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Fortunately, Georgia Legislature Fails to Make It Illegal to Videotape Your Loved One’s Care in a Long-Term Facility

April 9, 2021 | Robin Frazer Clark

You may remember I wrote recently about the Georgia Supreme Court’s opinion in Nuckles v. State, 853 S.E.2d 81 (December 2020) in which the Supreme Court made it crystal clear that a loved one has the absolute right to place a hidden camera in a loved one’s room in an assisted living facility or long-term care home and that video from such a camera is admissible in court. And, of course, it should be. The resident or patient is considered an “occupier” of that property, i.e., his or her room, and may videotape what occurs on his “property.” Nuckles is a well-reasoned, common sense opinion authored by Judge Carla Wong McMillian and concurred in by all the other members of the Georgia Supreme Court, except Justice Warren who simply didn’t participate in the opinion for some reason.

That you should be able to videotape what treatment your loved one is getting in a long-term care home, and then when that videotape shows abuse by a caregiver, that you should be able to admit such videotape into evidence at trial does not seem to be a partisan or political position at all, does it? Don’t both Republicans and Democrats alike want the very best care for their aging loved ones and don’t Republicans and Democrats alike want to hold someone who would abuse their loved one accountable? That only makes sense, doesn’t it?

Well, not so fast. Enter the Republican-controlled Georgia House of Representatives and the Republican-controlled Georgia Senate with the help of the nursing home lobby. The Georgia Legislature decides it’s not such a good idea to be able to hold abusers accountable through hidden camera videotape, taken in the resident’s own room (their “castle” so to speak) and file a bill to undo Nuckles. This march to overturn Nuckles legislatively only two months later started with HB 605. This bill actually provided for criminal prosecution of anyone who set up a “nanny cam” in their loved one’s long-term care room. So imagine this: your parent suffers from dementia and lives in an assisted living home. You suspect he is being abused both physically and emotionally by the staff, so you set up a hidden camera to see how they treat him while you are not present. Sure enough, your “nannycam” video shows a staff member slapping your parent. You want to bring criminal charges against the person for abusing your parent. But HB 605 would have actually authorized criminal charges against you! That bill passed the House. So on to the Senate. It was placed on the calendar to be voted on on the last night of the General Assembly session. There, Senator Jen Jordan, and several other open-minded Senators, successfully amended the bill to eliminate the criminal prosecution provision in the scenario I laid out above. So the Senate passed that bill as amended. Now back to the House, during the final hours on the final day of the 2021 session. But once the piece in the bill making it illegal to have hidden cameras was no longer in the bill, the bill lost its only reason to exist in the first place! No need to pass a bill that essentially says nothing. The folks behind this bill wanted a law against hidden cameras because they can be used to hold these homes and “caregivers” liable for harming their residents. The House refuses to agree (by the narrowest of margins) to the Senate Substitute and so no law passes. The vote on this was 88 against and 77 in favor, so only an 11 vote margin. This law now is still out there to be picked up again by the Legislature when they begin their 2022 General Assembly Session.

Can You Legally Use a Videocamera in Your Loved One’s Room in a Nursing Home?

February 26, 2021 | Robin Frazer Clark

Videocameras are everywhere today. They have become a normal, integral part of our lives. Many of us carry a videocamera with us everyday, everywhere we go, on the cellphone we carry with us. We have “apps” on those cell phones that have as their soul purpose the easy viewing and sharing of videos. We can text videos to one another. It seems to be our instinct now that when we see something interesting, we immediately pull out our cell phone and start videotaping. Some people have made a lot of money selling those videotapes to advertisement companies to use in commercials. If you just “Google” “rat dragging pizza” you will find one such video that became so popular the person who filmed the video of the rat dragging the pizza sold the video and made alot of money from it. There is no question that many instances of police brutality and excessive force would never have even come to light if it were not for a videotape of it. The murder of Ahmaud Arbery is one such case. Ahmaud’s killers may very well have gotten away with their crime without any accountability in the criminal justice system had there been no video of the shooting. Many states are now making it mandatory that all officers wear “bodycams” that record an arrest or interaction with a citizen. In our prisons, correctional officers wear bodycams and even have numerous “use of force” cameras stashed away throughout a prison floor that the officers can quickly grab to film any interaction with an inmate. Some of us wear “Go Pros” on our bodies while we are engaging in some activity we believe is particularly athletic, so we can brag to our friends later “Look what I did!” Many of us have Ring videocameras on our front doors so we can see who is at our door when the doorbell rings or see when a package has been delivered. I even have a client who used a Ring videocamera in their daughter’s bedroom to record her nocturnal seizures. We have babycams that capture what infants do in their cribs when they are really supposed to be sleeping. Videocameras are in our elevators, in our parking garages and in our convenience stores. We have a “Furbo” which is a dog videocamera that records when our dog is barking or moving around or just sleeping. It even allows us to throw him a treat remotely from my cellphone from wherever I may be. I have to admit that “Furbo” still blows me away.

