Legal Report June 2016
U.S. Judicial Decisions
Negligence. A Nashville jury awarded broadcast journalist Erin Andrews $55 million following a two-week trial against a hotel where Andrews’ stalker was able to reserve a room next to hers and secretly record her activities.
In September 2008, Michael David Barrett called hotels in the Nashville area to find out where Andrews would be staying while on assignment for her work as a sports reporter for ESPN. One of the hotels he called was the Nashville Marriott, which confirmed that Andrews would be staying there overnight on September 4.
Barrett requested to be placed in a hotel room next to Andrews’, and his request was accommodated without the knowledge or consent of Andrews. Barrett then proceeded to check into the hotel, remove and alter the peephole device from Andrews’ hotel room door, and film her through the peephole while she changed her clothing. The filming was done without Andrews’ knowledge.
Barrett’s video was then sent to e-mail accounts he controlled and compiled with other video footage Barrett had taken of Andrews using similar methods at other hotels. He then distributed the footage on the Internet, where it was viewed more than 16.8 million times.
Andrews learned of Barrett’s video for the first time on July 16, 2009. “The unknowing and unwelcome filming” of Andrews while she was changing and the dissemination of the videos Barrett took of her “has caused and continues to cause [Andrews] great emotional distress and embarrassment,” according to court documents.
Barrett was charged and pleaded guilty to stalking. He then served 20 months in prison for stalking Andrews and approximately 16 other women in a similar manner.
Andrews then filed suit against Marriott International, West End, and Windsor Capital Management for negligence, negligent infliction of emotional distress, and invasion of privacy for revealing that she was a guest at the hotel, revealing her room number, and ultimately facilitating Barrett’s conduct.
She also sued Barrett for invasion of privacy for recording her during moments when she had “the greatest expectation of privacy” and for distributing those recordings.
A judge dismissed Marriott International from the suit, claiming the franchiser could not be held responsible for security at a local hotel.
Andrews’ case against West End, Windsor, and Barrett went forward, however, and a jury found the hotel owners and operators guilty of negligence and Barrett guilty of invading her privacy.
The jury awarded her $55 million of the $75 million she requested in damages. Barrett was found 51 percent at fault, making him responsible for paying $28.05 million in damages, with West End and Windsor splitting the remaining $26.95 million. (Andrews v. Marriott International, Davidson County Circuit Court, No. 11C4831, 2016)
Discrimination. The Chicago Police Department (CPD) will pay more than $2 million in back pay and pension benefits to settle allegations by the U.S. Department of Justice (DOJ) that it discriminated against entry-level police officer applicants.
During the CPD’s 2006 hiring cycle, it used a 10-year continuous U.S. residency requirement to screen entry-level police officer applicants. CPD implemented this requirement to conduct “adequate background investigations of applicants, because CPD does not have sufficient investigative resources to conduct background investigations in foreign countries” and doing so “could adversely impact applicants from countries in political or other disarray,” according to court documents.
Glenford Flowers, Masood Khan, and other probationary police officer applicants applied for positions with CPD while it was using this residency requirement. They were not hired because they did not meet the requirement, despite meeting other qualifications to become police officers. When they brought this to the DOJ’s attention, it launched an investigation and filed a suit against the CPD.
The DOJ alleged that the residency requirement “disproportionately removed applicants born outside of the United States from consideration in the hiring process and was not related to the job,” making the practice a violation of Title VII of the Civil Rights Act of 1964, it said in the suit.
The DOJ further claimed that CPD engaged in a pattern or practice of discrimination on the basis of national origin by “pursuing policies and practices that discriminate against individuals born outside the United States…that deprive foreign-born individuals of employment opportunities because of their national origin.”
CPD denied the allegations, and has since discontinued its 10-year residency requirement. It now uses a five-year residency requirement to screen entry-level police officer applicants.
After negotiations with the DOJ, CPD agreed to a settlement to dismiss the charges. Along with back pay and pension benefits worth more than $2 million, the settlement provides priority hiring relief for some applicants who were denied employment with CPD under the 10-year residency requirement. The settlement also requires Chicago to evaluate whether its five-year residency requirement complies with Title VII.
This settlement, however, is separate from the DOJ’s investigation into allegations about CPD’s methods of policing and use of force. (U.S. v. City of Chicago, U.S. District Court for the Northern District of Illinois Eastern Division, No. 16 C 1969, 2016)
Disaster Relief. President Barack Obama signed legislation into law requiring the Federal Emergency Management Agency (FEMA) to develop and implement a plan to control and reduce administrative costs for delivering assistance for major disasters.
Under the law (P.L. 114-132), FEMA is required to compare the costs and benefits of tracking administrative cost data for major disasters by public assistance, individual assistance, hazard mitigation, and mission assignment programs. It must track that information and clarify FEMA guidance and minimum documentation requirements for a direct administrative cost.
