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Archive for the ‘Government Law’ Category

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].

Can You Even Do That? What Happens When a Judge is Sued and the Defense of Absolute Judicial Immunity is Raised

Posted on: February 6th, 2019

By: Jake Loken

It is a rare sight to see a judge being sued, so what happens when one is? The process is generally the same as any other lawsuit, but one important doctrine can get in the way: absolute judicial immunity.

The doctrine of absolute judicial immunity was recently discussed in McCullough v. Finley, 907 F.3d 1324 (11th Cir. 2018). In McCullough, residents of Alabama sued municipal judges, along with a mayor and two police chiefs. The residents alleged the judges had violated federal anti-peonage statutes, which prohibit forced labor by coercive means, and the law of false imprisonment by “unlawfully depriving them of their liberty for their failure to pay fines.”

In response, the judges asserted absolute judicial immunity, but the district court denied immunity. Normally, only final decisions can be appealed, but when a district court denies the defense of absolute judicial immunity, this denial may be immediately appealed as a “final decision.” The denial is a “final decision” because if the court would allow the defense of immunity to stand, then the case would end, as immunity would prevent the suit from moving forward against the judges.

In reviewing the denial of absolute judicial immunity, the Court worked through a four-factor analysis “to determine whether the nature and functions of the alleged acts [were] judicial.” The Court found that the judges’ acts were judicial as they involved sentencing the residents to jail time, which is a normal judicial function that occurred in court.

The Court also determined the judges did not act in the “‘clear absence of all jurisdiction,’” because “[a] judge acts in ‘clear absence of jurisdiction’ only if he lacked subject matter-jurisdiction.” The Court made it clear that only in “rare circumstance[s]” would immunity not apply.

When a judge is sued, the judge can raise the powerful defense of absolute judicial immunity. So to answer the question found in the title, “can you even do that?”—with “that” being sue a judge—yes, a judge can be sued, but absolute judicial immunity can stop the suit in its tracks.

If you have any questions about this case, absolute judicial immunity, or other types of immunity, please contact Jake Loken at [email protected].

School Shootings: Is There a Constitutional Duty to Protect Students?

Posted on: January 16th, 2019

By: Jake Daly

Sadly, our nation’s schools are not free from shootings and other violent crimes. When such crimes occur on private property, the laws of many states provide the victims a remedy (money damages) against the owner of the property and/or the operator of the business located on the property. But what about crimes that occur on public property, particularly a school campus?

For example, Nikolas Cruz killed 17 students and school officials and injured 17 more during a shooting rampage at Marjory Stoneman Douglas High School in Parkland, Florida, on February 14, 2018. Fifteen students who survived the incident, but who claim to have suffered psychological injuries because of it, sued Broward County, Andrew Medina (a school monitor), Robert Runcie (school superintendent), Scott Israel (Broward County Sheriff), Jan Jordan (captain with the Broward County Sheriff’s Office), and Scot Peterson (school resource officer) for violating their substantive due process rights under the Fourteenth Amendment to the United States Constitution. Specifically, the plaintiffs alleged that the defendants had a constitutional duty to protect them from Cruz and that they violated this duty by intentionally disregarding warnings about Cruz, by maintaining a policy of allowing “killers to walk through a school killing people without being stopped,” and by failing to provide adequate training to school officials. The defendants denied liability on the ground that there is no constitutional duty to protect students from being harmed by third parties.

The lawsuit was filed in the United States District Court for the Southern District of Florida and was assigned to Judge Beth Bloom, who was nominated by President Barack Obama and confirmed by the Senate in 2014. In her order granting the defendants’ motions to dismiss, Judge Bloom relied on United States Supreme Court precedent holding that the Due Process Clause is “a limitation on the State’s power to act, not . . . a guarantee of certain minimal levels of safety and security.” In other words, “nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors,” such as Cruz. Nevertheless, the Due Process Clause does impose a duty on state actors to protect people who are in their custody from harm by third parties. But, as Judge Bloom ruled, this duty does not apply to this case because students are not considered to be in the custody of the state such that they have been deprived of their ability to take care of themselves. Accordingly, the defendants did not violate the plaintiffs’ substantive due process rights.

This case serves as a good reminder that the defendant in any case must have owed the plaintiff a legal duty to act or refrain from acting in a specific way. A moral duty will not suffice. Liability cannot be based on how innocent or sympathetic the plaintiff is. Nor can liability be based on the fact that a tragic event has occurred. There is no question that the plaintiffs in this case were innocent and “deserving,” but that is not enough. There must have been a legal duty. The plaintiffs in this case lost because there is no constitutional duty owed by school officials to protect students from harm inflicted by third parties. To some, this rule may be seen as unfair and contrary to common sense, but there are good policy reasons for it. After all, the purpose of the Due Process Clause was to protect people from the state, not to ensure that the state protected them from each other.

