Archive for the 'Evidence' Category

Part 2: The Legal War Rages On Over Stormy Daniels

Earlier this week, we discussed the non-disclosure agreement which allegedly sought to prevent Stormy Daniels (real name Stephanie Clifford) from disclosing details of her relationship and extramarital affair with President Trump. The penalties under the agreement are hefty, with fines of $1M for every violation. This agreement has led to a legal maelstrom over what Ms. Clifford can say and do.

While President Trump’s attorney Michael Cohen vehemently argues that the entire affair needs to be handled in confidential arbitration under the non-disclosure agreement, Ms. Clifford argues that none of the agreement is enforceable in the first place as Trump never signed it–even under his pseudonym in the agreement “David Dennison.”

As we mentioned in the last article, both sides have moved forward assuming they’re right. Mr. Cohen has gone through arbitration to silence Ms. Clifford while Ms. Clifford has turned to the courts to rule the non-disclosure agreement null and void. Let’s look at the legal proceedings and their chances moving forward.

The Arbitration

As soon as word of the affair started to surface and Ms. Clifford made it clear she wanted to come forward about her experience, Cohen and “Essential Consultants” (an LLC created a few weeks before the agreement with Ms. Clifford to act as a proxy) acted in Trump’s interests and began ex parte arbitration proceedings–proceedings with no notice to Ms. Clifford–to prevent Ms. Clifford from making any statements or releasing any materials related to “Confidential Information.”

In late February of this year, they went before the retired Judge Jacqueline Connor and were issued a restraining order to this effect. This is not a long-term restraining order, but rather was an interim order until the issue was hammered out between the parties.

This was immediately followed by a comment from White House press secretary Sarah Sanders describing the arbitration proceeding as a win for the President–a bit of an odd statement as up this point the White House had maintained that the non-disclosure agreement was not referring to Trump. Even after this arbitration, Mr. Cohen continues to hold that the agreement was entered into without the knowledge of President Trump or his campaign and was agreed to avoid scandal as opposed to any truth to Ms. Clifford’s allegations.

stormy danielsMs. Clifford’s attorney’s have been extremely critical of the idea of arbitration proceedings where only one party shows up and no notice is given that the proceedings are even taking place. However, the non-disclosure agreement does allow for ex parte for injunctions–if not more substantial proceedings. Arbitration provisions in contracts are generally enforceable.

Arbitration agreements are sometimes ruled unconscionable and unenforceable when the balance of power in an agreement is too far towards one side–usually in an employer-employee context. However, there’s not much indication here that one party had an upper hand over the other in negotiations. Arbitration agreements are also occasionally struck down where they favor one side too substantially over the other. However, this is an extremely hard argument to make in court.

Arbitration rules generally allow for ex parte arbitrations on an emergency basis offering temporary relief. This being said, there have been more than a few cases where courts have refused ex parte arbitrations where more substantial relief was sought.

This means that the arguments that have the most weight for Ms. Clifford are the arguments brought in her complaint, that the agreement is unenforceable because it was not signed by President Trump. In general, the validity of unsigned arbitration agreements can vary by state. There are court rulings both allowing arbitration agreements where one party didn’t sign and refusing to accept such an agreement as valid. There is a very valid debate over whether the lack of a valid contract undermines the ability to enforce arbitration. A contract generally needs an offer, acceptance, and consideration to be valid. The consideration was certainly sent in the form of $130,000.

A signature from all parties is not always necessary for acceptance, however Cohen will likely have to find another way to show valid acceptance of all parties–especially in light of his argument that one party to the agreement–one David Dennison aka President Trump–never knew of the agreement at all.

The Complaint

Ms. Clifford’s complaint was filed on March 6th, about a week after the arbitration approved a temporary injunction. As we’ve discussed, it primarily argues that there is no agreement binding Ms. Clifford since it was not signed by Trump–either under his real name or under the “DD” pseudonym. Everywhere he was meant to sign is instead completely unsigned or initialed by Essential Consulting, LLC.

