Archive for the 'Personal Injury' Category

Nude Recordings of Minors Showering Not Lascivious Enough to Constitute Child Pornography

A Tennessee man’s sexual exploitation convictions have been overturned by the state’s highest court because his nude recordings of minors weren’t lascivious enough to be considered child pornography. Tennessee’s sexual exploitation laws are basically a reworded version of other production of child pornography laws, but unlike other states, Tennessee doesn’t consider the viewer’s intent of sexual arousal an element of the crime. Because of this distinction, a man’s recordings for his own perverse satisfaction ended up landing him a conviction for mere spying.

Thomas Whited was arrested for hiding a camera phone in the bathroom and bedroom used by his 12-year-old daughter. The phone was positioned in the bathroom to record his daughter as she prepared for a shower and after-shower bathroom activities.  The phone in the bedroom was planted just before Whited’s daughter and her 14-year-old friend entered the bedroom to change out of their bikini swimsuits into dry clothes.  The phone was eventually found by Whited’s wife, who reported her husband to the police after finding several videos of the young girls on the phone. Restroom

Whited was convicted of nine counts of especially aggravated sexual exploitation of a minor, one count of attempt to commit that offense, 13 counts of observation without consent, and one count of attempt to commit that offense. Whited appealed his case to the Tennessee Supreme Court, mainly on the fact that the videos didn’t include sexual activity and, because of that, couldn’t be considered sexual exploitation under the state’s statute, nor could they be considered lascivious.

If you have an image/video of a naked individual, at what point does that photo become obscene and considered child pornography?

Many Laws Require the Presence of Sexual Activity

Typically, images are considered child pornography when there is a visual depiction of sexually explicit conduct involving a minor. That’s a pretty broad definition though, so the question comes down to how sexually explicit conduct is defined.

The federal legal definition of sexually explicit conduct, in which the Tennessee court applied their own similar definition, doesn’t require images to depict sexual activity in order to be considered sexually explicit, but rather the federal code only requires a “lascivious exhibition of the genitals or pubic area of any person.”

What does lascivious exhibition even mean, then? Certainly, a word that’s meaning is, in a way, subjective. Black’s Law Dictionary defines lascivious as,

“tending to excite lust; lewd; indecent; obscene; relating to sexual impurity; tending to deprave the morals in respect to sexual relations.”

Despite the fact that what tends to excite an individual is subjective to each person, there are general ideas of what pornography looks like. In fact, Justice Potter Stewart so famously described his threshold for obscenity as not definable, but rather,

“…I know it when I see it…”

Mere Nudity Isn’t Enough

Mere nudity isn’t enough to establish lascivious exhibition of private body areas. If you have a hard time wrapping your head around this, case law has previously pointed out the example of innocent photographs of naked children in the bathtub.  How do you know it when you see it here?  It would be hard to distinguish one from the other when you’re looking at merely a naked person.

Courts developed what they called the Dost factors, which take many things into consideration when determining whether there’s lascivious exhibition, but the Tennessee Supreme Court rejected those standards and instead they looked at comparative cases and found these considerations significant in the case at hand:

  • The level and nature of the nudity in the videos,
  • The emphasis on the minor victim’s private body areas,
  • The fact that the victims were engaged in everyday activities ordinarily performed nude,
  • The defendant’s audible comments and interactions with the victims recorded on the videos, and
  • the defendants’ recorded actions depicting his voyeurism in setting up the camera.

What did the court say? The nude recordings of the daughter showering were “everyday activities ordinarily performed nude” and because the videos didn’t appear to be focused solely on the children’s private body parts, they weren’t necessarily lascivious exhibition.

Did Whited luck out on a technicality? It’s not an issue of whether the court got it wrong, but rather a question of whether Tennessee lawmakers will be redrafting their statutes to have a more inclusive definition of what constitutes child pornography.  I imagine they will after this case.  Had the Tennessee statute been inclusive of language defining sexual exploitation or pornography to include an element of intent of sexual arousal/gratification, the issue of lasciviousness would have been moot at that point.

KFC’s Colonel Accused of a Deep-Fried Falsehood

First Starbucks was sued for not putting enough liquid in their cups, and now KFC is being sued over not providing enough fried chicken in its buckets. A New York woman has filed a lawsuit against Kentucky Fried Chicken for false advertisement with regard to just how many pieces were in her bucket.

Anna Wurtzburger decided to file a lawsuit after she was disappointed in the number of pieces of chicken that she was given as part of her “Family Fill Up” meal. Ms. Wurtzburger ordered the meal, expecting to receive what she saw in a commercial, which featured a KFC bucket overflowing with fried chicken. Instead, all she got was 8 pieces of chicken, which did not even fill up the entire bucket.

