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Posts Tagged ‘personal property’

Antisocial Media: Court Critical of Cop Capturing Curious Citizen’s Cellphone

Posted on: April 23rd, 2018

By: E. Charles Reed, Jr.

The Eleventh Circuit Court of Appeals has held that a police officer violates clearly established law by seizing a bystander’s cellphone at an accident scene in the absence of exigent circumstances.

With the rise of social media and the availability of devices with cameras, newsworthy events and potential evidence of criminal or civil liability can be captured by citizens with fortuitous timing and cellphones. While the methodology of capturing potential evidence has changed, constitutional principles associated with law enforcement’s gathering of that evidence has not. One law enforcement official recently learned this lesson the hard way in Crocker v. Beatty, 2018 U.S. App. LEXIS 8290 (Apr. 2, 2018).

In May 2012, Deputy Steven Beatty arrived at an accident scene involving an overturned SUV.  By the time Beatty had arrived, several bystanders, including a citizen named James Crocker, had taken photographs and video of the scene with their cell phones. Crocker captured images of empty beer bottles, the overturned vehicle and emergency personnel, but no images of the persons involved in the accident. Beatty approached Crocker, took his cellphone and instructed him to leave the area and wait for instructions about when his phone would be returned. Crocker refused to leave and offered to delete the footage in return for his phone. Instead, Beatty placed Crocker under arrest for resisting an officer without violence.

On appeal at the summary judgment stage, the Eleventh Circuit affirmed the trial court’s denial of qualified immunity for Beatty. First, the court rejected the argument that Beatty’s seizure was justified by exigent circumstances because Crocker was a non-suspect bystander with no motive to delete any photographs. The fact that Crocker’s cellphone could later be lost did not create an exigency.

More importantly, the Court held that the right to be free from warrantless seizures of personal property was established with “obvious clarity” in May 2012 such that Beatty should have known his conduct violated federal law. “Our case law has sent a consistent message, predating 2012, about the warrantless seizure of personal property and how exigent circumstances may arise. The technology of the iPhone simply does not change our analysis. To hold otherwise would deal a devastating blow to the Fourth Amendment in the face of sweeping technological advancement. These advancements do not create ambiguities in Fourth Amendment law; the principles remain as always. Because of this, Beatty is not entitled to qualified immunity.”

The Court did not address, and may not have been presented with, the policy implications for agencies responding to mass-casualty or critical incidents in metropolitan centers – where hundreds of witnesses may be present, each with different video clips taken at different times and from different angles.  However, the takeaway from this case is while technology may push products further and further into the future, the prudent law enforcement officer will apply the legal authority of the past to minimize being held liable for his or her actions.

Charles Reed is member of Freeman, Mathis, & Gary’s Government Section and regularly defends government employees in in civil rights cases.  He can be reached at [email protected] or by phone at 678-399-6351.

Devil Wine not a “Peril Insured Against”

Posted on: April 3rd, 2018

By: Eric P. Benedict

A California Appellate Court recently ruled that a wine dealer’s fraud was not covered under a collector’s “Valuable Possessions” property insurance policy after the collector discovered that millions of dollars in “rare” wine bottles were sold to him under false pretenses.  Over several years, David Doyle purchased nearly $18 million in what he believed to be rare, vintage wine from Rudy Kurniawan. Instead, Kurniawan had been selling Doyle his own blend, disguising it as various rare vintages. In 2013, Kurniawan was convicted of fraud and sentenced to 10 years in prison. Doyle was left with a storage facility filled with nearly-worthless wine. Doyle then filed a claim with his insurance carrier under a “Valuable Possessions” policy with a blanket limit of $19 million. In pertinent part, the policy insured against “direct and accidental loss or damage to covered property caused by an ‘occurrence.’” After the carrier denied coverage because there was no covered “loss” under the policy, the collector filed suit against the carrier for breach of contract. Doyle argued that the policy provided coverage for all insurable risks, “whether anything physical happened to the wine or not.” In response, the carrier argued that no “loss or damage to covered property” occurred because the wine was in the exact same condition that it was when it was first insured.

In Doyle v. Fireman’s Fund Insurance Company, the Court of Appeal of California agreed with the carrier and the trial court concluding that Doyle’s claim was not covered by his “Valuable Possessions” property insurance policy because the wine did not sustain any physical loss or damage. After noting that valuable goods such as rare wine were otherwise covered under the policy, the Court explained that the fraud was not a “peril insured against” under the policy. In the Court’s words, “the wine collector is stuck with the devil wine without recompense. A Shakespearean tragedy, to be sure.”

The Court of Appeal of California explained that because property insurance is, by definition, insurance of property, the “threshold requirement for a recover under a contract of property insurance is that the insured property has sustained physical loss or damage.” The Court reasoned that in the property insurance context, the word “loss” does not include claims where the insured “merely suffers a detrimental economic impact.” According to the Court, under the terms of the policy, the carrier was not insuring Doyle’s financial health or his unrealized expectations about the “vintage” wine he had amassed. The Court went on to explain that when the Doyle purchased the wine, it was already counterfeit and it remained counterfeit from the day he insured it through the day he filed his claim. Thus, no loss had occurred.

The Court then clarified that while diminution in value may be a measure of loss in the property insurance context, it is not a covered peril in and of itself. This case highlights the important distinction between covered property and covered perils in the property insurance context. While Doyle sought to insure his property against some perils, such as theft, abnormal spoilage, or fire, he was not covered by his property insurance for Kurniawan’s fraud or Doyle’s own failed investment. While Doyle claimed that the absence of a fraud exclusion in the policy evidenced coverage, the Court noted that it did not need to analyze the absence of a fraud exclusion, because the collector failed to carry his initial burden of showing that the occurrence was within the basic scope of insurance coverage.

With sympathy for consequences of Kurniawan’s actions, the Court quoted Shakespeare’s Othello and reminded Doyle that “the robbed that smiles steals something from the thief.”

If you have any questions or would like more information, please contact Eric Benedict at [email protected]