Author Archive for Jason Cheung

Waterpark Co-Owner Charged With Reckless Murder In Connection With Boy’s Death on Ride

In 2016, 10 year old Caleb Schwab was decapitated during a waterslide. Caleb’s raft became airborne during the ride and hit hoops and netting overhead. Two other adults were injured and Caleb was killed.

Co-owner of Schlitterbahn Waterparks and Resorts, Jeffrey Henry, was arrested for aggravated battery and aggravated child endangerment. The Kansas Attorney General’s office arrested ride designer John Schooley as well, and charged both Henry and Schooley with reckless second-degree murder.

According to the indictment, Henry dropped out of high school and had no technical or engineering background. However, he controlled many decisions regarding Schlitterbahn construction and design projects.

The Attorney General claims the park rushed to complete the world’s tallest waterslide to impress producers of Xtreme Waterparks, a Travel Channel show. Schwab’s death was believed to be an isolated incident until whistleblowers claimed their bosses had covered up prior accidents.

Schwab’s family received a $20 million settlement. The charges against Henry are being filed by the state of Kansas, which is independent from the victims.

waterparkShould Corporations Be Criminally Liable?

Second degree murder is defined in most jurisdictions as non-premeditated murder – i.e. the murder was intentional, but not premeditated. This usually involves “crimes of passion,” like a husband who comes home and finds his wife in bed with another man.

The other type of second degree murder occurs when the defendant acts in a manner that shows complete disregard for life. A man who points a loaded gun at everyone he comes across in public and then accidently shoots someone might not have planned to kill someone. However, he had to have known that using his gun like that might result in a dead body.

It would unjust to hold a person responsible for a crime that he or she did not commit. Corporations and other business entities are organizations with multiple individuals, many of whom may not know what other employees are doing. The law only imposes criminal liability on businesses in two instances: first, when the employer is vicariously liable for an employee’s criminal actions.

However, the standard for criminal vicarious liability is higher than civil vicarious liability – the employer must authorize the criminal acts, rather than the employee acting in the employer’s name. Second, the business owner themselves may be held liable if they committed the criminal acts personally.

In this case, prosecutors are alleging that Henry, as an owner, was acting so recklessly that any reasonable person would have known that it would endanger someone’s life. Henry was making important design and construction decisions even though he had no background in engineering.

His decisions were likely influenced by a desire to impress television producers instead of public safety. Henry also knew that the ride was dangerous as employees reported he had helped cover-up similar accidents. While Henry might not have wanted anyone to die, he had to know that his actions would almost certainly lead to death(s).

Business’s Increasing Responsibility to Society

The biggest concern is increased criminal liability for business owners. The goal of every business is profit. Some business owners will put public safety as a lower concern than making money.

There should certainly be consequences if they do not sufficiently prioritize safety, but those consequences were restricted to civil court through personal injury and product liability laws. Criminal courts should only be used if the actors were intentionally malicious.

On the other hand, it is arguable that society has been too lenient on businesses. Big banks played a large role in 2008 recession, but few were punished. Many received bonuses for tanking the global economy.

Recent events reveal that social media companies like Facebook will abuse their consumer’s privacy if left alone. Perhaps if executives were liable for criminal liability as well as financial liability we’d have less corporate and business abuses than we’ve had so far in the 21st century.

Was the Former FBI Deputy Director McCabe Legally Terminated?

FBI Deputy Director McCabe announced his resignation on January 29, 2018. He went on paid leave until March 18, when he would officially retire. Attorney General Sessions terminated McCabe on March 16, thereby removing McCabe’s pension.

Sessions said he was following the recommendation of the FBI’s Office of Professional Responsibility, which claimed “Mr. McCabe had made an unauthorized disclosure to the news media and lacked candor – including under oath – on multiple occasions.” The report that Sessions cited has not been publicly released.

There are several factors that cloud McCabe’s termination. First, Mr. Trump has constantly taunted McCabe on Twitter, before his resignation and after his termination. McCabe has solid evidence if he wants to sue and argue that his termination was the result of a personal grudge instead of an objective investigation.

