File This Under Inappropriate?

So... I'm still kinda reeling on this one.

This is not my case. I am helping out a friend of mine, an attorney, on a restraining order and divorce matter. My friend is an early thirties woman who has, in her own words, acted a magnet "asshole men" since she got out of college. Not sure why is started then, but it did.

This case involves a wife who has had enough with being the husband's punching bag, and just wants to get away from the guy. So she went to my friend, we'll call her Jen, to expedite her escape. I got roped into this mess because Jen is a very good criminal attorney but is iffy on civil procedure questions.

Iffy is a kind way to describe it. But I digress.

The other side has turned what should be a simple hearing into another trip to Volga. They've conned the judge into giving multiple delays while they've subpoenaed everyone in site while hiding the money and conducting a campaign of terror against the client through his proxies.

Isn't family law great?

So amidst all this, we've gotten to know opposing counsel really well. I by letter (since I've done all the letters) and her in person when they've talked. As she describes him, he starts off by insulting our client, then he insults her while proclaiming his client's virtue and announcing that this is nothing more than a shakedown by a vengeful spouse.

Charmer right? But wait, there's more. He is 68 years old, divorced, and has urinary problems (as in he has to go to the bathroom every 10 minutes or he'll lose control). We'll call him Attorney U.

Today, they got to go head to head again in court. They were sent out, the judge reserving decision, with orders to "Work something out!". Eventually they did (about what I figured the result would be and told her we should plan for). At the end of it, this is the conversation that happened:

Attorney U: So that's settled. You will get your client to sign off on it. .. I can tell you are intrigued by me.
Jen: What makes you say that?
Attorney U: I can tell by the way you look at me.
Jen: I have no idea what you are talking about.
Attorney U: How about dinner on Thursday?
Jen: Excuse me? You're joking.
Attorney U: No. Dinner Thursday. You and me. Call me about it.
Jen: I'll call you about the deposition schedule tomorrow.
Attorney U: Great. When you do, you can tell me what time to pick you up.

My friend tells me this. Whats worse, she says now, after he has been such an ass, that she is curious.  Hopefully she will let this one remain a mystery.

Seriously, What Is Wrong With Attorneys These Days

What is the problem with lawyers these days? It seems like so many of the attorneys I deal with are being disingenuous when they say they want to resolve a matter. Why? Because if I start trying to work out a solution the same refrain comes back every time: Why don't we wait until mediation?

That is perhaps the most assinine thing. Unless of course you enjoy spending your client's money for a mediators time, as well as the attorneys time. 

What is the problem with trying to get the ball rolling so that when it does come to mediation, if it must, that instead of trying to bridge a huge chasm at $400 dollars an hour, its just the last 3 outs of the game? 

I understand that in some cases, the sides are so far apart that only a mediator may be able to get one or both of the sides to make the compromises necessary to get a settlement done. However, it feels like an excuse they use to avoid having to do work. This way, instead of the attorney being responsible for a settlement, at least in the eyes of an attorney's client, they can place all the blame when buyers remorse comes on the fact that it was really brokered by the mediator and the client signed off on it. Have we as lawyers really gotten that bad? Or that lazy?

ADR was originally billed as the cost-effective way to end cases prior to trial. However, instead of doing that, they've become mini-trials, even when its mediation and not arbitration. Think I'm wrong? Take a look at the mediation brief that gets submitted. More often then not, its not just a little road map so that the arbitrator gets an idea of whats going on. Rather they are essentially trial briefs, previewing the case down to the last bit of evidence. Sure, it supposedly gets all the cards on the table. However, if you have an attorney who is not walking malpractice, then they should have already brought the bad cards to the client's attention. 

ADR has its place. However, lawyers have become over-reliant on the mediators to accomplish the job. This is bad for both the attorney, and even more so, for the clients who have to pay the mediator's salary. And lets face it, they all don't look like Kate.

So next time, why not talk to your opposing party first. Whats the worst that can happen? You go the meidator later and drop a few grand of your client's money there. But at least you took a stab at being an attorney and not just someone who spends other people's money needlessly.

