Technology and The Fourth Amendment: United States Supreme Court Holds That Police Officers Violate The Fourth Amendment By Installing A GPS Tracking Device On A Suspect’s Vehicle And Tracking Its Movements Without A Warrant Or Consent
Title: Technology and The Fourth Amendment: United States Supreme Court Holds That Police Officers Violate The Fourth Amendment By Installing A GPS Tracking Device On A Suspect’s Vehicle And Tracking Its Movements Without A Warrant Or Consent
Publication: From the February 3, 2012 Publication of the Barker, Scott, Gelfand & James, P.C. Weekly Legal Update
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Author: Jeffrey A. Jaketic, Esquire
On December 9, 2011, we reported on the case of United States v. Jones, wherein the United States Supreme Court was called upon to decide whether police officers violated a person’s Fourth Amendment rights by attaching a GPS tracking device to his vehicle without a valid warrant and tracking the vehicle’s movements.
Antoine Jones, a nightclub owner from the District of Columbia, was convicted of conspiracy to distribute five kilograms or more of cocaine and fifty or more grams of cocaine base, in violation of federal statutes. The conviction stemmed from an investigation dating back to 2004 when an FBI Task Force began investigating Jones for suspected cocaine trafficking. This investigation included, among other investigative techniques, the Task Force covertly installing a GPS tracking device on Jones’ Jeep Grand Cherokee while the Jeep was parked in a public parking lot in Maryland and thereafter monitoring the Jeep’s movements continuously for a period of 28 days. The agents did not have a valid warrant to install the GPS device and did not have Jones’ consent. Ultimately this GPS surveillance led agents to a suspected stash house in Fort Washington, Maryland, which the agents searched to recover large quantities of cocaine and cash. Jones appealed his conviction in District Court, and the Court of Appeals reversed the conviction. The United States Supreme Court granted certiorari to determine whether the agents violated Jones’ Fourth Amendment rights.
On January 23, 2012, the United States Supreme Court unanimously held that the Government’s attachment of the GPS device to the vehicle, and its use of that device to monitor the vehicle’s movements, constituted a search under the Fourth Amendment, and declared the search unlawful because it was done without a warrant or consent.
Justice Antonin Scalia delivered the opinion of the Court and relied heavily upon historical concepts of Fourth Amendment protection, wherein “search and seizure” jurisprudence was tied primarily to common law trespass. Scalia found significant the fact that the Government physically occupied private property, i.e., Jones’ Jeep, for the purpose of obtaining information, and by virtue of such a trespass, violated early decisions dating back to the late 1700’s. Although Scalia recognized that later cases have deviated from this property approach and that the modern analysis frames the issue in terms of whether the Government has violated a persons’s “reasonable expectation of privacy,” Scalia wrote that the “reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test.” As such, Scalia rejected the Government’s argument that Jones had no “reasonable expectation of privacy” in the public roads on which Jones traveled.
Fri, 03 Feb 2012 21:33:00 +0000
The Uphill Battle Faced by Defendants Seeking Fees Against a Plaintiff for Filing a Frivolous Civil Rights Lawsuit
Title: The Uphill Battle Faced by Defendants Seeking Fees Against a Plaintiff for Filing a Frivolous Civil Rights Lawsuit
Publication: From the January 23, 2012 Publication of the Barker, Scott, Gelfand & James, P.C. Weekly Legal Update
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Author: Jeffrey P. Sarvas, Esquire
Civil rights lawsuits often cost a significant amount of money to defend, even when the plaintiff’s claims have no merit. The most frivolous of such claims can cost many thousands of dollars in litigation fees. When a defendant prevails against such a frivolous lawsuit, the first inclination may be to pursue the plaintiff for legal fees. Pursuing fees as a prevailing defendant, however, is often an uphill battle.
In federal litigation, the court may “prescribe sanctions [under Fed. R. Civ. Pro. 11], including fees, only in the exceptional circumstance where a claim or motion is patently unmeritorious or frivolous.” Doering v. Union County Bd. of Chosen Freeholders, 857 F.2d 191, 194 (3d Cir. 1988) (internal citations and quotations omitted). Although, attorney fees may be awarded under Rule 11 “in an effort to discourage plaintiffs from bringing baseless actions or making frivolous motions, the Rule's primary purpose is not wholesale fee shifting but rather correction of litigation abuse.” Id. As such, “[f]ee-shifting is but one of several methods of achieving the various goals of Rule 11.” Instead of issuing an award of attorney fees as a sanction under Rule 11 a court may instead prescribe “publication, an order barring an attorney from appearing for a period of time, reprimand, dismissal of baseless claims or defenses, or even ordering the attorney who violated the rule to circulate in his or her firm a copy of the opinion in which the pleadings were criticized.” Id. (internal citations omitted). Importantly, in fixing an award of attorney fees under Rule 11, the court must consider the ability of the sanctioned individual to pay the fee award. Id. at 196.
