Posts about Law

As Michael explained 3 years ago, WMATA is basing this decision on a 2 DC district court cases, Judicial Watch, Inc. v. United States Department of Justice and Electronic Privacy Information Center v. Department of Defense, where courts denied "news media" status to these organizations in 2000, 2002 and 2003.

WMATA's Public Access to Records Policy (PARP) says that it follows the federal FOIA, meaning that this law clarifying FOIA also applies to WMATA's PARP.

The WMATA denial, which just copies the previous one from 2009, claims that, "A representative of the news media must itself disseminate the information not merely make it available."

But, as Michael Perkins notes, the Open Government Act of 2007 clarified a broader interpretation of "news media" as:

any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.

And:

These examples [newspapers and broadcast radio or television] are not all-inclusive. Moreover, as methods of news delivery evolve (for example, the adoption of the electronic dissemination of newspapers through telecommunications services), such alternative media shall be considered to be news-media entities.

Greater Greater Washington "disseminates" information via the web, email, Twitter and other means. Some people, like the subscribers to our daily email, do get it "delivered" directly (though electronically), while others request the information via the web. Newspapers today also do the same; some people get a copy on their doorstep, others get a daily email, while others go to the website.

Back in 2009, the media relations team wasn't sure they should talk to blogs such as Greater Greater Washington, but since then, that group has started to treat us as "news media" and help answer questions that will go into articles. Perhaps they should speak with the legal department.

If you can help us formulate a more detailed legal argument to make to WMATA and, if they don't see the light, pursue the matter in the courts, please email info@ggwash.org.

Here is the full text of their email from Keysia Thom at WMATA:

Dear Mr. Perkins,

This acknowledges receipt of your request for a copy of the survey, results, and weights used by the JCC to determine the fare model for the Metrorail rider survey. This also responds to your request for a fee waiver and requires an advance payment by May 16, or your request file will be closed. Your request is being processed pursuant to the Public Access to Records Policy (PARP), which can be viewed on our website at http://www.wmata.com/about_metro/public_rr.cfm, under the section marked, "Legal Affairs." Generally, we aim to issue decisions on a request for records within 20 working days after the date of receipt of the request.

We note that you requested a fee waiver for search time because you are an author for Greater Greater Washington. Pursuant to federal regulations, a representative of the news media is any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. 28 C.F.R. § 16.11 (b)(6) (2012). Examples include television and radio stations broadcasting to the general public, publishers of periodicals that disseminate news to the general public, and freelance journalists who can demonstrate a solid basis of publication through a news organization. Judicial Watch v. United States Dep't of Justice, No. 99-2315, 2000 U.S. Dist. LEXIS 19789 *9-12 (D.D.C. August 17, 2000). Your request consists of a conclusory statement that you are a member of the news media, but does not provide any details about your editorial skills and how you intend to distribute the records to the public at large. We have viewed Greater Greater Washington's website and it appears to be a blog. Judicial Watch, an organization that promotes transparency in government and operates a website that includes news on that topic and its activities (including those reported by the media), has been found not to qualify as a representative of the news media. Judicial Watch v. United States Dep't of Justice, No. 99-2315, 2000 U.S. Dist. LEXIS 19789 *9-12 (D.D.C. August 17, 2000). A representative of the news media must itself disseminate the information not merely make it available. Judicial Watch, Inc. v. United States Dept of Justice, 185 F.Supp. 2d 54, 59 (D.D.C. 2002). For these reasons we have denied your request for a fee waiver under the media category.

...

We estimate that it will cost $261.00 for 3.0 (5 hours of staff time - the first two hours of staff time, which are provided free of charge) to retrieve and review the records that are responsive to your request for exempt material. Please remit a check for the full amount made payable to the Washington Metropolitan Area Transit Authority to my attention by May 16, 2012. The records will be provided as soon as possible after receipt of payment, along with reimbursement of any excess payment or request for additional payment. If we do not receive the payment by May 16, we will close your request file.

