Lowering the Bar

School District Ends Ban on Dangerous Writing Implements

Good news -- the superintendent of the North Brookfield School District in Massachusetts has announced that students are again free to carry their own writing implements, ending a short-lived ban on that practice. He said the ban on this dangerous contraband had been imposed by two teachers and was not official policy.

On November 11, two sixth-grade teachers sent a letter home to all parents stating that because of recent "safety issues involving pens and mechanical pencils," they had decided to ban all such items from their classrooms. Students had been told to take all writing implements home and that they would no longer be permitted to "have any writing utensils on the school bus, in backpacks, on their person, or in their desks." Of course, students could not be completely deprived of writing implements - that would be stupid - and so each would be issued one (1) yellow No. 2 pencil at school for use during that day.

The letter did not say what "safety issues" had arisen, just that under the new rule "a number of behavior issues will be avoided," and that failure to follow it could lead to discipline. "If a student is found in possession of these items," they wrote, "it will be assumed that the intent is to build weapons or that the items were stolen from the classroom community baskets and the offending student will be sent to the principal's office." (Emphasis added.)

A few days later, that school's principal sent parents a second letter, saying that while students had been encouraged to use "community" school supplies to ensure "equal access," this had had nothing to do with "weapons." The principal said that there had been one disciplinary issue involving a writing implement and that the teachers had confused this with the school-supplies decision. The letter assured parents that their children would not be charged with unlawful possession of writing implements if they brought their own pencils to school.

Like the first, this letter failed to clarify what "discipline issue" had caused such a hootenanny in the first place. It said that "learning time" had been lost due to misplaced school supplies, and that "[i]n addition, we had students misusing mechanical pencils and again lost time for teaching and learning." The superintendent provided another fact by noting that "[t]he student who was found with an altered pen was suspended . . . ." What diabolical instrument had this pen been altered to create?

A spitwad-shooter.

"The student showed me how it worked," said the local police chief, who said he had been approached by the student's parents after the boy was suspended for having the "altered pen." Based on his testing, the chief did not think the device posed any great threat. "I'd be surprised if the spitball traveled 4 feet," he said. "And at that, I'm not even sure it had any spit on it."

In these post-9/11 days, though, you can't be too careful. No, actually, yes you can. Searching underpants is being too careful, and so is suspending a sixth-grader for possession of a spitwad-shooting device. The superintendent suggested darkly that the police chief might have had a different opinion if he knew more about the "incident," but he did not elaborate, so I guess we'll never know.

For his part, the chief pointed out that even a teacher-approved No. 2 pencil could be used to injure someone, for example by poking someone in the eye, but that did not make it a "weapon" under state law. And I thought that kind of common sense had been banned.

4th Amendment Underclothes

These guys are offering underwear with the text of the Fourth Amendment printed over your classified areas in metallic ink, so the creeps at the TSA have to at least glance at it when scanning you.

It's a great idea, but expensive ($45 for a T-shirt), and more likely to make you feel better than to actually generate any change. It's much cheaper and (maybe) more effective to write your representatives, on the off chance they might pull their heads out of the space depicted above and take some action. On the other hand, any protest is better than just quietly shuffling through like sheep.

Here's an idea: if you can't avoid being scanned, raise your hands above your head as required, but with both middle fingers fully extended. Pretty much the same effect, and absolutely free.

Colorado Nacho Bandito Tripped Up by Saggy Pants

The saggy-pants trend is unfortunate for so many reasons, and as we have seen before, one of those reasons is that they can seriously impede a getaway.

The latest burglar to fall (literally) victim to this problem was apprehended on November 30 after he broke into a bar and grill in El Jebel, Colorado, started a fire while trying to make some snacks, and then hung around in the area long enough to be seen on security cameras. He tried to escape but was brought down by his low pants. "His pants were clear down around his knees so he couldn't run real well," said the man who captured the suspect.

Owner Ben Levy said that the burglar had apparently tried to make a large amount of pizza, nachos, or possibly pizza nachos, in the bar's pizza oven, gathering ingredients including onions, cheese, bacon, pepperoni, and no fewer than four bags of tortilla chips. The snack-crafting was put on hold after the chip bags caught on fire, having been left on top of the stove. The burglar helped himself to some cash and other items, which were allegedly found on his person after he lost the struggle with his pants.

According to the report, the suspect was in possession of "a white powdery substance" when he was booked. The substance that may have given him the munchies was, unsurprisingly, not located.

Court Reinstates Employee's Claims of Alleged Waterboarding, Mustache-Drawing

On November 23, the Utah Supreme Court reversed the dismissal of Chad Hudgens' claims against his former employer, Prosper, Inc., and his former supervisor. The court did not reach the merits, holding simply that the lower court should have let Hudgens amend his complaint, but it did summarize the allegations. Basically, Hudgens alleges that Prosper encouraged the use of, let's say, "enhanced employee motivational techniques," specifically, waterboarding.

