Saturday, May 26, 2018

Massey Wins, Did Justice Lose?

Over an impassioned dissent that brings into question the integrity of the decision, the West Virginia Supreme Court of Appeals denied plaintiffs in a shareholders derivative suit arising from the Upper Big Branch disaster leave to amend their complaint to establish standing to pursue their claims. 

The circuit court concluded that under controlling Delaware law, the petitioners lack standing to pursue a derivative shareholder suit. Furthermore, the circuit court found that it would be futile to allow the petitioners to file their proposed Second Amended Complaint. For the reasons set forth below, we find no error in the circuit court’s rulings and, accordingly, we affirm.

The dissent of Chief Justice Workman

There are few tenets of civil procedure as well-established as the rule of liberality in permitting amendments of a complaint. In an action as substantively and procedurally complex—as well as inevitably protracted—as the case at bar, the equity and necessity of such liberality is made plain. The majority’s rejection of petitioners’ entirely reasonable attempt to amend their complaint to comport with newly-discovered facts which were previously well beyond their reach smacks of blatant result-orientation. As is evident from even a casual read of the opinion, the majority—rather than confining itself to the allegations viewed in the light most favorable to petitioners—indulges itself in the entire universe of facts adduced to date in limited discovery and in other litigation, draws inferences and makes conclusions thereon, and summarily declares respondents to be the victors. Because the Rule 12(b)(6) stage is indisputably not the appropriate setting for such factual assessments, nor is it this Court’s role to sit as a trier of fact, I dissent.

After the tragically well-known explosion at the Upper Big Branch mine owned and operated by Massey Energy Company (“Massey”) which killed twenty-nine miners, petitioners filed a derivative shareholder action against Massey directors and officers alleging that they breached their fiduciary duties by failing to comply with worker safety laws. Contemporaneous with this action, other shareholders filed derivative actions in Delaware. Those Delaware derivative actions have continued along a track parallel to the instant action; however, the instant action was stayed for a long period of time pending the federal prosecution of Don Blankenship and the bankruptcy of Alpha Natural Resources Inc. (“Alpha,” Massey’s successor).

Subsequent to the explosion and petitioners’ original complaint in this action, Massey undertook a merger with Alpha. Subsequent to that merger, additional discovery was obtained, along with newly-available evidence from the federal prosecution, allegedly revealing that certain Massey directors and/or officers orchestrated the merger to ensure their most culpable employees (certain mine superintendents) and officers had continued employment and could therefore protect themselves by controlling the investigation into the explosion. Petitioners allege that a higher bidder was discouraged because Alpha had agreed to a “social contract” which involved retention of these culpable employees. Petitioners allege this was all done to limit the personal liability of these individuals with respect to the explosion.

Petitioners now seek to amend their long-ago-filed complaint to assert facts in support of causes of action previously unavailable to them before receipt of this new complaint to even allege such a cause of action. In short, the majority has reviewed the cobbled-together evidence from various proceedings and determined, before even being permitted to amend their complaint, that petitioners cannot win under any circumstance. Making this bold proclamation before full discovery is even conducted seems less like legal analysis and more like reverse-engineering the outcome...

To suggest that petitioners’ proposed amended complaint—on its face—is starkly lacking in sufficient allegations of actionable malfeasance on the part of Massey’s officers, given all that is publicly known (and has been federally adjudicated) about this tragic incident is flabbergasting to say the least. If petitioners cannot satisfy the high bar set by the causes of action they seek to plead, that legal issue may be presented and determined at the summary judgment stage or resolved by the jury, as appropriate. To refuse petitioners the opportunity to even conduct discovery on their allegations now that the restraints of the federal prosecution and bankruptcy proceedings have been removed casts a pall over the majority’s analysis and potential motivations. “[T]he grant or denial of an opportunity to amend is within the discretion of the [court], but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the [] Rules.” Foman, 371 U.S. at 182...

I adamantly dissent.

Judge Tabit, sitting by designation, joined the dissent. (Mike Frisch) 

May 26, 2018 in Current Affairs | Permalink | Comments (2)

Tuesday, May 8, 2018

No Habeas For Chimpanzees

The New York Court of Appeals denied habeas relief with a concurring opinion from Judge Fahey

In these habeas corpus proceedings brought by petitioner Nonhuman Rights Project on behalf of Tommy and Kiko, two captive chimpanzees, petitioner seeks leave to appeal from an order of the Appellate Division, First Department affirming two judgments of Supreme Court declining to sign orders to show cause to grant the chimpanzees habeas relief. The adult chimpanzees, according to the habeas petition, have been confined by their owners to small cages in a warehouse and a cement storefront in a crowded residential area, respectively...

However, I write to underscore that denial of leave to appeal is not a decision on the merits of petitioner’s claims. The question will have to be addressed eventually. Can a non-human animal be entitled to release from confinement through the writ of habeas corpus? Should such a being be treated as a person or as property, in essence a thing? “A person illegally imprisoned or otherwise restrained in his liberty within the state, or one acting on his [or her] behalf . . . may petition without notice for a writ of habeas corpus to inquire into the cause of such detention and for deliverance” (CPLR § 7002 [a]). The lower courts in this appeal and related cases, in deciding that habeas corpus is unavailable to challenge the legality of the chimpanzees’ confinement, rely in the first instance on dictionary definitions. The habeas corpus statute does not define “person,” but dictionaries instruct us that the meaning of the word extends to any “entity . . . that is recognized by law as having most of the rights and duties of a human being” (Black’s Law Dictionary [10th ed 2014], person [3]; see also e.g. Oxford English Dictionary, [last accessed May 4, 2018], person [7] [“An individual . . . or corporate body . . . recognized by the law as having certain rights and duties”])...

The better approach in my view is to ask not whether a chimpanzee fits the definition of a person or whether a chimpanzee has the same rights and duties as a human being, but instead whether he or she has the right to liberty protected by habeas corpus. That question, one of precise moral and legal status, is the one that matters here. Moreover, the answer to that question will depend on our assessment of the intrinsic nature of chimpanzees as a species. The record before us in the motion for leave to appeal contains unrebutted evidence, in the form of affidavits from eminent primatologists, that chimpanzees have advanced cognitive abilities, including being able to remember the past and plan for the future, the capacities of self-awareness and self-control, and the ability to communicate through sign language. Chimpanzees make tools to catch insects; they recognize themselves in mirrors, photographs, and television images; they imitate others; they exhibit compassion and depression when a community member dies; they even display a sense of humor. Moreover, the amici philosophers with expertise in animal ethics and related areas draw our attention to recent evidence that chimpanzees demonstrate autonomy by selfinitiating intentional, adequately informed actions, free of controlling influence...

Does an intelligent nonhuman animal who thinks and plans and appreciates life as human beings do have the right to the protection of the law against arbitrary cruelties and enforced detentions visited on him or her? This is not merely a definitional question, but a deep dilemma of ethics and policy that demands our attention. To treat a chimpanzee as if he or she had no right to liberty protected by habeas corpus is to regard the chimpanzee as entirely lacking independent worth, as a mere resource for human use, a thing the value of which consists exclusively in its usefulness to others. Instead, we should consider whether a chimpanzee is an individual with inherent value who has the right to be treated with respect (see generally Regan, The Case for Animal Rights 248-250).

The Appellate Division’s approach to these proceedings is mistaken in another respect. Petitioner seeks the transfers of the chimpanzees to a primate sanctuary, rather than the wild. The Appellate Division held that habeas relief was properly denied, because petitioner “does not challenge the legality of the chimpanzees’ detention, but merely seeks
their transfer to a different facility” (Nonhuman Rights Project, Inc., 152 AD3d at 79; see also Matter of Nonhuman Rights Project, Inc. v Presti, 124 AD3d 1334, 1335 [4th Dept 2015], lv denied 26 NY3d 901 [2015]). Notably, the Appellate Division erred in this matter, by misreading the case it relied on, which instead stands for the proposition that habeas corpus can be used to seek a transfer to “an institution separate and different in nature from the . . . facility to which petitioner had been committed,” as opposed to a transfer “within the facility” (People ex rel. Dawson v Smith, 69 NY2d 689, 691 [1986]). The chimpanzees’ predicament is analogous to the former situation, not the latter.
The reliance on a paradigm that determines entitlement to a court decision based on whether the party is considered a “person” or relegated to the category of a “thing” amounts to a refusal to confront a manifest injustice. Whether a being has the right to seek freedom from confinement through the writ of habeas corpus should not be treated as a simple
either/or proposition. The evolving nature of life makes clear that chimpanzees and humans exist on a continuum of living beings. Chimpanzees share at least 96% of their DNA with humans. They are autonomous, intelligent creatures. To solve this dilemma, we have to recognize its complexity and confront it.

