U.S. Supreme Court rules “Qualified Immunity” in Mullinex v. Luna

By: James A. Climer, Esq.

Police use of deadly force has been a hot topic in the news recently. Events like the Ferguson, Missouri riots and the shooting of Tamir Rice as well as the Michael Brelo verdict in Cleveland have spurred countless news stories, blog posts and editorials concerning the propriety of police officers’ use of deadly force. The writers of these pieces have a luxury that police officers do not have when they encounter dangerous situations: time for thought and study. How can law enforcement officers avoid civil liability under 42 USC § 1983 when courts, attorneys and others have hours to sift through reams of confusing and sometimes conflicting cases to determine the proper legal course of action, while officers often have only a few seconds in chaotic situations to decide what to do? That’s the reason for the affirmative defense called qualified good faith immunity.

Qualified immunity protects public officials carrying out discretionary functions from civil liability for monetary damages under § 1983 unless their actions are prohibited by “clearly established law.” In other words, if the judges and lawyers can’t agree on what the law is, police officers and other public officials shouldn’t be called to task after the fact for violating it.

The U.S. Supreme Court recently reminded courts and the bar how to determine whether law is “clearly established” for purposes of qualified immunity in Mullenix v. Luna, 577 U.S. ___ (2015). In Mullenix, Tulia, Texas police attempted to execute an arrest warrant for a man spotted at a drive-in restaurant. They were led on a high-speed chase during which the suspect, who appeared to be intoxicated, reached speeds of 85 to 110 miles per hour and told a Tulia police dispatcher that he would shoot at police officers if the pursuit was not abandoned.

Tulia police set up tire spikes in three locations in an attempt to stop the suspect. Trooper Mullenix of the Texas Department of Public Safety also responded to the pursuit, intending to set up tire spikes near an overpass. After learning that officers were already setting out tire spikes near the overpass, Trooper Mullenix became concerned for their safety given the suspect’s threats, and Mullenix considered shooting at the suspect’s car to disable it. Trooper Mullenix asked for permission from a supervisor to carry out his plan but it was unclear whether he heard the supervisor tell him to see if the spikes worked first. Before the suspect reached the tire spikes, Trooper Mullenix shot at the suspect’s car, apparently intending to disable it, but instead hit the suspect causing his death.

The suspect’s estate sued Trooper Mullenix under 42 USC § 1983 alleging the use of excessive force in violation of the Fourth Amendment. The trial court denied a motion for summary judgment asserting qualified immunity on behalf of Trooper Mullenix and the Fifth Circuit Court of Appeals affirmed.

The Supreme Court reversed and found that Trooper Mullenix was entitled to qualified immunity. The Court first made it clear that it was only addressing the qualified immunity issue and not whether a constitutional violation had occurred. Id. at 4. The Court then rejected the basis asserted by the Fifth Circuit for its decision, the generalized principle that a police officer may not “use deadly force against a fleeing felon who does not pose a sufficient threat of harm to the officer or others.” Id. at 5-6.

Instead, the Court reminded the bench and bar that the correct inquiry is whether the law prohibited the officer’s conduct in the “situation [she] confronted.” Id. at 6 citing Brosseau v. Haugen, 543 U.S. 194, 199. While case law does not need to exactly match the facts of the case under consideration, it must be clear enough to indicate to a reasonably competent officer that his/her actions are illegal “beyond debate.” Id. at 7. Noting that it had never ruled the use of deadly force to be illegal in a vehicular pursuit, Id. at 8, the Court further reviewed a number of decisions from other courts and found that they created at best a “hazy legal backdrop” against which to judge the actions of Trooper Mullenix. Given this uncertainty in the law, Trooper Mullenix should have been granted qualified immunity.

Mullenix does not represent a major shift in the law. However, it does provide a strong reminder to the bench, bar and public officials that qualified immunity should be granted unless case law indisputably establishes that an official’s actions are illegal.

For questions or more information on “U.S. Supreme Court rules ‘Qualified Immunity’ in Mullinex v. Luna,” contact:

James A. Climer  – MRR Cleveland
Phone: 440.287.8290
Email: jclimer@mrrlaw.com



MRR Ohio Legislation Updates: October 30, 2015 – November 12, 2015

Notes from the House of Representatives:

  • H.B. 389 was introduced to amend various sections of the Ohio Revised Code to enact the Ohio Fairness Act to prohibit discrimination on the basis of sexual orientation or gender identity or expression, to add mediation to the list of informal methods by which the Ohio Civil Rights Commission may use to induce compliance with Ohio’s Civil Rights Law before instituting a formal hearing, and to uphold existing religious exemptions under Ohio Civil Rights Law. (Introduced 11-5-15)

