Category Archives: James P. Goslee

Pennsylvania Superior Court’s Befuddling Decision in Wilson v. U.S. Security Associates Turns the Stautute of Limitations on Its Head

Earlier this month, the Pennsylvania Superior Court vacated a Philadelphia jury’s $38.5 million punitive damages verdict after concluding that the plaintiff’s claim for punitive damages was brought after the applicable statute of limitations.  The Superior Court’s decision holding that a claim for punitive damages is a cause of action that must be pled prior to the expiration of the statute of limitations caught many practitioners by surprise, and for good reason.  The ruling is at odds with long-standing precedent.  It is also confusing, fundamental wrong and completely unworkable as a matter of practice.  The good news is that the Wilson decision is likely to be short-lived, as it will almost certainly be reversed by the Pennsylvania Supreme Court. But until then, Pennsylvania law regarding what constitutes a cause of action susceptible to the statute of limitations has fundamentally changed and plaintiffs lawyers everywhere ought to be cautious.

The Wilson case arouse out of a shooting at the Kraft Food factory in Philadelphia a few years back.  The plaintiff brought claims of negligence against multiple defendants, including a third-party commercial security company. The plaintiff alleged, among other things, that the company negligently allowed a disgruntled former employee to enter the factory and begin shooting.  At the inception of the case, plaintiff’s original counsel included a request for punitive damages in the Complaint.  As is typical, the defendant filed a preliminary objection seeking to strike the punitive damages claim.  Often times when this happens, the parties will either agree to remove a claim for punitive damages from the Complaint without prejudice, or the Court will strike the claim without prejudice.  In either case, the idea is that discovery should be taken before a defendant is subject to a potential verdict for punitive damages.

In Wilson, the plaintiff’s counsel agreed to remove the claim for punitive damages from the Complaint by way of stipulation.  Counsel for both parties filed a stipulation to dismiss the claim for punitive damages, without prejudice.  Consistent with the custom in Pennsylvania, both parties contemplated that the plaintiff would have the right to again request punitive damages after discovery, if the evidence warranted such a remedy. However in this case, the plaintiff did not include in the stipulation a provision barring the defendant from raising the statute of limitations as a defense if the pleading was subsequently amended to bring back the punitive claim.

Now, it was certainly an oversight for plaintiff’s counsel not to include this language regarding the statute of limitations.  But it really shouldn’t have mattered, because as everyone knows, a claim for punitive damages is not a cause of action.  It is not even a theory of liability (read more about the myth of “theories of liability” here https://jamesgoslee.com/2017/05/11/amending-a-civil-complaint-in-pennsylvania-after-the-statute-of-limitations-beware-of-the-new-theory-of-liability-myth/).  It is simply an element of damages.  And because it is not a cause of action, it can be added to a civil Complaint any time, regardless of the statute of limitations, right?

Unaccountably, and in defiance of all prior precedent, a panel of Superior Court judges ruled that a claim for punitive damages is in fact a cause of action and must be pled within the two-year statute of limitations.  Notwithstanding the chaos this decision will now cause practitioners (plaintiffs must now plead punitive damages in all negligence cases, regardless of the facts, just to be safe and to avoid a future claim of malpractice), the decision cannot be squared with long-standing precedent or common experience.  With respect to precedent, Pennsylvania is and always has been a notice pleading state.  Plaintiffs do not need to include every potential theory of negligence in a Complaint, nor do they need to specifically enumerated all elements of damages. Rather, it has always been the law that a plaintiff need only plead sufficient facts to allow a defendant to prepare a defense against a cause of action.   No court in Pennsylvania has ever held that a request for punitive damages is a stand alone cause of action.  And this makes sense, because there is no independent cause of action for punitive damages.  Punitive damages are simply a component of damages permitted in those rare cases where a defendant’s conduct is outrageous.

Given that the panel’s decision in Wilson represents a sea change that will fundamentally alter the practice of law for civil litigants in Pennsylvania (because if punitive damages are a “cause of action,” you better plead everything under the sun in a Complaint!), you would think that the court would have spent considerable time explaining its decision. You would also think it would have engage in a deep legal (and perhaps philosophical) analysis. But you would be wrong.  After boiler plate citation to decisions that in no way support the panel’s holding, here is the entirety of the Superior Court’s analysis:

On independent review, we are constrained to conclude that the trial court’s decision to permit the addition of a claim for punitive damages in the middle of the first trial was legally incorrect. Quite plainly, and without factual dispute, the statute of limitations had expired.

“Quite plainly.”  The Superior Court thought the issue so obvious it dismissed it in two words: “quite plainly.”  The Superior Court threw out a $35 million verdict, and created a new and unworkable legal paradigm on the strength of two words.

