Legal

Consent to Search When There Are Co-occupants of a Residence

The Supreme Court has long held that police officers may search a jointly occupied residence if one of the occupant’s consents.  United States v. Matlock, 415 U.S. 164 (1974).  In 2006 the Court recognized a narrow exception to this rule, holding that consent of one occupant is insufficient when another occupant is present and objects to the search.  Georgia v. Randolph, 547 U.S. 103 (2006).  On February 25, 2014 the Court clarified Randolph by ruling that the police can search a home without a warrant, even if one co-tenant objects, as long as, the objecting co-tenant is no longer on the scene and another co-tenant gives consent. Fernandez v. California, 571 U.S. 292 (2014).

In Fernandez, police officers responding to a call about a violent robbery observed Fernandez run into an apartment building and heard screams coming from the apartment.  Officers knocked on the apartment door, which was answered by a woman who appeared to be battered and bleeding.  The suspect then came to the door and objected to the officers entering the apartment.  The officers removed the suspect from the apartment, arrested him, and took him to the police station on suspicion he had assaulted the female. An officer returned to the apartment an hour later and, after obtaining the female’s oral and written consent, searched the premises where he found several items linking Fernandez to the robbery.

Fernandez’s attorney, citing Georgia v. Randolph, attempted to have the items found in the apartment suppressed from evidence, arguing that Fernandez had objected to the search of the apartment before he was taken into custody. The Court refused to suppress the evidence and stated that Randolph was strictly limited to situations when the objecting co-tenant is physically present. The only case in the 10th Circuit that has addressed this issue is the United States District Court for the District of New Mexico.  of the New Mexico Court has adhered to the strict limitation of Randolph and found that consent to search will not be invalidated by a defendant’s objections if the defendant is either (1) not present while consent was given, or (2) has been lawfully removed. United States v. Montoya, 2016 U.S. Dist. LEXIS 152828 (D.N.M., Nov. 2, 2016).

The lawful tenant of a residence has the right to invite law enforcement to enter and conduct a search.  In fact, the Court explained that if a lawful tenant wants to invite police inside her house, police shouldn't have to first get permission from a magistrate before accepting the invitation. Requiring officers to obtain a warrant when a warrantless search is justified may interfere with law enforcement strategies and impose an unmerited burden on the person willing to consent to an immediate search.

A third party may consent to a search of property if that third party has either (1) mutual use of the property by virtue of joint access, or (2) control for most purposes over it. United States v. Guillen, 2018 U.S. Dist. LEXIS 75832 (D.N.M., Sept. 8, 2017). When a third-party consents to a search, officers must inquire into the relationship between the defendant and the consenter to determine whether the third party has apparent authority to consent and whether that relationship is the type where it could be presumed that the consenter has control over the property. Unless facts demonstrate that the defendant and the third party had some sort of agreement—leading to an expectation of privacy in his room—the third party’s authority to consent is presumed. And when a third-party consents to a search, and the defendant fails to object to the search, the court will treat the failure to object as a “good” indicator that consent existed.

The court in Guillen denied a defendant’s motion to suppress evidence that was seized from a child’s room after the father had consented to the search. After entering the home and questioning the child, who was a suspect in a criminal investigation, the child’s father returned home, and upon his arrival officers asked for his consent to search the home. Although the child was a very private person and had a previous agreement with his father that he could not enter his room without his permission, the court found that police officers did not violate the child’s expectation of privacy because it was reasonable for them to believe that his father had apparent authority to consent to the search and were unaware of any agreements made between the child and his father.

To sum it up, the Court’s opinion focuses on the physical presence of the objecting co-tenant.  If the objecting co-tenant is physically present and objects to a search, then the police cannot search the residence.  If the objecting co-tenant has been lawfully removed from the scene then the police may search if there is consent from a co-tenant. 

          

“Fernandez v. California— Consent Required for a Warrantless Search” was written by Suzanne D. Paulson, OMAG Associate Counsel and updated by Alan Taylor, legal intern. You may contact the author at spaulson@omag.org. The information in this Risk Alert is intended solely for general informational purposes and should not be construed as or used as a substitute for legal advice or legal opinions with respect to specific situations, since such advice requires an evaluation of precise factual circumstances by an attorney.

                                                                                                                                                      

                                                                                                                                                                                                                    March 2014 (updated 7/2018)

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Managing Jail Liability

This Loss Bulletin is intended to help municipalities, and their law enforcement officers and jailers reduce their risk of civil liability in connection with the maintenance and operation of their jails.  Understanding the current case law and acting accordingly should significantly decrease the risk to cities and towns, police officers, supervisors, and jailers from lawsuits filed by prisoners and their families.  This bulletin covers the general duty imposed on prison officials; a prisoner’s right to care for serious medical needs; the duty to prevent suicides; the duty to protect inmates from others; liability arising out of the use of other jail facilities; and the obligation to pay for medical expenses of prisoners. The liability discussed herein is for civil rights violations pursuant to 42 United States Code §1983 unless noted otherwise.  The cases reported are applicable to municipalities in Oklahoma.

Introduction:

Local governing bodies can be sued directly only where “the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers.” Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658, 690 (1978). "[I]t is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Id. at 694.

In order to state a claim for municipal liability under § 1983 for the actions of a municipal employee, a party must allege sufficient facts to demonstrate that it is plausible (1) that the municipal employee committed a constitutional violation; and (2) that a municipal policy or custom was the moving force behind the constitutional deprivation. Jiron v. City of Lakewood, 392 F.3d 410, 419 (10th Cir. 2004). The plaintiff must further show that “the policy was enacted or maintained with deliberate indifference to an almost inevitable constitutional injury.” Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 769 (10th Cir. 2013).

To satisfy the deliberate indifference standard, a plaintiff must provide “proof that a municipal actor disregarded a known or obvious consequence of his action.” Bd. of the Cnty. Comm’rs v. Brown, 520 U.S. 397, 410 (1997). The city policymakers must also have actual or constructive notice of the particular issue or action. Connick v. Thompson, 563 U.S. 51, 61 (2011). A municipal policy or custom can take the form of:

(1) a formal regulation or policy statement;

(2) an informal custom amoun[ting] to a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law;

(3) the decisions of employees with final policymaking authority;

(4) the ratification by such final policymakers of the decisions — and the basis for them — of subordinates to whom authority was delegated subject to these policymakers' review and approval; or

(5) the failure to adequately train or supervise employees, so long as that failure results from 'deliberate indifference' to the injuries that may be caused.”

Bryson v. City of Oklahoma City, 627 F.3d 784, 788 (10th Cir. 2010).

Duty Imposed on Prison Officials

The Tenth Circuit provides an in-depth discussion of the general duty imposed on prison officials in Tafoya v. Salazar, 516 F.3d 912 (10th Cir. 2008).  Tafoya was an inmate who was sexually assaulted by a male officer while performing her work duties on multiple occasions. The County Jail where the assault occurred had a history of officers sexually assaulting female inmates, and three years before the action, two officers had even been convicted and imprisoned for the offenses. Before Tafoya’s assault, in response to other officer’s convictions, the County Sheriff had taken “some steps to remedy the risk to female inmates of sexual assault.” Id. at 915. These steps included firing the jail administrator, installing additional surveillance cameras, the hiring of additional female staff, and the implementation of sexual harassment training.  Id.

