Congrats to MRR Lexington’s Barry Miller, Chrissy Vessels and Tia Combs for obtaining a reversal of a defamation verdict rendered against its client, R.J. Palmer, stemming from an advertisement Mr. Palmer used in a race for a Kentucky Senate seat.
Case Summary: The opponent, Dr. Ralph Alvarado, had been a vocal critic of legislation in Kentucky intended to limit the prescription of certain narcotic painkillers. Mr. Palmer’s consultant created an advertisement using footage from a court hearing involving a patient of Dr. Alvarado’s, who was in possession of narcotics. The judge in the hearing “clearly expressed her displeasure with Dr. Alvarado,” according to the opinion.
Dr. Alvarado argued at trial that the consultant spliced the courtroom video, presenting certain statements out of order. The Court of Appeals held that the ad still accurately stated the gist of the judge’s remarks. Because the gist was accurate, and because the ad was protected political speech, the Court of Appeals reversed a unanimous jury verdict. It quoted a Kentucky Supreme Court case, holding that “unfettered political discussion is a necessary and fundamental principle of our constitutional system of government, assuring that political decisions will be made through persuasion rather than power.” It also found that the political context of the ad was important. Those who enter politics must understand that “politics ain’t bean-bag,” wrote it, quoting a renowned newspaper columnist.
MRR is proud to have assisted its client in upholding this fundamental principle of constitutional government.
By: Ami Imbrogno
Technology has changed rapidly over the past 50 years. Indeed, just 15 years ago, most people did not imagine that they would be carrying the entire world wide web in one pocket or purse, or that all of their movements would be tracked via cell phone. As technology has developed, more people have become increasingly concerned about the sheer amount of data that is collected by mobile telephone devices, and how this data could be used to invade their privacy. One of last week’s decisions from the Supreme Court, Carpenter v. United States, addressed how privacy concerns, vast amounts of electronic data, and the Fourth Amendment could intersect.
Eight years ago, a string of robberies took place in Michigan and Northern Ohio. Police obtained phone numbers of some suspects involved in the robberies, and subpoenaed cell-site location information (CSLI) for the numbers, absent a search warrant, which they used as evidence placing Carpenter nearby each of the robberies at the times they occurred. It is not uncommon for law enforcement to obtain this information, and this type of evidence is sometimes even used in insurance fraud prosecutions.
Under the Stored Communications Act, the police did not need or a warrant supported by probable cause to obtain these records from Carpenter’s cell phone provider, but instead, only needed “reasonable grounds” for believing that the records were “relevant and material to the ongoing investigation.” Carpenter moved to suppress the CSLI evidence, alleging that it was the product of an illegal search under the Fourth Amendment. The trial court denied the motion, and the Sixth Circuit affirmed the denial based on a decades-old concept called the “third-party doctrine.”
The third-party doctrine was an eventual product of the Supreme Court’s 1967 landmark decision Katz v. United States. In Katz, the Court announced the rule that under the Fourth Amendment, a “search” occurs when the government intrudes into a sphere in which one has a reasonable expectation of privacy, so long as society is also prepared to recognize that expectation as reasonable. In Katz, the court determined that one has a reasonable expectation of privacy in a conversation held within a closed telephone booth – a concept that seems foreign to those living in 2018. Since 1967, Fourth Amendment “search” jurisprudence has been based on Katz. Specifically, in the late 1970s, the Court held in United States v. Miller and Smith v. Maryland that one has no reasonable expectation of privacy in papers or effects that he or she trusts to the hands of a third party – i.e., banking records or records of phone numbers dialed. Thus, the third-party doctrine was born.
Perhaps recognizing that most people entrust their entire lives to third parties in the digital age (who doesn’t have their emails, schedules, search histories, and location data stored by a third party like Google or Apple?) the Court ruled in Carpenter’s favor and crafted a narrow decision holding that generally, the government’s acquisition of cell-site records constitutes a search under the Fourth Amendment. Though the records are stored by third parties, cases involving CSLI are inherently different than previous cases involving bank records or dialed phone numbers because they provide a complete picture of a person’s movements for a period extending to five years. And, though CSLI technology was less complete at the time of Carpenter’s arrest and could only provide information about a general area in which a particular mobile device is located, the Court expects that CSLI will only get more precise as technology improves.
