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Use of Force During a Medical Emergency: A New Standard from the Sixth Circuit

By: Tami Z. Hannon & Curtis M. Graham

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 (thannon@mrrlaw.com) is a Partner in MRR’s Cleveland Office and Curt Graham (cgraham@mrrlaw.com) is an Associate in MRR’s Lexington Office. For more info, please  contact MRR via email or call 440.248.7906.


 

The Right To Investigate Versus The Right To Privacy – The Apple Vs. FBI Debate

By: Tami Zupkow Hannon, Esq.

Few things will unify Americans more than stories of terrorist attacks, especially alleged terrorist attacks on American soil. The need for, and call to, investigate those claims is undeniable. In doing just that, the FBI came into possession of the iPhone of a suspected terrorist responsible for the San Bernardino shootings last year. In accordance with the Fourth Amendment, the FBI obtained a search warrant to search the contents on the phone for additional information regarding the attacks or other potential attacks. Warrant safely in hand, the FBI now faces yet another problem – accessing that data. Unlike a house where a door can be breached or entered, the iPhone is locked and encrypted. The FBI has but 10 guesses for the 4 digit PIN number (about 10,000 possible combinations) before the phone will wipe the drive, taking all possible information with it.

Enter the lawsuit. The FBI filed suit in federal court in California to compel Apple to assist it with unlocking the iPhone. The FBI won the initial battle, with the Magistrate ordering Apple to create software that would bypass or disable the self-destruct security, enable the FBI to submit passcodes to the phone for testing against the real password (effectively “guessing” the password) and erasing any added delay between attempts at the passcode. Importantly, Apple was not ordered to directly unlock the phone, but rather to make it possible for the FBI to try to unlock it without jeopardizing the contents of the phone. Apple is resisting on the basis that to create such a device would be to allow Pandora out of her box. Once the software is created, it cannot be uncreated and could be used again in future cases. Further, the creation of such software would prove to the world that it is possible to create a program to bypass the iPhone’s security features, something that can potentially encourage the less civic minded. Due to Apple’s refusal to comply with the Court’s order, the FBI filed a Motion to Compel.

The FBI has pursued its claims against Apple using a 1789 law known as the “All Writs Act.” The Act gives a court authority to order a third party to provide non-burdensome technical assistance to aid in the execution of a valid warrant. There are two main questions at issue. The first is whether the assistance is “non-burdensome” as Apple has to actually create the programming being sought. The FBI responds that Apple is in the business of writing iPhone software such that the burden should be minimal to write this particular software. The second is whether Apple is so far removed from the underlying investigation that it cannot be brought in against its will. Both the FBI and Apple argue the same facts to support their claims – Apple is responsible for the creation and distribution of the phone. The FBI asserts that Apple designed the phone such that it is indispensable in creating the code and assisting in unlocking the phone. Apple claims the limited role of designing and distributing the phone removes it from the ultimate end usage by the consumer.

There is also a potential issue under the Fourth Amendment. While the FBI possesses a valid search warrant, the search must be done in a “reasonable” manner. Apple questions whether drafting it to write code that does not currently exist to evade security measures that it put into place is a “reasonable” execution of the warrant.

What is really at issue here? Apple has designed its phones to be fortresses. The latest iPhone 8 is designed to be fully encrypted such that the phone itself cannot even read the data stored in it unless a valid password is entered. This level of encryption makes it impossible for Apple to respond to warrants by law enforcement to extract data from a phone or user. While Apple complies with law enforcement subpoenas, there has long been tension between Apple and law enforcement due to Apple’s storage policies and the limited amount of data that it makes available for law enforcement to subpoena. This case has been selected as the test case to start developing the law to challenge Apple’s security policies. If Apple wins, law enforcement may find itself handicapped in investigations moving forward as it may encourage other companies to take similar stances, resulting in making it more difficult or impossible to follow up on some leads or obtain needed evidence. If the FBI wins, it begins laying the groundwork for circumstances where a company may have “too much” security on its phones, resulting in capping the level of security an electronic device can have built in. The end result? Only time will tell.


For questions or more information on “The Right to Investigate Versus The Right to Privacy – The Apple vs. FBI Debate,” contact:

Tami Hannnon


Tami Zupkow Hannon
  – MRR Cleveland
Phone: 440.424.0009
Fax: 440.248.8861
Email: thannon@mrrlaw.com

MRR Legislative Update: Senate Introduces SB 268 to Reform Employment Discrimination Cases

By: Tami Zupkow Hannon, Esq.

On February 1, 2016, SB 268 was introduced in the Ohio Senate. This bill, if passed, would reform the current state anti-discrimination laws. Of particular note, the proposed bill:

  • Reduces the time to file a state law discrimination claim from the current 6 years to 1 year;
  • Enlarges the current 180 day time frame to file a charge with the Ohio Civil Rights Commission to 365 days;
  • Adopts damage caps on the amount of punitive and non-economic damages that can be awarded in a discrimination claim. The cap would be on a sliding scale based on employer size with damages ranging from $50,000 to $300,000;
  • Refines the definition of “employer” to remove reference to “any person acting directly or indirectly in the interest of an employer;”
  • Clarifies that personal liability should not be imposed on managers, supervisors or coworkers for employment based discrimination claims (but note that personal liability may still be possible under the aiding and abetting provisions of R.C. §4112.02(J)); and
  • Limits the ability to file a civil suit in some instances where the claim was pending or previously filed with the Ohio Civil Rights Commission.

As the bill has only recently been introduced, it is likely that there will be revisions to the language as additional comments, debate and analysis is conducted. We will continue to monitor the status of this bill and provide updates as it proceeds through the General Assembly.


For questions or more information on “Senate Introduces SB 268 to Reform Employment Discrimination Cases,” contact:


Tami Zupkow Hannon  – MRR Cleveland
Partner
Phone: 440.424.0009
Fax: 440.248.8861
Email: thannon@mrrlaw.com

News Release: MRR Promotes Tami Zupkow Hannon to Partner

Tami HannnonMazanec, Raskin & Ryder Co., LPA (MRR) is pleased to announce Tami Zupkow Hannon has been elected to the firm’s partnership.

Tami joined MRR’s Cleveland office in 2007. Her practice concentration is civil rights defense. She has represented numerous governmental agencies, elected and appointed officials, and has extensive experience in defending law enforcement departments, officers and correctional facilities. She combines her civil defense experience with her knowledge of employment law to provide timely, personalized and comprehensive employment guidance to both public and private employers. Tami has been named an Ohio Super Lawyer Rising Star for Municipal Law since 2013. She graduated magna cum laude from the University of Akron School of Law. She received her undergraduate degree from Geneva College in Beaver Falls, Pennsylvania.

“We are very proud of Tami’s accomplishments and extremely pleased to welcome her as a partner,” said MRR Managing Partner and President Joe Nicholas. “She is a remarkably talented and creative lawyer.”