Use of Force During a Medical Emergency: A New Standard from the Sixth Circuit

By: Tami Z. Hannon & Curtis M. Graham

Earlier this year the Sixth Circuit had occasion to address what standard applies to use of force claims in the context of a medical emergency. In Estate of Hill by Hill v. Miracle, 853 F.3d 306 (6th Cir. 2017) a diabetic person filed a 42 U.S.C. § 1983 claim against a law enforcement officer after a taser was used against the plaintiff while he was experiencing a hypoglycemic episode. The plaintiff was agitated toward the responding officer and medical personnel for attempting to treat him and was acting combative and confused. The officer eventually deployed his taser when the plaintiff continued to kick and swing at the paramedics.

The plaintiff alleged that the officer’s decision to use the taser constituted excessive force in violation of his Fourth Amendment rights. He also asserted state law claims of assault, battery and infliction of emotional distress. The officer moved for summary judgment on qualified immunity grounds. This motion was denied by the District Court and the officer then appealed to the Sixth Circuit.

The importance of Miracle is that the Court moved away from the use of force test provided for in Graham v. Connor, 490 U.S. 386 (1989). In Graham, the Supreme Court used a three-factor test to assess the objective reasonableness of an officer’s use of force. Those factors were: (1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether he is actively resisting arrest or attempting to evade arrest by flight.

The Miracle Court stated that applying the Graham factors to a medical emergency situation “is equivalent to a baseball player entering the batter’s box with two strikes already against him.” Specifically, because the plaintiff in Miracle had not committed a crime and was not resisting arrest, two of the three Graham factors automatically weighed against the officer. Instead, the Court announced that when the person in question has not committed a crime, is not resisting arrest and is not directly threatening the officer, the court should ask:

(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 minimize the immediate threat?

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

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. Turning to the facts of the case at hand, the Court found the plaintiff was experiencing a medical emergency and was not able to make rational decisions due to his condition. Additionally, the officer and paramedics were put in immediate physical danger by the plaintiff’s combative actions and the plaintiff himself would have been in grave danger had the officer done nothing. Finally, the Court found the force used was reasonably necessary due to the fact that four paramedics had been unable to restrain the plaintiff.

The new factors announced in Miracle allow courts to more appropriately evaluate the reasonableness of officers’ actions in light of the (often unpredictable) circumstances they find themselves in. Law enforcement officers should take note of this important decision involving qualified immunity and keep these principles in mind when they are confronted with situations involving medical emergencies. Additionally, departments would be well served to educate their officers on these factors and possibly revise their policies and procedures in light of this notable decision (particularly those relating to officers’ response to aggression). This may require additional training on recognizing medical emergencies. When it comes to minimizing liability exposure, understanding how a court will assess similar cases in the future is a key to success.


Tami Hannon (thannon@mrrlaw.com) is a Partner in MRR’s Cleveland Office and Curt Graham (cgraham@mrrlaw.com) is an Associate in MRR’s Lexington Office. For more info, please  contact MRR via email or call 440.248.7906.


 

“Person” Means Person In Ohio’s Dram Shop Act

Mary Beth Klemencic
E: mbk@mrrlaw.com

It seems the Ohio Supreme Court agrees with Dr. Seuss’s Horton Hears a Who!
“A person’s a person”

The Supreme Court recently affirmed that Ohio’s Dram Shop Act is the exclusive remedy against liquor permit holders for third parties injured off-premises by an intoxicated person and excludes all other common law negligence claims against the liquor permit holder. In Nichole Johnson v. Mary E. Montgomery, et al., Slip Opinion No. 2017-Ohio-7445, the plaintiff was seriously injured in a motor vehicle accident caused by an intoxicated dancer on her way home from work after leaving the strip club where she danced and was allowed to drink while she worked.

