October is National Disability Employment Awareness Month

Written By Mari Bandoma Callado, Senior Associate Attorney & Director, Diversity, Equity & Inclusion

The Dolan Law Firm recognizes National Disability Employment Awareness Month this October to commemorate the many contributions of people with disabilities to America’s workplaces and economy.

This year, the theme for NDEAM 2021, “America’s Recovery: Powered by Inclusion,” reflects the importance of ensuring that people with disabilities have full access to employment and community involvement during the economic recovery from the COVID-19 pandemic.

Some people who have had COVID-19 have not completely recovered and instead, continue to experience ongoing symptoms for months afterward, known as Post-Acute COVID-19 Syndrome or long COVID-19 – and it has caused a wide variety of limitations.  

If you’re experiencing long COVID-19, and it’s affecting your ability to work, you may be entitled to accommodations under the Americans with Disabilities Act and the California Fair Employment Housing Act. Even if you don’t think of yourself as having a disability, you may meet the ADA or FEHA’s definition. Contact the Dolan Law Firm’s employment team to learn more. 

Other Resources: 

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Ruling Finds Proposition 22 Unconstitutional

Written By Christopher B. Dolan and Matthew D. Gramly

 

This week’s question comes from Josh D. from Marin County:

With our current 24-hour news cycle it’s hard to keep up with all the important issues in our daily lives. It seems like Proposition 22 was an initiative constantly discussed 5 years ago that went away. Did Proposition 22 ever take effect?

Thanks for reaching out Josh. Many people may have forgotten about Proposition 22. On August 20, 2021, Alameda County Superior Court Judge Frank Roesch ruled Proposition 22 to be unconstitutional. Recall that Proposition 22, a ballot initiative passed by California voters in 2019 permitted many gig economy companies such as Uber, Lyft and Door Dash to classify their drivers as independent contractors instead of employees of those companies. These companies and others poured over $200 million into the campaign to pass Proposition 22. The benefit to these companies in classifying their drivers as independent contractors (not employees of the companies) is that these companies can then evade almost every regulation in place governing how companies treat their employees as well as virtually every cost associated with having employees such as health insurance benefits, minimum wage laws, safety regulations, workers compensation insurance, etc. As it relates to drivers, these companies would be excused from paying employees mileage, reimbursing them for the cost of gasoline and vehicle maintenance. The cost savings to these companies would have been in the billions of dollars annually. The downside of course, is that the drivers would have to pay for their own health insurance coverage, for example, and would have almost none of the benefits that most full-time employees receive. The cost savings to the companies gets shifted almost entirely to the drivers as an expense to them.

Proposition 22 was far reaching and expansive in its language and in the sheer number of components it included. For instance, it also contained language that would prohibit drivers from forming a union. For that reason, as well, Judge Roesch wrote, Proposition 22 violated the Constitutional requirement that ballot initiatives be limited to a single subject. Relative to this component prohibiting unionization, Judge Roesch wrote that this prohibition,

“appears to only protect the economic interests of the network companies in having a divided, un-unionized workforce, which is not a stated legal goal of the legislation.” 

Judge Roesch is saying that the drafters of Proposition 22 overreached both on process and in substance.  

Proposition 22 itself was created as a ballot initiative by these companies as a direct response to Assembly Bill 5, a law passed by the California State Legislature and signed by Governor Gavin Newsom. AB 5 would have required these types of companies to classify their drivers as employees and conferring upon those employees such benefits as minimum wage protections, workers compensation insurance, overtime pay, etc. Much of the basis for Judge Roesch’s ruling in finding Proposition 22 to be unconstitutional rests largely on the idea that in California, in accordance with the California State Constitution, only the State Legislature can, for example, regulate compensation for workers’ injuries. That goal cannot be accomplished through a ballot initiative process because the Constitution grants that right exclusively to the Legislature. In essence Judge Roesch said that Proposition 22 took that power away from the Legislature, thereby violating the State Constitution. In his ruling, Judge Roesch did say that the voters of California do have the power to make such a change to the State Constitution, but “If the people wish to use their (ballot) initiative power to restrict or qualify a plenary and unlimited power granted to the Legislature, they must do so by (a ballot) initiative constitutional amendment, not by (a ballot) initiative statute.” Voters would have to amend the Constitution first, amending it to permit, in effect, the passage of legislation through ballot initiatives. Neither the voters nor the Legislature have thus far amended the State Constitution in such a manner. The State Legislature had followed the Constitution in properly passing AB 5 through the legislative process as dictated by the Constitution. The backers and authors of Proposition 22 had not, thereby violating the State Constitution.

