Lowering the Bar

Governor Praises Legislature for Mountain-Lion-Stuffing Bill

Here's the right way to use a "signing statement":

To the Members of the California State Senate:

I am signing SB 769, which allows for a dead mountain lion to be stuffed and displayed.

This presumably important bill earned overwhelming support [from] both Republicans and Democrats.

If only that same energetic bipartisan spirit could be applied to creating clean energy jobs and ending tax laws that send jobs out of state.

Sincerely,

[Gov.] Edmund G. Brown Jr.

Mountain lions are "specially protected mammals" under California law, meaning it is ordinarily a crime to "take, injure, possess, transport, import, or sell" one. The bill, which in fact passed without a single dissenting vote, creates an exception allowing one to possess the carcass of said mammal if preparing it for display, exhibition or storage for a bona fide scientific or educational purpose.

Nothing wrong with that, really; but maybe it was the designation of this as an "urgency statute" that put Jerry over the edge:

SEC. 3. This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the [state] Constitution and shall go into immediate effect. The facts constituting the necessity are:

In order to allow the display, exhibition, or storage of mountain lion carcasses or parts or products thereof for a bona fide scientific or educational purpose as soon as possible, it is necessary that this act take effect immediately.

Emphasis added. Apparently the state's many taxidermists have been threatening to riot unless the threat of an unfair lion-stuffing prosecution was lifted at once. The facts supporting this conclusion are: this won't be lawful immediately unless the law making it lawful takes effect immediately.

It does seem hard to argue with that.

Muslim Police Break Up Christian Broomstick Fight in Bethlehem

Here we go again. This time, it's Orthodox v. Armenian priests in a cage match at the Church of the Nativity:

According to multiple sources (I'm citing the BBC because the British narrator makes the clip seem even more like a Monty Python sketch), this fight broke out Wednesday morning while the two groups of Christians were cleaning the Church of the Nativity in Bethlehem, traditionally held to be the birthplace of Jesus. The church is cleaned between the Christmas celebrations on December 25 (Catholic, Orthodox, etc.) and those during the first week of January (the Armenians and others still on the Julian calendar). It's not entirely clear what started the brawl, but one report said it was believed that "a clergyman of one order ... accidentally pushed his broom into space 'controlled' by the other group." That makes sense, because that's just the kind of border aggression that can spark a full-on monkfight.

As I wrote in 2009 when these same two groups went at it in the Church of the Holy Sepulchre, tensions are always high in super-holy places like this because each Christian denomination claims jurisdiction over the whole thing, and they don't like sharing. They do share, under arrangements that go back hundreds of years and give each group control over a particular zone, but they don't like it one bit. And they guard their jurisdiction so jealously that no group will allow any other group even to walk unsupervised through its zone for fear of weakening its claim to exclusivity, and this has often led to conflict.

So it's not surprising that an unauthorized broom incursion ("accidental" or not) could spark violence, as seen above. And you really should watch the clip, not only to witness the spectacle of priests and monks beating the crap out of each other with broomsticks over who owns the birthplace of the Prince of Peace, but also to see the monk recording the whole thing with his smartphone.

Dude, this is so going on Facebook

I guess that shouldn't have surprised me either, but it did.

According to one report, "Brooms, fists and vicious insults flew in all directions" between the 100 or so holy men involved in the rumble, but no one seems to have been seriously injured, and no arrests were made this time around. So, not that big a deal, as religious warfare goes. "It was a trivial problem," said Police Lt.-Col. Khaled al-Tamimi, the kind that "occurs every year."

In what may be the most ironic part of all, the fight between the two Christian groups was broken up by Palestinian police, most if not all of whom, presumably, are Muslim. I don't know that for sure, but Bethlehem is controlled by the Palestinian Authority, and I'm guessing that when the monks need police, they don't especially care whether the cops are Muslim or Christian and aren't checking ID. (Nor do I have a reason to think Muslims are not allowed into the place -- as I learned in 2009, two Muslim families have had responsibility for the front door of the Church of the Holy Sepulchre for the last eight hundred years or so, and that still seems to be going okay.) Anyway, I'm going to believe that unless shown otherwise, because that would mean this story involved Muslim cops having to keep the peace between two groups of Christians trying to kill each other due to religious fanaticism. Seems to help put things in perspective.

Auto Insurer Won't Cover Injury Caused by Dead Driver

Many have pondered the question, "If a tree falls in the forest and there's no one around to hear it, does it make a sound?" But few have pondered the equally stupid question: "If a car causes an injury but the driver was dead at the time, is that covered by an uninsured-motorist policy?" This might explain why.

