Congratulations to David Deratzian, a 2021 Who's Who in America biographee. David is please to join the ranks of less than 1/2 of 1% of Americans to be included in this pretigious listing.
https://www.24-7pressrelease.com/press-release-service/475152
We had a big win today in the Pennsylvania Supreme Court in the case of Harrison v. Health Network Labs. Here is the link to the case:
http://www.pacourts.us/assets/opinions/Supreme/out/J-98-2019mo%20-%20104455287102838455.pdf?cb=1
In this case, the employee proceeded under the Pennsylvania Whistleblower Law when her employer refused to take action based on complaints of race discrimination that she made concerning other employees. The employer in turn fired her for unrelated reason that she contends were untrue.
The Lehigh County Court of Common Pleas dismissed this case, stating that she needed to proceed under the Pennsylvania Human Relations Act, but the Pennsylvania Commonwealth Court reversed, holding that she could proceed directly to court under the Whistleblower law.
We argued this case before the Pennsylvania Supreme Court in November, and the opinions were released this morning. The Supreme Court upheld the ruling of the Commonwealth Court, and so certain aggrieved employees may now proceed under the Whistleblower law without the need to go to the Pennsylvania Human Relations Commission first. This ruling will not apply to every person who complains about discrimination, but only those who are complaining on behalf of others.
One interesting note is that Chief Justice Saylor, joined by two other justices, would have held that employees can bypass the Pennsylvania Human Relations Commission directly in all cases, under a different provision of the human Relations Act. That is not however the law that this case establishes.
So going forward, most employees will still be required to file with the Pennsylvania Human Relations Commission before having the ability to file suit, but some will have the option of proceeding directly to court. This is an important victory for employees in Pennsylvania since the one year wait between filing with the Pennsylvania Human Relations Commission and the ability to file in court does not apply to claims to which the Whistleblower law applies.
Why is police misconduct so hard to fix? Here are some thoughts . ..
David Deratzian
May 27 at 1:42 PM ·
I’ve dealt with the issue of police use of force from all angles - citizens subjected to a use of force, the police officers, and the departments or municipalities. What I’ve learned is that there are two things that need to change that spring from outdated notions of policing:
Qualified Immunity
First, the concept of “qualified immunity” must go. This came from people trying to sue police officers and municipalities under Federal law(42 USC 1983) for civil rights violations. Although the law itself has no defense of immunity from suit, the US Supreme Court thought that police should be given the benefit of the doubt and announced two rules: 1) that the right be “clearly established” and 2) that the facts be viewed from the subjective perspective of the police officer.
The latter of these is a striking contrast to the usual standard in law that views a situation from the perspective of a reasonable person in the same situation, in this case, a reasonable, properly trained police officer. This allowed the now universal defense that “I was in fear for my safety. (IWIFFMS)”While that may sometimes be true, it is now an almost robotic response. And the problem is that this is almost completely dispositive of the question - “he turned quickly, so IWIFFMS,” “I couldn’t see her hands, so IWIFFMS,” “he did not follow instructions, so IWIFFMS.”
The “clearly established” has been perverted from a reasonable idea (after all, you can’t hold someone liable if they would not have had any reason to believe that they were acting wrongfully)to a requirement that the act in question had already been decided to be a violation. So the question is not “is it clearly established that excessive force is prohibited,” it’s (for example) has a previous court decided that holding someone down by putting your knee on his neck is prohibited. If not, qualified immunity. There is no further enquiry about the reasonableness of the action. And that is usually the threshold question.
The idea of qualified immunity is anathema to the civil rights laws, and needs to be done away with. Remarkably, there is support approaching a majority on the US Supreme Court to do away with it. So there is hope on that front.