(Mike Frisch)

May 8, 2018 in Current Affairs | Permalink | Comments (0)

Monday, May 7, 2018

Freddie Gray Prosecutor Immune From Civil Liability

Immunity prevents a lawsuit against the Baltimore City State's Attorney for the prosecutions in the death of Freddie Gray, according to this opinion of the  United States Court of Appeals for the Fourth Circuit

Freddie Gray, Jr., suffered fatal injuries while handcuffed and shackled in the custody of the Baltimore City Police Department. The Baltimore State’s Attorney’s Office, led by State’s Attorney Marilyn Mosby, conducted an investigation into Gray’s death. After the State Medical Examiner ruled Gray’s death a homicide, Major Samuel Cogen of the Baltimore City Sheriff’s Office criminally charged six of the police officers involved in Gray’s arrest and detention. The same day, State’s Attorney Mosby announced the charges and read the supporting probable-cause statement to the public at a press conference. A grand jury subsequently indicted the officers on substantially similar counts,  but ultimately, none was convicted.

Five of the charged officers—Officer Edward Michael Nero, Officer Garrett Edward Miller, Lieutenant Brian Scott Rice, Officer William Porter, and Sergeant Alicia White (“Officers”) —now seek to make State’s Attorney Mosby stand trial for malicious prosecution, defamation, and false light invasion of privacy. They claim that her role in independently investigating their conduct strips her of absolute prosecutorial immunity and that their bare allegations of malice or gross negligence overcome Maryland’s statutory immunity protections. We resoundingly reject the invitation to cast aside decades of Supreme Court and circuit precedent to narrow the immunity prosecutors enjoy. And we find no justification for denying Mosby the protection from suit that the Maryland legislature has granted her.

The court had little patience for the claims

In conclusion, none of the Officers’ claims can survive the motion-to-dismiss stage. That the Officers disagree with Mosby’s decision to prosecute—as most defendants do— or with the information in the application for Statement of Charges—which inherently contains defamatory information—does not entitle them to litigate their disagreement in court, and much less recover damages.

The Officers’ malicious-prosecution claims epitomize the “vexatious litigation” that absolute prosecutorial immunity is designed to preclude. See Pachaly v. City of Lynchburg, 897 F.2d 723, 727‒28 (4th Cir. 1990). Having “transform[ed] [their] resentment at being prosecuted into the ascription of improper and malicious actions to the State’s advocate,” see Imbler, 424 U.S. at 425, the Officers ask us depart from well-settled law so that they can force Mosby to defend her decision to seek justice on behalf of Freddie Gray. We find their arguments both meritless and disconcerting.

The Officers’ defamation and false-light claims are equally bereft of support. The Officers cite no facts showing that Mosby spoke at the press conference with malice or gross negligence, as required by the MTCA. Their allegations, accepted as true, do not even negate that Mosby had probable cause to charge them. And the Officers’ contention that Mosby acted outside the scope of her employment by telling the public that she would pursue justice borders on absurd.

Perhaps to the Officers’ chagrin, they must accept that they are subject to the same laws as every other defendant who has been prosecuted and acquitted. Those laws clearly bar the type of retaliatory suits that the Officers brought here. The district court therefore erred in allowing their claims to proceed.

Judge Wilkinson concurred

I wish only to underscore my colleague’s concern about the perils of appellees’ defamation claim. State’s Attorney Mosby is an elected official. After the death of Freddie Gray, her community, her constituents, and her city faced a crisis of confidence. Baltimore’s citizens had their faith shaken, not only in the police, but in the very ability of government to administer justice. As any of us would expect of our political leaders, Mosby responded to a crisis. And as all of us should demand from our political leaders, Mosby explained her actions to the public. At a press conference, she read from a charging document, praised investigators, and explained the basis of the prosecution. To say that an elected official exposes herself to liability by discharging her democratic duty to justify the decisions she was elected to make is to elevate tort law above our most cherished constitutional ideals...

By advancing a theory of tort liability for explanations of official acts, the officers here strike at the very heart of the democratic dialogue. Courts must repel such attacks. In doing so, we honor our “profound national commitment to the principle that debate on public issues should be unlimited, robust, and wide-open” on all sides. Sullivan, 376 U.S. at 270.

Defamation law unbound is inimical to free expression. I thought the principle of New York Times v. Sullivan secure. But no. As the saying goes, the censors never sleep. Here they come again.

(Mike Frisch)

May 7, 2018 in Current Affairs | Permalink | Comments (0)

Wednesday, April 4, 2018

Conviction Affirmed In Law Office Murder

The Minnesota Supreme Court affirmed the conviction in a case involving the murder of a law firm employee

In April 2016, Petersen, a client of Northstar Criminal Defense, went to the law firm’s office and shot and killed the firm’s law clerk. The State initially filed a complaint charging Petersen with second-degree intentional murder. At his second court appearance, Petersen attempted to plead guilty to this charge. The district court refused to accept Petersen’s plea, however, when it learned that the State had amended its complaint to charge first-degree premeditated murder and was seeking a grand jury indictment. A grand jury indicted Petersen for first-degree murder 5 days later. Following a bench trial, the district court convicted and sentenced Petersen to life in prison without the possibility of release. Because the district court did not abuse its discretion in rejecting the plea, and because the circumstantial evidence is consistent with first-degree premeditated murder and inconsistent with any other rational hypothesis, we affirm.

Minnesota News Network reported on the crime. 

 A Saint Paul man faces second-degree murder charges for alleging shooting a law clerk at his attorney’s office because he was upset with how his case was being handled and couldn’t reach his lawyer. 37-year-old Ryan Peterson has a first court appearance Monday afternoon and prosecutors will ask that bail be set at one-and-a-half million dollars. 23-year-old Chase Passauer of Minneapolis was shot inside his office at North Star Criminal Defense in Saint Paul’s Cathedral Hill neighborhood. Petersen was apprehended late last night near Stillwater after a chase through Chisago and Washington counties.

The Star Tribune also had a story. (Mike Frisch)

April 4, 2018 in Current Affairs | Permalink | Comments (0)

Tuesday, March 27, 2018

But Her Server

The United States Court of Appeals for the District of Columbia Circuit affirmed the dismissal of Benghazi- inspired litigation

Sean Smith and Tyrone Woods tragically perished in the September 11, 2012, attacks on United States facilities in Benghazi, Libya. Their parents, Patricia Smith and Charles Woods, sued former Secretary of State Hillary Rodham Clinton for common-law torts based on her use of a private email server in conducting State Department affairs while Secretary of State and public statements about the cause of the attacks she made in her personal capacity while a presidential candidate. They appeal the substitution of the United States as the defendant on the claims involving the email server and the dismissal of their complaint for lack of subject matter jurisdiction and failure to state a claim. We affirm.

The court found that the various proposed causes of action either failed to state a claim or lacked subject matter jurisdiction

“An allegedly defamatory remark must be more than unpleasant or offensive; the language must make the plaintiff appear odious, infamous, or ridiculous.” Id. (internal quotation marks and citation omitted).

Clinton has made no such remarks here. In the ABC News interview, she contradicted Smith and Woods’s version of events but did not state or imply they were lying, instead noting she “underst[ood] [their] continuing grief.” Compl. ¶ 23(a). And in the Conway Daily Sun interview, it was the reporter, not Clinton, who posits someone is lying; all Clinton did was deny that she was lying. Id. ¶ 23(b). In the two subsequent interviews, Clinton bolstered her own version of events by noting that others present at the meeting supported her account and suggesting reasons why her recollection differed from that of Smith and Woods. Id. ¶ 23(c) and (d). Clinton did state that Ms. Smith was “absolutely wrong,” id. ¶ 23(c), but disagreeing with another person’s recollection does not necessarily imply that the other person is lying.

