Napier, Coury & Baillie, PC

12/08/2022

04/10/2020

Please advise your members that due to Corona/COVID-l9 virus there is very little news for the
media to report. With people staying home and very little activity for the media to report, your
members' off-duty actions could now make it to "front page" news due to the lack of news stories.
Please advise your members they need to be very careful off-duty and refrain from confrontations
while off-duty and remind them to use seek counseling during this time if personal or home life
issues arise.
Specific Areas Members Need to be Careful:
1. Social media comments
2. Neighbor confrontation - Take it to the HOA or call the local police. Don't handle
it yourself.
3. Domestic confrontation - Leave the home or the situation if an argument gets
heated. Don't put yourself in a situation where you will be defending yourself or
going hands on. Just leave. If you feel you are not able to leave the police, record
the situation the best you can.
4. Alcohol use - During these times don't engage in binge drinking, as you know, this
can result in disorderly conduct allegations and put the member on front page news.
Of course, don't drink and drive or let your friends drink and drive.
5. COVID-19 precautionary orders - Even if you do not agree with the Governor, you
need to comply with orders. If a park or playground is closed due to COVID-I9,
don't go there and hang out. Find other areas for your children.
In addition, if any member is exposed to the Corona/COVID-19 virus while on-duty please make
sure that member immediately notifies the employer for a workets' compensation notification.
Our law firm is still open for business for our Associations. Due to the Governor's order, we are
keeping staff to a minimum to avoid any issues. We are still 24 7 by phone and we are happy to
meet with any member at our office or anywhere, as is needed.
It's our goal to get through this pandemic without losing any member to a media frenzy. They can
call me directly if they have an issue, but they should not be engaging in off-duty activity that will
cause media attention. Stay safe and well.

10/09/2018

Napier, Coury & Baillie was proud to be a sponsor at the 2nd Annual NAACP Equality, Justice and Democracy Golf Tournament.

04/26/2018

04/20/2018

We hope you find this article by Cassidy Bacon informative.

Kisela v. Hughes – Expanding Entitlement to Qualified Immunity in Use of Force Cases

On April 2, 2018, in Kisela v. Hughes, 584 U.S. ___, the United States Supreme Court overturned a Ninth Circuit Court of Appeals decision in favor of a woman who had been shot and wounded by a law enforcement officer in Tucson, Arizona. In doing so, the Court held that the officer was entitled to qualified immunity because the incident was far from an obvious case in which any competent officer would have known that it violated the Fourth Amendment.

Factual Background

In May 2010, three officers responded to a 911 report that a woman was acting erratically and hacking at a tree with a large kitchen knife. Upon arrival, the officers observed a woman standing next to a car in the driveway of a nearby home. The officers were separated from the woman by a chain link fence. Another woman exited the home carrying a large knife at her side. This woman, later identified as Amy Hughes, matched the description provided by the 911 caller. Hughes approached the woman in the driveway and stopped approximately six feet away.

At this point, the officers drew their guns and twice ordered Hughes to drop the knife. Although Hughes appeared calm, she did neither acknowledge the officers’ presence nor dropped the knife. Without additional warning, one officer dropped to the ground and shot Hughes four times through the fence. The entire incident lasted less than a minute.

Hughes survived the shooting and sued the officer who shot her, alleging a violation of her civil rights. A federal district court ruled for the officer, but the Ninth Circuit reversed, holding, first, that the record was sufficient to establish that the officer violated Hughes’s Fourth Amendment rights and, second, that the officer was not entitled to qualified immunity because the Fourth Amendment violation was obvious and clearly established by previous, similar court cases.

The Supreme Court Decision

The Supreme Court reversed the Ninth Circuit without deciding whether the officer had violated the Fourth Amendment. Instead, it held that even assuming the officer used excessive force in violation of the Fourth Amendment, he was entitled to qualified immunity.

The Court explained that “[q]ualified immunity attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known” and cautioned against lower courts defining “clearly established rights” too generally. For a right to be clearly established, existing precedent must have placed the constitutional issue beyond debate. In the context of use of force cases, “[a]n officer ‘cannot be said to have violated a clearly established right unless the right’s contours were sufficiently definite that any reasonable official in the defendant’s shoes would have understood that he was violating it.” Thus, “police officers are entitled to qualified immunity unless existing precedent ‘squarely governs’ the specific facts at issue.” The Court found that the Ninth Circuit had failed to apply this portion of the standard correctly.

The Court considered the standard in light of the following facts:

• The officer had only a few seconds to assess the potential threat.
• The officer was confronted with a woman armed with a large knife who was reported to have been behaving erratically.
• Hughes was only feet away from another individual and failed to acknowledge two separate commands to drop the knife.
• The officer claimed to have shot Hughes because he believed she posed an immediate threat to the woman standing next to her.
• The other two officers on scene reported that they also believed Hughes was a threat.

