Is Bowe Bergdahl a Deserter? A Traitor?

If you’ve watched the news or accessed your social media accounts over the past week, then you’ve heard at least something about the return of American POW Sgt. Bowe Bergdahl in exchange for five Taliban detainees held at Guantánamo Bay, Cuba.  There are numerous issues swirling around, but I want to hone in on the issues raised by the title of this post.

Almost immediately after Bergdahl’s return was announced, cries of “deserter” and even “traitor” were heard.  I think we’ve all come to expect such histrionics from media personalities and other commenters, but the denunciations were’t limited to those quarters.  In this instance, it was also Bergdahl’s fellow soldiers lobbing the accusations.  Perhaps none put it more plainly than Nathan Bradley Bethea, writing for The Daily Beast:

I served in the same battalion [the 1st Battalion, 501st Parachute Infantry Regiment] in Afghanistan and participated in the attempts to retrieve him throughout the summer of 2009. After we redeployed, every member of my brigade combat team received an order that we were not allowed to discuss what happened to Bergdahl for fear of endangering him. He is safe, and now it is time to speak the truth.

And that the truth is: Bergdahl was a deserter, and soldiers from his own unit died trying to track him down.

That’s a strong accusation, but Bethea isn’t alone in making it.  I think, however, it’s fair to ask whether such an accusation has as much merit as some folks seem to think it does.

As a member of the armed forces, Bergdahl is subject to the Uniform Code of Military Justice.  As you might expect, desertion is one of the “punitive articles” of the UCMJ and it has a codified definition. Section (a) of Article 85 of the UCMJ reads as follows:

(a) Any member of the armed forces who—

(1) without authority goes or remains absent from his unit, organization, or place of duty with intent to remain away therefrom permanently;

(2) quits his unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service; or

(3) without being regularly separated from one of the armed forces enlists or accepts an appointment in the same or another one of the armed forces without fully disclosing the fact that he has not been regularly separated, or enters any foreign armed service except when authorized by the United States;

is guilty of desertion.

Obviously, subsection (b) doesn’t apply in Sgt. Bergdahl’s case, so we can skip it.  As far as section (c) is concerned, I don’t think there’s any real question as to how a court-martial would come down on the legal question of whether the alleged offense was committed in time of war.  Consequently, assuming the military prosecution decides to seek the death penalty against Bowe Bergdahl, this section would seem to give them that option.

In a prosecution for desertion, the focus would be on whether the government could establish the elements of one of the subsections under section (a).  Again, I think it’s obvious that subsection (3) does not fit the circumstances so we need not discuss it.  Subsections (1) and (2) seem to be a better fit.  There is no disagreement that Bergdahl was “absent from his unit, organization, or place of duty” and that such absence was “without authority.”  I’m not sure what the technical difference between going or remaining absent in subsection (1) and quitting “his unit, organization, or place of duty” in subsection (2) is, but it seems to me that a common definition of “quit” is to leave a place.  I think it would be safe to assume that Bergdahl’s case would meet the definition of either of the first parts of those subsections.

The real question, however, lies in the latter parts of subsections (1) and (2).  There we find that the absence or quitting must be either “with intent to remain away therefrom permanently” or “with intent to avoid hazardous duty or to shirk important service.”  Written in that way, the UCMJ makes desertion a crime of specific intent.  Thus, the clearly established facts of Bergdahl’s leaving the base are in sufficient by themselves to convict him of desertion.  The prosecution would also need to prove either that Bergdahl intended to leave permanently or that he intended to avoid hazardous duty or shirk important service.

I don’t know whether the prosecution would be able to prove that element of the offense beyond a reasonable doubt, but Bergdahl certainly didn’t help himself in that regard if some of the statements he apparently made to his fellow soldiers are true.  For instance, according to Cody Full, a member of Bergdahl’s platoon “He had sent all his belongings home — his computer, personal items.”  Bergdahl also reportedly talked often of wanting to see what was on the other side of the mountains and wondered whether he could get to China from there.  Other soldiers claim that Bergdahl talked about walking to India and say that he gave the impression that he wanted to go explore Afghanistan without the military ordering him around.

A good defense attorney can argue that those things don’t prove beyond a reasonable doubt an intent to leave permanently.  They certainly raise questions, but a desire to explore doesn’t equal a desire to desert.  Certainly the fact that “He wouldn’t drink beer or eat barbecue and hang out with the other 20-year-olds” proves nothing beyond the fact that Bergdahl wasn’t like many of his fellow soldiers.  Being a little bit different or even odd is no crime.

The most damning piece of evidence against him, however, might have been one of his own making.  According to a former senior military officer “Bergdahl left behind a note in his tent saying he had become disillusioned with the Army, did not support the American mission in Afghanistan and was leaving to start a new life.”  That note, if it exists and can be entered into evidence, would probably seal the deal against Bergdahl.  The other statements and circumstances can be argued around; even the fact that Bergdahl only “took with him a soft backpack, water, knives, a notebook and writing materials, but left behind his body armor and weapons” suggests that he did not intend to leave permanently.  On his best day, I doubt that Johnnie Cochran could come up with a way to counter the effect of that note.

Still, just because the military potentially has an airtight case against Bergdahl (depending on the existence and authenticity and admissibility of the note), that doesn’t necessarily mean they’ll go forward with a desertion prosecution.  There are political considerations that I won’t consider fully here.  It seems to me, however, that not the least of those would be the fact that (at least as far as I know), no American prisoner of war has even been tried for desertion.

