Lowering the Bar

Santa Robs Bank During SantaCon, Blends Into SantaCrowd

Santa has committed numerous crimes over the years, but usually he's either acted alone or conspired with others posing as Santa. It seems doubtful that everyone participating in SantaCon was in on this bank robbery, but you never know.

According to multiple reports (thanks, Mark), on December 13 this ill-bearded Kringle robbed a Wells Fargo bank on Sutter Street in San Francisco, coincidentally about a block from Lowering the Bar headquarters (and yes, that is a coincidence). He told the teller he had a gun, gave her a demand note, got some cash and left the bank.

Ordinarily, he might not have been too hard to track down in his Santa suit, but because that day was SantaCon in San Francisco (you can see one other Santa through the window behind him), this posed a slightly greater challenge. 

Whether or not he actually merged with a crowd of Santas like this one isn't clear, but there were a lot of Santas roaming around downtown SF that day, according to reports (I, again, was not in the area). The scheme seems to have worked at least temporarily; as of today, the culprit has still not been located.

Be on the lookout.

Previously, for example, and in no particular order:

• Bad Santas Attack Swedish Royal Palace
• Gang of Drunken Santas Attack Movie Theater
• Santa Suit
• More Bad Santas 

Police Department Ends Its "Voluntary Search" Program

This program only lasted about five days, so I didn't have time to write about it before it was canceled for being dumb. But it was sufficiently dumb that I'm still going to write about it.

On December 5, Wisconsin Public Radio reported that police in Beloit were "launching a new effort to reduce gun violence in which they're asking city residents to volunteer to have police search their homes for guns." The plan was apparently to ... well, that's basically it.

Thinking about how they might have expected this program to operate is frankly hurting my head a little.

Presumably, people who have committed a crime (with or without a gun) are not going to volunteer to have police come over and just rummage around to see what turns up. Such people often do, surprisingly, consent to searches when they shouldn't, but I doubt they ever go to the trouble of calling to invite the cops over to their house so they can consent.

People who have not committed a crime can be divided into those who own guns and those who do not. In my limited experience, people who own guns generally know where those guns are, and do not need police to come over and help find them. Those who do not own guns do not own guns, and therefore also do not need police to come over and help find guns they don't have. 

I think that just about covers it.

Certainly, the police chief's effort to explain the program made no more sense than the above. He did admit that he didn't expect "the phone to be ringing off the hook" with invitations. What did he expect? Good question. As the report phrased it, he hoped "the program [would] encourage people to think about gun violence as an infectious disease like Ebola, and a home inspection like a vaccine to help build up the city's immune system."

So in this analogy, the town would deliberately inject weakened police officers into people's homes to trigger a response that would make residents better prepared to fend off full-strength police officers that might invade their homes later. Hm. No, that doesn't work. Maybe he meant something like white blood cells. Okay, in this analogy, the police are like giant white blood cells that patrol the city's homes and destroy any Ebola guns they find inside before they can shoot other homes and create more ... oh, &$^# it.

Setting aside the health-care analogy, what exactly did police hope to find if people volunteered? Well, "[Chief] Jacobs says he hopes some searches will result in the discovery of guns [that residents] didn't know were in their own homes," the report states. That's a category of people I guess I didn't anticipate above: people who have guns they don't know about. Well, mercy me, how'd that get there? Grandpa must have brought that back from France! Take it away, officer, before somebody gets the Ebola!

The report continues: "He said there's also a chance they'll find guns linked to crimes." Might that possibly be the main motive, in fact? Yes. "That's really what we're looking for," Chief Jacobs admitted, although he quickly recovered, sort of, and claimed the motive was child protection. "Maybe we'll find a toy gun that's been altered by a youngster in the house—and we know the tragedies that can occur there on occasion." The tragedies that have occurred due to youngsters altering toy guns to shoot real bullets? Or the ones where police shoot youngsters with toy guns because ... oh, &$^# it, again.

Anyway, this lasted maybe five days before officials said it would be canceled. The city manager said the plan wasn't vetted through the city's legal department, making it sound sort of like the plan's fault. But he also semi-defended it. "There was a general perception among many in the public that the police department was going to use this program to perform some kind of general sweeps or unauthorized searches of people's [homes] to confiscate their firearms," he said. "That's not what was intended." No, they were going to ask first. We get that.

Just to repeat some legal advice: do not talk to the police; if you must talk to them, don't consent to anything, no matter how innocent you are; and above all, do not invite armed white blood cells into your home to look for Ebola, or whatever. It's just not likely to go well.

Mom Calls C-SPAN Show to Tell Her Sons to Get Along

Connection to the law: tenuous.  But too good not to mention.