A spokesperson for ride sharing company Uber said that the company will file an appeal of Judge Roesch’s ruling imminently. Uber has since filed their appeal and requested a stay on Judge Roesch’s ruling until their appeal is complete. That means that while Uber’s appeal is pending, Judge Roesch’s order does not yet take effect, thereby leaving Proposition 22 in effect unless and until the appellate court hears the case and issues a ruling. So, for now, at least, these companies do not yet have to classify their drivers as employees and can continue to classify them as independent contractors, saving companies like Uber, Lyft and Door Dash billions of dollars in costs in the meantime, to the detriment of their drivers.

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Celebrating Filipino American History Month with Dolan Law Firm

The Dolan Law Firm celebrates Filipino American History Month

By Dolan Law Firm, DE&I Committee

The celebration of Filipino American History Month in October commemorates the first recorded presence of Filipinos in the continental United States, which occurred on October 18, 1587, when “Luzones Indios” came ashore from the Spanish galleon Nuestra Senora de Esperanza and landed in what is now Morro Bay, California. 

Today, the Bay Area is home to the largest Filipino community outside of the Philippines and over 500,000 Filiipino Americans call the greater Los Angeles area their home. In 2009, U.S. Congress recognized October as Filipino American History Month in the United States. Various states (including California), counties, and cities in the U.S. have established proclamations and resolutions declaring observance of Filipino American History Month.

Filipino American History Month: 50 Years Since the First Young Filipino People’s Far West Convention

Each year, the Filipino American National Historical Society (FANHS) shares a theme for Filipino American History Month. This year’s theme is “50 Years Since the First Young Filipino People’s Far West Convention”.  The convention, which is hailed as the beginning of the Filipino American Movement, took place at Seattle University and brought over 300 young Filipino Americans from the West Coast. Learn more about the First Young Filipino People’s Far WEst Convention and FAHNS and Filipino American History Month here.

The FANHS states that

“this theme is particularly crucial in 2021, especially as we are still amidst a global pandemic that has disproportionately affected communities of color in general and Filipino American healthcare workers specifically. We are also still navigating a culture of state-sanctioned violence against Black, Indigenous, and People of Color (BIPOC), which resembles the historical racism faced by BIPOC communities (including Filipino Americans) throughout the history of the US. We are also still combating anti-Asian violence that resembles the anti-Asian and anti-Filipino violence that occurred a century ago in places like Watsonville, CA and Yakima Valley, WA. We must educate others – as well as our own families and communities – about our history, so that historical violence does not repeat itself over and over again.”

Activities and/or celebrations related to Filipino American History Month in the San Francisco Bay Area:

  • San Francisco Public Library: This year, the Library’s celebration honors the Filipino American community in the Bay Area’s resilience against the tragedies and travails of the COVID-19 pandemic with the theme darating ang liwanag, or “Hope will come.” Throughout the month of October, the public is invited to learn more about the unique history and contributions of this community through interactive workshops, demonstrations, book readings, and more. 
  • Filipino American History Month Celebration with SF Mayor London Breed: Filipino American History Month Celebration, hosted by San Francisco Mayor London N. Breed and the Filipino American Arts Exposition (FAAE), on Thursday, Oct. 21 at 5:30 PM.

Activities and/or celebrations related to Filipino American History Month in the the greater Los Angeles Area:

For additional resources available to better understand the history of and to honor the contributions of Filipino Americans in the US and California, check out:

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Latina Equal Pay Day | October 2021

By the Dolan Law Firm DEI Committee

Latina Equal Pay Day raises awareness about the wage gap and its impact on Latinx women and their families. It is recognized on October 21, 2021, because it is the day when Latina pay catches up to that of white, non-Hispanic men from the previous year. Today, Latinas typically earn only 57 cents for every dollar earned by white, non-Hispanic men and must work nearly 23 months to earn what white men earn in 12 months.  #LatinaEqualPay

Learn more at the 2021 Latina Equal Pay Day & Essential Women Worker Summit happening today at 10 a.m. The Summit will feature worker action sessions, surveys and story collection, and policy/organizing strategy discussions.

