(See minute marker 1:20-2:40 for the incident.)

At the U.S. Open, on September 14th, at the Arthur Ashe Stadium in Queens, NY, Serena Williams may have committed the tort of “assault” against one of the line judges at the tournament. In her semi-final match against Kim Clijsters, a line judge called a “foot foul” against Ms. Williams. Incensed, Ms. Williams approached the line judge with her racquet out and screamed, “If I could, I would take this … ball and shove it down your … throat.” The line judge also stated that Ms. Williams threatened to kill her, which she denied.

Notwithstanding the alleged “death threat,” Serena’s threat of physical violence did take place in New York. So whether the line judge would have a civil tort case against Ms. Williams would be governed by New York law. “Assault,” in New York, consists of:

  1. an intentional attempt,
  2. displayed by violence or threatening gesture
  3. to do injury to, or commit a battery upon,
  4. the person of another.

Clayton v. Keeler, 42 N.Y.S. 1051, 1053 (N.Y. Sup. Ct. 1896) (stating that “assault” is “to offer with force and violence to do hurt to another… holding up a fist in a threatening attitude, sufficiently near to be able to strike; advancing with a hand uplifted in a threatening manner, with intent to strike, although the person is stopped before he gets near enough to carry the intention into effect.”).  Pope v. State, 79 N.Y.S.2d 466, 471 (N.Y. Ct. Cl. 1948), aff’d, 99 N.Y.S.2d 1019 (4th Dep’t 1950).

Contrary to the common use of the word “assault,” as a civil tort, assault is merely the visual or auditory threat by one person to do something violent to another person. But assault is not merely an idle threat. It must be some threatening physical act or words done by one person, who is actually capable of doing the threatened physical harm, to another person. For instance, before one commits the tort of assault by actually punching someone in the face, the act of drawing back one’s fist before the punch is thrown, constitutes “assault.” Whereas the actual contact of the fist with the victim’s nose is the tort of “battery.”  6A N.Y. Jur. 2d Assault § 4 .

Furthermore, the fact that assault must be an “intentional attempt” means that the person doing the threatening must actually intend to make physical contactwith the one who is threatened. 6A N.Y. Jur. 2d Assault § 5.

While Ms. Williams “displayed by violence or threatening gesture” a threat “to do injury to, or commit a battery upon, the person of another,” that is not enough. For the line judge to have a civil case against Ms. Williams for the civil tort of “assault,” the threat must indicate “an intentional attempt.” In other words, it must have been reasonable in the circumstances for the line judge to have felt that Ms. Williams actually would have carried out her threat had it not been for the involvement of the other officials who intervened (see minute marker 1:20-2:40 in the video above).

There are probably arguments that could legitimately be made on both sides of this issue. The fact that she approached the line judge aggressively, verbally threatened her with violent acts, and that her approach caused the line judge to run away from her in fear all indicate that her threats were serious enough that she would have actually carried them out had the line judge not fled and the two other officials not approached. This would not be the first case of a frustrated athlete carrying out some violent act.

On the other hand, it could have appeared that Ms. Williams’ threats were merely her way of expressing her frustration at the call, but that she had no intention of actually carrying them out, even momentarily. The issue could be rationally argued either way and would likely be the primary focus of an “assault” litigation were the line judge to decide to sue Ms. Williams.

If you need help with any sort of personal injury matter, whether it be for assault and battery or any other tort, please do not hesitate to contact our office by either e-mailing us or calling 800-344-6431.

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Commenting on the recent blog traffic attracting recent incident when Kanye West famously interrupted Taylor Swift while she was receiving an award at the MTV Music Awards, President Barack Obama called Mr. West a “jackass.” (audio)

As part of a series of posts using celebrity exploits as case studies to inform readers about various legal issues in New York,  we will discuss whether Kanye West has a cause of action in New York against the President for defamation.

Defamation in New York is generally characterized as “the making of a false statement which tends to ‘expose the plaintiff to “public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society.’” Dillon v. City of New York, 704 N.Y.S.2d 1, 5 (1st Dept. 1999). The elements of a claim for defamation in New York, generally, are:

kanye west kayne obama barack president jackass

  1. the statement is of a defamatory nature,
  2. it must refer to the plaintiff
  3. it must be published (communicated in any way) to someone other than the plaintiff.
  4. the statement must be a fact (as opposed to an opinion) that is false
  5. it must be published without privilege or authorization to a third party
  6. It must have been published negligently or worse (i.e. recklessly or intentionally); and
  7. the statement must either cause special damages or constitutes defamation per se.

