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Courtweek.com – Archives: 2011November 1, 2011The Law of Post-Halloween Legal StandardsToday is All Saints Day or All Hallows, a holy day of obligation for some. To others, it is just the day after Halloween — a day they neglect was as quickly as merely All Hallows Eve. Some spend All Hallows recovering from the revelry of the night earlier than, and some are still on the streets in the wee hours of the holy day. Our Case of the Week examines as quickly as such alleged citizen on the streets and the unfortunate lesson she realized about differing standards of legal evaluate in a California appellate choice handed down last week.Let’s Make a DealAngelique Bongiovanni found herself in the authorized system in 2009, charged with possession of methamphetamine in two separate cases. In a deal that might come back to hang-out her on the day after Halloween, she made a plea discount in one of many cases. Under the plea settlement, Ms. Bongiovanni pleaded no contest, and was positioned on probation for 3 years. As an added bonus, her 365-day jail sentence was suspended to run concurrently with the sentence from her different drug bust.It seemed like a good deal on the time, and it will have been…if solely she hadn’t allegedly been out with the witches, warlocks, goblins, and alleged gang members on the streets of Los Angeles on All Hallows 2009.All Hallows HijinksOn Nov. 1, 2009, Wendy Diaz lived with her husband and three children in a Los Angeles neighborhood with a gang problem. Perhaps not unlike Chauncey and Wadsworth combating over tee times, the correct process for shaking martinis, or the easiest way to coach a polo pony, Ms. Diaz’s neighborhood confronted fights from the gents and girls of the rival gangs, “Vincent Town,” and “Columbus Street.” Police arrested a Columbus Street gang member for breaking into the Diaz residence.After taking her kids trick-or-treating on Halloween evening, Ms. Diaz ventured exterior at approximately 1:00 within the morning of All Hallows to look for a good friend parking on the road. Instead, Ms. Diaz mentioned she noticed Ms. Bongiovanni accompanied by a companion in a pumpkin costume.According to Ms. Diaz, Ms. Bongiovanni proceeded to have interaction in an expletive-laden tirade of threats. To accommodate the mild readers of Courtweek.com who would somewhat witness a debate between Chauncey and Wadworth on one of the best ways to make covert contributions to the Republican National Committee as a substitute of putting up with the vile threats of alleged gang members, we will attempt to sanitize the vulgarity of Ms. Bongiovanni’s alleged utterances.Ms. Diaz said Ms. Bongiovanni approached her and called her an [expletive deleted] snitcher, including, “You been [expletive deleted] snitching.””You and your loved ones are coming down,” Ms. Bongiovanni said allegedly, as she is alleged to have added for emphasis, “You [expletive deleted] rata,” and “[expletive deleted] all biccicletas.”To assist our readers in appreciating the complete taste of Ms. Bongiovanni’s supposed soliloquy, we should always observe that each deleted expletive is a version of the same slang word referring to an act of sexual intimacy. In addition, “rata” can discuss with a Soviet fighter airplane from the Thirties, vegetation from the Metrosideros genus in New Zealand, or rat in Spanish. We’ll allow you to determine which one Ms. Bongiovanni might need meant. Also, biccicletas is a derivation of the Spanish word for bicycles. Seems innocuous enough. However, in Ms. Bongiovanni’s case, People v. Bongiovanni, California’s Second District Court of Appeal noted biccicletas was additionally a term Columbus Street gang members used as a sign of disrespect or “dissing” in gangspeak when addressing the upstanding residents of the Vincent Town gang.Ms. Diaz reported the incident to police the identical day and gave legislation enforcement a description of the woman who threatened her. She then recognized Ms. Bongiovanni from a photo line up. Police knew Ms. Bongiovanni to be a member of the Columbus Street gang for nearly a decade and that she went by the gang name, “Diabla.” It wasn’t troublesome police work…Ms. Bongiovanni sported Columbus Street gang tattoos on her physique. If that weren’t enough, police said she also admitted she was a member.Winning 10-2?However, nifty tattoos however, Ms. Bongiovanni denied she was a member of the gang at trial. In addition, Ms. Bongiovanni noted she was roughly 50 pounds heavier than Ms. Diaz had described her. Then once more, it was Halloween, and together with her pal in that pumpkin costume, she probably received plenty of sweet. Despite Ms. Diaz’s testimony and police testimony citing varied Columbus Street gang activities including murder, assaults, car theft, and narcotics distribution, the jury deadlocked, and it is vote was 10-2 in favor of acquitting Ms. Bongiovanni. The courtroom declared a mistrial and thus granted prosecutors’ movement to dismiss the costs pursuant to California Penal Code part 1385.So, it was time for Ms. Bongiovanni to do the pleased dance. Sure, she was on probation, however the charges were dropped. No probation violation there…or so she thought.At an ensuing probation violation listening to, Ms. Bongiovanni argued she had not violated her probation within the All Hallows morning incident. She claimed the entire thing was a case of mistaken id, and she argued the jury’s 10-2 vote in her favor confirmed she hadn’t done anything mistaken.Most members of the jury could have believed her, however the choose wasn’t shopping for it. More importantly, for functions of sending Ms. Bongiovanni to the slammer for a probation violation, the opinions of those 10 jurors didn’t matter.You see, California probation violation determinations differ from a felony trial in that the fact-finder in a probation violation listening to is the choose — not a jury. In addition, where in a legal trial, the authorized commonplace is proof past an inexpensive doubt, in a probation violation listening to, the standard is only a preponderance of the evidence. In different words, there is often a fair amount of doubt as to whether you probably did it, but when the judge weighs the evidence, and there is extra evidence indicating guilt somewhat than innocence, you lose.In Ms. Bongiovanni’s case, the decide noted the cops testified at trial that she was a member of the Columbus Street gang, a Columbus Street member was arrested in reference to the break-in at the Diaz house, and that Ms. Diaz identified Ms. Bongiovanni as the lady who threatened her. In the minds of 10 of 12 jurors, that wasn’t enough to show something past an affordable doubt. However, under the preponderance of the proof commonplace, that’s all of the decide wanted.In upholding the trial court’s determination that Ms Bongiovanni violated her probation, California’s Second District Court of Appeal wrote, “Appellant’s argument that a jury vote of of 10-2 for acquittal supports her credibility is not persuasive because the actual fact finder in the probation violation hearing was the trial choose, not the jury. Because probation revocation differs considerably from felony prosecution and the details supporting the revocation want only be proved by a preponderance of the proof, we find substantial proof to help the trial court’s finding that the appellant violated her probation.”So, Ms. Bongiovanni had her probation revoked, and it was three years of incarceration for her. The ethical of this week’s Case of the Week: should you’re on probation and walking round with a large pumpkin on All Hallows, research authorized standards of review earlier than you go calling somebody an [expletive deleted] Soviet fighter aircraft. __________________________October 22, 2011The Law of Flying DwarfsThose readers who loved — or maybe did not take pleasure in — this writer’s On Trial column in The National Law Journal may remember the saga of Dave the Dwarf. He fought to save the Constitution…whereas saving his livelihood in dwarf tossing. To commemorate the 10th anniversary of Dave the Dwarf’s epic authorized battle–and because a Florida state consultant is now attempting to do within the legislature what Dave could not do within the courts–we now revisit the Law of Dwarf Tossing…and what it tells us about the fifth and 14th Amendments to the United States Constitution…in addition to legislative and regulatory drafting in the state of Florida.Big Fun in a Little PackageDavid Flood is a gentleman of considerably small stature: three foot two, to be precise. He’s additionally a Tampa, Fla., radio persona and quasi-celebrity. Known as Dave the Dwarf to his legions of little listeners and massive followers on Tampa’s ninety three.three FLZ radio, Mr. Flood additionally has had a facet enterprise, and that’s what made him a legal star. You see, for a charge, you could bring Dave the Dwarf to your birthday celebration, St. Patrick’s Day festival, bar mitzvah, or Millard Fillmore Inauguration Day celebration, and Dave would let you engage within the time-honored tradition of dwarf tossing.That’s proper, you can put little Dave in a harness and toss him to your coronary heart’s content material. Dwarf tossing was a cultural phenomenon within the Eighties. It was the largest thing since Members Only jackets. It seemed a good time was being had by all, as tiny torpedoes of humanity went airborne at parties.That was, until the Little People of America and their friends within the Florida Legislature intercepted the toss.Little LobbyistsNot everybody was amused by this zany brand of miniature fun. Among the involved populace was a public interest organization often identified as Little People of America, Inc. The non-profit organization provides help and knowledge to individuals of short stature, and states it’s the only dwarfism help group offering services to these afflicted with the entire over 200 types of dwarfism.Little People and others lobbied the Florida Legislature, and the result was the passage of Section 561.665, Florida Statutes, governing activities involving exploitation of people with Dwarfism in institutions promoting alcohol.Not all little folks supported the legislation, and considered one of them was Dave the Dwarf.Dave the Dwarf sued then-Florida Governor Job Bush in an attempt to overturn the regulation, arguing the legislation was an unconstitutional violation of his rights underneath the Due Process Clause of the 5th Amendment and the Equal Protection Clause of the 14th Amendment.Specifically, Dave the Dwarf argued in Flood v. Bush, No. eight:01cv02261 M.D. Fla. Filed Nov. 28, 2001, that his due process rights have been violated as a outcome of the law did not correctly define these coated by the regulation, making the law unconstitutionally imprecise. He argued also that the legislation violated his equal protection rights as a result of the legislation treated him in one other way than others. For occasion, you would be tossed, I could be tossed, and Oprah Winfrey might be tossed with an excellent degree of difficulty, but Dave the Dwarf couldn’t be tossed…or so he thought.Banned or Not?The governor’s attorneys swung into action in an attempt to toss Dave the Dwarf proper out of court. They argued dwarfs needed protection. Dave counted that was hogwash. Also, along with sustaining Gov. Bush should be dismissed from the suit, the Florida Attorney General’s Office argued that there was no constitutional violation as a end result of the law didnt really ban dwarf tossing.Turns out they had been proper.The regulation itself banned only “undertaking or permitting any contest or promotion or other type of leisure activity involving exploitation endangering the health, security, and welfare of any particular person with dwarfism” in establishments promoting alcoholic drinks. Nowhere did the regulation ban dwarf tossing specifically.Dave the Dwarf argued dwarf tossing was good for his welfare as a end result of he made money doing it. Note the language is “health, safety, and welfare,” as opposed to “health, security, or welfare.” Dave the Dwarf might need been higher off leaving the legislation alone, persevering with his aerial acrobatics, and arguing he was in compliance with the regulation because dwarf tossing promoted his welfare.As it was, the trial court docket tossed Dave out of the courthouse, holding the legislation did not ban dwarf tossing and that — although the legislation mandated that the Division of Alcoholic Beverages and Tobacco of Floridas Department of Professional Regulation promulgate regulations on the problem — they’d didn’t do it. While the regulators could have been out on the beach listening to Jimmy Buffet tunes and drinking margaritas, Dave the Dwarf may have been spending his days flying via the good and cozy Florida breezes.So why is Florida State Rep. Ritch Workman making an attempt to repeal the regulation while everyone from Jon Stewart to your quick Uncle Freddy is weighing in on the issue?Well, it appears those regulators lastly completed getting wasted away in Margaritaville, cruised on again house to Tallahassee, and did some regulating.The Oprah RuleThe Division promulgated Section three.048 of Chapter 61A of its rules, entitled, “Exploitation of Dwarfs.” Unlike their friends in the Legislature, the regulators did more exact drafting and included dwarf tossing particularly. The regulation supplied in subsection 2: “Any activity described as dwarf-tossing is specifically included inside these acts of exploitation prohibited by this rule.”Of course, there was additionally subsection 3, which might be known as the Oprah Rule. It provided: “Nothing contained herein shall be construed to ban dwarfs from engaging in non-exploitative sporting or recreational occasions of the type engaged in by individuals who are not dwarfs.”So now we’ve come full circle: Oprah Winfrey could be tossed if one has a big catapult, however Dave the Dwarf is, once once more, left out of all of the enjoyable…unless Rep. Workman has his means. His invoice, HB 4063, is pending in the Florida Legislature. In the meantime, you can catch Dave the Dwarf on his radio show, What Would The Dwarf Do?, where presumably, he isn’t being tossed…at least not yet.__________________________August 25, 2011The Law of Wiener WarsOnce the gentleman from New York’s Ninth Congressional District resigned his House seat for exposing his wiener, you might have thought you’d be finished with bad wiener jokes for some time. You could be wrong.This week, mighty corporate litigants have been battling it out in the united states District Court for Northern District of Illinois in a wacky wiener warfare. The case of Sara Lee Corp. V. Kraft Foods Inc., features costs of sizzling dog blasphemy. Sara Lee, the makers of Ball Park Franks, and Kraft, the pleasant folks bringing you the venerable Oscar Mayer wiener, both claim the opposite has disparaged its products in violation of federal and state law.Seriously although, all of us read Upton Sinclair’s The Jungle in school. Thus, everybody thinks hot canines are comprised of animal parts swept up off the factory ground anyway. How can one disparage a sizzling dog?Oh, I Wish I Were…Sara Lee fired the first shot in the Weiner War, suing Kraft in May 2009, claiming Kraft violated both the federal Trademark Act of 1946, 15 U.S.C. 1051 et seq., recognized commonly because the “Lanham Act,” the Illinois Consumer Fraud and Deceptive Practices Act, and different Illinois state legal guidelines.In its federal criticism, Sara Lee alleged Kraft claimed falsely that Oscar Mayer wieners had been the “one hundred pc pure beef scorching dog” when it knew Oscar Meyer wieners contained different mouth-watering elements, such as sodium lactate, sodium diacetate, sodium phosphates, salt, corn syrup, and dextrose. Sara Lee claimed non-beef ingredients comprised approximately 20 % of an Oscar Meyer wiener. Of course, Sara Lee conceded that virtually all of this non-beef 20 p.c was water.Sara Lee claimed Ball Park Franks have been deprived becausebeing the honest dudes they’re Sara Lee would not compete with Oscars little lies by claiming falsely that Ball Park Franks were 100 percent pure beef.But, Oscar Meyers alleged crimes towards humanity and sizzling dog harmony didn’t finish there.In advertising paraphrasing Oscar Mayers well-known jingles for its scorching dogs and bologna, Kraft claimed, The greatest tasting beef sizzling canine has a name. Its O-S-C-A-R, and These days, its Ball Park and Hebrew National who’re wishing they had been an Oscar Mayer wiener. In addition, Kraft invited prospects to Try the style that knocked the others out of the park.Just as it claimed the one hundred pc beef declare was false, Sara Lee claimed these comparisons against its hot dog have been false as well.Sara Lees legal professional, Richard Leighton of Washington, D.C.’s Keller and Heckman LLP, claimed the evil Oscar Mayer even cheated on taste tests, claiming testers were served boiled Ball