Assault by Means of a Dangerous Instrument and the Facebook Messages

After a jury convicted Robert Eleck of “assault in the first degree by means of a dangerous instrument in violation of General Statutes § 53a–59 (a)(1)”, he appealed. State v. Eleck, 2014 WL 5139291 (Supreme Court of Connecticut 2014).

The Supreme Court began its analysis of Eleck’s argument on appeal by explaining how the case arose:

`[Eleck] attended a party at 16 Charles Street in Norwalk in the early morning hours of December 9, 2007. All of the approximately twenty teens and young adults who attended were consuming alcoholic beverages, and many were intoxicated. While inside the house, [he] was involved in at least two verbal confrontations with one guest, Matthew Peacock. [Eleck] also conversed on several occasions with another guest, Simone Judway.’

`Shortly after 2:30 a.m., outside the house, [Eleck] and Peacock engaged in a physical altercation that included punching and grappling. Three other guests, including Zachary Finch, joined the fight to help Peacock. When the combatants were separated, both Peacock and Finch discovered that they had suffered stab wounds.’

`[Eleck] subsequently was arrested and charged with assault in the first degree with a dangerous instrument in violation of § 53a–59 (a)(1) in connection with the injury to Peacock and assault in the second degree in violation of General Statutes § 53a–60(a)(2) in connection with the injury to Finch. Following a trial to the jury, [he] was convicted of assault in the first degree regarding the assault on Peacock and acquitted of assaulting Finch. Because [Eleck’s] assault conviction involved the use of a dangerous instrument, he faced a mandatory minimum sentence of five years. He was, in fact, sentenced to the mandatory minimum sentence of five years incarceration with an additional ten years of special parole.’

State v. Eleck, supra (quoting State v. Eleck, 130 Conn. App. 632, 633, 23 A.3d 818 (Connecticut Appellate Court 2011)).

The Supreme Court goes on to explain that Eleck appealed from the trial court’s

judgment of conviction to the Appellate Court, claiming . . . the trial court improperly ruled that a printed copy of an online conversation between [Eleck] and a person utilizing Judway’s Facebook account, which [Eleck] attempted to submit into evidence for the purpose of impeaching Judway's testimony, had not been properly authenticated. . . .

The Appellate Court disagreed with [Eleck] and, accordingly, concluded that the trial court had not abused its discretion in declining to admit the document into evidence. . . . This appeal followed. . . .

State v. Eleck, supra.

The Supreme Court goes on to note that the Appellate Court’s opinion also “reveal[ed] additional facts and procedural history that are relevant to” Eleck’s claim on appeal to the Supreme Court.   State v. Eleck, supra.

`As a witness for the state, Judway offered key testimony that, prior to the physical altercation, [Eleck] had told her that "if anyone messes with me tonight, I am going to stab them.” Subsequently, during cross-examination, defense counsel sought to impeach Judway's credibility by asking her whether she had spoken with [Eleck] in person since the incident. She responded that she had seen [him] in public but had not spoken to him in person, by telephone or by computer. Defense counsel then showed Judway a printout purporting to show an exchange of electronic messages between [Eleck’s] Facebook account and another account under the user name "Simone Danielle." Judway identified the user name as her own, but denied sending the messages to [Eleck]. She also testified that someone had "hacked" into her Facebook account and changed her password "two [to] three weeks' ago such that she had been unable to access it subsequently."

On the following day, during [Eleck’s] testimony, his counsel offered into evidence [his] Facebook printout containing messages purportedly from Judway. The state objected on the grounds that the authorship of the messages could not be authenticated and [thus] the document was irrelevant. In response, to authenticate the document, [Eleck] testified that he downloaded and printed the exchange of messages directly from his own computer.’

`He also advanced testimony that he recognized the user name, “Simone Danielle,” as belonging to Judway because she had added him as a Facebook “friend” a short time before he received the message. He testified that the “Simone Danielle” profile contained photographs and other entries identifying Judway as the holder of that account. Finally, he testified that when he logged in to his Facebook account after the previous day's testimony, user “Simone Danielle” had removed him from her list of Facebook “friends.” [His] counsel then argued that based on this testimony and Judway's identification of her user name, there was a sufficient foundation to admit the document for the jury's consideration.’

State v. Eleck, supra.

The Supreme Court then notes that as the Appellate Court explained in a footnote,

the printout of the online conversation between [Eleck] and `Simone Danielle’ proffered by [Eleck] consisted of the following:

`Simone Danielle: Hey I saw you the other day and I just want to say nice bike.’

`[The Defendant]: why would you wanna talk to me.’

`Simone Danielle: I'm just saying that you have a nice bike that's all. The past is the past.’

`[The Defendant]: yup thanks.’

`Simone Danielle: No problems. . . .’

State v. Eleck, supra.  The Supreme Court went on to explain that, as the Appellate Court noted, “`[t]he [trial] court . . .  sustained the state's objection on the ground [Eleck] had not authenticated that the messages were written by Judway herself.’”  State v. Eleck, supra. 

It also explained that Eleck was not claiming, on appeal to the Supreme Court, that

the trial court's refusal to admit the proffered document infringed on any of his constitutional rights. Instead, [he] claims that the ruling is evidentiary in nature. 

State v. Eleck, supra. 

