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Monthly Archives: March 2012

School bullying didn’t amount to civil rights violation

A federal judge’s decision this week illustrates the problems lawyers will have making the case that the failure of school officials to prevent bullying amounts to a violation of constitutional rights.

By all accounts, Dana Reyna’s daughter, K.M.R., had two horrible years when she attended Kenneth Cooper Middle School between 2007 and 2009. The school is part of the Oklahoma County Independent School District and is located in Oklahoma City, Oklahoma.

K.M.R. missed the beginning of sixth grade in the fall of 2007 due to illness. When she returned to school in January 2008, she had trouble fitting in, to say the least.

According to Reyna, her daughter was subjected to ridicule and threats by other students, so much so that K.M.R.’s psychotherapist diagnosed her with severe depression and recommended that she be removed from school.

After spending the remainder of sixth grade in a private school, K.M.R. returned to Kenneth Cooper Middle School for seventh grade in the fall of 2008. Reyna alleges that, upon her return, K.M.R. was tormented by certain of her classmates, experiencing such humiliations as having her keys thrown in a toilet, lunch card cut up and home toilet-papered.

K.M.R. also allegedly became the subject of classmates’ vicious MySpace posts, although school officials ultimately determined that the posts didn’t cross the line into cyberbullying. School officials also intervened on K.M.R.’s behalf when Reyna complained of the bullying, talking to the students involved and in at least one instance issuing a detention.

However, the bullying continued. Finally, Reyna removed K.M.R. from school for good in May 2009 and moved out of the school district. The final staw came when Reyna learned that her daughter allegedly had become the object of a “hate club” organized by other students.

In October 2009, Reyna filed a §1983 suit in Oklahoma state court against the school district, the school superintendent, an assistant superintendent, the principal, an assistant principal, a counselor, a nurse, and four teachers. Reyna alleged that eight students bullied K.M.R. at school and at non-school events, causing the girl to suffer severe depression and migraine headaches.

Reyna’s bullying claim was predicated on the “state-created danger” theory. She alleged that school officials and employees failed to take appropriate steps to protect K.M.R. from her tormenters.

The defendants removed the case to the U.S. District Court for the Western District of Oklahoma and the school district succeeded in having the §1983 claim against it dismissed. U.S. District Judge Timothy D. DeGiusti granted the district’s motion on the basis that Reyna’s complaint failed to allege that the school district had an official policy endorsing bullying or refusing to address bullying, or had a custom or practice of allowing bullying.

Thursday, Judge DeGiusti granted summary judgment to the individual defendants in the case, concluding that Reyna failed to allege sufficient facts from which to establish the school employees’ liability under the “danger creation” theory. The judge explained: 

The facts do not suggest school employees acted in a way that created a danger of bullying to K.M.R. or increased her vulnerability to bullying, nor do the facts establish that any employee consciously disregarded a substantial risk of serious harm to K.M.R. Further, Plaintiffs have failed to present properly-supported facts to establish conduct by school employees that would satisfy the conscience-shocking standard established by existing case law. At most, Plaintiffs have put forth facts suggesting that some school employees may have been negligent in not more appropriately addressing K.M.R.’s medical needs or her mother’s complaints of bullying. However, “negligent government conduct is insufficient to prove liability under §1983.”

(Reyna v. Oklahoma County Independent School District No. 1

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Suit over 24 bogus parking tickets revived

The 7th Circuit yesterday revived a “class of one” civil rights suit brought by a man who was issued 24 sham parking tickets by Chicago police.

“Somewhere between the first several and the twenty-fourth bogus tickets from officers of the same police unit, [the plaintiff’s] grievance rose to the level of an actionable class-of-one discrimination claim,” wrote Circuit Judge David F. Hamilton in Geinosky v. Chicago

The plaintiff in the case is Mark Geinosky. Over a fourteen-month period beginning in October 2007, Geinosky received  24 parking tickets for his Toyota in the mail. All were written by officers of Unit 253 of the Chicago Police Department.

The tickets were suspect right off the bat.

