Mary Mosley

The number of republican, conservative and libertarian faculty members have plummeted at most schools in the last twenty years. Many top law schools have only a couple conservative faculty members and we have discussed the startling increase in attacks on faculty, trustees, and students (including student publications, editors and columnists) over dissenting views on subjects ranging from critical race theory to police abuse. Nevertheless, the American Association of University Professors’ Journal of Academic Freedom is calling for papers on intolerance on campuses but only by conservatives. The call seems to be an effort to come up with a narrative to deflect from the complaints over the rising orthodoxy and intolerance on our campuses.

The AAUP journal is only interested in examples of “thought control by the Right, the whitewashing of historical narratives, and specific assaults on academic freedom that cut across the K–12 and higher education sectors.” It bases this one-sided solicitation on the “recent upsurge in white ethnonationalism” and “attempt[s] to reenergize white-settler narratives of the nation’s founding while vilifying histories that call attention to slavery, oppression, and dispossession.”  They also cite criticism of the 1619 project and the recent controversy over the hiring of Nikole Hannah-Jones, who have pushed for advocacy journalism that is opposed by many of us.

Rather than study viewpoint intolerance on campuses generally, the journal is calling only for research that supports a narrative that our schools are actually under the yoke of conservative ideology. It is a bizarre claim that has appeared recently in other academic publications. Recently, a Massachusetts history professor declared universities “right-wing institutions.” I have personally been in meetings where such claims were made about the relative absence of liberal scholars on faculties and dominance of conservative ideology at law schools. I once heard a law dean note with a straight face that she was pleasantly surprised to meet a liberal constitutional law scholar for a change.

We have recently discussed a couple examples (here and here) of actions taken against liberal speakers on campus, which were denounced as attacks on free speech values.  However, it borders on the delusional to suggest that our campuses are being controlled by conservative ideology or faculty members. We previously discussed a Gallup poll showing ninety percent of Pomona students said that they did not feel free to speak openly or freely. Pomona is one of the most liberal institutions in the world with a tiny fraction of conservative faculty.

For many of us in the free speech community, it does not matter which side is opposing the expression of viewpoints. I have defended extremist views on academic freedom grounds like those of University of Rhode Island professor Erik Loomis, who has defended the murder of a conservative protester and said that he saw “nothing wrong” with such acts of violence. (Loomis also writes for the site “Lawyers, Guns, and Money.”) I have defended faculty who have made similarly disturbing comments “detonating white people,” denouncing police, calling for Republicans to suffer,  strangling police officers, celebrating the death of conservatives, calling for the killing of Trump supporters, supporting the murder of conservative protesters and other outrageous statements.

The AAUP journal embodies the raw bias that has taken hold on our journals and on our campuses. It is soliciting articles that confirm a view that academic freedom is being threatened by the shrinking numbers of conservative faculty and students in our schools. To secure such opportunities, you must first confirm that you will reach the correct conclusion.

The  AAUP was once a staunch defender of academic freedom. As I discussed in an upcoming law review article, the AAUP was heavily influenced by the writings of Roscoe Pound who led the fight for free speech on campuses at a time when it was the conservatives who were failing to actively protect those on the left in raising dissenting voices. He railed against the view that professors should remain silent on public controversies and objected that “we are getting very intolerant in this country of even necessary freedom of speech.” Pound’s view of free speech would be reflected in the first Declaration of Principles of Academic Freedom in 1915 by the AAUP. The Declaration stressed the protection of free speech and the guarantee of “unfettered discussion” free of the “prescribed inculcation of a particular opinion upon a controverted question.”

Gone are the days of passively watching your favourite sports teams. Fantasy sport platforms have revolutionised the way people engage with sports, and thanks to tournaments such as the IPL,…

The post The Legal Acceptance of Fantasy Sports in India appeared first on Legal Desire.

By Jason Rantanen

This Friday, November 5, the Iowa Innovation, Business & Law Center will be hosting a first-of-its-kind event (to the best of my knowledge at least): a panel discussion by patent law casebook authors about what makes their textbooks tick.  There are at least eight different patent law textbooks with editions published in the last few years, and we’ve brought their authors together to talk.  The program, entitled Patent Law Textbooks: A Micro Symposium, will be live-streamed via Zoom webinar on from 1:30-4 pm Central.  You can preregister or join here: https://tinyurl.com/PatentCasebookPanel.

The symposium will consist of two panels:

Panel 1: Exploring Patent Law Textbooks (1:30 – 2:45 p.m. CT): This panel will feature authors talking about the distinguishing features of their textbooks, the design decisions that they made in creating them, and the pros and cons of self-published and open-access casebooks versus traditional publishers.

Panel 2: Publishing Your Own Textbook.  (3:00 – 4:00 p.m. CT) This panel will feature authors talking about their experiences creating an open-access or self-published textbook and tips for others who are thinking about creating their own open-access or self-published textbook, including why they made the copyright license choices that they did.

These panels will feature authors of the following casebooks:

Martin J. Adelman, Randall R. Rader, & John R. Thomas, Cases and Materials on Patent Law (West Academic 2019)

Daniel H. Brean & Ned Snow, Patent Law: Fundamentals of Doctrine & Policy (Carolina Academic Press 2020)

Sarah Burstein, Sarah R. Wasserman Rajec, & Andres Sawicki, Patent Law: An Open Access Casebook (2021)

John F. Duffy & Robert P. Merges, Patent Law and Policy: Cases and Materials (Carolina Academic Press 2021)

John M. Golden, F. Scott Kieff, Pauline Newman, & Henry E. Smith, Principles of Patent Law: Cases and Materials  (West Academic 2018)

Mark D. Janis, Ted M. Sichelman, et. al., Patent Law: An Open-Source Casebook (Law Carta 2021)

Jonathan S. Masur & Lisa Larrimore Ouellette, Patent Law: Cases, Problems and Materials (2021)

Craig A. Nard, The Law of Patents (Wolters Kluwer 2020)

Hope you can join us!

by Dennis Crouch

CardioNet v. InfoBionic (Fed. Cir. 2021)

CardioNet lost at the district court with a summary judgment of non-infringement. On appeal, the Federal Circuit has shifted its judgment–now finding the heart monitor claims ineligible under Section 101.  U.S. Patent Number 7,941,207.

The patent covers a heart monitor that includes a “T wave filter” that helps make sure the signal processor does not confuse the T-wave with the R-wave.

Asserted claim 20 is directed to a “cardiac monitoring apparatus” with the T wave filter.   In particular, the claim requires four elements:

a communications interface;

a real-time heart beat detector;

a frequency domain T wave filter; and

a selector that activates the T wave filter.

The claim also has a resulting wherein clause: “wherein the activated frequency domain T wave filter preprocesses a cardiac signal provided to the real-time heart beat detector.”

The district court found an abstract idea of “filtering raw cardiogram data to optimize its output;” but concluded that the claim also included a curative “something more” and so survived under Alice step two. In particular, the district court found that the claim was “tied to a machine” and therefore satisfied “the machine-or-transformation test.” On appeal, the Federal Circuit found this to be the wrong test.

The Federal Circuit agreed that the claims are directed to an abstract idea.  In particular, the court effectively held that any computational signal transformation is an abstract idea:

At bottom, filtering the data requires only basic mathematical calculations, such as “decompos[ing] a T wave into its constituent frequencies and multipl[ying] them by a filter frequency response.” And such calculations, even if “[g]roundbreaking,” are still directed to an abstract idea.

Slip Op.   At step two, the Federal Circuit disagreed with the lower court and found that the claimed invention lacked any inventive concept beyond the excluded abstract idea.  On this point, the court noted the existence of prior art for attenuating the T-wave.  In other cases, the court has held that such a comparison with prior art is not relevant to the eligibility inquiry.

Machine or Transformation: In Bilski, the Supreme Court explained that the machine-or-transformation test was an important “clue” to patent eligibility.  However, the court there was clear that machine-or-transformation was not the test.

This Court’s precedents establish that the machine-or-transformation test is a useful and important clue, an investigative tool, for determining whether some claimed inventions are processes under §101. The machine-or-transformation test is not the sole test for deciding whether an invention is a patent-eligible “process.”

Bilski v. Kappos (2010).   In this case, the court found that the claim is “technically tied to a machine” but its focus is actually the abstract signal transformation. The court explained that merely “formulating a claim in the form of an apparatus” does not protect it from eligibility challenge.

To the extent that formulating a claim in the form of an apparatus insulates it from an ineligibility attack if it only recites conventional components for performing an abstract idea, the Supreme Court has closed that door, at least for now.

Slip Op.

This is the third CardioNet case before the Federal Circuit and so the trio offers a good set of comparisons.  Although all three relate to heart monitor patents, the patents and claims differ from one another.

CardioNet v. InfoBionic: Patenting a Diagnostic Tool

The North Carolina Judicial College was founded in 2005 to expand the education and training the School of Government has provided for judicial branch officials since the 1930s. Judicial College funding has enabled the School to provide more courses for a growing court system and to offer training in small group, interactive educational settings.

Our latest annual report, which we recently distributed to judicial officials in hard copy form, highlights our work and the additions to our faculty over the last fiscal year. We though you might want to check it out.

Not surprisingly, most of our instruction in 2020 and the first half of 2021 was delivered virtually. We connected with our audience through webcams and on-line platforms. Nevertheless, those connections remained strong. Nearly 3,000 participants attended our programs, and we continued to publish and advise about laws and procedures central to the administration of justice.

Thank you to the Judicial Branch officials we are privileged to serve and to our partners at the Administrative Office of the Courts for supporting our work.

The post Annual Report from the North Carolina Judicial College appeared first on North Carolina Criminal Law.

Below is my column in the Hill on today’s argument in Whole Woman’s Health v. Jackson and United States v. Texas on the request for an emergency injunction in Texas to block the state’s controversial abortion law. The merits of the law are not at issue in the questions presented today but the decision to push for an injunction comes with some risks for the Biden Administration. [Update: Justice Brett Kavanaugh suggested in oral argument that he might be open to changing existing precedent to allow for injunctions of court clerks to block the Texas law].

Here is the column:

“Is there a way to win?” Those words from actress Jane Greer, the ultimate femme fatale in the 1947 film-noir classic, “Out of the Past,” could well have been written above the caption of the Biden administration’s brief this week before the Supreme Court, seeking to enjoin the Texas abortion law. The administration is returning to ask for an injunction from a court that just voted against such an injunction as legally unfounded.

Asking the same justices the same question would not seem a way to win. Indeed, as actor Robert Mitchum dryly responded to Greer in the film, this may not be the way to win, but at least “there’s a way to lose more slowly.”

For pro-choice advocates, the pending case of Dobbs v. Jackson Women’s Health Organization, out of Mississippi, is a more ominous threat to abortion rights with a newly constituted conservative majority on the court — including Justice Amy Coney Barrett who, as an academic before joining the court, was highly critical of Roe v. Wade. The Dobbs case is due to be argued in December.

However, the Court has been thrown early into the arena by the Biden administration’s emergency demand to seek an injunction of the Texas law, which imposes an even more stringent limit on abortion than the Mississippi law at issue in Dobbs.

As previously discussed, the attempted intervention of the Justice Department in the Texas case was not just legally unnecessary but unwise. I share the view that this law is unconstitutional, and I have long favored more liberal standing rules, but the Biden administration is risking a great deal to enjoin a law that was already declared unconstitutional in Texas. Indeed, the rushed hearing this week could lock in a majority on language impacting the much more important appeal in Dobbs.

The government’s lawsuit raises questions of both whether it can sue and whether a court can remedy constitutional violations at this time. The Texas brief attacks the very claim of an injury with the words “The federal government cannot get an abortion.” By intervening as an actual party, instead of in its traditional role as an amicus or “friend of the court,” the Biden administration unwisely introduced an additional legal controversy into the case. It is claiming the right to challenge any state law that is considered unconstitutional, and to enjoin any state judge or court from considering such cases. The Supreme Court has long been hostile to federal courts enjoining state courts.

To win, the Biden administration must get at least one of five justices to effectively reverse a position taken just weeks ago when they rejected the same injunction in Whole Woman’s Health v. Jackson. The problem is that, unlike other state limitations on abortion, the Texas law is directed at allowing private citizens to enforce a prohibition after six weeks of pregnancy. That prohibition is clearly unconstitutional under current Supreme Court precedent covering the “pre-viability” period of pregnancies. However, since it creates authority for private citizens to sue, there is no agency or government officers who enforce the rule. So, in the earlier case, pro-choice litigants randomly selected a judge and a clerk to enjoin from allowing such lawsuits.

The practical and procedural problems are obvious. First, you would have to enjoin every judge and clerk to stop this law from being used. Second, this is a not-so-subtle evasion of a long-standing rule that the court enjoins people, not laws. That is why five justices declined to issue an injunction despite acknowledging that “The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue.” However, the justices ruled that “their application also presents complex and novel antecedent procedural questions on which they have not carried their burden.”

Even Chief Justice John Roberts, who voted for an injunction with his three liberal colleagues, admitted that it is unclear “whether, under existing precedent, this Court can issue an injunction against state judges asked to decide a lawsuit under Texas’s law.”

Nevertheless, the Biden administration again demanded the same injunction after losing before the United States Court of Appeals for the Fifth Circuit. Moreover, unlike the first attempt, a federal court has already declared the law to be unconstitutional. There is no court that has declared the law enforceable. In addition, the Fifth Circuit has fast tracked arguments on the merits and will hear the case in December.

While perhaps politically popular, the Biden administration’s move could create even more restrictive precedent on its ability to seek such relief. Worse yet, the procedural rule could have blowback on that big case pending on the docket: Dobbs v. Jackson Women’s Health Organization. The majority could note that there is an unlikelihood to prevail on the merits because the law contains an affirmative defense that it cannot be used to impose “an undue burden on a woman or group of women.” That is the current test under the controlling case of Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). (Opponents however argue this reference is part of a section on “limitations” on the use of the defense).

The Biden administration seems to overcome the obvious with the hyperbolic in making the same demand, in hopes of a different outcome: “If Texas is right, no decision of this court is safe.” The problem is that the Texas law was already declared unconstitutional and any person actually subject to its application could quickly secure an injunction. That is usually how such cases come before the court — a party with a cognizable injury seeks judicial relief. It can then move quickly through the system with an injunction in place.

With others challenging this law with direct injuries, there is even less reason for the Biden administration to gamble on this filing. Likewise, there is a second case brought by Whole Woman’s Health that is consolidated in the appeal. That is the same group that was just before the court in September and lost on the same demand.

Playing roulette with reproductive rights may pay off for the administration. Or it might not. But forcing this issue at this stage, and just weeks after the prior rejection in Jackson, does not seem to be “a way to win.” Again, this does not take away from the legitimate concerns of pro-choice advocates: Dobbs may indeed curtail or even set aside Roe v. Wade. Yet, even if there is no way to win entirely, there could be a way to lose more slowly.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.

Two Pennsylvania men have been sentenced for torching a police car and attempting to burn another vehicle during last year’s protests over the murder of George Floyd. That is hardly surprising given videos showing the men involved in the arson. However, the case raises a long-standing concern over the use of federal rather than state charges in such protest cases.

Da’Jon Lengyel, 24, was sentenced Friday to 27 months in prison. Christopher West, 36, of Pittsburgh was ordered to serve four years. West received a more stringent sentence due to prior criminal history.

They pleaded guilty earlier to conspiracy and obstruction of law enforcement during civil disorder in connection to the riot.

Notably, West still faces state charges over allegations that he took a news photographer’s camera. The question however is why these charges were not left in the state system. This was a Pittsburgh police car and the men were arrested by state, not federal, officers.

We previously discussed how state prosecutors have quietly handed over protest cases to federal prosecutors. The shifting of such cases ordinarily will produce longer sentences and, in some cases, insulates local leaders from backlash over prosecuting protesters.

The Biden Administration dropped dozens of protests charges against defendants from the protests last summer. Many of those charges involved efforts to burn or destroy federal buildings, which were more appropriately brought in the federal system.

If you’re anything like me, you had a bumpy road toward paying for your college education. Indeed, the average college graduate these days has about $35,000 in student loan debt, and my wife and I each had about that amount in student loans (along with a few other bank-financed bad decisions). It took us the better part of five years to finally pay them off. One reason I decided to go to law school was to put myself in a position such that my kids might not have to deal with student loans at all. With my first child well on the way, I’ve been exploring the options. One option is the 529 Education Savings Plan, and in particular, an account that is owned by the child’s grandparent. Let’s dig in.

What is a 529 college savings plan?

In short, 529 plans are state-administered, tax-advantaged education savings accounts to help finance education costs for a named beneficiary. Plans can be owned by the beneficiary herself (e.g. the child), her parents, or even her grandparents or some other generous relative or family friend. Because 529 plans are investment vehicles, returns are subject to the volatility of the underlying assets, and a plan could lose money in a downturn.

Contributions to 529 plans aren’t tax deductible, but as long as future withdrawals are used for qualifying education expenses, any earnings will grow completely tax free. Some states will allow an account owner to deduct 529 contributions from taxable income for state income tax purposes.

When it comes to paying for your child’s college expenses, the best type of plan for your situation depends on a number of factors, but in general, a 529 education savings plan provides the greatest flexibility and return on investment. Most of the information in the remainder of this article will focus on the education savings plan option for 529 plans.

What tax advantages do 529 plans provide?

A 529 plan is somewhat similar to a 401(k) retirement account. The account grows tax-free as long as withdrawals meet certain requirements. But unlike a 401(k), you can’t deduct 529 plan contributions from your federal taxable income. That said, many states allow account owners to deduct 529 plan contributions from taxable income for state income tax purposes. For example, my home state of Virginia allows a deduction of up to $4,000 per year per beneficiary for 529 contributions.

How do 529 plans affect financial aid?

Federal student aid is doled out after the Free Application for Federal Student Aid (FAFSA) calculates the student’s Expected Family Contribution (EFC). In determining the amount of federal financial aid a student can receive, FAFSA looks at the overall financial situation of the student and their family. In general, a 529 plan that is owned by either the student or their parents is considered a parental asset and is therefore included in calculating the EFC. In effect, a large 529 savings balance owned by the student or her parents could reduce the amount of federal aid that the student is eligible for. Plans owned by others, including grandparents, are treated a bit differently, as discussed in depth below.

NOTE: Beginning in the 2023 Aid Year (July), the EFC will be replaced by the Student Aid Index (SAI). Really this is just a change in nomenclature to more accurately reflect what the FAFSA is really telling you.

What are the investment options available for 529 plan owners?

Each state administers its own 529 plan (or plans), generally by selecting a plan manager. This is in some ways similar to the 401(k) administrator selected by your employer. Where 529s diverge from 401(k) plans is that the investment options are generally much more limited for a 529 plan. Many states have 529 plans where the owner has a limited set of investment options, such as target enrollment date portfolios.

The limited options seem to be intended to make college savings through a 529 plan simple and automatic, geared toward the novice investor. If you’re a bit more hands-on with your investments, this can be frustrating, as even your financial advisor can’t exercise any greater control over your 529 plan investments than selecting one of the portfolio options. Still, saving for college with a set-it-and-forget-it 529 portfolio might be a low-hassle, pain free solution, even for the experienced investor.

What can 529 distributions be used to pay for?

Distributions from 529 can be used, tax and penalty free, for qualified education expenses. This includes college expenses like tuition and mandatory fees, textbooks, and even computer equipment. Distributions can also be used to pay for up to $10,000 per year in private K-12 education costs or to pay off up to $10,000 of the beneficiary’s student loans. Only the account owner may determine when, if, and in what amount distributions can be made.

If distributions are used for non-qualified expenses, such distributions are subject to income taxes and a 10% penalty. It’s best to stick to qualified expenses.

Who can contribute to your child’s 529 plan?

Regardless of who owns the 529 account (e.g. parent, child, grandparent, etc.), anyone can contribute. This can be a very convenient way to save for your child’s future education costs. Instead of your relatives buying a bunch of toys your child doesn’t need or clothes that she’ll outgrow in two weeks, they can make contributions to a 529 plan set up for your child’s benefit. Grandma and Grandpa can simply write a check and invest in their grandchild’s college education.