For additional information, please contact Jake Daly at [email protected] or (770) 818-1431.

“Sanctuary Cities” Get a Reprieve For Now

Posted on: January 10th, 2019

By: Pamela Everett

As many city, county and state attorneys are aware, in 2017 the US. Department of Justice (DOJ) added three conditions to the application process for the Edward Byrne Memorial Justice Assistance Grant (“Byrne JAG”) program in an effort to eliminate so called sanctuary cities. The Byrne JAG program originated from the Omnibus Crime Control and Safe Streets Act of 1968,  which created grants to assist the law enforcement efforts of state and local authorities. Under the Byrne JAG program, states and localities may apply for funds to support criminal justice programs in a variety of categories, including law enforcement, prosecution, crime prevention, corrections, drug treatment, technology, victim and witness services, and mental health.

The first condition, called the “Notice Condition” requires grantees, upon request, to give advance notice to the Department of Homeland Security of the scheduled release date and time of aliens housed in state or local correctional facilities. The second condition, called the “Access Condition,” requires grantees to give federal agents access to aliens in state or local correctional facilities in order to question them about their immigration status. The third condition, called the “Compliance Condition” requires grantees to certify their compliance with 8 U.S.C. § 1373, which prohibits states and localities from restricting their officials from communicating with immigration authorities regarding anyone’s citizenship or immigration status. Grantees are also required to monitor any subgrantees’ compliance with the three conditions, and to notify DOJ if they become aware of credible evidence of a violation of the Compliance Condition. Additionally, all grantees must certify their compliance with the three conditions, which carries the risk of criminal prosecution, civil penalties, and administrative remedies. The DOJ also requires the jurisdictions’’ legal counsel to certify compliance with the conditions.

A number of jurisdictions have sued the DOJ and the U. S. Attorney General regarding these new conditions and sought a nationwide injunction; however, so far, none have  been successful in obtaining a nationwide injunction.  Recently a partial win was handed to the states of New York, Connecticut, New Jersey, Rhode Island, Washington, and Commonwealths of Massachusetts and Virginia and the City of New York. The States and the City challenged the imposition of the three conditions on five bases: (1) the conditions violates the separation of powers, (2) the conditions were ultra vires under the Administrative Procedure Act (“APA”), (3) the conditions were not in accordance with law under the APA, (4) the conditions were arbitrary and capricious under the APA, and (5) § 1373 violated the Tenth Amendment’s prohibition on commandeering.  This case challenged the authority of the Executive Branch of the federal government to compel states to adopt its preferred immigration policies by imposing conditions on congressionally authorized funding to which the states are otherwise entitled.

While the court held that the plaintiffs did not make a sufficient showing of nationwide impact to demonstrate that a nationwide injunction was necessary to provide relief to them, it did find as follows: (1) The Notice, Access, and Compliance Conditions were ultra vires and not in accordance with law under the APA. (2) 8 U.S.C. § 1373(a)–(b), insofar as it applies to states and localities, is facially unconstitutional under the anticommandeering doctrine of the Tenth Amendment. (3)  The Notice, Access, and Compliance Conditions violated the constitutional separation of powers. (4)The Notice, Access, and Compliance Conditions were arbitrary and capricious under the APA.  (5) The DOJ was mandated to reissue the States’ FY 2017 Byrne JAG award documents without the Notice, Access, or Compliance Conditions, and upon acceptance to disburse those awards as they would in the ordinary course without regard to those conditions.  Additionally, the DOJ was prohibited from imposing or enforcing the Notice, Access, or Compliance Conditions for FY 2017 Byrne JAG funding for the States, the City, or any of their agencies or political subdivisions.

The DOJ was prohibited from imposing or enforcing the Notice, Access, or Compliance Conditions for FY 2017 Byrne JAG funding for the States, the City, or any of their agencies or political subdivisions.

There are several other cases pending, including one filed by the City of San Francisco, seeking the issuance of a nationwide injunction to prohibit the enforcement of the new conditions. Stay tuned for more developments in this area.

If you have any questions or would like more information, please contact Pamela Everett at pev[email protected].


