Monthly Archives: December 2009

Tasered For A Seatbelt Violation: Excessive Force?

A Sunday morning traffic stop that ended with a tasering – I would rather have a cup of coffee for breakfast. But that’s just how 21-year-old Carl Bryan started his day early one summer morning in 2005. And according to the Ninth Circuit Court of Appeals, the Coronado police officer who zapped the young man with a Taser during that stop – for a seatbelt infraction – is not entitled to qualified immunity.

A three-judge panel of the federal appeals court ruled Monday that the intermediate level of force used by Officer Brian McPherson on Carl Bryan was excessive under the circumstances. The ruling upholds a decision by San Diego-based U.S. District Court Judge Larry Burns that allows Bryan to pursue damages against McPherson at trial under 42 U.S.C. § 1983.

Judge Kim McLane Wardlaw penned the decision so eloquently here are her version of the facts:

“Carl Bryan’s California Sunday was off to a bad start. The twenty-one year old, having stayed the night with his younger brother and some cousins in Camarillo, which is in Ventura County, planned to drive his brother back to his parents’ home in Coronado, which is in San Diego County. However, Bryan’s cousin’s girlfriend had accidently taken Bryan’s keys to Los Angeles the previous day. Wearing the t-shirt and boxer shorts in which he had slept, Bryan rose early, traveled east with his cousins to Los Angeles, picked up his keys and returned to Camarillo to get his car and brother. He then began driving south towards his parents’ home. While traveling on the 405 highway, Bryan and his brother were stopped by a California Highway Patrolman who issued Bryan a speeding ticket. This upset him greatly. He began crying and moping, ultimately removing his t-shirt to wipe his face. Continuing south without further incident, the two finally crossed the Coronado Bridge at about seven-thirty in the morning.

At that point, an already bad morning for Bryan took a turn for the worse. Bryan was stopped at an intersection when Officer McPherson, who was stationed there to enforce seatbelt regulations, stepped in front of his car and signaled to Bryan that he was not to proceed. Bryan immediately realized that he had mistakenly failed to buckle his seatbelt after his earlier encounter with the police. Officer McPherson approached the passenger window and asked Bryan whether he knew why he had been stopped. Bryan, knowing full well why and becoming increasingly angry at himself, simply stared straight ahead. Officer McPherson requested that Bryan turn down his radio and pull over to the curb. Bryan complied with both requests, but as he pulled his car to the curb, angry with himself over the prospects of another citation, he hit his steering wheel and yelled expletives to himself. Having pulled his car over and placed it in park, Bryan stepped out of his car.

There is no dispute that Bryan was agitated, standing outside his car, yelling gibberish and hitting his thighs, clad only in his boxer shorts and tennis shoes. It is also undisputed that Bryan did not verbally threaten Officer McPherson and, according to Officer McPherson, was standing twenty to twenty-five feet away and not attempting to flee. Officer McPherson testified that he told Bryan to remain in the car, while Bryan testified that he did not hear Officer McPherson tell him to do so. The one material dispute concerns whether Bryan made any movement toward the officer. Officer McPherson testified that Bryan took “one step” toward him, but Bryan says he did not take any step, and the physical evidence indicates that Bryan was actually facing away from Officer McPherson. Without giving any warning, Officer McPherson shot Bryan with his taser gun. One of the taser probes embedded in the side of Bryan’s upper left arm. The electrical current immobilized him whereupon he fell face first into the ground, fracturing four teeth and suffering facial contusions. Bryan’s morning ended with his arrest and yet another drive—this time by ambulance and to a hospital for treatment.”

Bryn filed a federal lawsuit against Officer McPherson, the Coronado Police Department, its police chief and the city of Coronado, claiming excessive force and intentional infliction of emotional distress. The district court dismissed the city of Coronado and the police department, but found that McPherson was not entitled to qualified immunity. The district court further concluded that a reasonable jury could find that Bryan “presented no immediate danger to (McPherson) and no use of force was necessary.”

