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Archive for the ‘Government Law’ Category

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].

Current Legal Issues Facing Supportive Housing Facilities

Posted on: December 2nd, 2019

By: Joseph Colette

FMG Partner H. Joseph Colette discussed “Current Legal Issues Facing Supportive Housing Facilities” at the Georgia Supportive Housing Association’s 9th Annual Supportive Housing Conference, held at the State Bar of Georgia from November 18th to 19th.

Supportive housing provides at-risk populations, including individuals with physical, mental, or developmental disabilities, veterans, and reentry individuals, with stable housing with needed support services, such as case management, housing, and reasonable accommodations, peer supports, education, training, and other services. Mr. Colette originally assisted the Georgia Supportive Housing Association (“GSHA”) in obtaining its non-profit 501(c)(3) status. The GSHA is a membership network of non-profit housing developers, service providers, statewide agencies and organizations, corporations, associations and individuals with a shared goal: strengthening housing resources in the State of Georgia. The vision of the GSHA is to have a Georgia where individuals with disabilities can choose the housing and supports they need to thrive, obtaining and ensuring their stability, autonomy, and dignity.

Mr. Colette’s presentation included a historical overview of the Fair Housing Act of 1968, Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, and the U.S. Supreme Court’s decision in Olmstead v. L.C. Mr. Colette also discussed the evolution of these civil rights laws and insight into the variations in federal and statewide implementation and enforcement activity on the 20th anniversary of the Olmstead decision.

The Fair Housing Act of 1968 (“FHA”), which applies to landlords, realtors, mortgage brokers, insurance agents, zoning codes, etc., prohibits the discrimination in the rental, sale, advertising, design, insuring, and financing of dwellings, and in other housing-related transactions, based on membership in protected classes. The protected classes originally included: race, color, financial status, religion, sex/gender, and national origin. The FHA was amended in 1988 (see the Fair Housing Amendments Act of 1988 (“FHAA”)) to include disability as a protected seventh protected class.

Reasonable accommodations and modifications were also newly-established legal requirements of the FHA. A landlord could not unreasonably refuse to provide a reasonable accommodation of a rule, policy, or procedure to address the needs of a person with a disability, and could not unreasonably deny permission to a tenant to make a modification of the premises to address the needs of a person with a disability. Section 504 of the Rehabilitation Act of 1973, which imposes greater obligations than the FHA,  prohibits discrimination on the basis of disability in any program or activity that receives federal funds. The language of both the later enacted FHAA and the Americans with Disabilities Act of 1990 (“ADA”) are rooted in the Rehabilitation Act of 1973. Section 504 also requires recipients to make reasonable accommodations, including structural changes, to enable access to housing for people with disabilities.

The ADA provides federal civil rights protections to individuals with physical and mental disabilities and guarantees them equal opportunity in public accommodations, employment, transportation, state and local government services, and telecommunications. The integration of individuals with disabilities into the mainstream of society is fundamental to the purposes of the ADA. Title II of the ADA prohibits discrimination by public entities in services, programs, and activities on the basis of disability, and applies to all types of state agencies, counties, municipalities and cities, and executive, legislative, and judicial branches of state and local government.

The passage of the ADA resulted in a myriad of discrimination lawsuits, many of which went before the U.S. Supreme Court. For resolution of these cases, the Court was required to interpret the broad anti-discrimination provisions of the ADA in a variety of specific contexts while at the same time balancing such questions as states’ rights and the definition of disability. One such case was Olmstead v. L.C., 527 U.S. 581 (1999).

In Olmstead, the Supreme Court determined that individuals with disabilities had the right to receive supports in the community rather than in institutions when three conditions were met:

1) The treating medical professionals determined that a community setting was appropriate;

2) The person with a disability did not object to living in the community; and

3) The provision of services in the community was a reasonable accommodation.

All states were required to take steps necessary to serve individuals with disabilities in the community when the aforementioned conditions were met.

Virtually all of the cases after Olmstead involved attempts to place people from individual institutions into the community. The major legal controversies raised by these cases involved interpretation of what is referred to as the “fundamental alteration” defense. A public entity’s obligation under Olmstead to provide services in the most integrated setting is not unlimited.  Therefore, a public entity may be excused in instances where it can prove that the requested modification would result in a “fundamental alteration” of the public entity’s service system.  A fundamental alteration requires the public entity to prove “that, in the allocation of available resources, immediate relief for plaintiffs would be inequitable, given the responsibility the State [or local government] has taken for the care and treatment of a large and diverse population of persons with…disabilities.” See Olmstead, 527 U.S. at 604.

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

In the Driver’s Seat: Supreme Court Hears Oral Arguments in Kansas v. Glover

Posted on: November 11th, 2019

By: Rachael Slimmon

On November 4, the United States Supreme Court held oral arguments in the case of Kansas v. Glover.  The Court examined whether a police officer may conduct a traffic stop solely because the vehicle’s registered owner has a suspended license.  The case started in 2016, when a Kansas police officer ran the license plate on Charles Glover’s truck.  Mr. Glover had a suspended license, so the officer pulled over the truck.  At trial, the parties stipulated that the officer assumed the owner was the driver, and the officer did not testify.

The Fourth Amendment of the Constitution forbids “unreasonable searches and seizures.”  For traffic stops, longstanding precedent requires that police officers have “reasonable suspicion” of a crime before they can pull over a vehicle and conduct a traffic stop.

