July 24, 2012

Sports Injuries: Watch the Birdie

New York Appellate Division, Second Department: Gibbons v. Pine Bush Central School District

One tends not to think of badminton as a contact sport, but apparently dangers lurk on the court.

Plaintiff was playing badminton during gym class and testified that the strategy is to “spike the shuttlecock” away from your opponent so there will be no return volley. While badminton may not be as fast-paced as tennis, the object is largely the same: win the volley with force and accuracy. Unfortunately, even in a badminton, accuracy is often sacrificed for force and speed. And when that happens, so too do errant shots, one of which struck the infant plaintiff in the eye injuring her. (It is worth noting that the when struck with a racket, no matter how the birdie begins its assent, it always reorients to a cork-first profile and can be returned at an initial speed off the racket of nearly 200 mph and thus has the potential to injure if it hits an opponent just right).

The infant’s father brought this action against the School District alleging the injury was caused by its negligence. The school district’s motion for summary judgment was denied and this appeal followed.

Because even badminton can be a fast paced game and a wild return can just happen, the father’s claim alleging lack of supervision did not fly. No one can be expected to supervise in such a way as to prevent a bad shot off the racket. The only thing left was plaintiffs’ claim that protective eye gear should have been required. That plaintiffs’ expert made the claim did not make it so. The use of eye protection for badminton was not “a generally accepted standard or practice in high school.” Accordingly, the Second Department flipped plaintiffs back the birdie and dismissed the case.

The accident was no one’s fault.

June 1, 2012

Slander Per Se: Gay New World?

New York Appellate Division, Third Department: Yonaty v. Mincolla

It’s difficult to keep up with the changes overtaking our culture. Health care, immigration policy and technology all shape the landscape and intersect with our lives in ways we barely understand, but perhaps the most influential, least understood and frequently most divisive issue that commands our attention is homosexuality. Even trying to articulate fair comment leaves one apprehensive, knowing that attacks will come from those for and against any further extension or limitation of gay rights in our culture. But this seems to be a banner week for the issue, and all I’m willing to say is that the jury is still out on the impact of all these changes.

What is a seeming victory for the homosexual community may prove to be something else for the nation at large because in all changes, there are unintended consequences. Who knows what is being wrought right now? A great utopia where tolerance and brotherly love have taken their rightful place in the panoply of values we cherish, or a great unraveling of the foundations which are at the very heart of who we are as a people. Like I said, the jury is still out, but here’s the latest from the court:

Plaintiff, presumably a committed heterosexual in a long-term relationship with his girlfriend, sued defendant. Defendant claimed he heard that plaintiff was gay or bisexual. He then told a close friend of the girlfriend in the hope that it would get back to her, which it apparently did. That led to the deterioration of the boyfriend-girlfriend relationship. Plaintiff sued defendant for slander per se. And defendant sued the close friend for repeating the gay accusation.

It used to be that calling a heterosexual a homosexual was slander per se, that is, in a class of accusations that are “commonly recognized as injurious by their nature, and so noxious that the law presumes that pecuniary damages will result.” In New York, there were four such categories of slanderous utterances long held to be injurious by nature, and then a fifth, which is the subject of our discussion. The Third Department describes it this way:

The four established "per se" categories recognized by the Court of Appeals are "statements (i) charging [a] plaintiff with a serious crime; (ii) that tend to injure another in his or her trade, business or profession; (iii) that [a] plaintiff has a loathsome disease; or (iv) imputing unchastity to a woman" (id.). As Supreme Court noted, the Appellate Division Departments, including this Court in dicta, have recognized statements falsely imputing homosexuality as a fifth per se category [citations omitted].

Since the homosexual rights’ debate has been reframed from a question of whether it is morally right to a question of whether it is a civil right, great inroads have been made extending protection to everything gay. Recognizing this apparent cultural shift, the court was loathe to treat the accusation of homosexuality as a defamatory statement per se, holding instead that all precedent to the contrary should be ignored, and from here on damages must be proved if any gay slander (can there even be a gay slander in light of this decision?) is to be considered actionable. Here’s its reasoning:

We agree with defendant and amici that these [prior] Appellate Division decisions are inconsistent with current public policy and should no longer be followed. Defamation "necessarily . . . involves the idea of disgrace" (Bytner v Capital Newspaper, Div. of Hearst Corp., 112 AD2d at 667). Defendant and amici argue — correctly, in our view — that the prior cases categorizing statements that falsely impute homosexuality as defamatory per se are based upon the flawed premise that it is shameful and disgraceful to be described as lesbian, gay or bisexual. In fact, such a rule necessarily equates individuals who are lesbian, gay or bisexual with those who have committed a "serious crime" — one of the four established per se categories (see Liberman v. Gelstein, 80 NY2d at 435).