Another Interesting Lawsuit.

Rick Norsigian just got sued in Federal court by the Ansel Adams Trust. All for using something he picked up at a garage sale.

What makes this so interesting? And why are they suing him?

Apparently Rick Norsigian went to a garage sale a few yearsback. There he picked up some glass plate negatives. When he got them home, he realized what he had bought: some lost Ansel Adams negatives. Eventually, he came forward and said so.

And the Ansel Adams people looked at him skeptically. The grandson of Ansel Adams, Matthew Adams, even came out and stated

"Mr. Norsigian has been claiming these negatives were made by Ansel Adams for many years,...I am unaware of anyone knowledgeable agreeing with him."

Well, some people apparently do agree with Mr. Norsigian. Actually, a bunch of experts who studied the negatives and came to the conclusion that they were Adams' work. So Mr. Norsigian is putting on a show of the "lost" Ansel Adams pictures and selling prints.

So what does the Ansel Adams Trust do?

Why they sue him. For selling the pictures he prints off the negatives. Although they are doing it in a slightly sneaky way. They are going after him for calling them Ansel Adams' work.

Going to be interesting to see how this works out.

Sometimes I swear people are just begging to get sued

Now, let me preface this by stating I think the hijab is a bad thing. I view it as a symbol of oppression towards women and alot of what I don't like about fundamentalist (Muslim or otherwise). I don't like it when its worn by Muslim women, or when its cousin is worn by orthodox Jewish women.

That being said, I have to ask whether Hollister Co. just wanted to get sued. Apparently they hired a religious Muslim woman to work at one of their stores in the Hillsdale Shopping Mall, not too far from San Francisco. According to her, she went to the interview wearing the hijab, as she always does, and even asked them if it was a problem. When she was hired, she was told that it was not a problem as long as the colors were acceptable.

Well, apparently someone did not get the memo. And she was fired earlier this week.

What's even more astonishing to me is the report that a Human Resources person was involved in the phone conference that lead to her firing. Did anyone bother to take a look at a some little documents, like the Constitution of the United States (that would be the First Amendment)? Or perhaps Title VII of the Civil Rights Act of 1964. Perhaps they couldn't be bothered to look at the EEOC website where it talks about how employers have a duty to reasonably accommodate their employees religious beliefs.

People, this is not rocket science. Hell, this is common sense stuff, or should be. They fired her for wearing religiously required piece of clothing. The equivalent would be firing a Jew for wearing yarmulke, a Moromon for wearing Mormon underwear, or a Sikh for wearing the turban.

Now, before someone asks, reasonable accommodations doe snot mean that an employee gets to do whatever they want. In this case, it would have meant letting her wear the hijab since it would not be a great imposition on the company do so. Conversely it does not mean that she would be allowed to use the company time or location for the purpose of proselytizing.

Now CAIR is going to get up in arms and have their soapbox issue to say how evil we all are. Hell people, think before you fire something for something like this.

Georgina Blackwell

Imagine that you've gone through undergraduate and earned a degree. Then you've gone through legal training, and been admitted to the bar. You've done your scut work, gotten promoted to the point where you get to be in charge of cases for one of the largest builders in the country. In fact, some newspapers have said you are one of the top lawyers in the country.

And in walks someone with no training. Little formal education past secondary school. And they proceed to kick your ass.

It happens. And most recently, it happened in Royal High Courts Of Justice in London.

Just to make it worse, from the lawyer's perspective, the lawyer in question got beat by a beautician.

Georgina Blackwell's mother lives in a house in Essex. However, it stood in the way of a developer's project. Before Ms. Blackwell's mother could get a lawyer she could afford, the developer had her in court and got an order allowing them to demolish a good portion of her house for their project.

Not willing to let this happen, Ms. Blackwell tried to get a lawyer for her mother. However, they could not afford one. So Ms. Blackwell, who apparently had foregone a law career before to help support her mother, decided to take on the case herself. She drafted the case, argued it before the High Court, and won. The developer had to pay for the property (to the tune of £ 75,000) and had to give up the costs that they had won in the initial round of litigation (about £ 20,000), and pay Ms. Blackwell's legal costs.