In the federal system, whether the plaintiff is represented by counsel or advanced the lawsuit as a pro se plaintiff, it is difficult for a defendant to recover attorney fees under Rule 11. First, a prevailing defendant must show that the plaintiff’s lawsuit had no merit whatsoever, a difficult standard of proof. Then, even if a prevailing defendant can show that a plaintiff’s lawsuit was completely frivolous, there are numerous alternative sanctions available to the court besides attorney fees and the court is obliged to apply only the “minimum” sanction necessary to deter the wrongful conduct. Finally, because the court must consider an individual’s ability to pay in assessing a sanction under Rule 11, an indigent plaintiff appearing pro se would be unlikely to receive a meaningful monetary sanction simply based on their inability to pay.
In the federal system, an alternative basis to Rule 11 for fees is that, any party may attempt to recoup attorney fees under 28 U.S.C. § 1927 from “[a]ny attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously;” however, “[a] precondition to the imposition of attorneys' fees under this provision is a finding by the district court that the attorney acted in bad faith.” Downey v. Coalition Against Rape & Abuse, Inc., 2005 U.S. Dist. LEXIS 7340, *14 (D.N.J. 2005).
In federal civil rights litigation under 42 U.S.C. Section 1983, a prevailing defendant may recover counsel fees under 42 U.S.C. Section 1988, if the defendant can establish that the plaintiff's action was “frivolous, unreasonable, or without foundation.” Barnes Found. v. Township of Lower Merion, 242 F.3d 151, 158 (3rd Cir. 2001). Under § 1988 “it is not necessary that the prevailing defendant establish that the plaintiff had subjective bad faith in bringing the action in order to recover attorney's fees. Rather, the relevant standard is objective.” Id. Nonetheless, “the Supreme Court has indicated that it is important that a court resist the understandable temptation to engage in post hoc reasoning by concluding that because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation.” Id. citing, Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421-22, 98 S. Ct. 695, 700 (1978). The Third Circuit has outlined several factors that may be considered in determining whether to award attorneys' fees to a prevailing defendant under § 1988: (1) whether the plaintiff established a prima facie case; (2) whether the defendant made a settlement offer; (3) whether the case was dismissed prior to trial; (4) whether the issue was one of first impression; and (5) whether there was a real threat of injury to plaintiff. Id. Unlike under Rule 11, a plaintiff’s ability to pay is generally not a consideration that bears on the amount of an award of attorney fees under § 1988. See, Child Evangelism Fellowship of N.J., Inc. v. Stafford Twp. Sch. Dist., 2006 U.S. Dist. LEXIS 62966 (D.N.J. 2006); Inmates of Allegheny County Jail v. Pierce, 716 F.2d 177 (3d Cir. 1983).
Under New Jersey civil rights law, the standard for a prevailing defendant to recover attorney fees under fee shifting statutes is also quite steep. For example, under the LAD a court may award attorney fees to a prevailing plaintiff, even if the plaintiff’s victory is merely nominal, but on the other hand, attorney fees and costs may only be awarded to a prevailing defendant under the LAD if there is a determination by the court that the lawsuit was brought by plaintiff against defendant in bad faith. See, e.g., Tarr v. Ciasulli, 181 N.J. 70, 86-97 (2004); compared with, Michael v. Robert Wood Johnson University Hosp., 398 N.J. Super. 159, 163-66 (App. Div. 2008); see also, N.J.S.A. § 10:5-27.1. In Michael v. Robert Wood Johnson University Hosp., the New Jersey Appellate Division examined the meaning of “bad faith” under N.J.S.A. § 10:5-27.1 and found that it was best defined as “a reckless disregard or purposeful obliviousness of the known facts.” Michael v. Robert Wood Johnson University Hosp., 398 N.J. Super. 159, 165 (App. Div. 2008) citing, New Jersey Title Ins. Co. v. Caputo, 163 N.J. 143, 155 (2000). The Court in Michael v. Robert Wood Johnson University Hosp., also found that a plaintiff’s ability to pay should be taken into account in assessing an award of attorney fees under the LAD to a prevailing defendants. Id. at 167. Finally, in deciding whether to award attorney fees under the LAD, courts have also invoked the principle that “the award of attorneys’ fees to a prevailing defendant is not routine and should only be sparingly awarded.” Downey v. Coalition Against Rape & Abuse, Inc., 2005 U.S. Dist. LEXIS 7340, *13-14 (D.N.J. 2005) citing, Hurley v. Atlantic City Police Dep't, 933 F. Supp. 396, 427 (D.N.J. 1996).
Under New Jersey’s CEPA “[a] prevailing employer may also be awarded fees, but only where a judge determines that the action was instituted by plaintiff without basis in law or in fact.” Best v. C&M Door Controls, Inc., 200 N.J. 348, 355 (2009); N.J.S.A. § 34:19-6. “In other words, under New Jersey’s CEPA, the employer must be vindicated and the employee must have proceeded without basis in law or in fact in order for the employer to recover fees.” Id. at 358. A previous denial of a motion to dismiss a plaintiff’s CEPA claim precludes a determination by a court that a plaintiff brought his or her lawsuit “without basis in law or fact.” See, Best v. C & M Door Controls, Inc., 402 N.J. Super. 229, 239 (App. Div. 2008) affirmed by, Best v. C&M Door Controls, Inc., 200 N.J. 348, 358 (2009). Unlike the standard for recovery of attorney’s fees under the LAD, whether a plaintiff proceeded “without basis in law or fact” is an objective standard. See, e.g., Robles v. United States Envtl. Universal Servs., 2011 U.S. Dist. LEXIS 115516, *5-7 (D.N.J. 2011).