The court concluded that “it cannot be said that current public opinion supports a rule that would equate statements imputing homosexuality with accusations of serious criminal conduct or insinuations that an individual has a loathsome disease [citations omitted]."

Of course this misses the moral point altogether, which may be the very point the court was making. If one objects to homosexuality on moral or Biblical grounds, it is not the “serious crime” like nature of the allegation that is defamatory, it is the moral opprobrium that results. Since the debate is being stripped of its moral component, even the court had to focus on a straw argument about criminality to reach its conclusion (the better comparison would have been to accusations about being an unchaste woman, still considered a moral slur on a woman's character). But whether the court likes it or not, nearly half the nation still has moral objections to homosexuality and its attendant issues, including gay marriage, and the slander alleged is based on that premise, not on some criminal equivalency the court preferred to focus upon. Nevertheless, the court chose to read the times as it sees them and dismissed plaintiff’s case.

But the greater debate is far from over. The very week that this decision was published, DC comics outed the Green Lantern. Is that a good thing in a children's comic strip? Some think it’s wonderful. Others are appalled. Like always, it depends on your perspective.

And as for the law of unintended consequences, it’s never quite clear where the civil rights argument on sexual issues will lead or where it will end. Utah's polygamous family stars of TV’s Sister Wives have also won a legal victory in their civil rights’ claim to live how they choose, and for now, authorities seem to agree. You want more than one wife? Have at it. The State has declined to prosecute for polygamy.

We are either watching a revolution of rights unprecedented in world history, or a devolution of moral values unprecedented in American history.

Either way, the times they are a-changin...

April 16, 2012

Domestic Animals: Horsing Around Doesn’t Pay

New York Appellate Division, Third Department: Bloomer v. Shauger

The Third Department revisits injuries caused by domestic animals in the sad tale of loss between lifelong equine pals.

Briefly, the two steeds in question were Whiskey and Topper, paddock pals for more than two decades. Topper fell ill in the winter of 2008. Whiskey had generally been an anxious horse, but even more so when Topper was put down in front of her. Then, when a back hoe was brought in to dig a grave for Topper, also in front of Whiskey, her agitation increased along with her pacing and whinnying.

Defendant’s neighbor, the plaintiff, heard the sound of digging next door and came to lend a hand preparing the grave site. Whiskey was frantically pacing when Topper was about to be interred, so plaintiff began stroking Topper, which seemed to calm Whiskey, who approached and put his chin on plaintiff’s left shoulder. Plaintiff then grabbed Whiskey’s halter to hold her steady. Defendant approached with a lead line, which Whiskey had a history of avoiding whenever possible, and tried to attach it by reaching across Whiskey’s face. At that point, Whiskey spooked and reared back. “In the process, the middle finger of plaintiff’s left hand caught in one of the metal rings on the halter, resulting in a significant injury that required surgical intervention.”

Could plaintiff hold defendant responsible? Not according to the trial court, which granted summary judgment. And not according to the Third Department, which affirmed.

New York no longer ‘recognize[s] a common-law negligence cause of action to recover damages for injuries caused by a domestic animal.'” Even if there was some negligence on the part of the defendant, who may have spooked Whiskey, the Court of Appeals has made its position clear—such negligence is not actionable; what is actionable when it comes to domestic animals, is strict liability, and then only when the owner “either knows or should have known of the animal’s vicious propensities.”

Normal horse behavior, even normal anxious-horse behavior, is not enough to meet that threshold. A known vicious propensity must be the very behavior that causes the injury, not normal horsing around. Accordingly, the order dismissing the case was affirmed.

