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Apr 10 15

Law Enforcement Use of Deadly Force?

by merlin

At the University of Georgia, I earned my Bachelor’s Degree in Criminal Justice.  One of the fundamental subjects that it was important to learn about, and which knowledge served me well subsequently in law school at Tulane University, was the use of deadly force by law enforcement.  The basic rule that I always understood to be true was that a law enforcement officer could not use deadly force to apprehend a suspect after they had disengaged, modified by the totality of the circumstances evaluation that has come to supplant that understanding (but which still requires the officer to know, or reasonably suspect, that the person has committed, is committing, or will commit an act of violence on another).  In other words, there should be some kind of proportionality between the harm the officer inflicts to achieve his or her goal of arresting the person and the harm the person is suspected of harboring.  Another way of saying it is found in the case below at page 8: “To determine the constitutionality of a seizure “[w]e must balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.”” However, my understanding of this must be incorrect, given the widespread use of violence and deadly force by law enforcement officers throughout this country on otherwise free citizens.

I also failed to appreciate that I would disagree so vehemently with Justice O’Connor on something as fundamental as the delicate balance between the Fourth Amendment and the use of deadly force to effect a seizure.  I find her dissent to be xenophobic, and I think it reflects the justification that many of these police shootings seem to rely on.

With my thoughts as introduction, the following is the 1985 case of Tennessee v. Garner, decided by the Supreme Court of the United States following the execution of a visibly unarmed fleeing burglary suspect by an officer in Memphis, Tennessee.  The citation is 471 U.S. 1, 105 S.Ct. 1694.  I want to point something out that may be ignored in many of the modern cases, but which I also always understood to be a significant portion of the law – the officer was only permitted to use the force involved after they had notified the suspect that they were under arrest (in other words, they had given them a “last clear chance” to surrender).  Of significant import is what the Court has to say about “seizure” of the person (deadly force being the ultimate seizure).

ALSO – of interest is the commentary contained in a footnote that avoiding arrest is NOT the same thing as “obstruction of arrest”, though there seems to be some trend of these matters being confounded in cases during the past several years:

“We note that the usual manner of deterring illegal conduct through punishment—has been largely ignored in connection with flight from arrest. Arkansas, for example, specifically excepts flight from arrest from the offense of “obstruction of governmental operations.” The commentary notes that this “reflects the basic policy judgment that, absent the use of force or violence, a mere attempt to avoid apprehension by a law enforcement officer does not give rise to an independent offense.””

Syllabus

          A Tennessee statute provides that if, after a police officer has given notice of an intent to arrest a criminal suspect, the suspect flees or forcibly resists, “the officer may use all the necessary means to effect the arrest.” Acting under the authority of this statute, a Memphis police officer shot and killed appellee-respondent Garner’s son as, after being told to halt, the son fled over a fence at night in the backyard of a house he was suspected of burglarizing. The officer used deadly force despite being “reasonably sure” the suspect was unarmed and thinking that he was 17 or 18 years old and of slight build. The father subsequently brought an action in Federal District Court, seeking damages under 42 U.S.C. § 1983 for asserted violations of his son’s constitutional rights. The District Court held that the statute and the officer’s actions were constitutional. The Court of Appeals reversed.

          Held: The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against, as in this case, an apparently unarmed, nondangerous fleeing suspect; such force may not be used unless necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. Pp. 7-22.

          (a) Apprehension by the use of deadly force is a seizure subject to the Fourth Amendment’s reasonableness requirement. To determine whether such a seizure is reasonable, the extent of the intrusion on the suspect’s rights under that Amendment must be balanced against the governmental interests in effective law enforcement. This balancing process demonstrates that, notwithstanding probable cause to seize a suspect, an officer may not always do so by killing him. The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. Pp. 7-12.

          (b) The Fourth Amendment, for purposes of this case, should not be construed in light of the common-law rule allowing the use of whatever force is necessary to effect the arrest of a fleeing felon. Changes in the legal and technological context mean that that rule is distortedalmost beyond recognition when literally applied. Whereas felonies were formerly capital crimes, few are now, or can be, and many crimes classified as misdemeanors, or nonexistent, at common law are now felonies. Also, the common-law rule developed at a time when weapons were rudimentary. And, in light of the varied rules adopted in the States indicating a long-term movement away from the common-law rule, particularly in the police departments themselves, that rule is a dubious indicium of the constitutionality of the Tennessee statute. There is no indication that holding a police practice such as that authorized by the statute unreasonable will severely hamper effective law enforcement. Pp. 12-20.

          (c) While burglary is a serious crime, the officer in this case could not reasonably have believed that the suspect—young, slight, and unarmed—posed any threat. Nor does the fact that an unarmed suspect has broken into a dwelling at night automatically mean he is dangerous. Pp. 20-22.

          710 F.2d 240 (CA6 1983), affirmed and remanded.

          Henry L. Klein, Memphis, Tenn., for petitioners in No. 83-1070.

          W.J. Michael Cody, Memphis, Tenn., for appellant in No. 83-1035.

          Steven L. Winter, New York City, for Cleamtee Garner, et al.

           Justice WHITE delivered the opinion of the Court.

          This case requires us to determine the constitutionality of the use of deadly force to prevent the escape of an apparently unarmed suspected felon. We conclude that such force may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.

I

          At about 10:45 p.m. on October 3, 1974, Memphis Police Officers Elton Hymon and Leslie Wright were dispatched to answer a “prowler inside call.” Upon arriving at the scene they saw a woman standing on her porch and gesturing toward the adjacent house.1 She told them she had heard glass breaking and that “they” or “someone” was breaking in next door. While Wright radioed the dispatcher to say that they were on the scene, Hymon went behind the house. He heard a door slam and saw someone run across the backyard. The fleeing suspect, who was appellee-respondent’s decedent, Edward Garner, stopped at a 6-feet-high chain link fence at the edge of the yard. With the aid of a flashlight, Hymon was able to see Garner’s face and hands. He saw no sign of a weapon, and, though not certain, was “reasonably sure” and “figured” that Garner was unarmed. App. 41, 56; Record 219. He thought Garner was 17 or 18 years old and about 5’5″ or 5’7″ tall.2 While Garner was crouched at the base of the fence, Hymon called out “police, halt” and took a few steps toward him. Garner then began to climb over the fence. Convinced that if Garner made it over the fence he would elude capture,3 Hymon shot him. The bullet hit Garner in the back of the head. Garner was taken by ambulance to a hospital, where he died on the operating table. Ten dollars and a purse taken from the house were found on his body.4

            In using deadly force to prevent the escape, Hymon was acting under the authority of a Tennessee statute and pursuant to Police Department policy. The statute provides that “[i]f, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all the necessary means to effect the arrest.” Tenn.Code Ann. § 40-7-108 (1982).5 The Department policy was slightly more restrictive than the statute, but still allowed the use of deadly force in cases of burglary. App. 140-144. The incident was reviewed by the Memphis Police Firearm’s Review Board and presented to a grand jury. Neither took any action. Id., at 57.

          Garner’s father then brought this action in the Federal District Court for the Western District of Tennessee, seeking damages under 42 U.S.C. § 1983 for asserted violations of Garner’s constitutional rights. The complaint alleged that the shooting violated the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. It named as defendants Officer Hymon, the Police Department, its Director, and the Mayor and city of Memphis. After a 3-day bench trial, the District Court entered judgment for all defendants. It dismissed the claims against the Mayor and the Director for lack of evidence. It then concluded that Hymon’s actions were authorized by the Tennessee statute, which in turn was constitutional. Hymon had employed the only reasonable and practicable means of preventing Garner’s escape. Garner had “recklessly and heedlessly attempted to vault over the fence to escape, thereby assuming the risk of being fired upon.” App. to Pet. for Cert. A10.

          The Court of Appeals for the Sixth Circuit affirmed with regard to Hymon, finding that he had acted in good-faith reliance on the Tennessee statute and was therefore within the scope of his qualified immunity. 600 F.2d 52 (1979). It remanded for reconsideration of the possible liability of the city, however, in light of Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), which had come down after the District Court’s decision. The District Court was directed to consider whether a city enjoyed a qualified immunity, whether the use of deadly force and hollow point bullets in these circumstances was constitutional, and whether any unconstitutional municipal conduct flowed from a “policy or custom” as required for liability under Monell. 600 F.2d, at 54-55.

          The District Court concluded that Monell did not affect its decision. While acknowledging some doubt as to the possible immunity of the city, it found that the statute, and Hymon’s actions, were constitutional. Given this conclusion, it declined to consider the “policy or custom” question. App. to Pet. for Cert. A37-A39.

          The Court of Appeals reversed and remanded. 710 F.2d 240 (1983). It reasoned that the killing of a fleeing suspect is a “seizure” under the Fourth Amendment,6 and is therefore constitutional only if “reasonable.” The Tennessee statute failed as applied to this case because it did not adequately limit the use of deadly force by distinguishing between felonies of different magnitudes—”the facts, as found, did not justify the use of deadly force under the Fourth Amendment.” Id., at 246. Officers cannot resort to deadly force unless they “have probable cause . . . to believe that the suspect [has committed a felony and] poses a threat to the safety of the officers or a danger to the community if left at large.” Ibid.7

          The State of Tennessee, which had intervened to defend the statute, see 28 U.S.C. § 2403(b), appealed to this Court. The city filed a petition for certiorari. We noted probable jurisdiction in the appeal and granted the petition. 465 U.S. 1098, 104 S.Ct. 1589, 80 L.Ed.2d 122 (1984).

II

          Whenever an officer restrains the freedom of a person to walk away, he has seized that person. United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574 2578, 45 L.Ed.2d 607 (1975). While it is not always clear just when minimal police interference becomes a seizure, see United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), there can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.

A.

            A police officer may arrest a person if he has probable cause to believe that person committed a crime. E.g., United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). Petitioners and appellant argue that if this requirement is satisfied the Fourth Amendment has nothing to say about how that seizure is made. This submission ignores the many cases in which this Court, by balancing the extent of the intrusion against the need for it, has examined the reasonableness of the manner in which a search or seizure is conducted. To determine the constitutionality of a seizure “[w]e must balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637 2642, 77 L.Ed.2d 110 (1983); see Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391 1396, 59 L.Ed.2d 660 (1979); United States v. Martinez-Fuerte, 428 U.S. 543, 555, 96 S.Ct. 3074 3081, 49 L.Ed.2d 1116 (1976). We have described “the balancing of competing interests” as “the key principle of the Fourth Amendment.” Michigan v. Summers, 452 U.S. 692, 700, n. 12, 101 S.Ct. 2587, 2593, n. 12, 69 L.Ed.2d 340 (1981). See also Camara v. Municipal Court, 387 U.S. 523, 536-537, 87 S.Ct. 1727, 1734-1735, 18 L.Ed.2d 930 (1967). Because one of the factors is the extent of the intrusion, it is plain that reasonableness depends on not only when a seizure is made, but also how it is carried out. United States v. Ortiz, 422 U.S. 891, 895, 95 S.Ct. 2585 2588, 45 L.Ed.2d 623 (1975); Terry v. Ohio, 392 U.S. 1, 28-29, 88 S.Ct. 1868, 1883-1884, 20 L.Ed.2d 889 (1968).

          Applying these principles to particular facts, the Court has held that governmental interests did not support a lengthy detention of luggage, United States v. Place, supra, an airport seizure not “carefully tailored to its underlying justification,” Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319 1325, 75 L.Ed.2d 229 (1983) (plurality opinion), surgery under general anesthesia to obtain evidence, Winston v. Lee, 470 U.S. 753, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985), or detention for fingerprinting without probable cause, Davis v. Mississippi, 394 U.S. 721,89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); Hayes v. Florida, 470 U.S. 811, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985). On the other hand, under the same approach it has upheld the taking of fingernail scrapings from a suspect, Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973), an unannounced entry into a home to prevent the destruction of evidence, Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), administrative housing inspections without probable cause to believe that a code violation will be found, Camara v. Municipal Court, supra, and a blood test of a drunken-driving suspect, Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). In each of these cases, the question was whether the totality of the circumstances justified a particular sort of search or seizure.

B

          The same balancing process applied in the cases cited above demonstrates that, notwithstanding probable cause to seize a suspect, an officer may not always do so by killing him. The intrusiveness of a seizure by means of deadly force is unmatched. The suspect’s fundamental interest in his own life need not be elaborated upon. The use of deadly force also frustrates the interest of the individual, and of society, in judicial determination of guilt and punishment. Against these interests are ranged governmental interests in effective law enforcement.8 It is argued that overall violence will be reduced by encouraging the peaceful submission of suspects who know that they may be shot if they flee. Effectiveness in making arrests requires the resort to deadly force, or at least the meaningful threat thereof. “Being able to arrest such individuals is a condition precedent to the state’s entire system of law enforcement.” Brief for Petitioners 14.

          Without in any way disparaging the importance of these goals, we are not convinced that the use of deadly force is a sufficiently productive means of accomplishing them to justify the killing of nonviolent suspects. Cf. Delaware v. Prouse, supra, 440 U.S., at 659, 99 S.Ct., at 1399. The use of deadly force is a self-defeating way of apprehending a suspect and so setting the criminal justice mechanism in motion. If successful, it guarantees that that mechanism will not be set in motion. And while the meaningful threat of deadly force might be thought to lead to the arrest of more live suspects by discouraging escape attempts,9 the presently available evidence does not support this thesis.10 The fact is that a majority of police departments in this country have forbidden the use of deadly force against nonviolent suspects. See infra, at 18-19. If those charged with the enforcement of the criminal law have abjured the use of deadly force in arresting nondangerous felons, there is a substantial basis for doubting that the use of such force is an essential attribute of the arrest power in all felony cases. See Schumann v. McGinn, 307 Minn. 446, 472, 240 N.W.2d 525, 540 (1976) (Rogosheske, J., dissenting in part). Petitioners and appellant have not persuaded us that shooting nondangerous fleeing suspects is so vital as to outweigh the suspect’s interest in his own life.

          The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, nondangerous suspect by shooting him dead. The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against such fleeing suspects.

          It is not, however, unconstitutional on its face. Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given. As applied in such circumstances, the Tennessee statute would pass constitutional muster.

III
A.

            It is insisted that the Fourth Amendment must be construed in light of the common-law rule, which allowed the use of whatever force was necessary to effect the arrest of a fleeing felon, though not a misdemeanant. As stated in Hale’s posthumously published Pleas of the Crown:

          “[I]f persons that are pursued by these officers for felony or the just suspicion thereof . . . shall not yield themselves to these officers, but shall either resist or fly before they are apprehended or being apprehended shall rescue themselves and resist or fly, so that they cannot be otherwise apprehended, and are upon necessity slain therein, because they cannot be otherwise taken, it is no felony.” 2 M. Hale, Historia Placitorum Coronae 85 (1736).

          See also 4 W. Blackstone, Commentaries *289. Most American jurisdictions also imposed a flat prohibition against the use of deadly force to stop a fleeing misdemeanant, coupled with a general privilege to use such force to stop a fleeing felon. E.g., Holloway v. Moser, 193 N.C. 185, 136 S.E. 375 (1927); State v. Smith, 127 Iowa 534, 535, 103 N.W. 944, 945 (1905); Reneau v. State, 70 Tenn. 720 (1879); Brooks v. Commonwealth, 61 Pa. 352 (1869); Roberts v. State, 14 Mo. 138 (1851); see generally R. Perkins & R. Boyce, Criminal Law 1098-1102 (3d ed. 1982); Day, Shooting the Fleeing Felon: State of the Law, 14 Crim.L.Bull. 285, 286-287 (1978); Wilgus, Arrest Without a Warrant, 22 Mich.L.Rev. 798, 807-816 (1924). But see Storey v. State, 71 Ala. 329 (1882); State v. Bryant, 65 N.C. 327, 328 (1871); Caldwell v. State, 41 Tex. 86 (1874).

          The State and city argue that because this was the prevailing rule at the time of the adoption of the Fourth Amendment and for some time thereafter, and is still in force in some States, use of deadly force against a fleeing felon must be “reasonable.” It is true that this Court has often looked to the common law in evaluating the reasonableness, for Fourth Amendment purposes, of police activity. See, e.g., United States v. Watson, 423 U.S. 411, 418-419, 96 S.Ct. 820, 825-826, 46 L.Ed.2d 598 (1976); Gerstein v. Pugh, 420 U.S. 103, 111, 114, 95 S.Ct. 854, 861, 863, 43 L.Ed.2d 54 (1975); Carroll v. United States, 267 U.S. 132, 149-153, 45 S.Ct. 280, 283-285, 69 L.Ed. 543 (1925). On the other hand, it “has not simply frozen into constitutional law those law enforcement practices that existed at the time of the Fourth Amendment’s passage.” Payton v. New York, 445 U.S. 573, 591, n. 33, 100 S.Ct. 1371, 1382, n. 33,63 L.Ed.2d 639 (1980). Because of sweeping change in the legal and technological context, reliance on the common-law rule in this case would be a mistaken literalism that ignores the purposes of a historical inquiry.

B

          It has been pointed out many times that the common-law rule is best understood in light of the fact that it arose at a time when virtually all felonies were punishable by death.11“Though effected without the protections and formalities of an orderly trial and conviction, the killing of a resisting or fleeing felon resulted in no greater consequences than those authorized for punishment of the felony of which the individual was charged or suspected.” American Law Institute, Model Penal Code § 3.07, Comment 3, p. 56 (Tentative Draft No. 8, 1958) (hereinafter Model Penal Code Comment). Courts have also justified the common-law rule by emphasizing the relative dangerousness of felons. See, e.g., Schumann v. McGinn, 307 Minn., at 458, 240 N.W.2d, at 533; Holloway v. Moser, supra, 193 N.C., at 187, 136 S.E., at 376 (1927).

          Neither of these justifications makes sense today. Almost all crimes formerly punishable by death no longer are or can be. See, e.g., Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368,73 L.Ed.2d 1140 (1982); Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977). And while in earlier times “the gulf between the felonies and the minor offences was broad and deep,” 2 Pollock & Maitland 467, n. 3; Carroll v. United States, supra, 267 U.S., at 158, 45 S.Ct., at 287, today the distinction is minor and often arbitrary. Many crimes classified as misdemeanors, or nonexistent, at common law are now felonies. Wilgus, 22 Mich.L.Rev., at 572-573. These changes have undermined the concept, which was questionable to begin with, that use of deadly force against a fleeing felon is merely a speedier execution of someone who has already forfeited his life. They have also made the assumption that a “felon” is more dangerous than a misdemeanant untenable. Indeed, numerous misdemeanors involve conduct more dangerous than many felonies.12

          There is an additional reason why the common-law rule cannot be directly translated to the present day. The common-law rule developed at a time when weapons were rudimentary. Deadly force could be inflicted almost solely in a hand-to-hand struggle during which, necessarily, the safety of the arresting officer was at risk. Handguns were not carried by police officers until the latter half of the last century. L. Kennett & J. Anderson, The Gun in America 150-151 (1975). Only then did it become possible to use deadly force from a distance as a means of apprehension. As a practical matter, the use of deadly force under the standard articulation of the common-law rule has an altogether different meaning—and harsher consequences—now than in past centuries. See Wechsler & Michael, A Rationale for the Law of Homicide: I, 37 Colum.L.Rev. 701, 741 (1937).13

          One other aspect of the common-law rule bears emphasis. It forbids the use of deadly force to apprehend a misdemeanant, condemning such action as disproportionately severe. See Holloway v. Moser, 193 N.C., at 187, 136 S.E., at 376; State v. Smith, 127 Iowa, at 535, 103 N.W., at 945. See generally Annot., 83 A.L.R.3d 238 (1978).

          In short, though the common-law pedigree of Tennessee’s rule is pure on its face, changes in the legal and technological context mean the rule is distorted almost beyond recognition when literally applied.

C

          In evaluating the reasonableness of police procedures under the Fourth Amendment, we have also looked to prevailing rules in individual jurisdictions. See, e.g., United States v. Watson, 423 U.S., at 421-422, 96 S.Ct., at 826-827. The rules in the States are varied. See generally Comment, 18 Ga.L.Rev. 137, 140-144 (1983). Some 19 States have codified the common-law rule,14 though in two of these the courts have significantly limited the statute.15 Four States, though without a relevant statute, apparently retain the common-law rule.16 Two States have adopted the Model Penal Code’s provision verbatim.17 Eighteen others allow, in slightly varying language, the use of deadly force only if the suspect has committed a felony involving the use or threat of physical or deadly force, or is escaping with a deadly weapon, or is likely to endanger life or inflict serious physical injury if not arrested.18 Louisiana and Vermont, though without statutes or case law on point, do forbid the use of deadly force to prevent any but violent felonies.19 The remaining States either have no relevant statute or case law, or have positions that are unclear.20

          It cannot be said that there is a constant or overwhelming trend away from the common-law rule. In recent years, some States have reviewed their laws and expressly rejected abandonment of the common-law rule.21 Nonetheless, the long-term movement has been away from the rule that deadly force may be used against any fleeing felon, and that remains the rule in less than half the States.

