Rocky Mountain Appellate Blog

Tenth Circuit Upholds the Stolen Valor Act

In United States v. Strandlof (No 10-1358), the Tenth Circuit held that the Stolen Valor Act, criminalizing certain false claims regarding military awards and honors, did not violate the First Amendment. In so doing it broke from the Ninth Circuit, the only other circuit to have considered the issue, which held the Act to be unconstitutional. Judge Tymkovich wrote the majority opinion, joined by Judge Baldock. Judge Holmes dissented.

“[T]his would have required either a gigantic coach, a very tiny constable, or both”

As you likely know by now, the Supreme Court held in United States v. Jones that a warrant is required to attach a GPS device to a car. While all Justices concurred in the result, there were three opinions issued. The court did not line up along political lines, but rather split (to a certain degree) along interpretive lines. The opinion of the court, which takes a somewhat originalist approach, was written by Scalia, joined by Roberts, Kennedy, Thomas, and Sotomayor. Sotomayor also wrote a concurring opinion, in which she noted that the more difficult questions suggested in the case did not need to be resolved to decide the case in front of the court. More broadly, Justice Alito concurred in the judgment, joined by Ginsburg, Breyer, and Kagan. Justice Alito analyzed the issue “by asking whether respondent’s reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove.” This split, as well as the majority’s grounding of its decision on physical intrusion (which is likely to be less necessary with modern technology), means that this is almost certainly the first of a long line of Supreme Court cases wrestling with GPS surveillance.

Scalia’s opinion was base in large part on the fact that the GPS device had been physically attached to the car, thus invading the property rights of the defendant. He believed that this trespass violated a minimum guarantee of the Fourth Amendment sufficient to resolve the case. Interestingly, however, he was clear that the opinion did not purport to “make tres¬pass the exclusive test.” Judge Alito thought that attempting to ground a privacy analysis in 18th Century law was unwise; he rejected Scalia’s analysis of the 18th Century understanding of the Fourth Amendment as it related to trespass as a floor, and argued that any analysis should be based on reasonable expectations: “This case requires us to apply the Fourth Amendment’s prohibition of unreasonable searches and seizures to a 21st-century surveillance technique . . . . By attaching a small GPS device to the under¬side of the vehicle that respondent drove, the law enforce¬ment officers in this case engaged in conduct that might have provided grounds in 1791 for a suit for trespass to chattels. And for this reason, the Court concludes, the installation and use of the GPS device constituted a search. This holding, in my judgment, is unwise. It strains the language of the Fourth Amendment; it has little if any support in current Fourth Amendment case law; and it is highly artificial.”

Finally, Alito appears to have taken a commanding lead in any contest for the funniest line in a Supreme Court opinion with his footnote addressing a 18th Century equivalent of a GPS tracker, quoted in part in the title to this post.

SCOTUS Rules that Use of GPS Trackers Require Warrant

The U.S. Supreme Court today issued a unanimous decision holding that a search warrant is required before police can use GPS to track criminal suspects. The Denver Post has the story here and the decision can be found here.

First Amendment Retaliation in the Context of an Employment Dispute

In Morris v. City of Colorado Springs (No. 10-1572), the Tenth Circuit, among other things, affirmed the dismissal of the plaintiff’s First Amendment retaliation claim on the pleadings. The plaintiff was a nurse who worked for Colorado Spring’s Memorial Health System, which is run by the city. The plaintiff submitted a “Notice of Claim” to Memorial, alleging that she has been subject to various torts while a member of the heart surgery team. Shortly thereafter, she was reassigned away from the heart team. The plaintiff alleged that this reassignment constituted improper retaliation, and she also brought Title VII claims based on the underlying conduct.

The Tenth Circuit thoroughly reviewed the test for a First Amendment retaliation claim and concluded, like the district court, that the plaintiff “could not show that her notice contained speech on a matter of public concern.” In so doing, it appeared to hold that a communication “framed as lodging a complaint regarding an employment dispute and seeking damages for it” could never rise to the level of a matter of public concern, unless the subject matter fell within a “narrow range”, such as allegations of corruption by city officials, that was “so imbued with the public interest that speech regarding g it will almost always be a matter of public concern.”

