IML@ News



IML@ News

(Issue No. 28, May 25, 2005)

U.S. Supreme Court

Court Rejects Agins in Takings Case Lingle v. Chevron U. S. A. Inc., 2005 WL 1200710 (U.S. May 23, 2005) (No. 04-163) Concerned about the effects of market concentration on retail gasoline prices, the Hawaii Legislature passed Act 257, which limited the rent oil companies could charge dealers leasing company-owned service stations. At the time, only two refineries and six gasoline wholesalers were doing business in the State. Chevron, then one of the largest oil companies in Hawaii, controlled 60 percent of the market for gasoline produced or refined in the State, and 30 percent of the wholesale market on the State’s most populous island. Chevron sued, seeking a declaration that the rent cap effected an unconstitutional taking of its property (its profits) and an injunction against application of the cap to its stations. The district court found that the cap would not actually reduce retail gas prices and, applying Agins v. City of Tiburon, 447 U.S. 255 (1980) (where the Court declared that government regulation of private property "effects a taking if [it] does not substantially advance legitimate state interests") held that the rent cap effected an uncompensated taking in violation of the Fifth and Fourteenth Amendments because it did not substantially advance Hawaii’s asserted interest in controlling retail gas prices. The Ninth Circuit affirmed. On May 23, the U.S. Supreme Court reversed and remanded. Justice O’Connor delivered the opinion for a unanimous Court; Justice Kennedy filed a concurring opinion. "This case requires us to decide whether the ‘substantially advances’ formula announced in Agins is an appropriate test for determining whether a regulation effects a Fifth Amendment taking. We conclude that it is not." Noting that this was the Court’s "first opportunity to consider the [Agins formula] as a free-standing takings test," it concluded the formula "prescribes an inquiry in the nature of a due process, not a takings, test, and that it has no proper place in our takings jurisprudence." The "substantially advances" formula suggests a means-ends test – whether a regulation of private property is effective in achieving some legitimate public purpose – but reveals nothing about the magnitude or distribution of the burden that the regulation imposes upon property rights. This approach was "doctrinally untenable" as it ignored both the basis of the Takings Clause and the justification for allowing regulatory actions to be challenged under the Clause. The facts in this case, the Court noted, were particularly apt in illustrating the flaws of the "substantially advances" formula: Chevron had failed to argue or establish that it had been "singled out to bear any particularly severe regulatory burden." Moreover, the Agins formula undermined deference to legislative judgments and presented the courts with the practical difficulty of second-guessing state and federal legislation, "a task for which courts are not well-suited." The opinion can be accessed at the Supreme Court’s website at IMLA, in conjunction with several other entities, filed an amicus brief supporting Hawaii in the case. The brief was authored by Timothy J. Dowling of the Community Rights Center on behalf of the State and Local Legal Center and its member organizations.

Case Law Update

Here’s a brief look at some decisions of interest since the last Newsletter. Other case summaries are available at the What’s New page at

"Excusable Neglect" Dimmitt v. Ockenfels, No. 04-1618 (1st Cir. May 12, 2005) Dimmitt filed suit alleging excessive force on the part of the town’s police officers. The defendants filed a motion for summary judgment, as well as the required statement of material facts. While the plaintiff’s counsel submitted a timely opposition to the motion, the accompanying statement of material facts (setting forth his putative evidence relating to the use of excessive force) did not comply with Local Rule 56(c), which required that the counterstatement expressly admit, deny or qualify each paragraph of the defendants' statement of material facts. When the defendants filed a motion to strike the the counterstatement as noncompliant with the local rules, Dimmitt's counsel raised "excusable neglect" (see Fed. R. Civ. P. 6 (b)) in response, claiming inexperience and unfamiliarity, and pointing to a "good-faith effort" to comply. The district court granted the motion to strike and in the absence of a timely counterstatement, it granted summary judgment for the defendants. On appeal, the First Circuit affirmed. Although the "excusable neglect" inquiry involved "a significant equitable component" and was to give due regard to the totality of the relevant circumstances, the district court did not abuse its discretion. Even under the flexible standard required, "counsels' inattention or carelessness, such as a failure to consult or to abide by an unambiguous court procedural rule, normally" did not constitute "excusable neglect." See