As a result of the publicity, she has been offered a place at one of the Inns (the British version of law school). Her response: she's interested but "the idea of giving up work again and becoming a student is a bit scary, plus I’ll miss my old job and my lovely clients."

Wow.

In Case Anyone Was Worried

If anyone was worried about where to find those "special" pilates instructors, those joyful endings to your massages, have no fear. Craigslist will still be allowed to have an Adult Services section of ads.

A federal court judge dismissed a suit against Craigslist file by Cook County, Chicago. The judge found that some of the services offered were, or could be, legal. What's more, the court found that there might even be some First Amendment protections for the advertisements.

Fair Use Under Attack Again By The AP -- Or A Greedy Basterd's Lawyers Are Never Unemployed

So the Associated Press is at is again. Perhaps you may remember that last year, the AP wanted to start charging people for quotes of any length from their articles.

Apparently, not content to erode away at the Fair Use doctrine that way, the AP has announced that they will now be adding software to their online offerings to see how they are used. The monitoring software will not only, apparently, be watching to see how the contents and title of the story will be used, but also the link to the articles themselves. The AP is claiming that in order to link to the article, a licensing agreement is required.

Now this is not just going to affect use by bloggers. They are taking the position that search engines will be required to agree to a licensing agreement as well.

Isn't that nice.

I hate IP law as it has been perverted. This idea that any use, even minimal (forget "fair use"), requires them to get paid is wrong. It erodes at the public domain more than was ever intended.

How nice for this organization to do this, especially given how they started out.

Macy Update (the Landlords From Hell, Not the Chain)

Doing my weekly sweep for news on what is happening with the Kip and Nicole Macy trial, I came across two articles from the SFWeekly. Apparently, all may not be well in the utopia that is the Macy marriage.

First, they're filing for bankruptcy. This is a bummer since it means that his tenants will almost certainly not be able to recover from the alleged hell they put them through. Then again, I suppose its good since all this has punished them to the point of bankruptcy. Still... I like it when the civil case tips them over. Yeah, I'm a ghoul in that regard. Deal with it.

Second, the Macy marriage itself is rumored to be on its last legs. People are pointing to the fact that every time the duo ends up in jail, that Kip bails himself out, but leaves his wife to sit in lockup. The criminal lawyer for Nicole is denying the rumors, but then again, he would have to deny it for a variety of reasons (say better negotiating leverage in a plea deal for his client comes to mind).

All in all, nothing has really changed. The trial is still coming up. No word on the decision from the motions that were filed

More on the Kip and Nicole Macy Case.. But Few Answers

So there has been some action in the Kip and Nicole Macy case. In case you are not aware, here are some of my earlier postings. Essentially, if the allegations are true, these two give scumbag landlords a new name. Fortunately, they were arrested. Whether they will be convicted is another story.

The defense team for Mr. and Mrs. Macy brought motions to dismiss the indictment against the two. It was supposed to be heard on March 30, 2009, at the Courthouse on Bryant Street. However, I have not been able to see what happened.

Judging by the fact that I don't have any comments from the poster whom I presume is Mr. Macy, I would say that either the motion was unsuccessful, has been taken under submission by the judge after arguments, or has been continued to another date. Basically, sorry but I can't help you. Believe me I would love to tell you, because now its like a cliff hanger for me.

All I can provide you with for now is the motions brought by Kip and Nicole Macy's attorneys. Remembering, this is their argument. The DA will presumably have filed their own response. In reading through these, its interesting that what they say is that they are all but admitting to civil wrongs in trying to evade the criminal ones.

But perhaps that is just my interpretation.

A Defeat of the Pole Tax

Generally, I am against poll taxes. However, this is about pole taxes.

With the economic downturn, there has been some attempts at increasing the sin taxes. Among those being increased in some areas, are strippers. Texas passed a tax on people going to strip clubs last year. This tax was challenged and ultimately struck down in a decision by a Texas state court as "unconstitutional".

