Lowering the Bar

New LAPD Flashlights Feared Less Effective in Beatings

On Friday, LAPD Chief William Bratton unveiled new police flashlights powered by LEDs rather than standard bulbs.  The new flashlights are brighter, use less power, need fewer batteries, and so can be made smaller than the two-pound, two-foot model that was previously standard-issue.  While some praised the new high-tech, ten-inch model 7060 LED flashlight, others may be lamenting the loss of the good old Mark One Combined Photon Emission Unit/Kinetic Individual-Suspect-Control Device.

That is, the new flashlights will be harder to beat people with.

That's exactly why the old ones were banned.  According to the report, the idea for the LED coplight "was conceived just days after" the media captured and broadcast images of police using the Mark One to beat a car-theft suspect.  The smaller, brighter flashlight thus fits perfectly with the department's plans to deploy smaller, brighter policemen.

As you might expect, the ACLU chimed in on this story, and its executive director for southern California emitted one of the better quotes so far this year.  "It's a really important step in the right direction," she said, "and it's going to make a difference in how the police department deals with the community.  We've always felt that a flashlight was not an instrument to beat people with.  This new one will serve the purpose it was intended to."  Not an instrument to beat people with?  Lady, if God didn't mean for us to beat people with portable electrical devices he wouldn't have made batteries so big and heavy.  Anyway, flashlights don't beat people -- people beat people.  Smaller flashlights just means more strokes per criminal.

Or, not necessarily, if the Model 7060 can be deployed in the right way.  The report noted that it also features a "tactical mode," in which it becomes "bright enough to temporarily blind suspects."  Its specially designed photons undoubtedly will leave innocent eyeballs intact.

Link: AP via Yahoo! News

The $100 Million Cite-Check Mistake

Those of you who think that only dorks do cite-checking are . . . well, you're right, but unfortunately for you this is a dork-heavy profession.  It's part of the job description.  Case in point: whoever forgot to double-check a federal plea agreement with Walter Anderson, leaving the wrong statute cited therein, has potentially cost the government somewhere between $100 million and $175 million in restitution of unpaid taxes.  Seems like a decent reason to proofread.

Anderson is a telecommunications entrepreneur who the government says also put those entrepreneurial skills to good use hiding income from the IRS.  (It's a little humbling to note that this guy was able to hide almost half a billion dollars through a complicated setup of offshore corporations, and I'm still trying to figure out Schedule A.)  Anderson was prosecuted for tax evasion, sentenced to nine years in prison and ordered to repay $23 million to the District of Columbia.

But because the Justice Department listed the wrong statute in the plea documents, District Judge Paul Friedman said he could not order similar restitution to the federal government.  "I've come to the conclusion," he said Tuesday, "very reluctantly, that I have no authority to order restitution.  I hope the government will appeal me."

It probably will, although it seems to have its hands full these days.  A spokesperson did say that the U.S. Attorney's office would bring civil charges against Anderson, using "ample civil remedies available to recoup the money which are, in some respects, more efficient and quicker," though presumably less efficient and slower in other respects.

During his sentencing hearing on Tuesday, Anderson "appeared humbled but not overly apologetic."  He "took responsibility for his actions but said he never intended to defraud the government" just because he didn't file tax returns on more than $450 million in income over five tax years.  Anderson also said in his defense that the extra millions he kept weren't funding an opulent lifestyle.  (Which strikes me as not a very good defense, but I'm not a tax attorney.)  "For every time I ate in a nice restaurant," he said, "I also grabbed a doughnut or a burger in an airport.  I could have wasted millions.  I could have taken a limo everywhere."  He even occasionally flew coach, for Christ's sake.  What more can a man do?

Judge Frieman, unimpressed by Anderson's "could have wasted millions" defense, sentenced him near the top end of the possible range.  With time served he will be out in less than six years.

Link: CNN.com

Search Engine Captures Bank Robber It Had Previously Instructed in Bank Robbing

Search engines are a vital part of modern life, at least for people like us who have computers and are able to hook them up to that series of tubes I call "the Internet."  The amount of information search engines provide is staggering.  But any tool can be used for good or evil, as shown by Kevin Fitzpatrick's use of a search engine for the relatively evil purpose of learning how to rob a bank in Norwich, Connecticut.

The Internet was heavily implicated in this scheme (although it denied any involvement when contacted for this story).  Fitzpatrick seems to have used it first to meet a female "friend" who lived near the bank he planned to rob, and whose car he borrowed to carry out the robbery.  According to the report, the two met on the Internet and had never met in person before Fitzpatrick showed up and asked to stay with her for a few days.  Of course she said yes, because you can trust everyone you meet on the Internet enough to let them stay with you, and to borrow your car to go to the "casino."

