Virginia Enacts Standards to Protect Workers from COVID-19 Exposure

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By:  Jayna Genti

Virginia is now the first state in the nation to enact mandatory workplace safety rules to prevent the spread of COVID-19.  The Emergency Temporary Standard (“ETS”) for Infectious Disease Prevention took effect July 27, 2020.  The new standard covers most private employers in Virginia, as well as all state and local employees, and will be enforced by Virginia Occupational Safety and Health (“VOSH”). Employers that fail to comply with the new rules face fines of up to $13,494 for a “serious” violation and up to $134,937 for a “repeat” or “willful” violation.

Scope and Approach of the New Rules

The new temporary standards mandate that workers be provided with personal protective equipment and sets parameters for businesses to sanitize their worksites, enforce social distancing protocols, and implement infectious disease preparedness and response plans.

“Workers should not have to sacrifice their health and safety to earn a living, especially during an ongoing global pandemic,” Gov. Ralph Northam said. “In the face of federal inaction, Virginia has stepped up to protect workers from COVID-19, creating the nation’s first enforceable workplace safety requirements. Keeping Virginians safe at work is not only a critical part of stopping the spread of this virus, it’s key to our economic recovery and it’s the right thing to do.”

The ETS takes a layered approach to employee protection depending on each job’s exposure risk level and includes:

  • Minimum requirements that apply to all employers;
  • Enhanced requirements for employees in “medium” exposure risk jobs, such as commercial transportation, daycare, restaurants and bars, grocery stores, factories, construction, retail, salons, dentist offices, and gyms; and
  • Enhanced requirements for employees in “very high” or “high” exposure risk jobs, such as in laboratory or medical settings involving known or suspected COVID-19 patients or employees who provide healthcare or first responder services involving known or suspected COVID-19 patients.

Office Environments

Most office work environments will fall under the category of “lower” exposure risk since employees can avoid contact within six feet of persons known or suspected of having COVID-19.   In such an environment, employees should be able to achieve minimal contact by, for example, telecommuting, staggered work shifts, remote service delivery, floor-to-ceiling physical barriers (such as clear plastic walls at convenience stores behind which only one employee is working at any one time), or other forms of mandatory physical distancing of employees.

Face coverings are required when it is necessary for an employee to have brief contact with others inside the six feet distance, but face coverings are not a substitute for the other means of achieving minimal occupational contact.

Mandatory Requirements for All Virginia Employers

All employers now are required to take precautions to prevent the spread of COVID-19.

These include:

  • Assessing hazard levels of all job tasks and classifying each according to the standards outlined above from “very high” to “lower” exposure risk.
  • Providing information to employees on the hazards and characteristics of COVID-19 and the measures to minimize exposure and self-monitor for symptoms. (The Department of Labor and Industry is developing an information sheet that employers may use.)
  • Requiring social distancing or, when not possible, the wearing of face masks.
  • Closing common areas and breakrooms, or, if not possible, tightly controlling access to these areas to ensure physical distancing and requiring employees to disinfect the immediate area in which they were located prior to leaving or at regular intervals throughout the day.
  • Cleaning and disinfecting commonly used areas and equipment and providing frequent access to hand washing or hand sanitizer.
  • Ensuring that sick leave policies are flexible and consistent with public health guidance and that employees are aware of these policies.
  • Establishing a system to receive reports of positive COVID-19 tests by any employee or contractor present at the work site within 14 days from the date of the positive test. Within 24 hours of when a positive test report is received, employers must notify (while keeping identities confidential) all employees who may have been exposed; other employers whose employees may have been exposed; the building or facility owner (so that it may sanitize the common areas and notify tenants of the location of the case); and the Virginia Department of Health.  Employers are not required to conduct contact tracing, however.
  • Notifying VOSH of three or more positive COVID-19 tests within a two-week period.
  • Prohibiting employees who are known or suspected to be positive for COVID-19 from remaining at or returning to work or a customer or client location for at least 10 days after symptom onset and three days after symptoms pass, or after the employee receives two consecutive negative tests at least 24 hours apart, provided they are not antibody tests, which are considered less reliable.