Related litigation: City of Chicago v. Sessions, 264 F. Supp. 3d 933 (N.D. Ill. 2017); affd. appeal, City of Chicago v. Sessions, 888 F.3d 272 (7th Cir. 2018), but later stayed the nationwide scope of the injunction pending en banc review. Conference City of Evanston v. Sessions, No. 18 Civ. 4853, slip op. at 11 (N.D. Ill. Aug. 9, 2018) City of Philadelphia v. Sessions, 280 F. Supp. 3d 579 (E.D. Pa. 2017); City of Philadelphia v. Sessions, 309 F. Supp. 3d 289 (E.D. Pa. 2018)(currently on appeal); California ex rel. Becerra v. Sessions, 284 F. Supp. 3d 1015 (N.D. Cal. 2018)


Department of Education Proposes New Title IX Regulations Regarding Proper Response To Complaints of Sexual Misconduct

Posted on: December 21st, 2018

By: Bill Buechner

The Department of Education (“DOE”) recently issued proposed regulations regarding how elementary and secondary schools and institutions of higher education should respond to complaints of sexual harassment and sexual assault. As a whole, the proposed regulations seek to strengthen the due process protections for students accused of sexual harassment and/or sexual assault, while at the same time proposing measures that the DOE believes would encourage students who believe they are victims of sexual harassment and/or sexual assault to report the conduct and seek measures that would preserve or restore their access to an educational program or activity.

The proposed regulations follow the DOE’s decision in 2017 to rescind the 2011 Dear Colleague Letter and the 2014 Questions and Answers on Title IX and Sexual Violence guidance previously issued by the DOE under the Obama Administration. At that time, the DOE also issued temporary guidance set forth in its Questions and Answers on Campus Sexual Misconduct, while also stating that it intended to promulgate regulations addressing these issues.

The proposed regulations, as well as an executive summary and an in-depth explanation of the rationale for the proposed regulations have been published in the Federal Register at 83 FR 61462 and may be reviewed here. Briefly discussed below are the most significant proposed provisions:

  1. Narrowed Definition of Sexual Harassment

The proposed regulations would define sexual harassment as including (a) quid quo pro harassment (promising education benefits in exchange for an individual’s participation in unwelcome sexual conduct); (b) sexual assault, as defined by existing Clery Act regulations; and (c) “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” In contrast, the 2011 Dear Colleague Letter defined sexual harassment as “unwelcome conduct of a sexual nature.” The DOE explains that its proposed definition of sexual harassment is consistent with Supreme Court precedent assessing Title IX liability in private litigation and would provide a uniform standard. The DOE also emphasizes that Title IX is only violated when sex discrimination has the effect of denying access to an educational program or activity.

  1. Deliberate Indifference Standard

The proposed regulations state that a school would only be subject to Title IX liability if it responds to known sexual harassment in a way that is deliberately indifferent. The proposed regulations define deliberate indifference as “clearly unreasonable in light of the known circumstances.” The DOE explains that this standard of liability tracks the standard set forth in Supreme Court precedent addressing the liability of parties in private litigation. Prior guidance and the DOE’s Office of Civil Rights prior enforcement practices took the position that a school’s response should be judgment under a reasonableness standard.

  1. Actual Notice Requirement

The proposed regulations also would provide that a recipient must have actual knowledge of conduct that constitutes sexual harassment in order to be subject to Title IX liability, as opposed to the imputation of knowledge through constructive knowledge or respondeat superior. Actual notice is defined as knowledge by an official who has authority to institute corrective measures on behalf of the recipient. The proposed regulations also define actual knowledge as notice of sexual harassment to a school’s Title IX Coordinator or (at the elementary and secondary school level) a teacher.

  1. Two-Track Complaint Procedures

The proposed regulations would create a two-track complaint procedure, out of recognition that, for a variety of reasons, a complainant may not want to a file a formal complaint.  A complainant may notify the school (verbally or in writing) of conduct that could constitute sexual harassment without filing a grievance or pursuing charges against the alleged perpetrator.  If the complainant chooses this option, the school would not be obligated to investigate the allegations, but would be obligated to provide supportive measures, including a non-exhaustive list of measures such as counseling, extension of deadlines for completing course work, campus escort services, mutual restrictions on contact between the parties and changes in work or housing locations.   The supportive measures are to be non-disciplinary and non-punitive and reasonably available without cost or charge, and would be intended to restore or preserve the complainant’s access to his or her education. Colleges that provide these supportive measures and respect a complainant’s wishes not to file a formal complaint would be entitled to a safe harbor against a finding of deliberate indifference.

The proposed regulations recognize that, at the elementary and secondary school level, it may be necessary in some instances for a Title IX Coordinator to file a formal complaint even if the complainant does not to file one.   At the college level, a Title IX Coordinator would be obligated to file a formal complaint if the school has actual knowledge regarding reports by multiple complainants of conduct by the same respondent that could constitute sexual harassment.