Hudgens alleged that at the time of the incident, his supervisor was already known for what the court called "questionable management practices":

Specifically, when an employee did not meet performance goals, [the supervisor] would draw a mustache on the employee using permanent marker or he would remove the employee's chair. Additionally, he would patrol the employees' work area with a wooden paddle, which he would use to strike desks and tabletops.

Emphasis added. I know we are supposed to be coddling the younger employees these days, but when exactly did it become a "questionable management practice" to draw a mustache on someone or go around threatening employees with a cricket bat? 

(Oh, I see. Always? Okay. I need to make a couple changes to my self-evaluation, if that's still possible.)

Given that history, it is a little puzzling that Hudgens stepped forward when this same supervisor "asked for volunteers for a new motivational exercise." But volunteer he did, whereupon the supervisor led the team to the top of a nearby hill and ordered Hudgens to lie down. Other team members were ordered to hold his arms and legs, which, disturbingly, they did, while the supervisor slowly poured water over his nose and mouth, a practice "commonly known as 'waterboarding.'" Afterward, the supervisor "instructed team members that they should work as hard at making sales as Mr. Hudgens had worked at trying to breathe."

Mr. Hudgens subsequently claimed he had a problem with this, and filed a complaint. Prosper moved to dismiss, arguing that Hudgens' exclusive remedy was workers' compensation. Although there is an exception for certain intentional acts -- and presumably torture would be among them -- Prosper argued the complaint did not allege "the necessary mental state" on the part of the supervisor. The court, astoundingly, agreed, saying that the purpose of the exercise had been "to motivate [the] team members, not to injure Mr. Hudgens."

Again, the high court ruled only that Hudgens had a right to amend, and that the lower court should have let him do that if it really thought he had not alleged that the person waterboarding him acted with "the necessary mental state." But it also noted that it had very recently decided another case involving the intentional-act exception and said the lower court might want to take that into account on remand. It also suggested that the court had confused the question of motive with that of intent -- that is, the question was whether there had been an intent to injure Hudgens by waterboarding him, not what the waterboarder's motive might have been. The lower court should take that hint.

These courts were assuming the' allegations were true, as they are required to do when considering a motion to dismiss. If they were true, this workplace would be officially worse than that of the prior record-holder, whose policies of motivational spanking and forced diaper-wearing resulted in a $1.7 million award in 2006.

Assorted Stupidity #9

• A recently re-circulated video shows a TSA officer patting down a 3-year-old girl, causing her to cry and yell "Stop touching me!" (It's a 2-year-old video, but it's not like things have improved.) Responding to outrage over this, a TSA official said more should have been done to make the child comfortable with the search. "If you can come up with some kind of a game to play with a child, it makes it a lot easier," said James Marchand. Advocates for children, though, have suggested that teaching children it is part of a fun game to have strangers grope them is not such a great idea.

• A prisoner in the UK has won the right to be addressed by the title "Mister," according to the Bridlington Free Press. In an open letter to other prisoners, Colin Gunn advised them that under official policy "[i]t is no longer acceptable to address prisoners by surname alone," a policy he had successfully enforced in a case filed last year. Gunn said that under the Prison Service's "decency agenda," prison staff are required to address inmates with respect (something the government confirmed). Gunn -- sorry, Mr. Gunn -- is serving a 35-year sentence for arranging the murder of two innocent people.

• The Mississippi Commission on Judicial Performance has recommended a reprimand for a judge who threw a lawyer in jail for refusing to recite the Pledge of Allegiance, which the judge had made "mandatory" in his courtroom. As Eugene Volokh pointed out in October, the U.S. Supreme Court held almost 70 years ago that rules coercing people into swearing allegiance violate the First Amendment. To paraphrase Justice Jackson, a country that has to force people to swear allegiance doesn't deserve it.

• According to the New York Post, a woman has sued McSorley's Old Ale House, a famous 156-year-old pub in the East Village, alleging she had to be hospitalized after Minnie the Cat attacked her in 2009. The pub has kept pet cats for over 100 years, but the report did not say whether one has ever tried to eat a patron. According to the Post, the complaint did not specify how Minnie had injured the plaintiff, alleging only that the injuries were "serious."

• UPDATE: Grumpy the Clown has been cleared to serve in the Brazilian legislature. Francisco Silva, whose clown name is "Tiririca" ("Grumpy" in Portuguese), got 1.3 million votes when he ran for Congress in October, twice as many as his closest competitor. Doubt remained, however, because of a constitutional literacy requirement that some did not think Grumpy could satisfy. The judge reviewing the matter ordered him to take a written test in court, and ruled last week that the clown had passed, "despite difficulties in writing." (The judge interpreted the requirement to bar only those who are "totally illiterate.")

