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Archive for the ‘Government Relations’ 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].

Will California Change the Statute of Limitations for Presentation of Minors’ Claims under the Government Claims Act?

Posted on: October 2nd, 2017

By: Owen T. Rooney

In J.M. v. Huntington Beach Union High School District, 2017 Lexis 2017, the California Supreme Court ruled that a minor plaintiff was required to comply with the time requirements for petitioning a court for relief under the Government Claims Act after a late claim was denied when the public entity failed to act upon the application.

On October 31, 2011 plaintiff J.M. suffered a concussion during a high school football game.  Plaintiff did not file a claim with the District within the six months as required by Government Code section 911.2(a). Almost a year after his claim accrued, he presented the District with a late claim application which was timely pursuant to section 911.4.  The District did not take any action on the claim.  Under Government Code section 911.6, if the public entity does not take any action on a late claim application, it is deemed denied on the 45th day after it was presented. Therefore, by operation of law, the late claim application was deemed denied on December 8, 2012.

On October 28, 2013 plaintiff’s counsel petitioned the Superior Court for relief to present a Tort Claim. Under Government Code section 946.6 (b) a petition for relief from the claims requirement must be filed within six months after a late claim application is denied or it is deemed denied by operation of law. The petition for relief thus should have been filed no later than June 9, 2013. The trial court denied the petition for relief. The Court of Appeal affirmed.

The Supreme Court rejected plaintiff’s argument that under section 911.6 (b)(2) the District was required to grant his late claim application and that this section superseded the “deemed to have been denied” language of section 911.6(c).   The Supreme Court  was able to reconcile these two provisions. In doing so, the Supreme Court did not suggest that a public entity should routinely ignore late claim applications and instead rely on the “deemed denied” language as a default position.  A public entity may fail to refuse to act for a number of reasons including there may be uncertainty as to when the claim accrued or the applicant’s status as a minor, the public entity may not have been able to complete its investigation or the public entity may have simply failed to act on the claim due to inadvertence.

The six-month limitations period in section 946.6 is mandatory.  The Supreme Court held it was plaintiff’s responsibility to petition the court for relief when the District failed to respond to his claim notwithstanding that they were required to grant it.

This decision provides clarity to the statutory construction of Government Code section 946.6. In short, despite the requirement that the minor’s late claim application be granted, a denial due to the public entity’s  inaction nonetheless starts the forty-five day clock.

Three of the Justices suggested that the Legislature address the “anomaly” created by the fact that a public entity does not have an obligation to provide the claimant with written notice that the application has been denied or that the six months to petition the Superior Court has started to run when the public entity  denied an application.

It will be interesting to see if the Legislature, in fact, addresses this issue.

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