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Wayne Melnick and Michael Hill prevailed before the Eleventh Circuit Court of Appeals in a case of first impression regarding whether Title II of the Americans with Disabilities Act permits recovery for emotional-distress damages. The plaintiffs were public school students alleging discrimination on account of developmental disabilities alleging their former teacher physically and emotionally abused them and that the school principal failed to report the alleged abuse to the proper authorities in a timely manner. Representing the school district and the principal, Mr. Melnick and Mr. Hill obtained an order granting their motion to dismiss the students’ complaint for recovery of emotional-distress damages while also successfully opposing the students’ motion to amend their complaint on grounds that the proposed amendment would be futile. On appeal, the Eleventh Circuit affirmed the dismissal of the students’ claims for emotional-distress damages and Due Process claims against the school district and principal under 42 U.S.C. 1983. The Eleventh Circuit also took the increasingly rare step of publishing this opinion, meaning it now is controlling precedent and binding on all federal courts in the circuit. 

A.W. et al v. Coweta County School District et al, Eleventh Circuit Court of Appeals, Case No. 22-14234. 

Doug Holthus and Cara Wright obtained summary judgment in favor of the City of Kenton and its police officer in a case arising from a traffic crash that occurred when the police officer was responding to a call involving a knife fight. The trial court found that there was no evidence that the police officer acted willfully, wantonly, recklessly, maliciously or in bad faith and that, as a result, the officer and the city were immune from suit under Ohio state law.  

Anita Gaskins v. Skyler Newfer, et. al.; Hardin County Court of Common Pleas, Case No. 20221178CVC

Sun Choy and Wes Jackson obtained an appellate victory for the City of Roswell in a case involving an officer’s use of spike strips to stop a high-speed pursuit. The officer involved parked his car ahead of the pursuit, exited the vehicle, removed the “stop sticks” from his trunk and stood behind his car to throw the sticks in the path of the fleeing driver. The fleeing driver swerved to miss them and struck the plaintiff, a pedestrian. The question on appeal was whether the officer’s actions amounted to the “negligent use of a motor vehicle” for purposes of the City’s statutory waiver of sovereign immunity.  

The Georgia Court of Appeals held that while the officer “used” his vehicle in a broad sense, that “use” was too attenuated from the plaintiff’s injuries to have caused them. Furthermore, the Court held that the officer’s “use” of the vehicle to drive to the scene and assist in a pursuit was not “negligent,” and thus the plaintiff failed to show that her injuries arose from the “negligent use of a motor vehicle.” The plaintiff sought review of this decision by the Georgia Supreme Court, which denied the plaintiff’s request. 

Clementina Hernandez-Flores v. City of Roswell

Doug Holthus and Cara Wright obtained summary judgment in favor of the City of Kenton and a city police officer in a case involving a Plaintiff that was bitten by a police K9. The bite occurred when the officer was out of town and had left the K9 in the care of his roommate. FMG argued that the Plaintiff was unable to show that the officer’s conduct would waive sovereign immunity. The trial court ruled that the City of Kenton and the officer were immune from the Plaintiff’s claims and expressly found that there was no evidence that the officer acted willfully, wantonly, recklessly, maliciously or in bad faith, as is necessary to defeat sovereign immunity.  

Mindy Herring v. Melvin Yoder, et. al.; Hardin County Court of Common Pleas, Case No. 20231055CVC

FMG Attorneys Doug Holthus and Cara Wright obtained summary judgment for their police officer client in a case alleging retaliation in violation of the First Amendment of the Constitution. Plaintiff claimed that our client and the other police officers involved retaliated against him when they performed a welfare check at his residence after he had complained that the residence was not habitable and that the house did not have running water or electricity. The Plaintiff’s encounters were captured by the officers’ body-worn cameras, which established that the officers were present due to the complaints made by the Plaintiff. The body-worn cameras also established that the officers did not arrest, detain or charge the Plaintiff with any crimes.  

The district court granted summary judgment in favor of the police officer, finding that the Plaintiff failed to produce any evidence that he was subjected to any adverse action or that any alleged adverse action was causally related to the Plaintiff’s protected speech. 

Lorenzo Allen Thomas v. City of Circleville, et. Al.

Doug Holthus and Cara Wright received an affirmed summary judgment in Ohio’s Third District Court of Appeals in favor of FMG’s client, a local school district board of education, in a slip and fall case. Plaintiff alleged that the school district was negligent in electing not to use a removable step at the end of the bleachers, resulting in the last step between the bleachers and the gym floor to be about twice as high as the rise between the other steps. The appellate court affirmed that the difference in riser height was open and obvious and rejected Plaintiff’s argument that other circumstances (a trash can placed on the floor near the stairs and the basketball players warming up) distracted the Plaintiff and negated the open and obvious nature of the condition.