Given those facts and the lack of precedent with a sufficiently similar fact pattern, the Court concluded that this was “far from an obvious case in which any competent officer would have known that shooting Hughes to protect [the third party] would violate the Fourth Amendment.” Accordingly, the Court held that the officer was entitled to qualified immunity and reversed the Ninth Circuit’s decision.

Dissent

It should be noted that not all justices agreed with the majority’s decision to reverse. Justice Sotomayor authored a strong dissent, joined by Justice Ginsburg, asserting that the ruling “is not just wrong on the law; it also sends an alarming signal to law enforcement officers and the public” that officers “can shoot first and think later.” Justice Sotomayor’s disagreement centered on the “clearly established” standard. In her view, the majority placed too much emphasis on there being a factually identical case. Rather, she wrote, “[i]t is enough that governing law places ‘the constitutionality of the officer’s conduct beyond debate.’ Because, taking the facts in the light most favorable to Hughes, it is ‘beyond debate’ that [the officer]’s use of deadly force was objectively unreasonable, he was not entitled to summary judgment on the basis of qualified immunity.”

Conclusion

Kisela provides additional support for the principle that law enforcement officers must have knowledge that their actions would violate the Fourth Amendment before they can be held liable for a use of force incident. Unless a factually similar case existing before a use of force incident demonstrates that an officer’s actions were clearly unconstitutional, the officer would likely be entitled to qualified immunity. This ruling, thus, will likely be helpful in defending officers sued civilly for uses of force.

****Disclaimer: This publication is provided for your convenience and does not constitute legal advice.

03/20/2018

PLEA - March/April 2018

03/01/2018

Public Employee Speech: Is your speech protected?
By: Eric R. Wilson, Attorney at Law

Public employees are often faced with the issue of whether their speech is protected from adverse employment action. Speech is guaranteed freedom, and thus protection, under both the First Amendment of the U.S. Constitution and Article II Section 6 of the Arizona Constitution. In certain cases, public speech is not necessarily protected. This is a brief summarization of the legal landscape of protected speech in the general context of public employment. Here we will expound on two U.S. Supreme Court decisions, Pickering v. Board of Education (1968) and Garcetti v. Ceballos (2006), and the U.S. Ninth Circuit Court of Appeals decision in Demers v. Austin (2014) to inform employees of critical interpretations of first amendment protections.
In Pickering, a public high school teacher wrote a letter to a local newspaper that was “critical of the way in which the Board and the district superintendent of schools had handled past proposals to raise new revenue for the schools.” Pickering v. Board of Ed. Of Tp. High School Dist. 205, 391 U.S. 563, 564 (1968). The School Board fired the teacher after the Board determined that “the publication of the letter was ‘detrimental to the efficient operation and administration of the schools of the district.’” Id. Applying a balancing test, the Supreme Court ultimately held that the Board’s conduct violated the teacher’s First Amendment right “to comment on matters of public interest in connection with the operation of the public schools in which [he] work[s].”
Under the Pickering two part test; (1) the employee speech must address “matters of public concern;” and (2) the employee’s interest “in commenting upon matters of public concern” must outweigh “the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Id. at 568. Thus, if employee speech addresses a matter of public concern that outweighs a legitimate state interest, then that speech is protected by the First Amendment.
Up until the Supreme Court’s 2006 decision in Garcetti, the Pickering balancing test governed public employees’ First Amendment claims. However, Garcetti resulted in a significant change in the law. Garcetti v. Ceballos, 547 U.S. 410 (2006). In Garcetti, a deputy district attorney authored a memorandum disputing the truthfulness of certain facts contained in a police affidavit supporting a search warrant application. Id. at 414. His employer retaliated against him for writing and subsequently defending the memorandum. Id. at 415. The Garcetti Court held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Id. at 421. In short, under Garcetti, statements issued by public employees “pursuant to their official duties” were no longer protected by the First Amendment. Id. at 421. However, the Garcetti opinion left open one notable exception. Responding to concerns raised by Justice Souter in dissent, the Court declined to address whether its holding applied to “speech related to scholarship or teaching.”

11/17/2017

Sexual Harassment in the Workplace: A Sexy Topic in Current News

By: Eric R. Wilson, Attorney at Law

Lately, it seems like the news is filled with a continuing barrage of s*xual harassment accusations, referred to as the “Weinstein Effect.” The names of high-profile figures in entertainment and politics are constantly pinging our social media notifications and news feeds. The accusations range from inappropriate comments to criminal s*xual assault. In the wake of these accusations, we are seeing these high-profiled accused being fired or stepping down from their positions of power, but many are asking what recourse exists for the accusers/victims. The answer lies in Title VII of the Civil Rights Act of 1964 (“CRA”).