SCOTUS Declines Review of 10th Circuit's Tulsa Diocese Decision

The Daily Oklahoman has this story about yesterday's denial of certiorari in Skryzpczak v. Roman Catholic Diocese of Tulsa.  In that case, the Tenth Circuit affirmed the granting of summary judgment in favor of the Diocese of Tulsa in a Title VII case brought by a former employee of the Diocese.  In an opinion by Judge McKay, the Tenth Circuit held that summary judgment was appropriate under the ministerial exception because although the employee's duties included administrative tasks, her position also required the development and planning of theological and other religious programs.

The court's holding appears to be a relatively straightforward application of the exception, so the denial of certiorari comes as no surprise (although it appears from a review of the Supreme Court docket that the Court requested a response to the petition, so at least one law clerk thought the petition had some merit).  In fact, the Scryzpczak decision, which can be viewed here, is more noteworthy for its rejection of the plaintiff's affidavits that had been submitted by the plaintiff in response to the Diocese's summary judgment motion:

Despite Appellant’s contentions, [her] affidavits are exactly the type of conclusory affidavits that are insufficient to overcome summary judgment. Even if we accept these affidavits are based on personal knowledge, they do not set forth any facts, admissible or otherwise, that a court could consider as raising a material issue of fact. Instead, each affidavit merely parrots a general rule that a court could consider in determining the ministerial exception’s application and then states, in the affiant’s opinion, the legal conclusion the court should reach. Accordingly, we hold the district court did not err in its determination that Appellant was a minister for purposes of the exception.

Tenth Circuit Upholds Injunction Against Oklahoma Sharia Law Ban

In Awad v. Ziriax (No. 10-6273) the Tenth Circuit upheld a district court order preliminarily enjoining the Oklahoma State Election Board from certifying a proposed constitutional amendment that would bar Oklahoma state courts from considering or using “Sharia law,” the law of other States that included Sharia law, or “international law.”

The court upheld the injunction based on the Establishment Clause. It determined that the plaintiff had standing to challenge the amendment as he suffered from “a constitutional directive of exclusion and disfavored treatment of a particular religious legal tradition.” It also determined that the plaintiff had a strong likelihood of success on the merits as the Oklahoma law clearly discriminated among religions, targeting only “Sharia” law. Finally, the court found an absence of a compelling State interest as the State did not “identify any actual problem the challenged amendment seeks to solve” and “did not know of even a single instance where an Oklahoma court had applied Sharia law or used the legal precepts of other nations or cultures, let alone that such applications or uses had resulted in concrete problems in Oklahoma.”

Mental Health Evaluation and Treatment as a Condition of Supervised Release

The defendant in United States v. Sunday (N. 11-8010) “enmeshed himself in one or more Nigerian money scams promoted over the internet.” He then engaged in various acts of banking fraud to obtain money to send to Nigeria. As part of his sentence, the court imposed special conditions on the defendant’s probation, including an order that he “participate in mental health evaluations or treatment as recommended by the U.S. Probation officer and will not terminate treatment without permission of the U.S. Probation officer and the treatment provider.”

Unfortunately, the court addressed this aspect of the appeal only in passing, but it appeared troubled by its breadth. The court directed the district court on remand to “revisit the mental health evaluation and treatment conditions, making further supporting findings to support any reimposition of such conditions, consistent with this court’s discussion of the issue in Mike [632 F.3d 686, 698-700 (10th Cir. 2011)] . . . . Additionally, and also consistent with Mike, any mental health conditions imposed should avoid Article III ambiguities with regard to the probation officer’s supervisory discretion.”

