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Archive for the ‘Government Law’ Category

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

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 or A. Ali Sabzevari at

U.S. Supreme Court: “Clearly Established” Means “Clearly Established”

Posted on: February 1st, 2017

By: E. Andrew Treese and Connor M. Bateman

Qualified immunity is all about the facts. To overcome the defense, a Section 1983 plaintiff must prove that an individual defendant violated his “clearly established” rights. The United States Supreme Court has held several times that “clearly established” law refers to authority providing “fair and clear warning” to the defendant that his conduct was prohibited. Reliance on general principles of law does not suffice: instead, a plaintiff must identify a case in which an official faced with similar circumstances as the defendant was held to have violated the Constitution.

The Court reiterated this point in White v. Pauly, 580 U.S. __ (2017). White, a police officer, arrived at a house to back up other officers who were conducting an investigation.  There is a contention the other officers failed to properly identify themselves to the occupants of the home. An occupant of the home began shooting at White, who returned fire without first yelling a warning. The trial court denied summary judgment to White, and the Tenth Circuit Court of Appeals affirmed, ruling that White violated “clearly established” law. Neither court, however, identified any cases with facts similar to White’s.

The Court granted certiorari and reversed, holding that the Tenth Circuit’s analysis of its “clearly established” law was fundamentally flawed due to a failure to identify a case with facts similar to White’s. The Court held that this reflected a “misunderstanding” of the applicable standard, particularly because the Tenth Circuit described the case as presenting unique facts and circumstances. “This alone should have been an important indication to the majority that White’s conduct did not violate a clearly established right.” The Court unanimously vacated the Tenth Circuit ruling and remanded for further proceedings, without asking for merit briefs or oral argument.

The takeaway is clear: facts matter. Section 1983 plaintiffs asserting claims against individual defendants should be pressed early and often to identify authority they seek to rely upon as “clearly established” law, and the fact-intensive nature of the standard must be emphasized in briefing and at oral argument.

For any questions, please contact Andy Treese at or Connor Bateman at

Mind Your Manners

Posted on: January 30th, 2017

By: Sara E. Brochstein

It is widely known that the Fourth Amendment protects citizens from unreasonable searches and seizures. While this is often considered in the context of an arrest, it also applies to a mental health seizure where an officer stops an individual to ascertain that person’s mental state. An officer is generally warranted to make such a seizure if the officer has probable cause to believe the person is a danger to himself or others. 

However, the analysis does not end there; a seizure supported by probable cause could be rendered unconstitutional if carried out in an inappropriate manner. While we most often see this issue arise in excessive force cases, it is important to remember that physical force is not the only conduct that can make an otherwise justified seizure unreasonable. The Eleventh Circuit recently found that, while an officer making a mental health seizure may have had adequate justification for the seizure (i.e., there was probable cause to believe the person was a danger to herself or others), the officer was not entitled to qualified immunity in light of the manner in which he conducted the seizure. 

In Phillis J. May v. City of Nahunta, Georgia, et al, an armed male officer was alone in a locked room with an elderly female citizen. The officer ordered the woman, under the implicit threat of force, to disrobe in front of him to change into more suitable clothing so that he could transport her to a hospital. The Eleventh Circuit described these actions as “clearly inappropriate” and denied the officer qualified immunity on summary judgment. Although it may have been reasonable for the officer to transport the citizen to the hospital and even require her to change clothes beforehand for safety reasons, the manner in which the officer accomplished this task was inappropriate. 

Given the recent focus on highly publicized episodes of use of force by police, it is easy to forget that physical force is not the only means through which to render unconstitutional a seizure, which may otherwise be lawful. In other words, even when probable cause is present, conduct that is unusually harmful to an individual’s privacy or physical interests can be unconstitutional and result in loss of immunity for law enforcement officers.

For any questions, please contact Sara Brochstein at


Trial Court Upholds City’s Zoning Decision

Posted on: January 24th, 2017


A Fulton County Court recently issued a final judgement in favor of FMG’s city client in a case tried by partner Dana Maine. This is Ms. Maine’s third consecutive trial success in the last 5 months, including a successful jury trial defense verdict. In the most recent case, the city had denied an application to rezone a parcel of property to allow for apartments. Finding that the property owner had not demonstrated that it suffered from a significant detriment from the exisitng zoning which allowed for commercial development, the Court ended its inquiry. Thus, the trial court ruled that it need not reach the issue of whether the property owner had demonstrated the lack of public benefit from the existing zoning. As the economy continues to improve, we are seeing an uptick in zoning cases, and claims of this type are becoming more frequent. For further information on this case, please contact Ms. Maine at 770.818.1408 or