Bow Ties, the TARDIS & Court Opinions

January 31, 2013

Unless you have been time locked in the The Last Great Time War, most science fiction fans recognize that Matt Smith’s 11th Doctor has ushered in a Bow Tie Renaissance.

Doctor Who, without question, has done wonders for bow tie awareness with “Bow Ties Are Cool.” However, lawyers and judges have worn bow ties for as long as there has been the United States of America.

Great bow tie wearing American legal minds have included Clarence Darrow, John Quincy Adams, Joesph Welch, John Paul Stevens and Abraham Lincoln.

You also cannot say “bow tie” without saying Winston Churchill.

I personally made the switch to bow ties in 2007, so I would stand out from other speakers on eDiscovery. Bow ties are also just cool.

Case in point: Before a community legal event, the elected District Attorney and Public Defender both complimented me on my bow tie, demonstrating bow ties can bring both sides in the administration of justice together.

What have judges said about bow ties in court opinions over the years? Let’s review the legal valet of bow ties.

Residual Fear of Bow Tie Wearing Law School Professors

Some lawyers and judges had rough encounters with bow tie wearing professors in law school. Exhibit A of such negative long term memories:

This is a difficult case. It involves several discrete areas of New York contract law coupled with imperfect facts; the combination of which is appropriately found on the pages of cruel contracts exams given by law professors clad in bow ties. Nevertheless, pursuant to this Court’s diversity jurisdiction, the following facts were adduced and legal issues raised by the Parties for this Court to resolve.

Grandis Family P’ship v. Hess Corp., 588 F. Supp. 2d 1319, 1321 (S.D. Fla. 2008).

The Clothing of Contempt

Justice Joseph Boyd from the Supreme Court of Florida made the following point in a dissenting opinion on whether someone could be held in contempt based on courtroom attire (in the case, a string tie):

It is interesting to observe that the female Assistant Attorney General who appeared before this Court against petitioner was wearing an attractive coat, shirt and tie which would have been considered extremely unorthodox forty years ago. Apparently if the male petitioner in this instance had been wearing the same coat, shirt and tie worn by the female Assistant Attorney General the trial courts would not have cited him for contempt. The irony of the situation is further illustrated by the fact that if petitioner should become a judge and should determine it proper for all male attorneys to wear string ties when appearing before him, he might well cite all non-conforming members of the Bar for contempt. If trial judges can require male attorneys to wear ties preferred by said judges then those who wear bow ties may require the wearing of bow ties and those who wear blue ties may be offended by those who wear red ties.

Specifically, it is my opinion that judges are not permitted by the Federal or State Constitutions, statutes or rules of court, to hold an attorney in contempt for wearing any type of clothing in courtrooms so long as such clothing does not interfere with the proper administration of justice or demonstrate disrespect for the court or judicial proceedings.

Sandstrom v. State, 336 So. 2d 572, 578-579 (Fla. 1976).

Bow Ties & Religious Freedom Under the First Amendment

In a case pertaining to what sorts of ties a prisoner could wear, the Court had to address whether prohibiting the Plaintiff from wearing a multi-colored bow tie violated his religious freedom in prison.

A Department of Corrections policy directive, No. 4911, lists types of clothing that inmates are permitted to wear. The list of acceptable items includes “Neckties – cloth, solid colors only,” and “Bow ties.” Since a bow tie is a type of necktie, and the directive specifies that only solid-color neckties are permitted, the directive is reasonably read as allowing solid-color bow ties and prohibiting multi-colored bow ties. Defendants introduced evidence that they informed Allah that his confiscated bow tie was unacceptable not because it was a bow tie, but only because it was multi-colored, and that there was no institutional objection to his having solid-color bow ties. Since there was evidence that wearing any color bow tie is an acceptable exercise of the Nation of Islam religion, the trial court’s conclusion that the prohibition against Allah’s wearing a multi-colored bow tie did not infringe his rights was not erroneous.

Allah v. Irvin, 1995 U.S. App. LEXIS 39868, 2-3 (2d Cir. N.Y. Nov. 17, 1995).

Bow Tie Wearing Jurors: The Scourge of Criminal Defense Lawyers

Judge William Hungate stated the following regarding peremptory strikes, jury selection and bow ties:

Some well-known and successful criminal defense lawyers have expressed views about jurors that to others may seem idiosyncratic, if not absurd. Percy Forman, one of the more successful, is leary of Germans, Russians, and others with a strong sense of law, order, and “tribal tradition.” Louis Nizer has said he is suspicious of prospective jurors with beards or bow ties: “They’re usually individualists who will try to win a jury over to their view.“

United States v. Johnson, 721 F. Supp. 1077, 1081 (E.D. Mo. 1989)(Emphasis added).

All things considered, Louis Nizer did have a valid point on people who wear bow ties: We tend to “think different” and are not afraid to stand out.