In other words, Eleck claimed the messages should not have been admitted because they had not been adequately authenticated, as required by Connecticut evidence law.  In its opinion in the case, the Appellate Court explained that

[i]t is well established that [a]uthentication is . . . a necessary preliminary to the introduction of most writings in evidence. . . . In general, a writing may be authenticated by a number of methods, including direct testimony or circumstantial evidence. . . .Both courts and commentators have noted that the showing of authenticity is not on a par with the more technical evidentiary rules that govern admissibility, such as hearsay exceptions, competency and privilege. . . . 

Rather, there need only be a prima facie showing of authenticity to the court. . . . `Once a prima facie showing of authorship is made to the court, the evidence, as long as it is otherwise admissible, goes to the jury, which will ultimately determine its authenticity.’ State v. Garcia, 299 Conn. 39 (Supreme Court of Connecticut 2010).

State v. Eleck, supra (Appellate Court of Connecticut).  

Authentication is governed by § 9-1(a) of the Connecticut Code of Evidence, which says “[t]he requirement of authentication as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the offered evidence is what its proponent claims it to be.”  In its opinion, the Appellate Court found Eleck had failed to authenticate “the authorship of certain messages generated via Judway’s Facebook account” for reasons it proceeded to outline.  State v. Eleck, supra (Appellate Court of Connecticut).  

The Appellate Court went on to explain that in this case, Eleck offered evidence as to

the accuracy of the copy and Judway's connection to the Facebook account. He also proffered evidence that Judway had added him to her list of Facebook `friends’ shortly before allegedly sending the messages, and then removed him as a friend after testifying against him at the trial. Specifically in regard to authorship, however, the direct testimony of the purported author, Judway, contradicted [Eleck’s] assertion.’

`While admitting the messages were sent from her Facebook account, she simultaneously denied their authorship. She also suggested she could not have authored the messages because the account had been `hacked.’ Although this suggestion is dubious under the particular facts at hand, given that the messages were sent before the alleged hacking of the account took place, Judway's testimony highlights the general lack of security of the medium and raises an issue as to whether a third party may have sent the messages via Judway's account. Consequently, we agree with the trial court that the fact Judway held and managed the account did not provide a sufficient foundation for admitting the printout, and it was incumbent on [Eleck], as the proponent, to advance other foundational proof to authenticate that the proffered messages did, in fact, come from Judway and not simply from her Facebook account.

State v. Eleck, supra (Appellate Court of Connecticut).  

For these and other reasons, the Appellate Court held that the trial judge did not err in excluding the printout “documenting electronic messages purportedly sent to him by Judway from her Facebook account.” State v. Eleck, supra (Appellate Court of Connecticut).  

And that was the issue Eleck asked the Supreme Court to review and reverse.  Instead of re-examining the propriety of excluding the evidence Eleck sought to admit, the Supreme Court focuses on whether the exclusion of the evidence was “harmful,” i.e., whether it negatively impacted Eleck’s ability to present a defense at trial. State v. Eleck, supra.  

As Wikipedia explains, a “harmless error is a ruling by a trial judge that, although mistaken, does not meet the burden for a losing party to reverse the original decision of the trier of fact on appeal, or to warrant a new trial.”  So the Supreme Court approached the issue by “assuming, without deciding, that the exclusion of the proffered evidence was improper”, and then went on to decide whether the error was “harmless.”  State v. Eleck, supra.

It began its analysis of that issue by explaining that Eleck claimed the

evidentiary error was improper because the online conversation impeached Judway. Specifically, [he] claims Judway denied having any contact with [him] between the night of the assault and the day of trial and that this conversation impeached that testimony. [Eleck’s] position is that the failure to impeach Judway likely affected the jury's verdict because Judway's testimony suggested [he] was prepared to stab anyone who `messes with’ him, which suggested premeditation on the part of [Eleck]. In addition, [he] notes that both the state, during its closing argument, and Detective James O'Leary, of the Norwalk Police Department, the officer who interviewed the witnesses in this case, believed Judway was the most reliable witness because she did not smell of alcohol and wrote out her own statement. 

The state argues that any impropriety was harmless. The state claims its case against [Eleck] was strong, as multiple witnesses identified [him] as the person who initiated the physical altercation with Peacock, at least two witnesses saw [him] wrap Peacock in a bear hug, another saw [Eleck] holding a knife at the end of the fight, and several witnesses observed Peacock was bleeding soon after the confrontation with [Eleck].

The state also notes that [Eleck] admitted to using a knife during the fight. Further, the state claims, the substance of the conversation between Judway and [Eleck] did not touch on the details of the case or Judway's impending testimony and, thus, admission of the conversation would likely have little impact on the jury's determination on Judway's credibility. Finally, the state notes that [Eleck] presented testimony to the jury indicating he had received messages from a Facebook account maintained by Judway and that, during closing arguments, [he] used this testimony to attack Judway's credibility. It is the state's position that the introduction of the printout of the Facebook conversation between [Eleck] and Judway would, thus, have been very unlikely to have had a substantial impact on the jury's verdict.

State v. Eleck, supra.

The Supreme Court therefore agreed with the prosecution:

[Eleck] has not shown that the exclusion of the proffered evidence had a substantial impact on the jury's verdict. In addition, the state's case was strong. Numerous witnesses not only identified [Eleck] as the person who initiated the contact with Peacock, but also noticed after the contact that Peacock was bleeding.

Further, [Eleck] admitted using a knife during the fight. Given that [he] presented evidence in the form of his own testimony that he was contacted by Judway and argued during closing argument that her denial of authorship should be taken into account when judging Judway's credibility, it is doubtful that the admission of the printout would have had any additional impact. We conclude, therefore, that assuming, without deciding, that there was any evidentiary impropriety, the ruling was harmless.

