This Week in WTF, July 31, 2015

– In some circles, that’s a valuable natural resource: Residents and business owners in La Jolla, a San Diego neighborhood perhaps best described as “tony,” filed a lawsuit in San Diego County Superior Court in late 2013 against the city and its interim mayor, demanding that they clean up the apparently excess amounts of sea lion and cormorant poop currently stanking up La Jolla Cove:

The plaintiffs, Citizens For Odor Nuisance Abatement, also want the city to remove a fence that limits public access to the cove.

According the suit, San Diego has “exclusive dominion, control and responsibility for the maintenance of the cliffs in and around the La Jolla Cove and is responsible for keeping the area free of noxious odors.”

The nonprofit group, which was created earlier this year for the express purpose of eliminating annoying odors, claims the city “at some point in time and without public notice, erected a fence along the sidewalk that runs along La Jolla Cove, preventing the public from accessing the rocks. The fence was built without an Environmental Impact Report (EIR) and is in violation of the Local Coastal Plan (LCP), which requires maximizing coastal access.”

The fence allegedly prevented access to the rocks and created a “buildup of excrement from sea lions and cormorant birds, causing noxious odors resulting in illness to the citizens of San Diego and others who visit this area.”

"La Jolla Cove view" by Dirk Hansen (Own work) [CC BY-SA 3.0 (], via Wikimedia Commons + "Sea lion head" by Alexdi at English Wikipedia [CC BY 3.0 (], via Wikimedia Commons + "Great Cormorant RWD2" by DickDaniels ( (Own work) [CC BY-SA 3.0 ( or GFDL (], via Wikimedia Commons + "Mladenovo, Guano hill at the bottom of the steeple" by Author:Sors bona (Own work) [Public domain], via Wikimedia Commons = "Free Illustration: Gavel, Hammer, Judge, Justice - Free Image on Pixabay - 568417" by Mdesigns [Public domain, CC0 1.0 (], via Pixabay

Continue reading


The Cleveland Police Department’s Defense in the Tamir Rice Lawsuit

Last Friday, the City of Cleveland answered the wrongful death/civil rights lawsuit filed by Tamir Rice’s family, and part of its defense has caused much anger and consternation, especially to non-lawyers. I find just about everything about the Cleveland PD’s actions in this case—and those of their supporters—to be infuriating, but from my perspective as a lawyer, the defense outlined in their answer seemed like pretty standard legal language to me:

The city, in its response, wrote that Tamir’s death on Nov. 22 and all of the injuries his family claims in the suit “were directly and proximately caused by their own acts, not this Defendant.” It also says that the 12-year-old’s shooting death was caused “by the failure … to exercise due care to avoid injury.”

The response does not explain these defenses in more detail, though 20 defenses are listed in all, including another one that says Tamir died because of “the conduct of individuals or entities other than Defendant.”

By Rob Sinclair (Flickr: Cleveland by night) [CC BY-SA 2.0 (], via Wikimedia Commons

If you read the city’s answer, linked in the blockquote above (and also here), you’ll see that the quoted portions come from the city’s “affirmative defenses” on page 38, which read as follows: Continue reading


Taking the Fight Where It Belongs on Reproductive Rights and Ideologically-Based Medical Decisions (UPDATED)

Four freedoms human rightsThe problem many women have with access to accurate, professional reproductive health care is not because of the doctors, other hospital staff, or even annoying protesters, but rather the administrators and ideologues that employ the medical professionals. It is therefore refreshing to see some pushback on that front.

The ACLU is suing the United States Conference of Catholic Bishops over its hospital directives that allegedly led a Michigan hospital to give inaccurate medical information to a woman in order to avoid discussing abortion with her. The woman, according to the ACLU, was only in the 18th week of pregnancy when her water broke. The hospital kept sending her home, even though she was in terrible pain, the pregnancy had almost no chance of surviving, and the delay in treating her put her at ever-greater risk. Note that the lawsuit is not against the hospital or the doctors who allegedly denied her adequate care, but rather the religious organization that pulls the hospital’s strings.

You can have whatever religious beliefs you want, but you cannot force those beliefs onto others, especially when their life is at risk. Seriously, what is so hard to understand about that???