Grandparents and 529 plans

If your child’s grandparents, or any other relative or family friend, wants to make regular investments toward your child’s future education expenses, they can reap significant benefits by opening their own 529 account for your child’s benefit.

Do grandparents get any tax benefits from owning a 529 plan?

Like any other 529 savings plan, one owned by the student-beneficiary’s grandparents has significant tax benefits. IRS rules don’t allow grandparents to take a federal tax deduction for 529 plan contributions, but many states allow account owners to take a state income tax deduction for 529 plan contributions.

How can 529 plans be used for estate planning?

Another way 529 savings plans can provide a benefit to grandparents is by removing assets from their taxable estate without relinquishing control. When grandparents open a 529 savings account for a grandchild, they retain complete control over the investments and distributions from the account. Contributions are treated as gifts, subject to the annual gift tax exclusion of $15,000 per beneficiary per year.

So, a married couple could contribute up to $30,000 per year to each of their grandchildren’s 529 accounts. Keeping within the annual gift exclusion limit completely avoids the problems associated with directly leaving an inheritance to a grandchild (known as the Generation Skipping Transfer Tax). With a 529, grandparents can contribute to their grandchild’s education while reducing their own taxable estate and retaining control over investments and distributions.

Account owners can also elect to make one large lump sum contribution of up to $75,000 to a grandchild’s 529 and have it treated as if it had been made in installments over five years. A grandparent could choose to contribute $50,000 this year to her oldest grandchild’s 529, and for gift tax purposes, it would be treated as though the grandparent had made $10,000 per year contributions over a five year period. The grandparent would have $5,000 of the annual exclusion remaining during each of those five years for her oldest grandchild. Interested grandparents would be well advised  to consult with their estate planner or financial advisor to maximize this 529 benefit.

How do grandparent-owned 529 plans affect aid eligibility?

In general, a 529 plan owned by a grandparent has minimal effect on the student-beneficiary’s eligibility for federal student aid. Forthcoming changes, discussed below, reduce the impact even further. Assets in a grandparent-owned 529 plan are not reported on the student-beneficiary’s FAFSA; there is no effect on the student’s financial aid eligibility.

This will remain true after the new FAFSA is rolled out for the 2023 aid year.

For aid years before 2023, students must report distributions from any 529 plan as untaxed income. So, if Grandma distributes funds to her grandson from a 529 plan she owns for his benefit, he must report that distribution on the FAFSA as income. Up to 50% of student income can be considered available for educational expenses.

Beginning in aid year 2023, the only income a student must report on her FAFSA is imported directly from their federal income tax return, so distributions from a grandparent-owned 529 will no longer have any impact on the student’s federal aid eligibility.

What if the student’s parents already have a 529?

If you’ve already set up a 529 educational savings account, you might wonder how your parents can contribute to your child’s educational expense planning. It is perfectly allowable for one child to be the beneficiary of multiple 529 accounts. So both sets of grandparents, aunts and uncles, or anyone else with the means and desire can open a separate 529 plan for the child’s benefit.

Saving for college made easy

A 529 plan is a great way to save for college. It comes with great tax advantages and benefits that extend beyond just the student or their parents. Plus, if your child doesn’t use all of the funds in a 529 account you own, you can easily switch the beneficiary to another child, relative, or even your own grandchild.

Originally posted on Grandparent 529 Plans are Good for Everyone

Biglaw Investor - Personal finances for the aspiring millionaire lawyer

Introduction Rapid urbanization and industrialization along with parallel to rampant increase in population have resulted in environmental pollution and natural resources degradation imposing serious risk to public health and environment…

The post Ella Kissi Debrah Death Case: Environmental Forensic for Invisible Killer appeared first on Legal Desire.

Halloween appears to be back!  Despite the ongoing pandemic, the kids were back this evening — a testament to the healing power of candy.  We bought a dozen bags of candy and we have had to run to the store twice due to the crowd. There are hundreds of kids outside. It is Halloween with a vengeance! 

As usual, I bought my favorite candy (Reece’s Peanut Butter cups) as well as an assortment of other candies. 

Here are some of our understated decorations this year featuring a wedding:

Here is my annual list of Halloween torts and crimes. Halloween of course remains a holiday seemingly designed for personal injury lawyers around the world and this year’s additions show why. Halloween has everything for a torts-filled holiday: battery, trespass, defamation, nuisance, product liability and more. This year, we have the usual fun frights caught on camera, nuisance complaints from “triggered” neighbors, and the occasional misdirected murder investigation. However, there are still some notable additions that raise more legal frights.

So, with no further ado, here is this year’s updated list of actual cases related to Halloween.

In Berea, Ohio, the promoters of the 7 Floors of Hell haunted house at the Cuyahoga County Fairgrounds appreciate realism but one employee took it a bit too far. An actor brandished this real bowie knife as a prop while pretending to stab an 11-year-old boy’s foot. He then stabbed him.

The accident occurred when the actor, 22, approached the boy and stabbed at the ground as a scare tactic. He got too close and accidentally cut through the child’s shoe, piercing a toe.

The injury was not serious since the boy was treated at the scene and continued through the haunted house.

The case raises an interesting question of “respondeat superior” for the negligent acts by employees in the course of employment. The question is what is in the scope of employment.  The question is often whether an employee was on a “detour” or “frolic.”  A detour can be outside of an employer’s policies or guidelines but will be the basis for liability as sufficiently related to the employment.  A frolic is a more serious deviation where the employee is acting in his own capacity or for his own interests.

In this case, the actor was clearly within his scope of employment in trying to scare the visitors. However, he admitted that he bought the knife in his personal capacity and agreed it “was not a good idea” to use it at the haunted house, according to FOX 8. That still does not negate the negligence — both direct and vicarious liability. There was a failure to monitor employees and safeguard the scene. His negligence is also likely attributable to the employer. Finally, this would constitute battery as a reckless, though unintended, act.

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In 2020, parents in Indiana were given a warning in a Facebook post that the Indiana State Police seized holiday edibles featuring packaging that resembles that of actual name brands — but with the word “medicated” printed on the wrapper along with cannabis symbols.

The packaging makes it easy for homeowners to confuse packages and give out drugged candy.  Indeed, last year, two children were given THC-infused gummies while trick-or-treating, according to police in Waterford, Conn.. Such candies include the main active ingredient linked to the psychedelic effects of cannabis – the plant from which marijuana is derived.

Even an accidental distribution of such infused candies would constitute child endangerment and be subject to both negligence and strict liability actions in torts.

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I previously have written how the fear of razor blades in apples appears an urban legend. Well, give it enough time and someone will prove you wrong. That is the allegation of Waterbury, Connecticut police who say that Jason A. Racz, 37, put razor blades in candy bags of at least two trick-or-treaters. Racz’ razor defense may not be particularly convincing to the average juror. According to police, “Racz explained that the razor blades were accidentally spilled or put into the candy bowl he used to hand out candy from.” However, police noted that he “provided no explanation as to how the razor blades were handed out to the children along with the candy.”

The charge was brought soon after Halloween in 2019. Racz is now charged with risk of injury to a minor, reckless endangerment and interfering with a police officer. He could also be charged with battery and intentional infliction of emotional distress, but it is not clear if any children were injured.

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Steven Novak, an artist from Dallas, Texas, believes that Halloween should be a bit more than a traditional plastic pumpkin and a smiling ghost.  Police were called to his home in Texas over a possible murder. They found a dummy impaled on a chainsaw with fake blood; another dummy hanging from his roof; a wheelbarrow full of fake dismembered body parts and other gory scenes.  Neighbors called the display too traumatizing.  Police responded by taking pictures for their families.

A tort action for intentional infliction of emotional distress is likely to fail. There must be not just outrageous conduct but conduct intended to cause severe emotional distress. Courts regularly exclude injuries associated with the exercise of free speech or artistic expression . . . even when accompanied by buckets of fake blood.

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  The Dorney Park and Wildwater Kingdom in Pennsylvania tells customers that, if they come to their Halloween Haunt, “Fear is waiting for you.” In 2019, a new case was filed by Shannon Sacco and her daughter over injuries sustained from “unreasonable scaring.” They are seeking $150,000.

The Allentown Morning Call reported that “M.S.” went with friends to the amusement park and was immediately approached by costumed characters. She said that she told them that she did not want to be scared and backed away. A little further on into the park however a costumed employee allegedly ran up behind her and shouted loudly. The startled girl fell forward and suffered what were serious but unspecified injuries. She alleges ongoing medical issues and inability to return to fully functioning activities. The lawsuit also alleges that the park failed to inform Sacco or her daughter that they could buy a glow-in-the-dark “No Boo” necklace to ward off costumed employees. The obvious issue beyond the alleged negligence of the Park is the plaintiffs’ own conduct. Pennsylvania is a comparative negligence state so contributory negligence by the plaintiffs would not be a bar to recovery. See Pennsylvania General Assembly Statute §7102. However, it is a modified comparative negligence state so they must show that they are 50 percent or less at fault. If they are found 51 percent at fault, they are barred entirely from recovery. Even if they can recover, their damages are reduced by the percentage of their own fault in going to a park during a Halloween-themed event.

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In 2019, there is a rare public petition to shutdown a haunted house that has been declared to be a “torture chamber.” The move to “shut down McKamey Manor” that has been signed by thousands who believe Russ McKamey, the owner of McKamey Manor, has made his house so scary that it constitutes torture, including an allegation of waterboarding of visitors. The haunted house requires participants to get a doctor’s note and sign a 40-page waiver before they enter. People are seeking the closure of the houses located in Summertown, Tennessee and Huntsville, Alabama. McKamey insists that it is just a “crazy haunted house” and stops well short of the legal-definition of torture. The question is whether consent vitiates any extreme frights or contacts.

He is also clear in both the waiver and the website that the house is an “extreme haunted attraction” for legal adults who “must be in GREAT HEALTH to participate.” Not only do people enter with full knowledge but there is no charge. McKamey owns five dogs and only requires a bag of dog food for entry. Presumably the food is cursed.

