New York Injury Attorney Blog

U.S. Court of Appeals for the Sixth Circuit: Phelps-Roper v. Strickland

Here’s the good news: Common decency still has a recongnized place in America, notwithstanding indicators to the contrary.

Topeka Kansas-based Westboro Baptist Church cannot protest at funerals in Ohio. These are the lovely people who believe God is punishing America for the sin of homosexuality by killing Americans, including soldiers. These “church” members believe that “protesting at funerals is an effective way to convey the message of their church.” To make them even more effective messengers, their preferred venues are funerals of soldiers where, as we’ve seen on TV, they share such inspirational messages as “God Hates Fags,” “Thank God for Dead Soldiers” and “Thank God for 9/11.”

Ohio law proscribes protests at funerals. It’s been the law since 1957 with two amendments since. The original law regulated picketing at funerals and funeral processions. The amendments put time limits on protests (from one hour before to one hour after the funeral), specified a 300 foot buffer zone for permitted protests and expanded the definition of “protest” to include “other protest activities.”

Plaintiff, the charming Shirley Phelps-Roper, contended that she wanted to protest at Ohio funerals in the future and that the law violated her Constitutional right to free speech. She had been protesting at funerals for quite some time making a name for herself and for her church.

While the District Court struck down that part of the statute that extended the protest prohibition to “funeral processions” (since it created a “floating buffer zone” which was Constitutionally overbroad) it upheld the rest of the law. So too did the Court of Appeals. It found that the Funeral Protest Provision was content-neutral (no one could protest at funerals, not just the loving members of Westboro Baptist); it served an important governmental interest—balancing the First Amendment rights of protestors with the rights of funeral attendees to grieve, memorialize and gather in honor of the deceased, and; the funeral protest provision is narrowly tailored—300 feet away and no protests from one hour before to one hour after. As the court noted, there are other ways for these protestors to get their message out and “Phelps-Roper is not entitled to her best means of communication.”

Here’s the really sick part: Ms. Phelps-Roper “does not claim that funeral protests are [even] her most effective channels of communication” or that “mourners at a funeral are...her primary audience.” For her, a “funeral is the occasion of her speech, not its audience.”

Well isn’t that special.

Solidiers die and at the moment of heart-breaking grief and remembrance, Phips-Roper sees her chance for 15 minutes of fame by reviling the dead with hate-filled venomous speech. Pathetic. But still protected. Partly.

Maybe Westboro Baptist would be better off knowing what God loves rather than it claims God hates. After all, the Bible says we should “comfort all who mourn,” and that those who do so will be called “oaks of righteousness.” Those who do what Phelps-Roper and her “church” do are more like poison oak. And if they really believe what's written in the Bible, they will have to answer for spreading it in the name of God.

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Posted In: Culture War , Homosexuality , It's My Right! , Religion , Speech , Strange but True , U.S. Court of Appeals

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U.S. Court of Appeals for the Fifth Circuit: Oliver v. Quarterman

In New York State, before a witness takes the stand at trial, he either places his hand on a Bible and swears to tell the truth, or, if he objects to swearing, he affirms under penalty of perjury to tell the truth. Then he can take the stand, say whatever he wants, and be cross examined accordingly.

But what happens if that Bible ends up in the jury room when deliberations are under way? The Oliver decision is a must read for anyone interested in the relationship between the Bible and the gavel. Khristian Oliver was tried for murder in Texas: Joe Collins came home to discover Mr. Oliver burglarizing his home. Oliver then shot Mr. Collins and while he lay mortally wounded on the ground, struck him several times in the head with a rifle butt, killing him. After a trial, Oliver was convicted of capital murder and sentenced to death.

Mr. Oliver appealed. He claimed that there were at least four Bibles in the jury room and that one juror read a Bible aloud to a small group of other jurors, thereby influencing their deliberations. A number of passages were read, but this one from the book of Numbers gave rise to his appeal: “And if he smite him with an instrument of iron, so that he die, he is a murderer: the murderer shall surely be put to death.” This hit too close to home for Mr. Oliver. Given the Bible's authority among some folks, and that it is not evidence or the law of Texas, Oliver argued for a new trial. The state court entertained his complaint and held hearings, but concluded that the jury did not act improperly. Although some jurors had looked at the Bible, the court held that the jury was not affected “by any outside influence” and had rendered its verdict in accord with court’s instructions and the evidence presented.

