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Marc Manos, of the TIPS Council, monitors the Fourth Circuit Advance sheets and selects cases that might be of interest to tort or insurance practitioners.

Case No. 19-1383 (4th Cir. Oct. 2, 2020) (Published). GOVERNMENTAL TORT/CONSTITUTIONAL VIOLATION 42 U.S.C. 1983 deliberate indifference and S.C. Tort Claims Act negligence and gross negligence in the operation of a police vehicle. Denial of summary judgment on qualified immunity affirmed. Deputy Sheriff in Anderson County began responding to a Code Three incident to aid another deputy allowing law enforcement to exceed speed limits and ignore certain traffic laws so long as siren and emergency lights are activated (there are some exceptions to use of lights and siren, not applicable to this case). Shift supervisor canceled Code Three and ordered a "normal run" response where officers must abide by all traffic laws. Responding deputy turned off emergency lights and siren and two minutes later lost control of the vehicle, crossed the center line, and while traveling at least 83 MPH in a 45 MPH speed limit area hit Plaintiff's ward nearly head on causing severe orthopedic and neurological injuries. Under these facts, the deliberate indifference standard guides whether the officer is entitled to qualified immunity. County of Sacramento v. Lewis, 523 U.S. 833 (1998). The cancellationof the emergency two minutes and fifteen seconds before the collision, the Defendant's acknowledgement that the Code Three was now a non-emergency Code One, and turning off the emergency warning lights and siren established that the District Court properly selected the deliberate indifference standard, rather than intent-to-harm. As a reasonable jury could conclude under the facts that Defendant operated the police vehicle in a dangerous and reckless manner with knowledge of the risks involved. The facts included that Defendant received remedial training for earlier vehicle operations violations of policy. Thus summary judgment should have been denied on qualified immunity for the due process violation claims. The requirement to non-recklessly operate a police vehicle is well established the District Court property denied summary judgment on that ground as well. Finally, the Parratt-Hudson doctrine only applies to procedural due process claims where state law provided post-deprivation remedies, not to substantive due process claims like this one. See Parratt v. Taylor, 451 U.S. 527 (1981), overruled in part on other grounds, Daniel v. Williams, 474 U.S. 327, 330 (1986); Hudson v. Palmer, 468 U.S. 517 (1984).

View case here.

Case No. 18-722 (4th Cir. Oct. 13, 2020) (Published). GOVERNMENTAL TORT/CONSTITUTIONAL VIOLATION/RETALIATION. Prisoner filed First Amendment retaliation claim against prison officials who placed prisoner in isolation pending investigation of his claim a guard sexually assaulted him. District Court found prisoner stated a claim, but granted prison official summary judgment because prison officials established they would have made the same decision absent the protected conduct for reasons related to a legitimate prison interest. The Court of Appeals held, in a case of first impression in the Fourth Circuit that the employment law same-decision test of Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977) applied to 42 U.S.C. 1983 prison First Amendment retaliation claims. There is a split in the circuits on this issue. The Court went on to reverse, however, because a material question of fact existed as to whether the prison official would have placed the Plaintiff in segregation absent a retaliatory motive.

View case here.

Case No. 19-1702 (4th Cir. Oct. 21, 2020) (Unpublished). GOVERNMENTAL TORT/CONSTITUTIONAL VIOLATION/GENDER DISCRIMINATION. Male high school student accused by three female students of inappropriate sexual comments and touching suspended then transferred sued for gender discrimination under Title IX and free speech violations under First Amendment and Virginia Constitution. Summary judgment for defendants affirmed. Under erroneous outcome theory, Plaintiff could not prevail because his admissions on record prevented a material issue of fact as to his actual innocence. Under selective enforcement, Plaintiff came forward with no evidence of record to create a material issue of fact that anti-male bias animated the proceedings. Further, he received the due process required for school disciplinary action. The school setting grants school officials broader, but not unlimited, power over speech. Speech disruptive to the work of the school or vulgar and offensive speech that contradicts the teaching fundamental values of civility, may be disciplined.

View case here.

Link:
October 2020 Fourth Circuit Torts and Insurance Cases of Interest - JD Supra

Publishers note: I know it is unthinkable that my column today isnt about the election results, but it is not. Let me explain. Due to circumstances beyond my control, I was in the Carolinas this week visiting with both of my daughters and my grandbaby Evie. I certainly wouldnt have scheduled the trip during election week if it had totally been up to me, but it was not. When multiple schedules are involved, compromises must be made and they were.

