SUPREME COURT OF THE UNITED STATES
No. ALB-12-01
YVETTE WILDING,
PETITIONER
v.
BEAR MOREMONT, ADAM TARGARYAN, AND TY LANISTER
In Their Individual Capacities,
and THE CITY OF WEST ROSE,
RESPONDENTS
On Writ of Certiorari to the Supreme Court
of the United States
BRIEF FOR RESPONDENTS
Team R1
QUESTIONS PRESENTED
I.
Whether the Court of Appeals correctly dismissed
Petitioner’s claim where her conduct was not sufficiently
expressive to implicate the First Amendment, and where
the Albers Wiretapping Statute is content-neutral,
narrowly tailored to protect individual privacy and
public security, and allows for ample alternative
channels of communication.
II.
Whether the Court of Appeals correctly declined to impose
supervisory liability on West Rose Police Chief Ty
Lanister for the actions of his subordinate officers,
where Lanister’s own personal misconduct caused no
violation of the Petitioner’s Fourth Amendment rights, he
had no purpose toward or knowledge of the violation, and
he did not exhibit deliberate indifference regarding his
subordinates’ training.
i
TABLE OF CONTENTS
Questions Presented . . . . . . . . . . . . . . . . . . . . .
i
Table of Contents . . . . . . . . . . . . . . . . . . . . . . ii
Table of Authorities . . . . . . . . . . . . . . . . . . . . . v
Proceedings Below . . . . . . . . . . . . . . . . . . . . . .
1
Constitutional Provisions . . . . . . . . . . . . . . . . . .
3
Statutory Provisions . . . . . . . . . . . . . . . . . . . . . 4
Statement of the Facts . . . . . . . . . . . . . . . . . . . . 5
Summary of the Argument . . . . . . . . . . . . . . . . . . .
8
Argument . . . . . . . . . . . . . . . . . . . . . . . . . .
11
I. THE COURT OF APPEALS CORRECTLY DISMISSED PETITIONER WILDING’S
CLAIM BECAUSE HER CONDUCT WAS NOT SUFFICIENTLY EXPRESSIVE TO
IMPLICATE THE FIRST AMENDMENT, AND BECAUSE THE ALBERS
WIRETAPPING STATUTE IS CONTENT-NEUTRAL, NARROWLY TAILORED TO
PROTECT INDIVIDUAL PRIVACY AND PUBLIC SECURITY, AND ALLOWS
FOR AMPLE ALTERNATIVE CHANNELS OF COMMUNICATION. . . . . . 11
A.
Recording on-duty police officers is not protected
expression under the First Amendment’s freedom of
speech, freedom of press, or right to petition the
government. . . . . . . . . . . . . . . . . . . . . 12
1. Recording on-duty police officers is neither
inherently expressive conduct nor sufficiently
imbued with elements of communication to implicate
the First Amendment. . . . . . . . . . . . . . . 12
2. The First Amendment’s freedom of the press does not
provide an affirmative right to record on-duty
police officers. . . . . . . . . . . . . . . . . 15
3. Respondents’ actions did not interfere with
Wilding’s First Amendment right to petition the
government. . . . . . . . . . . . . . . . . . . . 17
B.
The Albers Wiretapping Statute is content-neutral,
narrowly tailored to the substantial government
interests of individual privacy and public safety, and
leaves open ample alternative channels to convey
ii
information, and therefore passes constitutional
muster under the First Amendment. . . . . . . . . . 18
1. Because the Albers Wiretapping Statute is contentneutral and imposes no prior restraints on conduct,
it is subject to the standard of intermediate
scrutiny. . . . . . . . . . . . . . . . . . . . . 19
2. The Albers Wiretapping Statute is narrowly tailored
to protect the government’s significant interest in
protecting individual privacy and providing public
safety. . . . . . . . . . . . . . . . . . . . . . 20
3. The Albers Wiretapping Statute leaves open ample
alternative channels for communication. . . . . . 25
II.
THE COURT OF APPEALS CORRECTLY DECLINED TO IMPOSE
SUPERVISORY LIABILITY ON WEST ROSE POLICE CHIEF LANISTER,
BECAUSE HE DID NOT CAUSE ANY VIOLATION OF PETITIONER’S
FOURTH AMENDMENT RIGHTS THROUGH HIS OWN PERSONAL
MISCONDUCT, HE HAD NO PURPOSE TOWARD OR KNOWLEDGE OF THE
VIOLATION, AND HE DID NOT EXHIBIT DELIBERATE INDIFFERENCE
REGARDING HIS SUBORDINATES’ TRAINING. . . . . . . . . . 26
A.
The Iqbal Court eliminated the concept of supervisory
liability in suits against government officials, and
therefore Lanister cannot be held liable for the
separate and independent actions of his subordinate
officers. . . . . . . . . . . . . . . . . . . . . . 28
B.
Even if supervisory liability remains a plausible
theory in some limited circumstances, Petitioner’s
claim against Respondent Lanister cannot meet the
heightened standards and personal involvement
threshold that Iqbal requires for suits against
government officials. . . . . . . . . . . . . . . . 31
1.
Lanister did not purposely intend or knowingly
accede to any violation of Petitioner’s Fourth
Amendment rights. . . . . . . . . . . . . . . 32
2.
The pre-Iqbal “deliberate indifference” standard
for failure to train cases is a necessary but no
longer a sufficient condition for establishing a
valid claim against a supervisor for failure to
train subordinates. . . . . . . . . . . . . . 33
iii
C.
3.
Lanister’s failure to train West Rose police
officers with respect to particular Fourth
Amendment procedures did not rise to the level of
deliberate indifference. . . . . . . . . . . . 36
4.
Even if he were deliberately indifferent,
Lanister had insufficient personal involvement
under Iqbal to be liable for a violation of
Petitioner’s rights. . . . . . . . . . . . . . 37
Rejecting liability on the basis of a police chief’s
status as a supervising officer comports with
considerations of government efficiency, effective law
enforcement, judicial restraint, and federalism. . 38
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . .
iv
40
TABLE OF AUTHORITIES
United States Supreme Court Cases
Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). . . . . . . . .passim
Bartnicki v. Vopper, 532 U.S. 514 (2001). . . . . . . . . 21, 22
Bd. of Cnty Comm’rs v. Brown, 520 U.S. 397 (1997). . . .
36, 37
Bivens v. Six Unknown Named Agents of the Fed. Bureau of
Narcotics, 403 U.S. 388 (1971). . . . . . . . . . . . . . . . 29
Borough of Duryea, Pa. v. Guarnieri, 131 S. Ct. 2488 (2011).
17
Brandenburg v. Ohio, 395 U.S. 444 (1969). . . . . . . . . . . 25
Branzburg v. Hayes, 408 U.S. 665 (1972). . . . . . .
15, 16, 23
Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508
(1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
City of Canton v. Harris 489 U.S. 378 (1989). . . 33, 34, 37, 38
City of Dallas v. Stanglin, 490 U.S. 19 (1989). . . . . . . . 14
Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 (1984). .
. . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14, 20
Connick v. Thompson, 131 S. Ct. 1350 (2011). . .
