Gfactor - I agree with your reading of Tennessee - the only thing I can think that they may be doing is trying for the entire $990,000 for their statewide crime victim’s fund, without triggering some of the constitutional issues in the other decisions. While we may or may not have a difference as to whether it is the “right” thing to do, I thank you for the excellent exposition of the facts.
Just wanted to add my voice to the general chorus of “Well done!”
Excellent report.
My example of flipping burgers was not intended to specifically point out a minimum wage job; my point was that it’s perfectly legitimate employment, and completely unrelated to the crime. I was calling the law “draconian” because in the snippet first posted, it seemed like the state could confiscate a person’s entire lifetime earnings, regardless even of what the crime was. Given the further information on the state law, that it only applies for three years and can be returned to the defendant, and given the federal limits on garnishment, it is perhaps still unjust, but not draconian.
On the other hand, the three-year limit seems like it would defeat the purpose, as far as book deals and the like. What’s to stop the criminal from selling a book three years and a day afterward? If the crime is a particularly notorious one, there’ll probably still be enough public interest to buy it then.
You’re right. Three years is sort of arbitrary. OTOH
The three year statute does not begin to run until:
And, everybody else who suffers an injury in Tennessee has only one year from the time they were injured to file suit. http://www.edgarsnyder.com/resources/statute-limitations/tennessee.html; http://198.187.128.12/tennessee/lpext.dll/Infobase/12f38/12fe9/13006/13017?f=templates&fn=document-frame.htm&2.0#JD_28-3-104
Prejudgment attachment (which is what we are really talking about) is also a lot harder to get for a plaintiff who is not a crime victim:
Ok. Here is are some fun hypotheticals to further complicate things.
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A shoots B. B is seriously injured and suffers $800,000 in damages. A is sentenced to 5 years in prison. When A is released from prison, B goes to work at McDonald’s. A works full-time and within a year is earning $6.50 per hour. The district attorney general © the district where A was convicted knows who A is (its a small town) and also gets his morning coffee at that McDonald’s every morning (being careful to put it into a refrigerated bag before drinking or spilling it). He sees A working there and has a brief discussion about A’s job with him within the first week of A’s employment there. C does not tell the attorney general about A’s job. The attoorney genera, unaware of A’s income, does not seize A’s income and does not establish a trust fund. Ten years later (fifteen years after he shot B), A finally hits it big; he gets a movie produced and makes millions. B sues. What result?
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A shoots B. B’s injuries are the same as in the last question. A is shot by the police and dies before he can be charged with a crime. A’s family possesses A’s manuscripts, but waits three years before submitting the manuscripts to a publisher. A publisher ultimately pays A’s heirs $10 Million dollars for the manuscripts. When the deal is announced, B’s family wants to sue A’s heirs for the proceeds. Can they?
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A is speeding home from the video store, looking at the box of the adult video that he just rented. He runs over a small child in front of the child’s family. It happens that the child had wandered away from a family reunion. The entire family (28 people) sees the accident and is traumatized. Two elderly relatives have heart attacks. The police issue A several tickets, but do not charge him with a crime (most tickets are civil infractions in Tennessee). A was poor (judgment proof even) before the accident; worse yet, A is so traumatized by the accident that he is unable to work, and becomes a homeless alcoholic for a few years.
Three years pass. The child’s family does not sue for various reasons (mostly religious). And then . . . A’s rich uncle dies, leaving him millions. The child’s family has a change of heart; now they want to sue. Can they?
Here are the statutes:
Remember the ordinary statute of limitations for personal injuries in Tennessee is one year.
Please excuse the multiple errors in my last post. :smack:
Trying to work thru the scenarios - and not being an attorney (thank goodness) - I think the answers to them are
1 - it is beyond the 3 year time limit - no suit,
2 - insufficient information - how long after the original crime was A killed by the cops? Five minutes? 5 years? Also - what where the manuscripts about? Did they have anything to do with B? Where they written before the crime? Or between the time A killed B and was subsequently killed by the police?
