Lowering the Bar

GOOD IDEA: Test Police Response Time by Walking Around With an RPG

This person was not intended to look like, as one 911 caller put it, a guy "wearing a dress with a torpedo on his shoulder," but even people who did finish high school had some concerns when they saw him on a street corner in Phoenix.

Photo from Huffington Post clip (via Newsy)

The incident involved not one but two geniuses. The brains of the operation was a 39-year-old man who said that after the theater shooting in Colorado, he wanted to find out how long it would take police in his area to respond to a similar report. "I wanted to run a little test here in Phoenix, Arizona," he said while narrating a video of the event that he posted on YouTube. "I want to find out how safe I really am, and I want to know the response time of the Phoenix police department."

That response time, reportedly: anywhere from three to 15 minutes. The geniuses' video shows an officer arriving at a home at 15:01, but they had fled the intersection by that time so it's not clear how long it took police—or the helicopter or the SWAT team—to get there.

The guy in the dress with a torpedo on his shoulder—actually a guy wrapped in a sheet with a remarkably realistic (but fake) rocket-propelled-grenade launcher—was the man's 16-year-old nephew. That is, rather than run his own test, the guy talked his nephew into dressing like a terrorist to see how quickly police would come get him. Given how jumpy everybody is these days, and the highly realistic RPG, they are probably lucky that one or both of them didn't get shot. On the other hand, the kid was jumping around like an idiot (if real terrorists do that, I haven't seen the footage), and most if not all 911 callers seem to have understood this was a prank, so people did not overreact. The officer who arrived at the man's home was said to have remained calm, and left (after taking their names) when the man told him they were "just filming a movie."

Still, on Monday (almost two months after the incident) police did arrest the man. They charged him with endangerment, which seems potentially valid, and "creating a false impression of a terrorist act," which to me is more questionable. If what someone did endangered others, that's a crime, so why do we need to pile on with more "anti-terror" laws that at least potentially infringe on free speech? The man was also charged with contributing to the delinquency of a minor (I guess so) and "misconduct involving simulated explosives" (same objection).

This is of course reminiscent of the 2006 case in which a 49-year-old lawyer from Maine dressed up as Osama bin Laden, carrying a gun and some dynamite (both fake), and stood next to I-295 near Portland in what he later claimed was a protest involving local tax rules. See "Lawyer's bin Laden Halloween Costume Not Popular," Lowering the Bar (Nov. 1, 2006). (Bonus points: Fake bin Laden had been the Democratic candidate for governor in 1998.)

Insane Clown Posse Sues FBI

The following statement appears today on the Insane Clown Posse's official website:

Hertz Schram PC … on behalf of Insane Clown Posse and Psychopathic Records, has filed suit against the FBI in the U.S. District Court for the Eastern District of Michigan, alleging the FBI's violation of the Freedom of Information Act ("FOIA") for its failure to produce any documentary evidence in support of the FBI’s classification of the groups' fan base, the Juggalos, as a gang in the 2011 National Gang Threat Assessment: Emerging Trends.

Well, that was really their lawyers' statement. ICP itself had this to say:

The idea of calling the Juggalos and Juggalettes a "gang" is straight up bullshit. [Indeed it is. See "Legal Action Announced at Gathering of the Juggalos," Lowering the Bar (Aug. 14, 2012).] We are not a gang! We are a family! We come together for our luv of the Insane Clown Posse, Psychopathic Records, and our Juggalo pride. Can we take a fuckin’ second to note that Jimmy Buffet[t]’s Parrot Heads, Lady Gaga’s Little Monsters, Justin Bieber’s Beliebers, the Grateful Dead’s DeadHeads and many more haven’t been labeled as a gang? [Also a valid point, suggesting the FBI's action was arbitrary and capricious.]

Really, this is the first time in the history of rock-n-roll that any music fans have been labeled as a "gang" and that’s probably because it makes no damn sense! But no matter how fuckin' cracked out it is there have still been a lot of Ninjas who have been gettin' shit for their Insane Clown Posse apparel, Hatchetman tattoos, and for showing support to The Ha[t]chet. [It is totally fuckin' cracked out; see link above.] Juggalos are fans of music – not hardened, organized gang members! And that is why the Insane Clown Posse, Psychopathic Records, and their legal team are fighting for YOU!

According to this report, the legal team also expects to file suits on behalf of individual Juggalos who believe they have been mistreated by law enforcement. Juggalos who think they may have a claim should fill out the questionnaire at Juggalos Fight Back.

