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08/16/10--19:28: New York Vehicle & Traffic Law: Tireless Wireless (chan 3143108)

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

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

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

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

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

All wrong numbers as far as the court was concerned.

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

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

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

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







09/09/10--15:34: Trial Law: Hunting for Jurors (chan 3143108)

County Court, Sullivan County New York: People v. Robar

Vice President Dick Cheney did it. So too did Robert Robar. Both hunters fired their weapons and struck another hunter. Vice President Cheney’s shot landed him the punch lines on late night TV. Robert Robar’s shot landed him in criminal court.

Robar was hunting on his own property in Sullivan County. Terry Pelton, a trespassing, camouflage-dressed hunter, was stalking deer at the same time. Robar thought he was too. When it moved, he fired. Only it wasn’t a deer.

Pelton was shot in the buttocks and groin. He was not wearing blazing orange or red safety colors to alert other hunters to his presence and as soon as Robar realized he shot a man, he ran to Mr. Pelton, “picked him up and brought him straight to a hospital.” Nevertheless, he was charged with assault in the shooting and his case eventually proceeded to trial.

It is undisputed that the defendant in a criminal action has a right to a jury of his peers. Apparently, for reasons unexplained, Mr. Robar was not looking for hunting buddies to judge his actions. Instead, his attorney used every opportunity and peremptory challenge to excuse jurors who were licensed active hunters (one wonders how their special knowledge would have influenced their thinking, but apparently Robar’s lawyer did not want to find out). On behalf of the state, the Assistant District Attorney trying the case wanted hunters on the panel, and raised a Batson challenge for their systematic elimination from the jury by the defense. An odd case of logic shot to pieces.

The novel issue the court confronted was whether hunters “are a Batson class of protected citizens.” Batson originally held that black people are “a cognizable and protected class of person and a member of said class cannot be denied as a juror based on race alone.” That ruling has been expanded over the years to include Hispanics, Asians, Italian Americans, women and Muslims to name just a few protected classes.

Not only do criminal defendants have a right to a jury of their peers, but so too do the People of the State of New York. Since New York “regulates and licenses this class and this class specifically requires Second Amendment U.S. Constitutional protection,” hunters can be considered some type of protected class. Aware that hunters as a group are not quite the same caliber as say, Hispanics or Muslims, the court created a new class of jurors whose elimination from the panel by peremptory challenge would be considered a Batson-like violation.*

Since excluding hunters was now a Batson-like violation against a fair trial, the People’s Batson challenge was granted (but first deemed by the court to be a Batson-like challenge) and a mistrial was declared.

A long time ago a peremptory challenge by a trial attorney was used for any purpose. Then its use was narrowed to any purpose but the wrong purpose. If that list of proscribed challenges isn’t long enough, we now have the hybrid Batson-like challenge. And if experience is the guide, this hybrid has the potential to bypass its progenitor with even more classes of protected hobbies, professions and skills than the original could ever have anticipated.

If this keeps up, trial attorneys will be hunting for satisfactory reasons to excuse any hostile juror before they ever pull the trigger. Whether this ensures a fair trial, a politically correct trial or a trial by one’s peers is anyone’s guess. But clearly, peremptory challenges are in the courts' sights.

(*On April 28, 2011, the Third Department got the last word on this subject, at least for now: "The fact that hunters may exercise their Second Amendment right — a right certainly not limited to hunters or conferred upon them because they are hunters — does not morph them into a cognizable group for equal protection purposes..." Accordingly, "We reject County Court's unsupported conclusion that the highlighted language was intended to extend Batson's protections to hunters. There is no authority for the proposition, dubious at best, that they are a cognizable group on par with race, ethnicity (or ethnic origin), gender or other status whose exclusion implicates heightened equal protection concerns and scrutiny..." Matter of Robar v. LaBuda. )







09/20/10--10:00: Search & Seizure: Pants on the Ground and a Pistol in Your Pocket (chan 3143108)

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

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

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

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

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

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

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

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

Talk about getting caught with your pants down.






10/18/10--07:01: Free Speech: NO2ST8* (chan 3143108)

US Court of Appeals, 2nd Circuit: Byrne v. Rutledge

Bumper stickers used to be the rage. But with the advent of painted bumpers, their decline was inevitable. Not many people are willing to damage their vehicle for the sake of a few pearls of wisdom (among the all time greats: “Keep Honking. I’m Reloading.”). They are, however, willing to pay a few bucks for a vanity plate, those cryptic DMV authorized messages in letters and numbers that can only be deciphered with near-spontaneous high-speed decoding (e.g., CUL8R).

States do have the right to impose some limits on this form of freeway free speech: No dirty words. No hate messages. And no religious messages, at least not in Vermont.

That is, until the court said no to the state*.

Shaun Byrne applied for plate “JN36TN.” As he said on his application, it meant John 3:16. “The parties agree that Byrne subjectively intended to refer to John 3:16, which states, ‘For God so loved the world, that he gave his only begotten Son, that whosoever believeth in him should not perish, but have everlasting life.’” According to the DMV Byrne’s message was impermissible and would not be approved as a vanity plate. After losing the battle with the DMV Clerk, the DMV Commissioner and the District Court, Byrne looked to a higher authority.

Noting that Vermont’s DMV has permitted such displays as GENESIS (the applicant said it was the band, not the scripture), STJOHN (the island, not the Apostle), BUDDAH (the applicant’s nickname, not the deity), the Court of Appeals determined that Vermont’s reliance on the applicant’s subjective view of the plate was not an appropriate method to determine what was or was not allowable speech. In fact Mr. Byrne himself argued that “the combination JN36TN might have been permissible if his supplied meaning had been secular, for example, if he had put on his application that “[m]y name is John, I am 36, [and] I was born in Tennessee.” The court agreed. Moreover, the restriction on Byrne’s free speech was a tortured view of the separation of church and state.