What is Sexual Harassment?
Sexual harassment is a form of s*x discrimination that violates the CRA, which applies to employers with 15 or more employees, including state, local and federal governments. Unwelcome s*xual advances, requests for s*xual favors, and other verbal or physical conduct of a s*xual nature constitute s*xual harassment when this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment. Harassment does not have to be of a s*xual nature, however, and can include offensive remarks about a person’s s*x. For example, it is illegal to harass a woman by making offensive comments about women in general. Although the CRA doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

Enforcement Trends
Under the CRA, both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same s*x. The U.S. Equal Employment Opportunity Commission (EEOC) reports, of the 11,364 s*xual harassment charges received during FY 2011, 83.7% were charges by females. In 2011, females made up 47% of the labor force. Of the 11,364 charges filed in FY 2011, a staggering 53% of them received the EEOC's determination of no reasonable cause to believe that discrimination occurred based upon evidence obtained in the investigation. Even more surprising is that of the remaining 47%, only 6.1% of the charges in FY 2011 received EEOC's determination of reasonable cause to believe that discrimination occurred based upon evidence obtained in investigation. Reasonable cause determinations are generally followed by efforts to conciliate the discriminatory issues which gave rise to the initial charge. The EEOC reported that in FY 2011, $52.3 million were awarded in monetary benefits, via settlement successful conciliations, and merit resolutions.

Notably, these figures do not include litigation settlements and judgment awards. They also do not factor the cases that are never formally charged and contractually bound confidential, which is the likely scenario where the accused is wealthy. “At Fox News, where the conservative icons Roger E. Ailes and Bill O’Reilly were accused of harassment, women have received payouts well into the millions of dollars. But most of the women involved in the Weinstein agreements collected between roughly $80,000 and $150,000, according to people familiar with the negotiations.” Ultimately, it is up to the victim to determine how the harassment is handled, however it’s these settlements and hush money that are likely the reason why high-profile harassers can repeat their offenses, creating a culture that condones hostile work environments.

Identify and Report Sexual Harassment
While the CRA establishes the federal standard prohibiting s*xual harassment in the workplace, employers can implement more stringent policies to guard against a hostile work environment. The Supreme Court has issued opinions requiring employers to enact policies of their own and implement training and reporting structures. Almost every large employer’s HR department has fallen in line, but the unfortunate fact is that s*xual harassment is still occurring and going unreported. Sexual harassment should never be tolerated and should be reported to the EEOC within 180 days of the incident. Our firm utilizes the upmost experience and compassion when called upon by clients to enforce their rights and obtaining the desired outcome. If you believe you have experienced or witness s*xual harassment in the workplace, please contact us. [email protected]

Disclaimer: This articles is for information only and does not communicate legal advice or legal opinion.
Sources:
https://www.eeoc.gov/eeoc/statistics/enforcement/s*xual_harassment.cfm
U.S. Bureau of Labor Statistics, Women in the Labor Force: A Databook, Report 1040, available at https://www.bls.gov/cps/wlf-databook-2012.pdf.
Megan Twohey, Weinstein Company Was Aware of Payouts in 2015, N.Y. Times, Oct. 11, 2017, available at https://www.nytimes.com/2017/10/11/business/weinstein-company.html

The following chart represents the total number of charge receipts filed and resolved under Title VII alleging s*xual harassment discrimination as an issue.

10/26/2017

AVOID ADDING INSULT TO INJURY –
HOW TO PREVENT GETTING NO/LOW RECOVERY AFTER YOU’VE BEEN HURT IN AN ACCIDENT

By Anthony J. Coury
NAPIER COURY & BAILLIE, P.C.

Bad News: Being involved in an accident.
Worse News: Being involved in an accident and getting hurt.
Worst News: Being involved in an accident, getting hurt and then failing to recover anything because the other driver and/or you have little or no insurance.

Sadly, a large number of motorists in the State of Arizona drive on the streets and highways with little or minimal insurance coverage. Arizona law only requires a person to carry auto insurance that has liability limits of $15,000 per person and $30,000 per accident. In a situation involving injury, that is not much.

Dealing with insurance issues is a major pain. And most people don’t care to take the time to understand the coverage that they pay for every year through insurance premiums. Completely understandable. However, unfortunately, insurance is a “necessary evil.” And, if you take some brief time to make sure you have the best coverage you can afford, you will sleep better at night knowing that you and your family are protected if something bad happens on the road.

Here’s what you need to do (ASAP):

1. Pull out a copy of your auto insurance Declarations Page so you can review your coverage. (If you do not have it handy, you can get a copy from your agent or the insurance company website.)
2. Make sure that you have satisfactory coverage. I would suggest that law enforcement officers carry $100,000/$300,000 in coverage AT A MINIMUM.
3. Make sure that you have Uninsured Motorist coverage AND Underinsured Motorist Coverage. And those coverages should match the liability coverage dollar for dollar.

