3d DCA Watch -- 1995 Flashback Edition!

Hi kids, it's cold and I'm working too hard.

In other news, the bunker is insulated, the coffee warmed to optimum swilling temperature, the robes all have plug-in electric heaters, and the opinions are all just so darn cute and snuggly!

Avila v. Miami-Dade County:

Judge Shepherd has three words for you -- en haec verba!!

(No, I don't understand what it means either.)

In fact, the only words in Latin I remember are "tu es pulchra."

Weingrad v. Miles:

This one has some heavy duty appellate lawyers involved, must be pretty important:

Dr. Daniel Weingrad appeals an award of $1.5 million in noneconomic damages to Kimberly Ann Miles (“Miles”) and her husband, Jody Haynes (collectively, “Appellees”). The sole issue before this Court is whether the retroactive1 application of section 766.118, Florida Statutes (2003), which capped noneconomic damages in certain medical malpractice actions at $500,000, is constitutionally permissible as applied to the facts of this case. Because we find that Appellees had no vested right to a specific damage award at the time the injury occurred, we conclude that applying the cap to Appellees’ noneconomic damage award is constitutional, and we reverse and remand for proceedings consistent with this opinion.

Judge Cope dissents, and given the conflict among the districts I suspect this one is going up up up.

Oh yeah, one more thing.

If you're going to cite to a book called A Dictionary of Modern Legal Usage (2d Ed. 1995) maybe there's a more recent edition?

I'm not sure anything can properly be called "modern" in a year when the Spice Girls ruled, people were still playing Super Nintendo and Microsoft had just launched "Windows 1995."

First, Let's Kill All the Lawyers!

Courtesy of Liz Cheney and Bill Kristol comes one of the lamest examples of anti-lawyer agitprop we've come across in some time.

It's not a big mystery anyways -- I'm pretty sure the "Al Qaeda Seven" was the house band in the Napoleon Ballroom at the old Deauville back in the day.

They're Only Allegations!

Anyone remember that time during the 2003 FTAA meeting in Miami when Police Chief John Timoney got in an elevator and Ice T started rapping "ca-ca-ca-colors" and then Sean Penn busted some protestor's head?

Ok, maybe I got things a little confused, but the 11th Circuit just sustained for the most part Judge Martinez' denial of qualified immunity as to the protestors' First Amendment claims, at least at the motion to dismiss stage.

Here's what they allege happened:

In the Protesters’ first amended complaint, they allege that while peacefully demonstrating outside the FTAA meeting on Biscayne Boulevard in Miami, a police line appeared and engaged the demonstrators, including the Protesters. D.E. 45 at 20–22. The Protesters allege that law enforcement officers began “herding” the demonstrators, using their batons to beat unarmed demonstrators, spraying pepper spray up and down the police line, and discharging bean bags, pepper spray balls, tear gas, and other projectiles. Id. at 21–24. The Protesters allege that they were injured as a result of the law enforcement conduct. Id. at 26–29. The skirmish line continued with the “herding” of demonstrators and the Protesters by pushing them northward out of the area. Id. at 23–24. The Protesters further allege that the unconstitutional acts, including “herding,” encirclement, and use of excessive force, were witnessed, condoned, and directed by, inter alia, Timoney, Fernandez, and Cannon in their supervisory capacities. Id. at 42–44. The Protesters also allege that Timoney, Fernandez, Cannon, and Burden, in their supervisory capacities, could have intervened at any time to prevent the continued constitutional violations against the Protesters, but they failed to do so. Id. at 59–61.

And?

We're talking bean bags, people!

I've seen worse in the bounce house at Chucky Cheese.

"Why Can't You Carry A Gun Into a Federal Building"?

That's just one provocative question raised by Nina Totenberg on NPR this morning, as she previews arguments in the Chicago handgun case to be heard by The Supremes today:

The odds are that gun advocates will win this case. The Supreme Court's groundbreaking 2008 decision was by a 5-4 vote, with conservatives in the majority. But now the question is whether a right declared fundamental by the court can be isolated as a federal right only — a proposition that liberals generally have not favored.

And if gun advocates do win this case, expect a torrent of other cases, some already in the pipeline, that test a huge array of existing gun regulations — everything from laws banning concealed weapons to those banning the carrying of weapons in public without a permit, and laws that issue a carry permit only upon a showing of good cause or necessity.

Then there are laws that limit the number of guns that can be purchased at one time; laws that ban assault weapons; laws that ban hunting rifles with optical sights in urban areas; laws that require guns to be trigger-locked or stored in a locked container — even a new California law that requires handguns to micro-stamp each cartridge when fired with the serial number of the gun.

All of those laws could be in jeopardy, and more, depending on how the Supreme Court rules.