No RUI Charge for Florida Drunkard

As I mentioned in this followup to the Kentucky case last week, whether or not it is illegal to ride a horse while under the influence depends on state law, and there are other things the rider could be charged with anyway. Both of which are demonstrated by this case in Florida, in which a 29-year-old man who "urinated on a lawn before riding off on a horse" has apparently not been charged with RUI.

His drunk-riding problem almost solved itself, because either he or the horse then chose to ride down the middle of some train tracks that were soon to be occupied by a southbound train. You'd think at least the horse would have been smart enough to get off the tracks, but police said they had to stop the train to ensure the pair would not be run over. (Not sure why they didn't just go get him off the tracks; seems easier than stopping a train.)

According to the report, the man eventually fell off the horse and ran into the woods, where he was later "found by police dogs," a phrase that sounds a whole lot more peaceful than it probably was.

He was charged with disorderly conduct, resisting arrest without violence, "fleeing and eluding" (although it seems like he fled, but didn't elude), and cruelty to animals. I noticed there was no DUI-type charge, and this could be because under Florida law, DUI only applies to the driver of a "vehicle," and "vehicle" is defined to include "[e]very device, in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices used exclusively upon stationary rails or tracks." I personally think an animal is not a "device," but case law may have held otherwise (note implied disclaimer).

On the other hand, the same chapter has a section titled "Applicability to animals and animal-drawn vehicles," which sounds promising but ends up being confusing:

Every person driving an animal-drawn vehicle upon a roadway is subject to the provisions of this chapter applicable to the driver of a vehicle, except those provisions of this chapter which by their nature can have no application. The provisions of this chapter applicable to pedestrians … apply to any person riding or leading an animal upon a roadway or the shoulder thereof.

Obviously, an animal is not an "animal-drawn vehicle." (Unless one animal is pulling another, maybe, but now you're just being ridiculous.) So despite the title, the actual words of the statute support the interpretation that the vehicular provisions don't apply to animals being ridden. (This Clearwater DUI attorney agrees but says the jury is still out in Florida.)  

Interestingly, Florida also now has a law permitting someone with a valid driver's license to "operate an autonomous vehicle in autonomous mode." (California passed a similar law yesterday, so these are apparently on their way whether you like it or not.) Setting aside for now why you should need a driver's license to operate something that operates itself, if an animal were included in the definition of "vehicle," you might be able to argue that you were just "operating it in autonomous mode" while you were fast asleep on its back.

That probably wouldn't help you with the RUI charge, but I'd still enjoy hearing you make the argument.

Justin Bieber Wins First Round Against "Joustin' Beaver"

Well, this exists:

Needless to say, this drew a cease-and-desist letter from Bieber's lawyers, and the company selling the app responded with a declaratory judgment action against Bieber in Florida, where it's located. It portrayed the app as a "parody of the commercial success of the Defendant and any celebrity," as follows:

The parody app portrays a beaver floating on a log down a river. The beaver presents with bangs, a lance, and a purple sweater. The beaver knocks 'Phot-Hogs' that are attempting to take his photograph into the river with his lance. The beaver also signs 'Otter-graphs.' The beaver also must dodge the 'whirlpool of success,' which will lead beaver out of control, while navigating the river."

Well, that's horrible on many levels, but the company's first problem is jurisdiction. Bieber lives in California, and while as the company alleged he does perform in Florida and have various business contacts there, none of that has anything to do with the controversy over the app. And for that reason, as the Hollywood Reporter noted yesterday, the federal judge who had been saddled with this case tossed it on jurisdictional grounds.

The case was dismissed without prejudice, so the company could refile somewhere else, or (more likely) Bieber could file anywhere there is jurisdiction over the company. Since it appears there will probably be a round two, let's wait until then to consider the First Amendment issues raised here.

I may argue at that point that "otter-graphs" is so bad that it is the equivalent of "fighting words" not entitled to protection, but let's see what the lawsuit looks like first.

Ecce las Velas (Behold the Candles)

Following up on yesterday's post about the lady who painted over Jesus and now wants royalties—according to a Reddit post, these are currently on sale in Los Angeles:

Looks like Ms. Jiménez (or the artist's heirs, or both) may need a lawyer here in the United States to handle merchandising issues. Please contact them directly if interested.

Government Report on Reports About Reports Recommends Another Report

I'm pleased to note that the 2012 Ig Nobel Prize for Literature went to the U.S. Government General Accountability Office for the report it published in May entitled, "Actions Needed to Evaluate the Impact of Efforts to Estimate Costs of Reports and Studies" (PDF). While I encourage you to read the report for yourself, or at least the summary, so you can confirm it's a real thing, let me try to explain what the report was about.

