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City of Evanston v. Franklin

As Tom previously noted, we filed a brief in opposition to certiorari today in No. 04-856, City of Evanston v. Franklin.

The case arises against the backdrop of a series of Supreme Court cases – including Garrity v. New Jersey (1967), Gardner v. Broderick (1968), and Lefkowitz v. Cunningham (1977) – which established that (1) a government employer can compel its employees to answer questions relating to the performance of their official duties, but that (2) the Fifth Amendment prohibits the government from using those answers against the employee in future criminal proceedings.

Respondent Franklin, an employee of the City of Evanston, Illinois, was arrested for possession of drugs while off duty. He was questioned about the episode and the charges by his boss, at a pre-termination disciplinary hearing, and at a grievance hearing. Franklin refused to answer the questions because of the pending criminal charges (which were later dropped). When he was fired, Franklin brought suit against the city for, inter alia, violating his right to due process.

The district court initially found a due process violation because the City failed to warn Franklin, as required by Seventh Circuit case law, that his refusal to answer questions could be used against him since he would have use immunity for any statements compelled during the disciplinary hearing. Upon a motion for reconsideration, the district court found that the City could not be held liable since it had no official policy regarding these warnings. The Seventh Circuit reversed, finding that the city did have a policy of not giving the warnings, and finding the city liable for violating Franklin’s due process rights. The City petitioned for review of three questions.

The City first argues that the Seventh Circuit’s warnings requirement conflicts with several other courts of appeals’ rulings and should be rejected. Franklin contends that there is no circuit split, that the Seventh Circuit’s rule is identical to the one adopted by the Federal Circuit, and that the rule is required by Supreme Court precedent.

The City also asserts that the Seventh Circuit’s ruling ran afoul of Chavez v. Martinez, where the Court found that violations of a prophylactic rule (in that case, Miranda’s warnings requirement) are not actionable under Section 1983. Franklin contends that Chavez is inapplicable since he suffered a concrete injury from the City’s violation: the loss of his job.

Finally, the City asserts that it cannot be held liable under Section 1983 for failing to have a policy to deal with a constitutional right that was not identified until after the alleged deprivation occurred. Franklin counters that granting certiorari on this question would force the Court to reconsider its holding in Owen v. City of Independence (holding that municipalities are not entitled to qualified immunity) and that, in any event, the Seventh Circuit’s rule predates the termination.

We expect the case to be considered in conference on March 25, 2005.