Ingratiating Bow Ties

Supreme Court Justice John Paul Stevens, a long time bow tie wearing justice, made the following point in dissent with bow ties as an example, simultaneously showing the contrarian nature of some bow tie wearers:

Consider the following scenario. A crafty homeowner in need of a mortgage, having learned that the bank’s loan officer is a bow tie aficionado, purchases his first bow tie to wear at their first meeting. As expected, the loan officer is wearing such a tie, which, incidentally, the prospective borrower considers downright ugly. Nevertheless, thinking that flattery will increase the likelihood that the officer will be favorably disposed to approving the loan, the applicant swallows hard and compliments the officer on his tie; he then volunteers the information that he too always wears a bow tie. This is a lie. Under the majority’s interpretation, this person could spend 30 years in federal prison. He made a “false statement.” 18 U.S.C. § 1014. In fact, until that day he had never worn a bow tie. And the statement was made “for the purpose of influencing” the bank. Ibid. The applicant subjectively hoped that the loan officer–flattered and feeling a sartorial common ground–would be more likely to approve his mortgage.

United States v. Wells, 519 U.S. 482, 513 fn 14 (U.S. 1997).

The FBI vs Bow Tie Attorney

Litigation can raise blood pressure and cause out-of-character behavior. In one case, a FBI Agent threatened a bow tie wearing attorney. The attorney invited the Agent to meet him outside and also reported the threat to the Court. The judge stated the following:

Agent Long is an experienced FBI agent. Mr. Skepnek, an able attorney with a jovial personality whose in-court manner can be characterized as that of an exuberant gladiator, has a penchant for bow ties. He played football at the University of Kansas and is approximately ten years younger and forty pounds heavier than Agent Long.

Agent Long’s unprovoked conduct in the courtroom raises questions not only as to his training and ability as an FBI agent but also as to his judgment and belief in his own physical capabilities. In light of Mr. Skepnek’s strongly stated disclaimer that any intended intimidation was effective, the Court finds that the quality of the defense afforded the defendant has not been jeopardized.

The Court finds further that perhaps the appropriate sanction would be simply to direct Agent Long to attempt to carry out his threat. While Mr. Skepnek might be willing to “participate” in the imposition of this sanction as evidenced by his response to Agent Long, the Court concludes that such sanction might very well constitute cruel and unusual punishment in contravention of the eighth amendment to the United States Constitution. So, because the defendant has withdrawn any further demand for sanctions, the Court happily deems the matter MOOT.

United States v. Ryans, 1989 U.S. Dist. LEXIS 18274, 2-3 (W.D. Okla. May 5, 1989)

I’m Your Private Trademark Lawyer

In a case that could have had attorneys fighting over who would argue the merits, and others perhaps having tearful memories on how they paid off law school loans, one Court provided the trademark history of Chippendales’ “Cuffs & Collar” uniform, complete with a diagram:

The applicant, Chippendales, is in the business of providing adult entertainment services for women. It opened its first strip club in Los Angeles in 1978. In 1979, Chippendales performers began wearing an abbreviated tuxedo–wrist cuffs and a bowtie collar without a shirt–as part of their act. This costume, referred to as the “Cuffs & Collar,” was featured prominently in Chippendales’ advertising and performances over the past several decades.

It is set forth below:
In November 2000, Chippendales filed an application to register the Cuffs & Collar trade dress. In 2003, the United States Patent and Trademark office (“PTO”) issued Registration No. 2,694,613 for the Cuffs & Collar for “adult entertainment services, namely exotic dancing for women.” U.S. Trademark Registration No. 2,694,613 (the “‘613 mark”). A mark that is inherently distinctive qualifies for registration under the Lanham Trademark Act (“Lanham Act”). See Pub. L. No. 79-489, 60 Stat. 427 (1946) (codified at 15 U.S.C. § 1051 et seq.). A mark can also qualify for trademark protection under Section 2(f) of the Lanham Act if the mark has become distinctive through use in connection with the applicant’s goods in commerce, known as acquired distinctiveness. See 15 U.S.C. § 1052(f) (“Section 2(f)”).

Although Chippendales submitted evidence both of “inherent” distinctiveness and, alternatively, “acquired” distinctiveness under Section 2(f) of the Lanham Act, the examining attorney in 2003 concluded that the applicant was only entitled to a registration based on acquired distinctiveness. Because of the existing procedure at the PTO at the time of the decision, Chippendales could not contest the basis of the examining attorney’s decision. The sole option at that time would have been for Chippendales to request that the registration be cancelled and that the mark be remanded for reconsideration. Chippendales was about to commence an infringement action based on the registration and thus opted not to initiate the cancellation of its registration under Section 2(f). The ‘613 mark became incontestable in 2008 under 15 U.S.C. § 1065.

In re Chippendales USA, Inc., 622 F.3d 1346, 1348-1349 (Fed. Cir. 2010).

A Lawyer & His TARDIS

We began with Doctor Who and should end with Doctor Who. Ironically, there are no US court opinions referencing Doctor Who over the last 50 years.

In fact, the references to TARDIS have nothing to do with Time And Relative Dimension In Space.

In one 2011 case, “Tardis” referred to a UK product that pertained to wire strippers and can machines. J. McIntyre Mach., Ltd. v. Nicastro, 131 S. Ct. 2780, 2797 (U.S. 2011).