In California, several laws and regulations attempt to bridge the pay gap such as California Equal Pay Act (Labor Code section 1197.5) which prohibits an employer from paying its employees less than employees of the opposite sex, or of another race, or of another ethnicity for substantially-similar work.In addition, employers are prohibited from using prior salary to justify any sex-, race-, or ethnicity-based pay difference. Additionally, Labor Code Section 432.3, prohibits employers from asking job applicants about their salary history information, including compensation and benefits. 

If you believe that you are being treated differently because of your race and/or gender, contact the Dolan Law Firm’s team of employment attorneys.

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Celebrating Latinx/Hispanic Heritage Month By Dolan Law Firm’s DE&I Committee

Celebrating Latinx/Hispanic Heritage Month By the Dolan Law Firm DE&I Committee

In honor of Latinx/Hispanic Heritage Month, which is celebrated from September 15 to October 15, the Dolan Law Firm celebrates the culture of both Hispanic and Latinx individuals and communities.

Background

“Hispanic Heritage Month”  began as a weeklong celebration coined as “Hispanic Heritage Week” in 1968. President Lyndon Johnson signed the National Hispanic Heritage Week Bill (P.L. 90-498) and was eventually enacted into law on August 17, 1988 (law-100-402) by President Ronald Reagan who extended the week to a full 31 days.

Additional Important Dates

  • September 15 marks the independence day for various Latin countries, primarily from Central America: Costa Rica, El Salvador, Guatemala, Honduras and Nicaragua. 
  • September 16 is Mexico’s independence Day.
  • September 18 is Chile’s Independence Day.
  • The second Monday of October (October 11th this year) was originally observed as Christopher Columbus Day. However, many have rejected the commemoration of Columbus and have pushed for the holiday to be renamed to celebrate the unique and often indigenous ancestry of Latinx people. Many communities of color and officially recognized by cities and states across the U.S. celebrate Indigenous Peoples’ Day. Some Latin American cultures celebrate Dia de la Raza, Day of the Race or Day of Hispanic Heritage. Latinx/Hispanic Heritage Month is an opportunity to highlight and celebrate the rich contributions and diverse makeup of Latin American culture.

Debate on the term Hispanic or Latinx?

The term Latinx is originated in “activist circles primarily in the U.S. as an expansion of earlier gender-inclusive variations such as Latino/a and Latin@”. The “x”does not imply a specific gender – as would the “o” (masculine) or “a” (feminine) for nouns in Spanish and is meant to disrupt the grammatical binary that is inherent in this romance language” according to Joseph M. Pierce, an assistant professor in the Department of Hispanic Languages & Literature at Stony Brook University.

The difference between Latinx and Hispanic largely comes down to how you self-identify. Latinx has been adopted among people who are looking for a more gender-free alternative to Latino or Latina (leaving no option for those who choose to identify as non-binary).

Honoring Historical Events and Contributions Made by People of Hispanic/Latino Heritage

  1. Color TV  –  Guillermo Gonzalez Camarena, only 23-years-old, patented a chronoscope adapter with which black and white cameras of the day could capture color. NASA used the mechanism as recently as 1979 to transmit images of Jupiter.  
  2. Mendez v. Westminster – In 1946, eight years before Brown v. Board of Education, Mexican Americans in Orange County California won a class action lawsuit to dismantle the segregated school system. Federal District Judge Paul McCormick, delivered a landmark ruling that segregation of Mexican Americans was not only unenforceable under California law, but it violated the equal protection clause of the 14th Amendment to the U.S. Constitution. 
  3. Helen Rodriguez Trias  –  Headed the department of pediatrics at Lincoln Hospital in the South Bronx. In 1970 she was a founding member of the Committee to End Sterilization abuse and in 1971 a founding member of the Women’s Caucus of the American Public Health Association. She supported abortion rights, fought for the abolishment of enforced sterilization and sought neonatal care for underserved people. She drafted guidelines requiring a woman’s written consent to sterilization in a language they could understand and set a waiting period between the consent and the sterilization procedure. She is credited with helping to expand the range of public health services for women and children in minority and low-income populations in the United States, Central and South America, Africa, Asia, and the Middle East.
  4. Astronaut Ellen Ochoa became the first Latina to go to space in 1993. She served on a  nine-day mission aboard the space shuttle Discovery where she studied the Earth’s ozone layer, then returned to space three more times, spending nearly 1,000 hours in orbit. Ochoa was honored with NASA’s  distinguished Service Medal and served as the director of the Johnson Space Center in Houston Texas, from 2013 to 2018. In 2017, she was inducted to the United States Astronaut Hall of Fame and in 2018 she was inducted into the 2018 International Air and Space Hall of Fame class.
  5. Sonia Sotomayor – Became the first Latina Supreme Court Justice and the third woman to serve on the court. She ruled in the majority which upheld the Affordable Care Act twice, and in Obergefell v. Hodges, to legalize same-sex marriage in all 50 states.
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Hit and Run or Uninsured/Underinsured Motorist Insurance Claims

