In the recent case, Glik v. Cunnifee, 665 F.3d 78 (2011), the First Circuit Court of Appeals in Boston recently held that the First Amendment protects the right of citizens to make video and audio recordings of police officers arresting people on the street. The federal court decision was particularly relevant in New Hampshire, where police officers in Manchester, Nashua, Weare, Portsmouth and Keene, have recently charged citizens with violating the New Hampshire wiretap statute for recording police officers performing their pubic duties.

Mr. Glik observed and recorded Boston police officers arresting a citizen on Boston Common. Believing that the police were using excessive force, Glik advised the police that he was capturing their actions on video. The police arrested Mr. Glik and charged him with violating the Massachusetts wiretap statute. His criminal charges were ultimately dismissed and Mr. Glik then sued the officers involved and the City of Boston for violating his civil rights. The police and the city asked the court to dismiss the civil rights claim, but the court denied their request.

The court held that the protections of the First Amendment are not limited to the mere act of speaking or publishing words that the government may not like. “It is firmly established that the First Amendment’s aegis extends further than the text’s proscription on laws abridging the freedom of speech, or of the press,” and encompasses a range of conduct related to the gathering and dissemination of information. As the Supreme Court has observed, the First Amendment goes beyond protection for the press and the self-expression of individuals to prohibit the government from limiting the stock of information from which members of the public may draw.”

The Court continued, writing that “the filing of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles. Gathering information about public officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting the free discussion of governmental affairs. The court concluded by stating that, “the freedom of individually verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”

Police officers do not have easy jobs. However, the mere fact that performing their day to day activities may require them to endure certain unpleasantries does not change the fact that they perform their public duties in the name of the public, using equipment provided by the public, and to serve a public purpose. Monitoring and even criticizing the use of public authority and funding goes to the very heart of citizen activism that the First Amendment was specifically written to protect. The First Circuit Court of Appeals decided this case correctly and protected the public’s right to know.

Chuck Douglas and Jason Major of Douglas, Leonard & Garvey just finished a two-week long jury trial in Merrimack County with a $150,000.00 victory against the New Hampshire Department of Corrections in a free-speech case brought by correctional officer Mark Jordan. Here is a copy of the jury verdict form completed by the jury.

Mr. Jordan was suspended without pay or benefits for a year following a parking lot altercation started by another Corrections Department employee on March 10, 2010. Corrections Commissioner William Wrenn also referred the case to the State Police for criminal charges against Mr. Jordan. Evidence that demonstrated that the other employee was the aggressor was available to but ignored by Commissioner Wrenn. The aggressive employee, who had a history of angrily confronting his co-workers, was not placed on suspension or charged with any crime.

Why was Mr. Jordan singled out and placed on a year-long suspension without pay if he was not the aggressor in the parking lot incident? Mr. Jordan happens to be the president of the New England Police Benevolent Association chapter that represents New Hampshire correctional officers. He had been a vocal advocate for the safety of his fellow officers in late 2009 and early 2010, going on the record to challenge what his union saw as dangerous choices to layoff 56 correctional workers (leading to unsafe levels of understaffing), and Commissioner Wrenn’s support for SB500, a bill which proposed the early release of violent offenders and provided weaker sentences for parole violators. Mr. Jordan also began an investigation of allegations of corruption at the Men’s Prison in Concord related to excessive force charges against a fellow correctional officer, which he also made public.

Following the voicing of his opinions in early 2010, Mr. Jordan’s previously strong personal relationship with Commissioner Wrenn broke down, and when the parking lot altercation occurred on March 10, 2010, Wrenn seized the opportunity to attempt to silence and discredit Mr. Jordan by placing him on suspension and under a criminal investigation (which led to a simple assault charge) for a full year. Mr. Jordan was acquitted of the criminal charges against him on February 28, 2011, and finally returned to his job in June of 2011. The State did provide him with back-pay for the year of work he missed, and retroactively reinstated his health insurance.

