Yet again we are mourning for the loss of innocent lives and for the devastation created for those who were injured or were witnesses; for those whose lives have been changed forever in another mass murder. The needless loss of children, brothers, sisters, spouses, parents, lovers, and friends, in a short span of time -- caused by a seriously disturbed individual who used a semi-automatic weapon to kill as many people as he could as quickly as he could.
This massacre has sparked yet another debate on how to prevent these mass murders that are increasing in frequency. I have watched as the debates quickly turn ugly - with vicious ad hominem attacks being launched. I worry that we have become desensitized to the loss of life and are no longer able to empathize with those who were injured or who were witnesses to the attack or its aftermath. I worry as people suggest that we have a duty to come armed to the teeth to our work places, or schools, or when we go to a club, restaurant, coffee house or movie.
I choose not to carry a gun -- that is my right. I respect those who choose to carry guns -- that is their right. But I am angry that, along with all the day to day struggles we face, we have lost the right to enjoy life without the fear of some lunatic taking out his revenge on us. I am angry we can no longer attend a football game without being subjected to metal detectors and pat down searches, and can no longer carry a purse inside the stadium. I am angry we cannot go listen to a government official in our community without fearing for her safety as well as those who have come to hear her. I am angry we cannot go to a movie without checking to see if anyone near you is armed. I am angry that police officers, sitting in a coffee shop or in their patrol car, cannot take a well deserved break without the fear that they will be executed. I am angry we cannot go out to a club to have a good time without fear. I am angry we cannot send our children to school or college without worrying that someone will shoot and kill them. I am angry that the work place is so full of violence that additional steps have to be taken to protect workers. I am angry, but I also feel helpless.
When I feel helpless, I try to find answers. I'm not sure that I have found the perfect answer, or that there is the perfect answer, but I believe there is a way we can all do something to prevent further tragedy. Please read the article written by Mark Follman for Mother Jones in the link at the bottom of my blog. Please share it.
The Supreme Court of the United States: Will they hear the Connecticut assault weapons ban case?
Today, the Supreme Court of the United States ("SCOTUS") is to decide if it will hear a challenge to the assault weapons ban passed in Connecticut after the Sandy Hook massacre where 20 first graders and 6 adults were murdered in 2012. Legal experts predict that the SCOTUS is unlikely to take the case just days after the mass murder in Orlando, Florida. Last December, they refused to hear a challenge to a ban on semi-automatic weapons enacted by the city of Highland Park, a suburb of Chicago. This decision came just 15 days after the massacre in San Bernardino, California where 14 people died and 21 people were injured.
Should the SCOTUS hear the case?
Should the court accept certiorari? Is it time to get a more definitive ruling from the highest court? Do we need further clarification? Should the federal government, a state or a city be able to ban semi-automatic weapons? Do we need further clarification on the 2nd Amendment that reads: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."? This transcription was the one ratified by the States and authenticated by Thomas Jefferson, Secretary of State. Another version was passed by Congress that states: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." The placement of this comma has stirred up much debate -- is the right to bear arms a right of the militia? Or is it the right of the people?
The SCOTUS answered this debate definitively in District of Columbia v. Heller, 554 U.S. 570 (2008) in a 5-4 decision. The Court ruled that the right to bear arms belongs to people, unconnected with any service in a militia. The Court, via Justice Scalia, further ruled that there is no "right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." The Court definitively stated that the Second Amendment extends to all instruments that constitute bearable arms, including those that were not in existence at the time of the founding of our country. Last, the Court ruled that the District of Columbia's total ban on handguns and the requirement that the handgun be stored unloaded, dissembled or with a trigger lock, violated the Second Amendment as it pertains to self defense. The analysis in this opinion is thorough, looking at historical concepts and the realities of modern life. It is well worth reading for those interested. www.law.cornell.edu/supct/html/07-290.ZO.html
In McDonald v. Chicago, 561 U.S. 742 (2010), the SCOTUS held that the Second Amendment rights are fully applicable to the states, meaning that a state cannot deny Second Amendment rights to its citizens.