Section 1983 - No "Seizure" DiBella v. Borough of Beachwood, No. 03-4892 (3d Cir. May 12, 2005) The plaintiffs, two candidates for office in the defendant municipality, were campaigning when police told them to stop campaigning at that location as their signs were blocking motorists’ views. They refused and were cited for defiant trespass. After all charges were dismissed, the plaintiffs brought a Section 1983 action for malicious prosecution, claiming that having to attend their trials for defiant trespass constituted an unreasonable seizure. After the jury found that the officer had no probable cause to issue the defiant trespass summons, and acted for a purpose other than bringing the plaintiffs to justice, the judge entered judgment for defendants. He ruled that having to attend pretrial and trial hearings did not constitute a government "seizure" in a Section 1983 malicious prosecution action predicated on the Fourth Amendment. On appeal and cross appeal, the Third Circuit affirmed. While pretrial custody and some onerous types of pretrial, non-custodial restrictions constituted a Fourth Amendment seizure, in this case, the plaintiffs’ liberty was restricted only during the Municipal Court trials. The Fourth Amendment did not extend beyond the period of pretrial restrictions. See

City Policies and FMLA Leave Callison v. City of Philadelphia, No. 04-2941 (3d Cir. May 19, 2005) Callison, a city employee, was diagnosed with "deep anxiety reaction and stress." After he missed a significant amount of work due to sick leave, he was placed on a Sick Abuse List. Listed employees were required to "call in": notify the city when leaving home and upon return while being on sick leave. He failed to do so. He obtained Family and Medical Leave Act (FMLA) leave and, during the course of this leave, also failed to comply. He received two suspensions and sued, claiming the enforcement of city's call-in policy while he was on FMLA leave interfered with his substantive FMLA rights. The FMLA provides that "[i]t shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter." 29 U.S.C. § 2615(a)(1). It was undisputed that he was entitled to the benefits of the FMLA. The district court held that the FMLA was not compromised by the policy because it "neither prevents employees from taking FMLA leave nor discourages employees from taking such leave. It simply ensures that employees do not abuse their FMLA leave." On appeal, the Third Circuit affirmed. The city provided the plaintiff with the entitlements in the FMLA, and nothing in that Act preempted the "call-in" policy. There was no right in the FMLA to be "left alone" while on leave. See

Establishment Clause – "In God We Trust" Lambeth v. Bd. of Comm'rs, No. 04-1753 (4th Cir. May 13, 2005) Two attorneys sued, alleging that the County Board of Commissioners violated the Establishment Clause when it authorized the phrase, "In God We Trust," to be inscribed on the facade of the county’s government building. The district court dismissed the action for failure to state a claim, finding no First Amendment violation upon applying the test in Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). The plaintiffs appealed, and the Fourth Circuit affirmed. The complaint failed to sufficiently allege that the display had no legitimate secular purpose; that it had the effect of advancing or endorsing religion; or that it resulted in an excessive entanglement of government and religion. Assessing the Board’s use of the national motto in its full context – "as a statement with religious content, and as one with legitimate secular associations born of its consistent use on coins and currency, and as the national motto," the Board’s use of the phrase did not contravene the Establishment Clause. See

Search and Seizure - Motion to Suppress U.S. v. Santiago, No. 03-30786 (5th Cir. May 18, 2005) Police investigating a burglary attended at Santiago’s home as he was allegedly the "fence" for the stolen goods. He allegedly allowed officers to enter and acquiesced to a search of the home. Firearms and stolen goods were found. To get Santiago to sign a written statement admitting he had purchased the items, the deputies promised Santiago that he would not be arrested, and never informed him of his Miranda rights. Santiago was subsequently indicted and moved to suppress the evidence of the items and the statement. The district court denied the motion, finding no Fourth Amendment violations. While Santiago was not advised of his Miranda rights, any potential taint of the search was removed by his testimony that he was familiar with his rights. On appeal, the court affirmed. The district court’s assumed finding that Santiago invited the deputies into his home and consented to their search was reasonable and well-supported by the record; as a consequence, the discovery and seizure of the firearms was lawful. The statement was not rendered involuntary merely because the suspect was promised leniency if he cooperated with police. Santiago had prior familiarity with the law, and the statement was not the product of either duress or undue coercion; accordingly, the district court appropriately determined that the statement was not rendered involuntarily. See

