Lowering the Bar

Do NOT Clench Your Buttocks in Deming, New Mexico

Why not, you ask? Because it may be interpreted as probable cause to conduct an anal-cavity search.

Or six.

According to this KOB News report, police in Deming, New Mexico, and some doctors they convinced to help them, conducted no fewer than six manual searches of David Eckert's anus in the hours after they stopped him on January 2. (His crime: allegedly failing to come to a complete stop at a stop sign.) The officers asked Eckert to get out of the car. The lawsuit alleges that after he did so, the officers noted that he "appeared to be clenching his buttocks," and interpreted this as "probable cause to suspect that Eckert was hiding narcotics in his anal cavity."

 

By the way, Eckert was leaving a Walmart parking lot, not crossing an international border. (Luna County itself is on the border, but Deming is 45 minutes away.) Not that alleged buttocks-clenching plus border proximity should serve as probable cause, but still.

In a somewhat surprising move, the officers actually sought a search warrant before proceeding any further. Astonishingly, some judge granted it. And that is when the real nightmare began.

The officers evidently did not want to perform the search themselves, which is certainly understandable (although it strikes me that it might be a good rule to require the decisionmaker to do the search). So they took Eckert to the emergency room. The report doesn't say which one, but it was probably at Mimbres Memorial Hospital, just because a town of 14,000 probably doesn't have that many hospitals. I wanted to be sure to mention Mimbres, if it's the right place, because doctors there refused to perform this butt-clenching-prompted anal-cavity search, saying it was "unethical."

Rather than taking the hint, these officers decided to look for less ethical doctors. They carted Eckert over to the Gila Regional Medical Center (which I also wanted to mention). Now, in general, GRMC may be a very capable and generally ethical institution. This is just one incident. Certainly its website says all the right things. I noticed, though, that it also bears the slogan: "We believe that we are human beings, caring for other human beings." It is a little concerning that they haven't yet been able to confirm they are human—I mean, they are doctors—and what follows suggests they are uncertain about the second part, too. Because according to KOB's summary of the medical records Eckert released to it, here's what they did to an unconsenting patient/victim (WARNING: unpleasant even to read):

1. Eckert's abdominal area was x-rayed; no narcotics were found.

2. Doctors then performed an exam of Eckert's anus with their fingers; no narcotics were found.

3. Doctors performed a second exam of Eckert's anus with their fingers; no narcotics were found.

4. Doctors penetrated Eckert's anus to insert an enema.  Eckert was forced to defecate in front of doctors and police officers.  Eckert watched as doctors searched his stool.  No narcotics were found.

5. Doctors penetrated Eckert's anus to insert an enema a second time.  Eckert was forced to defecate in front of doctors and police officers.  Eckert watched as doctors searched his stool.  No narcotics were found.

6. Doctors penetrated Eckert's anus to insert an enema a third time.  Eckert was forced to defecate in front of doctors and police officers.  Eckert watched as doctors searched his stool.  No narcotics were found.

7. Doctors then x-rayed Eckert again; no narcotics were found.

8. Doctors prepared Eckert for surgery, sedated him, and then performed a colonoscopy where a scope with a camera was inserted into Eckert's anus, rectum, colon, and large intestines.  No narcotics were found.

Not much else happening on a Wednesday night, I guess. Otherwise, you'd think they'd have called it off after maybe the first four or five medical procedures produced no evidence? But some human being (or was it?) actually considered the matter at that point and said something like, "okay, the first two enemas didn't turn up anything. Let's try one more. And then maybe a colonoscopy, but then we really have to call it a night." What did they say afterward? "Sorry"?

I guess he should be thankful they didn't dissect him. I mean, they had a warrant.

But about that warrant.... It was issued in Luna County. But GRMC is in Silver City, New Mexico. Which is in Grant County. In which whoever issued this warrant has no authority. Even if they had not taken their victim across the county line, the warrant expired at 10 p.m. The records show that the colonoscopy started three hours later. Horrifying enough that they were still going hours and hours later, but they were also doing so illegally, even assuming there had been probable cause—which, remember, they derived from the clenching of buttocks by someone who rolled through a stop sign.

