The Lawletter Vol 47 No 1

Trish Sifka—Senior Attorney, National Legal Research Group

      In May 2021, the Eighth Circuit affirmed the denial of the City of Minneapolis’s and a police officer’s motion to dismiss dog owners’ unlawful search and seizure claim under 42 U.S.C. § 1983. LeMay v. Mays, 18 F.4th 283 (8th Cir. 2021). Plaintiffs Jennifer LeMay and Courtney Livingston owned two pit bulls named Ciroc and Rocko, which were service animals for members of the family. Id. at 285. Livingston had accidentally triggered the burglar alarm. Officers Michael Mays and Daniel Ledman responded to conduct a residence security check. Officer Ledman went to the front door and Officer Mays climbed over a six-foot fence surrounding the backyard. After encountering Ciroc in the yard, Officer Mays shot him. The other dog, Rocko, walked from the front door near his owner after Ciroc was shot in the yard. Then, Officer Mays shot Rocko several times. Plaintiffs alleged that neither dog approached Officer Mays in a threatening manner. Although the dogs were not killed, both were critically injured enough so they were no longer able to act as service dogs. “LeMay and Livingston sued Mays and the City of Minneapolis under 42 U.S.C. § 1983, alleging Mays unlawfully searched their home and seized their dogs in violation of the Fourth and Fourteenth Amendments of the United States Constitution and the City was liable under Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).” Id. at 286. The Monell claim was dismissed. However, the district court denied the government’s assertion that Officer Mays was entitled to qualified immunity against the unlawful search and seizure claim.

The Lawletter Vol 46 No 3

Trish Sifka—Senior Attorney, National Legal Research Group

        An English Judge and Jurist, Sir Edward Coke, declared in 1604: “[T]he house of everyone is to him as his Castle and Fortress as well for defence against injury and violence, as for his repose[.]” This famous quote from the Court of King’s Bench has been simplified to essentially mean that “every man’s home is his castle” and, thus, deserves special protection. Sir Coke stated this as part of his ruling in Peter Semayne v. Richard Gresham & Estate of George Berisford. Gresham and Berisford were joint tenants of a house in Blackfriars, London. Berisford died while still owing a debt to Semayne, so Semayne sued for writ of attachment against the home.

        In Virginia, real property held as tenancy by the entirety is especially sacrosanct. Where a tenancy by the entirety in the fee simple is created, the property is completely immune from the claims of creditors against either husband or wife alone. Rogers v. Rogers, 257 Va. 323, 512 S.E.2d 821 (1999); Pitts v. United States, 242 Va. 254, 408 S.E.2d 901 (1991). “The tenancy by the entirety may be severed only by mutual consent of the spouses or by divorce.”  In re Bunker, 312 F.3d 145, 151 (4th Cir. 2002); see also In re Sampath, 314 B.R. 73, 92 (Bankr. E.D. Va. 2004) (“The tenancy by the entirety estate retains its full vitality in Virginia.”). Accordingly, a spouse cannot waive contest to forfeiture of real property held as tenancy by the entirety in a plea agreement because that would result in severing of the title without the other spouse’s consent.

The Lawletter Vol 45 No 5

Trish Sifka, Senior Attorney, National Legal Research Group

     On December 20, 2019, President Trump signed the National Defense Authorization Act ("NDAA"), SB 1790, 133 Stat 1198, into law. This legislation included a substantial "crack" in the over 70-year-old, court-imposed Feres doctrine, which barred tort claims by military members against the United States for injuries incurred incident to service. Under this new provision in the NDAA, the Department of Defense ("DOD") can administratively receive, review, and settle tort claims filed by military members for personal injury or death caused by the negligent or wrongful act or omission of a DOD health-care provider. However, there are limitations. The injuries must not have been sustained in a combat zone. Claims are limited to medical malpractice claims against military medical personnel at military medical facilities. The provision also sets a two-year statute of limitations except for 2017 injuries that are filed in 2020.   Damages will be based on average federal court damages data for similar injuries. Claimants will be allowed to be represented by an attorney, but there is no judicial review.