Lowering the Bar

The February Bar Exam Approaches!

For some reason I'm thinking about zombies today (tip: do not play super-realistic zombie video game just before bed if hoping to avoid bizarre zombie-related dreams) and so when I wrote the title above I immediately thought of zombies.  The guy (or former guy) in the foreground of this picture seems like a fair representation of the bar exam: (1) he's wearing a suit and tie, which like passing the bar exam has a weak correlation to legal ability; and (2) both are horribly frightening but also easily survivable, at least if you are willing to just run away.  Why more people don't do this is a persistent puzzler in zombie movies and in society in general.

For those of you in California who aren't willing to run, can't run, or, more likely, have already paid the registration fee and figure you might as well see what happens, here are some free bar exam outlines drafted for the February 2008 exam, thoughtfully posted by the author of the Bar Advisor blog.  My other motive in providing this particular link is that the author also thoughtfully posted a link to Lowering the Bar for purposes of treating bar-related stress, and that is much appreciated.

Note: I am not the "Kevin" who identifies himself in the comments there as having failed the bar exam a few years ago.  Not that there's anything wrong with that, although there is something wrong with not telling your employer you didn't pass and asking for a promotion instead.

Good luck to everyone now in the final throes of preparing for the February bar exam, as well as those currently being menaced by zombies.

Link: Bar Advisor

Police Dog: The Meat-Smuggler's Nemesis

In August, police in Framingham, Massachusetts, responded to a report that a gas station had been robbed.  They brought along a tracking dog and released it in the direction in which witnesses said the robber had gone.  Just a few minutes later, the dog had cornered a man, who the human officers then frisked.  Turned out, though, that this was not the guy who committed the armed robbery, but rather a guy who had just shoplifted $68 worth of meat from a supermarket by stuffing it down his pants.  He apparently admitted the theft, possibly encouraged by Sparky's hungry look.

"The dog must have smelled a tasty dinner in his pants," said a police spokesman, taking the opportunity to utter a sentence he will never be able to use again in his lifetime.

This is an almost perfect example of being in the wrong place at the wrong time.  What are the odds that a police dog will be set on somebody else's trail just as you happen to shuffle out of a nearby supermarket having stolen several pounds of meat?  It seems almost cosmically unfair.

A Fourth Amendment discussion seems difficult to avoid here, maybe almost as difficult as trying to run away from a police dog with your pants full of meat.  The police were looking for someone else, happened across this guy instead, searched him based solely on advice they got from a dog, and arrested him after finding contraband in the course of that search.  Should that evidence be suppressed?  Explain your answer, preferably using a No. 2 pencil, interpretive jazz dance or Native American sand painting.  You have no minutes; you may begin; time's up.

I think the answer is no, but for a reason that surprised me: this wouldn't even be considered a "search" or "seizure" and so the Fourth Amendment doesn't apply.  I would have said the answer to that question was pretty obvious -- if a police dog has become very interested in your pants, you've basically been "seized."  But the U.S. Supreme Court has held that using a drug-sniffing dog to smell someone's luggage or the trunk of his car does not even constitute a "search," let alone a "seizure," the rationale being that the dog would only react to evidence of illegal activity and there is no reasonable expectation of privacy for that.  Justice Souter suggested in dissent that this only makes sense if you are willing to assume that police dogs are always (or usually) right, but the majority was fine with that.  (Tip: it doesn't work if a human officer does the sniffing.)  And there appear to be many cases finding that a dog sniff of an individual (in or out of a car) is similarly not a "search."  So, at least assuming McGruff did not physically seize the suspect (see below), then I guess the meat is admissible.

 

Look, Bobby - the man has Fourth Amendment rights now!

Even if that weren't the law, this might have been okay as a limited search and seizure under Terry v. Ohio.  Under the circumstances, the fact that the dog had cornered somebody probably is enough to provide the necessary "reasonable, articulable suspicion of criminal activity" to justify a frisk.  Of course, the Terry rationale is that the search is justified in order to ensure the officer's safety by checking for weapons.  Since this frisk found steak instead, this might be a tough call.

Of course, if you are sitting there thinking that the dude admitted stealing the meat in the very first paragraph, so that this is all a big waste of time, congratulations.  You get either full credit or no points at all - I haven't decided which.

Link: MetroWest Daily News (Framingham, Mass.)
Link: Fourth Amendment blog by John Wesley Hall

Attorney Loses Round One in Battle for First Amendment Right to Wear Hats

Q: Does the First Amendment to the United States Constitution guarantee an attorney the right to wear whatever he or she wants to wear in court?