After exhausting his state court appeals, the defendant sought a writ of habeas corpus from the US District Court. It was denied. He then took his case to the U.S. Court of Appeals.

Jury tampering occurs when a jury is influenced by any means except evidence presented in open court. Anything not presented in court is an external influence and is generally not permitted. Was the Bible, particularly the reading of the damning passage that mandates death for a person who kills someone by striking him with iron (as defendant Oliver did) an external influence on the jury? According to the Fifth Circuit Court of Appeals, it was both an external influence and Constitutional error: “[T]he jury’s use of the Bible here amounts to a type of ‘private communication, contact, or tampering’ that is outside the evidence and law...” Of course this begs a number of questions, not the least of which is: A type of private communication or contact with whom?

Putting aside that question for the moment, the court, in fact, accepted Oliver's argument. But did it matter?

Because this was a habeas petition, the Federal court had to determine if the Bible’s external influence was harmless error, which in these proceedings meant whether it had “a substantial and injurious effect or influence in determining the jury’s verdict.” Since the Texas courts already held hearings on this question and decided the jury was not influenced by the Bible or the passages read, the U.S. Appeals Court ruled that the accused “failed to rebut the state court’s factual finding that the Bible did not prejudice the jury’s decision.” Accordingly, Oliver's writ of habeas corpus was denied again.

For now, the verdict stands.

Maybe there are other avenues of appeal for Mr. Oliver, and maybe he will get the last laugh, but the Bible also says “The wicked plot against the righteous...but the Lord laughs...because he knows their day is coming.” For Mr. Oliver, this is no laughing matter. Maybe he would be best served appealing his judgment pro se by seeking his own private communication and contact before that day arrives.

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Posted In: Crime and Punishment , Culture War , Habeas Corpus , Other State Courts , Religion , U.S. Court of Appeals

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U.S. Court of Appeals for the Second Circuit: In Re Terrorist Attacks on September 11, 2001

Fifteen of the nineteen terrorists involved in the 911 attacks were Saudis. Why not sue the Kingdom of Saudi Arabia and various other seemingly responsible parties (including four Saudi Princes, a Saudi Banker and the Saudi High Commission) for their support role in the attacks? After all, investigations by our government and by non-governmental entities revealed that most of the terrorists were from the Kingdom of Saudi Arabia and that the defendants provided financial support to al Queda through various channels. The plaintiffs are those who incurred losses in the September 11th attacks. They alleged that Islamic charities under the control of, and funded by, the defendants played an instrumental role in the development of al Queda and the fulfillment of its objectives.

One of the great things about the American justice system is access to the courts. Private citizens and their attorneys have been able to bring actions in court seeking remedies for similar wrongs (Libya was sued for the hijacking and murders aboard Pan Am Flight 73 in 1986, and for the destruction of Pan Am Flight 103 over Lockerbie Scotland which killed all 270 people on board; Swiss banks were sued for corroborating with Nazis and laundering Nazi wealth taken from Jews who died in the Holocaust). Well, what about suing those behind the World Trade Center attacks?

Great idea. Only one problem: The Foreign Sovereign Immunities Act (FSIA) “grants foreign sovereigns immunity from suit in the United States” subject to some limited exceptions, which include torts (car accidents, negligence or injury caused by their representatives) and commercial activity (when the government acts like an individual involved in trade or commerce).

The other exception is created when the US Government designates a foreign government a “state sponsor of terrorism.” When that occurs, there is a private right of action to sue the foreign government. That’s what happened here. Except the State Department did NOT designate Saudi Arabia a state sponsor of terrorism.

No designation, no day in court.

Whether all the defendants in this action are agents or servants of the Saudi Kingdom and actually did what the plaintiffs claimed, the victims of 911 have no right to sue the Saudis under the state sponsor of terrorism exception. And their fall-back positions—that the acts of flying planes into the World Trade Center fit under the tort or commercial activity exceptions—were unconvincing. This was terrorism, and that was the only exception available to the plaintiffs.