Listen, I know some federal courts where you can't carry in a cellphone, let alone a pistol.

And, for whatever reason, no audio transcripts of the oral argument will be made available, so you can forget any YouTube mashups on this one.

Argument begins at 10 a.m.

Law Updates for February 19, 2010

Loncar, 35 FLW 324, 2nd DCA, Modification of probation without a violation is improper and enhancing the def's probation condition is improper. Requirement that the Def could not live within 10 miles of the victim prevented him from living with his father as he had earlier, more restrictive than prior condition. Remand to reinstate the prior probation order.

Green, 35 FLW 325, 2nd DCA, Improper comment on right to remain silent. Case-elicit from the
police that the def declined to give a statement unlike his co-def's. Argued in closing, harmful error, def did not open the door to these statements by narrowly tailored questions to the police in order to try and show they set up the co-def's against each other.

Barrow, 35 FLW 328, 4th DCA, Judge implied to jury who requested transcripts of witnesses 10 minutes after deliberations started without advising them of the possibility of read backs, ignoring the request of the state and defense, certified conflict with 3rd DCA, Hazuri, 34 FLW 2590, 12-16-09.

Douglas, 35 FLW 354, 3rd DCA, Double jeopardy. No manifest necessity with the court declaring a mistrial, def no waiver and not discuss alternatives enough where there def not brought to court on the 2nd day of jury trial as there was H1N1 quarantine at the jail in the def's unit and case would have to be delayed for a week.



The Law Offices of Roger P. Foley, P.A.

Jude Law Spends Six Hours With Maurice Kutner!

You tell me how to read this:

Jude, who fathered the five-month-old baby girl during a fling with model Samantha Burke, met celebrity lawyer Maurice Kutner for six hours in Miami on Thursday, ahead of the summit.

A source said: "Jude was very on edge about the meeting."

I mean, wouldn't you be?

We're talking six straight unadulterated hours with Maurice Kutner, I know I would be plotzing!

(Huh, what's that? Oh, ok.)

Excuse me folks, I've just been reminded by one of my editorial assistants that perhaps Jude was not so much on edge over having to spend six hours with Maurice, but rather he was on edge over meeting his old flame and young daughter.

Interesting theory, but color me skeptical.

BTW, can you name a memorable Jude Law performance?

A.I.?

Cold Mountain?

I liked him alright in Alfie but that hardly justifies all the media attention.

Come on, someone help me out here.

Blawg Review #253

Well it's always Spring Break in sunny South Florida, where some of our lawyers "loan" each other $18 million because that's just how we do things down here.

But let's get ready to welcome our sunburned visitors!

Although there have been many Spring Break movies set on our lovely beaches, none sum it up better than the simple "rich man/poor man/Oil man/water ski instructor" premise of Elvis' 1967 classic Clambake -- I mean where else can you see Elvis sing an entire song about a miracle polymer and also see Bill Bixby employing karate moves in a super tight Speedo?

(I told you things can get a little weird down here.)

But Spring Break is also about music, so here's some downloading advice from people who know about such things.

(And here's a person who does not know about such things).

And of course, you still need health care especially if you're rocking that Bixby bathing suit.

Has anyone considered the legal implications of our recent Florida killer whale incident -- of course ATL has.

(Longtime readers, don't worry -- I'm well aware that it was a young Bo Derek whose leg gets munched on by that strangely anthropomorphic beast in the Jaws ripoff Orca).

Is it snowing in other parts of the country? Seriously?

I totally forgot, but apparently it is.

Speaking of snow, Vancouver was pretty neat (and not just because of the Double McTwist 1260).

BTW, if you can trademark a snowboard move, I've got dibs on "fall repeatedly down the mountain like a ragdoll." Use that in your next job interview.

And of course that leads us to PI lawyers, including the masterful Eric Turkewitz who always beats the pants off me in that ABA Blawg competition.

Is there a good reason to blawg anonymously?

Maybe it's this:

Sometimes it is cowardice or fear of the consequences; sometimes it is a juvenile love of mystery.

Ouch, this is supposed to be fun, but then privacy just ain't what it used to be:

What of the leaders of the companies harvesting our online footprints, and sharing the data with the world for profit? What do they have to say about how their efforts affect our personal lives and our privacy? “If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place,” Google CEO Eric Schmidt has said.

That's comforting (not).

Maybe I should go back to a lighter subject.

Like this?

Naah, that's not our style (that reminds me, whatever happened to Greenberg Girl)?

It's South Florida, it's Spring Break, it's Blawg Review -- now let's apply that Goop!

Blawg Review has information about next week's host, and instructions on how to get your blawg posts reviewed in upcoming issues.