News

When we and others discussed the massive trademark lawsuit between Molson Coors, makers of Keystone beer amongst other brands, and Stone Brewing, it was billed as a David versus Goliath scenario. Now, if I remember my bible studies correctly, once David slung a couple of well-placed rocks into Goliath’s forehead, Goliath didn’t then get up and ask for another go of it (mostly due to David removing Goliath’s head from his body, I assume).

But here, Molson Coors is doing exactly that. After being hit with a $56 million judgement by the jury in the case, Molson Coors asked for the judgement to either be thrown out or that a new trial be spun up. Both of those requests were denied by the court at the time, along with a denial of Stone Brewing’s request for a new trial because it thought Molson Coors hadn’t been hit with enough damages.

Now, it’s important to keep in mind that this trademark action was over actions taken by Molson Coors, such as advertising and trade dress changes that emphasized the “Stone” in “Keystone,” and our analysis that these changes constituting trademark infringement being very questionable. I was a beer-drinker for nearly two decades (I’m in my 40s now, so now I’m a snooty wine/whisky drinker) and it strains credulity to think that anyone is going to be confused between Keystone beer and Stone Brewing beer merely because the former changed the font size of “stone” on its packaging. There were some other issues as part of the suit, such as parts of the trade dress referring only to how many “stones” were in a 15-pack and the like, but most of this rested on the prominence of “stone” on the packaging.

Well, Molson Coors is appealing, with its reasoning being mostly along those same lines.

Molson Coors argued before a panel of Ninth Circuit judges Tuesday that the decision in a trademark dispute against Stone Brewing was based on faulty legal reasoning and asked the panel to reverse the lower court verdict.

“No reasonably prudent beer consumer would ever confuse the two, especially because Stone IPA is priced at three to four times the price of the economy Keystone Light,” said Quinn Emanuel Urquhart & Sullivan attorney Kathleen Sullivan, who represents Molson Coors.

Sullivan also said no rebrand ever took place to capitalize of Stone Brewing’s name, calling her client’s change in design a “trivial” packaging change — not a rebrand, but a “refresh.”

“There’s not a lot of real estate in marketing, so sometimes you have to split things into two lines.”

Now, as the post notes, some members of the panel of judges have already starting pushing back on some of Molson Coors’ argument. And some of that pushback is pretty concerning if you believe that there should be some measure of sanity in trademark law. Here’s an example.

U.S. Circuit Judge Susan P. Graber, a Bill Clinton appointee, pushed back. She noted that after the change, “stone” was much more prominent on the can, calling into question the company’s motivations.

Sullivan dismissed this reasoning. “If the Hard Rock Cafe starts italicizing ‘rock,’ that doesn’t mean it now infringes Dwayne Johnson — The Rock’s — trademark,” she countered.

“Well, it might be if he owns a restaurant,” chimed in U.S. Circuit Judge Patrick J. Bumatay, a Donald Trump appointee.

That’s crazy. You have to really do some mental gymnastics to imagine that any kind of customer confusion would occur with that sort of change between two brands that have achieved the kind of fame both The Hard Rock Cafe and Dwayne “The Rock” Johnson have gained. And the same is true in this case. Both Keystone and Stone Brewing are established, well known brands in the beer industry. So much so, actually, that the whole “David versus Goliath” trope that we all engaged in is probably an analogy misfire.

Stone Brewing might be a David to Molson Coors’ Goliath, I suppose, but Stone Brewing is the Goliath to most of the rest of the craft brewing industry. Sure, Molson makes billions in revenue per year, but Stone Brewing makes hundreds of millions in revenue itself. Compare that with another established craft beer player, such as Rogue Ales & Spirits, which brings in about $60 million. Given the notoriety of both brands, you would think there would be very real customer confusion that Stone Brewing could have brought as trial evidence in a voluminous way. Stone Brewing attempted to bring some of that to trial with studies and some social media posts, but I would say it was all rather weak given the context.

Especially given the timeline at play here, which is another point that Molson Coors raised on appeal.

Molson Coors also says the case never should have gone to trial because Stone Brewing missed its window to sue.

Stone Brewing sent a cease and desist letter to Molson Coors in 2010 over its use of the terms “stone,” “stones” and “hold my stones,” but didn’t file a complaint until 2017 when it claims to have begun suffering from the rebranded cans.