The Court summed up the limits of our individual right to sue foreign powers this way:
"Although the FSIA did open an avenue of redress for certain individual victims of state-sponsored terrorism, it did not delegate to the victims, their counsel and the courts the responsibility of the executive branch to make America’s foreign policy response to acts of terrorism committed by a foreign state, including whether federal courts may entertain a victim’s claim for damages." The case was dismissed.

Maybe this is the rare instance where we wish lawyers had more power than they already have.

September 11th may not have been brought to us by any recognized state-sponsored terrorists, but it sure looks like it was. The "state-sponsored" loophole is as big as Ground Zero and leaves one wondering why the attorneys' hands are tied while the terrorists funded by "non-state" sponsors reach all the way into NYC, DC and the skies above Pennsylvania without ever having to answer in court for their actions.

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Posted In: Crime and Punishment , Damages , Injuries , Politics , U.S. Court of Appeals , War on Terror

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New Jersey Supreme Court: Culter v. Dorn

As they say in Jersey, “You talkin' to me?”

That question had to be in Jason Culter’s mind every time he heard comments in the office about “those dirty Jews.” Every time he was referred to as “the Jew.” Every time he was asked by his boss “where [his] big Jew… nose was?” And the time his coworker suggested that we should “get rid of all those dirty Jews.”

And what if all those folks making the comments were armed. Do you call the police?

You don’t if you’re a cop.

And you don’t if the people making the comments were also cops and coworkers.

This was the work environment at the Haddonfield New Jersey Police Department. Not exactly Jersey’s Finest.

Culter was reluctant to make waves and thought he was thick-skinned enough to ignore it all, but a few threatening incidents and comments too many put him over the top. He brought an action under New Jersey’s Law Against Discrimination (LAD) claiming he was subjected to a hostile work environment because he was Jewish. In its defense, the police department claimed Culter was a willing participant in all the fun and that it was all just harmless police department chop busting. The judges were not amused and seemed not to get the joke.

According to the court, “The LAD’s promise of a discrimination-free workplace” extends to matters of faith. “Antagonistic, degrading, or demeaning conduct in the workplace that is directed at or about one’s religious faith, or ancestry, can be discriminatory and can amount to an unlawful hostile environment.” The Haddenfiled precinct was such a place.

The court found that Culter met the threshold for demonstrating a religion-based discriminatory work environment. It also found that the standard of proof to demonstrate a religion-based hostile environment was no different than what was required to show a sexually or racially-based hostile workplace. Hatred and job-related abuse of authority come in all shapes and sizes, but it’s all equally unacceptable.

Given the times we live in, one has to wonder what the members of the Haddonfield Police Department were thinking. Or does anti-Semitism make you both reckless and clueless. These cops would have been better off if they followed there own advice and remained silent. After all, the original “Miranda” warning comes from an old Jewish book (Proverbs 17:28) which says this: “Even a fool is thought wise if he keeps silent, and discerning if he holds his tongue.” Alas, such was not the case here, and before the New Jersey Supreme Court, the Haddonfield Police Department didn’t have a prayer.

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Posted In: Employment Discrimination , Injuries , Other State Courts , Religion , Speech

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U.S. District Court for the Southern District of New York: Casillas v. Daines

It’s only money, except when you’re looking for Medicaid to pay for gender reassignment, or what was previously known as a sex-change operation. Without the state’s cash, Terri Casillas could not obtain the operation "she" claimed she needed. The state refused to pay. The court refused to make the state pay.

Ms. Casillas was born male but identified as a woman from age 16 and lived as one from the time she was 20. When she was about 28, she was diagnosed with Gender Identity Disorder (GID or transsexualism), a form of depression “defined by strong, persistent feelings of identification with the opposite gender and discomfort with one's own assigned sex” (hence the need for gender reassignment). For twenty-four years Ms. Casillas underwent hormone therapy courtesy of Medicaid, which caused her to develop breasts and a “more traditionally female body.” When Medicaid funding ended, the plaintiff paid her own way. When she could no longer afford it, therapy stopped and Ms. Casillas “began to exhibit male characteristics.” This was the point of no return for Ms. Casillas, so she sued the New York State Department of Health to make them pick up the tab for the ultimate remedy: gender reassignment, i.e.,“vaginoplasty (removal of the penis and creation of a vagina) with orchiectomy (removal of the testes).”

