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Archive for the ‘LawLine’ Category

NLRB Focus on Employee Handbooks of Employers

Posted on: July 17th, 2015

By: Joyce M. Mocek

Over the last several months, the National Labor Relations Board (NLRB) has targeted employee handbooks and policies of both union and non-union employers, determining that their policies and procedures constitute “unfair labor practices.”   The NLRB continues to expand its interpretations of the type of actions that constitute such practices, recently holding that dress code, personal hygiene and social media policies in a car dealership’s employee handbook were “unfair labor practices.”

Under Section 7 of the National Labor Relations Act (NLRA) employees have the right to “self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection….”  Section 8 of the NLRA states that it shall be an “unfair labor practice” for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.”

On March 18, 2015, the NLRB issued Memorandum GC-15004, a 30 page document that included provisions of employee handbooks and policies with specific examples of language that it determined was a violation of Section 7 of the NLRA.  The NLRB applied a standard of what employees would “reasonably” believe to be an intrusion of their rights.   These decisions attacked language such as “Be respectful of others and the Company” and held that general provisions such as this to be unlawful because they could be considered to ban criticism or negative discussions.   Further expanding their reach, recently, the NLRB determined that a car dealership’s employees had a right to display union messaging and insignia in the workplace although the company’s handbook language prohibited such displays, and held that the company’s social media policy was too restrictive.

These decisions illustrate the continuing focus of the NLRB to target the employee handbooks and policies of both union and non-union employers, and the necessity to review handbook policies and procedures to ensure compliance with these requirements and decisions.


Official Immunity: Recent Georgia Supreme Court decision reaffirms need for specific directives before finding ministerial duty for public officers

Posted on: July 10th, 2015

By: Chuck Reed, Jr.

Last week, in Eshleman v. Key, 2015 WL 3936075 (June 29, 2015), the Georgia Supreme Court reversed the Court of Appeals’ denial of official immunity for an off-duty police officer whose police dog escaped from its kennel and bit a child. This reversal reaffirms that the presence or absence of specific directives will often be the turning point in analyzing immunity issues under Georgia law.

Eshleman was a canine handler with the DeKalb County Police Department and had a practice of taking her canine partner, “Andor,” home with her. Eshleman had warned her neighbor’s children to just stand still if they ever saw Andor outside the fence because Andor could perceive them as prey if they ran. One day, Eshleman had loaded Andor in a kennel in the back of her personal vehicle and, assuming the kennel door was secured, stepped away from the vehicle to retrieve some belongings. Andor saw the neighbor’s children playing nearby and escaped the kennel. When the child plaintiff attempted to run away, Andor chased him, latched onto his arm and took him to the ground. It was undisputed that the DeKalb County Police Department had no policies governing how to transport and secure canines in private vehicles, nor had Eshleman received any training on that topic.

However, in affirming the trial court’s denial of summary judgment, the Court of Appeals held that there was a genuine issue of material fact whether Eshleman violated O.C.G.A. § 51-2-7 regarding “vicious animals” and negligently failed to perform the ministerial duty of properly restraining Andor. Eshleman v. Key, 326 Ga. App. 883, 888-889 (2014). The Court of Appeals held that “Eshleman did not show that the act at issue in this case, restraining the canine by securely closing the kennel door, ‘called for the exercise of personal deliberation and judgment, which in turn entail[ed] examining the facts, reaching reasoned conclusions and acting on them in a way not specifically directed.” Id. at 887.

In reversing the Court of Appeals, the Supreme Court of Georgia held that while it was undisputed that Eshleman was acting in her official capacity in taking care of Andor, there was no evidence that she was engaged in a ministerial duty in doing so. The Supreme Court rejected the Court of Appeals’ citation to the general standard of care codified in O.C.G.A. § 51-2-7 as a ministerial duty for Eshleman holding that “in the context of official immunity [it] is not merely whether an officer owed a duty of care, but rather, whether the official owed a duty that is particularized and certain enough to render her duty a ministerial one.” Eshleman, 2015 WL 3936075 at *3. Since there were no standards governing how to properly restrain Andor, the Georgia Supreme Court found that the legal standards at issue required “an exercise of personal deliberation and judgment about what is reasonable in the particular circumstances presented.” Id. at 4.

