I am working on a First Amendment lawsuit against the City of Springfield, Illinois concerning its unconstitutional municipal panhandling ordinance and the City’s unconstitutional treatment of people who panhandle.

The suit has received some interesting media coverage this week, including this detailed article from the State Journal Register, and this post on the WSJ Law Blog.

Following in the footsteps of it’s awful 2010 decision in Berghuis v. Thompkins, the Supreme Court continued to erode suspects’ Fifth Amendment rights with its really bad decision in Salinas v. Texas.

The facts of Salinas are pretty simple. Two guys were shot in Houston. The only evidence collected from the scene were some shotgun casings. Salinas, who’d been at the victims’ house earlier in the night, was a suspect. Cops asked him to come to the station to answer questions. Salinas complied. He wasn’t formally arrested, nor was he read his Miranda rights.

After about an hour of questioning, the cops asked Salinas if the shells at the scene would be a match with Salinas’ shotgun if they tested it. Salinas didn’t answer, but (according to the totally unbiased cops) he acted uncomfortable and started biting his lip and shuffling his feet.

Salinas was charged. As is his right, he did not testify at trial. Nonetheless, cops testified about his supposedly incriminating reaction to their questions. After his conviction, Salinas appealed, arguing that this testimony violated his Fifth Amendment right to remain silent and not have that silence used against him in court.

In a 5-4 decision authored by Justice Alito the court ruled that Salinas’ silence could be used against him because Salinas never invoked his right to remain silent. According to the decision, Salinas should have known (without even being read his rights) that he had to make a formal, affirmative statement invoking those rights in order to avail himself of the Fifth Amendment’s protections. (Justices Thomas and Scalia, who were part of Alito’s majority, would have taken it even a step further — they thought that Miranda didn’t even apply to Salinas because he hadn’t been formally arrested.)

In Berghuis, the Court already made it harder to invoke the right to remain silent by finding that just remaining silent and refusing to answer questions wasn’t an invocation of Miranda rights. Rather, the person needs to “unambiguously” invoke his right to remain silent by stating aloud that he is doing so. There, Justice Kennedy wrote that a suspect who refused to answer questions for nearly three hours despite repeated questioning by police still somehow knowingly and intelligently waived his Miranda rights by finally responding to some questions hours later. Apparently, the suspect is supposed to deliver a short treatise on Miranda and its progeny in order to avail himself of its protections.

The real world implications are pretty much obvious. Police interrogations are inherently unbalanced situations. The police have the power and the experience. Police want suspects to waive Miranda and confess. And they are going to invoke the means available to them to get what they want. The average suspect or arrestee, on the other hand, is not a constitutional scholar, and won’t understand that there is now this requirement of an unambiguous oral statement for him to be entitled to his constitutional rights (rather than those rights just, you know, applying to the people they’re supposed to protect in a way that makes sense). Salinas and Berghuis provide police with a powerful incentive to (a) delay in informing the suspect of his rights; and (b) continue questioning in circumstances where the suspect has indicated an unwillingness to talk to the police, but hasn’t formally stated that he is invoking his constitutional rights. The Supreme Court has countenanced exactly that type of police work.

Northern District of Illinois Judge Sharon Johnson Coleman granted a permanent injunction on enforcement of the portion of the Illinois Eavesdropping Act that makes it illegal for a citizen to make an audio recording of law enforcement officials performing their public duties in public places. The case is ACLU v. Alvarez. Read more here.

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Today a Northern District of Illinois jury returned a verdict of $50,000.75 in favor of the plaintiff in the case Ratliff v. Carroll, 10 C 739. The plaintiff, Pares Ratliff, was about to put air in his tires when the police approached him and said they had a warrant for his arrest. Ratliff responded that that wasn’t true. After a back and forth exchange, Ratliff said that he’d go with the officers if they gave him the $.75 he’d just spent to put air in his tires. Predictably, the officers didn’t like this comment. They arrested him for assault (claiming he threatened them) and left his car unattended on the street, where it was stolen. The gas station video contradicted the officers’ version of events.

The jury awarded the plaintiff the wonderfully precise sum of $50,000.75 — comprising $30,000 in compensatory damages, $15,000.75 in punitives against one officer and $5,000 in punitives against another — but not before sending an awesome note to the judge, asking if they could make the officers perform 100 hours of community service!

Congratulations to the plaintiffs’ lawyers Jared Kosoglad, Michael Oppenheimer and Bruce Mosbacher on their great work!

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The U.S. Supreme Court heard arguments yesterday in two cases involving drug sniffing dogs.

