3rd Party Doctrine – Fourth Amendment Slippery Slope

 

The Fourth Amendment is being discussed in our next class, seems a simple topic to write about.  As I am learning in the MLS program, nothing is simple about understanding the legal framework and protections of the U.S. Constitution.  The Fourth Amendment is no exception.

FOURTH AMENDMENT

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or Affirmation, and particularly describing the place to be searched and the persons”

I have always thought that the Fourth Amendment only protected my home from being illegally searched without a warrant. 

When I think of information on my cellular phone, does the government need a warrant to look at this data?

What was the intent and purpose of our founders writing the Fourth Amendment?  How does the court look at defining whether there is a Constitutional violation of your rights? 

First, we need to understand Search and Seizure are two different things: 

Search

·       -Authorities coming into your private residence, self, or property looking for evidence

Seizure

·         -When authorities take property from the search or restrain/arrest a citizen

The definitions seem narrow, but they are not.  In fact, when we talk about illegal search and seizure it could relate to my vehicle, my person, my phone, my digital footprint, etc. 

To understand the Fourth Amendment further, we look to the courts and how they interpret this protection.  Katz v United States regarded the government listening to the conversation on a pay phone with a door, without a warrant.  Mr. Katz was running an illegal gambling operation.  He stated his Fourth Amendment rights were violated.  In this case, Justice John Marshall Harlan II established two criteria questions as a test for a reasonable expectation of privacy:

1.      1.   Did the individual have a subjective/reasonable expectation of privacy?

2.     2.   Was the expectation of privacy one that society would recognize as reasonable?

It was found that his Fourth Amendment rights were violated, and the case was remanded by the U.S. Supreme Court.

These questions now became a judicial lens for all future Fourth Amendment cases in the future.

Think about it, the founders had no idea what a public pay phone was in 1791 or how it would relate to our protections today.  However, the Fourth Amendment does apply, and the courts are faced with interpreting the law in different contexts to apply to unforeseen infringements on our rights. 

We really could go down a rabbit hole with this topic today.  However, I only want to focus on information on our cellular phones that would fall under the 3^rd Party Doctrine established by United States v. Miller.  Let's define:

Third-Party Doctrine

“Legal doctrine that holds that people who voluntarily give information to third parties have no reasonable expectation of privacy in that information”

In this case, the U.S. Supreme Court held that a warrant was not required for third-party information we have freely given.

I don’t know about you, but every application on my phone, website, social media portal, and email hosting service requires me to read an exhaustive contract that I must digitally sign.  I have no idea if I am agreeing for them to share all my data. 

Is this information not protected by the Fourth Amendment?  Well, that is the challenge faced by the courts today.  Data privacy is at the forefront of State and Federal Legislation today due to the complexities of this issue.

Case law is being established such as Carpenter v. United States in 2018.  The Supreme Court held in a five to four decision that the GPS location on your phone could not be tracked without a warrant.  However, there was disagreement being that it’s third-party data.  This was a big win for our rights to privacy, but will it be addressed differently in the future?

What is being done today?  States are weighing in and creating privacy laws such as the California Consumer Privacy Act (CCPA) which is the most expansive law I have found.  In fact, only 4 States have weighed in on this issue, California, Virginia, Colorado, and lucky for us, Utah.

Do you think your Fourth Amendment rights are not protected with your cellular phone due to the third-party doctrine?  Does this worry you or how do you see your use of this device change in the future?

I didn’t talk about it on the blog, but I added an interesting link regarding Snapchat, a gun, and your rights.  Also, I did not broach Probable Cause, Exclusionary Evidence, or other topics relating to the Fourth Amendment.  I encourage you to do your own research.  Thanks for reading my blog.

 https://www.youtube.com/watch?v=OG6M_h8bBNE

https://dlglearningcenter.com/from-snapchat-to-searches-social-media-post-leads-to-fourth-amendment-violation/#:~:text=From%20Snapchat%20to%20Searches%3A%20Social%20Media%20Post%20Leads%20to%20Fourth%20Amendment%20Violation

 

Tainted Evidence, Tainted Deputies, Tainted Attorney, Tainted System

That's Not Nearly All

By Justin Nicolas

Fuqua, A. (Director). (2001). Training Day [Motion Picture]

Orange County of California has recently been strife with scandal. It all seems to stem from the mishandling of evidence. The fruits from that scandal are poisonous to the constitutional rights of many.