Concluding Remarks
Examining the proofs necessary for a prevailing defendant to recover attorney fees under the fee shifting statutes referred to above, it appears that 42 U.S.C. § 1988 is the least burdensome because it is an objective standard which does not take into account the plaintiff’s ability to pay. CEPA employs a similar objective standard, but case law regarding an award of attorney fees to a prevailing defendant under CEPA is underdeveloped and it is unclear whether a plaintiff’s ability to pay should be considered. Recovery of attorney fees for a prevailing defendant under the LAD would seem to be the most difficult standard since it requires a subjective determination that the plaintiff proceeded in bad faith and also takes into account a plaintiff’s ability to pay in awarding any attorney fee. Regardless of the statute or rule under which a prevailing defendant seeks fees, it is clear that any prevailing defendant must sustain a high burden of proof to recover attorney fees from a defeated plaintiff.
Mon, 23 Jan 2012 14:37:00 +0000
Proposed Policy Controlling Use of Personal Electronic Devices
Title: Proposed Policy Controlling Use of Personal Electronic Devices
Publication: From the January 13, 2011 Publication of the Barker, Scott, Gelfand & James, P.C. Weekly Legal Update
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Author: A. Michael Barker, Esquire
As a society, we continue to become increasingly “plugged in” to our personal electronic devices. Many people, (including your employees) have the ability to check email, Facebook, play games, listen to music, watch movies, or use a variety of other tools from their personal electronic devices, 24 hours a day, from any location, including their workplace. While the ability to use a personal electronic device [“PED”] can be helpful in the workplace if used properly, such as using the calendar function to coordinate work schedules or being able to respond to a work related email from any location including home, the use of PED’s is also a potential danger and distraction if the allowable use of PED’s at work is not clearly delineated. For example, the use of PED’s may present a safety concern in that employees might not hear approaching machinery, emergency warnings, or verbal communication from other employees. Accordingly, we offer the following personal electronic device exemplar policy.
*We note that each employer must carefully evaluate its own needs and concerns and must cautiously craft its own policy to meet those needs and concerns. For instance, the policy below entirely prohibits the use of PED’s during business hours; however, an employer may find that it is valuable to allow an employee to use their own PED for certain business related functions. If that is the case, then the policy should be modified accordingly. Further note: This proposed policy DOES NOT apply to cell phone usage and a separate policy for cell phone use should be developed.
Personal Electronic Device Policy Purpose The purpose of this Policy is to promote a safe and productive work environment. Personal Electronic Devices (“PED’s”) can create a disruption in the work place, interrupt and decrease production; and, in some situations the use of Personal Electronic Devices can create safety hazards. For example, the use of PED’s may present a safety concern in that employees might not hear approaching machinery, emergency warnings, or verbal communication from other employees. Definition For purposes of this Policy, Personal Electronic Devices include but are not limited to, iPods, MP3 players, CD players, DVD players, and radios. Policy and Procedure Employees are prohibited from using Personal Electronic Devises while on the clock. PED’s may be used during rest breaks or while on lunch break in designated areas. Any violation of this Policy may result in discipline, up to, and including termination. The undersigned employee acknowledges that he/she has read the foregoing Policy and agrees to comply with such Policy.
______________________ Date
______________________ ______________________________ Name (Print) Signature
Disclaimer The individuals who maintain this blog work at Barker, Scott, Gelfand & James, P.C. The information, comments and links posted on this blog do not constitute legal advice. No attorney-client relationship has been or will be formed by any communication(s) to, from or with the blog and/or the blogger. For legal advice, you may contact an attorney at Barker, Scott, Gelfand & James, P.C. or an attorney of your choice. Without permission of the blogger, do not send any confidential or privileged information to the blogger. Also, neither Barker, Scott, Gelfand & James, P.C. nor the blogger will assume any liability or responsibility for your information. If you send any information, documents or materials to the blog, you give permission for the blogger to include them on or in the blog. No information, documents or materials you send to the blog will be considered confidential or privileged by Barker, Scott, Gelfand & James, P.C. or its lawyers. Also, no such information, documents or materials will be returned to you. All decisions relating to the content belong to the blogger.
Fri, 13 Jan 2012 20:48:00 +0000
Increasingly, the trend in New Jersey decisional law is to deny whistleblower status to employees who make complaints in the course of their job duties.
Title: Increasingly, the trend in New Jersey decisional law is to deny whistleblower status to employees who make complaints in the course of their job duties.
Publication: From the December 30, 2011 Publication of the Barker, Scott, Gelfand & James, P.C. Weekly Legal Update
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Author: Vanessa E. James, Esquire
When an employee in the course of his or her job duties, makes a report about a potential law, rule, regulation, or public policy violation, the employee cannot be considered a whistleblower. See, Massarano v. New Jersey Transit, 400 N.J. Super. 474, 491 (App. Div. 2008). This rationale has been repeated by the recent cases of Richardson v. Deborah Heart & Lung Ctr., 2010 N.J. Super. Unpub. LEXIS 1795 (App. Div. 2010); Aviles v. Big M., Inc., 2011 N.J. Super. Unpub. LEXIS 564 (App. Div. 2011); and White v. Starbucks Corporation, 2011 N.J. Super. Unpub. LEXIS 2982 (App. Div. December 9, 2011).
