The Ohio Patrolmen's Benevolent Association (O.P.B.A)
State of Ohio v. Brown and Rudlaff v. Gillispie
I recently reviewed two cases decided this summer by Federal and State Courts with jurisdiction in Ohio that I found to be informative and somewhat interesting.
The first case was decided by the Ohio Supreme Court on June 23, 2015, and is likely only relevant to a very specific segment of our membership.
This case, State of Ohio v. Brown, 2015-Ohio-2438 (2015), concerned a Motion to Suppress evidence that was granted by the Sixth District Court of Appeals after having been denied previously by the trial court.
Specifically, the facts of the case detailed that a township police officer made a traffic stop on an interstate highway for a marked lane violation.
After the officer walked her canine around the stopped vehicle, she discovered 120 oxycodone tablets and a bag of marijuana.
The driver was indicted for aggravated possession of drugs. The trial court denied the driver’s Motion to Suppress finding that the police officer had probable cause to stop the driver for the marked lane violation. The driver subsequently pled no contest and was sentenced to a mandatory three years in prison.
On appeal, the driver asserted that because the township police officer lacked statutory authority to stop him on an interstate highway, pursuant to Ohio Revised Code (“R.C.”), Section 4513.39(A), the stop and the subsequent arrest and search were illegal under the federal and state constitutions.
The Appeals Court held that the stop did not violate the Fourth Amendment to the U.S. Constitution, but, the court found that the stop was unreasonable and violated the Ohio Constitution because the marked lane violation occurred outside the officer’s jurisdiction and there were no extenuating circumstances that would have permitted the officer to engage in the stop. As a result, the Appeals Court suppressed the drug evidence and reversed the conviction.
The Ohio Supreme Court accepted jurisdiction of the case to decide the issue of “whether a traffic stop made without statutory jurisdiction or authority violates the protection against unreasonable searches and seizures afforded by Article I, Section 14 of the Ohio Constitution.”
The Ohio Supreme Court then affirmed the Court of Appeals by concluding:
A traffic stop for a minor misdemeanor made outside a police officer’s statutory jurisdiction or authority violates the guarantee against unreasonable searches and seizures established by Article I, Section 14 of the Ohio Constitution. Here, the appellate court correctly determined that the township police officer lacked authority to enforce a marked lane violation on an interstate highway and that the traffic stop and ensuing search of the vehicle were unreasonable, and it properly ordered suppression of the evidence obtained from that search.
The second case of interest was decided by the federal Sixth Circuit Court of Appeals on July 1, 2015.
This case, Rudlaff v. Gillispie, No. 14-1712 (recommended for full-text publication) (6th Cir. 2015), concerns a lawsuit alleging excessive use of force by two police officers during an arrest that was completely captured by the dash-cam videos of both officers.
Before getting to the facts of the case, it is important to note that the Court changed its standard for reviewing the facts in this type of case, due to the reality that the entire incident was captured on video.
Specifically, in summary judgment appeals involving qualified immunity, the Court typically views the facts in the light most favorable to the Plaintiff. In this case, however, the Court asserted that “where the police dash-cam video[s]. . . depict all of the genuinely disputed facts,” [citation omitted], we “view the facts in the light depicted by the videotape[s].” [Citation omitted].
The facts, as recorded on video, demonstrate that the Plaintiff was stopped by an officer on routine patrol who recognized him and knew from three previous encounters that the Plaintiff was driving with a suspended license. Moreover, the Plaintiff had fled from the same officer during their last encounter and had a history of driving while intoxicated, as well as resisting arrest.
The officer initiated a traffic stop and called for back-up. Upon arrival of his back-up, the officer approached the Plaintiff who appeared “highly agitated” and cussed at the officer upon exiting his vehicle. The Plaintiff was non-compliant, refused to be handcuffed and was eventually tased after a knee strike was ineffective in gaining Plaintiff’s cooperation.
The Plaintiff sued the officers claiming that they used excessive force during the arrest.
