Qualified Immunity
Qualified immunity is a type of immunity used to shield government officials from liability for actions taken in the line of duty, so long as the actions did not violate rights clearly defined by established law. It is a defense available to public officials, both state and federal, including law enforcement officers. Qualified immunity was created by the Supreme Court to focus trials on the objective reasonableness of the contested action of public officials, rather than the subjective intent of that official at the time of the action.
One of the goals of qualified immunity is to protect government officials, including law enforcement agents, from frivolous lawsuits stemming from necessary actions performed as part of their work. It allows these officials to execute their duties without the fear of being sued by individuals who may suffer harm as a result.
The key to the qualified immunity defense is whether the contested action was reasonable. In other words, the court must decide if a reasonable person would have known that their actions violated a clearly established law. Because qualified immunity removes the burden of determining the subjective state of the government official, the prosecution no longer must prove malice on the part of the defendant.
The Supreme Court’s Support of Qualified Immunity
Since the establishment of qualified immunity as a defense, the Supreme Court has been supportive of its use by police officers to defend actions taken in dangerous and intense situations. The court has also recognized the right of public officials to immediate appeal when a trial court judge issues a denial of their qualified immunity defense. An immediate appeal spares the defendant from the burden and expense of protracted discovery and trial.
There are numerous examples of rulings by the court that favor law enforcement. In the 1986 decision Malley v. Briggs, the court wrote that qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law”.
A year later, in Anderson v. Creighton, the Supreme Court ruled in favor of a federal law enforcement officer who thought he had probable cause to conduct a search without a warrant, but was mistaken, and used qualified immunity as his defense when he was sued for damages under the Fourth Amendment. Here, the court said that it had already recognized that it is inevitable that law enforcement officers will reasonably and mistakenly conclude that probable cause is present when making searches, and that officers should not be held personally liable for them.
The court has also affirmed use of the qualified immunity in multiple cases concerning the use of deadly force by police officers; thus making it clear that defendants whose attorneys have the knowledge and experience to make use of the qualified immunity defense, where applicable, will have a distinct advantage.
For information on how our governmental entity representation and civil rights defense practice can help you, call MacMain Leinhauser at 484-318-7106 or contact us online. With our office in West Chester, Pennsylvania, our attorneys serve clients throughout Chester County and Philadelphia.
The Future of Non-Compete Agreements
Shortly before the close of 2017, the Pennsylvania legislature introduced a bill that would ban non-compete agreements in employment contracts. Under Bill 1938, known as the “Freedom to Work Act,” non-compete agreements would be not only unenforceable, but null and void.
The bill has several stated goals, including lowering the unemployment rate, enabling an increase in income for highly-skilled employees, allowing employees to make a living wage and provide for their families by “maximizing their talents,” and allowing businesses to hire workers of their choice. With this bill the Commonwealth hopes to attract high-tech companies and discourage workers from leaving the state for better opportunities.
Additionally, the bill intends to promote the following:
- Increased wages and benefits
- Unrestricted trade and mobility of workers
- Innovation and entrepreneurship
Pennsylvania joins a trend of proposed legislation to limit non-compete agreements that includes New Jersey, Maryland, New York, Massachusetts, Missouri, and New Hampshire among others. In California, North Dakota, and Oklahoma, legislation has already passed that bans almost all forms of non-compete agreements.
Definition of Non-Compete
The Freedom to Work Act defines a non-compete agreement broadly as “[a]n agreement between an employer and employee that is designed to impede the ability of the employee to seek employment with another employer.” As there is no mention of non-solicitation agreements, it seems it would still be possible for an employer to enter into such an agreement with employees.
Exceptions are made for agreements deemed reasonable that concern the sale of a business, and those that involve the dissolution of a partnership or limited liability company. Any non-compete agreements that existed before the effective date of the new law would also be exempt.
Provision for Attorney’s Fees
Included in the proposed legislation is a provision that cases concerning Pennsylvania residents shall be decided in Pennsylvania state court, under Pennsylvania law. There is also a provision that awards attorney’s fees and damages, including punitive damages, to employees who sue their employer over a non-compete agreement and win. This essentially provides employees with incentive to sue, should the bill be enacted, and they find themselves subject to a non-compete clause.
Changes at the Federal Level
There is also proposed legislation at the federal level that seeks to reform the misuse of non-compete agreements. Employers must watch carefully for any changes in state and federal legislation, and are advised to be prepared to use other ways to protect proprietary information. Non-compete agreement forms should be reviewed regularly, to ensure they comply with the law in all jurisdictions where they are in use.
MacMain Leinhauser is well versed in the complexities of Pennsylvania employment law and can provide you with highly skilled representation. Call 484-318-7106 or contact us online to schedule a consultation with one of our experienced attorneys. From our office in West Chester, our experienced attorneys serve clients throughout Chester County and Philadelphia.
The Pros and Cons of Recording Police Activity
With the political climate more charged than ever, and an extreme divide between those who support or oppose police officers and question their conduct, one of the things that has been suggested to help improve this dissonance is to equip all police officers with body cameras.
There are both advantages and disadvantages to this technology.