In Tafoya, the issue before the Tenth Circuit was “whether, notwithstanding these steps, Sheriff Salazar's alleged failure to implement and enforce other policies to protect female inmates amounted to deliberate indifference.” Id. at 915-16. The Tenth Circuit held that prison officials have a duty “to provide humane conditions of confinement, including adequate food, clothing, shelter, sanitation, medical care, and reasonable safety from serious bodily harm.” Id. at 916. Explaining that not every injury suffered by an inmate gives rise to a breach of duty, the court identified a two-step inquiry for determining the breach of this duty by a prison official. Id.

First, “the alleged injury or deprivation must be sufficiently serious.” As to this prong, in this instance, judged on an objective standard, the Tenth Circuit found that a sexual assault easily satisfied this requirement. Id. Second, the official must have a “sufficiently culpable state of mind.”

Next, elaborating on the second prong, the court applied the “deliberate indifference” standard to determine the culpability of a prison officials mental state, the satisfaction of which required “the official knows of and disregards an excessive risk to inmate health or safety.” Id. In contrast to the first prong, this determination is a subjective standard which requires first that “the official actually be ‘aware of facts from which the inference could be drawn that a substantial risk of serious harm exists. . . .’”

The court further explained that knowledge of this risk need not be particular to a certain inmate, nor a particular way in which injury might occur, and although a subjective standard, “a jury is permitted to infer that a prison official had actual knowledge . . . based solely on circumstantial evidence, such as the obviousness of the condition.” Id. at 916-17. Nonetheless, there can be no “deliberate indifference” without the official’s awareness of the risk. Id. at 916. Upon a finding of awareness of potential harm, the deliberate inference standard requires second the failure “to take reasonable steps to alleviate that risk” for liability to attach. Id.

Explaining that a prison official may still be liable for harm suffered by inmates despite “efforts reasonably calculated to reduce the risk, if he intentionally refuses other reasonable alternatives and the dangerous conditions persist” the court found the sheriff’s failure to enforce the new polices he had implemented, and the “anything-goes” culture among the detention officers rose to the level of deliberate indifference. Id. at 917-19. Due to these findings, the court denied the prison officials motion for summary judgment. Id. at 922.

Prisoners’ Right to Care for Serious Medical Needs

The standard of care owed a prisoner, which the Tenth Circuit applied in Tafoya (discussed above) was established in 1976 by the United States Supreme Court in Estelle v. Gamble, 429 U.S. 97 (1976). Gamble was an inmate who claimed he had hurt his back while unloading a truck.  Id. at 99. He complained that he was unable to get adequate medical care from the prison officials despite repeated requests.  Id. Gamble sued the prison officials because they had subjected him to cruel and unusual punishment in violation of his civil rights under 42 U.S.C. §1983. Id.

The Supreme Court agreed with Gamble and held the government has a fundamental obligation to provide medical care to prisoners in its custody. Id. at 103. The Court explained, “an inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met.” Id. at 104. The Supreme Court explained that prisons are required to provide medical care to incarcerated prisoners because they are unable to take care of themselves as a result of the state’s deprivation of their liberty. Id. The Court further held that “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain. . . .” Id.

The denial of medical care which results in the infliction of unnecessary suffering is inconsistent with contemporary standards of one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.’” Ramos v. Lamm, 639 F.2d 559, 575 (1980).  While this case dealt with an inmate in prison, the legal principle would likewise apply to a municipal prisoner or pretrial detainee. Estelle, 429 U.S. at 560.

It is important to note that while establishing the standard of care owed to a prisoner in Gamble, the Supreme Court explicitly identified the standard of care owed to prisoners is the same for prison guards and prison doctors alike. Id. 104-05. Thus, a doctor’s indifference to prisoners’ needs is treated the same as a guard who delays, denies, or interferes with a prisoner’s medical care. Id. Nonetheless, the Court also took pains to explain that not ever claim of inadequate medical treatment by a prisoner states a violation of the Eighth Amendment. Id. at 105. In other words, a simple medical malpractice claim does not rise to the level of an Eight Amendment violation on its own; the prisoner must allege an act or omission “sufficiently harmful to evidence deliberate indifference to serious medical needs.” Id. at 106. In any case, for situations involving either malpractice or deliberate indifference rising to a constitutional violation, civil liability may lie.   

Suicide: Duty to Protect Prisoner

It is difficult to grasp the concept that a municipality may be liable for an individual’s act of suicide.  After all, no municipality has an official policy endorsing or aiding prisoners in their attempts to end their lives.  However, juries and courts have often shown sympathy toward the decedent’s families in these cases.  These families have convinced courts that municipalities should be liable for the suicide, not because of any affirmative action but for lack of action.

In Garcia v. Salt Lake County, 768 F.2d 303 (10th Cir. 1985), the widow and parents of Ronnie Garcia were awarded $147,000 for his negligent death while he was an arrestee. Id. at 305, 311. Garcia was arrested for driving under the influence of alcohol after he had been involved in a traffic accident.  Id. at 305. He complained of back pains and was transported to a hospital.  Id. In his possession were three bottles of medication which had been prescribed for him after he had been released from surgery two days earlier. Id. At the hospital, Garcia was lucid, talkative and oriented. Id. He refused to be examined. Id. Garcia was left alone in the examining room and apparently ingested an overdose of barbiturate, one of the prescribed medicines. Id.

He was found by the police passed out on the pavement outside the hospital.  A doctor examined him and determined that he was semi-conscious. Id. The doctor had no knowledge that Garcia had ingested drugs. Id. Garcia had a strong odor of alcohol on his breath. Id. The doctor asked the officers if Garcia could be medically observed at the jail. After being told he could, the doctor approved his transfer to the jail. Id. The jail medic directed that Garcia be placed in a holding cell and be checked every 15 to 20 minutes. Id. at 306. Approximately four hours later he was still unconscious. Id. About two hours later he was found nearly dead.  Garcia was taken to a hospital and twelve days later was diagnosed as brain dead.  Id.

At trial, a medical expert said that Garcia would have survived the alcohol and ingested drugs if he had been taken to the hospital to be stabilized. Id. Another physician testified that the county failed to afford reasonable medical care to Garcia due to his condition. Id. The county sheriff testified that it was the county’s policy to jail unconscious individuals suspected of being intoxicated.  Id. This was corroborated by the jail physician and medic. Id.

Despite this testimonial evidence about the policy, the Salt Lake County Jail had adopted the following written policy statement regarding prisoners:

Prisoners who are injured, unconscious, or otherwise in need of immediate care, or diagnosis will be transported to the hospital by the arresting officer before the prisoner will be accepted for booking.

Id. The Salt Lake County Sheriff’s Office had the following written policy regarding semiconscious or unconscious prisoners:

(1) Deputies will not deliver to the County Jail any prisoner who is unconscious or semiconscious and has to be carried into the jail.

(2) All arrested persons in the above stated condition shall be taken directly to the hospital for emergency treatment or medical treatment or medical diagnosis before being booked.

