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.

Texas to decide whether Amazon can be held liable in products liability claim caused by product sold by a third party on its website

Back in August of last year, I reported that an appellate court in California found that Amazon.com could be sued for products liability for the value of injuries caused by defective goods sold on its website by third-party vendors.  See here.

Today I am writing to let you know that the same issue is now before the Texas Supreme Court.  Courthouse News Service is reporting that the issue is before the court in a case centered around a remote control battery swallowed by a 19-month-old child.  Go here for more information.

Podcast on qualified immunity

 A few minutes ago, I reported that New York City has abolished qualified immunity.  Meanwhile, below you will find a podcast in which Prof. Alexander Reinert (Cardozo School of Law) discusses an empirical assessment and comprehensive study on the actual way that courts of appeals have handled qualified immunity cases.  You can listen to the podcast by clicking on the play button below or by going to the podcast website here.

New York City Council abolishes qualified immunity

Yesterday, the New York City Council passed legislation that will effectively end qualified immunity for police officers; thus removing one of the largest impediments to holding officers personally liable for violating citizens’ civil rights, several local news outlets reported.  In doing so, New York became the first city in the country to abolish the defense.  Law & Crime has more information here.

Courts find that police officers do not have immunity in two recent cases

As you probably know, police officers often escape possible tort liability because they claim to have qualified immunity.  According to the doctrine of qualified immunity, officials performing discretionary functions have immunity as long as their conduct does not violate clearly established statutory or constitutional rights or which a reasonable person would have known.

The use of qualified immunity in cases involving alleged police misconduct has been increasingly criticized of late, and two courts recently decided that the officers involved did not have immunity for their actions.

In one case, the Court of Appeals for the 11th Circuit unanimously ruled that an Alabama police officer is not entitled to immunity for an incident in which he repeatedly deployed a Taser on an innocent teenager who was having seizures at a concert.  You can read about that case here.

In the other case, the Court of Appeals for the Tenth Circuit held that the defendant did not have immunity in a case in which the plaintiff alleged that the officer punched a suspect in the face, whipped him with a chain, and released a police dog on him.  Evidently, the Court felt that a reasonable officer should know that that type of conduct violates someone's rights.  You can read about that case here.

Today in Supreme Court History: Benjamin Cardozo is sworn in as Associate Justice of the Supreme Court

You probably remember Benjamin Cardozo as the New York Court of Appeals judge who wrote Palsgraf v. Long Island Railroad, which developed what has become the standard analysis for proximate cause in Tort law.  But in 1932, President Herbert Hoover appointed Cardozo to the Supreme Court of the United States to succeed Justice Oliver Wendell Holmes.  Interestingly, Hoover, a Republican, appointed Cardozo even though he was a Democrat. I would be curious to know how many times that has happened since.

According to an article in The New York Times about Cardozo's appointment, "seldom, if ever, in the history of the Court has an appointment been so universally commended."

Cardozo was confirmed by a unanimous voice vote in the Senate on February 24 and was sworn in on March 14, 1932.

To celebrate, why not do some reading?  Here is a link to my article Ahead of his time: Cardozo and the Current Debates on Professional Responsibility, 34 Touro Law Review 101 (2018).

New York expands category of people who can recover for emotional distress from witnessing someone else's accident

As you probably know, in most jurisdictions a plaintiff has a cause of action for emotional distress based on having witnessed someone else suffer an injury even if the plaintiff is outside the zone of danger (within which the plaintiff would be in danger of physical injury) if certain conditions are met. 

New York, however, is not one of those jurisdictions.  Instead, New York still follows the minority approach.  Thus, in NY, plaintiffs seeking to recover for emotional distress from witnessing someone else’s accident must show that they (the plaintiffs) were within the zone of danger and in danger of physical injury at the time of the accident and that the person who suffered the injury must have been an “immediate family member.”

I am writing about this today because about two weeks ago, the New York Court of Appeals (the highest court in the state) expanded the category of people who can recover by recognizing that grandparents are “immediate family members.”  

It should be clear that the opinion did NOT extend the reach of possible liability to people outside the zone of danger, but it did expand the category of people who can recover if they are within the zone of danger.

The case is called Greene v. Esplanade Venture Partnership.  You can read the opinion here.  Courthouse News and the ABA Journal have more information about the case here and here respectively.