The Kansas City Jury Verdict Service reported on December 26 that a jury had found for the plaintiff in Dottrey v. American Family Ins. Co. (No. 0916CV34424). This case arose from a carjacking in 2006, in which a man at a car wash demanded another man's pickup truck at gunpoint. He got it, but unfortunately for him, his victim also had a gun, and he shot the thief with it several times as he was driving away. The truck crashed through one of the bays and hit Dottrey's car. A local news report stated that the thief was "pronounced dead at the scene," although it wasn't clear as to exactly when that took place.

The report also says "no other injuries were reported," but Dottrey later claimed that although she had not been hit by either car, she did fall down, and more importantly that she had developed post-traumatic stress disorder. (According to the verdict report, she did offer evidence of $6,000 in medical expenses due to PTSD.) It appears that - in what was probably a sensible move - she blamed this entirely on the thief. Whether the truck owner was technically justified in using deadly force on somebody driving away with his property might be a valid question, but I couldn't find any evidence she made this argument, and after all he was a victim too. Given that decision, and with the thief dead (and either uninsured or not covered because of the crime), the only other source of money was Dottrey's own auto-insurance policy, which covered her for injuries caused by uninsured motorists.

According to the verdict report, the insurer "denied coverage, maintaining that [the thief] was dead and disputing whether he was the motor vehicle 'operator' at the time of the incident."

Not sure exactly what the relevant policy said, but it was probably something like this, taken from a recent Missouri opinion in a case involving the same insurer:

We will pay compensatory damages for bodily injury which an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle. The bodily injury must be sustained by an insured person and must be caused by accident and arise out of the use of an uninsured motor vehicle.

Whether Dottrey really suffered "bodily injury" doesn't seem to have been disputed, nor does the question whether the vehicle (as opposed to the driver) was uninsured, and Dottrey was not arguing she could recover from the owner. The only other possibility I can think of is that "operator" might be meant only to cover someone who is leasing or otherwise legally entitled to use the vehicle. But if that had been at issue, it wouldn't have mattered whether the thief was dead or not. So based on the (very limited) evidence, it appears that the insurer argued it didn't have to pay because the thief, who was clearly not the "owner," also was not the "operator" of a vehicle at the time Dottrey was injured, because he was dead. Dead bodies can't operate motor vehicles, end of argument, we win, thanks, buh-bye.

Well, no.

Obviously, the guy "operated" the vehicle at least briefly in order to get it to move, unless you think it was propelled along by the bullets. Even if you did want to blame the shooter to some extent, Dottrey would have been "legally entitled to recover" some amount from the "operator," and the policy should have covered that. The insurer may have just thought the PTSD claim was bogus, but for whatever reason it refused to offer more than $3,500, and the case went to trial.

The fact that the jury came back with a verdict of $450,000 probably tells us something about what it thought of the insurer's position.

If anyone has any more information about this case, whether it confirms or rejects anything above, please let me know. Also, trying to steal a pickup in the Midwest is dangerous. Just FYI.

Amazon.com Now Thinks I Want to Buy a Snow-Cone Machine

Amazon's bots have concluded that based on recent research (see here, here and here), I may be interested in something from the Small Appliances Department, let's say possibly one or more of these snow-cone/ice-shaving machines:

I guess that's fair, although (having ruled out torture enhanced interrogation) how I might use a touch-screen induction cook top to fight terrorism is not clear to me. I guess I could make omelettes or bacon or something to attract people so they can be educated and prepared for homeland security. We know that's a valid purpose, and it's cheaper than the other options.

Man Calls 911 to Report Hookers' Breach of Contract

You'd like to think that, at least during the holiday season, people would try harder to get along and to keep their promises to one another, even if the conduct they're all engaged in is technically illegal. But if they can't do that, it is comforting to know that they will sometimes call 911 to report these violations, thereby admitting their own guilt in the process.

Very rarely, they will do it twice on the same night.

The Smoking Gun reports that on December 16, a Pennsylvania man called 911 to report a "robbery," but what he described to the responding officer didn't fit that definition. Rather, he "stated that he brought back two women to his home for the purpose of 'Smoking Smoke,' and engaging in sexual intercourse for $400.00."

The report doesn't say what sort of Smoke was smoked. It seems to have been one of the sorts of Smoke that is illegal to smoke, but since no one was charged with smoking Smoke, I'm guessing they smoked all the evidence and managed to avoid admitting it was actually Smoke they had been smoking.