So it comes as no surprise that families who have loved ones living in nursing homes or long-term care homes would think it a good idea to place a camera in the room of their loved one to keep an eye on him or her while the family can not be there in person. Many families are, sometimes, rightfully worried that their loved one may be experiencing abuse at the hands of some of the employees of the nursing home. We are all familiar with cases where that has happened. Last year in a highly publicized case in Cobb County, Georgia an employee of an assisted living facility was tried for murder for the death of a 91 year old resident who died in 2017. The employee was found guilty of elder abuse but not of murder.

This begs the question: Is it legal to place a camera in your loved one’s room in an assisted care facility? Maybe you are thinking only a lawyer would even think about that. It seems so clear and obvious that yes, of course, you can place a camera in your loved one’s room. That’s the smart and loving thing to do. Who would possibly question that?

Whoever Wants To Serve on a Civil Jury Trial During a Pandemic Raise Your Hand~ Part Two

February 17, 2021 | Robin Frazer Clark

I hope many of you read my last blog post “Whoever Wants To Serve on a Civil Jury Trial During a Pandemic Raise Your Hand.” I received some wonderful comments about it, which led me to want to add a bit more to my thoughts on the subject and, hence, this is Part Two of that blog post. I want to add to the list of why it would not be a good thing to start back up civil jury trials right now when only a small percentage of the Georgia population has been vaccinated. That reason is that Covid-19, without dispute, has disproportionately affected African Americans and people of color (BIPOC) than other citizens. Even the CDC admits this. The CDC states:

“There is increasing evidence that some racial and ethnic minority groups are being disproportionately affected by COVID-19.^{[2], [3], [4], [5], [6]}Inequities in the social determinants of health, such as poverty and healthcare access, affecting these groups are interrelated and influence a wide range of health and quality-of-life outcomes and risks.^[1]To achieve health equity, barriers must be removed so that everyone has a fair opportunity to be as healthy as possible.”

And yesterday (February 16, 2021) Georgia tied its highest reported daily deaths of 180 from Covid-19, so that hospitalizations may be going down but the death rate is not.

A Loch Ness Monster Spotting: Qualified Immunity Denied to Texas Correctional Officers

December 7, 2020 | Robin Frazer Clark

I was checking the newly released opinions from the United States Supreme Court and Taylor v. Riojas (11/2/2020) caught my eye. I’m not sure why. I must have seen “qualified immunity” somewhere in the summary. Taylor v. Riojas was one of the bunch of qualified immunity cases coming up at the same time before the Supreme Court and on which there was much speculation over whether the Supreme Court might overturn the qualified immunity doctrine. “Qualified Immunity” is a judicially-created doctrine that gives police officers and correctional officers the benefit of the doubt when someone under their control has suffered injury. This Judge-made doctrine shields an officer from suit when she/he makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she/her confronted. Excuse the pun, but it is a get-out-of-jail-free card to officers.

I call the Taylor v. Riojas opinion a Loch Ness Monster because it denied correctional officers in Texas the usual qualified immunity. Thus, like the Loch Ness Monster, you have heard of cases in which (hypothetically) qualified immunity was denied but you have never actually seen one. Well, now you have. The United States Supreme Court reversed the 5th Circuit and remanded the case for trial. Before we take stock of that, you need to know the facts of the case. I am quoting directly from the 2 and 1/4 page opinion, perhaps the shortest in Supreme Court history.

