Author: TSA Press

White people must think we’re stupid. Black people who work for the police must think so too. The narrative the city of Dallas would have us believe about the murder of Joshua Brown strains credulity to the point of farce. I’d sooner believe extraterrestrials built Epcot Center to prepare us for their arrival than I’d believe the BS coming out of Dallas PD right now.

Joshua Brown was the key witness in the Amber Guyger trial. Guyger, a former cop, was convicted last week of murdering her neighbor, Botham Jean. Brown was an important witness because he lived across the hall from Jean. Brown testified that he heard two people “meeting by surprise,” and then shortly after that heard two shots. He testified that he did not hear Guyger shout “hands up,” which was an important part of her defense.

Brown was found dead from multiple gunshots, this week.

To recap, Joshua Brown was a key witness in a trial that saw a white cop actually held accountable for her murderous actions, and a week later he turned up dead.

Immediately after the shooting, Dallas Mayor Eric Johnson asked people to “refrain from speculation.” I get it, he’s a mayor, what’s the brother gonna say: I understand why everybody thinks these racist cops killed that brother, but let us figure out an official excuse before we have a race riot on our hands?

But two days later, the police are out with their official story and it sounds like a group story an eighth grade creative writing class would come up with.

According to police, Brown was killed in a “drug deal” gone bad. Dallas police have arrested two (of three, they claim) suspects. Police claim that these men drove four hours from Louisiana all the way to Dallas to… buy weed. After shooting Brown (the police didn’t even bother to give a motive for why they allegedly shot him, apparently there are enough dumb people who think that interstate marijuana deals often result in gunfire) these alleged suspects apparently left all the weed AND MONEY behind.

Every single part of this police narrative smells like bull. The only people who drive four hours to buy drugs are freaking wholesalers. You’re telling us that Josh Brown is moving enough product to make three people drive four hours to buy enough drugs to make the trip worth it? You’re FURTHER telling me that Brown is a big time wholesaler, but shows up to to a drug sale BY HIMSELF, when he knows that people are coming all the way from Louisiana. You’re telling me he’s doing all of this ten days after he’s the star witness in a police murder trial?

And, just to think like a lawyer for a second, you’re telling me that a big time drug wholesaler is the star witness for the prosecution and his drug hustle is UNKNOWN to until after the trial? You’re telling me that the prosecution rested its case on the say so of a drug kingpin, and then either didn’t know or somehow hoped that the defense — the COP’S DEFENSE TEAM — would not find out? And you’re further telling me that a bunch of cop and cop lawyers in fact DIDN’T find out and didn’t use Brown’s drug history to impeach his credibility at trial.

You’re telling me that the man who testified against a white cop at a highly publicized murder trial WHILE WEARING A DRAGONBALL-Z T-SHIRT, was actually a drug pusher conducting interstate wholesale operations, and nobody knew about it until he turned up dead?

No. Also, f**k you. How dare you expect me to believe something like that. I’m a goddamned educated man. You can shove that police narrative right back up your ass where it came from. You might as well get these suspects to confess to the murders of Biggie and TuPac for all I’ll believe it.

The problem is not that Dallas police is full of s**t, the problem is that we have nobody left to trust with an investigation of this magnitude. The NAACP Legal Defense Fund is calling for an independent federal investigation into Brown’s murder. So is S. Lee Merritt, the attorney representing the family of Joshua Brown. Dallas police have absolutely no credibility to investigate this crime. Merritt points out that Brown was afraid of being targeted and didn’t want to testify. He fled to California when the trial started (a weird move for somebody with an allegedly thriving drug business in Dallas), and had to be coaxed back to Dallas to testify. Brown didn’t trust DPD to guarantee his safety, I certainly don’t trust DPD to investigate their failure.

A federal investigation led by the Department of Justice would be appropriate, except, have you met the Department of Justice lately? Attorney General William Barr is a Trump enabler who seems to relish his power to meddle in the normal operations of law for nefarious purposes. F.B.I. Director Christopher Wray appears to be a man more interested in keeping his job than conducting thorough investigations (still waiting for you guys to follow up on any of the multiple witnesses to your buddy Brett Kavanaugh’s alleged inappropriate behavior, Director Wray).

