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Wrongful Death!

2012-01-10T10:25:00.001-08:00

«• January 10, 2012 •»

WASHINGTON, D.C. (Lawsuits) - The Supreme Court of the United States appeared to support giving companies and landowners the right to a court hearing before they must comply with an order under the clean water act, which could sharply curtail a key Environmental Protection Agency power.

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FAMU:
Wrongful Death!

Posted: 1:08 PM EST, Tue January 10, 2012 - Updated 11:55 AM PST, Tue January 10, 2012

Orlando, Fla. (Lawsuits) -- The family of Robert Champion (pictured left) who died in November after he was beaten on a bus, allegedly as part of a Florida A&M University band hazing ritual, will sue the bus company, their attorney said Tuesday. The bus and its air conditioning system is believed to have been running at the time Champion was beaten, an attorney representing the family said, and the bus driver might not have been aboard. The family is suing Fabulous Coach Lines, based in Branford, Florida, he said. "We do anticipate, in the very near future, filing a legal action against the bus company alleging negligence and wrongful death," the attorney told reporters at a news conference Tuesday. Such a lawsuit will allow him to file subpoenas and take witness statements to further the investigation, he said. Part of that investigation will include determining what bus company employee was assigned to the bus, how it was running and how an estimated 30 people were on the bus long enough for Champion to be beaten to death.

FAMU is protected under sovereign immunity, and the family must file a statutory notice of intent to sue and wait six months to file suit against the school, the attorney said.

Ray Land, president of Fabulous Coach Lines, told media sources the company's employees, who were not on the bus at the time, responded quickly after learning there was an emergency -- even following the ambulance transporting Champion to the hospital, taking other band members there. "We did transport our passengers safely from point A to point B as contracted," Land said. When employees were notified of an emergency on board one of the nine buses in the convoy, "we responded just as quickly and effectively as we could." The company has already received some documents, he said, and "we're addressing those with our lawyers now." Asked if a company employee was on the bus at the time of Champion's beating, he said a driver was not in the seat on the bus, but the drivers had congregated together looking over the nine vehicles. The drivers rushed over to the bus after learning of a problem, he said.

Some band members have said Champion, 26, died after taking part in a rite of passage called "crossing Bus C." One band member, who spoke on condition of anonymity, previously explained that students "walk from the front of the bus to the back of the bus backward while the bus is full of other band members, and you get beaten until you get to the back."

The family attorney said Tuesday he's heard the ritual may have happened before on Fabulous Coach Lines. However, Land said the bus company has "never seen this kind of behavior" from the band previously. "It's completely out of the blue," he said of the lawsuit. "It wasn't an auto accident. It wasn't a crash. If two passengers get in a fight, and one gets injured, I don't know how that's the motorcoach company's liability."

The family attorney said his legal team has spoken to "in excess of 15 people" during the preliminary investigation. Friends of Champion have told the attorney during his investigation that Champion was gay, the attorney said. Relatives believe that may have been one of many factors that contributed to his being treated more severely than other band members, Chestnut said. However, he said, Champion's homosexuality is not believed to have been a primary factor in the beating. "This is not a hate crime. This is a hazing crime," he said. "Florida A&M University has a 50-year history, a culture in this band, of hazing."

The family thinks some people might have been jealous of Champion, a stickler for the rules who stood up against hazing, he said. "Robert Champion was defined by the fact that he followed the rules," the attorney said. Champion also may have been about to become the band's lead drum major, he said. Band director Julian White, who's on administrative leave from his post, said at Champion's funeral November 30 he regretted not telling him he had been selected to be the band's next head drum major. Champion's mother, Pam, told [media sources] her son "loved his music. He loved the band. He was very serious about how he did and the position he was in."

Champion collapsed in Orlando on the bus, which was carrying members of FAMU's Marching 100 after a November football game that included a halftime performance by the group. The family's attorney has charged that Champion died after receiving "some dramatic blows, perhaps (having an) elevated heart rate" tied to "a hazing ritual" that took place on the bus. The medical examiner's office ruled his death a homicide and said Champion "collapsed and died within an hour of a hazing incident during which he suffered multiple blunt trauma blows to his body." An autopsy conducted after his death found "extensive contusions of his chest, arms, shoulder and back," as well as "evidence of crushing of areas of subcutaneous fat," which is the fatty tissue directly under the skin.

"When a crime victim is targeted because of his or her identity, it can have devastating effects on communities," said Michael Cole-Schwartz, spokesman for the Human Rights Campaign. "The allegation that Robert Champion may have been singled out because of who he was must be thoroughly investigated and prosecuted accordingly." The death prompted the FAMU board of trustees to approve a new three-part anti-hazing plan. The new policy was passed in a 9-1 vote by the board last week as the school continues to deal with the controversial death.

Champion's mother told media sources she wants hazing to stop. "Think twice when your kids are going off to college," she said. "Look into what's going on at their college ... Now we know."
Along with the university, the Florida Department of Law Enforcement and the Orange County Sheriff's Office are also investigating the case. The family attorney said law enforcement has not contacted Champion's family and they don't know the status of the criminal investigation.

The Florida Department of Law Enforcement has launched a separate investigation into some school employees, who were allegedly engaged in financial fraud.

Wrongful Death Defined!

Wrongful death is a claim in common law jurisdictions against a person who can be held liable for a death[1]. The claim is brought in a civil action, usually by close relatives, as enumerated by statute. Under common law, a dead person cannot bring a suit, and this created a loophole in which activities that resulted in a person's injury would result in civil sanction but activities that resulted in a person's death would not. The standard of proof in the United States is typically preponderance of the evidence as opposed to clear and convincing or beyond a reasonable doubt. In Australia and the United Kingdom, it is 'on the balance of probabilities'[2]. For this reason it is often easier for a family to seek retribution against someone who kills a family member through tort than a criminal prosecution.

However, the two actions are not mutually exclusive; a person may be prosecuted criminally for causing a person's death (whether in the form of murder, manslaughter, criminally negligent homicide, or some other theory) and that person can also be sued civilly in a wrongful death action (as in the O. J. Simpson murder case). Wrongful death is also the only recourse available when a company, not an individual, causes the death of a person[3]; for example, historically, families have tried (both successfully and unsuccessfully) to sue tobacco companies for wrongful deaths of their customers.[4]

In most common law jurisdictions, there was no common law right to recover civil damages for the wrongful death of a person.[22A Am. Jur. 2d Death § 1]: Wrongful death actions were strictly statutory.[6]. Some jurisdictions have recognized a common law right of recovery for wrongful death[7], reasoning that “there is no present public policy against allowing recovery for wrongful death."[Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772 (1970)] Jurisdictions that recognize the common law right to recovery for wrongful death have used the right to fill in gaps in statutes or to apply common law principles to decisions.[Restatement (Second) of Torts § 925 (1979); cited therein] Many jurisdictions enacted statutes to create a right to such recovery.[10] The issue of liability will be determined by the tort law of a given state.

See the Fatal Accidents Act 1846 (Lord Campbell's Act) for the origin of wrongful death liability[11].

Wrongful Death:
Involuntary Manslaughter!

January 11, 2012

California -- Michael Jackson's father, Joseph Jackson, filed a wrongful-death suit against Dr. Conrad Murray on Friday (June 25, 2010) in which he asks for damages in connection with the death of his son one year ago to that day. According to a copy of the suit provided by Jackson's lawyer, the action was filed against Murray and his two medical clinics, Acres Home Heart & Vascular Associates in Houston and GCA Holdings LLC in Las Vegas in federal court in California on Friday afternoon. The suit lists Jackson's mother, Katherine, as well as his three children, Michael Joseph "Prince" Jackson Jr., Paris Michael Katherine Jackson and Prince Michael Jackson II as "nominal" plaintiffs in the case.

Though Joseph Jackson has spoken out several times about the alleged role he believed concert promoter AEG Live played in his son's death — claiming that Michael was too sick and that AEG was pushing the frail singer too hard to play too many shows — AEG is not named in the lawsuit.

Dr. Conrad Murray is charged with involuntary manslaughter in the death of Michael Jackson. The Conrad Murray trial, being held in Los Angeles, California, started on September 26, 2011. Dr. Murray had been administering propofol to help Jackson sleep. Propofol is an anesthetic used during surgery, in a controlled hospital setting. Propofol is an effective anesthetic, but can cause patients to stop breathing, so it needs to be continuously monitored, according to a report by Dr. Sanjay Gupta.

Conrad Murray was found guilty of involuntary manslaughter at his criminal trial in the death of singer Michael Jackson. The jury reached a guilty verdict in the Los Angeles Superior Court in downtown Los Angeles, on Nov. 7, 2011.

"The conviction of Dr. Murray is just the beginning of bringing forth the truth on what happened to Michael Jackson," said an attorney for the Jackson family. "Forces much larger than Dr. Murray were involved in this tragedy."

Dr. Conrad Murray, having been found guilty of the involuntary manslaughter of Michael Jackson, faced sentencing. The prosecution filed a sentencing memo asking for Dr. Murray to be sentenced to the maximum of four years in jail, together with a request that he be forced to pay Jackson's children over $100M in compensation for Jackson's loss of income. Dr. Conrad Murray was sentenced to four years in country jail (not state prison) for the involuntary manslaughter of Michael Jackson.

He has since filed an appeal (In Propria Persona) against the sentence.

In France, a group of 100 Michael Jackson fans based in France have hired a lawyer, Emmanuel Ludot, to sue Conrad Murray (who is currently serving time for the involuntary manslaughter of Jackson) for compensation for the "emotional damage" caused by Conrad Murray. The case will be heard in Orleans, France on April 11 2012.

Meanwhile, in the United States, with the conviction of Michael Jackson's doctor on an involuntary manslaughter charge, the question of civil liability in the pop star's death shifts to a new and much wealthier defendant: Los Angeles entertainment behemoth Anschutz Entertainment Group (AEG). The conclusion of the criminal case sets the stage for proceedings in civil court, where the pop star's mother and children are pressing a wrongful death suit against the corporation and its concert subsidiary, AEG Live, the promoter of Jackson's doomed comeback attempt.

The company's concern with the civil matter was on display at Dr. Murray's criminal trial. The lead attorney for AEG in the wrongful death suit, sat in the well of the court facing the witness box as three company officials testified during the criminal trial.

The civil case involves many of the same issues as the criminal trial: propofol, Jackson's performance anxiety and the medical choices of Dr. Conrad Murray. But the proceedings are expected to delve into areas the criminal judge barred as irrelevant to Murray's role, including Jackson's finances and years of drug problems.

Going to the Jury!

2011-09-07T12:16:00.000-07:00

«• September 7, 2011 •»

New Orleans, LA (Lawsuits) - New Orleans police officer Justin Ferris was fired Wednesday after the department's Public Integrity Bureau revealed Ferris broke department rules in January while in pursuit of a driver who refused to pull over. The chase ended in a traffic fatality. The stolen car Ferris pursued collided with another vehicle near Milan and Freret streets. One woman in a car that was not involved in the chase -- 18-year-old Mariah Woods -- was killed; another was severely injured.

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Warriors Play!

December 21, 2011

OAKLAND, CA (Lawsuits) — The former director of community relations for the Golden State Warriors filed suit Wednesday alleging that the basketball team’s star player, Monta Ellis (pictured below, right) sexually harassed her, including by sending her a graphic photo of his genitalia. Erika Ross Smith claims in her lawsuit, which was filed in Alameda County Superior Court, that the Warriors tried to cover up the alleged misconduct by Ellis and retaliated against her on Aug. 5 by laying her off. Smith’s lawyer said Smith started working for the Warriors in September 2007 and received positive work reviews, but after she rejected a request by the team in February that she resign and take “a little money,” the team began removing some of her job duties. The Warriors ultimately told Smith that she was being laid off because her job was being eliminated, according to her lawyer. Brown filed her suit against the team, Ellis, co-owners Joe Lacob and Peter Gruber and general manager Larry Riley. Smith's lawyer said the suit alleges 14 different legal claims and contains 165 paragraphs that detail the allegations. Warriors officials couldn’t immediately be reached for comment.

Smith, who is single and is in her 30s, told reporters at a news conference in her attorney’s office that Ellis began texting her in November 2010 but she told him she wasn’t into having a relationship with him because he is married. Her attorney said Ellis’s texts, which sometimes started with the phrase “Hey Sexy,” weren’t work-related and were sent at odd hours. He said Smith “was embarrassed and intimidated and felt scared and helpless” because she feared that the team wouldn’t believe her story. “Mr. Ellis was and is the team’s star and makes $11 million a year, and my client definitely is in the 99 percent,” he said. He said Smith “feared she would lose her job, and it’s very apparent that all her fears are justified.” The attorney said Smith’s suit seeks recovery of lost income, including back wages and benefits, compensation for severe emotional distress and injunctive relief to order the Warriors to remedy what the suit alleges is illegal conduct.

Failure to Protect?

New Haven, CT -- The family of a Yale pharmacology student who was killed by a lab technician shortly before her wedding day has sued the university, saying it failed to protect women on its campus. Annie Le, 24, was reported missing on September 8, 2009. Her strangled body was found stuffed inside a wall of a campus lab building five days later. Former Yale University lab technician Raymond Clark III has been sentenced to 44 years in prison after pleading guilty in March to the murder and attempted sexual assault of Le.

Both Yale University and the Yale School of Medicine are named as defendants in the lawsuit, filed Tuesday in New Haven Superior Court in Connecticut. "Prior to September 8, 2009, Yale had long taken inadequate steps to ensure the safety and security of women on its campus," the complaint states. "Sexual attacks on and harassment of women at Yale had been well-documented and longstanding problem, and there was a widespread belief that Yale repeatedly failed to impose meaningful discipline on offenders. As a result, Yale created a culture of tolerance that allowed and encouraged aggressive male behavior towards women."

The suit also cited a Title IX complaint filed by students against the university "which highlighted Yale's failure to adequately prevent and respond to sexual harassment and sexual assaults on female students at Yale. A federal investigation of Yale's conduct in this regard is ongoing." But the university said the suit has "no basis."

"Yale had no information indicating that Raymond Clark was capable of committing this terrible crime, and no reasonable security measures could have prevented his unforeseeable act," Yale said in a statement. "Annie Le's murder shocked and deeply saddened the entire Yale community. As a community we united to support and comfort her family and loved ones, and create a lasting memorial to her life. This lawsuit serves neither justice nor Annie's memory, and the University will defend against it as appropriate."

Le had planned to marry Columbia graduate student Jonathan Widawsky on the day her body was found. Clark was not a Yale student but had worked as a lab technician at the university since 2004, after graduating from high school. He lived with his girlfriend, who also was a Yale lab technician, according to police. A Yale faculty member had described Clark's job as maintaining colonies for animals used in research.

Wrongful Death!

Jackson, Mississippi -- The family of an African-American man who was killed when he was beaten and run over with a truck has filed a wrongful death lawsuit against a group of teens alleged to have been present at the time of the attack. The lawsuit -- filed Tuesday in a Mississippi district court -- alleges that seven white teenagers "set out on a mission" to find and harass African-Americans.

The death of James Craig Anderson, 48, occurred early June 26 in Jackson, Mississippi -- allegedly at the hands of white teens who, after a night of partying and drinking, decided to "go fuck with some niggers," police said, quoting one of the suspects in the case.

"James Anderson lost his life for no other reason than the color of his skin," said Morris Dees, chief trial counsel for the Montgomery, Alabama-based Southern Poverty Law Center, in a statement. The law center filed the suit on Anderson's family's behalf along with Mississippi attorney Winston J. Thompson III. "Those responsible must be held accountable for their callous and deadly actions. We are filing this lawsuit today to ensure his family gets a measure of justice."

Anderson's death drew national attention after CNN first reported it and aired exclusive surveillance video of the killing in a Jackson suburb. Hinds County, Mississippi, District Attorney Robert Shuler Smith, who is prosecuting the case, has called it "vicious" and a "premeditated hate crime."

A civil trial can proceed at the same time as a criminal case, but often the civil case is delayed pending the resolution of a criminal trial. While a criminal case is pending, a defendant in a civil case may need to invoke the Fifth Amendment. Thompson said Tuesday the civil case will be pursued in conjunction with the criminal case. If attorneys for Dedmon and Rice file a motion to stay the suit pending the outcome of a criminal trial, "then we'll take that up with the judge." The suit alleges all seven of the teens "took part in what we call a joint venture, to seek out and do harm to a person of color," Thompson said.

Civil Rights!

Richard Rodriguez (pictured above) the gang member who was kicked in the head by an El Monte police officer after a televised car chase, has filed a $5-million legal claim against the city. But before he appears in court, he'll possibly be undergoing a serious makeover. Rodriguez's attorney has suggested that his client ditch his thuggish look (seen in his mug shot on the left), in favor of a more conservative -- albeit less eye-catching -- visage (seen in the photoshopped version on the right).

In the booking photo, Rodriguez's head is shaved, and the name of his gang hangs over his lip. Tattoos climb his neck. In the "after" rendition, he's wearing a black suit with a metallic gray tie, neatly combed hair and a lush mustache. His attorney hopes Rodriguez's makeover will allow the jury to be sympathetic to Rodriguez, who claims to suffer headaches and blurred vision as a result of his arrest. "People get past looks when you put on a suit and your hair is grown," said the attorney.

What do you think of the attorney's strategy? What does it say about our justice system when a plaintiff feels he or she must disguise certain physical features in order to receive a fair trial?

The U.S. Equal Employment Opportunity Commission - Panda Express

2011-08-18T14:56:00.000-07:00

«• August 18, 2011 •»

TALLAHASSEE, Fla. (Lawsuits) - Florida's next banking commissioner is involved in a lawsuit against his new bosses. Tom Grady, a former legislator and friend of Gov. Rick Scott, was picked this month to become the next commissioner of the Office of Financial Regulation. But Grady and other lawyers last year sued for over $1 million they said the state owed them. The lawsuit was filed against the state agency that oversees Florida's massive pension fund and has made its way to an appeals court. Scott, who lived down the street from Grady in Naples, said he was aware of the lawsuit but that Grady is dropping his involvement. Grady has agreed to give any money owed him to other lawyers involved in the litigation. Grady will earn roughly $133,000 in his new job.

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What is employment discrimination?

Employment discrimination occurs when employers advocate for – or fight against – the hiring of specific employees. Basing a hiring decision on age, race, gender, religious affiliation, national heritage, disability or sexual orientation is against the law. Practicing these illegal maneuvers in recruiting, promotion, and pay violates State and Federal Labor Laws such as Title VII, the Equal Pay Act, the Age Discrimination Employment Act and the Civil Rights Act of 1991.

Hostile Work Environment!

August 26, 2011

Hollywood producer Jon Peters was ordered Friday to pay $822,000 in damages to a former personal assistant after a Los Angeles jury found that she was sexually harassed and subjected to a hostile work environment. Jurors also decided that Peters, 66, the former boyfriend of singer Barbra Streisand, acted with malice, a finding that triggers a further court hearing to determine if punitive damages should be awarded to Shelly Morita, who sued the producer and his company, J.P. Organization Inc., in December 2006.

Morita, 44, alleged that Peters inappropriately touched her at his Malibu home, crawled into bed with her at an Australian hotel and exposed himself to her and her then-2-year-old daughter in an outdoor restroom at his Santa Barbara ranch. Morita, who worked for Peters for a year starting in February 2005, also claimed that the producer’s influence in Hollywood prevented her from obtaining another job after she quit his firm. Defense attorneys contended that Morita had signed a release of all claims against Peters in January 2006, and they asserted that she had no witnesses to prove her allegations of sexual harassment.

Peters was a successful hairstylist in his family’s salon, where he made contacts in the movie industry. He went on to become the producer or the executive producer of such films as "Caddyshack," "Rain Man," "Bonfire of the Vanities" and "Superman Returns."

Panda Express Restaurant

Posted: 08/18/2011 09:27:43 AM PDT
Updated: 08/18/2011 09:28:33 AM PDT

The federal government said Wednesday it is suing a Panda Express restaurant in West San Jose for making its Latino workers clean toilets while Asian employees stood by and enjoyed an easier workload. The U.S. Equal Employment Opportunity Commission said in a federal court filing that the general manager of the Panda Express in the shopping center at Campbell and Saratoga avenues gave Latino workers fewer hours and more menial jobs. "Hispanic workers who worked as counter help were required to clean the bathroom, tables and counters, while Asian employees were permitted to simply stand around and watch," the federal agency's Bay Area office said in a statement announcing the suit.

"I felt so ashamed when the Asian workers watched me obediently run from the bathroom to the tables to the counters, cleaning when they did not have to," Aremy Lomely, a Latino employee at the restaurant, said in a statement. "For months, (the manager) treated me like a worthless employee."

The commission also said the manager more frequently and harshly disciplined Latino employees. In addition, the commission said it is a violation of the Civil Rights Act of 1964 to discriminate against employees based on ethnicity. The suit, filed in the U.S. District Court of Northern California, demands Panda pay the employees monetary damages and set up anti-discrimination training.

A Panda spokesman said Wednesday that the company does not comment on pending litigation. The parent company of the popular Rosemead-based Chinese food chain employs 18,000 workers at 1,200 locations across the country. The same Panda location was sued in September after firing an employee when she complained about a co-worker's "inappropriate sexual behavior." In a settlement reached in April, the company agreed to pay the employee, Veronica Nava, $25,000 and rehire her, but it did not admit any wrongdoing.

In 1964, Title VII of the Civil Rights Act was implemented to prohibit hiring practices based on what is employment discrimination such as gender, race, religion or national origin. And in 1967, the Age Discrimination Employment Act was put into play to protect citizens of the age of 40 or older from experiencing ageist practices of what is employment discrimination. The Equal Pay Act was put into play in 1963.

Bloomberg L.P.

Posted: 08/18/2011 03:35:43 PM PDT

The Equal Employment Opportunity Commission filed a class-action lawsuit in September 2007 on behalf of what became more than 80 employees of Bloomberg L.P., asserting that the company systematically reduced the pay, demoted or excluded from meetings mothers and pregnant women. The case was dismissed by a federal judge on Aug. 17, 2011.

A federal judge dismissed claims that the company Bloomberg L.P., engaged in a pattern of discrimination against pregnant women and new mothers returning from maternity leave. Bloomberg L.P., is the financial and media services giant founded by New York Mayor Michael R. Bloomberg. Judge Loretta A. Preska of United States District Court in Manhattan wrote that the federal Equal Employment Opportunity Commission had relied too much on anecdotes, and not on statistics, when it accused Bloomberg L.P. of discrimination. “ ‘J’accuse!’ is not enough in court,” Judge Preska wrote. “Evidence is required.”

In a strongly worded ruling issued Wednesday, she said that “the law does not mandate ‘work-life balance,’” and that while Bloomberg L.P. “explicitly makes all-out dedication its expectation,” the company did not systematically violate the law because it did not treat women who took maternity leave differently from employees who took leaves for other reasons. “A female employee is free to choose to dedicate herself to the company at any cost, and, so far as this record suggests, she will rise in this organization accordingly,” she wrote. “The law does not require companies to ignore or stop valuing ultimate dedication, however unhealthy that may be for family life.”

EEOC v. Bloomberg Case No. 07cv8383

Document: Ruling Dismissing Case Against Bloomberg L.P.

The case is not necessarily over; the federal government may appeal, and the 65 women who qualified as claimants in the class-action lawsuit can still file individual lawsuits accusing discrimination. But legal experts said the ruling that the company did not have a “pattern or practice of discrimination” stripped the individual plaintiffs of their most powerful argument.

Appellate Review: New York - I - 2011

2011-07-17T16:33:00.001-07:00

«• August 11, 2011 •»

A federal judge ruled Tuesday that there is enough evidence that former reality TV producer Bruce Beresford-Redman murdered his wife at a Cancun resort to justify his return to Mexico to face trial. Beresford-Redman, once a producer on TV's "Survivor," will appeal the extradition order to a higher court, which could keep him in the United States for another year, his defense lawyers said. Mexican prosecutors charged Beresford-Redman last year with the aggravated murder of Monica Burgos Beresford-Redman while the couple and their two young children vacationed at a resort.

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Great American
Gay Suit

August 11, 2011, 12:13 PM

greatamerica

Appeals Court

Upholds Building

Ban on Architect

July 15, 2011, 12:53 PM

(Photo Caption: The L-shaped lot at 158 Freeman Street and 1037 Manhattan Avenue in Greenpoint, Brooklyn, was one on the projects that the Buildings Department said the architect Robert M. Scarano has filed false documents about.)

A Manhattan appeals court upheld a decision on Thursday that essentially prevents the famous — to some, infamous — local architect Robert M. Scarano Jr. from doing business in New York. An administrative judge ruled last year that Mr. Scarano had made numerous false statements to the city to avoid zoning laws in construction projects. The ruling led the Department of Buildings to ban Mr. Scarano from filing any building documents, including permit applications and construction plans, with the city.

Mr. Scarano, who for years has been known to push the envelope with designs that can transform a block or a neighborhood, appealed the decision. The L-shaped lot at 158 Freeman Street and 1037 Manhattan Avenue in Greenpoint, Brooklyn, was one of the projects that the Buildings Department said the architect Robert M. Scarano has filed false documents about.

But a five-justice panel from the appellate division in Manhattan agreed with the administrative judge’s ruling on the action taken by the Department of Buildings, or D.O.B. It wrote in its decision that allegations of Mr. Scarano’s misconduct “are supported by substantial evidence and warrant the finding that D.O.B. can no longer rely on him to submit honest paperwork. Thus, there was a basis for prohibiting him from submitting further documents to D.O.B.”

The department praised the ruling for vindicating its stance against what they said was Mr. Scarano’s misleading tactics. “New Yorkers depend on licensed professionals to follow the law and ensure the quality of life of our neighborhoods is protected,” Robert LiMandri, the buildings commissioner, said in a statement. “Mr. Scarano betrayed that trust, and this decision sends a clear message that there are serious consequences for filing false documents in New York City.”

But Mr. Scarano’s company, Scarano Architect P.L.L.C., released a statement saying that he would continue to serve the numerous clients he has in New York City. Most of his clients are in the city, according to a colleague of Mr. Scarano. “We are extremely disappointed in today’s ruling and we are going to examine all legal options available to us,” Mr. Scarano said in a statement. “Despite this decision we plan to continue working hard to serve our clients and to maintain the high quality of architecture for which our firm is known.” Mr. Scarano, whose firm is more than two and a half decades old, is based in Brooklyn and focuses on projects mostly in the outer boroughs. He works on a range of projects from residential apartment buildings to multifamily housing units to commercial buildings.

The Buildings Department first brought administrative charges against Mr. Scarano in 2008 based on what it said were misleading documents he provided on two projects.

One was at 145 Snediker Avenue in Brooklyn. In that case, the department ruled that construction could not begin until a utility pole was removed from the path of a driveway. In October 2008, according to the department, Mr. Scarano submitted documents indicating that the pole had been moved, but the documents were misleading as to the actual location of the pole.

In another project, at 158 Freeman Street and 1037 Manhattan Avenue in Brooklyn, Mr. Scarano failed to accurately represent in documents that a building already existed on the L-shaped lot on which he wanted to build, according to the department. On two occasions, Mr. Scarano submitted plans to try to get approval to build a building that was too large for the lot, according to the department.

After reviewing those two cases, the administrative judge, Joan R. Salzman, in a ruling in March 2010, found that Mr. Scarano was “deliberately overbuilding” and said some of his filings were “so deceptive that they call to mind out-and-out fraud.” Judge Salzman added, “False filings lead to chaos.”

Mr. Scarano appealed to the appellate court, challenging the constitutionality of the city code that allowed the buildings commissioner to bar him from filing documents. Mr. Scarano also questioned whether his due process rights were violated. The appellate court rejected both arguments. Mr. Scarano can appeal the decision to the Court of Appeals, the state’s highest court, though it was unclear whether he would do so.

Court Clears Way

for Hospital

Corporation Layoffs

July 8, 2011, 3:01 PM

New York - A state appellate court ruled on Thursday that the city’s Health and Hospitals Corporation could go forward with planned layoffs it had announced last year, reversing a lower court ruling that prevented the staff reductions. The city hailed the ruling as vindication that the mayor, his commissioners and the individual agencies had the right to determine the size of their work forces amid tight fiscal constraints.

“This decision is extremely important,” Michael A. Cardozo, the city’s corporation counsel, said in a statement. “It makes clear that in these difficult budget times the personnel and layoff decisions made by the executive branch cannot be second-guessed by the judiciary.” Since last year, when the lower court issued a temporary restraining order preventing the layoffs, the case has cost the city $10 million, Mr. Cardozo’s office said in a press release.

After hiring Deloitte Consulting to conduct a study, the Health and Hospitals Corporation determined in May 2010 that it would cut 144 positions: 45 of 136 carpenters, 45 of 156 electricians and 54 of 104 laborers. Unions representing each of these groups sued, saying that the layoffs would prevent the corporation, which runs the city’s public hospitals, from maintaining safe and adequate facilities. The layoffs, the union said, would affect the safety of hospital patients, staff members and the public.