As for the charge of treason, I think there’s almost no chance that he will be charged and effectively no chance at all that the government could hope to get a conviction.  Treason, of course, is the only crime specifically mentioned in the Constitution (in Article III, Section 3):

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

The counterpart in the U.S. Code is 18 U.S. Code § 2381. The UCMJ’s punitive articles contain a charge for “aiding the enemy” (Article 104), but that’s not quite the same thing as “treason” (although it is one of the articles under which Chelsea/Bradley Manning was prosecuted).

If there’s evidence  that Bergdahl levied war against the United States or adhered to or aided its enemies, I haven’t seen anything to that effect reported anywhere.  Granted, I’m not privy to all of the information that Secretary Hagel and President Obama might have, but even Bergdahl’s harshest critics don’t seem to be suggesting that he did anything treasonable.  Even if Bergdahl is guilty of desertion, leaving his post, by itself, does not seem to me to rise to the level of any of the required elements of a prosecution for treason.

In addition, it seems completely impossible that the government could come up with two witnesses to the same overt act.  If Bergdahl aided the enemy or waged war against the United States, the only witnesses to any such act would be the enemies themselves.  The implications for a potential treason prosecution should be obvious.  Neither do I think the government would expect Bergdahl to make an open confession in court.  In other words, the idea of prosecuting Bowe Bergdahl for treason is not going to go anywhere, regardless of how much some people might be calling for it.

And since this seems to be a theme for me lately, I’ll say a word about defamation.  The terms “desertion” and “treason” are terms with precise definitions.  Bowe Bergdahl is, as of this writing, still an active member of the military; he is a professional soldier.  False statements that tend to injure a person in his profession are considered defamation per se (i.e., the plaintiff is not required to prove special damages, but damages are presumed).  If I were one of the members of Bergdahl’s units, I would be very careful about what I say about him.  He might get convicted of desertion, but he might not.  In that event, I don’t see how those who called him a “deserter” can escape a defamation lawsuit by claiming some version of “Well, that’s not what I meant.”  Yes, Bergdahl walked off base without permission and didn’t come back; those are the facts of the situation, but whether he “deserted” is a slightly different question, I think.

Regardless of whether his fellow soldiers could maneuver their ways around that legal issue, calling what he did “treason” is something I would consider extremely ill-advised.  Accusing a member of the military of the crime of waging war against the United States and helping its enemies is, without a doubt, the most damaging thing to a soldier’s professional reputation that anyone could say.    I can’t say that I know that Bowe Bergdahl is litigious enough to ever go after any of the statements that have been made about him (and based on what I read about him in Rolling Stone’s piece from a couple of years ago, I think he’d much rather fade back into obscurity), but it seems to me that if he wanted to he would have at least arguable grounds to do so.


Reset the Net

So glad to see this from the WordPress team today!

The Blog

A year ago today, we joined the world in shock on learning that governments were spying on internet users around the world. Tapping internet service providers’ undersea cables, intentionally and secretly weakening encryption products,  surreptitiously collecting everything from call metadata to photos sent over the internet by US citizens — nothing was off limits.

Just as troubling as the revelations themselves is the fact that since last summer, little if anything has changed. Despite a lot of rhetoric, our three branches of government in the United States have not made many concrete steps toward truly protecting citizens from unchecked government surveillance.

Automattic has been a strong supporter of efforts to reform government surveillance. We’ve supported reform legislation in Congress, and participated in the Day We Fight Back, earlier this year. More importantly, we aim to make our own legal processes for securing the information our users entrust to us…

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The right to remain silent . . . and not be sued for defamation

Whatever the reason, it seems that doping allegations and defamation go together.  This time, however, the admitted doper is the target of a defamation lawsuit for implicating a former coach in his rules violations.

Tyson Gay competed for the United States in the London Olympics as part of the silver-medal-winning 4×100-meter relay team.  After he tested positive for banned substances last year, Gay reportedly told the U.S. Anti-Doping Agency (USADA) that his former coach, Jon Drummond, (himself a winner of the gold medal in 4×100 m relay at the 2000 Summer Olympics) had told and helped Gay use the substances in question.  As pointed out by the Fort Worth Star-Telegram, “Gay did not get the typical two-year suspension because the USADA said he is cooperating with investigators and providing information on others who might have used performance-enhancing drugs.”  In fact, the lesser penalty will “allow[] Gay to return to competition this summer.”

As one might imagine, Drummond did not take Gay’s accusations lightly.  He has sued Gay and Travis Tygart, the chief executive officer of the USADA in Texas state court.  USADA predictably called the lawsuit “baseless” and Drummond’s lawyer issued a statement saying that “Mr. Drummond categorically denies ever having encouraged Tyson Gay, or any other athlete, to use any banned substance.”

My initial thought upon seeing this story was that Drummond obviously had a loser of a case thanks to the litigation privilege.  For those that aren’t familiar with defamation law, the litigation privilege is the legal doctrine that statements made in the course of judicial proceedings cannot form the basis for a defamation lawsuit.  The basic idea is that parties should be free to get at the truth in the course of litigation without fear of reprisal should later-discovered evidence negate claims made earlier in the process.  In most jurisdictions the privilege is even so broad as to cover statements made in anticipation of potential litigation.

