A few days ago I posted a comment on a story about the arrest of a woman in Austin, Texas. Much of the discussion was about the police's conduct, but as I pointed out, there is a torts angle to the story because the Police Chief essentially admitted to a false arrest.
Now comes another story which is just as bad, if not worse!
A couple of days ago Res Ipsa Loquitur posted a comment criticizing Autin's police department's so-called "take no chances policy" which they apparently use to arrest citizens even though they have not committed any crimes just because the police wants to make sure they don't go on to commit crimes in the near future (I guess). Sounds like the movie Minority Report to me ... "you are under arrest for the future murder of so and so....", But I digress...
In any case, the story is that Austin police pulled over a man for running a red light. No problem there. But then the police asked the man to take a voluntary breath test. He consented and blew a 0.0. He also agreed to a blood sample and was later cleared of drugs. Having shown he was not intoxicated or under the influence of drugs, he was arrested anyway and spent the night in jail.
The story does not state what he was arrested for, but I doubt that you can be arrested and "sentenced" to a night in jail for running a red light. The police officers apparently claimed they had a reasonable suspicion that the suspect was under the influence of a drug not covered by the test and did not want to take a chance. Such is the "take no chances policy", apparently. The police think you did something wrong, so they have the right to arrest you for it, even if there is no evidence of it other than a mere suspicion. The story also states this is not the first reported incident under this "policy." The cases are routinely dismissed but not after citizens have to spend the night in jail.
If these allegations are true and if there really is a customary practice based on this so-called policy, someone should start a practice specializing in false arrests in Austin! (Just make sure you don't mention you specialize, but that is another story.)
Sunday, March 2, 2014
Sunday, February 23, 2014
Police Chief apparently admits to false arrest by officers in controversial case in Austin, Texas
One of my students sent me some links to a story out of Austin, Texas that illustrates a number of interesting points, including why a client should not address the media before talking to his lawyer. The case is very similar to Enright v. Groves, a case that you probably read in law school on the basic principles of the tort of false arrest. You may have heard the story, which apparently has been going around the internet for a few days, but here it is just in case.
According to the news stories I have read, it sounds to me the police set out to catch (and ticket) jaywalkers at a certain intersection. A young lady came by jogging while listening to music through earphones and did not stop for the "do not walk signal." After she crossed the street, an officer told her to stop but she didn't. The officer then chased her down and detained her. Exactly how that happened is subject to debate but the fact is she was pulled by the arm, detained, handcuffed and was taken to a police car. Some of this was caught on video and photos. Later, in response to the reaction to the story, the Chief of Police declared that the woman was arrested for "failure to identify" not for "resisting arrest." He also said that she went to jail because she failed to answer a question she was legally obligated to answer.
Here is the problem: the Chief is wrong. According to the law, the police can't arrest someone for failing to produce an ID on demand. They also can't arrest you for refusing to identify yourself at their request. The statute in question states that "a person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information." In other words, the offense is only committed if the person refuses to identify herself after they have been lawfully arrested. Arresting someone for failing to identify herself, without more, is not a lawful arrest. Bottom line, the woman had no duty to answer the question and the police had no legal authority to put her under arrest for it.
If the police had arrested the woman for something else (like jaywalking or resisting arrest) with probable cause, then she could be charged under the failure to identify statute. But the Chief admitted publicly and in camera that that is not what happened. In the televised press conference, he clearly stated (more than once) that the woman was arrested for failing to identify herself, and that "that" is why she spent time in jail.
Well, Chief, you just handed her a claim for false arrest (at least) on a silver platter!
According to the news stories I have read, it sounds to me the police set out to catch (and ticket) jaywalkers at a certain intersection. A young lady came by jogging while listening to music through earphones and did not stop for the "do not walk signal." After she crossed the street, an officer told her to stop but she didn't. The officer then chased her down and detained her. Exactly how that happened is subject to debate but the fact is she was pulled by the arm, detained, handcuffed and was taken to a police car. Some of this was caught on video and photos. Later, in response to the reaction to the story, the Chief of Police declared that the woman was arrested for "failure to identify" not for "resisting arrest." He also said that she went to jail because she failed to answer a question she was legally obligated to answer.
