NYPD seizes adorable dog, person too, in retaliation for video-recording in public, attorney-plaintiff alleges

A New York legal aid attorney was arrested, along with her dog, when she started video-recording police, and then she sued for civil rights violation.

Harvey (Compl. ¶ 36)

The NYPD messed with the wrong person. As the complaint tells it, Molly Griffard, an attorney with the Cop Accountability Project of the Legal Aid Society (Equal Justice Works), was walking her dog, Harvey, in the Bedford-Stuyvesant neighborhood of Brooklyn when "she saw police officers remove a young man from a bodega, and drag him around the corner where they lined him up with other young men against a wall."

Griffard began video-recording with her phone. After she crossed the street at an officer's instruction, she started writing down NYPD car plate numbers. An officer refused to give her his business card upon her request, the complaint alleges. Instead, the officer handcuffed Griffard and arrested her, taking her and Harvey into police custody. She was held at the 79th precinct for eight hours, while Harvey, a nine-year-old Yorkie, was held in the kennel.

Admittedly, what caught my attention in the case was not so much the facts, head-shaking inducing as they are, but the story of Harvey. Journalist Frank G. Runyeon, reporting for Law360, and NBC News 4 New York, also were enchanted.

Griffard and her attorney, David B. Rankin, of Beldock Levine & Hoffman LLP, must have been conscious of Harvey's intoxicating adorableness, too, because they included gratuitous glamor shots in the complaint—as I've reproduced here. 

Harvey (Compl. ¶ 20)

At its fringe, the case might be said to implicate animal rights, or at least the rights of owners of domesticated animals. Courts in the United States and elsewhere in the world are coming around to the idea that domesticated animals such as cats and dogs have a value exceeding their market worth as personal property, especially in the area of tort damages when the animals come to harm.

Griffard make no such claim, though, rather using Harvey as evidence to demonstrate her emotional distress at being separated from him and being given no information about his whereabouts while they were held—and, between the lines, to tug at the heartstrings and demonstrate the utter absurdity of her arrest and detainment.

One paragraph of the complaint does allege that seven-pound "Harvey was traumatized by the incident and now takes medication to treat his anxiety disorder." And the count of unreasonable seizure points out that "Harvey missed his dinner."

The case is Griffard v. City of New York, No. 512993/2023 (Sup. Ct. Kings County filed May 2, 2023).

FTC finally notices abuse of customers, shady business practices by car rental industry

In an omnibus resolution late last week, the Federal Trade Commission (FTC) green-lighted investigation of the car rental industry.

Earlier this year, I wrote about the "new lows" of our car rental oligopoly in the United States, including my own experiences with the misleading Hertz "loyalty" program and the manipulation of pickup and drop-off times to draw overage fees.

The resolution broadly compels investigation "[t]o determine whether any persons, partnerships, corporations, or others have engaged or are engaging in deceptive or unfair acts or practices in or affecting commerce in the advertising, marketing, promotion, sale, tracking, or distribution of rental cars."

For context, Frankfurt Kurnit's Jeff Greenbaum wrote in Advertising Law Updates that commissioners ordered similar investigations in July 2021 into "areas such as COVID-19, healthcare, and technology platforms," and in September 2021 into services targeting veterans and children, "algorithmic and biometric bias, deceptive and manipulative conduct online, repair restrictions, and abuse of intellectual property."

The FTC didn't detail the buzz in its bonnet, but they likely heard lawmakers in the spring frowning on Hertz's misreporting of stolen cars. Senator Richard Blumenthal (D-Conn.) wrote Hertz a nasty-gram in March. Forty-seven customers filed suit for false arrest in July, CNN reported (via ABC 7 L.A.), and they're not the only ones.

I documented my rental return this summer in Thunder Bay, Ontario.
(RJ Peltz-Steele CC BY-NC-SA 4.0)

I've started taking the advice of The Points Guy's Summer Hull to take pictures and videos of my rental cars when I pick them up and when I return them. One Mile at a Time advises the same. 

But I'm doubting the utility of it. I'm not sure you can see scratches or dents in the images, especially in dark garages. And, as Hull herself reported, she was called out for alleged damage to the roof, which she had not climbed up to photograph. I wonder whether I should crawl under the car to photograph the undercarriage.

Lately rental companies have presented me with an up-sell option for tire and window insurance, threatening that they're not covered even if a buy the CDW. And don't get me started on involuntary "upgrades" to fuel-inefficient trucks. Even the sedan pictured here, which I rented this summer in Thunder Bay, Ontario, was what I got when I reserved an SUV to tackle unpaved roads.

Meanwhile, my budding occupation as car portraitist is eating into my travel time and my hard drive space.

