A lot of important things have been said about the shooting of Michael Brown by a police officer, Darren Wilson in Ferguson, Missouri and the following protests and law enforcement reactions. Here, I want to make a few points about the shooting itself and the various legal proceedings that may follow.
Missouri's has a law that permits the use of deadly force by police officers, and this law isvery broad on its face. But this law would have limited application to an excessive force lawsuit against Wilson. Missouri's statute on officers' use of deadly force purports to justify deadly force in any situation where an officer reasonably believes a suspect has committed a felony and where deadly force is immediately necessary to effect the arrest. But the Fourth Amendment limits officer use of deadly force to situations where the defendant poses a danger to the officer or others, or where there is probable cause to believe the suspect has caused serious physical harm to somebody.
While Wilson would therefore not be able to take advantage of the statute's broad language in defending against an excessive force lawsuit, Wilson would probably still be able to raise the statutory defense in a criminal proceeding against him. While the constitutional limits on officers' use of force are relevant in civil claims that the officer has violated a suspect's rights, these constitutional limits would probably not apply in a case where the officer is the subject of a criminal proceeding.
Showing posts with label Missouri. Show all posts
Showing posts with label Missouri. Show all posts
Friday, August 15, 2014
Saturday, November 2, 2013
Mascots, Hot Dogs, and the "Baseball Rule"
NBC Sports reports:
Normally, courts apply the "baseball rule" in cases involving injuries at baseball stadiums. Attendees are typically held to have assumed the risk that they would be hit by a fly ball or fragmented bat if an injury of that sort takes place.
But this rule has its limits. For instance, in Lowe v. California League of Professional Baseball, 65 Cal. Rptr. 2d 105 (1997), the California Court of Appeal overturned a trial court's grant of summary judgment against a plaintiff who was suing after being struck by a foul ball while watching the Rancho Cucamonga Quakes at their home field. The court noted that immediately before the injury, the plaintiff was distracted by the Quakes' dinosaur mascot, Tremor. Tremor was hitting the plaintiff with his tail, which drew the plaintiff's attention. Upon returning his attention to the field, the plaintiff was immediately struck by the ball.
The court held that the baseball rule did not bar the plaintiff's lawsuit. It noted that the baseball rule exists to prevent lawsuits based on risks that are inherent to the observation of a baseball game. The court held that Tremor's actions did not fit into this category, noting that "the antics of the mascot are not an essential or integral part of the playing of a baseball game."
It will be interesting to see how the Missouri case turns out. I could not find any Missouri cases that mention "baseball rule," so it is likely that the Court will draw on authority from other jurisdictions. I think that the Lowe reasoning would certainly help the plaintiff here, since the injury-causing object was a hot dog and not a ball or bat fragment, and because the hot dog was thrown by a mascot.
On the other hand, here, the mascot, Sluggerrr was not distracting the plaintiff, so the defendant may argue that he should have been alert to possible risks of flying objects. Moreover, Sluggerrr was throwing a hot dog into the crowd -- an object that is far less dangerous than a fly ball or bat fragment. The mascot's actions mirrored events that would typically be covered by the baseball rule, with the only difference being that the plaintiff was probably injured far less than he would have been had he been struck by a ball.
I think that if the Missouri Supreme Court takes the breadth of Lowe's language seriously, it may end up finding in the plaintiff's favor. The tossing of a hot dog (a quintessential relic of baseball) may be negated by the antics of the mascot (a not-so-quintessential part of the game). The facts of the Missouri case are pretty different, however, so the Missouri Supreme Court can probably distinguish Lowe if it wishes to decide the case on alternate grounds.
If it had been a foul ball or broken bat that struck John Coomer in the eye as he watched a Kansas City Royals game, the courts likely wouldn't force the team to pay for his surgeries and suffering.
But because it was a hot dog thrown by the team mascot - behind the back, no less - he just may have a case.
The Missouri Supreme Court is weighing whether the "baseball rule" - a legal standard that protects teams from being sued over fan injuries caused by events on the field, court or rink - should also apply to injuries caused by mascots or the other personnel that teams employ to engage fans. Because the case could set a legal precedent, it could change how teams in other cities and sports approach interacting with fans at their games.Fox News elaborates on the facts:
Coomer, of Overland Park, Kan., says he was injured at a September 2009 Royals game when the team's lion mascot, Sluggerrr, threw a 4-ounce, foil-wrapped wiener into the stands that struck his eye. He had to have two surgeries -- one to repair a detached retina and the other to remove a cataract that developed and implant an artificial lens. Coomer's vision is worse now than before he was hurt and he has paid roughly $4,800 in medical costs, said his attorney, Robert Tormohlen.
