February 2018 Legal Report

Strategic Security

​​Photo by Igor Ovsyannykov​

February 2018 Legal Report
 

​Judicial Decisions

EXCESSIVE FORCE. A jury must decide whether a police officer used excessive force when he tased a man for nearly two minutes, a U.S. court of appeals said in a ruling that revived the plaintiff's suit.

In 2010, Las Vegas Metropolitan Police Department Officer Mark Hatten pulled Anthony Jones over for a routine traffic stop. Hatten told Jones to get out of the car, so he could pat Jones down for weapons.

Jones initially obeyed the command, but then started to turn towards Hatten. Hatten, who said in court documents he was afraid of Jones, drew his firearm, pointed it at Jones, and ordered him to turn back around. Jones then ran away.

Hatten called for backup and chased Jones, who was not armed. He then used his Taser to subdue Jones, firing it twice and causing Jones's body to "lock up" and fall to the ground. Hatten then kneeled on Jones's back in an attempt to handcuff him while he pressed his Taser to Jones's thigh and continued to pull the trigger.

Hatten kept tasing Jones, even after four other officers arrived. Jones was tased for a total of 90 seconds, and for 10 of those seconds another police officer tased him while Hatten continued to use his Taser.

The officers then stopped tasing Jones, whose body went limp and became nonresponsive. They were unable to resuscitate him, and Jones died. The coroner's report later found that "police restraining procedures" contributed to his death, according to court documents.

Jones's parents filed suit against the police department and the officers involved, alleging they violated his Fourth and Fourteenth Amendment rights along with other state laws. The district court, however, dismissed the suit because it said Jones's parents had incorrectly listed his estate—not the administrator of the estate—as a plaintiff.

Because of this, the district court said Jones's parents had failed to "assert their Fourth Amendment claims as executor or administrator of Jones's estate," which is required under Nevada law. The district court did not allow Jones's parents to correct the mistake, but also dismissed the case on grounds of qualified immunity.

Jones's parents appealed the ruling, which reached the U.S. Ninth Circuit Court of Appeals. The appellate court found that the district court should have given Jones's parents a "reasonable opportunity to cure their error" and list the correct parties as plaintiffs.

The appellate court also found that the case could not have been dismissed on grounds of qualified immunity. The court said that the officers' use of force "began appropriately" with Hatten concluding that he should use his taser to subdue Jones because he had not threatened Hatten, committed a serious offense, or appeared to have a weapon.

However, the court found that as the situation evolved and the officers continued to tase Jones, their justification for use of force waned.

"There is a triable issue of fact as to whether the officers were reasonable in the degree of force they deployed at that point," the appellate court said. "Evidence presented at summary judgement would support a jury finding that the officers' repeated and simultaneous use of tasers for over 90 seconds was unreasonable."

Based on these findings, the appellate court reversed the district court's ruling in part and remanded the case for a trial by jury to determine whether excessive force was used. (Jones v. Las Vegas Metropolitan Police Department, U.S. Court of Appeals for the Ninth Circuit, No. 14-17388, 2017)

CORRUPTION. The U.S. Department of Justice (DOJ) unsealed charges against five individuals for their alleged roles in a bribery scheme perpetrated against Rolls-Royce and its subsidiaries. Four of the five charged later pleaded guilty.

DOJ charged Petros Contoguris, 70, with one count of conspiracy to violate the Foreign Corrupt Practices Act (FCPA), one count of conspiracy to launder money, seven counts of violating the FCPA, and 10 counts of money laundering. James Finley, 66, pleaded guilty to a count of conspiracy to violate the FCPA and a count of violating the FCPA. Aloysius Johannes Jozef Zuurhout, 53; Andreas Kohler, 53; and Keith Barnett, 48; all pleaded guilty to one count of conspiracy to violate the FCPA.

"The charges announced today against executives, employees, and third parties affiliated with Rolls-Royce, are another example of the Criminal Division's commitment to holding individuals—and not just corporations—accountable for violating the FCPA," said Acting Assistant Attorney General Kenneth A. Blanco in a statement.

According to the DOJ, the five men allegedly conspired to pay bribes to foreign officials in exchange for directing business to Rolls-Royce Energy Systems Inc.—a U.S.-based indirect subsidiary of Rolls-Royce plc.

"The indictment alleges that Contoguris, working with employees of an international engineering consulting firm (Technical Advisor), including Kohler, devised a scheme with Rolls-Royce executives and employees, including Zuurhout, Barnett, and Finley, whereby Rolls-Royce would pay kickbacks to the Technical Advisor employees and bribes to at least one foreign official, and disguise these payments as commissions to Contoguris's company, Gravitas, in exchange for helping Rolls-Royce win contracts with Asia Gas Pipeline LLP," the DOJ said in a press release.

After AGP won contracts with Rolls-Royce, worth approximately $145 million, Rolls-Royce allegedly made commission payments to Gravitas, which Contoguris then passed on to Technical Advisor employees with the knowledge that it would be shared with a foreign official.

Rolls-Royce later entered a deferred prosecution agreement with the DOJ, incurring an $800 million penalty global resolution with the DOJ, the United Kingdom, and Brazilian authorities.

Contoguris had not entered a plea as of press time, and was believed to be outside of the United States. (U.S. v. Contoguris, U.S. District Court for the Southern District of Ohio Eastern Division, No. 2:17-cr-00233, 2017)​

Legislation

CYBERCRIME. U.S. President Donald Trump signed legislation into law that creates an institute to train local law enforcement and other partners to investigate and prevent cybercrime.

