Month: May 2022

Six years ago, Dallas police officers who ostensibly were trying to help Tony Timpa, a 32-year-old man in the midst of a psychological crisis, ended up killing him instead. Four years later, a federal judge ruled that the cops were protected by qualified immunity, which shields public officials from civil liability unless their alleged misconduct violated “clearly established” law. But last December, the U.S. Court of Appeals for the 5th Circuit overturned that decision, allowing Timpa’s relatives to proceed with their civil rights lawsuit. Today the Supreme Court declined to hear an appeal of the 5th Circuit’s decision, which means the plaintiffs will finally get a chance to make their case.

On a Monday night in August 2016, Timpa called 911 to report that he was “having a lot of anxiety” about a man he feared would harm him. Timpa mentioned that he had received several psychiatric diagnoses—schizophrenia, depression, bipolar disorder, and anxiety disorder—but had not taken his medication that day. After police arrived in response to that call and other reports of a man behaving erratically near 1728 West Mockingbird Lane, Timpa yelled, “You’re gonna kill me!” He was right.

Timpa, who had already been handcuffed by a security guard, died while being pinned to the ground face down by several police officers for about 15 minutes, during which time he pleaded with them to stop and cried for help over and over again. The officers, while intermittently showing signs of compassion, joked about Timpa’s predicament and the possibility that they had killed him.

Confronted by these facts, U.S. District Judge David Godbey did not definitively determine whether the officers’ conduct was consistent with the Fourth Amendment’s ban on “unreasonable searches and seizures.” Even if it wasn’t, he said in his 2020 opinion, the law on that point was not clear enough at the time to allow claims under 42 USC 1983, which authorizes lawsuits against state or local officials who violate people’s constitutional rights.

The circumstances of Timpa’s death were similar to the prolonged prone restraint that killed George Floyd in Minneapolis four years later. That case led to a $27 million civil settlement and criminal convictions for Officer Derek Chauvin, who kneeled on Floyd’s neck for nine and a half minutes, and three of his colleagues, who were accused of failing to intervene or provide appropriate medical aid.

In Timpa’s case, by contrast, no charges were filed, and it initially seemed his family’s lawsuit was doomed by qualified immunity, a doctrine that the Supreme Court grafted onto a statute that makes no mention of such an excuse. Godbey’s application of the doctrine vividly illustrated how difficult it can be for plaintiffs to overcome it.

Timpa’s family argued that the Dallas officers’ use of force was clearly unconstitutional under Gutierrez v. City of San Antonio, a 1998 case involving a man who died while restrained face down in the back of a patrol car. In that case, the 5th Circuit allowed an excessive force claim to proceed. In both cases, the lawsuit filed by Timpa’s relatives noted, police knew the detainee was under the influence of cocaine. The 5th Circuit in Gutierrez held that the use of force can be excessive “when a drug-affected person in a state of excited delirium is hog-tied and placed face down in a prone position.”

Godbey noted that Timpa, although restrained on his stomach while his hands and feet were shackled, was not hog-tied, which in his view was enough to make Gutierrez inapplicable. He cited three subsequent cases in which the 5th Circuit had blocked excessive force claims against officers who allegedly used deadly prone restraints against resisting detainees.

Godbey likewise was unimpressed by decisions in which five other federal appeals courts had ruled that prone restraints causing death or severe injury did or could qualify as excessive force. Those rulings, he said, did not amount to “a ‘robust consensus’ of persuasive authority,” because the U.S. Court of Appeals for the 8th Circuit reached a different conclusion in a 2020 case involving a man arrested for trespassing who died after St. Louis police officers pinned him face down on the floor of his jail cell. The 8th Circuit ruled that “the Officers’ actions did not amount to constitutionally excessive force,” because they “held [the arrestee] in the prone position only until he stopped actively fighting against his restraints and the Officers.”

Was Tony Timpa “actively fighting” the officers who killed him? Citing the “custodial death report” filed after the incident, his family noted that he “never threatened” the officers, “never resisted being handcuffed,” “never attempted to hit or fight with” them, “never used a weapon to threaten or assault” them, and “never attempted to flee.”

