Off Label Litigation
I am frequently intrigued by the idea of “off label” medication use. Very simply, it’s a practice where a doctor prescribes a medication not approved for a specific condition, in the belief that it will be effective nonetheless. Weird, but more common than you may think.
I don’t know that there’s any real equivalent in the law, but I saw a case recently that may qualify. Here are the basic facts. While in custody at the Monroe County Jail in Rochester, New York, a prisoner named Dannie Sims “sought to expose to the public an abusive jail deputy actively engaged in abusing him and other inmates.” To that end, Sims and his girlfriend Kathleen Arnett established a Twitter account on the Internet in the name of “Frank Zamiara” with the username “LitlZeezy.” Although there was no one named Frank Zamiara at the Monroe County Jail, there was a deputy named Michael Zamiara. “Frank Zamiara” is a fictitious character who, in Sims’words, was meant to act “as the voice and alter ego of abusive deputy used for the sole purpose of alerting the general public, including jail and county officials, that a public servant was abusing the authority vested in him with impunity.” Sims sent letters to Arnett chronicling the actions of Michael Zamiara, with information gathered by Plaintiff and other inmates. Arnett then posted this information as “tweets” from LitlZeezy.
The Monroe County Prosecutor found out about the Twitter account and charged Sims and Arnett with Attempted Identity Theft, Criminal Impersonation and Conspiracy. In the complaint, the prosecutor failed to mention that the Twitter account was in the name of “Frank Zamiara” rather than Michael Zamiara, the deputy whose identity was allegedly being stolen. The complaint also stated that Sims and Arnett “intended to gain the termination or punishment of Deputy Zamiara which in turn would have caused a financial loss in excess of $2,000 to Deputy Zamiara.”
The allegation about trying to get Zamiara fired was critical because the Identity Theft statute requires that the victim suffers a financial loss of at least $2000. Given that Deputy Zamiara suffered absolutely no financial loss from the phony account, the prosecutor had to come with something. The grand jury wisely dismissed the charges, and thereafter Sims filed a civil lawsuit claiming that the prosecutor violated his civil rights by bringing the charges. The court dismissed the civil suit finding that the prosecutor had “probably cause” to proceed, and therefore, Sims had no basis for his civil suit.
I have tough time with the court’s decision. And what troubles me most is the prosecutor’s “off label” application of the statute. Any reasonable interpretation of identity theft is when a person steals personally identifiable information and uses it to rip that person off by getting access to assets using the stolen information. Here, Sims did not take any personally identifiable information from Zamiara, and indeed, didn’t even use Zamiara’s name. And of course, Zamiara lost no money in this deal. This was not identity theft, unless you apply the legal philosophy of Dwight Schrute.
I get that Deputy Zamiara was ticked off. But that doesn’t make it a crime. And prosecutors shouldn’t use the off label process to manipulate the system.