May 25 2016

$1 Million Suffolk County False Arrest Settlement Could Set High Bar

Nancy Genovese, an East Quogue woman who complained that she was treated like a terrorist when she was jailed for four days for taking pictures of a helicopter at the Air National Guard base in Westhampton Beach, will get $1.055 million in a federal court settlement with Suffolk County.The settlement came to light Tuesday when the county legislature’s budget committee voted unanimously to authorize borrowing to pay her in her federal civil rights lawsuit. The trespassing charge was dropped several months after her arrest. Now as someone who has worked on wrongful conviction and false arrest cases for nearly all of my 30 years of practice, I am the first person to say that large sums of money should be awarded to folks whose civil rights were violated or who were wrongfully incarcerated. But this case raises some questions about the County’s decision.

Genovese, 60, a retiree with no prior record, was arrested for trespassing in 2009, strip-searched and jailed for four nights before she could raise $50,000 bail. Genovese had taken photos from outside the air base, which she said she intended to use for a website to support the troops. She was held outside the air base for six hours while police searched her car. The vehicle contained a shotgun, an assault rifle and several hundred rounds of ammunition. Genovese owned the weapons legally and had them at a shooting range earlier. She also had $6,000 in cash in her possession. But Ms. Genovese was not trespassing at all as she was taking her photos from a public highway and not from the air base itself, which is what arresting police officer Robert Carlock falsely reported. Carlock also participated in drafting a press release that said Ms. Genovese was a suspected terrorist which undoubtedly led to the high bail for this misdemeanor charge. After hiring high-profile lawyer Robert Gottlieb,the charges against her were dismissed in the interest of justice after about four months.

Nancy Genovese Photo courtesy Howard Schnapp - Newday

Nancy Genovese Photo courtesy Howard Schnapp – Newday

Four nights in jail,four months of prosecution and no trial or appeal. Also, when they came upon the guns in the trunk, the cash and that her last name is the same as the crime family that orchestrated the Lufthansa heist at JFK airport, that’s a lot more suspicious evidence than they have had in other wrongful conviction cases for sure. I’m not saying its enough -after all, the whole search was premised on a lie since she was on public property- I’m just saying. Federal Judge Joseph Bianco reduced a jury’s $1.1 Million verdict to $700,000 which Ms Genovese and her lawyer accepted. In reducing the award, the court did state that it recognized that this was a lot of money for the short length of time Genovese was held and prosecuted but said the large award was justified for her being labeled a “terrorist.” But folks wrongfully labeled as murderers or rapists routinely are awarded about $150-$200K for every year of incarceration. And that’s what Suffolk County’s Marty Tankleff got in a settlement after he was falsely labeled as the ruthless killer of his parents. Is that so much better than being labeled a terrorist?

So if the judge said the case was worth $700,000 why did cash-strapped Suffolk County pay over a million? According to Newsday, legislative officials said the county made the settlement as a way of avoiding another trial in which Genovese could seek punitive damages and recover legal costs. “With punitive damages, it could have been the sky is the limit,” said Legis. Louis D’Amaro (D-North Babylon), budget committee chairman. OK but just one thing – it is nearly impossible to get punitive damages against a municipality; the law only allows it for a repeated pattern of unconstitutional activity and that was not even part of Ms Genovese’s claim. Furthermore, the County could have filed an appeal arguing that Bianco was wrong to value the case at $700K especially since most of the cases he relied upon awarded far less for similar periods of time in jail. The appeal would have held off payment of the judgment for years (and no interest runs against the county while the appeal is pending). The whole thing makes me shake my head in wonder a little bit. I think because Ms. Genovese was an older white woman, everyone involved could empathize with her more and therefore understand the stigma, pain and stress one faces when false charges are being leveled against you. She was hit particularly hard – having to be placed on suicide watch while she waited to be bailed out.

On another note, perhaps this settlement will set the bar for others who have been wrongfully arrested and prosecuted in Suffolk County and other parts of the State. At the least, the case points to the need to see each case individually and not apply a cookie-cutter formula in trying to address these wrongs. Kudos to Ms. Genovese and her lawyer Frederick Brewington for pursuing this case and getting this result. Let’s hope it sends a strong message about the harm that false arrest and imprisonment cause.

