April 16, 2014

Tenth Circuit: Summary Judgment for Prison Officials in RLUIPA Sweat Lodge Case Vacated

The Tenth Circuit Court of Appeals published its opinion in Yellowbear v. Lampert on Thursday, January 23, 2014.

Andrew Yellowbear is in a Wyoming prison for murdering his daughter. He is an enrolled member of the Northern Arapaho Tribe and seeks access to the prison’s existing sweat lodge to facilitate his religious exercises. The prison’s sweat lodge is located in the general prison yard and Yellowbear is housed in a special protective unit because of threats against him. Prison officials refused to allow his use of the sweat lodge, saying that the cost of providing the necessary security to take Yellowbear from the special protective unit to the sweat lodge and back is “unduly burdensome.” Yellowbear filed suit against prison officals and sought injunctive relief under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). The district court entered summary judgment for the defendants.

The Tenth Circuit held that Yellowbear had satisfied his burden under RLUIPA to show his use of the sweat lodge would be a religious exercise motivated by sincere religious belief. He also met his summary judgment stage burden of showing the prison substantially burdened that exercise by prohibiting him from any access to the sweat lodge.

For the government to prevail, it had to show prohibiting access serves a compelling state interest and is the least restrictive means of furthering that interest in this case. The court found the government had not met its burden. It did not quantify the costs it would incur in providing security to take Yellowbear to and from the sweat lodge. Additionally, prison lockdowns already occurred daily for nonreligious reasons, such as transporting other specially housed inmates to the medical unit. The defendants did not address this evidence so the inference that the prison would not perform lockdowns for religious exercise because of a discriminatory reason was not countered.

The defendants also argued that granting Yellowbear’s request would lead to a flood of requests from other specially housed inmates but provided no information to back up that speculative claim.

The court held that the prison also failed to meet its burden of showing its policy of prohibiting Yellowbears’s access was the least restrictive means necessary to further its compelling interest. The prison did not demonstrate that Yellowbear’s suggested alternatives were ineffective in meeting the prison’s goals. Showing that he refused the prison’s suggested alternatives was not enough.

The court explained that its decision was made on the basis of absolutes (no access granted) at the summary judgment stage and that the relative strengths of the parties’ positions may change. The court vacated summary judgment for the defendants.

Tenth Circuit: Disparity in Contribution Limits Among Candidates for Same Office Violated Equal Protection of Contributors

The Tenth Circuit Court of Appeals published its opinion in Riddle v. Hickenlooper on Thursday, January 23, 2014.

In 2010, three individuals ran for the Colorado House of Representatives, House District 61: Kathleen Curry, Roger Wilson, and Luke Korkowski. Curry was a write-in candidate, Wilson was the Democratic nominee, and Korkowski was the Republican nominee. Under Colorado law, individual contributions to Curry were capped at $200, and individual contributions to each of her opponents were capped at $400. Contributors to Curry’s campaign (along with others) sued state officials under 42 U.S.C. § 1983, claiming violation of the First Amendment and the Fourteenth Amendment’s Equal Protection Clause. The district court rejected the claims and granted summary judgment to the state officials.

Amendment 27 of the state constitution limits campaign contributions to state office candidates from single contributors to $200 for the primary and $200 for the general election. In 2004, the legislature removed time limits as to when a candidate could accept and spend contributions when a primary is involved. Because Republican and Democratic candidates must run in a primary to get on the ballot even if unopposed, but minor party, unaffiliated, or write-in candidates are only required to run in a primary when multiple candidates seek the nomination, the Secretary of State interprets the amendment and statute to allow candidates with a primary to accept $400 and those without to accept only $200.

The plaintiffs made an as applied argument to the statute and challenged the disparity rather than the amount of the limit. The Tenth Circuit focused on the contributors, not the candidates, in finding that contributors to all three candidates were similarly situated. It then applied the intermediate level of scrutiny the U.S. Supreme Court applied in the First Amendment context of contribution limits — whether the limits are closely drawn to a sufficiently important governmental interest.

The court found that the defendant’s asserted interest of anticorruption was not advanced by the statute so it was not closely drawn. It held that the statutory classification violates the right to equal protection for individuals wishing to contribute to write-ins, unaffiliated candidates, and minor-party candidates when each candidate runs unopposed for the nomination. The court reversed and remanded for summary judgment to be awarded to the plaintiffs.

Tenth Circuit: Qualifed Immunity Denial Reversed Because No Constitutional Duty to Release Person Arrested Based on Probable Cause

The Tenth Circuit Court of Appeals published its opinion in Panagoulakos v. Yazzie on Friday, December 20, 2013.