Higher Risk Jobs

            Additional requirements apply to jobs classified as medium exposure risks and high or very high exposure risks.  The requirements include prescreening of employees and contractors for COVID-19 symptoms before entering the worksite, telework, staggered shifts, physical barriers, and air handling system requirements where appropriate.  In addition, these employers must provide training on the hazards and characteristics of the COVID-19 disease to all employees working at the place of employment regardless of employee risk classification.

With job tasks classified as high or very high (or as medium with 11 or more employees), employers further must develop and implement a written infectious disease preparedness and response plan.

Effective Dates and Expiration

The ETS took effect on July 27, 2020.  Employers, however, have an additional 30 or 60-day window to implement some of the training and planning requirements.  There is a 30-day window to implemented most of the employee training requirements, and a 60-day window for certain workplaces to establish written infectious disease preparedness and response plans and undertake training related to such plans.

The ETS will remain in place for six months or until the Governor’s COVID-19 State of Emergency expires or the temporary standards are replaced by the enactment of permanent standards, whichever occurs first.

What Else Employers Should Know

Finally, the ETS gives legal protections to workers who raise reasonable concerns about infection control to their employer, the employer’s agent, other employees, a government agency, or to the public such as through print, online, social or any other media.  The ETS also prohibits employers from discharging or discriminating against a worker because the employee exercised rights under the standard or “blew the whistle” on violations of the standard.

Employers must allow employees to wear their own personal protective equipment, including a respirator, face shield, gloves, or face covering if the equipment is not already provided by the employer and it does not create a greater hazard to the employee or create a serious hazard for other employees. Additionally, nothing in the standard limits an employee from refusing to perform work or to enter a location that the employee feels is unsafe.

*  *  *  *

Virginia employers who are unsure about compliance with these new rules should consult with experienced Virginia employment counsel to learn how to best conform their business practices to the new standard.  Should you have any questions about these new requirements for Virginia employers, DiMuroGinsberg’s employment law attorneys are here to help.

DGRead 20.08.01

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DC Bar CLE: The ABCs of the ADA; Virginia Pregnancy Protections in the Workplace: What You Need to Know; Payroll Protection Plan Fraud Follow-Up; DG/30 Milestone

Payroll Protection Plan Fraud Follow-Up

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By M. Jarrad Wright

The U.S. Department of Justice (“DOJ”) has begun to shift its response to the COVID-19 crisis away from price gauging cases to financial crimes – namely attempts to defraud the federal government’s various relief programs, including the Payroll Protection Plan (“PPP”) which was established as part of the larger Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”).  While the CARES Act and PPP provided billions of dollars of economic stimulus and relief to millions of people throughout the country, the relative speed of the programs and the large amounts of dollars involved made such programs targets for fraudulent claims.

In an attempt to identify such claims, the DOJ recently announced that it is using data analytics technology to help identify and investigate individuals and businesses who have made false statements to defraud the government and/or banks. The DOJ has charged fraud cases in several cases around the country involving PPP fraud. These cases include a Texas man who allegedly sought millions of dollars in PPP loans by certifying that he had a business of 250 employees when allegedly no employees worked for his business. In another case, an Arkansas man was alleged to have sought approximately $8 million in PPP loans from multiple banks by providing fraudulent payroll documentation.

While cases involving millions of dollars are headline grabbing, it should be noted that the DOJ has begun looking into cases involving smaller dollar figures. For example, on June 16, 2020, the DOJ charged an Illinois man for allegedly submitting false and fabricated IRS forms and other documents that allegedly overstated payroll amounts in order to obtain a loan of approximately $441,000. According to the DOJ, a comparison between the IRS forms submitted to the bank for the PPP loan and the actual forms at the IRS showed significant differences.

The PPP loan applications require companies and individual to make a variety of certifications such as certifying need for the loan monies but also require presenting significant documentation. While the Small Business Association stated that loans in amounts of less than $2 million “will be deemed to have made the required certification concerning the necessity of the loan request in good faith,” the government investigators are going to continue to pursue other potential sources of fraud including false documentation.