“The Appellate Division has chosen to overturn the lower court’s well-reasoned findings and in so doing has reopened very real concerns about the safety of both the public and our members,” Lillian Roberts, the executive director of District Council 37, the city’s largest municipal employees’ union, said in a statement released Thursday. The layoffs, she added, raised questions about who would do the work that was “so fundamental to the operations of H.H.C. facilities.”

“The Union will be carefully evaluating H.H.C. actions from today forward, and assessing all our options to best defend both our members, and the interests of the communities which H.H.C. is meant to serve,” she said.

A justice in State Supreme Court ruled last year that the layoffs, among other things, were arbitrary and capricious and that the corporation did not use sound methodology to determine the impact of the layoffs.

But Justice John W. Sweeny Jr., who wrote the 4-to-0 decision for the appellate court in Manhattan, said that the corporation appeared to use sound reasoning. “The record before us clearly shows that H.H.C.’s layoff decision was rational in light of the imperative to reduce costs in conjunction with its mandate to provide medical services to all,” Justice Sweeny wrote. Justice Sweeny also noted that it was up to the city to manage its staff.

“Neither the petitioners nor the courts should be permitted to substitute their judgment for the discretionary management of the public business by public officials, as neither have been lawfully charged with that responsibility,” he wrote.

Pro Bono

July 8, 2011, 3:01 PM

Although law firms seemed to rebound from difficult financial times last year by posting profits, the number of pro bono hours has fallen among the top 200 firms in the United States, according to The American Lawyer.

The average number of pro bono hours per lawyer at these firms dropped 8 percent, according to the journal. The trend seemed to make sense, said the editor in chief of The American Lawyer. “It’s not that the firms dramatically changed their commitment,” the editor said. “It was a staffing issue. Hiring hasn’t returned, but work to some degree has. There’s only so many bodies, so many lawyers. So they have to do the paying work before they do the pro bono work.” Still, the editor said, the drop should be noted. “It is significant to see pro bono numbers go down over all,” she said. “It’s big and it’s disconcerting. But it is not completely surprising.”

Verdicts, Claims & Settlements! - Part VII

2011-07-13T08:56:00.001-07:00

«• July 13, 2011 •»

A federal judge ruled Tuesday that there is enough evidence that former reality TV producer Bruce Beresford-Redman murdered his wife at a Cancun resort to justify his return to Mexico to face trial. Beresford-Redman, once a producer on TV's "Survivor," will appeal the extradition order to a higher court, which could keep him in the United States for another year, his defense lawyers said. Mexican prosecutors charged Beresford-Redman last year with the aggravated murder of Monica Burgos Beresford-Redman while the couple and their two young children vacationed at a resort.

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EquuSuit for Damages!

July 13, 2011

A search and rescue group filed a civil suit against Casey Anthony on Tuesday to recover the money the organization spent in an attempt to find her daughter Caylee during the summer and fall of 2008.

The suit by Texas EquuSearch (TES) alleges the search organization spent over $112,000 and coordinated more than 4,200 volunteers in an unnecessary attempt to locate Caylee for months after her mother knew the two-year-old girl was dead.

"Casey Anthony made ongoing misrepresentations to TES and its founder Tim Miller, and failed to correct materially false information provide to Mr. Miller in order to convince TES, its staff and volunteers to engage in extensive, costly and time-consuming searches for Caylee," the lawsuit says.

During the trial, Casey Anthony's lawyers argued that Caylee accidentally drowned in the Anthony family's above-ground pool, and that Casey Anthony and her father, George Anthony, panicked and covered up the death -- something George Anthony denied on the witness stand.
Official reflects on Casey Anthony case

The case began drew national attention in part because Casey Anthony failed to report Caylee missing for a month, during which she moved out of her parent's home, partied in Orlando nightclubs and shopped. When confronted, she accused a nonexistent nanny of taking the girl.

Caylee's skeletal remains weren't found until December 2008, six months after she was last seen alive.

The suit asks for compensatory damages of $115,00, plus interest and attorneys' fees.

Casey Anthony, 25, is set to be released Sunday after receiving credit for time served on a four-year sentence. She was convicted of lying to police during the investigation into Caylee's disappearance. She was acquitted of murder and manslaughter charges in her death.

Microlost!

July 11, 2011

The U.S. Supreme Court has let stand a $300 million patent infringement ruling against Microsoft, granting a victory Thursday to i4i, which filed the lawsuit back in 2007.

The legal battle already forced Microsoft to modify certain functionality in its Word application in 2009, when the U.S. District Court for the Eastern District of Texas ruled in favor of Toronto-based i4i and told Microsoft to stop selling Word in the U.S.

At issue was an i4i patent that covers technology that lets users manipulate the architecture and content of a document, which i4i alleged Microsoft infringed upon by letting Word users create custom XML documents. Microsoft removed the feature.

"This case raised an important issue of law which the Supreme Court itself had questioned in an earlier decision and which we believed needed resolution. While the outcome is not what we had hoped for, we will continue to advocate for changes to the law that will prevent abuse of the patent system and protect inventors who hold patents representing true innovation," Microsoft said in a statement.

The case has been closely watched by legal experts because Microsoft, backed by other major technology vendors like Google and Apple, had argued in favor of watering down the usual standard required for companies to successfully defend themselves from patent infringement accusations.

Currently under U.S. law, a patent is presumed valid and alleged infringers bear the burden of establishing otherwise "by clear and convincing evidence." However, Microsoft sought to have that standard loosened, so that the invalidity of the i4i patent could be established "by a preponderance of the evidence."

Requiring defendants to establish "clear and convincing evidence" hurts innovation because it unduly shields dubious inventions from legal challenges after the U.S. Patent and Trademark Office has granted them patent protection, Microsoft argued.

But the Supreme Court, in an 8-0 decision in which Chief Justice John Roberts didn't participate, sided with the lower court's decision.

"According to Microsoft, a defendant in an infringement action need only persuade the jury of an invalidity defense by a preponderance of the evidence. In the alternative, Microsoft insists that a preponderance standard must apply at least when an invalidity defense rests on evidence that was never considered by the [U.S. Patent and Trademark Office] in the examination process. We reject both contentions," wrote Associate Justice Sonia Sotomayor in court's opinion.

I4i didn't immediately respond to a request for comment.

Read The Supreme Court [pdf] Opinion: MICROSOFT CORP. v. I4I LIMITED PARTNERSHIP, ET AL.

$7.4 million!

July 7, 2011

BAKERSFIELD, Calif. -- The Bakersfield City School District will be paying millions of dollars to the family of a teacher who was killed in an accident involving one of its school buses last year.

The crash happened just before 8 a.m. on Sept. 20, on Kern Canyon Road just east of Morning Drive.

According to court records, the BCSD has settled a wrongful death lawsuit with Flores' family for $7.4 million.

The California Highway Patrol said the female driver of the school bus was headed west on Kern Canyon Road when she failed to realize that traffic in front of her was stopped.

Officer Robert Rodriquez said that's when she slammed on her brakes, sending the bus sliding for several hundred feet.

The driver lost control and veered onto the east bound lanes and struck an SUV, driven by 32-year-old Laura Martinez Flores, head-on, Rodriguez said.

Flores used 68 units of Type O blood, which is six times the amount of blood in the human body.

Flores, who was a teacher in the district, died at the hospital a week later.

Flores' 2-year-old child, who was in the SUV was not hurt.

The driver of the bus only suffered minor injuries.

Civil & Criminal Suits - 2011 - Part I

2011-07-08T15:23:00.000-07:00

«• July 8, 2011 •»

The United States breached international law by executing a Mexican national without having granted him consular access, the U.N. High Commissioner for Human Rights said Friday. Navi Pillay, in a statement, said she deeply regrets the execution of Humberto Leal Garcia, after a 5-4 decision by the U.S. Supreme Court denied him a stay of execution Thursday night. "The execution of Mr. Leal Garcia places the U.S. in breach of international law," said Pillay, who is on an official mission in Mexico. "What the state of Texas has done in this case is imputable in law to the U.S. and engages the United States' international responsibility." Pillay said Leal was not granted consular access, which -- as a foreign national -- was his right under Article 36 of the Vienna Convention on Consular Relations. The denial of access raises concerns about whether Leal got a fair trial, Pillay said. Leal, who was convicted for the 1994 rape and murder of a 16-year-old girl, was executed Thursday evening by lethal injection in Texas.

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Baseball Tragedy!

July 8, 2011

Texas - The fatal fall of a baseball fan on an outing with his young son has shaken the Texas Rangers, who will hold a moment of silence at Friday night's game, club president Nolan Ryan said. Almost a year after a similar incident, tragedy struck at Thursday night's game after the fan fell over a railing at Rangers Ballpark while trying to catch a ball. "It's a very, very sad day for the Texas Rangers organization," Ryan said. "It hits us at our roots of who we are. We're about making memories, about family entertainment."

Shannon Stone, 39, flipped over the railing of the outfield seats. He fell about 20 feet -- crashing head-first into an area near a scoreboard as his horrified son watched.

Perjury

July 14, 2011

Update: The judge overseeing the perjury trial of famed former pitcher Roger Clemens declared a mistrial Thursday after prosecutors played a portion of a video that the judge deemed prejudicial.

July 8, 2011

Roger Clemens (left) leaves the court room on Thursday after the second day of jury slection.

Washington, D.C. (Criminal Suits) -- Jury selection in the perjury trial of former Major League Baseball player Roger Clemens is underway in Washington, and it started with the judge scolding the defense team.

U.S. District Judge Reggie Walton held a brief hearing before the start of juror screening Wednesday to address the issue of the audio transcription of Clemens' deposition. Clemens' lawyers contend they asked prosecutors and Congress for an audio copy of the deposition, but they said they never received it and are unable to effectively mount a defense without it.

2008: Clemens denies steroid use.

William Pittard of the House General Counsel's office appeared before the judge on Wednesday to testify that no such request was ever made. Judge Walton's voice rose when he stated that the defense had ample time to request an audio copy of the deposition, and he added he intends to move ahead with the trial.

Rusty Hardin, lead counsel for Clemens, then attempted to hand Pittard a subpoena only to have the judge tell him a courtroom setting was not appropriate for it.

Clemens is facing charges of perjury, making false statements and obstruction of Congress about his alleged use of steroids and human growth hormone. The former all-star pitcher testified under oath in 2008 that he never used illegal performance-enhancing substances during his 23-year career.

The prosecution is expected to call several noteworthy figures to testify to bolster its case against the seven-time Cy Young award winner. Among those the prosecution expects to testify are former major league baseball players Barry Bonds, Mark McGwire, Jose Canseco and Andy Pettitte. The government also plans to call New York Yankees general manager Brian Cashman and Major League Baseball Commissioner Bud Selig to testify.

If convicted, Clemens could face a maximum sentence of 30 years in prison and a $1.5 million fine.

Clemens has never tested positive for drug use, but his name was among the 86 that appeared in a report by former Sen. George Mitchell. The 400-page report listed players who were said to have used drugs to improve their performance on the field.

Before the drug allegations against Clemens arose, he was seen as a first-ballot Hall of Famer. Now, as one of several players of the "steroid era," his status for induction is seen as being in doubt.

Oakland Police

Sgt. Derwin Longmire

Posted: 07/07/2011 03:43:17 PM PDT
Updated: 07/08/2011 06:30:05 AM PDT

Oakland, CA - The former Oakland homicide detective who led the oft-criticized probe of journalist Chauncey Bailey's 2007 slaying sued the city of Oakland for discrimination and retaliation this week in Alameda County Superior Court, even as his federal discrimination lawsuit against the city continues. The attorney for Sgt. Derwin Longmire -- who was reprimanded for his handling of the Bailey investigation -- said the state case filed Wednesday differs from the federal case in two ways.

First, a judge ruled that federal law doesn't let Longmire (pictured left) 47, of Walnut Creek, claim he was discriminated against because police officials perceived him as an adherent to the Black Muslim religion, which he wasn't. However, the attorney said a "perceived as" claim is allowed under California's Fair Employment and Housing Act. The men convicted of killing Bailey are Black Muslims. Second, Longmire is claiming in federal court that the city and police officials violated his First Amendment rights by retaliating against him for complaining about due-process violations and discrimination that occurred during their probe of his conduct. But such a federal claim against a government employer requires both that the complaint he made be "of public concern" and that the retaliation "had a chilling effect," he said. Again, the state's Fair Employment and Housing Act offers a lower threshold, requiring only that a complaint was made and led to retaliation with an "adverse employment act," the attorney said.

The federal lawsuit also includes a racial discrimination claim as well as a claim that individual police managers leaked information of an internal investigation into Longmire's conduct to the press in violation of state law and Longmire's Fourth Amendment privacy rights. The city and Longmire are in mediation on that case now, but if that's not successful, a trial date has been set for February. "We're covering the bases," Longmire's attorney said Thursday, noting Longmire can't receive damages in both courts for the same violations. "He's not entitled to a double recovery." Longmire is seeking unspecified monetary damages.

The Oakland City Attorney's office won't comment before its attorneys have time to review the new complaint, a spokesperson said. No court dates have been set in the suit filed Wednesday. Longmire's attorney said he and Longmire have more information than when they filed the federal case. For example, he said, depositions have revealed that Acting Chief Howard Jordan failed to notify Longmire that Capt. Anthony Toribio, who conducted Longmire's July 2009 disciplinary hearing, had concluded the misconduct charges weren't factually supported. Instead, the attorney claims, Jordan tried to get Longmire to agree to return to work without suing the city. Also, Jordan both testified during the internal affairs investigation -- withholding exculpatory information he had from the District Attorney's office and other sources, the new complaint claims -- and also made the command decision to proceed with trying to fire Longmire, which Scott said is a conflict of interests.

Bailey, the Oakland Post's editor, was shot to death Aug. 2, 2007. Police raided Your Black Muslim Bakery the next day on warrants from a separate case and found the shotgun used to kill Bailey; Longmire hours later let former bakery leader Yusuf Bey IV and bakery handyman Devaughndre Broussard, both in custody, have a seven-minute, unrecorded conversation. Broussard then confessed to killing Bailey, later recanted, and ultimately said in April 2009 that he killed Bailey at Bey IV's order. Bey IV and Antoine Mackey, a bakery associate, were convicted last month of Bailey's murder and others, and face life in prison without possibility of parole.

Longmire came under fire for having too close of a relationship to Bey IV as he investigated Bailey's death, including telephone conversations with the jailed Bey IV that were omitted from Longmire's case notes. He claimed he kept "ancillary notes" of the phone calls, but apparently made no notation of text messages he exchanged with a member of the Bey family.

Both the state Department of Justice and Wendell "Pete" France, a retired Baltimore police commander, investigated and concluded Longmire compromised the Bailey murder case. Longmire was suspended and put on paid administrative leave in April 2009. Longmire complained that the probes were faulty, and the city responded with an offer that he return to work in exchange for agreeing not to sue. Longmire refused, and later was ordered to return to work with a proposed 20-day suspension. He ultimately served a five-day suspension and now is a sergeant in the patrol division, to which he was transferred in what the department called a routine rotation.

More On O.P.D.»

Verdicts, Claims & Settlements! - Part VI

2011-03-15T16:25:00.000-07:00

«• March 15, 2011 •»

$2.3 Billion Dollar Settlement: A Pfizer subsidiary, Pharmacia & Upjohn Co., agreed to plead guilty in early September to a felony violation of the Food, Drug and Cosmetic Act for misbranding its COX-2 inhibitor, Bextra, for off-label uses. The company agreed to pay $1.3 billion in criminal fines for systematically promoting off-label Bextra use to physicians through marketing materials, drug rep talking points and more. Pfizer will pay another $1 billion ($2.3 billion total settlement) to settle whistle-blower lawsuits filed under the False Claims Act that alleged the company promoted off-label uses of Bextra, Geodon, Zyvox and Lyrica from 2001 to 2008. According to whistle-blower lawsuits and the settlement, Pfizer allegedly used tactics such as ghostwritten articles and drug rep-falsified doctor requests for off-label information.

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John F. Kennedy in Burlesque

March 15, 2011

An Oakland college professor has sued John F. Kennedy University, arguing she was fired after her bosses discovered she performed with a Bay Area burlesque group. In her federal suit, filed last week, Sheila Addison said she lost her job teaching marriage and family therapy at the Pleasant Hill-based university after administrators found out she was performing anonymously as "Professor Shimmy" with the Hubba Hubba Revue. A male professor who stripped down during a separate show kept his job, Addison argued.

The university issued a short statement Monday, calling the lawsuit "completely without merit." A university spokeswoman did not respond to phone or e-mail messages. Addison's attorney said the burlesque performances were the only reason given for the professor's firing in a letter from JFK President Steven Stargardter in June. The Attorney declined to provide the letter.

Stargardter told Addison her actions were "adverse to the interests of the university," the attorney said. But Addison never mentioned the university or her occupation during the burlesque shows, which mix stripping, commentary and comedy, her attorney said. "Like all artistic performances, it needs to be enjoyable, at least to the audience," he said. "But there also is a political and social message to it."

Performers routinely keep their identities a secret to avoid such reprisals, said a Hubba Hubba Revue performer known as Sparkly Devil. She declined to provide her real name because she feared repercussions in her professional life; she works part-time as a burlesque performer.

Sparkly Devil, who said her parents are college professors, said she was upset that a university would retaliate against an employee for outside activities. She noted that a male Northwestern University professor who recently allowed a couple to demonstrate how to use a sex toy on campus kept his job after apologizing. "I'm just interpreting this as the university punishing a woman for expressing her sexuality in a positive way," she said. "We have to ask what would happen if she were in a play where she was topless."

Addison's suit asks for lost wages and punitive damages. She did not name the male professor who she said had disrobed on stage, and it was not immediately clear who he was. Burlesque performers do not completely disrobe, but the performances include revealing outfits. Nobody had complained directly to Addison, Addison's attorney said. "They claimed it was some students who came forward," he said. "But no one ever came to Dr. Addison and said, 'We don't like what you're doing.'"

Addison's Complaint

Document: Sheila Addison vs. JFK University, March 9, 2011 -

Cesar E. Chavez Middle School

May 20, 2010

San Bernardino, CA - School officials in San Bernardino allegedly failed to protect a 13-year-old girl who was seduced and raped in 2006 by a convicted sex offender, according to a lawsuit filed Thursday. The suit, filed in San Bernardino Superior Court, alleges that registered sex offender Darold Hecht began talking to the girl in August 2006 while he was working for his father-in-law's construction company, which was building new facilities at Cesar E. Chavez Middle School.

In October, Hecht, then 34, "began to repeatedly rape, batter and sexually abuse" the girl, according to the lawsuit.

The suit alleges that officials in the San Bernardino Unified School District failed to properly investigate once they became aware of the abuse.
School district officials were not available for comment Thursday evening.

The lawsuit states that Hecht was convicted of sexually abusing the girl and is now incarcerated at Tehachapi State Prison. The suit seeks damages in excess of $5 million.

Fast Facts:

Cesar E. Chavez Middle
6650 North Magnolia Ave.
San Bernardino, 92407
Public school in the San Bernardino City Unified district.
Grades: 6-8
Students: 1,385
Faculty members: 57

^{(Source: California Department of Education)}

Award Upheld!

OAKLAND (WCJB) ― A federal appeals panel on Tuesday affirmed a $3.2 million award to an Oakland man and his girlfriend in a false arrest and imprisonment case in which the man claimed Oakland officers planted a gun on him. A three-judge panel of the 9th U.S. Circuit Court of Appeals said Magistrate Judge Edward Chen did not abuse his discretion in awarding the money to Torry Smith and Patricia Gray on March 17, 2008. Chen found that a civil rights trial that ended in November 2007 with a favorable verdict for Smith and Gray was fair, but reduced the jury's $6 million award to Smith and Gray to $3 million, saying that the amount awarded to Smith for emotional distress was excessive. But he kept in place the jury's punitive damages award of $100,000 against each of the two Oakland police officers, John Parkinson and Marcus Midyett, who arrested Smith in 2004.

Smith, now 27, claimed in his lawsuit that he was falsely accused by the officers of possessing a rifle and that he was wrongly kept in jail for more than four months while an unjustified charge of parole violation was being processed. While in jail he was also awaiting two preliminary hearings, both of which resulted in dismissal of the charges. Smith was arrested at his home in Oakland on Sept. 10, 2004, by Parkinson and Midyett, who said they saw him trying to hide an assault rifle under some stairs at the back of his house. He claimed the officers planted the rifle. At the time, Smith was on parole with the California Youth Authority for a juvenile offense. The officers came to his house after they found his bank card in the car belonging to the girlfriend of a paroled drug dealer they were investigating.

Chen wrote in his ruling that the jury found Smith's "version of the events more plausible" than the officers' version. Smith was released in late January 2005 after the criminal charges and the parole revocation charge were dismissed.

In their appeal, Parkinson and Midyett challenged the jury instructions and the admissibility of evidence in the civil trial. The panel did not find their claims to be valid, and stated, "the officers agreed to the standard about which they now complain and tried the case on the basis of that standard." Parkinson and Midyett also argued that they should only be liable for four days of damages for Smith, which was the period of time between when Smith was arrested and when the Alameda County District Attorney's Office charged him. After that, they argued, the case was in the hands of prosecutors.

But the appeals panel said it was appropriate for the officers to be liable for four months of damages because Smith's incarceration for an alleged parole violation was based largely on the officers' arrest report.

Alex Katz, a spokesman for Oakland city attorney John Russo, said Russo will not have a comment until later Tuesday.

Oakland civil rights attorney John Burris, who represents Smith, said Smith is "elated" that his case is almost over now, except for a hearing on the amount of attorneys' fees that the city of Oakland must pay. Burris said the fees, which will be in addition to the $3.2 million award, will be "significant" because they will cover his time both during the trial and during the appeals process. Smith went through "a difficult time" after his arrest but is now working and "doing very well," Burris said.

Burris said he believes Parkinson's and Midyett's conduct "was so outrageous they should have been fired at the time and I still think they should be fired." Oakland police spokeswoman Holly Joshi said Tuesday that both officers are still with the department; Parkinson is a sergeant and Midyett is an officer. More On O.P.D.»

KOON v. UNITED STATES, 518 U.S. 81 (1996)

2011-03-15T14:53:00.000-07:00

STACEY C. KOON,

v.

UNITED STATES

LAURENCE M. POWELL,

v.

UNITED STATES

SUPREME COURT OF THE UNITED STATES
518 U.S. 81

Case No. 94-1664

February 20, 1996, Argued
June 13, 1996 *, Decided

* Together with No. 94-8842, Powell v. United States, also on certiorari to the same court.

JUSTICE KENNEDY delivered the opinion of the Court.

The United States Sentencing Commission Guidelines establish ranges of criminal sentences for federal offenses and offenders. A district court must impose a sentence within the applicable Guideline range, if it finds the case to be a typical one. See 18 U.S.C. § 3553(a). District courts may depart from the Guideline range in certain circumstances, however, see ibid., and here the District Court departed downward eight levels. The Court of Appeals for the Ninth Circuit rejected the District Court's departure rulings, and, over the published objection of nine of its judges, declined to rehear the case en banc. In this suit we explore the appropriate standards of appellate review of a district court's decision to depart from the Guidelines.

I

A

The petitioners' guilt has been established, and we are concerned here only with the sentencing determinations made by the District Court and Court of Appeals. A sentencing court's departure decisions are based on the facts of the case, however, so we must set forth the details of the crime at some length.

On the evening of March 2, 1991, Rodney King and two of his friends sat in King's wife's car in Altadena, California, a city in Los Angeles County, and drank malt liquor for a number of hours. Then, with King driving, they left Altadena via a major freeway. King was intoxicated.

California Highway Patrol officers observed King's car traveling at a speed they estimated to be in excess of 100 m.p. h. The officers followed King with red lights and sirens activated and ordered him by loudspeaker to pull over, but he continued to drive. The Highway Patrol officers called on the radio for help. Units of the Los Angeles Police Department joined in the pursuit, one of them manned by petitioner Laurence Powell and his trainee, Timothy Wind.

King left the freeway, and after a chase of about eight miles, stopped at an entrance to a recreation area. The officers ordered King and his two passengers to exit the car and to assume a felony prone position -- that is, to lie on their stomachs with legs spread and arms behind their backs. King's two friends complied. King, too, got out of the car but did not lie down. Petitioner Stacey Koon arrived, at once followed by Ted Briseno and Roland Solano. All were officers of the Los Angeles Police Department, and as sergeant, Koon took charge. The officers again ordered King to assume the felony prone position. King got on his hands and knees but did not lie down. Officers Powell, Wind, Briseno and Solano tried to force King down, but King resisted and became combative, so the officers retreated. Koon then fired taser darts (designed to stun a combative suspect) into King.

The events that occurred next were captured on videotape by a bystander. As the videotape begins, it shows that King rose from the ground and charged toward Officer Powell. Powell took a step and used his baton to strike King on the side of his head. King fell to the ground. From the 18th to the 30th second on the videotape, King attempted to rise, but Powell and Wind each struck him with their batons to prevent him from doing so. From the 35th to the 51st second, Powell administered repeated blows to King's lower extremities; one of the blows fractured King's leg. At the 55th second, Powell struck King on the chest, and King rolled over and lay prone. At that point, the officers stepped back and observed King for about 10 seconds. Powell began to reach for his handcuffs. (At the sentencing phase, the District Court found that Powell no longer perceived King to be a threat at this point.)

At one-minute-five-seconds (1:05) on the videotape, Briseno, in the District Court's words, "stomped" on King's upper back or neck. King's body writhed in response. At 1:07, Powell and Wind again began to strike King with a series of baton blows, and Wind kicked him in the upper thoracic or cervical area six times until 1:26. At about 1:29, King put his hands behind his back and was handcuffed. Where the baton blows fell and the intentions of King and the officers at various points were contested at trial, but, as noted, petitioners' guilt has been established.

Powell radioed for an ambulance. He sent two messages over a communications network to the other officers that said "'ooops'" and "'I havent [sic] beaten anyone this bad in a long time.'" 34 F.3d 1416, 1425 (CA9 1994). Koon sent a message to the police station that said: "'Unit just had a big time use of force. . . . Tased and beat the suspect of CHP pursuit big time.'"

King was taken to a hospital where he was treated for a fractured leg, multiple facial fractures, and numerous bruises and contusions. Learning that King worked at Dodger Stadium, Powell said to King: "'We played a little ball tonight, didn't we Rodney? . . . You know, we played a little ball, we played a little hardball tonight, we hit quite a few home runs. . . . Yes, we played a little ball and you lost and we won.'"

B

Koon, Powell, Briseno, and Wind were tried in state court on charges of assault with a deadly weapon and excessive use of force by a police officer. The officers were acquitted of all charges, with the exception of one assault charge against Powell that resulted in a hung jury. The verdicts touched off widespread rioting in Los Angeles. More than 40 people were killed in the riots, more than 2,000 were injured, and nearly $ 1 billion in property was destroyed. New Initiatives for a New Los Angeles: Final Report and Recommendations, Senate Special Task Force on a New Los Angeles, Dec. 9, 1992, pp. 10-11.

On August 4, 1992, a federal grand jury indicted the four officers under 18 U.S.C. § 242, charging them with violating King's constitutional rights under color of law. Powell, Briseno, and Wind were charged with willful use of unreasonable force in arresting King. Koon was charged with willfully permitting the other officers to use unreasonable force during the arrest. After a trial in United States District Court for the Central District of California, the jury convicted Koon and Powell but acquitted Wind and Briseno.

We now consider the District Court's sentencing determinations. Under the Sentencing Guidelines, a district court identifies the base offense level assigned to the crime in question, adjusts the level as the Guidelines instruct, and determines the defendant's criminal history category. United States Sentencing Commission, Guidelines Manual § 1B1.1 (Nov. 1992) (1992 USSG). Coordinating the adjusted offense level and criminal history category yields the appropriate sentencing range.

The District Court sentenced petitioners pursuant to 1992 USSG § 2H1.4, which applies to violations of 18 U.S.C. § 242. Section 2H1.4 prescribes a base offense level which is the greater of the following: 10; or 6 plus the offense level applicable to any underlying offense. The District Court found the underlying offense was aggravated assault, which carries a base offense level of 15, 1992 USSG § 2A2.2(a), to which 6 was added for a total of 21.

The court increased the offense level by four because petitioners had used dangerous weapons, § 2A2.2(b)(2)(B). The Government asked the court also to add four levels for King's serious bodily injury pursuant to § 2A2.2(b)(3)(B). The court found, however, that King's serious injuries were sustained when the officers were using lawful force. (At trial, the Government contended that all the blows administered after King fell to the ground 30 seconds into the videotape violated § 242. The District Court found that many of those blows "may have been tortious," but that the criminal violations did not commence until 1:07 on the videotape, after Briseno stomped King. 833 F. Supp. 769, 778 (CD Cal. 1993).) The court did add two levels for bodily injury pursuant to § 2A2.2(b)(3)(A). The adjusted offense level totaled 27, and because neither petitioner had a criminal record, each fell within criminal history category I. The sentencing range for an offense level of 27 and a criminal history category I was, under the 1992 Guidelines, 70-to-87 months' imprisonment. Rather than sentencing petitioners to a term within the Guideline range, however, the District Court departed downward eight levels. The departure determinations are the subject of this controversy.