Id. The Court stated that deliberate indifference to serious medical needs may be shown by proving there are such gross deficiencies in staffing, facilities, equipment, or procedures that the inmate is effectively denied access to adequate medical care.  Id. at 307-08. The Court concluded that the jury’s finding was supported by sufficient evidence of gross deficiencies and deliberate indifference to persons admitted to jail in an unconscious condition who were suspected of being intoxicated. Id. at 308.  It was this level of indifference, the Court held, that caused the violation of Garcia’s constitutional rights. Id.

However, in another case, where the Court held that jail staff had no reason to suspect that a pre-trial detainee, who was intoxicated or under the influence of drugs, posed a risk of suicide, as is required to support a claim of deliberate indifference to detainee’s serious medical needs. Estate of Hocker by Hocker v. Walsh, 22 F.3rd 995 (10th Cir. 1994). Hocker committed suicide by hanging herself while detained in the Cleveland County detention center in Norman, Oklahoma.  Id. at 997. She had been arrested for trespass, public intoxication and possession of controlled dangerous substances. Id. at 996.

At the time of Hocker’s arrest she walked to the patrol unit on her own power, carried on a conversation with a passenger, and walked into the book-in without need of assistance.  Id. The book-in sheet described her as not violent or self-destructive, and apparently not on medication. Id. She was placed in a receiving section that was monitored until she was sufficiently sober to be placed with the general population. Id. at 997.

The next day Hocker was processed to be arraigned before the municipal court, although she spent most of the day asleep and remained somewhat incoherent or “still intoxicated” according to jail records. Id. On the following day, she visited with her attorney at the detention center.  An hour and a half later she was discovered in her cell hanging from the upper bunk with a towel around her neck. Id.

The Tenth Circuit found there were no facts which suggested that the detention center staff had knowledge of the specific risk that Hocker would commit suicide. Id. at 999-1000. Nor did the facts suggest that Hocker’s risk of suicide was so substantial or pervasive that knowledge could be inferred. Id. Though the staff obviously knew that she was intoxicated or under the influence of drugs, the Court ruled that intoxication with its accompanying incoherence did not, by itself, give the staff knowledge that Hocker posed a specific risk of suicide. Id.

Duty to Protect Prisoners From Each Other

The issue of whether cities and towns are required under federal law to protect prisoners from each other was addressed in Berry v. City of Muskogee, 900 F.2d 1489 (10th Cir. 1990). Id. at 1497. Mark Berry was arrested for burglary of a National Guard Armory.  Id. After his arrest, he informed on his partners in crime who were later arrested. Id. They were held together in the same jail facility awaiting sentencing.  Id. About a month later Berry was murdered by his former partners. Id.

In this jail facility prisoners were allowed twenty-four-hour access to each other.  There was no jail policy which inquired whether a prisoner had implicated other prisoners in a crime or was a police informant. A jail expert for the family of Berry testified that this lack of policy was a contributing factor leading to Berry’s death because it was “extremely reckless” and an “extremely serious departure from accepted standards and procedures.”

Berry’s wife testified at trial that (1) her husband expressed fear for his safety, (2) she informed an unidentified jail employee of her husband’s fears, and (3) she asked the jail employee if there was any way Berry could be moved out of the cell because the guys he informed on were going to be put in there with him.  No preventative action was taken.

The Court held that to establish the City’s deliberate indifference to Berry’s safety under the facts, it must be shown that:

(1) the City had actual knowledge of the specific risk of harm or that the risk was so substantial or pervasive that knowledge could be inferred,

(2) the City failed to take reasonable measures to avert harm, and

(3) the City’s failure to take such measures in light of its knowledge, actual or inferred, justifies liability for the attendant consequences of its conduct, even though unintended. 

The Court stated that the City cannot absolutely guarantee the safety of its prisoners, but it has a constitutional duty to take reasonable steps to protect a prisoner’s safety and bodily integrity.

In a rather bizarre case, the United States Supreme Court examined the issue of whether a public official could be held liable for the transsexual rape of a prisoner by another prisoner. Farmer v. Brennan, 511 U.S. 825 (1994).  Farmer was a preoperative transsexual who projected feminine characteristics but was placed in the general male population.  He was subsequently beaten and raped by another inmate.  Farmer alleged in his claim against the prison officials that they were “deliberately indifferent” to his need for safety.

The Court stated that “the Constitution does not mandate comfortable prisons, but neither does it permit inhumane ones.”  It explained in the opinion that the Constitution imposes duties on prison officials to “take reasonable measures to guarantee the safety of inmates and to protect prisoners from violence at the hands of other prisoners.”  Prison conditions may be “restrictive and even harsh but gratuitously allowing the beating or rape of one prisoner by another serves no legitimate penological objective” the Court held.  Although this case involved a prison, the legal principles would likewise apply to a municipal jail and its police and detention officers.

Use of Other Jail Facilities

It is commonly assumed by police officers that their liability for a prisoner’s well-being stops when the prisoner is booked into another law enforcement agency’s jail.  Unfortunately, such is not always the case.  If the law enforcement agency that receives a prisoner from your municipality has not formally agreed to be solely responsible for the prisoner’s well-being and medical needs, your municipality may still be liable for its proportion of the prisoner’s damages if a jury finds your municipality acted negligently.

Thus, it is advisable in situations where prisoners are frequently arrested by one law enforcement department and booked into the jail of another department, that both departments have a formal agreement stating when it is that a prisoner is considered to be in the care, custody, and control of the jail.  Without such an agreement, questions may arise which can significantly affect liability. For example, is a municipal prisoner in a county jail under the control of the municipality until the prisoner is booked or until the prisoner is arraigned?  These types of questions should be resolved in a written agreement between the departments.

Police departments should consider executing a hold harmless agreement with any other department which accepts their prisoners.  This agreement should contain a provision whereby the receiving department indemnifies the transporting department from any injury or loss that may occur to a prisoner while incarcerated.  Likewise, the receiving department should be indemnified by the transporting department for any injuries caused by the transporting department before the prisoner’s incarceration.  A draft copy of a hold harmless agreement is available from OMAG.

Of course, regardless of how a prisoner may have come into your municipality’s custody if the prisoner shows signs of or is complaining of injury or illness, the recommended procedure is to have the prisoner examined by a qualified healthcare provider.  Both the arresting department and the jailing department should document the medical condition of every prisoner they take into custody.  When a prisoner is booked into a jail, the transporting department should always give the receiving department any information it has about a prisoner’s medical condition or disabilities. 

For example, the arresting officer may be aware that the prisoner has taken certain drugs or that the prisoner has an arm or shoulder problem which prevents him from being handcuffed behind his back.  If the prisoner is subsequently injured or develops medical complications in the jail due to the lack of this information, the transporting department may be liable for failure to make the appropriate disclosure about the prisoner’s condition.

For a further discussion of this and related issues see Oklahoma Law Enforcement Operations Bulletin, volume 2, number 5, entitled “Legal Issues Concerning Transporting and Holding Arrestees and Prisoners,” which is currently available from OMAG.

