Preliminary Injunction On New Title IX Rules

The United State Supreme Court denied an application for a partial stay on a new Title IX rule implementing changes that redefined sex discrimination to “include discrimination on basis of sex stereotypes, sex characteristics, pregnancy related conditions, sexual orientation, and gender identity.  Several states and parties challenged and a sought preliminary injunction against the new rule arguing that the rule change exceeded the statutory text enacted by Congress.  The burden is on the Government to show the likelihood of success on its severability argument.  The Government did not provide the court with a sufficient basis to disturb the lower courts’ interim conclusions that the three provisions that were likely to be found unlawful are intertwined with and affect other provisions of the rule.  Department of Education v. Miguel Cardona, SCOTUS 24A79, 08/16/2024)

Regulating Short-term Rentals At The Local Level

IMLA recently had a webinar on regulating short-term rentals.  The webinar was hosted by Katie Hodgdon, Counsel for Association of Towns of the State of New York.  She did a fantastic job discussing the complex litigation around short-term rentals and discussed strategies for drafting laws that will survive scrutiny.  Some of the legal challenges local government have faced include challenges claiming violations of Due Process, Unreasonable Search and Seizure, Takings Clause, Dormant Commerce Clause, Contract Clause, Equal Protection Clause, and First Amendment.  Over the next year we will look at the issues Katie Hodgdon discussed in her webinar and look at the cases.  Ms. Hodgdon did a fantastic job and her presentation and her work on this issue is very impressive. 

Short-Term Rental Residency Requirement

In 2016, the city of New Orleans changed its rental laws to permit and regulate short-term rentals (STR) of homes for less than 30-day time periods.  After several years it was determined that short-term rental homes in residential neighborhoods were having a negative impact on the city and that the issues required the city to revise its short-term rental regulations.  One of the changes the city imposed included a residency requirement for any STR.

The changes to the STR regulations in New Orleans resulted in multiple legal challenges.  The challenges alleged that the regulation changes resulted in a violation of the Taking Clause because the property owners had a vested interest in the renewal of the STR license, a violation of the Commerce Clause because the changes discriminated against interstate commerce, and the advertising restrictions violated the First Amendment as a prior restraint on protected speech.

The court focused its energy on the Takings Clause and the Commerce Clause issues.

Takings Clause:  The 5^th Circuit Court of Appeals did not find there was a taking under the Taking Clause.  The court found that the regulation clearly provided that an STR license is a privilege, not a right.”  Even an applicant who met the statutory requirements for a license was not entitled to one. The ordinance also stated that STR licenses “may be revoked or not renewed based on non-compliance with the requirements of the Comprehensive Zoning Ordinance, or the requirements provided” in the ordinance itself.  On this issue the plaintiffs lacked the sort of ownership in their STR licenses that could support a “legitimate claim of entitlement” to money damages when their licenses were not renewed.  Additionally, the licensing process had only existed for a year before the city started to change its policies and therefore there did not exist a rooted custom or practice that amounted to a property interest or right.

Commerce Clause: The Commerce Clause authorizes Congress “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const. art I, § 8, cl. 3. “Although the Constitution does not in terms limit the power of States to regulate commerce,” the Supreme Court has “long interpreted the Commerce Clause as an implicit restraint on state authority, even in the absence of a conflicting federal statute.  A state (1) “may not discriminate against interstate commerce” and (2) may not “impose undue burdens on interstate commerce.”

 If a law discriminates against interstate commerce, it may be upheld “only if it advances a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives.” If there are “any available alternative methods for enforcing the government’s legitimate policy goals,” the law is unconstitutional.

The City’s residency requirement discriminated against interstate commerce.  A law is discriminatory when it produces “differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter.” Hignell-Stark v. City of New Orleans, (5^th Circuit 21-30643, 8/22/24)

Use of Pepper Spray Without Warning

Officer Hemsted and Officer Ulin were sent to investigate a complaint that Christopher Drew was harassing his neighbor.  When Officer Hemsted and Ulin arrived on scene, they contacted the complaining party which informed the officers that Drew had threated to kill her and blow the place up.  Officer Hemsted and Ulin also contacted an additional witness who was the manager where the victim lived and where Drew lived.  The manager advised that Drew was a drunken idiot who harasses single women all day and the other residents routinely call the police about Drew’s behavior.  The manager warned the officers that Drew would likely get into their personal space.  When officers contacted Drew, he was in a verbal argument with a woman who when officers arrived fled from Drew’s residence.  Officers then heard Drew issue a verbal threat toward the woman.  Officer Hemsted then contacted Drew, grabbed Drew’s arm, and asked Drew if he had any guns or drugs. Drew advised the officers that if they touched him again, they were going to have a problem.  Officer Hemsted requested Drew place his hands behind his back.  Drew verbally refused and Officer Hemsted sprayed Drew with mace.  Drew was subsequently convicted of second-degree harassment.  Drew sued on the grounds that the use of mace in this matter was excessive.  The district court found the use of force reasonable.  Drew appealed the district court’s judgment.