"This is like something out of a science-fiction film," Eckert's lawyer said. "Anal probing by government officials and public employees." Well, they believe they are human beings, at least. 

You might think this story can't get any worse, but you know what? You're wrong.

According to the report, the medical center billed him for this.

Now, why was Eckert clenching his buttocks to begin with (if he really was)? I don't know. Nor do I care. It's supposed to be a free country, isn't it? We may not agree with another person's decision to clench, but we should defend to the death that person's right to do so.

Or something like that.

Captain Justice Responds to Government's Motion to Ban the Word "Government"

This excellent pleading has been making the rounds (I saw it here) over the last couple of days, but I couldn't find a signed copy and so I haven't posted it yet because of this ridiculous issue I have with verifying information. I was able to contact the author, who told me that yes, he had actually filed it. I asked him if he'd send me a copy of the pleading as it was filed, but either he has more important things to do (like maybe actually try cases) or has had enough publicity at this point. (He seemed a little shell-shocked, actually.) But this has been covered by a sufficient number of actual news outlets at this point that it seems pretty likely to be legit, so here it is.

It was prompted by the prosecution's one-page and citation-free motion in limine asking the court to order defendant's counsel "not to refer to the Assistant District Attorney General as 'the Government' during trial." The prosecution had come to believe, apparently, that this reference was being "used in a derogatory way" and wished to put a stop to that. It provided a helpful list of references that it said it would consider acceptable, including references to the AG herself as "General R______," something that for whatever reason I particularly loathe, whether or not it's technically correct.

The defense attorney—whose last name is in fact "Justice"—responded this way on the merits:

The State of Tennessee offers precisely zero legal authority for its rather nitpicky position, and the defense can find none. The Plaintiff has failed to carry its burden on this motion. Moreover, the Plaintiff’s proposed ban on speech would violate the First Amendment.

That was probably enough to win (and he did win). But he drove the point home with the kind of thing that you probably only get away with if it's this good:

Should this Court disagree, and feel inclined to let the parties basically pick their own designations and ban words, then the defense has a few additional suggestions.... First, the Defendant no longer wants to be called "the Defendant." This rather archaic term of art obviously has a fairly negative connotation.... At trial, Mr. P. hereby demands to be addressed only by his full name, preceded by the title "Mister."

Alternatively, he may be called simply "the Citizen Accused." This latter title sounds more respectable than the criminal "Defendant." The designation "That innocent man" would also be acceptable.

Moreover, defense counsel does not wish to be referred to as a "lawyer," or a "defense attorney." Those terms are substantially more prejudicial than probative. See Tenn. R. Evid. 403. Rather, counsel for the Citizen Accused should be referred to primarily as the "Defender of the Innocent." This title seems particularly appropriate, because every Citizen Accused is presumed innocent.

Alternatively, counsel would also accept the designation "Guardian of the Realm."

Further, the Citizen Accused humbly requests an appropriate military title for his own representative, to match that of the opposing counsel. Whenever addressed by name, the name "Captain Justice" will be appropriate. While less impressive than "General," still, the more humble term seems suitable. After all, the Captain represents only a Citizen Accused, whereas the General represents an entire State.

Along these same lines, even the term "defense" does not sound very likeable. The whole idea of being defensive comes across to most people as suspicious. So to prevent the jury from being unfairly misled by this ancient English terminology, the opposition to the Plaintiff hereby names itself "the Resistance."

* * *

WHEREFORE, Captain Justice, Guardian of the Realm and Leader of the Resistance, primarily asks that the Court deny the State’s motion, as lacking legal basis. Alternatively, the Citizen Accused moves for an order in limine modifying the speech code as aforementioned, and requiring any other euphemisms and feel-good terms as the Court finds appropriate.

 You don't get many chances to do this kind of thing, so it is nice to see someone hit it out of the park.

If They Violate Your Privacy in the Woods, Do You Make a Sound?

Not if you don't know about it, according to Rep. Mike Rogers, who, incredibly, is the chair of the House Intelligence Committee.

