Articles

By Bob Gorsky
Reprinted from “The Shield,” the official publication
of the Dallas Police Association
August 2006

On Friday, June 30, 2006 the Texas Supreme Court issued two opinions on the issue of sovereign immunity.

In Tooke v. City of Mexia, the Supreme Court overruled 36 years of supreme court precedent and stated that city charter provisions noting that a city can “sue and/or be sued” or “plead and/or be impleaded” did not constitute a waiver of immunity from suit.  They held that such language “is often used to mean only that an entity has the capacity to sue and be sued in the courts in its own name.”

In Reata Construction Corporation vs. City of Dallas, the Supreme Court found that the filing of claims for affirmative relief by the City against Reata waived any claim to sovereign immunity and that Reata could therefore sue the city for its negligent acts.

The Court also decided nine  other sovereign immunity cases and ordered them all sent back to the trial court for further proceedings consistent with its opinion.  We expect that when the dust settles all of the pay cases will be remanded to the trial courts as well.  The pay cases differ from any of the sovereign immunity cases that have come before the appellate courts as they are based on a referendum, a vote of the people.  We will continue to study these rulings as others that are likely to be handed down as well.

RECENT U.S. SUPREME COURT DECISIONS AFFECT POLICE

1. In a case out of Detroit, Michigan, the United States Supreme Court has ruled in a 5 to 4 decision that drugs or other evidence seized can be used as evidence in trial even if the police fail to wait after announcing their presence.  The decision is significant in that Samuel Alito, who replaced retired Justice Sandra Day O’Connor, ruled with the majority.  It is believed that Justice O’Connor may have gone the other way.  Prior case law  had required that police armed with a warrant knock, announce and wait a reasonable time before entering.
2. In a unanimous decision, the court has made it easier for employees to pursue retaliation claims after filing complaints about discrimination based on race, color, religion, sex or national origin.  The court ruled that the types of adverse actions that must take place before a retaliation claim can be brought are broader in retaliation cases than the adverse actions required to bring a discrimination claim.  For example, while a reassignment might not be sufficiently adverse to support a discrimination complaint, it would support a claim of retaliation made after a discrimination complaint is filed.  Retaliation claims have doubled in the past decade and are now easier to prove than in many cases the underlying discrimination complaint.
3. In a Georgia case, the court has ruled that police cannot enter a house over one resident’s objection simply because a second occupant invites them in.  In the split decision, the majority ruled that there was no common understanding that one co-tenant can prevail over the expressed wishes of another.  It should be noted that in a 1974 case, the court allowed one tenant to let police search the property while a co-tenant was not home.
4. In a very significant opinion, the court has denied First Amendment protection to a Los Angeles assistant district attorney who had claimed retaliation after complaining about misconduct of a deputy sheriff.  While the First Amendment has generally protected people who complain about police misconduct (including police officers complaining about misconduct within their department), the court ruled that the employee’s complaints were made pursuant to his job responsibilities and were not protected by the First Amendment.  The Court pointed out that there are statutory protections such as federal and state whistleblower laws that would not be affected by the opinion.  While it is true that whistleblower laws might be applicable, they are very limiting both in the acts that can be complained of and the damages that may be recovered.  This ruling will significantly limit the situations in which an employee can take legal action in order to protect his free speech rights.

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Bob Gorsky is a partner at the Dallas law firm of Lyon, Gorsky, Haring & Gilbert, L.L.P., 3131 McKinney Avenue, Suite 100, Dallas, Texas 75204; 214/965-0090, website: lyongorsky.com or email Bob at bgorsky@swbell.net.