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An earlier case was recently made public from an accident on October 15, 2011 in San Diego. Scott Griffin and friends went to the Haunted Trail in San Diego. The ticket warns of “high-impact scares” along a mile path with actors brandishing weapons and scary items. Griffen, 44, and his friends went on the trail and were going out of what they thought was an exit. Suddenly an actor jumped out as part of what the attraction called “the Carrie effect” of a last minute scare. While Griffen said that he tried to back away, the actor followed him with a running chain saw. He fell backwards and injured his wrists.

The 2013 lawsuit against the Haunted Hotel, Inc., in the Superior Court of California, County of San Diego, alleged negligence and assault. However, Superior Court Judge Katherine Bacal granted a motion to dismiss based on assumption of the risk. She noted that Griffin “was still within the scare experience that he purchased.” After all, “Who would want to go to a haunted house that is not scary?”

Griffen then appealed and the attorney for the Haunted Hotel quoted Hunter S. Thompson: “Buy the ticket, take the ride.” Again, the court agreed. In upholding the lower court, Justice Gilbert Nares wrote, “Being chased within the physical confines of the Haunted Trail by a chain saw–carrying maniac is a fundamental part and inherent risk of this amusement. Griffin voluntarily paid money to experience it.”

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In 2018, a case emerged in Madison, Tennessee from the Nashville Nightmare Haunted House.   James “Jay” Yochim and three of his pals went to the attraction composed of  four separate haunted houses, an escape room, carnival games and food vendors.  In the attraction, people are chased by characters with chainsaws and other weapons.  They were not surprised therefore when a man believed to be an employee in a Halloween costume handed Tawnya Greenfield a knife and told her to stab Yochim.  She did and thought it was all pretend until blood started to pour from Yochim’s arm. The knife was real and the man was heard apologizing “I didn’t know my knife was that sharp.”

It is not clear how even stabbing with a dull knife would be considered safe.

The attraction issued a statement:

“As we have continued to review the information, we believe that an employee was involved in some way, and he has been placed on leave until we can determine his involvement. We are going over all of our safety protocols with all of our staff again, as the safety and security of all of our patrons is always our main concern. We have not been contacted by the police, but we will cooperate fully with any official investigation.”

The next scary moment is likely to be in the form of a torts complaint.  Negligence against the company under respondeat superior is an obvious start. There is also a novel battery charge where he could claim that he was stabbed by trickery or deceit of a third person. There are also premises liability issues for invitees.  As for Greenfield, she claims to have lacked consent due to a misrepresentation.  She could be charged with negligence or a recklessness-based theory of battery, though that seems less likely.  Finally, there is an interesting possible claim of negligent infliction of emotional distress in being tricked or misled into stabbing an individual.

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Last year, a 21-year-old man surnamed Cheung was killed by a moving coffin in a haunted house in Hong Kong’s Ocean Park.   The attraction is called “Buried Alive” and involves hopping into coffins for a downward slide into a dark and scary space. The ride promises to provide people with the “experience of being buried alive alone, before fighting their way out of their dark and eerie grave.” Cheung took a wrong turn and went backstage — only to be hit by one of the metal coffins.  The hit in the head killed Cheung who was found later in the haunted house.

While there is no word of a tort lawsuit (and tort actions are rarer in Hong Kong), the case is typical of Halloween torts involving haunted houses.  The decor often emphasizes spooky and dark environs which both encourage terror and torts among the participants.  In this case, an obvious claim could be made that it is negligence to allow such easy access to the operational area of the coffin ride — particularly in a dark space.  As a business invitee, Cheung would have a strong case in the United States.

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A previous addition to the Spooky torts was the odd case of Assistant Prosecutor Chris White. White clearly does not like spiders, even fake ones. That much was clear given his response to finding fake spiders scattered around the West Virginia office for Halloween. White pulled a gun and threatened to shoot the fake spiders, explaining that he is “deathly afraid of spiders.” It appears that his arachnophobia (fear of spiders) was not matched by a hoplophobia (fear of firearms).

The other employees were reportedly shaken up and Logan County Prosecuting Attorney John Bennett later suspended White. Bennett said “He said they had spiders everyplace and he said he told them it wasn’t funny, and he couldn’t stand them, and he did indeed get a gun out. It had no clip in it, of course they wouldn’t know that, I wouldn’t either if I looked at it, to tell you the truth.” It is not clear how White thought threatening the decorative spiders would keep them at bay or whether he was trying to deter those who sought to deck out the office in a Halloween theme. He was not charged by his colleagues with a crime but was suspended for his conduct.

This is not our first interaction with White. He was the prosecutor in the controversial (and in my view groundless) prosecution of Jared Marcum, who was arrested after wearing a NRA tee shirt to school.

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Another new case from the last year involves a murder. Donnie Cochenour Jr., 27, got a seasonal break (at least temporarily) on detecting his alleged murder of Rebecca J. Cade, 31. Cade’s body was left hanging on a fence and was mistaken by neighbors as a Halloween decoration. The “decoration” was found by a man walking his dog and reported by construction workers. A large rock was found with blood on it nearby. Donnie Cochenour Jr., 27, was later arrested and ordered held on $2 million bond after he pleaded not guilty to murder.

Cade apparently had known Cochenour since he was a child — a relationship going back 20 years. Cochenour reportedly admitted that they had a physical altercation in the field. Police found a blood trail that indicates that Cade was running from Cochenour and tried to climb the fence in an attempt to get away. She was found hanging from her sleeve and is believed to have died on the fence from blunt force trauma to the head and neck. Her body exhibited “defensive wounds.”

When police arrested Cochenour, they found blood on is clothing. _______________________________________________

In 2015, federal and state governments were cracking down on cosmetic contact lenses to give people spooky eyes. Owners and operators of 10 Southern California businesses were criminally charged in federal court with illegally selling cosmetic contact lenses without prescriptions. Some of the products that were purchased in connection with this investigation were contaminated with dangerous pathogens that can cause eye injury, blindness and loss of the eye. The products are likely to result in a slew of product liability actions.

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Another 2015 case reflects that the scariest part of shopping for Halloween costumes or decorations may be the trip to the Party Store. Shanisha L. Saulsberry sued U.S. Toy Company, Inc. after she was injured shopping for Halloween costumes and a store rack fell on her. The jury awarded Saulsberry $7,216.00 for economic damages. She appealed the damages after evidence of her injuries were kept out of the trial by the court. However, the Missouri appellate court affirmed the ruling.

_________________________________________ The case of Castiglione v. James F. Q., 115 A.D.3d 696, shows a classic Halloween tort. The lawsuit alleged that, on Halloween 2007, the defendant’s son threw an egg which hit the plaintiff’s daughter in the eye, causing her injuries. The plaintiff also brought criminal charges against the defendant’s son arising from this incident and the defendant’s son pleaded guilty to assault in the third degree (Penal Law § 120.00 [2]). However, at his deposition, the defendant’s son denied throwing the egg which allegedly struck the plaintiff’s daughter.

Because of the age of the accused, the case turned on the youthful offender statute (CPL art 720) that provides special measures for persons found to be youthful offenders which provides “Except where specifically required or permitted by statute or upon specific authorization of the court, all official records and papers, whether on file with the court, a police agency or the division of criminal justice services, relating to a case involving a youth who has been adjudicated a youthful offender, are confidential and may not be made available to any person or public or private agency [with certain exceptions not relevant here]” (CPL 720.35 [2]). This covers both the physical documents constituting the official record and the information contained within those documents. Thus, in relation to the Halloween egging, the boy was protected from having to disclose information or answer questions regarding the facts underlying the adjudication ______________________________________________________________

We discussed the perils of pranks and “jump frights,” particularly with people who do not necessarily consent. In the case of Christian Faith Benge, there appears to have been consent in visiting a haunted house. The sophomore from New Miami High School in Ohio died from a prior medical condition at the at Land of Illusion haunted house. She was halfway through the house with about 100 friends and family members when she collapsed. She had an enlarged heart four times its normal size. She also was born with congenital diaphragmatic hernia, which prevents the lungs from developing normally. This added stress to the heart. In such a case, consent and comparative negligence issues effectively bar recovery in most cases. It is a terrible loss of a wonderful young lady. However, some fatalities do not always come with liability and this appears such a case. Source: Journal News

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As discussed earlier, In Franklin County, Tennessee, children may want to avoid the house of Dale Bryant Farris, 65, this Halloween . . . or houses near him. Bryant was arrested after shooting a 15-year-old boy who was with kids toilet-papering their principal’s front yard. Bryant came out of his house a couple of houses down from the home of Principal Ken Bishop and allegedly fired at least two blasts — one hitting a 15-year-old boy in the right foot, inner left knee, right palm, right thigh and right side of his torso above the waistline.

Tennessee is a Castle Doctrine state and we have seen past cases like the notorious Tom Horn case in Texas where homeowners claimed the right to shoot intruders on the property of their neighbors. It is not clear if Bryant will argue that he was trying to stop intruders under the law, but it does not appear a good fit with the purpose or language of the law. Farris faces a charge of aggravated assault and another of reckless endangerment. He could also face civil liability from the boy’s family. This would include assault and battery. There is a privilege of both self-defense and defense of others. This privilege included reasonable mistaken self-defense or defense of others. This would not fit such a claim since he effectively pursued the boys by going to a neighbor’s property and there was no appearance of a threat or weapon since they were only armed with toilet paper.

The good news is that Farris can now discard the need for a costume. He can go as himself at Halloween . . . as soon as he is out of jail. _____________________________________________________ As shown below, Halloween nooses have a bad record at parties. In 2012, a club called Pink Punters had a decorative noose that it had used for a number of years that allowed party goers to take pictures as a hanging victim on Halloween. Of course, you guessed it. A 25-year old man was found hanging from the noose in an accidental self-lynching at the nightclub in England.

The case would appear easy to defend in light of the assumption of the risk and patent danger. The noose did not actually tighten around necks. Moreover, this is England where tort claims can be more challenging. In the United States, however, there would remain the question of a foreseeable accident in light of the fact that patrons are drinking heavily and drugs are often present at nightclubs. Since patrons are known to put their heads in the noose, the combination is intoxication and a noose is not a particularly good mix.