Most recently on March 21, 2016, in Caetano v. Massachusetts, 577 U.S. ___ (2016), the SCOTUS struck down a Massachusetts law that prohibited the possession of stun guns. Jaime Caetano had a violent ex-boyfriend. He beat her so severely, she required hospitalization. She obtained multiple restraining orders against him -- which he ignored. Jaime's friend offered her a stun gun for self defense. She accepted. One night after leaving work, her ex-boyfriend was waiting for her outside her workplace. He was screaming at her that she was not allowed to work and that her place was with their children. She showed him the stun gun and stood her ground, stating something to the effect of "don't make me use this." He got scared and left.
The SCOTUS issued a two page per curiam (unanimous) decision striking down the Massachusetts law. Massachusetts justified the total ban on stun guns because: (1) they were not readily available at the time the Second Amendment was ratified, (2) they were "dangerous per se at common law and unusual" because they were "a thoroughly modern invention", and (3) stun guns were not readily adaptable to use by the military. These arguments had previously been disposed of by the SCOTUS. Again, the opinon and the concurring opinion of Justice Alito, joined in by Justice Thomas, make for an interesting read.
The previous federal ban on assault weapons.
In 1989, President George H. W. Bush signed an executive order banning the import of assault weapons. On September 13, 1994, Congress passed the Federal Assault Weapons Ban (AWB) which prohibited the manufacture of semi-automatic firearms and large capacity ammunition magazines for civilian use. Presidents Ford, Carter and Reagan supported the bill. Seventy-seven percent (77%) of the American public supported the bill.
The bill was in response to two mass murders. The first was the January 17, 1989, Stockton, California, elementary school mass shooting where 106 rounds were fired from a semi-automatic AK-47 firearm in a 3 minute period, hitting 34 children and one teacher. Five children died. The disturbed murderer shot himself in the head. Most of the children injured and killed were Cambodian and Vietnamese refugees who had come to the United States with their families.
The second incident occurred on July 1st, 1993, and is often referred to the 101 California Street Shooting. The mentally disturbed individual entered the law firm of Pettit & Martin, armed with two TEC-9 semi-automatic handguns with Hellfire triggers (they allow a gunman to shoot faster and turn a semi-automatic firearm almost into an automatic firearm), and another handgun with hollow point ammunition, murdered eight people and injured six more. As San Francisco police officers were closing in, he shot himself.
The bill expired on September 13, 2014, after a sunset expiration provision.
The number of mass murders committed by disturbed individuals armed with semi-automatic firearms is on the increase. This chart details this sordid history and its more recent escalation. www.motherjones.com/politics/2012/12/mass-shootings-mother-jones-full-data
What can we do?
These mass murders are not impulsive crimes. These mass shooters usually signal their intent to engage in mass murder well in advance of their killing spree. I'm closely following the rumor that the wife of the mass murderer of Orlando will be arrested. The rumor is that she had been informed of his plans to some degree and did absolutely nothing to stop him from carrying out his evil intent.
I have just finished reading a fascinating and extremely well researched and written article by Mark Follman in the November/December 2015 issue of Mother Jones.
If you do nothing else this week, read it. Then share it. We, the public, may be exposed to someone who wants to avenge his rage at the world by mass murder. We may have the power to help stop this madness.
Another thought in the vast chorus of thoughts surrounding the death of Harambe, the western lowland gorilla at the Cincinnati Zoo - last September I was fortunate to be able to follow a life-long dream and go Mountain Gorilla trekking in Rwanda. Mountain gorillas are only found in three countries in East Africa (Rwanda, Uganda, and the Democratic Republic of Congo) and are not able to survive in captivity. In the 60's and 70's, many adult mountain gorillas were killed so that their babies (the entire family unit will fight to the death to save a baby) could be taken to a zoo - where it was thought they would be preserved from extinction. None survived. Why is unknown, although they do live in highly structured family groups - that structure is more complex than western lowland gorillas. While other gorilla populations are shrinking at an unsustainable rate, the mountain gorilla population is flourishing – so much so we have to consider whether the loss of their habitat will enable them to keep flourishing at the current rate. But this has taken decades to accomplish and has to address a huge issue: poverty.