Dancing With the Indicted, Part Two

About this time last year, Tom DeLay was doing this:

If he is doing anything like this next year, his partner could be significantly less attractive.

On Nov. 24, DeLay was convicted on conspiracy and money-laundering charges that have been pending for years. Texas law prohibits corporate donations to political campaigns, and a state jury found DeLay had broken that law by funneling corporate money through his PAC and the National Republican Committee. DeLay apparently argued that the money the candidates received had not been "laundered" because it was "not the same money" he started with, a defense that I think would have rendered all money-laundering legal, and one that the jury rejected.

DeLay also contends that his prosecution was politically motivated and an "abuse of power," and told the New York Times that "[t]he criminalization of politics undermines our very system." He might very well be right about all that, but I assume he said this to a print reporter so he wouldn't be on camera when he then started howling with laughter. I mean, I just checked again to make sure Tom DeLay was actually in Congress when Bill Clinton was impeached for lying about his sex life, and not only was he around, he was House Majority Whip at the time. When does he think our very system got undermined? Last month?

His most recent public appearance prior to the courtroom was on "Dancing With the Stars," a contest in which he also did not prevail. "It would be [more] interesting to see if Mr. DeLay can do the Perp Walk," a long-time opponent said when the DWTS gig was announced. "Does he know that step?" Maybe now we'll find out.

But probably not. While DeLay could reportedly get up to 99 years in jail for this (which does seem a bit much), some reports have said it is not unlikely that he will just get probation. As long as the terms of that probation forbid him to wear that vest again, I'd be okay with that.

Eleven Years Too Long to Have Case "Under Advisement," Says Panel

The ABA Journal reports that the Tennessee Court of the Judiciary has reprimanded a county judge who, it said, violated the rule requiring judges "to dispose of all matters promptly." That is a flexible rule, as it has to be given the caseload judges face, but the TCJ decided that 11 years was too long.

The judge heard the case, which involved claims against an insurer, in a bench trial held in November 1999, and then said he would take the case "under advisement" (the legal term for "let me think about it").

Time passed.

Counsel and the parties were very patient. The plaintiff filed a "motion to ascertain the status of the case" in 2003, and his counsel apparently set a reminder to check again in six years or so, when the plaintiff filed a second motion. The court responded to that one, saying an opinion would be forthcoming in about three weeks. That date came and went. The court eventually did respond promptly to a letter from the TCJ, and produced an opinion on October 12, 2010, 10 years and 11 months after the trial. The judge has not commented on the case and there has been no explanation for the delay.

Now, 11 years does seem like a long time to wait, but it doesn't seem like either party (especially the defendant) was overly concerned about getting a quick decision. It is always a difficult call as to when to "prompt" a judge, but 3 to 6 months seems like a decent target date for a reminder. (There might have been intervening letters or calls to the clerk, of course.)

But let's keep this in perspective, because 11 years is by no means the longest anyone has had to wait. Last year, we learned that a judge in Montana had resolved a breach of contract case filed in March 1983. The last entry on the docket was in March 1985, the Soviet Union fell in 1991, the judge retired in 1994 and found the case file at home while doing some spring cleaning in 2009. The Montana Supreme Court said he could rule on it, and he did, 26 years after it was filed. (His former assistant said he had taken "very good, very copious notes" at the time.) That judge was not disciplined -- of course, he had retired, but there was also the fact that neither party to that multi-million-dollar case had ever bothered to check in during the quarter-century it was pending.

I guess the moral of the story is that after about the first decade or so, you might want to suggest that the judge check up in the attic, just in case.

Another Defect in Virginia's Reckless-Driving Statutes

Apparently you can be convicted of reckless driving in Virginia even if you weren't driving.

As I wrote the other day, a Virginia man was acquitted of reckless driving recently after his attorney noticed that there was an "at" missing from the statute, and convinced a judge that, as written, the law required drivers to "stop school buses," not "stop at school buses." As reader Michael Gordon points out, if the reckless-driving laws have to be construed that literally, then some of them would cover pedestrians.

For example, the law that makes "failing to stop school buses" a crime has this problem, too, because neither the statute's title nor its first sentence says anything about a vehicle:

§ 46.2-859. Passing a stopped school bus; prima facie evidence.

A person is guilty of reckless driving who fails to stop, when approaching from any direction, [at] any school bus which is stopped . . . for the purpose of taking on or discharging children . . . and to remain stopped until all the persons are clear of the highway, private road or school driveway and the bus is put in motion.

