March 2019 Legal Report
Use of force.
Florida’s Stand Your Ground law provides police officers immunity from prosecution and justifies their use of deadly force, according to the Florida Supreme Court.
The ruling stems from a lawsuit brought after Broward County Sheriff’s Deputy Peter Peraza shot and killed Jermaine McBean in 2013. In the lawsuit, Peraza claimed that McBean pointed a gun at him. McBean was walking home holding an air rifle that he had just purchased at a pawn shop.
Someone called 911 to report McBean walking through their neighborhood holding a firearm. Peraza and two other deputies responded to the call, arrived on the scene, and commanded McBean to stop. McBean continued to walk—allegedly because he was wearing headphones and could not hear the officers.
Peraza claims that after McBean walked into his apartment complex with the deputies behind him, he turned toward the deputies and pointed the air rifle at them. Peraza—assuming the air rifle was a real gun—then shot McBean twice, killing him. McBean’s family contests the sequence of events and claimed that the use of deadly force was unjustified.
A grand jury indicted Peraza for manslaughter, but a trial judge dismissed the case based on Peraza’s argument that he should be granted immunity from prosecution under Florida’s Stand Your Ground self-defense law.
The law says that “a person is justified in the use of deadly force and does not have a duty to retreat if…he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another…” according to court documents. The law also grants immunity from criminal prosecution or civil action for a “justifiable use of force.”
The state appealed the trial judge’s decision, and ultimately the case went before Florida’s Supreme Court. It ruled in favor of Peraza because Stand Your Ground provides immunity to any person who acts in self-defense.
“Put simply, a law enforcement officer is a ‘person’ whether on duty or off, and irrespective of whether the officer is making an arrest,” the court wrote in its opinion. “Although neither of the two statutes defines the word ‘person,’ it must be given its ‘plain and ordinary meaning.’”
Because of this, “law enforcement officers are eligible to assert Stand Your Ground immunity, even when the use of force occurred in the course of making a lawful arrest,” the court added. (Florida v. Peraza, Supreme Court of Florida, No. SC17-1978, 2018)
German automotive company IAV GmbH pleaded guilty to a felony and will pay a $35 million fine for its role in a Volkswagen AG corruption scheme to sell diesel vehicles in the United States by cheating on emissions tests.
The U.S. Department of Justice (DOJ) charged IAV with one count of conspiracy to defraud the United States and Volkswagen’s U.S. customers by violating the Clean Air Act and misleading the Environmental Protection Agency and others about whether their vehicles complied with U.S. vehicle emissions standards.
“IAV and its co-conspirators knew the vehicles did not meet U.S. emissions standards, worked collaboratively to design, test, and implement cheating software to cheat the U.S. testing process, and IAV was aware that VW concealed material facts about its cheating from federal and state regulators and U.S. customers,” according to the DOJ.
“By at least 2008, an IAV manager knew the purpose of the defeat device software, instructed IAV employees to continue working on the project, and directed IAV employees to route VW’s requests regarding the defeat device software through him; the manager was involved in coordinating IAV’s continued work on it,” the DOJ said.
As part of the plea agreement, IAV will plead guilty to the crime, will serve probation for two years, will be placed under an independent corporate compliance monitor for two years, and will fully cooperate with the ongoing DOJ investigation and prosecution of individuals involved in the Volkswagen scheme.
IAV’s guilty plea is one of the most recent developments in the DOJ’s investigation. Volkswagen previously pleaded guilty to criminal charges in 2017 that it deceived U.S. regulatory agencies by installing defeat devices in diesel vehicles emissions control systems that were designed to cheat emissions tests.
Volkswagen paid a $2.8 billion criminal fine and agreed to an independent corporate compliance monitor for three years. The DOJ also charged eight individuals for their role in the scheme; two of them pleaded guilty and were sentenced. The other six are thought to be in Germany. (U.S. v. IAV GmbH, U.S. District Court for the Eastern District of Michigan, No. 16-CR-20394, 2018)
UBS Financial Services (UBSFS), Inc., will pay a $14.5 million civil penalty for willful violations of the Bank Secrecy Act.
The U.S. Treasury Department’s Financial Crimes Enforcement Network (FinCEN) found that UBSFS failed to develop and implement appropriate, risk-based anti-money laundering (AML) programs to address the risks associated with accounts for traditional brokerage and banking services.
“UBSFS failed to implement appropriate policies and procedures to ensure the detection and reporting of suspicious activity through all accounts—particularly for those accounts that exhibited little to no securities trading,” FinCEN said in a press release. “The firm did not adequately structure its AML program to address the use of securities accounts for the purpose of moving funds rather than trading securities.”