Medical Expenses

Determining responsibility for payment of medical expenses for persons in police custody is sometimes fraught with contradiction.  State law provides that a municipality is responsible only for medical care required by its act or omission.  However, civil rights case law holds that municipality responsible for seeing that the person in custody receives medical care.  Oklahoma statutes address when a municipality is liable for the payment of its prisoner’s medical expenses.  Oklahoma Statutes title 11, §14-113, provides that:

“When a defendant is in the custody of a municipal jail, the custodial municipality shall only be liable for the cost of medical care for conditions that are not preexisting prior to arrest and that arise due to acts or omissions of the municipality.  Preexisting conditions are defined as those illnesses beginning or injuries sustained before a person is in the peaceable custody of the municipality’s officer.

An inmate receiving medical care for a preexisting condition or a condition not caused by the acts or omissions of the municipality shall be liable for payment of the cost of care, including but not limited to, medication, medical treatment, and transportation costs, for or relating to the condition requiring treatment.

Therefore, under state statute a municipality would not be liable for the medical expenses associated with the treatment of a prisoner who required medical care for a heart problem if it can be proven that the heart problem existed before the prisoner was arrested or incarcerated.  In this case any obligation for the payment of medical expenses should rest with the prisoner.

On the other hand, injuries arising out of the acts or omissions of a municipality while a prisoner is in its custody would impose liability upon the municipality for the payment of the prisoner’s medical expenses. So, for example, if a prisoner slipped in the shower and was injured due to an unreasonably slick floor, the municipality would be responsible for the medical expenses associated with the treatment of the injury.

Notwithstanding the state statutes, it is essential that law enforcement departments provide prompt medical attention to any prisoner when a medical need arises.  As previously discussed, failure to do so may result in a civil rights violation under 42 U.S.C. §1983.  It should also be noted that in an unreported decision in the United States District Court for the Western District of Oklahoma, the court found that a statute identical to §14-113 (except that it applied to counties, Okla. Stat. 19, §746) was unconstitutional as it was applied to the pretrial detainee plaintiff.  Rivera v. Board of County Com’rs of Comanche County, case no. CIV-93-266-W (W.D. Okla. 8/11/93).

Plaintiff Rivera was an indigent pretrial detainee in the county jail and while in the jail was found to have a form of cancer.  The county agreed to transport Rivera to receive chemotherapy, but refused to pay for the treatment.  The county argued that under 746 Rivera had a preexisting medical condition and therefore the county was not responsible for payment of Rivera’s chemotherapy. 

The court found that the county’s application of §746 to Rivera was unconstitutional because it effectively prevented him from receiving needed medical services.  The court stated that “[d]efendants may not refuse the provision of needed medical services [based] upon plaintiff’s ability or inability to pay.” Id. at 6.

In a recent Oklahoma Supreme Court case a sheriff argued that the county was not responsible for a prisoner’s medical bills since the injuries occurred while the prisoner was at large.  The prisoner was injured when he jumped from a third-story window in his attempt to escape from the jail.  Upon recapture, the prisoner was treated for his injuries and returned to the jail.  The Court held that the county’s responsibility arose when the prisoner was apprehended.    

It stated the statute imposes a duty to provide medical care to any county prisoner in need of medical care, regardless of how the need arises.  State ex rel. Dept. of Human Services v. Board of County Com’rs of McClain County, 829 P.2d (Okla. 1994).  See also State ex re. Dept. of Human Services v. Board of County Com’rs of Oklahoma County, 831 P.2d 1006 (Okla. 1991) (County liable to DHS regardless of whether inmate was indigent or whether DHS attempted to collect medical expenses from inmate). Although these cases involved county sheriff’s departments, based on the court’s reasoning it is very likely that the decision would be the same if a municipality was the defendant.

Conclusion

It is imperative that municipal officials and police departments understand the legal duties which are imposed upon them because they use or operate jail facilities.  If your police department has been “deliberately indifferent” to the medical needs of a prisoner and injury results, then the municipality, public officials or police officers may be liable for damages under 42 U.S.C. §1983.

Adequate medical care includes monitoring a prisoner when s/he exhibits suicidal behavior.  This requires that all law enforcement officers who handle a prisoner share information about the suicidal behavior or the medical condition of the prisoner. A written medical inventory or screening form should be kept for each prisoner taken into custody.

A prisoner has the right to protection from other prisoners when the officers operating the jail are aware of the imminent danger of injury to the prisoner. Under §1983 your city or town, or its officials may be liable for a prisoner’s damages if they are deliberately indifferent to a situation where it is likely that the prisoner will be harmed by other prisoners.

Liability for a prisoner does not automatically stop when the prisoner is released to the custody of the jail.  A written agreement between your department and the receiving department or agency should clearly set forth the responsibilities of each party for the care and custody of a prisoner.

Under certain conditions municipalities are required by state statute to pay for the medical expenses of prisoners who are detained in their jails.  However, even if a municipality is not required to pay for medical expenses by statute, failure to provide needed medical treatment to a prisoner, may subject a municipality to liability under §1983.

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Why is a $1,000,000 Per Occurrence Policy Limit Enough?

Why does OMAG have a $1,000,000 per occurrence Policy Limit when there is no limit to civil rights liability under 42 U.S.C. §1983?

OMAG is not a commercial insurance carrier. OMAG was created by the execution of an interlocal agreement, making OMAG an extension of its member municipalities. The purpose of OMAG, as authorized expressly in the Governmental Tort Claims Act, 51 O.S. §167(C), is to allow municipalities to pool their self-insured risk with one another. Id. see also City of Choctaw v. OMAG, 2013 OK 6, 302 P.3d 1164 and Bd. of Cty. Commissioners v. ACCO-SIG, 2014 OK 87, 339 P.3d 866. The extent of the municipal exposure in tort on any given incident is $25,000 per claim property damage, $125,000 (except for the largest municipalities, all of which retain all self-insured risk) for all other claims, and a total cap of $1,000,000 for any combination of claims. 51 O.S. §154.

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Obviously civil rights liability under 42 U.S.C. §1983 is not subject to the limits of the GTCA. That said, under §1983, the civil rights claim must be brought against the “person” who, while acting under color of law, violated a clearly established constitutional right. The US Supreme Court, in Monell, v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978) held that a local government could be considered a “person” under §1983 but only to the extent that the Plaintiff could show that the entity caused the violation of the Plaintiff’s rights. This is what is commonly referred to as the policy, practice or custom requirement and requires a showing that the entity caused the loss by some policy, practice or custom it has adopted that caused the employee to cause the deprivation of a Constitutional right. This is an incredibly high bar to clear, especially considering the dialogue to come. But, in short, it is very difficult to successfully sue a governmental entity for civil rights violations.

The real exposure in §1983 is for the individual public employee who allegedly acts under color of law to violate a clearly established constitutional right. Unlike the entity in a Monell claim, the employee enjoys the protections of qualified immunity. Unlike the entity, however, an employee is liable for their actions if those actions violated a clearly established right (Monell would attach only after the showing of a violation if, and only if, the Plaintiff could also show that the employee acted per the direction of a policy, practice or custom). Why is this the City/Town's problem if the City/Town is not a named party?

Under the GTCA, the City/Town is obligated to defend and indemnify its employee(s) in §1983 claims so long as the employee was acting within the scope of their duties under the GTCA. 51 O.S. §162. The key provision that answers the question is found in §162(A)(2) which states that the indemnification obligation is limited to the GTCA tort cap limits in §154 – i.e. to $1,000,000.

