Ohio's Castle Doctrine - Is it Working?

Remember Ohio's "Castle Doctrine?" It essentially provides that one does not need to justify injuring or killing another if it is done in one's home to protect oneself. Under somewhat newly enacted Ohio Revised Code Section 2901.05(B)(1), a person is presumed to have acted in self-defense when attempting to expel or expelling another from their home who is unlawfully present. Further, under the Castle Doctrine, a person attempting to expel or expelling another is allowed to use deadly force or force great enough to cause serious bodily harm. There is also no duty to retreat inside one's home anymore. One Cuyahoga Court of Appeals opinion has addressed this doctrine and found that it did NOT apply in one case - because the victim had previous been invited to the defendant's home (and had on one occassion spent the night). One news oaganization recently addressed some of the criticisms of the new law. We will have to monitor more decisions in the future to see how this law develops.

ER Doctors May Get Immunity from Malpractice Lawsuits

Pending Law in Columbus:

The Ohio General Assembly is considering legislation that would provide "immunity" to all ER physicians and ER medical providers (e.g. nurses and physicians assistants). See
http://www.legislature.state.oh.us/bills.cfm?ID=128_HB_595

Consumer Credit Reports and Employment

Pending Law in Columbus: The Ohio General Assembly is considering legislation that would bar employers from using consumer reports for employment purposes. See http://www.legislature.state.oh.us/bills.cfm?ID=128_HB_586.

Stay tuned to our blog to see how this develops.

Search Warrants and Cell Phone Locations

A Federal Court has recently held that Big Brother (the Federal Government) may need to get a search warrant in order to get cell phone data which will tell the Federal Government just where a certain individual was on a certain date and time. In the case of In re the Application of the USA, Electronic Communication Service, the Third Federal Circuit Court of Appeals has ruled that Federal prosecutors may need to obtain a search warrant when they are attempting to gain cell phone location data. This is another recent Federal Court ruling in the area of criminal investigation and prosecution where Federal "privacy" Constitutional issues collide with ever emerging technology. The Court had to address and discuss how a person's physical cell phone location (which is technically digitally recorded most times a person is on the phone) is considered Constitutionally private. Even more specifically, the Court had to address how a federal statute (which the Federal prosecutor's claimed gave them the ability to get the cell phone location data without a warrant) may conflict with the Federal Constitutional right to privacy. In short summary, the Court held that if the records are deemed to be Constitutionally protected, then, regardless of the federal statute, the federal government must get a search warrant (and, accordingly, prove that there is "probable cause" to believe there was evidence of crime to be gathered). However, the Court also then held that the cell phone location data may not be protected by the Constitution in most cases, and that in order to get that data, the Federal Government will probably not have to meet the "probable cause" standard. This case will not end the debate in this area, but it does a good job at discussing issues that arise when new technology meets a very old Constitution. More cases and rulings are expected to follow, and we will try to keep you all informed.

What is a "trade secret" and how can it result in a lawsuit

Ohio has what is a called a "trade secret" statute - a statute that seeks to define and control valuable sensitive information that businesses take time to develop and protect. Contractors and employees of business that own these trade secrets can sometimes use or even steal that data (called "misappropriation") - and such misappropriation can often lead to litigation. Often trade secret litigation can involve what are called "temporary restraining orders," which are orders issued in the very beginning of a lawsuit (vs. at the end of the lawsuit) to control the activities of individuals while the lawsuit is pending. When a trade secret lawsuit is first filed, the owners of trade secrets look to have a court essentially restrain the alleged users or thieves from using that data while the lawsuit is pending. The ultimate relief sought in the lawsuit is usually damages and/or a permanent injunction forever barring the defendants from possible (or further) appropriation of the data.
However, in order for something to constitute a "trade secret," the data must actually be valuable (having what is called "ascertainable" value) and the owner of that data must take "reasonable efforts" to keep that data secret.
Business owners need to take specific steps to develop and protect their trade secrets, which includes written provisions in contracts for all of those who come into contact with the data. These contracts need to identify just what the protected information is, and those contracts should also include provisions where the persons coming into contact with the data consent to litigation restraining orders and specifically set amounts of damages for any attempts at improper use or theft of that data.

