Valpo Law Blog

Analysis of current legal issues and cases in the Seventh Circuit Court of Appeals

Category: Criminal Law (page 1 of 7)

Seventh Circuit’s Decision Discourages the Code of Silence

By: Duke Truong
J.D. Candidate, 2017
Valparaiso University School of Law

Who can serve as witnesses in police brutality cases? On January 28, 2016, the Seventh Circuit Court of Appeals provided an answer with its decision in United States v. Smith, Nos. 14-3744, 14-3721.

In September 2012, Putnam County Officer Terry Joe Smith punched a handcuffed Cletis Warren in the face. The ambulance took Warren to the hospital to stop the profuse bleeding. Fellow officers at the scene heard Smith say, “I guarantee I broke that mother fucker’s nose.”

Several months later, Smith arrested Jeffrey Land for domestic violence. After Smith handcuffed Land, he lifted Land in the air, dropped him, and drove his knee into Land’s sternum, causing Land to defecate on himself. Smith bragged about the incident to a fellow officer and took pride that it was not the first time.

These two incidents of police brutality are but a small sample of the ills of police misconduct plaguing our society.

A jury found that Smith violated 18 U.S.C. § 242 by subjecting Warren and Land to the intentional use of unreasonable and excessive force in violation of their constitutional rights. Smith was sentenced to 14 months in prison and two years of supervised release.

Both Smith and the government appealed to the Seventh Circuit: Smith appealed his conviction, and the government appealed the lenient sentencing. The panel ruled for the government, upholding the conviction and requiring the district judge to resentence Smith based on the guidelines.

Officers who witnessed Smith’s assaults testified that his use of force was unjustified because neither Warren nor Land were resisting. In the court’s words, the officers testified to Smith’s “violent, gratuitous, and sadistic batteries of Warren and Land.”

Smith’s lawyer objected to the officer’s testimony by asserting that they were unqualified expert witnesses under Federal Rule of Evidence 702. Writing for the panel, Judge Posner upheld the trial court’s rejection of that objection under Rule 701. Under Rule 701, a non-expert witness can give an opinion based on the witness’s perception to help determine the fact in issue that isn’t based on scientific, technical, or specialized knowledge.

Police use of excessive force has been nothing short of controversial. In a 2010 annual report by the Cato Institute, excessive force complaints made up 56.9 percent of cases that involved the physical use of force by peace officers. On July 17, 2014, a plainclothes police officer applied a chokehold to Eric Garner while a swarm of officers tried to pin him to the ground. Garner gasped for air and uttered his final words, “I can’t breathe.” Mr. Garner’s death serves as a prime example of excessive force and many Americans’ worst fears when they have face-to-face contact with the police.

With this decision, the Seventh Circuit discourages the code of silence that exists within the police community. The officers stood up despite the misconception that they were turning their backs on one of their own.

Moderate Requirements Results in Strict Penalties for Child Abusers. 

Witness swearing on the bible telling the truth in the court room

By: Haley Holmberg
J.D. Candidate, 2017
Valparaiso University School of Law

Recently, the Seventh Circuit Court of Appeals reviewed what the district court called one of the most serious crimes it has ever seen. In doing so, it looks at evidence submitted during trial, consecutive v. concurrent sentences, supervised-release conditions, and restitution. So just what exactly occurred in USA v. Bour you ask?

Bour paid a woman on several occasions to molest her daughters, who were between 4-18   months and 3-5 years during the course of abuse. Bour, himself, sexually touched the youngest child, penetrated her mouth and genitals, and filmed at least two encounters with her. Additionally, he photographed the genitals of the older daughter. Bour later plead guilty to purchasing a child for the production of child pornography under 18 U.S.C. § 2251A(b), three counts of producing child pornography under 18 U.S.C. § 2251(a), and one count of possessing child pornography under 18 U.S.C. § 2252(a)(4). Bour was sentenced to life for purchasing a child for pornography production and 85 consecutive years on the remaining counts.