The plaintiff in Massarano was a Security Operations Manager for New Jersey Transit. Massarano v. New Jersey Transit, 400 N.J. at 477. Plaintiff was advised that schematics for bridges, tunnels, a new rail operations center, underground gas lines, and building specifications had been discarded in a bin on a loading dock that New Jersey Transit shared with other building tenants. Id. at 479. Plaintiff was concerned that the documents were out and available to anyone and it seemed to her that the manner in which the documents were discarded had to be an infraction and violation of public policy because it was a threat to public safety and security. Id. at 480. In dismissing plaintiff’s CEPA claim, the Appellate Division reasoned that the plaintiff could not be a whistleblower because she was “merely doing her job as the security operations manager by reporting her findings and opinion” to her superior. Id. at 491.
In Richardson v. Deborah Heart & Lung Ctr., the plaintiff was an assistant manager in a laboratory at the Deborah Heart and Lung Center. 2010 N.J. Super. Unpub. LEXIS 1795 *1 (App. Div. 2010). One of the plaintiff’s administrative duties as an assistant manager was to ensure that all information in the laboratory database was accurate. Id at *3. The plaintiff resigned as a result of a reassignment which she did not care for; and, Plaintiff alleged that she was retaliated against for her actions in ensuring that the laboratory database information was accurate. Id at *8-13. “Far from disclosing or threatening to disclose to a supervisor or public body, N.J.S.A. 34:19-3(a), or objecting to or refusing to participate in, N.J.S.A. 34:19-3(c), the employer's activity, policy, or practice that was contrary to law or public policy, plaintiff described her protected conduct as enforcement of Deborah's policy or practice of correcting potential billing mistakes.” Id. at *14 The trial court dismissed plaintiff’s complaint, finding no CEPA claim. Id. at *15. The Appellate Division affirmed the trial court’s dismissal, holding that plaintiff failed to allege a protected activity under CEPA, and failed to identify the activity, policy or practice of the employer that the plaintiff could have reasonably believed was being violated. Id. at *13. On March 8, 2011, relying on the rationale of Massarano, the Appellate Division held that the plaintiff’s confrontation of a suspected shoplifter did not constitute a whistleblowing activity pursuant to CEPA. Aviles v. Big M., Inc., 2011 N.J. Super. Unpub. LEXIS 564 *12 (App. Div. 2011). “A plaintiff’s job duties cannot be considered whistle-blowing conduct.” Id. citing Massarano v. N.J. Transit, 400 N.J. Super. 474, 491 (App. Div. 2008).
On December 9, 2011, the Appellate Division decided another case based upon the rationale of Massarano. The Appellate Division held that the plaintiff’s responsibility to oversee the performance of store managers in her district included: (1) discussing missing merchandise with a store manager; (2) dealing with a lack of thermometers to monitor safe food temperatures; (3) addressing unsanitary conditions in a store; (4) dealing with alcohol consumption by employees while on the job; (5) the alleged physical attack of a customer; (6) after-hours sex parties; (7) addressing electronic distribution of a pornographic photograph; and (8) correcting the improper configuration of tables and chairs at a store. White v. Starbucks Corporation, 2011 N.J. Super. Unpub. LEXIS 2982 *26 (App. Div. December 9, 2011). The Appellate Division noted that it was the plaintiff’s job to ensure that the alleged violations were addressed and corrected and that the plaintiff raised and discussed these alleged violations of law with her supervisors as part of her job responsibilities. Id. The Court held: “Thus, like the plaintiff in Massarano, the record here shows that, as part of her job, plaintiff reported violations of law to her supervisor as well as others in management to keep them abreast of the situation and the action she was taking as district manager. Stated differently, plaintiff did not engage in the activities covered and protected by CEPA.” Id. at *27.
Thus, the trend in New Jersey decisional law appears to deny whistleblower status to employees who report violations of a law, rule, or regulation as part of their job description.
Fri, 30 Dec 2011 19:30:00 +0000
Are Attorney’s Fees Under the New Jersey Tort Claims Act Allowed if a Plaintiff Makes a Recovery Against a Public Entity or Public Employer?
Title: Are Attorney’s Fees Under the New Jersey Tort Claims Act Allowed if a Plaintiff Makes a Recovery Against a Public Entity or Public Employer?
