Employers of immunocompromised employees should tread carefully during the COVID-19 pandemic

Photo by Anna Shvets on Pexels.com

By Trey Ross, M.Ed., Esq.

Question: I have an employee with a compromised immune system which places her at a higher risk of death if she contracts COVID-19. However, I’d like all of my employees to begin working in-person at the office. Can I fire an employee with a compromised immune system if she refuses to appear at work in-person?

Answer: Maybe not. A person with a compromised immune system will generally qualify as person with a disability as defined by the Americans with Disabilities Act of 1990 (hereafter, “the ADA” or “the act”). With that in mind, your obligations under the ADA continue during the COVID-19 pandemic.

      The ADA defines a disability to include “a physical or mental impairment that substantially limits one or more major life activities of such individual…”.[1] Further, the act makes clear that “a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system.”[2]

      Thus, all employers should be on notice that employees with compromised immune systems are indeed within a protected class of workers.

      Still, the ADA and the EEOC recognize that there are exceptions which may allow the employer to consider termination as a last resort. However, many legal factors must be thought through (e.g., Are there reasonable accommodations which can be made for the disabled employee?). These legal factors are case-specific and details about the nature of work can result in different outcomes for different employees/employers. To illustrate, allowing an immunocompromised school teacher to instruct students online from home can be a reasonable accommodation and the ADA “might require an employer” to allow the teacher to instruct students online to avoid violating the act.[3] While on the other hand, it may create an undue hardship for the employer to allow an immunocompromised restaurant chef to work from home.

     To be clear, the facts of your case should be examined and discussed with your attorney before you can know with reasonable certainty whether termination will result in violation of the act.

      If you’re an employer with questions about the rights of your company and your employees, we encourage you to contact Attorney Trey Ross or any lawyer with experience in employment law and/or employment litigation.  

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[1] 42 U.S.C. § 12102(1) (United States Code (2020 Edition)).

[2] Id.

[3] See e.g., U.S. Equal Emp’t Opportunity Comm’n, Work at Home/Telework as a Reasonable Accommodation (Dec. 13, 2020, 11:05 PM), https://www.eeoc.gov/laws/guidance/work-hometelework-reasonable-accommodation (providing “the ADA’s reasonable accommodation obligation…might require an employer to…modify its telework program for someone with a disability who needs to work at home).

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Can we sue our way to safety from gun violence?

By Trey Ross, M.Ed., Esq.

Question:

I’m a member of an organization in Georgia which is interested in gun reform. I heard about a recent case in Connecticut which suggests that gun manufacturers can be sued for harm caused by the guns they make and sell. If that’s the case, can’t we sue gun manufacturers every time a criminal shoots someone in Atlanta? Can we sue gun manufactures and force them to make guns less dangerous to citizens, school children, and law enforcement officers who are subject to being shot by criminals and psychopaths?

Brief answer:

Probably not. However, you may be able to hold them accountable for irresponsible marketing strategies.

To hold gun manufacturers and sellers civilly liable, the companies’ actions will have to fall into one of six exceptions to the Protection of Lawful Commerce in Arms Act (PLCAA). The only exception which may apply in your scenario is the one that will require the manufacturer to be in violation of Georgia’s Fair Business Practices Act which prohibits “unfair and deceptive” acts.

Still, tying criminal shootings to deceptive trade practices by gun makers would require a special set of facts which will most likely be related to advertising. However, since many criminals who commit gun crimes have never seen an advertisement for the weapons they use—and since a lot of gun crimes involve stolen weapons—getting your lawsuit all the way to the jury will not be an easy task.

I. Tort law as an impetus to create a safer America

Every day, tort lawyers empower the little guy and protect citizens from misconduct of big corporations. To illustrate, if your child isn’t wearing flaming pajamas, if your car doesn’t explode when you’re rear-ended, and if your doctor is careful regarding any part of your medical treatment, you can thank a tort lawyer.

So, it’s no surprise that people interested in protecting the public from gun violence are turning to tort law for help.

However, in 2005, Congress gave gun manufacturers broad immunity from civil tort lawsuits by enacting the Protection of Lawful Commerce in Arms Act (PLCAA).[1] While the PLCAA is broad, it carves out six exceptions to the immunity granted under the act.[2]  Of the six exceptions, only two apply to lawsuits brought by citizens against gun manufacturers: the “knowingly violated a…statute” exception and the “breach of contract or warranty” exception.[3] Further, as a result of the Connecticut Supreme Court’s holding in  Soto v. Bushmaster Firearms Int’l, LLC, the “knowingly violated a…statute” exception has become a critical weapon in the effort to stop gun manufacturers from carelessly—or intentionally—influencing people to engage in gun violence.[4]