“Petitioner Trent Taylor is an inmate in the custody of the Texas Department of Criminal Justice. Taylor alleges that, for six full days in September 2013, correctional officers confined him in a pair of shockingly unsanitary cells. The first cell was covered, nearly floor to ceiling, in “ ‘massive amounts’ of feces”: all over the floor, the ceiling, the window, the walls, and even “ ‘packed inside the water faucet.’ ” Taylor v. Stevens, 946 F.3d 211, 218 (CA5 2019). Fearing that his food and water would be contaminated, Taylor did not eat or drink for nearly four days. Correctional officers then moved Taylor to a second, frigidly cold cell, which was equipped with only a clogged drain in the floor to dispose of bodily wastes. Taylor held his bladder for over 24 hours, but he eventually (and involuntarily) relieved himself, causing the drain to overflow and raw sewage to spill across the floor. Because the cell lacked a bunk, and because Taylor was confined without clothing, he was left to sleep naked in sewage.

See You In Court

November 3, 2020 | Robin Frazer Clark

Friends:

I am happy to share with you that I have recently begun co-hosting a podcast called “See You In Court.” “See You In Court” is a podcast sponsored by the Georgia Civil Justice Foundation, on which I sit as a Board Member. My co-host is Lester Tate, partner and owner of the law firm Akin & Tate in Cartersville, Georgia. Lester is also, as I am, a Past President of the State Bar of Georgia and is also a Board Member of the Georgia Civil Justice Foundation.

“See You In Court” podcast is a joint project of the Georgia Civil Justice Foundation and the Georgia Institute of Technology School of Literature, Media and Communication. The Georgia Civil Justice System is a nonprofit foundation whose mission is to educate the public about the Georgia Civil Justice System and its value to the public in enforcing rights and holding negligent actors accountable for injuries they have caused. The Georgia Institute of Technology School of Literature, Media and Communication defines new models of intellectual inquiry and practice that bring diverse humanistic perspectives to bear on technological invention and innovation. The School’s mission is to lead the region, the nation, and the world in researching and teaching the ways the humanities shape and are shaped by science and technology. Understanding technologies in their cultural contexts is fundamental to invention and innovation. The School’s diverse faculty and students assess and inform technological and scientific change by creating, analyzing, and critiquing a broad range of media forms and cultural practices.

Mediation During the Time of Coronavirus

July 14, 2020 | Robin Frazer Clark

The global pandemic has caused many state legal systems to declare a judicial state of emergency. The state of Georgia is currently under state of emergency protocols that are set to last through August 11, 2020. When jury trials will restart in Georgia is any one’s guess. I just received a new Order from the Chief Judge of the Northern District of Georgia, Hon. Thomas Thrash, dated July 10, 2020, extending the Federal Judicial Order through August 30, 2020. In his Order, Chief Judge Thrash stated:

Data from the Georgia Department of Public Health reflects that the average number

of new COVID-19 cases per day in the State of Georgia has increased and remains higher

What Are “Excessive Force” Cases and Why Are They So Difficult?

June 3, 2020 | Robin Frazer Clark

This has been some week. Our Georgia Community was in the grips of disbelief and shock due to the murder of Ahmaud Arbery in Glenn County, Georgia, hoping and praying that things could not get worse…and then they did. The murder of George Floyd in Minneapolis has electrified the Nation to protest for Equal Justice Under Law for African-Americans, which is overdue by about 200 years. Because of these recent murders of African American males, the term of art “excessive force” has, unfortunately, wormed its way into our daily lexicon, heard as frequently now as “Facebook” or “Twitter” or “Coronavirus” (remember that?). So let’s look at what exactly is “excessive force,” how do you bring a lawsuit for “excessive force” and how difficult are they to be successful?

First, a civil action for “excessive force” by a police officer must be brought against the individual police officer, not the police department, pursuant to a Federal Statute, 42 U.S.C.A. § 1983. That statute states:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”

When Courts Become Political, Everyone Loses

May 14, 2020 | Robin Frazer Clark

I am struck today by the decision of the Wisconsin Supreme Court yesterday to rule that the Governor and the head of its Public Health Department did not have the authority to issue stay-at-home mandates during the Covid-19 pandemic. As the Governor of Wisconsin said, Wisconsin is now the “wild, wild west.” Chaos has already ensued in the less than 24 hours since the ruling, as predicted by Governor Tony Evers. Bars were packed last night in Wisconsin, with absolutely no social distancing (from the photos it looks like no distancing at all) and no masks being worn. World-leading scientists and epidemiologists predict this will necessarily cause a spike in Covid-19 cases and unnecessary suffering and deaths.

