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The Wills for Heroes program will be in Mason, Ohio this weekend.  This program provides free wills for first responders and their spouse or domestic partner.  Three members of the Subashi & Wildermuth team will be volunteering their services at this event –Tabitha Justice, Lauren Epperley, and Brittany Radin.

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In each of these cases, a student had used offensive language online, after school hours, to berate school administrators or fellow students.  School officials disciplined the students for the behavior, and the students filed suit on First Amendment grounds.  The 3rd Circuit decided the school districts violated the students’ Constitutional rights to free speech because the online conduct had not caused substantial disruptions in school.  The Court relied upon prior Supreme Court precedent in Tinker v. Des Moines Ind. Comm. Sch. Dist.  The 4th Circuit, however, relying upon that same precedent, decided the school district had a compelling interest in regulating speech that interfered with or disrupted the work and discipline of the school, including online bullying. The only apparent factor distinguishing the 3^rd Cir. and 4^th Cir. decisions is that J.S. and Layshock both dealt with student-on-administrator bullying, while Kowalski dealt with student-on-student bullying.

Many entities, including the ACLU and the National School Board Association weighed in on these cases in an effort to get the Supreme Court to resolve the question.  While these scenarios are occurring more frequently as students have greater access to technology, school administrators currently have very little guidance on how to proceed.  On the one hand, the public is critical of schools for not doing more to stop bullying.  On the other hand, the students have free speech rights.

Without explanation, the Supreme Court declined to resolve the conflict of law, and schools across the country will continue to struggle with this issue.

Fortunately, most school law attorneys, including those at Subashi & Wildermuth, have crafted recommendations and advice on this topic.  When the next teacher or parent comes into the Superintendent’s office to complain that little Johnny slandered them on Facebook, the first call should be to legal counsel.

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Super Lawyers are selected based on statewide nominations, peer evaluations in their primary practice area, and independent research.  All candidates are evaluated on twelve specific indicators of peer recognition and professional achievement.  Fewer than 5% of Ohio lawyers receive this recognition.

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 Another officer with lights on, went around the ssupect and set up a small roadblock.  The suspect drove over a curb to evade the officer.  At that point, the first officer turns on her lights and sirens.  She still maintains a distance behind the suspect and followed him only close enough to keep him in her sight so she could alert other officers in the area.  The suspect ran a stop sign and caused another motorist to take evasive action.  The first officer stops at the same stop sign and even allows another officer to get in front of her.  The cameras show both officers slowing for intersections and driving reasonably while the suspect got farther ahead.  About five blocks in front of the officers, the suspect caused a collision, injuring the individuals in the other vehicle. 

 The individuals in the third car filed suit against the suspect, the officer, and the city.  They argued the officer was negligent in continuing the pursuit and that her negligence resulted in the accident.  The trial court denied the motion for summary judgment filed by the public defendants.  The court concluded there was a question of fact as to whether the officer was responding to an emergency call under R.C. Chapter 2744 and whether the officer’s actions were reckless.

 The Court of Appeals reversed.  Explaining that recklessness is defined as a “perverse disregard of a known risk,” the Court concluded that reasonable minds could only conclude that the officer’s conduct did not rise to that level.  Indeed, the officer displayed a great deal of caution and tempered her pursuit of the stolen vehicle to lessen the suspect’s motive to drive recklessly.  She used lights and sirens and the cameras on her cruiser showed that she proceeded cautiously through intersections in consideration for the well-being of civilians.  Thus, “no reasonable juror could find that she perversely disregarded the risk that the pursuit posed to other drivers.”

 The plaintiffs argued that it was reckless for the officer not to immediately stop the pursuit when she observed the suspect driving erratically.  Relying upon the U.S. Supreme Court’s decision in Scott v. Harris (2007), 550 U.S. 372, the court said, “[w]e find this argument unavailing.  As we stated above, police officers do not have a duty to refrain from all pursuit.  Additionally, if we accepted plaintiffs’ argument, we would reach a holding that would encourage suspects to drive recklessly so that police officers would be forced to stop any pursuit or face liability for harm caused by the suspects’ driving.  We refuse to create such a perverse incentive for suspects.”

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