Judge Wardlaw said it should have been apparent that Bryan was unarmed because he was dressed only in boxer shorts and tennis shoes and never threatened the officer. And from a common sense perspective, it seems excessive to taser a guy standing in his boxers 25 feet away, unarmed, and not trying to flee or attack.

Lawyer Denied $1.2 Million Fee For Obnoxious Conduct

The man who was dubbed New York’s most obnoxious lawyer (what a distinction!) by the Village Voice has been denied $1.2 million in contingency fees for his disregard to the judicial system and flight from New York to avoid arrest on contempt charges. No other lawyer in New York had been ousted for “obstructive and offensive behavior which did not involve fraud or deception” – until Kenneth Heller. According to one adversary, Heller was disbarred for basically “being an asshole,” which “takes some doing.” From his actions in a wrongful death suit (which was unrelated to his disbarment), you can easily see why he was denied the $1.2 million fee.

Quoting an opinion of the appeals court in Manhattan that disbarred Kenneth Heller in 2004, Southern District of New York bankruptcy Judge Stuart M. Bernstein wrote that Heller’s refusal to turn over files in a matter that was eventually settled for $3.7 million was “symptomatic” of a record of “utter contempt for the judicial system.” Bernstein’s ruling in In re Ruby G. Emanuel, denied Heller any share in the $1.2 million the judge had awarded to the law firm of Jacoby & Meyers, which took over from Heller the wrongful death case of James Emanuel, a worker who was fatally injured in a 1992 accident at the Brooklyn Navy Yard.

In that case, Ruby Emanuel, James Emanuel’s widow, had originally retained Heller to represent her in a wrongful death action stemming from her husband’s untimely death shortly before filing for bankruptcy in 1997. The jury returned a verdict of $25 million in 1999, but Justice Leland DeGrasse reduced the award to $7.6 million. However, in 2004 the Appellate Division reversed the Manhattan Supreme Court and ordered a new trial because according to Judge Bernstein, Heller had proceeded on a “faulty theory” in the case.

Then, about a month after the reversal, the 1st Department disbarred Heller in an unrelated case for his history of unruly behavior:

“In light of the cumulative evidence of respondent’s 24-year history of sanctions, his perverse and persistent refusal to accept adverse rulings, reflective of an utter contempt for the judicial system, and his consistent, reprehensible, unprofessional behavior, which has included screaming at, threatening and disparaging judges, adversaries and experts, intentionally defying court rulings, and disrupting and thwarting proper legal process through both physical and verbal aggression, we are of the opinion that the appropriate sanction here is disbarment.”

Following Heller’s disbarment, Ms. Emmanuel began looking for a new lawyer to represent her in the mattter, eventually settling on Jacoby & Meyers to handle the retrial in state court. When the new law firm asked Heller to forward his files in the matter, he refused, even though as Judge Bernstein noted, “terminated lawyers normally send their files promptly to new counsel to be sure that the interests of the client are protected.” Indeed, this is mandated by many state ethics codes.

Through countless requests and 2 ½ years, Heller never budged and only offered various excuses as to what had happened to the missing client files – lost in a house upstate, damaged by a flood, discarded by workers – as the case was passed among five judges throughout New York. Jacoby & Meyers finally obtained a Contempt Order from Justice Howard R. Silver in the Bronx, fining Heller $10,000 and ordering him to serve 30 days in jail for flouting an order to turn over the files.

The 80 year-old Heller was eventually arrested in February 2007 and served a night in jail before an appellate judge lifted the sanction. However, the punishment was reinstated two months later and the contempt order and punishment affirmed by the 1st Department. When Heller refused to turn himself in he became a fugitive. As law.com reports, at approximately the same time, a half-dozen deputies, pursuant to a warrant issued by Justice Silver, broke into Heller’s office in search of the files, but came up with nothing.