Several organizations have filed a complaint against the government of El Salvador with the Inter-American Human Rights Commission, claiming that the government’s refusal to allow a woman to undergo a life-saving abortion violated her human rights. The woman, identified as Beatriz, was 26 weeks pregnant with a “nonviable, anencephalic fetus.” Her prior health problems made it unlikely that she could survive the pregnancy, according to her doctors, but the Supreme Court of El Salvador denied her request for an emergency abortion in May 2013.

In June, the court reportedly allowed her doctors to perform an “emergency cesarian” that was pretty much a glorified hysterectomy. It saved her life, but the 22 year-old woman obviously will not be having any more children. All of this was apparently in the cause of maintaining the country’s absolute ban on abortion because of reasons.

Feminist organizations assert that Beatriz’s story reflects the consequences of the absolute criminalization of abortion and the institutional violence that is exercised against Salvadoran girls, adolescents, and adult women. According to data gathered by the Citizen Group for the Decriminalization of Abortion, between 2000 and 2011, a total of 129 women in El Salvador have been charged with abortion or aggravated homicide, with sentences ranging between two and 40 years in prison. Currently there are at least 30 women serving prison such sentences, the majority having suffered the loss of their pregnancies for various obstetric complications.

I don’t get it.

UPDATE (12/10/2013): Astute reader Kathleen directed my attention to a 1987 court case, In re A.C., 573 A.2d 1235 (D.C. Cir. 1990), in which the USCCB was one of only two organizations (along with Americans United for Life) to defend a hospital’s decision to perform a C-section on a terminally-ill cancer patient without her consent. The fetus survived about two hours after the procedure, and the mother survived a few more days. The D.C. Circuit Court of Appeals vacated the lower court ruling that allowed the procedure, finding that the woman had the right to make decisions regarding her own and the fetus’ health care. A report from the ACLU written ten years after oral arguments in the case recounted:

When an attorney for the hospital argued that it was appropriate to sacrifice a dying woman for her fetus, one judge replied incredulously, “Are you urging this court to find that you can handcuff a woman to a bed and force her to give birth?” Instead, the court resoundingly concluded that in virtually all circumstances a woman — not doctors or a judge — should make medical decisions on behalf of herself and her fetus. The opinion emphasized an argument made in the American Public Health Association’s friend-of-the court brief, that court-ordered intervention “drives women at high risk of complications during pregnancy and childbirth out of the health care system to avoid coerced treatment.”

Photo credit: By dbking (Roosevelt’s “Four Freedoms”) [CC-BY-SA-2.0], via Wikimedia Commons.


This Must Violate HIPAA Somehow

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It was a party to reme—wait, what? (Via

A Chicago  student is suing a doctor, hospital, and medical school after the doctor allegedly took pictures of her in the hospital, where she had been admitted for overindulgence in alcohol, and posted them on Facebook. The student was reportedly taken to the hospital by ambulance at about 3:00 a.m. on June 13, 2013. The defendant, who was not the student’s treating physician, allegedly looked at her medical records around noon that day, using his medical ID card to gain access to the files. According to Courthouse News Service:

It continues: “At or around 4 p.m., on June 13, 2013, [defendant] came down to the ER again and commenced taking pictures of plaintiff while she was on the hospital bed, crying, and attached to an IV.

“[Defendant] was seen by hospital security in the hospital taking the pictures and was asked to delete them immediately, which he refused to do.

“[Defendant] decided to public said photographs on the Internet through Facebook and Instagram online sharing programs.

“[Defendant] attached statements of commentary describing [plaintiff]’s condition in those photographs. Continue reading


“Social Welfare,” Loosely Defined

501c4 by Hollywata [CC BY-ND 2.0], on FlickrThe Tea Party might have been right about the IRS improperly applying the law, just not in the way they think. As opposed to the discredited claim-that-will-not-die that the IRS targeted Tea Party groups, and only Tea Party groups, a new lawsuit alleges that the agency is not correctly applying the requirements of the Internal Revenue Code for “social welfare organizations,” known as 501(c)(4) groups. Van Hollen, et al v. Internal Revenue Service, et al, No. 1:13-cv-01276, complaint (D.D.C., Aug. 21, 2013) (I love using legal citation forms that probably aren’t quite right, on the off chance that someone on a law review reads this and gets all eye-twitchy.)

