New York Injury Attorney Blog

Supreme Court of Ohio: City of Barberton v. Jenny

Maybe he wasn’t traveling faster than a speeding bullet, but defendant Mark Jenny was driving fast enough to catch the eye of Officer Santimarino. The question the court had to resolve: Was catching a speeder with your eyes enough to convict?

Officer Santimarino was with the Copley Police Department for 13 years. He was certified by the Ohio Peace Officer Training Academy, where he was trained to visually estimate vehicle speeds. In fact, to become certified, he had to show that he could estimate a vehicle’s speed “to within three to four miles per hour of the actual speed.”

PO Santimarino eyeballed Jenny at 70 mph in a 60.

He was also operating a radar gun at the time. He clocked Jenny at 82.

So much for estimating “within three to four miles per hour.”

He issued Jenny a citation for doing 79.

So much for modern math.

(In fairness to the cop, he testified he was doing Jenny a favor by reducing the speed on the citation so he wouldn’t have to make a personal appearance in court.)

At trial, Officer Santimarino could not produce a copy of his radar training certificate. That meant the radar results were precluded and that the only evidence in support of the speeding ticket was the visual observation of Jenny’s speed.

Jenny moved to dismiss arguing that the city failed to meet its burden of proof—or more accurately, that it had no proof of speeding at all. The lower court dismissed Jenny’s motion and found him guilty based only on the cop’s estimate of speed (which the court reduced to 70 mph on the citation since the speeding was now "clocked" at 70 mph by the only admissible evidence). That the court was aware of the radar result gave it confidence to convict, but it had no influence on its decision (wink, wink!). Punishment: a $50 fine plus costs.

Jenny appealed.

The court of appeals held that the state could not use the radar as proof of speed because there was no certification produced but that hearing about the radar reading was harmless error. There was still “sufficient” proof if a trained law man knew Jenny was speeding by seeing him do so. Conviction upheld.

Jenny appealed again.

Ohio's highest court resolved conflicting state court decisions without batting an eye:

We hold that a police officer’s unaided visual estimation of a vehicle’s speed, by itself, is sufficient to support a conviction for violation of R.C. 4511.21 (D) without independent verification of the vehicles speed if the officer is trained, is certified by the Ohio Peace Officer Training Academy or a similar organization…and is experienced in visually estimating vehicle speed.

For Jenny, not the blind justice he was hoping for.

This gives new meaning to the phrase “I’ll see you in court.”

Keep an eye on this trend. It may put a lid on your ability to ever meaningfully challenge a speeding ticket.

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Posted In: Brave New World , Crime and Punishment , Evidence , Other State Courts

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New York Appellate Division, Second Department: DeChico v. Northern Westchester Hospital Center et. al.

Gianluca DeChico was born with schizencephaly, “a rare and sever congenital brain defect.” On her own behalf and on behalf of her child, Gianluco’s mother sued all involved with her prenatal care for the “extraordinary costs of the child’s medical care,” basing her case on the failure of her health care providers 1) to fully explain the implications of prenatal sonograms showing a ventricle defect on one side of the baby’s brain, 2) to conduct further tests, and 3) to fully advise mom about the abortion option.

Defendants moved to dismiss. The lower court denied their motion for summary judgment. Defendants appealed.

The Appellate Division reversed and dismissed the case against movants. As the court observed, “It is well settled that no cause of action may be maintained on behalf of an infant plaintiff for wrongful life, ‘i.e., that he or she would never have been born but for the negligence of the defendant…” Accordingly, that part of the child’s action which sounded in wrongful had to be dismissed. A child cannot sue for being born, no matter what his condition. The child can, however, sue for injuries or conditions caused as a result of medical negligence. In this case, however, based on the time line and the allegations made, “any negligence on the part of the defendants did not proximately cause the complained-of damages.”

While the court would not recognize the child’s claim for wrongful life, it acknowledged a cause of action on the mother’s behalf for the costs to be incurred in raising a child with a disability (wrongful expenses rather than wrongful life). In order to prevail on such a claim, mom had to prove a duty owed, breach of that duty, and that the breach caused the injuries, i.e., she had to show medical negligence (malpractice) which deprived her of the opportunity to avoid incurring such expenses. Mom’s argument was that those expenses would have been avoided by an abortion. But even this argument had it limitations. According to the court, she had to show that the doctors denied her the opportunity to terminate her pregnancy “within the legally permissible time period or that the child would not have been conceived but for the defendants’ malpractice.” That, she could not do.

Nothing the doctors did caused the condition. No other tests would have changed the outcome. And the advice given was sufficient, particularly in light of New York’s Criminal Code. As the court observed:

It is undisputed that at the time of the April 21, 2004, ultrasound, the gestation period was 27 weeks and six days, plus or minus 18 days (i.e. at least 25 weeks). Pursuant to Penal Law § 125.05, it is unlawful for a physician, pregnant woman, or other person to terminate a pregnancy after the twenty-fourth week of gestation, unless necessary to preserve the life of the mother.

Given when the condition was discovered, how far along the pregnancy was and the proscriptions of New York’s abortion law, “any negligence by the defendants in connection with treatment, testing, or advice after the April 21, 2004 ultrasound cannot be said to have proximately caused the complained-of injuries, namely, the continuation of the pregnancy and birth of the child.” Movant’s did what they had to do. They did not have to send mom out of state for an abortion or even tell her late term abortions were available elsewhere. They are judged by the standard of care in New York where abortion was not an option this late in the pregnancy and doctors could not be faulted for failing to circumvent New York’s legislative constraints by sending mom elsewhere.

Sometimes life can be cruel and the negligence of others can cause grievous injury. Other times life can be cruel and mysterious: bad things just seem to happen. In the latter case, the courts are grossly inadequate to unravel the mystery and set things right. Perhaps the biblical writers of old said it best and offer the only solace available:

As you do not know the path of the wind,
or how the body is formed in a mother's womb,
so you cannot understand the work of God,
the Maker of all things.