It turns out there is a 1997 Department of Health regulation which restricts Medicaid payments for gender reassignment. Ms. Casillas claimed this limitation violated her federal right to obtain such a procedure, which was guaranteed under federal statutes and the US Constitution. The court disagreed. It found that the state can limit medical services based on criteria such as “medical necessity” or “utilization control” (control over the distribution of limited resources through Medicaid). Moreover, if the state had a valid medical reason not to cover such procedures, it didn’t have to. The state identified numerous concerns about gender reassignment, including that “serious complications” could result from such surgery and that the long-term effects of the lifetime hormone therapy that would be required were unknown. Accordingly, the state’s refusal to pay was neither irrational, discriminatory nor a violation of Ms. Casilla’s statutory or Constitutional rights.

In this age of breakthrough medical technology where there are procedures from butt, breast and calf implants, to male sexual enhancement or labiaplasty (look it up!), to cryogenics, the court seemed to recognize that valid lines need to be drawn with respect to state-funded health care and that Medicaid cannot pick up the tab for every medical procedure available. You can’t always get what you want under Medicaid, but you can get what you need.

Finally, Ms. Casillas argued that what she wanted removed surgically was akin to a mastectomy, where a breast is removed because of a medical condition affecting the body part. As she saw it, GID similarly affected a body part (by causing her depression and discomfort) and the surgery should be approved. Since the state pays for one procedure, it should pay for the other and the offending part should be taken off courtesy of Medicaid.

That argument did not cut it, according to the court. And neither would Medicaid.

The case was dismissed.

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Posted In: Culture War , Damages , It's My Right! , U.S. District Court

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U.S. Circuit Court of Appeals for the Eleventh Circuit: Frazier v.Winn

In the 70's TV show Welcome Back Kotter, Juan Epstein always had a note for his teacher. And every note was “signed Epstein’s Mother.” That won’t cut it in Florida public Schools where the state Pledge Law requires public school students from K to 12 to recite the pledge at the beginning of each day. The only way to be excused from this obligation is by an authentic written request from the student’s parent. Once you submit a note, you can exercise your right to remain silent during the pledge, but the law still requires you to respectfully stand at attention.

Cameron Frazier thought he was old enough to take a stand on sitting out the pledge. The high-school junior challenged the statute claiming the Pledge Law violated his First Amendment rights. The court’s answer to his objection was basically “Sit Down!”

Mr. Fraizier claimed the statute “robbed him of his right to make an independent decision.” The court disagreed. While it overturned that part of the statute that requires students to stand if they opted out of the pledge (the constitutional right to sit during the pledge was long ago established), it determined that the Pledge Law is “largely a parental-rights statute.” Accordingly, it concluded that “the State’s interest in recognizing and protecting the rights of parents on some educational issues is sufficient to justify the restriction of some students’ freedom of speech.” The only way out of the pledge for Cameron Frazier was a real note, signed Frazier’s mother.

Depending how you score this, it’s either one against the rights of free speech, or one for the rights of parents. Funny how age and circumstance can affect your view of what is and isn’t constitutional. Now if only the courts would rule on our children's right to opt out of cleaning their rooms or taking out the garbage...

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Posted In: Culture War , It's My Right! , Speech

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U.S. Court of Appeals for the Fifth Circuit: Lawrence R. Poliner, MD V. Texas Health Systems

For years there’s been a national debate about the impact of medical malpractice actions: Should damage awards be capped? Are lawsuits putting doctors out of business? Should juries even have the right to decide if a doctor committed malpractice? Or should doctors receive preferential treatment in our legal system so they can practice medicine without thinking about malpractice actions?

Freeing doctors from potential lawsuits might sound good in theory, but it raises some serious questions about how safe we would be as potential patients.

The Fifth Circuit had to deal with a variation on this question: Can Peer Review Committees (hospital committees made up of doctors who evaluate less-than-optimal care by other doctors at the hospital) be sued for money damages based on their findings? Dr. Poliner was reviewed by such a committee. His medical judgment treating a number of patients had been previously questioned and criticized. His treatment of “patient 36” caused a peer review committee to temporarily restrict his hospital privileges. That decision went down like Castor oil. Doctor Poliner sued the hospital for defamation, intentional infliction of emotional distress and various contract claims.

