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FMG Law Blog Line

Archive for August, 2013

Get In Focus: Law Enforcement Departments Should Strongly Consider Body Cameras

Posted on: August 9th, 2013

By: Ali Sabzevari

For quite some time now, law enforcement departments have used dash-mounted cameras in patrol cars, and for the most part, they have been effective in preserving the events leading up to and during an arrest.  Several law enforcement agencies, however, are expanding to the use of body-mounted video cameras.

Take for instance the Scottsdale Police Department, which recently announced that it is starting to implement a new on-the-body video camera into its standard protocol for officers.  The department purchased 10 Axon Flex body cameras, which can be worn on hats, glasses or even collars.  Last year, the Oakland Police Department implemented body-mounted cameras, and the Warner Robins Police Department outfitted one of their K-9s with a camera that allowed for the handler to have a “dog’s eye view,” so to speak.

Although body cameras and software can cost thousands of dollars, some believe that when they are utilized properly, both the officer’s behavior and the subject’s behavior are better because they know that everything is being recorded.  In fact, a study by Cambridge University determined that the use of cameras not only improves behavior, but reduces use of force incidents by 59 percent and reduces complaints by a whopping 87.5 percent.

Clearly cameras prevent officers and the people they encounter from doing something they might later regret.  Cameras also provide a better range of evidence and a more consistent point of view.  These devices can also assist officers when writing their reports and assist their attorneys in the event a lawsuit is filed.

Although the benefits listed above are not exhaustive and the true effect still uncertain, police departments should strongly consider body cameras as standard equipment.  Perhaps doing so will better improve behavior on both sides of the badge, and at the same time, decrease the amount of civil lawsuits against counties, municipalities, and their departments and officers.

 

Senate Approves All Five NLRB Nominees

Posted on: August 8th, 2013

By: Anthony Del Rio

For the first time in several years, the National Labor Relations Board will be at full strength.    On July 30th, the Senate approved all five of President Obama’s nominees to the NLRB.  Up to this point, the NLRB has been limping along with only three (and sometimes fewer) members.  The limited number of Board members that the NLRB has been operating with has led to several challenges to the validity of their decisions.  However, now operating at full force, the NLRB’s decisions will no longer be subject to challenges on those grounds.

These appointments follow on the heels of President Obama’s failed attempt at controversial recess appointments.  The new Board will be made up of three Democrats and two Republicans.  Members of the labor community have very strong opinions on the new Board.

 

Tinkering With Tinker: How Much Can Schools Limit Students’ Provocative Speech?

Posted on: August 8th, 2013

By: Katie Dod

In the Supreme Court’s seminal case of Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503  (1969), the Supreme Court held that schools can impose restrictions on the speech of students so as to protect their educational mission, however, it was clear that neither “students [n]or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”  Since that time, the Supreme Court and lower courts have been grappling with the constitutionally protected boundaries of student speech.  The Supreme Court most recently spoke on the issue in 2007 when it held that schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use.  Morse v. Frederick, 551 U.S. 393 (2007).  For that reason, the Supreme Court found that the unfurling of a banner reading “BONG HiTS 4 JESUS” during a school function was not protected speech.

Recently, the Third Circuit Court of Appeals applied the standards of Tinker and its progeny (including Morse) to further define the boundaries of constitutionally protected speech of students.  B.H. ex rel. Hawk v. Easton Area Sch. Dist., 11-2067, 2013 WL 3970093 (3d Cir. Aug. 5, 2013).  Two middle school students were suspended from school for wearing bracelets reading “I ♥ boobies! (KEEP A BREAST)” on the grounds that the bracelets were lewd and offensive even though there was no evidence of disruption during school caused by the bracelets.  The Third Circuit, interpreting the Morse opinion in the most narrow way, applied the following standard:  (1) plainly lewd speech, which offends for the same reasons obscenity offends, may be categorically restricted regardless of whether it comments on political or social issues; (2) speech that does not rise to the level of plainly lewd but that a reasonable observer could interpret as lewd may be categorically restricted as long as it cannot plausibly be interpreted as commenting on political or social issues; and (3) speech that does not rise to the level of plainly lewd and that could plausibly be interpreted as commenting on political or social issues may not be categorically restricted.  The Third Circuit found that the “I ♥ boobies! (KEEP A BREAST)” bracelets fit into the third category as they were not categorically lewd and did comment on the important social issue of breast cancer.  In response to the school district’s expressed fear that students would use increasingly vulgar language to speak about political or social issues solely for shock value, the court noted that the first category of the standard protects schools against such a risk because plainly lewd speech can always be prohibited in schools.