State v. Eleck, supra.

You may wonder why the Supreme Court took this approach, i.e., did not specifically decide if the exclusion of the printout was correct, or incorrect, but, instead, assumed it was error and therefore only addressed whether the error was harmless. It does not explain why it did this. I do not know if this had any impact on that decision, but in tis opinion the Appellate Court spent some time discussing, basically, how complicated the authentication of online content, including messages, can be, at least when compared to authenticating hard copy content.  So, perhaps the Supreme Court thought it was prudent to defer that issue until more case law had developed in this area . . . . 

The NCIS, Child Pornography and the Posse Comitatus Act

After a jury convicted Michael Dreyer of “one count of distributing child pornography . . . in violation of 18 U.S. Code §2252(a)(2) and (b)(1), and one count of possessing child pornography . . . in violation of 18 U.S. Code § 2252(a)(4)(B) and (b)(2)” and “sentenced to 216 months of incarceration and lifetime supervised release”, he appealed.  U.S. v. Dreyer, 767 F.3d 826 (U.S. Court of Appeals for the 9th Circuit 2014). On appeal, he argued that the U.S. District Court Judge erred in denying his motion to suppress certain evidence.  U.S. v. Dreyer, supra.

Dreyer’s motion to suppress was based on certain aspects of the investigation that led to his being charged with two counts of violating 18 U.S. Code § 2252: 

In late 2010, [Naval Criminal Investigation Service] Special Agent Steve Logan began investigating the distribution of child pornography online. Several months later, from his office in Georgia, Logan used a software program, RoundUp, to search for any computers located in Washington state sharing known child pornography on the Gnutella file-sharing network.

Logan found a computer using the Internet Protocol (IP) address 67.160.77.21 sharing several files identified by RoundUp as child pornography. He downloaded three of the files, two images and a video, from that computer. After viewing the files, Logan concluded that they were child pornography.

. . . Logan made a request for an administrative subpoena for the name and address associated at the time of the downloads with the IP address. He submitted his request to NCIS's representative at the National Center for Missing and Exploited Children, which turned the request over to the Federal Bureau of Investigation. The FBI sent an administrative subpoena to Comcast. Comcast responded by providing Dreyer's name and address in Algona, Washington.

After receiving that information, Logan checked a Department of Defense (DoD) database to determine if Dreyer had a military affiliation. He found Dreyer had no current military affiliation. Logan wrote a report summarizing his investigation and forwarded it and the supporting material to the NCIS office in the state of Washington. That office then turned the information over to Officer James Schrimpsher of the Algona Police Department.

Schrimpsher verified that Dreyer lived in Algona based on property and utility records. Because Schrimpsher had never worked on any case involving internet crimes or child pornography, he contacted the Internet Crimes Against Children Task Force for assistance and was referred to Detective Ian Polhemus of the Seattle Police Department. Polhemus reviewed some of the information in the NCIS report, and provided Schrimpsher with a sample of a search warrant affidavit.

Subsequently, Schrimpsher sought, and was issued, a search warrant by a state court judge. Schrimpsher, along with several other officers, including Polhemus, Detective Timothy Luckie of the Seattle Police Department, and Sergeant Lee Gaskill of the Algona Police Department, executed the search warrant. At Dreyer's residence, Luckie conducted an on-site `preview’ search of a desktop computer he found in the house. He identified some images as possible child pornography and directed the Algona officers to seize the computer.

Months later, United States Department of Homeland Security Special Agent Cao Triet Huynh applied for a warrant to search the electronic media seized from Dreyer's home. Huynh based his application on the media found by Logan and Luckie, as well as incriminating statements Dreyer made during the car ride. A federal magistrate judge issued a search warrant. The resulting forensic examination of Dreyer's computer revealed many videos and images of child pornography.

U.S. v. Dreyer, supra.

Dreyer was, as noted above, charged with violating 18 U.S. Code § 2252, after which he “moved to suppress the evidence seized during the July 6, 2011 search, as well as the evidence found during the later federal search of the computer.” U.S. v. Dreyer, supra.  In moving to suppress, Dreyer argued “that, as an NCIS agent, Logan had no lawful authority to investigate civilian crime.”  U.S. v. Dreyer, supra. The prosecution filed a response to his motion, the U.S. District Court Judge held a hearing on the matter and “orally denied his motion to suppress.”  U.S. v. Dreyer, supra.

On appeal, Dreyer again argued that “the fruits of the NCIS investigation into his online file sharing should have been suppressed because military enforcement of civilian laws is prohibited.” U.S. v. Dreyer, supra.  The Court of Appeals began its analysis of his argument by explaining that the Posse Comitatus Act (PCA), 18 U.S. Code § 1385,

`prohibits Army and Air Force military personnel from participating in civilian law enforcement activities.’ U.S. v. Chon, 210 F.3d 990 (U.S. Court of Appeals for the 9th Circuit 2000). . . . Congress has directed `[t]he Secretary of Defense [to] prescribe such regulations as may be necessary’ to prevent `direct participation by a member of the Army, Navy, Air Force, or Marine Corps’ in civilian law enforcement activities unless otherwise authorized by law. 10 U.S. Code § 375. . . .