The Department of Defense is legally required to create a very large number of reports, and doing so is expensive. DOD has apparently been trying to estimate just how much it has been spending on this, which is itself a big task, and GAO (which is sort of the government's accounting firm) conducted a review of that effort. As it reported in May, GAO concluded that DOD's approach to the estimation project has not been fully consistent with relevant accounting standards, but the report ultimately recommended not that particular changes be made but rather that the Secretary of Defense himself "take steps to evaluate [and report on] DOD's effort to estimate [the] costs" of the required reporting.

In other words, as the Ig Nobel judges recognized, GAO had thereby issued "a report about reports about reports" that recommended the preparation of another report.

I guess I should point out that in saying this, I'm actually just reporting this report of the Ig Nobel Committee's report on GAO's report recommending a report on DOD's report reports. I'm also going to ask you to report my report to all your Twitter and Facebook followers, despite the significant risk that this may cause the universe to explode. A universe in which the above exists may not be worth saving anyway.

A few of the other Ig Nobel Prizes awarded this year:

• Psychology: Anita Eerland, Rolf Zwaan, Tulio Guadalupe, "Leaning to the Left Makes the Eiffel Tower Seem Smaller: Posture-Modulated Estimation," Psychological Science, vol. 22 no.12 at 1511-14 (Dec. 2011).

• Fluid Dynamics: Hans C. Mayer and Rouslan Krechetnikov, "Walking With Coffee: Why Does It Spill?" Physical Review, vol. 85 (2012).

• Anatomy: Frans de Waal and Jennifer Pokorny, "Faces and Behinds: Chimpanzee Sex Perception," Advanced Science Letters, vol. 1 at 99-103 (2008).

• Medicine: Emmanuel Ben-Soussan, et al., "Colonic Gas Explosion During Therapeutic Colonoscopy with Electrocautery," World Journal of Gastroenterology, vol. 13, no. 40 at 5295-98 (Oct. 2007).

Because that last one includes advice on how to prevent patients from exploding during a colonoscopy, it seems potentially relevant to those of you who do malpractice defense. The others are more distantly related to the law, although to be honest I'm still working on a theory of relevance for the chimp study.

Ecce Abogado (Behold the Lawyer)

You may recall the incident last month in which an elderly parishioner of the Sanctuary of Mercy church near Zaragosa, Spain, decided on her own to try to restore a deteriorating fresco of Jesus, with unfortunate results:

According to one BBC correspondent, the original work, entitled Ecce Homo (Latin for "behold the man") now "resembles a crayon sketch of a very hairy monkey in an ill-fitting tunic." Accordingly, some are now calling the revised work Ecce Mono (Latin/Spanish for "behold the monkey"). Officials said they thought the woman had good intentions, and there's no reason to doubt that. No artistic talent whatsoever, but good intentions.

But her intention now is apparently to get a cut of the tourist dollars her botchery has been generating for the church, because she has lawyered up. 

The fresco was previously only of local interest, but Internet coverage of the fresco fiasco has increased traffic dramatically. It's not clear exactly how many people have made the pilgrimage to see Ecce Mono, but budget airline Ryanair has added some number of additional flights to meet the demand, and the church has reportedly taken in "thousands of euros" at four euros a pop. Having noticed this, the new "artist," Cecilia Jiménez wants some of that cash. Jiménez has hired a lawyer and is demanding a share of the profits being derived from her destruction of the original painting. According to her lawyer, she plans to donate her cut to charity and only wants to make sure the church "follows the law" with regard to the money. Those may very well be her plans, but I think we've seen how her plans turn out.

The claim seems to be based on copyright, and I know something about that but not enough to know whether you can claim royalties if your spin on the original work involved destroying the original work.

Good Reason to Kill #27: Gangnam Style

"Gangnam Style dance-off escalates into gang shootout" was the headline that made my day today.

According to INN (via the Guardian), two gangs were dining in the same restaurant in Bangkok when younger members of both groups "danced provocatively at each other in the manner of top hit Gangnam Style." This escalated into an argument and later into a gunfight in which at least 50 bullets were fired but, amazingly, no one was injured.

I guess it's hard to aim when you're riding an invisible horse.

Further Analysis Regarding RUI (Riding Under the Influence)

Readers have raised some interesting questions about the RUI allegations in Kentucky, described in this earlier post.

Mark T. asks, "I wonder if the Kentucky definition of 'vehicle' ["all agencies for the transportation of persons or property over or upon the public highways"] includes shoes? Now that I think about it, what about feet?"

Excellent questions, as always.