Then in July Judge Bernstein held a hearing in to assess Heller’s claim to a portion of the $1.2 million fee. Heller requested permission to testify via a video hookup because he was afraid of being arrested if he came into New York to testify. Bernstein denied the request because Heller had fled the state to “avoid punishment meted out by a state trial court judge.” Finally, in his decision last week, Bernstein found that Heller had obstructed Jacoby & Meyer’s “attempt to retry the case he lost,” and that his refusal to turn over the client files resulted in “prejudice to plaintiff’s right to a new trial in this action for maritime wrongful death.”

Nonetheless, Bernstein concluded, the new firm had done “the best it could” in securing the $3.7 million settlement. Michael S. Feldman, Jacoby & Meyer’s lead attorney on the case, stated that they only had the record on appeal to work with in negotiating a settlement. While Heller’s files consisted of 43 boxes of material, the record on appeal filled only 2 boxes, Feldman said. And unfortunately the defendant’s records in the underlying wrongful death suit had been destroyed in the attack on the World Trade Center on 9/11 where its law firm, Hill Betts & Nash, had its offices, Feldman added. “We had to proceed without videos and photographs of Mr. Emanuel” who was paralyzed from the neck down and eventually died, Feldman also stated. Ms. Emanual was also denied access to witness notes and the full transcripts of depositions due to Heller’s refusal to turn over his files.

Richard Tenenbaum, a lawyer who represented Heller during a one-day hearing in bankruptcy court last summer, described the 80 year-old Heller as a former seaman who is “a tough old bird,” but “a master of maritime law.” One Bronx jurist has described him as a “pre-eminent maritime attorney,” and Heller estimates that over his career he has obtained verdicts totaling more than $70 million.

Google Dealt Major Setback by French Court

A French court ruled today that Google’s expansion into digital books infringed France’s copyright laws when they digitized books and put extracts online without authorization. The court ordered Google to pay over 300,000 Euros ($430,000) in damages and interest to French publisher La Martiniere which brought the case on behalf of a group of French publishers and slapped the Internet search leader with a 10,000-a-day (euros) fine until it removed extracts of some French books from its online database.

The Paris court ruled against Google after the French publishing group argued that the industry was being exploited byGoogle’s Book Search program, started in 2005 in an attempt to put the world’s literature online. This French ruling deals yet another major setback to Google’s controversial book project, and erects yet another legal barrier that may prevent Google from realizing its 5-year-old goal of scanning all the world’s books into a digital library that anyone around the globe with an Internet connection can access.

Google is not only facing problems abroad, but also here at home. In the U.S., a potential settlement that would give Google the digital rights to millions of books is under fire. Regulators warned a federal judge in New York that the potential settlement would probably thwart competition in the budding electronic book market and also compromise copyrights. Google is trying to address the critics with a revised settlement that is still under court review. Officials in Germany and France have also have raised objections about that settlement overstepping its bounds.

In the French case, La Martinière first filed suit in 2006 claiming that its publishing houses suffered damages due to Google’s actions. The publisher’s argument was simple – scanning books was an act of reproduction that Google should pay for – and they demanded that Google be fined millions of Euros for their actions. In essence, they claimed that Google lets users browse the content without paying for it and then reaps revenue from advertisers without adequately compensating the creators and original publishers of the works.

Google on the other hand felt that they had complied with French copyright law and planned to appeal the decision.According to Philippe Colombet, “We believe that displaying a limited number of short extracts from books complies with copyright legislation both in France and the U.S. — and improves access to books.” Colombet is responsible for Google’s books partnership in France, and he wasn’t sure whether the company would immediately remove the excerpts or pay the fine since Google’s lawyers were still examining the ruling. He also said there would be no impact on Google’s settlement with publishers and authors in the United States, an agreement that would allow the company the right to digitize, catalog and sell millions of books online that are under copyright protection.

Over the last five years Google has scanned 10 million books worldwide through partnerships with libraries in its push to put the world’s literature online. Over half of the books are in languages other than English and 2 million books in Google’s library no longer are in copyright.

