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Blog comments do not reflect the views or opinions of the Author or Ancel Glink. Some of the content may be considered attorney advertising material under the applicable rules of certain states. Prior results do not guarantee a similar outcome. Please read our full disclaimer

Thursday, August 25, 2022

Court Declines to Find City Liable for Police Officer Off-Duty Activities

The Seventh Circuit Court of Appeals recently issued a decision in Bohanon v. City of Indianapolis rejecting a claim that a "gap" in a city policy constituted municipal action to establish city liability for police officer off-duty activities.

On August 7, 2013, two off-duty officers in plain clothes were drinking at a bar when another bar patron became loud and combative with bar employees and refused to leave when asked. The off-duty police officers identified themselves as police officers and told the patron to leave. The patron subsequently threw one of the officer’s badges to the ground. According to the court opinion, the officers then punched the patron, dragged him out of the bar, and kicked him until he was unconscious. The patron filed suit against the officers and the city alleging civil rights violations. Although the jury ruled in favor of the patron and awarded damages, the judge granted the city's motion for judgment as a matter of law, reversing the damages award. The patron appealed to the Seventh Circuit Court of Appeals.

On appeal, the bar patron argued that a "gap" in a city police department policy was sufficient to establish city liability for the actions of its off-duty police officers. The city policy prohibited off-duty police officers under the influence of drugs or alcohol from taking any police action except under a narrow exception to protect life and limb in emergency situations. The Seventh Circuit disagreed with the patron, finding that a gap in policy amounts to municipal action only if the municipality has notice that its policy will cause constitutional violations. Here, the Court found no evidence that similar incidents had occurred. The Court also found that it was not obvious that the city policy prohibiting police action while under the influence subject to a narrow and specific exception would lead off-duty officers to use excessive force in violation of the Constitution. Finally, the court determined that the city policy did not cause constitutional violations; instead, the officers violated the policy through their actions, which caused the patron's injuries.


Post Authored by Katie Nagy & Julie Tappendorf, Ancel Glink

Wednesday, August 24, 2022

Appeals Court Decides Challenge to Short Term Rental Ordinance

Short-term rental (STR) uses have been a topic of discussion among local government officials with the popularity of individuals listing their homes for short term stays on platforms such as Airbnb and VRBO. This week, the Fifth Circuit Court of Appeals (which has appellate jurisdiction over federal cases out of Texas, Louisiana, and Mississippi) invalidating New Orleans’s STR ordinance. Hignell-Stark, et al. v. City of New Orleans.

New Orleans created a licensing regime for STR uses in 2017, allowing property owners to apply for a license to rent their property for a period shorter than 30 days. The initial City code provisions made clear that an STR license was a privilege, not a right, and that the City exercised broad discretion to issue or withhold licenses. 

After receiving complaints from neighbors that short-term rentals were creating nuisances in residential neighborhoods, affecting neighborhood character, and increasing housing costs, the City revised its licensing program in 2019. These changes restricted STR licenses to the owner’s “primary residence.” The new ordinances also placed substantial limitations on advertising STRs.

A group of property owners challenged the new licensing scheme as unconstitutional under three theories: (1) the failure to renew their STR licenses was an impermissible “taking” under the Fifth Amendment; (2) the residency requirement violated the dormant Commerce Clause of the U.S. Constitution; and (3) the advertising restrictions violated the First Amendment.

The case made its way to the Fifth Circuit. First, the Court found in favor of the City on the owner's takings claims under the Fifth Amendment. Because an STR licenses was not a property "right," the Court held that the City’s refusal to renew a license did not violate a property right. The Court clarified that, while custom and practice may create property interests, STR licenses were not so deeply rooted in custom that the property owners were owed compensation when their renewal applications were denied. The recent creation of an STR licensing program in the City prevented the Court from concluding that the license holders had property interests in the renewal of their licenses.

Second, the Fifth Circuit ruled in favor of the owners on their dormant Commerce Clause claim. Under the dormant Commerce Clause, states and local governments may not discriminate against nor impose undue burdens on interstate commerce. The Court held that the residency requirement for STR licenses was discriminatory on its face because out-of-state property owners without a “primary residence” in the City were forbidden from participating in the STR market in residential areas. The City failed to show that the residency restriction was the only policy alternative for promoting its valid interests in reducing nuisances, retaining neighborhood character, and promoting affordable housing. Therefore, the City failed to show that the discriminatory residential requirement was constitutional.

Finally, the Court found it had no authority to decide the First Amendment claim. The district court had found that the Free Speech claim was “viable,” but had not yet issued a formal judgment granting or denying the property owners’ claims so the appeal was premature. 

