New York Injury Attorney Blog

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.

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.

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.

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.

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.

Circuit Court, Hillsborough County Florida: Mansour v. Islamic Education Center of Tampa

There has been much concern voiced over Sharia Law, the body of rules and instruction which "guides all aspects of Muslim life including daily routines, familial and religious obligations, and financial dealings." On the one hand, its proponents call for its application worldwide, believing its mandates and proscriptions are superior to secular law and that it is God ordained, having the ability to lead its adherents into a more righteous life as defined by Islam. On the other hand, its opponents call for it to be banned in America (and in other democratic/pluralistic nations) as a draconian throwback to medieval times which oppresses women and minorities, is intolerant (and worse) of other religions and which condones (or tolerates) brutal punishment for offenders.

Like so much of life these days, your view of these issues depends on where you stand. But sometimes, thorny theoretical issues become thornier real issues. The Mansour case may be the first ripple in a rising tide of Sharia law, or a mere instance of religious freedom being equally afforded Muslim-Americans.

Again, your stand determines how this sits.

According to the St. Petersburg Times, Mansour brought an action against a local mosque after he and other trustees claimed they were improperly discharged in 2002, and after the mosque received $2.2 million from Florida in compensation for use of its land for a road project. This lawsuit, at least in part, is about control of the money. But before the parties got to court, the dispute was supposedly submitted to an a’lim, “a Muslim scholar trained in Islam and Islamic law…” Apparently not satisfied with his ruling, the ousted trustees filed this court action against the mosque.

As the court put it, “This case will proceed under Ecclesiastical Islamic Law.” Its brief ruling was that there would be a hearing “to determine whether Islamic dispute resolution procedures have been followed in this matter.”

Is this one small step for plaintiff Ghassan Mansour, and one giant step for an international Caliphate? Or just a local judge resolving a local dispute that was submitted to a local arbitrator who just happened to be an A’lim?

Do the trustees have a prayer? Does the Mosque? Does anyone but the litigants care?

The tougher questions are these: Can freedom of religion as we have known it survive the demands of Islam? Or is freedom of religion as we have known it the only way Islam will become peculiarly American, embracing religious diversity and respecting the rights of others?

God only knows.

US Court of Appeals, 2nd Circuit: US v. John C. Hotaling

It’s hard to fathom just how much things have changed in our lifetime. Fifty years ago children played with Colorforms—three inch flat cutouts of cartoon characters or TV stars that could be dressed up with plastic stick-on clothing and accessorized with plastic stick-on jewelry, rainwear or even weapons, depending on the Colorforms purchased. Now, digital cameras and personal computers have given us the ability to cut and paste faces of children onto images of adult bodies engaged in sexually explicit conduct—a process known as “morphing.” Colorforms may seem boring in retrospect, but this kind of computer morphing is child pornography and it carries some serious consequences.

Defendant Hotaling “cut” the heads of minor females (including photos of his daughter’s friends!) and superimposed them on adult nudes engaged in a variety of explicit sexual activity. He indexed the final images and encoded them with Hypertext Markup Language (HTML—the key to posting on the internet) and admitted possession of his cut and paste collection. He was convicted under Federal child pornography laws and received an enhanced sentence of 78 months in prison because of the sadistic nature of some of the images he kept.

Hotaling appealed, claiming the Federal statute was “vague and overbroad,” that “no actual minor was harmed” and that the digitally created photographs were saved only to “record his mental fantasies” and was therefore protected First Amendment speech.

The Court of Appeals wasn’t buying. For the court, “the underlying inquiry is whether an image of child pornography implicates the interests of an actual minor.” It did here. These children were real kids, not drawings or computer generated images. Some of the pictures even had their names on them. Morphed images using the faces of actual identifiable minors are not protected speech.

The court also rejected Hotaling’s claim that he only possessed the photos. As the court put it: “These are not mere records of defendant’s fantasies, but child pornography that implicates actual minors and is primed for entry in the distribution chain.” Recognizing that the internet is the great multiplier of shame for the girls whose faces were used and that there is no real redress for them once their images hit the internet, the court affirmed Hotaling’s enhanced sentence. It also found that these minor girls “were at risk of reputational harm and suffered the psychological harm of knowing that their images were exploited and prepared for distribution [over the internet] by a trusted adult.

There’s a disturbing lesson here for everyone.

Charles Dickens’ opening line in A Tale of Two Cities was this: “It was the best of times, it was the worst of times...” He could have been describing going on line, for the internet is as awe inspiring and it is awful…

State of Minnesota, Court of Appeals: Minnesota v. Wiggins

Not so long ago, we looked below the waist at a New York case of Pants on the Ground. In People v. Martinez, a Bronx Court said droopy drawers do not amount to disorderly conduct and a partial rear exposure does not offend public order or decency. Now Minnesota’s Court of Appeals takes a crack at the controversy.

The issue in Wiggins was this: When making a valid drug bust, did an officer unconstitutionally seize or search defendant Wiggins when she ordered him out of the car, made him raise his hands overhead, then gave him a “wardrobe assist” for his unexpected wardrobe malfunction (unlike Janet Jackson's) by pulling up his low-riding Levis from around his knees and finding what turned out to be a .380 caliber pistol in his pocket (which explained the sudden descent of defendant’s pants when he stood up)?

According to the court, “the officer reasonably ordered Wiggins to raise his hands and reasonably decided to adjust his excessively sagging pants. The adjustment did not constitute a search and was not conducted in a manner that raises any constitutional concerns.”

Here’s the brief story: The cops observed what looked like a buy and bust in a White Castle Parking lot on a main street. Wiggins was ordered out of the car and told to put his hands up. When his hands went up, his loose fitting jeans went down to his knees. Officer Breci was going to pat-frisk Wiggins but first pulled his pants up. In the process, she found the gun. He was charged with possession of a firearm but moved to suppress the weapon. His motion was dismissed and taken up on appeal.

Finding that the cop was “help[ing] him get his pants into a decent position,” the court ruled for the State. Although Wiggins was seized at the time he was ordered to raise his hands, he was not searched. Cops are permitted to do a limited pat-down search for their safety, but PO Breci never even got that far. Instead, it was an “accidental finding of a gun” during a wardrobe assist to keep defendant’s dignity in tack and his derrière from remaining on display.