Here is the problem: the Chief is wrong. According to the law, the police can't arrest someone for failing to produce an ID on demand. They also can't arrest you for refusing to identify yourself at their request. The statute in question states that "a person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information." In other words, the offense is only committed if the person refuses to identify herself after they have been lawfully arrested. Arresting someone for failing to identify herself, without more, is not a lawful arrest. Bottom line, the woman had no duty to answer the question and the police had no legal authority to put her under arrest for it.
If the police had arrested the woman for something else (like jaywalking or resisting arrest) with probable cause, then she could be charged under the failure to identify statute. But the Chief admitted publicly and in camera that that is not what happened. In the televised press conference, he clearly stated (more than once) that the woman was arrested for failing to identify herself, and that "that" is why she spent time in jail.
Well, Chief, you just handed her a claim for false arrest (at least) on a silver platter!
Saturday, February 22, 2014
Assumption of the Risk? (part 2)
I was asked to comment on my rhetorical question related to assumption of the risk as suggested by the photo I posted below.
So here it is...
The question is whether a defendant could claim assumption of the risk based on the statement included in the sign. My answer is that the sign itself does not support the argument, but the argument can be made regardless of the sign.
So here it is...
The question is whether a defendant could claim assumption of the risk based on the statement included in the sign. My answer is that the sign itself does not support the argument, but the argument can be made regardless of the sign.
What do I mean by that? I mean that the sign may help the defendant, but only if the defendant can prove the plaintiff read it. Otherwise, the sign is pretty much irrelevant.
The message in the sign does not constitute a form of "express" assumption of the risk, because the sign, by itself, does not create an agreement between the parties.
Moreover, to support an argument of "implied" assumption of the risk, the defendant would have to show that the plaintiff knew of the risk, appreciated its magnitude and voluntarily decided to take the risk anyway. A defendant may very well be able to support that argument but the sign is not needed for that.
So why put the sign up if it sounds like it is almost irrelevant? Well, there are a couple of reasons. First, the sign really is just what it says at the top: a warning. And if the defendant can show the plaintiff read the warning and understood the magnitude of the risk involved, the defendant can support the argument for implied assumption of the risk. Second, the sign may discourage people from suing by suggesting that they don't have a right to do so.
Having said all that, it should be noted that many jurisdictions don't recognize assumption of the risk as a separate defense anymore.
The message in the sign does not constitute a form of "express" assumption of the risk, because the sign, by itself, does not create an agreement between the parties.
Moreover, to support an argument of "implied" assumption of the risk, the defendant would have to show that the plaintiff knew of the risk, appreciated its magnitude and voluntarily decided to take the risk anyway. A defendant may very well be able to support that argument but the sign is not needed for that.
So why put the sign up if it sounds like it is almost irrelevant? Well, there are a couple of reasons. First, the sign really is just what it says at the top: a warning. And if the defendant can show the plaintiff read the warning and understood the magnitude of the risk involved, the defendant can support the argument for implied assumption of the risk. Second, the sign may discourage people from suing by suggesting that they don't have a right to do so.
Having said all that, it should be noted that many jurisdictions don't recognize assumption of the risk as a separate defense anymore.
Thursday, February 13, 2014
Iowa Governor apparently believes in myths
Iowa Governor Terry Branstad's 2015 state budget proposes a cap on non-economic medical malpractice awards arguing it is needed to keep doctors from leaving Iowa. This might be a good idea were it not for the fact that it has no basis in reality. The myth that doctors move away because of the effects of medical malpractice litigation has been debunked time and time again. Unfortunately, reality never stops tort reformers from trying to push their agenda. For more go to the Torts Profs blog.
