Articles Posted in Constitutional Law

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U.S. 1st Circuit Court of Appeals, November 05, 2008 Parker v. Gerrish, No. 081045 In a claim that defendant-police officer violated plaintiff’s constitutional rights by using his Taser during the course of arrest, verdict in favor of plaintiff and compensatory damage award of $111,000, are affirmed over claims of error that: 1) defendant was entitled to qualified immunity; and 2) the district court’s answer to a jury was responsible for an inappropriate damages award.

U.S. 7th Circuit Court of Appeals, November 07, 2008 Choose Life Illinois, Inc. v. White, No. 07-1349 In a suit by an interest group seeking on First Amendment grounds to force the state of Illinois to issue “Choose Life” specialty license plates, judgment in favor of plaintiffs is reversed where: 1) specialty license plates implicate the speech rights of private speakers, not government speech; 2) specialty plates are a nonpublic forum; and 3) the state could enforce a content-based but viewpoint-neutral ban disallowing any abortion-related message, whether pro-life or pro-choice, to be displayed on its license plates.

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U.S. 6th Circuit Court of Appeals, October 29, 2008 Nader v. Blackwell, No. 07-4350 In a 42 U.S.C. section 1983 suit brought by Ralph Nader against Ohio’s former Secretary of State for violating his First Amendment rights in applying a state law, which required that petition circulators reside and be registered to vote in Ohio, to Nader’s nominating petitions, dismissal of the suit is affirmed where: 1) contrary to the ruling below, Nader had standing to bring the suit; 2) the voter-registration restriction and the residency restriction contained in Ohio Rev. Code section 3505.06 are both unconstitutional in violation of the First Amendment; but 3) because the violations were not clearly established in 2004, the Secretary was entitled to qualified immunity. Petition circulation activity constitutes core political speech, and any regulation of that speech is subject to exacting scrutiny.

U.S. 8th Circuit Court of Appeals, October 31, 2008 Phelps-Roper v. Nixon, No. 07-1295 In an action challenging a Missouri statute which criminalizes picketing in front of a funeral location or procession, denial of a preliminary injunction while the statute’s constitutionality is reviewed is reversed where, incorporating the modified standard articulated in Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 732 (8th Cir. 2008): 1) plaintiff was likely to prove any interest the state has in protecting funeral mourners from unwanted speech was outweighed by the First Amendment right to free speech; 2) there was enough likelihood plaintiff will be able to prove the statute is not narrowly tailored or is facially overbroad; and 3) she was likely to prevail in proving the statute fails to afford open, ample and adequate alternative channels for the dissemination of her particular message that God is punishing America for the sin of homosexuality by killing Americans, including soldiers. (Opinion on rehearing)

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U.S. 6th Circuit Court of Appeals, October 24, 2008 Jelovsek v. Bredesen, No. 07-5443, 07-5524 In a case involving whether certain Tennessee laws governing the wine industry violate the dormant commerce clause of the Constitution, a judgment upholding the laws is affirmed in part, and vacated in part where: 1) upholding a Tennessee law banning the direct shipment of alcoholic beverages to consumers, including wine, was proper; but 2) Tennessee’s Grape and Wine Law is discriminatory on its face; and 3) a remand was required in order to fashion an adequate remedy and to allow in-state wineries an opportunity to intervene.

U.S. 9th Circuit Court of Appeals, October 20, 2008 Porter v. Osborn, No. 07-35974 In the case of a roadside killing of a man by an Alaska State Trooper, denial of summary judgment for the state trooper on grounds of qualified immunity is reversed and remanded for reconsideration where to “shock the conscience” by actions stripping an officer of qualified immunity, the officer must act with a purpose to harm unrelated to law enforcement, rather than act with only deliberate indifference.