May 24 2016

NY Judge Okays Firing Yoga Teacher For Being “Too Cute”

Dilek Edwards was a yoga instructor and massage therapist working for chiropractor Charles Nicolai’s Wall Street Chiropractic & Wellness Center. More than a year after Edwards started the job, Nicolai told Edwards his wife might be jealous because Edwards was “too cute.” Edwards’ wife, Stephanie Adams, is a co-owner of the practice and was therefore also Edwards’ boss.

Edwards claims that after she started giving Dr Nicolai yoga lessons, Adams texted her in October 2013 warning her “You are NOT welcome any longer at Wall Street Chiropractic, DO NOT ever step foot in there again, and stay the F–K away from my husband and family!!!!!!” shortly after her boss admitted that his wife “might become jealous” due to Edwards’ yoga lessons. The following day Edward received an email from Nicolai, which stated: “You are fired and no longer welcome in our office. If you call or try to come back, we will call the police”

She was fired shortly thereafter and filed a discrimination lawsuit against her employers. Her lawyers argued that Section 8-102(23) of the New York City’s Human Rights Law defines “gender” to include “a person’s gender identity, self-image, appearance, behavior or expression.” But Judge Shlomo Hagler of NY County Supreme Court disagreed saying that those terms were all meant to cover discrimination based on sexual identity to protect transgender employees. The court stated:

[T]his Court is constrained under the law to make a determination that defendants’ behavior, no matter how abhorrent, fails to constitute gender discrimination. Plaintiff has failed to plead in the Amended Complaint in sufficient detail what the term “too cute” is alleged to mean. The reference to the term “too cute” may not be a remark about physical appearance in the first place. In any event, plaintiff has also failed to allege that a reference to “too cute” is gender related, namely that the term was applied by plaintiff herein to men and women differently. . . . Here, the only allegation in the Amended Complaint is that plaintiff was terminated by Nicolai because of the jealousy of Adams, namely that she thought plaintiff was “too cute.” . . . The court is unable to find a case interpreting either the NY State Human Rights Law or the NY City Human Rights Law which holds that a termination motivated by spousal jealousy alone, constitutes gender or sex based discrimination

The City’s Human Rights Law is one of the most liberal and expansive statutes of its kind in the country. It specifically states in the statute’s language that the law is meant to provide broader protection than Federal or State laws. But to have allowed this claim to go forward would have changed the law’s purpose – it was clearly intended to protect folks from being discriminated against based on their gender identity and gender appearance. To say you can’t be fired because your boss’ wife or your boss is jealous of you and worried you might steal their spouse would have been to broad an expansion of the law’s protection.

The Judge did allow to go forward Edwards’ claim that she was defamed when Adams called police and falsely told them that she received threatening phone calls from Edwards and that Edwards ‘stated’ ‘I am going to come to the office’ in a threatening manner” also telling police that she had to change the locks at her home and office. So these three will be in court together for a little while longer.

Dilek Edwards (From FB)

Dilek Edwards (From FB)

Charles Nicolai (From his office's website)

Charles Nicolai (From his office’s website)

Stephanie Adams (From her Twitter page)

Stephanie Adams (From her Twitter page)

All of this happened as result of the defendants filing a motion to dismiss the case before they even answered, so the case still has to drag through the discovery process. That means, depositions, examination of texts; phone messages; and possibly social media posts, all of which will make the case go on for another few years. Which could make for some very dicey litigation as Ms. Adams has some interesting history and has done very well in life, business and the courtroom. Some salient facts: (1)She was a Playboy centerfold in November 1992. (2)At that time she was identified as the first openly lesbian centerfold. She obviously has since expanded her horizons. (3)She was injured in a scuffle with police in 2006 after an argument with a cabbie outside her apartment, according to the New York Daily News.The taxi-driver called the police claiming that she ‘flashed her vampire teeth’ and threatened to shoot him following an argument after he refused to carry her clothes up to her apartment. She claimed she was pushed to the ground when police officers arrived, an injury which left her with permanent neck and back injuries. Officers initially claimed that they performed a ‘controlled drop’ because they didn’t know if she was concealing a firearm. But they later admitted that her clothes were so tight-fitting that there would have been nowhere to conceal it. Adams was awarded $1.2 million – $385,000 more than her lawyers asked for; (4) In 2015, when the NYPD denied her a gun permit, she took them to court and won; (5) The permit denial was allegedly based on a number of domestic disputes with her husband and roommate some of which she was listed as the victim and others where she was listed as the perpetrator (6) She currently has more than a million Twitter followers and says she is now teaching yoga.

