This is loosely based on an incident in high school many years ago.
What I wondering is if anybody committed a crime, or even if no crime,
is there any civil liability?  The two students involved are a Hall
Monitor (HM) and a "regular" student (ST).

ST is in the hall about 5 minutes after the period started (reason is
legit, but he has no hall pass or note from the faculty or staff with
whom he was meeting).   HM stops him and asks for a pass; ST tells HM
he doesn't have one, that he was coming from a meeting with whoever,
and is going directly to his next class.  HM tells ST that he's going
to take him to the office.  ST tells HM he's just going to continue to
his class, and at some point HM initiates physical contact.  There is
an altercation and ST is injured.   When both stories are put
together, what's agreed to is that ST ignored HM, HM initiated
physical contact to force ST's compliance, ST attempted to break the
hold, and HM escalated his level of force in response to ST's
resistance until ST was injured.  ST's parents inform the principal
that they're going to sue HM, HM's parents, and the school, as well as
press criminal charges against HM.

Now comes the monkey wrench (and this actually occurred in the
incident this scenario is based on).  It turns out that the HM faculty
advisor (aka the football coach) has told the HM's (aka the football
team; they serve as HM's during the time that would otherwise be in
their PE class) that they may use physical force to gain compliance.
Given this additional info-

1.  Will HM probably be acquitted on the assault and battery charge if
it goes to trial?
2.  Has the faculty advisor committed a crime by pre-approving this
HM's use of force?
3.  Does this relieve HM of liability for ST's injuries (medical costs
and pain_and_suffering)?
4.  Does this add to the liability of the school because their
employee authorized the assault?
5.  Would this typically result in punitive damages against the school?

On May 4, 8:41 pm, Stan K <stanle...@hotmail.com> wrote:

[Hall Monitor stopped Student from walking away and ignoring HM, using
physical force that injured Student]

The hall monitors are not duly deputized law enforcement officers.
Therefore, they had no such right.   The State has a monopoly on the
use of force, and does so only through properly authorized and trained
LEOs.  Even they can be liable if they use _excessive_ force.   These
hall monitors probably had no training whatsoever in what degree of
force was appropriate in certain situations, how to apply force
without unnecessary injury, and so on, as LEOs are trained to do.

Probably not, if the evidence shows he intentionally struck Student.
He did not have any legal authorization to do so, and ignorance of the
law (the belief that he _did_ have such authorization, from "coach")
is no excuse.   He exceeded his actual authority, and even an actual
cop who does that (and who also may well believe he is acting properly
in restraining a perp) can be charged and convicted of assault.

What crime?   It's not up to us to guess what he might be charged
with, unless you ask us to play the role of prosecutor.   Being an
idiot is not a crime.   I can't think of any specific criminal charge
I would bring against the coach, but faculty discipline (or firing) is
a far more likely remedy.

How?   A civil suit for damages has nothing to do with whether
criminal charges are viable or not.   The tort of battery exists
whenever a person touches the person of another, without the other's
consent, in a harmful or offensive manner.   It is an "intentional"
tort, meaning, all that is necessary to prove liability is that the
touching occurred, that it was harmful or offensive, and that the
defendant _intended_ to do it.   "Intent" does not only refer to
purpose or motive, but includes consciously taking some action (such
as swinging one's fist in a certain direction, frex) _knowing_ that it
will, or likely will, have certain consequences (coming into contact
with the victim's nose, frex).

Probably yes.   The employment and/or agency relationship may make the
school vicariously liable both for what the coach did, and for what
the hall monitors did (the HMs were "agents" of the school even if
they were not "employees").   Alternatively, it may make the school,
and the coach, liable on a theory of negligence (in that they knew or
should have known not to tell the hall monitors to "swing away" to
stop a student).

If the school is found vicariously liable for the hall monitor's
battery tort, quite likely so.   Not likely, if the school is found
liable merely for negligence in instructing the hall monitors as to
their rights and duties.

--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
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Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
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Stan K  <stanle...@hotmail.com> wrote:
[Hall Monitor(HM) sees student (ST) in the hall during class.  HM uses
physical force to detain ST, and ST is injured.]