Written By Christopher B. Dolan and Kimberly E. Levy

This week’s question comes from Kate R. from Oakland:

I was rear-ended on the freeway a few days ago and the driver that hit me fled the scene. The police took a report but have not been able to identify the other driver. I ended up in the hospital with some serious injuries. I am not going to be able to go back to work for a few weeks, at least. The bills for my medical care are going to start piling up. I have no idea what to do. Please help.

Thank you for reaching out, Kate. We’re sorry to hear about what happened to you and hope that you make a speedy recovery. Navigating the claim process for a hit and run case can be complicated. The good news is that you may have purchased several types of insurance coverages that can help you through this difficult time.

Medical Payments Coverage (“Med Pay”):
What is it?

Med pay is an optional coverage that is part of your individual car insurance policy. Med pay covers reasonable and necessary medical bills when you (or your passengers) are injured in an accident. Med pay will even cover your reasonably necessary medical expenses if you are injured as a pedestrian or passenger in someone else’s car. This coverage applies regardless of who is at fault for the collision.

How does it work?
There are two ways that med pay typically works:

  1. You go to the medical provider of your choice and the provider bills the med pay directly as if it were health insurance; or
  2. You submit bills and records to your insurance company for reimbursement of paid or outstanding bills.

Why do I need this coverage if I have health insurance?
There are several reasons this coverage is useful even if you have health insurance.

  1. First, health insurance often leaves you to pick up the tab for co-pays and co-insurance amounts. With med pay coverage, you can be reimbursed for these out-of-pocket costs.
  2. Second, med pay enables injured people to seek treatment that would not normally be covered by their health insurance policy, i.e., acupuncture, massage, and other alternative treatments. Finally, med pay allows you to seek a second opinion by a medical provider of your choice which is often beneficial when your health insurance coverage is an HMO plan.

Uninsured/Underinsured Motorist Bodily Injury Coverage (“UM/UIM”):
What is it?

Uninsured/underinsured motorist coverage applies when another driver is at fault for a collision but either has no insurance or not enough insurance to cover the injured person’s medical bills and other damages. Importantly, this coverage also applies in hit and run cases, such as yours, when the identity of the at fault driver cannot be ascertained.  

In order to protect yourself against hit and run drivers, uninsured drivers, and drivers carrying the minimum amount of liability insurance (which is $15,000 in California), it is best to make sure you protect yourself with uninsured/underinsured coverage.  

How does it work?
With this coverage, your own insurance company covers your losses as if it were the at-fault driver—the insurance company steps into the shoes of the at-fault driver. In a UM/UIM case, you will make a claim against your own insurance company up to the amount of your purchased coverage. In some ways, UM/UIM cases are advantageous. Because you are in a contract with your insurance company, your insurance company has a duty to treat you fairly and regard your interests equally as its own interests. Unfortunately, you will not be entitled to a jury trial on these cases. UM/UIM cases are typically resolved by settlement or through an arbitration process (trial in front of a neutral “judge” agreed upon by the parties).

If you are injured in a hit and run accident, specific rules apply in order to trigger UM coverage. 

  1. First, there must have been contact between your vehicle and the hit and run vehicle.
  2. Second, within 24 hours after the accident, it must be reported to the police for the jurisdiction in which the accident happened.
  3. Third, within 30 days of the accident, you must provide your insurance company with a sworn statement that you were injured and that the person causing injury is unknown. Facts explaining the same must be provided in the sworn statement. Typically, a copy of the police report showing hit and run will be sufficient to meet this requirement. These requirements are set forth in California Insurance Code section 11580.2(b)(1) and (2).