A: No.

This is the lesson of Bank v. Katz, a case decided last Thursday by Judge Nicholas Garaufis of the U.S. District Court for the Eastern District of New York.  Attorney Todd Bank showed up in a state court in Queens in March 2008 wearing jeans and a baseball cap bearing the words "Operation Desert Storm."  The presiding judge, Judge Anne Katz, told Bank he was not dressed appropriately for court, and the court clerk told him to remove his hat.  Bank responded in the logical way, by suing both of them for allegedly violating his constitutional rights.

First Amendment rights are not absolute, Judge Garaufis pointed out in his ruling, and a courtroom is not a public forum.  Restrictions on speech in a nonpublic forum need only be "reasonable" and "viewpoint neutral."  The judge noted that Bank appeared to concede that the headwear restriction was a standard court rule and did not claim Judge Katz had been discriminating against his hat-borne message.  ("Plaintiff does not allege, for example, that a Queens judge prohibited only Yankees hats from her courtroom, or that hats with pro-war messages were permitted while anti-war hats were not.")  Judge Garaufis found that the courtroom-attire requirement was reasonable because of the governmental interest in having litigants and attorneys show sufficient respect for the court that they not show up in "clothes they might have worn to a baseball game."

The judge also rejected Bank's argument that he had an enforceable due-process "liberty interest" in his choice of courtroom attire.  Courts have recognized a liberty interest in one's personal appearance, but in the courtroom context, Judge Garaufis held, "Plaintiff's desire to make a fashion statement is far from a fundamental right."

In a footnote, the court noted that the result might be different if an individual claimed a right to wear a hat (or, more likely, a skullcap or turban) for religious reasons, because that would implicate a fundamental right.  I am very much looking forward to a Yankees fan trying to take advantage of this loophole in a future case.

Link: Reuters via Yahoo! News

Man Who Attempted Suicide Sues Hospital That Saved Him

If someone injures you while saving your life, can you sue them?

Well, of course you can sue them, since you're not dead, but can you win?

I guess so.  Earlier this month, Michael Dexter was paid 90,000 pounds as part of a settlement that ended a six-year legal battle with a hospital in East Lancashire, United Kingdom.  Dexter claimed that the hospital had given him an intravenous overdose of neutralizing drugs, causing severe damage to his arm.

Turns out that was his second overdose of the day -- he had attempted suicide that morning by washing down about 100 pills with some rum & Coke.  So the hospital's drugs did have the benefit of neutralizing his, and thereby saving his life.

Result: lawsuit.  Dexter alleged he had been given four times the dose that should have been used, and that as a result he has lost about 75 percent of the use of his right arm.  Had he died, of course, he would have lost exactly 100 percent of the use of both arms (among other things), but still.  "I know they saved my life," Dexter said, "but if you went in with a heart attack you wouldn't expect to leave with a limb you can't use."

Maybe not.  And in a lot of jurisdictions, a negligent party is still liable even if he or she was being a "good Samaritan," so maybe you've got a point there.  Seems like it should make a difference, though, that you wouldn't have had the heart attack on purpose.

Link: Daily Telegraph

Panic, Heroism Reportedly on Display During California Bar Exam

A source who was taking the California Bar Exam on July 29, when the session was presented in Sensurround, reports scenes of both abject fear and valiant heroism among the attorneys-to-be at the Ontario test site, arguably closest to the epicenter of Tuesday's quake.

As was widely reported, a magnitude-5.4 quake hit with just minutes to go in the morning session of the first day of the test.  A 5.4, as these things go, is a moderately strong quake but the risk of injury or damage is pretty low.  The 1994 Northridge quake was a 6.7, and the 1906 quake here in San Francisco was a 7.8, just to put the 5.4 in some perspective.  It's probably fair to add a point or two to your score, though, if you happen to be taking a bar exam at the time.

Maybe another point is in order if it is your first earthquake, and possibly yet another if, as was the case on Tuesday, the fact pattern of one of the test questions involved terrorism.  Frightening questions closely followed by a natural disaster may be enough to prove that bar examiners are in league with the Devil (for those who were still skeptical).  If they are, the diabolical plan was successful.

