Fourth AmendmentGeneral

Can I sue somebody for putting an electronic tracker on my car?

Answer: Yes, but you are not likely to get the damages you hoped to get.

It is illegal in Virginia to put a tracker on somebody else’s car!

Va Code § 18.2-60.5

Class 1 Misdemeanor  -Unauthorized use of electronic tracking device; penalty

Can I sue somebody in Virginia for violating a criminal statute?  No, not unless the statute authorizes such a suit.

Judge Marc Jacobson for the Norfolk Circuit Court explained it this way:

Virginia law does not recognize implied civil remedies for violations of criminal statutes. The Virginia Supreme Court dealt with a plaintiff’s attempt to recover implied money damages in Vansant & Gusler, Inc. v. Washington, 245 Va. 356, 429 S.E.2d 31, 9 Va. Law Rep. 1177 (1993). In Washington, the plaintiff attempted to infer a civil remedy from § 43-13 of the Code of Virginia , a criminal statute making a contractor’s retention of funds owed to subcontractors punishable as larceny. Id. at 359, 429 S.E.2d at 32. The plaintiff claimed that § 8.01-221 of the Code of Virginia provided an implied damages remedy for those harmed by criminal conduct. 4 Id. at 360, 429 S.E.2d at 33. However, the Virginia Supreme Court has long held that the effect of section 8.01-221 is merely “to preserve to any injured person the right to maintain his action for the injury he may have sustained by reason of the wrong-doing of another, and to prevent the wrong-doer from setting up the defense that he had paid the penalty of his wrong-doing under a penal statute.” Id. (quoting Connelly v. Western Union Tel. Co., 100 Va. 51, 62-63, 40 S.E. 618, 622 (1902)). Thus, the Supreme Court in Washington held that criminal penalties are the exclusive remedy for criminal activity, unless additional penalties are provided by statute. Washington at 360, 429 S.E.2d at 33. (“[When] a statute creates a right and provides a remedy for the vindication of that right, then the remedy is exclusive unless the statute says otherwise.”) (quoting School Bd. v. Giannoutsos, 238 Va. 144, 147, 380 S.E.2d 647, 5 Va. Law Rep. 2855 (1989))). Based upon this rationale, the Supreme Court in Washington upheld the trial court’s dismissal of the plaintiff’s civil damages claim. Washington at 362, 429 S.E.2d at 34.
Because criminal penalties are the exclusive remedy for criminal conduct unless additional remedies are provided by statute, the Court should not recognize an implied civil damages remedy for communicating expunged information. The Demurrer as to Plaintiff’s claim for “tortious violation of a court order” is sustained.
Morris v. Massingill, 59 Va. Cir. 426, 431-32 (Cir. Ct. 2002)

Can I sue for invasion of my privacy in Virginia?   No, not unless authorized by statute.

Virginia has limited the tort of invasion of privacy.

The Virginia Supreme Court explained:

We recognized in Town & Country Properties that Virginia is among the few states, including New York, that have limited the application of the common law privacy torts by statute. We further recognized that under certain circumstances we may “look to New York courts for guidance” by considering the construction given by that state’s courts to the similar statutory right of privacy enacted by its legislature. Id. at 394, 457 S.E.2d at 362.
In Messenger v. Gruner + Jahr Printing and Publishing, 94 N.Y.2d 436, 727 N.E.2d 549, 706 N.Y.S.2d 52 (N.Y. 2000), the New York Court of Appeals reiterated its long-standing position that the right of privacy does not extend “to reports of newsworthy events or matters of public interest.” Id. at 552. So long as there is a “real relationship between” the use of a person’s name or image and the report, and the report is not merely “an advertisement in disguise,” there is no misappropriation. Id. at 554.
Wjla-Tv v. Levin, 264 Va. 140, 161, 564 S.E.2d 383, 395 (2002)

The Virginia Supreme Court explained in an earlier case:

Prior to 1890, no American court had granted relief expressly based upon invasion of the so-called “right of privacy.” At the present time, however, the right is recognized in virtually all jurisdictions. W. Page Keeton Et Al., Prosser and Keeton on The Law of Torts § 117, at 849-51 (5th ed. 1984). Virginia is among a few states, including New York, that recognizes a right of privacy in a limited form by statute. Id. at 851. The right is acknowledged in Virginia in the statute at issue, Code § 8.01-40(A), and in Virginia’s Privacy Protection Act of 1976, Code §§ 2.1-377 to -386.
Code § 8.01-40(A) provides that if a person’s “name, portrait, or picture” is used for “advertising purposes or for the purposes of trade” without written consent, the person may maintain a suit in equity to prevent the use, and may sue and recover damages for any injuries resulting from such use. Code § 8.01-40(A) is substantially similar to §§ 50 and 51 of the New York Civil Rights Act. N.Y. Civ. Rights Law §§ 50-51 (McKinney 1992). Therefore, as we interpret the statute in connection with the constitutional attack, we will look to New York courts for guidance. See Falwell v. Flynt, 797 F.2d 1270, 1278 (4th Cir. 1986), rev’d on other grounds, 485 U.S. 46 (1988).
Use for “advertising purposes” and use “for the purposes of trade” are separate and distinct statutory concepts. Beverley v. Choices Women’s Medical Ctr., Inc., 78 N.Y.2d 745, 587 N.E.2d 275, 278, 579 N.Y.S.2d 637 (N.Y. 1991). Claims based, as here, on the use of a name “for advertising purposes” have received a more liberal treatment by the courts than those based on use “for purposes of trade.” Gautier v. Pro-Football, Inc., 278 A.D. 431, 106 N.Y.S.2d 553, 556 (1951), aff’d, 304 N.Y. 354, 107 N.E.2d 485 (N.Y. 1952). The unauthorized use of a person’s name as an integral part of advertising matter “has almost uniformly been held actionable.” Id. And, a name is used “for advertising purposes” when “it appears in a publication which, taken in its entirety, was distributed for use in, or as part of, an advertisement or solicitation for patronage of a particular product or service.” Beverley, 587 N.E.2d at 278; Flores v. Mosler Safe Co., 7 N.Y.2d 276, 164 N.E.2d 853, 857, 196 N.Y.S.2d 975 (N.Y. 1959).
Town & Country Props. v. Riggins, 249 Va. 387, 394-95, 457 S.E.2d 356, 362 (1995)