Will making a claim increase my insurance premiums?
In California, it is illegal for an insurance company to raise rates when a policyholder brings a claim and was not at fault.  (California Insurance Code Section 491). As long as the other driver was the cause of the accident, your premiums should not increase. If there is an increase in the cost of your coverage based on claims activity made necessary by the fault of another, this should be reported to the California Department of Insurance.  

Do not concern yourself with the fact that payment is coming from your own insurance company versus the adverse driver or his/her/their insurance company. This is coverage that you have paid for and the insurance company is best equipped to bear the loss. The insurance company is free to seek reimbursement from an uninsured driver should that be feasible.

How long do I have to resolve my case?
Generally, in a UM case, you have two years from the date of the incident to either settle your claim or make a “demand for arbitration” – a process where you formally notify your insurance company that you would like to resolve your case by arbitration. Your insurance company has an obligation to keep you informed of these deadlines and requirements throughout the process.

So often, we think of insurance as a means to protect our assets and property. It is equally important, however, to remember to protect yourself against uninsured and underinsured motorists who may cause you harm. Review your insurance policy to see if you have the applicable coverage.  

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Medical Injury Compensation Reform Act and Medical Malpractice Cases

Written By Christopher Dolan and Casey Hultin

This week’s question comes from Pam from San Mateo:

A good friend of mine’s child recently passed away.  My friend believes that a doctor’s error caused her child’s death. Do you have any advice? How can the doctor be held accountable?

Dear Pam,

I am so sorry to hear your friend is going through this. What you are describing is called medical negligence or medical malpractice. Medical error is far too common and hundreds of thousands of Americans die each year as a result. Unfortunately, in the state of California, the options for recovery for the errors of medical providers and the ability to hold them accountable is extremely limited because of the Medical Injury Compensation Reform Act of 1975, otherwise known as “MICRA”.

MICRA was signed into law in 1975 and limits compensation for what are called “non-economic” damages, including things like pain and suffering and wrongful death damages for the loss of a loved one such as a parent, child, or spouse, or other impacts on quality of life such as the loss of a limb or cognitive function. MICRA limited the maximum recovery for non-economic damages for preventable medical negligence at no more than $250,000. This amount has not changed since 1975. With inflation, the $250,000 cap now would equate to approximately $50,000 in 1975. Roughly speaking, had this cap kept up with inflation, the cap would now be approximately $1.2 million.

Medical malpractice cases are long and difficult and often require the retention of expert witnesses. Costs to successfully hold a medical services provider accountable for negligence can exceed $100,000. While there are ways to potentially recover these costs through a jury trial, doing so is time consuming, stressful, and not a guarantee. As a result, there are not many lawyers that take on these cases, nor is this often something that people potentially want to pursue because of the small amount of net recovery once litigation costs and attorney fees are paid. Many plaintiffs go through multiple years of stressful, invasive litigation in medical malpractice cases. Medical malpractice cases are more costly than other personal injury cases such as automobile accidents, because defense attorneys and the insurance companies paying for them will take as many steps as possible to whittle down the already smaller pot for recovery. Jurors who decide these cases are not informed of the cap, and only find out after the verdict that the plaintiff’s recovery is limited to $250,000.

While your friend is thinking through whether to pursue a medical malpractice case, it is important to remember that there is a one-year statute of limitations on medical malpractice claims in California. The clock begins running when the plaintiff knew or had reason to know of the medical malpractice. This determination is case specific and not always easy to determine. If you are ever considering bringing a medical malpractice case, it is important to have your case evaluated as soon as possible. Evaluation of your case by a medical malpractice attorney also often involves an initial review of all available medical records by a doctor or other expert, so gathering all the medical records from the treatment at issue as expeditiously as possible will also help.

Economic damages are still recoverable under MICRA. Unfortunately, for the death of a child or someone who is not employed, economic damages will be relatively minimal, essentially limited to funeral expenses. When the injured person survives and has ongoing medical expenses related to the doctor’s error, the injured person can also recover for those medical expenses, with some limitations.

Another important thing to note about MICRA is that MICRA does not just limit what most people think of as medical malpractice, it also impacts recovery against other health care providers such as massage therapists.