The court granted a five-level departure because "the victim's wrongful conduct contributed significantly to provoking the offense behavior," § 5 K2.10, p. s. 833 F. Supp., at 787. The court also granted a three-level departure, based on a combination of four factors. First, as a result of the "widespread publicity and emotional outrage which have surrounded this case," petitioners were "particularly likely to be targets of abuse" in prison. Second, petitioners would face job-termination proceedings, after which they would lose their positions as police officers, be disqualified from prospective employment in the field of law enforcement, and suffer the "anguish and disgrace these deprivations entail." Third, petitioners had been "significantly burdened" by having been subjected to successive state and federal prosecutions. Fourth, petitioners were not "violent, dangerous, or likely to engage in future criminal conduct," so there was "no reason to impose a sentence that reflects a need to protect the public from [them]." The court concluded these factors justified a departure when taken together, although none would have been sufficient standing alone.

The departures yielded an offense level of 19 and a sentencing range of 30-to-37 months' imprisonment. The court sentenced each petitioner to 30 months' imprisonment. The petitioners appealed their convictions, and the Government appealed the sentences, arguing that the District Court erred in granting the downward departures and in failing to adjust the offense level upward for serious bodily injury. The Court of Appeals affirmed petitioners' convictions, and affirmed the District Court's refusal to adjust the offense level, but it reversed the District Court's departure determinations. Only the last ruling is before us.

The Court of Appeals reviewed "de novo whether the district court had authority to depart." 34 F.3d, at 1451. The court reversed the five-level departure for victim misconduct, reasoning that misbehavior by suspects is typical in cases involving excessive use of force by police and is thus comprehended by the applicable Guideline. Id., at 1460.

As for the three-level departure, the court rejected each factor cited. Acknowledging that a departure for susceptibility to abuse in prison may be appropriate in some instances and that police officers as a group are susceptible to prison abuse, the court nevertheless said the factor did not justify departure because "reliance solely on hostility toward a group of which the defendant is a member provides an unlimited open-ended rationale for departing." Id., at 1455. The court further noted that, unlike cases in which a defendant is vulnerable to prison abuse due to physical characteristics over which he has no control, here the petitioners' vulnerability stemmed from public condemnation of their crimes. Id., at 1456.

As for petitioners' collateral employment consequences, the court first held consideration of the factor by the trial court inconsistent with the sentencing goals of 18 U.S.C. § 3553(a) because the factor did not "speak to the offender's character, the nature or seriousness of the offense, or some other legitimate sentencing concern." 34 F.3d, at 1453. The court noted further that because the societal consequences of a criminal conviction are almost unlimited, reliance on them "would create a system of sentencing that would be boundless in the moral, social, and psychological examinations it required courts to make." Id., at 1454. Third, the court noted the ease of using the factor to justify departures based on a defendant's socioeconomic status, a consideration that, under 1992 USSG § 5H1.10, is never a permitted basis for departure. As a final point, the Court of Appeals said the factor was "troubling" because petitioners, as police officers, held positions of trust they had abused. Section 3B1.3 of the Guidelines increases, rather than decreases, punishment for those who abuse positions of trust. 34 F.3d, at 1454.

The Court of Appeals next found the successive state and federal prosecutions could not be a downward departure factor. It deemed the factor irrelevant to the sentencing goals of § 3553(a)(2) and contradictory to the Attorney General's determination that compelling federal interests warranted a second prosecution. Id., at 1457. The court rejected the last departure factor as well, ruling that low risk of recidivism was comprehended in the criminal history category and so should not be double counted. Id., at 1456-1457.

We granted certiorari to determine the standard of review governing appeals from a district court's decision to depart from the sentencing ranges in the Guidelines. 515 U.S. 1190 (1995). The appellate court should not review the departure decision de novo, but instead should ask whether the sentencing court abused its discretion. Having invoked the wrong standard, the Court of Appeals erred further in rejecting certain of the downward departure factors relied upon by the District Judge.

II

The Sentencing Reform Act of 1984, as amended, 18 U.S.C. § 3551 et seq., 28 U.S.C. §§ 991-998, made farreaching changes in federal sentencing. Before the Act, sentencing judges enjoyed broad discretion in determining whether and how long an offender should be incarcerated. Mistretta v. United States, 488 U.S. 361, 363, 102 L. Ed. 2d 714, 109 S. Ct. 647 (1989). The discretion led to perceptions that "federal judges mete out an unjustifiably wide range of sentences to offenders with similar histories, convicted of similar crimes, committed under similar circumstances." S. Rep. No. 98-225, p. 38 (1983). In response, Congress created the United States Sentencing Commission and charged it with developing a comprehensive set of sentencing guidelines, 28 U.S.C. § 994. The Commission promulgated the United States Sentencing Guidelines, which "specify an appropriate [sentencing range] for each class of convicted persons" based on various factors related to the offense and the offender. United States Sentencing Commission, Guidelines Manual ch. 1, pt. A, p. 1 (Nov. 1995) (1995 USSG). A district judge now must impose on a defendant a sentence falling within the range of the applicable Guideline, if the case is an ordinary one.

The Act did not eliminate all of the district court's discretion, however. Acknowledging the wisdom, even the necessity, of sentencing procedures that take into account individual circumstances, see 28 U.S.C. § 991(b)(1)(B), Congress allows district courts to depart from the applicable Guideline range if "the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. " 18 U.S.C. § 3553(b). To determine whether a circumstance was adequately taken into consideration by the Commission, Congress instructed courts to "consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission."

Turning our attention, as instructed, to the Guidelines Manual, we learn that the Commission did not adequately take into account cases that are, for one reason or another, "unusual." 1995 USSG ch. 1, pt. A, intro. comment. 4(b). The Introduction to the Guidelines explains:

"The Commission intends the sentencing courts to treat each guideline as carving out a 'heartland,' a set of typical cases embodying the conduct that each guideline describes. When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted." Ibid.

The Commission lists certain factors that never can be bases for departure (race, sex, national origin, creed, religion, so-cioeconomic status, 1995 USSG § 5H1.10; lack of guidance as a youth, § 5H1.12; drug or alcohol dependence, § 5H1.4; and economic hardship, § 5K2.12), but then states that with the exception of those listed factors, it "does not intend to limit the kinds of factors, whether or not mentioned anywhere else in the guidelines, that could constitute grounds for departure in an unusual case." 1995 USSG ch. 1, pt. A, intro. comment. 4(b). The Commission gives two reasons for its approach:

Continued at Part II

KOON v. UNITED STATES, 518 U.S. 81 (1996) - II

2011-03-15T14:44:00.000-07:00

STACEY C. KOON,

v.

UNITED STATES

LAURENCE M. POWELL,

v.

UNITED STATES

SUPREME COURT OF THE UNITED STATES
518 U.S. 81

Case No. 94-1664

February 20, 1996, Argued
June 13, 1996 *, Decided

* Together with No. 94-8842, Powell v. United States, also on certiorari to the same court.

"First, it is difficult to prescribe a single set of guidelines that encompasses the vast range of human conduct potentially relevant to a sentencing decision. The Commission also recognizes that the initial set of guidelines need not do so. The Commission is a permanent body, empowered by law to write and rewrite guidelines, with progressive changes, over many years. By monitoring when courts depart from the guidelines and by analyzing their stated reasons for doing so and court decisions with references thereto, the Commission, over time, will be able to refine the guidelines to specify more precisely when departures should and should not be permitted.
"Second, the Commission believes that despite the courts' legal freedom to depart from the guidelines, they will not do so very often. This is because the guidelines, offense by offense, seek to take account of those factors that the Commission's data indicate made a significant difference in pre-guidelines sentencing practice." Ibid.

So the Act authorizes district courts to depart in cases that feature aggravating or mitigating circumstances of a kind or degree not adequately taken into consideration by the Commission. The Commission, in turn, says it has formulated each Guideline to apply to a heartland of typical cases. Atypical cases were not "adequately taken into consideration," and factors that may make a case atypical provide potential bases for departure. Potential departure factors "cannot, by their very nature, be comprehensively listed and analyzed in advance," 1995 USSG § 5K2.0, of course. Faced with this reality, the Commission chose to prohibit consideration of only a few factors, and not otherwise to limit, as a categorical matter, the considerations that might bear upon the decision to depart.

Sentencing courts are not left adrift, however. The Commission provides considerable guidance as to the factors that are apt or not apt to make a case atypical, by listing certain factors as either encouraged or discouraged bases for departure. Encouraged factors are those "the Commission has not been able to take into account fully in formulating the guidelines." § 5K2.0. Victim provocation, a factor relied upon by the District Court in this suit, is an example of an encouraged downward departure factor, § 5K2.10, whereas disruption of a governmental function is an example of an encouraged upward departure factor, § 5K2.7. Even an encouraged factor is not always an appropriate basis for departure, for on some occasions the applicable Guideline will have taken the encouraged factor into account. For instance, a departure for disruption of a governmental function "ordinarily would not be justified when the offense of conviction is an offense such as bribery or obstruction of justice; in such cases interference with a governmental function is inherent in the offense." Ibid. A court still may depart on the basis of such a factor but only if it "is present to a degree substantially in excess of that which ordinarily is involved in the offense." § 5K2.0.

Discouraged factors, by contrast, are those "not ordinarily relevant to the determination of whether a sentence should be outside the applicable guideline range." 1995 USSG ch. 5, pt. H, intro. comment. Examples include the defendant's family ties and responsibilities, 1995 USSG § 5H1.6, his or her education and vocational skills, § 5H1.2, and his or her military, civic, charitable, or public service record, § 5H1.11. The Commission does not view discouraged factors "as necessarily inappropriate" bases for departure but says they should be relied upon only "in exceptional cases." 1995 USSG ch. 5, pt. H, intro. comment.

The Commission's treatment of departure factors led then-Chief Judge Breyer to explain that a sentencing court considering a departure should ask the following questions:

"1) What features of this case, potentially, take it outside the Guidelines' 'heartland' and make of it a special, or unusual, case?
"2) Has the Commission forbidden departures based on those features?
"3) If not, has the Commission encouraged departures based on those features?
"4) If not, has the Commission discouraged departures based on those features?" United States v. Rivera, 994 F.2d 942, 949 (CA1 1993).

We agree with this summary. If the special factor is a forbidden factor, the sentencing court cannot use it as a basis for departure. If the special factor is an encouraged factor, the court is authorized to depart if the applicable Guideline does not already take it into account. If the special factor is a discouraged factor, or an encouraged factor already taken into account by the applicable Guideline, the court should depart only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present. Cf. ibid. If a factor is unmentioned in the Guidelines, the court must, after considering the "structure and theory of both relevant individual guidelines and the Guidelines taken as a whole," ibid., decide whether it is sufficient to take the case out of the Guideline's heartland. The court must bear in mind the Commission's expectation that departures based on grounds not mentioned in the Guidelines will be "highly infrequent." 1995 USSG ch. 1, pt. A, p. 6.

Against this background, we consider the standard of review.

III

Before the Guidelines system, a federal criminal sentence within statutory limits was, for all practical purposes, not reviewable on appeal. Dorszynski v. United States, 418 U.S. 424, 431, 41 L. Ed. 2d 855, 94 S. Ct. 3042 (1974) (reiterating "the general proposition that once it is determined that a sentence is within the limitations set forth in the statute under which it is imposed, appellate review is at an end"); United States v. Tucker, 404 U.S. 443, 447, 30 L. Ed. 2d 592, 92 S. Ct. 589 (1972) (same). The Act altered this scheme in favor of a limited appellate jurisdiction to review federal sentences. 18 U.S.C. § 3742. Among other things, it allows a defendant to appeal an upward departure and the Government to appeal a downward one. §§ 3742(a), (b).

That much is clear. Less clear is the standard of review on appeal. The Government advocates de novo review, saying that, like the Guidelines themselves, appellate review of sentencing, and in particular of departure decisions, was intended to reduce unjustified disparities in sentencing. In its view, de novo review of departure decisions is necessary "to protect against unwarranted disparities arising from the differing sentencing approaches of individual district judges." Brief for United States 12.

We agree that Congress was concerned about sentencing disparities, but we are just as convinced that Congress did not intend, by establishing limited appellate review, to vest in appellate courts wide-ranging authority over district court sentencing decisions. Indeed, the text of § 3742 manifests an intent that district courts retain much of their traditional sentencing discretion. Section 3742(e)(4), as enacted in 1984, provided "the court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous." In 1988, Congress amended the statute to impose the additional requirement that courts of appeals "give due deference to the district court's application of the guidelines to the facts." Examining § 3742 in Williams v. United States, 503 U.S. 193, 117 L. Ed. 2d 341, 112 S. Ct. 1112 (1992), we stated as follows:

"Although the Act established a limited appellate review of sentencing decisions, it did not alter a court of appeals' traditional deference to a district court's exercise of its sentencing discretion. . . . The development of the guideline sentencing regime has not changed our view that, except to the extent specifically directed by statute, 'it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence.'" Id., at 205 (quoting Solem v. Helm, 463 U.S. 277, 290, n. 16, 77 L. Ed. 2d 637, 103 S. Ct. 3001 (1983)).

See also S. Rep. No. 225, at 150 ("The sentencing provisions of the reported bill are designed to preserve the concept that the discretion of a sentencing judge has a proper place in sentencing and should not be displaced by the discretion of an appellate court").

That the district court retains much of its traditional discretion does not mean appellate review is an empty exercise. Congress directed courts of appeals to "give due deference to the district court's application of the guidelines to the facts." 18 U.S.C. § 3742(e)(4). The deference that is due depends on the nature of the question presented. The district court may be owed no deference, for instance, when the claim on appeal is that it made some sort of mathematical error in applying the Guidelines; under these circumstances, the appellate court will be in as good a position to consider the question as the district court was in the first instance.

A district court's decision to depart from the Guidelines, by contrast, will in most cases be due substantial deference, for it embodies the traditional exercise of discretion by a sentencing court. See Mistretta, 488 U.S. at 367 (noting that although the Act makes the Guidelines binding on sentencing courts, "it preserves for the judge the discretion to depart from the guideline applicable to a particular case"). Before a departure is permitted, certain aspects of the case must be found unusual enough for it to fall outside the heartland of cases in the Guideline. To resolve this question, the district court must make a refined assessment of the many facts bearing on the outcome, informed by its vantage point and day-to-day experience in criminal sentencing. Whether a given factor is present to a degree not adequately considered by the Commission, or whether a discouraged factor nonetheless justifies departure because it is present in some unusual or exceptional way, are matters determined in large part by comparison with the facts of other Guidelines cases. District courts have an institutional advantage over appellate courts in making these sorts of determinations, especially as they see so many more Guidelines cases than appellate courts do. In 1994, for example, 93.9% of Guidelines cases were not appealed. Letter from Pamela G. Montgomery, Deputy General Counsel, United States Sentencing Commission (Mar. 29, 1996). "To ignore the district court's special competence -- about the 'ordinariness' or 'unusualness' of a particular case -- would risk depriving the Sentencing Commission of an important source of information, namely, the reactions of the trial judge to the fact-specific circumstances of the case. . . ."

Considerations like these persuaded us to adopt the abuse-of-discretion standard in Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 110 L. Ed. 2d 359, 110 S. Ct. 2447 (1990), which involved review of a district court's imposition of Rule 11 sanctions, and in Pierce v. Underwood, 487 U.S. 552, 101 L. Ed. 2d 490, 108 S. Ct. 2541 (1988), which involved review of a district court's determination under the Equal Access to Justice Act, 28 U.S.C. § 2412(d), that the position of the United States was "substantially justified," thereby precluding an award of attorney's fees against the Government. There, as here, we noted that deference was owed to the "'judicial actor . . . better positioned than another to decide the issue in question.'" Pierce, supra, at 559-560 (quoting Miller v. Fenton, 474 U.S. 104, 114, 88 L. Ed. 2d 405, 106 S. Ct. 445 (1985); Cooter & Gell, supra, at 403. Furthermore, we adopted deferential review to afford "the district court the necessary flexibility to resolve questions involving 'multifarious, fleeting, special, narrow facts that utterly resist generalization.'" 496 U.S. at 404 (quoting Pierce, supra, at 561-562). Like the questions involved in those cases, a district court's departure decision involves "the consideration of unique factors that are 'little susceptible . . . of useful generalization,'" 496 U.S. at 404, and as a consequence, de novo review is "unlikely to establish clear guidelines for lower courts," id., at 405.

The Government seeks to avoid the factual nature of the departure inquiry by describing it at a higher level of generality linked closely to questions of law. The relevant question, however, is not, as the Government says, "whether a particular factor is within the 'heartland'" as a general proposition, Brief for United States 28, but whether the particular factor is within the heartland given all the facts of the case. For example, it does not advance the analysis much to determine that a victim's misconduct might justify a departure in some aggravated assault cases. What the district court must determine is whether the misconduct that occurred in the particular instance suffices to make the case atypical. The answer is apt to vary depending on, for instance, the severity of the misconduct, its timing, and the disruption it causes. These considerations are factual matters.

This does not mean that district courts do not confront questions of law in deciding whether to depart. In the present suit, for example, the Government argues that the District Court relied on factors that may not be considered in any case. The Government is quite correct that whether a factor is a permissible basis for departure under any circumstances is a question of law, and the court of appeals need not defer to the district court's resolution of the point. Little turns, however, on whether we label review of this particular question abuse of discretion or de novo, for an abuse-of-discretion standard does not mean a mistake of law is beyond appellate correction. Cooter & Gell, supra, at 402. A district court by definition abuses its discretion when it makes an error of law. 496 U.S. at 405. That a departure decision, in an occasional case, may call for a legal determination does not mean, as a consequence, that parts of the review must be labeled de novo while other parts are labeled an abuse of discretion. See id., at 403 (court of appeals should "apply a unitary abuse-of-discretion standard"). The abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.

IV

The principles we have explained require us to reverse the rulings of the Court of Appeals in significant part.

A

The District Court departed downward five levels because King's "wrongful conduct contributed significantly to provoking the offense behavior." 833 F. Supp., at 786. Victim misconduct was an encouraged basis for departure under the 1992 Guidelines and is so now. 1992 USSG § 5K2.10; 1995 USSG § 5K2.10.

Most Guidelines prescribe punishment for a single discrete statutory offense or a few similar statutory offenses with rather predictable fact patterns. Petitioners were convicted of violating 18 U.S.C. § 242, however, a statute unusual for its application in so many varied circumstances. It prohibits, among other things, subjecting any person under color of law "to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States." A violation of § 242 can arise in a myriad of forms, and the Guideline applicable to the statute applies to any violation of § 242 regardless of the form it takes. 1992 USSG § 2H1.4. Section 2H1.4 takes account of the different kinds of conduct that might constitute a § 242 violation by instructing courts to use as a base offense level the greater of 10, or 6 plus the offense level applicable to any underlying offense. In this way, § 2H1.4 incorporates the base offense level of the underlying offense; as a consequence, the heartland of § 2H1.4 will vary depending on the defendant's conduct.

Here, the underlying offense was aggravated assault. After adjusting the offense level for use of a dangerous weapon and bodily injury, see 1992 USSG § 1B1.5(a) (a Guideline that incorporates another Guideline incorporates as well the other's specific offense characteristics), the District Court added six levels as required by § 2H1.4. Section 2H1.4 adds the six levels to account for the fact that the offense was committed "under actual or purported legal authority," commentary to § 2H1.4, and that "the harm involved both the underlying conduct and activity intended to deprive a person of his civil rights," ibid. (incorporating introductory commentary to § 2H1.1).

KOON v. UNITED STATES, 518 U.S. 81 (1996) - III

2011-03-15T14:37:00.000-07:00

The District Court's analysis of this departure factor showed a correct understanding in applying § 2H1.4 as a mechanical matter and in interpreting its heartland. After summarizing King's misconduct -- his driving while intoxicated, fleeing from the police, refusing to obey the officers' commands, attempting to escape from police custody, etc. -- the District Court concluded that a downward departure pursuant to § 5K2.10 was justified:

"Mr. King's provocative behavior eventually subsided. The Court recognizes that by the time the defendants' conduct crossed the line to unlawfulness, Mr. King was no longer resisting arrest. He posed no objective threat, and the defendants had no reasonable perception of danger. Nevertheless, the incident would not have escalated to this point, indeed it would not have occurred at all, but for Mr. King's initial misconduct." 833 F. Supp., at 787.

The court placed these facts within the context of the relevant Guideline range:

"Messrs. Koon and Powell were convicted of conduct which began as a legal use of force against a resistant suspect and subsequently crossed the line to unlawfulness, all in a matter of seconds, during the course of a dynamic arrest situation. However, the convicted offenses fall under the same Guideline Sections that would apply to a jailor, correctional officer, police officer or other state agent who intentionally used a dangerous weapon to assault an inmate, without legitimate cause to initiate a use of force.

"The two situations are clearly different. Police officers are always armed with 'dangerous weapons' and may legitimately employ those weapons to administer reasonable force. Where an officer's initial use of force is provoked and lawful, the line between a legal arrest and an unlawful deprivation of civil rights within the aggravated assault Guideline is relatively thin. The stringent aggravated assault Guideline, along with its upward adjustments for use of a deadly weapon and bodily injury, contemplates a range of offenses involving deliberate and unprovoked assaultive conduct. The Guidelines do not adequately account for the differences between such 'heartland' offenses and the case at hand." Ibid.

The Court of Appeals rejected this analysis. It interpreted the District Court to have found that King had been the but-for cause of the crime, not that he had provoked it. According to the Court of Appeals, the District Court "ultimately focused not on provocation itself but rather on the volatility of the incident, and the close proximity between, on the one hand, the victim's misconduct and the officers' concomitant lawful use of force, and, on the other hand, the appellants' unlawful use or authorization of the use of force." 34 F.3d, at 1459. The Court of Appeals thought these considerations did not justify departure for victim misconduct. It first quoted the test this Court formulated for excessive force cases under the Fourth Amendment:

"'The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments -- in circumstances that are tense, uncertain, and rapidly evolving -- about the amount of force that is necessary in a particular situation.'" Ibid. (quoting Graham v. Connor, 490 U.S. 386, 396-397, 104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989)).

The Court of Appeals reasoned that "before a use of force can be found excessive, the Graham 'calculus,' embracing the very factor which the district court found to be unusual in this case -- the 'dynamic arrest situation' -- has been taken into consideration." 34 F.3d, at 1459. Indeed, it noted the jury not only had to take the Graham factors into account, but also, to establish criminal liability, had to conclude that the petitioners "willfully came down on the wrong side of the Graham standard." 34 F.3d, at 1459 (emphasis in original). The Court of Appeals concluded that "the feature which the district court found unusual, and exculpatory, is built into the most fundamental structure of excessive force jurisprudence, and in criminal cases is built in twice." Ibid.

The court misinterpreted both the District Court's opinion and the heartland of the applicable Guideline range. The District Court's observation that the incident would not have occurred at all "but for" King's misconduct does not alter the further ruling that King provoked petitioners' illegal use of force. At the outset of its analysis, the District Court stated: "The Court finds, and considers as a mitigating circumstance, that Mr. King's wrongful conduct contributed significantly to provoking the offense behavior." 833 F. Supp., at 786. It later discussed "Mr. King's wrongdoing and the substantial role it played in bringing about the defendants' unlawful conduct." Id., at 787. Indeed, a finding that King's misconduct provoked lawful force but not the unlawful force that followed without interruption would be a startling interpretation and contrary to ordinary understandings of provocation. A response need not immediately follow an action in order to be provoked by it. The Commission recognized this when it noted that although victim misconduct would rarely be a basis for departure in a nonviolent offense, "an extended course of provocation and harassment might lead a defendant to steal or destroy property in retaliation." 1992 USSG § 5K2.10. Furthermore, even if an immediate response were required by § 5K2.10, it occurred here: The excessive force followed within seconds of King's misconduct.

The Court of Appeals misinterpreted the heartland of § 2H1.4 by concentrating on whether King's misconduct made this an unusual case of excessive force. If § 2H1.4 covered punishment only for excessive force cases, it might well be a close question whether victim misconduct of this kind would be sufficient to take the case out of the heartland. Section 2H1.4 is not so designed, however. It incorporates the Guideline for the underlying offense, here § 2A2.2 for aggravated assault, and thus creates a Guideline range and a heartland for aggravated assault committed under color of law. As the District Court was correct to point out, the same Guideline range applies both to a Government official who assaults a citizen without provocation as well as instances like this where what begins as legitimate force becomes excessive. The District Court did not abuse its discretion in differentiating between the classes of cases, nor did it do so in concluding that unprovoked assaults constitute the relevant heartland. Victim misconduct is an encouraged ground for departure. A district court, without question, would have had discretion to conclude that victim misconduct could take an aggravated assault case outside the heartland of § 2A2.2. That petitioners' aggravated assaults were committed under color of law does not change the analysis. The Court of Appeals thought that it did because § 2H1.4 "explicitly enhances sentences for official misconduct beyond those for civilian misconduct." 34 F.3d, at 1460. The statement is a non sequitur. Section 2H1.4 imposes a sixlevel increase regardless of whether the government official's aggravated assault is provoked or unprovoked. Aggravated assault committed under color of law always will be punished more severely than ordinary aggravated assault. The District Court did not compare civilian offenders with official offenders; it compared official offenders who are provoked with official offenders who are not. That was the correct inquiry. The punishment prescribed by § 2A2.2 contemplates unprovoked assaults, and as a consequence, the District Court did not abuse its discretion in departing downward for King's misconduct in provoking the wrong.

B

We turn now to the three-level departure. As an initial matter, the Government urges us to hold each of the factors relied upon by the District Court to be impermissible departure factors under all circumstances. A defendant's loss of career opportunities must always be an improper consideration, the Government argues, because "persons convicted of crimes suffer a wide range of consequences in addition to the sentence. " Brief for United States 38. Susceptibility to prison abuse, continues the Government, likewise never should be considered because the "degree of vulnerability to assault is an entirely 'subjective' judgment, and the number of defendants who may qualify for that departure is 'virtually unlimited.'" Id., at 39 (quoting 34 F.3d, at 1455). And so on.

Those arguments, however persuasive as a matter of sentencing policy, should be directed to the Commission. Congress did not grant federal courts authority to decide what sorts of sentencing considerations are inappropriate in every circumstance. Rather, 18 U.S.C. § 3553(b) instructs a court that, in determining whether there exists an aggravating or mitigating circumstance of a kind or to a degree not adequately considered by the Commission, it should consider "only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission." The Guidelines, however, "place essentially no limit on the number of potential factors that may warrant a departure." Burns v. United States, 501 U.S. 129, 136-137, 115 L. Ed. 2d 123, 111 S. Ct. 2182 (1991). The Commission set forth factors courts may not consider under any circumstances but made clear that with those exceptions, it "does not intend to limit the kinds of factors, whether or not mentioned anywhere else in the guidelines, that could constitute grounds for departure in an unusual case." 1995 USSG ch. I, pt. A, intro. comment. 4(b). Thus, for the courts to conclude a factor must not be considered under any circumstances would be to transgress the policy-making authority vested in the Commission.

An example is helpful. In United States v. Lara, 905 F.2d 599 (1990), the Court of Appeals for the Second Circuit upheld a District Court's downward departure based on the defendant's "potential for victimization" in prison due to his diminutive size, immature appearance, and bisexual orientation. Id., at 601. In what appeared to be a response to Lara, the Commission amended 1989 USSG § 5H1.4, to make physicial . . . appearance, including physique," a discouraged factor. 1995 USSG App. C., Amend. 386 (effective Nov. 1, 1991). The Commission did not see fit, however, to prohibit consideration of physical appearance in all cases, nor did it address the broader category of susceptibility to abuse in prison. By urging us to hold susceptibility to abuse in prison to be an impermissible factor in all cases, the Government would have us reject the Commission's considered judgment in favor of our own.

The Government acknowledges as much but says its position is required by 18 U.S.C. § 3553(a)(2). The statute provides:

"The court, in determining the particular sentence to be imposed, shall consider -- . . .
"(2) the need for the sentence imposed --
"(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
"(B) to afford adequate deterrence to criminal conduct;
"(C) to protect the public from further crimes of the defendant; and
" (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner."

Echoing the Court of Appeals, the Government interprets § 3553(a)(2) to direct courts to test potential departure factors against its broad sentencing goals and to reject, as a categorical matter, factors that are inconsistent with them. The Government and the Court of Appeals read too much into § 3553(a)(2). The statute requires a court to consider the listed goals in determining "the particular sentence to be imposed." The wording suggests that the goals should be considered in determining which sentence to choose from a given Guideline range or from outside the range, if a departure is appropriate. The statute says nothing about requiring each potential departure factor to advance one of the specified goals. So long as the overall sentence is "sufficient, but not greater than necessary, to comply" with the above-listed goals, the statute is satisfied. § 3553(a).

