Category: Torts

Why #bluelives matter is the wrong phrase and the wrong cause (Part 1 of 4)

“I knew he had crossed the line to where I could have used deadly force, but I just felt that, you know, just because you can take a life, it doesn’t mean you should.”–  New Richmond, Ohio Police Officer Jesse Kidder

Recently, we have seen an uptick in the reporting of deaths and abuse by unarmed individuals, usually black men, at the hands of law enforcement officials or law enforcement wanna-bes. And the responses have become pretty routine. From some circles come the cries “We told you this was happening” followed by “No justice. No Peace”. Then from other circles come the cries of “He was asking for it”. Back and forth it goes. But, there is one series of responses that I find both fascinating and troubling. Silence. And it’s a silence not based upon lack of thought but based upon the premise that the life of a law enforcement officer is more valuable than the life of anyone else no matter what. And that is a recipe for disaster.

THE BACKGROUND

Before some start shouting that I am just “anti-cop” we need to remember a few facts. I come from a family that has cops in it, including those harmed while doing the job. I lived with a corrections officer for over a year. I was a prosecutor in two different states where I worked closely with law enforcement personnel and gained a reputation as being an aggressive prosecutor protective of law enforcement. I also was the primary attorney defending law enforcement personnel against accusations of violating the civil rights of citizens. I recall a childhood friend, Roy Wade, one of the nicest and most giving men you could ever hope to meet, becoming a Long Beach police officer and being shot and seriously injured very early in his career during a routine matter. So, I am very familiar with that world. This is not about being anti-cop. But it is about questioning how far being “pro-cop” should go.

THE MEASURE

With recent riots or uprisings or whichever phrase suits your palate, the same responses come back over and over. There are people condemning what they call the social failings of the inner city (code for black) communities. Of course, if these failings exist, they were there long before the riots, right? If there is a “disrespect for law and order” it was there long before the riots, right? And yet, these riots do not happen every day. In other words, the same ingredients and factors exist every day yet nothing happens. So what changes? The presence of “thugs”? Again, if those “thugs” and thugs (real thugs do exist. Including those who are often idolize and emulate the Sopranos and Sons of Anarchy), then why are there no daily riots, weekly, monthly or annual riots? What changed?

Someone unarmed is killed by a governmental operative under color of authority of law. That is what happened. These protests do not start when the police kill armed suspects. Almost everybody understands those killings.  It’s the unarmed ones that raise questions.

It’s the man shot when he made no threatening statements or movements and had his wallet in his hand.

It’s the mentally ill man whose crime was knocking on several doors and not complying with the officer’s commands. He wasn’t carrying a weapon. Considering he was naked, he was not carrying much of anything.

It is the guy who reached for an officer’s gun (never a wise move at all), did not get it, was tased and then shot by four officers. Again, he was unarmed at the time he was shot.

It’s the unarmed people shot in the back while running AWAY from the police.

It’s the guy shot for throwing rocks. For heaven’s sakes, the Israeli army faced that for years and showed greater restraint.

It’s the guy shot in the back while laying face down.

It’s the guy in his pajamas, shot while holding a spoon.

It’s the 12-year-old with toy gun who was shot immediately when the police arrived. No discussion, no warnings, just immediately shot and in direct contradiction to the officer’s accounting of what happened.

It’s the unarmed, handcuffed individuals who mysteriously are able to take guns and shoot themselves in the back of the head.

It is the man, shopping in an Ohio Wal-Mart, holding a BB gun he had picked up off a store shelf. Did I mention that Ohio is an “open carry” state? So, even if it had been a real gun, there was no crime or threat of a crime. Again, the police shot him immediately. Though, as you may have guessed, that is not what they wrote in their reports.

It’s the guy shot while running AWAY from the police.

It’s the person who dies while in police custody under questionable circumstances.

It’s the man shot by the cop who can’t tell the difference between his taser and his firearm.