Although Cohen argues Trump never knew about the agreement, emails have been produced showing that Cohen used his Trump Organization email to arrange payment to Ms. Clifford. This makes it even more unlikely President Trump or his Organization had no knowledge of the agreement.

The complaint will argue that if they knew about the agreement that means Trump actively chose not to sign to maintain plausible deniability. This active choice not to sign would support a lack of acceptance and undermine the validity of the agreement.

The complaint itself says that Clifford first decided to come forward about her experiences–which she describes as consensual if motivated by a desire to be on “The Apprentice”–after a recording of Trump came out where he described attempting to seduce a married woman and said he would kiss the woman they were about to meet, commenting that “when you’re a star, they let you do it, you can do anything.”

This led many women to come forward regarding President Trump’s treatment of them and Ms. Clifford thought she should come forward as well. This came to the attention of Mr. Cohen and led to the agreement discussed above shortly after.

The crux of the complaint, as mentioned, is that this agreement is not enforceable. It leans on the allegations that Trump intentionally chose not to sign so he could “later…publically disavow any knowledge of the agreement.” The complaint asks the court to rule that the contract is either unenforceable and void or unconscionable.  The latter argument is a bit of a stretch, but the former has a real chance of success.

Where Will the Case Go from Here?

While Ms. Clifford may have a real case, it is certainly going to be an uphill battle. The lack of signatures certainly doesn’t by itself render the contract necessarily invalid.

What’s more, the case is brought in California and both the California Supreme Court and the US Supreme Court have previously chosen to treat arbitration clauses independent of a larger contract unless there is an attack on the arbitration clauses validity by itself.

This means a court might rule that the validity of the contract has to be handled in confidential arbitration. It’s very likely that such an arbitration would not work out particularly well for Ms. Clifford. This adds another wrench to the works of an already uncertain case.

There is an additional argument Ms. Clifford has yet to bring which may help her cause, although it has a questionable chance of success. The arbitration agreement contained within the contract could be interpreted to require “David Dennison” to invoke it.  The clause was instead invoked here by Essential Consultants and Cohen. This argument is a long shot at best.

If the case moves forward, an enormous if at this point, the discovery will likely show the source of the $130,000. If this money in fact came from Cohen, this is no issue. However, if it came from a more official source it could be a substantial problem for the Trump administration.

Speaking of Mr. Cohen, one thing that is certain going forward is that Cohen has landed himself in a tremendous amount of hot water. His own assertion that he entered into an agreement on his client’s behalf with no knowledge or approval from his client is a professional ethical violation that could see him receive a punishment that could include revoking his license to practice law. If Trump did know about the agreement, then Cohen may have committed fraud–another punishable offense.

Ms. Clifford, however, potentially faces her own share of troubles soon. While we’ve seen from her 60 Minutes interview that she has not been silenced, at $1M per violation of the non-disclosure agreement she may be facing a hefty penalty in her future– recent estimates already have put the damages under her non-disclosure agreement at upwards of $20M.

Jonathan Lurie is a Founding Partner of The Law Offices of Lurie and Ferri (Contact Info). He primarily handles business law, employment law, and intellectual property issues, but works with all types of civil matters. He is a Vice-Chair of the Sports and Entertainment Interest Group of the California Intellectual Property Section and has won awards for his knowledge of intellectual property, start-up business issues, and California civil procedure. 

Don’t Forget: Trump’s Name Found in Panama Papers

Just a few days back, multiple Pulitzer Prize winning journalist Jake Bernstein released a report detailing the first appearance of President Trump in the financial scandal that is the Panama Papers. This is not the only time Trump’s name appears in the papers, the name Trump is in there nearly 3,500. But not all of these necessarily involve Trump himself and, frankly, just being in the papers at all isn’t always an issue by itself. It’s important to understand the context of Trump’s appearance and exactly what the Panama Papers–and the later Paradise Papers–are.