Bour objects to the description of the masturbation videos based on claims of the Fifth and Fourteenth Amendment right to privacy. Under 18 U.S.C. § 3661, Congress provides that for the purpose of imposing an appropriate sentence, no limits should be placed on information concerning the background, character, and conduct of a person. The guidelines, statutory law, and the constitution only limit information on certain enumerated characteristics from being admitted. Bour’s masturbatory conduct was relevant to sentencing in that it demonstrated that he took pleasure in producing graphic films.

The court reviewed Bour’s challenge on imposing consecutive versus concurrent imprisonment terms on procedural error and substantive reasonableness grounds. Bour alleges the district judge erred in failing to explain why he imposed consecutive sentences. If the sentence for the highest statutory maximum is “less than the total punishment, the district court may run counts consecutively”; when a ruling is made above this guideline an explanation must be given. Sentencing “based on factors sufficiently particularized to the individual circumstances of the case” will not be found to be in error. As the district court considered all factors set out in Bour’s memorandum and considered mitigation, no procedural error is found. Further, a sentence is not deemed unreasonable because it is above the advisory sentencing guidelines. “While a more significant justification is needed for a major departure from the guidelines, that justification need not be extraordinary”.  Considering the horror of Bour’s crimes, the district court did not abuse its discretion in substantive reasonableness. The judge believed it was necessary to ensure Bour never left prison.

The court reviewed the challenge of supervised release for plain error. Bour challenged six conditions of supervised release that were inapplicable to him, overbroad, or vague. He failed to show that his substantive rights, the criminal proceeding’s fairness or integrity, or the proceeding’s public reputation would suffer. As Bour is serving a life sentence he will never be subject to his conditions of release, therefore his point is moot.

Finally, Bour challenged the restitution award, which was reviewed for plain error. If a victim’s losses are not apparent ten days before sentencing, the prosecutor must inform the court, and the court shall set a final-determination date no more than ninety days from sentencing. As the minor victims had no guardian at the time of sentencing, the government could not decide the needed restitution until after the minors received court-appointed guardians. However, if the district court makes it clear that restitution will be ordered, the power is retained to set restitution after the time period. The district judge made it clear 89 days after sentencing that restitution would be ordered, reserving the right to set it at a later time.

The court affirmed all challenges in this order. This case sets out a precedent that not only will affect the defendant, but the rest of society. Bour’s case proves that children are among one of the most protected classes of individuals and we aim to keep it that way.

Life in prison for juveniles under RICO?

Ashley Merritt
J.D. Candidate 2017
Valparaiso University School of Law

Should juveniles be sentenced to life in prison without the possibility of parole? In a recent case, the Seventh Circuit Court of Appeals addressed this unsettling question.

In 2005, Latin Kings gang members Martinez and Vallejo were indicted under the Racketeer Influenced and Corrupt Organization Act (RICO) for crimes they committed as juveniles, including first degree murder. After pleading guilty, both Martinez and Vallejo were sentenced to life in prison. The defendants now claim that they are entitled to new sentencing hearings under Miller v. Alabama, which held that mandatory sentences of life in prison without the possibility of parole for juveniles violate the Eighth Amendment.

Martinez and Vallejo were both sentenced to life in prison under 18 U.S.C. § 1963, which states that anyone who violates any RICO provision shall be imprisoned not more than 20 years, or for life if the violation is based on a racketeering activity for which the maximum penalty includes life imprisonment.

In his opinion, Judge Flaum identifies two possible interpretations of the statute. On one hand, it is possible that the statute mandates a life sentence whenever the crime carries a maximum sentence of life in prison. If so, the statute is unconstitutional under Miller. On the other, it is possible that the statute sets only a maximum sentence of life in prison in such cases, and a court could choose to give a lower sentence.

Although Judge Flaum states that most courts have interpreted the statute to impose a sentence of no more than twenty years, he reasons that because the defendants were given individualized sentencing hearings and not sentenced by statutory mandate, the district court did not violate Miller.

Given the severe nature of the defendants’ crimes, life sentences can certainly be justified even if they were minors at the time. However, the ambiguity behind the sentencing guidelines suggests that even courts have trouble interpreting them. Maybe the legislature should change the language of the statute to be less ambiguous. But perhaps it is time for a complete overhaul of the mandatory minimum sentencing guidelines.

Child Custody Battle From Over the Border

<> on April 1, 2014 in Nogales, Arizona.