In Soto, family members of several of the deceased victims of the Sandy Hook Elementary School shooting of 2012 brought a wrongful death lawsuit against the manufacturer of the Bushmaster XM15-E2S semiautomatic rifle (an AR-15 style weapon) used in the attack. According to the Plaintiffs, the Defendants violated the Connecticut Unfair Trade Practices Act (CUTPA)—which prohibits “unfair or deceptive acts or practices…”—by advertising and promoting unlawful “offensive use of the rifle” to wage war on people rather than lawful uses such as hunting and self-defense.[5] The Connecticut Supreme Court agreed that such advertising would constitute an unfair and deceptive act and thereby violate CUTPA. So, the Plaintiffs were allowed an opportunity to go back to the trial court and try to prove that the marketing of the weapon led to the shooting.[6]

Georgia’s Fair Business Practices Act is similar to CUTPA since it also includes a prohibition of “unfair or deceptive acts or practices…”.[7] Thus, a Plaintiff seeking to hold a gun manufacturer liable for death or injury could possibly take the same approach as the Plaintiff’s in Soto.[8]

II. Reality: Most gun-related homicides are not a result of deceptive trade practices

However, most instances of gun violence will fail to rise to the level of being the result of unfair or deceptive trade practices for two major reasons: (1) gun crimes are often committed with weapons marketed for self-defense and (2) guns used in crimes are typically stolen.

First, guns commonly used by criminals are not the questionably advertised AR-15s discussed in Soto.[9] Instead, criminals in cities across America are using small handguns such as 9mm Lugers[10] and .40 Smith & Wessons[11]—guns which reputable manufacturers often legally promote as self-defense weapons.[12] Unless advertisements and marketing campaigns are promoting illegal use of the commonly used handguns mentioned above, Georgia’s Fair Business Practices Act will not apply and gun manufacturers are going to be immune to a lawsuit due to the PLCAA.

Second, 80% of gun violence is committed by stolen guns.[13] Thus, eight out of 10 times, it will be impossible for the victim of gun violence to connect a gun manufacturer’s marketing campaign with the unlawful actions of the criminal perpetrator. Without a sound link between the advertisement and the criminal act, the victim will not be able to establish causation.

III. Summary

Tort law may not create an avenue to pressure gun makers to develop solutions to everyday gun violence but it can force them to market their products in a responsible way. Due to the immunity granted to gun manufacturers, a victim of gun violence will need to show that the gun maker’s actions fall within the PLCAA’s limited exceptions. The exception the victim may find most helpful involves gun makers who promote the illegal use of guns. However, since the vast majority of gun crimes involve stolen guns, it will be quite difficult to establish a causal link between the gun crime and the marketing campaign of the gun manufacturer in many cases.

Footnotes:

[1] 15 U.S.C. §§ 7901(b)(1) (providing prohibition of lawsuits against gun manufacturers by persons seeking recovery “for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products”).

[2] 15 U.S.C. § 7903(5) provides six exceptions to immunity granted to gun manufacturers. These exceptions include:

(i) an action brought against a transferor convicted under section 924(h) of Title 18, United States Code, or a comparable or identical State felony law, by a party directly harmed by the conduct of which the transferee is so convicted;

(ii) an action brought against a seller for negligent entrustment or negligence per se;

(iii) an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought…;

(iv) an action for breach of contract or warranty in connection with the purchase of the product;

(v) an action for death, physical injuries or property damage resulting directly from a defect in design or manufacture of the product, when used as intended or in a reasonably foreseeable manner, except that where the discharge of the product was caused by a volitional act that constituted a criminal offense, then such act shall be considered the sole proximate cause of any resulting death, personal injuries or property damage; or

(vi) an action or proceeding commenced by the Attorney General to enforce the provisions of chapter 44 of Title 18…or chapter 53 of Title 26, United States Code….

[3] Id.

[4] 331 Conn. 53, 202 A.3d 262 (Conn., 2019)

[5] Id. at 284.

[6] 331 Conn. 53, 202 A.3d 262.

[7] O.C.G.A. § 10-1-399(b)

[8] 331 Conn. 53, 202 A.3d 262.

[9] Id.

[10] See, e.g., 2017 Firearms Used in the Commission of Crimes, Cal. Dep’t of J. (last visited October 13, 2019), available at https://oag.ca.gov/sites/all/files/agweb/pdfs/publications/firearms-report-17.pdf.

[11]  Sarah Kollmorgen, Chicago Criminals’ Favorite Gunmakers: A Visual Ranking, The Trace, (January 6, 2016) https://www.thetrace.org/2016/01/chicago-crime-guns-chart/

[12] See, e.g., Video archive on Smith & Wesson’s YouTube Channel, available at https://www.youtube.com/user/SmithWessonCorp/videos

[13] See, e.g., Christopher Ingraham. New evidence confirms what gun rights advocates have said for a long time about crime, Wash. Post, (July 27, 2016), https://www.washingtonpost.com/news/wonk/wp/2016/07/27/new-evidence-confirms-what-gun-rights-advocates-have-been-saying-for-a-long-time-about-crime/

What’s a “shotgun pleading”? Welcome to the 11th Circuit.

by Trey Ross, M.Ed., Esq.

