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Archive for the ‘Government Law’ Category

Statute of Limitations Tolled in California Amid Pandemic

Posted on: August 3rd, 2020

By: Matthew Jones

In response to the COVID-19 pandemic, California’s Governor Gavin Newsom issued a “state of emergency” for the entire State. In response, the California Judicial Council adopted several Emergency Rules to implement during the pandemic. In particular, Rule 9 states that all statute of limitations for civil causes of action are tolled from April 6, 2020 until 90 days after the state of emergency related to COVID-19 is lifted by the Governor. Therefore, if a party’s claim would have expired pursuant to the applicable statute of limitations during this timeframe, such claims are still very much alive. In regard to those claims, there is currently no deadline to file them since the “state of emergency” has yet to be lifted by the Governor. Once lifted, claimants will have six months to file their respective claims.

Additional Information:

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.**

Insurance Requirements and First Amendment Rights of Freedom of Speech and Assembly

Posted on: July 6th, 2020

By: Jessi Samford and Bill Linkous

There is no doubt that the world as we know it has changed dramatically this year, and the protests and marches amidst the global pandemic have been in the forefront of recent news. While some protests have focused on broader awareness campaigns of injustice and inequality, others are geared toward current events that stir up longstanding tensions in the United States. There have even been a few protests about the pandemic itself. 

In recent history, some states have imposed insurance requirements on groups planning rallies or protests at certain locations, which presents an important constitutional question which should be considered carefully now, more than ever, in our country’s divisive climate. Can a government make and enforce a rule requiring that insurance be provided to cover risk of injury to protest participants or bystanders that that does not violate the First Amendment of the U.S. Constitution? 

Iowa, for example, faced criticism three years ago for having a one-size-fits-all rule that any organizer of such an event at the state’s capitol had to obtain a liability policy of at least $1 million. The blanket rule on its face made no exception based on the size or length of the event, but it was not always enforced. One organizer regularly provided proof of insurance while others who could not afford the premiums proceeded anyway at the capitol as planned and without interference.

Special event insurance is not a new concept to the insurance industry, as many carriers are in the market to underwrite risks for short-term gatherings of all kinds—from an outdoor car show, farmers market, or festival to an indoor convention or even wedding festivities. The insurance would likely be based off commercial general liability (CGL) policy forms, which mainly address risks against bodily injury or property damage claims by others. In the context of protests on public property, it would likely be the venue organizers who would be required to supply the policy and proof thereof to obtain a permit for the special event, assembly, or protest.

What is unique about this concept in the context of a protest is that it would be held in a public space and a governmental entity would need to be cognizant of the First Amendment implications of requiring the protest organizer(s) to pay insurance premiums to exercise First Amendment rights to free speech and peaceable assembly.

The requirement to obtain a permit and pay a fee, such as for insurance, before authority is given for public speaking, parades, or assemblies in traditional public forums is generally considered by courts to be a prior restraint on speech. Forsyth County v. Nationalist Movement, 505 U.S. 123, 129 (1992). The term “prior restraint” is used to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur, including injunctions and restraining orders. Alexander v. United States, 509 U.S. 544, 550 (1993).  Although there is a “heavy presumption” against the validity of a prior restraint, the Supreme Court has recognized that in order to regulate competing uses of public forums, government may impose a permit requirement on those wishing to hold a march, parade, or rally.  Cox v. New Hampshire, 312 U.S. 569, 574-576 (1941). Such a scheme, however, must meet certain constitutional requirements. It may not delegate overly broad licensing discretion to a government official. Freedman v. Maryland, 380 U.S. 51, 56 (1965). Moreover, a permitting scheme controlling the time, place, and manner of speech must not be based on the content of the message, must be narrowly tailored to serve a significant governmental interest, and must leave open ample alternatives for communication.  United States v. Grace, 461 U.S. 171, 177 (1983).

A local government wishing to impose a permit and insurance requirement for public gatherings in a public forum should follow the guidelines laid down by the U.S. Supreme Court. First, neither the imposition of an insurance requirement nor the amount of insurance required can be based in any way on the content of any anticipated message. For instance, the amount of insurance required cannot be tied to the expected backlash that the message will cause among citizens. Second, the permit/insurance requirement cannot give overly broad discretion to the official who is designated to issue the permit. Only objective criteria should be used.  Perhaps the insurance requirement would kick in once a threshold number of participants in the gathering is reached or when the gathering is expected to last for a threshold period of time, and the level of insurance required could increase incrementally as the number of participants (or the length of the gathering) increases. Third, the insurance/permit regulation should require that the permit be automatically issued within a short period of time once the application is filed if the permit is not denied by the government official. Finally, there should be a quick and efficient method for appeal of the insurance requirement and permit issuance decision, because a system of prior restraint avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 559 (1975).