That's where Fitzpatrick said he had been when he came back with the woman's car and a whole lot of cash.  In fact, he had succeeded in robbing Liberty Bank, presumably using what he had learned on the Internet to do so.  He then hung around with the woman for at least a while longer, which proved to be a mistake.  The woman, who also used the Internet, saw a surveillance photo from the robbery on a newspaper's website, and recognized her guest.  When she checked the search history on her computer, she saw a post-Norwich-bank-robbery search for "Norwich bank robbery," which she felt confirmed her fears.  Could have been an innocent search for information, maybe, except for that surveillance photo and the fact that police found numerous pre-Norwich-bank-robbery searches on the computer concerning robberies.  Among them: "how not to rob a bank."  Whatever he found with that search evidently didn't cover the issue of not erasing your search history afterward.

The report did not identify the search engine that had entrapped Fitzpatrick by first tempting him to rob a bank, showing him how to do it and how not to do it, and then cynically apprehending him after he successfully used the information provided.

Link: AP via Yahoo! News

Celery-Throwers Face Charges in Britain

The soccer team Chelsea FC has banned three fans, and says it may press charges against them, for throwing celery onto the soccer pitch during the FA Cup quarter-final on March 19.  Two were arrested at the match; a third was arrested later, someone apparently having turned him in to the authorities as a suspected vegetable-thrower.

According to the report, Chelsea fans have been throwing celery at each other, and singing an "unprintable song" about the vegetable, for many years.  (So far, I have been unable to determine the significance of the celery, or what is being said about celery that is unprintable.  But only recently has the matter escalated to the point of throwing it onto the soccer pitch.  This came to management's attention after referees at two previous matches reported celery sightings, and the club had warned fans that anyone caught throwing it during the March 19 match would be in big trouble.

Another fan was banned for a "pitch incursion," which I assume is British for "running onto the field like a jackass."  The club stated yesterday that "[a]ll four people have been banned by the club and three will face court bans depending on the outcome of any criminal proceedings."  The report did not say what the penalty might be for being convicted of celery-throwing.

Link: Yahoo! News
Link: Chelsea FC's Website

U.S. Supreme Court Gets All Up in Guam's Face

In a long-awaited and dramatic decision, the Supreme Court held today, unanimously, that in the context of the Guam Organic Act's debt-limitation provision, 48 U.S.C. section 1423a, Guam's debt limitation must be calculated according to the assessed valuation of property in Guam.

Like we didn't all see that coming.  In your face, Supreme Court of Guam!

For those in a fantasy Supreme Court league this year, six points to those  who correctly predicted this  reversal, three points to those who thought Justice Souter would concur in part and dissent in part, and one point for predicting that Justice Thomas would get this opinion assigned to him.  Subtract five points if you knew anything at all about the Guam Organic Act before you read this post (but only two points if you are a resident of Guam).

Link: FindLaw.com
Link: Supreme Court of Guam
Link: A Quick Tour of Guam, by a Can of Beans

Officials Report Burqas May Hide More Than Female Form

Someone who shows up at a checkpoint anywhere in the Middle East with strange bulges under their clothing is likely to attract some attention.  (I concede that this could happen anywhere, depending on the nature of the bulge.)  That's what happened Monday at the crossing point between Egypt and the Gaza Strip.

Border guards became suspicious about a woman who approached the border crossing wearing a burqa, but also looking "strangely fat."  When this happens, you have to make a quick decision -- suicide bomber, or crocodile smuggler?  Luckily, in this case there was no bomb, only three young crocodiles, each almost two feet long, with their jaws tied shut, strapped around the woman's waist.

The crocs were discovered during a search by a female border guard, who screamed and ran out of the room, just what border guards are trained to do when they discover contraband.  Her panic spread to others in the area, who also began screaming and running around probably without knowing what they were panicking about.  Eventually, people calmed down, and once they had a chance to think about it, an observer said, "everybody was admiring a woman who is able to tie crocodiles to her body."

Actually, someone else probably tied the crocodiles to her body for her.  Guards said the woman claimed she "was asked" to carry the reptiles, and it's hard to turn down a request like that.  Apparently, exotic-animal smuggling is not unknown at that checkpoint.  A Palestinian spokesperson said that others had tried to smuggle in exotic birds and a tiger cub, and one brave lady "tried to bring in a monkey tied to her chest."