The officers raised the defense of qualified immunity in the trial court, but, their Motion for Summary Judgment was denied by the district court for the reason that “disputed issues of material fact” were in existence.
The Appeals Court reversed the Court below and found in favor of the officers, concerning the issue of qualified immunity, indicating both that the “officers did not violate” Plaintiff’s “constitutional rights when they used force to subdue him” and that there was no clearly established constitutional violation committed by the officers, by stating as follows:
Carpenter conceded that he resisted arrest. The videos show the same. And the law says that when someone resists arrest, the police may constitutionally use force to ensure their compliance. A jury has nothing left to decide. Because the officers acted constitutionally – and because even if they didn’t, by all accounts they didn’t clearly act unconstitutionally – they are protected by qualified immunity. We reverse.
While the result of this case is obviously significant, especially to the two officers involved, it is further compelling that the Sixth Circuit has slightly altered its standard for reviewing the facts, in this type of case, in light of the evolving and prevalent utilization of technology such as the dash-cam videos employed by the officers here.
 This is obviously significant as so many of your encounters with suspects are either recorded now or likely will be at some point in the future.
The Americans with Disabilities Act (ADA)
By: Jeff Perry, Business Agent
A quick review and why it’s important to you.
The ADA was signed into law on July 26, 1990 by President George Bush. It was meant to allow those with a disability to have an equal opportunity to work and support them with the help of a reasonable accommodation(s). However, the courts didn’t read the law as it was intended.
Several Supreme Court cases put huge limitations on the ADA goals. In Sutton v. United Airlines, 527 U.S. 471 (1999), they ruled that an employee wasn’t disabled if their treatment limited or controlled their medical condition. Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) changed the requirement from a limitation on one portion of the job to a number of functions normally required to live a normal life. This changed the requirement from proving a disability was present to proving your disability couldn’t be adequately treated so that you couldn’t perform normal tasks of regular living.
Hopefully nobody you know has a disability and this law will have no impact upon you directly, however; in this day and age, that would be fairly rare to be the case for long.
When an employee discovers they have some mental or physical problem they go to their doctor to try to get better and take off work with their sick leave if needed. However, when the problem is more chronic then the flu or a cold, employees typically would request Family and Medical Leave Act (FMLA) time when they need time off work for treatment. Doing so would keep the Employer from using the time off as an excuse to discipline an employee for using too much sick leave.
Many employers require employees to use any earned time off prior to using unpaid FMLA time. Either way, FMLA is limited to twelve weeks a year. If an employee needs more time off, they may need to request a reasonable accommodation under the ADA. In addition, an employee may need a reasonable accommodation to work so they can avoid or minimize the time off work due to their disability.
If you have earned time you can use, few employers would have a problem with letting their employees use it due to their needs. However, a lot of employers do have a problem letting their employees have time off when they don’t have any time off. The way the law was interpreted by the Supreme Court left little chance of help to employees.
In 2009, President George W. Bush signed a law amending the ADA back to his father’s original intent. In doing so, the case law on the ADA no longer is relevant. Now there are three types of reasonable accommodation that would cause an Employer to change the work area or procedure.
(i) Modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires; or
(ii) Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position; or
(iii) Modifications or adjustments that enable a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.
An accommodation is reasonable if it’s both “plausible and feasible.” The accomodation can include making areas accessible, modified work schedules, providing readers and interpreters and reassignment to a vacant position. Of course, the accommodation must be balanced against the hardship it would cause the employer.
Undue hardship refers not only to the financial difficulty, but to reasonable accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business.
Needless to say the ADA must be looked at on a case-by-case basis. It’s good to know that there are laws to protect you should the need arise. However, if you think you need such assistance you should contact your OPBA representative to help guild you.
Summer, Politics, Retirement, New Hire and OP&F
Nicer weather has finally arrived and the OPBA’s Family Days are SOLD OUT! The OPBA’s membership has again responded with a great turnout. This year’s attendance facts are: OPBA Day at Progressive Field Cleveland Indians 83 member departments attended.
