Author(s): John J. Gillooly, John Heikkila, Jennifer Bruening

From the Editor

by John J. Gillooly

COVERING YOUR ASSETS

A giant bulls-eye. That’s what may as well be painted on the backs of our municipal leaders. With the ever-increasing hurdles facing plaintiffs in the areas of product liability, medical malpractice, auto negligence and premises liability, more and more attorneys are looking for ways to sue municipalities.

Of interest is that many of the cases against municipalities are brought by people who have been arrested by our police departments. How can that be? Well, for one thing, we have been far too lenient in allowing persons charged with resisting arrest or assaulting a police officer to plead to reduced charges. This practice is a very bad idea.

Remember that if force is necessary during the course of an arrest, the arrestee is probably going to sue. And if they are charged in a criminal proceeding with resisting arrest or assault on a police officer, a guilty plea to those charges will go a long way toward making a subsequent civil suit go away very quickly. The reason being is that a guilty plea or even a “no-contest” plea will be admissible to show that the criminal defendant did do something wrong and the force used by the officers was objectively reasonable under the circumstances. Why else would the criminal defendant have pled guilty? The lesson to be learned is this: If someone is charged with a resisting-type offense or assault on a police officer, don’t let them offer a plea to a completely different crime. Obtaining a plea to the original charge will go a long way toward avoiding subsequent civil litigation.

BREAKING NEWS!!

Michigan Supreme Court overrules Newton v Michigan State Police, 263 Mich App 251 (2004) to the extent that it attempted to limit an appeal of right from a denial of governmental immunity where there were questions of fact. Watts v Nevils, ___ Mich ___ (2006). The Supreme Court ruled that defendants have a right to an appeal under MCR 7.202(6)(a)(v) and 7.203(A)(1) when the lower court denies governmental immunity and whether there are factual issues remaining is irrelevant.

SEMINAR REMINDER

FREE Employment Law Seminar for Municipalities and Court Administrators
Thursday, October 5, 2006
9:00 am to 1:00 PM
Complimentary Continental Breakfast
Location: Automation Alley
2675 Bellingham
Troy, MI 48083
R.S.V.P. to dsedman@garanlucow.com

E-MAIL COMMUNICATIONS AND THE OPEN MEETINGS ACT

by John Heikkila

It is becoming increasingly common for members of public bodies to discuss issues pending before the body utilizing e-mail. The subject of e-mails range from simply informational matters to issues that the public body will formally address at an upcoming meeting. The Open Meetings Act, MCLA 15.261, et seq.; MSA 4.1800 (11), et seq. (OMA) does not specifically address e-mail communications. However, members of public bodies should be very cautious as to how e-mail communications are utilized regarding matters pending before the public body.

Section 3 of the Open Meetings Act provides that all meetings of a public body shall be open to the public and held in a place available to the general public. MCLA 15.263(1); MSA 4.1800 (13). Further, the Act provides that all decisions of a public body shall be made at a meeting open to the public. MCLA 15.263(2); MSA 4.1800 (13). Finally, all deliberations of a public body constituting a quorum shall take place at an open meeting, except as provided in the closed session provisions of the Act. MCLA 15.263(3); MSA 4.1800 (13).

The OMA contains the following definitions:

  • Meeting – the convening of a public body at which a quorum is present for the purpose of deliberating toward or rendering a decision on a public policy. MCLA 15.262(b); MSA 4.1800 (12).
  • Decision – a determination, action, vote, or disposition upon a motion, proposal, recommendation, resolution, order, ordinance, bill, or measure on which a vote by members of a public body is required, and by which the public body effectuates or formulates public policy. MCLA 15.262(d); MSA 4.1800 (12).

The Court of Appeals, in Ryant v Cleveland Twp, 239 Mich App 430 (2000), adopted a broad definition of “meeting,” noting:

“To constitute a meeting of a public body as contemplated by the OMA, three elements must be present, (1) a quorum, (2) deliberation or rendering of a decision, (3) on a matter of public policy.”

E-mail discussions between a quorum of the members of a public body that involve an exchange of information and opinions regarding matters pending before that body could be interpreted as “deliberations.” Such actions could expose a public body to a claim based upon a violation of the OMA.

Remember, general information exchanges between members of a public body do not usually constitute a violation of the OMA. However, members of a public body should exercise caution regarding any e-mail communications that address a subject that may come before the body for formal action. If you have any questions regarding this issue, it is always best to consult with an attorney first.

FOURTH AMENDMENT SEARCH & SEIZURE

by Jennifer Bruening

“Knock and talk” permits curtilage intrusions when contact attempts at the front door fail and an officer reasonably believes the homeowner is in or around their home. Hardesty v Hamburg Township ___ F.3d ___ (September 1, 2006).

In a case of first impression, the Sixth Circuit recently extended the “knock and talk” technique, often employed by law enforcement officials during their investigations, beyond the front door of a person’s home and into the curtilage when the circumstances indicate that someone is present inside the home and attempts to contact them by knocking on the front door are unsuccessful.

In Hardesty v Hamburg Township et al, ___ F.3d ___(2006), several officers proceeded to the back deck of the Plaintiffs’ home after their loud knocks on the front door and several dispatch calls proved unsuccessful to contact the persons inside the home. The officers did not have a warrant, but they believed that people were home because they had arrested an intoxicated minor coming from the home, several cars were present in the driveway, and when the officers approached the home, an interior light was turned off. Once on the back deck, the officers observed an unresponsive young man who appeared to need medical assistance and they initiated entry into the home. The plaintiffs filed suit alleging unreasonable search and seizure after the officers entered the home based upon a medical emergency they only observed after the officers came to the back deck, which is an area ordinarily under the protections of the Fourth Amendment.

Recognizing that a “knock and talk” conducted at the front door might not always result in contact with the homeowner, the Sixth Circuit agreed with its sister circuits that where knocking at a front door is unsuccessful, in spite of indications that someone is present in or around the house, an officer may take reasonable steps to make contact with that person even if those steps require an intrusion into the curtilage of the home.

The use of information obtained from a LEIN check of a license plate does not violate the Fourth Amendment where the officer is in a position to observe the plate, because there is no expectation of privacy in a license plate. United States v. Ellison, ___ F.3d ___ (September 5, 2006).

In a case of first impression, the Sixth Circuit vacated a suppression issued after the trial court determined that information obtained from a LEIN check of the defendant’s license plate constituted fruit from the poisonous tree. The officer in that case observed a van, with the driver inside, idling in a no parking fire lane. Rather than issue the driver of the van a ticket, the officer ran the license plate through LEIN. The search revealed that the owner of the van had a felony warrant for his arrest. After several minutes, a male passenger entered the van, and the officer effected a traffic stop. The passenger volunteered that he was the vehicle’s owner, at which point the officer arrested him on the outstanding warrant. A pat-down search revealed that the defendant possessed several weapons at the time of his arrest. The trial court, however, suppressed the firearms as the fruit of an illegal search.

The Sixth Circuit reversed, holding that the Defendant had no expectation of privacy in the information contained on a license plate, because the very purpose of a license plate is to display identifying information to the public and law enforcement officials. Because no expectation of privacy existed, the officer did not need probable cause to run a LEIN check on the plate. In conclusion, the Court stated that as long as the officer has a right to be in a position to observe the license plate, any observation of that plate, and the use of any corresponding information obtained from the plate does not violate the Fourth Amendment.