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Archive for the ‘Government Law’ Category

Three Years After Ferguson Shooting, Litigation Trudges Forward

Posted on: August 10th, 2017

By: Wesley C. Jackson

bligThis week marks the three-year anniversary of the August 9, 2014 shooting of Michael Brown in Ferguson, Missouri. While the shooting sparked a national debate about officers’ use of force that continues to this day, one of the civil suits arising from the shooting is just now percolating through the federal court system. On July 25, 2017, the Eighth Circuit Court of Appeals affirmed a district court’s ruling that the shooting officer, Darren Wilson, is not entitled to qualified immunity based on Brown’s companion Dorian Johnson’s claims that Wilson used excessive force against the two when he seized them just before the shooting.

Johnson claims that Wilson, the Ferguson Chief of Police, and the City of Ferguson violated his Fourth Amendment right to be free from unlawful detention and excessive force when Wilson allegedly racially profiled Brown and Johnson pursuant to an unlawful pattern of policing condoned by the City and its police chief. After a federal district court concluded that Wilson was not entitled to qualified immunity based on these allegations, the Eighth Circuit Court of Appeals affirmed. The defense of qualified immunity generally protects officers from civil liability for actions taken in the scope of their duties so long as those actions do not violate a clearly established constitutional right. The Eighth Circuit concluded that the virtually unprovoked shooting—as alleged in Johnson’s complaint—amounts to a constitutional violation and thus denied Wilson’s qualified immunity defense.

The Eighth Circuit’s ruling should not be viewed as an indictment against the defendants. Because the defendants appealed a denial of qualified immunity at the early “motion to dismiss” stage of litigation, the court could only consider the facts as Johnson had alleged them. Thus, the Eighth Circuit’s ruling only means that Johnson will now be able to conduct discovery to develop evidence for use at trial that might support his allegations. But developing supporting evidence could be a challenge, as the U.S. Department of Justice has already evaluated most (if not all) of the available evidence and concluded in an official report that Johnson’s testimony concerning some of his most pertinent allegations is “inconsistent with the forensic and physical evidence.”

Even so, after the parties conduct discovery, Wilson will be able to assert the qualified immunity defense again through a motion for summary judgment before Johnson’s claims can be presented to a jury. Thus, while the public reaction to the Ferguson shooting was swift, Johnson’s case demonstrates the slow pace of civil rights cases in federal courts. Three years after the shooting, Johnson is just now able to begin the discovery phase of litigation. And at the end of the discovery phase, he will undoubtedly face additional dispositive motions and appeals before he has a chance at trial.

For more information about qualified immunity and civil rights claims, contact Wes Jackson at 770-818-4246 or [email protected].


Governor Deal Signs House Bill 146 Firefighter Cancer Insurance Coverage

Posted on: July 14th, 2017

By: Pamela F. Everett

On May 4, 2017, Governor Deal signed House Bill 146 to amend Georgia Code Section 25-3-23 to provide cancer insurance coverage to fire fighters. This Bill, which becomes effective January 1, 2018, requires that all Georgia cities, counties and private companies with legally organized fire departments purchase and maintain cancer insurance coverage for firefighters.

In 2010, the National Institute for Occupational Safety and Health (NIOSH) conducted a multi-year study of nearly 30,000 fire fighters from the Chicago, Philadelphia, and San Francisco Fire Departments to determine if there was a potential link between fire fighting and cancer. The study was a joint effort by researchers at NIOSH, the National Cancer Institute and the University of California at Davis Department of Public Health Sciences. The fire fighters in the Study showed higher rates of certain types of cancer such as digestive, oral, respiratory, and urinary cancers, than the general U.S. population.

As many of you will recall, there was an effort by the Georgia House and Senate during the 2015-2016 Session to adopt House Bill 216 which would have amended Georgia’s Occupational Disease Statute to add a new Code section 34-9-293. This amendment was an attempt to compensate firefighters through the Workers’ Compensation Act for cancer which manifested during the period in which the firefighter was in the service of the city or county. This Bill was vetoed by Governor Deal.

HB 146 provides insurance coverage to pay for claims for cancer diagnosed after having served 12 consecutive months as a firefighter with a city, county or private fire department. The types of cancer covered are blood, brain, breast, cervical, esophageal, intestinal, kidney, lymphatic, lung, prostate, rectal, respiratory tract, skin, testicular, thyroid, leukemia, multiple myeloma or non-Hodgkin’s lymphoma.

The statute, as amended, provides that insurance benefits shall include, at a minimum, the following:

– A lump sum benefit of $25,000.00 subject to limitations specified in the insurance contract and based on severity of cancer and payable to the firefighter upon submission to the insurance carrier or other payor of acceptable proof of diagnosis by a physician board certified in the medical specialty appropriate for the type of cancer involved that there are one or more malignant tumors characterized by the uncontrollable and abnormal growth and spread of malignant cells with invasion of normal tissue and that:

  • Surgery, radiotherapy, or chemotherapy is medically necessary;
  • There is metastasis; or
  • The firefighter has terminal cancer, is expected to die within 24 months or less from the date of diagnosis, and will not benefit from, or has exhausted, curative therapy.

