This is the third and final installment of our 3 week discussion on Civil Rights Litigation under 42 U.S.C. 1983.

Governmental Immunities and Limitations to Liability

1.    Qualified immunity:  Even if your plaintiff’s constitutional rights were violated, a state actor may be entitled to “qualified immunity” if his actions did not violate a “clearly established” constitutional right.

a.   Example:  Husband, wife, son, and two dogs are travelling down the highway in the family station wagon.  They stop for gas, and Husband leaves his wallet on top of the car when he drives off.  Motorist calls police to report a car going very fast with cash flying all over the place.  Police stop car, make everyone exit at gunpoint, cuff everyone, and shoot one of the dogs when it jumps out of the window.  Result:  qualified immunity because officers’ actions were reasonable, for the most part.  But officers left the family cuffed for several minutes after realizing no criminal conduct had occurred.  That was unreasonable, so no qualified immunity on that part of the claim.  Smoak v. Hall, 460 F.3d 768 (6th Cir. 2008).

b.    Qualified immunity is immunity not just from liability, but from the burden of litigation.  When a court denies a motion to dismiss (or for summary judgment) that raises qualified immunity, a defendant may immediately appeal.

i.    The defendant must concede the facts as articulated by the plaintiff on interlocutory appeal.  Meals v. City of Memphis, 493 F.3d 720 (6th Cir. 2007).
ii.    The Ohio Supreme Court recently recognized the right of defendants to an interlocutory appeal on qualified immunity when 1983 claims are brought in state courts.  Summerville v. Forest Park, — N.E.2d —, 2010-Ohio-6280.

2.    Absolute immunity

a.    Judges
b.    Generally, prosecutors
c.    States, under the 11th Amendment.  Naming a state employee in his “official capacity” is the same as naming the state itself.  State employees must be sued in their “individual capacity.”

E.  What Do I Win?

1.  For the client:  compensatory and punitive damages.

2.  For the attorney:  Attorney’s fees, under 42 U.S.C. 1988.  However, you must track your time contemporaneously.  A post-trial fee petition may result in its own mini-litigation, with the successful attorney being deposed to justify the reasonableness of the hours he claims.

This outline was adapted from a lecture given at the Lawyers Club of Cincinnati by Paul M. Laufman of Laufman & Napolitano. If you have any questions regarding Civil Rights litigation please check contact us today.

This is Part II of our continued discussion of Civil Right Litigation under 42 U.S.C. 1983 as presented at the Lawyers Club of Cincinnati by Paul M. Laufman of Laufman & Napolitano, LLC.

Once I’ve got a client, who do I sue?

1.    Individual liability under section 1983

a.    An individual sued must have actually done something in order to be liable.  Respondeat superior liability is not available under 1983.
b.    A state actor may be indemnified by the government agency for whom he works.  When a prison guard is sued, the prison guard doesn’t pay the damages, the State of Ohio does.

i.    Plaintiff is not allowed to tell the jury this at trial.  (Government indemnification is treated like insurance:  the trial operates in a vacuum that assumes it doesn’t exist.)
ii.    The exception:  If a public employee’s conduct is so egregious, his employer may fire him and then claim that his conduct was outside the scope of his employment.  In that situation, the government may refuse to indemnify him—and an unemployed former government employee may not have sufficient assets to satisfy a judgment.

2.    Suing the government under 1983

a.    Just as an individual cannot be liable just because he supervised someone who violated your client’s rights, neither can a political subdivision.
b.    Policy and practice claims:  the government sued must have a policy, practice, or custom that is the “moving force” behind the deprivation of your client’s constitutional rights.  This is called a “Monell claim.”  Monell v. City of New York Dept. of Social Services, 436 U.S. 658 (1978).

I’ve got a client.  I’ve found a defendant.  Now what?

1.      Investigate the claim.  In Ohio, many records in government care are subject to disclosure under the Public Records Act, R.C. 149.43.  The statute requires production in a reasonable time (depending on the request, one to two weeks).  Attorney fees are available against public records custodians who wrongly fail to disclosure public records on demand.

2.      Draft a complaint.  But be careful:  the federal “notice pleading” standard is more burdensome than it used to be.  Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009).

3.    Gather enough evidence to survive summary judgment.  But remember that even your client’s affidavit is enough to create a genuine issue of material fact.  Harris v. J.B. Robinson Jewelers, 627 F.3d 235 (6th Cir. 2010).

