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Posts Tagged ‘#SCOTUS’

Split in the Circuits May Force SCOTUS to Revisit Kingsley

Posted on: March 14th, 2019

By: Ali Sabzevari 

In Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), the Supreme Court held that a pretrial detainee may prevail on a § 1983 excessive force claim if he or she shows that the force used was objectively unreasonable, regardless of whether the officer had a subjective intent to cause the detainee harm. In reaching this decision, the Court granted more protection to pretrial detainees under the Fourteenth Amendment’s Due Process Clause than is given to convicted prisoners under the Eighth Amendment, which still requires proof of a subjective intent to cause harm before there is a constitutional violation. This make sense because a pretrial detainee is innocent until proven guilty, and so the detainee cannot be subjected to any form of punishment. On the other hand, it is well-settled that a convicted prisoner may be punished so long as the punishment is not “cruel and unusual” under the Eighth Amendment.

Recently, we have seen an uptick in cases whereby pretrial detainees are contending that the holding in Kingsley applies to any and all § 1983 claims, not just those founded on allegations of excessive force. But this is not the holding in Kingsley. Nevertheless, the Ninth Circuit in Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) applied such an interpretation, opening the door for this creative argument. Other circuits, such as the Eleventh Circuit, have denied such an extension despite recent opportunities to do so. Johnson v. Bessemer, 741 F. App’x 694, 699 n.5 (11th Cir. 2018).

The fact remains that the Supreme Court has not ruled on whether to extend this objective reasonableness standard of review to cases of pretrial detainees which do not involve the use of excessive force, e.g., cases challenging medical treatment or conditions of confinement. The current circuit split could mean that the issue might be back in front of the Supreme Court at any time.

If you have any questions or would like more information, please contact Ali Sabzevari at [email protected].

 

The Supreme Court Sets Groundwater Pollution in its Sights

Posted on: February 20th, 2019

By: Ze’eva Kushner

Yesterday, the United States Supreme Court decided to hear an appeal from the Ninth Circuit’s decision in Hawai’i Wildlife Fund et al. v. County of Maui, 886 F.3d 737 (9th Cir. 2018). The Supreme Court will be hearing this case in the Fall to resolve a circuit split regarding whether discharging pollution that travels underground before emerging into an ocean, river or other major waterway requires a permit under the Clean Water Act.

Congress passed the Clean Water Act in 1972. The goal of the Clean Water Act is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). One of the primary provisions of the statute makes it unlawful for anyone to discharge a pollutant, meaning adding pollution, to the waters of the United States, including the territorial seas. 33 U.S.C. §§ 1362(12), (7).

The provisions of the Clean Water Act have been interpreted by a number of courts over the years, with the coverage of groundwater pollution being a thorny issue for some time. In February 2018, the Ninth Circuit held that Maui County had to comply with the permitting requirement of the Clean Water Act in order to continue to dispose treated water through underground wells after it was shown that the treated water made its way into the Pacific Ocean through fissures in the ocean floor.

The Fourth Circuit made a similar finding a few months later in a case involving a gasoline pipeline spill in South Carolina when it determined that the Clean Water Act covered claims that the spill contaminated nearby creeks and wetlands after traveling through groundwater.

However, in September 2018, the Sixth Circuit changed direction when it ruled on two cases involving the pollutants released by coal ash ponds, holding that the Clean Water Act cannot be used to regulate pollution that travels through groundwater before reaching navigable waters such as a river or ocean.

Thus, it is up to the Supreme Court to resolve the debate regarding how direct of a connection there must be between a source of pollution and the waters that get polluted. Whether a pollutant that goes underground before making its way into a major waterway is subject to the Clean Water Act will have a major impact on industries across the country.

If you have any questions or would like more information, please contact Ze’eva Kushner at [email protected].

Can Governments be Liable for Mass Shootings under the Constitution?

