False Light Defamation

The San Francisco Chronicle reports on the 9th Circuit Court of Appeal defamation suit that should encourage Shirley Sherrod, the recently fired USDA employee who was a victim of so-called conservative journalists who pieced together "clips" of a speech she delivered to the NAACP, that made it appear that this African American federal public servant discriminated against white farmers in programming that Sherrod administered.  The concept of "false light" is that persons can defame you my manipulating and massaging video and audio to create a "false light" for the purposes of what was precisely done to Mrs. Sherrod, cost her, her job. 

"The case given attorneys for Mrs. Sherrod encouragement involves an ABC/20-20 story about a televangelist reported by right-wing correspondent, John Stossel (pic).  Here's reporter, Bob Egelko's story forthe San Francisco Chronicle story:  A federal appeals court reinstated a slander suit Tuesday against ABC-TV by a Southern California televangelist who was misleadingly shown on '20/20' as bragging about his wealth.

The ruling could come into play in another national media controversy - this one involving a U.S. Department of Agriculture official who was fired after a blogger posted a video that appeared to show her making racist remarks that in fact were taken out of context. The Rev. Frederick Price (pic, left) sued ABC and its then-correspondent, John Stossel, over the news program's use of a film clip of one of his sermons in a March 2007 program.   It showed him telling his congregation, 'I live in a 25-room mansion. I have my own $6 million yacht,' a private jet, a helicopter and seven luxury cars.

Stossel introduced the clip by saying Price boasts of his riches, and followed it with a discussion with a watchdog about ministers who hide their church's finances.   In fact, however - as ABC acknowledged in a subsequent apology and retraction - Price was speaking not about himself, but about a hypothetical person who was materially wealthy and spiritually unfulfilled.

Price is the founder and pastor of the Crenshaw Christian Center/Ever Increasing Faith Ministry, which claims 22,000 members and preaches the 'prosperity gospel' of financial reward to believers. He owns a $4.6 million house and a Rolls-Royce and travels the world in a church-owned jet, the appeals court said.

A federal judge dismissed his defamation suit, saying the film clip was 'substantially true' because Price is wealthy and has spoken about it elsewhere. But the Ninth U.S. Circuit Court of Appeals in San Francisco said an out-of-context quotation that distorts the speaker's meaning can be libelous.  The Supreme Court has established that the accuracy of a quotation is determined by 'loyalty to the speaker's intended meaning,' the appeals court said.

'The video quotation of Price's statement materially changed the meaning of Price's words,' and he is entitled to try to prove that the film clip was a knowingly false presentation that hurt his reputation, Judge Mary Schroeder said in the 3-0 ruling.

The decision was issued the same day Shirley Sherrod turned down an offer to return to the USDA, which fired her from a job in Georgia in July after video excerpts of one of her speeches circulated on the Internet.

The video depicted Sherrod as a racist who refused to help a white farmer, but it was actually taken out of context from a talk to the NAACP in which she discussed her past and the need to move beyond race. Sherrod says she is considering a defamation suit against Andrew Breitbart, the blogger who posted the video. If Sherrod sues, 'this decision should make her very happy,' said Price's lawyer, Andrew Glassman.

Despite ABC's apology to Price, he said, the minister suffered substantial harm to his reputation from a distorted telecast that was seen by millions.  Jeffrey Schneider, ABC's senior vice president for news, said the network is confident that it will ultimately prevail in the lawsuit."
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I've been working on a matter at my W-2 job, where a large area employer followed it's disabled custodian around, filming her for 3 calendar years.  Possibly hundreds of hours of video were obtained, and yet only 4 hours of surveillance were turned over to her attorneys, and of the 4 hours of video, the employer's investigator massaged together a "17 minute edit: with jump cuts to make it appear that this genuinely crippled woman is "able-bodied."  It's actually a pretty amazing Soviet-style manipulation of images intended to screw her out of her benefits; and, for the moment, it worked.

The attorneys at my day job are pursuing a "false light" defamation claim which has only recently been recognized, here, in OurState. The defendants are expected to argue that since they screwed her in a "workers' compensation administrative proceeding" their defamation of her was "privileged."  Ah, yes, the old affirmative defense of privilege to commit intentional harm.  It's actually pretty astonishing how often this argument has sway in OurState.