The Panama Papers, leaked back in 2015, are so named because they were taken from a Panama based law firm specializing in forming offshore corporate entities known as Mossack Fonseca. The leak was substantial, 11.5 million financial documents involving nearly 215,000 offshore corporate entities substantial. Offshore entities aren’t illegal in and of themselves–although they’re obviously illegal when used for tax fraud. However, these documents quickly became infamous both for the high profile individuals and companies whose names appeared therein or were connected to those who appeared and because an enormous number of entities turned out to be shell corporations involved in tax evasion, fraud, money laundering for criminal organizations, and evading international sanctions.

Obviously the sheer number of documents made parsing the information contained within a herculean task, thus the revelations still coming out years later. This situation was made even more overwhelming as the Paradise Papers were leaked in last few months.

Second only to the Panama Papers in sheer amount of the data leaked, they incorporated even more documents than their denser predecessor with 13.4 million documents on offshore investments. The documents came from a law firm known as Appleby. This leak dealt mostly dealt with situations that involved legal tax havens–although there were certainly several sketchy situations that caused embarrassment and drew greater scrutiny on companies such as Apple–already investigated by the U.S. Senate in 2013 over allegedly taking advantage of tax havens in Ireland and Bermuda.

It’s important to distinguish that the practice of using a tax haven–moving money to places where they have very little in the way of regulations on income–is at least legally distinguishable from illegal tax evasion. To be frank, a certain amount of efforts to minimize what you pay in taxes is just common sense. However, these are the sort of tax havens which have caused companies, and wealthy individuals, to draw criticism for gaming U.S. tax laws.

panama papersTrump is not alone among leaders with financial interests found amongst the leaked papers. For example, Iceland Prime Minister Sigmender Gunnlaugsson resigned his office after the papers showed he had not disclosed some relevant financial interests when he took office. Trump also isn’t the only person in his administration who has shown up in the papers. Let’s look at exactly what these recent revelations really show–and what they don’t show.

Trump in the Panama Papers

The recent reports on Trump’s appearances on involve a sale by Trump of a New York condo in Trump Palace to a shell company known as Process Consultans (that is not a typo, it is unclear if the corporation was made in haste or if the lack of a “t” made the company harder to find). “Consultans” was owned entirely via bearer shares–a common means of transferring property anonymously. Bearer shares usually see quite a bit of regulation due to how commonly they are involved in money laundering.

Let’s make it clear, this is mostly important now because it is first chronological occurrence of Trump himself being identified in the Panama Papers out of the nearly 3,500 times his name appears. The Panama Papers contain crucially important information on financial goings on and potential crimes across the world. However, the information here is incredibly thin. There is little on how much Trump actually knew, the sale took place in 1994, there are essentially no remaining documents on the apartment rental prior to 2005 (none of which involve “Consultans”), and “Consultans” itself is about as easy to find information on as you’d expect a shell company named “Consultans” to be. The primary criticism here has been Trump’s failure to ask questions about who was purchasing his real estate, especially when it was in such suspicious circumstances. These suspicious circumstances have been exacerbated by revelations in the papers regarding others in his administration.

Trump Administration in Paradise Papers

The Paradise Papers last month revealed financial ties which have drawn more heat on the Trump Administration–specifically U.S. Secretary of Commerce Wilbur Ross. The papers revealed Ross has a financial stake (to the tune of $68M) in a Russian energy company partially owned by Kirill Shamalov. Shamalov is Vladimir Putin’s son-in-law, his father Nikolai Shamalov is currently under U.S. sanctions. These revelations are mostly an issue due to the larger political situation, the lack of full disclosure by Ross in his confirmation hearings, and–most importantly–that these holdings were some of the few investments Ross chose to keep even after assuming his position.

Several politicians have called for inquiries into this from the Government Accountability Office or GAO. There is the potential for legal wrongdoing here, but honestly the smell of impropriety is likely greater than the any real potential for criminal misbehavior here. If nothing else the situation has given rise to a great deal of debate in regards to the exact outlines of the disclosure requirements before taking a position such as Secretary of Commerce and reflection on whether those requirements are sufficient.

