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Archive for the ‘Government Law’ Category

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].

GPS Tracking Devices – The Answer to Stopping High-Speed Pursuits?

Posted on: November 1st, 2017

By: Sun Choy

In the era of drones and artificial intelligence, it was only a matter of time before technology caught up to stopping high-speed pursuits. In a suburb of metropolitan Atlanta, a police department successfully deployed a GPS tracking device to terminate a pursuit and later arrest the fleeing suspect based on the information transmitted by the device. At a cost of $5,000 a piece, it may be cost prohibitive for many agencies. Even if available, many pursuits may still require immediate termination by PIT maneuver (Pursuit Intervention Technique) or spike strips to stop the danger posed by the fleeing suspect. While it remains to be seen how effective the GPS tracking device will be long term, it is encouraging to see technology used to mitigate the inherent dangers associated with high-speed pursuits.

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

Home Run for Analysis of Use of Force During Medical Emergencies

Posted on: October 31st, 2017

By: Kevin R. Stone and Sara E. Brochstein

I’m bad at baseball.  When I step in the batter’s box, I might as well have two strikes against me before the pitcher unleashes his first fastball.  For me, it’s no big deal; I’m destined to strike out anyway.  The Sixth Circuit, however, recognizes that’s no way to treat law enforcement officers faced with the difficult choice to use force in response to medical emergencies.

In determining whether a Fourth Amendment violation has occurred in excessive force cases, the evidence must demonstrate that the officer’s actions were “objectively reasonable” under the totality of the circumstances.  The Supreme Court has provided three over-arching factors to consider in this analysis: (1) the severity of the crime; (2) whether the suspect actively resisted or evaded arrest; and (3) whether the suspect posed an immediate threat.  (The Graham factors.)

When responding to a medical emergency, however, two of those factors usually don’t exist: no crime (strike one) and, by extension, no resisting or evading arrest (strike two).  Thus, the officer’s choice to use force may rest on a single factor, which the officer may have to assess and act on in a split second.  Acknowledging that the Graham factors are not exhaustive and that medical emergencies create unique challenges for law enforcement officers, the Sixth Circuit, in Hill v. Miracle, established a list of additional non-exhaustive factors to consider when determining whether an officer’s use of force is objectively reasonable in such situations:

(1) Was the person experiencing a medical emergency that rendered him incapable of making a rational decision under circumstances that posed an immediate threat of serious harm to himself or others?

(2) Was some degree of force reasonably necessary to ameliorate the immediate threat?

(3) Was the force used more than reasonably necessary under the circumstances (i.e., was it excessive)?

The court explains: “If the answers to the first two questions are ‘yes,’ and the answer to the third question is ‘no,’ then the officer is entitled to qualified immunity.  These questions and answers serve as a guide to assist the court in resolving the ultimate issue of whether the officers’ actions are objectively reasonable in light of the facts and circumstances confronting them.”

The Sixth Circuit’s opinion drives home the principle that rote application of the Graham factors may cause an unfair strike out.  Objective reasonableness requires an examination of the totality of the circumstances and deserves a careful, fact-specific assessment in each case.  Whether other circuits will hit home runs and also apply these new factors remains to be seen.

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

SCOTUS Affirms FMG Victory In First-Of-Its-Kind 11th Circuit Flash Bang Case

Posted on: October 10th, 2017

By: Wayne S. Melnick and A. Ali Sabzevari

Previously, we blogged on a first-of-its-kind summary judgment obtained by Freeman Mathis & Gary in a Section 1983 case involving allegations of excessive force based on the police’s use of “Flash Bang.”  The case was appealed to the 11th Circuit Court of Appeals and that court affirmed the lower court opinion finding this case of first impression was the first in the circuit to address Flash Bang usage; and as such, the officer was entitled to the qualified immunity granted by the district court because there was no clearly established law on point.

In a one-line order issued earlier this month, the United States Supreme Court denied plaintiff’s petition for certiorari thereby locking in the 11th Circuit victory as controlling precedent. Because the 11th Circuit provided a bright line test for future Flash Bang use, it is imperative that all practitioners defending law enforcement officers who deploy Flash Bangs (as well as those officers themselves) be familiar with the rules provided by the court going forward.