“Once we weren’t sued by 2014, we were entitled to think they didn’t sue us,” said Sullivan, referring to the statute of limitations.

The laches defense, in other words. If we’re going by California law here, as I think we are, the analogous state law based on precedent would be a 4 year period of reasonable time to file suit, with anything beyond that being an unreasonable delay. An example of that precedent would be Pinkette Clothing, Inc. v. Cosmetic Warriors Limited, where this same court said four years was the line in the sand.

Given some of the commentary by the panel of judges, I have no idea how likely it is that Molson Coors gets any kind of win here. And that’s unfortunate, because none of this sounds like real trademark infringement to this formerly beer-soaked writer.

It looks like Dallas, Texas residents aren’t going to wait around for the courts to react to marijuana legalization. They’ve (overwhelmingly) decided to answer one of the legal questions legalization creates by adding the answer to the ballot measure itself. (h/t Jacob Sullum, Reason)

Shall the Dallas City Charter be amended by adding a new section in Chapter XXIV that reforms marijuana possession enforcement by prohibiting the Dallas Police Department from making arrests or issuing citations for marijuana possession or considering the odor of marijuana as probable cause for search or seizure, except as part of a violent felony or high priority narcotics felony investigation; making enforcement of Class A (currently, two to four ounces) and Class B (currently, up to two ounces) misdemeanor marijuana possession the Dallas Police Department’s lowest enforcement priority; and prohibiting city funds or personnel from being used to test cannabis-related substances to determine whether a substance meets the legal definition of marijuana, except in limited circumstances.

That’s going to streamline things. Normally, legalization is followed by lengthy legal battles arising from arrests/searches initiated by cops claiming to have detected the odor of a completely legal substance. Sooner or later, the courts usually get this right (but not always!) and tell law enforcement the obvious: smelling something legal cannot possibly be considered “probable cause” to believe a crime has taken place and/or contraband will be discovered if a person or place is searched.

With this ballot measure, which was approved by nearly 67% of voters, this handy excuse for warrantless searches is no longer an option for Dallas police officers. And it also takes away one of their favorite things to do: make low-level drug arrests for possession of extremely small amounts of marijuana.

So, of course, cops are already complaining about this:

However, critics like former Dallas Police Chief Eddie Garcia, say that four ounces is an amount used by many drug dealers. In August, he told city leaders that Dallas police officers already don’t enforce possession under two ounces, and warned increasing it to four ounces wouldn’t help lower crime.

And so are some members of the city council, who seem to believe no issue should be left solely in the hands of their constituents.

Dallas Councilmember Cara Mendelsohn said during a briefing in August the measure would benefit “drug dealers and drug houses.”

“If people would like to decriminalize or legalize marijuana, they need to be talking to their state reps and state senators, their congressmen and their (U.S.) senators,” Mendelsohn said.

What a take. And a completely predictable response from someone who doesn’t agree with the passed ballot measure. Politicians love to talk up the power of the constituency when they’re winning elections but immediately claim the people are too stupid to participate in governance when they pass measures these politicians don’t like.

The bigger problem, though, is Ken Paxton, the state’s attorney general, who is more than willing to take away things Texas voters have said they actually wanted:

Now that Dallas voters have approved to decriminalize larger amounts of marijuana, the city could likely face a lawsuit from the state.

Texas Attorney General Ken Paxton has sued other Texas municipalities for similar attempts to make marijuana more readily available. That includes Denton, Austin and three other Texas cities.

Yet another official who likes the democratic process when things go his way, but is more than willing to remove the democracy from the democratic process if he doesn’t like the outcome. He sounds exactly like the president-elect, who spent most of his campaign telling supporters this would be the most fraudulent election ever but seems to have forgotten all about this allegedly widespread voter fraud the moment he won the popular vote.

We’ll have to see how long it takes for Dallas PD leadership to pass this information on to officers. Chances are, officers will continue to use the “odor of marijuana” excuse to engage in warrantless searches until one of them ends up in court. It always seems to take forever for messages like this to sink in when those that need to hear it the most are the least interested in hearing it.

We’ve got another cross-post for you this week, and this time it’s also a live panel recording. Recently, Mike joined a panel at Boston University Questrom School of Business which was recorded for WBUR’s Is Business Broken? podcast, alongside professors Marshall Van Alstyne and Nadine Strossen, and moderated by host Curt Nickisch. The discussion is all about Section 230 specifically and the regulation of speech more broadly, and you can listen to the whole thing here on this week’s episode.