The first thing to note of this decision is that the case was brought by Republican Wisconsin Legislators against the Governor, so that essentially the Legislators were suing saying a bill they had passed was unconstitutional. Wait. What? How is that possible? They passed it. Surely, they can’t now file suit claiming the very thing they wrote, voted on and passed was actually unconstitutional from the get go. This turns the legislative process on its head.

The second thing to note is that this was a decision that ran along party lines in a very politicized state supreme court. The Wisconsin Supreme Court’s conservative-backed majority split in the 4-3 decision, with Chief Justice Patience Roggensack, Justice Daniel Kelly, who recently lost his bid for election, Justice Annette Ziegler, and Justice Rebecca Bradley voting to overturn Palm’s order. Conservative-backed Justice Brian Hagedorn joined the court’s two liberal-backed members, Justice Ann Walsh Bradley and Justice Rebecca Dallet, in dissent. You may remember that Justice Kelly, a Republican, recently ran for reelection as a Republican and even had the President of the United States come to Wisconsin and campaign for him in a unabashed political statement. Justice Kelly lost to a Democrat, Jill Karofsky but, alas, that Democrat hasn’t taken her seat on the bench yet. Otherwise, there is no question this decision would have come out the other way given the fact that even one Conservative justice sided with the dissenters. This recent election, you may recall, was another politicized decision by the Wisconsin Supreme Court as it ruled that the election in April, during the height of the Coronvirus crisis, had to proceed as originally scheduled and that Wisconsin citizens had to vote in person. Undoubtedly, the Republican members of the Supreme Court thought this would hold voting down as surely folks wouldn’t want to risk their lives voting, of all things But surprise! It didn’t work, and the Liberal Democratic candidate beat the Republican candidate who POTUS personally endorsed. Karofsky credited her win to voters rising up and rejecting Republican efforts to suppress turnout. “People were willing to do that because they wanted their voices to be heard in this election,” she said. “A lot of times on election day we’re wringing our hands because we’re so upset about voter apathy. That wasn’t the problem on Tuesday. People wanted their voices heard.”

Unprecedented Times: Keeping Litigation Moving in Georgia During the Coronavirus Isolation

March 25, 2020 | Robin Frazer Clark

Friends:

To say we are experiencing unprecedented times with the global pandemic of Coronavirus-COVID-19 would be a massive understatement. I hope you and your family are well, staying safe and healthy and weathering this storm. I am continuing working on all of my cases to the maximum extent I can at my home. With remote work capability, super high-speed internet and my case management system “in the Cloud,” I can work on any case from any location. I want to let you know how our Georgia Civil and Criminal Justice Systems are adapting to this season we find ourselves in and keep you up to date on all things legal in Georgia right now.

First, the Chief Justice of the Georgia Supreme Court Harold Melton has issued a Statewide Judicial Emergency Order through 11:59 a.m April 13, 2020. I believe Chief Justice Melton has shown great leadership with the issuance of this Order and through it, is doing the Court’s part in not spreading the virus in our courtrooms and alleviating much anxiety among litigants and lawyers.

When Our Justice System Fails~A Georgia Story of Injustice

February 17, 2020 | Robin Frazer Clark

I was struck this week with an opinion of the Georgia Court of Appeals in what is probably a very rare scenario: where the defendant has already served his entire sentence but the Court exercises jurisdiction to hear the appeal anyway. I would be curious to know how often that happens. My guess is almost never. So the scenario grabbed my attention since it is probably so rare. And you might be asking “What’s the point?” if the defendant is already out of prison anyway. Well, the Court answers “what’s the point” succinctly by saying Justice is the point. Justice is the point.

The case I am talking about is Denson v. State, A19A2307, 2020 WL 255433 (Ga. Ct. App. Jan. 17, 2020), authored by Judge Yvette Miller and concurred by Judge Rickman and Judge Reese. I commend it to your reading. It is a doozy. In this criminal appeal, the trial court did not hear the convicted defendant’s motion for new trial (that had ben timely filed in 2007) until 9 years after it had been filed, and the Georgia Court of Appeals did not resolve the defendant’s direct appeal until 13 years after the original conviction of defendant and after the defendant had served his entire sentence. Wait. What?

That’s right. And the Georgia Court of Appeals made it clear it would ignore the mootness of the their review, since the Defendant had already served his unjustly imposed sentence, to issue a warning to Georgia trial courts of the grave injusctice they may be doing to otherwise innocent criminal defendants. Whew. Like I said, it’s a doozy.