The complainant may also submit a formal complaint in writing alleging sexual harassment and requesting that the school activate its grievance process.   The formal complaint must be signed by the complainant or the Title IX Coordinator.   Schools that follow the proposed regulations’ procedures for responding to a formal complaint would be entitled to a safe harbor against a finding of deliberate indifference.

  1. Notice of Allegations

The proposed regulations provide that, if a formal complaint is filed, the school must provide written notice to the parties who are known.   The written notice must include, among other things, identities of the parties involved in the incident, the conduct alleged, the date and location of the alleged incident and a statement that the respondent is presumed not responsible for the alleged conduct and a determination regarding responsibility will be made at the conclusion of the grievance process.

  1. Other Due Process Protections

The proposed regulations would give the parties the right to inspect any documents or evidence collected by the school during the investigation.   Parties would also have the right to review the initial draft of the investigation report prepared by the investigator and provide a written response for the investigator’s consideration before completion of the investigation report.   The proposed regulations would also give each party equal opportunity to have an advisor of his or her choice present at various stages of the grievance process, subject to restrictions that would be equally applicable to each party.   In addition, the proposed regulations would require that the investigator, coordinator and decision-maker not have a conflict of interest or bias against the complainant or respondent.   The proposed regulations would require live hearings for colleges and would allow (but not require) live hearings for elementary and secondary schools.

  1. Right of Cross-Examination

One of the more controversial issues is whether a respondent should have the right to cross-examine the complainant.  The proposed regulations answer this question by stating that due process requires a right to cross-examination of both parties.   However, the proposed regulations provide that, at the college level, the cross-examination must be conducted by the party’s advisor rather than the party.  Also, the proposed regulations would allow either party to request that the parties be placed in separate rooms during cross-examination while observing the questioning live via technological means.   Moreover, the proposed regulations mirror rape shield laws in prohibiting questions regarding the complainant’s sexual history, except the complainant’s history with the respondent to show consent, or to show that someone other than the respondent engaged in the alleged conduct.

At the elementary and secondary school level, the proposed regulations recognize that cross-examination of the parties during a live hearing may not be appropriate.  If school officials determine that a live hearing is not appropriate, the proposed regulations provide that each party must be allowed to pose written cross-examination questions to the opposing party or to witnesses through the decision-maker, including questions challenging credibility and follow-up questions.

  1. 8. Standard of Proof

Another controversial issue is what standard of proof is required to establish that a complainant was the victim of sexual harassment or sexual assault.  The 2011 Dear Colleague Letter stated that a preponderance of the evidence standard (meaning more likely than not) was appropriate because this is the standard in most civil cases.   The proposed regulations state that schools may decide whether to apply a preponderance of evidence standard or a clear and convincing evidence standard (meaning it is highly probable or reasonably certain that the alleged conduct occurred).   However, the proposed regulations would allow schools to apply the preponderance of evidence standard only if that standard is applied to (1) other student conduct code violations that carry the same disciplinary sanction; and (2) respondents who are employees, including faculty.

  1. Written Determination

The proposed regulations would require that the decision-maker issue a written determination that includes findings of fact and rationale for the conclusion as to each allegation.  The proposed regulations would require an objective evaluation of all the relevant evidence and would prohibit credibility determinations based on a person’s status as a complainant, respondent or witness.  The proposed regulations would require the written determination to state any sanctions imposed against the respondent and any remedies provided to the complainant to restore or preserve access to the school’s education program or activity.   Most importantly, the proposed regulations state that a school will not be found to be deliberately indifferent simply because the DOE would have reached a different conclusion based on its own weighing of the evidence.  The proposed regulations provide that the decision-maker must be a different person than the Title IX Coordinator and the investigator.

  1. Appeal

The proposed regulations would allow (but not require) schools to offer an appeal for an aggrieved party.  However, if an appeal is made available, it must be made available to both parties.   The proposed regulations provide that the decision-maker on appeal must be different that the Title IX Coordinator, the investigator or the initial decision-maker.

  1. Informal Resolution

The 2011 Dear Colleague Letter prohibited alternate dispute resolution in instances of alleged sexual assault.   The proposed regulations would permit informal resolution, such as mediation, if the parties provide their written consent.  The proposed regulations would require notice as to the requirements of the informal resolution process, including the circumstances under which it would preclude the parties from resuming a formal complaint arising from the same allegations, and other consequences resulting from participation in the informal resolution process.

As stated above, these are only proposed regulations.  The public will have until January 28, 2019 to submit comments.  After receiving and reviewing these comments, the DOE will promulgate final regulations.

For additional information, please do not hesitate to contact Bill Buechner at [email protected].