35, 36, 37, 39
Cooper Indus. v. Leatherman Tool Grp., 532 U.S. 424 (2001). . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 27
Dunlop v. Munroe, 7 Cranch 242 (1812). . . . . . . . . . . .
28
Farmer v. Brennan, 511 U.S. 825 (1994). . . . . . . . . . . . 35
Gannett Co., Inc. v. DePasquale, 443 U.S. 368 (1979). . . . . 24
Gitlow v. New York, 268 U.S. 652 (1925). . . . . . . . . . .
12
Graham v. Connor, 490 U.S. 386 (1989). . . . . . . . . . . .
33
Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539
(1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
v
Hartman v. Moore, 547 U.S. 250 (2006). . . . . . . . . . . .
29
Houchins v. KQED, 438 U.S. 1 (1978). . . . . . . . . . . . .
15
Katz v. United States, 389 U.S. 347 (1967). . . . . . . . . . 22
Konigsberg v. State Bar of Cal., 366 U.S. 36 (1961). . . . .
Lovell v. City of Griffin, Ga., 303 U.S. 444 (1938). . .
18
19, 20
Members of City Council of City of Los Angeles v. Taxpayers for
Vincent, 466 U.S. 789 (1984). . . . . . . . . . . . . . . 23, 25
Minn. State Bd. for Cmty. Colls. v. Knight, 465 U.S. 271 (1984).
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). . .
27, 28
Near v. Minnesota, 283 U.S. 687 (1931). . . . . . . . . . . . 20
New York Times Co. v. United States, 403 U.S. 713 (1971). 15, 16
Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986). . . .
20
Rizzo v. Goode, 423 U.S. 362 (1976). . . . . . . . . . . . .
27
Robertson v. Sichel, 127 U.S. 507 (1888). . . . . . . . . . . 28
Roviaro v. United States, 353 U.S. 53 (1957). . . . . . . . . 24
Rumsfeld v. Forum for Academic & Inst. Rights, Inc., 547 U.S. 47
(2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Spence v. Washington, 418 U.S. 405 (1974). . . . . .
12, 13, 18
Texas v. Johnson, 491 U.S. 397 (1989). . . . . . . . . . . .
14
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994). . . . . 19
United States v. Albertini, 472 U.S. 675 (1985). . . . . . .
20
United States v. Jones, 132 S. Ct. 945 (2012). . . . . . . .
21
United States v. O’Brien, 391 U.S. 367 (1968). . . . . .
12, 19
Ward v. Rock Against Racism, 491 U.S. 781 (1989). . . . . 25, 26
vi
Whitney v. California, 274 U.S. 357 (1927). . . . . . . . 18, 23
Zemel v. Rusk, 381 U.S. 1 (1965). . . . . . . . . . . . . 15, 17
Other Federal Cases
Dodds v. Richardson, 614 F.3d 1185 (10th Cir. 2010). . .
31, 35
Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011). . . . . . . .
22
Maldonado v. Fontanes, 568 F.3d 263 (1st Cir. 2009). . . . .
31
Vinning-El v. Evans, 657 F.3d 591 (7th Cir. 2011). . . . . .
30
Constitutional Provision
U.S. Const. amend. I. . . . . . . . . . . . . . . . . 12, 15, 17
Federal Statutory Provision
42 U.S.C. § 1983. . . . . . . . . . . . . . . . . . . . . . . 27
State Statutory Provision
Albers Gen. Laws ch. 270, § 3517(a). . . . . . . . . . .
16, 25
Secondary Sources
Elena Kagan, Regulation of Hate Speech and Pornography After
R.A.V., 60 U. Chi. L. Rev. 873 (1993). . . . . . . . . . . .
14
Joseph Story, Commentaries on the Constitution of the United
States (1833). . . . . . . . . . . . . . . . . . . . . . . .
19
Office of Juvenile Justice & Delinquency Prevention, U.S. Dep’t
of Justice, Gang Prosecution Manual (2009). . . . . . . . . . 23
President's Comm’n on Law Enforcement and Admin. of Justice, The
Challenge of Crime in a Free Society (1967). . . . . . . . . 21
vii
Tom R. Tyler & Jeffrey Fagan, Legitimacy and Cooperation: Why Do
People Help the Police Fight Crime in Their Communities?, 6 Ohio
St. J. Crim. L. 231 (2008). . . . . . . . . . . . . . . . . . 23
viii
PROCEEDINGS BELOW
On October 17, 2009, Officers Bear Moremont and Adam
Targaryan arrested Petitioner for illegally intercepting oral
communications in violation of Albers Gen. Laws ch. 270, §
3517(a), the Albers Wiretapping Statute.
[R. 1]
Prosecutors
later dropped the charges and Petitioner Yvette Wilding brought
suit in the United States District Court for the District of
Albers against Respondents Moremont, Targaryan, and the City of
West Rose under 42 U.S.C. § 1983.
Id.
Petitioner claimed that
her arrest under the wiretapping statute violated her First
Amendment rights and that the seizure of her iPhone during the
arrest violated her Fourth Amendment rights.
Id. at 2.
She
also filed a § 1983 claim against Respondent Ty Lanister, the
West Rose Police Chief, seeking to hold him liable as a
supervisor for the officers’ violation of her Fourth Amendment
rights.
Id.
The District Court consolidated the cases pursuant
to Fed. R. Civ. P. 42(a)(2).
Id.
Prior to trial, Respondents Moremont, Targaryan, and the
City settled Petitioner’s Fourth Amendment claims against them
and then moved for summary judgment on the First Amendment
claims under Fed. R. Civ. P. 56(b).
Id. at 2-3.
The District
Court granted Respondents’ motion, finding that Petitioner’s
arrest did not implicate a protected First Amendment right.
at 2.
1
Id.
Respondent Lanister also moved for summary judgment,
arguing that he could not be held liable as a supervisor for
failing to train his subordinate officers.
Id. at 3-4.
The
District Court granted that motion, finding that Petitioner had
no valid § 1983 claim against Respondent Lanister.
Id. at 4.
Petitioner appealed both decisions to the United States
Court of Appeals for the Fourteenth Circuit.
Id. at 2, 4.
The
Court of Appeals affirmed both rulings of the District Court,
holding that Petitioner’s arrest did not violate her First
Amendment rights and that Respondent Lanister is not subject to
supervisory liability.
Id. at 22.
Petition appealed to this Court.
Id. at 23.
On January
23, 2012, this Court granted Certiorari to consider all issues
raised in the court below.
Id.
2
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. I
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the government for
a redress of grievances.
U.S. Const. amend. IV
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the
persons or things to be seized.
3
STATUTORY PROVISIONS
42 U.S.C. § 1983 (2006). Civil action for deprivation of rights.
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit
in equity, or other proper proceeding for redress, except that
in any action brought against a judicial officer for an act or
omission taken in such officer's judicial capacity, injunctive
relief shall not be granted unless a declaratory decree was
violated or declaratory relief was unavailable. For the purposes
of this section, any Act of Congress applicable exclusively to
the District of Columbia shall be considered to be a statute of
the District of Columbia.
Albers Gen. Laws ch. 270, § 3517(a). Albers Wiretapping Statute.