Bradshaw v. North Union Local School District Board of Education

FMG attorneys Michael Freed and Sun Choy obtained a victory in the Eleventh Circuit Court of Appeals on behalf of seven Athens-Clarke County police officers who were granted qualified immunity in a Fourth Amendment excessive force case. The case arose from the tragic death of young man in Athens, Georgia. Local police received reports that the man was armed and behaving erratically. After breaking through an initial barricade, police surrounded the man in a church parking lot. Police body camera videos show the man pacing outside his car holding a gun while an officer on a loudspeaker implored him to put the gun down and surrender. After several minutes, the man walked briskly toward several of the officers and raised his gun in their direction. The officers opened fire, killing him. The man’s estate filed suit under 24 U.S.C. 1983 claiming excessive force in violation of the decedent’s Fourth Amendment rights. The district court dismissed the claim against the officers, holding that they were entitled to qualified immunity. The district court’s decision was informed by the body camera videos, which it considered at the motion to dismiss stage under the “incorporation by reference” doctrine. The Eleventh Circuit, after hearing oral argument, affirmed. It held that the district court’s incorporation of the body camera footage was proper under binding precedent. Based on what that footage showed, the Eleventh Circuit held that the officers committed no Fourth Amendment violation because their use of force was reasonable under the circumstances. 

Swinford v. Santos, 121 F.4^th 179 (11^th Cir. 2024)

Wes Jackson, Steven Grunberg, and Sun Choy prevailed on a motion for summary judgment in the United States District Court for the Southern District of Georgia before a federal judge in a case involving claims of unlawful entry into a home and excessive force under the Fourth Amendment. The matter concerned the death of a woman who was present in a home where sheriff’s deputies were serving a search warrant. Upon entering the home, the target of the warrant opened fire at the deputies while pulling the woman towards him. The deputies returned fire, injuring the man and fatally striking the woman. The plaintiffs claimed that the officers’ entry into the home was unlawful because they did not wait long enough after knocking on the front door before forcing entry, and they claimed the use of lethal force was unlawful because plaintiff’s decedent, the woman, was not the target of the warrant and had not opened fire on the deputies. In granting summary judgment, the court found that the decedent’s estate had not established that she had a reasonable expectation of privacy in the home and, even if it had, the officers’ entry into the home was still reasonable under the circumstances. Furthermore, the court held it was reasonable for the deputies to return fire towards a man who was actively shooting at them, even if this resulted in the death of the woman he was pulling towards himself. 

Jacob Gates v The Grier Foundation and Geoffrey Grier, United States District Court for the Middle District of Pennsylvania, Civil Action No. 4:23-cv-01443.

A recurring issue in Georgia municipal law is the failure of plaintiffs to comply with the municipal ante litem notice statute, especially the requirement that a person’s notice of a claim include a specific settlement demand. This issue was again front and center in City of College Park v. Miriam Steele, which was the City’s appeal of the trial court’s denial of its motion to dismiss. 

The case was about an accident involving a car driven by Miriam Steele and a garbage truck owned by the City and operated by a City employee. Regarding the requirement of specifying a settlement demand, Steele’s ante litem notice said that she “has claims for her medical expenses of approximately $100,000” and that she has a claim for non-economic damages for $20,000. Despite the use of the non-specific word “approximately,” the trial court found that Steele’s ante litem notice set forth Steele’s willingness to settle for $120,000. 

On appeal, FMG attorneys Sun Choy and Jake Daly argued that Steele’s ante litem notice did not state a specific amount of monetary damages for which she would have settled her claim. Because an approximate amount is not, by definition, a specific amount, the Georgia Court of Appeals agreed and held that Steele’s ante litem notice failed to comply with the statute. As a result, the trial court erred in denying the City’s motion to dismiss. 

Wesley Jackson and Steven Grunberg recently prevailed at the Eleventh Circuit Court of Appeals on behalf of a Berrien County Sheriff’s Office investigator. Plaintiff brought Section 1983 and state law claims against an investigator with the Berrien County Sheriff’s Office, following plaintiff’s arrest for allegedly cashing a counterfeit check. Specifically, plaintiff asserted claims under the Fourth Amendment for unlawful-search-and–seizure, unlawful pretrial detention, and malicious prosecution. Plaintiff also brought state law claims for malicious prosecution and intentional infliction of emotional distress. 

The district court entered judgment for FMG’s client, finding that he was entitled to qualified immunity and official immunity, which was affirmed by the Eleventh Circuit Court of Appeals. The Court held that the investigator had actual probable cause for plaintiff’s arrest based on information gathered during his investigation into the counterfeit check. During his investigation, he performed a database search that revealed plaintiff’s license, spoke with the store clerk who received the fraudulent check, showed her plaintiff’s photograph, and received a positive identification for plaintiff. 

Ben Mathis, Michael Freed and Bill Buechner prevailed on behalf of Hall County, Georgia in a pension dispute seeking over $100 million in lost contributions and profits on behalf of a class of more than 100 current and retired County employees.  The plaintiffs asserted claims for breach of contract, impairment of contracts under the Georgia Constitution, and various state law tort claims based on Hall County allegedly unlawfully freezing accruals in the County’s defined benefit plan when it changed from a defined benefit plan to a defined contribution plan in 1998.   The trial court ruled in favor of the County and rejected the plaintiffs’ argument that the freeze of accruals in the defined benefit plan constituted a “termination” of the plan under Georgia law or under federal tax law.  Afterward, the Georgia Supreme Court denied plaintiffs’ petition for review of the case.