With all respect to the Superior Court, which gets it right most of the time, it really missed the mark on this one.  It is clear from the lack of analysis that the Court did not consider the implications of its decision.  If an element of damages is now considered a “cause of action,” the legal definition and common understanding of “cause of action” has (without any principled explanation) expanded beyond reason and beyond measure. The upshot, unfortunately, is that plaintiffs’ counsel will now be forced to include a claim for punitive managers in every Complaint.  More than that though, the Complaint should now be a compendium of every single fact and theory of liability known or conceivable to counsel.  Because if nothing else, the Superior Court is now signaling that our state’s well established pleading conventions have been turned upside down.

James Goslee is a trial attorney in Philadelphia and can be reached at https://jamiegoslee.com/about/

Where to File a Lawsuit? Proper Venue in Pennsylvania

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Where to File a Lawsuit in Pennsylvania

Where to file a lawsuit?  It is one of the first questions a trial attorney asks when representing a new client.  And it is one of the most important questions.  The county in which a lawsuit is brought can have a major impact on both the value of the claim and how quickly it can be resolved. For instance, some counties are known for higher verdicts, which can drive up the settlement value of a claim.  Also, civil litigation moves at a different pace depending on which county you find yourself in.  Some counties, like Philadelphia, move cases quickly and a plaintiff usually gets a trial date within 1 or 2 years of filing suit.  But, in other counties, it can be 4 or 5 years before there is a trial date and thus take half a decade (or longer) before a claim can be resolved.  Because the venue of litigation is so important and directly impacts the value of a claim and how quickly it can be resolved, it is important for trial lawyers to identify the best viable venue before filing a Complaint.

Naturally, corporate defendants have the opposite incentive as plaintiffs.  If possible, corporate defendants want to make sure a lawsuit is filed in a jurisdiction known for small jury verdicts and a slow docket.  Because venue is so important, the Pennsylvania Rules of Civil Procedure set out specific rules controlling where a corporate defendant can be sued.  Under Rule 2179, a corporation can be sued:

  • in any county where its principal place of business is located;
  • in any “county where it regularly conducts business”; or
  • in the county where the accident occurred.

In cases where a plaintiff files suit in the defendant’s home county, or where the accident or incident giving rise to the claim took place, there is nothing really to fight over.  In these cases, venue is proper and the corporate defendant cannot object.  The area of contention is when a plaintiff files a claim in a county where the incident didn’t happen and where the defendant does not have a principal place of business, but where the plaintiff alleges that the defendant “regularly conducts business.”

“Regularly Conducting Business”

What does it mean to “regularly conduct business” in a county?  Over the years courts in Pennsylvania have issued rulings clarifying what that means and increasing the burden on a plaintiff to prove that a defendant “regularly conducts business” in the chosen jurisdiction. To this end, the Pennsylvania Superior Court has adopted a two prong “Quality and Quantity” test.  In determining whether a corporate defendant “regularly conducts business” in a specific county, courts must consider both the quantity or business conducted in the county, and the quality of the defendants contacts with the forum.  The Superior Court explained this test in Zampana-Barry v. Donaghue:

In determining whether a corporation or partnership regularly conducts business in a county, we employ a quality-quantity analysis. A business entity must perform acts in a county of sufficient quality and quantity before venue in that county will be established. Quality of acts will be found if an entity performs acts in a county that directly further or are essential to the entity’s business objective; incidental acts in the county are not sufficient to meet the quality aspect of the test. Acts that aid a main purpose are collateral and incidental while those necessary to an entity’s existence are direct.

An issue that has arisen over the years involves cases where a defendant “solicits” business in a specific county, but does not actually conduct business “directly” in that county. This sort of “indirect” contact often becomes an issue where a car manufacturer is a defendant.  Car manufacturers, with limited exceptions, do not sell automobiles directly to customers.  Rather, they sell cars to consumers through independent automobile dealerships. And although these manufactures extensively advertise and get the economic benefit of sales to customers in various counties, they have successfully managed to get cases removed from the plaintiff’s chosen forum because they do not have “direct” contact with that county. To this end, the Pennsylvania Supreme Court has specifically ruled that “mere solicitation” in a particular county does not amount to conducting business. Purcell v, Bryn Mawr Hospital.

Faust v. BMW

Recently, the Superior Court of Pennsylvania had an opportunity to consider proper venue in a case involving a car manufacturer. In Faust v. Bayerische Werke AG and BMW of North America, the plaintiff brought a claim for a faulty airbag against BMW in Philadelphia.  BMW filed a preliminary objection arguing that venue in Philadelphia was not proper because, under existing Pennsylvania law, it does not regularly conduct business in the City. The plaintiff responded with record evidence showing that BMW regularly advertises its cars in Philadelphia and, through independent licensed dealerships, sells and leases a significant amount of cars to Philadelphia citizens.