Any person who commits an interception of any wire or oral
communication shall be fined not more than ten thousand dollars,
or imprisoned in the state prison for not more than five years,
or imprisoned in a jail or house of correction for not more than
two and one half years, or both so fined and given one such
imprisonment.
The term “interception” means to record, or aid another to
record the contents of any wire or oral communication through
the use of any intercepting device by any person other than a
person given prior authority by all parties to such
communication.
4
Statement of the Facts
In October 2009, Petitioner Wilding and her boyfriend John
Snow were members of the “Mance Raiders,” a violent criminal
gang that police in the City of West Rose have been
investigating since 2008.
[R. 4, 6-7]
On October 7, 2009, Snow
told Wilding that he wished to stop seeing her and “make a clean
break” from his involvement with the gang.
Id. at 5.
Concerned
that Snow might contact the police, Wilding began to follow him
regularly.
Id.
On October 10, Snow approached the West Rose
police about working as a confidential informant.
Id. at 7.
He
quickly assisted the police in collecting evidence for
indictments against several key gang members.
Id.
On October 17, Wilding observed Snow stop at the entrance
to an alley in downtown West Rose, where she saw two uniformed
police officers approach him.
alley.
Id.
Id. at 5.
No one else was in the
The officers, Respondents Moremont and Targaryan of
the West Rose Police Department, then walked approximately ten
feet into the alley.
Id.
Snow then followed them.
Id.
Wilding then approached, stopping at the alley’s entrance.
Id.
Upon seeing Snow and the officers talking, Wilding began
recording audio and video of the interaction with her iPhone.
Id. at 5-6.
After approximately five minutes, Officer Moremont noticed
that Wilding was recording their conversation and alerted
5
Officer Targaryan and Snow.
Id. at 6.
Snow immediately ran
away, while the officers ordered Wilding to put down her phone
and put her hands up.
Id.
Wilding raised her free hand but
continued to record the interaction.
Id.
Then, Wilding refused
the officers’ second order to put down her phone.
Id.
Instead,
Wilding yelled out for two hidden Mance Raiders to follow Snow.
Id.
After Wilding refused the second order to stop recording,
Officer Targaryan placed her under arrest for violating the
Albers Wiretapping Statute.
Id.
Officer Moremont seized
Wilding’s phone, stopped the recording, and then deleted the
recording after consulting with Officer Targaryan.
Id.
Snow subsequently appeared at a hospital, having suffered
severe injuries.
Id.
Soon after, he moved away and has refused
to cooperate further with the police.
Id. at 7.
Respondent Ty Lanister, the West Rose Police Chief and the
officers’ supervisor, was later deposed pursuant to Petitioner’s
complaint.
Id.
Lanister testified that the West Rose Police
Department has “no official department policy” about how to
handle “citizen recorders,” but that he had never ordered
subordinates to delete recordings after a wiretapping arrest.
Id.
Lanister testified that the Albers District Attorney told
him during the summer of 2009 that deleting photos or recordings
from a citizen’s camera violated the Fourth Amendment, except in
6
cases of “exigency or threat to police safety.”
Id. at 8.
Lanister testified that he did not inform his officers of the
District Attorney’s opinion because “[i]t never came up.”
Id.
Lanister also testified that “it’s always a threat to the
officer’s ability to safely do his job when a citizen sticks a
camera in the officer’s face.”
Id.
7
SUMMARY OF THE ARGUMENT
The Court of Appeals correctly dismissed Petitioner
Wilding’s claim because her conduct was not sufficiently
expressive to implicate the First Amendment, and because the
Albers Wiretapping Statute is content-neutral, narrowly tailored
to protect individual privacy and public safety, and allows for
ample alternative channels of communication. Recording on-duty
police officers is not protected expression under the First
Amendment’s freedom of speech, freedom of press, or right to
petition the government. Petitioner’s conduct was neither
inherently expressive conduct nor sufficiently imbued with
elements of communication to implicate the First Amendment.
Furthermore, the First Amendment’s freedom of the press does not
provide an affirmative right to record on-duty police officers
and Respondents’ actions did not interfere with Petitioner’s
right to petition the government. Therefore, Petitioner’s
conduct fails to receive First Amendment protection.
Even if Petitioner’s conduct is sufficiently expressive to
invoke the First Amendment, the Albers Wiretapping Statute
nonetheless passes constitutional muster because it is contentneutral, narrowly tailored to the substantial government
interests of individual privacy and public safety, and leaves
open ample alternative channels to convey information.
Because
the statute is content-neutral and imposes no prior restraints
8
on conduct, it is subject to the standard of intermediate
scrutiny. The wiretapping statute survives this standard because
it is narrowly tailored to protect individual privacy from
unauthorized intrusion and provide public safety by encouraging
cooperation with the police, and because the statute leaves open
ample alternative channels for communication.
The Court of Appeals also correctly declined to impose
supervisory liability on Respondent Lanister, the West Rose
Police Chief, because he caused no violation of Petitioner’s
Fourth Amendment rights through his own personal misconduct.
This Court eliminated supervisory liability as a distinct theory
of fault in Iqbal and held that government officials cannot be
vicariously liable for their subordinates’ actions or
misconduct.
Therefore, because Lanister was not directly
responsible for any constitutional injury to Petitioner, he
cannot be held liable at all.
Even if some limited form of supervisory liability survived
Iqbal, the heightened standards that would apply preclude
Petitioner from making out a valid claim.
Lanister had no
purpose or knowledge with respect to the deprivation of
Petitioner’s rights, and his failure to properly train his
subordinate officers did not amount to the kind of deliberate
indifference sufficient to trigger liability.
9
Finally,
Lanister’s near complete lack of personal involvement in the
violation at issue renders Petitioner’s claim meritless.
10
ARGUMENT
I.
THE COURT OF APPEALS CORRECTLY DISMISSED PETITIONER
WILDING’S CLAIM BECAUSE HER CONDUCT WAS NOT SUFFICIENTLY
EXPRESSIVE TO IMPLICATE THE FIRST AMENDMENT, AND BECAUSE
THE ALBERS WIRETAPPING STATUTE IS CONTENT-NEUTRAL,
NARROWLY TAILORED TO PROTECT INDIVIDUAL PRIVACY AND
PUBLIC SECURITY, AND ALLOWS FOR AMPLE ALTERNATIVE
CHANNELS OF COMMUNICATION.
The Court of Appeals for the Fourteenth Circuit correctly
dismissed Petitioner Wilding’s First Amendment claim because her
arrest pursuant to the Albers Wiretapping Statute did not
violate her constitutional rights.
Recording on-duty police
officers’ private conversations is not inherently expressive
conduct, essential to the right to petition, or a recognized
element of the freedom of the press.
Indeed, Petitioner’s
actions were part of a criminal plan to violently retaliate
against a police informant.
Therefore, Petitioner’s actions do
not fall under the aegis of the First Amendment.
Even if Petitioner’s conduct implicates the First
Amendment, the Albers Wiretapping Statute is a valid exercise of
governmental power and her arrest is not a constitutional
violation.
Because the statute is content-neutral, intermediate
scrutiny applies.
The statute is constitutional because it is
narrowly tailored to protect the government’s substantial
interest in promoting individual privacy and public safety, and
leaves open ample alternative channels for communicating any
message.
