AuthorMichael Asimow
ProfessionVisiting Professor, Stanford Law School, Professor of Law Emeritus UCLA School of Law (Committee Vice Chair)
A. Due Process
1. Suspension of Taxi Driver Licenses
New York City licenses taxi drivers. If drivers are arrested for any of a
long list of criminal offenses, their licenses are summarily suspended. The
relevance of some of these crimes to a driver’s fitness to hold a cab license is
obvious; but some of the crimes seem distantly or totally unrelated to fitness
to drive a cab (such as welfare fraud or falsifying business records).
Within a short time after a summary suspension, the driver is entitled to
a hearing. However, the driver is not permitted to argue that he or she is
innocent of the criminal offense. The regulations provide that the driver is
allowed to argue that the pending charges, even if true, would not demon-
strate that the driver would be a threat to public safety—but apparently this
claim is never granted in practice. The drivers argued that the suspension and
post-suspension hearings violate procedural due process, but the trial court
granted summary judgment to the City.1
* By Michael Asimow, Visiting Professor, Stanford Law School, Professor of
Law Emeritus UCLA School of Law (Committee Vice Chair).
1. When public employees are suspended without a hearing because they
have been arrested on suspicion of having committed a crime, due process
requires a post-suspension hearing. If the criminal charges are dismissed or
the employees are acquitted, the post-suspension hearing probably must
consider whether misconduct actually occurred. The mere fact that the
employees were arrested on suspicion of crime is not a sufficient basis to
terminate them or to deny compensation during the suspension period—or
at least plaintiffs should have an opportunity at trial to raise these argu-
ments. See Ass’n for Los Angeles Deputy Sheriffs v. Cnty. of Los Angeles,
648 F.3d 986 (9th Cir. 2011).
4Developments in Administrative Law and Regulatory Practice
In Nnebe v. Davis,2 the Second Circuit reversed the trial court and re-
manded the case for trial. The court determined summary suspension without
a hearing does not, in and of itself, violate due process. As the Supreme Court
ruled in Gilbert v. Homar,3 the only deprivation caused by a brief pre-hearing
suspension is the loss of income until a prompt post-deprivation hearing oc-
curs and the risk of error is low. Meanwhile the government has a strong
interest in being able to take immediate action when an employee or licensee
has been arrested for a serious crime.
In Nnebe, the court determined that the post-suspension hearing might
not be adequate to provide due process. It is not necessary for the post-
suspension hearing to consider whether the driver is in fact guilty of the
crime charged; this would be difficult and time-consuming to determine and
would improperly require criminal prosecutors to testify in the administra-
tive hearing.
However, there is a further problem: it appears that, in practice, hearing
officers always determined that the charges against a driver would, if true,
threaten public safety, regardless of the specific nature of the crime charged.
In fact, the hearing officers clearly understood that they were not permitted
to overturn a suspension on this ground. The Second Circuit did not deter-
mine whether the inability of hearing officers to actually overturn a suspen-
sion for this reason would be a due process violation, but it strongly suggested
that it might be. In any event, summary judgment was inappropriate.
2. Access to Public Parks
Local governments frequently try to impede access to public parks for the
homeless or for persons suspected of being sex offenders. It is unclear whether
due process applies in such situations and, if so, what it might require.4 In
Catron v. City of St. Petersburg,5 the Eleventh Circuit struck a welcome blow in
favor of enforcing due process in this situation. An ordinance of the City of St.
Petersburg, Florida, allowed any public official to issue a “trespass warning” to
any person present on city properties (including parks) if the official believes
that the person has violated any city ordinance or state law or “for any lawful
2. 644 F.3d 147 (2d Cir. 2011).
3. 520 U.S. 924 (1997).
4. See Brown v. Michigan City, 462 F.3d 720 (7th Cir. 2006), discussed in the
2006-07 edition of Developments at 3–4.
5. 658 F.3d 1260, 1265–68 (11th Cir. 2011).

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT