Bucks Co. on hook for $68M from suit

The Morning Call - - LOCAL NEWS -

Gu­ber­nick re­tired in Fe­bru­ary 2011 and now works as a cor­rec­tions con­sul­tant. Gu­ber­nick did not re­spond to mul­ti­ple email and voice­mail mes­sages.

At­tor­neys rep­re­sent­ing the county in July asked the court to re­con­sider the jury award, a pre­cur­sor to fil­ing an ap­peal with the U.S. Court of Ap­peals for the Third Cir­cuit. Among the re­quests is for a new trial, cit­ing grounds in­clud­ing that the jury ver­dict con­tra­dicted the “great weight of ev­i­dence,” and the jury in­struc­tions on what con­sti­tutes “will­ful­ness” were “er­ro­neous and se­verely prej­u­di­cial.”

Bucks County dis­agreed with the court’s in­ter­pre­ta­tion that it will­fully vi­o­lated the Crim­i­nal His­tory Records In­for­ma­tion Act, known as CHRIA, through “reck­less dis­re­gard or in­dif­fer­ence.” Of­fi­cials have said the on­line tool was cre­ated to give vic­tims a way to ver­ify the where­abouts of de­fen­dants ac­cused of crimes against them.

The 1980 law bars agen­cies that are not law en­force­ment, in­clud­ing county jails, from shar­ing crim­i­nal records with the pub­lic. It im­poses a manda­tory puni­tive penalty of $1,000 to $10,000 for each vi­o­la­tion.

The five-day jury trial in May stemmed from a law­suit filed by Dary­oush Taha, a Sick­lerville, New Jersey, man whose per­sonal in­for­ma­tion and mugshot ap­peared on the county’s inmate lookup tool 11 years af­ter his 1998 ar­rest was ex­punged. The law­suit was given class-ac­tion sta­tus, al­low­ing thou­sands of peo­ple in­car­cer­ated at the jail be­tween 1938 and 2013 to join. Each book­ing record con­sti­tuted an in­di­vid­ual CHRIA vi­o­la­tion, the jury ruled.

The inmate lookup tool still ex­ists, but in 2013, af­ter the law­suit was filed, the county re­moved vir­tu­ally all per­sonal in­for­ma­tion and mugshots. web­site con­tent saw no le­gal is­sues; and that other county inmate lookup tools posted the same or sim­i­lar con­tent.

Yet trial tran­scripts and court doc­u­ments show that Ful­ton, who was pro­moted in 2017, had con­cerns about post­ing FBI and state iden­ti­fi­ca­tion num­bers, unique iden­ti­fiers as­signed to in­di­vid­u­als with a crim­i­nal record.

Ful­ton tes­ti­fied that he knew through his Com­mon­wealth Law En­force­ment As­sis­tance Net­work train­ing that FBI and SID num­bers were con­fi­den­tial and could not be pub­licly re­leased. He also tes­ti­fied that the county’s JNET Ter­mi­nal Agency Co­or­di­na­tor man­ual listed the two num­bers as con­fi­den­tial.

A copy of a 2008 meet­ing min­utes for the county In­for­ma­tion Ser­vices Depart­ment, which Ful­ton at­tended and the first ver­sion of the inmate lookup tool was dis­cussed, noted that the Depart­ment of Cor­rec­tions wanted SID and FBI num­bers re­moved. They were not.

At trial, Ful­ton tes­ti­fied that his con­cerns about post­ing those inmate num­bers were sat­is­fied af­ter he con­sulted with other law en­force­ment sources. But he added that Penn­syl­va­nia State Po­lice told him those inmate num­bers might be pro­tected un­der CHRIA, ac­cord­ing to trial tran­scripts.

A Jan. 24, 2011, email ex­change be­tween Ful­ton and Gu­ber­nick about the inmate lookup tool also sug­gests there were lin­ger­ing ques­tions, ac­cord­ing to a copy of the email ob­tained by the Bucks County Courier-Times.

“The Inmate Look-Up tool pub­lishes the DOB, SID, FBI# and mar­i­tal sta­tus should these be pub­lic records?” Ful­ton wrote.

Fif­teen min­utes later, Gu­ber­nick replied: “Are they pro­tected? I don’t think so just no SS#.”

Two min­utes later, Ful­ton re­sponded, “I re­mem­ber talk­ing about this year’s [sic] ago. I guess I’m too con­ser­va­tive think­ing when I see these num­bers out there”

Gu­ber­nick tes­ti­fied dur­ing the trial that he had taken the same spe­cial­ized train­ing on CHRIA as Ful­ton, in­clud­ing what crim­i­nal his­tory in­for­ma­tion could only be shared with other law en­force­ment agen­cies, tran­scripts show. He tes­ti­fied he had never read the law or the Penn­syl­va­nia At­tor­ney Gen­eral’s Of­fice CHRIA hand­book.

“If [Gu­ber­nick] had read the hand­book and reached an er­ro­neous de­ci­sion, an hon­est mis­take, we wouldn’t be here,” Taha lead at­tor­ney Theodore Schaer said in his clos­ing ar­gu­ment, ac­cord­ing to tran­scripts. “Same thing with Cap­tain Ful­ton. He read the hand­book in 2003 and hadn’t read it again un­til this law­suit, when he ex­pressed his reser­va­tions, when he ex­pressed his con­cerns, when they both did in their email. That’s be­ing in­dif­fer­ent to their obli­ga­tions.”

The con­flict­ing tes­ti­mony is among the rea­sons Bucks County faces an up­hill bat­tle in over­turn­ing the dam­age award, ac­cord­ing to one vet­eran le­gal scholar who spe­cial­izes in class-ac­tion law­suits.

“There is zero chance of the county pre­vail­ing at this stage,” said Ken Ja­cob­sen, a pro­fes­sor spe­cial­iz­ing in class-ac­tion and mass tort lit­i­ga­tion at Tem­ple Univer­sity’s Beasley School of Law who is fa­mil­iar with the Taha class-ac­tion suit.

Ja­cob­sen said it is un­likely the Third Cir­cuit will re­verse the lower court’s in­ter­pre­ta­tion of “will­ful” ac­tions since noth­ing in the law sug­gests a will­ful vi­o­la­tion re­quires the in­tent to cause harm.

“The county is ar­gu­ing a stan­dard that ap­pears nowhere in the statute, and it is dif­fi­cult, if not im­pos­si­ble, to prove ‘sub­jec­tive’ mis­con­duct,” Ja­cob­sen said.

He added the county’s ar­gu­ment that the dam­age award is ex­ces­sive also likely won’t hold up in ap­peal.

“The Third Cir­cuit al­ready has ruled pre­vi­ously in this case that, con­trary to the county’s ar­gu­ment, the Penn­syl­va­nia Leg­is­la­ture saw fit to al­low puni­tive dam­ages un­der CHRIA, even in the ab­sence of any ac­tual in­jury or com­pens­able harm to the named plain­tiff or other class mem­bers, so I think that ar­gu­ment by the county is DOA on ap­peal,” he said.

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