In Godbey’s view, those facts were not enough to establish that the officers used force against a “non-resisting” detainee, as Timpa’s family argued. “Although Timpa was not struggling for the entire duration of Defendants’ restraint of him,” he wrote, “the body cam video and audio shows that he continuously moved and yelled in contravention of the officers’ directives, kicked at [two officers], and was struggling enough that [a paramedic’s] first attempt to take his vitals was unsuccessful.”

According to his family, Timpa was “suffering drug-induced psychosis.” The officers clearly recognized that Timpa was intoxicated, since they repeatedly asked him what drug he was on, and he told them he had taken cocaine. Yet they proceeded to restrain him for 15 minutes in a position that made it difficult for him to breathe.

An expert hired by Timpa’s family concluded that he “died due to mechanical asphyxia.” The Dallas County medical examiner concluded that Timpa suffered “sudden cardiac death due to the toxic effects of cocaine and physiological stress associated with physical restraint.” She added that because of “his prone position and physical restraint by an officer, an element of mechanical or positional asphyxia cannot be ruled out.”

Given the circumstances, Timpa’s “resistance,” which the officers repeatedly described as “squirming,” was perfectly understandable. Godbey’s framing suggested that someone who “move[s] and yell[s]” because he is being smothered to death thereby justifies the use of force that caused him to fear for his life.

The 5th Circuit saw the situation differently. It revived the claims against Officer Dustin Dillard, who pinned Timpa to the ground by kneeling on his back, and three other officers who allegedly failed to stop Dillard’s excessive use of force.

“Within the Fifth Circuit, the law has long been clearly established that an officer’s continued use of force on a restrained and subdued subject is objectively unreasonable,” Judge Edith Brown Clement wrote for a unanimous three-judge panel. “A jury could find that an objectively reasonable officer with Dillard’s training would have concluded that Timpa was struggling to breathe, not resisting arrest….A jury could find that Timpa was subdued by nine minutes into the restraint and that the continued use of force was objectively unreasonable in violation of Timpa’s Fourth Amendment rights.”

Clement said “the record supports an inference that Dillard knelt on Timpa’s back with enough force to cause asphyxiation.” She noted that Dallas officers are specifically trained for situations like this. They are taught to move a subject into a “recovery position” (on his side or sitting upright) as soon as possible “because the prolonged use of a prone restraint may result in a ‘combination of increased oxygen demand with a failure to maintain an open airway and/or inhibition of the chest wall and diaphragm [that] has been cited in positional asphyxia deaths.'” They are also taught that when a subject is suddenly unresponsive, he should receive immediate medical attention.

In this case, the body camera video shows the officers recognized that Timpa was unconscious several minutes before they finally lifted his lifeless body onto a gurney. “If I was squirming like that, I’d be sleeping too,” one remarked. “Hey, time for school! Wake up!” another said. The two cops elaborated on the gag, laughing while portraying Timpa as a child who does not want to go to school and describing the breakfast of “scrambled eggs” and “tutti-frutti waffles” waiting for him.

Now that the Supreme Court has declined to intervene, Timpa’s relatives will have a chance to present a jury with these facts. But the fact that they were initially denied that opportunity speaks volumes about the formidable barrier erected by qualified immunity.

“This is exactly why qualified immunity must be abolished or at least modified,” Geoff Henley, the attorney representing Timpa’s family, said after Godbey’s decision. “It allows officers to continue to use force that we all see and know to be excessive simply because there is no previous ruling prohibiting precisely the same kind of force. It’s squeezing a football through the eye of a needle.”

The post SCOTUS Lets Tony Timpa's Family Pursue Claims Against Cops Who Killed Him While Supposedly Trying To Help Him appeared first on Reason.com.

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From Parrot Pointe Marine, Inc. v. Sandow, decided two weeks ago by the Illinois Appellate Court, in an opinion by Justice Thomas Welch joined by Justices Judy Lynn Cates and Milton Wharton; the dispute stemmed out of a marina’s eviction of a boat owner, but the trial court also included this in its order:

The Parties shall not engage in any pattern of conduct that involves the making or publishing of written or oral statements or remarks which are disparaging, deleterious or damaging to the integrity, reputation or good will of the other Party.