California voters will have the opportunity to change the law in the November 2022 election when the Fairness for Injured Patients Act is on the ballot. The Fairness for Injured Patients Act will adjust for inflation the maximum $250,000 compensation cap set on quality of life and wrongful death survivor damages to approximately $1.2 million. It will also allow judges and jurors to decide that compensation above the cap is appropriate in the cases of catastrophic injury or death. Jurors will also be informed of the cap. Additionally, the Fairness for Injured Patients Act will adjust the limitations on economic damages recovery for medical malpractice cases so that insurance companies cannot shift the costs back onto parties that are not at fault.

Additionally, the Fairness for Injured Patients Act will extend the time to bring a claim for medical malpractice to two years instead of one year, which is more in line with the time to bring a claim for other personal injury causes of action.

I am again so sorry for your friend’s loss. They are lucky to have a friend like you supporting them in their time of need.

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New Legislation Encourages Bicycle Safety

Weekly Articles | On-The-Go

Written By Christopher B. Dolan and Emile A. Davis

This week’s question comes from Danielle T. from San Francisco:

I am a San Francisco resident and bicycle commuter. I ride to work daily and find it frustrating and unsafe to stop at a four way stop when it is clear for me to proceed. Often, when multiple cars are at the intersection, I feel I am slowing things down waiting my turn, and I have to rely on drivers seeing me and “allowing” me to take my turn in order to be safe. I don’t need the hassle of a ticket or people yelling, so I follow the law and stop, even though I am putting myself at risk. I think bicyclists should follow traffic laws, but there should be exceptions, or different rules for cyclists where it makes sense. Are there any changes coming? How can I help push for this type of change? 

Thank you for your thoughtful question, Danielle. As a cyclist myself, I share your concerns and observations that better rules which recognize the way cyclists use the road, particularly as it relates to bicyclists at stop signs. There is a potential solution on the horizon in California. The Safety Stop Bill (AB 122) has made its way through the legislature and is waiting for Governor Newsom to sign.

The Safety Stop Bill would change the requirements of cyclists at a stop sign. It would be lawful for a cyclist to treat a stop sign as yield sign, allowing them to proceed through so long as the intersection is clear. However, if other vehicles are at the intersection, or a pedestrian is in the process of crossing, bike riders must yield the right-of-way. 

California is not the first state to consider this type of law. Idaho was first, adopting a law in 1982 that allowed cyclists to treat a stop sign as a yield sign, and a red light as a stop sign. This “Idaho Stop” stood alone for many years until other states began to see the wisdom of adopting commonsense changes to the vehicle code to appropriately treat the different issues that cyclists bring to the roadway. More recently, Washington, Oregon and Colorado have adopted similar legislation allowing cyclists to proceed through stop signs when it is safe to do so. 

Legislation of this type is often met with a knee-jerk negative reaction from non-cyclists who are not used to the dangers and difficulties cyclists must interact with regularly. There are many reasons that laws of this type, and AB 122 in particular, are grounded in sound policy. Safety may be the most important reason. Studies have shown that where these types of laws go into effect, the rates of bicycle related accidents decrease. These laws just work. Cyclists have a clear view of the intersection without obstruction and, by necessity, have a keen awareness of the proximity of other vehicles. The bill would also conform the law to what is common practice which encourages respect for the law in general. This would have the added benefit of minimizing inequitable enforcement of laws and minimize pretextual stops of minorities for what is common behavior by all. A law of this type would bring us into conformity with our Pacific neighbors, Washington and Oregon, which have already enacted this type of law. 

It is no surprise that this law is supported by the local bicycle coalitions including, Bike East Bay, the San Francisco Bicycle Coalition, and the Marin Bicycle Coalition. Getting involved with these types of organizations is a good way to help be part of an organized push for cycle friendly legislation. Here, at the Dolan Law Firm, we have a long history of support of these organizations and the work they do on behalf of cyclists. 

 

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Rice v. City of Roy: A Police Shooting Incident Case

A federal jury rules unanimously in favor of Chris Dolan’s clients and finds excessive use of force used by police officer Chris Johnson. A verdict of $3, 257,000.00 was awarded to plaintiffs, in Federal Court, Tacoma Washington, and against Chris Johnson and the city of Roy on September 23, 2021. This case arises from a police officer involved shooting just south of the Roy Washington city limits in February of 2019.