Advantages of Police Body Cameras
The following are examples of the advantages to police forces and citizens provided by the use of body cameras:
A Clearer Picture of What Has Occurred
Body cameras help to create a clearer picture of what transpired. It is much easier to demonstrate what occurred when there is footage of it – even if it is not perfect.
Whereas police reports require the imagination of the jury, video footage can be less subjective.
Improved Behavior
From a young age, we tend to behave better when we know that we are being watched. The use of a body camera not only influences citizens who know that they are being watched to behave well, but also influences the officers wearing them, as they know that their conduct will also be captured.
These videos additionally allow for officers to analyze their interactions and use that information to improve where necessary.
They Do Not Get in the Way
Weighing less than a quarter of a pound, wearing body cameras is not too intrusive for police officers that are used to already wearing a lot of bulky equipment. The smallest of these cameras is about the size of a lipstick and can be placed in a variety of locations on the officer.
They Help to Reduce Complaints
Many departments who have already implemented body cameras are reporting positive results from them. There seems to be a reduction in complaints and a decrease in force.
With less disputes, this saves the department a lot of time and resources necessary to resolve any civil litigation.
Disadvantages of Police Body Cameras
The following are examples of the disadvantages to police forces and citizens provided by using body cameras:
Upfront Costs of the Cameras
With $399 – $599 price points per unit, a lot of law enforcement agencies are unable to afford these body camera systems. This is especially true for those departments that are already under tight budgets.
Concerns with Privacy
These body cameras raise the issue of our expectation of privacy, especially when dealing with some extremely sensitive situations. To keep such issues clear, police departments will need to work with advocacy groups, including the American Civil Liberties Union (ACLU) to develop policies that ensure the public’s rights that are protected under the Fourth Amendment.
A Method for Storing Evidence
The chain of custody for evidence has always been important, to ensure that nothing has been changed or tampered with in any way. Adding video may require another investment into how to properly store these recordings. It may be difficult to prove the chain of custody in court.
Difficulty with Adjusting to New Changes
Change is never easy, but for those who have been on the job for many years, it may become very difficult for officers to change how they conduct their performance. It is likely that the implementation of such body cameras will be met with a certain level of resistance.
Body cameras are not the only recording technology being employed to add accountability. In addition to cameras in the police cars themselves, new audio and video technology attached to police weapons is being developed and deployed, to explore situations involving the use of deadly force.
If you represent a police officer who has been involved in any type of dispute, it is important to fight for the justice that they deserve. At MacMain Leinhauser we have experience in representing, counseling, and defending public officials and law enforcement in the Philadelphia, West Chester, and Chester County areas, and can help you as well. For more information, contact a civil rights defense attorney at MacMain Leinhauser by calling 484-318-7106 or submit an online inquiry.
Church Security Awareness Month
October is Church Safety and Security Month, a great time to make sure that your church or other religious institution is adequately protected.
Churches used to stay open around the clock. But the violent events of recent history have changed that tradition. Now, churches must be safeguarded against shooters, robbers, and other criminals.
Here are some tips for keeping your church safe during October and throughout the year.
Church Security Measures
The first step in keeping your congregation safe is to conduct a church security assessment, to identify potential threats, and develop plans of action. Be sure to know your local neighborhood, so you can identify potential issues.
Here are some things to consider when developing a security plan:
Church access: If there are many entrances to the church, consider having only one open during business hours, and securing the additional entrances with heavy doors, locks, and security windows.
Implementing a procedure for giving out and collecting keys to the church may be helpful in preventing former staff or members from having easy access to the church and any valuables inside.
Also, be sure to lock up valuables such as microphones, televisions, and computer equipment, to protect against theft.
Dangerous property conditions: If your church is having repairs or remodeling done, be sure that the proper warning signs are posted, and that work is completed in a reasonable amount of time.
Churches must expediently address known hazards and keep the premises reasonably safe for churchgoers and staff. If someone is injured on your property due to your negligence, they may file a premises liability lawsuit, which may subject you to responsibility for their injuries.
Armed security: Many churches do not want to have armed security on the premises. However, it may be wise to consider nowadays. There were 346 mass shootings in the United States in 2017 alone, according to the not-for-profit organization Gun Violence Archive.
According to the Department of Homeland Security (DHS), 95 percent of active shooters do not stop shooting until someone who is armed arrives. Uniformed, off-duty police officers, or others with training in law enforcement or the military, are often good choices when it comes to armed security guards.
Screening employees/volunteers: Churches are often at the center of allegations of abuse. It is important to develop a thorough screening process for all potential workers or volunteers.
Conduct background and reference checks on anyone who will be working with children, and implement a waiting period for new members. Also, have a policy in place that requires two unrelated adults to be present with children at all times. That way, children are never left alone with one staff member or volunteer.
Emergency preparedness: It is crucial to have emergency plans of action, in the event that your church is the target of a violent crime. Church members should be informed that there are security measures in place. Further, they should be advised on what to do if there is a crisis.
DHS recommends forming a collaborative planning team to address safety risks, determine goals and objectives, and implement and maintain emergency operations plans.
For more information on how to keep your church secure, contact The MacMain Leinhauser by filling out an online inquiry or calling us at 484-318-7106. From our office in West Chester, our experienced attorneys serve clients throughout Chester County and Philadelphia.