Simply put, the City/Town is obligated to defend its employees (subject to their being in the scope of employment) in §1983 claims regardless of the cost. The City/Town is obligated to indemnify its employees in §1983 claims (subject to scope of employment) up to the tort cap of $1,000,000. OMAG fully insures this liability exposure by (1) fully defending the City and employees in all claims without the defense costs eroding the limits of our liability and (2) fully insuring the City for the GTCA per-claim caps and total aggregate cap and (3) fully insuring the City and employees up to the total liability exposure that the City is legally obligated to cover of $1,000,000. OMAG tailors its limits to the taxpayer legal liabilities – nothing more, nothing less. Many commercial carriers offer higher limits and, in doing so, expose the taxpayer to higher premiums to cover a liability risk that they are not subject to. They literally are insuring a risk that does not legally exist.

 


This Loss Bulletin was written by Matt Love, Deputy General Counsel and Claims Director.  You may contact the author at (405) 657-1400.  The information in this bulletin is intended solely for general informational purposes and should not be construed as or used as a substitute for legal advice or legal opinion with respect to specific situations, since such advice requires an evaluation of precise factual circumstances by an attorney.

 

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Americans with Disabilities Act Amendments Act - Expanding Employee Protections and Employer Obligations

As the ADAAA does not apply retroactively, and will therefore only apply to denials of reasonable accommodation where a request was made (or an earlier request was renewed) or to other alleged discriminatory acts that occurred on or after January 1, 2009. Situations in which an employer, union, or employment agency allegedly failed to hire, terminated, or denied a reasonable accommodation to someone with a disability on or before December 31, 2008 the original ADA definition of disability would be applied even if the person did not file with the EEOC until after January 1, 2009.

Introduction

President George W. Bush signed into law the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), which went into effect January 1, 2009. The changes in the definition of disability in the ADAAA apply to all titles of the ADA, including Title I (employment practices of private employers with 15 or more employees, state and local governments, employment agencies, labor unions, agents of the employer and joint management labor committees); Title II (programs and activities of state and local government entities); and Title III (private entities that are considered places of public accommodation). It also directed the U.S. Equal Employment Opportunity Commission (EEOC) to amend its ADA regulations to reflect the changes made by the ADAAA. The final regulations were published in the Federal Register on March 25, 2011

The ADAAA made a number of significant changes to the definition of “disability.” In enacting the ADAAA, Congress made it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the statute. Congress overturned several Supreme Court decisions that Congress believed had interpreted the definition of “disability” too narrowly, resulting in a denial of protection for many individuals with impairments such as cancer, diabetes, and epilepsy. The ADAAA states that the definition of disability should be interpreted in favor of broad coverage of individuals. As a result, many more medical conditions will qualify as either an actual disability or a perceived disability for purposes of the Americans with Disabilities Act (ADA).

ADAAA: Expanding Employee Protections and Employer Obligations

Expansion of Definition of Actual Disability

The ADAAA does not change the ADA’s three prong definition of disability: that a “disability” is a (1) “physical or mental impairment” that “substantially limits” the “major life activities” of the individual; (2) a record of an impairment; or (3) being “regarded as” having an impairment. However, the regulations implement the significant changes that Congress made regarding how those terms should be interpreted.

Prong 1: “Physical or Mental Impairment”

The definition of “impairment” in the new regulations is almost identical to the definition in EEOC’s original ADA regulations, except that the immune and circulatory systems have been added to the list of body systems that may be affected by an impairment, because these systems are specifically mentioned in the ADAAA’s examples of major bodily functions.

The regulations define “physical or mental impairment” as any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin and endocrine. They also cover any mental or psychological disorder, such as intellectual disability (formerly termed mental retardation), organic brain syndrome, emotional or mental illness, and specific learning disabilities.

Prong 1: “Substantially Limits”: Congress’s mandate that the definition of disability be construed broadly.

The ADAAA states that the primary focus in ADA cases should be on whether covered employers have complied with their obligations and that the determination of whether an individual’s impairment is a disability under the ADA “should not demand extensive analysis.”

Among other things, the ADAAA references the intent of Congress to reject recent Supreme Court decisions holding that an impairment “substantially limits” a major life activity only if an individual is “prevented or severely restricted in an activity that is of central importance to most people’s daily lives.” The ADAAA essentially tells the EEOC, which had defined “substantially limited” in its regulations to mean “significantly restricted,” to devise a more liberal definition.

The ADAAA also rejects another Supreme Court holding that mitigating measures an individual uses to counteract the effects of an impairment (for example, medication) must be taken into account in determining whether an impairment “substantially limits” a major life activity. Under the ADAAA, the only mitigating measures that may be taken into account in assessing whether an individual has a disability are ordinary eyeglasses and contact lenses. The ADAAA further provides that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity.

The regulations implement Congress’s intent to set forth predictable, consistent, and workable standards by adopting “rules of construction” to use when determining if an individual is substantially limited in performing a major life activity. These rules of construction are derived directly from the statute and legislative history and include the following:

·         The term “substantially limits” requires a lower degree of functional limitation than the standard previously applied by the courts. An impairment does not need to prevent or severely or significantly restrict a major life activity to be considered “substantially limiting.” Nonetheless, not every impairment will constitute a disability.

·         The term “substantially limits” is to be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA.

·         The determination of whether an impairment substantially limits a major life activity requires an individualized assessment, as was true prior to the ADAAA.

·         With one exception (“ordinary eyeglasses or contact lenses”), the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures, such as medication or hearing aids.

·         An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

·         In keeping with Congress’s direction that the primary focus of the ADA is on whether discrimination occurred, the determination of disability should not require extensive analysis.

Prong 1: “Major Life Activities”

Prior to the ADAAA, it was up to the courts to determine whether activities qualified as “major life activities,” using the regulations promulgated by the EEOC as guidance. The ADAAA removes much of the courts’ and the EEOC’s discretion by specifically designating a non-exhaustive list of examples of major life activities: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, blinking, communicating and working.

The ADAAA also designates the operation of “a major bodily function” as per se a major life activity and provides as examples: functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions. As a result of the ADAAA’s recognition of major bodily functions as major life activities, it will be easier to find that individuals with certain types of impairments have a disability.

Prong 2: “Record of an Impairment”

An individual who does not currently have a substantially limiting impairment but who had one in the past meets this definition of “disability.” An individual also can meet the “record of” definition of disability if she was once misclassified as having a substantially limiting impairment (e.g., someone erroneously deemed to have had a learning disability but who did not).

All of the changes to the first definition of disability discussed in the questions above – including the expanded list of major life activities, the lower threshold for finding a substantial limitation, the clarification that episodic impairments or those in remission may be disabilities, and the requirement to disregard the positive effects of mitigating measures – will apply to evaluating whether an individual meets the “record of” definition of disability.