The Court was careful to clarify that its decision does not apply to any aspect of technology other than CSLI, and that it was not announcing an opinion relating to security cameras, national security measures, or other forms of technology. However, Carpenter opens the door for defendants to at least argue that certain types of technological evidence cannot be obtained absent a warrant, if they implicate privacy interests. If the third-party doctrine does not apply to CSLI, to what other types of evidence will courts refuse to apply the doctrine? What records are so intrusive upon privacy that the third-party doctrine does not apply to them?
Furthermore, the majority opinion in Carpenter was only supported by five of the nine justices. All four dissenting justices filed separate dissenting opinions. Justice Gorsuch and Justice Thomas both suggested in their dissents that the Court scrap the “reasonable expectation of privacy” test announced in Katz and consider that the founding fathers originally intended the Fourth Amendment to be a protection of property rights, not a protection of “privacy.” A search would therefore occur when the government searched a person’s “property.”
The ideas set forth by Justice Gorsuch and Justice Thomas were not unlike those espoused by the late Justice Scalia in United States v. Jones (which involved the placement of a GPS tracker on a defendant’s vehicle). Should these justices persuade other justices to their point of view, or if like-minded justices join the Court, we could see a radical shift in the definition of a “search” under the Fourth Amendment, which would necessitate new rules for when warrants are required prior to a search.
It is also unclear under Carpenter whether police will be able to obtain these records if a third party voluntarily provides them to police, absent solicitation from law enforcement. Specifically, if an insurance company were to obtain CSLI from a provider, and then the insurance company provides that information to the police absent a police request, will the evidence be available to use in a prosecution of the insured for insurance fraud? Prior to last Friday, it would be easy to say that the records could likely be used without implicating the Fourth Amendment. In the wake of Carpenter, however, it is not unforeseeable that a defendant may try to argue that the special character of CSLI bars the police from using the non-solicited records, too.
For the time being, it is clear that under Carpenter, a “search” occurs when the government obtains CSLI. One must not forget that warrants only need to be obtained for “unreasonable” searches. The Court did not state how much CSLI data must be sought before a search is considered unreasonable. In addition, the Court also held that exceptions to the warrant requirement, like exigent circumstances, would still apply to CSLI.
The current best practice for law enforcement in the wake of Carpenter is to obtain a warrant whenever possible when seeking CSLI. Should the data be needed in exigent circumstances – for example, quickly to save a person’s life – a warrant may not be needed. However, if an officer has probable cause to support a warrant, and exigent circumstances do not exist, it is best to obtain a warrant, no matter how much data is being requested. Moreover, law enforcement should not be surprised if searches not backed by warrants are challenged more frequently in courts of law, and may expect to see further changes to the law and procedure down the road.
By: Ami Imbrogno & Tami Hannon
Deputies and corrections officers are faced with many situations and decisions which potentially expose them to liability. They are required to make split second decisions on whether and how much force to use. They are required to evaluate whether there is a good basis to arrest someone. Based on new law from the Sixth Circuit Court of Appeals, they are also now potentially liable to those in their custody for allegations of reckless driving.
In Scott v. Becher, a prisoner brought various constitutional claims surrounding injuries he allegedly sustained during a transfer to another facility. Specifically, Scott alleged that the transportation officer drove over the speed limit, swerved, and “laughed and accelerated” in response to inmates’ pleas to him to slow down. Scott plead in his complaint that, as a result of Becher’s reckless driving, the bus hit a bump, became airborne, and threw Scott into the air, allegedly causing him injury to his head, neck, and back. He alleged that the reckless driving constituted a violation of his Eighth Amendment rights to be free from cruel and unusual punishment, and was deliberately indifferent to his safety.