You can also download this episode directly in MP3 format.

Follow the Techdirt Podcast on Soundcloud, subscribe via Apple Podcasts or Spotify, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

Despite widespread beliefs to the contrary, patents are not a measure of innovation, nor are they needed for companies to thrive — something even Elon Musk understands. But one aspect of patents that is rarely considered is their morality. The European Patent Office’s Board of Appeal wrestled with this issue in an interesting case involving the plant extract simalikalactone E and its use to treat malaria. As the patent admits: “simalikalactone E (SkE) was isolated from Quassia amara (Simaroubaceae), a medicinal plant widely used in the Amazon for the treatment of malaria.” In other words, the use of the plant extract to treat malaria was already known among Amazonian peoples, who naturally did not try to patent it. Related to this, an objection was raised to the patent, on the grounds that it was contrary to “morality”, as defined by Article 53 of the European Patent Convention:

European patents shall not be granted in respect of:

(a) inventions the commercial exploitation of which would be contrary to “ordre public” or morality; such exploitation shall not be deemed to be so contrary merely because it is prohibited by law or regulation in some or all of the Contracting States;

The IPKat has a good explanation of the reasoning behind the objection:

the Opponent argued that the invention represented “biopiracy” on behalf of the patentee against the indigenous people involved in the original research. Specifically, the Opponent submitted that the interactions with the indigenous communities had been conducted in an immoral fashion, involving deception and an abuse of trust. According to the Opponent, the members of the communities involved had not been fully and transparently informed of the nature of the research project, its objectives, the filing of the patent, and other risks and benefits of the project to community members and their knowledge. As such, the Opponent argued, the IP rights of the communities over their traditional knowledge had been violated. The Opponent submitted that the deception and breach of trust displayed was contrary to ordre public and would jeopardize relations between indigenous and local communities and researchers.

However, the EPO’s Board of Appeal rejected this argument for an interesting reason:

The exclusion to patentability provided for in Article 53(a) EPC requires the stated offense to morality to reside in the “commercial exploitation” of the claimed invention. The claims of the patent were directed to the formula of the antimalarial, a process of manufacturing the antimalarial and its use in therapy. Given the dire need for effective antimalarial medication, the Board of Appeal found that the commercial exploitation of these inventions would not be contrary to public morality (on the contrary, they would be beneficial to society). Specifically, the Board of Appeal made a clear distinction between the morality of the commercial exploitation of an invention, and the morality of how the invention itself occurred (r.2.14).

That is, patents can be excluded if their commercial exploitation would be immoral, but it doesn’t matter if the way the invention claimed in the patent was made turned out to be immoral. European patent law simply doesn’t care about that aspect. Fortunately, that’s not the end of this particular story, as the IPKat post explains:

Questions over the morality of scientific discovery must therefore be dealt with in a different forum than the patent office. In this case, despite the decision of the Board of Appeal, the European patent in question appears to have lapsed on all member states due to failure to pay renewal fees. The US case has similarly been abandoned. It thus appears that the substantial political pressures on the [patent-holder, the French Institute for Development Research] outside the patent system have impacted their desire and/or ability to commercialise the invention.

It’s good that this kind of pressure works, but it would be better if the patent world cared more about the morality of inventors’ actions in the first place.

Follow me @glynmoody on Bluesky and on Mastodon.

It should be clear by now that being a fan of one particular politician doesn’t make you a member of a “protected” group. It’s just a stupid as cops claiming they should be given more rights and protections because people just don’t seem to be showering them with unconditional love in recent years. Wearing clothing that you’re hoping will provoke a response (either supportive or otherwise) doesn’t make you a victim of actionable harassment just because it didn’t trigger the responses you hoped it would.

Triggered MAGA fan B.W. (a minor, hence the initials) sued the Austin, Texas Independent School District (AISD) after his MAGA gear provoked completely expected responses, like other students (and even some faculty members) calling him a bigot and a racist and suggesting he might be a fan of the KKK. B.W.’s parents ultimately pulled him from the school after belatedly discovering that their son’s attempted owning of the libs had backfired.

The lawsuit was brought under Title VI, a legal authority that forbids “harassment based on the victim’s race, color, or national origin.” The complaint (now in its fourth amended version) tried to claim B.W. was being “harassed” because he was white, rather than because of his repeated displays of support for Donald Trump.