Unconstitutional, said the appellate court:

[T]he plaintiff indicates that the trial court’s prohibition on either party making or publishing any damaging statement against the other was the result of the defendant engaging in a campaign to spread false information about the plaintiff in an effort to deter business…. Although any negative comments against the plaintiff and the plaintiff’s business practices might be offensive and could result in loss of business, the interest of an individual being free from public criticism of his business practices does not warrant the use of the court’s injunctive power. Thus, we find that the court’s prior restraint imposed on the defendant’s speech was not the least restrictive means of attaining its goal as the court’s injunctive power should not be used to silence criticism of others’ business practices.

The court also said that even injunctions against libelous statements are “usually” unconstitutional; but my research suggests that, at least in Illinois, “usually” doesn’t mean “always”: See, e.g., Allcare, Inc. v. Bork, 531 N.E.2d 1033, 1038 (Ill. App. Ct. 1988) (stating that an injunction can be issued to bar “commercial disparagement” following “a long standing and persistent pattern by defendants of defaming plaintiff or of disparaging its products or services”); see also Reschke v. Lee, No. 2016-L-008399, at 1 (Ill. Cir. Ct. Cook Cty. Aug. 30, 2016) (issuing anti-libel injunction); Kaupert v. Kim, No. 12 CH 28082, at 2 (Ill. Cir. Ct. Cook Cty. Dec. 13, 2012) (same); Houlihan Smith & Co. v. Forte, No. 10 CH 16477 (Ill. Cir. Ct. Cook Cty. Apr. 16, 2010) (same). (See my Anti-Libel Injunctions article for more.)

The post Illinois Appellate Court Strikes Down Anti-Disparagement Injunction appeared first on Reason.com.

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Last week, Marin County, California, passed an emergency 45-day moratorium on new short-term rentals in the western parts of the county to address its pressing housing supply and affordability crises. Officials have expressed the hope that pumping the brakes on new Airbnb listings will preserve some of the area’s limited housing stock for native renters and homebuyers.

“Visitors from around the world enjoy our county’s natural beauty and contribute to our economy,” said Sarah Jones of the Marin County Community Development Agency earlier this month. “But it’s a growing problem that the people who work in West Marin be able to live in West Marin.”

A county report on the moratorium notes that 551 of the 5,250 homes in western Marin County are being used as short-term rentals. The report says this is contributing to a housing shortage and an attendant affordability crisis that’s driven average rents to nearly $3,000 and median home prices to $1.8 million.

The moratorium is intended to buy the county time while it crafts new restrictions on Airbnbs. Limiting the supply of vacation rentals is one way to address a shortage of homes. An alternative would be to just build new homes to meet demand.

But that’s easier said than done in Marin County, where regulatory red tape and legal challenges have kept one proposed 43-unit subdivision in planning hell for nearly 50 years. The long saga behind that project suggests that a world where there’s enough housing for both vacationers and longtime residents in Marin County is possible—if only it didn’t take half a century to approve a new subdivision.

The tangled legal history of the much-delayed project stretches back to the 1970s, when Marin County reduced the number of homes that could be built on a 110-acre site owned by developer The Martha Company from 300 to just 34.

That sparked a federal lawsuit from The Martha Company claiming the downzoning was a regulatory taking. In 1976, it reached a settlement with the county that entitled it to build 43 single-family homes on half the site. The other half would be reserved for publicly accessible open space.

Years of planning and abortive attempts to develop the property followed. By 2005, The Martha Company and the county were back in court, after the latter sued to overturn the 1976 settlement agreement. That effort failed. Another settlement was reached in 2007 once again affirming The Martha Company’s right to build 43 homes on its property.

But victory in federal court only freed up The Martha Company to enter the gauntlet of state-mandated environmental review.

The 1970 California Environmental Quality Act (CEQA) requires that governments prepare environmental impact reports for projects they have discretion over. That law guarantees citizens the ability to participate and make comments via public hearings on those projects. It also allows them to sue a local government if it approves an environmental impact report they think wasn’t thorough enough.

The law has become a favored tool of NIMBY (Not in my backyard) activists to delay or stop projects they dislike—whether that’s a new apartment building, a new hospital, or new college students—which is exactly what happened in The Martha Company development.