In the weeks and months ahead, the DOJ is likely to continue to investigate such fraudulent cases and then begin to shift its focus into more complex financial fraud cases and more complex violations of certifications made in the PPP loan process. These cases are likely to arise in a variety of contexts and may arise in a variety of ways including referrals from banks, the SBA, even qui tam relaters under the False Claims Act or through the DOJ’s data analytics. Business involved in such cases will likely be faces charges ranging from bank fraud to wire fraud, as well as significant civil liability exposure.

‘sDiMuroGinsberg has years of experience involving complex criminal and civil litigation.  This includes defending people accused of healthcare fraud and pursuing False Claims Act cases.  DiMuroGinsberg stands ready to assist whether one is accused or aware of such fraudulent claims.

 

Virginia Pregnancy Protections in the Workplace: What You Need to Know

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By: Zachary Deubler

During its 2020 legislative session, the Virginia General Assembly passed a slew of measures providing your employees new and expended workplace protections, while also enhancing the mechanisms by which employees may seek to bring claims against their employers for violating the newly enacted laws. As we discussed at our June 2, 2020 Webinar, these new measures included new protections for LGQBT workers, prohibiting non-competes for “low-wage” workers, and significant increases in Virginia’s minimum wage.

 

Easily lost in these new sweeping measures are the recently strengthened prohibitions on discrimination in the workplace based on pregnancy and pregnancy-related conditions. The Virginia Human Rights Act, similar to Federal law, has long prohibited terminating employees on the basis of pregnancy and “childbirth or related medical conditions.” However, the new legislation known as the Virginia Values Act (VVA) goes much further and creates a private cause of action for discrimination related to these conditions and requires accommodations akin to the process under the federal Americans with Disabilities Act (ADA).

 

Who Is Covered by the VVA and Employee’s Right to Sue?

 

The VVA applies to all employers with five or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.

 

The VVA grants employees an independent right to sue their employers in state court for discrimination or failure to reasonably accommodate their pregnancy or pregnancy related conditions. For example, an employer that refuses to allow an employee who has been on maternity leave to return to her previous/equivalent position with equal seniority, pay, and other benefits may be found to have engaged in an “adverse action” against the employee.

 

The statute of limitations for filing a lawsuit alleging a violation of the VVA is two years from the date of the unlawful act.  Alternatively, if the employee files a charge of pregnancy discrimination with the Virginia Human Rights Commission or a local human rights agency within two years, the employee can file a lawsuit within 90 days from the final disposition of the charge.  Relief may include: up to one full year of back pay, compensatory damages, attorney’s fees, and injunctive relief.

 

What Are The New Reasonable Accommodations?

 

The VVA defines “reasonable accommodations” as including:

 

  • frequent or longer bathroom breaks,
  • breaks to express breast milk and access to a private location other than a bathroom for the expression of breast milk,
  • acquisition or modification of equipment or access to or modification of employee seating,
  • a temporary transfer to a less strenuous or hazardous position, and
  • assistance with manual labor, job restructuring, a modified work schedule, light duty assignments, and unpaid leave to recover from childbirth.

 

As to unpaid leave, the new law states that an employer cannot “require an employee to take leave if another reasonable accommodation can be provided to the known limitations related to the pregnancy, childbirth, or related medical conditions of such employee.”

 

New Proactive Notification Requirement

 

All covered employers must inform employees about the reasonable accommodations and non-discrimination aspects of the new law by displaying a poster in a workplace area visible to all employees as well as in any employee handbook. The same information must be provided to any employee, within 10-days, who gives notice of her pregnancy and any new employees during their on-boarding process.

 

Undue Hardship

 

An area particularly ripe for future litigation is an employer’s claim that an accommodation to a pregnant employee need not be provided because it would be an undue hardship. This exception is similar to that found in the ADA.  Primarily, there are three general factors that can determine whether an accommodation would create an “undue hardship” for the employer: (1) the size of the employer; (2) the nature and cost of the accommodations requested; and (3) nature of the employer’s operation.

 

DiMuroGinsberg Is Here To Help

 

What should you do to make sure that you are in compliance with the VVA and all the other important law mandates that the General Assembly enacted this year:

 

First, if you were not able to join us on June 2, we encourage you to watch our free webinar for employers on the recent changes made by the General Assembly available here.

