Law And Public Policy Test #2

Front 1

Government Liability Case: City NOT liable

Back 1

Milestone v City of Monroe

(Cranky old woman sues city to argues senior center code of conduct policy violates her 1st amendment rights)

Decision: City not liable, not "final decisionmaker"

Front 2

Government Liability Case: City IS liable

Back 2

Congine v Village of Crivitz

(Upside down flag removed by Chief of Police during 4th of July celebration)

Decision: City liable, Chief is "final decisionmaker"

Front 3

What factors lead to municipal (gov't) liability

under 42 USC 1983 ?

Back 3

Violation was direct result of:

1. an express municipal policy

2. A widespread, although unwritten practice (deliberate indifference)

3. a decision by a municipal agent with "final policymaking authority" (on a particular area/issue)

*Does not apply to federal employees/gov

Front 4

Government (Individual) Liability:
Case result: NO Qualified Immunity

Back 4

Kennedy v Cincinnati : Pool Creeper!

a. No property interest

b. Liberty interest violated (obvious interest)

c. Yes, the officer should have known: LIABLE

Front 5

Government (Individual) Liability: Case result: Qualified Immunity

Back 5

Hearring v Sliwowski: School Nurse
a. Constitutes search? Not sure.

b. No CLEAR constitutional violation

c. The nurse not expected to know random out-of-circuit case

NOT LIABLE

Front 6

Government Liability:

How to determine individual liability

Back 6

1. Absolute immunity: judges, legislators, prosecutors, POTUS

2. Qualified immunity:
a. Is there a clearly established statutory or constitutional right? (relevant court decisions?)
b. Would a reasonable person have known about the clearly est. rights?

Front 7

Who can be sued under 42 USC 1983 ?

Back 7

1. State officials: individually and as officials (but not for $$)

2. Municipal officers: individually and as officials

3. Municipalities themselves

For: Damages$$, Injunction, Declaratory relief

Front 8

What qualifies at "deliberate indifference" on the part of a government?

Back 8

(1) failure to provide adequate training in light of foreseeable consequences

(2) failure to act in response to repeated complaints of constitutional violations by its employees

(3) failure to screen where “plainly obvious consequence” of hiring would be deprivation of 3rd party’s federal right

Front 9

4th amendment elements

Back 9

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized

Front 10

4th amendment Violated: Unreasonable (no warrant)
cases?

Back 10

Katz v US: Phone booth gambler

a. Yes REP -- Harlan's "Reasonable Expectation of Privacy" question established

b. Not reasonable -- need warrant!!

*No physical intrusion necessary (people, not places)

Front 11

Harlan's Test

Back 11

a. Did the person exhibit (have) actual expectation of privacy?

b. Is the person’s expectation objectively reasonable? (one that society is willing to recognize)

Front 12

Exceptions to 4th amendment warrant

Back 12

consent given, plain view, search incident to lawful arrest (more frequent than warrant searches), and “special needs” (administrative searches, student searches, and government employees)

Front 13

Gov't Employee Search Test (4th amendment)

Back 13

1. Is there a reasonable expectation of privacy? (depends on "operational realities")

2. Is the search reasonable under the circumstances? (prior justification, reasonably related in scope)

Front 14

4th amendment not violated: Search reasonable

What 2 cases? (one we read, one from lecture)

Back 14

City of Ontario v Quon: Police Pagers

a. REP? Not clear, but even if...

b. Yes, reasonable (prior justification, reasonable scope)

Teacher break room

Front 15

4th amendment violated: Search not reasonably related in scope.

what 2 cases? (one we read, one from lecture)

Back 15

O'Connor v Ortega: Doctor's office searched

a. Yes, REP

b. No, not reasonable (not really justified, not reasonably related in scope)

County Dispatch room: video MOST intrusive means

Front 16

Exclusionary Rule

Back 16

If unreasonable search occurred, any evidence seized as a result of the search cannot be used against the defendant in a criminal prosecution, state or federal.

Judge-made rule.Started use in 1914

Front 17

5th amendment takings clause

Back 17

...[n]or shall private property be taken for public use, without just compensation

Purpose: to bar the government from forcing some people alone to bear public burdens which, in all fairness and justice, should be born by the public as a whole."

Front 18

Types of takings

Back 18

1. Actual possession by gov't (new road, expansion, airport)-always a taking

2. Permanent physical occupation or “invasion” by govt (e.g. flood; airplanes and chicken farm)-always a taking

3. Regulations by gov (e.g. wetlands restrictions)-sometimes a taking

a. Regulation creates total deprivation of value-always a taking (Lucas on coast)

b. Regulation is an invasion (even as small as a breadbox)-always a taking

c. Every other kind of regulation that interferes with economic activity—e.g. Penn Central

Front 19

Takings Case examples: NOT a taking
(3)

Back 19

Penn Central v NY: Grand Central Terminal use

Kelo v City of New London: took neighborhood for economic development use (defers "public use" question) *not really blighted