Probably not(*).  HM used physical force on ST, probably without legal
justification.  Of course, there's no telling what a jury will do --
you could get a pro-police jury that isn't going to convict on a
situation like that no matter what.

Maybe, maybe not.  It depends on the circumstances.  THe faculty
advisor probably has "plausible deniability": he can claim that the
approval to use physical force was intended only to apply to situations
where HM did in fact have a right to detain ST (which probably isn't
this one).

No.  "I vas only followink orders" is not an excuse.(*)

Maybe.  I think that HM was already acting as an agent of the school,
so the school would be liable if HM was.(*)

It would if I were on the jury.(*)

(*) The courts have been creating more and more exceptions for schools
and Peace Officers to use physical force.  It's gotten so hard to win
even a civil case against them that the exclusionary rule is about the
only protection we have left.  So it's possible that a judge might
create some sort of "right" for the HM to use physical force on behalf
of the school, as a sort of junior Peace Officer or something.  If so,
all the above reasoning doesn't apply.

This is for discussion purposes only, and is not legal advice.  I'm
not a lawyer.  If you want legal advice, hire a lawyer.

--
Barry Gold, webmaster:
   Conchord:  http://www.conchord.org
   Los Angeles Science Fantasy Society, Inc.: http://www.lasfsinc.org
   blog: http://goldslaw.livejournal.com/

 BG> (*) The courts have been creating more and more exceptions for schools
 BG> and Peace Officers to use physical force.  It's gotten so hard to win
 BG> even a civil case against them that the exclusionary rule is about the
 BG> only protection we have left.

Barry, how would you explain this trend? These days, almost daily there's
another article on another blog about another police brutality, followed by
some hundreds of comments, about 90% condemning the police; yet, in the
courtroom it's the other way around, like the judges and jury are totally
different crowd, and like attorneys for the defense are totally helpless.
Even assuming that the prosecution picks the jury, doesn't the defense do
the same? and you are saying that it's getting harder. Why?

Because the higher courts (esp. SCOtus) have ruled that, even if you
win a jury verdict, it will be overturned if the officer had a "good
faith" belief that he was doing the right thing, or in some cases
simply that there wasn't an _existing_ court decision saying he
couldn't do that.

You can almost always find some detail in which (the current case)
differs from (previously decided case), so the lawyers for the cop
(and the PD and city or State) will claim that the cop wasn't "on
notice" that his misbehavior was wrong.

Note that this is a major departure from, e.g., the 1960s.  Back then,
the higher courts were likely to find in favor of those who had been
maltreated by cops, and send an unfavorable verdict back to lower
court based on some error by the trial judge.  Now, it's the other way
around: you can win in lower court and have the whole thing thrown out
at the appellate level.
--
Barry Gold, webmaster for:
   Conchord:  http://www.conchord.org
   Los Angeles Science Fantasy Society: http://www.lasfsinc.org
   My blog: http://goldslaw.livejournal.com/

On 5/19/2010 4:36 PM, Barry Gold wrote:

Question: How do you get out of the Catch-22 issue where "LEO does X.
There was no existing court decision saying X was wrong, even though it
is very obvious that it's wrong (maybe no-one has actually done X before
and there's no law that quite covers X but yet we can clearly see that X
is just absolutely unspeakable in polite society. Strip and
cavity-searching a 5yo girl by a male principal might fit under this.)
So we can't say LEO is guilty since there was no prior case saying he
couldn't do that"?

Can a court say "X is wrong. We won't find this particular defendant
guilty/liable due to lack of precedence. However, be on notice that if
anyone else does it, we will hold them accountable"? I.e. can the court
have a finding that "X is wrong" and yet also hold that "Y is not guilty
of/liable for X" in the same case?

On May 19, 4:36 pm, bg...@nyx.net (Barry Gold) wrote:

That's the concept of "qualified immunity" as most recently enlarged
and extended to shield crooked cops.

Which, of course, simply encourages the sadistic or power-hungry cop
to find creative _new_ ways to beat people up.

