ACORN Watch: Here come the lawyers
Photoshop credit: Leo Alberti
As expected, ACORN has filed suit against the undercover sting duo James O’Keefe and Hannah Giles, as well as BigGovernment.com publisher Andrew Breitbart.
Shoot the messenger. Sue the messenger: It’s the ACORN way.
Ask Anita MonCrief.
***
Here’s the PDF of the lawsuit.
See what others have said
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“Today on MM Pay for View”
Ragspierre vs. Chapoutier
An ACORN Law Suit Cage Match
I’m making popcorn and settling in for this. Enjoy gentlemen. Looking forward to the exchange.
I wonder if “Our Son” Hussein will be granted a subpoena? It would be helpful to establish the culture of corruption in court.
Of course they are silly. But at the very least there are statutory damages. Which means there is a case.
How would unlcean hands apply? That is an affirmative defense with respect to equitable claims, right? The only equitable claim I see here is to stop showing the tape. It wouldn’t touch the monetary claims.
How can you have a conspiracy if you have no true meeting of the minds? That is an element in MD. If one side is not conspiring to commit an actual crime, there can be no conspiracy.
This is like a lure being cast…..
zero, you are evil.
Like Wolf said,
When will Obama weigh in and call O’Keefe and Giles stupid? When will Bill Clinton ask for Giles’ phone number?
Why do you think this has anything to do with the 4th amendment?
Evidently they are drinking the same stuff that makes you think you are a defender of the 6th amendment. That stuff should be banned!
This is the part of all this that I find difficult to understand. As someone previously noted, ACORN might just be getting desperate. Why would they want to add any more attention to this than there already is?
If anything, it makes me wonder about the remaining tapes that Breitbart has.
Also, if they fired these employees, why would they now want to be in the position of appearing to defend their actions. If anything, they are weakening their defense (in public opinion) by appearing to condone the behavior with this suit.
I’m with Chap on this one. Hannah is definitely hot.
I can’t wait to see how this plays out! If they do proceed with the lawsuit, I’m wondering who will pay for the attorneys for Andrew Breitbart, James O’Keefe and Hannah Giles. While Andrew probably will not need the financial help, James and Hannah might. I’m picturing a smack down between the Fox News Channel hosts on who gets the honor of paying for it! The videos just made for too much good TV for all of them. Glen Beck has had so many “I told you so” moments, I wouldn’t be surprised if he paid from his personal funds!
Salt:
Don’t get me wrong, I wouldn’t kick her out of bed, but you know, it’s kind of pushing the pedo meter is all.
Where I practice, equity and law are not that demarked. The theories have long ago melded, so that contract claims (purely legal) are often defended using equity.
I have not delved into Maryland law…and have no intention to waste that kind of time and effort. But here, we have aide, abet, and assist, in addition to pure conspiracy.
While these are nice, esoteric legal points you raise, this case WILL be heard by a jury. They will apply much less sophisticated…or sophistic…tests.
Like the smell test. If you think a jury will award these thugs money on these claims, I guess you and I have a fundamental disagreement about juries.
That may have yet to be determined exactly, but how about “conspiracy to commit fraud”? (Recognizing that there was an implied meeting of the minds.)
Rags, welcome back! I appreciate your comments.
Aid, abet , assist are all just other words for accessory. You cannot be an accessory to a non-existent crime.
And again, conspiracy is closer but MD law is clear that there must be a unity of purpose between the alleged conspirators. You simply do not have that here when one side is merely pretending to be engaging in criminal activity.
But all of that is separate from the civil aspect. I am not saying that they will get much money out of this. All I am saying is that they probably have a prima facie case based on the statute.
Thank you very much, Mts.
I can’t stay long, or post much, but thought I’d dip an oar briefly.
BTW, I do appreciate Rags pushing back on these points. There is never anything wrong with actually having to intelligently defend your position.
But what you don’t appreciate is that nobody will need to directly assert a criminal action defense to the civil claims. The courtroom will be redolent with it, though it will never be mentioned…except maybe in argument. You don’t have to hit jurors over the head…and often make a mistake if you try. They get it.