TARDIS is also referenced in cases involving air traffic safety. TARDIS is an acronym for “Terminal Automated Radar Display Information System,” which is an inexpensive radar system designed for air traffic control. Collins v. United States, 564 F.3d 833, 838 (7th Cir. Ill. 2009).

The First Question

There is no question there are geek judges, as evidenced in court orders referencing Star Trek and Star Wars. Rassilon’s gauntlet is now thrown down for a judge to include a Doctor Who reference in a court opinion.

The question remains, who will be the first to reverse the polarity of the neutron flow and cite Doctor Who in a footnote?

Flash Gordon & The Planet of Liability

Josh Gilliland

January 21, 2013

The 1936 Flash Gordon story Planet of Peril, Chapter 1 to the Space Solders serial, present very interesting issues in air travel and the duty of a common carrier.

Alex Raymond’s classic charters Flash Gordon (Buster Crabbe) and Dale Arden (Jean Rogers) made their big screen debut in 1936 during an ill-fated flight in a meteor shower. In what would seriously disturb any traveler in post 9-11 America who complain about taking off their shoes, the pilot told the passengers they could put on parachutes and bail out. The pilot further stated:

There is a parachute under every seat. We were ordered to bring them aboard this morning in the case of any trouble.

In a remarkably limited display of screaming, passengers put on parachutes and bailed out of a trimotor aircraft.

The Duty of Common Carriers

Everyone who has ridden a bus or taken a plane flight has been on a common carrier.

A “common carrier” is an regulated industry that transports goods or individuals and is responsible for the loss of goods during the transportation. Given the nature of transporting people or goods, a carrier owes a passenger “the highest degree of care.” Brasseur v. Empire Travel Serv., 1995 U.S. App. LEXIS 36967, 2-4 (9th Cir. Cal. Dec. 15, 1995), citing Marshall v. United Airlines, 35 Cal. App. 3d 84, 110 Cal. Rptr. 416, 418 (Cal. Ct. App. 1973).

Common carriers have a heightened standard of care because “during travel a passenger is exposed to numerous hazards while his or her freedom of movement is entirely under the control of the carrier.” Brasseur, at *2, citing Orr v. Pacific Southwest Airlines, 208 Cal. App. 3d 1467, 257 Cal. Rptr. 18, 21 (Cal. Ct. App. 1989).

The duty applies while passengers are in transit and “until they have safely departed from the carrier’s vehicle.” Id. Moreover, “[u]ntil the passenger reaches a place outside the sphere of any activity of the carrier which might reasonably constitute a mobile or animated hazard to the passenger the rule of utmost care and diligence . . . still applies.” Brasseur, at *2-3, citing 110 Cal. Rptr. at 419 (quoting Brandelius v. City & County of San Francisco, 47 Cal. 2d 729, 306 P.2d 432, 436 (Cal. 1957)).

It is also worth noting what “ditching equipment” is required under the law for commercial aircraft:

(a) Emergency flotation and signaling equipment required by any operating rule in this chapter must be installed so that it is readily available to the crew and passengers.

(b) Each raft and each life preserver must be approved.

(c) Each raft released automatically or by the pilot must be attached to the airplane by a line to keep it alongside the airplane. This line must be weak enough to break before submerging the empty raft to which it is attached.

(d) Each signaling device required by any operating rule in this chapter, must be accessible, function satisfactorily, and must be free of any hazard in its operation.

14 CFR 23.1415.

Parachutes are not on the list. Just imagine how messy it would be if 787’s had ejection seats and one went off at 39,000 feet.

No Bailing Out on Liability

The transcontinental airline was 1) a common carrier and 2) owed Flash and Dale a heightened duty of care.

Given the planetary dangers Earth was experiencing, including the parachutes enabled the passengers to escape the doomed aircraft.

However, if the danger was so great that the plane was required to add parachutes (which no commercial airline does), it probably would have been safer NOT to fly in adverse weather (if a meteor shower can be considered weather) and subject the passengers to the danger of bailing out of a plane without skydiving or survival training.

On the flip side, parachute instructions would make for a very entertaining in-flight safety briefing.

Once the passengers were safely on the ground, the heightened duty of care would not have ended, because parachuting into an unknown area would not leave the passengers safe and the airline free of responsibility. The airline could not argue that the passengers were “outside the sphere of any activity of the carrier which might reasonably constitute a mobile or animated hazard to the passenger,” because the passengers were scattered about the countryside wherever the wind took them.

By way of example, a passenger was not owed a heightened duty because the airline did not warn her about the possibility of a hurricane hitting after being safely delivered to Cancun. Brasseur v. Empire Travel Serv., 1995 U.S. App. LEXIS 36967, 4-5 (9th Cir. Cal. Dec. 15, 1995). This case would be very different than Flash’s situation, since the airline did not deliver the passengers safely to their destination. Moreover, the airline also knew of dangerous conditions prior to takeoff from the meteor storm. As such, a Court would likely find an airline that requires passengers to bail out of a plane is not free from ensuring the passengers’ safe rescue, thus ending the airline’s heightened duty of care.

However, getting on an untested rocket ship would be an unforeseeable intervening factor that an airline could not be responsible for continued passenger safety.