We have previously recognized that, `[a]lthough the PCA does not directly reference the Navy,’ `PCA-like restrictions’ apply to the Navy as a matter of Department of Defense (DoD) and Naval policy. U.S. v. Chon, supra. . . . Specifically, DoD policy states that its `guidance on the Posse Comitatus Act . . . is applicable to the Department of the Navy and the Marine Corps as a matter of DoD policy, with such exceptions as may be provided by the Secretary of the Navy on a case-by-case basis.’  DoDDirective (DoDD) 5525.5 Enclosure 4 E4.3 (Jan. 15, 1986). `[T]he Secretary of the Navy, using nearly identical language, has adopted this policy.’ U.S. v. Chon, supra. . . .

U.S. v. Dreyer, supra.

The Court of Appeals went on to explain that “the government” argued that

even though PCA-like restrictions apply to the Navy, they do not apply to civilian NCIS agents. Chon rejected the same argument. There, as here, the government argued that `§ 375 does not apply to the NCIS because most of its agents are civilians,’ and `it is headed by a civilian director with a civilian chain of command.’ . . . The government based its first argument on provisions in DoD and Naval policies that exempt four categories of people from PCA-like

restrictions: (1) members of reserve components when not on active duty; (2) members of the National Guard when not in the Federal Service; (3) civilian employees of DoD unless under the direct command and control of a military officer; and (4) military service members when off duty and in a private capacity.

Chon interpreted `these exemptions to mean the PCA and PCA-like restrictions function to proscribe use of the strength and authority of the military rather than use of the private force of the individuals who make up the institution’ U.S. v. Chon, supra. `In other words, while DoD personnel may participate in civilian law enforcement activities in their private capacities, they may not do so under the auspices of the military.’ U.S. v. Chon, supra. . . . Chon held that the PCA-like restrictions do apply to `civilian NCIS agents’ who `represented and furthered the interests of the Navy,’ and were not distinguishable by the civilians who might interact with them from members of the military. U.S. v. Chon, supra. . . .

Chon also rejected the government's second contention, `that the NCIS should be exempt from PCA-like restrictions because it is headed by a civilian director with a civilian chain of command.’ U.S. v. Chon, supra. The court reasoned that `the NCIS Director has a direct reporting relationship to the Chief of the Naval Operations, a military officer,’ and so `[d]espite a civilian Director, the NCIS continues to be a unit of, and accountable to, the Navy.’ U.S. v. Chon, supra. The government argues that Chon's reasoning has been undermined, because the `reporting relationship’ between the NCIS director and the Chief of Naval Operations `was eliminated in 2005’ when the Secretary of the Navy issued Instruction 5430.107.

The government is incorrect. . . . [T]he change in NCIS's policies regarding its command structure did not undermine this portion of Chon's reasoning. . . .

[T]he government's assertion that there is a meaningful difference between civilian and other employees of the Navy for the purposes of the PCA-like restrictions is unsound. The DoD policies have consistently proclaimed that they set forth `restrictions on participation of DoD personnel in civilian law enforcement activities.’ . . . They do not limit their reach to non-civilian personnel only. And any contention to the contrary is belied by the abundantly clear expressions in the most recent regulations and policy instructions. Both state that they `[a]ppl[y] to civilian employees of the DoD Components,’ and their restrictions on direct participation in civilian law enforcement `apply to all actions of DoD personnel worldwide,’ with `DoD personnel’ defined to include `Federal military officers and enlisted personnel and civilian employees of the Department of Defense.’ 32 C.F.R. §§ 182.2(e), 182.3, 182.4(c). . . . Accordingly, we re-affirm Chon's holding that NCIS agents are bound by PCA-like restrictions on direct assistance to civilian law enforcement.

U.S. v. Dreyer, supra.  The Court of Appeals therefore “re-affirm[ed] Chon's holding that NCIS agents are bound by PCA-like restrictions on direct assistance to civilian law enforcement.” U.S. v. Dreyer, supra. 

It then took up the issue raised by Dreyer’s motion to suppress, explaining that

[w]e have `set forth three tests for determining whether military involvement in civilian law enforcement constitutes permissible indirect assistance: ”‘[1] The involvement must not constitute the exercise of regulatory, proscriptive, or compulsory military power, [2] must not amount to direct active involvement in the execution of the laws, and [3] must not pervade the activities of civilian authorities.”’ U.S. v. Hitchcock, 286 F.3d 1064 (U.S. Court of Appeals for the 9<sup>th</sup> Circuit 2002) (quoting U.S. v. Khan, 35 F.3d 426 (U.S. Court of Appeals for the 9<sup>th</sup> Circuit 1994).  `If any one of these tests is met, the assistance is not indirect.’  U.S. v. Khan, supra.

U.S. v. Dreyer, supra. 

The Court of Appeals then found that Agent Logan’s RoundUp surveillance of

all computers in Washington amounted to impermissible direct active involvement in civilian enforcement of the child pornography laws, not permissible indirect assistance. He acted as an investigator, an activity specifically prohibited as direct assistance. . . .

Also, Logan engaged in his investigation not in any support capacity to civilian law enforcement, but rather as an independent actor who initiated and carried out this activity. His actions thus were not `incidental’ to the overall investigation into Dreyer, or limited to backup support. . . . The results of his investigation served as the primary basis for the state search warrant. Schrimpsher conducted no significant additional investigation before procuring the warrant -- he only verified that Dreyer lived at the address he was given and that the descriptions that Logan provided of the files seemed to describe child pornography. Without Logan's identification of Dreyer, his computer, and the child pornography on his computer, there would have been no search and no prosecution.