The set-up: two brothers, one Republican, one Democrat, were on C-SPAN's "Washington Journal" show yesterday, talking (and of course arguing) about bipartisanship. This show allows people to call in and ask questions or make comments, and in this clip the brothers get a call from "Joy from North Carolina."

Coincidentally, they are from North Carolina, and their mom's name is "Joy."

Another reminder that (1) there's politics, and then there's real life; and (2) your mom will always be your mom.

Pet Piercing Will Soon Be Illegal in New York

At first I hesitated to post this, out of concern that it might prompt people to run out and get their pets pierced while they still can. But then I decided that anybody who would do that probably has either already done it or is unlikely to be the kind of person who reads legal-humor blogs on a daily basis.

Assembly Bill 739 bans the piercing and/or tattooing of any pet if not done for the pet's benefit. The anti-piercing measure states: "No person shall pierce or cause to have pierced a companion animal unless such piercing provides a medical benefit to the companion animal," and a vet must do the piercing. There is an exception for putting ear tags on rabbits and cavies (guinea pigs, mostly), so it's still okay to perforate them to that extent.

Similarly, the bill provides that "No person shall tattoo or cause to have tattooed a companion animal unless such tattoo: (a) is done in conjunction with a medical procedure for the benefit of the companion animal and to indicate that such medical procedure has been done, ... or (b) is done for the purpose of identification of the companion animal" in connection with an official "animal tattoo identification registry." (In either case the bill specifically bans tattoos "for design purposes," and I invite suggestions as to what the hell that means.)

I know it's illegal to tattoo fish in Oklahoma City, and while I thought I had done a post on that it turns out I'm remembering it from my book. Which, now that I think about it, seems like it would make a great holiday gift for almost anyone who speaks or even just reads English, especially now that it's just $14 on Amazon, but that's neither here nor there.

According to Reuters, the New York bill was introduced in 2011 by Assemblywoman Linda Rosenthal after she heard about someone selling "gothic kittens" on the internet, and it "gained steam" after somebody in Brooklyn posted a picture of his dog's tattoo. Rosenthal obviously takes an interest in animal welfare—she has sponsored many animal-related bills, including the also-recently-enacted anti-tiger-selfie bill. (I knew I recognized her name from somewhere.) I objected to that approach on evolutionary grounds and because I generally think people should be able to do whatever stupid thing they want to themselves (or have a tiger do it). Here it is a tougher call because animals of course cannot consent to have themselves pierced or inked for decorative purposes.

In the Brooklyn case, the tattoo was apparently done while the dog was under anesthesia for a medical procedure, and if that's true, then it's hard to see how the tattoo was "cruel." He wouldn't feel it, and once it's on, the dog's not gonna care. (Look at some of the haircuts people inflict on them.) Maybe it should only be a crime if not done under anesthesia? Piercing seems a little different. Minor ones might not be cruel, but I'm not sure where to draw the line and so I'm okay with discouraging pet piercing in general.

Basically, I guess this falls into the category of legislation that might be a little heavy-handed but isn't something I'm going to lose any sleep over.

Governor Cuomo signed the piercing ban on Monday and it takes effect in April. The big-cat-selfie ban takes effect in February, by the way, and I would encourage any gentlemen still interested in that to go and pose while you still can. Or after that, actually.

What Does a Security-Camera Thief Look Like?

Well, one of them looks like this:

According to the BBC (thanks, Harry), this guy stole two CCTV cameras on Sunday, taking his own mugshot in the process. The image was first posted on the police department's Facebook page, but that appears to be down at the moment so I don't know whether they've found him yet.

I'm generally opposed to having surveillance cameras everywhere, but will admit that they can serve as useful criminal-intelligence tests.

Court Suggests Plaintiff Could Have Grounded His Brain

A statement in a judicial opinion that isn't necessary to the holding is called a dictum (pl. dicta), and isn't technically binding (though it may or may not be persuasive). Here's a good example of that from a 1976 federal case (thanks, Daniel).

In Searight v. New Jersey, the plaintiff alleged that in 1962 the state had "unlawfully injected him in the left eye with a radium electric beam" and that since then someone had been talking to him "on the inside of his brain." Because he did not sue until 1976, the statute of limitations had long since run, and that was the basis of the state's motion to dismiss. The court noted that, although it would normally have given the plaintiff a chance to amend, here it wouldn't because it also lacked jurisdiction. Then it went on (and this is the dicta part): 

The allegations, of course, are of facts which, if they exist, are not yet known to man. Just as Mr. Houdini has so far failed to establish communication from the spirit world …, so the decades of scientific experiments and statistical analysis have failed to establish the existence of "extrasensory perception" (ESP). But, taking the facts as pleaded, and assuming them to be true, they show a case of presumably unlicensed radio communication, a matter which comes within the sole jurisdiction of the [FCC]. And even aside from that, Searight could have blocked the broadcast to the antenna in his brain simply by grounding it. See, for example, Ghirardi, "Modern Radio Servicing", First Edition, p. 572, ff. (Radio & Technical Publishing Co., New York, 1935). Just as delivery trucks for oil and gasoline are "grounded" against the accumulation of charges of static electricity, so on the same principle Searight might have pinned to the back of a trouser leg a short chain of paper clips so that the end would touch the ground and prevent anyone from talking to him inside his brain.

