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Ohio Adds New Exceptions to the Definition of “Public Records” Relating to Dash-Cam and Body-Cam Recordings

By: Ami Imbrogno

In this day and age, it seems that not a week goes by without turning on the evening news, logging onto Facebook, or firing up a YouTube application and seeing videos depicting police encounters with civilians.  Many of these videos are recorded on private cell phones and released by private citizens; however, some of these videos have been obtained by individuals, news sources, or other entities via public record request, the laws surrounding which are changing.

On January 7, 2019 Governor Kasich signed into law HB 425, “Declare police body camera recordings not to be public records,” to be effective April 8, 2019.  The law does not declare that all dash-cam and body-cam recordings are not public record, but instead declares that “restricted portions” of the recordings are not included in the definition of public record.  The law defines “restricted portions as the following:

  • The image or identity of a child or information that could lead to the identification of a child who is a primary subject of the recording when the law enforcement agency knows or has reason to know the person is a child based on the law enforcement agency’s records or the content of the recording;
  • The death of a person or a deceased person’s body, unless the death was caused by a peace officer or the consent of the decedent’s executor or administrator has been obtained;
  • The death of a peace officer, firefighter, paramedic, or other first responder, occurring while the decedent was engaged in the performance of official duties, unless consent of the decedent’s executor or administrator has been obtained;
  • Grievous bodily harm, unless the injury was effected by a peace officer or the consent of the injured person or the injured person’s guardian has been obtained;
  • An act of severe violence against a person that results in serious physical harm to the person, unless the act and injury was effected by a peace officer or the consent of the injured person or the injured person’s guardian has been obtained;
  • Grievous bodily harm to a peace officer, firefighter, paramedic, or other first responder, occurring while the injured person was engaged in the performance of official duties, unless the consent of the injured person or the injured person’s guardian has been obtained;
  • An act of severe violence resulting in serious physical harm against a peace officer, firefighter, paramedic, or other first responder, occurring while the injured person was engaged in the performance of official duties, unless the consent of the injured person or the injured person’s guardian has been obtained;
  • A person’s nude body, unless the person’s consent has been obtained;
  • Protected health information, the identity of a person in a health care facility who is not the subject of a law enforcement encounter, or any other information in a health care facility that could identify a person who is not the subject of a law enforcement encounter;
  • Information that could identify the alleged victim of a sex offense, menacing by stalking, or domestic violence;
  • Information, that does not constitute a confidential law enforcement investigatory record, that could identify a person who provides sensitive or confidential information to a law enforcement agency when the disclosure of the person’s identity or the information provided could reasonably be expected to threaten or endanger the safety or property of the person or another person;
  • Personal information of a person who is not arrested, cited, charged, or issued a written warning by a peace officer;
  • Proprietary police contingency plans or tactics that are intended to prevent crime and maintain public order and safety;
  • A personal conversation unrelated to work between peace officers or between a peace officer and an employee of a law enforcement agency;
  • A conversation between a peace officer and a member of the public that does not concern law enforcement activities;
  • The interior of a residence, unless the interior of a residence is the location of an adversarial encounter with, or a use of force by, a peace officer; and,
  • Any portion of the interior of a private business that is not open to the public, unless an adversarial encounter with, or a use of force by, a peace officer occurs in that location.

Those exceptions that allow disclosure upon receipt of consent of the subject may only be released with the consent if one of the following apply:

  • The recording will not be used in connection with probable or pending criminal proceedings; or,
  • The recording was used in connection with a criminal proceeding that has been dismissed or for which a judgment has been issued, and will not be used again in connection with any probable or pending criminal proceedings.

 The law also provides that if a public office denies a request to release a restricted portion of a recording, the requestor may file a complaint for mandamus with the court of claims, which will allow the release if it determines by clear and convincing evidence that public interest substantially outweighs privacy interests and other interests asserted to deny release.

Many of these components of the definition fall within other exceptions to public records and government entities are probably already withholding or redacting recordings that contain those components, such as confidential law enforcement investigatory records or information pertaining to the recreational activities of a person under the age of eighteen. However, government employees who handle the release and redaction of records should familiarize themselves with the new definition and continue to follow all other laws relating to public records.  For example, records should be redacted where possible and only fully withheld if redaction would create a substantial burden or would remove all value from the recording.

Government entities should also review their records retention schedules to make certain it addresses this type of footage.  They should remember that even if these materials are no longer public record, they could be relevant to future litigation.