Park franks on a paper plate with no bun, no ketchup, no mustard, nothing.It must have been a giant style take a look at error as a end result of the bouquet of the sodium lactate and dextrose really pairs nicely with mustard.Not only had been these claims placed in print and electronic media, Sara Lee claimed Kraft even put them on its Wienermobile, a automobile described by Sara Lee as a sizzling dog-shaped vehicle that promotes Oscar Mayer and its merchandise in interstate commerce.Have you ever seen the Wienermobile? This author has. It looks like a rolling phallic intercourse toy designed to appeal to the prurient curiosity in violation of the us Supreme Courts holding in Miller v. California.Sara Lee argued that, by making these allegedly false claims in interstate commerce, Kraft violated section 43a1B of the Lanham Act. Section 43a1B prohibits false or misleading promoting or marketing that damages one other’s product. In addition, Sara Lee argued these false claims violated the applicable Illinois state legal guidelines.Not surprisingly, Oscar Mayer noticed things differently.My [Fill within the Blank] Has a First NameMighty Oscar fought back, counterclaiming in opposition to Ball Park’s protecting corporate mom, Sara Lee. Kraft argued the one hundred pc beef was correct as a end result of, though Oscar Mayer contained additives, beef was the one meat in Oscar Mayer. In addition, Kraft believed it needed for instance Oscar’s beefiness due to the general public perception that sizzling canine include mystery meats.Damn you, Upton Sinclair!In addition, Kraft argued Sara Lee had its personal hot dog promoting shenanigans.In a company authorized battle example of Pee-wee Hermann’s famous retort, “I know you’re, however what am I?,” Kraft argued Sara Lee made its personal false claims about how a lot beef there was in Oscar’s tubesteak. In addition, Kraft argued Sara Lee mislead customers with taste exams by professional chefs proclaiming that Ball Park was America’s best franks.All jokes apart, the Wiener War in Sara Lee Corp. V. Kraft Foods Inc., could change the means in which firms market their products and establish limits for what retailers can say about their products and their rivals in advertising.Meanwhile, the court battle continues with weighty questions, corresponding to “Do a bunch of San Francisco chefs know anything about Chicago hot dogs?” and, if you thought sizzling canine litigation was unhealthy, just wait till companies start suing each other over other meats a lot of people hate.When commenting on the litigation, Sara Lee’s Ball Park product director, Chuck Hemmingway stated, “Simply put, we consider that these unfaithful statements are a bunch of bologna.”First, they attack Oscar’s hot canines, and now Oscar’s bologna? Mr. Hemmingway may need to watch out for the dashing Wienermobile. Oscar isn’t happy.____________________________August 12, 2011The Law of A&E’s Reality TV TroublesReality tv tends to get a lot of folks into plenty of bother. From going to the slammer for failing to pay taxes on reality winnings to taking pictures candy, innocent puppies with arrows, reality TV contestants have typically been fashions of bad habits. But what happens when it is the reality show’s community getting in trouble? Our Case of the Week examines what occurs when a actuality show insinuates falsely that a lady tried to smuggle drugs right into a jail via her vaginal cavity.Family DayMarlorita Battle was minding her own business visiting her husband, an inmate at the Riverbend Maximum Security Institution in Nashville, Tenn. Little did she know she was about to turn into a big, big star.On the day she chose to visit the jail, the A&E Television Network reality present, The Squad: Prison Police, was there, too. The Riverbend facility apparently had a drug downside, and there were allegations the contraband made its way into the jail compliments of visiting members of the family.It was time for some riveting reality TV drama.The episode of The Squad: Police Prison entitled, Conspiracy, began with Tennessee Corrections Special Agent John Fisher describing the Riverbend prison’s drug problem. He noted that an informant had indicated a girl was smuggling drugs into the prison frequently.”We’re expecting this lady today,” Agent Fisher said, as A&E splashed Mr. Battle’s face on the display screen.As Ms. Battle started what may need been a pleasant go to with her husband and small youngster, the A&E cameras moved in, and agent Fisher mentioned, “We’ve recognized the female subject and inmate,” as a mugshot of Ms. Battles husband is shown to tv viewers.Keystone Kops and the Nitty GrittyMs. Battle’s husband had the toddler on his lap, and the couple sat next to each other. Ms. Battle’s husband caressed her, after which Ms. Battle visited the restroom, causing Agent Fisher to use his supposedly glorious cop skills to discover out a crime was in progress. Not in distinction to the Keystone Kops, Agent Fisher and his bumbling band of merrymen swung into motion.”Hold on now, she’s going to the toilet,” Agent Fisher says, including, “Typically, these women hide stuff up their vaginal cavity [sic] after which go to the restroom to take it out. Now we’re starting to get to the nitty gritty.”The digital camera then reveals the doors to the toilet, triggering extra amazingly astute evaluation from Agent Fisherthis time its about the measurement of Ms. Battles bladder and her efficiency in the latrine.”There she is, proper there. See how briskly she went in there. She did not have time to pee,” Agent Fisher says.Apparently, Agent Fisher, unaware of a bygone period when gents and women would not utter the verb, “pee,” on national tv, has a particular mathematical formulation for computing travel instances for urine by way of the urethra and into the bathroom, hand washing, mirror verify, and egress from a restroom.Ms. Battle, allegedly carrying something in her hand, proceeded to kiss her husband, A&E provided a crashing cymbal sound to enhance the reality TV drama, and Agent Fisher exclaimed, “Some [expletive deleted] simply happened. I assume we obtained ’em. I think we received them.”It was time for the brave men of legislation enforcement to swing into motion with A&E there to capture all the zany enjoyable.First, they carried out a strip-search, and then, they positioned Ms. Battle’s husband in a so-called “dry cell.” Its referred to as a dry cell as a result of there’s no operating water, and thus, no method to do away with contraband.They stored Ms. Battle’s husband in the dry cell for 24 hours. He neither urinated nor defecated any contraband.After releasing Ms. Battle’s husband from the dry cell, Agent Fisher called the incident a “false alarm,” however he added more commentary during the closing credits of The Squad: Prison Police that would turn out to be significant in subsequent litigation. This is Courtweek, after allyou know someone’s gonna get sued.”If you’re soiled, in case you are smuggling in contraband, medication, cellphones, tobacco, then we’ll catch you. We might not get you today, maybe subsequent week, subsequent month, subsequent yr, however finally, we will meet up with you, and we’re gonna get you. That’s what we do,” Agent Fisher stated.Reality TV in CourtMs. Battle sued A&E Television Networks, Inc., and Wild Eyes Productions, Inc., the producers of The Squad: Prison Police, in federal district courtroom in Tennessee, alleging defamation and intentional infliction of emotional distress.A&E and Wild Eyes moved to dismiss the go nicely with, arguing on the defamation claim that The Squad: Prison Police was not capable of defamatory meaning, noting that the program doesn’t declare Ms. Battle dedicated against the law, but instead “accurately reviews the results of an investigation.”The court did not buy it.Noting the digital camera angles, the ominous music, and the made-for-TV commentary of Agent Fisher, U.S. District Judge Kevin Sharp wrote:”Even although the Program indicates that a search of Plaintiff revealed no medicine, a jury could conclude from the overall way that the Program is offered that Plaintiff was a drug smuggler who just happened not to get caught on September 12, 2009. Such an impression is enforced by Agent Fisher’s parting comments to the effect that whereas we’d not get you today, we’ll get you sooner or later if you are smuggling drugs into a Tennessee prison.”In rejecting the try by A&E and Wild Eye’s to dismiss Battle v. A&E Television Networks, Inc., the court cited also the us Supreme Court case of Milkovich v. Lorain Journal Co., and held that statements of opinion were not mechanically protected against libel and slander claims on First Amendment grounds.”After all, ‘expressions of ‘opinion’ may often imply an assertion of goal reality,” the court mentioned.The lesson we take from this week’s Case of the Week is that, earlier than airing a present, A&E may wish to ensure the subject is guilty of genital smuggling–or no much less than not put a cop on the air insinuating the innocent get together simply received fortunate on that one event. After all, they could just put a bunch of people on a desert island, have a some obnoxious folks become roommates, or have actually untalented individuals sing.________________David Horrigan is an lawyer, journalist, analyst at The 451 Group, editorial director at Courtweek.com, and former staff reporter and assistant editor at The National Law Journal. His articles have appeared also in The Washington Examiner, Law Technology News, The American Lawyer, The New York Law Journal, The San Francisco Examiner, Corporate Counsel, Texas Lawyer, Florida Lawyer, and Daily Business Review. E-Mail: 5, 2011The Law of Pig FumesHave you ever had a neighbor who cooked food they may have discovered tasty and scrumptious, but that emanated aromas harking back to aged Roquefort cheese and dirty child diapers left in a rubbish can within the sizzling sun? It could be most annoying, but would it not be unlawful? Would the pungent aromas be trespassing onto your property?Believe it or not, the issue has been litigated, and, in this week’s Case of the Week, we study whether or not varied airborne items–chemical particulate matter, sewage plant smells, and pig farm fumes–are trespassing after they waft onto your property. People might disagree, and that is okay. As we’ll uncover, the courts disagree as nicely.Organic AirOluf and Debra Johnson had decided to get again to nature. They transformed their Minnesota typical family farm into an natural farm, hoping to attain an organic meals certification that would enable them to charge extra for his or her farm recent merchandise.Soon the Johnsons were ready to get pleasure from their new natural Eden. As they started their new all-natural existence, they stopped using pesticides, and Mr. Johnson posted indicators across the property, letting everyone know that the Johnsons’ new tree-hugging Utopia was a chemical-free zone.There was only one problem. The neighbors hadn’t joined the eco-friendly bandwagon.The Johnsons might have embraced Mother Nature, but their next-door neighbor, the Paynesville Farmers Union Cooperative Oil Company, was nonetheless spraying away. Pesticides and herbicides drifted onto the Johnsons farm.Seeing the neighboring farm much like a chinchilla sanctuary may view a petrochemical plant as a neighbor, the Johnsons filed complaints in 1998, 2002, 2005, 2007, and 2008. The Minnesota Department of Agriculture cited Farmers Union 4 occasions for violating Minn.Stat. 18B.07, subd. 2b 2010, which made it illegal to use a pesticide leading to damage to adjoining property.Having had enough of chemical substances wafting onto their pristine, virginal, chemical-free land, the Johnsons sued in Minnesota state courtroom in January 2009, alleging, amongst different things, that Farmers Union dedicated trespass by allowing its chemical fumes to invade their property.A state trial court docket was unconvinced. It granted summary judgment to Farmers Union, on all claims, including the trespass declare, holding that trespass by particulate matter was not recognized in Minnesota.Leading the cost for Birkenstock-wearing lovers of fields and streams all over the place, the Johnsons appealed.The Law of Pig FumesIn rejecting the Johnsons’ claim, the trial court relied on the Minnesota Court of Appeals’ determination in Wendinger v. Forst Farms, Inc., 662 N.W.2nd 546 Minn. App. 2003, evaluation denied Minn. Aug. 5, 2003. The information resulting in the court docket battle in Wendinger are each home-owner’s worst nightmare.The Wendingers and the Forsts had been neighbors for years. They had also farmed their lands for years, and the Wendingers constructed a model new house on their land in 1984.In 1994, the Forsts entered into an agreement with Wakefield Pork, Inc., to construct and keep a pig farm to house Wakefields’ pigs. In a design sure to make anyone nauseous, liquid pig waste was stored in an outdoor concrete lagoon. The pig poo was then pumped and spread on the fields each fall.As the scents from farmyard feces filled the ambient air, the Wendingers started to complain. Then, they filed scores of complaints with state and native authorities. Finally, they sued.Among their allegations was a claim for trespass, arguing the pig fumes getting into their property constituted trespass.A trial court dismissed the trespass declare, and the Wendingers appealed. The Minnesota Court of Appeals affirmed, holding that the Wendingers’ declare was one for nuisance–not trespass–because the odors of which the Wendingers complained interfered with the use and delight of their land, not with their exclusive possession of it.The trial courtroom in Johnson used the Wendinger decision for the proposition that particulate matter traveling from one property to another could not represent trespass. However, the appellate court in Johnson held the trial court read too much into the pig fume determination.Pesticides are not Pig FumesAlthough the appellate courtroom in Wendinger used the phrase, “particulate matter,” the appellate court docket in Johnson held all particulate matter isn’t alike.”Nothing in our Wendinger analysis indicates that we intended the time period particulate matter to define a singular category of physical substances that may by no means constitute a trespass,” the court stated. Basically, the courtroom held pesticides usually are not pig fumes.”Unlike the plaintiffs in Wendinger, the Johnsons do not claim trespass based mostly on transient odors. Instead, they primarily complain that the liquid chemical substances that the cooperative sprayed into the air from neighboring fields drifted, landed, and remained on the Johnsons’ organic crops in detectable type, contaminating them.” Judge Kevin Ross wrote for the court docket.Where the Wendinger courtroom said there was no trespass as a end result of the pig fumes only affected enjoyment of the land, not possession of it, in ruling for the Johnsons, the appellate courtroom in Johnson held that insecticides can affect each possession and enjoyment.”The errant dispersion of pesticides, which include chemicals designed to have an effect on the land, can interfere with possession,” the court said.So, the subsequent time youre cooking your Aunt Betsys Garlic and Sauted Sardine Surprise, youre most likely okay–even if it does wreck the ambiance of your neighbor’s garden. But, if you spray Raid, and it leads to your neighbors Cheerios, he may just lawyer-up.______________________________July 28, 2011The Law of Protecting Celine DionHow necessary is protecting Celine Dion?After all, she sells hundreds of thousands of information, and heaps of middle-aged women adore her. However, there are millions more who would quite spend a weekend in an Iranian torture chamber than hearken to Ms. Dion sing the theme from Titanic for the 4,761st time.The girl may need some protection.Well, in a growth which will injury U.S.