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BANKING No negligence claim if forgery discovery is late A customer may not make claims against a bank under Article 4 of the Uniform Commercial Code, enacted into Mississippi law, because she delayed detecting and notifying the bank of the forged checks, the Mississippi Supreme Court found on April 28 in an issue of first impression. Union Planters Bank v. Rogers, No. 2003-CA-02221-SCT. Neal and Helen Rogers, a couple in their 80s, hired Jackie Reese to help take care of Neal when he became bedridden. From September 2000 to August 2001, Reese forged Helen’s signature on checks from four accounts the Rogers had at Union Planters Bank. Following Rogers’ death in May 2001, Helen and her son, Neal Jr., discovered the forgeries. Helen Rogers sued Union Planters for conversion and negligence. The jury awarded her $29,595 in damages. The Mississippi Supreme Court reversed. Miss. Code Ann. � 75-4-406(a) and (c) provide that a customer has a duty to discover and report “unauthorized signatures.” Miss. Code Ann. � 75-4-406(d) places on a customer the duty to report forgeries within a reasonable period of time not to exceed 30 days. Union Planters sent Rogers bank statements containing either canceled checks or copies of checks every month. Though Rogers claimed that she never received these statements, she did not notify the bank until June 2001 to replace the missing documents and did not discover the forgeries until September 2001. The court concluded that Rogers had failed to notify the bank of the forgeries within 30 days from the date she should have reasonably discovered them. Full text of the decision CIVIL RIGHTS Shooting man to prevent suicide is excessive force A police officer violated a man’s Fourth Amendment rights when he shot him in the head with a Sage Launcher in an effort to prevent the man from committing suicide, the 11th U.S. Circuit Court of Appeals held on April 29. Mercado v. City of Orlando, No. 04-13477. Ramon Mercado threatened to commit suicide after his wife, Ibis, told him she wanted to end the marriage. He wrapped a telephone cord around his neck and attached the other end to a ceiling vent and pointed a kitchen knife to his heart. Orlando Police Department officers entered the apartment and, finding Mercado sitting on the kitchen floor holding a knife in both hands pointed to his heart, ordered him to drop the knife. Officer Ramfis Padilla then fired a Sage SL6 Launcher at Mercado, fracturing his skull and causing brain injuries. The Sage Launcher fires a polyurethane baton, and was designed to be used to protect persons from self-inflicted injury, especially when using a night stick or baton would be unsafe or impractical. Mercado now suffers from a host of ailments including headaches, loss of memory, loss of balance, insomnia, dizziness, stuttering and loss of sensation. Mercado sued Padilla, alleging violations of the Fourth, Fifth, Sixth, Eighth and 14th amendments. A Florida federal court granted the defendant’s motion for summary judgment, ruling that he did not use excessive force and that he enjoyed qualified immunity. Mercado appealed the court’s Fourth Amendment ruling-the right to be free from excessive force. The 11th Circuit reversed and remanded, finding that Padilla had used excessive force in shooting Mercado in the head because Mercado was not committing a crime, resisting arrest or posing an immediate threat to officers at the time he was shot. Since Padilla violated Mercado’s Fourth Amendment rights, he could not enjoy qualified immunity. Full text of the decision CRIMINAL PRACTICE Witnesses’ viewing of defendant didn’t taint I.D. Allowing eyewitnesses to observe the defendant in two scheduled but canceled preliminary hearings before positively identifying him was not unduly suggestive and did not violate the defendant’s due process rights, a divided 6th U.S. Circuit Court of Appeals ruled on April 28. Howard v. Bouchard, No. 03-1850. Frank Howard was charged with killing one of four men who were lawfully repossessing Howard’s girlfriend’s car in Detroit. One of the other men was the victim’s brother. He gave a brief, physical description of the shooter two months after the incident. Two preliminary hearings were called. Howard was present at both, as was the brother, before the hearings were eventually canceled. At a subsequent lineup, the brother identified Howard as the shooter, noting Howard’s distinctive haircut, which the brother had not mentioned in the description he gave to police. Howard was convicted of second-degree murder, and his conviction was upheld on appeal. In a subsequent habeas petition, Howard challenged the propriety of the lineups. A Michigan district court denied habeas relief. The 6th Circuit affirmed, ruling that the lineup was only minimally suggestive, as the brother got only a brief glimpse of Howard as he was led into the courtroom. Furthermore, because the brother had a chance to observe Howard during the shooting incident-enough to provide some sort of physical description-there were additional indicia of reliability for the later identification. Full text of the decision Counselor’s urinating is no sexual misconduct An elementary school counselor’s exposure of his genitals while urinating is not enough to support conviction on multiple counts of sexual misconduct, the Missouri Supreme Court ruled on April 26. State v. Beine, No. SC86190. On one occasion, James Beine entered a public bathroom at an elementary school and began using a urinal next to two boys. The boys said Beine stood three to four feet away and that they could see Beine’s “private part.” On another occasion, while again using a urinal, Beine turned to silence some rowdy boys, and a student reported seeing his pants unzipped when he turned, thereby exposing his penis. Beine was convicted on four counts of sexual misconduct. The Missouri Supreme Court reversed, finding that the statute under which Beine was convicted to be overly broad and thus unconstitutional. The statute prohibits knowing exposure of one’s genitals, yet a man using a public restroom must knowingly expose himself. The court also held that there was no evidence that Beine’s conduct would be likely to cause affront or alarm to a child younger than 14. Full text of the decision EVIDENCE Nonparty can be ordered to provide DNA sample There was no error in a trial court’s order to a nonparty in a criminal case to provide a DNA sample, the Massachusetts Supreme Judicial Court held on April 25. In re Jansen, No. SJC-09430. Richard Lampron, a criminal defendant in an aggravated rape case, sought a court order requiring William Jansen, a nonparty, to provide a DNA sample. Lampron claimed that such a sample would provide exculpatory evidence. Over Jansen’s