A Rocket to Mongo & Heightened Duty of Care

The airline was not the only common carrier in Flash Gordon: Professor Zarkov’s rocket arguably would be considered a common carrier. Moreover, society would require people who build rockets in their backyard to be responsible for the safety of those anywhere near such a potentially dangerous machine.

Professor Zarkov negotiated with Flash to join him on his spaceflight to save the Earth from the planet Mongo on a collision course with Earth. Gordon agreed, provided Dale could join them [Note, unlike the 1980 movie, Zarkov did not kidnap Flash and Dale at gunpoint]. While this is a very basic example of contracting for transportation (without a liability release and covenant not to sue), Zarkov providing transportation to another planet would expose Flash and Dale to numerous hazards while their freedom of movement was entirely under the control of Zarkov. As such, Zarkov would owe them a heightened duty of care on their spaceflight.

Highlighting the dangers to Dale and Flash (and legal risk to Zarkov), Professor Zarkov forgot to turn on the oxygen before take off, causing a significant life threatening risk to his passengers from asphyxiation.

Upon landing on Mongo, the passengers immediately face numerous risks, including giant lizards, being captured by armed and well-armored soldiers, fighting men with fangs and an alien culture where the men wore short-shorts without pockets (One of the few times in SciFi where the female characters arguably had more clothing).

Professor Zarkov’s heightened duty of care may have ended when they safely arrived on Mongo (albeit for a brief time), just as the airline did not have a duty to warn about a hurricane after getting a passenger safely to her destination. Moreover, it would be unreasonable for Zarkov to be held responsible for the unforeseeable actions of Ming, the Shark Men, Vultan or Princess Aura. Flash and Dale arguably assumed the risk of the unknown when they agreed to fly into space with Professor Zarkov.

The Princess vs The Damsel in Distress

Finally, it is worth noting that the stronger female character was Princess Aura, Ming’s daughter. Aura was willing to stand up to her father Ming, hit her targets in a ray gun fight, showed no fear in taking immediate action and dressed down those threatening her. However, she was both possessive and manipulative, which were serious negatives.

Dale Arden, on the other hand, constantly needed to be saved by Flash. A relationship based on perpetually rescuing someone would be as healthy as flying on a commercial airline that required parachutes. Fortunately, the character was stronger in the 1938 Flash Gordon’s Trip to Mars.

Flash Diani — Yes, my brother Gabe Diani before an audition.

Hansel and Gretel: A Lawyer’s Fairy Tale

Josh Gilliland

January 15, 2013

The fairy tale of Hansel and Gretel is not one that ends with children growing up to be witch hunters, but learning to fight evil with something more powerful than any witchcraft: civil litigation and criminal prosecution.

Hansel and Gretel at its core has more legal issues than candy on a gingerbread house. Let’s follow the legal breadcrumbs.

Counting Pebbles: The Factual Overview

Once upon a time… a father, who was a down on his luck wood cutter, was unable to provide for his children and wife. The step-mother had a creative solution to the family’s financial problems: Leave the Children in the Woods.

“The children must go, we will take them farther into the wood, so that they will not find their way out again; there is no other means of saving ourselves!”

The Step-Mother, Hansel & Gretel

In their quest to be parents of the year, the father gave in to his wife’s demands and left his children in the forest to die, not once, but twice.

The abandoned children’s situation went from bad to worse with the discovery of a gingerbread house occupied by a witch. After being captured, Hansel was kept in a stable to be fattened up for slaughter, while Gretel was fed only crab-shells and exploited for child labor to help murder her own brother.

Gretel killed the Witch, who was planning to bake Gretel, by trapping the Witch in a very large oven, burning the Witch alive.

The siblings escaped with the Witch’s pearls and precious stones, ultimately finding not only their way home to their father. As an added bonus, Hansel and Gretel’s step-mother had died in their absence.

Possible Civil & Criminal Causes of Action Against the Parents

Virtually every state has laws on parents providing for children. California law requires that “the father and mother of a minor child have an equal responsibility to support their child in the manner suitable to the child’s circumstances.” Cal Fam Code § 3900.

Hansel and Gretel’s parents had a legal obligation to support their children. This would require not just feeding the children, but not willfully leaving them in the woods to fend for themselves. Granted, the step-mother might not have legally adopted Hansel and Gretel, but she would be a legal guardian with the duty to not harm the children.

Leaving Hansel and Gretel in the woods overnight with the intent to abandon them would be child endangerment in any state. California defines child endangerment as follows:

(a) Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.

(b) Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor.

Cal Pen Code § 273a.

A District Attorney could prove beyond a reasonable doubt that leaving Hansel and Gretel in the woods would meet every element of California Penal Code § 273a(a) with the many harms that could have befallen the children and ultimately did with the Witch.

At a minimum, Hansel and Gretel’s father and step-mother failed to provide for their children and willfully endangered them by leaving the children in the woods. There is simply no necessity defense to save oneself by leaving offspring to die in the woods. Moreover, civil causes of action against the parents would run the gambit from negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, and conspiracy.