After filing a new development application in 2008, the company spent years going back and forth with Marin County officials and anti-development activists on the design of their project and changes that might mitigate environmental impacts it would have on landslides, fires, aesthetics, and more.

The Board of Supervisors rejected one environmental impact report prepared for the project in 2013. That sent The Martha Company back to the drawing board. In October 2017, on a narrow 3–2 vote, the board approved another, much-revised environmental impact report for a 43-home project on the site.

Several supervisors said at the time that while they didn’t want to see the site developed, they nevertheless felt their hands were tied by the multiple court agreements affirming the company’s right to build out the site.

But the board’s approval only precipitated another lawsuit from a nearby property owner, the unincorporated activist group Tiburon Open Space Committee, and the adjacent town of Tiburon—all arguing that the 850-page environmental impact report a decade in the making failed to comply with CEQA.

A major claim in their lawsuit was that the county had illegally contracted away its powers over new development by agreeing to the 1976 and 2007 settlements allowing The Martha Company to build 43 homes. As a result, it failed in its duty under CEQA to approve a less environmentally impactful 32-unit project on the site, they argued.

A Marin County Superior Court judge rejected those arguments in January 2020. In mid-May 2022, the First District of the California Court of Appeal likewise rejected their petition and upheld the approval of the project’s environmental impact report.

The appeals court found that the 1976 and 2007 settlements were valid. Therefore, the county was under no obligation to approve, or even analyze, a project with fewer units.

The court’s decision was unsparing in its criticism of anti-development activists’ abuse of environmental review to delay the project for so long, writing that “CEQA was meant to serve noble purposes, but it can be manipulated to be a formidable tool of obstruction, particularly against proposed projects that will increase housing density.”

“Something is very wrong with this picture,” the justices concluded.

That decision is good news for The Martha Company, which can finally move ahead with its project. It might also be good news for housing supply across all of California by putting some outer bounds on what CEQA requires.

Despite California’s well-deserved reputation for overregulating new housing development, the state does have several pro-supply laws on the books that limit the discretion of local governments to reject zoning-compliant projects or condition projects’ approval on density reductions.

Forceful as those laws might be on paper, they don’t relieve local governments’ obligation to comply with CEQA. It’s left open the question of whether those pro-supply laws are subordinate to CEQA.

That ambiguity, in practice, has allowed localities to “launder” denials of projects state law requires them to approve through endless rounds of environmental review.

In a recent blog post, Holland & Knight attorneys Bradley Brownlow and Jessica Laughlin write that the appeals court decision in the Martha Company case makes clear that legal arrangements guaranteeing developers the right to build a certain number of units aren’t superseded by CEQA, and that reasoning applies to state laws that limit local governments’ ability to deny or shrink projects.

“The Court’s holding is likely to be consequential with respect to the implementation of state laws that impose limitations on agency discretion over housing development projects,” write Brownlow and Laughlin. “Environmental review must be tailored to account for the legal infeasibility of project alternatives and mitigation measures that conflict with the agency’s legal obligation to approve projects at their proposed densities.”

In other words, local governments don’t have to waste their time studying the environmental impact of smaller projects or other mitigation measures they couldn’t force developers to build anyway.

Brownlow and Laughlin say that the appeals court decision could “cast a long shadow” preventing CEQA abuse.

That would be a welcome development. The more time that housing projects spend on the drawing board waiting for approval, the more time people spend bidding up the prices of housing that’s already been built. One seminal 2002 paper from researchers Edward Glaeser and Joseph Gyourko found that even delays of a few months can significantly increase the price of homes in subdivisions of 50 units or less.

In recent years, the California Legislature has carved out exempted things like transit projects, college admissions, and local upzoning measures from CEQA. Wholesale reform of the law is still a political third rail.

Judicial opinions that clarify and limit CEQA’s scope are probably the best critics of the law can hope for. At a minimum, the appeals court decision in the Martha Company case will probably do more good than a temporary ban on new Airbnbs.

The post County Where It Took 50 Years To Approve New Subdivision Bans New Airbnbs appeared first on Reason.com.

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