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FMG Law Blog Line

Archive for June, 2013

Law Enforcement Officers Permitted To Take DNA Cheek Swabs From Arrestees

Posted on: June 7th, 2013

By: Ali Sabzevari

The United States Supreme Court has continued to expand the thought that bodily intrusions constitute a search under the Fourth Amendment.  The Supreme Court has applied the Fourth Amendment to police efforts to draw blood, scraping an arrestee’s fingernails to obtain trace evidence, and even to a breathalyzer test.  Recently, however, the Supreme Court applied the Fourth Amendment to police efforts to take “buccal swabs” on the inner tissues of a person’s cheek in order to obtain DNA.

On June 3, 2013, a divided (5-4) United States Supreme Court issued a decision, Maryland v. King, ruling that law enforcement officers are permitted to take DNA cheek swabs from people they arrest.  The Supreme Court held that when police officers make an arrest supported by probable cause to hold for a serious offense and bring the suspect to the police station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is a legitimate police booking procedure that is reasonable under the Fourth Amendment.  The Supreme Court compared this process to similar post-arrest police booking procedures, such as fingerprinting and photographing.

The majority is embracing the fact that the use of DNA technology can significantly improve the criminal justice system and police investigative practices.  Because of this decision, those who are arrested open themselves to having their DNA “taken and entered into a national database…rightly or wrongly, and for whatever reason.”  Justice Antonin Scalia, one of the dissenting justices, further stated that although extracting DNA from arrestees may solve extra crimes, “so would taking your children’s DNA when they start public school.”  Nevertheless, it is apparent that DNA identification is representing an important advance in the techniques used by law enforcement.

Expansions of Georgia’s Immigration Laws Slated to Take Effect on July 1

Posted on: June 6th, 2013

By: Kelly E. Moul


While Washington continues to debate immigration reform, Governor Nathan Deal recently signed HB 160 into law.  The signing was completed quietly and without public comment, but still stands as a meaningful extension of Georgia’s current immigration regulations.

Below is a breakdown of the changes made by HB 160, which are slated to take effect in less than a month, on July 1, 2013.

Section 1 expands the E-Verify requirements of Georgia’s prior immigration bill, HB 87, by modifying the definition of “contractor” to include every subcontractor, with the exception of attorneys.  This provision means that any private business which contracts with a state contractor will now be subject to the state’s mandatory E-Verify requirement, even if they have fewer than eleven employees.

Section 2 grants authority to the Immigration Enforcement Review Board (IERB) to make Immigration and Customs Enforcement’s (ICE) strict “IMAGE” program a requirement for Georgia employers.

While IERB has been relatively inactive since its inception via HB 87, even the theoretical power to enforce IMAGE on Georgia employers would represent a major shift in the law.

Section 6 eliminates the Federal and Georgia’s Attorney General’s definitions of “Public Benefits” and replaces it with “Public Benefits” Grants, Public and Assisted Housing, Retirement Benefits, and State Driver Licenses.  The intent is to bar undocumented foreign nationals from obtaining government services and welfare benefits.

Section 7 restricts the use of foreign passports without an accompanying Form I-94 proof of lawful status.  This provision will make it more difficult for undocumented foreign nationals to obtain welfare benefits, and to enroll their children in public school.

Section 8 mandates creation of a new immigration compliance system.  This mandate, however, is completely unfunded and thus unlikely to be enforced.

As noted by several commentators, this law passed hastily at the end of Georgia’s legislative session and is poorly drafted.  For instance, the bill repeals all prior laws, but does not state specifically what laws are being repealed.

HB 160 also confuses the legal terms “lawful immigration status” and “lawful presence,” which are two very discrete issues in federal immigration law.  The bill also treats the acceptance of a passport differently than the federal government.

HB 160 likewise lacks a severability clause.  Without such a clause, if any part of HB 160 is declared unconstitutional, the entire law could be struck down.

As with HB 87, both immigration rights groups and business leaders have threatened litigation to prevent HB 160 from taking effect on July 1.  We will provide further updates as the situation unfolds.

Survey Finds Voters View U.S. Legal System Negatively

Posted on: June 5th, 2013


By: Matt Foree

Along with the U.S. Chamber Institute for Legal Reform’s study finding the U.S. legal system to be the most costly, the ILR also provided the results of a new national opinion survey regarding the civil legal system.  That survey, which polled 800 voters across the country in April 2013, shows that voters view the civil legal system negatively and believe that it mostly benefits lawyers.

Specifically, the survey found that the vast majority of those polled believe that the number of lawsuits is a serious problem.  The survey also found that about three in five American voters received notice that they qualify for a class action lawsuit, but that only a small percentage (14%) received anything of meaningful value as a result of such lawsuit.   Furthermore, the vast majority of those polled reported a belief that there has been more abuse of the legal system over the last ten years, and that lawyers benefit more than the people on whose behalf the class actions are filed.  In addition, many of those polled believed that third party financing of lawsuits is not acceptable.