When Ms. Wurtzburger contacted Kentucky Fried Chicken to complain about her portion size, the company responded that the chicken appeared emerging from the bucket so as to display it in all of its deep-fried glory. The overflowing bucket was never meant to be an accurate depiction of the portion size that would be served with the meal. Well, that did not sit well with Ms. Wurtzburger, who decided to sue Kentucky Fried Chicken for $20 million in response to her lack of chicken.

False advertising is frowned upon throughout the United States, and every state has at least one law that requires advertising to not be intentionally misleading. Section 350 of New York’s General Business Law is what prohibits false advertising in New York. Under New York law, false advertising is defined as advertising of an item that is misleading in a material respect. If an advertisement is found to be false, then the punishment can be an injunction, a fine of up to $5000, actual damages, three times the actual damages up to $10,000 if the advertiser acted willfully or knowingly, and attorney’s fees.

In order to find KFC guilty of committing false advertisement when the company aired the “Family Fill Up” meal commercial featuring the overflowing fried chicken bucket, it must be determined that reasonable people could be misled into believing that they will receive a bucket of chicken that is indeed overflowing if they order the “Family Fill Up” meal. If it is determined that a reasonable person would have expected to receive an overflowing bucket of chicken based upon seeing the commercial, then Kentucky Fried Chicken may have committed false advertising if it can also be proven that the buckets are normally not filled to the point of having pieces of chicken rise above the top of the bucket.

The actual damages that Ms. Wurtzburger would receive would likely just be the difference between how much she paid for the meal and how much it would have cost her to have a bucket overflowing with chicken, which probably would not be a lot of money. However, the intent to display the chicken emerging from the bucket in the commercial indicates that KFC knowingly portrayed the bucket as overflowing in its commercial, which would entitle Ms. Wurtzburger to three times the amount of her actual damages. Furthermore, Kentuckey Fried Chicken may also be on the hook for covering the costs of Ms. Wurtzburger’s legal representation and for a fine paid to New York state.

Kentucky Fried Chicken can counter Ms. Wurtzburger’s argument that she was misled by the image of the overflowing chicken bucket with an argument that no reasonable person would mistakenly think that they would receive an overflowing bucket because a reasonable person would not simply go off of the image portrayed in the commercial to determine just how many pieces they would receive as part of the meal. The company can present evidence showing that the vast majority of people do not believe that their bucket of chicken will consist of more than eight pieces or that the bucket would not be overflowing with chicken. KFC can also show that it has shown similar images in the past as part of their advertisements with no ill effects or accusations of engaging in false advertising.

Whether or not KFC truly intended for those buckets to be perceived as being overabundant in the commercial, the company may now think twice about how it shows off its delectable chicken in advertisements, even if the company ends up not having to pay $20 million to Ms. Wurtzburger over the lack of anticipated chicken. At the very least, Kentucky Fried Chicken may deem it necessary to make it painfully clear just how many pieces are included in each meal in every single commercial it airs.

Can a Wife Be Charged as an Accessory for Her Husband’s Sexual Assault?

At what point is someone an accessory to a crime? More specifically, does an attempt to cover up someone’s sexual assault make you an accessory to that crime.

There’s quite the controversy surrounding many of Donald Trump’s comments regarding women and claims of sexual assault, but Hillary Clinton is no exception to the scrutiny surrounding these issues. There’s been plenty of negative media following Hillary around regarding her alleged attempt to cover up her husband’s past sexual assault allegations.

Juanita Broaddrick has revived her allegations against the Clintons. If you aren’t familiar with that name, back in 1999 Broaddrick went on national television and alleged that in the 1970’s Bill Clinton raped her in a hotel room. Many doubt the truth of Broaddrick’s allegations, but the rape allegations have resurfaced right before the 2016 Presidential elections—along with some new claims. Broaddrick has expressed her support for Trump because she claims not only did Hillary know about the 1970’s rape, but that Hillary tried to threaten her into remaining silent about it.

This has of course caused an outrage and many are now accusing Hillary of being an accessory to a sexual assault. If the allegations were true, could simple knowledge of the crime be enough to warrant accessory charges? What about threats to remain silent about the crime?

What Exactly Constitutes an Accessory to a Crime?

A person can be considered a party to a crime for a number of different reasons; they can participate in the crime before, during, and/or after the crime is committed. The terms aiding and abetting and accessories are sometimes used interchangeably, but they can be quite different.

Parties to crimes are classified as either a principal or an accessory. The key distinction is what they do to participate in the crime and when they contribute to the crime. Generally, an accessory gets involved after the crime whereas aiding and abetting a crime would be assisting in the criminal act prior to or during the crime. Helping someone evade capture, prosecution, or simply helping to conceal the crime would all be actions that would warrant charges of an accessory after the fact.

