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Archive for the ‘Government Law’ Category

New Potential SCOTUS Justice: Friend or Foe of Qualified Immunity?

Posted on: July 10th, 2018

By: Sara Brochstein

President Trump announced his decision to nominate Judge Brett Kavanaugh to fill the Supreme Court vacancy created by Justice Anthony Kennedy’s retirement.  Should he be confirmed, Judge Kavanaugh could have significant impact on the preservation of qualified immunity, which continues to come under fire of late.   Essentially, the defense of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Given the current climate with unending allegations of excessive use of force by police, the call for reconsideration of the expansive protection offered by qualified immunity has become widespread.  And whether officers remain entitled to qualified immunity under the current parameters of the doctrine has substantial effect on civil litigation outcomes and potential damage awards.

Such a hot button issue continues to present itself to the Supreme Court.  In fact, just one year ago, Justice Clarence Thomas wrote separately in the Court’s decision in Ziglar v. Abbasi, stating that in an appropriate case, the Court should reconsider its qualified immunity jurisprudence.   It will be interesting to see how the Court evolves in its decisions to uphold officers’ entitlement to qualified immunity, especially given continuing outspoken public perception on the issue.   However, if Judge Kavanaugh’s recent dissent in Wesby et al. v. District of Columbia et al. is any indication of his views of qualified immunity and the position he would take as a Justice, it appears qualified immunity could endure as a strong  defense given that the Supreme Court ultimately sided with the dissent.

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

To Shoot or Not to Shoot – The Ninth Circuit Says That Is The Question (for the jury)

Posted on: July 6th, 2018

By: Owen Rooney

On June 25, 2018 the U.S. Supreme Court denied certiorari in Estate of Lopez v. Gelhaus, arising out of the shooting in Sonoma County, California of a 13 year old who was holding a toy AK-47 gun.

In the mid-afternoon of October 22, 2013 two deputies for Sonoma County were on patrol in a high crime area with known gang activity.  No active crime was reported. They observed the child walking at a normal speed on the sidewalk with the “gun” pointed down. The deputies disagreed whether the child was holding the gun in his left or right hand.   One deputy chirped the siren briefly and activated the lights.  The deputies also disagreed whether the child looked over his shoulder in response to the chirp of the siren. After stopping, one deputy yelled “drop the gun” from a distance of approximately 65 feet.  The child did not drop the gun and rotated his body clockwise. As the child turned, one deputy saw the gun come around and shot and killed the child without issuing any additional warnings.  The orange tip on the toy gun that is required by federal law had been removed.

The child’s estate filed suit against Sonoma County and the deputy who shot the child for excessive force.  The deputy asked the court to dismiss the lawsuit based on qualified immunity.

The District Court denied defendants’ Motion and the Ninth Circuit affirmed.  The case primarily turned on the number of times that the deputies had shouted for the child to put down his “weapon” and to what extent Andy had pointed the gun at the deputies.  The Court of Appeal noted that one of the deputy’s perspective would be different depending on whether the child had turned to his right or left, a factual dispute that could not be resolved on appeal.  Of note, the District Court only concluded that the gun barrel “was beginning to rise” from its position of having been pointed straight down; thus, the Court opined it was unknown if this posed an imminent threat to the deputies.

As the dissent pointed out, the precise angle that the gun was pointed is “not material” to the qualified immunity analysis because an officer need not delay firing if a person reasonably suspected of being armed makes a furtive movement, harrowing gesture, or serious verbal threat.  The dissent further noted that the District Court seemed to create a spectrum as to how far a suspect can raise their weapon before an officer can use lethal force.

The Ninth Circuit  has a long history of being reversed by the Supreme Court so there are some observers who are surprised that this decision was left intact.  The next procedural step is a trial and one can surmise that additional appeals will follow the end of any jury trial in this case.

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

Supreme Court Ends Compulsory Union Payments for Government Employees – So What’s Next?