Ok, the court didn’t say that last thing. I did.

What the court did say was this: “Whatever its stated intent, Vermont's ban on religious messages in practice operates not to restrict speech to certain subjects but instead to distinguish between those who seek to express secular and religious views on the same subjects.” Further, "[u]nder the current law, a motorist's personal philosophy, beliefs, and values are all permissible and frequent topics of expression,” but if the applicant admits that his beliefs are based on some religious teaching or predisposition, the state rejects the application as license plate proselytizing.

“This the state cannot do.”

Mr. Byrne gets his JN36TN plate.

Score this case: 14BYRNE. ST8LOST. GSUS12.






01/05/11--10:01: Search and Cell Phone: Warrantless Wireless (chan 3143108)

Supreme Court of California: The People v. Gregory Diaz

Constitutional law is constantly challenged by changes in the culture. The right to abortion, to own a hand gun, to marry someone of the same gender, all eventually come under constitutional scrutiny. So too do matters less controversial but far more prevalent—matters that were non-existent just 20 years ago—like internet postings, bloggers’ rights and Google satellite photos of our homes and streets. All raise the same question: Can they do or say that? And in our nation of laws (and lawyers), the final answer is usually found somewhere in the Constitution, an amazing document that predates even planes, trains and automobiles.

So how do we deal with cell phones and lawful arrests? Does the Fourth Amendment’s prohibition against unreasonable searches and seizures without a warrant prevent police from seizing and searching the contents of a cell phone incident to a lawful arrest? (think about what might be on a cell phone—numbers, photos, texts, emails and web history, just to name a few personal items). According to the California Supremes, it does not.

When defendant Gregory Diaz was busted for participating in the sale of Ecstasy, his cell phone was seized and its contents subsequently examined by the arresting officer. After denying his involvement in the drug transaction, he was shown a text message from his phone that said “6 4 80” (which like BFF or LOL is shorthand, this time for “[s]ix pills of Ecstasy for $80”). Diaz then admitted his role in the sale.

At trial, however, Diaz pleaded not guilty. He moved to suppress the fruits of the cell phone search, claiming it violated his Fourth Amendment rights. The trial court denied the motion, finding instead that the search was “incident to a lawful arrest” and that no warrant was required. The Court of Appeals affirmed, holding that the phone was “immediately associated with [defendant’s] person at the time of arrest,” and could therefore be searched incident thereto, even if the search of its contents was done some 90 minutes after the arrest.

For the California Supreme Court, the question was whether defendant’s phone was “personal property…immediately associated with [his] person.” The court found that it was, and that a warrantless search of its contents was therefore valid—no different than taking a pack of cigarettes or an item of clothes from an arrestee.

That a phone might contain all sorts of private data was irrelevant to the court. Containers (whether flip phones or glove compartments) can be searched without a warrant incident to a lawful arrest. To attempt to distinguish one container (a cell phone with numbers, texts or digital photos) from another (a shoebox with pictures or letters) would make seizing the item dependent on its character. Too hard a line to draw, according to the court, and one which would favor the computer-toting defendant over the one who brown bags his important info.

Citing the US Supreme Court's decision in United States v. Ross (1982), the California court found that “‘[A] constitutional distinction between “worthy” and “unworthy” containers would be improper.’”

Accordingly, the search of defendant’s phone was valid, the evidence in it could be used against him and his complaint that his rights were violated was without merit.

Or, as Travis Tritt’s old country song puts it, “Here’s a Quarter, Call Someone Who Cares.”

(Cell phone search update April 20, 2011: Michigan police are allegedly using high-tech extractor devices to search and seize the contents of cell phones during routine traffic stops.







03/08/11--12:43: Cut and Paste Pervert (chan 3143108)

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

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

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

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

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

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

There’s a disturbing lesson here for everyone.

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






03/22/11--12:00: Sharia Law: Core Principles or Courtroom Koran (chan 3143108)

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

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

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

Again, your stand determines how this sits.

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

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

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

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

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

God only knows.






04/20/11--12:07: Emotional Distress: Baby Got Back (chan 3143108)

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

Think of this as nursery school:

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

No harm, no foul.

Not quite, according to Ms. Williams.

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

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

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

Case dismissed.

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






05/23/11--14:36: Open Containers: Absolut Justice (chan 3143108)

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

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

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

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

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

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

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

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

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






06/15/11--08:25: High Speed Chases: Shifting Gears at Sentencing (chan 3143108)

US Supreme Court: Marcus Sykes v. US

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

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

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

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

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

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

Let’s just say Marcus drove a hard bargain.







07/08/11--09:18: No Right to Privacy: GPS SOS for Marital BS (chan 3143108)

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

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

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

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

He sued Innovative for invasion of privacy.

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

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

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

Talk about being on the road to divorce.







08/31/11--13:15: Infliction of Emotional Distress: The Mother of All Divorces (chan 3143108)

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

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

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

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

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

The lower court agreed and dismissed all claims, stating,

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

Bad mothering is just not actionable.

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

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

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

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

Case dismissed. Again.

This isn’t just a bad divorce.

It’s a divorce from reality.

And we wonder why people hate lawyers.






11/25/11--10:22: No Right To Privacy: GPS and the Road to Unemployment (chan 3143108)

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

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

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

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

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

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

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

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

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

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

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

So smile for the cameras.






12/20/11--12:45: Free Speech: Twitter Twits (chan 3143108)

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

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

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

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

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

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

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

They did not.

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

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

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

The alternative is unthinkable—nay, unspeakable.






01/11/12--11:02: Sharia Law: Constitutional Ban or Bane? (chan 3143108)

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

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

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

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

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

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

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

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

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

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

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

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

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