By: Macey Albert
J.D. Candidate, 2017
Valparaiso University School of Law

We all know child custody gets ugly within the United States, but what happens when it becomes tug-a-war between U.S. jurisdiction and jurisdiction outside of the U.S.? Judge Ripple wrote the opinion for a three- judge panel to better understand this battle in Ortiz v. Martinez.

Mr. Ortiz and Ms. Martinez lived together with their two children, A.O, a seven year old, and L.O, a sixteen-year-old boy. They all lived together in Mexico City. On August, the couple purchased round-trip tickets to Chicago to visit Martinez’s family. Ortiz was scheduled to return to Mexico on the 13th, and the rest of the family on the 20th. Ortiz retuned, but Martinez and the children did not. She informed Ortiz that her and the children would not be returning. Keeping the children in the United States would secure the safety of the children. In particular secure the safety of, A.O., from being sexually molested and emotionally abused by Ortiz.

Ortiz filed action under conditions of the Hague Convention seeking the return of the two children to Mexico. Martinez asserted that Ortiz had acquiesced to her retention of the children in the United States, permitting the district court to deny the return of the children under Article 13(a). Ms. Martinez claimed she had a claim under Article (b) because the children faced “grave risk” of harm if returned. She lastly presumed that the return would contravene with laws of the State of Illinois, the U.S. Constitution, and fundamental principles of human rights. Later, Martinez invoked Article 13, expressing L.O.’s desire to remain in the United States.

Dr. Machabanski, a psychologist, was appointed by the court to evaluate the children. The district court held a three-day hearing. It heard testimony from Martinez, Ortiz, and family members, and a camera interview was conducted for the two children. The court heard substantial evidence supporting the claim that Mr. Ortiz had sexually abused A.O. Martinez, including inappropriate touching of their daughter in the vaginal area. The doctor first told her that the rashes were diaper rashes and a cream was prescribed; however, the rashes reappeared. Martinez first perceived inappropriate contact when A.O. was three years old in the bathroom, where A.O. was naked and against the wall and Ortiz on his knees, naked in front of her.

A.O. corroborated this testimony explaining with gestures, and words. Dr. Machabanski testified that A.O. exhibited behavior consistent with having being sexual abused and she portrayed negative emotional toward her father, Ortiz, during playtime. The court dismissed the best wishes of the child defense, and independently found that L.O. was old enough and mature enough to make his own decision.

The Seventh Circuit reviewed the lower courts factual finding for clear error and its conclusion that those facts established a grave risk of harm de novo. The Court found that Mr. Ortiz’s evidence lacked credibility. Their reasoning was that Martinez wanted to flee to the states because he was having an affair, and brainwashed A.O. to testify. The Court found that the claim that Ortiz sexually abused his daughter meets the clear and convincing standard. The evidence of sexual abuse was substantial and thus met the grave risk exception.

No Wonder People Do Not Like Insurance Agents

insurance-management

By: Jeremy M. Schmidt
J.D. Candidate, 2017
Valparaiso University School of Law

Ohio National Life Assurance Corp. v. Douglas W. Davis, et al. came before the Seventh Circuit on appeal from a summary judgement decision at the trial court. Mavash Morady (Morady), a defendant in this case, was a contracted insurance agent with Ohio National Life Assurance Corp. (Ohio National). Douglas Davis (Davis), another defendant in this case, was working with Morady to defraud Ohio National by using an investment strategy known as Stranger-Owned Life Insurance (STOLI).

Davis and Morady devised a scheme where they chose people that were older because they believed that they would be prime candidates for their scheme. It would begin by Davis approaching an individual, and then asking them to take out a life insurance policy. These people would receive a compensation from Davis for taking out a life insurance policy.

Morady, being the life insurance agent, would meet with the chosen people and have them fill out all of the forms to apply for life insurance. Morady would then fraudulently alter the documents to make these potential clients look like they are younger, and healthier, than they actually were. Ohio National would confirm that these prospective clients were actually people, but they did not check further into any of the clients to ensure the paperwork was completely accurate.