Officer Breci was left with a Hobson’s choice. Pull up the pants and be accused of an illegal search and of inappropriate touching, or leave the pants at knee length and be put at risk of physical harm (if Wiggins went for the gun) and the accusation that Wiggins was “unreasonably humiliated” by the public exposure of his nether regions by cops intent on embarrassing him.

In this instance, the court found that pants on the ground are grounds for a wardrobe assist and the fruit of the wardrobe assist—the discovery of a pistol while defendant flashed his fruit of the looms—was reasonable.

Talk about getting caught with your pants down.

Supreme Court, New York County: Schlass v. David J. Swarts, Commissioner, NYS DMV

In California, it’s three strikes and you’re out. Repeat felony offenders know that the third felony conviction is not a charm, it’s a life sentence.

New York now has its own three-time offender law. Only it doesn’t point to a cell, it points to a cell phone.

Natalie Schlass got busted for the third time in 18 months for using her cell phone while driving, a violation of Section 1225-c of New York’s Vehicle and Traffic Law (“no person shall operate a motor vehicle upon a public highway while using a mobile telephone to engage in a call while such vehicle is in motion”). After a hearing before the Department of Motor Vehicles, Natalie’s license was suspended for 31 days. Her appeal found its way to New York Supreme Court.

Natalie called the sentence “arbitrary and capricious” and claimed it “shocked the conscience” since the offense does not carry points and the VTL section does not specifically provide for suspension of a license for using her mobile while motoring in midtown. She also claimed hardship (she is the sole caretaker of her 95 year old father and must take him for frequent doctor visits) and that she had no idea such a punishment could result.

All wrong numbers as far as the court was concerned.

Having failed to bring up the hardship claim at her earlier hearing, the court refused to entertain it; it did, however, entertain a history of bad driving which the court concluded was as detrimental to her father’s health as was his pulmonary fibrosis. And as for notice and the right of the DMV to suspend for 31 days, the court basically said “read the VTL in its entirety,” not your recent messages. It’s in there! Temporary suspension of a driver’s license is an available remedy “for any violation of this chapter…”

Having put all of Natalie’s argument’s on hold, the court’s text was unambiguous: If you didn’t change your behavior because of fines, a suspension of your license might alter your calling patterns.

Or put another way, “can you hear me now?”

New Yorkers beware: Points on your license isn’t the only road to revocation or suspension; speed dialing can get you grounded, same as speeding. Make your call later, or you could be calling for assistance of counsel.

Supreme Court of Ohio: City of Barberton v. Jenny

Maybe he wasn’t traveling faster than a speeding bullet, but defendant Mark Jenny was driving fast enough to catch the eye of Officer Santimarino. The question the court had to resolve: Was catching a speeder with your eyes enough to convict?

Officer Santimarino was with the Copley Police Department for 13 years. He was certified by the Ohio Peace Officer Training Academy, where he was trained to visually estimate vehicle speeds. In fact, to become certified, he had to show that he could estimate a vehicle’s speed “to within three to four miles per hour of the actual speed.”

PO Santimarino eyeballed Jenny at 70 mph in a 60.

He was also operating a radar gun at the time. He clocked Jenny at 82.

So much for estimating “within three to four miles per hour.”

He issued Jenny a citation for doing 79.

So much for modern math.

(In fairness to the cop, he testified he was doing Jenny a favor by reducing the speed on the citation so he wouldn’t have to make a personal appearance in court.)

At trial, Officer Santimarino could not produce a copy of his radar training certificate. That meant the radar results were precluded and that the only evidence in support of the speeding ticket was the visual observation of Jenny’s speed.

Jenny moved to dismiss arguing that the city failed to meet its burden of proof—or more accurately, that it had no proof of speeding at all. The lower court dismissed Jenny’s motion and found him guilty based only on the cop’s estimate of speed (which the court reduced to 70 mph on the citation since the speeding was now "clocked" at 70 mph by the only admissible evidence). That the court was aware of the radar result gave it confidence to convict, but it had no influence on its decision (wink, wink!). Punishment: a $50 fine plus costs.

Jenny appealed.

The court of appeals held that the state could not use the radar as proof of speed because there was no certification produced but that hearing about the radar reading was harmless error. There was still “sufficient” proof if a trained law man knew Jenny was speeding by seeing him do so. Conviction upheld.

Jenny appealed again.

Ohio's highest court resolved conflicting state court decisions without batting an eye:

We hold that a police officer’s unaided visual estimation of a vehicle’s speed, by itself, is sufficient to support a conviction for violation of R.C. 4511.21 (D) without independent verification of the vehicles speed if the officer is trained, is certified by the Ohio Peace Officer Training Academy or a similar organization…and is experienced in visually estimating vehicle speed.

For Jenny, not the blind justice he was hoping for.

This gives new meaning to the phrase “I’ll see you in court.”

Keep an eye on this trend. It may put a lid on your ability to ever meaningfully challenge a speeding ticket.

US District Court, Eastern District of Michigan, Southern District: CAIR v. Judge William Callahan

Is this a blow against Muslim freedom of religion or not? You decide. The District Court upheld Wayne County Judge William Callahan’s declaration to hijab-wearing plaintiff Raneen Albaghdady, “No hats allowed in the courtroom.”

When told her headwear was not permitted, Ms. Albaghdady responded, “Okay. It doesn’t matter,” and removed the hijab. Her name change application then proceeded to decision (unfavorable, it turns out, because she filed without meeting the residency requirement), to be followed by a successful reapplication some time later.

The guardians of all things Islam, the Council on American-Islamic Relations (CAIR), apparently heard about Judge Callahan’s ethnic and religious insensitivity and filed this action “seeking a ‘declaration that the customary practice of … Callahan, in requiring Muslim women to remove their hijab violated’ Albaghdady’s ‘fundamental right to freely practice her religion’ in violation of the First Amendment.”

