MRR Law Enforcement Blog

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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