By: Lisa Soronen, State and Local Legal Center, Washington, D.C.
The State and Local Legal Center (SLLC) files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations representing state and local governments.
The SLLC filed an amicus brief in all of the cases discussed below.
The U.S. Supreme Court’s 2020-21 term produced a bumper crop of local government cases. Chicago, Philadelphia, Baltimore, San Antonio, and San Francisco were all named parties in SCOTUS cases. Unfortunately, victories for local governments were few and far between. This article covers four of the most important cases for local governments decided this term. The cases involve a wide range of constitutional issues from Fourth Amendment seizures to First Amendment Free Exercise of religion to Fifth Amendment takings.
In a 5-3 decision in Torres v. Madrid the Supreme Court held that a person may be “seized” by a police officer per the Fourth Amendment even if the person gets away. In this case, police officers intended to execute a warrant in an apartment complex. Though they didn’t think she was the target of the warrant, they approached Roxanne Torres in the parking lot. Torres got in a car. According to Torres, she was experiencing methamphetamine withdrawal and didn’t notice the officers until one tried to open her car door. Though the officers wore tactical vests with police identification, Torres claimed she only saw the officers had guns. She thought she was being car jacked and drove away. She claimed the officers weren’t in the path of the vehicle, but they fired 13 shots, hitting her twice. Torres drove to a nearby parking lot, asked a bystander to report the attempted carjacking, stole another car, and drove 75 miles to a hospital. Torres sued the police officers claiming their use of force was excessive in violation of the Fourth Amendment’s prohibition against “unreasonable searches and seizures.” The officers argued, and the lower court agreed, that Torres couldn’t bring an excessive force claim because she was never “seized” per the Fourth Amendment since she got away.
The Supreme Court, in an opinion written by Chief Justice Roberts disagreed. Relying on common law, the Court held that “application of physical force to the body of a person with intent to restrain is a seizure, even if the force does not succeed in subduing the person.”
In a four-page opinion the Supreme Court held unanimously in Caniglia v. Strom that police community caretaking duties don’t justify warrantless searches and seizures in the home. During an argument with his wife, Edward Caniglia put a handgun on their dining room table and asked his wife to “shoot [him] now and get it over with.” After spending the night at a hotel Caniglia’s wife couldn’t reach him by phone and asked police to do a welfare check. Caniglia agreed to go to the hospital for a psychiatric evaluation after officers allegedly promised not to confiscate his firearms. The officers went into his home and seized his guns regardless. Caniglia sued the officers for money damages claiming that he and his guns were unconstitutionally seized without a warrant in violation of the Fourth Amendment.
In Cady v. Dombrowski (1973), the Court held that a warrantless search of an impounded vehicle for an unsecured firearm didn’t violate the Fourth Amendment. According to the Court in that case “police officers who patrol the ‘public highways’ are often called to discharge noncriminal ‘community caretaking functions,’ such as responding to disabled vehicles or investigating accidents.” The First Circuit ruled in favor of the police officers in Caniglia extending Cady’s “community caretaking exception” to the warrant requirement beyond the automobile and to the home.
Justice Thomas, writing for the Court, rejected the First Circuit’s extension of Cady. Justice Thomas noted the Cady opinion repeatedly stressed the “constitutional difference” between an impounded vehicle and a home. Justice Kavaunagh, in a concurring opinion, offered a view helpful to local governments: “the Court’s exigency precedents, as I read them, permit warrantless entries when police officers have an objectively reasonable basis to believe that there is a current, ongoing crisis for which it is reasonable to act now.”
The Supreme Court held unanimously in Fulton v. Philadelphia that the City of Philadelphia violated the First Amendment when it refused to contract with Catholic Social Service (CSS) to certify foster care families because CSS refuses to work with same-sex couples.
When the city discovered that CSS wouldn’t certify same-sex couples to become foster parents because of its religious beliefs the city refused to continue contracting with CSS. The city noted CSS violated the non-discrimination clause in its foster care contract. CSS sued the city claiming its refusal to work with CSS violated the Free Exercise and Free Speech Clauses of the First Amendment.
Chief Justice Roberts, writing for the Court, concluded that the city violated CSS’s free exercise of religion rights. He noted that in Employment Division, Department of Human Resources of Oregon v. Smith (1990), the Court held that “laws incidentally burdening religion are ordinarily not subject to strict scrutiny under the Free Exercise Clause so long as they are neutral and generally applicable.” But, the Court held, Smith didn’t apply in this case because the city’s non-discrimination clause allowed for exceptions, meaning it wasn’t generally applicable. Because Smith didn’t apply, the city’s refusal to contract with CSS had to be evaluated under strict scrutiny.
The city cited three interests in ensuring non-discrimination when certifying foster families: maximizing the number of foster parents, protecting the city from liability, and ensuring equal treatment of prospective foster parents and foster children. According to the Court: “Maximizing the number of foster families and minimizing liability are important goals, but the City fails to show that granting CSS an exception will put those goals at risk. If anything, including CSS in the program seems likely to increase, not reduce, the number of available foster parents. As for liability, the City offers only speculation that it might be sued over CSS’s certification practices.”
As for equal treatment of prospective foster parents and foster children, Chief Justice Roberts wrote: “We do not doubt that this interest is a weighty one, for ‘[o]ur society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.’ On the facts of this case, however, this interest cannot justify denying CSS an exception for its religious exercise. The creation of a system of exceptions under the contract undermines the City’s contention that its nondiscrimination policies can brook no departures.”
In Cedar Point Nursery v. Hassid the Supreme Court held 6-3 that a California regulation allowing union organizers access to agriculture employers’ property to solicit support for unionization up to three hours a day, 120 days a year is a per se physical taking under the Fifth and Fourteenth Amendments.
The Fifth Amendment Taking Clause, applicable to the states through the Fourteenth Amendment, states: “[N]or shall private property be taken for public use, without just compensation.”
In this case agriculture employers argued California’s union access regulation “effected an unconstitutional per se physical taking . . . by appropriating without compensation an easement for union organizers to enter their property.” The Supreme Court agreed.
According to Chief Justice Roberts, writing for the majority, “[w]hen the government physically acquires private property for a public use, the Takings Clause imposes a clear and categorical obligation to provide the owner with just compensation.” But when the government “instead imposes regulations that restrict an owner’s ability to use his own property” the restrictions don’t require “just compensation” unless they go “too far.”
The Court held the access regulation “appropriates a right to invade the growers’ property” and therefore constitutes a per se physical taking rather than a regulatory taking. “Rather than restraining the growers’ use of their own property, the regulation appropriates for the enjoyment of third parties the owners’ right to exclude.”
Local government officials routinely go onto private property temporarily to do police work and conduct inspections, among many other reasons. Importantly, the Court stated that “government searches that are consistent with the Fourth Amendment and state law cannot be said to take any property right from landowners” and “government health and safety inspection regimes will generally not constitute takings.”
Many of the Supreme Court decisions this term were narrow. Caniglia, Fulton, and even Cedar Point Nursery are examples of that trend. So while all three of these cases were losses for local governments (as was Torres) they could have been worse. While Caniglia and Fulton were unanimous they were probably two of the narrowest decisions of the term. Local governments could not have expected to have won either of those cases.