Photo by Alexander Dummer on Pexels.com

Question:

I filed a complaint. It was a typical complaint that you’d see in any court in the country. However, Defendant’s counsel has alleged that my complaint is a shotgun pleading and it should be dismissed. I’ve never heard of such a thing. What is a shotgun pleading?

Brief Answer:

First, humbly remind Defendant’s counsel that the appropriate remedy would be a Rule 12(e) motion for a more definite statement rather than a dismissal. [1]

Second, in terms of complaints, a shotgun pleading is a complaint which does not give the Defendant proper notice of the charges against him. To put it another way, the complaint is confusing because you’ve probably cited to irrelevant facts/paragraphs at the start of each numerated count.

So, if you’re being accused of filing a shotgun pleading, you may need to revise your complaint so that each count only contains–and only cites to–facts which are relevant to the specific count. In other words: As a general rule, don’t say “Plaintiff incorporates all proceeding paragraphs” at the start of each count unless all proceeding paragraphs are actually relevant to proving liability for that specific count. Otherwise, the counts at the end of the complaint will contain information which is not relevant to prove Defendant liable for the later counts–even though some of the information was relevant to prove Defendant’s liability for the earlier counts.

In summary, instead of saying “Plaintiff incorporates all proceeding paragraphs” at the start of each count, simply (1) begin each count by citing the specific facts and/or paragraphs which establish liability for that specific count, or (2)  list the relevant facts necessary to establish liability underneath the count without citing to any previously mentioned facts/paragraphs.

Following this rule of thumb will keep you out of a lot of trouble in the courts of the 11th Circuit. However, as you’ll see in the complaints and orders below, exceptions have been permitted.

I. Shotgun Pleadings Explained

This article focuses on shotgun pleadings as they are defined by the 11^th Circuit since this circuit can be considered the epicenter of the shotgun pleading doctrine. The 11th Circuit has approximately 2,224 published opinions on the topic of shotgun pleadings. By comparison, the number of shotgun pleading opinions in the 11th Circuit is 1,423% greater than its second-place runner-up (i.e., the 9th Circuit).

The 11th Circuit’s Court of Appeals provides that “[s]hotgun pleadings ‘contain[] several counts, each one incorporating by reference the allegations of its predecessors, leading to a situation where most of the counts (i.e., all but the first) contain irrelevant factual allegations and conclusions.” See e.g., Strategic Income Fund, LLC v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1295 (11th Cir. 2002). As a result, ‘“[a] shotgun pleading’…[is] one in which ‘it is virtually impossible to know which allegations of fact are intended to support which claims for relief…[and thus] does not comply with the standards of Rule [] 8[.]’” Kabbaj v. Obama, 568 Fed.Appx. 875, 879 (11^th Cir. 2014). According to the 11^th Circuit, shotgun pleadings run afoul of Rules 8 and 10 of the Federal Rules of Civil Procedure requirement that a plaintiff present a “short and plain statement of the claim showing that the pleader is entitled to relief” and if possible, articulate each claim in a separate count. Fed. R. Civ. P. 8(a)(2); Fed. R. Civ. P. 10(b); see also See Fikes v. City of Daphne, 79 F.3d 1079, 1082-83 (11th Cir. 1996) (quoting T.D.S. v. Shelby Mut. Ins. Co., 760 F.2d 1520, 1543 n.14 (11th Cir. 1985) (Tjoflat, J., dissenting)).

While the Court’s descriptions are helpful, a review of the complaints which have passed and failed a shotgun pleading challenge demonstrates that there are exceptions to the rule. Thus, you’ll need to see some actual complaints to get a feel for what a shotgun pleading actually looks like. Otherwise, it will be difficult to determine whether your complaint has “sinned” in the eyes of the 11^th Circuit or whether Defendant’s counsel is just blowing smoke to stall your case.