This obviously wasn’t pleasant for B.W., but one can assume he hoped to trigger some libs, and the libs were indeed triggered, leading to this sort of thing. From the decision [PDF], which is written by Judge Priscilla Richman, whose judicial record would seem to indicate people might have expected her to come down on the other side of this issue.

B.W.’s operative Complaint alleged that a math class aide “repeatedly called B.W. ‘Whitey,’” and a group of students shouted at him and other Cross Country teammates, “here are all the white boys!” A teacher asked him if he “enjoyed his White Gospel Music.” A substitute teacher told B.W., “I will not have a white man talk to me about gender issues!” A teacher told B.W. that she was “getting concerned about how many white people there are.” A student told B.W., “America is only for white people,” and another student “repeat[ed] the evils of the white race in American history” to B.W.

While this probably wasn’t pleasant for B.W., it really doesn’t sound like the sort of harassment that would result in a lawsuit. This is actually pretty mild, at least in terms of what’s recounted at the beginning of the decision. (There’s more in the lengthy dissent, which involves the back nine (judges) participating in this en banc hearing, who disagreed with the majority decision written by Richman.) It doesn’t matter that one student created a meme that made B.W. look like a KKK member. Nor does it matter that B.W. was regularly called a “racist” by other students (who also allegedly repeatedly “flicked him off” and “cussed at him).

What matters here is what the law says, in terms of harassment under Title VI. And B.W.’s attempt to secure a victory under this legal statute was immediately undercut by his own lawsuit. (Emphasis in the original.)

B.W.’s own pleadings, which we “must accept as true,” assert that the meme was motivated by politics and not race. B.W.’s complaint specifically alleges that “D.K. admitted to the school that he made the KKK meme about B.W. because D.K.’s father told him not [to] be friends with anyone who was a Conservative.”

[…]

Being called a racist is not the equivalent of being harassed based on the harassment victim’s race. Being accused of racism says nothing about the race of the accused. A racist or alleged racist could be a person of virtually any color. The pejorative term is used because of the accused’s own alleged views about race, not because of the accused’s race. The “flicking off” and “cussed at” allegations, read in context, were alleged to have been motivated by B.W.’s “Conservative and Republican political opinions” and his support for Donald Trump. The complaint does not allege they were racially motivated.

As awful as this is (I mean, at least in terms of faculty members participating in the dogpiling), this simply isn’t actionable. MAGA is not a race, color, or religion, even though it definitely draws more people of one specific race and color and whose acolytes often act as though supporting Donald Trump is an expression of Christian faith.

The majority opinion affirming the lower court’s dismissal of the suit is five pages. The dissents are nearly five times a long (24 pages). And even if I don’t agree harassing someone over their MAGA gear is actionable under Title VI, the dissenting opinions make some decent points about how MAGA could be a stand-in for “white,” especially when applied in this fashion to other races and competing political beliefs.

First, the dissent says there’s at least some evidence hateful acts were directed at B.K. because of his race, especially when his pleadings are “accepted as true” during this stage of the legal proceedings.

In his complaint, B.W. includes recurrent incidents of harassment that explicitly reference his race. He alleges that students repeatedly recited the “evils of the white race” to B.W.; that students ran into the locker room and proclaimed (with B.W. present) “here are all the white boys!”; and that students daily abused B.W. both physically and verbally. Worst of all, B.W. alleges that another student beat him bloody and then bragged to the school that he had done so “because B.W. was white.” B.W. alleges that he was subjected to daily harassment from his classmates following that public pronouncement of racial animus. Adding insult to B.W.’s obvious physical injuries, much of the harassment came from school teachers.

Then there’s the KKK meme, which likely would not have been created if B.K. was not white. And that’s problematic, because it seems the majority might have sided with B.K. if he hadn’t been white and subject to similar harassment due to perceived race.

The KKK meme is further evidence of race-based harassment. Groups like the KKK and the Nazis are white-supremacist organizations that generally have a racial association tied to membership. Thus, a meme depicting B.W. as a member of the KKK has a racial component, particularly in the context of the other overtly race-based harassment that B.W. alleges occurred here. When an individual is accused of membership in a politically odious organization associated with that individual’s protected characteristic, such an accusation amounts to stereotyping based on that protected characteristic. Suppose instead that a student made a meme of an Afghan classmate as a member of the Taliban or Al Qaeda. Such a meme obviously implicates the student’s protected characteristics.