The question before the Court was whether the strip club dancer[1] qualified as an ‘intoxicated person’ under the statute or whether the term included only club patrons.  The plaintiff argued that the Dram Shop Act did not apply to intoxicated workers or independent contractors, but that the term “intoxicated person” in the Act really means “intoxicated patron.”  Plaintiff claimed that since she was injured by an intoxicated worker, and workers and patrons are different, the club was responsible under the common law theory of negligence for failing to act as carefully as a reasonable person would in the same circumstances.

The twist to the plaintiff’s argument was that the club encouraged the dancers to drink on the job and accept drinks from patrons, thereby the club took on additional responsibility.  However, the Justices noted that the dancers were not required to drink.  The club argued the Act applies to “person(s)” no matter whether that “person” is a patron or a worker; there is no difference.

The Court concluded that the phrase “intoxicated person” in Ohio’s Dram Shop Act includes any person, including intoxicated workers or independent contractors, not just a permit holder’s patrons, whose intoxication causes an injury.  “The statute is straightforward” and “does not limit the definition of “person” based on the individual’s relationship to the permit holder.” As Horton Hears A Who has told us, “A person’s a person…”

[1] The dancer paid the club $30 a night to lease space to dance and only wages received were tips from patrons.  No paychecks or W-2s were provided.

 

Internal Investigation Notes May Now Be Public Record

By Tami Hannon

Most public agencies understand that their records are public. But what about those records created by private individuals hired by a public agency?  Specifically, what about notes taken by a private individual while conducting an investigation on behalf of the agency?  A recent decision issued by the Ohio Court of Claims indicates that yes, those records are also public record.

In Hurt v. Liberty Township, the Board of Township Trustees hired an outside private attorney to investigate possible wrongdoing by the fire chief. The attorney conducted numerous interviews during which he took notes. He later used those notes to prepare a report to the trustees, though the notes themselves were never given to the township. The investigation revealed potential wrongdoing and the attorney was instructed to prepare the statutorily required charges against the fire chief. Prior to the removal hearing, the fire chief’s attorney subpoenaed the investigator’s notes. A copy of those notes were provided at the hearing for his review.

Later, two individuals made a public records request for several items, including the attorney’s notes. The township and the attorney refused to provide the notes on the basis that they were not township records as they had been created and maintained by the private attorney. The requestors used a new provision in R.C. §2743.75 to file a claim with the Ohio Court of Claims alleging an improper denial of public records. That court recently ruled that the notes are, in fact, public records subject to disclosure.

The court relied on several factors in reaching that conclusion. First, the court found that the private attorney had been retained to perform a function statutorily delegated to the township, specifically investigating potential wrongdoing by the fire chief. The notes documented the performance of that function. Second, the notes were used to prepare the report (a public record) but did not appear to have been substantially duplicated in the report. As information was contained in the notes that was not contained in the report, the court found that the notes were a separate record and not a duplicate of the report or a transient record used to assist in preparing the report. Finally, the court found that the fact that the township did not have possession of the records was immaterial as the attorney had carried out an official function, the township had monitored his performance and the investigation and the township could have access to those records.

Historically, personal notes have always been a grey area. Some courts have found that the notes are not public record if they are merely kept to help the individual recall something and are not shared with others. Notes taken that are later incorporated into a report and discarded have also historically not been public record. The issue was less clear when notes were shared with others and relied upon by them, or when the notes had some value apart from the report itself, such as when the entirety of the notes were not incorporated into the report.

In Hurt, the court held that the notes from the interviews during the internal investigation were not merely kept for personal convenience or discarded once the report had been written. Rather, the court found that the notes had a separate value given that they were retained and provided to the other attorney during the pre-disciplinary process which indicated that they contained information not otherwise incorporated into the written report. As such, the court held the notes left the realm of personal records and became public records.

In Hurt, a specific statute required the township to conduct an investigation and authorized the hiring of a private individual to conduct that investigation. The obligations in that statute built the foundation for several of the court’s findings. While the issue before the court was limited to that specific statute, it opens the door for notes made during any statutory investigation to be public records. The issue is less clear in cases of general workplace misconduct or harassment, as best practices and risk management require an investigation but the statutes do not. The lack of a statutory obligation may offer some protection to those investigations. Until the law becomes more developed, investigatory notes and interviews may be public record, even when the investigation is performed by an outside third party.