This case provides a helpful overview of several constitutional issues that are implicated by the growing popularity of short-term rentals (and local government responses). While the Fifth Circuit does not have direct authority over Illinois cases, this decision provides more insight as to how higher courts may review STR regulations going forward.

Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

Thursday, August 18, 2022

PD Properly Used Ongoing Criminal Investigation Exemption to Partially Deny FOIA Request

A reporter submitted a FOIA request to a police department (PD) seeking certain records relating to a 2018 homicide. In response, the PD disclosed certain redacted records but withheld other records, on the basis that release of certain exempt records would obstruct the PD’s ongoing criminal investigation into the homicide. The reporter then sued the PD claiming the response violated FOIA. The trial court ruled in favor of the PD, finding that it had demonstrated that disclosing the records it had withheld would interfere with its ongoing investigation. 

On appeal, the Appellate Court in Ballew v. Chicago Police Department upheld the ruling in favor of the PD, finding that the PD had properly demonstrated that the records were exempt under FOIA’s ongoing investigation exemption. The Appellate Court relied on an affidavit of a PD lieutenant who was overseeing the homicide investigation that stated that because the PD's investigation of the homicide was still open and ongoing, prematurely releasing the withheld records would materially impede that investigation because:

  1. investigators were still attempting to identify additional witnesses, collect additional evidence, and apprehend the suspect, who is at large;
  2. premature release would make it difficult to determine the veracity of witness statements because the significant media attention coverage brought to the case could increase the possibility of obstructive behavior that would misguide investigative efforts;
  3. the outcome of the investigation could be jeopardized if details of the investigation, investigative technique, and evidence were to be released; and
  4. releasing the information could place witnesses in danger or deter witness cooperation since the homicide underlying the FOIA request is potentially linked with another (unsolved) violent homicide.

The Appellate Court also rejected the reporter’s argument that the PD had used FOIA’s law enforcement exemptions to assert a “blanket” exemption over investigative records, explaining that nothing in the record supports any claim that the PD refused to review all responsive records before asserting the applicable exemptions over the withheld records. Instead, the Court found that the PD had produced the original case incident report and provided a detailed explanation in the affidavit as to why other responsive documents were exempt. The Court also rejected the reporter’s argument that FOIA required the PD to provide a granular document-by-document explanation regarding its claimed exemptions.

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, August 16, 2022

Court Finds In Favor of Board of Education in FOIA Challenge

In 2014, a former teacher, filed a pro se lawsuit against a Board of Education (Board), alleging various FOIA violations related to the former teacher's 30 FOIA requests, including that the Board withheld responsive documents and the Board failed to conduct a reasonably diligent search for records. The circuit court ruled in favor of the Board, finding it had properly responded to all 30 of the FOIA requests, provided nonexempt responsive records in its possession and custody, and did not deliberately withheld documents pertaining to the requester's requests.

On appeal, the Appellate Court in Elmore v. Bd. of Educ. upheld the circuit court’s ruling in favor of the Board. Specifically, the Appellate Court found that the former teacher failed to show that the Board’s search for responsive records to her requests was inadequate or that the Board cited improper exemptions to withhold certain records. The Appellate Court further found that the former teacher failed to prove that the Board withheld certain requested records in their entirety, finding that the Board’s affidavits and other evidence satisfied the Board’s burden to show that it produced responsive nonexempt records in its possession and custody. The Appellate Court also stated that the teacher's belief that a certain document must exist did not make it so.

Additionally, the Appellate Court determined that the Board properly withheld information about the racial breakdown of all Board hires from 2011 to 2013 pursuant to the personal privacy exemption of FOIA (section 7(1)(c)). Specifically, the affidavit from the Board’s FOIA officer demonstrated that the the requested group of new hires was so small (6 employees) that disclosing a summary of ethnicities would unavoidably lead to identifying individual employees, and releasing this information would, therefore, unreasonably invade the privacy interests of those employees. The Appellate Court noted that public employees have a reasonable expectation that their racial identification will remain private, and with such a small number of people involved, releasing only ethnicities could still lead to identifying individual employees, so this part of the plaintiff’s FOIA request was properly denied under the invasion of personal privacy exemption.

Post Authored by Eugene Bolotnikov, Ancel Glink

Thursday, August 11, 2022

Court Upholds Redaction of Requester's Own Private Information Under FOIA

An inmate filed a FOIA request to a City seeking certain records pertaining to the inmate. The City provided the requested records but redacted the inmate’s private and personal information, including the inmate’s home address, home telephone number, date of birth, and his mother’s name, home address, and home telephone number, pursuant to FOIA exemptions 7(1)(b)(private information) and 7(1)(c)(disclosure would be an unreasonable invasion of personal privacy). 