-Canadian relations and come as a shock to followers of syrupy, schmaltzy pop music, a federal appellate courtroom has held that serving as Celine Dion’s bodyguard doesn’t constitute an unique contribution of major significance in a subject of endeavor adequate to warrant the granting of a EB-1 visa.The BodyguardHad the courtroom heard the case of Kevin Costner’s character protecting Whitney Houston in The Bodyguard, the entire thing might need gone differently. Mr. Costner’s character had made a major contribution in the field of superstar private protection by serving as a U.S. Secret Service agent. Such a high degree of demonstrated ability and accomplishment might have introduced him a visa.But what if, as a substitute of being employed by the united states Department of the Treasury to be a part of elite squad of livesavers, Mr. Costner had been employed to protect the top-selling female Canadian recording artist of all time by the pride of Charlemagne, Quebec herself?Would the United States grant a visa to the person who had protected Canada’s fourth most famous export–next to Keanu Reeves in Bill and Ted’s Excellent Adventure, maple syrup, and people deeply disturbing Sarah McLachlan commercials with the abused puppies and kittens?Nikolaos Skokos thought they should.Mr. Skokos, a security consultant for Celine Dion, utilized to the United States Department of Homeland Security DHS for an EB-1 visa, and DHS rejected him. Apparently, DHS didnt assume protecting the vocal cords that brought Beauty and the Beast to heat the hearts of little youngsters was essential enough.To see what an affront this may be to Ms. Dion’s throngs of adoring fans, it helps to know slightly bit about the legal process behind granting visas to enter the United States.Legal TitanicIn addition to establishing a lottery for certain visas and dropping homosexuality as a basis for exclusion from the United States, the Immigration Act of 1990 created the EB-1 visa to attract immigrants with distinctive skills and expertise.The EB-1 visa has three sorts, one for multinational executives and managers, one for professors and researchers, and one for candidates of extraordinary capability. Two of the methods an applicant can show this extraordinary ability are displaying he had made original contributions of main significance to his field of endeavor under 8 C.F.R. 204.5h3v or displaying she was paid a excessive wage compared to others in her field beneath 8 C.F.R. 204.5h3ix.Not solely did DHS feel that protecting Celine Dion did not meet this commonplace of excellence, the U.S. District Court for the District of Nevada agreed with DHS, holding for the government and rejecting an attraction filed by Mr. Skokos.In the legal equivalent of running the Titanic into an icebergwhile listening to Celine Dion sing about it as Leo and Kate flail in the frigid waters of the North Atlantic, Mr. Skokos appealed to the us Court of Appeals for the Ninth Circuit in Skokos v. Department of Homeland Security, and fared no better.The appellate court held Mr. Skokos failed to determine that his work for Ms. Dion constituted an authentic contribution of main significance to the sphere of bodyguarding. In addition, the court docket held he failed to ascertain that he was paid more than most movie star bodyguards.The courtroom noted Mr. Skokos claimed he was excess of a bodyguard–he supervised guards, made security arrangements within the unique destinations where Ms. Dion shot her mesmerizingly dramatic videos, and offered around-the-clock safety for Ms. Dion and her household. Nevertheless, the court was unmoved that protecting the precious Canadian export was sufficiently important to get a visa.The court noted the high commonplace for granting an EB-1 visa, citing the case of Kazarian v. USCIS, where a physicist who had revealed articles, written a textbook, and lectured extensively didnt even qualify for an EB-1 visa as a outcome of his work–although satisfying the criterion for authorship of scholarly articles–did not set up that his work was of major significance in the subject of physics.But, is writing scholarly articles and lecturing on physics at universities actually as important as making certain the gaffer and the most effective boy do not snag Celine Dion’s Perrier from the buffet table?Of course, some folks have managed to prove they are necessary and achieved enough to get an EB-1 visa. Golfer Nick Price obtained one, but–unlike Mr. Skokos–he had received a quantity of championships, earned over a million dollars in prize cash, and he had Jack Nicklaus, Lee Trevino, and Hale Irwin execute affidavits supporting his position.If only Mr. Skokos had managed to get a raise from Celine Dion and proposals from Gladys Knight and the Pips.______________________________David Horrigan is an legal professional, journalist, analyst at The 451 Group, editorial director at Courtweek.com, and former workers reporter and assistant editor at The National Law Journal. His articles have appeared additionally in The Washington Examiner, Law Technology News, The American Lawyer, The New York Law Journal, The San Francisco Examiner, Corporate Counsel, Texas Lawyer, Florida Lawyer, and Daily Business Review. E-Mail: 20, 2011American Idol’s American LitigantMany contestants on the hit television present, American Idol, could consider Simon Cowell is a somewhat nasty fellow. He berates participants, calls them names, and usually makes individuals surprise if his momma taught him any manners. Nevertheless, most of those verbal salvo victims do not sue. But, one did, leaving us with the question: Does Simon Cowell’s boorish habits on American Idol violate Title VII of the Civil Rights of 1964?Effeminate Idol?In what some take as evidence of the decline of Western civilization, American Idol, the American spin-off of the British program, Pop Idol, has turn into one of the most profitable shows on television. Contestants participate in singing competitions to win recording contracts, and the winners, together with singers Kelly Clarkson and Carrie Underwood, have gone on to fame and fortune.Some of the contestants weren’t as talented. One of these contestants was Ian Bernardo.Mr. Bernardo first appeared on American Idol in 2006 on the opening show of the season. These season-opening audition shows function a couple of acts that may advance in the competitors and a few acts that can come close. They additionally characteristic performers with no cheap likelihood of development. These contestants–possessing little or no talent–apparently appear to supply comedic material by making fools of themselves. Apparently, Ian Bernardo was considered one of these comedic contestants for the season.Not surprisingly, Mr. Bernardo was unsuccessful in his American Idol audition. However, Mr. Bernardo–who described himself as “having a non-conforming appearance based mostly on gender stereotype,” which a U.S. District Court interpreted to imply that “he seems to evolve to a stereotype of an effeminate homosexual male”–did make subsequent appearances on the present for the season finale and for Simon Cowell’s last appearance on the show in May 2010.The Courthouse AuditionClaiming he was an employee of American Idol Productions Inc. On every of his appearances, Mr. Bernardo claimed also that he was subject to discrimination and harassment because of his sex on every of his appearances. He claimed American Idol Productions workers told him to “homosexual it up” and that producers conditioned his look on Mr. Cowell’s farewell present on Mr. Bernardo’s willingness to be “outrageous, flamboyant, and actually gay.”Claiming he was additionally subject to epithets corresponding to “fag” and “homo,” Mr. Bernardo filed a criticism with the united states Equal Employment Opportunity Commission EEOC. He obtained a right to sue letter from the EEOC and sued American Idol Productions for violations of Title VII of the federal Civil Rights Act of 1964 and New York State legislation.American Idol Productions moved to dismiss the case, making several arguments. In addition to claiming Mr. Bernardo suffered no opposed employment motion, the producers argued Mr. Bernardo had did not make a case for hostile work surroundings beneath Title VII. Although the court docket conceded that–if true–the conduct at the Simon Cowell farewell present would constitute a hostile work setting, the court docket rejected Mr. Bernardo’s legal argument.Noting Title VII just isn’t a civility code and that discrimination on the idea of homosexuality just isn’t prohibited under Title VII, the court held Mr. Bernardo had not established that gender stereotyping, which is prohibited by Title VII, had so permeated the office in order to create a hostile work environment.The courtroom went on to dismiss all Mr. Bernardo’s claims, noting, “He, like everyone else with a modicum of talent or less who auditions for American Idol, selected to look on a program that was well-known for its judges’ insulting habits. Benardo went on the air after being told what was expected of him, and he knew what to anticipate. Having volunteered to be insulted, he can not now claim that he was sexually harassed.”There was no word as of press time as to any potential Ian Bernardo appellate audition at the Second Circuit._____________________July 10, 2011Suing After Ferocious Puppy PanicPeople are injured in Americas stores, streets, and subways all the time, making private damage regulation a giant enterprise. Its also one of the most contentious. Some instances could appear straightforward, however what if youre injured after being chased down a grocery store aisle by a charging canine owned by a store employee? Should the store be liable? Two Mississippi courts disagreed lately. Of course, it helps if you understand one thing in regards to the dog.Attack in the Artichoke AisleLenetra Outlaw decided to do some buying at her local Penny Pinchers low cost grocery store in West Point, Miss., in the future in Aug. 2006. An otherwise nice shopping day took an unlucky flip when Ms. Outlaw heard a sound that gripped her with worry and panic.She heard a dog bark.Ms. Outlaw then heard the terrifying sound of canine claws on Penny Pinchers’ floors because the presumably ferocious beast got here charging down the aisle. Ms. Outlaw, who mentioned she was extraordinarily afraid of canine, determined it was time for drastic evasive maneuvers.She ran down the aisle, made a flip, and sought refuge from her brutal foe. Not discovering a safe place within the aisle, she ran right into a freezer. Thinking that wasnt protected enough–after all, she in all probability saw the film, Cujo–Ms. Outlaw leaped on top of the freezer. In her Quixotic quest to flee Armageddon, Ms. Outlaw exacerbated a previously current hip injury, and determined to sue Penny Pinchers and Cindy Scott, the store manager who owned the assault canine.A Mississippi state court docket jury discovered for Ms. Outlaw and awarded her one hundred thirty,000, finding Penny Pinchers 70 % at fault and Ms. Scott 30 % responsible.At this level, you might be questioning, What’s so attention-grabbing about this case?Remember at the beginning we advised you it will help when you knew slightly concerning the dog?Baby Weiner DogIt seems this allegedly ferocious attack dog was nothing greater than a four-month-old Dachshund puppy. That’s proper. A little weiner dog weighing four pounds.It appears Ms. Scott introduced the adorable pet named Sophie to work every single day. The pleasant little pet had by no means attacked anybody before. Ms. Scott stored Sophie behind the counter–not to protect prospects, but in order that no one would step on the little factor. Rather than a 150-pound Rottweiler with a spiked collar, Ms. Outlaw jumped on prime of a freezer in mortal concern of a tiny weiner canine puppy.Given this reality sample, Penny Pincher and Ms. Scott determined an appeal was so as. The problem dealing with the Mississippi Court of Appeals in Penny Pinchers v. Outlaw: Did the presence of the four-month-old Dachshund puppy create an unreasonably dangerous condition at Penny Pinchers that day?The courtroom noted that the Mississippi Supreme Court had held that dogs usually are not harmful per se. The Magnolias State’s dog-loving supreme court held in Poy v. Grayson that to impose legal responsibility on a canine proprietor for personal injuries, a plaintiff must present the canine had a propensity for violence and that the owner knew it.The court docket in Penny Pinchers famous that the four-month-old, four-pound bundle of love, Sophie the Weiner Dog, had a clean report.Citing the Mississippi Supreme Courts 1969 choice in General Tire & Rubber Co. V. Darnell, the court docket went on to hold that a premises does not have to be fully secure from any hazardonly affordable safeand that the plaintiffs own actions could be a issue.”We acknowledge Outlaw’s extreme fear of dogs. However, we can not say that it was affordable for Penny Pinchers to anticipate that anybody, even somebody with an excellent fear of dogs, would have such a response to Sophie’s presence in the retailer,” Judge Thomas Griffis wrote for the courtroom.Thus, we feel confident in saying, when you hurt yourself jumping on prime of a freezer to flee a four-pound Dachshund puppy, do not trouble suing anyone as a end result of its most likely your own fault.__________________________June 29, 2011A Defamer’s Guide to ‘Dirtbag v. Dirtbag’What does it really take to slander or libel someone? The regulation of defamation can be complex, but a New York state court recently tried to sort out this weighty concern: What is a “dirtbag,” and is the term defamatory?The concern arose after a man named William Schumacher penned feedback that one other man, John Acheson, was “the biggest dirtbag” he had ever met in his life. Acheson sued Schumacher earlier than Westchester City Court in what, amusingly, could turn out to be a seminal case of black letter regulation. Apparently, no other U.S. Court has ever issued a reported choice on the issue of whether it is defamatory to name someone a “dirtbag.”Citing a New York precedent, the courtroom in Acheson v. Schumacher stated libel or defamation was “a writing or broadcast that tends to reveal the plaintiff to public hatred, contempt, ridicule, or shame.” The courtroom went on to cite the five proving components of the tort, together with the reality or falsity of the statement and whether or not the complaining celebration really sustained damages.Without providing any quotation, the court outlined “dirtbag” as “an informal term” which means “a dirty, dirty, sleazy, or disreputable particular person.” The court docket went on to explain varied attainable meanings for Mr. Schumacher’s allegedly defamatory statement. Did Schumacher mean that Acheson was the physically largest of the dirtbags he had known? Or perhaps simply one of the powerful? The court docket surmised additionally that Schumacher might have believed Acheson to be “just a tad worse” than the opposite dirtbags he had known.The point the court was making was that — in any case — these statements would all be opinions. Citing the case of Gilliam v. Richard M. Greenspan, P.C., the court docket held that statements of opinion usually are not defamatory. In Gilliam, one lawyer penned a nastygram, saying unflattering things about one other lawyer. The courtroom held it was opinion and threw out the case.But do not take these court docket choices as a license to spew any insult you please. In Lund v. Chicago and Northwest Transp. Co., a Minnesota appellate courtroom held that certain epithets — in that case, the unfriendly word “s—head” — used alone might be only “unactionable rhetorical hyperbole,” but combined with other defamatory words or statements, such words may “tackle actionable traits.”It additionally issues where and when insults are hurtled. In National Recruiters Inc. V. Cashman, the Minnesota Supreme Court discovered it slander when a plaintiff was called “a no-good loser; a no-good son of a bitch” in the context of an employment reference.Other courts are more hostile toward such lawsuits. When ESPN posted a photograph of daredevil Evel Knievel and his wife with the caption, “Evel Knievel proves you are never too old to be a pimp,” the Knievels sued the community for defamation. They misplaced on the grounds that an affordable person wouldn’t have taken the photo and caption to imply Evel was actually a pimp and Krystal his prostitute, regardless of their 29-year age difference and his rose-tinted glasses within the photograph.And Florida courts have held that even such insults as “cockroach” and “mega-scumbag” don’t constitute defamation, nor do references to a woman’s “poor female hygiene.” Despite being “crude and indecent,” such feedback had been considered permissible as “satirical hyperbole.”The bottom line is that you could freely call somebody a dirtbag or a mega-scumbag, but be careful the subsequent time you write a letter of recommendation. If you can’t say something nice, a minimum of don’t say something that may get you sued.