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:


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.

Apr 06 2016

NY Court: Minor Child’s Parent Can Secretly Record Other Parent

NOTE: I was the trial attorney for this case People v. Badalamenti that I am discussing today. Everything I write about below comes only from the published opinion.

The NY Court of Appeals, in a 4-3 split decision issued yesterday, ruled that a parent can secretly record a conversation between a minor child and anyone else – including the other parent as long as the recording parent has a good faith belief that to do so would be “in the best interest of the child.” This ruling could have large implications especially in the field of matrimonial law.

A quick summary of the case: The defendant was charged with using a belt to beat the 5 year old son of his live-in girlfriend. The defendant testified that it was the child’s mother and not him that beat the child. A key piece of evidence was a cell phone recording made by the child’s father during a call to the house. He had called several times without reaching her; the calls went directly to voicemail. Finally, a call went through, but no one said anything to the father. However, the line was mistakenly left open, and the father was able to hear what was occurring in the defendant’s apartment. Defendant and the child’s mother were yelling at the child, who was crying. Defendant could be heard threatening to beat the child and punch him in the face. The father, using another cellphone, tried to call the landline telephone in the apartment, but no one answered that line. The landline phone could be heard ringing during the taped incident.

At this point, the father decided to record what he was hearing using a voice memo function on his cellphone. On the recording, which was played to the jury at defendant’s trial, the defendant told the five-year-old boy that he was going to hit him 14 times for lying and that this would hurt more than a previous beating. The father saved the recording on his cellphone. He did not however contact the police.

Blind but not deaf

Blind but not deaf

At trial, when the prosecution decided to introduce the tape, I objected like a madman on several grounds, most notably that the recording violated NY’s prohibition on wire-tapping and eavesdropping which requires at least one party’s consent before a conversation can be recorded. I also argued that the evidence was being used to prove “propensity” – that is, if the defendant beat the child before, he likely beat the child this time. The Court’s decision did not address the second argument or any of the others I made regarding lack of timely exchange etc, and focused only on the wiretapping argument.

NY Penal Law 250.05 prohibits eavesdropping and makes it a crime to secretly record a conversation without at least one party’s consent. NY’s Civil Practice Law & Rules section 4506 (also applicable to criminal cases) makes eavesdropped conversations inadmissible at trial. The trial court allowed the recording to be admitted into evidence, holding that the father’s action was not eavesdropping, and that, even if it were, it was justifiable on the basis of the “duty of the father to take some action once he heard [defendant’s] conduct.” The Appellate Division held up the trial court’s ruling on the grounds that the father had “consented on behalf of the minor child.” That court relied upon a Federal decision out of the Sixth Circuit (covering Michigan, Ohio, Tennessee and Kentucky) called Pollack v. Pollack where a parent secretly recorded a conversation between the recorder’s 14 year old child and a step-parent. Pollack was followed in one NY case, relied upon here, called People v. Clark. In that case, the mother of an eight-year-old boy with autism, who had noticed that her son was coming home from school with bruises, placed a recording device in her son’s backpack, and recorded evidence of a “conversation” at which the boy was present, that established the guilt of his personal bus matron.

The Court of Appeals upheld this analysis and it now becomes the law of the State. In deciding that a parent need only show that they are recording the conversation “based on a good faith reasonable belief” that to do so would be in the best interest of the child’s welfare, the Court paid lip service to the notion that the case would lead to abuse by parents. It did list four public policy factors that might be counter to the ruling:

(1) It is subject to misuse and abuse by scheming parents; (2)It allows for an invasion of the child’s privacy; (3) it fails to recognize the child’s right to make his or her own choices; and (4)It will result in inter-family discord and resentment when a child finds out that his or her parents have been secretly recording private telephone conversations.

But it essentially said all those were outweighed by an analysis of the best interest of the child and the reasonableness of the parent’s good faith belief it was necessary to record the conversation in the child’s best interest. It again recognized the strong public policy against eavesdropping but said trial court’s in conducting hearings prior to letting in the taped conversations could address all those concerns.

