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Articles Tagged with constitutional rights

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Friends:

I am happy to share with you that I have recently begun co-hosting a podcast called “See You In Court.” “See You In Court” is a podcast sponsored by the Georgia Civil Justice Foundation, on which I sit as a Board Member.  My co-host is Lester Tate, partner and owner of the law firm Akin & Tate in Cartersville, Georgia.  Lester is also, as I am, a Past President of the State Bar of Georgia and is also a Board Member of the Georgia Civil Justice Foundation.

“See You In Court” podcast is a joint project of the Georgia Civil Justice Foundation and the Georgia Institute of Technology School of Literature, Media and Communication. The Georgia Civil Justice System is a nonprofit foundation whose mission is to educate the public about the Georgia Civil Justice System and its value to the public in enforcing rights and holding negligent actors accountable for injuries they have caused.  The Georgia Institute of Technology School of  Literature, Media and Communication defines new models of intellectual inquiry and practice that bring diverse humanistic perspectives to bear on technological invention and innovation.  The School’s mission is to lead the region, the nation, and the world in researching and teaching the ways the humanities shape and are shaped by science and technology. Understanding technologies in their cultural contexts is fundamental to invention and innovation. The School’s diverse faculty and students assess and inform technological and scientific change by creating, analyzing, and critiquing a broad range of media forms and cultural practices.

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This has been some week. Our Georgia Community was in the grips of disbelief and shock due to the murder of Ahmaud Arbery in Glenn County, Georgia, hoping and praying that things could not get worse…and then they did. The murder of George Floyd in Minneapolis has electrified the Nation to protest for Equal Justice Under Law for African-Americans, which is overdue by about 200 years. Because of these recent murders of African American males, the term of art “excessive force” has, unfortunately, wormed its way into our daily lexicon, heard as frequently now as “Facebook” or “Twitter” or “Coronavirus” (remember that?).  So let’s look at what exactly is “excessive force,” how do you bring a lawsuit for “excessive force” and how difficult are they to be successful?

First, a civil action for “excessive force” by a police officer must be brought against the individual police officer, not the police department, pursuant to a Federal Statute, 42 U.S.C.A. § 1983. That statute states:

“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, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”

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I am struck today by the decision of the Wisconsin Supreme Court yesterday to rule that the Governor and the head of its Public Health Department did not have the authority to issue stay-at-home mandates during the Covid-19 pandemic. As the Governor of Wisconsin said, Wisconsin is now the “wild, wild west.” Chaos has already ensued in the less than 24 hours since the ruling, as predicted by Governor Tony Evers. Bars were packed last night in Wisconsin, with absolutely no social distancing (from the photos it looks like no distancing at all) and no masks being worn. World-leading scientists and epidemiologists predict this will necessarily cause a spike in Covid-19 cases and unnecessary suffering and deaths.

The first thing to note of this decision is that the case was brought by Republican Wisconsin Legislators against the Governor, so that essentially the Legislators were suing saying a bill they had passed was unconstitutional. Wait. What? How is that possible? They passed it. Surely, they can’t now file suit claiming the very thing they wrote, voted on and passed was actually unconstitutional from the get go. This turns the legislative process on its head.

The second thing to note is that this was a decision that ran along party lines in a very politicized state supreme court. The Wisconsin Supreme Court’s conservative-backed majority split in the 4-3 decision, with Chief Justice Patience Roggensack, Justice Daniel Kelly, who recently lost his bid for election, Justice Annette Ziegler, and Justice Rebecca Bradley voting to overturn Palm’s order. Conservative-backed Justice Brian Hagedorn joined the court’s two liberal-backed members, Justice Ann Walsh Bradley and Justice Rebecca Dallet, in dissent.  You may remember that Justice Kelly, a Republican, recently ran for reelection as a Republican and even had the President of the United States come to Wisconsin and campaign for him in a unabashed political statement. Justice Kelly lost to a Democrat, Jill Karofsky but, alas, that Democrat hasn’t taken her seat on the bench yet. Otherwise, there is no question this decision would have come out the other way given the fact that even one Conservative justice sided with the dissenters. This recent election, you may recall, was another politicized decision by the Wisconsin Supreme Court as it ruled that the election in April, during the height of the Coronvirus crisis, had to proceed as originally scheduled and that Wisconsin citizens had to vote in person. Undoubtedly, the Republican members of the Supreme Court thought this would hold voting down as surely folks wouldn’t want to risk their lives voting, of all things But surprise! It didn’t work, and the Liberal Democratic candidate beat the Republican candidate who POTUS personally endorsed. Karofsky credited her win to voters rising up and rejecting Republican efforts to suppress turnout. “People were willing to do that because they wanted their voices to be heard in this election,” she said. “A lot of times on election day we’re wringing our hands because we’re so upset about voter apathy. That wasn’t the problem on Tuesday. People wanted their voices heard.”