The Dian Fossey Gorilla Fund International has done an incredible amount of work to educate people about the plight of mountain gorillas. There is a monument of mountain gorillas as you enter the volcanoes region that states: "If you give us peace, we will give you prosperity." Our porters may have been poachers 10 to 20 years ago - now they make a good living wage acting as porters. While there were fewer than 300 mountain gorillas 20+ years ago, now there are close to 900! I'm not advocating a position on zoos and their role with endangered species. It is wonderful, however, that without a single mountain gorilla in a zoo, that their population is actually thriving. Maybe this will have a positive effect and get more people contributing to groups that are actively working to save our endangered species on the ground and tackling the complexity of issues preventing our endangered species from thriving.
On the loss of the western lowland silverback, Harambe - it is sad all around. Generally, silverbacks are very gentle and loving fathers. They do get aggressive when another silverback is trying to take over a family unit - and they may kill babies to bring the mother into season - if they win the battle. It does not always happen, however, and silverbacks have adopted those babies fathered by other silverbacks. They also can posture aggressively to keep the family in line or safe - we heard the silverback of one group stop two females from quarreling with his behavior. I would have liked to see the zoo officials have the chance to try to lure Harambe away from the boy, but the crowd was out of control and causing more distress to him by screaming and shouting. There was no time to educate the crowd about gorilla etiquette - the mom screaming out to the child did not help, either. It might not have been safe for the zoo to take other action if Harambe was not habituated to the zoo keepers. We were clearly instructed to follow all of the trackers/warden's instructions - do not maintain eye contact, speak in a calm cadence, make submissive noises - the gorilla is in charge! Our wardens had years of contact with their gorilla family and can translate their actions/communications - it's not clear that this is the relationship that the zoo had with Harambe.
Was there negligence?
In 38 years, no child had ever gotten into the gorilla enclosure. To get in the enclosure, the boy had to climb over a three foot tall horizontal barrier, some bushes and then he was on the ledge above the moat. It seems that this was not sufficient to protect the gorillas or visitors, but was it negligent? The mom was at the zoo with four children (I do not know their ages). This child told his mother he was going to get in the moat with the gorilla. She told him he was not going to get in the moat with the gorilla. She turned her attention away, from eyewitness accounts, for a minute. Tragedy resulted. She knows her child -- if he is a willful child who follows through with his pre-announced intentions -- she was negligent. If this was a new behavior, then she was not negligent. An eyewitness has said that after the boy made his declaration, he actively began trying to break through the barriers. An eyewitness said, she tried to grab the boy when his mother failed to act. I realize accidents happen in a split second; I felt my mother had the arms of an octopus when she had three young children to watch - if she was carrying one child, then she had the hand of another who had the hand of the other - especially when we suggested we were tempted to do something we should not do! But accidents do happen. This mother may or may not have been negligent; I don't have the facts to judge. It is sad people are suggesting that she should be killed or the child's father should be killed or that the child should have been killed! It is sad that people are quick to advocate death. It is sad we cannot always co-exist with animals as we were meant to exist.
Whether the mother was criminally negligent is being examined by the Cincinnati Police Department.
On the other hand, many are asking if the zoo was negligent by not making the gorilla enclosure inaccessible. The likely standard the zoo will be judged by in a civil lawsuit, if one is brought by the parents, is whether the zoo had knowledge of the defect and failed to take reasonable precautions to protect its guests. Two years ago, the Pittsburgh Zoo settled a lawsuit with parents who lost their two year old child when he was mauled to death by endangered painted dogs after he fell into their enclosure. The child's mother lifted him up over a 4 foot wooden railing so he could better see into the enclosure. He lunged forward and slipped from his mother's grasp. He bounced off a net meant to catch debris and trash and fell into the exhibit. The zoo claimed that the mother was solely responsible for the loss of her son. The parents claimed that the zoo was aware of the defect in the exhibit - and produced safety committee meeting minutes from five years before the tragic accident - observing that on four occasions, parents had been observed dangling their children over the enclosure. The settlement was confidential.
