Every 2.5 Days A Construction Worker Dies in Texas
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Note the warning at the beginning. Nevertheless, countdown to FoxNews meltdown in 3, 2, 1….
[Cross posted at FoxRobBlog, which is involved in some sort of DNS attack. Whatever that is.]
In Yates v. Sweet Potato Enterprises, Inc., 2013 WL 3662645 (N.D. Cal. July 12, 2013), the plaintiff — a guy who uses a wheelchair — alleges that he encountered barriers at a Popeyes restaurant. In the order, the judge addresses questions from both the plaintiff and the defendant about what evidence can be used at trial. In so doing, she does two things that are stunning individually, but that — taken together — turn the plaintiff into the defendant, defending his right to equal access to the businesses that non-disabled people patronize everyday without a second thought.
First, the court grants the defendant’s motion to exclude “sympathy-inducing evidence regarding Plaintiff’s disability” that is not directly relevant to his experience at Popeyes, including “testimony regarding his day-to-day hardships.” The court just doesn’t see how that’s relevant.
Second, the court denies the plaintiff’s motion to exclude evidence that he has filed a large number of other access lawsuits.
Pause.
If people who use wheelchairs filed a lawsuit challenging every illegal barrier they encountered each day, most would file — I’m guessing — five to ten lawsuits each day. Instead, most people go about their days, swearing at the illegal and thoughtless barriers, but without the time or resources to file those tens and eventually hundreds of lawsuits. A brave and energetic few take the time to bring the lawsuits that remain necessary — twenty years after the effective date of the ADA’s architectural provisions and thirty years after California’s — to achieve a modicum of compliance. For their trouble, these people are dubbed — in the press and in court — “serial litigators.”
The Ninth Circuit — the court with appellate authority over the Yates court — has recognized the role of these brave and energetic people in enforcing the law:
Courts must tread carefully before construing a Disability Act plaintiff’s history of litigation against him. As we have noted more than once, “[f]or the [Disabilities Act] to yield its promise of equal access for the disabled, it may indeed be necessary and desirable for committed individuals to bring serial litigation advancing the time when public accommodations will be compliant with the [Disabilities Act].” We must therefore be “particularly cautious” regarding “credibility determinations that rely on a plaintiff’s past [Disabilities Act] litigation.”
Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d 1165, 1175 (9th Cir. 2010) (internal cites omitted; emphasis — though not nearly enough — added). One of the cites I pulled out to make that quote more readable was Sam Bagenstos’s excellent article The Perversity of Limited Civil Rights Remedies: The Case of “Abusive” ADA Litigation, 54 UCLA L.Rev. 1 (2006).
So despite the fact that the Ninth Circuit has instructed courts to be particularly cautious about credibility determinations relying on past litigation, the Yates judge — without citing Antoninetti — holds that
Plaintiff’s filing of well over a hundred disability lawsuits in which he alleges identical injuries bears directly upon his credibility. . . . Plaintiff’s alleged scheme to generate income through the serial filing of lawsuits in an effort to extract settlements from businesses, may, in fact, be probative of his credibility.
More than simply disregarding controlling precedent, this decision has the very immediate and apparently intended effect of converting Mr. Yates from a real, live person who navigates his day to day world in a wheelchair to a greedy serial litigant, judged on the fact that he has filed other complaints, the legitimacy of which he will likely not be able to prove before the jury. (This question is not addressed in the decision, but my strong guess is that the defendant will be allowed to show the fact of hundreds of lawsuits, while the plaintiff will not be permitted to show that, in each one, the facility in question was indeed out of compliance. That would, in essence, require hundreds of mini-trials within this single trial.)
On another level — about which I’ll write more later, as I have to get back to the other outrages on my desk — this is part of the broader scheme on the part of the business world to spin the fact that — 20-30 years after the federal and state standards took effect — there is still massive noncompliance. When you’re really really wrong, accuse the other guy of “serial litigation” to correct your many many failures.
First, a confession: I am the farthest thing from a cyclist.* I own a clunky purple bicycle with upright handle bars and two scruffy panniers. I ride not in spandex but in dorky jeans with one cuff rolled up or — even more fashionistically — rubber-banded. My cycling is limited to a one mile radius of my house, and consists 90% of biking to meet with my co-counsel at the University of Denver law school (.5 miles) in good weather.**
I’m providing this long-winded disclaimer because I’m about to go ballistic in defense of cycling.
WTF is it about cycling that makes conservatives so irrational? I mean, more irrational than usual.*** I blogged earlier about one Dorothy Rabinowitz who believed that a privately-sponsored bike-share program was a totalitarian plot to “begrime” the city of New York.