Mike Masnick writes at techdirt about an amazing exchange between Rogers and Prof. Stephen Vladeck, a law professor at American University. This took place at the end of a hearing yesterday on NSA surveillance. These are rarely going to be enlightening, especially when they are public and broadcast on C-SPAN. Everybody just wants to make their points for the camera. We did learn something from this one, though, namely that Rogers really does not give a crap about your privacy and cares less, if possible, about logic.

In what was intended as his wrap-up question, Rogers asked each of the three panelists for a "quick yes or no answer" as to whether they thought "the government should have the ability to try to find a nexus between a foreign connection and a business record in the United States that would indicate the identity of someone who may be working with a terrorist organization." Well, I think you don't have to be a lawyer to understand that this is not a "yes-or-no" question.

If you say "yes," you have just said that you have no objections to giving the government the power to access business records whenever it likes, as long as it claims to be looking for terrorists. If you say "no," you have just said that the government should have no access to business records for that purpose, no matter what the situation. Lawyers get criticized for saying "it depends" a lot, but you know what? That is the only intelligent and honest answer to some questions. Like this one.

Two of the three panelists didn't give it.

The first one actually went with "absolutely," which the congressman found an acceptable form of "yes." The second said "I believe so," which is a way of saying "yes" that gives you a way to backtrack later and claim you didn't understand the question, but still a yes. Those are both bullshit answers to a bullshit question. Then it was the turn of Vladeck, who Masnick described as "the only panelist the entire day who expressed concerns about what the NSA was doing." And he did it again. He did agree, but with qualifications: "Unless there's an easier way to do it, as long as there's enough protections, sure." You know, that whole Fourth Amendment concept.

Rogers is apparently so tired of hearing about this "Fourth Amendment" that he was not even willing to accept an allusion to it. Instead he semi-attacked Vladeck with a remark about somebody who wished we had one-armed economists because then they couldn't keep saying "on the other hand."

"Maybe what we need is a one-armed [law] professor," Rogers smirked, oh ho ha ha, ha ha ho, yes. Ha.

Well, it's like the death penalty, Vladeck responded, preemptively noting that he didn't mean this as a substantive analogy between death and privacy violations. Many people support it in theory but aren't willing to support it if the process used to impose it is seriously flawed. Some would recognize this as another allusion, this time to what was once called "due process," but Rogers is not one of those people. Instead he just criticized Vladeck for making the substantive analogy that Vladeck HAD JUST SAID HE WASN'T MAKING. Wow that's irritating. Vladeck stood his ground:

VLADECK: It's impossible to separate the validity of the program from the process concerns that have been raised by members of Congress and members of the public. Until we have a better sense on [sic] those process concerns, I think it's a bit unfair to enter the question in the abstract.

REP. ROGERS: You think we should have the ability to do it or not?

VLADECK: I think the way we do it matters.

REP. ROGERS: Well, clearly it matters.

"Clearly it matters"? You just asked a question to which it is totally irrelevant. And I think you are about to confirm that you either don't think it matters or don't understand what it is:

REP. ROGERS: I would argue the fact that we haven't had any complaints come forward with any specificity arguing that their privacy has been violated [note: this is untrue], clearly indicates, in ten years, clearly indicates that something must be doing right. Somebody must be doing something exactly right.

VLADECK: But who would be complaining? [Given that one might not know one's privacy is being violated, especially if there is no process to speak of.]

REP. ROGERS: Somebody whose privacy was violated. You can't have your privacy violated if you don't know your privacy is violated. 

VLADECK: I disagree with that. If a tree falls in the forest, it makes a noise whether you're there to [hear] it or not. 

REP. JOWLFLAP: Well that's a new interesting standard in the law. 

Emphasis added. So the fact that no one has complained about their privacy being violated means that no one's privacy is being violated, and if they aren't complaining because they don't know it's being violated then they have nothing to complain about, do they?

Again, this guy is in charge of an "intelligence committee."

For the more satirical take that I might have gone with if he hadn't already done it, see Ken White's post, "Rep. Mike Rogers Angrily Defends Bathroom Spycam," at Popehat.

And this is to prove it actually happened:

 

Associates Not Pleased With Memo on "Presentation Tips for Women"

Late last week Above the Law posted a memo leaked from inside Clifford Chance (non-lawyers: that's a law firm, not a guy named "Clifford Chance") that they described as one of the most sexist memos they'd ever seen.

At first glance, the memo doesn't seem to bear that out. It's just a list of presentation tips for younger associates, and a lot of the tips are pretty good ones. For example, there is no limit to the number of times people should be told NOT TO READ THEIR POWERPOINT SLIDES. DO NOT READ YOUR POWERPOINT SLIDES. NOT A LOT OF PEOPLE KNOW THIS BUT HELL IS ACTUALLY NOTHING MORE THAN AN ETERNITY OF BEING FORCED TO SIT IN UNCOMFORTABLE CHAIRS WHILE SATAN READS AN ENDLESS SERIES OF UNINTERESTING POWERPOINT SLIDES.

So that's a pretty good tip.

And nothing sexist about it. Most of the tips are similarly neutral.

But then you get to the one about remembering not to "giggle." Well, some men do giggle—wait. Make sure the audience can't see up your skirt? Hm. Does Clifford Chance have any locations in Scotland? Doesn't look that way, but maybe—oh. Don't show "cleavage," "make sure you can stand in your heels," and try to sound like "Lauren Bacall, not Marilyn Monroe."

Okay then.

A broader issue with the memo is that, reportedly, it was presented by the firm's "Women's Committee" (which may or may not be comprised only of women) to female associates, and only to female associates, and the memo is said to have been entitled "Presentation Tips for Women." (The memo itself is untitled but this was likely the title of the presentation during which it was, perhaps unwisely, distributed.) This casts some of the facially neutral tips involved—such as, "practice hard words"—in a somewhat different light.

Again, it might be a good idea for everybody to "practice hard words." Words is hard! Especially for people like law firm graduates who are thrust out into the world with a mere 19 years of education. But if you are only asking your female associates to "practice hard words," well, that's pretty bad.

[Update: of course I meant "law school graduates." See how hard words is?]

Clifford Chance provided a statement to ATL in response to the memo story, saying in part that "[t]he original presentation and associated tips represented a personal perspective, shared with a group of colleagues.... [T]here is no Clifford Chance template on how people should present. The offense caused by a small percentage of the suggestions in the tip sheet was entirely unintentional." That's almost certainly true, but doesn't address the issue of unintentional sexism, which is a thing, you know.

Here's something else unintentional: the search results I got when I Googled "Clifford Chance" just now (though the image results were generated by a plugin):

Did you mean to search for "cleavage"?

Google's more sophisticated algorithm does not associate the firm with cleavage this strongly, it appears. Maybe someone or something at Google actually read the memo and thereby knew that "low plunge" tops are not approved presentation attire at the firm. "Wear a suit, not your party outfit," it instructs.

Of Course the Dress Code Does Not Apply to the Savior

Partners can usually get away with violating a dress code, as long as they aren't being too outrageous. This is especially true of senior partners, and if the senior partner in question is also the Savior, well, He could wear whatever He wants whenever He wants to:

The Senior Partner
© Nathan Greene

That is one truth depicted in this painting by artist Nathan Greene, entitled "The Senior Partner." A note on this website (where you can also buy copies of this and other works by Mr. Greene) confirms that Jesus is in fact the titular "Senior Partner," although we could probably have guessed that—it's not like anybody would make Him go through a job interview or depict Him doing such.

The message is simply that for Christians, Jesus is involved in all facets of life. An admirable message and one protected by the First Amendment. The website does go on to suggest that "[d]isplaying this piece prominently in your business will convey your Christian principles and values to your business associates, customers, and staff." It certainly would do that, and depending on the business, it might also get you sued or at least serve as evidence if you get sued for religious discrimination. Replace the Savior's image with one of Vishnu or Muhammad or whoever and imagine this hanging in your managing partner's office, or in all the partners' offices, and you might have a better sense of the problem. 

Don't actually replace it with an image of Muhammad, please. That is just a thought experiment.

Yes, the dress-code exception would also extend to hairstyles, although in our experience that hasn't been much of a problem. We did just "encourage" a new associate to lose the ponytail, but he could have kept it if he'd really wanted to. But again, if the Senior Partner wishes to show up in a mullet, or whatever, that would be totally His prerogative.

