At Garan Lucow Miller, P.C., we continue to strive to keep our municipal and public entity clients aware of current trends in the law that could impact their decision making processes and operations. In recent weeks, there have been three important decisions by the United States Sixth Circuit Court of Appeals and the Michigan Supreme Court of which all municipal leaders should be aware.
You may recall that at an online meeting of the Grand Traverse County Board of Commissioners, a former Grand Traverse County Commissioner held a rifle at his home during a County Commissioners meeting in January, 2021. The incident occurred during the Covid-19 pandemic when the Grand Traverse County Board of Commissioners met by way of video conference. During the mandated public comment period, a member of the public urged County Commissioners to make a statement opposing anti-government militia groups within weeks of the January 6 riot at the United States Capitol.
Shortly after that comment was made, the former Grand Traverse County Commissioner disappeared from the screen and returned with a rifle. Shortly thereafter, the private citizen brought federal court litigation against the former Commissioner alleging that he tried to silence her right to free speech in violation of the First Amendment of the United States Constitution when he displayed the rifle during the 2021 meeting.
The United States Sixth Circuit Court of Appeals recently held that the former Commissioner does not enjoy the broad protections of governmental immunity. The two judges in the majority Opinion indicated that “Virtually smirking and displaying a high-powered rifle at someone during a tension-filled public meeting is pregnant with dangerous meaning.” As such, litigation will continue against the former Commissioner who did not seek re-election in 2022.
Time and time again, communities are confronted with those who seek to infringe upon the public’s right to freedom of expression during public comment at open meetings. Our continued advice for communities is that they refrain from infringing upon those who wish to comment during the course of public meetings and continue to appreciate that the courts will often side with those who wish to make public comments as a fundamental foundation of democracy in government.
The Michigan Supreme Court has recently indicated that it will take a second look at a longstanding battle involving a township’s use of a drone to take aerial photographs of a Northern Michigan couple’s property without a warrant.
This past October, the Michigan Court of Appeals held that the township could use aerial photographs of a couple’s property as evidence in a civil action against the couple for violating a zoning ordinance. This past week, justices of the Michigan Supreme Court have ordered oral argument to address the issue of whether the township violated the couple’s Fourth Amendment rights by using an unmanned drone to take aerial photographs of their property for use in zoning and nuisance enforcement. Many legal commentators in the area of municipal law believe that the Michigan Supreme Court will hold as a matter of law that, absent exigent circumstances, a municipality must obtain a warrant prior to using an aerial drone in order to gather evidence with regard to any type of civil or criminal enforcement. As such, it is highly recommended that a municipality go through the relatively easy process of securing a search warrant whenever it intends to use a drone that might lead to the recovery of evidence.
Our team of highly skilled municipal attorneys are ready, willing and able to assist in fashioning the necessary affidavits and applications for search warrants when necessary.
The law is well-settled throughout the United States that both pretrial detainees and convicted prisoners have a constitutional right to be free from what is described as deliberate indifference to their serious medical needs. Those rights arise under the Fourth and Eighth Amendments of the United States Constitution.
When an individual is housed in your local lock-up or jail facility, it is important to recognize that a person who has an “objectively” serious medical need must be afforded medical attention. All too often, our law firm is asked to defend cases in which a prisoner’s medical needs are ignored due to the crimes for which they are incarcerated by simple neglect.
We remind everyone that an objectively serious medical need includes those conditions that have been diagnosed by a physician which require continuing treatment or those conditions that are so obvious that even a lay person would recognize the immediate need for someone to have a doctor’s attention.
How does a municipality guard against facing a federal court lawsuit in these situations? It is really quite easy. If a prisoner in your custody exhibits objectively manifested symptoms suggesting that they are in need of immediate medical attention, simply call your local fire department without delay and get that individual to a hospital. If the individual is promptly transported to a place where he or she can receive medical care, your municipality and employees should be well-insulated from liability.
For further information or to schedule one of our complimentary employment or police liability seminars for your department, please do not hesitate to contact me at your convenience.
Check out our News & Events page to see what’s happening at GLM and find out about our upcoming seminars.
John Gillooly, Editor of Gov Law, is a Shareholder in our Detroit Office. John can be reached at 313.446.1530 or jgillooly@garanlucow.com.