It dawned on me, however, that Gay might not be able to claim the litigation privilege.  The privilege applies to communications made prior to and in the course of judicial proceedings, but were judicial proceedings in contemplation in his situation?  It seems to me that they might not have been.  I don’t know all the ins and outs of how the USADA makes these decisions, so it’s possible that there might be some quasi-judicial process regarding athlete bans.   Of course, remembering back to my Liliya Shobukhova post from not too long ago, a decision by the USADA could be appealed to the Court of Arbitration for Sport.  Perhaps that would be sufficiently judicial to bring Gay’s statements to the USADA under the umbrella of the litigation privilege.

If Gay felt the need to confess to the USADA rather than fight the allegations against him, that was certainly his right.  Depending on the evidence against him, it may very well have been the better choice.  Gay cannot, however, make false statements about Drummond or others to the USADA, especially statements that would injure a running coach such as Drummond in his professional reputation.  Obviously, implicating Drummond in any sort of doping scheme would seriously damage his ability to continue his career as a track coach.

As with any other defamation case, truth is an absolute defense.  If it turns out that Drummond was involved in activities banned by the USADA, the his lawsuit will obviously go exactly nowhere.  We’ll just have to wait and see how this one turns out.

Better for Good Samaritan Ultrarunners to Pass By on the Other Side? (Part 2)

Find the first part of this discussion here.  Leaving Virginia, what about the Good Samaritan laws in each of the states where one of the races that comprises the Grand Slam of Ultrarunning is held (i.e., Western States in California, Wasatch in Utah, Vermont 100 in Vermont, and Leadville in Colorado)?


The Western States 100-Mile Endurance Run will take place this year on June 28-29 on trails in California’s Sierra Nevada mountains.

A photo of the Duncan Canyon section of the Western States 100 course.  Image by Chad Silker at

Right away, looking at California’s law, we can identify a significant difference from Virginia’s.  Reading California Health and Safety Code § 1799.102(a) we find the following (my emphasis):

No person who in good faith, and not for compensation, renders emergency medical or nonmedical care at the scene of an emergency shall be liable for any civil damages resulting from any act or omission. The scene of an emergency shall not include emergency departments and other places where medical care is usually offered. This subdivision applies only to the medical, law enforcement, and emergency personnel specified in this chapter.

Thus, as Professor Sutton points out, California is one of “eight states [that] provide no immunity to private individuals who do not meet certain qualifications of training or certification.”  Reading down a bit further in the statute we find subsection (b)(2) which says the following (my emphasis):

Except for those persons specified in subdivision (a), no person who in good faith, and not for compensation, renders emergency medical or nonmedical care or assistance at the scene of an emergency shall be liable for civil damages resulting from any act or omission other than an act or omission constituting gross negligence or willful or wanton misconduct. The scene of an emergency shall not include emergency departments and other places where medical care is usually offered.

So in the case of an untrained volunteer who tries to provide assistance at the scene of an emergency, their protection from liability is limited in California when compared to what their liability would be in Virginia.  This places California in what Professor Sutton calls “Level Five.”  According to her analysis (my emphasis):

This changes nothing from common law tort liability and appears to make these statutes of no value for the rescuer at all. The fifth group of states maintains their position at the bottom of the list because they provide no immunity to private individuals, but these states limit the persons provided with immunity to various licensees or categories of workers.

In a race like Western States, that analysis of the effect of the law is highly unfortunate.  Taking a look at the “Medical Risks” section of the Western States 2014 Participant Guide gives an idea of what hazards runners are up against.  Race organizers specifically note that “the inaccessibility of much of the trail will make it difficult or impossible for medical assistance to reach the runner immediately” and they caution runners to “be aware of the number of miles to the next [medical checkpoint], realizing that getting rescue vehicles into these areas can be difficult, if not impossible” and finally (italics in original) “there is absolutely no assurance that aid or rescue assistance will arrive in time to give you effective assistance should you become sick, incapacitated or injured.”

The obvious implication of those facts is that other race participants might be the only ones immediately on the scene of a medical emergency; there is simply no guarantee that they will have the training or certification that California requires in order to be immune from liability for injuries they might cause while trying to help.  I think the moral/ethical incentive to help is always strong (and based on my limited experience it very well may be stronger among the ultrarunning community), but if granting an additional legal protection would be an additional incentive to act when someone’s life might be on the line, California should see that as something worth doing.


According to the race’s website:

The Wasatch Front 100 Mile Endurance Run is held in Utah the first Friday and Saturday after Labor Day each year. The run stretches from East Mountain Wilderness Park, Utah to Soldier Hollow, Utah and covers some of the most beautiful scenery the Wasatch Mountains have to offer. There is a cumulative elevation gain of approximately 26,951 feet, as well as a cumulative loss of approximately 26,454 feet throughout the course.

In addition, because the race is held in September, temperatures can range from the 80s to the 20s.  With Wasatch we have another race that, much like Western States, is held in an area where parts of the course might not be readily accessible in case of a medical emergency.  Taking a look at Utah’s Good Samaritan law (Utah Code § 78B-4-501) we find this:

A person who renders emergency care at or near the scene of, or during an emergency, gratuitously and in good faith, is not liable for any civil damages or penalties as a result of any act or omission by the person rendering the emergency care, unless the person is grossly negligent or caused the emergency. As used in this section, “emergency” means an unexpected occurrence involving injury, threat of injury, or illness to a person or the public, including motor vehicle accidents, disasters, actual or threatened discharges, removal, or disposal of hazardous materials, and other accidents or events of a similar nature. “Emergency care” includes actual assistance or advice offered to avoid, mitigate, or attempt to mitigate the effects of an emergency.

