From the Sidebar - Trial, Litigation and The Practice of Law

by:  Hayes Hunt and Jonathan Cavalier

Over the past decade, many European countries have passed laws mandating that individuals and employers report criminal conduct.  In the United States, however, individuals are typically not required to report criminal conduct that they have observed.  Likewise, employers have no general duty to report criminal conduct by their employees.  Often, this lack of an affirmative duty or any other incentive to report criminal conduct will lead an employer to simply look the other way, rather than risk disrupting workflow, losing a valuable employee, bringing negative publicity on the company or facing liability for invasion of privacy or defamation. Consider the following scenario:

SCENARIO: A salesperson for a manufacturing company is having a record-setting year.  His sales are continually the best in the company.  Another employee notices a competitor’s price list and contacts sheet on his desk.  When asked about these materials, the employee reveals that he used to work for the competitor and that, when he left, his former supervisor failed to disable his computer access.  He has since continued to log in to his former employer’s system to gain access to information that enables him to undercut his competition on price.  What should his current employer do?

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by:  Hayes Hunt and Jonathan Cavalier

Over the past decade, many European countries have passed laws mandating that individuals and employers report criminal conduct.  In the United States, however, individuals are typically not required to report criminal conduct that they have observed. Likewise, employers have no general duty to report criminal conduct by their employees.  Often, this lack of an affirmative duty or any other incentive to report criminal conduct will lead an employer to simply look the other way, rather than risk disrupting workflow, losing a valuable employee, bringing negative publicity on the company or facing liability for invasion of privacy or defamation.

However, not all situations are created equally, not all crimes are treated the same, and exceptions exist that may require employers to report the criminal actions of their employees.  Consider the following scenario:

Scenario:  An employee uses his personally-owned iPad for work purposes.  He uses the iPad for work when he travels and takes work home with him on it.  The employee brings his iPad in to have the employer’s IT personnel fix a problem with his email accounts.  While performing maintenance, the IT department discovers child pornography on the device.  Should the employer report the employee to the authorities?  Must the company report the employee and, if so, to whom?

This is perhaps one of the more difficult situations that an employer can face.  Unfortunately, with the proliferation of technology and the intermingling of employer- and employee-owned technology, this situation arises more frequently than anyone would care to admit.  When it does, the employer is often confronted with a problem of balancing the need (and desire) to report such an employee to the authorities with the potential exposure resulting from the employee’s potential privacy rights.

Recent changes to federal law have made the answer to this problem clear: the employer must report the employee.  18 U.S.C. § 2258A requires any provider of an “electronic communications service” or “remote computing service” to report information about the employee, including identity, email and/or IP address, or any other identifying information to the National Center for Missing and Exploited Children.  An “electronic communications service” is defined by the law to include “any service which provides to users the ability to send or receive wire or electronic communications.”  In other words, any business which provides its employees with email is subject to the law, and penalties for violations are harsh.  Many states have passed similar laws requiring similar reports.

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By:  Hayes Hunt and Calli Varner

The shooting death of 17-year-old Trayvon Martin in Orlando, Florida has focused tremendous attention on Florida’s contentious Stand Your Ground law, passed in 2005.  Since enactment, claims of justifiable homicide in Florida have more than tripled.  The Tampa Bay Times reports that the defense has been claimed in 130 cases, 70% of which involved fatalities. More than half of these cases, however, did not go to trial at least partially due to the invocation of the defense. 

So why are these cases not being tried?  Under common law, a person has a “duty to retreat” prior to using deadly force on another.  This aptly named “Castle Doctrine” applies when a person is in his or her home and has the right to use deadly force without first exercising the “duty to retreat.”   Florida’s Stand Your Ground law extends the Castle Doctrine outside one’s home to include public places.  Pursuant to the law, a person in any other place has no duty to retreat and has the right to use deadly force if he or she reasonably believes it is necessary to prevent death or bodily harm or to prevent the commission of a forcible felony.  Once a person claims they felt as though the use of deadly force was necessary to protect themselves it becomes difficult to investigate and ultimately to prosecute.  This is especially true where, as is often the case, there are no third-party witnesses and, as in the Martin matter, the only witness other than the shooter is dead. 

