U. S. District Court Judge Rules Flipping the Bird Is Free Speech.
A motorist who flipped off a police officer and received a disorderly conduct ticket has won a ruling that his gesture was protected by the First Amendment.
David Hackbart first gave the bird to a motorist who blocked his parking space, and then to a voice telling him to stop—which turned out to be that of an officer, according to the opinion (PDF posted by the Wall Street Journal) by U.S. District Judge David Cercone of Pittsburgh.
"Hackbart, in this instance, was expressing his frustration and anger when he gestured with his middle finger to both the driver behind him and to [the officer]," Cercone wrote. "Both gestures are protected expressions under the First Amendment, unless they fall within a narrowly limited category of unprotected speech such as obscene speech or fighting words."
Cercone granted Hackbart's motion for summary judgment and allowed the civil rights lawsuit to proceed to trial on related issues, according to the Wall Street Journal Law Blog. Hackbart is claiming the incident caused him physical pain and suffering, emotional trauma, humiliation and distress, according to Legal Blog Watch, citing a story in the Pittsburgh Tribune-Review.
Sunday, March 29, 2009
Judge Rules Pole Dancing Is Art .
Judge Rules Pole Dancing Is Art Qualifying for Sales Tax Exemption
After reviewing DVDs of exotic dancers, an administrative law judge has determined that pole dancing is "no small feat"--and it's also art qualifying for a tax exemption.
The judge, Catherine Bennett, ruled the Albany-area club Nite Moves was entitled to a “dramatic arts” tax exemption and did not have to pay $129,000 in sales taxes, the New York Law Journal reports. The state of New York had contended it was owed taxes on cover charges and dancer fees paid between 2002 and 2005.
Judge Bennett ruled after hearing from a University of Maryland dance scholar and watching videos of dance routines at the club, the story said.
"The videos depicted dance routines that incorporated acrobatic pole maneuvers, splits and other patterned repetitions," Bennett said. "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."
"The fact someone may believe that this entertainment is not appropriate for any audience is not the issue," she said.
Nite Moves' lawyer, Andrew McCullough, is a Mormon and a board member of the Utah chapter of the American Civil Liberties Union. He told the New York Law Journal he sees similarities between objections to strip clubs and new Mormon temples.
“They say, 'It's lights, it's traffic, it's noise,' ” he said. “But what they really mean is, 'We don't like your kind.' ”
After reviewing DVDs of exotic dancers, an administrative law judge has determined that pole dancing is "no small feat"--and it's also art qualifying for a tax exemption.
The judge, Catherine Bennett, ruled the Albany-area club Nite Moves was entitled to a “dramatic arts” tax exemption and did not have to pay $129,000 in sales taxes, the New York Law Journal reports. The state of New York had contended it was owed taxes on cover charges and dancer fees paid between 2002 and 2005.
Judge Bennett ruled after hearing from a University of Maryland dance scholar and watching videos of dance routines at the club, the story said.
"The videos depicted dance routines that incorporated acrobatic pole maneuvers, splits and other patterned repetitions," Bennett said. "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."
"The fact someone may believe that this entertainment is not appropriate for any audience is not the issue," she said.
Nite Moves' lawyer, Andrew McCullough, is a Mormon and a board member of the Utah chapter of the American Civil Liberties Union. He told the New York Law Journal he sees similarities between objections to strip clubs and new Mormon temples.
“They say, 'It's lights, it's traffic, it's noise,' ” he said. “But what they really mean is, 'We don't like your kind.' ”
Friday, March 20, 2009
CHANGE Is Coming To Capital Punishment
(3/18/09) New Mexico Gov. Bill Richardson, who has supported capital punishment, signed legislation to repeal New Mexico's death penalty, calling it the "most difficult decision in my political life."
The new law replaces lethal injection with a sentence of life in prison without the possibility of parole. The repeal takes effect on July 1, and applies only to crimes committed after that date.