Edwards is likely to appeal so we’ll have to see how the appellate courts treat the case.

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May 09 2016

Court Holds YouTube Rap Video Titled “F+ck The Police” Constituted Terrorist Threat

BREAKING NEWS: If you are stupid enough to upload a video to YouTube in which you threaten to shoot specific police officers (whom you name and who are scheduled to testify in your upcoming criminal trial) you might be labeled a terrorist! At least that’s what an Appellate Court in Pennsylvania told Rashee Beasley last week. And while the decision seems to be the right one under Pennsylvania law based on the facts of this case, it may have far-reaching implications.

It seems Mr. Beasley, who was facing a number of drug, gun and related charges, decided to put his thoughts into words and uploaded a number of rap videos to YouTube with links to a Facebook page he managed under a pseudonym. The song in question “Fuck The Police” was written and performed with his co-defendant. Here’s the verse that the court focused on:

This first verse is for Officer Zeltner and all you FED
force bitches and Mr. Kosko can suck my dick for
knocking my riches.
Want beef, well cracker I’m wit it, that whole department
can get it.
All these soldiers in my committee gonna fuck over you
bitches, fuck the police bitch, I said it loud
The fuckin city can’t stop me
Ya’ll gonna need Jesus ta bring me down
And he ain’t fuckin wit you dirty devils,
We makin prank phone calls and as soon as you bitches
come we bustin heavy metal (sound of gunfire)
So now Kosko gonna chase me through these streets
and I’m a jam this rusty knife all in his guts and chop his
feet.

Officers Kosko and Zeltner were the arresting officers in Beasley’s pending cases. And it was naming them that apparently made this song cross the line from art to crime. After all, compare that verse to some of the lines from NWA’s hit “Fuck Tha Police”:

Ice Cube will swarm
On any motherfucker in a blue uniform
Just cause I’m from the CPT
Punk police are afraid of me, huh
A young nigga on the warpath
And when I’m finished, it’s gonna be a bloodbath
Of cops, dying in L.A
Yo Dre, I got something to say
Fuck Tha Police

[On a side note, yes that’s the same Ice Cube who’s now in all those family-friendly comedies and the Dre is Dr. Dre multimillinoaire owner of Beats headphones]

The direct naming of the officers in Beasley’s song is really the only difference between the two. Both songs go on to describe specific scenarios in which the rappers will use guns to kill police officers. But the court in Beasley’s case correctly focused on the intent of the “artist” as being the main cause why this was a terrorist threat against the named officers.

In 2015, the Supreme Court of the United States addressed the subject of Facebook posts as terroristic threats in Elonis v. United States. In that case, the defendant posted threatening comments on Facebook in response to people having viewed his posts. The jury convicted the defendant of terrorist threats after the trial court instructed that the Government needed to prove that a reasonable person would regard the defendant’s communications as threats. The Supreme Court found this jury instruction was error because it failed to consider the defendant’s mental state. The Court held that “[t]he mental state requirement must therefore apply to the fact that the communication contains a threat.” The Court sent it back to the trial court to determine whether there was evidence that Elonis knew he was communicating a threat and intended to do so.

Here, the court also dodged the greater issue of whether just posting violent lyrics would be enough to convey a terrorist threat because it said there was plenty of evidence that Beasley knew what he was doing and intended it to be heard by the police. All of that evidence came from Beasley himself:

We need not ponder whether deciding to broadcast songs or linking YouTube videos to one’s Facebook page generally indicates intent to communicate, because [Beasley]stated his intent by saying in his rap song: “My momma told me not to put this on C.D., but I’m gonna make this fuckin city believe me, so nigga turn me up.” [Beasley] chose not to listen to his mother because he wanted Officers Zeltner and
Kosko to hear his message, and they did. He successfully and intentionally communicated his threat…. Here, [Beasley]posted a rap song on YouTube that specifically threatened to kill Officers Zeltner and Kosko while Appellant had criminal charges pending against him in which these officers were going to testify
.

80's artists -Today's terrorists?

80’s artists -Today’s terrorists?

