[Occupymendocino] {MTA CA Affiliates} More Outrageousness

ELLEN ROSSER ellen.rosser at gmail.com
Sun Mar 31 18:08:32 PDT 2013 

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Appeals court: Prosecutor can't sue BofAJudge upholds ruling, orders her to
pay fees

By Bob Egelko <http://www.sfchronicle.com/author/bob-egelko>

March 29, 2013

A San Mateo County prosecutor who was arrested and chained to a jailhouse
wall for allegedly trying to pass a bad check at a Bank of America branch
in San Francisco - a charge that turned out to be groundless - not only
cannot sue the bank, she must pay $50,000 to the financial giant in
attorneys' fees, a federal appeals court says.

Sharon Henry, who was locked up for two hours, denied her diabetes
medication and barred from making a phone call until the bank realized its
mistake, sued the bank and San Francisco police for negligence and false
arrest.

But a federal judge found that Henry's suit was baseless and an attempt to
stifle the bank's freedom of speech, and ordered her to pay BofA's legal
costs, a ruling upheld by the Ninth U.S. Circuit Court of Appeals in San
Francisco.

An attorney for Henry called Wednesday's appeals court decision "a travesty
of justice" and said his client, a deputy district attorney in San Mateo
County, was considering an appeal.
Partner's check

The case dates from March 2008, when Henry went to BofA's Noe Valley branch
on 24th Street to deposit a $27,500 check from her domestic partner in her
own account and withdraw $1,000. The partner, Kathleen Wilkinson, had a
credit card account at the bank.

According to court testimony, the bank manager, Nancy Mendoza, verified
that the amount was within Wilkinson's credit card limit, then checked a
database that included bank account-holders but not those with only credit
card accounts.

She found a listing for a Kathleen Wilkinson with a notation that she was
studying abroad - but did not realize that the listing referred to a
different Kathleen Wilkinson, not Henry's partner.

Mendoza phoned the number on the listed account, was told by Wilkinson's
mother that the family didn't know Henry, then called the police. Two
officers arrived at the bank, arrested Henry and prevented her from using
her cell phone to call her partner.
No call to partner

The officers later testified that they had been trained in such cases to
call the person whose number was on the check - Henry's partner - but had
not done so in this case.

Henry was handcuffed, driven to the police station, shackled and cut off
from her phone and her medication, according to court records.

She was freed two hours later after her partner went to the bank looking
for her and spoke to the manager.

Henry's suit accused the bank of negligence that led to her false arrest.
But in a July 2011 ruling, U.S. District Judge Richard Seeborg said
California law shields the bank from liability for any statements its
employees make while investigating a possible crime.
Arrest justified

Seeborg also said that in hindsight, police had failed to resolve the
investigation as quickly as they might have. Nevertheless, the judge said,
the officers had probable cause to arrest Henry in light of what the bank
manager had told them.

The judge also rejected Henry's claim that she had been arrested because
she is African American.

Not only was Henry's suit groundless, Seeborg said, but in going to court
to challenge BofA's report to police, she was engaging in unjustified
interference with the bank's legally protected freedom of speech. On that
basis, the judge ordered her to pay the bank's $50,000 legal costs.

The appeals court upheld Seeborg's decision in a 3-0 ruling. It said that
although "Henry's claims arise from a perfect storm of coincidences and a
case of mistaken identity, and ... her actions in this matter were
blameless," neither the bank nor the officers violated her rights.

It also upheld the order that she pay the bank's legal fees, under a state
law penalizing baseless suits that chill free speech.

Bank of America declined to comment.

Fuentes, Henry's lawyer, said the ruling was an indication that "banks are
too big to be sued."

Bob Egelko is a San Francisco Chronicle staff writer. E-mail:
begelko at sfchronicle.com


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On Sun, Mar 31, 2013 at 6:12 PM, Shoshana Wechsler <swechs at sonic.net> wrote:

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