Again we see the good faith and voluntary/unpaid requirements present in other statutes.  Utah, is what Professor calls a “Level Two” state; in other words, the Good Samaritan law grants immunity “unless there is gross negligence or worse, willful or wanton behavior, and there is an affirmative demonstration of proof that the actions were taken in ‘good faith.'”  While this statute obviously doesn’t create quite the same incentive as Virginia’s does, it does represent a departure from the common law negligence standard that would otherwise apply (as in the case of California’s law).  Comparatively speaking, then, runners participating in the Wasatch 100 in Utah could presumably feel more free to offer assistance to a fellow runner in case of a medical emergency.


The Vermont 100, as the name implies, is a 100-mile race held every year in the hills of Vermont.  The overall altitude and the ascents and descents are less compared to the Sierra Nevada or Wasatch ranges, but nevertheless, the race isn’t exactly a leisurely jog through your neighborhood park either.  The course itself is described as a shamrock loop, so the chance of getting out on the course and dangerously far from medical assistance is probably less than in the case of the first two races.  Still, here is Vermont’s Good Samaritan law (12 V.S.A. § 519):

(a) A person who knows that another is exposed to grave physical harm shall, to the extent that the same can be rendered without danger or peril to himself or without interference with important duties owed to others, give reasonable assistance to the exposed person unless that assistance or care is being provided by others.

(b) A person who provides reasonable assistance in compliance with subsection (a) of this section shall not be liable in civil damages unless his acts constitute gross negligence or unless he will receive or expects to receive remuneration. Nothing contained in this subsection shall alter existing law with respect to tort liability of a practitioner of the healing arts for acts committed in the ordinary course of his practice.

(c) A person who willfully violates subsection (a) of this section shall be fined not more than $100.00.

Subsection (a) is really what sets Vermont apart.  Fans of the television series Seinfeld might remember that it was a violation of Vermont’s duty to assist law that led to the arrest of Jerry, George, Elaine, and Kramer in the series finale.  Runners at the Vermont 100 who keep running rather than stop to assist an injured runner (who is not already being assisted by someone else) could, in theory, suffer the same fate and be subject to criminal prosecution and a fine for that failure.  Complicating matters is the fact that Vermont lands in Professor Sutton’s “Level Four.”  Those states, including Vermont, “use the standard of merely ‘gross negligence’ to deny immunity to the rescuer, with no consideration of ‘good faith.'”  This puts Vermont in a category of states in which “being a Good Samaritan becomes risky in terms of immunity protection.”

The Vermont 100 course isn’t nearly as treacherous as some ultramarathon courses and the loop design means that runners will pass by medical assistance on a regular basis.  Given the fact that Vermont law creates a harsh standard for fellow runners helping those who might need emergency care, it’s probably a good thing that the race course tends toward the safer end of the scale.


The Leadville 100 Trail Run in Leadville, Colorado, is billed as the “Race Across the Sky.”  Considering that the race follows a course through the Colorado Rockies never drops below about 9,200 feet above sea level, I’d say the title of “Race Across the Sky” is well-deserved.

This is how supplies are transported to the aid station at Hope Pass, elevation 12,600 feet. Image by Sylvia Muprhy from

Given the remoteness of parts of Leadville’s out and back course, what sort of protection does Colorado’s God Samaritan law offer to runners?  The section we want is found at Colo. Rev. Stat. Ann. § 13-21-108(a):

Any person licensed as a physician and surgeon under the laws of the state of Colorado, or any other person, who in good faith renders emergency care or emergency assistance to a person not presently his patient without compensation at the place of an emergency or accident, including a health care institution as defined in section 13-64-202 (3), shall not be liable for any civil damages for acts or omissions made in good faith as a result of the rendering of such emergency care or emergency assistance during the emergency, unless the acts or omissions were grossly negligent or willful and wanton. This section shall not apply to any person who renders such emergency care or emergency assistance to a patient he is otherwise obligated to cover.

Like Utah, Colorado falls in Professor Sutton’s “Level Two.”  If a volunteer can show that they acted in good faith, they will be protected from liability unless they were grossly negligent  or acted willfully to injure the person in question.  Again, this statute represents a departure from the baseline common law standard, and although it doesn’t give the maximum amount of immunity to Good Samaritans, it does create more of an incentive to help than in some other states.

As far as the Grand Slam of Ultrarunning goes, Western States is probably the “most dangerous” when we look at Good Samaritan laws.  A difficult and inaccessible course is coupled with laws that create no additional incentive for fellow runners to help each other when they are injured.  At the Vermont 100, while the law is not friendly to Good Samaritans, the potential for a more accessible and forgiving course minimizes some of the danger.  With Wasatch and Leadville the courses present dangers to runners, but the Good Samaritan laws create incentives for fellow runners to help one another until medical personnel can arrive.  Perhaps some of this information might make a good case for putting the Old Dominion 100 back in the Grand Slam series thanks to Virginia’s more protective Good Samaritan law?