After Ms. Rabinowitz was widely ridiculed — including a Daily Show segment — she responded. As I’m sure you’ll be shocked to learn, the rationality quotient was not noticeably higher than in her earlier rant. Ask the police, she said, “[t]hey know the . . . helpless screams.” Helpless screams? Of bicycle victims? As my cousin Sproule pointed out — in my first guest post!**** —
of the 136 pedestrians killed in NYC in 2012, NONE were reportedly killed by cyclists, but all of the 155 pedestrians and cyclists killed in NYC traffic in the same year (15,465 were injured) were killed by motorists
But Sproule is probably just one of those cyclists “careening down the sidewalk in all of his splendid self-affirming environmental helpist mood . . .” “Helpist?” “Helpist???” You know when a conservative puts an “ist” on the end of a word, that means it’s a bad thing, so we’ve reached the apotheosis of Randian libertarianism, I guess, when helping is a bad thing.
“Hi. Can I give you a hand with that?”
“Back off, helpist scum! Stop trying to spread your insidious helpism. It’s a slippery slope to thoughtfulism and considerationism.”
But The Divine Ms. R isn’t alone in her irrational anti-bike freak out. Apparently L.A. is thinking of creating bike lanes. Cue right wing talk radio:
Look at these bicyclists, as if they belong to a bizarre cult that worships two-wheel transportation, not a traditional God, not Jesus or Allah, or Jehova, not the Father, Son, and Holy Spirit, they’re like a pagan group, but they don’t even worship trees. Or nature. But they worship two-wheel transportation. And they have their vestments that they wear, their skintight brightly colored clothing, that you don’t see anywhere else, just like in church … you only see this kind of clothing when they’re on the bike in the midst of their worship. They want to be in a special cult.
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This is oppressive. I mean, we’re being held hostage by a minority. It’s the tyranny of the micro-minority here.
Luckily
there comes a tipping point where drivers are going to stop putting up with this garbage. Toll lanes. Carpool lanes. Bike lanes. Everything but lanes for cars where we can drive freely.
That’s right, let’s stop the fascistic imposition of bike lanes and carpool lanes on our naturally-occurring, capitalistically-financed, individualistically-maintained, Ayn-Rand-approved, wtf-are-you-talking-about public fucking streets. We made a series of public decisions that we would all pay to create and maintain streets and highways for these assholes and their cars (and, um, my car too – thanks!), that we’d pay police to monitor them, and that we’d all get to breathe their exhaust whether we like it or not. We’re now making public decisions to accommodate and promote other, less dangerous, less noxious forms of transportation, and it’s totalitarianism and hostage-taking?
What is it about bicycles that makes conservatives lose their shit? I think New York Magazine has the answer, in a helpful Venn diagram:
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*What’s the proper term here? I said “biker” once and was informed that that term is limited to big hairy guys on motorcycles. “Bicyclist” seems sort of formal. “Cyclist”? “Badass mofos on two wheels?”
** In bad weather, I somehow always find a good excuse to drive, which is especially embarrassing because large numbers of students drive from somewhere else in the Denver metro area, park at the end of our street, and walk to the school.
*** OK, maybe not as irrational as killing abortion doctors in the name of defending life, or preventing loving couples from getting married in the name of defending marriage. But pretty damn irrational.
**** I love guest posts! Wanna be a guest blogger? Just ask!
A bakery near Denver is refusing to make a cake for a same-sex couple. While this is covered by the state’s anti-discrimination laws, it would also be an excellent case for my proposed Anti-Butthead Act. According to the Denver Post,
The shop’s owner, . . . [stated] that he has a strong stance toward the biblical view of marriage between one man and one woman.
I’m wondering if Mr. Phillips checks the Biblical-compliance status of his other customers. Does he ask his one-man/one-woman couples if they’ve had sex before the marriage. Awkward! Adultery and coveting of neighborhood wives? Also awkward! Theft? Does he do a criminal background check? How about honoring mom and dad? He needs to check on that, too, right?
This falls solidly within the black letter of the Anti-Butthead Act’s mandate: “Don’t be a Butthead.” Or, in the words of the colleague from whose Facebook post I blatantly stole this idea, “Just make the fucking cake, you dope!”
One of my favorite Onion headlines is
Stereotypes Are a Real Time-Saver
I’m a busy guy. And, while I’d love to, I don’t have the time to get to know every person I encounter in the course of my daily life. So thank goodness I have a handy little device at my disposal that helps me know how to deal with just about anyone I come across: stereotypes. Yes, stereotypes are a real time-saver!
The Denver Post appears to have borrowed this crucial piece of wisdom to guide its journalistic standards. In reporting the tragic death of Tom Clements, the Executive Director of the Colorado Department of Corrections, the Post added the following pieces of gratuitous, unsupported, speculation to its initial reports:
Clements’ death occurred a week after he denied a request by a Saudi national, Homaidan al-Turki, to serve out the remainder of a Colorado prison sentence in Saudi Arabia.