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Qualified Immunity for Law Enforcement Reaffirmed: Supreme Court Issues Unanimous Decision in White v. Pauly

Law enforcement officers are generally immune from liability and may only be held civilly liable under federal law if, (1) the officers violate an individual’s constitutional rights and (2) that constitutional right was clearly established at the time of the violation.  The United States Supreme Court recently issued an opinion discussing the second prong of this analysis.  The Supreme Court, in White v. Pauly, 580 U.S. ______ (2017), reminded us that the second prong of the analysis cannot be satisfied by relying upon general statements of law, and that a court cannot deny an officer qualified immunity unless it can cite to a case where an officer acting under similar circumstances as the officer was found to have violated the Fourth Amendment.

The White case involved the use of deadly force. In White, officers were responding to a call of suspected driving under the influence.  The suspect had left the scene and the officers responded to the address associated with the vehicle’s license plates.  For the purposes of summary judgment it was assumed that the other officers had failed to sufficiently identify themselves as police officers and that the plaintiffs believed that their residence was under attack.   Specifically, in response to the plaintiffs’ questions as to who was outside, the officers laughed and said “You (expletive), we’ve got you surrounded, come out or we’re coming in.”

Officer White arrived on the scene several minutes after his fellow officers.  As Officer White arrived he heard the two men state that they had guns.  Officer White took cover behind a stone wall.  The suspect opened the door and fired two shotguns blasts while screaming loudly.  The other man, the driver’s brother, opened the front window and pointed a handgun in the direction of Officer White.  Another officer fired at the brother, but missed.  Several seconds later Officer White shot and killed the brother.

The district court and the court of appeals denied summary judgment to all officers, including Officer White.  The Supreme Court vacated this decision and held that, on the record described by the Court of Appeals, Officer White did not violate clearly established law when he utilized deadly force.  The Supreme Court held that clearly established law does not prohibit a reasonable officer who arrives later to an ongoing police action in circumstances like this from assuming that proper procedure, such as officer identification, have already been followed.  The Supreme Court noted that no settled Fourth Amendment principle requires that late-arriving officer to second-guess the earlier steps already taken by his or her fellow officers.

he Supreme Court remanded the case to the district court, but also included a requirement that the court consider an alternative argument that Officer White had arrived early enough to witness the other officers’ deficient identification and should have known that corrective action was necessary before using deadly force.  The Supreme Court did not offer any opinion regarding the constitutionality of the other officers’ conduct.

This case is a good case for law enforcement, as it once again reinforces the concept of qualified immunity and the provision of immunity to law enforcement when they are acting in gray areas.  However, the case also underscores the importance of utilizing common sense and basic police protocols, such as an officer identifying him or herself when approaching a suspect, and treating suspects with courtesy.  While hindsight, of course, is always 20/20, the entire situation in White may have been avoided had the officers approached the plaintiffs, identified themselves as police officers, and discussed the underlying misdemeanor traffic offense, rather than creeping in the bushes and yelling expletives.


Cara Wright

Cara M. Wright
440.287.8321
cwright@mrrlaw.com

 

UPDATE: Ohio Supreme Court – Abolition of “Proximate Cause Rule” in High Speed Pursuits

We previously reported on a case making its way through our court system that determined police officer liability in high speed pursuits (Click HERE to read our prior blog post). On December 27, 2016, the Ohio Supreme Court issued its ruling concerning potential officer liability. That ruling held that a police officer’s liability is determined by reference to the immunity standards in Ohio Revised Code Chapter 2744, not whether the officer’s conduct was extreme or outrageous. Argabrite v. Neer, 2016-Ohio-8374.

The case before the Court involved the pursuit of a burglary suspect, who, while being pursued by officers, swerved into traffic and crashed headfirst into an innocent bystander. The bystander sued the officers involved for personal injuries resulting from the crash. The trial court dismissed her claim, finding that the officers’ conduct did not cause her injuries. The court of appeals affirmed the trial court’s decision.