Section 1983 – Denial of Qualified Immunity Sample v. Bailey, No. 04-4174 (6th Cir. May 9, 2005) Police responding to a security alarm found Sample on the business’s premises carrying a computer. Sample "took off" and was found hiding in a cabinet. The defendant officer claimed Sample did not heed his commands, but reached inside his jacket, at which point the officer shot him seven times. Another officer said he never saw Sample reach inside his jacket. Sample apparently told officers later he was reaching for his cigarettes. The district court denied the officer’s motion for summary judgment on the ground of qualified immunity as, when the facts were taken in the light most favorable to Sample, he had alleged a violation of a clearly established constitutional right. On appeal, the court affirmed. Under the facts alleged by Sample, the officer was not faced with a serious threat of physical harm to himself or his partner which would necessitate the use of deadly force. This case did not present a novel factual circumstance such that an officer would be unaware of the constitutional parameters of his actions: it had been "clearly established in this circuit for the last twenty years" that a criminal suspect had "a right not to be shot unless he [was] perceived to pose a threat to the pursuing officers or to others during flight." See

Trespasser Has No Legitimate Expectation of Privacy U.S. v. Hunyady, No. 04-1325 (6th Cir. May 17, 2005) Hunyady had broken into, and was living in, the home of his deceased father under a notice to vacate given by the personal representative of his father’s estate, who had been given control of the house. The representative informed agents that he had seen two machine guns and a silencer at the home and agreed to let them search the premises. Agents found the firearms and silencer that belonged to Hunyady and he was subsequently convicted of firearm offenses. He appealed the district court’s rejection of his motion to suppress the evidence. The Sixth Circuit affirmed, finding that Hunyady had no legitimate expectation of privacy at the property. Although the district court held he was a tenant by sufferance, this was a misapprehension of the relationship in which Hunyady, in fact, was a trespasser. Because Hunyady’s presence on the property was wrongful, and because he had a tenuous connection to an otherwise empty house, he had no legitimate expectation of privacy. See

Search Warrants - Good Faith Exception U.S. v. Laughton, No. 03-1202 (6th Cir. May 17, 2005) Police obtained a search warrant based on the investigating officer’s affidavit stating a confidential informant had made "multiple purchases of methamphetamine." It did not say explicitly that the informant had purchased the narcotics from the suspect, the defendant, and, although it stated the informant had observed "controlled substances at or in the residence or located on the person of" the suspect, it did not indicate where that residence was or when these observations were made. On the defendant’s motion to suppress, the district court denied, finding that the warrant, while issued without probable cause, was nevertheless valid under the "good faith" exception to the exclusionary rule announced by the Supreme Court in United States v. Leon, 468 U.S. 897 (1984), based upon the fact that the deputy had taken the information to a magistrate and was "able to furnish more than what has been deemed bare bones or a mere conclusion." The Sixth Circuit reversed, finding that the good faith exception to the exclusionary rule was not applicable to the circumstances surrounding the search and that the evidence seized should have been suppressed. The warrant failed to establish any nexus between the residence to be searched and the criminal activity attributed to the defendant in the affidavit; the affidavit also failed to indicate any connection between the address given, the criminal activity that occurred there, and the defendant. "No reasonable officer could have believed that the affidavit was not so lacking in indicia of probable cause as to be reliable." See

Section 1983 - Inmate Medications – Municipal Liability Calhoun v. Ramsey, No. 03-3036 (7th Cir. May 17, 2005) The jail’s medical policy required that medication prescribed to inmates prior to incarceration had to be verified and approved before it could be administered to the inmate, and any medication in the possession of a detainee at admission was to be withheld until verification of its proper use. The verification was to be made as soon as possible, within the time interval specified for administration of the medication on its container. The plaintiff unsuccessfully sought to obtain this verification prior to being admitted to the jail. The first of his eight medications was to be taken upon going to sleep, which meant no earlier than 10 p.m. at the jail. Shortly after 9:00 p.m., he was found in need of medical attention and hospitalized. In his Section 1983 action, he claimed deliberate indifference to his medical needs in violation of the Eighth Amendment. The district court dismissed and the Seventh Circuit affirmed over his challenges to jury instructions on municipal liability and the introduction of certain evidence. See

