Lowering the Bar

Driver Labeled as "Dangerous" Simply Because He Has No Arms

A policeman in New Zealand testified yesterday that he had cited Colin Smith for "driving in a manner likely to be dangerous to the public" after he stopped Smith for speeding and then happened to notice that Mr. Smith had no arms.

He said that the seat was reclined and that Smith appeared to have been using one foot to steer and the other to work both pedals.  (It seems Smith's car has an automatic transmission, which is probably a good thing.)  Smith apparently did not deny that he had not been using arms to operate his vehicle, but said he did intend to defend himself against the charges that he was dangerous because of it.  He said he had been driving for years without arms and had never had an accident.

A win by Smith would set an important precedent for the semilimbed as well as those who just like to drive with their feet.

Link: AP via My Way News

Panel Concludes Legislators Should Not Work Drunk

A citizen panel in Oregon has come to the conclusion that state legislators and legislative staff should not be drunk while performing their official duties.  The Public Commission on the Oregon Legislature adopted the policy on Monday after it was recommended by Steve Doell, president of Crime Victims United.

Doell said that he and another member of CVU smelled alcohol on the breath of at least one legislator last year, though he would not name the allegedly drunken legislator.  Doell apparently was particularly offended by the scent because he was at the capitol to advocate tougher drunken-driving penalties.  But he did not say whether the incident had occurred in the legislator's office, on the floor of the state house or in some other location.

I would like to be contacted if someone discovers that the legislator was actually drunk during a floor debate on drunk-driving penalties.  That would carry a much higher comedy quotient but has to be confirmed first.

Apparently, legislative rules do not currently deal with possession or consumption of alcohol by legislators or staff members.  Although alcohol is barred from most state buildings it can be served at capitol functions with written approval of the legislative administrator (which I'm sure is tightly controlled and rarely given).  The PCOL did not draft proposed rules, saying they would leave that up to House and Senate leaders.  "We were uncomfortable acting as a nanny," said one commission member.

The PCOL was created just last year, when the state assembly passed a bill creating it and authorizing it to study the legislature's administration, procedures, etc., and suggest ways to improve those functions.  I would bet that right about now, a lot of legislators are regretting that decision.  While the minutes of the May 22 meeting are not yet available, the April minutes and the May agenda are already entertaining.  While many of the ideas presented are very good ones, you'll have to ask somebody else to summarize those.  Others are less good and/or less necessary.

In addition to security, procedural, and alcohol issues, the PCOL is apparently wrestling with vital questions such as putting brighter light bulbs in the third-floor stairwell, whether to get new drapes for the chambers, and what to sell in the gift shop.  Other citizen suggestions may just not be all that helpful, such as whether to "Protect staff from partisan exuberance" or to "Shift legislator focus to bigger more important issues than goose liver pate," which was tabled indefinitely at the last session in February.  Other issues that the PCOL has decided do not merit further action: choosing legislators at random rather than by election, establishing a dress code or uniforms for legislators and staff, and my favorite, "Make legislators more accountable and accessible to the people they serve."  Let's get serious, people.

Still on the agenda: the topic of "Increasing legislator compensation" (one of the subtopics there is "Should legislators be paid more," which is helpful), and a suggestion that legislators "Show up on time, pay attention and stay in the room."

Link: AP via My Way News
Link: The Public Commission on the Oregon Legislature

Las Vegas Police Catch Woman Who Filed False Disability Claims

Police had more difficulty than they expected in catching Laura Lee Medley, because she is not in fact disabled as she had claimed to be in a series of claims she had filed against various public entities.  Medley reportedly filed at least three different claims against California cities and counties, alleging each time that she was injured after a non-ADA-complaint road or curb caused her wheelchair to tip over, breaking her arm.

Actually, three of her arms -- she made three broken-arm claims in the space of eight weeks.  I guess it's not impossible that she broke her left arm in two places in two separate incidents, but that is apparently not what she was claiming.

Medley came under suspicion when she filed the third of these claims, against San Bernardino County, seeking $9,072 in medical expenses and lost wages.  County officials asked for medical records to back up the claim, and Medley was happy to oblige.  Unfortunately for her, she does not know how to spell "Bernardino," and officials noticed the consistent misspelling in all of the documents including those that were allegedly official hospital records.  Officials later confirmed that all the documents were fakes.

With two warrants out for her arrest, Medley was traced to Las Vegas and eventually arrested there.  She complained of medical problems after her arrest and was taken to a hospital.  "That's where the great miracle occurred," said a spokesman for San Bernardino County.  According to the Associated Press account, Medley waited for an opportunity and then "leaped from her wheelchair and ran for freedom."  A high-risk strategy that, if it fails, is not likely to be good for any of your disability lawsuits (such as Medley's pending lawsuit against Long Beach in California federal court).  Medley led police on a "brief foot pursuit" before being recaptured.

At least one blogger out there is lamenting the widespread coverage of this story on the grounds that it will perpetuate the "urban legend" that disabled people file bogus disability lawsuits over technicalities, seeking to make money.  I'm not sure why he thinks that, since this is a story about non-disabled people filing bogus disability lawsuits over technicalities, seeking to make money.  For the record, Lowering the Bar fully supports the rights of the disabled.  It does, however, believe that this story suggests an inverse relationship between the strength of a person's rights under disability law and that person's ability to leap from a wheelchair and lead police on a foot pursuit, however brief.  That's all I'm saying.

Link: Pasadena Star-News
Link: AP story via AZCentral.com

BBC Interviews Wrong Man Re Apple Trademark Verdict

Showing just how easy it is to qualify as a talking-head legal expert on television, Guy Goma bravely fielded questions from a BBC reporter recently about the outcome of a trademark battle between the Beatles' "Apple Corp." and Apple Computer.  Mr. Goma responded to questions about whether the verdict was a surprise and what effect he thought it might have on downloading music.  And he did this despite the fact that he is not a legal or technology expert of any kind, but rather a cab driver who got into the studio by mistake.

The BBC producer was looking for a tech expert who was scheduled to appear, but Mr. Goma, who has the same first name as the expert, apparently raised his hand when the producer walked in and asked for "Guy Kewney."  He was promptly fitted with a microphone and seated in front of a TV camera.  (It is still a bit unclear where Mr. Kewney was, and why Mr. Goma was in the waiting room at all.  But let's just be thankful for these kinds of gifts when they happen.)

As you'll see if you watch the video, and you should, Mr. Goma realized almost immediately that someone had made a mistake (his expression, which the transcript describes as "Face of horror," is priceless).  But despite obviously having no clue what the reporter was talking about, and despite his limited knowledge of English, he did his very best to answer her questions.

For example, when asked "Were you surprised by this verdict today?" he answered (quite truthfully) "I am very surprised to see . . . this verdict to come on me because I was not expecting that.  When I came they told me something else . . . So a big surprise, anyway."  But having recovered from that surprise, then he was off and rolling, and he answered further questions about the music industry and the effect of downloading to the best of his ability.

And he frankly did about as good a job as most of the experts you hear interviewed for sound bites on TV news today.

The BBC reporter seems to have realized that there was a problem, but stuck with it until eventually turning to a reporter who was at the courthouse.  Later, the BBC acknowledged that they had interviewed the wrong person and apologized for any confusion.

Link: The Mail on Sunday (contains transcript and video link)
Link: Video of the interview

"Curse You" -- The Musical!

Reuters News reports that a new translation of Saddam Hussein's novel, "Get Out of Here, Curse You," will be released this week in Japan.  The novel is believed to have been written on the eve of the 2003 invasion and smuggled out to Jordan by one of Saddam's daughters.  The book was banned in Jordan but became an underground bestseller, probably because of its catchy title.

Japanese journalist and translator Itsuko Hirata ensured that the book would be published in Japan.  She claims that although it is set in the ancient past, the tribal warfare depicted in the novel is "strikingly similar" to what has happened and is now happening in Iraq.  "Totally," she added, to make clear that the similarities were total.  Hirata extolled the virtues of the book and said Saddam had written it with a "melodic clarity" that suggested it could be adopted to the stage.

"I really think this book should be made into a musical," she said.  "And once this is done, it should play in the heart of his enemy's country, on Broadway."  I'll forgive her lack of knowledge of U.S. geography because of her gift to me in suggesting that this book should be made into a musical.  "Honey, what do you think?  Cats, Spamalot or Get Out of Here, Curse You?  Tickets to Curse You seem to be a lot easier to get."

Those who can get seats to Get Out of Here, Curse You! may be treated to rip-roaring musical numbers including "The Foreigner Who Sold the Tribes," "Retaliatory Tactics" and "The Burning of the Twin Towers" (all chapter names from the book), so it sounds like fun for the whole family.  (Hirata claimed that the latter did not specifically refer to the towers of the World Trade Center, and so apparently it refers to the burning of those other twin towers in, like, Assyria or something.)

Other possibilities: "Don't Cry for Me, Fallujah," "I'm Gonna Wash Those Kurds Right Outta My Hair," "I (Just) Can't Do It Alone" (performed by Uday and Qusay), and "I Am Still the President of the Republic of Iraq and You Are American Puppets."

The book is expected to get its ass kicked by "Harry Potter and the Half-Blood Prince," also being released in Japan this week.