The inmate then filed a request for review with the Public Access Counselor of the Attorney General's office (PAC) claiming the City’s redactions were improper. The PAC determined that no further inquiry was warranted and closed the file. The inmate next filed a pro se complaint in circuit court, alleging, among other things, that the City violated FOIA by improperly redacting records containing his private and personal information, because the inmate had impliedly consented to the disclosure of his own private and personal so the information was not exempt from disclosure under FOIA. The court dismissed the inmate’s complaint, finding that the records were properly redacted, and the inmate’s argument regarding his entitlement to his own exempt information was “not listed within the statute or any other relevant authority.”

The inmate appealed and the dismissal of the case was upheld by the Appellate Court in Warren v. City of Urbana. Specifically, the Appellate Court rejected the inmate’s argument that by submitting a written FOIA request for his own information, including his home addresses and “locations of incidents”, that the inmate consented to and was entitled to disclosure of otherwise exempt information. The Court noted that the General Assembly specifically included home addresses as “private” information under section 7(1)(b), and the only exception to this exemption is where “disclosure is required by another provision of this Act, a State or federal law, or a court order.” Because the inmate failed to identify any statute or court order which required the City to disclose his private information, the Court determined that the City's redaction of the inmate’s private information was proper.

Post Authored by Eugene Bolotnikov, Ancel Glink

Monday, August 8, 2022

Court Rejects First Amendment Claim Involving Persons' Failure to Provide ID

On August 2, 2022, the Seventh Circuit Court of Appeals issued an opinion finding no First Amendment violation where three individuals failed to provide their ID to a police officer where there was probable cause to arrest them. Lyberger v. Snider

Three individuals followed a woman in her vehicle to her home. Once she arrived, the three individuals confronted and video-recorded the woman while she was parked in her driveway. She called 911 and when police arrived, they asked the three individuals for their identification, which they continuously refused.  The officer then placed them under arrest for disorderly conduct and obstruction. All charges were eventually dismissed. 

The plaintiffs then sued the City and police officers claiming various civil rights violations. The Seventh Circuit first analyzed the plaintiffs’ Fourth Amendment claim and concluded that the police officers had reasonable suspicion to justify the initial detention as well as probable cause to arrest the three individuals. 

The court then went on to analyze the plaintiffs’ First Amendment claim. The plaintiffs argued that the police officers violated their First Amendment rights by arresting them in retaliation for refusing to provide their ID cards per the police officers’ requests. The Seventh Circuit concluded the plaintiffs did not have a First Amendment right to withhold their identification. Although, the First Amendment generally prohibits police officers from subjecting individuals to retaliatory actions for engaging in protected speech, the Seventh Circuit held that probable cause to make an arrest (which was present in this case) defeated their claim that the arrest was in retaliation for protected speech.  As a result, the plaintiffs’ claim that their First Amendment rights were violated also failed.

Authored by Molly Anne Krebs & Julie Tappendorf, Ancel Glink.

Monday, August 1, 2022

PAC Says Resumes of Candidates for Elected Office Are Releaseable Under FOIA

The Public Access Counselor of the Illinois Attorney General's office (PAC) just issued its 11th binding opinion of 2022 finding a public body in violation of FOIA for failing to provide copies of the applications submitted by candidates for appointment to fill a vacant elected office. PAC Op. 22-011,

In April, an individual filed a FOIA request with a village seeking the names and applications of the candidates for a vacancy to the village board. The village denied the request, citing three FOIA exemptions including that the applications were exempt from release as private information, that release of the information would be an invasion of personal privacy of the candidates, and that the documents contained information that expresses policy or opinions. The village also argued that the records were not public records because the village president had not shared the applications with the village board. Ultimately, the village did release the application for the candidate who had been appointed to fill the vacancy but continued to withhold the applications submitted by the other candidates. The requester filed a request for review with the PAC.

The PAC rejected the village's argument that the unsuccessful candidates' applications were either (1) not public records or (2) exempt from release. First, the PAC found that the records were public records since they were in the possession of the village president and were used by the president in deciding who to appoint to fill the vacancy on the villagea board. Second, the PAC determined that the public's right to access information about candidates for elected office (and those considered for appointment to fill an elected office) outweighs any diminished right of privacy the candidates might have to their potential appointment to the village board. The PAC distinguished the privacy interests of candidates for elected office (who have a diminished right to privacy) with unsuccessful candidates for public employment (who have a privacy interest in not having their candidacy disclosed to the public because of the potential negative impacts in the community and with their current employment). Finally, the PAC rejected the village's argument that the records were used to "formulate policy" finding that the work history and educational background of the candidates for appointment to elected office are purely factual in nature. 

In short, the PAC determined that the resumes and other information about candidates for elected office (or appointment to fill a vacancy in an elected position) are releasable under FOIA.