"Regardless of my personal opinion about the death penalty, I do not have confidence in the criminal justice system as it currently operates to be the final arbiter when it comes to who lives and who dies for their crime," Richardson said.
Europe's human rights watchdog hailed the decision as "a victory for civilization." The American Civil Liberties Union called it "a historic step and a clear sign that the United States continues to make significant progress toward eradicating capital punishment once and for all."
But the New Mexico Sheriffs' and Police Association opposed repeal, saying capital punishment deters violence against police officers, jailers and prison guards. District attorneys also opposed the legislation, arguing that the death penalty was a useful prosecutorial tool.
"I'm worried for our law enforcement officers who are out there courageously doing their job every night. We've lost a layer of protection and it's a sad day in New Mexico," Bernalillo County Sheriff Darren White said.
New Mexico becomes only the second state after New Jersey to ban executions since the U.S. Supreme Court reinstated the death penalty in 1976. Fourteen other states do not impose capital punishment.
"The tide is turning and the end of this cruel and inhuman form of punishment in the United States is only a matter of time," said Terry Davis, the secretary general of the 47-nation Council of Europe.
All European nations have banned or suspended capital punishment.
The repeal passed the state Senate by a 24-18 vote and was approved by the House a month earlier. With Richardson facing a midnight deadline to decide whether to sign or veto the legislation, he said he made the decision in the late afternoon after going to the state penitentiary.
There he saw the death chamber and visited the maximum security unit where those sentenced to life-without-parole could be housed.
"My conclusion was those cells are something that may be worse than death," the Democratic governor said at a news conference in the Capitol. "I believe this is a just punishment."
The governor also caught a glimpse of one of the two men on death row, Robert Fry. The repeal doesn't affect the death sentences of Fry or the other inmate, Timothy Allen, and Richardson said he wouldn't commute those sentences.
Richardson said he has long believed — and still does — that the death penalty was a "just punishment" in rare cases for the worst crimes. But he said he decided to sign the repeal legislation because of flaws in how the death penalty was applied.
"More than 130 death row inmates have been exonerated in the past 10 years in this country, including four New Mexicans — a fact I cannot ignore," he said.
"Even with advances in DNA and other forensic evidence technologies, we can't be 100 percent sure that only the truly guilty are convicted of capital crimes."
Currently, New Mexico allows for the death penalty for certain murders, including killing a child, a law enforcement or correctional officer and a witness to a crime. New Mexico has executed one person since 1960.
The governor solicited input over the weekend from state residents. He said he got to 12,000 responses by phone, e-mail and visits, with more than three-fourths in favor of repeal.
"It was never popular in New Mexico," said Patrick Tyrell, a social worker and longtime lobbyist for repeal whose brother-in-law was murdered in 1984.
Roman Catholic Bishop Ricardo Ramirez of the Diocese of Las Cruces, said the governor "has made New Mexico a leader in turning away from the death penalty with all its moral problems and issues of fairness and justice."
A former congressman and member of President Bill Clinton's cabinet, Richardson said he was disturbed that death rows contain so many minorities. And, from a foreign policy perspective, the death penalty "did not seem to me to be good moral leadership and good foreign policy."
"This is a milestone that will make other states stand up and take notice," said Larry Cox, executive director, Amnesty International USA.
In Montana, a proposed ban has cleared the Senate and is pending in the House. In Kansas, a bill failed to clear the Senate this week.
There he saw the death chamber and visited the maximum security unit where those sentenced to life-without-parole could be housed.
"My conclusion was those cells are something that may be worse than death," the Democratic governor said at a news conference in the Capitol. "I believe this is a just punishment."
The governor also caught a glimpse of one of the two men on death row, Robert Fry. The repeal doesn't affect the death sentences of Fry or the other inmate, Timothy Allen, and Richardson said he wouldn't commute those sentences.
