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Archive for the ‘Coronavirus – Government’ Category

COVID-19 in Jails: A Case Study

Posted on: May 22nd, 2020

By: Wes Jackson

By now we are all familiar with the CDC’s recommendations for limiting the spread of COVID-19: “social distancing,” maintaining a distance of six feet from others as much as possible, avoiding large gatherings, and self-isolation if you exhibit symptoms of the disease or test positive, among others. As challenging as these practices can be for the general public, they pose a unique challenge to jail administrators who are now tasked with limiting the spread of COVID-19 amongst inmates tightly packed into closed places. All the while, jail officials must also maintain order and security in the jail while respecting the constitutional rights of inmates.

How should jails balance these competing interests and, perhaps more importantly, who gets to decide? There are no clear answers to those questions. Interestingly, though, the Eleventh Circuit Court of Appeals recently issued an opinion in Swain v. Junior that provides a helpful analysis.

In Swain, inmates at Miami’s Metro West Detention Center filed for a preliminary injunction and habeas relief against the jail administrator, arguing that the jail was not doing enough to stop the spread of COVID-19 between inmates. While it was uncontested that the jail had already undertaken many measures recommended by the CDC  to address COVID-19 in jail settings (you can read that guidance here), the inmates nevertheless asked the federal district court to issue an injunction requiring the jail to take various precautions. The district court agreed and ordered the jail to implement several specific practices to stop the spread of COVID-19 in the jail, including maintenance of six feet social distancing “to the maximum extent possible;” strict testing and PPE requirements, and new procedures for the provision of medical care, among others.

The jail then went to the Eleventh Circuit Court of Appeals to ask for a stay of the injunction. The Eleventh Circuit, applying the “deliberate indifference to a risk of serious harm” standard, found that the measures the jail had taken were constitutionally adequate and did not require an immediate injunction. Specifically, the Court of Appeals found that “the evidence supports that the defendants are taking the risk of COVID-19 seriously.” The Court also noted that local governments are in the best position to allocate resources in high-demand needed to prevent, test for, and treat COVID-19 amongst various local facilities, and the district court could not assume the role of “super warden” in ordering a particular allocation of those limited resources.

In short, the COVID-19 pandemic poses a novel challenge to jail administrators. At least for now, the Eleventh Circuit has granted one jail some latitude in how it addresses that challenge. The Eleventh Circuit’s decision is consistent with federal courts’ reluctance to micromanage correctional facilities in the absence of widespread constitutional violations.   

If you have any questions about local governments’ response to COVID-19, please contact Wes Jackson at [email protected].

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis.  Click here to view upcoming webinars.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at coronavir[email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

An Era of Un-Road-Tested Drivers: What Parents and Their Insurers Need to Consider In Light of Georgia’s Changes to the Licensing Process During COVID-19

Posted on: May 5th, 2020

By: Wayne Melnick and Janeen Smith

Georgia’s on-the-road driving test joins the ever-growing list of changes to life as we know it as a result of COVID-19.   A new generation of drivers will be hitting the roads in Georgia soon, and they will not have taken any practical on-the-road test to get their licenses.  On April 23, 2020, Governor Brian Kemp waived the requirement for on-the-road tests until the Public Health State of Emergency is terminated citing social distancing requirements as the rationale for the waiver.  According to news sources, the road-test waiver will also alleviate a backlog of up to 30,000 applicants waiting to upgrade their learner’s permits to provisional driver licenses.     

Driving applicants are not getting a free pass as they will still be required to to satisfy all other statutory requirements for obtaining a license, i.e., a passing grade on the written test on driving safety and law, a certificate of completion of a 30-hour driver’s education course (for 16-year-olds); and, 40 hours of supervised driving time (for 17-year-olds).  Applicants can take advantage of Georgia’s waiver of the on-the-road test until June 12, 2020 when the twice-renewed state of emergency expires.

Georgia’s waiver of the on-the-road driving test has received widespread media attention.  It has been heavily criticized to the extent the waiver relies on parents executing Driving Experience Affidavits certifying their children have enough experience to obtain a license.  To some extent, Georgia’s licensing process has always involved a degree of trust.  Whether Georgia’s group of drivers who skipped the on-the-road test are any less safe than their tested counterparts remains to be seen.  After all, sources show roughly 80% of applicants pass the over-the-road test during their first attempt. 

That being said, cutting out an independent third-party’s assessment of a young driver’s readiness for the road could nevertheless have serious liability implications for parents and their insurers.  Arguably, the waiver of an on-the-road test heightens the importance of a parent’s execution of the Driving Experience Affidavit as it is currently the only assessment of a young driver’s actual abilities.  It does not take much imagination to conceive of the liability ramifications for parents. 

