Bank breaks into nurse's house, takes her stuff, but won't pay her back

Ohio homeowner Katie Barnett. Photo from ABC News.

I first saw the story on Popehat, "Want To Burglarize A House With Impunity, Then Nickle-And-Dime The Restitution? It Helps To Be A Bank."

Katie Barnett, a nurse in McArthur, Ohio, was away from home for a couple of weeks. While she was away, the First National Bank of Wellston, a local institution which had foreclosed on a house across the street, went to take possession of same. "Guided" by GPS (and neglecting to actually look at the house numbers on the mailboxes outside), the bank's "representatives" broke into Barnett's house, took most of her stuff, and changed the locks. When she got home, she had to gain access through a window. She called the police; the police theorized that perhaps squatters had got in.

But, no, the bank has admitted that it was the culprit. According to the ABC News account, the bank's involvement was only revealed when someone from the bank also called the police. Persisting in their inexplicable error, bank personnel complained that someone was living in the bank's house.^*

The story has made national news because of the way the bank responded to Barnett's request to be reimbursed for the value of the stuff taken -- and discarded by the bank. Barnett told ABC that the bank took two dressers and clothing for her five children, as well as items from outside their home, including pool cleaning supplies and patio furniture. She has estimated her loss at $18,000, but the bank says there are inconsistencies between "the written list of items that [Barnett] provided to us and the value she assigned to those items" when compared to "the list and descriptions of items removed that was prepared by the employees who did the work." Barnett says the bank president told her that it would not "pay retail" for her lost stuff. She's got a lawyer, and a suit is probably going to have to be filed before the bank makes good.

If it ever does.

Barnett's suit would be governed by Ohio law. But the story got me wondering what remedies might be available to an Illinois resident in Barnett's unhappy situation.

It would appear that our hypothetical Illinois resident would have an action for conversion. "To state a cause of action for conversion, a plaintiff must prove that: (1) she has a right to the property at issue; (2) she has an absolute and unconditional right to the immediate possession of that property; (3) the defendant wrongfully and without authorization assumed control, dominion, or ownership over the property; and (4) she made a demand for the return of the property." Weisberger v. Weisberger, 2011 IL App (1st) 101557, ¶45. "Generally, the measure of damages for conversion is the market value of the property at the time of conversion." Long v. Arthur J. Rubloff & Co., 27 Ill.App.3d 1013, 1025, 327 N.E.2d 346 (1st Dist. 1975). Thus, if Barnett's case arose in Illinois, the Ohio bank president's Illinois counterpart would have a basis upon which to refuse to pay retail.

But the hypothetical Illinois bank would face a petty serious problem. Punitive damages are available for the tort of conversion. Cirrincione v. Johnson, 184 Ill.2d 109, 703 N.E.2d 67 (1998). In Cirrincione, punitive damages were affirmed in favor of a doctor against a lawyer on account of the lawyer's failure to honor his physician's lien when disbursing the proceeds of the settlement of a personal injury case. "Punitive damages are awarded 'when torts are committed with fraud, actual malice, * * * or when the defendant acts willfully, or with such gross negligence as to indicate a wanton disregard of the rights of others.'" Cirrincione, 184 Ill.2d 115-115, quoting Kelsay v. Motorola, Inc., 74 Ill.2d 172, 186, 384 N.E.2d 353 (1978). The bank's conduct here might well be thought of as more than sufficiently grossly negligent to qualify. If the law is similar in Ohio, the bank might do well to consider paying the $18,000 requested by Ms. Barnett.

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^* The bank says that it figured out they had emptied the wrong house sooner than that. According to the bank's statement, "Unfortunately, we did not discover our error until the clean-up process was nearly complete." Then did the bank actually call the police to report Barnett as a trespasser in her own house or not? If it knew at an early date that it had made this terrible mistake, wouldn't the bank have notified the authorities -- or the homeowner -- sooner? You'd think that the local TV station would have verified these facts by checking with the local constabulary... but who knows?

Text of 50 U.S.C. §1861

Related to this post on Page One.

