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HerpeSite: Herpes Online Support Network | HerpeSite.org: Your HSV1 & HSV2 Support Network! Dedicated to eliminating the stigma of Genital Herpes by providing resources, support, and information on Herpes transmission, treatment options, self-help, diet, nutrition, dating, relationships, research, and news. Established in 1994 by a former AOL Community Leader and Facilitator of the America Online Health Channel's Herpes Support Community, HerpeSite.org is a non-commercial website. Unlike many sites, HerpeSite is *not* a shill for a product or owned by a product manufacturer or seller. The information here is not influenced or tainted by financial interests or obligations. HerpeSite is mostly focused on Genital Herpes, but we also have a wealth of resources that apply to Oral Herpes and Cold Sores, too. You'll find information and resources here that will help you and others you may know who may be dealing with an emotionally and physically difficult diagnosis of Herpes. Knowledge can help you in support of yourself and others, and will empower you to make appropriate decisions about treatments, lifestyle, and management of HSV infection. What to Do First if You Think You Have Herpes First – Don't panic! No matter what, you will be fine! It is strongly recommended that anyone who may suspect a possible infection with Herpes immediately consult with a knowledgeable Health care professional. A qualified medical practitioner can help provide an accurate diagnosis, testing, and discuss suitable treatment options. In light of the fact that there is ongoing scientific research, evolving developments in medical theory and treatments, and much conflicting information about Herpes in the media and elsewhere, it is also advisable to continue personal research on any and all aspects of HSV that pertain to each individual's situation. And remember, Herpes is a skin rash caused by a virus, it doesn't define you and it won't kill you! Introduction to Herpes There are many HerpesViruses that affect humans. The primary ones we will focus on here are Herpes Simplex Types 1 & 2. Herpes Simplex Type 1 (HSV-1) HSV is an acronym for the Herpes Simplex Virus. HSV-1 is the virus responsible for cold sores and fever blisters. Research has shown that between 50 to 80% of Americans carry the antibodies to HSV-1. Between 10 to 20% of that population experiences recurring outbreaks. Even though a person may show no signs of outbreak, it is possible for a person to pass the HSV-1 virus. A staggering number of people, even those who have been infected for years, are unaware that these oral/facial outbreaks are a form of Herpes, and are therefore highly contagious. There is very little public awareness, education, or discussion of Herpes. We believe this is a major reason that it continues to spread. HSV-1 can also infect the genital area, many times passed via oral sex with someone who has a cold sore. It's been estimated that at least 30% to over 50% of all new cases of genital herpes results from HSV-1, but many Herpes researchers think that number is much higher. Herpes Simplex Type 2 (HSV-2) HSV-2 is generally thought of as "genital herpes," although HSV-2 can also infect other areas of the body. While these viruses are very similar to each other, HSV-2 tends to "prefer" the genital area, is usually more virulent than HSV-1 in the genital location, and tends to recur more often. People with genital HSV2 have an average of 5 outbreaks per year, while a genital infection with type 1 HSV has a recurrence rate of about once per year. An oral infection with type 2 HSV will rarely, if ever, recur. The difference between "genital" Herpes and "oral" Herpes is in location only, not viral type! Many people mistakenly refer to type 2 as "genital herpes," and type 1 as "oral herpes," when in fact, Herpes types 1 and 2 can and do infect either area. While many people have type 1 oral infections and type 1 or 2 genital infections as well, it is extremely rare for a person to have infections with type 1 and type 2 simultaneously in the same location. Some doctors now believe that more than half of new genital infections are caused by HSV-1. General Herpes Information & Background Remember, a Herpes infection is something people *get* – it's not who they *are*! It's a skin rash caused by a virus. Proper management of Herpes allows individuals and couples who have contracted this infection to live a full, rewarding, and yes, "normal" life. Management, like all other endeavors in life, may take work, time, and discipline. So stay with it! Herpes is not just a sexually transmitted disease. There are more than nine herpesviruses in humans. Herpes has been around for millions of years, and reportedly ran rampant during the height of the Roman Empire. Ancient Egyptian medical papyri contain remedies for herpes. The word "herpes" comes from a Greek word meaning "to creep." Herpes and Humans have been together since before recorded history! The highest incidence of transmission of Herpes simplex virus, usually HSV-1, occur oral/facially in children through non-sexual contact. Often, an adult with a "cold sore" will kiss a child on the mouth and transfer the virus. The vast majority of Americans have had HSV-1 "cold sores" at one point or another in their life. Many people who have oral herpes deny or do not recognize that the outbreaks on their lips and face are caused by a herpes virus. Many will proclaim that they have "cold sores," "fever blisters," or "sun blisters," and either don't know or won't admit that these outbreaks are caused by a herpes virus - even when presented with scientific documentation. This, we believe, contributes to the spread of herpes viruses, and perpetuates the social stigma associated with the word "herpes" and Genital Herpes in particular. More about this on the Overview page of HerpeSite. Cold Sores vs Herpes - Don't Buy into the Media-Driven Fear Campaign! The social stigma associated with Genital Herpes is not found with Oral Herpes. The fear and stigma around Genital Herpes is unfounded, unfair, and solely based on the LOCATION of the infection! Oral Herpes and Genital Herpes are simply a skin rash caused by a virus… Except in exceedingly rare cases – as in a newborn baby or someone with a compromised immune system – neither will kill you, neither will cause long-term medical or cosmetic issues, neither will occur more than a couple times a year at most, and neither will prevent you from doing, being, or having anything you want in life. We think that the antiquated puritanical MEDIA-DRIVEN LOCATIONAL prejudice about Genital Herpes needs to stop. The VAST MAJORITY of the World's population has Oral Herpes, yet no one is running around freaking out about it or making comments about the lifestyle or character of the people who have it or writing articles about how bad it is! Remember that Genital Herpes is a skin rash caused by a virus, just like "cold sores" or "fever blisters." Similar to "Chicken Pox" or "Shingles." Any idea about the "badness" of it stems from an outdated social convention based on puritanical notions of health, sexuality, and LOCATION! It won't kill you and will most likely have a minimal effect on your life… unless you let it. There's a lot more here at HerpeSite! Check out our pages on Symptoms, Treatments, Testing, Outbreak Prevention, Support, and Dating… The original resources for the Support Group that became Herpesite came from research studies & medical journals cataloged at University Medical Libraries. For a list of those studies, go to our new Research Page. 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EducationBrain | College news and information Try not to freeze in the event that you can't choose a noteworthy before you start your first year of school. It's not a major ordeal on the off chance that you appear to be not able to pick your school major before you start school. Keep in mind that a considerable measure of understudies change their majors a few times throughout their school training and much of the time it doesn't appear to influence their lives in any incredible way. They even appear to complete school around the same time as understudies who decided their real toward the starting and adhered to it all through. There are, then again, a few stages you can take to find the perfect profession way for you which will help you in picking your school major. Consider it for some time before you hurry into a choice. Your objective is not conclusively finishing a specific real; it is to limit your hobbies to a couple of zones that can be investigated all the more completely. o Examine and survey your ranges of hobby. What energizes you? What employments or professions may hold offer? Numerous school profession focuses have a scope of tests that can help you choose some of these things. o Examine your capacities. Figure out what your qualities are, your shortcomings, and your abilities. As a kind of guide, you can utilize your secondary school courses. Consider which subjects you were decent at, which extracurricular exercises you wanted to partake in, and which things you gained from low maintenance or summer work. o Examine your work values. Would you like to do something that helps society? Is it accurate to say that you are OK with working under weight? Make you favor a gathering focused showing? Is soundness a noteworthy issue? How essential is status? o Explore profession alternatives. Take a gander at general arrangements of occupations, discover particular occupations, and search for data and assets identified with them. You can take in a considerable measure about different occupations from the Bureau of Labor Statistics' Occupational Outlook Handbook. o Honestly assess your choices. Take a gander at what is reasonably workable for you. You may be truly inspired by being a specialist, yet unless you have the important science abilities, it is an activity in pointlessness. On the off chance that you are thinking about a profession way that is liable to require a propelled degree, verify you have no future responsibilities to prevent you from seeking after graduate study. It is critical to consider the substances and face the hindrances to choose on the off chance that you can accomplish what you expect to begin. o Narrow your decisions down to a couple and after that attention on picking your school major. When you have come to this last step, you most likely have a vastly improved thought of the majors you are unquestionably not inspired by and have made sense of a couple that are of enthusiasm to you. In your trip towards picking your school significant, utilize every one of the assets you can get to: o College course indexes have a scope of data from obliged courses to concentrated majors. o Professors and scholarly counselors have normally worked in the fields they show and can control you with vocations and opportunities. o Classmates and seniors at school who effectively seeking after their Major can be an incredible help. o College graduated class are individuals in the prime of their professions who can give you the information from the genuine occupation market. o Family and companions can likewise be of awesome help with respect to majors and profession ways. o The school profession focus additionally has an abundance of data and assets for picking your school real and also a vocation, a temporary position, work arrangement, etc.
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07/27/1978 When I was 18... 18 years old, I saw for the first time in my life... I saw an image of clarity. I saw a comic strip... a three panel comic strip that, though simple as it seemed, changed me... changed my being, changed who I am... Made me who I am... Enlightened me... The strip, Garfield, the comic strip was new... no more than maybe a month and a half since inception, since... since coming into existence... and there it was before me in print, I saw it... a comic strip... What was it called? Garfield. The story here is of a man, a plain man. He is Jon, but he is more than that... I will get to this later, but first let us say that he''s Jon, a plain man. And then there is a cat... Garfield. This is the nature of the world, here. When I see the world, the politics, the future, the... the satellites in space, and... the people who put them there... You can look at everything as a man and a cat... two beings, in harmony and at war... So, this strip I saw; this man, Jon, and the cat, Garfield, you see... Yes... hmm... It is about everything. This... little comic is, oh, lo and behold... not so little anymore. So yes, when I was 18, I saw this comic... and it hit me all at once, its power. I clipped it, and every day, I looked at it, and I said "Okay... let me look at this here. What is this doing to me? Why is this so powerful?" Jon Arbuckle, he sits here, legs crossed... comfortable in his home, and he reads his newspaper... The news of the world, perhaps... and then he extends his fingers lightly, delicately... he taps his fingers on an end table, and he feels for something... What is it? It is something he needs, but it is not there. And then he looks up, slightly cockeyed, and he thinks... His newspaper''s in his lap now, and he thinks this... Now where could my pipe be? This... I always come to this, because I was a young man... I''m older now, and I still don''t have the secrets, the answers, so this question still rings true, Jon looks up and he thinks... Now where could my pipe be? And then it happens... You see it, you see... it''s almost like divine intervention, suddenly it is there, and it overpowers you... A cat is smoking a pipe. It is the man''s pipe, it''s Jon''s pipe, but the cat... this cat, Garfield, is smoking the pipe... and from afar, and someplace near, but not clear... near but not clear... The man calls out... Jon calls out, he is shocked. "Garfield!" he shouts. Garfield. The cat''s name. But, let''s take a step back... let us examine this from all sides, all perspectives... and when I first came across this comic strip, I was at my father''s house... a newspaper had arrived, and I picked it up for him, and brought it inside. I organized its sections for him and then, yes, the comic strip section fell out from somewhere in the middle, and landed on the kitchen floor... I picked up the paper pages and saw, up somewhere near the top of this strip... just like Jon, I was wearing an aquamarine shirt. So I thought, "Ah, interesting. I''ll have to see this later." I snipped out the little comic, and held on to it... and five days later, I reexamined it... and it gripped me, I needed to find out more about this. The information I had was minimal, but enough... An orange cat named Garfield... Okay, that seemed to be the lynchpin of this whole operation, yes. Another clue... a signature in the bottom right corner, a man''s name... Jim Davis. Yes, I''m on to it for sure. So... one: Garfield, orange cat, and two: Jim Davis, the creator of this cat... And that curiously plain man. I did not know, at the time, that his name was Jon. This strip, you see, had no mention of this man''s name, and I''d never seen it before. But I had these clues; Jim Davis, Garfield. And then I saw more, I spotted the tiny copyright mark in the upper left corner. Copyright 1978 to... what is this? Copyright belongs to a... PAWS Incorporated... I use the local library and mail services to track down the information I was looking for... Jim Davis, a cartoonist, had created a comic strip about a cat, Garfield... and a man, Jon Arbuckle. Well, from that point on, I made sure I read the Garfield comic strips, though as I read each one, as each day passed... the strips seemed to resonate with me less and less... I sent letters to PAWS Incorporated, long letters, pages upon pages... asking if Mister Jim Davis could somehow publish just the one comic, over and over again... "It would be meditative," I wrote, "the strength of that." Could you imagine? But... no response... The strips lost their power, and eventually I stopped reading, but... I did not want my perceptions diluted, so I vowed to read the pipe strip over and over again... That is what I call it, "The Pipe Strip." The Pipe Strip. Everything about it is perfect. I can only describe it as a miracle creation, something came together... the elements aligned... It is like the comets, the cosmic orchestra that is up there over your head... The immense, enormous void is working all for one thing, to tell you one thing... Gas and rock, and purity, and nothing. I will say this... When I see the pipe strip... and I mean every single time I look at the lines, the colors, the shapes that make up the three panel comic... I see perfection. Do I find perfection in many things? Some things, I would say... Some things are perfect... and this is one of them. I can look at the little tuft of hair on Jon Arbuckle''s head... it is the perfect shade... The purple pipe in Garfield''s mouth... How could a mere mortal even MAKE this? I have a theory, about Jim Davis... After copious research and, yes, of course, now we have the internet, and this information is all readily available, but... Jim Davis, he used his life experiences to influence his comic... Like I mentioned before, none of them seem to have the weight of the pipe strip... But you have to wonder about the man who is able to even, just once, create the perfect form, a literally flawless execution of art, brilliance! Just as in a ward... I think there is a spiritual element at work... I''ve seen my share of bad times and... when you have something... Well, it''s just... emotions, and neurons in your brain, but... something tells you that it''s the truth... Truth''s radiant light. Garfield, the cat? Neurons in my brain, it''s... it''s harmony, you see? It... Jon and Garfield, it''s truly harmony, like a... continuous, looping, everlasting harmony... The lavender chair, the brown end table, the salmon-colored wall, the fore''s green carpeting, Garfield is hunched, perched... perhaps with the pipe stuck firmly between his jowls... His tail curls around. It''s more than shapes too, because... I... Okay, stay with me... I''ve done this experiment several times. You take the strip. You trace only the basic elements. You can do anything, you can simplify the shapes down to just... blobs, just outlines, but it still makes sense... You can replace the blobs with magazine cutouts of other things, replace Jon Arbuckle with a... car parked in a driveway sideways, cut that out of a magazine, stick it in... Replace him there in the second panel with a... a food processor... Okay, and then we put a picture of the planet in the third panel over Garfield... It still works. These are universal proportions. I don''t know... how best to explain why it works, I''ve studied the pipe strip, and analyzed Jon and Garfield''s proportions against several universal mathematical constants. E, Pi, the Golden Ratio, the Feigenbaum Constants, and so on... and it''s surprising... scary even, how things align. You can take just... tiny pieces of the pipe strip, for instance, take Jon''s elbow from the second panel... and take that, and project it back over Jon''s entire shape in the second panel, and you''ll see a near perfect Fibonacci sequence emerge... It''s eerie to me... and it makes you wonder if you''re in the presence of a deity, if there is some larger hand at work... There''s no doubt in my mind that Jim Davis is a smart man... Jim Davis is capable of anything to me... He is remarkable, but this is so far beyond that, I think we might see that... this work of art is revered and respected in years to come. Jim Davis is possibly a new master of the craft, a... a genius of the eye; they very well may say the same things about Jim Davis in five hundred years that we say about the great philosophical and artistic masters from centuries ago... Jim Davis is a modern day Socrates, or... Da Vinci... mixing both striking visual beauty with classical, daring, unheard-of intellect... Look, he combines these things to make profoundly simple expressions... This strip is his masterpiece... The Pipe Strip is his masterpiece... and it is a masterpiece and a marvel... I often look at Garfield''s... particular pose, in this strip. He is poised, and statuesque... and his cat stare is reminiscent of the fiery gazes often found in religious iconography... But still, his eyes are playful, lying somewhere between the solemn father''s expression in... Rembrandt''s "Return of the Prodigal Son," and the coy smirk of Da Vinci''s "Saint John The Baptist". His ears stick up, signifying a peaked readiness... It''s as if he could, at any moment, pounce; he is, after all, a close relative and descendant of the mighty jungle cats of Africa that could leap... after prey. You could see the power drawn into Garfield''s hind quarters, powerful haunches indeed. The third panel. And I''m just saying this now, this is just coming to me now... The third panel of the pipe strip is essentially a microcosm for the entire strip itself... All the power dynamics, the struggle for superiority, right? WHO has the pipe? WHERE is the pipe? All of that is drawn, built, layered into Garfield''s iconic pose here. You can see it in the curl of his tail... Garfield''s ear whiskers stick up, on end, the smoke billows, upward... drawing the eye upward... increasing the scope... I''m just... amazed... really, that after 33 years of reading, and analyzing the same comic strip, I''m able to find new dimensions. It''s a testament to the work... For six years, I delved into tobacco research, because... can a cat smoke? This is a metaphysical question... Yes, can any cat smoke? Do we know? Can just Garfield smoke? The research says no. Nicotine poisoning can kill animals, especially household pets. All it takes is the nicotine found in as little as a single cigarette. [ *Okamoto M, Kita T, Okuda H, Tanaka T, Nakashima T (Jul 1994). "Effects of aging on acute toxicity of nicotine in rats". Pharmacol Toxicol. 