Despite an obvious argument as to fairness (i.e. BMW makes a lot of money selling and leasing cars to Philadelphia citizens, and intentionally markets in Philadelphia, why can’t they be sued there?), 2 of the 3 judges on the appellate panel upheld the trial court’s ruling transferring the case to Lancaster County.  The majority opinion cited BMW’s primary business purpose as follows:  “to sell or lease vehicles to individual consumers, which is facilitated by a national distribution network of authorized, affiliated, and independently-owned BMW dealership.”  According to the majority, because BMW does not “directly” sell or lease cars to Philadelphia residents, but instead does so through independent dealerships, it cannot be said that it conducts business in Philadelphia.  Further, the majority held that although BMW regularly markets in Philadelphia, that sort of conduct is mere “solicitation” insufficient to allow for proper venue.

Time to Reconsider the Law?

The majority opinion in Faust is not wrong from a legal perspective. The majority followed prior precedent set by the Supreme Court.  But it is unfortunate because it is expanding a legal rule that is unprincipled and at odds with the realities of modern economics.  BMW makes a tremendous amount of money from customers in Philadelphia. Why should it matter if that money comes directly from Philadelphia citizens via direct sales, or passes through a dealership acting as a middle man?  If the company is going to receive the bottom line economic benefit of doing business with Philadelphians, and intentionally market its goods in Philadelphia, why is it unfair to hold the company to account in Philadelphia?

James Goslee is a trial attorney in Philadelphia and can be reached at https://jamiegoslee.com/about/

 

Amending a Civil Complaint in Pennsylvania After the Statute of Limitations? Beware of the “New Theory of Liability” Myth

For trial lawyers, drafting and filing a Civil Action Complaint is an obvious and important step in litigation. The Complaint is the document that literally starts a lawsuit. But it is more than that. Much more. Although it is filed at the very beginning of a case, the Complaint, and specifically the allegations and causes of action set out in the Complaint, is the foundational document that controls the scope of the litigation and the availability of remedies. So you better get it right.

A plaintiff can only purse the specific claims (causes of action) against a defendant that are “pled” (i.e “alleged”) in the Complaint. If you don’t plead a cause of action, you cannot pursue it and you cannot recover for it. So needless to say, it is important to understand what causes of action you have before filing a Complaint.

Unfortunately, what constitutes a “cause of action” is not always clear and a number of sloppy Superior Court opinions in recent years have made it even more challenging.

“Causes of Action”

But lets start with the basics. What is a cause of action and why does it matter? Say, for example, you undergo surgery and things go badly. Sadly, you are permanently injured. Assume also that you believe your surgeon did two things wrong that caused your injury. First, he made a mistake during surgery and that mistake contributed to your injury. Second, the surgery he performed was different from the surgery you agreed on. In this scenario, you have at least two different causes of action. One cause of action is medical negligence (the doctor made a mistake). The second cause of action is one for lack of informed consent (the doctor did not have permission to perform the surgery). In this scenario, you need to include both causes of action in your Complaint. If you forget to plead one of the causes of action and the statute of limitations expires, you are out of luck.

“The Myth”

But in recent years, lawyers and courts have blurred the line between a cause of action (which needs to be pled), and a theory of liability, which does not. What do I mean? Well lets go back to our previous example. Say you file a Complaint after your surgery alleging both medical negligence and lack of informed consent. Assume further that your claim for medical negligence is that the doctor accidentally cut a specific nerve in your knee during surgery leaving you with limited function in your leg. When you file your Complaint you include an allegation that the doctor accidentally cut nerve A. Turns out though, that the doctor did not accidentally cut nerve A. He used the wrong medical equipment which led to your nerve injury. In either case nerve A is injured and you still can’t use your leg. If you wanted to amend your Complaint after the statute of limitations, under Pennsylvania law you absolutely should be permitted to do so. Why? Because you are not alleging a new cause of action (your claim is still that the surgeon committed medical negligence that caused nerve damage), you are only revising your theory of liability (wrong equipment instead of accidentally cutting a nerve).

Over the years, both trial courts and even the Superior Court have begun to blur the distinction between a “cause of action” and a “theory of liability.” The result is that courts have disallowed amendments after the statute of limitations, even when those amendments do not change the cause of action, but merely seek to alter or expound upon the theory liability. For instance, the Superior Courts decision in Reynolds v. Thomas Jefferson Hospital flat out ignores the distinction between a cause of action and a theory of liability. That decision is wrong, but still has not been corrected.
The upshot is that it is now common practice for defense attorneys to object to motions to amend a complaint, claiming that a plaintiff should not be permitted to allege a “new theory of liability” after the running of the statute of limitations. This is completely wrong. It is a modern legal myth in desperate need of correction.

So lets work on that correction!

The “Real” Law

The Pennsylvania Supreme Court has long held that the “right to amend should be liberally granted at any stage of the proceeding  unless there is an error of law or resulting prejudice to an adverse party.” Werner v. Zazyczny, 681 A.2d 1331, 1338 (Pa. 1996). The reason for freely allowing amendments is to “secure a determination of the case on the merits whenever possible, and not enforce technical rules of pleading.” In re Francis Edward McGillick Foundation, 594 A.2d 322, 329 (Pa. Super. 1991), aff’d in part, rev’d in part on other grounds, 642 A.2d 467 (Pa. 1994).