Investigations and audits in to Orange County Sheriff's Department (OCSD) exposed gross handling of evidence. OCSD policy required deputies to book in evidence by end of shift. Almost a third of evidence collected between 2016 and 2018 were booked pass deadline. An average of three and a half days went by before evidence was properly submitted. While in limbo, evidence was stored in numerous places like that back of deputies' vehicles and even their homes. It is speculated that more than nine thousand pieces of evidence are unaccounted for.¹

Another Orange County controversy emerged around the same time that the evidence scandal came to light. Orange County District Attorney's Office (OCDA) and OCSD was also investigated by the U.S. Department of Justice (DOJ) Civil Rights Division. The DOJ found that OCDA's and OCSD's custodial informant program violated defendants' constitutional rights. OCSD used under inmates as their own agents to elicit incriminating statements from defendants. That violated a defendant's right to counsel under the Sixth Amendment. OCDA did not share exculpatory evidence about the informants to criminal defendants. In failing to do so OCDA violated the Fourteenth Amendment right to due process of law.² 

More scandals from within the scandals have emerged. In 2020, Sheriff employees have been criminally investigated.⁴ In 2021, an Orange County Grand Jury decided an investigation of procedures and safeguards was needed.⁵ In 2022 Ebrahim Baytieh, was fired as prosecutor, is now a judge being questioned for his involvement.⁶ In May of this year, seventeen sheriff deputies faced possible criminal prosecution. 

Orange County is just one of the many places that have similar issues of negligence and alleged corruption.⁷

To Make Things Right...

...the Supreme Court of the United States (SCOTUS) made rules to deter misbehavior of law enforcement. 

• In what ways OCSD and/or OCDA broke the Exclusionary Rule?
• Were they acting in good-faith or bad-faith? 
• Is it reasonable for law enforcement to keep evidence in their home?
• What safeguards could prevent tainting of evidence?

                    

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¹Romo, V. (2019, December 8). Evidence Scandal In Orange County Stirs Conflict Within Law Enforcement. Retrieved from National Public Radio: https://www.npr.org/2019/12/08/786135739/evidence-scandal-in-orange-county-stirs-conflict-within-law-enforcement; Romo, V. (2019, December 5). Orange County Sheriff's Dept. Mishandled Evidence; 

Kept It Quiet For Nearly 2 Years. Retrieved from National Public Radio: https://www.npr.org/2019/12/05/785256290/orange-county-sheriffs-kept-evidence-booking-crisis-secret-for-nearly-two-years.

²U.S. Examines Whether Orange County Violated Defendants’ Rights. (2016, December 15). Retrieved from The New York Times: https://www.nytimes.com/2016/12/15/us/orange-county-justice-department.html?searchResultPosition=1; 

Division, D. o. (2022, October 13). Investigation of the Orange County District Attorney’s Office and the Orange County Sheriff’s Department. Retrieved from Office of Public Affairs Department of Justice: https://www.justice.gov/d9/press-releases/attachments/2022/10/13/orange_county_findings_report_10.13.2022_0.pdf

⁴Gerda, N. (2020, August 7). OC Sheriff Evidence Booking Scandal Expands With 15 More Investigations of Deputies Disclosed. Retrieved from Voice if OC: https://voiceofoc.org/2020/08/oc-sheriff-evidence-booking-scandal-expands-with-15-more-investigations-of-deputies-disclosed/; 

Bartley, L. (2023, May 6). Judge orders OCSD to turn over confidential files on sergeant accused of eavesdropping. Retrieved from ABC7: https://abc7.com/orange-county-attorney-client-phone-calls-matthew-leflore-investigation-mishandled-evidence/13217166/

⁵Kelly, S. (2021, July 1). Orange County Grand Jury 2020-2021 Report. Retrieved from Orange County Grand Jury: https://ocgrandjury.org/sites/jury/files/2023-06/2020-2021_Grand_Jury_Final_Report_0.pdf

