Courts Allows Retaliation Claim over Town’s Removal of Pro-Fracking Signs to Proceed

Plaintiff brought a §1983 claim against the Town of Tusten and the Town’s Code Enforcement Officer alleging a violation of his First and Fourteenth Amendment rights after the Town sent a letter instructing him to remove the pro-fracking sign posted on his garage. Specifically, the plaintiff alleged that the defendants: (1) selectively enforced the Sign Ordinance against him in violation of the Equal Protection Clause, (2) enforced the Sign Ordinance in retaliation for exercising his First Amendment righs, and (3) discriminated against him on the basis of the viewpoint he expressed on fracking. The Town quickly made a motion to dismiss while the Code Enforcement Officer asserted qualified immunity, both of which were dismissed by the District Court for the Southern District of New York.

Examining the plaintiff’s claims, the Court found the plaintiff did have a constitutional right to advocate for a controversial viewpoint on political topics, as well as a right to publicly criticize Town officials. It then ruled that for purposes of a motion to dismiss, evidence that discrimination could have been a “motivating factor” was sufficient to defeat the motion. Paired with two citations for violating the Sign Ordinance as evidence of a “chilling effect” on speech, the Court held that the plaintiffs claim could proceed.

Finally, the Code Enforcement Officer was not entitled to qualified immunity because qualified immunity is conditioned upon objectively reasonable conduct, a standard which may or may not be met based upon whether retaliation was found to have played a substantial part in the Officer’s actions. 

The case was Lang v Town of Tusten, 2015 WL 5460110 (S.D.N.Y.)

Bringing a §1983 Suit Against a Municipality: The Monell Claim, Part 3

In many ways, Monell is a critical case for both plaintiffs and defendants. For plaintiffs, Monell provides a roadmap for establishing municipal liability, with subsequent case law spelling out the exact methods which would establish a “practice or custom.” Whether such liability is ultimately established can make or break cases in which the municipality is the primary source of funds for any eventual damages (a description which applies to many §1983 cases). This is particularly true in high-value cases, such as class action suits, when the damages sought far exceed what an individual as defendant could pay.

For defendants, Monell provides three further elements of the plaintiff’s pleadings which can be attacked as insufficient. Defendants can argue the absence of a constitutional violation, that the official was acting not in an official but personal capacity, and they can argue that the pleadings are insufficient to show a municipal “policy or custom” under the theories discussed in Part 1 of this series. Any of these could be grounds for dismissal, and the need to show all three elements for each claim puts pressure on the plaintiff’s counsel to have a particularly well-plead complaint. It also helps to shift liability away from officials and on to the municipality, the benefit of which depends entirely on who is being represented.

To sum up, if you plan to bring a §1983 case against a municipality, or are defending a municipality in such a case, having a familiarity with Monell will be indispensable to your success or failure. 

Once again, the case is Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978).

Bringing a §1983 Suit Against a Municipality: The Monell Claim, Part 2

Our last post introduced the Monell claim and the requirements it provides for establishing municipal liability in a §1983 suit. Today’s post will focus on one of the drawbacks, or limitations, of this type of claim for plaintiffs, namely the ability of government officials who are named defendants to be dismissed from the suit on the grounds their inclusion in duplicative. 

Traditional theories of employer’s vicarious liability do not apply to municipalities; rather suits against municipal officials acting in their official capacity are treated as suits against the municipality itself in all but name. Monell, 436 U.S. at 690 n. 5. In cases where both an official sued his official capacity and the employer municipality are named as defendants, courts regularly dismiss the official capacity defendants’ inclusion as duplicative. See generally, Castanza v. Town of Brookhaven, 700 F.Supp.2d 277, 284 (E.D.N.Y. 2010) (granting summary judgment to dismiss claims against defendants in their official capacity as duplicative of the claims against the Town). This leaves only the municipality as a defendant, for whom Monell is the appropriate standard for determining liability. See Monell, 436 U.S. at 694 (imposing liability for official’s execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy.”).