Richardson said he has long believed — and still does — that the death penalty was a "just punishment" in rare cases for the worst crimes. But he said he decided to sign the repeal legislation because of flaws in how the death penalty was applied.
"More than 130 death row inmates have been exonerated in the past 10 years in this country, including four New Mexicans — a fact I cannot ignore," he said.
"Even with advances in DNA and other forensic evidence technologies, we can't be 100 percent sure that only the truly guilty are convicted of capital crimes."
Currently, New Mexico allows for the death penalty for certain murders, including killing a child, a law enforcement or correctional officer and a witness to a crime. New Mexico has executed one person since 1960.
The governor solicited input over the weekend from state residents. He said he got to 12,000 responses by phone, e-mail and visits, with more than three-fourths in favor of repeal.
"It was never popular in New Mexico," said Patrick Tyrell, a social worker and longtime lobbyist for repeal whose brother-in-law was murdered in 1984.
Roman Catholic Bishop Ricardo Ramirez of the Diocese of Las Cruces, said the governor "has made New Mexico a leader in turning away from the death penalty with all its moral problems and issues of fairness and justice."
A former congressman and member of President Bill Clinton's cabinet, Richardson said he was disturbed that death rows contain so many minorities. And, from a foreign policy perspective, the death penalty "did not seem to me to be good moral leadership and good foreign policy."
"This is a milestone that will make other states stand up and take notice," said Larry Cox, executive director, Amnesty International USA.
In Montana, a proposed ban has cleared the Senate and is pending in the House. In Kansas, a bill failed to clear the Senate this week.
Thursday, March 5, 2009
Federal Judge Reverses Conviction Of Terrorist Supporter.
NEW HAVEN, Conn. – U.S. District Judge Mark Kravitz threw out one conviction against a former Navy sailor accused of passing along information about ship movements, dealing a post-mortem blow to a Bush administration that had praised the case as a success.
On 4 March Judge Mark Kravitz overturned last year's conviction of Hassan Abu-Jihaad, of Phoenix, on a charge of providing material support to terrorists, citing the language of the law. He upheld his conviction for disclosing classified national defense information.
Abu-Jihaad was a Naval signalman aboard the USS Benfold. He was accused of passing along information including the makeup of his Navy battle group and a drawing of the formation the group would use to pass through the dangerous Strait of Hormuz in the Persian Gulf in April 2001.
The ship was not attacked.
Judge Kravitz said that Abu-Jihaad received a fair trial and denied a motion for a new trial. But he said he was overturning one of the convictions "for reasons largely related to the language" of the law.
To convict Abu-Jihaad of providing material support to terrorists, the jury had to find that he provided personnel or physical assets. But Judge Kravitz said there was no evidence that would allow the jury to conclude Abu-Jihaad provided personnel or willfully caused the battle group document to be placed on a computer floppy disc, which could be considered a physical asset.
But in upholding the other charge, the judge said Abu-Jihaad had motive, citing his praise of the attack on the USS Cole as a "martrydom operation," that he had access to the secret information and that he was in frequent communication with the suspected terrorism supporters.
"This was not an open and shut case," Judge Kravitz wrote. "In many ways, it was a difficult case for the government to prove."
Dan LaBelle, Abu-Jihaad's attorney, said the ruling pleased him. "It's very thorough and thoughtful," he said.
Abu-Jihaad's conviction was hailed last year by top national security officials and federal investigators as a model of cooperation among government agencies. Prosecutors say they are reviewing the latest ruling.
Abu-Jihaad, who was honorably discharged in 2002, faced up to 10 years in prison on each count. He sought a new trial in October, saying prosecutors lacked evidence and inflamed the jury by playing videos he bought that promoted violent jihad, or holy war.
Prosecutors say investigators discovered files on a computer disk recovered from a suspected terrorist supporter's home in London that included the ship movements, as well as the number and type of personnel on each ship and the ships' capabilities.
