Free Speech

Government's Seeking to Force Landlord to Evict You Because of Your Threatened Lawsuit Against Police

would clearly violate the Constitution, and so would giving a ticket to your lover because of the romantic relationship.

|The Volokh Conspiracy |

From Jennifer B. v. Trafford Borough, decided yesterday by Judge Mark R. Hornak (W.D. Pa.); note that this simply holds that such behavior would be unconstitutional as a matter of law—it doesn't conclude that it took place as a matter of fact (there may need to be a trial for that):

This is a civil rights action brought to recover monetary relief for alleged constitutional violations by a local municipality (Trafford Borough) and several of its officials, namely a police officer (Holmes), the Chief of Police (Disso), and Trafford's municipal Code Enforcement Officer (Hlad) (collectively "the Defendants").

The Plaintiffs allege that the Defendants caused the unjustified removal of two minor children from the home of the Plaintiff mother (Jennifer B.) under false pretenses—namely that the police were instructed to remove the children by Children and Youth Services. They also allege that the Defendants sought to force Jennifer B.'s father to evict her from the residence she leased from him, and to cause him to be fined if he did not do so, in retaliation for the Plaintiff/mother's threat of legal action against the police officers for the removal of her children.

Plaintiff Timothy Sanchez—who Plaintiffs allege is in a romantic relationship with Plaintiff Jennifer B.—also claims he is a victim of unconstitutional retaliation for his association with Plaintiff Jennifer B, alleging that, without evidence or probable cause, the Defendant police officers cited him for operating a motor vehicle without a license because of that romantic relationship….

The Defendants next ask that this Court dismiss the claims at Counts IV and V as against Hlad, Disso and Trafford. Jennifer B. pleads that Hlad and Disso retaliated against her in terms of allegedly telling her father that he would be fined if he did not throw Jennifer B. out of her residence (which the father owned) after Jennifer B. said that she planned on suing the involved police officers for removing her children from her home. The Complaint pleads that as a consequence of that conduct by those Defendants, the father/landlord has taken legal action against Jennifer B. in order to evict her from the property.

These Defendants acknowledge that such a claim of First Amendment retaliation is recognized in the law, and requires that the Plaintiff have engaged in constitutionally protected conduct, that the alleged retaliation that was threatened would deter a person of ordinary firmness for exercising their constitutional rights, and that there was some causal link between those two things. These Defendants say that the alleged actions of the police officers should be classified as de minimis and should be treated as akin to criticisms or reprimands which would not support such a claim.

The allegations that the police and Code Enforcement Officer, acting under the color of state law, threatened to impose a fine on Jennifer B.'s father/landlord if he did not evict her, which allegedly led to him beginning the legal proceedings to do just that, all because she threatened to sue the police officers could easily be found by a jury to deter not only a person of "ordinary firmness" from exercising a right protected by the First Amendment (to access the courts and bring a lawsuit), but in the Court's judgment could be found to deter a person of even special toughness.

The Plaintiffs' allegation that, as a direct and proximate consequence of the Defendants' threats, the landlord (Jennifer B.'s father) has begun the process of taking legal action to evict Plaintiff Jennifer B. especially counsels in favor of this conclusion. That is a tangible and substantial consequence triggered by the alleged threats of the police officers. The claims alleged against the individual Defendants at Count IV more than "show" a plausible claim for relief, and will not be dismissed, at least not at this stage of the case….

Lastly, the Defendants move to dismiss Plaintiff Sanchez's claim of unconstitutional retaliation (Count III) based on qualified immunity. Sanchez asserts that he was punished by the Trafford Police by being cited for driving without a license, without any factual or legal basis, just because he was in a romantic relationship with Jennifer B. The Defendants say that such does not state a valid claim of a constitutional violation, but even if it did, the police officers here would not be subject to liability for money damages by virtue of the doctrine of qualified immunity.

Qualified immunity shields governmental actors from money damages liability unless they have violated a federal constitutional or statutory right, and when they did so, the unlawfulness of their conduct was clearly established or they were plainly incompetent…. [T]he First and Fourteenth Amendments protect the ability of any individual to closely associate with another person of their choosing, including in a consensual romantic or intimate relationship, even one that is outside of marriage.

It would appear to the Court that for quite some time now, the right to associate with others, and in particular to associate for purposes of what could be fairly described as a consensual intimate or "romantic" relationship, has been clearly established such that every law enforcement officer would know that. Lawrence, decided in 2003, would seem to plainly and "clearly" stand for the proposition that criminal sanctions cannot be exacted against a person because they engage in such a relationship, particularly the most intimate of relationships. See Christensen v. Cnty. of Boone, IL, 483 F.3d 454, 463 (7th Cir. 2007) (citing Lawrence) (intimate relationship between non-married consenting adults is form of intimate association protected by the Constitution); Anderson v. City of LaVergne, 371 F.3d 879, 881–82 (6th Cir. 2004) (same)….

[T]he Defendants [also] acknowledge that it is well-settled that government officials cannot subject a person to adverse governmental actions because the person engages in conduct protected by the First Amendment. These are not new or "murky" principles of law, but ones coming from clear and direct announcements in Supreme Court and Courts of Appeals cases.