Id.In terms of the specific elements of defamation, how would they apply with regard to Mr. Obama’s statement about Kanye West?

  1. The President’s statement was probably not of a “defamatory nature” because it did not subject Mr. West to any more “public contempt, ridicule, aversion or disgrace” than he would have otherwise experienced due to his very public and embarrasing conduct.
  2. The statement did indeed refer to Mr. West.
  3. Mr. Obama’s statement was “published” (communicated) to the country through the CNBC tweet that published the insulting soundbite.
  4. Whether the statement that Mr. West is indeed a “jackass” is probably a matter of opinion, rather than fact. Defamatory statements are only labeled as such when they make a factual allegation, and the plaintiff has the burden of proving that the statement is factually false. 600 West 115th Street Corp. v. Von Gutfeld, 603 N.E.2d 930, 934 (1992). Although some may consider  Mr. Obama’s characterization of Mr. West as  a “jackass” factual, most consider that evaluation an opinion, rather than a fact. Thus, this element of defamation is probably not met.
  5.  The allegedly defamatory statement was communicated to a third party (several million of them, actually), so that element of defamation is there.
  6. The “publication” of Obama’s statement was probably at least negligent. This president was not the first to be embarrassed when things they said in front of microphones they thought were off turned out not to be. This happened to Ronald Regan in 1984, George W. Bush in 2006 and 2008, and Bill Clinton last year. The long history of microphone gaffes probably indicates that Mr. Obama was on notice that one cannot rely on the assumption that microphones that one thinks are off, really are. So I think Mr. West would probably be able to show that Obama consciously relayed his comments to a third party, by at least a negligence standard. Not only that, but the audience was present and he knew he was talking to them, so the “publication to a third party” element is probably met.
  7. “Words that expressly or implicitly tend to injure one’s personal or professional reputation are considered defamatory per se.” 43A N.Y. Jur. 2d Defamation and Privacy § 7. I doubt that Mr. Obama’s characterization of Mr. West would tend to harm his personal or professional reputation any more than his initial behavior already has.

But even if Mr. West did have a legitimate claim of defamation, he would not have a cause of action if Mr. Obama could assert a “privilege,” as mentioned in #5 above. One of the privileges that an alleged defamer can assert is “absolute immunity” if he or she is a government official. Could Mr. Obama assert the privilege of “absolute immunity” as a government official to deflect the claim?

Probably not. A governmental official may only use the defense of absolute immunity when he is speaking in his official capacity at the time of the allegedly defamatory statement. Id. at 932.  Statements that a governmental official makes to the media are not considered part of his official capacity. Goodyear Aluminum Products, Inc. v. State, 203 N.Y.S.2d 256, 260 (N.Y.Ct.Cl. 1960), rev’d on other grounds, 207 N.Y.S.2d 904 (3d Dept. 1960).

It would seem that even had Mr. West wanted to sue the President for defamation in New York, his efforts would probably not be successful. One who wants to sue for defamation his a high burden to overcome and should seek experienced legal counsel to see if he or she has a case.

And as always, if you are considering an attorney to sue for defamation or any other type of “personal injury,” your office has over thirty years experience in these matters. So please do not hesitate to contact our office by either e-mail or by calling 800-344-6431.

britney spears jason alexander marriage annulment annulledIn an effort to bring in blog traffic discuss the laws relating to having a marriage annulled in New York, it is worthwhile to bring up Britney Spears’ petition to annul her marriage signed just hours after her Las Vegas marriage. The couple tied the knot in a Las Vegas chapel Saturday morning, January 3, 2004 at 5 AM. She signed a petition to have the marriage annulled that same day, it was filed Monday morning, and a judge granted the annulment on Tuesday, January 6th. The marriage lasted about 55 hours. Las Vegas Review Journal.

The manager of Nevada Divorce and Paralegal Services said that an annulment makes it “like [the marriage] never happened in the first place.” This is not the case in New York. Here, under NY Domestic Relations Law § 7, the marriage is only void “from the time its nullity is declared by  a  court  of  competent  jurisdiction,” meaning that the marriage was legally valid from the time it began until the court declares it null and void.

A judge may annul a marriage, even where the parties have children (see §§ 7 & 24), when either one of the parties meets any one of the following criteria:

  1. If a party is under age 18, then the judge may annul the marriage at his/her discretion, taking into account all of the facts and circumstances.
  2. If either party is mentally incapable of consenting to a marriage because he or she is unable to understand the consequences and significance of a marriage.
  3. If either party is physically and permanently incapable of entering into a marriage (i.e. having sexual relations). Sterility does not count.
  4. The marriage occurred through force, duress, or fraud. Fraud may be shown where one party conceals or misrepresents some fact so material to the essence of the marriage that the other party would not have entered the marriage had it known about that fact.
  5. One party has been mentally ill for five years or more before the marriage.