Prong 3: Expansion of Definition of “Regarded As” Disability

Under the third prong of the definition of disability, individuals are protected from discrimination based on “being regarded as having such an impairment.” Since the only subject in the definition that the word “such” can be read to refer to is “a physical or mental impairment that substantially limits one or more … major life activities of such individual,” courts have generally construed this provision as protecting only individuals whose employers perceive them as having an impairment that is an actual ADA disability, i.e., one that substantially limits an employee in the performance of one or more major life activities. The ADAAA provides that a person will be “regarded as” disabled if the person establishes that he was subjected to discrimination because of an actual or perceived physical or mental impairment – regardless of whether the actual or perceived impairment in fact limits a major life activity. The only qualification on this broadened definition of “regarded as” disability is that impairments that are both “transitory (meaning an actual or expected duration of six months or less) and minor” will not qualify for “regarded as” protection. Not surprisingly, the ADAAA makes clear that employers need not provide a reasonable accommodation to individuals who do not actually have a disability, but are “regarded as” having one.

The ADAAA specifically states that those covered under only the third prong (“regarded as”) are not entitled to reasonable accommodation. Thus, an individual must be covered under the first prong (“actual disability”) or second prong (“record of disability”) in order to qualify for a reasonable accommodation. The regulations clarify that it is generally not necessary to proceed under the first or second prong if an individual is not challenging an employer’s failure to provide a reasonable accommodation.

Other Provisions

The ADAAA bars the use of qualification standards, employment tests, and other selection criteria based on an individual’s uncorrected vision unless the standard, test or other selection criteria is shown to be job-related for the position in question and consistent with business necessity. The ADAAA also makes clear that no claim can be brought for reverse discrimination under the ADA; i.e., an individual who does not have an ADA disability cannot state a claim based on preferential treatment afforded an individual who does have an ADA disability.

Conclusion: Impact of the ADAAA

So what does this mean for employers? As the ADA prohibits discrimination based on an individual’s disability, now more employees may qualify as disabled under the ADA and may request reasonable accommodations to perform their jobs. Particularly with respect to the amendments related to mitigating measures and episodic impairments, requests may come from employees who were never previously known to have impairments. Since these issues are likely to arise in your municipality, now is a good time to become familiar with the requirements of the ADA, including the interactive process and reasonable accommodations.

The information in this bulletin is intended solely for general informational purposes and should not be construed as or used as a substitute for legal advice or legal opinions with respect to specific situations since such advice requires an evaluation of precise factual circumstances by an attorney. OMAG does not represent or endorse any group, site or product that may be mentioned in this article. If you have questions, please contact Suzanne Paulson, OMAG General Counsel, at spaulson@omag.org or Matt Love, Associate General Counsel & Claims Director, at mlove@omag.org.

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Open Records Act and Open Meetings Act Amendments

Open Records:

The Open Records amendments to 51 O.S. § 24.A effective November 1, 2017 relates to inspection and reproductions of records which specify the requirement for permissible delay for certain requests. The amendments to this provision are found in 51 O.S. § 24.A (b)(6). There are two new provisions of this subsection to be aware of.

First, “A delay in providing access to records shall be limited solely to the time required for preparing the requested documents and the avoidance of excessive disruptions of the public body's essential functions.” This first addition specifies that delay of access to records shall be permissible in only two situations: (a) preparation time, and (b) if needed to avoid excessive disruption to the public body’s essential functions.

Second, “In no event may production of a current request for records be unreasonably delayed until after completion of a prior records request that will take substantially longer than the current request.” This second addition specifies a situation where delay is impermissible. The effect of the provision is that even where a public body has received a prior request, they may not delay access to a subsequent request, even where the prior request is substantially more cumbersome. While the statute prohibits only “unreasonable delay,” the prudent decision in this situation would be to begin gathering records upon the receipt of each request, and not to delay a subsequent request until the completion of a prior request.

Open Meetings:

The Open Meetings amendments to 25 O.S. § 311 also effective November 1, 2017 relates to public notice for public meetings by establishing provisions for certain notice on internet sites. While some of the changes to this section have only updated language, multiple portions of this provision have been renumbered due to substantial changes.

First, portions of the additional notice requirements of 25 O.S. § 311(A)(9), have been stricken. Under the old provision, public bodies only had one option for providing this notice (in addition to the requirements of 25 O.S. § 311(A)(1)). Under the modified provision public bodies now have two options for providing notice prior to regularly scheduled meetings, but the public body must choose at least one of the following methods:

a. by posting information that includes date, time, place and agenda for the meeting in prominent public view at the principal office of the public body or at the location of the meeting if no office exists, or

b. by posting on the public body's Internet website the date, time, place and agenda for the meeting in accordance with Section 3102 of Title 74 of the Oklahoma Statutes. Additionally, the public body shall offer and consistently maintain an email distribution system for distribution of such notice of a public meeting required by this subsection, and any person may request to be included without charge, and their request shall be accepted. The emailed notice of a public meeting required by this subsection shall include in the body of the email or as an attachment to the email the date, time, place and agenda for the meeting and it shall be sent no less than twenty-four (24) hours prior to the meeting. Additionally, the public body shall make the notice of a public meeting required by this subsection available to the public in the principal office of the public body or at the location of the meeting during normal business hours at least twenty-four (24) hours prior to the meeting.

Second, 25 O.S. § 311(A)(10) has been renumbered as 25 O.S. § 311(A)(11), but the text of the provision remains the same. The new 25 O.S. § 311(A)(10) elaborates in further detail the requirements under the new changes to 25 O.S. § 311(A)(9).

The twenty-four (24) hours required in paragraph 9 of this subsection shall exclude Saturdays, Sundays and holidays legally declared by the State of Oklahoma. The posting or distribution of a notice of a public meeting as described in paragraph 9 of this subsection shall not preclude a public body from considering at its regularly scheduled meeting any new business. “New business,” as used herein, shall mean any matter not known about or which could not have been reasonably foreseen prior to the time of the posting.

Two components of this sub-section under the new amendment are noteworthy. First, weekends and holidays declared by the state will not count towards the twenty-four-hour notice required under 25 O.S. § 311(A)(9). Second, the notice requirements of 25 O.S. § 311(A)(9) do not affect the public bodies ability from considering “new business” during its regularly scheduled meetings, and “new business” is defined as “any matter now known about or which could not have been reasonably foreseen prior to the time of the posting.

Third, the former provisions 25 O.S. § 311(A)(11)-(12) have been renumbered as 25 O.S. § 311(A)(12)-(13) respectively. Additionally, 25 O.S. § 311(A)(12) (formerly 25 O.S. § 311(A)(10)) now provides for an alternative to the public posting requirements found in the prior provision.

In lieu of the public posting requirements of this paragraph, a public body may elect to follow the requirements found in subparagraph b of paragraph 9 of this subsection, provided that forty-eight-hour notice is required for special meetings and that the forty-eight-hour requirement shall exclude Saturdays, Sundays and holidays legally declared by the State of Oklahoma.

The information in this bulletin is intended solely for general informational purposes and should not be construed as or used as a substitute for legal advice or legal opinions with respect to specific situations since such advice requires an evaluation of precise factual circumstances by an attorney. OMAG does not represent or endorse any group, site or product that may be mentioned in this article. If you have questions, please contact Suzanne Paulson, OMAG General Counsel, at spaulson@omag.org or Matt Love, Associate General Counsel & Claims Director, at mlove@omag.org.