Posted on: February 11th, 2019

By: Phil Savrin

The recent tragedies of mass shootings have spawned litigation over the civil liabilities of state governments for failing to protect members of the public from harm, particularly when there were advance warning signs that police departments overlooked or ignored. To evaluate whether States can be liable under the Constitution for such conduct we need to reach back 30 years to a decision by the Supreme Court called DeShaney. In that case, county officials had allowed an abused child to remain in a household despite knowledge of mistreatment, after which the boy was left permanently disfigured. In considering a civil rights claim brought on his behalf under the due process clause, the Supreme Court reasoned that the Constitution places limitations on the government’s ability to act and does not affirmatively require it to provide services that benefit the public. It is up to the individuals States to allocate resources to provide for public safety, in other words, as opposed to an obligation mandated by the Due Process Clause. That said, the Supreme Court reasoned that it is only when the State takes some action that puts a person in peril that the Constitution imposes “some corresponding duty to assume some responsibility for his safety and general well-being.”

Cases applying DeShaney’s reasoning are often heart-wrenching, as they tend to involve very egregious injuries that could have been avoided had law enforcement officers acted on knowledge they possessed. The most extreme example applying DeShaney can be found in the Supreme Court’s 2005 decision in Town of Castle Rock, where police officers refused the desperate pleas of a citizen to arrest her estranged husband who had violated a restraining order, resulting in the father’s murder of the couple’s three daughters. These harms could have been avoided had the State acted to intercede, yet it is only when the State by its conduct affirmatively puts the person in danger that the State has a constitutional obligation to protect that individual from harm.

Which brings us to the question of mass shootings such as the incidents at the Pulse nightclub in 2016 where a gunman killed 49 people or the high school in Florida in 2018 where a student opened fire killing 17 persons. In lawsuits that followed, allegations were made that government officials either ignored warnings or intentionally failed to act, thereby violating the constitutional rights of the victims. In both circumstances, however, the federal courts applied DeShaney to conclude that without danger created affirmatively by the State’s conduct, there is no constitutional right to protection where the harm begins and ends with the actions of a private citizen.

The absence of a constitutional claim in these circumstances does not, of course, mean that there can be no remedy of any sort. What these cases hold instead is that any such remedy exists by reference to state law as the federal Constitution is a bulwark against governmental interference in the public arena and is not a guarantor of safety for the citizenry.

If you have any questions or would like more information, please contact Phil Savrin at [email protected].

Supreme Court to Revisit Liability Under Rule 10b-5 – Will Prospective Justice Kavanaugh Weigh In?

Posted on: July 25th, 2018

By: Ted Peters

Section 10(b) of the Securities Exchange Act, and Rule 10b-5 promulgated under it, makes certain conduct in connection with the purchase or sale of any security unlawful.  Specifically, Rule 10b-5(a) prohibits the use of any “device, scheme, or artifice to defraud.”  10b-5(b) prohibits the use of any “untrue statement of a material fact” or the omission of any “material fact necessary in order to make the statements… not misleading.”  And 10b-5(c) prohibits “any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person.”

In Janus Capital Group, Inc. v. First Derivative Traders, 131 S. Ct. 2296 (2011), the United States Supreme Court addressed whether a mutual fund investment adviser could be held liable under Rule 10b-5 for false statements included in its client mutual funds’ prospectuses.  The Court concluded that the adviser could not be held liable under the rule because it did not make the statements in the prospectuses.

In Lorenzo v. Securities and Exchange Commission, 872 F.3d 578 (2017), the D.C. Circuit Court of Appeal considered whether a registered representative of a broker-dealer, who allegedly emailed false and misleading statements prepared by his boss to investors, could be found liable under Rule 10b-5.  Initially, the case was tried before an Administrative Law Judge who concluded that Lorenzo’s boss had drafted the emails in question; Lorenzo did not read the text of the emails; and Lorenzo had “sent the emails without even thinking about the contents.”  The judge also found that the emails were sent “at the request” of Lorenzo’s boss.  Notwithstanding these findings, the judge nevertheless concluded that Lorenzo had willfully violated securities laws (i.e., that Lorenzo had acted with an intent to deceive, manipulate or defraud).  As a sanction, the judge not only fined Lorenzo, but also imposed a lifetime suspension effectively barring him from the securities industry.