Saturday, February 1, 2014
Thursday, January 30, 2014
Court of Appeals for the Seventh Circuit decides question left open by the US Supreme Court in 2010: prosecutor should not be immune to civil claims for misconduct during investigation phase of a case
Back in 2009, the U.S. Supreme Court heard oral arguments in a case called Pottawattamie County, Iowa v. Harrington in which it was asked to decide an important issue related to possible civil liability for prosecutorial misconduct. (For my old posts on that case go here, here and here.) In that case, two white prosecutors participated in fabricating, and then presenting at trial, perjurious testimony that resulted in the conviction of two black youths for the murder of a white former police chief. The black youths each served 25 years in prison. The key witness at trial then recanted his perjured testimony, and the men were released from prison. They then sued the prosecutors for having violated their civil rights. In response to the claim, the prosecutors contended that they had absolute immunity from liability because it has been held that prosecutors have absolute immunity from civil liability for their conduct in the process of prosecuting the case. The issue in the case, though, was whether the same immunity should apply to the prosecutors' conduct in the process of investigating or "building" a case.
Should their right to immunity (or the level of that immunity) change depending on the role prosecutors play at the time of the alleged violation of civil rights? In Pottawattamie, the prosecutors' misconduct initially took place while they were involved in investigating the crime but it continued during the trial since they presented perjured testimony. Should the immunity that protects the conduct during trial affect the right to recover for the misconduct that took place before the trial? If so, couldn't a prosecutor avoid liability for pre-trial misconduct by making sure he introduced the tainted evidence during trial?
These are all important questions that the Supreme Court was ready to address, but it never got to decide the issues because the case settled soon after the oral argument.
Three years later, in an opinion written by the very influential Judge Richard Posner, a split panel of the Court of Appeals for the Seventh Circuit has held that a prosecutor is not entitled to absolute immunity when his wrongful conduct is committed during the investigation of a case which results in a wrongful conviction. The case is called Fields v. Wharrie and the opinion is available here.
The case is remarkably similar to the one before the Supreme Court back in 2010. Here a prosecutor fabricated evidence against a defendant during the investigative stage of the case. He then coerced witnesses to give testimony that the prosecutor (as well as the witnesses) knew to be false. Based on the false evidence, the defendant was convicted of two murders. The defendant eventually was acquitted in a retrial and subsequently received a certificate of innocence from the court in which he had been tried.
In the opinion, Judge Posner addressed the same issues raised back in 2010. For example, he explains that "[a] prosecutor cannot retroactively immunize himself from conduct by perfecting his wrongdoing through introducing the fabricated evidence at trial and arguing that the tort was not completed until a time at which he had acquired absolute immunity. That would create a ‘license to lawless conduct,’which the Supreme Court has said that qualified immunity is not to do."
For more information and commentary on this important case go to Seeking Justice, Res Ipsa Loquitur and the ABA Journal.
Should their right to immunity (or the level of that immunity) change depending on the role prosecutors play at the time of the alleged violation of civil rights? In Pottawattamie, the prosecutors' misconduct initially took place while they were involved in investigating the crime but it continued during the trial since they presented perjured testimony. Should the immunity that protects the conduct during trial affect the right to recover for the misconduct that took place before the trial? If so, couldn't a prosecutor avoid liability for pre-trial misconduct by making sure he introduced the tainted evidence during trial?
These are all important questions that the Supreme Court was ready to address, but it never got to decide the issues because the case settled soon after the oral argument.
Three years later, in an opinion written by the very influential Judge Richard Posner, a split panel of the Court of Appeals for the Seventh Circuit has held that a prosecutor is not entitled to absolute immunity when his wrongful conduct is committed during the investigation of a case which results in a wrongful conviction. The case is called Fields v. Wharrie and the opinion is available here.
The case is remarkably similar to the one before the Supreme Court back in 2010. Here a prosecutor fabricated evidence against a defendant during the investigative stage of the case. He then coerced witnesses to give testimony that the prosecutor (as well as the witnesses) knew to be false. Based on the false evidence, the defendant was convicted of two murders. The defendant eventually was acquitted in a retrial and subsequently received a certificate of innocence from the court in which he had been tried.