According to a brief by the Georgetown Climate Center, "ArrivalStar has brought suit against at least ten transit entities, and at least eight more have received demand letters." GCC, which convenes the Transportation Climate Initiative, worries that the suits can create a chilling effect, discouraging agencies from employing vehicle tracking technologies. Real-time bus arrival information has been shown to increase ridership, taking cars off the road and reducing vehicle emissions.

Jones' strategy is not to sue transit agencies for all they're worth, but to offer them a relatively low-cost way to keep these cases out of court. In fact, not one of his lawsuits has gone all the way through trial. They always end up settling, usually for $50,000 to $75,000, though the demands can go as high as $200,000.

"That's $75,000 of taxpayer money that's going into ArrivalStar's pockets without the validity of the patent ever being challenged," said attorney Babak Siavoshy, who represents the Electronic Frontier Foundation. "If they make the settlement amount low enough, where the costs and benefits favor settling, then most municipalities are going to settle, and it costs them a lot of money, because the cost of litigation is a big stick."

Siavoshy and EFF want the US Patent and Trademark Office to review Jones' patents. EFF is looking for what's known as "prior art": examples of real-time vehicle tracking being discussed before Jones took out the patent, to show that he wasn't the first one with the idea. Advocates also think they can prove that the systems Jones patented were too "obvious" or "non-novel"—that they were logical extensions of existing technology. Abstract ideas, with no technology or product attached, are not patentable.

ArrivalStar attorney Anthony Dowell contends that the patents are defensible and that Jones has the right to seek money from the agencies. "Just because an entity is funded with taxpayer dollars doesn't give them the right to steal property," said Dowell in a recent interview with ArsTechnica. "My client now owns 34 patents that are being infringed, and what else is he to do?"

The transit agencies I called couldn't comment, since the case was pending. But the general counsel of the Monterey-Salinas Transit Corporation, David Laredo, said that they're not challenging the validity of the patents. Their strategy is to assert that the vendor who sold the technology to the transit agency (Trapeze, a spinoff of Siemens) does hold a license from ArrivalStar, and if they don't, that's the vendor's problem, not theirs.

To date, ArrivalStar has reached settlements with the city of Fairfax, Virginia; Boston's MBTA; New York City's MTA; Chicago's Metra; and the Maryland Transit Authority. Suits are pending against the Port Authority of New York and New Jersey's PATH; King County, Washington; the Monterey-Salinas Transit Corporation; the Greater Cleveland Regional Transit Authority; and Portland's TriMet.

In the past, transit agencies may not have talked to each other about these lawsuits because Jones reportedly insists on a nondisclosure agreement as part of the settlement. He only brings a few suits at a time, using a divide-and-conquer strategy, taking care not to demand so much from these public entities that they would pursue litigation.

The recent focus of Jones' lawsuits on transit agencies has inspired Georgetown Climate Center and the American Public Transit Association to get these entities to communicate more and to develop a more cohesive strategy. So far, though, Jones' strategy has been working.

But since Jones brought a suit against the U.S. Postal Service last November, the federal government is now affected. His suit charges the post office with violating his patents with its package tracking services.

Since USPS is a federal agency, the Department of Justice is now involved, defending the post office against ArrivalStar's claims by saying the patents are invalid and that no infringement occurred. Advocates and attorneys are trying to persuade the feds to broaden their interest in ArrivalStar from just USPS to all the transit agencies that have been affected.

After all, the transit agencies, by and large, bought the GPS tracking devices with federal dollars, in pursuit of federal transportation goals. Publicly available real-time transit information—on smartphone apps, transit agency websites, or on screens in bus stops and train stations—makes transit a more attractive option, with the potential to reduce congestion and pollution. SAFETEA-LU, the transportation authorization the country is still (amazingly) working under, specifically requires states to identify ways to deliver real-time transit information to the public.

Georgetown Climate Center Director Vicki Arroyo told Streetsblog that she's had some "early but hopeful discussions" with senior USDOT officials.