If you are concerned that your coverage is too low, contact your agent or consult the insurance company website to see how much higher levels of coverage will cost annually. YOU WILL BE SHOCKED AT HOW LITTLE YOUR PREMIUM WILL INCREASE FOR BETTER COVERAGE.

So . . . . .

Good News: Figuring out your insurance coverage is not that hard.
Better News: Increasing your coverages is easy and does not cost that much money.
Best News: If you feel like you need help making sure your coverage is as good as it can be, the attorneys at Napier Coury & Baillie will assist you with a free consultation. Just call 602-248-9107 to schedule an appointment.

Be safe. And be smart.

08/14/2017

The following article was written by Kathryn Baillie.

Law Enforcement Offrcer Safety Act also known as "LEOSA"
The Law Enforcement Officer Safety Act (LEOSA) was enacted in2004 which allows two classes of persons to carry concealed fi****ms in any jurisdiction in the United States or United States Territories, regardless of any state or local laws that contain exceptions.

The Unites States Federal law of LEOSA is broken into two classes of qualified persons. One is the qualified law enforcement officer who is active and serving as law enforcement and the second is the qualified retired or separated law enforcement officer. Law enforcement officer has been extended to includç correctional officers and military police officers; however, there are specific qualifiers for the LEOSA privilege.
LEOSA does not extend the privilege to machine guns, destructive devices or silencers. It does permit private persons or entities to prohibit or restrict the possession of concealed fi****ms on their property such as bars, clubs and amusement parks and allows state or local government to
restrict or prohibit fi****ms on govemment property, installations, buildings, bases or parks. LEOSA does not cause or grant the LEOSA holder any authority to act or exercise any law enforcement authority when off-duty.

To qualify under the LEOSA Act, 18 U.S.C. 9268, as a Qualified Actively Serving, the applicant must be authorized by law to engage in or supervise the prevention, detection, investigation, or prosecution of, or the incarceration of any person for, any violation of law. They must have statutory powers of arrest or authority to apprehend pursuant to 807(b) of Title 10, United States Code, also known as Article 7(b) of the Uniform Code of Military Justice (UCMJ). They must be authorized by the organization to carry a firearm. They can not be the subject of any disciplinary action by the organization that could result in suspension or loss of police powers. They must meet the organizations standards which require regular firearm qualifications and training. They may not be under the influence of alcohol or another intoxicating or hallucinatory drug or substance. And of course, may not be a prohibited possessor under federal law and 18 U.S.C. 922.

To qualify under the LEOSA Act, 18 U.S.C. 926C, as a Qualified Retired and Separated, the applicant must be separated in good standing from service with the governmental agency or separated from the agency due to a service related disability. They must have been authorized
prior to separation to engage in or supervise the prevention, detection, investigation, prosecution or the incarceration of any person for any violation of law. Before separation they must have had the statutory power of arrest or authority to apprehend pursuant to section 807(b) of Title 10 U.S.C.,also known as Article 7(b) of the Uniform Code of Military Justice (UCMJ).

To qualify to carry a concealed weapon, the applicant must meet the following requirements within the most recent 12-
month period:

(1) Must have met the State's standards for training and qualifications to carry a firearm for active law enforcement offrcers in that state for the same type of weapon as the concealed.
(2) Qualified using the States LEOSA fi****ms qualification course, or
(3) If the State has not established law enforcement officer fi****ms qualification standard the instructor will certify the officer has completed handgun qualification course conducted by a state certified civilian fi****ms instructor using the member's privately owned firearm and personally procured ammunition.

Law enforcement Offîcers who separate from service due to a mental health illness may not qualify as a retired law enforcement officer as described in 19 U.S.C. 926C. Law enforcement officers who have received medical retirement for PTSD may be denied LEOSA due to the
diagnosis. It should also be noted that LEOSA does not exempt qualified active or retired from carrying on an aircraft., cruise ship or train, which are regulated by Federal law.

*****Disclaimer:This publication is provided for your convenience and does not constitute legal advice.

The Law Offices of Napier, Coury & Baillie, PC specialize in Public Sector Employment, Personal Injury and Wrongful Death. We represent public sector employees, injury victims and small employers, not businesses or insurance companies. Our law firm has a well-earned reputation for providing aggressi...

02/27/2017

Do you have an expectation of privacy in the device provided by your public employer? Attorney Eric Wilson discusses the issue in this article published in the Phoenix Law Enforcement Association's Phoenix Law Enforcer. Please read the article, linked below, and let us know what you think.

PLEA March/April 2017