Uber Sued by Sexual Assault Victims

Uber assaultA California Court has allowed two women sexually assaulted by Uber drivers to proceed in a lawsuit against Uber, despite the company’s motion to dismiss arguing it could not be held liable for crimes committed by the drivers who they consider independent contractors.

Driver raped passenger

Jane Doe 1 of Connecticut and Jane Doe 2 of Florida brought a single lawsuit against Uber.  Boston Uber driver Abderrahim Dakiri assaulted Doe 1 during a ride home on in February 2015.  Police later arrested and charged Dakiri with assaulting Doe 1 on February 7, 2015.

The driver was a recent immigrant who had been in the country for three years, and a background check would not have turned up other relevant information.  While driving Jane Doe 1, Dakiri drove “more than 15 minutes off route” and parked in a remote area “in order to increase his opportunity to sexually assault her,” according to the opinion.

Jane Doe 2 asserts that driver Patrick Aiello, also a middle school teacher, in Charleston, S.C., raped her.  Aiello was arrested on August 9, 2015 on charges of kidnapping and first-degree criminal sexual conduct.

Uber’s seven-year background check did not pick up Aiello’s 12-year-old assault conviction stemming from a domestic violence arrest in 2003.

While driving Jane Doe 2 home, Aiello locked the car doors and drove the car to a remote parking lot near a highway where he “proceeded to viciously rape her and threaten her with harm multiple times.”

Afterwards Doe 2 was able to run to the highway where she was hit by a car while waiving it down for help.  Police took her to a hospital where she became suicidal and remained in a psychiatric unit for three days.

Uber liable as employer

Doe 1 and Doe 2 asserted claims for negligent hiring, supervision, and retention, fraud, battery, assault, false imprisonment, and intentional infliction of emotional distress under a theory of respondeat superior.

Uber requested the court dismiss the lawsuit, claiming no employment relationship exists between Uber and drivers because they are independent contractors.  Uber recently settled two class action lawsuits for $100 million brought by drivers who sought to be classified as employees.

The settlement allowed Uber to continue classifying drivers as independent contractors, although various concessions were given to drivers.

The court agreed with Doe 1 and Doe 2’s argument that Uber is an employer, who retains control over customer contact and fair price, uses a pool of non-professional drivers with no specialized skills, and may terminate drives at will.

In determining that an employment relationship existed, the court wrote, “it matters not whether Uber’s licensing agreements label drivers as independent contractors, if their conduct suggests otherwise.”

Concerns about safety of female passengers

In the alternative, Uber argued the sexual assaults that occurred were outside the scope of the driver’s employment, rendering Uber not liable for their crimes.  The court wrote that a “sexual assault by a…taxi-like driver…is not so unusual or startling” and assaults such as these are “exactly why customers would expect” background checks of Uber drivers.

Amidst concerns about the safety of female passengers and a Buzzfeed article publishing screen shots of Uber’s customer support system showing thousands of entries containing the words “rape” and “sexual assault,” Uber revealed that it received only five claims of rape and 170 claims of sexual assault between December 2012 and August 2015.

Assaults occurred within scope of employment

The court ruled that despite Uber’s effective argument, the court could not determine as a matter of law that sexual assault by an Uber driver is always outside the scope of employment.  For the purpose of Uber’s motion to dismiss, the court found that the drivers were acting in the scope of employment as drivers.

“Holding Uber liable could also forward the underlying policy goals of respondeat superior, including prevention of future injuries and assurance of compensation to victims,” wrote the court.

The court, in its ruling, dismissed the claims against Uber for the negligent hiring, supervision, and retention of Dakiri, the driver who assaulted Doe 1, because nothing was claimed to have existed in his background that Uber knew or should have known that should have prevented his approval as a driver.

The same claims against Uber for driver Aiello remain however, because Uber should have known about his criminal history.

The court denied all other of Uber’s motions to dismiss, allowing Doe 1 and Doe 2 to proceed on its claims against Uber as the employer of the drivers.

 

The case is Jane Doe 1, et al., v. Uber Technologies, INC., Case No. 15-cv-04670-SI, in the United States District Court Northern District of California.

Wisconsin Court of Appeals Affirms Dying Declaration Identifying Shooter

WI Dying DeclarationThe Wisconsin Court of Appeals affirmed a lower court’s admission of a dying declaration that identified the defendant in a homicide case and deemed the sentence appropriate.