Most recently, a Albany, New York, area strip club challenged a tax assessment made on it for failure to pay sales tax on fees from cover charges and dancer fees. Nite Moves contested the taxes. With the help from lawyer , an ACLU attorney from Utah, they took their case before an administrative law judge.

After reviewing DVD's of dancers working at the club, administrative law judge Catherine Bennett, concluded "The videos depicted dance routines that incorporated acrobatic pole maneuvers, splits and other patterned repetitions,... The pole maneuvers in particular are no small feat to accomplish, and attempting such a performance without the skill and a planned routine of steps could prove dangerous." Because they met the standard, she found that the strip club's activities fell under the First Amendment and that it qualified for a "dramatic arts" tax exemption.

However, my favorite part of the decision reads as follows:

The Division's auditor had a preconceived opinion that the admissions for the door and the private couch dances were taxable, along with the beverages sold. The auditor spoke briefly with petitioner's management and observed only the layout of the business prior to its opening. No observation was made of either the stage dances or the private couch.

Essentially, because the auditor did not stay for the show, he could not accurately determine the nature of the business. Why do I think that the male auditors are going to be fighting for the opportunity now to audit New York state strips clubs?

So at least in New York for now, you won't have to worry about sales tax on your lap dances.

Gotta love legal system.

W.R. Grace Trial

Somehow I have failed to mention anything about W.R. Grace's legal troubles. For those who do not know W.R. Grace is a chemical company who has had more than a few run-ins with legal actions since it was founded more than a century ago. Perhaps its most famous case was the one chronicled in A Civil Action (book and movie) where it was eventually prosecuted and forced to pay for the clean up of chemicals in Woburn, MA.

Now that notoriety may be eclipsed with the current trial that W.R. Grace is going through. The case is United States v. W.R. Grace et al. What is interesting is that this is not a civil action. This is a criminal case. W.R. Grace and seven former executives were indicted on ten counts including wire fraud, conspiracy, knowing endangerment, and obstruction of justice.

The individual defendants in the case could face as little as 5 years and up to 70 years if convicted. W.R. Grace itself could be fined as much 280 million dollars (based on a fine of double the profits made from the wrongdoing). The amount of time would depend on how the jury finds. Of course, if the jury comes back with a not guilty verdict, then they face nothing.

The case concerns one of W.R. Grace's operations was a mine in Libby, Montana. At this location, W.R. Grace mined vermicullite asbestos. The theory is essentially that the W.R. Grace operation was run in such a way as to expose the entire town to asbestos dust. It is alleged that the mining operation is responsible for 192 asbestoes-related deaths and the cause of 375 people suffering from asbestos related diseases.

To put that in perspective, the town of Libby has a total of 2,626 people. That works out to almost 15% of the town's population suffering from an asbestos-related illness. Furthermore, given the latency for most asbestos caused illnesses, more will be reported in the coming years.

Anyways, there is a very good live-blogging effort to cover the trial. The University of Montana's School of Law and School of Journalism has students in the courtroom blogging (and twittering if you follow those). The blog can be found at Grace Case. Read it when you have the time.

Finally Some News on My Favorite Landlords

Some out there may remember Kip and Nicole Macy. They owned a rental property in San Francisco which they rented out. Of course, their version of being landlords included breaking into their apartments and stealing from them, trying to convince a city inspector to red tag their building to get rid of their tenants, calling the police to arrest at least one of their tenants claiming he was a "squatter" and cutting out support beams from underneath the floors of their tenants apartments.

Sounds like great people to be renting from.

Anyways, today a grand jury returned an indictment against Kip and Nicole Macy. Kip Macy is now being charged with six counts of stalking, four counts of burglary, two counts of false impersonation, two counts of theft, as well as counts of making threats, cutting a phone line, and receiving stolen property. Nicole Macy has been indicted with three counts, of burglary, two counts of false impersonation, an unknown number of stalking counts (perhaps six as well), as well as cutting a phone line and receiving stolen property.