          This trend is more evident and impressive when viewed in light of the policies adopted by the police departments themselves. Overwhelmingly, these are more restrictive than the common-law rule. C. Milton, J. Halleck, J. Lardner, & G. Abrecht, Police Use of Deadly Force 45-46 (1977). The Federal Bureau of Investigation and the New York City Police Department, for example, both forbid the use of firearms except when necessary to prevent death or grievous bodily harm. Id., at 40-41; App. 83. For accreditation by the Commission on Accreditation for Law Enforcement Agencies, a department must restrict the use of deadly force to situations where “the officer reasonably believes that the action is in defense of human life . . . or in defense of any person in immediate danger of serious physical injury.” Commission on Accreditation for Law Enforcement Agencies, Inc., Standards for Law Enforcement Agencies 1-2 (1983) (italics deleted). A 1974 study reported that the police department regulations in a majority of the large cities of the United States allowed the firing of a weapon only when a felon presented a threat of death or serious bodily harm. Boston Police Department, Planning & Research Division, The Use of Deadly Force by Boston Police Personnel (1974), cited in Mattis v. Schnarr, 547 F.2d 1007, 1016, n. 19 (CA8 1976), vacated as moot sub nom. Ashcroft v. Mattis, 431 U.S. 171, 97 S.Ct. 1739, 52 L.Ed.2d 219 (1977). Overall, only 7.5% of departmental and municipal policies explicitly permit the use of deadly force against any felon; 86.8% explicitly do not. K. Matulia, A Balance of Forces: A Report of the International Association of Chiefs of Police 161 (1982) (table). See also Record 1108-1368 (written policies of 44 departments). See generally W. Geller & K. Karales, Split-Second Decisions 33-42 (1981); Brief for Police Foundation et al. as Amici Curiae. In light of the rules adopted by those who must actually administer them, the older and fading common-law view is a dubious indicium of the constitutionality of the Tennessee statute now before us.

D

          Actual departmental policies are important for an additional reason. We would hesitate to declare a police practice of long standing “unreasonable” if doing so would severely hamper effective law enforcement. But the indications are to the contrary. There has been no suggestion that crime has worsened in any way in jurisdictions that have adopted, by legislation or departmental policy, rules similar to that announced today. Amici noted that “[a]fter extensive research and consideration, [they] have concluded that laws permitting police officers to use deadly force to apprehend unarmed, non-violent fleeing felony suspects actually do not protect citizens or law enforcement officers, do not deter crime or alleviate problems caused by crime, and do not improve the crime-fighting ability of law enforcement agencies.” Id., at 11. The submission is that the obvious state interests in apprehension are not sufficiently served to warrant the use of lethal weapons against all fleeing felons. See supra, at 10-11, and n. 10.

          Nor do we agree with petitioners and appellant that the rule we have adopted requires the police to make impossible, split-second evaluations of unknowable facts. See Brief for Petitioners 25; Brief for Appellant 11. We do not deny the practical difficulties of attempting to assess the suspect’s dangerousness. However, similarly difficult judgments must be made by the police in equally uncertain circumstances. See, e.g., Terry v. Ohio, 392 U.S., at 20, 27, 88 S.Ct., at 1879, 1883. Nor is there any indication that in States that allow the use of deadly force only against dangerous suspects, see nn. 15, 17-19, supra, the standard has been difficult to apply or has led to a rash of litigation involving inappropriate second-guessing of police officers’ split-second decisions. Moreover, the highly technical felony/misdemeanor distinction is equally, if not more, difficult to apply in the field. An officer is in no position to know, for example, the precise value of property stolen, or whether the crime was a first or second offense. Finally, as noted above, this claim must be viewed with suspicion in light of the similar self-imposed limitations of so many police departments.

IV

          The District Court concluded that Hymon was justified in shooting Garner because state law allows, and the Federal Constitution does not forbid, the use of deadly force to prevent the escape of a fleeing felony suspect if no alternative means of apprehension is available. See App. to Pet. for Cert. A9-A11, A38. This conclusion made a determination of Garner’s apparent dangerousness unnecessary. The court did find, however, that Garner appeared to be unarmed, though Hymon could not be certain that was the case. Id., at A4, A23. See also App. 41, 56; Record 219. Restated in Fourth Amendment terms, this means Hymon had no articulable basis to think Garner was armed.

          In reversing, the Court of Appeals accepted the District Court’s factual conclusions and held that “the facts, as found, did not justify the use of deadly force.” 710 F.2d, at 246.

We agree. Officer Hymon could not reasonably have believed that Garner—young, slight, and unarmed—posed any threat. Indeed, Hymon never attempted to justify his actions on any basis other than the need to prevent an escape. The District Court stated in passing that “[t]he facts of this case did not indicate to Officer Hymon that Garner was ‘non-dangerous.’ ” App. to Pet. for Cert. A34. This conclusion is not explained, and seems to be based solely on the fact that Garner had broken into a house at night. However, the fact that Garner was a suspected burglar could not, without regard to the other circumstances, automatically justify the use of deadly force. Hymon did not have probable cause to believe that Garner, whom he correctly believed to be unarmed, posed any physical danger to himself or others.

          The dissent argues that the shooting was justified by the fact that Officer Hymon had probable cause to believe that Garner had committed a nighttime burglary. Post, at 29, 32. While we agree that burglary is a serious crime, we cannot agree that it is so dangerous as automatically to justify the use of deadly force. The FBI classifies burglary as a “property” rather than a “violent” crime. See Federal Bureau of Investigation, Uniform Crime Reports, Crime in the United States 1 (1984).22 Although the armed burglar would present a different situation, the fact that an unarmed suspect has broken into a dwelling at night does not automatically mean he is physically dangerous. This case demonstrates as much. See also Solem v. Helm, 463 U.S. 277, 296-297, and nn. 22-23, 103 S.Ct. 3001, 3012-3013, and nn. 22-23, 77 L.Ed.2d 637 (1983). In fact, the available statistics demonstrate that burglaries only rarely involve physical violence. During the 10-year period from 1973-1982, only 3.8% of all burglaries involved violent crime. Bureau of Justice Statistics, Household Burglary 4 (1985).23 See also T. Reppetto, Residential Crime 17, 105 (1974); Conklin & Bittner, Burglary in a Suburb, 11 Criminology 208, 214 (1973).

V

          We wish to make clear what our holding means in the context of this case. The complaint has been dismissed as to all the individual defendants. The State is a party only by virtue of 28 U.S.C. § 2403(b) and is not subject to liability. The possible liability of the remaining defendants—the Police Department and the city of Memphis—hinges on Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and is left for remand. We hold that the statute is invalid insofar as it purported to give Hymon the authority to act as he did. As for the policy of the Police Department, the absence of any discussion of this issue by the courts below, and the uncertain state of the record, preclude any consideration of its validity.

          The judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion.

          So ordered.

           Justice O’CONNOR, with whom THE CHIEF JUSTICE and Justice REHNQUIST join, dissenting.

          The Court today holds that the Fourth Amendment prohibits a police officer from using deadly force as a last resort to apprehend a criminal suspect who refuses to halt when fleeing the scene of a nighttime burglary. This conclusion rests on the majority’s balancing of the interests of the suspect and the public interest in effective law enforcement. Ante, at 8. Notwithstanding the venerable common-law rule authorizing the use of deadly force if necessary to apprehend a fleeing felon, and continued acceptance of this rule by nearly half the States, ante, at 14, 16-17, the majority concludes that Tennessee’s statute is unconstitutional inasmuch as it allows the use of such force to apprehend a burglary suspect who is not obviously armed or otherwise dangerous. Although the circumstances of this case are unquestionably tragic and unfortunate, our constitutional holdings must be sensitive both to the history of the Fourth Amendment and to the general implications of the Court’s reasoning. By disregarding the serious and dangerous nature of residential burglaries and the longstanding practice of many States, the Court effectively creates a Fourth Amendment right allowing a burglary suspect to flee unimpeded from a police officer who has probable cause to arrest, who has ordered the suspect to halt, and who has no means short of firing his weapon to prevent escape. I do not believe that the Fourth Amendment supports such a right, and I accordingly dissent.

I

          The facts below warrant brief review because they highlight the difficult, split-second decisions police officers must make in these circumstances. Memphis Police Officers Elton Hymon and Leslie Wright responded to a late-night call that a burglary was in progress at a private residence. When the officers arrived at the scene, the caller said that “they” were breaking into the house next door. App. in No. 81-5605 (CA6), p. 207. The officers found the residence had been forcibly entered through a window and saw lights on inside the house. Officer Hymon testified that when he saw the broken window he realized “that something was wrong inside,” id., at 656, but that he could not determine whether anyone—either a burglar or a member of the household—was within the residence. Id., at 209. As Officer Hymon walked behind the house, he heard a door slam. He saw Edward Eugene Garner run away from the house through the dark and cluttered backyard. Garner crouched next to a 6-foot-high fence. Officer Hymon thought Garner was an adult and was unsure whether Garner was armed because Hymon “had no idea what was in the hand [that he could not see] or what he might have had on his person.” Id., at 658-659. In fact, Garner was 15 years old and unarmed. Hymon also did not know whether accomplices remained inside the house. Id., at 657. The officer identified himself as a police officer and ordered Garner to halt. Garner paused briefly and then sprang to the top of the fence. Believing that Garner would escape if he climbed over the fence, Hymon fired his revolver and mortally wounded the suspected burglar.

          Appellee-respondent, the deceased’s father, filed a 42 U.S.C. § 1983 action in federal court against Hymon, the city of Memphis, and other defendants, for asserted violations of Garner’s constitutional rights. The District Court for the Western District of Tennessee held that Officer Hymon’s actions were justified by a Tennessee statute that authorizes a police officer to “use all the necessary means to effect the arrest,” if “after notice of the intention to arrest the defendant, he either flee or forcibly resist.” Tenn.Code Ann. § 40-7-108 (1982). As construed by the Tennessee courts, this statute allows the use of deadly force only if a police officer has probable cause to believe that a person has committed a felony, the officer warns the person that he intends to arrest him, and the officer reasonably believes that no means less than such force will prevent the escape. See, e.g., Johnson v. State, 173 Tenn. 134, 114 S.W.2d 819 (1938). The District Court held that the Tennessee statute is constitutional and that Hymon’s actions as authorized by that statute did not violate Garner’s constitutional rights. The Court of Appeals for the Sixth Circuit reversed on the grounds that the Tennessee statute “authorizing the killing of an unarmed, nonviolent fleeing felon by police in order to prevent escape” violates the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment. 710 F.2d 240, 244 (1983).

          The Court affirms on the ground that application of the Tennessee statute to authorize Officer Hymon’s use of deadly force constituted an unreasonable seizure in violation of the Fourth Amendment. The precise issue before the Court deserves emphasis, because both the decision below and the majority obscure what must be decided in this case. The issue is not the constitutional validity of the Tennessee statute on its face or as applied to some hypothetical set of facts. Instead, the issue is whether the use of deadly force by Officer Hymon under the circumstances of this case violated Garner’s constitutional rights. Thus, the majority’s assertion that a police officer who has probable cause to seize a suspect “may not always do so by killing him,” ante, at 9, is unexceptionable but also of little relevance to the question presented here. The same is true of the rhetorically stirring statement that “[t]he use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable.” Ante, at 11. The question we must address is whether the Constitution allows the use of such force to apprehend a suspect who resists arrest by attempting to flee the scene of a nighttime burglary of a residence.

II

          For purposes of Fourth Amendment analysis, I agree with the Court that Officer Hymon “seized” Garner by shooting him. Whether that seizure was reasonable and therefore permitted by the Fourth Amendment requires a careful balancing of the important public interest in crime prevention and detection and the nature and quality of the intrusion upon legitimate interests of the individual. United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637 2642, 77 L.Ed.2d 110 (1983). In striking this balance here, it is crucial to acknowledge that police use of deadly force to apprehend a fleeing criminal suspect falls within the “rubric of police conduct . . . necessarily [involving] swift action predicated upon the on-the-spot observations of the officer on the beat.” Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 18681879, 20 L.Ed.2d 889 (1968). The clarity of hindsight cannot provide the standard for judging the reasonableness of police decisions made in uncertain and often dangerous circumstances. Moreover, I am far more reluctant than is the Court to conclude that the Fourth Amendment proscribes a police practice that was accepted at the time of the adoption of the Bill of Rights and has continued to receive the support of many state legislatures. Although the Court has recognized that the requirements of the Fourth Amendment must respond to the reality of social and technological change, fidelity to the notion of constitutional—as opposed to purely judicial—limits on governmental action requires us to impose a heavy burden on those who claim that practices accepted when the Fourth Amendment was adopted are now constitutionally impermissible. See, e.g., United States v. Watson, 423 U.S. 411, 416-421, 96 S.Ct. 820, 824-827, 46 L.Ed.2d 598 (1976); Carroll v. United States, 267 U.S. 132, 149-153, 45 S.Ct. 280, 283-285, 69 L.Ed. 543 (1925). Cf. United States v. Villamonte-Marquez, 462 U.S. 579, 585, 103 S.Ct. 25732582, 77 L.Ed.2d 22 (1983) (noting “impressive historical pedigree” of statute challenged under Fourth Amendment).

          The public interest involved in the use of deadly force as a last resort to apprehend a fleeing burglary suspect relates primarily to the serious nature of the crime. Household burglaries not only represent the illegal entry into a person’s home, but also “pos[e] real risk of serious harm to others.” Solem v. Helm, 463 U.S. 277, 315-316, 103 S.Ct. 3001 3023, 77 L.Ed.2d 637 (1983) (BURGER, C.J., dissenting). According to recent Department of Justice statistics, “[t]hree-fifths of all rapes in the home, three-fifths of all home robberies, and about a third of home aggravated and simple assaults are committed by burglars.” Bureau of Justice Statistics Bulletin, Household Burglary 1 (January 1985). During the period 1973-1982, 2.8 million such violent crimes were committed in the course of burglaries. Ibid. Victims of a forcible intrusion into their home by a nighttime prowler will find little consolation in the majority’s confident assertion that “burglaries only rarely involve physical violence.” Ante, at 21. Moreover, even if a particular burglary, when viewed in retrospect, does not involve physical harm to others, the “harsh potentialities for violence” inherent in the forced entry into a home preclude characterization of the crime as “innocuous, inconsequential, minor, or ‘nonviolent.’ ” Solem v. Helm, supra, at 316, 103 S.Ct., at 3023 (BURGER, C.J., dissenting). See also Restatement of Torts § 131, Comment g (1934) (burglary is among felonies that normally cause or threaten death or serious bodily harm); R. Perkins & R. Boyce, Criminal Law 1110 (3d ed. 1982) (burglary is dangerous felony that creates unreasonable risk of great personal harm).

          Because burglary is a serious and dangerous felony, the public interest in the prevention and detection of the crime is of compelling importance. Where a police officer has probable cause to arrest a suspected burglar, the use of deadly force as a last resort might well be the only means of apprehending the suspect. With respect to a particular burglary, subsequent investigation simply cannot represent a substitute for immediate apprehension of the criminal suspect at the scene. See President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: The Challenge of Crime in a Free Society 97 (1967). Indeed, the Captain of the Memphis Police Department testified that in his city, if apprehension is not immediate, it is likely that the suspect will not be caught. App. in No. 81-5605 (CA6), p. 334. Although some law enforcement agencies may choose to assume the risk that a criminal will remain at large, the Tennessee statute reflects a legislative determination that the use of deadly force in prescribed circumstances will serve generally to protect the public. Such statutes assist the police in apprehending suspected perpetrators of serious crimes and provide notice that a lawful police order to stop and submit to arrest may not be ignored with impunity. See, e.g., Wiley v. Memphis Police Department, 548 F.2d 1247, 1252-1253 (CA6), cert. denied, 434 U.S. 822, 98 S.Ct. 65, 54 L.Ed.2d 78 (1977); Jones v. Marshall, 528 F.2d 132, 142 (CA2 1975).

          The Court unconvincingly dismisses the general deterrence effects by stating that “the presently available evidence does not support [the] thesis” that the threat of force discourages escape and that “there is a substantial basis for doubting that the use of such force is an essential attribute to the arrest power in all felony cases.” Ante, at 10, 11. There is no question that the effectiveness of police use of deadly force is arguable and that many States or individual police departments have decided not to authorize it in circumstances similar to those presented here. But it should go without saying that the effectiveness or popularity of a particular police practice does not determine its constitutionality. Cf. Spaziano v. Florida, 468 U.S. 447, 464, 104 S.Ct. 3154 3164, 82 L.Ed.2d 340 (1984) (“The Eighth Amendment is not violated every time a State reaches a conclusion different from a majority of its sisters over how best to administer its criminal laws”). Moreover, the fact that police conduct pursuant to a state statute is challenged on constitutional grounds does not impose a burden on the State to produce social science statistics or to dispel any possible doubts about the necessity of the conduct. This observation, I believe, has particular force where the challenged practice both predates enactment of the Bill of Rights and continues to be accepted by a substantial number of the States.

          Against the strong public interests justifying the conduct at issue here must be weighed the individual interests implicated in the use of deadly force by police officers. The majority declares that “[t]he suspect’s fundamental interest in his own life need not be elaborated upon.” Ante, at 9. This blithe assertion hardly provides an adequate substitute for the majority’s failure to acknowledge the distinctive manner in which the suspect’s interest in his life is even exposed to risk. For purposes of this case, we must recall that the police officer, in the course of investigating a nighttime burglary, had reasonable cause to arrest the suspect and ordered him to halt. The officer’s use of force resulted because the suspected burglar refused to heed this command and the officer reasonably believed that there was no means short of firing his weapon to apprehend the suspect. Without questioning the importance of a person’s interest in his life, I do not think this interest encompasses a right to flee unimpeded from the scene of a burglary. Cf. Payton v. New York, 445 U.S. 573, 617, n. 14, 100 S.Ct. 1371, 1395, n. 14, 63 L.Ed.2d 639 (1980) (WHITE, J., dissenting) (“[T]he policeman’s hands should not be tied merely because of the possibility that the suspect will fail to cooperate with legitimate actions by law enforcement personnel”). The legitimate interests of the suspect in these circumstances are adequately accommodated by the Tennessee statute: to avoid the use of deadly force and the consequent risk to his life, the suspect need merely obey the valid order to halt.

          A proper balancing of the interests involved suggests that use of deadly force as a last resort to apprehend a criminal suspect fleeing from the scene of a nighttime burglary is not unreasonable within the meaning of the Fourth Amendment. Admittedly, the events giving rise to this case are in retrospect deeply regrettable. No one can view the death of an unarmed and apparently nonviolent 15-year-old without sorrow, much less disapproval. Nonetheless, the reasonableness of Officer Hymon’s conduct for purposes of the Fourth Amendment cannot be evaluated by what later appears to have been a preferable course of police action. The officer pursued a suspect in the darkened backyard of a house that from all indications had just been burglarized. The police officer was not certain whether the suspect was alone or unarmed; nor did he know what had transpired inside the house. He ordered the suspect to halt, and when the suspect refused to obey and attempted to flee into the night, the officer fired his weapon to prevent escape. The reasonableness of this action for purposes of the Fourth Amendment is not determined by the unfortunate nature of this particular case; instead, the question is whether it is constitutionally impermissible for police officers, as a last resort, to shoot a burglary suspect fleeing the scene of the crime.

          Because I reject the Fourth Amendment reasoning of the majority and the Court of Appeals, I briefly note that no other constitutional provision supports the decision below. In addition to his Fourth Amendment claim, appellee-respondent also alleged violations of due process, the Sixth Amendment right to trial by jury, and the Eighth Amendment proscription of cruel and unusual punishment. These arguments were rejected by the District Court and, except for the due process claim, not addressed by the Court of Appeals. With respect to due process, the Court of Appeals reasoned that statutes affecting the fundamental interest in life must be “narrowly drawn to express only the legitimate state interests at stake.” 710 F.2d, at 245. The Court of Appeals concluded that a statute allowing police use of deadly force is narrowly drawn and therefore constitutional only if the use of such force is limited to situations in which the suspect poses an immediate threat to others. Id., at 246-247. Whatever the validity of Tennessee’s statute in other contexts, I cannot agree that its application in this case resulted in a deprivation “without due process of law.” Cf. Baker v. McCollan, 443 U.S. 137, 144-145, 99 S.Ct. 2689, 2694-2695, 61 L.Ed.2d 433 (1979). Nor do I believe that a criminal suspect who is shot while trying to avoid apprehension has a cognizable claim of a deprivation of his Sixth Amendment right to trial by jury. See Cunningham v. Ellington, 323 F.Supp. 1072, 1075-1076 (WD Tenn.1971) (three-judge court). Finally, because there is no indication that the use of deadly force was intended to punish rather than to capture the suspect, there is no valid claim under the Eighth Amendment. See Bell v. Wolfish, 441 U.S. 520, 538-539, 99 S.Ct. 1861, 1873-1874, 60 L.Ed.2d 447 (1979). Accordingly, I conclude that the District Court properly entered judgment against appellee-respondent, and I would reverse the decision of the Court of Appeals.

