July 1, 2015

About those "Daygo Bombs"...

A while back, I mentioned the offense of maintaining a "bawdy house" as such a thing is defined in a state statute I was citing.

With the 4th of July coming and a weird combinations of laws in DE and PA, I have gotten my Delaware Fireworks Permit ready.

What is a Delaware Fireworks Permit? It is a $100 bill - the prescribed fine for the use of fireworks in Delaware.

Where do you get the fireworks? Why in Pennsylvania of course. Due to a bizarre drafting quirk of PA law, which has now become a multi-million dollar business, the state of Pennsylvania bans the sale of fireworks to Pennsylvania residents.

Because of that PA law, fireworks of any kind can be sold in PA to non-residents of PA. So, dotting the major roads into PA there are huge fireworks stores. To enter, you show them your driver's license showing that you are NOT a PA resident, and you can legally purchase fireworks in the store. The "good stuff".

Now, yes, the DE state police keep an eye on the traffic going in and out of there, and pull people over at the border if they are dumb enough to pull onto I-95 from that exit and enter the state. If you take other roads, or had another errand in PA anyway, you won't fall into the fireworks trap on I-95.

But, aside from having a $100 bill handy if you get caught setting them off, it is important to know just what, exactly, in Delaware, constitutes "fireworks".

The Delaware fireworks law is one of those lovely exercises in what lawyers call "enumeration". For lack of doubt as to any particular thing that might, or might not, be "fireworks" we have a helpful definition:

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§ 6901 Selling or possessing fireworks; exceptions.

No person shall store, sell, offer or expose for sale, or have in possession with intent to sell or to use, discharge or cause to be discharged, ignited, fired or otherwise set in action within this State, any fireworks, firecrackers, rockets, sparklers, torpedoes, Roman candles, fire balloons or other fireworks or substances of any combination whatsoever designed or intended for pyrotechnic display except after having obtained a permit as provided in § 6903 of this title and also except as provided in § 6906 of this title. This section shall not apply to any person established and manufacturing fireworks of any or all kinds in this State on September 5, 1939.

The term "fireworks," as used in this chapter, shall mean and include any combustible or explosive composition, or any substance or combination of substances, or article prepared for the purpose of producing a visible or an audible effect by combustion, explosion, deflagration or detonation and shall include blank cartridges, toy pistols, toy cannons, toy canes or toy guns in which explosives are used, the type of balloons which require fire underneath to propel the same, firecrackers, torpedoes, skyrockets, Roman candles, Daygo bombs, sparklers or other fireworks of like construction and any fireworks containing any explosive or flammable compound, or any caps or tablets or other device containing any explosive substance, except that the term "fireworks" shall not include toy pistols, toy canes, toy guns or other devices in which paper caps manufactured in accordance with the United States Interstate Commerce Commission regulations for packing and shipping of toy paper caps are used and toy pistol paper caps manufactured as provided therein, the sale and use of which shall be permitted at all times.
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Now, I read this damn thing every year, just to see if it was amended, and I'd like to know whether I would be correct in understanding that "Daygo Bomb" includes an ethnic slur?

The reason I wonder is that one of the "favorite cases every lawyer knows" from first year law school is Palsgraf v. Long Island Railroad Co. (https://en.wikipedia.org/wiki/Palsgraf_v._Long_Island_Railroad_Co.). To make an unduly long story short, Ms. Palsgraf was apparently injured in an unclear chain of events which happened as she was standing on a train platform and:

"Plaintiff was standing on a platform of defendant's railroad after buying a ticket to go to Rockaway Beach. A train stopped at the station, bound for another place. Two men ran forward to catch it. One of the men reached the platform of the car without mishap, though the train was already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind. In this act, the package was dislodged, and fell upon the rails. It was a package of small size, about fifteen inches long, and was covered by a newspaper. In fact it contained fireworks, but there was nothing in its appearance to give notice of its contents. The fireworks when they fell exploded. The shock of the explosion threw down some scales at the other end of the platform, many feet away. The scales struck the plaintiff, causing injuries for which she sues."

Now, quite frankly no fireworks were going to knock down scales at the other end of the platform. My personal theory is that she reacted in fright, and probably fell into the scales or caused them to fall onto her.

But, in any event, while not reflected in the appellate decision, both the trial transcript and newspaper reports at the time were careful to note:

"The police surmised that the three men, who disappeared, were Italians 'bound for an Italian celebration somewhere on Long Island, where fireworks and bombs were to play an important role.'"

Now, remember, this was 1928, and the spectre of Italians going about the boroughs of New York with "bombs" for some sort of "Italian celebration" makes the inquiring mind wonder if these were not merely celebratory Italians, with their usual complement of bombs, but whether there was perhaps something more sinister afoot.

Be that as it may, the apparently well-known hazards of Romans, Venetians or, dare I add, of course in sotto voce, Sicilians, going about the countryside with bombs was apparently considered a real threat at some point in Delaware.

And, to make sure we know who we meant, the Delaware legislature made sure to call them "Daygo bombs" to remove all doubt.

I hope, some day, now that we can buy the "good stuff" at the border, my state gets around to updating the list....