OPBA Day at Fifth Third Field, Toledo Mudhens 15 member departments will attend.
OPBA Day at Great American Ball Park, Cincinnati Reds 28 member departments will attend.
In total 126 member departments will attend OPBA Family Days for 2015.
The OPBA is excited to announce our annual golf outing is back for 2015. This year’s outing will be held at Lake Forest Country Club in Hudson Ohio on August 31st. The outing will be limited to 144 golfers on a first come basis. Look for future details at opba.com.
On May 13th the OPBA continued to be mindful of its interest at the Federal level of government. I along with Counsel to the Board Andy Douglas and OPBA Attorney Dan Leffler traveled to Washington D.C. to lobby on behalf of the OPBA membership. The OPBA’s representatives spoke on Capitol Hill with the offices of Senator Sherrod Brown, Congressman Jim Jordan and Congressman Steve Chabot. Senator Rob Portman was also scheduled to meet with the OPBA representatives but was testifying on the floor of the Senate at the OPBA’s scheduled time. Fortunately, Andy Douglas was able to schedule another meeting with Senator Portman. I and Attorney Leffler along with two OPBA members were able to personally meet with Senator Portman for approximately an hour and a half. The OPBA representatives spoke about five key legislative priorities which we believe are important to ALL OPBA MEMBERS.
These priorities are:
Bulletproof Vest Partnership Grant Program (BVP)
Government Pension Offset (GPO) & Windfall Elimination Provision Reform
National Blue Alert
Public Safety Officers Benefits (PSOB)
“Cadillac” Health Insurance Plan Tax
I want to thank all the Congressional Staff and especially Senator Portman who really took extra time to consider the OPBA membership personally.
Kevin Powers who has been representing the OPBA and its members for the last 22 years is retiring effective June 26th. I want to thank Kevin for all his hard work and dedication to the OPBA’s members.
George Gerken has been hired to replace the vacancy left by Kevin Powers. George is a Toledo area attorney and former police officer. George has experience in collective bargaining, criminal defense and family estate planning. George will be based out of the OPBA North Royalton office and will officially begin June 1st. Welcome to the OPBA team George!
Just a reminder for active members in the OP&F retirement system, your pension withholding will increase .75% to 12.25% July 1st. This was part of the last pension changes and is the third increase in as many years.
Revised Rules for Tampering With Evidence Charge
You pull someone over for traveling left of center. The driver does not have a valid license. There is a strong smell of alcohol, and you suspect that the driver is under the influence of alcohol. As you start to arrest the driver, you see him toss a knife out of the window.
Can you charge this driver with Tampering with Evidence?
No. On May 29, 2014, the Ohio Supreme Court redefined the charge of Tampering with Evidence. Tampering is still a valid charge. To prove that charge, the State must prove that the defendant altered, destroyed, concealed or removed a record, document or other item with the intent “to impair its value or availability as evidence in such proceeding or investigation.” This requires that the defendant know there is or likely will be a criminal investigation involving the evidence with which he tampered.
The most important factor in considering a Tampering charge is whether the evidence in question was involved in the crime for which the suspect is charged. If the item that is being altered, destroyed or concealed is not related to what the suspect is being investigated for (at that current time), you cannot charge him with Tampering.
Imagine you respond to a call of shots fired. If, when you arrive on the scene, you see someone try to toss a gun, a Tampering charge would be absolutely appropriate. If you see or suspect drug use and the suspect attempts to alter, destroy or conceal those drugs, a Tampering charge is also appropriate.
In the first scenario above, the knife did not relate to driving left of center. The knife did not relate to driving without a valid license, nor did it relate to driving under the influence of alcohol. Therefore, you cannot charge the driver with Tampering with Evidence.
What if, instead of a knife, you saw the driver hide a beer can under his seat? Because the driver had not been maintaining his lane and smelled of alcohol, which led you to suspect him of driving while under the influence of alcohol, it would be reasonable to charge him with Tampering with Evidence if you saw the driver attempt to hide an alcoholic beverage.