Consider negligent entrustment, a liability theory predicated on a vehicle owner’s “actual knowledge” that the individual entrusted with the vehicle is either incompetent or habitually reckless.  A claim of negligent entrustment is always a fact-intensive inquiry.  But, Georgia parents with minors licensed during this period of loosened licensing requirements will likely face heightened scrutiny for their children’s accidents.   

How can parents minimize their exposure during these unprecedented times? And how can insurers help minimize their risk by alerting their insureds with soon-to-be-licensed teens? All things considered; the answer is much the same way as they would before.  Our recommendations are:

  • Lead by example and always practice safe driving habits;
  • Instill the importance of being observant.  Studies show 50% of driver-error crashes are caused by a lack of scanning surroundings, being distracted, or failing to reduce speed in response to other drivers on the road;
  • There is no substitute for practice.  The law requires your child to have 40 hours of practice, but you ultimately make the decision as to whether your child may need more practice;
  • Does your child think he or she is ready for a driver’s license?

Ultimately, there is no way to make your young driver (or yourself) liability proof.  However, there are many ways to minimize risk.  Georgia’s ditching of its on-the-road test could simply be a waiver of a technicality; or it could provide to be a breeding ground for creative liability arguments.  Our intent is to continue monitoring developments on this front and to keep you appraised of ways to minimize risk. 

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include real estate issues, business interruption losses, and more. Click here to view upcoming webinars.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

Requests for Compassionate Release in the Era of COVID-19

Posted on: May 4th, 2020

By: Curt Graham

Correctional facilities across the country are facing unique challenges related to the COVID-19 pandemic. Some facilities have already reduced inmate populations in an effort to curb its effects. Additionally, courts are receiving an unprecedented number of requests for early release or modified sentences. A recent opinion from the United States District Court for the Eastern District of Kentucky examined an inmate’s request for a compassionate release due to coronavirus concerns.

In United States v. Cornett, No. 7:10-2-KKC, 2020 U.S. Dist. LEXIS 68878 (E.D. Ky. Apr. 20, 2020), an inmate filed an emergency motion for immediate release and argued his correctional institution was not taking adequate steps to protect prisoners from the virus. His motion was denied, as the Court found the inmate had not exhausted his administrative rights under the First Step Act of 2018. The First Step Act permits prisoners to file a motion for compassionate release on their own (as opposed to the Bureau of Prisons filing one on their behalf), but only if the prisoner has first “fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or if 30 days have lapsed since the warden of the defendant’s facility received the defendant’s request to file a motion on his behalf, whichever is earlier.”). Finding the exhaustion requirements were jurisdictional, the Court rejected the argument that these requirements should be waived in light of the dangers posed by COVID-19.

The Cornett opinion emphasized that in these unsettling times, “the exhaustion requirement of the compassionate release statute is perhaps most important,” because the Bureau of Prisons (BOP) is better positioned than the courts to first assess issues such as a defendant’s health, the adequacy of the measures taken by a particular place of incarceration to address any health risks, the risk presented to the public by a defendant’s release, and the adequacy of a defendant’s release plan.” The Court also observed that the BOP has begun a review of all inmates who have COVID-19 risk factors to determine which inmates are suitable for home confinement.

Given the ongoing COVID-19 concerns, courts will undoubtedly be flooded with similar requests for early release. However, statutory exhaustion requirements may bar such requests before they are ever heard on their merits. 

FMG attorneys Wesley Jackson, Ashley Hobson and Curt Graham will be presenting a webinar on Wednesday, May 13, 2020 from 1:00 – 2:15 p.m. EST entitled “COVID-19 in Custody: Practical Tips and Liability Considerations.” They will be joined by Edward Sweeney of Sweeney Corrections Consulting. This webinar will offer an in-depth discussion of the CDC Guidance on Management of COVID-19 in Correctional and Detention Facilities and will address various legal considerations relating to COVID-19 in the correctional setting.

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include real estate issues, protecting business interruption losses, and more. Click here to view upcoming webinars.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

Stay at Home Orders Under Attack – What are the Limits and Rights of State Governments?

Posted on: April 22nd, 2020

By: Marc Finkel

Faced with the uncertainty of navigating through a global pandemic, governors throughout the United States have issued a series of executive orders aimed at slowing the spread of the novel coronavirus.  Many of these executive orders have placed restrictions on our daily lives from the closure of schools to the closure of restaurants, movie theaters, and barbershops.  Since the beginning of March, as the number of positive cases of the novel coronavirus began to increase in different parts of the United States, the frequency of additionally restrictive executive orders aimed at “flattening the curve” of the novel coronavirus has increased as well.  Due to the varying degrees of restrictions that have been placed on some of our freedoms, there has been a recent uptick in court challenges to several of these executive orders. 

