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Archive for May, 2015

Supreme Court to Determine Standard for Constitutional Excessive Force Claims by Pretrial Detainees

Posted on: May 18th, 2015

By: E. Andy Treese

The Supreme Court of the United States will soon decide the legal standard used to analyze claims of constitutionally excessive force asserted by pretrial detainees under 42 U.S.C. § 1983.  The case is Kingsley v. Hendrickson, docket no. 14-6368.

The Facts: Michael Kingsley was a pretrial detainee in Monroe County, Wisconsin who refused verbal commands to remove a piece of paper he had affixed to a light in his cell.  Detention officers handcuffed Kingsley and moved him to another cell so that jail staff could remove the paper.  Once Kingsley arrived at the new cell, officers tried to remove the handcuffs, but he allegedly resisted.  The officers tased Kingsley one time, for five seconds, then left the cell.  Other officers returned later and removed the handcuffs without incident.  Kingsley, who denied that he resisted the officers, filed suit under 42 U.S.C. § 1983, asserting that the officers used excessive force in violation of the Fourteenth Amendment.  The case went to trial and resulted in a defense verdict.  On appeal, Kingsley argued that the trial judge gave a jury instruction which incorrectly described the legal standard applicable to his claim.

Legal Background: With regard to excessive force claims, the Court has previously held that the Fourth Amendment protects suspects from the use of force which is objectively unreasonable, but that the claims of a convicted prisoner are analyzed under the Eighth Amendment and require an inquiry into the officer’s subjective intent, i.e. whether force was applied in a good faith effort to maintain discipline, or maliciously and sadistically to cause harm.  The Court has not expressly applied either standard to pre-trial detainees, and has held in other contexts that constitutional protections of a pre-trial detainee held by a state originate in the Due Process Clause of the Fourteenth Amendment, rather than the Fourth or Eighth Amendments.

The question posed by the Kingsley case is whether the standard for excessive force claims originating in the Fourteenth Amendment should mirror the Fourth Amendment’s objective reasonableness standard; whether it should involve the same inquiry into subjective intent involved in the analysis of Eighth Amendment claims; or whether the test should fall in the middle ground. The federal circuit courts have split on the issue.

Potential Impact: Local jails routinely house both pretrial detainees and convicted prisoners.  If the Court imports the Eighth Amendment standard to Fourteenth Amendment claims by detainees, the ruling is likely to have minimal day to day impact on local sheriffs and correctional officers.  If the Court adopts the Fourth Amendment standard, or even departs significantly from the Eight Amendment, local officials may find that they now have custody of prisoners with varying degrees of constitutional protection.  The logistical implications of such an arrangement are not yet clear.

Oral argument was held April 27, 2015.   We will report further after the ruling, which is expected in June.

New York City Law Restricts Use of Credit Checks for Employment Purposes

Posted on: May 12th, 2015

By: Behnam Salehi

On May 6, 2015, New York City Mayor Bill de Blasio signed into law a bill restricting employers’ use of credit background checks for employment purposes. The law amends the New York City Human Rights Law (“NYCHRL”) making it an unlawful discriminatory practice, with certain exceptions, for an employer to request or use the consumer credit history of an applicant or employee for any employment purpose. The law will not be limited to an employer’s hiring or termination decisions, but also makes it unlawful to use the consumer credit history in making any other decisions related to the terms and conditions or privileges of employment.

“Consumer credit history” is defined as an individual’s credit worthiness, credit standing, credit capacity or payment history obtained from (1) a consumer credit report; (2) a credit score; or (3) information provided directly by an applicant or employee (including information related to missed or late payments or collection items, bankruptcies, liens, or judgments).