So, can I sue somebody in Virginia for unlawfully putting a tracker on my car?   Yes.  If it is a government official, then you can sue for a violation of your 4th Amendment.  If it is a private or non-governmental person, then you can sue for “trespass to chattels”

Judge Jane Marum Roush writing for Fairfax Circuit Court explained: 

Cases in which the personal property of another is used without authorization, but the conversion is not complete, tend to involve the common law cause of action known as “trespass to chattels.” “Trespass to chattels” is defined as “[a]n unlawful and serious interference with the possessory rights of another to personal property.” Black’s Law Dictionary, 1503 (6th ed. 1990). “Trespass to chattels survives today . . . largely as a little brother of conversion.” Prosser and Keeton on. The Law of Torts § 14 (5th ed. 1984). In Vines v. Branch, 244 Va. 185, 418 S.E.2d 890, 8 Va. Law Rep. 3375 (1992), the Supreme Court of Virginia opined:
Where a person has illegally seized the personal property of another and converted it to his own use, the owner may bring an action in trespass . . ..
Vines v. Branch, 244 Va. 185, 190, 418 S.E.2d 890, 8 Va. Law Rep. 3375.(1992). The measure of damages for trespass to chattels is the “actual damages suffered by reason of loss of [the chattels’] use.” Id.
Dpr Inc. v. Dinsmore, 82 Va. Cir. 451, 458 (Cir. Ct. 2011)

What damages may I recover from somebody who has unlawfully put an electronic tracker on my car?   If it is the government, then you can sue for compensatory and punitive damages for violation of the 4th Amendment and attorneys fees under 42 USC 1983.  If it is a private person, you may recovery compensatory and punitive damages.

 The measure of damages for trespass to chattels is the “actual damages suffered by reason of loss of [the chattels’] use.” Vines v. Branch, 244 Va. 185, 190, 418 S.E.2d 890, 8 Va. Law Rep. 3375.(1992)

That’s the rub – so what was the loss of the chattel’s use?   You still were able to drive your car around.  It would be the loss of driving your car around without the loss of the data of where you drove.  But defense will argue that the person had every right to simply tail you and therefore you really didn’t lose that.  The response should be, yes but the person who received the data was “unjustly enriched” having received the data without having to do the leg work of actually following you around.  Unjust enrichment is a remedy and not a separate cause of action.

Punitive Damages!

“Punitive or exemplary damages are allowable only where there is misconduct or actual malice, or such recklessness or negligence as to evince a conscious disregard of the rights of others.” Giant of Virginia, Inc. v. Pigg, 207 Va. 679, 685, 152 S.E. 2d 271, 277 (1967); accord Hamilton Dev. Co. v. Broad Rock Club, Inc., 248 Va. 40, 45, 445 S.E. 2d 140, 143, 10 Va. Law Rep. 1449 (1994). The purpose of punitive damages “is not so much to compensate the plaintiff but to punish the wrongdoer and to warn others.” Hamilton Dev. Co., 248 Va. at 45, 445 S.E. 2d at 143. Accordingly, punitive damages are generally not favored and “should be awarded only in cases involving the most egregious conduct.” Bowers v. Westvaco Corp., 244 Va. 139, 150, 419 S.E. 2d 661, 668, 8 Va. Law Rep. 3316 (1992). “‘Where the act or omission complained of is free from fraud, malice, oppression, or other special motives of aggravation, damages by way of punishment cannot be awarded, and compensatory damages only are permissible. ‘”Wright v. Everett, 197 Va. 608, 615, 90 S.E. 2d 855, 859 (1956) (quoting Wood v. American Nat’l Bank, 100 Va. 306, 316, 40 S.E. 931, 934 (1902)); accord PGI, 265 Va. at 345, 576 S.E. 2d at 444; Baker v. Marcus, 201 Va. 905, 909, 114 S.E. 2d 617, 621 (1960).
Xspedius Mgmt. Co. of Va., L.L.C. v. Stephan, 269 Va. 421, 425, 611 S.E.2d 385, 387 (2005)

Disclaimer

The materials are prepared for information purposes only.  The materials are not legal advice.  You should not act upon the information without seeking the advice of an attorney.  Nothing herein creates an attorney-client relationship.

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Thomas H. Roberts & Associates, P.C.
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