Interference With City Communications System U.S. v. Mitra, No. 04-2328, 2005 WL 949084 (7th Cir. Apr. 18, 2005) The city used a computer-based radio system for police, fire, ambulance, and other emergency communications. The "Smartnet II" system spread traffic across 20 frequencies, one of which was designated for control. A radio unit (mobile or base) used the control channel to initiate a conversation. Computer hardware and software assigned the conversation to an open channel. Mitra was charged and convicted of intentional interference with computer-related systems used in interstate commerce, 18 U.S.C.A. § 1030(a)(5), after he was found to have blocked or jammed the control channel. Once the control channel was interfered with, remote units were unable to communicate. The statute made it an offense to cause transmission damage (impairment or impediment to data, a program, or a system) of a "protected computer," as defined. Mitra appealed, arguing that even if the radio system contained a computer, his conduct did not violate § 1030, or that if it did, the statute exceeded Congress’s commerce power. The court disagreed. The Smartnet II was a protected computer because it contained a chip that performed high-speed processing in response to signals received on the control channel and, as a whole, was a "communications facility directly related to or operating in conjunction" with that computer chip, and was a "protected computer" because it was used in interstate communication. The fact that technology had changed since the statute was enacted (for example, by the inclusion of "computers" in iPods and cell phones) did not justify giving the statute a meaning other than as it was written. "Legislation is an objective text approved in constitutionally prescribed ways; its scope is not limited by the cerebrations of those voted for or signed it into law," and there was no constitutional obstacle to enforcing a broad, but clear statute. See

Warrantless Entry - Emergency U.S. v. Martinez, No. 04-30098 (9th Cir. May 16, 2005) In this case, the Ninth Circuit ruled a domestic disturbance constituted an emergency sufficient to justify a warrantless entry into a home, in the circumstances presented in the case. Police were responding to a call about an "out of control" male, and had responded to domestic disturbance calls, with observable injury, at the address before. Police found the female caller outside the house, and entered the premises because of angry yelling inside. They noticed two rifles and a shortened barrel shotgun resting on the couch, which the defendant stated he was trying to hide. The district court denied his suppression motion, and on appeal, the court affirmed. "The volatility of situations involving domestic violence make them particularly well-suited for an application of the emergency doctrine." The requirements of the emergency doctrine were satisfied in this case, justifying the officer’s warrantless entry into the home and subsequent seizure of the firearms. See

Arrest Warrant and Identity Theft Fulgencio v. City of Los Angeles, No. 03-56501 (9th Cir. May 23, 2005) The Ninth Circuit has held that the fact that an arrestee's identity had been stolen was irrelevant to the determination of whether a warrant was sufficiently specific. Fulgencio sued the city and police officers under Section 1983, claiming that his constitutional rights had been violated when he was arrested pursuant to a warrant that mistakenly identified him as the suspect, and when he was imprisoned without investigation of his claims of innocence. The district court entered summary judgment for the city and officers, and on appeal, the Ninth Circuit affirmed. The fact that the real suspect had made use of Fulgencio's stolen identity was irrelevant in determining whether the arrest warrant was sufficiently specific; the arrest was based on probable cause; and his due process rights were not violated by his five-day detention. "Because the warrant identified a suspect with Fulgencio's exact name, date of birth, driver's license number, height, hair color, eye color, and with a weight only five pounds different than Fulgencio's, a reasonable police officer could easily have believed that Fulgencio was the suspect." However, given the discrepant race and birthplace, and because Fulgencio was already detained by INS when city police officers arrived to arrest him, the officers could have taken more care to ascertain whether he was in fact the named suspect. The court, in concluding, noted that "in light of the growing problem of identity theft, law enforcement officers must take seriously claims of stolen identity."

