Constitutional Rights & Issues

iphone videoCareful about protecting the safety of his customers, A.R. Remington, owner of Fishinabarrel Gun Range, installed surveillance cameras to blanket his premises, except the restrooms. Last week while target practicing with his Glock 9mm, Politician Ronald Crump made an off color joke about his likely opponent in the upcoming presidential election using a reference that only grandfathers would have said. Not only were Crump’s comments recorded by Fishinabarrel Gun Range, his opponent’s aide Sly Tapr happened to video the conversation on his phone which he posted on the internet. The recording went viral. Can Fishinabarrel operate surveillance cameras without advising its customers like Crump? Can Sly Tapr legally videotape Ronald Crump?

Yes to both. Generally speaking, Texas law does not prohibit surreptitious audio or video recording, either criminally or civilly, making it unlikely that a recording of a fraternity off-color chant or a surreptitious recording of an interview in a doctor’s office would be illegal or civilly actionable in Texas.

Texas Penal Statutes

Texas law prohibits photographs, videotape or other broadcasts of another in a bathroom or private dressing room. However, a broader prohibition of such imagery without the other’s consent and with the “intent to arouse or gratify the sexual desire of any person” was struck down by the Texas Court of Criminal Appeals. Texas’ Highest Criminal Court , in part, opined: (1) taking photographs in public places is generally constitutionally protected, because photographs are generally protected expression; (2) this First-Amendment-protected conduct doesn’t lose its protection even when the photographer is intending to arouse or gratify sexual desires; and (3) the statute cannot be defended as a permissible privacy protection because narrower statutes banning photographs in certain private places, such as bathrooms or dressing rooms or “inside [a person’s] home” exist and would be constitutional. For the record, eavesdropping into telephone conversations or hacking into computers are different issues, for which there are many criminal statutes. Texas law, for example, prohibits recording telephone conversations unless one party to the conversation is aware of the recording. The federal Wiretap Act generally is directed to criminalizing government and private conversations intended to be used in court or by law enforcement.

But, Can You be Sued?

Maybe. Texas case law generally recognizes the tort of invasion of privacy which includes: (1) intrusion on seclusion, and (2) public disclosure of private facts.

Intrusion on Seclusion

Either A.R. Remington or Sly Tapr must intrude on Ronald Crump’s private place or private matters, for example, videoing in a bedroom, entering a home without permission, or following, spying on and harassing. As the Fishinabarrel surveillance and the Sly videotaping involved a public place and public matters, neither is liable for invasion of privacy.

Public Disclosure of Private Facts

The offended party must establish that publicity of the private information would be highly offensive to a reasonable person, such as sexual relations, family disputes, unpleasant or humiliated illnesses where there is no legitimate public concern. While the viewing public might be offended, Ronald Crump’s statements “off the record” are not the kind of private information that would satisfy any Crump complaint of public disclosure of private facts, either by A.R. Remington’s Fishinabarrel surveillance or Sly Taper’s social media posting.

Tilting the Scales in Your Favor

Employers. If you are an employer, post signs advising the area is protected by video surveillance and include notification of your right to undertake surveillance in your Employer’s Handbook, but not including bathrooms or dressing areas.

Retailers. There is value in advising your customers, generally, that there are surveillance cameras. Not knowing where they are may discourage improper customer conduct.

Nursing Homes. Consider granting written authorization to the nursing home staff for video surveillance of your loved one’s living area if circumstances warrant.

General “Expectation of Privacy”. Although this seems to be a buzz phrase of late, as far as Texas law is concerned, unless it fits into one of the criminal or civil elements detailed above, it’s a nice phrase that probably does not warrant broad application in Texas.

Past Related Articles

Recording a Telephone Conversation in Texas

Recording a Sports Event – “Gentlemen Start Your Videos”

Drone with CameraTrying to avoid the sweltering heat, “Uncle Jesse” Duke was in the garage working on his moonshine operation when he heard a loud shriek in the backyard. He ran to the back to find his niece, Daisy, sunbathing by the pool. Daisy shouted, “That drone keeps hovering over the pool area looking toward me. Do something about it Uncle Jesse!” Uncle Jesse quickly ran back to the garage, grabbed his trusty shotgun, and blew the drone out of the sky. An hour later Sheriff Coltrane showed up at Jesse’s house and asked, “Jesse, did you shoot a drone?” Jesse responded, “You’re durn right I did.” Sheriff Coltrane replied, “Well Jesse, that was Boss Hogg’s $2,000 drone you destroyed. I’m sorry, but I’m gonna have to arrest you.” Jesse said, “I didn’t commit no crime Sheriff. It’s my American right to defend my property.” Is Jesse right?

