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Archive for the ‘Government Law’ Category

Antisocial Media: Court Critical of Cop Capturing Curious Citizen’s Cellphone

Posted on: April 23rd, 2018

By: E. Charles Reed, Jr.

The Eleventh Circuit Court of Appeals has held that a police officer violates clearly established law by seizing a bystander’s cellphone at an accident scene in the absence of exigent circumstances.

With the rise of social media and the availability of devices with cameras, newsworthy events and potential evidence of criminal or civil liability can be captured by citizens with fortuitous timing and cellphones. While the methodology of capturing potential evidence has changed, constitutional principles associated with law enforcement’s gathering of that evidence has not. One law enforcement official recently learned this lesson the hard way in Crocker v. Beatty, 2018 U.S. App. LEXIS 8290 (Apr. 2, 2018).

In May 2012, Deputy Steven Beatty arrived at an accident scene involving an overturned SUV.  By the time Beatty had arrived, several bystanders, including a citizen named James Crocker, had taken photographs and video of the scene with their cell phones. Crocker captured images of empty beer bottles, the overturned vehicle and emergency personnel, but no images of the persons involved in the accident. Beatty approached Crocker, took his cellphone and instructed him to leave the area and wait for instructions about when his phone would be returned. Crocker refused to leave and offered to delete the footage in return for his phone. Instead, Beatty placed Crocker under arrest for resisting an officer without violence.

On appeal at the summary judgment stage, the Eleventh Circuit affirmed the trial court’s denial of qualified immunity for Beatty. First, the court rejected the argument that Beatty’s seizure was justified by exigent circumstances because Crocker was a non-suspect bystander with no motive to delete any photographs. The fact that Crocker’s cellphone could later be lost did not create an exigency.

More importantly, the Court held that the right to be free from warrantless seizures of personal property was established with “obvious clarity” in May 2012 such that Beatty should have known his conduct violated federal law. “Our case law has sent a consistent message, predating 2012, about the warrantless seizure of personal property and how exigent circumstances may arise. The technology of the iPhone simply does not change our analysis. To hold otherwise would deal a devastating blow to the Fourth Amendment in the face of sweeping technological advancement. These advancements do not create ambiguities in Fourth Amendment law; the principles remain as always. Because of this, Beatty is not entitled to qualified immunity.”

The Court did not address, and may not have been presented with, the policy implications for agencies responding to mass-casualty or critical incidents in metropolitan centers – where hundreds of witnesses may be present, each with different video clips taken at different times and from different angles.  However, the takeaway from this case is while technology may push products further and further into the future, the prudent law enforcement officer will apply the legal authority of the past to minimize being held liable for his or her actions.

Charles Reed is member of Freeman, Mathis, & Gary’s Government Section and regularly defends government employees in in civil rights cases.  He can be reached at [email protected] or by phone at 678-399-6351.

Eleventh Circuit’s Notice Requirement Read into Telecommunications Act

Posted on: April 5th, 2018

By: Dana K. Maine

In an opinion issued Monday, Athens Cellular, Inc. v. Oconee County, Georgia, et al, a panel of the Eleventh Circuit determined that a decision under Telecommunications Act (“TCA”) was “final” when the local government adopted the minutes from the denial meeting. This meant that the cellular company’s complaint was timely when it was filed within 30 days of the approval of the minutes. The panel reached this decision by applying the language from the Georgia Open Records Act, highlighting the fact that there was nothing in the local ordinance that indicated when a decision was final.  The county had considered the decision final when it was reduced to writing, approved by the chairman of the county commission and inserted in the minute book.  (The TCA requires that a decision be reduced to writing and provides the reasons for the decision.)

A concurrence written by Judge Lewis A. Kaplan, senior district Judge for the United States District Court for the Southern District of New York, sitting by designation, concluded that the complaint was timely, but on the basis of equitable tolling of the 30-day TCA statute of limitations, not the Georgia Open Records Act.  Judge Kaplan’s opinion points out an extremely concerning result of the majority opinion – no action of a local government is final until the minutes from the meeting at which the decision was made are adopted.  There is not any Georgia case that reaches this conclusion and, as a practical matter, this is not how local governments operate.  It would be impractical for there to be a month delay on the implementation of decisions.

Rather than making a broad proclamation about how local government decisions are made, it appears that the panel was attempting to fill in a void that was created by the lack of local ordinance addressing the finality of decisions. Thus, our advice to local governments is to review your ordinances and ensure that they explicitly include this information.

For assistance with this or any other local government matter, please contact Dana Maine, [email protected], or any other member of our National Government Practice Group, a list of which can be found on our website –

Federal Jurisdictional Update

Posted on: February 19th, 2018

By: Owen T. Rooney

Title 28 of the United States Code Section 1367(d) allows for federal supplemental jurisdiction over state law claims. This statute, as now construed by the US Supreme Court in Artis v. District of Columbia, holds that the statutes of limitations on any state law claims stops while the claim is in federal court, such that the act of filing in federal court acts as a “stop clock” on any limitation period applied to a state law claim. This means that, in the event the district court enters judgment on federal claims and then dismisses state law claims, i.e., declines to retain jurisdiction over them, plaintiffs will have all of the remaining time on their state claims when the federal action was filed  plus 30 days.