Here’s the actual statute defining a 501(c)(4) tax-exempt organization:

(4)(A) Civic leagues or organizations not organized for profit but operated exclusively for the promotion of social welfare, or local associations of employees, the membership of which is limited to the employees of a designated person or persons in a particular municipality, and the net earnings of which are devoted exclusively to charitable, educational, or recreational purposes.

(B) Subparagraph (A) shall not apply to an entity unless no part of the net earnings of such entity inures to the benefit of any private shareholder or individual.

26 U.S.C. § 501(c)(4) (emphasis added).

The regulation that the IRS uses to interpret and enforce that statute specifically states that “direct or indirect participation or intervention in political campaigns” for or against a candidate does not constitute “the promotion of social welfare.” 26 C.F.R. § 1.501(c)(4)-1(a)(2)(ii).

Here’s how the regulation defines “promotion of social welfare”: Continue reading


A Settlement Proposal for BP

By NASA [Public domain], via Wikimedia Commons

On the plus side, scenes like this would probably totally scare off alien invaders.

BP has filed suit against the federal government over the EPA’s decision to suspend it from new federal contracts, after the company pleaded guilty to manslaughter and obstruction of justice (h/t Jennifer). The company now alleges that the EPA’s continued ban is “an abuse of discretion.”

The Deepwater Horizon incident was a clusterfuck of historic proportions, but those guilty pleas only resulted in a fine, plus probation and something called “independent monitoring.” Of course, the fine was for $4 billion, which seems like a large chunk of change to me and (I assume) you, but what is that to BP? As a result of the fallout from Deepwater Horizon, BP’s 2012 profits were “halved,” according to the Telegraph, to $12 billion.

In other words, the criminal penalty paid by BP for the deaths of eleven people, an 87-day ocean-floor oil gusher, and who-knows-how-much resulting damage, was one-third of their profit from 2012. Not their revenue, their profit. And if the Telegraph is right, it is only one-sixth of the profit they were expecting. If an individual pleaded guilty to killing eleven people and poisoning a large portion of ocean, that person would likely be spending some time in a very small room. That person certainly would not get any traction with a lawsuit against the government for refusing to hire them. Since corporations are supposed to be people, what gives?

I have an idea for a settlement that the EPA might propose, one that is undoubtedly fair based on BP’s own assurances: The EPA will lift the ban on BP contracts if all BP senior executives and directors personally perform community service by assisting with cleanup along the Gulf coast, specifically including time spent in the water with the “cleanup” chemicals the company used, that it assured everyone was safe. BP said that Corexit was no more dangerous than dish soap, so it shouldn’t be a big deal for the BP higher-ups to get at least elbow-deep in the stuff, right?

Of course, I know the EPA would never make that sort of offer, and I definitely know BP would never go for it. I’d just love to hear how BP tried to weasel out of it.

Photo credit: By NASA [Public domain], via Wikimedia Commons.


A PR Firm by Any Other Name Would Not Smell as Sweet

Somehow, the theft of Rory’s name was as unforgivable as stealing his skin; or so her grief told her. A skin was nothing. Pigs had skins; snakes had skins. They were knitted of dead cells, shed and grown and shed again. But a name? That was a spell, which summoned memories. She would not let Frank usurp it.
— Clive Barker, The Hellbound Heart, page 156, Harper Fiction, 1986

507068_88733155Names have a peculiar sort of power. They convey not only basic identity, but a whole range of associations. Our names identify us as individuals, but also demonstrate our family relationships and the level of formality we expect from others. Names evoke not only the concept of a person, but memories of that person, thoughts, and emotions. In business, a name can become a brand, something that has economic value in its own right. Our names represent us as four-dimensional beings, identifying who we are, who we have been, and who we may yet be. One’s name may very well be one’s most precious asset.

Unless, of course, you sign away the rights to your own name.

That’s what Brian Tierney allegedly did when he sold Tierney Communications in 1998, according to the aptly-named lawsuit Tierney v. Tierney, filed in a Philadelphia court in November 2012. The lawsuit, brought by Tierney Communications’ owner, Interpublic Group of Companies, alleges that Tierney’s new business, Brian Communications Group, misuses Tierney’s own name in a way that creates confusion. The new company allegedly uses the phrase “A Brian Tierney Company” in its marketing, which Intergroup doesn’t much like.