The defendant officials are still relevant to the case, as their actions relative to official policy will be the lens through which liability is viewed, but they will likely not remain parties to the suit. This likely has raised the question for many people of “why not sue the officials in their personal capacity as well?” The answer is officials will usually be shielded from personal liability by some form of immunity, whether qualified or absolute (ex: judicial, prosecutorial). Thus such claims often prove futile, and plaintiffs decide they are better served by suing the municipality itself, especially as that will be the source of any damages they can establish.

Again, the case is Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978).

Bringing a §1983 Suit Against a Municipality: The Monell Claim, Part 1

Bringing a §1983 claim against a municipality requires the plaintiff show the existence of a very specific set of circumstances. These circumstances are outlined in the 1978 case Monell v. Department of Social Services of City of New York, 436 U.S. 658 (thus the eponymous “Monell claim”). Specifically, to bring a successful claim under Monell the plaintiff must show (1) the violation of a constitutional right (2) by an official act (3) that resulted from a “government policy or custom.” Mere allegations that a municipality has a policy or custom that violated a plaintiff’s rights are insufficient to hold a municipality liable under §1983, rather it must be proven that the policy or custom not only caused the complained of constitutional violation, but exhibits a “deliberate indifference” to citizens’ rights. Dwares v. City of New York, 985 F.2d. 94, 100-101 (2d Cir. 1993).

Plaintiffs can show a “governmental policy or custom” sufficient to establish municipal liability under Monell in one of four ways. Plaintiffs can allege:

(1) the existence of a formal policy which is officially endorsed by the municipality; (2)actions taken or decisions made by municipal officials with final decision making authority, which caused the alleged violation of plaintiff’s civil rights; (3) a practice so persistent and widespread that it constitutes a custom of which constructive knowledge can be implied on the part of the policymaking officials; or (4) a failure by policymakers to properly train or supervise their subordinates, amounting to “deliberate indifference” tothe rights of those who come in contact with the municipal employees.

Castanza v. Town of Brookhaven, 700 F.Supp.2d 277, 287 (E.D.N.Y. 2010); see also Bd. of Cty. Comm’rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397 (1997); Davis v. City of New York, 75 Fed. Appx. 827 (2d Cir. 2003).

Our next post will continue looking at the Monell claim, this time at the implications of Monell for suits in which both a municipality and government officials are named defendants.

What Does It Take To Be A “Class of One”?

The Fourteenth Amendment’s Equal Protection Clause essentially requires that “all people similarly situated should be treated alike.” In practice, this has been focused on discrimination based on classifications such as race, religion, national original, etc. There are, however, other types of equal protection claims that can be brought. One such claim is the focus of today’s post: the “Class of One” equal protection claim.

In examining this claim, we will do so through the lens of
Abramson v Gettel, 2014 WL 6694505 (S.D.N.Y. 2014). To succeed on a “Class of One” claim, a plaintiff must establish that “(1) no rational person could regard the circumstances of the plaintiff to differ from those of a comparator to a degree that would justify the differential treatment on the basis of a legitimate government policy; and (2) the similarity in circumstances and difference in treatment are sufficient to exclude the possibility that the defendants acted on the basis of mistake.” This requires a particularly high degree of similarity to be shown, not an easy standard to meet. In the Abramson case, the claim was brought by a concert promotor operating in the area where Woodstock was held, alleging another promotor was given preferential treatment by the Town. Yet in reviewing this case, the court found the properties had different zoning and land use rights, as well as a history of the plaintiff violating the Town’s regulations, making a comparison impossible. This was the case even though both companies would hold music festivals, and at times these would even be competing events.

While the “Class of One” case can be a viable way to pursue an Equal Protection claim absent a suspect class, doing so is difficult and thus it is an uncommon route to take. That said, if you can show a sufficiently similar party receiving substantially different treatment, it may be worth pursuing.

Beware the Statute of Limitations in §1983 Cases

Today’s post is noteworthy in that it address both §1983 cases and land use issues, specifically the need to be aware of the statute of limitations and the outer limits of tolling. The plaintiffs, who own a marina, have an acrimonious past with the Town. In fifteen years, the Town brought seven suits alleging various Zoning Code violations, culminating in 2008, when criminal charges were filed and a civil suit seeking to enjoin the plaintiffs from using the marina was commenced. On November 15, 2013, the plaintiffs brought a §1983 claim against the Town alleging deprivations of the freedom of speech and property, selective enforcement claims, tortious interference with business relationships, and so forth. The problem was the statute of limitations.