The Stand Your Ground law becomes even more controversial when the defense is claimed by members of neighborhood watch groups.  Florida is considering a bill that would require neighborhood watch groups to register, since there are no laws or regulations governing such organizations.  The purpose of these groups is to promote safety and reduce crime by reporting suspicious activity to local law enforcement.  One concern over Florida’s Stand Your Ground law is that it allows these groups to go even further — and use deadly force to prevent the commission of a forcible felony.  Opponents argue that this portion of the statute encourages vigilantism by providing a broader justifiable defense for pursuing and shooting another person. 

The shooter in the Martin case, George Zimmerman, based on his conversation with 911 dispatch (listen:  2FXV_call1.wav), did not merely watch and report.  Zimmerman pursued Martin despite being requested not to do so.  In this instance, the civic principles of “watch and report” accelerated into “follow and confront.” To date, Zimmerman has not been charged with a crime. 

The Martin case is still being investigated at the local level and by federal Justice Department officials.  A task force has been established by a group of Florida legislators to examine whether any changes are needed to the law or simply repeal it.  Lawmakers need to decide whether Stand Your Ground law is a necessary extension of self-defense or, rather, promotes vigilantes to kill in the name of the law.

by Hayes Hunt and Brian Kint

An investigation conducted by the NFL revealed that a number of defensive players and coaches from the New Orleans Saints maintained a “bounty” program.   As punishment, last week the NFL suspended Super Bowl-winning New Orleans Saints’ coach Sean Payton for a year for overseeing the bounty program.  Senator Dick Durbin of Illinois is in the process of creating a Judiciary Committee to debate making bounty systems in professional sports a Federal crime. 

The Saints’ bounty program violated league rules by giving cash bonuses to players for delivering hard hits to the opposing players.  The most controversial bounties were given to players who injured key adversaries.   Players earned more cash based on the severity and effect of the injury inflicted. Thus the rewards were greater if the quarterback sustained a concussion and had to leave the game than for a hit that required a right guard to sit out a down while his ankle was taped on the sideline. 

Generally, the law shields professional athletes from civil liability for their on-field conduct through the doctrine of voluntary assumption of risk.  Each play in a football game contains numerous hits that would be considered an assault and battery outside the chalk of the field’s lines.  Sometimes, players are hurt.  The injured player cannot sue the opposing player because he accepted the obvious risks inherent in playing an NFL football game, including the risk of being hit hard. 

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By:  Hayes Hunt and Calli Varner

Computer encryption software is no longer for the technologically advanced.  This readily available software allows average computer users to transform plain text into indecipherable symbols, inaccessible to anyone without a password.  With a few clicks of a mouse, computer hard drives become impossible to break into for advanced hackers and, even, FBI cyber squads. In response to this technology, prosecutors in Colorado were recently successful in obtaining a court order requiring a woman, charged with a crime, to meet with FBI agents and unlock files found on her laptop. 

Ramona Fricosu was indicted in 2010 for bank fraud connected to what authorities allege was a mortgage scam targeting people facing foreclosure.  Prosecutors claim the scheme defrauded banks of more than $900,000.  The FBI obtained a warrant and searched Fricosu’s home, recovering several computers, including a laptop containing the encrypted information.  The FBI asked Fricosu to decode the laptop, but she, understandably, refused and invoked her Fifth Amendment right against self-incrimination.

Last month, federal judge Robert Blackburn ordered Fricosu to turn over an unencrypted version of the hard drive.  Although he recognized the long-standing legal principle that the contents of one’s mind is protected by the Fifth Amendment, Blackburn ruled that requiring Fricosu to unencrypt her laptop was not a violation of her Fifth Amendment right; Blackburn decided that the government already had evidence that she was the primary user of the laptop and they would not gain any additional incriminating evidence.  In essence, the existence of the files was a “foregone conclusion” that didn’t reveal any new information prosecutors didn’t already know. If that was true, there is little vailidity to compel her to unlock the computer for the prosecutors. The 10th Circuit Court of Appeals upheld Blackburn’s decision and the case may end up in front of the U.S. Supreme Court.    

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