Thursday, December 31, 2009

New Jersey Adopts MCLE Effective January 1, 2010

In satisfaction of the continuing legal education requirement, attorneys shall participate in twenty-four hours of qualifying continuing legal education over a two-year period. Four of the twenty-four hours of credit shall be concentrated in the areas of ethics and/or professionalism.  See the notice to the bar here.  

Don't Tase Me - Bro!

Law enforcement professionals undertake a very dangerous and oftentimes violent job.  They are often confronted with situations involving non-compliant subjects who must be controlled through the use of physical force.  Since 1993, the TASER Corporation has provided devices that use proprietary technology to incapacitate dangerous, combative, or high-risk subjects who pose a risk to law enforcement officers, corrections officers, civilian members of the public or themselves.  According to the manufacturer, the state-of-the-art TASER X26 Electronic Control Device (ECD), which transmits electrical pulses through wires and into the body of the perpetrator as far as thirty-five feet away, it has the lowest injury rate of any force option, allowing potentially violent offenders to be controlled with minimal risk of injury compared to traditional blunt force options.  I emphasize "potentially violent" in view of the December 28, 2009 decision and order by the federal Ninth Circuit Court of Appeals in Bryan v. McPherson, et ano.    


In a twenty-two page opinion, the Court explained it's rationale in holding that Police Officer McPherson's use of the 26X on Carl Bryan, a twenty-one year-old  male who exhibited the behavior of an emotionally disturbed person after simply being stopped for not wearing a seat belt, was "significant force" which was not justified. 


Bryan apparently had a morning filled with unfortunate events that may try the patience of a well-adjusted person.  The Court recites the facts in which Bryan's car keys were mistakenly taken by an acquaintance.  Bryan was then required to make a one-hundred mile round trip by car to retrieve his keys.  In the course of that trip he was stopped by a California Highway Patrol officer and issued a summons for speeding.  Some time after that traffic stop, he was directed to stop by Officer McPherson when he observed Bryan operating his motor vehicle without a wearing a seat belt.  Despite  being directed to remain in his vehicle, a lawful command which Bryan denied hearing, he exited and stood outside dressed only in boxer shorts and sneakers.  Bryan, who was approximately twenty-five feet from the officer, then launched into a tirade in which he was shouting profanity and gibberish while striking his thighs with his hands.  Obviously concerned for his safety and that of Bryan, the officer deployed the 26X to maintain order.  Bryan was precipitated to the pavement by the  effects of the device and thereby sustained injury to several teeth.  Accordingly, Bryan prosecutes an action under 42 USC 1983 alleging the use of excessive force in violation of his Fourth Amendment right.  


The Court explained in a detailed opinion that, inter alia, the officer's use of the 26X without prior warning, and the physical evidence that Bryan was facing away from the officer when the device was deployed, were facts that demonstrated the unreasonableness of the use of force when evaluating that conduct by an objective standard.  Moreover, the Court found that Bryan's conduct did not pose a threat to the officer where there was no testimony that Bryan advanced toward the officer in the course of his belligerent tirade.  Rather than deploy the device, the Court concluded that the officer should have remained idle and subject to the verbal harassment until additional officers arrived at the location.


Not having the benefit of reviewing the appellate record, I can only reasonably infer that Officer McPherson did not adequately articulate the potential threat posed to him when confronted with such a situation.  The Court made much of the fact that Bryan  was unarmed.  However, what was apparently not articulated in the deposition testimony was the fact that Officer McPherson was armed and that an unarmed 21-year-old emotionally disturbed man could potentially disarm the officer and use deadly force with the officer's own weapon.  By way of example, the NYPD Patrol Guide establishes that an officer provide no less than a twenty-foot distance from an emotionally disturbed person.  Further, the officer's testimony did not establish the  demonstrated fact that a  potentially violent subject can traverse twenty-feet of ground before an officer can even unholster a firearm.  Perhaps the determining factors were overlooked in  the preparation of the officer for his examination before trial.          

Wednesday, December 30, 2009

New York Court of Appeals 2010 Term



The New York Court of Appeals has one term each year, commencing in January and continuing throughout the year in monthly sessions, usually excluding July.  Oral arguments at the Court are held during nine calendar months.  The panel usually convenes in late August to hear and decide cases related to primary elections.  The 2010 schedule of oral argument dates has been published on the Court's Web site.  Arguments begin at 2:00 p.m., and can be viewed through a link on the Court's site.        