Season of the Witch

The old woman had only pretended to be so kind; she was in reality a wicked witch, who lay in wait for children, and had only built the little house of bread in order to entice them there. When a child fell into her power, she killed it, cooked and ate it, and that was a feast day with her.

Hansel & Gretel

A civil litigator would act like a kid who found a candy gingerbread house in bringing a case against The Old Witch. Additionally, a criminal trial would rival that of OJ Simpson, Casey Anthony, and the Lindbergh baby rolled into one on steroids.

The Civil Action

The civil action against the Witch would focus on the following facts:

The Witch Owned a Gingerbread House to Entice Children

The Witch kept Hansel in a stable, well-fed, with the intent of eating him

Gretel was fed only crab-shells

Gretel was forced to work for the Witch

The Witch planned to kill and eat both children

California law does not specifically address cannibalism or attempted cannibalism, however, it is a form of Battery (along with Murder and Desecration of a Corpse if the act is completed). To prove Battery, Hansel and Gretel would have to show that 1) the Witch touched them with the intent to cause harm; 2) that Hansel and Gretel did not consent to the touching; and 3) that Hansel and Gretel were harmed by the Witch’s conduct. 1-13 California Forms of Jury Instruction 1300.

Hansel and Gretel could prove all of the elements for Battery from 1) the Witch captured them; 2) Hansel was forcibly held in a stable; 3) the Witch shook Gretel awake after imprisoning Hansel; and 4) and the Witch’s physical conduct caused harm, not just physical, but likely emotional as well from their imprisonment.

Hansel and Gretel could also prove a claim of Intentional Inflectional of Emotional Distress because of the Witch’s willful conduct. The elements of this claim are:

1. The Witch engaged in a willful violation by kidnapping the children with the intent to eat them;

2. The Plaintiffs suffered serious emotional distress; and

3. The defendant’s willful violation of statutory standards was a cause of the serious
emotional distress.

BAJI 12.80.

The facts to prove the intentional infliction of emotional distress would include the imprisonment in the stable, feeding Gretel crab-shells, various insults and the Witch’s statements on whether Hansel was fat enough to be eaten.

The Criminal Trial

A District Attorney would melt the Witch with a bucket of water for her crimes against the children. The main charges would include Kidnapping, Aggravated Mayhem, Torture, and Attempted Murder.

Kidnapping is defined under California law as follows:

(a) Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping.

(b) Every person, who for the purpose of committing any act defined in Section 288, hires, persuades, entices, decoys, or seduces by false promises, misrepresentations, or the like, any child under the age of 14 years to go out of this country, state, or county, or into another part of the same county, is guilty of kidnapping.

(c) Every person who forcibly, or by any other means of instilling fear, takes or holds, detains, or arrests any person, with a design to take the person out of this state, without having established a claim, according to the laws of the United States, or of this state, or who hires, persuades, entices, decoys, or seduces by false promises, misrepresentations, or the like, any person to go out of this state, or to be taken or removed therefrom, for the purpose and with the intent to sell that person into slavery or involuntary servitude, or otherwise to employ that person for his or her own use, or to the use of another, without the free will and consent of that persuaded person, is guilty of kidnapping.

(d) Every person who, being out of this state, abducts or takes by force or fraud any person contrary to the law of the place where that act is committed, and brings, sends, or conveys that person within the limits of this state, and is afterwards found within the limits thereof, is guilty of kidnapping.

(e) For purposes of those types of kidnapping requiring force, the amount of force required to kidnap an unresisting infant or child is the amount of physical force required to take and carry the child away a substantial distance for an illegal purpose or with an illegal intent.

Cal Pen Code § 207.

The Witch purposefully had a gingerbread house with candy to entice unsuspecting to come onto her property to be captured and eaten. This action would fall under subsection (b); holding Hansel in the stable and threatening Gretel would violate subsection (a).

The Witch could also be charged with aggravated mayhem, because of the extreme indifference she showed to the children: Hansel was fattened in a stable to be slaughtered; Gretel was fed only crab-shells and underwent physical and emotional abuse for over a month while in the criminal custody of the Witch.

Aggravated Mayhem is defined as follows:

A person is guilty of aggravated mayhem when he or she unlawfully, under circumstances manifesting extreme indifference to the physical or psychological well-being of another person, intentionally causes permanent disability or disfigurement of another human being or deprives a human being of a limb, organ, or member of his or her body. For purposes of this section, it is not necessary to prove an intent to kill. Aggravated mayhem is a felony punishable by imprisonment in the state prison for life with the possibility of parole.

Cal Pen Code § 205.

The State could prove under the facts the Witch’s actions manifested extreme indifference to the physical or psychological well-being of another person and would warrant a guilty verdict.

The same facts that demonstrate Aggravated Mayhem would also support a finding the Witch tortured Hansel and Gretel. Torture is defined as follows:

Every person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in Section 12022.7 upon the person of another, is guilty of torture.

The crime of torture does not require any proof that the victim suffered pain.

Cal Pen Code § 206.

There is no question the Witch planned to murder Hansel and Gretel for food. Thus, this raises the charge of attempted murder.

