“John Doe” provision: The final language

posted at 2:59 pm on July 25, 2007 by Allahpundit

Audrey Hudson and the Wash Times have got it, but I didn’t want to bury it at the end of the other “John Doe” post so here you go:

The outstanding issues that were resolved include stripping the retroactive language that would have allowed the lawsuit to proceed against the “John Doe” passengers; restricting the reporting to terrorism and not other criminal activity, and limiting it to federal lawsuits.

If passed, the law will become retroactive from Oct. 1, 2006.

“Any person who, in good faith and based on objectively reasonable suspicion, makes or causes to be made, a voluntary report of covered activity to an authorized official shall be immune from civil liability under federal, state and local law for such report,” the conference language says.

Noam Askew sent me a link to CQ this morning which claims the language in the new draft was derived from H.R. 2291, a bill introduced by the GOP and co-sponsored by Peter King in May. Here’s the pertinent part. What’s different?

Any person who, in good faith, makes, or causes to be made, a voluntary disclosure of any suspicious transaction, activity, or occurrence … to any employee or agent of the Department of Homeland Security, the Department of Transportation, or the Department of Justice, any Federal, State, or local law enforcement officer, any transportation security officer, or any employee or agent of a transportation system shall be immune from civil liability to any person for such disclosure under any Federal, State, or local law.

Answer: The new language requires that there be an “objectively reasonable suspicion” for the immunity to apply. That’s the GOP’s concession to the concerns of Bennie Thompson and the Democrats that people would use their “John Doe” immunity to go around making all sorts of paranoid claims. In essence, it leaves things in the hands of the jury: if a passenger is sued for making a report and the jury decides that their suspicion was reasonable, the passenger is immune. If not, no immunity. It’s not foolproof, but it’s probably the best they could have done and King seem pretty pleased with it. If you’re going to drop a dime on a suspected jihadi, though, try not to do it in a blue state.

Update: Ace thinks they should have left well enough alone with the subjective standard, i.e., good faith.


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If you’re going to drop a dime on a suspected jihadi, though, try not to do it in a blue state.

So…tempted…to misconstrue.

James on July 25, 2007 at 3:03 PM

Poor, poor CAIR. Though I’m guessing there won’t be any disclosure of suspicious activity they find to be in good faith. Call me cynical.

TK on July 25, 2007 at 3:05 PM

Hmmmm…concerned about that word “reasonable.” Have seen no evidence of reasonableness on the topic of Islamic extremism from the left in a long, long time. I agree, if you have to drop a dime, find a sweet little old lady, three nuns, a preschool teacher, and a Little League coach of the year to sign the complaint with you. Yup, there’s strength in numbers.

Rational Thought on July 25, 2007 at 3:10 PM

What’s CAIR’s address? What the number for local law enforcement? Heck, why not call Homeland Security to surround Dearbon, MI?

Dr.Cwac.Cwac on July 25, 2007 at 3:18 PM

No, Lefties, you can’t undermine National Security, Not Yours.

Bad Candy on July 25, 2007 at 3:18 PM

At least the ol’ saying won’t have to be changed to “If you say something, sue something”

JetBoy on July 25, 2007 at 3:21 PM

What a load of crap: this law doesn’t do JACK-S*** against protecting people against frivolous lawsuits. This does NOT stop the John Doe lawsuit by the “Flying Imams” from going forward: it only sets the legal standard they have to prove to win their case.

What constitutes an “authorized official”? A gate attendant at the airport? A flight attendant? How about an airport maintenance worker or a private security guard? I can see courts holding these people are not part of law enforcement or TSA, and therefore not “authorized officials”.

Further, this law protects people from liability ONLY IF A JURY DECIDES the report is “based on objectively reasonable suspicion“. This is the same “reasonable person” standard that created the malpractice and negligence boondoggle for trial lawyers.

So now the malpractice attorneys are gonna get even fatter from witnesses who end up in court defending their actions. It ain’t over until the jury says so (and I don’t see anything about witnesses recovering attorney fees). Witnesses still can end up bankrupt in legal fees defending their actions.

Thanks for nothing.

j6p on July 25, 2007 at 3:25 PM

Just to be safe, I’m going to continue to concentrate on elderly, caucasian women … carrying Bibles into Presbyterian churches.

OhEssYouCowboys on July 25, 2007 at 3:30 PM

Okay, I’m confused. I agree with j6p at 3:25. I thought this was to prevent people from being sued. By saying “…it leaves things in the hands of the jury: if a passenger is sued for making a report and the jury decides that their suspicion was reasonable, the passenger is immune.”, it seems the person must still defend themselves in court, and you easily get bankrupted in the process, though found innocent. Do you mean grand jury, where you would be excluded at the outset?

Americans who report suspicious activity will be protected from frivolous lawsuits,” Mr. King said.

There’s nothing frivolous about the lawsuits. They are hardcore “Strategic Lawsuit Against Public Participation” (SLAPP) suits, meant to discourage suits through financial ruin.

eeyore on July 25, 2007 at 3:41 PM

sorry, I meant “discourage reporting thorough financial ruin.”

eeyore on July 25, 2007 at 3:43 PM

Question?

