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 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.
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.
Sexual Harassment Tool
The National Academies of Science, Engineering and Medicine (NASEM) recently completed a two-year study on sexual harassment. Although its focus was primarily on the influence of sexual harassment in academia, and its impact on the advancement of women’s careers in the scientific, technical and medical workforces, NASEM’s findings are relevant to many other types of workforces as well.
NASEM gives several recommendations to reduce sexual harassment in the workplace, including one tool that employers are not likely to implement, due to its legal and public interest ramifications.
The Climate Survey: Effective but Underutilized
According to NASEM, the climate survey is promising in terms of its ability to reduce sexual harassment. Implementing the climate survey tool would require employers to regularly survey employees about what types of inappropriate behavior they have witnessed at work. By gaining a clear understanding of the existing climate, and routinely following up with workers, employers can track the effectiveness of their efforts to reduce sexual harassment over time.
Climate surveys would alert employers to existing harassment problems, or ones that could potentially arise in the future. Because most victims of sexual harassment do not report it, reliance upon formal complaints is not sufficient to determine the extent of harassment present in an organization. Climate surveys would also provide employers with valuable information regarding the types of harassment occurring in their organizations, even if there have been no formal complaints filed.
Climate Survey Employer Concerns
In light of the recent “MeToo” movement, many companies are eager to reduce workplace sexual harassment. However, although traditional training programs have proven to be largely ineffective, the climate survey may not be the solution they are looking for.
While it may be effective in terms of reducing workplace sexual harassment, many employers are deterred from utilizing climate surveys because of the potentially damaging public relations and legal implications.
Climate surveys that indicate high levels of harassment may prove harmful to an organization’s reputation if they are publicized. Therefore, many organizations will be hesitant to utilize the tool. Organizations could also open themselves up to liability if they are aware of existing sexual harassment issues, but do not stop them.
Employers must exercise reasonable care to prevent and correct sexual harassment in the workplace. If their training methods are not effective, as indicated by client surveys, they may be held legally liable for any persisting harassing behavior.
Federal and State Sexual Harassment Laws
Employees are protected from workplace sexual harassment by both federal and state laws, including Title VII of the Civil Rights Act and the Pennsylvania Human Relations Act.
The Equal Employment Opportunity Commission (EEOC) is responsible for the enforcement of federal laws pertaining to workplace harassment. They have the authority to investigate charges of discrimination against employers with more than 15 employees.
The Pennsylvania Human Relations Commission (PHRC) is responsible for enforcing state civil rights laws and applies to employers with four or more employees.
Employers may be held liable for all forms of sexual harassment under federal and state law. It is therefore important to seek qualified legal assistance in both the prevention and investigation of workplace sexual harassment.
For more information about how to reduce sexual harassment in your workplace, or for assistance with your sexual harassment claim, contact an experienced employment attorney at MacMain Leinhauser. Call us at 484-318-7106 or submit an online inquiry form.
Influenza Season Hits U.S. Prisons
The United States experienced a particularly bad flu season in 2017-2018. Virulent strains of influenza killed many people across the nation. Though not nearly as deadly as the 1918 killer flu pandemic, it leads to a comparison with the swine flu epidemic of 2009.
For years, the recommendation from the Centers for Disease Control and Prevention (CDC) regarding flu vaccinations was that the elderly and anyone suffering from chronic conditions be inoculated. These two groups were viewed as more susceptible.
However, in 2010, the Advisory committee on Immunization Practices at the CDC changed their guidelines. Following that change, they now recommend providing annual flu vaccinations for everyone over the age of six months.
These changes were a direct result of the H1N1 swine flu pandemic that affected many people between the ages of 19 and 49 almost ten years ago.
Prison Populations and CDC Guidelines
Because of overcrowded conditions, a population consisting of inmates mostly in the 19-49 age range, and the lack of good medical care, the nation’s prisons are a fertile ground for a potential flu outbreak. Although the CDC guidelines were changed in 2010, the vast majority of state Departments of Corrections and local jails have ignored the advisory and have not implemented flu vaccinations for the general prison population.