Not only should amendments be liberally permitted, but trial courts have broad discretion to allow amendments that include more specific factual pleadings. See, e.g., Pike Cnty. Hotels Corp. v. Keifer, 396 A.2d 677, 681 (Pa. Super. 1978). The Pennsylvania Superior Court has observed that “the lower court has broad discretion in determining the amount of detail that must be averred since the standard of pleading set forth in Rule 1019(a) is incapable of precise detail.” Id. at 681.

Contrary to the defense counsel “new theory of liability” myth, it is blackletter law that a Complaint does not limit plaintiff to a specific theory of liability. Indeed, as explained by the Pennsylvania Supreme Court in Kusis v. Baldwin-Lima-Hamilton Corp., 319 A.2d 914 (Pa. 1974):

The notion that a complaint weds a plaintiff to a particular theory of liability is foreign to Pennsylvania pleading. Ours is a system of fact pleading, not “theory” pleading; a plaintiff is free to proceed on any theory of liability which the facts alleged in his complaint will support. Id. at 918, n.8; see also Zitney v. Appalachian Timber Prods., 72 A.3d 281 (Pa. Super. 2013).

Although a plaintiff may not assert a new “cause of action” after the statute of limitations has run, if an amendment “merely amplifies that which has already been averred, it should be allowed even though the Statute of Limitations has already run.” Connor v. Allegheny General Hospital, 461 A.2d 600, 602 (Pa. 1983). The Pennsylvania Superior Court addressed the issue of a “new cause of action” in Junk v. East End Fire Dep’t, 396 A.2d 1269 (Pa. Super. 1978), explaining:

A new cause of action does not exist if plaintiff’s amendment merely adds to or amplifies the original complaint or if the original complaint states a cause of action showing that the plaintiff has a legal right to recover what is claimed in the subsequent complaint. Id., at 1277.

I cite this case law because it is an accurate reflection of Pennsylvania law governing pleadings. It also obliterates the growing myth that a theory of liability is the same thing as a cause of action.

James Goslee is a trial attorney in Philadelphia and can be reached at https://jamiegoslee.com/about/

 

High Profile Lawsuit Against Attorney General Kathleen Kane Dismissed (For Now)

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Earlier this week a federal district court judge dismissed a high-profile lawsuit against Attorney General Kathleen Kane brought by former employees.  But the legal reasoning of Judge Harvey Bartle in dismissing the claims is probably less interesting than his summary of the allegations, which provide a detailed look at an evolving political grudge match between Pennsylvania’s sitting Attorney General and a high level State prosecutor.

I have written about the ongoing legal/political battle between Attorney General Kathleen Kane and former prosecutor Frank Fina before, see http://wp.me/p6DFYU-2g.   Judge Bartle’s opinion sheds more light on the origin of this controversy and his ruling resolves, at least temporarily, some of the contentious civil claims being made against Attorney General Kane.

The lawsuit in question was brought by Fina and a few other former employees of the Attorney General’s Office.  Fina and the other plaintiffs sued Attorney General Kane claiming she retaliated against them for exercising their right to free speech and defamed them publically.  Judge Bartle summarized the factual allegations underlying Fina’s lawsuit, which more or less go as follows:

In 2012, Kathleen Kane announced her candidacy for Attorney General.  Around the time she announced her candidacy, allegations that Jerry Sandusky had been molesting children dominated the news. As part of her platform, Kane criticized the OAG’s handling of the Sandusky investigation under Tom Corbett’s leadership. Specifically, she claimed the OAG’s office both delayed charging Sandusky and failed to allocate the appropriate resources to the investigation.  As part of her campaign for Attorney General, Kane promised she would “investigate” the OAG’s handling of the Sandusky investigation. 

When Kane assumed office in January 2013, Fina (who handled the prosecution of Sandusky) was overseeing a long-running bribery investigation. As part of the investigation, Fina was utilizing an informant named Tyron Ali.  Ali had signed a cooperation agreement with the OAG’s office and, in exchange for avoiding prosecution, was recorded offering bribes to various Philadelphia officials.   According to Fina’s lawsuit, he immediately informed Kane that she could not oversee the investigation because she had a conflict of interest.  According to Fina, the investigation could potentially implicate Joshua Marrow, a friend and former campaign employee of Kane’s.

Kane disagreed with Fina and immediately suspended the investigation.  She publically claimed that the investigation run by Fina had improperly targeted minorities and, as such, was discriminatory and could not be prosecuted.  For their part, Fina and the other plaintiffs made statements critical of Kane and denying that the investigation was racially motivated or flawed.