 

Second, inform your employees of their rights under the VVA, as discussed above;

 

Third, review your existing employee policies and procedures to ensure that they are in accord with your new obligations under the VVA; and

 

Fourth, when in doubt, consult with experienced employment counsel to ensure that your operations and actions do not give rise to a discrimination charge or lawsuit.

 

The attorneys at DiMuroGinsberg are here to assist you in navigating the complexities of the new legal landscape.  We represent employers in Virginia federal and state courts, as well as before federal and state administrative agencies. We also help employers prevent problems from arising by providing employment law compliance counseling, advice and training.

 

Our employment law practice group is led by Jonathan R. Mook, who has over 30 years of experience in employment law and is a nationally recognized authority on the Americans with Disabilities Act. He is the author of two treatises on the ADA published by Matthew Bender Company. Mr. Mook is a frequent lecturer on employment law issues and is a co-editor of the Mid-Atlantic Employment Law Letter published by BLR.

 

If you are in need of advice or representation, please do not hesitate to contact our firm for more information about our employment law services.

 

The ADA Turns 30: Zachary Deubler Has Questions: Jonathan Mook Has Answers

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Description:
On July 23 DiMuroGinsberg attorney, Zachary Deubler, and DiMuroGinsberg’s nationally recognized authority on the ADA, Jonathan Mook conducted an a webinar, interview style. The program was exciting as we traced the ADA from its beginnings to today, including significant new legal developments. The discussion was informative and listeners learned about the history and plans for the future of the ADA.

If you missed it and would like to
listen to a recording, click here.

Watch Recording

Read an article with a
Q&A by clicking here.

Read Q&A Article

DGRead 20.07.15

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ADA—Recent Law Developments; Rocket Docket Update; Pearls of Wisdom from DiMuroGinsberg; Virginia Criminal Law Update; DG/30 Milestone

Virginia Criminal Law Update: What Changes Came as of July 1?

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By Zachary Deubler
DiMuroGinsberg, P.C.

In Virginia, the 2020 legislative session brought about some of the largest criminal justice reform measures we have seen passed into law in the Commonwealth for decades. Indeed, these reforms were largely spurred on by criminal justice advocates who took issue with Virginia’s trial-by-ambush approach and the perceived over-criminalization of certain types of behaviors.

The Criminal Practice Group at DiMuroGinsberg has compiled a noncomprehensive list of some of the major legislative changes that may have the biggest impact on both Criminal Defendants and Criminal Practitioners throughout Virginia.

Discovery Reform:

One of the most anticipated changes can be found in the reform of the criminal discovery process. Changes in Rules 3A:11 and 3A:12 were approved by the Supreme Court of Virginia in September 2018 with a 2019 effective date, but implementation was delayed for a year to allow for assessment of the impact of police body camera evidence.

Under the recent rule changes, defense attorneys are given access to witness statements and police reports; before the rule change, the procedure to obtain a copy—if one was given at all—varied by jurisdiction. The amendments also provide for reciprocal exchange of witness lists and include a recommendation that defense lawyers provide expert witness information, now required only of prosecutors.

Moreover, H.B. 813 further indicates that discovery shall be provided within a reasonable amount of time before trial, but that in no case shall it be provided later than (i) 14 days before trial for a misdemeanor in circuit court, (ii) 30 days before trial for a felony or multiple felony counts punishable by confinement in a state correctional facility for an aggregate of 30 years or less, or (iii) 90 days before trial for a felony or multiple felony counts punishable by confinement in a state correctional facility for an aggregate of more than 30 years. The bill also provides a mechanism for redaction of certain personal identifying information and creates a procedure for either party to move the court to enter a protection order with regard to discovery. Finally, the bill grants the court the ability to impose various remedies it deems just if a party fails to comply with any of the requirements.