However, the State refused to acknowledge the damage done to Mr. Jordan while he was out of work without pay. Mr. Jordan fell behind on his bills and his family had to make sparing use of medical care despite a serious health condition that Mr. Jordan suffers from (which came to light after he was assaulted by an inmate in 2009). Mr. Jordan’s wife Pam described the year without pay and benefits, with bogus criminal charges hanging over Mr. Jordan’s head, as being a “year of hell,” with fear and desperation predominating over their family during that time.

The case was tried before Superior Court Judge Richard McNamara from October 18 through October 28, 2010, resulting a verdict for Mr. Jordan in the amount of $150,000.00. The case was tried under RSA 98-E, a statute which guarantees the free speech and criticism rights of State employees like Mr. Jordan. It is believed to be the first jury verdict under RSA 98-E. The statute provides for an award of attorneys’ fees to the prevailing party as well as damages. The case received press coverage in both the Union Leader and Concord Monitor.

By now almost everyone has heard of “identity theft,” and probably knows someone who has been a victim. In today’s electronic world, where you communicate via the faceless world of e-mail and instant messaging, and make purchases electronically via the internet or even in face-to-face transactions when using a credit or debit card, it is relatively easy for technically savvy thieves to obtain your personal information and use it to commit frauds which can cost you significantly.

The first step to avoid becoming an easy victim is to simply be aware of how easy it is for thieves to obtain your information. Having an aware mindset will force you to think twice before entering your credit card or other personal info on a website you’ve never shopped on before, or responding to an e-mail from someone you haven’t previously communicated with. You need to be aware of some the tricks that ID thieves use, such as electronically “eves-dropping” on the signals between the credit card reader on the gas pump or store counter and your bank. The much-publicized case involving Hannaford Stores a few years ago came about through this method of ID theft.

Other tricks include e-mails that pose as popular on-line shopping stores, like Amazon, E-Bay, or even the U.S. Postal Service. These thieves will send out mass e-mails, sometimes even using personal information that can be gleaned from your e-mail address, in order to give them an air of legitimacy. They will claim that there is a problem with a pending or previous transaction, and ask you to enter personal information to confirm your identity so that they can work with you to resolve the problem. If you do so, they take your information and use it for their own nefarious purposes. Or, they use your reply to insert a virus on your computer, which can then be used to obtain even more personal information.

In addition to simply learning about the various schemes out there, a few easy tips can reduce the risks of electronic identity theft. Obviously, if you receive an unexpected e-mail, do not just hit the “reply” button reflexively. You should ask yourself if you actually have conducted business with the sender (or purported sender), and if you are not 100% sure, pick up the phone and call before communicating via e-mail.

If you are going to make an on-line purchase with a credit card, check the web address of the online store’s checkout process. It should have “https” at the beginning of the address. That address indicates a secure transaction, which will encrypt your personal information and keep it less vulnerable to unauthorized access. Also, refrain from the temptation to use debit cards whenever possible – even at point-of-sale locations like stores and gas pumps. Use a credit card instead. Most credit cards contracts have some form of fraud protection which allows you to dispute unauthorized charges. By contrast, a debit card transaction takes money right out of your bank account, and it can be very difficult to get it put back in.

Finally, stay on top of your finances. Carefully review your bank statements and credit card statements at least monthly, and get a regular credit score check done. If you have fallen victim to ID theft despite taking steps to stay safe in the first place, catching the damage before it becomes catastrophic is the next best chance to minimize the harm, even if it is a distant second place.

Douglas, Leonard & Garvey represents consumers in fraud matters and cases invoking the New Hampshire Consumer Protection Act. We have also sued negligent businesses who failed to take appropriate steps to safeguard consumers’ personal information. If you have been the victim of a consumer fraud scheme or identity theft scam, do not hesitate to contact us for assistance.

A decision by the United States Supreme Court in January opened the door to a broader interpretation of the anti-discrimination laws. In the case before the Court, a female employee filed a sex discrimination complaint with the Equal Employment Opportunity Commission and then three weeks later the company fired Mr. Thompson, who was her fiancé. The company lawyers argued that Title VII of the Civil Rights Act does not allow third parties to bring claims of retaliation but only the individual who themselves lodged the discrimination complaint. However, the Supreme Court of the United States in an 8-0 decision said that Mr. Thompson was protected by Title VII.