But until then, I will avoid the "Daygo bombs" and pick me up a mess of lady fingers, fuzz buttles, snicker bombs, church burners, finger blasters, gut busters, zippity do das, crap flappers, whistlin' bungholes, spleen splitters, whisker biscuits, honkey lighters, hoosker doos, hoosker don'ts, cherry bombs, nipsy daisers, with or without the scooter stick, and a whistlin' kitty chaser.



Have fun. Be safe.

Light fuse. Get away. Use only under adult supervision. Close cover before striking.

July 1, 2015

Here's what happens when clerks refuse

While there have been interesting visions of "lock 'em up" or "send in the troops", the actual process in these instances has a little more sting, and a lot less "martyrdom potential".

So, what do you do when a clerk refuses to issue a lawful marriage license on the basis of their religious beliefs?

Contrary to what some believe, it is not directly a "crime" to disobey a court order, and in a direct sense, this clerk has not been "ordered" by any court to issue a marriage license in the first place.

However, it is now the law of the land that persons of the same sex who are otherwise lawfully able to be married (age, consanguinity, consent, residence, whatever) what the clerk is doing is a deprivation of civil rights.

When you have been deprived of your civil rights by a government official, the relevant law is 42 USC 1983 (that's chapter 42 of the United States Code, Section 1983), typically called a "1983 action":

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable."

Okay, so that says "you can sue the clerk".

But, as they say on Survivor, "You want to know what you're playing for?"

Compensatory damages, punitive damages, and, in a rare departure to the normal rules of litigation in the US - attorney's fees - under 42 USC 1988:

"In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity such officer shall not be held liable for any costs, including attorney’s fees, unless such action was clearly in excess of such officer’s jurisdiction."

And, oh yeah, it's clearly in excess. Mind you a "reasonable attorney's fee" does not have to be the actual hours at the billable rate, but what would be "reasonable". If a top shelf NY firm would charge $10,000 to file, then that's "reasonable". The system is run by lawyers, and they can be downright unreasonable about what is a "reasonable attorney's fee".

That, incidentally, is how civil rights litigation organizations are funded, apart from donations.

So, you fill in the relevant names, dates and places in a form complaint, pay your $300 filing fee (also included in the prize package), along with the form motion for emergency injunctive relief, and serve it on the clerk.

The clerk then checks up the line and says, "Hey, is this real? Am I covered for this?" and finds out, in most instances, that the county will not pay their legal fees or cover their liability. The clerk then calls his or her friend the lawyer who says, "Issue the license or get out your checkbook."

Now, where it gets real fun is when the clerk decides he/she wants to be a hero. The clerk is going to lose on the motion for injunctive relief (ordering the clerk to issue the license) and is then going to have to decide how many days they want to spend locked up on contempt before (a) they issue the license, (b) they resign their post or (c) someone else in that county office is empowered to issue the license and they do so. Both (b) and (c) render holding the clerk on contempt to be moot, since the point of contempt is to gain compliance with the order, and not some "penalty" for non-compliance.

And this is what just played out in a county in Texas. While the Texas AG issued a much-hyped memo to clerks saying that they, personally, do not have to issue a license, the less-hyped portion of that memo says that someone ELSE in the office with the same power can issue it.

Karen Phillips, the Smith County (Texas) Clerk, just learned this the hard way:
http://www.kltv.com/story/29433340/same-sex-couple-drops-lawsuit-against-smith-co

Suit filed Friday. Clerk folded on Monday.

Man, if I didn't have my hands full this week, I'd get a van, a couple, and take a road trip into Dumbfuckistan.

June 18, 2015

Despite mourning, statehouse Confederate battle flag remains at full staff

Well, I guess EarlG nailed it:

http://www.postandcourier.com/article/20150618/PC16/150619374/1006/

The Confederate flag flying at the Statehouse in Columbia became part of the Charleston church massacre story line Thursday after the U.S. and South Carolina flags were lowered in mourning but the rebel banner was left flying at its full height

June 17, 2015

Sydneys Voluptuous Buttocks is worth taking a look at

So, yes, Sydneys Voluptuous Buttocks, unlike Donald Trump, has filed a declaration of candidacy with the Federal Election Commission:


http://www.fec.gov/fecviewer/CandidateCommitteeDetail.do?candidateCommitteeId=P60005931&tabIndex=3

Name: BUTTOCKS, SYDNEYS VOLUPTOUS (O - OPEN)
Office Sought: P - PRESIDENT
Election Year: 2016
State: US - UNITED STATES, District: 00
Party: INDEPENDENT

Digging a little further into Sydneys Buttocks, I found this blog:

http://sydneysbuttaspresident.weebly.com/

While it's not much, I think we are going to see a lot more of Sydneys Voluptuous Buttocks over the next few months.

So far, what's come out of Sydneys Buttocks has been the statement "For World Peace" and this picture of the candidate:



We've been spending too much time talking about joke candidates like Donald T. Rump, and I think it is time for us to get down to business with Sydneys Voluptuous Buttocks.

June 12, 2015

Hillary consorting with felons...

I still think it's way too early, but since it is probably a large collection and will take a while, can we go through the "Here's a picture of Hillary Clinton standing next to someone awful" and therefore her heartfelt and personal endorsement of everything said awful person has ever done?

I'll lead with Martha Stewart:



Okay, that one's out of the way.

Putin:



We'll also need the official repository of "Hillary Clinton pointing to someone she recognizes in a crowd and giving an excited smile" pictures.