§ 1861. Access to certain business records for foreign intelligence and international terrorism investigations

(a) Application for order; conduct of investigation generally.

(1) Subject to paragraph (3), the Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.

(2) An investigation conducted under this section shall--

(A) be conducted under guidelines approved by the Attorney General under Executive Order 12333 [50 USCS § 401 note] (or a successor order); and

(B) not be conducted of a United States person solely upon the basis of activities protected by the first amendment to the Constitution of the United States.

(3) In the case of an application for an order requiring the production of library circulation records, library patron lists, book sales records, book customer lists, firearms sales records, tax return records, educational records, or medical records containing information that would identify a person, the Director of the Federal Bureau of Investigation may delegate the authority to make such application to either the Deputy Director of the Federal Bureau of Investigation or the Executive Assistant Director for National Security (or any successor position). The Deputy Director or the Executive Assistant Director may not further delegate such authority.

(b) Recipient and contents of application. Each application under this section--

(1) shall be made to--

(A) a judge of the court established by section 103(a) [50 USCS § 1803(a)]; or

(B) a United States Magistrate Judge under chapter 43 of title 28, United States Code [28 USCS §§ 631 et seq.], who is publicly designated by the Chief Justice of the United States to have the power to hear applications and grant orders for the production of tangible things under this section on behalf of a judge of that court; and

(2) shall include--

(A) a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, such things being presumptively relevant to an authorized investigation if the applicant shows in the statement of the facts that they pertain to--

(i) a foreign power or an agent of a foreign power;
(ii) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or
(iii) an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation; and

(B) an enumeration of the minimization procedures adopted by the Attorney General under subsection (g) that are applicable to the retention and dissemination by the Federal Bureau of Investigation of any tangible things to be made available to the Federal Bureau of Investigation based on the order requested in such application.

(c) Ex parte judicial order of approval.

(1) Upon an application made pursuant to this section, if the judge finds that the application meets the requirements of subsections (a) and (b), the judge shall enter an ex parte order as requested, or as modified, approving the release of tangible things. Such order shall direct that minimization procedures adopted pursuant to subsection (g) be followed.

(2) An order under this subsection--

(A) shall describe the tangible things that are ordered to be produced with sufficient particularity to permit them to be fairly identified;
(B) shall include the date on which the tangible things must be provided, which shall allow a reasonable period of time within which the tangible things can be assembled and made available;
(C) shall provide clear and conspicuous notice of the principles and procedures described in subsection (d);
(D) may only require the production of a tangible thing if such thing can be obtained with a subpoena duces tecum issued by a court of the United States in aid of a grand jury investigation or with any other order issued by a court of the United States directing the production of records or tangible things; and
(E) shall not disclose that such order is issued for purposes of an investigation described in subsection (a).

(d) Nondisclosure.

(1) No person shall disclose to any other person that the Federal Bureau of Investigation has sought or obtained tangible things pursuant to an order under this section, other than to--

(A) those persons to whom disclosure is necessary to comply with such order;
(B) an attorney to obtain legal advice or assistance with respect to the production of things in response to the order; or
(C) other persons as permitted by the Director of the Federal Bureau of Investigation or the designee of the Director.

(2)

(A) A person to whom disclosure is made pursuant to paragraph (1) shall be subject to the nondisclosure requirements applicable to a person to whom an order is directed under this section in the same manner as such person.

(B) Any person who discloses to a person described in subparagraph (A), (B), or (C) of paragraph (1) that the Federal Bureau of Investigation has sought or obtained tangible things pursuant to an order under this section shall notify such person of the nondisclosure requirements of this subsection.

(C) At the request of the Director of the Federal Bureau of Investigation or the designee of the Director, any person making or intending to make a disclosure under subparagraph (A) or (C) of paragraph (1) shall identify to the Director or such designee the person to whom such disclosure will be made or to whom such disclosure was made prior to the request.

(e) Liability for good faith disclosure; waiver. A person who, in good faith, produces tangible things under an order pursuant to this section shall not be liable to any other person for such production. Such production shall not be deemed to constitute a waiver of any privilege in any other proceeding or context.