Officer Who Pepper-Sprayed UC Davis Students Is Awarded $38,000

Here's a question for you: Of those involved in the incident below— 

(Photo: Wayne Tilcock/Davis Enterprise)

 —who would you say should receive more money as a result?

1. the student being sprayed in the face
2. the police officer spraying her
3. all the students should get equal amounts
4. no one should be paid anything
5. I am not going to think about this because I think I know the answer and it would confirm that the universe makes no sense so la la la la la I'm not listening.

The answer is, of course, number 5, because the correct answer is actually number 2.

The Atlantic (among others) reports that John Pike, the casual chemical warrior shown above, will be getting $38,000 in workers' compensation payments based on his claim that he was injured on the job. The task that caused his injury was spraying harmless students in the face, and the injury he claims to have suffered is (no, not a sprained finger) depression and anxiety resulting from the public outrage directed at him because he did that.

La la la la la.

There is no question that depression, anxiety, and other mental conditions can be legitimate disabilities. One issue with this kind of claim in general, though, is that it can be harder to detect fraudulent claims because the injuries are not obvious (by contrast, you might be able to, for example, get a guy on film running a race in high heels at the same time he's claiming disability).

Here, according to the Davis Enterprise, an agreed-upon expert testified that Pike is "moderately" disabled due to "continuing and significant internal and external stress with respect to ... the significant emotional upheavals that have occurred" in his life since the incident. Again, though, the "incident" was that one time where he sprayed seated protesters in the face with pepper spray, which other humans then saw as a reason to hate him (he is said to have received almost 30,000 angry messages) and which also got him fired. Does his conduct not matter?

It may not.

I don't practice employment law, I'm just looking at a book by somebody who does. And workers' comp is its own specialized area, in which, again, I do not specialize. (If you do, let me know what you think.) Generally speaking, though: workers' comp is an insurance plan into which employers pay, with the tradeoff being that in most cases workers' comp is the exclusive remedy for an on-the-job injury. No lawsuits. Because workers don't have another remedy and the payouts are limited (and defined by law), the rules tend to be interpreted very much in their favor. And so you end up with cases where an employee gets paid despite some very odd facts.

For example, in one case a death benefit was paid despite an objection that the employee was traveling with "a woman, not his wife but registered as such," and one of them started a fire by careless smoking. The fact that the hotel room was being used "for an immoral and unlawful purpose" (the court also called it "combining his own business with that of his employer") did not change the fact that the trip itself was made in the course of employment, and so workers' comp applied.

Okay, that's immoral business-combining conduct, but what about criminal conduct? Surely a worker can't get paid if he was injured as a result of a crime he committed! Well, actually....

Employee misconduct, whether negligent, willful, or even criminal, does not necessarily preclude recovery under workers' compensation law. [Generally], such misconduct will bar recovery only when it constitutes a deviation from the scope of employment.... A distinction must be made between an unauthorized departure from the course of employment [no workers' comp] and the performance of [an authorized] duty in an unauthorized manner [yes worker's comp]. The latter conduct, while it may constitute serious and willful misconduct by the employee ... does not take the employee outside the course of his employment.

(Emphasis added, cites left out.) Otherwise, the California Supreme Court has said, "[a]ny employer could argue that reckless, intentional, or criminal conduct is not part of any job description and therefore not within the scope of employment. This argument, however, if permitted to succeed, would totally undermine the no-fault foundation of workers' compensation law." That is, he's getting paid because of the somewhat odd no-fault nature of the workers' comp scheme, not because he was somehow wronged.

The employee's conduct isn't irrelevant. Typically, we are probably talking about something like reckless driving, which—even if it results in manslaughter—would have no effect if the driving was in the course of employment. The law does say that if an employee commits "serious and willful misconduct," any compensation is cut in half (but they still get paid). Payment can be denied only if the employee was injured while committing a felony and has been convicted of that felony. Pike hasn't been charged with a crime, to my knowledge, although maybe he should have been; and it's possible that $38,000 is only half of what he would otherwise have gotten. In any event, the (mostly) no-fault workers' comp scheme is the reason he is getting money at all.

Here are some additional facts that are remarkable.