Crimes

In addition to changing discovery disclosure procedures, the Virginia legislature also took substantial steps in changing/modifying substantive criminal offenses—including changes in the direct and collateral consequences of some crimes. These changes range from the relatively small increase in the Reckless Driving speed limit, to the larger decriminalization of simple possession of marijuana. Of particular importance and a potential game changer, is the ability of defense counsel to inform prospective jurors, during the voir dire, of the range of punishment for a given offense if they should return a guilty verdict. This change in the law is an important first step towards eliminating the “trial penalty” in criminal cases within Virginia.1

  • H.B. 618\ S.B. 179—Hate crimes; gender, disability, gender identity, or sexual orientation; penalty.
    • Adds gender, disability, gender identity and sexual orientation to the categories of victims whose intentional selection for a hate crime involving assault, assault and battery, or trespass for the purpose of damaging another’s property results in a higher criminal penalty for the offense. The bill also eliminates the mandatory minimum terms of confinement for such hate crimes.
  • H.B. 660\ S.B. 286—Deferred dispositions; property crimes; larceny and receiving stolen goods.
    • Provides that a court upon such plea, if the facts found by the court would justify a finding of guilt, without entering a judgment of guilt and with the consent of the accused, may defer further proceedings and place him/her on probation subject to terms and conditions for a first offense misdemeanor larceny, provided such person has not previously been convicted of any felony or had a prior deferred disposition for the same offense.
  • H.B. 885—Reckless driving; exceeding speed limit.
    • Raises the threshold for per se reckless driving for speeding from driving in excess of 80 miles per hour to driving in excess of 85 miles per hour. The threshold for per se reckless driving for speeding for driving at or more than 20 miles per hour in excess of the speed limit remains unchanged.
  • H.B. 972\ S.B.2—Possession and consumption of marijuana; penalty.
    • Decriminalizes simple marijuana possession and provides a civil penalty of no more than $25. The bill provides that any violation of simple possession of marijuana shall be charged by a summons in form the same as the uniform summons for motor vehicle law violations and that no court costs shall be assessed for such violations. The bill also provides that a person’s criminal history record information shall not include records of any charges or judgments for such violations and records of such charges or judgements shall not be reported to the Central Criminal Records Exchange. The bill defines “marijuana” to include hashish oil and creates a rebuttable presumption that a person who possesses no more than one ounce of marijuana possesses it for personal use. The bill also (i) makes records relating to the arrest, criminal charge or conviction of possession of marijuana not open to public inspection and disclosure, except in certain circumstances; (ii) prohibits employers and educational institutions from requiring an applicant for employment or admission to disclose information related to such arrest, criminal charge, or conviction; and (iii) prohibits agencies, officials, and employees of the state and local governments from requiring an applicant for a license, permit, registration, or governmental service to disclose information concerning such arrest, criminal charge, or conviction. When there is an acquittal, a nolle prosequi is taken, or the charge is otherwise dismissed, the bill allows the person charged with the civil offense to file a petition requesting expungement of the police records and court records related to the charge.
  • H.B. 995\ S.B. 788—Grand larceny; threshold.
    • Increases from $500 to $1,000 the threshold amount of money or value of goods or chattel taken at which the crime rises from petit larceny to grand larceny. The bill increases the threshold by the same amount for the classification of certain property crimes.
  • S.B. 64—Paramilitary activities; penalty.
    • Provides that a person is guilty of unlawful paramilitary activity if such person brandishes a firearm or any air or gas operated weapon or any object similar in appearance while assembled with one or more persons for the purpose of and with the intent to intimidate any person or group of persons. Such unlawful paramilitary activity is punishable as a Class 5 felony.
  • S.B. 144—Protective orders; issuance upon convictions for certain felonies; penalty.
    • Authorizes a court to issue a protective order upon convicting a defendant for an act of violence and upon the request of the victim or the attorney for the Commonwealth on behalf of the victim. The bill provides that the duration of such protective order can be for any reasonable period of time, including up to the lifetime of the defendant, that the court deems necessary to protect the health and safety of the victim. The bill provides that a violation of a protective order issued upon a conviction for an act of violence is punishable as a Class 1 misdemeanor.
  • H.B. 34—Refusal of tests; restricted license.
    • Allows a person convicted of a first offense of unreasonable refusal to have samples of his breath or blood taken for chemical tests to determine the alcohol content of his blood to petition the court 30 days after conviction for a restricted driver’s license.