In the opinion, Judge Posner addressed the same issues raised back in 2010. For example, he explains that "[a] prosecutor cannot retroactively immunize himself from conduct by perfecting his wrongdoing through introducing the fabricated evidence at trial and arguing that the tort was not completed until a time at which he had acquired absolute immunity. That would create a ‘license to lawless conduct,’which the Supreme Court has said that qualified immunity is not to do."
For more information and commentary on this important case go to Seeking Justice, Res Ipsa Loquitur and the ABA Journal.
Tuesday, January 28, 2014
Court of Appeals holds that defamation plaintiff must show negligence (at least) in order to recover against blogger
A few days ago, the Court of Appeals for the Ninth Circuit decided an important new case on defamation. The court held that Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974) (holding that the First Amendment requires non public figure plaintiffs in defamation cases to meet at least a “negligence standard”), is not limited to cases with institutional media defendants. Thus, the court held that the district court should have instructed the jury that it could not find the defendant blogger liable for defamation unless it found that she acted negligently. The case is Obsidian Finance Group, LLC v. Crystal Cox, and the opinion is available here.
As reported by the First Amendment Center: "In a landmark decision on Friday, a federal appellate court held for the first time that blogs enjoy the same First Amendment protection from libel suits as traditional news media. ... While the Supreme Court has previously observed that the lines between traditional news media and native web content have become blurred, this makes the first time that federal appellate court has essentially said that journalists and bloggers are one and the same when it comes to the First Amendment." For more on the case go here.
As reported by the First Amendment Center: "In a landmark decision on Friday, a federal appellate court held for the first time that blogs enjoy the same First Amendment protection from libel suits as traditional news media. ... While the Supreme Court has previously observed that the lines between traditional news media and native web content have become blurred, this makes the first time that federal appellate court has essentially said that journalists and bloggers are one and the same when it comes to the First Amendment." For more on the case go here.
Monday, January 20, 2014
Huffington Post article on patient safety and malpractice
According to a recent article in the Huffington Post, the latest statistics show that medical errors, most of which are preventable, are the third leading cause of death in America and that the cost of injuries to families and to the health care system is likely near $1 trillion dollars annually. Read the full article here.
Statistics on injuries caused by dogs in 2013
Go here for a summary of the statistics on injuries caused by dog attacks in 2013 compiled by DogsBite.org. According to this report, there were 32 fatal dog attacks in 2013. Pit bulls contributed to 78% (25) of these deaths, even though they make up about 6% of the total U.S. dog population. Together, pit bulls (25) and rottweilers (1) accounted for 81% of the total recorded deaths in 2013. This same combination accounted for 74% of all fatal attacks during the 9-year period of 2005 to 2013.
Tuesday, January 14, 2014
Judge rejects proposed settlement in NFL case
The judge presiding over the proposed $765 million settlement between the N.F.L. and more than 4,500 retired players who sued the league and accused it of hiding the dangers of concussions has raised significant questions about whether there will be enough money for all of the payouts, medical tests and treatment. The New York Times has the details here. (Thanks to Torts Today for the link.)
Over at Litigation and Trial, Max Kennerly has posted "Why The NFL Concussion Settlement Wasn’t Approved – And Why It Might Never Be". In this short comment he argues that although the main reason for the rejection of the proposed settlement was the inadequacy of the settlement amount, there is another part of proposal that has not been discussed as much. That's a clause which attempts to prevent players from conducting litigation against the NCAA and other amateur football organizations. You can read his comment here.
Over at Litigation and Trial, Max Kennerly has posted "Why The NFL Concussion Settlement Wasn’t Approved – And Why It Might Never Be". In this short comment he argues that although the main reason for the rejection of the proposed settlement was the inadequacy of the settlement amount, there is another part of proposal that has not been discussed as much. That's a clause which attempts to prevent players from conducting litigation against the NCAA and other amateur football organizations. You can read his comment here.
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