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.

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.

April 20, 2011

Emotional Distress: Baby Got Back

NY Appellate Division 2nd Department: Lynda Williams v. LI College Hospital

Think of this as nursery school:

Lynda Williams sued LI College Hospital after giving birth to her daughter. On the evening of her first day, baby girl Williams was placed in the hospital nursery where she spent the night. The next morning, hospital staff inadvertently delivered baby Williams to the wrong mom, and momma Williams received a mystery baby of her own. As the court notes, “the error was corrected that same morning and the infants were returned to their respective mothers.”

No harm, no foul.

Not quite, according to Ms. Williams.

Momma Williams learned that baby Williams was breast fed by the other mother before her return to the fold. Momma Williams was disturbed enough to sue the hospital. The court, however, determined that she was being a bit of a baby herself—or as the court put it, the plaintiff “failed to allege a cognizable cause of action to recover damages for emotional distress against the hospital.” Momma Williams claimed she suffered emotional distress because baby Williams “may have suffered injuries as a result of being breast fed by a stranger” (the not-so-succor of wrong-mother's milk).

Speculative injuries to the baby do not create a cause of action for emotional damages for the mom. That’s easy to understand and in keeping with the limits of such damages under New York law. But the court went on to say that “with respect to the hospital’s treatment and care of the infant, the hospital did not owe a specific duty directly to the plaintiffs.”

In other words, no case for mom for the hospital’s failure to keep abreast of its infant patient’s whereabouts.

Case dismissed.

This just wasn’t the mother of all hospital mistakes.

March 8, 2011

Cut and Paste Pervert

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…

August 16, 2010

New York Vehicle & Traffic Law: Tireless Wireless

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.

July 31, 2010

Indecent Exposure: No Crack in Existing Law

Criminal Court of the City of New York, Bronx County: People v. Martinez

The hot ticket on American Idol 2010 wasn’t the ultimate winner, it was General Larry Platt performing his original song, Pants on the Ground, as he rapped, “call yourself a cool cat... lookin’ like a fool with your pants on the ground.” The man is a seer! And now, we too shall be seers of judicially approved exposed underwear since the Criminal Court in the fashion capitol of the world has ruled that “the Constitution still leaves some opportunity for people to be foolish if they so desire.” Kudos for General Platt!

An April 20, 2009 Julio Martinez was charged with Disorderly Conduct for wearing droopy drawers “exposing underwear potentially showing private parts.” He moved in court to dismiss claiming the summons was “facially insufficient.” Examining the law and the evidence, the court concluded that the language of the Disorderly Conduct statute “did not intend to be used to regulate public dress,” only “conduct which affects the public tranquility.” While this might be a wedge (wedgie) issue which divides public opinion, blind justice will not be offended by nearly exposed behinds or by fruit of the loom with a view.

According to the court, the summons appears to be an attempt “by one police officer to show his displeasure with a particular style of dress” (a wedgie may have been the better way to go), and in the Big Apple, “people can dress as they please, wear anything, so long as they do not offend public order and decency.” Case dismissed. The law, at least in this case, is not an ass.

Apparently, unless there’s full disclosure, there’s no crime.

September 15, 2009

Age Discrimination: It Wasn’t Me!

U.S. Court of Appeals for the Second Circuit: Halpert v. Manhattan Apartments, Inc.

In New York, unless you’re in a union, are a government worker or have a contract of employment, you are an at-will employee. You can be fired for any reason whatsoever, except, of course, for the wrong reasons (the discriminatory ones proscribed by state and federal legislation and constitutions). Those protections extend to the hiring process as well.

Michael Halpert applied for a position with Manhattan Apartments Inc. (MAI) showing rental apartments . He was interviewed by Robert Brooks. Halpert claims Brooks told him he was “too old” for the job and sent him on his way. Brooks was not an employee of MAI. He was an independent contractor (a cost saving measure used by many employers to avoid giving benefits, and sometimes, to avoid coming under the mandates of federal or state laws by keeping the number of “employees” under the amount that triggers the laws applicability). Halpert didn’t care what Brooks was. He knew his rights so he sued MAI for age discrimination.

The lower court ruled in MAI’s favor, finding that the Age Discrimination in Employment Act (ADEA) “does not apply to independent contractors.” As a result, it dismissed Halpert’s case finding that MAI was not an employer under the definition of the ADEA.