To prove the Witch was guilty of attempted murder, the State would have to prove that 1) the Witch took at least one direct but ineffective step toward killing Hansel and/or Gretel and 2) the Witch intended to kill both Hansel and Gretel. 1-500 CALCRIM 600.

The jury instructions explain a “direct step” as follows:

A direct step requires more than merely planning or preparing to commit murder or obtaining or arranging for something needed to commit murder. A direct step is one that goes beyond planning or preparation and shows that a person is putting his or her plan into action. A direct step indicates a definite and unambiguous intent to kill. It is a direct movement toward the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt.

1-500 CALCRIM 600.

The Witch had Hansel imprisoned in a stable and fed him with the intent to kill him as a meal. Additionally, the Witch attempted to physically inspect Hansel to see if he was fat enough to be slaughter.

In the case of Gretel, the Witch started the fire in her oven with the intent to bake Gretel alive. All of these actions demonstrated a definite and unambiguous intent to kill, as required by law to prove attempted murder.

Closing Arguments

Hansel and Gretel is about two witches: One witch is a case study in parental gross negligence and malfeasance where a step-mother convinced her husband to leave his children in the woods; the other witch is the traditional version of evil that eats children.

However, no witch is above the law. All of the wrongs inflicted by the parents and the witch would result in civil litigation and criminal prosecution.

Troubling Tribbles: The Ultimate Invasive Species

Josh Gilliland

January 4, 2013

Just because something is cute and snugly does not mean it isn’t dangerous.

Nothing is better evidence of this then perhaps the most dangerous [fictional] invasive species:

A Tribble from Star Trek.

Tribbles are a purring ball of fur that snuggle and make people feel good, including Vulcans. The creatures were introduced in the Star Trek TOS episode Trouble with Tribbles; returned in the Animated Series episode More Tribbles, More Troubles; had cameos in Star Trek III: The Search for Spock and Star Trek Generations; and appeared again in the Star Trek: Deep Space 9 episode Trials and Tribble-ations.

An invasive species is an animal which is introduced into a completely new environment to the detriment of indigenous species. Examples include Zebra Muscles in the Great Lakes, Asian Carp, or Pythons in Florida.

The US Congress described the dangers caused by invasive species as follows:

When environmental conditions are favorable, nonindigenous species become established, may compete with or prey upon native species of plants, fish, and wildlife, may carry diseases or parasites that affect native species, and may disrupt the aquatic environment and economy of affected nearshore areas;

16 USCS section 4701(a)(2).

Tribbles lack the gross factor of Zebra Muscles or the terror of a 17 foot snake surprising a birthday party in Florida. While it is extremely unlikely Tribbles will play any role in Star Trek Into Darkness, Tribbles would pose a greater environmental threat to an entire planet than any of the current invasive species on Earth.

Tribbles are born pregnant and give birth when fed. While not as messy as getting a Gremlin wet, the mere introduction of a Tribble in an ecosystem would cause an immediate threat to the food supply and cause a Tribble population explosion. Even if hawks, alligators, lions, sharks and every predator on Earth developed a taste for Tribble, they would not be able to keep up with Tribble reproduction.

With that said, Tribbles might be the answer to the problem of world hunger; however, selling humanity on eating cute purring animals would be difficult.

There would also be challenges in mobilizing Tribble slaughterhouses and the industrial capacity to keep up with the rate of reproduction.

The United States Government and States have fought invasive species a number of ways. One is prohibiting conduct that introduces the animals into the ecosystem, such as the discharge of untreated water in the ballast tanks of foreign cargo ships in US waters. Other “hands-on” remedies include adding rotenone (a fish kill agent) to waterways in fighting Asain carp.

The Klingons in Star Trek The Animated Series created a Tribble predator called a Glommer to hunt and eat Tribbles.

Klingons creating a creature to hunt an invasive species carried a fair amount of risk, because they were adding another animal to the environment.

While the Glommer could have been engineered to only eat Tribbles and die when the food supply was exhausted, such a plan is not comparable to adding rotenone to a lake to kill Asian carp. Simply put, there is risk in adding another animal to the mix.

However, the Klingons did send a fleet to destroy the Tribble homeworld (Referenced in Trials and Tribble-ations). This plan for Tribble-cide was more in line with a traditional “fish kill” to eliminate an invasive species…if the invasive species were as cute as baby seals.

The Federation would have several options to control the introduction of Tribbles to Earth.

One option is to outright prohibit ships bringing Tribbles to Earth, much like the United States Congress (and the Coast Guard) prohibiting ballast water from being discharged in US waters from international shipping.

This plan would require Star Fleet’s equivalent of the Coast Guard conducting vessel inspections of star ships in orbit prior to any cargo being sent to the service. There also might be a technical solution of programming transporters to not beam Tribbles to Earth.

Another option is to classify Tribbles as exotic pets that are dangerous wild animals (like a ferret with rabies) and order the animals destroyed. (See, Raynor v. Maryland Dep’t of Health & Mental Hygiene, 110 Md. App. 165, 182 (Md. Ct. Spec. App. 1996)).