Defendant Officer Patricia Yazzie appealed the district court’s denial of qualified immunity in this § 1983 action alleging wrongful arrest and imprisonment (Count I) and illegal seizure of property (Count II). This is an interlocutory appeal following the district court’s ruling in an action brought by Spero Panagoulakos pursuant to 42 U.S.C. §§ 1983 and 1988, and 28 U.S.C. § 1343.

An Albuquerque police officer pulled over Panagoulakos in a traffic stop. Panagoulakos informed the officer he had a firearm in the vehicle. The officer ran a check and learned Panagoulakos was the subject of a protective order. Officer Yazzie was called to the scene and instructed to take Panagoulakos to the station and confirm the protective order was valid and that it did not contain an exception to the prohibition on firearm possession claimed by Panagoulakos. Yazzie mistakenly believed all orders of protection prohibit firearms possession, but 18 U.S.C. § 922(g) prohibits such possession only when the subject is classified as an “intimate partner.” Yazzie prepared a criminal complaint and had Panagoulakos detained.

The Tenth Circuit stated that to show that Yazzie violated a clearly established constitutional right, Panagoulakos would need to “show that, even though probable cause supported his initial arrest, clearly established law gave fair warning to Officer Yazzie that following her review of the protective order it was her constitutional duty to release him.” Because the majority of courts had never imposed such a duty, the court, in a 2-1 decision, held that Yazzie was entitled to qualified immunity and reversed the district court.


Tenth Circuit: Consent Can Be a Defense to Eighth Amendment Claim Based on Sex Acts Between Prisoner and Custodian

The Tenth Circuit Court of Appeals published its opinion in Graham v. Sheriff of Logan County on Friday, December 20, 2013.

Two prison guards, Jefferies and Mendez, had sexual intercourse with Stacey Graham while she was in solitary confinement at the Logan County Jail in Oklahoma. The guards confessed and were fired immediately. Graham then sought damages in a civil-rights complaint under 42 U.S.C. § 1983 against the two guards and the county sheriff. She alleged a violation of the Eighth Amendment prohibition against cruel and unusual punishment, as applied to the states under the Fourteenth Amendment. The district court granted the defendants’ motion for summary judgment on the ground that the sexual acts were consensual.

On appeal, Graham argued that (1) her consent was a question of fact that must be decided by a jury, and (2) consent was not a valid defense to her claims. Sexual abuse of an inmate by an officer violates the Eighth Amendment and is generally analyzed as an excessive force claim. The test for excessive force has an objective and subjective prong. When a prisoner alleges rape by a prison guard, the prisoner need prove only that the guard forced sex in order to show an Eighth Amendment violation.

In this case, the Tenth Circuit found there was no genuine dispute that the guards did not force Graham to have sex. Graham did not contest that she had participated in sexual conversations with Jefferies for an extended period before the acts in question occurred. She admitted that she flashed Jefferies and wrote him notes that made clear that she wanted to have sexual intercourse with him. She admitted to talking to Mendez about her fantasies, and that she told him to “[b]ring Jefferies” so that they could have a threesome. She did not indicate lack of consent during the event. Although Graham has said that she did not want to have sex with Mendez and that Mendez pushed her head down just before the encounter ended, she has not suggested that she indicated any reluctance to Jefferies or Mendez. Additionally, she did not discuss the significance of Mendez pushing her head down in her opening brief’s argument section.

Graham argued on appeal that a prisoner cannot legally consent to sex with a custodian, so even consensual sex with a prisoner is cruel and unusual punishment. This is a matter of first impression in the Tenth Circuit. The Sixth and Eighth Circuits have held that consensual sex between guards and inmates is not an Eighth Amendment violation. The Ninth Circuit has held that there is a rebuttable presumption of nonconsent that can be rebutted by a showing that the interaction involved no coercive factors. Some district courts have held that consent is not a defense.

The Tenth Circuit held that to prove sexual abuse of a prisoner, some form of coercion by the custodian must be present. The coercion need not be physical. In this case, coercion was not present, so summary judgment was affirmed.

Tenth Circuit: § 1983 Malicious Prosecution Claim Partially Reinstated

The Tenth Circuit Court of Appeals published its opinion in Myers v. Koopman on Friday, December 20, 2013.

Jeremy Myers challenged the district court’s dismissal of his § 1983 malicious prosecution claim alleging violations of his Fourth and Fourteenth Amendment rights. In his complaint, he asserted that Detective Brian Koopman obtained an arrest warrant by fabricating facts to create the illusion of probable cause. As a result, Myers spent three days in custody.

