CLOSE X
RSS Feed LinkedIn Instagram Twitter Facebook
Search:
FMG Law Blog Line

Archive for the ‘Government Law’ Category

Does Shooting a Fleeing Suspect During an Escape Constitute a Seizure?

Posted on: February 7th, 2020

By: Sun Choy

It has been generally accepted that the intentional application of force constitutes a “seizure” for purposes of the Fourth Amendment.  But what happens if the intentional use of force does not result in terminating an escape?  This is the issue before the United States Supreme Court in Torres v. Madrid.  Police officers shot Torres, but she drove away and temporarily eluded capture.  In granting qualified immunity, the trial court concluded that she had not been seized to trigger the Fourth Amendment protections against the use of excessive force.  In affirming, the Tenth Circuit joined the D.C. Circuit and created a split with the Eighth, Ninth and Eleventh Circuits that do not require successful detention. The ACLU and the Cato Institute have filed competing amicus briefs.  The oral argument set for March 30 has all the makings for some interesting hypotheticals and legal banter.

Stay tuned for a synopsis of the argument.

If you have any questions or would like more information, please contact Sun Choy at [email protected].

California Police Deadly Force Statute: Law or Guidance?

Posted on: January 28th, 2020

By: Caleb Saggus

The California State Legislature recently enacted a criminal statute aimed at police officer use of force, which went into effect January 1, 2020  (Assembly Bill 392).  Prior California state law permitted an officer to use reasonable force to effect an arrest and deemed a homicide justifiable when necessarily committed in arresting a person who has committed a felony and the person is fleeing or resisting such arrest.  Case law deems such a homicide to be a seizure within the Fourth Amendment and, accordingly, requires the actions to be objectively reasonable.

AB 392 narrows the focus of this inquiry, at least for determining when an officer commits criminal homicide in the line of duty, and provides a reasonableness determination explicitly.  The Act provides that “a peace officer is justified in using deadly force upon another person only when the officer reasonably believes, based on the totality of the circumstances, that such force is necessary for either of the following reasons: (A) To defend against an imminent threat of death or serious bodily injury to the officer or to another person.  (B) To apprehend a fleeing person for any felony that threatened or resulted in death or serious bodily injury, if the officer reasonably believes that the person will cause death or serious bodily injury to another unless immediately apprehended.”

Although this law provides substantive parameters on police use of deadly force and utilizes a framework that generally can aid courts in deciding whether an officer has committed criminal homicide, the law may not significantly affect civil excessive force claims in California.

Most excessive force claims are brought under 42 U.S.C. § 1983 to vindicate a constitutional violation—generally the Fourth Amendment.  A state criminal statute cannot alter the meaning of the Fourth Amendment, and thus this Act should not have any bearing on the merits of a civil § 1983 excessive force claim.  Thus, the more prominent effect this Act might have is to serve as a model for other states to utilize in molding their own criminal statutes and best practices training.  Such statutes, while not providing a viable vehicle for plaintiffs to seek civil redress, might nonetheless be seen as a State’s view on the extent to which deadly force should or should not be used by police officers.  Therefore, the reach of these types of statutes might more practically be seen in a trickle-down to police officer training than in use of force civil litigation. If nothing else, AB 392 and other statutes like it represent the public’s shifting attitude towards police use of force and what constitutes “reasonable” force.

If you have any questions or would like more information, please contact Caleb Saggus at [email protected]

Section 1983 First Amendment Retaliation by Litigation: SOL without PC

Posted on: January 14th, 2020

By: Brent Bean

“When angry count to ten before you speak.  If very angry, count to one hundred.”  – Thomas Jefferson

In a case of first impression in the Eleventh Circuit, the Court held that in a Section 1983 First Amendment retaliation claim premised on the filing of a civil lawsuit, probable cause will generally defeat the claim as a matter of law.  See DeMartini v. Town of Gulf Stream, Case No. 17-14177 (11th Cir., Nov. 21, 2019).

A Section 1983 First Amendment retaliation claim requires the plaintiff to show (1) she engaged in protected speech, (2) the government’s retaliatory conduct adversely affected that speech and (3) a causal link exists between the conduct and the adverse effect.  As the Supreme Court observed, retaliatory animus is “easy to allege and hard to disprove.”  Nieves v. Bartlett, 587 U.S. ___, ___, 139 S.Ct. 1715, 1725, (2019).

There are two accepted methods of showing causation.  The first, typically used in the employment setting, is whether the retaliatory motivation was the but-for cause of the adverse action.  If not, or if the government would have taken the same action regardless of retaliatory animus, the defendant is not liable.  The second, typically used when the government uses the legal system to arrest or prosecute a plaintiff, is to ask whether there was probable cause for the arrest or prosecution.  If so, this will destroy the casual link.

In DeMartini, the plaintiff sued the Town of Gulf Stream, Florida (population 2000), for filing a civil RICO action against DeMartini and her business, CAFI.  The Town filed the lawsuit because CAFI had made thousands of public records requests designed to overwhelm the small town’s staff and lead to the recovery of attorney’s fees for non-compliance.