The officer defended on the basis that he was entitled to qualified immunity – that is, he may only be held liable in civil suits for civil rights violations if they violate a plaintiff’s clearly established Constitutional right. While courts in other circuits have considered whether reckless driving states a viable claim, the Sixth Circuit Court of Appeals had not weighed in on this issue. First, the Court found that a claim of reckless driving would constitute cruel and unusual punishment under the Eighth Amendment as “a ‘rough ride’ is a particularly cruel means of punishment.” The Court then went on to find that the officer had “fair warning” from other courts that his actions may be improper such that he was not entitled to qualified immunity despite the Court never before addressing this question. Specifically, the Court found that “in light of the obviousness of the constitutional violation, Becher could not reasonably have believed that driving recklessly while Scott and the other prisoners were not wearing seatbelts was lawful.”
Scott also claimed that the officer violated his Constitutional rights after he sustained the injury by taking him to the destination prison instead of directly to a hospital, despite Scott’s requests for immediate medical attention. However, the Court of Appeals agreed that Becher was entitled to qualified immunity on the deliberate indifference to medical needs claim. It stated “we cannot say that any reasonable officer would have known that the Constitution required Becher to drive the prison bus immediately to the hospital.”
In light of this, law enforcement officials should ensure that they are properly training their officers on vehicle operations, and safely securing inmates or passengers during transport. Discipline should be issued for improper driving or violations of the policy.
Partners Tami Hannon and Lisa Gentile will attend this sold out conference where MRR is the featured sponsor of the breakout session, ” Connect on Purpose: Building Meaningful Relationships.” Nearly 600 attendees are expected to attend this blockbuster event.
Visit www.weldoh.org for more information.
Mazanec, Raskin & Ryder (MRR) is proud to announce that Curtis M. Graham and Tia J. Combs, associates in the firm’s Lexington, Kentucky office, were admitted to the practice of law in Indiana by the Indiana State Supreme Court on May 15, 2018. Their admission to the Indiana Bar adds to MRR’s depth and ability to provide quality legal services to its clients on a regional basis.
“Curt and Tia are the perfect choices to help drive our firm’s growth into Indiana,” said Joseph F. Nicholas, MRR’s Managing Partner and President. “Most importantly, being admitted into Indiana will open doors for their own professional development as Next Generation lawyers at the firm.”
In order to practice law in Indiana, one must be a graduate of an ABA approved law school, a person of good moral character, and have taken and passed the two day Indiana Bar Examination, consisting of the Multistate Performance Test (“MPT”), the Indiana Essay Examination, and the Multistate Bar Examination (“MBE”).”
Curt focuses his practice on civil rights and governmental liability issues, including the representation of police officers, municipalities, correctional institutions, and city officials. In addition to his representation of governments and government officials, Curt is experienced in all aspects of insurance litigation, ranging from coverage and bad faith disputes to insurance defense litigation. Further, he has handled matters for both large and small business owners in the areas of commercial law, subrogation, collections, data security, and cyber security law.
Tia’s primary areas of practice are school law and insurance defense litigation. She has considerable experience representing school boards throughout the Commonwealth of Kentucky in matters ranging from employment and personnel conflicts to student disciplinary matters and civil rights to contract negotiation and drafting.
In the course of representing her clients, Tia has litigated cases in the defense of school boards, administrators, and teachers, and has also served as counsel defending individuals and companies, large and small, against civil claims.
Mazanec, Raskin & Ryder (MRR) is pleased to announce that Steven K. Kelley has joined the firm’s Cleveland office as a Partner in its Professional Liability Practice Group.
Prior to joining MRR, Steve worked at CNA Insurance Company for over 12 years, initially as a Managing Trial Attorney and then an Assistant Vice President in the company’s litigation department.
At MRR, his practice will focus on the defense of architects and engineers as well as other professional liability matters and product liability claims.
“With Steve’s experience and leadership in the insurance industry, his addition highlights our commitment to enhancing both the breadth and quality of services that we can provide to our clients,” said MRR President and Managing Partner Joseph F. Nicholas, Jr. said. “We are thrilled to welcome him to the firm.”
Mr. Kelley earned his Juris Doctorate from Case Western Reserve University School of Law and he received his Bachelor of Arts degree from Ohio Northern University. He is active professionally as a member of the Ohio Bar Association, Claims and Litigation Management Alliance, Cleveland Association of Civil Trial Attorneys (Former President), Defense Research Institute, and is a Life Member of the Eighth Judicial District Conference.