Texas Appeals Court Brushes Off Section 230 In Allowing Lawsuit Over Sex Trafficking Against Facebook To Continue

from the it-continues-because-it-continues dept

Earlier this year, we mentioned, in passing, personal injury lawyer Annie McAdams' weird crusade against internet companies and Section 230. The lawyer -- who bragged to the NY Times about how she found out her favorite restaurant's secret margarita mix by suing them and using the discovery process to get the recipe -- has been suing a bunch of internet companies trying to argue that we can ignore Section 230 if you argue that the sites were "negligent" in how they were designed. In a case filed in Texas against Facebook (and others) arguing that three teenagers were recruited by sex traffickers via Facebook and that Facebook is to blame for that, the lower court judge ruled last year that he wouldn't dismiss on Section 230 grounds. I wish I could explain to you his reasoning, but the ruling is basically "well, one side says 230 bars this suit, and the other says it doesn't, and I've concluded it doesn't bar the lawsuit." That's literally about the entire analysis:

In reviewing the statute and the cases cited by the parties, the Court concludes that the Plaintiffs have plead causes of action that would not be barred by the immunity granted under the Act.

Why? I could not tell you. Judge Steven Kirkland provides no real basis.

Either way, Facebook appealed, and the appeals court has upheld the lower court ruling with even less analysis. The only mention of Section 230 is to say that that was Facebook's reason for asking for dismissal. The court takes three paragraphs to describe the history of the case, and this is the entire analysis:

Facebook has not established that it is entitled to mandamus relief. Accordingly, we deny Facebook’s petitions for writ of mandamus.

Why? Who the hell knows. Texas courts are weird, man.

At least one judge on the panel, Justice Tracy Christopher, issued a dissent from the majority opinion. The dissent is also pretty short and sweet, and basically says "um, seems like 230 applies here, so, yeah."

I respectfully dissent from these denials of mandamus and I urge the Texas Supreme Court to review these cases. Federal law grants Facebook immunity from suits such as these. See 47 U.S.C. § 230. Because Facebook has immunity, these suits have no basis in law, and dismissal under Texas Rule of Procedure 91a is proper.

The Real Parties in Interest urge our court to adopt a construction of Section 230 that has been adopted by only a few courts. The vast majority of the courts reviewing this law have adopted the arguments made by Facebook. The artful pleading by the Real Parties in Interest should not prevail over the statute.

Also, just to be clear, since some may ask, and since this is a case about sex trafficking: FOSTA does not apply here because (1) the actions at issue happened prior to FOSTA becoming law, and (2) (as only the dissent notes), FOSTA does not apply to civil actions in state court. Still, what a weird set of rulings, that seem to go against nearly all Section 230 case law... and with basically no analysis as to why at all.

Filed Under: annie mcadams, cda 230, intermediary liability, negligence, product liability, section 230, sex trafficking, texas, vexatious lawsuits
Companies: facebook

Appeals Court Says Parents Can Continue Suing The Three Mesquite Police Officers Who Helped Kill Their Son

from the wheels-of-justice-continue-inching-forward dept

It has been nearly seven years since 18-year-old Graham Dyer died due to injuries he sustained while riding in the back of Mesquite (TX) Police car. Dyer, all of 5'4" and 110 pounds, was picked up by Mesquite officers while experiencing a bad acid trip. Dyer had no idea what was happening to him or where he was. As the officers transported him to jail, he thrashed around in the back of the patrol car, ultimately slamming his head into the seat, window, and metal bars forty-six times.

The officers never bothered to restrain him. But they did stop the car to head into the back seat to tase him, including one prolonged burst (eight seconds) delivered directly to Dyer's testicles. Dyer's parents had no idea what had happened to their son, who was picked up in good health (bad trip notwithstanding) but was dead less than 24 hours later. The Mesquite PD refused to release any records of this arrest to Dyer's parents. The Dyers finally obtained some records, but from the FBI, which had been called in to investigate the in-custody death.