And my favorite part of today's news, both of them are going back into custody because their bail bondsmen won't front the bail for them anymore. The reason? The property they put up (namely the property they were terrorizing the plaintiffs at by damaging it) has declined in value.

Almost like karma at work.

I'd wait to see what Mr. Macy has to say when he leaves an anonymous comment, but last time I was there, they did not allow inmates access to computers at the San Francisco county jail.

I almost missed this...

But heeeeeeee's baaaaaaaaack!

That's right, former Administrative Law Judge Roy Pearson has appealed his loss again. Not content with having lost decisively at the trial court and in his initial appellate date, Mr. Pearson has decided to seek an en banc hearing of the entire District of Columbia Court of Appeals. In December, a three judge panel of the D.C. Court of Appeals denied Pearson's appeal.

When he loses, and he will, I'll be sure and update you all on the status of his filing for a Writ of Certiorari with the Supreme Court. He's just crazy enough to do it.

Shame Apparently Works on Some Corporations...

But not on their insurers.

You may remember my post about Taneka Talley and the shameful way in which the insurance company is treating her death. Quick recap:

Ms. Talley was at work stocking the shelves at the Dollar Store where she was employed. A man walked in, stabbed her to death. The insurance company denied the claim against the life insurance policy claiming that it was not work related. They said it was not work related because the man who killed her was just looking for the first African-American he could find so that he could kill them.

Let's see: only reason she died was because she working where she was supposed when she was supposed to. Sounds like it was work related. Doesn't sound like a vengeful ex-lover came after her. Or that she had been knifed by a co-worker because of a person dispute. Nope, sounds liek she died only because she was at work that day.

Well, apparently, protests against the Dollar Store have had some effect. Apparently afraid that the bad publicity will hurt their sales even more, one of the company's vice-presidents, Timothy Reid, announced that "he full workers' compensation benefit permitted under California law[]" will be paid to Ms. Talley's survivor, a son who is still in junior high.

Personally, I think that is not enough. They have made this kid and his guardian (his grandmother) wait for more than two years for this death benefit. The insurer in this case is getting away with making a profit. I hope that Dollar Tree is able to turn around and sue their insurer for bad faith. Letting Specialty Risk Services, a subsidiary of The Hartford, get away with this perversion of the facts is, in my opinion, a travesty.

A $40 Million Loss (Or An Interesting Lawsuit, Part 2, or More Reasons to Hate IP Law)

Last year, in June 2007, a lawsuit was filed in U.S. District Court for the Central District of California by Deborah Novak and John Witek against Warner Bros over the movie We Are Marshall. (Here is the original post about this case.) Novak and Witek were seeking $40 million in the suit, most of it based on a theory of copyright infringement.

Yesterday, the court ordered the case dismissed after the judge granted the defendant's motion for summary judgment in the case. Novak and Witek had argued that Warner Bros, in making the movie, had lifted sequences from their earlier documentary film after the two sides could not come to an agreement. Novak and Witek's counsel argued that even though the film re-shot events which were in the public record, they did so in such a way as to make them substantially similar enough to constitute copyright infringement.

Judge Gary Allen Feess rejected this argument. As he pointed out early on in his 39 page order, copyright laws only protect only "an author’s original expression and not historical facts or events...." From there it all goes downhill for Novak and Witek's case.

Thankfully, historical facts remain uncopyrightable.

Let The Mocking Continue

Remember former Administrative Law Judge Roy Pearson from D.C.?

Perhaps you might remember his loss: a pair of pants.

Or more likely, the lawsuit he brought against the cleaners for a whopping $67.3 million (later reduced to the more reasonable demand of $54 million) for said lost pair of pants?

Well in case you missed, he went to trial on this case back in June 2007. Predictably, since the majority of his claims are, well, outrageous, he lost. Like any good lawyer, Pearson took his case to a higher authority and appealed the court's judgment.

Judging by the report of the Washington Post, it does not look like the District of Columbia Court of Appeals is any more receptive to his arguments than the trial court was. One of the panel was quoted as asking, after hearing Pearson's argument, "Where is the fraud?"