Not so fast.

Employers may be able to reduce taxes, keep costs down and avoid providing health coverage by requiring workers to be independent contractors, but they don’t get a free pass for discrimination when that independent contractor is acting on the employer’s behalf. As the court concluded, if Halpert was interviewed by Brooks for a position with MAI, or MAI let Halpert believe he was being interviewed for a position with them (and not with Brooks) “an employer (MAI) can potentially be held liable for discrimination by an independent contractor (Brooks) who acts for the employer.”

Since the ADEA provides that “an employer may not ‘fail or refuse to hire...any individual...because of such individual’s age,’” MAI could be found liable if Brooks did in fact tell Halpert he was too old for the job. The court put it this way: That prohibition applies regardless of whether an employer uses its employees to interview applicants for open positions, or whether it uses intermediaries, such as independent contractors, to fill that role.” If Brooks had authority to hire, MAI couldn’t hide behind his independent contractor status to avoid liability for discriminating against Halpert. And that question can only be resolved when the nature of Brooks’ authority and relationship with MAI is fully explored.

Accordingly, questions of fact exist which could not be resolved by summary judgment and the dismissal by the District Court was vacated.

It’s good to know that a mere declaration of independence doesn’t insulate an employer from the actions of those it hires as independent contractors. If that were the case, everyone would be required to be an independent contractor, leaving employers free to act with impunity while letting their non-employees do whatever dirty work was needed. That is one giant loophole the court was not prepared to create and one most of us would consider sound public policy. In employment as in life, you don’t necessarily dodge the bullet by claiming “it wasn’t me!” Sometimes you’re responsible, even if you don't personally pull the trigger. That’s the way it’s always been, legal constructs like "independent contractor" notwithstanding.

As a footnote, it’s worth noting that Mr. Halpert prevailed in this matter pro se—without the assistance of counsel—or put another way, as an independent contractor. There’s a certain irony in that. One hopes it’s not lost on MAI or Mr. Brooks.

July 28, 2009

False Arrest: Busted for Bad Words

New York State Court of Claims: DePaula v. State

Like they say on TV, don’t try this at home if you’re not a professional.

Claimant is an attorney. He was a little late for Civil Court in Queens, having missed the first call of the calendar. Like many of us, he had a few cases on in court that morning. While sitting in the back of the crowded courtroom as the judge conferenced cases at the bench, his cell phone rang. Unfortunately, it was not set on vibrate. After less than a half minute of talk, he was approached by a court officer.

Rather than admonish Mr. DePaula, the officer confiscated his phone. As irritating as that may have been, he also advised the busy barrister that he could “get the phone back at about 1:00 PM” when court was in recess. Apparently, they really take the turn-off-your-cell-phone rules seriously in Civil Queens.

There is some discrepancy about what happened next: Attorney DePaula says that while he waited for his case to be called, the officer walked toward him. The officer claims that after he took the phone and was attending to his courtroom duties, DePaula was “staring at him” before he walked over. Both sides agree that when the officer approached, he told DePaula “you should know better.” In response, the attorney admits saying, “You’re just being a prick ” (by which he meant to convey that the officer was a “contemptible, disagreeable, obnoxious person”), while the officer claimed Depaula said, “in a loud nasty tone: ‘You know something, you’re a prick’” (which he treated as a “disruption” of the court proceedings taking place), whereupon DePaula was asked, but refused, to leave the courtroom. Both do agree, however, that DePaula was immediately arrested, handcuffed, removed from the courtroom and confined in a security office in the courthouse, giving new meaning to the term call waiting.

After fifteen or twenty minutes handcuffed incommunicado in the cooler, the officer returned. The cuffs were removed, the cell phone returned and a summons for disorderly conduct was issued. DePaula pleaded not guilty, went to trial on the discon charge, and was acquitted. He then sued in the Court of Claims for False Arrest and Malicious Prosecution.

According to the Court of Claims, “the elements of a false arrest cause of action are: (1) the defendant intended to confine claimant; (2) claimant was conscious of the confinement; (3) claimant did not consent to the confinement; and (4) the confinement was not otherwise privileged.” When there’s an arrest without warrant, the burden shifts to the defendant to “establish that the arrest was privileged,” thus validating a charge of disorderly conduct under Penal Law §240.20 (3). As it turns out, the court officer had a wrong number, and the arrest was held not to be privileged.

