TCAA/TML Legal Defense Program: Amicus Briefs and Comments Filed

TCAA, in conjunction with the Texas Municipal League, files amicus briefs and comments in support of cities on many issues. To keep up to date on the status of these issues, go to:

Sign Regulations (On-Premise v. Off-Premise Distinction): City of Austin v. Reagan National Advertising, Inc., No. 20-1029 in the United States Supreme Court. On August 25, 2020, the U.S. Court of Appeals for the Fifth Circuit held that the City of Austin sign code’s distinction between “on-premises” and “off-premises” signs is unconstitutional. Austin’s sign code allowed on-premises digital signs, but it prohibited off-premises digital signs. Two billboard companies applied to convert existing off-premises billboards to digital, and the city denied the applications.

The city defines off-premises sign based, in part, on its content. Explained simply, the code provided that on-premises signs advertise a business located on those premises. By exclusion, the code defined an off-premises sign as any sign other than an on-premises one.  

The U.S. Fifth Circuit Court of Appeals court found the distinction unconstitutional because, in 2015, the U.S. Supreme Court’s sweeping holding in Reed v. Town of Gilbert, 576 U.S. 155 (2015) essentially concluded that – if one has to read the sign to know how to regulate it – the sign implicates protected First Amendment speech and thus strict scrutiny.  According to the Fifth Circuit Court of Appeals:

“Austin’s Sign Code permits on-premises sign owners to install digital sign faces that allow the copy to be changed electronically, while off-premises sign owners are forbidden from using this technology. To determine whether a sign is on-premises or off-premises, one must read the sign and ask: does it advertise ‘a business, person, activity, goods, products, or services not located on the site where the sign is installed, or that directs persons to any location not on that site?’”

The answer, according to the court, was yes, which means the court struck down the city’s ban on off-premises digital billboards. On appeal to the United States Supreme Court, the International Municipal Lawyers Association, Michigan Municipal League, Texas Municipal League, Texas City Attorneys Association, Louisiana Municipal Association, Kentucky League of Cities, and Tennessee Municipal Attorneys Association joined together to support the City of Austin’s Petition for Writ of Certiorari. 

Amici argue, among other things, that – since the Court’s decision in Reed  – they have been unable to definitively advise their members as to whether they can rely on Metromedia, Inc. v. San Diego, 453 U.S. 490 (1981) to distinguish between on- or off-premises signs (and a host of other issues involving arguable content based distinctions common to sign regulations), such as distinguishing between commercial and noncommercial speech as allowed in Central Hudson Gas & Elec. Co. v. Public Serv. Comm. of N.Y., 447 U.S. 557 (1980).

Because this case presents an ideal vehicle to clarify an important area of First Amendment jurisprudence that affects virtually every local government in this country, Amici argue, the Court should now grant certiorari and resolve a circuit split.  On- v. off-premise distinctions are very common in local government sign codes. The confusion in the circuits arises not only from the narrow issue of on- or off-premise distinctions, but more broadly on the question of whether the simple “need to read” sign to determine its import renders it impermissibly content based. The issues are intertwined and have spawned divergent opinions among the circuits.

The brief was filed on February 8, 2021, and the writ is pending.

Qualified Immunity: Vasquez v. Amador, Case No. 20-585 in the Supreme Court of the United States. TML and TCAA joined an amicus brief in support of two law enforcement officers’ petition for certiorari. The officers responded to a domestic violence situation. The individual had assaulted his family, assaulted one of the officers with a knife, told officers they would not take him alive, and refused to drop the knife despite repeated orders to do so. The officers fatally shot the individual when he put his hands up but he still had a knife in his hand and was walking toward the police car with a loaded weapon in it. Amici argue that the Fifth Circuit: (1) improperly found an Eighth Amendment violation because the use of force was justified; and (2) improperly denied qualified immunity by applying a “snapshot” standard of review rather than reviewing the totality of the circumstances. Amici also argued the case cited by the Fifth Circuit to support its finding that the law was clearly established to find an Eighth Amendment violation did not apply. Unlike in the case the Fifth Circuit cited, the threat at the time of the use of force was still present.  The brief was filed on February 1, 2021.