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$337,000 Settlement Headed To Elementary School Students Handcuffed By School Resource Officers (Legal Issues)

by Tim Cushing

from the insurance-premium-increases-will-also-be-paid-for-by-taxpayers dept on Monday, November 19th, 2018 @ 7:40PM

Putting cops in schools often turns routine disciplinary issues into police matters. That's a problem. Cops -- given the friendly-spin title of "school resource officers" -- have a limited tool set for handling discipline. It involves shows of authority, deployments of force, and, in this case, adult handcuffs clamped onto an 8-year-old's upper arms. Tiny wrists can't be secured by adult cuffs, so up the arm they go until they more resemble an instrument of torture than a restraint device.

This cuffing was performed by Deputy Kevin Sumner of the Kenton County (KY) Sheriff's Department. The Sheriff's Department claimed the deputy followed policy, but could not produce any policy relevant to the handcuffing of small children. Experts on force/restraint deployment said this cuffing didn't follow any protocol they were aware of. Sheriff Korzenborn insisted (without any evidence) this technique was proper and testified he did not order retraining of officers in child-restraint techniques following the incident.

Last year, a federal court declared this handcuffing to be excessive force. It pointed out the alleged "crime" did not justify the force deployed and, even if it had, the force used was far in excess of what was needed.

Applying the Graham factors, the severity of the “crime” committed by S.R. and L.G. — assault — weighs in their favor. While S.R. kicked a teacher and L.G. tried to and/or did hit a teacher, these are very young children, and their conduct does not call to mind the type of “assault” which would warrant criminal prosecution. Indeed, Sumner testified that “none of what they did was worthy of trying to file a criminal charge.”

The second factor, whether the children posed an immediate threat to themselves or others, weighs in S.R.’s favor. At the time he was handcuffed, S.R. had largely calmed down, Sumner had escorted him to the restroom without incident, and they had returned to the office. While Sumner testified that S.R. swung his elbow towards Sumner, such can hardly be considered a serious physical threat from an unarmed, 54-pound eight-year-old child.

A little over a year later, the two elementary school students will be receiving a payout from Kenton County taxpayers.

On Thursday, a sheriff’s office in Kentucky has agreed to pay more than $337,000 for the painful and unconstitutional handcuffing of elementary school students with disabilities. The two plaintiffs, both of whom were children of color and both of whom have disabilities, were so small that the deputy sheriff locked the handcuffs around the children’s biceps, forcing their hands behind their backs.

Despite the ruling and the settlement agreement, Sheriff Chuck Korzenborn remains unrepentant. He views this settlement as a cowardly capitulation by the company fronting the money for his deputy's misconduct.

In a statement released Nov. 5, Kenton County Sheriff Chuck Korzenborn said he "never signed off or agreed to settle."

"My understanding is that the insurance company viewed that it was less expensive to settle the case than to continue defending it," he said.

Korzenborn also noted that the settlement came without "any admission of liability" on behalf of the sheriff's office.

Handcuffing children and causing this sort of reaction is just good school policing, according to the sheriff.

After the handcuffings, both children had repeated nightmares, started bed-wetting, and would not let their mothers out of their sight. Both families left the school district, and moved to areas where their children could receive the treatment and accommodations they needed.

This is what the sheriff considers to be a worthwhile punishment for an 8-year-old student who tried to punch his deputy in the arm: a painful, unconstitutional handcuffing followed by a few years of nightmares and family upheaval. It will happen again because Korzenborn believes he -- not the law, not policies, and not the federal court -- is right. He's a law unto himself, and that makes things dangerous for students in the county's schools. And he's a walking advertisement for personal indemnification.


Red Bull Fails To Block Trademark Registration In EU Over Logos That Aren't All That Similar (Trademark)

by Timothy Geigner

from the locking-horns dept on Monday, November 19th, 2018 @ 3:34PM

While it is by no means the most litigious beverage company ever, Red Bull is not a complete stranger to trademark bullying. The last we heard from the iconic energy drink company, it was making legal arguments over bovines and their castrated status somehow rising to the level of trademark infringement. It seems that Red Bull typically likes to do its bullying during the trademark application status rather than in legal proceedings, but the universe is currently running an experiment to see just how hard and fast a rule this is for the company.