They may not have realized that trading sex for money is actually illegal in Pennsylvania, though, because they all admitted to that. Well, that's not literally true. The man's complaint, in fact, was that he had paid the women for sex, but then did not get to participate. He called this "robbery," but at worst it was theft by deception, and really seems to have been more of a breach-of-contract claim:

The Defendant said that the agreement was that he was supposed to be in the middle of both [sic] women while the three of them engaged in sexual activity with each other. The Defendant said that the two women got undressed and got into bed, and started smoking the 'Smoke,' and did not offer him any. The Defendant then stated that the two women then engaged in sexual activity with each other, and did not invite him ... [H]e got undressed and got in the bed, but the two women put him on the end and not in the middle like they agreed too [sic].

The defendant said he was able to get in just one grope, and that "following that act, the two females took his money and left ...." That is indeed disappointing, but the 911 call to report it was ill-advised. First, it wasn't an emergency; second; it might not even have been a crime; but most importantly, third, reporting it involved an admission of guilt. This was not lost on the officer, who then "informed the Defendant that he was under arrest for Patronization of Prostitution." The man was apparently then booked and released.

From which he learned nothing at all.

"A few hours later, the Defendant called Affiant back to his residence reporting that one of the females [who] '[r]obbed' him the night before was back at his residence." Had she returned spontaneously, suddenly filled with holiday spirit? Nope. "Affiant asked the Defendant where the female was. He said she was filling up the bathtub for them to get in[to]," together, and the officer did indeed find a naked female running bath water. "Affiant asked her what she was doing back at the residence, and she said that the Defendant paid her $100.00 to be there." She also admitted that the man had previously paid her and her friend $400 for the aforementioned purpose, which, again, is illegal. She denied taking any money herself, however, and claimed her friend had taken it.

In fact - if I am reading these affidavits correctly - she later called 911 to report her friend for stealing her half of the $400: "On or about December 18, 2011 ... [the woman] called 911 to report a theft. Upon arrival, [she] said that [her friend] stole the money that [the man] gave them for performing sexual acts," whereupon "Affiant explained to [the woman] that she was under arrest for Promoting/Solicitation to Prostitution." The friend seems to have been the only one smart enough to keep her mouth shut, although she was also arrested based on the testimony of the other two.

The affidavits are confusing, but I think this is in fact the story they tell: the man hired two women for a threesome; called 911 to report he didn't get what he had (illegally) paid for; was arrested, booked, and released; then called one of the women he said had just cheated him, apparently intending to call 911 so police could "catch her in the act," but implicating himself in that act in the course of doing so; she also confessed on the spot, and later (maybe in retaliation?) called 911 to report her friend for theft, thus further confirming her guilt for that prior offense.

Had this happened a week later, I think I'd call that a Christmas Festivus miracle, but since it didn't I guess it's just miraculously stupid.

Happy Legal Holidays

Here's a holiday email that a reader received from another lawyer: 

Wishing you all the best for the Holidays and a wonderful New Year!

This e-mail may contain confidential or privileged information. If you are not the intended recipient, please notify the sender immediately by return e-mail and delete this e-mail and all copies and attachments. Unless specifically stated otherwise, any tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

Nothing gets you in the holiday spirit like a good disclaimer (the foregoing not to be taken as a guarantee of future results).

Happy holidays, including, but not limited to, Christmas.

Manitowoc Should Be Ashamed of This Planking Prosecution

I will admit to finding "planking" - the meme of having your picture taken while lying flat as a plank across something, and then posting it - to be both stupid and funny. To me the world needs more of this kind of inexplicable and absurd behavior (as long as it's harmless), not less.

So of course somebody wants to criminalize it.

The Smoking Gun reported on December 8 that a judge in Manitowoc, Wisconsin, found Alexander Hart guilty of "disorderly conduct" for planking. There was no question that Hart planked. He planked all over town. There was ample evidence of his planking, of course, because he posted the pictures on Facebook and a video compilation on YouTube. He and his brother Ryan both planked in a variety of odd places, including on top of some planks at Lowe's, thus achieving a planking plank. There was also this plank, which personally I find hilarious:

Now, should you lay on top of a squad car? Probably not. Is it funny if you do? I think so. And if you don't damage the car and haven't interfered with the officers - neither of which was even alleged here - then what have you done wrong, exactly?

Other planks were planked at the local courthouse and in front of a police station, which are funny for the same reason the squad-car plank is funny. In one of the police-station planks, though, Alex Hart planked on top of a slab that bears the names of officers killed in the line of duty. Surely he did this only because the memorial is right in front of the courthouse, not because he wanted to mock the dead. This was a bad choice. But was it a crime?