But, ultimately, there’s another factor in play here — elements admitted in B.K.’s own pleadings: he wore MAGA gear, something that closely aligned him with the views expressed by MAGA figureheads, many of which are racists, bigots, and — in far too many cases — closely aligned with white nationalists. In my opinion, that’s the wild card. It would be far easier to prove the harassment was solely linked to B.K. being white if he hadn’t chose to repeatedly wear shirts and hats that linked him with a bunch of other (similarly white) bigots. If the harassment had occurred without this factor in play, it would clearly have been solely racially-motivated. But B.K. wore stuff he knew would inevitably provoke negative responses. And then he sued when this gambit paid off.

It is inexcusable that staff members participated in the alleged bullying, and perhaps there’s still something under state law that might earn B.K. a win, but under Title VI, it’s just not going to work because the plaintiff’s admitted “political beliefs” don’t make him part of a protected group.

You have likely heard that Donald Trump has nominated conspiracy theorist Robert F. Kennedy Jr. to be his next Secretary of Health and Human Services. This is dangerous and cruel for a very long list of reasons, but his nomination also exposes the critical flaws in a bill proposed by Senators Amy Klobuchar and Ben Ray Lujan just a few years ago.

In 2021, Senators Klobuchar and Lujan introduced a bill that would have given the Secretary of Health and Human Services the power to unilaterally declare what constitutes “health misinformation” online. Under the proposed law, a new exemption to Section 230 would be created for any content deemed misinformation by the HHS Secretary, which could open tech platforms up to lawsuits, creating immense pressure to block such content.

At the time, the bill seemed misguided and unconstitutional. In the hands of an anti-science zealot like RFK Jr. as HHS Secretary, it would be catastrophic.

From the bill:

Not later than 30 days after the date of enactment of this Act, the Secretary of Health and Human Services, in consultation with the heads of other relevant Federal agencies and outside experts determined appropriate by the Secretary, shall issue guidance regarding what constitutes health misinformation…

And then, any site hosting content so designated would be “treated as a publisher or speaker” of such “health misinformation,” effectively opening them up to lawsuits.

If that bill had become law, RFK Jr. could declare that factual information debunking his anti-vaccine conspiracy theories is “misinformation.” He could threaten lawsuits, or just unleash others to sue, to force social media platforms to silence anyone who corrects his dangerous nonsense about vaccines and autism.

Thankfully, Klobuchar and Lujan’s bill went nowhere, and for good reason. Giving a single political official the power to define “misinformation” runs counter to core First Amendment principles. What’s deemed “misinformation” could change radically from one administration to the next, creating a censorship regime beholden to electoral whims.

The RFK Jr. nomination illustrates exactly why we continually call out these kinds of bills. Because this is not the kind of power you want to give to the government (nor should you be able to under the First Amendment).

And if you don’t think that RFK Jr. wouldn’t take advantage of such a law had it been passed, you haven’t been paying attention. While RFK Jr. has been cosplaying as a “free speech” supporter of late, the reality is that he has a long and problematic history of trying to suppress speech and to punish people for their speech.

Even his latest “free speech crusade” is really a series of censorial failed lawsuits against social media companies for using their free speech rights to moderate his conspiracy theory nonsense. Even the very Trumpist Fifth Circuit just laughed one of his cases out of court a couple weeks ago.

But there’s an even longer, more disturbing history as well. A decade ago, he talked about how he believes his political opponents should be jailed for their speech, even calling them war criminals and accusing them of “treason.” Somewhat hilariously, at the time, he was talking about those who denied climate change and billionaires “impoverishing the rest of us.”

“They are enjoying making themselves billionaires by impoverishing the rest of us. Do I think they should be in jail, I think they should be enjoying three hots and a cot at the Hague with all the other war criminals,” Kennedy declared.

He might want to take a look at his new boss and the crew he’s hanging around with, given that Donald Trump has repeatedly denied climate change exists and promised to ramp up fossil fuel production in the country. And if we’re talking about billionaires impoverishing the rest of us, just take a look around you, Bobby.

Either way, the point is that RFK Jr. has a long history of deeply authoritarian and censorial instincts. He’s not a free speech supporter by any means. If Klobuchar and Lujan’s bill had been law, we would have just handed him the ability to censor any pushback to his dangerous views.