FinCEN also found that UBSFS failed to provide resources to ensure AML compliance, including inadequate staffing that led to a backlog of alerts and decreased the firm’s ability to file suspicious activity reports (SARs) in a timely matter.
“Law enforcement investigators rely upon SARs to recognize and pursue financial criminals and other bad actors to protect our national security and our people from harm,” FinCEN said. “Allowing a backlog of transaction alerts and delays in filing SARs stifles the ability of law enforcement agents to fulfill this critical national security mission.”
Along with paying the civil penalty, UBSFS invested in Bank Secrecy Act and AML staffing and technology, upgraded its AML surveillance monitoring system, enhanced oversight of its AML monitoring, enhanced training for AML compliance staff, and implemented a new quality assurance system. (In the Matter of: UBS Financial Services Inc., U.S. Department of the Treasury Financial Crimes Enforcement Network, No. 2018-03, 2018).
The DOJ issued a new rule that bans bump stocks, devices that make semiautomatic rifles fire in sustained, rapid bursts—similar to an automatic weapon.
The new regulation bans the sale or possession of bump stocks. Anyone who owned these devices had until late February to destroy them or turn them in to the U.S. Bureau of Alcohol, Tobacco, Firearms, and Explosives.
“With limited exceptions, the Gun Control Act, as amended, makes it unlawful for any person to transfer or possess a machine-gun unless it was lawfully possessed prior to the effective date of the statute,” according to the regulation. “The bump-stock-type devices covered by this final rule were not in existence prior to the effective date of the statute, and therefore will be prohibited when this rule becomes effective.”
Bump stocks were used in the mass shooting in Las Vegas in 2017, where a gunman opened fire to kill 58 people and wound hundreds of others at a country music festival. U.S. President Trump directed DOJ officials to find a way to ban the devices following the mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida, even though bump stocks were not used to carry out that shooting.
The European Parliament Committee on the Environment, Public Health, and Food Safety reached a deal to move legislation forward that would aid EU member states’ disaster response.
The draft law would create a “rescEU” reserve of resources, including field hospitals, emergency medical teams, high-capacity pumps, and forest fire-fighting plans. When a disaster strikes, the rescEU, following a decision by the European Commission, would step in with additional resources to help the affected member states.
“We managed to work quickly to be ready before next summer and avoid another Greece 2018 and Portugal 2017,” said lead negotiator Elisabetta Gardini of Italy in a statement. “Effective means and tools were needed to save lives.”
New York City
The New York City Council passed legislation that creates new requirements for lactation rooms for employees.
The law, which goes into effect on 18 March 2019, requires employers with at least four employees to create lactation rooms for employees and maintain a written policy on their accommodation that is made available to employees when they are hired.
Elsewhere in the Courts
Technical Marine Maintenance Texas LLC and Gulf Coast Workforce LLC will pay $857,868 in civil penalties for violating the Immigration and Nationality Act (INA). The two companies discriminated against workers based on their citizenship status during the employment eligibility verification process by asking U.S. citizens to produce IDs and Social Security cards but asking for immigration documents from non-U.S. citizens. “The INA prohibits employers from limiting workers’ choice of documentation to present for employment verification based on the workers’ citizenship, immigration status, or national origin,” according to the U.S. Department of Justice. (U.S. v. Technical Marine, U.S. Department of Justice Executive Office for Immigration Review Office of the Chief Administrative Hearing Officer, No. 17B00089, 2018)
The owner-operator of more than 12 Subway franchises will pay $80,000 to settle a sexual harassment lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC allegedly found that a former general manager sent text messages to two 17-year-old female applicants, offering them positions in exchange for sex. The teenagers did not comply, and they were not hired. The franchises’ owner will pay the penalty, revise its policy for prohibiting sexual harassment, conduct anti-harassment training, post a public notice about the settlement, and report all sexual harassment complaints to the EEOC. (EEOC v. Draper Development, LLC, U.S. District Court for the Northern District of New York, No. 1:15-cv-877, 2018)
Wilmington Trust Corporation will pay $700,000 to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The corporation had a policy of placing employees with disabilities or impairments on involuntary leave unless a medical provider cleared the employee to return to work with no restrictions. This denied employees of reasonable accommodations for disabilities, an alleged violation of the Americans with Disabilities Act. (EEOC v. Wilmington Trust Corporation, U.S. District Court for the Southern District of New York, No. 17-cv-05077, 2018)