Both the trial court and the court of appeals relied on the “proximate cause rule,” which says that officers are only liable for an innocent bystander’s injuries suffered as a result of a pursuit if the officers’ conduct was extreme or outrageous.  The bystander appealed to the Ohio Supreme Court, claiming that the “proximate cause rule” effectively provided immunity greater than that provided by R.C. 2744, which provides immunity so long as the officers do not act wantonly, maliciously, in bad faith, or recklessly.

Unfortunately, the Ohio Supreme Court agreed and abolished the proximate cause rule as being contrary to the immunity provided in R.C. 2744. Specifically, the Court held that the “proximate cause rule” shielded an officer from liability unless the officer acted in an extreme or outrageous manner, thereby effectively and improperly extending immunity to an officer who acts wantonly or recklessly even though the officer is not immune from that conduct under R.C. 2744. The Court further stated that if the legislature wanted to expand the limits of the immunity that applies to officers who pursue fleeing suspects, it could have created this standard via statute, but the courts may not.

Notwithstanding the abolishment of the proximate cause rule, the Court found the officers to be immune under R.C. 2744 because their conduct was not wanton, malicious, in bad faith, or reckless.  In finding the officers were immune, the Court considered whether the officers knowingly violated policy and whether the officers knew that their conduct would in all probability result in injury.  The Court found that the officers unknowingly violated departmental policy, but that there was no evidence that they knew their conduct would in all probability result in injury.  In so holding, the Court relied on the fact that the officers engaged in the pursuit at a distance and at reasonable speed, that the weather conditions were light and sunny, that the lead officers called out street names over the radio so that other officers would know their location and the direction in which they were heading, and that the lead officers used their overhead lights and sirens throughout the pursuit.

In conclusion, while the Ohio Supreme Court’s decision in Argabrite make it more difficult for officers to avoid liability in high speed pursuits, the Court did give guidance as to how to best avoid liability. Specifically, if you are aware of a policy, ensure it is followed. Additionally, if you believe that your conduct will probably result in another’s injury, cease the pursuit. Finally, make sure you pursue at a reasonable distance and at a reasonable speed, consider weather conditions in determining whether to initiate or continue a pursuit, and ensure you are using your lights and sirens.

It is now more important than ever for each and every police department throughout Ohio to thoroughly review its policies regarding the pursuit of suspects and for all policies to incorporate the standards laid out by the Court so as to decrease their officers’ risk of liability when pursuing a fleeing suspect.

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“Confidential Law Enforcement Investigatory Records” No Longer a Valid Exception to Public Records Requests for Police Dash-Cam Videos

On December 6, 2016, the Ohio Supreme Court held that police dash-cam video footage is a public record.  The “confidential law enforcement investigatory records” is not a valid blanket exception for dash-cam videos.

State ex rel. Cincinnati Enquirer v. Ohio Dept. of Pub. Safety, Slip Opinion No. 2016-Ohio-7987, involved a 2015 high speed pursuit.  Following the pursuit and arrest of the suspect, The Cincinnati Enquirer made a public records request for footage from the chasing police cruisers’ dash-mounted cameras (“dash-cams”).  The State of Ohio denied the request, arguing that all of the footage was exempt from release under public record law because it was a “confidential law enforcement investigatory record” pursuant to R.C. 149.43(A)(1)(h) and 149.43(A)(2).

The Ohio Supreme Court rejected the State’s arguments, holding that while some of the footage could be shielded as a confidential law enforcement investigatory record, the State may not assert that privilege over all dash-cam footage.  To that end, the Court held that dash-cam footage is not a confidential law-enforcement investigatory record unless the release of the footage would create a high probability of disclosure of “specific investigatory work product.”