As odd as it may seem to lack the right to use your own name, if that’s what Brian Tierney signed, then that’s how it is. According to, the contract stated that he threw in the rights to use his name in connection with a public-relations or similar business “in consideration of the considerable monies paid to him.” So, you know, they paid for it. Freedom of contract and all that.

This was a plot point, actually, on the third-season finale of Treme, where chef Janette Desautel hosts a charity event using her own name, which happens to also be the name of the restaurant she co-owns with a douchey businessman. Her business partner is furious that she used a banner with a modification of the restaurant’s name, and reminds her that he owns the right to use the name (her name) with or without her. This is why you read the fine print, kids.

(h/t to Antonin Pribetic for bringing the story to my attention)

Photo credit: “Badge” by Gastonmag on stock.xchng.


Thou Shalt Not Speak Ill of Lean Finely-Textured Beef

Beef Products, Inc. (or “BPI”) is mad. You may have never heard of BPI, but you have probably heard of their product, lean finely-textured beef (“LFTB”). Of late, LFTB has gained some prominence in the public eye under the slightly more-descriptive name “pink slime.”

BPI is not happy that people in the media are calling their product “pink slime,” and they believe that it is hurting their business. They are therefore doing what we in this country always do: suing.

[BPI] has just filed a defamation (“veggie libel”) lawsuit for $1.2 billion (!) against an amazing cast of characters:

  • ABC News (owned by Disney)
  • TV news anchor Diane Sawyer
  • ABC correspondent Jim Avila
  • ABC correspondent David Kerley
  • Gerald Zirnstein , former USDA employee who invented the term “pink slime”
  • Carl Custer, former USDA employee
  • Kit Foshee, whistleblower former BPI employee

From what I understand, the concern is not just that the concept of “pink slime” is kind of gross. People have raised health concerns as well, due to questions of ammonia content or something. BPI disputes that the process that involves ammonia poses any danger to consumers.

I get that we cannot expect, as end users in a vast, complex society, to receive our consumer goods in anything much resembling their natural state. We’ve probably all been to Subway or Blimpie and seen the giant cylindrical loaves of turkey (just like the Pilgrims ate!) Continue reading


This Week in WTF, August 24, 2012


Definitely not baby food. I now profusely apologize for any mockery and ask that you please not lacerate me.

– A recent recall announcement from the U.S. Consumer Product Safety Commission reads: “Gerber Recalls Machetes Due to Laceration Hazard.” As it turns out, this is not Gerber, the well-known manufacturer of baby food. It is Gerber Legendary Blades, of Portland, Oregon, the company that makes machetes that might cut you. I’m just glad they caught that in time. (To be fair, it sounds like a pretty serious potential hazard: “A weakness in the area where the handle meets the blade can cause the handle or the blade to break during use, posing a laceration hazard.”)

– A strip club owner in Tampa, Florida does not expect the upcoming Republican National Convention, less than six miles from his club, to bring him much business. Time will tell.

– Speaking of Tampa, Rush Limbaugh thinks that President Obama instructed the National Hurricane Center to announce the risk of Tropical Storm Isaac possibly hitting Tampa around the time of the convention. He also said something about turning the convention into a FEMA camp, and then I think an Alien larva burst out of his chest and offered a more sensible take on the news. (NOTE: I might have imagined that last part. The comments about the tropical storm actually happened.)

– A reporter, formerly of the Houston Chronicle, is complaining to the Equal Employment Opportunity Commission of sex discrimination. The newspaper fired her in March, allegedly because she neglected to tell them of her other job as a stripper. In what I am certain is a total coincidence, Gloria Allred represents her.

– A casino in Atlantic City, New Jersey neglected to check a shipment of playing cards to confirm that they had been shuffled. They had not been shuffled. Gamblers caught on and won $1.5 million, give or take. The casino is suing the card company, but they’re also suing the winning gamblers for violating the “house always wins” clause.

– A so-bad-he’s-really-bad comedian launches into an absurdly racist routine in front of a young Asian couple and gets (justifiably) knocked out:

Photo credit: ‘Gerber Machete’ by Dana60Cummins (Own work) [CC-BY-SA-3.0], via Wikimedia Commons.