Ecclesiastes 11:5

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Posted In: Damages , Medical Malpractice , New York State Courts

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US District Court, Eastern District of Michigan, Southern District: CAIR v. Judge William Callahan

Is this a blow against Muslim freedom of religion or not? You decide. The District Court upheld Wayne County Judge William Callahan’s declaration to hijab-wearing plaintiff Raneen Albaghdady, “No hats allowed in the courtroom.”

When told her headwear was not permitted, Ms. Albaghdady responded, “Okay. It doesn’t matter,” and removed the hijab. Her name change application then proceeded to decision (unfavorable, it turns out, because she filed without meeting the residency requirement), to be followed by a successful reapplication some time later.

The guardians of all things Islam, the Council on American-Islamic Relations (CAIR), apparently heard about Judge Callahan’s ethnic and religious insensitivity and filed this action “seeking a ‘declaration that the customary practice of … Callahan, in requiring Muslim women to remove their hijab violated’ Albaghdady’s ‘fundamental right to freely practice her religion’ in violation of the First Amendment.”

Judge Callahan moved for summary judgment. The court granted the motion and dismissed CAIR’s action. Blogs began to report this as another encroachment on Islamic freedom of religion. The decision will actually have the exact opposite effect. Albaghdady’s problem was not her religion, but apparently how she viewed the head cover. As she put it, it didn't matter. So she took it off. According to the District Court, if it didn't matter in the lower court, it couldn't matter later when she decided to sue in Federal Court.

CAIR claimed that the Judges no-hat policy is unconstitutional because it deprived Albaghdady of her right to exercise her religion and therefore restricted her access to the no-headgear judicial system of which Judge Callahan is a part.

Based on the facts at bar, the District Court could not find an applicable exception to the judicial immunity extended judges in the exercise of their duties. Moreover, the court’s conduct at issue is this case involved controlling dress and demeanor of parties participating in proceedings before the court, clearly the exercise of a duty within Judge Callahan’s juridical capacity.

As for the constitutional issue, plaintiff wanted to know what Judge Callahan knew and when he knew it, insisting he had to be familiar with the religious implications of the hijab because Wayne County is “home to the largest concentration of Arab-American Muslims outside of the Middle East” and the judge had 22 years experience on the bench. The inference was clear: Judge Callahan knew this was no ordinary hat, but was, rather, a religious head covering.

Decent arguments all, except that the exchange between parties was recorded on videotape, and it was clear that removing the hijab for Ms. Albaghdady was no big deal, and not a peep of religious protest was uttered at the time, notwithstanding Ms. Albaghdady’s subsequent claim that she was “terrified and scared” because in America, you just “can't say no to a judge in a court room.”

Based largely on the video, the District Court concluded that “This is not a situation where a government actor required removal of the hijab after the wearer asserted her First Amendment rights. There simply is no evidence that Callahan would have required the removal of a head covering if he had known of its religious significance.”

So does this case encroach on the religious freedom of hijab-wearing Muslim women? (or Muslim women wearing Burqas, Niqabs or Chadors for that matter). Hardly. It just sets out the requirement that they raise a timely religious protest of some sort which will apparently guarantee that they can wear the headgear of their choice to the courtroom of their preference.

Hats off to the court for defending the American way of life.

Or not.

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Posted In: Brave New World , Culture War , Discrimination , Government Negligence , Religion , U.S. District Court

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District of Columbia Court of Appeals: Kelvin L. Martin v. United States

Kelvin Martin was convicted of assaulting US Park Police Officer Ross Dykman after he was halted in traffic because his front seat passenger was drinking from a bottle in a paper bag. After refusing to surrender the bag at the officer’s request, Dykman reached into the vehicle to commandeer the bag and examine the contents himself. Martin’s passenger had other plans, however, and yelled “Go!” to Martin, who, in a flash of bravado and really bad judgment, took off in his Suburban, dragging Officer Dykman along for the getaway as he hung from the open window. During the “wild ride” Dykman drew his service revolver, fired several shots hitting the passenger before he fell from the vehicle. Martin was apprehended shortly thereafter. At trial he and his brown-bagging passenger testified that they thought Dykman was a carjacker, having failed to notice his Park Police uniform, badge, name plate, Park Police patch and police equipment belt.

Apparently, the jury didn’t buy Martin’s defense. He was convicted of assault. Given the facts, Martin needed something more substantive to continue the fight.

Martin had testified in his own behalf. His testimony started on Friday afternoon. So too did the cross examination. At 4:45 court recessed for the day. Before leaving, however, the prosecutor requested an instruction to defendant Martin that he not be permitted to talk to his lawyer about his testimony during the weekend recess. Without objection or argument from Martin’s lawyer, the court directed Martin “not to speak to anyone pending the examination on Monday…” This appeal followed. It challenged as unconstitutional the un-objected-to instruction that prevented him from speaking to his lawyer about his testimony.

The DC Court of Appeals agreed, finding that the instruction (the sequestration order) violated Martin’s Sixth Amendment right to counsel and was plain error. Citing Supreme Court rulings that spoke to the issue, the court held that any order prohibiting a defendant from conferring with his counsel during an overnight break, was a denial of the right to counsel. Moreover, defendant need not show he wanted to speak, planned to speak or even thought about speaking to his attorney—he need only show he was prohibited from doing so. Accordingly, the order was reversible error and the conviction was overturned.

While “sequestration orders are appropriate when directed to ordinary witnesses,” they do not fly when applied to criminal defendants. Kelvin Martin has an absolute right to counsel, and implied therein is an absolute right to speak to his attorney during a substantial recess, even about his own testimony. As the court indicated, “the goal of preventing improper influence or witness ‘coaching,’ which suffices to justify lengthy sequestration orders directed at ordinary witnesses, must be pursued by other means when the witness is the defendant in a criminal trial.”

For prosecutors, “other means” are found in the power of cross examination: If a good cross can’t show that a defendant is changing, tailoring, modifying or finagling his testimony after a court recess, then that prosecutor is in the wrong business.