They typically arrived in batches of three or four and, when compared, sometimes indicated that his vehicle was parked in two spots at the same time. Thirteen tickets issued by one particular officer had sequential citation numbers and concerned alleged violations that occurred at exactly 10:00 p.m. on the dates they were issued. What’s more, ten of the tickets were issued during periods when Geinosky’s Toyota was in the possession of his estranged wife.

In fact, Geinosky suspects that his now ex-wife knew someone in Unit 253 and that she inspired a campaign of harassment against him, but he thus far has been unable to prove it and she denies it.

Geinosky managed to show that none of the tickets were legitimate and had them dismissed, but it took seven trips to court to clear up the matter. He also complained to the Chicago Police Department, but his complaints fell on deaf ears until he contacted The Chicago Tribune and his plight started to get some play in the local media.

The newspaper reported last November that a Chicago PD internal investigation had resulted in a recommendation to fire several officers from Unit 253.

While he may get some satisfaction that the officers involved are now in hot water, what Geinosky really wants is compensation from the city of Chicago for all his troubles. So he sued the city under §1983, asserting a “class-of-one” equal protection claim.

The district court dismissed his lawsuit, concluding it was fatally flawed because Geinosky did not specifically identify a similarly situated individual who was treated differently.

But yesterday, the 7th Circuit decided that, in a straightforward official harassment case such as this case, it would serve no purpose to force a plaintiff to name a similarly situated person who was not so severely harassed. Judge Hamilton explained:

[R]equiring Geinosky to name a similarly situated person who did not receive twenty-four bogus parking tickets in 2007 and 2008 would not help distinguish between ordinary wrongful acts and deliberately discriminatory denials of equal protection. Such a requirement would be so simple to satisfy here that there is no purpose in punishing its omission with dismissal. Here, the pattern and nature of defendants’ alleged conduct do the work of demonstrating the officers’ improper discriminatory purpose. Geinosky’s general allegation that defendants “intentionally treated plaintiff differently than others similarly situated” is sufficient here, where the alleged facts so clearly suggest harassment by public officials that has no conceivable legitimate purpose. To require more would elevate form over substance.

The judge was unsympathetic to the city’s contention that allowing Geinosky’s lawsuit to proceed would invite a flood of similar lawsuits:

The extraordinary pattern of baseless tickets that Geinosky received will remain rare, we trust, particularly now that the Police Board and the courts are involved. The litigation floodgates should not open for the additional reason that truly random law enforcement, as when an officer picks one of many speeding cars to stop and ticket, provides a rational basis for the selection even if the ticketed driver feels she was unfairly singled out. Officers have discretion for powerful reasons, not the least of which is the impossibility of ticketing all traffic or parking violations and the ineffectiveness of ticketing none. Because officers must choose among violators, random selection is certainly rational. We are not inviting every driver with a couple of parking tickets (even invalid ones) to sue in federal court.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Court increases lawyer’s discipline to disbarment

A Utah attorney probably felt like he dodged a bullet when he only received a suspension after being caught playing games with a client’s settlement funds. Unfortunately for him, the Utah Supreme Court had yet to weigh in.

Clayne I. Corey’s long road to losing his law license began in 1999 when Maxine Stager retained him to represent her in a personal injury case under a typical 33.3 percent contingent fee agreement.

The case settled in February 2000 and Stager received a $122,500 check from the insurance company that was made out to both her and Corey.

According to court records, things started to go awry when the entirety of Stager’s settlement award was deposited into Corey’s operating account instead of his client trust account. Despite knowing that the settlement funds were in his operating account, Corey continued to write checks against the balance.

This was really bad news for Stager because it seems that virtually all the money in Corey’s account was from the settlement check. The balance in Corey’s operating account dropped from $128,916.14 in February 2000, to only $2,909.12 by the end of June of that year.

Of course, Stager wanted her money. Corey tried to mollify Stager for awhile by sending her monthly payments of $500. The lawyer later allegedly tried to muddy the waters by proposing the creation of a special needs trust for Stager, and still later proposing that Stager take his promissory note.

But eventually Stager had had enough and sued Corey to recover the balance of her settlement money, some $50,371.21, plus interest.

In 2009, the Utah Office of Professional Conduct got wind of Stager’s lawsuit to recover the missing money, and Corey was in big trouble.