Second, McCabe was a witness who observed James Comey documenting his meetings with Mr. Trump. The Special Counsel could prosecute McCabe’s termination as witness tampering and intimidation. Finally, McCabe had approved an investigation into Jeff Sessions for perjury when he testified to Congress last year. If true, McCabe’s termination could be retaliation by the Attorney General.

mccabeEmployment Law Would Support McCabe’s Claims

Employment in the United States is usually at-will. This means that either employer or the employee can end the relationship at any time for any reason. The exception is if the employer terminates the employee for an illegal reason, such as a breach of contract or racial discrimination.

However, many government positions, especially positions that directly report to elected offices, do not serve at-will. Government positions are protected to ensure that political bias does not affect operations of government that should be non-partisan, such as military defense or criminal investigations. They can only be terminated for good cause.

Good cause” is essentially the opposite of at-will employment. At-will employment means that an employee can be fired for any reason except for an illegal reason. Good cause means the employer can only terminate the employee if the employer has a legal reason for doing so.

The Justice Department would claim that it had good cause for terminating McCabe – leaking classified information to the media and then denying it while under oath. However, McCabe is denying the allegations completely. Since no one has seen the report by the Office of Professional Responsibility, Sessions may be on thin ice with this decision. If McCabe sues and he is right, then McCabe’s termination would be invalidated and his pension restored.

McCabe would most likely argue that the allegations against him were a pretext. A pretext is a false reason given to fire an employee instead of the actual reason, because the actual justification is illegal.

McCabe could argue in court that he was really fired for all the reasons mentioned above: a President’s personal grudge against him, an attempt at witness tampering, and retaliation by an Attorney General who was afraid of the investigation that his target had authorized against him. Given that there was only two days left before McCabe’s resignation, the Trump Administration’s decision to terminate McCabe is legally very risky.

What Do Employees Get If They Win Their Lawsuit?

Although McCabe is a very high profile case, he is not unusual. According to the EEOC, 41,097 wrongful termination cases based on retaliation were filed in 2017. The average settlement is about $40,000, with 10% of settlements resulting in a million dollars for the employee. About 67% of wrongful termination trials in court are won by the employee.

Notably, very few cases result in the employee returning to work. First, employees are required to mitigate damages – they cannot do nothing and then demand back pay when they could have found another job. Second, a wrongful termination often means bad blood for both sides. Few people want the drama and potential hostility that may come after a lawsuit.

Finally, many states may require the employee to choose between a large settlement and returning to the original job. Most employers would replace the terminated employee right away. It would be unjust to fire the replacement just so that that wrongful terminated employee could return.

Uber Stops Self-Driving Cars After a Pedestrian is Killed

Uber has pumped the brakes on its self-driving cars program. 49-year-old Elaine Herzberg was killed by a self-driving Uber car on March 18. Dash cam footage shows that Herzberg was looking at the other side of the road as she was riding her bicycle when the car hit her.

The car was going 40 mph prior to the accident and did not slow down when it hit her. The Uber safety driver showed no signs of impairment and the weather was clear and dry. Neither the car nor the safety person saw her until she was struck.

In response, Arizona Governor Doug Ducey suspended Uber’s right to run self-driving cars in Arizona (the company had announced it would suspend its program prior to the announcement).  The suspension was a 180 degree turn on Governor Ducey’s part. After taking office in 2015, Ducey had welcomed high tech companies seeking to test autonomous cars, especially Uber.

Ducey issued executive orders compelling state officials not to enforce taxi licensing rules for self-driving cars. Ducey permitted Uber to test its vehicles in Arizona as long as there was a human driver ready to assume control should there be a need to. Ducey also gave Uber his blessing to operate fully driverless cars on university campuses in the state.

Ducey’s administration claims that his aggressive pursuit of Uber was part of the governor’s plan to poach high-tech companies from California. The Golden State has lead the country in high tech for the 21st century, but states across the country have been courting its companies with offers of tax breaks and other incentives.

