December 30 roundup

  • Federal Circuit court of appeals says government can’t deny trademark as “disparaging” just because it frowns on its expressive content, implications are favorable for Washington Redskins in their legal case [Eugene Volokh, Paul Alan Levy, In Re Simon Shiao Tam opinion, case won by past Overlawyered guestblogger Ron Coleman]
  • Mentally ill man walks into San Diego county recorder’s office, submits properly filled-out deed transferring major sports stadium to his name, chaos ensues [San Diego Union Tribune]
  • Lawsuit against prolific California class action firm includes details on how it allegedly recruits plaintiffs, shapes testimony [Daniel Fisher]
  • New Jersey: “Man Sues Because Alimony Checks Were Mean To Him” [Elie Mystal/Above the Law, ABA Journal]
  • Blustery Texan Joe Jamail, “greatest lawyer who ever lived” or not, was no stranger to Overlawyered coverage [Houston Chronicle, Texas Monthly (“We only overpaid by a factor of five, and that felt like a win”), Daniel Fisher (city should have cut down beloved oak tree in road median because “it isn’t open season on drunks”)] Jamail’s best-known case gave me chance to write what still might be my all-time favorite headline, for a Richard Epstein article in what is now Cato’s (and was then AEI’s) Regulation magazine: “The Pirates of Pennzoil.”
  • Hotel security camera footage may help decide whether Eloise tainted-sandwich tale will end up shelved as fiction [New York Post]
  • Your War on Drugs: shopping at garden store, throwing loose tea in trash after brewing combine with police goofs to generate probable cause for SWAT raid on Kansas family’s home [Radley Balko] More: Orin Kerr.


  • “While testing the specificity of the KN Reagent test kits with 42 non-marijuana substances, I observed that 70% of these tests rendered a false positive”

    It should be perjury to even describe this as a “drug test” to a judge in a warrant application. You may as well just do a pH test.

  • It isn’t clear that the individual police officers are aware of the inaccuracy of the field tests.

    • Do you actually believe that individual police officers are not informed of the forensic lab results on evidence they bring in pursuant to an investigation? That seems exceedingly unlikely. Which means that it is exceedingly unlikely that any officer that has used a field drug test kit more than a tiny number of times is unaware of the likelihood of false positives.

      • The police should as a body in the long run become aware of the problems, but in this case, no, I’m not sure that the individual officers involved in the raid ought to know. The field tests were apparently done by deputies who were not the people who made the decision to apply for the warrant, and the raid was carried out by a SWAT team, whose members were not involved in the investigation.

        • ” I’m not sure that the individual officers involved in the raid ought to know.”

          The only ones whose knowledge is relevant is the ones who applied for the warrant and or provided the affidavit as to its result.

          “The field tests were apparently done by deputies who were not the people who made the decision to apply for the warrant”

          If they attested to the results of the field test without having done it themselves or waiting for the lab tests they should be charged with perjury.

  • MattS:
    Here’s a bit from Orin Kerr’s post:
    “Sheriff Denning testified that, since he came to the Johnson County Sheriff’s Office in 1978, the Office has conducted “thousands” of field tests and the only false positive results of which he is aware are the results at issue in this case.”

    See, it could happen.

    • The field test kits in question demonstrably yields false positives on so many common substances that Sheriff Denning’s testimony is not credible.

  • Canvasback,

    Please tell my you are joking when you say “see, it could happen.”

    Are we really to believe that in the thousands of field tests, only these two every produced a false positive? Are we really believe that the police were unaware of the false positive issue from this particular company?

    There is also this conundrum:

    Firs from Kerr’s post: Based on the officer’s “law enforcement training and experience,” it appeared as though it had been saturated through a liquid to extract THC, the active ingredient in marijuana. The officer field tested the plant material, and it tested positive for THC.

    Secondly from Radko’s post: It took all of 10 days to complete those lab tests. The lab not only concluded that substance wasn’t pot, the analysts added, “It does not look anything like marijuana leaves or stems.”

    Which are we to believe? That the officers were trained and had experience marijuana which allowed the results of the tests to be the basis of the warrant? Or were the officers so lacking in training and experience that they couldn’t even identify what was marijuana which would have precluded the need for any test to be conducted?

    It seems to me that the lack of training and experience in identifying marijuana led the officers to get a false positive. It just flies in the face of reason that officers who don’t even know what marijuana looks like can somehow have their “training and experience” relied upon.