Utah is unusual in that a state trial court instead of a disciplinary panel hears the type of complaint that the Office of Professional Conduct brought against Corey. The trial court in Corey’s case took pity, buying his claim that his misconduct was caused by mental illness, purportedly related to a non-cancerous, arachnoid cyst in his brain that wasn’t diagnosed and surgically removed until 2009.

And in an amazing act of legal jujutsu, the trial court determined that Corey had not acted with the requisite wrongful intent to misappropriate client funds for raising a presumption in favor of disbarment under state law. So instead of disbarment, the trial court ordered that Corey be suspended (the length of the suspension is not mentioned in the case).

Moreover, since Corey still owed Stager her money, the trial court stayed the lawyer’s suspension to facilitate his payment of restitution.

Corey must have been overjoyed with this result, thinking he had escaped a professional death sentence by the skin of his teeth.

But the Office of Professional Conduct appealed the trial court’s decision to the Utah Supreme Court, arguing the presumptive discipline should have been disbarment.

Yesterday, the state high court decided that the trial court had it all wrong and that disbarment should indeed be Corey’s fate.

Justice Thomas Lee wrote the court’s opinion and, on the issue of intent, he explained that it was clear from the record that Corey intended to benefit himself in misappropriating Stager’s settlement funds:

Corey concedes that he knew that Stager’s funds had been deposited into the firm’s operational account rather than a client trust account. And he does not assert that he misdeposited Stager’s funds or that he unwittingly drew against his newly inflated operational account. Corey was aware that the settlement funds were located in the firm’s operational account, just as he was aware that the funds significantly increased the account balance. Corey therefore knew that every time he drew a check against that account balance, he was using his client’s funds to cover firm expenses.

Corey made a feeble attempt to argue that intent could not be inferred because there was no proof as to how exactly he used the money.

This argument fell flat with Justice Lee, who explained that ”a lawyer’s use of client funds is intentional whether the money is spent on a new Harley, food for orphans, or the quills and ink for his firm. In any case, the effect is the same—counsel has knowingly stolen his client’s funds with the intent to spend that money in a manner chosen by him and not the client.” 

With the presumption in favor of disbarment firmly established, the justice turned to evidence of mitigation and found that the trial court had been far too indulgent in entertaining Corey’s attempt to blame everything on mental illness and cyst in his brain. Lee wrote:

Even if the seeds of Corey’s cyst had been planted from before childhood, there is simply no evidence before us that the cyst existed or significantly impaired Corey’s cognitive abilities when he took on Stager’s case. There is, moreover, no evidence to suggest that Corey’s impairment would have prevented or did pre-vent him from developing the requisite intent to misappropriate Stager’s funds for his own benefit.

Finally, Lee expressed deep skepticism of Corey’s claim that, ever since the removal of his cyst, his behavior has been exemplary:

This remarkable turnaround does not strike us as compelling mitigation evidence, however. It is no surprise that a lawyer faced with disbarment – the proverbial professional death-sentence – has seen the light and changed his ways. Furthermore, although Corey professes that since the removal of his cyst he continues to get better, his actions so far suggest that he feels the same. Corey’s failure to repay Stager’s funds after more than a decade of holding on to them highlights just how easy it is to excuse his behavior now that he has something to blame. He has had ample time and opportunity to repay the funds owed to Stager, but to date he has given her nothing.

(In re Discipline of Corey)  

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Georgia Supremes: Police can search cell phone

Police didn’t need a warrant to check text messages on a cell phone taken from a drug suspect incident to her arrest, the Georgia Supreme Court ruled Friday.

“[A] cell phone is ‘roughly analogous’ to a container that properly can be opened and searched for electronic data, similar to a traditional container that can be opened to search for tangible objects of evidence,” wrote Justice P. Harris Hines in Georgia v. Hawkins

The court’s decision sealed the fate of Haley Hawkins who made the mistake of exchanging text messages with an undercover police officer who was intent on setting up a controlled drug buy.

After agreeing by text to meet the officer, Hawkins arrived in her car at the appointed time and place. The undercover officer saw Hawkins arrive and observed her entering data into her cell phone as he contemporaneously received her text message confirming her arrival. 