While public employers have an interest in ensuring that their employees are properly trained in the procedures of their departments, Eshleman reaffirms that law enforcement and other public agencies should not inadvertently create liability through enacting specific directives concerning every area of their employee’s duties. The policy that provides instruction or grounds for discipline could also provide a basis for personal liability against that employee.

Supreme Court Defines Equitable Power of Courts in Approving Transfer of Firearms by Convicted Felons

Posted on: May 20th, 2015

By: Andy Treese and Charles Reed, Jr.

Law enforcement and other government agencies have been given considerable power in confiscating and otherwise prohibiting the use of property owned, used or possessed by persons suspected of criminal activity. What happens to guns owned by a person who lawfully owned them until he was convicted of a felony?  This week, the United States Supreme Court ruled unanimously that convicted felons may transfer their firearms to third parties by court order, when the court is satisfied that the transferee will not give the felon access to the firearms or allow the felon to direct or control their future use.

In Henderson v. United States, 575 U.S. ___ (2015), Henderson was charged with federal drug trafficking offenses. While his felony drug charges were pending, Henderson surrendered his firearms to the Federal Bureau of Investigation.  Henderson eventually pled guilty to the drug charges and, as a result, his firearms could not be returned to him due to his status as a convicted felon pursuant to 18 U.S.C.A. § 922(g). 18 U.S.C.A. § 922(g) provides, in relevant part, “it shall be unlawful for any person– who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”  Henderson requested that the FBI transfer the weapons to a friend who had agreed to buy them, but the FBI denied Henderson’s request giving as a rationale that such a transfer request operated as “constructive possession” in violation of section 922(g). Henderson sought an order from the United States District Court directing the FBI to transfer the weapons, but the District Court adopted the FBI’s rationale in denying the transfer request.  On appeal, the Eleventh Circuit also affirmed the FBI’s rationale for denying Henderson’s transfer request.

Recognizing a split in circuit decisions over whether section 922(g) prohibited a court from approving a convicted felon’s transfer request, the United States Supreme Court held that “when a court is satisfied that a felon will not retain control over his guns, §922(g) does not apply, and the court has equitable power to accommodate the felon’s request.” Citing the legislative purpose of section 922(g), i.e., to keep firearms away from convicted felons who might use the weapons irresponsibly, the Court rejected as overbroad the Government’s attempt to restrict the lawful owner of weapons to divest ownership only through transfer to a licensed gun dealer for sale in the open market.  The Court found that section 922(g) proscribed “possession” of a firearm, but did not proscribe “owning” a firearm. Because possession is only “one of the proverbial sticks in the bundle of property rights,” the Court held that what “matters here is not whether a felon plays a role in deciding where his firearms should go next…[w]hat matters instead is whether the felon will have the ability to use or direct the use of his firearms after the transfer.” Since neither the Eleventh Circuit nor the district court assessed whether Henderson’s transfer request would allow him to retain control over his weapons, the Court remanded the case.

While Henderson involves issues related to the proper analysis of firearm transfer requests under a specific federal statutory authority, this case is a reminder of the balance between individual property rights and the limitations of government as it relates to those property rights. Law enforcement agencies should continue to treat property seized during law enforcement operations as the personal property of the arrestee until directed by a court order otherwise.

“Yer Out!” United States Supreme Court Tosses 4th Pro Se in Forma Pauperis Request Holding that “Three Strikes” Provision Includes Cases Dismissed by a District Court and Pending on Appeal

Posted on: May 20th, 2015

By: Andy Treese and Charles Reed, Jr.

When Congress codified citizens’ access to courts regardless of their ability to pay costs, federal courts quickly became inundated with prisoner lawsuits.  Congress, in turn, enacted the “three strikes” provision in 28 U. S. C. §1915(g) which provides that “in no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding [in forma pauperis] if the prisoner has, on 3 or more prior occasions, while  incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” The United States Supreme Court held in Coleman v. Tollefson, 575 U.S. ___ (2015) that the “three strikes” includes cases dismissed by a district court and pending on appeal.

In Coleman, the plaintiff brought three federal lawsuits during his incarceration that had been dismissed on grounds enumerated in §1915(g). Following the appeal of his third dismissal, but before the appellate court’s ruling on that appeal, Coleman filed four new federal lawsuits between April 2010 and January 2011, and moved to proceed in forma pauperis in each one. The district court denied each of Coleman’s four in forma pauperis requests holding that “a dismissal counts as a strike even if it is pending on appeal at the time that the plaintiff files his new action.” The Sixth Circuit agreed with the district court and denied Coleman’s requests, albeit on different grounds.  The United States Supreme Court granted certiorari to resolve whether a dismissal of an in forma pauperis request on a statutorily enumerated ground counts as a strike while an appeal of that dismissal remains pending.  The Supreme Court held that it does.

