Legal Report November 2011
U.S. JUDICIAL DECISIONS
PREMISES LIABILITY. A jury in Broward County, Florida, has ordered that Cornerstone Residential Management pay a rape victim $1.28 million. The jury found that Cornerstone should have done more to protect the residents who lived on its property.
Cornerstone owned and managed the Imperial Estates Mobile Home Park, where 18-year-old Amanda Slone was staying with her grandfather in 2008. An intruder broke in, threatened Slone with a gun, and demanded that she give him money. When Slone had no money to give the robber, the assailant dragged her to a nearby field and raped her. The attacker was never identified.
Slone filed a lawsuit in 2009, alleging that Cornerstone failed to provide adequate security to the mobile home park. Christopher Marlowe of The Haggard Law Firm in Coral Gables, Florida, represented Slone along with attorney Michael Haggard. Marlowe argued that Cornerstone did nothing to improve security even though it knew that the property was in a high-crime area.
The defense contended that, under Florida law, Cornerstone had no legal duty to protect Slone from the criminal acts of a third party. According to the defense, Slone’s grandfather had the sole responsibility for protecting his premises. Because of this, the defense argued that the case should be dismissed.
Marlowe contended that Cornerstone had failed to take even rudimentary steps to protect residents of the 262 homes in the park. The only management presence was an onsite manager during the day, five days a week. No one was on duty at night or on the weekends. And, according to Marlowe, police reports indicated hundreds of incidents within the mobile home park going back for four years. “Most incidents were of drunken behavior but others were violent crimes,” Marlowe says.
For example, Marlowe discovered that there had been an attempted rape six weeks before Slone was abducted and raped. In the prior incident, a man was in the process of trying to rape a woman when the woman’s brother interrupted the attack. The brother was shot in the leg. The description of the assailant was similar to Slone’s description of her attacker. No arrest was made in the case.
During the trial, according to Marlowe, one of the themes that came through is that those paying low rent cannot expect strong security. “So, we had to provide the jury with suggestions of ways management could have increased safety that didn’t cost anything,” he says.
One of those suggestions was information sharing. “The management was aware of this prior rape but made no effort to inform the community,” says Marlowe. “We weren’t trying to suggest that the management turn the property into Fort Knox, but they didn’t even provide residents with basic information.”
Attorneys for Cornerstone have filed an appeal in the case. Because of the appeal, they could not comment on the jury decision. (Slone v. Cornerstone Residential Management, Broward County, Florida, Circuit Court, 2011)
TORTURE. A federal appeals court has ruled that two American citizens who were tortured by the U.S. government can proceed with their lawsuit against the United States and former Secretary of Defense Donald Rumsfeld. The two plaintiffs, Donald Vance and Nathan Ertel, worked for Shield Group Security, an American company that provided contract military services to the U.S. government in Iraq. Vance became suspicious that Shield Group Security was involved with corruption and illegal activity.
Vance and Ertel, at the request of the U.S. government, became whistleblowers, providing intelligence on employees of Shield Group Security who were potentially involved with illegal arms trading, weapons stockpiling, and bribery.
Officials with Shield Group Security became suspicious of Vance and Ertel, confiscating their credentials so that they could not leave the company’s compound. The men called their government contacts and were assured that the government would come to rescue them. U.S. forces did come to the compound, but they confiscated the men’s computers and papers and held a debriefing. Vance and Ertel were taken to a trailer to sleep.
Several hours later, the two men were awakened, arrested, handcuffed, blindfolded, and driven to a U.S. military compound in Baghdad. Vance and Ertel were held there for months and tortured. Eventually they were dropped off at the Baghdad airport to find their own way home. No charges were ever brought against them.
The men sued the government and Rumsfeld for violations of their Fifth Amendment rights to due process. The defendants moved to dismiss all claims and argued that Rumsfeld was protected by qualified immunity—a legal theory that protects government employees from liability unless their actions clearly violated statutory or constitutional rights that would have been obvious to a reasonable person.