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“They treated him worse than a dog.”  That is how Kevin Williams, brother of Elliott Williams, described what correctional officers did to his brother at the Tulsa (Oklahoma) jail where Elliott was held for a week after being picked up by Tulsa police for behaving erratically at a hotel. Apparently, Elliott Williams was in the throws of a mental breakdown after his wife informed him she was leaving him.  Tulsa police picked him but never charged him with any crime, never finger-printed him, never set bond and never allowed him to call his family, despite repeated requests.  Mr. Williams told the guards he could not walked and felt he may have injured himself in his cell by hitting his head.  The guards thought Mr. Williams was joking, despite Mr. Williams’ lying naked on a blanket on the floor of his cell. He obviously could not move his lower extremities.  The hard-to-watch video shows the six days of agonizing torture Mr. Williams suffered at the hands of the jail guards.  I am warning you: before you watch the video, which is linked in The Frontier’s article about the case. It is nothing short of humiliating, degrading human torture by these guards. The video clearly shows the guards barely walking into Mr. Williams’ cell.  One places a cup of water on the floor by him.  Several times they slide boxes of food near him, which, of course, he can’t reach, open or eat because he is paralyzed. He does not drink anything or eat anything for six days while these jail guards watch him die. The only water he has for those horrific six days are a couple of drops that he is able to put in his mouth after he somehow was able to dip his fingers into a cup of water on the floor.  The video shows no attempt to give Mr. Williams any assistance at all, much less medical assistance to determine whether he was actually paralyzed, during those six long days. On the sixth day and the day of his death, the medical staff finally arrives, tests for reflexes and of course there are none because he is paralyzed and dead or dying. Only on the sixth day, after no medical help, no food, no water, does the jail’s medical staff attempt CPR on Mr. Williams, which of course does not work as he is dead.  Mr. Williams was allowed to die a most inhumane death conceivable, and his brother very aptly described it:  “He was treated worse than a dog.”

I have recently filed a lawsuit against Georgia State Prison for the attempted suicide of an inmate after he was found to be experiencing a psychotic break and in need of emergency psychiatric attention.  The prison’s idea of “emergency” psychiatric referral was an appointment with a psychiatrist five days later. Of course, my client, Nicholas, who was only 19 years old at the time, never made it to that appointment scheduled  five days later because less than 24 hours after being diagnosed with experiencing a psychotic break he attempted suicide by hanging himself with his bed sheet in his cell. His cellmate yelled and yelled for help. After a prison guard finally arrived at the cell, the guard saw him hanging but refused to get him down from the bed sheet noose. Instead, that guard radioed for assistance and the other guards, rather than helping Nicholas down from hanging, retrieved a camera to film him hanging. That video, as you can imagine, is graphic. Then the camera runs out of battery charge. So the guards leave Nicholas hanging and retrieve a second camera (I am NOT making this up) to continue filming him. Finally, the guards go into the cell to remove Nicholas and find that he is still alive. They begin CPR.  They are able to revive him, but due to the lack of oxygen for such a long time, he is left in a persistent minimally conscious state and suffered irreversible brain damage. He now requires 24 hour care in a nursing home. He cannot eat, he cannot speak and he cannot move by himself.  To say this case is tragic would be a massive understatement.

So, I have been immersing myself in jail and prison suicide cases and the applicable law.  Essentially, the only way to sue a jail or prison successfully on this type of constitutional rights violation is under a Federal statute, 42 U.S.C. § 1983.  Under this statute, the plaintiff must prove that the state actor (individual state or government employee) acted with “deliberate indifference” to the constitutional rights of the inmate. The determination as to whether a state actor acted with deliberate indifference in violation of either the Eighth or Fourteenth Amendment consists of an objective and subjective inquiry.  Hopper v. Montgomery Cty. Sheriff, 3:14-CV-158, 2017 WL 495511, at *12 (S.D. Ohio Feb. 6, 2017).  “Deliberate indifference requires the following: (1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than gross negligence.” Shuford v. Conway, 16-12128, 2016 WL 6820764, at 6 (11th Cir. Nov. 18, 2016). The plaintiff must show the constitutional right allegedly violated was “clearly established” at the time of the incident, so that an officer cannot claim as a defense that he “didn’t know” his treatment of an inmate violated the inmate’s constitutional rights.  “In this circuit, the law can be ‘clearly established’ for qualified immunity purposes only by decisions of the U.S. Supreme Court, Eleventh Circuit Court of Appeals, or the highest court of the state where the case arose.” Jenkins by Hall v. Talladega City Bd. of Educ., 115 F.3d 821, 826 n.4 (11th Cir. 1997). This inquiry is limited to the law at the time of the incident, as “an official could not be reasonably expected to anticipate subsequent legal developments.”  A plaintiff can show the constitutional right violated was clearly established in three different ways: (1) case law with indistinguishable facts clearly establishing the constitutional right; (2) a broad statement of principle within the Constitution, statute, or case law that clearly establishes a constitutional right; or (3) conduct so egregious that a constitutional right was clearly violated, even in the total absence of case law. Lewis v. City of W. Palm Beach, 561 F.3d 1288, 1291–92 (11th Cir. 2009); see also Hope v. Pelzer, 536 U.S. 730, 743, 122 S.Ct. 2508, 2517, 153 L.Ed.2d 666 (2002) (noting that the reasoning of this Circuit’s holdings, even if a case did not involve the same precise facts, sends a sufficient message to reasonable officers in this Circuit for the purposes of the “clearly established analysis”).

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