Your key consideration when deciding whether to charge an individual with Tampering with Evidence should be whether the item being altered, destroyed, concealed or removed is related to the current investigation. If the evidence tampered with has relevance to the current investigation, then you can add a Tampering charge.
This article is not to be considered legal advice. Please consult your police legal advisor regarding any legal issue.
Sherri Bevan Walsh
Summit County Prosecuting Attorney
Young v. UPS, The Latest From the Supreme Court on Pregnancy Discrimination
The federal Pregnancy Discrimination Act specifies that Title VII’s prohibition against sex discrimination applies to discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions.” The Act’s second clause specifies that employers must treat “women affected by pregnancy...the same for all employment-related purposes...as other persons not so affected but similar in their ability or inability to work.” At issue before the United States Supreme Court in Young v. United Parcel Service, Inc., 575 U.S.___(2015), was how this second clause applies in the context of an employer’s policy that accommodates many, but not all, workers with non-pregnancy-related disabilities. By a holding that rejected both the theories of the employee and the employer, the Supreme Court vacated the judgment of the Fourth Circuit which had dismissed the employee’s lawsuit, and remanded the case with instructions that the employee be given an opportunity to prove that UPS discriminated against her by denying her an accommodation that it had made available to other employees with work restrictions.
The plaintiff in the case, Peggy Young, worked as a part-time driver for UPS. Her duties included picking up and delivering packages. After several miscarriages, she became pregnant and was ordered by her doctor not to lift more than 20 pounds during the first 20 weeks of her pregnancy or more than 10 pounds thereafter. Since UPS required workers in Young’s position to be able to lift parcels weighing up to 70 pounds, she was told that she could not work with this restriction. As a result, Young was placed on unpaid leave and eventually lost her medical coverage.
Young then brought suit against UPS alleging that it acted unlawfully in refusing to accommodate her pregnancy-related lifting restriction. Young argued that there were other workers who were similar in their inability to work who received accommodations. These employees included drivers who had become disabled on the job, those who had lost their DOT certifications, and those who suffered from disabilities covered by the Americans with Disabilities Act. UPS argued essentially that it did not discriminate against her, as she was treated the same as all other employees who did not receive accommodation and were not included in those categories. The District Court granted UPS summary judgment, concluding that Young did not make out a prima facie case of discrimination for reason that her condition was too different from the accommodated categories to be considered “similarly situated.” The Fourth Circuit affirmed.
While the Supreme Court vacated and remanded the case by a 6-3 vote, it rejected Young’s claim that as long as an employer accommodates only a subset of workers with disabling conditions, pregnant workers who are similar in their ability or inability to work must receive the same treatment even if still other non-pregnant workers do not receive accommodations. The Court expressed that such a reading gives pregnant employees an unconditional “most-favored-nation” status undeserved under the Act. Likewise, the Court rejected UPS’ theory that the Act’s second clause does no more than define sex discrimination to include pregnancy discrimination. The Court found that this interpretation fails for reason that such is accomplished expressly by the first clause of the Act. The Court explained that the employer’s interpretation would essentially ignore the Act’s second clause. Further, the Court found that adopting the employer’s interpretation would fail to carry out a key objective of the Act - overturning previous Supreme Court precedent that had upheld against a Title VII challenge a company plan that provided non-occupational sickness and accident benefits to all employees but did not provide disability-benefit payments for any absence due to pregnancy.
The Court explained that the proper method for determining violations of the Act’s second clause involves a process of shifting burdens. A prima facie case is made by the pregnant employee showing that she sought an accommodation, that the employer did not accommodate her, and that the employer did accommodate others similar in their ability or inability to work. The employer may then justify its refusal to accommodate by relying on legitimate non-discriminatory reasons. If an employer offers apparently legitimate, non-discriminatory reasons for its actions, the employee may then show that such reasons are a pretext for bias. The Court explained that an employee can reach the jury on this question by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers and that the employer’s legitimate non-discriminatory reasons are not sufficiently strong. Facts going to pretext include, according to the Court, UPS accommodating most non-pregnant employees with lifting limitations while categorically failing to accommodate pregnant employees with these limitations. Accordingly, this analysis at its end focuses on the impact of employer policies allowing for accommodation of non-pregnant employees.