The law does not prevent an employer from using consumer credit history for employment decisions in circumstances where the information is required by state or federal law, or by a “self-regulatory organization” as defined by the Securities Exchange Act of 1934. Additionally, employers will be permitted to request and use the consumer credit history of an applicant or employee for the following positions:

  • positions requiring security clearance under federal or state law;
  • law enforcement personnel;
  • positions requiring background checks by the Department of Investigation;
  • positions requiring use of an individual’s consumer credit history under state or  federal law;
  • non-clerical positions with “regular access” to trade secrets, intelligence information, or national security information;
  • positions having signatory authority over third-party funds or assets valued at $10,000 or more;
  • positions involving “a fiduciary responsibility to the employer with the authority to enter financial agreements valued at $10,000 or more on behalf of the employer”;
  • positions requiring to be bonded under city, state or federal law;
  • positions involving “regular duties that allow the employee to modify digital security systems established to prevent the unauthorized use of the employer’s or client’s networks or databases.”

Coverage and Penalties

Since the law simply amends the NYCHRL, it does not create any separate coverage or penalty provisions and therefore is governed by existing NYCHRL provisions. The NYCHRL extends to employers with four or more employees. Under the NYCHRL, a successful aggrieved applicant or employee may recover remedies including back-pay, compensatory damages, punitive damages, attorneys’ fees and costs, reinstatement and other equitable relief.

Guidance for Employers

In advance of the law’s effective date of September 3, 2015, New York City employers that use credit background checks should review and accordingly revise their policies to ensure compliance with the new amendment. Also, employers that use third-party companies to perform applicant or employee credit background checks should ensure their compliance with the law as well. Even under the limited exceptions described above, employers that continue to rely on credit background checks for employment purposes must comply with notice and disclosure requirements under the Fair Credit Reporting Act.




The Meaning of EEOC Conciliation

Posted on: May 8th, 2015

By: Jennifer B. Miller

Under Title VII, the EEOC must “endeavor to eliminate” alleged unlawful employment practices through informal means, such as conciliation, before it can file suit against an employer.  On April 29, the Supreme Court issued an opinion explaining that courts can review the EEOC’s efforts, and addressing what the EEOC’s conciliation efforts must look like.

Specifically, in Mach Mining, LLC v. EEOC, the Supreme Court held that in order to comply with its obligations, the EEOC must inform the employer of the specific discrimination allegations, describe what the employer has done, and describe which employees (or class of employees) have suffered.  Further, the EEOC must “engage the employer in some form of discussion,” to give the employer an opportunity to remedy the discriminatory practice. Unfortunately for employers, even if a court finds that the EEOC failed to meet this standard, the result is not dismissal of the suit—rather, the Supreme Court said that the proper remedy is to order the EEOC to conciliate.  Accordingly, this decision has been viewed as only a partial victory for employers.

If you have any questions about EEOC conciliation or the EEOC process in general, please contact any of the attorneys in our Labor and Employment practice group.

Homeowners Association Can Charge Fees for Short-Term Rentals

Posted on: May 5th, 2015

By: Nicholas A. Rogers

              While many localities throughout the nation struggle to regulate commercial short-term housing rentals through companies like Airbnb, a state appeals court recently upheld the authority of a California condominium association to charge fees to owners who rent their units for short-term occupancy.  In Watts v. Oak Shores Community Association, a California appellate court recently held that a common interest development, such as a homeowners association, is entitled to impose reasonable fees to cover the extra costs of vacationers and other short-term renters, who use common areas and other facilities more than residents as such users are “less careful…because they are not concerned with the long-term consequences of abuse.”  (Watts v. Oak Shores Community Association (2015) 235 Cal.App.4th 466.)