Notes from the Senate:

  • S.B. 234 was referred to the Committee on Education. S.B. 234 would require specified public and nonpublic school officials to search the Uniform Statewide Automated Child Welfare Information System within thirty days of a student’s enrollment and to notify the county public children services agency if specified information is found during that search. (Introduced 10-27-15; Referred to Committee 11-10-15)

For questions or more information on MRR’s Ohio Legislation Updates, contact:

Stacy V. Pollock  – MRR Columbus
Phone: 614.324.0163
Email: spollock@mrrlaw.com

Stacy Pollock 8860

MRR Article: Can You Keep A Secret? What Businesses Need to Know about Ohio’s Uniform Trade Secrets Act

By: George V. Pilat, Esq.
Mazanec, Raskin & Ryder Co., LPA

Every business has valuable information that it wants to keep secret. Whether that information is a “trade secret” entitled to the benefits under Ohio’s Uniform Trade Secrets Act is not always an easy question to answer, and requires effort on the part of the company to keep the secret.

Colonel Sander’s Secret Recipe. The formula for Coca-Cola. Google’s original “search” algorithm. These are a few examples of what we commonly know as company “trade secrets,” and there are many others in every size and type of organization. But there are often misconceptions of what actually qualifies as a “trade secret” under the law and what someone has to do to qualify for legal protection.

Ohio adopted the Uniform Trade Secrets Act in 1994 to achieve uniformity in that area of the law with all other states enacting those statutes. But what exactly is a “trade secret”?

The Act defines a “trade secret” as:

…information, including the whole or any portion or phase of any scientific or technical information, design, process, procedure, formula, pattern, compilation, program, device, method, technique, or improvement, or any business information or plans, financial information, or listing of names, addresses, or telephone numbers, that satisfies both of the following:

(1) It derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use.

(2) It is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

As you can see, a very wide scope of information can potentially qualify as a “trade secret.” Focusing on just one item, there is often a misunderstanding whether customer or client lists are trade secrets. Although such lists are specifically mentioned in the statute, they do not always qualify as a trade secret.

How is that? Well, if they are simply a list of information that could be readily obtained from public information sources (company names, addresses, telephone numbers, etc.), that often does not qualify as something of value for not generally being known, and being valuable to others who could not readily ascertain the information by proper means. So while certain non-public information contained in customer or client lists might qualify as a trade secret, such lists do not always, automatically qualify as a trade secret protected under the Act.

The second part of the definition, being “…subject of efforts that are reasonable under the circumstances to maintain its secrecy” is what causes the most problems for businesses claiming trade secret protection for their valuable information. Material that could qualify as a trade secret is often not afforded that status because a business did not take adequate, or any, steps to safeguard and protect the information from dissemination or disclosure. Just a few examples of reasonable efforts to maintain secrecy include:

  1. Marking drawings, plans, or documents as “Confidential”
  2. Restricting access to those with a “need-to-know”
  3. Password protection on computer files
  4. Encrypting information
  5. Locking documents in file cabinets
  6. Having employees and others sign confidentiality and/or non-disclosure agreements

It certainly is preferable to employ as many safeguards as are reasonably possible, and something is always better than nothing. But not employing any, or enough, safeguards to maintain secrecy could mean the difference between having and not having statutory legal protection for your trade secrets.

Ohio’s Uniform Trade Secrets Act provides protection and benefits to business owners. However, it is not always clear exactly what qualifies as a “trade secret.” More important, even if information is a trade secret, the owner must take steps to protect and safeguard the information from disclosure, or the statutory protection is lost. So whether or not you can “keep a secret” is not as easy as it might sound.

For more information or if you have any questions, contact George Pilat at 440.424.0007 or via email at gpilat@mrrlaw.com.

About the Author: George V. Pilat is a Partner with Mazanec, Raskin & Ryder. He focuses his practice on business and commercial law, and insurance defense. He is a Co-Chair of the firm’s newly expanded Business & Commercial Law and Insurance Agents & Brokers practice groups. His experience and unique blend of skills includes significant work handling agent errors & omissions (E&O) coverage and litigation, coverage analysis, corporate compliance, commercial transactions, and employment litigation and counseling. He represents national and regional insurance agencies, agents/brokers, and Fortune 500 clients in both state and federal courts.

Law Enforcement and the ADA

By: Casey C. Stansbury, Esq.

Law enforcement officers encounter individuals with disabilities nearly every day. These disabilities may include people who are deaf or hard of hearing, people with epilepsy or cerebral palsy, persons with autism or Asperger’s, and persons with psychiatric difficulties. However, case law across the country has been inconsistent in determining the circumstances under which police can be held liable when dealing with a person with a mental disability. Questions frequently arise when police interact with individuals who may be protected by the Americans with Disabilities Act (“ADA”). The most recent United States Supreme Court case to deal with these issues is Sheehan v. the City and County of San Francisco.