Davis and Morady then would contact the clients about a month after the life insurance went into force. The two then would have the clients sign the policy over to a irrevocable trust that was managed by a company that Morady’s husband owned. The life insurance policy then was owned by the company, and the beneficiary was also the company. The clients never paid any of the premiums because the company paid the premiums for them. The company then would sell the life insurance polices to investors. By doing this, Morady was violating her employment contract with Ohio National because the employment contract does not allow for an agent to sell policies that will be involved in a scheme where a third party will pay the premium, and will thus benefit from the death of the insured.

Once Ohio National found about the scheme Davis and Morady had been carrying out, they voided out all the policies that were involved. Ohio National then filed a complaint against Davis, Morady, Morady’s husband, and other investors. The two sides filed briefs that had a common fact pattern, which means that there was no dispute to the events and how they happened. Ohio National filed a motion for summary judgement, which the court granted in their favor. The court gave Ohio National everything they asked for with the exception for the judgment against Steven Egbert (Egbert). The court reasoned that Egbert was an innocent bystander in the scheme when he made an investment into a life insurance policy, and could not have known the policy was created through fraudulent acts.

The Seventh Circuit decided that summary judgement in favor of Ohio National was correct and the damages awarded were reasonable because Davis and Morady were found to have committed a tort of civil conspiracy.

Homicide By Strangulation… During Sex

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By: Macey Albert
J.D. Candidate, 2017
Valparaiso University School of Law

For one man, a seemingly great night turned into a long journey through the judicial system. In Thomas v. Clements, the Seventh Circuit Court of Appeals reviewed a man’s conviction where he killed his wife after applying too much pressure on her during sex.

Joyce Oliver-Thomas and Oscar Thomas were married. After nine years of marriage, the two divorced; however, Oliver allowed Thomas to continue living in her apartment where the two continued a sexual relationship. On the night of the incident in question, the police received a call from Thomas saying that Oliver was unconscious. When the police arrived Oliver was unresponsive, eyes open, and without any pulse. She was announced dead at the hospital.

Thomas gave two inconstant statements. He first stated that he left the apartment and came back and found Oliver grabbing her neck in a choking manner. He later stated that he left the apartment and began watching a pornographic movie. When he returned he and Oliver had sex, during which they fell off the bed and continued to have sex. He mentioned that at one point while engaging in sexual activity he had his arm around her neck. Thomas was found guilty by the trial court for unintentionally causing Oliver’s death by putting pressure on her neck for too long during sex. The trial court ruled under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and Thomas appealed, alleging that the wrong standard was applied.

To prevail on his claim, Thomas had to first show that his counsel’s performance was deficient, meaning it fell below the objective standard of reasonableness. Thomas argued the defense counsel was deficient in failing to consider and consult with a pathologist who would have reviewed the autopsy report and testified. Dr. Mainland’s (the plaintiff’s expert) pretrial testimony showed that Thomas acted intentionally. This corroborated with the testimony of the plaintiff in which he admitted having his arm around her neck before she died, as well as the counsel choosing not to argue the issue of causation. The combination of these factors gave what seemed to be a reasonable inference of intent. There were no signs of fight or struggle between Thomas and Oliver, however. Therefore,  counsel should have known there was reason to question a finding of intentional homicide. A responsible counsel would have at least contacted an expert to check if the medical findings could be reconciled.

Next, Thomas had to show that there was a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different. The expert mention that strangulation would likely result after four minutes of pressure, meaning there were roughly fifty-five minutes in which Oliver was not being choked to death. All parties admit there was no evidence of external marks on either Thomas or Oliver. Dr. Teas’s testimony in the post-conviction hearing stated that because there were no external bruising on the neck or bone, the necessary injuries of strangulation were missing.

Dr. Teas’s testimony provided that even if Thomas did cause Oliver’s death, it was not intentional. The facts were consistent with an accidental death and sufficient to raise a reasonable doubt; therefore, there was evidence of prejudice for ineffective assistance of counsel purposes. The Seven Circuit  ruled that after reviewing the case de novo the counsel’s performance in relation to a pathologist expert was deficient and that Oliver was prejudiced by counsel’s deficient performance.

The Unlawful Inquisition

By: Jonathan Joseph,  MBA, CPA
J.D. Candidate, 2016
Valparaiso University School of Law

How much information may a judge solicit from a telephonic interview? When does an oral interview become an unlawful interrogation? A recent case decided by the Seventh Circuit attempts to answer these very questions.