Finally, the new law does not make it clear what procedures are required to be followed in obtaining “consent” to release records; it does not prescribe what lengths the government entity needs to go to in order to obtain consent or in which form the consent must be.  Those who obtain consent to release records should in the minimum ensure that consent is given knowingly and in writing.


For more information on this matter or any other civil rights and government liability questions, contact Ami at aimbrogno@mrrlaw.com or 440.505.2713.

Ami is an Attorney in MRR’s Cleveland office and focuses her practice on civil rights and government liability defense, employment and labor defense, public sector law, and education law.

 

US Supreme Court holds that Cell-Site Data is Generally Protected by the Fourth Amendment

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.


For more information or questions regarding this article, contact Ami Imbrogno at aimbrogno@mrrlaw.com.

Ami Imbrogno

Liability for Cruel and Unusual…Driving? The Sixth Circuit Court of Appeals Weighs In…

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.


For more information or questions regarding this article, contact Ami Imbrogno at aimbrogno@mrrlaw.com or Tami Hannon at thannon@mrrlaw.com.

Ami Imbrogno

Tami Hannon

OVI Convictions Up in Smoke – How Litigating Driving Under the Influence of Drugs Cases Differs from Litigating Driving Under the Influence of Alcohol Cases

Most people are familiar with the National Highway Traffic Safety Administration (NHTSA)’s “Drive Sober or Get Pulled Over” campaign. Throughout the years, a lot of advertisement money from various organizations has been used to educate and persuade people about the dangers of “drinking and driving.” However, little attention has been paid to the ever-increasing incidents of drivers taking to the road while under the influence of a drug.

While driving under the influence of alcohol and driving under the influence of a drug or drugs are both criminalized under Ohio Revised Code section 4511.19 and while the elements of the respective crimes are the same, investigation and prosecution of a driving under the influence of alcohol case can be vastly different from investigation and prosecution of a driving under the influence of a drug or drugs case.

When an officer suspects a driver of being under the influence of alcohol, he or she can look for very specific clues, the most telling of which are an odor of alcoholic beverage on or around the driver’s person, or an admission by the driver that he or she consumed alcohol recently. Most officers, and lay people who may end up on a jury, are familiar with the scent of alcoholic beverage, can likely associate certain behaviors with intoxication by alcohol, and are aware of the general time frame in which alcohol has an effect after consumption.

But what happens when an officer pulls over a driver, and the driver acts very strangely, or even erratically, but there is no sign that alcohol is consumed, there are no drugs in sight, and the driver does not admit to having consumed any particular substance? If a blood or urine test is obtained, this will frequently answer the question of what substance has been used, and in what quantity. However, what happens when the driver refuses a test, a test is unavailable, or results are lost in the mail?

Many of Ohio’s appellate courts have held that speculation as to which drug a driver may be under the influence of is not sufficient to convict a driver of OVI. The prosecution must present evidence sufficient to establish a nexus between the driver’s impaired condition and any type of drug of abuse. While circumstantial evidence may be used to convict a driver, such evidence must point to the use of a particular drug of abuse (for example, empty prescription bottles that have been filled very recently, or the odor of burnt marijuana). Appellate courts have also held that the prosecution must present some evidence of how that particular drug affected the defendant (in the form of expert testimony or testimony from someone familiar with the driver and how he or she acts while using the drug), and essentially how this effect caused the impairment.

Furthermore, most officers use the Horizontal Gaze Nystagmus (HGN) test, outlined in the NHTSA manual, to determine whether a driver may be intoxicated. According to the NHTSA manual, when performed correctly, the HGN can help an officer determine, with 88% accuracy, whether a suspect has a blood alcohol content of .08 or higher, or may suggest that the subject is under the influence of a CNS depressant (like bartbituates or sleep medications), an inhalant, or a dissociative drug, like PCP. However, the HGN cannot determine whether the driver is under the influence of many other drugs, including marijuana. Some Ohio courts have refused to admit the results of an HGN test into evidence in cases in which the defendant has been suspected of driving under the influence of marijuana.

With the increase of people driving under the influence of drugs and the push to legalize marijuana, the issue of driving under the influence of a drug or drugs of abuse will not go away. We will likely see an increase in court decisions regarding the topic.