Better for Good Samaritan Ultrarunners to Pass By on the Other Side? (Part 1)

As I mention on my About page, I ran my first ultramarathon in April 2014 at the Virginia 24 Hour Run for Cancer in Hampton, Virginia.  The 24-hour race takes place at Sandy Bottom Nature Park on a 3.75 mile, USATF-certified loop course (shaped somewhat like a ‘q’).  Obviously my frame of reference is very limited, but I feel like the race was the ideal introduction to the world of ultramarathons for me.  There were plenty of volunteers and well-placed and well-stocked aid stations (little food was provided but there was plenty of water and sports drink).  Because it was a loop course, I was able to set up my bag of gear and goodies, knowing that it would be there the next time I came around to complete a loop.  The loop course also gave me plenty of opportunities to see the race leaders, something that would never have happened on a point-to-point course.

Sadly, the loop course also forced me to witness a frightening situation: a fellow runner collapsed on the course in the afternoon.  I saw him lying on the ground from about a hundred yards away and arrived where he was just as other runners were beginning to administer CPR.  Because we were on the back side of the course, another runner ran back to the start/finish to get assistance.  Emergency medical personnel arrived shortly thereafter and evacuated him to a hospital.  Thankfully, the runner is now on the road to recovery and that is due, in part, to the actions of a handful of his fellow runners who were in the right place at the right time.

That those runners could act to save this man’s life without fear of reprisal should they have injured him while administering CPR is the subject of this post.  Regardless of whether they were aware of it at the time, in Virginia they were protected from liability in a civil lawsuit by what is commonly known as a Good Samaritan law.  The law (a version of which exists in every state) takes its name from Jesus’ Parable of the Good Samaritan in the New Testament.

The Parable of the Good Samaritan as depicted by Dutch Golden Age painter Jan Wijnants.

The parable isn’t long, so I’ll quote it in full:

Jesus replied, “A man was going down from Jerusalem to Jericho, and he fell among robbers, who stripped him and beat him and departed, leaving him half dead. Now by chance a priest was going down that road, and when he saw him he passed by on the other side. So likewise a Levite, when he came to the place and saw him, passed by on the other side.But a Samaritan, as he journeyed, came to where he was, and when he saw him, he had compassion. He went to him and bound up his wounds, pouring on oil and wine. Then he set him on his own animal and brought him to an inn and took care of him. And the next day he took out two denarii and gave them to the innkeeper, saying, ‘Take care of him, and whatever more you spend, I will repay you when I come back.’ Which of these three, do you think, proved to be a neighbor to the man who fell among the robbers?” He said, “The one who showed him mercy.” And Jesus said to him, “You go, and do likewise.”

The Holy Bible, English Standard Version Copyright © 2001 by Crossway Bibles, a division of Good News Publishers.

Good Samaritan Law in Virginia

In Virginia, the Good Samaritan law is found in Va. Code § 8.01-225.  The entire section is somewhat lengthy so I’ll stick to the sections that are relevant for the topic at hand.  The first section reads like something of a catch-all and provides that anyone who:

In good faith, renders emergency care or assistance, without compensation, to any ill or injured person (i) at the scene of an accident, fire, or any life-threatening emergency; (ii) at a location for screening or stabilization of an emergency medical condition arising from an accident, fire, or any life-threatening emergency; or (iii) en route to any hospital, medical clinic, or doctor’s office, shall not be liable for any civil damages for acts or omissions resulting from the rendering of such care or assistance.

I’ve put two important qualifiers in bold and italicized the portion that grants immunity from civil liability.  Subsections (i)-(iii) specify the situations in which this section applies.  “Good faith” refers to the standard of care that must be met in order to protect a person from liability.  Writing in Suffolk University Law School’s Journal of Health & Biomedical Law (pdf) , Professor Victoria Sutton (Paul Whitfield Horn Professor and Director of the Center for Biodefense, Law and Public Policy at Texas Tech University School of Law) points out that “Good faith includes, but is not limited to, ‘a reasonable opinion that the immediacy of the situation is such that the rendering of care should not be postponed.'”  In addition, “Good faith is the lowest, or easiest, standard to meet with no other qualifications.”  For that reason, Professor Sutton ranks Virginia in what she calls “Level One” with 17 other states that “provide the greatest incentive to the Good Samaritan.”

In addition, note that in order to claim the protection of this statute, one must be acting without compensation.  In other words, the protections of this statute are available to volunteers, but not to medical professionals at their place of work; a doctor who happens upon the scene of an accident on his way home would, however, be protected by this statute while rendering care without pay.  In the specific case that came up during my race, there’s another section of Virginia’s Good Samaritan law that would apply (subsection A.6):

Any person who . . . In good faith and without compensation, renders or administers emergency cardiopulmonary resuscitation (CPR) . . . or other emergency life-sustaining or resuscitative treatments or procedures which have been approved by the State Board of Health to any sick or injured person, whether at the scene of a fire, an accident, or any other place . . . shall be deemed qualified to administer such emergency treatments and procedures and shall not be liable for acts or omissions resulting from the rendering of such emergency resuscitative treatments or procedures.

Here we have the same qualifiers of “good faith” and “without compensation,” but the section also adds that such a person “shall be deemed qualified” to perform CPR.  Thus, even a bystander who has not been trained in CPR would likely be able to claim the protections of this statute.

Diagram demonstrating proper CPR technique

Because CPR involves the continuous and forceful compression of the chest cavity, injuries can and do occur from the treatment itself.  Most commonly, fractured ribs or sternal fractures are reported, although other more serious injuries have been known to occur.