Stay in the Car Dude

The Cuyahoga Court of Appeals has recently affirmed the "obsructing of official business" conviction of a speeding motorist. In Broadview Heights v. Stovall, the Court held that a jury could convict a motorist of obstruction of official business [in Broadview Heights called "interference with an enforcing official"] for simply getting in and out of her car and screaming at police during a traffic stop. The Court made it clear that Ohio law does permit a police officer to demand that a motorist "remain in the vehicle" while the officer has the motorist stopped on the side of the road. Although it would not have been enough to convict a person of simply yelling an obscenity at a police officer for writing a ticket, this woman took it all to a whole new level. We suggest you click on the case caption to read these facts. This gal's action were so over the top, the trial judge gave her 30 days after the jury verdict - although she could have gotten 180.
Our advice, stayin the car dude.

Actus Reus vs. Mens Rea

In an August 27, 2010 decision, the Ohio Supreme Court addressed the difference and the application of two important legal terms/doctrines that apply in all criminal cases: "actus reus" and "mens rea." Whenever a defendant is prosecuted and tried for a crime, the prosecutor must prove both that the defendant engaged in statutorily prohibited conduct (Latin: "actus renus") and that the defendant had a specific metal state (Latin: "mens rea") in violating that statute. The four mental states under Ohio law are: (i) negligently, (ii) recklessly, (iii) knowingly and (iv) intentionally. [Please note that this article will not discuss the definitions of those four terms - that may be the subject of a later article]. What the Court held in its recent decision of State v. Horner was that when an indictment charges a defendant with a violation of a criminal statute, that indictment does not necessarily have to set forth the applicable mental state in the text of the indictment - the text of the indictment just has to tract the criminal statute in such a way as to put the defendant on notice of the charges against him/her. The Court also held, as an additional matter, that when s specific criminal statute does not specifically set forth the required mental state (i.e. the "mens rea"), then the default mental state (for the most part) is going to be "recklessly."
This recent decision essentially overturned a 2008 Ohio Supreme Court of Ohio decision that lead to a large amount of confusion and motion practice by defendants who claimed that their indictments were defective because the indictment did not specifically set forth the applicable mental state. What we have here, practically speaking, is a 2010 decision that overruled a 2008 decision - something that is very unusual for the Ohio Supreme Court (given the fact that essentailly the same judges that were involved in the 2008 decision were also involved with this recent decision). We guess that, to use an old phrase, the 2008 decision sounded like a good idea at the time, but that the substantial amount of motion practice by defendants arguing the technical application of the 2008 decision resulted in the Ohio Supreme Court saying, let's think about this again.

Pregnancy does not trump normal leave policy

The Ohio Supreme Court has recently ruled that a pregnant woman does not have any special exception to a company policy which holds that an employee must be employed for 6 months before they can obtain any leave from their employment. In the case of McFee v. Nursing Care Mgt. of Am., Inc., the plaintiff was employed by a nursing home company that had a policy that stated that all employees had to be on the job for at least 6 months before they were entitled to any paid leave. However, the plaintiff ended up getting pregnant before she was employed for 6 months, and when the employer would not give her pregnancy leave, she sued the employer claiming that she was being discriminated against for being a woman. The lower appellate court held that Ohio law required all employers to provide all employees with a reasonable period of time for maternity leave - and thus held that the nursing home had discriminated against the plaintiff. However, the Ohio Supreme Court held that because the employer had a gender neutral policy which required that all employees be on the job for at least 6 months before they get any leave, the fact that the employer would not give the plaintiff maternity leave did not constitute sex discrimination.

Woman (and for that matter - men) need to read their employee manual when they accept a new job.

Points and Traffic Offenses

As most folks know, traffic violation convictions get you what are called "points" under Ohio law, and these points can add up and (1) increase your insurance rates and (2) result in the suspension of your driver's license (if you get 12 points). Some driving convictions can result on more than the standard 2 points - like reckless operation (4 points), driving under a suspended license (6 points) and DUIs (6 points). Many drivers hire experienced traffic lawyers to go to court for them to see if they can negotiate a reduction from a "point" violation to a "no-point" violation. Many drivers can't suffer the consequences of getting points in light of their specific job, or because they already have too many points already and can't suffer the consequences of a license suspension - or because their insurance rates are too high already. The decision or policy involved with any plea negotiations varies from courthouse to courthouse - and getting a lawyer that knows the local custom can be important. There are now new rules concerning how a person can take care of their traffic cases without even coming back to court (see blog entry dated April 11, 2010 - "New Changes in Ohio Traffic Rules"). Make sure you or anyone you know who has to go to court over a traffic violation has a lawyer who is familiar with these new rules.