75 (1): 1-6. doi: 10.1111/j.1600-0773.1994.tb00316.x. PMID 7971729 ] Surely, Jon''s pipe hold a substantial amount of tobacco, and it is true that pets living in the homes of smokers are nearly 25% more likely to develop some form of cancer... most likely due to secondhand smoke... but these are facts of smoking, its tolls on our world. But after visiting two tobacco processing plants in Virginia... and the Phillip Morris cigarette manufacturing facility, I came no closer to cracking the meaning. I was looking for any insight. A detective of a homicide case has to look at every angle, so I''m always taking apart the pipe strip. I focused on every minutiae, every detail of this strip. Jon Arbuckle''s clothing... I have replicas. I''m an expert in textiles... so, you see, this smoking thing was a hang-up for me... but it was the statement here... until... This is key, this is the breakthrough. The pipe is not a pipe, really. Obviously there is symbolism at work here... I saw that from the beginning, and I looked at the literal aspects of the strip to gain insight into the metaphors at play... I worked at a newspaper printing press for eighteen months, in the late 1980''s... I was learning the literal to inform the gestural... the subliteral, the in-between... Jon reading this newspaper means so much more than just... Jon reading the newspaper... but how could you ever hope to decipher the puzzle without knowing everything there is to know about newspapers?! Okay... for example... Jon holds his newspaper up with his left hand, thumb gripping the interior. I learned that this particular grip here was the newspaper grip of nineteenth century aristocrats... and this aristocrat grip was a point of contention that influenced the decision to move forward with prohibition... in the United States, in the early twentieth century! So Jon''s hand position is much more than that, it... it is a comment on class war... and the resulting reactionary culture... but I didn''t know about the aristocratic newspaper grip until I came across some microfiche archives at the printing press. It''s about information. You have to take it apart. ...and the breakthrough on the smoking cat came late... just eight years ago, actually. "Smoking cat" is an industry term. It''s what the smoking industry calls a tattletale teenager who tells on his friends after they''ve all tried smoking for the first time... and it is actually a foreign translation, bastardization of the term "smoking rat"... But the phrase was confused when secret documents went back and forth between China and America... These documents are still secret, and the only reason I know about the term is because I know a man, my friend. Let''s call him "Timothy," yeah... yes, it''s a fake name, for his protection. Timothy worked for Phillip Morris for sixteen years, and he had seen the documents... and when he told me, it was an Aha moment... and he said, "But how? How could this cartoonist, Jim Davis, know about this... obscure term from the mid-70''s, used exclusively by a few cigarette companies!?" This is still a mystery to me... but I connect the dots by noting Jim Davis'' childhood experiences on a farm. He must have seen something... What could it be? Timothy went on to tell me there was one particular smoking cat, a boy, from... yes, Indiana, a boy named Ernie Barguckle, who became a thorn in the side of the tobacco companies for a couple of years... He did more than tattle to his parents; he and his family took legal action, and they eventually received a huge settlement payout... But that name is too similar... Ernie Barguckle... Jon Arbuckle. Jim Davis must have used this. There''s more here. Ernie Barguckle spent nearly half of that settlement money on experimental medical procedures to cure his... impotence. He was impotent. So... he was a smoking cat with a... a metaphorical pipe, that did not work... Are you starting to see the layers here? This is exciting stuff, you start to get a whole picture here, and it informs the work! It''s... it''s just remarkable. Jim Davis took these raw ideas, these... pieces, and he transformed them into smart social commentary that is... all so ravishingly beautiful. I have cried. I''ve cried, I''ve cried... I''ve cried, cried over this piece. It just... gets in my soul. I try to explain this to people, I have... the newspaper articles about Ernie Barguckle... People have fought me on this, they don''t see it, or they''re close-minded, "How could a comic strip about a cat smoking a pipe mean any more than that?" But it is more... and when I feel spiritual, or start to think existentially, I still see this comic. Here''s something from 1981 that I wrote in thinking about the implications of this strip; this is just an excerpt here... there''s more before and after, but this part is the essence to me... If a comic about a cat smoking a pipe can be the only thing in the universe... then maybe this is the strongest evidence for that. *fumbles with tattered sheet from 1981* "Many of you say, ''Oh, but I am not blind. I have never been blind,''... But when you truly see, you will understand just how truly blind you once were to even think it right to say you were not blind. What does a blind man see? Blackness. Darkness. Blankness. Blank darkness. Dark blankness. The absence of things, quite literally NO thing. No things. Nothings. So, you see nothing, and I bring you into the light. A cat has your pipe! You''ve been blind, do you understand this!? The cat has your pipe. You can''t fully immerse yourself, you don''t have the light. You don''t have the radiance, the radical light, the radically radiant light of truth and truth''s belonging love, and nature of light, and loving truthful radiance. So don''t be bold, and make bold statements. I know of you. The cat has your pipe. The. Cat. Has. Your. Pipe. Remember that." *puts paper back in pocket* That writing, well... It''s kind of rough... Kind of an... early eighties feel... and I see that, but I''m still... I''m still proud of it. Sometimes I imagine that it is the editorial column in the newspaper Jon Arbuckle is reading. It''s an exercise in recursion, it''s like a vortex opens up... It''s like you hold two mirrors up to each other, one is reality and the other is a cartoon strip. Let''s see here... Oh yes, I must bring this up, because I think, surely, Jim Davis is again speaking on multiple levels by including the details set before us in the comic. Notice the glimpse of Jon Arbuckle''s foot in the first panel. The size of the shoe would indicate that maybe the man just has small feet... but a deeper investigation takes us to the footbinding rituals of certain Asian cultures. Inflicted usually on women for the desire of men, this practice was incredibly painful and crippling... Aha! Mister Davis is, here, presenting us with a man, or rather... "man", who engages in footbinding, a body modification for women, on top of "being without his pipe"... or impotent. This is a man facing extreme inner turmoil, the panels tell that story... subconsciously. Notice the background wall shading of the first panel points inward toward Jon in the second panel... and the sharp tapered end of the purple pipe in the third frame also points at John in the second panel, inward; the eye is drawn to the center panel. You can connect these points and draw a triangle across the panels, and this triangle will align with the reoriented points of Jon''s collar! This, this is majestic artwork! ...and to uncover this hidden order is... bliss like I''ve never known. Comforting, in an empty world. I can''t help but read the thought bubble, over and over again. Now where could my pipe be? Now where could my pipe be? It is a profound question. Why am I here? What is my purpose? It is reflection and self-examination here. It is facing the dust, the misery of a cold, careless universe. You can feel the weight of it. But where could my pipe be? One imagines the author, Jim Davis, teetering on the edge of insanity... his rationality, his lucidity, hovering over the void... and he seeks the truth. You can see it in the line quality of the drawings; the thoughtful, controlled outlines mixed with the... occasional, chaotic scribbles at work in the shadows and Garfield''s dark stripes. It''s almost as if Garfield is chaos himself. Yes, he is the embodiment of chaos, disorder, hatred, fear... Thievery, death, destruction, desolation! These are the things Garfield represents; HE stole the pipe, HE sits with his back to Jon, Garfield... Garfield, this chaos cat, Garfield has turned his back on everything, everyone! One recalls the great existential forces in literature... Camus'' Meursalt, Kafka''s Gregor Samsa, or Sartre''s Antoine Roquentin... Garfield the Cat sees the hopelessness of life, which...ah, yes... This is why Jim Davis has chosen smoking. It represents a recklessness, a... a disregard for what some would define as the beauty of life. Garfield may die from the nicotine, he may not... He defies life; he sits defiant, saying nothing, but looking as if he could say... "Then let me die... it does not matter." It does not matter. ...and we are faced with this; Could Jon behave the same? Is Jon the glimmer of hope? He seems to be unsure. Again, his question... "Now where could my pipe be?" indicates that he is wrestling with his own existence. The center panel centers the issue, and again, this hearkens to many of the great religious works of art. I''m talking about the Pipe Strip in relation to religion. It''s... it''s interesting to assign the roles of God... and anti-God, or, as many know him to be, the devil... or on a much larger scale, simply the forces of... good and evil. Garfield, the thief-cat, evil and malicious... He is the devil, placed to the right... and note, the two forms of Jon; the Jon on the left, still innocent, still draped in the... delight, of the lack of knowledge. He is... the humans in the Garden of Eden. He feels for his pipe... but he has yet to eat from the tree... and Garfield, the sinister serpent... and notice, notice how Jim Davis has framed this... The center Jon is locked in a struggle, between his innocence, and his knowledge of the truth... knowledge of the existence of evil. It is stunning. The great struggle, the struggle that transcends time... and Jim Davis floats over all this, as creator... the God, of sorts, in his own right. ... and he presents this cautionary message to us all; it is as if he is speaking from high and... he is saying, unto our awaiting ears... Where will you be, when the cat reveals himself? [-Jim 7:27:78] I can tell you where you''ll be. You will have a choice; you can face endless suffering, and eternal misery... You can be forced and beaten down with barbarians, who claw at each other just for a view of salvation. They''ll tear your eyeballs out, and rip your gizzards from end to end. They worship this cat, this... this false idol! This evil, horrible cat, do not be seduced by the cat and the pipe! Garfield... thy name is a mark of the demons of hell. Something like this, and to those listening, it is a stark reminder to follow the path of the first panel Jon; be humble, be grateful, honor the law, and honor thyself. Be true, and be good, and no harm will come to you... Pray for salvation, and it will be granted unto you. Be like Jon Arbuckle, as he lowers his head. Be like Jon Arbuckle as he lowers his paper, as he turns his head. Bow with Jon Arbuckle, and praise unto the creator, Jim Davis... and banish demon Garfield from your life. So, what is all this? What am I saying? Aha... hmm... What does all this mean? Why is this one comic strip so important to me... and why do I feel the need to share this? Obligation. I have an obligation to you all. This is a redemption, this is a belief in redemption, a sacrifice of all the obvious trappings of this false modern life. Look at the simplicity in this strip, in the pipe strip. Look at the simple clothes Jon wears, look at his simple, basic furniture... No adornments on the wall, even the very pipe his cat Garfield stole; it is a plain, modest pipe... and I have adapted this way of life, it speaks to me. In our times... well... you don''t need me to point out the hyperbole of our times; you have children being born eight or nine at a time, you have more money being spent on a single Hollywood movie than some nations can spend... feeding their starving people. Torture, distrust... Look around you, it''s overwhelming. What can you contribute? ...and every day, I look in the mirror, and I hold this comic up to the mirror, and I look into the mirror, and at this little comic strip. Be humble. Be thankful. It is a reminder, be respectful. You are a statue. You are fragile... and when you break, when you shatter... Where will those pieces go? Ask... ask, ask, ask this question. Will you ask? Humankind is only as great as you, YOU, the individual, it begins and ends with you! You must treat this expedition, this search, this... life, with a reverence and intensity found only in the smallest sticks. The littlest leaf, the tiniest stone! The most miniscule grain of sand... on a beach of billions! This is the secret. Do you want the pipe? Do you want to know where the pipe has gone? You ask yourself, you ask... you ask... you ask... Now where could my pipe be? When I was a young man... remember, now, I first saw this comic when I was eighteen years old... Ages ago... but I was youthful, vibrant. For weeks, I didn''t hide that a comic strip was having such a profound effect on me. I was much like Jon Arbuckle. In this middle panel, he says, "Now where could my pipe be?"... you could look into his eyes, his half-lowered eyes, and think to yourself... "Now, surely, Jon... Surely, you cannot be this naive... This is nothing new for you..." And if you''ve read more of the Garfield comic strips by Jim Davis, you understand what I am saying now; Garfield the cat does things like this all the time. He will take things from Jon; food, items, anything... This is his very nature. So you see this, and you want to say, "Jon Arbuckle, come now. You are lying to yourself. You are lying to yourself, and to all of us, if you pretend to have not... any idea of where your pipe has gone. Perhaps you think you''ve left it somewhere else, but... hmph, you''re not so forgetful. You are lying to yourself, ah... yes... You are lying to yourself, Jon Arbuckle. You know that Garfield has the pipe... somewhere, deep down, you know this. You don''t even need to think the question." And that was me when I saw this strip. One week passed, and each morning I''d open my drawer and slam it shut again. I would go to look at the comic... but I''d pause, and think... "Oh no, I don''t need this comic, I don''t n... I don''t NEED to look at it..." But there I was, lying to myself. I DID need to see it, and so I did, it''s... cathartic. You give in, and that is the transition, from the second panel of life, to the third panel of life! It is a simple story structure, the passage from the second act to the third, the twilight of things. Jon gives into his suspicions; he knows the truth, he''s ALWAYS known the truth, he yells out, "GARFIELD! GARFIELD! GARFIELD!" It is like... pressure from a steam valve, being released; the buildup is unbearable, and then... PSSHHWW, it''s gone. So it is like this... when I speak about the truth... the truth, the light, the radiance, this... this is the kind of thing I''m talking about. This is the essence of this brilliant work of art, the practical mixing, meeting, agreeing with the spiritual, it is all HERE. ...but spirituality is not an easy thing to confront. You might find yourself able to wrap your mind around a simple math problem, or a basic newspaper article, or... but intellect... is much less subjective. What is spirituality... and how have I found spiritual peace and serenity in Garfield? A long time ago, after I encountered the Pipe Strip... I spent some time, as I mentioned before, soul-searching. When something impacts you, or alters your very perception so greatly, there is a long period of confusion, recovery time... It''s as if you don''t know who you are, and that can be a... a very scary prospect, especially if you thought you had a good grasp on that sort of thing. Imagine if Jim Davis did not know who he was. Would he be capable of shaping the cultural landscape as he''s done? No. No, of course he wouldn''t. ...and how about his characters? Jon... what if Jim Davis suddenly woke up, and didn''t know who Jon was? What if he couldn''t make the informed decisions to accurately depict Garfield''s personality, because of... he could no longer specify, or demarcate the boundaries of Garfield''s behavior? What kind of comic would THAT be? You see? So draw the parallel. I saw this comic and, yes, I was disoriented... and if I didn''t reconcile this issue with myself, what kind of person would I be? Undoubtedly dire circumstances, but remember; this was not a math problem, this was not an article, this was not something I could just... figure out... and as skeptical as I was, I realized that faith and spirituality were avenues that... required exploring. At first I tried... long nights, reading Garfield by candlelight, or... aromatic meditation settings, while thinking of Garfield, but... nothing snapped. Nothing clicked, I still felt lost... but I kept it up, I hired a shaman, and a young... personal Yogi Sikh Guru; Avram Dahb Singh Sahib. I pushed and pushed, determined to find myself. And then, a miracle happened. Upon retrieving my morning paper, to clip the Garfield comic... I noticed a young girl, selling lemonade two houses down. She sat, occupied at her stand. She had no customers in sight. So, I approached, and saw that she was coloring. I looked at her drawing... Three rectangular boxes. A man, in a blue shirt. An orange cat. I knew what this was. Even in her crude scribbles, I knew EXACTLY what this was. She was drawing a Garfield comic. I looked at her words, and I saw that, in her strip, Jon asked Garfield to retrieve a newspaper. Heh, funny... since I''d done just that with myself... Garfield is sarcastic, but agrees to. He returns and calls Jon... "Sahib". Jon exclaims that the paper''s all chewed up, but then Garfield says, and I quote, "Sahib asks fish, paper is wet. Sahib asks cat, paper is holey." I remember the words, and ran back to my house, and thought, "How odd that Sahib shows up in the strip, and my spiritual advisor''s name is Avram Dahb Singh Sahib!" Coincidence surely, but, nonetheless, I spent the next sixteen hours poring through my clipped Garfield comics, looking for the strip this young girl had been coloring... I couldn''t find it... and I eventually fell asleep, right on my kitchen table. Next morning, I retrieved my paper again, and I clipped the Garfield comic. The date was July 12th, 1983. There it was. The Sahib Strip, in all its glory. The girl had been drawing the next day''s strip! So, I ran right out of my house, I ran back to where she was... but she was gone, and in place of the lemonade stand was a "For Sale" sign. They''d moved out. I rushed back to my house to call Avram, but... I was informed that he''d moved away as well. I reeled, for several hours, and then it all connected for me. It was meant to be. It w... it was meant to be this way! Jim Davis... Jon, Garfield... It was always meant to be this way for me.... They move to the forefront, and everything else fades away, EVERYTHING else; the girl, the lemonade stand, Avram Dahb Singh Sahib, it all existed to show me the way, and when I''d found the way... Everything else melted away. It was a beautiful miracle... and if July 27th, 1978, the day I first saw the pipe strip... was the first day of my life, then that day, July 12th, 1983, was the second day of my life. I''ve never looked back. Garfield has transformed me... and I am a man, born anew, because of Garfield. When I was in my mid-thirties, I was interviewed for a documentary... It was a documentary on the subject of cat behavior. Now, I''ve had cats my whole life; I have three cats now, and at the time of this documentary interview, I had four cats. I sat down for the interview and was joined by a veterinarian who specialized in felines: Doctor Caroline Wellmitz was her name, I believe... and the doctor discussed colorblindness in animals, and how it affects their behavior. She specifically brought up the fact that cats are red-green colorblind; they can see colors, but they can''t tell the difference between red and green ...and look at the color choice in this strip here. Garfield sits on a green floor, behind a pinkish red wall. I heard this, and I immediately pulled a copy of the comic from my wallet to show to the doctor... I moved so fast, I''m sure I nearly scared her, I... pointed at the paper and said, "Like this! Like this! Look, at this here! This cat, Garfield, he''s colorblind, he must be! That must be the answer here... like this." As over-excited as I was, I managed to take in her response; she said "Yes, a cat in this room would have a hard time differentiating the wall from the floor. Add to that a cat''s known spatial confusion, and you have the makings of a Cat Rage room." Now, she informed me that this isn''t exactly common knowledge among cat owners... but a seasoned cat owner, or someone particularly perceptive will have picked up on it. So what''s incredible here is not only is Garfield''s behavior symbolic of the devil, and all the evil constructs in the world, but... but, but... but also, it is rooted in science and scientific fact. Look at that. You cannot spell fact without "cat". Hah, just a little joke there... just some wordplay, but getting back on track... ...and you can''t spell track without "cat." Okay... I digress. I gotcha, I gotcha, enough... kidding around. It is established here that Garfield is in a rage; an ultimate rage of fury and hatred, caused by colorblindness. We know the "what", we know the "why"... but let us examine the "how", the how of his rage is particularly interesting here. We''ve looked at his posture and called it "powerful", "in control", "statuesque", "etc., etc." Composed rage... It''s peculiar, and I''ve talked to a number of psychologists and psychiatrists, and even a couple of anger management therapists about this concept... Could we see the same kind of behavior in a human? Is Garfield representative of something more specific than just chaos and rage? Deciphering this is going to take some perseverance. for sure. The psychologists pointed to a phenomenon in humans, and, yes, I believe one of the anger management counselors brought it up as well. The idea that people, oftentimes, will bottle their rage... Garfield the cat, here... well, he could be bottling his anger, inside, shoving it deep into his cat gut, to ignore and deal with at a later time. Eh, well... No, that''s not exactly right. Garfield has already acted out, he''s already stolen the pipe... he''s SMOKING the pipe, he''s already dealt with his anger. He''s already lashed out, so, psychologically, what is going on here? What is this cat doing, and how does it impact his owner, Jon Arbuckle... psychologically? Well, Garfield is angry. He is acting on his anger... but is this passive anger, or aggressive anger? Passive. It is passive because if Garfield has a problem with Jon specifically... he''s choosing a passive way of dealing with that problem. He has not confronted Jon, and said, "Jon, I have a problem with the way you''ve decorated this room; as a cat, I am colorblind, and this room sends me into a rage... You''ve created a rage room for me here, and I don''t like it; I want you to change it." Instead of that confrontational approach, though, Garfield has chosen to steal Jon''s pipe... and that, in turn, angers Jon... but Jon decides to be aggressively angry, and yell at Garfield, so... now, instead of a calm conversation between two respectful parties, you have two... heated, angry individuals, each with a problem and no direct line to solving it. The layered emotions here tell a story with tight, focused brevity that would make Hemingway weep. This is an entire drama, in just three panels, people. ...but let''s not be remiss, and miss the humor of the situation, the... absurdity of it all... for certainly, there is a reason that the visual shorthand for drama includes both the crying mask AND a laughing mask. Comedy and tragedy complement each other, and meld together to create drama, tension, the height of humanity, the peak of art, that reflects back to us our own condition... ...and here... in its basest form, we can laugh at this comic... yes, COMIC, in which a cat smokes a pipe... Hah... when was the last time you''ve SEEN such a thing in your life? Never, I presume... I certainly never have... The Greek muse, Thalia''s presence is strong in this work of art, here. Comedy, it is COMEDY... and if you look at the structure again, you''ll see this perfect form of thirds works magically for the transmission of, yes, YES, a JOKE. The joke.... is as old as time... even cavemen told jokes, and the joke here is that Jon has lost his pipe... or he thinks he has... but lo and behold, it is the cat, Garfield, who has the pipe. Surprise, surprise, the cat is smoking! Again, the transition, from set-up to punchline takes place between the second and third panels... but make no mistake, the comic is more than just a comic... Yes, it IS funny, of course it is... it is operating at the height of sophisticated humor, on par with any of Shakespeare''s piercing wit. On the one hand, Garfield the comic, with Jon the man, humor as art... the other hand, Garfield comic, with Jon the man, stirring... no, RIVETING drama... as with everything, it is tension, and release. TENSION... and RELEASE... A cycle. I keep returning to this idea, because it is so omnipresent. Yes, you could... and yes, I have done this, on more than one