So, next time, can people actually listen to us when we raise the alarm about how problematic censorial bills are, and how they would be abused in the wrong hands?

We noted earlier this week how Trump had unsurprisingly picked Brendan Carr to head the FCC. We also pointed out how Carr’s “policies” are utterly indistinguishable from the interests of unpopular telecom and media giants like Comcast and AT&T. He’s going to demolish whatever’s left of the FCC’s consumer protection standards and media consolidation limits, and he’s not going to be subtle about it.

Carr is the dictionary definition of “regulatory capture.” He’s going to deliver the final killing blow to net neutrality (if the Trump-stacked courts don’t get to it first). He’s also going to take a hatchet to the FCC’s recent inquiry into shitty broadband usage caps, efforts to stop broadband “redlining” (read: racism in fiber deployment), good faith efforts to help the poor afford broadband, and efforts to stop your cable, phone, wireless, or broadband provider from ripping you off with shitty fees.

But as I dug through the mainstream reporting on Carr’s appointment, very few outlets seemed interested in making any of that clear to readers. The New York Times and Washington Post, for example, kept the focus largely on Carr’s animosity toward “big tech” companies for their “censorship of Conservatives” (read: doing the absolute bare minimum to thwart racist assholes and right wing propaganda on the internet).

The fact that Carr’s primary function at the FCC will be to coddle unpopular telecom and media giants in about thirty different ways barely warrants a mention. Over at the Cox Communications owned Atlanta Journal Constitution (whose owners will benefit from a Carr appointment in several different ways), Carr’s appointment is framed like this:

We’re a decade into Trumpism, and major outlets are still putting false claims unchallenged in headlines. Why do you think that is, exactly? Readers told me the Atlanta Journal Constitution just reprinted the already soft WAPO story on Carr’s appointment, but cut off much of the second half where consumer groups illustrate that the headline they chose is demonstrably false.

Most of the rest of the mainstream coverage wasn’t much better. Fox News, of course, chose to focus on the exciting new racist potential of the Carr pick, but they screwed up the sub-headline to make it sound like he actually supports diversity and inclusion initiatives:

USAToday parrots claims that Carr is “fighting for free speech,” but can’t be bothered to mention that that (1) isn’t fucking true, and (2) that his primary role will be to gut consumer protections like net neutrality. Reuters similarly can’t be bothered to mention the risk Carr poses to consumer protection. In Politico, Carr’s looming assault on telecom consumer protection warrants one sad paragraph.

I’m sure there was some selective editing at play, but several major telecom and media consumer rights folks went out of their way to help media outlets highlight how Carr is a “nice guy” (see, in order, NPR, CNN, NYT), which I’m sure will be helpful as he happily demolishes twenty-five years of consumer advocacy policy work and threatens media giants for criticizing authoritarian leadership:

If the public doesn’t sense adequate alarm from experts whose entire careers have been in consumer and media market protection, they’re not going to be alarmed. I understand the desire for some civility, but this is not an ordinary administration. These are fascists who are going to steadily disassemble the entirety of federal consumer protection and corporate oversight over drinks and giggles.

Meanwhile, yes, Carr’s mindless authoritarian animosity to “big tech” is absolutely worth discussing, as are his threats to pull the broadcast licenses of companies that criticize Trump (even though that will be no easy feat, even with a Trump-stocked court and muted FCC authority). But his primary goal at the FCC will be to be as errand boy to historically unpopular media and telecom giants, and downplaying (or ignoring) that fact does Carr and his industry buddies no shortage of favors.

Meanwhile if you thought mainstream press coverage during this last election season was feckless, authoritarian-normalizing mush, you ain’t seen nothin’ yet.

If this sounds familiar, sadly, it is.

Three years ago, the Fifth Circuit Appeals Court somehow arrived at the conclusion that tasing someone soaked in gasoline — an act of escalation that not only killed the suicidal person officers were supposed to rescuing but also burned the entire residence to the ground — was not excessive force. It was supposedly justified by the gasoline-soaked man’s threats that he would burn himself and the house down if officers kept advancing on him.

Robbing him of his life and his remaining autonomy, Arlington, Texas police officer Officer Guadrama discharged his Taser and made the man’s threats a reality. And it was still just considered to be the sort of thing cops should be doing by the Fifth Circuit court.

