Legal Corner: Upcoming U.S. Supreme Court Cases Affecting Local Governments

Christina Estes-Werther, League General Counsel

The U.S. Supreme Court has begun hearing oral arguments on cases that may impact local governments. This article will highlight three cases that will be heard this month and describe the potential impact on municipalities.

First Amendment

On June 18, 2015, in Reed v. Gilbert, the U.S. Supreme Court found that Town of Gilbert's sign code was unconstitutional because it regulated speech based on the content of the sign and the message it was conveying. Fast forward 18 months and the country is still trying to understand the scope of the Reed decision and its implications on matters unrelated to sign codes. This term the U.S. Supreme Court accepted a case for review that may provide an opportunity for the Court to further explain its interpretation of content-based speech as it relates to government restrictions on an individual's right to free speech.

In Packingham v. North Carolina, Lester Packingham Jr. (Petitioner) posted a message on Facebook communicating his excitement about not having to pay for a traffic ticket. Mr. Packingham was subsequently arrested and convicted for violating a North Carolina law that prohibits a convicted sex offender from accessing social media site if the site does not restrict membership to adults. On appeal, the North Carolina Court of Appeals reversed and found that the state law regulated Mr. Packingham's conduct and not his speech and held that the statute was content-neutral because it restricts access but does not prohibit any content or message on the social media sites. A dissenting judge mentioned Reed v. Town of Gilbert and opined that the state law prohibits registered sex offenders from accessing some websites and not others based on the content of the website, similar to the Supreme Court's previous finding that Gilbert had restricted speech based on the content of the sign.

On appeal, the North Carolina Supreme Court reversed and reinstated the conviction finding that burden on speech was minor compared to the larger policy of protecting children from sexual offenders. The Petitioner petitioned the U.S. Supreme Court alleging that the state law violated his First Amendment right to freedom of speech. Lower courts in Indiana and Louisiana have struck down similar laws and this term, the Court will examine whether the North Carolina law violates the First Amendment prohibiting registered sex offenders from accessing commercial social networking websites where the registered sex offender knows minors can create or maintain a profile.

The International Municipal Lawyers Association (IMLA) has filed an amicus brief arguing that the Court should defer to state laws that aim to protect children from sexual predators. Additionally, the amicus argues that the North Carolina law focuses on a sex offender's conduct, not speech since it is similar to regulations preventing sex offenders from being present at a school or day cares and the law regulates an offender's virtual presence with only an incidental effect on speech. Therefore the amicus encourages the Court to find the statute is content-neutral, which triggers intermediate scrutiny rather than strict scrutiny.

The Court's decision to broadly interpret content-based speech in Reed has resulted in a myriad of cases being litigated over the past eighteen months. This case, while unrelated to sign codes, provides the Court with an opportunity to refine its holding about what it considers content-based speech.

Packingham v. North Carolina - Supreme Court Summary

Brief for Council of State Governments, International City/County Management Association, and International Municipal Lawyers Association as Amici Curiae In Support of North Carolina

Zoning Ordinances

In Murr v. Wisconsin, the Supreme Court will examine whether there is an unconstitutional taking of property when an owner combines two nonconforming, adjacent lots and is later prevented from selling one of the lots under a merger provision in Wisconsin law. The Murrs owned Lot F and a few years later purchased adjacent Lot E, which resulted in a merger of the two lots under a St. Croix County ordinance. When the Murrs wanted to resell Lot E, the county zoning staff opposed their variance to separately use or sell their two contiguous lots. The Murrs contend that the ordinance has resulted in an unconstitutional uncompensated taking. The Wisconsin Court of Appeals ruled there was no taking in this case because the combined property retains significant value as a single, buildable lot and the Murrs can use their property year-round. Since the Murrs were unable to demonstrate that they were denied all or substantially all practical use of their property, the Court rejected their takings argument.

An amicus brief was filed in this case by a number of governmental entities on behalf of St. Croix County's ordinance arguing that "merger" provisions are a common element of zoning ordinances because it balances the public and private interests with regard to land development. Further, the amicus states that the Takings Clause is inapplicable in this case because the St. Croix County ordinance is similar to many local land use regulations across the country and it was in effect prior to the Murrs' purchase of Lot E and any purchaser of land should be aware of such a prevalent and well-known land use regulation. Ultimately, the amicus brief argues that zoning is a vital function performed by local governments and these types of decisions should be left to the local elected officials who understand the needs and characteristics of their own communities.

Murr v. Wisconsin - Supreme Court Summary

Brief of Amicus Curiae National Association of Counties, Council of State Governments, National League of Cities, U.S. Conference of Mayors, International City/County Management Association, and International Municipal Lawyers Association In Support of Respondents

Police/Qualified Immunity

In County of Los Angeles v. Mendez, the Court will address a police officer's reasonable use of deadly force as it relates to the provocation rule and proximate causation. The case involves police officers who were part of a large search for a fugitive in Los Angeles County. While officers were searching a home, two other officers were searching the back of the property and came upon a shack. The officers entered the shack without announcing themselves and saw an individual, Angel Mendez, pointing a gun at them. Officers responded by shooting Mr. Mendez and his wife. The Ninth Circuit awarded the Mendez's damages because the officers didn't have a warrant to search the shack and "provoked" Mr. Mendez by intentionally or recklessly provoking a violent confrontation and holding the officer liable for use of deadly force. The Ninth Circuit also held that an officer's warrantless entry triggered Mr. Mendez's display of force and the officer's violation was deemed to be the proximate cause of any injuries resulting from the officer's actions.

An amicus filed by several governmental entities, including IMLA, asks the U.S. Supreme Court to overrule the Ninth Circuit's provocation rule that automatically places personal liability on officers for any resulting physical injuries weakening qualified immunity for law enforcement officers. Additionally, the amicus argues that there was no proximate cause because there was no direct relation between the Mendez's physical injuries and the lack of a search warrant - the injuries would still have occurred if officers had secured a warrant of the property since the injuries occurred on the back of the property. And Angel Mendez's pointing of the gun broke any chain of causation between the failure to obtain a warrant and the officers' defensive action of shooting at a person who was pointing a weapon at them. The amicus brief argues that the Ninth Circuit's rulings should be overturned to be consistent with other circuit decisions and to protect the safety of peace officers and the general public.

County of Los Angeles v. Mendez - Supreme Court Summary

Association of Counties, League of California Cities, and National Sheriffs' Association In Support of Petitioners

These three cases are a sampling of litigation that may impact local communities. The Court has a busy term and a future article will highlight the decisions of the Supreme Court, including an update on these cases and others that affect local governments.

League of Arizona Cities and Towns
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