• Pike was on paid leave during the university's investigation, which for some reason took eight months.

• The investigation found not only that Pike didn't need to use the spray, but that he used a spray not sanctioned by the department and he used it from an unsafe distance. Seems serious and willful to me.

• Pike was being paid—please be seated—at least $119,000 per year (another report says $121,680) plus benefits, to be a campus policeman in Davis, California.

• Though Pike was fired, he will still get his pension.

• The students he sprayed sued UC Davis for civil-rights violations. The university settled with them for $1 million (plus an apology). Under the settlement, the plaintiffs will each receive, at most, $30,000.

Yes, the man who assaulted the plaintiffs will be getting $8,000 more than any plaintiff will get, as a result of his claim that he was acting within the course of his employment by assaulting them and became emotionally disabled as a result of being accused of assaulting them; he is also allowed to keep a pension that is likely based to some degree on the $119,000 per year the state was paying him to be the kind of officer who pepper-sprays non-violent protesters in the face.

See answer number 5, supra.

South Dakota v. Fifteen Impounded Cats

In this case—now also appearing on the Comical Case Names page—the Supreme Court of South Dakota grappled with legal issues arising from an officer's decision to impound fifteen cats he found roaming around a woman's car. South Dakota v. Fifteen Impounded Cats, 785 N.W.2d 272 (S.D. 2010). In a split decision, the justices rejected the woman's arguments that the evidence was insufficient to support the cat seizure and that said seizure violated her constitutional rights.

The cats were not actually parties to the case. As you may know, this kind of case name derives from the practice of naming the item or animal as the "defendant" in certain cases that involve the seizure or ownership of property. See, e.g., Fortner v. ATF Agents Dog 1, Cat 2, and Horse 3, 2011 WL 11489 (D. Colo. Jan. 4, 2011); United States v. 2,507 Live Canary Winged Parakeets, 689 F. Supp. 1106 (S.D. Fla. 1988); United States v. Article Consisting of 50,000 Cardboard Boxes More or Less, Each Containing One Pair of Clacker Balls, 413 F. Supp. 1281 (D. Wisc. 1976). This is an odd but comical fiction that I will continue to milk as long as they keep doing it. See also, e.g., Nebraska v. One 1970 2-Door Sedan Rambler (Gremlin), 215 N.W.2d 849 (Neb. 1974).

In the summer of 2009, a police officer in Pierre, South Dakota, responded to a call about a parked car occupied by one woman and a significant but then-unknown number of cats. When he arrived, the woman started to back her car up, nearly backing into the patrol car. "At that point, the officer observed that the view out of the back window of the other car was obstructed by numerous cats climbing on the seat backs and rear dashboard inside the vehicle."

The woman said she had been living in her car "for several days" and that there were fifteen cats in there with her. Because the car was also "crammed full of personal belongings," the cats were roaming about the car at a height that, according to the officer, interfered with the driver's visibility. The fifteen (15) cats had apparently been provided with one (1) litter box and the officer noted a "strong pet odor emanating from the vehicle."

The officer "impounded the cats." That's all the opinion says about that, unfortunately. Did he call the kennel to come pick them up, or could one have seen, at some point, a police officer in Pierre, South Dakota, driving around with fifteen cats crawling all over him? At any rate, after a hearing, a court found that "exigent circumstances" justified the seizure and ordered the cats transferred to the humane society.

Their driver appealed.

That appeal was heard by the highest court of the state, which is not quite as odd as it seems because a state with a small population (South Dakota's is about 840,000) doesn't need multiple tiers of appellate courts. As in South Dakota, they tend to have just local circuit courts with appeals going directly to the state supreme court. So that's why the supreme court was hearing a cat-seizure case.

The woman's main argument—to be honest, her only decent argument—was that her due process rights were violated because state law requires a warrant before seizing an animal unless the animal is suffering or there are "other exigent circumstances." Here, setting aside the "unsanitary aspects of the situation," the majority found it posed a risk to others because the fifteen cats were blocking the car's windows, and that was enough to justify the seizure. (Two of these three justices would also have held it justified because of the potential risk to the cats themselves.)