"Earlier, some of the more junior people within the federal government were not keen to take this on, saying they didn't have a dog in the fight. Now they do," she said, referring to the suit against the postal service. "We're hoping they won't just look at this as a one-off matter. There's a much higher public stake here."

A version of this article was originally posted at Streetsblog Capitol Hill.

Editor's note: The MBTA's response brief to ArrivalStar rebuts the company's actions with powerful rhetoric that's unusual for a legal filing:

This lawsuit offends any notion of justice. The mission of Defendant Massachusetts Bay Transportation Authority ("MBTA") is to transport its 1.1 million riders safely and on time every day. As a service to the riding public, the MBTA alterts riders via its website, text message or email whether one of its vehicles is running late or has otherwise encountered some difficulty or delay. Though the MBTA is a cash-strapped public entity, its notification service is free of charge to anyone who wishes to subscribe. The MBTA makes no money from this service. The service provides a benefit to the riding public, by whom it has been well received.

Plaintiffs ArrivalStar S.A. and Melvino Technologies Limited (collectively, "Plaintiffs" or "Arrivalstar"), two offshore companies, allege, in a conclusory and unspecified manner, that the technology underpinning the MBTA's alert system infringes on two patents that they claim to own. Plaintiffs do not allege they produce or manufacture anything. They do not allege they sell anything. The primary, if not sole, purpose of Arrivalstar is to exact tribute from any person that Arrivalstar asserts is using inventions claimed in patents that they purport to own, either in the form of royalties or a strike suit such as this one. The Court may take notice of the fifteen suits Plaintiffs, or a related entity, have brought in federal district courts involving the same two patents at issue in this dispute. ...

In any event, the practice of monetizing patents through serial litigation by "non-practicing entities" or "NPEs," as they are euphemistically known, is unseemly and inimical to the fundamental purpose of United States patent laws of encouraging innovation and its introduction into the economy. The business model of Plaintiffs is no less obvious than the patents themselves, and shakedowns such as this one should be outlawed.

The Child Find provision of the Individuals with Disabilities Education Act (IDEA) requires that all states have a comprehensive system "to assure that all children who are in need of early intervention or special education services are located, identified, and referred."

This provision emphasizes the importance of early intervening services since providing services to children before they reach kindergarten "can have a significant impart on a child's ability to learn new skills as well as reduce the need for costly interventions over time" for children with developmental delays and disabilities as well as those with learning disabilities.

While DCPS, including Early Stages for preschool-age children, and DC Charter Schools are responsible for identifying students in need of special education services between the ages of 3 and 21, the Office of the State Superintendent of Education is responsible for identifying all DC residents from birth to age 3 in need of special education services.

Sadly, these obligations to the most vulnerable in the District are still not being met. Testimony in the continuing class action lawsuit, DL v. District of Columbia, demonstrates that DCPS must strengthen several elements needed to have a comprehensive Child Find system. The suit was brought about by 7 families in 2005 "who encountered barriers and delays in securing special education services for which they were eligible".

A judge overseeing the suit ruled last week that DCPS had failed to provide some parents with a timely evaluation, as determined under IDEA. Early Stages staff acknowledged that "at least four patients per day contacted Early Stages 'to report that a Child Find Coordinator had failed to return their calls regarding providing their children with an evaluation or an eligibility screening.'"

The testimony of another DCPS witness, Maxine Freund, a professor at George Washington's Graduate School of Education and Human Development, also illustrated how "leadership turnover and lengthy vacancies in key positions" hindered Early Stages' efforts in becoming a comprehensive child find system.

Poor leadership has most likely limited the development of a tracking system "to determine which children are receiving services and ensure follow-up once children are referred" as well as complete coordination among agencies in Washington, DC involved in providing services to identified children.

The opening of the second Early Stages center is certainly a step in the right direction. Before the opening of the second Early Stages center, 40 percent of the referrals in the Ward 6 Early Stages center were from children in Wards 7 and 8. This high number of referrals is consistent with the most recent census data that illustrates that 40 percent of DC children live in Wards 7 and 8.

