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Archive for the ‘Government Law’ Category

Taser Offers Free Body Cameras to Every Agency in the United States

Posted on: April 6th, 2017

By: Wes Jackson

In an “electrifying” announcement on Wednesday, Taser changed its name to Axon Enterprise, Inc. and offered every law enforcement agency in the United States free body cameras for a year. Per the terms of the offer, each agency that agrees to the “National Field Trial” will receive an Axon Body 2 body camera for each of its officers, along with the necessary accessories and a one-year license to Axon’s digital evidence data storage on Evidence.com.

Axon’s CEO explained that the company decided to switch its brand name from the household name for stun guns to the moniker of its body camera line to reflect its evolution from a less-lethal weapons company to a “full solutions provider of cloud and mobile software, connected devices, wearable cameras, and now artificial intelligence.”

Law enforcement agencies should carefully consider Axon’s offer. While the offer would immediately provide a very useful tool to agencies and their officers, accepting the offer could require agencies to re-evaluate their policing and document retention policies and procedures. For instance, Georgia law requires agencies to retain body camera recordings that are a part of criminal investigation or show an auto accident, arrest, or use of force for 30 months—a period that exceeds Axon’s offer to store such footage at no charge for only one year. The terms of Axon’s offer state that Axon will provide agencies with all data its body cameras recorded at the end of the trial period. However, agencies should determine before agreeing to the trial whether they have the means and capacity to store that data at the end of the trial period and, if not, whether they are prepared to pay Axon for continued use of its digital evidence storage system to comply with applicable retention policies and statutes.

Axon’s aggressive business move will likely make body cameras standard equipment in many law enforcement agencies across the nation. Agencies should respond by ensuring that their policies and practices keep pace with this ever-advancing technology. If you have any questions about your agency’s policies or the use of police body cameras, please feel free to contact Wes Jackson at [email protected].

 

North Carolina Repeals Controversial Bathroom Law

Posted on: April 5th, 2017

By: Paul H. Derrick

The North Carolina General Assembly has voted to scrap the infamous HB 2 bathroom law. The repeal became effective immediately after being signed into law by Governor Roy Cooper.  In just four sentences, the new law got rid of HB 2 and, in a compromise that has angered advocates on both sides of the issue, mandated that local governments and state educational systems cannot regulate access to multi-user restrooms, locker rooms, or changing facilities until December 1, 2020.

Most workplaces will not be directly affected by the repeal, as the employment law provisions of HB 2 were substantially repealed in July 2016. This final repeal did, however, effectively reinstate the three-year statute of limitations for filing wrongful discharge claims under state law.  That filing period previously had been shortened to just one year.

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

Public Entities, Take Note: The Hat You Wear May Determine the Cross You Bear

Posted on: March 24th, 2017

By: Paul H. Derrick

Public entities – cities, towns, counties, public service districts – often wear many hats. On the one hand, they are governmental bodies that engage in activities that are discretionary, political, legislative, or public in nature and performed for the public good. Conversely, they sometimes act as proprietors and engage in activities that are commercial or chiefly for the private advantage of a more compact and limited community.

Surprisingly often, for example, public entities acquire ownership of dilapidated buildings and other properties in order to lease them out to private tenants as part of a downtown revitalization project or similar effort. When someone is later injured because of the run-down condition of the property, the question of whether the public entity/owner is liable may hinge on whether its ownership and maintenance of the property was a governmental function or a proprietary one.

If the former, then the defense of governmental immunity might foreclose the public entity from being found liable. If the entity was acting as a private proprietor, however, that defense would be out the window and the case could likely proceed as it would against any other building owner. Often, whether a public entity is acting as a governmental body or a proprietor comes down to what the state’s legislature has said about the particular conduct at issue.

If the legislature has designated an activity as either governmental or proprietary, the courts generally defer to that designation. In cases where the legislature has been silent, however, activities are typically found to be governmental when they can only be provided by a governmental agency or instrumentality.  In the example of public entities acquiring ownership of dilapidated buildings and leasing them to private tenants, that often means that other factors will be examined, such as whether the service (i.e., leasing) is one traditionally provided by a governmental entity, whether a substantial fee is charged for the service, and whether that fee does more than simply cover the public entity’s operating costs. The more strongly those factors make it look like the public entity is acting as a private proprietor, the less likely it is that courts will allow it to take advantage of traditional governmental immunity and other related defenses.  It may then be answerable to an injured party for any negligent act that may have caused injury and damage.

Public entities should be vigilant and exercise caution when it comes to taking on roles that might make them look like just another private proprietor. Even the most altruistic intentions can lead to the loss or impairment of important legal protections. Absent clear legislative direction, courts will usually look to the economic realities of any given situation, especially when someone has been injured. Remember, if it looks like a duck, walks like a duck, and quacks like a duck ….

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

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].