Home » Articles posted by Ed (Page 2)

Author Archives: Ed





Subscribe to receive notifications of new posts by email.

Sixth Circuit addresses two common questions in police shootings

While this blogs primary focus is on Oregon, Washington and federal cases in the Ninth Circuit, I do keep my eye out for interesting cases from the rest of the county. One such case is the Sixth Circuits decision in Krause v. Jones et al., which upheld the District Courts grant of summary judgment to the defendants in a police shooting.

The Sixth Circuit addresses two issues often raised in police shootings, why didn’t the officers wait the suspect out, and why did they shoot the suspect so many times. It’s a thoughtful decision that gives pause for consideration of these issues. Not just the majority opinion! Judge Marbley’s concurrence is equally thought provoking, particularly in light of the post Ferguson debate over “militarization” of the police.
For those of you looking for the quick answers:

  • The court took no issue with the 20 rounds the officer shot. Earlier this year in Plumhoff v. Rickard, the Supreme Court held that once justified to shoot, officers may continue doing so “until the threat has ended.” Citing to that proposition, the Appeals Court took no issue with the number of shots fired, noting the absence of evidence that the officer continue shooting after he knew the suspect was incapacitated. The Appeals Court attributed the number of shots to the pre-entry decision to engage the automatic function of the gun. According to the court’s opinion: “If it is true that officers may fire ‘15 shots’ in a ‘10-second span’ when the suspect is not even shooting at the officers, as Plumhoff allowed, id., it must be true that officers may return fire with an automatic weapon when they are being fired upon.”
  • The Court of Appeals was similarly unimpressed with the argument that officers should have waited out the suspect, finding the ten hours they had waited to be sufficient. According to the Court:

“The assumption that waiting carried no risks of its own is belied by the reality that, so far as they knew, Krause could have emerged at any point and acted on this threat to ‘come out shooting’ or could have taken his own life during the delay. That is why continuing to wait was not, as the claimant suggests, a risk-free option. The officers reasonably waited until Krause fell asleep and opted to act then. No doubt, the plan did not end well, leaving us with the seen consequences of the officers’ actions (the regrettable death of a child and brother) and the unseen possibilities of what might have been (perhaps no death at all). Yet when the Supreme Court warns lower courts not to judge the reasonableness of an officer’s action from the peace and safety of their chambers “with the 20/20 vision of hindsight,” Graham, 490 U.S. at 396, this is what they mean.”

This decision is not binding in the Ninth Circuit. I am uncertain the Ninth Circuit would have reached the same conclusions. For example, in Sheehan v. City & Cnty. of S.F., the Ninth Circuit partially reversed the grant of summary judgment to officers who shot a mentally ill individual that attacked them with a knife. When the officers initially entered her room to conduct a welfare check, plaintiff grabbed a knife and threatened to kill them. After retreating and calling for backup, the officers reentered the room out of concern for their own safety and the possibility that the individual might escape and injure others. The court found that a jury issue existed as to the second entry, citing testimony from plaintiff’s police practices expert that they should have instead “elected to … relocate to a safer tactical position, call for special units/equipment, and determine the propriety of seeking a warrant.” While factually distinguishable from the situation addressed by the Sixth Circuit, the Sheehan opinion appears to align more closely with the concerns raised by Judge Marbley in his concurring opinion.

A petition has been filed with the Supreme Court seeking review of the Sheehan decision. A response to that petition is due on October 14, 2014. I will be following the case to see if the petition is granted. It too early to tell if further review will be sought in Krause. I would not be surprised to see it also being considered by the Supreme Court for review.

Don’t Touch That Baggie!

Patrol officers bring in an individual arrested for felony drug possession. While processing him for housing, jail deputies run into a problem when the time comes for the visual cavity search. The subject complies with directions to strip, but when instructed to bend, spread and cough, he instead moves his hand toward his right buttock in an apparent attempt to push an item inward. After a struggle, deputies lean the inmate against the wall, bracing his body in such a manner that he ends up being bent over. At that point they see what appears to be a plastic bag partially protruding from subject’s rectum. What do they do now?

Call for a warrant says the Ninth Circuit, because simply removing the bag violates the Fourth Amendment. The opinion can be accessed here.

Trail Trouble!

According to the Rails-to-Trails Conservancy, nationwide over 20,000 miles of former railroad lines have been converted to trails under the Rails-to-Trails program. This program is partly premised on the assumption that railroad right of way originally granted by the federal government returned to government ownership upon abandonment. That assumption has been placed in question by today’s decision in Brandt v. United States, at least to the extent that the railroad obtained its right of way under the terms of the General Railroad Right-of-Way Act of 1875.

In 1908 the Laramie, Hahn’s Peak and Pacific Railroad (LHP&P) obtained 66 miles of right of way across federal land in Wyoming under the provisons of the 1875 Act. In 1976 the Brandt family purchased land from the government which was subject to some of this right of way. Later, a successor railroad sought permission to abandon the line using this right of way. By 2004 all the rails had been removed and abandonment completed. In 2006 the United States initiated an action to quiet title to the abandoned right of way in the United States, arguing that abandoned railroad right of way originally granted across federal land reverted to the government. The District Court found in favor of the government and the Tenth Circuit Court of Appeals affirmed. Today the Supreme Court reversed, finding that under the 1875 Act only granted the railroad an easement to use the property for railroad purpose which easement was extinguished once the railroad stopped using it for railroad purposes.