Can You Lawfully Shoot Down a Drone over Your Property?

Two reported cases in New Jersey and Kentucky deal with shooting drones flying over private property. Both times the shooters were charged with criminal mischief and related misdemeanors. As a starting point, your homeowner’s property is both the dirt and your improvements, and also a reasonable amount of airspace necessary to utilize your property. While you can’t complain that the American Airlines flight at 30,000 feet is trespassing on your property, a drone that’s only 200 feet off the ground…? Well, that’s probably a different story…

Earlier Tilting articles mentioned that each state has a “castle doctrine.” Although it varies by state, the “Castle Doctrine” generally allows homeowners to protect themselves, and in some cases their property, with force.   Beyond the “Castle Doctrine” Texas has another law that permits a property owner to use “force” when the property owner reasonably believes it is necessary to prevent a trespass on their land.   Using that Texas statute, the conduct may be justified and criminal liability may be avoided where the homeowner used “deadly force” (i.e., a gun) to shoot down the drone.

What about civil liability?

The homeowner’s action may also be justified against civil liability if the homeowner can prove: (1) the trespassing Drone was not privileged to be above the homeowner’s property (such as to avoid an emergency); (2) the homeowner reasonably believed the trespass by the Drone can only be prevented or terminated by the force used; and (3) the homeowner either requested the trespass cease, or reasonably believed that request would be useless or that substantial harm would be done before the request can be made. But there is no clear cut answer at this time, and these defenses would be decided by a court or jury.

Tilting the Scales in Your Favor

While no one wants their privacy intruded upon, we do not recommend shooting a drone out of the sky. While you might have good legal arguments to justify your actions – and probably have a jury’s sympathy – it will still be a costly process, particularly when you may be one of the first cases of this kind in the state. Obviously, your liability exposure is compounded if you happen to miss the drone and hit another person or their property.

Having said that the drone owner does not necessarily get away scot-free. In 2013 the Texas Legislature passed a law that creates a private cause of action against the drone owner or user for using a drone to capture an image of the property owner (or tenant) or their property and allows the property owner to recover $5,000 for all of the images captured during each trespass, as well as court costs and attorney’s fees. The drone owner or user may also be liable to the homeowner for trespassing and for one of the torts of invasion of privacy (check out our other article this month “Can You Videotape Someone Else’s Conversation”). Next month we’ll explore this issue from the drone owner’s perspective, including federal regulations and recommendations for flying unmanned drones.

CHL in TexasPolice Chief Steroid McMuscles reported that Colt Glockenhand who entered Wally-Mart with a shotgun was not charged with “engaging in the lawful open carry of a pump-action shotgun” – a violation of the Cut and Shoot town ordinance. However, when Colt entered Kreamy Kreme, loaded his shotgun and pumped it in front of witnesses, Chief McMuscles arrested him for breach of the peace. Wally-Mart did not have a posted sign prohibiting the open carry of guns; Kreamy Kreme did. Was Chief McMuscles on target?

Texas state law now pre-empts existing city ordinances in Dallas, Houston, San Antonio and Austin, despite a last minute effort by larger cities to opt-out of the “open carry” law. And, Yes, Chief McMuscles is right for two reasons: (1) ignoring a properly posted prohibition of either “open carry” or “concealed carry” is a Class A misdemeanor, (2) displaying a firearm or other deadly weapon in a public place in a manner calculated to alarm is a breach of the peace and a Class B misdemeanor.

Introducing the “open carry” bill, Wichita Falls Senator Craig Estes noted that Texas was one of only six states that did not permit its citizens to openly carry handguns under any circumstances. The other states are California, Florida, Illinois, New York, and South Carolina. To ban the open carrying of firearms, business must post a specifically worded sign at its entrance(s).

Tilting the Scales in Your Favor

Gray Reed attorney and Texas State Representative Jeff Leach tells us: “The ‘open carry’ bill was signed in to law by Governor Greg Abbott on June 13, 2015, and becomes effective (with a few minor exceptions) on January 1, 2016, making Texas the 45th state to allow some form of ‘open carry’ of handguns. Business and property owners who wish to prohibit open and concealed carry must closely observe the signage requirements.” Special thanks for his assistance in helping preparing this article, based on this legal update he recently drafted.

