California's Proposed Drone Laws Part One: The Text of SB 15

I have written a lot about state drone laws in this blog, and I've tried to discuss laws states have passed as well as proposed regulations of drone technology. But it looks like I have not yet discussed how California has addressed (or is trying to address) the issue of drones. I came across this editorial that opines on California's need for drones and the quality of proposed drone regulations. In a series of posts, I hope to describe and evaluate California's proposed drone laws.

California's proposed bills for drone regulation include SB 15 and AB 1327. I have decided to discuss California's drone regulation bills in a series of three posts. In this post, I will describe SB 15. In Part Two of my discussion of California's drone bills, I will describe AB 1327. And in Part Three, I will evaluate the bills. I will discuss what portions of the bills are unlikely to make a difference, what parts are likely to have an effect, and whether these effects will be positive or negative.

So let's get to SB 15...

Seinfeld and Torts Review

Over at the Faculty Lounge, Wes Oliver discusses how clips from episodes of Seinfeld may be used to teach various areas of criminal law. He wonders whether Seinfeld episodes can be used in other ways to teach legal concepts.

I have just finished up Kaplan's torts lectures for bar review, and I remembered that some scenes from Seinfeld may be useful tools for reviewing tort law concepts. The famous Soup Nazi episode contains a side-plot where Kramer is charged with watching an armoire, but he is intimidated by two men who end up carrying it away. This clip could be used to illustrate conversion, as the armoire is never returned.




For those looking for an issue-spotting exercise, I recommend this scene from the episode, The Statue, where Kramer impersonates a police officer in order to recover a statue that he believed had been stolen from Jerry. While it is little more than a minute long, the clip and its context involve an impressively high number of intentional torts.




I have listed some of the torts that could be addressed in this video below in white -- highlight the space below to see some of the issues I've spotted so far.

Battery, Assault, False Imprisonment (under false impression of legal authority), Intentional Infliction of Emotional Distress, Trespass, Trespass to Chattels, Recapture of Chattels, Conversion, Slander (if neighbors heard, which is probably reasonable to expect)

For those who are interested in law and Seinfeld, this older post from the Volokh Conspiracy summarizes a seminar on the various legal lessons that episodes of Seinfeld raise, and the blog Seinfeld and the Common Law (with posts here and here) has more in-depth discussion on the legal implications of Seinfeld episodes.

Whether the Prosecution Must Unilaterally "Disarm" During "Rhetorical Battle" With the Defense

I was intrigued by Westlaw's "Headnote of the Day," which states:

When entering rhetorical battle with defense counsel during closing argument, nothing requires the government to disarm unilaterally. 

United States v. Pirro, 9 F. App’x 45 (2d Cir. 2001)

I decided to look a little more into the context of this headnote. In Pirro, the defendant argued that he was denied a fair trial because the prosecutor acted improperly during closing arguments. The prosecutor argued that the defendant's arguments were "implausible and contrary to common experience," said that the defendants were "crooks," and sarcastically disparaged some of the inferences that the defendant asked the jury to draw.

The Second Circuit Court of Appeals noted that very little discussion on these points was required because (as the headnote states above), the government was not required to "disarm unilaterally" in rhetorical battle with the defense. The Second Circuit cases the court cited in support of its conclusion, U.S. v. Rivera and U.S. v. Wilner, clarify that the prosecutor is not foreclosed from being a strong advocate during closing arguments. The court in Wilner employed some rhetorical flair of its own in making this point:

A prosecuting attorney is not an automaton whose role on summation is limited to parroting facts already before the jury. He is an advocate who is expected to prosecute diligently and vigorously, albeit without appeal to prejudice or passion. His task is not rendered easy by the “no holds barred” tactics indulged in by all too many defense counsel in recent years.

I think that this is a good approach for courts to take, since the purpose of closing argument is not only to summarize the facts, but to apply them in a compelling manner. Without leeway to criticize the other side, and employ occasional sarcastic disparagement or colorful language, the prosecutor's closing would be reduced to a dull, unmemorable series of factual reiterations.

Of course, the right to a fair trial may be harmed if the prosecutor strays too far into inflammatory language, or if the prosecutor injects his or her own credibility determinations into the argument. And putting the right to a fair trial to the side for a moment, a prosecutor should probably avoid being overly sarcastic or condescending towards the defense, since this could come across as condescending and alienate the jury.

The lesson from Pirro and the cases it cites (which are probably more noteworthy, since they are published), is that a prosecutor can be a vigorous advocate without infringing the defendant's right to a fair trial. But prosecutors should take care that their arguments don't veer into unfair territory where constitutional violations or alienation of the jury may occur.

Ted Cruz's Recent Free Speech Bills

From Concurring Opinions, I learned that Ted Cruz is proposing a couple of bills in an effort to quell Senate Democrats' quest for "unfettered power to regulate and stifle political speech."

His first bill, the "SuperPAC Elimination Act of 2014" would eliminate limits on direct contributions to clients. I suppose that this would have the incidental effect of eliminating SuperPACs, since people could contribute directly to candidates instead of contributing to SuperPACs that pay for their own advertisements. I know a lot of people who are not big fans of SuperPACs, but I think that they would find Cruz's alternative even more unpleasant.

Cruz's second bill is even more interesting. In his "Free All Speech Act of 2014," Cruz proposes that "[a]ny law that restricts the political speech of American citizens shall apply with equal force to media corporations." Cruz then lists several examples of media corporations: "the New York Times, the American Broadcasting Company (ABC), the National Broadcasting Company (NBC), and the CBS Television Network." Interestingly, Fox News is not included on the list.

This second bill is an apparent response to Tom Udall's proposed amendment to the Constitution, which would give Congress the "power to regulate the raising and spending of money and in-kind equivalents with respect to Federal elections." Cruz criticizes the proposed amendment in a Wall Street Journal op ed here, noting that the amendment contains a caveat that it is not intended to limit the freedom of the press. Cruz's interpretation of this provision is that it gives more freedom of speech to the media rather than individual citizens.

These bills are not likely to pass --  I don't expect that the Udall amendment will go forward (since amendments like this have been proposed without success since the Court's 1976 decision in Buckley v. Valeo). If the Udall amendment falls, Cruz's bill will seem less pressing to the amendment's opponents, and the bills will probably fade into the background.

Math Nerds Beware: "π." Has Been Trademarked

Kevin Underhill writes at Lowering The Bar about Paul Ingrisano's recent trademark for the symbol for pi, followed by a period. The information on the trademark is available here. The text of the trademarked mark is:

The mark consists of the pi mathematical symbol followed by a period.

Even though the trademarked symbol is π followed by a period, Wired reports that Ronald Millet, the attorney for Ingrisano, has demanded that the website, Zazzle remove all merchandise containing the symbol π, whether or not the symbol is followed by a period:

When Ingrisano discovered that California-based print-on-demand outlet Zazzle offered an array of clothing items that feature pi–which represents the ratio of the diameter of a circle to its circumference–he had attorney Ronald Millet send the company a strongly worded cease-and-desist letter this month demanding their removal. 

. . . 

Attorney Millet defends the cease-and-desist letter. He says that to his knowledge none of the designs sold through Zazzle included the exact trademark π.—pi followed by a period—but some of them were confusingly similar to his client’s design. 

“Some clearly have a pi sign and look similar enough that folks out there might confuse it with products that my client also sells,” he says. “I saw the back and forth on the blogs of some of the sellers on Zazzle expressing their disappointment. I can see that as an understandable reaction, from a personal standpoint.”

At least Millet is sympathetic towards those who are reacting to his "missing the point of trademark law" (those are Professor Mark Lemley's words, not mine). Underhill has some more critical commentary.

Here, Ingrisano presumably added the period in the first place so the Patent & Trademark Office would be less likely to reject it as too "generic" to register. (See, e.g., USPTO, "Basic Facts About Trademarks.") If so, then he shouldn't be able to turn around and claim that a pi symbol without the period might confuse consumers into thinking an item is one of his products. And since his attorney has admitted that as far as they know, there are no products actually bearing a "π." symbol being sold anywhere on Zazzle ... well, it almost seems like he shouldn't have sent the letter in the first place, doesn't it?

I don't have much more to add, other than providing the full demand letter to Zazzle below. I think that the letter speaks for itself, so I won't criticize Ingrisano's pointless abuse of trademark law any further.

Zazzle Pi Trademark Letter by kpoulsen

How Not to Respect a Defendant's Right to a Speedy Trial

From Legal Cheek:

The incident, which occurred yesterday, sees Judge John Murphy berate public defender Andrew Weinstock in a highly unprofessional manner after he became annoyed at his refusal to waive his client’s right to a speedy trial. The judge then invites the lawyer to “go out back” to an area of the court with no cameras. The courtroom camera captures audio of shouting, swearing and what seems to be a scuffle, with several loud thuds.

The story was initially reported by Florida Today, which provides a video of the incident. The video includes the judge's shouting at the public defender, the judge and the public defender exiting the room, what sounds like an ensuing scuffle, and the applause (at 1:40) by the spectators in the courtroom upon the judge's return.

From the rest of the video, it looks like the defendant ended up asking for the speedy trial anyway, despite his lawyer's disappearance from the courtroom. The judge scheduled the trial for June 9, one week later. This is unsurprising, as the judge sounds out of breath after his return to the courtroom and was probably too exhausted to engage in a second (alleged) brawl over the defendant's Sixth Amendment rights.

Legal Cheek reports that the Public Defender's office will be reporting the incident to the Florida Bar.

Words Not to Use?: Some Good and Bad Suggestions

I came across this article by Jeff Haden in Time yesterday evening, where Haden lists off words to avoid. The article itself is a few weeks old, but LexisNexis tweeted about it today, adding its own advice that practitioners avoid these terms in legal briefs:

20 botched words that will damage your legal briefs http://t.co/NjlY82goyA via @TIME @Inc pic.twitter.com/pSAXjhiyk6
— LexisNexis (@LexisNexis) June 2, 2014

Some of the words on Haden's list are certainly words to avoid. Words like "literally," and "irregardless" are terms that should generally be avoided. But the list contains a numerous other words that lawyers should use in certain contexts. And failing to include some of these words could leave an attorney in a bad place.

For example, "arbitrate" is one of the words on the list. Why this word should be avoided is unclear. Haden writes:

Arbitrate appears in many contracts. An arbitrator is like a judge; she hears evidence, reviews documents, etc, and then makes a decision. That’s different from mediate: a mediator doesn’t make decisions but tries to help two opposing parties work out their differences and reach a compromise or settlement. 

So if you agree to enter mediation in the event of a dispute, you and the other party will try to hash out your problem the help of a neutral party. And if you can’t reach an agreement that usually means your next step will be to go to court. 

If you agree to arbitration a neutral party will make a decision that you will have to live with. Normally there are no next steps. (Except maybe disappointment.)

I can't see why "arbitrate" is a term to avoid in the legal context. If a party is drafting a contract, including an arbitration provision can be a very strong way to avoid costly and uncertain litigation. While "there are no next steps," that's usually exactly what the drafter of the contract wants.

There are other words on Haden's list like "waiver," "behalf," "libel," and "majority," that may also be crucial in a legal brief. A father may bring a claim on behalf of his son for libel, and while the defendant may raise a defense of waiver, that tactic may be contrary to a majority rule that undermines the defense.

Admittedly some of Haden's advice is a bit more nuanced than the words indicate -- for example, he argues that "in behalf" should not be confused with "on behalf." And people in Georgia may want to avoid the term "libel" when "defamacast" is proper. But these examples aside, I don't think that LexisNexis was right to flag this as a list of terms that will damage legal briefs.