The other argument that Beasley made as that he never “communicated” the threat to the officers since he only posted it on YouTube and Facebook and did not actually send it to the officers. This was a similar argument to one I made before the Georgia Supreme Court which involved a blogger making certain nasty statements about a person who was the subject of the blog. The Georgia Supreme Court ruled that repeatedly writing negatively about a person did not constitute stalking But that is the key: Here Beasley was not accused of stalking but of issuing a terrorist threat under section 2706 of the Pennsylvania Penal Code. And the law in Pennsylvania does not require a whole lot for you to get convicted of violating that statute.To be found guilty under that section, the Commonwealth must prove that 1) the defendant made a threat to commit a crime of violence, and 2) the threat was communicated with the intent to terrorize another or with reckless disregard for the risk of causing terror.” Beasley could not deny the first element and the court said the government had proven the second element by the evidence discussed above. As the court then pointed out:

“Neither the ability to carry out the threat, nor a belief by the person threatened that the
threat will be carried out, is an element of the offense. [Furthermore] a defendant does not need to intend to carry out the consequence of the threat to communicate a threat…. [Under the statute] [t]erroristic threats do not have to be communicated directly.”

So you don’t have to mean the threat or intend to carry it out; you don’t have to be able to actually carry out the threat; and the recipient of the the threat need not actually believe you can or will carry out the threat. You just have to make a violent threat with the intent to terrorize another or with reckless disregard of the risk of causing terror. This is a pretty expansive law that could very well capture a lot of innocent people and label them as domestic terrorists.

The First Amendment protects a wide swath of expression that many of us may find offensive, distasteful or even repugnant. (After all nice, appreciated, heart-warming speech doesn’t need protection because no one is trying to stop it) The government cannot silence and punish speakers just because it dislikes their expression. The First Amendment protects flag-burning; the pornography; and yes even hate speech. But it does not protect “true threats.” While the Supreme Court has never specifically defined what constitutes a true threat, it looks to the context in which the statement is made and whether the words constitute “a clear and present danger” to society. But where people used to be able to rant and rave on street corners or even make harsh comments to friends and family in in their social circles without worrying about the government overhearing, the Internet has changed all that. Many folks forget that positing is publishing and that depending on your privacy settings and how you post, you could be held to have intended for the whole world to see what you say or write.

Look at Beasley’s case again. He posted the link to the YouTube video on a Facebook page he managed which was labeled Beaz Mooga. He did not send the link to the officers, rather a different officer, working on the underlying drug and gun case performed an Internet search and found the Beaz Mooga page with links to various videos made by Beasley including “Fuck The Police.” The investigating officer then sent the link to the video to the officers named in the video. But the court focused on Beasley’s words that his “Momma” told him not to post it but that he didn’t care and that he said he didn’t care because he wanted “the city to believe me.” This case definitely blurs the line between threat and expression and while the defendant here certainly did not help himself by his own words and by his specifically targeting named officers form his case, many songs – both rock and rap – contain boasting and lack of concern for consequences. Is there any doubt that future courts will tend to side on the law enforcement side as opposed to the speakers’ side? If I were advising any artist with a pending criminal case in Pennsylvania I would certainly caution about what they put out there about their case and the police officers involved. Under this case, it would not take all that much to be then additionally charged as a domestic terrorist.

Here is the full text of the OPINION

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Apr 28 2016

Snapchat Sued Over Speed Filter After User Crashed at 107MPH

So apparently social media app Snapchat seems to have a knack for getting into trouble. First, teens and pre-teens loved the app as a vehicle to send nude photos because the pictures supposedly disappeared soon after sending them. But capturing a screenshot of your phone saved the pics forever and soon enough people were sharing the images and getting arrested for sharing child pornography. Then on 4/20, Snapchat caught more heat for itsBob Marley filter that let you add dreadlocks, a knit cap and a darker skintone to any picture of yourself to “honor” Bob Marley on National Get High Day.

But now comes more legal trouble after a Georgia man, Wentworth Maynard, was merging onto a four lane highway outside of Atlanta, Georgia when his car was struck by another vehicle at an extremely high rate of speed. It seems 18 year old Christal McGee was allegedly driving the car that struck him; the accident occurred while she was on her phone trying to use the Snapchat speed filter. “McGee wanted to post an image of herself going fast. She argued that she was, ‘Just trying to get the car to 100 miles per hour to post it on Snapchat.'” the victim’s lawyers say. A passenger in McGee’s car said she had hit 113 mph on the Snapchat filter, the lawyers added. When the cars hit, the speed of the car was apparently 107 mph in a 55 mph zone.