– A lump sum benefit of $6,250.00 subject to limitations specified in the insurance contract and based on severity of cancer and payable to the firefighter upon submission to the insurance carrier or other payor of acceptable proof of diagnosis by a physician board certified in the medical specialty appropriate for the type of cancer involved that:

  • There is carcinoma in situ such that surgery, radiotherapy, or chemotherapy has been determined to be medically necessary;
  • There are malignant tumors which are treated by endoscopic procedures alone;
  • There are malignant melanomas; or
  • There is a tumor of the prostate, provided that it is treated with radical prostatectomy or external beam therapy.

– A monthly benefit equal to 60 percent of the member’s monthly salary as an employed firefighter with the fire department or a monthly benefit of $5,000.00, whichever is less.

– If the member is a volunteer, a monthly benefit of $1,500.00.

– The combined total of all benefits received by any firefighter during his or her lifetime shall not exceed $50,000.00.

No firefighter who is a member of more than one fire department shall be entitled to receive benefits on behalf of more than one of such fire departments.

It is imperative that all Georgia fire departments ensure that it has an accurate database that tracks all employees and volunteers to guarantee the proper payment of premiums or an adequate amount of self-insurance. The Georgia Firefighter Standards & Training Council (GFSTC) also has a database of all legally organized fire departments and certified firefighters. However, this database does not appear to be current.  The Association of County Commissioners of Georgia (ACCG) and Georgia Municipal Association (GMA) are recommending that every fire department, both public and private, contact GFSTC to provide all necessary updates.  Additionally, both ACCG and GMA are offering insurance programs to provide the required cancer insurance coverage.

If your city or county contracts with a private company to provide fire services, it is also important to ensure that the private company is still legally organized and listed on the Georgia Secretary of State’s website as an active company or corporation. Your city and/or county also will need to ensure that the private company provides cancer insurance to its employees and volunteers as required by O.C.G.A. §25-3-23. These contracts may need to be modified or updated to ensure compliance with the new law. If the private company fails to obtain the cancer insurance as required by law, the contracting city or county may be liable for the payment of any claims filed.

Additionally, GFSTC has been authorized to adopt rules and regulations as are reasonable and necessary to implement the provisions of this new Code section and to establish and modify minimum requirements for all fire departments operating Georgia. Be on the look out for new these rules.

For assistance in amending contracts with a private company that provide fire services, or in reviewing your existing policies and procedures to ensure compliance with Georgia law, please contact Pamela Everett at [email protected].

Justice Thomas Issues a Qualified Challenge to the Court’s Qualified Immunity Jurisprudence

Posted on: July 6th, 2017

By: Matthew Weiss

On June 19, the United States Supreme Court in Ziglar v. Abbasi, No. 15-1358 (June 19, 2017), declined to provide a federal Bivens action for constitutional violations arising from the detention of six foreign nationals in a federal detention facility in the months following the September 11, 2001 terrorist attacks.  Perhaps the most interesting dynamic to come out of the decision was Justice Thomas’ concerns for the direction of qualified immunity.

While in detention, the detainees alleged that they were deprived of many basic civil rights. After the detainees were removed from the United States, they asserted a claim under 42 U.S.C. § 1985(3), alleging a conspiracy to violate their equal protection rights by “agreeing to implement a policy” under which the detainees were detained in harsh conditions “because of their race, religion, ethnicity, and national origin.” Justice Kennedy, writing for the majority, immediately turned to the question of whether the claim was subject to qualified immunity. He assessed “whether it would have been clear to a reasonable officer that the alleged conduct was unlawful in the situation he confronted.” Based on this analysis, Justice Kennedy found that the named defendants would not have been certain that § 1985(3) was applicable to their conduct and were therefore entitled to qualified immunity.

Justice Thomas devoted the entirety of his concurrence to note his “growing concern with [the Court’s] qualified immunity jurisprudence.”

Justice Thomas expressed concern that the Court “had diverged from the historical inquiry mandated by the statute.” According to Justice Thomas, “instead of asking whether the common law in 1871 would have accorded immunity to an officer for a tort analogous to the plaintiff’s claim under § 1983, we instead grant immunity to any officer whose conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Justice Thomas noted that this standard was now applied “across the board” even though it is not rooted in the common law as it existed in 1871 when Congress passed 42 U.S.C. § 1985.  As such, he believes the Court’s recent precedent in the area of qualified immunity “represent[s] precisely the sort of free-wheeling policy choices that we have previously disclaimed the power to make” and that decisions about what immunities exist to statutory rights of action should be made by Congress and not the courts. Based on this concern, Justice Thomas implored the Court at a future date to “reconsider our qualified immunity jurisprudence.”

Time will tell whether Justice Thomas’s concerns about the Court’s qualified immunity jurisprudence are a “one-off” comment, or the basis for a future reexamination of how qualified immunity is applied. However, Justice Thomas’s concurrence reflects a belief by at least one Supreme Court Justice that the concept of qualified immunity has morphed from its original purpose and now does not encompass many actions by government officials that would have been subject to immunity under the common law of 1871. If this proposed qualified immunity standard were to gain traction with a majority of Justices on the Court, it would have the effect of expanding qualified immunity to encompass those actions that have been identified as new constitutional violations over the past 146 years. Although it is likely that Justice Scalia would have agreed with Justice Thomas’s originalist interpretation of this federal civil rights statute, it remains to be seen whether it will be embraced by Justices Roberts, Alito, or Gorsuch, the other members of the Court’s conservative wing.

For any questions, please contact Matthew Weiss at [email protected].

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].