III

          Even if I agreed that the Fourth Amendment was violated under the circumstances of this case, I would be unable to join the Court’s opinion. The Court holds that deadly force may be used only if the suspect “threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm.” Ante, at 11. The Court ignores the more general implications of its reasoning. Relying on the Fourth Amendment, the majority asserts that it is constitutionally unreasonable to use deadly force against fleeing criminal suspects who do not appear to pose a threat of serious physical harm to others. Ibid. By declining to limit its holding to the use of firearms, the Court unnecessarily implies that the Fourth Amendment constrains the use of any police practice that is potentially lethal, no matter how remote the risk. Cf. Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983).

          Although it is unclear from the language of the opinion, I assume that the majority intends the word “use” to include only those circumstances in which the suspect is actually apprehended. Absent apprehension of the suspect, there is no “seizure” for Fourth Amendment purposes. I doubt that the Court intends to allow criminal suspects who successfully escape to return later with § 1983 claims against officers who used, albeit unsuccessfully, deadly force in their futile attempt to capture the fleeing suspect. The Court’s opinion, despite its broad language, actually decides only that the shooting of a fleeing burglary suspect who was in fact neither armed nor dangerous can support a § 1983 action.

          The Court’s silence on critical factors in the decision to use deadly force simply invites second-guessing of difficult police decisions that must be made quickly in the most trying of circumstances. Cf. Payton v. New York, 445 U.S., at 619, 100 S.Ct., at 1396 (WHITE, J., dissenting). Police are given no guidance for determining which objects, among an array of potentially lethal weapons ranging from guns to knives to baseball bats to rope, will justify the use of deadly force. The Court also declines to outline the additional factors necessary to provide “probable cause” for believing that a suspect “poses a significant threat of death or serious physical injury,” ante, at 3, when the officer has probable cause to arrest and the suspect refuses to obey an order to halt. But even if it were appropriate in this case to limit the use of deadly force to that ambiguous class of suspects, I believe the class should include nighttime residential burglars who resist arrest by attempting to flee the scene of the crime. We can expect an escalating volume of litigation as the lower courts struggle to determine if a police officer’s split-second decision to shoot was justified by the danger posed by a particular object and other facts related to the crime. Thus, the majority opinion portends a burgeoning area of Fourth Amendment doctrine concerning the circumstances in which police officers can reasonably employ deadly force.

IV

          The Court’s opinion sweeps broadly to adopt an entirely new standard for the constitutionality of the use of deadly force to apprehend fleeing felons. Thus, the Court “lightly brushe[s] aside,” Payton v. New York, supra, at 600, 100 S.Ct., at 1387, a long-standing police practice that predates the Fourth Amendment and continues to receive the approval of nearly half of the state legislatures. I cannot accept the majority’s creation of a constitutional right to flight for burglary suspects seeking to avoid capture at the scene of the crime. Whatever the constitutional limits on police use of deadly force in order to apprehend a fleeing felon, I do not believe they are exceeded in a case in which a police officer has probable cause to arrest a suspect at the scene of a residential burglary, orders the suspect to halt, and then fires his weapon as a last resort to prevent the suspect’s escape into the night. I respectfully dissent.

1. The owner of the house testified that no lights were on in the house, but that a back door light was on. Record 160. Officer Hymon, though uncertain, stated in his deposition that there were lights on in the house. Id., at 209.

2. In fact, Garner, an eighth-grader, was 15. He was 5′ 4″ tall and weighed somewhere around 100 or 110 pounds. App. to Pet. for Cert. A5.

3. When asked at trial why he fired, Hymon stated:

“Well, first of all it was apparent to me from the little bit that I knew about the area at the time that he was going to get away because, number 1, I couldn’t get to him. My partner then couldn’t find where he was because, you know, he was late coming around. He didn’t know where I was talking about. I couldn’t get to him because of the fence here, I couldn’t have jumped this fence and come up, consequently jumped this fence and caught him before he got away because he was already up on the fence, just one leap and he was already over the fence, and so there is no way that I could have caught him.” App. 52.

He also stated that the area beyond the fence was dark, that he could not have gotten over the fence easily because he was carrying a lot of equipment and wearing heavy boots, and that Garner, being younger and more energetic, could have outrun him. Id., at 53-54.

4. Garner had rummaged through one room in the house, in which, in the words of the owner, “[a]ll the stuff was out on the floors, all the drawers was pulled out, and stuff was scattered all over.” Id., at 34. The owner testified that his valuables were untouched but that, in addition to the purse and the 10 dollars, one of his wife’s rings was missing. The ring was not recovered. Id.., at 34-35.

5. Although the statute does not say so explicitly, Tennessee law forbids the use of deadly force in the arrest of a misdemeanant. See Johnson v. State, 173 Tenn. 134, 114 S.W.2d 819 (1938).

6. “The right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated. . . .” U.S. Const., Amdt. 4.

7. The Court of Appeals concluded that the rule set out in the Model Penal Code “accurately states Fourth Amendment limitations on the use of deadly force against fleeing felons.” 710 F.2d, at 247. The relevant portion of the Model Penal Code provides:

“The use of deadly force is not justifiable . . . unless (i) the arrest is for a felony; and (ii) the person effecting the arrest is authorized to act as a peace officer; or is assisting a person whom he believes to be authorized to act as a peace officer, and (iii) the actor believes that the force employed creates no substantial risk of injury to innocent persons; and (iv) the actor believes that (1) the crime for which the arrest is made involved conduct including the use or threatened use of deadly force; or (2) there is a substantial risk that the person to be arrested will cause death or serious bodily harm if his apprehension is delayed.” American Law Institute, Model Penal Code § 3.07(2)(b) (Proposed Official Draft 1962).

The court also found that “[a]n analysis of the facts of this case under the Due Process Clause” required the same result, because the statute was not narrowly drawn to further a compelling state interest. 710 F.2d, at 246-247. The court considered the generalized interest in effective law enforcement sufficiently compelling only when the suspect is dangerous. Finally, the court held, relying on Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), that the city was not immune.

8. The dissent emphasizes that subsequent investigation cannot replace immediate apprehension. We recognize that this is so, see n. 13, infra; indeed, that is the reason why there is any dispute. If subsequent arrest were assured, no one would argue that use of deadly force was justified. Thus, we proceed on the assumption that subsequent arrest is not likely. Nonetheless, it should be remembered that failure to apprehend at the scene does not necessarily mean that the suspect will never be caught.

In lamenting the inadequacy of later investigation, the dissent relies on the report of the President’s Commission on Law Enforcement and Administration of Justice. It is worth noting that, notwithstanding its awareness of this problem, the Commission itself proposed a policy for use of deadly force arguably even more stringent than the formulation we adopt today. See President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: The Police 189 (1967). The Commission proposed that deadly force be used only to apprehend “perpetrators who, in the course of their crime threatened the use of deadly force, or if the officer believes there is a substantial risk that the person whose arrest is sought will cause death or serious bodily harm if his apprehension is delayed.” In addition, the officer would have “to know, as a virtual certainty, that the suspect committed an offense for which the use of deadly force is permissible.” Ibid.

9. We note that the usual manner of deterring illegal conduct through punishment—has been largely ignored in connection with flight from arrest. Arkansas, for example, specifically excepts flight from arrest from the offense of “obstruction of governmental operations.” The commentary notes that this “reflects the basic policy judgment that, absent the use of force or violence, a mere attempt to avoid apprehension by a law enforcement officer does not give rise to an independent offense.” Ark.Stat.Ann. § 41-2802(3)(a) (1977) and commentary. In the few States that do outlaw flight from an arresting officer, the crime is only a misdemeanor. See, e.g., Ind.Code § 35-44-3-3 (1982). Even forceful resistance, though generally a separate offense, is classified as a misdemeanor. E.g., Ill.Rev.Stat., ch. 38, ¶ 31-1 (1984); Mont.Code Ann. § 45-7-301 (1984); N.H.Rev.Stat.Ann. § 642:2 (Supp.1983); Ore.Rev.Stat. § 162.315 (1983).

This lenient approach does avoid the anomaly of automatically transforming every fleeing misdemeanant into a fleeing felon subject, under the common-law rule, to apprehension by deadly force—solely by virtue of his flight. However, it is in real tension with the harsh consequences of flight in cases where deadly force is employed. For example, Tennessee does not outlaw fleeing from arrest. The Memphis City Code does, § 22-34.1 (Supp.17, 1971), subjecting the offender to a maximum fine of $50, § 1-8 (1967). Thus, Garner’s attempted escape subjected him to (a) a $50 fine, and (b) being shot.

10. See Sherman, Reducing Police Gun Use, in Control in the Police Organization 98, 120-123 (M. Punch ed. 1983); Fyfe, Observations on Police Deadly Force, 27 Crime & Delinquency 376, 378-381 (1981); W. Geller & K. Karales, Split-Second Decisions 67 (1981); App. 84 (affidavit of William Bracey, Chief of Patrol, New York City Police Department). See generally Brief for Police Foundation et al. as Amici Curiae.

11. The roots of the concept of a “felony” lie not in capital punishment but in forfeiture. 2 F. Pollock & F. Maitland, The History of English Law 465 (2d ed. 1909) (hereinafter Pollock & Maitland). Not all felonies were always punishable by death. See id., at 466-467, n. 3. Nonetheless, the link was profound. Blackstone was able to write: “The idea of felony is indeed so generally connected with that of capital punishment, that we find it hard to separate them; and to this usage the interpretations of the law do now conform. And therefore if a statute makes any new offence felony, the law implies that is shall be punished with death, viz. by hanging, as well as with forfeiture. . . .” 4 W. Blackstone, Commentaries *98. See also R. Perkins & R. Boyce, Criminal Law 14-15 (3d ed. 1982); 2 Pollock & Maitland 511.

12. White-collar crime, for example, poses a less significant physical threat than, say, drunken driving. See Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984); id., at 755, 104 S.Ct., at 2100 (BLACKMUN, J., concurring). See Model Penal Code Comment, at 57.

13. It has been argued that sophisticated techniques of apprehension and increased communication between the police in different jurisdictions have made it more likely that an escapee will be caught than was once the case, and that this change has also reduced the “reasonableness” of the use of deadly force to prevent escape. E.g., Sherman, Execution Without Trial: Police Homicide and the Constitution, 33 Vand.L.Rev. 71, 76 (1980). We are unaware of any data that would permit sensible evaluation of this claim. Current arrest rates are sufficiently low, however, that we have some doubt whether in past centuries the failure to arrest at the scene meant that the police had missed their only chance in a way that is not presently the case. In 1983, 21% of the offenses in the Federal Bureau of Investigation crime index were cleared by arrest. Federal Bureau of Investigation, Uniform Crime Reports, Crime in the United States 159 (1984). The clearance rate for burglary was 15%. Ibid.

14. Ala.Code § 13A-3-27 (1982); Ark.Stat.Ann. § 41-510 (1977); Cal.Penal Code Ann. § 196 (West 1970); Conn.Gen.Stat. § 53a-22 (1972); Fla.Stat. § 776.05 (1983); Idaho Code § 19-610 (1979); Ind.Code § 35-41-3-3 (1982); Kan.Stat.Ann. § 21-3215 (1981); Miss.Code Ann. § 97-3-15(d) (Supp.1984); Mo.Rev.Stat. § 563.046 (1979); Nev.Rev.Stat. § 200.140 (1983); N.M.Stat.Ann. § 30-2-6 (1984); Okla.Stat., Tit. 21, § 732 (1981); R.I.Gen.Laws § 12-7-9 (1981); S.D. Codified Laws §§ 22-16-32, 22-16-33 (1979); Tenn.Code Ann. § 40-7-108 (1982); Wash.Rev.Code § 9A.16.040(3) (1977). Oregon limits use of deadly force to violent felons, but also allows its use against any felon if “necessary.” Ore.Rev.Stat. § 161.239 (1983). Wisconsin’s statute is ambiguous, but should probably be added to this list. Wis.Stat. § 939.45(4) (1981-1982) (officer may use force necessary for “a reasonable accomplishment of a lawful arrest”). But see Clark v. Ziedonis, 368 F.Supp. 544 (ED Wis.1973), aff’d on other grounds, 513 F.2d 79 (CA7 1975).

15. In California, the police may use deadly force to arrest only if the crime for which the arrest is sought was “a forcible and atrocious one which threatens death or serious bodily harm,” or there is a substantial risk that the person whose arrest is sought will cause death or serious bodily harm if apprehension is delayed. Kortum v. Alkire, 69 Cal.App.3d 325, 333, 138 Cal.Rptr. 26, 30-31 (1977). See also People v. Ceballos, 12 Cal.3d 470, 476-484, 116 Cal.Rptr. 233, 237-242, 526 P.2d 241, 245-250 (1974); Long Beach Police Officers Assn. v. Long Beach, 61 Cal.App.3d 364, 373-374, 132 Cal.Rptr. 348, 353-354 (1976). In Indiana, deadly force may be used only to prevent injury, the imminent danger of injury or force, or the threat of force. It is not permitted simply to prevent escape. Rose v. State, 431 N.E.2d 521 (Ind.App.1982).

16. These are Michigan, Ohio, Virginia, and West Virginia. Werner v. Hartfelder, 113 Mich.App. 747, 318 N.W.2d 825 (1982); State v. Foster, 60 Ohio Misc. 46, 59-66, 396 N.E.2d 246, 255-258 (Com.Pl.1979) (citing cases); Berry v. Hamman, 203 Va. 596, 125 S.E.2d 851 (1962); Thompson v. Norfolk & W.R. Co., 116 W.Va. 705, 711-712, 182 S.E. 880, 883-884 (1935).

17. Haw.Rev.Stat. § 703-307 (1976); Neb.Rev.Stat. § 28-1412 (1979). Massachusetts probably belongs in this category. Though it once rejected distinctions between felonies, Uraneck v. Lima, 359 Mass. 749, 750, 269 N.E.2d 670, 671 (1971), it has since adopted the Model Penal Code limitations with regard to private citizens, Commonwealth v. Klein, 372 Mass. 823, 363 N.E.2d 1313 (1977), and seems to have extended that decision to police officers, Julian v. Randazzo, 380 Mass. 391, 403 N.E.2d 931 (1980).

18. Alaska Stat.Ann. § 11.81.370(a) (1983); Ariz.Rev.Stat.Ann. § 13-410 (1978); Colo.Rev.Stat. § 18-1-707 (1978); Del.Code Ann., Tit. 11, § 467 (1979) (felony involving physical force and a substantial risk that the suspect will cause death or serious bodily injury or will never be recaptured); Ga.Code § 16-3-21(a) (1984); Ill.Rev.Stat., ch. 38, ¶ 7-5 (1984); Iowa Code § 804.8 (1983) (suspect has used or threatened deadly force in commission of a felony, or would use deadly force if not caught); Ky.Rev.Stat. § 503.090 (1984) (suspect committed felony involving use or threat of physical force likely to cause death or serious injury, and is likely to endanger life unless apprehended without delay); Me.Rev.Stat.Ann., Tit. 17-A, § 107 (1983) (commentary notes that deadly force may be used only “where the person to be arrested poses a threat to human life”); Minn.Stat. § 609.066 (1984); N.H.Rev.Stat.Ann. § 627:5(II) (Supp.1983); N.J.Stat.Ann. § 2C-3-7 (West 1982); N.Y.Penal Law § 35.30 (McKinney Supp. 1984-1985); N.C.Gen.Stat. § 15A-401 (1983); N.D.Cent.Code § 12.1-05-07.2.d (1976); 18 Pa.Cons.Stat. § 508 (1982); Tex.Penal Code Ann. § 9.51(c) (1974); Utah Code Ann. § 76-2-404 (1978).

19. See La.Rev.Stat.Ann. § 14:20(2) (West 1974); Vt.Stat.Ann., Tit. 13, § 2305 (1974 and Supp.1984). A Federal District Court has interpreted the Louisiana statute to limit the use of deadly force against fleeing suspects to situations where “life itself is endangered or great bodily harm is threatened.” Sauls v. Hutto, 304 F.Supp. 124, 132 (ED La.1969).

20. These are Maryland, Montana, South Carolina, and Wyoming. A Maryland appellate court has indicated, however, that deadly force may not be used against a felon who “was in the process of fleeing and, at the time, presented no immediate danger to . . . anyone. . . .” Giant Food, Inc. v. Scherry, 51 Md.App. 586, 589, 596, 444 A.2d 483, 486, 489 (1982).

21. In adopting its current statute in 1979, for example, Alabama expressly chose the common-law rule over more restrictive provisions. Ala.Code 13A-3-27, Commentary, pp. 67-68 (1982). Missouri likewise considered but rejected a proposal akin to the Model Penal Code rule. See Mattis v. Schnarr, 547 F.2d 1007, 1022 (CA8 1976) (Gibson, C.J., dissenting), vacated as moot sub nom. Ashcroft v. Mattis, 431 U.S. 171, 97 S.Ct. 1739 52 L.Ed.2d 219 (1977). Idaho, whose current statute codifies the common-law rule, adopted the Model Penal Code in 1971, but abandoned it in 1972.

22. In a recent report, the Department of Corrections of the District of Columbia also noted that “there is nothing inherently dangerous or violent about the offense,” which is a crime against property. D.C. Department of Corrections, Prisoner Screening Project 2 (1985).

23. The dissent points out that three-fifths of all rapes in the home, three-fifths of all home robberies, and about a third of home assaults are committed by burglars. Post, at 26-27. These figures mean only that if one knows that a suspect committed a rape in the home, there is a good chance that the suspect is also a burglar. That has nothing to do with the question here, which is whether the fact that someone has committed a burglary indicates that he has committed, or might commit, a violent crime.

The dissent also points out that this 3.8% adds up to 2.8 million violent crimes over a 10-year period, as if to imply that today’s holding will let loose 2.8 million violent burglars. The relevant universe is, of course, far smaller. At issue is only that tiny fraction of cases where violence has taken place and an officer who has no other means of apprehending the suspect is unaware of its occurrence.

Mar 29 15

“No-Knock” Raids by Law Enforcement (In Brief)

by merlin

A recent article that drew my attention permitted the use of “no-knock” warrants absent even what are known as exigent circumstances (defined by Black’s Law Dictionary as “the circumstances that exist in emergency situations where there is a serious risk to other people”, and expanded under the cases to also include destruction of evidence).  This was, according to the media, the same argument that was used to justify the recent headlines concerning a no-knock raid in Habersham County, Georgia, that resulted in a severely disfigured toddler.

Therefore, it made me wonder if the requirement of “exigent circumstances” had been dispensed with since I last studied this issue.  In Georgia, at least, it has not.

Paragraph XIII of Article I, Section I, of the Bill of Rights the Constitution of the State of Georgia, reflecting the Fourth Amendment to the Constitution of the United States, reads as follows:

“Paragraph XIII. Searches, seizures, and warrants. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue except upon probable cause supported by oath or affirmation particularly describing the place or places to be searched and the persons or things to be seized.”

This law remains validly obeyed in this State and consistently interpreted by its judges, to the best of my knowledge, and I present the case of Arp v. State, 327 Ga.App. 340, 759 S.E.2d 57 (Ga. App. 2014), as an excellent illustration of exactly how the exigent circumstances doctrine can be used as a shield to cut unlawful police activity off at the knees:

effrey Wynn Cofer, Jonesboro, Jared Scott Westbroek, for Appellant.

David Eugene Slemons, James Luther Wright III, for Appellee.

BRANCH, Judge.

         In an attempt to arrest Christopher Watson pursuant to an arrest warrant, law enforcement officers entered the curtilage of Kenneth Ray Arp’s home by approaching Arp’s back door where, based on the officers’ observations of events inside the house, they entered without consent and discovered marijuana. Watson had no relation to Arp, was not in Arp’s home, and did not live there. After a stipulated bench trial, Arp was convicted of marijuana possession and making terroristic threats. On appeal, Arp contends the trial court erred by denying his motion to suppress the evidence used against him. He contends that neither the arrest warrant nor the surrounding circumstances authorized the officers to enter the curtilage of his home and that, therefore, the ensuing search was illegal. We agree and reverse.

         A trial judge’s findings of fact on a motion to suppress should not be disturbed if there is any evidence to support them; determinations of fact and credibility must be accepted unless clearly erroneous; and the evidence must be construed most favorably to the upholding of the trial court’s findings and judgment. Tate v. State, 264 Ga. 53, 54(1), 440 S.E.2d 646 (1994);Jackson v. State, 258 Ga.App. 806, 807–808(2), 575 S.E.2d 713 (2002). Where the trial court denies the motion to suppress without explanation or findings of fact, we construe the facts in favor of the trial court’s decision. Corey v. State, 320 Ga.App. 350, 351, 739 S.E.2d 790 (2013).