The Justices, particularly Justice Gorsuch, gave conflicting indications about their views during oral arguments.  Justice Gorsuch first appeared concerned that the officer did not testify about his training and experience.  Gorsuch indicated that this lack of officer testimony meant there were no facts behind the officer’s assumption that a vehicle owner is the vehicle driver, and no facts from which to draw reasonable suspicion.  Later, however, Justice Gorsuch opined that requiring an officer to testify and say “magic words” about his training and experience would be formalistic and unhelpful.  Many of the Justices also seemed to disagree whether it was common sense to assume that a vehicle’s owner is the driver, with Justice Breyer appearing most willing to accept that assumption.

Mr. Glover’s attorney proposed multiple options for officers to gain additional evidence before pulling a car over: visually checking to see if the driver is similar in age and gender to the vehicle owner, following the car to wait for another traffic violation, and using statistical studies.  Multiple Justices questioned the wisdom and practicality of these other measures.

If the Court finds the traffic stop unconstitutional, Kansas v. Glover could impose minor or significant changes to law enforcement practices.  Justice Alito summed up the main issue: “What you are proposing is either a trivial decision or a revolutionary decision. It’s a trivial decision if all who’s lacking here is a statement [of the officer’s training and experience] … It’s a revolutionary decision if in every case involving reasonable suspicion there has to be a statistical showing or an examination of all” the additional evidence that Mr. Glover’s attorney proposed.

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

Municipalities Continue Winning at Georgia Court of Appeals

Posted on: October 31st, 2019

By: Sun Choy and Wes Jackson

Last week the Georgia Court of Appeals issued a favorable ruling for the City of Statesboro that will benefit municipalities (and their insurers) across the state. The decision included two advantageous decisions for municipalities concerning “nuisance” claims against cities premised on third-party criminal conduct and the extent to which purchasing insurance will waive a city’s sovereign immunity.

In Gatto v. City of Statesboro (Ga. Ct. App. A19A1408, A191409, Oct. 21, 2019), the parents of an underage college student at Georgia Southern University sued the City of Statesboro after their son was killed by a bouncer at a bar. The parents claimed the City had maintained a nuisance by failing to shut down the bar where their son was killed, even though it was widely known by the City and University students as an establishment that will serve alcohol to underage patrons.

The City asserted multiple defenses to this claim, the two most important being (1) a City cannot be liable under a theory of “nuisance” for third-party crime; and (2) the City did not waive its sovereign immunity by purchasing liability insurance because a specific endorsement in its policy provided that the policy would not cover claims for which the City would otherwise be entitled to sovereign immunity.

As to the “nuisance” defense, Freeman Mathis and Gary attorneys Sun Choy, Jake Daly, and Wes Jackson had recently secured a reversal of a $10.6 million trial verdict against the City of Albany on strikingly similar facts. (City of Albany v. Stanford, 347 Ga. App. 95, 815 S.E.2d 322 (2018); see also prior blog posts here and here.) In Gatto, the Court of Appeals relied on Stanford to unanimously hold that cities cannot be liable for criminal conduct on private property under a “nuisance” theory because the “nuisance exception” to sovereign immunity only applies to “takings” claims of property, not to claims for personal injury or loss of life. The Court of Appeals’ decision in Gatto marks an important win for municipalities across the state, as it reinforces the Court’s decision in Stanford and, as a unanimous decision, creates binding precedent on this issue.

In a case of first impression, the Court also ruled favorably for the City on its sovereign immunity defense based on an interpretation of an insurance policy immunity endorsement. In Georgia, municipalities can waive their sovereign immunity on certain claims by purchasing liability insurance. To preserve cities’ sovereign immunity, some carriers have been issuing policies with an endorsement that effectively states the policy does not provide coverage for any claims for which the City would otherwise have sovereign or governmental immunity. Before Gatto, these endorsements and the extent to which they allow a city to retain its sovereign immunity had never been tested at the Georgia Court of Appeals or Supreme Court. However, the Court of Appeals held in Gatto that such endorsements are enforceable and, where the language of the policy expressly provides that it will not cover occurrences when sovereign immunity applies, the policy would not operate to waive sovereign immunity.

Gatto, then, marks two important and favorable developments for municipalities in Georgia. For additional questions about this case or sovereign immunity under Georgia law, please contact Sun Choy ([email protected]) or Wes Jackson ([email protected]).

California Attempts to Change Standard of Liability for Use of Force Claims

Posted on: August 29th, 2019

By: Sara Brochstein

Earlier this month, California enacted a new measure that goes into effect in 2020 altering the use of deadly force standard for law enforcement officers. The law was originally introduced in response to the March 2018 shooting of Stephon Clark in Sacramento.

The new standard dictates that the use of deadly force is acceptable only when it is “necessary in defense of human life” and no other alternatives are available.  And in determining whether deadly force is necessary, officers are required to evaluate each situation in light of the particular circumstances of each case and use other available resources and techniques if reasonably safe and feasible to an objectively reasonable officer.

This is a departure from the federal standard of whether the officer’s use of deadly force was “objectively reasonable” as addressed by the Supreme Court in Tennessee v. Garner (1985) and Graham v. Connor (1989).  However, the new law fails to set forth a specific definition of “necessary,” which would leave interpretation to the courts on a case-by-case basis. Thus, while many view the new standard as “heightened,” it remains to be seen whether it will yield different results.

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