The appellants were represented by Larry Klayman. Secretary Clinton was represented by David Kendall. Jessie K. Liu represented the United States.

The per curiam opinion was signed by Circuit Judges Rogers, Millett and Pilliard. (Mike Frisch)

March 27, 2018 in Current Affairs | Permalink | Comments (0)

Friday, March 23, 2018

Darwin In Iowa

A divided Iowa Supreme Court has held that a defendant who entered a knowing guilty plea can claim actual innocence

we overrule our cases holding that defendants may only attack the intrinsic nature—the voluntary and intelligent character—of their pleas. We now hold the Iowa Constitution allows freestanding claims of actual innocence, so applicants may bring such claims to attack their pleas even though they entered their pleas knowingly and voluntarily. Accordingly, we adopt a freestanding claim of actual innocence that applicants may bring under our post conviction relief statute.  Therefore, we vacate the decision of the court of appeals, reverse the judgment of the district court, and remand the case to the district court for further consideration consistent with this opinion.

The plea

On April 2, 2007, Schmidt entered into a plea agreement. He agreed to plead guilty to assault with intent to commit sexual abuse, an aggravated misdemeanor in violation of Iowa Code section 709.11 (amended count I) and incest (count IV).

Chief Justice Cady concurred in Justice Wiggins' majority opinion

The process of justice must always be fair. This case stands tall as the embodiment of this fundamental principle of law. It is a substantial step forward in our constitutional march to become better. Innocent people should always have a forum to prove their innocence. I fully concur in the opinion of the court.

Yet, the actual process of justice available to Schmidt to now pursue the new claim given to him must also be fair. This fairness is the reason the case must be remanded to the district court for it to decide if summary adjudication should be granted. I write separately only to explain this important part of the case more fully and why the actual innocence claim cannot now be decided on appeal.

Going forward, when an actual-innocence claim based on the recantation of a witness is brought in our courts, summary judgment will remain a viable procedural vehicle for the state to ask the court to resolve the claim. Consistent with all summary judgment proceedings, the legal issue will be whether the moving party is entitled to summary judgment, under a set of facts assumed to be undisputed for the purposes of the motion, because a reasonable juror could still conclude the defendant is guilty of the crime. For purposes of summary adjudication of witness recantation claims, the undisputed facts needed to support the motion will normally center on the remaining evidence of guilt from other witnesses found in the minutes of testimony. In many cases, the remaining evidence may support summary judgment, as a reasonable juror could still convict the defendant based on the surviving evidence...

The case needs to be remanded to the district court so the State can amend its motion for summary judgment to claim Schmidt has failed to bring a claim of actual innocence that survives summary adjudication. The district court needs to consider the motion after Schmidt has filed an amended response. This procedure is required to ensure the process of justice is fair.

Justice Waterman dissented

I respectfully dissent and would affirm the district court’s summary judgment and the court of appeals decision affirming it under our long-standing precedent enforcing the legal effect of guilty pleas. I join Justice Mansfield’s separate dissent. This year, the United States Supreme Court resoundingly reiterated a fundamental legal tenet: a valid guilty plea waives the defendant’s constitutional right to trial and right to confront witnesses and “relinquishes any claim that would contradict the ‘admissions necessarily made upon entry of a voluntary plea of guilty.’ ” Class v. United States, 583 U.S. ___, ___, 138 S. Ct. 798, 805 (2018) (quoting United States v. Broce, 488 U.S. 563, 573–74, 109 S. Ct. 757, 764 (1989)). A guilty plea precludes a defendant from a later challenge in which he would “deny that he engaged in the conduct to which he admitted.” Id. All nine justices agreed with that proposition.

Dissent also from Justice Mansfield

I respectfully dissent. Constitutional interpretation is not Darwinian evolution, and a decision of this court today is not superior to the decisions that preceded it just because it is more recent. Whether this court is on a “constitutional march to become better” should be determined by others, not by ourselves.

While it is tempting to agree that “[i]nnocent people should always have a forum to prove their innocence,” the realities of any criminal justice system are more complex. Even the majority does not take this statement literally. For example, even the majority accepts for now the limits in Iowa Code chapter 822 on claims brought by those who say they are actually innocent.

I join Justice Waterman’s dissent, and write separately only to highlight several points.

First, this case does not involve an actual recantation.

Second, the rule that a guilty plea waives all defenses and objections which are not intrinsic to the plea is both long-standing and sound.

Third, the court has provided no doctrinal basis for grounding an actual-innocence claim in the Iowa Constitution.

Fourth, the court leaves many questions unanswered that will have to be sorted out by our district judges in the coming years...

 From the State’s perspective, I am guessing it would have simply preferred to try Schmidt all those years ago. In the long run, I am doubtful today’s decision will benefit defendants. More importantly, today’s decision needlessly overturns an established rule of law that was fair to all parties and worked well.

Excellent recent updates to the Iowa Supreme Court web page provides access to the briefs and oral arguments. (Mike Frisch)

March 23, 2018 in Current Affairs | Permalink | Comments (0)

Resentencing For Amy Locane

The New Jersey Appellate Division has vacated and remanded for resentencing Amy Locane's conviction for vehicular homicide and related offenses

In this case, the concurrent sentences resulted in a free crime. Defendant went unpunished for the injuries inflicted upon Seeman, despite the fact she could have easily made alternative arrangements the night of the accident and could have easily avoided driving, was extremely intoxicated, and was engaging in risky maneuvers before the crash. That is an error we cannot correct. reported on the crime. (Mike Frisch)

March 23, 2018 in Current Affairs | Permalink | Comments (0)

Wednesday, March 21, 2018

I'd Rather Be In Philadelphia

The Washington Times reported on a 2011 controversy involving the latest attorney brought into defend the Mueller probe

Prominent D.C. lawyer Joseph E. diGenova has billed himself as a battle-tested former prosecutor who, as the U.S. attorney in the nation’s capital, supervised the high-profile prosecution of John W. Hinckley Jr., who tried to kill President Reagan.

But Mr. diGenova had no role in the prosecution or the trial, according to court records and those who did prosecute the case. Although Hinckley was listed on his law firm biography for 10 years as one of his biggest cases as U.S. attorney, he wasn’t the U.S. attorney when the case was tried. He was named to the post 17 months after the case ended.

“Mr. diGenova played no role in the trial and did not supervise the case,” said Washington lawyer Roger M. Adelman, lead prosecutor who began working on the Hinckley case right after Reagan was shot on March 30, 1981, outside the Washington Hilton Hotel.

 Mr. Adelman asked Mr. diGenova this year to change his biography, which said that as the U.S. attorney in Washington from 1983 to 1988 he “supervised the prosecution of attempted presidential assassin, John W. Hinckley.” The biography now says he was the “principal assistant U.S. attorney” during the Hinckley prosecution.

But the change did not satisfy Marc B. Tucker, another member of the Hinckley prosecution team and now a lawyer in private practice. He said he was “enraged” by the original biography and that he had “never seen anything quite like this.” He said the revised version “still implies” that Mr. diGenova had a role in the case.

The same source noted that a complaint concerning this conduct was filed with the D.C. Bar Counsel, where it presumably was deposited in a circular file.

Disclosure: Roger Adelman was a friend for whom I had great admiration.

Roger was, among other things, a huge Phillies fan. He invited me to an NCLS game in Philly and was going to drive us up there in his signature Caddy. I begged off and gave away the ticket when the plans changed and he decided to take the train.

I missed Roy Halladay's no-hitter. (Mike Frisch)

March 21, 2018 in Current Affairs | Permalink | Comments (0)

Monday, March 12, 2018

Popcorn Alert

Up for argument this Thursday before the District of Columbia Court of Appeals


Larry Klayman, Pro Se

Richard W. Driscoll, Esquire

Panel: Chief Judge Blackburne-Rigsby; Associate Judges Fisher and Beckwith.

