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Posts Tagged ‘#police’

Home Run for Analysis of Use of Force During Medical Emergencies

Posted on: October 31st, 2017

By: Kevin R. Stone and Sara E. Brochstein

I’m bad at baseball.  When I step in the batter’s box, I might as well have two strikes against me before the pitcher unleashes his first fastball.  For me, it’s no big deal; I’m destined to strike out anyway.  The Sixth Circuit, however, recognizes that’s no way to treat law enforcement officers faced with the difficult choice to use force in response to medical emergencies.

In determining whether a Fourth Amendment violation has occurred in excessive force cases, the evidence must demonstrate that the officer’s actions were “objectively reasonable” under the totality of the circumstances.  The Supreme Court has provided three over-arching factors to consider in this analysis: (1) the severity of the crime; (2) whether the suspect actively resisted or evaded arrest; and (3) whether the suspect posed an immediate threat.  (The Graham factors.)

When responding to a medical emergency, however, two of those factors usually don’t exist: no crime (strike one) and, by extension, no resisting or evading arrest (strike two).  Thus, the officer’s choice to use force may rest on a single factor, which the officer may have to assess and act on in a split second.  Acknowledging that the Graham factors are not exhaustive and that medical emergencies create unique challenges for law enforcement officers, the Sixth Circuit, in Hill v. Miracle, established a list of additional non-exhaustive factors to consider when determining whether an officer’s use of force is objectively reasonable in such situations:

(1) Was the person experiencing a medical emergency that rendered him incapable of making a rational decision under circumstances that posed an immediate threat of serious harm to himself or others?

(2) Was some degree of force reasonably necessary to ameliorate the immediate threat?

(3) Was the force used more than reasonably necessary under the circumstances (i.e., was it excessive)?

The court explains: “If the answers to the first two questions are ‘yes,’ and the answer to the third question is ‘no,’ then the officer is entitled to qualified immunity.  These questions and answers serve as a guide to assist the court in resolving the ultimate issue of whether the officers’ actions are objectively reasonable in light of the facts and circumstances confronting them.”

The Sixth Circuit’s opinion drives home the principle that rote application of the Graham factors may cause an unfair strike out.  Objective reasonableness requires an examination of the totality of the circumstances and deserves a careful, fact-specific assessment in each case.  Whether other circuits will hit home runs and also apply these new factors remains to be seen.

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

SCOTUS Affirms FMG Victory In First-Of-Its-Kind 11th Circuit Flash Bang Case

Posted on: October 10th, 2017

By: Wayne S. Melnick and A. Ali Sabzevari

Previously, we blogged on a first-of-its-kind summary judgment obtained by Freeman Mathis & Gary in a Section 1983 case involving allegations of excessive force based on the police’s use of “Flash Bang.”  The case was appealed to the 11th Circuit Court of Appeals and that court affirmed the lower court opinion finding this case of first impression was the first in the circuit to address Flash Bang usage; and as such, the officer was entitled to the qualified immunity granted by the district court because there was no clearly established law on point.

In a one-line order issued earlier this month, the United States Supreme Court denied plaintiff’s petition for certiorari thereby locking in the 11th Circuit victory as controlling precedent. Because the 11th Circuit provided a bright line test for future Flash Bang use, it is imperative that all practitioners defending law enforcement officers who deploy Flash Bangs (as well as those officers themselves) be familiar with the rules provided by the court going forward.

If you would like a copy of the 11th Circuit opinion or more information, please contact either Wayne Melnick at [email protected] or Ali Sabzevari at [email protected].

11th Circuit: Exclusionary Rule is Inapplicable to Malicious Prosecution Claims

Posted on: March 8th, 2016

By: Kevin Stone and Andy Treese

The Eleventh Circuit Court of Appeals recently published an opinion in which it held that the exclusionary rule cannot be used against police officers in a civil suit.

