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  https://www.tml.org/p/AmicusBriefUpdate_011118.pdf.

Excessive ForceVann v. City of Southhaven, Mississippi, No. 16-60561, in the United States Court of Appeals for the Fifth Circuit. This excessive force case began when a peace officer (Sgt. Logan) shot at a “boxed in” vehicle containing a fleeing suspect who hit him and then ran over his arm. A panel of the Fifth Circuit concluded that there is a question of fact as to the officer’s immunity. The Texas Municipal League, along with the National Association of Police Officers, the Louisiana Municipal Association, and the Mississippi Municipal League jointly filed as Amici Curiae.

Amici argue that Vann’s claim relating to the officer’s “intent” isn’t relevant. The panel failed to apply the purely objective test required for analyzing a Fourth Amendment claim and immunity. Because the test is objective, it cannot rest on the intent of any officer.

The majority opinion suffers the infirmities the U.S. Supreme Court identified and corrected in Mullenix v. Luna, 136 S. Ct. 305 (2015). In this case, the majority failed to analyze or appropriately identify clearly established law at the degree of particularity required by precedent. As in Mullenix, “[i]n this case, the Fifth Circuit held that [Sgt. Logan] violated the clearly established rule that a police officer may not ‘use deadly force against a fleeing felon who does not pose a sufficient threat of harm to the officer or others.’”

That analysis is incorrect because the panel relied on another U.S. Supreme Court opinion that “turned on” the factual assertion the fleeing vehicle was three or four houses down the block moving away from officers when the officer fired. This case is inapposite:  Vann’s vehicle catapulted Sgt. Logan onto its hood, after Sgt. Logan shot Vann, and Vann’s tire rolled over Sgt. Logan’s arm after he fell off the hood onto the pavement.

The brief in support of the city’s motion for rehearing en banc was filed on January 4, 2018.

Hotel Occupancy Taxes: City of San Antonio v. Hotels.com, No. 16-50479 in the Fifth Circuit. TML filed an amicus brief in support of the City of San Antonio’s motion for rehearing en banc. In a November 29 opinion, a Fifth Circuit Panel reversed an $84 million dollar judgment awarded to the 173 Texas cities in the class against 11 online travel companies for the underpayment of hotel occupancy taxes. In adherence to the Erie doctrine, the Panel held that because the Court maintained diversity jurisdiction it was bound to follow the decisions of intermediate state courts unless there is convincing evidence that the Supreme Court of Texas would decide differently. Consequently, the Panel relied on a 2011 Houston Court of Appeals decision affirming summary judgment in favor of online travel companies in its case involving the City of Houston’s collection of hotel occupancy taxes to determine that local hotel occupancy taxes should be remitted only on the discounted wholesale rate paid by the online travel company to the hotel, rather than on the retail rate paid by the customer.

TML argues that the Supreme Court of Texas would find grounds for distinguishing the present case from the case involving the City of Houston’s hotel occupancy tax ordinance, which justifies a rehearing en banc. In its 2011 opinion the Houston court expressly based its decision on the limited summary judgment evidence before it as compared to the extensive evidentiary record and jury verdict in the current case. Further, relying on the Houston court’s decision leads to the absurd result of hotel customers paying different amounts of city hotel occupancy taxes when paying the same room rate for the same room, in the same hotel, on the same night. Collecting city hotel occupancy taxes on the wholesale amount paid by the online travel company to the hotel through the merchant model is patently unequal and lacks uniformity for all parties involved, including the city, the hotel, and the taxpaying customer. The brief was filed on January 3, 2018.

ImmunityHarris County v. Annab, No. 17-0329 in the Supreme Court of Texas.  This case relates to the intentional tort exception to the waiver of sovereign immunity.  A Harris County deputy with a history of bad behavior shot Annab while off-duty at an apartment complex. Annab alleges Harris County negligently used and misused the deputy’s firearm by authorizing, approving, and failing to withdraw its approval and authorization for him to possess and use the firearm. Annab argues that without this approval and authorization, the deputy was not entitled to use or possess the firearm. Further, Annab contends that taking her factual allegations as true, it was reasonably foreseeable an incident like the one at issue in this case would occur if Harris County continued to authorize the deputy’s possession and use of the firearm.

TML and TCAA argue that the limited waiver of immunity under the Texas Tort Claims Act does not apply to intentional acts. “[T]o sue a governmental unit under the Act’s limited waiver, a plaintiff may allege an injury caused by negligently using tangible property, but to be viable, the claim cannot arise out of an intentional tort.”  Moreover, TML and TCAA argue that the county has no common law duty as an employer to protect the public from the deputy’s actions as an off-duty employee. Nor does the county as government have any tort duty to protect the public at large in circumstances such as these. Duties of the state to protect the public at large do not give rise to assumed duties of care to individual members of the public, lest the state would become the insurer of any injury caused by inadequate law enforcement. The brief was filed on December 20, 2017.

F.C.C. PreemptionGN Docket No. 17-83, In the Matter of Accelerating Broadband Deployment at the Federal Communications Commission.  The FCC recently created a committee known as the Broadband Deployment Advisory Committee (BDAC). The mission of the BDAC is to “make recommendations to the Commission on how to accelerate the deployment of high-speed Internet access by reducing and/or removing regulatory barriers to infrastructure investment.”  The framing of that mission statement portends that city right-of-way management will be considered a regulatory barrier to infrastructure investment. To the contrary, Texas cities regulate their rights-of-way in trust for the public, and are mandated by the Texas Constitution to seek fair market value for their use. In the comments, TML voiced its concerned that the lack of local government representation on the BDAC may result in harmful recommendations.  Moreover, the confidential nature of some of the BDAC’s proceedings is troubling in light of the public interest in its work. To counter those issues, TML resubmitted its comments and reply comments from WC Docket No. 16-421, which lay out our concerns with federal right-of-way preemption, to this docket. The comments were filed on December 18, 2017.

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