MRR’s Columbus Office Expands with Addition of Partners Doug Holthus and Elisabeth “Lisa” Gentile

Holthus.Gentile PR PhotoMRR is pleased to announce the addition of two attorneys to its Columbus office. The new lawyers joined MRR on January 18, 2016. They represent clients in a number of practice areas, including medical defense, auto and commercial trucking, insurance coverage and bad faith, restaurant and retail defense, corporate law, public sector law, civil rights and government liability, real estate, and professional and product liability.

The attorneys joining MRR are Partners Doug Holthus and Elisabeth “Lisa” Gentile.

“We are thrilled to expand our services in Columbus with the addition of these highly talented attorneys,” MRR President and Managing Partner Joseph F. Nicholas, Jr. said. “Both Lisa and Doug bring to the firm expertise in a number of practice areas, a set of exceptional legal skills, and a client-focused commitment to excellence.”

Founding Partner Todd M. Raskin also noted that it’s a homecoming for Lisa Gentile and the firm couldn’t be more pleased to have her back on the team. She began her career at MRR as a law clerk.

“Both attorneys’ backgrounds allows for MRR to respond to demands from clients requesting the greater depth and expertise necessary to service their increasingly sophisticated legal needs,” stated Mr. Nicholas. “The strengthening of MRR’s Columbus office will allow the firm to better serve and develop new clients on a regional level, while continuing to provide a full range of legal services through its collaborative practice model involving more than 38 lawyers in three offices.

MRR Ohio Legislation Updates: January 15, 2016 – January 27, 2016

Notes from the House of Representatives:

  • H.B. 435 was introduced to authorize the Treasurer of State to issue revenue obligations of the state for the purpose of making loans to qualifying public entities for their acquisition of permanent improvements through the Treasurer of State’s purchase of public obligations of those qualifying entities
  • Sub H.B. 166 was amended and passed upon third consideration to amend and repeal certain responsibilities of county auditors
  • H.B. 437 was introduced to require every law enforcement agency to adopt a written policy that requires an investigation into a death resulting from the actions of a law enforcement officer employed by the law enforcement agency and to require the investigation to be conducted by at least two law enforcement officers who are not employed by a law enforcement agency that employs any law enforcement officer involved in the officer-involved death

Notes from the Senate:

  • S.B. 17 passed upon third consideration to provide civil immunity for architects, contractors, engineers, surveyors, and tradespersons providing volunteer services during a declared emergency
  • S.B. 266 was introduced to clarify the circumstances under which a political party may appoint a person to fill a vacancy in certain county elective offices.

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

 

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The Search of Cell Phones Incident to Arrest

By: Kyle B. Melling, Esq.

In Chimel v. California, 295 U.S. 752 (1969) the United States Supreme Court held that under the Fourth Amendment arresting officers may search a suspect who is under arrest as well as the area in the suspect’s immediate control for purposes of officer safety and to protect against the destruction of evidence. This search was limited to areas in which a suspect might gain possession of a weapon or destructible evidence. In 1973, the Supreme Court clarified that arresting officers were even permitted to open a crumpled pack of cigarettes found in a suspect’s pocket, as part of a “search incident to arrest.” U.S. v. Robinson 414 U.S. 218, (1973).

At the time of the Robinson decision, the physical objects in the area immediately surrounding a suspect were much different than they are today. In 1973, this area may have included the contents of a wallet, notes that an arrestee had in his or her pocket, or, as in the case of Robinson, a cigarette packet holding heroin capsules. Today however, arrestees may possess personal cell phones, laptop computers, tablets, and other electronic storage devices that contain a wealth of information in which a suspect may have a privacy interest. The Chimel decision and its progeny did not provide specific guidance about whether arresting officers may access the data on these electronic storage devices.

The United States Supreme Court recently addressed this issue in Riley v. California, 134 S.Ct. 2473 (2014). The Court held that digital information on a cell phone may not be searched without a warrant, absent exigent circumstances. In the opinion, Chief Justice John Roberts noted that the decision in Robinson was “based on technology nearly inconceivable just a few decades ago.”