Even if the text of the statute were ambiguous, we would reject the Government's interpretation. The Government's theory -- that § 3553(a)(2) directs courts to decide for themselves, by reference to the broad, open-ended goals of the provision, whether a given factor ever can be an appropriate sentencing consideration -- would impose widespread judicial control over sentencing policy. This in turn would nullify the Commission's treatment of particular departure factors and its determination that, with few exceptions, departure factors should not be ruled out on a categorical basis. The sparse text of § 3553(a)(2) cannot support this implausible result. Congress created the Commission to "establish sentencing policies and practices for the Federal criminal justice system," 28 U.S.C. § 991(b)(1), and Congress instructed the Commission, not the courts, to "review and revise" the Guidelines periodically, § 994(o). As a result, the Commission has assumed that its role is "over time [to] . . . refine the guidelines to specify more precisely when departures should and should not be permitted." 1992 USSG ch. I, pt. A, intro. comment. 4(b). Had Congress intended the courts to supervise the Commission's treatment of departure factors, we expect it would have said so in a clear way. It did not, and we will not assume this role.

We conclude, then, that a federal court's examination of whether a factor can ever be an appropriate basis for departure is limited to determining whether the Commission has proscribed, as a categorical matter, consideration of the factor. If the answer to the question is no -- as it will be most of the time -- the sentencing court must determine whether the factor, as occurring in the particular circumstances, takes the case outside the heartland of the applicable Guideline. We now turn to the four factors underlying the District Court's three-level departure.

1

The first question is whether the District Court abused its discretion in relying on the collateral employment consequences petitioners would face as a result of their convictions. The District Court stated:

"Defendants Koon and Powell will be subjected to a multiplicity of adversarial proceedings. The LAPD Board of Rights will charge Koon and Powell with a felony conviction and, in a quasi-judicial proceeding, will strip them of their positions and tenure. Koon and Powell will be disqualified from other law enforcement careers. In combination, the additional proceedings, the loss of employment and tenure, prospective disqualification from the field of law enforcement, and the anguish and disgrace these deprivations entail, will constitute substantial punishment in addition to any court-imposed sentence. In short, because Koon and Powell are police officers, certain unique burdens flow from their convictions. " 833 F. Supp., at 789 (footnotes omitted).
The Court of Appeals rejected the District Court's analysis, noting among other things the "ease with which this factor can be used to justify departures that are based, either consciously or unconsciously, on the defendant's socioeconomic status, a factor that is never a permissible basis for review." 34 F.3d, at 1454. We agree with the Court of Appeals that a defendant's career may relate to his or her socioeconomic status, but the link is not so close as to justify categorical exclusion of the effect of conviction on a career. Although an impermissible factor need not be invoked by name to be rejected, socioeconomic status and job loss are not the semantic or practical equivalents of each other.
We nonetheless conclude that the District Court abused its discretion by considering petitioners' career loss because the factor, as it exists in these circumstances, cannot take the suit out of the heartland of 1992 USSG § 2H1.4. As noted above, 18 U.S.C. § 242 offenses may take a variety of forms, but they must involve willful violations of rights under color of law. Although cognizant of the deference owed to the District Court, we must conclude it is not unusual for a public official who is convicted of using his governmental authority to violate a person's rights to lose his or her job and to be barred from future work in that field. Indeed, many public employees are subject to termination and are prevented from obtaining future government employment following conviction of a serious crime, whether or not the crime relates to their employment. See Cal. Govt. Code Ann. § 19572(k) (West 1995) ("Conviction of a felony or conviction of a misdemeanor involving moral turpitude" constitutes cause for dismissal); § 18935(f) (State Personnel Board may refuse to declare eligible for state employment one who has "been convicted of a felony, or convicted of a misdemeanor involving moral turpitude"); Ky. Rev. Stat. Ann. 18A.146(2) (Michie 1992); 4 Pa. Code § 7.173 (1995). Public officials convicted of violating § 242 have done more than engage in serious criminal conduct; they have done so under color of the law they have sworn to uphold. It is to be expected that a government official would be subject to the career-related consequences petitioners faced after violating § 242, so we conclude these consequences were adequately considered by the Commission in formulating § 2H1.4.

2

We further agree with the Court of Appeals that the low likelihood of petitioners' recidivism was not an appropriate basis for departure. Petitioners were first-time offenders and so were classified in criminal history category I. The District Court found that "within Criminal History Category I, the Guidelines do not adequately distinguish defendants who, for a variety of reasons, are particularly unlikely to commit crimes in the future. Here, the need to protect the public from the defendants' future criminal conduct is absent 'to a degree' not contemplated by the Guidelines." 833 F. Supp., at 790, n. 20. The District Court failed to account for the Commission's specific treatment of this issue, however. After explaining that a district court may depart upward from the highest criminal offense category, the Commission stated:

"However, this provision is not symmetrical. The lower limit of the range for Criminal History Category I is set for a first offender with the lowest risk of recidivism. Therefore, a departure below the lower limit of the guideline range for Criminal History Category I on the basis of the adequacy of criminal history cannot be appropriate." 1992 USSG § 4A1.3

The District Court abused its discretion by considering appellants' low likelihood of recidivism. The Commission took that factor into account in formulating the criminal history category.

3

The two remaining factors are susceptibility to abuse in prison and successive prosecutions. The District Court did not abuse its discretion in considering these factors. The Court of Appeals did not dispute, and neither do we, the District Court's finding that "the extraordinary notoriety and national media coverage of this case, coupled with the defendants' status as police officers, make Koon and Powell unusually susceptible to prison abuse," 833 F. Supp., at 785-786. Petitioners' crimes, however brutal, were by definition the same for purposes of sentencing law as those of any other police officers convicted under 18 U.S.C. § 242 of using unreasonable force in arresting a suspect, sentenced under § 2H1.4, and receiving the upward adjustments petitioners received. Had the crimes been still more severe, petitioners would have been assigned a different base offense level or received additional upward adjustments. Yet, due in large part to the existence of the videotape and all the events that ensued, "widespread publicity and emotional outrage . . . have surrounded this case from the outset," 833 F. Supp., at 788, which led the District Court to find petitioners "particularly likely to be targets of abuse during their incarceration," ibid. The District Court's conclusion that this factor made the case unusual is just the sort of determination that must be accorded deference by the appellate courts.

As for petitioners' successive prosecutions, it is true that consideration of this factor could be incongruous with the dual responsibilities of citizenship in our federal system in some instances. Successive state and federal prosecutions do not violate the Double Jeopardy Clause. Heath v. Alabama, 474 U.S. 82, 88 L. Ed. 2d 387, 106 S. Ct. 433 (1985). Nonetheless, the District Court did not abuse its discretion in determining that a "federal conviction following a state acquittal based on the same underlying conduct . . . significantly burdened the defendants." 833 F. Supp., at 790. The state trial was lengthy, and the toll it took is not beyond the cognizance of the District Court.

V

The goal of the Sentencing Guidelines is, of course, to reduce unjustified disparities and so reach toward the evenhandedness and neutrality that are the distinguishing marks of any principled system of justice. In this respect, the Guidelines provide uniformity, predictability, and a degree of detachment lacking in our earlier system. This, too, must be remembered, however. It has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue. We do not understand it to have been the congressional purpose to withdraw all sentencing discretion from the United States District Judge. Discretion is reserved within the Sentencing Guidelines, and reflected by the standard of appellate review we adopt.

* * *

The Court of Appeals identified the wrong standard of review. It erred as well in finding that victim misconduct did not justify the five-level departure and that susceptibility to prison abuse and the burdens of successive prosecutions could not be relied upon for the three-level departure. Those sentencing determinations were well within the sound discretion of the District Court. The District Court did abuse its discretion in relying on the other two factors forming the three-level departure: career loss and low recidivism risk. When a reviewing court concludes that a district court based a departure on both valid and invalid factors, a remand is required unless it determines the district court would have imposed the same sentence absent reliance on the invalid factors. Williams, 503 U.S. at 203. As the District Court here stated that none of the four factors standing alone would justify the three-level departure, it is not evident that the court would have imposed the same sentence if it had relied only on susceptibility to abuse in prison and the hardship of successive prosecutions. The Court of Appeals should therefore remand the case to the District Court.

The judgment of the Court of Appeals is affirmed in part and reversed in part, and the cases are remanded for further proceedings consistent with this opinion.

It is so ordered.

JUSTICE STEVENS, concurring in part and dissenting in part.

In my opinion the District Court did not abuse its discretion when it relied on the unusual collateral employment consequences faced by these petitioners as a result of their convictions. I therefore except Part IV-B-1 from my otherwise complete endorsement of the Court's opinion. I also note that I do not understand the opinion to foreclose the District Court from basing a downward departure on an aggregation of factors each of which might in itself be insufficient to justify a departure.

JUSTICE SOUTER, with whom JUSTICE GINSBURG joins, concurring in part and dissenting in part.

I agree with the way today's opinion describes a district court's tasks in sentencing under the Guidelines, and the role of a court of appeals in reviewing sentences, but I part company from the Court in applying its standard on two specific points. I would affirm the Court of Appeals's rejection of the downward departures based on susceptibility to abuse in prison and on successive prosecution, for to do otherwise would be to attribute an element of irrationality to the Commission and to its "heartland" concept. Accordingly, I join the Court's opinion except Part IV-B-3.

As the majority notes, ante, at 106, "Congress did not grant federal courts authority to decide what sorts of sentencing considerations are inappropriate in every circumstance." In fact, Congress allowed district courts to depart from the Guidelines only if "the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." 18 U.S.C. § 3553(b); see also ante, at 92-93. While discussing departures, the Commission quotes this language from § 3553(b), before stating that "when a court finds an atypical case, . . . the court may consider whether a departure is warranted." United States Sentencing Commission, Guidelines Manual ch. 1, pt. A, intro. comment. 4(b) (Nov. 1995) (1995 USSG). Thus, both Congress and the Commission envisioned that departures would require some unusual factual circumstance, but would be justified only if the factual difference "should" result in a different sentence. Departures, in other words, must be consistent with rational normative order.

As to the consideration of susceptibility to abuse in prison, the District Court departed downward because it believed that "the widespread publicity and emotional outrage which have surrounded this case from the outset, in addition to the [petitioners'] status as police officers, lead the Court to find that Koon and Powell are particularly likely to be targets of abuse during their incarceration." 833 F. Supp. 769, 788 (CD Cal. 1993). That is, the District Court concluded that petitioners would be subject to abuse not simply because they were former police officers, but in large part because of the degree of publicity and condemnation surrounding their crime. n1 But that reasoning overlooks the fact that the publicity stemmed from the remarkable brutality of petitioners' proven behavior, which it was their misfortune to have precisely documented on film. To allow a departure on this basis is to reason, in effect, that the more serious the crime, and the more widespread its consequent publicity and condemnation, the less one should be punished; the more egregious the act, the less culpable the offender. In the terminology of the Guidelines, such reasoning would take the heartland to be the domain of the less, not the more, deplorable of the acts that might come within the statute. This moral irrationality cannot be attributed to the heartland scheme, however, and rewarding the relatively severe offender could hardly have been in the contemplation of a Commission that discouraged downward departures for susceptibility to prison abuse even when the nonculpable reason is an unusual "physical . . . appearance, including physique." 1995 USSG § 5H1.4; see also ante, at 107; 1995 USSG ch. 1, pt. A, intro. comment. 3 (discussing the principle of "'just deserts,'" which the Commission describes as a concept under which "punishment should be scaled to the offender's culpability and the resulting harms"). n2

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 Although it is not essential to my analysis, I note in passing that the unusual extent of outside publicity is probably irrelevant in the prison environment. Given any amount of outside publicity, prison inmates quickly learn about new arrivals, including former police officers, and the crimes of which they were convicted.

n2 The requirement of normative order does not, of course, say anything one way or the other about considering exceptionally unusual physical appearance as a basis to anticipate abuse.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The Court of Appeals appreciated the significance of the requisite moral calculus when it wrote that "any public outrage was the direct result of [petitioners'] criminal acts. It is incongruous and inappropriate to reduce [petitioners'] sentences specifically because individuals in society have condemned their acts as criminal and an abuse of the trust that society placed in them." 34 F.3d 1416, 1456 (CA9 1994). The Court of Appeals should be affirmed on this point.

I believe that it was also an abuse of discretion for the District Court to depart downward because of the successive prosecutions. n3 In these cases, there were facial showings that the state court system had malfunctioned when the petitioners were acquitted (or, in the case of one charge, had received no verdict), and without something more one cannot accept the District Court's conclusion that there was no demonstration that a "clear miscarriage of justice" caused the result in the state trial. 833 F. Supp., at 790. This is so simply because the federal prosecutors, in proving their cases, proved conduct constituting the crimes for which petitioners had been prosecuted unsuccessfully in the state court. See Powell v. Superior Court, 232 Cal. App. 3d 785, 789, 283 Cal. Rptr. 777, 779 (1991) (noting that petitioners were charged, inter alia, with assault by force likely to produce great bodily injury, Cal. Penal Code Ann. § 245(a)(1) (West 1988), and being an officer unnecessarily assaulting or beating any person in violation of § 149); § 149 ("Every public officer who, under color of authority, without lawful necessity, assaults or beats any person" commits an offense); § 245(a)(1) ("Every person who commits an assault upon the person of another . . . by any means of force likely to produce great bodily injury" commits an offense); ante, at 87-88 (observing that petitioners were tried in state court for assault with a deadly weapon and excessive use of force by a police officer and tried in federal court for willfully using or willfully allowing others to use unreasonable force in arresting King); 833 F. Supp., at 790 (stating that the "same underlying conduct" was involved in both cases). While such a facial showing resulting from the identity of factual predicates for the state and federal prosecutions might in some cases be overcome, (by demonstrating, say, that a crucial witness for the State was unavailable in the state trial through no one's fault), there was no evidence to overcome it here.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 It is true, factually, that successive federal prosecutions after state proceedings occur very rarely even in criminal civil rights prosecutions, U.S. Commission on Civil Rights, Who is Guarding the Guardians?, 112, 116 (Oct. 1981) (noting that between 50 and 100 police misconduct cases are brought each year and that from March 1977 to September 1980 only seven successive prosecutions were authorized); United States v. Davis, 906 F.2d 829, 832 (CA2 1990) ("In practice, successive prosecutions for the same conduct remain rarities"). Those figures do not, however, demonstrate that all convictions on successive federal prosecutions under 18 U.S.C. § 242 should for that reason be subject to discretion to depart downward, for they do not take account of the normative ordering, discussed below.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

As a consequence, reading the Guidelines to suggest that those who profit from state-court malfunctions should get the benefit of a downward departure would again attribute a normative irrationality to the heartland concept. The sense of irrationality here is, to be sure, different from what was presupposed by the District Court's analysis on the issue of susceptibility to abuse in prison, for the incongruity produced by downward departures here need not depend on the defendant's responsibility for the particular malfunction of the state system. But the fact remains that it would be a normatively obtuse sentencing scheme that would reward a defendant whose federal prosecution is justified solely because he has obtained the advantage of injustice produced by the failure of the state system.

This is not, of course, to say that a succession of state and federal prosecutions may never justify a downward departure. If a comparison of state and federal verdicts in relation to their factual predicates indicates no incongruity, a downward departure at federal sentencing could well be consistent with an application of a rational heartland concept. But these are not such cases.

JUSTICE BREYER, with whom JUSTICE GINSBURG joins, concurring in part and dissenting in part.

I join the Court's opinion with the exception of Part IV-B-3. I agree with JUSTICE SOUTER's conclusion in respect to that section. The record here does not support departures based upon either the simple fact of two prosecutions or the risk of mistreatment in prison.

In my view, the relevant Guideline, 1992 USSG § 2H1.4, encompasses the possibility of a double prosecution. That Guideline applies to various civil rights statutes, which Congress enacted, in part, to provide a federal forum for the protection of constitutional rights where state law enforcement efforts had proved inadequate. Before promulgating the Guidelines, the Commission "examined the many hundreds of criminal statutes in the United States Code, " 1995 USSG ch.1, pt. A, intro. comment. 5, and it would likely have been aware of this well-known legislative purpose. The centrality of this purpose, the Commission's likely awareness of it, and other considerations that JUSTICE SOUTER mentions, lead me to conclude on the basis of the statute and Guideline itself, 18 U.S.C. § 3553(b), that the Commission would have considered a "double prosecution" case as one ordinarily within, not outside, the "civil rights" Guideline's "heartland." For that reason, a simple double prosecution, without more, does not support a departure. See § 3553(b) (departures permitted only when circumstances were "not adequately taken into consideration" by the Commission).

The departure on the basis of potential mistreatment in prison presents a closer question. Nonetheless, differences in prison treatment are fairly common -- to the point where too frequent use of this factor as a basis for departure could undermine the uniformity that the Guidelines seek. For that reason, and others that JUSTICE SOUTER mentions, ante, at 115-116, I believe that the Guidelines themselves embody an awareness of potentially harsh (or lenient) treatment in prison, thereby permitting departure on that basis only in a truly unusual case. Even affording the District Court "due deference," § 3742(e), I cannot find in this record anything sufficiently unusual, compared, say, with other policemen imprisoned for civil rights violations, as to justify departure.

Police Misconduct Lawsuits - 2011 - Part I.

2011-03-02T15:14:00.000-08:00

«• March 2, 2011 •»

Pending Lawsuit: GRAND RAPIDS, MI - The American Civil Liberties Union today said it will appeal a decision by a federal judge to dismiss its lawsuit filed in June against Wal-Mart and the manager of its Battle Creek, Michigan store for wrongfully firing an employee for using medical marijuana in accordance with state law. The patient, Joseph Casias, used marijuana to treat the painful symptoms of an inoperable brain tumor and cancer.

«• Brought to you by Lawsuits! •»

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F.B.I. Sued!

Posted: 03/02/2011 12:14:34 PM PST
Updated: 03/02/2011 02:14:42 PM PST

A Muslim advocacy group on Wednesday sued the FBI on behalf of a San Jose 20-year-old student who says he found a GPS tracker on his car last fall, alleging the device violated the young man's constitutional rights. Last week, the CAIR in Los Angeles Area and the American Civil Liberties Union of Southern California announced a federal class action lawsuit against the FBI for allegedly illegal surveillance of the Muslim community there.

The Council on American Islamic Relations' suit revolves around Yasir Afifi, a marketing student at Mission College in Santa Clara, who made headlines last fall when he posted the mysterious device online asking readers decipher what it was. The FBI showed up two days later "interrogating" him, the suit alleges, before taking the GPS tracker back. The lawsuit states the FBI was able to "continuously monitor Mr. Afifi's vehicle, and thus, Mr. Afifi himself, accurately within meters," acting as an "unlawful trespasser," in violation the Fourth Amendment. The suit also contends that by keeping an active file still open on Afifi, which documents where he prayed had dinner with his girlfriend, among other activities, is a violation of the First Amendment.

"The biggest thing here, is that the FBI is treating American Muslims as suspects instead of partners," said Zahra Billoo, Affifi's attorney and the executive director of CAIR in Santa Clara. "This targeting undermines cooperation with law enforcement and chills Muslims' civil rights. We want to ensure the FBI stops these types of practices. This should be an ongoing cause for concern for all Americans."

FBI spokeswoman Julianne Sohn said she couldn't specifically comment.

AFIFISUIT -

The defendants named are Attorney General Eric Holder, FBI Director Robert Mueller and unnamed FBI agents. The suit demands that the FBI never place another tracker on Afifi's car, return or destroy the documents on him, declare these type of warrantless searches illegal, and seeks and unspecified money for damages.

CAIR filed the lawsuit in Washington D.C., where the FBI has its headquarters and where the federal court there has declared it's illegal to place GPS trackers on cars without warrants, Billoo said, which is not the case within the Ninth Circuit that encompasses California. Afifi has said on Oct. 3, his mechanic spotted the tracker, when he took his car in for a routine oil change. The mechanic yanked it out, and Afifi brought the device home, worried that it may be a pipe bomb. He uploaded photos of it on the Internet, and a reader suggested it was a law enforcement GPS.

A couple days after he posted the photo, Afifi said FBI agents followed him in his car, and pulled him over to question him about his license. Records state Afifi has one prior, unrelated misdemeanor from when he was 19 years old. One agent identified himself only as Vincent, the suit alleges.

Then, the "interrogation" began, Afifi asserts in the suit. The agents asked about the tracking device and began threatening if he didn't turn it over, he'd face charges for possessing federal property. Vincent said he had a warrant to retrieve the device, but refused to show it to Afifi, the suit states. Billoo said in an interview that a copy of that warrant has never been produced for her agency. Afifi said he wanted to contact an attorney, who would make the "appropriate arrangements" with the FBI, but then "Vincent began yelling at Mr. Afifi and emphatically refused Mr. Afifi's request," according to the suit.

FBI agents finally acknowledged the tracker was theirs and they had attached it to Afifi's car, the suit states. Even after Afifi decided to return the device, agents continued asking questions: Was he was a national security threat? Was he was excited about an upcoming trip abroad? Did he have money troubles? Had he traveled to Yemen? Another agent, identified as Jennifer Kananan, "made clear that she knew intimate, private details of Mr. Afifi's life," by congratulating him on his new job and commending him on his taste in restaurants, the suit states. She even suggested that Afifi himself might one day work for the FBI.

Longmont Sued!

Publish Date: 2/1/2011

LONGMONT — The city of Longmont has agreed to a $130,000 settlement in a lawsuit brought by a 1996 rape victim. Renee Dulany was 19 when she was bound and raped at knifepoint by Rudy Gaytan. She later sued the police officer who led the investigation, saying she had identified Gaytan as a suspect within hours of the attack but that police didn’t seriously look into him at the time.

Gaytan was arrested in 2006 when a match was made with a DNA sample he gave in another criminal case. He was convicted of the rape in 2007 and sentenced to 72 years in prison. In 2010, Gaytan also pleaded guilty to the second-degree murder of Tammera Tatum, for which he is serving a concurrent sentence.

City attorney Eugene Mei said the agreement was signed by Jan. 24, 2011 but that some defendants still need to approve it.

Under the terms of the settlement, Dulany will be paid within 15 days after the agreement becomes effective. That is, after everyone involved has signed it. But Dulany said she’s not happy with the delay. She’s considering withdrawing from the settlement, in part because she thought the 15-day clock began ticking on Jan 14 — when the terms of the agreement were reached, she said. She noted that if the lawsuit still went ahead, there were steps she would need to take in early February.

“If they’re not going to honor the settlement we came to pretty soon, within 24 to 48 hours, then we have a timing problem and I’m going to have to make a choice,” Dulany said.

Mei said the city had every intention of honoring the settlement and that both Dulany and her attorney had signed their agreement to the terms.

“If there was some issue with the timing, the plaintiff and the plaintiff’s attorney shouldn’t have consented to the settlement,” Mei said.

“Our position would be that we have an agreement,” he said.

Los Angeles Shooting Verdict!

March 2, 2011

FILE - This undated family photo provided by Rukhsana Chaudhry, shows Mohammad Usman Chaudhry, an autistic man who was shot and killed by Los Angeles police officer Joseph Cruz in 2008. Chaudhry's family is suing the LAPD over the death. A civil jury has awarded $1.7 million to the family of Mohammad Usman Chaudhry Attorney Olu Orange said Wednesday, Jan. 26, 2011, that the jury awarded $1 million in compensatory damages to the estate of Mohammad Usman Chaudhry and $350,000 to each of his parents. Former officer Joseph Cruz was found to have used excessive force in the March 2008 killing of Chaudhry, though a police probe had largely cleared Cruz after he said he shot Chaudhry when the 21-year-old man lunged at him with a knife. Cruz was later fired from the Police Department on an unrelated matter.

Los Angeles Sued!

January 19, 2011

The family of a man shot and killed by an LAPD officer in 2008 has filed a wrongful death lawsuit against the department and the former policeman, who was fired for dishonesty on another case. Mohammed Usman Chaudhry was a 21-year-old autistic man who sometimes wandered away from his parent's home in favor of a transient existence on the streets in Hollywood.

DOCUMENTS: Read the use of force report filed by the Los Angeles Police Commission

On March 25, Officer Joseph Cruz spotted Chaudhry near Curson Avenue south of Sunset Boulevard and struck up a conversation with him. Chaudhry acted calmly and did not seem to pose a threat, authorities said. Cruz instructed his partner to return to the patrol car to run Chaudhry's name through a computer database for any outstanding warrants. From where the vehicle was parked, his partner could not see Cruz and Chaudhry clearly, court and police records show.

According to Cruz's account of the shooting contained in court and police records, Chaudhry suddenly reached into the front pocket of his sweatshirt, pulled out a knife with a nearly 4-inch blade and lunged at him. Cruz drew his gun and fired three shots in quick succession, and, with Chaudhry still on his feet, fired a fourth shot a second or two later. His partner saw Cruz fire only the fourth shot, and there were no other witnesses.

In opening statements to the jury Tuesday, Chaudhry’s family attorney Olu Orange said, "Today's case is about truth and the evidence will show that Joseph Cruz was fired from his position as an LAPD officer … that it was the city of Los Angeles that fired him … and the reason he was fired was that he was dishonest, that he would not tell the truth during an official investigation."

Joseph Cruz!

In his short time as a Los Angeles police officer, Joseph Cruz earned a reputation as a hard-charging cop. He opted to work nights in a "very aggressive unit" in Hollywood, using force on suspects when the circumstances called for it, court records show. A supervisor once testified that he wished he had 40 officers just like Cruz.

The praise, however, soon turned to suspicion and later disbelief. In 2007, a witness said he saw the 25-year-old Cruz pistol-whip a suspect, leaving a bloody gash on the man's head. Cruz claimed the man caused the injury himself by lifting his head into the butt of the gun. Ultimately, Cruz was fired for dishonesty after he gave shifting accounts of another detainee's escape from his custody.

When Cruz went to court to try to get his job back, city lawyers told a judge the former officer's "actions have damaged beyond repair his credibility."

So it is a strange scene playing out this week in a federal courtroom in Los Angeles, where the LAPD and the same city attorney's office that essentially denounced Cruz as a liar are now vouching for his credibility in a lawsuit alleging that he wrongly killed a man. They say Cruz's actions in a 2008 shooting were justified, although they have reached that conclusion largely on the word of a man they say they don't trust.

The awkward arrangement highlights the complications and inconsistencies that can arise for the LAPD and the city attorney's office. The Police Department fires, suspends, or otherwise disciplines hundreds of officers for misconduct each year, while at the same time working with city lawyers to defend some of the same officers in civil lawsuits alleging wrongdoing.

"This is one of the messes that classically gets left behind when an officer is found to be corrupt," said USC law professor Rebecca Lonergan, a former federal prosecutor.

The shooting at the center of the current lawsuit occurred in the darkness of a March morning in 2008. A few minutes before 4 a.m., Cruz and his partner were driving down Curson Avenue south of Sunset Boulevard when Cruz spotted Mohammed Usman Chaudhry lying behind some bushes in the shadows of an apartment building.

Chaudhry was a 21-year-old autistic man who sometimes wandered away from his parent's home in favor of a transient existence on the streets in Hollywood. Cruz struck up a conversation with Chaudhry, who acted calmly and did not seem to pose a threat, police and court records show. It does not appear that Chaudhry's behavior gave the officers an indication of his mental disorder. Cruz instructed his partner to return to the patrol car to run Chaudhry's name through a computer database for any outstanding warrants. From where the vehicle was parked, his partner could not see Cruz and Chaudhry clearly, court and police records show.

According to Cruz's account of the shooting contained in court and police records, Chaudhry suddenly reached into the front pocket of his sweatshirt, pulled out a knife with a nearly 4-inch blade and lunged at him. Cruz drew his gun and fired three shots in quick succession, and, with Chaudhry still on his feet, fired a fourth shot a second or two later. His partner saw Cruz fire only the fourth shot, and there were no other witnesses.

Three of the bullets struck Chaudhry in the chest area, killing him. Cruz was treated for a small cut on his hand that he said he suffered when he raised his arm to block Chaudhry's attempt to stab him. A knife was recovered at the scene.

The Los Angeles Police Commission, a civilian board that oversees the LAPD and reviews all serious use-of-force cases, concluded that Cruz's decision to use deadly force was justified. The board criticized Cruz and his partner for failing to search Chaudhry for weapons and for ignoring a basic tactical rule that requires one officer to always keep watch over his partner during a stop.

Chaudhry's parents filed a lawsuit in U.S. District Court against Cruz and the LAPD, alleging that their son's civil rights were violated in the shooting.

In his opening statement to the jury Tuesday, a lawyer for the family made it clear he would try to cast doubt on Cruz's trustworthiness and his account of the incident, in part by driving home the fact that the LAPD and city lawyers concluded he was not credible.

"Today's case is about truth," attorney Olu Orange said. "And the evidence will show that Joseph Cruz was fired from his position as an LAPD officer … that it was the city of Los Angeles that fired him … and the reason he was fired was that he was dishonest, that he would not tell the truth during an official investigation."

The city has a strong interest in defending Cruz in court. If the jury awards the Chaudhry family monetary damages, it is likely — although not certain — that the city will be responsible for the cost since Cruz killed Chaudhry in the line of duty.

The city is paying Peter Ferguson, a private attorney, to defend Cruz in the case. Craig Miller, a deputy city attorney who specializes in defending LAPD officers, is also at the defense table. And an LAPD detective from the department's Risk Management Section has served as Miller's investigator on the case, helping him to build the case that Cruz's account of the shooting is truthful.