occasion... you could print this comic strip on a giant piece of paper. The dimensions would be something like... thirty-four inches by eleven inches. Now, tape the ends together, with the comic facing inward. Stick your head in the middle of this Garfield comic loop and READ, start at the first panel; Jon is reading the newspaper... he feels for something on the end table. Second panel; he sets the newspaper down, something is not right... "Where could my pipe be?" he thinks. ...and then, the payoff; the third panel, Garfield has Jon''s pipe, and is smoking it. But, aha! The paper is in a loop, around your head... so that you can see that, once again, Jon is in his seat, reading the paper... and so on, and so on, you can literally read the comic strip for an eternity! I spent many a relaxing Sunday afternoon reading this strip, over and over... reminded of the Portuguese death carvings, which always begin and end with the same scrawled image. [fig. 6b - Portuguese Death Carving c. 1330] So, this idea of repetition, of the beginning being the end, and the end being the beginning... It''s not new, it is an ageless tradition among the best storytellers humanity has ever offered... and I''m not wrong to include cartoonist Jim Davis in that exalted set for this particular strip alone I''m not foolish enough to deny that great art is subjective... divisive, even, and that some people see this Garfield comic and shrug with no real reaction... but I will say that I believe everyone in the world should see it; at the very least, see it! You should all see it. Read it. Spend some time with it. Spend an hour reading it... what''s an hour? Yes, you could watch some television program, you could play some fast-paced video games or computer games, yes, you could do all those things... But it''s just an hour... and if you give this strip a chance, if you look into Jon Arbuckle''s eyes... if you look into Jon Arbuckle''s SOUL... You might find that you''ll really be looking into your own soul. It is self discovery, that is what I''m talking about here... YOU have the opportunity, the possibility... it could change you. Don''t be afraid. You know, just last week, I was eating lunch near the Municipal Court... like I do every Thursday, and... there was a plumbing banner... a plumbing van, parked out in front, uh... and a man, a plumber, would step out from the court, and retrieve something from this every so often. A few times, this happened... I thought nothing of it; just a plumber, doing some work at the Municipal Court... but then he came out, and looked through his van, and it was clear... He couldn''t find something. I noticed, and thought, "Well, that''s sort of similar to the Garfield comic, in a way. Someone looks for something, can''t find it,"... but, yes, that probably happens billions of times a day around the world... ...but then, this plumber... put his hands on his hips... then, he scratched his head, and he said aloud... "Now, where could my pipe wrench be?" Well, at this, I leaped off the bench, sandwich still in hand, and I rushed over, I shouted, "What was that you said!?" He looked at me and said, "What? I can''t find my pipe wrench, " and I said, "No! No, no, say it... like how you just said it..." He scratched his head, and repeated, "Now where could my pipe wrench be?" I slapped him on the back and said, "Garfield!" He looked so confused, so I said it again... then, I said "Your orange cat took it!" Heh... ah, then I laughed and laughed... and he smiled, and went back into the courtroom. I walked away, knowing that the plumber and I, two complete strangers, bonded over this Garfield comic... You see, life imitates art, becomes a common ground. I have a feeling that if I see this plumber again, we''ll be sharing stories like two old friends... because we''ve been united by art. We have a common love for Jim Davis and his characters, his writings... The humor, the drama, the... that rascal Garfield, the cat... Oh, and by the way, if you''re wondering what I was having for lunch that day, it was a ham sandwich with an apple and potato chips... in a bag, I had a soda as well. I think it''s important to view the Pipe Strip in philosophical terms... We''ve touched briefly on the notion of existentialism; that theme is very prevalent in this strip. Garfield is, in fact, a modern existential anti-hero... but if Garfield embodies the bewilderment in a meaningless life, what is Jon? What are the telltale signs that inform Jon''s philosophical standpoint? His approach, what style of thinking he represents? Jon is depicted as being grounded in the material world... a world of things; he is surrounded by objects, and he touches these objects, he interacts with them. The newspaper, the end table, the chair... his clothes, all these physical things make up Jon''s world. In some sense, even his cat Garfield is an object to him, a thing... The first ideology that comes to mind when thinking of objects in the tangible world... is pragmatism... Is Jon Arbuckle a pragmatist? His beliefs stem from a useful, coherent view of his environment... a sort of cause-and-effect understanding of his world helps him. A: Deduce that his pipe is missing... and B: Catches his cat, Garfield, using the pipe. This kind of empirical and logical thinking lends credence to the idea that Jon is, indeed, a pragmatist... Although, it is hard to entirely ignore the rest of the Garfield comic canon. While Garfield is consistently anarchic, and embraces the chaos and absurdity of life... Jon Arbuckle exhibits an erratic, unpredictable mix of philosophical behaviors. At times, he is borderline; delusional, an idealist, an almost slap-happy version of Don Quixote. Other moments, he is rigid, nearly to the point of being obsessive... somewhat like a structuralist, and certainly has streaks of sarcasm and negativity that might classify him as a skeptic. ...But isn''t there some universal truth in this approach? How can any one man, how can Jon Arbuckle be just one thing? How can any of us be just one thing? We''re... an amalgamation of ideas, of emotions... conducts and functions, thoughts and feelings... Jon Arbuckle may very well inhabit tenets of nearly every major philosophical tract known to man. We all might. Characters are reduced, to make them recognizable, definable; a story needs a good guy, a story needs a bad guy... but rarely is one person defined in such black and white terms. Even Garfield, with all his bad behavior, Machiavellian motivation and general ne''er-do-well attitude, can be kind and thoughtful. You just have to find that rare strip. Speaking philosophically about the entire Garfield franchise, it''s an incredibly accurate depiction of life. Its bold lines and bright colors are merely a facade, a... a red herring, a lie. This cartoon is not a cartoon at all, it is not a... caricature. It is not caricature despite adopting caricature as its visual style and tone. ...but I don''t really like to speak in broad sweeping generalizations about Garfield. The comic has been running for over thirty years, and to try and boil that all down is just, well... it''s impossible. I think the only way that any historian worth his salt will agree with me is to look at individual moments... isolated instances, single comic strips. Can I discuss this one strip in the context of the entire run of Garfield? Yes, I do that just as a film historian might analyze one movie in relation to the history of all movies, or a war enthusiast might look at a single battle''s impact on an entire war. The Pipe Strip is just an instance in the lives of Jon and Garfield. Perhaps Jon is not a pragmatist at all... let''s look at this again. Maybe Jon is exhibiting the traits of a rationalist thinker; his question, "Now where could my pipe be?" is a clue that his thought process stems from the early rationalist questions posed by René Descartes. The well-known quote, "I think, therefore I am," attributed to Descartes, is applicable. Another close look at the strip, and we see that Jim Davis chose to draw Jon thinking his question. "Now where could my pipe be?" Jon does not speak this question aloud, so Jim Davis is also exploring the mind/body duality... Jon''s question operates on the level of a literal question... but it also examines the nature of reality. Jim Davis'' epistemological approach tells us something about the human condition; Jon''s thoughts remain the focal point of this strip. The comic is, quite literally, centered around his thought. "Now where could my pipe be?" This is his reality, this is where cognition, and the power and function of the mind take over. As Plato believed, the body is just a shell for Jon Arbuckle; yes, he can use his physical body to read his paper or cross his legs, but these inputs of touch, sight, hearing, et cetera, these senses are the triggers of the mind, as we see here, the mind... is something greater. It is the originator of ideas, and ideas are forever. Immortal. Immortality through thought, a... a major theme in literature and philosophy... ...and isn''t that what Mister Jim Davis himself has achieved? Will he live forever? The universe will continue to spread, and spread outward, and... entropy will turn a chaotic infinity into a homogenous, controlled system. This will take billions of years, and in that time, humans will push technology to heights we can''t imagine. We''ll explore and inhabit space, and occupy more and more of the universe, just as time allowed our ancestors to... multiply in numbers, and populate more and more of the Earth. ...and as the specific people come and go, their physical bodies will be born, and grow, and die... but their thoughts will remain... and Jim Davis'' comics, his glorious Garfield comics... are recorded ideas of his, that will still be here. Even when the Earth is no longer inhabitable, and humanity has long since moved away to bigger planets, they''ll carry with them a record, a record we all keep; mark my words... and look at what we''ve started, what is... What is the internet? What is the online world, if not a record? Never-ending feed of ideas, immortal ideas... forever placed in the ether of dualism. What is an idea? Where does it live? How does it manifest itself? Can it live forever? Will it live forever, outside of these physical husks of ours, our bodies? ...and Jon Arbuckle, and Garfield, started merely as thoughts... but they''ve become so much more. That old cliché rings true, they''ve taken on a life of their own... and life may not be what we think. Life brings to mind a beating heart, breathing lungs, blinking eyes... ...but the real life is in our imaginations... and who better embodies the definition of imagination if not a simple man... a cartoonist, who puts his ideas to paper so that they may live on, so that our children, and our children''s children, and their children''s children''s children can access the wealth of ideas that have accumulated thus far... They will plug themselves into an information grid, and they will have access... They will read every Garfield comic, 80,000 years from now, a child will see a simple Jon Arbuckle, reading a newspaper. He will feel around for something, but that something is not there... He will lift his head and think... "Now where could my pipe be?" ...and Garfield will be smoking the pipe, and Jon will yell "GARFIELD!" ...and what then? 80,000 years from now? The child reading this comic will smile... and that smile will transcend space and time and the physical limitations of this existence, whatever they may be, however many dimensions exist... There will always be Garfield... and there will always be its creator... Jim Davis. "It is through art, and through art only, that we can realize our perfection." -Oscar Wilde
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courtweek.com - Archives: 2011November 1, 2011The Law of Post-Halloween Legal StandardsToday is All Saints Day or All Hallows, a holy day of obligation for some. To others, it''s just the day after Halloween -- a day they forget was once merely All Hallows Eve. Some spend All Hallows recovering from the revelry of the night before, and some are still on the streets in the wee hours of the holy day. Our Case of the Week examines once such alleged citizen on the streets and the unfortunate lesson she learned about differing standards of legal review in a California appellate decision handed down last week.Let''s Make a DealAngelique Bongiovanni found herself in the legal system in 2009, charged with possession of methamphetamine in two separate cases. In a deal that would come back to haunt her on the day after Halloween, she made a plea bargain in one of the cases. Under the plea agreement, Ms. Bongiovanni pleaded no contest, and was placed on probation for three years. As an added bonus, her 365-day jail sentence was suspended to run concurrently with the sentence from her other drug bust.It seemed like a good deal at the time, and it would have been...if only she hadn''t allegedly been out with the witches, warlocks, goblins, and alleged gang members on the streets of Los Angeles on All Hallows 2009.All Hallows HijinksOn Nov. 1, 2009, Wendy Diaz lived with her husband and three children in a Los Angeles neighborhood with a gang problem. Perhaps not unlike Chauncey and Wadsworth fighting over tee times, the proper procedure for shaking martinis, or the best way to train a polo pony, Ms. Diaz''s neighborhood faced fights from the gentlemen and ladies of the rival gangs, "Vincent Town," and "Columbus Street." Police arrested a Columbus Street gang member for breaking into the Diaz home.After taking her children trick-or-treating on Halloween evening, Ms. Diaz ventured outside at approximately 1:00 in the morning of All Hallows to look for a friend parking on the street. Instead, Ms. Diaz said she saw Ms. Bongiovanni accompanied by a companion in a pumpkin costume.According to Ms. Diaz, Ms. Bongiovanni proceeded to engage in an expletive-laden tirade of threats. To accommodate the gentle readers of Courtweek.com who would rather witness a debate between Chauncey and Wadworth on the best ways to make covert contributions to the Republican National Committee instead of enduring the vile threats of alleged gang members, we will attempt to sanitize the vulgarity of Ms. Bongiovanni''s alleged utterances.Ms. Diaz said Ms. Bongiovanni approached her and called her an [expletive deleted] snitcher, adding, "You been [expletive deleted] snitching.""You and your family are coming down," Ms. Bongiovanni stated allegedly, as she is said to have added for emphasis, "You [expletive deleted] rata," and "[expletive deleted] all biccicletas."To assist our readers in appreciating the full flavor of Ms. Bongiovanni''s supposed soliloquy, we should note that each deleted expletive is a version of the same slang word referring to an act of sexual intimacy. In addition, "rata" can refer to a Soviet fighter plane from the 1930s, plants from the Metrosideros genus in New Zealand, or rat in Spanish. We''ll let you decide which one Ms. Bongiovanni might have meant. Also, biccicletas is a derivation of the Spanish word for bicycles. Seems innocuous enough. However, in Ms. Bongiovanni''s case, People v. Bongiovanni, California''s Second District Court of Appeal noted biccicletas was also a term Columbus Street gang members used as a sign of disrespect (or "dissing" in gangspeak) when addressing the upstanding citizens of the Vincent Town gang.Ms. Diaz reported the incident to police the same day and gave law enforcement a description of the woman who threatened her. She then identified Ms. Bongiovanni from a photo line up. Police knew Ms. Bongiovanni to be a member of the Columbus Street gang for almost a decade and that she went by the gang name, "Diabla." It wasn''t difficult police work...Ms. Bongiovanni sported Columbus Street gang tattoos on her body. If that weren''t enough, police said she also admitted she was a member.Winning 10-2?However, nifty tattoos notwithstanding, Ms. Bongiovanni denied she was a member of the gang at trial. In addition, Ms. Bongiovanni noted she was approximately 50 pounds heavier than Ms. Diaz had described her. Then again, it was Halloween, and with her friend in that pumpkin costume, she probably got a lot of candy. Despite Ms. Diaz''s testimony and police testimony citing various Columbus Street gang activities including murder, assaults, car theft, and narcotics distribution, the jury deadlocked, and it''s vote was 10-2 in favor of acquitting Ms. Bongiovanni. The court declared a mistrial and thus granted prosecutors'' motion to dismiss the charges pursuant to California Penal Code section 1385.So, it was time for Ms. Bongiovanni to do the happy dance. Sure, she was on probation, but the charges were dropped. No probation violation there...or so she thought.At an ensuing probation violation hearing, Ms. Bongiovanni argued she had not violated her probation in the All Hallows morning incident. She claimed the whole thing was a case of mistaken identity, and she argued the jury''s 10-2 vote in her favor showed she hadn''t done anything wrong.Most members of the jury may have believed her, but the judge wasn''t buying it. More importantly, for purposes of sending Ms. Bongiovanni to the slammer for a probation violation, the opinions of those 10 jurors didn''t matter.You see, California probation violation determinations differ from a criminal trial in that the fact-finder in a probation violation hearing is the judge -- not a jury. In addition, where in a criminal trial, the legal standard is proof beyond a reasonable doubt, in a probation violation hearing, the standard is only a preponderance of the evidence. In other words, there can be a fair amount of doubt as to whether you did it, but if the judge weighs the evidence, and there''s more evidence indicating guilt rather than innocence, you lose.In Ms. Bongiovanni''s case, the judge noted the cops testified at trial that she was a member of the Columbus Street gang, a Columbus Street member was arrested in connection with the break-in at the Diaz home, and that Ms. Diaz identified Ms. Bongiovanni as the woman who threatened her. In the minds of 10 of 12 jurors, that wasn''t enough to prove anything beyond a reasonable doubt. However, under the preponderance of the evidence standard, that''s all the judge needed.In upholding the trial court''s decision that Ms Bongiovanni violated her probation, California''s Second District Court of Appeal wrote, "Appellant''s argument that a jury vote of of 10-2 for acquittal supports her credibility is not persuasive because the fact finder in the probation violation hearing was the trial judge, not the jury. Because probation revocation differs substantially from criminal prosecution and the facts supporting the revocation need only be proved by a preponderance of the evidence, we find substantial evidence to support the trial court''s finding that the appellant violated her probation."So, Ms. Bongiovanni had her probation revoked, and it was three years of incarceration for her. The moral of this week''s Case of the Week: if you''re on probation and walking around with a giant pumpkin on All Hallows, study legal standards of review before you go calling someone an [expletive deleted] Soviet fighter plane. __________________________October 22, 2011The Law of Flying DwarfsThose readers who enjoyed -- or perhaps didn''t enjoy -- this writer''s On Trial column in The National Law Journal may remember the saga of Dave the Dwarf. He fought to save the Constitution...while saving his livelihood in dwarf tossing. To commemorate the 10th anniversary of Dave the Dwarf''s epic legal battle--and because a Florida state representative is now trying to do in the legislature what Dave could not do in the courts--we now revisit the Law of Dwarf Tossing...and what it tells us about the 5th and 14th Amendments to the United States Constitution...as well as legislative and regulatory drafting in the state of Florida.Big Fun in a Little PackageDavid Flood is a gentleman of somewhat small stature: three foot two, to be exact. He''s also a Tampa, Fla., radio personality and quasi-celebrity. Known as Dave the Dwarf to his legions of little listeners and big fans on Tampa''s 93.3 FLZ radio, Mr. Flood also has had a side business, and that''s what made him a legal star. You see, for a fee, you could bring Dave the Dwarf to your birthday party, St. Patrick''s Day festival, bar mitzvah, or Millard Fillmore Inauguration Day celebration, and Dave would let you engage in the time-honored tradition of dwarf tossing.That''s right, you could put little Dave in a harness and toss him to your heart''s content. Dwarf tossing was a cultural phenomenon in the 1980s. It was the biggest thing since Members Only jackets. It seemed a good time was being had by all, as tiny torpedoes of humanity went airborne at parties.That was, until the Little People of America and their friends in the Florida Legislature intercepted the toss.Little LobbyistsNot everyone was amused by this zany brand of miniature fun. Among the concerned populace was a public interest organization known as Little People of America, Inc. The non-profit organization provides support and information to people of short stature, and states it is the only dwarfism support organization providing services to those afflicted with all of the over 200 types of dwarfism.Little People and others lobbied the Florida Legislature, and the result was the passage of Section 561.665, Florida Statutes, governing activities involving exploitation of people with Dwarfism in establishments selling alcohol.Not all little people supported the law, and one of them was Dave the Dwarf.Dave the Dwarf sued then-Florida Governor Job Bush in an attempt to overturn the law, arguing the law was an unconstitutional violation of his rights under the Due Process Clause of the 5th Amendment and the Equal Protection Clause of the 14th Amendment.Specifically, Dave the Dwarf argued in Flood v. Bush, No. 8:01cv02261 (M.D. Fla. filed Nov. 28, 2001), that his due process rights were violated because the law failed to properly define those covered by the law, making the law unconstitutionally vague. He argued also that the law violated his equal protection rights because the law treated him differently than others. For instance, you could be tossed, I could be tossed, and Oprah Winfrey could be tossed (with a great degree of difficulty), but Dave the Dwarf could not be tossed...or so he thought.Banned or Not?The governor''s lawyers swung into action in an attempt to toss Dave the Dwarf right out of court. They argued dwarfs needed protection. Dave counted that was hogwash. Also, in addition to maintaining Gov. Bush should be dismissed from the suit, the Florida Attorney General''s Office argued that there was no constitutional violation because the law didnt really ban dwarf tossing.Turns out they were right.The law itself banned only "undertaking or permitting any contest or promotion or other form of recreational activity involving exploitation endangering the health, safety, and welfare of any person with dwarfism" in establishments selling alcoholic beverages. Nowhere did the law ban dwarf tossing specifically.Dave the Dwarf argued dwarf tossing was good for his welfare because he made money doing it. Note the language is "health, safety, and welfare," as opposed to "health, safety, or welfare." Dave the Dwarf might have been better off leaving the law alone, continuing his aerial acrobatics, and arguing he was in compliance with the law because dwarf tossing promoted his welfare.As it was, the trial court tossed Dave out of the courthouse, holding the law did not ban dwarf tossing and that -- although the law mandated that the Division of Alcoholic Beverages and Tobacco of Floridas Department of Professional Regulation promulgate regulations on the issue -- they had failed to do it. While the regulators may have been out at the beach listening to Jimmy Buffet tunes and drinking margaritas, Dave the Dwarf could have been spending his days flying through the warm Florida breezes.So why is Florida State Rep. Ritch Workman trying to repeal the law while everyone from Jon Stewart to your short Uncle Freddy is weighing in on the issue?Well, it appears those regulators finally finished getting wasted away in Margaritaville, cruised on back home to Tallahassee, and did some regulating.The Oprah RuleThe Division promulgated Section 3.048 of Chapter 61A of its regulations, entitled, "Exploitation of Dwarfs." Unlike their friends in the Legislature, the regulators did more precise drafting and included dwarf tossing specifically. The regulation provided in subsection (2): "Any activity described as dwarf-tossing is specifically included within those acts of exploitation prohibited by this rule."Of course, there was also subsection (3), which could be called the Oprah Rule. It provided: "Nothing contained herein shall be construed to prohibit dwarfs from engaging in non-exploitative sporting or recreational events of the type engaged in by persons who are not dwarfs."So now we''ve come full circle: Oprah Winfrey can be tossed (if one has a large catapult), but Dave the Dwarf is, once again, left out of all the fun...unless Rep. Workman has his way. His bill, HB 4063, is pending in the Florida Legislature. In the meantime, you can catch Dave the Dwarf on his radio show, What Would The Dwarf Do?, where presumably, he is not being tossed...at least not yet.