The officer then sprung his trap and arrested Hawkins for attempting to sell drugs. In searching Hawkins’ vehicle, the officer found her cell phone inside her purse. The officer searched the cell phone for the text messages he had exchanged with Hawkins, and then downloaded and printed them. 

Hawkins moved to suppress evidence of the text messages, contending that the warrantless search of her cell phone violated the Fourth Amendment. The trial court denied the motion and the Georgia Court of Appeals affirmed, concluding that the accessing of Hawkins’ cell phone was a lawful search incident to arrest. 

Friday’s decision by the Georgia Supreme Court accepted the lower court’s conclusion that Hawkins’ cell phone could in large measure be treated in the same manner as a traditional physical container. 

“The wisdom of this conclusion can be seen in the fact that a major focus of an examination into the propriety of a container search incident to arrest is the nature of the object of the search,” explained Justice Hines. “And, in circumstances such as these, the similarity of a cell phone to a traditional container in which there might be found physical entities of evidence is clear; it is reasonable to believe that the object of the search will be found inside the cell phone.” 

But Hines was careful to point out that the court’s holding did not authorize police to conduct a “fishing expedition” and go through all of the data stored in an arrestee’s cell phone.

Instead, the justice emphasized that the search of a cell phone’s contents must be reasonable in its scope. 

“Thus, when ‘the object of the search is to discover certain text messages, for instance, there is no need for the officer to sift through photos or audio files or Internet browsing history data stored [in] the phone,’” the justice wrote.

Here, the court concluded that the search was reasonable given that the undercover officer actually observed Hawkins send him text messages and therefore knew that those messages would be readily retrievable from the cell phone left in her car.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Do dentures invalidate driver’s breath test?

Drunk drivers will grasp at any straw to keep their licenses. By way of example, one state court just last week tackled the issue of whether a driver’s Intoxilyzer 8000 test was invalid because he wasn’t asked to remove his dentures beforehand.

Gary Bolton wants his Kansas driver’s license back. He lost it because he blew a .246 on an Intoxilyzer 8000 after being arrested for DUI back in 2008.

Bolton was wearing removable dentures at the time he took the test. The police officer who administered the test didn’t detect the dentures when he visually inspected Bolton’s mouth, and Bolton answered that there was nothing in his mouth when asked.

According to Bolton, the presence of his dentures rendered the test results invalid because the state’s testing protocol prohibits the “oral intake of anything” for 20 minutes before the test.

A state trial court upheld the administrative suspension of Bolton’s license, concluding that the officer had substantially complied with testing standards.

Friday, the Kansas Court of Appeals affirmed Bolton’s license suspension.

According to the court, there were two problems with Bolton’s argument. First, since his dentures were already in his mouth, they obviously weren’t something that was orally administered within the 20-minute deprivation period

“The officer observed Bolton for more than 20 minutes, and Bolton didn’t take anything into his mouth during that period,” the court explained. “The officer substantially complied with testing procedures, even though Bolton wasn’t asked to remove his dentures.”

Secondly, and perhaps more importantly, the court pointed out that Bolton failed to provide any evidence that having dentures in one’s mouth affects the breath-test result in any way.

“The only evidence supporting Bolton’s position is the officer’s testimony that had he known Bolton had removable dentures in his mouth, the officer would have asked him to take them out before the test,” the court said. “But the officer said he would have done this ‘just to be safe and avoid issues down the road,’ not because anyone had trained him to do so.” (Bolton v. Kansas)

This has evidently been a losing argument for criminal defense attorneys across the country, since the court noted similar decision by state courts in Florida, Illinois and Missouri.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

1st Circuit takes angry call to court clerk seriously

You probably want to bite your tongue next time you get angry dealing with a federal court employee. They take threats seriously, even when they come from a cranky old guy.

Thomas Stefanik discovered that fact the hard way. In 2009, Stefanik was a pro se appellant with three appeals pending before the 1st Circuit. On Oct. 9, 2009, the 60-year-old resident of Massachusetts received a notice from the court that his appeals would be dismissed unless he paid his filing fees or, in the alternative, filed a proper request to proceed in forma pauperis.

