Posted by Ben Raybin:

Today, the Sixth Circuit Court of Appeals overruled an award of $200,000 to a pregnant inmate who was shackled immediately before and after giving birth.  Villegas v. Metro. Gov’t of Nashville, -F.3d-, No. 11-6031 (6th Cir. March 4, 2013).  The appeals court simply decided that the case should have been decided by a jury rather than a judge.  Thus, the claim remains intact and will likely continue following a remand back to the trial court.

Juana Villegas was arrested for driving without a valid license and, once in jail, was determined to be an undocumented immigrant.  As a result, she was classified as a “medium-security inmate.”  A few days later, while still in jail, she began to deliver her child and was transported to a hospital in shackles.  The shackles were removed while she gave birth, but she was restrained to the bed thereafter.

In 2011, Federal District Judge William Haynes, Jr. granted summary judgment to Villegas for her claim that—as a matter of law—the jail guards were “deliberately indifferent” to her medical needs by shackling her.  After a three day trial on damages, a jury awarded her $200,000.

In a 2-1 ruling, the Sixth Circuit disagreed with Judge Haynes’s legal ruling.  The majority explained that her claim has two components: (1) whether Villegas faced a “substantial risk to her health or safety” from being shackled and (2) whether the guards were actually aware of that risk.

The majority recognized that shackling a pregnant detainee while in labor may violate the Constitution but concluded that the right to be free from such treatment is “not unqualified.”  Specifically, there may be situations in which the inmate poses a threat to herself or others or may be likely to escape.  Since Villegas was a “medium security” inmate facing deportation, the court concluded that a jury could find that guards were entitled to restrain her.  Similarly, the court concluded that the guards may not have actually known the risk to Villegas would outweigh the chances of her trying to escape.

The dissenting judge concluded that the trial court’s ruling should stand because none of the disputes of fact are “material” to the case, making a judicial ruling appropriate without the need for a jury to weigh the jail’s liability.

This holiday there will be a lot of people on the road. Some may be drinking.

This holiday there will be a lot of law enforcement officers on the road. They will be looking to arrest folks who are under the influence.

With certain exceptions most people under suspicion of driving under the influence will be given the option of taking  the breath test. What should you do?

If you do not take the test you could lose your license anyway under our “implied consent” law.  If you do not take the test the officer can still arrest you if the officer has probable cause to think you are under the influence.

If the officer can secure a search warrant the officer can compel you to take a blood test. This option is not always available since the magistrate  may not be immediately accessible.

My advice is to go on and take the test if you have been responsible enough to have consumed only a few beverages.

There are many factors which influence the test result such as body weight and how long it has been since you last had a drink.

A low number or one “on the edge” can be strong evidence that you are not guilty of driving under the influence. That evidence is not available if you refuse the test.

Some folks are afraid that the test is not accurate. That is a well-founded concern up to a point. There are certain margins of error which will occur but not enough to justify the refusal to take the test.

The officer should give you the option of a blood test if you are willing to pay for it. The blood test is, in my view, far more accurate than the breath testing machine.

There are some other considerations  that will influence if the officer will even request a test. These include how you react to the officer to begin with. Do not ask a lot of questions. You are there to answer questions not ask them. And do not say, “I only had two beers.” That is a sure sign of deception.

Be certain that you have your license and registration with you and that they are current.  Be sure you have current proof of insurance.

Be certain all your equipment is functioning on your vehicle. You do not want to be “rolling probable cause.”

Make sure you are functioning as well. Stay off the cell phone while driving. Don’t text and drive.

Taking  the test is usually the correct choice.

Not drinking and driving is an even better option. Be safe and have a good holiday.

David Raybin

By David Raybin

Can the police subpoena your emails to your spouse?  Can your emails be subject to a subpoena?

Marital Privilege  Doctrine

Are your emails to your spouse protected when written on a work computer?  According to one very recent federal court ruling, not necessarily so.  United States v Hamilton, -F.3d-, (4th Cir. Dec. 13, 2012).  Although the case came out of Virginia, the same ruling will probably apply to the rest of the country since the decision was based on federal law.  This important case involves an interpretation of the marital privilege doctrine and how that applies in the Internet age.

Legislator Sends Incriminating Emails to his wife.

A member of the Virginia legislature — Phillip A. Hamilton — was found guilty of bribery and extortion for arranging funding for an education center at Old Dominion University in exchange for a job.  He was sentenced to 9 years in prison.

Hamilton argued on appeal that several  incriminating emails he sent to his wife should not have been allowed into evidence since they were privileged marital communications.

The trial court found that Hamilton had not taken any steps to protect his emails when he was put on notice that the employer had a policy that all emails were subject to inspection.

Waiver of marital privilege

The appellate court held that Hamilton had waived the marital privilege.  The emails were admissible and the conviction was affirmed.

Why was the Email Admissible?

The appellate court found that in an era in which email plays a ubiquitous role in daily communications, Hamilton’s arguments caution against lightly finding waiver of marital privilege by email usage.  The court found, however, that “Hamilton did not take any steps to protect the emails in question, even after he was on notice of his employer’s policy permitting inspection of emails stored on the system at the employer’s discretion.”

Employer Email Policy

Courts have held that a person did not have an “objectively reasonable” belief in the privacy of files on an office computer after his or her employer’s policy put the employee  ”on notice” that “it would be overseeing his Internet use.” Factors to be considered in determining privacy include the employer’s maintenance of relevant usage policy, monitoring of employee email, third-party right of access to email, and employees’ awareness of the policy as key factors suggesting no expectation of privacy.  Courts have made clear that a party waives the marital communications privilege when the employee “fails to take adequate precautions to maintain confidentiality.”

What is the law in Tennessee?

Communications between spouses have traditionally been considered privileged communications. It is part of the doctrine that spouses normally can’t testify against each other.

What happens to written or emailed communications? The courts usually give the same protection to written communications that apply to verbal communications.

Emails are written so they will be given the same protection as other documents. However, a privilege can be waived.

Waiver by Employer Policy

Emails are not private when the employer has a policy of monitoring emails. There is nothing illegal about that since the employee  tacitly consents to this as a condition of employment. Indeed, the email server belongs to the employer, so the employer can review what is on the servers. Thus, the emails can be reviewed by the employer.

Once this inspection policy is in place there is no privacy and emails can be subject to a police search warrant or even a subpoena in a civil case!

No Privilege.

Once the emails are obtained by the court, the emails can be used in evidence and no privilege applies. This includes traditionally privileged communications to a spouse, a lawyer, or a minister.

How to Protect Your Communications.

Do not use work-based emails for private communications that you want to stay private.

Employer Advice

To keep from being sued by your employees, make the employees aware in writing that all work-based email traffic is subject to inspection and there is no privilege available.  Post the notices and send the employees emails to that effect.