In Florida v. Jardines, 11-564, the court is considering whether police officers in Miami violated the 4th Amendment when they brought Franky, a dog trained to identify the odor of narcotics, to nose around the exterior of a private home without a warrant. Franky detected the odor of marijuana, and police obtained a warrant to search the house. That led to felony charges against Joelis Jardines. The Florida Supreme Court upheld the decision to suppress the pot, finding that the police tactic of using Franky to smell around a suspected grow house without a warrant amounted to an unconstitutional search. The U.S. Supreme Court accepted review of the case, which tests the outer boundaries of permissible police use of narcotics sniffing dogs.

In 2005, the Supreme Court approved warrantless drug sniffs of cars during routine traffic stops in the case Illinois v. Caballes. However, the sanctity of the home has always been the core concern of 4th Amendment jurisprudence. During oral argument some justices questioned whether a warrantless house sniff passed the smell test. Justice Scalia, in particular, likened the case to Supreme Court precedent which held that police cannot without a warrant, intrude on the “curtilage” (immediately surrounding areas) of a home to see what they could not see from the public sidewalk.

Other justices likened Jardines to the 2001 case Kyllo v. United States, in which the Court put limits on law enforcement’s use of technology, such as thermal imaging devices, to scan the exterior of a home to obtain evidence that the residents were growing marijuana inside.

Justice Kagan was skeptical of Florida’s argument that there was a fundamental distinction between using Franky’s “god-given” nose to conduct the search as opposed to a mechanical device to gain the same information. Kagan asked whether police could walk up to doors with a “smell-o-matic” device that gleaned the same information as a drug sniffing dog.

Justice Ginsburg, likewise, didn’t like where Florida’s arguments led: She questioned whether, under their logic police could in “a neighborhood that’s known to be a drug-dealing neighborhood, just go down the street, have the dog sniff in front of every door, or go into an apartment building?” Gregory Garre, who represented Florida, agreed that would be constitutionally permissible.

In Florida v. Harris, the court will consider whether drug sniffing dogs are sufficiently reliable that an “alert” from such a dog should be considered probable cause to conduct a search. The Florida Supreme Court held that the government must provide evidence to establish the reliability of the dog’s alert including “the dog’s training and certification records, … field performance records (including any unverified alerts), and evidence concerning the experience and training of the officer.” The Supreme Court seemed disinclined to mandate certain qualifications before a dog could be deemed sufficiently reliable.

A decision is expected on both cases by summer.

There is some good news from the Second Circuit Court of Appeals today! In Windsor v. United States, 12-2335, the court struck down section 3 of the Defense of Marriage Act, which bars federal agencies from recognizing same-sex couples. Edith Windsor challenged the IRS’s denial of the spousal deduction under federal estate tax law. She was legally married under New York State law to Thea Spyer, who passed away in 2009. Applying an “intermediate scrutiny” standard (analyzing whether the law was “substantially related to an important government interest”), the court found that DOMA violated the equal protection clause. The court wrote:

Even if preserving tradition were in itself an important goal, DOMA is not a means to achieve it. As the district court found: “because the decision of whether same-sex couples can marry is left to the states, DOMA does not, strictly speaking, ‘preserve’ the institution of marriage as one between a man and a woman. … Law (federal or state) is not concerned with holy matrimony. Government deals with marriage as a civil status–however fundamental–and New York has elected to extend that status to same-sex couples. A state may enforce and dissolve a couple’s marriage, but it cannot sanctify or bless it. For that, the pair must go next door.

The full opinion is available from the Second Circuit’s website.

The Seventh Circuit struck down a portion of the City of Chicago’s municipal disorderly conduct statute today. Specifically, the Court found that Subsection D of the law, which criminalizes an individual’s behavior when he “knowingly . . . fails to obey a lawful order of dispersal by a person known by him to be a peace officer under circumstances where three or more persons are committing acts of disorderly conduct in the immediate vicinity, which acts are likely to cause substantial harm or serious inconvenience, annoyance or alarm” was unconstitutional.

The court found that this Subsection was unconstitutionally overbroad under the First Amendment and unconstitutionally vague under the 14th Amendment. Judge Flaum wrote for a unanimous panel: “Subsection D may still implicate protected expression because, once triggered, it may be applied to disperse people engaged in peaceful speech or expressive conduct, including on topics of public concern. … Accordingly, to the extent that Subsection D authorizes dispersal when an assembly creates or is threatened by “substantial harm,” it does not improperly infringe upon protected speech. We cannot say the same, however, for authorizing dispersal on the basis of “serious inconvenience, annoyance or alarm.””

The full text of the opinion is available here.

Pursuant to 42 U.S.C. Sec. 1988, the a prevailing plaintiff in a civil rights case is entitled to an award of attorneys’ fees. The purpose of this statute is to incentivize competent lawyers to take on civil rights cases to vindicate important constitutional rights, even where it’s unlikely that the plaintiff will recover significant money damages. Typically, attorneys’ fees are calculated as the hours reasonably expended on the case multiplied by the attorneys’ reasonable hourly rate.