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Grant v. Grant.

A potential criminal and tort case comes to us from Pennsylvania where, at a family Halloween bonfire, Janet Grant spotted a skunk and told her son Thomas Grant to fetch a shotgun and shoot it. When he returned, Janet Grant shined a flashlight on the animal while her son shot it. It was only then that they discovered that Thomas Grant had just shot his eight-year-old cousin in her black and white Halloween costume. What is amazing is that authorities say that they are considering possible animal gaming charges.

Fortunately, the little girl survived with a wound to the shoulder and abdomen.

The police in Beaver County have not brought charges and alcohol does not appear to have been a factor.

Putting aside the family connection (which presumably makes the likelihood of a lawsuit unlikely), there is a basis for both battery and negligence in such a wounding. With children in the area, the discharge of the firearm would seem pretty unreasonable even with the effort to illuminate “the animal.” Moreover, this would have to have been a pretty large skunk to be the size of an eight-year-old child.

Just for the record, the average weight of a standard spotted skunk in that area is a little over 1 pound. The biggest skunk is a hog-nosed skunk that can reach up to 18 pounds.

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We also have a potential duel case out of Aiken, South Carolina from one year ago. A 10-year-old Aiken trick-or-treater pulled a gun on a woman who joked that she wanted take his candy on Halloween. Police found that his brother, also ten, had his own weapon.

The 28-year-old woman said that she merely joked with a group of 10 or so kids that she wanted their candy when the ten-year-old pulled out a 9 mm handgun and said “no you’re not.” While the magazine was not in the gun, he had a fully loaded magazine in his possession. His brother had the second gun. Both appear to have belonged to their grandfather.

The children were released to their parents and surprisingly there is no mention of charges against the grandfather. While the guns appear to have been taken without his permission, it shows great negligence in the handling and storage of the guns.

What would be interesting is a torts lawsuit by the woman for assault against the grandfather. The actions of third parties often cut off liability as a matter of proximate causation, though courts have held that you can be liable for creating circumstances where crimes or intentional torts are foreseeable. For example, a landlord was held liable in for crimes committed in his building in Kline v. 1500 Massachusetts Avenue. Here the grandfather’s negligence led to the use of the guns by these children. While a lawsuit is unlikely, it would certainly be an interesting — and not unwarranted — claim.

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Tauton High School District

The Massachusetts case of Smith v. Taunton High School involves a Halloween prank gone bad. A teacher at Taunton High School asked a 15-year-old student to answer a knock on the classroom door. The boy was startled when he came face to face with a man in a mask and carrying what appeared to be a running chainsaw. The student fell back, tripped and fractured a kneecap. His family is now suing though the state cap on such lawsuits is $100,000.

Dussault said the family is preparing a lawsuit, but is exploring ways to avoid a trial and do better than the $100,000 cap when suing city employees. This could make for an interesting case, but would be better for the Plaintiffs as a bench versus a jury trial. Many jurors are likely to view this as simply an attempt at good fun by the teacher and an unforeseeable accident.

Source: CBS

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In Florida, a woman has sued for defamation, harassment and emotional distress after her neighbor set up decorations that included an insane asylum sign that pointed to her yard and a fake tombstone with an inscription she viewed as a reference to her single status. It read, “At 48 she had no mate no date/ It’s no debate she looks 88.”

This could be a wonderful example of an opinion defense to defamation. As for emotional distress, I think the cause of the distress pre-dates Halloween.

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Pieczonka v. Great America (2012)

A family is suing Great America for a tort in 2011 at Great Falls. Father Marian Pieczonka alleged in his complaint that his young daughter Natalie was at the park in Gurnee, Illinois for the Halloween-themed Fright Fest when a park employee dressed in costume jumped out of a port-a-potty and shot her with a squirt gun. He then reported chased the screaming girl until she fell and suffered injuries involving scrapes and bruises. The lawsuit alleges negligence in encouraging employees to chase patrons given the tripping hazards.

They are asking $30,000 in the one count complaint but could face assumption or comparative negligence questions, particularly in knowingly attending an event called “Fright Fest” where employees were known to jump out at patrons.

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A lawsuit appears inevitable after a tragic accident in St. Louis where a 17-year-old girl is in a critical condition after she became tangled in a noose at a Halloween haunted house called Creepyworld. The girl was working as an actress at the attraction and was found unconscious. What is particularly chilling is that people appeared to have walked by her hanging in the house and thought she was a realistic prop.

Notably, the attraction had people walk through to check on the well-being of actors and she was discovered but not for some time after the accident. She is in critical condition. Creepyworld employs 100 people and can expect a negligence lawsuit.

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Rabindranath v. Wallace (2010)

Peter Wallace, 24, was returning on a train with fellow Hiberinian soccer fans in England — many dressed in costumes (which the English call “fancy dress.”) One man was dressed as a sheep and Wallace thought it was funny to constantly flick his lighter near the cotton balls covering his body — until he burst into flames. Friends then made the matter worse by trying to douse the flames but throwing alcohol on the flaming man-sheep. Even worse, the victim Arjuna Rabindranath, 24, is an Aberdeen soccer fan. Rabindranath’s costume was composed of a white tracksuit and cotton wool.

Outcome: Wallace is the heir to a large farm estate and agreed to pay damages to the victim, who experienced extensive burns.

What is fascinating is the causation issue. Here, Wallace clearly caused the initial injury which was then made worse by the world’s most dim-witted rescue attempt in the use of alcohol to douse a fire. In the United States, the original tortfeasor is liable for such injuries caused by negligent rescues. Indeed, he is liable for injured rescuers. The rescuers can also be sued in most states. However, many areas of Europe have good Samaritan laws protecting such rescuers. Notably, Wallace had a previous football-related conviction which was dealt with by a fine. In this latest case, he agreed to pay 25,000 in compensation.

The case is obviously similar to one of our prior Halloween winners below: Ferlito v. Johnson & Johnson

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Perper v. Forum Novelties (2010)

Sherri Perper, 56, of Queens, New York has filed a personal injury lawsuit due to defective shoes allegedly acquired from Forum Novelties. The shoes were over-sized clown shoes that she was wearing as part of her Halloween costume in 2008. She tripped and fell.

She is reportedly claiming that the shoes were dangerous. While “open and obvious” is no longer an absolute defense in such products cases, such arguments may still be made to counter claims of defective products. In most jurisdictions, you must show that the product is more dangerous than the expectations of the ordinary consumer. It is hard to see how Perper could be surprised that it is a bit difficult to walk in over-sized shoes. Then there is the problem of assumption of the risk.

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Dickson v. Hustonville Haunted House and Greg Walker (2009) Glenda Dickson, 51, broke four vertebrae in her back when she fell out of a second story window left open at the Hustonville Haunted House, owned by Greg Walker.

Dickson was in a room called “The Crying Lady in the Bed” when one of the actors came up behind the group and started screaming. Everyone jumped in fright and Dickson jumped back through an open window that was covered with a sheet — a remarkably negligent act by the haunted house operator. She landed on a fire escape and then fell down some stairs.

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Maryland v. Janik (2009)

Sgt. Eric Janik, 37, went to a haunted house called the House of Screams with friends and when confronted by a character dressed as Leatherface with a chainsaw (sans the chain, of course), Janik pulled out his service weapon and pointed it at the man, who immediately dropped character, dropped the chainsaw, and ran like a bat out of Halloween Hell.

Outcome: Janik is charged with assault and reckless endangerment for his actions. Charges pending.

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Patrick v. South Carolina (2009) Quentin Patrick, 22, an ex-convict in Sumter, South Carolina shot and killed a trick-or-treater T.J. Darrisaw who came to his home on Halloween — spraying nearly 30 rounds with an assault rifle from inside his home after hearing a knock on the door. T.J.’s 9-year- old brother, Ahmadre Darrisaw, and their father, Freddie Grinnell, were injured but were released after being treated at a hospital.

Patrick left his porch light on — a general signal for kids that the house was open for trick and treating. The boy’s mother and toddler sibling were in the car.

Patrick emptied the AK-47 — shooting at least 29 times through his front door, walls and windows after hearing the knock. He said that he had been previously robbed. That may be so, but it is unclear what an ex-con was doing with a gun, let alone an AK-47.

OUTCOME: Charges pending for murder.

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Kentucky v. Watkins (2008)

As a Halloween prank, restaurant manager Joe Watkins of the Chicken Ranch in Paris, Kentucky thought it was funny to lie in a pool of blood on the floor. After seeing Watkins on the floor, the woman went screaming from the restaurant to report the murder. Watkins said that the prank was for another employee and that he tried to call the woman back on her cell phone.

OUTCOME: Under Kentucky law, a person can be charged with a false police report, even if he is not the one who filed it. The police charged Watkins for causing the woman to file the report — a highly questionable charge.

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Mays v. Gretna Athletic Boosters␣95-717 (La.App. 5 Cir. 01/17/96)

“Defendant operated a haunted house at Mel Ott Playground in Gretna to raise money for athletic programs. The haunted house was constructed of 2×4s and black visqueen. There were numerous cubbyholes where “scary” exhibits were displayed. One booster club member was stationed at the entrance and one at the exit. Approximately eighteen people participated in the haunted house by working the exhibits inside. Near and along the entrance of the haunted house was a bathroom building constructed of cinder blocks. Black visqueen covered this wall.

Plaintiff and her daughter’s friend, about 10 years old, entered the haunted house on October 29, 1988. It was nighttime and was dark inside. Plaintiff testified someone jumped out and hollered, scaring the child into running. Plaintiff was also frightened and began to run. She ran directly into the visqueen-covered cinder block wall.

There was no lighting in that part of the haunted house. Plaintiff hit the wall face first and began bleeding profusely from her nose. She testified two surgeries were required to repair her nose.”

OUTCOME: In order to get the proper effect, haunted houses are dark and contain scary and/or shocking exhibits. Patrons in a Halloween haunted house are expected to be surprised, startled and scared by the exhibits but the operator does not have a duty to guard against patrons reacting in bizarre, frightened and unpredictable ways. Operators are duty bound to protect patrons only from unreasonably dangerous conditions, not from every conceivable danger.