After serving a term in an Illinois state prison for a sex crime, the plaintiff was committed to a Treatment and Detention Facility, pursuant to the civil Sexually Violent Persons Commitment Act. He had a job in the facility’s dietary services department, but was fired. He filed suit against four dietary department staff members under 42 U.S.C. 1983. The plaintiff alleged that he was fired in retaliation for previous lawsuits he had brought against staff members. As required by 28 U.S.C. § 1915(e)(2), the district judge screened the complaint at the outset of the case to determine whether it “fail[ed] to state a claim upon which relief may be granted.” The judge found that the lawsuit “contained only conclusory allegations [in which] the plaintiff simply stated he had filed previous lawsuits and assumed people knew about it.” He ruled that the complaint did, indeed, fail to state a claim, and dismissed the suit with prejudice.

The judge had interviewed the plaintiff by telephone. During the interview, which the judge characterized as a “merit review,” no transcript or audio recording was kept. One could characterize the interview as inquisitional in its nature. The term “inquisition” has ominous overtones to those familiar with European medieval religious history, but today, an inquisitorial hearing is defined as “a hearing in open court in which the judge examines the parties to the suit rather than leaving examination to the lawyers, which is adversarial rather than inquisitorial.” In this case, the district judge went beyond the inquisitorial in its modern sense, because he examined the plaintiff in “secrecy being secured by the absence of a transcript, or even a judge’s or reporter’s notes.”

The Seventh Circuit reversed the district judge’s decision, noting that it previously rejected ex parte telephonic interrogation as a method of screening complaints to determine whether they state a claim. The court recognized that there are circumstances that merit telephonic interviews. These  can involve parties who are incarcerated and are done in order to save the time and expense of transporting a prisoner to court. However, these circumstances do not allow for questioning regarding the validity of the case. It is permissible for the judge to interview a pro se detainee plaintiff to determine what the facts of the case are, but not whether the plaintiff’s case is meritorious.

When a judge conducts any questioning of a witness, plaintiff, or defendant, that interview must be recorded and entered into the record. The judge must ensure that a transcript or recording of the interview be made to allow appellate review and prevent a reversal of a case that even the Seventh Circuit felt was weak: “barebones—maybe so thin that it could have been dismissed without further ado.” The court was obligated to take the judge’s error as grounds for reversal.

Citing Williams v. Wahner, the Court did not “mince words” when declaring that the use of ex parte telephonic interrogation as a method of screening complaints to determine whether they state a claim is unlawful. The court said that 28 U.S.C. § 1915A(a), a screening provision similar to § 1915(e)(2), does not contemplate an oral examination of a party by the judge designed to elicit answers that will enable the judge to resolve contestable factual issues. “If the validity of a claim depends on the accuracy of the plaintiff’s factual allegations, and their accuracy can’t be resolved without an oral hearing, it is a matter to be resolved at trial, in conformity with the procedures that govern trials. . . We expect that when this court declares a procedure employed by a district judge, or district judges, of this circuit unlawful, the procedure will be abandoned. Regrettably, not all the district judges have abandoned it.”

If a judge needs additional information from a detainee to determine the merits of a lawsuit going forward, the judge can make a limited appointment of counsel specifically for the purpose of fact-finding and release the attorney after sufficient information has been gathered. That may only involve a single interview or even a telephone call, which would satisfy the judge’s need for information and uphold the lawfulness of the manner in which it was obtained. Inquisitions, however, are unlawful and viewed with prejudice by the Seventh Circuit.

Minimum Wage for Inmates?

By: Haley Holmberg
J.D. Candidate, 2017
Valparaiso University School of Law

The federal minimum wage provisions are contained in the Fair Labor Standards Act (FLSA), which set the federal minimum wage at $7.25 per hour. But are detainees and pretrial detainees able to receive minimum wage when they acquire jobs in jails or prisons? The Seventh Circuit Court of Appeals helps us to better understand the answer to that question and more while reviewing Smith v. Dart.

Smith was a pretrial detainee at the Cook County Jail. He brought this claim pro se in a civil rights action under 42 U.S.C. § 1983 alleging that Sheriff Thomas J. Dart violated his federal rights by paying him insufficient wages and subjecting him to inhumane working and living conditions. The trial court dismissed the claims as to his insufficient wages and working conditions on a preliminary review under 28 U.S.C. § 1951A. Dart moved to dismiss the remainder of the claims for failure to state a claim for relief under FRCP 12(b)(6), or alternatively for a more definite statement under rule 12(e) .

In response, Smith sent two letters to the court. The district court did not address the first letter, and it treated the second letter as a motion to introduce evidence, which the court denied. The district court then granted Dart’s motion to dismiss as uncontested and dismissed Smith’s complaint without prejudice. Smith was informed of the pleadings deficiencies and instructed to amend his complaint and resubmit it. Smith attempted to do so, but the court construed his attempt as a motion for reconsideration, which the court denied. The court gave him a second chance at amending his complaint and Smith, again, attempted to resubmit an amended complaint, but the court again construed this pleading as a motion for reconsideration, which was again denied. The court then dismissed the case with prejudice pursuant to FRCP 41(b).

Smith then appealed his case to the 7th Circuit which reassessed his complaint because pro se pleadings are to be held to “less stringent standards than formal pleadings drafted by lawyers.” The court found that the trial court should have considered the first letter that Smith wrote in response to Dart’s motion to dismiss as it clarifies Smith’s initial pleadings. The court held that, as Smith’s letter alleges that the jail food did not meet nutritional standards in accordance with regulations, the claim should not have been dismissed. The letter further clarifies that the jail water is contaminated and contains various pollutants, constituting allegations sufficient to state a claim upon which relief can be granted.

As to Smith’s work wages, the court held that the federal minimum wage set out by FSLA was intended to protect all employees in the free market, of which he was not a member. As the jail is responsible for providing him with his basic needs such as food, shelter, clothing, and medical care, his job in the jail helps to offset those living costs. In conclusion, the court reversed the district court’s decision with respect to his inadequate food and contaminated water claims and remanded for further proceedings on those aspects. The Seventh Circuit affirmed the dismissal of Smith’s other claims.

This case demonstrates the demand for the judicial system to allow pro se defendants to be given the benefit of the doubt. Further, it puts an emphases on the importance of the Courts to not reject a defendant’s petitions based on rules that even the most educated lawyers struggle to master. Before an individual decides to break a law which may be punishable by jail or prison time, you may want to think twice. If being behind bars is not enough of a deterrent, an individual will be additionally be required to pay numerous fines, attorney’s fees, and may also be subject to less than desirable living conditions and very little—if any—pay for work.

Urinating Not Verbal, 7th Circuit Holds

800px-End_of_the_world_prison

Zach Melloy
Juris Doctor Candidate, 2016
Valparaiso University Law

Ronald Jerome Beal, an inmate of a Wisconsin state prison, filed a pro se §1983 complaint against a prison guard, alleging that they had inflicted cruel and unusual punishment on him in violation of the Eighth Amendment.

The magistrate judge of the United States District Court for the Eastern District of Wisconsin dismissed Beal’s complaint before the defendants could respond, simply stating that “standing alone, verbal harassment of an inmate does not constitute a constitutional violation.” Beal then filed an appeal with the Seventh Circuit Court of Appeals.

The allegations behind Beal’s original complaint are disturbing to say the least. According to Beal, the prison guard was constantly making blatant implications to other inmates that Beal was gay, urging the inmates to perform sex acts in front of him so as to “make him smile.” The prison guard also frequently urinated in front of Beal and other inmates, smiling suggestively at Beal while doing so. As a result of the prison guard’s treatment, inmates began to harass him by using homophobic slurs.

The harassment eventually became so unrelenting that Beal was forced to seek psychological help at the prison’s Clinical Services division. Beal kept a record of his visits with the counselors, and even filed a grievance against the prison guard, which was upheld by the prison. However, two years passed, and Beal was never informed of what disciplinary measures, if any, were taken.