Prison administrators would be well advised to update their policies and procedures to meet the new standard of care. It is much more cost effective to administer the flu vaccine to prisoners, when compared to the cost of emergency room visits and stays in the intensive care unit. Overtime staff, prescriptions, and other medications must also be paid for. According to experts, to prevent a prison flu outbreak, vaccinations must be provided for 70 to 80 percent of the population. This must include administrative staff as well as guards.
Flu Fatalities in Prisons
The 2017-2018 flu season saw many fatalities from influenza or complications of the flu. This included the death of a woman in Oregon at the Coffee Creek Correctional Facility, where only 18 percent of the prison’s population received flu vaccinations. Further, 43 prisoners at Coffee Creek contracted the flu. Afterwards, some alleged that they were never properly notified that the vaccine was available to them.
In Texas at the Montgomery County Jail, vaccines are offered, but not mandatory. Two prisoners there died during the 2017-2018 flu season. In Kentucky, at the Henderson County Detention Center, a prisoner who fell ill with the flu infected 14 other people. The prisoner had to be transferred from the state prison to the jail, in the process exposing guards, staff, and the other prisoners.
As yet, the prison population has avoided a total epidemic of influenza, but administrators should be aware that failure to follow CDC guidelines, which were set forth eight years ago, puts not only their detainees, but also administrators, guards, visitors and the surrounding community at risk.
Body Cameras in Police Officer Cases
Video from body cameras can be a useful tool in exonerating police officers when they are falsely accused of misconduct. The footage of the incident in question can provide an eyewitness account of exactly what happened. For this and many other reasons, use of body cameras is becoming the norm for police departments that can afford to acquire the equipment.
Positive Effects of Body Cameras
Police departments that are already using body cameras have a number of positive effects to report. First among these is a reduction in the numbers of complaints filed against police officers, and also the number of use-of-force incidents. Both police and citizens tend to curb their behavior and remain calm and levelheaded when body cameras are in use. Officers know they will be held accountable, and civilians on camera are less combative. More control on both sides reduces the risk of escalation and accidents.
According to the International Association of Chiefs of Police, an estimated 96 percent of police officers accused of misconduct are exonerated when body cameras were in use. In situations that come down to two different versions of an incident, video from body cameras can be the best source of evidence. The public often has a chance to view an event from cell phone camera footage that circulates on social media, and video from the police officer’s point of view can serve to balance the narrative.
The cameras also foster the public’s trust in law enforcement, when they see that officers are using technology that promotes transparency. They can be a first step in healing the divide between the police and the communities they are responsible for protecting.
Footage from real encounters captured from body cameras can be an invaluable tool for teaching and training new officers. While traditional training videos are scripted and acted out, real-life videos filmed on the job can help prepare new recruits for situations they may encounter.
In some cases, evidence from body cameras has helped victims of domestic abuse who are often afraid to file complaints against their abusers after an initial 911 call for help. Video recording of the response to the domestic violence call makes it harder to dismiss such cases.
Drawbacks of Body Cameras
While video can be invaluable in supporting an officer’s testimony in court, it can just as easily provide compelling proof of police misconduct, and can be used to discipline, fire, and even prosecute officers. Privacy is also an issue – the public will want to know how videos will be collected and stored, as well as how they are used and who gets to see them.
Officers may have their own concerns about being “on camera” all day, and what their privacy rights are. Law enforcement should consult experienced counsel when establishing department policy on the use of body worn cameras.
The Science of Good Policing
There is much controversy surrounding different police tactics used across the United States and their effectiveness, particularly stop-and-frisk. A new report published by the National Academy of Sciences, Medicine and Engineering looks at proactive policing methods and evaluates the pros and cons of each.
What is Proactive Policing?