___________________________David Horrigan is an legal professional, journalist, analyst at The 451 Group, editorial director at Courtweek.com, and former workers reporter and assistant editor at The National Law Journal. His articles have appeared also in The Washington Examiner, Law Technology News, The American Lawyer, The New York Law Journal, The San Francisco Examiner, Corporate Counsel, Texas Lawyer, Florida Lawyer, and Daily Business Review. E-Mail: more at the Washington Examiner: /opinion/op-eds/2011/06/defamers-guide-dirtbag-v-dirtbag#ixzz1Qfc82pzXJune 12, 2011The Law of Ben & Jerry’s and Natural BeansHave you ever wondered just what “all natural” means? There was once a professor who reminded his students that the bubonic plague was all natural. Various merchants–from sellers of cereal to purveyors of popcorn–claim their products are “all natural.” Ben & Jerrys claimed its ice cream was all pure, however the Center for Science in the Public Interest didnt agree, so they obtained somebody to sue Ben & Jerry’s.So, we can attempt to find once and for all simply what all natural means, the story of Chubby Hubby, Chunky Monkey, and Cherry Garcia defending their honor gets to be this week’s Case of the Week.Activist ice creamIn the Seventies, childhood pals Ben Cohen and Jerry Greenfield took a correspondence course in ice cream making. Then they scraped up 12,000, opened an ice cream shop in an old Vermont gas station, and delivered dairy products in a station wagon. Ben & Jerry’s Homemade Inc. Was born, and, as they say, the rest is history.Ben & Jerry’s expanded rapidly. Not only was the corporate identified for its tasty ice cream with imaginative names, Ben & Jerry’s became known as a pacesetter in social and environmental activism. The rising company tried to promote world peace, and–from green dairy farms to recycled supplies–Ben & Jerry’s made environmental stewardship a focal point of its operations. In addition, Ben & Jerry’s donated 7.5 percent of the companys pre-tax earnings to charity by way of the Ben & Jerry’s Foundation. In 2000, Ben and Jerry sold the company to Unilever.Although they are now very rich dudes, Messrs. Cohen and Greenfield and their ice cream operation still conjure up pictures of granola, Birkenstocks, peace signs, and…well…things that are all natural. Of course, the labels of Ben & Jerry’s ice cream read all pure, too. Some folks did not assume it was natural enough.Dutch chocolateAlthough Amsterdam may be extra famous for Rembrandt, the Rijksmuseum, and reefers, some individuals believe the Netherlands can be well-known for Dutch chocolate. But, does anybody really know what Dutch chocolate is? Hint: it is slightly more difficult than simply being made near The Hague.Chocolate is produced when seeds from cocoa beans are fermented and dried and blended with fat and powdered sugar. Cocoa powder can be made in two forms: unalkalized cocoa or Dutch-process alkalized cocoa. The unalkalized cocoa is made by merely pressing the beans. The course of produces a light-weight brown, very acidic powder.Dutch-process cocoa, however, is produced by cocoa nibs with a mild alkali answer to boost the pH and thus, lower the acidity. This course of improves taste, colour and solubility, nevertheless it also destroys many of the flavonols, which are believed to have health benefits. Ben & Jerry’s used the Dutch alkanization process.All Natural?The Center for Science in the Public Interest CSPI does not suppose alkanized cocoa is all natural, so it contacted Unilever, demanding that the corporate take away the words all pure from each Ben & Jerry’s and Breyers ice cream, one other brand the corporate owns. Ben & Jerrys agreed to take away the phrase, all pure, from any products containing alkanized cocoa. Breyers didn’t.CSPI organized a category motion with the ice cream-enjoying Skye Astiana as lead plaintiff of a band of ice cream eaters who hate the allegedly unnatural Dutch chocolate, and sued Ben & Jerry’s in the us District Court for the Northern District of California in Astiana v. Ben & Jerry’s Homemade Inc. They alleged violation of both federal and California legislation within the labeling of the ice cream as all pure although its cocoa contained potassium carbonate from the alkanization process.Specifically, the CSPI plaintiffs argued Ben & Jerry’s dedicated fraud and engaged in false promoting in violation of California Business & Professions Code 17500. In addition, CPSI claimed Ben & Jerry’s violated laws promulgated by the federal Food and Drug Administration FDA.Ben & Jerry’s filed a motion to dismiss the case, making quite a few arguments, together with debating the definition of all natural.The ice cream makers argued that “all natural” was a time period of artwork underneath FDA and U.S. Department of Agriculture USDA laws. Thus, Ben & Jerry’s argued, for the CSPI plaintiffs to have been deceived by the all pure packaging, they would have needed to have possessed an intimate familiarity with the FDA’s pure policy in addition to the USDA’s regulations about what constitutes a synthetic process.Ben & Jerry’s was taking the place that Ms. Astiana was merely an ice cream lover and never a federal regulatory skilled.In addition, Ben & Jerry’s argued a prospective class plaintiff would have needed to taken that extensive regulatory information, then even have seen the all pure phrase on the bundle, and then made her personal analysis that the ice cream was both not alkanized or that the alkali used in the Dutch cocoa process was not artificial beneath the USDA laws.After all that, underneath Ben & Jerry’s argument, the potential plaintiff would have had to have relied on that regulatory evaluation in deciding to take pleasure in that pint of Chubby Hubby. Ben & Jerry’s argued that when the reasonable client purchased her Chunky Monkey, she was not assuming all natural meant alkanized with sodium carbonate and not potassium carbonate.The courtroom wasn’t shopping for it–at least not for now.The court docket denied Ben & Jerry’s motion to dismiss, holding that the dispute was too fact-dependent to be thrown out at this point.”Moreover, the fundamental dispute–what is a natural product?–will doubtless present some factual disputes. The solely FDA guidance seems to be a distinction between pure and artificial within the coverage, but that definition within the Federal Register is certified as which means something that would not normally be anticipated to be in meals. Surely, that characterization raises a quantity of linguistic and philosophical questions, to not mention factual questions,” U.S. District Judge Phyllis Hamilton wrote for the court.So, the battle between Ben & Jerry’s and the enemies of Dutch chocolate will continue. What have we discovered this week? Well, based on the united states District Court for the Northern District of California, there really isn’t any definition of “all natural”…a minimal of for the second._______________________________June 5, 2011The Law of Bees and BudsWhat does it mean to operate a motor vehicle? It seems to be a easy question. Get a bunch of attorneys and judges involved, and it turns into anything however. Although alleged drunk driving circumstances are where this query is requested most frequently, this week’s “Case of the Week” asks it in a unique setting.What about when that motor vehicle is attacked by a swarm of bees?Unhappy HiveOne May day in 2009, Michael Corpus known as animal control for the town of McAllen, Tex. It appears he was having a little bit of a problem with a beehive.City of McAllen Animal Control Officer Roberto Mata responded to the call, and upon arrival on the scene, Mr. Corpus asked Officer Mata to accompany him to the hive with the swarming army of displeased bees.Possibly remembering what happened to the fools who tried to go into a lodge room with Mike Tyson’s tiger, Officer Mata stated something along the traces of: “I don’t think so; Homey don’t play that,” and refused. Officer Mata insisted Mr. Corpus accompany him to the hive.So the two gentlemen entered Officer Mata’s animal control automobile, equipped with animal safety equipment. Officer Mata donned protective gear and approached the hive of hazard, but he instructed Mr. Corpus to stay safely in the animal control vessel because the engine remained working.Things would have been simply fantastic and dandy had Officer Mata not done something which will have been considerably unwise.Insects Attack!Not in contrast to a Saturday Morning Super Hero decked out in protective gear as he makes Saturday mornings safe for kiddie gross sales of sugary cereal and overpriced toys, Officer Mata approached the hive in his protective animal management gear. Then, the swashbuckling hero of animal safety started spraying the bees.Guess what happened next?Shockingly, the bees attacked. But, no worries. Officer Mata was protected by his animal management gear. The downside was what Officer Mata did subsequent.To escape the mighty swarm, Officer Mata ran to the truck, opened the door, and hopped in.The only problem, after all, was that, when he opened the door to the animal management truck, he let in a bunch of very indignant bees–who proceeded to have a area day biting the [expletive deleted] out of the unprotected corpus of Mr. Corpus.Mr. Corpus was not amused.What do unamused folks do on this column? They sue.The Law of Bees and CarsMr. Corpus sued town of McAllen, alleging Officer Mata’s negligent operation of his city-owned automobile cased critical injuries to Mr. Corpus.Operating a motor vehicle? What about spraying the bee hive and opening the truck door so the bees might flip Mr. Corpus into a walking, speaking pin cushion.Actually, Mr. Corpus had a smart lawyer.You see, authorities entities are normally only liable in civil suits if they waive what attorneys name sovereign immunity, the federal government’s immunity from legal actions. Governments waive sovereign immunity for certain activities. Basically, you can sue the federal government only if the government says you possibly can sue the government.One of the exceptions to sovereign immunity in Texas is for operation of motor autos. If Mr. Corpus’ lawyer could present Officer Mata was working the animal control truck, then he would have a case underneath the exception to sovereign immunity.So simply what does it take to be operating a motor vehicle?If you requested a bunch of convicted drunk drivers, they might most likely tell you Officer Mata was working the animal control truck. That’s as a outcome of courts have held that, to be guilty of drunk driving, all one must do is sit within the drivers seat with the key within the ignition.Bud or Bees?For instance, in People v. Wood, Andrew Wood had a very unfortunate night at McDonald’s. When he pulled as much as the drive-up window in his van, he handed out–with his automobile running–and, giving new meaning to the phrase, “This Bud’s for you,” he had a can of Budweiser between his legs. At least it wasn’t hot espresso. Oh yeah, he additionally had a cooler full of marijuana on the entrance seat.The authorized story from the unhealthy evening on the Golden Arches wasn’t so unhealthy for Mr. Wood at first. Both a trial court docket and an intermediate state appellate courtroom threw out the evidence towards him, holding he was not working his van at the time of the arrest and search.However, the Michigan Supreme Court reversed both courts and held Mr. Wood was operating the motorcar even though his van wasn’t transferring, and he had his foot on the brake. Noting that his van was working and in drive, the state’s excessive court docket held he was working the automobile as a end result of he had put the vehicle in movement, was nonetheless in command of it, and the vehicle still posed a danger to the common public. In doing so, the court reversed two previous Michigan instances that held one couldn’t be sleeping and working a motorized vehicle at the identical time.Actual physical management of the automobile is the usual used by many jurisdictions, and in Illinois, Michigan, Minnesota, and Nevada, that control could be maintained whereas sleeping.Putting the key within the ignition will get you in some states, including Vermont. In the Vermont Supreme Court case, State v. Helton, one hapless, inebriated fellow was convicted of DUI for merely putting his keys in the ignition to roll up his automobile windows–after he had gone to retrieve his vodka from the car.Note to self: appoint a delegated sober window operator.So what about Officer Mata, was he in control of the automobile and thus working it for functions of Mr. Corpus bee assault case?Departing from the case law of other states, each the trial court docket and the Texas Thirteenth Court of Appeals said “no.””The animal management truck was not in operation; it was parked. Corpus was injured when the bees entered the cab of the truck the place he happened to be sitting. Although we don’t condone Mata opening the truck door and exposing a passenger not sporting protecting gear to agitated bees, we nonetheless can not conclude that Corpus’s accidents resulted from the operation or using the truck,” Judge Nelda Rodriguez wrote for the courtroom.So for this week, we’ve established that you’re working a vehicle in Michigan if you’re asleep at the wheel in the McDonald’s drive-through with weed on the seat and Budweiser between your legs, however that you just’re not operating a operating vehicle in Texas with a swarm of bees on the seat and between your legs.Either method, its not a Happy Meal._____________________________David Horrigan is an lawyer, journalist, analyst at The 451 Group, editorial director at Courtweek.com, and former staff reporter and assistant editor at The National Law Journal. His articles have appeared also in The Washington Examiner, Law Technology News, The American Lawyer, The New York Law Journal, The San Francisco Examiner, Corporate Counsel, Texas Lawyer, Florida Lawyer, and Daily Business Review. E-Mail: more on the Washington Examiner: /blogs/opinion-zone/2011/06/law-bees-and-buds#ixzz1OXOJfS6kMay 29, 2011The Law of Rambo and Air FreshenersOur column two weeks ago concerning the Fourth Amendment has generated some dialogue about simply what will negate yourFourth Amendment protections and allow the cops to haul your posterior end to jail. As a public service to help our readers remain free from bondage, we’ll, every so often, present our Case of the Week: Fourth Amendment Follies version.This weeks useful trace: Don’t use an extreme amount of air freshener.Druggies from CharlotteRobert Little was touring through the pleasant North Carolina hamlet of Thomasville early one August morning in 2008. It might not have been any massive deal, nevertheless it was 4:03 in the morning, and Mr. Little was driving an old Buick with a malfunctioning headlight.Bonus reader helpful hint! If you’re carrying contraband, don’t drive by way of a small Southern city at 4:03 within the morning in an old Buick with a busted headlight. Bad things will happen. At least wait until 5:00 when the primary batch of doughnuts comes off the conveyor belt at the local Krispy Kreme.Because Mr. Little did not get the memo on suspicious vehicles lurking via the Bible Belt through the wee hours of the morning, he obtained to satisfy Officer Adam Kallfelz of the Thomasville Police Dept.Officer Kallfelz noticed three things that made him resolve it was time for back-up.First was Mr. Little’s nervous and agitated demeanor. Second, Mr. Little said he was touring from Charlotte. Finally, Mr. Little had roughly 10 tree air fresheners hanging from the rear-view mirror.Before we get to those pesky air fresheners, please enable us to defend the good people of Charlotte, North Carolina. You’re a nice city with an financial system constructed on good barbecue and Bank of America overdraft charges, and–unlike Office Kallfetz–we don’t think you’re a bunch of druggies. We do not assume folks ought to be stopped by the cops just because they’re coming from Charlotte.But, again to these tree air fresheners.Rambo RaidA nervous dude driving from Charlotte with 10 air fresheners made Officer Kallfelz understand he needed a crime deterrent.It was time for Rambo.At 4:07 AM, Officer Kallfelz called Officer Christopher Leonard, asking him to convey his partner, Rambo.Not unlike Sylvester Stallone looking swamps for sadistic Viet Kong alumni, Rambo, a drug canine, went over that old Buick like a frat boy going through couch cushions on the lookout for that misplaced last joint.Rambo signaled for the presence of narcotics in the Buick’s door, and Mr. Little was arrested for being a felon in possession of a firearm.Mr. Little moved to suppress the evidence, arguing the search was illegal, however a trial court denied the motion, holding that the stop and the search have been lawful. Mr. Little appealed.Air Freshener JurisprudenceIn his enchantment to the North Carolina Court of Appeals, the Tar Heel State’s intermediate appellate court docket, Mr. Little argued in State v. Little that the search was improper as a outcome of the cornucopia of air fresheners didn’t provide reasonable suspicion for extending the stop till Rambo arrived.Unfortunately for Mr. Little, North Carolina has a proud custom of air freshener jurisprudence. They even go after Santa Claus if there’s air freshener involved.In State v. Hernandez, the North Carolina Court of Appeals held a cease was correct when it was based mostly, a minimum of partly, on Christmas tree air fresheners.In Hernandez, Trooper Jonathan Whitley of the North Carolina Highway Patrol stopped a vehicle when driver Jose Hernandez removed his seatbelt while nonetheless working his vehicle. Not not like with Mr. Little’s arrest, air fresheners would help lead to Mr. Hernandez’s undoing.”I seen there have been several of those Christmas timber, air fresheners within the automobile. I seen a powerful odor coming from the car,” Trooper Whitley testified in defending his actions.Christmas tree air fresheners as a basis for detaining a motorists? Well, the court docket upheld the cease, and the courtroom in Little followed the court in Hernandez.”Facts giving rise to a reasonable suspicion embody nervousness, sweating, failing to make eye contact, conflicting statements, and robust odor of air freshener,” Judge Martha Geer wrote for the court docket in Little.And, should you assume North Carolina is the one state fighting the warfare on air freshener, you’d be incorrect.In Commonwealth v. Watts, the Massachusetts Appeals Court held reasonable suspicion could presumably be based mostly, partly, on the presence of material softener drier sheets.The federal courts have joined this assault on pleasant aromas as nicely. In United States v. West, the Tenth Circuit proclaimed, “The Tenth Circuit has constantly held that the scent of air freshener is properly thought of as an element within the possible cause analysis, and in the Eleventh Circuit held in United States v. Wright that proof of a drug conspiracy existed primarily based partially on the truth that two persons entered the Winn-Dixie collectively to purchase carpet freshener and fabric softener; supplies identified for use to mask the odor of cocaine.Many other federal circuits, including the Third, Fifth, Seventh, Eighth, and Ninth, have upheld convictions based mostly, in part, on the presence of material softener, and in United States v. Edmonds, the Third Circuit upheld a trial court docket’s refusal to believe a drug mule was a mere unsuspecting courier. Why? She brought alongside a box of Bounce material softener sheets.So, the lesson from this week’s Case of the Week: with a Mountain Fresh scent filling the air, your dorm corridor monitor in faculty didn’t believe you then, and the cops don’t imagine you now. If you might have contraband and spot Rambo sniffing your automobile, ditch the material softener…Bounce can get you busted.