(f) Judicial review of FISA orders.

(1) In this subsection--

(A) the term "production order" means an order to produce any tangible thing under this section; and
(B) the term "nondisclosure order" means an order imposed under subsection (d).

(2)

(A)

(i) A person receiving a production order may challenge the legality of that order by filing a petition with the pool established by section 103(e)(1) [50 USCS § 1803(e)(1)]. Not less than 1 year after the date of the issuance of the production order, the recipient of a production order may challenge the nondisclosure order imposed in connection with such production order by filing a petition to modify or set aside such nondisclosure order, consistent with the requirements of subparagraph (C), with the pool established by section 103(e)(1) [50 USCS § 1803(e)(1)].

(ii) The presiding judge shall immediately assign a petition under clause (i) to 1 of the judges serving in the pool established by section 103(e)(1) [50 USCS § 1803(e)(1)]. Not later than 72 hours after the assignment of such petition, the assigned judge shall conduct an initial review of the petition. If the assigned judge determines that the petition is frivolous, the assigned judge shall immediately deny the petition and affirm the production order or nondisclosure order. If the assigned judge determines the petition is not frivolous, the assigned judge shall promptly consider the petition in accordance with the procedures established under section 103(e)(2) [50 USCS § 1803(e)(2)].

(iii) The assigned judge shall promptly provide a written statement for the record of the reasons for any determination under this subsection. Upon the request of the Government, any order setting aside a nondisclosure order shall be stayed pending review pursuant to paragraph (3).

(B) A judge considering a petition to modify or set aside a production order may grant such petition only if the judge finds that such order does not meet the requirements of this section or is otherwise unlawful. If the judge does not modify or set aside the production order, the judge shall immediately affirm such order, and order the recipient to comply therewith.

(C)

(i) A judge considering a petition to modify or set aside a nondisclosure order may grant such petition only if the judge finds that there is no reason to believe that disclosure may endanger the national security of the United States, interfere with a criminal, counterterrorism, or counterintelligence investigation, interfere with diplomatic relations, or endanger the life or physical safety of any person.

(ii) If, upon filing of such a petition, the Attorney General, Deputy Attorney General, an Assistant Attorney General, or the Director of the Federal Bureau of Investigation certifies that disclosure may endanger the national security of the United States or interfere with diplomatic relations, such certification shall be treated as conclusive, unless the judge finds that the certification was made in bad faith.

(iii) If the judge denies a petition to modify or set aside a nondisclosure order, the recipient of such order shall be precluded for a period of 1 year from filing another such petition with respect to such nondisclosure order.

(D) Any production or nondisclosure order not explicitly modified or set aside consistent with this subsection shall remain in full effect.

(3) A petition for review of a decision under paragraph (2) to affirm, modify, or set aside an order by the Government or any person receiving such order shall be made to the court of review established under section 103(b) [50 USCS § 1803(b)], which shall have jurisdiction to consider such petitions. The court of review shall provide for the record a written statement of the reasons for its decision and, on petition by the Government or any person receiving such order for writ of certiorari, the record shall be transmitted under seal to the Supreme Court of the United States, which shall have jurisdiction to review such decision.

(4) Judicial proceedings under this subsection shall be concluded as expeditiously as possible. The record of proceedings, including petitions filed, orders granted, and statements of reasons for decision, shall be maintained under security measures established by the Chief Justice of the United States, in consultation with the Attorney General and the Director of National Intelligence.

(5) All petitions under this subsection shall be filed under seal. In any proceedings under this subsection, the court shall, upon request of the Government, review ex parte and in camera any Government submission, or portions thereof, which may include classified information.

(g) Minimization procedures.

(1) In general. Not later than 180 days after the date of the enactment of the USA PATRIOT Improvement and Reauthorization Act of 2005 [enacted March 9, 2006], the Attorney General shall adopt specific minimization procedures governing the retention and dissemination by the Federal Bureau of Investigation of any tangible things, or information therein, received by the Federal Bureau of Investigation in response to an order under this title [50 USCS §§ 1861 et seq.].