Judge Callahan moved for summary judgment. The court granted the motion and dismissed CAIR’s action. Blogs began to report this as another encroachment on Islamic freedom of religion. The decision will actually have the exact opposite effect. Albaghdady’s problem was not her religion, but apparently how she viewed the head cover. As she put it, it didn't matter. So she took it off. According to the District Court, if it didn't matter in the lower court, it couldn't matter later when she decided to sue in Federal Court.

CAIR claimed that the Judges no-hat policy is unconstitutional because it deprived Albaghdady of her right to exercise her religion and therefore restricted her access to the no-headgear judicial system of which Judge Callahan is a part.

Based on the facts at bar, the District Court could not find an applicable exception to the judicial immunity extended judges in the exercise of their duties. Moreover, the court’s conduct at issue is this case involved controlling dress and demeanor of parties participating in proceedings before the court, clearly the exercise of a duty within Judge Callahan’s juridical capacity.

As for the constitutional issue, plaintiff wanted to know what Judge Callahan knew and when he knew it, insisting he had to be familiar with the religious implications of the hijab because Wayne County is “home to the largest concentration of Arab-American Muslims outside of the Middle East” and the judge had 22 years experience on the bench. The inference was clear: Judge Callahan knew this was no ordinary hat, but was, rather, a religious head covering.

Decent arguments all, except that the exchange between parties was recorded on videotape, and it was clear that removing the hijab for Ms. Albaghdady was no big deal, and not a peep of religious protest was uttered at the time, notwithstanding Ms. Albaghdady’s subsequent claim that she was “terrified and scared” because in America, you just “can't say no to a judge in a court room.”

Based largely on the video, the District Court concluded that “This is not a situation where a government actor required removal of the hijab after the wearer asserted her First Amendment rights. There simply is no evidence that Callahan would have required the removal of a head covering if he had known of its religious significance.”

So does this case encroach on the religious freedom of hijab-wearing Muslim women? (or Muslim women wearing Burqas, Niqabs or Chadors for that matter). Hardly. It just sets out the requirement that they raise a timely religious protest of some sort which will apparently guarantee that they can wear the headgear of their choice to the courtroom of their preference.

Hats off to the court for defending the American way of life.

Or not.

Superior Court of New Jersey Appellate Division: J.T.’s Tire Service v. United Rentals

There are basically two forms of sexual harassment: The first is quid pro quo sexual harassment, which “occurs when an employer attempts to make an employee’s submission of sexual demands a condition of his or her employment.” The second is hostile work environment sexual harassment, which occurs "when an employer or fellow employees harass an employee because of his or her sex to the point at which the working environment becomes hostile.”

Simply put, the latter form of harassment generally occurs when a woman works among Neanderthal men who have not learned that it is no longer acceptable in the work place to comment about anatomy, grab or grope said anatomical parts or generally act like we still live in the stone age. It’s akin to a mob mentality on a smaller scale and it brings out the worst in men. Just ask Isiah Thomas of the Knicks and Madison Square Garden Chairman James Dolan.

Quid pro quo sexual harassment is of a different nature. It requires no mob, no assists, just a willingness to abuse power or position for sex. It’s not just the lowest form of harassment, it’s the low-life form of harassment. But can it happen when it isn’t the boss hitting on an employee? What about in the market place, when the representative of one business demands sexual favors from the representative of another to close the deal or to maintain their commercial intercourse?

United is a national equipment rental company. Its Piscataway branch manager was Harold Hinkes. Eileen Totorello is the sole shareholder of J.T. Tire Service, a company that was selling tires to United since 1998. In 2005 Hinkes “began pressuring Totorello to have a sexual relationship with him.” She refused. United Piscataway then stopped buying her tires.

Totorello “managed to get the work back” (one wonders what was said), but Hinkes continued to make threats to withhold business if theirs remained a sex-free relationship. Apparently intent on winning, or at least commandeering sexual favors from Ms. Totorello, he used his tired old tire line to make his point, and added a little kissing and groping in case he had been too subtle. When she refused even these creative advances, Hinkes told her she made a “very poor business decision.” Tire purchases then went permanently flat when United stopped buying J.T.’s tires, which by then amounted to sales of $29,000 per month.

J.T. and Ms. Totorello sued. The lower court said there was no case (all’s fair in love and war, and apparently in business), and that this was not the type of harassment contemplated by the Jersey discrimination statute. The Appellate Division disagreed, finding that “The LAD prohibits discriminatory refusals to do business on the basis of sex, by making it unlawful: For any person to refuse to buy from…contract with…or otherwise do business with any other person on the bases of …sex.”

While defendant conceded that the statute prohibited sexual harassment, it argued that it did not prohibit sexual discrimination, and that the former was prohibited only in employment, and either way, this was not the kind of discrimination the LAD contemplated. While United get’s an “A” for chutzpah, it got nowhere with the court, which ruled:

Although the LAD does not specifically mention sexual harassment as a prohibited form of discrimination, it is well-established that ‘[s]exual harassment is a form of sex discrimination that violates both Title VII and the LAD.’

It went on to say the obvious, which unfortunately for alleged low-lifes and Neanderthals, often needs to be said, to wit, “Where, as here, the harassment consists of sexual overtures and unwelcome touching or groping, it is presumed that the conduct was committed because of the victim’s sex.” And since touching and groping made the question easier for the court to resolve, the refusal to buy tires under the above quoted LAD meant that United’s actions through Hinkes was also discriminatory due to her sex. To rule otherwise, to let such behavior continue unfettered, “would stand as a barrier to women’s ability to do business on an equal footing with men.”

It was Lord Acton who said “power corrupts and absolute power corrupts absolutely.” But it’s all relative. Even a little power, like a little knowledge, is a dangerous thing in the wrong hands.

United ended up with a blow out in court for letting Hinkes drive a hard bargain. Maybe now it will remember one of the fundamental reasons to conduct business at arm’s length—it keeps negotiators out of groping and grabbing range.

New York State Appellate Division, 3rd Department: Detraglia v. Grant

Cell phones continue to make law. Last month we looked to Ohio where the court concluded it is a crime to destroy the cell phone of someone calling authorities for assistance in an emergency where life or property are at risk. So how does New York view cell phone records after there’s been property damage and injury as a result of an auto accident.

Robert Grant was driving a company car owned by Hawkeye, his employer. His vehicle collided with defendant Detraglia’s car. Stephanie Detraglia, an infant passenger, was injured and brought this action against both drivers. Demand was made that defendants Grant and Hawkeye “produce billing records for all three of Grant’s cellular telephones and the Verizon wireless air card for his company-issued laptop computer for the date of the accident between 12:00 PM and 4:00 PM” (the accident happened at 2:57 PM). Defendants refused to comply. A motion to compel discovery followed.

Although Grant testified at deposition that he wasn’t using his cell phone or lap top at the time of the accident and that the lap top was secure in a bag, the tow truck driver at the scene submitted an affidavit stating that “he saw the laptop on the vehicle’s computer desk, with the screen flipped up and turned on” indicating recent use. That raised enough of an issue for the lower court to order defendants to turn over the records. Grant and Hawkeye appealed.

The Appellate Division agreed with the lower court, finding that “conflicting evidence raised questions as to whether Grant used any technological devices while driving, rendering the records relevant to the question of his negligence.” The court narrowed the window of discovery of such records to 2:30 PM to 3:30 PM and directed that the court do an in camera review first to protect privacy interests. If it turns out Grant was on the phone or on the computer at the time of the accident, he might have to hang up his defense.

Given how easy it is while driving to use a cell phone to text, get or send emails, surf the web, watch videos, and even make phone calls, such technological distractions are as likely to cause an accident as glancing at a map on the passenger seat or speeding through an intersection. Obtaining the details of a driver’s phone use seems fair game when trying to figure out what caused an accident. In fact, given the ubiquitous use of cell phones and the tendency of people to leave out important facts while being questioned under oath, it would seem that discovery of such records should be a matter of routine, denials of use notwithstanding. One suspects phone record discovery in accidents is well on the way to becoming the law of the land.

The Appellate Division's use of in camera inspection to limit intrusion into the individual's phone or lap top stored data and contacts is entirely in keeping with the value we place on our right to privacy. In Ohio v. Smith, an unrelated case decided the same week, that state’s high court ruled that there is a “high expectation of privacy in a cell phone’s content” particularly because they are “capable of storing tremendous amounts of private data.” Under the circumstances, “an officer may not conduct a search of a cell phone’s contents incident to a lawful arrest without first obtaining a warrant.” In Smith’s case, looking at who he called (supposed drug dealers he was negotiating with) at the time of the crime without first obtaining a warrant, and introducing such evidence at the time of trial, violated his Fourth Amendment right to be free from unlawful search and seizure. Absent exigent circumstances which require an immediate search of phone records for the safety of law-enforcement officers, a warrant is required.

Used to be you were entitled to one phone call when charged with a crime. Nowadays, a valid warrant to search your one cell phone could be your downfall.

And in a civil action, if the evidence of phone use at the time of the accident is in there, it could turn out to be the ultimate collect call, at least for the plaintiff seeking money damages.

Supreme Court of Ohio: State of Ohio v. Robinson

The law is a slow moving behemoth. Technology changes at a meteoric pace. Watching the law trying to keep up can be amusing and depressing. It can also leave one wondering if the common law—judicial decisions applying general principals of law to given sets of facts—has yielded to the nano state (a derivative of the nanny state) where legislative micro management of rapidly-changing technology is the norm and an ever-increasing challenge for our courts. Ohio v. Robinson is a case in point.

Raynell Robinson was upset with his nephew Antonio. Antonio and his friend Heather Hoge had attended a party at Robinson’s apartment when Robinson was not at home. When he walked in on the affair, he ordered everyone to leave. As nephew Antonio and his friend Hoge began to leave, Robinson hit Antonio in the back of the head. He then proceeded to pummel him. At some point Antonio called 911 on his cell phone. Although he was able to tell the operator that he was at The Meadows apartment complex and that his face was split open, Robinson grabbed the cell phone and smashed it before he could tell them his exact location. Antonio’s friend Heather Hoge then dialed 911 on her cell, but Robinson “told her to show him her hand and that that she had better not be calling the police.” Fearing for her own safety, Hoge got off the phone before she could say where in the complex Antonio was being beaten.

The cops eventually found the right place, the battered Antonio, and cited Robinson for Disorderly Conduct. A grand jury indicted him for the felonious assault of Antonio and for disrupting public service in violation of R.C. 2909.04(A)(3) which makes it a crime to impair the ability of law-enforcement officers and others to respond to an emergency or to protect and preserve any person or property from serious physical harm.

The assault count was never heard at trial. Antonio was apparently not confident he could be protected by the system. Instead, he moved to Arizona and refused to return to Ohio to testify, and, one suspects, obtained an unlisted cell phone number. Hoge testified, however, about the threats to her safety when she tried to call 911. Robinson was convicted and got 2 years for intimidating a victim and 15 months for impairing the cops’ ability to respond to the 911 call by smashing Antonio’s phone.

Plainly put, the question on appeal was whether smashing the cell phone was a separate crime under R.C. 2909.04(A)(3) since Antonio was trying to call the police for help at the time of the assault? The high court said it was.

The Third District Court of Appeals had held that R.C. 2909.04(A)(3) “clearly and unambiguously prohibits substantial interference with public emergency systems and utilities, not the destruction of a single private telephone or cell phone.” The Appellate court also found that the state “failed to prove the element of substantial impairment because the officers arrived at the scene of the assault within a few minutes of being dispatched.”

It’s not clear that Antonio appreciated this nuance or the extra time it took the cops to locate him in the complex or the fear he felt when his lifeline ended with the destruction of his cell phone. In fact, he seemed not to have fully recovered from this trauma, as his switch to Arizona Bell suggests, and the high court was not without sympathy. Ironically, the Ohio Supremes found with equal clarity and unambiguousness “that the damaging of a single private telephone or cellular telephone constitutes a violation of R.C.2909.04 (A) (3)” if the conduct substantially impairs the ability of law enforcement officers and others to respond to an emergency “or to protect and preserve any person or property from serious physical harm.” It also noted that the statute in question never mentioned “public emergency systems” or “utilities,” language the appellate court read into the statute when it reversed Robinson’s conviction.