Assistance can come in many different forms, though, and doesn’t have to just be actions of concealment or physical assistance. Financial assistance would be another obvious way a person could be an accessory to a crime, but many may not realize providing emotional assistance, depending on the circumstances, could also factor into a prosecution.

Prosecutors Need to Be Able to Prove Certain Elements First

Of course, every state is different, but there are general elements that need to be proven in order for a state to bring a case against someone as an accessory after the fact. The first is the actual commission of a felony, but probably the most important piece is knowledge. Not only must the person possess awareness of the crime, but they must also have knowledge of the assailant’s identity. A person cannot unwittingly help a felon avoid arrest if they had no knowledge of the crime or no knowledge of who the person was in the first place.

For example, housing a criminal wouldn’t warrant an accessory charge if the person had no knowledge of the crime ever taking place and no knowledge of who the person was they were housing. However, housing the criminal to evade police, despite having the knowledge they committed a crime, would warrant accessory charges even if the person took no part in the crime itself.

To sum it up, if a wife, or any person for that matter, helped a sexual assailant conceal their crime then, yes, that person could be charged as an accessory. Threatening a victim to keep them silent would warrant accessory charges because it’s active concealment. It gets trickier, though, when you start talking about simple knowledge of the crime without any active concealment or help to evade prosecution.

Judge Dismisses Personal Injury Case Against Gun Manufacturer

A federal court has dismissed a personal injury lawsuit directed at the gun manufacturer Smith & Wesson. The plaintiff was handling a gun when it accidentally went off, amputating his finger. The plaintiff’s claim is based on the idea that the gun had a mechanical defect and the powerhouse gun manufacturer should be held responsible.

Product Liability

Product liability refers to a manufacturer or seller being held liable for placing a defective product into the hands of the consumer. The vast majority of product liability cases are Gun Storedetermined at the state level. Product liability claims can be sought out under the theories of negligence, strict liability, or breach of warranty. Under negligence, the plaintiff would have to show that the manufacturer, in this case, Smith and Wesson:

  1. had a duty of care owed to the plaintiff,
  2. there was a breach of this duty, and
  3. this breach actually caused the injury.

In plain English, Smith and Wesson obviously have a duty to ensure that their firearms do not have mechanical defects. The difficult part here is being able to show that when plaintiff was handling the gun, it was a defect rather than mismanagement by the plaintiff that actually caused the injury. The Court ultimately held that the injury was not caused by a defect. Smith & Wesson are not liable. Strict liability and breach of warranty would probably not apply here either.

The Benefit of the Doubt

The point of all this is that it is quite difficult to show that a manufacturer of a product can be held liable. There are some circumstances where benefit will be given to plaintiff. Under a doctrine known as res ipsa loquitur, the burden of proof will shift to the defendant to show that they are not liable. It makes the path easier for the plaintiff. However, this doctrine is rarely invoked. For it to come into effect, the injury must have occurred because of someone’s negligence.

At the end of the day, it is quite difficult to pin the blame on the manufacturer because they are so far removed from the actual incident — an actual defect must be present before they are held accountable. Even if the plaintiff is somehow successful on his claim, Smith & Wesson could invoke comparative or contributory negligence as a defense. Based on the facts presented, the plaintiff was somewhat careless with the handling of the gun. This is not to say that there was not a defect but that there very well could have been mishandling of the firearm.

For all intents and purposes, unless the legal framework is reworked to give more deference to the plaintiff, manufacturers will win the majority of product liability cases. As mentioned earlier,  there are so many chains of distribution involved in the product that it will be quite difficult to reach the manufacturer who has no involvement in the actual cause of action.

Blowing the Whistle: Former Illinois Police Officer’s Retaliation Lawsuit

The police are there to ensure that laws are neutrally enforced. However, when police start showing favoritism to those with political connections, it often must be the police themselves who bring it to the attention of the public.  This was the situation which, at least allegedly, faced former Village of Orland Hills police officer Mr. David Kristofek.

Mr. Kristofek has been embroiled in a lawsuit with both the Village and its police chief for several years, accusing them of firing him in retaliation for his reporting inappropriate police behavior to the FBI. After narrowly avoiding dismissal several times, his case has just recently  passed the summary judgement phase.

The Village of Orland Hills Turns a Blind Eye

The facts certainly don’t look good for the Orland Hills police. After a traffic stop revealed that that a young man named Alonzo Marshall was driving a car with a suspended registration due to lack of insurance, Mr. Kristofek—along with two other police officers—arrested the man per police department policy.