Trying to make some horse sense out of all this, the dissent had this to say: “New York is apparently ‘the only state in the nation that rejects the rule set forth in the Restatement [Second] of Torts’ regarding an owner’s negligence as a ground for liability arising from the dangerous acts of animals [citations omitted]. As we are thus applying an extremely restrict rule, we should not do so in an extremely restrictive manner.”

The rule as applied has seriously reigned in cases against owners of domestic animals, whether the animal is a horse or a cow. Maybe George Orwell's famous Animal Farm line is an appropriate epitaph for this sort of action in the Empire State: “Four legs good. Two legs bad.

And no leg to stand on for this plaintiff.

April 9, 2012

Cattle Drive: Steering Clear of Cow Maneuver

New York Appellate Division, Third Department: Hastings v Sauve

It’s after 1:00 AM. Your driving along an upstate county road, when bamm!—you collide not with a Jaguar or a Mustang or a Road Runner, but with a range rover—an actual cow that wandered into oncoming traffic.

Plaintiff Karen Hastings was injured in the accident. The named defendants owned, shipped and corralled cattle and defendant Williams admitted the wayward bovine was one of his which he kept in a fenced pasture adjacent to the roadway.

Plaintiff sued alleging “defendants were negligent in not properly confining the cow to the pasture and by allowing it to wander onto the adjacent highway causing the accident”—a kind of mooving violation. Plaintiffs did not allege strict liability since under New York law, only owners who know their domestic animal has vicious or abnormal propensities can be prosecuted under such a theory; as this was no mad cow, the only recovery sounded in negligence. That claim was dismissed by the trial court on a motion for summary judgment.

The Third Department affirmed, claiming it was obligated to do so under existing law. Noting that owners of large animals, like cows or horses, assume “a very different set of responsibilities in terms of the animal’s care and maintenance than are normally undertaken by someone who owns a household pet,” they assume the same liability: under state law a Guernsey and a Greyhound are both considered domestic animals, so the same rule of law applies. If the cow in question was gentle as a lamb, there can be no recovery, no cash cow. The court saw this as a kind of cow poke in the injured plaintiff’s eye and said so in these words:

For this reason, we believe in this limited circumstance, traditional rules of negligence should apply to determine the legal responsibility of the animal’s owner for damages it may have caused. However, it is not for this court to alter this rule and, while it is in place, we are obligated to enforce it.

One suspects we’ll be waiting till the cows come home before this rule changes.

For now, it's a bull's-eye for the defense.

March 13, 2012

Dumping on the Regulations: One Man’s Trash is Another Man’s Art

Supreme Court NY County: Albert Prince v The City of New York

Q: How much does it cost to garbage pick recyclables in New York City?
A: $2000. And if you attempt to drive away with your stash of trash, your vehicle can be impounded.

What if you are merely an artist who uses “found objects” to express yourself? Surely the law recognizes the artist’s right to troll the streets of metropolis in search of inspiring throw-aways and to remove them by car (artistic license to drive!) to reassemble them in studio with an eye toward lifting the spirits of the common man from the loo to the Louvre. Sadly, there are statutes for such statues, and even starving artists must give ear to the law.

Albert Prince discovered gold in the gutter when he found a rooftop television antenna made of recyclable metal along with a few choice cans curbside. He took them into his car before the Gmen made their appointed rounds. Spotted by a vigilant sanitation officer, he was issued a citation for violating the NYC Administrative Code prohibiting the unauthorized removal or recyclable refuse. His car was impounded and he was fined $2000 (better than spending a night in the can). Believing the application of the Administrative Code to his circumstances was essentially a load of garbage, this challenge to the law followed.

According to Justice Kern, the law as written was not littered with discrepancies but was unambiguous as drafted. Moreover, there was no waste of words to sort through in determining the fine. Only one is provided: $2000, even for removing scraps. As for impounding the car, it cannot be said that such action represents an excessive fine since the purpose was to deter detritus delinquents from driving away with their debris.

As the court concluded, “It is not the role of the courts to rewrite the statute to make exceptions for people taking items in small numbers or for artistic purposes.”

So are we over-regulated or properly protected? Or is this just a bunch of rubbish?

As always, the answer is in the eyes of the beholder.

January 11, 2012

Sharia Law: Constitutional Ban or Bane?