"One of my friends was in tears during the exam because she was so scared," reported the source.  "It was a pretty jarring event for people who were already under time constraints and enormous pressure," he said, noting that he had some difficulty continuing to type in a shaking room with shaking hands.  Yes, as you might have expected, many continued to type during an earthquake even as others were fleeing the room or taking shelter.  "A lot of people," the source reported, "did do the half-and-half method of ducking under the tables WITH their laptops so they could keep on typing."  You know, that kind of determination, plus 1900 billables a year, is just the sort of thing that might get you made partner someday.

Robert Hawley, deputy director of the State Bar, said he had received no reports of "health or safety issues" following the earthquake.  Still, he admitted, "any interruption weighs heavily upon the takers," which I think is probably true, especially if the taker thinks he or she might die because of it.  Hawley said that the Bar was gathering data on the magnitude of the disruption (as noted above, it was a 5.4 + 2), and that this data, along with reports from "experts in psychometrics," would be analyzed to see if the earthquake may have had any impact on test scores.

So, when Satan unveils whatever demonically low pass rate he has chosen this time around (February 2008: 39.6%), maybe those closest to the epicenter will have grounds for appeal.  If necessary.

Link: National Law Journal (July 30)
Link: CA Bar Pass Rate Summary (PDF)

If There Is An Earthquake While You Are Taking the Bar Exam, Do You Get Extra Time?

If you think the answer to that might be yes, you are probably going to fail anyway.

Some of those enjoying Day One of the California bar exam, which is otherwise a walk in the park, were rudely interrupted today by an earthquake with a preliminary magnitude of 5.4.  (The preliminary preliminary magnitude was 5.8, but it was quickly downgraded to a less preliminary 5.4.)  The large blue square on the USGS map (left) shows the general location of the quake, east of Los Angeles and about seven miles south of Pomona.  A closer look at that map will reveal many smaller squares clustered in that area, showing the dozens of aftershocks that residents and visitors continued to enjoy today.

As you can see on the map to the right (again, if you click to zoom), this is not too far at all from Ontario and Anaheim, two of the bar exam testing centers.  The quake did not cause major structural damage, apparently, but was strong enough to be felt as far away as San Diego.

So it was certainly strong enough to be felt by test-takers in the area who were finishing up their first-day essays.  And finish they did.  Reportedly, at least at one location those taking the test who became concerned about the earthquake were yelled at by proctors, who told them "this happens all the time in California" (which is not quite true), and said that everyone should continue with the test.

The small blue aftershock square to the southwest on the USGS map above is probably the effect of hundreds of bar-exam takers in Anaheim freaking out, briefly jumping up, and then sitting back down again in unison after hearing they would get no extra time.

Link: Los Angeles Times

Q: Does a Criminal Defendant Forfeit His Right to Counsel by Punching Said Counsel in the Face?

A: Yes.

Or, as one report put it, "[t]he Minnesota Court of Appeals . . . [has ruled] that a defendant gives up his right to a court-appointed lawyer when he beats up the one he has."

In State of Minnesota v. Lehman, an opinion filed on May 13, the court resolved this question, which it described as one of first impression in the state.  William Lehman was on trial for multiple felony assault counts, and a public defender was appointed to represent him.  After the prosecution rested, Lehman himself rose to ask for a mistrial (denied) and that a different attorney be appointed to represent him (also denied).  Lehman then moved for reconsideration by "wrapping his arm around [counsel's] neck and punching him repeatedly in the face."

Proceedings were temporarily adjourned.  When court reconvened, the jury was instructed to disregard the facts that defense counsel was no longer present, Lehman was now dressed in "jail clothes," and that his arms and legs were shackled.

After he was convicted, Lehman claimed on appeal that the trial court had erred by allowing his attorney to withdraw and to put him in jail clothes and shackle him.  Primary question presented: "Did the district court abuse its discretion by determining  . . . that appellant had forfeited his right to counsel by attacking his attorney in front of the jury?"  The court cited numerous decisions outside Minnesota for the proposition that "the right to counsel can be summarily forfeited for extremely serious misconduct similar to that which occurred here," namely beating counsel up, which seems to be done every now and then in a deliberate attempt to force a mistrial.

Maybe it will avert a future beating or two if I mention here that this strategy doesn't work.

The appellate court also ruled that it was not an abuse of discretion to use leg restraints alone for the remainder of the trial, for the sensible reason that leg restraints "would not control appellant's hands, which appellant had earlier used to attack his lawyer."