As for whether there was “substantial impairment” of law enforcement’s ability to respond in this case, that was a question of fact for the jury. According to the high court, the issue isn’t one of response time, as the appellate court thought (is a 1 minute delay ok? is 3 minutes too much?); “the inquiry is directed toward [law enforcement’s] ability to respond.” Here, while the police were attempting to respond to Antonio’s call for help and find him in the complex without an exact apartment number, Robinson continued to beat the hell out of him. That was substantial impairment enough and a direct result of smashing the phone.

Accordingly, Robinson’s conviction and 15 month imprisonment for disrupting public services were reinstated.

This is not an isolated case. It is a picture of the nano-state we live in. Technology keeps changing. Elected officials try to keep up. The legislation gets too technical. Then the courts, in this case, the Third Appellate Department of Ohio, get hyper technical and ethereal, only to be corrected by a high court that agrees with a jury of lay people who got it all right from the beginning.

The diminished role of common law (and the elevated role of legislative solutions to perceived technical loopholes in the law) brings with it a concomitant loss of common sense. It would seem plain to everyone but judges that smashing the cell phone of your assault victim as he calls for help would impair law enforcement’s ability to respond and was the sort of thing envisioned by Ohio’s duly elected representatives and their nano-legislation.

Nowadays, the only thing plain to most of us is that the law is never clear and unambiguous. It's voluminous, exhaustive and more like the tax code than the Ten Commandments.

Voltaire was right. Common sense is not so common. Maybe even less so the more technology becomes part of our daily lives and the more legislators try to regulate it.

US Court of Appeals for the Third Circuit: United States v. Fullmer et. al.

We live in very contentious times. The red-state-blue-state divide is political, geographical and cultural. Debate about issues is frequently obscured by the politics of hate, by innuendo and by ad hominum attacks on those who speak out on the issues. Whether you support Rush Limbaugh or Al Gore, Sara Palin or Barack Obama, there seems to be way less common ground than in times past—and way less interest in even finding it.

Everything has become a crisis. Everything has become an issue that cannot be compromised. And everything is magnified and disseminated exponentially, courtesy of the worldwide web. Just a click away, a wonderful and dreadful thing the web: both a fountain of breaking news, information and learning and a cesspool of violence, pornography and hatred all at once.

Perhaps there’s no other tool with the power to destroy lives and reputations so easily. Bloggers can be indifferent to facts. Rumormongers can ruin lives with a well placed post. And anyone with a computer can upload their own demise on line or set in motion events that lead to the demise of others.

Somewhere between on-line beheadings and spam, we find US. v. Fullmer.

The case is about the activities of Stop Huntingdon Animal Cruelty (SHAC) and six individual defendants (referred herein collectively as “SHAC”) who were either employees, principals or in some way associated with SHAC. SHAC was formed in 1999. It has been uncompromisingly opposed to Huntingdon’s research with animals and committed to closing its laboratories. According to SHAC, Huntingdon was a purveyor of animal cruelty in the interest of science and corporate profits. Its abuses of animals were depicted in a surveillance videotape (viewer discretion advised) obtained by someone posing as a Huntingdon lab technician. When aired on British TV, it led to a spate of protests and the birth of SHAC-UK and subsequently, its US counterpart after SHAC’s relentless campaign caused Huntingdon to relocate to the states.

SHAC’s opposition to Huntingdon was not based on the actions of Gandhi or Martin Luther King. It was something new. Something born out of the cyber age. It targeted Huntingdon and companies that dealt with it, from accounting firms, bankers and realtors, to Huntingdon board members, stockholders and employees, including their wives and children. SHAC used its website as a bludgeon. Its take-no-prisoners, scorched-earth approach to its mission was incredibly effective. And frightening. As defendant Gazzola put it, “this is the most successful campaign in the history of the animal rights movement and it’s precisely because we’re pushing the limits and we’re tired of standing around holding signs and yelling at buildings and writing letters and not getting anywhere. We’re gonna do what we have to do in order to be effective and in order to save lives.”

The court’s opinion chronicles a sampling of the SHAC defendants’ activities. Its web postings included the following:

-Coordinating protests;
-Encouraging direct action (both legal and illegal, the illegal kind being both lauded and disavowed simultaneously);
-Instructing economic sabotage (including step-by-step how-to instructions as well as posting times for coordinated electronic assaults on corporate servers and fax machines);
-Listing accomplishments (such as people and places that had been attacked or acquiesced to SHAC’s demands); and
-Promoting vandalism (or at least excusing and appreciating it as a natural overflow of anti-Huntingdon outrage).

In a message to all associated with or employed by Huntingdon, defendant Harper used the backdrop of successful personal and institutional attacks to put Huntingdon and its business partners on notice of SHAC’s reach: “animal abusers …may be safe from the cops, the army, and the FBI…they are not safe from us…If no one else will treat them like the criminal scum that they are, at least we will…It is time to go beyond our fear of reprisals.”

Given the contents of the surveillance video, some might find such hard-edged tactics acceptable. But there was more. There were physical attacks and protests at board members’ homes. There were personal threats to them. To their children. Home addresses were published on the web. Phone numbers were published. Houses were flooded, windows smashed and neighbors intimidated. There was the posting of the “Top 20 Terror Tactics.” There were death threats by email and phone. And there was a state of fear that was nurtured and encouraged by SHAC.

SHAC’s web page, while always disavowing illegal activity, sympathized with its supposed unknown, more violent compatriots, and published instructions about how to avoid detection or arrest for such activity (even a cursory reading of the court’s decision is like a manifesto on modern economic warfare by cyber means—in many ways, it’s as disturbing as the Huntingdon video). Those targeted lived in abject fear for their lives, some to the point of arming themselves, others to the point of surrender, acquiescing to SHAC’s demands rather than resisting them alone.

Defendants were eventually charged and convicted of a variety of offenses, including conspiracy to violate the Animal Enterprise Protection ACT (AEPA protects those who use animals for testing from certain forms of animal-rights activity), conspiracy to commit interstate stalking as well as three substantive counts of stalking.

