Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘nuisance’

Hearing might be required before city can close business under nuisance-abatement law

Earlier this month we linked the story of a Dallas car wash owner whose business was shut down by the city under a nuisance abatement law because it was deemed to attract crime, even though the owner was not alleged to have done anything to further the crime and in fact had called police many times to complain about it.

Last month a Sixth Circuit panel, over a dissent, ruled that the city of Saginaw, Mich. may have violated Rita Johnson’s rights when it shut down her Rita’s Southern Soul Café without first according her a hearing. Johnson had rented out her restaurant one evening to a private party; “For unknown reasons, individuals unaffiliated with her or the party emerged from a vehicle that night and began shooting at the restaurant.” Police surmise that rivalry between gangs might have prompted the attack, but neither perpetrators nor motive were established. The case now goes back for further litigation in which Johnson will be allowed to argue that a hearing before shutting down her café would have been warranted. [Johnson v. Morales via Institute for Justice “Short Circuit”]

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Dallas businessman calls cops 100x to report local crime. And then…

Under a nuisance abatement law enacted by the city of Dallas, the city can designate local businesses that it considers to be the scene of recurrent crime, and then shut down those businesses. It did this to a car wash whose owner proceeded to obtain from the city and make public more than a hundred 911 call records in which he had pleaded with the city to come do something about criminal activity. “Neighborhood leaders have been licking their chops on social media talking about what they’ll do with his two large corner lots when the city finally squeezes him hard enough to make him sell.” [Jim Schutze, Dallas Observer via Tim Cushing, TechDirt]

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Environment roundup

  • “Lolita the killer whale has lived at Miami Seaquarium since 1970. Do the conditions of her confinement, including sharing her tank with dolphins that engage in inappropriate sexual behavior, amount to ‘harm’ and ‘harassment’ in violation of federal statute? The Eleventh Circuit says no.” [John Ross, Short Circuit, on PETA v. Miami Seaquarium]
  • California suit about Prop 65 warnings on coffee grinds on [Sara Randazzo/WSJ, Pierre Lemieux/EconLog, earlier]
  • NYC mayor De Blasio, who recently filed long-shot suit, says he hopes to “bring death knell to fossil fuel industry” [John Breslin, Legal NewsLine] “People don’t need to smoke cigarettes, but they have needed energy for many decades,” one of many reasons suing Big Oil is different from suing Big Tobacco [Amy Harder, Axios]
  • Squirrel rescue saga: “I begged and pleaded for a few more weeks, but was essentially told I needed to release him even though it was the middle of winter.” [Christine Clarridge, Seattle Times]
  • Aluminum smelter vs. orchards: a historic instance of nuisance litigation working well as a regulatory method? [Douglas Kysar, SSRN]
  • “Privatizing Federal Grazing Lands” [Chris Edwards, Cato]

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Law of the Nursery

‘It’s my toy’ – property law
‘You promised me’ – contract law
‘He hit me first’ – criminal law
‘Daddy said I could’ – constitutional law

— the late Harold Berman of Harvard Law School, via John McGinnis, Law and Liberty.

Some others, via social media:

‘Mama said NO’- Supreme Court decision — Cathy Maddox on Twitter
‘Last week you said’ – case law — Dave Ferguson on Twitter
‘Stop repeating everything I say’ – copyright law — John Althouse Cohen
‘Make him turn it down’ — nuisance law

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Suit seeks to make tech firms pay for campaign against distracted driving

“In the lawsuit, the Coalition Against Distracted Driving and Stephen L. Joseph, as an individual, seek an injunction against Apple, Samsung, Google, and Microsoft, requiring those companies to pay $1 billion annually to fund an ‘effective and ongoing national public education campaign’ to educate drivers on the dangers of using smart phones and smart watches while driving.” The suit seeks to define the behavior at issue as a nuisance under California law. [Jared McClain, Washington Legal Foundation]

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Washington, D.C.: “Court orders man to stop smoking in his own home”