In the State of New York, the statute of limitations for a §1983 claim is three years. Since that would make the plaintiffs about 16 months late in bringing their suit, they alleged that the statutory limit should be tolled because the Town’s actions represent a continuing violation. Under continuing violation doctrine, if a qualifying act has taken place during the current statute of limitations, the statute of limitations would be extended (or “tolled”) back to encompass older acts that were a part of the same violation. For example, in employment discrimination cases recent examples of harassment can be the basis for a claim that includes acts otherwise barred by the statute of limitations, such as denied promotions, etc., for which the statute of limitations has since lapsed but are still included as part of the “continuing violation.” Ultimately, the plaintiffs in our present case were unsuccessful in taking advantage of this doctrine, as they didn’t know or have reason to know of more recent acts taken against them, they could only allege the impact of the prior acts continued, which is insufficient.

In summary, be aware of the statute of limitations and the limits of tolling, as it can pose an absolute bar in all cases, but especially in §1983 cases.

The case was Melchner v Town of Carmel, 2014 WL 6665755 (S.D.N.Y. 2014)

Reed v. Town of Gilbert, Part 4: Justice Kagan’s Not-Actually-A-Dissent and Conclusion

This is the fifth and final post in our series looking at Reed v. Town of Gilbert, and it will consider the opinion concurring in judgment written by Justice Kagan (joined by Justices Ginsburg and Breyer). Like Justice Breyer’s opinion this would likely have been a dissent but for the Town of Gilbert’s defenses failing to pass, as Justice Kagan writes, “the laugh test,” let alone strict scrutiny.

Despite finding the Town of Gilbert’s defense sorely lacking and concurring in judgment, Justice Kagan shows serious concern about the majority’s opinion, beginning with some of the signs which will be analyzed and likely fail under strict scrutiny, such as the exemption of signs for historical sites from the federal Highway Beautification Act limits. She writes that the Court has historically been flexible in the application of strict scrutiny to facially content-based laws, and need not have decided the level-of-scrutiny issue. Here, given the Town’s poor defense, the court could have found the Town lacked a sufficient basis for the sign code’s rules without deciding on a broad standard, yet “the majority insists that applying strict scrutiny to all such ordinances is essential to protecting First Amendment freedoms, [but] I find it challenging to understand why that is so.” Given the limited relation between the majority’s opinion and the traditional First Amendment goals of protecting the “marketplace of ideas” and preventing government regulation based on “hostility or favoritism towards the underlying message,” the Court may well come to regret having adopted a hard (and stringent) rule going forward.

It is an open question whether Justice Kagan’s fears regarding the Court becoming the “Supreme Board of Sign Review” will come to pass. Maybe the courts will be flooded by issues such as whether Towns have a compelling interest to tell people “where George Washington slept” or whether there is “no other way to prevent hidden driveway mishaps than by specially treating hidden-driveway signs.” On the other hand, maybe they won’t. Ultimately it will come down to how broadly the lower courts attempt to apply this ruling. If Justice Alito’s concurrence becomes widely adopted as guidance, the parade of horribles may be avoided. Either way, it seems sign cases are going to become significantly more interesting for the foreseeable future.

The Court’s full decision can be found here:

Reed v. Town of Gilbert, Part 3: Justice Breyer’s Not-Actually-A-Dissent

This is the fourth post in our series looking at Reed v. Town of Gilbert, and it will consider Justice Breyer’s opinion concurring in judgment. Despite reaching the same conclusion as the majority, Justice Breyer advocates for a very different approach in the application of strict scrutiny, and does so in a manner that reads very much like a dissent.