Lawyers for the Chaudhry family are expected to focus, in part, on DNA evidence taken from the knife. Tests conducted for the LAPD found only one person's DNA on the knife's handle and blade, court records show. And Chaudhry's DNA, the tests concluded, did not match the DNA on the knife.

Representatives from the LAPD and city attorney's office refused requests for comment. Ferguson also declined to comment or let Cruz speak for this article.

The shooting came in the wake of two other incidents that put Cruz under scrutiny and eventually resulted in his being fired.

In April 2007, the pistol-whipping incident occurred, according to police records. Despite Cruz's explanation that the wound had been accidentally caused by the suspect, the Police Commission concluded that the witness' account was more credible and determined that Cruz had been unjustified in making the head strike. It does not appear that finding led the LAPD to open an investigation into whether Cruz had been dishonest with investigators.

Several months later, Cruz and a partner were sent to pick up a girl who had run away from a juvenile shelter, according to court records. On the drive back to the LAPD's Hollywood area station, the girl escaped from the patrol car and fled.

During the investigation into the incident, Cruz offered the explanation that the girl, who was handcuffed, had thrown herself head-first out the window while the car was moving. And, in three interviews with investigators, he gave a changing account of what he did in the moments after she fled. At first, he said he had tried to contact a supervisor over his department radio. When investigators told Cruz there was no record of any radio transmission, he said he recalled that he had instead used his mobile phone to contact the station.

Department officials accused Cruz of oversights that led to the girl's escape and of making false statements — a charge he denied. He went before a three-person disciplinary board, which included two LAPD captains. The two captains rejected Cruz's explanations, found him guilty of dishonesty and recommended that he be fired.

"There are too many events that do not make sense, as explained by Officer Cruz, to give this board any confidence in his statement," the captains concluded in their decision. Cruz, they wrote, had offered up a "calculated set of false facts" that amounted to a "concocted story."

Damages: $8 million !

January 19, 2011

SPRINGFIELD, Ill. • The Illinois Court of Claims awarded $8 million in damages today to the parents of two Collinsville teens killed by a state trooper who crashed his squad car at 126 mph while e-mailing and talking on his cell phone.

Brian Uhl and Kimberly Schlau, the parents of Jessica Uhl, 18, and Kelli Uhl, 13, had sought damages in excess of $24 million from former state trooper Matt Mitchell and the state, and later increased it to $46 million. Still, the $8 million award is considered large.

"To my knowledge, this is the largest tort claim ever awarded (against the state)," said Michael Mathis, a lawyer for the Illinois Court of Claims.

The court awarded $4 million for Kelli Uhl's death, and $4 million for Jessica Uhl's death.

Schlau said at a press conference today that the award won't make her family whole. But, she said she hopes it will deter negligent behavior in the future. "We are hopeful this ruling has an impact," Schlau said. Schlau said the money will help the family fund scholarships in the girls' names.

Mitchell lost control of his police car on Interstate 64 near Fairview Heights while driving 126 mph in response to an emergency that was already being handled by other agencies. In the moments before the November 2007 crash, Mitchell had been talking on his cell phone to his girlfriend and e-mailing another trooper. Larry Trent, the former director of the state police, testified that Mitchell's actions were "indefensible."

The Uhl sisters were headed home from a post-Thanksgiving photo shoot when their car was struck by Mitchell's marked Chevrolet and was engulfed in a raging fire. The teens died at the scene. Two others in another vehicle were injured. Mitchell resigned from his job last year, after he pleaded guilty of two counts of reckless homicide in a deal for 30 months on probation.

Now, the monetary award must be rolled into a special bill and approved by the Illinois Legislature. Such bills are usually approved toward the end of April.

Mitchell was in two previous crashes: A single-vehicle crash in 2002 with no injuries, and a 2003 crash that resulted in a $1.7 million judgment.

Help Your Attorney Help You!

2010-11-04T14:33:00.000-07:00

«• August 5, 2009 •»

Pending Lawsuit: A San Francisco police officer, Jeffrey John Sung, 32, has been charged in San Mateo County Superior Court with misdemeanor sexual assault for allegedly groping a woman while wearing his police uniform, a deputy district attorney said on August 4, 2009. A lawsuit is sure to follow!

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Concord Folds!

November 4, 2010

MARTINEZ, CA -- Former Concord Police Officer Lisa Capocci reached a settlement today with the City of Concord [California] in her sexual harassment and discrimination suit against the city. The settlement came as most of the jury had already been seated in what was scheduled to be a two-week trial. Attorneys for Capocci and the city said details of the settlement would not be available until Tuesday night, when it can be approved by Concord's City Council.

The suit was the first of three interrelated discrimination lawsuits against the department. The other two cases are still pending.

The lawsuit claimed one of Capocci's supervisors, then-Cpl. Michael Hansen, made inappropriate sexual advances toward her. When she complained, Hansen and his colleagues in the department retaliated by filing a half-dozen groundless internal affairs investigations against her, according to court filings. Capocci also alleged that other officers were slow to back her up on calls.

After being stripped of her position as a K-9 officer, Capocci quit in July, a year after filing the suit, because she could no longer tolerate the work environment, said Stan Casper, her attorney.

The city says the department treated Capocci fairly and investigated her complaints. Hansen was disciplined, though Capocci's suit calls the discipline minimal. The internal investigations against her were all legitimate, according to the city's court filings. Capocci failed to arrest a drunken driver she should have, made a secret recording of a conversation with co-workers and posted pictures on Facebook of a trip to the county fair while she said she was out sick. She also had made inappropriate comments to Hansen, according to the city's filings.

You & Your Attorney!

November 4, 2010

Even the sharpest lawyers can't do justice to your case without your full cooperation throughout. Two commercial trial attorneys explain:

By Matthew A. Taylor and Matthew M. Ryan (July 21, 2010)

In our years as commercial trial lawyers, we've encountered clients of every stripe and character. Not surprisingly, the representation proceeds much more smoothly when the client cooperates and actively engages in the matter. Allow us to explain what makes the difference between a good and bad client.

Good clients reveal everything about the case, warts and all. During the initial consultation and throughout the life of the litigation, clients need to speak candidly to their counsel and not outsmart themselves by telling their lawyer what they think the lawyer wants to hear. While we certainly want you to emphasize and focus on the most relevant and helpful information, your cause will ultimately suffer if you censor yourself. Always err on the side of disclosing information, even the embarrassing and unflattering variety. Your attorneys need to hear it in order to prepare for its disclosure and minimize any negative consequences.

Good clients listen to everything about the case. Your attorney needs to speak candidly to you and be comfortable advising you where you went wrong. A good client remains receptive to the constructive criticism and the tough-love feedback. Moreover, a good client is open to whatever instructions the attorney might give. For instance, responding to discovery requests might be cumbersome and embarrassing, but a good client listens to and follows counsel's advice on which documents and records to collect.

WHO ARE THE KEY EMPLOYEES?
Good clients introduce us to the necessary players. Who made the decisions at issue in the lawsuit? For example, when a contract negotiation goes sour and litigation ensues, your attorney needs to talk to the people who actually sat at the bargaining table. Who prepared the negotiators? Which employees compiled materials for the negotiation? Who originally created those materials? There are also many administrative employees your attorney needs to meet. For instance, presuming you communicate via e-mail at work, you should identify who runs the client's IT department. Your attorney needs to talk to your IT director to ensure that necessary and relevant e-documents are retained and easily reproduced.

Good clients install litigation holds. A litigation hold requires an organization to preserve data relating to a specific legal action. Once you can reasonably anticipate litigation, even before a complaint is actually filed, you must take reasonable, good faith measures to preserve evidence, including documents and electronically stored information relevant to the litigation. Severe consequences, including monetary or even evidentiary sanctions, can result from failing to preserve this evidence. For example, a court could instruct a jury that an adverse inference may be drawn if the judge is convinced the client has failed to preserve relevant evidence. Document preservation may mean laying out some cash, but the penalties of not doing so far exceed the cost.

Good clients understand the territory. For better or worse, litigation is a protracted and expensive process (perhaps to encourage all parties to settle early and cut their losses). Your attorneys will always strive to keep your lawsuit moving expeditiously through the legal system. But even with these best practices, your lawsuit might still take years to resolve. Trial dates are often rescheduled. Civil suits in particular tend to drag. An individual judge might have hundreds of lawsuits on her docket. Her time is at a premium, which makes it a challenge for your attorney to schedule a hearing, conference, or trial with her. The opposing side is also entitled to develop and prepare its side of the argument. Conflicts and emergencies—for the parties, the attorneys, and the court—arise frequently, and a good client accepts it when a January trial date unexpectedly moves to March or June.

OTHER SIDE OF THE COIN
Bad clients fail to tell their attorney what a "win" means to them. As trial lawyers, we train and prepare to exhaust all steps en route to a successful trial and, if necessary, a successful appeal.But before we review every document and depose every witness, we need to know the client's strategic goal. Does the client have liquidity issues and need a quick, discounted settlement payment in order to stay afloat? Does the client want to remain in the case just long enough so third-party observers conclude the client is not an easy mark for would-be litigation trolls? Or does the client want to extract a pound of flesh from the other side, regardless of time or cost? Your attorney's idea of a "win" might not always mirror yours.

Bad clients neglect to pay the bills. Your attorneys are surely willing to discuss the bills and each line item with you, and any client is entitled to raise concerns about bills with his lawyer. Nonetheless, clients need to pay the bills, and pay them regularly. Obviously, a delinquency might strain the ongoing relationship between the attorney and the client. Furthermore, a delinquency could compromise the relationship with third parties (retained expert witnesses, paralegals, e-discovery firms, photocopying services, etc). Litigation incurs many costs. A client who fails to pay the bills might lose favorable expert testimony, crucial administrative support, access to document databases and repositories, and even the necessary photocopies for filing and service upon opposing parties and the court.

Bad clients refuse to get involved in the case. Ignoring a lawsuit will not make it go away. Clients know more about the factual underpinnings of a case than their attorneys do. Never hesitate to contact your lawyer and share as many details as possible. Be sure to return your attorney's telephone calls when he asks for your assistance in drafting pleadings, discovery requests, or discovery responses. And share your knowledge of the interrelationships between the litigants and third parties. A bad client, for example, might fail to mention that an "impartial" third-party witness actually has known a litigant for decades and that, possibly, that personal or professional relationship might unravel that witness's testimony and prove a terrible embarrassment before the court.

Bad clients don't show up. Too frequently, corporate clients dispatch their "usual" corporate representatives or lower-level employees whose knowledge of the specific issues is less than desired. Your attorney must (and will) make clear to you which people should attend a deposition, hearing, or trial. In our experience, however, we have had too many depositions rescheduled, meetings postponed, and conference calls canceled, because a client knowingly sends the wrong representative to appear. This type of behavior ultimately hurts the client in wasted time, money, and credibility. Nothing remains in a judge's mind more than the unfavorable impression acquired early on due to juvenile gamesmanship.

Clients who want to succeed must do everything possible to make their lawyers winners. Much of the end result hinges on how you perform your responsibilities for your litigation.

Matthew A. Taylor is chairman of Duane Morris' trial practice group and serves on the firm's executive committee. The trial practice group consists of some 350 attorneys in 18 offices. Taylor practices in the area of commercial litigation, handling matters in state and federal courts across the U.S. Matthew M. Ryan is a Duane Morris litigator who represents corporate entities and individual clients in commercial litigation matters, with emphasis on contracts, commercial fraud, and business tort cases.

Verdicts, Claims & Settlements! - Part V

2010-07-18T20:46:00.001-07:00

July 18, 2010

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NYC Folds!

July 27, 2010

New York (WLSB) -- New York City will pay more than $7 million to settle a civil lawsuit brought by the estate of a man killed by police outside a Queens' nightclub in 2006 and by his two friends, who were seriously wounded, a spokeswoman for the city's Law Department said Tuesday. The estate of Sean Bell, who was killed in the shooting, will receive $3.25 million, Joseph Guzman receive $3 million and Trent Benefield will get $900,000, said Kate Ahlers. "The city regrets the loss of life in this tragic case, and we share our deepest condolences with the Bell family," Michael Cardozo, attorney for the New York City Law Department. "We hope that all parties can find some measure of closure by this settlement." Bell, Guzman and Benefield were shot after an altercation with plainclothes detectives outside the Queens nightclub where Bell's bachelor party was held on the night before his wedding. Bell died at the scene, and Guzman and Benefield were seriously wounded.

Accounts of the incident varied. Undercover officers, who were investigating the club regarding prostitution allegations, said they identified themselves as police, but witnesses and the wounded men said they did not. Police said they believed at least one of the men had a gun, but no gun was found. And one of the officers said the Bell, instead of obeying his command to stop, hit him with his vehicle. The incident quickly became a touchstone for those who believe police -- in New York and elsewhere -- have a record of excessive force, particularly against black men. Bell, 23, was African-American, as were the two men wounded and two of the three police officers. The officers fired 50 shots in just a few seconds. The shooting sparked street protests, and Mayor Michael Bloomberg called it "inexplicable" and "unacceptable," saying "it sounds to me like excessive force was used."
In March 2007, three of the police officers were indicted on multiple charges.

Detectives Gescard Isnora, Marc Cooper and Michael Oliver -- who fired his gun 31 times that night, pausing to reload his weapon -- were acquitted of all charges in April 2008 Justice Arthur Cooperman of New York State Supreme Court said inconsistent testimony and other problems "had the effect of eviscerating the credibility" of key prosecution witnesses, and that some testimony "just didn't make sense." "The police response with respect to each defendant was not proved to be criminal -- i.e., beyond a reasonable doubt. Questions of carelessness and incompetence must be left to other forums," Cooperman said, according to a transcript released by his office.

Citing insufficient evidence, the Department of Justice announced in February that it would not pursue federal civil rights charges against police officers involved. The department issued a statement saying that after a "careful and thorough" review, there is not enough evidence to prove that New York Police Department detectives "acted willfully" when they opened fire on Bell and his friends. In May, Rev. Al Sharpton led a large protest in response to the Department of Justice decision. Sharpton and Bell's fiancee and parents were among more than 200 people arrested in New York City. Sharpton responded to Tuesday's decision in a written statement. "This in no way mitigates or repairs the permanent damage done to them and the pain it has caused them forever nor does it diminish the outrage in the community," Sharpton said. "We will always pursue justice for the family of Sean Bell, Joseph Guzman and Trent Benefield."

Oakland Settles ... Again!

July 21, 2010

OAKLAND — The Oakland City Council voted Tuesday night to pay $6.5 million in two search warrant cases from 2008 that claimed several Oakland police officers falsified sworn affidavits resulting in illegal raids on homes in East and West Oakland. The two federal civil rights lawsuits, representing 104 people, stemmed from allegations that a number of officers had misstated facts in sworn affidavits over a period of several years to Alameda County judges, indicating they had tested substances bought on the street to determine if they were drugs even though no test was ever conducted on the substances. The sworn statements were then used by judges to issue search warrants on homes and apartments which, in many instances, resulted in the arrest of residents in a variety of felony crimes. Most of the criminal cases that resulted from the illegal searches were dismissed. Four police officers were subsequently fired. Attorneys and the union representing the officers who were fired argued that the problems were caused by a lack of training and not intentional misconduct by the officers. But an internal investigation found otherwise. In the settlement, $2 million will come from city coffers, and the remaining $4.5 million will be paid by the city's insurance carrier, city officials said. Oakland attorneys who represented the plaintiffs, issued a statement Wednesday saying the settlement is "another move in the right direction in improving the quality of policing in Oakland and building trust between the police and the community." "There has been change, but we still have a long way to go," one of the attorneys said.

24 Hour Unfitness!

July 18, 2010

A civil rights group filed a class-action lawsuit Tuesday on behalf of workers at 24 Hour Fitness USA Inc., claiming the San Ramon-based company's workers have been victims of discrimination on the basis of race, color, national origin and gender. The Alameda County Superior Court lawsuit claims the largest privately owned U.S. fitness chain has systematically discriminated against minority and female workers regarding promotions to management jobs and equal pay, violating the California Fair Employment and Housing Act and the California Business and Profession Code. The suit demands that 24 Hour Fitness end its alleged discriminatory practices and provide back pay and damages to the employees who say they were treated unfairly.

The company issued a statement saying it's "deeply committed to providing a work environment that is free from unlawful discrimination and retaliation. "24 Hour Fitness makes its hiring and promotional decisions without regard to race, national origin, gender or any other protected basis," it said. "We firmly deny the allegations made in the complaint and we expect to prevail when all the facts are heard." The Mexican American Legal Defense and Education Fund and the Oakland law firm of Lewis, Feinberg, Lee, Renaker & Jackson represent the plaintiffs. "I am a competitor and I strive to be my best, but at 24 Hour Fitness that is not recognized," lead plaintiff Raoul Fulcher, who says he was passed over for promotions because he's African-American, said in a Legal Defense and Education Fund news release.

An attorney for the plaintiffs who was the nation's top civil rights prosecutor as an assistant attorney general during the Clinton administration, said the company "promises customers a family fitness environment" but "does not treat its minority and women employees as part of the family. Qualified, experienced minorities and women work lower-level jobs, but don't get a chance at management jobs. Breaking the promise of equal opportunity is against the law." 24 Hour Fitness serves more than 3.5 million members in more than 400 clubs nationwide, of which about 200 employ more than 10,000 people in California; it has more than 20 sites in Alameda and Contra Costa counties.

Abuse of Process!

July 18, 2010

As millions of Americans have fallen behind on paying their bills, debt collection law firms have been clogging courtrooms with lawsuits seeking repayment. Few have been as prolific as Cohen & Slamowitz, a Woodbury, N.Y., firm that has specialized in debt collection for nearly two decades. The firm has been filing roughly 80,000 lawsuits a year. With just 14 lawyers on staff, that works out to more than 5,700 cases per lawyer. How is that possible? The answer to that question is at the heart of a growing debate over the increasing use of the nation’s legal system to collect on bad debts.

Like many other firms, Cohen & Slamowitz relies on computer software to help prepare its cases. While many of the cases represent legitimate claims, critics say the lawsuits are too often based on inaccurate or incomplete information about the debtor or the amount owed. Already, some state legislators and judges have tried to crack down on collection lawsuits, and on Monday, the Federal Trade Commission weighed in, saying the system for resolving disputes over consumer debts was broken and in need of “significant reforms.” The commission, which says debt collection is its top consumer complaint, proposed that states require collectors to include more information about debts in their lawsuits, including a breakdown of the current balance by principal, interest and fees, and the relevant terms of the original credit contract, if not the contract itself. The agency also urged states to adopt measures to make it more likely that consumers would show up in court to defend themselves; currently, most do not, resulting in default judgments. “We are pushing very hard to make certain that debt collectors have sufficient substantiation, particularly when a consumer challenges the debt,” said David Vladeck, director of the commission’s Bureau of Consumer Protection. The commission, which has limited authority to write debt collection rules, urged states to take action because most collection cases are filed in state courts.

The litigation boom has been propelled by fundamental changes in the way debts are collected, particularly for credit cards. In recent years, credit card companies have increasingly sold off debt they have considered uncollectible to debt buyers, usually for 5 cents or less on the dollar. The debt buyers, in turn, may try to collect the debt themselves using traditional practices like sending letters or making phone calls to a consumer to try to arrange a payment plan. Increasingly, they are choosing to sue instead. Collection law firms are able to handle such large volumes of cases because computer software automates much of their work. Typically, a debt buyer sends a law firm an electronic database that contains various data about consumers, including name, home address, the outstanding balance, the date of default and whether interest is still accruing on the account.

Once the data is obtained by a law firm, software like Collection-Master from a company called Commercial Legal Software can “take a file and run it through the entire legal system automatically,” including sending out collection letters, summonses and lawsuits, said Nicholas D. Arcaro, vice president for sales and marketing at the company. No group has definitive statistics on debt collection lawsuits, but federal regulators, collection lawyers and judges say the numbers have increased and are straining the court system. Most consumers fail to show up in court, and those who do rarely have a lawyer. A court judgment gives debt buyers the ability to collect on the debt through actions like wage or property garnishment. “What they are hoping to recover is the full dollar on some of it,” said Robert J. Hobbs, deputy director of the National Consumer Law Center, an advocacy group. “On most of it, they are hoping to recover 40 or 50 cents on the dollar. And they are hoping to do it with as little work as they can.”

Critics say the business model for some debt buyers and law firms relies on such huge volumes of legal actions that mistakes and abuses are inevitable, in part because the lawsuits are often based on little more than a defendant’s name, address and alleged balance. “It’s the factory approach to practicing law,” said a New Mexico lawyer who represents consumers against debt collectors.

C.E.B.

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Verdicts, Claims & Settlements! - Part IV

2010-07-11T16:35:00.001-07:00

«•July 11, 2010•»

Executive Lawsuit: - Washington, D.C. (9:08 PDT) — In a private meeting with White House officials this weekend, Democratic governors voiced deep anxiety about the Obama administration's suit against Arizona's new immigration law, worrying that it could cost a vulnerable Democratic Party in the fall elections. While the weak economy dominated the official agenda at the summer meeting in Boston of the National Governors Association, concern over immigration policy pervaded the closed-door session between Democratic governors and White House officials and simmered throughout the three-day event. At the Democrats' meeting Saturday, some governors bemoaned the timing of the Justice Department lawsuit, according to two governors who spoke on condition of anonymity.

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Lawsuit: Beating & Breast Exposure!

July 11, 2010

Texas - A federal lawsuit filed Thursday accused a Travis County deputy constable of beating a woman and exposing her breast in front of an elementary school with her grandchildren watching in May 2009. Lawyers with the Texas Civil Rights Project filed the suit against Deputy Constable Richard Furrs on behalf of the woman, who used a pseudonym in the court filings. Furrs targeted the woman because she is a Mexican immigrant, according to the suit. Misdemeanor criminal charges that Furrs filed against the woman were later dropped, the suit said. It said Furrs was suspended for five days, but the constables office would not confirm that. Gwendolyn Doyle, a manager at the office, would only say that Furrs was still employed there. Furrs could not be reached for comment.

The woman went to Sims Elementary School off Springdale Road in East Austin to pick up her grandchildren on May 21, 2009, the suit said. She pulled into the school's driveway, where Furrs was directing traffic, the suit said. It said Furrs began to show the woman where to wait, and as she did, he began yelling at her. The woman thought he was asking for identification, so she reached for her license, the suit said. Furrs then dragged her out of her truck, the suit said.

The lawsuit contained three sworn affidavits by witnesses. One was from Lorena Sanchez, who said she was walking with her daughter from the school to their car and saw Furrs yelling at the woman. Sanchez said she knew the woman and saw Furrs yank her from her truck so forcibly that Sanchez was able to see the woman's feet. She said she saw Furrs beat the woman with his baton and dragged her on the hot pavement, while the woman was yelling in Spanish that she did not know what she did wrong. Furrs was overheard calling the woman an ethnic epithet and told her she needed to speak English because she was in America, the documents said. Another witness said Furrs was yelling slurs at the woman while throwing her around like a rag doll. Sanchez said a few people were trying to take video and photos of the incident, but the constable and other responding officers ordered them not to, the suit said.

Jon Saucedo, a teacher, said he saw the woman on her knees and bleeding from her lip. His statement also said one of her breasts was exposed and that she was crying. Witnesses said the woman begged Furrs to cover her up, and he responded by saying, "I don't care. I like it." Saucedo said he stepped forward and offered to help translate for the woman, but Furrs reached for his gun and told him to back up. Saucedo's statement said that Furrs and his supervisor went to the principal's office to apologize for the incident. Yet, when Saucedo asked Furrs why he thought it was appropriate to reach for his gun, Saucedo said Furrs became enraged and yelled at him. "I felt very intimidated by Mr. Furrs. I thought this meeting was an effort to apologize for this officer's actions the day before, but it quickly turned into another situation where this officer was out of control," Saucedo wrote in his sworn statement.

Maria Jaramillo said her children who witnessed the incident are now traumatized and are afraid of police officers. She said when they see a police car, they try to take off their seat belts and hide.

Beaverton settles suit!

July 10, 2010; 9:16 PM (EDT)

BEAVERTON, Ore. -- An Oregon city has agreed to pay $19,000 to settle a federal lawsuit by a man the police arrested for using a cell phone to record the voice of an officer arresting a friend. Beaverton police Chief Geoff Spalding says it's unlikely his officers would again arrest somebody for recording the voice of an officer, although he's not ruling it out. A similar incident in Portland prompted city attorneys to advise the police that officers can't seize cameras or arrest people for recording them in public, except in rare circumstances. The settlement comes almost two years after Beaverton police arrested Hao Xeng Vang, who used his cell phone to capture the arrest of one of his friends at the Valley Lanes Bowling Center in Beaverton. Vang made no attempt to hide his recording and even narrated what he was capturing, said his attorney. "He kept on saying, 'Don't worry. I've got it on tape.'"

After about 10 minutes, Officer Jason Buelt seized Vang's phone and arrested him. The city returned the phone in October, but the recording was deleted. Lucey said officials made copies. After an investigation, Spalding said, Buelt was disciplined for deleting the recording, but Spalding declined to provide details. Buelt is now a detective. Prosecutors dropped the case against Vang on the grounds the audio quality was so poor it might not have qualified as a violation of the law. Beaverton city lawyers wrote two memos saying that in most encounters with residents police don't have an expectation of privacy and they should assume they are being recorded. Citing Oregon's eavesdropping laws, Spalding said he believes his officers can arrest people who record officers' private conversations without permission. But the likelihood of arrest, Spalding said, "is pretty low." "That is a technical violation of the law. That doesn't mean there's going to be an arrest," Spalding said.

Vang's attorney said the legal process has taken a toll on Vang, who lives in Aloha with his wife and children and did not want to discuss his settlement. Vang originally sought about $190,000. The city's insurance carrier will pay the settlement and $41,500 in legal expenses, city spokeswoman Amy Miner said. Vang's legal bills exceeded the settlement, but his attorney said he will reduce some fees so Vang receives some money.

Justice Relation Tazed!

July 10, 2010 (9:38 PM - PDT)

MARRERO - Family members of Derek Thomas, nephew of U.S. Supreme Court Justice Clarence Thomas, are alleging that the younger Thomas, was punched and tased when he was admitted to West Jefferson Hospital Thursday. The family says the use of the taser caused Thomas to have a seizure. According to at statement from the family, Derek Thomas, who is epileptic, refused to put on a hospital gown and tried to leave his examination after a possible suicide attempt. They say security "punched him in his lip, pulled out more than a fistful of his dreadlocks and tasered him to restrain him." Doctors knew about Thomas' epilepsy, but ordered security officers to use the taser anyway, instead of sedating him, the family says. The family is trying to have Thomas transferred to another facility. Justice Thomas is expected to travel to New Orleans as soon as possible to check on his nephew.

Wal-Mart Dumps!

July 11, 2010 (Original Story Date 5/3/10)

SAN DIEGO (WLSB) — Prosecutors say Wal-Mart Stores (WMT) has agreed to pay $27.6 million to settle claims of improperly handling and dumping hazardous waste at stores across California. San Diego County District Attorney Bonnie Dumanis announced the settlement Monday involving more than 20 federal, state and local prosecutors and environmental agencies. She called the settlement one of the largest of its type in the United States. Dumanis says Wal-Mart employees were caught illegally storing and dumping hazardous waste at 236 stores and distribution centers across California. She says the investigation began five years ago when a San Diego Health Department employee saw a worker pouring bleach down a drain. Phyllis Harris, who handles Wal-Mart's environmental affairs, says the Bentonville, Ark.-based retailer has improved since the violations were discovered.

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Verdicts, Claims & Settlements! - Part III

2010-07-08T09:55:00.000-07:00

«• July 1, 2010•»

New Lawsuit: - Bank of America's mortgage unit Countrywide is being sued in Illinois for discriminating against black and Latino borrowers. According to a report in Bloomberg, Illinois's attorney general, Lisa Madigan, has filed a suit alleging that Countrywide disproportionately steered minorities into risky subprime mortgages: "Countrywide's illegal discriminatory lending practices destroyed the wealth and dreams of thousands of African American and Latino homeowners," Madigan said in the statement. "Bank of America needs to be held accountable by taking financial responsibility for cleaning up the devastation of the predatory company that it chose to take over." Remember that back in 2006, Eliot Spitzer, when he was still New York's attorney general, sued Countrywide for similar practices. The mortgage lender settled, compensated minority borrowers and adopted measures to prevent discriminatory pricing.

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Jury Verdict:
$18.5 million in punitive damages!

July 8, 2010
Original Story Date: April 24, 2010 (9:17 AM - PDT)

(Plaintiff Kerry Lewis (pictured left) smiles during a news conference in May 2010, after a jury ordered the Boy Scouts of America to pay $18.5 million to Lewis, who was sexually abused by a former assistant Scoutmaster.) PORTLAND, Ore. (WLSB) — An Oregon jury's decision to award a man $18.5 million in punitive damages in his case against the Boy Scouts of America will likely be the first of many financial hits the Scouts will take as it prepares to defend itself against a series of sex abuse lawsuits. The jury ordered the Scouts to make the payment to Kerry Lewis, the victim of sex abuse by a former assistant Scoutmaster in Portland in the early 1980s. The case was the first of six filed against the Boy Scouts in the same court in Oregon, with at least one other separate case pending. If mediation fails to settle the other cases, they also could go to trial. Lawyers for Lewis had asked the jury to award at least $25 million to punish the Boy Scouts for what the jury had already agreed in the first phase of the trial was reckless and outrageous conduct. They also noted the Boy Scouts had never apologized to Lewis, who said at a news conference that the verdict shows that "big corporations can't be above the law." Lewis added that an apology "would mean something to me, but I'm not expecting it."

