IMLA will be unveiling a new and improved blog site in the coming weeks. Stay Tuned!

In the coming months, IMLA will be releasing a Model Green Building Ordinance. In anticipation of that, look out for a few postings here and there of interesting articles. Here’s one from CNN.com on some green building strategies employed by cities.

Click Here for the article.

Here’s an interesting case out of the 9th Circuit…

Quon v. Arch Wireless, No, 07-55282 (9th Cir. June 18, 2008).

Quon was a sergeant with the City of Ontario (California) SWAT team. Arch Wireless was the company with whom the City contracted for text messaging services and pagers. The City distributed two-way pagers to employees, including Quon, but had no official policy on text-messaging using the pagers. However, its general policy on computer use, Internet and email, which applied to all employees, made clear that (1) the use of City-owned computers and all associated equipment, Internet, email and other systems operating on the computers was limited to City business, and the use of these tools for personal benefit was prohibited; (2) access to all sites on the Internet was recorded and would be periodically reviewed by the City. The City reserved the right to monitor and log all network activity, with or without notice. Users were told to have no expectation of privacy. (3) Access to the Internet and the email system was not confidential. Further, before the City acquired the pagers, Quon had signed an “Employee Acknowledgment,” which borrowed language from the general policy. Two years later, Quon attended a meeting at which employees were reminded that the pager messages “were considered email, and that those messages would fall under the City’s policy as public information and [were] eligible for auditing.”

The City’s informal policy was also that employee would pay for any texting over 25,000 characters a month (“overage”). Quon was later specifically told by Lieutenant Duke, the person in charge of the pagers, that “it was not his intent to audit” employee text messages to see if the overage was due to work-related transmissions; he needed to cut down on his transmissions and reimburse the City for the overage. Quon then paid for the overages. When Duke later again advised officers he was “tired of being the bill collector,” the police chief, being concerned about the use of police time and resources, ordered a review of some of the pagers’ text transcripts to see whether the use was work-related. The messages were housed/archived on the Arch Wireless computer server; the transmitting equipment was also owned by the company. The City asked for and obtained the transcripts as the “subscriber.” The investigation showed Quon “had exceeded his monthly allotted characters by 15,158 characters,” that many of the messages were personal in nature, and some were very personal (sexually explicit). Quon and some of his text correspondents sued, alleging violations of the Stored Communications Act (SCA),18 U.S.C. §§ 2701-2711.2, their privacy rights under the California Constitution, and the Fourth Amendment. (In brief, the SCA prevents “providers” of communication services from divulging private communications to certain entities and/or individuals.)

The district court granted partial summary judgment in favor of the City and found that Arch Wireless did not violate the SCA. To prove a Fourth Amendment violation, the plaintiffs were required to show that they had a reasonable expectation of privacy in the text messages, and that the City’s search or seizure was unreasonable in the circumstances. The district court held that, in light of Lieutenant Duke’s informal policy that he would not “audit” a pager if the user paid the overage charges, the plaintiffs had a reasonable expectation of privacy in their text messages as a matter of law. Regarding the reasonableness of the search, the district court held a jury trial on the single issue of the police chief’s intent. The jury found that his intent was to determine the efficacy of the character limit. Therefore, all defendants were absolved of liability.

On appeal, the Ninth Circuit affirmed in part, reversed in part and remanded. Summary judgment in favor of Arch Wireless under the SCA was in error as it was an ECS or “electronic communication service” (i.e., “any service which provides to users thereof the ability to send or receive wire or electronic communications”). The Act prohibited an ECS from “knowingly divulg[ing] to any person or entity the contents of a communication while in electronic storage by that service,” unless (among other exceptions) that person or entity was “an addressee or intended recipient.” On the Fourth Amendment question, the court found that users of text messaging services, like those provided by Arch Wireless, had a reasonable expectation of privacy in their text messages stored on the service provider’s network. There was no difference between such messages and emails or letters: while it was not reasonable to expect privacy in the
information used to “address” such communications, users – including the senders of messages to Quon – had a reasonable expectation of privacy in the contents. The Department’s informal policy that the text messages would not be audited if the overages were paid rendered Quon’s expectation of privacy in those messages reasonable. (Particularly, the court said, because Quon had accumulated overages before without audits of his messages ensuing.) The argument that Duke was not a policy-maker and his statements “were specific to his own bill collecting practices” only, was rejected. Duke was “in charge of the pagers” and Quon was entitled to rely on his informal statements. The court held the search was unreasonable because, although its object was legitimate (to ensure officers did not pay for work-related expenses), its scope was excessively intrusive in light of the non-investigatory object of the search. (For example, as an
alternative, the court suggested the City could have asked Quon to “redact personal messages and grant permission to the Department to review the redacted transcript.”) The chief was entitled to qualified immunity because, at the time of the search, there was no clearly established law regarding whether users of text-messages had an expectation of privacy. The City and the Department were not protected by statutory immunity on the state law claims as the conduct fell outside the scope of the California Government Code section 821.6.