But the two dissenting justices weren't buying it. They argued that (1) if the seizure was based on concern for the animals, there was no evidence they were "suffering" to the extent contemplated by the law; and (2) if it was based on concern for the public, there was really no "emergency" situation that justified grabbing the cats without a warrant. This second argument seems wrong, though. For one thing, this happened at night. Should the officer have impounded the car and held the whole kaboodle overnight until he could ask for a warrant in the morning? That doesn't make any sense. In any event, by a 3-2 vote, the court affirmed and South Dakota's cat population officially rose by 15.

The South Dakota Supreme Court decided 105 cases in 2010. This was one of them.

Police Called to Investigate Breakroom Jell-O Theft

The Smoking Gun reported on October 11 that a Pennsylvania man fed up with people stealing his snacks out of the refrigerator at work decided to report the matter to the authorities. According to the police report obtained by TSG, the man reported that an "unknown person" had absconded with his strawberry Jell-O snack:

Courtesy of The Smoking Gun

According to the report, "this incident remains under investigation," although it probably doesn't.

Hands off

Still, office snack theft is, after all, a crime. Under Pennsylvania law, for example, this incident would be classified as "theft by unlawful taking or disposition" of "movable property," assuming the Jell-O was taken "with intent to deprive [the victim] thereof," which it almost certainly was. 18 Pa. Cons. Stat. § 3921(a). Theft of an item valued at less than $50 (according to the market value at the time and place of the crime) is a third-degree misdemeanor (§ 3903(b)(2)), unless it is committed during a manmade, natural or "war-caused" disaster (§3903(a)(1)). Since "war-caused disaster" is defined as "any condition following an attack upon the United States" including but not limited to "overt paramilitary actions" or "sabotage," and there is no expiration date for such a "condition," the same offense would appear to be a second-degree felony.

The thief is probably lucky that we finally stood down from Threat Level Orange, or else this Jello-O sabotage might win him a free trip to Gitmo. 

The incident occured at a Wakefern Food Corporation warehouse in Pennsylvania. Wakefern is said to be the largest retailer-owned supermarket co-op in the United States, incorporating mainly ShopRite and PriceRite stores in the eastern part of the country. Its headquarters are in New Jersey. Perhaps ironically, Wakefern was named as one of the "Best Places to Work in New Jersey" by JBIZ Magazine, which presumably means either that the HQ is free of the "Lord of the Flies" ethos that seems to prevail in Pennsylvania, or that there is a massive coverup going on.

The company's website contains not a word about the incident (despite the national-security implications), although it does claim to foster "an environment in which all associates are valued, respected, and encouraged to reach their full potential" and to exemplify the company's "core values of integrity, innovation and teamwork." Of course, it's easy to say you are committed to integrity and teamwork, but deeds speak louder than words.

I would anticipate a press release or at least a statement by Wakefern's CEO about this disturbing incident in the near future.

Official State Crap: Colorado

• Official state flower: The white and lavender columbine.

Actually, the identity of the Colorado state flower is not entirely clear. Section 24-80-905 does say it's "the white and lavender columbine," but that turns out to be a description, not a name. The following statute specifically refers to the species Aquilegia caerulea, the common name of which is the "Colorado Blue Columbine." But since the columbine flower is often not blue or white or lavender, I would say that the actual Colorado state flower is who cares.

• Official state song: "Where the Columbines Grow," words and music by A.J. Fynn. Any goddamn type of columbine, or all of them, I don't know.

• Possible co-official state song: "Rocky Mountain High" by John Denver. This was declared to be an official state song by joint resolution in 2007, but the statutes themselves were not amended to reflect this.

• Official state folk dance: square dancing (yet again). But Colorado defines this to include "squares, rounds, clogging, contra, line, the Virginia reel, and heritage dances," so it's like an umbrella category or something.

• Official state bird: the lark bunting (calamospiza melancorys stejneger).

• Official state pets: the dog (canis lupus familiaris) and the cat (felis catus), but only those that "are adopted from Colorado animal shelters and rescues." Official-state-pet status confers no special benefits, but this is a nice thing to do anyway.

• Official state reptile: the western painted turtle (chrysemys picta bellii).

• Official state amphibian: the western tiger salamander (ambysotma mavortium).