Armed with these records, the Dyers sued the officers and paramedics who handled the arrest and the less-than-adequate care their son received. The paramedics have been dismissed from the lawsuit, but most of the allegations against the officers survive. Two of the three officers involved are still facing the Dyers' lawsuit. And the Fifth Circuit Appeals Court has just thrown the third officer back into the mix, stripping the qualified immunity the lower court awarded him.

The Appeals Court says the lower court made the right call for two of the officers, who are facing deliberate indifference claims for apparently not caring at all the arrestee they were delivering to jail was possibly seriously injured. From the decision [PDF]:

The district court correctly found a genuine dispute concerning whether Gafford and Heidelburg were deliberately indifferent to the serious medical needs of a detainee in their custody. A reasonable trier of fact could find that those Officers were aware that Graham, in the grip of a drug-induced psychosis, struck his head violently against the interior of Heidelburg’s patrol car over 40 times en route to jail and thereby sustained severe head trauma. Both Officers told Graham to stop hitting his head and Heidelburg even pulled his patrol car over in an effort to stop him. Gafford acknowledged that, during his encounter with Graham, he knew “[t]here could be some inherent dangers” associated with head trauma; Heidelburg testified that what Graham was doing “certainly could” cause a head injury. Yet the Officers sought no medical care for Graham when they arrived at the jail. Nor did they alert jail officers (who had no way of knowing what had happened en route to the jail) of the possibility that Graham had seriously injured himself. The record instead reflects that the jail sergeant was “[i]nformed by [the] transport officers [that] Dyer had been medically cleared at the scene.”

As the court noted there, "no officer" informed jail staff about Dyer's possible injuries. That includes Officer Zachary Scott, who was also aware of Dyer's unrestrained thrashing in the back of the patrol car, but similarly chose to say nothing about it.

The district court found the Dyers “failed to present evidence that [Scott was] aware of facts indicating a risk of injury and inferred a risk of injury to Graham.” True, Scott’s affidavit stated he “never observed anything or any action by anyone which might cause a head injury on the part of [Graham],” nor did he “observe[] anything to indicate [Graham] might have any serious injury.” But his deposition testimony was quite different. Scott testified he assumed Heidelburg pulled the patrol car over because Graham “was banging his head.” Scott also testified he tried “to prevent [Graham] from banging his head on the back of the car.” Lastly, Scott stated he did not tell the jail sergeant about Graham slamming his head, nor did he recall hearing anyone else report it.

None of the officers seemingly cared if Dyer lived or died or even got a second look from jail medical staff. Dyer died and now all three officers will face deliberate indifference claims from Dyer's parents.

[I]n this case a reasonable jury could find that (1) Graham violently bashed his head against the interior of Officer Heidelburg’s patrol car over 40 times while en route to jail; (2) Officers Heidelburg, Gafford, and Scott were fully aware of Graham’s actions and of their serious danger; (3) the Officers sought no medical attention for Graham; and (4) upon arriving at jail, the Officers failed to inform jail officials what Graham had done to himself, telling them only that Graham had been “medically cleared” at the scene. From this evidence, a reasonable jury could conclude that the Officers “were either aware or should have been aware, because it was so obvious, of an unjustifiably high risk to [Graham’s] health,” did nothing to seek medical attention, and even misstated the severity of Graham’s condition to those who could have sought help.

Let's hope the jury is reasonable, because everything about these officers' actions isn't. The officers chose to handle a small teen's horrific drug reaction by subjecting him to further horrors, including several tasings. The audio from the in-car camera caught one officer telling the traumatized Dyer, "Motherfucker, I'm going to kill you." And so he did. Maybe not immediately, but that was the end result of these officers' actions -- actions that included choosing not to inform anyone about the multiple head injuries Dyer suffered while in their "care."