The Tenth Circuit held that the district court correctly dismissed Myers’s Fourteenth Amendment claim because Colorado law provided an adequate remedy in the form of a malicious prosecution tort. If a state actor’s harmful conduct is unauthorized and thus could not be anticipated pre-deprivation, as here, then an adequate post-deprivation remedy—such as a state tort claim—will satisfy due process requirements. The fact that Myers’s state tort remedy was now time-barred did not alter the court’s decision as Myers could have brought that claim in time but did not.

The court held that Myers’s Fourth Amendment claim was improperly dismissed because the court used the wrong underlying tort to provide the § 1983 statute of limitations. Myers correctly styled his claim as one for malicious prosecution, rather than false imprisonment, because he was seized after the institution of legal process. His claim accrued when the underlying criminal proceedings resolved in his favor and he filed his § 1983 claim within two years of that accrual.

The court affirmed dismissal of the Fourteenth Amendment claim and reversed and remanded the dismissal of the Fourth Amendment claim.


Tenth Circuit: Danger-Creation Exception to State Actor Liability for Only Own Acts Not Met

The Tenth Circuit Court of Appeals published its opinion in Hernandez v. Ridley on Wednesday, November 13, 2013.

Jose Hernandez, Jr., and Salvador Hernandez were killed by a motorist while they were performing road construction in Oklahoma. Their representative sued their employer, Duit Construction Company, and the motorist and alleged a substantive due process claim against a host of Oklahoma Department of Transportation (ODOT) employees. All ODOT employees except the director and the resident engineer on the construction project were dismissed by the district court. The question is whether the two remaining employees are entitled to qualified immunity.

Normally, state actors are only liable for their own acts. Hernandez argued that the ODOT employees were liable for the acts of the third-party driver because they created the danger that caused the deaths. This argument failed because it did not meet the threshold to invoking the danger-creation exception to the rule. There must be private violence, but Hernandez alleged negligence of the driver, not deliberateness. The court went on to state that Hernandez also failed to meet the second element of the threshold, affirmative conduct on the part of the state in placing the plaintiff in danger.

Because the plaintiff failed to meet either threshold to the danger-creation exception, the court reversed the failure to dismiss the remaining ODOT employees from the suit.

Tenth Circuit: Pretrial Detainee’s Rights under 14th Amendment Delineated in § 1983 Case

The Tenth Circuit Court of Appeals published its opinion in Blackmon v. Sutton on Friday, November 8, 2013.

When Plaintiff Brandon Blackmon was eleven, he was held at a juvenile detention facility awaiting trial for rape. As an adult, Blackmon brought suit against members of the facility’s staff under 42 U.S.C. § 1983, alleging they violated the Fourteenth Amendment rights guaranteed to him as a pretrial detainee. He claimed the staff frequently used a restraint chair to punish him, used other unlawful punishments, deprived him of essential medical attention, and should have transferred him to another facility. The district court refused to dismiss the case based on qualified immunity and held that the defendants sometimes exceeded the scope of their qualified immunity. The defendants brought this interlocutory appeal.

The Tenth Circuit held that restraining Blackmon to punish him or without a legitimate penological purpose would have violated his clearly established legal rights at the time. Because the case was at the summary judgment stage and the court had to view the facts in the light most favorable to Blackmon, summary judgment was precluded. The court also found Blackmon produced enough facts to suggest a violation of clearly established law by two staff members’ failure to provide him with meaningful mental health care despite his obvious need for it.

Blackmon also asserted a claim against the director of the facility for failing to transfer him to a shelter where he had been housed before. The court found a transfer to the shelter was not necessary to avoid any excessive risk to his health or safety and even if a transfer was necessary, pretrial detainees do not get to choose a particular place of detention.

The court affirmed the district court’s denial of qualified immunity except as to the director. The Tenth Circuit directed the district court to grant qualified immunity to the director.

Colorado Supreme Court: Requirement That Voters in Recall Election Must Have Voted in Original Election Unconstitutional

The Colorado Supreme Court issued its opinion in In re Interrogatory Propounded by Governor Hickenlooper on Monday, October 21, 2013.

Original Jurisdiction—Colo. Const. Art. VI, § 3—Prior Participation Requirement—Colo. Const. Art. XXI, § 3.