Accordingly, Logan's actions amounted to direct assistance to civilian law enforcement. The government nonetheless argues that [his] investigation was proper because it falls into the `independent military purpose’ exception to the prohibition on direct assistance.

U.S. v. Dreyer, supra. 

The court goes on to note that the polices and regulations create an exception to

`the general prohibition on direct involvement where’ there is `an independent military purpose,’ that is, `where the military participation is undertaken “for the primary purpose of furthering a military or foreign affairs function of the United States, regardless of incidental benefits to civilian authorities.”’ U.S. v. Hitchcock, supra (quoting DoD Directive 5525.5, Enclosure 4, E4.1.2.1). Such military activities include `[i]nvestigations and other actions related to enforcement of the Uniform Code of Military Justice.’ DoD Directive 5525.5, Enclosure 4, E.4.1.2.1.1.

The Uniform Code of Military Justice prohibits distribution of child pornography by a member of the armed forces. It has assimilated the elements of the federal child pornography statute through Article 134, its general provision that prohibits `all conduct of a nature to bring discredit upon the armed forces.’ 10 U.S. Code § 934. . . . In 2011, the President issued Executive Order 13593, adding to the Manual for Courts Martial a specific Article 134 provision for child pornography. Investigation by military law enforcement officers of possession and distribution of child pornography by military personnel is therefore proper.

U.S. v. Dreyer, supra. 

The Court of Appeals found that Logan’s search was not “reasonably focused” on

carrying out such a legitimate military investigation. NCIS is authorized to investigate criminal operations that `significantly affect the naval establishment.’ SECNAVINST 5430.107(3)(c), 7(b)(2). Logan understood he did not have the authority to search any location, but had to limit his searches to areas where there was `a Department of Navy interest.’ Yet, Logan's search did not meet the required limitation. He surveyed the entire state of Washington for computers sharing child pornography. His initial search was not limited to United States military or government computers, and, as the government acknowledged, Logan had no idea whether the computers searched belonged to someone with any `affiliation with the military at all.’ Instead, it was his `standard practice to monitor all computers in a geographic area,’ here, every computer in the state of Washington.

Logan's further investigation into Dreyer's specific computer and identity also was not reasonably limited to searching for crimes that `significantly affect the naval establishment.’ SECNAVINST 5430.107(3)(c), 7(b)(2). Logan testified that RoundUp displays the geographic location of the IP address `within a 25– to 30–mile radius.’ The screen shot for Logan's search shows that RoundUp identified the geographic location for Dreyer's IP address as Federal Way, Washington. Logan did not report at the evidentiary hearing on the suppression motion or at trial that he chose to pursue that IP address based on this geographic identification.

Logan did write in his administrative subpoena request that the `Suspect IP was identified in area of large DOD and USN saturation indicating likelihood of USN/DOD suspect.’ But the record contains no evidence establishing any meaningful military `saturation’ of the area at issue. Although the government represents that Federal Way, Washington is located within thirty miles of several military installations, it also is . . . near both Seattle and Tacoma, as well as much of the surrounding metropolitan areas. The three-thousand-square-mile area circling Federal Way -- the approximate area of a circle with a thirty-mile radius -- encompasses much of the state's civilian population. That Logan ended his investigation once he confirmed Dreyer had no current military affiliation is of no matter; his overly broad investigation until that point had already exceeded the scope of his authority.

The government's position that the military may monitor and search all computers in a state even though it has no reason to believe that the computer's owner has a military affiliation would render the PCA's restrictions entirely meaningless. To accept that position would mean that NCIS agents could, for example, routinely stop suspected drunk drivers in downtown Seattle on the off-chance that a driver is a member of the military, and then turn over all information collected about civilians to the Seattle Police Department for prosecution.

U.S. v. Dreyer, supra (emphasis in the original).

The court went on to explain that the “government’s position” that the military can

search the entire civilian population of a state is also inconsistent with a basic principle underlying the PCA and the related statutes and regulations, `a traditional and strong resistance of Americans to any military intrusion into civilian affairs.’ Lairdv. Tatum, 408 U.S. 1 (1972). The PCA was originally enacted on the understandings that `[t]he great beauty of our system of government is that it is to be governed by the people,’ and that if we use the `military power . . .  to discharge those duties that belong to civil officers and to the citizens,’ we `have given up the character of [our] Government; it is no longer a government for liberty; it is no longer a government founded in the consent of the people; it has become a government of force.’ 7 Cong. Rec. 4247 (1878) (remarks of Sen. Benjamin Hill).

Consistent with those fundamental premises, DoD policy warns against an expansive reading such as the one espoused by the government here: Directive 5525.5 specifically notes that the independent military purpose exception `must be used with caution, and does not include actions taken for the primary purpose of aiding civilian law enforcement officials or otherwise serving as a subterfuge to avoid the restrictions of’ the PCA. DoDD 5525.5, Enclosure 4, E.4.1.2.1.