As the court politely put it, “however reprehensible the utterance Mr. DePaula chose to make, in a courtroom and addressed to a Court Officer, the statement alone did not, as a matter of law, amount to disorderly conduct. The law is well settled that the mere use of 'abusive or obscene language' in a public place does not constitute a violation of Penal law §240.20 (3),” as the Court of Appeals has already held. As for the claim of malicious prosecution, the court did not find the requisite “actual malice” and so dismissed that count. A hearing on damages was scheduled to follow.

It’s reassuring to know that the breakdown of civility in our society has transcended the streets, giving us all the right to speak our mind to whomever we want wherever we are, even within the hallowed halls of justice. That’s probably a good thing legally (and maybe it’s an inroad of sorts into the constraints of political correctness), but culturally it may leave something to be desired.

Still, if you’re going to speak your mind, be prepared to put in the time. Your rights often come at a cost. And sometimes, especially when it involves going to court, the cost is billed by the hour. Which is why such bold speech is probably best left to the professionals.

Just ask Mr. DePaula. But ask him nicely.


July 2, 2009

Due Process: Stunning Decision

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.

April 15, 2009

Employment Discrimination: The Fashion Police

U.S. Court of Appeals for the Third Circuit: Webb v. City of Philadelphia

How would you feel about getting pulled over by a cop wearing a hijaab—the traditional headcovering worn by Muslim women? That’s the question presented by Officer Kimberlie Webb of the Philly PD. A cop since 1995 and a practicing Muslim, she decided she wanted to wear such a headscarf “while in uniform and on duty.”

The Philly PD said “no” based on Department Directive 78 which severely restricts permissible police attire. For the police brass, a hijaab would be an unacceptable official wardrobe malfunction.

Undaunted, Webb filed a Civil Rights complaint with the EEOC and the Pennsylvania Human Relations Commission. Six months later, while that matter was still pending, she made a fashion protest and wore her hijaab to work. She was ordered to remove it, refused, and was sent home. The same thing happened the next day, and the day after. Disciplinary charges were brought against her and she was suspended for 13 days.

She then sued the City, the cops and the Police Commissioner for religious discrimination, retaliation and sex discrimination.

The District Court dismissed all of Officer Webb’s claims, finding that the standards set out in Directive 78 “promote the need for uniformity, but also enhance cohesiveness, cooperation, and the esprit de corps of the police force.”

The Circuit Court of Appeals explained the law on religious discrimination thusly: the employee must show: “(1) she holds a sincere belief that conflicts with a job requirement; (2) she informed her employer of the conflict; and (3) she was disciplined for failing to comply with a the conflicting requirement.” Both the District Court and the Circuit Court held that Officer Webb satisfied these requirements. But the inquiry doesn’t end there. Once satisfied, the burden shifts to the employer to show “either it made a good-faith effort to reasonably accommodate the religious belief, or such an accommodation would work an undue hardship upon the employer and its business.”

As the Philly Police Commissioner put it, enforcement of Directive 78 “is critically important to promote the image of a disciplined, identifiable and impartial police force by maintaining the Philadelphia Police Department uniform as a symbol of neutral government authority, free from expressions of personal religion, bent or bias.” Accordingly, cops cannot wear any religious garments with no exception for hijaabs. As the Court noted, the Commissioner’s reason for refusing wardrobe accommodations were “sufficient to meet the “undue hardship upon the employer” threshold that the Philadelphia Police Department was required to show.

Webb’s appeal to the Circuit Court was also dismissed.

As Jack Webb (no relation), Sergeant Joe Friday of Dragnet fame used to say, “Nothing but the facts, ma'am.”

To paraphrase, "Nothing but the hats, ma'am."

March 15, 2009

Assumption of Risk: Mosh Martyr

Supreme Court, New York County: Schoneboom v. B.B. King Blues Club


What do Kill Your Idols, Sub Zero and the Crumb Suckers have in common? They were all heavy metal bands (no offense to the bands if they take issue with the court’s characterization) playing B.B. King’s on August 3, 2006. Mr. Schoneboom was a big-bad-band fan. For him, you’re never too old for a little “slam dancing,” the more “aggressive” form of the ever-popular and intimate “moshing.” 36-year-old Schoneboom was a veteran of the slam-dance two step, having attended more than a hundred concerts where he frolicked in the mosh pits at least thirty to forty times.