Link: St. Paul Pioneer Press
Link: Minnesota v. Lehman, No. A06-1912 (St. Louis County, Minn., filed May 13, 2008)

Court of Appeal Upholds Right to Private Drunkenness

In a recent case, the California Court of Appeal definitively resolved a legal question that has long puzzled scholars:

If a man is drunk inside a woodshed, and leaves the woodshed only at the request of police, can he be guilty of being found drunk in a public place?

Answer: no.

A 17-year-old in Plumas County, California, a county with three stoplights and an unknown number of woodsheds, was charged with "disorderly conduct" after a deputy found him inside a woodshed near a house where a party had been reported.  By the time the deputy arrived, the house was dark but "noises" could allegedly be heard from within a nearby woodshed.  (The nature of the "noises" were not specified further.)

The deputy's flashlight revealed a minor who, as he admitted, was drunk.  "Deputy Beatley asked the minor to come out of the shed," and then out to the street, and, fatefully, "the minor complied."  Deputy Beatley then cited the minor for disorderly conduct.

At a hearing, the trial court ruled that the minor could be charged under the statute, which prohibits being "found in any public place under the influence of intoxicating liquor," if the intoxicatee is "unable to exercise care for his own safety . . . ."  Cal. Penal Code sec. 647(f).  After some discussion of whether the minor had been found in a public place, the court found that he had because he "apparently came out willingly.  There was no evidence that he had to be dragged out of the shed."  Appeal followed.

I.  The Woodshed Was Not a "Public Place"

Based on existing precedent:

• Public places: barber shops, the hallways of an apartment building, and front yards that anyone can just walk into.
• A not-public place: a front yard that was fenced in, gated, and into which the defendant "released three dogs."
• Possible gray areas: front yards containing fewer than three dogs; woodsheds.

The court found insufficient evidence that the woodshed in question was a public place.  In a sweeping decision, it held that "a woodshed needs no barrier to establish that it is not open to common or general use," thus affirming the common-law doctrine that a man's home's woodshed is his castle's outbuilding.

II.  The Minor's Compliance With the Request to Come Out of the Woodshed Changes Nothing

Second, the court rejected the People's argument that, even if the woodshed was private, the minor had voluntarily followed the deputy out to the public street.  The court could have dispensed with this, it seems to me, by just following the statutory language.  Here, the deputy "found" the minor in what the court had just ruled was not a public place, so unless he blacked out while the kid was walking to the street, he could not have "found" him again.  Hey, it says "found," not "observed."

But the court went further, apparently wanting to clarify that, under the law, it is irrelevant whether a defendant comes into the public place of his own volition or not.  To draw such a distinction, the court pointed out, would only encourage intoxicated persons to defy authority, something the court seems to believe is otherwise uncommon.  Judgment reversed.

If you want to go up to Plumas County to see the famous woodshed for yourself, now is a great time, according to Plumas County.  In "Plumas Buzz," the blog of the Plumas County Visitors Bureau, the authors note that conditions for outdoor tourism are wonderful, despite the fact that new statistics suggest the population density may actually be almost 9 persons per square mile, not 8 as previously believed.  Eighty percent of Plumas is national forest, of course, so solitude and the beautiful scenery is the real attraction.

Don't expect nightlife:  "March 13, 2008:  Can you believe it? Two accordions at two different events for this weekend!  Can it get any better than that?"

Link: In re R.K. (Cal. App. 3d Dist. Mar. 25, 2008).
Link: Plumas County official website

Plaintiff Who Visited "Pissed Off Pete's" Alleges Beating by Pete

[Lowering the] Bar Exam Question One: if you go to a bar called "Pissed Off Pete's" and then get beaten up by Pete himself, do you have a claim?

This is not a hypothetical.  Here's the case report from last week:

Patricia [Plaintiff] v. Pissed Off Pete's et al.
1/16/2008 CGC-08-471147 (San Francisco Superior Court)

Complaint for personal injury and assault. Defendant [Pete] became enraged during an argument at his bar, defendant Pissed Off Pete's. He dragged the plaintiff to the door, pushed her to the street, threw her against the wall, up into the air, and then slammed her to the cement ground, causing bruises all over her body and intense pain.

Answer: I don't think assumption of the risk is a defense to an intentional tort, but even if it were the sign only warns (accurately, based on the comments found at the link below) that Pete will be "pissed off."  Plaintiff would not necessarily have anticipated being physically assaulted.

Give yourself full credit for any answer you gave unless you are representing one of the parties to this case.  If so, no points.

Link: Yelp.com (info about bar) (case report from Courthouse News Service)