The lack of any reasonable connection between the military and the crimes Logan was investigating separates this case from those in which we have applied the independent military purpose exception. In U.S. v. Hitchcock . . . the defendant `sold LSD to Lake, a U.S. Marine, who was . . . selling LSD to other military personnel’ on his base. . . . NCIS agents participated in the investigation ` to determine whether [the defendant] had sold drugs to other military personnel besides Lake.’ . . . U.S. v. Hitchcock, supra. Hitchcock held the independent military purpose exception applicable because the military participation was justified to `determin[e] the extent to which [the defendant's] LSD was being used and distributed on the military base’ in violation of the Uniform Code of Military Justice, and to help `”maintain law and order on a military installation.”’ U.S. v. Hitchcock, supra (quoting DoDD 5525.5, Enclosure 4, E4.1.2.1.3). And U.S. v. Chon, supra applied the exception where NCIS agents were investigating the theft of military equipment from a Naval facility, and so were acting with `the independent military purpose of recovering military equipment.’ U.S. v. Chon, supra. 

Thus, we hold Agent Logan's broad investigation into sharing of child pornography by anyone within the state of Washington, not just those on a military base or with a reasonable likelihood of a Navy affiliation, violated the regulations and policies proscribing direct military enforcement of civilian laws.

U.S. v. Dreyer, supra.

The Court of Appeals then took up the issue of whether the violation required the suppression of evidence, as Dreyer argued.  U.S. v. Dreyer, supra.  After reviewing the facts, it held that

we have here abundant evidence that the violation at issue has occurred repeatedly and frequently, and that the government believes that its conduct is permissible, despite prior cautions by our court and others that military personnel, including NCIS agents, may not enforce the civilian laws. Accordingly, we find that the district court erred in denying Dreyer's motion to suppress.  

U.S. v. Dreyer, supra.  The Court of Appeals therefore reversed the District Court Judge’s denial of Dreyer’s motion to suppress and remanded the case for further proceedings.  U.S. v. Dreyer, supra.  The news story you can find here provides a few more details of the case.

The "High-Level Security Employee," Emails and Murder

This post examines an opinion the Appellate Court of Illinois issued recently: Regions Bank v. Joyce Meyer Ministries, Inc., 2014 IL App (5th) 130193 (2014). As the court explains in the opening sentence of its opinion, the plaintiff in the civil suit,

Regions Bank, d/b/a Regions Morgan–Keegan Trust (“the Bank”), as independent administrator of the estates of Sheri Coleman, Garett Coleman, and Gavin Coleman, appeals from an order of the circuit court of Monroe County dismissing with prejudice its claims against the defendant, Joyce Meyer Ministries, Inc., on the ground that the plaintiff failed to state any claim upon which relief could be granted.

Regions Bank v. Joyce Meyer Ministries, Inc., supra.  As I have noted in earlier posts, and as Wikipedia explains, a motion asserting that the plaintiffs’ Complaint fails to state a claim upon which relief can be granted is how lawsuits with

insufficient legal theories underlying their cause of action are dismissed from court. For example, assault requires intent, so if the plaintiff has failed to plead intent, the defense can seek dismissal by filing a . . . motion. `While a complaint . . . does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).’ Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). . . .  

Regions Bank v. Joyce Meyer Ministries, Inc., supra.  Wikipedia is referring to a motion brought under Rule 12(b)(6) of the Federal Rules of Procedure while the motion in this case was brought under Illinois Code of Civil Procedure 5/2-615, but the process is the same under both. Regions Bank v. Joyce Meyer Ministries, Inc., supra. You can, if you are interested, read more about how § 5/1-615 works in the article you can find here.

The lawsuit arose from these events (and allegations):

In May 5, 2009, Sheri Coleman and her young sons, Garett Coleman and Gavin Coleman . . . were murdered in their home in Columbia, Illinois. Christopher Coleman, the husband of Sheri and the father of Garett and Gavin, was charged with and subsequently convicted of the murders. He was sentenced to life in prison without the possibility of parole for these crimes. On May 5, 2009, and for more than eight years prior, Christopher Coleman had been employed in high-level security positions by Joyce Meyer Ministries, Inc. It is alleged that in the months leading up to the murders, Coleman used his work computer to email death threats directed at himself, the decedents, and Joyce Meyer Ministries, Inc.

Regions Bank v. Joyce Meyer Ministries, Inc., supra.  You can, if you are interested, read more about the murders here and here.

The court goes on to explain that on May 4, 2011, the Bank filed a Complaint for

wrongful death against Christopher Coleman, Joyce Meyer Ministries, Inc. (JMM), Joyce Meyer, and Daniel B. Meyer. Christopher Coleman has not entered an appearance in this case. . . . Joyce Meyer and Daniel Meyer were voluntarily dismissed . . . pursuant to a stipulation by the parties.

JMM entered its appearance and filed a motion to dismiss the counts against it pursuant to section 2–615 of the Code of Civil Procedure (Code) . . on the ground that the plaintiff failed to state any claim upon which relief could be granted. The trial court granted JMM's motion, but permitted the plaintiff to amend the complaint.

Regions Bank v. Joyce Meyer Ministries, Inc., supra.  

The Bank filed an amended complaint that contained “three counts” against

JMM. Count III alleges wrongful death under a theory of a negligent undertaking to protect the decedents from threatened harm. Count IV is the corresponding survival action. Count V is brought under a theory of negligent retention of the employment of Christopher Coleman. JMM renewed its motion to dismiss all counts under section 2–615 of the Code for failure to state any claim upon which relief could be granted. . . .

JMM argued that count III should be dismissed because it did not allege sufficient facts to establish that JMM undertook to protect the decedents from the harmful acts of a third party, and count V should be dismissed because the plaintiff did not allege a logical connection between retaining Christopher Coleman as an employee and his murderous acts. After considering the briefs and arguments of counsel, the trial court granted JMM's motion and dismissed counts III, IV, and V of the first amended complaint with prejudice.