Defendant Anthony Owens was identified as the shooter of a man who later died. In 2013, Owens was charged and found guilty of possession a firearm by a felon as a “repeater” and first-degree reckless homicide.

During the appeal, Owens argued the admission of a victim’s statement under the dying declaration hearsay exception was erroneous, evidence supporting his conviction was insufficient, and his sentence was unduly harsh.

Admission of Dying Declaration Was Proper

A dying declaration is a statement made by a party when death was imminent, concerning the cause or circumstances under the belief of impending death.

Pinkard, the deceased, while gasping for air and while in and out of consciousness, told an officer “Anthony” was the person who shot him. Counsel moved to admit this statement during trial, which was granted.

The appeals court believed this statement was properly admitted under the circumstances. Not only did Pinkard die from the gunshot, the rule only requires the party believe death was imminent.

Owens attempted to argue there were no facts to suggest Pinkard believed he would die. The court disagreed.

Evidence Sufficient for Jury

The court declined to reverse a conviction for lack of sufficient evidence unless the evidence was such that “no trier of fact, acting reasonably could have found guilt beyond a reasonable doubt.”

The victim’s cousin testified at trial about the circumstances of the shooting as well as identifying Owens holding and firing the weapon. Along with other testimony by the deceased family and other witnesses, the court believed there was sufficient evidence for the jury to reach an informed decision.

Sentence Fit the Crime

Owens received a total sentence of 39 years of initial confinement and 14 years of extended supervision. A sentence is unduly harsh only where the sentence is so excessive and unusual that it is disproportionate to the offense committed. On review of the sentencing record, if the court believes all factors were properly weighed, the sentence will remain.

Owens believed the sentences were harsh because no explanation was given about how the sentences would rehabilitate him. Although rehabilitation was considered, it was not required to consider specifics of the sentence and its potential outcomes.

Owens appeal was denied and the lower court’s judgment was affirmed.

 

This case is State of Wisconsin v. Anthony R. Owens, Case No 2015AP1118-CR, Wisconsin Court of Appeals District I

AZ Supreme Court Affirms Conviction Even Though Juror Switched Mid-Trial

AZ JurorThe Arizona Supreme Court ruled that switching a pro-defense juror in the middle of a sex-crime case did not prejudice the outcome.

Knute Kolmann filed for post-conviction relief after a juror was dismissed during jury deliberations for personal reasons.

Juror L.M. stated she was “not competent to judge anyone’s guilt or innocence.” The judge reaffirmed the juror’s concern and dismissed her without objection by either counsel.

Kolmann was on trial for sexual exploitation of a minor and conspiracy to commit sexual exploitation of a minor. He was sentenced to 155 years and the appeals court affirmed his conviction.

Kolmann had the burden of proving that the facts alleged would have changed his verdict.

Juror L.M., in a 2010 affidavit obtained by Kolmann, stated she truthfully wanted to be excused because she did not want to cause a hung jury and that she disagreed with fellow jurors.

On appeal, Kolmann argued ineffective assistance of trial counsel, ineffective assistance of appellate counsel, and juror misconduct. Kolmann ultimately believed had the juror remained there was a strong possibility of a hung jury at the end of trial.

Deficient Performance & Ineffective Assistance of Counsel

To establish deficient performance, a defendant must show that his counsel’s assistance was not reasonable under professional standards, “considering all the circumstances.”

For a favorable ruling, Kolmann had to overcome the presumption that counsel acted within a broad range of professional assistance; This required that counsel’s actions were a result of inexperience, lack of preparation, or other lack of professionalism.

Kolmann argued counsel erred by waiving his right to be present when the juror was excused. The court stated the right to be present during each stage of a trial is not absolute. Defense counsel or defendants may waive the right to be present.

The court found that Kolmann failed to show how the lawyer’s absence negatively impacted his case. This claim was dismissed for failure to state a colorable claim.

Independent Questioning Not Required

The defendant also believed counsel’s inexperience showed when he failed to independently question the juror.

The defendant argued further that the attorney’s lack of experience with the situation caused a failure to independently question the juror. This claim was dismissed because Kolmann did not provide any supporting facts or legal authority suggesting his counsel was unreasonable.

Deliberations Continued with Alternate

Under Arizona Rule of Civil Procedure 18.5(h) the trial judge has broad discretion to excuse a deliberating juror for an inability to perform required duties, and to request an alternate.

The same rule requires the trial court provide instructions to all jurors to start deliberations from the beginning to include the alternate juror.

The trial judge provided similar instructions but this occurred before the replacement was brought in.

Although the alternate did not have the benefit of hearing the full trial, existing jurors were to bring the alternate “up to speed.” Once the deliberations started again, the jury took only 70 minutes to reach a verdict.

This alone did not constitute ineffective counsel, nor did  the time frame of the jury deliberations.

All of Kolmann’s claims were denied and the court affirmed the lower courts decision.

This case is State or Arizona v. Knute Kolmann, Case No 15-0172-PR, Arizona Supreme Court.

Connecticut Court Allows Lawsuit Against Gun Makers for Sandy Hook Massacre

Twenty children and six adults tragically gunned down by an AR-15 automatic rifle on December 14, 2012.

Twenty children and six adults tragically gunned down by an AR-15 automatic rifle on December 14, 2012.

A Connecticut Superior Court has allowed a lawsuit filed by family members and a survivor of the Sandy Hook Elementary School mass shooting victims against several gun manufacturers and sellers to proceed despite the Protection of Lawful Commerce in Arms Act (PLCAA).

The Act, passed with heavy NRA backing in 2005, has been used as a legal shield to protect gun manufacturers from liability lawsuits for deaths, injuries, and public nuisances created by its weapons.

Nine families of the twenty-six people and children killed and one person injured by a Bushmaster AR-15 assault rifle used by Adam Lanza during the Sandy Hook shooting, filed a 33-count wrongful death complaint against several gun manufacturers and sellers.

Wrongful death

The complaint alleges that the gun makers know that civilians are unfit to operate AR-15, disregarding the risks created by civilian use of a weapon designed for “specialized, highly regulated institutions like the armed forces and law enforcement.”

The complaint claims that gun makers continued to sell the weapons for profit, even with the knowledge that civilian use creates an unreasonable and egregious risk such as the mass casualty event of the Sandy Hook Elementary massacre.

The families also alleged that gun manufacturers “unethically, oppressively, immorally, and unscrupulously marketed and promoted the assaultive qualities” to purchasers with the expectation and intent that purchasers would share or transfer the weapon to others, including family members

A survivor of the shooting in the lawsuit made a claim for her pain and suffering arising from the terror she experienced and injuries obtained during the shooting.  The victims also allege the gun makers knowingly violated the Connecticut Unfair Trade Practices (CUPTA)

Gun Makers claim immunity

Gun manufacturers filed a motion to dismiss for lack of subject matter jurisdiction on the grounds of their immunity by virtue of the Protection of Lawful Commerce in Arms Act (PLCAA), arguing that the wrongful death claims do not fall within the negligent entrustment exception under the Act and because the plaintiffs lacked standing to pursue CUPTA violation claims.

The victims asserted that the gun maker’s motion to dismiss concerned the legal sufficiency of the victim’s claims instead of the court’s jurisdiction, and should have been construed as a motion to strike.

The court agreed with the plaintiffs, writing that it would have been more appropriate to treat the motion to dismiss as a motion to strike because the gun makers focused solely on the legal sufficiency of the complaint in arguing.  The court, however, found it was neither practical nor desirable to consider the defendant’s motion as anything other than a motion to dismiss.

The court wrote that it would “confine its analysis to” whether the court has jurisdiction over the plaintiff’s claims, as appropriately within the scope of the gun maker’s motion to dismiss.

The court discussed that other federal courts have considered the PLCAA as a defense within a motion to dismiss that challenges the legal sufficiency of the pleading, not the court’s jurisdiction, but that in Connecticut, a motion to strike is the equivalent of a federal motion to dismiss.

The court wrote that a plaintiff’s failure to allege an essential fact under a statute goes to the legal sufficiency of the complaint, not the subject matter jurisdiction of the court.  The gun makers arguments concerning the availability of the PLCAA exception application to the plaintiff claims is an issue of legal sufficiency, and any immunity that could be provided to the gun makers under the PLCAA did not implicate the court’s jurisdiction.

The court denied the gun maker’s motion to dismiss because a claim that the court lacked jurisdiction could not be granted based on a claim of immunity under the PLCAA

Victim standing under CUPTA

The court also denied the gun makers motion to dismiss citing the victims did not have standing under CUPTA.  The gun makers argued that the victims lacked standing because they interpreted case law to require that a plaintiff’s interests under CUPTA be that of a consumer, competitor, or other businessperson.

The court again wrote that the issue of who has a protected interest under CUPTA is another legal interest and sufficiency issue, and does not affect the subject matter jurisdiction of the court.  The court wrote that it could not grant the motion to dismiss on the grounds of a challenge to the legal interest of the victims.

The ruling is a big win for gun control advocates as many gun manufacturers have been able to evade liability for the deaths firearms cause since the passage of the PLCAA.

“These companies assume no responsibility for marketing and selling a product to the general population who are not trained to use it nor even understand the power of it,” said William Sherlach to the Washington Post, whose wife Mary Joy was killed by Adam Lanza in the shooting.

Before the passage of the PLCAA, gun maker Bushmaster, a defendant in this class, was sued by two survivors and the families of six victims from the Washington sniper shootings in 2002.  They settled the case for $2.5 million.

The case is Donna L. Soto, et. al., v. Bushmaster Firearms International, LLC, et. al., case number FBT-CV-15-6048103-S in the Superior Court Judicial District of Fairfield at Bridgeport.

Miranda Warning Never Given, Yet Appeals Court Affirms Use of Incriminating Statements in Trial

no Miranda

The Wisconsin Court of Appeals affirmed a man’s burglary conviction that was based on incriminating statements he made to police without receiving a Miranda warning.

The court ruled that his confession was sufficiently attenuated from the arrest that occurred over a span of several minutes.

Police found Brian Harris in the basement of a vacant townhome. Officers handcuffed him and interrogated him while in the basement.  The officers testified that they engaged in “basic questioning” about who Harris was and why he was in the building.

After officers handcuffed and questioned Harris, they also looked around the basement and discovered copper piping on the ground along with blades, a bolt cutter, and crowbars in a duffle bag.

Moved from basement to police car

The officers walked Harris outside and placed him into the back of a squad car where an officer took his “mugshot.”  The officer then attempted to get in contact with the homeowner and was completing paperwork when Harris told him that he had been homeless for seven years and that he was going to sell the copper piping for money for food.

Harris was then brought to the Kenosha county jail where he made incriminating statements to a detective, who also failed to give Harris a Miranda warning.  The detective asked Harris if he would go with him for an interview, and testified that Harris responded “something to the effect that they caught me, what’s the point.”

Before trial, Harris filed a motion to suppress the statements, claiming his Fifth Amendment right against self-incrimination was violated when police failed to give him a Miranda warning.  The circuit court denied the suppression and allowed his comments to be used a trial.  A jury found Harris guilty of burglary, possession of burglary tools, criminal damage, and criminal trespass.  Harris appealed the conviction.

The Court of Appeals affirmed the conviction, agreeing with the circuit court’s denial of Harris’ motion to suppress because officers were not interrogating Harris at the time he made the incriminating comments.

The state conceded that the officer engaged in a custodial interrogation, which required a Miranda warning, in the basement of the townhome, but that the interrogation and unlawful conduct ended by the time they placed Harris in the police car.

The Court did not discuss the officer’s failure to issue a Miranda warning and avoided any review of the legal precedent all together by and interpreted the officer’s questions as “routine” and “more focused on  assessing whether Harris” had a legal right to be in the home, brushing over the fact that Harris was  Harris was “almost immediately” handcuffed.

Court addressed attenuation of inculpatory statements

The Appeals court instead assessed how attenuated Harris’ comments were from the police officers unlawful custodial interrogation, considering the “the temporal proximity of the official misconduct and the confession, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct.”

The court found that the temporal proximity of the interrogation and Harris’ statements “tip[] in Harris’s favor,” but that there was presence of intervening circumstances, such as moving Harris from the basement to the squad car, meaningful enough to sufficiently attenuate his statements from the illegal interrogation.

The court found further that the questions asked of Harris were routine in order to determine if he lived there, and that no promises or threats were made to induce Harris’s comments.  The court affirmed that Harris’s comments were attenuated enough to be “purged of the taint of illegality” of a un-mirandized interrogation.

The court also affirmed that Harris’s statements made to the detective were properly admitted at trial.  The court wrote that the detective was not required to give a Miranda warning for asking Harris if he would go with the detective to be interviewed, instead “Harris chose to communicate ‘no’ to [the detective] in a foolish manner…that provided the State with additional evidence to be used against him at trial.”

 

The case is State of Wisconsin V. Brian I. Harris, case number 2014AP1767-CR, in the Court of Appeals of Wisconsin.

America’s 2015 Marijuana Sales Higher Than Dasani, Oreos

marijuana sales chartAccording to Forbes, legal marijuana sales in the US reached a record high in 2015, hitting $3.4 billion in sales last year. Marijuana is legal in Alaska, Colorado, Oregon, Washington, and the District of Columbia.

Putting this into perspective:

  • Oreo cookies sales totaled $711 million between April 2014 and April 2015. Weed sales were five times higher than that.
  • Dasani brand bottled water recorded sales of $1.02 billion between May 2014 and 2015 but legal marijuana sales were still about three times higher last year.

In 2016, America’s legal marijuana sales are expected to be even higher, somewhere in the region of $3.5 billion to $4.3 billion.

Also read:

The New York Times Calls for Marijuana Legalization

The Case for Marijuana

Marijuana Legalization To Bring State Millions in Revenue, Advocates to Tell NJ Budget Committee

Marijuana Legalization To Bring State Millions in Revenue, Advocates to Tell NJ Budget Committee

NJ Marijuana reformMarijuana legalization and taxation could bring significant job growth and economic development

Leading advocates for the reform of marijuana laws will testify before the New Jersey Assembly Budget Committee today about the economic benefits that would result in our state from the legalization, regulation and taxation of marijuana for adults. Based on the success of legalization in four other states — Colorado, Washington, Oregon and Alaska — New Jersey could reap similar economic benefits if it adopted similar public policies.

Two members of the coalition New Jersey United for Marijuana Reform (NJUMR) with long, well-known records of public policy work in Trenton, Bill Caruso and Lynn Nowak, will attest to the additional revenue and economic activity New Jersey could generate from legalization, independent of the benefits to civil rights, civil liberties, public policy, public safety and law enforcement.

New Jersey United for Marijuana Reform is a partnership of public safety, medical, civil rights, faith, political and criminal justice reform organizations and individuals committed to changing New Jersey’s laws to legalize, tax, and regulate marijuana for adults. NJUMR believes its time to move away from our failed approach to marijuana, and build a safe, controlled and regulated system. It works to reform New Jersey’s marijuana laws because fairness and public safety demand nothing less. Learn more at www.njmarijuanareform.org.

For more info, contact: Allison Peltzman, ACLU-NJ Acting Communications Director, 973-854-1711.

Warrantless Police Search Upheld Under “Community Caretaker Function”

TPadlocked Doorhe Wisconsin Supreme Court held a warrantless search of a house, including a locked room with marijuana, was lawful and reasonable under the state’s “community caretaker function.”

Kenosha, WI police officers were called to the scene of a medical emergency in 2012. The officers arrived and found a highly intoxicated, badly injured man, Antony Matalonis.

He stated a group of people severely beat and injured him, evidenced by a bloody face and right side of his body.

Blood Trail

Looking for more information, the officers followed a blood soaked snow trail that lead to the home of defendant Charles Matalonis.

The officers testified there was a very significant amount of blood on the screen door and it seemed like “things being shuffled around in the house. . . and [they] were concerned someone might be injured.”

The officers knocked on the front door and Matalonis answered, the officers then observed more blood on the floor and near a staircase inside the home.

Matalonis told the officers he lived alone. When the officers questioned him about the blood leading to his home he stated it was only him and his brother Antony fighting but his brother was not there anymore.

The Search

Matalonis let the officers inside his home because they stated since there was blood they wanted to make sure no one else was injured inside.

The defendant was told to sit on his couch while the officers searched all areas of his home, including the basement. During one officers search he observed paraphernalia used for smoking marijuana.

An officer moved to other areas of the home where he came to a dead bolted door. The door has a small amount of blood on it. Matalonis stated the door was locked because he “kept his security equipment there.” The parties disputed how the officers obtained the key, but once the officer opened the door he found a marijuana plant growing.

There was only a brief discussion with Matalonis about the fight with his brother before  discovering the marijuana plant. Officers arrested Malalonis and subsequently tried to obtain a search warrant that was denied.

Evidence Admissible

The state court denied Matalonis’ motions to suppress evidence obtained during the search, on grounds that the officers were there to look for injured persons and only searched where blood was present.

Officers had to have an objectively reasonable basis to believe that a member fo the public was in need of assistance, the court said.  The appeals court concluded that based on the circumstances there was no mention of any other persons injured, and the mere possibility that another person may be injured was insufficient to meet the reasonable standard.

The state supreme court in explaining the community caretaker standard reiterated that the community caretaker was separate from other law enforcement duties.

An officer serving as a community caretaker to protect persons and property may be constitutionally permitted to perform warrantless searches and seizures.

The question was whether the officers conducted their search reasonably under the function. The court agreed they did because the public interest served by the entering the defendants home was substantial. The officers needed to ascertaining who the blood belonged to was an exigent circumstance.

The court further concluded that by the officers asking Matalonis for the key they were attempting to use less authority and force under the circumstances. As to the contents of the locked room, the officers did not have enough time to accept Matalonis’s responses at face value.

This case is the State of Wisconsin v. Matalonis, case no 2014AP108, Wisconsin Supreme Court.

Defense Counsel Sleeps at Trial, 11th Circuit Affirms Conviction

sleeping defense counsel 2The 11th Circuit Court of Appeals has affirmed a lower court decision that a man convicted of murder was not prejudiced when his defense attorney admittedly dozed off and fell asleep during the trial.

Anthony Williams, along with two other accomplices, burglarized a man’s home.  When the homeowner intercepted them, they shot and killed him.

During the trial, several witnesses testified, including a defendant accomplice, implicating Williams in the crime and linking him to the gun used to kill the homeowner.

William’s defense counsel questioned every witness and cross-examined prosecution witnesses about inconsistencies in their testimony.  He also repeatedly objected to witness testimony and was allowed to question a witness outside the presence of the jury.

When defense counsel cross-examined forensic experts and policed officers, he elicited their acknowledgement of inconsistencies and exculpatory information regarding their scientific practices.

Defense counsel falls asleep

While the prosecution played a recording of an accomplice’s interview that took up 71 pages of the trial transcript, defense counsel dozed off.  After the recording ended, defense counsel immediately crossed-examined the Sheriff Office agent recorded in the interview.  The prosecution then requested a break, to which defense counsel interjected “I need to take a break; I fell asleep a couple of times.”

The jury found Williams guilty of first-degree felony murder and armed burglary.  He was sentenced to life in prison.  With new counsel, Williams attempted several post-conviction filings based in part on a claim of ineffectiveness of trial counsel.  Both petitions were denied and Williams then filed in the district court for the same relief.

The district court denied William’s claim based on factual findings that “’[a]lthough defense counsel indicated that he fell asleep for a portion of the time period during which the taped statement was played,’ Williams failed to ‘point to any other instance of counsel sleeping during the trial.’” The court further wrote that defense counsel was alert during the trial, cross-examined witnesses, and properly responded to objections and questions.

Asleep during non-critical stage

Williams then appealed district court’s denial of his petition for a writ of habeas corpus.  The Court of Appeals determined that the state trial court and the district court properly applied federal law in concluding that Williams was not prejudiced by counsel falling asleep a few times during a non-critical stage of trial when the jury listened to a recorded interview.

The Appeals court reasoned that Williams made no argument in his brief about the lower court ruling that he failed to demonstrate prejudice and “issues not clearly raised in briefs are considered abandoned” they did not need to address whether Williams was prejudiced by his counsel.s trial nap.  The court affirmed the denial of William’s petition for writ of habeas corpus.

The case is Anthony Williams v. Florida Department of Corrections, case number 14-11351, in the U.S. Court of Appeals for the Eleventh Circuit.

Facebook Tagging in Enough to Violate Restraining Order, Says NY Judge

people v gonzalezA New York judge ruled that merely tagging or mentioning a person in a Facebook post constitutes communication, which is enough to violate a restraining order.

“Tagging” is identifying or referencing a person in photos, videos or posts on Facebook.

A disgruntled ex-wife used Facebook to tag her former sister-in-law in a comment. The plaintiff, Maria Gonzalez had obtained an order of protection against her sister-in-law. The order prohibited any contact by phone, email, in person or other forms of communication.

Who’s “Stupid” Now?

Gonzalez posted two comments tagging her former family member. The first simply said “Stupid,” and the second said “You and your family are sad :(… you guys have to come stronger than that!! I’m way over you guys but I guess not in ya agenda.”

Gonzalez moved to dismiss the charge because tagging was not specified as a communication in the protective order.

Justice Susan Capeci relied on a recent state high court option that also stated Facebook messages were equivalent to emails. Judge Capeci then denied the motion stating the order stated “electronic or other means.”

In this case generally someone receives a notification when they are tagged, the plaintiff verified receiving a notification for at least one post, constituting this a communication.

For violation of the protective order the defendant faces one year of jail time for the simple mention. This case among others shows how it is best to err on the side of caution when communicating via social media, you never know who may be affected.

This case is People v. Gonzalez, Westchester County Supreme Court, Case No. 15-6081M.