Hearsay Statements of Child Victims

In a case that will impact a large number of child molestation cases, the Supreme Court of Ohio placed a limit on the type of "hearsay" statements of children that a prosecutor may present at child molestation trial. "Hearsay" is when person A comes to court and testifies about what person B said on a previous occassion. Most hearsay statements are prohibited from being admitted at trial - but some very specific types are. In State v. Arnold, the Ohio Supreme Court stated that only some of the hearsay statements of child victims come in at trial - those that a child states to a medical professional for medical purposes. Child victims are often interviewed by medical professionals in the context of a police investigation in order to assess their injuries. These are the type of hearsay statements that a prosecutor may use at trial - an essentially no others. This ruling will require police and prosecutors to be much more careful about who asks questions and what topics those persons cover during interviews of child victims. Regardless of what non-legal types may presume, these are always awful cases to investigate and defend - and this ruling makes the rules about how these uncomfortable cases are presented at trial.

Texting at Work is No Longer Always Private

In one of the more closely watched U.S. Supreme Court cases involving emerging technology in some time, the U.S. Supreme Court issued a decision involving what is easily becoming one of the most often used methods of communication: text messaging. In City of Ontario v. Quon, the Court held that text messages sent on a text device issued and paid for by a governmental employer (in this case, the City of Ontario, California), are not nessarily private and can be possibly read by the employer. Although this is the first case where the Court actually dealt with what is now this common form of communication, the decision was very fact specific (the U.S. Supreme Court is often very careful to select cases where the particular facts will result in a very narrow ruling - as they did here). The Court based its decision on an analysis of the Fourth Amendment, and whether the search of the text messages was "reasonable" - using many of the same factors it uses in determining whether other searches violate the Constitution: was the search legitimate, was the search reasonable and limited in scope. In this case, the City handed out personal messaging devices to its workers, called a meeting to put limits on their use, and told the workers that their e-messages are going to be monitored - so the Court felt that under these circumstances there was no violation of the Fourth Amendment. The Court was hesitant to issue a broader technology-based opinion given, in their opinion, how quickly and often technology changes. The Court stated:

"Rapid changes inthe dynamics of communication and information transmission areevident not just in the technology itself but in what society accepts asproper behavior. At present, it is uncertain how workplace norms,and the law’s treatment of them, will evolve."

As a pratical matter, we are not sure how this opinion specifically applies to (1) the private workplace and (2) governmental workplaces were "big brother" overly monitors everything - and we think that the Court wanted it that way. Nevertheless, any employer, both private and governmental, should have clearly defined "reasonable" text and email policies in place in order to prevent any employee from claiming that their rights have been violated, and all employees should either have their own communications device or assume that what they put on their employer's device can and will be read by the employer.

The Big Police Speeding Case

Last week, the news and printed media reported extensively about the Ohio Supreme Court's holding that police officers can pull someone over (and prosecutors can convict if necessary) by using, essentially, their visual estimate of speed. In Barberton v. Jenny, the Ohio Supreme Court said it was constitutionally permissible to have an officer with the proper amount of training and certification to competently testify about a driver's rate of speed - without the necessity of a radar or laser gun or without the use of a technique called "pacing" (where the officer follows a driver for a certain distance "pacing" his or her speed) or airplane spotting. The Court said there was no constitutional prohibition on this visual estimate as long as the officer had the necessary training and certification. The Supreme Court of Ohio overruled the position held by the Cuyahoga County Court of Appeals, and has issued a decision that is not setting very well with the general public. As a practical matter, most police departments will not use this method of speed detection. The writer of this blog has yet to speak to a single police officer who says they intend on trying this new method out. Ohio stock in laser and radar equipment may take a dive if this method becomes popular.