Regions Bank v. Joyce Meyer Ministries, Inc., supra.  

The Bank appealed, claiming “the first amended complaint contains sufficient allegations of fact to establish duties owed by JMM to the decedents under theories of a voluntary undertaking and negligent retention.”  Regions Bank v. Joyce Meyer Ministries, Inc., supra.  The Appellate Court began its analysis of the appeal by noting that a “cause of action should not be dismissed under section 2–615 unless it is clearly apparent that no set of facts can be proved that would entitle the plaintiff to recover.”  Regions Bank v. Joyce Meyer Ministries, Inc., supra.  

The court began its analysis of that issue by noting that the claims against JMM

are negligence-based. In order to state a cause of action for negligence, a complaint must allege sufficient facts to establish the existence of a duty of care owed by the defendant to the plaintiff, a breach of the duty, and an injury proximately caused by the breach. Bajwa v. Metropolitan Life Insurance Co., 208 Ill.2d 414, 804 N.E.2d 519 (Illinois Supreme Court 2004). Whether a duty exists is a question of law for the court to decide. Bajwa v. Metropolitan Life, supra. Whether a duty was breached and whether the breach was a proximate cause of the plaintiff's injuries are questions of fact for a jury to decide. Bajwa v. Metropolitan Life, supra.

Regions Bank v. Joyce Meyer Ministries, Inc., supra.  If you are interested, Wikipedia explains more about the role of “duty” in negligence claims.

The Appellate Court began its analysis of the existence of a duty by noting that

we consider whether the factual allegations in count III are sufficient to establish JMM voluntarily undertook to protect the decedents from the criminal acts of a third person. Ordinarily, a person has no affirmative duty to protect another from harmful or criminal acts by a third person. Hills v. Bridgeview Little League Ass'n, 195 Ill.2d 210, 745 N.E.2d 1166 (Illinois Supreme Court 2000). Exceptions to this general principal have been recognized: (1) when the parties are in a `special relationship,’ i.e., common carrier-passenger, innkeeper-guest, business invitor-invitee, or voluntary custodian-protectee, and the harmful or criminal acts were reasonably foreseeable; (2) when an employee is in imminent danger and this is known to the employer; (3) when a principal fails to warn an agent of an unreasonable risk of harm involved in the agency; and (4) when there is negligence in the performance of a voluntary undertaking. Petersen v. U.S. Reduction Co., 267 Ill.App.3d 775, 641 N.E.2d 845 (Appellate Court of Illinois 1994). The voluntary-undertaking exception is at issue here. In Illinois, this exception has been narrowly construed and the duty imposed is limited by the extent of the undertaking. . . .

Regions Bank v. Joyce Meyer Ministries, Inc., supra.

It also noted that § 323 of the Second Restatement of Torts, which has “been recognized in Illinois,” addresses “liability on a voluntary undertaking to render services to another.” Regions Bank v. Joyce Meyer Ministries, Inc., supra.  Section 323 provides as follows:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care increases the risk of such harm, or

(b) the harm is suffered because of the other's reliance upon the undertaking.

The Appellate Court went on to explain that a plaintiff’s complaint can allege

nonfeasance or misfeasance in the performance of a voluntary undertaking. Bourgonje v. Machev, 362 Ill.App.3d 984, 841 N.E.2d 96 (Illinois Appellate Court 2005). In the case of `nonfeasance,’ a plaintiff must allege facts to indicate (a) that the defendant voluntarily undertook to render services necessary for the protection of another person or took charge of another person's protection; (b) that the defendant failed to exercise reasonable care in that it wholly failed to perform the undertaking; and (c) that harm was suffered because of the other person's reliance on the defendant's undertaking. . . .

In the case of `misfeasance,’ a plaintiff must allege facts to indicate (a) that the defendant voluntarily undertook to render services necessary for the protection of another person or took charge of another person's protection; (b) that the defendant negligently performed the undertaking; and (c) that the defendant's negligence increased the risk of the harm to the other person or that the plaintiff suffered harm due to his reliance on the undertaking. See Wakulich v. Miraz, 203 Ill.2d 223, 785 N.E.2d 843 (Illinois Supreme Court 2003).

Regions Bank v. Joyce Meyer Ministries, Inc., supra.

The Appellate Court then analyzed the Complaint at issue here, in light of the principles outlined above.  It explained that the Complaint “generally alleges” that JMM employed

Christopher Coleman in high-level security positions from November 2000 through May 5, 2009; that during the period of [his] employment, JMM enacted an electronic communications policy (E–Comm policy) which governed its employees' use of its electronic communications systems and equipment; that JMM's E–Comm policy prohibited its employees from sending or viewing inappropriate, obscene, harassing, or abusive images, language, and materials on its electronic communications systems and equipment; that pursuant to the E–Comm policy, JMM reserved the right to monitor and inspect communications sent, received, and stored on its electronic communications systems and equipment; and JMM `management’ had the sole discretion to take disciplinary action against the violators of said policy.

It also alleges that from November 14, 2008, to May 5, 2009, Christopher Coleman created and transmitted via email harassing notes and death threats directed to himself, the decedents, and JMM, using his company-issued computer; that from November 14, 2008, to May 5, 2009, [he] created harassing notes and death threats directed to himself and the decedents, which were hand-delivered to the mailbox at the Colemans' home; and that prior to May 5, 2009, JMM was aware death threats had been made against Christopher Coleman and the decedents, and the death threats had been delivered to the Colemans' home and through Christopher Coleman's email account. . . .