11
This Court reviews de novo questions of constitutional law.
Cooper Indus. v. Leatherman Tool Grp., 532 U.S. 424, 431 (2001).
The First Amendment applies to the states through the Fourteenth
Amendment’s Due Process Clause.
See Gitlow v. New York, 268
U.S. 652, 666 (1925).
A. Recording on-duty police officers is not protected
expression under the First Amendment’s freedom of speech,
freedom of press, or right to petition the government.
1. Recording on-duty police officers is neither
inherently expressive conduct nor sufficiently
imbued with elements of communication to implicate
the First Amendment.
The First Amendment protects freedom of speech, U.S. Const.
amend. I, but conduct must be “sufficiently imbued with elements
of communication to fall within [its] scope.”
Spence v.
Washington, 418 U.S. 405, 409 (1974) (per curiam).
A person
engages in expressive conduct when “[a]n intent to convey a
particularized message [is] present, and in the surrounding
circumstances the likelihood was great that the message would be
understood by those who viewed it.”
Id. at 410.
A person’s
intent, however, is insufficient by itself to render conduct
expressive.
See United States v. O’Brien, 391 U.S. 367, 376
(1968) (“We cannot accept the view that an apparently limitless
variety of conduct can be labeled ‘speech’ whenever the person
engaging in the conduct intends thereby to express an idea.”).
Furthermore, a person seeking to invoke the First Amendment’s
12
protection bears the burden of “demonstrat[ing] that the First
Amendment even applies.”
Clark v. Cmty. for Creative Non-
Violence, 468 U.S. 288, 293 n.5 (1984).
Petitioner’s actions – recording police officers
interacting with a confidential informant pursuant to an
investigation of a violent criminal enterprise – do not
constitute “conduct that is inherently expressive.”
Rumsfeld v.
Forum for Academic & Inst. Rights, Inc., 547 U.S. 47, 66 (2006).
Although Petitioner asserts that her conduct “objectively
conveyed the idea that citizens should be watching the police,”
[R. 10], this claim is tenuous at best.
The record demonstrates
that any reasonable observer would have “miss[ed] the drift of
[Wilding’s] point at the time that [she] made it.”
U.S. at 410.
Spence, 418
Because Petitioner remained unnoticed for the
first five minutes of her recording, [R. 6], an observer would
have “no way of knowing” that Wilding was expressing an idea.
See Forum for Academic & Inst. Rights, 547 U.S. at 66.
Even
after the officers discovered Petitioner was recording, she
reacted only by ensuring her fellow gang members exacted revenge
on Snow.
Indeed, the only logical inference from the record is
that Petitioner was secretly recording Snow to violently
retaliate for his cooperation with police, not to communicate
any idea about the role of police in society.
Because any
expressive component of her conduct was neither “intentional”
13
nor “overwhelmingly apparent,” Texas v. Johnson, 491 U.S. 397,
406 (1989), Petitioner fails to meet her burden.
See Clark, 468
U.S. at 293 n.5 (rejecting the argument “that the burden on the
[speakers] is limited to the advancement of [only] a plausible
contention that their conduct is expressive”) (internal
quotation and citation omitted).
Therefore, the Court of
Appeals correctly held that Petitioner’s recording was pure
conduct, not speech.
Even if this Court were to hold that Petitioner’s conduct
was to some small degree “expressive,” the First Amendment still
does not apply.
Petitioner’s actions contained at most a
“kernel of expression,” which this Court has found insufficient
to invoke the First Amendment.
See City of Dallas v. Stanglin,
490 U.S. 19, 25 (1989) (“It is possible to find some kernel of
expression in almost every activity a person undertakes . . .
but such a kernel is not sufficient to bring the activity within
the protection of the First Amendment.”).
“To hold otherwise
would be to create a rule that all conduct is presumptively
expressive,” Clark, 468 U.S. at 293 n.5, which would transform
the First Amendment into an unrecognizable proscription.
See
Elena Kagan, Regulation of Hate Speech and Pornography After
R.A.V., 60 U. Chi. L. Rev. 873, 884 (1993) (“When ‘conduct’
becomes a synonym for ‘speech’ . . . government can regulate
either almost everything or almost nothing.”).
14
2. The First Amendment’s freedom of the press does not
provide an affirmative right to record on-duty
police officers.
The First Amendment forbids any law “abridging the freedom
of . . . the press.”
U.S. Const. amend. I.
“[T]he press must
be left free to publish news, whatever the source, without
censorship, injunctions, or prior restraints.”
New York Times
Co. v. United States, 403 U.S. 713, 717 (1971) (Black, J.,
concurring).
The First Amendment’s Free Press Clause, however,
protects only the press’s right to disseminate information.
“The right to speak and publish does not carry with it the
unrestrained right to gather information.”
Zemel v. Rusk, 381
U.S. 1, 17 (1965).
While “a right to gather news, of some dimensions, must
exist,” Branzburg v. Hayes, 408 U.S. 665, 728 (1972) (Stewart,
J., dissenting), “the First Amendment does not guarantee the
press a constitutional right of special access to information
not available to the public generally.”
opinion).
Id. at 684 (majority
This Court’s precedents establish “no basis for the
claim that the First Amendment compels others – private persons
or governments - to supply information.”
U.S. 1, 11 (1978).
Houchins v. KQED, 438
The government need not affirmatively
provide access to information; it must only “assure the public
and the press equal access once government has opened its
doors.”
Id. at 16 (Stewart, J., concurring in the judgment).
15
Under the First Amendment, reporters and private citizens
“remain free to seek news from any source by means within the
law.”
Branzburg, 408 U.S. at 681-82.
The Albers Wiretapping Statute does not implicate
Petitioner’s rights under the Free Press Clause.
The statute
imposes no unlawful restrictions on her constitutional rights,
only limiting Petitioner’s ability to record “the contents of
any wire or oral communication through the use of any
intercepting device,” Albers Gen. Laws ch. 270, § 3517(a),
something to which she has no affirmative right of access.
See
Branzburg, 408 U.S. at 681 (“Although . . . private wiretapping
could provide newsworthy information, neither reporter nor
source is immune from conviction for such conduct, whatever the
impact on the flow of news.”).
Indeed, the statute “involve[s]
no intrusions upon speech or assembly, no prior restraint or
restriction on what the press may publish, and no express or
implied command that the press publish what it prefers to
withhold.”
Id.
Despite Petitioner’s implausible assertions to
the contrary, the statute leaves the press sufficiently
protected to be able to “bare the secrets of government and
inform the people.”
concurring).
New York Times, 403 U.S. at 717 (Black, J.,
Recognizing Petitioner’s free press claim –
upholding a constitutional right of access to record
individuals’ private conversations – would invalidate many of
16
society’s most basic privacy protections.
See Zemel, 381 U.S.
at 16-17 (“There are few restrictions on action which could not
be clothed by ingenious argument in the garb of decreased data
flow.”).
3. Respondents’ actions did not interfere with
Wilding’s First Amendment right to petition the
government.
The First Amendment protects an individual’s “right . . .
to petition the Government for a redress of grievances.”
Const. amend. I.
