` AZ League Connection, March 2021 Issue 303
AZ League Connection

The League's Monthly Online Newsletter

Issue 303: March 2021

Legal Corner: Recent Supreme Court Cases

Below are recent cases that may be of interest to cities and towns.

U.S. Supreme Court:

  • Fourth Amendment seizures: Torres v. Madrid, 592 U.S. ___, 769 Fed. Appx. 654 (Mar. 25, 2021). The U.S. Supreme Court has long held that hooting a fleeing suspect is a “seizure” of the person under the Fourth Amendment. The lower court in this case held that the police officers did not actually “seize” the defendant because she still fled the scene. In a 5-3 decision, the U.S. Supreme Court vacated and remanded, holding that an unsuccessful attempt to detain a suspect by use of physical force is a "seizure" within the meaning of the Fourth Amendment if the challenged conduct objectively manifests an intent to restrain. The focus of the Fourth Amendment is “the privacy and security of individuals,” not the particular form of governmental intrusion. The required corporal seizing or touching can be readily accomplished by a bullet as by a finger. In this case, the officers shot the individual with the intent to restrain her movement. The Court did not address the reasonableness of the seizure, damages, or the officers;’ entitlement to qualified immunity.
  • First Amendment standing: Uzuegbunam v. Preczewski, 141 S. Ct. 792 (2021). The U.S. Supreme Court held that a claim for nominal damages (by itself) can establish legal standing and can keep an otherwise moot case alive (even if the plaintiff could not or chose not to quantify that harm in economic terms).
  • Bankruptcy Code and impoundments: City of Chicago, Illinois v. Fulton, 141 S. Ct. 585, 208 L. Ed. 2d 384 (2021). The City of Chicago did not violate the automatic stay provision in the Bankruptcy Code by holding onto a vehicle impounded after a bankruptcy petition was filed.

Pending before the U.S. Supreme Court:

  • Fourth Amendment warrant exceptions: Canigla v. Strom, No. 20-157 (pending). On March 24, 2021, the U.S. Supreme Court heard oral arguments and was asked to decide whether police officers may rely on the “community caretaking” exception to the warrant requirement when conducting a warrantless search of and seizure of a weapon within a home.
  • Fifth Amendment takings and temporary access easements: Cedar Point Nursery v. Hassid (pending). On March 22, 2021, the U.S. Supreme Court heard oral arguments in a challenge to a California statute that requires agricultural businesses to allow labor organizers onto their properties three times a day for 120 days each year with prior notice. The Ninth Circuit ruled against the agricultural businesses, concluding that an easement that is limited in time is not a per se taking there is no permanent physical invasion. The issue before the U.S. Supreme Court is whether a temporary access easement is a per se physical taking of property under the Fifth Amendment and therefore automatically subject to an injunction or mandatory compensation (under Loretto v. Teleprompter Manhattan CATV Corp.) or, instead, whether the petitioners' claim should be evaluated under the various factors outlined in Penn Central Transportation Co. v. New York City.
  • Arizona elections law: Brnovich v. Democratic National Committee, No. 19-1257 (pending). On March 2, 2021, the U.S. Supreme Court heard oral arguments and was asked to resolve two issues: (1) whether Arizona’s policy of not counting provisional ballots cast in person on Election Day outside of the voter’s designated precinct violates Section 2 of the Voting Rights Act, and (2) whether Arizona’s law permitting only certain persons to handle another person’s completed early ballot violates Section 2 of the Voting Rights Act or the Fifteenth Amendment.

Ninth Circuit:

  • First Amendment and the “state actor” doctrine: Pasadena Republican Club v. Western Justice Center, No. 20-55093 (9th Cir. 2021): A city is not liable for the alleged conduct of its lessee when such conduct is not “inextricably intertwined with that of the government.” In this case, plaintiff failed to state a claim under 42 U.S.C. 1985(3) where the tenant and its agents were not state actors and where the plaintiff did not allege that the city or some other state actor participated in the alleged conspiracy to deprive the plaintiff of its constitutional rights. Furthermore, the government does not, without more, become vicariously liable for the discretionary decisions of its lessee. Here, the undisputed facts showed that the city did not delegate any final policy-making authority that caused the plaintiff’s alleged constitutional injury, and the city and its lessee lacked a significant degree of integration, dependency, and coordination.

Arizona Supreme Court:

  • Privacy violations. Shepherd v. Costco Wholesale Corp., No. CV-19-0144-PR, 2021 WL 941432 (Ariz. Mar. 8, 2021). The Arizona Supreme Court concluded that state law provides a remedy for HIPAA violations. Although HIPAA violations can lead to economic penalties imposed by the U.S. Department of Health and Human Services Office for Civil Rights, HIPAA does not include a mechanism for individuals to seek economic damages for HIPAA violations. While this case did not involve any government parties, it impacts any organization that handles protected health information (PHI) and is subject to the Health Insurance Portability and Accountability Act (HIPAA) (e.g., ambulance services, employer-sponsored health plans).
  • Worker’s Compensation. France v. Indus. Comm'n of Arizona, No. CV-20-0068-PR, 2021 WL 800755 (Ariz. Mar. 2, 2021). A deputy sheriff’s post-traumatic stress disorder (PTSD) resulting from a violent encounter while conducting a welfare check is a compensable workers’ compensation claim. Looking to the wording of the statute, Ariz. Rev. Stat. § 23-1043.01(B), which denies coverage for mental injuries, such as PTSD, unless some “unexpected, unusual or extraordinary stress related to the employment … was a substantial contributing cause of the mental injury, illness or condition,” the court said it was the stress, not the event, that mattered. Whether a claim is compensable turns on an objective reasonable-person standard that examines the stressfulness of an event from the perspective of someone with the same or similar job duties. Here, the deputy had been confronted by an assailant who pointed a shotgun at the deputy’s face and chest at close range. The assailant was shot and killed by other deputies. The mere fact the job duties involved the possibility of violence did not extinguish a claim.
  • Arizona elections law: McKenna v. Soto, No. CV-20-0123-AP/EL, 2021 WL 712966 (Ariz. Feb. 17, 2021). The plaintiff challenged nomination petitions filed by a candidate for nomination to the Arizona House of Representatives. The superior court concluded the candidate obtained enough valid signatures to qualify for placement on primary election ballot. The Arizona Court of Appeals affirmed, holding: (1) signatures that failed to include the year substantially complied with date requirement because they included the month and day; and (2) signatures that listed the signer's street address substantially complied with the address requirement because they provided the city, state, or zip code and the recorder was able to verify voter eligibility despite the missing information. The Court rejected the plaintiff’s argument the incomplete dates were invalid because they failed to comply with the Election Procedures Manual. It explained that the manual did not have the force of law because the relevant statute did not grant the Secretary of State rulemaking authority.

Pending before the Arizona Supreme Court:

  • Emergency powers of the Governor: Aguila v. Ducey (pending). The question before the Arizona Supreme Court is whether the Governor of Arizona has the power to amend or suspend laws during a state of emergency. The case centers around the Governor’s executive order allowing restaurants to remain open and serve alcohol but ordering bars to close. A group of Arizona bar owners argued the order constituted an unconstitutional delegation of authority, exceeded statutory rulemaking authority, arbitrarily discriminated against the plaintiffs, and deprived them of their properties in violation of the state and federal constitution. The lower court ruled against the bar owners, concluding there is "no inherent right in a citizen to ... sell intoxicating liquors by retail" and the restrictions were " rationally related to expert data and guidance on minimizing the spread of COVID-19." On Feb. 18, 2021, the Attorney General of Arizona filed an amicus brief, arguing the Governor lacks the power to amend or suspend any law, even during a state of emergency. On Feb. 26, 2021, the New Civil Liberties Alliance (a nonpartisan, nonprofit civil rights group) filed an amicus brief, arguing the Governor's "police power” does not include the power to legislate.

Arizona Court of Appeals:

  • Development agreements and zoning: Town of Florence v. Florence Copper Inc., No. 1 CA-CV 19-0504, 2021 WL 1099043 (Ariz. Ct. App. Mar. 23, 2021), as amended (Mar. 24, 2021). In 2002, the Town of Florence annexed a large parcel of property and entered a development agreement with its owner, granting the owner and its successors in interest a vested right to operate a copper mine on the property. The Town later rezoned the property to allow the owner to build more homes on the property. The Town then sued Florence Copper, Inc., the successor in interest, asking the superior court to declare mining a prohibited use. The lower court ruled against the Town. The Arizona Court of Appeals affirmed, concluding the Town could not “unilaterally” prevent mining on the subject property through zoning regulations. The development agreement vested the then-existing right to mine for 35 years. The owner’s conduct did not eliminate its vested right to mine the property as a nonconforming use. By its terms and under Arizona law, the development agreement could be amended only with both parties’ consent.
  • Notice of claim: Lewis v. State, No. 1 CA-CV 20-0285, 2021 WL 982701 (Ariz. Ct. App. Mar. 16, 2021), as amended (Mar. 16, 2021) (unpublished). The plaintiff appealed the dismissal of his claims against the State of Arizona, the Attorney General of Arizona, and the City of Phoenix for failure to comply with the notice of claim statute in A.R.S. § 12-821.01. The plaintiff mailed his notice of claim to the state defendants in November 2018 and the city defendants in January 2019, but all of the claims he asserted arose out of and occurred in connection with his 2015 criminal trial and conviction. Thus, irrespective of any other deficiencies in the notices of claim, the notices were inadequate as a matter of law because they were provided far outside the 180-day window mandated by A.R.S. § 12-821.01(A).
  • Fair Labor Standards Act: Roberts, et. Al. v. State, No. 1 CA-CV 20-0060 (March 3, 2021). Public law enforcement employees filed a complaint alleging their employer, the State of Arizona, violated A.R.S. 23-392 by failing to pay overtime compensation for time they were required to spend undergoing “extensive security screenings” for each shift. According to the Arizona Court of Appeals, the Fair Labor Standards Act, 29 U.S.C. § 207, does not preempt the claim for overtime compensation pursuant to A.R.S. 23-392. The time spent by public law enforcement employees undergoing mandatory security screenings is integral and indispensable to the employee's’ principal, compensable activities. As a result, the security screenings are compensable and subject to overtime compensation under A.R.S. § 23-392.


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