The U.S. Court of Appeals for the Seventh Circuit ruled that the plaintiffs may pursue their case and that Rumsfeld is not protected under qualified immunity. The court ruled that dismissing the case would “deprive civilian U.S. citizens of a civil judicial remedy for torture or even cold-blooded murder by federal officials and soldiers, at any level, in a war zone.”
In addressing Rumsfeld’s personal responsibility, the court noted that qualified immunity was not appropriate. “The law was clearly established in 2006 that the treatment plaintiffs have alleged was unconstitutional,” wrote the court. “No reasonable public official could have believed otherwise.” (Vance v. Rumsfeld, U.S. Court of Appeals for the Seventh Circuit, No. 10-1687, 2011)
U.S. CONGRESSIONAL LEGISLATION
GOVERNMENT CONTRACTORS. A bill (S. 1145) that would expand the government’s ability to prosecute U.S. contractors that commit criminal acts in other countries has been approved by the Senate Judiciary Committee. The bill must now be taken up by the full Senate.
The bill would apply to all contractors working for U.S. government agencies except the Department of Defense (DoD). (The Military Extraterritorial Jurisdiction Act of 2000 extended federal criminal law to contractors working for the DoD.) Under S. 1145, contractors could be prosecuted for numerous offenses, ranging from arson to tampering with a witness. The bill would also mandate that any agency that sends contractors to foreign countries must create a task force to investigate allegations of criminal offenses.
ONLINE PRIVACY. A bill (H.R. 1981) designed to thwart producers and consumers of online child pornography has been approved by the House Judiciary Committee. The House of Representatives has not announced whether it will consider the measure.
As part of the bill’s enforcement mechanism, Internet service providers (ISPs) would be required to keep one year’s worth of records for every user on a sliding basis, after which time, records older than a year could be deleted. In addition to keeping records on Internet use, ISPs would retain customer names, addresses, phone records, and credit card numbers.
At a hearing to consider the measure, witnesses such as Marc Rotenberg, director of EPIC, a privacy advocacy group, argued that storing such information could lead to more serious exposures during data breaches.
CYBERSECURITY. A bill (H.R. 2096) that would mandate government cybersecurity efforts has been approved by the House Science, Space, and Technology Committee. The next step would be for the bill to be considered by the full House of Representatives.
Under the measure, certain federal agencies would have to transmit a cybersecurity strategic research and development plan to Congress. An annual update would also be required. The executive branch would be required to report to Congress on the cybersecurity needs of the federal government work force.
The bill would also expand existing National Science Foundation grants for basic research on innovative approaches to enhancing computer security, including research into identity theft, crimes against children, and organized crime. Under the measure, the government would establish a task force of academic and industry experts to explore mechanisms for carrying out collaborative cybersecurity activities.
HOMELAND SECURITY. A bill (H.R. 963) that would grant immunity to those reporting acts of terrorism has been approved by the House Judiciary Committee. The bill must now be taken up by the full House of Representatives.
The bill would provide immunity from civil liability to those who report their suspicions that someone may be about to engage in an act of terrorism. The report must be objectively reasonable and made in good faith. The bill also grants qualified immunity to any government official who receives such a report and takes reasonable action to respond.
WORKPLACE VIOLENCE. A new Connecticut law (formerly S.B. 970) requires healthcare facilities to conduct an assessment and then develop plans to prevent and respond to workplace violence. Employers must then train employees on the details of the programs. The law also requires that healthcare facilities maintain detailed records on workplace violence incidents and provide the number of incidents to the state’s health department. Under the law, any assaults on healthcare employees must be reported to local law enforcement within 24 hours.
BACKGROUND CHECKS. Connecticut Governor Dannel Malloy has signed a new law (formerly S.B. 361) making it illegal for employers to use credit reports to make employment decisions. Employers will not be allowed to require employees or applicants to consent to a credit check.
Exceptions are made for financial institutions or any other industry where credit checks are required by law. Employers may also run checks if they believe employees are engaged in illegal activity or if the employer can provide evidence that the credit report is “substantially job-related.”
This column should not be construed as legal or legislative advice.