Use of Force Continuum
This is a device in place in most law enforcement agencies, and starts with the reasonable premise that the police should have some guidance on how to handle situations where they may have to use force. And example can be found at:
https://mediad.publicbroadcasting.net/p/wkms/files/styles/x_large/public/201412/Slide1_0.JPG
The most important feature of these models is that the police are entitled to use force orders of magnitude greater than the force they are faced with. Thus, we hear about situations where a person is 30 or so feet away and holding a knife, and the police say predictably I was in fear for my safety and shoot him. The usual rationale for this is that it might only take a few seconds for the person to traverse 30 feet. The problem with this rationale is that other than holding a knife, the person may not be doing anything other than refusing to put the knife down. We therefore come back to the idea that for not following instructions is a reason to shoot.
The use of force paradigms need to be modified so that police officers cannot use lethal force, including as we saw the other day, restraint techniques which have the potential to be lethal, without a very strong justification for doing so, namely an subjectively imminent threat of bodily harm. The idea that police officers have a roving commission to order the citizenry to do whatever they want is a recipe for allowing use of force paradigms to justify any sort of misconduct.
I think the better model is that police are not allowed to use lethal force unless faced with eminent lethal force. So the person with the knife running toward the police officer may justify a shooting. A person standing there with a knife should not. A person selling illegal cigarettes on the streets of New York, should be met with no force. Period. In that particular situation it was a ticketable offense, not even one that would normally lead to an arrest. And yet in another prone suffocation situation, the police conduct was justified by a use of force model because the person did not follow instructions.. If you look at the use of force model I’ve attached, that falls under the rubric of passive resistance. In other words the person is refusing to comply, which then allows the officer to lay hands upon the person. That’s simply wrong. Once the person starts being manhandled, he or she is naturally going to resist that and that allows the police to escalate up the chain. It was one of these hard techniques that caused that person’s death.
Contrary to the ideas to get flooded out there, refusing to move along is not resisting arrest. Nor, is resisting arrest a crime that can stand alone. The police need to be arresting the person for something that they’re allowed to arrest him for. So here, a person who was not arrestable for either Defense of failing to move along, or selling illegal cigarettes, was placed under arrest and because he did not comply with being arrested was escalated up the chain until the physical contact caused his death. I am fully aware that the courts did not see it that way, and that’s the problem.
I’m using all of the examples as merely convenient ways of illustrating what I’m talking about. Digging down deeply into the facts of each one, is not my purpose. The point is that each of these cases the police were allowed to justify their actions by either the use of force continuum or the qualified immunity defense. They are usually intertwined, in that, after all, if the police officer is following the use of force continuum, how could he be engaging in a violation that was “clearly established“?
In the end, these are two things that need to be carefully considered and dealt with in order to stem the tide of fatal police-citizen interactions.. No problem doing that is of course, political. No politician wants to be seen as being anti-law-enforcement, and at the same time wants to preserve the status quo so that his or her government unit does not get sued for what police officers do. Of course, this kind of protectionist political rationale does not advance the cause of preventing harmful or deadly police Citizen interactions.
mediad.publicbroadcasting.net
I’ve dealt with the issue of police use of force from all angles - citizens subjected to a use of force, the police officers, and the departments or municipalities. What I’ve learned is that there are two things that need to change that spring from outdated notions of policing:
Qualified Immunity
First, the concept of “qualified immunity” must go. This came from people trying to sue police officers and municipalities under Federal law(42 USC 1983) for civil rights violations. Although the law itself has no defense of immunity from suit, the US Supreme Court thought that police should be given the benefit of the doubt and announced two rules: 1) that the right be “clearly established” and 2) that the facts be viewed from the subjective perspective of the police officer.
The latter of these is a striking contrast to the usual standard in law that views a situation from the perspective of a reasonable person in the same situation, in this case, a reasonable, properly trained police officer. This allowed the now universal defense that “I was in fear for my safety. (IWIFFMS)”While that may sometimes be true, it is now an almost robotic response. And the problem is that this is almost completely dispositive of the question - “he turned quickly, so IWIFFMS,” “I couldn’t see her hands, so IWIFFMS,” “he did not follow instructions, so IWIFFMS.”
