Case in Point
Fri, 22 May 2009 13:26:00
Sue Them in Your Own Country
Matar v. Dichter
Decided by: Second Circuit Federal Appeals Court, April 16
In July of 2002, Israel Defense Forces’ (IDF) aircraft targeted an alleged leader of the Palestinian organization Hamas as he worked on the top floor of a residential apartment building in Gaza City. The bomb the IDF used, which killed the Hamas official, ended up destroying much of the building and damaging surrounding structures. In the end, 14 civilians died and 150 others were injured in the controversial “al-Daraj bombing.”
Three years after the bombing, some of the injured survivors and relatives of the deceased filed a class-action lawsuit in Manhattan federal court against the former head of the Israeli security agency, Avraham Dichter, who supposedly ordered the attack. The plaintiffs sought money damages from Dichter under the Alien Tort Statute, which allows American courts to hear cases and award damages for violations of the “law of nations.” The district court threw the lawsuit out, finding that Dichter, as head of the security agency, was “an instrumentality of a foreign state” and, thus, immune for his decisions in office.
Last month, the federal appeals court upheld that decision using a more expansive rationale than the district court; indeed, the appeals court’s opinion shields all foreign officials from liability as long as the U.S. State Department supports such immunity. Although the district court had based its decision in the Foreign Sovereign Immunity Act (FSIA), a federal statute limiting the situations where immunity is to be applied to foreign officials, the appeals court relied on an older common-law principle where a judge will defer to the wishes of the State Department on immunity questions. Here, because the Bush Administration filed a brief urging immunity for Dichter, the State Department’s wishes should be honored.
The appeals court defended its decision on a theory of judicial restraint—not wanting to interpret the FSIA too broadly—but the decision resurrects a theory of judicial obeisance to the Executive Branch on immunity not seen for decades. If such deference continues, Manhattan’s federal courthouse will be off-limits for suits against foreign officials for many years to come.
Killing the Suicide Presumption
Infante v. Dingan and Green v. Penn Life Insurance
Decided by: Court of Appeals, May 4
Traditionally, New York law had a presumption against death by suicide—that is, where the cause of death is not readily identifiable as suicide, it was assumed that a person perished for other reasons. This rule most often surfaced in life-insurance disputes as most policies exclude payouts for suicide.
Earlier this month, concerned by the burgeoning use of the presumption by the lower courts, the Court of Appeals handed down two decisions, Infante v. Dingan and Green v. Penn Life, to temper the activism of the lower courts and narrow (and possibly eliminate) the presumption’s use.
In Infante, the father of the deceased sued the county medical examiner, who had declared the daughter’s death an intentional drug overdose, to revise her determination. The appellate court sided with the father and held that the medical examiner failed to incorporate the state’s presumption against suicide in her report. In Green, the deceased was found in bed with two empty pill bottles and an empty glass nearby. Given the circumstances, Penn Life Insurance Company refused to pay on the policy. Again, the appellate court found that suicide was not an appropriate conclusion because some evidence showed that Green may have died from natural causes.
The high court reversed both decisions as unwarranted expansions of the presumption against suicide. Finding that a legal principle has “no role to play” in a medical examiner’s work, Infante said the doctor should reach her conclusions on the basis of science alone. According to the court, so long as the examiner had a reasonable basis for her decision, her conclusions should not be clouded by non-scientific factors like legal presumptions.
Using similar language, the court in Green found the presumption should only be a “guide” for a jury in deciding whether someone committed suicide. The court said, “Where the evidence leaves open two possible findings, it is the jury’s business to resolve the doubt.”
Both results create uncertainty for the future of the presumption against suicide since its use now appears rarely, if ever, to be warranted.
Homing Devices Not Given a Home in New York
People v. Weaver
Decided by: Court of Appeals, May 12
For 65 days from December 2005 to February 2006, the New York State Police tracked every movement of Scott Weaver’s car. By placing a GPS-tracking device known as a “Q-ball” in his bumper (without a warrant), the police were able to get constant updates of Weaver’s location. Weaver was arrested and charged with two robberies, one in July 2005 and one during Christmas of 2005, when his van was being tracked.
At his trial, the prosecution introduced the tracking data to show Weaver’s car was in the parking lot of K-Mart on the night it was robbed. Weaver objected, arguing the GPS data was gathered in violation of his Fourth Amendment right to be secure from “unreasonable searches and seizures.” The trial judge ruled against Weaver, and he was convicted of the December robbery (and acquitted of the other July charge).
A sharply divided Court of Appeals overturned the conviction and tossed out the GPS evidence for infringing Weaver’s zone of constitutional privacy. In the 4-3 decision, Chief Judge Jonathan Lippman relied on the State Constitution, which he said offered “greater protections” than the Fourth Amendment. The Chief Justice wrote that GPS tracking of this sort was as likely to reveal criminal misdeeds as it was to show trips “to the psychiatrist … the abortion clinic … [or] the AIDS treatment center.” Because it could expose so many habits, hobbies and actions, installing the Q-ball without a warrant was “inconsistent with even the slightest reasonable expectation of privacy.”
Matar v. Dichter
Decided by: Second Circuit Federal Appeals Court, April 16
In July of 2002, Israel Defense Forces’ (IDF) aircraft targeted an alleged leader of the Palestinian organization Hamas as he worked on the top floor of a residential apartment building in Gaza City. The bomb the IDF used, which killed the Hamas official, ended up destroying much of the building and damaging surrounding structures. In the end, 14 civilians died and 150 others were injured in the controversial “al-Daraj bombing.”
Three years after the bombing, some of the injured survivors and relatives of the deceased filed a class-action lawsuit in Manhattan federal court against the former head of the Israeli security agency, Avraham Dichter, who supposedly ordered the attack. The plaintiffs sought money damages from Dichter under the Alien Tort Statute, which allows American courts to hear cases and award damages for violations of the “law of nations.” The district court threw the lawsuit out, finding that Dichter, as head of the security agency, was “an instrumentality of a foreign state” and, thus, immune for his decisions in office.
Last month, the federal appeals court upheld that decision using a more expansive rationale than the district court; indeed, the appeals court’s opinion shields all foreign officials from liability as long as the U.S. State Department supports such immunity. Although the district court had based its decision in the Foreign Sovereign Immunity Act (FSIA), a federal statute limiting the situations where immunity is to be applied to foreign officials, the appeals court relied on an older common-law principle where a judge will defer to the wishes of the State Department on immunity questions. Here, because the Bush Administration filed a brief urging immunity for Dichter, the State Department’s wishes should be honored.
The appeals court defended its decision on a theory of judicial restraint—not wanting to interpret the FSIA too broadly—but the decision resurrects a theory of judicial obeisance to the Executive Branch on immunity not seen for decades. If such deference continues, Manhattan’s federal courthouse will be off-limits for suits against foreign officials for many years to come.
Killing the Suicide Presumption
Infante v. Dingan and Green v. Penn Life Insurance
Decided by: Court of Appeals, May 4
Traditionally, New York law had a presumption against death by suicide—that is, where the cause of death is not readily identifiable as suicide, it was assumed that a person perished for other reasons. This rule most often surfaced in life-insurance disputes as most policies exclude payouts for suicide.
Earlier this month, concerned by the burgeoning use of the presumption by the lower courts, the Court of Appeals handed down two decisions, Infante v. Dingan and Green v. Penn Life, to temper the activism of the lower courts and narrow (and possibly eliminate) the presumption’s use.
In Infante, the father of the deceased sued the county medical examiner, who had declared the daughter’s death an intentional drug overdose, to revise her determination. The appellate court sided with the father and held that the medical examiner failed to incorporate the state’s presumption against suicide in her report. In Green, the deceased was found in bed with two empty pill bottles and an empty glass nearby. Given the circumstances, Penn Life Insurance Company refused to pay on the policy. Again, the appellate court found that suicide was not an appropriate conclusion because some evidence showed that Green may have died from natural causes.
The high court reversed both decisions as unwarranted expansions of the presumption against suicide. Finding that a legal principle has “no role to play” in a medical examiner’s work, Infante said the doctor should reach her conclusions on the basis of science alone. According to the court, so long as the examiner had a reasonable basis for her decision, her conclusions should not be clouded by non-scientific factors like legal presumptions.
Using similar language, the court in Green found the presumption should only be a “guide” for a jury in deciding whether someone committed suicide. The court said, “Where the evidence leaves open two possible findings, it is the jury’s business to resolve the doubt.”
Both results create uncertainty for the future of the presumption against suicide since its use now appears rarely, if ever, to be warranted.
Homing Devices Not Given a Home in New York
People v. Weaver
Decided by: Court of Appeals, May 12
For 65 days from December 2005 to February 2006, the New York State Police tracked every movement of Scott Weaver’s car. By placing a GPS-tracking device known as a “Q-ball” in his bumper (without a warrant), the police were able to get constant updates of Weaver’s location. Weaver was arrested and charged with two robberies, one in July 2005 and one during Christmas of 2005, when his van was being tracked.
At his trial, the prosecution introduced the tracking data to show Weaver’s car was in the parking lot of K-Mart on the night it was robbed. Weaver objected, arguing the GPS data was gathered in violation of his Fourth Amendment right to be secure from “unreasonable searches and seizures.” The trial judge ruled against Weaver, and he was convicted of the December robbery (and acquitted of the other July charge).
A sharply divided Court of Appeals overturned the conviction and tossed out the GPS evidence for infringing Weaver’s zone of constitutional privacy. In the 4-3 decision, Chief Judge Jonathan Lippman relied on the State Constitution, which he said offered “greater protections” than the Fourth Amendment. The Chief Justice wrote that GPS tracking of this sort was as likely to reveal criminal misdeeds as it was to show trips “to the psychiatrist … the abortion clinic … [or] the AIDS treatment center.” Because it could expose so many habits, hobbies and actions, installing the Q-ball without a warrant was “inconsistent with even the slightest reasonable expectation of privacy.”