However, after a slew of phone calls between Mr. Marshall, his mother, the Mayor of Village of Orland Hills, and the police chief Thomas Scully, Mr. Marshall was released and all record of the arrest was confiscated from Mr. Kristofek and deleted from police computers.  When Mr. Kristofek complained to the deputy police chief about the situation, he was told ““Did you not understand what you were [expletive] told?”  The deputy later told Mr. Kristofek that the situation was “above you and me.” Body Cam

Several months later, Mr. Kristofek attended a training seminar on official police misconduct. Ironically, the seminar included a hypothetical with near identical facts to the incident with Mr. Marshall and described it as official misconduct.  Mr. Kristofek grew concerned that he may be criminally liable for his actions and sought legal advice on the issue.  He was advised to report the incident to the FBI and reached out to the other two police officers on the arrest to join him in reporting the misconduct.  The other two officers both declined and Mr. Kristofek reported the incident alone.  What the two officers did do, however, was inform the police chief—Mr. Scully—that Mr. Kristofek was speaking with the FBI.

After learning this, Mr. Scully called Mr. Kristofek to his office, had him confirm that he was speaking to the FBI, and offered him a choice to resign or be fired. Kristofek refused to tender his resignation and was fired.  Scully spoke with a Village Administrator who approved the firing.  The stated reason was that Kristofek “contacted several members of this agency, telling them that the Chief of Police was a criminal and was going to be indicted,” and had “accused the Village of being corrupt.”

Mr. Kristofek filed a retaliation lawsuit against both Police Chief Scully and the Village of Orland Hills itself shortly after this.

Retaliation Explained

Retaliation, at its most basic, is where an employer takes negative employment action (firing, demoting, etc.) against an employee for some sort of protected conduct. Most retaliation lawsuits deal with an employee being fired for reporting an employer’s illegal employment practices.  However, it can apply where an employer takes negative employment action for basically any action an employee takes that is protected by law.

Here, Mr. Kristofek is making a First Amendment retaliation claim, arguing that he—as an employee of the government—was fired for exercising his right to free speech. This a claim that only really applies to public employees as private employers have a great deal of leeway when it comes to firing you for speech they don’t agree with.

In order to succeed in a First Amendment retaliation claim, a public employee such as Mr. Kristofek must show three things:

  1. their speech was constitutionally protected,
  2. this protected speech was the cause of negative employment action taken against them by their employer, and
  3. the employee suffered a harm as a result of this negative employment action.

In this case, the last bit isn’t particularly controversial; if you lose your job, you have been harmed.  The evidence also seems to point towards Mr. Kristofek being fired over speaking to the FBI.  This means that the more complicated issue is whether his speech was protected.

It certainly seems like it should be. If police aren’t protected when they blow the whistle on the misconduct of their fellow officers, it sets a heck of a bad precedent.

Mr. Kristofek’s Case So Far

The district court has dismissed Mr. Kristofek’s case not once, but twice, ruling against him on essentially every factor from whether he was speaking pursuant to his duties to whether the speech was even of public concern. Fortunately, the 7th Circuit Appeals court has reversed the district court both times and salvaged Mr. Kristofek’s lawsuit. This most recent time, the 7th Circuit has even assigned a new district court judge to review the case.

Scully successfully argued to the district court that reporting police misconduct is part of a policeman’s duties and thus speech in this vein is not made as a private citizen. He also argued that the speech was not of public concern, the interest in efficient police duties outweighed the interest in reporting to the FBI, and that the allegations themselves were baseless.

The 7th Circuit Appeals Court was buying none of it. Not only did they point out that courts have always considered reporting corruption a matter of serious public concern, they rejected Sully’s argument that reporting corruption was part of Kristofek’s job. This argument seems particularly silly; it amounts to an argument that Kristofek was fired for doing his job. However, the court rejected it on the grounds that there was no evidence that Kristofek had a duty as an officer to report the incident. The truth of the statements was ruled to be irrelevant because Kristofek’s speech would be protected, regardless of truthfulness, unless he actually knew or was reckless in not knowing that his allegations were false.

While the court felt that the interests weighed in favor of Mr. Kristofek in this case, they made it clear that there could be some cases where the interest in reporting potential misconduct could be outweighed by the disruption it could cause. Misconduct, as a strong public concern, requires a particularly convincing reasons to outweigh the public’s interest. However, where there is little factual basis to the allegations, the court said that the public’s interest could be outweighed.

Preventing police corruption is extremely important, just like all government corruption. The people closest to that corruption are the public employees who work around it.  It’s important that we zealously protect their ability to report misconduct because these employees may be the only people who could report such conduct.  This case is far from over, but the 7th Circuit Appeals court has helped ensure that public employees are receiving the protection they need.



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