But these interesting aspects need not be decided here.

Therefore, you could cite this case as precedent on limitations or federal jurisdiction, but not for the proposition that a plaintiff has a duty to ground himself. Personally I think the proposition is valid, I'm just saying you need to find another case.

Who Owns Lee Harvey Oswald's Coffin?

At the moment nobody knows, but the New York Times reports that a judge in Fort Worth is stuck deciding this question.

Oswald was exhumed in 1981 to make sure it was really him in there, and after tests confirmed his identity (or did they?) he was reburied in a new coffin. That's because the original pine coffin was not doing too well after almost 20 years in the ground, as you might have expected. So what does one do with a used coffin? Well, if it's Lee Harvey Oswald's coffin and you're the Baumgardner Funeral Home, you apparently stick it in a closet for another 30 years and then put it up for auction. (The Times has a picture of it sitting in an office near two workers' desks, and that must have been a very pleasant day for them.)

This super-neat collectible sold in 2010 for $87,468, but Oswald's brother Robert sued to block the sale. This week a Texas judge heard arguments in the case and is expected to rule later this month.

There is no question that Robert Oswald owned the coffin for some period of time after he bought it in 1963. According to the Times, the funeral home's argument is that he then effectively donated it to Lee Harvey's estate, and that the heirs to said estate, Oswald's widow (who is still alive) and his two daughters, have never claimed it. I have not yet seen the trial briefs—which I am currently trying to get—but presumably the argument is that after 20 or 25 or 30 years or whatever, the heirs should be considered to have abandoned their claim. Why the funeral home would then be entitled to it, unless it's just by virtue of possession, is not yet clear to me.

Why anyone would want it is also not yet clear to me. I suppose it would make quite a conversation piece if you turned it into a coffee table or something like that. The conversation would probably involve the phrase "what is wrong with you?" but still.

More to come on this creeptastic legal drama.

Assorted Stupidity #69

• "I have absolutely no idea why you'd try to direct traffic with frozen peas," said Duty Superintendent Del Jones, of Darwin, in Australia's Northern Territory. "Might've been trying to defrost them, I don't know," she said. Police said anyone interested in directing traffic should apply for a job with the department so they can receive the proper training and equipment.

• How many beer-battered fish would you need to eat to give you a BAC of .062? Assuming you had not been drinking, of course, and this driver assured police he had not. Sure, the story's a good one, but the fact that he had an open container in the truck and nine previous DWI convictions might provide a reason for further investigation.

• Meanwhile in Saskatoon, "workers fled a Tim Horton's restaurant after a patron threw a live snake behind the counter during an argument over sandwich toppings." (Diced onions, specifically.) A police spokesman opined that the workers "were very frightened," which she seems to have deduced from the facts that (1) they fled and (2) "there was quite a lot of screaming going on." Neither the snake nor its owner turned out to be particularly dangerous, but both are in custody.

• On December 10, the Gisborne Herald (NZ) reported that a disqualified driver ("disqualified"=license revoked) gave police his brother's information after being stopped by police. One problem with that plan: his brother is also disqualified. Of course, this is not the first time this clever strategy has failed. See "Tips on Choosing a False Identity," Lowering the Bar (Jan. 11, 2011) (noting two cases in which the person impersonated was also wanted by police). 

• Speaking of impersonations, this week a federal judge in California dismissed the second of two named plaintiffs who were suing Apple for alleged antitrust violations that they claimed harmed iPod owners from 2006 to 2009. Turns out neither of the plaintiffs actually owned an iPod during that time. That's awkward, because a class action is based on the idea that the named plaintiff is actually representative of class members, and if they aren't ... well, no class action. And if their status was ever misrepresented to the court ... bad for other reasons.

• To be fair, the case has only been pending for ten years (it's about iPods, not iPads), and you know how busy lawyers can get. Still, it is generally a good idea to make sure that you actually have a client at some point during the first decade, or at least before the trial starts.

Could Someone Ask Bobby Chen to Call the U.S. Supreme Court?

The Court was planning to hear his case, but now it can't find him.

