Lowering the Bar

Florida Cops Taser Naked Dog-Walker; Claim It Was "The Only Way"

Some say that Tasers are a step forward because it is good for police to have more non-lethal options, while some argue that they are too risky because police tend to resort to the Taser even when it isn't really necessary.  I think this item might be evidence in support of the latter position.

The Tallahassee Democrat reported recently that police had tasered a 40-year-old man whom they encountered while he was out walking his dog.  They decided to investigate after noticing that the man was completely naked.  According to the report, when the officers asked the man what he was doing, they did not get the answer I would have expected, "I'm out walking my dog in the nude, Sherlock.  What are you doing?"  Instead, the man responded, "Allah told me to watch a Bruce Willis movie and [then] walk the dog."

But police refused to accept that simple explanation.  They claimed the man became belligerent and refused to follow police commands, and noted that "[h]e was obviously having some sort of emotional distress."  (Well, he had just seen a Bruce Willis movie.)  "It was unfortunate we had to use the Taser," one officer said, but "it was the only way we could subdue him without having to hurt him."

This just in -- police in Florida are apparently unable to subdue a lone, unarmed, naked and outnumbered man without the use of advanced technology.

Link: Tallahassee Democrat

Draft Law Precludes Any Review of Government Bailout Decisions

Here's my summary (which I know you've been waiting for) of the proposed mortgage-bailout legislation:

1. The Secretary of the Treasury is authorized to purchase "mortgage-related assets from any financial institution having its headquarters in the United States."
2. He can do anything he wants to in order to carry that out.
3. Seriously, anything at all.
4. Every six months he has to tell Congress what he did.
5. With regard to the Secretary's authority under this Act, see 2 and 3 above.
6. But he only gets $700 billion to spend.
7. He can come up with that money however he wants to.
8. His decisions are "non-reviewable" and "may not be reviewed by any court of law or any administrative agency."
9. This authority terminates after two years, except for all of it.
10. The national debt limit is hereby raised from Ginormous to Super-Ginormous (technically, $11.315 trillion) for this purpose.
11. The cost of the assets will be determined according to the Federal Credit Reform Act of 1990, "as applicable," or if not applicable, some other way.
12. This only applies to those few mortgages originated before September 17, 2008.

I think that's a fair summary, but you decide.  And I say, it's about time we gave a government agency nearly three-quarters of a trillion dollars to spend and virtually unfettered discretion to act with no judicial review of any kind.  What could go wrong?

Link: NYTimes.com

Inmate Sues For Injuries Sustained During Escape Attempt

In January, Scott Gomez Jr. sued officials in Colorado after he was injured at the Pueblo County jail.  More specifically, he was injured while trying to escape from the Pueblo County jail.  But if you're thinking that he claimed in this lawsuit that prison officials were responsible for his injuries because they should have done more to keep him from escaping . . . well, you'd be right.

Gomez claimed he had been abused by guards and other prisoners, thus suggesting that the escape attempt was only about self-preservation.  But his complaint was focused on the theory that prison officials were negligent because they breached "a duty to maintain the Jail so that it was secure and inmates [such as himself] could not readily escape."  ("Jail" is capitalized throughout, apparently so the reader won't confuse it with some other jail that Gomez didn't try to escape from because he wasn't in it.)  He argued defendants had breached one or more duties because they:

• failed to make the jail reasonably escape-proof;
• failed to regularly monitor Plaintiff to prevent him from escaping;
• failed to make sure that the door of Plaintiff's cell was locked;
• failed to provide ceiling tiles that could not be removed by Plaintiff by melting them with a homemade candle;
• failed to investigate after finding Plaintiff's homemade candle; and
• failed to take extra precautions despite being aware of Plaintiff's "propensity to escape."

That last one is because Gomez had in fact successfully escaped from Jail in a similar fashion in 2006, when he was in Jail because of a parole violation that was the result of yet another previous escape.  So while one might argue that Gomez was responsible for his first two escapes, the second one would have established a "propensity to escape," rendering officials to blame for anything after that.  Checkmate!

These breaches of duty caused Gomez's injuries, he argued, because their escape-encouraging Jail again caused (forced, really) Plaintiff to go out through the ceiling, climb to the roof, and use a makeshift rope to attempt to reach freedom.  Unfortunately, "[w]hile attempting to scale down the side of the Jail, Plaintiff fell approximately forty feet, striking the pavement below, sustaining significant injuries to internal organs, damage to his buttocks, back, scrotum, urethra, head and other parts of the body."  It was not clear to me how Gomez managed to injure his head and his urethra in a single fall, but while it is entertaining to speculate about his landing posture what's important is who's to blame.  Turns out he blames the defendants, who had after all given him "an open invitation" to exercise his known propensity for escape, and "knew or should have known that, in the event Plaintiff did attempt to escape . . . , in all likelihood he would be injured."

Hold on a second, said defendants.  In addition to some boring governmental-immunity stuff, they argued that state law precludes any recovery of damages for injuries sustained during the commission of a felony.  See Colo. Rev. Stat. sec. 13-80-119.  And since Gomez was committing a felony when he tried to escape from being incarcerated for his previous escape from his incarceration for the first felony, they said, that law applies.

In response, Gomez wrote: "It is argued that this section of the statutes does not apply, by its own terms[,] to the circumstances of this case."  Personally I thought he could have fleshed that out a bit more, but since according to the docket the case has since been "resolved," I guess we'll never know how that might have turned out.

Link: Los Angeles Times

Comical Case Name #1

Vacation (or the impending end of it, anyway) is also a good excuse to clean out the archives.  Here's a case name I always liked:

United States v. 11 1/4 Dozen Packages of Articles Labeled in Part Mrs. Moffat’s Shoo-Fly Powders for Drunkenness, 40 F. Supp. 208 (W D.N.Y. 1941) (holding product was misbranded because it was not in fact a cure or treatment for drunkenness).

I'm not aware that there is anything amusing about that case other than the name, so I will put cases like that on a separate page in the continuously evolving Lowering the Bar Legal Document Archive.

Link: Ye Olde Gallerie of Case Names Found Whimsical by Ye Proprietor (name possibly subject to revision); see also Noteworthy Court Orders, Useful Pleadings, and ye Case Law Hall of Fame.

McCain Ruled (Probably) Natural-Born U.S. Citizen

Another issue I was writing about last month was the continuing uncertainty over what it takes to be a "natural-born citizen," which is a constitutional limitation on who can serve as President.  Both campaigns have now survived at least one legal challenge on these grounds.

In a case brought in the Northern District of California, U.S. District Judge William Alsup ruled this week that John McCain is "probably" a "natural-born citizen" by virtue of a 1937 law that automatically granted citizenship to a child of U.S. citizens -- provided that at least one of the parents actually had resided in the U.S. at some point.  See 8 U.S.C. sec. 1401 (apparently intended to prevent the perpetual breeding of permanent expatriate citizen communities).  McCain was born just the year before to citizen parents then residing in the Canal Zone, so the timing of the law is either a remarkable coincidence or a result of a time-traveling GOP conspiracy to retain the presidency.  (Couldn't they go get us Lincoln instead?  That would probably do it.)

The citizenship ruling is tentative partly because Judge Alsup also ruled that the plaintiff, who is not running for president, had no standing to bring the case anyway.  In July, a similar rationale ended a previous challenge to McCain's campaign that had been filed in New Hampshire.  While at least two judges have thus stated that another presidential candidate might have standing to raise this issue, to date no candidate has chosen to pursue that invitation.  But there is still, sadly, plenty of time for one or both of them to do so.

Link: AP via Google News
Link: Law.com

Good Reason to Kill #5: Insisted on Riding "Shotgun"

This doesn't beat #1 (Used the Last Roll of Toilet Paper) or  #2 (Disputed Yahtzee Rules), and it was only an attempted killing, but it does deserve to be on the list.

On September 16, police in Shreveport, Louisiana, said that Richard Brooks Jr. had been arrested and booked on charges of aggravated battery and possession of a concealed weapon after he attacked his friend, James Lawrence.  Reportedly, a deputy saw a jeep run a traffic light and then pull into a local medical center.  Lawrence emerged with a bloody shirt held to his neck.

Deputy Chris Wray said that the two men and two female friends had just left a nearby business "when the two men began arguing about who would ride in the front seat.  During the argument, Lawrence's throat was cut."

There were already two warrants out for Brooks's arrest, making it a particularly bad time to stab a friend over rights to the shotgun seat.

Link: FOXNews.com

Americans Still Struggling With Pants

I'm back from Greece, without much to report in terms of legal developments there, at least during the last 2500 years or so.  Not that they didn't come up with some interesting stuff, like ostracizing unpopular politicians for ten years at a time (something to think about), but mostly it's a bit stale at this point to be featured in a blog post.  I will mention that there is apparently a law there at the moment that requires Greek drivers to pass any other car on the road regardless of risk or necessity.  I don't know how else to explain, for example, a driver passing three cars and a truck at once while going uphill on a narrow mountain road with another truck in plain view in the oncoming lane.  I seriously doubt he really needed to get somewhere in a hurry (see "no developments during the last 2500 years," supra).

Also, other big-firm lawyers may be interested to learn, as I did, that outside the office there is a large ball of fire in the sky that is able to burn the skin of any pasty-white litigator exposed to it for more than .5 hours or so.  Can they make a BlackBerry big enough to hide under?  God, I hope so.

Anyway, having returned I was happy to find out that, for purposes of this effort, not much had changed.  Case in point: America continues to struggle with pants-related legal issues.  Just before I left, Florida police made the first arrest under one of the ever-growing number of anti-baggy-pants ordinances.  And now I return to find that a Florida judge, in that very case, has made the first ruling striking down one of those ordinances as unconstitutional (as applied).

"Somebody help me [understand]," the judge was quoted as saying.  He pointed out that this was not even a buttock-exposure case.  "No!  We're talking about someone who has on pants whose underwear are apparently visible to a police officer who then makes an arrest and the basis is he's then held overnight, no bond.  No bond!"  I'm going to blame the reporter for that middle sentence, but the important thing is the ruling, which was that the law was unconstitutional as applied to "the limited facts of this case."  That was more important to the defendant than you might think, because though ordinarily he would have faced only a fine for the pants infraction, it turned out he was already on probation.  Police said the pants charge was a violation, and sent him to jail for that.  (And no bond!)

The defendant is not completely off the hook yet, but has been released on his own recognizance for the moment.  The public defender said her office was prepared to appeal if necessary, and I sure hope it will be.

Also back in the news: perennial favorite Roy Pearson, still pursuing justice although his 54-million-dollar lost-pants claim was less than successful in the trial court.  After a trial that featured some dramatic Pearsonian testimony, complete with actual tears, a D.C. judge ruled that his dry cleaners had not violated the consumer-protection law by failing to satisfy all his demands.  Pearson appealed (a development Custom Cleaners' attorney called "unsurprising"), and oral argument has now been set for October 22.

According to the report, despite their victory the defendants have since sold Custom Cleaners, citing stress and lost revenue due to the lawsuit.  Hopefully they are happier cleaners now at their new shop, Happy Cleaners.  Pearson, though, has not moved on.  He has not only appealed the pants case, but has also sued the D.C. government hoping to get his job back.  As you may recall, Pearson was an administrative judge for the District, but was not reappointed.  The commission denied that the decision had anything to do with the pants incident, but time will tell.

Link: Palm Beach Post (on the pants ruling)
Link: Toronto Star (same, but in Canada)
Link: Law.com (on the impending return of Judge Pearson)
Link: Legal Times (same)

First Arrest for Baggy-Pants-Ordinance Violation

If anyone has noticed the reduced number of posts here lately, that is only because I am in Greece on vacation and the Internet here apparently operates by mule.  In a few days I should be back in the country where electrons travel at the speed God intended, and more regular posting will then resume.