Abu-Jihaad was charged in the same case that led to the 2004 arrest of Babar Ahmad, a British computer specialist accused of running Web sites to raise money, appeal for fighters and provide equipment such as gas masks and night vision goggles to terrorists.
Ahmad, who lived with his parents, where the computer file was allegedly found, and was arrested in London, is to be extradited to the U.S.
On 4 March Judge Mark Kravitz overturned last year's conviction of Hassan Abu-Jihaad, of Phoenix, on a charge of providing material support to terrorists, citing the language of the law. He upheld his conviction for disclosing classified national defense information.
Abu-Jihaad was a Naval signalman aboard the USS Benfold. He was accused of passing along information including the makeup of his Navy battle group and a drawing of the formation the group would use to pass through the dangerous Strait of Hormuz in the Persian Gulf in April 2001.
The ship was not attacked.
Judge Kravitz said that Abu-Jihaad received a fair trial and denied a motion for a new trial. But he said he was overturning one of the convictions "for reasons largely related to the language" of the law.
To convict Abu-Jihaad of providing material support to terrorists, the jury had to find that he provided personnel or physical assets. But Judge Kravitz said there was no evidence that would allow the jury to conclude Abu-Jihaad provided personnel or willfully caused the battle group document to be placed on a computer floppy disc, which could be considered a physical asset.
But in upholding the other charge, the judge said Abu-Jihaad had motive, citing his praise of the attack on the USS Cole as a "martrydom operation," that he had access to the secret information and that he was in frequent communication with the suspected terrorism supporters.
"This was not an open and shut case," Judge Kravitz wrote. "In many ways, it was a difficult case for the government to prove."
Dan LaBelle, Abu-Jihaad's attorney, said the ruling pleased him. "It's very thorough and thoughtful," he said.
Abu-Jihaad's conviction was hailed last year by top national security officials and federal investigators as a model of cooperation among government agencies. Prosecutors say they are reviewing the latest ruling.
Abu-Jihaad, who was honorably discharged in 2002, faced up to 10 years in prison on each count. He sought a new trial in October, saying prosecutors lacked evidence and inflamed the jury by playing videos he bought that promoted violent jihad, or holy war.
Prosecutors say investigators discovered files on a computer disk recovered from a suspected terrorist supporter's home in London that included the ship movements, as well as the number and type of personnel on each ship and the ships' capabilities.
Abu-Jihaad was charged in the same case that led to the 2004 arrest of Babar Ahmad, a British computer specialist accused of running Web sites to raise money, appeal for fighters and provide equipment such as gas masks and night vision goggles to terrorists.
Ahmad, who lived with his parents, where the computer file was allegedly found, and was arrested in London, is to be extradited to the U.S.
Man Killed After Attacking Judge In Court
FRESNO, Calif. – David Paradiso, 28, accused of killing his girlfriend was shot to death in a Stockton courtroom 4 March after he attacked Judge Cinda Fox, the judge presiding over his murder trial.
Paradiso was shot by a police detective after he left the witness stand and began attacking San Joaquin County Superior Court Judge Cinda Fox during a break in proceedings, said Dave Konecny, a spokesman for the sheriff's department.
Paradiso took the stand to testify around 2 p.m. and was quickly asked by prosecutors why he killed his girlfriend Eileen Pelt.
He responded: "Cause she deserved to die."
Paradiso's mother, Debra, stood up and started yelling, leading the judge to call a recess. As jurors filed out, Paradiso left the stand and approached the judge from behind "with an unknown cutting instrument," Konecny said.
Karen McConnell, a county spokeswoman, said witnesses reported seeing Paradiso lift the judge and begin punching and possibly stabbing her when bailiffs ran to her aid and shots rang out. Lodi Police Det. Eric Bradley has been placed on administrative leave while the shooting is being investigated, city spokesman Jeff Hood said.
"He was going after her jugular, just as he did to the victim in this case," his attorney, Chuck Pacheco, told the Lodi News-Sentinel. "He was not stopping stabbing her, going for her neck. Bradley did the right thing."