The Importance of the Papers

Trump has been criticized for his financial connections before, and many these accusations are well founded. In his campaign he professed to owning 515 separate companies, however only 378 of them can be found registered in Delaware. It’s far from a stretch to imagine Trump has offshore holdings which may appear in the Panama Papers. However, offshore holdings aren’t illegal in and of themselves (again, barring tax fraud) and the information so far is a bit too thin to draw any substantial conclusions from. What is clear is that the Panama and Paradise Papers leaks have revealed financial goings on at a level hitherto unthought-of, tax money hidden or sheltered away from the U.S. government, fraud, and more.

Many politicians on both sides of the aisle and internationally have seen their financial goings on popping up in the Panama or Paradise Papers (or both). Queen Elizabeth, church leaders, Queen Noor of Jordan, one-time Democratic Presidential hopeful Wesley Clark, and even Madonna. The level of involvement of each person is sometimes hard to put together from the facts in the papers and sometimes clear.

However, they have for the most part published explanations for their holdings or involvement. Trump–the “America First” president–has had essentially no comment individually for the thousands of times his and his company’s name appears in the papers regarding offshore holdings–the type often used for money laundering or seeking tax havens from the U.S. government. There certainly needs to be more information before drawing conclusions on an individual level. However, the Panama and Paradise papers have revealed, and will continue to reveal, financial workings that are important even beyond what they imply from individual to individual.

What You Need to Know About the Harvey Weinstein Lawsuits

The accusations of sex crimes committed by Harvey Weinstein have come thick and fast over the last month. As of now, over 80 women have come forward accusing Weinstein of every degree of heinous sex crime imaginable. Some of these accusations are over decades old events while others are quite recent. As they have come to light, they have opened the floodgates for an enormous number of accusations revealing a pervasive atmosphere of sexual assault in Hollywood as more and more actors are called out for previous sexual assaults or for being complicit in such acts and doing nothing.

But, no accusations have matched the sheer numbers and disturbingly normalized pattern of what Weinstein is alleged to have done. An enormous number of women, Gwyneth Paltrow, Rose McGowan, Lucia Stoller, Asia Argento, Ashley Judd, and many more, have accused Weinstein of sexual crimes ranging from sexual assault to rape. The accusations all follow a similar pattern, Weinstein invited an actress or aspiring actress to a hotel room or similar isolated spot on the pretense of speaking about their career and then sexually propositioned them–often not taking no for an answer and threatening their career if they did not comply. Many of these women have cited Weinstein destroying careers as their reason for not immediately coming forward; others came forward but were not believed, berated, and no action was taken.

Weinstein allegedly used his enormous resources to hire people to conceal the acts, allegedly with the help of his company and Miramax. The most recent lawsuit against him includes allegations of Weinstein hiring lawyers, reporters, private investigators and more–often to the tune of over $100,000–to cover his tracks. The efforts were apparently quite in depth, false businesses and false names created to mislead victims into believing they were investing in their productions while they were gathering information and attempting to prevent publication of details regarding Weinstein’s attacks. An enormous amount of effort was put into discrediting victims.

weinsteinWhile everything here is still allegations, there has been quite a bit of information released to support the notion that these attacks were a bit of an open secret in Hollywood. Weinstein himself admitted in a recorded NYPD sting operation in 2015 that he had groped a model. He described the behavior as something he is “used to.”

These allegations have sparked what will hopefully be a continuing change in the way sexual assault is treated in Hollywood. However, they have also given rise to a web of lawsuits brought both against and by Harvey Weinstein himself. Let’s look at some of these lawsuits including a recent class action against Weinstein, Miramax and The Weinstein Company, a recent lawsuit brought against The Weinstein Company by Weinstein himself, and the criminal investigations related to Weinstein.

Class Action Alleging Sexual Assault and More

Perhaps the largest suit against Harvey Weinstein was brought just a few weeks back. The suit is brought on behalf of an unnamed actress–going only by Jane Doe in the lawsuit–alleging that Weinstein acted against her career after she refused to show him her breasts while alone in a hotel room. The 59-page complaint also includes other similarly situated persons in the suit.