On the face of the statute, there is a claim, to be sure. It doesn’t BEGIN to support the damages asserted, and I would attack those on summary judgment right now.
But this is a “skunk in the jury box” case if ever there was one. A Maryland jury could be VERY sympathetic to the Plaintiffs, though. That would simply mean the case goes up on appeal on several issues, one of which would seem to be a First Amendment question of press freedom.
Discovery should be VERY FUN…!!! I can imagine Mark Levin volunteering for the defense team. Hell, I’m tempted…
By the way, for anyone that is interested, when we are talking about “unclean hands” we are talking about what is known as an “affirmative defense.”
In a nutshell what this means is the defendant basically admits that he or she did do what the plaintiff alleges (i.e., secretly taped the conversation). However, because of such and such affirmative defense, they should not be held responsible.
In a criminal context think of someone getting killed and you are the defendant. You could directly try to prove that you did not shoot him by establishing alibi or whatever. Or you could admit you shot the bastard that was sleeping with your wife, but that you did it out of self-defense. That is an affirmative defense.
How could you ask for summary judgment when, at the very least they would have a right to statutory damages?
Chap:
At the risk of exposing my ignorance of all things involving the legal profession:
No offense to your guy’s profession but I always found legal mechanations insufferable. I understand the need for smart guys like you and Rags to do the stuff you do, but so often it seems like foolish issues get wrapped up in the courts for so long over obscure passages of written law.
In my mind, this seems like it could be one of those things. ACORN F’ed up and got burned. As far as I am concenred the only issue here is whether or not it was legal to record those conversations (it was, wasn’t it?). Beyond that, ACORN should be thanking these folks for exposing the types of employees they have.
How fast is this going to get thrown out?
Simple. You attack the evidence they have for a claim of compensatory damages. You attack their evidence for a claim for punitive damages.
That would leave them a claim for the statutory damages, and perhaps a greatly reduced claim for compensatory damages.
Of course, I can only apply Texas law in this analysis, which includes both traditional and “no-evidence” summary judgment. I find that a hybrid motion that combines the two is very effective, and is ALWAYS a wonderfully powerful discovery tool (if nothing else).
Nevermind. I read the article. The legality of the recording appears to be the issue. *sigh*
Can’t we just summarily execute someone and make someone else give up some goats or something?
I think I gotcha. You are talking about summary judgment for individual aspects of the complaint. Not the complaint as a whole. Or at least I think you are.
Anyway, I think we (okay, I) are beginning to bore the living hell out of everyone else, so I will end with this:
FREE
MUMIAO’KEEFE and HANNAH!LET THE STREETS FLOW WITH THE BLOOD OF
THE INFIDELSACORNOkay. Hold on. Free Mumia-type tee shirts might actually be a cool idea for a legal defense fundraiser.
I call dibs on the idea.
Yeppers. You pick a case apart…take all the sweet out of damages claims…early, and it just deflates the hell out of your opponent.
You may not…as here…dispose of the case entirely, but you strip it of its value. That leaves your opponent the choice of fighting for relative pennies, and maybe walking out with a goose-egg, or striking the flag early.
Oh yes. I can get on board with this. War and conflict means more work for me!
I’d agree if this were about damages alone. But I would guess this is more about sending a message to others who might be inclined to try the same thing. And you still have attorney’s fees you can collect.
Sure. If you win.
Meanwhile, ACORN is bleeding profusely from a thousand cuts in the PR arena, and having to fight VERY tough discovery battles that could lead to entirely NEW avenues of attack on the PR, political, regulatory and criminal, and civil legal fronts.
All things considered…this could not be better for us (being those who love liberty).
http://www.redstate.com/leon_h_wolf/2009/09/23/watch-me-get-the-acorn-lawsuit-dismissed-in-15-minutes-or-less/
I pass this along without comment on its merits (which sure seem sound).
Just gotta love this…!!!!
Already commented above. I think he is totally off point.
