Fired Cop's Attorney Argues His Client Is Being Punished Unfairly Because The Public Got To See His Misconduct

from the but-for-self-inflicted-video dept

A little over a month ago, body cam footage of a police officer trying to bully a nurse into breaking the law went viral. Salt Lake City police detective Jeff Payne wrapped up his failed intimidation attempt by arresting nurse Alex Wubbels for following her hospital's policy on blood draws. If there are no exigent circumstances and the person not suspected of criminal activity, police need a warrant to draw blood.

None of those factors were present when Detective Payne demanded the hospital draw blood from an accident victim. The victim was, in fact, a reserve police officer from an Idaho law enforcement agency, who had been hit head-on by a fleeing suspect. This officer later died from his injuries. He was in a coma when Detective Payne began demanding the hospital hand over some blood, obviously in no condition to consent to the search.

The entire bodycam video of the incident can be seen below.

Payne argued, after being fired for violating department blood draw policies (and for violating a Supreme Court decision, but Payne isn't expected to know the laws directly affecting his position on the PD's blood draw team), he arrested Wubbels because he "didn't want to create a scene" in the emergency room. If he hadn't arrested her, or demanded she violate both the law and hospital policy, there would have been no scene to be concerned about.

Instead, Payne thought he could intimidate his way through this. Now he's out of a job and attempting to sue his way back in. (Side note: Payne also lost his moonlighting gig as a paramedic as the body cam footage also caught him saying he would start routing "good patients" to another hospital and bring Wubbels' ER "transients.")

His lawyer is making a hell of an argument: Payne was unfairly fired because the public saw him violating department policies.

Attorney Greg Skordas, who represents Payne, said his client plans to appeal a firing he considers unfair and over the top. Skordas said Payne would still be employed if the body camera footage hadn't generated so much attention and blown the events out of proportion.

There are (at least) two ridiculous implications contained in this statement.

First is the implication that the only "proper "investigation is one that clears the officer of wrongdoing and/or results in the most minimal of discipline. The second follows the first: Skordas is basically affirming law enforcement agencies rarely hand out proportionate discipline unless forced to by public outcry. Neither are good looks for Skordas, his client, or his former employer.

The internal investigation reached the same conclusions anyone would have after viewing the body camera footage: both Payne and his supervisor, Lt. James Tracy, acted in bad faith during the incident, using both intimidation and a profound -- perhaps even deliberate -- misconstruing of applicable laws in hopes of taking blood from an accident victim (and fellow police officer).

Beneath Skordas' argument is another ugly assertion: his client feels he's being unfairly treated because a police camera captured him behaving exactly the way he behaved when he arrested a nurse for following hospital policy and a Supreme Court decision. Detective Payne deprived someone of their liberty -- albeit briefly -- for daring to stand up for the rights of her patient. That's about as ugly as it gets.

Filed Under: alex wubbels, blood draws, jeff payne, salt lake city, wrongful termination

Court Allows San Diego Comic-Con's Suit Against The Salt Lake City Comic Con To Move Forward

from the groan dept

A few months ago, we alerted our readers that a trademark dispute between the San Diego Comic-Con and a company producing a Salt Lake City Comic Con, originally filed in 2014, was still going on. In fact, the district court hearing the case just recently ruled on several motions from both parties, including motions for judicial notice (essentially having the court affirm basic facts about the case), motions to exclude expert testimony, and motions for summary judgement. On the face of it, the news is mostly bad for the Salt Lake City convention, with nearly every ruling coming down against it. However, digging into the ruling itself, there is a light at the end of the tunnel.