Officers are entitled to qualified immunity unless (1) the facts demonstrate the deprivation of a constitutional or statutory right and (2) the right was clearly established at the time of the deprivation.  To be clearly establish the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates it.  Officers are entitled to qualified immunity unless the existing precedent squarely governs the specific facts at issue.  The court should consider other facts such as the severity of the crime and whether the party is actively resisting arrest or attempting to evade arrest by flight.

In prior cases the 8^th Circuit Court of Appeals has found that an officer “may act unreasonably” if he pepper-sprays a suspect posing a “non-immediate safety threat without warning,” and that force is “least justified” against a “non-resisting, non-fleeing individual suspected of a completed, non-violent misdemeanor” and the officer has not first attempted to use other force to secure compliance.  However, this matter was very different.  The suspect in this matter had threatened to kill a woman, was a persistent problem for the building, officers were warned defendant was likely under the influence, would get into their personal space, and they observed him in a verbal altercation and threaten a woman.  Under those circumstances it was not clearly established that an officer would be prohibited from the use pepper spray to arrest a person who is suspected of a serious crime, has made several violent threats, and is noncompliant.  Drew v. City of Des Moines, (8^th Circuit 23-2656, 8/2/24)

Duty Of Care For Detained Defendants

Johua Vogt died of a drug overdose while detained in a county jail.  His daughter sued claiming that the officers deliberately disregarded his medical condition.  The district court granted summary judgment for the officers.

Vogt was arrested and transported to jail.  According to the arresting officer Mr. Vogt did not appear under the influence.  Mr. Vogt was strip searched and drugs were not observed on his person.  While Mr. Vogt was being booked an officer observed that Mr. Vogt was sweating, fidgeting, and shaking.  Mr. Vogt denied being on drugs and said he was suffering from anxiety.  Shortly afterwards, Mr. Vogt had difficulty walking and required assistance to be moved into the holding cell.  Mr. Vogt never requested medical assistance.

A detention officer suspected Mr. Vogt was showing signs of being impaired by drugs and contacted a supervisor.  Mr. Vogt denied being on drugs and claimed he was suffering a panic attack.  The detention officer performed breathing exercises with Mr. Vogt and performed 8 wellness checks on him.  Almost an hour after being brought to the jail and booked, Mr. Vogt was found on the ground of his jail cell on his back, shaking, and then he stopped breathing.  He was pronounced dead an hour later.

The video of the detention was not retained by the jail.  The court as the result of the spoilation of evidence recommended that the failure to preserve the video could be considered by the jury and the jury could make permissive adverse inference of what the video would have shown if it had been preserved.

Even though a jury could make permissive adverse inferences “to succeed the plaintiff must demonstrate that a pretrial detainee had an objectively serious medical need that the defendants knew of and yet deliberately disregarded.”  A medical need is objectively serious if it has been diagnosed by a physician as requiring treatment or if is so obvious that even a layperson would easily recognize the necessity for a doctor’s attention.”  The standard requires more than negligence or gross negligence but less than purposefully causing or knowingly bringing about a substantial risk of serious harm.

While it is possible that the officers could have done more to prevent the death of Mr. Vogt there is insufficient evidence to show there existed a deliberate disregard.  Even if the court considered the absence of the video evidence and drew a permissive adverse inference that does not alter the analysis that the officer did not act with deliberate disregard.  Vogt v. MEnD Correctional Care Inc., (8^th Circuit 23-3359, 8/16/2024)

Spider Bite Deliberate Disregard Of Care

Humes was arrested by police on felony drug charges and was booked into the White County Detention Center.  While Humes was being detained he was bitten on his right hand by a spider.  Humes repeatedly notified officers in the detention facility that he had suffered an injury and he requested medical attention.  The detention officers failed to render, seek, or refer Hume for medical attention for the injury.  During this time Humes arm swelled and eventually Humes hand and arm had swollen to the size of a small watermelon which oozed pus and caused significant pain.  Humes then submitted a written complaint about his lack of medical care.  After submitting his written complaint Humes was transported to the emergency room at White County Medical Center where he was diagnosed with a staph infection and provided antibiotic treatment and released back into the custody of the jail.  Humes conditioned worsened and he returned to White County Medical Center where a CT scan revealed he had an abscess on his right hand.  The hospital had to perform an emergency surgery to treat the abscess.  While Humes was in the hospital he was released from custody.  Humes subsequently filed a civil right suit alleging his constitutional rights had been violated by the deliberate indifference to his serious medical needs by the jail staff.  The district court found that two employees were not entitled to qualified immunity at this stage.  The employees appealed the district court’s denial of qualified immunity.