Colorado Appellate Courts Adopt New Case-Citation Format

In an effort to give greater access to practitioners and pro se parties who lack access to Westlaw, Lexis-Nexis or printed volumes of the Pacific Reporter, the Colorado Supreme Court has adopted a new way for parties to cite to Colorado case law.  However, the citation format is optional, so that practitioners can choose to continue citing to the Pacific Reporter.  No party will be required to provide parallel citations.

The Court's press release contains a helpful explanation of how the new citation format works:

A citation to an appellate opinion in the Pacific Reporter could look like this: Smith v. Jones, 45 P.3d 1237, 1254 (Colo. 2012). Under the new format, a citation to a Supreme Court opinion would look like this: Smith v. Jones, 2012 CO 22, ¶¶ 44-45, while a citation to a Court of Appeals opinion would look like this: Jones v. Smith, 2012 COA 35, ¶¶ 44-45. (These are not real cases, only examples.) “CO” means Supreme Court and “COA” means Court of Appeals. The “22” in the first example and the “35” in the second example mean those opinions are, respectively, the 22^nd and the 35^th issued by each court in 2012. Both citations point to the opinion’s 44^th and 45^th paragraphs.

Qualified Immunity

Kerns v. Bader (No. 9-2273) is a lengthy opinion concerning a set of lawsuits by an individual wrongly arrested for shooting down an Albuquerque police helicopter (charges were later dropped after the police ballistics expert changed his opinion regarding whether the bullet found in the helicopter could have come from the guns owned by the plaintiff). Somewhat unusually, all of the defendants were denied qualified immunity and appealed that denial, rather than the other way around. Because it touches on a number of qualified immunity issues, and included a detailed dissent, I have simply summarized the high points.

The first set of defendant officers entered the Plaintiffs’ home the night of the shooting without a warrant; allegedly because they believed the shooter might be inside. The district court analyzed only the first prong of the qualified immunity test (the existence of an actual violation of the plaintiff’s Fourth Amendment rights) and did not determine whether the right violated was clearly established. The Tenth Circuit considered this issue to be fact specific, and a close call. It accordingly remanded this issue to be addressed by the district court in the first instance. The dissent would have affirmed the denial of qualified immunity, as it believed the issue of the presence of exigent circumstances was a factual issue that the court could not review as part of an interlocutory appeal.

The second defendant allegedly violated the plaintiff’s Fourth and Fourteenth amendment rights by asking a hospital to share records concerning the plaintiff’s psychiatric treatment to determine whether he was permitted to own certain guns found in his home. The Tenth Circuit held that the law in this area was not clearly established and reversed the denial of qualified immunity. The dissent questioned the defendant’s decision to seek highly personal medical records of treatment for psychiatric conditions, rather than simply search public records for an adjudication of competency. It argued that he “undertook to obtain all of … [plaintiff’s] records, in spite of their privileged nature, without consent, without a warrant or any other judicial process, in the complete absence of exigent circumstances, and without probable cause; his request was based only on his suspicion that a crime might have been committed. If constitutional privacy protections mean anything at all, this conduct violated [p]laintiff’s right of privacy.”

The final set of defendants was accused of false arrest, false imprisonment, and malicious prosecution. The Tenth Circuit held that because probable cause existed to support the plaintiff’s arrest and detention until the charges against him were dismissed, the defendants were entitled to qualified immunity. The dissent concluded that a proper affidavit would not have demonstrated probable cause.

Colorado Supreme Court Announces Significant Rules Changes

The Colorado Supreme Court recently approved significant rules changes, including changes to the Colorado Appellate Rules, involving the computation of time and various due dates. 

Among other things, the changes include repealing the provision allowing lawyers to tack on three additional days to a response deadline; eliminating the provision that provides for skipping holidays and weekends when the response time is less than eleven days; and changing the deadlines for the filing of appellate briefs.  With respect to appellate brief deadlines, the time has been lengthened.  Opening briefs are now due 42 days after the record is filed, response briefs are due withing 35 days, and reply briefs must be filed within 21 days.

The redlined rules showing the changes can be found here.  The changes take effect on January 1, 2012.