Of course there are lots of Bobby Chens out there, but the Court is interested in the Bobby Chen who filed this petition for certiorari (via SCOTUSblog) that the Court granted on November 7. This was already unusual, because very few petitions are granted, and the odds are especially long if you wrote the petition yourself and English is not your first language. I don't mean to be too critical of Mr. Chen's work, because (1) I've seen a lot worse, to be honest, and (2) the Court did after all grant the petition he filed. Not many lawyers can say that. I'm really just pointing out that it is unusual for a pro se petition to be granted.

It is even more unusual if, once it's granted, the person who filed it then disappears.

At least, as the Wall Street Journal reports, Chen hasn't responded to the Court at all (there are various plans that need to be made) and his main brief is due on the 22nd. The case will almost certainly be dismissed if he doesn't show up, but for now the Court is still trying to locate him. The WSJ sent someone to the address given in the papers, but whoever answered the door said Bobby moved a long time ago. (I have to wonder whether that guy was actually Bobby himself, not entirely sure why "a supreme court" was trying to find him.)

It would be a drag if the case did not go forward, because then the world would not get an answer to the question presented: "Whether, under Federal Rule of Civil Procedure 4(m), a district court has discretion to extend the time for service of process absent a showing of good cause, as the Second, Third, Fifth, Seventh, Ninth, Tenth, and Eleventh Circuits have held, or whether the district court lacks such discretion, as the Fourth Circuit has held?" Bobby Chen cares about the answer to that question, or at least he used to, because it will determine whether he can continue with his claim that Baltimore destroyed his property without a hearing. Or, as he put it, "after he came back from a trip he found his house was demolishing and all his personal belonging had disappeared."

Grammatical or not, the petition lays out the arguments reasonably well and points out that federal circuit courts disagree about the answer to the question presented (the version above is the Court's, not Mr. Chen's). It also makes public-policy arguments, for example arguing that if deadlines can be extended and vacated without good cause, "all proceeding will become uncertainty."

It also does this in less than ten pages, which just goes to show you don't necessarily need to drone on at length or use lawyer words (like "malfeasance," "to wit" or "redress," for example) to be successful.

Because the Court takes so few cases, Mr. Chen will have no trouble finding a lawyer to help him with this one for free. So if you see him, please ask him to call the Court at 202-479-3000. The sooner the better, really.

Harvard Grad Threatens Legal Action Over $4 Charge

According to Boston.com, Ben Edelman graduated summa cum laude from Harvard College, got a Ph.D. in economics from Harvard University and a law degree from Harvard Law School, and is now an associate professor at Harvard Business School.

And yet he remains an idiot.

Not literally, of course—I'm using "idiot" as shorthand here for someone who is apparently so out of touch with reality or lacking in perspective that he would declare legal war on a local Chinese restaurant that overcharged him by four dollars.

The target of Edelman's wrath admitted that the website prices were out of date and quickly agreed to honor them, update the website, and refund the overcharge. End of problem? Well, of course not. Because as Edelman pointed out, that alone would represent "an exceptionally light sanction" for this heinous misconduct:

Thusly, said customer demanded treble damages, to wit: twelve dollars.

Rather than immediately complying with this mandate, the potential defendant made the mistake(s) of denying any fraudulent intent and wondering whether the matter was really "worth your time." This only irritated our hero, causing him to increase his settlement demand dramatically.

The order had totaled $53.35, so the half-price demand was about twice the former one. Edelman appeared to consider the enhanced sanction more appropriate for one who dares to deny his own malfeasance and/or question an attorney's use of his time.

Edelman told Boston.com that he doesn't do this kind of thing every day, but this seemed like a situation that "call[ed] for legal redress," as he put it. "I mostly look for malfeasance by larger companies," said Edelman, who appears to actually use terms like "malfeasance" in conversation, as if "legal redress" and "to wit" weren't bad enough. Harvard is great, but at least one of its graduates really needs to lighten up.

It is not yet clear whether the "authorities" Edelman alerted will take action, or whether he himself will sue. It is in fact a potential violation to advertise something at one price and then sell it at another. He's got that right. What he doesn't have is an understanding that every human dispute need not be settled via the legal system.

"I count myself fortunate to live in a state that deems [this heinous] practice unlawful," Edelman told the miscreant. Whether the state's other inhabitants count themselves fortunate that he lives there is another question.

---

Update: On Wednesday Edelman apologized for how he handled this interaction, and it wasn't a passive-voice "mistakes were made" or the "I'm sorry if anyone was offended" sort of apology, either. "[I]t's clear that I was very much out of line," he said in a statement. "I aspire to act with great respect and humility in dealing with others, no matter what the situation. Clearly I failed to do so. I am sorry, and I intend to do better in the future. I have reached out to Ran [Duan, the recipient] and will apologize to him personally as well." So he should get some credit for that.

And he needs the credit, because as Boston.com also reported yesterday, he's done this kind of thing before. If there was an apology in that case, the article doesn't mention it.