The Federation most likely enacted laws prohibiting the introduction of Tribbles to Earth, unless they had been “neutered.” The evidence for this “middle-ground” regulation were 1) the Tribble cameo in Star Trek III on Earth in the bar where McCoy was attempting to book a flight to Genesis and 2) a child is seen with a Tribble when the Enterprise-D is crashing in Star Trek Generations. There was no evidence later in Star Trek III of a Tribble population explosion and remediation efforts or the Enterprise-D survivors cooking Tribbles for food while awaiting rescue.

Further evidence for the “altered” Tribbles theory comes from More Tribbles, More Troubles. Cyrano Jones poorly attempted to genetically alter Tribbles to not reproduce, which ultimately Dr. McCoy corrected to create “safe” Tribbles that reproduced at a much slower rate. While this logic is based on the lack of a Tribble population explosion, it is a logical deduction given the fact a Tribble was present on Earth without incident in Star Trek III: The Search for Spock or Star Trek Generations.

An Attorney’s Christmas Special: Legal Issues in Christmas Movies

Josh Gilliland

December 24, 2012

There is no shortage of Christmas movies that have an overall theme of compassion, giving and showing good will to others.

Many of these films set a high bar for “feel good” family entertainment.

There is also no shortage of lawyers who watch Christmas movies.

And where lawyers are watching movies, they are considering different legal issues.

Let’s review some of the big legal issues in some of the holiday classics.

It’s a Wonderful Life

There is no question It’s a Wonderful Life is one of the best Christmas movies, if not Jimmy Stewart’s finest film.

Here are some of the issues that cause lawyers pause:

Zu Zu’s statement that “teacher says, every time a bell ring, an angel gets his wings” is an alert that the “separation of church and state” may have been violated in a public school.

Mr. Gower’s near miss with manslaughter due to poisoned medication and child abuse by hitting George Bailey.

Young George Bailey would have committed murder if he knowingly delivered poisoned medicine to a sick child.

Just what was Violet’s job?

Mr. Potter kept the $8,000 and avoided getting arrested.

A Christmas Story

There is justified concern a child could hurt themselves with a BB Gun. The safe alternative gift recommended by different characters in A Christmas Story is a football.

However, footballs might be just as dangerous as a Red Rider BB Gun, given the number of concussions professional players have suffered. While there is no totally safe sport, a baseball might have less risk of physical injury, but more risk for broken windows.

ELF

Elf raises many legal issues.

Consider the following:

How was Buddy adopted by Papa Elf?

Was there a claymation judge at the North Pole?

Did the orphanage ever file a missing person report for a baby disappearing ?

How was Buddy legally re-integrated into society after spending 30 years at the North Pole? He should have had a birth certificate, but how did he get a Social Security Number after age 30 without any red flags going off?

The Polar Express

Did any of the parents in The Polar Express teach their kids stranger danger?

How about not getting in a vehicle with a stranger?

This is a disturbing part of an otherwise very sweet story of believing and helping others.

Scrooged

How did the network lawyers handle Elliott Loudermilk’s siege of the control room? Did Christmas cheer keep everyone from filing charges? How about Brice Cummings, who is tied up by Loudermilk and endures unwanted physical advances from the Censor?

Miracle on 34th Street

The single best Christmas courtroom drama is the 1947 Miracle on 34th Street. Moreover, the hero is a lawyer defending Santa Claus, at great personal risk to his own career. The attorney’s duty of loyalty to his client causes him to quit his law firm and consider opening his own practice in order to protect Kris Kringle from being put in an insane asylum.

The film also touches on the difficultly of being the District Attorney and Judge in a high profile case. The Judge quickly learns his own grandchildren and wife are ashamed of him for ordering a lunacy hearing to put Santa Claus in an insane asylum. The DA endures judgmental glares from his wife, including the wife permitting the DA’s son to testify on the child’s belief in Santa Claus, to the harm of his father’s case.

Nothing screams “You’re sleeping on the sofa” on Christmas Eve then committing Santa Claus to an insane asylum. Simply put, there is no judicial relief for any attorney (or judge) who ends up on his wife’s Naughty List for not spreading Christmas cheer.

Where Are You Christmas?

How the Grinch Stole Christmas raises many issues of burglary and identity theft. Additionally, why didn’t the Grinch wear pants?

More importantly, the movie also ends with a touching dedication to Ron Howard’s mother, “who loved Christmas most of all.”

There are mothers across the planet who put their hearts into creating a wonderful Christmas experience for their children. Ron Howard’s tribute spoke for many people and is a very fitting way to end a Christmas movie.

Santa Claus & The Torts of Christmas

Josh Gilliland

December 20, 2012

We all know the song….

He sees you when you’re sleeping,

He knows when you’re awake,

He know if you have been bad or good, so be good for goodness sake…

Could a Plaintiff sue Santa Claus for watching them sleep and all other aspects of their daily life?

What other liability is Father Christmas personally incurring as he decides who is naughty or nice?

For example, how does Santa know if you have been bad or good?

Are there elves remotely forensically imaging computer hard drives and using computer-assisted review to recognize patterns of nice and naughty conduct?

Does Santa have another team of elves running keyword searches over the billions of text messages sent each year? Could a Plaintiff sue Santa Claus for violations of the Stored Communication Act?