Publication: From the December 22, 2011 Publication of the Barker, Scott, Gelfand & James, P.C. Weekly Legal Update
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Author: A. Michael Barker, Esquire
The New Jersey Tort Claims Act, N.J.S.A. 59:9-5 provides that in some circumstances attorney’s fees may be awarded to a successful claimant. The reader should keep in mind that the New Jersey Tort Claims Act does not limit attorney’s fees allowed for a successful claimant under the New Jersey Law Against Discrimination or New Jersey Conscientious Employee Protection Act. The New Jersey Tort Claims Act, N.J.S.A. 59:9-5 provides, in pertinent part, as follows: “In an action brought against a public entity or a public employee under this act, the court may, in its discretion, award a successful claimant (a) costs ordinarily allowable in the private sector (b) expert witness fees not exceeding a total of $100.00 and (c) reasonable attorney’s fees; provided however that there shall be no such recovery in any case where damages are awarded for pain and suffering.” In Nickerson v. City of Newark, 220 N.J. 284, 286 (Law Div. 1987), it was held that where the plaintiff had entered into a contingent fee arrangement with his attorney there would be no award of counsel fees since such an award would not compensate the plaintiff for losses but would result in a windfall for the attorney. Accord, Yakal-Kremski v. Bd. of Educ., 329 N.J. Super. 567, 579 (App. Div. 2000). Subsequent to the Nickerson decision, in Furey v. County of Ocean, 287 N.J. Super. 42 (App. Div.), certif.. den. 144 N.J. 378 (1996), the court held that the existence of a contingency fee agreement would not preclude an award of attorney fees under N.J.S.A. 59:9-5. Further clarification was provided in Yakal-Kremski v. Bd. of Educ., 329 N.J. Super. 567, 578 (App. Div. 2000), where the court agreed that the existence of a contingency fee agreement did not preclude an attorney fee award but, interpreting Furey and Nickerson, the Appellate Division indicated that the relevant factor in allowing a fee where there is a contingency fee agreement is whether, under the circumstances, the fee award would help to reimburse the plaintiff fully or act as a windfall to the attorney. Id. at 573-575, 577, 579. Notably, the Appellate division held that the trial judge must balance factors which include the policy of making plaintiff whole to the full extent of her economic loss, the fact of a contingency fee agreement, the time expended, the recognition that the public must ultimately assume the costs of any fees awarded, the forecast of recovery and the actual result achieved. Id. At 579. The Appellate Division in Yakal found that the plaintiff had understood early on that there would only be a limited recovery, yet chose to incur substantial fees and costs, and the actual result achieved was very modest. Accordingly, under these circumstances the court held that the trial judge had abused her discretion in awarding a fee far in excess of the recovery, (one which made the plaintiff whole for her cost of litigation rather than her economic loss), and the Appellate Division exercised original jurisdiction to reduce the fee award. All of the foregoing is of interest when facing a claimant seeking attorneys fees based on a claim characterized as purely an economic claim. The reader should keep in mind that when the claim presented is one for damages based on pain and suffering, N.J.S.A. 59:9-5 explicitly provides that there shall be no recovery for attorney fees. It also bears repeating, the New Jersey Tort Claims Act does not limit attorneys fees which are allowed for a successful claimant under the New Jersey Law Against Discrimination and the New Jersey Conscientious Employee Protection Act.
Thu, 22 Dec 2011 14:09:00 +0000
Does your organization have a “safe haven” from a harassment lawsuit? What constitutes an effective harassment policy?
Title: Does your organization have a “safe haven” from a harassment lawsuit? What constitutes an effective harassment policy?
Publication: From the December 16, 2011 Publication of the Barker, Scott, Gelfand & James, P.C. Weekly Legal Update
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Author: Vanessa E. James, Esquire
As recently as October 12, 2011, the New Jersey Appellate Division, in the case of Wallace v. Mercer County Youth Det. Ctr., 2011 N.J. Super. Unpub. LEXIS 2577, 15-16 (App. Div. Oct. 12, 2011), re-emphasized the New Jersey Supreme’s Court requirements for having an effective anti-harassment policy. Having an effective anti-harassment policy can be an organizations best defense from future lawsuits based on allegations of discrimination and harassment.
The New Jersey Supreme Court has held that the components of an effective anti-harassment policy are: (1) a formal prohibition of harassment; (2) formal and informal complaint structures; (3) anti-harassment training; (4) sensing and monitoring mechanisms for assessing the policies and complaint procedures; (5) and unequivocal commitment to intolerance of harassment demonstrated by consistent practice. Gaines v. Bellino, 173 N.J. 301, 313 (2002).
Entities, both public and private should be aware that "the existence of a sexual harassment policy alone is insufficient to establish the affirmative defense to vicarious liability in a hostile work environment claim." Velez v. Jersey City, 358 N.J. Super. 224, 235 (App. Div. 2003) (citing Gaines, supra, 173 N.J. 301).
In order to have a “safe haven” from vicarious liability due to an employee’s harassment of others an employer may consider:
(1) periodic publication of the employer's anti-harassment policy;
(2) the presence of an effective and practical grievance process for employees to use; and,
(3) training for workers, supervisors, and managers concerning how to recognize and eradicate unlawful harassment. Cavuoti v. N.J. Transit Corp., 161 N.J. 107, 120-21(1999).