The suit alleges charges against Weinstein, and both The Weinstein Company and Miramax as knowing and complicit facilitators of Weinstein’s actions. There have been many instances over the year of interviews and memos indicating at least a passing knowledge of Weinstein’s sexual assaults Some of the women assaulted were brought to isolated meetings with Weinstein as part of agendas provided to them as part of Miramax productions. Reports of Miramax contracts with Weinstein as recently as 2015 allegedly include specific terms that allow Weinstein to avoid internal punishment for treating somebody improperly under Miramax Code of Conduct if he pays all damages and fines out of pocket–along with liquidated damages which would increase for every instance. The lawsuit also argues that many of the attacks were done while Weinstein was acting within the scope of his duties for Miramax and the Weinstein Company.

The specific acts taken against Jane Doe in the case involve Weinstein demanding to see her breasts, then telling her that refusal would end her career. He then allegedly locked her in a dark stairwell where she was eventually released by a janitor.

The charges of the suit include 18 U.S.C. § 1961 RICO Act charges, the same types of charges originally created to combat mafia-style organized crime. The lawsuit basically alleges a concerted group effort to tamper with and intimidate victims and witnesses. They also allege a conspiracy to do the same, negligent supervision of Weinstein by Miramax and The Weinstein Company, civil battery charges, assault charges, and both negligent and intentional infliction of emotional distress.

While many of the charges would normally be barred by the statute of limitations for these charges, the complaint argues the limitations do not apply because the full nature of the conspiracy between Weinstein, The Weinstein Company and Miramax was not known until the expose on the issue published by the New York Times on October 5th, 2017.

Other Suits Related to Weinstein’s Actions

This class action is just one of many brought against Weinstein, Miramax and The Weinstein Company. For instance, actress Dominique Huett has brought a $5M negligence suit against the Weinstein Company. Just recently, an anonymous Los Angeles actress sued over a rape as recent as just last year. These are just the tip of the iceberg, and we can likely anticipate much more in the future.

Weinstein Suing Weinstein Company

Weinstein has been doing some suing of his own–bringing a lawsuit against his own former company The Weinstein Company. Weinstein himself has been forced out of his company in light of the accusations against him. After this, Weinstein has sued his former company for under two separate causes of action–first for wrongful termination and second over the release of emails and documents to him.

The wrongful termination lawsuit is in arbitration currently and the exact details of the accusations are not fully public. The lawsuit over release of documents, however, has seen much more movement and a Delaware judge has already set a trial for January on the issue.

The lawsuit boils down to Weinstein alleging that the company is refusing to turn over emails and other documents that he claims will prove he is innocent of the accusations leveled against him.

A Delaware judge set a January trial for Harvey Weinstein’s effort to get the film production company he co-founded to turn over emails and other documents that he says will exonerate him of–or at least help defend him against–the accusations of sexual harassment. Weinstein apparently intends to produce emails which, according to sources associated with Weinstein, include evidence that accusers “enticed” him or thanked him for what happened. It’s unclear whether any of this evidence exists and seems rather unlikely it would help him in the court of public opinion at this point. Weinstein’s suit has also acknowledged that the email may also show some level of complicity on the part of The Weinstein Company and Miramax.

The Weinstein Company has responded with a request to dismiss the case outright in a recent answer to Weinstein’s complaint.

Criminal Action Against Weinstein

The action against Weinstein are not all civil actions. Both Los Angeles and New York have ongoing investigations into the actions of Harvey Weinstein–quite rightly considering the scope and seriousness of what he is accused of.

In Manhattan, the district attorney’s office has been investigating the accusations of actress Pas de la Huerta who has said that Weinstein raped her twice in her own apartment in 2010. The investigations are still ongoing, so details are still a bit sparse. However, you can expect to hear more on these criminal charges soon.

The Weinstein Company and Weinstein’s Response to the Allegations

Weinstein himself has consistently responded to all allegations with blanket denials of everything these 84 women have charged him with. The Weinstein Company has created as much distance between themselves and Harvey Weinstein as possible and, while there is certainly evidence suggesting they knew about Weinstein’s actions, the company has denied all knowledge and involvement. It’s also worth noting that many of the 80 plus claims here are too old to see litigation in court–if not too old to reach the court of public opinion.