Signage Requirements:

  • To prohibit the “concealed” carry of handguns by licensed CHL (LTC) holders, the sign should include the following language (pursuant to Texas Penal Code Section 30.06):
    • “Pursuant to Section 30.06, Penal Code (trespass by license holder with a concealed handgun), a person licensed under Subchapter H, Chapter 411, Government Code (handgun licensing la), may not enter this property with a concealed handgun.”
  • To prohibit the “open” carry of handguns by LTC holders, the sign should include the following language (pursuant to Texas Penal Code Section 30.07):
    • “Pursuant to Section 30.07, Penal Code (Trespass by license holder with an openly carried handgun), a person licensed under Subchapter H, Chapter 411, Government Code (handgun licensing law), may not enter this property with a handgun that is carried openly.”
  • To prohibit BOTH concealed and open carry of handguns, both signs should be posted.

General Information:

  • HB 910 authorizes individuals (with some exceptions) to obtain a license to openly carry a handgun where licensed carrying of a concealed handgun is permitted.
  • Openly carried handgun must be in a shoulder or belt holster, whether loaded or not.
  • Licensing of both concealed (CHL) or openly carrying a handgun (LTC) will not change. Both will be called LTC.
  • CHL holders may continue to carry handguns both concealed and open carry at no additional fee, nor will they be required to attend additional training.
  • New LTC applicants will be required to complete training updated to reflect new requirements addressing restraint holders for secure carry of handguns.

Even with a CHL (LTC), these weapons may not be carried concealed or “open carry” regardless of whether the handgun is holstered pursuant to Texas Penal Code §46.03 & §46.035:

A concealed handgun cannot be carried while the person is intoxicated.

  • In the premises of an establishment licensed to dispense alcoholic beverages for consumption on the premises, which derives 51% or more of its income from the sale of alcoholic beverages and has a conspicuous warning prohibiting firearms, if posted.
  • On the premises of a public higher education institution or private or independent institution of higher education, including any public or private driveway, street, sidewalk or walkway, parking lot, parking garage or other parking area
  • Inside the secured area of any airport, however a person may carry any legal firearm into the terminal that is encased for shipment purposes and checked as baggage to be lawfully transported on an aircraft pursuant to airline and TSA regulations.
  • In a place of religious worship if a proper TPC §30.06 warning is given.
  • In a hospital or nursing home if a proper TPC §30.06 warning is given.
  • In any court or offices used by a court unless pursuant to written regulations or written authorization from the court.
  • At any polling place on Election Day.
  • At any meeting of any governmental body if proper notice is posted pursuant to Texas Penal Code §30.06.

PAST RELATED ARTICLES:

Glock on Board: Can you Keep a Handgun in Your Car if you Don’t have a Concealed Handgun License?

Texas Concealed Handgun Laws

Open-Carriers Pose a Threat to Restaurants with Liquor Licenses

WARNING to Liquor License Holders – “Open Carriers” Can Cost you your Liquor License

LEGISLATIVE UPDATE: HB 700 Seeks to Allow Handguns to be Carried Openly

Regardless of their personal stance on any hot-button social issue, most business owners do not want their place of business to be the focus of demonstrations on that issue – wisely so, because rarely does being the focus of a political demonstration go hand-in-hand with making money.  

However, recently some gun enthusiasts in Dallas put Chipotle in the spotlight by openly carrying loaded semi-automatic rifles – commonly known as “assault rifles” – into a downtown Dallas area Chipotle’s restaurant. Chipotle released a statement asking customers not to bring firearms into their restaurants, reading in part:  

Recently participants from an “open carry” demonstration in Texas brought guns (including military-style assault rifles) into one of our restaurants, causing many of our customers anxiety and discomfort. Because of this, we are respectfully asking that customers not bring guns into our restaurants, unless they are authorized law enforcement personnel.  Continue Reading Open-Carriers Pose a Threat to Restaurants with Liquor Licenses

“Open Carry” advocates recently made the news by openly carrying rifles and shotguns into Texas businesses. The Texas Alcoholic Beverage Commission (TABC) issued a REMINDER to all those who hold a Liquor License that businesses licensed to sell or serve alcoholic beverages are prohibited by state law from allowing rifles or shotguns in the building.

Specifically, Section 11.61(e) of the Alcoholic Beverage Code says that TABC shall, after the opportunity for a hearing, cancel a permit if the permittee knowingly allowed a person to possess a firearm in a building on the licensed premises. Some exceptions include licensed concealed handguns and peace officers.

Tilting the Scales in Your Favor

If an individual carries a rifle or shotgun into a TABC-licensed business and the business owner knowingly fails to remove them, the business owner’s TABC license is at risk. The business owner should ask the patron to leave the premises. If the patron refuses, the permittee may contact the police and file criminal trespassing charges under Texas Penal Code Section 30.05.

If this is of interest to you, stay tuned for more next month.