Furthermore, children who live in poverty are more at risk for having a developmental delay. While less than 3.1 percent of children who live in Ward 3 live in poverty, over 40 percent of children who live in Ward 7 and about 50 percent of children who live in Ward 8 live in poverty. Early Stages staff believe that at least 12 percent of children in this age group have a disability or a developmental delay.

While the implementation of the Early Stages program has played a role in increasing the identification of preschool-age children with disabilities or developmental delays, DCPS must strengthen its efforts to fill the position vacancies with people who are not only experienced in Child Find, but also have strong leadership skills.

Including strong leaders in management positions and reducing turnover would increase the likelihood of Early Stages developing a culture that supports the aspects of a comprehensive Child Find system, including timely evaluations, communication with families, interagency coordination, and the development of a tracking system.

The more information that came out, the more outrageous the charges against Nelson became. From an Atlanta Journal-Constitution story that came out the month after the incident:

On April 10, she and her three children—Tyler, 9, A.J., 4, and Lauryn, 3—went shopping because the next day was Nelson's birthday. They had pizza, went to Wal-Mart and missed a bus, putting them an hour late getting home. Nelson, a student at Kennesaw State University, said she never expected to be out after dark, especially with the children.

When the Cobb County Transit bus finally stopped directly across from Somerpoint Apartments, night had fallen. She and the children crossed two lanes and waited with other passengers on the raised median for a break in traffic. The nearest crosswalks were three-tenths of a mile in either direction, and Nelson wanted to get her children inside as soon as possible. A.J. carried a plastic bag holding a goldfish they'd purchased.

"One girl ran across the street," Nelson said. "For some odd reason, I guess he saw the girl and decided to run out behind her. I said, 'Stop, A.J.,' and he was in the middle of the street so I said keep going. That's when we all got hit."

Look at all the ways the design of the city's transportation system failed Nelson and her family. Bus service runs once an hour. There is no crosswalk to connect a bus stop with an apartment building it serves—nor any crosswalk for three blocks. A convicted hit-and-run driver who is half-blind and has alcohol and pain-killers in his system is considered less of a threat to the public than a woman who rides the bus and walks with her kids.

And as Radley Balko wrote in the Huffington Post, the odds were stacked against Nelson from the start.

"During jury questioning, none of the jurors who would eventually convict Nelson raised their hands when asked if they relied on public transportation," Balko wrote. "Just one juror admitted to ever having ridden a public bus, though in response to a subsequent question, a few said they'd taken a bus to Braves games."

Indeed, as David Goldberg wrote on T4America's campaign blog, "Nelson, 30 and African-American, was convicted on the charge this week by six jurors who were not her peers. All were middle-class whites" and did not ride public transit. "In other words, none had ever been in Nelson's shoes."

Many have asked if there's any way to help. Some expressed a desire to contribute to Nelson's legal fund. Others wanted to know if they could write a letter to someone demanding that Nelson's charges be expunged.

I've left two messages over the past week with Nelson's lawyer asking these (and other) questions. Neither message has been returned. So I can't answer your questions about a legal defense fund. Nelson's sentencing hearing is on Tuesday.

But there are now two petitions circulating. One, circulating at the Care2 petition site, asks the governor to overturn Nelson's verdict. At the moment I'm writing this, the petition has gathered 4,369 signatures, on the way to its goal of 10,000.

Another, which currently has 1,061 signatures at Change.org, asks not only for Nelson's release but for the installation of a crosswalk. That petition is addressed to the Cobb County Transportation Department, Cobb County Commissioner District 1 (Helen Goreham), and the Solicitor General (Barry Morgan).

We'll stay tuned for news on Nelson's sentence on Tuesday.

Cross-posted at Streetsblog Capitol Hill.

This is an all-too-common scene. In a suburban area with low rates of walking, state and local governments design roads for the maximum throughput and speed of motor vehicles with virtually no consideration to pedestrians (or bicyclists). Prince George's County even has an "adequate public facilities" law that requires developers to pay to widen intersections and roads around new developments, but makes no provision for safe pedestrian (or bicycle) facilities.

