Firms Not Liable for Hit Arranged by Cellphone

     RICHMOND, Va. (CN) – A prison guard who was shot six times at the behest of a disgruntled inmate cannot pursue claims against nine cellphone companies operating towers nearby, the 4th Circuit ruled.
     In a complaint filed in the Lee County Circuit Court in February 2013, prison guard Robert Johnson claimed several cellphone service providers and cellphone towers owners were liable for the injuries he suffered during an attack in his home because they allegedly knew that prison inmates engaged in illegal use of their products and did nothing to stop them.
     An investigation revealed the March 2010 attack was ordered by an inmate not named in the opinion, who used a contraband cellphone to call an accomplice who carried out the shooting. Sean Echols, who was later arrested and confessed to his role in the incident, shot Johnson six times in the chest and stomach while the prison guard’s wife looked on.
     The Johnsons sued the defendants, including AT&T, Verizon, Sprint and T-Mobile, on claims of state-law negligence and loss of consortium. The case was then moved to the Columbia, S.C. Federal Court, where the defendants filed motions for dismissal that were ultimately consolidated and granted by the court.
     In doing so, Senior U.S. District Court Judge Cameron McGowan Currie ruled the Johnsons’ claims were barred by express and conflict preemption under the Federal Communications Act, that South Carolina law did not impose a duty of the defendants to prevent inmates from illegally using their services, and that the couple’s claims were implausible and therefore did not meet pleading standards.
     But the Johnsons, who had attempted to have the case remanded back to the state court, appealed arguing the district court lacked subject matter jurisdiction over their state law claims, and thus erred when it failed to remand the case.
     A three-judge panel of the 4th Circuit partially agreed with the Johnsons, holding that the Communications Act does not completely preempt their claims, but because the district court properly exercised jurisdiction on the basis of diversity of citizenship of the parties, the panel nonetheless affirmed the court’s denial of the motion to remand.
     “This suit presents a novel but flawed legal theory applied to admittedly tragic facts,” U.S. Circuit Judge Henry Franklin Floyd wrote. “The Johnsons’ legal theory would force cell phone tower owners to impede the FCC’s authority in establishing wireless service areas.”
     The FCC forbids any party other than the federal government from jamming wireless signals, including prison authorities. In a recent petition, the South Carolina Department of Corrections failed to obtain the power to use signal jammers to prevent cell phone use among inmates.
     “The FCC is considering other means to address the problem of contraband cell phones without allowing prison authorities to jam wireless signals themselves, such as making it easier for wireless service providers to remotely deactivate contraband cell phones,” Floyd wrote..
     Since it was not evident which service provider carried the illegal call, or when it occurred, a more detailed explanation of events might help the Johnsons in future pursuit of their claim, Floyd said.
     “As currently drafted,” Floyd concluded, “the complaint resembles a prohibited fishing expedition rather than a properly pleaded complaint.”

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