Ballot Selfies: Protecting the “Secret Ballot” vs. The Importance of Political Speech

What do Kim Kardashian, Sean Hannity, Laverne Cox, Lena Dunham, and Beyoncé all have in common? Aside from the fact that they are all famous, each of them has posted a picture of a voting ballot in some form to social media (the 2016 phrase to describe this is taking “ballot selfies.”) But is this practice legal? Is it legal in some circumstances, but not others? What if the vote is not visible in the picture? What if the picture is never shared?

Under Ohio Revised Code § 3599.20 it is a fifth-degree felony for a person to allow another person to see his or her ballot, if that person’s intent is showing off how he or she is going to vote. This statute has not received much analysis in either federal or state courts, and so it is unclear whether it applies to pictures of completed ballots posted to social media after a person’s vote is already cast, or whether it only applies to people at the time they are about to vote.

Ohio law does not technically prohibit a voter from taking photographs of ballots (whether at the polls or absentee), or from use of cameras within polling places (though election officials could potentially ban cameras and video equipment in the process of enforcing “peace and good order” under R.C.  § 3501.33). So, a person may snap a selfie with his or her vote for Roseanne Barr, and treasure that photograph forever, so long as he or she does not show the photograph to anyone else. The disclosure of the photograph to other people, whether at a family picnic or over social media, is the conduct that constitutes a felony under Ohio law. Also, no violation occurs if the choice is not visible within the photograph, no matter who views the photograph.

Ohio is not alone in banning conduct relating to images of completed ballots. However, the First Circuit recently held that this type of government prohibition violates the First Amendment. In Rideout v. Gardner, decided by the First Circuit on September 28, 2016, the court considered a New Hampshire law very similar to R.C. § 3599.20 (except the law made it clear that it applied to both future votes and votes already cast). All three plaintiffs had posted pictures of ballots to social media to make some kind of statement about either the law itself or the candidates involved in the election.

The court found the law to be content neutral, and thus applied a level of intermediate scrutiny, which requires laws to be “narrowly tailored to serve a significant government interest.”  The purpose of the law was to prevent people from selling their votes. The court was skeptical that vote selling is an issue in this day and age, but even accepting the possibility that it may be an issue of significant government interest, the law was not narrowly tailored enough to serve this interest. As political speech is afforded great protection under the First Amendment, the New Hampshire law was held unconstitutional.

While Rideout is not binding on Ohio and posting a picture of a ballot reflecting how one intends to vote is still illegal in this state, it is perhaps a sign of what is to come. Indiana Civil Liberties Union Foundation, Inc. v. Indiana Secretary of State is currently pending in the Southern District of Indiana, and questions the constitutionality of a similar Indiana law. As the popularity of photo-sharing services like Instagram, Snapchat, Facebook, and Twitter continue to soar, we will likely continue to see challenges to these laws.

For example, H.B. No. 609 was introduced in the Ohio House of Representatives on October 25, 2016 to change R.C. 3599.20 to allow the act of taking a photograph of a vote for personal use, “including making the photograph available electronically to the public.”

 

 

Save

Save

Save

Save

Stansbury Tapped to Chair DRI Governmental Liability Committee

Casey StansburyMazanec, Raskin & Ryder (MRR) is proud to announce that partner Casey C. Stansbury is the newly appointed chair of the Defense Research Institute’s (DRI) Governmental Liability Committee.  Founded more than 50 years ago, DRI is the nation’s leading organization of defense attorneys and in-house counsel. In addition to the Governmental Liability Committee, the group includes 29 substantive committees that focus on the development of the defense bar in a number of practice areas by enhancing their skills, effectiveness, and professionalism while improving the civil justice system.

Mr. Stansbury’s appointment to a one-year term as chair was made official this week during DRI’s annual meeting in Boston, Massachusetts.

“It is truly an honor to take the reins of the Governmental Liability Committee and a privilege to work with my DRI colleagues, friends, and others in the field as the voice of the defense bar,” said Stansbury. “Our committee and our membership encompasses many of the top thought leaders and I really look forward to working with them in this new role.”

“We could not be prouder of Casey,” said Joe Nicholas, MRR President and Managing Partner. “He has been an integral part of DRI’s Governmental Liability Committee for a number of years and we’re sure that his term as chair will serve as a great capstone to his dedicated service to the committee as he leads it forward over the course of the next year.”

Mr. Stansbury focuses his practice on civil rights and governmental liability issues.  He regularly counsels and represents police officers, correctional officials, municipalities, and public officials in a variety of matters including employment concerns, contract disputes, and civil rights actions.  In addition to his representation of public entities and officials, Casey has experience in handling various other types of litigation matters including cases concerning construction disputes, commercial law, and motor vehicle accidents.

The recipient of numerous professional accolades, Mr. Stansbury earned the Defense Research Institute’s 2014 Albert H. Parnell Outstanding Program Chair Award and is also named as a Super Lawyer by Kentucky Super Lawyers magazine. He is involved in a number of professional organizations, including the Kentucky Defense Counsel, Federation of Defense and Corporate Counsel (FDCC), the Risk and Insurance Management Society, and the Bluegrass Claims Association. He earned his undergraduate degree at Louisiana State University and his J.D. from Ohio Northern University College of Law.