Given the underlying facts and Martin’s seemingly ridiculous carjacking defense, one would think the government could obtain a conviction without any help from the court. And in truth, it probably would have, only prosecutors are so used to simply asking for and receiving sequestration orders that they never stopped to consider the constitutional implications.

In DC, they will from now on.

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Posted In: Unconstitutional

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New York State Appellate Division, Second Department: McCabe v. Dutchess County

The rule in New York is that a child cannot sue his or her parents for damages resulting from negligent supervision. Kids always have accidents growing up. It’s part of life, not part of litigation. What about suing a foster parent? And suing the Department of Social services for placing you with the foster parent who was in charge when you got hurt?

According to the Second Department, the answer is the same: No can do.

Taylor Harris is the biological mother of 6 year old Jacob Harris. The mom had a drug problem. At birth, Jacob was found to have cocaine, opiates, marijuana and methadone in his urine. The hospital contacted Social Services and the child was placed in foster care with Diane Sherwood, one of the defendants to this action. About 16 months later, while living in the Sherwood home, Jacob climbed out of his “sleeping accommodation onto an adjacent dresser and fell to the floor.” Taylor regained custody soon thereafter and, ever the vigilant mom, commenced this action for money damages on the child’s behalf.

Sherwood and Dutchess County both moved for summary judgment. The lower court denied their motions. Both appealed.

Relying on Holodook v. Spencer, the Court of Appeals decision that held a child could not sue his folks for negligent supervision, the Second Department reversed and dismissed the case. As the high court observed in Holodook, “We can conceive a few, if any, accidental injuries to children which could not have been prevented, or substantially mitigated, by keener parental guidance, broader foresight, closer protection and better example,” but, “[i]f the instant negligent supervision claims were allowed, it would be the rare parent who could not conceivably be called to account in the courts for his conduct towards his child…” Loosely translated: Kids get hurt, even when raised by the most diligent parents. Such accidents are not actionable.

“These same considerations apply to foster parents,” the McCabe court said, and “[w]e decline to impose such a heavy burden on foster parents.” To do so would discourage qualified and much needed individuals from becoming foster parents in the first instance, and would open the door to retaliatory suits brought by disgruntled biological parents or by difficult foster children.

Similarly, the Department of Social Services can hardly be held responsible for the type of accident that can happen in any home, even if it results in serious injury. Only when there's “sufficiently specific knowledge or notice of the dangerous conduct which caused the injury,” can the foster care agency be held liable.

The actions by Ms. Harris were dismissed.

If this had gone the other way, one wonders whether young Jacob Harris could have filed suit against mother Taylor Harris for the drug problem he was born with, the injury which landed him in foster care to begin with. Ms. Taylor may not have thought her course of action all the way through to its logical end, but there might have been some measure of justice had her son obtained a judgment against her.

The victory here goes to common sense. Unmitigated gall takes the loss. And along the way, the court fosters a new appreciation for how difficult it is to raise kids, no matter who's taken on the job.

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Posted In: Damages , Injuries , Minors , New York State Courts , Strange but True

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Superior Court of New Jersey Appellate Division: J.T.’s Tire Service v. United Rentals

There are basically two forms of sexual harassment: The first is quid pro quo sexual harassment, which “occurs when an employer attempts to make an employee’s submission of sexual demands a condition of his or her employment.” The second is hostile work environment sexual harassment, which occurs "when an employer or fellow employees harass an employee because of his or her sex to the point at which the working environment becomes hostile.”

Simply put, the latter form of harassment generally occurs when a woman works among Neanderthal men who have not learned that it is no longer acceptable in the work place to comment about anatomy, grab or grope said anatomical parts or generally act like we still live in the stone age. It’s akin to a mob mentality on a smaller scale and it brings out the worst in men. Just ask Isiah Thomas of the Knicks and Madison Square Garden Chairman James Dolan.

Quid pro quo sexual harassment is of a different nature. It requires no mob, no assists, just a willingness to abuse power or position for sex. It’s not just the lowest form of harassment, it’s the low-life form of harassment. But can it happen when it isn’t the boss hitting on an employee? What about in the market place, when the representative of one business demands sexual favors from the representative of another to close the deal or to maintain their commercial intercourse?

United is a national equipment rental company. Its Piscataway branch manager was Harold Hinkes. Eileen Totorello is the sole shareholder of J.T. Tire Service, a company that was selling tires to United since 1998. In 2005 Hinkes “began pressuring Totorello to have a sexual relationship with him.” She refused. United Piscataway then stopped buying her tires.

Totorello “managed to get the work back” (one wonders what was said), but Hinkes continued to make threats to withhold business if theirs remained a sex-free relationship. Apparently intent on winning, or at least commandeering sexual favors from Ms. Totorello, he used his tired old tire line to make his point, and added a little kissing and groping in case he had been too subtle. When she refused even these creative advances, Hinkes told her she made a “very poor business decision.” Tire purchases then went permanently flat when United stopped buying J.T.’s tires, which by then amounted to sales of $29,000 per month.

J.T. and Ms. Totorello sued. The lower court said there was no case (all’s fair in love and war, and apparently in business), and that this was not the type of harassment contemplated by the Jersey discrimination statute. The Appellate Division disagreed, finding that “The LAD prohibits discriminatory refusals to do business on the basis of sex, by making it unlawful: For any person to refuse to buy from…contract with…or otherwise do business with any other person on the bases of …sex.”

While defendant conceded that the statute prohibited sexual harassment, it argued that it did not prohibit sexual discrimination, and that the former was prohibited only in employment, and either way, this was not the kind of discrimination the LAD contemplated. While United get’s an “A” for chutzpah, it got nowhere with the court, which ruled:

Although the LAD does not specifically mention sexual harassment as a prohibited form of discrimination, it is well-established that ‘[s]exual harassment is a form of sex discrimination that violates both Title VII and the LAD.’