I don’t know whether any injuries resulted from the runners’ administering of CPR at my race (although even if I did know, I don’t think writing about it here would be respectful of my fellow runner’s privacy).  Supposing that a broken rib or something more serious had resulted, it’s very unlikely that anyone who administered emergency care or CPR could be held liable.  Every indication seems to be that these runners acted in good faith, i.e. they acted on “a reasonable opinion that the immediacy of the situation is such that the rendering of care should not be postponed.”  Thus, the statute would protect the actions they took in an effort to safe their fellow runner’s life even if he had been injured in the process.

That covers Virginia law and the situation that I witnessed, but there’s quite a bit more to cover on this topic.  Although, as I noted above, every state has a Good Samaritan law of some sort, their popular names are about the only thing that these laws have in common. Be sure to check out the rest of the discussion in Part 2.

Can Race Organizers Run Away from Liability if Participants Sign a Waiver?

The topic of liability waivers came up when discussing the wrongful death suit that Tough Mudder now faces in connection with the drowning death of a participant in West Virginia. Tough Mudder events obviously present a unique case (due to the dangerous obstacles), but it seems that almost all races now require participants to sign some sort of release or waiver as a condition of participation (even the ones that just include plain old running and not flaming hoops, blasts of colored dye, or mild electrocution).

A law student in first-year Torts learns rather early during the fall semester that in some states an agreement that contains a provision waiving A’s liability to B for A’s negligence is not enforceable (i.e., it is “void as against public policy”; for a list see here).  On the other hand, there are a lot of states that allow them (or at least allow them in certain situations).  I’ll limit myself to talking about the Old Dominion State.

A good place to start looking for road race liability waivers in Virginia

For well over a century n Virginia, a pre-injury release has been considered void and if you think about it, the rule makes sense.  When it comes to negligence, the law has concerned itself with setting up standards that will encourage people to act with a reasonable degree of care.  Allowing someone to determine ahead of time that they will escape any consequences for failing to exercise care would defeat the purpose of the legal standard.

That was basically the reasoning of the Supreme Court of Virginia in the 1890 case of Johnson’s Adm’x v. Richmond and Danville R.R. Co., 86 Va. 975, 11 S.E. 829 (1890).  There, a worker in a quarry was killed while trying to warn a coworker about an oncoming train.  Although the railroad agreed with the company of quarry workers that train moving through the work site would not exceed six miles per hour, the train in that case was moving at the (at least for 1890). breakneck speed of twenty-five miles per hour.  When Johnson’s estate sued the railroad, they responded by waving around their agreement which contained a clause that released them from liability for Johnson’s death.  The Supreme Court of Virginia wouldn’t have it:

[T]o hold that it was competent for one party to put the other parties to the contract at the mercy of its own misconduct… can never be lawfully done where an enlightened system of jurisprudence prevails. Public policy forbids it, and contracts against public policy are void.

That’s a holding that the Supreme Court of Virginia reaffirmed more than a century later in the case of Hiett v. Lake Barcroft Community Ass’n, 418 SE 2d 894 (Va. 1992).  That case is, perhaps, a little more relevant for runners, because it involved a triathlon.  While  participating in the “Teflon Man Triathlon” in Lake Barcroft, Virginia, Robert D. Hiett, dove into Lake Barcroft, struck something beneath the water, and was rendered a quadriplegic.

Lake Barcroft in Fairfax County

The race entry form contained the following language:

In consideration of this entry being accept[ed] to participate in the Lake Barcroft Teflon Man Triathlon I hereby, for myself, my heirs, and executors waive, release and forever discharge any and all rights and claims for damages which I may have or m[a]y hereafter accrue to me against the organizers and sponsors and their representatives, successors, and assigns, for any and all injuries suffered by me in said event.

If you’ve signed up for many road races, you’ve almost certainly seen something similar to that.

Initially, the trial court held that the waiver acted as a valid release, allowing the defendants to escape liability.  The judge reasoned that “such a release was prohibited as a matter of public policy only when it was included: (1) in a common carrier’s contract of carriage; (2) in the contract of a public utility under a duty to furnish telephone service; or (3) as a condition of employment set forth in an employment contract.”  Because none of those situations was present, the release should stand. The Supreme Court of Virginia disagreed and reversed.  Although some cases regarding waivers of liability for property damage and indemnification had cropped up over the years, the basic holding of Johnson was still good: “provisions for release from liability for personal injury which may be caused by future acts of negligence are prohibited ‘universally.'”

I suppose I can understand the overabundance of caution that prompts race directors to put waivers in their sign-up forms.  In the case of big-time events like the Rock ‘n Roll series, I’m sure that it’s much easier to make one set of forms, than to worry about tailoring each race’s set of forms to the nuances of tort law in that state.  Still, the fact that in some places these sorts of waivers are barely worth the paper they’re written on in is puzzling.

Note, however, that the unenforceability of release and waivers like these doesn’t necessarily mean that race organizers can always be left holding the bag if participants suffer some sort of injury during an event.  If some idiot decides to participate in a marathon in Florida in August and tries to do it without drinking any liquids (despite the fact that race organizers make them available), he shouldn’t expect to recover anything from the race when he inevitably collapses from dehydration, heat exhaustion, etc.  He added risk to the event that the race organizers tried (within reason) to eliminate; race organizers exercised reasonable care, but he did not.