The jury decided on April 13, 2010 that the Boy Scouts were negligent for allowing former assistant Scoutmaster Timur Dykes to associate with Scouts, including Lewis, after Dykes admitted to a Scouts official in 1983 that he had molested 17 boys. The jury awarded Lewis $1.4 million in compensatory damages with that verdict and agreed the Boy Scouts were liable for punitive damages to be determined in the second phase of the trial that ended Thursday.

Scouts officials declined to comment on details of the case because other cases are pending, but issued a statement saying it maintains a "rigorous" system to screen Scout leaders. "The Boy Scouts of America has always stood against child abuse of any kind," it said. The verdict came as the Boy Scouts mark their centennial.

For more than a month, dueling experts and a parade of witnesses from both sides wove together a picture of an organization that compiled secret files on child molesters for nearly the entire century it has been in existence. The "ineligible volunteer" files, nicknamed the "perversion files," are kept under lock and key at Scouts headquarters, now in Irving, Texas, a practice that began back in the 1920s. The Scouts said the files were put to good use quietly keeping molesters out of the organization for all those years. But Lewis' attorneys argued that the Scout should have brought the files out into the open decades ago. After an Oregon Supreme Court ruling, the jury was permitted to see about 1,000 of the files from 1965-85.

In determining the award, the jury was allowed to consider the wealth of the Boy Scouts to decide the amount of punitive damages. Kelly Clark and Paul Mones, the attorneys for Lewis, told them the Boy Scouts were nearly a $1 billion corporation that could well afford punitive damages intended to deter them from similar conduct in the future. The amount of the damages surprised Patrick Boyle, editor of the Youth Today newspaper and author of a book about sex abuse within the Scouts. "That's a lot of money. This is by far the biggest award against the Scouts for sex abuse, probably by several times," Boyle said. The Scouts have said they plan to appeal Friday's decision, and 60% of any punitive damages they finally pay in the case will go to the Oregon crime victims fund under state law.

Because the Boy Scouts have settled some lawsuits out of court, it is difficult to say where the total awards imposed by the Portland jury rank with those of the past. In a 1987 sex abuse case, an Oregon jury awarded more than $4 million to the victim, including $2 million in punitive damages against the Scouts that were thrown out when the case was appealed. A jury in San Bernardino, Calif., awarded $3.75 million to three sex abuse victims in 1991. Boyle said from 1984 through 1992, the Scouts were sued at least 60 times for alleged sex abuse with settlements and judgments totaling more than $16 million.

The Pedo-Files!

Original Story Date: March 24, 2010 (10:51 PM - PDT)

PORTLAND, Oregon (WLSB) — A psychologist testifying in a $14 million lawsuit against the Boy Scouts of America says the organization put boys at risk by hiding information about child molesters among troop leaders. Gary Schoener, a national expert on child sex abuse, told a jury in Portland on Wednesday that confidential files the Boy Scouts kept on suspected abusers from 1965-1984 were the deepest and most complete information about pedophiles then available in the country. He said the organization showed a reckless indifference by not sharing the information with parents and authorities. Attorneys for the Boy Scouts of America say the organization kept files on suspected molesters to protect children.

Original Story Date: March 19, 2010 (08:54 AM - PDT)

(Relying on about 1,000 confidential Boy Scouts of America files, the lawyer for a man sexually abused in the 1980s by Timur Dykes, a Scout leader (pictured left) who later admitted to being a serial molester, claims the organization has covered up abuse for decades.) Confidential files from the Boy Scouts of America show that the organization knew of at least 1,000 suspected child molesters from 1965 to 1985 and tried to hush it up, an attorney in a sexual abuse lawsuit charges.

The accusations came in the opening day Wednesday of a $14 million civil suit in Portland, Ore., brought by the victim of a man who confessed to Scout leaders that he had molested 17 Scouts but was allowed to continue participating in Scouting activities, according to Corrupt Justice™ reports. The Boy Scouts had fought to keep the files confidential, but the state Supreme Court rejected their argument that opening them could damage the lives and reputations of people not a party to the lawsuit, the Associated Press says. Most previous cases were settled out of court, which kept the files from being introduced at a trial.

The attorney for the victim, charged that the organization knew it had pedophiles, but allowed a local assistant Scoutmaster, Timur Dykes, who had pleaded guilt to sexual abuse charges, and others other to continue working with boys.

The Boy Scouts of America attorney argued that sexual abuse of children isn't specific to the Scouts, The Oregonian writes. He also said child molesters are difficult to track and that the organization kept confidential files on them in an effort to protect children.

An attorney for the Cascade Pacific Council, which is also being sued, said that the head of the local group "acted immediately" to inform parents about Dykes.

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Verdicts, Claims & Settlements! - Part II

2010-07-01T11:10:00.000-07:00

«• July 1, 2010•»

New Lawsuit: July 1, 2010 - Bank of America's mortgage unit Countrywide is being sued in Illinois for discriminating against black and Latino borrowers. According to a report in Bloomberg, Illinois's attorney general, Lisa Madigan, has filed a suit alleging that Countrywide disproportionately steered minorities into risky subprime mortgages: "Countrywide's illegal discriminatory lending practices destroyed the wealth and dreams of thousands of African American and Latino homeowners," Madigan said in the statement. "Bank of America needs to be held accountable by taking financial responsibility for cleaning up the devastation of the predatory company that it chose to take over." Remember that back in 2006, Eliot Spitzer, when he was still New York's attorney general, sued Countrywide for similar practices. The mortgage lender settled, compensated minority borrowers and adopted measures to prevent discriminatory pricing.

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$269.2 million Jury Verdict!

July 8, 2010

(John Carpenter, left, an Internal Revenue Service employee from Hamden, Conn., sits across the console from Regis Philbin, host of "Who Wants To Be a Millionaire," Carpenter made history by being the first million dollar winner of the popular game show, in November 1999.) RIVERSIDE, Calif. (WLSB) — A federal jury has awarded the creators of "Who Wants to Be a Millionaire" $269.2 million in damages because they didn't get their fair share of profits from the popular Walt Disney Co. (DIS) game show. Wednesday's ruling in federal court in Riverside, Calif., was a victory for London-based Celador International. Celador attorneys blamed Hollywood accounting, arguing that a series of deals between several Disney companies made it appear the show was operating in the red. The British company asked for damages up to $395 million. Disney immediately issued a statement saying it plans to appeal.

$20 million settlement!

July 1, 2010

SACRAMENTO, Calif. – California lawmakers approved a $20 million settlement Thursday with the family of Jaycee Dugard (pictured above, left) who was kidnapped as a girl and held captive in a secret backyard for 18 years by a paroled sex offender. Dugard, 30, resurfaced last August with two daughters she bore with Phillip Garrido, a convicted rapist (pictured above, right). Dugard, her mother and daughters filed claims in February saying state officials with the Department of Corrections and Rehabilitation failed to do their jobs. Parole agents began supervising Garrido in 1999 but failed to discover Dugard. The Dugard family members claimed psychological, physical and emotional damages.

"I can't emphasize enough that we've got to be much more prudent in terms of how we provide oversight for released prisoners in the state of California," Assemblyman Ted Gaines, R-Granite Bay, said. Attorneys for the Dugards did not immediately respond to calls seeking comment. Garrido and his wife, Nancy (pictured left to right) have pleaded not guilty to charges that they kidnapped and raped the young woman. Dugard and her children were hidden at the Garrido home in the eastern San Francisco Bay area city of Antioch, authorities said.

"Jaycee and her children, now 13 and 16, are now living in seclusion and will need many years of therapy, education and health care," said Assemblyman Felipe Fuentes, D-Sylmar.

Lawmakers approved the settlement with a 30-1 vote in the Senate and a 62-0 vote in the Assembly. The money for the Dugards will come from the state's hard-hit general fund, which pays for most state operations. It comes while the state faces a $19 billion deficit as it enters the new fiscal year without a budget. The settlement made up the bulk of the money approved in AB1714, which settles three other claims for a combined $1.49 million.

Assemblyman Jim Nielsen, R-Yuba City, said it was wise for the state to pay the claim quickly rather than fight a court battle that he said "exacerbates the grievous loss of the victims and the lifelong condemnation and pain of their families." He predicted the state also will pay claims as well in the case of John Albert Gardner III, who pleaded guilty to killing two San Diego County teenagers. Parole agents were also faulted in that case for failing to send Gardner, a convicted sex offender, back to prison.

I-Phone 4 Sued for bad Job!

July 1, 2010

THE SELLER OF SHINY TOYS that it apparently rushes to market without testing them too much, Apple is being sued by a couple of people who aren't happy about the Iphone 4 antenna problem. Already part of Apple infamy, the Iphone 4 has an antenna that can be blocked should the user decide to hold the thing to make a call, especially with their left hand. Although Steve jobs thinks the problem can be solved by holding the Iphone another way, perhaps with two fingers, this is not really good enough. Reacting to this, two disgruntled US Iphone 4 customers are suing Apple.

Gizomodo has the court dockets and a glance at them tells us that Kevin McCaffrey and Linda Wrinn will argue that the devices are defective and drop calls when "held in a manner consistent with normal wireless phone use." The pair of them can't have been shy of offers from lawyers keen to flex their muscles, get in the papers, and buy a holiday home, and in this instance, the attorneys have decided to throw everything at Apple. So, Apple is being sued for being negligent, colluding with AT&T to mislead people, fraud by concealment, design defects and failing to honour its warranty.

There is plenty of information for the courts to go on and the papers include all the juicy information that's been filling blogs for days. Kicking off with Jobs' advice on how to use your hands, it also includes evidence of similar tips given out by Apple helpdesk staffers and Apple's decision not to fix the problem under warranty. Apple sold 1.7 million Iphone 4s in just three days, but it has not released any information on how many people have tried to return them.

Lucas Loses!

June 30, 2010

SAN RAFAEL, CA -- A Marin County jury awarded $113,800 in damages against filmmaker George Lucas' company Wednesday for withdrawing a job offer from a San Francisco woman after she disclosed that she was pregnant. Lucasfilm Ltd. denied discriminating against Julie Veronese, and said it revoked its offer of a 30-day job in 2008 as a manager at Lucas' San Anselmo estate for reasons unrelated to her pregnancy. But the Superior Court jury, after 2 1/2 days of deliberations in Veronese's lawsuit, found that Lucafilm had discriminated against her because she was pregnant. Jurors also agreed with Veronese that she had been assured of an ongoing position after a 30-day tryout. The panel awarded her $93,800 for lost wages and $20,000 for emotional distress. It rejected a request for punitive damages. Veronese's lawyer, who is also her mother-in-law, said she would seek as much as $1.2 million in attorneys' fees from Lucasfilm. "This verdict is David smacking Goliath with the biggest rock you can find," Alioto said. "Women who are pregnant are so discriminated against, and nobody talks about it." Veronese, 37, said she was happy about the verdict but would have preferred to keep the job. "I thought I had found a place where I fit in," she said. "The minute I told them I was pregnant, I just watched it crumble."

Lucasfilm said it would appeal. "Lucasfilm is a family-friendly company committed to equal employment opportunity with a long track record of providing a supportive work environment free of discrimination," the company said in a statement.

Veronese applied to become an assistant manager at Lucas' personal headquarters in April 2008. She signed a contract for a temporary 30-day position two months later but said she was told it was a probationary period for a permanent $75,000-a-year job. Two days later, and three days before she was to start work, Veronese told her prospective supervisor, Sarita Patel, that she was pregnant. She said Patel had put the job on hold and had repeatedly delayed her starting date until she complained by e-mail in August that she was being mistreated because of her pregnancy. Lucasfilm withdrew the job offer the next day.

Jurors were shown an e-mail that Lucas' executive assistant sent to Patel, the day the company learned Veronese was pregnant, expressing concern about whether she would be able to do the job while pregnant. But defense witnesses said Patel, who had hired other pregnant women, had decided to revoke the offer to Veronese after her accusatory e-mail in August showed her to be self-centered, disrespectful and dishonest.

Lucasfilms' attorney also told jurors that Veronese had lied under oath about the date she learned of her pregnancy, which was nearly a month before she disclosed it to Patel. Alioto countered that Veronese had no legal obligation to tell the company she was pregnant. Lucas testified June 17 that he had not been involved in the decision to hire Veronese or withdraw her job offer.

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Verdicts, Claims & Settlements! - Part I

2010-06-24T12:48:00.001-07:00

«• June 24, 2010•»

Pending Lawsuit: June 24, 2010 - A California High School sophomore was severely injured last week when he fell from the third-story of a building at St. Mary's College. Ryan McNeely, who recently finished his freshman year of high school, was attending an overnight football camp at St. Mary's last week, said San Ramon Valley Unified School District Spokesman Terry Koehne. When a group of boys became locked out of their dorm room after curfew, McNeely volunteered to help them by being lowered from his room on the fourth floor into their third-floor window, using a coaxial television cable, Koehne said. The cable snapped and McNeely fell, breaking his legs, wrists and arms. He was taken to a local hospital and has undergone multiple surgeries. Koehne said he did not sustain any head, spine or internal injuries. Koehne said he believed the accident happened on Saturday but wasn't certain. McNeely was attending the optional football camp to train for next year's junior varsity team.. A lawsuit is sure to follow!

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Shoot & Sued!

June 21, 2010

OAKLAND — A drug suspect shot by Oakland police is suing the city for $1.5 million, disputing police reports of the shooting. Tavares Cobb, a 29-year-old Oakland resident, was shot June 5, 2008, after police approached him during a drug stakeout. Police said after the shooting that officers were conducting a surveillance operation in the 2300 block of 88th Avenue when they observed Cobb, stopped behind the wheel of a Cadillac Eldorado, making a transaction. Police said they chased Cobb north along city streets to 82nd and Bancroft avenues, where he rear-ended a vehicle stopped at a traffic light. As two officers approached the stopped car, one of them reached inside the car to restrain Cobb, but Cobb put his car in reverse, brushing another officer and bumping the marked police car officers had used to pursue him, officials said.

Police officials said after the shooting that Officers Christopher Cardona and Christophe Marie opened fire when Cobb (pictured left) began driving forward again and that Cobb was using the car as a weapon. Cobb was badly hurt and hospitalized. John Burris and Adante Pointer, Cobb's attorneys, said that police accounts of the shooting are inaccurate and that witnesses have come forward contradicting their version. "The facts of what the police did are in dispute," Pointer said. "We don't agree with the way in which the incident is being described. Police reports don't always tell the full story, and if you do some digging, you can find they get it wrong."

Pointer declined to say who his case's witnesses are, but the suit disputes some events in the police version of the shooting. In it, Burris and Pointer say Cobb had been detained after Cardona, Marie and two other officers surrounded Cobb's car. "Without warning or provocation," the suit reads, Cardona "fired his gun into the vehicle." Because of this "unwarranted use of deadly force," the suit says, Cobb feared for his life and tried to drive away, at which point Cardona and Marie fired into the car, shooting Cobb in the chest, abdomen, forehead, groin and hands.

Cobb was shot so badly, according to the suit, that he suffered "physical disfigurement" in addition to pain, suffering and lost income. Cobb seeks $1.5 million in general damages, plus special and punitive damages, attorney's fees and court costs. Both parties agree that no guns were found in Cobb's car. Police said they did find drugs, and Cobb later was convicted of a related crime.

Police spokesman Officer Jeff Thomason declined to comment on the case Monday, deferring to the City Attorney's Office, which has not responded to the suit and also declined to comment.

SJSU Student Sues cops!

SJSU student in videotaped beating case files suit against cops

04/30/2010

A San Jose State student has filed a federal lawsuit alleging San Jose police officers, whose violent and secretly videotaped arrest earlier this year sparked community outrage, violated his civil rights by using excessive force. Phuong Ho, who is here from Vietnam studying to be an actuary, contends police had no reason to strike him with a metal baton more than a dozen times and use a Taser against him when they came to question him about an alleged threat. "The police used unreasonable force on our client and violated his constitutional rights,'' said Duyen Hoang Nguyen, Ho's attorney. "The officers attacked him without cause.'' Ho's lawyers are asking the city and police department, who they say did nothing to curb an environment of officers filing false charges to cover up acts of excessive force, for $6 million in damages. Neither City Attorney Rick Doyle nor police brass would comment on the suit. But Terry Bowman, who represents the officer who used his baton on Ho, said: "It makes me sick that people can disobey a lawful order from police and expect to make money off of it.''

The lawsuit filed in federal court in San Jose on Wednesday comes about two months after the Santa Clara County District Attorney's Office declined to press charges against the officers in the case. District Attorney Dolores Carr has said the video was disturbing but that the officers used force to gain compliance with their instructions. Just a week before that, Carr decided to drop all charges against the 21-year-old Ho, who had been cited for resisting arrest and brandishing a deadly weapon.

Corrupt Justice™ first reported the existence of the cell phone videotape of the beating in October, igniting community protests and helping to spur a series of examinations of the use of force by members of the department. The lawsuit alleges Chief Rob Davis and the city established an environment in which officers "routinely" generate "false charges to cover up the use of excessive force.'' Ho has alleged the officers' violently overreacted on September 3, 2009 when they were called after he picked up a knife and said something threatening to a roommate who had slopped soap on his dinner steak. Captured on cell phone by another roommate, the now infamous, murkily shot video shows an unarmed Ho seemingly cowering on the floor as one officer strikes him repeatedly. The officers "simultaneously yelled different and confusing orders at Ho — while How as being beaten and "Tased,'' the lawsuit says. "Ho, scared and confused, screamed in pain to no avail.''

Although the District Attorney's investigation reported otherwise, the lawyers continue to insist that Ho was struck by the officer after he was handcuffed. Ho's attorneys also contradict the prosecutors' investigation findings by saying Ho suffered a head injury during the police arrest. Corrupt Justice™ posted the video on its Police Brutality Remedies website after it was shown to police commanders, who immediately launched a criminal investigation. All four officers were placed on administrative leave at the time, where they remain pending an internal investigation.

Strange v. Entercom Sacramento LLC!

October 30, 2009

SACRAMENTO, Calif. (AP) — A Sacramento County jury has awarded $16.5 million to the family of a 28-year-old woman who died after participating in a radio station's water-drinking contest. Jennifer Strange, a mother of three, died of acute water intoxication in January 2007 after the challenge to see which contestant could drink the most water without going to the bathroom. A Nintendo Wii video game system was the prize for winning the "Hold Your Wee for a Wii" contest. On Thursday, jurors found Entercom Sacramento LLC, a subsidiary of Philadelphia-based Entercom Communications Corp., liable for the actions of its employees at Sacramento radio station KDND-FM. The station fired 10 employees after the death.

Oakland Sued Again!

OAKLAND -- The city has agreed to pay $412,500 to a man whose arm was broken by an Oakland police officer during a Raiders game in August 2008. Raymond Castillo filed the federal civil rights lawsuit against Oakland and the Oakland Police Department in October 2009. In his suit, Castillo argued that Officer Bryant Ocampo and possibly others used excessive force that caused his arm to break at the elbow. According to court records, Castillo was a union plumber's apprentice and was working full time when the incident occurred. Due to his injuries, he was unable to work for a year and must still undergo medical treatments, said Castillo's attorney, Michael Haddad. Castillo likely will have residual effects from the break for the rest of his life, the lawyer added.

Castillo, a San Francisco 49ers fan who lives in the East Bay, attended the exhibition game between the Raiders and 49ers and sat in the Black Hole, the end-zone area of the Coliseum known for hosting the most die-hard Raiders fanatics. A fight broke out about two rows away, and Castillo said in his lawsuit that he was "jostled and pushed" by Raiders fans but was not involved in the fight.

Still, Castillo said he was tackled by an Oakland police officer, thought to be Ocampo. The officer twisted and bent Castillo's left arm behind his back to apply handcuffs, causing his arm to break, despite the fact that Castillo was not resisting arrest, the suit said. The suit also asserts that the police officers singled out 49ers fans for arrest and berated them. Castillo was treated by paramedics at the scene, then transported by ambulance to a hospital. He was never charged.

The department conducted an internal affairs investigation, but it is not known if Ocampo was disciplined. He currently serves a patrol officer. Haddad said the injuries sustained by his client could only have been caused exactly the way he said it happened. "That's why (the city) paid, there was no way to justify that severe use of force," Haddad said. "There was a lot of rowdiness at that game, but he was taking it easy because he had to work the next day."

Haddad also said it was unfortunate that the city waited to settle until two business days before the trial was scheduled to start because it caused both sides' legal bills to skyrocket. Of the settlement, Castillo will receive $167,500, and Haddad will receive $245,000 in fees and court costs. Alex Katz, spokesman for the city attorney, said the city did not admit liability but recognized that a trial carried risks and settled to limit liability to taxpayers. The city spent $21,000 to hire an outside firm to help with the case.

The hefty settlement comes on the heels of a $300,000 payout last month to Lorenzo Hall to settle a lawsuit that accused Oakland police of planting a gun on him. Hall spent nearly two years in jail.

The city also paid out substantial settlements last year on behalf of the police department, including $6.5 million in July to settle two federal civil rights cases that accused Oakland police of falsifying sworn affidavits to obtain search warrants on homes in East and West Oakland. In October, the city agreed to pay $1.2 million to a woman who was severely burned when police threw a flash-bang grenade into a room after breaking down the door of the home to serve a search warrant.

Larry Reid, president of the Oakland City Council, said every council member is concerned about the amount of money being paid to outside attorneys to handle city cases, as well as the nature of the cases that are being filed against the city and the police department. "It's a real big issue with everybody on the council," he said. "I could probably make money selling tickets to closed sessions if I could. People are concerned over the amount of these large payouts."

October 1, 2009

Oakland police breaking up a brawl in the "Black Hole" at a Raiders-49ers exhibition game at the Coliseum singled out the Niners fans for special abuse and snapped a San Francisco fan's elbow, according to a federal civil rights lawsuit filed today. Raymond Castillo says Officer Bryant Ocampo tackled him for no good reason Aug. 8, 2008, in the Black Hole. The end zone seating area gets its name, the suit notes, from the "extreme fanaticism of the Raiders fans who sit there." It takes a brave man to try to turn the Black Hole into the Red Zone, but there was Castillo, wearing his 49ers sweater, and several friends in their Niners finest. During the fourth quarter of the exhibition game -- won by the Raiders, 18-6 -- a fight broke out two rows from where Castillo and his friends were sitting, the suit says. Castillo says he didn't lift a finger but that he was "pushed and jostled by Raiders fans."

Up rushed Officer Ocampo, who twisted Castillo's left arm behind his back, eventually "snapping" it, says the suit. According to Castillo, Oakland police working the game apparently doubled as fans. His suit says OPD officers "singled out people wearing 49ers jerseys" and taunted them with such comments as, "F-- you, Niners fans," and, "You come to a Raiders game wearing 49ers gear, and now look at you crying."

The suit names Oakland, the Police Department and Ocampo as defendants, and seeks unspecified damages. Sgt. Ray Backman, chief of staff for acting Police Chief Howard Jordan, said he could not comment on pending litigation.

Oakland Settles!

September 25, 2009

The city of Oakland has agreed to pay $1.2 million to settle a federal civil rights lawsuit filed by an unarmed burglary suspect who was left a paraplegic after a police officer shot him in the back. Charles Davis Jr., 46, was shot once in the back Jan. 15, 2007, by Officer Hector Chavez inside the Koinonia Apostolic Church at 9429 MacArthur Blvd.

The incident began about 4:30 a.m. when police arrived at the church to investigate a burglar alarm. Chavez encountered Davis inside the church and shot him, believing he was armed, authorities said. But Davis did not have a gun, and the shot left him a paraplegic, said the suit filed by Davis' attorney.

"It's wrong to shoot an unarmed man, offering no resistance, in the back," said the attorney Friday. "We all hope, on both sides of this case, that both Chavez and Davis will move forward with their lives in a much more positive manner." In court filings, the city denied wrongdoing. The City Council discussed the settlement in closed session in June and is expected to ratify it in October 2009.

In a memo to the council this month, Assistant City Attorney Randolph Hall urged that the deal be approved "as a compromise of this matter and to avoid a potentially adverse jury verdict."

South Gate Settles!

October 6, 2009

LOS ANGELES — A southern California city has agreed to settle a lawsuit brought by current and former police officers who said they were discriminated against and harassed because of their connection to two local Hispanic leaders. The $7 million settlement announced Tuesday, October 6, 2009 ends years of litigation by 14 officers who claimed that they were harassed, unfairly disciplined and denied promotions.

The details of the settlement were made confidential at the request of South Gate, a working-class city just south of Los Angeles with an annual budget of about $100 million.

The officers' lawyer had previously said his clients would receive a total of $19 million, the maximum permitted by the city's insurance policy with American International Group Inc.

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WILSON v. WILKINS - 42 U.S.C. § 1983

2010-06-19T10:55:00.001-07:00

«• June 19, 2010•»

Pending Lawsuit: August 5, 2009 - A San Francisco police officer, Jeffrey John Sung, 32, has been charged in San Mateo County Superior Court with misdemeanor sexual assault for allegedly groping a woman while wearing his police uniform, a deputy district attorney said on August 4, 2009. A lawsuit is sure to follow!

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TAWANA WILSON, PLAINTIFF-APPELLEE,
v.
BOYCE WILKINS, DEFENDANT-APPELLANT, and
METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, DEFENDANT.

United States Court of Appeals, Sixth Circuit Case No. 09-5416 [January 19, 2010].

Before: KENNEDY, MOORE, and WHITE, Circuit Judges.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

Summary: A woman claimed that a police officer, after repeatedly urging her to have her husband arrested, then insisted that she ride in his vehicle, rather than her own, to go to the police station. In the car, he allegedly touched and caressed her hand, stating that he wanted to date her. Upholding the denial of summary judgment for the officer in the woman's lawsuit for violating her Fourth Amendment rights, a federal appeals court found that a seizure occurred, in that the woman was captive in a moving police car under the officer's control, and had a clearly established right to be free of his sexual overtures and repeated touches while in his control. Wilson v. Wilkins, #09-5416, 2010 U.S. App. Lexis 976 (Unpub. 6th Cir.).

OPINION BY: WHITE, Circuit Judge.

In this suit brought under 42 U.S.C. § 1983, Defendant Boyce Wilkins (Wilkins), a police officer with former-Defendant Metropolitan Nashville Police Department (MNPD), appeals the district court's denial of his motion for summary judgment brought on qualified immunity grounds. [ 1 ] We affirm.

I.

Plaintiff Tawana Wilson (Wilson) called the MNPD on December 24, 2006, after she and her husband, Timothy Wilson, had a domestic dispute. The MNPD declined to intervene. On December 28, 2006, Wilson again called the MNPD and reported that her husband had grabbed her around the neck and shoved her against a wall. Two male MNPD officers, Wade and Smith, responded. Wilson told them that she just wanted her husband to leave, to give her some "space." Shortly after, Defendant Officer Wilkins arrived. Officer Wilkins repeatedly urged Wilson to have her husband arrested. Wilson told Officer Wilkins that she did not want her husband arrested, but Officer Wilkins persisted, and Wilson eventually agreed.

Officer Smith informed Wilson that her husband would be taken "downtown" to appear at night court. Wilson wanted to drive her own vehicle, but Officer Wilkins insisted that she ride with him, and asked that she sit in the front seat. She did so. Because Wilson had lived in the area for most of her life, she knew the three quickest routes to get downtown. Officer Wilkins passed the shortest route downtown, and then passed the second route. During the drive, Officer Wilkins rubbed and caressed Wilson's hand three times, looked at her seductively, told her she was beautiful, and said he wanted to date her. The first time Officer Wilkins caressed Wilson's hand, Wilson thought he was just being sympathetic, because she had cried in response to his inquiring what had happened with her husband. The second and third touchings occurred after Wilson had stopped crying, and Wilson considered them offensive and became scared.

After passing the two most direct routes downtown, Wilkins continued driving north, away from downtown. Although there was a third route available (I-65) in the direction Wilkins was driving, Wilson did not think Wilkins would drive that far north just to go downtown. Wilson did not believe Wilkins was taking her to the police station and, at a point when the police vehicle slowed, she unbuckled her seat belt and opened the passenger door. Officer Wilkins grabbed her sleeve, but Wilson was able to jump out of the police vehicle and run toward a motel, screaming.

After Wilson jumped from Wilkins's police vehicle and screamed at passers-by for help, Wilkins called for backup, requesting a female officer. Officer Angela Booker, whom Wilson knew, responded to the scene, and Wilson told her something to the effect that Officer Wilkins was trying to rape her.

Wilson brought suit in Tennessee circuit court asserting claims under 42 U.S.C. § 1983, alleging Officer Wilkins's conduct violated the Fourth and Fourteenth Amendments, as well as state statutory claims of assault and official misconduct and common law assault and battery.[ 2 ] Wilson alleged that because of the incident, one of her vocal chords was damaged, did not respond to treatment and would require corrective surgery. Defendants removed the case to the United States District Court.