II. Examples of what not to do…and some exceptions to the rule

Here are some complaints which illustrate what not to do:

1. Paylor v. Hartfor Fire (Amended Complaint), Case No. 6:11-cv-00059-PCF-TBS (11th Cir. 2014)
2. Cook v. Randolph County AMENDED complaint, Case No. 4:08-cv-131-CDL (11^th 2009)
3. Davis v. JPMorgan – Complaint by pro se plaintiff, Case No. 1:12-cv-04126-AT (11^th 2012).
4. Saldivar v. FRESENIUS Complaint, Case No. 1:10-cv-01614-AT (11^th 2013)

     However, here are some complaints which appear to have broken the 11th Circuit’s rule yet survived their shotgun pleading challenge–at least at the district court level. The Judge’s explanation is provided here as well:

1. Purvis v. Atlanta – Amended Complaint 1, Case No. 1:14-cv-03701-AT (11^th 2014)
   • Click here to see the Judge’s Order which explains why the Purvis complaint is not a shotgun pleading
2. In re Friedmans Complaint, Case No. 1:03-cv-03475-WSD (11^th 2004)
   • Click here to see the Judge’s Order which explains why this complaint is not a shotgun pleading
   • By the way, this complaint is also a massive 213 pages long.  
3. Stevenson v. CRRC Complaint, Case No. 6:16-cv-00129-RBD-DAB (11^th 2016)
   • Click here to see the Judge’s Order which explains why the Stevenson complaint is not a shotgun pleading

Note: I repeat that the above-mentioned exceptions were discussed by district court judges and not the 11th Circuit Court of Appeals. 

III. Summary

If you’re new to the 11^th Circuit, welcome to the world of shotgun pleadings. Defense counsel in this circuit have filed thousands of motions accusing complaints of being confusing and failing to give Defendants proper notice of charges. So, to be safe, you’ll need to draft complaints in which the counts only contain—and cite to—facts necessary to support each charge.

Although the shotgun pleading doctrine has given defense counsel a powerful tool—one which is subject to abuse by disingenuous advocates who would like to stall Plaintiff’s case—the 11^th Circuit’s demand for precision within pleadings likely reflects the future of litigation.

Note: If you still need more examples of what to do when drafting your pleadings, check out some of the charging documents written by leading trial lawyers such as Robert Mueller, Special Counsel for the United States Department of Justice.

[1]  Bell Atlantic Corp. v. Twombly , 550 U.S. 544 , 590 (2007) (providing “[t]he remedy for an allegation lacking sufficient specificity to provide adequate notice is, of course, a Rule 12(e) motion for a more definite statement”).

Copyright: Tricky business at times

By Trey Ross, Esq.

Client: I’m a writer. I entered a contract with a photographer to produce some headshots that I could use for the cover of my new book. The photographer developed the pictures but also included her trademark and a copyright symbol in a small portion of the lower right side of the pictures. I explained to her that I need the pictures to be free of all commercial markings like trademarks and copyright symbols.

My book is going to be offered for sale on Amazon.com in two weeks so I used Photoshop to remove the photographer’s trademark and copyright symbol, and I submitted the revised portrait to Amazon.com along with the book cover.

Do copyright laws give her the power to force me to use her trademark on my portraits?

Brief Answer: That’s very likely. However, the answer depends on who owns copyright to the portrait. If the photographer is considered an employee, then you—the employer—would own copyright in the absence of an agreement stating otherwise. On the other hand, if the photographer is the author of the headshots, you may be liable for creating an infringing derivative work.

1. Introduction:

Simply put, copyright pertains to the right to make copies. When an author expresses an original idea in a tangible form, the author has copyright to the work.[1] However, determining who the author is can be tricky. For example, employers can be authors of works created by employees, and people who commission a work to be completed by an independent artist can obtain copyright if a written agreement says such.

If one alters someone else’s copyrighted work without first obtaining permission to do so, the person making the alterations can be liable for infringement.

Still, if defenses to infringement apply, the person making the alterations may not face a penalty.

1. Ownership of works made by others:

An author is “he to whom anything owes its origin; originator; maker.”[2] An important exception exists in the case of “works made for hire” (“WMFH”).[3] In WMFH situations, “the employer or other person for whom the work was prepared is considered the author” and owns the copyright, unless there is a written agreement to the contrary.[4]

Section 101 of Title 17 of the United States Code lays out two scenarios where there can be a work made for hire. The two specific circumstances where a work is “for hire” are as follows:

• a work prepared by an employee within the scope of his or her employment; or
• a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.[5]

So, when the parties have not signed a written agreement describing a creation as a work made for hire, the Court’s analysis will focus on whether the person preparing the work is an employee. To determine whether the artist working for you is an employee, the court will examine factors which include:

1. the hiring party’s right to control the manner and means by which the product is accomplished;
2. the skill required;
3. the source of the instrumentalities and tools;
4. the location of the work;
5. the duration of the relationship between the parties;
6. whether the hiring party has the right to assign additional projects to the hired party;
7. the extent of the hired party’s discretion over when and how long to work;
8. the method of payment;
9. the hired party’s role in hiring and paying assistants;
10. whether the work is part of the regular business of the hiring party;
11. whether the hiring party is in business;
12. the provision of employee benefits; and
13. the tax treatment of the hired party.[6]