Like the Pittsburgh case, the Cincinnati Zoo could argue that their liability, if any, was the result of the parent's negligence. If the doctrine of comparative fault is available, the zoo's damages can be reduced by the amount of the parent's fault. For example, if a jury decides that the zoo is 25% at fault and the parents were 75% at fault, and the jury awards the family $5,000 in damages, the zoo would only be responsible for $1,250.
A major difference between the two cases: in Harambe's case, the child suffered only a minor concussion from falling into the moat. In the Pittsburgh case, the child died. The amount of legal damages is vastly different.
Some states have laws making the owners of wild animals, including zoos, strictly liable (a guest is hurt by an animal, the zoo is automatically responsible for their damages). I am not aware whether this is the standard in Ohio.
It does take quite a bit of time for a tranquilizer to take effect - during that time, who knows what could have ensued. The zoo chose the option it felt best given their knowledge of Harambe under exigent circumstances in order to protect the child. No doubt the actions of the zoo were dictated, in part, by results of zoo lawsuits. This was a very sad situation all around. I, along with many others, including his gorilla family, mourn for the loss of Harambe and for the zoo officials who had to make a horrible decision. If you have read through my tome, perhaps you will consider supporting a group like the Dian Fossey Gorilla Fund International or Gorilla Docs or The Center for Whale Research or some other group studying and advocating for endangered species in the wild.
The sixth season premiere of Game of Thrones was Sunday night. I, along with millions, eagerly awaited the show. Is Jon Snow really dead??? How did Sansa and Theon survive the jump from the castle walls??? Did Brienne of Tarth slay Stannis Baratheon??? I was latecomer to GoT - only gaining interest after driving by the GoT studios in Belfast on a vacation. I was intrigued. I came home, binge watched the first and second seasons and was hooked. On such a momentous occasion, I decided that my viewing had to be accompanied by a suitable wine (nods to Cersei and Tyrion Lannister) so I decided on Sinister Hand produced by the Owen Roe winery (named after Owen Roe O'Neill and owned by David O'Reilly). Another nod to the Lannisters - to Jaime Lannister who lost his sword hand during his journey back to King's Landing in previous seasons.
The wine also has a back story. The O'Neills (for whom the winery is named) and the O'Reillys were two competing clans in Northern Ireland. Land was scarce and the two warring groups decided that they would race each other, by boat, to a plot of land. Whichever clan reached the shore first, would win the land. The currents were fierce, the rowers were neck and neck when the O'Neills began to slip behind the O'Reillys. One of the O'Neills dropped his oar, grabbed his sword, cut off his hand and threw it to shore - winning the race and the land.
The wine is even more appropriate for the series premiere of Game of Thrones because it is a Rhone styled blend of Grenache, Syrah, Mourvedre, and Cinsault grapes. I was fortunate to travel to Yakima earlier this month and stop at the Owen Roe winery where a delightful employee suggested the play on words - Game of Rhones.
TRIAL BY COMBAT
I promised no spoilers for season six - so true to my word, there are no season six spoilers here; if you are not current up through season four, read no further because there are spoilers. On two occasions, the guilt or innocence of Tyrion Lannister has been decided by trial by combat. In the first season, Tyrion was accused of the attempted murder of Bran. Tyrion, because of his status as a little person, asked for a champion to fight in his place. Ser Bronn, thinking that he would benefit from assisting a Lannister, stepped up to champion Tyrion. Bronn won the battle and Tyrion walked free. In season four, Tyrion is accused of murdering King Joffrey. Oberyn Martell stepped in as Tyrion's champion. Cersei named The Mountain to champion for the throne. While it appeared Oberyn would win at first, he allowed his ego to get the best of him. Instead of finishing The Mountain off, he continues to ask him who gave the order to kill his sister. The Mountain is able to summon up the strength and - shockingly - kills Oberyn (leading to a substantial plot line in season six).