__________________________August 25, 2011The Law of Wiener WarsOnce the gentleman from New York''s Ninth Congressional District resigned his House seat for exposing his wiener, you may have thought you would be finished with bad wiener jokes for a while. You would be wrong.This week, mighty corporate litigants have been battling it out in the U.S. District Court for Northern District of Illinois in a wacky wiener war. The case of Sara Lee Corp. v. Kraft Foods Inc., features charges of hot dog blasphemy. Sara Lee, the makers of Ball Park Franks, and Kraft, the friendly folks bringing you the venerable Oscar Mayer wiener, both claim the other has disparaged its products in violation of federal and state law.Seriously though, we all read Upton Sinclair''s The Jungle in school. Thus, everyone thinks hot dogs are comprised of animal parts swept up off the factory floor anyway. How can one disparage a hot dog?Oh, I Wish I Were...Sara Lee fired the first shot in the Weiner War, suing Kraft in May 2009, claiming Kraft violated both the federal Trademark Act of 1946, 15 U.S.C. 1051 et seq., known commonly as the "Lanham Act," the Illinois Consumer Fraud and Deceptive Practices Act, and other Illinois state laws.In its federal complaint, Sara Lee alleged Kraft claimed falsely that Oscar Mayer wieners were the "100% pure beef hot dog" when it knew Oscar Meyer wieners contained other mouth-watering ingredients, such as sodium lactate, sodium diacetate, sodium phosphates, salt, corn syrup, and dextrose. Sara Lee claimed non-beef ingredients comprised approximately 20 percent of an Oscar Meyer wiener. Of course, Sara Lee conceded that most of this non-beef 20 percent was water.Sara Lee claimed Ball Park Franks were disadvantaged becausebeing the honest dudes they are Sara Lee would not compete with Oscars little lies by claiming falsely that Ball Park Franks were 100 percent pure beef.But, Oscar Meyers alleged crimes against humanity and hot dog harmony didn''t end there.In advertising paraphrasing Oscar Mayers famous jingles for its hot dogs and bologna, Kraft claimed, The best tasting beef hot dog has a name. Its O-S-C-A-R, and These days, its Ball Park and Hebrew National who are wishing they were an Oscar Mayer wiener. In addition, Kraft invited customers to Try the taste that knocked the others out of the park.Just as it claimed the 100 percent beef claim was false, Sara Lee claimed these comparisons against its hot dog were false as well.Sara Lees attorney, Richard Leighton of Washington, D.C.''s Keller and Heckman LLP, claimed the evil Oscar Mayer even cheated on taste tests, claiming testers were served boiled Ball Park franks on a paper plate with no bun, no ketchup, no mustard, nothing.It must have been a big taste test error because the bouquet of the sodium lactate and dextrose really pairs well with mustard.Not only were these claims placed in print and electronic media, Sara Lee claimed Kraft even put them on its Wienermobile, a vehicle described by Sara Lee as a hot dog-shaped vehicle that promotes Oscar Mayer and its products in interstate commerce.Have you ever seen the Wienermobile? This writer has. It looks like a rolling phallic sex toy designed to appeal to the prurient interest in violation of the U.S. Supreme Courts holding in Miller v. California.Sara Lee argued that, by making these allegedly false claims in interstate commerce, Kraft violated section 43(a)(1)(B) of the Lanham Act. Section 43(a)(1)(B) prohibits false or misleading advertising or marketing that damages another''s product. In addition, Sara Lee argued these false claims violated the applicable Illinois state laws.Not surprisingly, Oscar Mayer saw things differently.My [Fill in the Blank] Has a First NameMighty Oscar fought back, counterclaiming against Ball Park''s protective corporate mother, Sara Lee. Kraft argued the 100 percent beef was accurate because, although Oscar Mayer contained additives, beef was the only meat in Oscar Mayer. In addition, Kraft believed it needed to illustrate Oscar''s beefiness because of the public perception that hot dogs contain mystery meats.Damn you, Upton Sinclair!In addition, Kraft argued Sara Lee had its own hot dog advertising shenanigans.In a corporate legal battle example of Pee-wee Hermann''s famous retort, "I know you are, but what am I?," Kraft argued Sara Lee made its own false claims about how much beef there was in Oscar''s tubesteak. In addition, Kraft argued Sara Lee mislead consumers with taste tests by professional chefs proclaiming that Ball Park was America''s best franks.All jokes aside, the Wiener War in Sara Lee Corp. v. Kraft Foods Inc., may change the way companies market their products and establish limits for what merchants can say about their products and their competitors in advertising.Meanwhile, the court battle continues with weighty questions, such as "Do a bunch of San Francisco chefs know anything about Chicago hot dogs?" and, if you thought hot dog litigation was bad, just wait until companies start suing each other over other meats lots of people hate.When commenting on the litigation, Sara Lee''s Ball Park product director, Chuck Hemmingway said, "Simply put, we believe that these untrue statements are a bunch of bologna."First, they attack Oscar''s hot dogs, and now Oscar''s bologna? Mr. Hemmingway may want to watch out for the speeding Wienermobile. Oscar is not happy.____________________________August 12, 2011The Law of A&E''s Reality TV TroublesReality television tends to get lots of people into lots of trouble. From going to the slammer for failing to pay taxes on reality winnings to shooting sweet, innocent puppies with arrows, reality TV contestants have often been models of bad behavior. But what happens when it''s the reality show''s network getting in trouble? Our Case of the Week examines what happens when a reality show insinuates falsely that a woman tried to smuggle drugs into a jail via her vaginal cavity.Family DayMarlorita Battle was minding her own business visiting her husband, an inmate at the Riverbend Maximum Security Institution in Nashville, Tenn. Little did she know she was about to become a big, big star.On the day she chose to visit the prison, the A&E Television Network reality show, The Squad: Prison Police, was there, too. The Riverbend facility apparently had a drug problem, and there were allegations the contraband made its way into the prison compliments of visiting family members.It was time for some riveting reality TV drama.The episode of The Squad: Police Prison entitled, Conspiracy, began with Tennessee Corrections Special Agent John Fisher describing the Riverbend prison''s drug problem. He noted that an informant had indicated a woman was smuggling drugs into the prison on a regular basis."We''re expecting this lady today," Agent Fisher said, as A&E splashed Mr. Battle''s face on the screen.As Ms. Battle began what might have been a pleasant visit with her husband and small child, the A&E cameras moved in, and agent Fisher said, "We''ve identified the female subject and inmate," as a mugshot of Ms. Battles husband is shown to television viewers.Keystone Kops and the Nitty GrittyMs. Battle''s husband had the toddler on his lap, and the couple sat next to each other. Ms. Battle''s husband caressed her, and then Ms. Battle visited the restroom, causing Agent Fisher to use his supposedly excellent cop skills to determine a crime was in progress. Not unlike the Keystone Kops, Agent Fisher and his bumbling band of merrymen swung into action."Hold on now, she''s going to the bathroom," Agent Fisher says, adding, "Typically, these women hide stuff up their vaginal cavity [sic] and then go to the restroom to take it out. Now we are starting to get to the nitty gritty."The camera then shows the doors to the bathroom, triggering more amazingly astute analysis from Agent Fisherthis time its about the size of Ms. Battles bladder and her efficiency in the latrine."There she is, right there. See how fast she went in there. She didn''t have time to pee," Agent Fisher says.Apparently, Agent Fisher, unaware of a bygone era when gentlemen and ladies would not utter the verb, "pee," on national television, has a special mathematical formula for computing travel times for urine through the urethra and into the toilet, hand washing, mirror check, and egress from a restroom.Ms. Battle, allegedly carrying something in her hand, proceeded to kiss her husband, A&E provided a crashing cymbal sound to enhance the reality TV drama, and Agent Fisher exclaimed, "Some [expletive deleted] just happened. I think we got ''em. I think we got them."It was time for the brave men of law enforcement to swing into action with A&E there to capture all the zany fun.First, they conducted a strip-search, and then, they placed Ms. Battle''s husband in a so-called "dry cell." Its called a dry cell because there''s no running water, and thus, no way to get rid of contraband.They kept Ms. Battle''s husband in the dry cell for 24 hours. He neither urinated nor defecated any contraband.After releasing Ms. Battle''s husband from the dry cell, Agent Fisher called the incident a "false alarm," but he added more commentary during the closing credits of The Squad: Prison Police that would become significant in subsequent litigation. This is Courtweek, after allyou know someone''s gonna get sued."If you are dirty, if you are smuggling in contraband, drugs, cellphones, tobacco, then we''re going to catch you. We might not get you today, maybe next week, next month, next year, but eventually, we''re going to catch up with you, and we''re gonna get you. That''s what we do," Agent Fisher said.Reality TV in CourtMs. Battle sued A&E Television Networks, Inc., and Wild Eyes Productions, Inc., the producers of The Squad: Prison Police, in federal district court in Tennessee, alleging defamation and intentional infliction of emotional distress.A&E and Wild Eyes moved to dismiss the suit, arguing on the defamation claim that The Squad: Prison Police was not capable of defamatory meaning, noting that the program doesn''t claim Ms. Battle committed a crime, but instead "accurately reports the results of an investigation."The court didn''t buy it.Noting the camera angles, the ominous music, and the made-for-TV commentary of Agent Fisher, U.S. District Judge Kevin Sharp wrote:"Even though the Program indicates that a search of Plaintiff revealed no drugs, a jury could conclude from the overall way that the Program is presented that Plaintiff was a drug smuggler who just happened not to get caught on September 12, 2009. Such an impression is enforced by Agent Fisher''s parting comments to the effect that while we might not get you today, we will get you sooner or later if you are smuggling drugs into a Tennessee prison."In rejecting the attempt by A&E and Wild Eye''s to dismiss Battle v. A&E Television Networks, Inc., the court cited also the U.S. Supreme Court case of Milkovich v. Lorain Journal Co., and held that statements of opinion were not automatically protected from libel and slander claims on First Amendment grounds."After all, ''expressions of ''opinion'' may often imply an assertion of objective fact," the court said.The lesson we take from this week''s Case of the Week is that, before airing a show, A&E might want to make sure the subject is guilty of genital smuggling--or at least not put a cop on the air insinuating the innocent party just got lucky on that one occasion. After all, they could just put a bunch of people on a desert island, have a some obnoxious people become roommates, or have really untalented people sing.________________David Horrigan is an attorney, journalist, analyst at The 451 Group, editorial director at Courtweek.com, and former staff reporter and assistant editor at The National Law Journal. His articles have appeared also in The Washington Examiner, Law Technology News, The American Lawyer, The New York Law Journal, The San Francisco Examiner, Corporate Counsel, Texas Lawyer, Florida Lawyer, and Daily Business Review. E-Mail: firstname.lastname@example.orgAugust 5, 2011The Law of Pig FumesHave you ever had a neighbor who cooked food they may have found tasty and delicious, but that emanated aromas reminiscent of aged Roquefort cheese and dirty baby diapers left in a garbage can in the hot sun? It would be most annoying, but would it be unlawful? Would the pungent aromas be trespassing onto your property?Believe it or not, the issue has been litigated, and, in this week''s Case of the Week, we learn whether various airborne items--chemical particulate matter, sewage plant smells, and pig farm fumes--are trespassing when they waft onto your property. People may disagree, and that''s okay. As we''ll discover, the courts disagree as well.Organic AirOluf and Debra Johnson had decided to get back to nature. They converted their Minnesota conventional family farm into an organic farm, hoping to achieve an organic food certification that would allow them to charge more for their farm fresh products.Soon the Johnsons were ready to enjoy their new organic Eden. As they began their new all-natural existence, they stopped using pesticides, and Mr. Johnson posted signs around the property, letting everyone know that the Johnsons'' new tree-hugging Utopia was a chemical-free zone.There was just one problem. The neighbors hadn''t joined the eco-friendly bandwagon.The Johnsons may have embraced Mother Nature, but their next-door neighbor, the Paynesville Farmers Union Cooperative Oil Company, was still spraying away. Pesticides and herbicides drifted onto the Johnsons farm.Seeing the neighboring farm much like a chinchilla sanctuary might view a petrochemical plant as a neighbor, the Johnsons filed complaints in 1998, 2002, 2005, 2007, and 2008. The Minnesota Department of Agriculture cited Farmers Union four times for violating Minn.Stat. 18B.07, subd. 2(b) (2010), which made it illegal to apply a pesticide resulting in damage to adjacent property.Having had enough of chemicals wafting onto their pristine, virginal, chemical-free land, the Johnsons sued in Minnesota state court in January 2009, alleging, among other things, that Farmers Union committed trespass by allowing its chemical fumes to invade their property.A state trial court was unconvinced. It granted summary judgment to Farmers Union, on all claims, including the trespass claim, holding that trespass by particulate matter was not recognized in Minnesota.Leading the charge for Birkenstock-wearing lovers of fields and streams everywhere, the Johnsons appealed.The Law of Pig FumesIn rejecting the Johnsons'' claim, the trial court relied on the Minnesota Court of Appeals'' decision in Wendinger v. Forst Farms, Inc., 662 N.W.2d 546 (Minn. App. 2003), review denied (Minn. Aug. 5, 2003). The facts leading to the court battle in Wendinger are every homeowner''s worst nightmare.The Wendingers and the Forsts had been neighbors for years. They had also farmed their lands for years, and the Wendingers built a new home on their land in 1984.In 1994, the Forsts entered into an agreement with Wakefield Pork, Inc., to construct and maintain a pig farm to house Wakefields'' pigs. In a design sure to make anyone nauseous, liquid pig waste was stored in an outdoor concrete lagoon. The pig poo was then pumped and spread on the fields each fall.As the scents from farmyard feces filled the ambient air, the Wendingers began to complain. Then, they filed scores of complaints with state and local authorities. Finally, they sued.Among their allegations was a claim for trespass, arguing the pig fumes entering their property constituted trespass.A trial court dismissed the trespass claim, and the Wendingers appealed. The Minnesota Court of Appeals affirmed, holding that the Wendingers'' claim was one for nuisance--not trespass--because the odors of which the Wendingers complained interfered with the use and enjoyment of their land, not with their exclusive possession of it.The trial court in Johnson used the Wendinger decision for the proposition that particulate matter traveling from one property to another could not constitute trespass. However, the appellate court in Johnson held the trial court read too much into the pig fume decision.Pesticides are not Pig FumesAlthough the appellate court in Wendinger used the phrase, "particulate matter," the appellate court in Johnson held all particulate matter is not alike."Nothing in our Wendinger analysis indicates that we intended the term particulate matter to define a unique category of physical substances that can never constitute a trespass," the court said. Basically, the court held pesticides are not pig fumes."Unlike the plaintiffs in Wendinger, the Johnsons do not claim trespass based on transient odors. Instead, they primarily complain that the liquid chemicals that the cooperative sprayed into the air from neighboring fields drifted, landed, and remained on the Johnsons'' organic crops in detectable form, contaminating them." Judge Kevin Ross wrote for the court.Where the Wendinger court said there was no trespass because the pig fumes only affected enjoyment of the land, not possession of it, in ruling for the Johnsons, the appellate court in Johnson held that pesticides can affect both possession and enjoyment."The errant dispersion of pesticides, which contain chemicals designed to affect the land, can interfere with possession," the court said.So, the next time youre cooking your Aunt Betsys Garlic and Sauted Sardine Surprise, youre probably okay--even if it does ruin the ambiance of your neighbor''s garden. But, if you spray Raid, and it ends up in your neighbors Cheerios, he may just lawyer-up.______________________________July 28, 2011The Law of Protecting Celine DionHow important is protecting Celine Dion?After all, she sells millions of records, and many middle-aged women adore her. However, there are millions more who would rather spend a weekend in an Iranian torture chamber than listen to Ms. Dion sing the theme from Titanic for the 4,761st time.The woman may need some protection.Well, in a development that may damage U.S.-Canadian relations and come as a shock to fans of syrupy, schmaltzy pop music, a federal appellate court has held that serving as Celine Dion''s bodyguard does not constitute an original contribution of major significance in a field of endeavor sufficient to warrant the granting of a EB-1 visa.The BodyguardHad the court heard the case of Kevin Costner''s character protecting Whitney Houston in The Bodyguard, the whole thing might have gone differently. Mr. Costner''s character had made a major contribution in the field of celebrity personal protection by serving as a U.S. Secret Service agent. Such a high level of demonstrated skill and accomplishment might have brought him a visa.But what if, instead of being employed by the U.S. Department of the Treasury to be part of elite squad of livesavers, Mr. Costner had been employed to protect the top-selling female Canadian recording artist of all time by the pride of Charlemagne, Quebec herself?Would the United States grant a visa to the man who had protected Canada''s fourth most famous export--next to Keanu Reeves in Bill and Ted''s Excellent Adventure, maple syrup, and those deeply disturbing Sarah McLachlan commercials with the abused puppies and kittens?Nikolaos Skokos thought they should.Mr. Skokos, a security consultant for Celine Dion, applied to the United States Department of Homeland Security (DHS) for an EB-1 visa, and DHS rejected him. Apparently, DHS didnt think protecting the vocal cords that brought Beauty and the Beast to warm the hearts of little children was important enough.To see what an affront this might be to Ms. Dion''s throngs of adoring fans, it helps to know a little bit about the legal process behind granting visas to enter the United States.Legal TitanicIn addition to establishing a lottery for certain visas and dropping homosexuality as a basis for exclusion from the United States, the Immigration Act of 1990 created the EB-1 visa to attract immigrants with exceptional talents and skills.The EB-1 visa has three types, one for multinational executives and managers, one for professors and researchers, and one for applicants of extraordinary ability. Two of the ways an applicant can demonstrate this extraordinary ability are showing he had made original contributions of major significance to his field of endeavor under 8 C.F.R. 204.5(h)(3)(v) or showing she was paid a high salary compared to others in her field under 8 C.F.R. 204.5(h)(3)(ix).Not only did DHS feel that protecting Celine Dion did not meet this standard of excellence, the U.S. District Court for the District of Nevada agreed with DHS, holding for the government and rejecting an appeal filed by Mr. Skokos.In the legal equivalent of running the Titanic into an icebergwhile listening to Celine Dion sing about it as Leo and Kate flail in the frigid waters of the North Atlantic, Mr. Skokos appealed to the U.S. Court of Appeals for the Ninth Circuit in Skokos v. Department of Homeland Security, and fared no better.The appellate court held Mr. Skokos failed to establish that his work for Ms. Dion constituted an original contribution of major significance to the field of bodyguarding. In addition, the court held he failed to establish that he was paid more than most celebrity bodyguards.The court noted Mr. Skokos claimed he was far more than a bodyguard--he supervised guards, made security arrangements in the exotic destinations where Ms. Dion shot her mesmerizingly dramatic videos, and provided around-the-clock protection for Ms. Dion and her family. Nevertheless, the court was unmoved that protecting the valuable Canadian export was sufficiently significant to get a visa.The court noted the high standard for granting an EB-1 visa, citing the case of Kazarian v. USCIS, where a physicist who had published articles, written a textbook, and lectured extensively didnt even qualify for an EB-1 visa because his work--although satisfying the criterion for authorship of scholarly articles--did not establish that his work was of major significance in the field of physics.But, is writing scholarly articles and lecturing on physics at universities really as important as ensuring the gaffer and the best boy don''t snag Celine Dion''s Perrier from the buffet table?Of course, some people have managed to prove they are important and accomplished enough to get an EB-1 visa. Golfer Nick Price got one, but--unlike Mr. Skokos--he had won multiple championships, earned over a million dollars in prize money, and he had Jack Nicklaus, Lee Trevino, and Hale Irwin execute affidavits supporting his position.If only Mr. Skokos had managed to get a raise from Celine Dion and recommendations from Gladys Knight and the Pips.