The events in question took place during the Crumb Suckers set (in case you were wondering).

The night had begun pleasant enough. While Kill Your Idols was performing, plaintiff went to the lower level to get a better view of the slam dancing going on. A “good time” was being had by all as the fans bounced around off each other in a kinetic frenzy of fun and fisticuffs. After the set, plaintiff returned to his seat in the upper level, away from mosh central. Then Sub Zero came on. As Schoneboom describes it, the slam dancing now seemed “quite a bit more malicious.” Dancers were throwing themselves into non-participants, elbows were being thrown and celebrants were "taking potshots at perimeter people.” For this set, plaintiff remained in the demilitarized zone of the upper level.

But when the Crumb Suckers were about to come on, Schoneboom threw caution to the wind. He found his way to a spot 10 -12 feet from stage, directly in front of the moshkateers. At seven minutes into the performance, plaintiff “felt a shove from behind into the side of his knee which felt like a kick,” but didn’t see which mosher had mashed him. Plaintiff ended up with a knee injury and surgery. He then sued B.B. King’s.

Much to his dismay, the court slam-danced Schoneboom right out of court.

“If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed his duty” to exercise reasonable care. This is a longstanding rule of law that applies to all sorts of activities, including ball games, horseback riding and even samba dancing.

Schoneboom staked out his turf near the stage and the mosh pit only moments after having observed the more “malicious” slam-dancing that occurred when Sub Zero was performing. “Here, plaintiff not only elected to assume the risk of concert-going in a mosh dancing venue but was in the position, given his experience, to fully appreciate the risk.”

As for the injury, that he did not appreciate.

For Schoneboom court was a bust and there would be no dancing for dollars.

Case dismissed.

February 2, 2009

Voting Rights: Photo Finish

U.S. Court of Appeals for the Eleventh Circuit: NAACP v. Evon Billups, Superintendent of Elections

The great voter-photo controversy continues. This time in Georgia.

Just how burdensome is it to individuals living in the 21st Century to produce a photo before they can vote? According to the plaintiffs who challenged Georgia law requiring such onerous measures as proving you are who you say you are with an ID (even a free one paid for by the State if you somehow managed to live your life in America without possessing some sort of photo ID), it is the equivalent of a poll tax and worse, and therefore in violation of the Twenty-Fourth Amendment, of the Equal Protection Clause, of the Fourteenth Amendment, of the Civil Rights Act of 1964, of Section 2 of the Voting Rights Act of 1965 and of the Georgia Constitution.

A photo ID?

Have we become so sensitive (senseless?) that merely requiring voters to show a confirming photo to vote could be thought so burdensome and discriminatory as to invoke monumental claims of constitutional and legislative infringements? Or are we not prepared to deal with the fact that voter fraud might be occurring right here in the good ole U.S. of A.

Well, there is still some common sense afoot in the common law and the Court of Appeals ruled that the minimal burden imposed by the voter-photo law was far outweighed by the state’s interest in “protecting ‘the integrity and reliability of the electoral process.’”

Here’s the bottom line: “The ordinary burdens of producing a photo identification to vote, which the Supreme Court described as ‘arising from life’s vagaries,’ do not ‘raise any question about the constitutionality of’ the Georgia statute.” Accordingly, voters in Georgia, as in Indiana (and 5 other states), will have to reach into their wallet for their picture before they cast their ballots. Hopefully, they will survive the trauma.

But will the nation survive this negative assault on our electoral process? Is this a portrait of an empire in decline entering the darkroom of disenfranchisment? Or merely a snapshot that has exposed the voter to the brutal truth that the camera doesn’t lie, even if some voters do.

Show ‘em a picture already!

With so many hotly contested elections and legal challenges ending in photo finishes, maybe we should all just smile and say “cheese” before we poke a few chads or pull the lever.

That’s how I vote on this one.

September 8, 2008

Free Speech: Dying to be Famous

U.S. Court of Appeals for the Sixth Circuit: Phelps-Roper v. Strickland

Here’s the good news: Common decency still has a recongnized place in America, notwithstanding indicators to the contrary.