The New Year is an excellent time to re-publish and re-distribute policies and to institute periodic training for both managers and employees. An employer may consider a yearly update and redistribution of policies and procedures and have employees sign off on receipt of an updated personnel manual. An employer may also consider a sign off sheet which states that an employee (1) has received policies and procedures; (2) understands policies and procedures, particularly the complaint or grievance procedure; and (3) that the employee is not aware of any harassment or other discriminatory behavior in the workplace. An employer may consider updating training both with live training and using resources available on the internet, including periodic emails to all employees emphasizing anti-harassment and anti-discrimination policies and the employer’s commitment to maintaining a workplace free of harassment and discrimination. No matter how big or small your organization, department, or business, these steps may provide a shield from future harassment lawsuits.
Fri, 16 Dec 2011 19:10:00 +0000
Technology and The Fourth Amendment: Do Police Officers Violate The Fourth Amendment By Installing A GPS Tracking Device To A Suspect’s Vehicle And Tracking Its Movements Without A Warrant?
Title: Technology and The Fourth Amendment: Do Police Officers Violate The Fourth Amendment By Installing A GPS Tracking Device To A Suspect’s Vehicle And Tracking Its Movements Without A Warrant?
Publication: From the December 9, 2011 Publication of the Barker, Scott, Gelfand & James, P.C. Weekly Legal Update
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Author: Jeffrey A. Jaketic, Esquire
In United States v. Jones, the United States Supreme Court has been called upon to decide whether police officers violate the Fourth Amendment by attaching a GPS tracking device to a person’s vehicle without a valid warrant.
Antoine Jones, a nightclub owner from the District of Columbia, was convicted of conspiracy to distribute five kilograms or more of cocaine and 50 or more grams of cocaine base, in violation of federal statutes. The conviction stemmed from an investigation dating back to 2004 when an FBI Task Force began investigating Jones for suspected cocaine trafficking. This investigation included, among other investigative techniques, the Task Force covertly installing a GPS tracking device on Jones’ Jeep Grand Cherokee while the Jeep was parked in a public parking lot and thereafter monitoring the Jeep’s movements continuously for a period of 28 days. The agents did not have a valid warrant to install the GPS device and did not have Jones’ consent. Ultimately this GPS surveillance led agents to a suspected stash house, which the agents searched to recover large quantities of cocaine and cash.
Jones appealed his conviction from District Court, and the Court of Appeals reversed the conviction. The United States Supreme Court has granted certiorari to determine whether the agents violated Jones’ Fourth Amendment rights.
The United States has argued that under Katz v. United States, privacy interests protected by the Fourth Amendment do not extend to matters knowingly exposed to the public, and that because Jones’ operation of the vehicle on public roadways was open to the public, he did not have a reasonable expectation of privacy. As such, the United States argues that the officers did not conduct a search. Furthermore, the United States has relied heavily upon a case from 1983, United States v. Knotts, that dealt with officers using a beeper to track a suspect’s car from a helicopter. The Supreme Court held this conduct did not violate the Fourth Amendment. Finally, the United States argues that even if the installation of the GPS device and subsequent surveillance did constitute a search, the search was reasonable and therefore not a violation of the Fourth Amendment.
Jones has argued that he had a reasonable expectation of privacy that a GPS tracking device would not be installed on his vehicle to continuously track his movements, based on the fact that the agents physically intruded onto his property without his knowledge or consent by installing the GPS device. Furthermore, Jones argues that warrantless GPS surveillance is a “grave and novel threat” to the personal privacy and security of individuals, enabling the government to indiscriminately and continuously monitor any individual’s movements. Finally, Jones argues that although a person traveling on public roadways knowingly exposes himself to visual observation, he does not knowingly offer GPS data to public viewing, which is what the agents obtained in this case.
The Supreme Court heard oral arguments on November 8, 2011, and is expected to render a decision by the end of June of 2012. The case reveals the need to reevaluate how changes in technology alter individuals’ reasonable expectations of privacy under the Fourth Amendment.
Fri, 09 Dec 2011 20:40:00 +0000
Deadlines in Days - Police administrative disciplinary cases
Title: Deadlines in Days - Police administrative disciplinary cases
Publication: From the December 2, 2011 Publication of the Barker, Scott, Gelfand & James, P.C. Weekly Legal Update
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Author: Todd J. Gelfand, Esquire
One of the most common complaints about lawyers and the judicial system is that the system moves cases slowly. Attorneys with traditional, non-administrative civil litigation practices tend to fall into the practice habits dictated by the discovery and scheduling rules which apply to regular civil litigation. Attorneys in civil practice can expect that a case can be filed, pleadings taken care of within 2-3 months, written “paper” discovery (interrogatories and document exchanges) for another 2-4 months, followed by several months for depositions to be conducted, additional time for expert reports to be exchanged and expert depositions to be conducted, time for Independent Medical Exams (“IMEs”) where warranted and time thereafter for summary judgment motions to be filed, argued and decided. The “pre-trial” steps can generally take in the range of 1-2 ½ years on average.