Let’s review the possible Torts and Crimes committed annually by Santa Claus.

Invasion of Privacy

Privacy is essentially the right to be left alone. While the word “privacy” does not appear in the US Constitution, there are many common law and statutory remedies for invading someone’s private life. California went so far as to even write a right of privacy into the California Constitution, which states:

All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.

Cal Const, Art. I § 1.

Santa is watching us all the time, even when we are asleep.

Courts have held to be spied upon while in bed is an invasion of privacy. See, Oziel v. Superior Court, 223 Cal. App. 3d 1284, 1301 (Cal. App. 2d Dist. 1990) & Commonwealth v. Kean, 382 Pa. Super. 587 (Pa. Super. Ct. 1989).

The tort of the intrusion into private affairs requires a Plaintiff prove the following in California against Santa Claus:

John Doe claims that Santa Claus violated his right to privacy. To establish this claim, John Doe must prove all of the following:

1. That John Doe had a reasonable expectation of privacy in sleeping at home in his bed;

2. That Santa Claus intentionally intruded in John Doe’s protected activity by watching John Doe 24 hours a day since Doe’s birth;

3. That Santa Claus’s intrusion would be highly offensive to a reasonable person;

4. That John Doe was harmed; and

5. That Santa Claus’s conduct was a substantial factor in causing John Doe’s harm.

In deciding whether John Doe had a reasonable expectation of privacy in sleeping at home in his bed, you should consider, among other factors, the following:

(a) The identity of Santa Claus;

(b) The extent to which other persons had access to John Doe’s bedroom while Doe slept and could see or hear John Doe; and

(c) The means by which the intrusion occurred.

In deciding whether an intrusion is highly offensive to a reasonable person, you should consider, among other factors, the following:

(a) The extent of the intrusion;

(b) Santa Claus’s motives and goals; and

(c) The setting in which the intrusion occurred.

1-18 California Forms of Jury Instruction 1800

The Trial of Santa Claus for violating John Doe’s privacy rights would raise many interesting questions that would focus on Santa Claus’s abilities to watch others. How does Santa see you when you are sleeping? Does Santa focus on specific individuals to check on behavior? Or, is it something Santa cannot himself focus, like hearing the roar of a crowd at a baseball stadium, instead of one conversation? Simply put, does Santa simply know when everyone is sleeping vs setting up a global camera network to spy on people?

What are John Doe’s damages to Santa knowing when Doe is sleeping? How is Doe harmed by Santa being aware of Doe’s sleep habits? Santa is not publishing Doe’s activities, but merely rewarding good conduct annually with a present under the Christmas Tree. With that said, there is still a creepy factor to knowing a man is watching Doe sleep.

Negligent Infliction of Emotional Distress

There is a good argument that Santa Claus watching John Doe can cause negligent infliction of emotional distress.

Generally, to prove this tort, a party must establish the following:

(1) Defendant’s negligence caused Plaintiff’s emotional distress,

(2) Resulting in physical harm manifested by objective symptomology, and

(3) A reasonable person would have suffered emotional distress under the circumstances.

Kunesch v. Noyes, 29 Mass. L. Rep. 625 (2012).

John Doe would first have to demonstrate negligence on the part of Santa Claus and that Doe suffered physical harm that a reasonable person would also suffer.

Doe cannot simply say he suffered from stress at a deposition. Doe ideally would have physical harm, such as loss of sleep, ulcers, and related harm that can either be confirmed by a medical professional or reported to others to verify the harm.

Trespass of the Bells

Santa Claus is trespassing in homes across the planet. Under California Penal Code section 602(m), a person commits a misdemeanor by “Entering and occupying real property or structures of any kind without the consent of the owner, the owner’s agent, or the person in lawful possession.”

A very good argument can be made that Santa is not trespassing, because he is invited into homes for gifts by the homeowners leaving cookies and milk out for him.

If Santa is invited into homes with the cookie invitation, he technically is an “invitee.” As an invitee, the homeowner would have a duty to Santa Claus to inspect the property for anything dangerous and warn Santa of any dangers (See, Black’s Law Dictionary iPad App). As such, if someone is leaving out cookies and milk, also starting a large fire or leaving toys out as a trip hazard would put Santa at risk of injury.

The Naughty or Nice List

The public has a right to be concerned with someone who can watch the world sleep.

However, if people also leave cookies and milk out to invite Santa Claus into their homes, any claims for invasion of privacy are lost by the implied social contract to be nice in exchanged for gifts.

1...969798...104 Page 97 of 104

Bow Ties, the TARDIS & Court Opinions

Andie Bolt & The Legal Geeks Talk Comedy, Cancer & Online Dating

The talented Andie Bolt, geek, comedian, and writer, joined Jessica and Josh to discuss attorneys, Slytherin House and her recent projects.

We also vent about online dating.

Flash Gordon & The Planet of Liability

Hansel and Gretel: A Lawyer’s Fairy Tale

Troubling Tribbles: The Ultimate Invasive Species

An Attorney’s Christmas Special: Legal Issues in Christmas Movies

Santa Claus & The Torts of Christmas