FL v Galaxy Fireworks: bans sale around 4th

Front 20

Takings Test: general, and Penn Central

Back 20

1. Is it a taking?

2. Is it for public use?

Penn Central:

1. What is the economic impact? 90%? 10%?

2. What are the distinct investment-backed expectations? Can existing use continue?

3. Character of gov't action?

Front 21

KELO case precedents

Back 21

Hawaii v Midkiff: Land redistribution (taking from A to give to B)

Berman v DC: larger blighted area taken for redevelopment even though store not blighted

Ruckelshaus v Monsanto: gov't can share pesticide research if compensated

Front 22

Takings case example: Yes, Taking

Back 22

Avenida San Juan Partnership v. City of San Clemente : "slope" landslide, re-zoned 1 property to 20 acres (clearly carved out to burden one individual, made up canyon excuse)

Fails all three factors! Economic impact, Investment backed expectations, character of gov't

Front 23

Due Process Clause: 14th and 5th Amendment

Back 23

Protects individuals from mistaken or unjustified deprivation

Goal: accuracy, fairness, confidence in gov't

Front 24

Elements of typical due process

Back 24

1.Notice: Time, Evidence, Process

2. Opportunity to be heard

Front 25

Procedural Due Process

Test

Back 25

1. Did the gov't deprive you of protected interest: life, liberty, or property?

2. If yes, apply Mathews balancing test

Front 26

Mathews Balancing Test

Back 26

1. Nature of private interest affected

2. Risk of erroneous deprivation

3. Burden on state of other procedures (government interest)

Front 27

Mathews v Eldrige takaways

Back 27

1. Evidentiary judicial hearing not necessary or best for all situations

2. Welfare benefits are the exception (Disability not property right)

3. Mathews balancing test

Front 28

Cleveland Board of Ed v Loudermill takaways

Back 28

Loudermill notice!:“The tenured public employee is entitled to oral or written notice of the charges against him,an explanation of the employer's evidence, and an opportunity to present his side of the story.”

Tenured employees ("for-cause" dismissal only)= PROP INTEREST

Front 29

Four Due Process Examples

Back 29

Assisted Suicide...

Front 30

Gov't Employee: what is a liberty interest violation?

Back 30

IF: When firing or demoting,the govt made

1. PUBLIC;

2. Stigmatizing statements about that call into question good name, reputation, honor, or integrity;

3. concurrently with, or in close temporal proximity to, his dismissal

Than: the employee is entitled to DP: name-clearing hearing

Front 31

Procedural v Substantive Due Process

Back 31

Procedural due process is HOW government deprives us;

Substantive due process limits WHAT government does.

Front 32

Why is Substantive Due Process such a big deal?

Back 32

1. Gives the federal courts discretion to decide what substantive rights are protected under DP and how extensive that protection is.

2. Once the federal courts decide what substantive rights are protected by DP, it can use judicial review to enforce these rights.

Front 33

Fundamental rights under SDP

Back 33

"so rooted in the traditions and conscience of our people as to be ranked as fundamental.”

Tied to autonomy, privacy: The right to marry (Loving), Children/family,Travel w/i our country,Reproductive rights

--> apply strict scrutiny!!

everything else:NONFUNDAMENTAL (--> apply rational basis)

Front 34

Substantive Due Process before/after 1937

Back 34

Before: right to contract is fundamental right, no valid police purpose in restricting work hours (Lochner v New York 1905)

After: upholds Washington's minimum wage law (West Coast Hotel v Parrish )

ECONOMIC SDP: laws regulating business and employment practices will be upheld if rationally related to legitimate govt purpose.

Front 35

Buck v Bell (1927)

Back 35

VA law provided for involuntarily sterilizing women who were genetically “unfit.”

Ruled Constitutional-Court seemed to use rational basis test

Then, established as "Basic Liberty" in 1942 criminal sterilization case

Front 36

SDP new fundamental rights

Back 36

Reproductive rights/ Marital Privacy: Griswald v Connecticut (couple getting contraception at Planned Parenthood)

Sexual Activity: Lawrence v Texas (sodomy case)

Marriage: Loving (interracial), Obergefell (gay)

Front 37

Establishment Clause: 1st amendment

Back 37

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Front 38

Establishment Clause tests

Back 38

i. Ceremonial deism: lost any religious content through rote repetition

ii. Lemon Test:1. Does it have a secular purpose 2. Does it have a primary effect of endorsement 3. Does it amount to excess entanglement

iii. Endorsement (O’Connor): An objective observer, acquainted with the circumstances and history, would perceive it as government endorsement of religion

iv. Coercion (Kennedy)