Colorado corrections officials are investigating whether a paroled white-supremacist prison-gang member at the center of the investigation into the execution-style slaying of state prison chief Tom Clements was ordered by the gang to do a “hit,” a source told The Denver Post on Thursday.
In my non-lawyer life, I’m a bit of a smartass, especially in the presence of what I’ll politely refer to as [baloney]. I’ve been unsuccessful at completely eliminating this tendency from my professional life — I once smirked so aggressively at an opposing counsel’s, um, inaccuracy that the judge asked me whether I was having a facial spasm — but, given its public nature, I’ve tried to limit case-specific smartassery on the blog. I’ve also been working on my in-court poker face.
But it’s hard to completely eliminate blogsnark, chiefly because we run up against so many defenses in our cases that are sheer, unmitigated [baloney]. Here’s one. And what’s special about this one is that events of the defendant’s own creation gave us a rare glimpse of just how full of [baloney] it was.
When we first moved into our current office, we were thrilled to learn that the empty corner space across the street would soon be occupied by what we anticipated would be an excellent Mexican restaurant. Our office neighborhood is sort of mixed, by which I mean — as we point out on the main website — we are close to excellent restaurants, an independent movie theater, and a bondage and domination shop. And a couple of gay nightclubs, vintage bookstores, and a knitting shop. I really, really love our neighborhood. A high-quality Mexican joint would be a great addition.
Anyway, the space across the street was completely gutted, but one day as we strolled past — you have to stroll at least once per work day if you have office dogs — we noticed that they were installing raised areas in the space. We chatted with the highest-ranking person we could find on site, and explained that this was not permitted under the ADA. Apparently didn’t matter: the El Diablo restaurant opened with most of its seating on inaccessible raised platforms, and a couple of — also inaccessible — high tables at grade.
Before renovation: flat; accessible.
After renovation: raised; inaccessible.
We called. We wrote. More accurately, Tim did both, trying to explain that we were really psyched about the restaurant, but not the lack of access. To no avail. So Tim did something he doesn’t usually do: became a plaintiff. Represented by our awesome colleagues at the Colorado Cross-Disability Coalition, and joined by several other would-be restaurant patrons who use wheelchairs, Tim filed suit alleging that El Diablo* was in violation of the alterations provisions of the ADA.
Drama ensued.** But through CCDC’s excellent legal work, Judge Matsch granted Plaintiff’s’ motion for summary judgment. Plaintiffs then requested an injunction requiring El Diablo to provide access to the raised areas, which it opposed on the grounds that that would be a hardship, a defense that was not actually legally available, given that the owners had created the problem by installing the raised areas in the first place.
The Court rejected the whining hardship defense and granted the injunction, with some pretty powerful words on discrimination:
The injury to the plaintiffs and those persons represented by the Colorado Cross-Disability Coalition is that when they patronize this restaurant, they must suffer the indignity of discriminatory treatment by their exclusion from 840 square feet of the dining area solely because they use wheelchairs. The elimination of that discriminatory treatment goes to the very purpose of the ADA and it can only be remedied by requiring such modification to those areas as to make them accessible to wheelchairs.
More drama ensued, as it turned out*** that the owners had received funding from the City of Denver, promised to bring the premises into compliance with a variety of applicable codes, and then [apparently] [allegedly] didn’t. So the City shut down El Diablo and Sketch, the bar next door, for code violations. Even more drama ensued, this time between El Diablo and the City, culminating with the owner filing for bankruptcy.
When a company files for bankruptcy, it has to tell the court and the public who its major creditors are. A review of the owner’s public (did I mention public?) bankruptcy filing revealed this, from the folks who complained that it would be a hardship to provide access to the raised areas they created when they renovated the restaurant.
The defendant, while complaining about hardship and refusing to consider installing a ramp — or even spending the money to hire an architect to analyze the feasibility of a ramp — owed the attorneys on that very case $318,455.53. We can probably assume that the defendant had been paying those lawyers for at least part of the case before it stopped paying them, so this over-$300,000 debt is likely only part of the legal fees the owner had decided to spend to fight against what would almost certainly be a far less expensive solution, one that would integrate people who use wheelchairs into the restaurant.
And of course, think how cheap it would have been to comply with the ADA in the first place!
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*Yes, we were suing The Devil. Many of you plaintiffs’ lawyers probably often *think* your opponent is The Devil, but ours actually was.
**I’ve previously blogged about one of the dramas: the defendant’s accusation that CCDC was defaming them by posting publicly-available legal pleadings on its website.
*** Please pay attention, journalism students, to the way it should be done. The Westword article at the link contains these gems of impartiality:
Danger. That’s the sign on the door of Sketch, which is supposed to host an opening for a showing of 9News reporter Kirk Montgomery’s photographs tonight.
and this, by the column’s author, a lion in the field of journalism here in Denver:
A few hours ago, I was sitting in [the owner’s] office on the second floor, which didn’t seem to pose any immediate hazard to me … except that [he] was about to blow his top.