A decision about what constitutes “specific investigatory work product” requires a case-by-case review.  However, it generally includes any notes, working papers, memoranda or similar materials, prepared by law enforcement officials in anticipation of actually pending or highly probable criminal prosecution.  In this case, the protected video only included the police officer reading the suspect his Miranda rights and subsequent questioning (a total of about 90 seconds) because the officer did so with the intention of securing admissible statements for the prosecution’s later use at trial.  The remainder of the footage, which included audio/video that was of little investigative value and/or contained information that was disclosed in incident reports that were disclosed to the Enquirer, was required to be disclosed.

Ultimately, the Court’s decision is an important ruling for police departments because it prohibits police departments from making blanket denials of dash-cam footage requests.  Whenever a request is made for footage, counsel should be contacted immediately to help determine what portions are exempt from disclosure and what portions must be disclosed. MRR has attorneys who work specifically for public entities in addressing public records requests and can assist in implementing the Supreme Court’s new decision.

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Come Fly With Me: An Overhead View of Drone Requirements and Rules

By: Christina M. Nicholas, Esq.

“Come fly with me, let’s fly, let’s fly away . . .”

Unfortunately, I am not offering you a first-class ticket to some exotic locale where you can pass the days away languishing in the sun as the sweet melodies of Ole’ Blue Eyes drift overhead.  I am, however, offering you something even better—an overhead view of the new regulations affecting drones.  So, please, pull up a chair and prepare to be serenaded.

The Federal Aviation Administration (“FAA”) has different requirements and/or rules for Unmanned Aircraft Systems (“UAS”), i.e., drones.  The requirements and rules depend on the reason the UAS is being flown.  The FAA separates UAS flights into two categories, “Fly for Work, Business or Non-Recreation” and “Fly for Fun or Recreation.”

Fly for Work, Business or Non-Recreation

 The FAA has provided three (3) ways by which to fly a UAS for work, business or non-recreation:

  • The Small Unmanned Aircraft System (“sUAS”) Rule, also known as Part 107 (applicable to UAS that weigh less than 55 pounds at takeoff, and discussed in detail below);
  • A Section 333 Grant of Exemption (applicable to UAS that weigh 55 pounds or more); and
  • An Airworthiness Certificate.

On August 29, 2016, the Federal Aviation Administration’s (“FAA”) comprehensive regulations for sUAS went into effect.  These regulations are for the non-recreational use of sUAS.  Part 107 applies only to UAS that weigh less than 55 pounds at takeoff.  If the UAS weighs 55 pounds or more, a Section 333 Grant of Exemption will need to be obtained.  To fly under Part 107, a pilot must:  (1) be at least 16 years of age; (2) pass an initial aeronautical knowledge test at an FAA-approved knowledge testing center; and (3) be vetted by the Transportation Safety Administration (“TSA”).  The aircraft is required to be:  (1) less than 55 pounds; and (2) registered.  A sUAS needs to be registered if it is between 0.55 pounds and 55 pounds.  If the sUAS is within these weight limitations, registration can be done online.  If the UAS is 55 pounds or more, paper registration is required.  Additionally, paper registration is required to qualify sUAS for flight outside the United States, if the title to the aircraft is held in trust, or if the owner of the sUAS utilizes a voting trust to meet U.S. Citizenship requirements.

To fly under Part 107, a pilot must adhere to a set of operating rules; however, these rules may be waived by applying for a certificate of waiver.  The general operating rules are as follows:

  • Fly the sUAS in Class G, or uncontrolled, airspace;
  • Keep the sUAS in sight (also called, “visual line-of sight”);
  • Fly the sUAS under 400 feet;
  • Fly the sUAS during the day;
  • Fly the sUAS at or below 100 mph;
  • Yield right of way to manned aircraft; and
  • Do not fly over people or from a moving vehicle.