One last interesting tidbit on this topic is pointed out by Jim Moss who writes the blog “Recreation Law.”  In Virginia, there is a specific exception to the general prohibition on waivers of liability: for equine activity sponsors or equine professionals.  The exception is codified at Va. Code Ann. § 3.2-6202. Why does Virginia have an exception to the general rule that applies only to activities involving horses? I have no idea, but this certainly wouldn’t be the only instance in which Virginia law contains a quirk that is completely unique to the Commonwealth.  The section is limited to injuries resulting from “the intrinsic dangers of equine activities,” but unless a sinkhole suddenly appears in the middle of your polo field, it seems that this section is going to be a pretty good cover of organizers of equine events.

More NCAA student athlete news (O’Bannon case)

I’m coming back to this topic for the third time.  See here and here for previous installments.  Although the relevance to running is relatively indirect (due to the effects these cases could have on college runners), it’s an issue I think is worth some attention.

The last we heard from the O’Bannon case, the NCAA had partially lost (and the plaintiffs had partially won) a motion for summary judgment.  The Court dismissed the NCAA’s argument that the “broader social purpose” of supporting women’s and non-revenue sports could not be a legal justification for what otherwise would be a violation of antitrust laws.  Not willing to give up the pre-trial fight, Courthouse News reports that the NCAA has filed a motion to obtain interlocutory review of Judge Wilkens’ partial summary judgment order.

Member of the 1995 NCAA Championship winning UCLA Men’s basketball team and lead plaintiff, Ed O’Bannon (pictured in 2008).

Among the arguments that Judge Wilkens rejected back in April was the argument that broadcasts of full games are commercial speech (an argument made by the athletes).  The Judge did not decide whether clips or video highlights are protected by the First Amendment.  Now, the First Amendment Coalition and a group of broadcast companies (including CBS, Fox, and ABC) have filed amicus briefs in support of the NCAA’s request for interlocutory review.  The plaintiffs’ lawyers predictably (although perhaps not unjustifiably) blast the move by the NCAA as a tactic intended only to delay the early June trial.

According to the First Amendment Center “The uncertainty created by such a scenario – do broadcasters have the right to televise a particular game, or do they not? – will cause the NCAA, networks, and associated businesses to censor their protected speech.”  That seems to me to be a logical prediction given the difficulty that would ensue from potentially having to license publicity rights from each individual athlete who might appear on a broadcast, but the plaintiffs counter that it is more or less beside the point.  Aside from the likelihood of having group rights licenses that will be simpler to negotiate, the plaintiffs stress that “if the NCAA and its members are going to arrange for such exclusive deals, they should compensate players for use of their names, images and likenesses through some contractual group license in advance of dealing with the broadcasters.”   There was an interesting response to that response in claiming that in order to set up the sort of group licensing system the plaintiffs contemplate, the NCAA and members schools would, by setting up such a system, be engaging in yet more anticompetitive behavior.

The NCAA and the amici seem to have come up with some new arguments, but given the way this case has been going so far, I tend to doubt the judge will find them compelling.  In addition, the standard for interlocutory appeals is a rather stringent one.  It’s not enough that the NCAA disagrees with some aspect of the ruling; they must have a truly compelling reason that those issues must be resolved now rather than later.

On a related note, I stumbled across this post on a site that focuses on economic issues in sports.  It’s a list of what various economists have said about whether they think the NCAA operates as a cartel.  Without spoiling it (as if I could), it suffices to say that if this list is representative of the thinking on this issue among economists, the question of the cartelization of the NCAA is not a close one.

Vibram Settles Class Action Lawsuit

Via Runners World:

Vibram USA, the company that makes FiveFingers running shoes, has agreed to settle a lawsuit that alleged the company made false and unsubstantiated claims about the health benefits of its glove-like footwear. According to the court filings, Vibram settled to put the matter to rest and avoid any additional legal expenses. “Vibram expressly denied and continues to deny any wrongdoing alleged in the Actions, and neither admits nor concedes any actual or potential fault, wrongdoing or liability,” read the court brief.

At a cost of $3.75 million, I can’t say that a result like this is surprising.  Mass class actions like this are notorious moneymakers for the plaintiff’s bar (and from the sound of it, this one likely would have been before an MDL panel given the multiple suits involved).  Even if Vibram thought they could win, taking a case like this through the class certification stage, discovery, motions and (heaven forbid) all the way to trial makes almost no sense financially.  This just isn’t the sort of thing on which executives and savvy general counsel are going to bet the company.

In case you’re interested, the complaint itself can be found here (pdf).  It alleged three causes of action: (1) untrue and misleading advertising under Massachusetts law, (2) violation of Florida’s Deceptive and Unfair Trade Practices Act, and (3) unjust enrichment.

An earlier Runners World article pointed out something interesting about the case.  According to Harvard Law professor John C. P. Goldberg:

The plaintiff’s suit is careful to disavow any claim that she was physically injured as a result of using the FiveFingers shoes. Again, she is asking the court to take away from Vibram ill-gotten profits, and to distribute those gains to consumers who bought the shoes.

The reason the claim is framed this way is tied to the efforts of the plaintiffs’ lawyers to get the court to authorize this suit as a class action. The courts have made very clear that they are not going to authorize class actions in personal injury cases. Such cases, the courts say, pose too many “individualized” issues for a class action to provide an efficient and fair resolution. For example, if this were not a suit seeking disgorgement, but instead a suit seeking damages for injuries caused by FiveFingers shoes, the plaintiffs’ lawyers would for each claimant have to offer proof that that claimant actually suffered an injury, and that the injury was caused by the shoes rather than, say, a pre-existing condition in the plaintiff, or the plaintiff’s misuse of the shoes.