In the meantime, as long as the mule is here in the town square I will send off this short post about one of the more pressing issues of our time, the American fight against pants that sag.  The Smoking Gun reported earlier this month that 29-year-old Kenneth Smith was arrested in Riviera Beach, Florida, and charged with disorderly conduct for wearing pants low enough to "expose an undergarment in public."  While others have been cited under similar laws elsewhere, to my knowledge this is the first actual arrest under one of the ordinances springing up around the country in an effort to battle the scourge of baggy pants.  Because this is a first offense, the maximum penalty is a $150 fine, but subsequent pants-related offenses could mean up to 30 days in jail.

According to the police report, the officer was called to the scene to investigate a report of a man selling drugs out of a blue Chevy Impala.  He found the Impala, but his attention seems to have been drawn instead to Smith, standing nearby, and his pants, standing a full two inches below the waist.  Smith was promptly arrested.  The driver of the Impala apparently was not.  Thus was justice done.

No one's pants sag here, but they do all drive like maniacs even though there are goats all over the road.  I guess each country has its issues.

Link: The Smoking Gun

Goats Freed From Congo Jail

A herd of goats has managed to escape justice after a government official found them sitting in jail in Kinshasa, capital of the Democratic Republic of Congo.

Deputy Justice Minister Claude Nyamugabo said he was on a routine visit to the Kinshasa jail recently when he was surprised to find a herd of goats in one of the cells. Prison officials told him that the goats had been charged with "being sold illegally by the roadside" and were due to appear in court to answer for their crimes.  Outraged, Nyamugabo ordered the goats released immediately.  (The goat-sellers themselves apparently are still incarcerated.)  He said that local police apparently had "serious gaps in their knowledge" and would be sent for retraining, suggesting that the Congo Police Academy has a course that covers whether or not to put goats in jail.

The report did not say what the penalty is for being sold illegally by the roadside, but I think we can speculate that it involves some sort of barbecue.

Link: BBC News

"Heated," "Tense" Proceedings in Battle Over Cost of Hilary Duff's Birthday Party

In case you haven't been closely following the domestic life of the Duff family, the parents of pop stars Hilary and Haylie Duff are getting divorced, a process that they have apparently been engaged in for many years.  The latest skirmish in that war is taking up court resources in Harris County, Texas.

It involves who is going to pay the $25,000 cost of Hilary Duff's 21st birthday party.

According to the report, the couple has been separated for quite some time -- Mr. Duff stayed in Houston when the rest of the family moved to L.A. over a decade ago.  He pays Mrs. Duff $10,000 a month in child support, which she described as "not even enough to pay my own bills" and definitely not enough to pay for the girls' lifestyle, including the $25,000 birthday fest, which must be in that amount because that was the cost of Haylie's a few years ago.

Asked whether Hilary, herself a multi-millionaire, would be upset if the full amount were not bestowed upon her, Susan Duff answered obliquely.  Hilary, she said, deserves "some kind of recognition for a young life well-lived."  And what reward for good living could be more appropriate than forcing your estranged father to pay $25,000 for a birthday party you could pay for yourself?

Everyone didn't behave well at the hearing, during which Bob and Susan Duff sat at opposite ends of the courtroom, surrounded by lawyers, and did not speak to or look at each other.  (The girls were not in court.)  Their attorneys reportedly spent a lot of time shouting and one pounded his fist on the judge's bench.  "I get very annoyed when he accuses me of lying," Mr. Duff's lawyer yelled. "Well, then, he should stop lying!" Mrs. Duff's attorney yelled back.

Ultimately, Mr. Duff was arrested for contempt of court (he had sold some assets without court approval), and was taken away in handcuffs.  "This isn't what I wanted," said Susan.  (It wasn't clear whether she meant "I didn't want this" or "this is more than I could have hoped for.")

As he enjoyed his ten days in jail, Bob Duff was probably comforted by the knowledge that the judge had ruled he only had to pay half of the $25,000 party cost.

Link: Houston Chronicle