The dissent disagreed. It cited the plain language of the statute which prohibits exactly the conduct that occurred – that is, taping a conversation without one party’s express consent. The majority’s decision basically amended the statute to add a “vicarious consent exemption.” The dissenters pointed out that People v. Clark ruling went against many other NY appellate rulings that held the best interests of the child do not support allowing eavesdropping. They said it was a job for the Legislature and not the court to decide if they wanted to draft this amendment to the statute. The dissent focused and highlighted the potential for abuse:

For example, parents in the midst of bitter custody disputes will now be less deterred from eavesdropping on and recording their children’s conversations with the other parent, incentivized by the possibility of obtaining admissible evidence prejudicial to the other parent. The ability to obtain evidence in this manner — evidence which, aside from two recent appellate decisions, has heretofore been deemed inadmissible in New York court proceedings — will undoubtedly lead to increased familial tension, escalation of hostility in divorce and custody proceedings, and will result in mini-trials regarding whether the evidence is admissible, thereby further prolonging such disputes, all to the detriment of the children, themselves

To highlight the vagueness of the standard applied by the majority, the dissent focused on the testimony of the father I elicited during cross-examination where he admitted that while listening to the conversation he was not concerned for the child’s physical safety: “The tone was getting louder and louder as I listened, but as far as physically, no, I didn’t think he was being harmed like that.” This, coupled with the father’s not reporting the taped incident to any authorities until well after the arrest of the defendant many months later proves that the majority’s decision “may ultimately turn out to be an ineffectual one because courts will likely be loathe to reject evidence relevant to the welfare of a child, now that it may be admissible, even if procured in bad faith” and without a good faith belief of harm to the child. They held that the “highly-prejudicial tape” should have been deemed inadmissible and would have granted the defendant a new trial.

So yes, it was a close call, but in the end that will be irrelevant. A 4-3 decision has the same binding effect as if it was 7-0. Yes the dissent’s strong opinion may be used by court’s to limit the reach of Badalamenti but you can bet that many litigants will now be setting up microphones and recording devices in their kids’ backpacks, toys, rooms, etc to hopefully catch some nasty or useful evidence against their ex-spouse. Frankly, matrimonial lawyers will almost always be able to craft a “good-faith” basis why the child’s conversations should be recorded. These tapes will soon become a regular part of the divorce process.

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Mar 27 2016

Brooklyn DA Walks Tightrope Recommending No Jail in Cop Shooting Case

Brooklyn NY District Attorney Kenneth Thompson is getting heat for recommending no jail time for convicted rookie Police Officer Peter Liang in the shooting death of Akai Gurley. But this case presented DA Thompson with a difficult position from the outset and I think the way he has handled it took a great deal of courage and displayed an understanding of the balance and purpose of the criminal justice system.

In February of this year, A Brooklyn NY jury convicted NYC Police Officer Peter Liang of reckless manslaughter for the shooting death of Akai Gurley. Mr. Gurley, a young black man and father of a two year old child, was taking the dimly lit stairway in the Pink Houses Housing Project because its elevators were once again out of order. Rookie cop Liang was doing a vertical patrol of the stairway with his gun drawn, which is NYPD protocol;he did testify however that he had his finger on the trigger,which is against the training and protocol he learned at the Police Academy. He also testified at his trial that as he was trying to open a stairway door, he heard a noise to his left that startled him and his gun accidentally went off. The bullet ricocheted off a wall and hit Mr. Gurley, subsequently causing his death. Without a doubt, the incident was a tragedy, needlessly taking Mr. Gurley’s life at too young an age. I wrote a blog post here that in many instances such a matter would not make it to criminal court and would be treated as a civil matter. But DA Thompson brought the case, had it indicted, and obtained a conviction. Kimberly Ballinger, the mother of Gurley’s daughter and Sylvia Palmer, Mr. Gurley’s mother had high praise for the DA at the time of the conviction. Ms. Ballinger said “I want to Thank God. The DA is a man of his word.” Ms. Palmer said “I want to thank the District Attorney’s Office. The entire staff did a very good job of presenting the evidence.” Predictably, Patrick Lynch, head of the NYC PBA, the police officer’s union, was indignant that charges had even been bought in the first place.