And this happens and will happen over and over again because we believe that its more important for a police officer to come home no matter what than it is for someone else to come home alive. And when you have friends and family that are cops, it is an easy mindset to have. It’s an understandable mindset to have. But on a societal level it is a dangerous one. Because you have decided that even when an officer is wrong, it is ok. In the above examples, an officer could be right or could be wrong, but to many people it does not matter. All that matters is that the officer survived and protected “society”.

And that is not just a current trend. Historically, the poor, the disenfranchised, the non-white have always mattered less. In both law and tradition, those lives mattered less to society. Just another dead nigger. Just another dead spic. Or the popular NHI.

What’s “NHI”? It means “No humans involved” It’s a phrase oft used by police, judges, and yes prosecutors (full disclosure, I am quite sure I said it myself) in reference to a crime where both victim and suspect are less than desirable. Usually members of the underclass. Often junkies or homeless. You know, people, who still have a right to live to avail themselves of the justice system.

Historically, crimes against those people, especially when committed by the police, did not matter. They were swept under the rug. No fanfare, no investigations, just turning and burning. Few resources allocated. And that history is a long one. Certainly some places have responded better than others, but it still happens. Protests form designed to get the powers that be to care. To get them to act. And while the acts may not always end up in justice being served, the outcomes are always easier to accept when you feel that those in position of authority and society as a whole gave enough of a damn to take a second look.

WHERE BLM IS WRONG
So when somone points out that yes, the lives of people in their communities do matter we inevitably now get the postings on social media of “#bluelivesmatter” and the screaming of how police lives matter, as if this is somehow a new and radical thought. This would be understandable except for one glaring problem?

At what time in our history have we ever acted like police lives don’t matter? I sure can not think of one.

When an officer is so much as injured, other officers respond swiftly and often with brutal and sometimes deadly force. And very little if any investigation is ever given to those circumstances. Because we have held to the idea that if you hurt a cop, you deserve any retribution that comes next.

When an officer is killed on duty, even when the death itself is not exactly “heroic”, we praise the officer as a hero. One of our finest and a host of other platitudes. We offer a funeral with full honors, often attended by other officers from other departments in a sign of solidarity. If a suspect in the killing is at large they find the full extent of the law enforcement resources pointed right at them. And if a suspect is caught, no (legal) stone goes unturned in trying to convict the accused. In some cases, that effort has gone so far as to intentionally hide evidence from the defense in more than one documented case. This may lead some reading to say, “well there are always some bad apples” while ignoring that you can throw out bad apples. For decades, throwing out “bad” cops has been much harder to do.

There are statues and memorials to honor the fallen officers in almost every county in the nation. I distinctly recall the annual ceremony held in Shasta County in front of the courthouse honoring the dead. And though it was several years since the last Shasta Peace Officer was killed in the line of duty, seeing people you work with every day, knowing that any one of them could be snuffed out in a hairs’ breath is sobering and disconcerting. So, we understand the fear and concern for officer safety. (To my knowledge, the Fire Departments in Shasta County had no such ceremony. If so, it was not nearly as publicized or well attended).

And it is clear that we as a society think those lives matter. We have enhanced penalties for doing anything to an officer, one of the few professions accorded that protection. And while officers enter a profession they know is potentially dangerous not everyone who comes into contact with the police is making the same educated decision. In too many cases, they are dead before they can make any decision. So, when people hear of a police officer being killed and respond with that thin blue line, that is a normal moment of recognition. But, when they add “Blue lives matter” it is a co-opting of another movement and it tells those members of that community, “blue lives matter MORE”. One community argues that their lives are worth recognition, consideration and respect and we should not be so eager to accept that killing them means nothing. The other says they should never be questioned and no matter the circumstances their lives mean more. Does everyone who say that mean to give that impression? No. But, it is there and they don’t care that it is.