So let there be another couple of months of mocking (between 2 and 4 according to the Post).

Finally A Bit Of Sanity

Some people who have read this blog might know I normally that I really don't like intellectual property laws (short version I think they are protected vested interests rather than helping innovation). With the RIAA suits against down-loaders (real and imagined), and the extension of the copyright act (essentially to protect Disney properties), it was all making me wonder if I was going to get sued at some point for quoting a movie line.

However, a Federal judge in San Jose gave me a little hope that maybe there might be some sanity in the system. U.S. District Judge Jeremy Fogel, issued an order today that stated that prior to sending a take-down letter, a copyright holder must first determine whether the use of the work constitutes "fair use".

So what does this mean? In 1998, Congress passed the Digital Millenium Copyright Act. The basic purpose of the act was to prevent piracy. The unintended consequence has the assault on fair use. When a copyright holder finds out that their work may be used in an infringing matter on the internet, they have the ability to issue a takedown order. What this means is that anytime a copyright holder notices that someone is using any part of their work, they could send a take down order.

Which is what happened in the case before Judge Fogel.

The case started when Stephanie Lenz made a video of her 13-month old son rocking out to Prince's song "Let's Go Crazy". She put it up on YouTube. Universal Music Corp., which holds the rights to song, issued a take down order. Now, the entirety of the song that was used came to 29 seconds. YouTube, complying with the law, took it down. However, they restored it when Ms. Lenz stood up to Universal and responded and had YouTube restore the video based on the "fair use" doctrine.

However Ms. Lenz, fortunately, was not one to take Universal's action lying down. She took the offensive and filed a lawsuit against the corporation in the U.S. District Court for the Northern District of California. In her suit, she seeks declaratory and injunctive relief (meaning she is seeking a declaration of her rights, not seeking monetary damages).

Universal has taken the position that a copyright holder has no duty to consider whether the use if protected by "fair use". Essentially, any time someone uses any of their "intellectual property", they can initiate proceedings against them without first considering whether the use is legal. Or to put it simply: sue first and let the courts sort it out.

Judge Fogel denied this theory. In his order denying Universal's motion to dismiss, he wrote,

[F]air use is a lawful use of a copyright. Accordingly, in order for a copyright owner to proceed under the DMCA with “a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,” the owner must evaluate whether the material makes fair use of the copyright.
...
[I]n the majority of cases, a consideration of fair use prior to issuing a takedown notice will not be so complicated as to jeopardize a copyright owner’s ability to respond rapidly to potential infringements. The DMCA already requires copyright owners to make an initial review of the potentially infringing material prior to sending a takedown notice; indeed, it would be impossible to meet any of the requirements of Section 512(c) without doing so. A consideration of the applicability of the fair use doctrine simply is part of that initial review.
...

A good faith consideration of whether a particular use is fair use is consistent with the purpose of the statute. Requiring owners to consider fair use will help “ensure[] that the efficiency of the Internet will continue to improve and that the variety and quality of services on the Internet will expand” without compromising “the movies, music, software and literary works that are the fruit of American creative genius.

As the EFF noted, essentially the court held that copyright holders "ignore fair use at your peril!" The case continues, but the order is a first.

Hopefully it won't be the last.

NRA v. San Francisco Housing Authority

Flush from their success before the Supreme Court, the NRA has vowed to challenge gun control laws it views as violative of the Second Amendment around the country. Two of the ones which were mentioned frequently after the Supreme Court released the decision in District of Columbia v. Heller, were San Francisco and Chicago.

The suit against San Francisco was filed on Friday before the U.S. District Court for the Northern District of California.

Now, it first might be helpful to explain what the Heller decision actually says. Written by Justice Scalia, the decision essentially states that the 2nd Amendment of the U.S. Constitution is a personal right. It is not a right which is dependent on being an active member of an organized militia. The reason why, argues Justice Scalia, is that when the Amendment was written certain terms had slightly different meanings than they do now. In 1789, militia effectively meant any able-bodied (male) person who could hold a weapon and use it as part of an organized militia. (Interestingly, he also argues that the "free state" term in the Amendment refers to a free politiy instead of a political entity. While I agree with the first definition the second one seems a little bit of a stretch.)