Facebook Slapped With FTC Complaint

It seems like all the buzz over the changes made to Facebook’s privacy policy just won’t die down. Unfortunately for Facbeook, a group of ten privacy and consumer groups announced today that they have filed a complaint with the FTC, alleging that the changes to the privacy policy violates federal law. The groups are “urging the FTC ‘to open an investigation into the recent changes made by Facebook … and to require Facebook to restore privacy safeguards.’”

The complaint centers around Facebook’s new transition tool which the groups claim encourage users to open up their profile so that more data is publicly available. “Facebook is transforming the world’s ability to control its information online by empowering more than 350 million people to personalize the audience for each piece of content they share,” said Facebook communications VP Elliot Schrage, in a statement. Last week the social network site began informing its millions of users that it would be supplying better control of their privacy settings – but would also provide default settings that could allow anyone on the Internet to see their personal information.

However, Marc Rotenberg executive director of the Electronic Privacy Information Center (EPIC) feels differently, “The company should not be allowed to turn down the privacy dial on so many American consumers.” Rotenberg said the changes will allow too much user information to be made available to the public and to third-party application developers – that then go on to create games, contests, and other programs for Facebook. Some say the move to allow users to share more information to a broader audience mirrors the structure of Twitter, the increasingly popular microblogging service. The changes in the privacy and increased sharing of customer information could also theoretically could create more opportunities for online marketers.

However, Facebook’s privacy changes have elicited widespread criticism. EPIC is joined in its complaint by groups including the American Library Association, the Center for Digital Democracy and the U.S. Bill of Rights Foundation. Facebook provided this statement to the website Allfacebook.com:

“We’ve had productive discussions with dozens of organizations around the world about the recent changes and we’re disappointed that EPIC has chosen to share their concerns with the FTC while refusing to talk to us about them.

Facebook’s plan to provide users control over their privacy and how they share content is unprecedented in the Internet age. We have gone to great lengths to inform users about our platform changes, beginning with our July announcement; founder Mark Zuckerberg’s open letter to our 350 million users; our robust press and analyst outreach; the notice-and-comment framework for our new privacy policy; and simple customization tools for users.

We’re pleased that so many users have already gone through the process of reviewing and updating their privacy settings and are impressed that so many have chosen to customize their settings, demonstrating the effectiveness of Facebook’s user empowerment and transparency efforts. Of course, the new tools offer users the opportunity to decide on privacy with every photo, link or status update they wish to post, so the process of personalizing privacy on Facebook will continue.

We discussed the privacy program with many regulators, including the FTC, prior to launch and expect to continue to work with them in the future.”

Earlier this year Facebook was valued by its investors at over $10 billion. The closely held company’s backers include Russian investment firm Digital Sky Technologies, Microsoft and hedge-fund manager Peter Thiel.

A copy of the complaint can be found here.

Supreme Court to Weigh in on Reasonable Expectation of Privacy in Email & Text

Today, the Supreme Court announced that it will rule for the first time on whether government employees have a reasonable expectation of privacy when they send electronic messages on digital devices supplied by their governmental employers. At stake are employer’s and employee’s privacy rights in our new digital age and how far a government employer may go to monitor the private communications of its workers if they believe that the use of such equipment is being abused. The Court will hear oral arguments in the spring.

Last year, the 9th Circuit Court of Appeals broke new ground when they ruled that the police chief’s inspection violated the officers’ rights under the 4th Amendment because the police officers had a “reasonable expectation of privacy” in their text messages, despite the fact that the phones were supplied by the police department. The 9th Circuit also found the wireless company violated the federal Electronic Communications Privacy Act when it turned over the messages without the consent of Quon.

The 9th Circuit’s ruling was the first from a federal appeals court to hold that the Constitution protected the privacy rights of workers who were using electronic devices supplied by their employer. Until the decision, most judges had said employers who provide computers, cellphones or texting devices for their workers were entitled to control how those devices were used. Traditionally, courts have stated that private communications – even when delivered or transmitted through a public portal – are generally protected from “unreasonable search and seizure.” However, this has usually involved handwritten letters sent in sealed envelopes through the U.S. Postal Service, not text messages and emails transmitted through ISPs (Internet Service Providers) on employer owned phones.

