42 U.S.C. § 1983 | Civil Rights

Subscribe to 42 U.S.C. § 1983 | Civil Rights via RSS

They say revenge is a dish best served cold.

But in Filarksy v. Delia, No. 10-1018 (Apr. 19, 2012), it apparently came with a side dish of “in your face victory dance.”

Check out this story about Mr. Filarsky’s reaction to his unanimous Supreme Court win in that case.

Disclosure: along with my colleagues at the ABA Section of State and Local Government Law, I filed an amicus brief in the case on behalf of the American Bar Association supporting the lawyer’s claim to immunity. But we had no idea this was coming!Continue Reading Revenge Is A Dish Best Served … With A Side Dish Of “In Your Face!”

Here’s the motion for preliminary injunction we filed yesterday in the federal lawsuit challenging Hawaii’s exclusion of military personnel, their families, and university students who do not pay resident tuition, from the population count when reapportioning the state legislature.

The U.S. Census includes everyone who is a “usual resident” of Hawaii in its count of population — this includes servicemembers, their families, and university students. The Hawaii Constitution requires the Hawaii Reapportionment Commission to only count “permanent residents,” and in an opinion issued in January 2012, the Hawaii Supreme Court held this means the Commission must “extract” active duty military, their families, and university students who do not pay resident tuition from the 1.3 million+ persons counted by the Census as usual residents of Hawaii.

From the motion’s Introduction:

The Supreme Court maintains the touchstone of a state legislative reapportionment plan is population. Reynolds v. Sims, 377 U.S. 533…

Continue Reading Motion For Preliminary Injunction: Hawaii Legislative Reapportionment Must Include All Residents, And Cannot “Extract” Military, Military Families

In a per curiam unpublished decision, the U.S. Court of Appeals for the 11th Circuit affirmed the district court’s dismissal in Crystal Dunes Owners Ass’n v. City of Destin, No. 2011-14595 (Apr. 17, 2012) (per curiam opinion here, or below).

The plaintiffs own a strip of private beach in Destin, Florida. If the name of that locale sounds familiar, it’s because its the site of the Supreme Court’s recent decision in Stop the Beach Renourishment v. Florida Dep’t of Environmental Protection, in which the Court declined to confirm the existence of a “judicial takings” theory of recovery where the plaintiffs claimed the Florida Supreme Court changed the rules midstream and took their property as a consequence.

The latest case does not involve a claim of judicial takings, but has its genesis in the property owners’ beef with other branches of government, the city and the sheriff’s department.

Continue Reading 11th Cir: Property Owners Should Use Self-Help To Evict Private Beach Trespassers (Because Florida Self-Help Laws Always Work Out So Well)

The editorial in today’s Honolulu Star-Advertiser writes:

The state Supreme Court’s ruling in January that determined how boundary lines should be drawn for this year’s election in August made scant reference to the agency created primarily for that purpose: the U.S. Census Bureau. That is why a lawsuit in federal court should result in the prompt ordering of the lines to be redrawn to conform with the nationally customary method of including military and out-of-town students in the population count, in time for the upcoming elections.

…

The commission noted in its final report last year that the U.S. Supreme Court had ruled in 1962 that a state could not exclude military people from the population base “based solely on the nature of their employment,” but that seems to be what the state’s high court mistakenly has done.

In 48 other states, lines are drawn according to the Census Bureau’s…

Continue Reading Star-Advertiser: “Census should guide election boundaries”

The issue in in Filarksy v. Delia, No. 10-1018, yesterday’s opinion in which the unanimous Supreme Court held that a private lawyer who was retained by a local government is entitled to assert qualified immunity, was whether the lawyer was prohibited from asserting the defense merely because he was not formally employed by the city.