The Supreme Court held that the important constitutional issue raised by the Governor’s Interrogatory constitutes a solemn occasion requiring the Court to exercise its original jurisdiction under Article VI, § 3 of the Colorado Constitution. The Court further held that the prior participation requirement in Article XXI, § 3 of the Colorado Constitution conflicts with the First and Fourteenth Amendments to the U.S. Constitution. Therefore, the Court answered the Governor’s Interrogatory in the negative.

Summary and full case available here.

Tenth Circuit: Amendments to Utah’s Sexual Solicitation Statute Constitutional

The Tenth Circuit Court of Appeals published its opinion in Bushco v. Shurtleff on Monday, September 9, 2013.

Plaintiffs—Bushco Corp; Companions, L.L.C.; and TT II, Inc.  (“Appellants”)—are escort services licensed as sexually oriented businesses. Defendant is the Attorney General of the State of Utah (“Attorney General”). Plaintiffs brought a lawsuit in federal district court for the district of Utah, seeking declaratory and injunctive relief. They claimed that certain amendments (“Amendments”) to Utah Code Ann. § 76-10-1313 (“Sexual Solicitation Statute” or “Statute”)—specifically, § 1313(1)(c) and § 1313(2)—were overly broad, were unconstitutionally vague, and infringed on the right of free speech under the First Amendment of the U.S. Constitution. The parties filed cross-motions for summary judgment.

The district court held that § 1313(2) was unconstitutionally vague, and therefore ordered that that provision be severed and stricken from the statute. But the court upheld § 1313(1)(c). Appellants appealed the court’s ruling that § 1313(1)(c) was constitutional, and the Attorney General filed a cross-appeal, challenging the court’s ruling that § 1313(2) was unconstitutionally vague.

On appeal before the court were three main issues: (1) whether issue preclusion applied to the question of the Statute’s constitutionality because a district court previously held unconstitutional similar language of a predecessor statute, Utah Code Ann. § 76-10-1301(1) (“Sexual Activity Statute”); (2) whether the Amendments to the Sexual Solicitation Statute were overbroad or placed too great a burden on expression protected by the First Amendment; and (3) whether the Amendments to the Sexual Solicitation Statute were unconstitutionally vague.

The Tenth Circuit reached the following conclusions: (1) Issue preclusion did not apply, because the Predecessor Sexual Activity Statute and the Sexual Solicitation Statute are different statutes, with different purposes, and the constitutionality of the Sexual Solicitation Statute at issue in this case was not previously litigated. (2) The Amendments are not unconstitutionally overbroad because they do not encompass a substantial amount of constitutionally protected conduct. Moreover, the Amendments do not place too great a burden on Appellants’ speech rights because they pass the O’Brien test for incidental restrictions on First Amendment rights. United States v. O’Brien, 391 U.S. 367, 376 (1968). (3) Section 1313(1)(c) is not unconstitutionally vague, because it provides fair notice of the prohibited conduct and sufficient guidance to law enforcement. Similarly, § 1313(2) is not unconstitutionally vague, because it does not authorize or encourage discriminatory enforcement of the Sexual Solicitation Statute.

Accordingly, the Tenth Circuit AFFIRMED the district court’s ruling as to the constitutionality of § 1313(1)(c), but REVERSED the district court’s ruling that § 1313(2) is unconstitutionally vague.

Tenth Circuit: Court Did Not Have Subject Matter Jurisdiction Over Plaintiff’s Claims Against Federal Officers

The Tenth Circuit Court of Appeals published its opinion in Ingram v. Faruque on Friday, September 6, 2013.

Delbert Ingram is an employee at the Oklahoma City Department of Veterans Affairs Medical Center (“VAMC”). At the time of the incidents resulting in this appeal, VAMC police received a report from one of Mr. Ingram’s coworkers stating that Mr. Ingram had said he had been thinking about killing his supervisor.  Mr. Ingram was taken to an emergency room. An emergency room physician found Mr. Ingram to be was sufficiently ill “that immediate emergency action [was] necessary.” When Mr. Ingram attempted to leave the emergency room, Lt. Stevenson informed him that, although he was not under arrest, he was not free to leave the emergency room. Mr. Ingram stated that Lt. Stevenson said this with his hand on his firearm, and that after making this statement, Lt. Stevenson shut and locked the door to the padded isolation room. After conversations with physicians and being transported to a psychiatric ward, Mr. Ingram was held in the ward for over twenty-four hours before being medically cleared and released.