As found by the Trial Court, defendant met this duty by constructing the haunted house with rooms of adequate size and providing adequate personnel and supervision for patrons entering the house. Defendant’s duty did not extend to protecting plaintiff from running in a dark room into a wall. Our review of the entire record herein does not reveal manifest error committed by the Trial Court or that the Trial Court’s decision was clearly wrong. Plaintiff has not shown the haunted house was unreasonably dangerous or that defendant’s actions were unreasonable. Thus, the Trial Court judgment must be affirmed.

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Powell v. Jacor Communications␣

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

320 F.3d 599 (6th Cir.2003)

“On October 15, 1999, Powell visited a Halloween season haunted house in Lexington, Kentucky that was owned and operated by Jacor. She was allegedly hit in the head with an unidentified object by a person she claims was dressed as a ghost. Powell was knocked unconscious and injured. She contends that she suffered a concussion and was put on bed rest and given medications by emergency-room physicians. Powell further claims that she now suffers from several neuropsychological disorders as a result of the incident.”

OUTCOME: Reversed dismissal on the basis of tolling of statute of limitations.

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Kansas City Light & Power Company v. Trimble␣

315 Mo. 32; 285 S.W. 455 (1926)

Excerpt: “A shapely pole to which, twenty-two feet from the ground is attached a non-insulated electric wire . . Upon a shapely pole were standard steps eighteen inches apart; about seventeen feet from the ground were telephone wires, and five feet above them was a non-insulated electric light wire. On Halloween, about nine o’clock, a bright fourteen-year-old boy and two companions met close to the pole, and some girls dressed as clowns came down the street. As they came near the boy, saying, “Who dares me to walk the wire?” began climbing the pole, using the steps, and ascended to the telephone cables, and thereupon his companions warned him about the live wire and told him to come down. He crawled upon the telephone cables to a distance of about ten feet from the pole, and when he reached that point a companion again warned him of the live wire over his head, and threatened to throw a rock at him and knock him off if he did not come down. Whereupon he turned about and crawled back to the pole, and there raised himself to a standing position, and then his foot slipped, and involuntarily he threw up his arm, his hand clutched the live wire, and he was shocked to death.”

OUTCOME:

Frankly, I am not sure why the pole was so “shapely” but the result was disappointing for the plaintiffs. Kansas City Light & Power Company v. Trimble: The court held that the appellate court extended the attractive nuisance doctrine beyond the court’s ruling decisions. The court held that appellate court’s opinion on the contributory negligence doctrine conflicted with the court’s ruling decisions. The court held that the administrator’s case should never have been submitted to the jury. The court quashed the appellate opinion.

“To my mind it is inconceivable that a bright, intelligent boy, doing well in school, past fourteen years of age and living in the city, would not understand and appreciate the fact that it would be dangerous to come in contact with an electric wire, and that he was undertaking a dangerous feat in climbing up the pole; but even if it may be said that men might differ on that proposition, still in this case he was warned of the wire and of the danger on account of the wire and that, too, before he had reached a situation where there was any occasion or necessity of clutching the wire to avoid a fall. Not only was he twice warned but he was repeatedly told and urged to come down.”

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Purtell v. Mason␣ 2006 U.S. Dist. LEXIS 49064 (E.D. Ill. 2006)

“The Purtells filed the present lawsuit against Defendant Village of Bloomingdale Police Officer Bruce Mason after he requested that they remove certain Halloween tombstone “decorations” from their property. Evidence presented at trial revealed that the Purtells placed the tombstones referring to their neighbors in their front yard facing the street. The tombstones specifically referred to their neighbors, who saw the language on the tombstones. For instance, the tombstone that referred to the Purtells’ neighbor James Garbarz stated:

Here Lies Jimmy, The OlDe Towne IdioT MeAn As sin even withouT his Gin No LonGer Does He wear That sTupiD Old Grin . . . Oh no, noT where they’ve sent Him!

The tombstone referring to the Purtells’ neighbor Betty Garbarz read:

BeTTe wAsN’T ReADy, BuT here she Lies Ever since that night she DieD. 12 feet Deep in this trench . . . Still wasn’T Deep enough For that wenches Stench!

In addition, the Purtells placed a Halloween tombstone in their yard concerning their neighbor Diane Lesner stating:

Dyean was Known for Lying So She was fried. Now underneath these daises is where she goes crazy!!

Moreover, the jury heard testimony that Diane Lesner, James Garbarz, and Betty Garbarz were upset because their names appeared on the tombstones. Betty Garbarz testified that she was so upset by the language on the tombstones that she contacted the Village of Bloomingdale Police Department. She further testified that she never had any doubt that the “Bette” tombstone referred to her. After seeing the tombstones, she stated that she was ashamed and humiliated, but did not talk to Jeffrey Purtell about them because she was afraid of him.

Defense counsel also presented evidence that the neighbors thought the language on the tombstones constituted threats and that they were alarmed and disturbed by their names being on the tombstones. James Garbarz testified that he interpreted the “Jimmy” tombstone as a threat and told the police that he felt threatened by the tombstone. He also testified that he had concerns about his safety and what Jeffrey Purtell might do to him.”

OUTCOME: The court denied the homeowners’ post-trial motion for judgment as a matter of law pursuant to and motion for a new trial. Viewing the evidence and all reasonable inferences in a light most favorable to Officer Mason, a rational jury could conclude that the language on the tombstones constituted threats, that the neighbors were afraid of Jeffrey Purtell, and that they feared for their safety. As such the Court will not disturb the jury’s conclusion that the tombstones constituted fighting words — “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”

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Goodwin v. Walmart

2001 Ark. App. LEXIS 78

“On October 12, 1993, Randall Goodwin went to a Wal-Mart store located on 6th Street in Fayetteville, Arkansas. He entered through the front door and walked toward the sporting goods department. In route, he turned down an aisle known as the seasonal aisle. At that time, it was stocked with items for Halloween. This aisle could be observed from the cash registers. Mr. Goodwin took only a few steps down the aisle when he allegedly stepped on a wig and fell, landing on his right hip. As a result of the fall, Mr. Goodwin suffered severe physical injury to his back, including a ruptured disk. Kelly Evans, an employee for appellee, was standing at the end of her check-out stand when Mr. Goodwin approached her and informed her that he had fallen on an item in the seasonal aisle. She stated that she “saw what he was talking about.”

OUTCOME: Judgment affirmed because the pleadings, depositions, and related summary judgment evidence did not show that there was any genuine issue of material fact as appellant customer did not establish a plastic bag containing the Halloween wig which allegedly caused him to slip and fall was on the floor as the result of appellee’s negligence or it had been on the floor for such a period of time that appellee knew or should have known about it.

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Eversole v. Wasson␣ 80 Ill. App. 3d 94 (Ill. 1980)

Excerpt: “The following allegations of count I, directed against defendant Wasson, were incorporated in count II against the school district: (1) plaintiff was a student at Villa Grove High School which was controlled and administered by the defendant school district, (2) defendant Wasson was employed by the school district as a teacher at the high school, (3) on November 1, 1978, at approximately 12:30 p.m., Wasson was at the high school in his regular capacity as a teacher and plaintiff was attending a regularly scheduled class, (4) Wasson sought and received permission from another teacher to take plaintiff from that teacher’s class and talk to him in the hallway, (5) once in the hallway, Wasson accused plaintiff of being one of several students he believed had smashed Wasson’s Halloween pumpkin at Wasson’s home, (6) without provocation from plaintiff, Wasson berated plaintiff, called him vile names, and threatened him with physical violence while shaking his fist in plaintiff’s face which placed plaintiff in fear of bodily injury, (7) Wasson then struck plaintiff about the head and face with both an open hand and a closed fist and shook and shoved him violently, (8) as a result, plaintiff was bruised about the head, neck, and shoulders; experienced pain and suffering in his head, body, and limbs; and became emotionally distraught causing his school performance and participation to be adversely affected . . .”

OUTCOME: The court affirmed that portion of the lower court’s order that dismissed the count against the school district and reversed that portion of the lower court’s order that entered a judgment in bar of action as to this count. The court remanded the case to the lower court with directions to allow the student to replead his count against the school district.

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Holman v. Illinois

47 Ill. Ct. Cl. 372 (1995)

“The Claimant was attending a Halloween party at the Illinois State Museum with her grandson on October 26, 1990. The party had been advertised locally in the newspaper and through flier advertisements. The advertisement requested that children be accompanied by an adult, to come in costume and to bring a flashlight. The museum had set up different display rooms to hand out candy to the children and give the appearance of a “haunted house.” The Claimant entered the Discovery Room with her grandson.

Under normal conditions the room is arranged with tables and low-seated benches for children to use in the museum’s regular displays. These tables and benches had been moved into the upper-right-hand corner of the Discovery Room next to the wall. In the middle of the room, there was a “slime pot” display where the children received the Halloween treat. The overhead fluorescent lights were turned off; however, the track lights on the left side of the room were turned on and dim. The track lights on the right side of the room near the tables and benches were not lit. The room was dark enough that the children’s flashlights could be clearly seen. There were approximately 40-50 people in the room at the time of the accident.

The Claimant entered the room with her grandson. They proceeded in the direction of the pot in the middle of the room to see what was going in the pot. Her grandson then ran around the pot to the right corner toward the wall. As the Claimant followed, she tripped over the corner of a bench stored in that section of the room. She fell, making contact with the left corner of the bench. She experienced great pain in her upper left arm. The staff helped her to her feet. Her father was called and she went to the emergency room. Claimant has testified that she did not see the low-seating bench because it was so dimly lit in the Discovery Room. The Claimant was treated at the emergency room, where she was diagnosed with a fracture of the proximal humeral head of her left arm as a result of the fall. Claimant returned home, but was unable to work for 12 to 13 weeks.”

OUTCOME: “The Claimant has met her burden of proof. She has shown by a preponderance of the evidence that the State acted negligently in placing furnishings in a dimly-lit room where visitors could not know of their location. The State did not exercise its duty of reasonable care. For the foregoing reasons, the Claimant is granted an award of $20,000.”