Is this one of the bills that Bush has said he will veto?

If so it only gives Dems cover. It is weird that it was pulled out of one bill and placed in another. Could it be that it was pulled from a veto proof bill and placed in a bill destined to be veto?

unseen on July 25, 2007 at 3:47 PM

j6p is right on the money, this language is horrible. The original King language would at least cover mentioning a suspicious activity to a stewardess (…or any employee or agent of a transportation system…) but the new language only covers an “authorized official” and a stewardess is not an “authorized official” anything, he or she is an airline employee.

Also as mentioned, a citizen must still defend themself and retain a lawyer then hope a jury acquits?! The legal intimidation remains.

enoughalready on July 25, 2007 at 3:56 PM

Sooo… what this means is that third parties, like Cair, who are funded by Saudi Money, can still sue, and bring ruin to average Americans.

Chock up of win for the Trial Lawyers Association, and Islamists, at the expense of the Average American.

Romeo13 on July 25, 2007 at 4:04 PM

Trial lawyers and jihad’s. It would be such a better world without both.

Yet, both are supported by the Dems.

Hening on July 25, 2007 at 4:12 PM

So if I understand this correctly, anyone who reports suspicious behavior and gets sued still has to hire a lawyer who requires (last time I needed one) a $5,000 retainer. That’s $5,000 CASH UP FRONT before s/he lifts a finger. You don’t think that is a major deterrent?

To me that is about 5,000 reasons for the little voice in a person’s head to scream, “Keep moving along, there’s nothing to see here… pay no attention to that sweaty imam with the bomb wired to his prayer rug…”

This story/thread goes in the “loss column” imho.

NightmareOnKStreet on July 25, 2007 at 4:19 PM

Any person who, in good faith and based on objectively reasonable suspicion, makes or causes to be made, a voluntary report of covered activity

Ummm… you have to proove good faith.
It has to be reasonable… eyes of the beholder…
And what is a “covered activity?”….

This still gets you sued….

They can still yell Islamophobia… thus bad faith…
They can still argue what is reasonable…
And we will all have to have lists of “covered activities”.

Dems won folks… this still ends up in court.

Romeo13 on July 25, 2007 at 4:26 PM

Reading the language, what this essentially does is, gives the general public the impression that reporting suspicious activity will triger the immunity.

Unfortunately, this is a starting point, not an end point. Additional protections will likely need to be put in place.

Canadian Imperialist Running Dog on July 25, 2007 at 4:34 PM

The new wording may not be perfect, but it seems OK to me. Sure there’s still room for nuisance lawsuits, but that was also true of the original wording – all it would have taken was a claim that the person who reported the suspicious activity didn’t do so in “good faith”.

jic on July 25, 2007 at 5:11 PM

I guess we’ll see if this holds water if the CAIR “flying Imams suit” gets tossed under this law.

If it continues (prediction: It will–CAIR will push for the court to determine that the complaints were “non-objective” or “unreasonable”), it will prove that this “language” “victory” is worthless.

mojojojo on July 25, 2007 at 5:32 PM

jic on July 25, 2007 at 5:11 PM

Disagree… the real killer is the “reasonable” part…

Thats the part which will open it up to litigation..

Reasonable where? Reasonable to who? Under what circumstances? Thats the part which will have to be left to a jury, thus a lawsuit…

Romeo13 on July 25, 2007 at 5:59 PM

Well, reading the language, the bill, and ace’s post. I think Ace is right.

I think, in this situation, you will eventually win a challenge against you. And this bill won’t really be relevant, and this bill won’t give enough of a clear guideline to prevent it from going to trial, and you’ll be out over 10 grand in legal fees easily.

So, see something, say something, get sued for it and pay massive legal fees to avoid problems.

All this will cover, is if you see someone do something so obvious that you’d have called even if the suspect was an 83 -year-old African-American woman in a wheelchair.

This won’t be of any use (retroactive language or not) to the Flying Imam case; as their complaint wasn’t “based on objectively reasonable suspicion” was it? Would you have made the same call if it were a group that looked like your mom’s quilt club?

Then it wasn’t objective now, was it? You’ll be spending some time, and a metric buttload of cash in court now explaining why you’ve decided the fellow praising Allah deserves different scrutiny than your mom.

Thanks Congress, that was a complete waste of time. Which is in no way surprising, as this accounts for 99% of their actions.

gekkobear on July 25, 2007 at 6:07 PM

Reasonable suspicion is a long held legal standard that a person; has been, is, or is about to be, engaged in criminal activity based on specific and articulable facts and inferences. Juries have been dealing with the concept for a long long time and it has a good track record in trials. From everything I’ve read the people involved in reporting the flying Imams is a text book case of reasonable suspicion.

Any lesser standard wouldn’t likely withstand judicial review while reasonable suspicion is firmly entrenched and should be bulletproof from leftist judges and jihadist defense attorneys.

I’ll put this in the WIN catagory.

