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Suicide Case to be Argued Tomorrow Before the Georgia Supreme Court

February 6, 2017 | Robin Frazer Clark

As many of you know, I often watch oral arguments in the Georgia Supreme Court via its livestreaming capability on its website. I encourage you to watch, as well. If you are reading my blog it means you must be interested in Georgia law, and what better way to gain some insight than to watch arguments before the State’s highest court? Having available online the live streaming of oral arguments really is a public service to Georgia citizens and a nod to open and transparent government from the Judicial Branch of Georgia government.

I wanted to let you know that tomorrow, February 7, 2016, an interesting and very sad case will be argued before the Georgia Supreme Court, City of Richmond, GA v. Maia. I blogged about the Maia case when it was before the Georgia Court of Appeals. My blog then asked “Who is legally responsible for suicide?” Suicide and suicide prevention has been an interest of mine since one of my dear friends committed suicide in 2012, when I was President of the State Bar of Georgia. His suicide led me to form the State Bar’s Suicide Prevention Campaign “How To Save a Life.” The issue of who is to blame for suicide is squarely before the Georgia Supreme Court now. The City of Richmond argues you can never blame a third party for someone’s suicide because suicide is also an independent, intervening act. This is based on years of rather old Georgia case law. But we know now, after suicide prevention has become more of the public conversation and as open discussion about suicide is helping to remove the stigma associated with suicide, that sometimes it seems suicide can often be traced directly back to bullying of the victim by third parties. It will be an interesting case to watch. My good friend Carl Varnedoe will be arguing for the Plaintiff and my good friend Pat O’Connor will be arguing for the City of Richmond. Below is the Supreme Court’s case summary. I’ll keep you posted, as promised.

Tuesday, February 7, 2017 10:00 A.M. Session

Death in a Georgia Jail: Does Anyone Have Any Responsibility Under Georgia Law?

July 15, 2016 | Robin Frazer Clark

Two interesting but diametrically opposed cases came out last month dealing with deaths of prisoners in Georgia jails. One came out in favor of the prisoner who was killed. The other came out in favor of the police department. Why? I thought it would be interesting to take a look and compare the two.

Jail deaths occur rather frequently. As I discuss “jail deaths” in this blog I am excluding death by natural causes, e.g., disease or old age and I am excluding for now wrongful death of an inmate caused by inadequate medical care in prison (which also is very frequent). I am referring to jail death proximately caused by another person, whether that other person is another inmate or a custodial officer. The nationwide average of jail deaths is 983. The annual average of jail deaths in Georgia is 46. Some of these deaths account for an increased fervor across the nation for criminal justice reform.

But how do the courts treat wrongful jail deaths? Two Georgia cases show a large disparity in court treatment even in the face of what are clearly egregious facts. It is notoriously difficult to sue successfully a prison warden or any state deputies, sheriffs or police officers for their conduct related to the death of an inmate. These suits are frequently brought but infrequently won. Why? Because the burden of proof for the family or estate administrator who would bring a wrongful death suit on behalf of a prisoner killed while incarcerated is astronomically high. So high it is seldom met. A plaintiff in a prisoner death case must allege violation of the prisoner’s 8th Amendment Constitutional rights, which is the Amendment that prevents the government from enacting cruel and unusual punishment on a prisoner. Beyond just restraining prison officials from inflicting “cruel and unusual punishments” upon inmates, the 8th Amendment also imposes duties on these officials to take reasonable measures to guarantee the safety of the inmates. But plaintiffs must show the prison officials acted with “deliberate indifference” to the prisoner’s constitutional rights, which is a pretty high mark to meet. It is just slightly shy of intentional conduct. “Deliberate indifference” in the context of a failure to prevent harm has a subjective and an objective component, i.e., the plaintiff must prove the prison official actually knew an inmate faced a substantial risk of harm and that the defendant disregarded that known risk by failing to respond to it in an objectively reasonable manner.

Do I Have a Case Against a Police Officer for Excessive Force?

April 3, 2015 | Robin Frazer Clark

The recent news about a young veteran who had mental health problems and was found running naked in his apartment complex, who the police shot, has the attention of many Georgia residents, especially me. You probably have read or seen the story on the news. Anthony Hill was a 27 year old U.S. Veteran who had known mental health problems, including bipolar disorder. He was found running naked around his apartment complex knocking on doors. He had done no harm to anyone. He was obviously unarmed as he was naked! Witnesses indicate Mr. Hill was about 180 feet away from the DeKalb County police officer who ultimately shot him when the officer first encountered Mr. Hill. The DeKalb County police officer, like every other police officer, was armed with a taser. For unknown reasons, the officer pulled his gun instead and shot Mr. Hill. Mr. Hill died.

As far as I have seen in news reports, Mr. Hill had violated no law (except maybe public decency?), had harmed no one, had not touched the police officer, had not resisted arrest…in short had done absolutely nothing to justify being killed at the hands of a DeKalb County police officer. Is this excessive force? Absolutely! Is it a crime? Yes, I think it is. This conduct, shooting a totally innocent, obviously unarmed man rises to the level of a crime, manslaughter perhaps, and the DeKalb County District Attorney’s Office should seek an indictment. And if you don’t think for a minute that Mr. Hill could have been you or your loved one, you need to think again.

What is going on with police forces lately? There seems to have been a rash of unjustified shootings of innocent, unarmed people. Some of these shootings are race-related, for sure. But there doesn’t seem (at least right now) to be a racial issue involved with the shooting of Mr. Hill. What was involved was the patently obvious lack of appropriate training of police officers on how to deal with a person who is exhibiting signs of a psychotic break or mental instability.

Can I Sue the County?

September 9, 2014 | Robin Frazer Clark

Let’s say you have been injured in a car wreck because of negligent maintenance of a right of way owned by the County. Can you sue the County for your injuries?

Of course, I have tried to teach my readers the short answer is always yes, you can sue anybody for anything. The real question then is if you sue the County, will your lawsuit be successful? The answer there, unfortunately, is probably not.

Counties in Georgia enjoy wide immunity from being held accountable through lawsuits. This is called “‘sovereign immunity,” which simply means you can’t sue the King. Were your car wreck to have occurred on a State-owned right-of-way, maintained by the State of Georgia, you would have a viable lawsuit against the State of Georgia under a statute known as “The Georgia Tort Claims Act,” O.C.G.A. Section 50-21-20 through -37. The State of Georgia, in passing “The Georgia Tort Claims Act,” recognized the inequity of a situation that would allow a Georgia citizen to be able to sue and recover from a private individual or corporation if they were negligent but not from the State of Georgia if it, acting through its employees, were negligent. The trade-off agreed in the statute for doing away with sovereign immunity for the State is an individual employee may not be personally sued (so it protects State of Georgia employees from litigation) and recovery is capped (regardless of injury) at $1 Million. This seems like an inherently reasonable trade-off…good for all citizens of the State of Georgia.