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Ferlito v. Johnson & Johnson

771 F. Supp. 196 “Plaintiffs Susan and Frank Ferlito, husband and wife, attended a Halloween party in 1984 dressed as Mary (Mrs. Ferlito) and her little lamb (Mr. Ferlito). Mrs. Ferlito had constructed a lamb costume for her husband by gluing cotton batting manufactured by defendant Johnson & Johnson Products (“JJP”) to a suit of long underwear. She had also used defendant’s product to fashion a headpiece, complete with ears. The costume covered Mr. Ferlito from his head to his ankles, except for his face and hands, which were blackened with Halloween paint. At the party Mr. Ferlito attempted to light his cigarette by using a butane lighter. The flame passed close to his left arm, and the cotton batting on his left sleeve ignited. Plaintiffs sued defendant for injuries they suffered from burns which covered approximately one-third of Mr. Ferlito’s body.”

OUTCOME: Ferlito v. Johnson & Johnson: Plaintiffs repeatedly stated in their response brief that plaintiff Susan Ferlito testified that “she would never again use cotton batting to make a costume.” Plaintiffs’ Answer to Defendant JJP’s Motion for J.N.O.V., pp. 1, 3, 4, 5. However, a review of the trial transcript reveals that plaintiff Susan Ferlito never testified that she would never again use cotton batting to make a costume. More importantly, the transcript contains no statement by plaintiff Susan Ferlito that a flammability warning on defendant JJP’s product would have dissuaded her from using the cotton batting to construct the costume in the first place. At oral argument counsel for plaintiffs conceded that there was no testimony during the trial that either plaintiff Susan Ferlito or her husband, plaintiff Frank J. Ferlito, would  have acted any different if there had been a flammability warning on the product’s package. The absence of such testimony is fatal to plaintiffs’ case; for without it, plaintiffs have failed to prove proximate cause, one of the essential elements of their negligence claim.

In addition, both plaintiffs testified that they knew that cotton batting burns when it is exposed to flame. Susan Ferlito testified that she knew at the time she purchased the cotton batting that it would burn if exposed to an open flame. Frank Ferlito testified that he knew at the time he appeared at the Halloween party that cotton batting would burn if exposed to an open flame. His additional testimony that he would not have intentionally put a flame to the cotton batting shows that he recognized the risk of injury of which he claims JJP should have warned. Because both plaintiffs were already aware of the danger, a warning by JJP would have been superfluous. Therefore, a reasonable jury could not have found that JJP’s failure to provide a warning was a proximate cause of plaintiffs’ injuries.

The evidence in this case clearly demonstrated that neither the use to which plaintiffs put JJP’s product nor the injuries arising from that use were foreseeable.

But in Trivino v. Jamesway Corporation, the following result:

The mother purchased cosmetic puffs and pajamas from the retailer. The mother glued the puffs onto the pajamas to create a costume for her child. While wearing the costume, the child leaned over the electric stove. The costume caught on fire, injuring the child. Plaintiffs brought a personal injury action against the retailer. The retailer filed a third party complaint against the manufacturer of the puffs, and the puff manufacturer filed a fourth party complaint against the manufacturer of the fibers used in the puffs. The retailer filed a motion for partial summary judgment as to plaintiffs’ cause of action for failure to warn. The trial court granted the motion and dismissed the actions against the manufacturers. On appeal, the court modified the judgment, holding that the mother’s use of the puffs was not unforeseeable as a matter of law and was a question for the jury. The court held that because the puffs were not made of cotton, as thought by the mother, there were fact issues as to the puffs’ flammability and defendants’ duty to warn. The court held that there was no prejudice to the retailer in permitting plaintiffs to amend their bill of particulars.

OUTCOME: The court modified the trial court’s judgment to grant plaintiffs’ motion to amend their bill of particulars, deny the retailer’s motion for summary judgment, and reinstate the third party actions against the manufacturers.

There is a troubling report in The New York Times of another free speech fight on one of our campuses. Three University of Florida political science professors have told a federal court that the university barred them from assisting plaintiffs in a challenge to the state’s new voting laws. As state employees, they were told that litigating against a state law would be “adverse to U.F.’s interests.” That is a departure from long-standing practices at state universities. It constitutes an obvious attack on the free speech and associational rights of these faculty members as well as academic freedom. The plaintiffs in the challenge wanted to retain Daniel Smith (the chair of the university’s political science department), Michael McDonald, and Sharon Wright Austin.They asked for permission from the dean of the university’s college of arts and sciences, David E. Richardson, who rejected the requests on the grounds that “outside activities that may pose a conflict of interest to the executive branch of the state of Florida create a conflict for the University of Florida.”

The faculty members, however, noted that approval was granted in 2018 in litigation against the state.

The university spokesperson, Hessy Fernandez, insisted

“The university did not deny the First Amendment rights or academic freedom . . .  Rather, the university denied requests of these full-time employees to undertake outside paid work that is adverse to the university’s interests as a state of Florida institution.”

I disagree.  Professors in state schools routinely assist in research and litigation against state agencies or policies. Law professors often write amicus briefs on constitutional or statutory challenges. Indeed, such work has a long tradition in public interest projects, including death penalty challenges, environmental advocacy, and litigation for equal rights. Universities are not arms of the executive branch like the office of the Florida Attorney General or the department of corrections. They do not bind the government or create waivers on behalf of the state in litigation.

The bar on such expert testimony would also put the state on the slippery slope of censorship. For example, professors write books, research papers, and opinion pieces that are critical of state policies and are often cited in litigation. There is, of course, a distinction between directly participating in a legal challenge and indirectly supporting such a challenge through scholarship. However, if employees cannot assume an “adverse” position to the state, the same logic could be used to bar other forms of academic expression like preparing a “white paper” on possible challenges or directly refuting the data used to support a policy.

Finally, these professors are not basing their research on data or resources that are not available to the public at large. These are not correctional guards using their access to state facilities to help challenge state correctional policies.

There is no compelling reason to bar such work. The state could argue that a jury might view a University of Florida professor as a representative of the state. However, a court can make it clear that the professor is appearing in his own capacity and not as a representative of the state.

Florida’s voting rights changes must rise or fall on their merits. It is in the interest of the public for the best available experts on both sides to be heard.  Some of those experts will come from state schools.

Not only is this rule barring valuable experts from important litigation, but it invites arbitrary or opportunistic decisions. A university could bar faculty based on the content of their views. So three professors supporting the voting rights changes might not be “adverse” and therefore allowed to testify in such a case.

Ironically, the case smacks of an academic version of the recent court martial of Lt. Col. Stuart Scheller Jr. for criticizing the withdrawal from Afghanistan. Unlike the military, however, there is not a tradition of “good order and discipline” in academia that bars criticism of one’s superiors in public. To the contrary, academic positions allow scholars to challenge orthodoxy and authority, including the state itself.

In other words, it is a nightmare for free speech as well as good government values. The decision on the three professors should be rescinded and a new policy promulgated to allow state faculty members the same freedom as faculty members at private universities.

This week, we discussed the case of a surgeon who left an operating room to eat a meal and then fell asleep in his car — missing the operation. Now, there is a new case involving a Democratic representative and surgeon from Maryland who participated in legislative meetings while operating. The multitasking of Dr. Terri Hill, a state delegate and board-certified plastic surgeon, led to a relatively light sanction: a reprimand and a $15,000 fine by the state physician’s board.

In a remote public hearing in February, Hill presented a bill while performing “major abdominal surgery.” According to FOX 45, the Zoom call showed a solid blue background but Hill was shown in her surgical gown. She was recorded saying “I’m at work, yes. You’re at work. I’m at work.”

In a March legislative session, she again appeared in an operating room for a “major abdominal and back surgery.” 

Hill was found to have engaged in “unprofessional conduct in the practice of medicine” in joining at least two Zoom meetings with other lawmakers in the last year during surgeries.

The case is reminiscent of a prior case that we discussed involving Dr. Scott Green who appeared remotely in a Sacramento Superior Court for a trial of a traffic violation during an operation.

In this case, there is an added twist. Hill insists that the patient consented to the bizarre arrangement. However, the patient said that she does not recall such a conversation and thus challenged the account that she consented to multitasking during her own operation. It would certainly seem a curious request of a patient.

Hill accepted the fine but downplayed the offense and punishment as “constructive criticism”:

“As a physician and a professional, I always look for ways to improve my practice. Sometimes this includes accepting constructive criticism from others. I accept the Board’s decision that I could have done better.”

I think that there is little question that she “could have done better.” What is astonishing is that such a clearly unprofessional and dangerous practice is a matter for a simple fine rather than a suspension of her license. The patient denies knowledge of any consent and even the request to allow multitasking in a surgery should be viewed as improper.

There is also a question of legal liability. The operations (as with the one earlier this week) appear to have been successful. The patient quoted in the article could claim trauma after-the-fact but she did receive the services of her chosen doctor and did not appear to have suffered any injury. That would make for a difficult tort case.

Hill represents the state’s 12th Legislative District in Baltimore.

Samford University has cancelled a speaking engagement for historian Jon Meacham, according to Baptist News Global. I have been critical of Meacham’s rhetoric as well as his course materials at Vanderbilt. However, the cancellation of his speech due to his support for pro-choice groups is another example of the rising intolerance on our campuses for opposing viewpoints.  If Meacham’s views are opposed by many on the campus, it is more of a reason to invite him to allow for a diversity of views and values at the university.

The university is a private institution but this is still a blow to free speech even if the First Amendment does not apply.

Meacham received the 2009 Pulitzer Prize for a biography about President Andrew Jackson. He is a regular on MSNBC and other television programs. He has been criticized for his reckless rhetoric in past segments like calling Trump supporters as people operating with “lizard brains.” However, he is an articulate and passionate speaker on contemporary as well as historical issues. I expect he would generate great interest and debate in any campus appearance.

The Nov. 3rd event was supposed to honor the inauguration of the university’s new president, Beck Taylor.  However, various students and groups objected, citing his recent appearance at a Planned Parenthood event in Texas. At the speech, Meacham spoke of the perils facing democracy by conservative movements and the recent anti-abortion law. While many are likely to take offense, the speech was civil and passionate about what he sees as the defining values of our democracy.

