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Thursday, August 25, 2016

Illinois "Pidgey's Law" an Overly Hasty, Muddled Attempt at Regulating Augmented Reality

Several news outlets have reports on this bill (AB 6601) recently introduced by Illinois State Representative Kelly Cassidy. Nicknamed "Pidgey's Law," the bill was introduced in response to reports that players of the augmented reality game, Pokémon Go, were trampling the habitats of endangered species in a federal park.

From the Chicago Sun Times:
Cassidy introduced “Pidgey’s Law” on Wednesday during a news conference at the Loyola Dunes Restoration Site. Named after one of the game’s bird Pokémon, the bill aims to crack down on location-based game developers to remove problematic gaming sites from their maps.
. . .  
If passed, “Pidgey’s Law” would give game developers up to two days to remove a location-specific site from its game if that site’s property owner, manager or custodian requests its removal. After that, developers would be fined up to $100 each day until the stop is removed. 
The bill is in response to a Pokéstop — real-life locations gamers can visit for in-game perks — that rests at the center of the dune restoration area, which is protected under state and federal law. The stop, based on an art installation that stood there a few years back, sometimes draws players off the designated path into areas where some endangered wildlife lives. 
The hundreds of Pokémon Go players who frequent the area each night have caused increased littering and vandalism as well as occasional trampling of the wildlife when rare Pokémon appear in the augmented reality of the game.
Other news outlets report on the bill here, here, and here. A common theme in all of this reporting is that the purpose of the bill is to remove in-game landmarks (in Pokémon Go these are known as Gyms and PokéStops) from private property or environmentally sensitive areas at the request of property owners or managers.

But is this what the bill actually does? Below are the pertinent sections of the bill. To make efficient use of these extensive quotes, I've emphasized the terms that are either undefined or that cause problems:

Wednesday, August 24, 2016

Value Judgments in the Bluebook

In the harrowing world of the legal publication process, law review editors use the arcane and intricate rules of the Bluebook to dissect, complicate, elaborate, and brighten up citations in an incomprehensible swirl of multi-colored track-changes notes. The time-pressured author will often defer to the editors' suggestions and click the "accept changes" button at an accelerating pace, hoping that a hasty tempo will bring a swift end to the confusing mire of references to various multi-decimaled rules.

But often these rules are open to interpretation. Indeed, a quick series of searches of value-laden terms, such as "significant," "relevant," and "particularly" lead to a number of rules that seem suspiciously subjective for such an intricate book of rules.

Consider Rule 5.2(c) regarding the proper conduct for quoting a source with a mistake:

Significant mistakes in the original should be followed by “[sic]” and otherwise left as they appear in the original:
  • “This list of statutes are [sic] necessarily incomplete.”
(emphasis added here, and in the rest of these quotes). It appears that they will tell us what mistakes are "significant" in the 21st edition.

Rule 10.6.2 discusses parenthetical notations on quoted sources, and the extreme lengths to which one may go in flagging and exploring citations:
When a case cited as authority itself quotes or cites another case for that point, a “quoting” or “citing” parenthetical is appropriate per rule 1.5(b). Within the parenthetical, the same rules regarding typeface, pincites, and short forms apply to the quoted or cited authority as if it were the direct source:
  • Zadvydas v. Davis, 533 U.S. 678, 719 (2001) (Kennedy, J., dissenting) (citing Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953)).
Note, however, that only one level of recursion is required. Thus, if a case quotes a case, which itself quotes another case, only one level of “quoting” or “citing” parentheticals is necessary. An additional level of parenthetical information may be used if the information conveyed is particularly relevant.
This appears to be the same rule employed in the portion of Rule 10.4 which governs whether one should list a department or district of an intermediate state court:
Do not indicate the department or district in citing decisions of intermediate state courts unless that information is of particular relevance:
  • Schiffman v. Corsi, 50 N.Y.S.2d 897 (Sup. Ct. 1944).

When the department or district is of particular relevance, that information should be indicated as follows:
  • Schiffman v. Corsi, 50 N.Y.S.2d 897 (Sup. Ct. N.Y. Cnty. 1944).
  • Lee v. Perez, 120 S.W.3d 463 (Tex. App. 14th 2003).
Vagueness and value judgments even dictate how the powers that be who author the Bluebook interact with the mere mortals in the legal world. From the message associated with the "Blue Tips" pages:
The editors provide authoritative guidance to reasonable questions on subjects covered by The Bluebook. The most useful answers are gathered here as Blue Tips, classified by subject. These tips are searchable and linked to theBluebook content they address. Send your questions to If our answer is useful to Bluebookers generally, it may be formulated into a new tip, below.
I was able to write this post after conducting a few searches over the course of 15 minutes or so (while also watching The Blacklist). Goodness only knows how many more value judgments the Bluebook contains, and how truly subjective the law review editing process really is.