For example, in Community for Creative Non-Violence, a nonprofit organization hired a sculptor to produce a sculpture that would raise awareness of the plight of homeless people. Although the nonprofit organization directed the work of the sculptor, the Court found that the sculptor was not an employee since (1) sculpting is a skilled occupation, (2) the sculptor used his own tools, (3) the sculptor worked from his own studio, (4) the sculptor was retained for a short period of time (less than two months), (5) the nonprofit organization was not able to assign additional work to the sculptor, and (6) the sculptor had absolute freedom to determine when and how long to work.[7]

As a result, the sculptor was considered either a joint author or the sole author of the sculpture.[8]

With that in mind, unless an author (e.g., a photographer) has given up some or all of his rights, he is entitled to a number of exclusive powers. See Section III below.

• Alterations and Derivative Works:

As a copyright owner, a person is entitled to a number of exclusive rights.[9] For example, the copyright owner has the exclusive right to make and create “derivative works” from his original copyrighted work.[10] A derivative work is “a work based upon one or more preexisting works, such as a[n]…art reproduction…or any other form in which a work may be recast, transformed, or adapted.[11]

Also, it is important to note that if a photographer has copyright to a photograph but grants a person permission to use the photo, the user “may not exceed the specific purpose for which permission was granted,”[12] and “unauthorized editing of the underlying work . . . constitute[s] an infringement of the copyright….”[13]

For example, in Tattoo Art Inc., v. TAT International, a tattoo artist (“the author”) created a number of illustrations that were to be used as prototypes for future tattoos requested by clients.[14]  The author gave the defendant permission to use the author’s illustrations in exchange for a royalty fee. After some time, the defendant stopped making royalty payments to the author but continued to use the author’s illustrations.[15] In addition, the defendant removed the author’s copyright markings from the author’s illustrations and altered the color of some of the author’s works.[16] As a result, the defendant had created unauthorized derivative works of the author’s original works.[17]

After the author sued the defendant for copyright infringement, the Court found the defendant liable.[18]

 

Summary:

When having work produced by someone else (e.g., a photographer), the author of the work will typically be the person who places your ideas into a tangible form—like a photograph. However, if you and the photographer have signed a written agreement stating that the work was produced as a work made for hire or if the facts show that the artist was an employee, then you may be considered the author of the headshots.

Also, copyright laws give authors or copyright holders the exclusive right to make derivative works. So, if you remove things like trademarks and copyright symbols from a work, you could be liable for infringement.

 

 

Note: This article does not discuss defenses to copyright infringement or joint authorship. Look for future publications on each of those topics.

 

[1] 17 U.S.C. § 103 (1976) (providing that “[c]opyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device”).

[2] Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 346 (1991) (quoting Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53, 58 (1884)).

[3] Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 737 (1989).

[4] Id.

[5] 17 U.S.C. § 101 (1976); See e.g., Billco Int’l v. Charles Prods., 776 F.Supp.2d 105, 111 (2011).

[6] Community for Creative Non-Violence, 490 U.S. at 751-752.

[7] Id. at 752-753.

[8] Id. at 753 (providing that “[the nonprofit organization] nevertheless may be a joint author of the sculpture if, on remand, the District Court determines that CCNV [the nonprofit organization] and Reid [the sculptor] prepared the work ‘with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole’”).

[9] 17 U.S. Code § 106 (1976) (providing that “the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission”).

[10] Id.

[11] Id. at § 101.

[12] Gilliam v. Am. Broad. Cos., 538 F.2d 14, 20 (2d Cir. 1976).

[13] Id. at 21 (emphasis added).

[14] No. 11-2014 (4th Cir. 2012).

[15] Id.

[16] Id.

[17] Id.

[18] Id.

Individualized Education Programs (IEPs), FAPE, and student placement: Questions answered

by Trey Ross, M.Ed., Esq.

Parent: “My child is failing and his teachers are ignoring his IEP. I’d like to have my child taken out of public school and placed in a private school that can better serve him. I’ve heard that I can get the school district to pay for his private school education; is that true?”

Brief answer: Possibly. If a public school fails to provide your child with a free appropriate public education by neglecting to implement “substantial and significant provisions” outlined in his IEP, private school placement at the district’s expense may be an option if doing so is appropriate.