Nevertheless, he was criticized as someone whose “beliefs and core values do not align with those of Samford University, as it is a Southern Baptist institution.” If that is so, there is all the more reason for the university to host such alternative viewpoints. Students can voice their opposing views in questions or, outside of the event, in protests. Meacham has always struck me as someone who would not shy away from passionate but respectful disagreements.

Pro-life students have been attacked or silenced repeatedly on campuses (here and here and here and here and here). This is an example of the same intolerance from the opposing side. Rather than cancel Meacham, why not invite a speaker with the opposite viewpoints or arrange a forum for the expression of such views? Universities are supposed to be forums for a diversity of values and views. This cancellation is inimical to that defining intellectual mission.

I was testing out westlaw's "atleast#" search function and ended up with this chart on how often the Federal Circuit uses the term "patent" in its patent-focused decisions. pic.twitter.com/M6RuVk2fZJ

— Dennis Crouch (@patentlyo) October 29, 2021

For these numbers, I aggregated all opinions filed with each decision.  The leading decision appears to be Aqua Products, Inc. v. Matal, 872 F.3d 1290 (Fed. Cir. 2017) with several hundred “patent” repeats across the four opinions in that en banc decision.

(MSNBC/via YouTube)

 Yesterday I wrote about reports that Virginia Democratic gubernatorial candidate Terry McAuliffe’s campaign retained the services of former Clinton counsel Marc Elias. The hiring was astonishing not only because of Elias’ controversial record but a still ongoing special counsel investigation touching on his role in the last election. Elias has challenged past elections and I raised the question of whether he might be part of post-election challenges. When Fox News asked the McAuliffe campaign, the response was . . . well . . . a killer.

The campaign responded to Fox reporter Tyler O’Neil with an email sent by McAuliffe spokesperson Christina Freundlich asking “can we try to kill this.”  She later sent out an email which seemed to claim success in spiking the story without having to respond to questions about Elias’ record.

On its face, it seemed like the McAuliffe campaign was asking Fox to kill the story in a Twitteresque fashion. After all, many in the media killed the Hunter Biden laptop story before the election.  Indeed, even journalism deans have called on reporters to kill stories rather than respond to the merits.

If that seems an unlikely request to Fox News, there is the alternative possibility that Freundlich meant the response to go to media allies or campaign staff to see if they could somehow kill the story. If so, it was a chilling first response to the column. It had that Shakespearean Dick the Butcher feel to it: the first thing we do is kill all the lawyer stories.

The greater controversy however remains the hiring of Elias for any election purpose when a special prosecutor is still in the field presumably looking, among other things, at Elias’ role in the 2020 election. (Elias is not the sole or primary focus of the investigation, which is looking at origins of the Russian conspiracy theories before the last election).

McAuliffe does not appear disturbed by Elias’ highly controversial career or his possible exposure in the Durham investigation. Elias’ former law partner at Perkins Coie was just indicted by Durham. Even if he is not indicted like his former partner, Elias is likely to be featured in any report.

I do not disparage any campaign for lawyering up in what could be a close election and there are a host of pre-election and post-election matters for counsel to address. This is particularly true in the state with recent changes in voting rules. However, there remains the question of why McAuliffe would hire Elias in the midst of the special counsel investigation. That is putting aside the allegations of reporters that Elias and the Clinton campaign lied to them to conceal the funding of the Steele dossier before the last election.

While Elias has denounced Republicans challenging elections, he has unsuccessfully challenged elections where the Republicans prevailed.  He was previously sanctioned by a court in a case challenging a Texas voting law.

After Freundlich asked Fox “Can we try to kill this,” Fox said that she sent an email stating “To dispute the challenges of the election.” Fox described it as “ostensibly responding to an email that did not go through to Fox News.” (For the record, I appear as a Fox contributor).

Freundlich then sent out an equally cryptic tweet saying “I think it’s clear based on this story that we did in fact…kill the story.”  That would suggest that she was asking Fox (and others) to simply kill the story.

It is not clear if Freundlich is saying that she was able to get most of the media to kill the story even while openly calling for (and then celebrating) that blackout. There are some newspapers like the New York Post which ran the story but it is not clear if the Washington Post or other media will do so.  It is doubtful that such media would show the same restraint if a sanctioned Trump lawyer was hired by Youngkin to help manage election issues or challenges.

Elias has enjoyed such protection from inquiry in the past. One of the most glaring examples occurring recently on CNN when its media correspondent Brian Stelter asked Elias “what should we be doing differently?” in covering elections. Stelter accepted Elias’ portrayal of his past work as “pro-democracy” and never asked him about objections from other reporters that he and the campaign lied about the Steele Dossier before the presidential election. Elias called on the media to report with a “pro-democracy slant.”  It is an open call for bias and just assumes that Elias’ work is pro-democracy and, by extension, those who oppose his work are anti-democracy.

Below is my column in the Hill on the renewed effort to pass a wealth tax by the Biden Administration. The effort to tax “unrealized capital gains” has been growing for months as an alternative to Elizabeth Warren’s wealth tax. However, it raises similar constitutional questions. What was most notable is that the new tax was simply put into the Senate bill with the support of the Biden Administration without a single hearing or debate. That led to objections from figures like the Chair of the House Ways and Means Committee Rep. Richard Neal who noted that it was not vetted or studied. It is not part of the House bill. However, many are still pushing the concept despite the significant questions over its constitutionality.

Here is the column:

President Joe Biden has struggled to get the massive new spending bill through Congress with a pitch that would make Joe Isuzu blush: “We talk about price tags. It is zero price tag” and “My Build Back Better agenda costs zero dollars.” The trillions in spending is “free” — according to Biden — because others will pay for it. It’s like claiming your college tuition was free because your parents got the bill.

Biden is hardly the first politician to shrug off spending by saying “the rich will pay for it.” Indeed, during the Democratic primary, the candidates lined up behind figures like New York Mayor Bill De Blasio declaring “we will tax the hell out of the wealthy.” Of course, the “eat the rich” mantra has been part of politics for over 200 years. What is different now is that President Biden has embraced a plan to tax the rich that is not just unworkable and unprecedented but likely unconstitutional.

The Biden administration appears ready to give up on a massive tax increase — but intends to keep its “freebee” pledge by taxing the “super rich.” However, it is not the target but the tax that is different. The administration wants to tax “unrealized capital gains,” a term akin to oxymorons like “exact estimate,” “openly deceptive,” or — perhaps more apropos with the Biden tax — “going nowhere.”

Biden is suggesting that he will pay for the new spending by taxing people not on what they have earned but what they could earn from selling assets. Most people have assets that increase in value over time. Consider a family home. Over the course of many years, it can easily double in value, but you do not “realize” that money unless you sell it. Biden is suggesting that the government should start taxing you based on any increased value of the things you own, even though you have not actually made that money. It doesn’t matter that the home or stock or art could ultimately go down in value after you are taxed on the higher value. Indeed, if you tax some unrealized gains, you could in extreme cases force people to sell assets like a home to pay the tax on income that they did not make.

The administration has started where few would object: billionaires.

The proposal would apply to fewer than 1,000 individuals who are worth more than $1 billion or have annual incomes above $100 million for three consecutive years. Taxing the appreciating asserts of a bunch of fat cats is hardly a rallying cry for street protests.

The “Wyden plan” would allow for a one-time tax on unrealized gains, with an annual tax on each billionaire’s gain in net worth. Initially, it is expected to address losses, illiquid assets and enforcement; however, the limitations to the super-rich is politically rather than constitutionally driven.

And, if successful, it is unlikely that this untapped source of money would be confined to the Bezos class. It would allow the government to tax wealth.

The point is that the Biden administration is seeking to tax the value of assets rather than income.

In many ways, this is a more creative way to achieve Sen. Elizabeth Warren’s (D-Mass.) long-standing dream of a wealth tax. As I have addressed earlier, the wealth tax runs counter to constitutional limits on the taxation authority of Congress. Article One permits Congress to “lay and collect taxes, duties, imposts and excises.” However, it requires that these “be uniform throughout the United States.” The next section says, “no capitation or other direct tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.” A wealth tax is a “direct tax.”

There are arguments that a wealth tax would be constitutional, and there are cases on both sides of that issue. Advocates cite estate taxes and other forms of taxation. However, there is then the small problem of the 16th Amendment, which states “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.” The 16th amendment was passed after the Supreme Court struck down an income tax as an unapportioned direct tax. The amendment was passed to allow for an expanded federal tax authority, but it was specifically limited to “income.”

While Warren thrilled liberal audiences by promising to go after the “Rembrandts … diamonds and … yachts” of the wealthy, it was practically and constitutionally dubious. Now however, the Biden administration wants to take a less direct and smaller step toward the same such tax. If successful, there would be little to stand in the way of a full wealth tax on all Americans.

Such a tax, however, would have to pass constitutional muster with the Supreme Court, which would have to accept the oxymoronic notion of non-income income. It would also have to sign off on the idea of the government taxing the value of assets that continually fluctuate or change. It is like waiting for a gambler to win a hand at blackjack in Vegas and taking 37 percent of his chips before he can play the next hand.

Underlying this push is the notion that the wealth of individuals is really “our” money being kept from us. That was born out during the last primary debates when Warren made a show of gleefully rubbing her hands together after saying that she would take some of the wealth of her opponent John Delaney, a self-made millionaire worth $65 million. People pay taxes on income when it is earned. They also pay taxes when assets are sold. Now the Biden administration wants to tax assets before they become income — imposing a continual taxation of wealth.

Even law professors pushing this tax admit that it is not clear that it would pass constitutional review. If it didn’t — with Biden’s “free” trillions already spent — the public, already saddled with a deficit in the trillions, could find itself the recipient of a bill for trillions more for what they thought was free tuition, day care and other programs.

Some lies can be harmless, even charming. When Joe Isuzu promised customers that a new car “has more seats than the Astrodome,” you did not have to buy the car. With this new tax, Joe Biden is promising a free car that the public may have to buy whether they like it or not.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.