Lawyers Brendan and Nessa Coppinger moved into their row house in Washington, D.C.’s Capitol Hill neighborhood last September. They have now gotten a judge to agree to a temporary restraining order prohibiting their neighbor, Edwin Gray, from smoking or allowing anyone to smoke on his property. The Coppingers say the smoke is getting onto their premises through openings between the connected structures and “is harming them and their children”; they also want cash damages. The Gray family has owned the house next door for 50 years. [AP/ABC13 via ABA Journal; Washington Post]

Benjamin Freed at Washingtonian was kind enough to quote me at length making several points about this and similar litigation: 1) it would have been thrown out over most of the course of legal history because courts insisted that nuisance and similar claims (in this case couched as “negligence, nuisance, and trespassing”) exceed a de minimis standard and, in a claim for damages, required proof of actual harm going well beyond “you hit me with a molecule and that could kill me”; 2) smoking is uniquely disapproved nowadays which means some courts are willing to entertain de minimis claims that they would not for other common neighborhood nuisances; 3) if carcinogenic smoke drifting across property lines is to be stopped, both backyard grills and barbecues and common fireplaces are in trouble, at least if courts behaved logically — a very big if, of course. (It should be noted that the lawsuit includes some claims — such as that an unrepaired chimney at the Grays’ is contributing to the smoke problem — that might fit more readily into traditional legal categories.)

The temporary court order, incidentally, also bars the Gray family from allowing any smoking of now-legal marijuana in their house, which prompts this additional thought:

“It does make you wonder why conservative opponents of marijuana would bother to fight legalization in DC when instead they can let it go through and get rich suing over it,” Olson says.

Whole thing here.

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Libertarians, land use and local government

Picking up on some provocative observations by Prof. Kenneth Stahl at Concurring Opinions, I’ve got a new post at Cato arguing that “libertarian analysis better explains what actually goes on in local government than does the standard progressive faith in the competence of government to correct supposed market failure.” Ilya Somin goes on to tackle the same question at Volokh Conspiracy. In a second post, Prof. Stahl explains why he thinks nuisance law, often cited by libertarians as a superior way of handling conflicts between adjoining land uses, doesn’t live up to such hopes in practice. Update: A third post by Stahl.

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Two makes a trend: Reddit “Ask Me Anythings”

Two personalities often linked in this space, Prof. Richard Epstein and Popehat’s Ken White, were both on Reddit yesterday doing an interactive feature called “Ask Me Anything.” Epstein’s is here, and White’s is here.

More: Epstein in response to a question on originalism: “The style of interpretation used by the founders was much more sophisticated than the attention to text. Implied limitations on government, as through the police power, were part of the picture, as were implied protections of the government, as with sovereign immunity. My new book out later this year, The Classical Liberal Constitution, addresses these issues.”

In response to a question about his rule-utilitarian rationale for libertarian principles: “My view is that the deontological explanations tend to fail because they cannot account for such common practices at Intellectual Property, taxation or eminent domain. The theory has no way to deal with forced exchanges, which is what taxation and eminent domain are about.”

On libertarianism and pollution: “externality control is an essential party of the overall libertarian theory, and that means control of nuisances. … It is a case where it is easier to mischaracterize a system than to understand it. Nuisance law has many distinctive remedial features and at times requires collective enforcement of the basic norm against invasion. But there is nothing about the theory which says that the way to make people happy and prosperous is to choke them.”

Also: why the movie Body Heat got the Rule Against Perpetuities wrong, and why he’s not a fan of the German way to organize legal academia.

And Ken White answers questions about when to talk to the police; pro bono cases he’s proud of having helped on; what to say to someone who wound up going to law school in part because of his blog; how having his identity “outed” affected his law practice; and three kinds of crazy case that result in Popehat posts.

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Ontario: “Neighbor wants $25,000 for compensation over noise of boy playing basketball in his driveway”

Canada: “A woman in Peterborough, ON is demanding $25,000 in compensation from her neighbour because her teenage son is playing basketball too loudly in his driveway. … [Her] lawyers said in a letter she is a professional writer who requires peace and quiet to earn her living and there’s a growing body of evidence that suggests environmental noise is linked to cardiovascular disease.” She has unsuccessfully sought to involve police, fire, and even the province’s environmental commissioner against the playing. [Sun]

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