Around the same time, Kane began her investigation into the Sandusky prosecution.  A report summarizing the inquiry into the Sandusky investigation was completed in May 2014. The same day the report was released publically, Kane made public statements claiming that Fina and the other plaintiffs improperly delayed the prosecution of Sandusky and, as a consequence, Sandusky had an opportunity to molest two additional minors.   In response, Fina held a press conference where he maintained that Kane’s investigation was a sham and the report was false. 

Fina’s Complaint alleged that in response to his criticisms, Kane launched a retaliatory conspiracy to besmirch his record.  Fina claimed that Kane illegally leaked confidential grand jury records from a 2009 grand jury investigation into the former head of the Philadelphia chapter of the NAACP, J. Whyatt Mondesire.  That grand jury investigation ended without indictment.  Kane believed the grand jury records she leaked proved that it was Fina’s misconduct that resulted in the failed grand jury investigation.  The grand jury materials were turned over to Daily News Reported, Christopher Brennan.  Brennan, in turn, used the material to write a story accusing Fina of impeding and improperly terminating the investigation into Mondesire.   

The problem with leaking confidential grand jury information is that it is illegal. When Fina learned of the leak, he reported it to the Supervising Judge of the grand jury.  Fina was then called as a witness into a grand jury investigation into the leak.  Before he could testify, however, he was confronted by one of Kane’s employees who, allegedly, attempted to physically intimidate him.

Kane was criminally charged with leaking the grand jury information and is awaiting trial.  However, according to Fina’s Complaint, Kane further retaliated against him by kicking off the porn-gate controversy http://wp.me/p6DFYU-2gIn short, according to the Complaint, Kane tipped off reporters that Fina had received pornographic and otherwise inappropriate emails on his work computer. Fina’s Complaint alleged that Kane “selectively” released a portion of emails to emphasize his role in the scandal. 

According to the Complaint, Kane also appeared on CNN and suggested that she had uncovered emails to and from state employees that were pornographic, racist and misogynistic. During the interview she suggested that some of the emails contained child pornography, an allegation her office later retracted.

Fina and his fellow plaintiffs alleged that Kane’s conduct in: (1) criticizing the bribery investigation as racially motivated; (2) leaking grand jury material; (3) releasing allegedly improper emails was done in retaliation for their public criticisms of Kane’s performance. According to Fina and the other plaintiffs, this retaliation was illegal and violated their First Amendment rights.  Fina and the other plaintiffs also brought claims under state law for defamation.

Judge Bartle dismissed all of the Section 1983 (First Amendment) claims because Kane’s alleged retaliatory conduct was not significant enough to give rise to a lawsuit.  For a public official to be held accountable for retaliating against an employee exercising rights protected by the First Amendment, the retaliation must involve a “threat, coercion, or intimidation intimating that punishment, sanction, or adverse regulatory action will be immediately followed.”  In this case, according to Judge Bartle, Kane’s criticisms of Fina did not involve threats of sanction or punishment.  Rather, according to Judge Bartle:

“Fina was not terminated, demoted, disciplined, or subjected to any other adverse employment action as a result of his criticisms of Kane. Instead, he merely bore the effects of a generalized critique of an investigation in which he took part under a former Attorney General.”

Judge Bartle found plaintiffs’ claim that Kane retaliated against them by releasing emails containing inappropriate and pornographic material absurd, holding that “it would defy logic to conclude that Kane violated the constitutional rights of plaintiffs by bringing to light their use of state-owned computers and email systems to exchange pornography.”

Judge Bartle also dismissed the plaintiffs’ claims for defamation, but without prejudice.  Having dismissed all of the federal claims for retaliation, Judge Bartle declined to retain jurisdiction over plaintiffs’ claims for defamation.  Those claims, presumably, will be brought in state court.

Acknowledging the political back story to the lawsuit, Judge Bartle concluded his opinion by noting as follows:

“In essence, the [plaintiffs’ Complaint] details a long-standing political battle between the Attorney General of Pennsylvania and former high-ranking state officials who served in the administration of her adversaries.  The battle has been hard fought and is not pretty.  Each party, however, has exercised his or her rights under the First Amendment, and there has been alleged no illegal retaliation giving rise to a claim under Section 1983.”

James Goslee is a trial attorney in Philadelphia and can be reached at http://jamiegoslee.com/about/

 

Credit: Darastar, Everystockphoto.com

Think the First Amendment Applies in Philadelphia? Only if You Know the “Magic Words”

Grunge Stars And Stripes Free Stock Photography

Free Speech – It’s More Than Just Words

The right to speak freely is the right to live freely.  It is a fundamental aspect of liberty.  Of all the rights protected by the Constitution, freedom of speech is generally regarded as the most powerful guard against oppression.  And for good reason. The right to express thoughts, ideas and concepts without fear of repression or reprisal is quintessential to self-determination and a bedrock principle of democracy.  But it is even more than that.  It is part of our national identity as Americans.  We are free people.  That means, above everything, we can speak freely.