Tuesday, December 29, 2009

Discovery of Wireless Device Records in MVA Case

In 2003, researchers at the National Highway Traffic Administration proposed a long-term study of 10,000 drivers to assess the safety risk posed by cellphone use behind the wheel. That study was never conducted; however, based upon a body of research, the highway safety researchers estimated that cellphone use by drivers caused around 955 fatalities and 240,000 accidents over all in 2002. Detraglia v. Grant, a December 10, 2009 unanimous decision by the Supreme Court, Appellate Division, Third Department is perhaps the Court's recognition of the ubiquitous unsafe use of wireless electronic devices while driving


In Detraglia, plaintiff prosecuted a bodily injury action against the owner and the operator of a motor vehicle that collided with the motor vehicle in which her wards were passengers. During the course of discovery, plaintiff demanded that defendants produce billing records for all three of the operator's cellular telephones and the wireless air card for his company-issued laptop computer for the date of the accident between 12:00 P.M. and 4:00 P.M. The aforestated technological devices were all in the defendants' vehicle at the time of the accident, although the operator testified at his deposition that he was not using any of them when the accident occurred. Plaintiff also sought to depose the defendant owner's information technology employee, concerning the whereabouts of these devices and the owner's policies relating to storage and retention of technology records and equipment. Upon defendants' refusal to comply with these demands, plaintiff moved to compel disclosure. The Supreme Court partially granted the motion by requiring defendants to produce the records for the three cellular telephones and wireless air card for the date of the accident between 1:00 P.M. and 3:30 P.M., and to produce the IT person for a deposition.


In the furtherance of broad discovery of all matter material and necessary to the defense or prosecution of an action, the Supreme Court, Appellate Division, Third Department held that the motion court did not abuse its discretion in determining that wireless device records were subject to disclosure (citing Andon v 302-304 Mott St. Assoc., 94 NY2d at 747; Czarnecki v Welch, 23 AD3d 914, 915 [2005]), where there was conflicting evidence that raised questions as to whether the defendant used any technological devices while driving, rendering the records relevant to the question of his negligence. The defendant testified at his deposition that a laptop computer was in a bag, either behind his seat or in the passenger seat, that he never used it while driving, and that while driving he never left it strapped to the computer desk bolted to the vehicle. However, that testimony was refuted by the affidavit of a tow truck driver who arrived at the scene and averred that he saw the laptop on the vehicle's computer desk, with the screen flipped up and turned on, indicating recent use.


However, the Court held that disclosure of the records should be limited to a narrow time frame surrounding the accident (citing McMahon v Aviette Agency, 301 AD2d 820, 821 [2003]; Morano v Slattery Skanska, Inc., 18 Misc 3d 464, 475 [2007]), and provided for the court to review in camera, with the court providing the parties only relevant information redacted to protect defendants' privacy interests (citing Morano v Slattery Skanska, Inc., 18 Misc 3d at 475).


This is apparently the first appellate court decision concerning the discovery of wireless device records in these circumstances. Given that the defendant denied use of the device and in the absence of any direct proof that it was actually being used prior to the incident, this is a broad construction of CPLR Article 31. Here, defense counsel argued to the Third Department that they adopt the rule established by Queens County Supreme Court Justice Martin Ritholtz in Morano v Slattery Skanska, Inc., 18 Misc 3d 464 (Sup.Ct., Queens Co., 2007). In Morano, Justice Ritholtz held that "the mere fact that a defendant was in the possession of a cell phone at the time of an accident, without any witness testimony as to it being used at that time, would not entitle the plaintiff to said defendant's cell phone records, since such a discovery request would amount to nothing more than a fishing expedition."


It will be interesting to see how this develops in each of the departments. Nonetheless, as it stands there is appellate authority for a party to seek an order compelling production of wireless device records where at least a logical inference can be drawn that the driver was using the device prior to the incident.

Monday, December 28, 2009

Facebook "Friends"

In an opinion dated November 17, 2009, the Florida Judicial Ethics Advisory Committee ruled, under the authority of the Florida Supreme Court, that judges and lawyers cannot be "friends" on Facebook and other social media, even if they are friends offline.  The link to the opinion appears below.

http://www.jud6.org/LegalCommunity/LegalPractice/opinions/jeacopinions/2009/2009-20.html