In late 2006, New York City enacted a ban on artificial trans fats. The ban started with a phase-in period in July 2007, where the use of artificial trans fats were banned, except in cases of deep fried cake better (donuts, cakes, etc) and yeast dough (pizza anyone?).

However, starting tomorrow, July 1, 2008, the complete ban goes into effect where no food establishment is allowed serving, using, or even storing any artificial trans fats. This doesn’t apply to prepackaged foods, such as a standard bag of potato chips, but it applies to everything else.

What are your thoughts on the ban? Should local governments be in the business of regulating what we eat? What about bans on foie gras? What about mandatory caloric information on restaurant menus?

Supreme Court Rules in District of Columbia v. Heller

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

The U.S. Supreme Court released its long-awaited ruling in District of Columbia v. Heller, No. 07-290, today, the last day of the Term. The case required the Court to rule on the scope of the right protected by the Second Amendment – basically, whether the Amendment protects an individual (”citizen-based”) or a collective (”Militia-based”) right to own and use firearms.

The Court AFFIRMED the ruling of the D.C. Circuit Court of Appeals in a 5-4 decision, upholding an individual right. As was rumored, Justice Scalia wrote the opinion, in which Chief Justice Roberts, and Justices Kennedy, Thomas, and Alito joined. Justice Stevens filed a dissenting opinion, in which Justices Souter, Ginsburg, and Breyer, joined. Justice Breyer also filed a dissenting opinion, in which Justices Stevens, Souter, and Ginsburg, joined..

In 1976, the District of Columbia enacted laws that banned the registration of handguns (with an exception for retired D.C. police officers); prohibited carrying a pistol without a license, even within a home; and required that all lawfully-owned firearms be kept unloaded and disassembled, or bound by a trigger-lock or similar device, unless used for recreational activities. The D.C. Council targeted handguns because they were “disproportionately linked to violent and deadly crime (in 1974, handguns were used to commit 155 of 285 murders in the District) and because it felt that less restrictive approaches would not be adequate.

Six District residents, including Heller, filed a Section 1983 lawsuit alleging that the District’s gun laws violated their Second Amendment rights. Heller had applied for, and was denied, a registration certificate to own a handgun at his home, with the District specifically referring to the handgun ban provision in its denial. Like Heller, the rest of the plaintiffs did not assert a right to carry such weapons outside their homes – they wanted the guns for use, if necessary in their homes for self-defense. The district court dismissed their suit, finding that the Second Amendment did not bestow any rights on individuals except, perhaps, those serving in an organized militia. On appeal, a divided U.S. Court of Appeals for the D.C. Circuit held, first, that Heller was the only plaintiff to have standing (the other plaintiffs had suffered no injury in fact). Second, it reversed and remanded the ruling of the court below, finding that court erred in finding that the Second Amendment protected only a civic or collective right. “[T]he phrase ‘the right of the people,’ when read intratextually and in light of Supreme Court precedent, leads us to conclude that the right in question is individual.” Moreover, it was a right “not created by government, but rather preserved by it” – “We . . . take it as an expression of the drafters’ view that the people possessed a natural right to keep and bear arms.”

The District of Columbia and Mayor Adrian M. Fenty petitioned for review; the residents cross-petitioned on the standing issue. The Supreme Court granted certiorari but limited the question to whether the D.C. laws (D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02) “violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes.”

The majority of the Court held the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. While the Amendment’s prefatory clause announced a purpose, that did not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrated that it connoted an individual right to keep and bear arms.

Turning specifically to the DC laws, the majority held the handgun ban and the trigger-lock requirement (as applied to self-defense) violated the Second Amendment. The District’s total ban on handgun possession in the home amounted to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court had applied to enumerated constitutional rights, the ban – in the place where the importance of the lawful defense of self, family, and property was “most acute” – would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock made it impossible for citizens to use arms for the core lawful purpose of self-defense and was hence unconstitutional.

Third, the Court pointed out that the Second Amendment right was not unlimited; it was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions had been upheld under the Amendment or state analogues, and today’s ruling should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

A more in-depth analysis will be available shortly.