Arizona’s pitch to Uber and other companies looking to test self-driving cars was less regulations to interfere with their operations. This was a sharp contrast with California, which had recently voted to impose additional restrictions on driverless cars.

uberUber argues that while the accident was tragic, it is all in pursuit of science. Safety and efficiency requires experimentation and there may be accidents along the way. However, emails obtained by the Guardian between Uber and Governor Ducey indicates that there may be more to the relationship than Ducey’s desire for a business-friendly environment.

Emails show that Uber offered Ducey shirts and office space in San Francisco as the Governor spearheaded deregulation in Arizona. Although Uber has already settled with Herzberg’s estate, the emails renew a new legal debate: who is liable for Ms. Herzberg’s wrongful death?

Is There Potential Liability for Uber and the State?

If Herzberg’s estate wants to pursue a lawsuit, there are two realistic claims: the safety driver in the car or Uber itself. Any claims against the state of Arizona and Governor Ducey would be protected by sovereign immunity. If Governor Ducey did anything illegal, it would be prosecuted by the state Attorney General’s office instead of a private citizen.

Although self-driving car cases are new, the case here is still analogous to a normal accident involving an employer licensed vehicle. Suppose that a UPS or FedEx driver hits a vehicle. UPS and FedEx would be vicariously liable for the injury it caused. Although the Uber vehicle was on auto-pilot, there was a human safety person behind there.

Video footage clearly shows the person was not paying attention when the accident occurred. Given that the person’s job was to take over in the event of an accident, the safety person had clearly failed his or her standard of care. Since the person was an Uber representative, Uber would be responsible for the safety person’s negligence.

Even without the vicarious liability of a careless employee, Uber would still be liable. Self-driving vehicle may be new, but defective product cases are not. If the auto-driving car was supposed to detect pedestrians and failed to do so, then the car, the product, was defective.

The main complication is that the users of the product usually bring a defective product suit, not the victims of it. This should not stop a defective product claim though, as there are plenty of lawsuits involving people injured by products that they didn’t purchase themselves.

One potential hitch in the pedestrian’s suit against Uber is that Herzberg was clearly jaywalking. Many states will bar the plaintiff from recovering if he or she contributed to the accident. However, Arizona is a comparative negligence state.

This means that Herzberg’s estate is not barred from recovery even if she were found to be 99% at fault. The recovery amount would be reduced by the percentage a jury would find the victim at fault though. Herzberg’s jaywalking might have cost her life, but it would only reduce the settlement her estate could recover.

Uber has struggled to teach the systems to adjust for unpredictable human behavior. This will cause more injuries in the future. In the long run though, computer drivers would safety than human drivers since the computers would actually follow all traffic laws and would not take any risks.

People might need to adjust to this new reality, but it will ultimately benefit everyone. There will always be speed bumps when testing new technology. For Uber’s sake, it had best avoid using human being as speed bumps in the future.

“Clock Boy” Ahmed Mohamed’s Lawsuit Dismissed

Ahemd Mohamed’s, also known as “Clock Boy”, discrimination lawsuit has been dismissed from federal court. In September 2015, then 14 year old Mohamed assembled a clock using a circuit board and digital display and brought the clock to school. One of his teachers heard the device beeping and brought Mohamed to the principal’s office.

He was arrested and then suspended for three days. Mohamed claims he was interrogated for ninety minutes before the police would allow him to speak with his parents. Mohamed was charged with possession of a hoax bomb, but the charge was later dropped. He was suspended for three days by the school district.

Mohamed’s arrest sparked a social media firestorm amend allegations that he had been discriminated against because of his religion and ethnicity. Several weeks after his arrest, Mohamed was invited to the White House and spoke with President Obama. The police defended the arrest on the basis that the device could have been mistaken for a bomb if it had been left unattended.

clock boyMohamed’s father filed a lawsuit in federal court in August 2016 against the high school, its principal, and the city of Irving, Texas. The family demanded a written apology and $15 million in damages. Judge Sam Lindsay dismissed the case in 2016, but without prejudice so that Mohamed could refile with more facts. Two years later though, Judge Lindsay dismissed the case again, this time denying Mohamed the ability to refile.