I think the answer here is that neither shoes nor feet would be included. Again, the word used (but not defined) in the statute is "agencies." These days we generally use that to mean "government agencies," but here it's used in a more antiquated sense—the closest match in the OED, at least, is "a being or thing that acts to produce a particular result." Because "thing" is included, "action" here can't mean free will, but I think it would have to mean that the thing is at least capable of moving independently if set in motion by someone acting upon it. And since we are talking about transportation, throwing a shoe wouldn't count. So in my view footwear would not be "vehicles" under Kentucky law because they aren't independently mobile.

Roller blades might be "vehicles," though, and if there is or were any sort of motorized footwear, then we would be in a real gray area.

As for feet, it is true that they, or at least the muscles of the foot and leg, are "things that act to produce" movement. But here I think the problem is that "agency" and "vehicle" both imply something that is separate from the person or thing that is moved. Because feet are normally attached to the rest of a person, we can therefore assume the legislature did not intend to include them in the definition of "vehicle."

It appears that Kentucky courts have not yet struggled with this problem, most likely because anyone driving shoes under the influence would just be charged with "public drunkenness."

Catherine C. writes, "I’m not sure that Kentucky has entirely precluded your 'horse is not a vehicle' [argument because] horses are often expressly prohibited from entering 'public highways'....

The argument here is that if a horse cannot legally be ridden on a public highway, then it should not be considered an "agency for the transportation of something on the public highway" within the meaning of the statute. That's not bad, but I think it improperly reads the word "legal" into the definition. There are probably lots of "vehicles" that aren't street-legal, but if you get drunk and take one out on the highway anyway it would seem difficult to argue that you could not be guilty of DUI.

Having said that, a similar argument has worked before.

As I mentioned in 2007, a judge in New Jersey ruled that a drunken Zamboni driver could not be convicted of drunk driving because a Zamboni ice machine is not a "motor vehicle" under that state's DWI statute. Obviously, a Zamboni has a motor, but the judge apparently reasoned it could not be a "vehicle" under New Jersey law because it is not a "device ... by which a person or property is or may be transported upon a highway...." Good for the defendant (who did not leave the rink and so was very unlikely to hurt anyone), but clearly wrong, based on the case the year before in which two rink employees in Idaho not only took their Zambonis out on the street, they took them to a Burger King drive-through.

Getting back to Kentucky, though, even assuming it is legal to take a horse out on the highway (and I think it is, based on this, although it is expressly illegal to race them there), this argument would not help because the relevant statute provides that one under the influence shall not "operate a vehicle that is not a motor vehicle anywhere in this state." Emphasis added.

Could I have made that particular argument first? Sure, but then I wouldn't have been able to tell my Zamboni stories again.

As always, please don't rely on any of this without getting advice from somebody who actually has a license to practice law in the relevant states (which I do not), and most importantly, don't drink and drive, by any definition. 

Mullet Guilty in Beard Case

Samuel Mullet, leader of what has been variously described as a "sect," a "cult," and an "Amish beard-cutting mob," was convicted on Thursday along with his children and 11 other family members and followers. The Mullet Mob was charged with federal hate crimes and conspiracy for a string of crimes in which they assaulted other Ohio Amish and forcibly cut off their beards.

While there is no evidence that any of the victims was forced to eat his own beard, the crimes were still more heinous than they may sound because of the religious significance of long hair to the Amish.

Waiting in vain for fan mail

Prosecutors argued that Mullet ruled his sect/cult/mob (of 18 families in total) autocratically, and directed his followers to attack members of other Amish communities who opposed him. The group conducted at least five nighttime shaving raids during its "campaign of terror," and prosecutors managed to convince the jury that the religious aspect of the assaults warranted punishing them under the federal hate-crime law.

The defense did not call any witnesses, but rather argued that the defendants had simply been trying to compel the victims to return to a "more conservative Amish lifestyle," and so were motivated by "love and compassion," not hate. That didn't work, maybe in part because witnesses testified that Mullet's view of the proper "Amish lifestyle" includes censoring everyone else's mail, locking people in chicken coops, and offering "marital counseling" to the young married women, a program that involved requiring them to have sex with Sam Mullet. (Hence the neighbors' objections.) Oh, also ordering mob hits on his opponents' beards.

Sentencing has been set for January 24. Defense attorneys said they expected that their male clients would be able to keep their long beards during their (possibly also long) sentences in federal prison, and they probably will.

I have mentioned this case at least once before, partly because of the very unusual facts and partly because of what may have been the worst Commerce Clause argument ever made, namely that the attacks (which took place in Ohio) involved "interstate commerce" because the scissors they used were made in New York. (Prosecutors included that howler in the indictments, and the defendants cited it as part of a failed effort to argue that the federal hate-crime statute is unconstitutional.) Will that argument be part of Mullet's appeal? We can only hope so.