It seems to me that when customers start having systematically to video-record their interactions with industry to protect themselves against fraud, the problem might be with the industry and not with the customer.

Oh, FTC ... 🤙

U.S. rental car oligopoly hits new lows, as customers alleging false arrests intervene in Hertz bankruptcy

Photo by Diego Angel CC BY 3.0

A curious story of alleged false arrests and a corporate lawyer's blunder surfaced in business media earlier this month, and the story speaks to the sad state of consumer protection in America.

In December 2021, dozens of claimants filed (no. 193) in the covid-precipitated bankruptcy of Hertz, the rental car company, alleging the reporting of rental cars as stolen, resulting in false arrests of Hertz customers by police, along with the disgrace of arrest, jailing, and other life disruptions that attend felony charges.

The claims, many recounted by CBS News, allege varied circumstances precipitating the reports of stolen cars, including poor record-keeping and misunderstandings over return times, hardly the stuff of high crime.  The claimants' theory is that Hertz essentially outsourced its (mis)management of late returns to police, disregarding the dramatic mismatch between contract enforcement and criminal justice and the ruinous consequences visited on customers.

Early in January, journalist-blogger Minda Zetlin of The Geek Gap reported a verbal gaffe in court on the part of a Hertz lawyer.  Zetlin's report was picked up by a number of outlets, including Inc.  The only recent transcript on file in the case (no. 251) is "not available" on PACER, maybe because the claimants, Hertz, and CBS News are now in a tussle over sealing, the docket suggests.  Anyway, I can't verify Zetlin's report, so I'm not going to name the lawyer here.

According to Zetlin, a Big Law lawyer representing Hertz responded in court to the allegations: "It is a fraction of 1 percent of annual police reports that are filed that turn into actual litigation claims.... We actually think the number of legitimate claims that arise out of annual rentals is a tiny, tiny, tiny, tiny, tiny, tiny fraction."

Zetlin fairly observed that even a "tiny" "number ... does not count customers who were falsely arrested but accepted an early settlement from Hertz, resolved the matter in arbitration, or simply decided they didn't have the funds or the stamina for a lawsuit."  Zetlin further opined that "[m]ost [Hertz customers] would likely prefer a car rental company where their chances of going to jail are zero, rather than just tiny."  Count me in that majority.

I can't speak to the merits of the claims.  But for my part, I have been frustrated by car rental companies' shocking embrace of the contemporary trend to forego all pretense of customer service.  This skimpflation has been exacerbated by the pandemic, but we were well on our way before 2020.

Hertz, in particular, raised my ire more than once last year.  Having been lured into Hertz's "Gold" program, I once made a reservation directly on the Hertz website, rather than running my usual price comparisons with intermediaries.  Afterward, I discovered a lower rate on USAA.  But every time I was forwarded to Hertz.com to confirm the reservation at the USAA rate, I was automatically logged in to Hertz, and the rate jumped substantially.  When I tried linking to Hertz in a private window, without logging in, I got the lower rate.  In other words, Hertz was charging me substantially more because I was a member of the "loyalty program."

When I waited on hold for hours to ask a Hertz agent to log my anonymous reservation in my Gold account, I was told it couldn't be done without elevating the rate.  An agent told me that the Gold program does not guarantee lowest rates.  Actually, it does.  So much for loyalty.

Another new practice of car rental companies is to manipulate the time of pickup and drop-off to increase the likelihood of a late fee.  A customer reserving a car for pickup has to make a ballpark estimate of the time, considering how long it might take to deboard a plane, claim bags, transfer to a ground transportation center, etc.  Reservation systems offer pickups usually in only half-hour increments, 12, 12:30, 1, 1:30 etc.  So it's an inexact science, and the rental company knows that.  Accordingly, it was once common for the companies to afford an hour's grace on the clock one way or the other.  No longer.

When I picked up a car early, Hertz, without the agent saying a word, pre-charged me a late fee on the return while giving me paperwork showing the car due back at the original return time.  When I complained, Hertz said the charge would be taken off if I returned the car earlier than the indicated time, days to the minute from my actual pickup.  Yet when I rented another car and picked it up late, my return time still did not change.  The car was due back at the same time, and I just lost the hours to my late arrival.  So whether a customer is early or late for pickup, an inevitability because of deliberate inexactness, the company wins, either time or money.  No doubt the company is betting that the small loss on one rental will go unnoticed to the customer but add up big for the cumulative bottom line.

I admit, my complaints are small potatoes, mere annoyances, compared with being jailed.  But the theme that unifies my experience and that of the claimants against Hertz is Hertz's profound indifference to the customer.