Such a timeframe is a stark contrast to administrative litigation in police and fire disciplinary proceedings. The timelines in administrative matters are measured in days. While an investigation is not technically subject to a ticking 45 day clock until there is “sufficient information” for an officer to be charged, there is authority for dismissal of charges, regardless of their merit, if an investigation sits for too long without ongoing investigative effort. In addition to the 45 day time clock, there is a 30 day hearing rule, requiring a departmental hearing within 30 days of charges. There is a “hard” and “soft” 30 day hearing rule depending upon whether an officer is suspended with or without pay, such that the 30 day hearing rule is more of a “recommendation” or “target” then a rule in the case of an officer who is being paid pending the outcome. The 30 day rule is one which is often waived in practice. In our experience, defense attorneys use the threat of insistence on enforcement of the 30 day rule in their efforts to leverage a favorable outcome. In order to be prepared to meet the legal requirements where disciplinary targets insist on compliance with these strict timelines, public safety administrations often find themselves needing to act quickly to have in place a prosecuting attorney a hearing officer on board, the basics of the hearing procedures.
In this context it can impractical for agencies/municipalities to engage in the “fair and open” procedures of the Pay to Play laws through the RFP/RFQ process. Not only is that process time consuming and impractical, it is unnecessary from a legal standpoint. Simply put, agencies or municipalities can appoint and hire special counsel at any time and without resort to the fair and open process if that counsel is not disqualified from such “non fair and open” appointments because of disqualifying political contributions. Those firms or attorneys which have not made such contributions can be hired at any time simply by resolution and contract.
N.J.S.A. 19:44A-20.4 et seq is what is known as the “Pay to Play” law which took effect 1/1/2006. The same set of statutes are applicable both to counties and municipalities. For example, see N.J.S.A. 19:44A-20.4. The basic premise in 20.4 is that:
No county can enter into a contract with anticipated value in excess of $17,500 unless awarded by a fair and open process (the RFP/RFQ process) IF, during the year preceding the award of the contract, the contractor has made reportable contributions to any county committee of a political party in that county if a member of that political party is serving in an elective public office of that county when the contract is awarded or to any candidate committee of any person serving in an elective public office of that county when the contract is awarded.
The pay to play law continues, setting forth that if a contract is awarded by fair and open process (RFP/RFQ), the contractor cannot then make certain contributions during the term of the contract.
The law clearly permits counties to award contracts without using a fair and open process when certain requirements are met:
1. The contractor cannot have made “reportable contributions” within the previous year.
2. The contractor cannot then make a reportable contribution during the term of the contract.
3. The contractor (firm) must certify that no reportable contributions were made during the one year preceding the award of the contract.
N.J.S.A. 19:44A-20.8 essentially verifies that a county can appoint conflict counsel without fair and open RFQ/RFP procedures so long as the firm did not make disqualifying “reportable contributions.” The same basic laws govern municipal appointments of special counsel for police and fire agencies.
The recent trend is for more and more internal affairs target officers to have experienced, knowledgeable counsel appointed early in the process, during the investigation stage. Misconceptions about the ability to hire special counsel quickly because of the Pay to Play laws should not put agencies behind the “8 ball” and at a disadvantage in pursuing just results in disciplinary cases, which includes meeting the strict timelines that apply in administrative disciplinary cases.
Fri, 02 Dec 2011 21:40:00 +0000
District Court of New Jersey finds a potential constitutional violation against a municipality for failure to train their police officers: Officers received first aid training, but not practical instruction on when to utilize their training in the field
Title: District Court of New Jersey finds a potential constitutional violation against a municipality for failure to train their police officers: Officers received first aid training, but not practical instruction on when to utilize their training in the field
Publication: From the November 22, 2011 Publication of the Barker, Scott, Gelfand & James, P.C. Weekly Legal Update
Date of Decision: October 25, 2011
Blog Site:
Website:
Author: Jeffrey P. Sarvas, Esquire
In the recent decision, Smith v. Grandsen, the District Court of New Jersey denied summary judgment to the City of Camden on the plaintiff’s deliberate indifference to medical needs claim where the plaintiff had facts showing that while the City provided its police officers with basic first aid training, the City did not provide training on when to properly administer emergency first aid or how to properly interact with emergency personal. 2011 U.S. Dist. LEXIS 131338 (D.N.J. 2011).
In Smith, the District Court of New Jersey considered a motion for summary judgment by the City of Camden. The plaintiffs alleged that a City of Camden police officer, Dean Grandsen, shot one of the plaintiffs, Kashon Smith, now deceased and suing through his estate, twice in the torso. Id. at *4. The plaintiffs alleged that Smith fell face down into a mulch bed after being shot. Id. The plaintiff’s further alleged that Officer Grandsen handcuffed Smith’s hands behind his back and left him face down in the mulch bed. Id. The plaintiffs claimed that while more than twenty-five (25) City of Camden police officers were on scene, no one rendered emergency aid to Smith, attempted to check Smith’s airway, or turned Smith on his back. Id. Plaintiffs alleged that the supervising officer on the scene refused to remove Smith’s handcuff’s despite requests from emergency personal and that, against protocol, no officer rode in the ambulance with Smith, which prevented the paramedics from giving Smith IV fluids because he was still handcuffed. Id. at *4-5. Smith died at the hospital that night. Id. at *5.
Subsequently, the plaintiffs, the estate of Smith and two of Smith’s minor cousins who allegedly witnessed the entire event, brought suit against the City of Camden and others. Id. at *8. One of the claims against the City of Camden was a violation of 42 U.S.C. § 1983 for deliberate indifference to Smith’s medical needs. Id.