As for the bad news, it seems to be mostly of the Salt Lake City Comic Con's own making, or the making of its legal team. The court points out that the defendant's lawyers motion and defenses are all over the place, in some places arguing for generecide -- or that "comic con" has become a generic term -- while in others arguing that "comic con" is generic ab initio -- or that the term was generic even prior to San Diego Comic-Con's initial use of it. It's an important distinction for a couple of reasons, including that the defenses SLC has stated it will make revolve around genericide, yet much of the evidence in the motions in this ruling revolve around generic ab initio and, more importantly, the 9th Circuit doesn't have any precedent or acknowledgement of generic ad initio as a matter of law, and this district court is governed by 9th Circuit precedent.

Unfortunately for Defendants, the Ninth Circuit has not recognized a genericness ab initio theory of defense. Instead, the Ninth Circuit very clearly states that there are only five categories of trademarks: (1) generic; (2) descriptive; (3) suggestive; (4) arbitrary; and (5) fanciful. KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 408 F.3d 596, 602 (9th Cir. 2005). No case law from this circuit separates genericness into two different types nor have Defendants provided the Court with Ninth Circuit precedent that adopts their arguments. Accordingly, as there is no dispositive basis or Ninth Circuit jurisprudence to accept an argument revolving around a generic ab initio defense, the Court GRANTS Plaintiff’s motion for summary judgment on this contention.

So, yeah, not a real good look on the part of the SLC's legal team. Later in the ruling, the court goes on to rule against SLC's motion for summary judgement, which was essentially asking the court to rule that "comic con" is now a generic term. The court declined to do so, moving the case forward. But it's important to note that the court, in a ruling that otherwise dealt somewhat harshly with SLC's lawyers, makes a point of noting that it did not deny the motion because Salt Lake City doesn't have the facts on its side. Instead, the court notes that in motions like this, favorable weight is generally given both to the plaintiff and to any holder of a valid trademark (the plaintiff again, in this case), and that's what precludes the court from granting a summary judgement. The ruling goes on to state:

After a careful review of the parties’ moving papers, the applicable law, and the evidence on the record, the Court finds that Defendants have satisfied their burden of demonstrating a genuine issue of material fact as to genericide. “Federal courts [] view usage of [a] term by competitors in the industry as strong evidence of how the public perceives them.” Classic Foods Int’l Corp. v. Kettle Foods, Inc., 468 F. Supp. 2d 1181, 1190 (C.D. Cal. 2007). “The more members of the public see a term used by competitors in the field, the less likely they will be to identify the term with one particular producer.” Id. Here, Defendants produce evidence that demonstrates that “comic cons” are held in nearly every state of the United States including New York Comic Con, Amazing Arizona Comic Con, Emerald City Comic Con, and Tampa Bay Comic Con. (Doc. No. 223-1 at 39, 101, 129, 160.) This evidence of over 100 competitors using the unhyphenated form of Plaintiff’s trademark strongly suggests that the mark is generic. Consequently, this is persuasive evidence of genericide. See CG Roxane LLC v. Fiji Water Co. LLC, 569 F. Supp. 2d 1019, 1027 (N.D. Cal. 2008) (holding that a competitors use of a mark is compelling evidence of genericness as it reflects how the public identifies the term).

Due to that, the court denied San Diego Comic-Con's motion to deny SLC that defense. So, when the trial moves forward now, it should be clear exactly what the defense by Salt Lake City will be: generecide. Given this ruling's opinion of the facts on that question, it appears that defense will be quite strong.

It's something of a canary in the coal mine for the SDCC, in other words. I somewhat expect we'll now hear more talks of a settlement before this goes much further.

Filed Under: comic con, comiccon, dan farr, salt lake city, san diego, trademark
Companies: salt lake comic con, san diego comic con

Apartment Building Attempts To Coerce Tenants Into Crazy Social Media Policy Post-Lease

from the with-facebook-friends-like-these dept

We've done enough posts on apartment complex owners and property management companies to know that too many of them think that they can wage some kind of insane war on negative reviews that might be posted on social media and websites. To combat this, rather than simply addressing the concerns of their tenants, these misguided companies instead attempt to put social media and review policies as riders on the leases they offer. When that fails, some will either sue the critical parties, or will write in five-figure fines for posting anything that could possibly be deemed as critical.