1. What is an IEP?

Under the Individuals with Disabilities Act (“IDEA”), States receiving federal aid must develop an individualized education program (“IEP”) for each child with a disability to ensure that it offers a free appropriate public education (“FAPE”) to all children.[1] The IEP must be in effect at the start of each school year,[2] it will need to consider the “academic, developmental, and functional needs of the child.”[3]

1. Is a failure to implement an IEP a denial of a FAPE?

Typically, to determine if a child has been denied a FAPE, the court will decide (1) whether the school violated the procedural requirements of the IDEA, and (2) whether the IEP is “reasonably calculated to enable the child to receive educational benefits.”[4] The latter requirement generally protects a school from liability if its actions further the child’s education even if the education received is not the finest.[5]

However, when a school unilaterally chooses not to implement significant provisions of a child’s IEP (i.e. when it violates the procedural requirements of the IDEA),[6] the court has held that a FAPE is denied regardless of whether the child was resilient enough to receive some educational benefit.[7]

Thus, a FAPE requires that instruction be catered to the child’s IEP.[8] However, a failure to implement all the provisions of the IEP is not a denial of FAPE[9] since a FAPE is denied only if the school fails to implement “substantial and significant provisions” of the IEP.[10]

For example, in Manalansan, a first-grader with physical impairments that limited his ability to maintain balance while walking received an IEP which specified that he was to be aided when traveling through the school building. The school was also to provide the child with adult aides to assist him in a number of ways. However, the aides often came to school late, left early, and were frequently absent. As a result, the child was seriously injured when he was knocked to the ground by a group of children as he was going to his locker.

The court held that the presence of an aide was a substantial and material provision in the child’s IEP since the IEP mentioned that services could not be rendered without the help of an aide.[11] In essence, the school said that an aide was necessary to provide a FAPE, and the court determined that failure to provide an aide constituted a denial of a FAPE even if the child managed to learn without the aide.[12]

Moreover, if a public school denies a FAPE, the court may decide that the parent is entitled to enroll the child in a private school at the public’s expense.[13] See Section C below.

 

1. Private school placement: Compensatory Education

A court may only award a parent with compensation for a private school education if (1) the public school is unable to meet significant provisions of the child’s IEP and thus incapable of providing a FAPE,[14] and (2) a private school can meet the provisions of the child’s IEP thereby making placement in a private school appropriate.[15]

For example, in School Committee of the Town of Burlington v. Department of Education of the Commonwealth of Massachusetts (“Burlington”), the US Supreme Court held that reimbursement of private school expenses was the appropriate remedy for the public school’s failure to provide a FAPE.[16] In Burlington, a child qualified for special education services but a specialist stated the child required education in a “highly specialized setting for children with learning handicaps . . . such as [the state-approved private school].”[17] Since the child’s public school was unable to meet his specific learning needs and the private school could, the child was enrolled in the private school at the public’s expense.

Summary:

Failure to follow the all of the requirements of an IEP will not necessarily give you a right to have your child placed in private school at the public school’s expense. To qualify for such an arrangement, the public school must fail to provide your child with a FAPE by neglecting to implement significant provisions outlined in the IEP. Also, there must be a private school capable of providing your child with the requirements outlined in the IEP or else placement in a private institution will not be appropriate.

[1] 20 U.S.C. §1412(a)(4) (GPO 2011) (providing that,  among other things, “[a] State is eligible for assistance…if the State submits a plan that provides assurances…[that it] has in effect policies and procedures to ensure that the State…[has an IEP for each child with a disability]”); Forest Grove Sch. Dist. v. T. A., 129 S.Ct. 2484 (2009).

[2] Id. § 1414(d)(2).

[3] Id. at 1414(d)(3)(a)(iv); Forest Grove Sch. Dist., 129 S.Ct. at 2503 (providing “[a]n IEP is an education plan tailored to a child’s unique needs that is designed by the school district in consultation with the child’s parents after the child is identified as eligible for special-education services”).

[4] Manalansan v. Bd. of Educ., 2001 U.S. Dist. LEXIS 12608, 41 (D. Md. 2001).

[5] MM v. Sch. Dist., 303 F.3d 523, 526 (4th Cir. 2002) (providing that “[t]he IDEA does not, however, require a school district to provide a disabled child with the best possible education”).

[6] Manalansan, 2001 U.S. Dist. LEXIS 12608 at 45 (providing “[t]he school, however, does not have the discretion to decline to implement the services listed in the IEP or decide unilaterally, without initiating an IEP meeting to institute a change, that a service listed in the IEP need not be provided”).

[7] Id. at at 41 (providing that “[t]he Fourth Circuit has held that ‘failures to meet the Act’s procedural requirements are adequate grounds by themselves’ for finding a denial of FAPE, apparently without an inquiry into whether educational benefit was conferred on the student despite of the procedural violation” quoting Hall v. Vance Cnty Bd. of Educ., 774 F.2d 629, 635 (4th Cir. 1985)).

[8] J. P. v. Cnty Sch. Bd., 516 F.3d 254, 257 (4th Cir. 2008) (providing that “[a] FAPE ‘consists of educational instruction specially designed to meet the unique needs of the handicapped child. . .supported by such services as are necessary to permit the child to benefit from the instruction’” quoting Board of Educ. v. Rowley, 458 U.S. 176, 188-89 (1982)).

