Man Falsely Arrested Because of Facial Recognition Software Error Sues Detroit -- UPDATED

Monday, April 19, 2021

A man who was wrongly arrested has filed a federal lawsuit against the city of Detroit over his wrongful arrest, which he says was caused by faulty facial recognition technology.  Courthouse News Service has the story here.

According to the lawsuit, people of color are up to 100 times more likely to be misidentified using the technology than white men because the algorithms were created using primarily Caucasian faces which creates an unfair database.

Other cities, including Boston and San Francisco, have banned the use of facial-recognition technology.

UPDATE 4/26/21:  TechDirt has more on the story here.

Iowa Senate approves bill to recognize qualified immunity

 At a time when some courts and states are eliminating qualified immunity (see here, here, here and here, for example), Iowa has decided this is a good time to do the opposite.  

TechDirt has the story here.

New Mexico abolishes qualified immunity in state claims

Last week, Governor Michelle Lujan Grisham of New Mexico signed a law which eliminates the defense of qualified immunity for public officials in state claims.  New Mexico is now the third state to have eliminated the defense.

The new law provides: "In any claim for damages or relief under the New Mexico Civil Rights Act, no public body or person acting on behalf of, under color of or within the course and scope of the authority of a public body shall enjoy the defense of qualified immunity for causing the deprivation of any rights, privileges or immunities secured by the bill of rights of the constitution of New Mexico."

It is important to note that the new state does not relate to claims brought under federal law, which still recognizes qualified immunity as a defense.

Reason.com has more on the story here; Jurist has more information here.

Article and program on settlements in police misconduct cases

  Yesterday I posted a video on data related to how much money is spent on settling cases of police misconduct.  Today, I am posting another conversation on the subject.  In this one, Benjamin Wittes sat down on Lawfare Live with Rashawn Ray, the David M. Rubenstein Fellow in Governance Studies at the Brookings Institution, to talk about civil settlements. Rashawn is the author of a recent Lawfare article about how to reform the civil settlement system to make it more effective in deterring police misconduct, and they discussed the series of reforms that Rashawn recommends.  You may want to read the article first (here) and then listen to the conversation (by clicking on the play button below or by going here.)

Study on how much money cities' pay to settle police misconduct cases

As you probably know, police misconduct trials are rare, often because the defendants are granted qualified immunity.  However, those claims are claims brought against individuals.  The situation in cases brought against cities or other government entities is different.  In those cases, cities often pay high amounts of money to settle misconduct claims.  

Over at the website FiveThirtyEight, their quantitative editor Laura Bronner recently spoke with Galen Druke about FiveThirtyEight and The Marshall Project’s investigation into the amount of money cities have spent on police misconduct settlements — in the range of $3 billion over the last decade. What’s less clear is whether the situation has improved within that time period.

You can watch the conversation by clicking on the play button below or by going here.

Good article on the defamation claims against Sydney Powell

 Over at Verdict, Michael Dorf (Cornell Law) has published a good comment on the defamation case against Sidney Powell.

In case you don't remember, Sidney Powell is the former lawyer for the Trump campaign who at one time promised to "release the Kraken," argued that the Dominion vote counting machines had somehow been rigged by Venezuela and that Dominion had bribed public officials in Georgia, among many other things. 

Some time later, Dominion sued her for defamation and recently Powell, through her attorneys, argued that her statements could not constitute defamation because they were so crazy that noone would believe them to be true.  

This defense is somewhat logical given defamation law, but also problematic because if the statements were so unbelievable, then she herself must have known they were not true when she affirmed them.  And, since she affirmed them is support of litigation, by making the defense in the defamation case she is admitting to either being incompetent or to having instituted litigation improperly, both of which can subject her to professional discipline (which I believe she is facing in at least one state).

But the article linked above is about the defamation claim and on the validity of the defense.  Go take a look at it.

Florida enacts immunity for Covid-19 related claims

Last week, Florida enacted legislation shielding businesses and health care providers from COVID-19 injury and death lawsuits, which is good news for business but bad news for consumers.

The new law gives civil immunity to corporations, hospitals, nursing homes, government entities, schools and churches, among others, for injuries related to Covid-19 caused by negligent conduct.  It does allow plaintiffs to bring causes of action based on alleged gross negligence or intentional misconduct, but in those cases, it raises the burden of proof and places other procedural requirements to make it more difficult for plaintiffs to bring their claims.  For example, according to the statute, plaintiffs will have to prove that a defendant did not make a good faith effort to comply with public health standards and that a defendant committed gross negligence under a "clear and convincing" evidentiary standard.  The law also establishes a one-year limitation period from the later of the date of death, hospitalization or COVID-19 diagnosis that forms the basis of the claim. 

Not surprisingly, tort reform advocacy groups, the Florida Chamber of Commerce, and defendants' lawyers have expressed their approval of the new law, claiming, among other things that "[w]ith the governor's signing of Senate Bill 72, [businesses] no longer have to be worried about fighting frivolous lawsuits from plaintiffs alleging they contracted COVID-19 at their place of business."

This statement is, of course, nonsense.  The law was not enacted (and does nothing new) to eliminate frivolous lawsuits.  The law, like most other tort reform measures, was enacted to prevent valid litigation.  

What the law does is eliminate incentives for businesses, hospitals, and nursing homes to act reasonably in order to protect the public from whom they derive all their profits.  One of the main goals of tort law is to deter conduct that creates unreasonable risks of harm to others.  The statute adopted in Florida does the opposite.  It does nothing to protect employees, customers and front line workers who have sacrificed to keep communities safe and the economy open by eliminating the possibility of accountability for negligent businesses and health care facilities.

Now businesses, including hospitals and nursing homes, do not have to worry about acting with due care and will not be liable for any injuries they cause as a result.  How is that a good thing?

Law360 has more on the story here.