Whizzle Blour, a professor of surgery at University Medical School, complained to his supervisor that trauma residents at University Hospital were treating and operating on patients without an attending physician’s supervision in violation of Medicare and Medicaid law.  After agreeing to settle those federal claims, University Hospital stripped Whizzle of his faculty chair position claiming he was a poor administrator. Later he was fired. He filed a whistleblower suit alleging his demotion was in retaliation for reporting the federal law violations. Will Whizzle Blour prevail?

No. Whizzle Blour failed to prove all the required elements for retaliation under the Texas Whistleblower Act (TWA). Reporting the Medicare and Medicaid violations to his supervisor did not satisfy the TWA because the supervisor was not qualified as “an appropriate law enforcement entity.”

Continue Reading Whistleblowers, Do Tell?

Special thanks to guest blogger Alex Fuller for this month’s post.

            Who steals my purse steals trash; ’tis something, nothing;

            ‘Twas mine, ’tis his, and has been slave to thousands;

            But he that filches from me my good name

            Robs me of that which not enriches him,

            And makes me poor indeed.

                        –Othello Act 3, Scene 3

While on a date to the Laugh Factory Comedy Club, Terry Tellsall busted a gut laughing and was rushed to Texas General Hospital. Incensed by the treatment and bedside manner he received from Dr. B.D. Manner, Terry barraged his friend Cindy Cussin with texts detailing Dr. Manner’s inability to remember critical surgical procedures and his comments that “with a belly that size, you’re lucky you only busted one gut.” The next day, Terry posted his accusations on a popular doctor-rating website.

Luckily for Terry, the attending Nurse Nancy smelled Dr. Manner’s whiskey breath, heard his comments, and thankfully reminded him of the right procedure. However, Terry’s friend Cindy Cussin was Dr. Manner’s cousin and forwarded Terry’s texts to him. When Dr. Manner read the texts and received the early morning Google Alert with Terry’s website posts, he immediately instructed Able Attorney, Esq., to file a defamation lawsuit against Terry. Is Terry liable for libel?

Probably not. Truth is still a defense to any claim of verbal (slander) or written (libel) defamation. Better yet, the 2011 Texas Anti-SLAPP statute makes it harder for defamation lawsuits to be used as a bullying tactic.

Continue Reading The Case of the Defamed Doctor – SLAPP’ing Down Defamation Cases in Texas

Billy Bob Cooter is spending a Sunday doing what he loves most – attending a NASCAR race to watch his favorite driver Ricky Bobby pilot the #26 Wonder Bread car.  It’s a close and exciting race as the drivers begin the final lap towards the checkered flag.  With Ricky Bobby in contention, Cooter decides to video the race’s final seconds.  As the car rounds the final turn, Ricky Bobby and another driver “trade paint.”  The collision sends the #26 car violently into the wall which showers the crowd in debris and seriously injures several spectators.  Cooter catches the entire incident on his iPhone and then proceeds to post the graphic video on YouTube, which immediately receives thousands of views.  NASCAR executives see the video on YouTube and have it removed on copyright grounds.  They argue that posting the video violates the limited license granted to Cooter (and all attendees) on the back of his ticket because NASCAR owns the intellectual property of the race and all of its associated images.  Is Cooter within his right to post the video?

Yes.  While NASCAR owns the portion of the video dealing with the race, “facts” and “news” are not subject to copyright protection. This issue was addressed in 1997 when the Second Circuit Court of Appeals ruled that the NBA could not prevent Motorola from broadcasting scores and stats from a game, because while the broadcast was protected, facts and news were not.  While NASCAR could argue that the broadcast of the race was their property, at some point the race changed from a copyrighted event to a non-copyrighted “news” event when the accident occurred.

Earlier this year, Tyler Anderson, a high school student, posted his 1 minute, 16 second video of a horrific NASCAR crash on YouTube.  It was initially reported that NASCAR believed the video infringed on its copyrights and YouTube removed the video stating “This video contains content from NASCAR, who has blocked it on copyright grounds.”  However, NASCAR later maintained that the request was made out of respect to the dozens of injured spectators.  Subsequently, YouTube reposted the video stating “Our partners and users do not have the right to take down videos from YouTube unless they contain content which is copyright infringing, which is why we have reinstated the video.”

As observed by John McQuaid in his blog for Forbes Magazine:

There are inescapable contradictions between asserting a legal claim over recording everything that happens in a certain place, and then filling that place with tens of thousands of people with the capacity to shoot video and instantly upload it to the Internet, especially when something newsworthy happens, and when your organization is already managing a strong social media effort that depends on interaction with fans.  This is where the privatization and monetization of everything meets with the democratization of the digital age.