Since the City of Chicago implemented a no-settlement policy for most police misconduct cases in 2010, many small-damages cases have gone to trial in the Northern District of Illinois. Plaintiffs have had mixed success. As predicted, many small cases have resulted in defense verdicts, and case filings are down. The real risk of the city’s policy was that by forcing to trial a case that could be settled for a small amount of money, they could be exposing themselves to a large fee award for the plaintiff’s attorneys, even if the plaintiff only recovered a small amount.

There has been a lot of litigation on fee awards in low or nominal damages cases in the past years since so many of these small cases have gone to trial. The fee decision in the case Aponte v. City of Chicago, 09 C 8082, out today from Judge John Darrah, reaches a particularly harsh result.

The plaintiff in that case brought claims against five police officers relating to an August 2009 search of his home. At trial, the plaintiff prevailed on one claim (illegal search) against one officer. In closing arguments, plaintiff’s counsel had requested that they jury award his client somewhere in the neighborhood of $25,000. The jury awarded him $100.00 in compensatory damages and no punitive damages.

Relying on the Supreme Court decision in Farrar v. Hobby, the court decided not to award any attorneys fees to plaintiff’s counsel, finding that although the plaintiff technically “prevailed” the victory was de minimis when compared to the recovery sought by counsel.

In my humble opinion, the decision runs contrary the purpose of Section 1988—that is to compensate attorneys who take on and win cases that vindicate a citizens’ constitutional rights, even where the financial recovery is not great. This result (and similar recent decisions) will create a serious barrier to justice and access to the courts. If skillful attorneys such as counsel in Aponte get nothing at all after winning a case like this, how could any attorney bear the risk of taking on civil rights cases? That leaves an individual like Mr. Aponte, whose constitutional right to be secure in his own home was violated, without legal recourse. That is not what the law requires.

The full text of the decision is here.

In a 5-3 decision, the U.S. Supreme Court ruled that the Privacy Act of 1974 does not authorize suits for mental or emotional distress when the government violates the Act.

In FAA v. Cooper, Cooper lost his pilot license after the FAA was told by the Social Security Administration that he had received disability benefits because of an illness.  The records were disclosed to the FAA as part of an “Operation Safe Pilot” probe targeting medically unfit pilots.  At the time Cooper was receiving benefits, the FAA did not give licenses to anyone taking medication for the AIDS virus.

Cooper’s suit did not allege economic harm in his complaint.  He did however sue for “humiliation, embarrassment, mental anguish, fear of social ostracism, and other severe emotional distress.”

Writing for the majority, Justice Alito stated that the Privacy Act of 1974 provides for “actual damages” if the United States intentionally or willfully violates the law.  However, the term “actual damages” varies based on the statute being interpreted, and under the Privacy Act damages can only be recovered for pecuniary loss.

In a vigorous dissent, Justice Sotomayor wrote that the majority opinion “cripples the Act’s core purpose of redressing and deterring violations of privacy interests.”  She criticized the majority’s interpretation of actual damages, as the majority conceded that its interpretation was not compelled by the plain text of the Act nor required “by any other traditional tool of statutory interpretation.”

You can read the full opinion here.

Gina M. Spada is an attorney practicing in Chicago and the surrounding counties handling privacy related matters for both individuals and businesses.  You can learn more about her here: www.gspadalaw.com.

The Illinois House of Representatives voted down a bill on March 21 that would have amended the state’s eavesdropping law to permit citizens to make audio recordings of police officers doing their jobs in public places. Illinois’ strange eavesdropping law, which I’ve written about in the past, has been used by police in several high-profile incidents to charge civilians with felonies when they tried to record police misconduct.

Rep. Elaine Nekritz introduced a bill to amend the statute. Her bill, H.B. 3944, would have brought Illinois in line with other states, which, by and large, permit audio and video recording with the consent of one party to the conversation. Moreover, the bill reflected the reality that police officers really shouldn’t have an expectation of privacy when they perform public duties in public places. But, disappointingly, opponents of the bill shot it down in a 59-45 vote.

Meanwhile, on March 2, Cook County Judge Stanley Sacks found the eavesdropping law unconstitutional in the case of the artist Christopher Drew who was charged with a felony under the law for having a friend videotape his arrest. Judge Sacks noted: “The Illinois Eavesdropping Statute potentially punishes as a felony a wide array of wholly innocent conduct. A parent making an audio recording of their child’s soccer game, but in doing so happens to record nearby conversations, would be in violation of the Eavesdropping Statute.”

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