Proactive policing refers to the use of proactive response methods to reduce crime and is different from a proactive decision made by police officers in specific situations. Before the implementation of proactive policing, police departments typically operated by reacting to crimes after they occurred. In the 1980s and 1990s, emphasis shifted to the police taking more initiative to prevent crime and target its underlying causes.
The lead author of the report, a criminologist at George Mason University, worked with a panel of 15 experts that included lawyers, statisticians, other criminologists and former police chiefs. The current president of the Police Foundation, and a co-author of the report, expressed optimism that police departments would be open to using the results of their analysis of research on popular proactive policing strategies.
Results of Proactive Policing
The report aimed to assess not only the impact of proactive policing strategies on crime, but the reaction of the communities where the strategies are implemented. The authors of the report stressed that little long-term evidence is available for analysis, and that more research is needed to understand the long-term effects of proactive policing.
Several proactive policing strategies were found to have an overall positive effect, including the following:
- Hot spots policing, or the practice of focusing police efforts on the locations that have the most crime. Researchers found that in addition to having a short-term crime-reduction effect, areas nearby improved as well. This strategy rarely produces a negative community outcome.
- Focused deterrence includes strategies that blend law enforcement, community mobilization and social service actions to respond to crime-producing dynamics that encourage repeat offences. The impact of such strategies was shown to be consistent in reducing gang violence, street crime driven by gang markets, and repeat individual offending.
- Broken windows policing is used to prevent the forces of disorder from overwhelming a neighborhood. It can also help residents of afflicted neighborhoods take back their communities. When broken windows policing is implemented through neighborhood-based, problem-oriented practices such as improving lighting and cleaning up parks, it produces consistent short-term reduction in crime.
- Community-oriented policing seeks to involve the citizenry in identifying the problems in their communities and how to address them. While studies did not show a consistent crime-prevention impact for community-oriented strategies, they led to improvements in community satisfaction, and in the public’s view of policing and the police.
- Stop-and-frisk strategies show consistent reductions in short-term crime when used in specific locations known to have serious gun crimes and high-risk repeat offenders. When stop-and-frisk is applied as a general city-wide measure, evidence of its impact on crime reduction is mixed. Regardless of its effectiveness, studies show that there is a negative association for communities and individuals who have experienced stop-and-frisk.
The research panel hopes the results of the analysis will be used by police departments across the U.S. to choose evidence-based strategies that can serve their communities best. Proactive policing can be both effective on crime reduction and supported by the citizens served by the police.
Empowering Student Voices
School security has become a national hot topic in the wake of the largest school shooting incident in U.S. history that took place in Parkland, Florida on February 14. Students are some of the most vocal advocates for change concerning gun violence and school security; and rightly so, since they should expect to be able to learn in a safe environment. Civic engagement should be encouraged as long as it is carried out within guidelines from the school administration with the promise to ensure the safety of all students.
While all students have a First Amendment right to free speech, that right does not permit them to cause substantial disruption to the school environment or infringe upon the rights of other students. Additionally, threatening, lewd, or profane speech, and speech promoting illegal drug use have not been recognized in court as protected by the First Amendment for students within the school environment. When preserving the discipline and safety of students is at stake, the courts have acknowledged that it may be necessary to regulate speech outside of the school environment.
It is imperative that school leaders maintain open lines of communication with students and parents about how best to let student voices be heard. A common solution may be found for alternatives to walkouts or other protests that may disrupt the school environment and put students at risk. These may include planned student assemblies, allowing student clubs to become engaged in public policy issues, writing to elected leaders, and using the school newspaper as an outlet.
Staff members’ First Amendment rights are well defined by the U.S. Supreme Court. In Pickering v. Board of Education, the Court issued as a guideline the following three questions that can be used to determine if a staff member’s speech falls under the protection of the First Amendment:
- Was the statement regarding something of general public concern?
- Was the speech that of a private citizen or in the course of duty?