On appeal, defendants argued, among other things, that the convictions violated their First Amendment right to engage in civil disobedience and to voice their objections to Huntingdon’s activities. The court disagreed. While some postings on SHAC’s website were protected speech, notwithstanding it was “speech that many find offensive and uncomfortable,” other posts which “coordinate electronic civil disobedience and disseminate the personal information of individuals employed by Huntingdon and affiliated companies are more problematic.” Such communication was not protected speech and some “constituted ‘true threats.’”

As the court observed, “viewed in context, the speeches, protests, and web postings were all tools to further their effort” and were not speech protected by the First Amendment. They were crimes. Accordingly, the individual defendants received sentences ranging from one year to six years in prison.

We are left with a number of questions: Are these people heroes in the animal rights movement? Should they be applauded for putting their lives on the line for their beliefs (even belatedly, since on line, they denied personal involvement)? Are they simply zealots who did what was necessary to save animals?

Or are they thugs? Bullies? And political / business terrorists?

Those on the receiving end of their “protests” would vote for the latter category. Many who share SHAC’s views might see them as visionaries. But the question remains: What type of society are we evolving into?

Maybe the ends justify the means when it comes to animals. How about when it comes to global warming? To illegal immigration? To mandatory vaccines for H1N1? To gun control or legalizing marijuana?

Are we inexorably on a road that takes no prisoners in a winner-take-all battle over everything? Or have we already crossed the Rubicon when it comes to civil discussion and the common good?

Sometimes it looks and feels that way. Sometimes it looks and feels like we are willingly letting the common ground beneath our feet slip away, completely indifferent or oblivious to the fact that we are falling into something much more dangerous and intolerant and insidious—all in the interest of advancing THE cause.

Which, of course, says something either about our lack of powers of persuasion or our inability or unwillingness to listen to the other side. Or to lose gracefully. In the market place of ideas that is America, the wheat has always been separated from the chaff, which historically has brought out the best in America, and which hopefully, will continue to do so even as the internet has the potential to bring out the worst.

Still, we should be glad about this uniquely American problem because freedom of speech can only be abused where it exists in the first place.

New York State Court of Appeals: People v. Buchanan

It was Mr. Bumble in Charles Dickens’ Oliver Twist who first said “the law is an ass” after he was told “the law supposes that your wife acts under your direction.” His point was plain: reality and the law frequently don’t see eye to eye.

There are times when courts make rulings based on constitutional law, state law or even some ethereal philosophy that causes us to raise an eyebrow rather than see the point. Perhaps this is such a case.

As the dissent describes him, defendant Ingvue Buchanan was “a man in his thirties who apparently stands more than 6 feet tall and weighs over 300 pounds.” Defendant was accused of murdering a 14-year-old girl by strangling her. He was tried before a jury and convicted of second degree murder (the highest count chargeable in New York State).

Buchanan appealed and the case made its way to New York’s highest court. The basis for the appeal: the trial judge made Mr. Buchanan wear a stun belt during trial. It is a form of electrical restraint that “can deliver a shock should there be a problem.” The stun belt was worn beneath defendant’s clothes, and unlike shackles, could not be seen by the jury.

At trial, the judge told defendant Buchanan he was requiring him to wear the device as a matter of policy because of the seriousness of the charges against him. Defendant personally objected, telling the court “I have done nothing to warrant this." While the trial judge did not disagree with defendant, he still required him to wear the belt “in the interest of being overly cautious for security.” Seemingly not unreasonable given defendant’s size and the charges against him.

After a day of trial, Buchanan complained that the device was “uncomfortable.” So the court had it examined. Then the next day, out of an abundance of caution and judicial sensitivity, the judge obtained a report confirming that there was no medical reason that would prevent Buchanan from wearing the belt. And so he wore it through the duration of the trial and the guilty verdict rendered, with no shock ever having been administered, except, perhaps, to the parents of the murdered 14 year old.

Anyway, defendant argued that the stun belt “deprived him of due process of law” under both the US Constitution and state law because the US Supreme Court has held that “the Due Process Clause prohibits a state from confining a defendant in ‘visible shackles’ during a criminal trial, unless a ‘special need,’ based on facts specific to the case is shown.” The prosecutors argued that unlike shackles which can be seen, no one saw the stun belt and no jurors knew about it, so there could be no violation of defendant’s rights.

In its infinite wisdom, New York’s highest court concluded that it need not reach the constitutional issue since “as a matter of New York law...it is unacceptable to make a stun belt a routine adjunct of every murder trial, without a specifically identified security reason.” Since the stun belt was a matter of the trial judge’s “policy,” and not a stated finding with respect to this defendant’s need for potential restraints, a new trial was ordered.

Simply put, a 6 foot 300 pound man accused of strangling a 14-year-old girl had his conviction overturned because he had to wear a hidden restraining device that was never activated and never administered a shock.

It’s hard to know how to process this decision, but some perspective is warranted: Is wearing the device so offensive—like making a man wear women’s underwear—that it’s even more offensive than a 300 pound man strangling a 14-year-old child, as the jury concluded? Does such an insult to Mr. Buchanan’s sensitivities warrant having his conviction reversed? Does due process under state law guarantee a defendant the right to be free from any inconvenience or precaution beyond confinement? Or are our sensibilities so exaggerated in these politically correct times that defendant’s offendedness from being made to wear the device actually outweighs the offense of murder?

As the lone dissent put it: “Defendant failed to show that the stun belt was visible to the jury or otherwise compromised the fundamental fairness of the trial; he never objected that the stun belt impaired his ability to communicate with his attorney or meaningfully participate in his defense. Since I therefore do not believe that defendant has shown any actual prejudice, I would affirm his conviction.”

So would most people. But the law is what the law is.

Niagara County Court, New York: People v. Ryan S. Smith

Tasers electrified the nation last year with the famous, “Don’t tase me, bro” incident out of the University of Florida. The device is back in another story that is electrifying court watchers.