It went on to say the obvious, which unfortunately for alleged low-lifes and Neanderthals, often needs to be said, to wit, “Where, as here, the harassment consists of sexual overtures and unwelcome touching or groping, it is presumed that the conduct was committed because of the victim’s sex.” And since touching and groping made the question easier for the court to resolve, the refusal to buy tires under the above quoted LAD meant that United’s actions through Hinkes was also discriminatory due to her sex. To rule otherwise, to let such behavior continue unfettered, “would stand as a barrier to women’s ability to do business on an equal footing with men.”

It was Lord Acton who said “power corrupts and absolute power corrupts absolutely.” But it’s all relative. Even a little power, like a little knowledge, is a dangerous thing in the wrong hands.

United ended up with a blow out in court for letting Hinkes drive a hard bargain. Maybe now it will remember one of the fundamental reasons to conduct business at arm’s length—it keeps negotiators out of groping and grabbing range.

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Posted In: Brave New World , Discrimination , Employment Discrimination , Other State Courts

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New York State Appellate Division, 3rd Department: Detraglia v. Grant

Cell phones continue to make law. Last month we looked to Ohio where the court concluded it is a crime to destroy the cell phone of someone calling authorities for assistance in an emergency where life or property are at risk. So how does New York view cell phone records after there’s been property damage and injury as a result of an auto accident.

Robert Grant was driving a company car owned by Hawkeye, his employer. His vehicle collided with defendant Detraglia’s car. Stephanie Detraglia, an infant passenger, was injured and brought this action against both drivers. Demand was made that defendants Grant and Hawkeye “produce billing records for all three of Grant’s cellular telephones and the Verizon wireless air card for his company-issued laptop computer for the date of the accident between 12:00 PM and 4:00 PM” (the accident happened at 2:57 PM). Defendants refused to comply. A motion to compel discovery followed.

Although Grant testified at deposition that he wasn’t using his cell phone or lap top at the time of the accident and that the lap top was secure in a bag, the tow truck driver at the scene submitted an affidavit stating that “he saw the laptop on the vehicle’s computer desk, with the screen flipped up and turned on” indicating recent use. That raised enough of an issue for the lower court to order defendants to turn over the records. Grant and Hawkeye appealed.

The Appellate Division agreed with the lower court, finding that “conflicting evidence raised questions as to whether Grant used any technological devices while driving, rendering the records relevant to the question of his negligence.” The court narrowed the window of discovery of such records to 2:30 PM to 3:30 PM and directed that the court do an in camera review first to protect privacy interests. If it turns out Grant was on the phone or on the computer at the time of the accident, he might have to hang up his defense.

Given how easy it is while driving to use a cell phone to text, get or send emails, surf the web, watch videos, and even make phone calls, such technological distractions are as likely to cause an accident as glancing at a map on the passenger seat or speeding through an intersection. Obtaining the details of a driver’s phone use seems fair game when trying to figure out what caused an accident. In fact, given the ubiquitous use of cell phones and the tendency of people to leave out important facts while being questioned under oath, it would seem that discovery of such records should be a matter of routine, denials of use notwithstanding. One suspects phone record discovery in accidents is well on the way to becoming the law of the land.

The Appellate Division's use of in camera inspection to limit intrusion into the individual's phone or lap top stored data and contacts is entirely in keeping with the value we place on our right to privacy. In Ohio v. Smith, an unrelated case decided the same week, that state’s high court ruled that there is a “high expectation of privacy in a cell phone’s content” particularly because they are “capable of storing tremendous amounts of private data.” Under the circumstances, “an officer may not conduct a search of a cell phone’s contents incident to a lawful arrest without first obtaining a warrant.” In Smith’s case, looking at who he called (supposed drug dealers he was negotiating with) at the time of the crime without first obtaining a warrant, and introducing such evidence at the time of trial, violated his Fourth Amendment right to be free from unlawful search and seizure. Absent exigent circumstances which require an immediate search of phone records for the safety of law-enforcement officers, a warrant is required.

Used to be you were entitled to one phone call when charged with a crime. Nowadays, a valid warrant to search your one cell phone could be your downfall.

And in a civil action, if the evidence of phone use at the time of the accident is in there, it could turn out to be the ultimate collect call, at least for the plaintiff seeking money damages.

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Posted In: Auto Accidents , Brave New World , Crime and Punishment , Evidence , New York State Courts , Other State Courts

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Supreme Court of Ohio: State of Ohio v. Robinson

The law is a slow moving behemoth. Technology changes at a meteoric pace. Watching the law trying to keep up can be amusing and depressing. It can also leave one wondering if the common law—judicial decisions applying general principals of law to given sets of facts—has yielded to the nano state (a derivative of the nanny state) where legislative micro management of rapidly-changing technology is the norm and an ever-increasing challenge for our courts. Ohio v. Robinson is a case in point.

Raynell Robinson was upset with his nephew Antonio. Antonio and his friend Heather Hoge had attended a party at Robinson’s apartment when Robinson was not at home. When he walked in on the affair, he ordered everyone to leave. As nephew Antonio and his friend Hoge began to leave, Robinson hit Antonio in the back of the head. He then proceeded to pummel him. At some point Antonio called 911 on his cell phone. Although he was able to tell the operator that he was at The Meadows apartment complex and that his face was split open, Robinson grabbed the cell phone and smashed it before he could tell them his exact location. Antonio’s friend Heather Hoge then dialed 911 on her cell, but Robinson “told her to show him her hand and that that she had better not be calling the police.” Fearing for her own safety, Hoge got off the phone before she could say where in the complex Antonio was being beaten.

The cops eventually found the right place, the battered Antonio, and cited Robinson for Disorderly Conduct. A grand jury indicted him for the felonious assault of Antonio and for disrupting public service in violation of R.C. 2909.04(A)(3) which makes it a crime to impair the ability of law-enforcement officers and others to respond to an emergency or to protect and preserve any person or property from serious physical harm.