______________________________David Horrigan is an attorney, journalist, analyst at The 451 Group, editorial director at Courtweek.com, and former staff reporter and assistant editor at The National Law Journal. His articles have appeared also in The Washington Examiner, Law Technology News, The American Lawyer, The New York Law Journal, The San Francisco Examiner, Corporate Counsel, Texas Lawyer, Florida Lawyer, and Daily Business Review. E-Mail: email@example.comJuly 20, 2011American Idol''s American LitigantMany contestants on the hit television show, American Idol, may believe Simon Cowell is a somewhat nasty fellow. He berates participants, calls them names, and generally makes people wonder if his momma taught him any manners. Nevertheless, most of these verbal salvo victims don''t sue. But, one did, leaving us with the question: Does Simon Cowell''s boorish behavior on American Idol violate Title VII of the Civil Rights of 1964?Effeminate Idol?In what some take as evidence of the decline of Western civilization, American Idol, the American spin-off of the British program, Pop Idol, has become one of the most successful shows on television. Contestants participate in singing competitions to win recording contracts, and the winners, including singers Kelly Clarkson and Carrie Underwood, have gone on to fame and fortune.Some of the contestants weren''t as talented. One of those contestants was Ian Bernardo.Mr. Bernardo first appeared on American Idol in 2006 on the opening show of the season. These season-opening audition shows feature a few acts that will advance in the competition and a few acts that will come close. They also feature performers with no reasonable chance of advancement. These contestants--possessing little or no talent--apparently appear to provide comedic material by making fools of themselves. Apparently, Ian Bernardo was one of these comedic contestants for the 2006-2007 season.Not surprisingly, Mr. Bernardo was unsuccessful in his American Idol audition. However, Mr. Bernardo--who described himself as "having a non-conforming appearance based on gender stereotype," which a U.S. District Court interpreted to mean that "he appears to conform to a stereotype of an effeminate homosexual male"--did make subsequent appearances on the show for the 2006-2007 season finale and for Simon Cowell''s final appearance on the show in May 2010.The Courthouse AuditionClaiming he was an employee of American Idol Productions Inc. on each of his appearances, Mr. Bernardo claimed also that he was subject to discrimination and harassment due to his sex on each of his appearances. He claimed American Idol Productions employees told him to "gay it up" and that producers conditioned his appearance on Mr. Cowell''s farewell show on Mr. Bernardo''s willingness to be "outrageous, flamboyant, and really gay."Claiming he was also subject to epithets such as "fag" and "homo," Mr. Bernardo filed a complaint with the U.S. Equal Employment Opportunity Commission (EEOC). He obtained a right to sue letter from the EEOC and sued American Idol Productions for violations of Title VII of the federal Civil Rights Act of 1964 and New York State law.American Idol Productions moved to dismiss the case, making several arguments. In addition to claiming Mr. Bernardo suffered no adverse employment action, the producers argued Mr. Bernardo had failed to make a case for hostile work environment under Title VII. Although the court conceded that--if true--the conduct at the Simon Cowell farewell show would constitute a hostile work environment, the court rejected Mr. Bernardo''s legal argument.Noting Title VII is not a civility code and that discrimination on the basis of homosexuality is not prohibited under Title VII, the court held Mr. Bernardo had not established that gender stereotyping, which is prohibited by Title VII, had so permeated the workplace so as to create a hostile work environment.The court went on to dismiss all Mr. Bernardo''s claims, noting, "He, like everyone else with a modicum of talent (or less) who auditions for American Idol, chose to appear on a program that was famous for its judges'' insulting behavior. Benardo went on the air after being told what was expected of him, and he knew what to expect. Having volunteered to be insulted, he cannot now claim that he was sexually harassed."There was no word as of press time as to any possible Ian Bernardo appellate audition at the Second Circuit._____________________July 10, 2011Suing After Ferocious Puppy PanicPeople are injured in Americas stores, streets, and subways all the time, making personal injury law a big business. Its also one of the most contentious. Some cases may seem easy, but what if youre injured after being chased down a supermarket aisle by a charging dog owned by a store employee? Should the store be liable? Two Mississippi courts disagreed recently. Of course, it helps if you know something about the dog.Attack in the Artichoke AisleLenetra Outlaw decided to do some shopping at her local Penny Pinchers discount grocery store in West Point, Miss., one day in Aug. 2006. An otherwise pleasant shopping day took an unfortunate turn when Ms. Outlaw heard a sound that gripped her with fear and panic.She heard a dog bark.Ms. Outlaw then heard the terrifying sound of dog claws on Penny Pinchers'' floors as the possibly ferocious beast came charging down the aisle. Ms. Outlaw, who said she was extremely afraid of dogs, decided it was time for drastic evasive maneuvers.She ran down the aisle, made a turn, and sought refuge from her brutal foe. Not finding a safe place in the aisle, she ran into a freezer. Thinking that wasnt safe enough--after all, she probably saw the movie, Cujo--Ms. Outlaw leaped on top of the freezer. In her Quixotic quest to escape Armageddon, Ms. Outlaw exacerbated a previously existing hip injury, and decided to sue Penny Pinchers and Cindy Scott, the store manager who owned the attack dog.A Mississippi state court jury found for Ms. Outlaw and awarded her $130,000, finding Penny Pinchers 70 percent at fault and Ms. Scott 30 percent to blame.At this point, you may be wondering, What''s so interesting about this case?Remember at the beginning we told you it would help if you knew a little about the dog?Baby Weiner DogIt turns out this allegedly ferocious attack dog was nothing more than a four-month-old Dachshund puppy. That''s right. A little weiner dog weighing four pounds.It seems Ms. Scott brought the adorable puppy named Sophie to work every day. The pleasant little puppy had never attacked anyone before. Ms. Scott kept Sophie behind the counter--not to protect customers, but so that no one would step on the little thing. Rather than a 150-pound Rottweiler with a spiked collar, Ms. Outlaw jumped on top of a freezer in mortal fear of a tiny weiner dog puppy.Given this fact pattern, Penny Pincher and Ms. Scott decided an appeal was in order. The issue facing the Mississippi Court of Appeals in Penny Pinchers v. Outlaw: Did the presence of the four-month-old Dachshund puppy create an unreasonably dangerous condition at Penny Pinchers that day?The court noted that the Mississippi Supreme Court had held that dogs are not dangerous per se. The Magnolias State''s dog-loving supreme court held in Poy v. Grayson that to impose liability on a dog owner for personal injuries, a plaintiff must show the dog had a propensity for violence and that the owner knew it.The court in Penny Pinchers noted that the four-month-old, four-pound bundle of love, Sophie the Weiner Dog, had a clean record.Citing the Mississippi Supreme Courts 1969 decision in General Tire & Rubber Co. v. Darnell, the court went on to hold that a premises does not have to be completely safe from any hazardonly reasonable safeand that the plaintiffs own actions can be a factor."We acknowledge Outlaw''s extreme fear of dogs. However, we cannot say that it was reasonable for Penny Pinchers to anticipate that anyone, even someone with a great fear of dogs, would have such a reaction to Sophie''s presence in the store," Judge Thomas Griffis wrote for the court.Thus, we feel confident in saying, if you hurt yourself jumping on top of a freezer to escape a four-pound Dachshund puppy, don''t bother suing anyone because its probably your own fault.__________________________June 29, 2011A Defamer''s Guide to ''Dirtbag v. Dirtbag''What does it really take to slander or libel someone? The law of defamation can be complex, but a New York state court recently tried to sort out this weighty issue: What is a "dirtbag," and is the term defamatory?The issue arose after a man named William Schumacher penned comments that another man, John Acheson, was "the biggest dirtbag" he had ever met in his life. Acheson sued Schumacher before Westchester City Court in what, amusingly, could become a seminal case of black letter law. Apparently, no other U.S. court has ever issued a reported decision on the issue of whether it is defamatory to call someone a "dirtbag."Citing a New York precedent, the court in Acheson v. Schumacher said libel or defamation was "a writing or broadcast that tends to expose the plaintiff to public hatred, contempt, ridicule, or disgrace." The court went on to cite the five proving elements of the tort, including the truth or falsity of the statement and whether the complaining party actually sustained damages.Without offering any citation, the court defined "dirtbag" as "an informal term" meaning "a dirty, grimy, sleazy, or disreputable person." The court went on to explain various possible meanings for Mr. Schumacher''s allegedly defamatory statement. Did Schumacher mean that Acheson was the physically largest of the dirtbags he had known? Or perhaps just one of the most powerful? The court surmised also that Schumacher may have believed Acheson to be "just a tad worse" than the other dirtbags he had known.The point the court was making was that -- in any case -- these statements would all be opinions. Citing the case of Gilliam v. Richard M. Greenspan, P.C., the court held that statements of opinion are not defamatory. (In Gilliam, one lawyer penned a nastygram, saying unflattering things about another lawyer. The court held it was opinion and threw out the case.)But don''t take these court decisions as a license to spew any insult you please. In Lund v. Chicago and Northwest Transp. Co., a Minnesota appellate court held that certain epithets -- in that case, the unfriendly word "s---head" -- used alone might be only "unactionable rhetorical hyperbole," but combined with other defamatory words or statements, such words could "take on actionable characteristics."It also matters where and when insults are hurtled. In National Recruiters Inc. v. Cashman, the Minnesota Supreme Court found it slander when a plaintiff was called "a no-good loser; a no-good son of a bitch" in the context of an employment reference.Other courts are more hostile toward such lawsuits. When ESPN posted a photo of daredevil Evel Knievel and his wife with the caption, "Evel Knievel proves you''re never too old to be a pimp," the Knievels sued the network for defamation. They lost on the grounds that a reasonable person would not have taken the photo and caption to mean Evel was literally a pimp and Krystal his prostitute, despite their 29-year age difference and his rose-tinted glasses in the photo.And Florida courts have held that even such insults as "cockroach" and "mega-scumbag" do not constitute defamation, nor do references to a woman''s "poor feminine hygiene." Despite being "crude and indecent," such comments were considered permissible as "satirical hyperbole."The bottom line is that you can freely call someone a dirtbag or a mega-scumbag, but be careful the next time you write a letter of recommendation. If you can''t say something nice, at least don''t say anything that will get you sued.___________________________David Horrigan is an attorney, journalist, analyst at The 451 Group, editorial director at Courtweek.com, and former staff reporter and assistant editor at The National Law Journal. His articles have appeared also in The Washington Examiner, Law Technology News, The American Lawyer, The New York Law Journal, The San Francisco Examiner, Corporate Counsel, Texas Lawyer, Florida Lawyer, and Daily Business Review. E-Mail: firstname.lastname@example.orgRead more at the Washington Examiner: http://washingtonexaminer.com/opinion/op-eds/2011/06/defamers-guide-dirtbag-v-dirtbag#ixzz1Qfc82pzXJune 12, 2011The Law of Ben & Jerry''s and Natural BeansHave you ever wondered just what "all natural" means? There was once a professor who reminded his students that the bubonic plague was all natural. Various merchants--from sellers of cereal to purveyors of popcorn--claim their products are "all natural." Ben & Jerrys claimed its ice cream was all natural, but the Center for Science in the Public Interest didnt agree, so they got someone to sue Ben & Jerry''s.So, we can attempt to discover once and for all just what all natural means, the tale of Chubby Hubby, Chunky Monkey, and Cherry Garcia defending their honor gets to be this week''s Case of the Week.Activist ice creamIn the 1970s, childhood friends Ben Cohen and Jerry Greenfield took a correspondence course in ice cream making. Then they scraped up $12,000, opened an ice cream shop in an old Vermont gas station, and delivered dairy products in a station wagon. Ben & Jerry''s Homemade Inc. was born, and, as they say, the rest is history.Ben & Jerry''s expanded quickly. Not only was the company known for its tasty ice cream with imaginative names, Ben & Jerry''s became known as a leader in social and environmental activism. The growing company tried to promote world peace, and--from green dairy farms to recycled supplies--Ben & Jerry''s made environmental stewardship a focal point of its operations. In addition, Ben & Jerry''s donated 7.5 percent of the companys pre-tax profits to charity through the Ben & Jerry''s Foundation. In 2000, Ben and Jerry sold the company to Unilever.Although they are now very rich dudes, Messrs. Cohen and Greenfield and their ice cream operation still conjure up images of granola, Birkenstocks, peace signs, and...well...things that are all natural. Of course, the labels of Ben & Jerry''s ice cream read all natural, too. Some people didn''t think it was natural enough.Dutch chocolateAlthough Amsterdam may be more famous for Rembrandt, the Rijksmuseum, and reefers, some people believe the Netherlands is also famous for Dutch chocolate. But, does anyone really know what Dutch chocolate is? Hint: it''s a little more complicated than just being made near The Hague.Chocolate is produced when seeds from cocoa beans are fermented and dried and mixed with fat and powdered sugar. Cocoa powder can be made in two forms: unalkalized cocoa or Dutch-process alkalized cocoa. The unalkalized cocoa is made by merely pressing the beans. The process produces a light brown, very acidic powder.Dutch-process cocoa, on the other hand, is produced by cocoa nibs with a mild alkali solution to raise the pH and thus, lower the acidity. This process improves taste, color and solubility, but it also destroys many of the flavonols, which are believed to have health benefits. Ben & Jerry''s used the Dutch alkanization process.All Natural?The Center for Science in the Public Interest (CSPI) doesn''t think alkanized cocoa is all natural, so it contacted Unilever, demanding that the company remove the words all natural from both Ben & Jerry''s and Breyers ice cream, another brand the company owns. Ben & Jerrys agreed to remove the phrase, all natural, from any products containing alkanized cocoa. Breyers did not.CSPI organized a class action with the ice cream-enjoying Skye Astiana as lead plaintiff of a band of ice cream eaters who hate the allegedly unnatural Dutch chocolate, and sued Ben & Jerry''s in the U.S. District Court for the Northern District of California in Astiana v. Ben & Jerry''s Homemade Inc. They alleged violation of both federal and California law in the labeling of the ice cream as all natural even though its cocoa contained potassium carbonate from the alkanization process.Specifically, the CSPI plaintiffs argued Ben & Jerry''s committed fraud and engaged in false advertising in violation of California Business & Professions Code 17500. In addition, CPSI claimed Ben & Jerry''s violated regulations promulgated by the federal Food and Drug Administration (FDA).Ben & Jerry''s filed a motion to dismiss the case, making numerous arguments, including debating the definition of all natural.The ice cream makers argued that "all natural" was a term of art under FDA and U.S. Department of Agriculture (USDA) regulations. Thus, Ben & Jerry''s argued, for the CSPI plaintiffs to have been deceived by the all natural packaging, they would have had to have possessed an intimate familiarity with the FDA''s natural policy as well as the USDA''s regulations about what constitutes a synthetic process.Ben & Jerry''s was taking the position that Ms. Astiana was merely an ice cream lover and not a federal regulatory expert.In addition, Ben & Jerry''s argued a prospective class plaintiff would have had to taken that extensive regulatory knowledge, then actually have seen the all natural phrase on the package, and then made her own analysis that the ice cream was either not alkanized or that the alkali used in the Dutch cocoa process was not synthetic under the USDA regulations.After all that, under Ben & Jerry''s argument, the potential plaintiff would have had to have relied on that regulatory analysis in deciding to enjoy that pint of Chubby Hubby. Ben & Jerry''s argued that when the reasonable consumer bought her Chunky Monkey, she was not assuming all natural meant alkanized with sodium carbonate and not potassium carbonate.The court wasn''t buying it--at least not for now.The court denied Ben & Jerry''s motion to dismiss, holding that the dispute was too fact-dependent to be thrown out at this point."Moreover, the fundamental dispute--what is a natural product?--will likely present some factual disputes. The only FDA guidance appears to be a distinction between natural and synthetic in the policy, but that definition in the Federal Register is qualified as meaning something that would not normally be expected to be in food. Surely, that characterization raises multiple linguistic and philosophical questions, not to mention factual questions," U.S. District Judge Phyllis Hamilton wrote for the court.So, the battle between Ben & Jerry''s and the enemies of Dutch chocolate will continue. What have we learned this week? Well, according to the U.S. District Court for the Northern District of California, there really isn''t any definition of "all natural"...at least for the moment._______________________________June 5, 2011The Law of Bees and BudsWhat does it mean to operate a motor vehicle? It seems to be a simple question. Get a bunch of lawyers and judges involved, and it becomes anything but. Although alleged drunk driving cases are where this question is asked most often, this week''s "Case of the Week" asks it in a different setting.What about when that motor vehicle is attacked by a swarm of bees?Unhappy HiveOne May day in 2009, Michael Corpus called animal control for the city of McAllen, Tex. It seems he was having a bit of a problem with a beehive.City of McAllen Animal Control Officer Roberto Mata responded to the call, and upon arrival at the scene, Mr. Corpus asked Officer Mata to accompany him to the hive with the swarming army of displeased bees.Possibly remembering what happened to the fools who tried to go into a hotel room with Mike Tyson''s tiger, Officer Mata said something along the lines of: "I don''t think so; Homey don''t play that," and refused. Officer Mata insisted Mr. Corpus accompany him to the hive.So the two gentlemen entered Officer Mata''s animal control vehicle, equipped with animal protection equipment. Officer Mata donned protective gear and approached the hive of danger, but he instructed Mr. Corpus to remain safely in the animal control vessel as the engine remained running.Things would have been just fine and dandy had Officer Mata not done something that may have been somewhat unwise.Insects Attack!Not unlike a Saturday Morning Super Hero decked out in protective gear as he makes Saturday mornings safe for kiddie sales of sugary cereal and overpriced toys, Officer Mata approached the hive in his protective animal control gear. Then, the swashbuckling hero of animal protection began spraying the bees.Guess what happened next?Shockingly, the bees attacked. But, no worries. Officer Mata was protected by his animal control gear. The problem was what Officer Mata did next.To escape the mighty swarm, Officer Mata ran to the truck, opened the door, and hopped in.The only problem, of course, was that, when he opened the door to the animal control truck, he let in a bunch of very angry bees--who proceeded to have a field day biting the [expletive deleted] out of the unprotected corpus of Mr. Corpus.Mr. Corpus was not amused.What do unamused people do in this column? They sue.The Law of Bees and CarsMr. Corpus sued the city of McAllen, alleging Officer Mata''s negligent operation of his city-owned vehicle cased serious injuries to Mr. Corpus.Operating a motor vehicle? What about spraying the bee hive and opening the truck door so the bees could turn Mr. Corpus into a walking, talking pin cushion.Actually, Mr. Corpus had a smart lawyer.You see, government entities are usually only liable in civil suits if they waive what lawyers call sovereign immunity, the government''s immunity from legal actions. Governments waive sovereign immunity for certain activities. Basically, you can sue the government only if the government says you can sue the government.One of the exceptions to sovereign immunity in Texas is for operation of motor vehicles. If Mr. Corpus'' lawyer could show Officer Mata was operating the animal control truck, then he would have a case under the exception to sovereign immunity.So just what does it take to be operating a motor vehicle?If you asked a bunch of convicted drunk drivers, they would probably tell you Officer Mata was operating the animal control truck. That''s because courts have held that, to be guilty of drunk driving, all one must do is sit in the drivers seat with the key in the ignition.Bud or Bees?For instance, in People v. Wood, Andrew Wood had a very unfortunate night at McDonald''s. When he pulled up to the drive-up window in his van, he passed out--with his car running--and, giving new meaning to the phrase, "This Bud''s for you," he had a can of Budweiser between his legs. At least it wasn''t hot coffee. Oh yeah, he also had a cooler full of marijuana on the front seat.The legal story from the bad night at the Golden Arches wasn''t so bad for Mr. Wood at first. Both a trial court and an intermediate state appellate court threw out the evidence against him, holding he was not operating his van at the time of the arrest and search.However, the Michigan Supreme Court reversed both courts and held Mr. Wood was operating the motor vehicle even though his van wasn''t moving, and he had his foot on the brake. Noting that his van was running and in drive, the state''s high court held he was operating the vehicle because he had put the vehicle in motion, was still in control of it, and the vehicle still posed a danger to the public. In doing so, the court reversed two previous Michigan cases that held one could not be sleeping and operating a motor vehicle at the same time.Actual physical control of the vehicle is the standard used by many jurisdictions, and in Illinois, Michigan, Minnesota, and