In Black v. Wigington, 15-10848, 2016 WL 278918 (11th Cir. Jan. 22, 2016), the plaintiffs sued several sheriff’s deputies for malicious prosecution.  Because an officer cannot be liable for malicious prosecution if the arrest is supported by probable cause, the key inquiry was whether probable cause supported the plaintiffs’ arrests.  The officers argued that evidence found during their search of the plaintiffs’ home provided probable cause, while the plaintiffs argued that the evidence could not provide probable cause because the search was illegal. 

During the plaintiffs’ criminal trial, the superior court determined that the search was unlawful.  As a result, the superior court applied the exclusionary rule, suppressing all evidence associated with the search, resulting in a dismissal of the criminal charges.  The Eleventh Circuit held, however, that the exclusionary rule does not apply in a civil suit against police officers.  As a result, the court considered the evidence found during the unlawful search and concluded that probable cause existed for the prosecution of plaintiffs.  For that reason, the malicious prosecution claim failed.  The court, however, made clear that plaintiffs may still sue officers for an illegal search. 

As the court observed, the exclusionary rule is not a “personal constitutional right” or a requirement of the Fourth Amendment; it is a “judicially created remedy” which applies in the criminal context, only.  The court reasoned that the cost of applying the exclusionary rule in civil suits against officers is significant because officers could be forced to pay damages based on “an overly truncated version of the evidence.”  Although the exclusionary rule prevents illegally gathered evidence from being used in a criminal trial, it does not apply in a civil suit alleging false arrest and malicious prosecution.



Can You Hear (or See) Me Now? No, and that May Constitute Spoliation

Posted on: February 24th, 2016

By: Andy Treese

The Georgia Court of Appeals recently held that a municipality may be subject to sanctions for failure to preserve audio recordings of a police pursuit when the recordings were destroyed in the ordinary course of business before it received ante litem notice or other actual notice of contemplated litigation.

Last year we reported here about Phillips v. Harmon, in which the Supreme Court of Georgia held that the duty to preserve evidence may be triggered by a party’s constructive notice of pending or contemplated litigation.  The ruling marked a significant expansion from the previous rule, which required actual notice (such as a spoliation letter, letter of representation or ante litem notice) to trigger the duty.  We expressed concern that in the wake of Phillips, plaintiffs would begin to seek sanctions for spoliation based upon failure to preserve evidence when a defendant “should have” known a lawsuit was coming, and that defendants with relatively short record retention periods for audio or video recordings would be particularly vulnerable to these claims.   A recent ruling by a full panel of the Georgia Court of Appeals seems to validate those concerns.

In Loehle v. Georgia Department of Public Safety, 334 Ga. App. 836 (2015), plaintiffs filed suit against the Georgia Department of Public Safety and the City of Atlanta after they were injured by suspected carjackers fleeing from police. According to the opinion, Atlanta failed to preserve audio recordings related to the pursuit, destroying them pursuant to its customary retention period after about 120 days, prior to the receipt of ante litem notice.  The trial court held, applying pre-Phillips law, that Atlanta’s failure to preserve the recordings did not constitute spoliation because when the recording were destroyed, the city lacked actual notice that the plaintiffs were contemplating suit.  The Georgia Court of Appeals held, 6-1, that the trial court applied the wrong legal standard, vacated the trial court’s ruling as to spoliation, and remanded for re-consideration under the standard set forth in Phillips.  The sole dissenter, Judge Andrews, would have affirmed the trial court’s ruling because the plaintiffs did not make or preserve “constructive notice” arguments as to the spoliation issue before filing their appeal.

Strategically, the Loehle ruling emphasizes the importance of prompt and thorough investigation of potential claims, even in the absence of a preservation request. Companies with relatively short retention policies (30, 60, or 90 days), particularly regarding audio and video-recordings, may want to re-examine their current policies and consider involving counsel early in pre-suit investigations.

A petition for certiorari has been filed to the Supreme Court of Georgia; we will monitor the case and report on future developments.

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.