(Mike Frisch)

March 12, 2018 in Current Affairs | Permalink | Comments (0)

Friday, February 23, 2018

Google Immune

Google is not liable for content posted by a user per a decision issued today by the United States Court of Appeals fo.r the District of Columbia Circuit

Offended by a third-party blog post, Plaintiff Dawn Bennett (Bennett) and her company, DJ Bennett Holdings, LLC (DJ Bennett), sued Google LLC (Google) for failing to remove the post. They alleged three state-law causes of action: (1) defamation; (2) tortious interference with a business relationship; and (3) intentional infliction of emotional distress. The district court granted Google’s motion to dismiss, concluding that the Communications Decency Act (CDA), 47 U.S.C. § 230, immunized Google from liability for the publication of third party content. We affirm.

Precedent involves Larry Klayman

In Klayman, we held that “a website does not create or develop content when it merely provides a neutral means by which third parties can post information of their own independent choosing online.” Id. at 1358. We noted that, although the Facebook website’s “Statement of Rights and Responsibilities” might create an independent cause of action for breach of contract, the statement did not change the fact that the plaintiff was seeking to hold Facebook liable as a “publisher” of the objectionable material. Id. at 1359. Accordingly, we affirmed the district court’s dismissal of the plaintiff’s claims pursuant to section 230 of the CDA. Id.; see also Zeran, 129 F.3d at 331 (rejecting argument that defendant was “distributor” rather than “publisher” under CDA because it acquired “knowledge of the defamatory statements’ existence”).

This case is controlled by the three-part test in Klayman. First, as many other courts have found, Google qualifies as an “interactive computer service” provider because it “provides or enables computer access by multiple users to a computer  server.” 47 U.S.C. § 230(f)(2); see, e.g., Parker v. Google, Inc., 422 F. Supp. 2d 492, 501 (E.D. Pa. 2006), aff’d 242 F. App’x 833 (3d Cir. 2007) (“[T]here is no doubt that Google qualifies as an ‘interactive computer service’ and not an ‘information content provider.’”). Indeed, Bennett concedes that fact. Appellant’s Br. 6 (“Google provides interactive computer services, including websites and social media platforms.”). Second, Bennett alleges that only Pierson—and not Google—created the offensive content on the blog. Compl. ¶¶ 11-12.

Third, Bennett seeks to hold Google liable as a publisher of the content. Bennett argues that by establishing and enforcing its Blogger Content Policy, Google is influencing— and thus creating—the content it publishes. This argument ignores the core of CDA immunity, that is, “the very essence of publishing is making the decision whether to print or retract a given piece of content.” Klayman, 753 F.3d at 1359. In other words, there is a sharp dividing line between input and output in the CDA context. Id. Here, the input is the content of Pierson’s negative blog about Bennett’s business; that blog was created exclusively by Pierson. Google’s role was strictly one of output control; it had the choice of leaving Pierson’s post on its website or retracting it. It did not edit Pierson’s post nor did it dictate what Pierson should write. Because Google’s choice was limited to a “yes” or “no” decision whether to remove the post, its action constituted “the very essence of publishing.” Id.

In sum, the CDA “allows [computer service providers] to establish standards of decency without risking liability for doing so.” Green v. Am. Online, Inc., 318 F.3d 465, 472 (3d Cir. 2003). Although “other types of publishing activities might shade into creating or developing content,” the decision to print or retract is fundamentally a publishing decision for which the CDA provides explicit immunity. 

Circuit Judge Henderson authored the opinion. (Mike Frisch)

February 23, 2018 in Current Affairs | Permalink | Comments (0)

Thursday, February 15, 2018

Domestic Violence And Bar Discipline In The District of Columbia

When an attorney admitted to practice in the District of Columbia commits an act of domestic violence, such conduct constitutes a clear violation of D.C. Rule 8.4(b).

Comment [1] to the Rule states in part

Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category.

The appropriately intolerant view of the Board on Professional Responsibility came through clearly in In re Jacoby, Bar Docket No. 323-05 (BPR 5/11/2007), where the board advocated for a 60 day suspension as reciprocal discipline for a New Jersey censure

Respondent’s conviction in New Jersey was for a severe act of domestic violence: his wife suffered a dislocated shoulder as a result of being thrown twice into a wall of their home, requiring six months of physical therapy. Comment 1 to Rule 8.4(b) makes clear that “[o]ffenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice” fall within the Rule as conduct reflecting “adversely on [one’s] fitness to practice law (emphasis added).” See also In re Harkins, 899 A.2d 755, 759 (D.C. 2006) (respondent’s misdemeanor conviction of sexual abuse for touching another metro passenger on her thigh and buttocks, following her to another seat, and asking her to “Give me a call sometime, baby,” violated Rule 8.4(b), resulting in a thirty-day suspension). The Court held that the sexual nature of respondent’s conduct fulfilled the element of violence or threat of violence to bring this criminal conduct under Rule 8.4(b).

Despite not directly implicating honesty or trustworthiness, sexually abusive conduct, because of its inherently violent nature, calls into question one’s fitness as a lawyer and thus falls within the ambit of Rule 8.4(b). Harkins, 899 A.2d at 760.

The instant case raises no question as to the presence of “violence.” It is a clear violation of Rule 8.4(b) and in this jurisdiction “[t]he discipline for violation of Rule 8.4(b) has never been as lenient as public censure,” Id. at 761, the discipline imposed by the New Jersey Court. Rather, sanctions for such rule violations “have traditionally ranged from a thirty-day suspension to disbarment.” Id. Although we have been unable to uncover any domestic violence cases that arose as original jurisdiction matters, the Court has imposed disbarment in a reciprocal discipline case from the Court of Appeals of Maryland. In re Painter, 766 A.2d 49 (D.C. 2001) (per curiam) (evidence of a “long history of domestic violence.”). The Court in its Harkins opinion did cite with approval a case decided by the Supreme Court of Florida, Florida Bar v. Schreiber, 631 So. 2d 1081 (Fla. 1994), where the respondent was suspended for 120 days, with additional conditions, for the misdemeanor battery of domestic violence. As described in Harkins, such acts “warranted temporary suspension because it affected the perception of lawyers in a negative way.” Harkins, 899 A.2d at 760.

We note from the reciprocal record that Respondent’s explosive and violent behavior on March 5, 2005, involved two continuous acts of domestic violence, which we look at as one violent event...

The court imposed the suspension of 60 days. 

A second domestic assault by the same attorney drew a 36-month reciprocal suspension in D.C. based on a sanction imposed by the New York First Department.

As we reported, New Jersey had imposed a year suspension and fitness for that crime. 

Then there is the case of J. Michael Farren, convicted of attempted murder of his spouse, a crime that the board concluded involved moral turpitude per se

Respondent was convicted of attempted murder, in violation of C.G.S. § 53a-49(a)(2) (attempt) and § 53a-54a(a) (murder). The Court previously has held that murder for pecuniary gain, in violation of C.G.S. § 53a-54b (murder with special circumstances), is a crime of moral turpitude per se, because it requires proof of specific intent to cause the death of another person. In re Carpenter, 891 A.2d 223, 223 (D.C. 2006) (per curiam); see also Aron, Bar Docket No. 45- 99 at 3-4 (solicitation to commit murder under Maryland law is a crime of moral turpitude per se, because it involves “deliberate, intentional taking of the life of another person”). Similarly, conviction of attempted murder in violation of C.G.S. §§ 53a-49(a)(2) and 53a-54a(a) also “requires a finding of the specific intent to cause death.” State v. Murray, 757 A.2d 578, 583 (Conn. 2000). Based on this precedent, it is clear that Respondent’s conviction of attempted murder involves moral turpitude per se, requiring his disbarment under D.C. Code § 11-2503(a). 

The Stamford Advocate noted that the defendant was a "former White House attorney."

A former White House attorney who nearly bludgeoned his wife to death with a flashlight wants to delay paying her a $30 million settlement.

The attorney for Michael J. Farren asked Superior Court Judge Robert Genuario in Stamford on Monday to stop Mary Margaret Farren from collecting on a $28.6 million civil settlement until her client’s U.S. Supreme Court appeal is heard.