Normally, courts apply the "baseball rule" in cases involving injuries at baseball stadiums. Attendees are typically held to have assumed the risk that they would be hit by a fly ball or fragmented bat if an injury of that sort takes place.
But this rule has its limits. For instance, in Lowe v. California League of Professional Baseball, 65 Cal. Rptr. 2d 105 (1997), the California Court of Appeal overturned a trial court's grant of summary judgment against a plaintiff who was suing after being struck by a foul ball while watching the Rancho Cucamonga Quakes at their home field. The court noted that immediately before the injury, the plaintiff was distracted by the Quakes' dinosaur mascot, Tremor. Tremor was hitting the plaintiff with his tail, which drew the plaintiff's attention. Upon returning his attention to the field, the plaintiff was immediately struck by the ball.
The court held that the baseball rule did not bar the plaintiff's lawsuit. It noted that the baseball rule exists to prevent lawsuits based on risks that are inherent to the observation of a baseball game. The court held that Tremor's actions did not fit into this category, noting that "the antics of the mascot are not an essential or integral part of the playing of a baseball game."
It will be interesting to see how the Missouri case turns out. I could not find any Missouri cases that mention "baseball rule," so it is likely that the Court will draw on authority from other jurisdictions. I think that the Lowe reasoning would certainly help the plaintiff here, since the injury-causing object was a hot dog and not a ball or bat fragment, and because the hot dog was thrown by a mascot.
On the other hand, here, the mascot, Sluggerrr was not distracting the plaintiff, so the defendant may argue that he should have been alert to possible risks of flying objects. Moreover, Sluggerrr was throwing a hot dog into the crowd -- an object that is far less dangerous than a fly ball or bat fragment. The mascot's actions mirrored events that would typically be covered by the baseball rule, with the only difference being that the plaintiff was probably injured far less than he would have been had he been struck by a ball.
I think that if the Missouri Supreme Court takes the breadth of Lowe's language seriously, it may end up finding in the plaintiff's favor. The tossing of a hot dog (a quintessential relic of baseball) may be negated by the antics of the mascot (a not-so-quintessential part of the game). The facts of the Missouri case are pretty different, however, so the Missouri Supreme Court can probably distinguish Lowe if it wishes to decide the case on alternate grounds.
Monday, October 7, 2013
Today's Double Jeopardy Developments: Trayvon Martin and Edward Roach
My newly acquired Twitter account has clued me in on some interesting double jeopardy-related events that happened today.
UCLA Law Review Discourse has posted an essay by Adam Harris Kurland, entitled Not the Last Word, but Likely the Last Prosecution: Understanding the U.S. Department of Justice’s Evaluation of Whether to Authorize a Successive Federal Prosecution in the Trayvon Martin Killing, (and what a title that is!) Here is the abstract:
The essay is short, interesting, and engaging, and its coverage of the Department of Justice's various considerations in deciding whether to prosecute a case is highly informative. As the abstract indicates, the author notes that federal prosecution is appropriate in some circumstances, but the Zimmerman case lacks typical justifications for such a secondary prosecution.
Still on the subject of double jeopardy, but in an entirely different case, the Supreme Court today denied certiorari in Roach v. Missouri. In Roach, the defendant, Edward Roach, was charged with the state crimes of unlawful use of a firearm and being a felon in possession of a firearm. Roach was also charged by the United States with violating a federal statute prohibiting possession of firearms by felons. Roach pled guilty to the federal charge and asked that the state felon possession charge, arguing that this prosecution was based on the same facts that underlay the federal charge. The Missouri trial court dismissed that count, and Roach pled guilty to the unlawful use of a firearm charge.
On appeal, the Missouri Court of Appeals reversed the dismissal of the possession charge, noting that under the "dual sovereignty" approach to double jeopardy, a conviction in federal court would not foreclose a state prosecution based on the same facts. Roach tried to appeal the Court of Appeals' decision to the Missouri Supreme Court, but was denied review.
Roach then petitioned for review in the United States Supreme Court, arguing that the Missouri Court of Appeals' dual sovereignty justification violated the Fifth Amendment's Double Jeopardy Clause. The cert petition was drafted by the UCLA School of Law's Supreme Court Clinic and signed by Stuart Banner. A copy of the petition is available here. At the time the petition was filed, Orin Kerr noted that the petition raised some very interesting historical arguments, and argued that from an originalist perspective, the Court's longstanding precedent permitting federal and state prosecutions for the same offense was inconsistent with the original meaning of the Fifth Amendment. The Constitutional Accountability Center filed an amicus brief in support of Roach - and also focused on historical arguments against the dual sovereign approach.
The significance of the Roach case was not lost on observers after the Zimmerman verdict, with Eugene Volokh noting the Roach petition's relevance on whether the Department of Justice should prosecute George Zimmerman.
Ultimately, it appears that Roach's history-based arguments failed to convince the Justices to revisit their longstanding precedent. At the same time, the lessons that Kurland draws from the Zimmerman case indicate that while dual prosecution may occur in some circumstances, barriers in the Department of Justice stand in the way of this being a widespread practice.
UCLA Law Review Discourse has posted an essay by Adam Harris Kurland, entitled Not the Last Word, but Likely the Last Prosecution: Understanding the U.S. Department of Justice’s Evaluation of Whether to Authorize a Successive Federal Prosecution in the Trayvon Martin Killing, (and what a title that is!) Here is the abstract:
In the aftermath of George Zimmerman’s state court acquittal in the Trayvon Martin killing, the U.S. Department of Justice is considering whether to bring federal criminal charges against Zimmerman arising out of the same incident. While such a dual or successive prosecution does not violate double jeopardy, the determination whether the federal government should bring charges turns on whether the Petite Policy, an internal U.S. Department of Justice Guideline, has been satisfied. Professor Kurland contends that because the requisites of the Petite Policy, that the prior state trial must have left a substantial federal interest demonstrably unvindicated, cannot be established, a federal prosecution should not be authorized. Rather, more appropriate and constructive nonprosecutorial alternatives should be pursued to address the myriad of criminal justice and social policy concerns impacted by the tragic incident.
The essay is short, interesting, and engaging, and its coverage of the Department of Justice's various considerations in deciding whether to prosecute a case is highly informative. As the abstract indicates, the author notes that federal prosecution is appropriate in some circumstances, but the Zimmerman case lacks typical justifications for such a secondary prosecution.
Still on the subject of double jeopardy, but in an entirely different case, the Supreme Court today denied certiorari in Roach v. Missouri. In Roach, the defendant, Edward Roach, was charged with the state crimes of unlawful use of a firearm and being a felon in possession of a firearm. Roach was also charged by the United States with violating a federal statute prohibiting possession of firearms by felons. Roach pled guilty to the federal charge and asked that the state felon possession charge, arguing that this prosecution was based on the same facts that underlay the federal charge. The Missouri trial court dismissed that count, and Roach pled guilty to the unlawful use of a firearm charge.
On appeal, the Missouri Court of Appeals reversed the dismissal of the possession charge, noting that under the "dual sovereignty" approach to double jeopardy, a conviction in federal court would not foreclose a state prosecution based on the same facts. Roach tried to appeal the Court of Appeals' decision to the Missouri Supreme Court, but was denied review.
Roach then petitioned for review in the United States Supreme Court, arguing that the Missouri Court of Appeals' dual sovereignty justification violated the Fifth Amendment's Double Jeopardy Clause. The cert petition was drafted by the UCLA School of Law's Supreme Court Clinic and signed by Stuart Banner. A copy of the petition is available here. At the time the petition was filed, Orin Kerr noted that the petition raised some very interesting historical arguments, and argued that from an originalist perspective, the Court's longstanding precedent permitting federal and state prosecutions for the same offense was inconsistent with the original meaning of the Fifth Amendment. The Constitutional Accountability Center filed an amicus brief in support of Roach - and also focused on historical arguments against the dual sovereign approach.
The significance of the Roach case was not lost on observers after the Zimmerman verdict, with Eugene Volokh noting the Roach petition's relevance on whether the Department of Justice should prosecute George Zimmerman.
Ultimately, it appears that Roach's history-based arguments failed to convince the Justices to revisit their longstanding precedent. At the same time, the lessons that Kurland draws from the Zimmerman case indicate that while dual prosecution may occur in some circumstances, barriers in the Department of Justice stand in the way of this being a widespread practice.
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