FOR IMMEDIATE RELEASE

UNANIMOUS JURY HOLD ROY WASHINGTON POLICE OFFICER LIABLE FOR EXCESSIVE FORCE IN POLICE SHOOTING CASE

On September 23, 2021, a Federal Jury, In Tacoma, Washington, unanimously found that City of Roy Police Officer, Christopher Johnson, violated the Fourth Amendment rights of David Rice and Seth Donahue, when he shot them as they were traveling, unarmed, in their UTV on the BNR rail tracks inside the City of Roy, a rural city of less than 1,000 inhabitants covering .49 square miles. Roy has a police force of 2, one being the defendant, Christopher Johnson. The total verdict was $3,257,000.00.

FACTS:

February 9th, 2019, was a snowy day in Roy, located in Pierce County, Washington, about 60 miles outside of Seattle. Rice and his nephew, Donahue, had been out in their RZR UTV enjoying the 10-12 inches of snow traveling along trails, rail tracks and “tearing it up” through the city streets in Roy.  Admittedly, they had been drinking beer (ten and 13 beers respectively over 6 hours) that afternoon and evening. Officer Johnson alleged that Rice, driving the UTV, committed various traffic infractions and that he tried to pull the UTV over in town claiming that he activated his lights and siren, and that Rice and Donahue took off on the railroad tracks to evade him. Rice and Donahue stated they were unaware of Johnson’s pursuit, and it was shown that the rail tracks are a commonly used UTV trails. Home surveillance video, located nearby, peripherally caught the shooting on tape.  Dolan argued that “Johnson’s ego, being bruised, let him to turn off his lights and siren and race ahead to try and cut-off Rice and Donahue on the tracks at 295th St.  As Johnson approached perpendicular to the tracks, he turned off all the lights on his car “going dark” as the UTV approached.  Johnson then quickly drove the police vehicle towards the tracks, turned on only his spotlight, shined it down the tracks towards Rice, and ran from his police car, weapon drawn, towards the UTV.  Jonson admitted that he placed himself on the tracks, directly into the path of the approaching UTV and when the UTV didn’t stop, fired two shots into the front windshield and then two more into the passenger window as the UTV went by “fearing for his life.”  Johnson was hit by the UTV before firing.  Rice and Donahue testified that they were blinded by the spotlight, did not associate it with a police officer, and did not see Johnson until he shot them. Rice was struck on the right shoulder, with the bullet traveling into his chest, and also in the groin where the bullet passed through and exited his left leg. Donahue was shot in the right hand.   Dolan used accident constructionists, police procedures and ballistics experts as well as the Chief of the Roy Police Department (the other half of the 2 sworn officers) and Johnson himself, to show that he violated Roy’s Use of Force and Police Pursuit Policies and engaged in an excessive use of force.  Dolan and Jessup also prevailed on a Monelll Claim demonstrating the Chief and Mayor of Roy ratified Johnson’s conduct by failing to engage in an officer involved shooting inquiry and engaging in a disciplinary review of Johnson’s conduct and maintaining him on the force.

Dolan said “finally the tide is turning against police abuse. And justice under the 4th Amendment is being secured for those victimized by abuses of police powers. There is not an increase of police abuse, there is an increase in civil prosecution of these cases largely fueled and supported by modern day evidence generated by cell phones and private surveillance cameras.”

David Rice stated “I thank the jurors for their time and honesty and their courage to hold the police accountable. Their decision vindicates me and my nephew: we were out just having fun in the snow, we didn’t threaten anyone, hurt anyone, and were just about home when he ambushes us and shot us.  I’m a hunter and you couldn’t even shoot a deer this way without it being a crime.  The City of Roy has lied about what happened to the press through their press releases. The Jury saw through those lies.  The City of Roy needs to act to remove Johnson and he should be criminally prosecuted for his excessive use of force and abuse of power.”

Seth Donahue stated “I have been afraid of the Roy Police since the day this happened. They painted us out to be criminals when it was Officer Johnson who broke the law. We are good people who were having fun on a snowy night on rural roads, we didn’t know Johnson was supposedly chasing us and he came out of nowhere and opened fire. They need to take him off the street and take his gun and badge. Before he kills someone else.”

Further information may be obtained by contacting Chris Dolan at 415-279-2604 or Local Counsel, Doug Cloud at 253-921-1505

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