Accordingly, since Robinson, the clearly established law still permits the arresting officers to examine the physical device to determine whether the phone is disguised as a weapon, and they may power the cell phone down or remove its battery to prevent remote deletion of data. However, arresting officers may not, absent exigent circumstances, access the data on the cell phone without a warrant.

The Supreme Court did recognize that case-specific exceptions may still justify a warrantless search of a cell phone, but only in a very limited sense. Specifically, the Court cited examples of instances of child abduction or potential bomb threats.

In light of the Court’s decision in Riley, unless there are exigent circumstances, officers that want to search the data from an arrestee’s cell phone must first obtain a search warrant. Failure to do so violates the Fourth Amendment and would also likely strip an officer of qualified immunity, subjecting the officer to liability under 42 U.S.C. §1983.


For questions or more information on “The Search of Cell Phones Incident to Arrest,” contact:

 

Kyle B. Melling  – MRR Cleveland
Phone: 440.287.8295
Fax: 440.248.8861
Email: kmelling@mrrlaw.com

MRR Ohio Legislation Updates: January 1, 2016 – January 14, 2016

Notes from the House of Representatives:

  • H.B. 423 was introduced to specify that an order for active military service or other documentation regarding the call to order of an individual in the Armed Forces of the United States or the Ohio organized militia is not a public record
  • H.B. 424 was introduced to specify that military records provided by an officer or employee of a township or municipal corporation to the township or municipal corporation for personnel matters are not public records

Notes from the Senate:

  • S.B. 258 was introduced to establish the duties and authority of the Attorney General to investigate and prosecute cases relating to the death of a person caused by a peace officer

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

 

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MRR Update: Ban The Box Legislation

Recently Governor Kasich signed HB 56 into law, making Ohio one of the many states to enact “ban the box” legislation. The new law prohibits public employers from including on employment applications any questions concerning the criminal background of the applicant. It applies to all public employers, even those whose ability to hire applicants with certain criminal backgrounds is restricted by other statutes. It does not affect private employers.

HB 56 enacts a new section of the Ohio Revised Code, Section 9.73. Under Section 9.73, form applications for public employment may no longer include any questions related to the criminal background of an applicant. Public employers must remove such questions from their applications for employment. However, public employers may include statements on applications notifying applicants of any laws that disqualify individuals with criminal histories from employment in particular positions. Public employers may also still inquire about an applicant’s criminal background later in the hiring process; the question just cannot be on the application itself.

In the wake of the new “ban the box” law, it is important for public employers to review their applications and hiring process to ensure compliance. If you are a public or private employer and have questions or concerns about your employment application forms and/or hiring processes, please contact MRR and we would be happy to review those with you.

 

George Pilat to present “Can Common E&O Traps Also Be Marketing Opportunities?” at Insurance Board of Northern Ohio on January 14, 2016

George V. PilatOn Thursday, January 14, 2016,  George V. Pilat will present a 1-hour CE credit presentation focusing on the basic duties of an agent and common error and omission traps turned into marketing opportunities. He is the Co-Chair of MRR’s Insurance Agents & Brokers practice, in addition to the Business & Commercial Law practice group.  For over 25 years, George has represented and advised insurance agents, brokers, agencies, insurers, businesses, and entrepreneurs in all areas of insurance and business law. He is a member of the Insurance Board of Northern Ohio (IBNO) and regularly provides seminars to various insurance and legal groups.

The IBNO program will take place on Thursday, January 14, 2016 from 6-8 pm at Sterle’s Slovenian Country House in Cleveland. For more information, visit www.ibno.org.

 

News Release: MRR Promotes Tami Zupkow Hannon to Partner

Tami HannnonMazanec, Raskin & Ryder Co., LPA (MRR) is pleased to announce Tami Zupkow Hannon has been elected to the firm’s partnership.

Tami joined MRR’s Cleveland office in 2007. Her practice concentration is civil rights defense. She has represented numerous governmental agencies, elected and appointed officials, and has extensive experience in defending law enforcement departments, officers and correctional facilities. She combines her civil defense experience with her knowledge of employment law to provide timely, personalized and comprehensive employment guidance to both public and private employers. Tami has been named an Ohio Super Lawyer Rising Star for Municipal Law since 2013. She graduated magna cum laude from the University of Akron School of Law. She received her undergraduate degree from Geneva College in Beaver Falls, Pennsylvania.

