You have to see it to believe it. One of New York’s Finest, while monitoring a monthly demonstration that favors bikes over cars, simply walks over to a cyclist and clobbers him. If I didn’t see it on video, I wouldn’t believe it. Worse yet, the cop then arrests the bicyclist for attempted assault, disorderly conduct and resisting arrest.

First, the video (with a hat tip to Simple Justice and Concurring Opinions):

Perhaps even more incredible than the flat out assault on the rider is that apologists have started to come out of the woodwork because, you know, for some people cops can never do wrong. Here is the New York Post’s pathetic attempt to defend the indefensible:

It looks like one thing led to another Friday, and the unidentified officer seemingly pushed a Critical Mass rider to the ground as the group snaked through Times Square.

Nobody was hurt.

And, since the rider got a traffic ticket and was cited for resisting arrest, there may be more to the story than what’s on one online video.

Seemingly pushed? That reminds me of Groucho Marx: “Who you gonna believe, me or your own eyes?”

And “Nobody was hurt” is now a justification for assault by the police? The rider, now identified as Christopher Long, could have broken his neck with that fall. Why do I think that if the spouse of the unnamed editorial writer was the victim, s/he might be singing a slightly different tune?

And “there may be more to the story?” Good grief. If there was more to the story — if Long was a trouble-maker that the cops were looking for — you wouldn’t see the other cop in the video just standing there. The two would have cornered and held Long.

The Post goes on to sum up: “It’s hard to root against the cops.” Well the masses are not rooting against the cops. That is a miserable straw man argument. This cop (Patrick Pogan, a 22 year-old rookie) should be terminated. This cop should go on trial for assault. This cop should pay the piper. For our safety.

And if the video isn’t enough to convince the Post, maybe they should look at the flat-out lies Pogan made about the incident in the supporting deposition that he gave about the Long arrest, where he claimed that Long deliberately rode into him (click the image below to enlarge):

Obviously, the video shows Long doing exactly the opposite, trying to steer away from Pogan as Pogan started walking into a path that would intercept Long.

And here’s the really interesting part: The cop did this in full view of a big NYC crowd. And yet still believed he could get away with it. And without video, there is a good chance he would. Because what jurors — unless they happen to be defense lawyers in which case they would get booted from the jury panel — would believe a cop would act that way?

With a little bit of luck, the cop will not only be arrested, but a civil suit will be brought. And perhaps, and I know this is fanciful thinking, other cops will actually start to get rid of bad apples as they tarnish the names of the good ones.

Elsewhere:

• Video shows NYPD cop assaulting cyclist (NY Daily News)
• Update on Bull Cop Who Shoved Man Off Bike (Gawker)
• NYPD Bruise (Smoking Gun)

And regarding a new police beating video that has surfaced:

• NYPD Police Brutality (Reluctant Habits)
• NYC Cop David London Placed on Desk Duty After Clubbing Handcuffed Army Vet Walter Harvin (Black Political Thought)

Updated: Scott Greenfield has a piece on how this case would have likely wound its way throught the criminal courts if there were no videotape: Follow-Up on the “Big Shove”

An issue has arisen in recent years about the taxability of personal injury settlements when a confidentiality agreement is reached. Generally, such settlements are not taxable pursuant to IRS section 104(a)(2). But the issue reared its head due to a settlement involving Dennis Rodman back in Amos v. Commissioner of Internal Revenue when Rodman kicked Amos, a camerman, in the groin during a Chicago Bulls game. (Amos-v-Commissioner.pdf)

Prior to suit they reached a $200,000 settlement. But part of that settlement included a confidentiality clause. So the IRS brought an action claiming that part of the settlement was taxable. And the Tax Court agreed, ruling in 2003 that while the proceeds for the personal injury portion were not taxable, that any part of the money that was in exchange for the confidentiality agreement would be. The court wrote that “if a settlement agreement lacks express language stating what the amount paid pursuant to that agreement was to settle, the intent of the payor is critical to that determination.” In the end, the court ruled that Amos was to be taxed on $80,000 of the settlement.

And so that opened up any personal injury settlement that includes a confidentiality clause to potential scrutiny. So what’s a lawyer to do? (Question courtesy of Drug and Device Blog.)

While others have suggested placing a number, perhaps $1, in the agreement on the value of the confidentiality agreement — part of the “express agreement stating what the amount paid pursuant to that agreement was to settle” — I think an issue still lurks. It seems quite possible — and I say this without much in the way of knowledge of tax law — that the IRS would want to go to the merits and look at the actual injuries and compare that to the amount received if they believed a great disparity existed between injuries and recovery. It seems that a $5,000 injury that resulted in a $100,000 settlement, for example, would raise eyebrows regardless of what the legal papers claim.

But the problem really exists if it is simply the defendant that seeks the agreement, as has traditionally been the case. The defendant doesn’t want to be seen as a mark to other potential litigants.