Link: CourtTVnews.com

Philippine Police Warned Not to Walk Too Gaily

Police officials in the Philippines were targets for criticism last week for discriminatory comments made by Samuel Pagdilao, chief superintendent and spokesperson for the Philippine National Police.  Pagdilao had warned police that they might be subject to administrative charges for "conduct unbecoming" if they violated certain "rules of conduct."  For example, he said, gay policemen may be fired if they "sway their hips while marching" or "engage in lustful conduct."

The report did not say whether the overly flamboyant marching style of Philippine policemen has caused any serious problems to date, or whether Pagdilao was just thinking out loud, but I suspect the latter.

He tried to back off from those comments on Friday, saying that the PNP "does not have a policy that discriminates against gays and lesbians.  All its policies are issued for everybody regardless of sex or creed."  (Or gender, he probably meant to add, but didn't.)  But "there are rules of conduct that apply to everybody," he continued, "for which violations may result in administrative charges for conduct unbecoming."

Activists weren't buying it, though, saying that the comments were discriminatory and only "deepened the stereotype of gay men."  Pagdilao's remarks "will only force gay policemen back into the closet," said one.  Pagdilao said he thought that was unlikely, since, he told reporters, he had "never heard of any Philippine policeman being gay anyway."  Well, if he hasn't heard of it, there must not be any.  Case closed.

Link: AFP via Yahoo! News

Sen. Specter's Lips Refuse to Participate in Subpoena Vote

Paul Kane of the Washington Post's "Capitol Briefing" blog wrote recently that although the Senate Judiciary Committee voted on Thursday to approve subpoenas for top White House aides in connection with the prosecutor-firing scandal, former committee chairman Arlen Specter appeared to have great difficulty deciding how to vote.

So he didn't.  Or, he may have, but not audibly, or if he did say something it definitely was not either "aye" or "nay."  He was willing to say at least that much.

Kane writes that after 90 minutes of heated debate, the Democrats went along with Republican requests not to hold a roll-call vote on the measure.  (That's 90 minutes of heated debate just on how to take the vote, not about what the result should be.)  Chairman Patrick Leahy ordered a voice vote -- "all in favor say 'aye.'"  The assembled reporters were able to tell that all the Democrats yelled "aye," as did one Republican (Sen. Grassley of Iowa, who probably just said it rather than yelling it).  Seven other Republicans then yelled "nay" -- but when the dust settled nobody seemed to be sure how the remaining Republican, Sen. Specter, had voted.

There appeared to be a firm consensus that, when the "ayes" were requested, Specter "clearly opened his mouth and seemed to move his lips."  But no one could confirm whether any sound had actually emanated from between the lips.  And when Leahy asked for the "nays," neither Specter's lips nor any of his other mouth parts appeared to move at all.

The media sprang into action.  "Capitol Briefing convened a meeting of reporters afterward to decide whether Specter had voted in favor of the subpoenas.  There was no clear answer," and of course no written record of the vote.  Nor was Specter willing to clarify matters.  "Specter refused to say which way he voted," Kane wrote.  "He said he did what he did and if we didn't notice he wasn't going to help us."  They left.  Later, however, Specter seemed to realize that not taking a position on whether he had taken a position might not be the best position to take, and he tracked down some reporters himself.

"The fact of the matter," he said, "is that I did not say anything.  I did not vote and [did not] say either 'aye' or 'nay.'  I just sat there hoping that it would all go away through negotiations.  Factually, I did not say a thing."  Specter did not deny that his mouth might have moved when the "ayes" were requested, nor did he claim that it moved at all during the "nay" period.  But he seemed to be insisting that regardless of what one or both of his lips might have been doing, no information-modulated sound had escaped from between them and so, legally, no vote had been made.

Still photo from a C-SPAN video.  Experts believe the photo shows
Specter's top lip locked in the "no" position, at the same time his
lower lip is in the process of deploying in order to articulate "yes."
The conflict may explain his inability to cast any vote whatsoever.

In the end, of course, it didn't matter, because the vote was already 11 to 7 in favor of approving the subpoenas, and so his making noise would not have made a difference.  Besides, you never know.  If you just sit there, it may all go away through negotiations.  On the other hand, that never worked for Larry when Moe and Curly were having a dispute.  (Yes, I learned most of my negotiation skills from the Three Stooges.  Try grabbing the other guy's nose with a pair of pliers during your next mediation.  Works wonders.)

Kane reminds us that Specter has been on the fence before, most prominently 1999 when it was time to vote on whether to impeach President Clinton.  Specter voted "not proven," citing Scottish law for an action intended to express the fact that one disapproves yet feels constrained not to convict.  (Hey, at least he emitted a sound.)  The other 99 senators, stuck with the boring old American legal tradition, all voted either "guilty" or "not guilty."