DA Ken Thompson

DA Ken Thompson

But the City and nation were still reeling from numerous instances of young men of color shot or otherwise killed by police officers who then faced no prosecution or punishment. In advance of Liang’s April 14 sentencing, DA Thompson sent a letter to Judge Chun who will be presiding. In it he recommended that Liang serve no jail time; do six months of house arrest; be placed on five years probation; and perform 500 hours of community service. He acknowledged the rookie status of Liang and the great unlikelihood that he will ever become involved in crime again. He then stated:

“There is no evidence . . . that [Liang] intended to kill or injure Akai Gurley. When Mr. Liang went into that building that night he did so as part of his job and to keep the people of Brooklyn and our city safe. In sentencing a defendant, the facts of the crime and the particular characteristics of that person must be considered. . . As I have said before, there are no winners here. But the sentence I have requested is just and fair under the circumstances. From the beginning, this tragic case has always been about justice and not revenge.”

Mr. Gurley’s relatives were outraged, particularly since the DA did not talk to them prior to issuing his recommendation. Ms. Palmer called the decision”a modern day lynching.”But Mr. Gurley’s civil lawyer, Scott Rynecki, reminded the press that Thompson’s office “accomplished what many others have not. They were able to obtain the indictment and conviction of a police officer for the wrongful shooting and death of an innocent man.” Even Liang’s lawyers praised the DA’s Office calling the recommendation “exceptional” and adding that the decision was “dispassionate and courageous.”

And it was. What others might miss however is that perhaps, this case will also present a tone and manner of thought that is applied to all cases. The principal icon of our justice system is the Scales. Justice means balancing the different factors that are inherent in all criminal cases: the nature of the crime; the character and background of the defendant; the need to protect society; and the need to ensure that punishment is not meted out solely to appease the thirst for blood but to meet societal goals that include re-integrating the accused into society. It would be a great day indeed if District Attorneys across the country took Ken Thompson’s holistic approach here and viewed the entire big picture before deciding on the easy answer of “lock him up and throw away the key.”

You can read DA Thompson’s full statement HERE

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Mar 22 2016

Supreme Court Issues First Split Decision Since Scalia’s Death

The Supreme Court today issued its first evenly split ruling since the death of Justice Antonin Scalia: a decision in a minor banking case called Hawkins v. Community Bank of Raymore involving spouses who serve as guarantors for each other’s debts. The spouses claimed that they were forced to sign the guaranties due to their marital status which allowed them to claim discrimination under the Equal Credit Opportunity Act (ECOA) which prohibits discrimination based on marital status. The issue was whether the spouses, by being guarantors as opposed to an actual borrowers, qualified under the ECOA which applies only to credit applicants.

US Supreme Court

US Supreme Court

The Eighth Circuit said that a guarantor was not an “applicant” since they were not directly seeking credit for themselves but instead were just guaranteeing a note for their spouses.The 4-to-4 ruling was “per curiam,” which means it was handed down in the name of the entire court, so nobody really knows what justice was on which side and it contained no opinion so there is no reasoning as to why each side voted the way it did. The opinion was just one line long: “The judgment is affirmed by an equally divided Court.” Like all 4-4 rulings this ruling sets no nationwide precedent and leaves the lower-court ruling as the final decision in the case. Other Circuit Courts, like the 6th Circuit have ruled that guarantors are applicants under the ECOA. Normally, one of the Supremes’ main jobs is to resolve a split between the Circuit Courts. Oh well.

And while this might be an esoteric banking case, it highlights the problem with an 8 person court. Leaving the law unsettled for now could be either good or bad for major cases where future splits are a possibility — including pending disputes on abortion, affirmative action, public union fees, immigration and contraception coverage under the Affordable Care Act. Those cases will likely be decided now on the basis of geography. In the public union fees case, for example, a 4-to-4 split would be an important victory for labor, since union advocates won that case in the U.S. Court of Appeals for the 9th Circuit, which is one of the most liberal Circuits.

A 4-4 split ruling in a key Texas abortion case, from the much more conservative 5th Circuit, would uphold major restrictions on a women’s access to reproductive services, since the lower-court ruling upheld the Texas abortion clinic regulations that were at issue.

It looks nearly impossible that the Senate will confirm or even consider the nomination of Merrick Garland even after this election so this stalemate could be with us for a very long time. A new president would not likely get a nominee before the Senate until February 2017 and then depending on the nominee and the current makeup of the Senate, it could be a lengthy confirmation process I wish the Senate would listen to a well-respected Supreme Court Justice who once lamented about an 8 person court:

“The Court proceeds with eight Justices, raising the possibility that, by reason of a tie vote, it will find itself unable to resolve the significant legal issue presented by the case.”

That was Antonin Scalia by the way.

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