Plaintiffs alleged that while the Camden police officers had received first aid training, the City failed to train the officers on when to administer that first aid, which “constituted a municipal policy that caused Smith’s Fourth and Fourteenth Amendment right to be violated.” Id. at *10. The Court found that, taking Plaintiff’s version of events as true, the City of Camden did fail to properly train its officers and that “lack of training constituted a deliberate indifference to a serious medical need and may have contributed to Smith’s death.” Id. at *13. The court relied on the legal principle that “[i]n limited circumstances, a local government's decision not to train certain employees about their legal duty to avoid violating citizens’ rights may rise to the level of an official government policy.” Id. at *11; citing, Connick v. Thompson, 131 S.Ct. 1350, 1359 (2011). In order to establish a claim for failure to train, “policymakers must be on actual or constructive notice that a particular training program causes city employees to violate citizens' constitutional rights . . . [and] policymakers choose to retain that program.” Id. The Court concluded that policymakers had notice in the instant case because,
“[O]fficers are under a duty to render emergency medical assistance to those in their custody. As a high-crime city, Camden City police officers frequently encounter situations in which detainees are in need of emergency medical treatment. City of Camden's failure to have a training program to teach officers about their legal duty to avoid violating citizens' rights by properly rendering emergency first aid to arrestees amounts to a prohibited municipal policy.” Id. at *11-12 (internal citations and quotations omitted.)
In finding that the facts as alleged by the plaintiff’s amount to deliberate indifference by the City of Camden, the Court focused on several key facts: (1) the supervising officer’s refusal to remove Smith’s handcuffs at the request of emergency personal; (2) the failure of any officer to ride in the ambulance with Smith; (3) the City’s of Camden’s failure to submit any evidence of “officers training regarding the duty of cooperate with emergency personnel; and (4) that more than twenty-five police officers were present on scene and none of them rendered any aid to Smith. Id. at *12-13. The court found the lack of action when there were so many officers on scene particularly galling, concluding that:
“Had officers been adequately trained, a reasonable jury could expect that at least one of the officers would have administered emergency first aid or repositioned Smith face-up in accordance with that training. Although these police actions should be a matter of commonsense, Camden police officers evidently needed a training program - but did not have one - to avoid violating citizens' basic constitutional rights.” Id. at 13.
As such, the Court denied the City of Camden’s Motion for Summary Judgment. Id.
This decision highlights the importance of having proper training on the practical application of techniques and methods that officers learn in the classroom. Here, the officers were given first aid training, but were not taught how to apply that training in emergency situations, nor were they trained on how to properly interact with emergency personnel, which, in this case, amounted to a failure to train. Also, the instant decision highlights the importance of community specific training. Here, the Court found that the City of Camden had notice that constitutional violations resulted from the officers lack of training regarding emergency medical situations because such situations were “frequently encountered” by Camden officers. Id. at *11. Thus, as Smith highlights, in order maximize the effectiveness of training, which costs police time and taxpayer money, and to minimize exposure to lawsuits, police departments should be sure that their officers are trained on how to actually apply techniques and methods learned in the classroom and should take care to recognize and implement specific training relevant to the nature and character of the community in which that department operates.
For the full case:
Tue, 22 Nov 2011 18:05:00 +0000
United States Supreme Court hears argument on the issue of the reasonableness of a blanket strip search policy under the Fourth Amendment as applied to prisoners who are admitted to the jail and who only have committed minor offenses.
Title: United States Supreme Court hears argument on the issue of the reasonableness of a blanket strip search policy under the Fourth Amendment as applied to prisoners who are admitted to the jail and who only have committed minor offenses.
Publication: From the November 4, 2011 Publication of the Barker, Scott, Gelfand & James, P.C. Weekly Legal Update
Blog Site:
Website:
Author: Joseph M. Scott, Esquire
On October 12, 2011, the United States Supreme Court heard oral argument in a case involving a New Jersey man who brought a civil rights lawsuit against Essex and Burlington Counties in 2005 alleging that he was wrongfully stripped, searched and humiliated in both counties’ jail after a wrongful arrest for a supposed unpaid fine. Mr. Florence was arrested on a warrant from Essex County that charged him with failing to pay a small fine. He was admitted to the Burlington County jail where a strip search was performed, as well as a visual body-cavity search. He was transferred to the Essex County jail, and was again made to submit to a strip search and visual body cavity search. After being in the Essex County jail for one day, he was released after the charges were dropped. The case reached the Supreme Court of the United States because of a split among the ten Federal Circuit Courts of Appeal that have considered the issue of the reasonableness of a blanket strip search policy under the Fourth Amendment as applied to prisoners who are admitted to the jail and who only have committed minor offenses. At oral argument before the Justices, Plaintiff Florence argued that a rule should be fashioned to protect minor offenders only – not alleged violent offenders who could be automatically strip-searched without a reasonable suspicion test. The Counties argued that a wide-ranging blanket rule, that does not call for the reasonable suspicion test, would be easier and more fair to the official running the jail, as well as safer for all those forced to stay in jails.
It is anticipated that the Supreme Court will issue a decision before next July.
Fri, 04 Nov 2011 20:52:00 +0000
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