US Court of Appeals, Tenth Circuit: Awad v. Ziriax

On November 2, 2010, Oklahomans voted on a proposed constitutional amendment. The final ballot measure read as follows:

This measure amends the State Constitution. It changes a section that deals with the courts of this state. It would amend Article 7, Section 1. It makes courts rely on federal and state law when deciding cases. It forbids courts from considering or using international law. It forbids courts from considering or using Sharia Law.

International law is also known as the law of nations. It deals with the conduct of international organizations and independent nations such as countries, states and tribes. It deals with their relationship with each other. It also deals with some of their relationships with persons.

The law of nations is formed by the general assent of civilized nations. Sources of international law also include international agreements, as well as treaties.

Sharia Law is Islamic law. It is based on two principal sources, the Koran and the teachings of Mohammed. [Emphasis the court’s.]

The amendment passed with a 70% majority vote. The final step to becoming law is certification of election results by the State Election Board, a procedural process to be completed the Tuesday after election Tuesday.

To paraphrase the movie title, If it’s certification Tuesday, this must be Belgium, because it certainly isn’t Oklahoma.

Two days after the people spoke, Muneer Awad, Executive Director of the Oklahoma Chapter of the Council on American-Islamic Relations, sued the members of the Oklahoma Election Board to prevent them from certifying the election results. The District Court granted a temporary restraining order, then a preliminary injunction. This appeal followed.

The Court of Appeals found that Mr. Awad had standing to challenge the constitutional amendment, that the issue was “fit for judicial review” and that, even applying a strict standard of scrutiny, Mr. Awad “is likely to succeed on the merits.” The problem the court could not ignore: “The amendment bans only one form of religious law—Sharia law.”

Quoting language from an earlier Ninth Circuit decision, the court put it this way: “[W]hen a law that voters have approved ‘affronts the federal Constitution—the Constitution which the people of the United States themselves ordained and established—the court merely reminds the people that they must govern themselves in accordance with the principles of their choosing.’”

For better or worse, we’re stuck with the rules of the game we created. The Constitution protects everyone. Either it will continue to make this a great nation where freedom reigns, or it will protect freedoms that will be our undoing.

We’ve gotten the balance right for over 200 years. There’s no reason to think we can’t do it for another 200, notwithstanding the latest challenges to our way of life and the fear that so often overshadows the debate.

December 20, 2011

Free Speech: Twitter Twits

US District Court for the District of Maryland: US v. Cassidy

Just how much First Amendment protection do Bloggers and Tweeters get? Apparently as much as Colonists got when they posted announcements on public bulletin boards. Which, all things considered, is probably the right result since, as the court notes, “A Blog is like a bulletin board, except that is erected in cyberspace rather than in one’s front yard,” and Twitter is likewise a kind of bulletin board, only one which sends the posting from one Colonist’s bulletin board to another, if the other wants to receive it (Twitter subscribers have the ability to restrict certain Tweets or Tweeters).

Newman (from Seinfeld) put it this way: “When you control the mail, you control information.” The courts generally embrace the Newman postulate in these terms: When you control content (with limited exceptions), you unlawfully control public discourse and violate the First Amendment. Either way, controlling content or information is, in most cases, unacceptable in a free society.

Back to bulletin boards and Mr. Cassidy: Cassidy was indicted under the federal stalking statute for Blogging, Tweeting and DM’ing (direct messaging) with “intent to harass and cause substantial emotional distress to a person in another state.” His target, Alyce Zeoli (or A.Z.), was the Supreme Head of a Buddhist Sect known as KPC. Cassidy and A.Z. had some brief history, both personal and professional, which did not end well. From that point on, Cassidy used cyberspace to launch a crusade against A.Z. which she and the FBI thought ran afoul of the federal stalking statute.

Not as applied to this case, says the court. And the nature of the electronic communication is significant:

Whether couched in terms of the Internet or Colonial bulletin boards, there is one consistent aspect of both eras. One doe not have to walk over and look at another person’s bulletin board; nor does one Blog or Twitter user have to see what is posted on another person’s Blog or Twitter account. This is in sharp contrast to a telephone call, letter or e-mail specifically addressed to and directed to another person, and that difference...is fundamental to the First Amendment analysis in this case.