Defendant Ryan Smith was a suspect in a kidnapping and an armed robbery. DNA evidence had been obtained from a can of soda the kidnapper had helped himself to during the course of the crime. Through good detective work and a series of procedural moves, the DA’s office had a court order to take a buccal swab for DNA from the defendant’s mouth, obtained and lost the sample, then applied for and received a second order to do it again.

Defendant declined to submit to the swab when cops approached him on the street, so they took him to police headquarters. Detectives tried to convince defendant to cooperate but Smith “firmly and obstinately objected to submitting to the authority of the Order. He said he had already given a sample and that they would have to ‘tase’ him to get another swab.”

Wrong thing to say.

The detective on the case called and conferred with the ADA in charge, who approved the use of necessary “minimum force” to obtain the sample. Considering their options, the cops ruled out holding the defendant down and forcing his mouth open, believing it potentially injurious to defendant and risky for them. So they set their taser on stun (“drive stun,” the least powerful setting) and asked Smith to reconsider. They told him it would be unpleasant, but he refused to allow them to take a swab. They told him they didn’t want to hurt him. He still refused. And after a final warning and refusal, they tasered as needed (four seconds), recorded the proceeding and got their swab. They then arrested Smith for Obstructing Governmental Administration (as if he didn’t have enough problems).

Citing cases which authorize the use of reasonable force in other circumstances, the court ruled that no Constitutional prohibitions were violated by use of the taser to obtain the swab. This was reasonable force (even if during their pre-taser conference with the DA’s office detectives neglected to mention that they were considering using the device). Now had the taser been used to cause pain to obtain the desired result, this would have drifted into unlawful use of torture. But as the court stated, “The defendant was forewarned, steps were taken to limit his risk of injury, and the device was used one time for a brief burst. There was no lasting damage or injury.”

For the court, defendant amped up the problem and was shocked by the solution.

As the court noted,

This case is perhaps best described as the “perfect storm” where the crimes being investigated were egregious, the evidence sought highly probative, the intrusion required was minimal, and with a subject who steadfastly refused to comply with a lawful court Order. Further, the officers, armed with the Order issued, repeatedly sought the subject’s compliance, explored alternative methods of obtaining the sample, repeatedly warned the defendant of the consequences of his refusal and took steps to minimize the pain inflicted and the potential for injury. There was not malice or desire to injure the defendant.

Accordingly, defendant’s motion to suppress was denied and the People could use the evidence obtained from the swab.

A stunning decision which will no doubt cause sparks to fly all over the political spectrum.

Wisconsin Court of Appeals, District IV: State of Wisconsin v. Michael A. Sveum

Technology races ahead as most of us long ago gave up ever trying to program our VCRs. Now there are blackberries, blogs and links, text messages and twitter, GPS Navigation and GPS tracking. The latter is the subject of the case at bar.

Can the police secretly attach a GPS tracking device to a suspect's car in his own driveway without violating his Fourth Amendment right to be free from unreasonable searches and seizures? The Court concludes the cops can and that no Fourth Amendment search or seizure even occurs.

Sveum was a repeat stalker. He did time for stalking Jamie Johnson in 1996 and began stalking her anew (with his sister’s help) even before his release from prison in 2002 (this guy may need a body cavity GPS installed). Police sought and received a warrant to covertly attach a GPS tracker to defendant’s car. Based on data collected, a warrant was obtained to search his home, and Sveum was charged and convicted of aggravated (second offense) stalking. He was sentenced to 7 and a half years. He appealed and challenged the use of the GPS tracking device to gather any evidence against him.

The GPS device in question is battery powered and was affixed to defendant’s car with a magnet and tape while it sat in his driveway. Defendant challenged the cops’ entry onto his driveway to install the device. The vehicle was then tracked for about five weeks. Sometimes the car was garaged at home, sometimes at work. The GPS unit was then physically retrieved to obtain a detailed satellite tracking history of its and its host vehicle’s whereabouts. The result was a complete itinerary of the defendant’s travels when he used his car and even where he parked it. He challenged the state's right to know where he parked in private.

What irony: The stalker stalked by satellite.

According to the court, “no Fourth Amendment violation occurred here simply because the police used a GPS device to obtain information about Sveum’s car that was visible to the general public.” Similarly, that the device was attached to the vehicle while in defendant’s driveway was not enough to render its use illegal; the driveway was not “protected ‘curtilage’” [enclosed land on the property]. And that garage locations were electronically noted hardly amounted to an improper search or violated any real expectation of privacy since old fashioned police observation could have netted the same results

The information gathered by the device gave probable cause for a search warrant of the home, and in the end, a jury found defendant guilty. So too did the Court of Appeals.

The Court did sound the warning about advances in technology, however, and acknowledge that it was

troubled the conclusion that no Fourth Amendment search or seizure occurs when police use a GPS or similar device as they have here. So far as we can tell, existing law does not limit the government’s use of tracking devices to investigations of legitimate criminal suspects. If there is no Fourth Amendment search or seizure, police are seemingly free to secretly track anyone’s public movements with a GPS device.

Good for the court. It ruled based on existing law but recommended that the legislature tackle the issue before technology runs amok by well-intentioned but overzealous law enforcement and other inquiring minds.

The rest of the details of this case are like the instructions to your VCR. Important but not relevant.

The bottom line is that there might be something on the bottom of your car and authorities may know exactly where you are at this very moment. So too may your wife or husband, your boss or your mother.

If you're worried, you would be well advised to look both under the hood and under the chassis the next time you pull out of your driveway or you could find your itinerary on YouTube, Google Earth or on a monitor at police headquarters or the Internal Revenue Service.

Welcome to the 21st Century.

U.S. Court of Appeals for the Fifth Circuit: United States v. Porter

There all kinds of new ways to commit crime: There’s identify theft, credit card fraud, computer hacking and stealing cable or satellite signals. There are also new ways to commit old crimes. Thanks to advances in color copying, anyone can turn counterfeiter with low or no overhead and just a little bit of ingenuity and determination. But as always, good art is in the eye of the beholder.

The question presented almost sounds existential: If you’re a terrible counterfeiter and no one will actually believe that your funny money is real, have you really committed a crime?

According to the court, a bad job is still a bad act and a C minus C note will still land you in stir.