If other courts follow the Third Circuit’s interpretation of Morse, it will provide some guidance to administrators about the boundaries of constitutionally protected student speech.  Reasonable minds may still disagree as to what constitutes “plainly lewd” speech or “political and social issues,” so it is likely this area will continue to spawn litigation for years to come.  For now, however, students in Delaware, New Jersey, and Pennsylvania can promote boobie awareness, if not illegal drug use.

Construction on New Georgia State College of Law Building Set to Begin

Posted on: August 6th, 2013

By: Stephanie Stewart

Georgia State has announced a date to begin construction on a new building to house their law school.  The groundbreaking ceremony is scheduled to take place on September 12, 2013 at 10:30AM.

The development is projected not only to boost the law school, but also that section of downtown Atlanta.  The new building is going to be located in central downtown, at the corner of Park Place and John Wesley Dobbs Avenue.  The area has been underdeveloped for years. Currently, it is only surface parking lots and a low-rise garage.  The new building will be located only 100 feet from the planned Atlanta Streetcar.

The building is projected to cost approximately $82.5 million and is designed to be a community center with a state of the art library and public clinics.  The new building is also set to house an arbitration center.   The arbitration space is expected to host arbitrations from all over the world and put Atlanta on the map as a commercial arbitration center.

The building could open to students and the community as early as 2015. Project partners include architects from SmithGroup and Stevens & Wilkinson, construction management from McCarthy and program management by Jones Lang LaSalle.

To read more details about the new downtown building, click here.

New Georgia Court of Appeals Case Affirms Spoliation Sanctions Against Plaintiff

Posted on: August 1st, 2013

By: Wayne S. Melnick

One of the largest areas of developing Georgia law in recent years is regarding spoliation of evidence and under what circumstances a court can and should sanction a party for allowing spoliation to occur.  Generally, spoliation refers to any party’s destruction or alteration of evidence.  Contrary to popular belief, sanctions based on spoliation of evidence are not available only to plaintiffs in a case, but are available to either party.  While we, as defense attorneys, often see spoliation being used as a weapon against the defense, often times, the plaintiff is the party in the best position to preserve evidence.  As a result, a plaintiff’s failure to do so can be used against him/her. When seeking sanctions against a plaintiff alleged to have spoliated evidence, a trial court will apply the same standards that are used to determine whether sanctions are appropriate when a defendant is alleged to have destroyed or altered evidence.

Although spoliation sanctions being applied to a plaintiff is rare in Georgia, it does happen.  Recently, the Georgia Court of Appeals affirmed the appeal of a defense verdict after the trial court found both that the plaintiff was responsible for the spoliation of evidence and also sanctioned the plaintiff with adverse instructions to the jury.  In Lee v. CNH America, LLC, 2013 WL 3388737 (Ga. Ct. of App. Case. No. A13A0696, decided July 9, 2013), the plaintiff found her husband trapped in a farm tractor three days after purchasing it new.  The case focused on a “height lift adjustment knob” that allowed part of the tractor at-issue to be instantly raised to its full height if the knob was loosened during operation.  Less than two months after the accident, but before the lawsuit was filed, defense counsel requested to inspect the tractor.  The inspection request was refused and the defense was not allowed to inspect the tractor until over two years later and four months after the widow filed her wrongful death law suit.  In the intervening period, the tractor was inspected by two consultants retained by the plaintiff and her son operated the tractor during the inspections.  Seven months before the defense was allowed to inspect the tractor, it was moved to an engineering firm in Florida and stored in unknown conditions and then one month before the defense inspection, it was again moved to a wrecker service in Alabama and stored in an enclosed building “that may not have had climate control.”

When the defense finally was allowed to inspect the tractor, the critical knob was rusted and stuck in place.  As a result, the knob could no longer be moved as it could when the tractor was sold as new.

Although the trial court denied a defense motion for summary judgment based on spoliation, the court did find that plaintiff had spoliated evidence and that sanctions were appropriate.  In determining that all factors to be considered pursuant to Georgia law for spoliation weighed in favor of applying sanctions against the plaintiff, the court charged the jury that a presumption arose against the party (plaintiff) who failed to preserve evidence necessary to contemplated or pending litigation.  In rejecting plaintiff’s argument that the sanction was inappropriate because she did not act in bad faith, the Court of Appeals affirmed that bad faith was not required to apply sanctions.

This case is a reminder that what is sauce for the goose is also sauce for the gander, and defense counsel should not hesitate to seek sanctions against a plaintiff when it was plaintiff that allowed for the destruction of evidence that is necessary to the defense of the case.