A trial jury sided with the aggrieved doctor. It awarded him over $200 million in damages. The verdict was subsequently reduced to $33 million by the judge. The Fifth Circuit Court Appeals reversed and ruled in favor of the defendants. It held that under federal law, peer reviewers had immunity and could not be sued by the doctor. More importantly, it found “That the ad hoc committee concluded that Poliner gave substandard care in half of the cases reviewed, and considering the seriousness of the diagnostic error with Patient 36... Defendants were fully warranted in concluding that failing to impose further temporary restrictions ‘may result’ in an imminent danger.”

Back to the first point: There’s been a lot of debate about malpractice cases. Now we know that hospitals have an absolute right to review their doctors and take action. Good. They should. Like the court said, robust peer review helps root out incompetent physicians, protects patients and prevents malpractice. But what about the cases they review when there's “substandard care” and they don’t take action against a doctor? The next patient may well be at serious risk, and someone other than the patient is willing to take it.

That unknowing patient at potential risk could be any of us. If we get injured (and medical mistakes can cause very big injuries), we don’t have the right to fire the doctor or restrict his practice. What we have is the right to bring a medical malpractice action. Take that away and we’re left to what peer reviewers do or don’t do when they’re confronted with substandard care by one of their own.

Sounds like a prescription for trouble.

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Posted In: Damages , Medical Malpractice , U.S. Court of Appeals

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U.S. District Court for the Northern District of California: Michael Savage v. Council on American-Islamic Relations, Inc. et. al.

The Savage Nation is Dr. Michael Savage. The Bronx-born broadcaster has one of the most popular radio talk shows in the country. His brand of libertarianism and conservatism are dished up in flaming doses of Truth-Gone-Wild. Some would call his advocacy the scorched-earth approach; others would say he wields facts like a bludgeon without regard to consequences or sensibilities. Whatever your view, he is no wallflower and no stranger to controversy. He infuriates, elucidates and inundates all at once.

After railing against Islamic extremism, Mahmoud Ahmadinejad and certain aspects of the Koran, efforts were made by the Council on American-Islamic Relations (CAIR) to boycott his show and have him removed from the air. Moreover, CAIR aired excerpts from Savage Nation broadcasts on its website to rally opposition to his program. Savage would have none of it. He filed suit against CARE for racketeering and for copyright infringement.

Unfortunately for the good doctor, “fair use” allows critics to appropriate portions of his speech to make their point. Such use is not copyright infringement. As for Savage’s racketeering claim—that CAIR is not a civil rights group at all, but a political organization and front for terrorist groups—the court found the pleadings insufficient to support the claim and dismissed with leave for Savage to re-plead and try again.

Has CARE been unfairly maligned? Has Savage? Has a raw nerve been struck? Or is it Truth that’s taking a beating? When it comes to debates involving terrorism, free speech, talk radio, Islam and the right to criticize, Truth is the first victim. Truth is always the first victim in important debates, whether they’re about abortion, global warming or the war on terror. Thankfully, Truth is also the last thing standing when all is said and done and the fog of battle lifts.

Savage battles over Truth are good for the nation. They draw us into the controversy, make us examine the facts and choose sides by reaching our own conclusions. That’s the privilege and responsibility of citizens who live in a free society. That, and serving jury duty.

And that’s the Truth.

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Posted In: Culture War , Religion , Speech , Terrorism , U.S. District Court , War on Terror

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New York Supreme Court: Smith v. Walsh-Smith

It's a brave new world and YouTube is at the cutting edge. From the same computer you download directions or songs for your iPod, you can upload and stream videos to a worldwide audience. Now that's power! And possible trouble. Tricia Walsh-Smith is a case in point.

Tricia married Philip Smith, a man 25 years her senior. Philip started out as a theater usher and ended up president of the Shubert Organization, "the largest theater owner and operator in the United States." Notwithstanding his success, Mr. Smith is a very private man. Apparently, Mrs. Walsh-Smith had issues about the terms of their prenuptial agreement and about her husband's unwillingness to invest $250,000 in her theatrical production. Without his money, the show would not go on. These issues ripened into heated arguments, flying crockery and threats by the missus to malign Mr. Smith in the New York Post. True to her word, the Post got the dirt on Mr. S. As a result, he filed for divorce on the grounds of cruel and inhuman treatment.