____________________________Read extra on the Washington Examiner: /blogs/opinion-zone/2011/05/law-rambo-and-air-fresheners#ixzz1Nvzi9iNpMay 22, 2011The Law of Airport TipsHave you ever been sitting in a hotel room, observing a room service bill, attempting to find out whether the service cost added to your invoice is the tip? And let’s not even get began with deciphering the cryptic hieroglyphics known as the cable invoice.But what if your employer hoisted an indication informing customers there would be a two-dollar charge for your services? Would that payment be your tip? Would posting that sign get anyone sued? Of course, it might. This is the Case of the Week.Air a la carteOur story begins in Sept. 2005, when American Airlines started charging a 2.00 fee for passengers to verify a bag at curbside.Before this coverage started, curbside check-in was free, but customers tipped the skycaps–usually a greenback per bag–for curbside service. Until American went and tousled things, most skycaps earned most of their earnings from suggestions.As the airline business faced important financial issues, airways began charging for many providers that had been free. This a la carte charge system affected every thing from headphones to purses.Want to observe the in-flight movie? No downside. That’s free. Want to hear it? Two dollars for headphones, please. Want to eat? Pay up.Pay2Pee, the world’s first plane pay toilet, can’t be far away.At the moment, we are in a position to add curbside check-in to our non-complimentary airline a la carte menu.American–and its subcontractor actually using the skycaps–made out like Tijuana bandits. The charge was designed to defray the price of curbside service in a dark and dreary financial system, but it truly grew to become a profitable enterprise venture for all…except the skycaps themselves.Many passengers thought American’s 2.00 charge was the tip. Others felt 2.00 per bag was sufficient to pay for curbside service. The end result was the same: the skycaps misplaced a significant amount of their earnings as ideas plummeted.Suing SkycapsTwo skycaps at Boston Logan International Airport sued American and the contractor, looking for class certification and arguing that American’s curbside payment violated the Massachusetts statute governing suggestions, Mass. Gen. Laws, ch. 49, 152A 2008, constituted tortious interference with an advantageous relationship, illegal conversion, and unjust enrichment beneath Massachusetts law, and that the skycaps were entitled to restitution underneath the legal theory of quantum meruit.The skycaps’ employer was dismissed as a result of an arbitration agreement, and American removed the case from a Massachusetts commonwealth courtroom to federal courtroom.The skycaps argued Massachusetts regulation prohibited American from charging the curbside baggage fee as a result of the charge qualified as a service cost beneath the commonwealth law because it was a charge that a shopper would fairly expect to be given to the skycap.American countered that the skycaps suit was preempted by the federal Airline Deregulation Act of 1978. When a federal regulation preempts a state legislation on an issue, the federal statute has sole jurisdiction, and the state statute is preempted and nullified for purposes of that dispute.The District Court held for American on a quantity of grounds, however held for the skycaps on the preemption argument. Thus, the claims underneath the Massachusetts ideas regulation and for tortious interference had been tried to a jury.Big TippersIt turned out the jury was a bunch of huge tippers. The jury found for the skycaps in April 2008 and awarded damages within the quantity of 2.00 to each skycap for every bag dealt with between Sept. 2005 and the verdict.Thus, the jury awarded the nine prevailing plaintiff skycaps approximately 333,000 in damages plus curiosity and lawyer fees. One plaintiff skycap from the St. Louis airport did not get to share within the bounty because–as a citizen of Missouri–he was not covered by the Massachusetts tip legislation.But, our story just isn’t over. Cheap tippers can rejoice. American appealed, and the First U.S. Circuit Court of Appeals handed down a decision bound to make Parisian vacationers do a happy dance.The First Circuit reversed the district court docket and dominated for American in DiFiore v. American Airlines, Inc., holding that the Massachusetts tip statute was, actually, preempted by the federal Airline Deregulation Act.Although the appellate courtroom conceded there was conflicting case regulation, it relied on three U.S. Supreme Court cases, Morales v. Trans World Airlines, Inc., American Airlines, Inc. V. Wolens, and Rowe v. New Hampshire Motor Transport Assn, in holding that the federal regulation preempted the Massachusetts tip statute vis–vis the skycaps suggestions.The courtroom held the commonwealth’s legislation was preempted when applied to Ameircan as a end result of it was related to a price, route, or service, noting that associated to and service have been statutorily broad terms.The First Circuit rejected the skycaps’ argument that the tip law’s connection to airline worth, route, or service was so tenuous, distant, or peripheral as to not set off preemption beneath Morales or Rowe.”This, to borrow an apt airplane picture, is strolling right into a rotating propeller: the promoting and service arrangements are just what Congress didn’t want states regulating, whether or not at high price or at low. When the Supreme Court invoked the rubric “tenuous, remote, or peripheral”, it used as examples limitations on gambling, prostitution, or smoking in public places–state regulation comparatively distant to the transportation perform,” the court docket stated.So, next time you go to the airport, please keep in mind that–because a federal courtroom has ruled that curbside check-in just isn’t like betting on ponies, retaining the services of a hooker, or smoking a joint at baggage claim–these guys aren’t protected by the Massachusetts tip statute.Even when you pay an airline curbside baggage fee, please, of us, tip your skycap.________________________May 14, 2011The Fourth Amendment and the Law of Bongs and BaggiesThe Fourth Amendment offers a few of our biggest protections from authorities. It retains colonial constables out of our tea, J. Edgar Hoover and the FBI out of our mothers underwear drawers, and seizure-hungry sheriffs out of our Chevys.Yet, as with something, the Fourth Amendment is not absolute. The Fourth Amendment prohibits only unreasonable searches. Thus, if police have possible trigger for a search, its not unreasonable, and the Fourth Amendment won’t stop it. In truth, the Fourth Amendment has a specific clause permitting searches with possible trigger.A latest Massachusetts case will get to be our Case of the Week as a result of it addresses the novel legal question: Does the presence of a bong and Baggies represent probable trigger for a seek for marijuana?Speeding and SeizingWhen Shawn Smith determined to do some city drag racing with associates, he probably should have left his bong at residence. For readers who may be unfamiliar with the family equipment generally identified as the bong, it’s a water pipe–used by some to smoke marijuana.The rushing Mr. Smith was making an attempt to outduel a fellow motorist when police clocked him touring sixty seven miles per hour in a 40 mile per hour zone.When police stopped the Smithmoblie, they noticed a bong and an open field of plastic sandwich baggage in the car. The police testified that, based mostly on their expertise, a bong and Baggies often meant one thing…and it normally happens so much in Cheech and Chong motion pictures. Yes, police thought they have been dealing with that plague on humanity: marijuana.Having recognizing the offending bong and Baggies, legislation enforcement swung into action.Police ordered Mr. Smith from the automobile, and frisked him. They asked him if there were any marijuana in the automotive, and he stated there was not. However, Mr. Smith admitted he had some natural enjoyment in his pocket. Police seized it, arrested Mr. Smith, and impounded his speedy automotive. Shockingly, they discovered extra marijuana.However, in a development that will be vital legally later in our story, police did not detect any marijuana smoke or residue within the bong.Evidence Up in Smoke?Sure, police get to do a listing after they seize a car. In this week’s case, police have been arresting Mr. Smith for his weed, in order that they got to undergo his automobile and inventory everything. However, when police misbehave, there’s a judicial treatment known as suppression of the proof. For those that never have time to watch Law and Order, which means the proof is thrown out as a result of the cops got it illegally.In this case, because the police failed to offer Mr. Smith his Miranda warnings before giving him the Spanish Inquisition, Mr. Smith moved to suppress evidence of the search.However, Massachusetts prosecutors argued the bong and Baggies sitting in the automobile in plain sight gave the police all the possible trigger they needed to search the carMiranda or not. In essence, the Commonwealth argued, it was the possible trigger supplied by the bong and Baggiesnot the Mirandaless utterances of Mr. Smith that gave police the pot.Both a trial court docket and the Massachusetts Appeals Court, the commonwealths intermediate appellate court docket, rejected prosecutors’ arguments and threw out the evidence–and thus, the case. Citing Massachusetts case law, the court docket held that bongs and Baggies–and nothing more–do not give the police probably case for a search.Bong and Baggies LawThe Appeals Court distinguished Mr. Smith’s case from two previous Massachusetts Appeals Court choices the place bongs did lead to probable cause for a search: Commonwealth v. Dolby from 2000, and Commonwealth v. Correia in 2006.It is true the facts in all three circumstances had been somewhat comparable: cops stop car, cops see bong, cops arrest driver. However, Smith differed from Dolby and Correia in one, key respect. Unlike in Dolby and Correia, in Smith, there was neither marijuana smoke nor residue present in the bong.The Appeals Court mentioned that distinction was crucial. In Dolby and Correia, the evidence was not suppressed, but it was as a end result of there was residue within the bong–not as a result of police spotted an harmless bong just hanging out, minding its own business, with no nefarious residue or smoke.Baggies get the identical constitutional protections.Citing its decision in Commonwealth v. Garcia, the court held, the remark of two lawful items–the bong and the field of sandwich bags–did not provide most likely cause. The court docket articulated its rationale in Garcia:”The trooper’s experience, coupled together with his remark of an apparently empty baggie, isn’t sufficient to offer possible cause to conduct a warrantless search of the auto. Benign objects corresponding to spoons, mirrors, and straws are often used in the narcotic trade. To allow police officers, experienced in narcotics investigations, to conduct a warrantless search every time they observe one of the above gadgets, and nothing extra, would permit random searches, that are condemned by the Fourth Amendment and the Declaration of Rights,” the court said.So, Mr. Smith received off: the evidence was suppressed, and the fees have been dropped. The ethical of this week’s Case of the Week: if you’re going to go drag racing with your bong in the again seat, at least make sure it’s clear._________________________Read extra at the Washington Examiner: /blogs/opinion-zone/2011/05/law-bongs-and-baggies-fourth-amendment-searches-probable-cause-miranda-marijuana#ixzz1MKivXiVWMay 8, 2011The Law of Cow Bones and BungeesWhen you buy a services or products, how a lot information ought to the vendor confide in you? This week’s Case of the Week examines that problem in a case involving breast implants, bungee cords, a surgeon’s eyesight, and the jurisprudence of cow bone implants…not essentially in that order.Manmade ChassisDenise Dalien determined she needed to reinforce the chassis God gave her, so she consulted plastic surgeon Stanley Jackson of Puyallup, Wash. Dr. Jackson performed breast augmentation on Ms. Dalien in 2000, utilizing saline implants.After a food regimen and train routine triggered her to shed pounds, Ms. Dalien seen some indentation and rippling on what was as soon as her gentle and supple higher left bosom.No problem. Dr. Jackson went in again, eliminated the saline implants, and changed them with gel implants.Turns out there was an issue. Ms. Dalien was not pleased with her new gel bosoms, so under the surgical concept of more is extra, Dr. Jackson carried out further revision procedures on Ms. Dalien throughout 2005 and 2006.Blinding BungeeJust before all this happened, and–importantly for our story–unbeknownst to Ms. Dalien, Dr. Jackson was having points with a bungee twine. Dr. Jackson went into mortal fight with the killer twine in July 1999.The bungee cord received.Dr. Jackson received surgical procedure on his eye, and took over a month off from his practice. In July 2006, Dr. Jackson reported further changes in his imaginative and prescient. He retired in October 2006 after unsuccessful surgery.Citing her allegedly unsuccessful surgeries, Ms. Dalien sued the nice physician twice. In one suit, Ms. Dalien argued negligent medical malpractice in the botched boob job.In her second civil action, Ms. Dalien sued beneath Washington States Consumer Protection Act CPA. Ms. Dalien argued, amongst different things, that Dr. Jackson violated the law by failing to reveal his eye injury.Cow Bone LawDr. Jackson argued that the nondisclosure of his eye condition didn’t occur in commerce or commerce and that any alleged skilled malpractice or negligence was exempt from the CPA.Ms. Dalien countered that the nondisclosure of the attention situation was, in reality, accomplished in trade or commerce because Dr. Jackson solicited and retained patients by failing to reveal this situation.In siding with Dr. Jackson, Washington State’s Court of Appeals cited the Evergreen State’s jurisprudence on cow bone disclosure and the case of Michel v. Mosquera-Lacy.In Michel, Mystie Michel sought treatment from Lucy Mosquera-Lacy, a periodontist employed by Bright Now! Dental, Inc., and the physician mentioned Ms. Michel needed a bone graft.When finishing her pre-procedure paperwork, Ms. Michel was given the choice of human bone, cow bone, or synthetic bone for her graft. Stating she couldn’t fathom the thought of having animal elements in her physique, Ms. Michel declined the opportunity to get authentic cow bone.Well, sadly for Ms. Michel, supplies have been running low within the dental office that day.When Dr. Mosquera-Lacy ran out of human bone, she completed the job with cow bone.Although the dentist claimed she merely finished up with cow bone–and that cow constituted no more than 10 % of the graft–Ms. Michel said she now had a McImplant with the doctor having implanted a cow bone in her mouth.Whatever damages or urges to graze on her entrance garden Ms. Michel might have experienced, her case wasn’t actionable underneath the Consumer Protection Act, the Washington Supreme Court held, as a end result of the utilization of cow bone was not an entrepreneurial exercise in trade or commerce.”Michael failed to point out that Dr. Mosquera-Lacy’s use of cow bone is entrepreneurial. It does not relate to billing or obtaining and retaining patients. It merely relates to Dr. Mosquera-Lacy’s judgment and treatment of a patient. There isn’t any evidence that cow bone was used to extend earnings or the variety of patients. When the supply of human bone ran out through the procedure, Dr. Mosquera-Lacy used her judgment and abilities as a periodontist to complete the procedure. This is not actionable under the CPA,” the court docket said.Bovine Bones and BungeesFollowing the Washington Supreme Court’s holding in Michel, the Washington Court of Appeals held in Dalien v. Jackson that Dr. Jackson’s nondisclosure of his eye condition was additionally an exercise that fell outside the scope of Washington’s Consumer Protection Act. Thus, the court declined to certify her class motion, and it affirmed a trial court docket’s dismissal of her case.”As in Michel, Dalien has failed to level out that Dr. Jackson’s nondisclosure of his eye damage is entrepreneurial. Dr. Jackson’s nondisclosure does not relate to Dr. Jackson’s billing or acquiring and retaining patients. Dalien has offered no proof that Dr. Jackson represented that he had better vision than his competitors or by some means relied on his vision to advertise his enterprise,” Judge Russell Hartman wrote for the courtroom.However, the courtroom did not say Ms. Dalien did not have a case–just that she didnt have a case beneath the CPA. Referencing her different go properly with, the courtroom said, “To the extent that Dr. Jackson’s eye harm might have affected his ability to examine, diagnose, treat, or care for his patients, that query is actionable under the negligence concept, which Dalien is pursuing in her unique lawsuit.”The lesson of this week’s Case of the Week? If you wish to sue under Washington’s Consumer Protection Act, make certain they promote their wonderful vision permits them to see your head before they implant a cow bone in it.