The law (P.L. 115-76) authorizes a National Computer Forensics Institute within the U.S. Secret Service through 2022 to share information related to investigations and prevention of cyber and electronic crime, and to educate, train, and equip local law enforcement, prosecutors, and judges.

Additionally, the institute will train law enforcement officers, prosecutors, and judges about the methods to obtain, process, and store digital evidence for use in court proceedings. It will also help with the expansion of the Secret Service's Electronic Crime Task Forces by adding officers who have completed training through the institute.

"At the end of the day, getting the upper hand against cyber criminals will make our nation safer, and I'm glad that this critical piece of legislation has been signed into law to do just that," said U.S. Representative John Ratcliffe (R-TX), who introduced the legislation, in a statement.

CAMPUS SAFETY. The U.S. Department of Education Office of Civil Rights rescinded previous mandates issued during the Obama administration on campus sexual assault that required higher education institutions to take specific actions and meet reporting requirements on sexual assaults.

In a new mandate described in a Dear Colleague letter the department rescinded previous letters because they were "confusing and counterproductive" and "led to the deprivation of rights for many students—both accused students denied fair process and victims denied an adequate resolution of their complaints."

Revoking the letters means that schools no longer have to adopt a "minimal standard of proof" when investigating and disciplining students for sexual assaults. Schools now have the option to apply the "minimal standard of proof" or higher standards of proof: the "clear-and-convincing-evidence standard," which means it's "more likely than not" that a sexual assault occurred; and the "highly probable or reasonably certain" standard.

The department will also develop a new approach to student sexual misconduct that "responds to the concerns of stakeholders and that aligns with the purpose of Title IX to achieve fair access to educational benefits," it said.

While the department said the new policy is designed to create a fairer process for sexual assault investigations, critics have claimed that it will discourage victims from reporting sex crimes.

DATA PROTECTION. The U.S. House of Representatives passed a bill that would require entities to create internal risk control mechanisms to safeguard and govern market data storage.

The Market Data Protection Act of 2017 (H.R. 3973) would require the U.S. Securities and Exchange Commission (SEC), the Financial Industry Regulatory Authority, and the Consolidated Audit Trail—in consultation with a chief economist—to establish comprehensive internal risk control mechanisms to safeguard and govern the storage of market data, market data sharing agreements, and academic research.

"The Equifax breach and the recent cyberattack at the SEC only exacerbate the need to ensure top cybersecurity controls are in place at our securities regulator, which is why I look forward to this bill swiftly making its way to President Trump's desk and being signed into law," said bill sponsor U.S. Representative Warren Davidson (R-OH) in a statement.

U.S. Representative Brad Sherman (D-CA) cosponsored the bill, which also has the support of the Financial Services Institute and the U.S. Chamber of Commerce.

TRAINING. U.S. Speaker of the House Paul Ryan (R-MN) announced that all U.S. House of Representatives members—and their staffs—will undergo mandatory antiharassment and antidiscrimination training.

"Going forward, the House will adopt a policy of mandatory antiharassment and antidiscrimination training for all members and staff," Ryan said in a press conference. "Our goal is not only to raise awareness, but also make abundantly clear that harassment in any form has no place in this institution."

The training will be required when the Me Too Congress Act is passed (H.R. 4396, and S. 2159). The move to require the training was initiated following a hearing where two female lawmakers spoke about incidents of sexual misconduct involving sitting members of Congress.

U.S. Representative Barbara Comstock (R-VA) described an interaction where a staffer went to a lawmaker's home to drop work materials off, and was greeted by the lawmaker in a towel. He then invited her inside where he exposed himself to her. The staffer quit her job soon afterwards.

Both bills have been introduced and are undergoing committee reviews. The House bill has 101 bipartisan cosponsors, and the Senate bill has nine Democratic cosponsors.​

Elsewhere in the Courts

Disability. American Airlines Inc. and Envoy Air Inc. will pay $9.8 million to settle charges that they denied accommodations to disabled workers. In a suit brought by the U.S. Equal Employment Opportunity Commission (EEOC), American and Envoy were charged with barring disabled employees from returning to work or transferring to other positions after being restricted on the type of work they could perform. The consent decree also prohibits the airlines from engaging in discriminatory employment practices, denying reasonable accommodation requests, or retaliating against employees who report discrimination. (EEOC v. American Airlines Inc., U.S. District Court for the District of Arizona, No. 2:17-cv-04059, 2017)

Cybercrime. Former U.S. Secret Service agent Shaun W. Bridges, 35, was sentenced to 24 months in prison for money laundering. Bridges was on the team that investigated the Silk Road Dark Web market and admitted to transferring bitcoin out of a U.S. government digital wallet into other digital wallets only he had access to.

Bridges pleaded guilty to one count of money laundering, and in addition to prison time he will forfeit 1,500 bitcoin and other currency valued at approximately $10.4 million. (U.S. v. Bridges, U.S. District Court for the District of Maryland, No. 15-mj-02125-BPG, 2017)

Corruption. Two former executives at Dutch oil and gas services company SBM Offshore NV pleaded guilty to conspiracy to violate the U.S. Foreign Corrupt Practices Act (FCPA). Anthony "Tony" Mace and Robert Zubiate pleaded guilty for their roles in a $16 million scheme to bribe foreign government officials in Brazil, Angola, and Equatorial Guinea to assist the company and its U.S. subsidiary with winning bids, according to the U.S. Department of Justice.

Zubiate's sentencing was scheduled for January 31, and Mace's is scheduled for February 2. (U.S. v. Zubiate, U.S. v. Mace, U.S. District Court for the Southern District of Texas Houston Division, Nos. 17-cr-591, 17-cr-618, 2017)