Join us again next week as we continue our civil rights litigation discussion.

The following is an excerpt from a presentation at the Lawyers Club of Cincinnati given by Paul M. Laufman of Laufman & Napolitano. We will be sharing other excerpts from this presentation over the next few weeks.

Part 1: Nuts and Bolts of Section 1983 Litigation

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .

Section 1983 applies to people or entities acting under “color of state law,” commonly called “state actors.”  For purposes of section 1983, who is a state actor?

• Most government employees are state actors.  Prison guards, police officers, firefighters, and elected officials are all state actors.

• Political subdivisions of a state—cities, townships, villages, etc.—are state actors.

• Private citizens or entities can, in some circumstances, be state actors who are liable under section 1983.  For a private citizen to be deemed a state actor, one of four tests must be satisfied:

i.    The public function test:  Entity exercises powers traditionally reserved to the State (or political subdivision of the State)
ii.    The state compulsion test:  A State has “exercised such coercive power or has provided such significant encouragement . . . that the choice must in law be deemed to be that of the State.”  Blum v. Yaretsky, 457 U.S. 991, 1004 (1982).
iii.    The nexus test:  A symbiotic relationship or “nexus” exists between the entity and the State such that the action of the entity is really that of the State.
iv.    The entwinement test:  Either the entity is “entwined” in governmental policies or the State is “entwined” in the management of the entity.

• Examples of private citizens who are state actors

i.   Charter schools.  Riester v. Riverside Community School, 257 F. Supp. 2d 968 (S.D. Ohio 2002).
ii.  Private prison guards.  Richardson v. McKnight, 521 U.S. 399 (1997).
iii. An off-duty sheriff’s deputy working as a security guard in a department store.  Chapman v. Higbee Co., 319 F.3d 825 (6th Cir. 2003) (en banc).

• Federal employees are not amenable to suit under 42 U.S.C. 1983.  Instead, a plaintiff must file a “Bivens action” against a federal employee.  Most of our discussion of 1983 claims also applies to Bivens actions.

What constitutes a violation of 42 U.S.C. 1983?

• Section 1983 does not itself confer any rights.  Instead, the statute provides a remedy to recover for the violation of rights.

• Examples of basic 1983 claims:

i.    First Amendment (typically free speech violations)
ii.    Fourth Amendment (excessive force claims against police officers; unreasonable searches or seizures)
iii.    Eighth Amendment (prisoner civil rights claims)

• Fourteenth Amendment claims

i.    The Fourteenth Amendment has been interpreted to have two components:  procedural due process and substantive due process.
ii.    Procedural due process:  Plaintiff must show deprivation of property under color of state law.

1.    Key is showing the property interest, which is often created as a function of state law.  Brotherton v. City of Cleveland, 923 F.3d 477 (6th Cir. 1991)  (Ohio citizens have property interest in corneas of deceased family members).
2.    Not all statutes create a cognizable property interest.  City of Castle Rock v. Gonzales, 545 U.S. 748 (2005) (no property interest in enforcement of temporary protection orders).

iii.    Substantive due process:  A substantive due process claim is one that alleges a deprivation of some liberty interest, rather than a property interest.  Examples of interests protected by substantive due process:

1.    Interests so rooted in the traditions and conscience of the national as to be fundamental:

a.    Reasonable care and safety while in government custody.  Youngberg v. Romeo, 457 U.S. 307 (1982).
b.    Bodily integrity.  Rochin v. California, 342 U.S. 165 (1952).

2.    Freedom from government actions that “shock the conscience.”
3.    Substantive due process claims can invoke the “state-created danger” doctrine.  Plaintiff can pursue damages if he is injured as a result of an action taken by a state actor that places him in danger.  Examples:

a.    Police interrogate an emotionally-disturbed, allegedly innocent young man and force him to write an apology to the victim.  They release him.  He goes home and commits suicide.  Sloane v. Kanawha County Sheriff Dept., 342 F. Supp. 2d 545 (S.D. W. Va. 2004).
b.    Employee calls police and anonymously reports co-employee’s theft.  He subsequently comes forward, and is ensured by police of anonymity.  Police release recording of call to the thief, who kills the employee.  Monfils v. Taylor, 165 F.3d 511 (7th Cir. 1998).