Fly for Fun or Recreation

If an operator wants to fly a UAS for fun or recreation, they do not need to seek permission from the FAA to do so; however, they must fly the UAS in a safe manner.  Additionally, there are certain requirements to fly for fun or recreation.  To fly for fun or recreation, the operator of the UAS must be:  (1) at least 13 years of age; and (2) a U.S. citizen or legal permanent resident.  The UAS must also be registered.  If the UAS is less than 55 pounds and more than 0.55 pounds, registration can be done online.  If the UAS is more than 55 pounds, registration must be done by paper.  In order to register, an e-mail address, credit or debit card, and physical address and mailing address are required.  The cost of registration is $5.00, and it is valid for 3 years.

To fly a UAS for fun or recreation, certain safety guidelines must be followed.  The safety guidelines are as follows:

  • Fly the UAS at or below 400 feet;
  • Make sure to keep the UAS within sight;
  • Do not fly near other aircraft;
  • Do not fly over groups of people, over stadiums or sporting events, near emergency response efforts, or under the influence of drugs or alcohol, and
  • Make sure to be aware of airspace requirements.

Government Entities

It should be noted that a government entity, such as a law enforcement agency, public university, state government, or local municipality, may fly a UAS.  To operate a UAS, a government entity must either follow Part 107 (discussed above) or get a blanket public Certificate of Waiver or Authorization (“COA”).

With the above in mind, prepare to take flight!


For questions or more information on the topic of this blog post, please contact:

Christina M. Nicholas – MRR Cleveland
Phone: 440.287.8296
Fax: 440.248.8861
Email: cnicholas@mrrlaw.com

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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.”

 

 

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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

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Kentucky’s Court of Appeals Says Jail Surveillance Video Should be Made Part of Administrative Record

The Kentucky Court of Appeals recently issued a decision addressing the type of evidence that should be presented in a jail disciplinary proceeding. In Lawless v. Conover, 2015-CA-000039-MR, 2016 WL 2981580 (Ky. Ct. App. May 20, 2016), an inmate disputed an Adjustment Officer’s (AO) finding that she was guilty of inflicting an injury on a correctional officer. The inmate had requested the AO to view the surveillance camera footage of the incident, because she believed the video supported her version of the events.  Despite finding the inmate guilty of the charge, the AO made no mention of the surveillance footage in her written determination. The inmate subsequently filed suit, challenging the validity of the disciplinary proceeding.

The defendants filed a motion to dismiss the plaintiff’s complaint. In support of that motion, they submitted an affidavit from the AO which stated that, although she had reviewed the video, her finding was not based on it. The case was dismissed by the trial court, as the Court found the plaintiff had “received due process and there is some evidence in the record to support the findings of the AO.”

The Court of Appeals would ultimately reverse the trial court’s dismissal, noting that “specific holdings of the U.S. Supreme Court necessitate particular treatment of an inmate’s request that the prison tribunal consider exculpatory evidence.” Citing Ramirez v. Nietzel, 424 S.W.3d 911 (Ky. 2014), the Court noted that an adjustment officer conducting a hearing must, if requested by an inmate, review security footage and consider its weight in making a finding of guilt or innocence. Additionally, the hearing officer must indicate in his or her written statement that they undertook a review of the video evidence and state whether it confirms or contradicts the inmate’s version of events. The Court also noted the inmate should have been provided access to the surveillance footage or be given a legitimate explanation as to why she was not. Moreover, the surveillance footage should have been reviewed by the circuit court.

Perhaps most importantly, the Court declared “it is the responsibility of the state agency (here, the Department of Corrections) to prepare a record for filing with the circuit court before that court declares the prisoner’s rights.” In other words, the Department of Corrections was required to submit the surveillance footage to the Court. For these reasons, the lower court’s dismissal of the inmate’s lawsuit was reversed, and the Department of Corrections was required to make the surveillance video available for the circuit court’s consideration.

Officials in Kentucky responsible for inmate discipline would be well served to take note of this important opinion. For any questions about the implications of the Lawless or Ramirez decisions or evidentiary issues related to jail discipline in general, please contact the attorneys at Mazanec, Raskin & Ryder Co., L.P.A.


Curtis M. Graham

 

 

Curtis M. Graham
859.899.8516
cgraham@mrrlaw.com

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