Here, the Complaint expressly pleads that Defendant Holmes charged Sanchez with a motor vehicle code violation, without probable cause, in order to retaliate against Sanchez for Sanchez's "romantic" association with Jennifer B., an association facially protected by the First and Fourteenth Amendments. The Complaint therefore appears to squarely fit the pleading bill laid out in Nieves—Constitutionally protected conduct (the romantic relationship), retaliatory action (the motor vehicle code charges), the lack of probable cause to support those charges, and the direct causal relationship between the fact of the relationship and the charges. So, the Complaint "shows" a claim for relief under the applicable law.

The Court also concludes that the above referenced Supreme Court and Circuit court decisions plainly and unequivocally identify the protected rights and the allegedly unconstitutional conduct in the context of the violations pleaded here with sufficient precision to defeat a claim of qualified immunity. Based on those cases, the Court concludes that every police officer, perhaps even the "plainly incompetent," would have known that he could not bring an adverse criminal or otherwise punitive charge against an adult based on the fact of that adult having an otherwise lawful consensual romantic or intimate relationship with another adult. The Court concludes that existing precedent from the Supreme Court would have placed that question beyond debate….

NEXT: A Night of Aimlessness, Surrounded by Flames: Dispatch From Portland

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. See how the government muscle of USSA works against the Constitution….the ruling elite want to make you run to federal court every time the muscle bursts through your front door. Stalin would be proud.

    1. Stalin was a big fan of people running to federal court.

      1. Stalin was a big fan of letting people get abused and even killed while clinging to the delusion that all would be well “If only Comrade Stalin knew!”

        The elites are a big fan of letting people get abused and even killed while clinging to the delusion that all would be well “If only the Federal Courts knew!”

        1. Sorry, I just can’t take seriously anyone who thinks Stalin is analogous to our current state of affairs. We need an equivalent of Godwin’s law for those who want to compare anything the left does to communism.

  2. As I read thru the summary of the facts, this was very hard to read. I wanted a scorecard, with the numbers and positions of the players. Especially complicated by the fact that her father had (under pressure) filed the eviction action, so on the face it’s unclear whose side he is on.
    IANAL, I just pretend to be a scholar of language. My impression is that while the legal matter may be pretty clear, and that the facts of the case don’t support a claim for Qualified Immunity. But, on appeal, the presiding judge should be sent back to writing class. The account of the facts is word salad.

  3. The complaint alleges that the plaintiff’s father is in the process of evicting her, and the police baselessly forced him to do so.

    If I were a finder of fact in this case, I would definitely want to hear from the father why he is proceeding with eviction proceedings rather than joining the daughter’s lawsuit. I would wnat to hear if he says the situation isn’t as the daughter is alleging it is.

    1. Of course the facts are important. But the defendant is filing a motion to dismiss whose premise is, EVEN IF the facts are true, there would be no claim. So, for the purpose of ruling on the defendants motion, the facts are presumed to be true.

      One can file a different sort of motion, namely, a motion for summary judgment if, after discovery, there is insufficient evidence to establish the allegations.

      1. Hence the preface “ if I were a finder of fact in this case…”

    2. re: “why [the father] is proceeding with eviction proceedings rather than joining the daughter’s lawsuit”

      Because he fears even greater retaliation from the city?
      Because he couldn’t afford the lawyer fees?
      Because he can’t afford to take the financial risk of losing?
      Because he has religious convictions against involving courts? (a Quaker, maybe?)
      Because he’s doing something unrelated but illegal and can’t afford to have the police digging into his business?
      Because he’s a coward?
      Because he doesn’t really like his daughter and is happy for the excuse?

      Who knows. More to the point, how is the father/landlord’s mental state relevant in the slightest to either the daughter’s or the city’s claims?

      Granted, I too am curious on that point – but satisfying curiosity is not one of the generally accepted objectives of a justice system.

      1. Because he knows that the city inspector can find no end of expensive problems with the building.

  4. This is a ruling on a motion to dismiss certain allegations. It seems the facts have not been developed for a motion to dismiss except to the claim of by police of qualified immunity.

  5. While I have heard and seen clear abuse of power by officers, I’ve seen even more absurd claims by people to mask their own crimes.

    Some of these things just ring false. How can you have a false ticket of driving without a license? That would be ludicrously easy to prove wrong, so no officer would write it if it wasn’t true.

    Then, you would think a father would support getting his daughter and attempt to get his grandkids back via a joint suit.

    The fact that the father appears to be on the state’s side, not the daughters, is unusual. I see three possibilities
    1: Dad doesn’t care about the family
    2: The state is using threats/access to the grandkids as leverage
    3: The woman is so bad that even her own family has turned against her. Abuse of grandkids is something that can do that.

    I’m not going to knee-jerk support anyone. The judge made the right call in saying that we have to evaluate facts, but I have a strong suspicion that it’s going to be dismissed on summary judgement.

    1. This lawsuit also struck me as very suspicious.

    2. How can you have a false ticket of driving without a license?

      Pennsylvania doesn’t have a state-wide requirement that police wear body cams. If the municipality that the police officer works for doesn’t use them, then all the police office has to do is to pull the driver over and write out a ticket saying that he asked the driver to produce a license and the driver failed to do so. It comes down to the word of the police officer vs. the word of the driver, and I imagine that in cases like that the traffic court judge is inclined to believe the police officer.

  6. How can you have a false ticket of driving without a license?
    —————————————
    Super easy to do. Law Enforcement waits til you go into your car to grab an item, then come and ticket you because you don’t have your license on you, or you don’t have a license but were not driving.
    Whether law enforcement took children without a court order would be what to look at. If they did that, then pretty much anything else is feasible.

Please to post comments

Comments are closed.