Filed Under: 5th circuit, graham dyer, mesquite, police, qualified immunity, texas

Texas Court Says City, PD Must Answer Questions About Botched Drug Raid Led By A Crooked Cop

from the start-talking dept

The Houston Police Department's botched drug raid that resulted in the killing of the home's two occupants continues to cause problems for the PD and the city of Houston. The raid was predicated on a phone call from an unbalanced, vengeful neighbor with a history of calling in bogus crime reports. Probable cause was bolstered (if that's even the word) by dirty cop Gerald Goines, who fabricated a confidential informant and provided evidence for drug trafficking allegations by pulling heroin from the console of his cop car.

The end result was the execution of Dennis Tuttle and Rhogena Nicholas -- a couple who had been together for 21 years and whose house contained nothing more than personal use amounts of marijuana and cocaine. There was no evidence of the heroin dealing alleged by Goines' nonexistent informant.

Goines is now facing murder charges and a handful of other felony charges. The PD's drug task force has been disbanded. And Rhogena Nicholas' mother -- who was at one point falsely named as the person behind the anonymous tip Goines supposedly received -- is suing the city for its failure to properly oversee the police department. (via Courthouse News)

The city has so far refused to cooperate with the lawsuit. Nicholas wants to depose city officials about the raid but the city has chosen to continue its stonewalling and obfuscation. The city (and the PD) have done everything they can to avoid giving Nicholas anything to work with, starting immediately after it became clear the raid wasn't justified and had been led by an incredibly dirty cop. Here's the Texas appeals court's description [PDF] of the city's post-raid recalcitrance:

After the Harding Street Incident, the City did not contact Petitioners and did not respond to Petitioners’ request to publicly correct or retract what Petitioners contended were factually incorrect statements. For example, Rhogena’s neighbor provided a cell phone video that suggested a different account of what happened at the Harding Street home than that set forth by the City. The City has resisted efforts by Petitioners to secure the 911 records related to the Harding Street Incident. Moreover, HPD has refused to disclose what physical materials may have been removed from the scene.

Weird. I always thought this was something guilty people did -- you know, "nothing to hide, nothing to fear," etc. I understand there's no reason to hand plaintiffs ammo to use against you, but the city was unwilling to do anything to correct the record even before it was sued.

The order also points to the independent forensic examination of the crime scene which made it clear Houston PD investigators were either horrifyingly inept or trying to cover something up.

Petitioners retained an independent forensic investigator to conduct an independent investigation at the Harding Street home. After analyzing the scene, the investigator concluded that HPD failed to conduct a full ballistic recovery and left significant forensic materials untouched and unrecovered, preventing a full reconstruction of the incident.

The plaintiffs also pointed out a legitimate investigation includes confidential informants that actually exist and controlled drug buys that actually occurred. None of that happened here and Nicholas alleges the city and PD officials continued to refer to the residence as a "drug house" even when it presumably had been made aware of Goines' fakery.

And there was oh so much lying by Gerald Goines.

Petitioners further plead that local news media revealed that in the last 109 cases filed by Gerald Goines based on a sworn affidavit in support of a search warrant: “In every one of those cases in which he claimed confidential informants observed guns inside, no weapons were ever recovered, according to evidence logs Goines filed with the court.” On this basis, Petitioners request the depositions of the two HPD managers responsible for oversight of Gerald Goines in the HPD Narcotics Division.

The city and the PD argued the court had no jurisdiction to tell it to comply with these pre-trial discovery requests. The appeals court says the government is wrong.

[T]he statutory probate court has subject matter jurisdiction over the anticipated action under the Estates Code. Hence, the trial court did not err in denying the City’s plea to the jurisdiction regarding the Rule 202 proceeding. [...] The City’s issue is overruled.

The city and PD will have to face questions from the relatives of people officers killed during a completely unjustified drug raid. Good. They have a lot to answer for. And the more they talk, the more obvious it will be no one in power really cares how the Drug War is carried out, just as long as it never stops.