The assault count was never heard at trial. Antonio was apparently not confident he could be protected by the system. Instead, he moved to Arizona and refused to return to Ohio to testify, and, one suspects, obtained an unlisted cell phone number. Hoge testified, however, about the threats to her safety when she tried to call 911. Robinson was convicted and got 2 years for intimidating a victim and 15 months for impairing the cops’ ability to respond to the 911 call by smashing Antonio’s phone.

Plainly put, the question on appeal was whether smashing the cell phone was a separate crime under R.C. 2909.04(A)(3) since Antonio was trying to call the police for help at the time of the assault? The high court said it was.

The Third District Court of Appeals had held that R.C. 2909.04(A)(3) “clearly and unambiguously prohibits substantial interference with public emergency systems and utilities, not the destruction of a single private telephone or cell phone.” The Appellate court also found that the state “failed to prove the element of substantial impairment because the officers arrived at the scene of the assault within a few minutes of being dispatched.”

It’s not clear that Antonio appreciated this nuance or the extra time it took the cops to locate him in the complex or the fear he felt when his lifeline ended with the destruction of his cell phone. In fact, he seemed not to have fully recovered from this trauma, as his switch to Arizona Bell suggests, and the high court was not without sympathy. Ironically, the Ohio Supremes found with equal clarity and unambiguousness “that the damaging of a single private telephone or cellular telephone constitutes a violation of R.C.2909.04 (A) (3)” if the conduct substantially impairs the ability of law enforcement officers and others to respond to an emergency “or to protect and preserve any person or property from serious physical harm.” It also noted that the statute in question never mentioned “public emergency systems” or “utilities,” language the appellate court read into the statute when it reversed Robinson’s conviction.

As for whether there was “substantial impairment” of law enforcement’s ability to respond in this case, that was a question of fact for the jury. According to the high court, the issue isn’t one of response time, as the appellate court thought (is a 1 minute delay ok? is 3 minutes too much?); “the inquiry is directed toward [law enforcement’s] ability to respond.” Here, while the police were attempting to respond to Antonio’s call for help and find him in the complex without an exact apartment number, Robinson continued to beat the hell out of him. That was substantial impairment enough and a direct result of smashing the phone.

Accordingly, Robinson’s conviction and 15 month imprisonment for disrupting public services were reinstated.

This is not an isolated case. It is a picture of the nano-state we live in. Technology keeps changing. Elected officials try to keep up. The legislation gets too technical. Then the courts, in this case, the Third Appellate Department of Ohio, get hyper technical and ethereal, only to be corrected by a high court that agrees with a jury of lay people who got it all right from the beginning.

The diminished role of common law (and the elevated role of legislative solutions to perceived technical loopholes in the law) brings with it a concomitant loss of common sense. It would seem plain to everyone but judges that smashing the cell phone of your assault victim as he calls for help would impair law enforcement’s ability to respond and was the sort of thing envisioned by Ohio’s duly elected representatives and their nano-legislation.

Nowadays, the only thing plain to most of us is that the law is never clear and unambiguous. It's voluminous, exhaustive and more like the tax code than the Ten Commandments.

Voltaire was right. Common sense is not so common. Maybe even less so the more technology becomes part of our daily lives and the more legislators try to regulate it.

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Posted In: Brave New World , Crime and Punishment , Other State Courts

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US Court of Appeals for the Third Circuit: United States v. Fullmer et. al.

We live in very contentious times. The red-state-blue-state divide is political, geographical and cultural. Debate about issues is frequently obscured by the politics of hate, by innuendo and by ad hominum attacks on those who speak out on the issues. Whether you support Rush Limbaugh or Al Gore, Sara Palin or Barack Obama, there seems to be way less common ground than in times past—and way less interest in even finding it.

Everything has become a crisis. Everything has become an issue that cannot be compromised. And everything is magnified and disseminated exponentially, courtesy of the worldwide web. Just a click away, a wonderful and dreadful thing the web: both a fountain of breaking news, information and learning and a cesspool of violence, pornography and hatred all at once.

Perhaps there’s no other tool with the power to destroy lives and reputations so easily. Bloggers can be indifferent to facts. Rumormongers can ruin lives with a well placed post. And anyone with a computer can upload their own demise on line or set in motion events that lead to the demise of others.

Somewhere between on-line beheadings and spam, we find US. v. Fullmer.

The case is about the activities of Stop Huntingdon Animal Cruelty (SHAC) and six individual defendants (referred herein collectively as “SHAC”) who were either employees, principals or in some way associated with SHAC. SHAC was formed in 1999. It has been uncompromisingly opposed to Huntingdon’s research with animals and committed to closing its laboratories. According to SHAC, Huntingdon was a purveyor of animal cruelty in the interest of science and corporate profits. Its abuses of animals were depicted in a surveillance videotape (viewer discretion advised) obtained by someone posing as a Huntingdon lab technician. When aired on British TV, it led to a spate of protests and the birth of SHAC-UK and subsequently, its US counterpart after SHAC’s relentless campaign caused Huntingdon to relocate to the states.

SHAC’s opposition to Huntingdon was not based on the actions of Gandhi or Martin Luther King. It was something new. Something born out of the cyber age. It targeted Huntingdon and companies that dealt with it, from accounting firms, bankers and realtors, to Huntingdon board members, stockholders and employees, including their wives and children. SHAC used its website as a bludgeon. Its take-no-prisoners, scorched-earth approach to its mission was incredibly effective. And frightening. As defendant Gazzola put it, “this is the most successful campaign in the history of the animal rights movement and it’s precisely because we’re pushing the limits and we’re tired of standing around holding signs and yelling at buildings and writing letters and not getting anywhere. We’re gonna do what we have to do in order to be effective and in order to save lives.”

