MRR Law Enforcement Blog

“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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Law Enforcement Blog – Birchfield v. North Dakota: How it Affects OVI Prosecutions under the U.S. Constitution and Ohio Law

The collection and analysis of a person’s breath, blood, or urine is considered a “search” under the Fourth Amendment, meaning that this collection and analysis is only constitutional if a warrant is first obtained, or if any of the well-established exceptions to the search warrant requirement exist. In the blood-alcohol test realm, the two most frequently discussed exceptions are the exigency (urgency) exception, and the search incident to arrest.

In 2013, the Supreme Court decided Missouri v. McNeely, in which it held that the natural dissipation of alcohol in a person’s blood could sometimes create an exigent circumstance, but that the fact that alcohol dissipates does not create a per se exigency allowing for a warrantless blood test of an OVI suspect. A determination of whether an exigency exists and whether a warrant is required prior to collecting a blood sample is to be decided on a case-by-case basis. However, McNeely did leave open the question as to whether the warrantless collection of a blood sample is permitted under the search incident to arrest exception.

In the recently decided case of Birchfield v. North Dakota, the U.S. Supreme Court determined that blood tests are a significant intrusion on an individual’s privacy and that the individual’s privacy interests outweigh the state’s need to obtain evidence in driving under the influence of alcohol prosecutions.  As a result, the search incident to arrest exception cannot be used to search an OVI suspect’s blood without a warrant.  Breath tests, on the other hand, are far less intrusive than blood tests, and do not allow the government to collect information about the suspect that may be irrelevant to the OVI prosecution. As a result, law enforcement may continue to search suspects’ breath without first obtaining a warrant.

In cases in which a breath test is not feasible and law enforcement wishes to have the blood of a suspect tested for alcohol content, an officer must first obtain a warrant, or may rely on the exigency exception if a true exigency exists – for example, a warrant will be impossible to obtain within a reasonable amount of time.

The most notable impact of Birchfield upon Ohio law is that criminal penalties may no longer be imposed for the refusal of a blood test. In Ohio, an OVI with a refusal is technically a different offense than a regular OVI, which carries greater penalties. In the wake of Birchfield, a suspect cannot be subject to the “OVI with refusal” offense if he or she refuses a blood test. However, suspects may still be charged with the heightened offense if they refuse a breath test. Furthermore, Administrative License Suspensions are considered civil penalties, and may be imposed for the refusal of any type of test. Finally, the refusal of any type of test, including a blood test, may still be used as evidence against a suspect at trial.

In the wake of Birchfield, law enforcement officers should offer breath tests instead of blood tests when investigating a person for OVI when available. Furthermore, officers should seek warrants to obtain blood samples from suspects when breath testing methods are unavailable, and should only rely on the exigency exception when a warrant cannot possibly be obtained.

It is notable that Birchfield does not discuss urine tests, and law enforcement should err on the side of caution when seeking urine tests. Breath testing methods should still be favored over urine tests, and because urine tests could be easily analogized to blood tests by courts, warrants should be obtained prior to seeking urine tests, if possible.

Finally, Birchfield does not discuss blood tests in the driving under influence of drugs context. Part of the reason a breath test can be obtained without a warrant while a blood test cannot in the driving under the influence of alcohol context is because a breath test can adequately serve law enforcement interests when detecting alcohol. However, the same is not true with detecting drugs. As the permissibility of obtaining blood samples without first securing a warrant in the driving under the influence of drugs context is not clear, officers should continue to err on the side of caution and obtain search warrants prior to obtaining blood tests when possible.