The plaintiff’s lawyers are hoping that, by focusing on Vibram’s alleged wrongful gains, rather than on whom Vibram may have injured, they will be able to convince the court to authorize a class action. This is a smart tactic, but it is by no means guaranteed to succeed.

Kudos to the plaintiff’s lawyers are in order, I suppose.  As Prof. Goldberg pointed out, even that slick bit of lawyering wasn’t a slam dunk, but it was apparently just smart enough to squeeze out a settlement.  It would be interesting to know just what portion of the settlement fund gets claimed, but I doubt we’ll see that number reported anywhere.


One More Legal Issue Raised by the Shobukhova Debacle

I remembered one other potential legal issue raised by Shobukhova’s ban, but neglected to mention it in the previous post.  That’s probably just as well since it’s tangential to the doping case and much more speculative.

Paula Radcliffe is an elite distance runner from the United Kingdom and the current women’s world record holder in the marathon.  Shortly after the news about Liliya Shobukhova’s ban became public, she sent out the following tweet:

There are two parts to this tweet.  The second half merely states facts as related in news reports and provides a link.  The first part, however, is where Radcliffe might have gotten herself in trouble (although, the circumstances that would have to occur seem rather unlikely).

Radcliffe blasts Shobukhova as a “drug cheat.”  That very well might be true, but what if Shobukhova’s ban were to be overturned and the drug screening results invalidated?  It seems to me that if that happened, Radcliffe might have bought herself a defamation lawsuit.

Defamation is the area of law that deals with slander and libel (topics that were separate under the common law).  Because Radcliffe’s statement was made via Twitter (“Twibel” if the neologism ever catches on) there are probably a host of jurisdictional issues, but I don’t want to delve into those.  For sake of simplicity I’ll limit the discussion to English defamation law assuming that Radcliffe tweeted from the UK and that most of her Twitter followers who would have read it are also in the UK.

At common law and under the Defamation Act of 1952, defamatory statements that disparage a person in his profession are considered defamation per se:

In an action for slander in respect of words calculated to disparage the plaintiff in any office, profession, calling, trade or business held or carried on by him at the time of the publication, it shall not be necessary to allege or prove special damage, whether or not the words are spoken of the plaintiff in the way of his office, profession, calling, trade or business.

The statement that Shobukhova is “a drug cheat” obviously has to do with her status as a professional runner.  Thus, if the statement is false and no other defense applies, Shobukhova could sue Radcliffe for defamation and would not have to prove that she was damaged by the statement in any specific way.

The defenses available to defamation defendants in England and Wales have recently been clarified by the Defamation Act of 2013.  Truth remains an absolute defense to a defamation action.  However, for purposes of discussion, we’re assuming that the ban will be overturned and the drug test results invalidated.  In that case, truth would not be available as a defense.  What other defenses might apply to Radcliffe’s situation?

“Honest opinion” replaces the common law “fair comment” defense under the new legislation.  That defense is only available, however, when “the statement complained of was a statement of opinion.”  That doesn’t seem to be the case with Radcliffe’s tweet.  One definition of “a cheat” is a person who knowingly violate the rules of a game or competition.  Radcliffe didn’t say “Shobukhova seems like a drug cheat” or that “I think Shobukhova is a drug cheat”; she said that Shobukhova has been exposed “as a drug cheat.”  That seems pretty clearly to be a statement of fact, not an expression of an opinion.

To give my best guess as to how this hypothetical defamation case would turn out, I tend to think that Shobukhova would lose.  The reason is that Radcliffe based her statement on reports that (as nearly as I can tell) came directly from the organization that imposed the ban and reported the drug test results.  In that situation, Radcliffe would likely be able to show that she made her statement in good faith reliance on sources of information a court would likely agree were trustworthy.  The fact that later developments undid Shobukhova’s status as a drug cheat would not negate Radcliffe’s good faith at the time she made her statement.

I’m not sure whether this sort of “good faith” defense is available under English law, but it’s a defense that makes sense.  Especially in cases involving high-profile public figures (well, Shobukhova has or had a high-profile in the elite marathoning community anyway, even if not in the general public) people should be able to speak without fear of their reasonable statements coming back to haunt them.  Radcliffe might have been a little too eager to see Shobukhova get some comeuppance, but that by itself is hardly any reason to haul her into court to answer for her statements.

NCAA Pay for Play (P)

Feit Can Write

If you follow college sports – especially football or men’s basketball – there is one topic that continues to come up:  The notion of somehow compensating the athletes for the revenue they are bringing into their schools, their conferences, the NCAA, and all of the other entities who make a profit off of amateur athletics.

This compensation, be it in the form of stipends, income from the sale of their name/likeness, an actual “salary” from the schools, or anything else, would be in addition to the items student-athletes already receive (namely, a free education, room, board, and a healthy collection of athletic apparel).

I’ll be the first to admit there is a lot of hypocrisy in the current system.  I recently bought my daughter a replica Nebraska jersey with the number 80 on it.  Why number 80?  Let’s be honest:  it’s not because of Billy Haafke, Jamie Williams, Santino Panico…

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