If you would like a copy of the 11th Circuit opinion or more information, please contact either Wayne Melnick at [email protected] or Ali Sabzevari at [email protected].

Repaying Old Debts – The Supreme Court Limits FDCPA Liability for Scheduling Time-Barred Claims in Bankruptcy

Posted on: October 9th, 2017

By: Matthew M. Weiss

Earlier this year, the Supreme Court handed a victory to debt collectors when it held that the scheduling of a time-barred claim in bankruptcy was not a violation of the Fair Debt Collection Practices Act (FDCPA).

In Midland Funding, LLC v. Johnson, Aleida Johnson filed for personal bankruptcy under Chapter 13 of the Bankruptcy Code in the Southern District of Alabama. Midland Funding, LLC (Midland) filed a proof of claim asserting a credit card debt of $1,879.71. Johnson’s last charge on the account was in 2003, more than 10 years before Johnson’s bankruptcy filing, even though Alabama’s statute of limitations on the collection of debts was six years. Johnson objected to the claim and it was disallowed. Johnson then brought suit against Midland seeking actual damages, statutory damages, attorneys’ fees, and costs for a violation of the FDCPA, 15 U.S.C. § 1692k. After the district court determined that the FDCPA was inapplicable and dismissed the lawsuit, the Eleventh Circuit Court of Appeals reversed the decision, and Midland appealed to the Supreme Court.

In a 5-3 decision (with Justice Gorsuch abstaining), Justice Breyer, writing for the majority, first determined that a claim under the Bankruptcy Code was a “right of payment”, and that a creditor has the right to payment of a debt even after the limitations period expires. The Court also noted that a claim does not automatically have to be enforceable. Further, the definition of claim under the Bankruptcy Code provided that the claim could be “contingent” or “disputed”. Additionally, the Court found that the running of the statute of limitations was meant to be asserted as an affirmative defense by the debtor after the creditor asserted a claim.

Turning to whether the filing of a time-barred claim was “unfair” or “unconscionable” under the FDCPA, the court distinguished bankruptcy from civil cases in which creditors were subject to FDCPA liability for bringing suit on time-barred claims because “a consumer might unwittingly repay a time-barred debt” in a civil case. The Court reasoned that unlike civil cases, the consumer initiates bankruptcy proceedings, and are unlikely to pay a stale claim just to avoid going to court. Additionally, the Court said that the presence of knowledgeable trustees and procedural rules provided additional protection to debtors. The Court also noted that by filing a stale claim that was subsequently disallowed, that claim would be forever discharged, removing the debt from the debtor’s credit report and “potentially affecting an individual’s ability to borrow money, buy a home, and perhaps secure employment.” For all of these reasons, the Court concluded that the filing of a stale claim in bankruptcy was not “unfair” or “unconscionable” under the FDCPA.

The Supreme Court’s decision in Midland Funding legitimizes a major tool of debt collectors, who now can freely assert time-barred claims in bankruptcy proceedings with the hope that both the debtor and the bankruptcy trustee fail to assert a statute of limitations defense. As Justice Sotomayor wrote in her dissent, because debt buyers assume that a certain percentage of old debt will be written off as uncollectible, the Supreme Court’s decision will likely make consumer debt a more valuable commodity based on the assumption that a greater percentage of that debt will be collected in bankruptcy proceedings. Sotomayor had specifically predicted that “debtor collectors may file claims in bankruptcy proceedings for stale debts and hope that no one notices that they are too old to be enforced.”

In light of the Supreme Court’s decision, bankruptcy debtors should be extra vigilant about reviewing claims filed in their bankruptcy cases to determine whether a statute of limitations affirmative defense can be asserted. Conversely, creditors should not become too comfortable because, even though the Supreme Court’s decision precludes FDCPA liability for filing time-barred bankruptcy claims, the Supreme Court expressly declined to extend its holding to creditors who assert time-barred claims outside of bankruptcy.

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