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Body Worn Video and Records Retention


BODY WORN VIDEO AND RECORDS RETENTION
With the popularity and affordability of Body Worn Video (BWV) equipment, many OMAG members are purchasing devices for their police officers.  Members learn quickly that the expense of the equipment purchase doesn’t compare to the cost of storing the video or data. OMAG Legal receives regular inquiries regarding storage/retention requirements and issues when it comes to BWV. As a service to our members, OMAG’s Legal and Risk Management Departments have developed this article addressing the most frequently asked questions regarding BWV retention.  

As of this writing, there is no legal obligation to store body (or dash) camera videos for any length of time. As such, the decision to store or not store is left to the municipality subject to the requirements of State law. The municipality should consider adopting a retention policy that takes into account the legal factors outlined in the statutes discussed below. In particular, if there is video of a use of deadly force (whether it causes death or just injuries or even where no one is actually hurt), those videos should be preserved (OMAG recommendation) and should be sent to OMAG Legal for review. Videos depicting a use of force incident causing significant bodily injury should also be preserved (OMAG recommendation).  The Statute of Limitations for Civil Rights claims is 2 years and there is a 6 month grace period to serve a Civil Rights suit after it is filed. For video capturing incidents which may lead to a Civil Rights claim, a 3 year retention would be ideal and a best practice.

The following Statutes are implicated when determining whether BWV videos should be preserved.

OPEN RECORDS ACT
“In addition to other records which are kept or maintained, every public body and public official has a specific duty to keep and maintain complete records of the receipt and expenditure of any public funds reflecting all financial and business transactions relating thereto, except that such records may be disposed of as provided by law.” 51 O.S. 24A.5. “Except as may be required in Section 24A.4 of this title, this act does not impose any additional recordkeeping requirements on public bodies or public officials.” 51 O.S. §24A.18. So the Open Records Act applies to records already in existence but only requires that financial records be kept. And even financial records can be disposed of “as provided by law.” Law Enforcement records have a specific statute, Section 24A.8, which mirrors this general non-requirement “Nothing contained in this section imposes any new recordkeeping requirements. Law enforcement records shall be kept for as long as is now or may hereafter be specified by law. Absent a legal requirement for the keeping of a law enforcement record for a specific time period, law enforcement agencies shall maintain their records for so long as needed for administrative purposes.” 51 O.S. §24A.8(C); see also Oklahoma Assoc. of Broadcasters v. City of Norman, 2016 OK 119, ¶¶25-30 390 P.3d 689 (Sec. 24A.8 is part of the entire Act and any ambiguities regarding disclosure obligations will be resolved in favor of disclosure). The question is whether any other law would apply because the Act may not require retention but it does specifically limit that “this act” does not impose requirements thus opening the door for other Statutes.

RECORDS MANAGEMENT ACT
“"Local record" means a record of a county, city, town, village, township, district, authority or any public corporation or political entity whether organized and existing under charter or under general law unless the record is designated or treated as a state record under state law.” 67 O.S. §203(c). “The governing body of each county, city, town, village, township, district, authority or any public corporation or political entity whether organized and existing under charter or under general law shall promote the principles of efficient records management for local records. Such governing body shall, as far as practical, follow the program, established for the management of state records. The Administrator shall, insofar as possible, upon the request of a governing body provide advice on the establishment of a local records management program.” 67 O.S. §207

“[S]hall, as far as practical, follow the program, established for the management of state records.” The Attorney General has declined twice to say what “as far as practical” means. See 2001 OK AG 46, ¶27, 2002 OK AG 13, ¶8 (in both instances the Attorney General opines that this is beyond the scope of the his opinion authority under 74 O.S. §18b(A)(5)). There is no need to fret: the Act delegates the authority to draft records retention policies to each agency of the state. 67 O.S. §206. The guidance in drafting a policy from the administrator is “How long do I keep records? Each record has its own disposition/retention schedule, which indicates the minimum length of time the record should be kept. A record’s retention period is based on its administrative, fiscal, legal or historical value.” Link. The Act does state “Except as otherwise provided by law, no state record shall be destroyed or otherwise disposed of unless it is determined by the Archives and Records Commission that the record has no further administrative, legal, fiscal, research or historical value.” 67 O.S. §210. §206(A)(1) and (3) arguably create a Cost/Benefit Analysis approach to the adopting of policies on retention: “[Each Agency head shall] Establish and maintain an active, continuing program for the economical and efficient management of the records of the agency” and records can be submitted to destruction when the record is “not needed in the transaction of current business and that do not have sufficient administrative, legal or fiscal value to warrant their further keeping.”

OMAG recommends that each municipality adopt policies on retention that take into account whether the record is needed for current business transactions and, if not, whether the record has administrative, legal, fiscal, research and historical value of records and then provide for their retention based on those factors. 

UNIFORM ELECTRONIC TRANSACTIONS ACT
Two defined terms that are relevant to the discussion are “"Electronic record" means a record created, generated, sent, communicated, received, or stored by electronic means” and “"Governmental agency" means an executive, legislative, or judicial agency, department, board, commission, authority, institution, or instrumentality of the federal government or of a state or of a county, municipality, or other political subdivision of a state.” 12A O.S. §15-102(9) & (11). So the act is going to apply to cities and towns, but the Act is very deferential to government to decide its retention for itself: “Each governmental agency of this state, in cooperation with the Archives and Records Commission, shall determine whether, and the extent to which, it will create and retain electronic records and convert written records to electronic records.” 12A O.S. §15-117. The Commission that is referenced was originally created by 74 O.S. §564, but it’s since been moved to 67 O.S. §305. The statutes limit the jurisdiction of the Commission to the State and its Agencies and does not define State as including political subdivisions.

OMAG’s opinion is that this Act applies to  municipalities and would apply to body cam video, but imposes no affirmative requirements on retention.

BWV CATEGORIES
Police Officers utilizing BWV devices must adhere to a department policy that not only governs the initiation and termination of recording, but also the categorizing of the recording.  At the end of recording, or end of shift, the officer must choose if the video segments are critical, non-critical, or would be considered evidence.   For the purposes of BWV categories, a few examples of critical, non-critical, and evidence are listed below:

I.    Critical
  a.    Vehicle stop where seizure and/or arrest is made
  b.    Injury to an officer or suspect
  c.    Use of force
  d.    Formal or administrative complaint/investigation
  e.    Or as determined by policy
II.    Non-critical
  a.    Warnings
  b.    Tickets
  c.    Routine interactions with public
III.    Evidence
  a.    Any images or video captured that an officer reasonably believes constitutes evidence in a criminal case

OMAG recommends a 3 year retention for a critical category and a 180 day retention for non-critical category.  Evidence should be maintained for the amount of time required by statute, until the case is adjudicated, or all appeals have been exhausted. 


Body Worn Video and Records Retention was written by Matthew Love and Kevin McCullough.  You may contact the authors at mlove@omag.org or kmccullough@omag.org .  The information in this bulletin is intended solely for general informational purposes and should not be construed as or used as a substitute for legal advice or legal opinion with respect to specific situations, since such advice requires an evaluation of precise factual circumstances by an attorney.
 

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The Probationary Period

Facts About the Probationary Period

Did you know?