She sued him back. She also availed herself to some self-help. Not satisfied that she was mustering the necessary leverage to obtain a favorable outcome or an out-of-court settlement to her liking, the angry wife took her beef to the internet. Having come to appreciate the value of a good production, she brought a film crew into the marital apartment, added music and subtitles, and trashed her husband on video. She then posted it on YouTube, which turned out to be her big break. The video was an "overnight sensation" and has been viewed more than three million times.

Fame has its cost, however. It is no easy task to prove cruel and inhuman treatment in divorce court, but Mrs. Walsh-Smith's internet histrionics gave Mr. Smith all the proof he needed. As the court stated, "He has been publically humiliated and embarrassed to an unprecedented extent." Mrs. Walsh-Smith claimed "she had no other option" because of her finances. The judge was not moved, noting that other spouses have been similarly challenged without resorting to the internet, and concluded that "it is hard to say defendant had no other choice when no one else before her had ever exercised that choice." Accordingly, the court granted Mr. Smith his divorce. As for Mrs. Smith, she might have gone where no woman has gone before, but she owes YouTube the credit for the outcome in her divorce.

YouTube is power: Become famous (or infamous) overnight. Jump start a career. Or attack your enemies (or your spouse) on a global scale from the convenience of your home. It might seem like a handy tool to advance your interests, but we are learning it comes with responsibilities. You can't use the internet as a weapon to humiliate or embarrass people with impunity. (In an unrelated but similar case, a Florida judge required two teens who had thrown a large drink at the drive-thru cashier—an activity its purveyors call "fire in the hole"—to post a groveling apology on YouTube after they first posted their own home-made video of their mean-spirited carbonated assault.) We'll see what new and inspiring or insipid ways the internet will be used tomorrow, and just how creative the courts will have to become to deal with it.

Until then, post at your own risk.

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Posted In: Brave New World , Damages , New York State Courts , Speech , The Internet

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Wisconsin Supreme Court: State of Wisconsin v. Grunke et. al.

We live in strange times. Really strange times.

These are the undisputed facts: “Nicholas Grunke sought and received the consent of his twin brother, Alexander Grunke, and his friend, Dustin Radke, to help him disinter a female corpse located in a Cassville, Wisconsin cemetery so that the three of them could transfer the corpse to another location where Nicholas planned to have sexual intercourse with it. Apparently, Nicholas conceived this plan after seeing the obituary of the victim in a newspaper.” The defendants went to the cemetery “with shovels, a crowbar, a tarpaulin, and a box of condoms,” dug a hole deep and long enough to uncover the top of the victim's concrete vault but ran into technical problems gaining access. They were subsequently discovered, arrested and charged with Attempted Sexual Assault before any act could be consummated.

In Wisconsin, a person is guilty of Third Degree Sexual Assault when he “has sexual intercourse with a person without the consent of that person...” What about attempted sex with a dead person? Do you have to prove lack of consent? Or is the silence of the dead presumed to be lack of consent, as one might think—if one wasn’t a lawyer.

At the trial level, the circuit court did not permit the charge of Attempted Third Degree Sexual Assault to go forward. It concluded that the sexual assault statute did not apply to circumstances in which the victim is deceased due to no act of the accused (the implications of this reasoning are too frightening to contemplate).

Wisconsin’s Court of Appeals affirmed. It also explored the sexual assault statute and its ambiguity with respect to the issue of consent.

In a moment of moral conviction and clarity of purpose, the Wisconsin Supreme Court concluded that lack of consent is a matter of simple proof when the victim is a corpse, no matter who was responsible for the death. Moreover, as most of us already know, the court found that “A reasonably well-informed person would understand the statute to prohibit sexual intercourse with a dead person.” One would hope.

What’s truly remarkable is that it took three courts entertaining all sorts of arguments to arrive at this conclusion. Just goes to show that judges and lawyers can debate anything to death. But for the moment, it’s good to know the Wisconsin Supreme Court has drawn a line in the dirt when it comes to sex with the dead.

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Posted In: Crime and Punishment , Other State Courts , Strange but True

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Texas Supreme Court: Pleasant Glade Assembly of God v. Schubert

If you believe in Jesus, you’ve come to understand him from the New Testament. Well, the same scriptures that teach about Jesus also teach about demons and the laying on of hands by church elders. If you accept Jesus, then consistency demands that you accept the other things the Bible teaches. Or does it?