As local governments consider the impact that public assemblies can have on counties and cities today, and the costs that may arise due to such assemblies, we can expect more local governments to explore the potential for a special event insurance requirement for such events. As they consider such requirements, it will be important for them to consider how they go about doing so to comply with constitutional mandates.

If you have questions or would like more information, please contact Jessi Samford at [email protected] or Bill Linkous at [email protected].

The End of Qualified Immunity?

Posted on: June 18th, 2020

By: Christopher S. Lee

Since its genesis in Pierson v. Ray, the qualified immunity doctrine has never been shy of critics. If you were to talk to the late Justice William Douglas (the lone dissenter in Pierson) about the growing movement striving to abolish immunity at the forefront of American jurisprudence today, it is hard to imagine that he would be at all surprised. The remaining eight justices in Pierson would tell you how qualified immunity is a pinnacle of public service and that a “policeman’s lot should not be so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause and being mulcted in damages if he does.” Pierson v. Ray 386 U.S. 547 (1967). Yet, the intensity of the debates involving the qualified immunity doctrine has arguably reached its apex, and as of May 15, 2020, there were thirteen cert petitions pending in the United States Supreme Court urging the Court to reconsider the doctrine of qualified immunity. In light of the social movement sweeping the globe in relation to civilian-police relations, could this be the end of the road for qualified immunity?

The Supreme Court’s recent activity related to these thirteen cert petitions is instructive. Over the last few years, public interest groups, scholars, and lower judges have, metaphorically speaking, made a quiet whisper (at least in contrast to the raucous roar of the present movement) to the Supreme Court to reconsider the doctrine of qualified immunity. As a number of cert petitions continued to roll into the Supreme Court challenging the doctrine of qualified immunity, the Court nonchalantly, yet repeatedly rescheduled the conferences for these cases. It is certainly uncommon in recent history for the Court relist important petitions before deciding to grant or deny in the way it has done with these qualified immunity cert petitions. Many scholars and policy analysts speculate that this suggests the Court had been delaying these early petitions so it could consider them alongside several other high-profile cases raising the same issue.

At the May 15, 2020 conference, the Supreme Court ruled on three of the thirteen cases (the other ten were rescheduled to a later conference) denying cert in all three cases without comment from any of the justices. It was a move that stunned critics of qualified immunity, as Kelsay v. Ernst and Jessop v. City of Fresno are two of the three cases that were denied cert, and importantly, involved fairly liberal applications of qualified immunity in comparison to the thirteen cert petitions pending before the Court. Would this suggest that the Court was leaning towards upholding the doctrine in its entirety? Displaying the unusual continued delay on ruling on these cert petitions, the Court again delayed consideration of its qualified immunity docket on May 21, 2020, then again on June 4, 2020. It is hard not to believe that the tragic deaths of George Floyd, Breonna Taylor, and Ahmaud Arbery, and the social movements their deaths have fueled, have played a role in these delays and been weighing heavily in the minds of the justices. Also, what about the push from the legislative branch and bipartisan legislation that was presented to Congress earlier this month calling for “The End of Qualified Immunity?” Would not this be running in their minds as well?

It appeared to be a golden opportunity for the Court to steal the spotlight and exercise its inherent authority to weigh in the issue. Yet on the morning of June 15, 2020, the Supreme Court denied all of the remaining cert petitions raising the question of whether qualified immunity should be reconsidered; Justice Clarence Thomas was the only justice who expressed any desire to grant the cert petitions. Thus, the issue will not be heard in the Court’s term this October.

It is not entirely clear what motivated the Court to deny the petitions in the overwhelming fashion that it did. Citing to their prior criticisms of the doctrine, many anticipated that Justices Gorsuch, Sotomayor, and Ginsberg would also have been motivated to granted cert. It is impossible to know what is motivating the justices in their collective decision.  One hypothesis is that the Supreme Court, having seen the growing sentiment in Congress to pass legislation limiting and/or eliminating qualified immunity, decided to let the issue be resolved by the legislature. Perhaps the Court does not wish to further weigh into an issue that at its very core alleges the judiciary of having been too involved in policymaking in the first place.

With the judiciary out of the equation at least for the time being, all eyes will now turn to the remaining two branches of government. The sentiment around the oval office and chatter amongst advisors close to President Trump is that the president is unenthusiastic about legislation proposing to abolish qualified immunity. While proponents of qualified immunity unanimously view the rejection of the qualified immunity petitions as a win, we will nonetheless continue to monitor the activity of Congress and the ongoing debate as to qualified immunity in American jurisprudence.  If Congress does not act now, qualified immunity will likely be at the forefront during the Court’s next term.   