[9] Manalansan, 2001 U.S. Dist. LEXIS 12608 (providing “to prevail on a claim under the IDEA, a party challenging the implementation of an IEP must show more than a de minimis failure to implement all elements of that IEP, and, instead, must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP. This approach affords local agencies some flexibility in implementing IEP’s, but it still holds those agencies accountable for material failures and for providing the disabled child a meaningful educational benefit” quoting Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000)).

[10] Id.

[11] Id.

[12] Id.

[13] § 1415(i)(2)(C)(iii) (providing that a parent may bring a civil action and the court may provide relief as it deems appropriate).

[14] Forest Grove Sch. Dist.. 129 S.Ct. at 2488 (providing that “when a public school fails to provide a FAPE and a child’s parents place the child in an appropriate private school without the school district’s consent, a court may require the district to reimburse the parents for the cost of the private education”).

[15] Id. at 129 S.Ct. at 2504  n.9 (U.S. 2009) (providing “courts may grant reimbursement under § 1415(i)(2)(C)(iii) only when a school district fails to provide a FAPE and the private-school placement is appropriate”).

[16] 471 U.S. 359, 361 (1985).

[17] Id. at 362.

Things you should know about racial profiling

by Trey Ross, M.Ed., Esq.

Plaintiff: “The police racially profiled me, harassed me, and then charged me with disorderly conduct and resisting arrest after a traffic stop. I feel humiliated. I’ve heard of people suing policemen and police departments for abusing their power. Can I take them to court over this?”

 

Brief Answer: You may have several options available. To start, the Supreme Court has stated that racial profiling by police officers can be challenged as violation of the Constitution’s Equal Protection Clause. Also, police officers who deny you your constitutional rights can be sued for violating 42 U.S.C. § 1983. In some instances, officers can be given immunity from personal liability but there are situations where officers will be denied immunity and held personally responsible. In addition to liability for violating §1983, tort theories such as malicious prosecution, false arrest, and false imprisonment may also be available.

 

1. Racial Profiling: An Equal Protection Issue

The US Department of Justice has defined racial profiling as “any police-initiated action that relies on the race, ethnicity, or national origin rather than the behavior of an individual or information that leads the police to a particular individual who has been identified as being, or having been, engaged in criminal activity.”[1] The term “racial profiling” has become a common way of describing the violation of a constitutional right that has been present since the adoption of the 14^th Amendment – that is, no state shall deny to any person within its jurisdiction the equal protection of the laws.[2]

The 14^th Amendment’s Equal Protection Clause was created after the US Civil War and it essentially provides that “all persons similarly situated should be treated alike.”[3] One of the original purposes for the law was to prevent southern states from denying rights to America’s newly freed people of African ancestry.

In addition to promoting equal rights, the Equal Protection Clause also prohibits selective enforcement of valid state laws.[4] For example, African-American motorists have successfully challenged traffic stops and searches by law enforcement officers who targeted and harassed black drivers.[5]

The Fourth Circuit’s Court of Appeals has outlined the standard for bringing an equal protection claim (e.g., racial profiling) against law enforcement officers. In US v. Hammond, the court held that to establish that one “is the victim of racially motivated law enforcement, ‘[t]he claimant must demonstrate that the [enforcement policy] had a discriminatory effect and that it was motivated by a discriminatory purpose. . . . To establish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted.’”[6]

To illustrate, in Maryland State Conference of NAACP Branches v. Maryland State Police, the court was presented with statistical evidence that Maryland state troopers targeted nonwhite motorists,[7] and the court also reviewed accounts of the events as told by the plaintiffs. After examining the information, the court found that there was reason to believe that the officers had violated the Equal Protection Clause on a number of occasions.[8]

In most instances where the court decides a person’s constitutional rights have been violated by a government actor, the plaintiff has a right to seek relief for the harm caused. See section B below.

1. Civil Liability under 42 U.S.C. § 1983

The federal civil rights statute 42 U.S.C. § 1983 provides the following:

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.[9]

Therefore, a person—such as a police officer—can be sued in his individual capacity (i.e., he would have to pay for the harm he caused out of his own pocket) for willfully violating the equal protection clause[10] or a government agency can be held liable for the unconstitutional offenses of its law enforcement officers.[11]

To establish a prima facie case (i.e., a case that will not automatically be dismissed as meritless), under § 1983, a plaintiff must assert: (1) the action occurred “under color of law” and (2) the action is a deprivation of a constitutional right or a federal statutory right.[12]

The first element of the test is relatively easy to spot since any state action (e.g., a policeman acting in his official capacity) is an action under color of law.[13] Also, in the context of racial profiling, the second element can easily be satisfied since “[t]he Fourteenth Amendment right not to be stopped on the basis of race was clearly established in 2009.”[14]

1. Other theories of tort liability

In addition to an equal protection claim and a § 1983 violation, a plaintiff who believes that he has been a victim of racial profiling may also be entitled to hold a police officer liable under tort theories such as malicious prosecution, false arrest, and false imprisonment.