SnapchatThe lawsuit filed in Spalding County Georgia of course predominantly blames McGee but claims Snapchat facilitated the crash by causing the distracted driving. I don’t see it succeeding against Snapchat, however. Look, is it foreseeable that if you have a speed filter that folks are going to try and see how fast the car can go and then post it? Sure, but folks have also taken cellphone videos of their speedometers and posted that on YouTube almost ever since there was a YouTube. Why not sue the phone company for putting in a camera? Its essentially the same thing. Come to think of it, why not sue the car company for letting the vehicle attain 113 and 107 mph? Snapchat of course has disclaimers on its app. Snapchat’s terms of service state: “Do not use our services in a way that would distract you from obeying traffic or safety laws. And never put yourself or others in harm’s way just to capture a snap.” The filter itself also contains a warning that says “don’t snap and drive.” I believe these disclaimers and that no one at Snapchat forced or dared Ms.McGhee to travel 113 mph will lead to a dismissal of the lawsuit.

Mr. Maynard suffered terrible injuries, including sever brain trauma. According to his lawyers, he now has to use a wheelchair or walker to get around and has never returned to his job as an Uber driver since the accident which occurred in 2015.McGee, who was also injured in the accident, apparently also took a Snapchat while she was in the ambulance, on a gurney, with blood on her face.

The caption: “Lucky to be alive.” Here’s her Snapchat post courtesy of Mr. Maynard’s lawyer Michael Lawson Neff:

Mcgee

Here’s a copy of the complaint

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Apr 19 2016

Liang’s No-Jail Sentence Reflects Proportionality Missing From Many Criminal Cases

Brooklyn Supreme Judge Danny Chun sentenced former NYC Police Officer Peter Liang to 5 years Probation and 800 hours of community service for the shooting death of 28 year old Akai Gurley in a stairwell of the Pink Houses apartment complex. A few weeks ago, Brooklyn DA Kenneth Thompson shocked many people, especially those in the Brooklyn African-American community, when he wrote the court to set forth his office’s position that Liang should be sentenced to 5 years probation, 6 months house arrest and community service. The court essentially aligned itself with that position but did not give the house arrest instead opting for more community service saying:

“As I watched the video of the defendant entering the lobby of the Pink Houses, I couldn’t help but feel he was entering with the serious mind of protecting the people [there].Shooting somebody never entered his mind. This was not an intentional act. This was an act of criminal negligence.I find incarceration to be unnecessary,” adding “instead of sitting at home, I think he will be much more productive if he spends more time in community service.”

lady justiceThe judge went one step further, dismissing the jury’s verdict of manslaughter thereby reducing the conviction to criminally negligent homicide. For those readers who are not criminal defense lawyers, let me say this – a judge doing dismissing a jury’s finding of guilt is about as rare as a unicorn being ridden by a leprechaun. To do it in a high-profile, racially charged case makes it that much more extraordinary. The outrage from the Gurley family and several community activists was swift and heated. Assemblyman Charles Barron had said that there would likely be violence in the streets if Liang did not get jail.

The issue with the judge’s decision – and the DA’s stance at sentencing – should not be that they were wrong or that the family deserve retribution and payback for what happened to Mr. Gurley. Rather, the outrage and opposition should be that not enough criminal cases are resolved with the introspection and analysis that was afforded Officer Liang. Many agitators will likely point out that the judge, like the defendant is Asian; many more will likely point out that the defendant was a police officer. And while I do not think the first factor played a role, I do believe that the second factor rightly played a role. As the judge noted, Liang was there doing his job; now, he performed it horribly but he was there as a law enforcement officer nevertheless. And his loss of his job, reputation, a now having a criminal record is a runaway train through his life. Yes, his actions caused the death of a an innocent man but the purpose of the criminal justice system should not be retribution, blood-thirst and vengeance. Judge Chun and DA Thompson’s positions properly balanced the various factors of the defendant’s life and actions with the harm caused by his actions.

The shame of this is that this thoughtful and reasoned analysis – particularly AFTER a guilty verdict has been rendered – rarely occurs and would likely not have occurred here if the defendant was anything but a police officer. So the hope is that defense attorneys in the future can use what happened in the Liang case to push for similar treatment of their clients.

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