Uphill Battle in Exigent Circumstances

Mohamed’s lawsuit was based on the theory that the Irving School District and City of Irving had discriminated against him based on religion and face, thereby violating the Equal Protection Clause of the 14th Amendment. Mohamed could plea based on the Constitution itself rather than rely on the Civil Rights Act because the School District and the City were controlled by the Constitution directly.

The problem with Mohamed’s complaint was that the case did not lend itself to discrimination on its face. If someone brings a device that looks like a bomb to a classroom, school officials and law enforcement are required to act. Police might have overreacted when they arrested Mohamed and held him for interrogation for over an hour, but the City and School District would have been negligent if they hadn’t acted at all.

Mohamed and his supporters could speculate that the police and the school would not have reacted the way they did if Mohamed was not Arabic or Muslim. However, lawsuits must be built on facts in the case, not mere speculation. Moreover, there’s no way to know how the school or police would react to an Asian or Caucasian student with a device that could reasonably look like a bomb unless someone actually does it.

A more interesting angle in this case is whether Mohamed’s criminal due process was violated. According to Mohamed, he was held for ninety minutes for questioning by police before he was allowed to speak with his parents. Since Mohamed was being held for questioning, the police needed to inform him of his Miranda rights.

Although some news agencies are reporting that he wasn’t allowed to speak with his parents while he was being interrogated, it’s important to know whether he asked for an attorney while he was being held. Sadly, his case was already dismissed with prejudice, so these questions probably won’t be answered.

Justice Department Reviewing Oakland Mayor’s Tipoff on Immigration Raids

Mayor Schaaf warned the community of a U.S. Immigration and Customs Enforcement (ICE) raid twenty-four hours before ICE arrived. Oakland’s mayor issued tweets, emails, and a press release on February 24 warning about impending ICE raids. Local businesses received emails that included a message: “Important Alert! Credible information ICE Raids in Oakland Sunday 2/25 and Monday 2/26. This information comes directly from the Mayor.”

ICE arrested 232 suspected undocumented immigrants that weekend. ICE Deputy Director Homan claims that eight hundred (800) were able to elude them because of the mayor’s warning. ICE spokesman, James Schwab, resigned on March 13 in protest over that claim.

immigrationThe White House and ICE accuse Mayor Schaaf of obstructing justice and endangering the lives of federal agents as a result. Homan argues that “what she did is no better than a gang lookout yelling ‘police’ when a police cruiser comes in the neighborhood, except she did it to a whole community.” The case is under review by the Justice Department.

Mayor Schaaf asserts that her actions were legal. Schaaf says she did not obtain her information from official government channels and she did not reveal specific details about the federal agency’s operations. Schaaf claims she intended to protect law-abiding immigrant families who would have been separated by ICE.

The episode in Oakland is only the latest dispute between the White House and the immigration agency and sanctuary policies in California. The White House believes that such sanctuary policies impede federal law enforcement and give refugee to illegal immigrants. California officials see sanctuary laws as a means of preserving state resources for prosecution of real crimes and to encourage good relations between immigrant communities and state police.

What If ICE Comes to My Home or Business?

Like all government agencies, ICE must obtain a judicial warrant in order to enter private property without the owner’s consent. Without the owner’s consent or a warrant, the search would be unconstitutional and any evidence obtained could be suppressed in court. One of the disputes between California and Attorney General Sessions is whether the 4th Amendment is satisfied if agents only have an executive branch subpoena or if a warrant signed by a federal judge is required. The former is potentially unconstitutional and defense attorneys should be aware if ICE agents executing a search with only a subpoena.

California’s sanctuary law makes it illegal for employers to consent to an ICE search of employment records without a subpoena or court warrant.  This ban does not apply to I-9s and “other documents for which a Notice of Inspection has been provided to the employer.” If ICE is permitted to review an employee’s records, the employer is required to notify the employee of the search within 72 hours of handing over the records to the agency. This provision is being challenged by the federal government in court and is the most likely part of the state’s sanctuary law to be voided by the Supreme Court. Still, employers in California must comply until the law has been overturned.