The Seventh Circuit was rightfully appalled at Beal’s situation. In an opinion written by Judge Richard Posner, the Court stood firm on the principle that psychological pain can be enough to constitute cruel and unusual punishment. In its view, the Court held that it is completely arbitrary to draw a categorical distinction between verbal and physical harassment. Judge Posner  analogized this principle by saying, “Suppose a prisoner is having severe headaches and he complains about them to a prison doctor, who writes him a prescription for a powerful drug. A malicious guard learns of this and tells the prisoner the following lie: ‘the doctor didn’t tell you, but he told me: you have incurable brain cancer and will be dead in three months.’”

It may have been a form of simple verbal harassment, but such harassment can have devastating effects and consequences. As a result, the District Court erred when it summarily denied Beal’s complaint under the assumption that verbal abuse does not arise to cruel and unusual punishment. The Court of Appeals did not stop there, however; Judge Posner also stated that the District Court erred when it said Beal only claimed verbal harassment. “Urinating isn’t verbal,” the opinion stated. “We can imagine… that the plaintiff was seriously upset by Schneider’s nonverbal as well as verbal behavior, which may have… inflicted significant psychological harm on him,” the Court noted.

The Court then reversed the dismissal of Beal’s complaint and remanded the matter back to the District Court for further proceedings and consideration. Beal must still prove the merits of his claim, but at least now he will have a chance to make his case in court.

Practicality of Actual Injury in Data Breach

Backlit keyboard

By: Duke Truong
J.D. Candidate, 2017
Valparaiso University School of Law

Imagine being one of four million members under the care of Advocate Health and Hospitals Corporation (Advocate) and waking up to news that thieves have stolen your confidential information.  This is exactly what happened the morning after July 15, 2013, when burglars stole four password-protected computers from Advocate.   The computers contained patient’s confidential information: social security numbers, Medicare and Medicaid data, medical record numbers, health insurance data, and medical diagnoses along with names, addresses, and date of birth.  Advocate, whom patients entrusted with the duty of protecting their data, did not notify them of the breach until August 23, 2013.  Despite these facts, no proof of improper access or improper use of the confidential information actually occurred.

Matias Maglio and other affected patients brought a class action suit against Advocate in the circuit court of Lake County and Kane County.  Both lawsuits alleged claims of negligence, invasion of privacy, and violations of the Consumer and Deceptive Business Protection Act and the Illinois Personal Information Act.  Yet, plaintiffs failed to allege any unauthorized uses of their private information.  Despite the fact plaintiffs did not suffer any actual injury, they moved forward with their lawsuits anyhow.

Advocate moved to dismiss the complaints under the Rules of Civil Procedure for failure to state a claim and for lack of standing.  The plaintiffs did not suffer an injury-in-fact and only speculated that their stolen confidential information may lead to increased risk of identity fraud.  The doctrine of standing requires a plaintiff to raise issues of a real injury to which the law can recognize so to provide a remedy.  The complaints only alleged future, uncertain risk of identity fraud. The district courts of Lake County and Kane County dismissed the complaints in May and July of 2014, respectively.

However, the plaintiffs appealed to the Appellate Court of Illinois on grounds that the lower courts erred in its decisions.  The appellate panel consolidated the cases from the two counties and affirmed the district court’s decisions in Maglio v. Advocate Health and Hospitals Corporation on August 6, 2015.

The appellate panel reiterated that plaintiff’s failure to establish any specific injury makes the lawsuits insufficient.  To date, only two of the 4 million members suffered actual identity theft and they are not parties in the lawsuits.  The court held that this fact alone does not prove that plaintiffs face certain imminent risk of substantial harm.  Speculating about a future injury or harm is not grounds for a claim in the court of law.  To move forward, plaintiffs must show that their medical records were in fact disclosed to third parties.

Although the breach did not result in unauthorized use of information, speculation is not a cause for action.  To help lessen the burden on the courts, plaintiffs have to make sure their claims contain actual injuries otherwise it is a waste of resources for parties involved.  It may seem minor to determine actual injury, but the practicality is priceless.  As society increasingly depend on technology to store confidential information, employers (especially healthcare providers) should make data security one of the top priorities.  Employers should consider safeguards such as encryption and periodic audits to lessen the likelihood of a data breach. Proper training about HIPAA, security regulations and data privacy laws will further guard against a breach.

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