That experiment takes the form of Red Bull attempting, and failing, to oppose the trademark registration for a beverage company called "Big Horn" over the following logos.

Now, the link above is from a site dedicated to "brand protection", so all of the language in the post is of the variety that thinks Red Bull was totally right and the decision against the opposition was wrong. But, come on, how much public confusion is there really going to be over those logos? To be fair to that original post, it points out that Big Horn uses this logo on beverage cans that do call back to Red Bull's, but Red Bull didn't make that argument in its opposition. Instead, it simply argued that the logos were too similar. They're not, even when you try to parse things out with language such as:

Red Bull based its opposition on the registration of the two bulls logo, i.e. without the word Red Bull. If you compare this with the Big Horn logo they are quite similar, given that both depict two animals leaping towards each other with a yellow ball in the background.

"Yellow ball." That's the sun, actually. In the case of the Big Horn logo, it's the sun rising over mountains, which aren't present in Red Bull's logo. And the animals in question are different. As are the color schemes. Not to mention that Big Horn has their big name pasted in big letters over the logo. It makes perfect sense that EUIPO thought that Big Horn had enough of a case if this ever goes to a trademark lawsuit to defend itself, no matter how many citations of EUIPO making the opposite and wrong decision on Red Bull oppositions the original post can make.

So, we'll wait and see if Red Bull actually wants to take this trial. If that happens, I would think that demonstrating real or potential public confusion would be pretty difficult.


Police Misconduct, Data Breaches, And The Ongoing Lack Of Accountability That Allows These To Continue (Legal Issues)

by Tim Cushing

from the bad-cops-and-bad-corps dept on Monday, November 19th, 2018 @ 1:32PM

Data breaches occur daily, affecting thousands of people. And everyone shrugs and moves on with their lives, especially those running the affected companies. Why? Because nothing ever happens to companies which have carelessly exposed data, as Cory Doctorow points out:

Data breaches keep happening, they keep getting worse, and yet companies keep collecting our data in ever-more-invasive ways, subjecting it to ever-longer retention, and systematically underinvesting in security.

Why does this keep happening? Because it's affordable. In 2014, Home Depot breached more than 50,000,000 credit-cards; in 2016, they paid less than $0.34/customer in restitution.

There are longer-term reputational costs associated with breaches, but these are not generally factored into the quarterly-earnings-focused mindsets of corporate execs and strategists.

Two of the most damaging breaches in recent years involved millions of people who were given little or no choice in how much personal data of theirs was held by these entities. One was the Office of Personnel Management. Those seeking government jobs turn over a lot of info to the government, which then handles it carelessly.

The other -- Equifax -- was even worse, at least in terms of consent. There was none. No one voluntarily hands information to Equifax. It's gathered by Equifax which sells access to any number of companies seeking credit records. No one opts in and, more importantly, there's no way to opt out.

No one can hold these entities accountable, at least not to the extent it will deter future breaches. Because of that, the only thing we're guaranteed is more breaches. These companies and agencies will continue to exist, hoovering up even more personal data, and, eventually, leave it exposed where criminals can make the most of other people's finances.

From one wheelhouse to another, the same can be said for law enforcement agencies and police misconduct. In almost every case, a police officer sued for rights violations pays nothing for the wrongs committed. Neither does the agency employing the officer. This is from a study of police indemnification published by the New York University Law Review:

During the study period, governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement. Law enforcement officers in my study never satisfied a punitive damages award entered against them and almost never contributed anything to settlements or judgments—even when indemnification was prohibited by law or policy, and even when officers were disciplined, terminated, or prosecuted for their conduct.

Officers are never made to personally feel the pain of a settlement. The officer often returns to work with only the minor black mark of a lost lawsuit on their record. Consequently, the violations continue because officers have nothing at stake. If they screw up, another government entity picks up the tab using taxpayer dollars.