Thanks. I was about to go look that up.
But in this case, their justification was to expose the behavior of ACORN. I suppose I don’t see that as equivalent to something like self-defense or some other “immediate threat” situation.
I think what they did was a good thing, but I’m not sure I see how this sort of defense is going to help them. If I understand it that is.
An affirmative defense is not simply “yes I did it, but I was justified because…” It can also be “yes I did it but the plaintiff is not entitled to recover because…” the unclean hands theory states that the plaintiff’s bad acts preclude them from relief (or according to Rags, recovery).
Chaps,
Did you read the case-law regarding the expectation of privacy relative to the Maryland statute?
Seems like a viable issue to me.
I’d be happy to. Although I quoted your post, the demonizing thing was also referring to other posts.
And I thought your “nice” comment was intended as sarcasm.
So please forgive my assumption.
And I do understand can defend himself. I was simply making an observation. Which I think is the point of these blog things.
He often has interesting stuff to say. Yes. Lefty slanted at times, but interesting. But why would you expect him to come down squarely on any side with regard to opininon of this law? I don’t see how you fault someone for that if there’s an argument for either “Side”. His position on it.. is his position on it.
I happen to think there are bad aspects to the law as well. But there are situations where the law could protect people and rightly so.
I agree that in cases where the press is doing the taping and illegal activity is involved, “under-cover” video or audio has merit. But that’s a slippery slope. What happens when say, you take video of people that happen to be undercover themselves and unwittingly (or wittingly) expose them?
No sir.
Wow! Looks like the “A” Team from the Monster Thread is almost reassembled!
/me is here.
Rags,
1.the problem is equating a member of the public to “the public.” The second someone walks into an office asking for assistance they are not “the public” anymore. They are a client. To say otherwise would be to totally eviscerate the meaning of reasonable expectation because every single person could be considered a member of the public.
2. Wolf is putting way too much weight on the fact that it is an office. The case law is clear that the expectation of privacy attaches to a person and not a place. Depending on the circumstances one can have a reasonable expectation of privacy in an office and not have one in your own bedroom.
So regarding that angle….
How much do you think it would matter if the room they were actually in wasn’t very private. Such as being adjacent to the reception area and it’s door being left open?
The reason I ask is I recall someone mentioning one of the tapes having the sounds of a parent wrangling their child.
Would it be the case that privacy could no longer be expected if people you are not dealing with can clearly hear your conversation, regardless of where you happen to be?
So, do they have security cameras in Maryland businesses?
Are each of those violations of the law?
If I truck into a publicly funded, open-to-the-public ACORN store-front, do I have an expectation of privacy? If so, to what extent? Can ACORN have security cameras? DOES ACORN have security cameras in Maryland?
Would an expectation of privacy in an ACORN office preclude the ACORNestas from having to report a case of child abuse?
Sure. Expectation of privacy has to do with whether or not THE PUBLIC could listen in. Not whether any third party (like a security guard) could listen in.
Expectation of privacy is not the same as confidentiality.
And THE CLIENT might have an expectation of privacy, but DOES THE ACORNESTA?
In at least one instance, it is apparent that the “office” is very NOT PRIVATE, and people are moving in and out pell-mell.
As I noted before…THIS IS ALL GOOD!!!
As I recall the Sybil telling Claudius; “Let all the poisons that lurk in the mud hatch out!”.
Tar-Baby Transparency works…
Again, you cannot equate other people who happen to be in the office, like other employees, with “the public.”
If the door were kept open and everyone was speaking in a loud enough voice that others that came off the street and into the office would reasonably be able to overhear them from another room, then that might be a situation where there is no REP.
Nope. That is totally bogus. One or all…it makes no difference if your argument is that the law is designed to protect private conversations from being recorded. The law does not require publication to any number of people.
From my own non-lawyer reading of Maryland law, it seems pretty clear to me anyway that privacy in your bedroom is pretty well specifically covered.
There is specifically a case where people were shouting so loudly in their apartment so as to be easily overheard by their neighbors. There was no REP there.