A claim of malicious prosecution is a suit for an injury caused by a criminal prosecution that has been instituted maliciously and without probable cause (i.e, a reasonable belief that the defendant had committed the crime).[15] To bring such a suit, the plaintiff who has been a victim of racial profiling must prove that a criminal proceeding was (1) instituted or continued by the defendant against the plaintiff, (2) without probable cause, (3) with malice, or with a motive other than to bring the offender to justice, and (4) a termination of the criminal proceedings in favor of the plaintiff.”[16]

Also, in the context of racial profiling, claims for both false arrest and false imprisonment[17] are based on an abuse of power by an arresting officer.  The elements of a false arrest and/or a false imprisonment claim are “(1) the deprivation of the liberty of another; 2) without consent; and 3) without legal justification.”[18]

Note: Whether the officer had probable cause is often not a defense to a false imprisonment claim.[19]

Summary:

True racial profiling is a violation of the Equal Protection Clause of the 14^th Amendment. All people are entitled to equal protection from government actors who attempt to enforce laws in a discriminatory manner. Not only are victims entitled to assert their right to be free of racially-based harassment by law enforcement officers, individuals can also hold officers and agencies liable via tort claims.

[1] Deborah Ramirez et al, A Resource Guide on Racial Profiling Data Collection Systems: Promising Practices

and Lessons Learned, 3 (2000), https://www.ncjrs.gov/pdffiles1/bja/184768.pdf

[2] U.S. Const. amend. XIV. § 1.; Whren v. US, 517 U.S. 806, 812-813 (1996) (providing that “the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment).

[3] City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985).

[4] Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936, 944 (9th Cir.2004) (providing that an equal protection claim based on selective enforcement of valid laws requires that a plaintiff can show that the defendants’ rational basis for selectively enforcing the law is a pretext for a malicious motive).

[5] E.g., Md. State Conference of NAACP Branches v. Md. State Police, 454 F.Supp.2d 339, 346-347 (2006) (providing that facts supported finding an officer’s stop of an African-American man had a discriminatory effect and intent since the black driver was stopped for no other reason than to be subjected to a search for weapons and drugs).

[6] No. 08-5162. (4^th Cir., Nov. 25,2009).

[7] 454 F.Supp.2d at 343 (providing a statement by a Lt. Col. Harvey of the Maryland State Police Department declaring that “[a]fter having the opportunity to review statistics gathered from January 1, 1995 through June 1, 1995 pertaining to these searches, the numbers reveal that Troopers are continuing to target nonwhite subjects”).

[8] Md. State Conference of NAACP Branches, 454 F.Supp.2d at 346-356.

[9] 42 U.S.C. § 1983 (2009); See Monroe v. Pape, 365 U.S. 167 (1961).

[10] See Koch v. City of Del City, 660 F.3d 1228, 1238 (10th Cir. 2011) (providing that an officer is not entitled to a qualified immunity defense if the plaintiff demonstrates “both that the defendant violated a constitutional right and that the right was clearly established”), cert. denied, 133 S. Ct. 211 (2012).

[11] Lohdi v. Fairfax Cnty./Bd. Of SUPERVISORS, No. 1:12-cv-1108 (JCC/JFA) (E.D. Va. December 21, 2012) (providing that a government agency can be liable for acts of its employees if the plaintiff pleads and proves an individual violated §1983 as a result of a (1) government policy or custom of deliberate indifference to the deprivation of constitutional rights; and (2) this policy or custom caused the plaintiff’s injury).

[12] Parratt v. Taylor, 451 U.S. 527, 535 (1981).

[13] West v. Atkins, 487 U.S. 42, 49–50 (1988) (providing that “generally, a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law”); Lugar v. Edmondson Oil Co., 457 U.S. 922, 935 (1982).

[14] Martin v. Conner, 882 F.Supp.2d 820 (2012) (referring to Md. State Conference of NAACP Branches, 454 F.Supp.2d 339).

[15] Delk v. Killen, 93 A. 2d 545 (1953).

[16] Harron v. Strader, 761 A.2d 56, 59 (2000).

[17] Id. (providing that the elements of both false imprisonment and false arrest are identical).

[18] Id.

[19] Id. (providing “[t]he Court has consistently held that probable cause is not a defense in an action for false imprisonment based upon a police officer’s warrantless arrest for the commission of a non-felony offense, or upon an arrest by a private person”).