MRR Law Enforcement Blog
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 (email@example.com) is a Partner in MRR’s Cleveland Office and Curt Graham (firstname.lastname@example.org) is an Associate in MRR’s Lexington Office. For more info, please contact MRR via email or call 440.248.7906.
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 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…”
 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.
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.
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.
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.
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.