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U.S. 1st Circuit Court of Appeals, October 15, 2008 Batterman v. Leahy, No. 072653 In a claim for attorneys fees, the district court’s administrative closure of the case on grounds of Pullman abstention is vacated and remanded where: 1) the Pullman abstention did not apply in this case; 2) there was no right under state law, property or otherwise, for attorney-plaintiff to be paid more than the cap on billable hours and so no federal constitutional issue is presented by defendants’ refusal to do so; 3) there was no ambiguity with respect to state law that required clarification; and 4) no single abstention doctrine, or probably any combination of them, would justify abstention for all of the counts.

U.S. 2nd Circuit Court of Appeals, October 17, 2008 Diaz v. Paterson , No. 052685, 063942, 063992 In a putative class action challenging the constitutionality of state civil procedure law, which allows a plaintiff who brings a lawsuit claiming interest in real property to file a lis pendens with respect to the property, is affirmed where the state’s lis pendens law as applied to plaintiffs did not offend the Constitution as construed by Connecticut v. Doehr, 501 U.S. 1 (1991).

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U.S. 2nd Circuit Court of Appeals, October 08, 2008 Hartline v. Gallo, No. 065309 In claim for unconstitutional strip search in the absence of individualized suspicion that she was secreting contraband, grant of summary judgment in favor of defendants is vacated in part, affirmed in part, and remanded where: 1) defendant’s evidence demonstrated a violation of her Fourth Amendment right; 2) defendant was subjected to a strip search by the police, pursuant to departmental policy, in the absence of individualized suspicion that she was secreting contraband on her person; and 3) the district court erred in holding that defendant waived the alternative basis for her section 1983 claim, namely, that the officers violated her Fourth Amendment rights by telecasting her strip search through the 20 police station.

U.S. 6th Circuit Court of Appeals, October 07, 2008 M.A.L. v. Kinsland, No. 07-1409 In an action involving the constitutionality of a public middle school’s regulation of a student’s leafleting, entry of a permanent injunction against the school and an award of nominal damages is reversed where: 1) the school hallways constituted a nonpublic forum; 2) the restrictions were reasonable and were not overbroad; 3) the heightened Tinker standard did not apply to the school’s viewpoint-neutral time, place, and manner restrictions on speech, which were designed to prevent hallway clutter and congestion; and 4) the award could not stand without a constitutional violation.

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U.S. 1st Circuit Court of Appeals, September 23, 2008 Welch v. Campia, No. 072470 In a lawsuit filed against the Chief of Police and the Town on the grounds that defendants impermissibly retaliated against plaintiff for exercising his First Amendment rights, grant of summary judgment in favor of defendants is reversed in part and affirmed in part where: 1) plaintiff’s non-reappointment constituted an adverse employment action sufficient to support a section 1983 claim; 2) district court properly granted summary judgment in favor of co-defendants because defendant was the only one with the appointment authority; 3) plaintiff failed to explain how defendants’ actions resulted in unreasonably inferior work conditions; 4) defendants’ argument that plaintiff’s First Amendment claim failed; 5) the district court erred in placing the burden on plaintiff to show that the reasons articulated by defendant were pretextual; 6) liability can be imposed for defendant’s decision not to reappoint plaintiff; 7) plaintiff’s whistleblower claims survived since there was a q! uestion as to whether he was not reappointed because of his involvement in the grand jury investigation; and 8) district court erred in concluding that plaintiff could not maintain an action for interference with advantageous relations.

U.S. 1st Circuit Court of Appeals, September 24, 2008 Thomas v. State of Rhode Island, No. 071985 In a suit brought by members of an Indian tribe claiming that state officials violated their constitutional rights by arresting them without lawful authority on tribal lands for alleged cigarette tax violations, dismissal of action for failure to state a claim is affirmed over claims of error that: 1) the court construed their allegations too narrowly, thereby ignoring a viable Fourth Amendment claim based on the lack of probable cause for arrest; and 2) the court wrongly denied their request to amend the complaint, thereby denying them the opportunity to remedy any tax deficiencies.