Corydon, Indiana Republicans Host "America's Toughest Sheriff"

The Louisville Courier-Journal reports on Joe Arapio's fundraising visit to Harrison County, Indiana.  In the picture he is shown searching for his heart as he and the local Republican chair say the Pledge of Allegiance.  This amusing account of the Arpaio is from reporter Harold Adams:

'The Arizona sheriff who bills himself as 'America’s Toughest Sheriff' said he was 'a little disappointed' in his visit Saturday night to Harrison County to raise money for local Republican political candidates. 'Wherever I go I have demonstrators. I haven’t had any demonstrators [BL--Yeah, I bet, this is because this area of Indiana was dominated by the KKK in the 1920s],' Maricopa County Sheriff Joe Arpaio said while meeting with reporters at the First State Office Building in Corydon.

Arpaio, who often speaks around the country, made sure reporters understood how to pronounce his name: 'It’s Ar-pie-o, none of this Ar-pay-o.'

Arpaio began his Corydon visit with a $500-a-person reception at the office of attorney Maryland Austin, which was closed to the media. That was followed by a reception at the office building, where about 250 people paid $120 each to meet and have their picture taken with Arpaio and attend a dinner at St. Joseph Catholic Church, where he was the featured speaker.
Arpaio has received a lot of national attention recently for his hard stance on immigration. He had his deputies check the immigration status of people they think might be illegal aliens long before Arizona passed a controversial state law requiring such checks. The law was slated to take effect last month but a U.S. District Court judge issued a preliminary injunction stopping its most controversial features from being enforced.

The 78-year-old Arpaio, who wore a gold-colored Glock pistol tie tack with his dark suit, proclaimed with a smile that he was under investigation by the U.S. Justice Department for possible racial profiling for his enforcement of immigration laws.

He encountered only admiration at the event.

New Albany resident Sarah Spivey was typical of those who approached Arpaio.

'You are my hero. May I shake your hand?'  Spivey said as she made her way toward the sheriff. 'My sons and I follow your life and history as much as we can.'  Spivey’s friend, Virginia McGuirk, told Arpaio, 'I wish we had a bunch of sheriffs around here like you.'

The present sheriff of Harrison County, Democrat Mike Deatrick, is under indictment for sexual battery and criminal deviate conduct against two sheriff’s department dispatchers. Deatrick has pleaded not guilty. Rod Seelye, the Republican nominee in the November race to replace Deatrick, is one of the candidates who will benefit from the money raised by Arpaio’s appearance.

'I think some of the models that he’s set in Arizona will play well here,'   Seelye said.
Arpaio has long been controversial for his hard attitude toward jail inmates. Among other things, he’s known for housing some jail inmates in tents, starting a female chain gang and making all inmates wear pink underwear.  Seelye declined to endorse any specific policies of the Arizona sheriff, saying only, 'I think he runs a tight ship. … I’m talking about running a very professional law enforcement agency.'"
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These Hoosiers can get themselves a Sheriff like Joe Arpaio--move to Phoenix.  Apparently dumb white folks are needed down there, in force, as an antidote to everyone else with an IQ slightly above simian.

Remember this Baltimore Cop--He's Fired

Good.  Here's the link at the Baltimore Sun on the dismissal.

"Fat" Hooters Chicks Can Sue!

A Michigan judge has ruled that two Hooters' waitresses can proceed with their weight-based discrimination lawsuit.  This story is from ClickOnDetroit.com:

A Michigan judge has given the go-ahead to lawsuits by two ex-Hooters waitresses who say they were fired because of their weight.

Cassandra Smith, 20, has worked at the Hooters in Roseville for two years. During an annual employee review in June, Smith said two women from the company's headquarters in Atlanta joined her bosses via conference call.  Smith said she was complimented on her attitude and customer service skills, but that during her uniform evaluation the women mentioned that her shirt and short size could use some improvement.

Smith said she is 5 feet 8 inches tall and 132 pounds and is completely comfortable with herself. Smith said the women told her she would be given a free gym membership and had 30 days to improve, and if she did not, she would be separated from the company.

The company's uniforms are offered in small, extra small and double-extra small.

