Quote:
Originally Posted by Ahbroody
You need to go read the law on nuisance as well as IIED. This is so far from IIED that I cant even understand how you wrote it. In order for there to even be a possiblility of IIED .... you know what I am not going to turn this into legal 101.
|
Really… my post was in good fun. It was meant simply to raise a couple of theoretical claims one could potentially raise, because, you couldn't possibly fathom a claim(s) could be brought for posting such a sign in ones yard and survive a 1st Amendment defense. I simply provided two possible claims that someone might raise. While clearly noting the IIED claim would be a stretch, its elements typically require a plaintiff to prove the following:
1. Defendant acted intentionally or recklessly; and
2. Defendant’s conduct was extreme and outrageous; and
3. Defendant’s act is the cause of the distress; and
4. Plaintiff suffers severe emotional distress as a result of defendant’s conduct.
Without providing a through analysis of each element, in the hypothetical picture (with additional facts to the actions surrounding the posting of the sign) one could likely provide a colorable argument for each element. As with all IIED claims, proving severe emotional distress (damages) would probably be the downfall of the claim, not an affirmative defense under the 1st Amendment. I'm sure you remember in your 1L Con Law class that one's right to free speech is not always protected (e.g. one can't yell "fire" in a crowded movie theater (unless there really is a fire), "fighting words", etc.).
Quote:
Originally Posted by Ahbroody
You mean a private nuisance. This is not a private nuisance as you have the defense of freedom of speech and it is clearly only asthetic and does not affect the neighbors property in any way. A nuisance is something that interfers with someone use and enjoyement of ones property. A sign on my property would not interfere with your private use and enjoyement of your property.
|
Correct, I was referring to a private nuisance (I didn't realize I needed to be so specific for a post, which was made in jest). Further, as with the IIED claim, I wasn't saying that this claim would be without its faults and would be a slam dunk win, but let's look at the typical elements.
1. Intentional Interference; and
2. Nontrespassory Interference; and
3. Unreasonable Interference; and
4. Substantial Interference; and
5. Interference with Use and Enjoyment of Land
Again, with additional facts and depending on the neighborhood, a colorable argument may be made for each element. There are a lot of creative attorney's out there! As to your specific argument that "it is clearly only astehtic and does not affect the neighbor's property in any way". I disagree; the claim of private nuisance requires interference with the use and enjoyment of the neighbor's property and does not require one to actually trespass on the neighbor's property. One might argue that the neighbor's use and enjoyment of his property was interfered by the fear of robbery or violence, which the sign created. Are both of these claims far reaching? Of course, but, my point was that one could potentially raise them.
Quote:
Originally Posted by Ahbroody
Also why they may file the suit their attorney could file a motion which would claim the suit was without merit. Any suit on any of the legal grounds put forth to me is without merit. I would seek attorney fees in the case. Saying this is a nusiance is funny  |
While the neighbor's lawsuit may or may not lose due to a summary judgment motion, it would cost the defendant time and money to defend the action. The neighbor may only seek an injunction to require the defendant to remove the sign and prevent him from replacing it with some other sign. Before even filing the MSJ, defendant's counsel would probably advise defendant to simply remove the sign. Just because you do not believe any claim arising from the sign is without merit, is in itself without merit. You would not be the trier of fact and in your position as a police officer, I'm sure you've seen first hand how unpredictable judges can be. Thinking that our legal system is so black and white that no one could possibly get past a 1st Amendment defense… now that is funny
P.S. the picture is comical, but I would be offended if I saw it posed in real life.