Save

Guns in the Workplace? What Every Private Business Needs To Know

By Christina Vessels

Christina VesselsGun-related violence headlines the news every day, and workplace shootings are, unfortunately, a reality of the times we live in. According to the most recent Bureau of Labor Statistics report, an average of 551 workers per year were killed as a result of work-related homicides, and of that number, approximately 78% of workplace homicides were committed with a firearm. [Bureau of Labor Statistics, U.S. Dep’t of Labor, Workplace Homicides from Shootings, analyzing data from 2006 to 2010, at http://www.bls.gov/iif/oshwc/cfoi/osar0016.htm (last visited Oct 11, 2016)]. And, those numbers do not account for additional workplace shootings that result in non-fatal injuries. Although such tragic incidents account for only 11% of all fatal work injuries, the threat of gun violence is an area that all employers must be prepared to address in their risk management.

Of course, all employers have a duty to provide a safe working environment. To that end, many private employers adopt policies that ban all weapons at work, and both Kentucky and Ohio allow private employers to prohibit employees and invitees from carrying weapons onto their work premises, including lawfully possessed concealed firearms. But many states, including Kentucky, have “Parking Lot Statutes” that allow employees to legally keep firearms in their parked cars even when firearms are banned at the workplace by an employer.

Kentucky Revised Statute 237.106(1) provides that an employer cannot prohibit an employee from keeping a firearm in a vehicle on company property unless the employee is prohibited from carrying a firearm by federal or state law; however, that firearm can only be removed from the vehicle in an act of self-defense of others or property or with the employer’s authorization. An employer who violates these rights is liable in civil damages.

Ohio does not currently afford such protection for its concealed handgun licensees and will allow an employer to prohibit weapons, even in privately-owned employee vehicles while in their company parking lots. However, a bill has been introduced in the Ohio legislature that would prohibit any employer from discriminating against an employee for storing a firearm in his or her locked vehicle in the employee parking lot.

So, what is an employer to do to both keep its employees safe and to insulate itself from liability?  Employers should have policies in place to prohibit workplace violence of all kinds—including not only violence that results in physical injury, but also harassment, bullying, and intimidation. And, employers must consider whether they want to ban all weapons to the extent available under the law, or whether they want to take other actions to provide a safe workplace without such a ban. For instance, in Kentucky, even with its protections to allow employees to maintain weapons in their personal vehicles on work premises, courts have upheld additional employer administrative requirements, like requiring disclosure of any weapons maintained in a privately-owned vehicle on the employer’s property. Or, if an employer chooses to allow handguns or other weapons on its property, other safeguards can be implemented—like requiring a copy of the permit to carry to be kept on file and storage of any firearms in a locked safe while on the premises.

Whatever they choose, private employers must know the laws of the state in which they are operating—laws which are rapidly changing and developing. That means if an employer operates in multiple states, its policies must be tailored specifically for each state’s unique laws, and it must keep abreast of the updates in the law. Then, equally important as determining the rules of the workplace in relation to firearms or other weapons is communicating and uniformly implementing those rules to all employees.

If you have questions about your company’s policies with regard to firearms and other weapons in the workplace, please contact any of the following attorneys at Mazanec, Raskin & Ryder Co., L.P.A.:

Christina Vessels – Lexington
cvessels@mrrlaw.com
859.899.8515

Tami Hannon – Cleveland
thannon@mrrlaw.com
440.424.0009

Stacy Pollock – Columbus
spollock@mrrlaw.com
614.324.0163

 

Save

Save

Save

Save

Save

Court Finds Troopers’ Pursuit of Fleeing Suspect is not the Proximate Cause of Deputy’s Death

Kentucky’s Court of Appeals recently examined a case involving liability for damages arising out of the pursuit of a fleeing suspect. In Pursifull v. Abner, 2015-CA-000879-MR, 2016 WL 5335515 (Ky. Ct. App. Sept. 23, 2016), a sheriff’s deputy was killed when an individual being pursued by two Kentucky State Police troopers crashed his vehicle into the deputy’s cruiser. The victim’s family sued the troopers, claiming the deputy’s death was the result of the troopers’ negligent pursuit.

The trial court entered summary judgment in favor of the troopers because it found causation could not be proven. Relying on Chambers v. Ideal Pure Milk Co., 245 S.W.2d 589 (Ky.1952), the trial court determined the criminal’s conduct – not the conduct of the pursuing troopers – was the proximate cause of the fatal accident.

The Court of Appeals agreed that “police cannot be made the insurers of the conduct of the culprits they chase,” and noted that “[w]hile the officer’s pursuit did cause the suspect to speed, the officers were not liable for the suspect’s negligent speed.” Pursifull at *4. The Court found support for its ruling by virtue of the fact that the criminal subsequently pled guilty to the murder of the deputy under a statute requiring a mental state “substantially more severe than mere negligent conduct.” Finally, in a nuanced observation, the Court noted the troopers were not arguing the criminal’s conduct was a superseding cause of the harm, but instead only that their actions were not the proximate or legal cause of the deputy’s death.

The Pursifull opinion is significant for at least two reasons. First, it provides an insightful analysis of proximate cause vs. cause-in-fact in the context of a police pursuit. Second, it establishes that summary judgment is still available in cases featuring substantially similar facts. For any questions about Pursifull v. Abner and/or pursuit of a fleeing suspect related issues, please contact the attorneys at Mazanec, Raskin & Ryder Co., L.P.A.


Casey C. Stansbury
859.899.8514
cstansbury@mrrlaw.com

Save

Save

Save