Product Liability

Portland Pimp Has a Point (But Suit Is Still Stupid)

LTB logo

Everyone seems to have rushed to judgment in the case of Sirgiorgio Clardy, the pimp sentenced to 100 years in jail for, among other things, stomping someone's face while wearing Air Jordans, and who has now sued Nike for allegedly failing to warn him that the Air Jordans could be considered a "dangerous weapon."

Everyone's judgment is totally right, they just rushed to get there. That's all I'm saying.

Sirgiorgio deserves a long sentence, and not just because of his name. He was convicted not only of the stomping and of robbing the stompee, but also of forcing a woman into prostitution and beating her severely. So he's now been convicted of 20 felonies at the ripe old age of 26, and a psychologist testified that he is "100 percent likely to commit crimes again." Supporting that conclusion was Clardy's pleasant demeanor at trial, as this was yet another failure of the "scream obscenities at judge and jury" defense strategy.

Although to be honest, that is one step above actually threatening to kill the jurors and their families if you are convicted, which remains the worst closing-argument strategy ever, and probably the worst one possible.

Anyway, the issue now is whether Clardy can blame Nike for the shoes. His gripe appears to be that Nike did not warn him that using Air Jordans to stomp someone's face could result in a longer sentence than just using his foot. This is wrong for a couple of reasons, one of which is slightly more complicated than the other.

First, he has no claim against Nike because (among other reasons) a manufacturer isn't liable for an alleged failure to warn if the plaintiff's injury resulted from "abnormal handling" of the product. Benjamin v. Wal-Mart Stores, Inc., 61 P.3d 257 (Or. Ct. App. 2002). I don't know what kind of data there is on the use of Air Jordans, but I'd be willing to bet that "stomping someone's face" is not on the short list of "normal" uses.

Second, why is Clardy the one claiming "injury" when he was the one doing the stomping? This seems related to the fact that his crime(s) were considered more serious because he used a "dangerous weapon." For example, under Oregon law using a "dangerous weapon" during a robbery is one of the factors that qualifies it as "first-degree" or "Class A" robbery. Clardy seems to be suggesting that had he known Air Jordans could qualify as "dangerous weapons," he might not have used them, and his sentence would now be something less than a century.

This depends at some level on the argument that one would not expect Air Jordans to be considered "dangerous weapons" in the first place, because there's no requirement to warn about something that should be obvious. (This and other items in the "Warning" category notwithstanding.) And to that extent he has a point. To start with, let us consider the bare foot.

A bare foot (or hand) is not a "weapon." It is a body part. Body parts cannot be "weapons" because there must be a distinction between the two or else it makes no sense to "enhance" a crime for using a weapon; every crime would involve a weapon. If that seems obvious, prosecutors have repeatedly argued to the contrary. It once took the Ninth Circuit 14 pages to explain to them why bare hands are not "weapons," and an Oregon court has had to explain the same thing about teeth. There are states in which courts have held body parts can be weapons, goofy as that is, but Oregon is not one of them.

What about shoes? Certainly you could put something on a hand or foot that would qualify, like brass knuckles or steel-tipped boots. But sneakers? There are in fact several cases in which sneakers have been held to be a "dangerous weapon." Those courts reason that it matters how the thing is used, not just what it is, and so regular items can qualify if used, for example, to stomp a face. But if that were the only factor, then again there would be no necessary distinction between a body part and a "weapon"—it would only matter how you used it. To qualify, I think the item must have some capacity for inflicting more serious injury than the body part would. Again, steel-tipped boots? Sure. Sneakers? I don't think so.

Ultimately, though, this issue probably would not have made a difference. It sounds like he got the long sentence not because he used a "dangerous weapon" but because he was sentenced as a "dangerous offender." That law increases the possible sentence for repeat offenders who suffer from a "severe personality disorder" showing a propensity for violence, which seems like a no-brainer in this case. It doesn't have anything to do with what kind of weapon he used, and so Nike's failure to warn him about that issue could not have injured him.

Full disclosure: my firm represents Nike, but (unfortunately) not in this case.