(2) Defined. In this section, the term "minimization procedures" means--

(A) specific procedures that are reasonably designed in light of the purpose and technique of an order for the production of tangible things, to minimize the retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;
(B) procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in section 101(e)(1) [50 USCS § 1801(e)(1)], shall not be disseminated in a manner that identifies any United States person, without such person's consent, unless such person's identity is necessary to understand foreign intelligence information or assess its importance; and
(C) notwithstanding subparagraphs (A) and (B), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes.

(h) Use of information. Information acquired from tangible things received by the Federal Bureau of Investigation in response to an order under this title [50 USCS §§ 1861 et seq.] concerning any United States person may be used and disclosed by Federal officers and employees without the consent of the United States person only in accordance with the minimization procedures adopted pursuant to subsection (g). No otherwise privileged information acquired from tangible things received by the Federal Bureau of Investigation in accordance with the provisions of this title [50 USCS §§ 1861 et seq.] shall lose its privileged character. No information acquired from tangible things received by the Federal Bureau of Investigation in response to an order under this title [50 USCS §§ 1861 et seq.] may be used or disclosed by Federal officers or employees except for lawful purposes.

Thinking about a musical and a well-traveled email on this Fourth of July

We just finished watching 1776 in our house -- a 4th of July tradition for us.

It's a musical, not a monograph, and there are some liberties taken in the story of how the Continental Congress adopted the Declaration of Independence -- no, John Adams did not really arrange for Thomas Jefferson's wife to visit Philadelphia so that Jefferson would stop mooning and get busy writing the Declaration -- but there's a lot that's accurately portrayed as well.

And there's stuff that should be accurate (even if it's not): In the movie, after Congress adopts the Declaration of Independence, further requiring that no man be permitted to sit in Congress without affixing his name to the document, John Dickinson withdraws, saying he could not in good conscience sign the Declaration because he would never give up hope for the eventual reconciliation between America and Britain. However, he said, because, in his own way, he loves America no less than John Adams (with whom he's been sparring throughout the picture), he would enlist in the Army and fight to defend his country, even though he believed the cause to be hopeless. As he walks from the room, John Adams leaps to his feet calls out, "Gentlemen of the Congress, I say ye, John Dickinson." He bowed to his recent antagonist as the other members rose, pounding their tables in applause and assent.

The scene is a magnificent illustration of how political opponents can (and should be) respectful of each other.

Of course, as the linked Wikipedia biography shows, the musical invents most of the scene. Dickinson either stayed away from the meetings at which the decisive votes were taken or abstained. But he did withdraw from Congress after the Declaration was adopted and enlisted in the Pennsylvania militia. And when Dickinson died, in 1808, Thomas Jefferson, by then President of the United States, wrote, "A more estimable man, or truer patriot, could not have left us. Among the first of the advocates for the rights of his country when assailed by Great Britain, he continued to the last the orthodox advocate of the true principles of our new government and his name will be consecrated in history as one of the great worthies of the revolution."

Every year, when I watch 1776, I am reminded of the email that just about everyone gets around this time of year, about the 'price paid' by the 56 Signers. I've liked to an Internet version of that well-traveled email; it's a sobering read.

I've often wondered just how accurate the email was; this year, I resolved to find out.

It turns out that, despite the name of the site I linked to (whatreallyhappened.com), the Signers' fates email is a mixture of true and false information. So says Internet debunker Snopes.com. Life was not all beer and skittles for the Signers of the Declaration of Independence, but the price they paid was not quite so high as the email claims.

Unfortunately, although understandably, the Snopes.com article focuses more on the inaccuracies in the circular and not on the accurate parts. But USHistory.org, a website maintained by the Independence Hall Association in Philadelphia, provides short biographies of all 56 Signers, indexed on a single page of the website. The truth may not be quite as dramatic as the 'price paid' email, but the truth is more than sufficiently inspirational.

Have a Glorious Fourth.