Regions Bank v. Joyce Meyer Ministries, Inc., supra.

As to the Complaint, the Appellate Court explained that Count III alleges that

JMM recognized or in the exercise of reasonable care should have recognized that in light of life-threatening email, the provision of security services was necessary for the protection of the decedents. It further alleges that JMM undertook, gratuitously or for consideration, to provide security services for the protection and safety of the decedents, which included:

(a) monitoring, accessing, and inspecting communications sent, received, and stored on its electronic communications equipment, and conducting any necessary follow-up investigation regarding the content and source of those communications;

(b) taking disciplinary actions against the violators of its policy;

(c) stationing security at or around the decedents' residence;

(d) installing a security alarm and surveillance equipment at the decedents' residence; and

(e) monitoring and/or informing the local authorities of the numerous death threats made against the decedents.

Count III further alleges that JMM breached one or more of the aforementioned duties in that it:

(a) failed to monitor, access, inspect, disclose, and conduct a follow-up investigation on the numerous death threats made against the decedents that were transmitted, received, or stored on JMM electronic communications equipment;

(b) failed to take necessary disciplinary action, including termination, regarding the death threats made against the decedents that were transmitted, received, or stored on JMM electronic communications equipment;

(c) failed to provide security in and around the decedents' residence after numerous death threats were made against the decedents;

(d) failed to monitor the decedents' residence and/or failed to install surveillance equipment in or around the residence after numerous death threats were made against the decedents; and

(e) failed to inform law enforcement authorities of the numerous death threats made against the decedents.

Regions Bank v. Joyce Meyer Ministries, Inc., supra.  It also noted that Count III

alleges that JMM's negligent performance of one or more of the aforementioned voluntary undertakings resulted in an increased risk of harm to the decedents, and that JMM's failure to perform one or more of the aforementioned voluntary undertakings resulted in harm to the decedents who, in reliance upon JMM's promises, failed to take precautions for their own protection.

Regions Bank v. Joyce Meyer Ministries, Inc., supra. 

The Appellate Court then concluded that

[w]hen pared to the core, count III alleges that JMM voluntarily undertook to investigate the source of the death threats directed at the decedents, which were made or received through JMM's electronic communications systems and equipment, and to provide security at the decedents' home for the protection of the decedents; that JMM failed to perform or negligently performed these undertakings; and that JMM's negligent acts or omissions increased the risk of danger to the decedents.

In our view, the factual allegations and the reasonable inferences therefrom, when liberally construed and taken in a light most favorable to the plaintiff, are sufficient to establish a duty of care owed by JMM to the decedents under a voluntary-undertaking theory.

Regions Bank v. Joyce Meyer Ministries, Inc., supra. 

It  also found that Count III “adequately” alleged that

negligent performance of its voluntary undertaking increased the risk of harm to the decedents. Accepting the allegations as true, it may be reasonable to infer that JMM increased the risk of harm to the decedents by failing to conduct an adequate investigation of its own communications systems and equipment, essentially electing to remain ignorant of facts concerning the source of the threats, when a reasonable person may have conducted an internal investigation of its systems and equipment. It may also be reasonable to infer that Sheri Coleman did not have an equal and independent means to investigate the threats, and that Sheri Coleman, relying on JMM's promises to investigate the threats and to provide security, did not take steps to protect herself and her children from the threatened harm.

Regions Bank v. Joyce Meyer Ministries, Inc., supra. 

The Appellate Court therefore held that Count III contained “sufficient allegations” of

act to state a cause of action for wrongful death based on a voluntary-undertaking theory and should not have been dismissed. It follows that count IV, the corresponding survival claim, should not have been dismissed. We pause here to note that we are only deciding a procedural issue and that neither party should take our resolution of this issue as a measure of the merits of the case.

The allegations in count III are broad and the plaintiff will have to present evidence to support them. If the plaintiff can produce evidence to support its factual allegations, the finderof fact will be asked to determine whether JMM breached a duty it undertook to provide to the decedents, and if so, whether the breach was a proximate cause of the harm.

Regions Bank v. Joyce Meyer Ministries, Inc., supra. 

The Appellate Court also found that after reviewing the allegations in Count V,

we conclude it lacks sufficient factual allegations to establish that the negligent retention of Christopher Coleman as a JMM employee was a substantial factor in bringing about the harm to the decedents. Count V does not set forth sufficient factual allegations to establish that Coleman's misuse of his position of employment was a substantial factor in bringing about the harm to the decedents. Nor does it set forth sufficient allegations of fact to establish that Coleman's misuse of the employer's chattel, a computer, was a substantial factor in bringing about the harm to the decedents.

The allegations that Christopher Coleman was particularly unfit for his management position in the security department, that his particular unfitness created a danger of harm to third persons, including the decedents, and that JMM breached its duty in retaining Coleman when it should have reasonably appreciated that Coleman's continued employment posed a risk of harm to the decedents and others, are conclusions unsupported by any specific facts. 

Regions Bank v. Joyce Meyer Ministries, Inc., supra. 

The Appellate Court therefore held that the trial judge’s

decision to dismiss count V with prejudice is affirmed, and its decision to dismiss counts III and IV is reversed. Counts III and IV are hereby reinstated and the cause is remanded for further proceedings consistent with this decision.

Regions Bank v. Joyce Meyer Ministries, Inc., supra.