        The record of the hearing on the motion to suppress shows that on February 5, 2013, Sergeant Dan Blythe of the Henry County Police Department and other officers from Flint and Clayton County were attempting to arrest Watson pursuant to an arrest warrant dated January 10, 2013 for misdemeanor obstruction of an officer, which listed Watson’s address as 137 Chestnut Lane in McDonough. Blythe was familiar with Watson and his family, and Blythe and other officers were aware that Watson had a reputation of running from and fighting with police, stealing, and breaking into houses. In fact, Watson had fled some of the same officers earlier that day.

        Blythe and the other officers went to the Watson home at the address shown on the warrant and spoke with Watson’s mother, but Watson was not there. Watson’s mother told the officers that Watson had been picked up that day by a woman named Wendy Wilson in a small red car. Blythe then used a police computer to determine that Wilson had a “previous address” or “last known location” of 487 Lakeshore Drive. Both Blythe and other officers knew that the house located at 487 Lakeshore Drive was not Watson’s residence. The officers did not have a search warrant for the Lakeshore Drive address, and they did not perform a computer search to determine if Wilson still lived there or who was listed as a resident.

        Blythe and the other officers drove to 487 Lakeshore Drive, arriving in the dark, and they saw a red Chrysler Sebring parked either in the driveway or on the side of the property, facing out, such that the license tag could only be seen from the back. While other officers approached the front door, Blythe, Sergeant Romano, and Sergeant Fowler ran past the Chrysler to the back of the property without stopping to check the license tag of the red car as they passed it. Blythe testified that he saw there was no fence in the back, “so we found the back door and kind of got in the area of the back door while the other agents knocked on the front door”; Romano was positioned “just shy of the back door.” The blinds were partially up on the window located beside the back door. Blythe also testified that before he got to the door, he saw movement inside of the house from a point near the property line and that he and Fowler then moved up to the back door and window to see what was happening and for officer safety, to make sure that the person was not grabbing a weapon. From his position at the back door, Blythe looked through the window and saw a woman speak with another person in a hallway at the door to the bedroom. Blythe then saw the woman run into the bedroom where she grabbed something, then run to the bathroom, run back to the bedroom to grab a closed, clear plastic container, and come back to the bathroom, passing so close to Blythe that he could see what appeared to be marijuana in the container.

        Blythe told Fowler and Romano what he had seen, and the officers therefore decided to enter the back door of the house “for the sole purpose of preventing [the woman] from destroying what we believed to be … marijuana.” The officers yelled “police,” opened the unlocked back door, and seized the marijuana in the bathroom. Based on the seizure and Arp’s statements to Sergeant Romano after Romano entered the home, Arp was charged with possession of more than an ounce of marijuana and with making terroristic threats. Neither Watson, the subject of the arrest warrant, nor Wilson were found in the Arps’ home.

        Arp testified that his wife had purchased the home in foreclosure the previous June or July and that Arp owned the Chrysler. Arp testified that the Chrysler was parked in his front yard, not in the driveway. He testified that he did not know Watson or Wilson and that when officers arrived at his front door that night, he opened the door but did not consent to the officers entering the home.

        Arp moved to suppress all the evidence and alleged contraband seized in his home including any fruit of the illegal search and seizure. The trial court denied Arp’s motion without explanation or findings of fact. In accordance with a stipulation of the parties, the court adopted the testimony from the hearing on the motion to suppress as the trial evidence and, based on that and other stipulated evidence, the court found Arp guilty of possession of marijuana and making terroristic threats. Arp appeals the ruling on the motion to suppress.

         1. The Fourth Amendment protects against “unreasonable searches and seizures[.]” U.S. Const. Amend. IV. This protection has been interpreted to mean that even if officers have probable cause, absent exigent circumstances or proper consent, warrantless searches and seizures within a home by officers in pursuit of their traditional law enforcement duties are presumptively unreasonable. See, e.g., Kentucky v. King, ––– U.S. ––––(II)(A), 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011); Payton v. New York, 445 U.S. 573, 589(II), 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). The United States Supreme Court has further clarified that an arrest warrant is an insufficient basis, standing alone, to search a third party’s home:

        [E]ven when armed with an arrest warrant, police must have either a search warrant, exigent circumstances or consent to lawfully enter a third person’s home to arrest someone who does not reside there. Steagald v. United States, 451 U.S. 204, 212–215(III), 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981); King v. State, 217 Ga.App. 889, 891, 459 S.E.2d 605 (1995).

Brown v. State, 240 Ga.App. 321, 322(1), 523 S.E.2d 333 (1999). In Steagald, the Supreme Court held that even if officers have a reasonable belief that the subject of the arrest warrant is in the third party’s home, the officers may not enter that home without a search warrant, exigent circumstances or consent. Steagald, 451 U.S. at 214(III), 101 S.Ct. 1642. The protections afforded by the Fourth Amendment extend to the home and its curtilage. Oliver v. United States, 466 U.S. 170, 180(III)(A), 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984); see also United States v. Dunn, 480 U.S. 294, 300(II), 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987); Kirsche v. State, 271 Ga.App. 729, 731, 611 S.E.2d 64 (2005) (even if officers have probable cause to investigate a crime, without a warrant, exigent circumstances, or proper consent, they may not enter a home or its curtilage). Finally, the State has the burden of proving that a search or seizure was lawful. OCGA § 17–5–30(b).

        Arp does not contest that if the officers were properly located at the back door, they had authority to look in the window and, upon observing what appeared to be contraband and an attempt to dispose of it, authority to enter the home to prevent the destruction of evidence and to seize it. See King v. State, 289 Ga.App. 461, 463–464(2), 657 S.E.2d 570 (2008), and cases cited therein. Rather, he contends that the officers were not authorized to enter his back yard or the back door area in the first place. We agree.

         First, the back yard and back door area of the Arps’ home fall within the general definition of the curtilage of the home. Curtilage has been described as “the area immediately surrounding a dwelling house,” and the extent of the curtilage “is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself.” Dunn, 480 U.S. at 300(II), 107 S.Ct. 1134 (citation omitted). The Supreme Court of Georgia has defined curtilage as “the yards and grounds of a particular address, its gardens, barns, and buildings.” Espinoza v. State, 265 Ga. 171, 173(2), 454 S.E.2d 765 (1995) (citation and punctuation omitted). “It is the general rule that a warrant is required to search the curtilage, and the yard immediately surrounding one’s dwelling is well within the curtilage.” (Citations omitted.) Phillips v. State, 167 Ga.App. 260, 261(1)(a), 305 S.E.2d 918 (1983). See, e.g., Rivers v. State, 287 Ga.App. 632, 634(1)(b), 653 S.E.2d 78 (2007) (curtilage included hedge area adjacent to side of house even if the back yard was exposed to an alley and not enclosed by a fence); Brooks v. State, 237 Ga.App. 546, 548(2), 515 S.E.2d 851 (1999) (truck parked outside back door of mobile home was within curtilage of premises).

        Second, the State did not carry its burden of showing an exception to Arp’s Fourth Amendment right to protection of the back yard/door curtilage of his home. A photograph of the back of the house shows that neither the door nor the window are visible from the front of the house and that they could only have been seen from the back yard. And the State did not present any other evidence to show that the back door and window were visible or in plain view from the street or from anywhere the officers were authorized to be upon arriving at the home. SeeGalbreath v. State, 213 Ga.App. 80, 82(2), 443 S.E.2d 664 (1994) (“objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence”) (citation and punctuation omitted). Nor is there evidence that Arp and his wife treated the back door as a public entrance or that officers were unable to approach the front door or received no response at the front door, any of which may have authorized the officers to proceed to the back yard and door. See State v. Zackery, 193 Ga.App. 319,387 S.E.2d 606 (1989); State v. Lyons, 167 Ga.App. 747, 748, 307 S.E.2d 285 (1983).

        Thus, the State did not carry its burden of showing that the officers were authorized to proceed to the back door and window area of the Arps’ home; the officers therefore entered the protected curtilage of the Arps’ home before they could see the window through which they noticed activity that aroused a concern for officer safety. That concern, therefore, cannot be used to justify the three officers’ entry into the back yard in the first place. See generally Kirsche, 271 Ga.App. at 733, 611 S.E.2d 64 (police may not make protective sweep of house or curtilage without a reasonable and articulable suspicion that area “may be harboring someone who poses a danger to them”) (citation omitted). Compare Alvarez v. State, 312 Ga.App. 552, 557(2), 718 S.E.2d 884 (2011) (officer’s entry into back yard was justified by exigent circumstances of officer safety because he had reason to believe that someone at residence was armed with a gun).

         2. Given that Arp did not consent to a search and that the officers did not have a search warrant to enter the curtilage of the home, the State’s position, therefore, turns on whether the State carried its burden to show that the officers’ entry into Arp’s backyard and the back door area was justified by exigent circumstances. Leon–Velazquez v. State, 269 Ga.App. 760, 762(1),605 S.E.2d 400 (2004) (“Since the officer had neither consent nor a search warrant, he was required to have exigent circumstances [to enter a third party’s home in an attempt to execute a search warrant].”) (footnote omitted).

        Whether exigent circumstances existed is a question of fact, and we review police actions from the standpoint of a hypothetical reasonable officer and must measure those actions from the foresight of an officer acting in a quickly developing situation and not from the hindsight of which judges have benefit.

Lawrence v. State, 298 Ga.App. 94, 97–98, 679 S.E.2d 94 (2009) (punctuation and footnote omitted).

        At the time that Blythe, Fowler and Romano entered the curtilage of Arp’s home, the following facts existed: the officers had a warrant for Watson’s arrest; the officers knew Watson to be a flight risk; one or more officers in the larger group of officers had witnessed Watson flee earlier that day; Watson’s mother said Watson was with Wilson in a red car; Wilson’s last known address in the police information system was 487 Lakeshore Drive; the Lakeshore Drive home was not where Watson lived; the officers discovered a red Chrysler parked at that address that evening; and Blythe and the other officers went to the back of the property because “Watson is personally known to me to run.” What Blythe and the officers who went to the back door did not know is whether anyone answered the front door, whether the house or the Chrysler actually belonged to Wilson, or whether either Wilson and Watson were present at the Arps’ home.

         In general an exigent circumstance “is the officer’s reasonable belief that such action is a necessary response on his part to an emergency situation.” Leon–Velazquez, 269 Ga.App. at 762(1), 605 S.E.2d 400 (punctuation and footnote omitted). “Exigent circumstances include where an officer is in hot pursuit of a fleeing felon, where an officer reasonably fears the imminent destruction of evidence if entry into the residence is not immediately effected, and where an officer reasonably perceives that a suspect within the dwelling poses a risk of danger to the police or others.” Minor v. State, 298 Ga.App. 391, 396–397(1)(b), 680 S.E.2d 459 (2009) (citation, punctuation and footnote omitted).

         Even considering all of the above facts combined, we find no exigent circumstances to enter the Arps’ home or its curtilage. In Steagald, the officers sought to arrest a federal fugitive and they had a reasonable belief that the fugitive might be a guest in the third-party’s home. Steagald, 451 U.S. at 213(III), 101 S.Ct. 1642. Yet the high court held that “forcible entry into a third party’s house was permissible only when the person to be arrested was pursued to the house,” i.e., only when the officers were in “hot pursuit,” which they were not in Steagald.Id. at 218(IV)(A), 101 S.Ct. 1642. The court held that the inconvenience arising from the fact that people are “inherently mobile, and thus officers seeking to effect an arrest may be forced to return to the magistrate several times as the subject of the arrest warrant moves from place to place,” is “simply not that significant.” Id. at 221–223(IV)(B), 101 S.Ct. 1642.

        Here, there is no evidence that the officers were in hot pursuit of Watson. The officers simply went to Wilson’s “last known address” and saw a red Chrysler; they had not previously seen the car themselves and were simply following up on Watson’s mother’s statement about Watson leaving his own home. And they knew that the Lakeshore Drive home was not Watson’s residence. Compare Carter v. State, 308 Ga.App. 686, 688(1), 708 S.E.2d 595 (2011) (arrest warrant for defendant, a flight risk, executed at his place of residence and where he was believed to be, gave officers authority to enter back yard; distinguishing Steagald and other cases where there was “no evidence that the subject of the arrest warrant resided in the third party’s home”). Although Watson was a flight risk, nothing stopped the officers from setting up a perimeter and attempting to obtain a warrant to search the Arps’ home. Because the officers were not authorized to enter the curtilage of the Arps’ home, they were not in a place that they were authorized to be when they saw movement inside of the house or saw Arp’s wife carrying a plastic container of what appeared to be marijuana. The trial court therefore erred by denying Arp’s motion to suppress. Because all of the evidence against Arp presented by the State was discovered as a result of the officer’s illegal search, there was insufficient evidence for a rational trier of fact to find Arp guilty on either charge. Hamlett v. State, 323 Ga.App. 221, 234(2), 753 S.E.2d 118 (2013). Therefore his convictions on both counts must be reversed.

        Judgment reversed.

BARNES, P.J., and BOGGS, J., concur.

Mar 26 15

Attorney’s Fees; Demand Letters in Contract Collection

by merlin
If an attorney contracts to represent someone, and they fail to pay, what can be done?  Suing clients generally is reputed to cause the attorney’s malpractice insurance to go up, but sometimes the debt can amount to several thousand dollars, and it must be paid.

The foundational statute for a suit seeking to collect attorney’s fees on an amount certain under contract (such as a contract for legal services entered into between an attorney and the person or corporation that retained them for a completed task) is Section 13-1-11 of the Official Code of Georgia.  Specifically, the section that is relevant for smaller-sum cases is Section 13-1-11(a), which addresses the value to be sought if it isn’t otherwise specified in the contract and the particulars that the demand letter, sent at least ten (10) days in advance, must contain.  That subsection is below:

“(a) Obligations to pay attorney’s fees upon any note or other evidence of indebtedness, in addition to the rate of interest specified therein, shall be valid and enforceable and collectable as a part of such debt if such note or other evidence of indebtedness is collected by or through an attorney after maturity, subject to subsection (b) of this Code section and to the following provisions:

(1) If such note or other evidence of indebtedness provides for attorney’s fees in some specific percent of the principal and interest owing thereon, such provision and obligation shall be valid and enforceable up to but not in excess of 15 percent of the principal and interest owing on said note or other evidence of indebtedness;

(2) If such note or other evidence of indebtedness provides for the payment of reasonable attorney’s fees without specifying any specific percent, such provision shall be construed to mean 15 percent of the first $500.00 of principal and interest owing on such note or other evidence of indebtedness and 10 percent of the amount of principal and interest owing thereon in excess of $500.00; and

(3) The holder of the note or other evidence of indebtedness or his or her attorney at law shall, after maturity of the obligation, notify in writing the maker, endorser, or party sought to be held on said obligation that the provisions relative to payment of attorney’s fees in addition to the principal and interest shall be enforced and that such maker, endorser, or party sought to be held on said obligation has ten days from the receipt of such notice to pay the principal and interest without the attorney’s fees. If the maker, endorser, or party sought to be held on any such obligation shall pay the principal and interest in full before the expiration of such time, then the obligation to pay the attorney’s fees shall be void and no court shall enforce the agreement. The refusal of a debtor to accept delivery of the notice specified in this paragraph shall be the equivalent of such notice.”

The case that is found in full below is Textile Rubber and Chemical Company, Inc. v. Thermo-Flex Technologies Company, Inc., decided by the Court of Appeals of Georgia in 2011 and codified at 308 Ga.App. 89.  It contains an enlightening summary of the best methods for implementation of this statute in seeking collection of attorney’s fees on an anticipatory breach of contract – principles that are applicable to many other forms of contract breach – as well as general rules for debt collection that it is good for any general practitioner to keep in mind.

Coppedge & Evans, Joseph B. Evans, Warren N. Coppedge, Jr., Dalton, for appellant.Edward Hine Jr., Rome, Daniel R. Hoyt, for appellees.BARNES, Presiding Judge.

This is the second appeal of this case, which arose out of a dispute between the parties over an agreement to sell certain carpet-making technology for $3 million. In the first appeal, we affirmed the trial court’s decision that the plaintiff, Thermo–Flex Technologies, Inc., was entitled to $500,000 in damages as a matter of law, based upon the defendant Textile Rubber and Chemical Company, Inc.’s failure to make an installment payment, but remanded the case for a jury to decide additional damage claims. Textile Rubber and Chemical Co. v. Thermo–Flex Technologies, 301 Ga.App. 491, 687 S.E.2d 919 (2009). On remand, Thermo–Flex moved for summary judgment against Textile on its claim for statutory attorney fees based on the $500,000 damages awarded. The trial court granted the motion. The third-party defendants, Larry Mullinax and Technology Works, Inc., also moved for summary judgment on the cross-claims brought against them by Textile, and the trial court likewise granted their motion. Textile now appeals these summary judgment rulings made by the trial court on remand. For the following reasons, we affirm the trial court’s grant of summary judgment to Thermo–Flex on its attorney fees claim and to the third-party defendants on Textile’s cross-claims for tortious interference with contract, breach of warranty, and indemnity. We reverse the trial court’s grant of summary judgment to the third-party defendants on Textile’s cross-claims for fraud, negligent misrepresentation, and breach of duty to principal.

When reviewing the grant … of a motion for summary judgment, this Court conducts a de novo review of the law and the evidence. To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Footnotes omitted.) Smith v. Gordon, 266 Ga.App. 814(1), 598 S.E.2d 92 (2004). See OCGA § 9–11–56(c).  So viewed, the record showed that at all times relevant to this dispute, Larry Mullinax was the president and owner of 50 percent of the outstanding shares of Thermo–Flex Technologies, Inc., which was in the business of developing a thermoplastic recyclable backing system for carpets. Mullinax also was the president, chief executive officer, chief financial officer, and owner of Technology Works, Inc., a consulting firm in the area of thermoplastic technology.

Due to his expertise in the area, Textile Rubber and Chemical Company, Inc. hired Mullinax to serve as its consultant in the application of thermoplastic technologies in the flooring industry. Mullinax had previously been an employee of Textile and had a longstanding relationship with its founder. Textile paid Mullinax $100,000 a year for his role as a consultant. Mullinax informed Textile that his other company, Thermo–Flex, had developed a thermoplastic recyclable backing system that was ready to go to market and proposed a partnership between the two companies. Mullinax repeatedly advised Textile that the technology developed by Thermo–Flex did not produce a significant amount of “volatile organic compounds” (“VOCs”), which would raise environmental concerns and would be an important issue to potential customers. Textile chose not to perform its own independent testing of Thermo–Flex’s technology for VOCs after Mullinax advised that such testing was unnecessary and would be “a waste of money.”

Textile and Mullinax ultimately concluded that it made more business sense for Textile to simply purchase the thermoplastic backing technology from Thermo–Flex rather than form a partnership. Consequently, on August 11, 2006, Thermo–Flex sold its technology to Textile in return for $3 million in installment payments (the “Agreement”). The Agreement specified that Textile would make three separate payments of $500,000 to Thermo–Flex on the closing date of the sale, on January 1, 2007, and on December 31, 2007, respectively. The Agreement provided that the remaining $1.5 million would be paid in quarterly installments based upon a formula relating to Textile’s future net income and net profits. In addition to these installment payments, Textile agreed that it would “pay to [Thermo–Flex] all costs and expenses, including reasonable attorney[ ] fees incurred by [Thermo–Flex] in enforcing any of the covenants and provisions of this Agreement and incurred in any action brought by [Thermo–Flex] against [Textile] on account of the provisions hereof.”

With respect to the quality of the technology purchased, the Agreement provided that Textile was buying the technology in an “as is” condition, that no warranties of any type (whether for merchantability or fitness for a particular purpose or use, express or implied, or otherwise) [were] being made by [Thermo–Flex], and that any and all such warranties [were] … expressly disclaimed to the fullest extent allowed by Georgia law. The bill of sale for the technology contained a similar disclaimer of all express or implied warranties.

Following execution of the Agreement, Textile paid the $500,000 due at closing and on January 1, 2007. In the summer of 2007, customers notified Textile that the technology produced problematic levels of VOCs. Textile launched its own investigation which confirmed the presence of considerable levels of VOCs. As a result, Textile informed Thermo–Flex that it would not be making the third $500,000 payment due on December 31, 2007, and that it planned to make certain modifications to its installment payments relating to future net profits.

Unwilling to accept Textile’s unilateral changes to the payment arrangements, Thermo–Flex sued Textile for anticipatory breach of contract and sought contractual damages of $2,000,000, plus accrued interest, court costs, and attorney fees. Textile counterclaimed for breach of contract on the ground that the technology was defective for containing problematic levels of VOCs. Textile also successfully moved to add Mullinax and Technology Works as third-party defendants and asserted cross-claims against them for tortious interference with contract, breach of warranty, fraud, negligent misrepresentation, breach of duty to principal, and indemnity.

