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_111918.pdf.

ContractsWhataburger of Alice v. Whataburger, Inc, No. 17-0732 in the Texas Supreme Court. This case involves a dispute over two agreements between Whataburger of Alice (a local Whataburger franchise) and Whataburger, Inc. The parties entered into a 1993 settlement agreement pursuant to an older dispute relating to franchise locations. Later, the parties entered into franchise agreements for specific restaurants. The franchise agreements provided that they superseded all prior agreements. The Fourth Court of Appeals held that the “superseded” language extinguished the prior settlement agreement. TML, as amici, argued that the court’s opinion could affect municipal contracts that begin with a master agreement and continue with additional sub-agreements. For example, development agreements and construction contracts are commonly executed in that way. TML argued that the holding in the case could mean that a sub-agreement extinguishes the master agreement unless certain language is included in the sub-agreement, creating uncertainty in municipal contracting. The brief in support of the motion for rehearing at the Texas Supreme Court was filed on October 25, 2018.

Excessive ForceCole v. Carson, No. 14-10228, in the U.S. Fifth Circuit Court of Appeals. TML joined TCAA, IMLA, TAC, CLEAT, the Mississippi Municipal Services Company, the National Association of Police Organizations, and the Cities of Arlington, Garland, and Grand Prairie in this amicus brief in support of a motion for rehearing en banc.  The facts of the case are that a police officer shot a 17-year-old man while the man held his own gun to his head. Because the fatal gunshot was self-inflicted to the head, a question arose as to whether the officer’s shooting was justified. The brief outlines how excessive force claims have been analyzed by the Fifth Circuit and argues that, in this case, the court disregarded its own established standards and judged the officers in a manner contrary to current law. Specifically, the issue in question is the second component of qualified immunity analysis, which requires a showing that an officer violated “clearly established” law to be held liable under Section 1983. At step two, in all except an “obvious” case, a plaintiff is required to identify controlling authority where an officer was held to have violated federal law in a similar factual circumstance. The panel here, Amici argue, misclassified this case as an “obvious” one. By doing so, it expanded liability against police officers in Louisiana, Mississippi, and Texas in a manner that conflicts with U.S. Supreme Court precedent as well as the law of other circuit courts. The brief was filed on October 16, 2018.

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