“We are very proud of Tami’s accomplishments and extremely pleased to welcome her as a partner,” said MRR Managing Partner and President Joe Nicholas. “She is a remarkably talented and creative lawyer.”

MRR Ohio Legislation Update: December 18, 2015 – December 31, 2015

Notes from the Senate:

  • S.B. No. 256 was introduced to generally require law enforcement agencies to maintain a policy designed to eliminate biased policing and status-based profiling

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

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Ohio Supreme Court – High Speed Pursuits and Police Officer Liability

When can a law enforcement officer be held responsible for an innocent person’s injuries sustained in an accident involving the high speed pursuit of a fleeing suspect? Given the dangerous nature of their jobs, officers have extra freedom in how they operate their vehicles when in pursuit of a suspect. Officers have a duty to apprehend suspects, and if fleeing suspects are not apprehended, they create danger for the public. Conversely, high speed pursuits pose a danger to motorists on the road at the time of the pursuit. Ohio law currently gives deference to officers in this situation. Under the law, an officer’s conduct only causes an innocent bystander’s injuries sustained in an accident involving a fleeing suspect when that officer’s conduct is “extreme or outrageous.”

That said, the Ohio Supreme Court has accepted jurisdiction over a case, Argabrite v. Neer, 2015-Ohio-125, 26 N.E.3d 879 (2nd Dist.), calling the current law into question. The innocent bystander plaintiff has argued that an officer involved in a high speed pursuit should be able to be considered the cause of an accident, and subsequently held liable for a bystander’s injuries, even when an officer’s conduct is not “extreme or outrageous”. The plaintiff argued that protection from liability should come solely from R.C. 2744.03(A)(6)(b), which provides immunity to an officer for a bystander’s injuries so long as the officer does not act willfully, wantonly, maliciously, in bad faith, or recklessly.

Argabrite involves the high speed pursuit of a burglary suspect, who, while being pursued by officers, swerved into traffic and crashed headfirst into the plaintiff. The plaintiff sued the officers involved for personal injuries resulting from the crash. The trial court dismissed the claim, finding that while the officers’ conduct was reckless, it did not cause the accident because the officers’ conduct was not “extreme or outrageous”. The Court of Appeals affirmed the trial court’s decision.

Having accepted the injured driver’s appeal, the Ohio Supreme Court is now tasked with deciding whether the extreme or outrageous standard for causation is still appropriate. Plaintiff has argued that the law, by requiring extreme or outrageous conduct of officers to establish causation, has essentially abrogated the Ohio legislature’s determination in R.C. 2744.03 that the conduct required for liability is wanton and reckless conduct. Plaintiff argued that if the legislature wanted a different standard for officers pursuing suspects in high speed pursuits, it would have expressly created the exception. Plaintiff has also argued that if the extreme or outrageous standard remains, officers will essentially have free rein when pursuing fleeing suspects in their vehicles.

Conversely, the officers argued that they are not the insurers of fleeing suspects’ behavior, and as such, should not be responsible for a suspect’s actions absent extreme or outrageous conduct. The officers argued that it is the reckless conduct of a fleeing suspect, and not the conduct of an officer, that causes a plaintiff’s injuries. As such, an officer’s conduct should not be considered the cause of the injuries unless the officer did something extreme or outrageous. The officers also argued that removal of the extreme or outrageous standard will all but guarantee a suspect’s freedom so long as the suspect operates his/her vehicle in a manner so reckless that an officer will not be able pursue without risking personal liability.

As of right now, a decision is tentatively expected around late 2016 to early 2017. Argabrite is a case that should be monitored by all police departments throughout Ohio. If the Ohio Supreme Court rules in plaintiff’s favor, it will necessitate a thorough review of each department’s policy regarding the high speed pursuit of suspects, as it could result in more officers being held responsible for the reckless conduct of fleeing suspects.

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