New York Injury Attorney Blog

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.

Posted by Mark A. Eskenazi | Permalink | Email This Post | Comments (0)

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

Bookmark:

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.

Posted by Mark A. Eskenazi | Permalink | Email This Post | Comments (1)

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

Bookmark:

U.S. Court of Appeals for the Third Circuit: Webb v. City of Philadelphia

How would you feel about getting pulled over by a cop wearing a hijaab—the traditional headcovering worn by Muslim women? That’s the question presented by Officer Kimberlie Webb of the Philly PD. A cop since 1995 and a practicing Muslim, she decided she wanted to wear such a headscarf “while in uniform and on duty.”

The Philly PD said “no” based on Department Directive 78 which severely restricts permissible police attire. For the police brass, a hijaab would be an unacceptable official wardrobe malfunction.

Undaunted, Webb filed a Civil Rights complaint with the EEOC and the Pennsylvania Human Relations Commission. Six months later, while that matter was still pending, she made a fashion protest and wore her hijaab to work. She was ordered to remove it, refused, and was sent home. The same thing happened the next day, and the day after. Disciplinary charges were brought against her and she was suspended for 13 days.

She then sued the City, the cops and the Police Commissioner for religious discrimination, retaliation and sex discrimination.

The District Court dismissed all of Officer Webb’s claims, finding that the standards set out in Directive 78 “promote the need for uniformity, but also enhance cohesiveness, cooperation, and the esprit de corps of the police force.”

The Circuit Court of Appeals explained the law on religious discrimination thusly: the employee must show: “(1) she holds a sincere belief that conflicts with a job requirement; (2) she informed her employer of the conflict; and (3) she was disciplined for failing to comply with a the conflicting requirement.” Both the District Court and the Circuit Court held that Officer Webb satisfied these requirements. But the inquiry doesn’t end there. Once satisfied, the burden shifts to the employer to show “either it made a good-faith effort to reasonably accommodate the religious belief, or such an accommodation would work an undue hardship upon the employer and its business.”

As the Philly Police Commissioner put it, enforcement of Directive 78 “is critically important to promote the image of a disciplined, identifiable and impartial police force by maintaining the Philadelphia Police Department uniform as a symbol of neutral government authority, free from expressions of personal religion, bent or bias.” Accordingly, cops cannot wear any religious garments with no exception for hijaabs. As the Court noted, the Commissioner’s reason for refusing wardrobe accommodations were “sufficient to meet the “undue hardship upon the employer” threshold that the Philadelphia Police Department was required to show.

Webb’s appeal to the Circuit Court was also dismissed.

As Jack Webb (no relation), Sergeant Joe Friday of Dragnet fame used to say, “Nothing but the facts, ma'am.”

To paraphrase, "Nothing but the hats, ma'am."

Posted by Mark A. Eskenazi | Permalink | Email This Post | Comments (0)

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

Bookmark:

U.S. Court of Appeals for the Eleventh Circuit: NAACP v. Evon Billups, Superintendent of Elections

The great voter-photo controversy continues. This time in Georgia.

Just how burdensome is it to individuals living in the 21st Century to produce a photo before they can vote? According to the plaintiffs who challenged Georgia law requiring such onerous measures as proving you are who you say you are with an ID (even a free one paid for by the State if you somehow managed to live your life in America without possessing some sort of photo ID), it is the equivalent of a poll tax and worse, and therefore in violation of the Twenty-Fourth Amendment, of the Equal Protection Clause, of the Fourteenth Amendment, of the Civil Rights Act of 1964, of Section 2 of the Voting Rights Act of 1965 and of the Georgia Constitution.

A photo ID?

Have we become so sensitive (senseless?) that merely requiring voters to show a confirming photo to vote could be thought so burdensome and discriminatory as to invoke monumental claims of constitutional and legislative infringements? Or are we not prepared to deal with the fact that voter fraud might be occurring right here in the good ole U.S. of A.

Well, there is still some common sense afoot in the common law and the Court of Appeals ruled that the minimal burden imposed by the voter-photo law was far outweighed by the state’s interest in “protecting ‘the integrity and reliability of the electoral process.’”

Here’s the bottom line: “The ordinary burdens of producing a photo identification to vote, which the Supreme Court described as ‘arising from life’s vagaries,’ do not ‘raise any question about the constitutionality of’ the Georgia statute.” Accordingly, voters in Georgia, as in Indiana (and 5 other states), will have to reach into their wallet for their picture before they cast their ballots. Hopefully, they will survive the trauma.

But will the nation survive this negative assault on our electoral process? Is this a portrait of an empire in decline entering the darkroom of disenfranchisment? Or merely a snapshot that has exposed the voter to the brutal truth that the camera doesn’t lie, even if some voters do.

Show ‘em a picture already!

With so many hotly contested elections and legal challenges ending in photo finishes, maybe we should all just smile and say “cheese” before we poke a few chads or pull the lever.

That’s how I vote on this one.

Posted by Mark A. Eskenazi | Permalink | Email This Post | Comments (0)

Posted In: Culture War , It's My Right! , Other State Courts , Politics , U.S. Court of Appeals , Voting Rights

Bookmark:

U.S. Court of Appeals for the Fifth Circuit: United States v. Porter

There all kinds of new ways to commit crime: There’s identify theft, credit card fraud, computer hacking and stealing cable or satellite signals. There are also new ways to commit old crimes. Thanks to advances in color copying, anyone can turn counterfeiter with low or no overhead and just a little bit of ingenuity and determination. But as always, good art is in the eye of the beholder.