In Maryland there is an actual case – people talking loud enough in their apartment that a neighbor overheard.
Hah-stop typing when I am!
The bedroom thing if i remember correctly had to do with video.
Of course it makes a difference. If you are talking to your doctor, and a nurse is there taking notes, that doesn’t make the conversation any less private. The nurse is not at that point a member of the public.
And wrt security cameras, it is an interesting but moot issue. The person whose reasonable expectation is in question are the ACORN employees. It has to be looked at from their perspective in the specific situation. They would know whether or not a security camera was in that room at that time. And if there is not one then you can’t use the argument that there often are security cameras in office buildings.
But, as an aside, it is actually a real debate in MD whether or not security cameras do violate the law. In particular on public buses. It may very well be that all security cameras are technically in violation. Just because something is not prosecuted does not mean it is legal.
What has not been dissected in the thread are such things as:
Cherry picking Juries for the plaintiff?
Impartiality to outside influence of the prosecution?
Not sure, Rags, but I believe MD law only covers audio recording, not video. If so, a cam that doesn’t capture sound likely would be OK.
But I’d be surprised if this case gets much of anywhere in court, much less before a jury. I have a sneakin’ suspicion it will either be dropped by ACORN or dismissed down the line. There also might be the possibility of ACORN being snared by an anti-SLAPP trap of it’s own making in bringing the suit.
Hi, zero! You are missed! How are junior and Mrs. zero?
I miss Rags also!
They actually have a law that covers video as well. If I get a chance I’ll look up the link.
Weirdly, while it’s a felony to record bad people planning terrible things, and then say, tell the police (“They’re planning on killing hundreds of children, here’s the tape” can land you in prison) but it’s only a misdemeanor to video people in changing rooms, restrooms and the like.
There’s also a case in Maryland where a salesman in a private home was recorded by the couple who lived in that home, and the courts said he had no expectation that his conversation there was private.
I expect it’s a separate, later law drafted after video became so ubiquitous.
The pervs get all the breaks, while someone exposing major corruption and crime gets the book thrown at him. It is an insane world, ain’t it?
Don’t know the particulars, but on the face of it that’d be kosher to me. In your own home you call the shots and if someone comes in, sells you a bill a goods and later you find out you’ve been had, it’s a good CYA move to a record of the original conversation.
To my thinking, other than the perv/stalker cam-audio stuff, it should be legal to tape anybody, anytime. (Except where express, written previous agreement may exclude that option).
Chaps—-tag you’re it. Get those t-shirts printed up. Glenn Beck will probably sell them on his website. Acorn sucks canal water.
Good banter today chap, and welcome back rags. Appreciate getting better informed on the legal angles.
Let the games begin. If nothing else the entertainment value of this legal food fight will be outstanding.
BTW, If anyone is interested Liberty Legal Institute has set up a legal defense fund for Hannah here. It’s tax deductible. I’m in.
As long as I’m not party to a lawsuit it’s popcorn time, swede!
I’ve seen a few people mention that Linda Tripp was prosecuted under this same law. What has not been mentioned much is that the charges against her were dropped, as I think these will be. No court has ever upheld ACORN’s interpetation of the law, not even against ordinary people, let alone against journalists.
swede! Good to see you here and I second the popcorn motion.
But I need to go play footsie with Kingfish.
Later gators!
O’Keefe and Giles could claim an expectation of privacy if they were in an office with the door closed.
The ACORN employees, Thompson and Williams, do not have an expectation of privacy because the area is open, people are walking in and out, and O’Keefe and Giles are the clients and can tell anyone and everyone what was said in the meeting.
The best plan of action is for Brietbart, O’Keefe, and Giles do very heavy duty discovery to get material for more ACORN exposes. Only after getting tons of discovery from ACORN should they file a motion for summary judgment emphasizing the no reasonable expectation of privacy, no compensatory damages, and ACORN is not authorized to do business in Maryland issues.