The trial court thereafter granted partial summary judgment to Thermo–Flex, concluding that the uncontroverted evidence showed that Textile had committed an anticipatory breach of contract by unilaterally changing the payment arrangements. Regarding the measure of damages, the trial court ruled that Thermo–Flex was entitled to entry of judgment in the amount of $500,000 plus interest based upon Textile’s failure to make the December 31, 2007 installment payment. As to the $1.5 million in installment payments relating to Textile’s future net profits, the trial court ruled that Thermo–Flex was “ entitled to some or all of the $1.5 million if it [could] show with reasonable certainty the extent to which [Textile] could have used the technology profitably.” Additionally, the trial court granted summary judgment to Thermo–Flex on Textile’s breach of contract counterclaim, reasoning that any oral representations concerning VOCs would constitute inadmissible parol evidence and could not be used to vary the plain terms of the warranty disclaimers in the Agreement. The trial court reserved ruling on the issue of attorney fees.

Textile appealed to this Court, and we affirmed in part and vacated in part the trial court’s decision. See Textile Rubber & Chemical Co. v. Thermo–Flex Technologies, 301 Ga.App. 491,687 S.E.2d 919 (2009). We affirmed the trial court’s grant of summary judgment in favor of Thermo–Flex on its claim for anticipatory breach of contract and against Textile on its counterclaim for breach of contract. Id. at 494–495(1), 496–497(3), 687 S.E.2d 919. We also affirmed the trial court’s entry of judgment in the amount of $500,000 plus interest for Textile’s refusal to make the December 31, 2007 installment payment. Id. at 494–495(1), 687 S.E.2d 919. However, we vacated the trial court’s ruling as to the $1.5 million in installment payments relating to future net profits and held that Thermo–Flex was entitled to recover the present value of the $1.5 million after that value was determined by a jury using the formula set out in our opinion. Id. at 495–496(2), 687 S.E.2d 919.

Following remand, Textile paid to Thermo–Flex the $500,000 plus accrued interest in satisfaction of the judgment relating to the unpaid December 31, 2007 installment payment. Thermo–Flex then moved for summary judgment on its claim for attorney fees predicated on its recovery of those damages. Thermo–Flex argued that it was entitled to attorney fees pursuant to OCGA § 13–1–11 because it made a proper written demand for those fees and Textile failed to pay the amount demanded. Textile responded that Thermo–Flex could not recover attorney fees because its demand letter failed to comply with the statutory notice requirements. Concluding that Thermo–Flex had made a demand for attorney fees that substantially complied with OCGA § 13–1–11, the trial court granted summary judgment to Thermo–Flex and entered judgment in the amount of $55,417.65, representing the amount of fees owed by Textile.

Mullinax and Technology Works also moved for summary judgment, contending that there were no genuine issues of material fact as to Textile’s cross-claims for tortious interference with contract, breach of warranty, fraud, negligent misrepresentation, breach of duty to principal, and indemnity. Textile responded that there were several disputed issues of material fact and that Mullinax and Technology Works had no standing to invoke or enforce the warranty disclaimers in the Agreement since they were not parties to that contract. Concluding that all of Textile’s cross-claims failed as a matter of law, the trial court granted summary judgment in favor of Mullinax and Technology Works. This appeal followed in which Textile challenges the two summary judgment decisions by the trial court on remand.

1. Textile first claims that the trial court erred in ruling that Thermo–Flex’s demand letter complied with the notice requirements imposed by OCGA § 13–1–11 for the recovery of attorney fees. We disagree.

OCGA § 13–1–11 establishes limits and procedures regarding obligations to pay attorney fees “upon any note or other evidence of indebtedness” and such obligations “contained in security deeds and bills of sale to secure debt.” OCGA § 13–1–11(a), (b).1 The parties do not dispute that OCGA § 13–1–11 applies in this case. As a prerequisite to obtaining OCGA § 13–1–11 attorney fees, the party seeking the fees is required to issue a demand notice, which must

(1) be in writing, (2) to the party sought to be held on the obligation, (3) after maturity, (4) [state] that the provisions relative to payment of attorney fees in addition to principal and interest will be enforced, and (5) [state] that the party has 10 days from the receipt of such notice to pay the principal and interest without the attorney fees.Gen. Elec. Credit Corp. of Ga. v. Brooks, 242 Ga. 109, 119, 249 S.E.2d 596 (1978). See OCGA § 13–1–11(a)(3); Trust Assoc. v. Snead, 253 Ga.App. 475, 476(1), 559 S.E.2d 502 (2002). “Substantial compliance with the notice requirement of OCGA § 13–1–11 is all that is required to allow for the recovery of attorney fees.” Community Marketplace Properties v. SunTrust Bank, 303 Ga.App. 403, 405(1), 693 S.E.2d 602 (2010). See Gen. Elec. Credit Corp. of Ga., 242 Ga. at 118, 249 S.E.2d 596. “So long as a debtor is informed that he has 10 days from receipt of notice within which to pay principal and interest without incurring any liability for attorney fees [,] the legislative intent behind the enactment of [OCGA § 13–1–11] has been fulfilled.” (Emphasis omitted.) Gen. Elec. Credit Corp. of Ga., 242 Ga. at 118, 249 S.E.2d 596.

Here, Thermo–Flex relied upon a demand letter that its counsel sent to Textile’s counsel by e-mail and first class mail, return receipt requested, on January 9, 2009 (the “Demand Letter”). The Demand Letter quoted the attorney fees provision contained in the Agreement and stated that Thermo–Flex intended to enforce that provision in this case. The Demand Letter further provided: “Pursuant to OCGA § 13–1–11, notice is herewith given that Textile … may avoid the obligation to pay [Thermo–Flex’s] attorney [ ] fees by paying the open principal balance due under the Agreement of $2,000,000 within ten (10) days of your receipt of this letter.” The $2,000,000 represented the unpaid $500,000 installment payment due on December 31, 2007 plus the unpaid $1.5 million in quarterly installment payments relating to Textile’s future net profits. Textile did not make any payments to Thermo–Flex within ten days of receiving the Demand Letter; Textile instead waited and paid $500,000 plus interest to Thermo–Flex after this Court affirmed the entry of judgment in that amount on December 9, 2009. Thermo–Flex then moved for attorney fees in the amount of $55,417.65 for its recovery of the $500,000 plus interest.

Textile argues that the Demand Letter did not substantially comply with the notice requirements of OCGA § 13–1–11 because it demanded payment of the full amount of Thermo–Flex’s claims, $2 million, not the $500,000 as to which Thermo–Flex was awarded summary judgment and upon which judgment had already been entered. Specifically, Textile contends that the Demand Letter was deficient because it demanded payment of $2 million even though (a) only $500,000 of Textile’s payment obligations has matured, and (b) Thermo–Flex ultimately will recover an amount less than the full “face value” of the $1.5 million payment obligation relating to future net profits, since a jury will be instructed to determine the present value of that obligation.

(a) Contrary to Textile’s contention, its full payment obligations have matured. An anticipatory breach of contract accelerates the maturity of the indebtedness and entitles the creditor to demand the face value of the total unpaid debt. See Valley View Church of God in Christ v. King, 236 Ga. 337, 337–338, 223 S.E.2d 701 (1976). Furthermore, a demand notice is timely and proper under OCGA § 13–1–11 even if the specific amount due under the contract will “not [be] fixed until the court’s judgment.” Kauka Farms v. Scott, 256 Ga. 642, 646(5), 352 S.E.2d 373 (1987). Thus, upon Textile’s anticipatory breach of the Agreement, Thermo–Flex was entitled to issue a demand for the face value of the total remaining unpaid debt, $2 million, prior to the entry of judgment on the indebtedness.

(b) We likewise reject Textile’s argument that the Demand Letter was deficient because Thermo–Flex ultimately will recover an amount less than the face value of the $1.5 million payment obligation. A creditor substantially complies with the notice requirements of OCGA § 13–1–11 by setting forth the face value of the debt as reflected in the plain terms of the contract. See Carlos v. Murphy Warehouse Co., 166 Ga.App. 406, 408(2), 304 S.E.2d 439 (1983); Shier v. Price, 152 Ga.App. 593, 595(2), 263 S.E.2d 466 (1979). Moreover, a demand notice is sufficient under the statute, even if the face value reflected in the notice is different from the amount that a jury later determines to be due. See Kroger Co. v. U.S. Foodservice of Atlanta, 270 Ga.App. 525, 530–531(3), 607 S.E.2d 177 (2004); Carlos, 166 Ga.App. at 408(2), 304 S.E.2d 439; Williams v. First Bank & Trust Co., 154 Ga.App. 879, 883–884(5), 269 S.E.2d 923 (1980). See also Kauka Farms, 256 Ga. at 646(5), 352 S.E.2d 373 (“The notice required by OCGA § 13–1–11 could have been sent even though there was uncertainty as to the amount due.”). Accordingly, the Demand Letter substantially complied with OCGA § 13–1–11 by setting forth the face value of the unpaid debt obligation, $2 million, even if Thermo–Flex ultimately may recover somewhat less than that amount after a jury calculates its present value.

For these reasons, there was no genuine issue of material fact as to whether the Demand Letter issued by Thermo–Flex was defective under OCGA § 13–1–11. The trial court, therefore, correctly granted summary judgment to Thermo–Flex on its statutory attorney fees claim.

2. Textile next argues that the trial court erred in granting summary judgment to Mullinax and Technology Works on its cross-claims for breach of warranty, fraud, negligent misrepresentation, breach of duty to principal, and indemnity. 2 We affirm the trial court’s grant of summary judgment on Textile’s cross-claims for breach of warranty and indemnity, but we conclude that there were genuine issues of material fact precluding summary judgment on the cross-claims for fraud, negligent misrepresentation, and breach of duty to principal.

(a) Textile maintains that the trial court erred in ruling that its cross-claim for breach of warranty against the third-party defendants could not succeed in light of the dismissal of its counterclaim for breach of warranty against Thermo–Flex. But, in its brief filed in the trial court, Textile conceded that summary judgment would be proper on this cross-claim if we affirmed the trial court’s grant of summary judgment to Thermo–Flex on Textile’s breach of warranty counterclaim. And we did affirm the trial court’s grant of summary judgment on Textile’s counterclaim in our previous decision, see Textile Rubber & Chemical Co., 301 Ga.App. at 496–497(3),687 S.E.2d 919, as the trial court noted in its order granting summary judgment to the third-party defendants on the breach of contract cross-claim. Textile cannot now undo its concession on appeal. “To consider the case on a completely different basis from that presented below would be contrary to the line of cases holding, ‘[A party] must stand or fall upon the position taken in the trial court.’ ” (Citation omitted.) Heard v. City of Villa Rica, 306 Ga.App. 291, 293(1), 701 S.E.2d 915 (2010). See also Craig v. Bailey Bros. Realty, 304 Ga.App. 794, 798(2), n. 3, 697 S.E.2d 888 (2010) (“We will not consider new arguments in opposition to a motion for summary judgment raised for the first time on appeal.”).

(b) Textile also maintains that the trial court erred in ruling that its fraud and negligent misrepresentation cross-claims failed as a matter of law because it could not prove reasonable reliance. Both fraud and negligent misrepresentation require the injured party to prove reasonable reliance upon the alleged misrepresentations of the tortfeasor. See Hardaway & Co. v. Parsons, Brinckerhoff, Quade & Douglas, Inc., 267 Ga. 424, 426(1), 479 S.E.2d 727 (1997); Alexander v. A. Atlanta Autosave, 272 Ga.App. 73, 75(1), 611 S.E.2d 754 (2005). The trial court held that Textile could not establish that it reasonably relied upon Mullinax’s alleged misrepresentations concerning the level of VOCs in Thermo–Flex’s thermoplastic backing technology, given that the Agreement contained disclaimer of warranty language.

The trial court’s ruling was erroneous because it incorrectly assumed that Mullinax and Technology Works were entitled to invoke and enforce the disclaimer provision of the Agreement even though they were not parties to that contract. The disclaimer provision in the Agreement referred only to warranties by the “Seller,” defined in the Agreement as Thermo–Flex. Nor did the disclaimer in the bill of sale refer to representations or warranties by non-contracting parties. Moreover, the mere fact that someone would benefit from the performance of a contract is insufficient to give that person standing to enforce the contract. Marvel Enterprises v. World Wrestling Federation Entertainment, 271 Ga.App. 607, 614(5), 610 S.E.2d 583 (2005). Rather, there must be a showing that the person was a third-party beneficiary. Id. Here, neither Mullinax nor Technology Works claimed to be a third-party beneficiary of the Agreement. It follows that Mullinax and Technology Works had no standing to invoke or enforce the protections afforded by the Agreement in order to preclude the fraud and negligent misrepresentation cross-claims brought against them.

It is true that under certain circumstances, an agent of a contracting party may be entitled to rely upon a disclaimer or merger clause contained in the contract to preclude claims against the individual agent for his or her alleged representations. See Tampa Bay Finance v. Nordeen, 272 Ga.App. 529, 534(2), 612 S.E.2d 856 (2005); Yee v. Barnwell, 193 Ga.App. 820, 822–823(1), 389 S.E.2d 392 (1989). In the present case, however, Mullinax was not simply acting as an agent for Thermo–Flex in his dealings with Textile. Rather, Mullinax also had a pre-existing relationship with Textile under which he was being paid $100,000 a year to serve as a consultant and expert to Textile on the very technology forming the basis for the Agreement. 3 Under these unique circumstances, a jury would be entitled to find that Textile reasonably relied on the representations made by Mullinax concerning the level of VOCs in Thermo–Flex’s technology, thereby giving Textile the false assurance that it could safely enter into an “as is” purchase agreement with Thermo–Flex. Accordingly, there were genuine issues of material fact on the issue of reasonable reliance that must be resolved by a jury rather than by the courts.4 See Potts v. UAP–GA AG CHEM, 256 Ga.App. 153, 156(1), 567 S.E.2d 316 (2002) (“Whether reliance is reasonable is normally a question for the jury[.]”). The trial court thus erred in granting summary judgment to Mullinax and Technology Works on the fraud and negligence misrepresentation cross-claims.

(c) Textile further maintains that the trial court erred in ruling that its cross-claim for breach of duty to principal failed as a matter of law because it could not prove proximate cause. An essential element of a tort claim for breach of duty is that the alleged negligence be a proximate cause of the plaintiff’s injury. See Hoffman v. Insurance Co. of North America, 241 Ga. 328, 329–330, 245 S.E.2d 287 (1978). The trial court held that proximate cause could not be established because Textile’s act of signing the Agreement with the disclaimer provision cut off any causal connection between Mullinax’s alleged misrepresentations and any damages that Textile suffered.

The trial court erred in concluding that a jury could not find that Mullinax’s alleged misrepresentations proximately caused Textile’s damages.

It is well settled that there can be no proximate cause where there has intervened between the act of the defendant and the injury to the plaintiff, an independent, intervening, act or omission of someone other than the defendant, which was not foreseeable by defendant, was not triggered by defendant’s act, and which was sufficient of itself to cause the injury.

(Citation omitted.) Pruette v. Phoebe Putney Memorial Hosp., 295 Ga.App. 335, 341(1)(c), 671 S.E.2d 844 (2008). Hence, an intervening act does not break the causal connection between the defendant’s conduct and the plaintiff’s injury, if the intervening act was triggered by the defendant’s conduct or could have reasonably been anticipated or foreseen by the defendant. SeeWalker v. Giles, 276 Ga.App. 632, 645(2), 624 S.E.2d 191 (2005).        In the instant action, a jury could find that Textile’s act of entering into the Agreement containing the disclaimer provision was triggered by the misrepresentations of its paid consultant and expert, Mullinax. Likewise, a jury could find that Mullinax reasonably could have anticipated or foreseen that his misrepresentations concerning the level of VOCs while serving as a paid consultant and expert would lead Textile to enter into the Agreement. Proximate cause is generally an issue for the jury, see Walker, 276 Ga.App. at 643(2), 624 S.E.2d 191, and there is no reason to deviate from this rule under the specific facts of this case. The trial court therefore erred in granting summary judgment to Mullinax and Technology Works on the cross-claim for breach of duty to principal.

(d) Finally, Textile maintains that the trial court erred in ruling that its indemnity cross-claim failed as a matter of law because it did not meet the requirements of such a claim under the common law.5

The duty to indemnify may arise by operation of law, independently of contract. If a person is compelled to pay damages because of negligence imputed to him as the result of a tort committed by another, he may maintain an action for indemnity against the person whose wrong has thus been imputed to him. Here, no wrong has been imputed to [Textile], nor does [Textile] have any vicarious liability. Rather, [Textile’s] duty to pay stemmed from its contractual obligation [to Thermo–Flex]. Under these circumstances, common law indemnity principles do not apply.(Punctuation and footnotes omitted.) Nguyen v. Lumbermens Mut. Cas. Co., 261 Ga.App. 553, 557(2), 583 S.E.2d 220 (2003). It follows that the trial court did not err in granting summary judgment to Mullinax and Technology Works on the cross-claim for common law indemnity. See id.;North Georgia Elec. Membership Corp. v. Thomason & Holsomback Constr. Co., 157 Ga.App. 719, 720(1), 278 S.E.2d 433 (1981).

Judgment affirmed in part and reversed in part.

——–

Notes:

1. Where, as here, the underlying contract “provides for the payment of reasonable attorney[ ] fees without specifying any specific percent,” OCGA § 13–1–11 provides that the party seeking fees may recover “15 percent of the first $500.00 of principal and interest owing on such note or other evidence of indebtedness and 10 percent of the amount of principal and interest owing thereon in excess of $500.00.” OCGA § 13–1–11(a)(2). Textile does not challenge the trial court’s method of calculating the attorney fees or the specific amount of fees awarded; rather, Textile’s challenge is limited to whether the preconditions for such an award were met.

2. Textile does not challenge the trial court’s grant of summary judgment on its cross-claim for tortious interference with contract or present any argument with respect to that claim in its appellate brief. Any challenge to that ruling by the trial court thus has been abandoned. See Court of Appeals Rule 25(a)(3) and (c)(2); Steed v. Fed. Nat. Mtg. Corp., 301 Ga.App. 801, 804, n. 2, 689 S.E.2d 843 (2009).

3. In Yee, the defendant served as an agent of both the buyer and seller, but he was not paid to act as the agent of the buyer. See Yee, 193 Ga.App. at 822–823(1), 389 S.E.2d 392. Furthermore, the alleged fraud in Yee was that the defendant failed to disclose his ownership or interest in the seller company to the buyer, but the record showed that the buyer learned that the defendant held such an interest several months before executing the contract yet inquired no further. Id. We held that under those circumstances, “there [was] no evidence to justify reliance on a fiduciary relationship” between the defendant and buyer. Id. at 822(1), 389 S.E.2d 392. Here, in contrast, there was evidence in the record that Mullinax was paid a significant sum to serve as a consultant and expert to Textile, and Textile did not learn of the problematic levels of VOCs until after executing the Agreement because of Mullinax’s advice and recommendations as its consultant.

4. Mullinax and Technology Works also contend that by entering into the Agreement containing the disclaimer provision, Textile was estopped from and waived any claim that it relied upon or was injured by the representations of Mullinax. Again, however, Mullinax and Technology Works’ contention is predicated upon the false assumption that they were entitled to rely upon the protections afforded by the Agreement, even though they were not parties to the contract, third-party beneficiaries, or merely agents of a contracting party.

5. Textile does not contend that it had an express or implied indemnification contract with Mullinax and Technology Works.

Mar 11 15

Future Conduct is Indictated by Past Behavior

by merlin

Showing an economic change in a party, or a lifestyle change, may not be enough in child custody disputes, because of the long history of that party with respect to child custody matters.  This rule is exemplified by the following case, In the Interest of C.J., 279 Ga.App. 213 (Ga. App. 2006), which states very well that “[t]he decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.”

      Rita F. Cooper, Springs, for appellant.

        Thurbert E. Baker, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Charissa A. Ruel, Assistant Attorney General, T. Michael Finn, Atlanta, for appellee.

        ANDREWS, Presiding Judge.

        The mother of C.J. appeals from the juvenile court’s order terminating her parental rights. She contends there was not sufficient clear and convincing evidence to terminate her rights and also contends that the juvenile court erred in considering certain expert testimony. After reviewing the record, we conclude there was no error and affirm.

        “On appeal from a termination order, this Court views the evidence in the light most favorable to the appellee and determines whether any rational trier of fact could have found by clear and convincing evidence that the biological parent’s rights to custody have been lost.” In the Interest of F. C., 248 Ga.App. 675, 549 S.E.2d 125 (2001).

