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Archive for the ‘Government Law’ Category

Supreme Court Disapproves “Provocation Rule”

Posted on: June 5th, 2017

By: E. Charles Reed, Jr. & Edwin A. Treese

The Supreme Court held in Graham v. Connor that an officer making an arrest may only be held liable for the use of force which is objectively unreasonable in light of the totality of the circumstances. Until recently, however, the Ninth Circuit added a wrinkle to this analysis by adopting the “provocation” rule, which permitted recovery for the otherwise constitutional use of force, where an officer intentionally or recklessly provoked a violent confrontation and where the provocation itself was a constitutional violation.

The provocation rule has been sharply questioned outside the Ninth Circuit, prompting the Supreme Court to take up the case of Los Angeles County, Cal. v. Mendez, which our colleague Wes Jackson blogged about in detail here. In Mendez, a pair of Los Angeles County sheriff’s deputies made a warrantless entry to a shack while looking for an armed fugitive. They startled the shack’s occupants, one of whom grabbed what appeared to be a rifle. The deputies, afraid for their lives, opened fire and shot both occupants of the shack. Both survived, but one occupant had their leg amputated below the knee because of the shooting. As it turned out, neither occupant was the armed fugitive the deputies were looking for, and the “rifle” was in fact a BB gun. Both occupants filed suit. Following a bench trial, the trial court held that the officers violated the Fourth Amendment by entering the shack without a warrant and without properly “knocking and announcing” their entry, but were entitled to qualified immunity on the latter claim. As to the excessive force claim, the trial court found that the defendants had not used objectively unreasonable force because, when they opened fire, they were confronted with a subject who appeared to be armed with a gun and they were afraid for their lives.

In most circuits, that would have ended the analysis. In the Ninth Circuit, not so much. Although the trial court concluded that the officers had not violated the Graham standard, it applied the Ninth Circuit’s provocation rule and found that the officers were liable for excessive force based on their earlier Fourth Amendment violation arising from the entry into the shack. The trial court awarded a total of approximately $4 Million in damage to the two victims. The Ninth Circuit subsequently affirmed based on the provocation rule – but also held that “basic principles” of proximate cause would support liability because it was foreseeable that the officers would encounter an armed homeowner when they “barged into the shack unannounced.”

The Supreme Court granted certiorari to address the limited question of whether the provocation rule is consistent with its excessive force jurisprudence – and has now held that it is not. The Court disapproved the provocation rule because it improperly conflated the excessive force analysis of Graham with the analysis of separate and distinct Fourth Amendment claims. Put simply, the Court held: “[t]hat is wrong.  The framework for analyzing excessive force claims is set out in Graham. If there is no excessive force claim under Graham, there is no excessive force claim at all. To the extent that a plaintiff has other Fourth Amendment claims, they should be analyzed separately.” Having disapproved the rule, the Court remanded the case back to the Ninth Circuit for further consideration.

Two issues in the case are noteworthy. First, the Court expressly declined to rule on an argument that the “totality of the circumstances” analysis required by Graham should include, as one of the “circumstances”, analysis of any prior unreasonable conduct by police. The Ninth Circuit and/or the trial court may therefore choose to revisit the original determination that the force used by the officers was, in fact, objectively reasonable. If they do, it would seem that a proper application of Graham should support an argument that the officers were entitled to qualified immunity.

Second, the Court instructed the Ninth Circuit to reconsider its proximate cause analysis, by focusing on whether the failure to obtain a warrant from the outset proximately caused the shooting. This may open the window for the Ninth Circuit or trial court to keep the case alive. We will continue to monitor the case for significant developments in the future.

For any questions, please contact Charles Reed at [email protected] or Andy Treese at [email protected].

“Accio Dismissal!” – 11th Circuit Rules K-9 “Officer” Draco Cannot Be Sued

Posted on: May 31st, 2017

By: Wayne S. Melnick

Last week, the Eleventh Circuit Court of Appeals took up the plight of Draco – not the wizarding nemesis of a certain lightning-bolt-shaped scared boy, but a Gwinnett County Police Department now-retired Belgain Malinois. In affirming the ruling of the district court granting dismissal to “Officer” Draco, the Eleventh Circuit determined that Georgia law does not provide for negligence liability against dogs.

After Bat-Bogey Hexing the claims made against the human officers (because, let’s face it, those are nowhere near as interesting), the court turned to the question of whether the claims against Draco were viable. As the court noted, if it could not determine that the claims were not viable, then it would have to determine if Draco could claim official immunity and how!

In examining Georgia precedent, the unanimous court quickly determined that the codification of negligence, by its express terms, provides that only a person may be held liable for breaching a legal duty. Even the statutory definition of person (which includes non-people such as corporations, firms, etc.), did not provide any basis for such a claim. In fact, the court was even able to cite to its own precedent interpreting the First Amendment that a cat had no right to free speech because it could not be considered a person.

Finally, the court noted that even if there was any ambiguity about whether a dog could be sued, the creation of such a right would also create an abundance of practical problems such as: how to serve Draco, how Draco could retain legal services (short of Legilimency, of course), how to apply official immunity defenses to Draco for the claims made against him in his individual capacity as a public employee, and if he were found liable, how could he be expected to pay damages?

In the end, the court ruled in favor of Draco as if he had quaffed a potion of Felix Felicis. As for plaintiff’s claims?  They were as dead on appeal as if struck by Avada Kedavra itself.

For any questions, please contact Wayne Melnick at [email protected].

Georgia Supreme Court Upholds Awarding City Legal Fees Under OCGA 9-15-14 Despite Fees Being Borne By City’s Insurer

Posted on: May 3rd, 2017

By: A. Ali Sabzevari

The Georgia Supreme Court issued an important ruling regarding the payment of fees under OCGA 9-15-14. The case is LONG et al. v. CITY OF HELEN et al. Additional Party Names: Lesia Long, Water Park Properties, LLC, No. S17A0642, 2017 WL 1548561, at *1 (Ga. May 1, 2017).

In this case, plaintiff appealed an award of attorney’s fees to a city pursuant to OCGA 9-15-14, contending that the award of fees was improper because those fees actually were borne by the city’s insurer, not the city itself. The Court disagreed: the fact that fees were “borne by the party’s insurer, a friend or relative, or some other non-party does not preclude an award of those fees and expenses under OCGA § 9-15-14.”

The key point of law here is that it doesn’t matter whether an insurance company or any third party actually paid the bill. If a lawsuit is ruled frivolous against a party, that party is entitled to collect a judgment for sanctions. Had the Supreme Court found otherwise, the decision could have significantly impacted cases where insurance coverage is involved.

For any questions, please contact Ali Sabzevari at [email protected].


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

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].