It went the other way here. In a California court, a federal judge has arrived at the opposite conclusion in a nearly identical incident. (via Courthouse News Service)

In this case, Paul Hall was despondent because his family refused to interact with him, apparently “fed up with him” for reasons that go unexplained. Feeling abandoned, Hall soaked himself in gasoline, sat on the floor in the middle of the house, and threatened to light himself on fire.

Officer John Gale of the Weed, California police department responded to the call. His actions, as well as those of Paul Hall, were captured by the officer’s body camera. To his credit, Officer Gale at least made some effort to defuse the situation by talking to Hall, who repeatedly reminded him he was covered in gasoline and ready to take his own life by igniting the lighter he held in one of his hands.

When that didn’t work, Gale tried to take the lighter by force by attempting to wrestle it out of Hall’s hands. When that didn’t work, Gale went back to his first tactic: yelling repeatedly for Hall to drop the lighter. This tactic didn’t work the first few dozen times, but according to the footage, Gale did this same thing more than 50 times, perhaps expecting he was due for a win.

Right before he set Hall on fire with his Taser, Officer Gale again ordered Hall to “drop the lighter” and to “put it down.” And right before his fired at Hall, Hall dropped his hands to his sides, possibly on his way to complying. But he never got a chance. That’s when Gale fired and that’s when Hall caught on fire.

Gale first insisted this wasn’t excessive force. The court says in some cases, these actions might not have been. But in this case, at best, that’s still an open question. And the reason it’s still a set of disputed facts is because the officer’s own body cam footage (arguably) contradicts his assertions. From the decision [PDF]:

Defendant Gale’s repeated assertion that Plaintiff Hall “appeared to be flicking the lighter to start” at the time Defendant Gale shot his taser is disputed by Plaintiff and arguably
contradicted by the body camera footage […] Upon review of the body camera footage, it is not undisputedly apparent to the Court that Plaintiff Hall appeared to be flicking the lighter to start. Thus, a reasonable jury could conclude, during his interactions with Defendant Gale, Plaintiff Hall did not attempt to ignite the lighter such that he posed an immediate threat that warranted intermediate force.

Then there’s the fact it appears Hall was finally attempting to comply with Gale’s demands moments before Gale decided to deploy his Taser.

Second, Plaintiff Hall alleges he complied with Defendant Gale’s commands to put down the lighter by moving his hands down by his side, including the one holding the lighter. The body camera footage confirms, shortly before Defendant Gale tased Plaintiff Hall, Plaintiff Hall had dropped both hands, including the one holding the lighter. The body camera footage also shows Defendant Gale shot Plaintiff Hall with the taser after Plaintiff Hall had dropped both of his hands. A reasonable jury could conclude any threat related to the lighter dissipated the moment Plaintiff Hall put his hands down.

That’s strike two. Strike three is the undeniable fact Hall wasn’t threatening anyone other than himself. And there’s plenty of evidence on the record that Officer Gale couldn’t have reasonably believed he was a threat to others because the officer made no attempt to remove other people from the house, didn’t even bother to bring in the fire extinguisher he had in his squad car, or hold off on taking any action until the fire department arrived. If he really thought he needed to save others from the immediate threat of a fire, he would have taken those actions. In the end, he was the one to ignite the fire that threatened others, all while claiming this was the only way to prevent the man he set on fire from harming other people.

And here’s where the decision referenced in the opening of this post comes into play. Completely ridiculously, Officer Gale cited that decision in support of his qualified immunity request despite (1) the case was handled by a different circuit, (2) the decision issued by the Fifth was non-precedential, and (most importantly) (3) had been issued two years after he set Paul Hall on fire. As any plaintiff knows and every cop defendant should know, you can’t cite something as precedent when it happens after the incidents in dispute. The clue is in the goddamn word, which requires something to precede something else to be relevant, not arrive after the fact.

Immunity is denied because even if the court were inclined to treat a non-binding decision issued two years after Officer Gale set Paul Hall on fire with his taser, the facts of the cases are different enough Officer Gale couldn’t reasonably believe non-binding non-precedent put him in the clear for deciding setting someone on fire for the crime of threatening to set themselves on fire was justified.

It’s bad enough the body cam footage contradicted the officer’s claims. It’s even worse that his lawyer thought he could get some QI for his client by time-traveling to the future (so to speak) to find cases supporting his client’s actions.