Monthly Archives: October 2017

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EMS Providers and Patient Refusal

EMS Providers and Patient Refusal
A patient refusing medical transport or care can be a stressful situation for all involved. It’s essential that EMS providers be aware of the applicable laws and protocols to avoid confusing and even dangerous situations for both the patient and provider. The Department of Transportation has set forth the standards for EMS since 1970. These standards state that all patients have the right to accept or refuse care after being informed about the care to be provided and the accompanying risks. In other words, a patient refusal is intended to be the result of an informed decision. This is an application of the concept of informed consent that has become universal to all healthcare providers. There is one important exception to the patient right of refusal: in an emergency situation where the patient is incapacitated, the EMS provider may treat him or her with emergency care based on the assumption that under the circumstances a normal person would consent. This is known as the doctrine of implied consent. There are two major issues that can muddy the waters when it comes to a patient’s ability to give informed consent: capacity to make decisions and age. Generally, an individual is considered capable of making an informed decision if they are able to understand the benefits and risks of both the proposed treatment and no treatment. This is simple enough in theory, but in practice it can be an extremely difficult evaluation to make in the field. For a patient to be judged incapacitated (in which case implied consent would kick in), it must be an emergency situation and two conditions must be met. First, the patient is incapacitated due to shock or trauma and is unable to make an informed decision. Secondly, a life-threatening disease or injury that requires immediate treatment must be present where further delay would result in death or impairment. If these requirements are met, the EMS provider can suspend the doctrine of informed consent and transport the patient even if this is against the patient’s wishes.  

Police Officers and Personal Civil Liability

Police Officers and Personal Civil Liability
This is a tense time for police officers. Due to controversial issues like police shootings and racial tensions, officers are facing a great deal of scrutiny into both their professional and private lives. Civil lawsuits directed at police officers are on the rise. It is especially important that officers be aware of the ways they could potentially be held personally liable for actions taken while on duty. Personal liability in this context means that a police officer can face a civil suit for actions taken in relation to their position as a law enforcement officer. For example, a person who claims they were intentionally injured by a police officer could bring a tort lawsuit against the officer. The most common type of lawsuit brought against police officers involves a violation of constitutional or statutory rights; this is known as a Bivens action. Common examples of this type of suit include:
  • An allegation of false arrest
  • An allegation of excessive force
  • An allegation of malicious prosecution
  • An allegation that a law enforcement officer failed to intervene in the unlawful actions of a fellow officer
When these kinds of allegations arise, the police department is usually sued for the law enforcement officer’s actions; however, the individual officer is targeted as well. Since a personal civil lawsuit could result in the officer paying significant out of pocket damages, these situations are understandably extremely stressful. The good news is that courts will generally defer to law enforcement officers and dismiss the suit. This is because most courts give officers a large amount of discretion in how they perform their duties. Additionally, the government will usually take on the defense of the officer once the lawsuit is filed. Even so, police officers should give serious consideration to maintaining a private insurance policy to cover legal defense and pay a judgement or settlement.

What Police Officers Need to Know About Giglio v. United States

What Police Officers Need to Know About Giglio v. United States

Giglio material (or Giglio information) is a well-known term among law enforcement, but there is often confusion over how and when it applies. Giglio v. United States, 405 U.S. 150is a 1972 Supreme Court case involving the prosecution’s obligations in regards to criminal discovery and disclosure. Prior to Giglio, the Supreme Court had found in Brady v. Maryland that due process is violated when the prosecution “withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty.” In Giglio, the Court went further and held that all impeachment evidence falls under the Brady holding. This means that the prosecution is obligated to disclose all information or material that may be used to impeach the credibility of prosecution witnesses (including situations where police officers act as witnesses for the prosecution).

The Brady and Giglio precedents require police officers to be especially careful to avoid any actions or statements that could compromise their credibility. The prosecution is legally required to disclose any misconduct or compromising information regarding the witness to the defense attorney, who will then use it to impeach the law enforcement witness on the stand. The end result can be the loss of what would have been a strong case. A common problem across police departments and other law enforcement agencies is a failure to consistently provide local prosecutor’s with credibility information. Often, internal politics end up determining who is reported to the prosecutor’s office as unreliable and who is not. In response, some departments have tried to institute strict truthfulness policies and terminate officers who violate them. Others will attempt to place the officer in an administrative assignment. The issue with both of these solutions is that police departments will inevitably act without any legal guidance and fail to follow the case law. In Nevada, state law defers to the Brady and Giglio standard in regards to prosecutorial disclosure. NRS 174.235 states that “the provisions of this section are not intended to affect any obligation placed upon the prosecuting attorney by the Constitution of this state or the Constitution of the United States to disclose exculpatory evidence to the defendant.” This obligation does not apply only to prosecutors. It has also been found that Brady and Giglio do not apply only to the prosecution. In United States v. Blanco (an appeal from the United States District Court for the District of Nevada), the Court of Appeals for the Ninth Circuit stated: “The obligation under Brady  and Giglio is the obligation of the government, not merely the obligation of the government.” In this case, the DEA had refused to provide information to the prosecution. Even though the prosecution had exercised due diligence by requesting that the DEA send over all Brady and Giglio material, due process was still violated by the DEA’s refusal to turn over exculpatory evidence. The Ninth Circuit held that the government, not just the prosecution, had obligations under Brady and Giglio. Police officers should be aware of the basic issues surrounding Giglio so they can fulfill their own obligations under the law and avoid compromising a criminal case. A memorandum from the office of the U.S. Attorney for Nevada provides AUSAs with questions they can ask potential law enforcement witnesses to determine if there are any Giglio issues. A good practice for police officers would be to periodically consider what their own answers would be to the following questions:
  • If the witness is aware of any specific instances of misconduct, both within and outside the scope of his or her employment, that may bear on the witness’ credibility (including the finding of a lack of candor during any administrative inquiry)
  • If the witness has any pending allegations of misconduct with his or her employing agency
  • If the witness has ever had criminal charges filed against him or her, regardless of the outcome of the charges
  • If the witness is aware of any evidence suggesting his or her bias against the target, subject or defendant
  • If the witness is aware of any findings of misconduct, allegations or pending investigations of misconduct similar to circumstances or potential defenses in the case (such as, coercion, entrapment, mishandling of evidence or use of force)
  • If the witness is aware of any prior findings by a court concerning the witness that may impact on the witness’ credibility
  • If the witness is aware of any negative allegations or opinions about the witness’ reputation or character that have been in media stories or otherwise publicly aired
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