The Weinstein Company has hired a couple of law firms to prepare themselves for potential bankruptcy proceedings. This would limit their financial liability moving forward.

If, or more likely once, criminal charges are brought against Weinstein it may impact the civil actions against him. Just as Bill Cosby asserted due process rights to put civil lawsuits against him on hold during his criminal proceedings, Weinstein may do the same. The argument being that the civil proceedings may prejudice a criminal jury.

The allegations against Weinstein have shone the light on a horrifying aspect of our society and opened the door for an enormous number of similar allegations. Regardless of the outcome of the cases against him, this is an important step. However, it’s hard to imagine the lawsuits discussed here are anything but the tip of the iceberg for Weinstein. We’ll see more action against him in the future, likely the near future.

Did Attorney General Jeff Sessions Lie to Congress?

With Special Counsel Robert Mueller’s first indictments, new questions have arisen regarding Attorney General Jeff Sessions’ testimony regarding Russia and the Trump campaign. During Sessions’ Judiciary Committee confirmation hearing on January 10, Senator Al Franken asked him what Sessions would do “if there is any evidence that anyone affiliated with the Trump campaign communicated with the Russian government in the course of this campaign.”

Franken was referring to a news report alleging that Russia had compromising material on Trump and Trump surrogates were in contact with the Russian government. Sessions replied that he was “not aware of any of those activities” and said “I have been called a surrogate at a time or two in that campaign and I didn’t have—did not have communications with the Russians, and I’m unable to comment on it.” Sessions followed up in January 17 letter to Senator Patrick Leahy that he, Sessions, had not been “in contact with anyone connected to any part of the Russian government about the 2016 election.

SessionsWhat Made the Attorney General’s Office Change Their Mind?

After news about Papadopoulos’s guilty plea emerged, the Attorney General’s office changed it’s tune: “As far as Sessions seemed to be concerned, when he shut down this idea of Papadopoulos engaging with Russia, that was the end of it and he moved the meeting along to other issues.” Instead of being “unaware of any of those activities,” as Sessions had testified under oath in January, the Attorney General thought “It was a bad idea and the Senator didn’t want people to speak about it again.”

Even if we give Sessions the benefit of the doubt that he did everything to discourage meetings with the Kremlin, he should have made these revelations to Congress in January. Instead, Sessions waited until after news of Papadopoulos’s guilty plea to disclose what he has now apparently remembered. These revelations should have been made earlier, especially because Session’s supervisor has been screaming “FAKE NEWS!” whenever a journalist mentioned secret meetings between the Trump campaign and Russia.

What’s truly disturbing is that this is not a single incident. This administration has a history and pattern of making absurd claims which are either easily debunked or which are debunked by later evidence.

But Did He Do it Knowingly and Willfully?

Perjury is the intention act of knowingly or willfully making a false statement while under oath, either verbally or by writing. Statements which are merely false do not constitute perjury. The defendant must know that the statement was false, but made it anyway.

The issue is whether Sessions knew he was making false statement when he said he was “not aware of any activities” between the Trump campaign and Russia, when in fact he was at the meeting when Papadopoulos claimed he could set up connections between Russia and Trump himself. There are two questions that need to be answered before we can determine whether Sessions has committed perjury:

  1. Did Sessions believe Papadopoulos was speaking as a representative of the Kremlin?
  2. When Sessions said he was not “not aware of any activities,” did he know that “aware” also included “to discourage?”

If the answer to both questions is yes, then Sessions would be guilty of perjury. If Sessions believed that Papadopoulos represented Russia, then there was a connection between the Trump campaign and Russia right in front of him. If Sessions also knew that discouraging activity between the two was part of the question asked, then Sessions would have committed perjury. If the question had been “Did you encourage activities between the campaign and Russia,” Sessions would not have been stating a falsehood under oath. However, the question is merely about whether the meeting took place, not Session’s reaction to that meeting. If Sessions understood what the question was about, then he would have committed perjury.