Link: Washington Post -- Capitol Briefing

I Will Be Irritating Respectable Bloggers on Wednesday

On Wednesday, March 28, I'll be participating in a meeting of Bay Area legal bloggers, sponsored by the at Santa Clara University.  Topics will include First Amendment issues, how law firms can use blogs for marketing or educational purposes, how not to get sued or fired for blogging, and so on.  I don't really have anything prepared, personally, but I can always dust off my interpretive dance on the Dred Scott case, which usually is a big hit for the first 10 seconds or so.

This event will cater principally to legal bloggers in the Bay Area, but everyone is welcome.  There is even an hour of CLE credit available, although I expect that to plunge radically once the CLE people find out I'll be there.

Here's a handful of links to some of the other bloggers/blogs that should be showing up: Harry Boadwee (formerly of Intuit), the still-unnamed Blawg Review editor, Matt Cutts of Google, Stephen Diamond, Mike Dillon of Sun Microsystems, Sean Garrett of 463 Communications, Cathy Gellis, Eric Goldman of SCU, Joe Gratz of Keker & Van Nest, Beth Grimm, Patrick Guevara, Matt Holohan, Chris Hoofnagle of Boalt, Cathy Kirkman of Wilson Sonsini, Kim Kralowec of the Furth firm, David Levine of Stanford Law CIS, Mike Masnick of TechDirt, Mary Minow, Kurt Opsahl of the Electronic Frontier Foundation, Leah Peachey of Meyers Nave, Aaron Perzanowski of Boalt, Elizabeth Pianca of Meyers Nave, Kristie Prinz, Colin Rule of eBay/PayPal, Colin Samuels, Erik Schmidt of SCU, Jason Schultz of EFF, Mark Smith of SCU, Transmogriflaw, Kevin Underhill of Shook Hardy and Bacon (me), and Colette Vogele.

Apparently, at least some of these people will be blogging about this event, so I may blog about them blogging about it.  And we'll all blog about each other's blogging, until there is no more blogging to blog, or somebody organizes a Dungeons & Dragons game, whichever happens first.

Link: SCU High Tech Law Institute

Googling the Bar

People reach Lowering the Bar in many different ways.  Sometimes the Internet address comes to them in a dream, inscribed in letters of gold on mighty tablets handed to them by a majestically robed spirit guide who looks a little like Barack Obama, but taller.  Others just click on it by accident.  Others, however, are clearly reaching it via Google.  The software I use to check Internet traffic also tells me, if someone came to the site via a Google link, what search they ran to get here (don't worry -- that's all it tells me).  I find it pretty entertaining to see (1) the odd things some people are searching for and (2) the fact that this often leads them here.  Anyway, here's the first installment of sample Google searches used to reach Lowering the Bar:

• judge reprimands lawyers hilarious
• midget bar exam
• reptile birthday parties
• drunk australian
• law under medication sign legal document
• tatoo parlors broward county florida
• big pimpin pappy sues clients
• goat painting incident
• styrofoam mannequin alien creatures heads
• where can we see domino toppling in action
• dodgeball lawsuits
• the person who broke engagement doesn't get the ring
• fall from bunkbed plaintiff
• what is wrong with drew brees face
• biodegradable styrofoam swallowing
• Wisconsin law on errant golf balls
• new york murder plea what happens in vegas stays in vegas
• ostrich killers
• tasters choice guy sues
• kiss dwarf bar band
• microwave crowd control device
• meat loaf's divorce
• blind massage discrimination employment law
• what will my credit report say if I was fired for misconduct
• monkey helpers bite
• woman attacked by squirrel hawaii
• Bengal tiger defense/offense
• Others are receiving monies from who knows where and I'd be curious to have them explain that
• Three Stooges tats
• Australia laws pet monkeys
• cnn.com turd burglar
• homemade ice resurfacer
• costumed advertising
• catchy blood transfusion title
• go ahead and hate your neighbor go ahead and cheat a friend
• Missouri youth dodgeball laws
• Oklahoma tourism cockfighting
• anna nicole called "creature"
• why are they called milk duds
• golf ball damage liability public denial letter
• broken teeth food lawsuits
• dubai drink driving lawsuits
• richard simmons pocatello arrest
• kentucky snake charmers religion
• pub crawl lawsuits
• how to stop employees from huddling when you are not around
• misty understandings of English legal history
• Florida appellate cases tree trimming
• Ayatollah Fadlallah fatwa on music
• legality of men wearing women's clothes to work
• obtaining a pardon in Virginia
• lawsuits against California golfers
• important not to yell
• the dangers of the escorting business
• bar exam good luck humorous