Filed Under: dennis tuttle, drug raid, gerald goines, houston, houston pd, rhogena nicholas, texas

Texas Court Says State's Constitution Protects Cell Site Location Info

from the guess-Texas-won't-be-seceding-from-Fourth-Amendment dept

The Texas Criminal Court of Appeals has looked at the Supreme Court's Carpenter decision and decided it applies to cell site location info, even when that information was obtained by law enforcement years before the Supreme Court came to this conclusion. (via Courthouse News)

The location records obtained from AT&T without a warrant destroyed the accused murderer's alibi. From the decision [PDF]:

Christopher James Holder, Appellant, was charged with capital murder. During the course of the investigation, police accessed 23 days of his CSLI to corroborate his alibi that he was out of town when the victim was killed. But Appellant lied. The records showed that he was near the victim’s house at the time of the murder.

Holder filed motions to suppress the CSLI, arguing the records were obtained without reaching the required "specific and articulable" suspicion standard set by the Stored Communications Act. He also argued it violated the Texas Constitution's version of the Fourth Amendment, which reads:

The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.

Here's where the investigator went wrong. There's a defining line between "reasonable suspicion" and "probable cause." The officer who approached AT&T apparently felt the terms were interchangeable and he could use whichever of those to obtain CSLI records.

The morning of November 12, police obtained a court order directing AT&T Wireless (AT&T) to disclose call log and CSLI records showing the location of Appellant’s cell phone between October 20 and November 12, but an AT&T representative declined to produce them because, according to them, the court order had to be based on probable cause. After changing the phrase “reasonable suspicion” to “probable cause,” the petitioning officer took the new order to a judge, who signed it. According to the officer, “[i]t was simpler for [him] to just change the wording[,] have it re-signed[,] and bother the judge one more time . . . .”

The footnote attached to this paragraph notes the State admitted during oral arguments the request did not have "sufficient facts to establish probable cause." Cutting corners isn't acceptable when rights are on the line, no matter how heinous the crime.

The court says suppression is not the appropriate remedy for "non-Constitutional" violations of the Stored Communications Act. But it is likely the appropriate remedy when the Texas Constitution and the Supreme Court's Carpenter decision are taken into consideration. The court undoes its own precedent to align the Texas Constitution with the US Constitution.

The question we must answer now is whether the Supreme Court’s analysis in Carpenter is persuasive, or whether we should take the position that Texas citizens have less privacy rights under the Texas Constitution than the United States Constitution based on a Supreme Court doctrine that even it has declined to apply to CSLI. We think that it makes more sense to adopt the Supreme Court’s reasoning in Carpenter and to no longer apply the third-party doctrine to CSLI records under Article I, Section 9.

Just because this court hasn't examined a case directly on point with the Carpenter decision doesn't mean Texans should have fewer rights just because they live in Texas.

The Supreme Court exhaustively analyzed the privacy issues implicated by CSLI, which we did not do in our original Hankston opinion, and we share the Court’s grave concerns about the Government’s ability to use a continuous, surreptitious, precise, and permeating form of surveillance to continually track its citizens’ every move retrospectively for up to five years. The same privacy concerns are implicated regardless of whether CSLI is accessed under the Fourth Amendment or Article I, Section 9. Further, we have reviewed the constitutional debates in Texas, which we did not previously do, and they show no intention on the part of our framers for Texas citizens to have less protection from unreasonable searches and seizure under the Texas Constitution than the United States Constitution.

Under the Texas Constitution, the search was unreasonable.

Generally, an Article I, Section 9 search is unreasonable absent probable cause, exigent circumstances, or some other recognized law-enforcement need. Here, because the State was acting in its traditional crime-fighting role, and it did not allege exigent circumstances or some other recognized law-enforcement need, the search had to be supported by probable cause to be reasonable. However, the State concedes that the petition does not support a probable cause finding. We agree.

This doesn't automatically lead to suppression of the CSLI records. But it does overturn two previous decisions by the lower courts. It heads back to the county's court of appeals for the judge to decide whether the illegally-obtained records gave the prosecution an unearned edge. Whatever the court decides, the rule is in place: the third-party doctrine does not apply to historical CSLI. Get a warrant.

Filed Under: 4th amendment, carpenter, cell site location info, christopher holder, csli, texas
Companies: at&t

Cop Peforming A Welfare Check Kills Woman By Shooting Her Through Her Own Backyard Window

from the it-does-not-get-any-more-wtf-than-this dept

I'm really not sure what to tell anyone at this point. None of this works.