Now, I probably could have ripped off a quick column while on vacation, but doing so in regard to an election that will decide the fate of the country for generations to come seemed like a bad idea, so I simply decided it would be better to devote my undivided attention to it when I return. So you will be reading about that next Saturday. But this column, which I wrote before I left last Friday, is important too.

When Greg Burroughs started suing people and entities after he was found not guilty in his manslaughter trial, quite frankly, we were shocked when we somehow escaped being served ourselves. But soon, it became apparent why we hadnt been served. We werent being sued because Burroughs attorney planned on making our coverage his main evidence and our Editor-in-Chief Mark Thornton his main witness in his case against the City of Laurel and Laurel police officers.

Burroughs and his attorney would never be able to successfully sue us anyway, because what we reported was accurate. So, instead they went after the City of Laurel and LPD officers because they say we shouldnt have been privy to details such as Burroughs failing his lie-detector test.

Just because Burroughs didnt name us in the lawsuit, though, doesnt mean that he didnt get his chance to punish us financially. When we found out that the Burroughs case revolved mainly around our coverage and that Mark was being deposed and asked to give up his sources, it was definitely a blow. Mark and I discussed our options, and there just werent many good ones. We knew right away that, no matter what, we couldnt and wouldnt give up any sources. It would mean the death of any quality reporting that this newspaper could ever do again. Think about it: Why would anyone ever trust us again? Certainly no one would ever feel comfortable sharing information with us again, and I wouldnt blame them.

Without hesitation, Mark and I decided that there is no way we could or would ever give up a confidential source for any story, not just this one. I know a lot of you are saying, Well, that was an easy decision for you, as it would be Mark whose butt would be sent to jail. And, yes, there have been miscarriages of justice where reporters have been sent to jail for this exact reason. (Two of the more well-known cases include, in 1972, Los Angeles Times reporter William Farr was jailed for 46 days for refusing to identify sources for an article he wrote about the Charles Manson trial. In 2005, New York Times reporter Judith Miller served 85 days for failing to disclose a source in a story about the Plame Affair.)

But believe me, this decision wasnt easy for me either. First and foremost, Mark and I have been through so much together over the past 15 years, we are more like family than colleagues. And, secondly, if you can compare the Leader-Call to an automobile, it takes everyone who works here to make this vehicle run smoothly, but no doubt about it (and I think every single person who works here would agree), Mark is the engine of our Coupe de Ville. Nonetheless, we still knew that even if Mark had to make the ultimate sacrifice (and give him all the credit for this because he was willing) there was simply no way we were going to give up any sources.

Knowing that Marks butt (literally and figuratively) was on the line left us with little option but to hire the best attorney we could to represent him, no matter the cost. Im sure Burroughs took delight in knowing that we were going to have to spend thousands of dollars on legal representation. I share the profits of this company with my employees, so he didnt just hurt Mark and me, but every person who works here. But here is what I know about the people who work here: every one of them would not only have offered to give up their Christmas bonus to help defend Mark and the paper in this case, but they would have dug into their own savings to chip in if it would have been necessary.

Everyone who works here knows that if it hadnt been for the Leader-Call, Katherine Sinclairs death would have been quickly swept under the rug as a suicide. She never would have had any opportunity at justice, and they are proud of our coverage and dedication in trying to uncover the truth.

They are also proud of Mark for standing tall and strong on principle in this case. Burroughs attorney Daniel Waide was shot down twice and a magistrate and judge upheld a reporters qualified privilege under the First Amendment was upheld in federal court. This was not only a win for the Leader-Call, but a win for the First Amendment of the Constitution. And since Mark was the main witness in this case, it was a win for the City of Laurel and the LPD as well.

In the end, Greg Burroughs cost us, as well as taxpayers in the City of Laurel, a lot of money. But in doing so, he also exposed even more damning information about himself. Its hard to imagine that this vindictive lawsuit was worth it to him, but who knows what goes through the mind of someone who takes the time to call a friend before dialing 911 immediately after his girlfriend gets shot in the head in his garage? Ill never understand it, and Im sure most of you wont either.

Burroughs may have cost us money, but by all accounts, he is still a loathsome human being. To this very day, we still have never heard anyone say a nice word about him. Weve had people tell us he was innocent or that we mistreated him in the paper, but even those people couldnt say anything nice about the man himself.