The solution to this problem isn't as readily apparent as it might seem. Personal indemnification -- forcing officers to be held personally responsible for settlements stemming from rights violations -- seems like a good deterrent, but it has its downsides. Scott Greenfield has examined the issue and the flaws are right below the satisfying gloss covering the surface.

Often, the argument is that the solution to police violence is to make the cop personally liable for his conduct, shift the incentive system from the municipality, or more accurately its taxpayers, to the bad dude who did the dirty. Make him suffer.

The problem is that the cop may be judgment proof. If the cop has no wealth or assets, there is no fund from which to collect a judgment. You can’t get blood from a rock.

While this may be an effective deterrent, it doesn't do anything to make the plaintiff whole. Having a city cover the cost ensures the victim will be paid, but it lets the officer off the hook.

What's the solution? Perhaps it's a sharing of the burden. Officers could be made to carry their own litigation insurance. This would eliminate the free pass of outside indemnification by making every act of misconduct count. Get sued often enough and the insurance company will drop the officer. An officer without insurance is pretty much unemployable.

It's also a win for officers, who would no longer gripe about cities settling too easily with plaintiffs and other besmirching the barrel of apples by proxy. Sure, they won't be nearly as vocal about it when their own insurance coverage is on the line, but it will put their own insurance premiums where their mouths are, which would be small victory in and of itself.

Circling back outside to the original wheelhouse, what can be done to make companies actually care about data breaches? So far, nothing seems to be slowing the flow of carelessly exposed data. Doctorow has a suggestion, and it runs along the lines of the solution that (might!) work for law enforcement:

If companies were paying out damages commensurate with the social costs their data recklessness imposes on the rest of us, it would have a very clarifying effect on their behavior -- insurers would get involved, refusing to write E&O policies for board members without massive premium hikes, etc. A little would go a long way, here.

There are no perfect solutions. But we simply shouldn't settle for the status quo. Neither group will welcome increased accountability, but there's simply no reason we should continue to let them skate, either.


Prosecutors Charge Suspect With Evidence Tampering After A Seized iPhone Is Wiped Remotely ((Mis)Uses of Technology)

by Tim Cushing

from the lots-of-missing-info-here dept on Monday, November 19th, 2018 @ 12:07PM

Going on little more than their belief a phone may contain evidence in a drive-by shooting case, prosecutors in Schenectady, New York are charging a suspect with destroying evidence.

A cellphone seized by police as part of an investigation into a drive-by shooting last month was remotely wiped by its owner, authorities said this week.

Police believe Juelle L. Grant, 24, of Willow Avenue, may have been the driver of a vehicle involved in an Oct. 23 drive-by shooting on Van Vranken Avenue, near Lang Street, so they obtained her phone, according to police allegations filed in court. No one was injured in the shooting.

After police took her iPhone X, telling her it was considered evidence, "she did remotely wipe" the device, according to police.

"The defendant was aware of the intentions of the police department at the conclusion of the interview with her," according to court documents.

Grant now faces three felonies: two counts of evidence tampering and one count of hindering prosecution. One count of evidence tampering related to the alleged phone wipe. The other two counts listed are related to concealing the shooter's identity and disposing of the weapon used.

Grant purchased a new iPhone some time after her other one was seized. It could be her logon from a new device erased files on her old one, but that seems unlikely and the dates don't really line up. Her lawyer says she got a new phone "days after" the cops took her first one, but the documents alleging evidence tampering says it happened less than 24 hours after the alleged drive-by. Supposedly, Grant isn't a "computer-savvy person," according to her attorney, but it's not all that tough to do even for someone with limited tech skill

The easiest method for remote wiping would be using Apple's "Find My iPhone" feature, which has "Erase iPhone" right on the landing page. This seems to be the likeliest explanation for what happened, although it may be Grant herself did not trigger the remote wipe.