Chrystal Porter was only too willing to participate in an ill-conceived plan to make some easy money and help her friends out of a jam. Joey Barret lived with Erica Horton. Barret owed Carlos drug money. When Barret couldn’t pay, Carlos began threatening the couple and their children. As a compromise born of necessity, Barret and Erica agreed to let Carlos use Erica’s color copier to make fake money to pay off the drug debt.

This was not top-shelf work. Color copies of each side of a hundred dollar bill were duplicated onto manila paper. The two sides were cut out and glued together, then crumpled to give them that genuine used look. Erica completed the masterpiece by drawing lines on the fakes to look like the magnetic strips on the real deals. Carlos needed a place to pass the bad bucks and Erica said she knew a cashier at Wal-Mart. Enter Chrystal Porter.

When Porter showed up at the house, Erica presented their art project and asked if Porter would accept the fakes at her register at Wal-Mart. After studying the bills, Porter concluded, “Yeah, this will work.” When Porter was on the clock, Erica showed up and bought $300 worth of gift certificates with the bogus bucks and Joey bought another $200. Needless to say, Wal-Mart discovered the scam almost immediately and within 2 days the cops were at Porter’s home where she spilled her guts and dropped a dime on Joey and Erica.

Porter was indicted, tried and convicted for conspiracy to manufacture and utter counterfeit US obligations.

Porter’s defense at trial was that this was such a terrible forgery it couldn’t be taken seriously and therefore the fakes couldn’t be considered counterfeit. As she put it, “the instrument that she specifically agreed to assist in passing did not sufficiently resemble genuine currency to be counterfeit” so it was impossible for her to be guilty of conspiracy. She went so far as to say her copies were no better than monopoly money and couldn’t fool anyone.

At trial, the case turned on the details of the jury charge. Defendant argued that the jury should have been told the following: “A bill is counterfeit only if it possesses similitude: it bears such a likeness or resemblance to genuine currency as is calculated to deceive an honest, sensible and unsuspecting person of ordinary observation and care when dealing with a person supposed to be upright and honest.” The lower court thought otherwise and instead charged that “To be counterfeit, a Federal Reserve note must have a likeness or resemblance to genuine currency.” The “likeness” was good enough for the jury and Porter was convicted.

Porter raised this argument again on appeal, making this fine distinction: “even though she conspired to pass fake $100 bills, she did not conspire to pass counterfeit $100 bills. In essence, she argues that, by refusing to instruct the jury using her definition of counterfeit, the trial court denied her the opportunity to present her main defense to the jury.” Put another way, Porter claimed she was such a bad criminal she didn’t commit a crime.

Not persuaded by the weight of her argument, the Court of Appeals found that the jury charge Porter wanted was appropriate only if she had been charged with violations of 18 USC Section 473 (requiring the perpetrator to acquire or dispose of such false obligations with “the specific intent that they be perceived ‘as true and genuine.’” Since Porter’s conspiracy charge was based only on violations of Section 471 (making counterfeit bills) and Section 472 (passing fake bills) all that was required for the bills to be considered counterfeit was “a likeness or resemblance to genuine currency.”

They may have been really bad bills, but they were good enough for the Feds, for the jury, and now, for the Appellate court.

Bad paper is bad paper. Or is it? The only thing it will buy you at Wal-Mart is time. On Wall Street, however, bad paper can still buy you a bail out.

Porter’s real mistake was not getting her MBA or heeding the Wall Street warning: DON'T TRY THIS AT HOME.

New York Supreme Court: Smith v. Walsh-Smith

It's a brave new world and YouTube is at the cutting edge. From the same computer you download directions or songs for your iPod, you can upload and stream videos to a worldwide audience. Now that's power! And possible trouble. Tricia Walsh-Smith is a case in point.

Tricia married Philip Smith, a man 25 years her senior. Philip started out as a theater usher and ended up president of the Shubert Organization, "the largest theater owner and operator in the United States." Notwithstanding his success, Mr. Smith is a very private man. Apparently, Mrs. Walsh-Smith had issues about the terms of their prenuptial agreement and about her husband's unwillingness to invest $250,000 in her theatrical production. Without his money, the show would not go on. These issues ripened into heated arguments, flying crockery and threats by the missus to malign Mr. Smith in the New York Post. True to her word, the Post got the dirt on Mr. S. As a result, he filed for divorce on the grounds of cruel and inhuman treatment.

She sued him back. She also availed herself to some self-help. Not satisfied that she was mustering the necessary leverage to obtain a favorable outcome or an out-of-court settlement to her liking, the angry wife took her beef to the internet. Having come to appreciate the value of a good production, she brought a film crew into the marital apartment, added music and subtitles, and trashed her husband on video. She then posted it on YouTube, which turned out to be her big break. The video was an "overnight sensation" and has been viewed more than three million times.

Fame has its cost, however. It is no easy task to prove cruel and inhuman treatment in divorce court, but Mrs. Walsh-Smith's internet histrionics gave Mr. Smith all the proof he needed. As the court stated, "He has been publically humiliated and embarrassed to an unprecedented extent." Mrs. Walsh-Smith claimed "she had no other option" because of her finances. The judge was not moved, noting that other spouses have been similarly challenged without resorting to the internet, and concluded that "it is hard to say defendant had no other choice when no one else before her had ever exercised that choice." Accordingly, the court granted Mr. Smith his divorce. As for Mrs. Smith, she might have gone where no woman has gone before, but she owes YouTube the credit for the outcome in her divorce.

YouTube is power: Become famous (or infamous) overnight. Jump start a career. Or attack your enemies (or your spouse) on a global scale from the convenience of your home. It might seem like a handy tool to advance your interests, but we are learning it comes with responsibilities. You can't use the internet as a weapon to humiliate or embarrass people with impunity. (In an unrelated but similar case, a Florida judge required two teens who had thrown a large drink at the drive-thru cashier—an activity its purveyors call "fire in the hole"—to post a groveling apology on YouTube after they first posted their own home-made video of their mean-spirited carbonated assault.) We'll see what new and inspiring or insipid ways the internet will be used tomorrow, and just how creative the courts will have to become to deal with it.

Until then, post at your own risk.