4.    Claims that fall outside of state-created danger:

a.    Police fail to serve a temporary protection order, and protectee of the order is shot.  Jones v. Union County, 296 F.3d 417 (6th Cir. 2002).

Check out our blog next week for a continuation of our discussion about Civil Rights Litigation under 42 U.S.C. 1983

If your child is arrested on allegations of delinquency or criminal conduct in Ohio, there’s a strong possibility they’ll be awaiting for their day in court behind bars.

A recent report released by the Ohio office of the Children’s Defense Fund (CDF) found the youth detainment rate in Ohio to be higher than most states.

The majority of youth in Ohio’s juvenile detention centers are placed there for non-violent offenses or non-technical violations; with many of these detainees posing no risk to community safety, according to the CDF report.

Research shows youth placed in detention are more likely to drop out of high school, use drugs and alcohol and commit future crimes. These youth are also more likely to be unemployed and have trouble forming stable relationships.

The report also includes information from a 2003 assessment that found many of the Ohio juveniles placed in detention were done so without access to legal counsel. Those youth appointed legal counsel often times received inadequate representation, as attorneys weren’t assigned far enough in advance to properly prepare for pre-trial hearings.

While work on revamping portions of the juvenile criminal law in Ohio is underway, the state’s track record for detaining youth is still a major concern voiced by organizations such as the CDF and the American Civil Liberties Union (ACLU).

The growing view that adolescents engaging in unlawful activity should be held more accountable for their actions makes the long-term consequences of a juvenile criminal conviction potentially more damaging.
If you are a parent of a minor that has been accused of a crime, hiring an attorney with a strong understanding of Ohio juvenile law is extremely important to ensure the rights of your child are protected.

There are three methods in which a couple can terminate their marriage in Ohio: Divorce, dissolution and annulment.

A divorce is initiated by one of the involved parties through the filing of a complaint that states the reasons for terminating the marriage. In response, the other party involved in the proceedings can file a counterclaim including their reasons for the divorce.

In order to obtain a divorce in Ohio, the person filing the report must be a state resident for at least six months before submission, and a resident in the county where the complaint was filed for at least 90 days. If the latter condition is not met, 90 days of residency by the defendant spouse in the county where the complaint is filed is an acceptable replacement

Dissolution is a joint petition a couple files with the court. Dissolution has the same legal effect as a contested divorce, but is usually faster, cheaper and involves less conflict between the two parties. Before filing the petition, both parties must enter into a “separation agreement” to resolve any pertinent matters such as finances and property. If a couple cannot come to terms on a separation agreement, they must abandon their pursuit of filing dissolution and absolve their marriage through the more expensive method of contested divorce.

An annulment is a legal ruling issued by the court invalidating the marriage due to some defect present before the union was in effect. Unlike a divorce or dissolution that terminates a marriage, an annulment completely removes the legality of the marital union as if it had never taken place. Grounds for annulment might include fraud, mental incompetence or underage status of one of the involved parties.

Contact a divorce attorney in your area for more information on which option is best for you.

Every state has their own laws for those alleged to be driving under the influence of alcohol. The common name for this charge is “Driving Under the Influence” (DUI). But in Ohio it is known as “Operating a Vehicle While Impaired” (OVI).  Although still commonly referred to as DUI, the Ohio legislature changed the name to OVI in 2003 to better reflect the widened scope of the law, which now specifically includes drug use.

Under current Ohio law, an OVI charge requires that a driver actually operate the vehicle while impaired.  Operation is defined as causing the movement of vehicle.  This is a change from the law prior to 2003 when a driver could receive a DUI for simply sitting in a car with the keys within the driver’s reach.  It is still an offense, however, to sit behind the wheel of a vehicle while impaired.  At the same time the OVI offense was clarified, the Ohio legislature created the new offense of Physical Control of a Motor Vehicle While Impaired (Physical Control).  The idea behind a Physical Control offense is that a vehicle is a dangerous instrumentality much like a firearm which should not be possessed by an impaired person.  While similar to an OVI in many ways, a Physical Control offense does not carry many of the mandatory penalties and license suspensions required by an OVI conviction.