I am not, repeat not, a biblical scholar. In fact, my sum total of Bible-reading consists of (1) Christmas with the in-laws,* and (2) being stuck in a hotel room without a novel to read myself to sleep. I do feel qualified to opine on fast food chicken, though, because I love junk food. The best fast-food chicken is — objectively and indisputably — Popeye’s. Why? Grease and flavor. Sure the Colonel’s chicken is good because it is thoroughly battered and bathed in grease. But Popeye’s has that plus a tasty, spicy flavor that puts it over the top. All this is to say that my total boycott of Chick-Fil-A** for their hate-based policies will have precisely zero effect on their bottom line.
This woman, however, sounds like she could require an extra line on their next annual report. Plus she knows her Bible.
The long and short of it– on 8/1 (the day Mike Huckabee wants Chick-Fil-A supporters to patronize the restaurant) go to Chick-Fil-A. Ask for a large water and nothing else. See if they adhere to Proverbs 25:21[***] and give it to you. If they do, yay! You took a few cents from their hate fund! If they don’t, well…I guess they’re proving their principals aren’t so “biblical.”
My favorite comment was:
The point is CHRISTIANS are ONLY under the NT not the OT! So her point was invalid on bringing up the OT when that law was abolished 2,000+ years ago.
So, I’m confused: the Ten Commandments don’t apply to Christians? That actually explains a lot, for example, the fact that the murder rate and the rate of both divorce and teen (presumably out-of-wedlock) birth is higher in more conservative states. Scholars have attributed the latter to economic, historical, and other scholarly factors, but perhaps it’s simply that God repealed the Ten Commandments and the Blue States didn’t get the memo.
Balloon Juice also had this excellent photo:
Though again, for the record, KFC is only the second-best batter-dipped, grease-soaked chicken. Popeye’s is the way to go.
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* Sorry, guys, but you knew I was a heathen**** when I started dating Tim.
** When I first saw a Chick-Fil-A sign sometime in the 80s or 90s, I seriously thought it was pronounced “chick filla” — rhymes with Godzilla — because I could not believe anyone would be so backward as to be unable to say or spell “filet.”
*** “If thine enemy be hungry, give him bread to eat; and if he be thirsty, give him water to drink”
**** OK, not total heathen. I’ve summarized/made light of my own religious views elsewhere on the blog.
That’s how the headline should have read in the center, front, above-the-fold article in today’s Denver Post. I wish I were kidding.
Douglas Bruce went to jail for 104 days and faced cruel and unusual punishment: the rolls were cold and the gravy tasted funny. And he’s gonna sue.
I don’t know who to be more furious with: Bruce for being a selfish jerk, or the Denver Post for devoting so much space on its front page to a middle class white guy who goes to jail for just over three months and fails to receive gourmet-level cooking.
Denver Post, Mr. Bruce, I’d like you to meet Troy Anderson. Mr. Anderson has been in solitary confinement at the Colorado State Penitentiary for 12 years. In those 12 years, he has not been allowed to exercise outdoors.
I’d have loved to introduce you to Shawn Vigil but, sorry to say, he’s dead. He committed suicide at the Denver County Jail in 2005 — after being locked up for a month in solitary without a sign language interpreter. You see, Mr. Vigil was deaf. He was in solitary with no way to communicate with his jailers. Wonder what he thought of the gravy? Perhaps the Denver Post will write a front page story about that.
Actually, the Denver Post did write about Mr. Vigil’s case when we filed. This many words. Though I don’t have the print edition, I’m confident it wasn’t on page one. Former Post columnist Susan Greene* also wrote about it in more detail, but of course she’s not there any more. Can’t have someone providing nuanced coverage of marginalized people.
Back in the day, Spy Magazine had an equation for how many column inches a story would get in the New York Times based primarily on the number of people killed and the distance of the event from Times Square.** Although I’m not a math major, there has to be some sort of equation at work here: R x C x L x G where R = race, C = class, L = length of sentence, and G = quality of gravy. In the newspaper world, being white (r = 100) and middle class (c=100) will completely outweigh the length of your sentence and other conditions.
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* Full disclosure: Susie is a friend. And also a kick-ass journalist. The lack of her voice (and other recent departures) in the Post makes it not much more than People Magazine: Denver Edition.
** Yes, of course it’s on the internet: the November 1989 issue of Spy Magazine. The equation is on page 56. Check out page 55 for proof that Donald Trump has been annoying us for a long, long time. And generally peruse the issue to take yourself back to a time when being a smart-ass, sarcastic, irony-appreciating young law grad felt fresh and new. Or maybe that was just me.
[June 2: Edited for accuracy.]
Thought Snax 