Obviously, if Sessions lied under oath, he should at least meet the same punishment as President Clinton: disbarment, if not impeachment. Unlike the President though, Sessions would have to resign from his position anyway because the Attorney General must be an attorney.

When Police Are Right, But Cannot Arrest Suspects Because the Suspects Got the Facts Wrong

Criminal law is based on the subjective intent of the defendants. In other words, did the defendant intend to do what the law considers a crime? Intent can be very important, as it separates accidents in personal injury from vehicular murders in criminal law. However, this reliance on intent can produce contradictory results, where a defendant is guilt because of action, but is not guilty because they lacked criminal intent. The most famous example is when former FBI Director James Comey announced that there was not enough evidence Secretary Clinton did not intend to circumvent government transparency laws by using a private email server. However, there are less prolific cases where criminal intent is also the deciding factor between innocence and guilt.

What Happened: Bachelor Strip Club Party in D.C.

On March 16, 2008, about 1:00 a.m., Washington D.C. police received a complaint from neighbors about a loud party and potentially illegal activities in a property that had supposedly been vacant for several months. As the officers knocked on the house, they heard music playing and smelled marijuana. When the officers opened the door, several people inside scattered around the building. The house itself was “in disarray” and unfurnished. Police eventually found 21 people inside, including a man hiding in a closet. Several women were “dressed only in their bra with money hanging out of their garter belts” like “strip clubs.”

No one among the 21 people claimed to be the owner of the house or knew who the owner was. Several people claimed they were there for a birthday or bachelor party, but none of them knew who the bachelor was or whose birthday they were celebrating. A few of them claimed a woman named “Peaches” had given them permission to be in the house, but when officers called “Peaches,” she admitted she didn’t have the owner’s permission.  Eventually police got in contact with the homeowner, who explained that the house had been vacant since the last resident had passed away and that he had not given “Peaches” a lease for the house. The officers arrested everyone inside for disorderly conduct and unlawful entry, but prosecutors decline to press charges.

arrestOddly, this was not the end of the story. Shortly after the incident, 16 of the partygoers sued the D.C. police department because the officers lacked probable cause at the time prior to arrest. Since police had no way of knowing prior to entering the house that the people inside were not invited, they had no reason to suspect that the partygoers were trespassing. The plaintiffs won a total of $1 million against the police department and the city. A divided appeals court affirmed the judgment, but the case is now on the Supreme Court docket.

Factually Wrong, But Without Intent Means Not Guilty

Police cannot arrest suspects for any reason or no reason. Police must always have a “reasonable ground for belief of guilt” based on the “totality of the circumstances.” In other words, police must have evidence, based on the information at the time of the arrest, that the suspects have committed a crime. Obviously, what evidence or information is sufficient depends on the exact charges. With unlawful entry or criminal trespass, there must be evidence that the defendants were 1. Unlawfully on the property, 2. Without the owner’s consent, 3. The defendants knew or should have known they did not have permission to be there. The big argument is over the third element; whether the defendants knew or should have known they did not have permission to be on the property.

The fundamental assumption the officers made is that if the homeowner did not give “Peaches” permission to be in the house,  then the homeowner did not give permission for the partygoers to be in the house either. The partygoers clearly relied on “Peaches” apparent authority to be in the house. Unless the partygoers had a way of directing contacting the homeowner, their reliance on “Peaches” word was reasonable. The partygoers would have both subjectively and objectively believe they were not trespassing. In contrast, the officers arrested them based on the fact that legally and factually they had no right to be there.

This is a case where the defendants are right because they reasonably thought they had permission while the officers are right because factually they actually did not have permission. Criminal law, however, is concerned with what the defendant’s intended, not with who is legally right. However, the fact that the officers were right about the legal facts of the case does give rise to probable cause that the law might have been broken. Prosecutors were correct in not bringing charges, but the lower judges were incorrect in punishing the officers for their mistake.