The justices agreed to hear Quon’s case after his text messages – many of which were sexually explicit – were read by the police chief. Most employers, including the city of Ontario, have a formal policy stating that employees have no privacy rights when sending e-mails or other messages. Further, the city even told employees it “reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice.” And the department’s “Computer Usage, Internet and E-mail Policy” only gives workers limited use of government owned devices for personal communications. Quon even signed a statement acknowledging that “use of these tools for personal benefit is a significant violation of City of Ontario Policy” and that “users should have no expectation of privacy or confidentiality when using these resources.”

The problems for Quon began because he went over the texting limit supplied by the phone supplier. When his police chief asked to see the messages to determine whether the devices were being used for mostly personal messaging, Arch Wireless Company (which provided the texting service) turned over transcripts to the chief. It was only in reading the transcripts voluntarily provided by Arch Wireless from its electronic archives that the racy messages to his wife, his girlfriend and a fellow officer were revealed. This prompted an internal department investigation and Quon was eventually fired after more evidence was uncovered.

A one month review found that Quon had sent and received 456 personal messages while on duty – an average of 28 per shift – and only three were deemed work-related. The federal court judge had characterized sexually explicit in nature, and not “light personal communications,” as defined in the policy as generally acceptable. The 9th Circuit ruled for Quon because “the [police] department opted to review the contents of all the messages, work-related and personal, without the consent of Quon, we held that the search was excessively intrusive in light of the noninvestigatory object of the search.”

It is important to remember that this case deals with government employers and employees, and legal and technology experts are divided over its application in the private sector, where employees may enjoy less constitutional protection.

The case is USA Mobility Wireless Inc. v. Quon (08-1332). You can read more here.

Put Out the Fire



“That’s the way many of us are. We’re very good lawyers. It’s just that we’re very bad businesspeople.”

So opens Put Out the Fire an interesting article by Jim McElhaney on the ABA Journal website, where he aptly points out that many attorneys are simply bad at business. In fact, I have often mulled the fact that there has always seemed to be a negative connotation to running a law practice like a business. As professionals there is a sentiment that we must adhere to higher standards, and stay away from petty activities like marketing. After all, we have only been allowed to advertise our services for a little over thirty years with the Bates v. Arizona decision in 1977.

However, in order to run a successful practice you must wear your business hat. This isn’t easy, as few of us come to law school with an M.B.A. or any type of business background. Running a law practice like a business means staying on top of client development and creating a positive work environment in addition to making sound business choices. And I have heard talk the soon even the billable hour may fall – so we are making some progress.

In Put Out the Fire the subtitle to the article is “Keep your case files up to date if you don’t want to get burned,” McElhaney examines treating client files from a business context – owning your files instead of letting them own you. It is a great article, especially considering that a huge part of litigation is a battle of information and ensuing document management. In the future, as we become more digital with more offices going paperless and the advent of technology like cloud computing, managing documents and client files will become a less burdensome task.

WebJuris on YouTube


I was delighted earlier tonight when I went on YouTube to take a look at a couple of our MicroSeminars and I found a ton of video clips from Jose Rosa of WebJuris. I had the pleasure of presenting with Jose in our 1 hour CLE program entitled Due Diligence When Selecting a Web Development Firm.


We often debate the role that social media and sites like YouTube will continue to play in the legal industry. It’s great to see Jose making effective use of some of the content that we filmed together. And there is some great practical content for anybody that just broke off into their own practice and needs a new website, or even it your website has been up for 7 years and it might be time to improve your online image.

Facebooking Florida Judges Beware Who You Friend!

While a judge in Florida may post comments and other material on the pages of a social networking site like Facebook, a judge may not “friend” lawyers who may appear before them and may not permit such lawyers to add the judge as their “friend.” This from the latest Florida Judicial Ethics Advisory Committee Opinion 2009-20 issued on November 17. I wonder how many Florida judges will quit the bench over this one?