Barry Bonds and Lab Results

In a recent case out of the federal Ninth District Court of Appeals, a federal appeals court held that the federal government is not permitted to merely submit blood and urine lab reports and present hearsay testimony of a lab employee - instead of presenting the actual person (Bond's trainer Greg Anderson) to whom Bonds gave his blood and urine samples. Given the fact that Mr. Sanderson invoked his Fifth Amendment right to not testify (he may have imlicated himself in a crime too), the Government was faced with having to have just the lab employee testify and have the lab results introduced as a sort of replacement for the testimony of Sanderson. However, the Court in United States v. Bonds stated that this was hearsay, and the Government could not use this method instead of the testimony of Mr. Sanderson. It is now assumed that the Government will have a much more difficult time in their ongoing prosecution of Mr. Bonds. We'll have to see what happens next.

Sex Abuse and Repressed Memories

The Ohio Supreme Court recently made still another pronoucement that Ohio Courts will not invade the intent of the Ohio General Assembly when it passess legislation. The Ohio Supreme Court has made it clear in a number of its decisions in the last 5 years that it will strictly enforce statutes enacted by the Ohio Generally Asembly - and refuse to apply any interpretation not specfically set forth in those statutes - what some folks call "activists judges." Effective Aug. 3, 2006, the General Assembly enacted R.C. 2305.111(C), which created a 12-year statute of limitation for persons who had been molested while they were under the age of 18. Essentially, once a person reached the age of 18, they had to remember any repressed memories of being molested, and then sue the legally liable person(s), before they reached the age of 30 (i.e. 18 years plus the 12 years). In Pratte v. Stewart, the Ohio Supreme Court made it clear that even a person who legitimately had repressed memories beyond their 30th birthday could not sue their attacker because that person had not rembered and sued before their 30th birthday. The Court said that since the new statute did not provide for any exceptions, they would not create one. Although this case invovled the statute of limintations on child molestation cases, it appears for the time being that the Ohio Supreme Court has taken a very strict "separation-of-powers" position - saying that if the Ohio General Assembly has not enacted a specific law, then that law essentially does not exist. This judicial philosphy is something we will be monitorings in the future.

New Changes in Ohio Traffic Rules

Effective January 1, 2010, Ohio has modified some of the rules that effect how traffic citations and traffic court cases can or must proceed. Michael O'Shea is a part-time City Prosecutor for the City of Rocky River, and he recently gave a summary presentation of these amendments to the rules to all of his fellow city prosecutors from other cities in Cuyahoga County. First, the Ohio Uniform Traffic Ticket (the ticket form used by police to write all tickets- even DUI tickets) has been modified to include a place for an officer to write down prior DUI offenses (if it applies), and the ticket no longer will include all portions of the social security number of the defendant (in order to preserve identity information for each defendant).

Second, now a defendant can post bond when a ticket is written, and instead of coming back to court, that bond, with the permission of the defendant, can be applied to pay all fines and costs in the absence of the defendant. In this way, an out of state defendant does not have to travel back to the Ohio court from where the ticket issues. Some parts of the amended rules even allow a defendant to plea, as it is called "in abstentia," even when it comes to DUI offenses - as long as the judge and the prosecutor agree. You may begin to see some police forces and traffic courts require all out-of-the-area traffic defendants to post larger bonds - even for minor traffic offenses.

Third, courts are now permitted to arraign and take pleas from traffic defendants by giving a general speech (in writing or otherwise) to the entire group of defendants in the courtroom - rather than having to essentially give the same speech to each defendant individually. This will allow large number traffic arraignments and pleas to move along much more quickly.

These amendments are designed to address some of the problems that have slowed down the traffic courts for years.

Improper Use of Prior DUIs in Subsequent Prosecutions

The Cuyahoga County Court of Appeals has recently issued an opinion that bars the use of prior DUI and driving-under-suspension ("DUS") convictions if the purpose of the prior DUI and DUS convictions is to support a claim that the defendant was intoxicated in the current prosecution. In the case of State v. Greer, the prosecution attempted to use the fact that the defendant had been previously convicted of a number of other DUI and DUS crimes - but only did so because the prosecution had no medical evidence of the current alleged driving while intoxicated event. The Court held that where the defendant claims that he was not intoxicated at all, the State cannot use the prior DUI and DUS cases to prove that he was. Most prosecutors would have never put this one to the test. So this decision is not surprising.

What Exactly Does a "No Contest" Plea Mean?