U.S.
“[T]he right to petition extends to all
departments of the Government.”
Cal. Motor Transp. Co. v.
Trucking Unlimited, 404 U.S. 508, 510 (1972).
This right,
however, does not require government officials to affirmatively
respond or to provide individuals with “a meaningful opportunity
to express one’s views.”
See Minn. State Bd. for Cmty. Colls.
v. Knight, 465 U.S. 271, 288 n.10 (1984).
Although Petitioner
asserts that her right to petition was violated, the government
has imposed no constraints on her right “to express [her] ideas,
hopes, and concerns to [her] government and [her] elected
representatives.”
See Borough of Duryea, Pa. v. Guarnieri, 131
S. Ct. 2488, 2495 (2011).
No police actions prevented her from
petitioning her government or the courts.
Even accepting that
the absence of concomitant audio recordings would somehow weaken
a future petition, it would certainly not render Petitioner’s
right to seek a redress of grievances “meaningless.”
17
Furthermore, the Albers Wiretapping Statute does not
contravene the “primary purpose of the First Amendment . . . to
insure that all ideas would be allowed to enter the ‘competition
of the market.’”
Konigsberg v. State Bar of Cal., 366 U.S. 36,
63 (1961) (Black, J., dissenting).
Wilding may purvey her
opinions on the marketplace of ideas and “discuss [her] freely
supposed grievances and proposed remedies.”
Whitney v.
California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring).
Because Petitioner remains free to submit a petition to the
Albers Legislature or any other branch of government, her right
to petition under the First Amendment remains unaffected.
B. The Albers Wiretapping Statute is content-neutral,
narrowly tailored to the substantial government interests
of individual privacy and public safety, and leaves open
ample alternative channels to convey information, and
therefore passes constitutional muster under the First
Amendment.
Even if Petitioner’s conduct is sufficiently expressive to
invoke the First Amendment’s protections, the government may
nonetheless impose reasonable regulations.
See Spence, 418 U.S.
at 417 (1974) (Rehnquist, J., dissenting) (“The right of free
speech, though precious, remains subject to reasonable
accommodation to other valued interests.”).
The content-neutral
Albers Wiretapping Statute passes intermediate scrutiny, because
it furthers significant government interests with narrowly
18
tailored regulations that leave open ample alternative channels
for communication.
See O’Brien, 391 U.S. at 377.
1. Because the Albers Wiretapping Statute is contentneutral and imposes no prior restraints on conduct,
it is subject to intermediate scrutiny.
The record discloses no evidence that the Albers
legislature sought “to suppress unpopular ideas or information
or manipulate the public debate” or to “distinguish favored
speech from disfavored speech on the basis of the ideas or views
expressed.”
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641,
643 (1994).
Indeed, both parties agree that the statute is
content-neutral.
[R. 13]
Moreover, Wilding faces no “prior restraint” on her conduct
and may freely disseminate any information she collects.
Petitioner’s argument ignores the fact that the doctrine of
prior restraint is fundamentally concerned with the publication
of information, specifically “the right to publish without any
previous restraint or license.”
Joseph Story, Commentaries on
the Constitution of the United States § 1879 (1833).
Indeed,
this Court has long considered prior restraints presumptively
invalid because they “strike[] at the very foundation of the
freedom of the press by subjecting it to license and
censorship.”
(1938).
Lovell v. City of Griffin, Ga., 303 U.S. 444, 451
Officers Moremont and Targaryan, however, arrested
Petitioner for her illegal conduct only.
19
The fact that her
unlawful recording was abridged in the course of the arrest does
not convert a valid criminal statute into a system of “license
and censorship.”
See id.
Because the Albers legislature acted
“without reference to the content of the regulated speech,”
Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48 (1986), and
the statute imposes only “the subsequent punishment of such as
may be deemed contrary to public welfare,” Near v. Minnesota,
283 U.S. 687, 714 (1931), this Court applies intermediate
scrutiny.
2. The Albers Wiretapping Statute is narrowly tailored
to protect the government’s significant interest in
protecting individual privacy and providing public
safety.
The Albers Wiretapping Statute survives constitutional
challenge because it is “narrowly tailored to serve . . .
significant governmental interest[s].”
Clark, 468 U.S. at 293.
“An incidental burden on speech” is narrowly tailored “so long
as the neutral regulation promotes a substantial government
interest that would be achieved less effectively absent the
regulation.”
(1985).
United States v. Albertini, 472 U.S. 675, 689
Statutes regulating protected speech are not “invalid
simply because there is some imaginable alternative that might
be less burdensome on speech.”
Id.
The Albers Wiretapping Statute protects at least two
substantial state interests: protecting individual privacy by
20
preventing unauthorized audio recording and providing public
safety through furthering cooperation with law enforcement.
Individual privacy is a government “interest[] of the highest
order,”
Bartnicki v. Vopper, 532 U.S. 514, 518 (2001), which
“in a democratic society . . . is essential if citizens are to
think and act creatively and constructively.”
President's
Comm’n on Law Enforcement and Admin. of Justice, The Challenge
of Crime in a Free Society 202 (1967).
The First Amendment
itself actually protects this privacy – the “freedom not to
speak publicly, one which serves the same ultimate end as
freedom of speech in its affirmative aspect.”
Harper & Row,
Publishers, Inc. v. Nation Enters., 471 U.S. 539, 559 (1985)
(internal quotation omitted).
Without sufficient protection “the fear of public
disclosure of private conversations might well have a chilling
effect on private speech.”
Bartnicki, 532 U.S. at 533.
Indeed,
“[e]very spoken word relating to each man's personal, marital,
religious, political, or commercial concerns can be intercepted
by an unseen auditor and turned against the speaker to the
auditor's advantage.”
(citation omitted).
Id. at 543 (Rehnquist, C.J., dissenting)
This concern is amplified in light of
today’s “dramatic technological change.”
See United States v.
Jones, 132 S. Ct. 945, 964 (2012) (Alito, J., concurring).
from chilling protected speech, legislation protecting
21
Far
individual privacy “encourage[s] conversations that otherwise
might not take place.”
Bartnicki, 532 U.S. at 537 (Breyer, J.,
concurring).
The fact that a police officer is on-duty does not render
all of his conduct public.
Moremont and Targaryan had a
reasonable expectation that their conversation with Snow would
remain private; Snow undoubtedly shared this expectation.
See
Katz v. United States, 389 U.S. 347, 351 (1967) (“[W]hat [a
person] seeks to preserve as private, even in an area accessible
to the public, may be constitutionally protected.”).
The
conversation occurred away from passersby in an alley - a far
cry from a public place.
Cf. Glik v. Cunniffe, 655 F.3d 78, 84
(1st Cir. 2011) (recording police officers executing arrest was
constitutionally protected because it took place “in the
apotheosis of a public forum”).
Accepting an expansive argument that on-duty police
officers never have a reasonable expectation of privacy would
not only violate their privacy, their dignity, and chill their
speech, but it would also vitiate Snow’s consent.
Such a
holding would sensationalize the average person’s day-to-day
interactions with police.
Private citizens could no longer
speak to the police without fearing a surreptitious recording,
even when their conversation occurred in an objectively private
setting.