3 - same answer as #1
I’m going to hide my answers, which are by no means definitive, so that others can play along at home. These are my opinions based on my reading of the statutes. If you happen to find yourself injured in situations similar to any of these, talk to a lawyer at once. Do not rely on this as legal advice. I’m not your lawyer and you are not my client.
- It looks like three years has elapsed, but when does the three years start running? § 29-13-404(2) says the three years does not start running until an escrow has been established by the attorney general. Here that never happened. The deputy attorney general may be guilty of a misdemeanor for failing to report the defendant’s income, but because no escrow was established, a court might read the statute literally. That means that B might be able to sue A fifteen years later.
Could A then sue C for failing to report his McDonald’s income? Tennessee recognizes that violation of a penal statute can constitute negligence per se. http://72.14.207.104/search?q=cache:tMnFvivVex4J:www.tsc.state.tn.us/OPINIONS/tca/033/RainsBW.opn+negligence+per+se+tennessee+penal&hl=en&gl=us&ct=clnk&cd=4&client=firefox-a (HTML version of .opn format document). But there are two questions that need to be answered first. “The two threshold questions in every negligence per se case are whether the plaintiff belongs to the class of persons the statute was designed to protect and whether the plaintiff’s injury is of the type that the statute was designed to prevent.”* Id. *. Here neither of these requirements appears to be met. Therefore, it is unlikely that A can recover from C.
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The statute does not apply. " A is shot by the police and dies before he can be charged with a crime." § 29-13-402 defines a defendant as someone who “A) Is convicted of a crime in this state; or (B) Is judged not guilty by reason of insanity; or © Pleads nolo contendere to a specific criminal charge; or (D) Has been formally charged with a crime but is still awaiting trial.” Here, the defendant was not convicted, did not plead, was not found not guilty by reason of insanity, and was not charged." That exhausts the categories.
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This is similar to number 2, actually. The defendant does not fit into any of these categories. So even though (like in number 1) no escrow was started, the defendant does not fit the statutory definition, which denies the plaintiffs the benefit of the statute. If any minors witnessed the accident, their claims might still survive. They have one year from their 18th birthdays to sue. http://198.187.128.12/tennessee/lpext.dll/Infobase/12f38/12f3e/12f69?fn=document-frame.htm&f=templates
Interestingly, the statute would not cover cases like OJ and Robert Blake, where the defendant was acquitted but later found civilly liable. Plaintiffs in those cases would have to collect their judgments like ordinary creditors.
Gfactor
I accept your interpretations on my responses to #1 and #3. I appeal your decision on #2. I can’t give specifics without disclosing parts of the spoiler… but if you read my questions in Post #27 of this thread, you will see that sufficient new evidence could easily be introduced into the timing of the police shooting to overturn your decision.
You are assuming that the police shot him immediately. But that was not stated in the original problem. My investigation revealed that he was shot and killed by the police immediately AFTER being convicted. During the trial, he evidently referred to the Straight Dope failing to cure ignorance, so the cops naturally shot him at the first opportunity. Postscript - the officers were found guilty of justifiable homicide and released.
Sorry… I needed to add something:
“A is shot by the police and dies before he can be charged with a crime.” While apparently referring to the original crime - the subsequent investigation revealed that he was being considered for a NEW crime. Many cases have been overturned on details like this. :rolleyes:
I checked the statute’s annotations at the law library today. There are no cases interpreting the statute.
Gringo_Miami let me clarify: In hypothetical number 2, A was never convicted of any crime.
This does raise yet another wrinkle though. Take another look at the definitions. The definitions of “crime,” “defendant,” and “victim” all refer to “a” crime. So just going by the definitions, you might think that a person injured by a different criminal (or a different crime committed by the same defendant) could take advantage of the statute.
But section 29-13-403(b) makes clear “[t]he moneys shall be payable to the victim or victims of the crime committed by the defendant.” That means, IMO, that the plaintiff’s injuries must be traceable to the crime for which the defendant was convicted (or charged, or found not guilty by reason of insanity).