 Michael Farren, 63, who served as an attorney for both Bush administrations, is serving a 15-year prison term at the Garner Correctional Institution in Newtown, for the attempted murder of his wife during a violent, prolonged and vicious domestic assault in their New Canaan mansion in 2010.
New Caananite reported the conviction was appealed to the United States Supre me Court
According to a procedural history published by the Connecticut Judicial Branch, on the night of Jan. 6, 2010, the couple—both lawyers—were at their Wahackme Road home.

“The defendant and the plaintiff had been married for twelve years and had two young daughters. The plaintiff recently had served a complaint seeking to dissolve the parties’ marriage. The parties met in their home to discuss the action, which the plaintiff refused to withdraw, despite the defendant’s request that she do so. That night, the defendant physically assaulted the plaintiff with his hands, fists, and a flashlight, and said that he was going to kill her. The plaintiff lost consciousness from repeated blows to her head. When she regained consciousness, the defendant continued to hit her and attempted to strangle her. He also pulled out large amounts of her hair. Ultimately, the plaintiff and the children managed to escape from the defendant and to flee the home. Shortly after these events, and in addition to the marital dissolution action, the plaintiff initiated this civil action against the defendant to compensate her for the injuries that she suffered. The state also filed criminal charges against the defendant.”

Farren pleaded not guilty to charges of attempt to commit murder, first-degree assault and risk of injury to a child—and was convicted of all three offenses on Sept. 11, 2014, judicial records show. He is serving 15 years in a prison in Newtown.

The rule does not require a conviction to discipline the attorney if there is clear and convincing evidence of the violence. (Mike Frisch)

February 15, 2018 in Bar Discipline & Process, Current Affairs | Permalink | Comments (0)

Tuesday, February 13, 2018

Facebook Discovery In New York

A dispute over Facebook discovery in a personal injury action has been resolved by the New York Court of Appeals.

The plaintiff fell from defendant's horse and sued

At her deposition, plaintiff stated that she previously had a Facebook account on which she posted "a lot" of photographs showing her pre-accident active lifestyle but that she deactivated the account about six months after the accident and could not recall whether any post-accident photographs were posted. She maintained that she had become reclusive as a result of her injuries and also had difficulty using a computer and composing coherent messages. In that regard, plaintiff produced a document she wrote that contained misspelled words and faulty grammar in which she represented that she could no longer express herself the way she did before the accident. She contended, in particular, that a simple email could take hours to write because she had to go over written material several times to make sure it made sense.

Defendant sought full access to her account and the court here held

Before discovery has occurred – and unless the parties are already Facebook "friends" – the party seeking disclosure may view only the materials the account holder happens to have posted on the public portion of the account. Thus, a threshold rule requiring that party to "identify relevant information in [the] Facebook account" effectively permits disclosure only in limited circumstances, allowing the account holder to unilaterally obstruct disclosure merely by manipulating "privacy" settings or curating the materials on the public portion of the account.  Under such an approach, disclosure turns  on the extent to which some of the information sought is already accessible – and not, as it should, on whether it is "material and necessary to the prosecution or defense of an action" (see CPLR 3101[a]).

New York discovery rules do not condition a party’s receipt of disclosure on a showing that the items the party seeks actually exist; rather, the request need only be appropriately tailored and reasonably calculated to yield relevant information. Indeed, as the name suggests, the purpose of discovery is to determine if material relevant to a claim or defense exists. In many if not most instances, a party seeking disclosure will not be able to demonstrate that items it has not yet obtained contain material evidence. Thus, we reject the notion that the account holder’s so-called "privacy" settings govern the scope of disclosure of social media materials.

That being said, we agree with other courts that have rejected the notion that commencement of a personal injury action renders a party’s entire Facebook account automatically discoverable (see e.g. Kregg v Maldonado, 98 AD3d 1289, 1290 [4th Dept 2012] [rejecting motion to compel disclosure of all social media accounts involving injured party without prejudice to narrowly-tailored request seeking only relevant information]; Giacchetto, supra, 293 FRD 112, 115; Kennedy v Contract Pharmacal Corp., 2013 WL 1966219, *2 [ED NY 2013]). Directing disclosure of a party’s entire Facebook account is comparable to ordering discovery of every photograph or communication that party shared with any person on any topic prior to or since the incident giving rise to litigation – such an order would be likely to yield far more nonrelevant than relevant information. Even our broad disclosure paradigm, litigants are protected from "unnecessarily onerous application of the discovery statutes" (Kavanaugh, supra, 92 NY2d at 954).

Rather than applying a one-size-fits-all rule at either of these extremes, courts addressing disputes over the scope of social media discovery should employ our well-established rules – there is no need for a specialized or heightened factual predicate to avoid improper "fishing expeditions." In the event that judicial intervention becomes necessary, courts should first consider the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found on the Facebook account. Second, balancing the potential utility of the information sought against any specific "privacy" or other concerns raised by the account holder, the court should issue an order tailored to the particular controversy that identifies the types of materials that must be disclosed while avoiding disclosure of nonrelevant materials. In a personal injury case such as this it is appropriate to consider the nature of the underlying incident and the injuries claimed and to craft a rule for discovering information specific to each. Temporal limitations may also be appropriate – for example, the court should consider whether photographs or messages posted years before an accident are likely to be germane to the litigation. Moreover, to the extent the account may contain sensitive or embarrassing materials of marginal relevance, the account holder can seek protection from the court (see CPLR 3103[a]). Here, for example, Supreme Court exempted from disclosure any photographs of plaintiff depicting nudity or romantic encounters.

 Plaintiff suggests that disclosure of social media materials necessarily constitutes an unjustified invasion of privacy. We assume for purposes of resolving the narrow issue before us that some materials on a Facebook account may fairly be characterized as private.5 But even private materials may be subject to discovery if they are relevant. For example, medical records enjoy protection in many contexts under the physician-patient privilege (see CPLR 4504). But when a party commences an action, affirmatively placing a mental or physical condition in issue, certain privacy interests relating to relevant medical records – including the physician-patient privilege – are waived (see Arons v Jutkowitz, 9 NY3d 393, 409 [2007]; Dillenbeck v Hess, 73 NY2d 278, 287 [1989]). For purposes of disclosure, the threshold inquiry is not whether the materials sought are private but whether they are reasonably calculated to contain relevant information.

Applying these principles here, the Appellate Division erred in modifying Supreme Court’s order to further restrict disclosure of plaintiff’s Facebook account, limiting discovery to only those photographs plaintiff intended to introduce at trial. With respect  to the items Supreme Court ordered to be disclosed (the only portion of the discovery request we may consider), defendant more than met his threshold burden of showing that plaintiff’s Facebook account was reasonably likely to yield relevant evidence. At her deposition, plaintiff indicated that, during the period prior to the accident, she posted "a lot" of photographs showing her active lifestyle. Likewise, given plaintiff’s acknowledged tendency to post photographs representative of her activities on Facebook, there was a basis to infer that photographs she posted after the accident might be reflective of her post-accident activities and/or limitations. The request for these photographs was reasonably calculated to yield evidence relevant to plaintiff’s assertion that she could no longer engage in the activities she enjoyed before the accident and that she had become reclusive. It happens in this case that the order was naturally limited in temporal scope because plaintiff deactivated her Facebook account six months after the accident and Supreme Court further exercised its discretion to exclude photographs showing nudity or romantic encounters, if any, presumably to avoid undue embarrassment or invasion of privacy.

In addition, it was reasonably likely that the data revealing the timing and number of characters in posted messages would be relevant to plaintiffs’ claim that she suffered cognitive injuries that caused her to have difficulty writing and using the computer, particularly her claim that she is painstakingly slow in crafting messages. Because Supreme Court provided defendant no access to the content of any messages on the Facebook account (an aspect of the order we cannot review given defendant’s failure to appeal to the Appellate Division), we have no occasion to further address whether defendant made a showing sufficient to obtain disclosure of such content and, if so, how the order could have been tailored, in light of the facts and circumstances of this case, to avoid discovery of nonrelevant materials.7

In sum, the Appellate Division erred in concluding that defendant had not met his threshold burden of showing that the materials from plaintiff’s Facebook account that were ordered to be disclosed pursuant to Supreme Court’s order were reasonably calculated to contain evidence "material and necessary" to the litigation. A remittal is not necessary here because, in opposition to the motion, plaintiff neither made a claim of statutory privilege, nor offered any other specific reason – beyond the general assertion that defendant did not meet his threshold burden – why any of those materials should be shielded from disclosure.