Mike McNeil, vice president of marketing for Hooters of America Inc., said the company has fought several battles to uphold their image, and they are not going to back down from this one.  'We're not afraid of a fight, whether that be from a city, state or a law firm,' said McNeil. [In otherwords, Hooters: "get your stinkin' law off of me"]

Michigan has a pioneering law that prohibits discrimination based on weight. The 1976 law also bans discrimination based on age and height. Hooters of Roseville Inc. and Hooters of America Inc. say the law shouldn't apply because their waitresses are entertainers whose appearance is a legitimate concern.

Macomb County Circuit Judge Peter Maceroni on Monday denied Hooters' request to dismiss the suit because the waitresses had signed an arbitration agreement. Maceroni says the women may not have knowingly waived their right to sue.

The suit are by Cassandra Smith and Leanne Convery.

McNeil said the company has an image to uphold and that image will not be tarnished because of a state law.

'It matters what they look like in Michigan and we intend to defend ourselves all the way,' he said. McNeil said Smith's lawsuit is baseless and self-serving and that she is ruining her own case. 'In her own words -- the plaintiff has told everybody that would listen that she is 5 foot 8, which is certainly not overweight,' said McNeil."
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Do you see how the role that arbitration clauses play in shutting down employment lawsuits?  Remember Sen. Al Franken's takedown of the defense contractors, last year?  It was precisely over the arbitration clauses built into these employment provisions cutting off the rights of workers who are subsequently discriminated against by their employers and supervisors

Lawyer Schemer, Scammed

The ABAJournal.com tips to this Washington Post article about the Montgomery County malpractice lawyer who was using his IOLTA account to improperly pay bills apparently fervently hoping he could get his bills, his taxes and his clients paid.  Bradley Schwartz's downfall was when he fell for the foreign client "retainer scam."  The way this thing works is that a lawyer receives an unsolicited retainer from a prospective foreign client written on a real check.  The foreign client writes, in effect, I'm owed lots of money from so-and-so will you represent me?  Oh, here's your retainer, a check for a small fortune is enclosed, but I mis-cut this check please deposit and refund $5,000, $10,000.  The idea is the greedy recipient deposits the check and without thinking sends along a check in the requested amount.  It turns out that the "retainer check" is "NSF," but the lawyer's refund check is stolen by the scammer. 

In the case of Bradley Schwartz, the schemer's $325,000 "NSF" check was deposited into a deep, dark hole, and Schwartz who owed clients nearly a $1 million dollars, started writing overdue checks to clients which immediately began bouncing.  This led to a criminal investigation resulted in Schwartz's jailing.  He was sentenced to 5 years, in what the sentencing judge called a tragedy of Shakespearean proportions.  Apparently Judge Salant meant Falstaff, as Mr. Schwartz was living large and gambling the money that did not belong to him. 

Arizona Election Results

AZCentral.com is reporting this morning that the political career of Andrew Thomas, former Maricopa County Attorney and water boy for Sheriff Joe Arpaio, may have come to an end.  As you will recall from the stories on Bad Lawyer, Thomas quit his job mid-term, a-la, Sarah Palin to run for higher office, Attorney General.  Thomas appears to have narrowly lost in his bid for the Republican nomination.  Amazingly, Thomas lost to a local lawyer who ran an investment scheme that went belly-up in college resulting in a bankruptcy that the lawyer subsequently lied about in various filings.  How bad a candidate do you yourself have to be to lose a race for attorney general to a "con artist" which is what Thomas called his opponent, Tom Horne?   If the election results hold, Horne will face democratic challenger Felecia Rotellini in the general election. 

Tellingly, returns from Maricopa County played a significant role in the projected electoral defeat of Thomas.

In a separate story, AZCentral.com is reporting that Sheriff Joe Arpaio who utterly hates interim County Attorney Rick Romley may have played a role in defeating Romley's bid to win election to the the County attorney position by illegally running ads and sending mailers on behalf of Romley's opponent.  The local electoral commission found Arpaio's interference in this election violated election laws as it relates to the mailers Arpaio paid for and distributed.  Romley appears to have lost the race by a wide margin although the defeat may have been attributable to complex and underhanded manipulation of candidacies and of course Arpaio's seemingly bottomless deep pocket. 