The exact impact of this decision on the rails to trails program is unclear. Justice Roberts pointed out in his majority opinion that prior to 1875 Congress granted rights of way to railroads under various land-grant statutes. The rights created under those statutes were not addressed by this decision and may or may not still revert to the United States. What is clear is that the legitimacy of trails built on right of way obtained under the 1875 Act are in question, unless rights to use the land for a trail were secured from the underlying land owner. The decision also raises questions for trails proposed for not yet abandoned right of way, as the Brandt decision suggests that right to use that easement, at least if obtained under the 1875 act, ends once the property is no longer used for railroad purposes.

Will that employment release land you in more trouble?

The Ohio Employer Law Blog reports that the EEOC has just filed suit against CVS Pharmacy claiming its standard severance agreement amounted to retaliation for exercise of protected employment rights.  This claim is based on the EEOC’s belief that the agreement potentially restricts employees from filing charges or participating in employment related investigations.

From a review of the complaint it appears that the CVS agreement is similar in form to agreements often used in Oregon and Washington.  The one exception is the cooperation clause, which requires the employee to report any “subpoena, deposition notice, interview request, or other inquiry” they receive seeking information about CVS.  While this is only a lawsuit,  its filing suggests this to be an area of interest to the EEOC, and increased risk to employers. Employers will need to carefully weigh this risk in considering how broadly an employment release is drafted.

Thanks to Eric B. Meyer of the Employers Handbook Blog for bringing this to my attention.

Has the legislature preempted local laws on illegal drugs?

Marijuana? Likely yes! Meth? No. It all depends on if the drug qualifies as seed or the product of seed.

SB 863, passed to head off local regulation of genetically modified agricultural products, expressly prohibits local governments from enacting or enforcing:

“. . . any local laws or measures for regulating the display, distribution, growing, harvesting, labeling, marketing, mixing, notification of use, planting, possession, processing, registration, storage, transportation or use of agricultural seed, flower seed, nursery seed or vegetable seed or products of agricultural seed, flower seed, nursery seed or vegetable seed.”

Marijuana and cocaine both appear to fall within this prohibition as they are grown from seed or are plant derived.  Meth on the other hand is purely the product of chemistry, so is unprotected.  Talk about unintended consequences!

The bill is accessible here!

Two Title VII Wins for Employers

Today the U.S. Supreme Court issued opinions in University of Texas Southwestern Medical Center v. Nassar and Vance v. Ball State University.  Both decisions are employer wins.

University of Texas addressed the causation standard a plaintiff must meet to prevail on a Title VII retaliation claim.  In that case the Fifth Circuit had held that plaintiff was entitled to prevail as he established at trial that retaliation as a motivating factor in an adverse employment action.  The Supreme Court rejected that standard, instead holding that plaintiff must show that retaliation was the but-for cause of the challenged employment action.

In Vance the court limited the class of employees considered supervisors for the purpose of imposing strict liability on an employer for coworker harassment.  Vance held that to be a supervisor the harasser must have the authority to take tangible employment actions against the victim.  The court went on to identify hiring, firing, failure to promote, reassignment with significantly different responsibilities, or significant changes in benefits as the type of employment actions considered “tangible” for the purpose of this definition.

The Ninth Circuit has adopted a less rigorous causation standard for retaliation cases than called for under University of Texas.  That will now change.  From a quick check of Ninth Circuit cases the impact of Vance was unclear.

Oregon Supreme Court upholds two year statute of limitations for survival and wrongful death actions against public bodies

The Oregon Tort Claims Act establishes a two year statute of limitations for tort actions against public bodies.  This limitation applies notwithstanding any other provision of Oregon law “providing a limitation on the commencement of an action”.  ORS 30.275(9).

In Baker v. City of Lakeside, the Oregon Supreme Court held this statue did not preempt ORS 12.020(2), which allows a timely filed lawsuit to be served up to 60 days after the statute of limitations has run.  The court reasoned that ORS 30.279(9) only preempted statutes that provide a limitation on the commencement of an action, which ORS 12.020(2) did not.

Bell v. Tri-Met, is a survival action that was brought two weeks too late to comply with ORS 30.275(9).  Citing Baker, plaintiff argued the three year survival action statute of limitation should instead apply.  ORS 30.175.  According to plaintiff, that statute was not a limitation on the commencement of an action as it merely tolled the limitation period for one year following death.  The Supreme Court rejected that argument, holding ORS 30.175 to establish a three year limitation period for survival actions which was subject to preemption under ORS 30.279(9).  As the suit was filed after the two year limitation period established by that statute, it was untimely.

Note:  Wrongful death actions are also covered under ORS 30.175 so this decision should equally apply to them.

Regulation of the disposal of towed vehicles is not preempted by federal law.