Tuesday, August 23, 2016

Can a Map Maker be Sued for Nuisance?

In a recent post I discussed whether one could sue a map maker for nuisance. For example, say a map maker were to write on a widely-distributed map that a particular house on a street corner was ugly and that people should heckle it. This would appear to constitute a nuisance under section 822 of the Restatement (Second) of Torts which states:
One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another's interest in the private use and enjoyment of land, and the invasion is either 
(a) intentional and unreasonable, or 
(b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.
After a bit of digging, I found one case that involves a lawsuit for nuisance based on a map. While not identical to my hypothetical, it is close enough to be noteworthy, and is the only case of its kind of which I am aware. The case is Figlar v. Edwards, 2000 Conn. Super. LEXIS 2897 (Conn. Super Ct. 2000), and it is an unreported superior court decision from Connecticut. A publicly accessible version of the opinion is here.

The relevant facts and nuisance analysis are as follows:

The present case arises from the flooding of a parcel of property. The most recent complaint is in four counts, the first of which sounds in negligence, the second in reckless and wanton misconduct, the third in nuisance and the fourth in misrepresentation. The defendant moves to strike the second, third and fourth claims as well as two prayers for relief. 
John Figlar and John G. Howell purchased the property in question. The defendant, Larry Edwards, doing business as Larry Edwards Associates, allegedly provided "surveying and engineering services commencing from on or about August of 1991 up to and including October 1997 to the property, realtors, contractors, the planning and zoning commission of the town of Newtown, the plaintiffs and other general contractors and/or their agents and/or their advisors for purposes of developing said property . . ." The defendant subsequently filed a resubdivision map with the Newtown town clerk. 
In October 1997, Figlar and Howell commenced construction on the property and engaged the services of the defendant to design and layout the septic system in reliance on the defendant's survey. Subsequently, the septic system and the property flooded because the defendant either failed to find, or failed to indicate, that a storm water drainage system passed on, over and through the subject property.
. . .

As to the third count of the complaint which alleges, in relevant part, that: "9. The defendant, Larry Edwards, failed to disclose and/or depict the drainage easement upon the resubdivision map and that failure has a natural tendency to create a danger of flooding, damage and injury to the plaintiff property owners and the general public in the surrounding area. 10. The defendant's failure to depict this storm water drainage system on the resubdivision map created the continued and repeated dangers of flooding and damages to the plaintiffs' property and the surrounding areas. 11. The defendant, Larry Edwards, was charged to create an accurate resubdivision map of the subject area and he failed, despite knowledge to the contrary, to depict the storm water drainage system upon his resubdivision map. 12. This violation of the A-2 survey requirements and the inaccuracies of the defendant, Larry Edwards, violated the general public's rights to accurate and professional information contained in the recorded public maps and therefore also produced a common injury to the plaintiffs and the general public who relied upon him to properly depict said water drainage system and thereby allow for proper and reasonable development of land and prevention of damages and floodings." 
Both parties characterize this count as one sounding in public and private nuisance. A cause of action for private nuisance has four elements: "(1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; (4) the existence of the nuisance was the proximate cause of the plaintiffs' injuries and damages." (Emphasis in original; internal quotation marks omitted.) Walsh v. Stonington Water Pollution Control Authority, 250 Conn. 443, 449 n.4, 736 A.2d 811 (1999). In order to allege a public nuisance, a plaintiff must also allege the additional element that "the condition or conduct complained of interfered with a right common to the general public." Id., 459 n.9. 
The defendant asserts that because there is no allegation that the defendant owned, controlled and/or utilized any piece of land in an unreasonable fashion, the plaintiffs have failed to state a cause of action in either public or private nuisance. The plaintiffs claim that it was the maps that were the nuisance causing property. They fail to cite any authority, and the court is aware of none, for the novel argument that nuisance liability extends to those who have ownership or control over a map. The court agrees with the defendant that the plaintiffs fail to allege a necessary element of either public or private nuisance, as they do not allege that the defendant caused them any harm by way of unreasonable use of real property.
Connecticut nuisance law appears to have the added element that a defendant's conduct relate to the defendant's use of land. Accordingly, a defendant who interferes with another's enjoyment of property in some manner that does not involve the use of land cannot be liable for nuisance.

