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Posts Tagged ‘Constitution’

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].

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.

Supreme Court Ends Compulsory Union Payments for Government Employees – So What’s Next?

Posted on: July 5th, 2018

By: Brad Adler & Matt Weiss

On Wednesday June 27, the United States Supreme Court reached a landmark 5-4 decision in Janus v. American Federation of State, County, and Municipal Employees Council 31 wherein it ruled that the Constitution’s First Amendment prohibits public sector unions from collecting fees from non-union members.   While the scope of the impact of this ruling will be unknown for years, there is no doubt that Janus weakens the ability of public sector unions to raise money.

In Janus, an employee with the Illinois Department of Healthcare and Family Services sued the American Federation of State County, and Municipal Employees Council 31 (“AFSCME”) to challenge an “agency fee” that he was required to pay to the union under the Illinois Public Labor Relations Act.  The Act provided that, if a majority of employees in a bargaining unit voted to be represented by a union, the union was designated as the exclusive representative of all employees and, even though employees were not obligated to join the union, they were required to pay the agency fee, a percentage of union dues for “chargeable expenditures,” i.e., the portion of union dues attributable to activities germane to the union’s duties as a collective bargaining representative.  The agency fee excluded “nonchargeable expenditures,” which funded the union’s political and ideological projects.  This distinction between chargeable and nonchargeable expenditures was the framework created by the Supreme Court in its 1977 decision Abood v. Detroit Board of Education, 431 U.S. 209.

The Supreme Court elected to use Janus as a vehicle to overturn Abood and hold that the Illinois law that required nonunion public employees to pay an agency fee to a public union constituted a violation of their First Amendment right to free speech, even if the fees only consisted of chargeable expenditures.  The Court assessed the agency fees under an exacting standard, which required a showing that “a compelled subsidy must serve a compelling state interest that cannot be achieved through means significantly less restrictive of associational freedoms.”  Applying the standard, the Court declined to identify a “compelling state interest” and found that public-sector unions could no longer extract agency fees from nonconsenting employees.

The Court’s ruling in Janus very likely will have a direct effect on 5 million public employees in 22 states, including California, New Jersey, New York, and Pennsylvania, who are no longer required to pay agency fees for a union in which they are not a member.  However, the impact of this decision is less direct in states where agency fees and, in some cases, public sector collective bargaining, are either non-existent or prohibited.  Nonetheless, even in these states, the Supreme Court’s basic holding in Janus, that the government cannot compel its employees to make payments for causes with which they disagree, could be applied in a variety of other contexts such as mandatory contributions to government pension funds.

Whether the Supreme Court will expand on this newly identified First Amendment right of government employees and non-union members remains to be seen, especially in light of Justice Kennedy’s retirement announcement.  The one certainty is that public unions in cities and counties in nearly half the states in the country will no longer be able to require non-union employees to contribute union fees.  And very few doubt that this new legal reality will reduce (in some capacity) the power of public unions by shrinking their financial base of support and by potentially reducing their membership.

But lawmakers in some states already are rallying to pass statutes that will allow unions to limit the services they provide to only those employees that pay union dues.  As a result, it is important for employers to keep informed on any new Janus-induced union laws in states in which they operate.  In fact, in anticipation of an adverse ruling, on April 12, New York passed legislation that relieved unions from representing the interests of non-members in different areas.

The Janus decision is only the latest chapter in a long and unfinished story written about the constitutionality of certain activities of public sector unions.  More to come in the years ahead. . .

If you have any questions or would like more information, please contact Brad Adler at [email protected] or Matt Weiss at [email protected].