Tow trucks are motor carriers for the purpose of 49 U.S.C. §14501(c), which preempts state or local regulation of motor carriers transporting property.  That law provides various exceptions permitting the regulation of safety, insurance coverage, price for nonconsensual tows, or requirements for property owner presence when the tow occurs. Not addressed in this scheme is the authority to regulate the disposal of towed vehicles.  The Supreme Court has now ruled that such regulation is not preempted under federal law.  In doing so the court limited the scope of preemption under 49 U.S.C. §14501(c) to the regulation of activities of the motor carrier while it has property in transit.  The court found that transportation ended in this case once the car was delivered to the impound yard.  Once that occurred the state was free to regulate the towing company’s activities, including how it disposed of the vehicle.

The case is Dan’s City Used Cars, Inc., v. Pelky and you can read the full opinion here.

U.S. Supreme Court turns thumbs down on blanket rule allowing warrantless DWI blood tests

I hated English class when I was in school.  Diagraming sentences and picking apart the meaning of books seemed like an exercise in missing the forest for the trees.  So I became a lawyer, where I pick apart people’s testimony and courts’ opinions. Go figure!

I’m reminded of this by this morning’s U.S. Supreme Court opinion in Missouri v. McNeilly, which rejected the argument that the natural dissipation of alcohol in the blood stream always creates the type of exigent circumstances that justify a warrantless blood test of a suspected drunk driver.  It’s another one of those Supreme Court decisions with multiple concurrences that requires you to diagram which justices agreed with which parts to fully understand the opinion.

To save you the trouble, a majority of the justices agreed in Missouri v. McNeilly that the dissipation of alcohol in the bloodstream could create exigent circumstances; it just didn’t in this case.  They also dropped a broad hint on how to show exigency in future DWI cases:

“[T]he fact that a particular drunk-driving stop is ‘routine’ in the sense that it does not involve ‘special facts,’ such as the need for the police to attend to a car accident, does not mean a warrant is required. Other factors present in an ordinary traffic stop, such as the procedures in place for obtaining a warrant or the availability of a magistrate judge, may affect whether the police can obtain a warrant in an expeditious way and therefore may establish an exigency that permits a warrantless search. The relevant factors in determining whether a warrantless search is reasonable, including the practical problems of obtaining a warrant within a timeframe that still preserves the opportunity to obtain reliable evidence, will no doubt vary depending upon the circumstances in the case.”

Oregon Supreme Court Maps Path to Avoid Open Ended Statutory Contracts

Over the last several years the State of Oregon and its local governments have been faced with serious challenges to their ability to rein in the spiraling costs of employee benefits.  The most prominent of these is the current PERS mess.  This problem has its genesis in well-intentioned legislative actions taken years ago to provide public employees medical and retirement benefits.  As the cost of these benefit programs spiraled out of control, attempts to rein them in have been met with arguments that the statute or ordinance providing the benefit was a contract enforceable by the employees.  Typically the employees won this argument.

James v. Clackamas County contains all the above elements.  In the mid-80’s Clackamas County adopted an ordinance to provide health care benefits to retired sheriff’s office command officers during the gap between retirement and Medicare eligibility.  The key difference? A wise County Counsel anticipated this promise may become too expensive to keep.  The solution? The ordinance created a fund to pay the benefits which received a fixed percentage of command officers’ compensation.  It also made the payment of benefits contingent on an adequate balance in the fund.

Fast-forward 20 years.  The increase in healthcare costs quickly outpaces the fund’s ability to pay.  Despite various stopgap efforts by the County, by March 2005 the fund balance was insufficient to pay that month’s premiums.  In response, the County abolished the fund, creating a new one that provided more limited benefits.

James, a retired command officer, sued claiming breach of contract.  The trial court agreed with James, but the Oregon Court of Appeals reversed.  The Oregon Supreme Court accepted James’ petition for review, setting up today’s decision. In it Justice Balmer applies basic rules of contract construction to resolve the dispute. According to the court:

“. . .  the 1985 contract created a fund to provide insurance benefits to certain retirees and that it expressly made the obligation to pay the 1985 level of benefits contingent on the availability of ‘sufficient funding in said fund’ to provide those benefits. The source of that ‘funding,’ according to the contract, was the county’s payment into the fund of one percent of compensation paid to current command officers, increased to three percent by the 1989 county board order. By March 2005, the Command Officers Fund did not have sufficient funds to pay the next month’s insurance premium under the 1985 contract. Because the funding in the Command Officers Fund was not sufficient to provide the 1985 level of benefits, the county was not contractually obligated to provide those benefits. Accordingly, the county’s failure to provide that level of benefits was not a breach of its contract.”

Note: Counsel representing governmental entities should review their clients’ legislative enactments for promises of this nature and consider having them amended to provide for a similar limit on benefits not yet vested.

Disclosure: The author represented the Clackamas County at trial, and assisted with briefing before the Court of Appeals. Susan Marmaduke, of Harrang Long Gary Rudnick P.C., represented the county in the successful appeal, both before the Court of Appeals and in the Supreme Court.  Hats off to Susan!  Hats off also to Dave Anderson, who advised the County on the fund transition and took an active role in this litigation.