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MRR Ohio Legislation Updates: January 1, 2016 – January 14, 2016

Notes from the House of Representatives:

  • H.B. 423 was introduced to specify that an order for active military service or other documentation regarding the call to order of an individual in the Armed Forces of the United States or the Ohio organized militia is not a public record
  • H.B. 424 was introduced to specify that military records provided by an officer or employee of a township or municipal corporation to the township or municipal corporation for personnel matters are not public records

Notes from the Senate:

  • S.B. 258 was introduced to establish the duties and authority of the Attorney General to investigate and prosecute cases relating to the death of a person caused by a peace officer

For questions or more information on MRR’s Ohio Legislation Updates, contact:

Stacy V. Pollock  – MRR Columbus
Phone: 614.324.0163
Email: spollock@mrrlaw.com

 

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MRR Ohio Legislation Update: December 18, 2015 – December 31, 2015

Notes from the Senate:

  • S.B. No. 256 was introduced to generally require law enforcement agencies to maintain a policy designed to eliminate biased policing and status-based profiling

For questions or more information on MRR’s Ohio Legislation Updates, contact:

Stacy V. Pollock  – MRR Columbus
Phone: 614.324.0163
Email: spollock@mrrlaw.com

Stacy Pollock 8860

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MRR Ohio Legislation Updates: December 4, 2015 – December 17, 2015

Notes from the House of Representatives:

  • H.B. No. 403 was introduced regarding the financing of capital improvement projects in this state by another state or a political subdivision of another state
  • H.B. No. 407 was introduced to require law enforcement agencies that use body cameras to adopt written policies for operation of the cameras and to require agencies to make the adopted policies available to the public
  • H.B. No. 207 was passed by the House, to allow a state fund employer to have a workers’ compensation claim that is likely to be subrogated by a third party paid from the surplus fund account in the state insurance fund rather than charged to the employer’s experience
  • The House approved the Senate’s amendments to H.B. No. 259, which regulates certificates of insurance prepared or issued to verify the existence of property or casualty insurance coverage, updates prompt payment requirements, and requires the administrator of Workers’ Compensation to reduce the transfer of negative experience to a successor employer under certain circumstances
  • The House approved the Senate’s amendments to H.B. No. 340, which extends the operation of the Local Government Innovation Council until December 31, 2019, and modifies political subdivision eligibility for the Local Government Safety Capital Grant Program
  • The House approved the Senate’s amendments to H.B. No. 56, which prohibits public employers from including on an employment application any question concerning the criminal background of the applicant, prohibits a felony conviction from being used against an officer or employee when a public employer is undertaking certain employment practices, unless the conviction occurs while the officer or employee is employed in the civil service, removes the bar against sealing a conviction record when the victim is 16 or 17 years old, and provides that certain independent providers are not employees of the state or a political subdivision
  • H.B. No. 413 was introduced to add to the purposes for which a board of township trustees may go into executive session, to permit a township to charge for recycling services, to reduce the population threshold for a township to adopt a limited home rule form of government, to authorize a township to purchase, lease, or provide underwater rescue and recovery equipment for fire and rescue purposes, to authorize boards of township trustees to pay for group life insurance for any employee, to make other changes to the township laws, to allow taxing units to use the proceeds of a fire, police, or emergency services tax levy to pay costs related to the service for which the tax is levied, and to expand the public infrastructure improvements townships, municipal corporations, and counties may pay for using money from their public improvement tax increment equivalent funds
  • H.B. No. 415 was introduced to create the business linked deposit program, to permit credit unions to participate in that program, to permit credit unions to participate in the agricultural linked deposit program, and to make other changes to the linked deposit law
  • H.B. No. 416 was introduced to enable state colleges and universities to establish joint self-insurance pools

Notes from the Senate:

  • S. B. No. 250 was introduced to prohibit community schools from using state moneys to pay for advertising, recruiting, or promotional materials
  • S. B. No. 251 was introduced to regulate the use of drones for gathering evidence and information by law enforcement officers in Ohio
  • The Senate approved the House’s amendments to S.B. No. 223, which makes changes to the health coverage benefit limits and coverage exclusions for life and health insurance guaranty associations, amends the law relating to reinsurance contracts, updates prompt payment requirements, and makes changes to the effective date of a provision relating to subrogation

For questions or more information on MRR’s Ohio Legislation Updates, contact:

Stacy V. Pollock  – MRR Columbus
Phone: 614.324.0163
Email: spollock@mrrlaw.com

Stacy Pollock 8860

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