We will see how this turns out.  As with all things Arpaio, more shall be revealed.

Good For You, Chicago!

 A US Federal Circuit Court of Appeals upheld the conviction of a Chicago Cop who handcuffed a stabbing victim to a wheelchair, and unprovoked beat him.  The beating was caught on video.  Tuesday the 7th Circuit Cout of Appeals upheld former officer William Cozzi's 40-month prison sentence for violating the rights of Randle Miles.  This is reporter Frank Main's Chicago Sun Times story:

A Chicago Police officer’s controversial 40-month federal prison sentence for beating a man handcuffed to a wheelchair has been upheld.

Police Supt. Jody Weis did nothing wrong when he alerted the FBI that Officer William Cozzi lied about the incident, the U.S. 7th Circuit Court of Appeals says.  Cozzi’s attorneys had argued Weis violated the officer’s rights by sending two e-mails to an FBI agent asking if the bureau had investigated Cozzi for civil-rights violations.  The e-mails disclosed that the previous superintendent had unsuccessfully tried to fire Cozzi and that Cozzi 'falsified his statement' during an internal police investigation. Weis, a former FBI official, also sent the FBI a videotape of the beating.

A 1967 Supreme Court decision, Garrity v. New Jersey, protects officers from self-incrimination, barring prosecutors from using statements officers are required to give their departments during internal police investigations.

The 7th Circuit said prosecutors weren’t given any reports that contained Cozzi’s protected statements to police investigators. And Weis didn’t tell the FBI what Cozzi’s statements contained, the appeals court said. 'We do not think that simply saying a statement was ‘falsified,’ by itself, is enough to impute improper use of the statement to prosecutorial authorities,' the appeals court said in its ruling late last month.

The appeals court also rejected Cozzi’s argument that he shouldn’t have been sentenced under federal guidelines for aggravated assault.  'In his federal plea agreement, Cozzi acknowledged that he hit [the victim] in the face with a dangerous weapon,' the court said.

Rank-and-file officers were furious with Weis over his decision to notify the FBI about the beating. Many officers felt Cozzi was being punished twice for the same crime. He had previously pleaded guilty to a misdemeanor in state court and was sentenced to probation.

In January 2008, a month before he became superintendent, Weis saw a videotape of the beating, which was obtained by the Chicago Sun-Times in a Freedom of Information request. He told reporters he was unhappy with the Chicago Police Board’s decision to suspend Cozzi for two years instead of firing him, and promised to review the case. The same month, Weis sent the e-mails to the FBI.

In federal court, Cozzi pleaded guilty to violating Randle Miles’ civil rights. Miles, a stabbing victim, was drunk and abusive to the staff at Norwegian American Hospital after he was taken there for treatment in August 2005.

Cozzi had handcuffed and shackled Miles to his wheelchair before striking him, court records show. A hospital surveillance video captured the beating — and showed Cozzi was lying when he said Miles provoked the incident by throwing punches. Before he was sentenced in June 2009, Cozzi told a federal judge that he 'let my frustration get the best of me.'

Afterward, his lawyer, Terry Gillespie, lashed out at Weis, warning Cozzi’s fellow officers that 'you’ll get thrown under the bus and it’ll be a federal bus — and it’ll be your own superintendent.' '
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Take note, New Orleans, Detroit, Baltimore, Cleveland, Las Vegas . . .

But also note, how the bad guy in this story is the Superintendent of police who reported the crime!  Amazing.

Free Speech Can Come Down to Inches

The great Portland Court Reporter, Aimee Green at the Oregonian has this report of Free Speech adjudged by intent not mere inches:

"A judge has acquitted two anti-fur protesters of accusations they violated a restraining order by standing 4 inches too close to the owner of Nicholas Ungar Furs in downtown Portland.  Portland police and prosecutors had alleged that protesters Justin Kay and Jeffrey Wirth were approximately 49 feet, 8 inches away from fur merchant Horst Grimm when a restraining order stated the two protesters must stay at least 50 feet away.
Share In a trial that ended Wednesday, Multnomah County Circuit Judge Maureen McKnight listened to several hours of testimony and argument about the accuracy of protesters who used a measuring tape versus the accuracy of a police officer who used a laser-measuring device.