In this series, we will take a look at how we got here. How we created an environment in which we risked making the police unaccountable and in turn made the job even more dangerous. How we did it with law, tradition, training and the police subculture. We will see how apathy from members of the public who know darn well they are never going to be on the receiving end of police abuse and misconduct (and it is not because they always follow the law) , it festered. We will see how new technologies and social movements have changed the conversation and not always for the better. We will also contemplate where we go from here because we certainly need to go somewhere from here.

 

Woman sues VH1 for showing her Naked on…a dating show where people get naked.

In yet another example of why we think people are idiots, a woman who appeared on the VH1 reality series, Dating Naked, filed a $10 million lawsuit against VH1 and its corporate parents, after the show aired a scene in which she was naked on Dating Naked. Now of course you might be thinking, “Hey, what did she expect?”, in which case, you do not know much about the “bait and switch” of television and you underestimate the intelligence of people who want to be on TV so badly, they agree  to be seen naked by the multitudes or at least a stranger and film crew.

According to the plaintiff, Jessie Nizewitz, an aired episode featured a scene where she and her date wrestled naked on a beach and there was a short non-digitized view of her non-bedazzled va-jay-jay. For some reason, she believed that wrestling naked in front of cameras was not going  a problem because show’s producers promised her that all nudity would be censored or shown in a “dignified way”. According to the complaint the producers agreed to broadcast only her blurred vagina and anus on all showings. If that is so, we may have a breach of contract suit, though the very brief shot (which I have not seen) may indicate an unintentional lack of editing. Or it could have been very intentional. Broken promises are nothing new in Hollywood.

But where this gets really interesting is that our plaintiff, a 28 year old model who agreed to get naked with a stranger for a TV show, is claiming mental anguish, humiliation and embarrassment. She argues that once the show aired she immediately received text messages from friends and family. One message read, “So your money shot is on cable TV”. This, of course, is horrible. It means a 28 year old woman has a friend or family member who does not know what a money shot is.

Besides that tragic realization, plaintiff also claims that she was further harassed on social media. Apparently, people who watched the show to see naked people, told one of those naked people, that they saw her naked. According to the complaint, the incident was so shocking to the gentleman she was dating that he never called her back once the show aired. This is, of course a triple whammy as she describes the man as “employed, Jewish, in his 30s and that’s pretty much ideal”. Wherever will she find another employed, Jewish man in his 30s who is ok with his new leading lady being naked and wrestling on the beach with some other guy, but won’t be traumatized by seeing her vagina or anus for a split second on TV? I do not know, ladies and gentlemen, and it is too distressing to contemplate.

By the way, did I mention plaintiff is a model? Not to disparage models, but nobody becomes a model because they dislike being looked at. (Or do they? Models feel free to contact me and let me know. Do NOT send pictures, I will take your word for it). And here we have someone who decided to get more exposure and is now allegedly distressed that she got a few inches more than she wanted. This may actually become an interesting case because we could have liability for the breach of contract with very low damages and no liability on the mental anguish torts. At first blush, I like the odds for the Defense.

But, it is early and a long way to go before we get to the naked truth.

Read about it here

WWE does an incredible segment! And it makes no legal sense at all.

I finally had the chance to see the much talked about segment of the most recent episode of Monday Night Raw, featuring Stephanie McMahon and Brie Bella. It was an incredible performance by both women. It is rare to see two women close out an episode of any professional program and these two made the most of it. In terms of entertainment, it was an A+ segment. Alas, it was a horrible lesson in the law. Continue reading “WWE does an incredible segment! And it makes no legal sense at all.”

BREAKING NEWS: Jesse Ventura wins defamation lawsuit against “The American Sniper”

In what can be called a battle of SEAL v. SEAL, former Minnesota Governor, Jesse Ventura was victorious in his lawsuit today against the estate of Chris Kyle. Kyle, famed as the “Most Lethal Sniper in US Military History”, wrote a book with that moniker as the title. In it, he made several claims about a thinly disguised Ventura, then later admitted Ventura was exactly whom he was writing about.