If you have questions or would like more information, please contact Christopher Lee at [email protected].

A Summary of the Executive Order on Policing and “Instances of Misconduct”

Posted on: June 18th, 2020

By: Jake Loken

Seeking to address the “instances in which some [law enforcement] officers have misused their authority, challenging the trust of the American people, with tragic consequences,” President Trump issued the Executive Order on Safe Policing for Safe Communities, on June 16, 2020, as a way to “redouble our efforts as a Nation to swiftly address instances of misconduct.”

The executive order contains four major points:

  1. Creation of a “credentialing body” to be used to certify law enforcement agencies seeking federal grant funding have certain policies in place, such as the prohibition of chokeholds, unless “use of deadly forces is allowed by law;”
  2. Creation of a database to share information related to excessive use of force;
  3. Request for the Attorney General and Secretary of Health and Human Services to develop “co-responder programs” where mental health professionals and law enforcement officers respond together to calls, and to create a report on “community-support models addressing mental health, homelessness, and addiction;” and
  4. Request for the Attorney General to propose legislation that “enhance[s] the tools and resources available to improve law enforcement practices and build community engagement.”

The executive order does not address qualified immunity, does not use the words “racism” or “bias” or comment on such issues, and does not address some of the vocal ideas heard at protests—such as the phrase “Defund the Police.”

Regarding some of the specifics of the four major points contained in the order:

First, the order focuses on the creation of a “credentialing body” that will be used to certify law enforcement agencies seeking discretionary grant funding from the Department of Justice have certain policies and standards. Notably, law enforcement agencies seeking grant funding should have “use-of-force policies [that] prohibit the use of chokeholds… except in those situations where the use of deadly force is allowed by law.” Other policies law enforcement agencies should have include: “training regarding use-of-force and de-escalation techniques; performance management tools, such as early warning systems that help to identify officers who may require intervention; and best practices regarding community engagement.”

Second, the order seeks the creation of a database “concerning instances of excessive use of force related to law enforcement matters.” The database is to be shared between law enforcement agencies and only “aggregated and anonymized data from the database” is to be made public. The database is to also include a way to track “terminations or de-certifications of law enforcement officers, criminal convictions of law enforcement officers for on-duty conduct, and civil judgments against law enforcement officers for improper use of force.” Only law enforcement agencies that submit information to this database can obtain discretionary grant funding from the Department of Justice.

Third, the order requests the Attorney General and the Secretary of Health and human Services to work to develop “co-responder programs” where social workers and mental health professionals are to “arrive and address situations together” with law enforcement officers. Also, the Secretary of Health and Human Services is requested to “survey community-support models addressing mental health, homelessness, and addiction” and summarize the survey in a report to the President within 90 days of the signing of the executive order. The report “shall include specific recommendations regarding how appropriated funds can be reallocated to support widespread adoption of successful models and recommendations for additional funding.”

Fourth, the order requests the Attorney General propose legislation that “enhance[s] the tools and resources available to improve law enforcement practices and build community engagement.” The legislation should assist law enforcement agencies with the implementation of the credentialing body, database, and co-responder programs as found in the order. The legislation should also provide for “improved use-of-force policies and procedures, including scenario-driven de-escalation techniques,” the retention and recruitment “of high-performing law enforcement officers,” law enforcement officers having access to confidential “mental health services,” and the creation of “programs aimed at developing or improving relationships between law enforcement and the communities they serve.”

If you have any questions about this executive order or other government-related matters, please contact Jake Loken at [email protected] or any other member of FMG’s Government Law group. 

California’s Proposed Education Budget Cuts May Lead to More Layoffs

Posted on: June 3rd, 2020

By: Matthew Jones

California Governor Gavin Newsome proposed a new budget, which includes cuts of approximately 8% to California’s education system.  Previously, California districts were not permitted to layoff teachers after mid-May.  However, if the proposed budget cuts are approved, districts will have the opportunity to layoff additional teachers through August 15th

Although most districts are requesting more funding and jobs, such a proposal may be necessary for those districts in poor financial condition.  These districts may be able to avoid bankruptcy or a state takeover but utilizing this new time frame for layoffs and furloughs. 

In response to the proposed budget cuts and potential extension of time for layoffs, the California Teachers Association plans to ask the Legislature to suspend the provision in the Education Code related to mid-summer layoffs.  Such a request has been approved twice by the Legislature: in 2002-03 and 2011-12.

Some believe that even if this budget is approved and the extension to mid-August takes effect, there is a small chance districts will turn to additional layoffs/furloughs.  However, given the current economic climate and the already struggling California education system, nothing is guaranteed and it is expected that the anticipated layoffs may spur new lawsuits.

If you have questions or would like more information, please contact Matthew Jones at [email protected].