And there are unanswered questions about law enforcement's handling of the seized iPhone. Have they not heard of Faraday cages/bags? That exact question was posed to law enforcement by The Daily Gazette. The first answer was a deflection:

Asked last Wednesday evening if such technology was available to city detectives, police spokesman Sgt. Matthew Dearing said he did not know but would check with detectives. He indicated late Thursday afternoon that he had yet to hear back from them.

One week later, there's still no answer.

A message Monday morning asking Dearing if he had yet heard back from detectives was not immediately returned.

Finally, there's another question that needs to be answered by law enforcement as it moves forward with these charges: how likely is it that there's evidence of a drive-by shooting on a person's phone? That probability -- an essential part of "probable cause" -- seems a little low. Sure, cops might have found a judge willing to believe a person's phone is just something that collects evidence of any and all criminal activity until law enforcement needs it, but there's always a chance the judge might actually demand justification for searching a phone seized from a drive-by shooting driver.

With the alleged "evidence" now allegedly maliciously deleted, law enforcement might be off the probable cause hook. But it shouldn't be. It should have to justify its original search plans before it can move forward with evidence tampering charges. From what's been presented in this coverage, it doesn't appear law enforcement has a solid basis for the search it never got to perform.


Cord Cutting Sets More Records, Yet Many Cable Giants Still Refuse To Compete On Price (Failures)

by Karl Bode

from the adapt-or-perish dept on Monday, November 19th, 2018 @ 10:40AM

Despite the obvious realities that ratings are sharply down and consumers are cutting the cord, there's a vibrant and loyal segment of cable and broadcast executives and analysts who still somehow believe cord cutting is a myth. Every few months, you'll see a report about how cord cutting is either nonexistent or overstated. Often, they'll try to claim that cord cutters are just lame weirdos they didn't want anyway, or that this is just a temporary trend that stops once more Millennials procreate.

Newsflash: it's not stopping.

The latest data from Kagan indicates traditional pay TV providers lost another 1.3 million subscribers last quarter as users continued to flock to streaming alternatives, embrace the use of over the air antennas, or embrace piracy (something analysts traditionally never mention, as if acknowledging this fact somehow condones it). A big part of this latest surge in losses were courtesy of Dish Network, which saw a record 367,000 departures as its satellite TV customers flocked to greener and cheaper pastures, including Dish's cheaper Sling TV alternative.

Industry analyst Craig Moffett, who used to be among those who mocked cord cutters as irrelevant, has dramatically changed his tune over the last few years. He continues to point out that these numbers are actually worse than they appear, since new homeowners and movers aren't signing up for traditional cable at their new addresses:

"It is the largest quarterly loss ever (the first time the industry lost over 1 million subscribers in a quarter),” writes Craig Moffett, senior research analyst, MoffettNathanson.

“With traditional pay TV penetration still hovering close to 80%, one would have expected growth of about 200,000 more subscribers per quarter on average than a year ago, based solely on the new household formations,” writes Moffett. "To the extent we are not seeing these new households in the subscriber data, we can conclude that cord-cutting has accelerated more than it appears, based on the reported subscribership data alone."

Obviously an 80% penetration rate for traditional cable is nothing to sneeze at.

But while traditional cable TV is still the preferred viewing option du jour, it's equally obvious that the industry needs to adapt sooner rather than later. Many of these customers are older viewers scared by new technology who won't be around for ever. Many others are sports fans, who still struggle to find streaming alternatives to cable given many broadcasters' painfully slow adaptation to this new paradigm, something exemplified by the aggressively terrible losses seen by ESPN in recent years. But leagues like the NFL are very slowly but surely figuring out that direct to consumer streaming is the future.

And while a few companies like Dish and AT&T have figured out that they have no choice in offering cheaper, more flexible viewing options (Sling TV and DirecTV Now respectively), much of the sector remains stuck in a dance of dysfunction that includes refusing to compete on price. Whether it's Charter's decision to mindlessly raise rates on the heels of its latest merger, or Comcast using bullshit fees to covertly jack up your monthly rate, there's a cavalcade of industry executives who haven't received one obvious message: the traditional cable cash cow is dying, and price competition and better, more flexible offerings are the only path forward.


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