FEMA must then submit to Congress by November 30 each year until 2023 a report on the total amount spent on administrative costs. The reports will include assessments of FEMA’s plans, analysis of whether FEMA is achieving its strategic goals for administrative costs, and actions FEMA can improve upon.
Prisons. President Obama signed legislation that requires the director of the Bureau of Prisons to issue oleoresin capsicum spray (pepper spray) to designated individuals.
The law (P.L. 114-133) requires the director to issue the spray to any bureau officer or prison employee who may respond to an emergency situation in the prison. The law also allows the director to distribute the spray to other prison officers and employees as he or she deems appropriate. Minimum and low-security prisons are excluded from the requirement.
Officers and employees designated to use the spray must first be trained on how to use it, and are required to undergo annual training on using the spray. They are then authorized to use the spray to reduce acts of violence committed by prisoners and prison visitors against themselves, other prisoners and visitors, and bureau officers and employees.
Terrorism. France’s lower house of Parliament passed a bill that would punish technology company executives for refusing to provide investigators with data in terrorism-related cases.
If enacted, the bill (No. 3515) would allow companies operating in France to be fined up to €350,000 (about $400,000) and its executives to be jailed for up to five years if they deny investigators access to data requested in terrorism-related cases. Individuals who refuse to share information related to the investigation could also be sentenced to two years in jail and fined €15,000 (about $17,000).
The bill now moves to the upper house of Parliament for consideration.
New South Wales
Protests. New South Wales enacted legislation that gives police greater powers to search without warrants, seize items, and fine protestors. The act was passed in an effort to crack down on mining and coal seam gas protestors, who were chaining themselves to equipment to stop production.
Under the Inclosed Lands, Crimes, and Law Enforcement Legislation Amendment (Interference) Bill 2016, the maximum penalty for unlawful entry on private business property increased from AUD 550 to AUD 5,500. This applies to individuals who enter lands on which a business or undertaking is being conducted and interfere with—or attempt to interfere with—the conduct of the business, or do anything that increases serious risk to the safety of people on those lands.
Additionally, the law allows police officers to search suspects on reasonable grounds if they think the person, vehicle, vessel, or aircraft they are using has “anything that is intended to be used to lock-on or secure a person to any plant, equipment, or structure” to interfere with a business’s conduct.
Police officers are able to conduct these searches without warrants, and seize and detain all or part of “a thing found as a result of a search” that the “police officer suspects on reasonable grounds is a thing” that could be used in a manner to increase serious risk to the safety of any person.
Critics, however, say the law could interfere with people’s human rights and liberties.
Elsewhere in the Courts
For the first time, FIFA said that votes were bought in World Cup hosting decisions and is seeking to claim bribe money seized by U.S. federal prosecutors. FIFA, in a recent court filing, asked for a large share in restitution from more than $190 million forfeited by soccer and marketing officials who have pleaded guilty in the corruption case, saying it is a victim of corrupt individuals. “The convicted defendants abused the positions of trust they held at FIFA and other international football organizations and caused serious and lasting damage to FIFA,” current FIFA President Gianni Infantino said in a statement accompanying the filing. (U.S. v. Hawit, U.S. District Court for the Eastern District of New York, No. 15-cr-252, 2016)
A Minnesota-based medical device and equipment manufacturer will pay more than $1 million to settle an age and sex discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC charged that the manufacturer engaged in systematic hiring discrimination when it hired more than 70 individuals as sales representatives, but not a single applicant who was female or more than 40 years old. This practice violated Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act. The manufacturer will pay $1,020,000 to a class of applicants rejected for sales positions because they were women or more than 40 years old, and to a former human resources employee who notified the EEOC about the discriminatory practices. The manufacturer will be required to revise its hiring practices. (EEOC v. PMT Corporation, U.S. District Court for the District of Minnesota, No. 0:14-cv-00599, 2016)
A federal jury found an Air Force veteran guilty of attempting to provide material support to the Islamic State of Iraq and the Levant (ISIL) and obstructing an official proceeding in the first conviction of its kind. Tairod Nathan Webster Pugh, 48, served in the Air Force as avionics instrument system specialist and trained in the installation and maintenance of aircraft engines, navigation, and weapons systems. In January 2015, Pugh traveled from Egypt to Turkey to attempt to cross the border into Syria to join ISIL and engage in jihad. Turkish authorities denied him entry and returned him to Egypt. He was then deported to the United States where the FBI monitored him and he was later arrested. Pugh faces a maximum sentence of 35 years in prison. (U.S. v. Pugh, U.S. District Court for the Eastern District of New York, No. 15-CR-116, 2016)