Thompson was not an accidental victim of the retaliation but, in effect, was collateral damage to the employer’s unlawful act. By terminating him they were retaliating against the female who had filed the charge and that was an unlawful act of punishment against her, although it was indirect. Mr. Thompson was in the “zone of interest” to be protected by Title VII and thus has standing to sue.

When does an office romance qualify as a close relationship? What if the couple had only been dating for a week or two? These are the issues left for future cases and future employers. It is a warning to employers to consider whether the person they are firing has a relationship to the complaining party such that it would be considered retaliation.

Douglas, Leonard & Garvey represents employees in discrimination and retaliation cases but we know that each case turns on its own unique and individual facts.

In a recent case the employer hired a woman named Holms but a month later she announced she was pregnant. It was not long before the President of the company made it plain that he was very unhappy about having to find someone to fill in when Ms. Holms went out on leave to have her baby. She used the company computer to e-mail her attorney to ask about whether her treatment had created a hostile work environment, what her rights were, and what her options were.

The trial judge sided with the employer because of a policy that prohibited the use of company e-mail for personal matters and giving the employer the right to inspect “all files and messages at any time.” A court in California upheld a verdict for the company concluding that the female employee’s e-mails were not protected by attorney/client privilege because she had used a system that was open to inspection and monitoring by third parties as opposed to having sent an e-mail from her home to her lawyer.

On the other hand, the New Jersey Supreme Court has held that an employer cannot read an employee’s e-mails to her lawyer. Thus, this area of the law will depend on the judge and location of the court deciding the question. So, employees need to think twice before they use an employer’s computer to contact their lawyer—it may or may not be discoverable.

In an early posting, we covered the potential dangers of posting personal information on social networking sites like Facebook, Myspace, and Twitter.  That earlier blog primarily concerned the risks presented by an employer or prospective employer reading your postings and leading to the loss of a job, or the dangers of someone on the other side of a lawsuit finding information on your Facebook page that might be used against you in your case.  While these are still important reasons to be cautious in what you post online, there are other, equally significant reasons to use your best judgment when communicating online, even if you are not involved in a lawsuit, and are absolutely sure that your employer has no interest in your Facebook or Myspace page.

Online bullying and stalking is one reason to be careful who you communicate with online, and how much information you share.  An online stalking case from Oklahoma recently hit the news.  A link to the story can be found here: http://www.newson6.com/Global/story.asp?S=14078889.  The case involved a woman named Elexis Hennigh, who made the mistake of “friending” a man she barely knew, by the name of Travis Taylor.  Mr. Taylor allegedly became obsessed with Ms. Hennigh, and began sending her melodramatic messages asking for a date, and refusing to take “no” for an answer.  Ms. Hennigh documented her communications with Mr. Taylor in her own online blog, which can be viewed here: (WARNING – Graphic and Violent Language) http://elexishennigh.blogspot.com/?zx=cdb3a7d3eab9bf8e.  When Ms. Hennigh finally made her lack of interest in Mr. Taylor’s romantic advances clear to him, he threatened her with extremely graphic violence.  Mr. Taylor was arrested, and Ms. Hennigh now has to live with both the fear of Mr. Taylor acting out on his threats, and the embarrassment of her poor judgment being made very public.  While her case is an extreme example of carelessness with online communications, it highlights the potential risks.  What seemed innocent enough at the beginning became a very serious and scary situation in a short period of time.

Another risk of sharing information online is identity theft.  Douglas, Leonard and Garvey was recently involved in a case where a client’s information, posted on Facebook, was used to create a very convincing “clone” Facebook page by a third party.  The “clone” site was so convincing (including a picture of our client) that the client’s friends began communicating and sharing information with the “clone” site.  It is not hard to imagine how the use of a “clone” Facebook page could be used to the detriment of the person being cloned, and potentially the detriment of that person’s friends and family who were duped by the convincing fake.