Posted on: July 5th, 2018

By: Brad Adler & Matt Weiss

On Wednesday June 27, the United States Supreme Court reached a landmark 5-4 decision in Janus v. American Federation of State, County, and Municipal Employees Council 31 wherein it ruled that the Constitution’s First Amendment prohibits public sector unions from collecting fees from non-union members.   While the scope of the impact of this ruling will be unknown for years, there is no doubt that Janus weakens the ability of public sector unions to raise money.

In Janus, an employee with the Illinois Department of Healthcare and Family Services sued the American Federation of State County, and Municipal Employees Council 31 (“AFSCME”) to challenge an “agency fee” that he was required to pay to the union under the Illinois Public Labor Relations Act.  The Act provided that, if a majority of employees in a bargaining unit voted to be represented by a union, the union was designated as the exclusive representative of all employees and, even though employees were not obligated to join the union, they were required to pay the agency fee, a percentage of union dues for “chargeable expenditures,” i.e., the portion of union dues attributable to activities germane to the union’s duties as a collective bargaining representative.  The agency fee excluded “nonchargeable expenditures,” which funded the union’s political and ideological projects.  This distinction between chargeable and nonchargeable expenditures was the framework created by the Supreme Court in its 1977 decision Abood v. Detroit Board of Education, 431 U.S. 209.

The Supreme Court elected to use Janus as a vehicle to overturn Abood and hold that the Illinois law that required nonunion public employees to pay an agency fee to a public union constituted a violation of their First Amendment right to free speech, even if the fees only consisted of chargeable expenditures.  The Court assessed the agency fees under an exacting standard, which required a showing that “a compelled subsidy must serve a compelling state interest that cannot be achieved through means significantly less restrictive of associational freedoms.”  Applying the standard, the Court declined to identify a “compelling state interest” and found that public-sector unions could no longer extract agency fees from nonconsenting employees.

The Court’s ruling in Janus very likely will have a direct effect on 5 million public employees in 22 states, including California, New Jersey, New York, and Pennsylvania, who are no longer required to pay agency fees for a union in which they are not a member.  However, the impact of this decision is less direct in states where agency fees and, in some cases, public sector collective bargaining, are either non-existent or prohibited.  Nonetheless, even in these states, the Supreme Court’s basic holding in Janus, that the government cannot compel its employees to make payments for causes with which they disagree, could be applied in a variety of other contexts such as mandatory contributions to government pension funds.

Whether the Supreme Court will expand on this newly identified First Amendment right of government employees and non-union members remains to be seen, especially in light of Justice Kennedy’s retirement announcement.  The one certainty is that public unions in cities and counties in nearly half the states in the country will no longer be able to require non-union employees to contribute union fees.  And very few doubt that this new legal reality will reduce (in some capacity) the power of public unions by shrinking their financial base of support and by potentially reducing their membership.

But lawmakers in some states already are rallying to pass statutes that will allow unions to limit the services they provide to only those employees that pay union dues.  As a result, it is important for employers to keep informed on any new Janus-induced union laws in states in which they operate.  In fact, in anticipation of an adverse ruling, on April 12, New York passed legislation that relieved unions from representing the interests of non-members in different areas.

The Janus decision is only the latest chapter in a long and unfinished story written about the constitutionality of certain activities of public sector unions.  More to come in the years ahead. . .

If you have any questions or would like more information, please contact Brad Adler at [email protected] or Matt Weiss at [email protected].

$10M Wrongful Death Verdict Against City of Albany Reversed on Sovereign Immunity Grounds

Posted on: June 26th, 2018

By: Wes Jackson

In a much-anticipated opinion, the Georgia Court of Appeals reversed a $10,640,000 trial verdict against the City of Albany on sovereign immunity grounds. Freeman Mathis & Gary attorneys Sun Choy, Jake Daly, and Wes Jackson represented the City as appellate counsel.