Topeka Kansas-based Westboro Baptist Church cannot protest at funerals in Ohio. These are the lovely people who believe God is punishing America for the sin of homosexuality by killing Americans, including soldiers. These “church” members believe that “protesting at funerals is an effective way to convey the message of their church.” To make them even more effective messengers, their preferred venues are funerals of soldiers where, as we’ve seen on TV, they share such inspirational messages as “God Hates Fags,” “Thank God for Dead Soldiers” and “Thank God for 9/11.”

Ohio law proscribes protests at funerals. It’s been the law since 1957 with two amendments since. The original law regulated picketing at funerals and funeral processions. The amendments put time limits on protests (from one hour before to one hour after the funeral), specified a 300 foot buffer zone for permitted protests and expanded the definition of “protest” to include “other protest activities.”

Plaintiff, the charming Shirley Phelps-Roper, contended that she wanted to protest at Ohio funerals in the future and that the law violated her Constitutional right to free speech. She had been protesting at funerals for quite some time making a name for herself and for her church along the way.

While the District Court struck down that part of the statute that prohibited protests at “funeral processions” (since it created a “floating buffer zone” which was Constitutionally overbroad) it upheld the rest of the law. So too did the Court of Appeals. It found that the Funeral Protest Provision was content-neutral (no one could protest at funerals, not just the loving members of Westboro Baptist); it served an important governmental interest—balancing the First Amendment rights of protestors with the rights of funeral attendees to grieve, memorialize and gather in honor of the deceased, and; the funeral protest provision is narrowly tailored—300 feet away and no protests from one hour before to one hour after. As the court noted, there are other ways for these protestors to get their message out and “Phelps-Roper is not entitled to her best means of communication.”

Here’s the really sick part: Ms. Phelps-Roper “does not claim that funeral protests are [even] her most effective channels of communication” or that “mourners at a funeral are...her primary audience.” For her, a “funeral is the occasion of her speech, not its audience.”

Well isn’t that special.

Solidiers die and at the moment of heart-breaking grief and remembrance, Phelps-Roper sees her chance for 15 minutes of fame by reviling the dead with hate-filled venomous speech. Pathetic. But still protected. Partly.

Maybe Westboro Baptist would be better off knowing what God loves rather than what it claims God hates. After all, the Bible says we should “comfort all who mourn,” and that those who do so will be called “oaks of righteousness.” Those who do what Phelps-Roper and her “church” do are more like poison oak. And if they really believe what's written in the Bible, they will have to answer for spreading it in God's name.

August 12, 2008

Sex-Change & Taxes

U.S. District Court for the Southern District of New York: Casillas v. Daines

It’s only money, except when you’re looking for Medicaid to pay for gender reassignment, or what was previously known as a sex-change operation. Without the state’s cash, Terri Casillas could not obtain the operation "she" claimed she needed. The state refused to pay. The court refused to make the state pay.

Ms. Casillas was born male but identified as a woman from age 16 and lived as one from the time she was 20. When she was about 28, she was diagnosed with Gender Identity Disorder (GID or transsexualism), a form of depression “defined by strong, persistent feelings of identification with the opposite gender and discomfort with one's own assigned sex (hence the need for gender reassignment). For twenty-four years Ms. Casillas underwent hormone therapy courtesy of Medicaid, which caused her to develop breasts and a “more traditionally female body.” When Medicaid funding ended, the plaintiff paid her own way. When she could no longer afford it, therapy stopped and Ms. Casillas “began to exhibit male characteristics.” This was the point of no return for Ms. Casillas, so she sued the New York State Department of Health to make them pick up the tab for the ultimate remedy: gender reassignment, i.e.,“vaginoplasty (removal of the penis and creation of a vagina) with orchiectomy (removal of the testes).”

It turns out there is a 1997 Department of Health regulation which restricts Medicaid payments for gender reassignment. Ms. Casillas claimed this limitation violated her federal right to obtain such a procedure, which was guaranteed under federal statutes and the US Constitution. The court disagreed. It found that the state can limit medical services based on criteria such as “medical necessity” or “utilization control” (control over the distribution of limited resources through Medicaid). Moreover, if the state had a valid medical reason not to cover such procedures, it didn’t have to. The state identified numerous concerns about gender reassignment, including that “serious complications” could result from such surgery and that the long-term effects of the lifetime hormone therapy that would be required were unknown. Accordingly, the state’s refusal to pay was neither irrational, discriminatory nor a violation of Ms. Casilla’s statutory or Constitutional rights.