But to see a really brazen attempt to shut up tenants, we can thank Dave Blevins for pointing us to the story of how one apartment owner tried to unilaterally force residents not only to keep quiet with any of their critiques online, but required them to "like" the apartment company on Facebook.

As KSL-TV reports, residents of an apartment building in Salt Lake City, Utah, say they found a curious piece of paper stuck to their doors. Headlined "Facebook Addendum," it had fascinating stipulations.

It insisted that tenants had five days to "friend" the City Park Apartments on Facebook or they'd be in breach of their lease. The fact that they'd already signed their lease perhaps months previously didn't seem to matter to the owners. Oh, and then there was the part about releasing the building owners to post pictures of the tenants or their visitors to, yes, the building's Facebook page.

You will also be traumatized into delirium when I tell you that another stipulation was that the tenants don't post anything negative on social media. This seems a strangely unbalanced "friendship."

So, not only a prohibition on negative reviews on social media, but also a requirement to give an endorsement of sorts instead. And all long after the lease was signed? Oh, this was just destined to go well for all involved.

Actually, the apartment building's Facebook page has a barely-there review score, with many folks dropping in to post negative reviews simply due to the draconian "policy" foisted upon its residents. I'd link to that particular Facebook page but, strangely, it has suddenly become unavailable for unknown reasons. As a result of all the backlash, the apartment building's law firm has helpfully fallen on the sword, indicating that it apparently didn't bother to review the notice it sent to tenants.

Perhaps the owners thought this was reasonable, modern behavior. A spokesman for the law offices of Kirk A. Cullimore, which represents the building owners, offered me this explanation:

As part of opening its pool and an anticipated pool party, City Park desired to provide some protection to its residents and its owners from usage of photos on its Facebook page from all community events, including the opening pool party. The "Facebook" addendum was provided to them to assist in that protection. That addendum went beyond the request and intent of City Park Apartments, and was not carefully reviewed to ensure that it met with their needs and requests. At no time was any resident in jeopardy of eviction or action from City Park for failure to sign the addendum or "friend" City Park Apartments. City Park has not implemented the addendum nor is it requiring its residents to execute it.

One wonders exactly how many billable hours were assigned for the task of creating an addendum outside of the lease agreement for tenants that the apartment complex apparently didn't want, which involved required Facebook likes and prohibited negative reviews, all in order to protect tenants from the horrors of the internet creeping into a simple pool party. Sounds like exactly the kind of thing that would either spur the choice to go with another legal team, or thank them for taking the heat via a heaping help of shielding bullshit.

Regardless, it would probably be best for the apartment to focus on making tenants happy rather than worrying about their social media reviews.

Filed Under: landlord, likes, non disparagement, real estate, salt lake city, social media
Companies: city park apartments, facebook

NSA & FBI Spied On All Emails In Salt Lake City Before & After The Olympics

from the minimization? dept

We've already written about the latest NSA bombshell, which came via an article in the Wall Street Journal (which they stupidly put behind their paywall) by reporters Siobhan Gorman and Jennifer Valentino-Devries. But I wanted to focus in on one aspect that hasn't received very much attention -- the revelation that the NSA and the FBI teamed up to read every email and text communication in the Salt Lake City area before and after the Olympics there in 2002:

For the 2002 Winter Olympics in Salt Lake City, officials say, the Federal Bureau of Investigation and NSA arranged with Qwest Communications International Inc. to use intercept equipment for a period of less than six months around the time of the event. It monitored the content of all email and text communications in the Salt Lake City area.