According to Manitowoc authorities, yes, these were both crimes, because they were "disrespectful":

On 06-28-11, at 0938 hrs., I ... made contact with ALEX. I explained to ALEX that I was going to show him a photograph, and I wanted him to explain to me the photograph, and why it was taken. I then showed ALEX the photograph, and he got a "blank" look on his face. After several seconds of not saying anything, ALEX stated that it was done "to get laughs." ... I discussed with Alex that this type of behavior was not only disrespectful, but could also potentially cause damage to the squad [car].

On 06-28-11, at approximately 1120 hrs., I received a phone call back from RYAN. I explained to RYAN why I wished to speak with him, and inquired about the photographs. ... During the conversation, RYAN asked what law he broke, and I explained to him that the photos are disrespectful.

Emphasis added. ALEX Alex was fined $303 for "disorderly conduct," and Ryan was later found guilty of the same offense by a different judge and fined $429. According to The Smoking Gun, Alex was busted for "marijuana delivery" just hours after his conviction for disrespect, and while that is a crime (for now) it is hard to see the timing as coincidental.

Manitowoc should be ashamed for a couple of reasons. First, its police evidently have no sense of humor. I'm not surprised Alex had a "blank" look on his face after being asked the phenomenally dumb question "why was this photo taken?" You don't have to get CSI involved to know the answer to that question. Second, and much more importantly, they think citizens are legally required to show them respect. This is not just wrong, it's dangerous.

As I've said before, "disorderly conduct" is the favorite charge of official thugs everywhere, because it is so broad and therefore so easily misused. It has been trotted out in efforts to punish, among many other things, protesting the war in Iraq, displaying the Fourth Amendment, rolling your eyes at a council meeting, wearing saggy pants, kissing a bailiff, being drunk in a woodshed, swearing at your own toilet, shooting your own lawnmower, staging a fake knife fight while wearing a banana costume, and lounging within a forest preserve. (Hopefully you now agree the concept is a broad one.)

And it is invoked all the time, unfortunately, when people are "disrespectful" to police. Doing this is rude, but it is not a crime, an issue on which the ACLU and others have repeatedly won. Often this is on First Amendment grounds, and in this case you could certainly argue that the planking wasn't "speech." But if it wasn't speech or at least expressive conduct, it couldn't have been "disrespectful," either. And since Alex didn't actually damage their delicate squad car, where's the harm?

If I recall correctly, the American Revolution was basically a big "F&$# You" to the King, so the right to "disrespect" authority is sort of built in, don't you think? Wisconsin, let the plankers plank.

For Christmas, Your Government Will Explain Why It's Legal to Kill You

Ha! Just kidding! It won't tell you that. That's classified!

Plaintiffs The New York Times Company, Charlie Savage, and Scott Shane (jointly, "NYT"), by their undersigned attorney, allege for their Complaint:

1.  This is an action under the Freedom of Information Act ("FOIA") ... seeking the production of agency records improperly withheld by Defendant United States Department of Justice ("DOJ") in response to requests properly made by Plaintiffs.

***

4.  Given the questions surrounding the legality of the practice [of "targeted killing"] under both U.S. and international law, notable legal scholars, human rights activists, and current and former government officials [i.e., Democrats and Republicans] have called for the government to disclose its legal analysis justifying the use of targeted lethal force, especially as it applies to American citizens.

***

11.  Both before and after the death of [Anwar] al-Awlaki [who was blown up in Yemen], NYT duly filed FOIA requests seeking memoranda that detail the legal analysis behind [blowing people up]. To date, DOJ has refused to release any such memoranda or any segregable portions, claiming them to be properly classified and privileged and in respect to certain memoranda has declined to say whether they in fact exist.

***

35.  On September 30, 2011, the Washington Post described a [DOJ] "secret memorandum authorizing the legal targeting" of al-Awlaki, an American citizen accused of coordinating the Al-Qaeda operations in the Arabian peninsula. The article said that officials refused to disclose the exact legal analysis" such as "how they considered any Fifth Amendment right to due process." It also quoted a "former senior intelligence official" as saying the C.I.A. "would not have killed an American without such a written opinion."

***

44.  On October 7, 2011, Mr. Savage submitted a FOIA request [to] DOJ OLC seeking a copy of "all Office of Legal Counsel memorandums analyzing the circumstances under which it would be lawful for United States armed forces or intelligence community assets to target for killing a United States citizen who is deemed to be a terrorist."

45.  By letter dated October 27, 2011, [DOJ] denied Mr. Savage's request.

Summary:

• The government dropped a bomb on a U.S. citizen,
• who, though a total dick and probably a criminal, may have been engaged only in propaganda,
• which, though despicable, is generally protected by the First Amendment;
• it did so without a trial or even an indictment (that we know of),
• based at least in part on evidence it says it has but won't show anyone,
• and on a legal argument it has apparently made but won't show anyone,
• and the very existence of which it will not confirm or deny;
• although don't worry, because the C.I.A. would never kill an American without having somebody do a memo first;
• and this is the "most transparent administration ever";
• currently run by a Nobel Peace Prize winner.