Nevada, that control can be maintained while sleeping.Putting the key in the ignition will get you in some states, including Vermont. In the Vermont Supreme Court case, State v. Helton, one hapless, inebriated fellow was convicted of DUI for merely putting his keys in the ignition to roll up his car windows--after he had gone to retrieve his vodka from the car.Note to self: appoint a designated sober window operator.So what about Officer Mata, was he in control of the vehicle and thus operating it for purposes of Mr. Corpus bee attack case?Departing from the case law of other states, both the trial court and the Texas Thirteenth Court of Appeals said "no.""The animal control truck was not in operation; it was parked. Corpus was injured when the bees entered the cab of the truck where he happened to be sitting. Although we do not condone Mata opening the truck door and exposing a passenger not wearing protective gear to agitated bees, we nonetheless cannot conclude that Corpus''s injuries resulted from the operation or the use of the truck," Judge Nelda Rodriguez wrote for the court.So for this week, we''ve established that you are operating a vehicle in Michigan if you''re asleep at the wheel in the McDonald''s drive-through with weed on the seat and Budweiser between your legs, but that you''re not operating a running vehicle in Texas with a swarm of bees on the seat and between your legs.Either way, its not a Happy Meal._____________________________David Horrigan is an attorney, journalist, analyst at The 451 Group, editorial director at Courtweek.com, and former staff reporter and assistant editor at The National Law Journal. His articles have appeared also in The Washington Examiner, Law Technology News, The American Lawyer, The New York Law Journal, The San Francisco Examiner, Corporate Counsel, Texas Lawyer, Florida Lawyer, and Daily Business Review. E-Mail: email@example.comRead more at the Washington Examiner: http://washingtonexaminer.com/blogs/opinion-zone/2011/06/law-bees-and-buds#ixzz1OXOJfS6kMay 29, 2011The Law of Rambo and Air FreshenersOur column two weeks ago about the Fourth Amendment has generated some discussion about just what will negate yourFourth Amendment protections and allow the cops to haul your posterior end to jail. As a public service to help our readers remain free from bondage, we will, from time to time, present our Case of the Week: Fourth Amendment Follies edition.This weeks helpful hint: Don''t use too much air freshener.Druggies from CharlotteRobert Little was traveling through the pleasant North Carolina hamlet of Thomasville early one August morning in 2008. It might not have been any big deal, but it was 4:03 in the morning, and Mr. Little was driving an old Buick with a malfunctioning headlight.Bonus reader helpful hint! If you''re carrying contraband, don''t drive through a small Southern town at 4:03 in the morning in an old Buick with a busted headlight. Bad things will happen. At least wait until 5:00 when the first batch of doughnuts comes off the conveyor belt at the local Krispy Kreme.Because Mr. Little didn''t get the memo on suspicious vehicles lurking through the Bible Belt during the wee hours of the morning, he got to meet Officer Adam Kallfelz of the Thomasville Police Dept.Officer Kallfelz observed three things that made him decide it was time for back-up.First was Mr. Little''s nervous and agitated demeanor. Second, Mr. Little said he was traveling from Charlotte. Finally, Mr. Little had approximately 10 tree air fresheners hanging from the rear-view mirror.Before we get to those pesky air fresheners, please allow us to defend the good people of Charlotte, North Carolina. You''re a fine city with an economy built on good barbecue and Bank of America overdraft fees, and--unlike Office Kallfetz--we don''t think you''re a bunch of druggies. We don''t think people should be stopped by the cops just because they''re coming from Charlotte.But, back to those tree air fresheners.Rambo RaidA nervous dude driving from Charlotte with 10 air fresheners made Officer Kallfelz realize he needed a crime deterrent.It was time for Rambo.At 4:07 AM, Officer Kallfelz called Officer Christopher Leonard, asking him to bring his partner, Rambo.Not unlike Sylvester Stallone searching swamps for sadistic Viet Kong alumni, Rambo, a drug dog, went over that old Buick like a frat boy going through sofa cushions looking for that lost last joint.Rambo signaled for the presence of narcotics in the Buick''s door, and Mr. Little was arrested for being a felon in possession of a firearm.Mr. Little moved to suppress the evidence, arguing the search was illegal, but a trial court denied the motion, holding that the stop and the search were lawful. Mr. Little appealed.Air Freshener JurisprudenceIn his appeal to the North Carolina Court of Appeals, the Tar Heel State''s intermediate appellate court, Mr. Little argued in State v. Little that the search was improper because the cornucopia of air fresheners did not provide reasonable suspicion for extending the stop until Rambo arrived.Unfortunately for Mr. Little, North Carolina has a proud tradition of air freshener jurisprudence. They even go after Santa Claus if there''s air freshener involved.In State v. Hernandez, the North Carolina Court of Appeals held a stop was proper when it was based, at least in part, on Christmas tree air fresheners.In Hernandez, Trooper Jonathan Whitley of the North Carolina Highway Patrol stopped a vehicle when driver Jose Hernandez removed his seatbelt while still operating his vehicle. Not unlike with Mr. Little''s arrest, air fresheners would help lead to Mr. Hernandez''s undoing."I noticed there were several of these Christmas trees, air fresheners in the vehicle. I noticed a strong odor coming from the vehicle," Trooper Whitley testified in defending his actions.Christmas tree air fresheners as a basis for detaining a motorists? Well, the court upheld the stop, and the court in Little followed the court in Hernandez."Facts giving rise to a reasonable suspicion include nervousness, sweating, failing to make eye contact, conflicting statements, and strong odor of air freshener," Judge Martha Geer wrote for the court in Little.And, if you think North Carolina is the only state fighting the war on air freshener, you would be wrong.In Commonwealth v. Watts, the Massachusetts Appeals Court held reasonable suspicion could be based, in part, on the presence of fabric softener drier sheets.The federal courts have joined this attack on pleasant aromas as well. In United States v. West, the Tenth Circuit proclaimed, "The Tenth Circuit has consistently held that the scent of air freshener is properly considered as a factor in the probable cause analysis, and in the Eleventh Circuit held in United States v. Wright that evidence of a drug conspiracy existed based partially on the fact that two persons entered the Winn-Dixie together to purchase carpet freshener and fabric softener; materials known to be used to mask the odor of cocaine.Many other federal circuits, including the Third, Fifth, Seventh, Eighth, and Ninth, have upheld convictions based, in part, on the presence of fabric softener, and in United States v. Edmonds, the Third Circuit upheld a trial court''s refusal to believe a drug mule was a mere unsuspecting courier. Why? She brought along a box of Bounce fabric softener sheets.So, the lesson from this week''s Case of the Week: with a Mountain Fresh scent filling the air, your dorm hall monitor in college didn''t believe you then, and the cops don''t believe you now. If you have contraband and notice Rambo sniffing your car, ditch the fabric softener...Bounce can get you busted.____________________________Read more at the Washington Examiner: http://washingtonexaminer.com/blogs/opinion-zone/2011/05/law-rambo-and-air-fresheners#ixzz1Nvzi9iNpMay 22, 2011The Law of Airport TipsHave you ever been sitting in a hotel room, staring at a room service bill, trying to determine whether the service charge added to your bill is the tip? And let''s not even get started with deciphering the cryptic hieroglyphics known as the cable bill.But what if your employer hoisted a sign informing customers there would be a two-dollar charge for your services? Would that payment be your tip? Would posting that sign get somebody sued? Of course, it would. This is the Case of the Week.Air a la carteOur story begins in Sept. 2005, when American Airlines began charging a $2.00 fee for passengers to check a bag at curbside.Before this policy began, curbside check-in was free, but customers tipped the skycaps--usually a dollar per bag--for curbside service. Until American went and messed up things, most skycaps earned most of their earnings from tips.As the airline industry faced significant financial problems, airlines began charging for many services that had been free. This a la carte fee system affected everything from headphones to handbags.Want to watch the in-flight movie? No problem. That''s free. Want to hear it? Two dollars for headphones, please. Want to eat? Pay up.Pay2Pee, the world''s first aircraft pay toilet, can''t be far away.At the moment, we can add curbside check-in to our non-complimentary airline a la carte menu.American--and its subcontractor actually employing the skycaps--made out like Tijuana bandits. The charge was designed to defray the cost of curbside service in a dark and dreary economy, but it actually became a profitable business venture for all...except the skycaps themselves.Many passengers thought American''s $2.00 fee was the tip. Others felt $2.00 per bag was enough to pay for curbside service. The end result was the same: the skycaps lost a significant amount of their income as tips plummeted.Suing SkycapsTwo skycaps at Boston Logan International Airport sued American and the contractor, seeking class certification and arguing that American''s curbside fee violated the Massachusetts statute governing tips, Mass. Gen. Laws, ch. 49, 152A (2008), constituted tortious interference with an advantageous relationship, unlawful conversion, and unjust enrichment under Massachusetts law, and that the skycaps were entitled to restitution under the legal theory of quantum meruit.The skycaps'' employer was dismissed due to an arbitration agreement, and American removed the case from a Massachusetts commonwealth court to federal court.The skycaps argued Massachusetts law prohibited American from charging the curbside baggage fee because the fee qualified as a service charge under the commonwealth law because it was a fee that a consumer would reasonably expect to be given to the skycap.American countered that the skycaps suit was preempted by the federal Airline Deregulation Act of 1978. When a federal law preempts a state law on an issue, the federal statute has sole jurisdiction, and the state statute is preempted and nullified for purposes of that dispute.The District Court held for American on several grounds, but held for the skycaps on the preemption argument. Thus, the claims under the Massachusetts tips law and for tortious interference were tried to a jury.Big TippersIt turned out the jury was a bunch of big tippers. The jury found for the skycaps in April 2008 and awarded damages in the amount of $2.00 to each skycap for every bag handled between Sept. 2005 and the verdict.Thus, the jury awarded the nine prevailing plaintiff skycaps approximately $333,000 in damages plus interest and attorney fees. One plaintiff skycap from the St. Louis airport did not get to share in the bounty because--as a citizen of Missouri--he was not covered by the Massachusetts tip law.But, our story is not over. Cheap tippers can rejoice. American appealed, and the First U.S. Circuit Court of Appeals handed down a decision bound to make Parisian tourists do a happy dance.The First Circuit reversed the district court and ruled for American in DiFiore v. American Airlines, Inc., holding that the Massachusetts tip statute was, in fact, preempted by the federal Airline Deregulation Act.Although the appellate court conceded there was conflicting case law, it relied on three U.S. Supreme Court cases, Morales v. Trans World Airlines, Inc., American Airlines, Inc. v. Wolens, and Rowe v. New Hampshire Motor Transport Assn, in holding that the federal law preempted the Massachusetts tip statute vis--vis the skycaps tips.The court held the commonwealth''s law was preempted when applied to Ameircan because it was related to a price, route, or service, noting that related to and service were statutorily broad terms.The First Circuit rejected the skycaps'' argument that the tip law''s connection to airline price, route, or service was so tenuous, remote, or peripheral as to not trigger preemption under Morales or Rowe."This, to borrow an apt airplane image, is walking into a rotating propeller: the advertising and service arrangements are just what Congress did not want states regulating, whether at high cost or at low. When the Supreme Court invoked the rubric ("tenuous, remote, or peripheral"), it used as examples limitations on gambling, prostitution, or smoking in public places--state regulation comparatively remote to the transportation function," the court said.So, next time you go to the airport, please remember that--because a federal court has ruled that curbside check-in is not like betting on ponies, retaining the services of a hooker, or smoking a joint at baggage claim--these guys aren''t protected by the Massachusetts tip statute.Even if you pay an airline curbside baggage fee, please, folks, tip your skycap.________________________May 14, 2011The Fourth Amendment and the Law of Bongs and BaggiesThe Fourth Amendment provides some of our greatest protections from government. It keeps colonial constables out of our tea, J. Edgar Hoover and the FBI out of our mothers underwear drawers, and seizure-hungry sheriffs out of our Chevys.Yet, as with anything, the Fourth Amendment is not absolute. The Fourth Amendment prohibits only unreasonable searches. Thus, if police have probable cause for a search, its not unreasonable, and the Fourth Amendment won''t stop it. In fact, the Fourth Amendment has a specific clause allowing searches with probable cause.A recent Massachusetts case gets to be our Case of the Week because it addresses the novel legal question: Does the presence of a bong and Baggies constitute probable cause for a search for marijuana?Speeding and SeizingWhen Shawn Smith decided to do some urban drag racing with friends, he probably should have left his bong at home. For readers who may be unfamiliar with the household appliance known as the bong, it is a water pipe--used by some to smoke marijuana.The speeding Mr. Smith was attempting to outduel a fellow motorist when police clocked him traveling 67 miles per hour in a 40 mile per hour zone.When police stopped the Smithmoblie, they noticed a bong and an open box of plastic sandwich bags in the car. The police testified that, based on their experience, a bong and Baggies usually meant one thing...and it usually happens a lot in Cheech and Chong movies. Yes, police thought they were dealing with that plague on humanity: marijuana.Having spotting the offending bong and Baggies, law enforcement swung into action.Police ordered Mr. Smith from the car, and frisked him. They asked him if there were any marijuana in the car, and he said there was not. However, Mr. Smith admitted he had some herbal enjoyment in his pocket. Police seized it, arrested Mr. Smith, and impounded his speedy car. Shockingly, they found more marijuana.However, in a development that will be significant legally later in our story, police did not detect any marijuana smoke or residue in the bong.Evidence Up in Smoke?Sure, police get to do an inventory when they seize a car. In this week''s case, police were arresting Mr. Smith for his weed, so they got to go through his car and inventory everything. However, when police misbehave, there is a judicial remedy known as suppression of the evidence. For those who never have time to watch Law and Order, that means the evidence is thrown out because the cops got it illegally.In this case, because the police failed to give Mr. Smith his Miranda warnings before giving him the Spanish Inquisition, Mr. Smith moved to suppress evidence of the search.However, Massachusetts prosecutors argued the bong and Baggies sitting in the car in plain sight gave the police all the probable cause they needed to search the carMiranda or not. In essence, the Commonwealth argued, it was the probable cause supplied by the bong and Baggiesnot the Mirandaless utterances of Mr. Smith that gave police the pot.Both a trial court and the Massachusetts Appeals Court, the commonwealths intermediate appellate court, rejected prosecutors'' arguments and threw out the evidence--and thus, the case. Citing Massachusetts case law, the court held that bongs and Baggies--and nothing more--do not give the police probably case for a search.Bong and Baggies LawThe Appeals Court distinguished Mr. Smith''s case from two previous Massachusetts Appeals Court decisions where bongs did lead to probable cause for a search: Commonwealth v. Dolby from 2000, and Commonwealth v. Correia in 2006.It is true the facts in all three cases were somewhat similar: cops stop car, cops see bong, cops arrest driver. However, Smith differed from Dolby and Correia in one, key respect. Unlike in Dolby and Correia, in Smith, there was neither marijuana smoke nor residue present in the bong.The Appeals Court said that distinction was critical. In Dolby and Correia, the evidence was not suppressed, but it was because there was residue in the bong--not because police spotted an innocent bong just hanging out, minding its own business, with no nefarious residue or smoke.Baggies get the same constitutional protections.Citing its decision in Commonwealth v. Garcia, the court held, the observation of two lawful items--the bong and the box of sandwich bags--did not supply probably cause. The court articulated its rationale in Garcia:"The trooper''s experience, coupled with his observation of an apparently empty baggie, is not enough to provide probable cause to conduct a warrantless search of the automobile. Benign objects such as spoons, mirrors, and straws are often used in the narcotic trade. To allow police officers, experienced in narcotics investigations, to conduct a warrantless search whenever they observe one of the above items, and nothing more, would permit random searches, which are condemned by the Fourth Amendment and the Declaration of Rights," the court said.So, Mr. Smith got off: the evidence was suppressed, and the charges were dropped. The moral of this week''s Case of the Week: if you''re going to go drag racing with your bong in the back seat, at least make sure it is clean._________________________Read more at the Washington Examiner: http://washingtonexaminer.com/blogs/opinion-zone/2011/05/law-bongs-and-baggies-fourth-amendment-searches-probable-cause-miranda-marijuana#ixzz1MKivXiVWMay 8, 2011The Law of Cow Bones and BungeesWhen you buy a product or service, how much information should the seller disclose to you? This week''s Case of the Week examines that issue in a case involving breast implants, bungee cords, a surgeon''s eyesight, and the jurisprudence of cow bone implants...not necessarily in that order.Manmade ChassisDenise Dalien decided she wanted to augment the chassis God gave her, so she consulted plastic surgeon Stanley Jackson of Puyallup, Wash. Dr. Jackson performed breast augmentation on Ms. Dalien in 2000, using saline implants.After a diet and exercise regimen caused her to lose weight, Ms. Dalien noticed some indentation and rippling on what was once her soft and supple upper left bosom.No problem. Dr. Jackson went in again, removed the saline implants, and replaced them with gel implants.Turns out there was a problem. Ms. Dalien was not happy with her new gel bosoms, so under the surgical theory of more is more, Dr. Jackson performed additional revision procedures on Ms. Dalien during 2005 and 2006.Blinding BungeeJust before all this happened, and--importantly for our story--unbeknownst to Ms. Dalien, Dr. Jackson was having issues with a bungee cord. Dr. Jackson went into mortal combat with the killer cord in July 1999.The bungee cord won.Dr. Jackson received surgery on his eye, and took over a month off from his practice. In July 2006, Dr. Jackson reported additional changes in his vision. He retired in October 2006 after unsuccessful surgery.Citing her allegedly unsuccessful surgeries, Ms. Dalien sued the good doctor twice. In one suit, Ms. Dalien argued negligent medical malpractice in the botched boob job.In her second civil action, Ms. Dalien sued under Washington States Consumer Protection Act (CPA). Ms. Dalien argued, among other things, that Dr. Jackson violated the law by failing to disclose his eye injury.Cow Bone LawDr. Jackson argued that the nondisclosure of his eye condition did not occur in trade or commerce and that any alleged professional malpractice or negligence was exempt from the CPA.Ms. Dalien countered that the nondisclosure of the eye condition was, in fact, done in trade or commerce because Dr. Jackson solicited and retained patients by failing to disclose this condition.In siding with Dr. Jackson, Washington State''s Court of Appeals cited the Evergreen State''s jurisprudence on cow bone disclosure and the case of Michel v. Mosquera-Lacy.In Michel, Mystie Michel sought treatment from Lucy Mosquera-Lacy, a periodontist employed by Bright Now! Dental, Inc., and the doctor said Ms. Michel needed a bone graft.When completing her pre-procedure paperwork, Ms. Michel was given the choice of human bone, cow bone, or synthetic bone for her graft. Stating she could not fathom the thought of having animal parts in her body, Ms. Michel declined the opportunity to get authentic cow bone.Well, unfortunately for Ms. Michel, supplies were running low in the dental office that day.When Dr. Mosquera-Lacy ran out of human bone, she finished the job with cow bone.Although the dentist claimed she merely finished up with cow bone--and that cow constituted no more than 10 percent of the graft--Ms. Michel said she now had a McImplant with the doctor having implanted a cow bone in her mouth.Whatever damages or urges to graze on her front lawn Ms. Michel may have experienced, her case wasn''t actionable under the Consumer Protection Act, the Washington Supreme Court held, because the use of cow bone was not an entrepreneurial activity in trade or commerce."Michael failed to show that Dr. Mosquera-Lacy''s use of cow bone is entrepreneurial. It does not relate to billing or obtaining and retaining patients. It simply relates to Dr. Mosquera-Lacy''s judgment and treatment of a patient. There is no evidence that cow bone was used to increase profits or the number of patients. When the supply of human bone ran out during the procedure, Dr. Mosquera-Lacy used her judgment and skills as a periodontist to finish the procedure. This is not actionable under the CPA," the court said.Bovine Bones and BungeesFollowing the Washington Supreme Court''s holding in Michel, the Washington Court of Appeals held in Dalien v. Jackson that Dr. Jackson''s nondisclosure of his eye condition was also an activity that fell outside the scope of Washington''s Consumer Protection Act. Thus, the court declined to certify her class action, and it affirmed a trial court''s dismissal of her case."As in Michel, Dalien has failed to show that Dr. Jackson''s nondisclosure of his eye injury is entrepreneurial. Dr. Jackson''s nondisclosure does not relate to Dr. Jackson''s billing or obtaining and retaining patients. Dalien has presented no evidence that Dr. Jackson represented that he had better vision than his competitors or somehow relied on his vision to promote his business," Judge Russell Hartman wrote for the court.However, the court didn''t say Ms. Dalien didn''t have a case--just that she didnt have a case under the CPA. Referencing her other suit, the court said, "To the extent that Dr. Jackson''s eye injury may have affected his ability to examine, diagnose, treat, or care for his patients, that question is actionable under the negligence theory, which Dalien is pursuing in her original lawsuit."The lesson of this week''s Case of the Week? If you want to sue under Washington''s Consumer Protection Act, make sure they advertise their excellent vision allows them to see your head before they implant a cow bone in it.