⁶Biesiada, N. (2023, September 7). Could Scores of Convicted Criminals in OC Get New Trials Due to Prosecutors Misconduct? Retrieved from Voice of OC: https://voiceofoc.org/2023/09/could-scores-of-convicted-criminals-in-oc-get-new-trials-due-to-prosecutors-misconduct/

⁷Kelly, J., & Nichols, M. (2020, June 11). TARNISHED BRASS. Retrieved from USA Today: https://www.usatoday.com/in-depth/news/investigations/2019/04/24/usa-today-revealing-misconduct-records-police-cops/3223984002/

Billable Hours in CrazyTown

 

Photo: Example of the Sovereign Citizen License Plate available on Amazon

On March 1, 2023, after being pulled over for not having legal license plates, Chase Allen was killed by police in Farmington after he pulled a gun on officers.  The District Attorney declined to press charges against the arresting officers because it was determined they “had a reasonable, articulable, and objectively verifiable belief that the use of deadly force was necessary to prevent death, or serious bodily injury to themselves or others.”[1]  It was brought out that Chase and his parents are members of the Sovereign Citizen movement.  This case brings attention locally to the movement and highlights the potential ethical conflict that can be created for an attorney if asked to defend a Sovereign Citizen.

Sovereign Citizen Movement

It's estimated that there are as many as 300,000 or more self-proclaimed Sovereign Citizens in the United States alone.  Their core beliefs include that “the US government (is) illegitimate, that common law supersedes Federal law, and that they are not U.S. Citizens, but rather ‘natural persons’ not subject to government authority.”[2]

Ethical Practice

Model Rules of Professional Conduct outline ethical legal practice. Rule 1.1 requires that attorneys competently represent their clients by possessing adequate expertise in the relevant area of law.[3]  It also states in 1.2 that the lawyer is to follow the client’s decision concerning the objective of representation.[4]

Conflict

In Nix v Hoke (2004) the 9^th circuit court affirmed that even obstinate or misinformed clients retain legal rights to representation on appeal.[5]  Conversely, in United States v. Schneider (1990) the 9^th circuit also ruled that attorneys have an ethical obligation to withdraw if a client demands pursuit of frivolous or false legal filings.[6] Utah Rule 1.16 outlines declining representation. Rule 1.16(b)(2) asserts that an attorney may terminate representation of a client if the client persists in a course of action involving the lawyer services that the lawyer reasonable believes is criminal or fraudulent.[7]  The fake laws that Sovereign Citizen demand to have applied to them are fraudulent.

Discussion:

Is there an ethical conflict created by these cases? One seemingly calls for an attorney to withdraw if the client insists on frivolous or false filings, while the other says that criminal defendants retain the right to counsel despite frivolous defenses.

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[1] Pierce, Scott D., “Farmington Police Shooting of Suspected Sovereign Citizen Chase Allen Ruled Justified.” Salt Lake Tribune, 13 Sep 2023 https://www.sltrib.com/news/2023/09/13/farmington-police-shooting/

[2] Sovereign Citizens Movement. Southern Poverty Law Center. (n.d.). https://www.splcenter.org/fighting-hate/extremist-files/ideology/sovereign-citizens-movement 

[3] UCJA Rule 13-1.1

[4] UCJA Rule 13-1.2 (a)

[5] ELLEN SEGAL HUVELLE, U. S. D. J. (2001, April 26). Nix v. Hoke. https://casetext.com/case/nix-v-hoke-2

[6] POSNER, C. Judge. (1990, August 24). U.S. v. Schneider. https://casetext.com/case/us-v-schneider-16

[7] UCJA Rule 1.16(b)(2)

How Many Parties Is Too Many?: “The Last of Us” Star Files Complaint in Abuse Case

 By Jenna Nelson

Actress Ashley Johnson re-entered the media spotlight this year due to her hit video game, “The Last of Us,” being remade into an HBO series. Amongst the praise for the show and her role in the series, details of her relationship with media producer Brian Foster emerged. [1] The fallout of their relationship came to a head when Johnson and six other plaintiffs filed a complaint against Foster in the California Superior Court for his threats, violence, and abuse (full complaint available here). The exposé-esque filing raises questions surrounding the number of parties in the lawsuit.

The Plaintiffs

Each of the seven plaintiffs had different relationships with Foster, diverse causes of action against Foster, and separate sets of facts related to their case. The plaintiffs include Johnson, Johnson’s sister, and five of Foster’s friends and acquaintances. The complaint has eight causes of action, each related to Foster’s inappropriate behavior. However, not all defendants claim each one. This brings up a key question: how and why are these plaintiffs filing one complaint when they each assert different causes of action that emerge from separate events? 

They likely used the logic of permissive joinders, which allows plaintiffs to “join in one action… if they assert any right to relief… with respect to… the same transaction, occurrence, or series of transactions or occurrences.” [2] The “series of transactions or occurrences” in this case is Foster’s pattern of abusive behavior. But, it is still unclear why the plaintiffs filed under one complaint. What are the pros and cons of the plaintiffs filing together?

The Defendants

The defendants in this case are Brian Foster and Does 1 through 20. These unknown parties are responsible for the damages in this case as a “principal, agent, co-conspirator, aider and abettor, or alter ego.” 

This is a large number of potential defendants and a diverse set of roles these unknown parties may have played. For example, a legal alter ego refers to a corporation used to do personal business. [3] When reading the facts of the case, it is challenging to identify people other than Foster who are liable. It seems nearly impossible to identify that many defendants within discovery. Why did the plaintiffs include so many Does in their complaint?

[1] Abbey White, ‘The Last of Us’ Star Ashley Johnson and Six Other Women Allege Sexual, Physical Abuse by Brian Foster, The Hollywood Reporter (October 6, 2023), https://www.hollywoodreporter.com/news/general-news/last-of-us-star-ashley-johnson-6-women-allege-abuse-brian-foster-1235611230/.

[2] Federal Rules of Civil Procedure, Rule 20(a)(1).

[3] Alter Ego Definition, Black’s Law Dictionary 11th ed. 2019.

 

"To Settle, or Not To Settle: That is the Question"

By: Marci Hutchinson 

 

On April 18, 2023 the “largest publicly known defamation settlement in US history involving a media company”[1] was announced as Fox News Network reached a settlement with Dominion Voting Systems. Fox News agreed to pay Dominion $787.5 million. No other specifics about the settlement have been publicly released.

The settlement was reached on the day the jury was sworn in and opening statements were to begin. This was following a two year time span from the filing of the complaint in the Superior Court of Delaware. You can read the complaint filing here, where they lay out the alleged facts supporting their complaint and Prayer for Relief for damages totaling $1.6 Billion for lost profits, lost enterprise value, security expenses, and expenses incurred to combat the disinformation campaign they claim that Fox News waged against them. The alleged campaign included repeatedly airing allegations, knowing they were false, that Dominion Voting Systems were “rigged” during the 2020 Presidential election and giving interviews on their programs to people making those allegations.[2]

Recently, at a speaking engagement at Harvard Law School Fox Corporation’s Chief Legal Officer Viet Dinh blamed “a series of errors” by the Delaware judge for forcing them to settle the case[3]. He is believed to be referring to the decision by the judge on March 31, 2023 to grant partial Summary Judgment to Dominion on the element of “falsity”. You can read the ruling here. Essentially, Fox News couldn’t argue at trial that the allegations may have been true and therefore they had an obligation to report them. It was ruled a material fact that the allegations of voter fraud related to Dominion Voting Systems were false.[4] The Judge stated:

“The evidence developed in this civil proceeding demonstrates that is CRYSTAL clear that none of the Statements relating to Dominion about the 2020 election are true. Therefore, the Court will grant summary judgment in favor of Dominion on the element of falsity.”[5]

Additionally, during the discovery phase emails, texts, and other communications between Fox News hosts and executives had been released.  You can read about those communications here as well as in the Summary Judgment ruling above.

I don’t think anyone could argue that $787.5 million is not a large sum of money. We learned last week in class how common settlements are and that most cases don’t make it to trial. But, why would parties go through years of expensive litigation only to settle at the last minute? What could be some motivating factors for parties to settle?

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[1] Marshall Cohen and Oliver Darcy, Fox News settles with Dominion at the last second, pays more than $787 million to avert defamation trial over its 2020 election lies, CNN.com April 19, 2023 https://www.cnn.com/2023/04/18/media/fox-dominion-settlement/index.html

[2] US DOMINION, INC., Dominion Voting Systems, Inc., and Dominion Voting Systems Corporation, Plaintiffs, v. FOX NEWS NETWORK, LLC, Defendant., 2021 WL 1153152 (Del. Super. March 26, 2021) (Trial Pleading)

[3] Brian Baxter, Fox Legal Chief Cites Judge Errors for $787 Million Settlement, Bloomberg Law October 16, 2023 https://news.bloomberglaw.com/business-and-practice/fox-legal-chief-cites-judge-errors-for-787-million-settlement

[4] US Dominion v. Fox News Network, WL 2730567 (Del. Super. Mar. 31, 2023) (Trial Pleading)

[5] Id. at 21

 

The Uncommon Truth About Legal Cases

by Naomi Batsuuri 

The facts associated with legal cases often fall into the trap of people believing third-party information including inaccurate reports on the media. For instance, the Liebeck v. McDonald’s Restaurants case is among the most notable lawsuits often termed as frivolous by various critics. However, it is crucial to understand the specific details and facts before forming an opinion about the case.

The case dates back to 1992 when Stella Liebeck, who was 79 at the time, was severely burned after spilling coffee on her lap. She had bought the coffee from McDonald’s. From a superficial point of view, it would be easy for one to question the validity of these lawsuits. For instance, one opinion would suggest that it was Liebeck’s fault because she spilled the coffee while another may contend that coffee is typically expected to be hot. These opinions are mostly formed without careful consideration of the case’s actual circumstances. In essence, the incident happened in a parked car where Liebeck was a passenger and not the driver. In addition, the coffee was exceptionally hot to a level likely to cause severe burns. This resulted in the victim suffering third-degree burns and even required skin grafts. As such, it would be credible to argue that this was a serious incident as opposed to notions that it was a frivolous injury.

It is also imperative to note that McDonald’s had previously received over 700 injury reports with some involving third-degree burns but failed to make substantial rectification efforts. Liebeck initially wanted to settle for $20,000 to help her cover medical expenses. However, McDonald’s was reluctant to offer more than $800. Consequently, the jury awarded compensatory and punitive damages amounting to $160,000 and $2.7 million respectively with the case ending in a confidential settlement. Therefore, as opposed to ideas that the case was frivolous, it is crucial to note that the facts of the case were corroborated by expert witness testimony and McDonald’s eventual admission of failure to warn customers about the risks in question.

Finally, other cases get settled without a trial. A recent example is the Dominion Voting Systems v. Fox News Network case. In the settlement, Fox paid about $800 million to Dominion Voting Systems in a move meant to avoid a trial. A trial would have been detrimental to the news network’s reputation as it relates to reports concerning the 2020 presidential election. The settlement seems significant, but it also raises questions about broader consequences for organizations like Fox News beyond payments meant to eliminate the possibility of trials.

Questions to think about: What is the role of public perception in directing narratives associated with legal cases? How does this impact settlements and the attainment of justice?

Do punitive damages constitute effective remedies in cases like Liebeck v. McDonald’s Restaurants? Should alternative methods to address corporate negligence and public safety be explored?

Sources:

Weiman, D., S. (2017, Jan 7). “The McDonalds' Coffee Case.” Huffpost 

 https://www.huffpost.com/entry/the-mcdonalds-coffee-case_b_14002362

Liebeck v. McDonald’s Restaurants

Dominion Voting Systems v. Fox News Network

 

Stolen Fire from the Gods: Legal Considerations for Wielding the Gift of AI

Ryne Vogel

In Greek mythology, Zeus withheld fire from humans to compel their penitence and devotion. Concerned for their vulnerability, the Titan Prometheus scaled Mount Olympus, stole fire from the Gods, and provided it to humans. Prometheus’ gift allowed humans to flourish while simultaneously enhancing their destructive capacities.