Stefanik thought he already had filed an in forma pauperis motion with the district court. Upset by the notice of dismissal, Stefanik called the clerk’s office for the 1st Circuit. Court employee Erika Dowling took the call, but she hung up on Stefanik after he became angry and started calling her names.

Dowling went to her supervisor, Frank Perry, to report Stefanik’s abusive call. As the two court employees were discussing what had happened, Stefanik called a second time.

This time, Perry fielded the call and tried to smooth things over. When Perry explained that he could not locate the in forma pauperis motion on the court’s docket, Stefanik became angry and screamed: “What kind of douche bags do you hire? I’ll come down there with my shotgun and show you who means business.”

Perry managed to calm Stefanik down and explain to him what he would need to do clear up the problem. Stefanik agreed to handle it in the manner suggested, but just couldn’t end their conversation without saying, “You’re lucky I’m only talking on the phone and not driving down there with my shotgun, Perry.”

Perry took this threat more seriously and advised Stefanik that he was crossing the line.

This angered Stefanik once more, and he yelled, “You will advise me of nothing.” Stefanik swore some more and then hung up the phone.

Perry claims that he felt “anxious and intimidated” by Stefanik threats, which is sort of hard to believe. Pro se parties are a notoriously cantankerous lot, and you’d think that some old guy’s threat to grab a shotgun would go in one ear and out the other.

But the “anxious and intimidated” Perry reported the incident to higher ups. The U.S. Marshalls and FBI got involved and Stefanik found himself indicted and convicted for threatening a United States official. What’s more, Stefanik didn’t receive a light slap on the wrist for his angry words. No, he received 21 months in prison.

If Stefanik had even the slightest hope that the judges of the 1st Circuit would show mercy when they heard his appeal, he was to be disappointed.

Yesterday, the 1st Circuit upheld Stefanik’s conviction and sentence.

In addressing Stefanik’s contention that he was just a crusty old guy who let his mouth get the better of him and that no one could have possibly taken his threats seriously, the court explained:

The evidence established the following. First, Stefanik angrily screamed: “I’ll come down there with my shotgun and show you who means business.” (statement one). Sometime later, he followed it up with a calmer: “You’re lucky I’m only talking on the phone and not driving down there with my shotgun, Perry.” (statement two). Both comments left Perry feeling anxious and intimidated.

In this court’s opinion, it is beyond quarrel that Stefanik should have reasonably foreseen that an objectively reasonable person, and more specifically Perry, would perceive statement one – that an armed Stefanik would show up at the courthouse – as a threat. Stefanik did not mince words and there is simply no way to view this first remark, other than as a threat. The fact that Stefanik, later in the conversation, followed it up with statement two does not negate statement one. To the extent it lends context to it, we disagree that it softens the blow. In fact, a reasonable jury could have seen things as Perry did – that statement two (made in a calm tone with a reference to Perry by name) was more concerning because it seemed calculated. 

(U.S. v. Stefanik)

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Lawyer can’t charge extra for ‘hand-holding’

The 1st Circuit yesterday had no sympathy for a Massachusetts bankruptcy lawyer who said his high billable hours were partly due to clients who demanded unusually frequent communications.

“After all, lawyers have an obligation to keep hand-holding within reasonable limits,” wrote Circuit Judge Bruce M. Selya in Berliner v. Pappalardo.

The case was over $8,173.36. That’s what Attorney L. Jed Berliner said he was owed over and above the $3,684 retainer that he had been paid by David Sullivan and his wife, Luz Eneida Sullivan, to represent them in their Chapter 13 bankruptcy case.

The bankruptcy trustee objected, saying Berliner’s fee application was excessive in light of the relatively uncomplicated nature of the Sullivans’ case. The bankruptcy court agreed and ruled that Berliner would have to be satisfied with his $3,684 initial retainer.

Before the 1st Circuit, Berliner pointed to his fee application, which itemized the hours he purportedly worked in the Sullivans’ case. To overcome the notion that the hours seemed excessive in light of the nature of the case, Berliner first tried to argue that he was forced to perform some tricky means testing in filing the case because the Sullivans’ income was above the median.