The Court summarily rejected Coleman’s argument for an expansion of the word “dismissed” in the statute to include appellate activity by citing to the plain language of the statute, treatment of the word “dismissed” in case law and an analysis of congressional intent within the statute from a linguistic and practical matter.  The Court acknowledged that while there was a risk that a litigant that might find themselves wrongfully deprived of in forma pauperis status, that risk was “not great” since there were various remedies to ameliorate any adverse effects of the deprivation within the existing Federal Rules of Civil Procedure.

Serial litigants who file numerous frivolous in forma pauperis lawsuits waste defendants’ resources, the court’s time and impede the prompt resolution of cases.  As those litigants begin to feel the impact of this decision, the benefit to the judicial system will be felt through the weeding out of meritless claims.

Supreme Court Grants Qualified Immunity to Police Officers Involved in Encounter with Mentally Ill Woman, Declines to Address Whether ADA Applies to Arrests

Posted on: May 20th, 2015

By: Andy Treese and Charles Reed, Jr.

This week the United States Supreme Court declined to rule on the issue of whether the Americans with Disabilities Act requires law enforcement officers to provide accommodations to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody.  At the same time, the Court reversed the Ninth Circuit Court of Appeals and awarded qualified immunity to two San Francisco police officers forced to shoot a woman who charged them with a knife after they entered her home to take her into custody for a mental health evaluation.  .  The case is City and County of San Francisco v. Sheehan, 575 U.S. ___ (2015).  Brian Dempsey and Kevin Stone previously blogged about the case here.  Look for an article with further details on this ruling in our next LawLine newsletter.

The case arose out of an incident at a group home for the mentally ill.  Teresa Sheehan, a resident of the home, threatened to kill a social worker, so the social worker called San Francisco police officers to detain Sheehan for a psychiatric evaluation. When the two female police officers arrived, they entered Sheehan’s room.  Sheehan then attacked the officers with a knife, forcing them out of the room and slamming the door.  The officers called for back-up. But before back-up arrived, the officers re-opened the door because they feared that Sheehan might be planning an ambush.  Sheehan again attacked them with the knife.  In response, the officers pepper-sprayed Sheehan.  When this did not stop Sheehan’s advance, the officers shot Sheehan several times.  She survived and sued, contending that the officers’ entry and use of force were unreasonable under the Fourth Amendment and that they failed to accommodate her mental illness.   The district court granted summary judgment to the defendants, but the Ninth Circuit reversed.

The Court took the case to reach the legal question of whether the ADA applies in the arrest context at all, but San Francisco changed its legal position during the case, so the Court declined to reach the issue.

The Court held that the officers were entitled to qualified immunity because  the “right” recognized by the Ninth Circuit in this case – a right to have the police accommodate a disability before making an entry that was otherwise valid under the Fourth Amendment – was not clearly established, if it existed at all.  A plaintiff cannot “establish a Fourth Amendment violation based merely on bad tactics that result in a deadly confrontation that could have been avoided. Courts must not judge officers with the 20/20 vision of hindsight.”  The Court declined to rely on the Ninth Circuit’s “provocation” theory, which has been sharply criticized, and rejected the notion that expert testimony was sufficient to establish a constitutional violation.  Notably, the Court held that “even if an officer acts contrary to her training…that does not itself negate qualified immunity where it would otherwise be warranted.  Rather, so long as a reasonable officer could have believed that his conduct was justified, a plaintiff cannot avoid summary judgment by simply producing an expert’s report that an officer’s conduct leading up to a deadly confrontation was imprudent, inappropriate, or even reckless.  In close cases, a jury does not automatically get to second-guess these life and death decisions, even though a plaintiff has an expert and a plausible claim that the situation could better have been handled differently.”

Officers dealing with mentally ill subjects are often forced to make tough decisions without the benefit of a “pause” or “rewind” button.  The ruling in this case reiterates the protection afforded to officers for making those decisions, while reminding the lower courts that the Fourth Amendment’s use of force inquiry is based on a constitutional standard of objective reasonableness, rather than hindsight, or second-guessing by a paid expert after the fact.