Therefore, many areas are very unsafe to pedestrians. Along Pennsylvania Avenue and other major routes in many suburban jurisdictions, there are bus stops along the side of the road, but no crosswalks, or even much of any safe space for people to stand out of the way of speeding cars.

When someone gets hit crossing a street to reach stores, neighborhoods, or one of these bus stops, police simply dismiss the issue, saying the pedestrian was not in a crosswalk and is therefore at fault, case closed.

Maryland's road safety chief, Vernon Betkey, Jr., was the one who blamed distracted pedestrians and public policy encouraging outdoor activity for rising road deaths. Maybe this lawsuit will push Betkey and other state leaders to take the design of the state's major roads more seriously.

It's not ideal for public policy to be made through tort law, but if that's what it takes to make states pay attention to pedestrian safety, so be it. It's simply not acceptable to design areas that are massively hostile to pedestrians, provide no alternatives, and then just shrug when pedestrians die because of the poor design.

According to news reports, it wasn't a simple case. Prosecutors showed evidence from dents on the van and the location of blood in the crosswalk that they say prove Bucy wasn't just backing up very slowly, as he said. But defense attorneys attacked the credibility of the main eyewitness because Bucy had taken a parking space he was trying for as well.

Note: Greenstein's son posted a comment disputing some of the facts of that case as reported in the press.

In another case we reported a year ago, a man on a cell phone hit and killed an elderly man at the intersection of Connecticut and Nebraska. Prosecutors tried to bring charges there as well, but while they could prove the man was on his phone just before the crash, they couldn't definitively demonstrate he was on the phone at that very moment, since there was no time stamp down to the second, and the man married the person on the other end of the call, making her unavailable to testify. Again despite physical evidence, the grand jury refused to bring an indictment.

There are at least two difficulties in pressing charges against negligent drivers. First of all, it's a lot harder to prove this than leaving the scene (hit-and-run) or drunk driving. Rightly, the state needs strong evidence to put someone in jail, but such evidence isn't as readily available. Leaving the scene of a crash is more straightforward to prove; the car was involved in the crash, but now it's not, ergo the driver fled.

For drunk driving, police regularly take breathalyzer tests at the scenes of crashes today, which provides clear evidence for or against intoxication. There isn't a similar test for whether a cell phone had just been used, though police also could do more to look into phone usage right away, such as asking witnesses; pedestrian advocates say that currently, police don't take as much care to look for evidence of phone-based impairment as they do for the alcoholic variety.

Second, while juries tend to believe even somewhat flimsy evidence in many drug and gun cases, many juries are reluctant to convict people for driving offenses, perhaps because they more readily can put themselves in the shoes of the driver.

A prosecutor for the DC Office of the Attorney General told me that they often have trouble getting juries to convict even on drunk driving, for which we have decades of public campaigns to curb. Charges carrying more than a year in prison involve a jury trial, she said, while lesser charges can be handled by a judge who is more likely to apply the law impartially.

It still took considerable changes to laws in various states to make it easy enough to prosecute drunk driving. It's now time to consider changing laws to give prosecutors reasonable tools against negligent driving. Maybe drivers like Bucy shouldn't face 5 years in jail, which is a pretty severe punishment, and while not as severe as what a dead pedestrian or cyclist or their families face, it's a lot. But neither should drivers who kill people just walk away with a $25 ticket.

New York recently passed two laws to help with this. Hayley and Diego's Law created a "careless driving" charge whose punishment is a fine of up to $750, up to 15 days in jail, suspension of the license of up to 6 months, and a requirement to complete a driver education course. Elle's Law says that anyone driving who commits a traffic violation and causes serious physical injury to someone else will have their license suspended for 6 months.