The internet age and issues of privacy and identity theft, however, shift that dynamic. Would a plaintiff receiving a large award really want the information public? Likely not. In fact, at my firm’s web site where I discuss case resolutions I have stripped out the names of my clients for just this reason. Those recoveries are no one’s business but the parties themselves.

And so the solution for an attorney to explore with the settling client — I’m not a tax lawyer and this is not tax advice, disclaimer, disclaimer, yada, yada, yada — is actually somewhat simple: Both sides are seeking that confidentiality agreement. The consideration for the confidentiality agreement is the mutual promise for confidentiality. Plaintiff, simply put, doesn’t wish to alert potential thieves and hustlers that such funds exist. This is a real issue.

(Addendum: The preceding “simple” analysis may well be wrong, as the IRS might still say it has value and tax it.)

Along these same lines, an attorney should be wary of signing any agreement that says the funds are being paid to dispose of a claim was dubious, frivolous, meritless or any such other claptrap. Incredibly, I have seen releases written that way. (“But that’s our standard release, everyone signs them!”) Signing such a document could be seen as an admission that the amount paid was for something other than personal injury, and therefore subject the client to taxation.

(Second Addendum): The safest course of action may be to take back a Hold Harmless agreement from the defendant. That is to say, if they wish to have the confidentiality agreement, then they must also agree to defend and indemnify the plaintiff if the IRS comes calling, and claiming that there was value in the confidentiality agreement.

And yes, I did have fun doing an image search for Dennis Rodman.

See also: More On Taxation of Confidentiality Agreements (Drug and Device)

The ad takes up a full back page in today’s New York Law Journal. And it is a thank you from the New York State Trial Lawyers Association to the almost 150 members of the organization that traveled to Albany to lobby the legislature last week to help preserve the civil justice system and increase judicial salaries. NYSTLA, for those that don’t know, is the preeminent trial lawyers group in New York.

So the questions are:

• If you have an attorney handling a personal injury matter, is the name of your lawyer on the list? Or at least someone from his/her firm?
• And if not, did s/he attend last year or the year before?
• Is s/he actively working in some way to preserve the civil justice system?
• And if they have never done anything in this regard, why not?

Here is the ad: NYSTLA-Ad.pdf

A big thank you to the folks at NYSTLA for their organizational skills in getting us in to meetings with our legislators. It was a job well done.

Raymond Marquez smoked for 30 years and then quit. Then, after being locked up at Rikers Island for 29 months awaiting trial, he got bladder cancer. He blamed the City of New York for the cancer, since the city’s Department of Corrections runs the jail and permitted indoor smoking while he was there. Smoking is the leading cause of bladder cancer.

According to Marquez, smoking indoors was permitted between 1998-2001 when he was awaiting trial, and that the secondhand smoke traveled through the ventilation system. The policy changed in 2003 to ban indoor smoking.

While Marquez said he had smoked from age 15 to 45, he also said that he had stopped for 23 years. He also claimed, incredibly, that he never inhaled. The medical underpinning of the suit was his claim that after 20 years of smoking cessation the risk of bladder cancer is as low as that of a non-smoker. The 78 year old plaintiff said, therefore, that the cancer must have come from the jail house smoke.

A New York jury that returned a verdict Friday didn’t think much of the claim from the plaintiff, who used to be “the foremost kingpin of the city’s illegal numbers rackets” and was known as Spanish Raymond. He had previously pleaded guilty to gambling charges, but was acquitted of the new charges. (The acquittal was not before the jury.) And after a two-week trial on the smoking case, and just over an hour of deliberation, the jury tossed it.

When I first heard about the litigation, it sounded like a dog, and I don’t know any reputable personal injury firm that would have taken it. And as it turns out, the suit was brought by the plaintiff’s son, who happens to be a local attorney. (I once went down that road myself, representing my father, with thankfully much different results.)

It seems now that the city wants to use this suit for its propaganda benefits, claiming in a press release (below) that this is an example of “ridiculous lawsuits.” Using anecdotes is a fairly typical method of trying to win tort “reform” arguments, but it is also pretty useless in this setting. Pulling out the bad cases for display to the public tells you nothing about the good ones that the city remains mum on.

(Full Disclosure: Defense counsel Scot Gleason is a good friend of mine who has also worked for me in the past on an “of counsel” basis.)

See also:

• NYC jury rejects former inmate’s secondhand smoke lawsuit (Newsday)
• Ex-Inmate Loses Lawsuit Over Secondhand Smoke (New York Times)
• New York City Law Department Press Release: RaymondMarquez.DOC
• Harlem numbers king sues city for $15M (HarlemWorld, 3/11/08)
• Harlem numbers king taking on city with $15M secondhand smoke suit (Daily News, 3/10/08)