Lorenzo appealed the ruling before the Securities Exchange Commission.  The Commission affirmed, concluding that Lorenzo himself was “responsible” for the contents of the emails his boss asked him to send even though it was undisputed that Lorenzo’s boss had prepared the contents of the emails and that Lorenzo had simply “cut and pasted” the contents into the emails at issue.  Notably, the SEC found that Lorenzo’s conduct triggered liability under each of the subparts of Rule 10b-5, including 10b-5(b) which, under Janus, necessarily required an affirmative finding that Lorenzo had actually “made” the statements in question.

Lorenzo next appealed to the D.C. Circuit Court.  On September 29, 2017, a divided court upheld the SEC’s determination.  The court agreed that there was substantial evidence that the statements in Lorenzo’s emails were false or misleading and that Lorenzo possessed the requisite intent to mislead, deceive or defraud. However, the court disagreed with the SEC’s determination that Lorenzo was the “maker” of the statements as required by Rule 10b-5(b).  “We conclude that Lorenzo did not ‘make’ the false statements at issue for purposes of Rule 10b-5(b) because Lorenzo’s boss, and not Lorenzo himself, retained ‘ultimate authority’ over the statements.” [Citing Janus.]  On this basis, the court set aside the sanctions and remanded the case to enable the SEC to reassess appropriate penalties.

Judge Brett Kavanaugh, the current presidential nominee to fill the vacancy left by Justice Kennedy, penned a strongly worded dissent.  Kavanaugh criticized the conclusion reached by his colleagues that the “scheme liability” provisions of Rule 10b-5(a) and (c) may be used to find liability even where the defendant is not the “maker” of the statements (and thus not liable under 10b-5(b)).

On June 18, 2018, the U.S. Supreme Court granted the petition for writ of certiorari.  The question before the Supreme Court is simple: Can a defendant be held liable under the so-called scheme liability provisions of Rule 10b-5(a) and (c) in connection with using false or misleading statements, even if that defendant is not the “maker” of the statements?  That the Court accepted certiorari certainly suggests that the Court desires to further define the scope and limitations of Rule 10b-5.

Should Kavanaugh be confirmed as the next Supreme Court Justice, it remains to be seen whether he will recuse himself on the grounds that he heard the case below.  If he does, then the Court could well end up with a 4-4 split, which would effectively affirm the lower court’s ruling.  The Court’s four more liberal justices (Breyer, Ginsburg, Sotomayor and Kagan) each dissented from Janus.  On the other hand, if Kavanaugh is confirmed and does not recuse himself, the majority of the Court will likely endorse a more restrictive interpretation of scheme liability under Rule 10b-5.

If you have questions or would like more information, please contact Ted Peters at [email protected].

Eleventh Circuit Again Rejects Claim That Title VII Prohibits Discrimination On The Basis Of Sexual Orientation

Posted on: July 23rd, 2018

By: Bill Buechner

In Bostock v. Clayton Co. Bd of Comm’rs, 723 F. App’x 964 (11th Cir. 2018), the Eleventh Circuit again held that Title VII does not prohibit discrimination on the basis of sexual orientation.   In doing so, the panel relied on prior circuit precedent in Evans v. Ga. Reg’l Hosp., 850 F.3d 1248 (11th Cir.), cert. denied, 138 S.Ct.  557 (2017) and Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979).    Jack Hancock and Bill Buechner are representing the County in the case.

Last week, the Eleventh Circuit issued an order denying a request from a member of the Court for rehearing en banc.  Bostock v. Clayton Co. Bd. of Commissioners, 2018 U.S. App. LEXIS 19835,  2018 WL 3455013 (11th Cir. July 18, 2018).   The order was notable because it was accompanied by a dissent by two circuit judges sharply criticizing their colleagues for not agreeing to rehear the case en banc.

The plaintiff in Bostock had already filed a petition for writ of certiorari with the United States Supreme Court, and the County will be filing a response to that petition in the next few weeks.   The employer in Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) (en banc) also has filed a petition for writ of certiorari with the Supreme Court seeking review of the Second Circuit’s ruling that Title VII does prohibit discrimination on the basis of sexual orientation.

We will report on the outcome of these pending petitions for writ of certiorari with the Supreme Court.

If you have any questions or would like more information, please contact Bill Buechner at [email protected].