Merry Christmas!

The Great Totem Pole Caper

This happened last year, but there's no limitations period on totem-pole stories as far as I'm concerned.

In August 2010, the Rotary Club of West Seattle celebrated the return of a beloved totem pole to Rotary Viewpoint Park. Luckily, this story gets more interesting than that sentence suggests, mainly because of where the totem pole had been and how it got there. 

The pole left the park in November 2009, when a city art commissioner hired a crane company to remove the 18-foot, 500-pound pole and haul it away for restoration. They loaded it onto a truck, but that truck got stuck in the mud and a tow truck had to be called. The tow-truck owner called police to direct traffic while he freed the other truck. And so off the totem pole went, with the help of the crane-company owner, the tow-truck owner and several police officers, none of whom bothered to check whether the "art commissioner" actually had permission to take the thing in the first place.

A few days later, a Rotarian who happened to be driving by saw this:

That's the worst totem pole I've ever . . . hey, wait a minute

No, said the Parks Department, we're not working on any totem poles, why do you ask?

Local residents who saw the operation helped police identify the truck companies. The crane company's owner was able to convince police he was innocent even though he had helped with the theft, a story the police were probably more willing to buy because they had helped, too. He identified his customer, but that man denied any involvement. Feel free to check out my property, he told police.

According to the police report, an officer who visited the property "did not see any sign of a totem pole." But unfortunately for the suspect, he had violated the first rule of Totem Pole Stealing Club. "[A neighbor] told me," the officer wrote, "that [the suspect] has been talking about getting a totem pole for his property for several months." Police were then able to locate some contractors who said they had helped the man move a totem pole into his garage, and that was enough for a warrant. Eventually, the man confessed to taking the pole and said they could find it "at a Senior Center in Oregon, on a boat trailer."

Oregon police found the stolen totem pole at that location. In fact, they found two:

It turned out that the suspect, 69-year-old Charles Jenks, had been dreaming of getting a totem pole for a new home he was building. (He apparently was going to put it inside a two-story stairwell, not just stick it in the lawn where everybody could see it. Because that would be crazy.) I guess these aren't available on eBay, so he decided to steal one in broad daylight. Why he stole two - the second one from outside a grocery store in Oregon - was never explained.

The Rotary Club decided not to press charges after Jenks agreed to pay almost $21,000 in restitution. There has been some controversy as to why Jenks was allowed to avoid prosecution for stealing just because he could afford to pay the costs. I'm speculating here, but maybe the city of Seattle did not want to dredge up its own sordid history of totem-pole theft.

In 1899, some "leading Seattle citizens" visiting Alaska came back with a very fine totem pole, which they set up in Pioneer Square. There were conflicting stories as to how they came by this item. According to one of the leading citizens, the Indians were happy to get rid of it:

Arriving at the point designated, we found an abandoned Indian village with probably 100 or more totem poles . . . . [T]here were two decrepit Indians which [sic] we finally succeeded in interviewing, who made no objection to our taking the pole to Seattle. In fact, the Indians were as pleased at our taking it as were the people of Seattle to receive this outstanding example of workmanship of the Northern Indians.

On the other hand, the ship's third mate testified that

the Indians were all away fishing, except for one who stayed in his house and looked scared to death. We picked out the best looking totem pole. . . . I took a couple of sailors ashore and we chopped it down - just like you'd chop down a tree.

This was also the Indians' version. A grand jury in Alaska later indicted some of the Seattle citizens, but those charges too were dropped. A Seattle newspaper eventually paid the tribe $500 for the totem pole, which stood in Pioneer Square until 1938.

I don't know where that one is now, but I have an idea where to start looking.

Things You Can't Do in a Royal Park

According to the UK's Royal Parks and Other Open Spaces Regulations, 1997 No. 1639, Reg. 4, it is forbidden to do (among other things) any of the following without written permission in Hyde Park or other land to which said regulations apply:

• interfere with a fungus
• go on a shrubbery
• use a metal detector
• climb a statue
• interfere with a tree
• offer anything for sale
• exhibit any written or pictorial matter
• play a musical instrument, or cause another to do so
• discharge a firearm
• project any missile
• erect a tent
• put an animal in a boat
• do laundry
• organize a parade
• worry a bird, or
• touch a pelican.

Obtaining prior written permission would seem to be especially important before engaging in any pelican touching or fungal interference. Please conduct yourselves accordingly.