Criminal Procedure

  • H.B. 100\ S.B. 325—Voir dire examination of persons called as jurors; criminal case.
    • Allows the court and counsel for either party in a criminal case to (i) ask potential jurors any relevant questions to ascertain whether the juror can sit impartially in either the guilt or sentencing phase of the case and (ii) inform any potential juror as to the potential range of punishments to ascertain if the person or juror can sit impartially in the sentencing phase of the case.
  • H.B. 909\ S.B.513—Driver’s license suspensions for certain non-driving related offenses.
    • Removes the existing provisions that allow a person’s driver’s license to be suspended (i) when he is convicted of or placed on deferred disposition for a drug offense, (ii) for non-payment of certain fees owed to a local correctional facility or regional jail, and (iii) for shoplifting motor fuel.
  • H.B. 1196\ S.B. 1—Suspension of driver’s license for nonpayment of fines or costs.
    • Removes the requirement that a court suspend the driver’s license of a person convicted of any violation of the law who fails or refuses to provide for immediate payment of fines or costs.
  • H.B. 1462—Admission to bail; rebuttable presumptions against bail.
    • Eliminates the provision prohibiting a judicial officer who is a magistrate, clerk, or deputy clerk of a district court or circuit court from admitting to bail, that is not set by a judge, any person who is charged with an offense giving rise to a rebuttable presumption against bail without the concurrence of an attorney for the Commonwealth.
  • H.B. 1522—Forfeiture of property used in connection with the commission of crimes; finding of guilt required.
    • Requires that any action for the forfeiture of property used in connection with the commission of a crime be stayed until the person whose property is the subject of the forfeiture action has been found guilty of the crime authorizing the forfeiture, regardless of whether he has been sentenced.
  • S.B. 439—Driving under the influence; remote alcohol monitoring; penalty.
    • Provides that in the case of an adult offender’s first conviction of driving under the influence when the offender’s blood alcohol content was less than 0.15, upon motion of the offender, the sole restriction of the offender’s restricted driver’s license shall be the prohibition of the offender from operating any motor vehicle not equipped with a functioning, certified ignition interlock system for one year without any violation of the ignition interlock system requirements.
  • S.B. 667—Arrest and prosecution when experiencing or reporting overdoses.
    • Provides that no individual shall be subject to arrest or prosecution for the unlawful purchase, possession, or consumption of alcohol; possession of a controlled substance; possession of marijuana; intoxication in public; or possession of controlled paraphernalia if (i) such individual (a) seeks or obtains emergency medical attention for himself, if he is experiencing an overdose, or for another individual, if such other individual is experiencing an overdose, or (b) is experiencing an overdose and another individual seeks or obtains emergency medical attention for him; (ii) such individual remains at the scene of the overdose or at any location to which he or the individual requiring emergency medical attention has been transported; (iii) such individual identifies himself to the law-enforcement officer who responds; and (iv) the evidence for a prosecution of one of the enumerated offenses would have been obtained only as a result of an individual seeking or obtaining emergency medical attention.
  • H.B. 744— Sentencing of juvenile tried as adult.
    • Provides that a court, in the case of a juvenile tried as an adult and convicted of a felony, may depart from any mandatory minimum sentence required by law and suspend any portion of an otherwise applicable sentence.

Firearms

  • H.B. 2\ S.B. 70—Firearm sales; criminal history record information checks; penalty.
    • Requires a background check for any firearm sale. A person who sells a firearm to another person without obtaining the required background check is guilty of a Class 1 misdemeanor. The bill also provides that a purchaser who receives a firearm from another person without obtaining the required background check is guilty of a Class 1 misdemeanor. The bill removes the provision that makes background checks of prospective purchasers or transferees at firearms shows voluntary.
  • H.B. 9—Reporting lost or stolen firearms; civil penalty.
    • Requires that, if a firearm is lost or stolen from a person who lawfully possessed it, such person shall report the loss or theft of the firearm to any local law-enforcement agency or the Department of State Police within 48 hours after such person discovers the loss or theft or is informed by a person with personal knowledge of the loss or theft.
  • H.B. 674\ S.B. 240—Firearms; removal from persons posing substantial risk; penalties.
    • Creates a procedure by which any attorney for the Commonwealth or law-enforcement officer may apply to a general district court, circuit court, or juvenile and domestic relations district court judge or magistrate for an emergency substantial risk order to prohibit a person who poses a substantial risk of injury to himself or others from purchasing, possessing, or transporting a firearm.
  • H.B. 812\ S.B. 69—Purchase of handguns; limitation on handgun purchases; penalty.
    • Prohibits any person who is not a licensed firearms dealer from purchasing more than one handgun in a 30-day period and establishes such an offense as a Class 1 misdemeanor.