• Official state fish: the greenback cutthroat trout (oncorhynchus clarki stomias).

• Official state insect: the Colorado hairstreak (hypaurotis crysalus), which, although it sounds like something that might be totally freaky and cool, is in fact a butterfly.

• Official state animal: the rocky mountain bighorn sheep (ovis canadensis). Of course the bird, dog, cat, turtle, salamander, trout, and butterfly are also animals, but presumably of second-tier status.

• Official state gemstone: aquamarine.

• Official state mineral: rhodochrosite.

• Official state rock: Yule marble.

• Official state illustrious person: Dr. Florence Rena Sabin.

What, not John Elway? Who is this person? Let's see: Born in Colorado in 1871, first woman to graduate from Johns Hopkins University School of Medicine, first woman to become a full professor there (making her also the first woman to become a full professor at any U.S. medical college), first woman to be elected to the National Academy of Sciences, and head of the Department of Cellular Studies at the Rockefeller Institute; known for her work on blood diseases and tuberculosis; later came out of retirement in her 70s to campaign (successfully) for health care reform in Colorado and chair the Denver Health Department.

Never won a Super Bowl, but okay, fair enough.

• Official state ghost town: any area designated as such by the state historical society (as long as the owner, if any, doesn't object to the declaration). Note: Once the designation is made, it is a crime to damage said ghost town in any way.

Colo. Rev. Stat. §§ 24-80-905 through 24-80-1202.

Assorted Stupidity #56

Got behind on posts this week because on Thursday I gave a presentation in Santa Monica on legal-ethics issues that arise in connection with electronic discovery. (Okay, I was there as moderator/jokester and the panelists were the ones with knowledge, but I was physically present.) And although you might think that with a topic like "legal-ethics issues that arise in connection with electronic discovery," the jokes basically write themselves, turns out this is not so. Somehow—partly due to funny panelists and a couple of decent hecklers—it all turned out fine.

Now back to the important matters of our day.

• Bob Filner, the former San Diego mayor who once complained that the city had not trained him not to harass women (see "Mayor Complains That City Didn't Train Him Not to Harass Women" (Aug. 8, 2013)), and who later resigned, has pleaded guilty to three criminal charges. Though one is a felony, under the plea deal he will avoid any jail time. He did agree not to run for office again, which seems like it should be unnecessary but: Marion Berry. 

• Updating a more recent story, some Maryland state troopers are further upset with state AG Doug Gansler, who they have accused of being a horrible backseat driver, because he called their leader a "henchman" of his political opponents. That's bad but better than being called a "lackey" or "flunky," at least according to the results of an alcohol-fueled debate I once had about the hierarchy among minions. Henchmen rank more highly and so bear more responsibility for dirty deeds, or so we concluded. I think.

• A Peruvian magistrate has ordered a stop to the annual cat races (Carrera de gatos) that are a customary part of the Curruñao festival in the small town of San Luis, says The Guardian. Actually, I guess it was not so much the races themselves as the fact that the townsfolk eat the losers. Either way, congratulations to el Colegio de Abogados de Lima for its successful defense of los gatos.

• Meanwhile in Iran, the ayatollahs are debating whether to execute a human being for the second time. A man convicted of meth possession was hanged earlier this month, but a morgue worker noticed the corpse was still breathing. He was immediately taken to a hospital, where authorities were said to be "waiting for him to make a full recovery before they hang him again." But this week, the ayatollah whose fatwa had been cited to justify the re-execution said he had "another view" on the case. He didn't say exactly what it was, but presumably it involves not hanging him again. 

• TIP: you are not entitled to immunity from DUI laws just because you happen to be participating in a stock-car race. Such is the lesson taught by this incident last weekend, in which a driver who had been forced out of a race not only went back in, he intentionally crashed into another car. Witnesses said they had seen him drinking between races, and officers smelled alcohol on his breath, leading to the driver's arrest.

• RELATED TIP: you are also not entitled to immunity from negligence or other claims that may result from a crash under these circumstances. Crashes do happen, but drinking will take you right out of the assumption-of-risk-defense category. This is also true, although less obvious, if you were participating in a demolition derby at the time.