The Volokh Conspiracy
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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….