In striking down the District of Columbia law, the Justice Scalia's majority opinion made it clear that they were not making 2nd Amendment an exception under American law, i.e. that there were no limits on it. Within the opinion, he stated that the States and Federal government could limit the rights of felons and the instance to own firearms. He also stated that reasonable time and place limitations could be placed on the keeping of firearms (District of Columbia v. Heller, (2008) slip op. 07-290 at 54.) Specifically, the opinion states,

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

So, while the right is personal, and cannot be taken away, it can be limited as to when and where the firearms may be brought. Blanket bans are unconstitutional.

Now, the NRA has brought suit against the San Francisco Housing Authority, the City and County of San Francisco, as well as other entities which help enforce San Francisco's ban on firearms. Under San Francisco's ban, passed last August, firearms are prohibited from generally everywhere in the city that is not private property (including public buildings of the city and county, parks, and public housing operated by SFHA), unless you fall into one of the exceptions. These exceptions including police officers, military personnel, private guards, and "honorably retired Federal officers and agents of Federal law enforcement". It also curtails sales of weapons and ammunition except for a gun club/firearms range.

What the law does not do is ban ownership of firearms by private citizens in their own homes. It does not criminalize them for transporting their own weapons on city streets or sidewalks.

Now, although the gun advocates have won a significant victory with the Heller decision, that does not mean that suddenly San Francisco's gun ban on county property going to go away. There are significant differences between the Heller situation and the law in San Francisco. First off, the D.C. law banned all weapons everywhere in the District of Columbia unless you had a special permit that had to be renewed every year. Furthermore, it mandated that for those who were able to obtain the special permit, the weapon must be rendered inoperable or disabled by use of a trigger guard.

San Francisco's law does neither of these things. It only permits firearms on city and county property.

Now, the complaint was filed on behalf of NRA members in the county, including named plaintiff Guy Montag Doe (a pseudonym) for a man who lives in an SFHA unit (and I wonder now, have I ever represented this guy?) who keeps the weapon for protection. The argument goes that Mr. Doe is being denied his right to keep a firearm for self-defense against

particularly against perpetrators of sexual orientation-based hate crimes, i.e. physical attacks on persons perceived as homosexuals, motivated solely by antagonism to them because of their perceived sexual orientation.

(side note... did anyone tell this attorney who picked this guy as the named plaintiff that this is San Francisco? Yes I know hate crimes and discrimination occur, but...)

Looking at the Heller decision, a lot of the law should withstand challenge. It is unlikely that anyone in the U.S. N.D.CA is going to completely strike down this law (or the 9th Circuit). The ban on weapons in county buildings, including schools, will probably remain in effect. The banin those places can be supported by the clear wording of the Heller decision It may be closer as far as weapons in plaza's, parks, and the like, but I think that the courts will probably uphold the ban there as well.

The question, at least in my mind, is how the court is going to deal with guns in public housing. On the one hand, a lot of people live there. On the other, they are not required to live there. Now, although the argument could have been made that gun owners did not have to live in the District of Columbia, that situation was different. Under that law in Heller, nowhere in the District of Columbia could a person own a firearm, even in their own private homes. Under the San Francisco law, the right is not curtailed in private property, only on government property.

Furthermore, there is a host of case law which acknowledges that if you accept public benefits you have to comply with the rules of the benefit programs in order to retain those benefits. People receiving SSDI/SSI have to spend down their assets or forego other types of employment if they want to retain their benefits. People who are receiving aid under Section 8 have to comply with the programs guidelines and re-certify economically periodically. Arguably, both require a person to forgoe property rights that they might have had by earning additional money (i.e. a Fifth Amendment taking does not occur).

While I don't have brief ready to go to court on this one, I am sure some well-qualified attorney over at the San Francisco City Attorney's office is already putting together the case law to write one up on this issue. Basically, I think the NRA is not going to get the law struck down like they think they will.