The court’s opinion chronicles a sampling of the SHAC defendants’ activities. Its web postings included the following:

-Coordinating protests;
-Encouraging direct action (both legal and illegal, the illegal kind being both lauded and disavowed simultaneously);
-Instructing economic sabotage (including step-by-step how-to instructions as well as posting times for coordinated electronic assaults on corporate servers and fax machines);
-Listing accomplishments (such as people and places that had been attacked or acquiesced to SHAC’s demands); and
-Promoting vandalism (or at least excusing and appreciating it as a natural overflow of anti-Huntingdon outrage).

In a message to all associated with or employed by Huntingdon, defendant Harper used the backdrop of successful personal and institutional attacks to put Huntingdon and its business partners on notice of SHAC’s reach: “animal abusers …may be safe from the cops, the army, and the FBI…they are not safe from us…If no one else will treat them like the criminal scum that they are, at least we will…It is time to go beyond our fear of reprisals.”

Given the contents of the surveillance video, some might find such hard-edged tactics acceptable. But there was more. There were physical attacks and protests at board members’ homes. There were personal threats to them. To their children. Home addresses were published on the web. Phone numbers were published. Houses were flooded, windows smashed and neighbors intimidated. There was the posting of the “Top 20 Terror Tactics.” There were death threats by email and phone. And there was a state of fear that was nurtured and encouraged by SHAC.

SHAC’s web page, while always disavowing illegal activity, sympathized with its supposed unknown, more violent compatriots, and published instructions about how to avoid detection or arrest for such activity (even a cursory reading of the court’s decision is like a manifesto on modern economic warfare by cyber means—in many ways, it’s as disturbing as the Huntingdon video). Those targeted lived in abject fear for their lives, some to the point of arming themselves, others to the point of surrender, acquiescing to SHAC’s demands rather than resisting them alone.

Defendants were eventually charged and convicted of a variety of offenses, including conspiracy to violate the Animal Enterprise Protection ACT (AEPA protects those who use animals for testing from certain forms of animal-rights activity), conspiracy to commit interstate stalking as well as three substantive counts of stalking.

On appeal, defendants argued, among other things, that the convictions violated their First Amendment right to engage in civil disobedience and to voice their objections to Huntingdon’s activities. The court disagreed. While some postings on SHAC’s website were protected speech, notwithstanding it was “speech that many find offensive and uncomfortable,” other posts which “coordinate electronic civil disobedience and disseminate the personal information of individuals employed by Huntingdon and affiliated companies are more problematic.” Such communication was not protected speech and some “constituted ‘true threats.’”

As the court observed, “viewed in context, the speeches, protests, and web postings were all tools to further their effort” and were not speech protected by the First Amendment. They were crimes. Accordingly, the individual defendants received sentences ranging from one year to six years in prison.

We are left with a number of questions: Are these people heroes in the animal rights movement? Should they be applauded for putting their lives on the line for their beliefs (even belatedly, since on line, they denied personal involvement)? Are they simply zealots who did what was necessary to save animals?

Or are they thugs? Bullies? And political / business terrorists?

Those on the receiving end of their “protests” would vote for the latter category. Many who share SHAC’s views might see them as visionaries. But the question remains: What type of society are we evolving into?

Maybe the ends justify the means when it comes to animals. How about when it comes to global warming? To illegal immigration? To mandatory vaccines for H1N1? To gun control or legalizing marijuana?

Are we inexorably on a road that takes no prisoners in a winner-take-all battle over everything? Or have we already crossed the Rubicon when it comes to civil discussion and the common good?

Sometimes it looks and feels that way. Sometimes it looks and feels like we are willingly letting the common ground beneath our feet slip away, completely indifferent or oblivious to the fact that we are falling into something much more dangerous and intolerant and insidious—all in the interest of advancing THE cause.

Which, of course, says something either about our lack of powers of persuasion or our inability or unwillingness to listen to the other side. Or to lose gracefully. In the market place of ideas that is America, the wheat has always been separated from the chaff, which historically has brought out the best in America, and which hopefully, will continue to do so even as the internet has the potential to bring out the worst.

Still, we should be glad about this uniquely American problem because freedom of speech can only be abused where it exists in the first place.

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Posted In: Brave New World , Crime and Punishment , Culture War , Speech , Terrorism , The Internet , U.S. Court of Appeals

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U.S. Court of Appeals for the Second Circuit: Halpert v. Manhattan Apartments, Inc.

In New York, unless you’re in a union, are a government worker or have a contract of employment, you are an at-will employee. You can be fired for any reason whatsoever, except, of course, for the wrong reasons (the discriminatory ones proscribed by state and federal legislation and constitutions). Those protections extend to the hiring process as well.

Michael Halpert applied for a position with Manhattan Apartments Inc. (MAI) showing rental apartments . He was interviewed by Robert Brooks. Halpert claims Brooks told him he was “too old” for the job and sent him on his way. Brooks was not an employee of MAI. He was an independent contractor (a cost saving measure used by many employers to avoid giving benefits, and sometimes, to avoid coming under the mandates of federal or state laws by keeping the number of “employees” under the amount that triggers the laws applicability). Halpert didn’t care what Brooks was. He knew his rights so he sued MAI for age discrimination.

The lower court ruled in MAI’s favor, finding that the Age Discrimination in Employment Act (ADEA) “does not apply to independent contractors.” As a result, it dismissed Halpert’s case finding that MAI was not an employer under the definition of the ADEA.

Not so fast.

Employers may be able to reduce taxes, keep costs down and avoid providing health coverage by requiring workers to be independent contractors, but they don’t get a free pass for discrimination when that independent contractor is acting on the employer’s behalf. As the court concluded, if Halpert was interviewed by Brooks for a position with MAI, or MAI let Halpert believe he was being interviewed for a position with them (and not with Brooks) “an employer (MAI) can potentially be held liable for discrimination by an independent contractor (Brooks) who acts for the employer.”

Since the ADEA provides that “an employer may not ‘fail or refuse to hire...any individual...because of such individual’s age,’” MAI could be found liable if Brooks did in fact tell Halpert he was too old for the job. The court put it this way: That prohibition applies regardless of whether an employer uses its employees to interview applicants for open positions, or whether it uses intermediaries, such as independent contractors, to fill that role.” If Brooks had authority to hire, MAI couldn’t hide behind his independent contractor status to avoid liability for discriminating against Halpert. And that question can only be resolved when the nature of Brooks’ authority and relationship with MAI is fully explored.