Notably, this decision overrules the district court and the DC Circuit Court of Appeals decisions against Artis, as well as the California Supreme Court’s 2014 decision in City of Los Angeles v. County of Kern.

If you have any questions or would like more information, please contact Owen Rooney at [email protected].

You Gotta Fight For Your Right… To Flip The Bird?

Posted on: February 9th, 2018

By: Sara E. Brochstein and Kevin R. Stone

Flick off. Flip off. Give the finger. Flip the bird. One finger salute. No matter what you call it, raising the middle finger is a long-recognized gesture used to express contempt, anger, or protest.

This past week, Mark May of Indiana filed a federal lawsuit, claiming that his free speech per the First Amendment was violated when he was issued a ticket for giving the middle finger to a state trooper.

When the trooper cut May off in traffic, May flipped the bird. In response, the trooper pulled May over and gave him a ticket for provocation, of which May was later found guilty. When May challenged the decision, the judgment was deemed void. With the assistance of the ACLU of Indiana, May then filed suit, arguing that his free bird was protected by the U.S. Constitution.

Although May’s lawsuit is currently pending, the Georgia Supreme Court recently addressed a similar situation, finding that a “disorderly conduct” statute did not prohibit a man from raising his middle finger to a pastor during a church service. According to the court, a raised middle finger, by itself, does not, without more, amount to fighting words or a true threat. Federal courts throughout the country have reached the same general consensus. In certain limited circumstances, however, when accompanied by other less expressive and more threatening conduct, raising the middle finger may constitute fighting words or a true threat not protected by the First Amendment.

At the end of the day, law enforcement officers should be mindful that flagrant flips of the finger may be lawful. Citizens should remember that, when letting the middle finger fly, whether in anger, protest, or just because you can, there may be unintended consequences, as one woman learned the hard way.

If you have any questions or would like more information please contact either Sara Brochstein at [email protected] or Kevin Stone at [email protected].

Study Finds No Significant Impact of Body Cameras on Police Conduct or Citizen Complaints

Posted on: November 13th, 2017

By: Wesley C. Jackson

In response to recent high-profile officer-involved shootings, many commentators are touting police body cameras as a way to keep police accountable. The hypothesis is that when police and citizens know they are being watched, they are more likely to behave civilly during confrontations. Specifically, body cameras are thought to deter officers from engaging in excessive force or other unprofessional conduct and to encourage citizens to be less resistant or combative when interacting with police.

But how does this theory hold up under examination? Not very well, according to a working paper discussing the findings of a recent controlled study of policing behaviors and outcomes in the Metropolitan Police Department of the District of Columbia. The study found that the use of police body cameras had no statistically significant impact on officers’ use of force, citizen complaints, policing activity, or judicial outcomes.

The study examined the effect of police body cameras on multiple variables as the D.C. Metropolitan Police Department began issuing cameras to its officers. Specifically, the study observed officers who were randomly assigned body cameras and compared those officers’ rates of use of force and citizen complaints to a control group of officers who did not receive cameras. The evaluation period ran for 18 months from June 2015 to December, 2016.

The paper’s authors concluded that as to use of force, citizen complaints, police activity, and judicial outcomes, the analyses “consistently point to a null result: the average treatment effect on all of the measured outcomes was very small, and no estimate rose to statistical significance at conventional levels.” In other words, the use of police cameras produced no measurable difference in police conduct, at least in this study.

What explains this unexpected outcome? One explanation is simply that body cameras do not change police or citizen behavior. Indeed, in the heat of the moment, the implications of a body camera will likely be the last thing on an officer’s or citizen’s mind. The researchers also posit that the results could be particular to the D.C. police: as the police force for the nation’s capital, the D.C. police may already be more disciplined than the average police force due to the increased scrutiny it receives and the officers’ frequent experience handling citizen interactions under pressure at inaugurations, protests, and other such events. Additionally, the results could be due to a “spillover” effect: officers who were not assigned body cameras may nevertheless have adjusted their conduct, knowing that other officers in the area may be wearing body cameras.

The researchers concluded that “Law enforcement agencies . . . that are considering adopting [body cameras] should not expect dramatic reductions in use of force or complaints, or other large-scale shifts in police behavior, solely from the deployment of this technology.” Even so, agencies should note that the study did not examine one important consideration in adopting body cameras: the effect additional video evidence will have on civil rights lawsuits alleging improper police conduct. Even if the use of body cameras will not produce department-wide improvements in police conduct, they could still be useful in defending officers and municipalities in civil rights lawsuits.

Police body cameras can also provide non-measurable benefits, such as streamlining internal investigations of citizen complaints and providing the appearance of police accountability to the community. That is to say, while this recent study does not establish that police body cameras have a measurable effect on policing, body cameras may nevertheless be a useful tool to departments for other reasons.

If you have questions about this topic or would like more information, please contact Wes Jackson at [email protected].