Link: Reuters via My Way News

Feud A'brewin Over Appalachian Pet Ownership

The Collins family of Melvin, Kentucky (that's Floyd County) loves Kitty and ain't a-gonna give him up.  "He's not bothering nobody," says Barry Collins.  But the Hall family does not like Kitty.  "I think [Kitty] needs to be in a different environment," said Pauline Hall, who lives a few houses away.  "Everybody here keeps their guns loaded."

Oh -- "Kitty" is a 450-pound lion.  I should have said.

Barry Collins bought Kitty as a cub at a flea market (I guess you really can get anything at those flea markets) about three years ago.  Kitty was only five pounds then, and probably oh so cute.  He is now ninety times bigger, hence the concerns of other residents.  But Mr. Collins insisted that Kitty was not dangerous and that he did not feel Kitty was a threat to his children, though they are all still at their tastiest, aged 1, 3, and 5.

County attorney Keith Bartley said that he shares the concerns but that Kitty appears to be legal.  Mr. Collins got a permit to bring the lion into the state in the first place and has a license to keep it.  There is now a state regulation that prohibits transporting "inherently dangerous" animals, a category that includes lions, but that rule was not in effect when Kitty was brought to Floyd County and does not apply retroactively.  So opponents are sponsoring a county ordinance as the only way to remove Kitty the Lion from the county.

Collins claims that he bought Kitty to rescue him from poor conditions at the flea market, which sounds reasonable except that Kitty is currently housed in a 300-square-foot chain-link cage.  Which I'm sure is very well constructed to prevent the escape of a 450-pound lion that is almost certainly being constantly taunted by plump, succulent children aged 1, 3, and 5.

Link: Findlaw

Hawaii Supreme Court Rules Golfers Need Not Yell "Fore"

The Hawaii Supreme Court has ended Ryan Yoneda's quest for compensation from Andrew Tom, who he says hit him in the eye with a golf ball in 1999.  In a unanimous ruling, the court found that golfers assume the risk of injury when they play golf, because it is "common knowledge" that golf balls don't always go where a player intends them to go.  (Mine sure as hell don't.)  Since the risk of being struck by an errant golf ball is an "inherent risk" of the activity, the assumption-of-the-risk defense defeated Yoneda's claim.

In fact, the court said, Mr. Tom was not even required to yell "Fore," the traditional way of announcing, "Attention!  My golf ball does not appear to be going where I intended it to go, and may intersect one of your appendages or other parts."  ("Fore" is shorter.)  Tom conceded that he had not given any notice, but the court considered this a rule of "golf etiquette," not a legal requirement.

"That's not too good," Yoneda said of the court's ruling.  "I know what it's like to be hit and I don't want anybody to go through what I went through."  Well, you still have options even after the court's ruling.  Two suggestions: (1) the fairway is not the best place to watch somebody else tee off (although Yoneda's injury did involve a multiple-bounce post-chip-shot scenario), and (2) golf goggles.

The court cited numerous cases, many from my own wonderful state of California, holding that the risk of an errant golf shot is inherent and well-known, and if liability could be premised upon such a shot, the sport of golf, yea, indeed even civilization itself, might crumble:

While golf may not be as physically demanding as other more strenuous sports such as basketball or football, risk is nonetheless inherent in the sport. Hitting a golf ball at a high rate of speed involves the very real possibility that the ball will take flight in an unintended direction. If every ball behaved as the golfer wished, there would be little "sport" in the sport of golf. That shots go awry is a risk that all golfers, even the professionals, assume when they play.

Holding participants liable for missed hits would only encourage lawsuits and deter players from enjoying the sport. Golf offers many healthful advantages to both the golfer and the community. The physical exercise in the fresh air with the smell of the pines and eucalyptus renews the spirit and refreshes the body. The sport offers an opportunity for recreation with friends and the chance to meet other citizens with like interests. A foursome can be a very social event, relieving each golfer of the stresses of business and everyday urban life. Neighborhoods benefit by the scenic green belts golf brings to their communities, and wild life enjoy and flourish in a friendly habitat. Social policy dictates that the law should not discourage participation in such an activity whose benefits to the individual player and to the community at large are so great.

Yoneda (citing Dilger v. Moyles, 63 Cal. Rptr. 2d 591 (Cal. Ct. App. 1997).  Ah, the refreshing scent of the eucalyptus.  I guess I would agree that "a foursome can be a very social event" and a real stress-reliever, but the rest of those benefits seems a bit exaggerated.  Whoever wrote that has never seen "Caddyshack," that's for sure.

Link: Findlaw
Link: Yoneda v. Tom, No. 26271 (Haw. Apr. 28, 2006).