- Was the statement likely to disrupt a close working relationship, i.e. one with other staff, parents or students?
These guidelines make it clear that staff members do not have First Amendment protections when expressing personal, political, or religious views, or when airing grievances with their colleagues or superiors while in the classroom. This includes concerns over school security and safety. Outside the school, they may express their views as long as they remain within the above parameters. School leaders should remind staff that while they should lead and encourage students to carry out respectful dialogue on issues they feel passionately about, staff must refrain from conveying their own personal political views.
To assist school leaders in planning and preparation for student activism, the New Jersey Department of Education (NJDOE) has issued a document providing guidance to all school districts regarding student protests and demonstrations. Included in the document is a review of the Memorandum of Agreement between education and law enforcement officials as well as topics such as how to identify and secure an appropriate place for student gatherings and how to use social media to help discern what plans are being made in your school. Educators may also want to refer to the guide “Resources on Managing School Walkouts-Protests,” issued by the National Association of Secondary School Principals.
The Education and School Law Practice at MacMain Leinhauser is comprised of experienced attorneys who are dedicated to helping educators and school administrators handle the most complex legal matters. To learn more about the services we provide, call 484-318-7106 or contact us online.
Act 22 and Police Recordings
Governor Wolf has said he believes that body cameras help prevent confrontations, preserve evidence, and strengthen police accountability. Last summer, the Governor signed into law a new Act that provided for a federal grant to fund a Pennsylvania State Police pilot program of body-worn cameras. Act 22 governs police body camera recordings with regards to the Pennsylvania Right to Know Law (RTKL). Part of Act 22 deals also with other types of recordings, such as those made in correctional facilities, but of particular significance is a section that broadens the scope of recordings now considered exempt from disclosure in RTKL requests.
Requests for Police Audio and Visual Recordings
The new legislation stipulates that requests for law enforcement audio or visual recordings must be made in writing within 60 days from the date the recording was made. The date, time, and location of the recorded incident must be specified along with the relationship of the requester to the incident that is the subject of the recording. Within reason, the request must also name everyone who was present at the time of the recording if the incident occurred inside a residence unless they are not known to the requester.
Under Act 22, if an audio or visual recording contains either potential evidence in a criminal matter, or information that pertains to an investigation or matter where criminal charges have been filed, it is now exempt from RTKL requests. However, agencies are still required to review recordings to assess whether protected information can be redacted. In cases where this is possible, then the agency must provide a redacted version of the recording to the party who requested it. A denial of a request for recordings must be written and state “that reasonable redaction of the audio recording will not safeguard potential evidence, information pertaining to an investigation, confidential information or victim information.”
Act 22 also provides for a new procedure to appeal the denial of a request. Appeals of denials must be submitted to the court of common pleas that has jurisdiction. The recording in question must be preserved by the agency that issues the denial until the expiration of the time period of judicial review. Law enforcement agencies have the right to establish reasonable fees to cover the cost of providing audio and visual recordings. The party that requests the recording must pay the fee when the recording is disclosed.
Pennsylvania municipalities and their law enforcement agencies should be sure they are aware of the new protocols outlined in Act 22 so that they are in compliance with any RTKL recording requests.
How to Be an Ally At Work
More than half of LGBTQ people have experienced discrimination in the workplace. Repercussions can include being denied health insurance, being overlooked for a promotion due to bias, or being fired based on gender identity. Discrimination denies these workers financial and emotional security and robs companies of the benefits of diversity. A diverse workplace is the key to having a balanced and successful place of employment.
MAC Cosmetics and Refinery 29 teamed up to host a series on LGBTQ lifestyle called Trans 102. They interviewed a group of transgender people with varying backgrounds to find out the common misconceptions and troubles that often arise in their community. The intent of this session was to help identify ways to improve and maintain workplace security for LGBTQ members.
