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Archive for February, 2013

Supreme Court Update: Drug Dog’s Sniff is “Up to Snuff”

Posted on: February 21st, 2013

By: Brian Dempsey

In a unanimous decision, the Supreme Court concluded that an “alert” by a well-trained narcotics detection dog establishes probable cause for the search of a vehicle’s interior for further evidence of illegal drugs.  Florida v. Harris, Docket No. 11-817 (Feb. 19, 2013).  Emphasizing that probable cause is a practical, commonsense standard, the Court rejected the Florida Supreme Court’s rigid prescription that the government produce certain elements of proof in order to show that a canine’s sniff and alert is sufficiently reliable to constitute probable cause.  Rather, the opinion, authored by Justice Elena Kagan, allows a court to presume that a dog’s alert is reliable, so long as there is some evidence that the dog is certified after being tested in a controlled setting or that the dog has recently and successfully completed a training program which included such an evaluation.  This presumption, of course, can be rebutted by evidence showing that the training or evaluation was faulty or insufficient.  In sum, the Court instructed that the “question is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime.  A sniff is up to snuff when it meets that test.”

The Court has not yet issued its opinion in Florida v. Jardines, but the Court granted certiorari to decide whether a dog sniff at the front door of a suspected marijuana grow house by a trained drug dog is a search requiring probable cause and a warrant.  Because of the enhanced privacy expectations which attach to a private home (as opposed to a vehicle on public roads), we can expect that Court will apply a greater degree of skepticism and scrutiny to the investigative conduct at issue in Jardines.

Stay tuned.

NLRB Recess Appointments Invalidated

Posted on: February 18th, 2013

By: Anthony Del Rio

On January 25, 2013, the U.S. Court of Appeals for the District of Columbia held that President Obama’s recess appointments of three members to the National Labor Relations Board (“NLRB”) were invalid. Noel Canning Div. of Noel Corp. v. NLRB, No. 12-1115 (D.C. Cir. 2013). Due to the the invalidity of the appointments, the Board now lacks quorum.

Fully staffed, the NLRB has five members, three from the President’s party and two from the other party. A quorum of the Board is three. More recently, due to how contentious appointments have become, the President has filled vacancies temporarily through recess appointments.

In Noel Canning, the D.C. Circuit ruled that the Senate was not in recess on January 4, 2012, when the President attempted to make the recess appointments, and, as a result, the three attempted recess appointments were invalid.

The ruling leaves a single member on the NLRB, Chairman Mark Gaston Pearce (D). Since there is only one member, the NLRB lacks quorum. If the ruling stands, the NLRB could not issue any decisions until the Senate confirms NLRB nominees. Furthermore,  the validity of the NLRB’s decisions in the last year are now called into question.

There is little doubt that the Supreme Court will hear this issue on appeal. For more information, click here.

Disability or Criminal Behavior? ADA Claims Involving Law Enforcement

Posted on: February 7th, 2013

By: Brian Dempsey and Ali Sabzevari

Title II of the Americans With Disabilities Act (“ADA”) prohibits a “public entity” from discriminating against a “qualified individual with a disability” based upon that individual’s disability. An individual is deemed to have a disability in the context of the ADA if the individual: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such an impairment.

While individual officers will not be held liable under the ADA, counties and municipalities may be held liable for the discriminatory acts of its law enforcement officers if a plaintiff can show that: (1) he is a qualified individual with a disability; (2) he was either excluded from participation in or denied the benefits of a public entity’s services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) the exclusion, denial of benefit, or discrimination was by reason of the plaintiff’s disability.

Although application of the ADA to law enforcement activities varies widely from circuit to circuit, claims mainly arise under three legal theories: (1) wrongful arrest; (2) failure to reasonably accommodate; and (3) failure to train. The following is a brief discussion of each of these commonly employed legal theories and certain aspects that warrant particular attention.

Wrongful Arrest

Courts that recognize a wrongful-arrest claim under the ADA do so in situations where law enforcement officers have wrongfully arrested a qualified individual with a disability because they misperceived the effects of that disability as criminal activity. In other words, liability may arise where law enforcement officers misconstrue certain actions taken by a qualified individual with a disability as suspicious, illegal, or uncooperative behavior. For example, a person may appear to be intoxicated when she in fact has a disability that causes her to have slurred speech, loss of balance, become lethargic, or become unconscious. Other examples include instances where a person suffering from a seizure may be perceived as being belligerent or disturbing the peace, or where a person who is deaf may appear as uncooperative.