Fox, who had a bandage on her left arm as she was carried out of the courthouse on a stretcher, told reporters, "I'm OK," before being taken to a hospital. She was released later Wednesday. Calls to her home were not immediately returned.
The courthouse immediately went on lockdown, although people were allowed to leave after the building was secured, McConnell said.
Konecny said he did not know how Paradiso obtained a weapon. He said at least two bailiffs were on duty in the courtroom at the time of the attack.
Paradiso was on trial for allegedly stabbing his girlfriend, Eileen Pelt, in the neck as his mother drove them in her car. Debra Paradiso told police her son forced her to drive to Amador County, where he dumped the body.
Paradiso's attorney, Charles Pacheco, said in opening arguments last week that his client was high on methamphetamine at the time. Pacheco did not immediately return a call Wednesday seeking comment.
Aaron Paradiso, the suspect's brother, told KCRA-TV of Sacramento that his brother was "crazy" and said he had told authorities and attorneys that he shouldn't be put on the stand. He said his mother had warned deputies that the family believed Paradiso had a cutting weapon from some sort of clipper or scissors.
Concerns about courthouse security have grown since 2005, when an unshackled defendant being escorted into an Atlanta court for a rape trial stole a deputy's gun and went on a shooting rampage. A jury found Brian Nichols, 37, guilty in November of murdering the deputy, a judge and two others.
Paradiso was shot by a police detective after he left the witness stand and began attacking San Joaquin County Superior Court Judge Cinda Fox during a break in proceedings, said Dave Konecny, a spokesman for the sheriff's department.
Paradiso took the stand to testify around 2 p.m. and was quickly asked by prosecutors why he killed his girlfriend Eileen Pelt.
He responded: "Cause she deserved to die."
Paradiso's mother, Debra, stood up and started yelling, leading the judge to call a recess. As jurors filed out, Paradiso left the stand and approached the judge from behind "with an unknown cutting instrument," Konecny said.
Karen McConnell, a county spokeswoman, said witnesses reported seeing Paradiso lift the judge and begin punching and possibly stabbing her when bailiffs ran to her aid and shots rang out. Lodi Police Det. Eric Bradley has been placed on administrative leave while the shooting is being investigated, city spokesman Jeff Hood said.
"He was going after her jugular, just as he did to the victim in this case," his attorney, Chuck Pacheco, told the Lodi News-Sentinel. "He was not stopping stabbing her, going for her neck. Bradley did the right thing."
Fox, who had a bandage on her left arm as she was carried out of the courthouse on a stretcher, told reporters, "I'm OK," before being taken to a hospital. She was released later Wednesday. Calls to her home were not immediately returned.
The courthouse immediately went on lockdown, although people were allowed to leave after the building was secured, McConnell said.
Konecny said he did not know how Paradiso obtained a weapon. He said at least two bailiffs were on duty in the courtroom at the time of the attack.
Paradiso was on trial for allegedly stabbing his girlfriend, Eileen Pelt, in the neck as his mother drove them in her car. Debra Paradiso told police her son forced her to drive to Amador County, where he dumped the body.
Paradiso's attorney, Charles Pacheco, said in opening arguments last week that his client was high on methamphetamine at the time. Pacheco did not immediately return a call Wednesday seeking comment.
Aaron Paradiso, the suspect's brother, told KCRA-TV of Sacramento that his brother was "crazy" and said he had told authorities and attorneys that he shouldn't be put on the stand. He said his mother had warned deputies that the family believed Paradiso had a cutting weapon from some sort of clipper or scissors.
Concerns about courthouse security have grown since 2005, when an unshackled defendant being escorted into an Atlanta court for a rape trial stole a deputy's gun and went on a shooting rampage. A jury found Brian Nichols, 37, guilty in November of murdering the deputy, a judge and two others.
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