By vacating judgment and remanding the case for further proceedings consistent with its opinion, the Court did not make a determination as to whether Young, in fact, created a genuine issue of material fact on the question of pretext to overcome summary judgment. However, it is clear that the Court’s expressed method for analyzing pregnancy discrimination cases results in pregnant employees having an easier case to make for accommodations than had been allowed by the Fourth Circuit.
Estate Planning Tips
Trying to deal and cope with a loss of a loved one is extremely challenging and emotionally draining in itself. However, when you add the handling of the estate and all that can come with it, it can very well be too much for someone to handle during such a tough time in their lives. Hopefully after reading this article, the handling of the estate process should be much simpler and easier.
Titling of accounts
Arguably one of the most important things you can do in advance is to ensure all of your accounts are titled properly. If you are married, it usually makes sense to have all of your bank accounts held as “Joint tenants with rights of survivorship” with your spouse. This means, that if one spouse passes away, the bank account would then be held in the surviving spouse’s name to avoid probate. In addition to having the account held jointly, you can also add a “Transfer on Death” (TOD) or “Payable on Death” (POD). If something happened to both you and your spouse, those accounts would then pass on to your TOD or POD (i.e., your children) and also avoid probate. Any non-retirement account (i.e., brokerage accounts, bank accounts, etc.) should be titled either jointly with a TOD or POD, or both.
When it comes to any life insurance and retirement accounts, such as deferred compensation, DROP, IRAs, etc., you ALWAYS want to ensure you have both primary and contingent beneficiaries! This again will avoid probate and ensure your assets are going to go to the proper people when you pass away. It is very simple to update your beneficiaries and also important to know how your accounts are titled. Too many times, we find out too late that a few accounts were missed or not titled properly; and it creates more headaches and also costs more money to get the assets to the appropriate people.
In addition to titling all of your accounts properly, it is important to have your legal documents updated and in force prior to when a life-changing event happens. These would include your Wills and Powers of Attorney. Everyone should have a Will, as this will distribute any remaining property that has to go through probate. It is important to remember that all of the accounts mentioned above would avoid going through probate and also avoid passing to your Will if they were titled properly. However, anything remaining would then go through probate; and your Will would distribute the assets accordingly.
You should also make sure both you and your spouse have a Durable Power of Attorney and Health Care Power of Attorney established. These become important in times where one of you is deemed incapacitated or incompetent. In most cases, spouses make each other their powers of attorney so they can make the appropriate decisions on their spouse’s behalf. It can, however, be any one of your choosing; but it’s very important that it is a well- trusted and well-known individual, as this title gives them a lot of control.
Some people want to take their legal documents a step further and create a trust. Simply put, a trust can allow you to “control your assets from the grave” and also ensure your assets stay in your bloodline. This would also avoid probate expenses. Trusts can sometimes be relatively expensive to set up, so it’s important to understand what they do, and be sure that the cost justifies what you are trying to accomplish.
In summary, doing the above steps can help make the loss of a loved one less stressful and less of a burden when trying to settle the estate and final affairs. It is also important to communicate your wishes with your spouse or other loved ones, and be sure everyone is on the same page. Also, make sure you know where your important documents are held, and that they are in a secure place.
No one likes to talk about death, but none of us know what the future may hold; so it’s important to be prepared. If you have further questions on any of the topics discussed, feel free to give us a call.
Lineweaver Financial Group
Securities offered through Triad Advisors, member FINRA/SIPC. Advisory services offered through Lineweaver Wealth Advisors, LLC. Lineweaver Wealth Advisors is not affiliated with Triad Advisors.
This is not intended to be legal advice. Please consult an attorney to address your specific situation.
- A Message from the Executive Director April 2015
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- 2015 Membership Form
- Law Enforcement Bulletin October 2014
- 22nd Top Cops Award form