors and staff. However, it denied qualified immunity to jail medical personnel, defendants-Appellants (Nurse) Jana Clyde and Dr. Kennon Tubbs. The district court held that genuine issues of material fact precluded qualified immunity on the Estate's claims of (1) deliberate indifference to serious medical needs against Nurse Clyde, and (2) supervisory liability against Dr. Tubbs.

The Tenth Circuit affirmed the denial of qualified immunity as to Nurse Clyde but reversed as to Dr. Tubbs. As to the former, the Estate based its claim of deliberate indifference to serious medical needs against Nurse Clyde on her failure to secure medical treatment despite obvious risks to Ms. Jensen's health. Viewing the facts in the light most favorable to the Estate, the evidence showed that Clyde was aware that: Ms. Jensen had opiates in her system; she looked sick and was "walking like a skeleton"; she had been soiling her sheets and had diarrhea; she had been vomiting for four days straight; and that she was unable to keep food or water down. The court believed that these circumstances — particularly her self-report that she had been vomiting for four days and could not keep down water — presented a risk of harm that would be obvious to a reasonable person, and that despite this obvious risk to Ms. Jensen, Ms. Clyde failed to take any reasonable measures.

As for Dr. Tubbs, the court noted that "the Supreme Court has denied the qualified-immunity defense to private prison guards…but has granted it to a private attorney retained by the government to conduct an internal investigation." The Tenth Circuit itself previously allowed a private doctor performing prisoner executions to claim qualified immunity. The court found that Dr. Tubbs was carrying out government responsibilities (namely, providing medical services to inmates) but was merely doing so on a part-time basis. He was working alongside the jail's officers and Nurse Clyde, whose full-time job was to monitor and provide some care for the inmates. Had Dr. Tubbs been working as a doctor for the county on a full-time basis (like Nurse Clyde), "he would have certainly been able to raise a qualified-immunity defense." Thus, common law principles supported Dr. Tubbs' ability to raise a qualified-immunity defense. Moreover, the court observed that private doctors providing services at a jail "act within a government system, not a private one," and "market pressures at play within a purely private firm simply do not reach them there."

Tanner v. McMurray, 989 F.3d 860 (10th Cir. March 2, 2021)

Plaintiff Tanner was approximately 35 weeks pregnant and in custody at the Metropolitan Detention Center in Bernalillo County, New Mexico when she went into the final stages of her pregnancy. Over the ensuing thirty hours, commencing with the point at which her water broke, defendants—employees of a nationwide private medical contractor—purportedly ignored and minimized her symptoms, refused to transport her to a hospital, and failed to conduct even a cursory pelvic examination. After thirty hours of pain and trauma, Tanner gave birth to her son. The child was born with his umbilical cord wrapped around his neck. Tanner initiated an action under 42 U.S.C. §1983 for the death of her child. On motion for summary judgment brought by the defendants, Timothy McMurray, MD, and Adriana Luna and Taileigh Sanchez, RNs, the district court granted the requested relief on the basis of qualified immunity.

The Tenth Circuit reversed on "the question of whether employees of a national private corporation providing medical services in a correctional institution can assert qualified immunity." While noting that, in the Tubbs case discussed above, the court "allowed a sole practitioner doctor who was engaged part time by a county jail to assert the defense" of qualified immunity, the Tenth Circuit found that "[o]ther circuits that have considered the question presented in this appeal have concluded with near [but not complete] uniformity that corporate medical contractors are not entitled to assert qualified immunity." The Tenth Circuit concluded "that neither late 19th century common law nor present-day policy considerations counsel in favor of extending qualified immunity" in the manner sought by defendants.

Mark D. Standridge
Jarmie & Rogers, P.C.
Las Cruces, New Mexico

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Eleventh Circuit

National Association of the Deaf v. State of Florida, 980 F.3d 763 (11th Cir. 2020)

One individual and an organization of deaf or hard of hearing individuals sued the State of Florida and others claiming violations of the Americans with Disabilities Act (ADA) and the Rehabilitation Act for not providing closed captioning of certain public meetings including sessions of the Florida legislature. The State of Florida raised the defense of sovereign immunity under the Eleventh Amendment. The Eleventh Circuit held that Congress had the power to effectuate its intent to abrogate sovereign immunity as expressed in Title II of the ADA. The Eleventh Circuit analysis includes identifying the rights Congress ought to enforce in the legislation, determining any history of unconstitutional discrimination supporting Congress' finding, and determining whether the legislation was an appropriate response to such history and a pattern of unequal treatment. Here, the 11th Circuit affirmed the district court's holding that Congress had validly abrogated sovereign immunity in Title II of the ADA.

L.S. ex rel Hernandez v. Peterson, 982 F.3d 1323 (11th Cir. 2020)

Students who were present but not physically injured in the Parkland school shooting brought suit against Broward County and five individual public officials based on their response to the school shooting. One defendant recognized Nikolas Cruz as a potential school shooter on the day of the shooting, but allowed him to enter the school anyway while he radioed other school personnel. Another school official stood with others outside the school with guns drawn while the shooting took place, but did not attempt to enter to stop the shooting. The 11th Circuit affirmed the district court's grant of a motion to dismiss on the claim brought under the Due Process Clause of the 14th Amendment. The 11th Circuit held that an official has a duty to protect individuals from harm by third parties only when the individuals are in the official's custody, and schoolchildren are not in a custodial relationship with the state. Absent a custodial relationship, conduct by a government actor only violates substantive due process when it can be characterized as "arbitrary or conscience shocking in a constitutional sense." Peterson at 1330. The 11th Circuit noted that in a public school setting, it has allowed substantive due process claims to proceed only where they involved intentional, obviously excessive corporal punishment.

Otto v. City of Boca Raton, Florida, 981 F.3d 854 (11th Cir. 2020)

Licensed marriage and family therapists brought an action to enjoin enforcement of city and county ordinances which banned counseling aimed at changing a minor's sexual orientation, gender identity or expression. Reversing the district court, the Eleventh Circuit determined first that the ordinances were content-based restrictions since enforcement depended on what was said, and therefore were subject to strict scrutiny. Content-based restrictions are presumptively invalid, and the Eleventh Circuit noted that the First Amendment "exists precisely so that speakers with unpopular ideas do not have to lobby the government for permission before they speak." Otto at 864. After determining that the ordinances did not survive strict-scrutiny analysis, the 11th Circuit remanded the case to the district court for entry of a preliminary injunction.

Michael D. Strasavich
Burr & Forman LLP
Mobile, Alabama

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