Buzzy on July 25, 2007 at 6:08 PM

Um, most of the time a claim of immunity is not decided by a jury – it is handled early in the case as part of motion practice. Judges would decide. This would put a premium on judge shgopping I guess…

But this is better than having no provision. Also, if the wrong judge gets picked, the plaintiff could get socked for costs and such. God help the attorney that picks the wrong case to sign onto as well – the FRCP will allow a judge to sock it to ‘em. heh.

Call it a grade B win.

major john on July 25, 2007 at 6:10 PM

Oh, man! I just saw an elderly, caucasian woman, carrying a Bible into a Presbyterian church! I can’t wait to report her … and not have to worry about a “flying Imam lawsuit”!

She’s so busted.

:O)

OhEssYouCowboys on July 25, 2007 at 6:11 PM

Um, most of the time a claim of immunity is not decided by a jury – it is handled early in the case as part of motion practice. Judges would decide.

Yeah, but on a claim of “objective reasonableness”? That almost always means jury, doesn’t it? It’s a question of fact.

Allahpundit on July 25, 2007 at 6:12 PM

Unless it’s been defined otherwise by statute, it’s probably all about the “reasonable man” standard. It’s been that standard, in torts, for a very long time.

The only problem is – if you have a Liberal on the jury – there can be no comprehension of “reasonable” conduct. It’s a non-sequitur.

OhEssYouCowboys on July 25, 2007 at 6:20 PM

law school 101:

good faith: the reporter has to be sincere, ie the reporter can be unreasonable and hyper-sensitive, but as long as he is sincere/honest, he is immune from liability

objectively reasonable: using the standard of a reasonable person, ie the reporter can still be wrong, but whether it was reasonable is up to the factfinder (judge/jury) not the person making the report

John Doe’s are STILL going to have to pay lawyer fees, to litigate whether the flying imams actions were reasonable. They’d better get a good attorney that KNOWS how to pick a jury (what jurisdiction will this be litigated in? Dearbornistan = trouble) and the results of that trial will set the tone moving forward.

We need to pass LOSER PAY legislation [loser pays atty fees] on slander/libel cases, too, and make THAT retroactive. Let CAIR and the flying imam pay John Doe’s legal bills.

JustTruth101 on July 25, 2007 at 6:31 PM

sorry/typo correction: the litigation will be if the flying imams actions were such that a reasonable person would have found their actions suspicious

JustTruth101 on July 25, 2007 at 6:32 PM

Worthless… as long as you still have to worry about hiring a lawyer and going to court… then this defeats the point.

All it benefits is a. trial lawyers and b. jihadis. Big losers are the American people and the victims of the next terrorist attack. What is wrong with congress?

BadBrad on July 25, 2007 at 6:36 PM

If you’re going to drop a dime on a suspected jihadi, though, try not to do it in a blue 9th Circuit state.

So, would that be closer to it, major john & AP?

eeyore on July 25, 2007 at 6:37 PM

Reasonable suspicion is a long held legal standard that a person; has been, is, or is about to be, engaged in criminal activity based on specific and articulable facts and inferences. Juries have been dealing with the concept for a long long time and it has a good track record in trials. From everything I’ve read the people involved in reporting the flying Imams is a text book case of reasonable suspicion.

Any lesser standard wouldn’t likely withstand judicial review while reasonable suspicion is firmly entrenched and should be bulletproof from leftist judges and jihadist defense attorneys.

I’ll put this in the WIN catagory.

Buzzy on July 25, 2007 at 6:08 PM

Key concept here is the JURY WILL DECIDE…

The whole idea behind the John Doe law was to stop them from getting sued in the first place…

Romeo13 on July 25, 2007 at 6:38 PM

“Reasonable suspicion” has nothing to do with civil litigation – and, even if it did, defense lawyers attack that term all of the time.

OhEssYouCowboys on July 25, 2007 at 6:47 PM

Anyone who thinks this version of the “John Doe” provision will protect anyone BUT THE POTENTIAL TERRORISTS (upon whom “John Doe” is reporting) should go home and crouch under their c. 1960 wooden nuclear-bomb-proof-student-desk with their hands clasped firmly behind their neck (to further protect the spine from the force of the nuclear blast)

Key concept here is the JURY WILL DECIDE…

The whole idea behind the John Doe law was to stop them from getting sued in the first place…

Romeo13 on July 25, 2007 at 6:38 PM

ROMEO13, BRILLIANTLY PUT! ‘NUFF SAID.

NightmareOnKStreet on July 25, 2007 at 7:14 PM

Key concept here is the JURY WILL DECIDE…

Hmmmm…. Sounds pretty weak after all.

sanantonian on July 25, 2007 at 8:21 PM

Watching the story of this legislation on Fox News tonight the reporter did say the legislation includes language that the plaintiff will have to pay the defendant’s court costs (does that also mean legal fees?) if it is found that the complaint was “in good faith” and “reasonable.” I suppose that means nothing, however, to deep pockets like CAIR.

Rational Thought on July 25, 2007 at 8:58 PM

Ain’t the best but at least it’s something to protect those that only want to protect us.
It just seems insane that it has come too this. Common sense is long gone.

oakpack on July 26, 2007 at 5:30 AM