Beware: Litigation Involving a Minor Baumann v. Capozio, No. 041908 (Va. April 22, 2005) Tyler, a 17-year-old, was injured during a fight with the defendant Capozio. Tyler’s parents sued as next friends of Tyler, alleging that Tyler incurred medical bills and other damages. An itemized list of medical bills that the parents incurred on behalf of Tyler totaled over $25,000. Upon reaching the age of majority, Tyler settled his claims against Capozio before trial and the court entered an order dismissing the case with prejudice. He executed a full release of "all known injuries and damages, as well as those unknown and unanticipated, resulting from said incident....", although neither parent was a party to the release. The parents then sought to recover medical expenses, interest and costs that they had incurred on behalf of their son arising from the fight. The defendant argued the claim was barred by accord and satisfaction, waiver, release and estoppel. The circuit court concluded that the plaintiffs had waived their claims to recover medical expenses in favor of their son. On appeal, the Virginia Supreme Court reversed. In cases involving an injury to a minor, two causes of action ordinarily arise: one for the minor’s damages for pain and suffering, permanent injury and impairment of earning capacity after attaining majority; the other is on behalf of the parent for loss of services during minority and necessary expenses incurred. The only issue was whether the parents had impliedly waived their claim. The parents "lost control of that litigation when their son reached the age of majority and signed a release that resulted in the settlement of that lawsuit. Plaintiffs in this appeal were not parties to the release" and were able to recover. See

People and Places

Welcome to New Members!

Joseph L. Howard, Jr., County Attorney, Stafford County, Virginia

Glenn Klein and Jerome Lidz of Harrang Long Gary Rudnick, P.C., Eugene, Oregon

Wesley C. Maness and William P. Remington, of Shannon Gracey Ratliff & Miller, LLP Thomas P. O'Donnell, Law Director, Highland Hills, Ohio

Christine B. Simpson, Town Attorney, Cary, North Carolina

Other Member News

Sona Pancholy We regret to advise members that Sona Pancholy, IMLA Associate Counsel, is leaving IMLA effective June 17, 2005, to work with IMLA Past President, Iris Jones, in the client services area of the Akin Gump law firm in Washington, D.C. We are sorry to lose this valued and talented employee, and wish her all the best in her new position. IMLA will begin recruiting to fill this vacancy immediately. Sona’s work is primarily in the program planning, legislative advocacy, and International Committee areas of IMLA. Should any of you know of individuals who you feel may be well suited for this position, please let us know. The position will be advertised shortly with a closing date of June 30, 2005. The salary pay range is $55,000 to $75,000 per annum. For further information, please contact IMLA General Counsel/Executive Director, Henry Underhill, at hunderhill@

Help Wanted IMLA is looking for a writer on a First Amendment topic for the September/October 2005 issue of the Municipal Lawyer magazine. The article deadline is July 18. Please contact me, Sophia Stadnyk, at sstadnyk@ for further details!

Federal Update

Anticipated Transportation Bill Includes Rights-of-Way and Predatory Towing Protections The current extensions of the Transportation Equity Act for the 21st Century (TEA-21) expire on May 31. The House bill, H.R. 3, passed in March and the Senate version, S. 732, is expected to be adopted very soon. One provision of particular relevance to IMLA members concern local governments' power to regulate their public rights-of-way with regards intelligent transportation systems (ITS). The ITS program established under TEA-21 was particularly favorable to one key private company providing this technology and allowed intelligent transportation contractors access to rights-of-way on roadways, even if this meant trumping local regulations. However, the substitute language, supported by National League of Cities and U.S. Conference of Mayors, "narrows this exemption and closes a potentially dangerous loophole affecting state and local authority to manage and preserve public rights-of-way, as Congress begins to rewrite federal telecommunications law." (Source: ). The second key language includes important protections from predatory tow truck operators, an issue IMLA has followed closely. Although it is limited, the provision seeks to restore local restore local control over towing and to clear confusion resulting from the Federal Aviation Administration Authorization (FAAA) Act of 1994, codified at 49 U.S. C. Section 14501(c). The proposal would grant state and local governments limited authority to regulate tow operations from private property that occur without permission from the property owner.