There is nobody left involved with federal law enforcement who can be trusted to value the life of Joshua Brown, or anybody black, over the objection of Donald Trump. That is by design. This is what happens when you elect a man who thinks the Exonerated Five should have been executed.

I do not know where black people turn for justice in this country, and I say that as a person who reports on justice. The police kill us. District Attorneys and Mayors cover for the police. The Attorney General is corrupt. The Civil Rights Division has been gutted. The courts have been packed with arch-conservatives grown on the Federalist Society’s farm.

Nobody will help us. They kill us on tape, and nobody will help. They kill us in our homes, our cars, our parking spaces, or just while walking down the streets, and nobody will help. They escape indictments and convictions, and nobody will help. When they are convicted they receive the lightest possible sentence, and nobody will help. When we take the streets we are met with military style counter-insurgency tactics, and nobody helps. You vote for open bigots and racists, over the OVERWHELMING objection of black and brown people, who then implement bigoted and racist policies that bring death and destruction to black and brown bodies, and not only does nobody help us, but they blame us for not voting ENOUGH to help them.

Everybody and every interest group has their own pet issues. Whether it’s health care or election security or taxes or whatever. Meanwhile, THEY’RE KILLING US. They’re killing us and it’s hard for me to get people to care about them killing us enough for them to talk about it on freaking Facebook.

They killed Joshua Brown. They’re going to get away with it. Nobody will help.

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

Mercedes-Benz has shifted into overdrive in its attack on the rights of street artists. Four such creatives — James Lewis, Daniel Bombardier, Jeff Soto, and Maxx Gramajo — sent cease-and-desist demands to MB, expressing agita over MB’s use of their murals as set dressing for product photography shoots. In these shoots, MB’s G 500 Series vehicles were positioned in the foreground with the street artists’ murals providing color and background and that oh-so-important and intangible element of authenticity. MB then distributed and published these photographs online to promote its G-rides.

There is really no doubt that a conscious decision was made by MB to incorporate the street artists’ murals into its advertising. And most would agree that the street artists should be compensated if their artwork is used in marketing materials.

MB, though, after receiving from the artists various cease-and-desist demands, went on the offensive and sued the four street artists in Detroit, a calculated move to increase the cost of litigating the case and perhaps obtain a home-field advantage in the town known as Motor City. The suit sought a judicial declaration that MB had infringed no rights and, even more aggressively, that the street artists had no rights to even be infringed. As you might imagine, the four artists cried foul and moved to dismiss the lawsuit, arguing, among other things, that Detroit was an improper venue. The court rejected the street artists’ motion.

MB, to its credit, and in a move that seems likely to have influenced the court’s decision, obtained from the city of Detroit a permit to hold a commercial shoot at 1314 Gratiot Avenue and the surrounding environs, the locale of the murals at issue. Lewis, like the other artists, created his mural in 2016 during Detroit’s annual Murals in the Market festival. The express aim of this festival was to turn the Eastern Market district of Detroit “into a must-see destination for arts,” among other things. Crucial to the case is the fact that the street artists’ respective murals were “painted on the façade of a building, w[ere] integrated into that building, and became a permanent fixture of the Eastern Market’s cityscape.”

In denying the artists’ motion to dismiss, the court notes the perhaps ill-advised language in the artists’ demand letters, which expressed a “desire to ‘expose’ Mercedes, use formal discovery to learn information other people can use to sue Mercedes, and tell a jury that Mercedes made $80 million selling the G series truck in an effort to wipe out Mercedes revenue from sales of the G Series.” But, despite the poor choice of language, there was really no basis on which to deny the street artists’ motion.

The decision is notable for a couple of reasons.

First, the court rejects the street artists’ argument that the case is not yet ripe because registrations for the works at issue had not yet issued. This argument exposes another grave flaw in the Supreme Court’s recent, ground-shifting decision in Fourth Estate Publishing Ben. Corp. v. Wall-Street.com, LLC. The case, as readers of this column know, held that an artist cannot file a copyright infringement suit against an infringer until she receives a registration certificate from the Copyright Office and has already caused headaches and delays across the nation.