        So viewed, the evidence was that the Department of Family and Children Services (Department) removed C.J. from her mother’s care on October 12, 2001. The child was two years old at the time and both parents were homeless and without jobs.1

        The Department caseworker who handled C.J.’s case from December 2002, until October 2004, testified at the termination hearing that she had little contact with the mother during this period. The mother acknowledged that from October 2002, until May 2003, she neither saw nor visited C.J. The mother moved to Tennessee and told the caseworker that she did not have a car and therefore could not visit the child. The caseworker testified that there was a reunification plan in effect at the time under which the mother was to obtain stable housing and employment, submit to drug screens, visit the child, and keep the Department informed of any change of address. The Department attempted to do a home evaluation at the Tennessee address given by the mother, but was unable to do so. When the caseworker arrived at the address, the mother was not there and the home appeared to be abandoned.

        At some point, the mother moved to Alabama and gave the Department two different addresses there, but again the Department was unable to do an evaluation because the mother could not be found at either address. The caseworker stated that in August 2003, an economic support worker in Alabama notified her that the mother was under investigation for food stamp fraud, having claimed that C.J. and another child who was also not in her custody, were living with her. The caseworker who took over C.J.’s case in October 2004, testified that her first contact with the mother was in March 2005. The mother gave several reasons why communications from the Department may not have reached her and claimed that she tried to call people at the Department, but was unable to talk to anyone. The mother admitted that she had the name of her attorney and also had the address and phone number of the juvenile court. She also admitted to being in jail for over a month during August and September 2004.

        When asked, the mother first stated that she had three children, but after being reminded, acknowledged that she actually had five, none of whom was in her custody. The mother submitted proof that she had taken negative drug screens, and that she completed parenting classes, a psychological evaluation and First Placement—Best Placement. As for visiting with the child, there was evidence that the mother had visitation twice a month at the parenting center immediately after C.J. was removed from her care, but missed several visits.

        The mother testified that she had been employed since June 2004, and had been living in the same place since June 2004. Her pay stubs showed that she earned 3,200 in 2004. The mother admitted that she never paid any support for C.J., but said she had never been ordered to do so. She said that she did give her sister 250 for clothes for C.J. at one time. The mother also acknowledged that she never petitioned to have C.J. returned to her, even though she had remarried and claimed to have a home and a job.

        As of August 2003, C.J. had been in four foster care homes. She was returned by three of the foster parents for disrupting the home. C.J. had also disrupted her classroom at school and had run away from her teachers. A child psychologist who evaluated C.J. determined that these problems stemmed from the child’s not being able to form attachments and the disruption and instability of her home life. C.J.’s behavior became noticeably worse after visits with her mother.

        However, C.J.’s school counselor testified that the child had improved noticeably since being placed with her current foster parents. She appeared to be a happy child and was doing well in school. The counselor said that C.J. calls her foster parent “mother” and the biological mother her “other mother.” C.J. calls her foster father “daddy,” and the foster parents intend to adopt her. The counselor also stated that C.J. told her she wanted to be adopted and live with her foster parents “forever.” The counselor testified that she thought it would be very harmful for C.J. to be removed from her foster parents.

        The guardian ad litem testified at the hearing and recommended termination. He noted that the mother had abandoned the child physically, emotionally, and financially. The child had not been with the mother since she was two years old and was now finally in a happy and secure home for the first time in her five years.

        After hearing the evidence, the juvenile court granted the Department’s petition for termination of the mother’s parental rights. This appeal followed.

       1. In several enumerations of error, the mother argues that there was not sufficient clear and convincing evidence to support the termination.

        A juvenile court’s termination of parental rights is a two-step process: The first step requires a finding of parental misconduct or inability, which requires clear and convincing evidence that: (1) the child is deprived; (2) lack of proper parental care or control is the cause of the deprivation; (3) such cause of deprivation is likely to continue; and (4) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. If these four factors are satisfied, the court must then determine whether termination of parental rights is in the child’s best interest, considering physical, mental, emotional, and moral condition and needs, including the need for a secure and stable home. OCGA § 15-11-94(a), (b)(4)(A)(i)-(iv).

        The mother has never disputed that C.J. is a deprived child, and the facts set out above support this finding. Moreover, because the mother has never appealed any of the juvenile court’s orders finding that C.J. was deprived and extending custody, she is bound by the juvenile court’s finding of deprivation. In the Interest of B.S., 265 Ga.App. 795, 797, 595 S.E.2d 607 (2004).

        The next factor to be considered is whether lack of proper parental care or control is the cause of the deprivation. On this issue the court may consider certain factors which “render the parent unable to provide adequately for the physical, mental, emotional, or moral condition and needs of the child.” OCGA § 15-11-94(b)(4)(B)(i). The court may also consider any physical, mental, or emotional neglect of the child or evidence of past physical, mental, or emotional neglect of another child by the parent. OCGA § 15-11-94(b)(4)(B)(v). Further,

        In addition to the considerations in subparagraph (B) of this paragraph, where the child is not in the custody of the parent who is the subject of the proceedings, in determining whether the child is without proper parental care and control, the court shall consider, without being limited to, whether the parent without justifiable cause has failed significantly for a period of one year or longer prior to the filing of the petition for termination of parental rights: (i) To develop and maintain a parental bond with the child in a meaningful, supportive manner; (ii) To provide for the care and support of the child as required by law or judicial decree; and (iii) To comply with a court ordered plan designed to reunite the child with the parent or parents.

         OCGA § 15-11-94(b)(4)(C).

        Here, there was evidence that although the mother had completed parenting classes, a psychological evaluation, and drug screens, the mother had failed to provide the Department with information as to her whereabouts so that a home evaluation could be performed; had failed to achieve financial stability; and had physically, financially, and emotionally neglected the child and her other children. Moreover, as the juvenile court held, the mother has not developed or maintained a parental bond with the child and has provided no support for the child. Accordingly, there was clear and convincing evidence that lack of proper parental care is the cause of the deprivation.

        The third determination is whether the deprivation is likely to continue. In making this determination, the juvenile court may consider evidence of present parental misconduct or inability, as well as evidence of past inability. “Such an inference is appropriate, since the juvenile court is not required to reunite the children with the mother in order to obtain current evidence of deprivation or neglect.” In the Interest of T.L., ___ Ga.App. ___, ___, 630 S.E.2d 154 (2006). Here, although some improvement in the mother’s situation had occurred and she had fulfilled some of the requirements of the reunification plan, “[j]udging the credibility of her good intentions was a task for the juvenile court. The decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact. Further, this Court has held that the trial court must determine whether a parent’s conduct warrants hope of rehabilitation, not an appellate court.” In the Interest of A.G., 253 Ga.App. 88, 90-91, 558 S.E.2d 62 (2001). Because a parent’s conduct over the years is a better predictor of future conduct than a few months of partial stability, the juvenile court was authorized to infer from the evidence of past conduct that the improvements in the mother’s situation were not sufficient to justify maintaining the child in limbo in hopes that the mother could, at some point in the indefinite future, provide an adequate home for C.J. See id. at 91, 558 S.E.2d 62.

        There was also clear and convincing evidence that the continued deprivation would cause serious harm to the child. The same evidence discussed above was sufficient for the court to find that continued deprivation would cause serious mental and emotional harm to C.J. In the Interest of A.G., supra. “[A] parent’s failure to take the steps necessary to reunite with the child, and the child’s need for a stable home are factors which the court should consider in finding that the child would suffer serious harm from continued deprivation.” In the Interest of T.L., supra. Here, the evidence was that C.J. had not lived with her mother since the age of two and had visited with the mother only sporadically since that time. C.J. had bonded with her foster parents, called them “mother” and “daddy,” had overcome past problems due to her anxiety over her lack of a stable and secure home, and the foster parents wished to adopt her. Accordingly, this was sufficient for the juvenile court to find that continued deprivation would cause harm to the child. See In the Interest of J.W.M., 273 Ga.App. 20, 23, 614 S.E.2d 163 (2005).

        Finally, the evidence was also sufficient to support the juvenile court’s determination under OCGA § 15-11-94(a) that, there being clear and convincing evidence of parental misconduct or inability, termination of appellant’s parental rights was in the best interest of the child, considering the child’s physical, mental, emotional, and moral needs, and the child’s need for a secure and stable home. The same factors which showed the existence of parental misconduct or inability also supported the finding that termination of appellant’s parental rights was in the child’s best interest. In the Interest of J.W.M., supra at 24, 614 S.E.2d 163. Here, the court considered that C.J. was happy in her foster home, was adjusting well at school, and the foster parents wished to adopt her. This evidence was sufficient.

        2. The mother also argues that the juvenile court erred in qualifying a witness as an expert when counsel laid no foundation and did not tender her as an expert. The witness in question was Jean Hogan, C.J.’s elementary school counselor. The record shows that Hogan was a licensed professional counselor. Further, as the Department points out, the mother never objected to Hogan’s qualification as an expert witness. The mother did make a hearsay objection to Hogan’s testimony, but has not raised that issue on appeal. Accordingly, this enumeration presents nothing for our review. See In the Interest of K. W., 262 Ga.App. 744, 748, 586 S.E.2d 423 (2003) (Where parent failed to raise issue in trial court, we will not address it for the first time on appeal.).

        Judgment affirmed.

        BARNES and BERNES, JJ., concur.

—————

Notes:

1. The father is not a party to this appeal.

—————

Mar 8 15

Repost (12/6/11 on Habeas Corpus actions)

by merlin

This is directly relevant to a matter I am researching at the moment.

______________________________________________________

The legal grounds for attacking a criminal conviction following an unappealed plea of guilt are limited, and the absolute last resort that a person has available to them is to attack the plea by way of a Petition for the Issuance of a Writ of Habeas Corpus.  This is not the method of choice for attacking a conviction, and is only available when other resorts (the obvious one being appeal of the conviction) cannot be used – such as the expiration of the time to appeal.

The writ is a fundamental right, and the rules that govern its use have been approximately consistent in Georgia jurisprudence for some time.  “A discharge under a writ of habeas corpus, after a plea of guilty by one accused of crime, cannot be granted except in cases where the judgment is absolutely void, for the reason that the function of the writ in criminal cases is not to test the truth of any fact essential to the establishment of guilt, but only to discharge one convicted of crime where the judgment is wholly void” (emphasis supplied).  Grammer v. Balkcom, 214 Ga. 691, 692 (Ga. Sup. Ct. 1959).  According to that case – which is still the prevailing interpretation of the law over half a century later – the writ can’t be used as a substitute for the withdrawal of a guilty plea (as when a person changes their mind and wants a trial, instead).  It isn’t a substitute for an appeal, as where the terms of the sentence are illegal or otherwise improper, or there is a legal defect that requires the judgment be overturned.  It is only there as a way of correcting unlawful entry.  In the case for which I am researching this issue, the question is the competency of the lawyer to represent the client.

The actual test for this particular issue – whether the attorney defending the person was sufficiently competent to represent them under the law or not – is drawn from the 11th Circuit (federal) case of McCoy v. Newsome, 953 F.2d 1252 (11 Cir. 1992).  In looking at potential grounds for the issuance of the writ, the case talked about witnesses who the Defendant claimed provided him with an alibi, but who he says his counsel did not contact.  His counsel said that he did contact the people named, but that the evidence that they proposed to testify to did not support the alibi the Defendant chose to present.  Similar to the matter in question, the decision to call the person nonetheless involved the basic rule that the factfinder is the ultimate arbiter of the credibility of the witness, and the attorney can make a conscious choice regarding calling this person as a witness.  The standard the case set to evaluate this decision is whether or not it was “clearly erroneous”.

That case sets a standard for evaluation of the representation itself, in terms of any allegations of ineffective assistance of counsel, as a question of the “totality of the circumstances”.  One individual aspect might be subjectively poor, but if the overall effect was to the person’s benefit or credit, the conviction will be upheld.

Mar 2 15

Civil Discovery is Applicable to Petitions for Removal from the Sex Offender Registry

by merlin

A notice, by the way – the information I post, unless it specifies otherwise, is applicable only to Georgia.

Civil Discovery methods – including Interrogatories, Requests to Admit, and Notices to Produce – should technically be available in Petitions for Removal from the Sex Offender Registry.  It shouldn’t matter if the Discovery issues are being handled on the State’s end by criminal practitioners – they are still going to have to comply with the ordinary civil Discovery tools, much like a pro se Defendant who doesn’t do such things professionally.

In the case law, inclusion on the Sex Offender Registry is considered a “collateral consequence” of pleading guilty to or being found guilty of an act of a indecent nature with a child.  “Child” refers to anyone fifteen and under in Georgia, according to Section 39-1-1 of the Official Code of Georgia.  For your reference, that section is below:

“(a) The age of legal majority in this state is 18 years; until that age all persons are minors.

(b) Nothing in this Code section shall be construed automatically to render an individual a resident of this state when that individual is in the state for the purpose of attending school. In the case of such individual, his residence will be considered to be the state in which his parents reside if under the laws of that state the individual would still be considered a minor and he is incapable of proving his emancipation.”

Because registry is a “collateral consequence” whose continued applicability is being questioned, the action is, therefore, civil in nature.  According to the Law Dictionary, an online resource found at http://thelawdictionary.org/civil-action/, a “civil action” is “A personal action which is instituted to compel payment, or the doing some other thing which is purely civil.”

As much as I loathe using Wikipedia as a source, that engine describes “collateral consquences” as “…the additional civil state penalties, mandated by statute, that attach to criminal convictions. They are not part of the direct consequences of criminal conviction, such as incarceration, fines, and/or probation. They are the further civil actions by the state that are triggered as a consequence of the conviction.” (emphasis supplied).  Because inclusion on the Registry is a civil consequence of a criminal conviction, it necessarily follows that a petition for removal from the Registry is a civil remedy.  As such, it would be governed by Section 9-11-81.

Section 9-11-81 of the Official Code of Georgia is authority for the idea that the Civil Practice Act provisions (such as Discovery, and attorney’s fees) apply to all civil actions unless specifically excluded. Inclusion on the sex offender registry is a collateral consequence of a qualifying sex- or kidnapping-based conviction, and it is NOT a punitive measure, but instead a “public safety” measure.  That section is below:

“This chapter shall apply to all special statutory proceedings except to the extent that specific rules of practice and procedure in conflict herewith are expressly prescribed by law; but, in any event, the provisions of this chapter governing the sufficiency of pleadings, defenses, amendments, counterclaims, cross-claims, third-party practice, joinder of parties and causes, making parties, discovery and depositions, interpleader, intervention, evidence, motions, summary judgment, relief from judgments, and the effect of judgments shall apply to all such proceedings.” (emphasis supplied).

There is no resource that says that the Civil Practice Act – in its entirety – is NOT applicable to petitions for removal from the sex offender registry, and there is specific authority discussing the proper method to be used for statutory interpretation when dealing with sex offense cases.

Specifically, Clark v. State, 328 Ga.App. 268, 761 S.E.2d 826, was a 2014 Court of Appeals case that found a Defendant’s sentence to be incorrect, since it chose to give him 20 years’ incarceration instead of the split sentence of incarceration and probation mandated by the statute. It talks about the proper sentencing mechanisms in the Sex Offender Act.  However, more importantly for our purposes, it discusses statutory interpretation and surplusage, which tools (when applied to this particular situation, yield the result I have just described).  The case is below:

Kirvin Clark pro se.

Robert Nicholas Peterkin, Peter J. Skandalakis, for Appellee.

ELLINGTON, Presiding Judge.
In March 2012, Kirvin Clark pled guilty to one count of child molestation in the Superior Court of Meriwether County, and the trial court sentenced him to twenty years to serve in prison. Six months later, Clark filed a motion to correct an illegal and/or void sentence, contending, inter alia, that his sentence violated OCGA §§ 16–6–4(b)(1) and 17–10–6.2(b). 1 The trial court denied the motion based upon its conclusion that the sentence was not illegal or void because it fell within the sentence allowable under OCGA § 16–6–4(b)(1). Clark appeals, and, for the reasons explained below, we vacate his sentence and remand this case to the trial court for resentencing.

1. Clark contends that the trial court erred in concluding that his sentence was not illegal or void under OCGA §§ 16–6–4(b)(1) and 17–10–6.2(b).2 We agree.

Under OCGA § 16–6–4(b)(1), “a person convicted of a first offense of child molestation shall be punished by imprisonment for not less than five nor more than 20 years and shall be subject to the sentencing and punishment provisions of Code Sections 17–10–6.2 and 17–10–7” except in circumstances not applicable to this case. OCGA § 17–10–6.2(b) provides, in relevant part, as follows:

Except as provided in subsection (c) of this Code section, and notwithstanding any other provisions of law to the contrary, any person convicted of a sexual offense sentenced to a split sentence which shall include the minimum term of imprisonment specified in the Code section applicable to the offense. No portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court and such sentence shall include, in addition to the mandatory imprisonment, an additional probated sentence of at least one year.

(Emphasis supplied.)

We find that the statute’s express requirement that the trial court issue a “split sentence” that includes the minimum term of imprisonment and at least one year of probation is plain and unambiguous. As a result, the trial court was not authorized to construe the statute so as to allow the 20–year sentence imposed herein. See Inagawa v. Fayette County, 291 Ga. 715, 718(2), 732 S.E.2d 421 (2012) (When a statutory provision is clear and susceptible of only one meaning, “judicial construction is both unnecessary and unauthorized.”) (citations and punctuation omitted); Evans v. Employees’ Retirement System of Ga., 264 Ga. 729, 731(1), 450 S.E.2d 195 (1994) (“[T]he use of plain and unequivocal language in a legislative enactment obviates any necessity for judicial construction.”) (citation and punctuation omitted).

Further, even if judicial construction of this statute had been authorized, it is axiomatic that courts must strictly interpret penal statutes against the State and, more importantly, that courts are prohibited from interpreting a statute in a manner that renders some of the language superfluous, ineffectual, or meaningless. State v. Hammonds, 325 Ga.App. 815, 818, 755 S.E.2d 214 (2014); see Jackson v. State, 299 Ga.App. 356, 357, 360(4), 683 S.E.2d 60 (2009) (Courts must “give each part of the statute meaning and avoid constructions that make some language mere surplusage. All parts of a statute should be harmonized and given sensible and intelligent effect, because it is not presumed that the legislature intended to enact meaningless language.”) (citation and punctuation omitted). Thus, an interpretation that would allow a court to sentence a defendant to twenty years of imprisonment without probation for a first child molestation conviction would necessarily—and improperly—render the statute’s requirement of a “split sentence” meaningless.

Accordingly, because OCGA § 17–10–6.2(b) expressly provides that a sentence for a first conviction for child molestation must be a “split sentence” that includes at least the mandatory minimum of five years of imprisonment and at least one year of probation, we must conclude that Clark’s twenty-year sentence of imprisonment is void. It follows that the trial court erred in denying his motion to correct a void sentence. This case is remanded to the trial court for resentencing.

2. Clark contends that OCGA § 17–10–6.2(b) required the trial court to sentence him to the minimum period of incarceration, i.e., five years under OCGA § 16–6–4(b)(1), followed by at least one year of probation. However, this Court has resolved this issue adversely to Clark in Bowen v. State, 307 Ga.App. 204, 205(2), 704 S.E.2d 436 (2010), in which we ruled that OCGA § 17–10–6.2(b) “mandates a split sentence for sexual offenders that includes at least the minimum term of imprisonment.” (Emphasis in original.) Thus, the statute authorizes the trial court to issue a split sentence that includes at least five years of imprisonment and at least one year of probation, for a total of no more than twenty years.

3. Clark also contends that the trial court erred in not considering whether he was eligible for a deviation from the minimum term of imprisonment, pursuant to subsection (c)(1) of OCGA § 17–10–6.2.8

The State charged Clark with committing child molestation by “touching and rubbing [the victim’s] butt[.]” During the guilty plea hearing, the only relevant fact proffered by the State to support this specific charge was that the victim reported that the defendant “touched her on the butt” while they were at a Meriwether County “drug house.” Although Clark had driven the victim and two of her siblings from Union City to Meriwether County that evening, Clark did not commit the charged offense until later, while they were at the drug house. Therefore, the offense itself did not involve any transportation of the victim or any of the other factors listed in OCGA § 17–10–6.2(c)(1) that would prohibit the trial court from sentencing Clark under that subsection. See generally Hedden v. State, 288 Ga. 871, 873–876, 708 S.E.2d 287 (2011).

Further, the hearing transcript shows that the trial court appeared to believe that it had no discretion to sentence Clark to anything less than 20 years of imprisonment. Neither the defense counsel nor the prosecutor informed the trial court that it had the option of using its discretion to sentence Clark under OCGA § 17–10–6.2(c), and the court did not make any findings regarding, or even refer to, that provision during the guilty plea hearing or in its order denying Clark’s motion to vacate his sentence.