 The Eighth Amendment proscribes deliberate indifference to the serious medical needs of prisoners and the Fourteenth Amendment extends this principle to pre-trial detainees like Humes. To prove his deliberate-indifference claim, Humes must show that: “(1) he suffered from an objectively serious medical need, and (2) defendants knew of the need yet deliberately disregarded it.” A serious medical need is one that has been diagnosed by a physician as requiring treatment or one that is so obvious that even a layperson would easily recognize the necessity for a doctor’s attention.

The district court found the record adequately supported that Lieutenant Jones and Deputy Gray saw Humes and his wound over the course of three days. They saw his hand and arm continue to swell larger, and, at some point, his hand and arm were the size of a small watermelon and oozing pus. They knew based on observations of Hume and his complaints that he was in significant pain. Yet they took no action to help Humes. The district court held a jury could find that an infection like Humes’s constitutes a medical need so obvious

To overcome Lieutenant Jones and Deputy Gray’s assertion of qualified immunity, Humes also must show that “every reasonable official” in their position “would have understood” that their failure to take action “violated that right.” It is not necessary to have a prior case “directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.”  The constitutional question here “beyond debate” and there exists similar cases on the issue.  Based on prior precedent, any reasonable official in Lieutenant Jones’s or Deputy Gray’s position would have understood that a large and growing infection of the type that oozes pus and causes significant, worsening, and out-of-the-ordinary-sized swelling constitutes a medical need that is so obvious that even a layperson would easily recognize the necessity for a doctor’s attention.  Humes v. White County, Arkansas, (8^th Circuit 23-2202; 7/31/2024)

City Manager Racial Discrimination Claim Survives Summary Judgment

In 2017, Roland McCarthy was hired as the Finance Director of Cordele, Georgia and 2021 he was promoted to the City Manager position.  Cordele, Georgia is a predominantly African American community in Georgia.  Seven months after McCarthy’s promotion Joshua Deriso began his campaign for chairman of the City Commission.  Deriso’s election campaign focused on Deriso’s belief that elected city officials and employees hired by the city needed to better reflect the African American community.  Deriso frequently stated his goal was to replace Caucasian employees with African American employees.  In a Facebook post Deriso stated he would replace McCarthy with a City Manager of color within 90 days of taking office.  In another post he stated the City Manager should be Black.  Deriso was elected to office but before he took office the outgoing commissioners voted to renew McCarthy’s employment as City Manager for an additional year.  After the newly elected commissioners were sworn in, they terminated McCarthy’s employment as City Manager and replaced him with a black woman.  Deriso did not participate in that vote because as chairman he only votes to break ties. When McCarthy was informed that he was going to be replaced with an African American candidate he asked if he would be able allowed to return to his position as City Finance Director.  McCarthy was informed by Deriso and Commissioner Royce he would not be allowed to return to that position because “he does not look like them.” McCarthy filed a claim and alleged that Deriso orchestrated the decision to terminate him due to his race.  The district court dismissed McCarthy’s claim on the grounds that he failed to state a plausible claim of racial discrimination against the City because he failed to allege that the “Commission itself” acted with a racially discriminatory motive because Deriso did not participate in the vote to remove McCarthy.  Additionally, the statement made by Commissioner Royce was insufficient to show that the entire commission acted with discriminatory motive. 

When the employer is a municipality, the employee must allege that the racial discrimination was a municipal “policy or custom.” An employment decision, such as termination,” qualifies as a municipal policy if the “decisionmaker ‘possessed final authority to establish municipal policy with respect to the action.’”  When the final policymaker for a challenged employment decision was a multimember body, the plaintiff must allege that “a majority” of the members voted in favor of the decision “for an unconstitutional reason.” When policymaking authority rests with a collegial body “as an entity,” allegations that fewer than a “majority” of the members harbored unconstitutional motives are “insufficient to impute an unconstitutional motive” to the entity “as a whole.”

The 11^th Circuit Court of Appeals strongly disagreed with the district court on whether there existed sufficient evidence for the matter to proceed.  The court stated the evidence presented which included a campaign to fire McCarthy for being white and replacing him with an African American candidate and the immediate implementation of that plan upon taking office moved McCarthy’s race discrimination claim across the line from conceivable to plausible. The court remanded the matter.  McCarthy v. City of Cordele, (11^th Circuit 23-11036, 7/31/2024)