Kay, 21, and Wirth, 25, said they and other protesters used a measuring tape to mark off 50 feet of distance from the store's front door, which Grimm would use to leave the building. To be sure they didn't violate the restraining order, they always stood back at least a few feet to provide a buffer, they said.

But Kai Grimm, Horst's son, who also works at the store, believed the men were too close. He snapped a photo of protesters next to a light pole at Southwest 12th Avenue and Yamhill Street, and told police he'd spotted Kay and Wirth there on Nov. 18. The next day, police Officer David Sessum measured the light pole at about 4 inches shy of 50 feet from the front door of Ungar Furs.

Sessum testified that as he stood next to the pole, Wirth stood nearby – and again violated the restraining order for being within 50 feet of Grimm, who at that moment had just exited the store.  Deputy District Attorney Lauren Kemp argued that although the distance in dispute isn't much, Kay and Wirth 'chose to put themselves in a precarious situation' by standing so close to the 50-foot limit. The onus, she said, was on them to stay clear of Grimm.

In announcing her ruling, [Judge] McKnight explained that she thought the police officer did a more accurate job of measuring the distance.  'But that's not the issue,' McKnight said.   What did matter, the judge said, was whether Kay and Wirth thought they'd stepped within 50 feet of Horst Grimm. And it was clear, the judge said, that they did not think they had.  'I believe they attempted to honor the order,' McKnight said. To violate a restraining order, the defendants must 'willfully' disobey it, McKnight said.

She said authorities should mark precisely where they thought 50 feet from the door is to avoid future disputes.

But that's a moot point for Kay and Wirth, at least for now. The restraining order against them expired last month, and Horst Grimm hasn't applied for a new one. That may be because the organized protests stopped in February or March, about the time that Kay and Wirth learned prosecutors were going forward with their case.

The ruling drew big smiles from Kay and Wirth; their attorneys, Kenneth Kreuscher and Paul Loney, who took on the case pro bono; and more than a dozen people who sat through the trial as supporters.  The dispute arose after sign-holding, chanting and sometimes loud and confrontational protesters began showing up at Ungar Furs in late 2008. Kay and Wirth testified they protested about three to five days a week, for about four hours a day.

In a YouTube video, protesters can be seen holding a 'Bloody Fur Fashion Show' in 2009 in front of the store. In another video, protesters can be heard chanting 'Forty dead animals, one fur coat!' Someone can be heard shouting an expletive at Horst Grimm as he leaves his store and makes his way through the crowd.

'We certainly said things like he's a murderer, and I stand by that as a point of fact,'  Kay said in an interview after the ruling.  But Kay said he, Wirth and others never touched Grimm or his son, or threatened to hurt them. Kay contends that Grimm pushed protesters and struggled with one protester to take her camera.

A man who answered the phone at Ungar Furs on Wednesday and didn't identify himself said the Grimms decline comment.  Horst Grimm got restraining orders against Kay, Wirth and two other protesters last summer in Clackamas County, his home county, under Oregon's Elderly Persons and Persons with Disabilities Abuse Prevention Act. Because Grimm was 75, he didn't have to prove he was at risk of being physically harmed. Rather, he could get a restraining order by proving that he was called inappropriate or profane names or that he was ridiculed, intimidated or harassed.

With Wednesday's acquittals, Kay says protesters are thinking about restarting their campaign in front of the store.  Kreuscher, Kay's attorney, said the protests are constitutionally protected speech, and any restraining orders preventing protests too close to the store or Horst Grimm are unconstitutional.

'That's the beauty of the First Amendment, of freedom of speech,'  Kreuscher said. 'They protect the rights of people to say things that may be offensive to some people...People have the right to say things, even if they upset other people.'"
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The thing I like about Aimee Green's articles at the Oregonian, is that her stories are fresh and reach for details that most other court and cop reporters ignore that supply a real essence to what the underlying disputes are about.  Green also includes fact and descriptions that make mundane cases truly extraordinary.  I'm a big fan.