The Ohio Supreme Court has recently made it clear that if a defendant enters a "no contest" plea in a criminal case (and is found guilty as almost all are after they enter the plea), the fact that the defendant entered that plea (and the resulting conviction) cannot be used in any subsequent civil case. No contest pleas are often entered by defendants in criminal cases rather than "guilty" pleas. These "no contest" pleas are seen by many defendants as a softer version of a guilty plea, and some courts had held that Ohio law also barred the use of a "no contest" plea in a subsequent civil action involving the defendant (for example, where the defendant is sued for the damage the defendant did in his criminal actions). In Elevators Mut. Ins. Co. v. J. Patrick O’Flaherty’s, Inc., the Ohio Supreme Court made it clear once and for all that "no contest" pleas cannot be used in subsequent civil cases involving the same activity by the defendant. The Court reasoned that: "“The purpose behind the inadmissibility of no contest pleas in subsequent proceedings is to encourage plea bargaining as a means of resolving criminal cases by removing any civil consequences of the plea. ... The rule also protects the traditional characteristic of the no contest plea, which is to avoid the admission of guilt. The prohibition against admitting evidence of no contest pleas was intended generally to apply to a civil suit by the victim of the crime against the defendant for injuries resulting from the criminal acts underlying the plea." This decision resolved a number of conflicting decisions for the lower courts of appeals. We assume we will see much more use of the no "contest plea" in the future.

Our Recent Success with Ohio Court of Appeals in a Lead Poisoning Case

One of the areas where we regularly concentrate our practice is in the area of lead poisoning. We often have to deal with a number of ongoing defenses and appeals by landlords and their lawyers in the processing of these claims. One of Cuyahoga County's biggest landlords is the Cuyahoga Metropolitan Housing Authority ("CMHA"). CMHA is suppose to provide safe residential housing for low income persons and families. However, many children living at CMHA owned units regularly get poisoned by deteriorating lead paint - lead paint that Ohio and federal law require not be in a deteriorating state. Notwithstanding the fact that the Ohio Supreme Court has made it clear that the doctrine of "sovereign immunity" (i.e. the doctrine that says cities, counties and the State of Ohio, for the most part, cannot be sued for negligence) does not apply to injuries that occur in buildings or on grounds of governmental buildings, CMHA attempted to argue that they were immune for any lead poisoning injuries to small children. However, the Cuyahoga County Court of Appeals rejected that argument in Bozeman v. CMHA and held that CMHA does have to defend cases involving lead poisoning injuries. The case is now back at the trial court for further proceedings. Once again, stay tuned for details.

Our Recent White Collar Defense Case

We recently got done (for now) with a white collar defense case where the Federal Government alleged that a former attorney had engaged in what is called a "Ponzi Scheme." Many hours went into the review of thousands of pages of tax, bank and other financial documents which the Government claimed supported their case. Dealing with the Federal Government can be complicated - but dealing with the prosecution by the Federal Government of a lawyer is very complicated. Lot's of personality. Anyway, on the date of trial, we and the Federal Government were ready to get the trial started, but the client/lawyer got wedding day jitters and did not show for trial. The Government's agents are currently looking for our client, so his case is not yet over. Once again, stay tuned for details.

Ohio Supreme Court Declares New Workers' Compensation Statute Constitutional

In what has been an ongoing battle at the Supreme Court of Ohio for the last decade or more, the Supreme Court of Ohio has found the newest version of the "intentional tort" section of the Workers' Compensation statute to be constitutional. In Kaminski v. Metal & Wire Products Co. the Court held that the General Assembly's most recent version of a law that gives greater protection to employers is, notwithstanding the holdings of previous panels of the Supreme Court of Ohio, constitutional. In Ohio, in order for an employee to sue an employer that causes an on-the-job injury to the employee, the employee, under the new law, must prove that the employer acted “with a deliberate intent to cause injury.” If the employee cannot prove that, then, regardless of the employer's negligence or the employee's injury, the employee is regulated to whatever he/she can get paid by the Bureau of Workers' Compensation. This ruling is the latest stage of an ongoing battle between forces who want to make it harder to sue employers for serious and reckless workplace injuries and those who believe that taking away an employee's right to sue for serious and reckless workplace injuries is a violation of the Ohio Constitutional "trial by jury" clause. The ongoing debate has to do with whether allowing more protection for employers will, in essence, indirectly encourage more injuries or death. We see this as just another stage of what will most likely be an endless battle between the forces behind business interests and the forces behind worker protection. Stay tuned - and be extra careful at work.