Update on Trump’s Coup: Do Not Think That This Is Guaranteed to End Well

NEIL H. BUCHANAN

UF Levin College of Law professor Neil H. Buchanan explains why “being patient with Trump” is a recipe for disaster, why there are still reasons to be guardedly optimistic, and why this all could still end very badly. Buchanan argues that the present situation is not guaranteed end badly, but he cautions that a Trump coup is eminently possible.

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Johnson v. City of Saginaw

Docket: 19-1208

Opinion Date: November 13, 2020

Judge: Helene N. White

Areas of Law: Civil Rights, Constitutional Law

Johnson’s Saginaw restaurant was rented out for a birthday party. A gang-related fight began inside Johnson’s building and became a gunfight in the street. City officials suspended Johnson's business license and water service to prevent her from hosting further events. The Michigan Building Code and local ordinance authorize disconnection in case of emergency, where necessary to eliminate an immediate hazard to life or property. Water has been disconnected from other businesses in response to shootings without pre-deprivation notice; “the notice of the suspension of the business license covers [water shutoffs] even though it doesn’t mention it.” Johnson sued. The police chief testified about a 2015 party at Johnson’s property that ended in a similar shooting. Johnson testified about damage attributable to the lack of water service and lost revenue and that she had called to request that her water service be restored but a representative told her no information regarding the shutoff could be provided. The district court denied qualified immunity to city officials. The Sixth Circuit affirmed in part. A license suspension hearing was held within three days of the shooting; it would not have been impractical to a hearing before suspending Johnson's license and water service. The deprivation was not random, unpredictable, or unauthorized. Given Johnson’s significant interest in continued water service, the high risk of erroneous deprivation, and the value and minimal burden of additional safeguards, the disconnection violated procedural due process rights that were clearly established. Once Johnson’s business license was suspended, the water shutoff served no rational purpose; Johnson made an adequate showing that the shutoff violated her substantive due process right but that right was not clearly established for purposes of qualified immunity.