objection, a trial court ordered Jansen to provide the sample, and Jansen appealed. Affirming and rejecting Jansen’s argument that the taking of his DNA violated the Fourth Amendment, the Massachusetts Supreme Judicial Court held that the order-made at the request of a private party-was not a government action. The court said, “Here, there simply has been no governmental involvement in the procurement of Jansen’s DNA by Lampron. Quite to the contrary, the Commonwealth has advocated vigorously against Lampron’s efforts to obtain a buccal swab from Jansen. Lampron is not seeking Jansen’s DNA at the behest of the Commonwealth in order to advance a criminal prosecution. Rather, Lampron, acting in a private capacity, is furthering his own ends by attempting to secure all favorable proofs in advance of trial which . . . will significantly aid in the preparation of his defense by demonstrating a lack of physical evidence to support the charges against him.” Full text of the decision No privilege for county on peer-review records Federal law recognized no privilege for a county over records of a medical peer review of a prisoner’s death in county custody, the 9th U.S. Circuit Court of Appeals held on April 28. Agster v. Maricopa County, No. 04-15466. Charles Agster III died while he was a prisoner in the custody of the Maricopa County Sheriff’s Office. Agster’s family sued the county and others, and demanded that the county produce a mortality peer review conducted by the contractor employing the jail’s medical personnel. The county argued that the peer review was privileged. An Arizona trial court overruled the county’s privilege. Affirming, the 9th Circuit held that federal law recognized no privilege in the peer-review records. Differentiating between peer reviews at regular hospitals as against peer reviews in prisons, the court said, “Whereas in the ordinary hospital it may be that the first object of all involved in patient case is the welfare of the patient, in the prison context the safety and efficiency of the prison may operate as goals affecting the care offered. In these circumstances, it is peculiarly important that the public have access to the assessment by peers of the care provided.” Full text of the decision FAMILY LAW Child’s best interest has lower evidence standard The burden of proof necessary to establish a statutory ground for terminating a parent’s rights is different from the burden necessary to find that termination is in the child’s best interest, the Arizona Supreme Court ruled on April 29. Kent K. v. Bobby M., No. CV-04-0209-PR. The grandparents of a baby born to two teenagers became the child’s legal guardians, and eventually moved to terminate the father’s parental rights. The trial court found that the grandparents had provided clear and convincing evidence that the father had abandoned the baby-a statutory ground for termination. However, the trial court found that the grandparents did not provide clear and convincing evidence that termination was in the child’s best interest. The intermediate appeals court affirmed. The Arizona Supreme Court reversed, noting that the proper standard of proof for a finding on the child’s best interest is the lower, preponderance of the evidence standard. Since the best-interest determination comes after a parent has already been found to be unfit, the risk of an improper termination is not as great. Also, because the child’s interest in having a stable home is equal to the parent’s interest in maintaining a relationship, the burden of proof is not as great. Full text of the decision MEDIA LAW Publishing rape suspect’s name is no rights breach A Pennsylvania newspaper cannot be held liable for the publication of a juvenile rape suspect’s name, obtained through lawful means, the 3d U.S. Circuit Court of Appeals ruled on April 26. Bowley v. City of Uniontown Police Dept., No. 04-2352. The Uniontown Herald Standard published 15-year-old James Bowley’s name in an article about the juvenile’s arrest on charges that he raped a 7-year-old girl. The newspaper got Bowley’s name from a city police officer. Bowley sued the paper, claiming that it had violated a state law that prohibits the disclosure of juvenile law enforcement records, which resulted in both a breach of confidentiality and an invasion of privacy. Bowley made the same allegations against the city and the police department, and added a federal civil rights claim. A Pennsylvania district court granted the newspaper’s motion to dismiss, and Bowley settled with the city and the police department. The 3d Circuit affirmed. The First Amendment shields the paper from liability in this case. The information was truthful, and lawfully obtained even if the police officer violated state law by releasing Bowley’s name, because the relevant statute prohibits the disclosure of juvenile records, not the receipt of them. The information was a matter of public significance because it involved the rape of a minor. Furthermore, imposing liability on the paper is not the most narrowly tailored way to serve the state interest of protecting the anonymity of juvenile offenders. Liability belongs to the police department for wrongly disclosing the information in the first place. Full text of the decision TORTS Woman hurt by object in food can sue restaurant A restaurant patron who was injured by an unidentified object in her food can move forward with her claim against the restaurant, the Minnesota Supreme Court ruled on April 28. Schafer v. JLC Food Systems Inc., No. A03-779. While eating a pumpkin muffin at a Perkins Restaurant in St. Cloud, Minn., Karen Schafer felt a “sharp pain” in her throat and experienced a “choking sensation.” She went to a hospital emergency room where a doctor informed her that she had a cut on her throat, though there did not seem to be any object that could have caused the cut. The doctor prescribed painkillers and released her. Two days later, Schafer returned to the emergency room and was diagnosed with a throat infection. She was hospitalized for three days. Schafer sued Perkins for negligence. The trial court granted the defendant’s motion for summary judgment. The court of appeals affirmed. The Minnesota Supreme Court reversed and remanded. In a defective food products case, circumstantial evidence may be used when the object causing the injury cannot be identified. The reasonable expectation test holds a food seller liable for an injury-causing object in a food product if the object would not be reasonably expected by an ordinary consumer. Accordingly, the court determined that a jury could reasonably infer that the injury in this case was of a kind that could only occur as a result of the defective condition in the muffin.

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