In contrast, Mark Thornton emerges from this next chapter in the Burroughs saga as a hero. Mark was willing to pay whatever price was necessary to keep a promise he made to every individual who has ever acted as a confidential source. Thornton is a champion of the First Amendment and a true warrior who was willing to sacrifice himself to protect others.

I cant help but get the sense that Marks efforts made Katherine Sinclair look down from heaven and smile.

Jim Cegielski is publisher of the Leader-Call. He lives in Laurel.

Original post:
A win for Laurel, the LL-C and the First Amendment - leader-call.com

Dear Mr. President: Congratulations on your election victory.

Thats a non-partisan congratulations. The First Amendment, with its 45 words encompassing our core freedoms of religion, speech, press, assembly and petition, doesnt take political sides.

The year 2020 has seen a dramatic increase in the ways our fellow citizens are using the First Amendment. Theres every reason to believe 2021 will be more of the same.

By this Election Day, a record number of us exercised our right to vote, the ultimate expression of our rights to petition the government.

Years of simmering injury, insult and resentment over blatant and hidden racism have boiled over into a wave of public protests, prompted by the repeated deaths of Black men and women at the hands of police officers, and rooted in economic and social systems that people of color see as tilted against them

The national crisis that is COVID-19 is tearing at the very fabric of daily life and even as it hammers everything from employment numbers to how we sometimes can say farewell to the dying, the pandemic is sparking street demonstrations for and against health measures like masks and business shutdowns.

I write to ask that as you consider your election victory, you keep these First Amendment considerations in mind using the order of the five freedoms, to help organize your thoughts.

Religion in the U.S. today covers a remarkably diverse form of beliefs and practices, unique in the world. Understandably, that creates ongoing conflict as overall social values and individual matters of conscience collide. Some call this a culture war. I hope you will think of it as does my Freedom Forum colleague, Dr. Charles Haynes: An opportunity to find common ground focusing on those places where we do agree, even as we recognize and celebrate our differences.

What of free speech? For nearly a century, most battles around this freedom focused on whether or not government could restrict or punish individuals for their speech. In this next presidential term, the focus will be on relatively new ideas: There are ideas, words or symbolic actions that are too dangerous to be heard, or that the right to speak includes a right not to listen or to be protected from even hearing.

Please keep in mind that ideas are not eliminated by silencing those who give voice to them. More speech, in more ways, is the better path. It is a proper government role to find ways to encourage diversity of thought, but not to become a national nanny or worse, an autocratic censor deciding what we should see, read and hear.

The next generation will be ill-served to face an assuredly contentious world if they arent aware of a range of ideas, concepts and creeds. A need to reinforce the key positive ideals of our society for the future must include free discussion of where we have fallen short in word, actions or law in the past.

A free press is being challenged by the triple tag team of economic loss, public mistrust and new competition. An attendant casualty has been our collective belief in truth or at least accepted facts based on solid journalism, not punditry across a myriad of new information sources.

You dont have direct responsibility to make journalism better, but things are so dire you and Congress may be needed to help ensure we have any effective journalism at all.

The number of local news outlets is plunging and news deserts in which no local news media exists are growing. The watchdog-on-government role of a free press so vital to the informed citizenry needed by a democracy cannot be allowed to simply evaporate.

The unthinkable for free press advocates of not long ago tax breaks, operating subsidies, support for public journalism as we have seen for public television and radio may well become over the next four years unavoidable.

What we do know, based on annual surveys the Freedom Forum has done since 1997, is that most of us support that watchdog duty. Work with that consensus.

Assembly and petition have had rebirths. When frustrated, Americans always protested, on our streets and now online. Your responsibility here starts with listening even when others are shouting.

Yes, you must respond to those who go outside First Amendment protections into violence. But those responses must be tempered by the recognition that peaceful dissent is democracy, not disloyalty.

I write knowing you and the nation face many challenges. But I also write with the profound hope that this letter will be a reminder that these core freedoms empower all of us to freely talk with each other in many different ways, with a goal of determining the best possible solutions for the greatest number of people, in the shortest amount of time. The First Amendment doesnt require or provide for perfection, but it fuels democracy.

With that spirit in mind, good fortune in the next four years.

Gene Policinski is a senior fellow for the First Amendment at the Freedom Forum, and president and chief operating officer of the Freedom Forum Institute. He can be reached at gpolicinski@freedomforum.org, or follow him on Twitter at @genefac.