This argument didn’t go over particularly well with Judge Selya and his colleagues on the panel (which happened to include retired Justice David Souter):

[N]othing in the record compels the conclusion that the bankruptcy court erred in finding that, notwithstanding the need for a means test calculation, the debtors’ case was not complex. The bankruptcy court has extensive experience with the means test and did not believe that the necessity for performing the test in this case justified the unusually high fees requested.

To justify the extra $8,000, Berliner also argued that the Sullivans required his advice on a real estate transaction that potentially impacted their Chapter 13 case. Unfortunately for the attorney, Judge Selya didn’t see anything in the record to substantiate this claim.

Judge Selya wrote that Berliner “has pointed to no facts in the record that would entitle us to second-guess the bankruptcy court’s conclusion that the proposed property sale did not unduly complicate the Chapter 13 proceeding. Because the bankruptcy court’s characterization of the case as uncomplicated was not clearly erroneous, we must honor it.”

That left Berliner’s contention that he racked up the billable hours because the Sullivans demanded that he communicate with them on a frequent basis.

This argument went over like the proverbial lead balloon.

“This purported need for extensive communications did not impress the bankruptcy court – and we understand why,” Selya said. “It strains credulity that even the most loquacious client could cause legal bills to triple (and if that happened, one would have ample reason to question the lawyer’s management of the case).”

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Court: Restitution can be based on Social Security

An elderly woman convicted of battery could be ordered to pay her victim’s medical bills – even though her only source of income was Social Security. That’s what the Indiana Supreme Court decided yesterday. 

The decision came in the case of Rebecca Kays. Kays won’t remind anyone of John Dillinger, but she still managed to find herself in trouble with the law. 

You see, Kays had a dispute with her next-door neighbor, Cheryl Wolfe, over where the property line lay between their two Knox County homes. That dispute was settled by a surveyor who placed metal posts on the line to mark it.

It doesn’t take too much to figure out who was pleased by the result of the survey and who wasn’t. While Kays stewed, Wolfe proudly placed PVC pipes over the posts to make them more visible.

This marking of territory became too much for Kays to stomach, so she removed the pipes and in a fit of anger threw them into Wolfe’s yard.

Unfortunately, Wolfe found herself in the path of one of these missiles and was struck in the leg. Wolfe’s leg injury was serious enough to require medical attention. She received stitches and incurred $1,496.15 in medical bills.

It was at this point that the neighborhood feud came to the attention of police. The state charged Kays with Class B misdemeanor battery. A state court convicted Kays after a bench trial and sentenced her to 180 days in jail, suspended to twelve months probation, and a fine of $10.

As a term of probation, the trial court ordered Kays to pay restitution to Wolfe in the amount of her medical bills.

Kays appealed, claiming that the $1,496.15 was beyond her ability to pay because her only source of income was $674 per month in Social Security disability payments.

The Indiana Court of Appeals reversed the restitution order, concluding that the trial court failed to make sufficient findings regarding Kays’ ability to pay. Moreover, the state appeals court specifically instructed the trial court to ignore Kays’ Social Security income, concluding that the restitution order constituted an “other legal process” prohibited by the Social Security Act’s anti-attachment provision, 42 U.S.C. §407(a).

Yesterday, the Indiana Supreme Court agreed that the trial court needed to more fully address the issue of Kays’ ability to pay restitution.

However, the state high court expressly held that Kays’ Social Security income could be considered in ordering restitution.

“[W]e find nothing in 42 U.S.C. §407(a) to prohibit a trial court from considering a defendant’s Social Security income when determining the ‘amount the person can or will be able to pay’ in restitution pursuant to [state law],” the court said.

Instead, the court was persuaded that “ignoring a defendant’s Social Security income may paint a distorted picture of her ability to pay restitution. For example, a debt-free defendant who lives with a family member and receives room and board at no charge may very well have the ability to pay restitution even if her only income is from Social Security. …

“This does not mean that the state could levy against that income to collect the restitution, but it does reflect an important part of the person’s total financial picture that a trial court may consider in determining ability to pay.” (Kays v. Indiana

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Suit over Cornell student’s suicide survives dismissal

A federal judge in New York has given the green light to a lawsuit seeking to hold the city of Ithaca and Cornell University liable for the death of a student who committed suicide by jumping from a local bridge.