In the face of these requests, the Town received a sworn statement from an insider at CAFI attesting the requests were bogus and designed to lead to monetary recovery. The Town then engaged outside counsel to advise on merits of a lawsuit to stop the abuse.  The Town filed the RICO case, which was dismissed because the Town could show no predicate act.

DeMartini then sued the Town under Section 1983 for First Amendment retaliation, claiming the RICO lawsuit was unlawful retaliation designed to silence her right to seek redress, a First Amendment right.  She claimed public statements made at Town meetings confirmed the retaliatory animus for the lawsuit and the RICO lawsuit had no merit, as it was dismissed and affirmed on appeal.

The Eleventh Circuit considered whether a plaintiff asserting a claim for Section 1983 First Amendment retaliation based on the filing of a civil lawsuit is required to plead and prove an absence of probable cause for the civil lawsuit and whether the Town in fact lacked such probable cause.

The Court held that while the RICO lawsuit was ultimately dismissed, it was not without probable cause because the Town had sworn facts from an insider and had hired a lawyer who advised them on the law. So, the Court concluded the Town had a reasonable belief in the validity of the RICO claim.  The Court then held for retaliatory claims based on a civil lawsuit DeMartini had to show an absence of probable cause in the filing of the RICO lawsuit, which DeMartini could not do.

Governments seeking to take affirmative steps through civil litigation will be one-hundred times better served to first confirm their claims are supported by probable cause prior to filing a civil lawsuit.

If you have any questions or would like more information, please contact Brent Bean at [email protected].

To Pursue or Not to Pursue

Posted on: January 10th, 2020

By: Sara Brochstein

The City of Atlanta Police Department has announced that its officers will no longer engage in vehicular pursuits while it takes time to review its pursuit policies. This decision comes in the face of recent deadly crashes where suspects in stolen vehicles struck and killed motorists while fleeing police pursuits.

Police pursuits have often been the subject of controversy as the risks and benefits are constantly being weighed.  On one hand, pursuits have the potential to put innocent pedestrians and motorists in harm’s way.  In situations where the crime or violation is minor, the risk is even more unjustified.  Conversely, to disengage in pursuits altogether signals to people that arrest can be avoided by evading the police in vehicles.  This certainly has the potential lead to an increase in crime as Atlanta Police Chief Erika Shields acknowledged when announcing the City’s change in position.

Notably, the City’s new policy is intended to only serve as an interim policy while the department “work[s] to identify specific personnel and certain specialized pursuit training to enable the department to conduct pursuits in limited instances.”  However, as long as the no-pursuit policy remains in effect, the City of Atlanta may prove to be an instructive case study as to whether pursuits are worth the risk.

If you have any questions or would like more information, please contact Sara Brochstein at [email protected].

Open Government, Retaliation and Redress: Case Study from Florida

Posted on: December 6th, 2019

By: Michael Kouskoutis

Florida is well known for its robust public records law, where, upon receipt of a public records request, custodians of public records are required to promptly acknowledge the request, then permit the requested records to be inspected within a reasonable time. Unfortunately for custodians, Florida law does not define “reasonable time,” and awards attorney’s fees for unjustified delays or failures to respond. The 11th Circuit recently examined an interesting case involving a local government’s effort to protect itself against a devious scheme created to take advantage of these open government laws.

In DeMartini v. Town of Gulf Stream, et al., a not-for-profit corporation worked with a law firm to issue nearly 2,000 deliberately vague public records requests to a small Florida town, and then, when the town didn’t promptly or adequately respond, filed or threatened to file lawsuits against the town, demanding attorney’s fees and costs. The town, hemorrhaging attorney’s fees in defending against this scheme, decided to file a RICO action against the corporation. The RICO action made its way up to the 11th Circuit, where the Court, while troubled by the corporation’s scheme, denied the town’s motion for summary judgment on the basis that threatening to file litigation against a government could not trigger liability under RICO.

Soon after, the corporation’s director filed a § 1983 claim against the town, alleging that the town unlawfully retaliated against her when it filed the RICO suit to stop the records requests. In particular, the director argued that filing public records requests is a form of constitutionally protected speech. The trial court granted the town’s motion for summary judgment on the § 1983 claim, which after appeal, also made it to the Eleventh Circuit.

The Eleventh Circuit recently affirmed the grant of summary judgment. The Court reiterated that requesting public records and seeking redress from government is an activity protected by the First Amendment, but that because the town had probable cause to initiate the civil RICO case, the director’s § 1983 claim failed. The Court recognized that the town “had a legitimate interest and motivation in protecting itself, its coffers, and its taxpaying citizens.”

Robust open government laws maybe vulnerable to abuse, but as DeMartini illustrates, courts recognize a government’s ability to protect itself.

If you have any questions or would like more information, please contact Michael Kouskoutis at [email protected].