____________________________Read extra on the Washington Examiner: /blogs/opinion-zone/2011/05/law-cow-bones-and-bungees#ixzz1Ll8lzZ00May 1, 2011The Law of Bait Car JournalismDavid Broder, Edward R. Murrow, William F. Buckley Jr., Walter Cronkite, and now Bait Car?As the old Sesame Street track said, it might appear that considered one of this stuff just would not belong right here. Well, that’s not what the producers of the tv show, Bait Car, say. They argue their show is actual journalism, and–in an try and avoid producing proof in a California court proceeding–they say their photographers are journalists. In recognition of this artistic legal argument, their case will get to be our Case of the Week.What is a Journalist?The proliferation of latest media sources has created a novel question: Just what’s a journalist? Must one possess government-issued press credentials, sending shivers down the spines of First Amendment advocates? How a few requirement that you earn your dwelling from journalism? Perhaps there must be a requirement that a minimal of your Aunt Betsy actually learn what you write?This query has taken on actual authorized significance as the U.S. Congress and many states have tried to implement so-called reporters’ protect legal guidelines. These laws try to protect reporters and their confidential sources by shielding confidential data from disclosure to courts and third parties.Although there has been substantial progress, a federal defend law has not but passed. However, 40 states and the District of Columbia have shield laws, with many states enacting them after what some argued were Bush administration abuses, prosecutorial assaults on the press, and the prosecution of New York Times reporter Judith Miller.Some Republican lawmakers cited national safety considerations with reporters’ shield legislation, and others had a more fundamental concern: How do you go about deciding which writers get to be journalists in a New Media world vs. Old Media world?Many hipsters sipping lattes at Starbucks like to bash so-called Old Media. As they iPad away their afternoons, bowing earlier than the altar of New Media, they mock institutions such as The Wall Street Journal because the old media of their grandparents, and–bless their little black turtlenecks and Birkenstocks–they weren’t fooled by Rupert Murdoch’s buy of Myspace. Silly, Rupert, New Media is for hip children.But, the attractive world of running a blog Brown alumni opining on global warming and Maya Angelous contributions to literature while their conservative brethren blog on banks and hedge funds could additionally be in for a shock to its trendy sensibilities. There may be unwanted guests at this post-modern, on-line clambake, and it could be a sign of things to come.Bait Car as New MediaThe of us at truTV, that network of cop shows that was once Court TV, have provide you with a new present referred to as, Bait Car. In Bait Car, the producers work with native police to put an unlocked automobile with keys in the ignition out on the road. Its the bait for would-be car thieves. Get it, bait, car?Many unsuspecting residents, including Joseph Bullard, took the bait.Or did he?In the case of People v. Bullard within the Superior Court of California, San Francisco County, Mr. Bullard argued that he was merely being an excellent citizen, moving the Bait Car out of its illegal parking spot.He also argued selective prosecution. Mr. Bullard, a gentleman who enjoys cross-dressing, argued it was no coincidence that the unholy trinity of producers, police, and prosecutors organized for the Bait Car to be positioned outside Divas, a well-known, somewhat risque San Francisco transgendered membership. Police countered that they just picked an space known for automobile theft.To show Mr. Bullard’s Good Samaritan declare, his authorized counsel needed to see the tapes of the filming from KKI Productions, the producers of the San Francisco episodes of Bait Car. Not not like Judge John Sirica sending an order to the Nixon White House, Judge Gerardo Sandoval ordered KKI to show over the tapes.Not so quick, said KKI. Arguing that Bait Car was journalism and that the intrepid Bait Car photographers have been, in fact, journalists and so under California’s reporters defend legislation, KKI refused.Judge Sandoval wasn’t shopping for it. He rejected KKI’s reporters shield argument, and demanded the tapes.Funny thing. You might have laughed at Mr. Bullard’s “I was solely serving to by shifting the automotive” argument, but prosecutors dropped the fees in opposition to Mr. Bullard.Future of Journalism?Bait Car’s producers have been working with prosecutors, turning over their tapes to the district lawyer’s office, and that cooperation with cops was fatal to their authorized argument, in accordance with Judge Sandoval and legal journalism specialists.”You can’t have it both ways. You cannot cooperate with one side and never the other,” mentioned Lucy Dalglish, Executive Director of the Reporters Committee for Freedom of the Press.”You could make a really robust argument that the cooperation with one aspect is a waiver of the privilege,” Ms. Dalglish added.People v. Bullard does not decide the law on the contentious issue of who gets to be a reporter in the eyes of the law–although it does put Californians on discover that, if youre in cahoots with the cops, you most likely don’t get to be one, no much less than for reporters shield purposes.The case additionally illustrates that the comfortable little running a blog world at Starbucks and beyond can additionally be within the midst of a tradition shift. The latter day hipsters might have make room on the Starbucks sofa for Bait Car journalists, Dog the Bounty Hunter, Big Brian the Fortune Seller, and the zany, fun-loving staffs of Ma’s Roadhouse, Lizard Lick Towing, and Hardcore Pawn.Yes, the Fourth Estate is changing into a very big tent in each respect possible…and in some not so possible.________________________Read extra at the Washington Examiner: /blogs/opinion-zone/2011/04/law-bait-car-journalism#ixzz1LCFs9nEyApril 24, 2011The Law of Gwen Stefani AvatarsAt the time of this week’s authorized tale, Gwen Stefani was a giant, big rock star, and Activision Publishing’s Band Hero videogame collection was extraordinarily popular. Combine the two – the idea went – and you would have what one of those MBA-types might call, synergy.Activision and Ms. Stefani thought so…till they ended up in court.This week’s Case of the Week illustrates the legal precept of the proper of publicity. It additionally puts us on notice with the following authorized poetry: Make Gwen Stefani a dude, and you’re gonna get sued.California Dreamin’In the 1990s, Gwen Stefani and Activision were both living the Southern California dream. Ms. Stefani and her Orange County band, No Doubt, achieved important and industrial success, together with Grammy nominations and large recording contracts, while hitting the highest of the charts with their 1995 single, Don’t Speak.Meanwhile, the pleasant folks at Activision have been constructing a videogame empire in Santa Monica with hit video games similar to MechWarrior 2: thirty first Century Combat and Civilization: Call to Power. They also made some money off a game sequence based mostly on the adventures of skateboarder Tony Hawk.Entering the twenty first Century, one of Activision’s greatest games was its Guitar Hero collection, which principally allows players to engage in computer-assisted air guitar. Band Hero was an identical, spin-off manufacturing.One of Band Hero’s options allowed gamers to create avatars based mostly on actual life rockers.Thinking it would be simply nifty to have No Doubt avatars within the sport – or no much less than pondering that it will be simply nifty to have some of Activision’s cash — No Doubt executed its Professional Services and Character Licensing Agreement with Activision, allowing the gamemaker to create avatars — or computerized characters — based on the band, and use them in Band Hero.Gwen just isn’t a dudeMuch to their horror, the members of No Doubt discovered a couple of special characteristic of Band Hero shortly earlier than the product’s launch — it was a special function No Doubt might have worried pubescent punksters would possibly manipulate.In their Agreement, Activision and No Doubt agreed Activision would license only a restricted number of No Doubt songs to be used within the recreation. However, that provision failed to think about one other potential use of Band Hero.When gamers reached a sure level of the sport, Band Hero allowed them to unlock their avatars, changing their track choice and private traits.For instance, Activision licensed only some No Doubt songs, but if Little Johnny were proficient enough in Band Hero to get his avatar — say, perhaps, a lasciviously alluring Ms. Stefani — to achieve Level Nine of Band Hero, he might unlock her and free her from the bondage of her current situation, in each method, including gender.No Doubt was most displeased to discover that, as quickly as your Gwen Stafani avatar had been unlocked, not solely might Avatar Gwen be singing Janet Jackson, she is also singing Tito Jackson.You see, once unlocked, an avatar’s voice might be modified from male to female.Not surprisingly, Ms. Stefani and her bandmates weren’t excited about the prospect of having their voices changed with the manly sounds of Boy George.Ska vs. SuitsCould Activision really use the twisted avatars with out No Doubt’s permission?No Doubt didn’t think so, and the band sued Activision in California state court. In No Doubt v. Activision Publg, Inc., the band sued for injunctive relief and damages, arguing Activision had engaged in the unauthorized exploitation of No Doubt’s name and likeness.The band sued on a number of grounds, including Activision’s alleged violation of No Doubt’s right of publicity.The proper of publicity offers an individual management over the commercial use of her name or likeness. About half the states have a statutory right of publicity and others defend the best of publicity as part of their right of privateness legal guidelines.There has been a movement to increase the best of publicity beyond demise. Not surprisingly, this motion is led by the heirs of some very well-known useless folks, including the heirs of Marilyn Monroe.California is a sort of states with a codified proper to publicity, contained in section 3344 of the California Civil Code.However, Activision countered that No Doubt’s proper of publicity claim was barred as a matter of regulation as a result of Activision’s actions on the avatars constituted constitutionally protected activity beneath the First Amendment.A Los Angeles Superior Court choose denied Activision’s movement to strike No Doubt’s complaint, and Activision appealed to California’s Second District Court of Appeal.Citing Comedy III Prods., Inc. V. Gary Saderup, Inc., the appellate court utilized the transformative use check, a way to determine whether a use of a likeness was remodeled from one thing greater than a mere impersonation.The appellate court sided with No Doubt and the trial court. The court ruled that a transgendered avatar didn’t qualify as a transformative use. Thus, the appellate courtroom held, the First Amendment did not excuse Activision’s alleged violation of its proper to publicity.”Nothing within the artistic parts of the Band Hero elevates the depictions of No Doubt to something greater than conventional, roughly fungible, images of its members that No Doubt ought to have the proper to regulate and exploit. Thus, the trial court did not err in denying Activision’s motion to strike the proper of publicity declare based on Activision’s assertion of a First Amendment protection,” Judge Thomas Willhite Jr., wrote for the court,The court docket in contrast and contrasted Ms. Stefani’s avatar with the picture in one other case involving a Sega videogame and the former lead singer of Dee-Light, Kirby v. Sega of Am., in holding Avatar Stefani was not a transformative use. The First Amendment could also be highly effective, but — no less than in this Case of the Week — it offers no constitutional protection for a Gwen Stefani avatar in a Boy George voice singing, Do You Really Want to Hurt Me?