At trial, Sheryl Stanford and Wilfred Foster, as co-administrators of their son’s estate, argued that the City was partially responsible for the murder of their son at Brick City, a night club in Albany, after a fight that started in the club.  It was undisputed that, while Brick City was only licensed as a recording studio, the City allowed it to operate as an illegal nightclub even though it knew that the establishment was rife with drug use, illegal alcohol sales, and violence.  In an effort to overcome sovereign immunity, plaintiffs asserted the City maintained a “nuisance” by failing to shutter the illegal club.

After trial, a jury awarded the plaintiffs $15,200,000 in damages, apportioning 70% of the liability to the City. The jury only apportioned 10% of the liability to the owners and operators of Brick City, 13% to the actual murderer, and 1% each to seven participants in the brawl.

In reversing, the Court of Appeals concluded that plaintiffs cannot circumvent sovereign immunity by simply alleging that the City’s discretionary conduct amounted to the maintenance of a “nuisance.” While the plaintiffs may appeal to the Georgia Supreme Court, the case marks an important victory for the City of Albany and strengthens sovereign immunity protections for local governments in Georgia.

For additional questions about this matter or sovereign immunity under Georgia law, please contact Sun Choy ([email protected]), Jake Daly ([email protected]), or Wes Jackson ([email protected]).

Antisocial Media: Court Critical of Cop Capturing Curious Citizen’s Cellphone

Posted on: April 23rd, 2018

By: E. Charles Reed, Jr.

The Eleventh Circuit Court of Appeals has held that a police officer violates clearly established law by seizing a bystander’s cellphone at an accident scene in the absence of exigent circumstances.

With the rise of social media and the availability of devices with cameras, newsworthy events and potential evidence of criminal or civil liability can be captured by citizens with fortuitous timing and cellphones. While the methodology of capturing potential evidence has changed, constitutional principles associated with law enforcement’s gathering of that evidence has not. One law enforcement official recently learned this lesson the hard way in Crocker v. Beatty, 2018 U.S. App. LEXIS 8290 (Apr. 2, 2018).

In May 2012, Deputy Steven Beatty arrived at an accident scene involving an overturned SUV.  By the time Beatty had arrived, several bystanders, including a citizen named James Crocker, had taken photographs and video of the scene with their cell phones. Crocker captured images of empty beer bottles, the overturned vehicle and emergency personnel, but no images of the persons involved in the accident. Beatty approached Crocker, took his cellphone and instructed him to leave the area and wait for instructions about when his phone would be returned. Crocker refused to leave and offered to delete the footage in return for his phone. Instead, Beatty placed Crocker under arrest for resisting an officer without violence.

On appeal at the summary judgment stage, the Eleventh Circuit affirmed the trial court’s denial of qualified immunity for Beatty. First, the court rejected the argument that Beatty’s seizure was justified by exigent circumstances because Crocker was a non-suspect bystander with no motive to delete any photographs. The fact that Crocker’s cellphone could later be lost did not create an exigency.

More importantly, the Court held that the right to be free from warrantless seizures of personal property was established with “obvious clarity” in May 2012 such that Beatty should have known his conduct violated federal law. “Our case law has sent a consistent message, predating 2012, about the warrantless seizure of personal property and how exigent circumstances may arise. The technology of the iPhone simply does not change our analysis. To hold otherwise would deal a devastating blow to the Fourth Amendment in the face of sweeping technological advancement. These advancements do not create ambiguities in Fourth Amendment law; the principles remain as always. Because of this, Beatty is not entitled to qualified immunity.”

The Court did not address, and may not have been presented with, the policy implications for agencies responding to mass-casualty or critical incidents in metropolitan centers – where hundreds of witnesses may be present, each with different video clips taken at different times and from different angles.  However, the takeaway from this case is while technology may push products further and further into the future, the prudent law enforcement officer will apply the legal authority of the past to minimize being held liable for his or her actions.

Charles Reed is member of Freeman, Mathis, & Gary’s Government Section and regularly defends government employees in in civil rights cases.  He can be reached at [email protected] or by phone at 678-399-6351.