You would think then, that freedom of speech and expression is not a contingent right. You would think that there are no prerequisites or hoops to jump through before we can speak our mind.  It’s not like we have to tell the government we are “opting into” the First Amendment to enjoy its privileges, right?  We don’t need to tell the government we intend to exercise our First Amendment right before we express ourselves, right?  The First Amendment applies automatically, right?????  Well, until last week, you would be correct.  But according to one federal district court judge in Philadelphia, we are all sadly mistaken.

Before discussing Judge Mark Kearney’s remarkable decision last week in Fields v. City of Philadelphia, et. al., it would be helpful to put the First Amendment in context.  The actual text of the First Amendment dealing with speech is pretty short, but its interpretation and application is incredibly broad.  The First Amendment itself states:

“Congress shall make no laws respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

Like I said, the text is pretty short. But over the past 200 plus years, Courts interpreting the First Amendment have applied it very broadly.  Which makes sense, because the First Amendment was not intended to apply only to verbal “speech.”  We don’t just communicate through words after all. For instance, shaking your head side-to-side is just as effective as saying the word “no.”  Likewise, whether words are used or not, artwork and artistic performance are quintessential mediums of expression and enjoy the same First Amendment privilege as actual speech.

The point here is that “freedom of speech” does not just apply to speech, but to actions that can reasonable be considered expressive (e.g., shaking your head, pointing a finger, dancing, even remaining silent).  And there is no itemized list of non-verbal communications that can be considered “speech.”  Judges are often tasked with the job of determining when certain non-verbal conduct constitutes expression for purposes of the First Amendment.

Is Videotaping Police Officers Protected by the First Amendment?

Over the past few years, one novel form of non-verbal conduct that has been considered a protected form of expression is citizens taking photographs or video footage of police officers.  This is considered a “novel” form of speech because it really didn’t become a thing until the recent advent of smart phones with built in cameras.  But today, especially with recent controversies involving allegations of police brutality and misconduct, it has become rather common practice for citizens to video tape and photograph police officers.  This is especially true when citizens, right or wrong, are concerned about the conduct of officers making arrests.

Why is recording police in the field considered protected speech? Because, again, the freedom of speech does not just apply to speech.  In the context of recording police officers, there are two important interests at stake for purposes of the First Amendment.  First, the act of recording police officers in action can be considered “expressive conduct” because it can imply criticism or protest of the police action. Moreover, the art of taking photographs (or shooting film) is inherently artistic and requires artistic judgment (ask any professional photographer).  Even more importantly, recording police officers is considered “news gathering” and historically the right of journalist to record what they believe to be newsworthy footage has been afforded First Amendment protection.  The idea being that photographing and/or recording the actions of government officials promotes discussion of government affairs.

Virtually every court that has considered the issue of recording police officers has concluded that it is protected by the First Amendment.  The list includes federal courts of appeal in the First, Fourth, Ninth and Eleventh Circuits.  The First Circuit addressed this issue way back in 2011 and was pretty firm in deciding that the First Amendment protected citizens filming on-duty police officers. In Glick v. Cunniffe, the First Circuit explained its rational as follows:

It is firmly established that the First Amendment’s [reach] extends further than the text’s proscription on laws “abridging the freedom of speech, or of the press,” and encompasses a range of conduct related to gathering and dissemination of information.  . . . An important corollary to this interest in protecting the stock of public information is that ‘there is an undoubted right to gather news ‘from any source by means within the law. . . . The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities fits comfortably within these principles. Gathering information about government officials in a form that can be readily disseminated to others serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of government affairs.’

Fields v. City of Philadelphia

Now, with this background in place, let’s discuss Judge Kearney’s recent decision in Fields v. City of Philadelphia.  The Fields case is actually two similar (companion) cases involving the same issue – does the First Amendment protect citizens filming on-duty police officers?  Judge Kearney concluded that, based on the factual circumstances of the cases before him, it did not.  It’s not so much Judge Kearny’s conclusion that the First Amendment did not apply to the plaintiffs in Fields (which is inconsistent with virtually every other federal decision on the issue) that is troubling.  Rather, it is how he rationalized his decision.

In 2013, Richard Fields was a student at Temple University in Philadelphia.  Allegedly, he was walking down the street and saw about 20 officers standing outside of a house party.  Fields thought it was an interesting scene – seeing so many officers outside a house party – and thought it would make a good picture.  So he took one.  At that point, one of the officer on the scene approached Fields and allegedly stated “do you like taking pictures of grown men” and insisted Fields “move along.”  For his part, Fields didn’t particularly enjoy photographing grown men, and, quite appropriately, declined the officer’s invitation to “move along.”  It is a free country after all! At which point he was arrested and cited for “Obstructing Highways and Other Public Passages.”  The officer also took Fields’ phone and began looking through the photos, but did not delete them.

