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Legal Report August 2008


SECURITY GUARDS. A security guard company that reported an incident based on information from a private citizen is not liable for the arrest of innocent parties. In the case, police arrested three people after a mall patron reported a crime to a security officer who, in turn, notified police.

Debra Williams had driven her son and her nephew to the mall. A contract security guard hired by the mall called his company to report a crime as Williams left the mall. The guard said that he had received a report that a panhandler had been harassing children in the mall and had robbed two people. (The father of one of the children made the report.) The guard described the perpetrator, based on what the father told him, as a tall, black male in his late 20s. He also reported that the man had been seen leaving the mall in a dark van. The witness even provided a license plate number. The description of the van and its license plate matched the van driven by Williams.

The security company entered the information in its computer system, which was programmed to automatically send the report to local police. As Williams arrived home, police officers pulled in behind her and ordered her and the two boys out of the van at gunpoint. All three were placed in handcuffs and put in separate police cars.

The crime victims arrived at the police station to view a line-up and told officers that none of the people in custody committed the crime. Police immediately released Williams and her nephew but kept her son in custody for approximately 15 minutes and questioned him about unrelated crimes in his neighborhood.

Williams sued the police department and the security guard company for false imprisonment, and the suit further charged the security guard company with negligence in training the guard who made the report. The U.S. District Court for the Central District of Illinois found in favor of the defendants. Williams appealed the decision.

The U.S. Court of Appeals for the Seventh Circuit found that the police acted in good faith on the information they were given. The court also noted that the police could not be held responsible for the veracity of information given by a private party and that the police released all parties in a reasonable amount of time when it became clear that they were not involved in any crime.

The court also found in favor of the security guard company. The court noted that there was no evidence that the company acted with malice against Williams, a requirement to prove false imprisonment. Further, according to the court, the plaintiffs did not prove that additional training would have altered the way the incident was reported or how police responded. The guard reported a crime as told to him by a private citizen, as he was instructed to do.

The court also took exception with one of the plaintiff’s arguments—that anyone who is careless in reporting a crime to the police should be liable for false imprisonment. In the written opinion of the case, the court noted that such a step “would end the reporting of crimes to police by private persons, and is not the law.” (Williams v. City of Champaign et al., U.S. Court of Appeals for the Seventh Circuit, No. 07-1619, 2008)

TERRORIST WATCH LIST. A federal district court has rejected the government’s claim of state secrets privilege, which was used as a defense in a class action suit where the plaintiffs sought access to the terrorist watch list. The court ordered the government to turn over portions of the list.

Plaintiffs in the case claim that they were falsely detained or targeted due to being wrongly placed in the Terrorist Screening Database (TSDB) or mistaken for someone who was in the database. The TSDB is used by the government to identify potential terrorists and to refuse them entry into the United States or prohibit them from flying on commercial aircraft. As part of the lawsuit, the plaintiffs demanded that the government release the relevant parts of the TSDB so that they could prove that the list is inaccurate.

The government refused to release the information, claiming state secrets privilege. Under the privilege, the government can withhold information that would present a danger to national security if released.

The U.S. District Court for the Northern District of Illinois ruled that the government must disclose the portions of the TSDB relating to the plaintiffs. The court made the ruling, in part, based on the fact that the government had already provided information on TSDB status to some of the plaintiffs, an action that the agency permitted at the time.

The court ruled that the release of even limited information to the plaintiffs had undercut the government’s claim of privilege. The court also noted that the Fourth and Fifth Amendment violations being claimed by the plaintiffs had to be taken seriously.

In the written opinion of the case, the court noted that “against this strong showing of necessity, defendants have failed to establish that, under all the circumstances of the case, disclosure of that information would create a reasonable danger of jeopardizing national security.” (Rahman v. Chertoff, U.S. District Court for the Northern District of Illinois, No. 05-C-3761, 2008)


GENETIC DISCRIMINATION. A bill (H.R. 493) that would prohibit discrimination based on genetic information has been signed into law (P.L. 110-233) by the President.

The law expands the prohibition against genetic discrimination by group health plans and health insurance providers. The law also makes it illegal to request or require genetic testing for enrollment in an insurance plan or to base premiums on genetic testing. The law extends medical privacy and confidentiality rules to include disclosure of genetic information.

Under the law, an employer could not discriminate against or deprive an employee of employment opportunities because of genetic information.

The law also establishes a commission to review the current and future state of genetics and advise Congress on any additional legislation that might be needed.

NATIONAL SECURITY. The Senate Judiciary Committee has approved a bill (S. 2533) that would require the Executive Branch to obtain approval from a federal court each time it invokes the state secrets privilege in a civil action as a way to prevent information from being released. Under the bill, the Executive Branch would also be required to provide a report to Congress on each item within 30 days of invoking the privilege. The full Senate has not announced whether it will take up the measure.

In a hearing held on the issue, most witnesses agreed that the bill would likely pass constitutional muster. However, Robert M. Chesney, associate professor of law at Wake Forest University School of Law, warned that the Executive Branch could make a compelling argument that legal precedent prevents judicial review of evidence containing specific military or diplomatic secrets.

However, the point could be moot given President Bush’s announcement that he will veto the bill if it reaches his desk.

INTELLECTUAL PROPERTY. The House Judiciary Committee has approved a bill (H.R. 4279) introduced by Rep. John Conyers (D-MI) that would increase penalties for theft of intellectual property.

The bill would enhance criminal penalties for dealing in counterfeit labels or packaging. It would also enhance penalties for causing serious bodily harm or death while dealing in counterfeit goods or services.

In addition, the bill would require that courts seal records in lawsuits concerning intellectual property theft to encourage more companies to report such incidents. The measure would require that federal grant programs supporting study of computer crime include Internet-based copyright infringement among the issues eligible for funding.


West Virginia

WEAPONS.A new West Virginia law (formerly S.B. 185) makes it illegal for people with certain mental conditions to possess firearms. Included in these mental conditions are alcohol abuse, drug abuse, and those who have voluntarily been committed to a mental institution. (Prior to the law, only those involuntarily committed to a mental institution were prohibited from possessing a firearm.)

New Mexico

WHISTLEBLOWERS. A bill (S.B. 132) pending in the New Mexico Legislature would make it illegal for a public employer to retaliate against an employee who discloses or threatens to disclose an unlawful act committed by that employer. The bill would also outlaw retaliation against any employee who testifies as part of an investigation or hearing or who refuses to participate in an unlawful or improper act. The bill would also allow employees to sue for civil damages in such cases.

This column should not be construed as legal or legislative advice.