The decision chronicles a handful of the offensive, weird and questionable Tweets and Blogs of Mr. Cassidy. But because these communiqués could be ignored or restricted, A.Z. could not rightly claim that she was being harassed. The Tweets and Blogs, insulting and even outrageous, did not fall into the category of unprotected speech (obscenity, fraud, true threats, incitement, or speech integral to criminal conduct). Moreover, A.Z. is a well-known religious figure who was the subject of a critical non-fiction book called The Buddha from Brooklyn, and “although in bad taste, Mr. Cassidy’s Tweets and Blog posts about A.Z. challenge her character and qualifications as a religious leader.” Fair game in a free society. As such, the restrictions attempted in this criminal matter would have to survive strict scrutiny.

They did not.

According to the court, that portion of the stalking statue relied on to indict Cassidy for harassment “amounts to a content-based restriction because it limits speech on the basis of whether that speech is emotionally distressing to A.Z.” The court went on to say that “A.Z. had the ability to protect her ‘own sensibilities simply by averting’ her eyes from the Defendant’s Blog and not looking at, or blocking his Tweets.”

The statute was unconstitutional as applied and the indictment was dismissed.

Free speech can be uplifting, inspiring and profound, but in the free-for-all where we live, it also means protection for the vulgar, insensitive and crude. We get to choose who to follow and who to ignore, not the government.

The alternative is unthinkable—nay, unspeakable.

November 25, 2011

No Right To Privacy: GPS and the Road to Unemployment

NY Appellate Division, 2nd Department: Cunningham v. NYS Dept. of Labor

Being a state employee has its benefits. Unauthorized absences and falsifying time records are not among them, especially if you’re part of management. Michael Cunningham was Director of Staff and Organizational Development for the NYS Department of Labor for nearly 20 years. For the last ten, he had been disciplined for workplace misconduct on a number of occasions. Of late, he was suspected of taking unauthorized absences and falsifying time records, so after a failed attempt to follow Mr. Cunningham’s vehicle to confirm their suspicions, his bosses referred the matter to the Office of the Inspector General (OIG) to investigate further.

Not to be thwarted again by petitioner’s heightened awareness that the man was possibly onto him, OIG subpoenaed Cunningham’s E-Z pass records and placed GPS tracking devices on his vehicle to obtain a 30 day picture of Cunningham’s movements. The GPS evidence was damning and Cunningham was brought before a Civil Service disciplinary hearing. Although petitioner moved to suppress the evidence obtained via satellite tracking, the Hearing Officer denied the motion and recommended termination of employment. Cunningham’s bosses adopted the findings, and this Article 78 proceeding followed to see if they could legally can him.

According to the Appellate Division, they could. The administrative proceeding that found Cunningham guilty of most of the charges brought against him was not required to follow the same evidentiary rules applicable to a criminal proceeding. In People v. Weaver, New York State’s highest court held that when investigating criminal activity, absent exigent circumstances, “the installation and use of a GPS device to monitor an individual’s whereabouts requires a warrant supported by probable cause.”

When you work for the taxpayers, no such proscription exists. The test is “reasonableness.” And here, the court found it “undisputed that respondent had reasonable grounds at the inception of the use of the GPS to support individual misconduct by petitioner…Respondent [state employer] clearly had a responsibility to curtail the suspected ongoing abuse of work time not only to preserve its integrity, but also to protect taxpayer’s monies.” (Very refreshing to see someone cares where our tax monies go in this time of billion dollar bailouts to undisclosed recipients.)

The one-month-satellite tail on petitioner’s vehicle was not unreasonable, particularly since Cunnigham had previously given investigators the slip.

As a taxpayer, one can only cheer. As a citizen, the dissent may have the higher ground: “In determining that the unfettered use of GPS devices ‘to pry into the details of people’s daily lives is not consistent with the values at the core of our State Constitution’s prohibition against unreasonable searches’ (People v. Weaver [citation omitted], the Court of Appeals did not create a new law, but articulated the constitutional protection to which petitioner was entitled.”

With every advance in technology, we seem to be more accepting that we are always being watched. In 1928, Herbert Hoover promised a chicken in every pot and a car in every garage.

Now the promise is a camera on every corner and satellite imagery for every car that pulls out of the garage.

The jury’s still out on whether we’re more protected or less free.

Either way, we are more photographed, tracked and filmed than ever before.