Barry's right, and let me add that in addition to a much tougher
qualified-immunity attitude toward police-brutality claims now in the
highly conservative US Supreme Court (and many of the circuits, esp.
the extremely conservative 4th Cir whose bailliwick includes Maryland,
Virginia, and the other Piedmont/tobacco states of the Southeastern
Seaboard), SCOTUS has also thrown a monkey wrench into such cases (and
_many_other_ types of claims) with the recent _Iqbal_ and _Twombly_
decisions (look 'em up - they're easy to find) in terms of the degree
of specificity of pleading which a plaintiff must meet, or risk being
thrown out before he even puts on (or gathers in discovery) a lick of
evidence.   In other words, if the facts showing culpability of the
defendant are known only to the defendant, there is now almost no way
for the planitiff to overcome that hurdle and successfully sue.   Talk
about your incentives for potential defendants to sabotage the ideal
of transparency in government, sunshine laws, and open records laws.
The better corrupt or bigoted officials are at hiding their crimes,
the more likely they are to get away with them.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685      (fax) 410-740-4300

In article <ht602j$cp...@news.eternal-september.org>,

Generally, a lower court says "LEO is guilty" and a higher court says
"Because that specific issue has not been litigated before, LEO might
not have known it wasn't allowed, so that particular LEO gets off this
time."

I don't know if a single court can do that, but I'd think it could.
(However, it would still be better for it to happen as above, if
nothing else because the appeals court is likely to have a larger area
where it is determinative.)

Seth

Generally, a lower court does NOT find LEO is guilty.  The doctrine of
qualified immunity means the officer does not have to stand trial at all
unless the immunity hurdle is met.  For the purposes of deciding such a
motion (and for no other purpose), the plaintiff's claims are assumed to be
true.  This might not be true after Twombly and Iqbal, but they're true
enough for the moment.  The court isn't required to accept pure
speculations, allegations of conspiracy or fraud, or outright absurdities as
true.

However, given the claim of the plaintiff, if the conduct alleged is *not* a
violation of "clearly established law," the case is dismissed.  Period.  On
top of that, if the officer loses, the officer may *immediately* take the
issue to the appeals court.  This is unlike most failures at a motion to
dismiss, where only after the trial (or after the judge changes her mind) do
you get another bite at the apple.

The doctrine of immunity means the case is simply beyond the court's
jurisdiction and must be dismissed.

This means that a case doesn't get to violate "clearly established law"
unless it already does, and if it hasn't, this won't be found until a court
rules on it.  So how does a court rule on it if it has to throw the case out
if it isn't already?

Sometimes, an appeals court will uphold a dismissal on the "not clearly
established law" grounds, but then go on to find that the behavior was a
violation of a constitutional right.  Since this doesn't affect either of
the parties to the suit, this ruling is superfluous to the actual case and
some argue that it's a purely advisory opinion, which is not allowed.

But since there would otherwise be no way to "clearly establish" law, the
courts tolerate this irrationality.  What they should do is simply do away
with this doctrine in its current form, since it's a cumbersome, stupid way
to do things and leads to great injustice:  after all, what is the moral
difference between someone who has had their rights violated if the one cop
who did it was just lucky enough to have done it one day before some Circuit
Court of Appeals decides it's now "clearly established," and the plaintiff
in *that* case has his case thrown out anyway.

One plaintiff may win big, and the other gets the shaft.  Meanwhile, the one
who gets the shaft is the one who actually "clearly established" that this
behavior is illegal, and he (or his lawyer) is the one who laid out all the
legal capital to accomplish this.  It's just not fair.  It also discourages
such litigants from even trying.  A cynical person would suggest this is
exactly *why* the conservative Justices have crafted this ridiculous Rube
Goldberg operation.

The two leading cases on this issue are Saucier v. Katz and Hope v. Pelzer
(on how the violation doesn't have to be *exactly* like a previous violation
to be "clearly established").  Also there's a lot of argument as to whether
"clearly establishing" things like this is advisory opinion, much of it in
law journals.