____________________________Read more at the Washington Examiner: http://washingtonexaminer.com/blogs/opinion-zone/2011/05/law-cow-bones-and-bungees#ixzz1Ll8lzZ00May 1, 2011The Law of Bait Car JournalismDavid Broder, Edward R. Murrow, William F. Buckley Jr., Walter Cronkite, and now Bait Car?As the old Sesame Street song said, it would appear that one of these things just doesn''t belong here. Well, that''s not what the producers of the television show, Bait Car, say. They argue their show is real journalism, and--in an attempt to avoid producing evidence in a California court proceeding--they say their photographers are journalists. In recognition of this creative legal argument, their case gets to be our Case of the Week.What is a Journalist?The proliferation of new media sources has created a novel question: Just what is a journalist? Must one possess government-issued press credentials, sending shivers down the spines of First Amendment advocates? How about a requirement that you earn your living from journalism? Perhaps there should be a requirement that at least your Aunt Betsy actually read what you write?This question has taken on real legal significance as the U.S. Congress and many states have tried to implement so-called reporters'' shield laws. These laws attempt to protect reporters and their confidential sources by shielding confidential information from disclosure to courts and third parties.Although there has been substantial progress, a federal shield law has not yet passed. However, 40 states and the District of Columbia have shield laws, with many states enacting them after what some argued were Bush administration abuses, prosecutorial attacks on the press, and the prosecution of New York Times reporter Judith Miller.Some Republican lawmakers cited national security concerns with reporters'' shield legislation, and others had a more fundamental issue: How do you go about deciding which writers get to be journalists in a New Media world vs. Old Media world?Many hipsters sipping lattes at Starbucks like to bash so-called Old Media. As they iPad away their afternoons, bowing before the altar of New Media, they mock institutions such as The Wall Street Journal as the old media of their grandparents, and--bless their little black turtlenecks and Birkenstocks--they weren''t fooled by Rupert Murdoch''s purchase of Myspace. Silly, Rupert, New Media is for hip kids.But, the beautiful world of blogging Brown alumni opining on global warming and Maya Angelous contributions to literature while their conservative brethren blog on banks and hedge funds may be in for a shock to its modern sensibilities. There may be unwanted guests at this post-modern, online clambake, and it may be a sign of things to come.Bait Car as New MediaThe folks at truTV, that network of cop shows that used to be Court TV, have come up with a new show called, Bait Car. In Bait Car, the producers work with local police to place an unlocked car with keys in the ignition out on the street. Its the bait for would-be car thieves. Get it, bait, car?Many unsuspecting citizens, including Joseph Bullard, took the bait.Or did he?In the case of People v. Bullard in the Superior Court of California, San Francisco County, Mr. Bullard argued that he was merely being a good citizen, moving the Bait Car out of its illegal parking spot.He also argued selective prosecution. Mr. Bullard, a gentleman who enjoys cross-dressing, argued it was no coincidence that the unholy trinity of producers, police, and prosecutors arranged for the Bait Car to be placed outside Divas, a well-known, somewhat risque San Francisco transgendered club. Police countered that they just picked an area known for car theft.To prove Mr. Bullard''s Good Samaritan claim, his legal counsel wanted to see the tapes of the filming from KKI Productions, the producers of the San Francisco episodes of Bait Car. Not unlike Judge John Sirica sending an order to the Nixon White House, Judge Gerardo Sandoval ordered KKI to turn over the tapes.Not so fast, said KKI. Arguing that Bait Car was journalism and that the intrepid Bait Car photographers were, in fact, journalists and so under California''s reporters shield law, KKI refused.Judge Sandoval wasn''t buying it. He rejected KKI''s reporters shield argument, and demanded the tapes.Funny thing. You may have laughed at Mr. Bullard''s "I was only helping by moving the car" argument, but prosecutors dropped the charges against Mr. Bullard.Future of Journalism?Bait Car''s producers were working with prosecutors, turning over their tapes to the district attorney''s office, and that cooperation with cops was fatal to their legal argument, according to Judge Sandoval and legal journalism experts."You can''t have it both ways. You can''t cooperate with one side and not the other," said Lucy Dalglish, Executive Director of the Reporters Committee for Freedom of the Press."You can make a very strong argument that the cooperation with one side is a waiver of the privilege," Ms. Dalglish added.People v. Bullard does not decide the law on the contentious issue of who gets to be a reporter in the eyes of the law--although it does put Californians on notice that, if youre in cahoots with the cops, you probably don''t get to be one, at least for reporters shield purposes.The case also illustrates that the cozy little blogging world at Starbucks and beyond is also in the midst of a culture shift. The latter day hipsters may have make room on the Starbucks sofa for Bait Car journalists, Dog the Bounty Hunter, Big Brian the Fortune Seller, and the zany, fun-loving staffs of Ma''s Roadhouse, Lizard Lick Towing, and Hardcore Pawn.Yes, the Fourth Estate is becoming a very big tent in every respect imaginable...and in some not so imaginable.________________________Read more at the Washington Examiner: http://washingtonexaminer.com/blogs/opinion-zone/2011/04/law-bait-car-journalism#ixzz1LCFs9nEyApril 24, 2011The Law of Gwen Stefani AvatarsAt the time of this week''s legal tale, Gwen Stefani was a big, giant rock star, and Activision Publishing''s Band Hero videogame series was extremely popular. Combine the two - the theory went - and you would have what one of those MBA-types might call, synergy.Activision and Ms. Stefani thought so...until they ended up in court.This week''s Case of the Week illustrates the legal principle of the right of publicity. It also puts us on notice with the following legal poetry: Make Gwen Stefani a dude, and you''re gonna get sued.California Dreamin''In the 1990s, Gwen Stefani and Activision were both living the Southern California dream. Ms. Stefani and her Orange County band, No Doubt, achieved critical and commercial success, including Grammy nominations and huge recording contracts, while hitting the top of the charts with their 1995 single, Don''t Speak.Meanwhile, the friendly folks at Activision were building a videogame empire in Santa Monica with hit games such as MechWarrior 2: 31st Century Combat and Civilization: Call to Power. They also made some money off a game series based on the adventures of skateboarder Tony Hawk.Entering the 21st Century, one of Activision''s biggest games was its Guitar Hero series, which basically allows players to engage in computer-assisted air guitar. Band Hero was a similar, spin-off production.One of Band Hero''s features allowed players to create avatars based on real life rockers.Thinking it would be just nifty to have No Doubt avatars in the game - or at least thinking that it would be just nifty to have some of Activision''s cash -- No Doubt executed its Professional Services and Character Licensing Agreement with Activision, allowing the gamemaker to create avatars -- or computerized characters -- based on the band, and use them in Band Hero.Gwen is not a dudeMuch to their horror, the members of No Doubt learned about a special feature of Band Hero shortly before the product''s launch -- it was a special feature No Doubt may have worried pubescent punksters might manipulate.In their Agreement, Activision and No Doubt agreed Activision would license only a limited number of No Doubt songs for use in the game. However, that provision failed to consider another potential use of Band Hero.When players reached a certain level of the game, Band Hero allowed them to unlock their avatars, changing their song selection and personal characteristics.For instance, Activision licensed only a few No Doubt songs, but if Little Johnny were proficient enough in Band Hero to get his avatar -- say, perhaps, a lasciviously alluring Ms. Stefani -- to reach Level Nine of Band Hero, he could unlock her and free her from the bondage of her current condition, in every way, including gender.No Doubt was most displeased to discover that, once your Gwen Stafani avatar were unlocked, not only could Avatar Gwen be singing Janet Jackson, she could also be singing Tito Jackson.You see, once unlocked, an avatar''s voice could be changed from male to female.Not surprisingly, Ms. Stefani and her bandmates were not excited about the prospect of having their voices replaced with the manly sounds of Boy George.Ska vs. SuitsCould Activision really use the twisted avatars without No Doubt''s permission?No Doubt didn''t think so, and the band sued Activision in California state court. In No Doubt v. Activision Publg, Inc., the band sued for injunctive relief and damages, arguing Activision had engaged in the unauthorized exploitation of No Doubt''s name and likeness.The band sued on several grounds, including Activision''s alleged violation of No Doubt''s right of publicity.The right of publicity gives an individual control over the commercial use of her name or likeness. About half the states have a statutory right of publicity and others protect the right of publicity as part of their right of privacy laws.There has been a movement to extend the right of publicity beyond death. Not surprisingly, this movement is led by the heirs of some very famous dead people, including the heirs of Marilyn Monroe.California is one of those states with a codified right to publicity, contained in section 3344 of the California Civil Code.However, Activision countered that No Doubt''s right of publicity claim was barred as a matter of law because Activision''s actions on the avatars constituted constitutionally protected activity under the First Amendment.A Los Angeles Superior Court judge denied Activision''s motion to strike No Doubt''s complaint, and Activision appealed to California''s Second District Court of Appeal.Citing Comedy III Prods., Inc. v. Gary Saderup, Inc., the appellate court applied the transformative use test, a method to determine whether a use of a likeness was transformed from something more than a mere impersonation.The appellate court sided with No Doubt and the trial court. The court ruled that a transgendered avatar did not qualify as a transformative use. Thus, the appellate court held, the First Amendment did not excuse Activision''s alleged violation of its right to publicity."Nothing in the creative elements of the Band Hero elevates the depictions of No Doubt to something more than conventional, more or less fungible, images of its members that No Doubt should have the right to control and exploit. Thus, the trial court did not err in denying Activision''s motion to strike the right of publicity claim based on Activision''s assertion of a First Amendment defense," Judge Thomas Willhite Jr., wrote for the court,The court compared and contrasted Ms. Stefani''s avatar with the image in another case involving a Sega videogame and the former lead singer of Dee-Light, Kirby v. Sega of Am., in holding Avatar Stefani was not a transformative use. The First Amendment may be powerful, but -- at least in this Case of the Week -- it provides no constitutional protection for a Gwen Stefani avatar in a Boy George voice singing, Do You Really Want to Hurt Me?_________________________Read more at the Washington Examiner: http://washingtonexaminer.com/blogs/opinion-zone/2011/04/law-gwen-stefani-avatars-band-hero-No-Doubt-v-Activision-Publ-Inc#ixzz1KUS9gVwHApril 17, 2011The Law of Urinal TrademarksTrademarks and the legal disputes involving them may be the most entertaining area of intellectual property law, and a recent Pennsylvania federal court case illustrates just how entertaining trademark fights can be. You might think this fight over the name, "Pint," was a beer dispute. You would be wrong.This week''s Case of the Week examines what happens when two urinal manufactures get into a legal dispute over the names of their products.Pint of Yellow LiquidThe urinal and its bathroom cousin, the toilet, use a lot of water. As people have become more concerned about the environment, manufactures have joined the party, developing so-called green products, and urinal makers are no exception. After all, no self-respecting urinal manufacturer wants to be known as a truck stop eco-terrorist.Among the leaders in the urinal market are Zurn Industries and Sloan Valve Co. Both Zurn and Sloan wanted to help save the planet by making eco-friendly urinals.Zurn developed a urinal Mother Nature would love and named it, The Pint. The U.S. Patent and Trademark Office awarded Zurn the United States Trademark Registration No. 3,389,517 for The Pint, part of Zurn''s EcoVantage line of environmentally friendly "fractional flush" urinals. They''re called fractional flush because they use a fraction of the water regular urinals use when you flush them.Not to be outdone, the nature-loving folks at Sloan came out with their own environmentally sound urinal, the Sloan 1 Pint Urinal System.Not unlike a fraternity pledge spotting someone swiping his pint of Guinness from the bar, lawyers for Zurn swung into action.Urinating ContestAfter noticing a Sloan press release for the Sloan 1 Pint Urinal System on the website, greenlodgingnews.com, Zurn''s lawyers sent Sloan a cease and desist letter, arguing Sloan''s name infringed on Zurn''s registered trademark for The Pint. Zurn demanded that Sloan stop marketing its allegedly infringing urinal with "pint" in its name.In an apparent attempt to maintain peace and harmony in the urinal world, Sloan changed the name of its urinal from the "Sloan 1 Pint Urinal System" to the "Sloan Pint Urinal System."It was a nice try, but Zurn was unsatisfied. Simply deleting the numeral, "1," from the name wasnt enough. Not unlike Carrie Nation on a bar raid, Zurn wanted the Pint the h*ll out of there.Sloan refused, and Zurn''s trademark lawyers did what it takes to become the Case of the Week. They sued.In its case, Zurco, Inc. v. Sloan Valve Co., filed in the U.S. District Court for the Western District of Pennsylvania, Zurn argued Sloan''s use of its name violated the federal Trademark Act of 1946, known commonly as the Lanham Act. Specifically, Zurn argued that Sloan''s name caused a likelihood of confusion among potential customers.Sloan countered that -- despite Zurn''s federal trademark registration --The Pint was not a legally protectable trademark for a urinal because the mark was generic, a trademark legal term meaning the name is a common, general term with no secondary meaning.Sloan argued that pint was merely an identification of a type of urinal -- one that uses one pint of water when flushed. Thus, Sloan argued, urinal purchasers would associate the term, pint, with the flush volume of the urinal, not the maker of the urinal, Zurn.In attempting to decide the dispute between the fighting flushers, the federal court applied the so-called primary significance test, used in many cases, including A.J. Canfield Co. v. Honickman. Under the primary significance test, the court determines whether the primary significance of a term in the minds of the consuming public is the product or the producer.The court illustrated the difference by citing E.T. Browne Drug Co. v. Cococare Products, Inc., where the court made the distinction that cola was generic because it described a product, but Pepsi-Cola is not generic because it describes the producer.Zurn disputed the generic label by noting that, in the toilet and urinal industry, flush volumes are described -- not in pints -- but with the terms, gallons per flush (GPF) and liters per flush (LPF). In fact, Zurn claimed the use of gallon and liter by those other wasteful water-hogs in the toilet and urinal industry was precisely why it chose the unique term, pint.However, Sloan countered that pint had become an industry standard, noting that American Standard has used pint and 1 point since 2008, Mansfield Plumbing Products has used 1-pint for its Brevity line of urinals, and Caroma USA had used one pint for its Cube Ultra line of urinals for two years.Unfortunately for Sloan, the court noted that none of those urinal craftsmen had used the term before Zurn introduced the Pint in 2007. In addition, Zurn argued it had been diligent in sending cease and desist letters to the allegedly infringing urinal producers, a requirement for protection under trademark law.To Be ContinuedIn denying motions for summary judgment on most issues, the court held that there were genuine issues of material fact as to whether The Pint was generic. As a result, the case will move forward, and more evidence about urinals and what people call them can enter the hallowed halls of American jurisprudence.________________________Read more at the Washington Examiner: http://washingtonexaminer.com/blogs/opinion-zone/2011/04/law-urinal-trademarks#ixzz1K9cmh600April 10, 2011The Law of Chicken HeadsEmotional injuries and related damages may be one of the most contentious areas of the law, especially when -- as in thisweek''s Case of the Week -- that emotional injury is based on an employer''s forcing a worker to wear a chicken head mask in order to get medical benefits. Yes, this week, we go to Massachusetts to bring you the law of chicken head damages.Poultry ProblemsKaren Cappello worked full-time for Cricket Productions, where she processed orders. Because she was a full-time employee, she asked her boss, Victor Grillo Jr., for medical coverage.Mr. Grillo was very happy to give Ms. Cappello the medical coverage she desired, but it seems there was a catch.Mr. Grillo said Ms. Cappello could have the medical insurance only if she wore a chicken head mask."No head, no payment," Mr. Grillo wrote in an e-mail.We''re not making this up. We couldn''t come up with stuff this good.Even with major medical and hospitalization coverage for her young daughter on the line, Ms. Cappello declined to don the chicken head, which was part of a complete chicken costume kept in the office. You see, according to court papers, the employees at Cricket Productions considered themselves a fun-loving group that often socialized after hours.Apparently, none of the production place''s playful pranksters thought there was anything odd about making a session in the chicken head a prerequisite to health coverage.Ms. Cappello did.Saying she became too depressed to work as a result of the alleged harassment, Ms. Cappello sought medical attention and claimed she was unable to work.Of course, this is the Case of the Week, so you know what happens next.Colonel Sanders or Jack Daniels?Ms. Cappello decided to file a claim for her alleged injuries, and an administrative legal action ensued. Cricket carried no workers compensation coverage, but an administrative law judge held that, because Cricket was doing the business of DTR Advertising, Inc., DTR''s insurer, The Hartford Insurance Co., was liable for Ms. Cappello''s claim.Based on the opinion of her psychiatrist, Mark Cutler, Ms. Cappello argued Mr. Grillo''s alleged chicken head harassment was the predominant contributing cause of her adjustment disorder and major depressive disorder. The administrative law judge agreed and held for Ms. Cappello, but The Hartford appealed, arguing the chicken head incident was not the predominant contributing cause of Ms. Cappello''s alleged injuries.Hartford argued there could be other potential causes for the alleged injuries, and -- on appeal to the Commonwealth of Massachusetts Department of Industrial Accidents in the case of Cappello v. DTR Advertising, Inc. -- the judges noted that Ms. Cappello had received previous psychiatric treatment for issues related to a divorce and an alcohol-dependent husband.Ms. Cappello rejected the notion that marital warfare or her husband''s close, personal relationship with Jack Daniels and Johnnie Walker caused her injuries.It was all about that chicken head.Foul fowl?Because of her preoccupation with the perceived harassment at work and her disbelief that she was being asked to do what her employer asked her to do, which she perceived as very humiliating, she has been unable to return to any work for which she is reasonably trained by virtue of her education and job experience, Ms. Cappello''s psychiatrist told the administrative law judges.In a legal ruling sure to shock the San Diego Chicken, Mardi Gras revelers, and others who actually enjoy wearing chicken head masks, the judges sided with Ms. Cappello.Rejecting the insurer''s argument that there were other causes for Ms. Cappellos psychiatric issues, the judges ruled Ms. Cappello had shown those problems were not the cause of her present injuries. Although the judges conceded she had past psychiatric problems, they noted she had not experienced her present symptoms until the chicken head incident.The judges held that Dr. Cutler''s medical opinion satisfied the Massachusetts standard for predominant contributing cause of injuries established in the Massachusetts Appeals Court decision, May''s Case, and the Massachusetts Supreme Judicial Court decision, Robinson''s Case.In addition, citing Bouras v. Salem Five Cents Savings Bank, the judges held that, because Dr. Cutler''s opinion satisfied the predominant contributing cause standard, the chicken head incident was the only legal cause of her injuries."Because the doctor''s opinion effectively ruled out the previous stressors in the employee''s life as causes of her emotional disability, his opinion can be understood to implicate the events at Cricket Productions as the only cause," the judges wrote.The Massachusetts case of the chicken head was remanded to the lower judge on additional claims Ms. Cappello made, but she was victorious on this day...so was her lawyer.For their efforts on behalf of their client and for furthering the jurisprudence of chicken heads in the Commonwealth of Massachusetts, the judges awarded Ms. Cappello''s lawyer $1,488.30 in legal fees.