So smile for the cameras.

August 31, 2011

Infliction of Emotional Distress: The Mother of All Divorces

Appellate Court of Illinois, First Judicial District: Miner v. Garrity

It was the Prussian military strategist Carl von Clausewitz who said “war is merely the continuation of politics by other means.” Angry ex-husband and lawyer on behalf of his children, Steven A. Miner, might say it this way: having my kids sue their mom for damages resulting from “bad mothering” is merely the continuation of divorce by other means.

Steven A. Miner II and his sister Kathryn brought suit against Kimberly Garrity (the former Mrs. Miner) for negligent and intentional infliction of emotional distress. Their claim: When they were minors, Garrity was a bad mom whose conduct was “fueled, in part, by [her] desire to retaliate against her ex-husband, toward whom she harbors great animosity.” The complaint enumerated a list of momma’s offenses over the years (pages “2” – “7” of the decision—well worth reading), which included:

The children were not treated equally at all times;
After the divorce, mom visited one child more than the other;
Mom refused to buy Kathryn a homecoming dress in 2007;
Mom failed to send Steven birthday presents for nine years;
One year she forgot Kathryn’s birthday; and, worse still,
Ms. Garrity once told her son Steven that if he didn’t buckle his seat belt “she would drive to the police station and tell the police that he would not put his seatbelt on.”

Enough maternal malfeasance to sustain a case? The former Mrs. Miner thought not.

The lower court agreed and dismissed all claims, stating,

Plaintiffs have failed to properly allege extreme and outrageous conduct on the part of the Defendant. The allegations set fourth here amount to a failure to buy dresses, failure to take them to the auto show, failure to provided financial assistance, failure to help with homework, failure to buy presents, and other petty grievances of parental attention of inadequacy. In essence, the Plaintiffs are suing their mother for bad mothering.

Bad mothering is just not actionable.

This appeal followed (and his ex-wife is harboring great animosity?!).

After considering the allegations against Ms. Garrity, the Appellate Court observed that under Illinois law, “parents have significant discretion in the upbringing of their children” and “the law is reluctant to interfere with such parental conduct...” Moreover, a parent “will not be held legally accountable in tort for every single insult or emotional slight that she might inflict upon others, only those which are ‘so outrageous in character, and so extreme in degree as to go beyond all possible bounds of decency.’”

None of Ms. Garrity’s alleged resentful child rearing regimen remotely approached that standard. Accordingly, the court held that “Fighting a bitter custody battle after a divorce and displaying favoritism among siblings might not be exemplary parental behavior, but neither are such actions beyond all bounds of decency in society.”

(If anything, such imperfect parenting is more the norm than the exception, even in the absence of a bitter divorce. If the Miner kids’ action was permitted to proceed, we would all end up in court as either plaintiffs or defendants or both.)

Case dismissed. Again.

This isn’t just a bad divorce.

It’s a divorce from reality.

And we wonder why people hate lawyers.

July 8, 2011

No Right to Privacy: GPS SOS for Marital BS

Superior Court of New Jersey Appellate Division: Villanova v. Innovative Investigations

Here’s a question for our times: Can you secretly put a GPS tracking device in the family car to see if your spouse is cheating? Apparently, you can.

Mr. Villanova was a Sheriff’s Officer. He and his wife were going through a contentious divorce. Suspecting her husband of cheating, Mrs. Villanova retained defendant Innovative Investigations to do some snooping. Officer Villanova was quick to realize that he was the target of surveillance and repeated efforts to follow him proved unsuccessful. Innovative finally suggested that Mrs. V purchase and install a GPS device in the family vehicle usually driven by her husband. She did just that, placing the small unit in the glove compartment of their Yukon.

The GPS monitored the Yukon for 40 days, reporting its movements over the internet. Mrs. V turned the reports over to her attorneys, who, one can only suspect, used the info to the wife’s advantage in the divorce proceedings. She did not, however, turn the info over to her investigators. That did not deter Mr. V, who was incensed that he’d been GPSed by the Private Eyes.

He sued Innovative for invasion of privacy.

Innovative moved for summary judgment at the lower level and won. This appeal followed.