The moral of the story is simple – if you wouldn’t share the information with a random stranger walking down the street, you probably should not post it online.  In addition, you should really think twice, or three times, about “friending” people you have never met in person.  The cases involving Ms. Hennigh and our client show just a few of the dangers presented by the online virtual world that the new generation of social networking sites has created.

Consumers should be alert to so-called “price-matching guaranty” scams.  There a few variations of these scams, but they all share the common theme of a consumer products merchant claiming that they will “match the price” of a competitor selling the same product.  The purpose of these claims is to lead you to believe that no one can offer a better deal than those offered by the “price-matching” seller.  However, while the claim is that the seller will match a lower price if you can find it, the reality is, it will often refuse to do so, even with an identical product.  How do they justify this kind of false and misleading advertising?

In one version of the price-matching scam, the merchant claims it will match the price of a competitor for any given product.  However, when you find the same product being sold by a competitor for a lower price, and ask the “price-matching” seller to match the lower price, it will refuse to do so, on the basis that the competitor’s product is “not an exact match.”  Even though the product really is identical, the scamming seller will create a “non-exact match” by “bundling” the same product with some kind of “free” cheap trinket.  As an example, imagine you find a TV for sale at “price-matching” seller for $1000.  It comes with a “free” bottle of screen cleaner (really worth $4.99).  You find the same exact television for sale at competitor’s store for $900.  When you tell the “price-matching” merchant to match the price in accordance with its guarantee, they will refuse, simply because the competitor’s store isn’t giving away the $4.99 bottle of screen cleaner.  Of course, the $4.99 bottle of screen cleaner does not equal the $100 price difference between the “price-matching” scam artist’s television and the competitor’s, but the artificial “inexact” match gives the unscrupulous seller a way out of keeping its promise to match the competitor’s price.

A more sophisticated variation of the price-matching scam involves the “price-matching” seller having items made up by the manufacturer with a specific model number code that is unique to versions of that product sold by the scam artist’s store.  Using the television example again, the seller would offer a television that is exactly the same as a television sold by its competitors in every respect except the model number code, which is often different by only one character.  So for example, the “price-matching” electronics store would sell a television with model number 1100-A-21-A for $1000.  Its competitor would sell the same exact television, but with model number 1100-A-21-B, for $900.  When you inform the “price-matching” seller of the better deal being offered by the competitor, and demand that it match the price, it will again refuse to do so, telling you that the television is not an “exact match” because the model code stamped on it is different by one character, even though the product is exactly the same in every meaningful way.

This type of false and deceptive advertising and sales practices are probable violations of the New Hampshire Consumer Protection Act, which has powerful remedies for consumers who are victimized by such unscrupulous acts. If you aware of such a scam, or have had the misfortune of falling victim to one, you should consider contacting a consumer protection attorney.  Douglas, Leonard & Garvey, P.C. has extensive experience litigating consumer protection-related issues, and would be happy to consult with you if you have information about a scam like the one described above.

One of the things that has caused some of Mr. Bird’s supporters to feel dissatisfied with the New Hampshire Supreme Court’s decision concerns the standard of review applied by the Court and the fact that the Court gave what some see as excessive deference to the government.  The first thing to understand about New Hampshire appeal in the Supreme Court is that the Supreme Court is not a “second jury.”  The Supreme Court judges assume that the jury got all of the factual questions right.  Showing this kind of deference to the factual findings of juries is entirely appropriate.  In fact, the system could not operate if the Supreme Court was able to second guess the jury verdict when it hears appeal.  Appeals are usually limited to the question of whether the trial judge made an error of law.

The high burden faced by a party appealing a lower court decision, and the deference shown to lower court and jury proceedings, is not unique to New Hampshire.  Although there may be some very subtle differences from state-to-state, in general, appellate courts exist to review trial court decisions solely for errors of law.  The Supreme Court’s deference to findings of fact in the lower court is standard operating procedure; Mr. Bird is not being picked on in this regard

The Ward Bird case has generated a great deal of local, and even national, attention.  On its face, the fact that a man with no criminal record whose only action was showing a gun to an intruder suggests an extreme miscarriage of justice.  The cases raises questions about the freedom a property owner to act in self-defense on his or her own property, judicial power, and the wisdom of laws establishing minimum mandatory sentences that are imposed without the benefit of a judicial “safety valve.”  The facts of the case, as recounted by the New Hampshire Supreme Court in its October 27, 2010 decision, are as follows:

Christine Harris arranged to meet a real estate agent on March 27, 2006, at his office to view a property for sale in Moultonborough owned by Patricia Viano that Harris was interested in purchasing. That day, she called the real estate agent to inform him she was running late and could not make the appointment. Because he could not meet her later that day, she decided to look at the property herself. During her drive to the property, she became lost and stopped at the home of the defendant’s niece, where she asked for directions. The niece told her that the most direct route to the property was Emerson Path to Yukon Trail, and then a road to the left with a small bridge over a stream. The niece told her that if she passed a white “job trailer,” she was on the wrong property.

After Harris left the home of the defendant’s niece, the niece telephoned the defendant to warn him that Harris was going to look at the Viano property and that she might show up on his property. She also told the defendant that Harris was driving a Ford Ranger. Harris followed the niece’s directions and drove past signs that stated “Private road, keep out” on Emerson Path and “no trespassing” on Yukon Trail. She missed the left hand turn off of Yukon Trail, drove past the white trailer, and ended up in front of the defendant’s house. She parked her car and got out. The defendant emerged from his home “screaming, get the F off my property.” He came down from his porch, continuing to yell profanities while waving a gun at her. At trial, she testified that he pointed the gun “[t]owards” her. Harris asked the defendant whether he was the boyfriend of the woman selling the property. He repeated his command for her to leave his property. Harris eventually climbed back into her car, mouthing “[w]hat an ass.” The defendant then walked off the porch toward her waving his gun as she backed out of the driveway.

Over the next several days, we will be updating this series of postings on the Ward Bird case, addressing the law of criminal threatening, prosecutor’s exercise of discretion, the right of self-defense and the duty to behave reasonably, and the merits of statutory mandatory minimum sentences, such as the one imposed on Mr. Bird.

The New Hampshire Supreme Court decided an interesting case this week concerning the right of a party to participate in his civil case via telephone, when he is unable to attend the hearing in person, due to the fact that he is in prison.

According to the Bellingham Herald, in Washington state, Buzzard has been in prison since 2003 for sexually assaulting a child.  He will be eligible for parole in March, 2011.  The New Hampshire Supreme Court’s decision says that while incarcerated, Mr. Buzzard filed a small claim in Nashua District Court.  The small claim alleges that Mr. Buzzard ordered some magazines and photographs from the defendants, Ariel Shea and F.F. Enterprises, a now-defunct operation out of Nashua.  Mr. Buzzard alleged that the defendants took his $60.00 but failed to deliver the pictures and magazines as promised.

Not surprisingly, Mr. Buzzard was unable to attend the hearing in the Nashua District Court, as he was in prison.  He petitioned the court to allow him to appear telephonically, and even arranged with the Washington authorities to have a telephone available to him.  The Nashua District Court denied this request, and when Mr. Buzzard predictably failed to appear for his hearing, the court dismissed his small claim.

The Supreme Court accepted Mr. Buzzard’s appeal, and held that the Nashua District Court should not have dismissed his case.  The Court noted decisions from other state and federal jurisdictions in which courts have found that it was fundamentally unfair to prevent an inmate from being heard in court.   The Supreme Court ruled that the lower court was at least required to consider whether the “countervailing considerations such as expense, security, or logistics” were sufficient to preclude the imprisoned litigant from participating in his trial telephonically.

The Nashua District Court will now have to reconsider whether to allow Mr. Buzzard to phone in his case.

The implications of this case may be more significant than Mr. Buzzard’s interest in getting his pictures or the return of his $60.00, however.  A person does not forfeit his constitutional right to petition the court for a redress of grievances when he is imprisoned.  A criminal conviction and sentence strips a person of many of his rights, most obviously, his right to remain at liberty and be free.  However, inmates still have a fundamental right to access the court system.  This case requires that courts consider the various means available to allow even prison inmates to exercise this important right.