“[The] defendants’ duty was to maintain the Thurston Avenue Bridge in a reasonably safe condition as to prevent suicides,” wrote U.S. District Judge David N. Hurd in Ginsburg v. City of Ithaca

The case involved the tragic death of Bradley Marc Ginsburg. On Feb. 17, 2010, Bradley jumped to his death from the Thurston Avenue Bridge near the Cornell campus in Ithaca. Bradley was an eighteen-year-old Cornell freshman at the time.

Unfortunately, such episodes have been fairly common in the college town. Between 1990 and 2010, twenty-nine people attempted suicide by jumping from the seven bridges located on or near the Cornell campus. Of the twenty-nine suicide attempts, 27 were successful. Fifteen of the people who died were Cornell students.

To address the problem, community leaders sought to implement suicide prevention measures on the bridges in the area. This program included the redesign and reconstruction of the Thurston Avenue Bridge in 2006–2007. Ithaca owns the bridge, but Cornell had input in the design changes.

To deter suicides, the city raised and curved the side railings on the bridge. Unfortunately, these measures weren’t sufficient to prevent Bradley’s suicide.

Bradley’s father, Howard Ginsburg, sued the city and the university for wrongful death last November in the U.S. District Court for the Northern District of New York. In his complaint, Howard essentially alleged that the defendants were negligent by failing to implement adequate suicide prevention measures on the Thurston Avenue Bridge.

The city and the university moved to dismiss, primarily arguing that they had no duty under New York law to prevent Bradley’s death. 

Thursday, Judge Hurd denied their motions to dismiss.

As a threshold issue, the court addressed Cornell’s argument that it had no liability because the Thurston Avenue Bridge is city-owned.

Ironically, the judge deemed the university’s earlier participation in the suicide prevention program as providing a partial basis for allowing Howard’s lawsuit to proceed. In particular, the court pointed to Howard’s allegation that Cornell exercised “extensive control” over the operation of the bridge and interacted with the architects, engineers, and contractors to finalize the redesign plans and oversee the reconstruction of the bridge in 2006–2007.

“Accordingly, for purposes of this motion, plaintiff’s assertion that Cornell and Ithaca jointly controlled and maintained the bridge is accepted as true, and any duty owed will be ascribed to both entities,” Judge Hurd wrote.

Turning to the nub of the matter, the judge concluded that Bradley’s suicide was sufficiently foreseeable for the imposition of a duty of care under New York premises liability law.

This was so even though Bradley did not exhibit any outward signs of depression or suicidal thoughts prior to his death. The judge explained:

[T]he possibility that Bradley in particular would commit suicide is irrelevant. It was clearly foreseeable that someone may commit suicide by jumping off the Thurston Avenue Bridge. Indeed, twenty-nine people had jumped from area bridges since 1990. Ginsburg alleges that this particular bridge had earned a dubious reputation for suicide attempts, and he identifies an article in which [a school official] acknowledged that safety measures are necessary to prevent people from impulsively jumping off bridges in the area. … In short, the history of suicides and suicide attempts, defendants’ public acknowledgment of the phenomenon, and the bridge’s accessibility to a student population – fifteen percent of which regularly considers suicide – shows defendants had actual, or at least constructive, knowledge that a suicide attempt from the bridge was foreseeable.

The judge further rejected the argument raised by the city and the university that, because the bridge had been redesigned and reconstructed after a thorough safety study and in compliance with all federal and state standards, as a matter of law it could not be said it was in an unreasonable dangerous condition.

“[A]t this early stage of the litigation, plaintiff’s allegation that the bridge was still in a dangerous condition in the face of a foreseeable risk that students would continue to attempt suicide from area bridges must be credited,” the judge said. “Clearly, the redesign and reconstruction did not prevent Bradley from jumping off the bridge.”

Finally, the court rejected the defendants’ contention that Bradley’s affirmative act of jumping from the bridge was an intervening, superseding act that cut off any liability.