The specific issue before the Court was whether Mr. Filarsky, a private lawyer retained by the City of Rialto, California to conduct a portion of the city’s internal investigation of a city employee, was entitled to claim the same qualified immunity that is generally available to government employees acting in good faith who are defendants in civil rights actions under 42 U.S.C. § 1983. The Ninth Circuit concluded he could not avail himself of that defense because he did not get a W-2 from Rialto. The Supreme Court unanimously reversed.

[Disclosure: along with…

Continue Reading Some Thoughts About The Supreme Court’s Immunity Decision

Today, the U.S. Supreme Court issued a unanimous opinion (by Chief Justice Roberts) in Filarksy v. Delia, No. 10-1018, holding that a private lawyer who was retained by a local government is entitled to assert qualified immunity. Along with my colleagues at the ABA Section of State and Local Government Law, I filed an amicus brief in the case on behalf of the American Bar Association supporting the lawyer’s claim to immunity.

The issue in the case involves the immunities that lawyers may be entitled to claim in civil rights actions under 42 U.S.C. § 1983. It’s not a land use case, but every land use and takings lawyer must know the contours of section 1983 law. The specific issue before the Court was whether Mr. Filarsky, a private lawyer retained by the City of Rialto, California to conduct a portion of the city’s internal investigation of a city…

Continue Reading SCOTUS: Private Attorneys Hired By Govt Entitled To Assert Qualified Immunity

Here’s the latest in the federal court reapportionment lawsuit, filed last week (we represent the plaintiffs). Above is the audio archive of my appearance yesterday morning on KHVH’s Rick Hamada Program. KITV also aired this report on the case. Posted below is the District Court order granting the request for a three-judge district court.

Order Granting Plaintiffs’ Request for a Three-Judge Court Pursuant to 28 U.S.C. § 2284, Kostick v. Nago, N…Continue Reading Latest In Federal Court Reapportionment Case

It may be Good Friday (an official State Holiday in Hawaii), but the federal courts are open, and today, on behalf of six plaintiffs including several veterans, we filed a lawsuit challenging under the Equal Protection Clause the State of Hawaii’s practice of excluding military personnel, their families, and university students who pay nonresident tuition from the population count when reapportioning the state legislature.

The U.S. Census counts everyone who is a “usual resident” of Hawaii in its count of population — including military, their families, and university students — but the Hawaii Constitution requires the Hawaii Reapportionment Commission to only count “permanent residents.” In an opinion issued in January 2012, the Hawaii Supreme Court held this means the Commission must “extract” active duty military, their families, and university students who pay nonresident tuition from the 1.3 million+ persons counted by the Census as usual residents of Hawaii. This…

Continue Reading Federal Court Lawsuit: Hawaii Legislative Reapportionment Cannot Exclude Military, Military Families

Today is Good Friday, an official holiday in the State of Hawaii, so we’re reposting our annual recounting of how it came to be that the State celebrates the date of the crucifixion. Turns out that it doesn’t really, it’s just coincidence that the “spring holiday” occurs on the same day. Or so says the Ninth Circuit. Continue Reading 9th Circuit On The Constitutionality Of Hawaii’s Good Friday Holiday: Go Shopping Or Something

Here is the Reply Brief in Harmon v. Kimmel, No. 11-496 (filed Mar. 20, 2012), the case in which a Manhattan property owner is challenging New York’s rent control law as unconstitutional:

Respondents confuse the issues with their scattershot assertions that rent stabilization concerns merely “landlord tenant relations,” “economic regulation,” “price controls” and “economic liberties,” and is just a matter of political and legislative policy. They disregard controlling precedent of this Court and seemingly concede that the Court of Appeals was mistaken. They also each acknowledge the existence of the “different case” standard set forth in Yee v. City of Escondido, 503 U.S. 519, 528 (1992). However, despite having argued otherwise to this Court and to the Court of Appeals in prior litigation, the State now argues that rent stabilization does not present the elements of the “different case” standard. The conflcts with decisions of this Court and…

Continue Reading Petitioner’s Reply Brief In New York Rent Control Case: “Permanent dispossession is nine-tenths of this law”