At the time, Michael Hayden was in charge of the NSA, and today he remains one of the staunchest supporters of the NSA's surveillance, calling its opponents losers who can't get laid for daring to question the level of unconstitutional surveillance of our communications. Perhaps -- just perhaps -- he'd like to explain the legal rationale for spying on every digital communication. Sure, sure, this happened soon after September 11th, and I'm sure US officials were worried about the possibility of a terrorist attack on the winter Olympics. But, I don't recall us turning off the Constitution or ripping out the 4th Amendment just for the Olympics. Perhaps General Hayden, rather than random name calling, could share with us how such a project was possibly anywhere in the vicinity of legal at the time?

Filed Under: email, fbi, michael hayden, nsa, nsa surveillance, olympics, privacy, salt lake city, utah

Salt Lake City Police Dept. Makes The Move To 'Always-On' Eyecams

from the an-idea-with-potential,-tempered-by-an-enormous-downside dept

In the beginning, there were dashcams. Cops utilized these to provide Fox's primetime programmers with glorious footage of high speed pursuits and the occasional drunk shirtless man falling down. It provided a record of traffic stops and PIT maneuvers, but the downside was that it failed to capture anything out of range of the windshield. Sometimes, given inter-departmental meddling, the footage showed nothing at all or ceased to exist.

Then, suddenly, everyone had a camera. Nearly every citizen with a cell phone was able to shoot credible (if shaky) footage of law enforcement events as they unfolded, rather than how they were "recalled" during depositions and courtroom appearances. This turn of events caused some consternation among some members of the law enforcement community, who felt that recorded observation was a one-way street and that street had the PD's name all over it. While it was tougher to make unwanted footage cease to exist, it was not altogether impossible.

Now, the next wave of law enforcement-related camera technology is being put into use: always-on "eyecam." Salt Lake City is rolling out a new line of eye accessories for its force, becoming the first police department in the state to do so.

The Taser AXON Flex on-officer system is a small, light-weight camera with 14 hours of a battery life that an officer clips to an item like a headband or sunglasses so it can record whatever that officer is seeing or doing.

Nationally, only about 2,000 units of the on-officer system are in the field, and Salt Lake City would be the first department in Utah to use the technology, said Rick Smith, Taser founder and CEO, who attended the presentation.

As the use of these cameras becomes more widespread, hearing a police officer offer to "fire up the Taser" may no longer cause certain citizens to instinctively curl into the fetal position. In fact, there's an (admittedly small) chance that these new cameras will keep unnecessary force to a minimum and provide useful documentation for use in investigations, court cases, etc.

"It really improves our ability to be professional and document events as they occur," (Police Chief Chris) Burbank said. "Imagine being able to capture the emotion."

Smith said any use of force is inherently high risk and controversial.

He said there are often differing accounts of what led an officer to use force in a particular situation and equipping them with cameras will help with investigations and retroactive reviews of decisions that were made, he said.

"It holds everybody accountable," Smith said.

More transparency is a good idea, but much like any recording device, it's only as trustworthy as its operator -- and those who control use of the footage. Burbank mentions that the camera has already cleared a Salt Lake City officer accused of "behaving unprofessionally" at a traffic stop. This is all well and good, but there needs to be a serious effort made to curb the tendency to turn an "always-on" camera into a very selective accomplice.

The cameras run continuously, but an officer is responsible for activating and deactivating the device. That means the department will have to set strict guidelines about camera use and making sure the cameras aren't being shut off, Burbank acknowledged.

The first step might be to change "guidelines" to "rules," so there are no grey areas surrounding the specifics of camera usage. This is not to say there's little potential for an upside, though. In fact, more law enforcement agencies should look into equipping themselves with something like this, with the caveat being that the resulting footage is treated as an "impartial record" rather than "police property." Leaving the on/off switch in control of the officer wearing the camera is both unavoidable and prone to abuse by those who would rather hide certain actions and activities. And as long as law enforcement members are interacting with the public using "always-on" cameras, there really can't be any further complaints about citizens responding in kind. The camera may be an impartial observer, but the operator very rarely is. If transparency is Burbank's ultimate aim, let's hope the guideline process is opened up for public comment.

Filed Under: cameras, police, salt lake city, surveillance