                Oak Shores Community Association is an 851-lot subdivision consisting of single-family homes located alongside Lake Nacimiento in northern San Luis Obispo County.  Only 20 percent of the homes are occupied by full-time residents.  In 2007, the Association had a study performed that determined each rental cost the Association $898.59 per year.  Increased costs from rentals arose from problems associated with parking issues, unfamiliarity with Association rules, increased noise, and abuse of subdivision amenities.  In response, the Association began charging members $325 a year to rent their property and additional use fees such as a $25 daily rental fee and a $125 per week fee for renters to bring watercraft into the community.  The rules also limited the number of watercraft that could be brought into the community during their stay.   The operating rule that created such fees was challenged by three members who claimed it violated state law that limits collection of homeowners’ association assessment fees to “the amount necessary to defray the costs.”  After a contentious trial, the trial judge found in favor of the Association and that the fees were reasonable charges.  The trial judge also ordered the owners to reimburse the Association for $1.18 million in legal fees and costs the incurred defending the suit.

                The appellate court affirmed the trial court’s judgment and attorneys’ fee award.  In doing so, the appellate court noted plaintiffs could have avoided the $1.18 million debt obligation had they declined to “bring the instant unmeritorious action and by paying the Association a few thousand dollars it was properly demanding.”  The appellate court also noted California law requires courts give homeowners associations’ leeway in decisions on property cost-sharing.  (Watts v. Oak Shores Community Association, supra, 235 Cal.App.4th at 473 [“Common-interest developments are best operated by the board of directors, not the courts.”].)

                Local and state governments throughout the nation continue to wrestle with issues relating to regulation of  short-term sub-rentals and companies like Airbnb or VRBO that connect short-term renters with homeowners.  This ruling is further evidence of the types of conflicts that can arise over housing governance, expenses and short-term rentals.    The opinion also provides helpful language regarding the scope of the rule of judicial deference by expressly expanding it to protect discretionary board decisions beyond decisions that affect ordinary maintenance of common areas.

Changes to Property Tax Appeals in Georgia

Posted on: May 4th, 2015

By: M. Michelle Youngblood

Taxes.  For most Americans, that word immediately brings to mind the 15th of April and the payment of federal income taxes.  But as property owners in Georgia are well aware, there is another kind of that can have just as much impact on the bottom line – ad valorem property taxes, usually due in the fall of each year.  Surprisingly, though, not every owner is aware that property values, on which ad valorem taxes are based, can be appealed.

Since 2009, the Georgia Legislature has made changes to the appeal process almost every year, and 2015 is no exception.  Amendments in previous years have added the options of having an arbitrator or hearing officer hear the appeal, instead of the Board of Equalization.  The latest round of revisions provide taxpayers with additional rights, including:

  • The right to interview an officer or employee authorized to discuss tax assessments relating to the valuation of the taxpayer’s property within 30 days of a written request;
  • The right to record that interview (at the taxpayer’s expense);
  • The right to record proceedings before the Board of Equalization or hearing officer (at the taxpayer’s expense); and
  • The right to enforce the interview requirement in Superior Court, and to recover reasonable attorney’s fee and expenses of litigation resulting from that enforcement, plus damages of $100.00 per occurrence.

The amendment also allows the parties to skip over the Board of Equalization hearing, and take the appeal straight to Superior Court, if the taxpayer and Board of Tax Assessors agree to do so in writing.  In addition, the parties are required to attend a settlement conference within 45 days of the notice of appeal, and before it is certified to Superior Court.  There are stiff penalties for failing to attend the settlement conference.  If the Board of Tax Assessors refuses to attend, then the taxpayer’s stated value is deemed to be the fair market value for the tax year in question, and can not be increased for the two (2) years following.[1]  If the taxpayer does not attend, he is not allowed to seek or be awarded attorney’s fees or costs of litigation in Superior Court.

Another change is a reduction in the cost to take a tax appeal to Superior Court.  Previously, the filing fee was the same charged by the Superior Court for any other civil action.[2]  Once the latest amendment takes effect, the filing fee is reduced to $25.00.

The changes enacted in the most recent amendments take effect on July 1, 2015.[3]  The entire text of House Bill 202 can be found at


[1] Except in certain specific circumstances specified in the statute.

[2] Which varies slightly from one county to another, pursuant to statute.

[3] Other changes contained on the same law do not become effective until January 1, 2016.