It was determined that it is essential for LGBTQ employees to have benefactors advocating for them within a workplace. Some may consider themselves a minority within the workplace, so it is important to make their voices heard. Companies should have a clear and unbiased hiring policy in place. They should also offer equal health benefits to LGBTQ employees. Employers should promise fair compensation and grant equal rights to promotions.
The interviewed transgender people also stated that coworkers being open and amicable went a long way toward making them feel welcome. It is important to find common ground and stop to have small talk with LGBTQ employees who might feel out of place. Start with small talk around the water cooler. Be genuine and take a real interest in their responses. Foster the relationship to broaden the playing fields and keep all employees active, involved, and engaged in the workplace. This will help quell any feelings that can arise with insecurity. A true leader will find ways with simple conversation to instill security and satisfaction within their team.
It is prudent to have a lawyer review all HR policies to minimize company exposure to litigation matters. An attorney can train supervisors and management on how to properly handle sensitive issues and thus reduce liability exposure from disgruntled employees. Employment litigation defense lawyers represent public, private, and municipal employers in state or federal court. They can challenge unemployment compensation boards, the Division of Civil Rights, the Equal Employment Opportunity Commission, or Human Relations commissions regarding any employment lawsuits or claims. Employment law attorneys are essential for intervening when it comes to allegations of defamation, civil rights violations, or other wrongful discharge claims in court.
Ethics Codes for Police
Most police officers enter the force highly motivated and enthusiastic with a true desire to serve the public. Working in a position of authority presents opportunities for ethical compromise. Dr. Kevin Gilmartin is a behavioral scientist who spent 20 years in law enforcement in Tucson, Arizona. Together with John J. Harris, he explains what they call “the Continuum of Compromise” to show how and why a person who starts as an idealistic “honest cop” becomes a self-serving, ethically compromised officer.
The process is subtle and can occur without conscious acknowledgement on the part of the officer. Gilmartin advises that it is crucial for officers to understand the continuum of compromise, which includes:
- Recognizing that the risk for compromise exists (some officers will view themselves as not at risk, and are therefore mentally unprepared to face ethical dilemmas)
- Assessing the personal potential for compromise
- Developing self-monitoring strategies to avoid becoming entangled in compromising events
Just as mental preparation is as crucial as tactical preparation for real life lethal situations, the authors stress that mental preparation is vital to making good choices when faced with an ethical conflict. Both kinds of situations occur without warning and with little time to stop and think. In that instant, an honest but unprepared officer can make an unethical decision that will have life-changing consequences. Officers who are mentally prepared for ethical dilemmas have a much better chance of navigating them successfully.
The study found that the officers at greatest risk are the ones who over-identify and over-invest in their profession. Their sense of self is completely linked to their life as a police officer. This creates problems because as officers there is little they have control over in their lives, save their own integrity and professionalism. Seemingly every aspect of policing is dictated by a chief, commander, prosecuting attorneys, the courts, and the criminal justice system. It provides the beginning of an “us versus them” mentality.
Another factor that changes the perspective of an over-invested officer is the hypervigilance required by the physical risks that police are exposed to every day. When the only other people to be trusted are “real cops,” i.e. not those sitting at desks in the administration, then the officer has started to alienate themselves from their own department and those who exercise control over their job. Instead of trust, resentment and a perceived sense of victimization grow. This is a crucial turning point because feeling like a victim is the first stop on the continuum of compromise for the unsuspecting officer.
There are three further steps:
Acts of Omission – Feeling victimized, an officer feels justified not doing duties they are responsible for such as omitting paperwork
Acts of Commission – Administrative – Breaking small rules that risk only departmental sanctions. Carrying unauthorized weapons, not reporting accidents.
Acts of Commission – Criminal – The final step on the continuum of compromise. These acts appear harmless to the officer – theft of assets seized from a drug dealer for example, but if caught, the officer risks being fired and criminally prosecuted.
Fortunately, this progression is both predictable and preventable. Ethically sound officers are those who accept the fact that they do not control their police role, but have total control over their own integrity and professionalism.