Thus, based upon the record before us, we conclude that the trial court failed to exercise its discretion to consider whether to deviate from the mandatory minimum sentence, pursuant to OCGA § 17–10–6.2(c)(1), when sentencing Clark. See Tindell v. State, 314 Ga.App. 91, 91–92, 722 S.E.2d 921 (2012) (The defendant entered a negotiated guilty plea with a recommended sentence of fifteen years, five to serve, and the trial court sentenced him accordingly, while concluding that it had no discretion under OCGA § 17–10–6.2(c)(1) to sentence him to less than the mandatory minimum sentence for the offense. This Court found that the trial court had erroneously failed to exercise its discretion under that statute, and it vacated the sentence and remanded the case for resentencing.); see also Holland v. State, 310 Ga.App. 623, 629–630(5), 714 S.E.2d 126 (2011). Consequently, this error provides an independent basis for vacating Clark’s sentence and remanding this case for resentencing. Tindell v. State, 314 Ga.App. at 92, 722 S.E.2d 921. Although, upon remand, the trial court may decide not to sentence Clark to less than the mandatory minimum sentence under OCGA § 17–10–6.2(c)(1), “let the exercise of the trial court’s discretion in the imposition of [its] sentence be cast upon the record.” Bradshaw v. State, 237 Ga.App. 627, 630(2), 516 S.E.2d 333 (1999) (This Court vacated the defendant’s sentence and remanded the case after finding that the trial court had erroneously concluded that it had no discretion in sentencing the defendant.). See also Hedden v. State, 288 Ga. at 873–876, 708 S.E.2d 287 (The Supreme Court vacated the defendant’s sentence and remanded the case after finding that the trial court had erroneously concluded that it had no discretion, under OCGA § 17–10–6.2(c), to deviate from the mandatory minimum sentencing provisions set forth in OCGA § 17–10–6.2(b).); Haynes v. State, 317 Ga.App. 400, 402(3), 731 S.E.2d 83 (2012) (accord); Hatcher v. State, 314 Ga.App. 836, 839(2), 726 S.E.2d 117 (2012) (accord).

4. Given our rulings in the preceding divisions, Clark’s remaining alleged error is moot.

Sentence vacated, and case remanded for resentencing.

PHIPPS, C.J., concurs.
McMILLIAN, J., concurs in Divisions 1, 2, and 4, and in the judgment.

——–

Notes:

1. “[W]here a sentence is void, the court may resentence the defendant at any time. A sentence is void if the court imposes punishment that the law does not allow.” (Citation and punctuation omitted.) Marshall v. State, 294 Ga.App. 282, 282–283, 668 S.E.2d 892 (2008).

2. “[T]he interpretation of a statute is a question of law, which is reviewed de novo on appeal. Because the trial court’s ruling on a legal question is not due any deference, we apply the plain legal error standard of review.” (Citation and punctuation omitted.) State v. Hammonds, 325 Ga.App. 815, 755 S.E.2d 214 (2014).

3.OCGA § 17–10–7¢, which governs the punishment of repeat offenders, does not apply in this case.

4. See Division 3, infra, regarding OCGA § 17–10–6.2(c).

5. Under OCGA § 17–10–6.2(a)(5), the term “sexual offense” includes a conviction for child molestation under OCGA § 16–6–4(a).

6. Although OCGA § 17–10–6.2(b) does not expressly define the term “split sentence,” its meaning is clear when read in context with the entire provision. See Anderson v. Little & Davenport Funeral Home, 242 Ga. 751, 752(1), 251 S.E.2d 250 (1978) (“It is a general principle of statutory law that a statute must be definite and certain in its provisions to be valid, and when it is so vague and indefinite that men of common intelligence must necessarily guess at its meaning and differ as to its application, it violates the first essential of due process of law. [However, even if] a statute does not undertake to define each of the words contained therein, this will not automatically render the statute vague, indefinite or uncertain in meaning since[ ][t]he ordinary signification shall be applied to all words, except words of art, or words connected with a particular trade or subject matter[.]”) (citations and punctuation omitted); see also State v. Hammonds, 325 Ga.App. at 817, 755 S.E.2d 214 (“[I]t is an elementary rule of statutory construction that, absent clear evidence to the contrary, words should be assigned their ordinary, logical, and common meaning.”) (citation and punctuation omitted).

7. See Division 2, infra.

8. That subsection provides, in relevant part, as follows:

In the court’s discretion, the court may deviate from the mandatory minimum sentence as set forth in subsection (b) of this Code section, or any portion thereof, when the prosecuting attorney and the defendant have agreed to a sentence that is below such mandatory minimum or provided that:

(A) The defendant has no prior conviction of an offense prohibited by Chapter 6 of Title 16 or Part 2 of Article 3 of Chapter 12 of Title 16, nor a prior conviction for any offense under federal law or the laws of another state or territory of the United States which consists of the same or similar elements of [those] offenses[;]

(B) The defendant did not use a deadly weapon or any object, device, or instrument which when used offensively against a person would be likely to or actually did result in serious bodily injury during the commission of the offense;

(C) The court has not found evidence of a relevant similar transaction;

(D) The victim did not suffer any intentional physical harm during the commission of the offense;

(E) The offense did not involve the transportation of the victim; and

(F) The victim was not physically restrained during the commission of the offense.

OCGA § 17–10–6.2(c)(1). See also OCGA § 17–10–6.2(c)(2) (“If the court deviates in sentencing pursuant to [OCGA § 17–10–6.2(c)(1)], the judge shall issue a written order setting forth the judge’s reasons. Any such order shall be appealable by the defendant pursuant to Code Section 5–6–34, or by the State of Georgia pursuant to Code Section 5–7–1, unless the sentence imposed was pursuant to an agreement by the prosecuting attorney and the defendant.”).

Feb 28 15

ABA February 2015 Continuing Legal Education Notes

by merlin

This webinar covered Miranda statements, which was especially useful:

 

Mirandized Statements: Successfully Navigating the Legal and Psychological Issues

ABA CLE Webcast Notes – February 2015

Amy Meyerson (Attorney), Eric Drogon (Attorney and Harvard Psychiatrist), Carol Spaderna (Aberstwyth University law and Psychologist)

What’s the big deal?

  • To paraphrase Chris Rock – police can have plenty of evidence, but they want the confession.
  • It reduces “reasonable doubt”

Named for Ernesto Miranda (in 1963, confessed)

There are 10 Key Myths and Misconceptions:

  1. They are uniform warnings (if info entirely comes from TV and media ,then this is prevalent – Miranda only provided for “clear and unequivocal words OR THEIR EQUIVALENT” to get the point across)
  2. They are brief and easily-understood (there is a range in length and difficulty of these warnings)
  3. Miranda warnings for juveniles are simpler than regular advisements (NOT TRUE – 300 different versions, including explaining the role of the judge, etc.; for children, average required is a 9th grade reading level, versus an 8th grade reading level for adult warnings). There is a great checklist in the materials for attorneys to use when they represent juveniles and a Miranda warning becomes an issue (as to what impact the warning might have in the case, and whether an evaluation is needed)(The idea is to get valid waivers)
  4. Spanish language Miranda warnings are NOT accurate and complete translations!!!!!
  5. “Practice makes perfect” with Miranda warnings (idea that a person who has been repeatedly arrested understands the warnings by that point)
  • In fact, the OPPOSITE is true – folks with 50+ past arrests tended to have no better comprehension than those with very few arrests
  1. Defendants have an accurate appraisal of their Miranda knowledge (lack of knowledge about their own lack of knowledge!!!!!!).
  2. Validity of Miranda is a moot point because of other incriminating evidence (50% of convictions hinge on a confession, though)! Again – CONFESSION
  3. Police deception is impermissible just prior to Miranda

CONTRARY – Police are allowed to lie.

  1. Defendants with psychiatric histories provide invalid Miranda This is like thinking a person who is voluntarily intoxicated can’t be found responsible for a crime.
  2. Waiver decisions are based on solid decision-making (contrarily, Defendants tend to abandon that solid reasoning when they are being questioned).

  • Folks don’t even remember everything – only 73% of people polled could recall being advised about their right to silence!!!!
  • About 20% actually believe an unsigned waiver is protection!
  • 55% of juvenile defendants think they will have to pay for their defense no matter what.
  • MOST of them (WRONGLY) believe that if they have started talking, they have permanently waived their right to silence!!!

 

Berghuis (2010):      Defendant must invoke his right to remain silent AND he loses that right if he answers questions (but, as noted above, can AFFIRMATIVELY REINVOKE).

 

Commonwealth v. Jackson, 432 Mass. 82 (Massachusetts, 2000):   State has to affirmatively prove waiver was voluntary

What do experts assess?

Mental health experts:

  • Neurological examination
  • Brain health imaging
  • Neuropsychological testing (ex. Weschler Memory Scale, etc.)
  • Communication/Academic Scales Screening (ability to understand the written word; at what level are they functioning; how does the individual actually work with language?)
  • Various intelligence tests (ex. Stanford-Binet, etc.)
  • There ARE personality/intelligence tests for juveniles!

There IS a test that answers level of comprehension of Miranda rights.

  • Comprehension of Miranda rights – tested by IAU (grandparent of other tests); CMR (Comprehension of Miranda Rights test); CMR-R – Recognition component; CMV – Comprehension of Miranda Vocabulary; test to determine detainee understanding of rights in INTERROGRATION
  • The MRCI is a thorough test, appears (takes into account current innovations since the IAU)
  • SAMA (Standardized Assessment of Miranda Abilities) – includes multiple different kinds of tests, such as reasoning skills, etc.

Experts

Remember:         Expert needs to review the ACTUAL material;

Remember:         The completeness of the expert’s review is CRITICAL (Did you review this source?  How about that source?)

Ethical codes of psychiatry are implicated by incompetence.

Got to make sure the expert actually had direct, hands-on experience with the person themselves and with the administration of the tests themselves (manner they should be administered, etc.).

  • Did they check only ONE aspect of Miranda warning, or did they ask about EACH right it informs about?
  • Must be BOTH testing AND interview
  • Make sure expert SCORED the tests given accurately (other side did the same)

In Miranda, they expressly allowed variation of language, but that equivalents are fine.

Stating “No” in response to the idea that you don’t understand the Miranda rights, it doesn’t necessarily bring the inquiry to a halt; all it really does is add a level of inquiry to the trial.

In some jurisdictions, State insists on sending Defendant to State hospital before defense is permitted to have their experts give tests.

For it to be best:

To get at the truth, must have a warning that is:

  1. Delivered both in writing and orally;
  2. Delivered in most basic language that conveys components;
  3. Stands up under inquiry (admissibility is the goal); and
  4. Has a follow-up to ensure person understands it.

Expert crosses a line that isn’t helpful when they start opining on whether the police “did it right”.  This exceeds their mandate, and they aren’t necessarily qualified.

 

 

 

 

 

Feb 27 15

ABA January 2015 Continuing Education Webinar Notes

by merlin

These notes are in addition to the program materials themselves.

The Wild World of Cannabis

ABA CLE Webcast Notes – Originally broadcast in January 2015

 

 

John Minan (Associate Professor of Law at University of San Diego)

Federal Law (Classification as Schedule I drug) preempts State standards where inconsistent, but State doesn’t enforce if it doesn’t want to.

  • 2009, US Attorneys told not to prosecute State persons in compliance with medical marijuana
  • 2013 memo – States with sufficient mechanisms won’t be interfered with, but must avoid spillover into other States
  • No med marijuana in the future as of that memo

Preemption:  Only happens if there is a CLEAR CONFLICT.  Nebraska and Utah suit asks Supreme Court to use preemption against Colorado for non-medical

Scott Rhodes – Jennings Strauss (on Professionalism in Cannabis Cases)

Dilemma – can lawyers ethically advise pot clients under ABA Model Rules

State response:

            Lawyers advise client fully (State law OK but conflict with federal law); general trend follows this (AZ) approach

North Dakota – it’s actually per se unethical for attorneys to even use cannabis medically.  Colorado approach – exactly opposite (no connection between legal representation and personal use, per se).  In 6/13, extended from medical to recreational use in CO (under consideration in Washington and Nevada).

Hilary Bricken (Harris Moure) – Representing Marijuana Business

Recreational versus Medical Marijuana – Laws, regulations, permissible business entities (eligibility AND business structure) differ between the two

CA versus WA – CA must be a non-profit cooperative or not allowed

 

Be aware of idea of PROSECUTORIAL DISCRETION (affects federal memos)

 

Raids versus “Landlord Letters” – latter is a “softer touch”, gives 30 days to move out

Federal Conflict

  • Banking
  • insurance availability
  • bankruptcy
  • taxes

Have to make sure that fee agreement expressly states the conflict with federal law and expressly addresses idea that you can only advise on how to comply with State law – can only represent them SO MUCH and SO FAR.

Sean O’Connor (University of Washington School of Law) – Food and Drug Law

3 Major Cannabis Products:

  • Food
  • Drug
  • Dietary Supplements

These laws came from:

  • “Filled Milk” scandals (early 20th Century)
  • Patent Medicine cases (snake oil medicines)
  • Thalidomide cases

3 Major Statutes:

  • Food, Drug, and Cosmetics Act
  • Public Health Act
  • Dietary Supplement Health and Education Act

Questions of PURITY AND POTENCY, and also questions of SAFETY AND EFFICACY (latter includes idea that something else achieves same effect)

  • Have to go through approval process for Foods, also for Drugs, as well as obtaining “NDA” (“New Drug Approval”) – many years and lots of $
  • FDA has been issuing warning letters, but FEW

Cannabis as a DIETARY SUPPLEMENT:

  • Requires only PURITY and POTENCY
  • Relies on CUSTOMER input, rather than established medical claims
  • St. John’s Wort

Tsan Abramson (Cobalt Law) – Trademark/Trade Dress Issues

Terms can be:

  • FANCIFUL/ARBITRARY
  • SUGGESTIVE
  • DESCRIPTIVE
  • GENERIC

  • Products containing THC are still federally illegal, BUT
  • Can seek federal mark protection for products and services that SUPPORT the brand.

DON’T:

  • Seek registration for non-cannabis product and try to use protection for cannabis products of same name
  • Will lose the State protection (ex. Colorado)

Henry Wykowski (Wykowski and Associates) – Tax Issues

  • IRS § 280E: Expressly PUNITIVELY disallows ordinary and necessary business expenses for sale of cannabis (passed in 1982 – War on Drugs)

Champ decision:      CAN deduct for cost of goods sold (cannabis industry)

What if they sell non-cannabis goods (i.e. t-shirts)? They can deduct that; need to develop a formula allocating the two

  • Have a defensible 280E formula (assume they WILL be audited)
  • If audited – ensure they IMMEDIATELY get help on it!!!!!!
    • Don’t let client do it themselves, use an attorney (for privilege; no such privilege for accountants)
    • Advise client – UNDER NO CIRCUMSTANCES respond to letter themselves

Audit:

            Looking for SUBSTANTIATION OF EXPENSES (so keep records)

  • Look at gross sales
  • Look at cost of purchases
  • Look at how 280E allocation done

Julie Anderson Hill (University of Alabama School of Law) – Banks and Federalism

  • Banks often don’t even service the ATMs used in cannabis stores
  • Blame the federal controlled substances act (Anti-money laundering laws)
  • FDIC – “reputation risk”

Questions remain – does the UCC apply (Arts. 2 and 9, especially), and what about BANKRUPTCY?

Dwight Merriam (Robinson+Cole) – Real Estate/Land Use Issues

Even if Cannabis were downgraded to Schedule II regulation (like morphine or codeine, the real estate issues would remain).

  • federal and State crime free/drug free zones, school zones, etc.
  • “Drug Free/Crime Free addendum to leases, prohibiting State-legal use of marijuana since it is federally illegal
  • Landlords often include provision in lease prohibiting growing or use EXPLICITLY
  • Insurance requirements? Electricity requirements?  Mold?  Trespassing?
  • No duty to allow tenant under fair housing act, ADA, etc.

See Los Angeles regulations for most comprehensive

Katharine Liao (DLA Piper) – Employment Law

What about medically-prescribed marijuana use?  20 States allow medical, 4 States allow recreation (now Alaska and DC, also).

  • However, 19 States have express statutes saying that employers don’t have to accommodate use/possession during working hours
  • 4 States have express laws allowing employees to be disciplined, and another 4 have case law

Positive test alone:

  • Not enough in DELAWARE, ARIZONA, MINNESOTA
  • Enough (Zero Tolerance) in CALIFORNIA, MONTANA, OREGON, WASHINGTON
  • Colorado – Coats v. Dish Network, LLC – decision still pending (no evidence he ever used while working; quadriplegic; medically-prescribed
  • New Mexico – carrier must reimburse for med. marijuana costs
  • Michigan – employer can terminate but employee gets unemployment

Is there a disability?

  • Generally, employers must provide “reasonable accommodation”
  • Generally, underlying medical problem being treated by med marijuana will require accommodation

Employers need to continually monitor and update employee drug policies.

  • Courts have consistently been very protective of employers terminating over WORKPLACE SAFETY ISSUES
Feb 18 15

Link to SCOTUS Search

by merlin

After an ice storm trapped us at home with no power or Internet, this site is back up and I may continue my work and my research.

This is a link to a new service (still in Beta mode) that allows a user to search oral arguments before the United States Supreme Court for the past decade+:

http://www.scotussearch.com/

Feb 15 15

Deviating From Georgia Presumptive Child Support (In General)

by merlin

When determining child support due (and in every Georgia divorce, custody, or child-oriented case, even NO child support due must be affirmatively recorded), there have to be certain findings upholding the amount required.  It may be that no reliable evidence of income can be shown, as when a person is unemployed, or maybe the parties’ dispute centers around the evidence that one party has of the other’s ability to earn far more money than they have in the past, and proof exists that they can and should be earning more.  Whatever the situation, the Court has to make factual findings to uphold its decision, as required by Section 19-6-15(E) of the Official Code of Georgia.  That section reads as follows, requiring the Court to:

“(E) Include written findings of fact as to whether one or more of the deviations allowed under this Code section are applicable, and if one or more such deviations are applicable as determined by the court or the jury, the written findings of fact shall further set forth:

(i) The reasons the court or the jury deviated from the presumptive amount of child support;

(ii) The amount of child support that would have been required under this Code section if the presumptive amount of child support had not been rebutted; and

(iii) A finding that states how the court’s or the jury’s application of the child support guidelines would be unjust or inappropriate considering the relative ability of each parent to provide support and how the best interest of the child who is subject to the child support determination is served by deviation from the presumptive amount of child support;”

___________________________________________________

Sometimes, the situation has been “worked out” by the Court with the parties, or between attorneys for one or both sides, and the arrangement may genuinely be believed by the parties to be in their best interests, or by the Court to be in the parties’ best interests.  IT DOESN’T MATTER.  The findings of fact referred to above still need to be made; what if the case should be appealed?

If the case is appealed and these findings are not present in the record or the pleadings, then the carefully-crafted decision will fall apart like a stack of cards.  This was exactly the situation in the 2013 Supreme Court of Georgia case, Parker v. Parker, 293 Ga. 300, 745 S.E.2d 645:

William J. Camp, Westmoreland Patterson Moseley & Hinson, Warner Robins, for appellants.

T. Rabb Wilkerson III, Warner Robins, for appellee.

BENHAM, Justice.

        This Court granted the application for discretionary review in this case arising out of an action filed by JoBeth Parker, Appellant, a resident of Georgia, against her then-husband, James Timothy Parker, Appellee, a nonresident, to establish child support pursuant to the Uniform Interstate Family Support Act (UIFSA), OCGA § 19–11–100, et. seq.1 After conducting an evidentiary hearing, the trial court entered a final order of custody and child support. Appellant raises several issues relating to the child support award.

         1. The initial question for review is whether this is an alimony case over which this Court has appellate jurisdiction pursuant to Georgia Constitution of 1983, Art. VI, Sec. IV, Para. III(6). The parties to this appeal were married at the time of the proceedings below. Divorce proceedings were pending in both Alaska and Florida but Appellant alleged that neither of those states had jurisdiction to resolve child custody and child support issues given the residency of the parties and the two children of the marriage. 2 Accordingly, Appellant filed the petition in Georgia and the trial court found it had jurisdiction over this matter.

        In Spurlock v. Dept. of Human Resources, 286 Ga. 512, 513(1), 690 S.E.2d 378 (2010), a case involving a Department of Human Resources review of a child support order under OCGA § 19–11–12, this Court discussed the relationship between alimony and child support, noting that “an award of child support always constitutes [293 Ga. 301]alimony if it is made in a divorce decree proceeding, but it may or may not represent alimony outside the divorce context.” In Spurlock, this Court held that “we have jurisdiction over a case involving an original claim for child support which arose in either a divorce or alimony proceeding [as well as] actions for modification of alimony … for support of … a child, so long as the original award arose from a divorce or alimony proceeding.” Id. at 513, 690 S.E.2d 378. Thus, the Court concluded we have jurisdiction over proceedings for modification of a child support award made in a prior divorce or alimony action regardless of the code section under which the modification is pursued. By comparison, in O’Quinn v. O’Quinn, 217 Ga. 431, 122 S.E.2d 925 (1961), this Court found it did not have jurisdiction over a case that involved an original petition for child support brought under what is now the UIFSA 3 because we concluded it was not a divorce or alimony case that would bring the matter within the jurisdiction of this Court. The petitioner in O’Quinn, however, sought the establishment of child support after the parties were already divorced, not the modification of a child support order entered in a divorce or alimony proceeding. Without making that distinction, this Court later cited O’Quinn for the proposition that child support actions brought under what is now the UIFSA “are normally within the jurisdiction of the Court of Appeals.” Brown v. Georgia Dept. of Human Resources, 263 Ga. 53, 54, 428 S.E.2d 81 (1993) (assuming jurisdiction over a case in which the Georgia Department of Human Resources filed a petition on behalf of a parent seeking modification of a previously entered child support award as well as payment of arrearages, in order to address confusion in the law regarding collection of child support arrearages).