Accordingly, questions of fact exist which could not be resolved by summary judgment and the dismissal by the District Court was vacated.

It’s good to know that a mere declaration of independence doesn’t insulate an employer from the actions of those it hires as independent contractors. If that were the case, everyone would be required to be an independent contractor, leaving employers free to act with impunity while letting their non-employees do whatever dirty work was needed. That is one giant loophole the court was not prepared to create and one most of us would consider sound public policy. In employment as in life, you don’t necessarily dodge the bullet by claiming “it wasn’t me!” Sometimes you’re responsible, even if you don't personally pull the trigger. That’s the way it’s always been, legal constructs like "independent contractor" notwithstanding.

As a footnote, it’s worth noting that Mr. Halpert prevailed in this matter pro se—without the assistance of counsel—or put another way, as an independent contractor. There’s a certain irony in that. One hopes it’s not lost on MAI or Mr. Brooks.

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Posted In: Employment Discrimination , It's My Right! , U.S. Court of Appeals

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U.S. District Court, Southern District of New York: Howard K. Stern v. Rita Cosby et. al.

When trying to understand the tenor of the times, the writing on the wall is often hidden in the small print. And depending on where you live (red state / blue state – the coast or the heartland) the fine print reads and is received differently. The fine print about homosexuality and how it is viewed is what makes the Stern case noteworthy.

Rita Cosby is a well-known TV reporter. After the death of Anna Nicole Smith, Ms. Cosby decided to write a book about her. That book, Blonde Ambition, the Untold Story Behind Anna Nichol Smith’s Death, was published on September 4, 2007, just seven months after Ms. Smith died from a prescription drug overdose.

Cosby rushed to do her book while Anna Nichol Smith was still hot news. Smith had grabbed headlines for years because of The Anna Nicole Show, because of her marriage at age 26, to 89-year-old- billionaire J. Howard Marshall III and because of the death of her son Daniel just days after Smith gave birth of her daughter Dannielynn in 2006.

While publishers were eager to run with any news about Anna Nicole, co-defendant Hatchette Book Group was not interested in Cosby’s idea for a book “unless it contained previously unreported information.” Cosby promised the book would have “a number of previously unreported explosive news items.” As part of the sales pitch, Cosby’s agent told Amy Einhorn, an editor at Hatchette, two “facts” that would seal the deal. Einhron listened, then told her colleagues she had just heard two "holy shit" items. The next day, Hatchette offered Cosby a $405,000 advance plus royalties for the book.

After the book was published, Howard Stern, former Nicole Smith lawyer, boyfriend, alleged father of her daughter for a time and confident of Ms. Smith, sued Cosby and Hatchette for libel. Hatchette and Cosby moved for summary judgment. Hatchette prevailed. Cosby, not so much.

There were 19 Statements in the book that Howard Stern claimed were libelous (they’re described at pages 10 -13 of the decision). Cosby’s motion for summary judgment was granted as to 8 of those statements. It was denied as to 11 others (see page 48 of the decision). So part of the case will go forward. For our purposes, however, we will deal with statements 1 and 2, the two "holy shit" items that closed the deal for Cosby and Hatchette.

Statement 1: “Stern and Birkhead [Nicole Smith’s boyfriend] had oral sex at a party at a private home in Los Angeles. Smith discovered them, laughed, and later remarked that Stern was gay.”

Statement 2: “Smith, in front of her nannies in the Bahamas, used to regularly watch a video of Stern and Birkhead having sex.”

Limiting our focus to Statements “1” and “2”, Cosby’s defense was that Howard Stern’s reputation through all the Anna Nicole Smith years was so bad prior to publication of her book, that he could not have been further damaged by the statements, and that he was therefore “libel proof.” The court did not agree.

Cosby also argued that Statements “1” and “2” which “impute homosexuality to Stern, are not defamatory...and are therefore not actionable.” Stern claimed they are defamatory per se (i.e.,the allegation alone is presumed to cause damages).

Here’s where the blue state - urban - northeast view of the world is contained in the fine print, a view that is either a great progressive step forward, an inconsequential footnote on the law of New York State, or a confirmation that the homosexual agenda has quietly vanquished one of the Judeo-Christian foundations upon which much of our culture stands.

Writing for the Court, Justice Chin concluded that “Statements 1 and 2 are defamatory, but not defamatory per se” even though the 1st and 2nd Departments of New York’s Appellate Division have held that the “false imputation of homosexuality is reasonably susceptible of a defamatory connotation.” Noting that the New York’s Court of Appeals had never ruled on the subject, Justice Chin took it upon himself to “predict what New York’s highest court would do were the issue before it.”

According to Justice Chin,

The New York Court of Appeals has held that the following four categories of statements are defamatory per se: (1) those that accuse the plaintiff of a serious crime; (2) those that ‘tend to injure another in his or her trade, business or profession’; (3) those that accuse the plaintiff of having a ‘loathsome disease’; or (4) and those that impute ‘unchastity to a woman”

The Court went on to find that whether a statement is defamatory per se depends on “the temper of the times, the current contemporary public opinion, with the result that words, harmless in one age, in one community, may be highly damaging to reputation at another time or in a different place.”

Based on this analysis, Justice Chin framed the issue thusly:

“The question, then, is whether the New York Court of Appeals, in 2009, would hold that a statement imputing homosexuality connotes the same degree of ‘shame, obloquy, contumely, odium, contempt, ridicule, aversion ostracism, degradation of disgrace”... as statements accusing someone of serious criminal conduct, impugning a person in his or her trade or profession, implying that a person has a ‘loathsome disease’ or imputing unchastity to a woman. I conclude that it would not.” [Some Bible-toting alleged homophobes, or "breeders" as they are non-defamatorily referred to, may not agree.]