The Talk is akin to a rite of passage for many African-American children, especially boys and young men. Essentially, they are taught how to behave in the presence of police to mitigate potential harm: no sudden movements, don’t question why you’re being stopped, comply with all verbal commands, never raise your voice.

Make it home alive.

Complying with orders doesn't work. Being calm doesn't work. What if the only option left is staying inside? Well, that doesn't work either.

Firing through a window, a white Fort Worth officer fatally shot a black woman inside her home early Saturday after police were called to the house because its doors were open, according to police and the neighbor who summoned them.

Atatiana Jefferson, 28, died in a bedroom, according to the Tarrant County Medical Examiner’s Office.

I guess we have to give the Fort Worth (TX) police department some credit. The body camera footage of the shooting was released quickly. It doesn't cover everything -- like the search of the house following the killing of Atatiana Jefferson. Nor has the PD released the name of the officer who pulled the trigger.

What the footage shows is chilling.

A call to a non-emergency line from a neighbor set this in motion. The neighbor was concerned because lights were on and doors were open at 2 a.m., which the neighbor apparently felt was unusual.

There was nothing to be concerned about. Jefferson was simply up late playing video games with her 8-year-old nephew. But the cops rolled in like something ultra-suspicious was happening. And they behaved pretty suspiciously themselves.

Rather than approach the front screen door -- which was closed (the inside door was open) -- they took a quick peek through the door before quietly moving past the garage and into the backyard. At no point did the officers identify themselves or attempt to make their presence known.

The only thing any officer said was "Put your hands up! Show me your hands!" This was delivered by the officer who spotted Jefferson through her window as she (most likely) began moving in their direction to figure out who was in her backyard. The shot that killed Jefferson was fired before the second shouted sentence was complete. Jefferson was given no time to comply with the officer's commands. She never even made it outside of her house. Instead, she was killed by a bullet fired by a cop who didn't identify himself -- a bullet fired from outside her house through her back window.

Any credit given the Fort Worth PD can be rescinded. The release of the camera footage promised transparency. The statements accompanying this release are nothing more than the department's attempts to exonerate itself.

Perceiving a threat, the officer drew his duty weapon and fired one shot striking the person inside the residence…

A person, legally in their own home, approached by strangers in her backyard who never tried to make contact with her or identify themselves as police officers: this is the person the officer "perceived" as a "threat." How the fuck can anyone survive this mentality? The police were the intruders. They moved like intruders, sneaking around the house and into the backyard instead of approaching the front door or making any attempt to contact the residents of the home.

All the officer saw was someone moving around. He shouted and fired almost simultaneously. "Comply!" the officer shouted shot. You can't comply if you're not given a chance. A "perceived threat" might turn out to be something else, if officers would actually give people time to comply with commands (and hand out coherent commands).

The PD continues:

Officers entered the residence locating the individual and a firearm and began providing emergency medical care.

It is legal to own a gun in Texas. The freeze frames provided by the PD show a gun on the floor. The implicit suggestion is Jefferson was carrying it when she was shot. Still perfectly legal if she was. She was in her home. But there's no explicit statement saying Jefferson was carrying a gun when she was shot. And nothing in the body cam footage suggests the officer could have discerned whether Jefferson was carrying a gun in the four seconds it took for him to shout two short sentences and issue one instant death sentence.

The PD helpfully detailed the "threat" the officer perceived and it's every bit as ridiculous and sickening as you think it is:

Police said that the officer, who joined the department in April 2018, saw a person standing inside the house near a window.

Not a person with a gun. Just a person. This act is so normal, no one can prevent being perceived as a threat, if an officer approaches a house expecting to be threatened. What is threatening to officers like this one?

A person standing inside a house near a window.

A person standing inside a house.

A person.

You can't win. You can't even get on the field.

Filed Under: atatiana jefferson, fort worth police department, ft worth, police, texas