The interesting thing about this case is that defamation is hard to prove when involving public figures, especially one with a complicated history like Ventura’s. The 8-2 verdict indicates that at least two people took Ventura’s colorful history in account before reaching a decision.

According to the story, all Ventura wanted from Kyle was an apology and an admission that several statements were false. With Kyle’s death he is not likely to get either. And if he does, then Kyle was an even bigger badass than his known history has already revealed.

http://www.nytimes.com/2014/07/30/us/jesse-ventura-chris-kyle-navy-seal-book-lawsuit.html?_r=0

Torts: Ted, Captain Redneck and Damages (Part 2 of 2)

It is another stiff neck and stiff back morning. While skating in a roller derby game last week I wound up going THROUGH a wooden rail. So, thanks to that and some rather physical pack play, I had what I call the “Roger Murtaugh” moment. Named after the police detective played by Danny Glover in the Lethal Weapon series who would intone at various points, “I’m getting too old for this sh**”.

Fortunately, I am not too old to write. So let us return to the topic at hand. As you will recall from our first post in this series, “Captain Redneck” Dick Murdock attacked Ted Dibiase before Dibiase’s NWA World Title match against Ric Flair. The attack left Dibiase bloody and weakened and he eventually lost his match against Flair. Murdock then attacked Dibiase after the match, putting him out of action for almost two months. (Note: Well, out of action in this country. He seemed fine in Japan).  So our question is, what damages could Ted Dibiase seek from Murdock based on the torts committed?

COMPENSATORY DAMAGES

Compensatory damages are the actual damages suffered by a party at the hands of the individual or entity who caused the harm. In this case, Dibiase has a claim against Murdock for his physical injuries. For Murdock this is where his second attack, concluding with a brainbuster on the concrete floor, can become costly. They took Dibiase away for medical care. His medical bills are obviously a concern and he should certainly have sought compensation from Murdock for his injuries. Continue reading “Torts: Ted, Captain Redneck and Damages (Part 2 of 2)”

Torts, Ted, and Captain Redneck

Tort(from Latin torquere, to twist, tortus, twisted, wrestled aside)- A private or Civil wrong or injury.- Black’s Law Dictionary

As you can tell from the definition above, pro wrestling is full of torts. From the almost constant presence of battery (an offensive touching) to assault (an incomplete battery) to tortious interference with contract (run-ins in title matches and evil managers) to hostile work environment (evil General Managers or Mr. McMahon’s ‘Kiss my Ass’ club). Of course, you very rarely see any kind of legal recourse for these offenses. That is probably because legal recourse does not sell nearly enough tickets. What we get instead is a throwback to older times and a complete disregard for law and order.

For example, let us go back to the fateful day when Ted Dibiase became a hero, Ric Flair remained Ric Flair, and Dick Murdock committed a series of torts that should have cost him a chunk of change and some jail time. Continue reading “Torts, Ted, and Captain Redneck”

(The Legal aspects of the Mr. R Angle Part III)

Welcome back. On the road today in Newport Beach for the Solo and Small Firm Summit. I always enjoy these opportunities to learn more ways to better my craft and my business. To tie it into wrestling, it is like those young wrestlers who take the time and spend the money to attend seminars by well regarded and well-traveled wrestling veterans when they can. We will have more on what we have picked up here in a later post. Let us finish off the Ted-Dibiase Mr. R issue today. In Part I, we took a look at the backstory and contract between Ted Dibiase and the not-too-mysterious Mr. R. In Part I we also examined what forms a contract and what kind of contract was formed between Dibiase and Mr. R. In Part II, we took a look at some of the problems in contracting with a masked man. Today, we finish off by looking at what Dibiase’s attorney might have argued on his behalf to negate the title change and what legal theories could be used to combat that position. Continue reading “(The Legal aspects of the Mr. R Angle Part III)”