__________________________Read more at the Washington Examiner: http://washingtonexaminer.com/blogs/opinion-zone/2011/04/law-chicken-heads#ixzz1J7TcDYNfApril 1, 2011The Law of April Fools'' JokesFor our April Fools'' Day edition of the Case of the Week, we visit the California Court of Appeal, which supplies us with a case touching on constitutional law, contracts, defamation, and, of course, the law of April Fools'' jokes. Not surprisingly, our case involves Sasha Baron Cohen, known popularly as Borat and Ali G.A 2004 episode of Mr. Cohen''s British television show got his network into a bit of trouble, and it had to pay the alleged target of his jokes $90,000. When the infuriated supposed subject came back for more, it ended up in American court, raising the question: could a reasonable viewer take the show seriously, resulting in a judgment for defamation?The Art of AmendingOn a 1987 youth trip to Israel, Sasha Baron Cohen began a friendship with a woman known only as "Jane Doe" in court proceedings. The friends lost touch over the years, but Ms. Doe followed Mr. Cohen''s increasingly successful career as a comedian, and, apparently, Mr. Cohen never forgot Ms. Doe''s real name.On the Aug. 15, 2004, episode of Mr. Cohen''s television show, Da Ali G Show, Mr. Cohen interviewed the American author, Gore Vidal. Among the topics of conversation were the United States Constitution and the practice of amending it.Mr. Cohen asked Mr. Vidal if it were not sometimes better to get rid of something rather than amending it. As an example, Mr. Cohen referred to Ms. Doe. Using her real name and referring to her with a term also used to describe a female dog, he said Ms. Doe was always trying to amend herself by such means as highlighting her hair, adorning herself with tattoos, and shaving her private regions.Mr. Cohen said Ms. Doe''s amending was for naught because he dumped her after he impregnated her. (Ms. Doe denied her relationship with Mr. Cohen was ever romantic or sexual in nature.)Given what Mr. Cohen claimed were Ms. Doe''s unsuccessful attempts at amending herself, he reasoned that amending anything -- including the Constitution of the United States -- was ill-advised.With no apologies to Vidal Sassoon, the people of the Eastern Hemisphere, or George Washington, in his role as Ali G, Mr. Cohen went on to suggest that Mr. Vidal was an internationally famous hairstylist, that euthanasia was a means of exterminating the elderly in Asia, and that Denzel Washington resided at Mount Vernon.Ms. Doe was not amused.Costly ComedyDa Ali G Show was produced by Britain''s Channel Four Television Corp. and distributed in the United States by HBO. After complaints from Ms. Doe, HBO settled with her in 2004 for $40,000. As part of the settlement, HBO agreed to edit the episode so Ms. Doe''s name would be removed in any future broadcasts.Well, Ms. Doe''s fame -- or infamy, depending on ones perspective -- continued. When HBO presented the episode on Comcast, it left Ms. Doe''s name in the airing of the show, resulting in another settlement with Ms. Doe in 2006 with the same terms as the 2004 settlement, except this time Ms. Doe received an additional $50,000 payday.Nevertheless, viewers of Da Ali G Show had not heard the last of Ms. Doe.When a friend of Ms. Doe''s saw the unedited version -- that would be the one with Ms. Doe''s name -- on YouTube after the second settlement, he contacted her, and they discovered a viewer in Estonia had uploaded the clip from Finnish television, which had received the unedited version from Channel Four.No more settlements. Ms. Doe decided to take her battle to court.The Law of April Fools''Ms. Doe sued HBO and Mr. Cohen in California state court, and later added Channel Four as a defendant. She sued on multiple grounds, including libel, slander, breach of contract, invasion of privacy, and negligent infliction of emotional distress.Channel Four moved for summary judgment -- a legal ruling where one side wins the case before it even gets to trial -- arguing, among other things, that no reasonable person could have understood Mr. Cohen''s statements as factual.The trial court sided with Channel Four."No reasonable person could consider the statements made by Ali G on the program to be factual. To the contrary, it is obvious that the Ali G character is absurd and all his statements are gibberish and intended as comedy. The actor, Sacha Baron Cohen, never strays from the Ali G character, who is dressed in a ridiculous outfit and speaks in an exaggerated manner of a rap artist. Ali G''s statements are similarly absurd," the trial court said.Ms. Doe appealed, but she fared no better with the Californi''s Second District Court of Appeal in Doe v. Channel Four Television Corp. Citing cases involving comedian Robin Williams and an April Fools'' joke, the appellate court agreed that no reasonable person could have taken Mr. Cohen seriously. Thus, the court held, there was no defamation.In the case involving Robin Williams, Polygram Records, Inc. v. Superior Court, California''s Third District Court of Appeal held there was no defamation when Mr. Williams did a skit where a wine distributor complained that there was white wine and red wine, but no black wine.The court noted Mr. Williams said the so-called black wine was tough enough to be advertised by Mean Joe Green, was black in color, tasted like urine, and went with anything it damn well pleased. The court added that no reasonable person could have taken Mr. Williams seriously and that to hold the skit defamatory would run afoul of the First Amendment.Likewise, in San Francisco Bay Guardian, Inc. v. Superior Court, California''s First District Court of Appeal held there was no defamation when, in its April Fools'' Day edition, the San Francisco Bay Guardian newspaper ran a fictitious letter from a landlord stating that he found his tenants who had undergone electroshock therapy where much more cooperative because no reasonable person would take the fake letter seriously.Today''s legal lesson is thateven if it involves an electroshocked tenant with shaved privates drinking black wineits tough to win a defamation action against a comedian.________________________Read more at the Washington Examiner: http://washingtonexaminer.com/blogs/opinion-zone/2011/03/law-april-fools-jokes#ixzz1ISyc57fbMarch 27, 2011The Law of Cantaloupes and Inflatable SharksHave you ever been really impressed by marketing displays constructed at your local store, where industrious employees create displays of commerce only slightly less impressive than the Taj Mahal?Well, Joyce Henderson may have felt that way before she broke her hip falling before a marketing temple of stacked cantaloupes at her local supermarket.Adding insult to injury, Ms. Henderson lost again in this week''s Case of the Week as the U.S. District Court for the Eastern District of Oklahoma grappled with the weighty issue of whether cantaloupes are the legal equivalent of inflatable sharks for premises liability purposes.Cantaloupes of DoomThe story of Henderson v. Harps Food Stores, Inc., began on a fine June day in 2009 when Ms. Henderson visited the Harps Food Store in Fort Gibson, Okla. Harps employees had created a display of cantaloupes, which was actually a giant octagon of wholesome, fruity goodness.Harps displayed the cantaloupes in large cardboard containers resting on a wooden pallet. The cardboard containers were roughly square in shape with the corners slightly recessed, forming the muskmelon octagon.Ms. Henderson admitted spotting the pallet beneath the pile, and even considered the pesky pallets potential as a pitfall. Nevertheless, she plowed ahead.While examining one of the succulently sweet cantaloupes, Ms. Henderson''s foot caught on the pallet, and she hurt her hip hitting Harps'' hard floor.The stage was now set for Ms. Henderson and Harps to debate the jurisprudence of cantaloupes vis-a-vis inflatable sharks.Ms. Henderson sued Harps in Oklahoma state court in a tort action, alleging Harps was negligent in its dangerous display of the killer cantaloupes and in its negligent failure to warn customers of its alleged fruity booby trap.Harps removed the case to federal court and filed a motion for summary judgment, arguing it was not liable because the exposed cantaloupe pallet was an open and obvious condition.Generally, under Oklahoma premises liability law, which applied even though the case was in federal court, businesses are not liable for damages sustained from these so-called open and obvious conditions. However, there is a possible exception in the law for conditions or defects visible but unseen by a plaintiff.Ms. Henderson and Harps battled over the case law. For instance, both parties cited the Oklahoma Supreme Court case of Phelps v. Hotel Mgmt., Inc., where an unsuspecting patron hit her head on a decorative glass bowl that protruded into the seating area of a hotel lobby.Sure, the thing was open and obvious in the literal sense, but the court in Phelps held a reasonably prudent person might not have noticed the risk of injury from the protrusion of funky art into the seating area and -- for the condition to be open and obvious as a matter of law -- the potential for injury must also be noticeable.The court in Henderson rejected Ms. Henderson''s reliance on Phelps and another court decision, Zagal v. Truckstops Corp. of Am., a case where things went horribly awry in the aisle of a truck stop. The court held those cases did not apply to Ms. Henderson''s case of the killer cantaloupes because -- not only did Ms. Henderson see the open and obvious collection of cantaloupes -- she knew it posed possible danger.However, all hope was not lost for Ms. Henderson. It was time for her lawyers to launch a legal shark attack.But could an inflatable shark really save Ms. Henderson''s case?Shark TaleMs. Henderson''s attorneys cited the Oklahoma Court of Civil Appeals case of Hansen v. Academy, Ltd., where Kimberly Hansen, an unsuspecting customer, was apparently in awe of a large inflatable shark that was part of a boat display on the sidewalk in front of an Academy sporting goods store.So mesmerized by the inflatable shark was Ms. Hansen that she proceeded to walk straight into the tongue of the boat, causing her to trip and break both her arms. Ms. Hansen sued Academy, but a trial court ruled for the sporting goods store, holding that the boat tongue was an open and obvious condition.But, remember...Jaws had a sequel.Ms. Hansen appealed, and the intermediate appellate court ruled for her. Noting an Academy employee testified the purpose of the inflatable shark was to get people''s attention, the appellate court reversed the trial court''s grant of summary judgment to Academy, holding that, although the boat tongue was visible, the plastic, air-filled fish of terror changed the legal outcome."The evidence certainly raised a question of fact as to whether Academy intended for its customers to devote their attention to the merchandise on display rather than to the sidewalk," the appellate court held in Hansen. Unfortunately for Ms. Henderson, U.S. District Judge James Payne wasn''t buying the shark argument in her case.Noting that arrows on the cantaloupe boxes actually pointed to exposed pallet on cantaloupe display, Judge Payne held the inflatable shark case didn''t apply."Because the cantaloupe display actually drew attention to the alleged hazardous condition, the Hansen case is distinguishable and does not provide an exception to the open and obvious rule," the judge wrote.The lesson of our Case of the Week? Apparently, at least in Oklahoma, a cornucopia of cantaloupes provides no exception to the open and obvious rule...but, an inflatable shark does._______________________Read more at the Washington Examiner: http://washingtonexaminer.com/blogs/opinion-zone/2011/03/law-cantaloupes-and-inflatable-sharks#ixzz1HonZsGj9March 13, 2011The Sixth Amendment and another Texas Chicken Ranchby David HorriganIn the film adaptation of the Broadway musical, The Best Little Whorehouse in Texas, Burt Reynolds, playing a Texas sheriff, falls in love with Dolly Parton, portraying the good-natured, warm-hearted proprietor of a local brothel. That theatrical house of ill-repute was based on a real life bordello known as the La Grange Chicken Ranch.Although many local residents supported the Chicken Ranch -- and the entertainment and tax dollars it brought to Greater La Grange -- its closing involved law enforcement at the highest levels of Texas government.For those whove always wanted yet another sequel, we have one for you. It doesn''t have Ms. Parton, Mr. Reynolds...or even Dom DeLuise. What is does have is an intriguing question of constitutional law, which is why it gets to be our Case of the Week.Texas cathouse jurisprudence now considers: Does memory loss render a witness absent for purposes of the Confrontation Clause of the Sixth Amendment to the United States Constitution?Before we get to any of that legal stuff in the case of Woodall v. Texas, let''s take a look at the story of the latest little whorehouse in Texas.Naughty HaremPhyllis Anne Woodall may or may not have a lot in common with Dolly Parton''s Best Little Whorehouse in Texas character, Miss Mona Stangley, but Texas prosecutors alleged they were in the same profession.Ms. Woodall was the co-owner and operator of the Naked Harem, an El Paso, Tex., establishment some would refer to euphemistically as a "gentlemen''s club." Ms. Woodall and her business partner, Jeannie Coutta, ran a strip joint empire, El Paso Cosmopolitan, which not only operated the Naked Harem, but also its sibling club, the El Paso Cosmopolitan Topless Show Bar.Sadly for the ladies and their clients, those Texas prosecutors thought they were having a little too much fun.After repeated incidents of alleged prostitution at the Naked Harem, authorities arrested the ladies, charging Ms. Woodall with aggravated promotion of prostitution and engaging in organized criminal activity.At trial, prosecutors called dancers who testified prostitution was plentiful at the club, while Naked Harem loyalists testifying for Ms. Woodall cited Naked Harem policy forbidding dancers from having sex with its gentile clientele. Ms. Woodall then called a dancer, Lucia Pinedo, to testify.It was a bad move.Forget Me NotMs. Pinedo testified she sustained memory loss after an automobile accident and that she could not remember her prior testimony before a grand jury -- nor could she remember even being part of the Naked Harem. However, when Ms. Pinedo didn''t show up for a subsequent day of the trial, prosecutors -- over Ms. Woodall''s objections -- read her grand jury testimony for the jury.Before the grand jury, Ms. Pinedo had testified she had sex with patrons many times in the club''s private rooms, and -- in an unfortunate turn of events for Ms. Woodall -- Ms. Pinedo testified that, although she lied about her age to Naked Harem staffers, she was only 15-years-old when she began dancing at the club. To make matters worse, Ms. Pinedo contradicted the testimony of one of Ms. Woodall''s managers who said Ms. Pinedo showed a birth certificate as part of her identification upon being hired.Instead, in a moment worthy of X-rated versions of High School Musical or Glee, Ms. Pinedo testified her identification to get her job as an exotic entertainer was not her birth certificate, but was, in fact, her high school ID card.As they did with the La Grange Chicken Ranch, the good people of Texas may turn the other cheek when it was just a bunch of adults having consenting, albeit illegal, fun...prostitution by 15-year-olds is a very different story.After prosecutors made numerous references to Ms. Pinedo''s impressionable youth during closing arguments, the jury sentenced Ms. Woodall to 16 years in prison.Ms. Woodall appealed, arguing, among other things, that introducing Ms. Pinedo''s grand jury testimony was a violation of Ms. Woodall''s rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution because Ms. Pindeo''s memory loss prevented Ms. Woodall from being able to cross-examine her.Constitutional ConfrontationA Texas intermediate appellate court reversed the trial court and sided with Ms. Woodall, holding that allowing prosecutors to read Ms. Pinedo''s grand jury testimony to jurors despite her memory loss violated Ms. Woodall''s Sixth Amendment Rights because the State used out-of-court testimonial statements [the grand jury testimony] about which the declarant [Ms. Pinedo] could not be cross-examined due to memory loss.The state argued also that, because Ms. Woodall refused the trial judge''s offer to issue a so-called writ of attachment forcing Ms. Pinedo to return to continue her testimony, Ms. Woodall was precluded from arguing Ms. Pinedo was absent for Confrontation Clause purposes.However, Ms. Woodall argued that Ms. Pinedo''s memory loss made recalling her futile, and the intermediate appellate court agreed."She did not remember giving the grand jury statement, nor could she remember working at the Naked Harem. A writ of attachment would not have changed Pinedo from an absent witness into a witness available for trial and examination. Her undisputed testimony about the car accident and resulting memory loss established that she was unavailable as a witness regarding the relevant subject matter," the intermediate appellate court held.Yet, in another legal twist, on Mar. 2, the Texas Court of Criminal Appeals, the states highest court for criminal matters, reversed the intermediate appellate court on both issues.First, citing three U.S. Supreme Court decisions, California v. Green, Delaware v. Fensterer, and United States v. Owens, the Texas high court rejected the argument that a Confrontation Clause violation could be based on witness memory loss.Second, Ms. Pinedo''s memory loss notwithstanding, the court held Ms. Woodall''s failure to take the trial judge up on the offer to haul Ms. Pinedo back into court was fatal to her Confrontation Clause argument. The court said Ms. Woodard induced the alleged error of which she now complains, and she may not argue on appeal that her confrontation rights were violated.In the movie, Burt and Dolly went off happily into the sunset. It doesn''t look as though thats happening here._________________________Read more at the Washington Examiner: http://washingtonexaminer.com/blogs/opinion-zone/2011/03/sixth-amendment-and-another-texas-chicken-ranch#ixzz1HaDgOkKeMarch 6, 2011Labor, Lassie, and the LawIts been a tough week for the First Amendment and labor unions, but perhaps not for puppies.In this space, we attempt to look at the lighter side of the law, but there''s just nothing funny about a Marine making the ultimate sacrifice for his country or alleged followers of Jesus thinking the Messiah wants them desecrating other people''s religious services. However, Americas courts never let us down when we need comic relief, and free speech cases are no exceptionThis week, California''s Second District Court of Appeal ruled on a particularly perplexing constitutional quandary. It''s a question not yet addressed in the current labor unrest in Wisconsin:Does labor union speech enjoy greater constitutional protection than speech about puppies?Well give you the court''s answer in Best Friends Animal Socy v. Macherich Westside Pavilion Prop., LLC, in a moment, but let''s start off by saying that -- not unlike fallen heroes and violated funerals -- theres nothing funny about animal abuse or unfair labor practices. Nevertheless, what we''ve got here is an appellate court of law weighing the constitutional rights of terriers versus Teamsters.Puppies and PicketersThe Best Friends Animal Society does good work. Not only does the Utah-based organization have adoption programs for dogs and cats, it has programs for parrots and pigs as well. In addition, it operates an animal sanctuary, and its Pup My Ride program transports dogs from overpopulated areas to places where they are more likely to find homes.Best Friends also operates the Puppies Aren''t Products campaign with the stated goals of fighting against so-called puppy mills and irresponsible breeding.One of the weapons in Puppies Arent Products arsenal is the staging of protests at shopping malls where the evil puppy mills alleged middle men -- the pet shops -- attempt to sell their canine cargo.Although Puppies Arent Products bills its mission as a fight against the puppy mills, unlike more militant animal rights groups, Puppies Arent Products stresses the peaceful nature of its protests...a Gandhi for golden retrievers, if you will.Peaceful or not, one shopping center didn''t want to give the puppy protesters free rein over its establishment. When Puppies Arent Products targeted the Barkworks Pups & Stuff store at Los Angeles Westside Pavilion, the owners of the mall swung into action.Not unlike abortion protesters at a Democratic convention or anti-war protesters at a Republican convention, the puppy protesters were confined to undesirable areas -- in this case, mall space far away from Barkworks. Incidentally, Barkworks denies its dogs come from puppy mills, stating it takes great pride in having built a reputation of bringing healthy, happy puppies to loving families and homes.Look for the Union Label?Westside Pavilion had rules about when people could protest in its common areas. The rules applied to so-called noncommercial expressive activity, and covered various forms of expression, such as political and religious speech, soliciting for signatures on petitions, and the dissemination of noncommercial leaflets and fliers.The rules were what constitutional lawyers call content neutral, meaning the rules didnt vary depending on what a speaker was saying. There was just one catch.Labor unions got special treatment.The mall had special rules for qualified labor activity, which was defined, in part, as activity authorized by the National Labor Relations Act (NLRA) or applicable state labor laws.Non-labor expressive activity -- such as the puppy protest -- was limited to certain areas of the mall and was subject to certain blackout days, days when no protests were allowed, such as the busy business days of Valentines Day, Halloween, and the Christmas shopping season.In contrast, labor expressive activity had no blackout dates, and the workers'' expression could take place near the targeted, allegedly union-busting establishment.The litigating Lassie lawyers saw this distinction as the way to get the puppy protesters within pawsteps of the alleged villains at Barkworks.Collies in CourtBest Friends sued Westside Pavilion''s owners in California state court, arguing the mall''s restrictions violated the free speech provisions of article I, section 2 of the California Constitution. Specifically, Best Friends argued, among other things, that it was unconstitutional for the mall to give labor union protesters preferential treatment over the Puppies Arent Products protesters.Westside Pavilion countered that the restrictions passed constitutional muster and that the mall was forced to give labor union protesters special treatment in order to comply with state and federal labor law.The mall won the first round when California Superior Court Judge Linda Lefkowitz ruled against the puppy protesters, holding that, under the 1997 California appellate decision, Union of Needletrades, Indus. & Textile. Emp. v. Superior Court, the shopping mall was within its rights to limit the activities of the puppy protesters and that the NLRA and state law required the mall to make special accommodations for labor protesters.But, this dogfight wasnt over.Best Friends appealed and found a more fur-friendly tribunal in California''s Second District Court of Appeal. In a 3-0 decision on Mar. 2, the appellate court overturned Judge Lefkowitz, and ruled in favor of the puppy protesters.The appellate court rejected the holding of the case on which Judge Lefkowitz relied and instead followed two other California appellate decisions, H-CHH Associates. v. Citizens for Representative Government and Snatchko v. Westfield LLC, in holding the mall could not restrict the puppy protesters in the manner it sought, and it rejected the mall''s preferential treatment of labor protesters.The appellate court said the mall suggests that the law compels it to discriminate. But federal and state laws do not require shopping malls to give labor speech more access to common areas than political and other types of free speech.Celebrating its victory and the apparent end of Puppies Arent Products banishment to the dark corners of the mall where one wouldn''t expect to find Jennifer Grey, Best Friends issued a statement entitled, Nobody Puts Baby in a Corner.______________________________________________Read more at the Washington Examiner:http://washingtonexaminer.com/blogs/opinion-zone/2011/03/labor-lassie-and-law
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