Not to be outdone by Fields, in 2012 Amanda Geraci attended a public protest against hydraulic fracking outside the Pennsylvania Convention Center.  At some point during the protest, one of the protesters was being arrested.  Geraci took out her phone and began recording the arrest.  According to Geraci, she was “attacked” by an officer who restrained her and prevented her from recording the arrest.  She was not arrested or cited.

Both Fields and Geraci sued the City of Philadelphia.  Both alleged that the Philadelphia Police violated their civil rights and, specifically, the First Amendment.  Both suits came before Federal District Court Judge Mark Kearney.

At the close of discovery, the City filed Motions for Summary Judgment against both plaintiffs, contending that there is no general First Amendment protection for citizens recording on-duty police officers.  As Judge Kearney saw it, the square issue for him to decide was “whether photographing or filming police . . . without challenging the police is expressive conduct protected by the First Amendment.”

Now, for legal observers this case seemed like a slam dunk for the plaintiffs.  As noted above, the issue had already been decided by a number of appellate courts and everyone seems to agree the First Amendment applies.  But Judge Kearney saw things a bit differently and rejected the plaintiffs’ First Amendment claims.  The decision itself is almost certainly wrong, but that’s not the real issue.  The real issue is the legal reasoning Judge Kearney used to reach his conclusion.  In Judge Kearney’s opinion, the First Amendment only protects citizens recording on-duty officers if they first explain to the officers why they are recording them.

According to Judge Kearney,if you are going to photograph the police you need to tell them why you are taking the photograph. The act of photographing or recording alone is not “expressive conduct.”  More specifically, before the First Amendment protections apply, Judge Kearney would require citizens to explain that they are recording police (1) out of protest or (2) because they are critical of the police officers conduct. In other words, if you live in Philadelphia and are interested in the fundamental protections guaranteed by the First Amendment, you literally need to say so.

In theory, Judge Kearney’s decision is difficult to reconcile with . . . well…the whole concept that the First Amendment is a fundamental, inalienable right.  But the real, practical problem (and one I don’t think the Judge intended) is that the decision in Fields makes the First Amendment contingent; It only applies if a citizen can explain to a police officer why it applies. That cannot be the law.

Why not?  Well, let’s have some fun with this. With the recent passing of Justice Scalia, the Supreme Court lost its lone strict constructionist.  From a strict constructionist’s perspective, nowhere in the First Amendment does it say that the right to free speech is dependent upon a citizen’s ability to explain why the First Amendment should apply.  The Constitution does not put the burden on citizens to invoke guaranteed rights.  If it did, those rights would not be guaranteed, they would be contingent.

Another practical problem with the Fields approach is that it assumes (and really requires) that (1) all citizens know their Constitutional rights and (2) understand that to invoke those rights when filming police officers, they need to utter magic words protesting or criticizing the police (god help anyone unable to speak or with laryngitis!).  With respect to uttering words of protest or criticism towards police, if anything grafting such an arbitrary prerequisite onto the First Amendment would only serve to inflame or increase tensions between on-duty officers and the citizens recording them.  It really doesn’t make much sense.

To be fair, the line between traditional conduct (not protected by the First Amendment) and expressive conduct (protected by the First Amendment) is not always clear.  And whether conduct can be considered “expressive” is often in the eye of the beholder. To Judge Kearney’s credit, he recognized and acknowledged that his opinion in Fields contradicted similar decisions in other Circuits. Judge Kearney was not bound by any precedent in the 3rd Circuit and had the authority and the responsibility to decide the case on the facts before him.

But at the end of the day the Fields decision was wrongly decided.  Constitutional rights are considered “guaranteed” for a reason.  The Fields decision would fundamentally change the centuries of law by putting a new burden on plaintiffs’ to explain why they are entitled to constitutional rights before those rights can be invoked.  Such a burden is, on its face, inconsistent with concepts of liberty and freedom and frankly, unworkable.

It seems inevitable that the Fields decision will be overturned by the 3rd Circuit.  But until then, if you are in Philadelphia and get the urge to take photographs of police officers, best to play it safe and yell “protest” and “I am critical of police” while taking your pictures.

James Goslee is a trial attorney in Philadelphia and can be reached at http://jamiegoslee.com/about/

Photo Credit: Kristy Pargeter, Dreamstime Stock Photos

Reality Check – State Governors Have No Authority to Exclude Syrian Refugees

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In the aftermath of the recent terrorist attacks in Paris, there has been widespread debate as to whether the United States should accept Syrian refugees.  Although the investigation into the Paris attacks is ongoing, it appears that some of the terrorist involved in the attack posed as refugees in order to enter the country.  The fear of a similar “Trojan Horse” attack in the United States has clearly struck a nerve and in some respects, divided the Country. Some argue that the United States was founded by immigrants, has a long history of welcoming and protecting refugees and should not let reflexive and irrational fear influence our social philosophy or domestic policy. Citing the Paris attack, others argue that until we have an effective and proven method of vetting Syrian immigrants, we should not accept them within our borders.