The “clearly established” has been perverted from a reasonable idea (after all, you can’t hold someone liable if they would not have had any reason to believe that they were acting wrongfully)to a requirement that the act in question had already been decided to be a violation. So the question is not “is it clearly established that excessive force is prohibited,” it’s (for example) has a previous court decided that holding someone down by putting your knee on his neck is prohibited. If not, qualified immunity. There is no further enquiry about the reasonableness of the action. And that is usually the threshold question.
The idea of qualified immunity is anathema to the civil rights laws, and needs to be done away with. Remarkably, there is support approaching a majority on the US Supreme Court to do away with it. So there is hope on that front.
Use of Force Continuum
This is a device in place in most law enforcement agencies, and starts with the reasonable premise that the police should have some guidance on how to handle situations where they may have to use force. And example can be found at:
https://mediad.publicbroadcasting.net/p/wkms/files/styles/x_large/public/201412/Slide1_0.JPG
The most important feature of these models is that the police are entitled to use force orders of magnitude greater than the force they are faced with. Thus, we hear about situations where a person is 30 or so feet away and holding a knife, and the police say predictably I was in fear for my safety and shoot him. The usual rationale for this is that it might only take a few seconds for the person to traverse 30 feet. The problem with this rationale is that other than holding a knife, the person may not be doing anything other than refusing to put the knife down. We therefore come back to the idea that for not following instructions is a reason to shoot.
The use of force paradigms need to be modified so that police officers cannot use lethal force, including as we saw the other day, restraint techniques which have the potential to be lethal, without a very strong justification for doing so, namely an subjectively imminent threat of bodily harm. The idea that police officers have a roving commission to order the citizenry to do whatever they want is a recipe for allowing use of force paradigms to justify any sort of misconduct.
I think the better model is that police are not allowed to use lethal force unless faced with eminent lethal force. So the person with the knife running toward the police officer may justify a shooting. A person standing there with a knife should not. A person selling illegal cigarettes on the streets of New York, should be met with no force. Period. In that particular situation it was a ticketable offense, not even one that would normally lead to an arrest. And yet in another prone suffocation situation, the police conduct was justified by a use of force model because the person did not follow instructions.. If you look at the use of force model I’ve attached, that falls under the rubric of passive resistance. In other words the person is refusing to comply, which then allows the officer to lay hands upon the person. That’s simply wrong. Once the person starts being manhandled, he or she is naturally going to resist that and that allows the police to escalate up the chain. It was one of these hard techniques that caused that person’s death.
Contrary to the ideas to get flooded out there, refusing to move along is not resisting arrest. Nor, is resisting arrest a crime that can stand alone. The police need to be arresting the person for something that they’re allowed to arrest him for. So here, a person who was not arrestable for either Defense of failing to move along, or selling illegal cigarettes, was placed under arrest and because he did not comply with being arrested was escalated up the chain until the physical contact caused his death. I am fully aware that the courts did not see it that way, and that’s the problem.
I’m using all of the examples as merely convenient ways of illustrating what I’m talking about. Digging down deeply into the facts of each one, is not my purpose. The point is that each of these cases the police were allowed to justify their actions by either the use of force continuum or the qualified immunity defense. They are usually intertwined, in that, after all, if the police officer is following the use of force continuum, how could he be engaging in a violation that was “clearly established“?
In the end, these are two things that need to be carefully considered and dealt with in order to stem the tide of fatal police-citizen interactions.. No problem doing that is of course, political. No politician wants to be seen as being anti-law-enforcement, and at the same time wants to preserve the status quo so that his or her government unit does not get sued for what police officers do. Of course, this kind of protectionist political rationale does not advance the cause of preventing harmful or deadly police Citizen interactions.
mediad.publicbroadcasting.net
MESSENGER
Now it's easier to send Hahalis & Kounoupis, PC - Employment Law in the Lehigh Valley and Beyond a message.
