In their opinions: What did you think would happen?

Having worked hard to appear suspicious in an armed-and-loaded visit to the park, Embody cannot cry foul after park rangers, to say nothing of passers-by, took the bait.

- Sixth Circuit Judge Jeffery Sutton, in Embody v. Ward.

Leonard Embody went for a leisurely Sunday afternoon stroll in a nature area. He was outfitted with a camouflage suit and a Draco AK-47 pistol slung across his chest, all loaded up with a 30-round clip, all perfectly legal under Tennessee law, which allows handguns in public places such as nature areas.

He had a permit for the pistol. The pistol was barely legal: if the barrel had been a half-inch longer, it wouldn’t have qualified as a handgun. One other thing, the tip of the barrel was painted orange, typically done to indicate a weapon is actually a toy.

Embody had an audio recording device with him, apparently expecting that he’d draw some attention.

Mission accomplished. One person saw Embody and put his hands in the air without any prompting. Two others found a park ranger and expressed concern about Embody. An elderly couple told a ranger that they saw a man walking around with an assault rifle.

A ranger stopped Embody. Embody produced his permit. The ranger was unable to tell if the weapon was legal. The police were consulted. A ranger ordered Embody to the ground at gunpoint and disarmed him. After a couple hours, having determined that Embody’s weapon was legal, the authorities gave it back to him and sent him on his way.

Embody celebrated his release by suing the ranger that took him down at gunpoint. The weapon was legal, Embody said. That’s all that matters to make a case under the Fourth and Second Amendments.

The federal district court made short work of the case by granting the ranger summary judgment. Embody fared no better on appeal.

“[T]he constitutional question is whether the officers had reasonable suspicion of a crime, not whether a crime occurred. Otherwise, all failed investigatory stops would lead to successful § 1983 actions,” said Sutton, disposing of Embody’s Fourth Amendment claim.

As for the claimed Second Amendment violation, § 1983 provides remedies for federal law violations. Even if the ranger violated state law, Embody didn’t explain how that would rise to a federal constitutional offense, Sutton said.

Applying the legal principles in this case was like … well, it was like a walk in a park.

Jury: Shirvell must pay $4.5 million for defamation

Former University of Michigan student government president Chris Armstrong prevailed Aug. 16 in his federal defamation suit against former Michigan assistant attorney general Andrew Shirvell, as the jury awarded Armstrong $4.5 million in damages.

Armstrong, who was represented by Bloomfield Hills civil attorney Deborah Gordon, claimed Shirvell inflicted intentional emotional harm on his blog in 2010, while Armstrong was in his senior year.

Shirvell attacked Armstrong for his “radical homosexual agenda,” calling Armstrong “Satan’s representative on the student assembly” and a “privileged pervert.” He also accused Armstrong of getting minors to drink alcohol and trying to recruit others to become homosexuals. [For a complete rundown of Shirvell's acts, click here.]

The day before the verdict was reached, the Detroit Free Press reported that “Shirvell questioned himself on the witness stand for more than an hour Wednesday [Aug. 15], trying to convince the jury he was upset by Armstrong’s push for gender-neutral housing at U-M. Shirvell graduated in 2002.

“‘My blog was political speech,’ Shirvell testified. ‘I viewed my blog as a movement to get Mr. Armstrong to resign. I personally felt Mr. Armstrong was too radical for the position.’”

Gordon told The Michigan Daily that she doubts Shirvell’s plans to appeal the verdict will be realized.

“He’s not going to win his appeal. It’s just another waste of time just like this trial was. This should never have occurred, because he just should have retracted these statements a long time” ago, she said.

No good deed goes unpunished

Earlier this week, a Court of Appeals panel handed back a multi-million dollar headache to Judge Timothy Connors of the Washtenaw Circuit Court and politely told him we’re sorry, pal, but you did this to yourself.

At issue is a settlement the Michigan Department of Corrections made with a class of female inmates who claimed prison personnel sexually abused them for years.

MDOC agreed to pay $100 million dollars in installments over a six-year period paid into an escrow account and then distributed to the attorneys and class members according to an allocation plan. MDOC also agreed to waive the prohibition on prisoners maintaining accounts at financial institutions outside their MDOC institutional account.

For the record, MDOC has already paid some of those installments.

Here’s where the headache began.

The trial court … entered a protective order which prohibited the disclosure of the names of class members other than to necessary MDOC and Attorney General employees. The purpose of the protective order was to prevent retaliation against the class members.

The retaliation issue is important. Many of the class members are still behind bars. Paybacks can be rough, doubly so when made prison-style. Connors’ protective order rightfully addressed that concern.

But whenever big money is involved, there are always folks looking for a piece of the action – and, in this case, rightly so.

Some class members may owe child support, said the Department of Human Services. What about unpaid victim restitution, court costs, fines and fees, asked prosecutors and court administrators.

The government officials intervened. They collectively argued that any such obligations owed by individual class members have first priority in any settlement distribution.

So, said the intervenors, give us the names.

Judge Connors took a stab at it.

The trial court attempted to resolve the matter by having Intervenors submit a list of names of any female prisoner with an outstanding obligation who might have been a member of the class. Plaintiffs’ counsel was then to compare those lists against the names of class members and determine if any class member had an outstanding obligation.

This failed to resolve the dispute, however, because Intervenors determined that it was logistically impossible for them to generate a comprehensive list of all potential claimants. They continued to maintain that they needed the list of names of the class members to check that list against their own records. Ultimately, the trial court declined to order the parties to disclose to Intervenors the identities of the class members and this appeal followed.

Having plaintiffs’ counsel determine which class members owe an obligation and giving the intervenors those names is a bad idea, said COA Judge David Sawyer. There’s a big conflict of interest between protecting clients’ rights and the intervenors’ collection efforts.

The applicable statutes provide that MDOC can’t disburse settlement funds to class members until they have satisfied the obligations at issue in this case, Sawyer ruled. But there’s nothing in the statutes that give the intervenors a particular right to know the class members’ identities.

The intervenors’ interest in statutory compliance “does not equate with the right to receive the names of the class members,” Sawyer said.

So, Judge Connors, here comes your headache.

If the trial court is able to fashion a method to ensure that the MDOC is meeting its statutory obligations with respect to the proper disbursement of the proceeds of the settlement without the necessity of disclosing the names of the class members, it is certainly free do so. …

Our only directions are these: (1) the MDOC must comply with the statutory provisions to ensure that the restitution, fees and costs required to be paid by a class member are, in fact, paid before any disbursement to that class member, (2) plaintiffs’ counsel is not to be the gatekeeper to determine compliance or otherwise to identify which class members have such an obligation, and (3) there must be some oversight mechanism to confirm that the MDOC does, in fact, discharge its obligations. We also direct that any future disbursement of funds is to be suspended until a satisfactory method is in place to ensure compliance with the statute.

Sawyer offered some suggestions on how to accomplish all of this and acknowledged that Connors was being saddled with a difficult task.

But the trial court in essence took this burden upon itself when it entered the protective order. We do not disparage the actions of the trial court in doing so as we recognize the reasons for the protective order. But just as the unique circumstances of this case necessitated the protective order, it also necessitates greater involvement by the trial court in ensuring that the order does not impede the MDOC and DHS from meeting their statutory duties nor does it shield plaintiffs from meeting their financial obligations.

The case is Neal, et al. v. Dep’t of Corrections, et al.

No harm, no foul in Joe the Plumber’s First Amendment case

Samuel Joseph Wurzelbacher

Samuel Joseph "Joe the Plumber" Wurzelbacher

What’s Samuel Joseph Wurzelbacher — you know him better as “Joe the Plumber” — been up to lately?

In the 2008 presidential campaign, John McCain, Sarah Palin and the media made Wurzelbacher the icon for Republican opposition to then-Senator and candidate Barack Obama’s economic policies.

Obama was campaigning in Wurzelbacher’s neighborhood. Wurzelbacher asked Obama about the potential tax consequences of opening a plumbing business. Obama’s reply included a statement that he wanted to “spread the wealth.”

The exchange was caught on video and soon after, McCain, during a presidential debate, dubbed Wurzelbacher as “Joe the Plumber.”

Wurzelbacher became a media darling, dispensing criticism of Democratic policies in general and Obama’s in particular.

He’s capitalized on that by running for Congress in Ohio’s 9th District. Earlier this month, he won the Republican primary and will face incumbent Democrat Rep. Marcy Kaptur in the November general election.

He’s also been watching a federal First Amendment and privacy rights lawsuit that he filed swirl right down the drain.

Wurzelbacher’s exchange with Obama drew more than just media attention.

According Wurzelbacher’s suit, several days after his Oct. 12, 2008, encounter with Obama, three high-ranking officials in the Ohio Department of Job and Family Services, all Obama supporters, huddled together. They decided to authorize searches related to Wurzelbacher on child-support enforcement, welfare and unemployment databases, which were at their disposal.

Did they uncover any dirt? We’ll never know because the search results were never made public. But what became known, after the Office of the Ohio Inspector General made inquiries, was that the searches took place.

Wurzelbacher’s suit alleged that all three officials were suspended, and when the dust settled, two had resigned and the third was fired.

He alleged First Amendment and privacy right violations, claiming his exchange with Obama motivated the searches.

The federal district court granted defendant officials judgment on the pleadings.

In the Sixth Circuit, Judge Richard Griffin noted:

In order to adequately plead a First Amendment retaliation claim, a plaintiff must allege:
(1) the plaintiff engaged in constitutionally protected conduct;
(2) an adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct; and
(3) the adverse action was motivated at least in part by the plaintiff’s protected conduct.

Griffin, joined by Judges Julia Gibbons and Bernice Donald, agreed with the federal district court that Wurzelbacher came up short on pleading an “adverse action.”

He asserts that defendants, without his knowledge, performed several improper database searches under his name. However, the complaint contains no information regarding what, if any, information was discovered. Moreover, if any information was obtained, it was never publicly disclosed. …

Wurzelbacher did not suffer a threat to his economic livelihood … was not defamed … did not endure a search or seizure of property … and did not experience the public disclosure of intimate or embarrassing information … .