Unfortunately for Mr. V, the aye’s have it, and so too do the PIs. The higher court ruled that “this record simply does not establish that any invasion of plaintiff’s right of privacy occurred.” The bottom line: “ ‘A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his [or her] movements from one place to another.’ ”

GPS may help you out. But it may also find you out.

Talk about being on the road to divorce.

June 15, 2011

High Speed Chases: Shifting Gears at Sentencing

US Supreme Court: Marcus Sykes v. US

OJ Simpson made history with his televised low speed chase. Marcus Sykes opted for the more traditional high speed chase when police in Indiana tried to pull him over for driving without headlights. Rather than comply, Sykes hit the accelerator and “wove through traffic, drove on the wrong side of the road and through yards containing bystanders, passed through a fence and struck the rear of a house. Then he fled on foot. He was found only with the aid of a police dog.” Mad Marcus was convicted of “vehicular flight,” a violation of Indiana’s “’resisting law enforcement’ law.”

Speed ahead a little. Mr. Sykes subsequently pleads guilty to possession of a firearm after an attempted gunpoint robbery. He gets an enhanced sentence of 188 months because he has 3 previous violent felony convictions. This appeal follows sentencing. While conceding 2 of the 3 felonies were violent, Sykes says the chase described above (the third felony relied upon to enhance his sentence) was not violent, just a felony.

The District Court thought the vehicle flight was a violent felony under Indiana law. So too did the Court of Appeals. Federal law holds in part, that an offense is deemed a violent felony for sentencing purposes, if it “involves conduct that presents a serious potential risk of physical injury to another.” Sykes claimed his driving posed no such risk.

According to the Supremes, however, “Risk of violence is inherent to vehicle flight.” Since flight invites and “even demands” chase by law enforcement, and chase invites even greater incentive to flee, the risk of violence increases with speed and time in pursuit. As Justice Thomas noted in his separate opinion, “chase-related crashes kill more than 100 nonsuspects every year.” So who has the right of way?

The court refused to yield: “Serious and substantial risks are an inherent part of vehicle flight.” All Sykes had to do was look out his window and see that he was driving through back yards.

It was the end of the road for Marcus Sykes. “Felony vehicle flight is a violent felony” and his enhanced sentence was affirmed.

Let’s just say Marcus drove a hard bargain.

May 23, 2011

Open Containers: Absolut Justice

District of Columbia Court of Appeals: Derosiers v. DC Court of Appeals

Vodka is often the preferred adult beverage for those looking to maintain a low profile when imbibing at inappropriate times or places. The prevailing wisdom is that it is not only colorless, but odorless. Less odorous, however, is not the same as odorless.

Appellant Chrishana Derosiers was convicted of an open container of alcohol in a vehicle. She brought this appeal claiming no one proved that the container in question actually had vodka in it. The question for the court was whether the evidence for conviction was sufficient absent a chemical test of the liquid in Ms. Derosier’s glass jar. Sometimes in court, as in life, the smell test is enough and it doesn’t matter whether the glass is half full or half empty.

Ms. Derosiers and a girlfriend were found by Park Police asleep in her Honda. She was behind the wheel. Between them in the cup holder was a glass jar with clear liquid. Office Matula woke the unconscious occupants and observed that their responses were “slurred” and a bit “incoherent,” that they had bloodshot eyes and breath smelling of alcohol. After administering a field sobriety test which produced less than “optimal” results, the cops removed the glass jar, smelled it, and determined it was vodka. Having sniffed out a crime, they poured out the booze and charged Ms. Derosiers with an open container violation.

She was convicted after a bench trial which was affirmed by the Superior Court then taken up to the DC Court of Appeals.

In the high court, Ms. Derosiers claimed that without a scientific analysis of the liquid, there was insufficient proof to sustain a conviction. While noting that vodka is 70 – 80 proof,, proof beyond a reasonable doubt is what's needed for an open container conviction. And that standard can be met by competent circumstantial evidence, to wit, the smell test.

No taste test is required. No scientific analysis of the liquid is required. Just the indicia of alcohol consumption identified, coupled with the “distinctive smell of vodka” coming from the open container, as testified to in open court.

The verdict may be hard to swallow for Ms. Derosiers, but she took her best shot.

This may yet prove to be headache for courts, cops and carousers, but for now, if it smells like booze, you’ll probably lose.