Emphasis added. It's perfectly clear - whenever a school bus stops in Virginia, everyone in the area must stop and remain stopped until the bus is moving again. No exceptions.

Oh, sure, you could infer from the name of the offense or some of the context that the Legislature did not intend to cover pedestrians, if such things were done in Virginia. And other evidence supports the construction above, because other reckless-driving statutes do mention vehicles.  See, e.g., Va. Code § 46.2-862 ("A person shall be guilty of reckless driving who drives a motor vehicle" at 20 mph or more over the limit). Obviously, the legislature was capable of specifying when a motor vehicle is part of an offense and when it is not. And sometimes, it didn't. Therefore, Virginia pedestrians can be convicted of the following reckless-driving offenses:

• passing two vehicles abreast moving in the same direction;
• overtaking or passing a vehicle at a railroad crossing;
• passing a stopped school bus;
• failing to give adequate and timely signals of intention to turn, slow down or stop;
• exceeding a reasonable speed under the circumstances; and
• "racing [back and forth] between two or more motor vehicles."

Arguably, the signaling statute requires driving, since it contains a reference to another statute that does mention driving. But the idea that all Virginia pedestrians now have to go around giving those arm signals whenever they change direction is comical enough that I would encourage judges to reject such cross-referencing, just for humor purposes.

Obviously, the point is that legislatures are made up of fallible human beings (see the Legislatures at Work category if you disagree), which is why judges have some leeway to interpret statutes. That can present its own problems, but penciling in an "at" should generally be okay. (Seriously, though, make them do the arm-signal thing, just for a while.)

Two Million Reached

I mentioned the other day that I was closing in on two million pageviews, and I was planning a big celebration involving a very large cash prize to the person viewing that two millionth page, but then I got distracted by some irritating but lucrative legal work and missed it. I apologize, forever-anonymous-but-still-heroic-and-greatly-appreciated viewer of the two millionth page.

Just to pick someone to honor at random, which unfortunately does not qualify for the very large cash prize, I will say thanks to the reader who visited just now from Christchurch, New Zealand, where it is already what we in the U.S. would call "tomorrow," December 3, 2010, at 9:31 a.m. his or her time.

According to Google Analytics, most visitors to this site are, unsurprisingly, from the U.S. and other countries with a historical relationship to England (including England). But visitors have come from no fewer than 201 of the world's nations, although I would be willing to concede that at least the visitors from Djibouti, Tajikistan, Mali, and maybe the island of Diego Garcia (all 1 visit each) probably got here by accident. (It looks like the mystery visitor from Vatican City was here on purpose, though, because he visited three times and actually stayed for a while. He might have been doing research.)  At this point, it seems that only the people of the Republic of Congo, Guinea, Guinea-Bissau, Equatorial Guinea, Chad, the Central African Republic, Burundi, Niger, Mauritania, Western Sahara (disputed), Eritrea, Somalia (failed state), Turkmenistan, Uzbekistan, the ice-choked Arctic islands of Svalbard and Jan Mayen and the medieval hermit kingdom of North Korea have been spared entirely.

Wherever you may be from, thanks for reading.

It's Safe Again to Take Your Date Horseback Riding in New York

I guess you know your date didn't go very well when you get sued afterward.

New York's Appellate Division held on November 23 that Barbara Stanislav could not sue William Papp for injuries she sustained when she fell off a horse during a date. She alleged that Mr. Papp "was negligent in failing to properly warn her and appreciate her limited level of skill as a rider, and in failing to pay proper attention to her request that the horses proceed at a slow pace in a careful manner."

        -- "So, are you having fun?"

-- "Yes! But please understand that I have a limited level of skill as a rider, and ensure for that reason that the horses proceed at a slow pace in a careful manner."

Things apparently went downhill from there.

The problem with a lawsuit like this is going to be the "assumption of risk" doctrine, which in the context of sporting activities precludes an action based on risks that are considered "inherent in the sport." Just the week before, the state's highest court had heard argument in a case where plaintiff alleged defendant hit him with a golf ball without yelling "Fore!" The lower courts dismissed that case based on this doctrine, and it looks like that's what the Appellate Division did here.

"[P]laintiff was aware," the court held, "that the risks of falling from a horse or [of] a horse acting in an unintended manner are inherent in the sport," and so defendant had no duty to insure that her "horseback riding experience was safe." It continued, "Defendant's conduct was not so unique or reckless as to create an additional unanticipated risk for plaintiff," although unfortunately the court did not elaborate as to what goofy date-related conduct he might have engaged in, if any, that she had argued was "unique or reckless."

This is a potential exception to the doctrine, you see, which is something to keep in mind if you are planning some sort of freakish conduct during an upcoming horseback-riding date.