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On behalf of the First Amendment | Opinion | dailyitem.com - Sunbury Daily Item

Plaintiffs CDK Global LLC and Reynolds and Reynolds Company develop, own, and operate proprietary computer systems known as dealer management systems ("DMSs") that process vast amounts of data sourced from various parties. Automotive dealerships hold licenses to DMSs to help manage their business operations, including handling confidential consumer and proprietary data, processing transactions, and managing data communications between dealers, customers, car manufacturers, credit bureaus, and other third parties. Plaintiffs contractually prohibit dealers from granting third parties access to their DMSs without Plaintiffs' authorization.

In March 2019, the Arizona Legislature passed the Dealer Data Security Law . The Dealer Law regulates the relationship between DMS licensers like Plaintiffs and the dealerships they serve. Under the Dealer Law, DMS providers may no longer "[p]rohibit[] a third party [that has been authorized by the Dealer and] that has satisfied or is compliant with current, applicable security standards published by the standards for technology in automotive retail [ (STAR standards)] from integrating into the dealer's [DMS] or plac[e] an unreasonable restriction on integration."

The Dealer Law also requires that DMS providers "[a]dopt and make available a standardized framework for the exchange, integration and sharing of data from [a DMS]" that is compatible with STAR standards and that they "[p]rovide access to open application programming interfaces to authorized integrators." Finally, a DMS provider may only use data to the extent permitted in the DMS provider's agreement with the dealer, must permit dealer termination of such agreement, and "must work to ensure a secure transition of all protected dealer data to a successor dealer data vendor or authorized integrator" upon termination.

Plaintiffs have sufficiently alleged that the Dealer Law abridges their freedom of speech by requiring that Plaintiffs draft code to facilitate disclosure . It is well-established that "computer code, and computer programs constructed from code can merit First Amendment protection." Universal City Studios, Inc. v. Corley (2d Cir. 2001); see also United States v. Elcom Ltd. (N.D. Cal. 2002) ("[c]omputer software is speech that is protected at some level by the First Amendment").

However, not all code rises to the level of protected speech under the First Amendment. Rather, there are "two ways in which a programmer might be said to communicate through code: to the user of the program (not necessarily protected) and to the computer (never protected)." Further, even where code communicates to the user of a program, it still may not constitute protected speech under the First Amendment if it "commands 'mechanically' and 'without the intercession of the mind or the will of the recipient.'"

Plaintiffs have sufficiently alleged that the code they must draft to comply with the Dealer Law communicates substantively with the user of the program. The Amended Complaint alleges "Plaintiffs must draft code to receive and respond to requests from 'authorized integrators' who will interact with the code by commanding it to communicate the information they choose to request." It also states that the code will express the creative choices of the software developers and communicate those choices "to those who would access the Plaintiff's DMSs, as well as to other third-party programmers." Taken as true, these allegations sufficiently allege a protected interest in the content of the code.

Defendants argue the Dealer Law cannot compel speech because it does not dictate what Plaintiffs' code must say, only that dealers must adopt a framework to share data from their DMSs. Ariz. Rev. Stat. Ann. 28-4654 (requiring that Dealers "[a]dopt and make available a standardized framework for the exchange, integration and sharing of data from dealer data systems with authorized integrators and the retrieval of data by authorized integrators using the star standards or a standard that is compatible with the star standards."). They contend that, by mandating only access, the Dealer Law regulates Plaintiffs' conduct, not speech.

Corley acknowledged this possibility, clarifying that the mere "functional capability" of a code did not implicate First Amendment Protection. But Plaintiffs' allegations go beyond the functional capability of their code because they claim users will interact with their program in a substantive way. Defendants' arguments that the Dealer Law is more properly considered a regulation on conduct therefore amount to disagreements about the factual consequences of the law and the drafted code. Such a contention cannot be resolved at the Motion to Dismiss stage.

{Moreover, the mere assertion that the law regulates conduct does not establish failure to state a claim under the First Amendment. Even where a law is aimed only at conduct, an incidental burden on speech triggers scrutinyit must be "no greater than essential." Rumsfeld v. Forum for Acad. & Institutional Rights, Inc. (2006) (finding that a burden is no greater than essential when "neutral regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.").}

I'm not sure what I think about this, but I thought some of our readers would find it interesting.

Go here to see the original:
The First Amendment and Mandated Creation of Computer Code - Reason

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Instruction

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When First Amendment expression crosses the line to intimidating election workers - AZFamily