In Maryland, advocates are pushing for a more serious intermediate charge of "manslaughter by motor vehicle - criminal negligence." Michael Dresser explains, "That charge, which would apply when a sober driver kills someone through gross negligence not related to intoxication, would be a serious misdemeanor carrying a potential term of three years in prison and a $5,000 fine," compared to the current "manslaughter by motor vehicle" carrying up to 10 years in prison and the same fine.

Dresser suggests that instead of pushing for what's still a high penalty against negligent drivers who kill people, Maryland ought to create a charge of one year that applies even if someone is just injured. After all, there's not much difference between a driver's behavior that results in a serious injury or an actual death, other than luck. Charging more people with lesser offenses is a better way to curb dangerous behavior.

Having to defend himself against a very serious criminal charge was probably something of a punishment for Bucy, but if prosecutors could instead have filed one of these lesser charges, perhaps he would have faced some consequences for his negligence. Most of all, perhaps that story, reported in the media, would have served as a greater warning to other people to exercise care when operating very large metal vehicles.

The Council hearing is Friday, February 4, 12 noon at the Wilson Building, 1350 Pennsylvania Avenue, room 412. From the notice:

Those who wish to testify should contact Ms. Jessica Jacobs, Legislative Counsel, at (202) 724-8038, by fax at (202) 724-6664, or via e-mail at jjacobs@dccouncil.us and provide their name, address, telephone number, organizational affiliation and title (if any) by close of business Wednesday, February 2, 2011.

Persons wishing to testify are encouraged, but not required, to submit 15 copies of written testimony. If submitted by the close of business on Wednesday, February 2, 2011 the testimony will be distributed to Councilmembers before the hearing. Witnesses should limit their testimony to five minutes; less time will be allowed if there are a large number of witnesses.

Also, if you have stories about either the police not taking negligent driving seriously or prosecutors being unable to get convictions, send them to us at info@ggwash.org. We'll be publishing a few that we're aware of in the near future.

If you get hit by a Maryland State Highway Administration snow plow, tort liability is limited by the Maryland Tort Claims Act to $200,000 to a single claimant for injuries arising from a single incident or occurrence.

If you get hit by a speeding police car and its driver in Maryland, tort liability is similarly limited to $200,000 by the Local Government Tort Claims Act.

Yet if you get hit by an MTA bus or MARC train, the MTA's tort liability is unlimited.

CSX, which owns the tracks the Brunswick and Camden Lines operate on, requires MARC to carry $500 million per incident in liability insurance. MARC currently self-insures up to $5 million and would have required the winning bidder to carry $5 million in insurance as well.

Potential bidders had apparently found this requirement too difficult to meet. But the MTA is forming a rescoping group, Taylor added, with a mandate to identify possible changes in the request for proposals that might encourage more bidders.

Meanwhile, CSX will continue to operate the Brunswick and Camden Lines through June 2012. After that, the MTA may exercise options with CSX for 4 three-month extensions, through June 2013. The MTA is paying CSX approximately $1 million extra per year for not getting CSX out of MARC operations and maintenance on schedule.

The obvious question is why the MTA requires so much liability insurance in the first place, when so little tort liability exists in seemingly analogous situations.

In Collier v. Nesbitt (1989), a court held that the Maryland Tort Claims Act does not apply to the MTA, because Section 7-702 of the Maryland Transportation Article is "a general waiver of sovereign immunity for the MTA", and the Maryland Tort Claims Act applies only "where no specific sovereign immunity waiver otherwise exists."

To make the law more equitable, the Maryland Department of Transportation has at least twice introduced legislation in the General Assembly to cap the MTA's tort liability.

In 2005, SB 154 would have capped the MTA's liability for the tort of an entity under contract to the MTA at the limits of the Maryland Tort Claims Act. But the bill received an unfavorable report from the Judicial Proceedings committee.

In 2007, HB 1130 would have capped the MTA's liability at $1 million for a single claimant for a single incident. This bill was withdrawn.

So try and try again? Let's hope so. This time a bill might pass, and Brunswick and Camden Line MARC riders could feel more confident that their trains will still be running on July 1, 2013.