A

Officer Wilkins moved for summary judgment, asserting inter alia that Wilson failed to state a claim under the Fourth Amendment because she was not "seized," and that she failed to state a claim under the Fourteenth Amendment because his conduct would not "shock the conscience" for purposes of the Fourteenth Amendment. Wilkins also asserted that even if a constitutional violation occurred, he is entitled to qualified immunity because there was no clearly established right at the time of the incident that would have informed him that he was violating the Constitution.

The district court denied Wilkins's motion. It analyzed Wilson's claims under the Fourth Amendment, found that a reasonable jury could conclude that Wilson had been "seized," indicated that the clearly established right violated was Wilson's constitutional right not to have her physical freedom impinged by a state actor, and found that Wilkins's actions were not objectively reasonable:

* * * even assuming that Plaintiff "voluntarily" entered Officer Wilkins' patrol car, a reasonable jury could readily conclude that she was seized. Construed in her favor, the facts show that once Plaintiff was in the vehicle, she was captive in a moving police vehicle. While being so held, Officer Wilkins chose not to drive directly downtown, but chose instead to make untoward comments and to touch the Plaintiff in an offensive manner.

The Court also rejects Officer Wilkins' suggestion that the rights allegedly violated were not clearly established. Mendenhall[ 3 ] was decided in 1980 and Graham[[ 4 ]] was decided in 1989. Moreover, in the landmark decision of Terry v. Ohio, 392 U.S. 1, 16 (1968) decided in 1968, the Supreme Court held that "[w]henever a police officer accosts an individual and restrains his freedom to walk away, he has `seized' that person." Moreover, Officer Wilkins' actions were not objectively reasonable. Having insisted that Plaintiff ride with him, Officer Wilkins should have merely driven Plaintiff, a victim of a crime, downtown. He should not have detoured and made untoward advances.

II.

Qualified immunity is generally available for "government officials performing discretionary functions . . . insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Slusher v. Carson, 540 F.3d 449, 453 (6th Cir. 2008). The plaintiff bears the ultimate burden of demonstrating that the defendant is not entitled to qualified immunity. Baker v. City of Hamilton, 471 F.3d 601, 605 (6th Cir. 2006). The district court must consider the undisputed evidence produced as a result of discovery, viewed in the light most favorable to the non-moving party. Poe v. Hayden, 853 F.2d 418, 425 (6th Cir. 1998). A court required to rule on the qualified immunity issue must consider whether the facts alleged show the officer's conduct violated a constitutional right and whether that constitutional right was clearly established. Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled on other grounds by Pearson v. Callahan, 129 S. Ct. 808 (2009). "The judges of the district courts and courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Pearson, 129 S. Ct. at 818. This court reviews the district court's denial of qualified immunity de novo. Carver v. City of Cincinnati, 474 F.3d 283, 285 (6th Cir. 2007).

A constitutional right is clearly established if "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier, 533 U.S. at 202. "The contours of the [constitutional] right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Ciminillo v. Streicher, 434 F.3d 461, 468 (6th Cir. 2006) (internal quotation marks omitted). "This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful." Anderson v. Creighton, 483 U.S. 635, 640 (1987). "[O]fficials can still be on notice that their conduct violates established law [even] in novel factual circumstances." Safford Unified Sch. Dist. v. Redding, 129 S. Ct. 2633, 2643 (2009) (internal quotation marks omitted). "In determining whether a reasonable officer would have known that his conduct was unlawful, this Court looks first to the precedents of the Supreme Court, then to case law from this circuit, and finally to decisions from other circuits." Humphrey v. Mabry, 482 F.3d 840, 852 (6th Cir. 2007).

A

We agree with the district court that Wilson's claims are properly analyzed under the Fourth, rather than Fourteenth, Amendment. The district court correctly noted in this regard:

Plaintiff sues for both Fourth and Fourteenth Amendment violations pursuant to 42 U.S.C. 1983. However, where a plaintiff complains of an "unreasonable search and seizure," the claim is more properly analyzed under the Fourth Amendment than the substantive due process provision of the Fourteenth Amendment, since the former is a "more explicit textual source of constitutional protection." Graham v. Connor, 490 U.S. 386, 395 (1989). Given the explicit protections afforded by the Fourth Amendment, a plaintiff cannot "also proceed with a claim under the `more generalized notion of substantive due process.'" Wilson v. Collins, 517 F.3d 421, 428 (6th Cir. 2008) (citing, Graham, 490 U.S. at 395); see United States v. Lanier, 520 U.S. 259, 272 [n.7] (1996) ("Graham simply requires that if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process"). . . . [ 5 ]

B

Next, we must determine whether Wilson alleged sufficient facts and produced evidence to demonstrate a "seizure" under the Fourth Amendment and, if so, whether any such seizure could be considered constitutionally unreasonable. See Slusher, 540 F.3d at 454. We review de novo the district court's holding that Wilkins's touchings and remarks of a sexual nature to Wilson while she was in a moving vehicle under Wilkins's control, during a ride he extended by taking a circuitous route to police headquarters, constituted a "show of authority." See Graham v. Connor, 490 U.S. 386 (1989). The circumstances that led Wilson to ride with Officer Wilkins were that Wilkins repeatedly urged Wilson to have her husband arrested. Although Wilson told Officer Wilkins that she did not want her husband arrested, Wilkins persisted, and Wilson eventually agreed. Wilson wanted to drive her own vehicle downtown, where her husband was being taken, but Officer Wilkins insisted that she ride with him, and asked that she sit in the front seat. Once captive in Wilkins's moving police vehicle, Wilkins touched and caressed Wilson's hand several times, and told her he wanted to date her.

The Fourth Amendment protects "[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures." U.S. CONST. amend. IV. "A `seizure' triggering the Fourth Amendment's protections occurs only when government actors have, by means of physical force or show of authority, in some way restrained the liberty of a citizen." Slusher, 540 F.3d at 454 (quoting Graham, 490 U.S. at 395 n.10); see also Terry v. Ohio, 392 U.S. 1, 16 (1968) ("whenever a police officer accosts an individual and restrains his freedom to walk away, he has `seized' that person.").

[A] person has been "seized" within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.

United States v. Mendenhall, 446 U.S. 544, 554 (1980) (citations and footnote omitted) . On the other hand, "not every governmental interference with an individual's freedom of movement raises such constitutional concerns that there is a seizure of the person." Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 618 (1989).

C

Analyzing the incident in temporal segments,[ 6 ] Wilkins asserts that the district court erred in holding that he seized Wilson during what he classifies as the third time segment — when he touched her hand and made untoward comments to her. We disagree.

We review de novo the district court's holding that a seizure occurred. United States v. Buchanon, 72 F.3d 1217, 1223 (6th Cir. 1995). Whether a seizure occurred depends on the circumstances. Mendenhall, 446 U.S. at 554. We reject Wilkins' characterization of the district court's conclusion that a seizure occurred as resting only on the touchings and concomitant comments. The court's opinion noted that a physical touching is a circumstance that might indicate a seizure, and that in Slusher[ 7 ] this court concluded that the plaintiff had been seized when a police officer grabbed her hand. Beyond that, we think it clear that the district court's determination that a seizure occurred was a contextual one — Wilson's being "captive" in a "moving police vehicle" which was under Wilkins's control. Wilkins asserts that even if this court finds that he seized Wilson, there was no clearly established law that would have told him that his conduct under these circumstances — however inappropriate it may have been — violated the Fourth Amendment.

D

The district court noted that Mendenhall was decided in 1980 and Graham in 1989. Under Mendenhall, a seizure occurs when "in view of all the circumstances surrounding the incident, a reasonable person would have believed that [s]he was not free to leave." 446 U.S. at 554. Under Graham, a seizure triggering the Fourth Amendment's protections occurs when a government actor in some way restrained the liberty of a citizen by means of physical force or show of authority. 490 U.S. at 395 n.10.

Under the cases the district court relied on, the right of Wilson's infringed — to be free from having her liberty impinged by a state actor exerting authority over her — was clearly established in December 2006 when this incident occurred. When considering whether qualified immunity applies, "[p]re-existing law need not address the very question at hand; rather, `[t]he contours of the right must be sufficiently clear.'" Logsdon v. Hains, 492 F.3d 334, 343 (6th Cir. 2007) (quoting Center for Bio-Ethical Reform v. City of Springboro, 477 F.3d 807, 830 (6th Cir. 2007).

The remaining question is whether Wilson alleged sufficient facts and supported the allegations by sufficient evidence to indicate that what Wilkins allegedly did was objectively unreasonable in light of the clearly established constitutional right. Dickerson v. McClellan, 101 F.3d 1151, 1158 (6th Cir. 1996). The district court concluded that Wilkins's actions were "not objectively reasonable. Having insisted that Plaintiff ride with him, Officer Wilkins should have merely driven Plaintiff, a victim of a crime, downtown. He should not have detoured and made untoward advances." Viewing the facts in a light most favorable to plaintiff, we agree. A reasonable officer would have known that he was not free to make sexual overtures and repeatedly touch a citizen in his control in a moving vehicle.

AFFIRMED.

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$10 Million Dollar "Recission" Verdict!

2009-09-17T19:59:00.000-07:00

«• September 17, 2009 •»

$2.3 Billion Dollar Settlement: A Pfizer subsidiary, Pharmacia & Upjohn Co., agreed to plead guilty in early September to a felony violation of the Food, Drug and Cosmetic Act for misbranding its COX-2 inhibitor, Bextra, for off-label uses. The company agreed to pay $1.3 billion in criminal fines for systematically promoting off-label Bextra use to physicians through marketing materials, drug rep talking points and more. Pfizer will pay another $1 billion ($2.3 billion total settlement) to settle whistle-blower lawsuits filed under the False Claims Act that alleged the company promoted off-label uses of Bextra, Geodon, Zyvox and Lyrica from 2001 to 2008. According to whistle-blower lawsuits and the settlement, Pfizer allegedly used tactics such as ghostwritten articles and drug rep-falsified doctor requests for off-label information.

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Recission

September 17, 2009

The South Carolina Supreme Court has ordered an insurance company to pay $10 million for wrongly revoking the insurance policy of a 17-year-old college student after he tested positive for HIV. The court called the 2002 decision by the insurance company "reprehensible." That appears to be the most an insurance company has ever been ordered to pay in a case involving the practice known as rescission, in which insurance companies retroactively cancel coverage for policyholders based on alleged misstatements - sometimes right after diagnoses of life-threatening diseases.

The ruling emerges from a conservative Southern state with one of the most pro-business climates in the country. And it comes as progressive Democrats on Capitol Hill are pressing for health care reforms, such as a public insurance option, that reflect wariness about the private insurance industry's motives.

The Supreme Court on Monday upheld a lower court's verdict against Fortis Insurance, now known as Assurant. The trial jury had awarded the former college student, Jerome Mitchell, $15 million in punitive damages; the Supreme Court reduced that amount by $5 million.

Mitchell learned that he had HIV when, while heading to college, he donated blood. Fortis then rescinded his coverage, citing what turned out to be an erroneous note from a nurse in his medical records that indicated that he might have been diagnosed prior to his obtaining his insurance policy.

Before the cancellation of the policy, an underwriter working for Fortis wrote to a committee considering whether or not to rescind his policy: "Technically, we do not have the results of the HIV tests. This is the only entry in the medical records regarding HIV status. Is it sufficient?" The underwriter's concerns were ignored and the rescission went forward.

In the ruling, Chief Justice Jean Hoefer Toal (pictured left) wrote: "We find ample support in the record that Fortis' conduct was reprehensible ... Fortis demonstrated an indifference to Mitchell's life and a reckless disregard to his health and safety."

An investigation this summer by the House Energy and Commerce Committee, and earlier ones by state regulators in California, New York and Connecticut, found that thousands of vulnerable and seriously ill policyholders have had their coverage canceled by many of the nation's largest insurance companies without any legal basis. The congressional committee found that three insurance companies alone made at least $300 million over five years from rescission. One of those three companies was Assurant.

In Febuary 2008, a private arbitration judge in Los Angeles ordered Health Net Inc. to pay more than $9 million to a breast cancer patient whose health insurance it revoked shortly after her diagnosis and while she was undergoing chemotherapy. The plaintiff in that case, Patsy Bates, a then-52-year-old grandmother and hair-salon owner, was unable to continue her chemotherapy for several months.

During the case, evidence emerged that Health Net had paid bonuses to employees to reward them based on the number of policyholders they had rescinded. The judge who awarded Bates the $9 million said in his decision: "It's difficult to imagine a policy more reprehensible than tying bonuses to encourage the rescission of health insurance that keeps the public well and alive."

The attorney who represented Bates, said in an interview Wednesday that he was not unhappy that there was a new verdict larger than the one he won for Bates. "I am glad to see that the courts in other parts of the country are coming down hard on this reprehensible practice of dumping sick patients," he said. "It has been a practice going on decades, is widespread, and ruins lives."

The attorney also said he currently said he has more than 100 pending cases against California insurance companies on behalf of patients he alleges were wrongly rescinded. He said he has already settled about 90 similar cases over the last three years.

President Obama cited other cases of rescission in his recent speech before a joint session of Congress as a major reason that health reform is necessary. Obama cited the case of a retired Texas nurse, Robin Beaton, who had her heath insurance canceled by her insurance company as she was about to undergo breast cancer surgery. As a result, Beaton had to delay her surgery for five months. In the interim, the size of the mass of her tumor had grown from 2 centimeters to 7 centimeters, greatly reducing her chances of survival.

A "woman from Texas was about to get a double mastectomy when her insurance company canceled her policy because she forgot to declare a case of acne," the President asserted in his speech, "By the time she had insurance reinstated, her breast cancer more then doubled in size. This is heart breaking. It is wrong. And no one should be treated that way in the United States of America."

Obama wasn't exactly correct in his telling of Beaton's ordeal. Beaton's insurance was canceled because a doctor wrote that she potentially had a precancerous lesion on her face. Further investigation showed that she instead had acne. But even after her physicians pointed out the error, her insurance remained rescinded. Only with the help of her congressman, was she able to pressure her insurance company to pay for her breast cancer surgery--five months later.

Managed Care!

September 14, 2009

A Hawaii federal trial court in recent rulings gave the go-ahead to a lawsuit filed by a group of physicians and patients seeking to reverse the state's transfer of Medicaid patients who are elderly, blind or disabled into a managed care plan -- a move doctors say has undermined access to care. Hawaii's Dept. of Human Services in February 2008 awarded three-year contracts worth $1.5 billion to subsidiaries of two of the nation's largest health plans, UnitedHealthcare and WellCare Health Plans. But the lawsuit contends that insurers in the Quest Expanded Access program do not have sufficient networks to guarantee uninterrupted access to care, as required by federal Medicaid laws.

"The program is totally flawed, and patients cannot find doctors," said pediatrician Arleen Jouxson-Meyers, MD, a plaintiff in the case. "When you go through the [network] lists, you find all these inaccuracies." For example, United's Evercare and WellCare's Ohana Health Plan continue to list doctors who have retired or opted out of the networks. Dr. Jouxson-Meyers, who chose not to participate in the new managed care program, said she has had difficulty finding participating physicians to whom she can refer her patients who are blind or disabled. Some of her patients are also plaintiffs in the case. Dr. Jouxson-Meyers added that the state has allowed Evercare and Ohana Health to underpay physicians. "Even if doctors agree to participate, if you get a slew of patients, it would put you out of business."

Before a state can mandate transfer into a Medicaid managed care program, federal law requires authorities to ensure that patients receive the same level of benefits as those not in managed care, said the plaintiffs' attorney. "We are in this fight to make sure if they take away the freedom of choice of provider, that what they put in its place is better."

The U.S. District Court for the District of Hawaii in a series of rulings in May and July ruled that the patient and physician plaintiffs have the right to sue, and it rejected the state's request to dismiss the case. A preliminary hearing is scheduled for Oct. 19, 2009.

Meanwhile, a panel of the 9th U.S. Circuit Court of Appeals went the other way in a separate case when it turned down a bid by a nonprofit health plan to overturn the Medicaid contracts. AlohaCare alleged that it was illegally shut out of the bidding process, and it also contended that Evercare and Ohana Health did not have adequate networks in place. But the 9th Circuit panel on July 14 ruled that AlohaCare did not have standing to sue. AlohaCare's attorney said the insurer does not have plans to appeal and will await the outcome of the physician-patient case.

The 9th Circuit also will decide a third, similar case brought last June by the Hawaii Coalition for Health, a physician-patient advocacy organization. A federal trial court in September 2008 found that the coalition's lawsuit was premature.

The Hawaii Medical Assn., while not involved in any of the lawsuits, has expressed some concerns to the state about the network shortages. "This just exacerbated existing problems of access, and the increasing administrative burdens, coupled with recent [Medicaid] rate reductions, is going to be a problem for physicians to take on new Medicaid patients," HMA spokesman April Troutman said.

The managed care program for the elderly, blind and disabled has experienced delays. The state pushed the original Nov. 1, 2008, launch date to Feb. 1, 2009, and extended the transition period through July 31, 2009. Patricia M. Bazin, Dept. of Human Services health care services branch administrator, said the state made the adjustments because the change was so comprehensive. She rejected any notion that the extensions were sparked by the litigation. Bazin said the insurer networks passed a rigorous evaluation during the bidding process. The state also put in place a number of safeguards to ensure continuity of care. For example, patients can keep their current doctor until they find one contracted in the new managed care program. Patients with a limited choice in certain areas may go out of network. A Washington, D.C., attorney, who represents the state, pointed to an Aug. 20, 2009 district court ruling denying the plaintiffs' request for an emergency order to halt the program. The court found no immediate threat to patients' access to care.

Oakland, California Lawsuits

2009-08-04T21:00:00.000-07:00

«• August 5, 2009 - Pending Lawsuit: A San Francisco police officer, Jeffrey John Sung, 32, has been charged in San Mateo County Superior Court with misdemeanor sexual assault for allegedly groping a woman while wearing his police uniform, a deputy district attorney said on August 4, 2009. A lawsuit is sure to follow! • Brought to you by Williby's Lawsuits Blogspot! •» «• Bookmark Us & Tell A Friend! •»

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Oakland Sued

$200,000 in Damages

August 4, 2009

OAKLAND — The city of Oakland and three police officers have been ordered to pay almost $200,000 in damages to a former board and care home worker by a federal magistrate who ruled the worker was the victim of excessive force and malicious prosecution in a 2004 incident.

U.S. Magistrate Maria-Elena James, in releasing her ruling Monday in favor of Uganda Knapps, said that based on testimony, a carotid or "choke" hold and "bent wrist lock" used by Officer Michael Cardoza to detain Knapps was "excessive and unnecessary." James also concluded that Cardoza and Officer Francisco Rojas "fabricated their accounts" of what happened, which led to Knapps being criminally charged and later dismissed from his job.

James, who heard testimony in October 2007 without a jury, also ruled that Rojas and Sgt. Jim Kelly did nothing to stop the excessive force and that Kelly knowingly approved the fabricated reports.

The magistrate ruled that Knapps, who initially sought more than $260,000 in damages, be paid $125,155.20 in compensatory damages, including medical expenses, lost wages, bail expenses, and general damages for mental anguish and humiliation. She ordered Cardoza to pay $30,000 in punitive damages, Rojas $20,000 and Kelly $5,000.

The city attorney's office "will analyze the decision and discuss our options with the City Council when they reconvene in September," Alex Katz, a spokesman for City Attorney John Russo, said Tuesday.

The federal suit stemmed from an Aug. 10, 2004, incident near 38th Avenue and Suter Street. Knapps was working at a residential facility for mentally disabled adults and was trying to bring back a resident who had walked away without permission and was running into traffic. He had called 911 for police help.

Cardoza and Rojas, who were not aware of the 911 call until later, said they saw Knapps physically strike the resident and throw him into a garage door. It was that suspected violence and Knapps' resistance to being detained that caused Cardoza to use force.

Knapps testified he only grabbed and pushed the resident out of the street and denied hitting him. Other witnesses in the trial testified they saw no apparent injuries to the resident, who died before the trial from an unrelated cause.

The officers also gave the same testimony in a May 2005 hearing before a state licensing board. Knapps did not get his job back, but he was not excluded from working at a similar state-licensed facility. A battery charge filed against him later was dismissed.

Knapps filed an internal affairs complaint against the three officers, but according to the federal court documents they were exonerated.

One of the Attorneys who represented Knapps, said Tuesday he was "very grateful Mr. Knapps was exonerated and vindicated." He said Knapps was trying to prevent a suicide, and it turned into a "nightmare."

$650,000 Settlement

July 7, 2009

The Oakland City Council is expected voted to approve paying $650,000 to settle a lawsuit filed by the family of an unarmed drunken-driving suspect who was shot to death by a police officer. The family's attorney, who represents the family of 27-year-old Mack "Jody" Woodfox III, said the settlement will be split by Woodfox's mother, Janice Collins, and his three sons, ages 12, 10 and 4. The $650,000 is only 6.5 percent of the $10 million originally sought by Woodfox's family members when they filed their suit in U.S. District Court last Sept. 2, 2008. The city of Oakland isn't admitting any wrongdoing in the proposed settlement. Officer Hector Jimenez, who also shot and killed another suspect in 2007, was fired last month for allegedly violating the Oakland Police Department's use-of-force policies.

Jimenez shot and killed Woodfox when he attempted to flee on foot after leading police on a high-speed car chase, at Fruitvale Avenue and East 17th Street about 3:50 a.m. on July 25, 2008. Investigating Oakland police Lt. Ersie Joyner said the incident began when Jimenez and another officer were patrolling the Fruitvale Avenue area and observed that Woodfox appeared to be "a dangerous driving under the influence of alcohol driver."

Jimenez's lawyer said after the officer was fired that Jimenez fired at Woodfox because Woodfox reached in his waistband, an area where suspects are known to carry guns. He said another reason for the shooting was Jiminez, who graduated from the Oakland Police Academy in February 2007, thought the situation was dangerous was that Woodfox actually ran toward police officers, not away from them, even though there were several possible escape routes. Woodfox had a lengthy criminal record but Jiminez wasn't aware of it at the time of the shooting.

On Dec. 31, 2007, Jimenez and another officer shot and killed 20-year-old Andrew Moppin, telling investigators Moppin had made a quick move toward his waistband and they thought he was reaching for a gun. However, Moppin was found to be unarmed. Jimenez's lawyer said the Oakland Police Department and the Alameda County District Attorney's Office cleared Jimenez of any potential wrongdoing in Moppin's death and didn't require him to undergo any further training. He said he believes that was an indication that police officials thought Jimenez had acted appropriately in responding to what he perceived as a potential use of deadly force. Jimenez's lawyer also said Woodfox acted "in an even more aggressive manner" than Moppin did, so he believes it was "completely incongruent" for police officials to fire Jiminez for the Woodfox incident. He said he will file a grievance with Oakland officials to try to help Jimenez get his job back.

The lawyer for Woodfox said a lawsuit he filed against the Police Department and Jimenez and the other officer in connection with Moppin's death is still pending in federal court. He said he thinks that Jiminez should be criminally prosecuted for killing Woodfox and has asked the U.S. Attorney's Office to do so. He said he also asked Alameda County District Attorney Tom Orloff to prosecute Woodfox but Orloff hasn't taken any action so far. Burris said he thinks Woodfox's death was "outrageous" because Woodfox "was not a threat and shouldn't have been shot."

Law Notes

Excessive Force

These types of lawsuits generally allege a variety of claims: including state tort claims; claims based on the California constitution; and federal 42 U.S.C. § 1983 claims based on violations of Fourth Amendment rights in the use of excessive force to affect an arrest. The question presented in an excessive force claim is different from the question presented in a state tort claim.

Two related statutory provisions are generally relevant in these types of suits. They are Immunity from suit under Cal. Gov’t Code § 820.2; and Immunity under Cal. Gov’t Code § 845.8. Cal. Gov’t Code § 845.8 is a “specific application” of § 820.2. Due to the fact California courts have not granted police officers immunity from excessive force claims, federal courts usually reject the officers’ argument that they are immune from suit under § 845.8.

California courts have never granted officers immunity from suit where a suspect’s injuries are caused by officers’ use of excessive force, see Larson v. City of Oakland, 17 Cal. App. 3d 91, 95-98 (1971); Scruggs v. Haynes, 252 Cal. App. 2d 256, 262-68 (1967); Ne Casek v. City of Los Angeles, 233 Cal. App. 2d 131, 136-38 (1965); See also Mary M. v. City of Los Angeles, 814 P.2d 1341, 1347-50 (Cal. 1991) (discussing generally immunity for police officers).It is well-established that § 820.2 does not provide immunity from excessive force claims. See Robinson v. Solano County, 278 F.3d 1007, 1016 (9th Cir. 2002) (en banc).

Malicious Prosecution

Under California law, to establish a cause of action for malicious prosecution, a plaintiff must plead and prove that a prior claim was: "(1) pursued to a legal termination favorable to the plaintiff; (2) brought without probable cause; and (3) initiated with malice. [Citations.]" (Villa v. Cole (1992) 4 Cal.App.4th 1327, 1335.) The courts disfavor the malicious prosecution tort, under the view that such claims are too frequently used as a dilatory and harassing device, and that the remedy for frivolous "litigation does not lie in an expansion of malicious prosecution liability." (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 873; see also Crowley v. Katleman (1994) 8 Cal.4th 666, 680.)

First, with respect to the favorable termination requirement, the Plaintiff must established he/she obtained a final judgment in their favor on each of Defendant's claims. The fact that the Defendant prevailed on one (of several) claim(s) does not defeat this favorable termination element if the claims were severable. (See Sierra Club Foundation v. Graham (1999) 72 Cal.App.4th 1135, 1153; Paramount General Hospital Co. v. Jay (1989) 213 Cal.App.3d 360, 363.)

Second, with respect to the probable cause element, the Plaintiff is required to produce facts showing at least one of the claims asserted against him/her (by the Defendant) was not "legally tenable," viewed in an objective manner. (Sierra Club Foundation v. Graham, supra, 72 Cal.App.4th at p. 1153.)

With respect to the malice element, the Plaintiff is required to show the Defendant had an improper motive in bringing the prior action. (Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 494-499.) Malice is usually proved by circumstantial evidence. (See Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3d at p. 875.)

Oakland, California Police Department

• Officer Pat Gonzales: Racist, Murderous Oakland Police Officer - 3 Killings
• Officer Hector Jimenez: Racist, Murderous Oakland Police Officer - 2 Killings
• Captain Edward Poulson, OPD^{(Beating Death of Suspect (2000) Promoted in 2008)}
• Investigator interfered in police probes of former bakery CEO
• Oakland Police Department, Corrupt, I
• Oakland, California Police Department, Corruption, II
• Oakland Police Department, III
• Oakland Police Department, IV
• Oakland Police Department, V - Major Corruption

• Jeff Loman, Deputy Chief, OPD^{(Updated: Re-instated as a (demoted) Lieutenant)}
• Deborah Edgerly, Corrupt former Oakland City Administrator

Connecticut Law On Defaults & Default Judgments

2009-02-27T15:04:00.000-08:00

«• Connecticut Law About Defaults and Default Judgments • Brought to you by Williby Blogs! •» Note: "This information & links connect to resources available and are provided with the understanding that they represent only a starting point for research."

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Connecticut Laws

on Defaults

• Motion for Default for Failure to Appear and Judgment. A motion for default and judgment, affidavit of debt, military affidavit, and bill of costs may be filed in any civil action that is based upon an express or implied promise to pay a definite sum and claiming only liquidated damages. (P.B. Sec. 17-23 et seq.). If you have already filed and obtained a default for failure to appear in an action, this procedure is no longer an option. [Click Here]

Documents to be filed with the court (P.B. Sec. 17-25):

Note: You must use the forms prescribed by the office of the chief court administrator. (P.B. Sec. 17-24 (b)) File only the originals of the JD-CV-49 and the (JD-CV-52) with the court.

1. A Motion for Default for Failure to Appear, Judgment, and, if applicable, Order for Weekly Payments (JD-CV-49)

2. A Military Affidavit (JD-CV-49)

Note: The military affidavit should be executed within thirty days of the entry of judgment to avoid a judge’s finding it insufficient.

3.A Bill of Costs (JD-CV-49)

4.An Affidavit of Debt (JD-CV-52)

Note: With respect to the affidavit of debt:

• A copy of the negotiable instrument that provides the basis for the claim of liability and/or a copy of the contract that provides the basis for attorneys’ fees and/or interest beyond the statutory rate must be attached to the affidavit of debt.

• The affidavit itself must also reference the applicable terms of the contract and provide the reasons for the specific amount of attorneys’ fees requested. (P.B. Sec. 17-25 (c))

• If the interest of the original obligee in the underlying negotiable instrument has been assigned to the plaintiff, the instrument making such assignment must also be attached to and the plaintiff’s ownership interest referenced in the affidavit.

• The amount of interest must be separately stated and must specify the date to which the interest is computed. That date may not be later than the date of the entry of judgment (P.B. Sec. 17-25 (b)).