If they’re smart, the NASCARs of the world will make just enough allowances for news events, while doing what they can to keep a tight lid on video sharing and other forms of fan reporting, from photos to tweets, when nothing out of the ordinary is going on.

But even this safety valve approach is probably untenable as devices get smaller and sharing becomes more a seamless part of life.  You cannot contain that urge.  You cannot shut down thousands of devices, or paralyze thousands of tweeting thumbs.  The notion that no information except the official kind can escape the legal-gravitational black hole of the Daytona Speedway is absurd.  It’s not like everyone doesn’t already know that.

Anderson’s video raises all sorts of interesting legal issues and highlights the difficulty of preventing the dissemination of images and video in this age of ubiquitous iPhones and social media.  The issue is particularly interesting given the way NASCAR and other sports have embraced the internet and the posting of fan videos on social media.

Assult RifleLast month Tilting pondered an owner’s liability to customers from violence at the midnight showing of “Paladin – the Gentleman Black Knight” – the remake. Patrons and employees alike were ambushed at the Orpheum Theater. According to news reports the Paladin look-alike bought a ticket. After the movie started he slipped out through an emergency exit propping open the door. After donning riot gear he re-entered, tossing gas canisters and shooting into the crowd.  Subsequently filed lawsuits alleged insufficient security for anticipated crowds and failed alarm system controls on the emergency exit. Is the business owner Pall Adium liable to his injured EMPLOYEES?

Last month we concluded that Pall Adium is probably not liable to his customers. If a business owner’s employees are injured, however, what then?

Employees Assaulted by Third Party?

Like visiting patrons, Pall’s employees have an unlikely claim against a business owner for violent acts in the workplace committed by a non-employee unless there is a “special relationship” between the employer and either the perpetrator or those who are injured. In short, should Pall have reasonably known of the danger? If Pall knew of a threat to the safety of his workers and patrons and knows either of a particular assailant or victim (employee), rather than just a mere general threat, he may be responsible for failing to warn the victim or otherwise to take reasonable protective measures.

Employees Assaulted by Another Employee?

More often than not, the workplace assailant is an employee or former employee who believes he/she was wronged by the employer. More than just having a responsibility to protect employees when he knows of a “problem employee,” Pall also has a duty in the hiring and retention of his employees. For example, Pall could be liable for failing to investigate an employee’s background before hiring or if he fails to fire after having reason to suspect that the employee might commit a violent act. In addition to OSHA/MOSHA federal standards to maintain a safe workplace, Pall has a similar duty at common law to provide a safe workplace for his employees, to warn his employees about any lurking dangers and to impose and enforce reasonable rules to govern his employees’ conduct.

Tilting the Scales in Your Favor

Warning Signs. Even without specific knowledge of a disgruntled employee or the threat of an assailant, Pall Adium should be aware of suspicious, tell-tale behavior like:

  • unexplained increases in absenteeism
  • repeated violations of company policies
  • behavior bordering on paranoia
  • depression and withdrawal
  • overreaction to changes in procedure
  • verbal abuse or threats to co-workers
  • frequent, vague physical complaints
  • explosive outbursts of rage without provocation

Reasonable Precautions

If not already a part of his HR policies, Pall should consider establishing (and including in an employee handbook) policies and procedures to address pre-employment screening, performance evaluations and a progressive disciplinary process. As a result of a Texas law that became effective September 2011, Texas employers should amend their workplace violence policies to permit employees to store legally owned guns in their vehicles while they are at work.

Good News! Workers Compensation Insurance.

Generally speaking, employees injured on a jobsite covered by workers compensation insurance may only recover from that insurance (and not from their employer) injuries and lost wages, even when the injury is caused by criminal assault.

SEE ALSO:

Will this Legislative Session impact business owners? With the assistance of our own LRM Freshman State Rep. Jeff Leach, R-Plano, Tilting the Scales will periodically post updates on bills that might affect your business, along with an occasional humorous twist.

As an example and keeping in the tone of this month’s postings on gun control, as the federal government moves forward on its plans to tighten gun restrictions, Texas lawmakers are proposing legislation to expand gun rights in the state. The latest proposal is HB 700, a so-called “open carry” bill filed last week by State Rep. George Lavender, R-Texarkana, to allow individuals with concealed handgun licenses to carry weapons in plain view on a belt or shoulder holster. Similar legislation failed last session. Other recent proposed policy changes include allowing concealed handguns on college campuses, and arming and training school officials, including teachers.

More summaries to come as we continue through this legislative session.