Trial Attorney Blog

Under the Eleventh Amendment to the United States, a state law enforcement official typically cannot be sued in his official capacity for acts done within the scope of his official duties. The reason is the Eleventh Amendment which prohibits lawsuits against a state or “state actors” without state consent. This constitutional prohibition against such lawsuits typically means that if someone has a civil rights claim they wish to assert in court against a law enforcement official then they might need to consider doing so in state court as opposed to federal court. Obviously, filing a lawsuit in a state court where the law enforcement agency exists is a difficult proposition because the lawsuit has to be filed in the same jurisdiction where the law enforcement authorities serve as bailiffs to the court and otherwise have considerable control over the jurisdiction implicated. To get around the Eleventh Amendment, one has to establish that the individual was either not a “state actor” or was acting outside the scope of his or her authority. Another exception to the Eleventh Amendment is claims brought against law enforcement officials not in their official capacity but rather in their individual capacity.
An officer acting within the scope of his discretionary authority who does not violate clear constitutional precedent concerning his/her actions may be difficult to hold liable in federal court. While it may be difficult, it is not impossible. Again, the cases are always factually specific and the legal issues turn on the facts. Nonetheless, in considering where to file a lawsuit against a law enforcement official in the context of a potential civil rights claim, one must be mindful of the Eleventh Amendment and the various restrictions it imposes upon litigants seeking redress for civil rights violations.

When a law enforcement officer abuses his authority and uses excessive force in an arrest or detention of a suspect, legally, the victim of such excessive force faces some very significant legal hurdles in seeking redress for any injuries caused by the excessive force. What we refer to here is known as the doctrine of qualified immunity. Simply stated, as long as a law enforcement official is acting within the scope of his discretionary authority, he/she essentially has immunity for his acts unless he clearly violates established legal precedent concerning the propriety of his/her conduct. Whether such a violation is proven is determined by an objective analysis of the facts from the standpoint of a reasonable officer. If a reasonable officer would have objectively used the same degree of force, then there is no legal liability, even if someone is shot and killed.
There are many complex variables that one must consider in handling an excessive force case against a police officer. Whether the doctrine of qualified immunity does or does not apply is a factually specific inquiry. While the hurdle is high for a victim of excessive force to overcome, it is not an impossible burden to meet. Even if an officer is acting within the scope of his authority and is exercising discretion, if his actions are objectively unreasonable and result in unreasonable and unnecessary injury to a third party, legal claims can be brought and can be sustained.
Any person who claims to be a victim of the excessive use of force should confer with counsel as soon as possible. The issues are, again, factually specific and legally complex which necessitates a in-depth investigation of what the facts were at the time of the use of force. This too can be a difficult undertaking because the police are likely to provide a version of events most favorable to their position and the victim oftentimes is not believed simply because he/she is the alleged criminal suspect in many of these cases: All the more reason for counsel to be conferred with as soon as possible in the context of any of these cases.

As indicated in our prior blogs on this subject, when a claim is brought under the Federal Tort Claims Act, it must be initiated via the filing of an administrative claim. The administrative claim should not be filled out in the most sparse form imaginable rather all pertinent details of the claim should be provided. This includes providing all relevant documentation which supports the claim. Indeed, it is somewhat analogous to submitting a settlement package to an insurance company. All information concerning when and where the claim arose, what the claimed negligence or cause of action is based upon, what damages were incurred and how they were calculated and what documentary proof exists to support all of the above. The administrative claim therefore is not simply the filing of the Form 95 but includes filing all pertinent documentation including photographs, medical bills, medical records and any all other supporting documentation. While one can submit a claim without supporting documentation technically this is not a wise course to pursue because the government is not likely to ever engage in any realistic appraisal of such a claim. The more support that is provided the more likely it is that the government may attempt to resolve the claim on an administrative basis which will protect the claimant from having to proceed with litigation with the United States in Federal District Court.
A key part of the administrative claim is to make sure that the amount of money damages are set forth for a “sum certain” that being a definite amount. The claim cannot assert damages in excess of a specified sum but must actually set forth a specific sum. Thus, if one asserts damages, hypothetically in the amount of $75,000.00, then those are the only damages one can seek if the claim is denied and a lawsuit becomes necessary.

Mandatory arbitration clauses are contained in almost every consumer transaction agreement, and financial and employment contracts. We have previously written about the fact that these mandatory arbitration clauses benefit only big business. As a result of the unfair nature of these clauses, there has been a movement within the United States to prohibit their inclusion in many consumer, financial, and employment contracts.

The increasingly conservative United States Supreme Court has recently been upholding a wide range of mandatory arbitration clauses. Just recently, the Supreme Court agreed to decide during the next term whether a class-action ban in a cell phone arbitration agreement is unconscionable. This is one of the most controversial issues in arbitration.

The Supreme Court has agreed to hear a steady stream of arbitration cases during the past decade or so. The decisions have generally been pro-arbitration., even though lower courts appear to be increasingly skeptical of claims that arbitrations offer greater efficiency and lessen costs of court litigation.