(Mike Frisch)

February 13, 2018 in Current Affairs | Permalink | Comments (0)

Friday, December 15, 2017

Outsmarting A Narcissist: The FBI And Fake News

The United States Court of Appeals for the District of Columbia Circuit held that the FBI did not adequately search for information concerning "fake news" operations

In 2007, Seattle-area Timberline High School began receiving anonymous bomb threats, which prompted daily evacuations. See U.S. Department of Justice, Office of the Inspector General, A Review of the FBI’s Impersonation of a Journalist in a Criminal Investigation 1 (2016) (“OIG Report”), Joint Appendix (J.A.) 538. Unable to trace the emailed threats to their sender, local authorities called in cybercrime experts from the FBI’s Seattle Division. Id. Sensing the handiwork of a narcissist, the FBI agents devised a plan: if they could flatter the culprit into clicking a link to what appeared to be press coverage suggesting that he had outsmarted the authorities, they could, in turn, outsmart him by secretly delivering specialized malware that would reveal his computer’s location. Id. at 11–12, J.A. 548–49. Warrant in hand, an FBI Special Agent contacted an anonymous social media account associated with the threats, identified himself as an Associated Press “Staff Publisher,” and requested input on a draft article accessible through an emailed link. Id. at 14–15, J.A. 551–52. The suspect took the bait, clicking the link and unwittingly downloading the malware. Id. at 16, J.A. 553. Within hours, the FBI had its man. Id.

The court recounts that the matter received little notice until an ACLU technologist learned of the ruse.

Flash forward seven years to October 2014, when an American Civil Liberties Union technologist spotted a reference to the FBI’s ruse—which had previously drawn little public attention—in a set of FBI documents released years earlier to an electronic privacy organization. Troubled, the technologist took to Twitter, and within days, news of the media impersonation tactics employed at Timberline prompted headlines nationwide. Facing outcry from news outlets, interest groups, and members of Congress, then–FBI Director James Comey, Jr., penned a letter to the New York Times justifying the tactics. But the public’s interest had already been roused.

A FOIA request followed

Among those wanting to learn more were the Reporters Committee for Freedom of the Press and the Associated Press, appellants here...

During the course of litigation, the FBI eventually located and released some responsive records, most pertaining to Timberline and none identifying any other instances of media impersonation. The Reporters Committee insisted that the FBI’s search efforts were insufficient, but the district court disagreed and granted summary judgment to the agencies.

The court

The Reporters Committee argues that the FBI failed to justify its decision to limit its search for Group One records, i.e., “records concerning the FBI’s utilization of links to what are, or appear to be, news media articles or news media websites to install” malware, to the Tech Division, while searching more broadly for “documents referring to the decision to create the fake [Associated Press] news article in the Timberline High School case.” First Hardy Decl. ¶ 34, J.A. 110–11. Because the former set of requested records encompasses the latter, the Reporters Committee insists, the FBI acted illogically in declining to consider that locations reasonably likely to hold Timberline-specific records would be similarly likely to hold records pertaining more generally to other instances of media impersonation.

We agree that the FBI could have better justified its search methods. For Timberline documents, the Records Section ordered targeted searches of a number of Bureau divisions, including the Office of General Counsel, the Tech Division, the Behavioral Analysis Unit, the National Covert Operations Section, and the Training Division, id. ¶ 43, J.A. 114–15; by contrast, for the broader set of Group One documents, Records ordered a targeted search of the Tech Division alone, id. ¶ 38, J.A. 112–13. Attempting to justify this distinction, the FBI points out that the Group One request sought records linking media impersonation to the installation of malware, whereas the Timberline request sought records relating only to the decision to impersonate the press in the first place. Because “the FBI’s policy specifically states that [the Tech Division] is solely responsible for the deployment and collection of all lawfully conducted electronic surveillance [B]ureau wide,” Second Hardy Decl. ¶ 4, J.A. 491, the FBI reasoned, nowhere else was likely to hold records regarding the use of malware.

This does not follow. Certainly, the Tech Division’s role in approving malware use makes it likely to hold relevant records. But that hardly means that “no other FBI Divisions or personnel would reasonably likely possess records” regarding the tactics used to deploy such malware. First Hardy Decl. ¶ 40, J.A. 113. Indeed, the Timberline incident provides a ready illustration of just what those other divisions might be. For example, record evidence demonstrates that the agents involved in the Timberline investigation conferred with the Behavioral Analysis Unit regarding how best to deliver malware. See OIG Report at 12, J.A. 549. Further undermining its claim that malware-related records were likely to appear nowhere but the Tech Division, the Bureau on its own accord elected to group the request for “an accounting of the number of times . . . that the [FBI] has impersonated media organizations or generated media-style material . . . to deliver malicious software,” First Hardy Decl. ¶ 34, J.A. 111 (emphasis added), with the Group Two requests for which it ordered multiple targeted searches and not with the Group One request for which it searched only the Tech Division.

Put simply, given the FBI’s determination that certain divisions were “reasonably likely” to hold records relating to a specific instance where media impersonation was used to deliver malware, its failure to search these very same divisions for records relating to other such instances leaves us unable to conclude, barring some explanation, that the FBI searched for the latter records in a manner “reasonably expected to produce the information requested.” Oglesby, 920 F.2d at 68...

Finding that material factual questions remain as to the adequacy of the FBI’s search, we reverse and remand to the district court for further proceedings consistent with this opinion.

Circuit Judge Tatel authored the opinion joined by Circuit Judge Kavanuagh and Senior Judge Silberman.   (Mike Frisch)

December 15, 2017 in Current Affairs | Permalink | Comments (0)

Thursday, December 14, 2017

Constitutional Crisis In Florida: No Go On Quo Warranto

The Florida Supreme Court denied relief in a matter brought by the League of Women Voters. 

This case is before the Court on the petition of the League of Women Voters of Florida (the League) for a writ of quo warranto. Because the issue presented is not ripe for consideration, we dismiss the petition.

The League asks this Court to issue a writ of quo warranto against Governor Rick Scott prohibiting him from “filling any judicial vacancies on Florida’s appellate courts that occur due to terms expiring in January 2019.” The League’s basis for filing the petition is Governor Scott’s December 2016 announcement of intent to appoint the replacements for three justices of this Court. However, use of the writ to address prospective conduct is not appropriate...

Although Governor Scott announced his intent to appoint the replacements for three justices of this Court, clearly no appointments have been made. To use quo warranto to review an action which is merely contemplated but not consummated, as in the present case, would require this Court to depart from the historical application of the writ. This we decline to do. Until some action is taken by the Governor, the matter the League seeks to have resolved is not ripe, and this Court lacks jurisdiction to determine whether quo warranto relief is warranted.

Based upon the foregoing, the petition is hereby dismissed.

Justice Lewis dissents

It is most unfortunate that the majority finds it necessary to summarily dismiss this common law action to protect our State from blatantly unconstitutional actions for reasons other than a proper analysis of the law and do so directly contrary to the application of quo warranto in this judicial appointment context in 2016 in Lerman v. Scott, No. SC16-783, 2016 WL 3127708 *1 (Fla. June 3, 2016), in which the entire Court either concurred or concurred in result. It is even more regrettable and distressing that future Floridians have lost the ability to protect themselves and society from clearly unconstitutional action. The Florida Constitution requires devoted protection and the Florida citizens deserve better.

Contrary to Florida law and the general common law, the majority has now announced that the challenged conduct must have already produced a constitutional crisis and calamitous result before illegal acts of government officials are subject to quo warranto review or relief. Florida law has generally recognized that quo warranto is available to prevent significant impacts on the operation of government, Whiley v. Scott, 79 So. 3d 702, 708 (Fla. 2011), but the majority now negates that common sense, reasonable, and logical analysis to require that that illegal and unconstitutional conduct which produces disarray must have already occurred to allow judicial action. While writs of quo warranto may be applied to acts of state officials that have already been committed, the writ is not foreclosed as an avenue of relief for threatened and imminent future actions of state officials, based on the clear Florida law...