In Sheehan, the Court was asked to determine whether two San Francisco police officers could be sued over their use of force when arresting a knife-wielding woman with a history of mental illness in a confrontation in which the woman was shot multiple times. In the 6-2 decision released in May of this year, the Court granted the officers qualified immunity on the Plaintiff’s Fourth Amendment claim. However, the Court did not address whether the officers should have provided the Plaintiff with “accommodations” or taken special precautions under the ADA because of her disability.

Cases like Sheehan are extremely fact-intensive and ADA concerns merit special attention by law enforcement departments in training and development of official policies and procedures as well as consideration by officers in the field when encountering members of the public with suspected disabilities. This blog will be updated with developments in this rapidly changing area of law.

For questions or more information on “Law Enforcement and the ADA,” contact:

Casey C. Stansbury  – MRR Lexington
Phone: 800.936.9198
Fax: 440.248.8861
Email: cstansbury@mrrlaw.com

Mazanec, Raskin & Ryder ranked in 2016 U.S. News & World Report “Best Law Firms”

BLF 2014_Silver_GeneralMazanec, Raskin & Ryder Co., LPA (MRR) is pleased to announce its inclusion in the Best Law Firms list for 2016, published by U.S. News & World Report in conjunction with Best Lawyers. MRR received a Metropolitan Tier 1 ranking in Cleveland, Civil Rights Law.

“We are very proud to be held in such high esteem by our clients and peers time after time, achieving professional excellence with persistently impressive ratings,” said Joseph F. Nicholas, Jr., MRR’s President and Managing Partner. We are thrilled to once again be chosen as one of the region’s top law firms.”

The U.S. News – Best Lawyers “Best Law Firms” rankings, for the sixth consecutive year, are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process. Clients and peers were asked to evaluate firms based on the following criteria: responsiveness, understanding of a business and its needs, cost-effectiveness, integrity and civility, as well as whether they would refer a matter to the firm and/or consider the firm a worthy competitor.

The U.S. News – Best Lawyers ® “Best Law Firms” rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process. To be eligible for a ranking, a law firm must have at least one lawyer listed in the 21st Edition of The Best Lawyers in America © list for that particular location and specialty.

U.S. News & World Report is a digital news information company that empowers people to make better, more informed decisions about important issues affection their lives. Focusing on Education, Health, Personal Finance, Travel, Cars and News & Opinion, www.usnews.com provides consumer advice, rankings, news and analysis to serve people making complex decisions throughout all stages of life. 30 million people visit www.usnews.com each month for research and guidance. Founded in 1933, U.S. News is headquartered in Washington, DC.

MRR Ohio Legislation Updates: October 16, 2015 – October 29, 2015

Notes from the House of Representatives:

  • H.B. 378 was introduced to amend O.R.C. §§ 2935.03, 4513.35, 4513.39 to authorize law enforcement officers of township police districts and joint police districts, and township constables, serving specified small populations to make arrests for motor vehicle-related violations committed on an interstate highway in the same manner as township law enforcement officers serving larger populations. (Introduced 10-22-15)
  • H.B. 380 was introduced to amend O.R.C. §§ 2930.01, 2930.03, and 2930.04 and to enact section 2901.45 of the Revised Code to require each law enforcement agency to adopt a written policy regarding the investigation of firearms-related officer-involved deaths that involve an officer serving the agency; to provide for investigations into officer-involved deaths by investigatory panels of law enforcement officers; to require an investigatory panel to provide a report of its investigation findings to the prosecutor and the officer’s law enforcement agency; to provide for public access to the report, except for information that is not public record, if the prosecutor determines there is no basis to prosecute or a grand jury enters a no bill regarding the involved officer; and to require an investigatory panel to inform the deceased individual’s family members of contact information for the office of the prosecutor handling the case. (Introduced 10-22-15)

Notes from the Senate:

  • S.B. 234 was introduced to amend O.R.C. §§3314.03, 3326.11, 3328.24, 5101.132, and 5101.134 and to enact sections 2151.4120. 3313.675, 3314.60, 3326.60, and 3328.60 of the Revised Code to require specified public and nonpublic school officials to search the Uniform Statewide Automated Child Welfare Information System within thirty days of a student’s enrollment and to notify the county public children services agency if specified information is found during that search. (Introduced 10-27-15)

For questions or more information on MRR’s Ohio Legislation Updates, contact:

Stacy V. Pollock  – MRR Columbus
Phone: 614.324.0163
Email: spollock@mrrlaw.com

Stacy Pollock 8860