In this age of breakthrough medical technology where there are procedures from butt, breast and calf implants, to male sexual enhancement or labiaplasty (look it up!), to cryogenics, the court seemed to recognize that valid lines need to be drawn with respect to state-funded health care and that Medicaid cannot pick up the tab for every medical procedure available. You can’t always get what you want under Medicaid, but you can get what you need.

Finally, Ms. Casillas argued that what she wanted removed surgically was akin to a mastectomy, where a breast is removed because of a medical condition affecting the body part. As she saw it, GID similarly affected a body part (by causing her depression and discomfort) and the surgery should be approved. Since the state pays for one procedure, it should pay for the other and the offending part should be taken off courtesy of Medicaid.

That argument did not cut it, according to the court. And neither would Medicaid.

The case was dismissed.

August 4, 2008

Free Speech: Signed Epstein's Mother

U.S. Circuit Court of Appeals for the Eleventh Circuit: Frazier v.Winn

In the 70's TV show Welcome Back Kotter, Juan Epstein always had a note for his teacher. And every note was “signed Epstein’s Mother.” That won’t cut it in Florida public Schools where the state Pledge Law requires public school students from K to 12 to recite the pledge at the beginning of each day. The only way to be excused from this obligation is by an authentic written request from the student’s parent. Once you submit a note, you can exercise your right to remain silent during the pledge, but the law still requires you to respectfully stand at attention.

Cameron Frazier thought he was old enough to take a stand on sitting out the pledge. The high-school junior challenged the statute claiming the Pledge Law violated his First Amendment rights. The court’s answer to his objection was basically “Sit Down!”

Mr. Fraizier claimed the statute “robbed him of his right to make an independent decision.” The court disagreed. While it overturned that part of the statute that requires students to stand if they opted out of the pledge (the constitutional right to sit during the pledge was long ago established), it determined that the Pledge Law is “largely a parental-rights statute.” Accordingly, it concluded that “the State’s interest in recognizing and protecting the rights of parents on some educational issues is sufficient to justify the restriction of some students’ freedom of speech.” The only way out of the pledge for Cameron Frazier was a real note, signed Frazier’s mother.

Depending how you score this, it’s either one against the rights of free speech, or one for the rights of parents. Funny how age and circumstance can affect your view of what is and isn’t constitutional. Now if only the courts would rule on our children's right to opt out of cleaning their rooms or taking out the garbage...


June 27, 2008

Guns & Ammo: The Right to Bear Arms

U.S. Supreme Court: District of Columbia v. Heller

Here’s what the Second Amendment says: “A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” The debate between advocates of gun control and defenders of the right to bear arms has focused on whether, as gun controllers read it, the Second Amendment guarantees that right to a “well regulated Militia” (whatever that is), or as gun owners see it, to individuals, since “the right of the people to keep and bear Arms shall not be infringed.”

In another 5 - 4 decision, the Supreme Court took dead aim at the question and put the issue to rest. Kind of. It said the DC law which prohibited the registration of hand guns (to deter their purchase), required individuals to keep lawfully owned guns unloaded and disassembled or rendered inoperative by a trigger lock even in the home (making them worthless as tools of self defense), violated the Second Amendment. Such a restrictive law is really a prohibition of handguns, and the court shot it down.

The court went on to emphatically state that the Second Amendment protects an individual’s right to possess a firearm unconnected with service in a militia, but still recognized that the right is not unlimited, and that reasonable restrictions and regulations (such as carry permits, prohibitions on gun ownership by felons or the mentally ill) have been (and can be) upheld under the Second Amendment.

The debate about our individual right to bear arms is over and the Supreme Court has given gun ownership advocates new ammunition to strike down unlawful restrictions on handguns. It remains to be seen if legislators have the creativity to enact laws (see U.S. Court of Appeals for the Second Circuit: City of New York v. Beretta U.S.A. Corp.) which keep guns out of the hands of criminals without infringing the guaranteed right of law-abiding citizens to own one.