Legislative Changes

Posted on: June 2nd, 2013

By: Bart Gary


This year’s session of the General Assembly saw several new laws and amendments affecting the construction industry.

  1. Mechanic’s Lien Law

The General Assembly adopted a change to O.C.G.A. § 44-14-361 regarding the amount that may be claimed in a lien.  Effective July 1, 2013, the amount of a lien may be either (1) the amount due and owing to the claimant under the terms of its contract, subcontract, or  purchase order or (2) the unpaid value of the labor, material, and services provided by the claimant for the improvement of the real estate in the absence of a contract, subcontract, or purchase order.  In addition, interest on the principal amount due may be included in the claim of lien.  O.C.G.A. § 44-14-361(c).  The intent of the amendment is to overrule legislatively the court of appeals decision in 182 Tenth, LLC v. Manhattan Constr. Co.,730 S.E.2d 495 (Ga. App. 2012), in which the court held that a contractor’s general condition costs or overhead costs could not be included in a claim of lien because they did not constitute labor, material, or machinery that increased the value of the realty.

  1. Bid Bonds

The General Assembly amended several code sections concerning surety bonds for public projects to eliminate the requirement for a bid bond for responses to requests for proposals for projects where the price or project costs will not be a selection or evaluation factor, unless the State or local government specifically provides for a bid bond in the request for proposals.  See O.C.G.A. §§ 13-10-20(e) and 36-91-41.  These changes became effective upon signing of the Act by the Governor on May 6, 2013.

  1. Early Completion Incentives

The General Assembly amended two (2) sections of the statutes concerning public works, so that construction contracts may include both liquidated damages provisions for delay in project completion and incentives for early project completion when it is determined that there is value to the public body.  The terms of the liquidated damage provisions and incentive provisions must be established in the construction contract.  See O.C.G.A. §§13-10-70 and 36-91-32.  While liquidated damages clauses for delay are common, there was concern that incentives for early completion might run afoul of prohibitions against gratuities.  These changes became effective on May 6, 2013, when signed by the Governor.

  1. Qualification of Bidders

The General Assembly also enacted two new code sections applicable to the prequalification of bidders on state and local government projects.  Where contracts are awarded on sealed, competitive bids or proposals, no bidder shall be disqualified or denied prequalification or receive a lower ranking in the evaluation of a bid or proposal based upon a lack of previous experience with a job of the size of the bid or proposal, if the bid or proposal is no more than thirty (30%) percent greater in scope or cost from the bidder’s previous experience, the bidder has a reasonable amount of experience in performing the work for which the bid or proposal is sought, and the bidder is capable of being bonded by a surety which meets the qualifications of the bid documents.  In simple terms, if a bid or proposal is within thirty (30%) percent of the bidder’s previous experience in jobs, then the bidder’s proposal may not be disallowed or disqualified or “marked down” because the bidder has not had experience with a project of the size of the bid.  O.C.G.A. §§ 13-10-4 and 36-91-23, effective April 24, 2013.

Study Finds U.S. Legal System Most Costly

Posted on: June 2nd, 2013

By: Matt Foree

A study released by the U.S. Chamber Institute for Legal Reform, conducted by NERA Economic Consulting, shows that the American legal system is the world’s most costly, with liability costs of 2.6 times the Eurozone average. International comparisons of litigation costs can be found here.

The study compares liability costs (the costs of claims “resolved through litigation or other claims resolution processes”) as a “fraction of GDP across Europe, the U.S. and Canada.”  The study builds on prior research that relied on insurance data, which allowed measurement of “average country-level differences by comparing costs of companies with similar risk exposure and size in each country.”

The study found the following countries to have the highest liability costs:

  • U.S.,
  • Canada,
  • United Kingdom
  • Ireland
  • Italy

Among other things, the study determined that a common law (as opposed to a civil law) tradition and a large number of lawyers per capita are strong indicators of higher litigation costs, and that countries with higher costs have more frequent or more costly claims, or both.  Additionally, the study noted the potential indirect costs from litigation, including the uncertainty of litigation, which may deter investment in high-cost jurisdictions, affect companies’ borrowing costs and ability to invest, grow, and create jobs, etc.  Ultimately, as the study recognized, higher liability costs can reduce a country’s international competitiveness.  “America’s costly legal system inhibits our global competitiveness, and impedes our ability to grow our economy and create jobs,” said Lisa A. Rickard, President of the U.S. Chamber Institute for Legal Reform.  “Global businesses consider the cost of litigation in deciding where to locate.  These results underscore that our system puts us at a competitive disadvantage.”