Where does George R.R. Martin get these plot ideas???? Truth is stranger than fiction. Trial by combat was a Germanic method of resolving legal disputes -- a legally sanctioned duel. When two parties were contesting an issue (usually guilt or innocence), and there were no witnesses or a confession, the two parties would fight it out. The winner was right. The practice was used until the 16th century, despite critics who rightly pointed out that many innocent people were convicted solely because they were weak fighters.
Lawyers generally were not allowed to practice the profession of advocating for and protecting the rights of others until the 13th century. As they came into existence, they were able to try and steer their clients away from trial by combat to gain a trial by jury. In some cases, lawyers were able to get the court to ignore the facts that would have required trial by combat. In civil cases, women, children, the disabled, clergy and the elderly could hire a champion to fight on his or her behalf. In cases where a man and woman were the combating parties, the man was required to fight from a hole dug in the ground up to his waist, in theory, to even the playing field. Eventually, trial by combat was outlawed in Europe.
In every profession, however, there are unorthodox players. The legal field is no different. In August, 2015, an attorney from New York demanded to settle a lawsuit where he and his law firm were the named defendants - via trial by combat. He filed a counter suit and proposed to settle that one by combat as well.
The attorney's request for trial by combat was denied in the last week of March in a one page ruling by New York Supreme Court Justice Philip G. Minardo. Apparently, the judge agreed with the attorney that the right to trial by combat was not outlawed in New York, stating that the that the power to sanction or deny trial by combat resides within the (state) Supreme Court. See Staten Island Advance, March 28, 2016 (siadvance.com). I was able to view a copy of the Court's ruling which reads as follows: "Motion of [Plaintiff] Luthmann in 150848/15 Luthmann v. Chusid is denied and specifically [Plaintiff's] request for Trial by Combat is denied, although this Court does not deny that such power resides within the Supreme Court. The matter shall ultimately be decided by trial by jury or judge." I am amazed to hear that a judge has found trial by combat has not been outlawed in the United States. This opens a whole new dimension to the practice of law! My imagination is running away . . . . But I digress. Rather than wait for a trial by judge or jury, since his request for trial by combat was denied, the attorney settled his cases earlier this month.
My thoughts on Sinister Hand? The color is dark, somewhat brooding (appropriate for the name). I could smell black cherry and earth. The taste is big and chewy. The tannins really stood out to me - so I think this wine will age well. Bottom line - a good choice for Game of Thrones viewing!
Much has been made about the $55 million verdict awarded to Erin Andrews -- that it's not enough, that it is too much money, that she will not be able to collect the money, that the Nashville Marriott will appeal the verdict -- but in my opinion, it's about justice for Erin and for other victims who have been stalked, who have had their privacy invaded and who have been preyed upon by those who post stolen moments/pictures/videos on the internet or who post media meant to be kept private, to the internet, without consent, for revenge or for attention, or for whatever the reason. Victims of this behavior suffer devastating, long term emotional consequences. More needs to be done to lessen their devastation. We need legislation making it criminal for people to post stolen moments on the internet. Police and prosecutors need training on how to investigate and successfully prosecute perpetrators. We need a central clearing house to get those stolen moments off the internet. Obtaining justice should be simpler for victims.
The stalker got off easy. He received 30 months in a federal jail. That's it. The prosecutor's agreed not to file other charges, although there may be more charges filed in other jurisdictions. He admitted to stalking Erin and video taping her in three separate hotels - in Nashville, Tennessee, Columbus, Ohio, and Milwaukee, Wisconsin. But what he did to Erin is just the tip of the iceberg. He admitted to stalking seventeen other women, including other TV personalities, obtaining their home addresses, travel schedules, learning their birthdays, video taping them and sharing the tapes on the internet. He tried to sell his videos of Erin to TMZ but was refused - so he just posted them for his own twisted reasons. Sure, he was found 51% at fault and has a $28 million judgment hanging over his head, but he most likely is judgment proof (has no assets that you can attach to collect the judgment).
Why sue the hotel? I should make it clear that Marriott International was dismissed from the lawsuit by the judge in late January because he ruled that they were not responsible for security at the hotel. The Nashville Marriott at Vanderbilt University is a Marriott franchise managed by West End Hotel Partners and Windsor Capital Group - these were the defendants, along with the stalker.