Justice Breyer’s opinion argues for a more nuanced approach to the application of strict scrutiny, writing “while using content discrimination to trigger strict scrutiny sometimes makes perfect sense… it cannot and should not always trigger strict scrutiny.” As applying strict scrutiny leads to “almost certain legal condemnation,” the Court must be more sensitive in its use. Regarding content discrimination in particular, many government regulations discriminating based on content (labeling for prescription drugs, what documents fall under confidentiality laws, tax statements, etc.) provide good examples of where a strong presumption against constitutionality is inappropriate. To address this, Justice Breyer suggests an approach that is admittedly somewhat mechanical, where for public forum or viewpoint discrimination issues, content discrimination is treated as strongly arguing against constitutionality, while in other cases it is simply a factor in measuring the strength of a regulation’s justification. In conclusion, though the Sign Code at issue should rightly be found unconstitutional, strict scrutiny should not have been applied, nor should it be applied to casually going forward.

The Court’s full decision can be found here:

Reed v. Town of Gilbert, Part 2: Implications and Justice Alito’s Concurring Opinion

This is the third post in our series looking at Reed v. Town of Gilbert. If you haven’t already read them, please refer back to the Introduction and Part 1 for the factual background and majority opinion. This will focus on the implications of the decision, particularly as seen through the Justice Alito’s concurring opinion (joined by Justices Kennedy and Sotomayor).


Turning back briefly to the majority opinion, Justice Thomas closes by addressing the Town’s contention that his ruling will subject virtually all sign laws to strict scrutiny. Specifically he says content-neutral regulations such as “size, building materials, lighting, moving parts, and portability” are still subject to lesser scrutiny, as are laws banning signs entirely on public property. Furthermore, traffic safety signs may be regulated under narrowly tailored laws that can survive strict scrutiny. Only content-based restrictions, like those discriminating between ideological, political, and event signs, must be strictly justified. Despite this attempt at assurance, it is still easy to imagine a scenario in which this ruling has the effect the Town is concerned about, and that viewed is shared by a majority of the Justices as well. With that in mind, Justice Alito wrote a one-page concurring opinion concerned entirely with more accurately defining the scope of the majority’s decision.


Acknowledging that the court’s decision to apply strict scrutiny to content-based regulations, as defined in the majority opinion, is the proper decision, Justice Alito goes on to enumerate some examples of what would not be considered content-based. These include rules regulating: the size of signs, if based on content neutral criteria; the location of signs, including free-standing and those attached to buildings; lighted v. unlighted signs; fixed messages v. changing electronic messages; signs on private v. public property; signs of residential v. commercial property; on-premises and off-premises signs; the number of signs per mile of roadway, etc. Though explicitly described as an incomplete list, it does give meaningful (if not binding) guidance to lower courts as they look to apply this seemingly sweeping decision in the future.


The Court’s full decision can be found here:

Reed v. Town of Gilbert, Part 1: The Majority Opinion

This is the second post in our series looking at Reed v. Town of Gilbert, and will focus on the majority opinion authored by Justice Thomas, and joined by Chief Justice Roberts as well as Justices Alito, Kennedy, Scalia, and Sotomayor. If you haven’t already read it, I suggest going back to read the introduction segment, which provides an overview of the facts of the case.

The First Amendment prohibits laws “abridging the freedom of speech,” requiring strict scrutiny be applied to content-based regulations of speech, as well as laws that “cannot be justified without reference to” speeches’ content. Writing for the majority, Justice Thomas says that by distinguishing between signs based on their intended message (“influence the outcome of an election” or “direct the public to a qualifying event”), the Town’s Sign Code is content based on its face and thus strict scrutiny applies.

To survive strict scrutiny, the government must present a compelling government interest and show that the regulations are narrowly tailored. The Town provided two potential interests: preserving the Town’s aesthetic and traffic safety, but Justice Thomas writes that even assuming for argument’s sake that these are compelling, there is no evidence that the Code’s distinctions between political, ideological, and TD Signs in any way serve these interests. After all TD Signs are “no greater an eyesore” than ideological or political ones, and… if anything, a sharply worded ideological sign seems more likely to distract a driver than a sign directly the public to a nearby church meeting”. The Sign code thus fails under strict scrutiny.

It is worth noting Justice Thomas also rejects the contention by the Ninth Circuit and the brief for the United States that “a sign regulation is content neutral—even if it expressly draws distinctions based on the sign’s communicative content— if those distinctions can be ‘justified without reference to the content of the regulated speech,” stating that when the law is facially content-based, justification or purpose never enters into the analysis.

The Court’s full decision can be found here:

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