Last week we read about what has become an all too familiar pattern, more police chases equal more deaths. In one case in Los Angeles a six year old was killed when the police were chasing suspects who were believed to have been involved in a drug transaction earlier. The death penalty was imposed on this six year old girl in order to catch a suspected drug user. Was the price worth it? Also in Los Angeles, a motorcycle officer was killed during a pursuit when he lost control of the motorcycle. In a police chase in Jacksonville, two police officers and a suspect were hospitalized with serious injuries. These were three separate incidents which occurred on June 10. On the same day there was an article which appeared in the newspaper in Kentucky about another innocent victim of a police chase. In that case, the police were apparently chasing a suspect in a stolen vehicle. During the chase, the suspect lost control and ran into the victim’s car, which incident left three children without a father and a wife without her husband. In the Kentucky case, a father of three was killed because the police felt it was more important to the public safety to catch someone driving a stolen car than it was to protect the lives of innocent motorists who might be endangered by the pursuit.
We have seen these kinds of articles over and over and over again. It is very distressing to read about the carnage caused by these chases. We have never advocated that police chases should be terminated. When the suspect being pursued is violent, has raped someone, murdered someone, or is known to represent a clear danger to the public, there is no alternative, the suspect must be chased and should be apprehended, if possible, with due regard for the safety of the motoring public. However, when non-violent offenders are being chased, the cost to the innocent members of the motoring public is simply too great. We should not impose the death penalty on innocent people in order to capture non-violent offenders. Let the suspects go rather than kill the innocent.

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Police chases very often end in tragic results. Our Atlanta attorneys have handled many such cases in Georgia which have resulted in the loss of innocent lives while law enforcement officers chased suspects for minor offenses.

Despite the carnage which these chases cause and the pain and grief inflicted upon innocent victims, lawmakers continue to make it more difficult for innocent victims to receive compensation for losses. These restrictions also have the effect of making it easier for law enforcement officers to engage in dangerous chases knowing that they will not be held responsible for reckless actions.

In fact, these chases have become TV entertainment with the advent of cameras in law enforcement cruisers. These TV shows almost always show dangerous chases in which the criminals are caught. What they do not show are the many chases which result in death and injury to innocent victims.

Under the FTCA, a plaintiff must first submit an administrative claim to the responsible federal agency prior to the initiation of a lawsuit. The courts have held that the filing of such a claim is a jurisdictional requirement meaning that before the United States government can be sued, a written claim must first be made to the responsible federal agency which the claimant contends is liable for their damages. Many federal agencies have their own regulations governing the filing of such claims but in most cases they are identical to regulations issued by the United States Department of Justice. The usual standard Form 95 Claim Form is that which should be used. It can be located via a Google search and sets forth what information should be provided to the government when a claim is filed.

The time for filing an administrative claim is two (2) years from the date of the accident. Once the administrative claim is filed, the plaintiff must wait for the agency to reject the claim or allow six (6) months to pass before filing suit. The passage of six (6) months without agency rejection may be treated as a denial under the law. In the event that a lawsuit is initiated before the filing of an administrative claim or before the rejection period has expired, the lawsuit can be dismissed for lack of jurisdiction.

Once an agency’s six (6) month rejection period has expired, suit must be brought within a subsequent six (6) month interval or if the agency actively rejects the claim an action must be commenced within six (6) months of the date of the agency’s rejection letter. If a suit is brought more that six (6) months after an agency’s denial of the claim, it could be potentially barred by the statute of limitations.

Many Georgia drivers can expect to receive recall notices for vehicles manufactured by General Motors Corp., due to a dangerous defect which can cause the vehicle to catch on fire. In one of the largest recalls of the year, General Motors announced Tuesday that it was recalling almost 1.5 million vehicles because it cannot fix a defect in the system that squirts heated cleaning fluid on the windshield.

The recall covers many vehicles manufactured during the 2006 to 2009 model year. Since GM is unable to offer a fix for the defect, it will disable the heating mechanism and pay each owner $100 per vehicle.

It is estimated that the recall will force GM to pay out as much as $150 million.

Atlanta, and other metropolitan areas in the state of Georgia have seen a rapid expansion in the numbers of same-day surgery centers. Yesterday, the Journal of the American Medical Association published an article suggesting that lack of infection practices are common in the nations more than 5000 outpatient surgery centers.

The study was prompted by a hepatitis C outbreak in Las Vegas. This outbreak was caused by unsafe injection practices at two outpatient surgery centers.

Failure to wash hands, wear gloves and clean blood glucose meters were among the reported problems found by the study. The study also found that many outpatient centers reuse devices meant to be used only by one person or dipped into single dose medicine vials for multiple patients.

When it comes to torts committed by the government and/or its employees, the beginning and ending place for any analysis is the Federal Tort Claims Act (FTCA). See 28 U.S.C. § 1346. The Federal Tort Claims Act provides a limited waiver of sovereign immunity and allows for money damages against the government for damages, loss of property, personal injury or death. In order to recover under the FTCA, one must show that the damages claimed resulted from a wrongful or negligent act of a government employee acting within the scope of his employment under circumstances where the United States, if a private person, would be liable to the injured person in accordance with the law of the place where the act or omission occurred. See 28 U.S.C. § 1346(b). As we will address in subsequent entries on this subject, there are potential land minds for those who would seek to recover under the Federal Tort Claims Act but who are not familiar with its provisions. The purpose of these blogs therefore will be to provide some general guidance as to how one should go about perfecting a tort claim against the United States of America. In future blogs, we will address the key steps that must be taken in order to do so.