         The case now before the Court involves an original petition for child support that is not made within a divorce proceeding. The parties were, however, at the time the petition was filed, married and not divorced. Consequently, this case is distinguishable from Kennedy v. Kennedy, 309 Ga.App. 590, 711 S.E.2d 103 (2011), in which the Court of Appeals, and not this Court, had jurisdiction over an original petition for award of child custody and child support in a case involving parents who had already obtained a final divorce decree in [293 Ga. 302]Alabama that did not address the issues of custody and support because their child no longer lived in that state. “Child support is a form of alimony.” Dean v. Dean, 289 Ga. 664, 665, n. 2, 715 S.E.2d 72 (2011). Thus, the factual circumstances of this case provide an example of an award of child support that constitutes alimony even though it is pursued outside the divorce context, as referenced in Spurlock, supra. Accordingly, this Court has jurisdiction over this appeal because it is an alimony case.

        2. Appellant asserts the trial court erred in including in its child support calculations certain nonspecific deviations from the statutory presumptive child support amount that would otherwise apply in this case and in failing to consider the effect of boarding school living expenses upon the allocation of child support between the parties for the older child who was enrolled at boarding school. The record reflects both parties were career commissioned officers in the United States Air Force whose military duties often required them to be geographically separated. At the time Appellant filed this proceeding in 2011, two different divorce proceedings were pending in two other states. Also at the time this proceeding was filed, the parties had enrolled their older, then 16–year–old, daughter in a boarding school in New Jersey and the younger, then seven-year-old, daughter was living with Appellant in Georgia and enrolled in a private day school. Appellee had retired from the military and was a resident of Alaska. The trial court awarded joint legal custody of both children, awarded primary physical custody of the older child to Appellee, in accordance with that child’s stated preference, and awarded primary physical custody of the younger child to Appellant pursuant to a finding that such an arrangement was in the best interest of the child.

        As required by OCGA § 19–6–15( l ) for split parenting arrangements, the trial court prepared a child support worksheet for each child but it appears to be undisputed that the worksheets were not provided to the parties or their attorneys until the day following the hearing on this matter and that the court invited each party to review the worksheets in advance of entry of the final award. Each worksheet reflects that Appellant’s income is 42.22% of the parties’ combined income and that Appellee’s income is 57.78% of the combined income. Tuition, room, and board for the older child’s boarding school was shown on the worksheet to be approximately $44,000 per year (although documentary evidence presented at the hearing reflects that, after credit for a tuition grant, the charges totaled $41,770) and, at the hearing, the judge announced Appellant would be required to pay half, but in any case, no less than $22,000 per year, “toward tuition and living expenses” but no other child support for the older child under the child support guidelines. The judge also announced at the hearing that Appellee would not be required to pay any tuition for the younger child, which was shown to be $5,400 (although evidence was presented showing the actual tuition was $4,200 after application of a tuition deduction) and Appellee’s zero dollar responsibility for the extraordinary educational expenses of the younger child is reflected on that child’s child support worksheet. Both worksheets provide nonspecific deviations by which the trial court apparently intended to “zero out” the remaining child support obligations of the parties such that Appellant would pay Appellee no additional child support with respect to the older child in his custody and Appellee would pay Appellant no child support with respect to the younger child in her custody. The final order, however, states that each party shall share equal financial responsibility for the private school tuition of each child with Appellee to pay no less than $22,000 for the older child’s tuition and Appellee to pay half of the younger child’s tuition. Appellant acknowledges she agreed to pay half of the older child’s boarding school tuition but she sought “guideline child support” for the younger child, including that child’s private school expenses. Before the final order was entered, Appellant submitted alternative worksheets for the court’s consideration and filed a motion for reconsideration of the ruling announced at the conclusion of the hearing. She argued that if the award were entered pursuant to the worksheets the court prepared and submitted to the parties for review after the hearing, the award would place a significantly heavier burden upon Appellant in her obligations to support both children, would provide a windfall to the Appellee, and would deny the younger child of the support that should be paid by Appellee. The motion was denied and the court entered the final order.

        In her first enumeration of error, Appellant asserts the trial court abused its discretion by granting a $1,503.05 nonspecific deviation in favor of Appellee with respect to his child support obligation to the younger child, thus bringing his support obligation to zero, when that deviation does not serve the best interest of that child. The Final Order of Custody and Child Support provides that neither party shall owe child support to the other and incorporates by reference the child support worksheet for each child. OCGA § 19–6–15 provides a process for calculating child support which, pursuant to subsection (m), requires the necessary information used in that calculation to be recorded on the child support worksheet. Deviations from the presumptive amount of child support, as provided by OCGA § 19–6–15(i), are to be set out in Schedule E of the worksheet. OCGA § 19–6–15(b)(8). If the factfinder deviates from the presumptive amount of child support, certain specific findings of fact must be set forth in the child support order, including the reasons for the deviation, the amount of child support that would have been required if no deviation had been applied, how the application of the presumptive amount of child support would be unjust or inappropriate considering the relative ability of each parent to provide support, and how the best interest of the child who is the subject of the child support determination is served by a deviation from the presumptive amount. See OCGA § 19–6–15(c)(2)(E) and (i)(1)(B). In justifying the special deviation applied to the younger child in this case, the judge responded to special interrogatories on Line 14 of Schedule E of the child support worksheet as follows:

        (B) Would the presumptive amount be unjust or inappropriate? Explain. [Answer:] Yes; [Appellee non-custodial parent] is paying for expenses of older child which are in addition to the half of her tuition.

        (C) Would deviation serve the best interests of the children for whom support is being determined? Explain. [Answer:] Yes; will result in funds being available for travel and other expenses for both children.

        (D) Would deviation seriously impair the ability of the CUSTODIAL parent or NON–PARENT Custodian to maintain minimally adequate housing, food and clothing for the children being supported by the order and to provide other basic necessities? Explain. [Answer:] No; both parents have sufficient funds to provide for basic necessities.

In this case, the child support worksheet was incorporated into the final order and thus the order reflects the statutorily required findings to support the deviation. Compare Walls v. Walls, 291 Ga. 757(6), 732 S.E.2d 407 (2012) (reversing and remanding for redetermination of child support where the order recited that the reasons for deviations were set forth in Schedule E of the child support worksheet but the spaces for those findings were left blank). Appellant, however, asserts the nonspecific deviation is erroneous as a matter of law in several respects.

         This Court has held that qualitative determinations regarding deviation from the presumptive amount of child support “are committed to the discretion of the court or jury. Accordingly, we review any findings based on disputed facts or witness credibility under the clearly erroneous standard, and we review the decision to deviate, or not to deviate, from the presumptive amount of child support under the abuse of discretion standard.” [293 Ga. 305]Black v. Black, 292 Ga. 691, 697(4)(a), 740 S.E.2d 613(2013) (citations and punctuation omitted). Among the disputes in Black was the court’s award of a deviation for visitation-related travel expenses to the non-custodial parent, which is enumerated as one of the permissible “Specific Deviations” in OCGA § 19–6–15(i)(2). This Court found that the trial court made sufficient findings that the deviation would leave the non-custodial parent with funds to cover interstate travel expenses for visitation with the children involved in the child support order, that the findings did not appear to be clearly erroneous, and thus the deviation could not be considered an abuse of discretion. Id.

        In this case, the court noted at the hearing the substantial visitation-related travel expenses for each child between Alaska and Georgia and the order requires each parent to bear that expense for the child not in that parent’s custody. Nevertheless, the child support worksheet for the younger child does not provide a specific deviation for travel expenses as permitted by OCGA § 19–6–15(b)(8)(F) and (i)(2)(F).4 Instead, one of the findings to justify the nonspecific deviation that effectively eliminated Appellee’s child support obligations to the younger child was that the deviation served the best interest of the “children for whom support is being determined” because it would “result in funds being available for travel and other expenses for both children.” Another of the findings to justify the nonspecific deviation in favor of Appellee was that the presumptive amount would be unjust or inappropriate because Appellee “is paying for expenses of older child … in addition to … half of her tuition.”

         Pursuant to OCGA § 19–6–165(i)(3), nonspecific deviations are those that “may be appropriate for reasons in addition to those established under this subsection when the court or the jury finds it is in the best interest of the child.” Relying upon this language, Appellant asserts that use of a nonspecific deviation is appropriate only when no specific deviation authorized by OCGA § 19–6–15(i)(2) reasonably applies. Pursuant to OCGA § 19–6–15(c)(1), the presumptive amount of child support provided by the Code section “may be increased or decreased according to the best interest of the child for whom support is being considered….” Relying upon this language, Appellant asserts the statute does not permit the granting of a deviation on the ground that it benefits and serves the best interest of a child other than the one who is the subject of the child support worksheet, even if that child is the sibling of the one entitled to support. Although separate worksheets are required for each child in [293 Ga. 306]a split parenting situation, the statute also requires the court to determine “other child support responsibilities for each parent.” See OCGA § 19–6–15( l )(5). Thus, we find no abuse of discretion in the trial court’s consideration of Appellee’s child support obligations to the older child in the child support award for the younger child. By noting Appellee’s obligation to pay expenses of the older child, including half of that child’s tuition, the trial court was obviously taking into consideration Appellee’s other child support obligations in determining what would be unjust or inappropriate for him to be required to pay in the way of support to the younger child. Although it appears to be the better practice not to include within nonspecific deviations factors that are set forth in the statutory list of specific deviations, we are not inclined to impose a hard-and-fast rule that factors such as significant visitation-related travel expenses cannot be considered as reasons for nonspecific deviations. This is particularly true where, as here, the child custody order involved a split parenting arrangement and a virtually identical justification for a nonspecific deviation was afforded Appellant, as the non-custodial parent of the older child. Likewise, we do not deem it to be an abuse of discretion for the trial court, in a split parenting arrangement, to offer reasons relating to child support obligations to a sibling in its findings of fact supporting nonspecific deviations.

         3. Appellant asserts the child support worksheets for both children contained erroneous facts, that the nonspecific deviations were thus erroneous, and that the worksheets, in any event, did not support the final order. The record supports this assertion of error. For example, the child support worksheets prepared by the court reflect, as noted above, overstatement of the private school tuition costs for each child.5 Both worksheets reflect yearly child care costs in the amount of $1,600 incurred by Appellant when no evidence was presented that Appellant incurred any child care costs for the older child and her domestic relations financial affidavit reflected total yearly child care costs in the amount of $1,480, presumably for the younger child who lived with her. Appellee’s financial affidavit reflected child care costs for non-school periods incurred by him, presumably primarily for the older child who lived with him when not in boarding school, in the total yearly amount of $3,000 but neither of the child support worksheets prepared by the court reflect any child care expenses were attributed to Appellee. The worksheets overstate the dental insurance premiums paid by the mother for each child because the total premium paid was entered on each child’s worksheet instead of one-half of the premium being attributable to each child. Finally, although the final order requires each party to pay half of each child’s private school tuition at the schools where they are currently enrolled (or, for Appellant, a minimum of $22,000 annually), the child support worksheet for the younger child reflects the entire amount of extraordinary educational expense is paid by Appellant and nothing is paid by Appellee. In sum, it appears that inaccurate factual data was plugged into the child support worksheets for the purpose of arriving at the pre-determined result the trial judge announced at the hearing—to “zero out” any child support obligations of the parties to each other.

         It is apparent from the hearing transcript that the trial court in this case attempted to accommodate the parties’ already established practice of devoting a significantly greater portion of the parents’ combined resources to pay for the education of the older child while also providing the younger child with private school education. The court went too far, however, in arriving at an expressed intent to award a zero dollar child support obligation and then fashioning the numbers to achieve that result. The guidelines set forth in OCGA § 19–6–15 provide a detailed scheme for determining the amount of child support to be awarded by the court and compliance with the statute’s terms is mandatory. See Stowell v. Huguenard, 288 Ga. 628, 706 S.E.2d 419 (2011). The intent of the guidelines is to have each parent contribute his or her pro rata share of child support unless deviations, as provided by law, are “supported by the required findings of fact and application of the best interest of the child standard.” OCGA § 19–6–15(b)(8). Here, it appears the trial court’s actions were comparable to making an award of child support outside the parameters of the child support worksheet in order to achieve a specific result, a practice that has been deemed reversible error. See Turner v. Turner, 285 Ga. 866, 684 S.E.2d 596 (2009)(reversing and remanding where, after calculating the amount of child support due from each parent, the order included a separate and special pro rata apportionment for the costs of extracurricular activities instead of including those expenses in the child support worksheet calculations); Johnson v. Ware, 313 Ga.App. 774, 723 S.E.2d 18 (2012) (reversing in part and remanding where the order included an award of tuition outside the overall calculation of child support). While the court in this case made the required findings to support the nonspecific deviations that were granted, they were seemingly result oriented and based on incorrect facts.

         Even though qualitative determinations of whether special circumstances exist to support deviations from the presumptive amount of child support are committed to the discretion of the court or jury (see Hamlin v. Ramey, 291 Ga.App. 222, 224–225(1), 661 S.E.2d 593 (2008)), quantitative calculations regarding the amount of the deviation require the child support worksheet to be populated with accurate facts and figures in order to determine the amount of the deviation. Once that amount is determined, the finder of fact must make findings and provide the reasons why the deviation is appropriate and in the best interest of the child. A deviation requires evidence that rebuts the presumptive amount of child support. See OCGA § 19–6–15(a)(10). As noted above, with respect to evidentiary issues, this court applies a clearly erroneous standard of review. Because the figures used in this case to “back out” the numbers to arrive at the pre-determined zero dollar child support obligation are unsupported by the evidence, we must reverse and remand the child support award. Upon remand, once factually accurate data is supplied to the child support worksheets to quantitatively support specific or nonspecific deviations, then the court, in its discretion, may make the required findings of fact, including how the best interest of the child who is the subject of the child support determination is served by the deviation, as required by OCGA § 9–6–15(c)(2)(E) and (i)(1) (B).

        In a separate enumeration of error Appellant asserts the court erred in failing to take into consideration the effect of the tuition discounts in its grant of deviations for extraordinary educational expenses, as required by OCGA § 19–6–15(i)(2)(J)(i)(I), and also erred in its order that Appellant pay half, but no less than $22,000, of these tuition expenses for the older child. Remand of the case for correction of factual inaccuracies in the child support worksheets serves to address this enumeration of error.

         4. Appellant asserts the trial court erred in failing to consider what she refers to as the “windfall” benefit to Appellee by requiring Appellant to pay half of the total costs of the older child’s education expenses, including boarding expenses, thus relieving Appellee of a portion of the cost of that child’s support. The order requires Appellant to pay no less than $22,000 annually for the older child’s private school tuition. It also requires Appellee to pay an amount equal to half of the younger child’s private day school tuition. Otherwise, the order states that “[n]either party shall pay child support to the other.” Nevertheless, the transcript of the hearing reflects the court acknowledged and intended the $22,000 payment to include living expenses. Private school or college boarding expenses include costs, such as food and lodging, which are by definition part of general child support. See Taylor v. Taylor, 228 Ga. 173(3), 184 S.E.2d 471 (1971) (holding it was error for the court to award board as part of the higher education expenses to be paid in addition to monthly support payments as this would necessarily include an amount for food and lodging and thus result in double payment of support); see also Marshall v. Marshall, 247 Ga. 598(3), 277 S.E.2d 662 (1981) (in a contempt proceeding, trial court did not err in interpreting an ambiguity in the child support decree so as not to require both child support and boarding expenses); Jenkins v. Jenkins, 233 Ga. 902(3), 214 S.E.2d 368 (1975) (child support award did not amount to a double payment of child support when the decree specifically stated college expenses were to be paid “in addition to” the payment for general support). Further, the evidence shows the parties agreed to pay half of each child’s private school tuition and no distinction was made between pure tuition costs and boarding costs. Also, the findings set forth in the child support worksheets demonstrate that the trial court recognized the older child’s boarding expenses were a part of and in addition to her total yearly living expenses.

        One of the justifications and findings in support of granting the nonspecific deviation in favor of Appellee for the younger child was the finding that the presumptive amount (which would result in Appellee paying over $400 monthly in child support to Appellant) would be unjust or inappropriate because “[Appellee non-custodial parent] is paying for expenses of older child which are in addition to the half of her tuition.” The corresponding finding in support of granting a nonspecific deviation in favor of Appellant for the older child was the finding that the presumptive amount would be unjust or inappropriate because “[Appellant non-custodial parent] is paying tuition for younger child.” Of course, Appellant is also paying expenses in addition to tuition for the younger child, since the final order eliminated Appellee’s child support obligations to that child except for half of tuition (even though that amount was not reflected in the child support worksheet), but that factor was not noted in the findings. In addition, though not noted on the child support worksheet, Appellant is paying for a portion of the older child’s general support since she is paying half her boarding fees. The issue of whether the final award, in effect, improperly fails to consider the benefit that accrues to Appellee as a result of requiring Appellant to pay what amounts to child support for that portion of the older child’s general support incurred during the months she lives at boarding school further illustrates the deficiencies in the child support worksheets that the court prepared in this case. As noted, the facts appear to have been fashioned in a manner to arrive at an order that appears to have been pre-determined by the trial court. Appellant complains that this results in the parent earning just over 42% of the parties’ combined income is required to bear over 58% of the total child support expenses for the two children. We do not hold that such an apportionment is erroneous as a matter of law. In fact, deviations may be awarded when the presumptive amount would be unjust or inappropriate considering the relative ability of each parent and in order to arrive at a child support determination that is in the best interest of the child. See OCGA § 19–6–15(c)(2)(E) and (i)(1)(B). The deviations must be based, however, on accurate facts to guide the calculations set out in the child support guidelines and worksheet and, as set forth above, that does not appear to have occurred in this case.

        Moreover, the deviations must be in the best interest of the child. Appellant shows that the younger child in this case is adversely impacted by the trial court’s decision not to require Appellee to contribute to that child’s support beyond paying half her tuition, whereas Appellant is effectively paying for half of the older child’s general support, in addition to half of her tuition, during the school year, thus leaving Appellant with fewer resources to support the younger child. That consideration is not reflected in either child support worksheet. The benefit that accrues to Appellee for this contribution to the older child’s general support is also not reflected in the worksheets. At the hearing, the trial court noted that these parents have elected to spend a greater portion of their combined resources on the higher education of the older child. This election, however, does not appear to justify the judge’s apparently pre-determined decision to relieve Appellee of any duty to support the younger child beyond paying half of her tuition. The cumulative effect of these material inaccuracies and inconsistencies requires us to find the court abused its discretion in arriving at the final order of child support in this case. Upon remand, the trial court is directed to apply accurate facts and figures to the case so the calculations of the child support worksheets are accurate and any deviations granted are properly supported by findings based upon these facts.

        5. Finally, the court erred by finding in its final order that “the parties have agreed and determined that deviations from [the presumptive child support amounts reflected on the child support worksheets] are appropriate as shown on the Worksheets.” The transcript and record reflect that the parties did not submit child support worksheets that had been jointly agreed upon, that the court prepared the worksheets that were incorporated into the final order, and that once those had been provided to the parties subsequent to the hearing at which the court announced its ruling, Appellant objected to the worksheets and the proposed order. Prior to the entry of the final order, Appellant filed a motion for reconsideration to which she attached proposed alternative worksheets for each child. Although the motion was denied, its filing shows that the parties did not agree to the deviations set forth in the final order. Thus, that finding in the final order is reversed. Upon remand, the trial court is required to enter a new final order revised in accordance with this opinion and based upon newly prepared child support worksheets.

        Judgment affirmed in part and reversed in part, and case remanded with direction.

All the Justices concur.

——–

Notes:

        1. Appellant initially filed her petition in the Superior Court of Houston County under the Uniform Child Custody Jurisdiction and Enforcement Act and, after the trial court ruled it had jurisdiction, she amended her petition asking the trial court also to enter a child support order under UIFSA.

        2. As more fully set forth below, the younger child lived with Appellant/Mother in Georgia. The older child lived with Appellee/Father in Alaska.

        3. The petition in O’Quinn was brought under the Uniform Reciprocal Enforcement of Support Act, which was replaced, with respect to proceedings filed on or after January 1, 1998, by the Uniform Interstate Family Support Act (Georgia Code Title 19, Ch. 11, Art. 3). See OCGA § 9–11–40.1.

        4. Neither does the worksheet for the older child.

        5. Appellee acknowledges the final order should be amended to correct this factual error.