2009-10-18 20:14:20 - With so much focus on what criminal charges might be filed if the "balloon boy" event were simply a hoax, the media has virtually ignored the more important issue of the greater potential civil law suits have for forcing the family to pay some of the enormous costs expended trying to help the young boy, as well as deterring other families which might otherwise see a minor criminal conviction as a very small price to pay for fame, TV appearances, etc., says law professor John Banzhaf.

Criminal liability is often hard to impose because the wrongful actions must be very clearly spelled out in an existing criminal statute, financial penalties for filing false reports are ordinarily very low so as not to deter legitimate but mistaken reporting to authorities, and the burden of persuading a unanimous jury beyond a reasonable doubt as to all of the elements of a crime -- especially in unusual situations -- can prove very difficult, says Banzhaf, a well known professor of public interest law.

In sharp contrast, juries often impose civil liability in situations which previously may not have been seen as wrongful. A wrongdoer is civilly liable for financial harm which might have been foreseen at the time, and sometimes

even for unforeseeable harm, and a plaintiff need convince a jury only by a preponderance of evidence.

Also, while a conviction -- even for a minor misdemeanor, much less a class 4 felony -- would strengthen a legal action for civil liability, it is not required. O.J. Simpson, Bernhard Goetz, and Claus von Bulow, among many others, were found not guilty of crimes, but nevertheless faced huge civil liability in subsequent civil proceedings. Many other wrongdoers are also held liable in civil trials, even if no criminal charges were ever brought based upon the underlying event.

Now that the Larimer County Sheriff's Office has announced its determination that the event was a "hoax" and a "publicity stunt" -- which is likely to lead to criminal charges of conspiracy to file a false government report and/or to attempting to influence a public servant, contributing to the delinquency of a minor, and other charges -- it appears likely that his county will also seek financial restitution.

However other governmental units -- including other counties, the FAA and perhaps other elements of the federal government, and possibly even private parties who participated -- might also seek restitution in separate civil actions. Often, a court will allow a civil suit any time the violation of a criminal statute causes injury to others. In some cases, plaintiffs are able to rely upon other torts, including possibly fraud, prima facie tort, misrepresentation, one or more statutory torts, etc.

"Filing false reports as a publicity stunt -- especially where the expected result would impose large costs on the public, and possibly endanger the lives and wellbeing of people involved in potential rescue efforts -- should be punished using all legal tools which might be available. If criminal charges do not provide sufficient penalties, or if criminal charges cannot be proven beyond a reasonable doubt, civil tort trials provide an alternative weapon which can be used both to recover some of the resulting cost, as well as to deter other irresponsible publicity-hungry individuals," says Prof. Banzhaf, who teaches Torts.

PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law
George Washington University Law School
FAMRI Dr. William Cahan Distinguished Professor
FELLOW, World Technology Network
2013 H Street, NW, Washington, DC 20006, USA
(202) 659-4312 // (703) 527-8418
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