Lowering the Bar

Police Stop of Ax-Wielding Bike Rider Found Justified

In a classic opinion of which I have just learned, the California Court of Appeal ruled in 1998 that police were in fact justified in detaining a man they saw on a bicycle at 3:00 in the morning, primarily because they noticed he was also carrying a large ax at the time.

Not only are the facts good, but the opinion in People v. Foranyic was written by Justice William Bedsworth, who was profiled in the Daily Journal on February 21 and who is the author of the long-running humor column, A Criminal Waste of Space.  Definitely worth reading.

Unsurprisingly, the appeal arose from the denial of a motion to suppress evidence.  Mr. Foranyic was found to be carrying methamphetamine, along with the ax, but he argued that there had been no "suspicious circumstances" justifying the stop under Terry v. Ohio.  "Thus are we called upon," wrote Justice Bedsworth, "to decide whether police may detain a man with an ax riding a bicycle at 3 a.m."

Answer: yes.

We conclude that a reasonable police officer, considering the totality of the circumstances, would reasonably suspect criminal activity might be afoot upon viewing someone on a bicycle, with an ax, at 3 in the morning. Certainly we would expect a diligent officer to investigate such unusual behavior through the relatively unintrusive means of a detention. This is so even though no recent “ax crime” had been reported.

For while Foranyic insists there was nothing about him which suggested criminal activity, he is unable to suggest, and we cannot conceive of, much in the way of noncriminal activity which is accomplished with an ax in the dead of night. The officer could reasonably eliminate firefighting and lumberjacking from the list of possible pursuits Foranyic might have been engaged in.

* * *

[T]here is some activity which is so unusual, so far removed from everyday experience that it cries out for investigation. Such activity will justify a detention even when there is no specific crime to which it seems to relate.  We view this as such conduct. While it is true that there are many legitimate uses for an ax, they are generally daylight activities.

Emphasis in original.  This is quality judicial work that, especially given the fact pattern, fully justifies an addition to Lowering the Bar's Case Law Hall of Fame.

Link: People v. Foranyic, 64 Cal. App. 4th 186 (1998).

Ninth Circuit Applies "Slubby Mass" Rule to Dismiss Appeal

On November 29, the Ninth Circuit again applied the Slubby Mass Rule to reject an appellant's brief and dismiss the appeal.  In case you did not learn this one in law school, this rule provides that any pleading presented to an appellate court that constitutes "a slubby mass of words rather than a true brief" will be rejected.  See, e.g., N/S Corp. v. Liberty Mut. Ins. Co., 127 F.3d 1145, 1146 (9th Cir. 1997).  The Slubby Mass Rule is apparently a corollary to Federal Rule of Appellate Procedure 28, which governs briefing requirements, and the corresponding Ninth Circuit rules.

The court was considering the appellant's brief in Sekiya v. Gates, a disability-discrimination case originally filed in Hawaii.  And that seems to have been about all the court could glean about the case from Sekiya's brief, which:

• made "virtually no legal arguments" (not a good start);
• did not state the applicable standard of review;
• did not include a table of contents;
• did not include a table of authorities -- not that surprising since it
• did not cite any authority;
• did not include accurate citations to the record; and
• didn't explain why Sekiya thought she should win.  (She did say she "disagree[d]" with the lower court's ruling, but the court was looking for something more.)

Each of those violates a specific part of FRAP 28, but the court also invoked the Slubby Mass Rule.  In the N/S Corp. case, in which the Rule was developed, the Ninth Circuit declared that "[i]n order to give fair consideration to those who call upon us for justice, we must insist that parties not clog the system by presenting us with a slubby mass of words rather than a true brief."  N/S Corp., 127 F.3d at 1146 ("the violations are legion); see also id. ("Enough is enough").  The rule was next applied five years later.  See In re O'Brien, 312 F.3d 1135, 1136-37 (9th Cir. 2002) (declaring brief "inadequate" and partly "unintelligible").  In all three cases the court proceeded to address the merits of the case, to the extent it could tell what they were, but ruled against the appellant anyway.  It published its opinions "as a reminder that [crappy legal work] undermine[s] the administration of justice and cannot be tolerated."

The remaining question you may have is "what the hell does 'slubby' mean?"  And you are right to ask.  The only other report I've seen try to answer this question first speculated that "slubby" was a combination of "sloppy" and "stubby," but found through further research that a "slub" is a "lump or thick place in yarn or thread."  The only problem with these definitions is that they make no sense.  Since you read Lowering the Bar, you don't need to bother with that pointless trivia because here you get accurate pointless trivia.  A "slub" is also defined as "thick sludgy mud; mire, ooze," as in:

1610 W. FOLKINGHAM Art of Survey I. x. 24 Ouer-flowing them with Fords or Land-flouds, affording a fatte and slimie substance or slubbe.

Similarly, something that is "slubby" is "muddy; sticky or slippery with mud."  So, a "slubby mass of words" is a thick, muddy, sludgy, fatte, slimie mass of words that is difficult to trudge through and instead should be avoided; for if one is on the "slub . . . his situation is not to be envied."

Link: "Slub, n.," Oxford English Dictionary Online
Link: Sekiya v. Gates, 2007 WL 4198172 (9th Cir. Nov. 29, 2007).