Under the Restatement definition of nuisance, however, I suspect that the Figlar plaintiff may have a viable cause of action. The Restatement does not require that the defendant own or use land in a certain manner, and if the plaintiff's allegations are correct, the defendants may well be liable for their failure to disclose a drainage easement if it results in damage to the plaintiff's property.

Monday, August 22, 2016

Volokh (and Dolinko's) Lost Maxims of Equity

Here's some informative Monday evening scholarship for those who are interested in learning more about remedies, equity, or life in general. My favorite maxim, which I try to include in every motion I write is "Equity delights in a good practical joke," although "Equity is crunchy on the outside, soft and chewy on the inside," is a close second.

For those interested in California's attempt at generating interesting maxims / fortune cookie sayings, check out this post on California's Maxims of Jurisprudence.

Friday, August 19, 2016

"Virtual Property," "Virtual Trespass," and Nuisance Law: A Pokémon Go Story

This post is a spinoff from some of my recent posts on Pokémon Go litigation which you can find here and here. Pokémon Go's popularity and related litigation has prompted commentators to discuss notions of "virtual property," and related questions of who owns virtual property and whether it can be invaded in instances of "virtual trespass." I think that "virtual property" and "virtual trespass" are poor choices of wording that lead to confused discussions and the breakdown of legal analysis.

My suggestion: stop using these terms. Rather than "virtual property," instead say, "right to enjoyment of property." Rather than "virtual trespass," instead say, "interference with the right to enjoyment of property." In short, nuisance law provides an effective avenue for coherent legal treatment and analysis of Pokémon Go and other augmented reality games. Notions of trespass lead to confusion and unanswerable questions.

For the story that prompted these legal musings, CTV News reports:
A French mayor has denounced the "anarchical settlement" of "Pokemon Go" characters on the "territory" of his eastern village and has ordered the game's creator to remove the virtual creatures.

Bressolles Mayor Fabrice Beauvois said Tuesday that he has mailed a decree to California-based Niantic Inc. and The Pokemon Company to make sure they stop setting up Pokemons [sic] in the village of about 800 inhabitants northeast of Lyon.

In his decree, the mayor says the search for Pokemons [sic] puts pedestrians and drivers at risk because players get inattentive while watching their smartphones and that it may also result in groups of people forming at night
You can find additional reporting on the decree here and here.

The article goes on to note that while Niantic has not responded regarding the mayor's request, Niantic has pointed out that people can request that the company remove a location's designation as a Gym or PokéStop. This solution, however, would not address that mayor's concern, who is requesting that the "territory" of his village be removed from the App's augmented reality altogether.

Here's the logic the mayor used:

"When a cafe or a restaurant owner wants to open a business in any French town, they have an obligation to request prior authorization to the mayor. The rule applies to all people wishing to set up an activity or occupy a space on a public property. So it applies to Niantic as well, even though their settlement is virtual," Beauvois said.

The argument illustrates an interesting question: does Pokémon Go's placement of interactive locations and randomly-generated digital creatures onto a map constitute trespass or interference with property rights? Keith Lee confronts this question in this excellent article.

One of the particularly interesting questions Lee raises goes as follows:

You might argue that [Augmented Reality] object[s] aren’t real. That they don’t constitute a physical invasion of property. But:
  • To recover in trespass for an intangible invasion to property, a plaintiff must show: (1) an invasion affecting an interest in exclusive possession; (2) the act resulting in the invasion was intentional; (3) reasonable foreseeability that the act could result in an invasion of the plaintiff’s possessory interest; and (4) substantial damage to the property. Borland v. Sanders Lead Co., Inc., 369 So. 2d 523, 2 A.L.R.4th 1042 (Ala. 1979).
Does your exclusive rights to property extend to cyberspace? Can someone place lights, sounds, objects, that are only viewable with technology assistance, on your property without your permission?

As Lee's final question indicates, the notion of "virtual space," when viewed through the lens of augmented reality games like Pokémon Go, leads to mind-bending questions over the definition and extent of "trespass." The interactive nature of augmented reality certainly lends an intuitive push towards accepting the trespass analogy. But taking a step back, putting down the phone, and taking a broader look at how the augmented reality system works leads to a breakdown in applying the logic of trespass. People's houses are not being overrun by small creatures, Pokéballs are not flying through windows -- people's physical property is not being invaded. Without the invasion, the trespass analogy breaks down.

Property owners, however, are not without a remedy. The law of property is not limited to physical property and its invasion. The law of nuisance extends to one's property rights, and interference with those rights. It is through nuisance, not trespass, that property owners may successfully argue that Niantic is causing them harm.

A series of illustrations may help clarify the argument. I'll start with an example involving one of the first forms of augmented reality technology: maps.

Wednesday, August 17, 2016

Michigan Residents File Pokemon Go Class Action Lawsuit

The attorneys at Pomerantz Law are at it again, and are attorneys of record in a Michigan class action lawsuit against Niantic and Nintendo. The allegations in the Michigan complaint overlap significantly with those in a Massachusetts class action lawsuit that I blogged about at the beginning of August filed by a Massachusetts resident. Both complaints were filed in the District Court for the Northern District of California.

Click On Detroit reports about the new class action -- which also alleges causes of action for nuisance and unjust enrichment -- filed by a Michigan couple living in St. Claire Shores, a suburban town located near Detroit that will be holding a Fence Arbitration meeting today for those who may have forgotten to mark their calendars. Reporting by Bloomberg Markets (on the lawsuit, not the Fence Arbitration meeting) can be found here.

A copy of the Complaint can be found attached to the Click on Detroit article. Its substance significantly overlaps with the Massachusetts Complaint, and it too includes multiple bold, italicized mentions of how "Niantic even placed three Pokéstops within the United States Holocaust Memorial Museum." That part never gets old.

One improvement in the Michigan Complaint is that it has more facts regarding how Pokémon Go affected the plaintiffs' lives. As you may recall, the Massachusetts Plaintiff's allegations were little more than a complaint about several people walking near his house and knocking on his door on a few occasions. The Michigan Complaint is more detailed. The factual allegations are largely copied from letters the Plaintiffs wrote to Niantic, and here is an example of some of that quoted language. Trigger warning: bold italics:

At any given moment there are at least a couple of hundred people in the park play[ing] this game, compared to the average of at least 15-20 in the park. The [Pokéstops and Pokémon gyms] . . . [are] an open invitation for the players to utilize our street, our lawns, looking in our windows . . . and so forth. There are at least 30 homes . . . that are affected by this. These players are loud, make threats, [are] intrusive, and I do not feel safe. My husband and I moved to our home almost two years ago because it was peaceful, quite, and safe. When I see people driving slow, looking into our home, walking on our property, looking into our vehicles, we do not feel safe. Neither do the neighbors. . . .

. . .

With all the traffic it is hard to tell who is playing the game, or casing out our street/park, someone who is looking to rob, rape or any other harm. . . . They park along our street that borders Wahby Park, we ask them to move and get threats and attitudes. I was threatened by a man who refused to leave. He was parked in front of my home. I had hardly any room to back out of my driveway. Mind you, he was also parked the wrong way on the street. . . . I truly hope you will take this into consideration, the news has already been in the park twice, and have interviewed neighbors on this issue.
To paraphrase, the plaintiffs live near Wahby Park which, in addition to being a great place for weddings, allegedly has six PokéStops, where players can collect items and place "lures" that attract Pokémon. This has led to a crisis of numerous people going to the park, and wreaking havoc in the surrounding neighborhood. Plaintiffs allege that players are walking on their yards, blocking driveways, and even include a picture of a potential hipster giving side-eye to the camera.


Plaintiffs seek to establish a class and use the same definition as the Massachusetts Plaintiff, which is:
All persons in the United States who own property (i) the GPS coordinates of which were designated by Defendants, without authorization, as Pokéstops or Pokémon gyms in the Pokémon Go mobile application or (ii) abutting property the GPS coordinates of which were designated by Defendants, without authorization, as Pokéstops or Pokémon gyms in the Pokémon Go mobile application.
For reasons I explain at length in this prior post, I think this class definition is likely to fail.

For a reason specific to this lawsuit, though, I think this Complaint has faces an additional, serious problem because the named plaintiffs do not appear to fall into the class. The plaintiffs include an illustration of the neighborhood as it appears in the app:

From this illustration, it appears that all of the PokéStops and Gyms are in the park, which is public property. The park is separated from all surrounding homes by a road. Accordingly, there appear to be no areas of private property that "abut" PokéStops or Gyms. This is a problem for the Complaint as a whole because the lead plaintiffs need to be members of that class. Plaintiffs might argue that their property falls within the 70-meter radius where people can interact with the stop or the gym, but this does not appear to fit the fairly specific, GPS-coordinate-based class definition.

I will continue to monitor both Pokémon Go class action lawsuits, and I will do my best to post updates as they proceed. I suspect that the plaintiffs in both will face some significant obstacles, but the law firm spearheading this effort doesn't appear to be slowing down at this point.

Tuesday, August 9, 2016

Iowa's Law Against Simulated Intoxication

Back when I lived in Iowa City, the local police blotter was a reliable source of intrigue and occasional amusement. I would read it now and then, seeing if I could spot any elementary school acquaintances or unusual stories. As Iowa City is the home of the University of Iowa, a one time number one party school, accounts of public intoxication were rampant. While reading of these arrests, I sometimes wondered what would happen if I were to simply act intoxicated around police officers.

As it turns out, such activity could result in an arrest for public intoxication, and rightly so -- at least under the language of Iowa Code section 123.46, the statute prohibiting public intoxication. Section 123.46(2) states:
A person shall not use or consume alcoholic liquor, wine, or beer upon the public streets or highways. A person shall not use or consume alcoholic liquor in any public place except premises covered by a liquor control license. A person shall not possess or consume alcoholic liquors, wine, or beer on public school property or while attending a public or private school-related function. A person shall not be intoxicated or simulate intoxication in a public place. A person violating this subsection is guilty of a simple misdemeanor. (emphasis added)
I blogged about this section previously when the Iowa Supreme Court decided that you can be as drunk as the heck you want on your porch because it is not a "public place." In that previous post, I speculated that criminalizing simulated intoxication may violate the First Amendment, but I did not look into the question further.

For those who were disappointed with the short shrift I paid to this unusual law, you are in luck! At long last, here is my analysis on whether the law violates the First Amendment...

Monday, August 8, 2016

New Jersey's Distracted Driving Bill and Its Disturbing Implications for Probable Cause

USA Today reports:
A bill under consideration in the state Legislature calls to prohibit "any activity unrelated to the actual operation of a motor vehicle in a manner that interferes with the safe operation of the vehicle on a public road or highway." That means no cup of coffee for those sitting in traffic, no munching on that breakfast burrito, no time to groom. (No, the law does not target coffee verbatim.) 
The bill is meant to target distracted driving, which plays a role in thousands of fatal crashes in the state each year. At least 3,179 fatal crashes were attributed to distracted driving in 2014, according to the state's Division of Highway Traffic Safety website. Distracted driving played a role in nearly 800,000 crashes between 2010 and 2014.
Here is a link to the bill itself. The new section the bill would create reads:
2. (New section) a. An operator of a moving motor vehicle shall not engage in any activity unrelated to the actual operation of a motor vehicle in a manner that interferes with the safe operation of the vehicle on a public road or highway.

b. A person who violates this section shall be fined: 
(1) for a first offense, not less than $200 or more than $400; 
(2) for a second offense, not less than $400 or more than $600; and 
(3) for a third or subsequent offense, not less than $600 or more than $800. 
For a third or subsequent violation, the court, in its discretion, may order the person to forfeit the right to operate a motor vehicle over the highways of this State for a period of 90 days. In addition, a person convicted of a third or subsequent violation shall be assessed three motor vehicle penalty points pursuant to section 1 of P.L.1982, c.43 (C.39:5-30.5). 
A person who has been convicted of a previous violation of this section need not be charged as a second or subsequent offender in the complaint made against the person in order to render the person liable to the punishment imposed by this section on a second or subsequent offender, but if the second offense occurs more than 10 years after the first offense, the court shall treat the second conviction as a first offense for sentencing purposes and if a third offense occurs more than 10 years after the second offense, the court shall treat the third conviction as a second offense for sentencing purposes. 
c. Except as provided in subsection b. of this section, no motor vehicle penalty points or automobile insurance eligibility points pursuant to section 26 of P.L.1990, c.8 (C.17:33B-14) shall be assessed for this offense. 
d. A law enforcement officer who issues a summons for a violation of this section shall record on the summons the specific nature of any distracted driving behavior observed.

3. This act shall take effect on the first day of the third month after enactment.
The bill's broad language of "activity unrelated to the actual operation of a motor vehicle in a manner that interferes with the safe operation of the vehicle" would likely give probable cause to any vehicle stop in which an officer sees a driver doing anything other than driving the vehicle. Eating a snack, drinking anything, engaging in animated conversation with a passenger -- all could plausibly fall under this law's broad language.

Admittedly, I suspect that many, if not most, stopped under this law will be warned rather than ticketed. But the broad language of this law would allow officers to justify traffic stops in just about any situation where they see the driver engaging in any non-driving behavior. This grant of substantial discretion may exacerbate racial disparities in traffic stops and could contribute to a disproportionate prosecution of racial minorities for crimes discovered following the stop, such as driving under the influence of alcohol or drugs.

I suspect that the "unfettered police discretion" concern will not garner many votes in opposition to this bill. But perhaps this argument, combined with the votes of those who want to drink coffee and drive, will prove to be enough to defeat this broad piece of legislation.

California Lawsuits Allege That Suspension of Drivers' Licenses Violates Due Process

The Los Angeles Times reports:
Civil rights lawyers filed suit Tuesday accusing the Los Angeles Superior Court of improperly suspending driving privileges for tens of thousands of poor people because they can’t afford to pay their traffic fines. 
The suit said the court triggers license suspensions by the Department of Motor Vehicles without determining whether the motorists “willfully” ignored fines or were too broke to pay the often exorbitant penalties. The suspensions disproportionately hurt black and Latino people, the suit alleged. 
“If they are poor and don’t have the money to pay, by definition, they cannot be found to have willfully failed to pay,” said Antionette Dozier of the Western Center on Law and Poverty, one of the lawyers on the case. “They are just poor.”
The ACLU reports that they recently filed a similar lawsuit in Solano County:
A lawsuit was filed today against Solano County Superior Court, challenging the court’s practice of suspending the driver’s licenses of people who are too poor to pay exorbitant traffic fines. In 2015, over 11,000 driver’s licenses were suspended in Solano County for failure to pay alone. In California, millions of people do not have valid driver’s licenses because they cannot afford to pay traffic fines and fees. This is the first lawsuit in California to challenge the suspension of driver’s licenses as a means of collecting unpaid traffic fines. 
Lead plaintiff in the suit is Rubicon, a nonprofit that provides employment, career, financial, legal and health & wellness services thousands of low-income people across the Bay Area. “Many of Rubicon’s program participants rely upon having a driver’s license to find or keep employment,” said Jane Fischberg, CEO, Rubicon Programs. “When their license is suspended due to traffic fines and fees they cannot afford to pay, our participants’ lives are put on hold, and their families suffer.”:
Here is the complaint for the ACLU lawsuit. I have not yet been able to find a copy of the Los Angeles County lawsuit. The ACLU complaint and this press release on the Los Angeles complaint indicate that both lawsuits allege violations of due process rights when drivers' licenses are suspended due to failure to pay traffic fines.

Vehicle Code section 14601.1 criminalizes driving on a suspended license. There is a mandatory minimum fine of $300 for first time offenses, and a mandatory minimum $500 fine for offenses that occur within five years of an initial violation. With court fees and penalties factored in, these fines can total to thousands of dollars. These can be a substantial -- if not impossible -- burden on people whose licenses were suspended due to failure to pay fines on other traffic offenses. And, as this report suggests, the burden of suspended licenses tends to fall disproportionately on racial minorities and the poor.

Unfortunately, I do not have the time to investigate the legal questions these lawsuits raise to give an evaluation of the complaints' merits. But I do think that these lawsuits highlight an important, if under-emphasized aspect of California criminal law. The mandatory fines accompanying suspended license violations may render it impossible for those convicted to pay off their fines and obtain the ability to drive.

In areas of California where driving is a virtual necessity, these laws and their associated penalties may present an insurmountable obstacle on those who are convicted. While these violations are misdemeanors or infractions, the impact they have on people's lives can be profound. These lawsuits will hopefully draw attention to this unfortunate reality, and perhaps will prompt changes that lead to a more practical set of suspended license laws.


One of the organizations representing the Plaintiff in the Los Angeles lawsuit is A New Way of Life, which runs a reentry clinic in conjunction with UCLA School of Law's El Centro legal clinics program. I volunteered for the reentry clinic from 2011 to 2014. On the other hand, I filed and prosecuted dozens of driving on suspended license cases between 2014 and 2015 while I worked for the Orange County District Attorney's Office.  So it is up to you, dear reader, to determine the direction of my potential biases.

Sunday, August 7, 2016

Possible Sovereign Citizen Elected to Australian Senate

Just when you thought that this blog was now solely focused on the legal intricacies of Pokemon Go...

Through my Google Alert for "sovereign citizen" I learned about an unusual story out of Australia. The Sydney Morning Herald reports:
One of Australia's new senators, One Nation's Malcolm Roberts, sent a bizarre affidavit to then prime minister Julia Gillard in 2011 demanding to be exempt from the carbon tax and using language consistent with the "sovereign citizen" movement.

. . .

Anti-government, self-identified "sovereign citizens" claim to exist outside the country's legal and taxation systems and frequently believe the government uses grammar to enslave its citizens. 
NSW Police say such people "should be considered a potential terrorist threat". 
. . .

In the document, Mr Roberts demanded to be exempted from the carbon tax and compensated to the tune of $280,000 if Ms Gillard did not provide "full and accurate disclosure" in relation to 28 points explaining why he should not be liable for the tax.
Mr Roberts addressed the affidavit to "The Woman, Julia-Eileen: Gillard., acting as The Honourable JULIA EILEEN GILLARD" and presented her with a detailed contract he expected her to sign.

Here is the "affidavit."

Roberts denies ties to the sovereign citizen movement, despite writing his name as: "Malcolm-Ieuan: Roberts.," referring repeatedly to himself as a "living soul," labeling the government as a corporation (but not a corporation listed in the United States of America securities exchange), and noticing his "non-acceptance," of being subject to various taxes. All of these features of the letter are flags for the sovereign citizen movement, particularly the unusual focus on contract law.

More coverage of Roberts denying affiliation with the sovereign citizen movement can be found here and here. It should be noted that Roberts also thinks that a "small cabal" of banks (and the United Nations) are behind the view global warming exists. His party, One Nation, espouses nationalism, opposes multiculturalism, and condemns immigration.

I do not find Roberts's denial plausible. I can imagine a situation where one espouses views in a letter or blog post that incidentally overlap with a person, political party, or organization that one does not agree with. But Roberts's letter contains very specific language, punctuation, and fixations on contracts that are trademarks of the sovereign citizen movement. Roberts admitted that he wrote the letter. And Roberts (to my knowledge) has not yet explained why he used the peculiar phrasing in the letter.

Possibly the best evidence that Roberts is not a sovereign citizen is the fact that he now holds elected office in a government that most sovereign citizens would claim lacks any legitimacy whatsoever. I hope that Roberts is pressed with more specific questions on his letter and sovereign citizen affiliations, and I will be watching his career with great interest.

Tuesday, August 2, 2016

Evaluating the Pokemon Go Class Action Lawsuit

Several news outlets have reports on Marder v. Niantic, Inc., filed July 29, 2016 in the Federal District Court for the Northern District of California. A copy of the complaint is available here.

Coverage of the complaint is available here, here, here, and here, although the Boston Herald seems to have the most direct quotes from various people involved in the suit or otherwise wronged by Niantic's Pokemon Go app.

The Complaint outlines Pokemon Go's success, but notes that the game places "PokeStops" and "Gyms" -- locations that attract players -- on or near private property. The Complaint states that Niantic "blithely" acknowledges that players may trespass, although a round of updates a few days ago added more explicit admonishments against trespassing. The Complaint also notes several times in bold and italicized letters that "Niantic even placed three Pokéstops within the United States Holocaust Memorial Museum."

Strong stuff.

The Complaint goes on to describe the terrors inflicted on the named Plaintiff, Jeffrey Marder:

In the days following the U.S. release of Pokémon Go, Plaintiff became aware that strangers were gathering outside of his home, holding up their mobile phones as if they were taking pictures. At least five individuals knocked on Plaintiff’s door, informed Plaintiff that there was a Pokémon in his backyard, and asked for access to Plaintiff’s backyard in order to “catch” the Pokémon.
The Complaint goes on to cite other instances of Pokemon Go causing people to drive or park near people's houses, and again notes that "Niantic placed at least three Pokéstops within the United States Holocaust Memorial Museum in Washington, D.C." (emphasis [unfortunately] in the original).

Interestingly, one of the stories the Complaint cites is that of Boon Sheridan, whose house used to be a church. Sheridan reported that the game made his house into a Gym and that many players would park outside or drive slowly past. The Boston Herald managed to get in touch with Sheridan, however, and he stated that he complained to Niantic who removed the Gym designation from his house within 48 hours. Sheridan further stated that he likely would not join Marder's lawsuit.

The Complaint alleges causes of action for nuisance (invasion of the use and enjoyment of one's land) and unjust enrichment (Defendants received monetary benefits from their alleged tortious conduct). The Complaint seeks class action status for the class defined as:
All persons in the United States who own property (i) the GPS coordinates of which were designated by Defendants, without authorization, as Pokéstops or Pokémon gyms in the Pokémon Go mobile application or (ii) abutting property the GPS coordinates of which were designated by Defendants, without authorization, as Pokéstops or Pokémon gyms in the Pokémon Go mobile application.
While I will readily acknowledge that the intricacies of class action litigation are not the focus of my legal practice or research, my initial reaction is that this class definition will face an uphill battle in proving commonality among the class members. Like the class members in Wal Mart v. Dukes who were thwarted by the jump from an individual experience of sex discrimination to a business-wide policy of discrimination, here, the Plaintiff must show that class members living on or near property designated as PokeStops suffer a similar loss of enjoyment of their land. This will be difficult for Plaintiff to show.

I base this assessment on the game's design and Plaintiff's choice to limit the class definition to Plaintiffs owning property near Gyms and PokeStops. Plaintiff will be hard-pressed to show that class members tend to have people knocking on their doors in search of Pokemon as a result of PokeStops or Gyms placed on the property. Off the bat, Gyms are not a source of catching Pokemon -- players simply need to be within a certain distance of the Gym in order to interact with it. That distance used to be 100 meters, after the latest round of updates, it is apparently 70 meters. Even with the decreased distance, there should often be no need to approach or knock on the door of the property where the Gym is located.

If the property has a PokeStop, it may be the location of a "lure" module which increases the frequency of Pokemon appearing within a radius surrounding that location -- but again, the 70-meter radius is often large enough that players need not be inside the property (or within its curtilage, if I may borrow from Fourth Amendment law) to take advantage of the lure. Players can likely stand nearby on a sidewalk which, while potentially aggravating to an ornery landowner, does not appear to amount to a loss of enjoyment of the property. After all, people normally walk, stand, and allow their dogs to defecate on and near sidewalks. Increased foot traffic and the occasional presence of nostalgic hipsters is not much of a change.

In previous posts, I criticized New York State Senators for allowing their staff members to play Pokemon Go for weeks in order to generate ill-conceived policies to combat problems that do not exist. Here, however, I feel that Plaintiff and his attorneys would have done well to play the game a bit more before filing this class action. Doing so would reveal the significant obstacle to establishing the commonality element of his class definition.

And, after all, isn't this exactly what summer associates are for?

Monday, August 1, 2016

Following "Alarming" Report, New York Bans Pokemon Go for Sex Offenders on Parole

So reports Governor Andrew Cuomo's office in this press release:

Governor Andrew M. Cuomo today directed the New York State Department of Corrections and Community Supervision to restrict sex offenders under community supervision from using Pokémon GO and similar games. In an effort to safeguard New York’s children, the Governor also sent a letter to software developer Niantic, Inc. requesting their assistance in prohibiting dangerous sexual predators from playing Pokémon GO.

“Protecting New York’s children is priority number one and, as technology evolves, we must ensure these advances don't become new avenues for dangerous predators to prey on new victims," Governor Cuomo said. "These actions will provide safeguards for the players of these augmented reality games and help take one more tool away from those seeking to do harm to our children." 
At the Governor’s direction, DOCCS has imposed a new condition of parole for sex offenders under community supervision that will prohibit them from downloading, accessing, or otherwise engaging in any Internet enabled gaming activities, including Pokémon GO. The directive will apply to nearly 3,000 Level 1, 2 and 3 sex offenders currently on parole. The Department of Criminal Justice Services will additionally be providing guidance to county probation offices recommending the adoption of this policy. ​
This ban was announced almost immediately after the "Alarming Report by State Senators Jeffrey Klein and Diane Savino Detailing Dangers of Pokémon GO in Exposing New York’s Children to Sex Offenders."  As I noted in a post last Saturday, Senators Klein and Savino's report was indeed alarming -- not because it revealed that the game had actually been subjected to malicious use by sex offenders, but because it revealed the Senators' inability to keep their staff from playing a game in which they capture and battle imaginary creatures.

News outlets report on this ban here, here, and here. Douglas Berman also posts about the ban here and highlights Senator Savino's admission that "there's no evidence to any kids were sexually abused after being lured by the Pokémon app."

It's excellent to see a state government spend so much time and effort combating a problem that has not yet manifested. Additionally, it is fantastic that parole condition prohibits sex offenders on parole from downloading, accessing, or otherwise engaging in "any Internet enabled gaming activities," which would presumably include any game that requires the Internet to play, no matter whether there is any contact or potential contact with other players, both in the real world or cyberspace.