_________________________Read more on the Washington Examiner: /blogs/opinion-zone/2011/04/law-gwen-stefani-avatars-band-hero-No-Doubt-v-Activision-Publ-Inc#ixzz1KUS9gVwHApril 17, 2011The Law of Urinal TrademarksTrademarks and the legal disputes involving them may be the most entertaining space of intellectual property legislation, and a recent Pennsylvania federal court docket case illustrates just how entertaining trademark fights may be. You may suppose this battle over the name, “Pint,” was a beer dispute. You could be wrong.This week’s Case of the Week examines what happens when two urinal manufactures get into a authorized dispute over the names of their products.Pint of Yellow LiquidThe urinal and its bathroom cousin, the bathroom, use a lot of water. As individuals have turn out to be more concerned in regards to the setting, manufactures have joined the party, creating so-called green merchandise, and urinal makers are no exception. After all, no self-respecting urinal producer wants to be generally identified as a truck stop eco-terrorist.Among the leaders in the urinal market are Zurn Industries and Sloan Valve Co. Both Zurn and Sloan wanted to help save the planet by making eco-friendly urinals.Zurn developed a urinal Mother Nature would love and named it, The Pint. The U.S. Patent and Trademark Office awarded Zurn the United States Trademark Registration No. three,389,517 for The Pint, part of Zurn’s EcoVantage line of environmentally pleasant “fractional flush” urinals. They’re called fractional flush because they use a fraction of the water regular urinals use when you flush them.Not to be outdone, the nature-loving of us at Sloan came out with their own environmentally sound urinal, the Sloan 1 Pint Urinal System.Not not like a fraternity pledge spotting someone swiping his pint of Guinness from the bar, legal professionals for Zurn swung into motion.Urinating ContestAfter noticing a Sloan press launch for the Sloan 1 Pint Urinal System on the internet site, greenlodgingnews.com, Zurn’s lawyers sent Sloan a cease and desist letter, arguing Sloan’s name infringed on Zurn’s registered trademark for The Pint. Zurn demanded that Sloan stop marketing its allegedly infringing urinal with “pint” in its name.In an apparent try to take care of peace and concord within the urinal world, Sloan changed the name of its urinal from the “Sloan 1 Pint Urinal System” to the “Sloan Pint Urinal System.”It was a nice strive, however Zurn was unhappy. Simply deleting the numeral, “1,” from the name wasnt enough. Not not like Carrie Nation on a bar raid, Zurn needed the Pint the h*ll out of there.Sloan refused, and Zurn’s trademark attorneys did what it takes to turn into the Case of the Week. They sued.In its case, Zurco, Inc. V. Sloan Valve Co., filed in the U.S. District Court for the Western District of Pennsylvania, Zurn argued Sloan’s use of its name violated the federal Trademark Act of 1946, known commonly because the Lanham Act. Specifically, Zurn argued that Sloan’s name caused a likelihood of confusion amongst potential customers.Sloan countered that — regardless of Zurn’s federal trademark registration –The Pint was not a legally protectable trademark for a urinal as a end result of the mark was generic, a trademark authorized time period which means the name is a standard, basic term with no secondary that means.Sloan argued that pint was merely an identification of a sort of urinal — one which uses one pint of water when flushed. Thus, Sloan argued, urinal purchasers would associate the time period, pint, with the flush quantity of the urinal, not the maker of the urinal, Zurn.In making an attempt to resolve the dispute between the preventing flushers, the federal court docket applied the so-called main significance test, utilized in many circumstances, together with A.J. Canfield Co. V. Honickman. Under the first significance take a look at, the court determines whether the primary significance of a time period within the minds of the consuming public is the product or the producer.The court illustrated the difference by citing E.T. Browne Drug Co. V. Cococare Products, Inc., the place the courtroom made the excellence that cola was generic as a outcome of it described a product, but Pepsi-Cola is not generic as a end result of it describes the producer.Zurn disputed the generic label by noting that, in the bathroom and urinal trade, flush volumes are described — not in pints — however with the terms, gallons per flush GPF and liters per flush LPF. In reality, Zurn claimed using gallon and liter by those different wasteful water-hogs in the toilet and urinal trade was precisely why it chose the unique time period, pint.However, Sloan countered that pint had turn into an business commonplace, noting that American Standard has used pint and 1 level since 2008, Mansfield Plumbing Products has used 1-pint for its Brevity line of urinals, and Caroma USA had used one pint for its Cube Ultra line of urinals for 2 years.Unfortunately for Sloan, the court docket famous that none of these urinal craftsmen had used the time period earlier than Zurn launched the Pint in 2007. In addition, Zurn argued it had been diligent in sending cease and desist letters to the allegedly infringing urinal producers, a requirement for defense beneath trademark legislation.To Be ContinuedIn denying motions for summary judgment on most issues, the courtroom held that there have been genuine issues of material fact as as to whether The Pint was generic. As a end result, the case will transfer ahead, and extra evidence about urinals and what people name them can enter the hallowed halls of American jurisprudence.________________________Read more on the Washington Examiner: /blogs/opinion-zone/2011/04/law-urinal-trademarks#ixzz1K9cmh600April 10, 2011The Law of Chicken HeadsEmotional injuries and associated damages could also be one of the contentious areas of the regulation, particularly when — as in thisweek’s Case of the Week — that emotional harm is based on an employer’s forcing a employee to wear a hen head mask to find a way to get medical benefits. Yes, this week, we go to Massachusetts to bring you the regulation of chicken head damages.Poultry ProblemsKaren Cappello worked full-time for Cricket Productions, where she processed orders. Because she was a full-time employee, she requested her boss, Victor Grillo Jr., for medical protection.Mr. Grillo was very joyful to offer Ms. Cappello the medical protection she desired, but it seems there was a catch.Mr. Grillo stated Ms. Cappello could have the medical insurance only if she wore a rooster head masks.”No head, no cost,” Mr. Grillo wrote in an e-mail.We’re not making this up. We could not give you stuff this good.Even with main medical and hospitalization coverage for her young daughter on the road, Ms. Cappello declined to don the hen head, which was a part of a complete hen costume kept in the workplace. You see, according to court docket papers, the workers at Cricket Productions thought of themselves a fun-loving group that always socialized after hours.Apparently, not certainly one of the production place’s playful pranksters thought there was anything odd about making a session within the rooster head a prerequisite to well being coverage.Ms. Cappello did.Saying she became too depressed to work on account of the alleged harassment, Ms. Cappello sought medical consideration and claimed she was unable to work.Of course, this is the Case of the Week, so you know what happens next.Colonel Sanders or Jack Daniels?Ms. Cappello determined to file a claim for her alleged accidents, and an administrative authorized action ensued. Cricket carried no staff compensation coverage, however an administrative legislation judge held that, as a end result of Cricket was doing the business of DTR Advertising, Inc., DTR’s insurer, The Hartford Insurance Co., was responsible for Ms. Cappello’s claim.Based on the opinion of her psychiatrist, Mark Cutler, Ms. Cappello argued Mr. Grillo’s alleged hen head harassment was the predominant contributing reason for her adjustment disorder and major depressive disorder. The administrative law choose agreed and held for Ms. Cappello, but The Hartford appealed, arguing the hen head incident was not the predominant contributing cause of Ms. Cappello’s alleged injuries.Hartford argued there could probably be other potential causes for the alleged accidents, and — on appeal to the Commonwealth of Massachusetts Department of Industrial Accidents in the case of Cappello v. DTR Advertising, Inc. — the judges famous that Ms. Cappello had received earlier psychiatric treatment for issues associated to a divorce and an alcohol-dependent husband.Ms. Cappello rejected the notion that marital warfare or her husband’s shut, private relationship with Jack Daniels and Johnnie Walker caused her accidents.It was all about that hen head.Foul fowl?Because of her preoccupation with the perceived harassment at work and her disbelief that she was being asked to do what her employer asked her to do, which she perceived as very humiliating, she has been unable to return to any work for which she within reason skilled by advantage of her training and job expertise, Ms. Cappello’s psychiatrist told the administrative law judges.In a authorized ruling sure to shock the San Diego Chicken, Mardi Gras revelers, and others who actually take pleasure in sporting rooster head masks, the judges sided with Ms. Cappello.Rejecting the insurer’s argument that there have been other causes for Ms. Cappellos psychiatric points, the judges dominated Ms. Cappello had proven those problems weren’t the cause of her present injuries. Although the judges conceded she had previous psychiatric problems, they famous she had not experienced her present symptoms until the hen head incident.The judges held that Dr. Cutler’s medical opinion glad the Massachusetts standard for predominant contributing reason for accidents established in the Massachusetts Appeals Court choice, May’s Case, and the Massachusetts Supreme Judicial Court choice, Robinson’s Case.In addition, citing Bouras v. Salem Five Cents Savings Bank, the judges held that, as a end result of Dr. Cutler’s opinion satisfied the predominant contributing cause standard, the hen head incident was the one authorized reason for her accidents.”Because the doctor’s opinion successfully ruled out the previous stressors within the employee’s life as causes of her emotional disability, his opinion may be understood to implicate the events at Cricket Productions as the one trigger,” the judges wrote.The Massachusetts case of the chicken head was remanded to the decrease decide on further claims Ms. Cappello made, but she was victorious on this present day…so was her lawyer.For their efforts on behalf of their client and for furthering the jurisprudence of rooster heads within the Commonwealth of Massachusetts, the judges awarded Ms. Cappello’s lawyer 1,488.30 in authorized charges.__________________________Read more on the Washington Examiner: /blogs/opinion-zone/2011/04/law-chicken-heads#ixzz1J7TcDYNfApril 1, 2011The Law of April Fools’ JokesFor our April Fools’ Day version of the Case of the Week, we go to the California Court of Appeal, which provides us with a case touching on constitutional regulation, contracts, defamation, and, in fact, the regulation of April Fools’ jokes. Not surprisingly, our case involves Sasha Baron Cohen, recognized popularly as Borat and Ali G.A 2004 episode of Mr. Cohen’s British tv show obtained his network into a bit of trouble, and it had to pay the alleged target of his jokes ninety,000. When the infuriated supposed topic got here back for more, it ended up in American courtroom, elevating the question: might a reasonable viewer take the show critically, leading to a judgment for defamation?The Art of AmendingOn a 1987 youth journey to Israel, Sasha Baron Cohen started a friendship with a lady known solely as “Jane Doe” in court proceedings. The associates misplaced touch over time, however Ms. Doe followed Mr. Cohen’s more and more successful career as a comedian, and, apparently, Mr. Cohen never forgot Ms. Doe’s real name.On the Aug. 15, 2004, episode of Mr. Cohen’s tv present, Da Ali G Show, Mr. Cohen interviewed the American writer, Gore Vidal. Among the topics of dialog have been the United States Constitution and the apply of amending it.Mr. Cohen asked Mr. Vidal if it were not sometimes better to do away with something quite than amending it. As an instance, Mr. Cohen referred to Ms. Doe. Using her actual name and referring to her with a time period additionally used to describe a female dog, he mentioned Ms. Doe was at all times attempting to amend herself by such means as highlighting her hair, adorning herself with tattoos, and shaving her non-public regions.Mr. Cohen said Ms. Doe’s amending was for naught because he dumped her after he impregnated her. Ms. Doe denied her relationship with Mr. Cohen was ever romantic or sexual in nature.Given what Mr. Cohen claimed had been Ms. Doe’s unsuccessful makes an attempt at amending herself, he reasoned that amending something — together with the Constitution of the United States — was ill-advised.With no apologies to Vidal Sassoon, the individuals of the Eastern Hemisphere, or George Washington, in his position as Ali G, Mr. Cohen went on to counsel that Mr. Vidal was an internationally famous hairstylist, that euthanasia was a method of exterminating the aged in Asia, and that Denzel Washington resided at Mount Vernon.Ms. Doe was not amused.Costly ComedyDa Ali G Show was produced by Britain’s Channel Four Television Corp. And distributed within the United States by HBO. After complaints from Ms. Doe, HBO settled together with her in 2004 for 40,000. As part of the settlement, HBO agreed to edit the episode so Ms. Doe’s name could be eliminated in any future broadcasts.Well, Ms. Doe’s fame — or infamy, depending on ones perspective — continued. When HBO offered the episode on Comcast, it left Ms. Doe’s name within the airing of the show, resulting in one other settlement with Ms. Doe in 2006 with the identical terms because the 2004 settlement, besides this time Ms. Doe received an extra 50,000 payday.Nevertheless, viewers of Da Ali G Show had not heard the final of Ms. Doe.When a good friend of Ms. Doe’s saw the unedited model — that may be the one with Ms. Doe’s name — on YouTube after the second settlement, he contacted her, and they found a viewer in Estonia had uploaded the clip from Finnish tv, which had acquired the unedited model from Channel Four.No extra settlements. Ms. Doe decided to take her battle to court docket.The Law of April Fools’Ms. Doe sued HBO and Mr. Cohen in California state courtroom, and later added Channel Four as a defendant. She sued on a quantity of grounds, including libel, slander, breach of contract, invasion of privacy, and negligent infliction of emotional misery.Channel Four moved for summary judgment — a legal ruling where one aspect wins the case before it even gets to trial — arguing, among other issues, that no cheap particular person might have understood Mr. Cohen’s statements as factual.The trial courtroom sided with Channel Four.”No cheap individual might contemplate the statements made by Ali G on this system to be factual. To the contrary, it’s obvious that the Ali G character is absurd and all his statements are gibberish and intended as comedy. The actor, Sacha Baron Cohen, by no means strays from the Ali G character, who is wearing a ridiculous outfit and speaks in an exaggerated method of a rap artist. Ali G’s statements are equally absurd,” the trial court docket said.Ms. Doe appealed, but she fared no better with the Californi’s Second District Court of Appeal in Doe v. Channel Four Television Corp. Citing circumstances involving comedian Robin Williams and an April Fools’ joke, the appellate court docket agreed that no cheap person might have taken Mr. Cohen significantly. Thus, the court held, there was no defamation.In the case involving Robin Williams, Polygram Records, Inc. V. Superior Court, California’s Third District Court of Appeal held there was no defamation when Mr. Williams did a skit where a wine distributor complained that there was white wine and pink wine, however no black wine.The courtroom famous Mr. Williams said the so-called black wine was tough sufficient to be advertised by Mean Joe Green, was black in color, tasted like urine, and went with anything it rattling well pleased. The court added that no cheap person may have taken Mr. Williams significantly and that to carry the skit defamatory would run afoul of the First Amendment.Likewise, in San Francisco Bay Guardian, Inc. V. Superior Court, California’s First District Court of Appeal held there was no defamation when, in its April Fools’ Day edition, the San Francisco Bay Guardian newspaper ran a fictitious letter from a landlord stating that he found his tenants who had undergone electroshock remedy where far more cooperative as a result of no cheap person would take the faux letter seriously.Today’s authorized lesson is thateven if it includes an electroshocked tenant with shaved privates ingesting black wineits tough to win a defamation action in opposition to a comic.