Under the majority view, elected politicians can announce their intentions and plan to engage in all types of illegal and harmful conduct but no relief is available until the illegal and harmful act has already inflicted its damage. Magnificent trees cut, pristine waters fouled, and unthinkable harm inflicted upon our citizens, which may not be prevented when the actor plans and even announces his intentions. Today, we have a new test. The writ is only available when the illegal act is taken and harm is actually inflicted—at times even irreparable harm.

December 14, 2017 in Current Affairs | Permalink | Comments (0)

Wednesday, December 6, 2017

Warrant Does Not Prevent Police Officer Liability

The United States Court of Appeals for the Fourth Circuit held that some claims against the estate of a police officer  who executed a warrant that required a photograph of the defendant's erect penis survive dismissal on the pleadings

In 2014, David E. Abbott, a detective with the Manassas City Police Department in Virginia, investigated allegations that 17-year-old Trey Sims used his cellular telephone to send sexually explicit photographs and video recordings of himself to his 15-year-old girlfriend. During the course of the investigation, Abbott obtained a search warrant authorizing photographs of Sims’ naked body, including his erect penis. When Abbott executed the warrant, he allegedly demanded that Sims manipulate his penis to achieve an erection. Sims unsuccessfully attempted to comply with Abbott’s order. The civil action before us is based on these alleged events.

Abbott died before the present case was filed. Sims therefore initiated this action against Kenneth Labowitz, the administrator of Abbott’s estate under Virginia Code § 64.2-454 (the Administrator). Sims asserted claims for damages under 42 U.S.C. § 1983, alleging that the search of his person violated his Fourth Amendment right of privacy or, alternatively, his right of substantive due process under the Fourteenth Amendment. Sims also brought a claim under 18 U.S.C. § 2255(a) alleging that, as a result of the search, he was the victim of manufactured child pornography. The district court determined that the Administrator was entitled to qualified immunity on the Section 1983 claims, and accordingly dismissed that portion of Sims’ action. The court also dismissed the remainder of Sims’ complaint.

Upon our review, we reverse the district court’s judgment with respect to the Section 1983 claim alleging a Fourth Amendment violation. Construing the facts in the light most favorable to Sims, a reasonable police officer would have known that attempting to obtain a photograph of a minor child’s erect penis, by ordering the child to masturbate in the presence of others, would unlawfully invade the child’s right of privacy under the Fourth Amendment. We therefore remand Sims’ Section 1983 claim alleging a Fourth Amendment violation to the district court for further proceedings. We affirm the district court’s dismissal of Sims’ remaining claims, including his claim for damages under 18 U.S.C. § 2255(a) as an alleged victim of child pornography.

Circuit Judge King dissented

I write separately to dissent from the majority’s denial of Detective Abbott’s qualified immunity claim. With great respect for my good colleagues, their decision fails to recognize the controlling facts that undermine the § 1983 claim of plaintiff Sims. That is, Detective Abbott was acting pursuant to the advice of counsel and adhering to a court order. In my view, Abbott’s actions were entirely consistent with applicable law and the Fourth Amendment. To explain my position more fully, this dissenting opinion contains three short segments. First, I emphasize the sanctity and importance of court orders. Second, I review the controlling facts and some guiding legal principles. Finally, I explain that Detective Abbott did not contravene any constitutional right and that he is entitled to qualified immunity. Put simply, I would affirm the district court.

The warrant authorized seizure of the following

Photographs of the genitals, hands, and other parts of the body of Trey Sims that will be used as comparisons in recovered forensic evidence from the victim and suspect’s electronic devices. This includes a photograph of the suspect’s erect penis.


Put simply, the search warrant at issue here was properly and legally issued, it was complied with, and Detective Abbott is entitled to qualified immunity.

The Washington Post reported on the death of the officer, who committed suicide when police came to his home to arrest him on sexual misconduct charges.

A Manassas City police detective, who was the lead investigator in a controversial teen “sexting” case last year, shot and killed himself outside his home Tuesday morning as police tried to arrest him for allegedly molesting two boys he met while coaching youth hockey in Prince William County.

David E. Abbott Jr., 39, was a member of the Northern Virginia-Washington D.C. Internet Crimes Against Children Task Force and had been an officer on the Manassas City force for 14 years. In his spare time he coached 13- and 14-year-old boys in travel hockey for the Potomac Patriots program at the Prince William Ice Center in Woodbridge, club officials said. When Prince William police learned Monday of the allegations of improper contact by Abbott over a period of years, they moved quickly.

Police said they learned that Abbott had sent inappropriate text messages and emails to a 13-year-old boy he met through the hockey program. By phone and social media, Abbott had been asking the boy for sex acts for more than two years, county police said.

Detectives then learned of a second potential victim, a boy who was 13 and was also part of the Patriots hockey club in 2008 when Abbott began sending him inappropriate messages, police said. Early Tuesday, Prince William police obtained a search warrant for Abbott’s townhouse on Senea Drive in Gainesville, where he lived with his mother. Police also obtained four felony arrest warrants — two counts of indecent liberties by a custodian and two counts of use of a communication device to solicit a sexual offense.

Police arrived at the townhouse about 2:30 a.m. Tuesday, Prince William Sgt. Jonathan Perok said. Abbott refused to surrender. Aware that the detective probably had weapons, the police then evacuated some nearby townhouses as a precaution, Perok said.

(Mike Frisch)

December 6, 2017 in Current Affairs | Permalink | Comments (0)

Monday, November 27, 2017

No Liability For Death Of The Bird

The Massachusetts Supreme Judicial Court affirmed the grant of summary judgment to defendants in claims arising from the death of Mark Fidrych

Mark Fidrych owned a dump truck that he used to haul soil. On the morning of April 13, 2009, Fidrych was seen at his farm working on the truck. Later that day, he was found dead underneath it, with his clothing caught up in a spinning universal joint (U-joint) that was part of the mechanical system used to tilt the "dump body" of the truck. The medical examiner identified the cause of death as accidental asphyxiation. In her capacity as executrix of Fidrych's estate, his widow, Ann Pantazis, filed a wrongful death action in the Superior Court. She sued, among others, Mack Trucks, Inc. (Mack Trucks), which manufactured the original, stripped-down version of the truck, and Parker-Hannifin Corporation (Parker-Hannifin), which had acquired the assets of Dana Corporation (Dana).  Dana manufactured a piece of equipment known as a "power take-off" (PTO), which was another part of the system used to tilt the dump body of Fidrych's truck. In two separate summary judgment rulings, different Superior Court judges ruled in favor of each of these defendants. We affirm.


we conclude that where, as here, the components manufactured by the defendants included no design defects, and the risks posed by the assembled product arose out of the addition of other components and the decisions made, and actions taken, by downstream actors, the defendants had no duty to warn of those dangers. Resolving the case as we do, we have no occasion to consider the defendants' other arguments, such as their claim that they had no duty to warn of the dangers posed by the exposed auxiliary drive shaft and U-joint in light of the obviousness of such risks, at least to someone with Fidrych's presumed familiarity with the truck that he had owned for over twenty years...

None of this is to say that appellate courts should never recognize exceptions to the component parts doctrine. In fact, this court recognized the possibility of such an exception in Morin v. AutoZone Northeast, Inc., 79 Mass. App. Ct. 39, 51-52 (2011).  Based on the summary judgment record and the arguments raised, the plaintiff has not demonstrated good cause to create an exception here.

(Mike Frisch)

November 27, 2017 in Current Affairs | Permalink | Comments (0)

Monday, November 13, 2017

Thirty Years And Going Strong

I am both pleased and proud to announce that the Georgetown Journal of Legal Ethics has just issued its 30th Anniversary Commemorative Issue.

The issue features the work of David Luban & Bradley Wendel, Laurel S. Terry, Carrie Menkel-Meadow, Mitt Regan, Ann Southworth, William H. Simon, Bruce A. Green and Deborah H. Rohde & Scott Cummings.

Tanina Rostain debates whether robots can be lawyers with Dana Remus & Frank Levy.