17 year old Laura Shubert attended the Pleasant Glade Assembly of God Church. In fact, her own father was an Assembly of God pastor and missionary. The Assemblies of God is a Pentecostal denomination. It “believes in the literal teachings of the Bible with respect to spirits, demons, demon possession and the ‘casting out’ of demons.” It also believes that people can be “slain in the spirit,” which, according to the church, “is a positive experience in which the holy spirit comes over a person and influences them.” The Bible refers to this as being “filled with the spirit” and believers are encouraged to be filled with the spirit again and again.

Laura Shubert had such an experience. In fact, she had it twice in a matter of days. While slain in the spirit the second time, however, Laura’s physical reaction was so significant that the senior pastor was summoned. He laid hands on Laura and prayed for her. Because of the animated way Laura was reacting, she suffered carpet burns, a scrape on her back and minor bruises.

Laura’s experience led to a meeting between her father, Pastor Shubert, and Pastor McCutchen, the one who had laid hands on Laura. A theological discussion ensued and both agreed that Christians cannot be demon possessed (there was apparently a question whether Laura was manifesting the Holy Spirit or was being tormented by an evil spirit). As a result of that meeting, the church agreed to teach more on the subject so its young members would better understand what the Bible says about being filled with the spirit and what it says about demons.

Notwithstanding the theological explanations given, Laura subsequently became depressed, dropped out of school and abandoned her plan to attend Bible College. She was finally diagnosed with post-traumatic stress disorder, and she and her parents blamed the church and sued Pleasant Glade for the injuries and emotional distress she suffered. (There apparently was not much debate about the Bible’s proscription about believers suing fellow believers.)

Laura won at trial. A jury awarded her damages of $300,000 for pain and suffering and other losses. The Court of Appeals in Texas affirmed most of the decision, but the Texas Supreme Court reversed it all.

Laura’s experience, good, bad or otherwise, was not a matter for the courts. As the Supreme Court explained, “Whether the defendants had intentionally or negligently misapplied church doctrine to Laura during these events was not a justiciable controversy...because the ‘First Amendment [gave] Pleasant Glade the right to engage in driving out demons.’”

The court also found that “The ‘laying of hands’ and the presence of demons are part of the church’s belief system and accepted as such by its adherents. These practices are not normally dangerous or unusual and apparently arise in the church with some regularity. They are thus to be expected and are accepted by those in the church. That a particular member may find the practice emotionally disturbing and non-consensual when applied to her does not transform the dispute into a secular matter.”

Laura’s case was dismissed.

The courts have always struggled to balance religious expression and individual rights. In this case, whatever happened “in the spirit” was clearly not the court’s business. But this sort of controversy is not going away. The Bible does more than explore spiritual matters, it judges certain matters of the flesh, including lust, homosexuality, pride and adultery; it is only a matter of time before the words of the Bible are challenged as so offensive they must be silenced. Another, less constrained court, may agree and choose to step into the fray.

God help us.

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Posted In: Damages , Injuries , Other State Courts , Religion , Strange but True

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U.S. Court of Appeals for the First Circuit: Stamp v. Metroplitan Life Ins. Co.

If you get so drunk—3 times the legal limit—that you crash your car into a tree and die as a result, does your family collect from your accidental death and dismemberment life insurance policy? Affirming the Rhode Island District Court, the First Circuit Court of Appeals says your family does not collect anything. The policy in question did not clearly define what an “accident” was, so the court had to: It concluded that Mr. Stamp was “so highly intoxicated that his death was not an ‘accident.’” It went on to find that when you are behind the wheel this drunk, you should “objectively and reasonably” expect to die or be seriously injured.

The dissent saw it differently, finding that Mr. Stamp did not set out to kill himself and that the circumstances of his death were no more than a “fatal mistake.” Under the circumstances, his wife should have collected from the insurance policy.

Fatal mistakes cannot be undone. Think twice before you get behind the wheel drunk. You may kill yourself and your family’s chances of surviving without you.

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Posted In: Auto Accidents , Drunk Driving , Injuries , U.S. Court of Appeals , Wrongful Death

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