In addition, Wurzelbacher was not threatened with a continuing governmental investigation, and he does not allege that defendants’ actions in fact caused a “chill” of his First Amendment rights.

As to that last point, it’s tough to imagine how he could have possibly done so.

The appeals panel also ruled that informational privacy rights are violated when released information may lead to bodily harm or concerns matters of a sexual, personal or humiliating nature.

Wurzelbacher pleaded none of this.

No harm, no foul.

The case is Wurzelbacher v. Jones-Kelley, et al.

‘Pie’ producers accused of hostile work environment on the set

Just because they’re filming sexually themed humor doesn’t mean they should be partaking in it behind the camera.

That’s apparently the message a movie makeup man’s lawsuit hopes to send.

The Detroit News reports that Robert Maverick is suing the people behind the “American Pie” movies, claiming a “hostile work environment filled with nipple-pinching and sexually explicit comments” while making a comedy in Michigan.

The seven-count suit, filed in U.S. District Court in Detroit, alleges Maverick “endured numerous acts of unwelcome physical contact and verbal sexual abuse during the filming of ‘Demoted,’ a 2009 comedy produced by Hollywood heavyweight Warren Zide, a Southfield native and producer of the ‘American Pie’ franchise,” according to the report.

The report added that Lansing attorney Jean Kordenbrock wrote her client suffered “mental and emotional distress, embarrassment, humiliation, and anxiety.”

(There was no mention as to whether Maverick was pressured to watch any of the straight-to-video “American Pie” movies, which would have been an embarrassing enough act in itself.)

Add to FacebookAdd to DiggAdd to Del.icio.usAdd to StumbleuponAdd to RedditAdd to BlinklistAdd to TwitterAdd to TechnoratiAdd to Yahoo BuzzAdd to Newsvine

They sure give a ‘Hoot’ about their servers

So the big news story this week in the civil arena – at least the public one – concerns a Hooters server who was put on “weight probation.”

Cassie Smith, 20, said she was told that if she wanted to keep her job at the sports bar chain’s Roseville location, she needed to drop some weight, because her shorts and shirt size “could use some improvement.”

Fox 2 Detroit added that the 5-foot, 8-inch, 132-pound server has contacted a lawyer because Michigan is one state that carries the weight discrimination law.

Interestingly, Smith claimed that when landed the job two years ago, she was actually 10 pounds heavier. (She must have taken the advice from the “Eat This, Not That!” experts, and avoided the wings.)

The news station got a response from the sports bar’s corporate headquarters that the company “does not impose any weight requirement, and no employee in Michigan has been counseled about their weight.”

Further, “Our practice of upholding an image standard based on appearance, attitude and fitness for Hooters girls is both legal and fair. It is not unlike the standard used by the Dallas Cowboy Cheerleaders or the Radio City Music Hall Rockettes.”

Apparently, the restaurant is concerned about the well-being of its employees, as Smith said she was offered a free monthlong gym membership to, well, conform to the “standard” better.

UPDATE, MAY 24: The Detroit News has reported that Smith has filed a lawsuit in Macomb County Circuit Court, asserted an ELCRA violation.

A surprise objection

Last week, the Michigan House of Representatives judiciary committee took up for the first in what certainly will be many discussions on a statewide funding and oversight structure for indigent defense.

Among the supporters were a host of nonprofit advocacy groups, the NAACP, Ruth Lloyd-Harlin who is the sister of Michigan’s first DNA exoneree Eddie Joe Lloyd. Retired judges and law school deans supported the proposed bill.

The sole objection was a surprise — William J. Winters III, president of the Wayne County Criminal Defense Bar Association, who wrote a letter to the committee expressing his views (not those of the association) and concerns over the possible politicization of indigent defense. Thinking that the state-funded system would be free of undue political preference is a “hopeless illusion,” Winters wrote, adding that no legislation can eliminate the distinctly human traits of nepotism, cronyism and favoritism.

Though he doesn’t claim that the system is adequately funded as it is now, Winters wrote that he doesn’t see how statewide funding will make the situation any better.

The proposal could be taken far more seriously if its proponents summoned the political courage to fund this new system with an increased tax on legal products and services which directly and disproportionately contribute to crime: the beer, wine and spirits industry and casino ‘gaming’ interests. These purveyors of misery and despair have enjoyed a tax haven in our state for far too long. A fair and reasonable tax is overdue, but these competing interest groups are apparently off-limits because they are too powerful to take on. Instead, proponents take the easy way out: they want defendants, most of whom are desperately poor, to fund the system.

Winters addresses the pink elephant in the room, a simple reality that few want to discuss: Michigan’s pool of money is shrinking. Within those limits, what legislator would put an unpopular population — those charged with crimes, some of whom are (gasp) guilty — over the interests of populations to which we pay plenty of lip service — in particular, school children? We can’t, or won’t, even adequately fund our schools if it means paying higher taxes. Is it possible that we’ll have the political stones to adequately fund indigent defense?

Read Winters’s entire letter here.