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Archive for the ‘Government Law’ Category

Georgia Supreme Court Rules No Pre-Suit Notice Required to Sue Cities for Intentional Acts

Posted on: March 10th, 2017

By: A. Ali Sabzevari

Anyone who defends cities in Georgia should be aware of the recent opinion from the Supreme Court of Georgia, WEST v. CITY OF ALBANY et al., No. S16Q1881, 2017 WL 875033, at *3 (Ga. Mar. 6, 2017). The Supreme Court held that the city ante litem statute, O.C.G.A. § 36-33-5, only applies to damages caused by negligence, not intentional acts including those filed under the Georgia Whistleblower Act. City employees who have claims under the Georgia Whistleblower Act therefore do not have to provide their employer with ante litem notice prior to filing a lawsuit. The same does not hold true for claims against counties, because the plain language of the county ante litem statute makes clear that notice is required for all claims: “[a]ll claims against counties must be presented within 12 months after they accrue or become payable or the same are barred[.]” O.C.G.A. § 36-11-1.

If you would like a copy of the opinion or have any questions, please contact A. Ali Sabzevari at [email protected].


Supreme Court to Review Ninth Circuit’s “Provocation Doctrine” in Excessive Force Cases

Posted on: March 3rd, 2017

By: Wes Jackson

Imagine you’re a police officer searching for an armed suspect. Radio dispatch advises that an anonymous caller saw a suspicious man rush into a nearby home. You and your partner decide to enter and search the house, without a warrant and without knocking and announcing your presence. As you enter the dark house and conduct a search, you begin to doubt whether your entry into the home was legal under the Fourth Amendment. But before you have time to decide whether your search is constitutional, you see a flash and hear a loud “bang!” Just as you realize that your partner was shot, you see a man pointing a gun at you. Would you shoot him?

The United States Supreme Court will likely consider hypotheticals like this one when it reviews the Ninth Circuit’s decision in Los Angeles County, Cal. v. Mendez, 815 F.3d 1178 (9th Cir. Mar. 2, 2016). In Mendez, the Ninth Circuit applied its “provocation doctrine” to hold that an officer can be liable for civil damages stemming from a constitutionally reasonable use of force if the officer intentionally or recklessly provoked a violent confrontation and the provocation was itself an independent Fourth Amendment violation.

In the hypothetical above, shooting the armed suspect would be reasonable under the Supreme Court’s current use of force jurisprudence. But if the police officers had in fact violated the Fourth Amendment by entering the home without a warrant or without knocking and announcing their presence, the shooting officer could nevertheless be liable for the reasonable use of force under the “provocation doctrine” if the unconstitutional search provoked the suspect to shoot first.

The “provocation doctrine” is currently the exception rather than the rule—most other circuits limit their excessive force analysis to the officer’s conduct at the time the officer applied the force while ignoring other pre-seizure conduct. The Supreme Court’s ruling later this year could alter the legal analysis of excessive force cases by broadening how courts review officers’ conduct in excessive force claims. The attorneys at Freeman Mathis & Gary, LLP will monitor the case and report on upcoming developments.

For any questions, contact Wes Jackson at [email protected].

Georgia Supreme Court Reverses Plaintiff’s Verdict But Leaves Apportionment Questions Undecided

Posted on: March 2nd, 2017

By: Wayne S. Melnick and Kevin R. Stone

Recently, FMG blogged about the Court of Appeals’ opinion in Goldstein, Garber & Salama, LLC v. J.B., a case in which a jury found a dental office (GGS) 100% at fault for criminal conduct committed by a nurse anesthetist (Paul Serdula) who sexually assaulted a dental patient (J.B.) while she was sedated for a surgical procedure. The jury found Serdula to be 0% at fault despite the undisputed fact that he committed the assault, and the Court of Appeals upheld this verdict. Earlier this week, the Georgia Supreme Court reversed.

The Court found there was no evidence that GGS knew, or reasonably should have known, that Serdula would have committed the assault. Thus, GGS could not be liable for Serdula’s criminal conduct and the trial court erred in not granted GGS’s motion for directed verdict. Restated, the Georgia Supreme Court found GGS had 0% fault as a matter of law—the opposite of the jury verdict.

We watched this case because of two different issues: whether the employer could be held liable for the criminal acts of its employee in light of Georgia’s apportionment statute; and whether a finding of 0% liability to an admitted criminal wrongdoer was an illegal verdict requiring reversal.

Because of its ruling, the Georgia Supreme Court did not reach the above issues, and they remain undecided. So, for now, Georgia law continues to remain clouded on these points, and we continue to monitor the appellate pipeline for cases that will present either/both those issues.

For any questions, contact Wayne Melnick at [email protected] or Kevin Stone at [email protected].

Trump Nominates New Labor Secretary Nominee One Day After Puzder Drops Out

Posted on: February 16th, 2017

GTY-alexander-acosta-02-as-170216_31x13_1600By: Marty Heller

Donald Trump has named Florida International University Law School Dean, R. Alexander Acosta, as his new nominee for Secretary of Labor. Acosta is a Harvard Law graduate who clerked for Supreme Court Justice Samuel Alito when he was an appeals court judge, and previously has served on the National Labor Relations Board and was an Assistant Attorney General under George W. Bush, before acting as US Attorney for the Southern District of Florida. It remains to be seen where Acosta stands on several key issues that await the new secretary of the DOL, including implementation of the currently enjoined “overtime rule” which substantially increases the minimum salary to qualify for the FLSA’s white collar exemptions. 

For any questions, please contact Marty Heller at [email protected].

Eleventh Circuit Finds that Officers are Entitled to Qualified Immunity in Fourth Amendment Flashbang Lawsuit Handled by FMG

Posted on: February 8th, 2017

blog aliBy: Wayne Melnick and A. Ali Sabzevari

Attorneys at Freeman Mathis & Gary, LLP recently obtained a favorable ruling for officers in a Section 1983 lawsuit wherein a woman alleged that she was injured by a flashbang allegedly thrown through her bedroom window and into the room where she was sleeping. 

Judge William Pryor Jr. writing for the Eleventh Circuit held that deploying a flashbang into a dark room occupied by two sleeping individuals without first performing a visual inspection violates the Fourth Amendment. The Eleventh Circuit nevertheless found that the officers are entitled to qualified immunity because they did not violate clearly established law.  

“This is an important opinion because it is a matter of first impression in the Eleventh Circuit,” said the winning lawyer who argued the case before the Eleventh Circuit, Wayne Melnick of Freeman Mathis & Gary. “Courts around the nation–federal and state–are split regarding the application of immunity in cases involving flashbang usage.” Melnick and A. Ali Sabzevari of FMG successfully defended the officers obtaining summary judgment at the trial court level and the affirmance on appeal. 

While the Eleventh Circuit certainly could have declined to reach the issue of whether there was a constitutional violation, the Eleventh Circuit opted not to and sent a message to the law enforcement community that if an officer deploys a flashbang into a dark room occupied by sleeping individuals, without first visually inspecting the room, that officer’s action constitutes excessive force in violation of the Fourth Amendment. All municipalities that utilize flashbangs for less-than-lethal force are strongly recommended to review this new opinion and advise their officers regarding same.

If you would like a copy of the opinion or have any questions, please contact Wayne S. Melnick at [email protected] or A. Ali Sabzevari at [email protected].