However, a wrongful arrest claim under the ADA is not without limits. A disabled individual whose actions were unlawful receives no immunity from arrest due to his disability. For instance, an officer’s conduct in attempting to subdue an individual who is suffering from schizophrenia is not a wrongful arrest when the individual threatens the officers with a knife. As a result, probable cause to arrest a qualified individual with a disability will also likely foreclose liability under a wrongful arrest theory.

Failure to Make Reasonable Accommodations

Under a reasonable accommodations theory, liability is generally imposed where law enforcement officers fail to reasonably accommodate a qualified individual’s disability in the course of investigation or arrest, causing the person to suffer greater injury or indignity than other arrestees. For example, arresting, interrogating, or jailing a deaf individual without providing interpretive services may give rise to liability. However, an exception to this theory exists where law enforcement officers are faced with exigent circumstances in the line of duty. Law enforcement officers are not required to make accommodations prior to securing the safety of themselves, other officers, and any nearby civilians. In that light, the ADA would not apply to a law enforcement officer’s on-the-street responses, regardless of whether the incident involves subjects with physical or mental disabilities, prior to the officer securing the scene and ensuring that there is no threat to human life. That being said, once the officer has secured the area and the threat to human safety has been eliminated, the officer is under a duty to reasonably accommodate the qualified individual’s disability. The Eleventh Circuit has further limited potential liability under this theory by holding in Bircoll v. Miami-Dade County that the duty to provide a reasonable accommodation is not even triggered until a specific demand for an accommodation is made.

It is important to note that a wrongful accommodations claim is not limited to the context of arrests, but applies to providing accommodations after arrests, such as during police transportation and subsequent interrogations. For instance, an individual who sustains injuries while being transported in a police vehicle that was not equipped with wheelchair restraints may have an ADA claim. Moreover, liability may also arise for failing to provide reasonable accommodations to disabled inmates in jails and prisons. For example, a county jail may be liable under the ADA for depriving a disabled inmate of a wheelchair. Also, a prisoner who is denied access to certain amenities or programs because of a medical history may have a viable claim under the ADA.

Failure to Train

An emerging theory of liability under the ADA is based upon a failure to train. Courts have not been entirely consistent in their approach to this claim. In some jurisdictions, liability has been imposed on a county or municipality’s failure to train its law enforcement officers for peaceful encounters with disabled persons where such failure necessarily causes discrimination. Some jurisdictions, on the other hand, have failed to directly address whether a failure to train claim is even recognized under the ADA.

Courts which recognize such a claim look to the legislative history of the ADA. The House Judiciary Committee stated, “In order to comply with the non-discrimination mandate, it is often necessary to provide training to public employees about disability,” and such “discriminatory treatment based on disability can be avoided by proper training.” When enacting the ADA, Congress found that individuals with disabilities continually encounter various forms of discrimination, including failure to make modifications to existing practices.

Regulations promulgated by the Department of Justice are also instructive. According to the preamble of the regulations that interpret Title II of the ADA, “[t]he general regulatory obligation to modify policies, practices, or procedures requires law enforcement to make changes in policies that result in discriminatory arrests or abuse of individuals with disabilities.” Moreover, under 28 C.F.R. § 35.105(a), a public entity shall evaluate its current services, policies, and practices that do not or may not meet the requirements of the ADA, and if necessary, the public entity shall proceed to make necessary modifications. And, according to 28 C.F.R. § 35.130(b)(7), a public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.

Courts that decline to recognize a failure to train claim do so by turning to the plain language of the ADA itself. These courts hold that when looking at the plain language, a violation of Title II of the ADA does not occur until there has been an exclusion or denial of participation in, or the benefits of, a public entity’s services, which manifestly occurs well after any training of the public entity’s agents. Another reason to foreclose such a claim is that acts or omissions involved in failing to train an officer to deal with individuals with disabilities may have a disparate impact on these individuals as a class, but can never by itself equate to a specific act of intentional discrimination against a particular individual.


While it would be unreasonable to expect law enforcement officers to diagnose or recognize every disability, to avoid potential liability, officers should make an effort to distinguish between the effects of a disability from criminal behavior. Moreover, law enforcement officers should be cognizant that unless they are faced with exigent circumstances entailing a necessity to secure the scene or eliminate a threat of harm, they have a duty to provide reasonable accommodations to a qualified individual with a disability. Lastly, although jurisdictions are not uniform, counties and municipalities should consider incorporating the requirements and objectives of the ADA in training materials and to modify policies, if necessary, to guide officers’ interactions with disabled individuals.