The question presented almost sounds existential: If you’re a terrible counterfeiter and no one will actually believe that your funny money is real, have you really committed a crime?

According to the court, a bad job is still a bad act and a C minus C note will still land you in stir.

Chrystal Porter was only too willing to participate in an ill-conceived plan to make some easy money and help her friends out of a jam. Joey Barret lived with Erica Horton. Barret owed Carlos drug money. When Barret couldn’t pay, Carlos began threatening the couple and their children. As a compromise born of necessity, Barret and Erica agreed to let Carlos use Erica’s color copier to make fake money to pay off the drug debt.

This was not top-shelf work. Color copies of each side of a hundred dollar bill were duplicated onto manila paper. The two sides were cut out and glued together, then crumpled to give them that genuine used look. Erica completed the masterpiece by drawing lines on the fakes to look like the magnetic strips on the real deals. Carlos needed a place to pass the bad bucks and Erica said she knew a cashier at Wal-Mart. Enter Chrystal Porter.

When Porter showed up at the house, Erica presented their art project and asked if Porter would accept the fakes at her register at Wal-Mart. After studying the bills, Porter concluded, “Yeah, this will work.” When Porter was on the clock, Erica showed up and bought $300 worth of gift certificates with the bogus bucks and Joey bought another $200. Needless to say, Wal-Mart discovered the scam almost immediately and within 2 days the cops were at Porter’s home where she spilled her guts and dropped a dime on Joey and Erica.

Porter was indicted, tried and convicted for conspiracy to manufacture and utter counterfeit US obligations.

Porter’s defense at trial was that this was such a terrible forgery it couldn’t be taken seriously and therefore the fakes couldn’t be considered counterfeit. As she put it, “the instrument that she specifically agreed to assist in passing did not sufficiently resemble genuine currency to be counterfeit” so it was impossible for her to be guilty of conspiracy. She went so far as to say her copies were no better than monopoly money and couldn’t fool anyone.

At trial, the case turned on the details of the jury charge. Defendant argued that the jury should have been told the following: “A bill is counterfeit only if it possesses similitude: it bears such a likeness or resemblance to genuine currency as is calculated to deceive an honest, sensible and unsuspecting person of ordinary observation and care when dealing with a person supposed to be upright and honest.” The lower court thought otherwise and instead charged that “To be counterfeit, a Federal Reserve note must have a likeness or resemblance to genuine currency.” The “likeness” was good enough for the jury and Porter was convicted.

Porter raised this argument again on appeal, making this fine distinction: “even though she conspired to pass fake $100 bills, she did not conspire to pass counterfeit $100 bills. In essence, she argues that, by refusing to instruct the jury using her definition of counterfeit, the trial court denied her the opportunity to present her main defense to the jury.” Put another way, Porter claimed she was such a bad criminal she didn’t commit a crime.

Not persuaded by the weight of her argument, the Court of Appeals found that the jury charge Porter wanted was appropriate only if she had been charged with violations of 18 USC Section 473 (requiring the perpetrator to acquire or dispose of such false obligations with “the specific intent that they be perceived ‘as true and genuine.’” Since Porter’s conspiracy charge was based only on violations of Section 471 (making counterfeit bills) and Section 472 (passing fake bills) all that was required for the bills to be considered counterfeit was “a likeness or resemblance to genuine currency.”

They may have been really bad bills, but they were good enough for the Feds, for the jury, and now, for the Appellate court.

Bad paper is bad paper. Or is it? The only thing it will buy you at Wal-Mart is time. On Wall Street, however, bad paper can still buy you a bail out.

Porter’s real mistake was not getting her MBA or heeding the Wall Street warning: DON'T TRY THIS AT HOME.

Posted by Mark A. Eskenazi | Permalink | Email This Post | Comments (0)

Posted In: Brave New World , Crime and Punishment , U.S. Court of Appeals

Bookmark:

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 along the way.

While the District Court struck down that part of the statute that prohibited protests at “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, Phelps-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 what 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 God's name.

Posted by Mark A. Eskenazi | Permalink | Email This Post

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

Bookmark:

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.

Posted by Mark A. Eskenazi | Permalink | Email This Post

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

Bookmark:

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.

Posted by Mark A. Eskenazi | Permalink | Email This Post

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

Bookmark:

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.

Posted by Mark A. Eskenazi | Permalink | Email This Post

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

Bookmark:

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.

Posted by Mark A. Eskenazi | Permalink | Email This Post

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

Bookmark:

U.S. Court of Appeals for the Second Circuit: City of New York v. Beretta U.S.A. Corp.

The City of New York cannot hold gun manufacturers liable for illegal guns that find their way into criminal hands. NYC filed suit under its Public Nuisance Law. It claimed gun suppliers failed to monitor gun shows and private sellers, did not do appropriate background checks or keep records and were generally irresponsible. The result: illegal guns in the hands of bad guys, a major public nuisance. While sympathetic to the problem, the court dismissed the case because an act of Congress had already insulated Smith & Wesson and other gun makers from liability for acts committed by criminals using guns they manufactured. In this duel, the City’s Public Nuisance Law was no match for the bigger guns of Congress. Apparently, their aim was true and gun manufacturers are protected from civil suits for what criminals do with their products.

Posted by Mark A. Eskenazi | Permalink | Email This Post

Posted In: Guns , U.S. Court of Appeals

Bookmark: