Domestic Violators Tagged

http://news.bbc.co.uk/2/hi/europe/8537591.stm

what do you think??

False Imprisonment - Shoplifting

When we were talking about false imprisonment and shoplifting, it reminded me of something I saw a while back. As I was walking into a grocery store, a guy sprinted past me, and an employee sprinted past him only seconds later. The first guy was trying to steal a pack of beer. I just thought it was interesting how the employee ran after the guy into the parking lot because as we talked about in class, many places would just let it go because the time, cost, and effort would just be less.

Katko v Briney

2183 N.W.2d 657, *; 1971 Iowa Sup. LEXIS 717, **; 47 A.L.R.3d 624 MARVIN KATKO, Appellee v. EDWARD BRINEY and BERTHA L. BRINEY, Appellants No. 54169 Supreme Court of Iowa 183 N.W.2d 657; 1971 Iowa Sup. LEXIS 717; 47 A.L.R.3d 624 February 9, 1971, Filed PRIOR HISTORY: [**1] Appeal from Mahaska District Court. Harold Fleck. Action at law for damages resulting from injuries suffered by trespassing plaintiff when he triggered a spring gun placed in an uninhabited house by defendant owners. From judgment for both actual and punitive damages, defendants appeal. DISPOSITION: Affirmed. CASE SUMMARY PROCEDURAL POSTURE: Appeal from Mahaska District Court (Iowa), upon a jury verdict awarding actual and punitive damages to plaintiff in an action resulting from injuries suffered by trespassing plaintiff when he triggered a spring gun placed in an uninhabited house by defendant owners. OVERVIEW: Plaintiff filed an action for damages resulting from serious injury caused by a shot from a 20-gauge spring shotgun set by defendants in a bedroom of an old farm house which had been uninhabited for several years. Plaintiff and his companion had broken in and entered the house. At defendants' request plaintiff's action was tried to a jury, which returned a verdict for plaintiff and against defendants for actual and punitive damages. The trial court overruled defendants' motions for judgment notwithstanding the verdict and for a new trial. The primary issue was whether an owner could protect personal property in an unoccupied boarded-up farmhouse against trespassers and thieves by a spring gun capable of inflicting death or serious injury. The court affirmed, holding that the law did not permit spring guns to be used in such instances. OUTCOME: Judgment affirmed because the use of spring guns to protect uninhabited property was not permissible. CORE TERMS: trespasser, intruder, gun, spring gun, punitive damages, trap, spring, human life, trespass, repel, door, property owner, exemplary damages, dwelling, invader, felony, injure, window, inflict great bodily injury, breaking and entering, mere trespasser, means of force, criminal law, intentionally, installation, unoccupied, privileged, injuring, shotgun, thief COUNSEL: Bruce Palmer and H. S. Life, both of Oskaloosa, for Appellants. Garold Heslinga, of Oskaloosa, for Appellee. JUDGES: Moore, C.J. All Justices concur except Larson, J., who dissents. OPINION BY: MOORE OPINION: [*657] The primary issue presented here is whether an owner may protect personal property in an unoccupied boarded-up farm house against trespassers and thieves by a spring gun capable of inflicting death or serious injury. We are not here concerned with a man's right to protect his home and members of his family. Defendants' home was several miles from the scene of the incident to which we refer infra. [*658] Plaintiff's action is for damages resulting from serious injury caused by a shot from a 20-gauge spring shotgun set by defendants in a bedroom of an old farm house which had been uninhabited for several years. Plaintiff and his companion, Marvin McDonough, had [**2] broken and entered the house to find and steal old bottles and dated fruit jars which they considered antiques. At defendants' request plaintiff's action was tried to a jury consisting of residents of the community where defendants' property was located. The jury returned a verdict for plaintiff and against defendants for $20,000 actual and $10,000 punitive damages. After careful consideration of defendants' motions for judgment notwithstanding the verdict and for new trial, the experienced and capable trial judge overruled them and entered judgment on the verdict. Thus we have this appeal by defendants. I. In this action our review of the record as made by the parties in the lower court is for the correction of errors at law. clscc1clscc1We do not review actions at law de novo. Rule 334, Rules of Civil Procedure. Findings of fact by the jury are binding upon this court if supported by substantial evidence. Rule 344(f) 1, R.C.P. II. Most of the facts are not disputed. In 1957 defendant Bertha L. Briney inherited her parents' farm land in Mahaska and Monroe Counties. Included was an 80-acre tract in southwest Mahaska County where her grandparents and parents had lived. No one occupied the [**3] house thereafter. Her husband, Edward, attempted to care for the land. He kept no farm machinery thereon. The outbuildings became dilapidated. For about 10 years, 1957 to 1967, there occurred a series of trespassing and housebreaking events with loss of some household items, the breaking of windows and "messing up of the property in general". The latest occurred June 8, 1967, prior to the event on July 16, 1967 herein involved. Defendants through the years boarded up the windows and doors in an attempt to stop the intrusions. They had posted "no trespass" signs on the land several years before 1967. The nearest one was 35 feet from the house. On June 11, 1967 defendants set "a shotgun trap" in the north bedroom. After Mr. Briney cleaned and oiled his 20-gauge shotgun, the power of which he was well aware, defendants took it to the old house where they secured it to an iron bed with the barrel pointed at the bedroom door. It was rigged with wire from the doorknob to the gun's trigger so it would fire when the door was opened. Briney first pointed the gun so an intruder would be hit in the stomach but at Mrs. Briney's suggestion it was lowered to hit the legs. He admitted he did [**4] so "because I was mad and tired of being tormented" but "he did not intend to injure anyone". He gave no explanation of why he used a loaded shell and set it to hit a person already in the house. Tin was nailed over the bedroom window. The spring gun could not be seen from the outside. No warning of its presence was posted. Plaintiff lived with his wife and worked regularly as a gasoline station attendant in Eddyville, seven miles from the old house. He had observed it for several years while hunting in the area and considered it as being abandoned. He knew it had long been uninhabited. In 1967 the area around the house was covered with high weeds. Prior to July 16, 1967 plaintiff and McDonough had been to the premises and found several old bottles and fruit jars which they took and added to their collection of antiques. On the latter date about 9:30 p.m. they made a second trip to the Briney property. They entered the old house by removing a board from a porch window which was without glass. While McDonough was looking around the kitchen area plaintiff went to another part of the house. As he started to open the north bedroom door the shotgun went off striking him in the right leg [**5] above the ankle bone. Much of his leg, including part of the tibia, was blown away. Only by McDonough's [*659] assistance was plaintiff able to get out of the house and after crawling some distance was put in his vehicle and rushed to a doctor and then to a hospital. He remained in the hospital 40 days. Plaintiff's doctor testified he seriously considered amputation but eventually the healing process was successful. Some weeks after his release from the hospital plaintiff returned to work on crutches. He was required to keep the injured leg in a cast for approximately a year and wear a special brace for another year. He continued to suffer pain during this period. There was undenied medical testimony plaintiff had a permanent deformity, a loss of tissue, and a shortening of the leg. The record discloses plaintiff to trial time had incurred $710 medical expense, $2056.85 for hospital service, $61.80 for orthopedic service and $750 as loss of earnings. In addition thereto the trial court submitted to the jury the question of damages for pain and suffering and for future disability. III. Plaintiff testified he knew he had no right to break and enter the house with intent to steal [**6] bottles and fruit jars therefrom. He further testified he had entered a plea of guilty to larceny in the nighttime of property of less than $20 value from a private building. He stated he had been fined $50 and costs and paroled during good behavior from a 60-day jail sentence. Other than minor traffic charges this was plaintiff's first brush with the law. On this civil case appeal it is not our prerogative to review the disposition made of the criminal charge against him. IV. The main thrust of defendants' defense in the trial court and on this appeal is that "the law permits use of a spring gun in a dwelling or warehouse for the purpose of preventing the unlawful entry of a burglar or thief". They repeated this contention in their exceptions to the trial court's instructions 2, 5 and 6. They took no exception to the trial court's statement of the issues or to other instructions. In the statement of issues the trial court stated plaintiff and his companion committed a felony when they broke and entered defendants' house. In instruction 2 the court referred to the early case history of the use of spring guns and stated under the law their use was prohibited except to prevent the [**7] commission of felonies of violence and where human life is in danger. The instruction included a statement breaking and entering is not a felony of violence. Instruction 5 stated: "You are hereby instructed that one may use reasonable force in the protection of his property, but such right is subject to the qualification that one may not use such means of force as will take human life or inflict great bodily injury. Such is the rule even though the injured party is a trespasser and is in violation of the law himself." Instruction 6 stated: "An owner of premises is prohibited from willfully or intentionally injuring a trespasser by means of force that either takes life or inflicts great bodily injury; and therefore a person owning a premise is prohibited from setting out 'spring guns' and like dangerous devices which will likely take life or inflict great bodily injury, for the purpose of harming trespassers. The fact that the trespasser may be acting in violation of the law does not change the rule. The only time when such conduct of setting a 'spring gun' or a like dangerous device is justified would be when the trespasser was committing a felony of violence or a felony punishable [**8] by death, or where the trespasser was endangering human life by his act." Instruction 7, to which defendants made no objection or exception stated: "To entitle the plaintiff to recover for compensatory damages, the burden of proof is upon him to establish by a preponderance of the evidence each and all of the following propositions: "1. That defendants erected a shotgun trap in a vacant house on land owned by defendant, [*660] Bertha L. Briney, on or about June 11, 1967, which fact was known only by them, to protect household goods from trespassers and thieves. "2. That the force used by defendants was in excess of that force reasonably necessary and which persons are entitled to use in the protection of their property. "3. That plaintiff was injured and damaged and the amount thereof. "4. That plaintiff's injuries and damages resulted directly from the discharge of the shotgun trap which was set and used by defendants." The overwhelming weight of authority, both textbook and case law, supports the trial court's statement of the applicable principles of law. Prosser on Torts, Third Edition, pages 116-118, states: "* * clscc2clscc2* the law has always placed a higher value upon human [**9] safety than upon mere rights in property, it is the accepted rule that there is no privilege to use any force calculated to cause death or serious bodily injury to repel the threat to land or chattels, unless there is also such a threat to the defendant's personal safety as to justify self-defense. * * * spring guns and other man-killing devices are not justifiable against a mere trespasser, or even a petty thief. They are privileged only against those upon whom the landowner, if he were present in person would be free to inflict injury of the same kind." Restatement of Torts, section 85, page 180, states: clscc3clscc3"The value of human life and limb, not only to the individual concerned but also to society, so outweighs the interest of a possessor of land in excluding from it those whom he is not willing to admit thereto that a possessor of land has, as is stated in § 79, no privilege to use force intended or likely to cause death or serious harm against another whom the possessor sees about to enter his premises or meddle with his chattel, unless the intrusion threatens death or serious bodily harm to the occupiers or users of the premises. * * * A possessor of land cannot do indirectly and [**10] by a mechanical device that which, were he present, he could not do immediately and in person. Therefore, he cannot gain a privilege to install, for the purpose of protecting his land from intrusions harmless to the lives and limbs of the occupiers or users of it, a mechanical device whose only purpose is to inflict death or serious harm upon such as may intrude, by giving notice of his intention to inflict, by mechanical means and indirectly, harm which he could not, even after request, inflict directly were he present." In Volume 2, Harper and James, The Law of Torts, section 27.3, pages 1440, 1441, this is found: clscc4clscc4"The possessor of land may not arrange his premises intentionally so as to cause death or serious bodily harm to a trespasser. The possessor may of course take some steps to repel a trespass. If he is present he may use force to do so, but only that amount which is reasonably necessary to effect the repulse. Moreover if the trespass threatens harm to property only - even a theft of property - the possessor would not be privileged to use deadly force, he may not arrange his premises so that such force will be inflicted by mechanical means. If he does, he will be liable [**11] even to a thief who is injured by such device." Similar statements are found in 38 Am.Jur., Negligence, section 114, pages 776, 777, and 65 C.J.S., Negligence, § 63(23), pages 678, 679; Anno. 44 A.L.R.2d 383, entitled "Trap to protect property". In Hooker v. Miller, 37 Iowa 613, we held defendant vineyard owner liable for damages resulting from a spring gun shot although plaintiff was a trespasser and there to steal grapes. At pages 614, 615, this statement is made: "This court has held that a mere trespass against property other than a dwelling is not a sufficient justification to authorize the use of a deadly [*661] weapon by the owner in its defense; and that if death results in such a case it will be murder, though the killing be actually necessary to prevent the trespass. The State v. Vance, 17 Iowa 138." At page 617 this court said: "Trespassers and other inconsiderable violators of the law are not to be visited by barbarous punishments or prevented by inhuman inflictions of bodily injuries." The facts in Allison v. Fiscus, 156 Ohio St. 120, 100 N.E.2d 237, 44 A.L.R.2d 369,decided in 1951, are very similar to the case at bar. There plaintiff's right to damages was recognized [**12] for injuries received when he feloniously broke a door latch and started to enter defendant's warehouse with intent to steal. As he entered a trap of two sticks of dynamite buried under the doorway by defendant owner was set off and plaintiff seriously injured. The court held the question whether a particular trap was justified as a use of reasonable and necessary force against a trespasser engaged in the commission of a felony should have been submitted to the jury. The Ohio Supreme Court recognized plaintiff's right to recover punitive or exemplary damages in addition to compensatory damages. In Starkey v. Dameron, 96 Colo. 459, 45 P.2d 172, plaintiff was allowed to recover compensatory and punitive damages for injuries received from a spring gun which defendant filling station operator had concealed in an automatic gasoline pump as protection against thieves. In Wilder v. Gardner, 39 Ga. App. 608, 147 S.E. 911, judgment for plaintiff for injuries received from a spring gun which defendant had set, the court said: "A person in control of premises may be responsible even to a trespasser for injuries caused by pitfalls, mantraps, or other like contrivances so dangerous in character [**13] as to imply a disregard of consequences or a willingness to inflict injury." In Phelps v. Hamlett, Texas Civil Court of Appeals, 207 S.W. 425, defendant rigged a bomb inside his outdoor theater so that if anyone came through the door the bomb would explode. The court reversed plaintiff's recovery because of an incorrect instruction but at page 426 said: "While the law authorizes an owner to protect his property by such reasonable means as he may find to be necessary, yet considerations of humanity preclude him from setting out, even on his own property, traps and devices dangerous to the life and limb of those whose appearance and presence may be reasonably anticipated, even though they may be trespassers." In United Zinc and Chemical Co. v. Britt, 258 U.S. 268, 275, 66 L. Ed. 615, 617, 42 S. Ct. 299, the court states: "The liability for spring guns and mantraps arises from the fact that the defendant has * * * expected the trespasser and prepared an injury that is no more justified than if he had held the gun and fired it." clscc5clscc5In addition to civil liability many jurisdictions hold a land owner criminally liable for serious injuries or homicide caused by spring guns or other set devices. [**14] See State v. Childers, 133 Ohio St. 508, 14 N.E.2d 767 (melon thief shot by spring gun);Pierce v. Commonwealth, 135 Va. 635, 115 S.E. 686 (policeman killed by spring gun when he opened unlocked front door of defendant's shoe repair shop); State v. Marfaudille, 48 Wash. 117, 92 P. 939 (murder conviction for death from spring gun set in a trunk); State v. Beckham, 306 Mo. 566, 267 S.W. 817 (boy killed by spring gun attached to window of defendant's chili stand); State v. Green, 118 S.C. 279, 110 S.E. 145, 19 A.L.R. 1431 (intruder shot by spring gun when he broke and entered vacant house. Manslaughter conviction of owner -- affirmed); State v. Barr, 11 Wash. 481, 39 P. 1080 (murder conviction affirmed for death of an intruder into a boarded up cabin in which owner had set a spring gun). In Wisconsin, Oregon and England the use of spring guns and similar devices is specifically made unlawful by statute. 44 A.L.R., section 3, pages 386, 388. [*662] The legal principles stated by the trial court in instructions 2, 5 and 6 are well established and supported by the authorities cited and quoted supra. There is no merit in defendants' objections and exceptions thereto. Defendants' various [**15] motions based on the same reasons stated in exceptions to instructions were properly overruled. V. Plaintiff's claim and the jury's allowance of punitive damages, under the trial court's instructions relating thereto, were not at any time or in any manner challenged by defendants in the trial court as not allowable. We therefore are not presented with the problem of whether the $10,000 award should be allowed to stand. We express no opinion as to whether punitive damages are allowable in this type of case. If defendants' attorneys wanted that issue decided it was their duty to raise it in the trial court. clscc6clscc6The rule is well established that we will not consider a contention not raised in the trial court. In other words we are a court of review and will not consider a contention raised for the first time in this court. Ke-Wash Company v. Stauffer Chemical Company, Iowa, 177 N.W.2d 5, 9; In re Adoption of Moriarty, 260 Iowa 1279, 1288, 152 N.W.2d 218, 223; Verschoor v. Miller, 967 Iowa 170, 176, 143 N.W.2d 385, 389;Mundy v. Olds, 254 Iowa 1095, 1100, 120 N.W.2d 469, 472; Bryan v. Iowa State Highway Commission, 251 Iowa 1093, 1096, 104 N.W.2d 562, 563, and citations. In our most recent [**16] reference to the rule we say in Cole v. City of Osceola, 179 N.W.2d 524, 527 (Iowa 1970): "Of course, questions not presented to and not passed upon by the trial court cannot be raised or reviewed on appeal." clscc7clscc7Under our law punitive damages are not allowed as a matter of right.Sebastian v. Wood, 246 Iowa 94, 100, 101, 66 N.W.2d 841, 844. When malice is shown or when a defendant acted with wanton and reckless disregard of the rights of others, punitive damages may be allowed as punishment to the defendant and as a deterrent to others. Although not meant to compensate a plaintiff, the result is to increase his recovery. He is the fortuitous beneficiary of such an award simply because there is no one else to receive it. The jury's findings of fact including a finding defendants acted with malice and with wanton and reckless disregard, as required for an allowance of punitive or exemplary damages, are supported by substantial evidence. We are bound thereby. This opinion is not to be taken or construed as authority that the allowance of punitive damages is or is not proper under circumstances such as exist here. We hold only that question of law not having been properly raised cannot [**17] in this case be resolved. Study and careful consideration of defendants' contentions on appeal reveal no reversible error. Affirmed. All Justices concur except Larson, J., who dissents.

Abercrombie & Fitch Draws EEOC Complaint for Banning Islamic Head Scarf

Amanda Bronstad

The National Law Journal

February 26, 2010

The Council on American-Islamic Relations has filed a complaint with the U.S. Equal Employment Opportunity Commission alleging racial discrimination by Abercrombie & Fitch Stores Inc. after a manager fired a Muslim employee who refused to remove her hijab, or head scarf.

The complaint came five months after the EEOC filed suit against the clothing retailer over a similar complaint.

Abercrombie reached a $50 million agreement with the EEOC in 2004 resolving racial discrimination claims over its hiring and recruiting practices and its marketing "look," which predominantly featured white men and women.

"The company has a history of very explicit discrimination," said Zahra Billoo, programs and outreach director in CAIR's office in Santa Clara, Calif. "It's a disappointing pattern to see in a mainstream American company."

CAIR, one of the nation's largest Muslim civil liberties organizations, filed its complaint on Wednesday on behalf of Umme-Hani Kahn, 19, a stockroom worker who had been employed by Abercrombie subsidiary Hollister Co. in San Mateo, Calif. When she was hired in October, Kahn was told she could wear the hijab, Billoo said.

"It didn't come up in terms of, 'Can I wear it?'" she said, but rather "how it fits with the 'look' policy. Local management said, 'Yes, as long as it's white, gray or Navy blue. Everything they wear has to be in those colors."

She wore the hijab at work with no problems until this month, when a district manager, upon visiting the store, arranged a meeting in the stockroom with Kahn and someone from the company's human resources department, who participated via telephone. They told Kahn that scarves and hats did not fit the company's "look" and sent her home.

On Monday, Kahn was ordered to remove her hijab during work hours. When she refused, claiming that it would violate her religious beliefs, they fired her, Billoo said.

Title VII of the Civil Rights Act of 1964 says that employers may not discriminate against individuals because of their religion and must accommodate employee religious practices unless doing so would create an "undue hardship" for the employer, CAIR said in a press release.

In September, the EEOC filed a separate complaint against Abercrombie on behalf of a prospective employee, Samantha Elauf, who was denied a sales job at an Abercrombie Kids store in Tulsa, Okla., because her hijab violated the company's "look" policy, according to the complaint. CAIR had filed a complaint on that individual's behalf in 2008.

In that case, Abercrombie denied the allegation, saying that it had no legal duty to Elauf since she was never an employee and did not request accommodation of her religious beliefs. A call to Abercrombie's attorney in that case, Mark Knueve, a partner at Vorys, Sater, Seymour and Pease in Columbus, Ohio, was not returned.

In the 2004 case, the EEOC alleged that Abercrombie's hiring, recruiting and marketing practices systematically excluded minorities and women. As part of the consent decree, the retailer agreed not to discriminate against job applicants based on race, color or national origin, not to discriminate against women, and not to deny job opportunities to women and minorities. The store agreed to hire a monitor to ensure compliance with the decree and to hire 25 diversity recruiters and a vice president for diversity. Abercrombie also agreed that its marketing materials would reflect a more diverse "look."

According to a press release issued at the time of that agreement, EEOC General Counsel Eric Dreiband said: "The retail industry and other industries need to know that businesses cannot discriminate against individuals under the auspice of a marketing strategy or a particular 'look.' "

In 2008, the EEOC issued guidelines for accommodating religious beliefs in the workplace, specifically offering protection for workers who wear the hijab.

Billoo said that the day after CAIR filed its EEOC complaint on Kahn's behalf, its offices in Washington and Santa Clara received a threat of violence that appeared to refer to the case. She said that the FBI had been informed of the threats.

U.K. Lawmakers Call for End to Libel Tourism

LONDON—A group of lawmakers urged Britain's government on Wednesday to change plaintiff-friendly libel laws that encourage foreigners to bring cases to U.K. courts, saying the threat of expensive libel suits is stifling investigative journalism and media freedom.

The chairman of the House of Commons Culture, Media and Sport Committee said it was "a humiliation" that several U.S. states have introduced laws to protect American citizens from the enforcement of legal settlements in foreign jurisdictions such as Britain. A similar federal law is currently before the U.S. Congress.

The committee, which has members from Britain's three main political parties, said in a report that the government must act urgently to redress the balance of libel laws that have "tipped too far in favor of the plaintiff."

"It is a humiliation that U.S. legislators have felt it necessary to take steps to protect freedom of speech from what are seen as unreasonable incursions by our courts," said committee chairman and Conservative legislator John Whittingdale.

Britain's libel laws are considered more claimant-friendly than those in many other countries, leading foreigners to bring lawsuits to Britain they would likely lose in their own countries.

Libel laws in the U.S. generally require plaintiffs to prove that a published article was both false and written maliciously. In Britain, the burden of proof falls on the defendant to demonstrate what it published was true.

The committee said Britain should consider reversing that burden in libel cases where the plaintiff is a corporation, which generally has much greater resources to fight a case. It cited one famous example, an "unequal legal contest" in which McDonald's Corp. sued two environmental protesters for distributing leaflets criticizing the company, sparking an expensive 10-year legal battle known as the "McLibel" case.

The committee also recommended a reduction in the amount of costs paid by the losing side.

Britain's courts have become a battleground between high-profile figures from around the world and the international media. In 2006, American actress Kate Hudson successfully sued the National Enquirer for libel in London, relying on the fact that the U.S. publication has a British edition. In another case, a Saudi businessman successfully sued an American academic over a U.S.-published book about the financing of terrorism that had sold only 23 copies in Britain.

The committee said the government should impose "additional hurdles" to litigants not based primarily in Britain. "There is increasing evidence that in recent years investigative journalism is being deterred by the threat and cost of having to defend libel actions," said Mr. Whittingdale.

The committee said there was no need for a law to protect the right to privacy, something that has been called for by the victims of tabloid exposes. But it advised tighter media self-regulation through the Press Complaints Commission, saying that in most cases journalists should have to notify the subjects of stories before publication.

Though Britain has no formal privacy law, it is a signatory to the European Convention on Human Rights, which guarantees the right to respect for privacy and family life. Celebrities have increasingly used this clause to fight media exposes.

The committee criticized the behavior of one tabloid, the News of the World, whose editor resigned after a reporter was found to have hacked into the phones of British royal officials. The newspaper's royal editor, Clive Goodman, and a private investigator were jailed in 2007 over the hacking.

The committee said phone hacking was likely more widespread at the paper at the time, but the true number of victims would never be known, in part because of the "collective amnesia" of the paper's management.

The lawmakers also said it appeared that some of those involved had been paid off. "We do not know the amounts, or terms, but we are left with a strong impression that silence has been bought," they said.

The News of the World's publisher, News International, rejected claims of a cover up and accused the committee of "innuendo, unwarranted inference and exaggeration." News International is the main U.K. subsidiary of News Corp., which owns Dow Jones & Co., publisher of The Wall Street Journal.

The committee also called for a new law to guarantee the age-old right to report the goings-on of Parliament. That came under fire in October, when the oil-trading company Trafigura obtained a legal injunction that barred reporting of a parliamentary question asked about its role in dumping toxic waste in West Africa. The injunction sparked outrage from the media and was quickly overturned.

"The free and fair reporting of proceedings in Parliament is a cornerstone of our democracy," Mr. Whittingdale said, adding that it must be put "beyond doubt."

The government isn't obliged to follow the committee's recommendations. But Justice Secretary Jack Straw pledged reform in November, saying libel laws had become "unbalanced."

Copyright 2010 Associated Press

Link: http://online.wsj.com/article/SB10001424052748704240004575084970578808904.html

Make My Day Law

Castle Doctrine in the United States

From Wikipedia, the free encyclopedia

A Castle Doctrine (also known as a Castle Law or a Defense of Habitation Law) is an American legal doctrine that arose from English Common Law^[1] that designates one's place of residence (or, in some states, any place legally occupied, such as one's car or place of work) as a place in which one enjoys protection from illegal trespassing and violent attack. It then goes on to give a person the legal right to use deadly force to defend that place (his/her "castle"), and/or any other innocent persons legally inside it, from violent attack or an intrusion which may lead to violent attack. In a legal context, therefore, use of deadly force which actually results in death may be defended as justifiable homicide under the Castle Doctrine.

Castle Doctrines are legislated by state, and not all states in the US have a Castle Doctrine. The term "Make My Day Law" comes from the landmark 1985 Colorado statute that protects people from any criminal charge or civil suit if they use force – including deadly force – against an invader of the home.^[2] The law's nickname is a reference to the famous line uttered by Clint Eastwood's character Harry Callahan in the 1983 film Sudden Impact, "Go ahead, make my day."

Brutal Cheap Shot

Is this causing the tort of battery? It is apart of the game, 2min elbow penalties are given all the time. And just because he started seizing, does it make everything a lot worst?

Redding cops were justified in shooting young Los Gatos bank robber, authorities say

Ken McLaughlin

Mercury News

Officers were justified when they fired 46 bullets at a troubled Los Gatos High School graduate after he tried to rob a Redding bank last month with a BB gun that looked like a 9 mm Beretta, law-enforcement officials in the Northern California city said Wednesday.

At a news conference at the Redding Police Department, Police Chief Peter Hansen and Shasta County District Attorney Gerald Benito said they had concluded that several officers who fired their weapons at 20-year-old Brandon Michael Reuter had acted within the law as well as Police Department guidelines.

Authorities reported that Reuter received 14 bullet wounds — one in the head, the others in the hip and leg. He died at the scene.

Because of the intense interest in the case, the District Attorney's Office on Wednesday released a detailed account of the shooting, revealing that Reuter had pointed the Elite II BB gun at a police dog as if he were going to "execute" the German shepherd. The district attorney also reported that Reuter had made eye contact with Officer Mike Dimatteo as he raised his arm with the gun to shoulder height — triggering the fusillade of bullets from Dimatteo and other officers.

Benito said that of the seven officers chasing Reuter, six fired their weapons. One of the officers' guns jammed, however.

"The officers' actions were justified and were based on their perceptions that their lives and the lives of fellow officers were in immediate danger of serious injury or death," Police Chief Hansen said.

Benito said no criminal charges will be filed against any of the officers, saying they behaved "bravely, professionally and rationally."

The police dog was not hurt in the shooting.

Benito said that Reuter's death was the result of his actions and no one else's.

The stunning downfall of a young man who graduated less than three years earlier near the top of his high school class was a shock for many in the town of Los Gatos, which has seen a string of tragedies involving young people in the past 13 months.

Reuter's family in Los Gatos did not respond to a request to comment on the results of the investigation. But friends of Reuter said the results were not surprising.

"I question why so many bullets were fired, but if someone goes into a bank with a weapon that looks like a handgun, you know you're asking for it," said Andrew Puckett, 21, a friend in middle school and high school. "But this is such a horrible tragedy, such a waste of life. It just breaks my heart."

Reuter's friends are still mystified by the turn of events. When he graduated from Los Gatos High in 2007, he received an award for academic excellence.

But police reports and court records tell the tale of a life that gradually descended into mental illness since he entered the University of Colorado at Boulder.

On Nov. 11, his mother, Marie Reuter, had called Los Gatos police, saying that her son was depressed, behaving erratically and had suicidal thoughts, Benito said Wednesday. She also reported that he had recently dropped out of college and sold his car.

Brandon's close friends described him as kindhearted and fun-loving, saying that he smoked marijuana and drank alcohol but was never into hard drugs.

Reuter had been spotted by friends in Los Gatos at the end of November just days before he boarded a Greyhound bus to Redding. He ended up spending the last days of his life in the Stardust Motel, where police say he left behind stickup notes for a series of planned heists.

Authorities on Wednesday released photos of Reuter wearing aviator-style sunglasses and a hooded sweatshirt when he entered the Plumas Bank on Dec. 7, pointed a gun at a teller, saying "Give me your money. This is a robbery." The tellers handed over $3,065 after Reuter said he would start shooting if he didn't get the money, police said.

With officers in pursuit, Reuter's life ended near a dry canal with the loot in his boot. His BB gun was not loaded.

Ryan Sabalow and Dylan Darling of the Redding Record Searchlight contributed to this report.

Contact Ken McLaughlin at 408-920-5552.

Supreme Court Establishes 'Nerve Center' Test for Corporate Jurisdiction

Marcia Coyle

The National Law Journal

February 24, 2010

Using simplicity and practicality as its touchstones, a unanimous U.S. Supreme Court on Tuesday held that a corporation's "principal place of business" for purposes of federal jurisdiction is its "nerve center," typically where its headquarters is located.

The Court, in an opinion by Justice Stephen Breyer, resolved a long-simmering debate among the federal circuits, which, for the past 51 years, have used a hodgepodge of tests to answer the jurisdictional question.

The ruling in Hertz Corp. v. Friend (pdf) will help to determine the battlefields on which class action and other litigation involving multistate corporations will be fought -- what corporations perceive to be the friendlier forum of the federal courts or state courts seen as more sympathetic to plaintiffs.

Noting that there is no perfect test, Breyer wrote, "Our test nonetheless points courts in a single direction, towards the center of overall direction, control and coordination. Our approach provides a sensible test that is relatively easier to apply, not a test that will, in all instances, automatically generate a result."

The high court ruling stems from a lawsuit brought by two Hertz employees in California who are seeking damages and relief for themselves and a potential class of California citizens for violations of that state's wage-and-hour laws.

The justices rejected the approach taken by the 9th U.S. Circuit Court of Appeals, which looked to where the corporation had the "substantial predominance" of its activities, including facilities, employees and revenue. That approach led the 9th Circuit to hold that Hertz's principal place of business was California, even though the company is incorporated in Delaware and has its headquarters in New Jersey.

The 5th, 6th, 8th, 10th and 11th circuits have used a "total activity" test that examines the company's purposes, type of business and legal site of its operations. The 1st, 2nd and 4th circuits applied a variation of that test, and the 3rd Circuit looked for the "center of corporate activity."

The only circuit to use the "nerve center" approach is the 7th, and that was the test advocated by Hertz's counsel, Sri Srinivasan, a partner in the Washington office of O'Melveny & Myers.

"This opinion brings much needed clarity to an area that was rife with confusion for decades," Srinivasan said. "Instead of having an approach that has caveats in it, the court established a straightforward rule. It was very interesting, too, that the Court said, 'We need clarity so much that we're even willing to accommodate some results that are anomalous on the surface.' "

Before 1958, the federal diversity statute said a corporation was only a citizen of its state of incorporation. But Congress found that some corporations engaging in local business were able to circumvent their local courts and get into federal court by getting out-of-state charters. Its evidence: more cases involving state-law claims and parties having the same citizenship were burdening the federal courts. Congress amended the diversity statute to state that a corporation was a citizen of its state of incorporation and of the state where it had its "principal place of business," but it never defined the new category.

Andrew Tauber, a partner in the Washington office of Mayer Brown, said the Court's rule is predictable in its application; eliminates the need for extensive and costly jurisdictional discovery; and does not have the peculiar result of deeming most national corporations, including, for example, Arkansas-based Wal-Mart Stores Inc., to be citizens of California merely by virtue of the size of the California economy.

The justices remanded the case to the lower court to give the Hertz employees "a fair opportunity" to litigate their case in light of the decision.

The Court's ruling was "what everyone anticipated after the argument," said the employees' counsel, Robert Stein III, a partner in the Santa Ana, Calif., office of Adorno & Yoss, whose co-counsel, Todd Schneider of San Francisco's Schneider Wallace Cottrell Brayton Konecky argued the case. "It appeared they were going to weigh practicality much more heavily than legislative history."

18-1-704.5 Use of Physical Force Against an Intruder (Colorado's "Make My Day" law)

(1) The general assembly hereby recognizes that citizens of Colorado have a right to expect absolute safety within their own homes.

(2) Notwithstanding the provisions of section 18-1-704, any occupant of a dwelling is justified in using any degree of physical force, including deadly force, against another person when that other person has made an unlawful entry into the dwelling, and when the occupant has a reasonable believe that the other person has committed a crime in the dwelling in addition to the uninvited entry, or is committing or intends to commit a crime against a person or property in addition to the uninvited entry, and when the occupant reasonably believes that such other person might use any physical force, no matter how slight, against any occupant.

(3) Any occupant of a dwelling using physical force, including deadly force, in accordance with the provisions of subsection (2) of this section shall be immune from criminal prosecution for the use of such force.

(4) Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from civil liability for injuries or death resulting from the use of such force.

Most Popular Conspiracy Theories

This was a link (http://www.newsweek.com/id/233518?GT1=43002)on msn.com titled 'Most Popular Conspiracy Theories' and it reminded me of what we talked about in class on Monday as far as 'fighting words' and the types of unprotected speach not under the first amendment...I though these conspiracy theories were pretty funny. Have a look!

Know Your Conspiracies
NEWSWEEK's guide to today's trendiest, hippest, and least likely fringe beliefs.


1. Barack Obama was not born in the United States.
It's not clear where he must have been born instead: some say Indonesia; some say Kenya (initial suggestions that Hawaiian natives weren't citizens when he was born in Honolulu in 1961 were quickly dismissed). The point, so-called birthers say, is that he wasn't born in the good old US of A, hence isn't a natural-born citizen and therefore cannot legally be president.
Proponents: Chief birther and Beverly Hills dentist and attorney Orly Taitz, WorldNetDaily editor Joseph Farah, Rep. Nathan Deal (R-Ga.), former presidential and Senate candidate Alan Keyes, assorted tea partiers.
Kernel of Truth? It's fully debunked. Forged Kenyan birth certificates have been exposed, and—despite protestations to the contrary—Obama's birth certificate has been certified by the state of Hawaii, and images have been shown on national television. And that's leaving aside plenty of circumstantial proof, like birth announcements in both major Hawaiian papers from August 1961.

2. Anthropogenic global warming is a hoax. Proponents of the theory that the earth's temperature is rising—especially Al Gore and the United Nations—are trying to pull the wool over the world's eyes. Some believers say that warming is negligible in the scope of geological history, and many argue that even if warming is happening, it's not because of human activity. The goals of Gore and his ilk, they say, are to kill market competition, encourage socialist control, keep scientists' research coffers filled, and/or work to bring about a one-world government by giving the U.N. power to regulate the climate and by eroding national sovereignty.
Proponents: Sen. James Inhofe (R-Okla.), rogue Canadian climate scientist Tim Ball, journalist and British aristocrat Lord Christopher Monckton, Sarah Palin, National Review.
Kernel of Truth? Deniers have long taken advantage of scientists' cautious statements, and "Climategate" breathed new life into the movement, but the science stands: warming is real, and it's caused by human actions.

3. Goldman Sachs intentionally created the economic crisis.
Swooping in from the left, Rolling Stone screed-master Matt Taibbi argued in July that investment bank Goldman Sachs, "a great vampire squid wrapped around the face of humanity," has for years created bubbles (dotcom, real estate) while betting against them. As a result, it reaps gains from the run-up but also wins big in the collapse because of its hedges. Ergo, Goldman Sachs created the financial crisis for its own gain. A less virulent strain of this theory notes the many former Goldman execs (Hank Paulson, Robert Rubin, Joshua Bolten, Neel Kashkari, etc.) in government and posits that they have designed the government's economic policy to help the firm.
Proponents: Matt Taibbi, journalist Robert Scheer, Glenn Beck, the Pragmatic Capitalist, the blogosphere.
Kernel of Truth? Goldman undoubtedly did better than any competitor from the financial crisis, and CEO Lloyd Blankfein even admitted—albeit cryptically—that the company had "participated in things that were clearly wrong." This theory is tougher than others to debunk fully, because there's no empirical data available either way. Nonetheless, while Goldman may have profited, that alone doesn't prove malice or conspiracy.

4. Democrats' health plan will create death panels. Part of Barack Obama's devious plan to reform health insurance will be the creation of panels of experts who will decide whether or not patients are "worth" treating, making them arbiters of life and death.
Proponents: Sarah Palin,Sen. Charles Grassley (R-Iowa), a lot of angry town-hall-meeting attendees.
Kernel of Truth? Palin was apparently referring to a provision of draft legislation that would have funded consultation about end-of-life care. There was and is, however, no plan for rationing care as a cost-cutting measure, and fact-checking outlet PolitiFact named the theory the "Lie of the Year" in 2009.

5. Barack Obama is a secret Muslim. Drawing many of the same backers as the birther movement, this theory claims that Obama was indoctrinated into Islam while living in Indonesia during his childhood. They worry Obama is trying to undermine America's Judeo-Christian heritage, institute Islamic religious law, betray Israel to the Arabs, and perhaps even allow Al Qaeda to win the war on terror.
Proponents: Anonymous chain e-mail, Libyan dictator Muammar Kaddafi, Swift Boater and propaganda wizard Jerome Corsi.
Kernel of Truth? Nope. Obama belonged to a Christian church in Chicago (for which he ironically also caught flack) and has a record of unambiguous support for Israel and hawkish policies on eradicating Al Qaeda's strongholds in Afghanistan and Pakistan.

6. Sarah Palin is not the mother of her 1-year-old son, Trig.
Someone else—perhaps even her daughter Bristol—is.
Proponents: Journalist and blogger Andrew Sullivan and … well, that's about it. Perhaps also Joy Behar.
Kernel of Truth? No. Sullivan has couched the whole thing as just pointing out minor discrepancies and asking for reasons—not directly making accusations. Palin has understandably refused to dignify these questions with responses. No one else has picked up the theory publicly, although privately some liberals regard it as plausible.

7. ACORN is part of a liberal conspiracy to steal elections.
The coalition of community organizations first came under fire after allegations that members were filing fraudulent voter-registration forms in order to beef up the Democratic vote in the 2008 elections. Pressure heated up after a videotaped sting humiliated the group.
Proponents: Glenn Beck, conservative commentators Michelle Malkin and Andrew Breitbart, Rep. Steve King (R-Iowa), unsuccessful N.Y. Conservative Party congressional candidate Doug Hoffman.
Kernel of Truth? The James O'Keefe videos showed questionable conduct at the very least, but neither they nor anything else proves a vast left-wing conspiracy between Democrats and ACORN to steal elections.

Medical Injury Compensation Reform Act Inflation Adjustment

In our previous discussions about the two medical malpractice cases in the videos (the breast cancer case and the HIV/AIDS case), Professor Custin brought up the Medical Injury Compensation Reform Act (MICRA), which was instated in 1975. Since the year it was put into effect in 1975, MICRA had a $250,000 cap for California and a $100,000 cap for Florida, which were never adjusted to inflation for all these years. According to the Inflation Calculator(only up to 2008), here is how much what MICRA cap amounts are worth today :

California:
1975: $250,000 ----> 2008:$1,040,292.19

Florida:
1975: $100,000 ----> 2008: $416,116.88

As you can see, the caps are suppose to be increased about 4 times if they were to be adjusted to inflation. And because the inflation calculator only goes up to 2008, it should be a bit more for the amounts listed above.

County settles for $4.1 million in wrongful imprisonment suit

Tim Masters jokes with his attorney, Maria Liu, the day after his 2008 release from prison.

STORY HIGHLIGHTS

• Tim Masters freed in 2008, following 10 years in prison, after new evidence surfaced
• Masters filed suit against Larimer County, Fort Collins, alleging malicious prosecution
• Attorney: Masters, living with aunt, wants "to re-establish himself as a human being"
• Fort Collins says it can't discuss pending lawsuit, but is presently "negotiating" with Masters

(CNN) -- It won't make up for almost a decade of imprisonment, but a $4.1 million settlement is a "good start," one of Tim Masters' attorneys said Tuesday.

The Larimer County, Colorado, Board of Commissioners voted earlier Tuesday to settle a lawsuit that Masters filed after a judge exonerated him on a murder charge that put him behind bars in 1999.

"There's no dollar figure that's going to give him back his 10 years," said David Wymore, one of the attorneys who represented Masters in the case. "Tim just wishes this never happened to him, but it did."

Masters was 15 when Fort Collins, Colorado, police began investigating him in the murder of 37-year-old Peggy Hettrick, who was found murdered and sexually mutilated in a field near Masters' family home.

He was convicted largely on circumstantial evidence and the testimony of an expert witness who said he fit the profile of a sexual predator. A judge freed Masters in 2008 after new evidence was presented in the case. The crime remains unsolved.

Masters' co-counsel David Lane emphasized there is still a lawsuit pending against the city and that Tuesday's settlement represented only a "good start" to compensating a man who was "framed for a crime he did not commit."

Wymore, who also represented Masters in the criminal proceedings that saw the charges against him dismissed, said he is pleased with the settlement, but feels "someone should apologize to Tim one day because it's not just an accident."

Case History

In 1987, a bicyclist found the maimed body of Peggy Hettrick, 37, near the home of Tim Masters.

Masters, then 15, quickly became the top suspect in the slaying, but it was not until 1999 that police and prosecutors saw Masters convicted. He was sentenced to life in prison.

In hearings that began in September 2007, Masters' new defense team alleged police and prosecutorial misconduct in the investigation and trial.

In January 2008, a judge threw out the conviction and freed Masters after DNA evidence pointed to someone else.

Later that year, Masters' attorneys filed a lawsuit against several Fort Collins police officers and former prosecutors, alleging malicious prosecution, attorney Maria Liu says.

Masters, 38, was unable to comment because of the case pending against Fort Collins and some of its police officers. In a statement from his attorney, Masters said he was pleased with the county settlement and eager to conclude the proceedings.

"I would gladly have paid $10 million, or whatever it took, if I could get those years of my life back. Unfortunately, that can never happen," Masters said in the statement.

Kelly DiMartino, a spokeswoman for the city, said Fort Collins is presently negotiating with Masters, but she was unable to share details because it involves pending litigation.

Tuesday's settlement -- $3 million of which will be paid by the county's insurer -- closes the case against the county and two of its judges, Terry Gilmore and Jolene Blair, who were prosecutors in the case that jailed Masters.

A news release said the county had already paid more than $400,000 defending the case and officials believe Gilmore and Blair "handled the Masters prosecution with the utmost professionalism and confidence."

It also said Gilmore, Blair and District Attorney Larry Abrahamson objected to the settlement.

"They would rather have had their day in court," county attorney George Hass said.

The settlement indicates no wrongdoing, explained Hass. Rather, he said, the county was concerned by the prospect of a jury assigning more exorbitant damages. The county decided it would settle for $4.1 million "even though we felt we had a good case to defend," the attorney said.

Hass said he has seen juries dole out damages in excess of $10 million in similar cases, and "that would be a number the county would have to struggle with."

The money should be paid to Masters by February 25, Hass said.

It was 12 years after Hettrick's slaying before prosecutors convicted him and he was sentenced to life in prison.

Police procured no physical evidence in their investigation, and prosecutors relied largely on a collection of knives and gruesome doodles and sketches, as well as the testimony of a forensic psychologist who implicated Masters without ever interviewing him.

He wants to be a normal guy. He wants to get a house, a dog, a car.
--David Wymore, attorney for Tim Masters

RELATED TOPICS

• Tim Masters
• Fort Collins

Citing DNA evidence that did not implicate Masters, a visiting judge threw out the case in 2008, and Masters walked free.

A year after his release, Masters told CNN he maintained hard feelings for police and prosecutors in the case and said he felt he would have a wife and job if not for the bogus conviction. He was selling items on eBay at the time to earn money.

"They locked me up for a decade for something I didn't do," he told CNN.

Wymore said Tuesday that Masters' eBay income has dried up since he spoke to CNN last year. He is presently living in his aunt's basement and attending school to be recertified as an aircraft mechanic, a job he enjoyed during his eight years in the Navy.

"The settlement allows Tim to re-establish himself as a human being," Wymore said. "He wants to be a normal guy. He wants to get a house, a dog, a car."