So, free market, right?  Treating a customer like an entitlement is a consumer protection problem that should solve itself when a competitor comes along and offers to do better.  (Southwest's free checked bags and transparent pricing come to mind in the airline industry.)  Part of the problem is our public officials' dereliction of duty in antitrust.  The experiences I just described also characterize the policies of Dollar and Thrifty, because, guess what, they're owned by Hertz.  Likewise, Enterprise owns National and Alamo, and Avis owns Budget and Payless.  Three "beasts" account for almost all of the U.S. rental market.

Free markets only work when the playing field is level, information flows freely, and barriers of entry to the market for new competitors are surmountable. None of those conditions holds true in our car rental oligopoly.  Rather, if the claims in the bankruptcy court are to be believed, we've come to the point that a company can jail customers in case of contract dispute and hardly fear market reprisal.

Debtors' prison must be around the next corner.

The bankruptcy case is In re Rental Car Intermediate Holdings, LLC, and CBS Broadcasting Inc., No. 20-11247 (Bankr. D. Del. filed May 22, 2020).

Man may sue police in tort, civil rights for violent beating, despite his conviction for resisting arrest

"Defund the police" has been a rallying cry in recent protests. (Photo at BLM
encampment, New York City, June 26, 2020, by Felton Davis CC BY 2.0.)

The Massachusetts Supreme Judicial Court last week vacated and remanded the trial court's judgment for police in a civil suit with racial overtones.

Authoring the unanimous opinion, Justice David A. Lowy characterized the case as "disturbing."  The court recited the facts as most favorable to the plaintiff, Mark S. Tinsley, the non-moving party.  According to that recitation, Tinsley, who is African American, was stopped by Framingham, Massachusetts, police for speeding in 2012.  Suspecting Tinsley of hiding something, police ordered Tinsley from the car, and he refused.  The traffic stop by two police officers became a physical struggle with five to pull Tinsley from the car.  Once he was out of the car, on the ground,

several police officers began beating him.  Tinsley did not resist. He tried to put his hands behind his back so that the police officers would handcuff him and thus, he thought, stop hitting him. The police officers did not stop. [One officer] struck Tinsley's collarbone and upper shoulder, and stomped on Tinsley's left hand. [A second officer] sprayed Tinsley with pepper spray. [A third officer] called Tinsley a "fucking n[word]" [footnote: "At trial, [the third officer] denied that he or any other police officer swore at Tinsley or called him 'any names.'"] and kicked Tinsley in the head. While Tinsley was on the ground, an officer handcuffed him [footnote omitted quoting Tinsley's trial testimony]. Tinsley suffered a broken nose, a broken finger, and a wound on the side of his head that required stitches.

Tinsley was convicted on counts including assault and battery (criminal), carrying a dangerous weapon ("a spring assisted knife"), and resisting arrest.  While criminal charges were pending, Tinsley sued for civil rights violation and tort claims including assault, battery, intentional infliction of emotional distress, and false arrest.  Upon two motions, the latter decided after the conclusion of the criminal proceeding, the trial court entered judgment for defendants police and town on all counts.

The question on appeal was whether the trial court properly recognized in the civil proceeding the collateral estoppel effect of Tinsley's criminal conviction.  The doctrine of collateral estoppel precludes a later civil court from re-trying facts and conclusions of law that were determined by jury and court in an earlier criminal proceeding.  Thus, after conviction, a defendant may not argue his innocence in a later case.

However, the facts deemed determined in the earlier criminal proceeding are limited to the facts that supported conviction.  Tinsley argued, and the Court agreed, that the jury's conviction was not inconsistent with Tinsley's claim of excessive force for the beating he endured on the ground, outside the car, after his arrest.  The Court reasoned that Tinsley was placed under arrest when he was seized inside the car.  Insofar as Tinsley was resisting arrest inside the car, then, collateral estoppel pertains, precluding suit on the tort of false arrest.  But the jury may have based its conviction on a fact pattern that ended before Tinsley was on the ground. So the facts of the beating, occurring after arrest, remain arguable in the civil case.

The Court explained,

Even where the use of force to effect an arrest is reasonable in response to an individual's resistance, the continued use of force may well be unreasonable, as an individual's conduct prior to arrest or during an arrest does not authorize a violation of his or her constitutional rights....  To hold differently would implicitly permit police officers, in response to a resisting individual, to exert as much force as they so choose "and be shielded from accountability under civil law," so long as the prosecutor could successfully convict the individual of resisting arrest.

Accordingly, the Court vacated judgment for defendants on the civil rights claim and the assault, battery, and IIED counts, and remanded the civil case to proceed.  The false arrest claim was properly barred.

The case is Tinsley v. Town of Framingham, No. SJC-12826 (Mass. Sept. 17, 2020).  Chief Justice Gants participated in deliberations before his death.