Here, the street artists argued that MB’s suit was premature because there did not yet exist registration certificates for the murals at issue. The court rejected the argument, acknowledging that while copyright holders must possess a certificate before filing suit, the same limitation does not apply to accused infringers, and expressly holding that the “absence of a registration does not preclude an accused infringer from seeking a declaration of non-infringement.”

This exposes an additional negative externality of the Fourth Estate decision — it will force copyright holders to delay in providing notices of infringement until they receive the registration for the work at issue. If they don’t, they will be vulnerable to declaratory relief actions like this one and, even worse, will be precluded from filing counter-claims for infringement due to the registration requirement. One can imagine a situation where an accused infringer files a declaratory relief action and the copyright holder does not receive its registration until after the deadline to amend the pleadings to assert a counterclaim. That copyright holder will then have to file an entirely separate copyright action that will lag behind the declaratory relief action. This will result in more delay and more work for the courts and litigants, none of which is ideal.

The Lewis court, in a meatier section, then addresses section 120 of the Architectural Works Copyright Protection Act (AWCPA), which MB sought to exploit to evade liability for infringement. This section holds that the “copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place[.]”

The court found that MB’s exploitation of the street artists’ murals may be shielded by the AWCPA. While this statute has long been understood to allow photographs of buildings, this would be the first time that a court has allowed the commercial exploitation of a non-architectural work incorporated into a building’s facade.

Citing Leicester v. Warner Bros., a Ninth Circuit case involving the depiction of a building in Batman Forever, the Lewis court found that an artist might have an infringement claim where the mural was divorced from the context of the building in which it was embodied, but that the use of the work as embedded in the building was not likely to give rise to a claim. It thus rejected the street artists’ challenge to the AWCPA’s application, which challenge, the court finds, sought to restrict the “important right of the public to take pictures of buildings that are publicly visible, free from any claim of copyright infringement.”

For whatever reason, the court fails to acknowledge or discuss the only extant decision to address the exact question at bar: Adrian Falkner v. General Motors LLC. This case addressed a car company’s exploitation of Detroit-based street art in the context of a marketing campaign and rejected the same argument advanced by MB and credited by the Lewis court.

Relying also on Leicester, the Falkner court astutely noted that the street art murals at issue and were “not a part of a functional, utilitarian, or useful role in the architecture” and were considered “conceptually separable from the building and were independently and fully protected under Section 102(a)(5).” The Falkner court homed in on the Ninth Circuit’s holding that a work had to be “part of” a building, in order to fall within the purview of the AWCPA. Falkner, like Lewis, concerned a parking garage and the court in Falkner reached the sane conclusion that the mural was not “part of” the architectural work that comprised the parking garage. This sensible result seems to invoke the “conceptual separability” doctrine from Star Athletica v. Varsity Brands that we all know and love, but does not engage in a lengthy analysis in that regard.

The Lewis court reaches the opposite conclusion as Falkner, with both cases purporting to interpret Leicester. Should the Lewis court reach the same conclusion as to the AWCPA’s applicability at the summary judgment stage and dispose of the case on that basis, as is likely, the street artists should port their spray cans, brushes, and briefs on over to the Sixth Circuit, and seek redress.

Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.

Calling All Legal Ops Leaders: The 2019 LDO Survey Is Live

Calling All Legal Ops Leaders: The 2019 LDO Survey Is Live

LDO and Above the Law

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Calling All Legal Ops Leaders: The 2019 LDO Survey Is Live

Calling All Legal Ops Leaders: The 2019 LDO Survey Is Live

LDO and Above the Law

New Orleans rightfully sees itself as a bit of a carveout from the rest of the country — a place where the rules are just a bit different than one might expect in other major markets. It’s also a city that treats showing breasts in the center of downtown as perfectly normal behavior for a religious holiday.

Still, would a law firm event with a burlesque show qualify as professionally appropriate, even in New Orleans?

The Charbonnet Law Firm in New Orleans has an event coming up with the following invitation which is… something.