The interplay between the offenses of OVI and Physical Control can lead to interesting issues in defending these charges.  In a “typical” OVI situation, a citizen who is observed by an officer actually driving a vehicle is certain to be charged with OVI.  But consider the situation of a citizen who exits a bar and decides he should not drive.  He sits behind the wheel of the car and waits to feel safe to drive.  That citizen would likely be charged with Physical Control.  But some drivers are found stopped on the side of the road.  This presents a difficult choice for the officer who never observed any impaired driving.  Was the driver impaired while actually driving or did he or she stop because they were fatigued or felt the effects of alcohol increasing?  Officers will often charge an OVI in these situations which arguably should have been charged as a Physical Control.  Many clients have been found not guilty of such an OVI offense because the officer chose to charge an OVI as opposed to a simpler offense of Physical Control.

Ohioans should be aware that drug and alcohol use can still have legal ramifications even if you decide not to drive.  While the rules vary slightly from jurisdiction to jurisdiction, Ohio does not have a state law making public intoxication a crime.  Instead, public intoxication in Ohio is typically prosecuted as Disorderly Conduct which requires an individual to display offensive, dangerous, or turbulent behavior whether under the influence of alcohol or any other intoxicating substance or not.  Just being under the influence is not enough to support a charge for Disorderly Conduct.

Bail is a monetary fee that allows a person charged with a crime to be released from jail pending the outcome of their case. In general, non-serious crimes often allow defendants to post bail immediately. However, defendants charged with more serious crimes are detained until a bail hearing is held.

The cost and conditions of bail (also commonly referred to as “bond”) can vary depending on a wide range of factors. Some of those factors include the severity of the alleged crime, the defendant’s criminal history, and ties the defendant has to the community. Once an amount and the terms of bail are determined, the defendant (or someone on that person’s behalf) may pay the bail (or “post the bond”). Assuming the defendant follows all of the terms of bail, the posted amount will be returned following the completion of the case.

To discuss your specific circumstance, contact one of the experienced criminal defense attorneys at Laufman & Napolitano.

In Ohio, any employee injured on the job is eligible to file a workers’ compensation claim. And it doesn’t matter where you are, whether the injury occurs at the worksite or while running an errand for the boss, so long as you are in the “scope of employment” at the time.

The truth is that many workers’ compensation claims are approved.  If your claim is approved, all related physician-prescribed medical costs are covered under the claim.  In addition, workers’ compensation can provide wage reimbursement to employees whose injuries temporarily prevent them from working.

One key to approval is being thorough and honest with your doctor about any symptoms suffered from the injury.  Being prompt in reporting the injury and open with your doctor increases the chances your workers’ compensation claim will be approved.  It’s important not to shrug off what may seem like normal aches and pains following an injury on the job.  Insufficient medical documentation is one of the main reasons for claim denials.  Failure to fully disclose and document the impact of a job-related injury not only puts your health at risk, but could also affect your wallet if your workers’ compensation claim is denied.

If your claim is denied, all hope is not lost. Hiring an attorney concentrating in Ohio workers’ compensation law may assist you to pursue an appeal of your claim.  Working with an attorney might also open up other avenues of compensation, especially in situations where work-related injuries are longer term or cause permanent disability.

No matter how mundane the symptoms might appear, the best plan of action for those unfortunate to experience an injury on the job is to report it. You never know if that minor nagging shoulder pain could turn into a major medical problem down the road.

It is time for Southwest Ohio to get on board with open discovery.

As stated in this article (http://blog.cleveland.com/metro/2009/02/prosecutor_bill_mason_to_offer.html), prosecutors all over the state are respecting the rights of the accused in their counties and turning over material evidence to defense attorneys early in litigation.  In the process, defendants’ rights are being protected, costs are lowered, and societal trust in the system rises.

In these difficult economic times, getting the most value for your expense is more important.  Keep the following in mind when utilizing legal services to ensure you receive quality representation at good value.

Be prepared.  Take the time to become acquainted with the circumstances of your case.  The more knowledgeable you are about your case, the better able you will be to work with your lawyer to achieve your objectives.

Read the mail.  Letters, copies of documents, and emails are sent by your lawyer to keep you informed about developments in your case.  Paying attention to these will help you to stay informed and avoid the need for unnecessary calls to catch-up on events.

Stay in touch.  Changes in your circumstances can affect your case in ways you may not expect.  Be certain to keep your lawyer well informed of any developments and always be sure to update the office with your current address and phone numbers.