Isn't It Ironic

As a rule, I really, really dislike obscenity trials. We live in a country where the freedom of speech is deemed to be one of the fundamental freedoms (unless of course you happen to be someone who believes that "free speech zones" are constitutional). So when talking about criminalizing speech as "obscene" then, in my opinion, in most cases you are talking about supporting censorship.

Which is why today's news is a bit ironic. In Los Angeles today, a trial has started. In it, the Department of Justice is prosecuting Ira Isaacs for obscenity. Now, Ira Isaacs is not some misguided artist, or someone trying to make a statement with their art. He is a porn producer. Among the titles he is being prosecuted for, include such titles as "Hollywood Scat Amateurs No 7" and "Gang Bang Horse (Pony Sex Game)". (A strong advisory is out not to Google search for any of Mr. Isaacs' videos).

Now, whether or not these videos are obscene is not something I am going to comment on. Whether they should be criminalize, is something else. Regulating speech is something that is a slippery slope. Would I want to watch any of the titles I have heard of Mr. Isaacs producing? Almost certainly not. Should he be criminally penalized for his speech (as opposed to perhaps animal cruelty or health and safety regulations)? I think not.

By the way, the test of whether something is obscene, as defined by the U.S. Supreme Court in Miller v. California, is whether (1) the average person, applying contemporary community standards, would find that the material as a whole appeals to the prurient interest; (2) the material depicts or describes sexual conduct in a patently offensive way; and (3) the material, as a whole, lacks serious literary, artistic, political or scientific value.

In the past, trials have upheld the artistic value of photographs shown depicting homosexual sex, sadomasochistic acts, "filthy" or profane language. Some literary works which are now considered to be classics, such as Ulysses, Lady Chatterly's Lover, and Last Exit to Brooklyn, have all been attacked as obscene in various court systems. After long periods, have eventually been cleared of being criminally obscene.

Alright, now for the ironic bit. At the same time that the trial judge is warning the jurors about the graphic nature of the images which they will be shown as part of the evidence, another story has come across the wire. Apparently, the chief judge of the Ninth Circuit Court of Appeals has had to pull down a website. A website which contained "a video of a man cavorting with a sexually aroused farm animal[.]" Judge Kozinski has since restricted access to his website. Ultimately, if there is a conviction in the Issacs case, Kozinski is the Chief Judge of the court of appeals which will hear the appeal.

Correction and update at 2122:

I made a mistake earlier. Apparently Judge Kozinski is the trial judge. Although Judge Kozinski is the Chief Judge for the Ninth Circuit (making him an appellate judge), it appears that there is a program where Ninth Circuit judges are hearing trial cases in criminal matters. It appears that Kozinski has offered to recuse himself in this case. Above the Law apparently has Judge Kozinski's explanation about how this all happened.

Is This Really The Law Suit You Want To Bring?

I am wondering what was going through this guys mind. He is married. He apparently has a good job. May even have a kid. And he wants to file a lawsuit for this:

Getting a lap dance.

I wonder if his attorney has had him really think through what the line of question may or may not include.

Apparently Mr. Chang was getting a lap dance at Manhattan's Hot Lap Dance Club (NSFW link here). While the unnamed dancer was working on his lap (minds out of the gutter please) she apparently did a maneuver which caused her to kick him in the head in some way with her heel.

Now, I suppose he is filing suit against the club on a premises liability theory. But I would guess he is probably also going to have to sue the stripper herself, since she may be an independent contractor.

I can just imagine the deposition of Chang, the dancer, an the club owner. I just can not think of way of putting it up here and not coming off completely crass. But in the end, if this goes to trial, Mr. Chang is going to have to stand up before a bunch of people (as many as 12 jurors, the judge, the other court room personnel and possibly a bunch of curious on lookers) and talk about going to a strip club and then later claiming he got more than he paid for (minds out of the gutter!). For now he is getting the benefit of the Spitzer fall-out that his employers might not notice whats going on...

Of course, this all brings to my mind visiting the locus in quo and how well that worked out for my favorite fictional barrister's some-times friend, Claude Erskine-Browne.