O.J. Continues Zany Antics by Appearing on Candid-Camera Show

"Juiced" is the name of the new show, which will be appearing on pay-per-view soon (if it isn't already).  On the show, O.J. Simpson, who you may recall was accused a few years ago of killing his ex-wife and her friend, yuks it up with various candid-camera pranks, including some that hark back to the murder case itself.

For example, Simpson visits a used-car lot and pretends to try to sell it to an unsuspecting buyer, saying that he made it famous.  "It was good for me," O.J. cracks about the car that featured in what has to have been the most embarrassing episode in his life.  "It helped me get away."

Other practical jokes on the show evidently include O.J. dressing up as an Elvis impersonator, as a bum selling oranges for money and as an elderly man leading a Bingo game.  All kind of funny, I guess, apart from the whole hey-didn't-you-cut-your-wife's-head-off issue.  Which is what the Brown and Goldman families were pointing out this week.  Fred Goldman said he found Simpson's conduct "morally reprehensible," and the Browns' attorney noted that any money Simpson made from the deal would presumably be going to satisfy the judgment against him in the civil case.  Most of that $33.5 million judgment remains unpaid.

I think we can safely assume that O.J. will certainly apply towards the judgment whatever is left once he deducts expenses incurred in his continuing search for the real killers.  From what I read, he has been carefully searching golf courses and strip clubs in southern Florida, apparently to no avail.

The producer of the show, Rick Mahr, insisted that O.J. was not being paid at all for his work:  "Basically O.J. Simpson has decided to do this because he wants to do it, and he wanted to have fun with it."  I would bet there is some form of compensation in this deal.  At least, I hope so, because the fun quotient seems somewhat low.

Link: MSNBC.com

Oklahoma Ends Tattoo Holdout

Caving in to the degradation of moral character so evident in the other 49 states, Oklahoma has finally legalized tattooing, passing legislation last week that ended a forty-year-old state ban on the practice.  Surprisingly, Oklahoma was the only state in which tattooing remained illegal.

The governor signed the bill on Wednesday, May 10, saying that "Regardless of one's personal views about tattoos, the plain fact is that tattooing is prevalent."  My own personal view is that I wish the low-rider-jeans fad did not make the prevalence of tattoos all too plain, but maybe it makes more sense to address that by banning low-rider jeans in the first place.  Those are "prevalent" too, though, so I guess our hands are tied if "prevalent" = "legal," but I see an interesting slippery slope ahead on that one.

The state's health department endorsed the bill, saying that despite moral objections to tattooing (apparently originating in the Biblical condemnation of Mary Magdalene's lower-back tattoo) it was more important to legalize and regulate it in order to prevent hepatitis or other diseases that can be contracted by "unsanitary tattooing practices."

The bill does make it illegal to tattoo anyone younger than 18.

Oklahoma has a history of restrictive social legislation.  According to the Wikipedia article on the state, Oklahoma continues to have some of the most restrictive liquor laws in the country.  Prohibition was not repealed there until 1959 and about half of the state's counties still do not allow alcohol.  Last year, the state House of Representatives passed a bill banning "happy hour" promotions, which has led many bars and pubs in the state to use alternate phrases such as "hour of happiness" or "hour of joy."  I like "Hour of Joy" a lot better anyway.

Link: Findlaw
Link: U.S. Census Bureau QuickFacts about Oklahoma

Wisconsin Supreme Court OKs Warrantless Laxatation

On Thursday, the Wisconsin Supreme Court held that forcing a suspect to drink massive doses of a laxative in hopes of recovering a swallowed bag of heroin was not unconstitutional.  The court of appeals had held that the strategy amounted to an unreasonable search under the Fourth Amendment.

A deputy had seen the suspect swallow what looked like a plastic bag, and later an officer watched him swallow six doses of a laxative.  The next day, as the article carefully put it, "officers retrieved the plastic bag," which proved to contain heroin.  The suspect's attorney moved to suppress the bag and its contents.  The motion was denied but that was reversed on appeal.

Reinstating the conviction, the state high court said that police had a clear expectation that using the laxative would "help reveal" evidence of a crime, and might have been safer for the suspect because it reduced the chances that the bag would rupture.  In a dissent, the court's chief justice said that at the very least, the officers should have gotten a warrant.

The suspect's attorney declared the decision a defeat for civil rights.  "The average person walking the streets of Milwaukee, they'd say, 'Gee, cops shouldn't be able to do that.'  Now the Supreme Court says go right ahead," said attorney Tim Provis.  He said he was considering an appeal, in which he will presumably ask the U.S. Supreme Court to apply the "what-would-the-average-person- walking-the-streets-of-Milwaukee-say" standard that is typically used to analyze legal problems arising under the Fourth Amendment.

Link: ABC News