A number of state governors have recently joined this increasingly heated debate.  For instance, Texas Governor Greg Abbott and Massachusetts Governor Charlie Baker, have explicitly stated that their respective states will not accept any more Syrian refugees.  Louisiana Governor Bobby Jindal has gone so far as to issue an Executive Order to the State’s executive agencies, requiring the agencies to use all lawful means to prevent the resettlement of Syrian refugees within Louisiana. In contrast, Pennsylvania’s Governor Tom Wolf has welcomed the resettlement of Syrian refugees within the State.

Lost among the rhetoric as to whether the United States should or should not accept Syrian refugees, is the fact that state governors have absolutely no legal authority to prevent Syrian refugees from settling within their respective borders.  Indeed, the law on this point is crystal clear.   The United States Constitution and federal law vests all authority for accepting foreign refugees with the federal government, not the states. Any action taken by states to prevent refugees from settling within their borders, whether by executive order (as in the case of Governor Jindal) or by legislation would violate the United States Constitution and almost certainly would be struck down by a federal judge.

Article I, section 8 of the United States Constitution provides that the federal government (not state governments) shall have sole authority to “establish a[] uniform Rule of Naturalization.”  This provision of the Constitution has been broadly construed by the United States Supreme Court and has been interpreted to preempt the majority of state laws dealing with immigration. In other words, state governors and legislators are not allowed to pass or enforce laws that deal with immigration or naturalization.  This includes laws seeking to keep refugees out.

The United States Supreme Court addressed this issue a few years ago when Arizona attempted pass and enforce laws designed to be tough on illegal immigration.  Justice Kennedy, writing for the majority in Arizona v. United States, cogently explained the Constitutional authority and rational for vesting the federal government (as opposed to the various states) with the sole right to regulate immigration:

The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens.  . . . This authority rests, in part, on the National Government’s constitutional power to “establish an uniform Rule of Naturalization,” U.S. Const., Art. I, § 8, cl. 4, and inherent power as sovereign to control and conduct relations with foreign nations. . . .

The federal power to determine immigration policy is well settled.  Immigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws. …

It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate states.

In light of the Constitutional authority granting the federal government sole authority to deal with immigration, any state law or executive order seeking to keep foreign refugees out would be preempted by federal law.  Specifically, any attempt by states to exclude refugees would be preempted by the federal Refugee Act of 1980, which permits the President to admit refugees facing “persecution or well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”

So what does all of this mean for Syrian refugees?  It means that if state governors actually attempted to follow through with their threats and bar Syrian refugees from entering their states, their actions would be illegal and certainly overturned by the federal courts.

James Goslee is a trial attorney in Philadelphia and can be reached at http://jamiegoslee.com/about/

 

Photo Credit: Kristy Pargeter, Dreamstime Stock Photos

Pennsylvania Supreme Court Suspends Attorney General Kathleen Kane’s Law License Via Emergency Order

City Hall

In a surprising move (shocking really), the Pennsylvania Supreme Court entered a one page Order today temporarily suspending Attorney General Kathleen Kane’s law license.  Although the Order temporarily suspended Kane’s license to practice law, it specifically stated that it “should not be construed as removing [Kane] from elected office.”   The full Order can be found online here: http://www.pacourts.us/assets/opinions/Supreme/out/2202DD3%20-%201023669815398023.pdf?cb=1

Kane was indicated earlier this summer and is currently facing criminal charges in Montgomery County for allegedly leaking secrete grand jury material.  The Montgomery County District Attorney has alleged that Kane illegally leaked grand jury material in order to embarrass a fellow prosecutor she viewed as a political opponent. Kane has vehemently denied any wrongdoing.

Today’s surprising Order was entered in response to an action initiated by the Pennsylvania Attorney Disciplinary Board to suspend Kane’s law license.  In August, the Disciplinary Board filed a Complaint seeking to suspend Kane’s law license because of her “egregious conduct” in leaking the grand jury information.  The Disciplinary Board also claimed that because Kane is currently a criminal defendant, there “is a concurrent conflict of interest for Kane to continue practicing law while being prosecuted for violating the very law she is was vested with the power to enforce.”

Kane has maintained that the Disciplinary Board’s efforts to suspend her law license violates her constitutional right to due process.  In other words, Kane believes a jury of her peers must convict her of leaking grand jury material before her license can be suspended.

Today’s Supreme Court Order temporarily suspending Kane’s license is extremely surprising.  Even more so considering the Supreme Court went out of its way to make it clear that the Order was not meant to remove her from office. The upshot here is bizarre – Pennsylvania’s current Attorney General, its “lawyer in chief,” cannot practice law.  The ramifications of this Order on Kane’s ability to fully run the Attorney General’s Office are unclear, but it is safe to assume that this will not be the last word from the Supreme Court.

Updates to follow.