1 See Generally The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It, National Association of Criminal Defense Lawyers (July 10, 2018) available at: https://www.nacdl.org/Document/TrialPenaltySixthAmendmentRighttoTrialNearExtinct

DGRead 20.07.01

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Zachary Deubler Has Questions; Johnathan Mook Has Answers; Rocket Docket Update; Back to Work Can Cause More Problems Than It Solves

“Ancient Gesture of Insult” Does Not Justify Traffic Stop

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By Stacey Rose Harris
DiMuroGinsberg, P.C.

Don’t flip off a traffic cop. But if you do, they can’t pull you over. At least, they can’t pull you over JUST for that. The U.S. District Court for the Western District of Virginia has decided that a police officer was not justified in stopping a vehicle whose passenger flipped him the middle finger. In 2016, Brian Clark had been a witness in a civil proceeding in the Patrick County Courthouse, a Courthouse from which he had been banned except under certain circumstances, as a result of his behavior. Lieutenant Coleman was aware of Clark and had observed him during the case. When Court adjourned, Lieutenant Coleman proceeded to the parking lot of a nearby grocery store to stop and check his messages. The car in which Clark was driving passed him, and as it did, Clark flipped him off. Coleman proceeded to stop the car, and when he radioed dispatch, learned that Clark had outstanding papers to be served on him. Coleman served the papers, and then let Clark go.

Clark sued Coleman for violating his constitutional rights in conducting an illegal stop, arguing that there was not probable cause. Coleman argued that he has never been given the middle finger unless that person was intoxicated, and that was his justification for the stop. However, his testimony that he had seen Clark in court immediately before, where he had not appeared to be intoxicated, contradicted his assertion that he pulled Clark over for such a suspicion. At trial, the jury found that Clark’s rights were not violated. The Court, however, granted his motion to set aside the verdict, as contrary to law, on the grounds that Coleman lacked reasonable suspicion to detain Clark. The Court denied Clark’s motion for a new trial on the issue of damages, and awarded him $1 and attorneys’ fees.

Under well-settled law of the Fourth Amendment, the Court held, any search or seizure must be based on reasonable suspicion to believe the plaintiff had committed or was committing a crime. “Displaying one’s middle finger is not illegal, nor does the gesture ‘on its own create probable cause or reasonable suspicion’” that Clark violated the law. The mere fact that, in Coleman’s experience, he has never been flipped off unless the person stopped is intoxicated, is not enough, particularly when Clark had seen Coleman just minutes before in Court, where he appeared fine. Nor did either exception to “reasonable suspicion” apply, that is, there was no basis for application of the community caretaking doctrine (routine procedures such as impoundment of a vehicle that impedes traffic or entry into a car after an accident to assess passengers’ conditions), nor were there exigent circumstances (emergencies of any nature or danger to public safety).

DiMuroGinsberg has decades of experience in representing parties to proceedings with constitutional issues like this one, including which raises both Fourth Amendment (search and seizure) and First Amendment (freedom of speech and expression) questions. Our attorneys have represented both plaintiffs and defendants subject to these types of claims, and have a depth of experience in a broad array of civil rights cases, including issues like the ones presented here, as well as excessive force and other Section 1983 actions. Reach out to our firm if you would like to speak to someone further about representation in connection with a constitutional rights claim.

DGRead 20.06.15

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Jonathan Mook Looks Back to the Future with the ADA; Rocket Docket Update; “You’re in Trouble” says the Judge Before Awarding $21,000 in Sanctions! DG/30 Milestone