• It is helpful to include the rate of interest, the dates of accrual, and the per diem in the affidavit of debt.

5. Notice of Judgment and Order for Weekly Payments (JD-CV-50)

Note: The JD-CV-50 must be filed in duplicate (original plus one copy).

Completion of the process (P.B. Sec. 17-28):

Once the judgment has been entered, the court will send the notice and judgment to the plaintiff who must serve a copy of the Judgment and Notice (JD-CV-50) upon each judgment debtor.

The completed certification of service of notice and judgment to all parties must be returned to the court.

Note: No execution on the judgment may be obtained until twenty days after the clerk receives one copy of the Judgment and Notice with a certification that a copy has been served upon each judgment debtor in accordance with P.B. Sec. 10-12 – 10-14. (P.B. Sec. 17-28).

• Default: If a party fails to comply with an order of a judicial authority or a citation to appear or fails without proper excuse to appear in person or by counsel for trial, the party may be . . . defaulted by the judicial authority. CONN. PRACTICE BOOK § 17-19 (2004 ed.).

• Default vs. judgment upon default: A default is not a judgment. It is an interlocutory order of the court, the effect of which is to preclude the defendant from making any further defense in the case so far as liability is concerned. A judgment upon default, on the other hand, is the final judgment in the case which is entered after the default and after a hearing in damages. Esposito v. Pinecrest Country Club, Inc., 24 Conn. Sup. 81, 82, 186 A.2d 822 (1962). [Click Here]

• Effect of default: A default admits the material facts that constitute a cause of action. See Travelers Indemnity Co. v. Rubin, 209 Conn. 437, 445, 551 A.2d 1220 (1988); and entry of default, when appropriately made, conclusively determines the liability of a defendant. Ratner v. Willametz, 9 Conn. App. 565, 579, 520 A.2d 621 (1987). Despite the entries of default, had the defendants sought to challenge the right of the plaintiffs to maintain their action, or had they intended to prove any matter of defense, they would have been permitted to do so at the hearing in damages upon written notice to the plaintiffs. See Practice Book § 367 [now 17-34]. Moreover, pursuant to Practice Book § 374 [now 17-40], the defendants would have been permitted to appear and offer evidence to reduce the amount of damages claimed without giving any notice. LaRosa v. Kline, 36 Conn. App. 501, 503-504, 651 A.2d 1324(1995). [Click Here]

Failure to Appear

• "If a party fails to comply with an order of a judicial authority or a citation to appear . . . the party may be . . . defaulted by the judicial authority." CONN. PRACTICE BOOK § 17-19 (2004 ed.). [Click Here]

• If no appearance has been entered for any party to any action on or before the second day following the return day, any other party to the
action may make a motion that a . . . default be entered for failure to appear. CONN. PRACTICE BOOK § 17-20(a) (2004 ed.). [Click Here]

• . . . motions for default for failure to appear shall be acted on by the clerk upon filing and shall not be printed on the short calendar. The motion shall be granted by the clerk if the party who is the subject of the motion has not filed an appearance. CONN. PRACTICE BOOK § 17-20(c)(2004 ed.). [Click Here]

• Soldiers and Sailors Relief Act: The provisions of Section 17-
21 [Defaults under Soldiers and Sailors Relief Act] shall not apply to such motions, but such provisions shall be complied with before a judgment may be entered after default. CONN. PRACTICE BOOK § 17-20(c)(2004 ed.). [Click Here]

• Notice: "It shall be the responsibility of counsel filing a motion for default for failure to appear to serve the defaulting party with a copy of the motion. Service and proof thereof may be made in accordance with Sections 10-12, 10-13 and 10-14. Upon good cause shown, the judicial authority may dispense with this requirement when judgment is rendered.." CONN. PRACTICE BOOK § 17-20(b) [Click Here]

• Automatic set aside: If the defaulted party files an appearance in the action prior to the entry of judgment after default, the default shall automatically be set aside by the clerk. CONN. PRACTICE BOOK § 17-20(c)(2004 ed.). [Click Here]

Motion for Default

for Failure to Appear

and Judgment

• The motion for Default for Failure to Appear and Judgment is a procedure which allows the plaintiff to file a Motion for Default for Failure to Appear simultaneously with a Motion for Judgment and an order requesting weekly payments. The motion is reviewed by the civil clerk's office and is forwarded to a judge for approval and for signature. HARTFORD SUPERIOR COURT CIVIL CLERK'S OFFICE, PRACTICE BOOK SECTION 17-25 MANUAL. Reprinted in 2 RALPH P. DUPONT, DUPONT ON CONNECTICUT CIVIL PRACTICE (2003 ed.), Appendix 1, p. 171. [Click Here]

• CONN. GEN. STAT. (2003).
§ 52-84. When judgment by default may be rendered. When any process has been served on any defendant and returned to court, if he does not appear on or before the second day after the return day, judgment by default may be rendered against him. [Click Here]

Selected Statutes:

• CHAPTER 832 - SUMMARY PROCESS

• Sec. 47a-26a. Failure to plead. Judgment. (housing - eviction cases)

• Sec. 47a-26c. Advancement of pleadings. Failure to plead. (housing - eviction cases)

• TITLE 52 - CIVIL ACTIONS

• Sec. 52-84. When judgment by default may be rendered. (failure to appear)

• Sec. 52-87. Continuance on account of absent or nonresident defendant. Exceptions.

• Sec. 52-119. Pleading to be according to rules and orders of court.

• Sec. 52-120. Pleading filed by consent after expiration of time.

• Sec. 52-121. Pleading may be filed after expiration of time fixed, but prior to hearing on motion for default judgment or nonsuit. Judgment or penalty for failure to plead.

• Sec. 52-135. Amendment of pleadings after default or demurrer overruled; costs.

• Sec. 52-212. Opening judgment upon default or nonsuit.

• Sec. 52-220. Hearing in damages; when to jury.

• Sec. 52-221. Hearing in damages. Evidence. Notice.

• Sec. 52-259c. Fee to open, set aside, modify, extend or reargue judgment.

Click on the link below to search the full-text of the statutes

See Some of our other Blogs:
^{Corrupt Justice Top News Stories!}
• Cops that Sexually Offend! (Part I)
• Cops that Sexually Offend! (Part II)
• Sexually Offensive Cops! Part III
• Corrupt Judges, Frame-Ups & Graft

• Mehserle Makes Bail!!!^{(January 1, 2009 Murder of Unarmed Black Man, shot once (1) in the back!!)}

• Deborah Edgerly, Corrupt former Oakland City Administrator^{(Tipping off the Oakland Street gangs to Police Raids, while in office. Now suing City!)}
• Captain Edward Poulson, OPD^{(Beating Death of Suspect (2000) Promoted in 2008)}
• Jeff Loman, Deputy Chief, OPD^{(Placed on Leave Feb. 4, 2009)}

• Tony Pirone, B.F.D.^{(Mehserle Accomplice - Jan. 1, 2009 Homicide)}
• Johannes Mehserle, Killer Cop^{(Oakland's New Year's (2009) Transit Killer Cop)}
• The B.A.R.T. Shooting Investigation^{(The Investigation of Oakland's New Year's (2009) Transit Killer Cop)}
• The B.A.R.T. Aftermath ^{(The Oakland Riots New (2009))}

• B.A.R.T. Police, Racism, Homicide^{(Video of The Oakland New Year's Day (2009) Transit Shooting )}

Personal Injury Law: The Basics.

2008-12-06T08:29:00.000-08:00

At any moment in America, millions of people are driving, walking, shopping, traveling, and working, so it is no wonder that accidents and injuries have become an inevitable part of life. But the fact that mishaps are fairly commonplace does not detract from the pain and confusion that can result when an accident or injury happens to you or a loved one. This is especially true when any harm could have been avoided if others had not acted carelessly. If you decide to take steps toward protecting your legal rights after an accident or injury, you may have a number of general questions about "personal injury" cases.

What is a "Personal Injury" Case?

"Personal injury" cases are legal disputes that arise when one person suffers harm from an accident or injury, and someone else might be legally responsible for that harm. A personal injury case can become formalized through civil court proceedings that seek to find others legally at fault through a court judgment or, as is much more common, such disputes may be resolved through informal settlement before any lawsuit is filed:

•Formal "Lawsuit" - Unlike criminal cases, which are initiated by the government, a formal personal injury case typically starts when a private individual (the "plaintiff") files a civil "complaint" against another person, business, corporation, or government agency (the "defendant"), alleging that they acted carelessly or irresponsibly in connection with an accident or injury that caused harm. This action is known as "filing a lawsuit". Go here for more information on what a person filing a lawsuit usually must prove.

•Informal Settlement - In reality, most disputes over fault for an accident or injury are resolved through informal early settlement, usually among those personally involved in the dispute, their insurers, and attorneys representing both sides. A settlement commonly takes the form of negotiation, followed by a written agreement in which both sides forgo any further action (such as a lawsuit), choosing instead to resolve the matter through payment of an agreeable amount of money. (More about settlements later).

(Note: the "middle ground" between a lawsuit and an informal settlement is alternative dispute resolution procedures like mediation and arbitration. [Learn more later].)

Where Are Personal Injury Lawsuits Filed?

Personal injury lawsuits usually fall under the authority (or "jurisdiction") of state courts in the county where the injury occurred, or where those involved (the "parties") in the incident are located. So, if a resident of Los Angeles County is involved in a car accident in Los Angeles, he or she will ordinarily file a personal injury lawsuit in the Superior Court of California, County of Los Angeles. Injury cases in which a relatively low amount of damages is sought (typically a maximum of $2000 to $5000) usually must be filed in a court's "small claims" division.

An exception to the rule of state court jurisdiction arises when parties in a personal injury case live in different states, and the case involves an amount "in controversy" over $75,000. Such a personal injury case may be filed under federal jurisdiction in the federal trial courts (called U.S. District Courts), or the case may be moved there if it was originally filed in a state court. Issues of jurisdiction can be tricky for those unfamiliar with the legal process, but an experienced attorney can sort through any problems that may arise in deciding where to file a lawsuit.

Where Are the Laws that Govern Personal Injury Cases?

Unlike other areas of the law that find their rules in statutes (such as penal codes in criminal cases), the development of personal injury law has taken place mostly through court decisions, and in treatises written by legal scholars. Many states have taken steps to summarize the development of personal injury law in written statutes, but for practical purposes court decisions remain the main source of the law in any legal case arising from an accident or injury. (Note: in some types of injury cases, most notably those arising from car accidents in which a state vehicle code section was violated, statutes can be used to help establish fault for an accident or injury.)

To understand how pre-existing case law (or "legal precedent") might be used to strengthen an injury case, suppose that you are involved in an accident or are injured, and decide to hire an attorney to protect your legal rights. During settlement negotiations with insurers or opposing counsel, and especially in any legal filings with the court, your attorney will make reference to (or "cite") prior cases in which the courts in your state decided on issues like fault or damages, in ways that are favorable to your position. For example, suppose you have been injured in a "slip and fall" on an uneven sidewalk outside your apartment building. In seeking to prove that the owner of your building is at fault, your attorney might cite a case in which your state's supreme court held that owners of residential buildings have a legal duty to ensure that the premises surrounding the building are properly maintained.

How to Deal With Legal Matters on a Budget

2008-10-21T09:51:00.000-07:00

The good lawyer is not the man who has an eye to every side and angle of contingency, and qualifies all his qualifications, but who throws himself on your part so heartily, that he can get you out of a scrape.
- Ralph Waldo Emerson

When it comes to trying to deal with legal matters while living on a budget, it can be both daunting and very worrying. This article contains helpful information from lawyer Andrew Flusche, on how you can deal with legal matters effectively whilst keeping an eye on the budget. Note that this article was written principally with US citizens in mind but much of this is still excellent advice applicable generally wherever you live.

Steps

Ask yourself this very important question before you do anything: Do you need a lawyer? The best way to save money on legal expenses might be to keep lawyers out of the equation. This definitely isn’t right for every legal matter, but it could be right for yours. Consider:
- If there is very little money at stake, hiring a lawyer may not be cost effective. You may be able to identify a paralegal or consultant with the needed expertise. Or you might be better off trying to resolve the matter yourself. Sometimes a polite phone call or letter can go a long way.
- Even if the issue is significant, helping yourself might be an option. A variety of good do-it-yourself legal handbooks exist, such as those by Nolo Press. Your local library will probably have similar books ready to check out.
Go to small claims court. Small claims court exists for a reason. It helps people have their day in court to resolve small disputes. The precise rules and requirements vary by jurisdiction, but it can be a cheap option to litigate a monetary claim. You can generally pursue amounts up to a few thousand dollars in small claims court. The filing fees are usually a small amount. You typically do not hire a lawyer in these cases; you pursue the case on your own.
Buy unbundled services. Perhaps you need a lawyer for part of a matter, but you can handle some things on your own. Unbundled legal services could be the frugal solution. This innovation breaks down legal services into discrete parts, letting clients purchase only what they need. Under this model, you could hire an attorney to just give advice on a certain situation. Or you could hire someone to review contracts for you. Unbundled services can be a win-win deal for clients and lawyers. The client gets exactly the needed services and only has to pay a minimum amount. And the lawyer can work on discrete matters for a variety of interesting clients.
Educate yourself. Regardless of the legal option you choose, you need to educate yourself. Even if you hire an attorney for all your legal needs, you should make sure you understand what’s going on. One simple thing you can learn is legal terminology. Your attorney should be able to speak to you in plain English, but there are still legal terms involved. If you take the time to find definitions for things, you save your attorney’s time in explaining them to you. In most arrangements, saving time for your attorney saves you money.
Provide all the details. After you have decided to hire a lawyer, you have to communicate with him. To help your lawyer work as efficiently (and cheaply) as possibly, get all your details together. If you’re prepared to answer the lawyer’s questions, you can make the most of any meetings you have. In today’s computer age, it’s easy to keep records and documents handy. You could just create a Google Doc of information about your case. When something happens, or a memory resurfaces, make a note of it. You could share this Doc with your attorney through Google or just email it to him.
Group your questions. If your attorney is billing by the hour, you want to minimize the time he has to spend on your matter. Most attorneys bill in six-minute increments, so even a quick phone call to your attorney will cost 1/10th of an hour (possibly $25). This doesn’t mean you shouldn’t contact your attorney. But you should be efficient in that contact. Don’t call your attorney five times during the day. Make a list of things you’d like to talk about and call once. The same applies to email.
Ask for alternative billing. Lawyers don’t have to bill by the hour all the time. In fact, many lawyers are using different billing methods precisely to lower the cost of legal services. If you want to lower your attorney’s fees, ask about alternate billing arrangements:
- Contingency fees are a popular method of billing in cases like personal injuries. You pay your attorney a percentage of the amount you recover.
- Attorneys use flat rate billing when the amount and nature of work is predictable. If you have a routine traffic court matter, a flat rate might make your cost easy to foresee. Flat rates can also help you get a simple will drafted and signed.
Stay focused on the goal. A wise business attorney once said that the client is truly in trouble when they’re fighting “for the principle of the matter.” If you’re fighting for principles, your costs will likely skyrocket. That doesn’t mean you shouldn’t stand up for your beliefs, but sometimes fighting in the legal arena can be a bad business decision. The same rationale applies to people who want to harass people through the courts. An unscrupulous attorney might help you, but it will likely be expensive. Do you think an attorney who will simply harass your adversary will turn around and bill you fairly? Always keep your focus on the end goal, and make sure your attorney knows that goal as well. Ask yourself how certain decisions might affect reaching that goal. If you get off course, talk it over with your attorney and get back on track. You’ll save money in the end.

Things You'll Need

Law library
Documentation system
Organized approach

Related wikiHows

Sources and Citations

Original source of article from the very generous Zen Habits. Please feel free to visit and support copyright free information providers. Information in this article was provided by Andrew Flusche, a lawyer who runs his own private law practice in Fredericksburg, Virginia. He helps with Virginia legal matters, including trademarks, copyrights, litigation, and probate.

Article provided by wikiHow, a collaborative writing project to build the world's largest, highest quality how-to manual. Please edit this article and find author credits at the original wikiHow article on How to Deal With Legal Matters on a Budget. All content on wikiHow can be shared under a Creative Commons license.

Representing Yourself in Court - In Pro Se

2008-10-18T14:31:00.000-07:00

The term "Pro Se" is Latin meaning "for himself; in his own behalf; in person" or as in appearing for oneself. To act as one's own attorney in a civil or criminal matter.

It is the common experience of most court systems in the United States that there has been a rising tide of pro se litigants flooding a justice system designed, in large part, for the traditional full representation model. Virtually all aspects of the system, from the rules to the training of judges and court staff to the physical layout of the courthouses themselves, have been oriented to cases in which knowledgeable attorneys represent the parties. The Conference of State Court Administrators recently characterized this trend as “ unprecedented and showing no signs of abating.”

The tools are not considered a substitute for attorney representation but rather a triage tool to help those who are considering going pro se. The tools are designed to help the person to realistically assess their case and to find the help that they need. Ideally, the goal is to offer the type of general information and assessment that an attorney might give a client at the first interview to help the person to understand the process, types of relief and a general but realistic assessment of the available options.

"In his recent annual State of the Ohio judiciary address before the Ohio Judicial Conference, Chief Justice Thomas Moyer of the Ohio Supreme Court expressed his displeasure with the increasing number of people who choose to appear pro se, or representing one's self, in court."

Representing Yourself in Federal Court

If you wish to start a civil action in federal court, but do not have an attorney to represent you, you may bring your case on your own.

This is called "proceeding pro se" which means that you are representing yourself in the Court, and you are called a "pro se litigant."

A civil case, which is the only type of case you can start in federal court, is different from a criminal case, which can only be started by government officials. In a civil case, you do not have a constitutional right to appointed counsel. Therefore, if you start a civil case pro se, you should be prepared to pursue it to completion on your own because the Court appoints counsel only under certain circumstances that may not be met by your case.

The Court can provide you with certain types of assistance to make it a little easier to bring your case pro se in federal court. Read the Pro Se Handbook (<<--New York - Federal Court) before you start your case, so that you understand the help the Court can provide and so that you become familiar with the forms the Court can make available to you and the Rules you must follow in the Court.

New York
• Pro Se Handbook - United States District Court for the No. Dist. of New York
• Local Court Rules of Practice - Federal - Northern Dist. N.Y.

Illinois
• Information for Pro Se Litigants - Lake County
• Informacón Para Litigantes Pro Se - Lake County
• Small Claims Court

Related Links

• Maryland's Peoples Law Library
• Helping Pro Se Litigants to Help Themselves
• The Delaware Municipal Pro Se Information Sheet
• Vermont Pro Se Litigant Information: Divorce
• Benton County, Washington - Civil Litigant Information
• The Anti-Government Movement Handbook
• Massachusetts Law about self-represented Litigants

Other Law related Blogs:

1. Landlord-Tenant Law
2. Corrupt Justice Officials
3. Lawsuits
4. Real Estate Law
5. Police Brutality
6. Bankruptcy Law
7. Re-Zoo-May (Resume/Employment)
8. familylaw

Continually updated

California Small Claims Court - The Basics

2008-10-03T15:22:00.000-07:00

What is small claims court?

Small claims court is a special court where disputes are resolved quickly and inexpensively. The rules are simple and informal. The person who sues is called the plaintiff. The person who is sued is called the defendant.

Who can sue in small claims court?

Any mentally competent person who is:

1. 18 year old or older, OR
2. an emancipated (opens in new window) child.

If you are:

1. not mentally competent, OR
2. under 18 years old (and not emancipated), a judge must appoint an adult called a guardian ad litem to represent you in small claims court.

When is it too late to file a claim?

It's not easy to figure out if it's too late to file. If you're not sure, file your case and let the judge decide.

Here are some tips:

If you are suing because you got hurt, you can file a claim for up to two years after you were hurt.

If you are suing because a spoken agreement was broken, you have 2 years to file after the agreement was broken.

If you are suing because a written agreement was broken, you have 4 years to file after the agreement was broken.

If you are suing because your property was damaged, you have 3 years to file after your property was damaged.

If you are suing because of fraud, you have 3 years to file after you find out about the fraud. Fraud is when you lose money because someone lied to you or tricked you on purpose.

If you are suing a government or public agency, you have 6 months to file a claim with that agency. They have 45 days in which to make a decision. If no decision is made with 45 days then it is deemed denied. If they reject your claim, you have 6 months to file a claim with a small claims court.

How much money can I ask for?

An individual cannot ask for more than $7,500 in a claim. Corporations and other entities (like, government entities) cannot ask for more than $5,000. You can file as many claims as you want for up to $2,500 each. But you can only file 2 claims in a calendar year that ask for more than $2,500.

You can only sue a guarantor for up to $4,000 ($2,500 if they don't charge for the guarantee). But, if you are a natural person filing against the Registrar of the Contractors' State License Board you can sue a guarantor for up to $7500. A "guarantor" is a person who promises to be responsible for what another person owes.

Do I have to pay to file?

Yes. The fee is based on the amount of your claim and the number of claims you have filed in the past 12 months:

If you have filed 12 or fewer claims in the past 12 months:

Amount of your claim: $0 to $1500 - Filing Fee: $30.00

Amount of your claim: $1500.01 to $5,000 - Filing Fee: $50.00

Amount of your claim: $5000.01 to $7,500 - Filing Fee: $75.00

If you have filed more than 12 claims in the past 12 months, the filing fee is $100 (for any claim amount).

Can I bring a lawyer?

No. You will go to court between 20 and 70 days after you file your claim. A lawyer can't represent you in court. But you can talk to a lawyer before or after court.

What kinds of cases go to small claims court?

There are different kinds of cases. The most common are: car accidents, property damage, landlord/tenant rent deposit disputes, and collection of money owed.

What will happen at my hearing?

The judge will listen to both sides of the story. To help tell your side, bring evidence like:

Witnesses
Photos
Bills
Receipts
Contracts
Other relevant documents that support your side

The judge may make a decision at your hearing, or mail it to you later. Instead of a judge, you may have a commissioner or temporary judge at your hearing. They are both just like judges. A temporary judge (called a "judge pro tem" or "judge pro tempore") is a lawyer who hears and decides cases. If you don't want a temporary judge, you can ask the court to have a judge hear your case. You may have to come back another day.

Can I appeal the judge's decision?

You can't appeal if you were the one who filed the claim. If someone else files a claim against you and you lose, you can appeal.

How do I file an appeal?

If you were at the hearing, you must file a form called "Notice of Appeal." You have 30 days to do this after the date the clerk mails the Notice of Entry of Judgment. The current cost to file a Notice of Appeal is $75.

What happens if someone else appeals?

You'll have a new hearing. You'll have to bring your evidence and tell your side of the story again. This time, you can bring a lawyer to represent you.

Do I have to go to court?

If you're suing someone, you must go to court. You can't send anyone else (even a lawyer) to represent you in court.

But there are some exceptions. For example:

You may not have to go to court if: (1) you are serving on active duty in the armed forces, (2) you were assigned to your duty station after your claim arose, and (3) your assignment is for more than six months.

For more information about exceptions, read Civil Procedure Code section 116.540. Also, check out: Authorization to Appear (Small Claims) (form SC-109)

Superior Court of California, Alameda County

2008-09-26T03:14:00.001-07:00

«• July 19, 2011 •»

Snapshot of California court budget cuts

Total state court budget 2010-11: $3.5 billion
Total cuts 2011-12: $350 million
Trial courts: $3.1 billion
*Proposed cuts to trial courts: $319.3 million
State court bureaucracy: $116.5 million
Proposed cuts to bureaucracy: $13.4 million
State Supreme Court: $46.5 million
Proposed cuts to Supreme Court: $2.8 million
Appeals courts: $210.7 million
Proposed cuts to appeals courts: $12.4 million
*Includes one-time savings of $183.5 million from courthouse construction fund, tech project and other sources.
Source: State Administrative Office of the Courts

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California Superior Court

Budget Crisis

Posted: 07/17/2011 08:17:25 PM PDT
Updated: 07/18/2011 11:04:33 PM PDT

California's budget crisis has already jacked up college tuition costs, ransacked redevelopment agencies and hammered funding for social services across the state. Now, at courthouses around California, the fiscal crunch is about to produce longer waits to file that divorce case or resolve those legal feuds between Silicon Valley companies, delays in fixing a broken air conditioner in a sweltering courtroom and trouble paying lawyers appointed to represent the poor. And, on some days in some cash-strapped legal systems, there will be a "closed for business" sign hanging from courthouses from San Francisco to the Central Valley.

California's courts are about to suffer a record budget blow, preparing to absorb $350 million in cuts this fiscal year and an equally harsh reduction projected for next year. The state Judicial Council, the courts' policymaking arm, meets Friday to consider recommendations that have judges throughout California shuddering in their robes. "This is unprecedented," said Chief Justice Tani Cantil-Sakauye, who heads the council. "There is no other way to say it. It is an amount that is startling to us."

For the state's 58 trial courts, which conduct the bulk of judicial business, from criminal trials to child custody spats, the budget cuts will hit hardest. If the judicial council approves the approach endorsed last week in a closed-door meeting in San Francisco attended by judges and court officials, local courts will lose $135 million in the fiscal year that began July 1 and another $170 million next year from an overall budget of more than $3 billion.

In Santa Clara County, that translates into a loss of $6.8 million this year and perhaps more than double that amount next year. San Mateo County's courts will take at least a $2.7 million hit this year, while Alameda County's court system will be cut by more than $6.7 million. Contra Costa County's courts will absorb more than $3 million in cuts and will likewise be forced to cut even more from next year's budget.

Santa Clara County also must sweat out the prospect that plans to build a new family courthouse in downtown San Jose could be in jeopardy as a result of the latest round of state cuts. As part of the final budget deal, lawmakers ordered the courts to divert about $130 million from a courthouse construction fund to help pay for this year's shortfall -- and Santa Clara's courthouse is among the projects moving forward through that fund.

Richard Loftus, Santa Clara County's presiding judge, said he is "optimistic" the courthouse will not be impacted because it is relatively far along in the process. But the worry will be there until the state's judicial leaders determine which projects get put on hold in the coming year.

Meanwhile, the Judicial Council is leaving it up to local courts to decide if they want to save money by closing courthouses on occasion, unlike two years ago, when the council provoked an outcry by ordering such closures once a month for every court. Santa Clara County has no current plans to close the courts, but other counties, such as San Francisco and Merced, have already warned the cuts will prompt closures, reduced court hours or layoffs.

The budget strife has again sparked division within the California judiciary over the council's approach to dealing with the cuts. The Alliance of California Judges, a group formed in the aftermath of the court closures, is infuriated by the trial courts' share of the cuts, arguing the state's Administrative Office of the Courts, the court bureaucracy, should be "cut to the bone" to salvage more money.

In addition, the group insists a controversial multibillion-dollar, statewide technology upgrade, which would overhaul and unify all of the courts' computer systems, should be scrapped forever. As of now, the council is considering a plan to save close to $100 million by putting the project on hold for one year, according to reports from court officials. The AOC, under fire in recent years for its rapid growth in tight times, is losing about 12 percent of its $116 million budget this year.

Alliance judges insist the proposed cuts to those areas fall far short.

"The AOC is not as important as open courtrooms in the trial courts," said Sacramento Superior Court Judge Maryanne Gilliard, an alliance leader.

But the chief justice and other powerful groups, including the California Judges Association, defend the across-the-board cuts and say the bureaucracy and tech project are being unfairly targeted.

"It is an idea that doesn't have a lot of support along the broad base of the judiciary," said Keith Davis, president of the judges association. "We want to try and make cuts that are fair and appropriate."

Meanwhile, the cuts are already hitting home. In Santa Clara County's courts, the system has shed nearly 100 court workers in recent years, as the judges try to stave off layoffs and deal with tens of millions of dollars in cuts already in place. David Yamasaki, the court's chief executive, said it already takes days for court employees to answer phone calls from the public and weeks to finalize court judgments that once took a matter of days.

Once the next two years of cuts take hold, the public can expect worse, according to California's judicial leaders.

"I think they did this very thoughtfully," Loftus said of the proposed cuts. "But I think it's going to be painful in a lot of ways."

California Superior Court

County of Alameda

The Alameda County Superior Court is comprised of 68 Superior Court Judges, 16 Court Commissioners and 722 regular court employees, operating in 17 court facilities located in the cities of Alameda, Berkeley, Fremont, Hayward, Oakland, Pleasanton and San Leandro.

See:

An Informational Brochure Published by the Superior Court of California, County of Alameda.

A Guide to the Superior Court of California, County of Alameda

Websites

Superior Court of California, County of Alameda
California Courts
Court Weblinks

Trial Courts of Alameda County

Select a Trial Court:

Alameda
Berkeley
Fremont
Hayward
Oakland - WWM/AEB
Oakland - RCD/ADMIN/PO/PC
Pleasanton
San Leandro
John George Psychiatric

Click below for a map of the court locations:
Alameda County Court Locations

Commonly Requested Services

The following services are provided by the Alameda County Clerk-Recorder's Office, not the Courthouse:

Birth Certificates.
Death Certificates.
Fictitious Business Name.
Marriage Ceremonies.
Marriage Certificates.
Marriage Licenses.
Notary Bond and Oath.

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