When you check into a hotel, you expect that your privacy and safety will be protected. I have traveled solo frequently and have never had a hotel clerk state my room number out loud at check in, or given any confirmation to any one whether I am staying at the hotel or what room I am in. This is not a new practice. The hotel owes its guests the highest level of care to keep them safe from unreasonable risks and dangers the hotel knows or should have known about. Stalking, peeping, sexual assaults, domestic violence -- they are not new crimes. Before the 2008 intrusion, the hotel had been advised by a security company that they should have more than one guard and they should have more security cameras. The hotel elected not to follow this advice for budgetary reasons. Even still, if they had just trained their employees to say they could not give out the information that was requested, the matter would have stopped. Instead, a hotel employee confirmed Erin was staying in the hotel, confirmed her room number and accommodated the stalker's request to be booked into the room next to her. Once he was in her room, he listened through the wall to hear when she left the room, walked out into the hall, took a hacksaw and changed the peephole so he could video tape her. He went back into his room, heard her enter, listened to her shower, and when the water stopped, he went into the hall and spent 4 and 1/2 minutes video taping her. No guard was on duty. No cameras recorded his activities. No employee alerted Erin about her "business associate" who requested the room next to her. No housekeeper or maintenance person looked at the peephole to observe that it had been tampered with. And with this negligence, Erin's life was completely transformed.
Defense Attorney Miscalculation. Marc Dedman, defense attorney, argued in his opening statement that psychologists disagreed on whether Erin suffered post traumatic stress disorder as a result of this and said she had thrived in her career as a result of this. His intense cross examination of Erin about her career and earnings was a colossal backfire. I wonder whether he sought other opinions about whether this was the appropriate type of defense. He would have been better off with a different strategy, expressing empathy for Erin, but stressing that this was the sole responsibility of the stalker who engaged in intentional conduct. Erin's attorney, Randell Kinard, hit the nail on the head in his rebuttal argument statement: “They [the hotel] cannot step into her shoes and understand the humiliation that can come from the violation of a standard of care. It’s not in their DNA to understand it.”
It's Really Not About the Money. Tennessee legislator's changed the law of joint and several liability for matters occurring after July 1, 2013. Joint and several liability means that intentional and negligent defendants can be held jointly responsible for any damages - so if the stalker is not able to pay his share of the verdict, the hotel would be responsible for both their share and his share. It is not clear how this amendment will affect the verdict in this case because the injury occurred in 2008 - we will likely hear more about this in the future. Also, because it appears that the damages are for emotional distress and not for physical injury, the award is subject to income taxes. It is also highly likely that Erin's attorney is being paid on a contingency basis - which can run from 33% to 40% of the judgment, plus she will be responsible for all of the hard costs of the trial (deposition transcripts, expert witnesses, etc.). There is speculation the hotel may appeal the decision or file bankruptcy, or enter into settlement negotiations. In all likelihood, Erin will see only a small amount of the $55 million verdict; the bottom line is that no amount of money will make Erin whole.
I applaud Erin for having the courage to pursue this matter, to relive the nightmare in court, to get the only form of justice we have available. I am hopeful that the publicity will encourage other necessary reforms for others who have suffered similarly.
Erin Andrews Lawsuit Settles
April 25, 2016
The attorneys in this case were supposed to appear before the judge today to argue the issue of joint and several liability - where the hotel could potentially be responsible for the full $55 million damages award. They reached a settlement. The amount is confidential. It is not unusual to have a confidentiality provision in any settlement. It is not unusual for the parties to have reached a settlement since each side was facing uncertainty about how the judge would rule and the long process of appeal was looming ahead of them.
Diane Russell is an attorney who is committed to serving her clients with the highest standard in the legal community. In her spare time, she enjoys hiking, traveling, photography, cooking, is the mom to Spanky, and an avid Seahawks fan. Blog posts will eventually get around to some legal issue, but not in ways you might typically expect from an attorney.