22
Allowing any person to violate the officers’ and Snow’s
privacy in this situation would chill important private speech,
contravening a central purpose of the First Amendment.
See
Whitney, 274 U.S. at 375 (“Those who won our independence
believed that the final end of the state was to make men free to
develop their faculties. . . .”).
Therefore, the statute
“responds precisely to the substantive problem which
legitimately concern[ed] the [government].”
Members of City
Council of City of Los Angeles v. Taxpayers for Vincent, 466
U.S. 789, 810 (1984).
The Albers Wiretapping Statute also protects the
government’s substantial interest in public safety.
“Fair and
effective law enforcement aimed at providing security for the
person and property of the individual is a fundamental function
of government.”
Branzburg, 408 U.S. at 690.
To accomplish this
goal, “the police must be able to elicit cooperation from
community residents.”
Tom R. Tyler & Jeffrey Fagan, Legitimacy
and Cooperation: Why Do People Help the Police Fight Crime in
Their Communities?, 6 Ohio St. J. Crim. L. 231, 233 (2008).
Confidential informants are an important element of law
enforcement efforts, especially against gangs and other criminal
organizations.
See Office of Juvenile Justice & Delinquency
Prevention, U.S. Dep’t of Justice, Gang Prosecution Manual 21
(2009) (“[T]he benefits of [confidential informant]-supplied
23
information can be enormous.”).
Would-be cooperators and
informants, however, are unlikely to come forward if their
interactions with police are always subject to surreptitious
monitoring and recording.
Therefore, the government has a
substantial interest in maintaining the anonymity of
confidential informants.
See Gannett Co., Inc. v. DePasquale,
443 U.S. 368, 398 (1979) (noting the government’s interest in
“preserv[ing] the confidentiality of sensitive information and
the identity of informants”).
The West Rose police used Snow as a confidential informant
pursuant to investigating the Mance Raiders.
The uncontested
record demonstrates that Snow was critical to investigating the
Mance Raiders’ violent criminal activities and that his police
cooperation ended after Wilding’s recording.
Publicly
disclosing Snow’s identity thwarted the police investigation and
caused Snow to suffer severe injuries, substantially affecting
“the public interest in effective law enforcement.”
Roviaro v.
United States, 353 U.S. 53, 59 (1957).
Maintaining the privacy of both Snow and the officers,
ensuring their safety in a dangerous situation, and furthering
an important criminal investigation undoubtedly constitute
“substantial interests.”
By restricting undue invasions of
privacy in the form of unauthorized recording, the Albers
Wiretapping Statute “directly furthers [a] legitimate
24
governmental interests,” which “would have been less well served
in the absence of the [wiretapping] guideline.”
Against Racism, 491 U.S. 781, 801 (1989).
Ward v. Rock
The statute is not
perfect, but “it need not be the least restrictive or least
intrusive means” available.
Id. at 798.
Therefore, “[i]t is
not ‘substantially broader than necessary’ to achieve the
[government’s] legitimate ends and thus it satisfies the
requirement of narrow tailoring.”
Id. at 802 (quoting Taxpayers
for Vincent, 466 U.S. at 808).
3. The Albers Wiretapping Statute leaves open ample
alternative channels for communication.
Petitioner may still express her views in various forums,
petition the government, and gather information in any legal
manner to inform the public, including taking notes,
photographing events, and recording video.
The statute
prohibits only recording without permission “the contents of any
wire or oral communication through the use of any intercepting
device.”
Albers Gen. Laws ch. 270, § 3517(a).
Wilding may even
advocate that others violate the statute, so long as “such
advocacy is [not] directed to inciting or producing imminent
lawless action and is [not] likely to incite or produce such
action.”
Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).
Additionally, “there has been no showing that the remaining
avenues of communication are inadequate” and it is manifest that
25
the statute will not have a “substantial deleterious effect on
the ability” of the press to cover the police.
at 801, 802.
Ward, 491 U.S.
Wilding’s implicit assertion that the wiretapping
statute “may reduce to some degree the potential audience” for
her speech “is of no consequence.”
Id. at 802.
Therefore, the
statute leaves open ample alternative channels for Wilding to
convey whatever message she chooses.
For the foregoing reasons, this Court should AFFIRM the
Court of Appeals’s holding that Petitioner’s conduct does not
implicate the First Amendment and that the Albers Wiretapping
Statute is content-neutral, narrowly tailored to substantial
government interests, and provides ample alternative channels
for communication.
II.
THE COURT OF APPEALS CORRECTLY DECLINED TO IMPOSE
SUPERVISORY LIABILITY ON WEST ROSE POLICE CHIEF LANISTER,
BECAUSE HE DID NOT CAUSE ANY VIOLATION OF PETITIONER’S
FOURTH AMENDMENT RIGHTS THROUGH HIS OWN PERSONAL
MISCONDUCT, HE HAD NO PURPOSE TOWARD OR KNOWLEDGE OF THE
VIOLATION, AND HE DID NOT EXHIBIT DELIBERATE INDIFFERENCE
REGARDING HIS SUBORDINATES’ TRAINING.
Petitioner Wilding’s Fourth Amendment claim under 42 U.S.C.
§ 1983 fails because it ignores recent applicable precedent and
lacks support in the record to meet the relevant standards for
establishing liability.
Petitioner, having already settled
claims against other defendants, now seeks to hold West Rose
Police Chief Ty Lanister legally responsible for his officers’
violation of her constitutional rights.
26
Her effort to invoke
the theory of supervisory liability, however, necessarily falls
short.
Petitioner’s attempt to secure yet another defendant by
attributing to Lanister the actions of his subordinates cannot
succeed under this Court’s precedents.
Petitioner’s appeal of the lower court’s grant of summary
judgment presents a question of law, which this Court reviews de
novo.
Cooper Indus. v. Leatherman Tool Grp., 532 U.S. 424, 431
(2001).
Section 1983 provides a cause of action against any
person acting under color of state law who “subjects, or causes
to be subjected, any citizen . . . to the deprivation of any
rights” guaranteed by U.S. law or the U.S. Constitution.
U.S.C. § 1983 (2006).
42
In considering the statute’s
applicability to government supervisors in charge of offending
officers, this Court has long emphasized the causation
requirement necessary to sustain a § 1983 suit: liability may
attach for a particular government actor only when its execution
of official government policy causes the injury for which a
plaintiff sues to recover.
See Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 691-94 (1978) (finding municipal “person” liable
under § 1983 only where the case “unquestionably involve[d]
official policy as the moving force of the constitutional
violation”); Rizzo v. Goode, 423 U.S. 362, 375-76 (1976)
(finding no § 1983 liability for city and police department
officials absent a “showing of direct responsibility for the
27
[alleged misconduct] of a small percentage of the police
force”).
Furthermore, it is well-established that government
officials are not vicariously liable for the actions of their
subordinates based on the doctrine of respondeat superior.
See
Monell, 436 U.S. at 691; Robertson v. Sichel, 127 U.S. 507, 51516 (1888); Dunlop v. Munroe, 7 Cranch 242, 269 (1812).
Government supervisors are liable only if directly responsible
for wrongdoing which causes harm.