Like the stolen fire, Artificial Intelligence (AI) has the potential for advancement or devastation. However, the societal impacts of AI are not limited to a blissful utopia or catastrophic Armageddon. AI will also disrupt the mundane. For example, how might AI affect routine tasks performed by practicing attorneys or even judges?

The purpose of the Federal Rules of Civil Procedure (FRCP) is to “secure the just, speedy, and inexpensive determination of every action and proceeding.” ^[1] A 2008 survey identified discovery as a particularly costly phase of the litigation process, finding that in “medium-sized cases involving e-discovery, the estimated cost of just attorney time and vendor bills incurred in searching, retrieving, reviewing, and producing electronic information can average $3.5 million.” ^[2] AI is well-positioned to assist and cut costs in these areas.

 Individuals using AI can analyze documents and perform repeatable tasks faster and more affordably than individuals without AI ^[3], leading some to question junior associates’ future roles in law firms. ^[4] Some even postulate a future of impartial “Robojudges” who “tirelessly apply the same high legal standards to every judgment without succumbing to human errors such as bias, fatigue or lack of the latest knowledge.” ^[5] If these methods can improve efficiency and access to justice, wouldn’t the FRCP require their use?

Challenges abound, threatening adoption. For example, how will AI’s mistakes impact liability assessments? “If self-driving cars cut the 32,000 annual U.S. traffic fatalities in half, perhaps carmakers won’t get 16,000 thank-you notes, but 16,000 lawsuits.” ^[6]

The EEOC recently settled a lawsuit with a tutoring company that allegedly programmed their applicant tracking system to reject candidates based on age. ^[7] Some speculate a connection to AI. ^[8] A similar lawsuit alleging algorithmic bias was filed in California. ^[9] The EEOC is now considering enforcement possibilities for AI in hiring practices. ^[10]

Given that humans make mistakes independently, how much more accurate or less expensive will AI need to become before society determines that its use offers a more just legal system? How can society regulate the use of this “gift” in the legal field to ensure the best possible outcomes?

References

[1] Fed. R. Civ. P. 1.

[2] Electronic Discovery: A View from the Front Lines (2008), Institute for the Advancement of the American Legal System, supra n. 4, at 3‐4, 25.

[3] Karim Lakhani, AI won’t Replace Humans – But Humans with AI Will Replace Humans without AI, HBR Aug. 4, 2023, https://hbr.org/2023/08/ai-wont-replace-humans-but-humans-with-ai-will-replace-humans-without-ai (accessed Oct. 16, 2023).

[4] Jordan Furlong, Legal education’s day of reckoning approaches, Sep. 21, 2023  https://jordanfurlong.substack.com/p/legal-educations-day-of-reckoning, (accessed Oct. 15, 2023).

[5] Max Tegmark, Life 3.0: Being Human in the Age of Artificial Intelligence (Alfred A. Knopf 2017) 105.

[6] Id at 108.

[7] EEOC v. iTutorGroup, Inc. et al., E.D.N.Y., 22-cv-02565 (May 5^th, 2022), https://www.courtlistener.com/docket/63288748/1/equal-employment-opportunity-commission-v-itutorgroup-inc/ (accessed on Oct. 22, 2023).

[8] Annelise Gilbert, EEOC Settles First-of-Its-Kind AI BIAS in Hiring Lawsuit (1), Aug. 10, 2023 https://news.bloomberglaw.com/daily-labor-report/eeoc-settles-first-of-its-kind-ai-bias-lawsuit-for-365-000 (accessed on Oct. 22, 2023).

[9] Mobley v. Workday, N.D. Cal. Oakland Div., 23-cv-00770 (Feb. 21, 2023), https://www.bloomberglaw.com/public/desktop/document/MobleyvWORKDAYINCDocketNo423cv00770NDCalFeb212023CourtDocket?doc_id=X3RQKE3Q8C58PQRTUBPH4O34SIP (accessed Oct. 15, 2023).

[10] Draft Strategic Enforcement Plan, U.S. Equal Employment Opportunity Commission, Jan. 10, 2023, available at https://www.federalregister.gov/documents/2023/01/10/2023-00283/draft-strategic-enforcement-plan (accessed on Oct. 22, 2023).