________________________Read extra at the Washington Examiner: /blogs/opinion-zone/2011/03/law-april-fools-jokes#ixzz1ISyc57fbMarch 27, 2011The Law of Cantaloupes and Inflatable SharksHave you ever been actually impressed by advertising displays constructed at your local retailer, where industrious employees create shows of commerce solely slightly less impressive than the Taj Mahal?Well, Joyce Henderson could have felt that means before she broke her hip falling earlier than a marketing temple of stacked cantaloupes at her native supermarket.Adding insult to damage, Ms. Henderson misplaced once more in this week’s Case of the Week as the us District Court for the Eastern District of Oklahoma grappled with the weighty concern of whether cantaloupes are the legal equal of inflatable sharks for premises legal responsibility functions.Cantaloupes of DoomThe story of Henderson v. Harps Food Stores, Inc., started on a fine June day in 2009 when Ms. Henderson visited the Harps Food Store in Fort Gibson, Okla. Harps employees had created a display of cantaloupes, which was truly a giant octagon of wholesome, fruity goodness.Harps displayed the cantaloupes in giant cardboard containers resting on a wood pallet. The cardboard containers were roughly square in shape with the corners barely recessed, forming the muskmelon octagon.Ms. Henderson admitted spotting the pallet beneath the pile, and even considered the pesky pallets potential as a pitfall. Nevertheless, she plowed ahead.While inspecting one of many succulently sweet cantaloupes, Ms. Henderson’s foot caught on the pallet, and he or she harm her hip hitting Harps’ exhausting floor.The stage was now set for Ms. Henderson and Harps to debate the jurisprudence of cantaloupes vis-a-vis inflatable sharks.Ms. Henderson sued Harps in Oklahoma state court docket in a tort motion, alleging Harps was negligent in its harmful show of the killer cantaloupes and in its negligent failure to warn clients of its alleged fruity booby entice.Harps removed the case to federal courtroom and filed a motion for abstract judgment, arguing it was not liable as a end result of the uncovered cantaloupe pallet was an open and obvious situation.Generally, under Oklahoma premises liability law, which utilized despite the precise fact that the case was in federal court docket, businesses are not answerable for damages sustained from these so-called open and obvious situations. However, there is a possible exception in the law for circumstances or defects seen but unseen by a plaintiff.Ms. Henderson and Harps battled over the case legislation. For instance, both events cited the Oklahoma Supreme Court case of Phelps v. Hotel Mgmt., Inc., the place an unsuspecting patron hit her head on an ornamental glass bowl that protruded into the seating space of a hotel foyer.Sure, the factor was open and obvious in the literal sense, but the court in Phelps held a fairly prudent person might not have seen the danger of injury from the protrusion of funky art into the seating area and — for the situation to be open and obvious as a matter of legislation — the potential for injury must also be noticeable.The court in Henderson rejected Ms. Henderson’s reliance on Phelps and another courtroom decision, Zagal v. Truckstops Corp. Of Am., a case the place things went horribly awry in the aisle of a truck stop. The court docket held those instances didn’t apply to Ms. Henderson’s case of the killer cantaloupes because — not solely did Ms. Henderson see the open and obvious assortment of cantaloupes — she knew it posed possible hazard.However, all hope was not misplaced for Ms. Henderson. It was time for her legal professionals to launch a authorized shark attack.But may an inflatable shark really save Ms. Henderson’s case?Shark TaleMs. Henderson’s attorneys cited the Oklahoma Court of Civil Appeals case of Hansen v. Academy, Ltd., where Kimberly Hansen, an unsuspecting customer, was apparently in awe of a large inflatable shark that was part of a boat show on the sidewalk in front of an Academy sporting goods retailer.So mesmerized by the inflatable shark was Ms. Hansen that she proceeded to stroll straight into the tongue of the boat, causing her to trip and break both her arms. Ms. Hansen sued Academy, but a trial courtroom ruled for the sporting goods store, holding that the boat tongue was an open and obvious condition.But, bear in mind…Jaws had a sequel.Ms. Hansen appealed, and the intermediate appellate court ruled for her. Noting an Academy employee testified the aim of the inflatable shark was to get people’s consideration, the appellate court docket reversed the trial court docket’s grant of summary judgment to Academy, holding that, though the boat tongue was visible, the plastic, air-filled fish of terror modified the authorized consequence.”The evidence certainly raised a question of reality as as to if Academy supposed for its prospects to commit their attention to the merchandise on show quite than to the sidewalk,” the appellate court held in Hansen. Unfortunately for Ms. Henderson, U.S. District Judge James Payne wasn’t shopping for the shark argument in her case.Noting that arrows on the cantaloupe boxes really pointed to uncovered pallet on cantaloupe display, Judge Payne held the inflatable shark case didn’t apply.”Because the cantaloupe show actually drew consideration to the alleged hazardous condition, the Hansen case is distinguishable and does not provide an exception to the open and obvious rule,” the choose wrote.The lesson of our Case of the Week? Apparently, at least in Oklahoma, a cornucopia of cantaloupes offers no exception to the open and obvious rule…but, an inflatable shark does._______________________Read extra at the Washington Examiner: /blogs/opinion-zone/2011/03/law-cantaloupes-and-inflatable-sharks#ixzz1HonZsGj9March 13, 2011The Sixth Amendment and another Texas Chicken Ranchby David HorriganIn the movie adaptation of the Broadway musical, The Best Little Whorehouse in Texas, Burt Reynolds, taking half in a Texas sheriff, falls in love with Dolly Parton, portraying the good-natured, warm-hearted proprietor of a neighborhood brothel. That theatrical house of ill-repute was based on a real life bordello known as the La Grange Chicken Ranch.Although many local residents supported the Chicken Ranch — and the entertainment and tax dollars it brought to Greater La Grange — its closing concerned regulation enforcement at the highest levels of Texas authorities.For these whove always wished yet one more sequel, we have one for you. It would not have Ms. Parton, Mr. Reynolds…and even Dom DeLuise. What is does have is an intriguing query of constitutional regulation, which is why it gets to be our Case of the Week.Texas cathouse jurisprudence now considers: Does memory loss render a witness absent for purposes of the Confrontation Clause of the Sixth Amendment to the United States Constitution?Before we get to any of that legal stuff in the case of Woodall v. Texas, let’s check out the story of the most recent little whorehouse in Texas.Naughty HaremPhyllis Anne Woodall could or could not have lots in common with Dolly Parton’s Best Little Whorehouse in Texas character, Miss Mona Stangley, however Texas prosecutors alleged they had been in the identical profession.Ms. Woodall was the co-owner and operator of the Naked Harem, an El Paso, Tex., institution some would check with euphemistically as a “gents’s club.” Ms. Woodall and her business partner, Jeannie Coutta, ran a strip joint empire, El Paso Cosmopolitan, which not solely operated the Naked Harem, but additionally its sibling membership, the El Paso Cosmopolitan Topless Show Bar.Sadly for the women and their clients, those Texas prosecutors thought they have been having slightly too much enjoyable.After repeated incidents of alleged prostitution at the Naked Harem, authorities arrested the women, charging Ms. Woodall with aggravated promotion of prostitution and fascinating in organized criminal activity.At trial, prosecutors called dancers who testified prostitution was plentiful on the club, while Naked Harem loyalists testifying for Ms. Woodall cited Naked Harem coverage forbidding dancers from having sex with its gentile clientele. Ms. Woodall then referred to as a dancer, Lucia Pinedo, to testify.It was a nasty move.Forget Me NotMs. Pinedo testified she sustained memory loss after an vehicle accident and that she couldn’t remember her prior testimony before a grand jury — nor may she keep in mind even being part of the Naked Harem. However, when Ms. Pinedo did not present up for a subsequent day of the trial, prosecutors — over Ms. Woodall’s objections — learn her grand jury testimony for the jury.Before the grand jury, Ms. Pinedo had testified she had intercourse with patrons many times in the membership’s non-public rooms, and — in an unfortunate turn of events for Ms. Woodall — Ms. Pinedo testified that, though she lied about her age to Naked Harem staffers, she was solely 15-years-old when she started dancing at the club. To make matters worse, Ms. Pinedo contradicted the testimony of one of Ms. Woodall’s managers who stated Ms. Pinedo confirmed a delivery certificates as part of her identification upon being hired.Instead, in a second worthy of X-rated variations of High School Musical or Glee, Ms. Pinedo testified her identification to get her job as an exotic entertainer was not her start certificate, but was, actually, her high school ID card.As they did with the La Grange Chicken Ranch, the great people of Texas might flip the opposite cheek when it was just a bunch of adults having consenting, albeit unlawful, enjoyable…prostitution by 15-year-olds is a very different story.After prosecutors made quite a few references to Ms. Pinedo’s impressionable youth during closing arguments, the jury sentenced Ms. Woodall to sixteen years in prison.Ms. Woodall appealed, arguing, among different issues, that introducing Ms. Pinedo’s grand jury testament was a violation of Ms. Woodall’s rights beneath the Confrontation Clause of the Sixth Amendment to the United States Constitution as a outcome of Ms. Pindeo’s memory loss prevented Ms. Woodall from being able to cross-examine her.Constitutional ConfrontationA Texas intermediate appellate courtroom reversed the trial courtroom and sided with Ms. Woodall, holding that permitting prosecutors to read Ms. Pinedo’s grand jury testament to jurors regardless of her memory loss violated Ms. Woodall’s Sixth Amendment Rights as a outcome of the State used out-of-court testimonial statements [the grand jury testimony] about which the declarant [Ms. Pinedo] couldn’t be cross-examined as a outcome of reminiscence loss.The state argued also that, as a end result of Ms. Woodall refused the trial judge’s offer to problem a so-called writ of attachment forcing Ms. Pinedo to return to proceed her testimony, Ms. Woodall was precluded from arguing Ms. Pinedo was absent for Confrontation Clause purposes.However, Ms. Woodall argued that Ms. Pinedo’s reminiscence loss made recalling her futile, and the intermediate appellate courtroom agreed.”She did not bear in mind giving the grand jury assertion, nor may she keep in mind working at the Naked Harem. A writ of attachment would not have changed Pinedo from an absent witness right into a witness obtainable for trial and examination. Her undisputed testament about the automobile accident and ensuing reminiscence loss established that she was unavailable as a witness regarding the related subject matter,” the intermediate appellate courtroom held.Yet, in one other authorized twist, on Mar. 2, the Texas Court of Criminal Appeals, the states highest court docket for legal matters, reversed the intermediate appellate court on both issues.First, citing three U.S. Supreme Court selections, California v. Green, Delaware v. Fensterer, and United States v. Owens, the Texas excessive courtroom rejected the argument that a Confrontation Clause violation could be primarily based on witness memory loss.Second, Ms. Pinedo’s memory loss notwithstanding, the courtroom held Ms. Woodall’s failure to take the trial judge up on the supply to haul Ms. Pinedo back into court was deadly to her Confrontation Clause argument. The courtroom said Ms. Woodard induced the alleged error of which she now complains, and he or she could not argue on appeal that her confrontation rights were violated.In the film, Burt and Dolly went off happily into the sunset. It doesn’t look as though thats happening right here._________________________Read more at the Washington Examiner: /blogs/opinion-zone/2011/03/sixth-amendment-and-another-texas-chicken-ranch#ixzz1HaDgOkKeMarch 6, 2011Labor, Lassie, and the LawIts been a troublesome week for the First Amendment and labor unions, but perhaps not for puppies.In this space, we try to take a look at the lighter facet of the regulation, however there’s simply nothing funny a few Marine making the ultimate sacrifice for his nation or alleged followers of Jesus considering the Messiah desires them desecrating other people’s spiritual services. However, Americas courts never let us down once we need comedian relief, and free speech circumstances aren’t any exceptionThis week, California’s Second District Court of Appeal ruled on a very perplexing constitutional quandary. It’s a question not yet addressed in the present labor unrest in Wisconsin:Does labor union speech enjoy higher constitutional protection than speech about puppies?Well provide the court docket’s answer in Best Friends Animal Socy v. Macherich Westside Pavilion Prop., LLC, in a second, but let’s start off by saying that — not not like fallen heroes and violated funerals — theres nothing funny about animal abuse or unfair labor practices. Nevertheless, what we’ve got here is an appellate court docket of legislation weighing the constitutional rights of terriers versus Teamsters.Puppies and PicketersThe Best Friends Animal Society does good work. Not solely does the Utah-based organization have adoption applications for canines and cats, it has applications for parrots and pigs as well. In addition, it operates an animal sanctuary, and its Pup My Ride program transports canine from overpopulated areas to locations the place they are extra more likely to find properties.Best Friends additionally operates the Puppies Aren’t Products campaign with the stated goals of combating against so-called puppy mills and irresponsible breeding.One of the weapons in Puppies Arent Products arsenal is the staging of protests at purchasing malls where the evil pet mills alleged center men — the pet shops — try and promote their canine cargo.Although Puppies Arent Products bills its mission as a fight in opposition to the puppy mills, not like extra militant animal rights teams, Puppies Arent Products stresses the peaceful nature of its protests…a Gandhi for golden retrievers, if you’ll.Peaceful or not, one purchasing center didn’t wish to give the pet protesters free rein over its institution. When Puppies Arent Products targeted the Barkworks Pups & Stuff store at Los Angeles Westside Pavilion, the owners of the mall swung into action.Not in distinction to abortion protesters at a Democratic convention or anti-war protesters at a Republican conference, the pet protesters had been confined to undesirable areas — on this case, mall house far away from Barkworks. Incidentally, Barkworks denies its canines come from pet mills, stating it takes nice satisfaction in having built a status of bringing healthy, pleased puppies to loving families and homes.Look for the Union Label?Westside Pavilion had rules about when folks could protest in its widespread areas. The guidelines utilized to so-called noncommercial expressive activity, and lined varied forms of expression, such as political and non secular speech, asking for signatures on petitions, and the dissemination of noncommercial leaflets and fliers.The guidelines had been what constitutional legal professionals call content neutral, which means the foundations didnt differ depending on what a speaker was saying. There was just one catch.Labor unions received special treatment.The mall had special guidelines for qualified labor activity, which was outlined, in part, as activity approved by the National Labor Relations Act NLRA or applicable state labor laws.Non-labor expressive activity — such as the puppy protest — was restricted to sure areas of the mall and was topic to sure blackout days, days when no protests were allowed, such because the busy enterprise days of Valentines Day, Halloween, and the Christmas purchasing season.In distinction, labor expressive activity had no blackout dates, and the employees’ expression may take place close to the focused, allegedly union-busting establishment.The litigating Lassie attorneys saw this distinction as the finest way to get the pet protesters inside pawsteps of the alleged villains at Barkworks.Collies in CourtBest Friends sued Westside Pavilion’s house owners in California state courtroom, arguing the mall’s restrictions violated the free speech provisions of article I, part 2 of the California Constitution. Specifically, Best Friends argued, amongst different issues, that it was unconstitutional for the mall to provide labor union protesters preferential remedy over the Puppies Arent Products protesters.Westside Pavilion countered that the restrictions handed constitutional muster and that the mall was compelled to provide labor union protesters particular therapy so as to adjust to state and federal labor regulation.The mall received the first spherical when California Superior Court Judge Linda Lefkowitz ruled against the puppy protesters, holding that, beneath the 1997 California appellate choice, Union of Needletrades, Indus. & Textile. Emp. V. Superior Court, the shopping center was inside its rights to restrict the actions of the pet protesters and that the NLRA and state regulation required the mall to make special accommodations for labor protesters.But, this dogfight wasnt over.Best Friends appealed and located a extra fur-friendly tribunal in California’s Second District Court of Appeal. In a 3-0 choice on Mar. 2, the appellate court docket overturned Judge Lefkowitz, and dominated in favor of the puppy protesters.The appellate court docket rejected the holding of the case on which Judge Lefkowitz relied and as a substitute adopted two different California appellate decisions, H-CHH Associates. V. Citizens for Representative Government and Snatchko v. Westfield LLC, in holding the mall couldn’t limit the puppy protesters in the method it sought, and it rejected the mall’s preferential therapy of labor protesters.The appellate courtroom stated the mall suggests that the regulation compels it to discriminate. But federal and state laws do not require purchasing malls to provide labor speech extra entry to frequent areas than political and other kinds of free speech.Celebrating its victory and the obvious finish of Puppies Arent Products banishment to the darkish corners of the mall the place one would not expect to find Jennifer Grey, Best Friends issued a press release entitled, Nobody Puts Baby in a Corner.______________________________________________Read more at the Washington Examiner:/blogs/opinion-zone/2011/03/labor-lassie-and-law