Petitioner’s claim cannot be sustained under § 1983 based
merely on Lanister’s alleged failure to train subordinate
officers on particular Fourth Amendment procedures.
This
Court’s ruling in Ashcroft v. Iqbal foreclosed liability for
government officials based on anything but their own personal
misconduct.
129 S. Ct. 1937, 1948-49.
The Court should confirm
the principles it announced in Iqbal, and reject Petitioner’s
attempt to reinstate an expansive notion of supervisory
liability that hinders government officials’ ability to do their
jobs.
A. The Iqbal Court eliminated the concept of supervisory
liability in suits against government officials, and
therefore Lanister cannot be held liable for the separate
and independent actions of his subordinate officers.
Petitioner’s claim rests fundamentally on a robust
conception of supervisory liability, a theory which this Court
28
precluded in the Iqbal decision.
Javaid Iqbal sued several
high-ranking officials in the Department of Justice, seeking to
hold them liable for the federal authorities’ allegedly unlawful
discrimination in imprisoning and mistreating him on account of
his race, religion, or national origin.
Id. at 1942.
Whatever
constitutional violations Iqbal may have suffered at the hands
of lower-level government employees, the Court maintained and
reinforced its complete and longstanding rejection of respondeat
superior in this context, holding that “each Government
official, his or her title notwithstanding, is only liable for
his or her own misconduct.”
Id. at 1949.
Iqbal brought his suit under Bivens, which forms a cause of
action for plaintiffs to sue federal officials for deprivations
of their constitutional rights.
See Bivens v. Six Unknown Named
Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 403
(1971).
Though Iqbal did not arise under § 1983, the Court
acknowledged that where Bivens applies, its cause of action is
the “‘federal analog’” to § 1983 suits against state officials.
Iqbal, 129 S. Ct. at 1948 (quoting Hartman v. Moore, 547 U.S.
250, 254 n.2 (2006)).
The Iqbal Court clearly intended to extend its holding
beyond both the factual circumstances of the case and the
procedural limitations of Bivens actions; the persistent theme
was that all constitutional claims against government officials
29
must proceed on a theory of direct liability.
“Because
vicarious liability is inapplicable to Bivens and § 1983 suits,”
it stated broadly, “a plaintiff must plead that each Governmentofficial defendant, through the official’s own individual
actions, has violated the Constitution.”
Id.
Indeed, in both
suits against federal officials under Bivens and suits against
state officials under § 1983, “the term ‘supervisory liability’
is a misnomer.”
Id.
In the wake of Iqbal, liability cannot be established by an
official’s status as a supervising officer, but only by his or
her own actions.
Therefore, it is hard to escape the conclusion
that the very premise of supervisory liability has been
eliminated entirely.
That, at least, is how the Iqbal
dissenters – hoping themselves to preserve supervisory liability
– understood the Court’s holding.
Id. at 1957 (Souter, J.,
dissenting) (“The nature of a supervisory liability theory is
that the supervisor may be liable, under certain conditions, for
the wrongdoing of his subordinates, and it is this very
principle that the majority rejects.”).
This commonsense
reading of Iqbal’s plain and direct language should settle the
matter.
See Vinning-El v. Evans, 657 F.3d 591, 592 (7th Cir.
2011) (“Section 1983 does not authorize ‘supervisory liability.’
[See Iqbal, 129 S. Ct. at 1947–49.]
Section 1983 creates
liability only for a defendant's personal acts or decisions.”)
30
Petitioner’s claim rests squarely on the continued
viability of pre-Iqbal supervisory liability, as though Iqbal
were never decided.
But this Court cannot similarly ignore the
impact of its own recent precedent.
Because the record shows no
evidence that Lanister’s own misconduct caused a deprivation of
Petitioner’s rights, her claim and appeal lack merit.
B. Even if supervisory liability remains a plausible theory
in some limited circumstances, Petitioner’s claim against
Respondent Lanister cannot meet the heightened standards
and personal involvement threshold that Iqbal requires
for suits against government officials.
If Iqbal allowed some limited notion of supervisory
liability to survive, it at least barred suits against
government officials lacking any personal involvement in the
injury underlying the claim.
It can hardly be doubted that
Iqbal changed the legal analysis in this area, narrowing
potential theories of liability.
See, e.g., Dodds v.
Richardson, 614 F.3d 1185, 1200 (10th Cir. 2010) (“Iqbal may
very well have abrogated § 1983 supervisory liability as we
previously understood it in this circuit.”); Maldonado v.
Fontanes, 568 F.3d 263, 274 n.7 (1st Cir. 2009) (questioning the
validity of circuit precedents on § 1983 liability standards in
light of Iqbal).
But whatever space may exist for importing old
legal theories or developing new ones, Petitioner’s claim
against Lanister cannot succeed under any standard for § 1983
liability consistent with Iqbal and past precedents.
31
1.
Lanister did not purposely intend or knowingly
accede to any violation of Petitioner’s Fourth
Amendment rights.
Lanister did not have a purposeful or even a knowing state
of mind with respect to the constitutional violation Petitioner
claims she suffered.
The Iqbal Court required the § 1983
plaintiff to show that government officials purposely intended a
policy to deprive him of his of constitutional rights.
S. Ct. 129 at 1949.
Iqbal,
While that determination of requisite
mental state was concededly made in a particular factual and
procedural setting, the Court hinted that its logic applies
elsewhere by asserting that “the same holds true for an official
charged with violations arising from his or her superintendent
responsibilities.”
Id.
Requiring other § 1983 plaintiffs to
show purposeful rights-deprivation, as Iqbal had to, is the
surest way to fully exclude meritless vicarious claims and limit
suits to those premised clearly on direct liability.
Nothing in the record suggests that Lanister purposely
intended to deprive Petitioner of her Fourth Amendment rights,
or even that he possessed actual knowledge that such injury
would result from his subordinates’ conduct.
[R. 5-8]
Moreover, Petitioner has ignored Iqbal’s emphasis on a
government official’s unlawful purpose, arguing instead for
lesser standards without foundation in recent precedent.
A so-
called “parallel mens rea test,” requiring a supervisor to have
32
only the same mental state as that required for the underlying
constitutional violation, is patently unworkable in a Fourth
Amendment claim such as Petitioner’s where the mens rea for an
illegal seizure is merely objective unreasonableness.
Graham v. Connor, 490 U.S. 386, 397 (1989).
See
In such a case the
supervisor would possess no culpability at all, and any
liability would necessarily be vicarious, in contravention of
this Court’s longstanding rule.
Petitioner has thus failed to establish Lanister’s
requisite mental state under either Iqbal’s purpose standard or
the lesser standard of actual knowledge.
2.
The pre-Iqbal “deliberate indifference” standard
for failure to train cases is a necessary but not
sufficient condition for establishing a valid
claim against a supervisor for failure to train
subordinates.
Because Iqbal did not address the failure to train issue,
Petitioner still bears the burden of at least satisfying the
customary test for failure to train claims, though that alone
may not necessarily be enough.
In cases where plaintiffs sue
government supervisors for failure to properly train their
subordinate officers, this Court held in City of Canton v.
Harris that the requisite standard was deliberate indifference
to the rights of affected individuals.