This truly all-star lineup is in itself a wonderful tribute to founder Robert F. Drinan.

Kudos to all who contributed, led by last years first - rate EIC John Secaras and his highly capable staff. (Mike Frisch)

November 13, 2017 in Current Affairs | Permalink | Comments (0)

Monday, October 30, 2017

No Care For The Dead

The Tennessee Court of Appeals held that the state health care liability statute did not apply to the alleged mishandling of a dead body

On July 29, 2014, Charles Ray Phillips (“Deceased”) was killed in a motor vehicle accident in Loudon County, Tennessee. Deceased suffered severe, extensive burns in the accident. Authorities at the accident site placed a call to Loudon County ambulance service and a Rural Metro ambulance responded. After arriving at the scene of the accident and seeing the condition of Deceased’s body, the ambulance employees refused to transport Deceased’s remains to a hospital. Allegedly, one of the ambulance employees stated he did not want Deceased to “stink up the ambulance.” Deceased’s body remained by the roadside until an out-of-county ambulance could be summoned to transport Deceased’s body. Local media reported the story including the comment about stinking up the ambulance.

Deceased’s parents, Cindy Phillips and Hobart Phillips (“Plaintiffs”), sued Rural Metro of Tennessee, L.P.; Rural Metro Corporation; and R/M of Tennessee G.P., Inc. (collectively “Rural Metro”), Johnathan Moore (“Moore”), and John Doe I & II alleging intentional infliction of emotional distress. In their Complaint, Plaintiffs allege: “The conduct of the defendants in this cause of action greatly magnified their grief and distress in a manner that is nearly incomprehensible. In addition to the loss of a child, they were reminded regularly in the news that [Deceased] was left by the roadway so as to not ‘stink up the ambulance.’”

Rural Metro and Moore filed motions to dismiss alleging, among other things, that this suit was one for health care liability and that the failure to file a pre-suit notice and a certificate of good faith pursuant to Tenn. Code Ann. §§ 29-26-121 and -122 was fatal to the action. The Trial Court denied the motion finding, in part, that this is not a health care liability action.


 We agree with the position that a dead body cannot be a patient to whom health care services can be rendered. By their very nature, health care services are designed to prolong, continue, or enhance life, and a dead body is, obviously, not alive. As such, a body simply cannot be a patient after death has occurred. Therefore, actions taken or refused with regard to a dead body cannot constitute rendering or failing to render health care services to a person for purposes of the Tennessee Health Care Liability Act. Given all this, we affirm that portion of the Trial Court’s judgment holding that the allegations set forth in the Complaint filed in this case do not make this suit a health care liability action as defined by the Tennessee Health Care Liability Act.

(Mike Frisch) 

October 30, 2017 in Current Affairs | Permalink | Comments (0)

Ethics Of Paying Fact Witness At Issue In Florida

From sunEthics

Under Rule 4-3.4(b), fact witnesses may be paid “reasonable compensation” for “preparing for, attending, and testifying at proceedings,” including assistance with case and discovery preparation. [Added 10/30/17]

Antaramian entered into a “Consulting Agreement” with Trial Practices, Inc. (“TPI”) under which TPI was to provide “various trial support services” for Antaramian in his suit against a third party.  Per the Agreement TPI was to receive 5% of any gross recovery that Antaramian obtained through verdict or settlement.  Antaramian and the third party settled, with each party dropping its claims.  Antaramian refused to pay TPI, asserting that he owed TPI nothing since he did not obtain a gross recovery.  TPI sued Antaramian for breach of contract.

The jury found for Antaramian, who then sought prevailing party fees pursuant to a clause in the Consulting Agreement which provided in part:  “[The] prevailing party in any action arising from or relating to this agreement will be entitled to recover all expenses of any nature incurred in any way in connection with the matter, whether incurred before litigation, during litigation, in an appeal, . . . or in connection with enforcement of a judgment, including, but not limited to, attorneys' and experts’ fees.” 

The court awarded prevailing party fees to the Hahn law firm, which was substituted for Antaramian at his death.  The award included fees for litigating the amount of fees to which Hahn was entitled.  TPI appealed.

The Second DCA affirmed.  “Both the Florida Supreme Court and this court have recognized that when parties are seeking attorneys’ fees pursuant to a statute, the parties are not necessarily entitled to recover attorneys’ fees for litigating the amount of fees.  . . .  However, in this case, the attorneys’ fees and costs were not awarded pursuant to a statute but were instead awarded pursuant to the fee-shifting provision in the Consulting Agreement.”  The fee provision “was broad enough to encompass the award of fees and costs for litigating the amount of attorneys’ fees.”  The appeals court declined to rewrite the contract to relieve TPI of its obligation.

The court also rejected TPI’s argument that Hahn was not entitled to prevailing party fees “because Antaramian improperly paid expert witness fees to fact witnesses.”  Antaramian paid more than the statutory $5 per day to fact witnesses.  Rule 4-3.4(b) does not make it “unethical or illegal for a party to pay fact witnesses reasonable compensation for their preparation for, attendance at, or testimony at trial.”  The Rule does not conflict with F.S. 92.142, regarding the state’s payment to witnesses.  “The statute restricts payments to witnesses for their attendance and thus presumably their actual testimony at trial.  But the rule addresses payments for entirely different and compensable items: witnesses’ expenses incurred in connection with their attendance and testimony at trial and reasonable compensation for the time spent by the witnesses in preparing for, attending, and testifying at trial so long as the payments are not conditioned on the content of the witnesses’ testimony.  Thus we interpret the rule to mean that witnesses may be compensated not only for travel related expenses, such as airfare, car rentals, and hotel expenses, but also for a witness's time spent in responding to discovery and appearing at depositions.”  (Footnote omitted.)

The court certified the following question to the Florida Supreme Court as one of great public importance:  “Does Rule 4-.34(b) of the Rules Regulating The Florida Bar permit a party to pay a fact witness for the witness’s assistance with case and discovery preparation?”   Trial Practices, Inc. v. Hahn Loeser & Parks, LLP, __ So.3d __ (Fla. 2d DCA, Nos. 2D13-6051, 2D14-86, 10/25/2017) (on clarification), 2017 WL 479894

Hat tip! (Mike Frisch)

October 30, 2017 in Current Affairs, Ethics, Interviewing, Law & Society | Permalink | Comments (0)

Friday, October 27, 2017

The Sleeping Jurors

The Massachusetts Supreme Judicial Court held that a defendant met his burden of showing that the judge's response to reports of sleeping jurors was arbitrary or unreasonable

Villalobos has met his burden. Indeed, this case is much like McGhee, in which we determined that the judge's failure to intervene gave rise to "serious doubt that the defendant received the fair trial to which he [was] constitutionally entitled." McGhee, 470 Mass. at 645, quoting Commonwealth v. Braun, 74 Mass. App. Ct. 904, 906 (2009). As the Appeals Court explained, during Villalobos's trial, the prosecutor reported one day that one juror "had fallen asleep 'several times' during the testimony," and the next day, that a different juror "was sound asleep during the cross-examinations." Villalobos, 89 Mass. App. Ct. 435-436. The judge, who did not have the benefit of McGhee, did not give any indication that he doubted the reliability of the prosecutor's reports, yet he did not question the jurors to determine whether they had in fact fallen asleep and, if so, what portions of the evidence they might have missed. Instead, the judge simply observed each juror for the rest of the day. Id. Similarly, in McGhee, supra at 642-645, one juror reported that another juror had fallen "sound asleep" and was even snoring, but the trial judge declined to take action.

Moreover, like in McGhee, the trial judge appears to have been under the mistaken impression that he could not intervene unless he personally observed a juror sleeping...

The Commonwealth argues that the sleeping jurors missed minimal and relatively inconsequential portions of the testimony. Based on only the record before us, however, we cannot be sure that this is true. The purpose of a voir dire is to investigate the report that one or more jurors were sleeping and to determine what, if anything, the sleeping jurors missed. Because the judge did not conduct a voir dire, we do not have these essential findings.

The conviction was for a lesser charged offense of involuntary manslaughter. (Mike Frisch)

October 27, 2017 in Current Affairs | Permalink | Comments (0)