  1. Probationary periods originated in union environments. Probationary periods originated to give employers the opportunity to terminate new employees within a reasonable period of time without all the paperwork and hearings contemplated by a collective bargaining agreement.
  2. Probationary periods are not required for at-will employers. The at-will doctrine states that absent a contract, either express or implied, to the contrary, an employer can terminate an employee for any reason or no reason at all. In a non-union environment, probationary periods just aren’t necessary.
  3. Probationary periods may be construed as an implied contract. A probationary period could create an implied contract.  When you tell an employee you have 90 days to show us that you can do the job, what is the employee thinking?  “I have a permanent job for at least 90 days.”  Or, maybe, “After 90 days I have a job for life.” A written agreement clearly stating that the employment relationship is at-will is the only defense in this situation.
  4. Termination during the probationary period does not disqualify employees from receiving unemployment. The probationary period has no bearing on whether an employee is awarded unemployment benefits.
  5. Probationary periods do not protect against lawsuits.  Probationary employees have the same rights as a non-probationary employee when it comes to filing lawsuits. Probationary employees can file lawsuits alleging wrongful termination, breach of contract, discrimination, harassment, failure to train, etc.  And, there are limited situations where probationary employees can sue for due process violations.  For example, if an employee is terminated in the probationary period for alleged criminal acts that were made public by the municipality, the municipality would owe this employee a name-clearing hearing in order to protect and defend his or her good name.

Tips for Implementing a  Successful Probationary Period

  1. Be clear about at-will employment status.  Make sure employees understand the employment relationship is at-will during and after the probationary period. This is vital to the defense of any claim that the municipality created an implied contract with the employee.
  2. Be clear about your expectations. Objective goals need to be expressly stated to the employee regarding expectations.  Be sure that the employee understands (a) how long the probationary period will last, (b) what needs to be accomplished during that period, (c) how often a review will occur and (d) what standards need to be met in order to successfully complete the probationary period.
  3. Give feedback regularly. Supervisors should conduct periodic reviews with the employee to provide feedback about how the employee is progressing and what needs to be improved.  If the employee is having performance issues, offer detailed guidance and provide additional training if necessary.  Be sure that the employee assigned to provide guidance to the probationary employee is knowledgeable and experienced.
  4. Encourage supervisors to ask HR for help if there is a concern.  Explain to supervisors that HR is a resource and can help ensure employees are being treated fairly and consistently between municipal departments or with prior supervisors. Give the supervisors examples of what can go wrong when they don’t ask for help.  For example, explain the problem created if they place a struggling employee on a one-month probationary period but a former supervisor gave employees three months to improve his/her performance.  Or ask, if sued, how does the supervisor want to be perceived by a jury – as the mean supervisor who did not give the employee a second chance or the supervisor who gave the employee every opportunity (within reason) to correct the problem.
  5. Document Document Document. Remember, if it’s not written down it did not happen, but if you write it down, you own it!  If an employee can’t perform the essential functions of the position, you’ll likely want to terminate the employment relationship. For the best legal defense be sure the supervisor has documented dates, times, locations, witnesses of the employee’s performance, efforts to train, coach and manage, and so on.
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OMAG Provides Up to $25,000 Defense-Only Coverage for FMLA and OADA Claims

As of June 22, 2017, OMAG is providing defense-only coverage for FMLA and OADA claims up to $25,000. As many of you are aware, prior to this, OMAG declined coverage altogether of FMLA and OADA claims because the only recoverable damages in those cases are wages and employee benefits.  

This new defense-only coverage will allow members to have expert legal counsel at OMAG legal counsel rates. Here are the highlights of the terms of coverage:
•    This coverage is not available when OMAG is providing coverage and defending any of the above causes of action under a reservation of rights. 
•    This Coverage does not and shall not be construed as an agreement by OMAG to indemnify, pursuant to this Coverage, the plan member for any sums the plan member becomes legally obligated to pay.
•    OMAG will not commit you or a plan member to any settlement under this Coverage without your consent unless OMAG at our sole discretion deems it to be in the best financial interests of OMAG. 
•    $25,000 Total Defense Allotment: The total cost of defense which OMAG will be responsible to pay shall not exceed twenty-five thousand dollars ($25,000.00). The $25,000 allotment cannot be used by you to offset any settlement or judgment.
•    Plan member will enter into an agreement with OMAG defense counsel prior to commencement of a defense under this Coverage to address the legal defense once the allotment under this Coverage has been exhausted. 
•    Any claim under this Coverage shall be defended in your name by the counsel selected by us.
•    If a plan member retains separate counsel, any charge made by separate counsel will be the plan member’s responsibility. Our counsel will cooperate with separate counsel. 
•    Plan member shall have authority to control the legal proceedings, including determining whether OMAG defense counsel has primary defense responsibility or merely provides assistance to your separate counsel. 

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EEOC Is Going Paperless - Please Contact Them to Assign a Designated Email Recipient

The Equal Employment Opportunity Commission (EEOC) is now sending Charges of Discrimination via email.  If there is a charge filed against your municipality, the EEOC will send a Notice of Charge to the municipality’s representative as designated in the EEOC’s computer system.  The EEOC might obtain this email address from the Charging Party, or may obtain it from past email communications with the municipality.  If the EEOC does not have the correct designated representative in their system, it could result in a random employee receiving the notice of the Charge of Discrimination. To verify who the EEOC has listed as your municipality’s representative, please mail, email or fax the name of the municipality and the designated representative, along with the job title, mailing address, email address and telephone number of the designated representative to:

Adrian McDaniel, EEOC Supervisory Investigator
215 Dean A. McGee, Suite 524
Oklahoma City, OK  73102
adrian.mcdaniel@EEOC.gov
fax number (405) 231-4911

Because there is a very real possibility that a random employee could receive the Notice of Charge, you should instruct all employees to immediately contact the Human Resources Director, City Manager or Mayor (whichever applies to your municipality) if they get an email from the EEOC.  Also, you should advise all employees to refrain from downloading the Charge and to keep any information received by the email as confidential.

The filing of an EEOC Charge is the first step to an employment lawsuit.  The response to the EEOC charge is critical because it lays the foundation for a successful defense of the lawsuit. The consequences of a sloppy, ineffective or inaccurate response can cost thousands of additional dollars in legal expenses and can lead to the admissibility of findings and determinations made by the EEOC at the trial level.  

For these reasons, EEOC Charges of Discrimination are covered under OMAG’s Municipal Liability Protection Plan (MLPP).  If your municipality receives an EEOC Charge, please forward it to OMAG at claims@omag.org or directly to our Legal Department at spaulson@omag.org or mlove@omag.org.

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Authority to Arrest

This bulletin is intended to make police officers and municipalities aware of the potential civil liability associated with arresting individuals for obstruction of a public official when performing their police duties.

Introduction

Officers routinely encounter individuals who are disrespectful, challenge their authority and criticize their actions.  General criticism of the police, even if expressed in abusive or disrespectful terms, is not obstruction and is generally protected free speech.  The Supreme Court requires substantial justification before police can interfere with the right to free speech or make an unlawful arrest. Making inappropriate arrests of individuals for obstructing a police officer in circumstances where courts will find their actions to be merely an exercise of their First Amendment right to free speech can be counter-productive, both in terms of community relations and potential civil liability.

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