To further support his view, the Judge looked to what he sees as the “veritable sea change in social attitudes about homosexuality” including laws decriminalizing homosexual conduct, the movement to legalize gay marriage, that a Quinnipiac poll found that New York State resident support gay marriage 51 to 41 percent with 8 percent undecided and finally, that New York’s Court of Appeals “has not, in its most recent opinion touching on social attitudes toward homosexuality, given any indication that it perceives widespread disapproval of homosexuality in New York."

Justice Chin then relied on his brethren in Massachusetts for this (questionable) conclusion: “If this Court were to agree that calling someone a homosexual is defamatory per se—it would , in effect, validate that sentiment and legitimize relegating homosexuals to second class status.”

OK. Statements 1 and 2 are therefore not defamatory per se. “They are, however, susceptible to a defamatory meaning. Therefore a jury will decide whether they are defamatory.

Here’s the fine line the learned judge has drawn: It’s not defamatory to be called a homosexual. But it might be defamatory to say someone's a homosexual who also engaged in oral sex at a party in the home of another. That, apparently, is conduct that “ a reasonable jury could find...is shameful or contemptible...” (it is not clear whether the accusation of boorish party behavior offended the judge's sensibilities, or the assertiion that the sex occurred at someone else's house). Moreover, since the statement suggests that Howard Stern was having sex with a man while he was intimately involved with Anna Nicole, it implies unfaithfulness to her, and this would be “further reason for a jury to find that the Statement is defamatory.”

Accordingly, the court found that homosexuality no longer holds any opprobrium, at least in the abstract, but reckless homosexuality (with respect to time and place) that is compounded by unfaithfulness can be defamatory because faithfulness is still considered a virtue, as is not coveting your neighbor's bedroom to engage in homosexual acts.

I reserve opinion on this matter—not that there’s anything wrong with that—and leave it to other legal and culture pundits to figure out if this is good for the body politic or not.

As a footnote, it might not be defamatory to call someone a homosexual, but according to today's New York Post, you better think twice before you say someone looks like a "skank." It's not clear how this ruling would affect Judge Chin's decision, but clearly, any name callers out there should think twice before saying a homosexual looks like a skank.

To be on the safe side and pending further clarification by the courts, it's probably best to restrict all potential defamatory remarks toward commonly accepted libel-proof targets, such as Christians, far-right conservatives, global-warming deniers, "birthers" and trial lawyers.

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Posted In: Culture War , Damages , Homosexuality , Speech , U.S. District Court

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New York State Court of Claims: DePaula v. State

Like they say on TV, don’t try this at home if you’re not a professional.

Claimant is an attorney. He was a little late for Civil Court in Queens, having missed the first call of the calendar. Like many of us, he had a few cases on in court that morning. While sitting in the back of the crowded courtroom as the judge conferenced cases at the bench, his cell phone rang. Unfortunately, it was not set on vibrate. After less than a half minute of talk, he was approached by a court officer.

Rather than admonish Mr. DePaula, the officer confiscated his phone. As irritating as that may have been, he also advised the busy barrister that he could “get the phone back at about 1:00 PM” when court was in recess. Apparently, they really take the turn-off-your-cell-phone rules seriously in Civil Queens.

There is some discrepancy about what happened next: Attorney DePaula says that while he waited for his case to be called, the officer walked toward him. The officer claims that after he took the phone and was attending to his courtroom duties, DePaula was “staring at him” before he walked over. Both sides agree that when the officer approached, he told DePaula “you should know better.” In response, the attorney admits saying, “You’re just being a prick ” (by which he meant to convey that the officer was a “contemptible, disagreeable, obnoxious person”), while the officer claimed Depaula said, “in a loud nasty tone: ‘You know something, you’re a prick’” (which he treated as a “disruption” of the court proceedings taking place), whereupon DePaula was asked, but refused, to leave the courtroom. Both do agree, however, that DePaula was immediately arrested, handcuffed, removed from the courtroom and confined in a security office in the courthouse, giving new meaning to the term call waiting.

After fifteen or twenty minutes handcuffed incommunicado in the cooler, the officer returned. The cuffs were removed, the cell phone returned and a summons for disorderly conduct was issued. DePaula pleaded not guilty, went to trial on the discon charge, and was acquitted. He then sued in the Court of Claims for False Arrest and Malicious Prosecution.

According to the Court of Claims, “the elements of a false arrest cause of action are: (1) the defendant intended to confine claimant; (2) claimant was conscious of the confinement; (3) claimant did not consent to the confinement; and (4) the confinement was not otherwise privileged.” When there’s an arrest without warrant, the burden shifts to the defendant to “establish that the arrest was privileged,” thus validating a charge of disorderly conduct under Penal Law §240.20 (3). As it turns out, the court officer had a wrong number, and the arrest was held not to be privileged.

As the court politely put it, “however reprehensible the utterance Mr. DePaula chose to make, in a courtroom and addressed to a Court Officer, the statement alone did not, as a matter of law, amount to disorderly conduct. The law is well settled that the mere use of 'abusive or obscene language' in a public place does not constitute a violation of Penal law §240.20 (3),” as the Court of Appeals has already held. As for the claim of malicious prosecution, the court did not find the requisite “actual malice” and so dismissed that count. A hearing on damages was scheduled to follow.

It’s reassuring to know that the breakdown of civility in our society has transcended the streets, giving us all the right to speak our mind to whomever we want wherever we are, even within the hallowed halls of justice. That’s probably a good thing legally (and maybe it’s an inroad of sorts into the constraints of political correctness), but culturally it may leave something to be desired.

Still, if you’re going to speak your mind, be prepared to put in the time. Your rights often come at a cost. And sometimes, especially when it involves going to court, the cost is billed by the hour. Which is why such bold speech is probably best left to the professionals.

Just ask Mr. DePaula. But ask him nicely.

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Posted In: Crime and Punishment , Culture War , It's My Right! , New York State Courts , Speech

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