Judge Nixes Baca’s Legal Move to Get ACLU Axed from Class Action Suit….and More

In January of this year, the ACLU of Southern California brought a massive class action suit, known as Rosas v. Baca, against the Sheriff’s Department charging that Sheriff Lee Baca and his top command staff had looked the other way in the face of a long-standing, widespread pattern of violence by deputies against inmates in the Los Angeles County Jails.

Naturally, the sheriff’s lawyers tried to find legal ways to make the lawsuit vanish.

(FYI A class action suit of this nature doesn’t look for any kind of financial payout, but for “injunctive relief.” In other words, the suit is designed to investigate wrongdoing through the discovery process, and then to force reform.)

In any case, when the LASD’s attorneys’ first stab at getting the suit dismissed was a nonstarter, they next tried to get the ACLU removed as counsel from the suit, saying that the fact that the ACLU folks had discovered all this alleged abuse when they were jails monitors, meant that the incidents of abuse they discovered were privileged, and thus couldn’t be used in a lawsuit—or legal jargon to that effect.

(In other words, the wrongdoing you discovered while you were legally monitoring the jails for another kind of wrongdoing, cannot be used to bring a class action suit alleging massive wrongdoing in the jails now. Sure, that works.)

Judge Dean Pragerson has been the most recent jurist overseeing the long standing Rutherford agreement, the result of a 1978 decision on a 1975 class action suit, that resulted in the ACLU being assigned to send monitors into the jails in the first place. This means that Pragerson is not unfamiliar with the reports of abuse that have been bleeding out of the jails in the last few years.

Perhaps for this reason, the judge flicked away the notion of the ACLU being prohibited from bringing suit as counsel.

“And so now the case goes forward,” said a very pleased Peter Eliasberg, the So Cal ACLU’s legal director. “The decision means that we can seek relief systemwide.”

Yep. And that’s a good thing.

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APPEALS COURTS AGRESS SOUTH PARK’S WHAT, WHAT (IN THE BUTT) PARODY IS FAIR USE

In an important victory for free speech, on Thursday, the 7th Circuit Court of Appeals agreed that South Park’s parody of the raunchy-ish and very viral internet" frameborder="0" allowfullscreen> hit song by Samwell was permissible under the Fair Use. (Warning on that link: NSFW.)

Corynne McSherry has the story over at the Electronic Frontier Foundation, which filed an amicus brief in the case Here’s a clip:

South Park aired the “What What” parody in a 2008 episode critiquing the popularity of absurd online videos. Two years later, copyright owner Brownmark Films sued Viacom and Comedy Central, alleging copyright infringement. Recognizing the episode was an obvious fair use, a federal judge promptly dismissed the case. Brownmark appealed, claiming that fair use cannot be decided on a motion to dismiss, no matter how obvious. Viacom fought back, and EFF filed an amicus brief in support, explaining that being able to dismiss a case early in litigation—before legal costs can really add up—is crucial to protect free speech and discourage frivolous litigation.

The appeals court agreed, calling the district court’s decision “well-reasoned and delightful”

[SNIP]

These rulings are important not only to protect speech, but also in fighting back against copyright trolls. Trolls depend on the threat of legal costs to encourage people to settle cases even though they might have legitimate defenses. Citing EFF’s brief, Seventh Circuit acknowledged the problem:

[I]nfringement suits are often baseless shakedowns. Ruinous discovery heightens the incentive to settle rather than defend these frivolous suits.

Thank you to the 7th Circuit and to the EFF. (And down with copyright trolls.)

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IS PEPPER SPRAY A GOOD IDEA IN YOUTH FACILITIES? NEW YORK SAYS NO, LOS ANGELES AND SAN DIEGO SAY, OH, HECK YEAH!

San Diego City Beat’s Dave Maas explores the use of OC Spray or Pepper spray, as a control technique in juvenile detention facilities, after finding through a public records act request that, last year, SD’s youth facilities used OC spray 491 times.

Here’s a clip:

According to the Council of Juvenile Correctional Administrators (CJCA), only 14 states allow the use of pepper spray in juvenile facilities, but in most cases, it’s a last-resort measure, limited to riot-level emergencies. Only five of those states, including California, allow staff to carry it on their person, as is the case in San Diego. CJCA notes in its 2011 report on the issue that no studies have been conducted on the safety of using pepper spray on juveniles and that most juvenile correctional agencies shun its use “because of the harm it causes to youths and the negative impact on staff-youth relationships.”

Gladys Carrión, commissioner of the New York State Office of Children and Family Services, which oversees 49 youth-detention programs, says that’s why New York has never used it.

“It’s dangerous,” Carrión says. “I think it doesn’t teach the young person a thing about how to manage their behavior. It really doesn’t teach staff any skills to be able to engage with young people. I don’t see it as an effective tool.”It recent years, many states have voluntarily traded OC spray for new interpersonal techniques designed to de-escalate conflicts. For other jurisdictions, it’s taken lawsuits, federal investigations and court orders. In 2006, San Diego County Probation told The San Diego Union-Tribune that it was weighing sweeping revisions to its pepper-spray policies after a prisoner-rights group threatened legal action.

LA County probation camps used to use OC spray at a rapid clip, but there has been some slowing of the use due to demands made by federal monitors.

This is a good issue to look into further.