Plus, here is a relevant post from HotAir:
Uhhh…this is nothing like going up to your Home Depot and asking which ratchet set they think is best. THAT is business to customer. THIS is business to client. This is going into a place and asking for advice, which by its very nature is private. This is where the whole “pimp and prostitute” thing may be a catch-22. No one who is seriously engaging in such a conversation about the best way to avoid taxes and smuggle in 13 year old girls would expect you would want such a conversation to be public.
Enough of the REP stuff. I need to find out what processes on a 64-bit Linux box are creating disk I/O to a specific partition that is pegged at 100% utilization and this is turning out to be far more difficult that I expected.
There are all these lawyer-types hanging around but you can never find a good tech when when you need one.
Why can’t O’Keefe and Giles pull a sting on Oracle or Red Hat instead of ACORN. That would be helpful!
Have you tried control+alt+delete?
Gee, why didn’t I think of that. Tell you what. Open a command line prompt on your PC and type format c: and press enter. Let me know if that helps performance for you.
Glad I could be of help. You might also want to try banging on the side of your computer. Or if that doesn’t work, kicking it.
We could pass the hat around and see if we can set you up with XP w/SP3, WarEagle. It’ll save ya time on entering a dozen lines of commands just to run a text application or sumthin’.
Think about it.
Well, thanks, PP, but I don’t think my 1TB Oracle database will run well on XP with or w/o SP3.
Feel free to pass the hat though I may not use it to buy a computer. I hear there is a Senate seat in Massachusetts for sale soon.
Okay, enjoy your legal discussions again. I am back to work after a full 5 hours of sleep.
In the MD video, did anyone notice how unfazed the ACORN workers were to hear the purpose for James and Heather’s house purchase, like they had heard this sort of thing before? That needs to be checked into and hopefully will, thanks to the disclosure and publicity brought on by the lawsuit.
As for the MD law, Rags is right – this will not work in ACORN’s favor. First, the Constitutional right of the press to investigate is sure to trump this law. Like Rags said, the MD law was not intended to provide cover for illegal activity.
Second, who is to say what constitutes expected privacy and a wiretap – I mean, have the people who argue this never seen the video or been to see a loan officer at a bank?
The video clearly shows the doors to what looks more like a conference room than an office, wide open and presents audible sounds of a child or children and adults talking in the next room. It was as open and non-intimate a setting as the hip-high cubicles that mark off loan officers work desks in bank lobbies, where borrows most private financial info is stated before every customer in the bank.
Expected privacy in conversation is implied to mean intimate, personal discussion between two people – unless explicitly stated otherwise; the MD law leaves too much open to interpretation.
I know ACORN was compelled to instigate a lawsuit because they were caught and need to create doubt if they are to survive the scandal, but they really need to rethink this.
And yet, here we have multiple tapes where people are asking about how to get a home to conduct illegal activities… with ACORN employees understanding that and still engaging them to help get that house… even after being told it will be used in a business for child sex slavery.
Sounds like unity of purpose to me.
What illegal activity do you see on the tapes? List the crime and its elements please.
Remains to be seen. First Amendment is not carte blanche for reporters to break criminal statutes. But in any case that does not mean that the plaintiffs do not have a prima facie case.
Irrelevant. There was no security camera at ACORN and the employees would have known that. Therefore they would have no expectation that they were being taped. Let alone the fact that this covers oral communication. Most security tapes are video only.
That is not the test at all. And it certainly is not limited to two people. Where do you get that idea? It is whether you are knowingly exposing it to the public. The second they walk in from the street and engage the ACORN employees, they are not “the public.” They are clients. To think otherwise would mean that you could absolutely never have a private conversation because every single person would be considered a member of the public.
Uh. No. There had to be unity of purpose between James and Hannah and the ACORN employees.
I was thinking about this yesterday but never got a chance to post.
In several cases the advice just seems to roll freely from the ACORN employees. It is like they had just recently attended a session with their local community organizer on how to assist and enable prostitution in your neighborhood.
I mean they were prepared to give the advice. They must have memorized the manual…