Front 39

Ceremonial deism examples

Back 39

1. "In God We Trust" motto

2. Pledge allegiance "under God"

Front 40

Establishment Clause: Violates

Cases

Back 40

i. Allegheny courthouse steps

ii. 10 Commandments posted on KY courthouse wall

iii. American Atheists vs Utah crosses on highway1. Permanent monuments on public property is government speech2. Common does not mean secular

iv. Engel v Vitale: no part of government business to compose official prayers

v. Lee v Weisman: prayer meant schools engaging in religious exercise, had subtle coercive effect, not really “voluntary”

vi. Santa Fe v Doe: prayer at football games

Front 41

Establishment Clause: Does NOT violate

Cases

Back 41

i. Pawtucket, RI display

ii. Lynch v Donnelly crèche in larger holiday display

iii. Menorah and Christmas tree at Pittsburgh City-County building

iv. 10 Commandments in Texas Courtyard

v. American Atheists vs NYC 9/11 Cross

vi. Town of Greece v Galloway: legislative prayer OK

Front 42

Types of government interference in religious practice

Back 42

1. Prohibition of exercise (religious practices)

2. Burden/regulation of exercise (e.g. unemployment benefits dependent on Sabbath work)

Front 43

Free Exercise Clause: 1st amendment

Back 43

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Front 44

Free Exercise: NO Violation

Case

Back 44

US v Lee (Amish Employer & SS taxes)

1. Sincere belief? Yes

2. Substantial burden? Yes

-->

3. Compelling State Interest? Yes (comprehensive so indespensible)

4. Least Restrictive? ? Yes

Front 45

Free Exercise: Violation

Cases

Back 45

Sherbert v Verner (unemployment... working on Sabbath)

Wisconsin v Yoder (Amish school requirement)

1. Sincere belief? Yes

2. Substantial burden? Yes

-->

3. Compelling State Interest? No (not effective)

4. Least Restrictive? ? Not addressed

Front 46

Employment Div v. Smith (Peyote unemployment) Significance

Back 46

Neutral, generally applicable laws do not run afoul of the Free Exercise Clause of the Constitution, even if they hamper some religious practices!Use Rational Basis

--> otherwise, Strict Scrutiny

Led to RFRA

Front 47

RFRA (1993)

Back 47

(a) shall not substantially burden a person’s exercise of religion even if a rule of general applicability

(b) Exception: Government may substantially burden a person’s exercise of religion if it demonstrates that application of the burden to the person— (1) compelling governmental interest; and (2) is the least restrictive means

Front 48

Violates Free Exercise
Case

Back 48

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993)

Animal Sacrifice Case (specifically targeted)

Front 49

Does not violate Free Exercise

Case

Back 49

Spiering v Heineman (US Dist Ct Neb 2006)

Infant testing for diseases vs 7 day "silent birth" for scientologists

Front 50

Violates RFRA

2 Cases

Back 50

Hobby Lobby Contraception Case (not least restrictive)

Gonzales v O'Centro hoasca case

Front 51

Does not violate RFRA

Case

Back 51

Miller v Davis KY clerk (no substantial burden)

Damon v Masters (prison meal case -- no proof of substantial burden)

Front 52

Free Exercise v RFRA Flowchart

Back 52

a. Is Gov’t action state/local or federal?

b. State/Local

i. State RFRA = Strict Sctrutiny

ii. Federal Free Exercise Clause

iii. State Free Exercise Clause

c. Federal

i. RFRA = Strict Scrutiny

ii. Free Exercise Clause

1. Neutral/Generally applicable law? = Rational Basis

2. Not neutral/gen app? = Strict Scrutiny

Front 53

14th Amendment Equal Protection Clause

Back 53

Section 1. . . . nor [shall any State] deny to any person within its jurisdiction the equal protection of the laws.

Front 54

How does Equal Protection apply to the Federal Government?

Back 54

Reverse Incorporation

Front 55

Who does the Equal Protection clause protect?

Back 55

Just The "Slave Race" (The 14th amendment did not guarantee that all citizens should receive equal economic privileges by the state.)

until...

US v. Carolene (Milnut v Margarine), applies rational basis

Front 56

Footnote 4

Back 56

US v. Carolene (Milnut v Margarine),

Ct might want to take a harder look at "statutes directed at particular religious . . . or national . . . or racial minorities.” (aka “Discrete and insular minorities”)

Front 57

EP Classifications and Levels of Scrutiny

Back 57

1. Rational Basis: age, mental disability, sexual preference (?), economic regulation

2. Intermediate Basis: quasi-suspect classes of Gender, born out of wedlock

3. Strict Scrutiny: suspect classes of race, national origin

Front 58

EP rational basis met

cases

Back 58

Railway Express Agency, Inc. v. New York (1949)New York City traffic regulations prohibited “advertising vehicles”

Bah: Taxi uniforms

Contractors Supply: Asphalt factory location

Front 59

EP intermediate scrutiny not met

Back 59

Virginia Military Academy

Craig v Boren (Alcohol sales to males at 21, females at 18)

Front 60

EP rational basis not met

Back 60

DOMA: goal to impose inequality

Cleburne - Mental hospital denied permit (targeted because of prejudice)

Front 61

EP Strict Scrutiny not met

Back 61

Richmond v J.A. Croson Co (Richmond, VA 30% subcontract to minorities) - not compelling. Must prove OWN past discrimination or prove the subcontractors discriminated