A recent illustration of this has started playing out in the State of Kansas, where Governor Laura Kelly issued Executive Orders 20-18 and 20-25 that modified prior executive orders placing certain restrictions on public activities and mass gatherings to include a prohibition against in-person religious gatherings of more than 10 people.  On April 11, 2020, the Kansas Supreme Court upheld Governor Kelly’s limitations on such in-person religious gatherings on state law grounds.  However, recently, United States District Court Judge for the District of Kansas, Hon. John W. Broomes, granted a temporary injunction on behalf of the First Baptist Church and Calvary Baptist Church that enjoins Executive Orders 20-18 and 20-25 from being further implemented on U.S. Constitutional grounds. 

In First Baptist Church, et al. v. Governor Laura Kelly, No. 20-1102-JWB, (April 18, 2020), Judge Broomes determined that the Plaintiffs met the standard for the issuance of a temporary restraining order by finding that Executive Orders 20-18 and 20-25 were not facially neutral in the restrictions it placed upon in-person religious assemblies.  The Court primarily based its decision on the fact that religious assembly was previously considered an essential public activity under the first wave of executive orders issued by Governor Kelly to combat the novel coronavirus pandemic in the State of Kansas, and that Executive Orders 20-18 and 20-25 were issued specifically to place restrictions on the right of in-person religious assembly.  The Court also found that the restrictions on the right of in-person religious assembly were likely not narrowly tailored, because the safety concerns that serve the basis of Executive Orders 20-18 and 20-25 are not dissimilar to safety concerns with respect to other secular mass gathering activities deemed essential under prior executive orders issued by Governor Kelly (e.g., mass gatherings at airports).  The Court noted, however, that those other secular mass gatherings are subjected to less restrictive conditions under Executive Orders 20-18 and 20-25.  Furthermore, as this is a matter that concerns a limitation on a person’s First Amendment rights, even if only for a minimal period of time, the Court found that the Plaintiffs risk irreparable injury for the purpose of obtaining a temporary restraining order.

Hearing on a permanent injunction as to Executive Orders 20-18 and 20-25 is scheduled for April 23, 2020.  The Court recognized the novel coronavirus presents an “unprecedented health crisis” that places on Governor Kelly an “immense and sobering responsibility” to protect the lives of Kansans.  Therefore, the Court in granting the temporary restraining order, expressly stated that it would “not issue any restraint, temporary or otherwise, if the evidence showed such action would substantially interfere with that responsibility.”  Accordingly, it is unclear whether the Plaintiffs will ultimately obtain a permanent injunction as to the implementation of Executive Orders 20-18 and 20-25.  In fact, a reading of the Court’s decision granting the temporary restraining order suggests that a more facially neutral limitation on the right to in-person religious assembly may pass constitutional muster.  This is a critical matter worth following, as the Court’s decision on whether to issue a permanent injunction will likely serve as a roadmap for deciding constitutional challenges to similar executive orders throughout the United States.

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include returning to the workplace, business interruption coverage and more. Click here to view upcoming webinars.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

Federal Judge Refuses to Enjoin Kentucky Governor from Restricting Interstate Travel

Posted on: April 6th, 2020

By: Barry Miller

A federal judge has refused to halt enforcement of an order that directed Kentuckians not to travel outside the state for two weeks because of COVID-19.

Governor Andy Beshear issued the order on March 30. It makes exceptions for those traveling to meet work requirements, buy necessary supplies, seek health care, or provide care for the elderly or disabled.

Plaintiff Allison Alessandro sued the governor in the United States District Court for the Eastern District of Kentucky on April 2. She filed her motion for a temporary restraining order with her complaint.

That motion argued that the right of interstate travel is “virtually unqualified,” and because this constitutional right was being impaired, irreparable injury is presumed. Judge Gregory Van Tatenhove said Alessandro still must show that any harm to her is immediate. He said he desire to visit friends and family in Ohio failed to satisfy that requirement.

Ms. Alessandro resides in Campbell County, Kentucky, which is on the Ohio border.

Judge Van Tatenhove also questioned whether Alessandro had shown irreparable harm. Because Ohio has also restricted travel it was not clear that enjoining Beshear’s travel order would give her a remedy.

The order also discussed a balance of harms, saying that enjoining the order might substantially harm other citizens, particularly those more vulnerable to COVID-19. Typically, if a law is unconstitutional, there is no harm to others by enjoining it, Judge Van Tatenhove wrote. The judge stated his review was preliminary. “In-depth consideration of the constitutional issues at play will require additional briefing from the parties,” he wrote, noting that the Commonwealth had not yet briefed those issues. He scheduled a telephonic conference with the parties for Monday.

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include employment issues, the real-world impact of business restrictions, education claims and more. Click here to register.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**