Judge Hurd explained that the defendants’ duty “was to maintain the Thurston Avenue Bridge in a reasonably safe condition as to prevent suicides. In fact, one of the purposes of the 2006–2007 redesign and reconstruction of the bridge was to fulfill that obligation. Thus, Bradley’s affirmative act of jumping from the bridge cannot be considered extraordinary or unforeseen.”

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Police can’t look under pickup’s tonneau cover

Benchmarks is always on the lookout for those novel search and seizure cases that help point the way for criminal defense attorneys. Last week, the Oregon Court of Appeals reached the somewhat counterintuitive conclusion that police can’t treat the covered bed of a pickup truck the same as the trunk of a car.

The beneficiary of that decision is Jay Lee Hanna. A Eugene, Ore., police officer investigating property crimes saw Hanna place suspected stolen items in the back of his Dodge pickup truck.

Interest piqued, the officer waited for Hanna to commit a traffic offense before initiating a stop. The officer place Hanna under arrest after determining that he was driving without a valid license and that he hadn’t kept up with his sex offender reporting requirements.

With its driver in handcuffs, police decided to tow and impound Hanna’s pickup truck. That led officers to conduct an inventory search of the vehicle pursuant to the Eugene Police Department’s policy.

The officers struck gold when they searched the cab of the truck, finding a glass pipe with a white residue that turned out to be methamphetamine. The inventory search of the cab complete, police turned their attention to the bed of the truck.

The bed of Hanna’s pickup truck was covered with a tonneau cover. You’ve seen those. They’ve become a favorite of the more stylish pickup truck owners.

A tonneau cover often looks like a black leather tarp covering the entire bed of the pickup. In fact, they’re typically made of hard plastic, fiberglass, or metal. Like a trunk, a tonneau cover can be locked to secure items in the rear of the vehicle.

Police found that Hanna’s cover was locked, but that wasn’t a problem because they had found the keys to the cover when they searched the cab.

Unlocking the cover, police discovered a shotgun in the pickup’s bed. This was more bad news for Hanna because he was a convicted felon who wasn’t supposed to have a firearm.

A state court later denied Hanna’s motion to suppress and he was convicted of possession of methamphetamine and being a felon in possession of a firearm.

Hanna’s strongest argument on appeal was that police had conducted an unlawful inventory search when they unlocked the tonneau cover and searched the bed of his pickup.

Eugene Police Department’s inventory search policy doesn’t specifically address pickup trucks with tonneau covers, but the state was confident that the inventory search of Hanna’s truck bed fell within the guideline authorizing the search of a vehicle’s “trunk and any external vehicle container(s) attached to the vehicle (e.g., car-top carrier) if you can open them without damaging the vehicle or the container.”

Wednesday, the Oregon Court of Appeals concluded that the search of Hanna’s pickup bed exceeded the scope of the police department’s inventory search policy.

First, the court concluded that the pickup’s bed, as enclosed by the pickup’s walls and the locked tonneau cover, was not a “trunk” under the department’s policy:

To be sure, the combination of the bed of a pickup and a tonneau cover can create a space that performs the same function as a trunk, just as a backpack or fanny pack can perform the same function as, for example, a briefcase or a purse. But just as a fanny pack is not a purse, neither is a pickup bed covered with a tonneau cover a trunk. In that regard, we emphasize that the operative provision of the inventory policy at issue here is phrased precisely, in terms of a specific referent, “trunk,” rather than more broadly and functionally – e.g., “a trunk or any other area of a motor vehicle designed or created to contain items of personal property.”

Further, the court concluded that the search was not authorized under language authorizing the search of external vehicle containers. The court said: 

Reference to the dictionary would be gratuitous because, even granting that the combination of the tonneau cover and the bed and walls of the pickup created a “container,” that “container” was not “external” or “attached” to the vehicle. Rather, parts of the vehicle itself were integral components of the “container”; that is, without the vehicle, there could be no “container.” Nor is the tonneau cover, which is “attached to the vehicle,” itself a “container” any more than the lid to a travel coffee mug is a container. Rather, the cover by itself is just that – a cover.

(State v. Hanna)

With the shotgun suppressed, the court proceeded to reverse Hanna’s conviction for felon in possession of a firearm.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

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