Keys to Effective Hold Harmless Agreements

Posted on: February 7th, 2013

By: Bart Gary

The Hold Harmless (Indemnity) Clause of a contract is like the lifeboats on a cruise ship — they just hang around until disaster strikes, and you hope they still work. Periodic review keeps them from becoming obsolete or worse. Indemnity simply means reimbursement, restitution, or compensation. Typically the indemnity provision applies in a three-way situation where a non-party suffers a loss or injury, whether damage to property or bodily harm or death, that arises from or relates to a contract between two other parties, wherein one party (called Party B) agrees to indemnify the other party (called Party A). You, as the party claiming the benefit of the indemnity agreement, will be Party A. The contract may be with a contractor for services including construction, renovation or repair, maintenance, management, cleaning or leases, to name a few, or may be with a supplier of goods such as inventory, machinery, equipment, or parts for manufactured products. Anyone who negotiates, prepares, or reviews such agreement should be aware of these finer points:


The agreement should include Party B’s obligation to defend, as well as to indemnify, Party A. The law recognizes a distinction between defense and indemnity, and a bare indemnity agreement does not require a defense (or payment of Party A’s attorney’s fees) against a claim. A suggestion: “Party B shall defend, indemnify, and hold harmless Party A….” If it is necessary for Party A to sue Party B for failing to defend or indemnify it, then the agreement should also provide for Party A to recover its attorney’s fees from Party B for such enforcement action.


A party may be indemnified for its own negligence, provided that the indemnity agreement expressly says that it covers the negligence by using the word “negligence” or similar language in the agreement.

Public Policy Considerations

Many states, however, have statutes that prohibit attempts to indemnify Party A from the consequences of his or her “sole negligence” in certain types of agreements, including those relating to the construction, alteration, repair, or maintenance of a building structure. Construction and renovation contracts and those for design services fall within this prohibition, but other agreements, such as real estate leases, property management or maintenance agreements, and others relating to the services for a building or real estate, may fall within the prohibition. To prevent an indemnity clause from becoming unenforceable under these statutes, a prudent person will include a disclaimer to the effect that nothing in the agreement should be construed to require Party B to indemnify Party A from the latter’s own, sole negligence.

Insurance Coverage

Even the tightest indemnity clause is only as good as the ability of Party B to honor it financially. Many general liability insurance policies may not provide coverage for “liability assumed by contract,” e.g., indemnity agreements. Coverage in the policies, however, can be obtained within an endorsement adding coverage for Party B’s defense and indemnity obligations, either by expressly referring to the indemnity agreement or on a blanket basis. You should verify that the other party has contractual liability coverage in its liability insurance policy, in addition to any other insurance coverages required by your agreement.


Indemnity agreements are often disfavored by the parties and even the courts due to their perception as being unfair. To alleviate or mitigate objection, you may consider making the indemnity proportional. For example, that Party B’s obligation to indemnify Party A is limited to Party B’s degree of fault or responsibility for the loss or injury. Parties are generally more willing to sign a proportional agreement. This concept is fairer, but it defeats the purpose of placing the burden of the loss entirely upon the other party. Nevertheless, a potential indemnity is to be preferred to no indemnity agreement at all.

DOL Issues Final Rule Implementing FMLA Expansions for Military Caregivers and Airline Flight Crew Employees

Posted on: February 6th, 2013

By: La’Vonda McLean

On February 5, 2013, the Department of Labor (“DOL”) issued its Final Rule implementing statutory amendments to the FMLA regarding leave for military caregivers and airline flight crews.  These statutory changes incorporate amendments made by the National Defense Authorization Act for Fiscal Year 2010 (“FY 2010 NDAA”) and the Airline Flight Crew Technical Corrections Act (“AFCTCA”).  The final rule also clarifies changes regarding the calculation of intermittent or reduced schedule leave.

Before the FY 2010 NDAA was enacted, military caregiver leave was limited to eligible employees who were the family members of current service-members with a serious injury or illness incurred in the line of duty on active duty.  The DOL’s Final Rule, however, expands military caregiver leave to eligible employees who are family members of certain veterans with a serious injury or illness incurred or aggravated in the line of duty on active duty and that manifested before or after the veteran left active duty.

The Final Rule expands the definition of serious injury or illness for a current service-member to include preexisting conditions that were aggravated by service in the line of duty on active duty.  The Final Rule also expands qualifying exigency leave to eligible employees with a spouse, son, daughter, or parent in the Regular Armed Forces.  Before the Final Rule, a qualifying exigency only included members of the National Guard and Reserves.

The DOL’s Final Rule also amends the regulations to implement the AFCTCA.  The AFCTCA established a special minimum hours of service eligibility requirement for airline flight crew-members and flight attendants that reflect the unique scheduling requirements of the airline industry.  The Final Rule modifies the FMLA’s existing rules so that airline flight crew-members and flight attendants are better able to qualify for coverage under the FMLA based on the hours of service eligibility requirement.

The DOL’s announcement is available here.