Mr. Ingram sued Defendants in their individual capacities claiming they violated his rights under the Fourth and Fifth Amendments of the U.S. Constitution by holding him in the psychiatric ward without his consent. Defendants filed motions to dismiss, arguing that, among other things, the district court lacked subject matter jurisdiction over the action, because the Federal Tort Claims Act (“FTCA”) provided the sole remedy for Mr. Ingram’s claims, and that the court therefore should not authorize a remedy under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). In Bivens, the U.S. Supreme Court recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen’s constitutional rights.

The district court agreed and granted Defendants’ motions to dismiss. Specifically, the court concluded that Mr. Ingram had a remedy available under 38 U.S.C. § 7316 (“VA Immunity Statute”), which applies the remedy available against the United States under the FTCA to damages arising from the provision of medical services by health care employees of the Veteran’s Administration (“VA”). Because of the availability of that remedy, the district court concluded Mr. Ingram did not have a cause of action under Bivens. Mr. Ingram appealed.

The Tenth Circuit held that the text of the VA Immunity Statute created an exclusive remedy that precluded a Bivens claim. The court also concluded that Mr. Ingram’s claims fell within the scope of the VA Immunity Statute, such that he was precluded from bringing a cause of action under Bivens. Because Mr. Ingram had an adequate alternative remedy available through the VA Immunity Statute and the FTCA, it was not appropriate to authorize a Bivens remedy for Mr. Ingram. Accordingly, the Tenth Circuit held the district court did not err in ruling that it lacked subject matter jurisdiction over Mr. Ingram’s claims.


Tenth Circuit: Qualified Immunity Summary Judgment in 42 U.S.C. § 1983 Claims Reluctantly Affirmed

The Tenth Circuit Court of Appeals published its opinion in Rojas v. Anderson on Tuesday, July 9, 2013.

Plaintiff Oliver Rojas appealed the district court’s order granting summary judgment to Defendants on his 42 U.S.C. § 1983 claims. Plaintiff filed a complaint under § 1983 against Defendants asserting claims of unlawful seizure and excessive force. The district court granted summary judgment to Defendants based on qualified immunity, concluding Officer Anderson had probable cause to arrest Plaintiff and, in light of the exigent circumstances surrounding the event, his warrantless entry into Plaintiff’s home was therefore justified. The district court also concluded that Defendants’ act of dropping Plaintiff did not violate the Fourth Amendment.

The Tenth Circuit agreed that the Defendants were entitled to qualified immunity as the Plaintiff failed to show that the defendant’s actions violated a constitutional or statutory right and that this right was clearly established at the time of the conduct at issue. The court pointed out that it may have reached an entirely different result but was forced to affirm because of the lack of proper argument and failure to provide supporting authority below or on appeal on the Plaintiff’s behalf.

Tenth Circuit: Hate Crimes Act Lawful Exercise of Congress’s Power Under Thirteenth Amendment

The Tenth Circuit Court of Appeals published its opinion in United States v. Hatch on Wednesday, July 3, 2013.

Three New Mexico men kidnapped a disabled Navajo man and branded a swastika into his arm. The United States charged the assailants with committing a hate crime under the recently enacted Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, 18 U.S.C. § 249. The Hate Crimes Act makes it a felony to physically attack a person because of that person’s race. The three assailants contended in district court that the Hate Crimes Act is unconstitutional, claiming Congress lacks the authority to criminalize purely intrastate conduct of this character. The government countered that the Thirteenth Amendment, which abolished slavery in the United States, gave Congress the necessary authority. The district court agreed with the government, holding that Congress’s power to enforce the Thirteenth Amendment authorized it to enact 18 U.S.C. § 249(a)(1), the portion of the Hate Crimes Act under which the three men were charged.

One of the men, William Hatch, pleaded guilty while reserving his right to appeal. He argued on appeal that 18 U.S.C. § 249 violates federalism. The court acknowledged the importance of Hatch’s arguments, but found itself bound by Jones v. Alfred H. Mayer Co., a Supreme Court case upholding Congress’s power to enforce the Thirteenth Amendment by appropriate legislation. This authority extends to  rationally determining what are the “badges and incidents” of slavery.

The court also found that the racial violence provisions of § 249 respected the limits on Congressional authority found in Jones. It applied the badges and incidents concept to: “(a) actions that can rationally be considered to resemble an incident of slavery when (b) committed upon a victim who embodies a trait that equates to “race” as that term was understood in the 1860s, and (c) motivated by animus toward persons with that trait.”

Because the Thirteenth Amendment protects all races, the court rejected Hatch’s argument that the Thirteenth Amendment only applies to certain groups so it fails under equal protection. The court affirmed Hatch’s conviction.