(1989).
489 U.S. 378, 388-89
At minimum, plaintiffs needed to show that inadequate
training amounted to a deliberate policy choice, and that it was
33
closely related to the ultimate injury which could have been
avoided had officers received more or better training.
Id. at
389-91.
But City of Canton did not merely set up a difficult test
for § 1983 plaintiffs suing for failure to train: it clearly
stated that anything short of that test would be an improper
expansion of the statutory cause of action.
Id. at 391 (“To
adopt lesser standards of fault and causation would open
municipalities to unprecedented liability under § 1983.”).
Even
then, the Court worried that allowing such suits to go forward
under any more lenient standard “would result in de facto
respondeat superior liability.”
Id. at 392.
That result would
be unacceptable, so a showing of deliberate indifference must be
considered an absolute minimum in failure to train claims.
But because this Court’s cases since Monell have
consistently adhered to the principle that a government policy
must itself cause the constitutional violation at issue to give
rise to § 1983 liability, the question of whether inaction or
nonfeasance can amount to an official policy remains a difficult
and important one.
Since Iqbal, the Court has only had
occasion to consider one such case.
In Connick v. Thompson, a
former state prisoner sued the local district attorney, alleging
that the DA’s failure to adequately train his prosecutors in
disclosing exculpatory evidence led to a flawed conviction and
34
prison sentence.
131 S. Ct. 1350, 1355 (2011).
The § 1983
claim was held deficient in this context, as the plaintiff did
not show the DA’s notice of, and therefore deliberate
indifference to, a need for more or different training.
1358.
Id. at
In other words, Thompson could not meet the basic City of
Canton standard for a failure to train claim of supervisory
liability, and his claim was therefore easily dismissed.
But it simply does not follow that Thompson’s claim would
necessarily have been sufficient to hold DA Connick liable as a
supervisor if he had shown actual or constructive notice, and
thus satisfied the City of Canton test.
See Farmer v. Brennan,
511 U.S. 825, 841 (1994) (clarifying the objective nature of the
deliberate indifference standard).
By dismissing Thompson’s
claim under a rigorous City of Canton analysis, the Court never
had to apply Iqbal, which it otherwise surely would have had to.
See Dodds, 614 F.3d at 1198-99 (“[B]ecause our cases since Iqbal
have thus far only presented allegations that do not satisfy our
pre-Iqbal liability standard, we have not yet had occasion to
determine what allegations of personal involvement and mental
state do meet Iqbal’s stricter liability standard.”).
The Connick Court’s open and general skepticism of § 1983
suits resting on fragile claims of nonfeasance by government
officials is manifest.
Put simply, “culpability for a
deprivation of rights is at its most tenuous where a claim turns
35
on a failure to train.”
Connick, 131 S. Ct. at 1359.
The City
of Canton test is undoubtedly a threshold requirement, but it is
not enough on its own to sustain a post-Iqbal § 1983 claim for
failure to train.
3.
Lanister’s failure to train West Rose police
officers with respect to particular Fourth
Amendment procedures did not rise to the level of
deliberate indifference.
Petitioner’s claim against Lanister for failure to train
his subordinates lacks the conditions necessary to establish
deliberate indifference.
The Connick Court emphasized that in
failure to train cases, it is ordinarily necessary to establish
a pattern of similar violations in order to show supervisors’
“‘conscious disregard for the consequences of their action.’”
Id. at 1360 (quoting Bd. Of Cnty Comm’rs v. Brown, 520 U.S. 397,
407 (1997)).
Otherwise, an isolated violation without a
preexisting pattern can almost never adequately demonstrate the
deliberate indifference required to trigger § 1983 liability.
Id.
In very limited circumstances, a single violation might
suffice, but only when the deprivation of rights which results
is “highly predictable” or “obvious.”
Id. at 1361 (citing
Brown, 520 U.S. at 409; City of Canton, 489 U.S. at 390).
While Lanister did know that protesters sometimes tried to
record police officers in his department and his officers might
sometimes delete their recordings, there is no clear evidence of
36
an actual pattern of Fourth Amendment violations.
[R. 7]
Without such a pattern, Petitioner would be hard-pressed to show
that the single violation she endured was “highly predictable”
or “obvious.”
Moreover, Lanister did not accept this possible
outcome (which was no official policy) out of apathy.
He
accepted it out of concern for his officers’ safety, which the
Albers District Attorney expressly told Lanister was a
legitimate justification recognized by the Fourth Amendment.
Id. at 8.
Though Lanister might have trained his officers never
to seize data from phones when baited by protesters, his failure
to do so did not constitute deliberate indifference.
4.
Even if he were deliberately indifferent,
Lanister had insufficient personal involvement
under Iqbal to be liable for a violation of
Petitioner’s rights.
All else aside, Petitioner’s claim against Lanister fails
to allege the requisite elements of personal involvement and
misconduct that Iqbal requires as a basis for liability.
129 S. Ct. at 1947-49.
scene of the arrest.
Iqbal,
Lanister was not even present at the
[R. 7]
There is no evidence he knew
anything about it until after the fact.
Lanister did not
specifically instruct the officers what to do in this scenario,
and they carried out no official policy of his or the City’s
when they took and deleted Petitioner’s recording.
Id.
In
fact, Lanister had no personal connection to this particular
37
rights violation whatsoever, other than expressing a view later
that sometimes officers should do as Moremont and Targaryan did.
Id.
Under Iqbal, this alone cannot possibly be enough to show
that a government official has caused injury by his or her own
misconduct.
Therefore Petitioner’s claim, no matter what rights
she may in fact have been deprived of, is insufficient to expose
Lanister to liability.
C.
Rejecting liability on the basis of a police chief’s
status as a supervising officer comports with
considerations of government efficiency, effective law
enforcement, judicial restraint, and federalism.
Imposing liability on Lanister as a supervisor for failing
to adequately train his subordinate officers would be
inconsistent with key policies underlying this Court’s
historical conception of liability under § 1983.
Though § 1983 serves the important purpose of protecting
individuals from unconstitutional state action, there is also
the danger of overburdening, over-deterring, and ultimately
paralyzing local law enforcement with the threat of liability.
For these reasons, the Court has expressed reluctance to “engage
the federal courts in an endless exercise of second-guessing
municipal employee-training programs.”
City of Canton, 489 U.S.
at 392.
This Court has therefore interpreted § 1983’s “causes to be
subjected” language as an important limitation on who exactly
38
may be held liable for violations of individuals’ rights.
Even
more so than the longstanding general concern of supervisory
liability’s lapsing into respondeat superior, failure to train
claims hold the starkest danger that liability can be proved
only indirectly, and hence invalidly.
See id.; Connick, 131 S.
Ct. at 1359.
For the foregoing reasons, this Court should AFFIRM the
Court of Appeals’s holding that Lanister’s lack of personal
misconduct precludes a finding of supervisory liability.
39
CONCLUSION
For all of the foregoing reasons, Respondents respectfully
requests that this Honorable Court AFFIRM the judgment of the
Court of Appeals.
Respectfully Submitted,
Bear Moremont, Adam Targaryan, Ty Lanister, and
City of West Rose
By their attorneys
40