Why the boob-forward flyer? Because Trixie Minx is a noted burlesque performer in New Orleans with a striptease/comedy routine that’s a throwback to a Lili von Shtüpp kind of thing. Granted, the Trixie Minx entertainment empire goes beyond striptease into variety shows, tarot readings, and stilt walkers. But given the flyer, employees would be within their rights to assume this is going to be a more clothing-optional show.

Clearly a strip club routine would be inappropriate for a law firm event regardless of locale. But where does a burlesque/showgirl/comedy set fit in? For some reason people treat Vegas shows as cultural events despite offering basically the same state of undress and those lack any link to a century old artistic tradition in the area.

But still, there are all sorts of events that people go to that they don’t want to attend with their bosses and this feels like it should be on that list. Even if no-bra Barbie up there represents a hallmark of mainstream entertainment in the area, a law firm probably should keep itself well clear of this scene.

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

A new California law that reclassifies some independent contractors as employees, requiring they be offered a range of benefits and worker protections, will likely expand health insurance coverage in the state, health policy experts say.

But it might end up harming some workers.

That’s in part because the law, which takes effect Jan. 1, could cut two ways. While inducing many employers to extend health insurance to newly reclassified employees, it might prompt others to shift some workers from full-time to part-time status to avoid offering them health coverage, or — in the case of some small firms — to drop such benefits altogether.

Some companies might trim their workforce to limit cost increases. Benefits typically account for about 30 percent of total employee compensation costs, and health insurance is the largest component of that.

“I think we will see more people classified as employees over time,” said Ken Jacobs, chair of the Center for Labor Research at the University of California-Berkeley. “And that is very likely to expand the number who are offered and take coverage. But the situation is definitely fluid.”

Adding to the fluidity: Some large employers are contesting the new law. Uber, the ride-sharing app company, has said the law does not apply to its drivers and indicated it is prepared to defend its position in court. The company has joined competitor Lyft in broaching the idea of a 2020 ballot initiative to challenge the law.

California Gov. Gavin Newsom has indicated a willingness to negotiate changes and exemptions with those companies and others.

Uber did not respond to requests for comment, and Lyft declined to comment.

In addition to shared-ride drivers, the law affects construction workers, custodians and truck drivers, among others.

Some independent contractors prefer the flexibility that comes with setting their own hours, but others are eagerly eyeing health coverage.

Steve Gregg, a resident of Antioch, Calif., is among them. Gregg, 51, is uninsured and makes too much to qualify for Medi-Cal, the state’s version of the Medicaid program. He hopes to be reclassified as an Uber employee in 2020, primarily to gain access to health insurance.

“The only medical care I can really afford right now is to use an online doctor for my blood pressure medicine,” said Gregg, who typically logs 50 hours or more a week driving for Uber in the Bay Area.

Under the Affordable Care Act, companies with at least 50 full-time employees must pay a penalty if they don’t offer health insurance to those who work 30 hours or more a week.

California’s new “gig economy” law requires employers to treat independent contractors as regular employees if the work they perform is central to the core mission of the company and they operate under the company’s direction.

Several kinds of workers are exempt from the law’s provisions, however, including insurance and real estate agents, investment advisers, doctors and nurses, direct sales workers and commercial fishermen.

Jacobs said other states will closely watch what happens in California, given that some tech companies hire large numbers of independent contractors.

New Jersey, Massachusetts and Connecticut have similar labor laws on the books. Lawmakers in Oregon and Washington state are eyeing legislation akin to California’s.

Independent contractors in the Golden State are nearly twice as likely to be uninsured as regular employees, according to an analysis by UC-Berkeley’s Center for Labor Research, known as the Labor Center. From 2014 to 2016, just under 70 percent of workers classified as employees had employer-sponsored health insurance, compared with 32 percent of independent contractors, the study shows.

An estimated 1.6 million of the state’s 19.4 million workers are full-time independent contractors, according to another analysis by the Labor Center. It is unclear precisely how many contractors are “misclassified,” but sponsors of the new law, led by Assemblywoman Lorena Gonzalez (D-San Diego), put the number at around 1 million.

Whatever the exact number, employers who rely on contract workers will need to make complex health insurance decisions.