My dear friend, Pat, is a life long, rabid Right to Life protester.  Over the weekend we were cycling through the OurCounty Metropark and I was telling him about seeing him decades before swarming with a bunch of college kids through a Public Square crowd passing out Right to Life literature.  Pat's unusual law career in part is attributable to First Amendment efforts on behalf of Right to Life organizations.  The contours of the rulings in Pat's many cases echo in this story, and thus always attract my attention.  You may not appreciate a viewpoint or put another way, a point of view can be offensive to you and yet positively effect your rights and privileges. 

The notion that we have gotten to a place in our public discourse that allegedly serious men and women would amend the US Constitution in their xenophobia or for political gain should be deeply offensive to all of us. 

Lying Will Be a Firing Offense for New Orleans Police

Reporter Laura Maggi at the New Orleans Times-Picayune reports that the New Orleans police havadopted a new policy applicable to officers. From now on, lying can get you fired. 

Now, that's a start.  Here's Laura Maggi's account:

New Orleans police officers who lie while on the job or file a false police report can be immediately fired under new regulations that will go into effect next week.   Superintendent Ronal Serpas (pic with Mayor Landrieu in background) announced the changes, along with several other revisions to the rules governing officer behavior, at a news conference outlining his initial steps to remake the New Orleans Police Department.

Share 'If you lie, you die,' Serpas said, noting that the previous policy would allow lesser reprimands for officers who were untruthful a couple times. 'If you tell this police department a lie about anything, you will be terminated. That has never happened here before.'

In a week when the alleged wrongdoing five years ago of New Orleans police after Hurricane Katrina will be featured prominently in the news, both Serpas and Mayor Mitch Landrieu underscored that they are trying to make improvements that will restore citizen confidence in the officers they interact with every day. There are currently nine ongoing federal probes into the NOPD, many of them stemming from the post-Katrina period.

'In short order, we have made progress on the structure and the culture of the NOPD,' said Landrieu at a news conference also attended by Orleans Parish District Attorney Leon Cannizzaro and NOPD deputy chiefs Arlinda Westbrook and Marlon Defillo.

Serpas said even an internal change like the revision to what is known in the NOPD as the 'truthfulness' policy will end up being felt by New Orleanians. 'When that resonates through our community, it will be easier for our community to accept the word of a police officer,' he said. [. . . ]

The NOPD has already asked various components of the Justice Department for specific help, according to Serpas' document, including reviews of the homicide unit, as well as providing expert help with domestic violence and sexual assault investigations. Following news reports about the prevalence of sexual assault complaints that are not classified as crimes, the NOPD this month asked the Louisiana Commission on Law Enforcement to conduct an audit of the sex crimes division, according to the report. [ . . . ]
Along with the changes to the truthfulness policy, the department will also change the report writing rules, allowing the firing of any officer who files a 'false or inaccurate oral or written report.' At issue in three ongoing cases in federal court against NOPD officers is the accusation that police wrote false information in reports, which prosecutors assert was done to cover-up improper police actions.  Another change, which like the others announced by Serpas will be put into place Sept. 1, is the requirement that all officers report to a supervisor any misconduct they observe by any government employee. If they fail to do so, they can be subject to the same level of discipline as the person who committed the offense. Officers will also be required to cooperate with investigations and not withhold information.

Noting that this week marks the anniversary of Hurricane Katrina, Serpas made direct reference to some of the allegations against police after Katrina, especially the guilty pleas of five former officers in the Danziger Bridge case. Those officers have admitted to participating in a wide-ranging cover-up of a shooting near the bridge in which four people were seriously wounded and two men died.

These actions have overshadowed the great work that many officers performed during the storm, said Serpas.  'The self behavior of people's admitted comments has ripped from the history books the tremendous bravery of so many men and women in this department,'  he said. 'Rightfully so, the insult committed on this community by so many officers is something we can never forget and will never forget.'"
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This was, . . . is, a very pathological law enforcement agency.  It will take years to uproot all the bad shoots, but this policy is a good beginning. It's almost unbelievable that the police superintendent felt it necessary to publicly announce this policy.

DEA Looking for Ebonics Translators

A report at AZCentral.com claims the Drug Enforcement Administration is looking for Ebonics translators for the purpose of translating secretly recorded conversations. 

How does one become a certified Ebonics translator?  Who does this certification?  By the way, at the link you will find an Ebonic's translator.