Spotlight On ... VoIP

FCC Order on 911 Access/VoIP On May 19, the Federal Communications Commission (FCC) issued an Order on so-called "web phones" or VoIP (Voice over Internet Protocol), which will set strict new 911 requirements for most Internet phone providers. "The Order places obligations on interconnected VoIP service providers that are similar to traditional telephone providers in that they enable customers to receive calls from and terminate calls to the public switched telephone network (PSTN). It does not place obligations on other IP based service providers, such as those that provide instant messaging or Internet gaming services, because although these services may contain a voice component, customers of these services cannot receive calls from and place calls to the PSTN." Interconnected VoIP providers must:

– deliver all 911 calls to the customer’s local emergency operator. This must be a standard, rather than optional, service feature.

– provide emergency operators with the call back number and location information of their customers (i.e., E911) where the emergency operator is capable of receiving it. Although the customer must provide the location information, the VoIP provider must provide the customer a means of updating this information, whether he or she is at home or away from home.

– by the effective date, inform their customers, both new and existing, of the E911 capabilities and limitations of their service.

– incumbent LECs are required to provide access to their E911 networks to any requesting telecommunications carrier. Interconnected VoIP providers must comply with these requirements, and submit to the FCC a letter detailing such compliance, no later than 120 days after the effective date of the Order. Rates are not specified.

The FCC stated its intention to adopt, in a future order, an advanced E911 solution that includes a method for determining the customer’s location without the customer having to self-report this information. The May 19 Order must first be published in the Federal Register and becomes effective 120 days afterwards. For the FCC News Release, see and For an article on the Order, see

At the same time, lawmakers in both the U.S. Senate and House introduced similar legislation to the FCC’s Order: The IP-Enabled Voice Communications and Public Safety Act requires VoIP providers to ensure that 911 and Enhanced 911 (E911) services are available to customers. Sen. Conrad Burns (R-Mont.) is sponsoring the bill in the Senate along with co-sponsors Bill Nelson (D-Fla.) and Hillary Rodham Clinton (D-N.Y.). Rep. Bart Gordon (D-Tenn.) is the House sponsor.

Canadian CRTC Ruling The Canadian Radio-television and Telecommunications Commission (CRTC) ruled on May 12 that it would regulate VoIP service only when it is provided and used as local telephone service. Charles Dalfen, Chairman of the CRTC, stated, "Why did we find that VoIP is a telephone service? Because Canadians use it as a telephone service, it's being sold as a telephone service and it functions as a telephone service. It provides two-way real-time voice communications to and from anyone with a telephone number on the public switched telephone network anywhere in the world. This decision is consistent with the focus in the Telecommunications Act on services rather than technologies." Due to concerns for public safety-related to access to emergency services by users of VoIP services, the Commission addressed the matter of 911 and Enhanced 911 (E911) service in advance of the other issues dealt with in the May 15 ruling (see Emergency service obligations for local VoIP service providers, Telecom Decision CRTC 2005-21, 4 April 2005 at ). For a copy of the CRTC decision, see

Endnotes

Mosque Loses Suit Against City According to a recent news report, a Muslim group, the Al Salam Mosque Foundation, lost its suit against the city of Palos Heights, Illinois. The suit arose after the foundation sought to convert a Christian church into a mosque and city council offered to pay the foundation $200,000 to drop its plan so the city could buy the church and convert it into recreation space. The foundation agreed, but the buyout fell apart when the mayor vetoed the deal. The group then sued, alleging a violation of the state’s Religious Freedom Restoration Act, a breach of contract, and other claims. Last week, a jury in the federal district court case reportedly found the city did not violate the group’s civil rights. See and

Taser: New Study Stun gun maker Taser International recently reported that an independent study found that its Taser X26 gun had little effect on the heart functions of healthy people. The complete study will be presented at the Society of Academic Emergency Medicine in New York starting this week. See Taser’s stun guns have been in the news this year after Amnesty International released a report questioning the safety of the guns (see ).

Smoking Bans Smokers’ rights groups, bar and tavern owners, and others are calling for a donation boycott of some major charities on the basis that the charities lobby for more restrictive smoking laws. Funding these charities (like the American Cancer Society), they claim, indirectly results in lost revenue to small businesses and smoker harassment. See

For additional legal news, please see the "What's New" page at the IMLA website, !

Talk to Us!

Please contact me, Sophia Stadnyk, with your news, questions, and comments at sstadnyk@ If we can be of assistance, please e-mail info@ or call us at (202) 466-5424.

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download