A company whose contract workers average 35 to 40 hours a week, for example, could reclassify them as employees for the purpose of complying with the new law but try to limit their weekly hours to fewer than 29, thus avoiding the ACA coverage requirement, said Dylan Roby, an associate professor of health policy and management at the University of Maryland and an adjunct associate professor at UCLA.

A large proportion of small companies that are not required by the ACA to cover their employees do so anyway, and the ones that hire independent contractors will also face hard choices.

“If they have to expand that to reclassified employees, the cost could be substantial,” said Christen Linke Young, a health insurance researcher at the Brookings Institution in Washington, D.C.

A small firm with a skilled and relatively high-wage workforce might choose to absorb the cost of expanding coverage to reclassified workers, Young said, because those workers might not qualify for subsidies to buy health insurance on their own through Covered California, the state’s ACA marketplace. Offering insurance is also a retention tool.

Other small companies, however, could choose to drop coverage altogether rather than pay the tab for newly reclassified workers.

And some might be able to place the new employees in a separate category and offer them no health benefits, or less generous ones than the existing employees get. But under federal law, an employer can do that only if the new employees are doing a different kind of work than the current ones, Young said.

Companies of all sizes can wait a year before offering new employees coverage, to establish what their average weekly hours are. That buys firms with 50 or more employees time to decide whether the reclassified workers qualify for health benefits under the ACA.

The uncertainty about how the new law will play out is sowing confusion among many independent contractors.

Vanessa Bain, a resident of Menlo Park, Calif., who works full time as a contract worker for Instacart — a same-day delivery service for groceries — worries about what her employer will do.

Bain and her family are enrolled in Medi-Cal, California’s version of the Medicaid program for people with low incomes. But she would rather get insurance through Instacart.

“What will they offer us?” Bain, 33, wonders. “If the premiums are too high or the coverage crappy, we may be better off buying it on our own through Covered California. We’ll have to see.”

Photo: Mykola Velychko, Getty Images

This KHN story first published on California Healthline, a service of the California Health Care Foundation.

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.

The Harare City Council approved the signing of the deals on October 7, 2019.

Our call for transparency and accountability comes in the wake of previous deals worth millions of dollars having faied to improve the water situation in Harare due to misuse of funds.

The issue of the US$144 Million Chinese loan is a case in point following revelations of misuse of the first US$72 million that had been released to council. What followed after the release of the US$72 Million was a blame game between officials and consequently, the remaining USD$72 Million was withheld.

And now we have been told that the President, Emmerson Mnangagwa is making frantic efforts for the release of the other US$72 Million.

On the latest US$868 Million water and wastewater deals, we implore the government, in this case as the guarantor of the deals to comply with section 300 (3) of the Constitution of Zimbabwe which states that, “Within sixty days after the Government has concluded a loan agreement or guarantee, the Minister responsible for finance must cause its terms to be published in the Gazette.”

CHRA expects the Minister of Finance to follow the law in the administration of these loans by giving updates to the Parliament of Zimbabwe on the performance of these loans in line with section 300 (4) (a) (ii) of the Constitution.

In line with our efforts to ensure that the dire water situation in Harare is addressed we will keep an eye on any deliberate circumventing of accountability mechanisms.

We further call upon the City of Harare to be accountable and disclose all the information and conditions related to the loan to the public.

This is line with Section 62 (1) of the Constitution states: “Every Zimbabwean citizen or permanent resident, including juristic persons and the Zimbabwean media, has the right of access to any information held by the State or by any institution or agency of government at every level, in so far as the information is required in the interests of public accountability.”

As CHRA, we will also push for the establishment of a citizen monitoring taskforce before any disbursement of the loans.

Any abuse of water funds as witnessed in the past  is a serious threat to water security.

We have noted that in the case of the recent US$868 Million loans, land will be used as security and we sincerrely hope that this is not another way of selling Harare.

CHRA will be mobilising grassroots communities, CSOs, and Residents Associations in demanding transparency and accountability on the water deals.

We would also like to urge parliamentarians to defend the Constitution by reclaiming their role in scrutinising and approving loans acquired by the government.

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