The 157-page ruling is available at http://www.scotusblog.com/wp/wp-content/uploads/2008/06/07-290.pdf

The Securities and Exchange Commission filed on April 7 securities fraud charges against five former San Diego city officials who played key roles in the city’s inadequate municipal securities disclosures in 2002 and 2003. This is an interesting update, for the full story Click Here

The Supreme Court of Texas recently reversed lower court rulings relating to biting dogs and owner liability. The court of appeals had ruled that when a dog attack occurred on an owner’s property, a plaintiff was required to show that the owner had knowledge of the dog’s dangerous propensities in order to be liable for negligent handling. In Bushness v. Mott, No. 06-1044 (Tex. March 28, 2008), however, the state’s Supreme Court reversed and remanded. The case involved a door-to-door saleswoman who was attacked by Mott’s three dogs while delivering an order to Mott. The dogs ran out of the house, and Mott allegedly stood by, making no attempt to stop the attack, nor did she assist the victim after the attack. The court held that dog owners had a duty to attempt to stop their dog from attacking a person after the attack had begun. Even if Mott “did not know her dogs had dangerous propensities, [the plaintiff’s] original affidavit indicating that Mott did nothing to prevent her dogs from continuing to attack [her] raise[d] a material fact issue concerning whether Mott failed to exercise ordinary care over her dogs once the attack began.” The opinion is available online Here

Sorry for the delay in postings. With the upcoming IMLA Seminar, Canadian Seminar, the announcement of the New England Regional Seminar, Music Licensing update, Model Ordinance Service, etc., you can see we are very busy!

On March 5, members of the US Congress released 15 bills relating to immigration. Most of these will probably be held up in committee, but it’s worth mentioning because some of these bills deal with local authority. Here’s a sampling of the bills that were introduced:

–> Sen. Inhofe introduced the National Language Act of 2008 making English the national language and also clarifying that there is no entitlement to receive federal documents and services in languages other than English.

–> Sen. Sessions introduced legislation to establish mandatory minimum prison sentences for individuals convicted of entering the USA illegally.

–> Sen. Specter introduced a bill that requires Dept. of Homeland Security to report to Congress every 90 days on the countried which refuse or inhibit repatriation. Receipt of the report automatically triggers denial of certain foreign aid as well as suspension of visa issuances to the listed countries.

–> Sen. Chambliss introduced a bill that, if passed, would affect localities greatly. It attempts to clarify the authority that local governments have when dealing with federal immigration cases. This is a huge issue for localities, and I believe that IMLA’s Annual Conference this year in Las Vegas has a work session on this very issue.

In any case, immigration is obviously at the center of many debates, and it’s just interesting to get a glimpse of what Congress is and isn’t doing to address the issue.

A recent news item discusses the concept of “ethical wills” — documents that bequeath cherished thoughts, precepts, and ideas of the testator, rather than material goods. (See http://seattletimes.nwsource.com/html/localnews/2004285696_ethicalwills16m.html). Although ethical wills are not legally binding, they aims to share and pass down values and “life lessons” that may be just as important as other assets. The trend is part of what’s been called the “Conscious Aging Movement.” Sample directives include: “Reach out to strangers … express your gratitude … Find something to enjoy and rejoice in every day. … ”

What would you include in your ethical will, and why?

Today the Court hears arguments in the much publicized case of District of Columbia v. Heller, No. 07-290, involving the District of Columbia’s ban on firearms and the scope of the Second Amendment. In brief, the issue is whether the Second Amendment protects a collective, or an individual, right to bear arms. The case arises after six residents challenged restrictions enacted by the District of Columbia, including a ban on the registration of handguns (with an exception for retired D.C. police officers); a prohibition on carrying a pistol without a license, even within a home; and a requirement that all lawfully-owned firearms be kept unloaded and disassembled, or bound by a trigger-lock or similar device, unless used for recreational activities. A year ago, the U.S. Court of Appeals for the District of Columbia held: (1) Heller, who had applied to register a handgun, was the only one of the six plaintiffs with standing to challenge the restrictions, (2) the restrictions violated the Second Amendment, and (3) the District could impose reasonable restrictions – a registration requirement, for example – on the use and ownership of firearms, consistent with public safety and other government interests. (The dissent held that the District was not a State within the meaning of the Second Amendment; thus, the Second Amendment did not apply.) The District sought review of this decision and the five plaintiffs cross-appealed the ruling on standing. The Supreme Court limited review to whether the D.C. laws “violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes.” Well over 50 amicus briefs have been filed, including several by municipalities, and this remains the most-watched case of this Term.