State Ethics Opinions are hypothetical questions posed to an ethics committee by a member of the state bar. In the Opinion, the Florida Judicial Ethics Advisory Committee concluded that “friending” other lawyers would violate Florida Ethics Canon 2B. Canon 2B states:


“A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.”

To the Florida Committee, listing lawyers who may appear before the judge as “friends” on a judge’s Facebook page reasonably conveys that these lawyer “friends” are in a special position to influence the judge. Further, the Florida Committee felt that a judge’s participation in a social networking site must also conform to the limitations imposed by Canon 5A, which provides:

Extrajudicial Activities in General. A judge shall conduct all of the judge’s extra-judicial activities so that they do not:

  • Cast reasonable doubt on the judge’s capacity to act impartially as a judge
  • Undermine the judge’s independence, integrity, or impartiality
  • Demean the judicial office
  • Interfere with the proper performance of judicial duties
  • Lead to frequent disqualification of the judge
  • Appear to a reasonable person to be coercive

In this instance, I could only imagine the quandary that some local judge encountered when he realized that a lawyer that practiced in his or her courtroom had “friended” them on their MySpace of Facebook pages. I have already seen this one in an employment law context with bosses and employee. It’s kind of like when your Aunt friends you – you want to say no, but you don’t want to be rude. To me, this is just another sign of the electronic times that we practice in, and how far technology has come is such a small amount of time.

There is a great article here from the Wall Street Journal and another funny piece on “friending” here.

ACLU Loses 25% of Its Yearly Donations

The American Civil Liberties Union lost 25% of its yearly donations because a major donor cut off $19 million in annual donations due to economic difficulties. David Gelbaum, a wealthy conservationist, said he was discounting the donations that had previously made him the group’s largest anonymous donor. A native of Minnesota who now resides in California, Gelbaum made his fortune working for hedge funds, where he utilized formulas to pick stocks and bonds. He now serves as co-trustee for a investment firm called Quercus Trust, based in Newport Beach, California.

In a statement Gelbaum explained, “For a number of years, your organization has received very substantial charitable contributions from me … my investments in alternative, clean energy companies have placed me in a highly illiquid position as a result of the general credit crisis in the American and world financial systems.”

Unfortunately, the ACLU won’t be the only one to suffer. Gelbaum also announced he was halting nearly $12 million in yearly gifts to the Sierra Club Foundation and about $50 million a year he donates to an organization that helps soldiers injured in Iraq and Afghanistan. In all, Gelbaum has given a total of $389 million to the groups from since 2005.

ACLU Executive Director Anthony D. Romero called Gelbaum an American hero, “an unassuming man with a spectacularly generous spirit.” In a statement e-mailed to the AP on Wednesday, the group stated that they are attempting to fill the revenue gap with funds from other donors, and over the past two months has raised a $23 million, to be paid over the next three years. However, the organization will still need to explore budget reductions and possibly tapping reserved funds.

Gelbaum says he hopes others will step forward to take his place and replace the lost donations.

MicroSeminar on YouTube: Legal Ethics of E-mail

Attorney Credits has started a new feature in an attempt to reach out to attorneys online – our new MicroSeminars on YouTube. Our MicroSeminars will detail specific issues that plague attorneys that can be avoided with just a little forethought. Our second MicroSeminar on the Legal Ethics of Email details the ethical areas that attorneys must be concerned with when sending and receiving email.

The Legal Ethics of Email details the national and state regulation of electronic mail and attorneys, the reasonable expectation of privacy in the new communication medium and attendant ethical responsibilities. Namely, as attorneys we are taught to protect our client’s confidences to the fullest extent possible – and even in the face of impending bodily harm and death. Unfortunately, in the digital age where technology has facilitated the free flow of information, protecting client confidences is a much more difficult task. Especially when confidential information can get into the wrong hands simply by checking the wrong address box when you send an email.

The MicroSeminar covers four main areas that attorneys need to be concerned with when sending and receiving email – hacking, inadvertent disclosure, screen shots, and metadata.