Britney Spears declared that the basis for her application for annulment was NRS 125.330, which allows annulment “for want of understanding.” This statute is worded very similar to New York’s, which allows annulment when “either of the parties to a marriage for want of understanding shall be incapable of assenting thereto.” New York’s law is almost the same allowing annulment when a party is “incapable of consenting to a marriage for want of understanding.” But Britney Spears said she  was “incapable” of agreeing to the marriage because she and her new husband “did not know each others likes and dislikes, each others desires to have or not have children, and each others desires as to State of residency.”

I don’t think this would work in New York. Incapacity does not mean that one simply doesn’t yet know certain information about the person she is marrying. It means she is actually incapable, due to “mental illness or retardation,”  of knowing what marriage really is, its significance and its consequences. Levine v. Dumbra, 604 N.Y.S.2d 207, 208 (2nd Dept. 1993). While some might claim, tongue in cheek,  that Ms. Spears does suffer from some mental defect, it is doubtful that a court would find that she suffers from any actual mental illness that deprives her of the capacity to understand what marriage is. She may not have known her new husband’s favorite color, but this hardly rises to the level of incapacity to understand the nature of marriage itself.

 If you need assistance with any matrimonial or family law matter, whether it be divorce, separation, child custody, annulment, adoption, or anything else, our office has over 30 years experience in these areas. So please contact our office by e-mail or call 800-344-6431 for help.

Picture courtesy of blog.canoe.ca.

According to an Associated Press report, an 18 year old freshman at Hofstra University came to police on Sunday (9/13/09) claiming that she had been tied up and gang-raped by five men in a men’s dormitory. After her statement to the police, they arrested four of the five young men. On Wednesday night, word that one of the young men had a cell phone video of their encounter with the young woman, showing that everything that occured between her and the five men had been consensual. This prompted her to recant her story and the police released the four men. The Nassau County District Attorney’s office is considering charges against the young woman, who’s name has not been released, for filing a false report with the police. 

Hofstra RapeCan this woman be prosecuted criminally for filing a false affidavit with the police? Would the young men have a valid civil case against her for false imprisonment?

According to New York Penal Law § 210.10,  one may be convicted of perjury in the second degree, a Class E Felony, if she:

  1. Swears falsely
  2. Does so in a document for which an oath or affirmation to tell the truth is required (like an affidavit)
  3. The person intends “to  mislead  a public servant (like a police officer)  in the performance of his official
      functions”
  4. The matter the person lied about is “material” to the proceeding/action about which she is lying.

If this woman’s false statement was not only made in an oral statement to police, but sworn to in an affidavit, then the public reports would seem to indicate that the other elements of felony perjury are there. If she is convicted of a Class E felony, the class of felonies with the shortest jail term, it is still possible for her to be sentenced for upwards of a year.

If the young men sue their accusor in a civil court for “false imprisonment,” they must be able to show that she had the intent to cause them to be confined, and that the young men had no “reasonable means of escape.” Parvi v. City of Kingston. Even if she only caused them indirectly (e.g. by using the police to do the imprisoning on her behalf) to become imprisoned, as opposed to physically imprisoning them herself, she can still be liable. 14 N.Y.Prac., New York Law of Torts § 1:24. And where one instigates the police to arrest someone may also be liable for the tort of false imprisonment. Celnick v. Freitag,  662 N.Y.S.2d 37 (1st Dept.1997).

In sum, if the public reports are based on admissible facts, then the Hofstra rape case accusor may not only be arrested and imprisoned for perjuring herself by falsely accusing these men of rape, they may also have a cause of action against her for monetary damages for causing them to be falsely imprisoned.

As always, if you need a criminal defense lawyer  in NY because you are charged with making a false statement to police, perjury, rape, or any other crime for that matter, you can always call our office, which has about thirty years of experience in criminal defense. On the other hand, if you need a personal injury attorney to sue someone for physically confining you if you need someone to defend you against such a claim, or you need to sue someone for any other type of injury, our office has significant experience in personal injury law as well. And you can contact our office at 800-344-6431 anytime 24/7.

Picture of three of the accused men, Kevin Tavares, second from left, Stalin Felipe, center, and Rondell Bedward, right, courtesy of Frank Eltman.