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Professional Troublemaker

 Jonathan Corbett, Civil Rights Advocate

How the California Bar Actually Grades the First Year Law Students’ Exam

fylsx-real-gradingI’ve made a few posts discussing California’s First Year Law Students’ Exam (the “FYLSX”), noting that I failed my first attempt by a fraction of a percent when the Bar applied a grading formula different from that which was advertised, and then, using the knowledge gained of their altered grading scheme, passed on my second try so spectacularly that the Bar published one of my essays as an example of how to write their exam.  I also briefly mentioned that I — as I’m known to do — filed suit to ask a judge to effectively require them to grade like they say they will and be more transparent about the exam and how they grade it.

The particular dispute was that they advertised that the multiple-choice section and the essay section of the exam would be “converted to the same 400-point scale” in order to “give[] these sections equal weight.”  When I received my score report from the first exam, I noticed that the scaling formula used by the bar resulted in it being impossible to score more than about 362 points even if every question was answered correctly, and likewise, it was possible to score far more than 400 points on the essays.

The attorney for the Bar assigned to the case disclosed additional documents, formerly considered to be secret and until now never disclosed to law students, to me yesterday that all but flatly admit that not only were the sections not weighted equally, but they also didn’t use a 400-point scale!  See if you can follow this tortured grading system they describe, because it took me several reads to figure it out:

Multiple-choice raw scores (i.e., number of items answered correctly) were equated to the June 1998, 2011, and October 2013 exams using 21 items that were common to each of these exams.  The equating formula was as follows:

Multiple Choice Scale = (3.4092 x raw multiple-choice score) + 21.6267

The candidates’ raw total essay scores were scaled to a score distribution that had the same mean and standard deviation as their multiple choice scores using the following formula:

Essay Scale = (2.3536 x raw essay total score) + -442.389

A candidate’s total score was the sum of that candidates’ multiple choice and essay scores.

What I gather from this is that 21 of the 100 multiple choice questions were repeats of previous years, and based on how well students did on those 21 questions, their grade on the entire 100 questions was curved.  Then, they calculated the average multiple choice score and the standard deviation, and curved the essay scores such that the average student gets the same score on that section as the multiple choice, and the score distribution was normalized to the same standard deviation.

From this it is clear:

  1. This has nothing to do with a 400-point scale per section.  The number 400 does not even appear in this internal document regarding their grading scheme.  The scale is created simply by comparing this group’s scores to previous scores and trying to curve it accordingly.  You’ll notice that if you plug in “100” as your raw multiple-choice score (a perfect 100 out of 100 questions) into the formula provided, the maximum score attainable is 362.5467.  Not 400.
  2. The sections do not have “equal weight.”  Saying that the average test taker got the same score on both their multiple-choice and their essay questions is not the same thing as saying “half your grade comes from multiple-choice, and half from the essays.”  Whether the essays count more or less than the multiple-choice section depends entirely on how well the other students do on their exams.  This is not equality, it is normalization.

So, for those taking the June 2017 exam, know this: on both exams I sat for, the essays counted far more than the multiple-choice.  You should therefore be spending far more time studying how to write a good essay than how to select A, B, C, or D correctly, unless your multiple-choice practice exams are turning out abysmally (for more study tips, see my previous post).  Hopefully by the October 2017 exam, a judge will have “persuaded” them to abandon this system.

London Metro Police Caught Spying on E-mails of Journalists and Protestors

jenny_jonesWhile many people have little problem allowing governments vast snooping privileges when investigating “terrorists,” it’s been called out again and again that governments are incapable of showing any such restraint.  Many of the headlines are dominated by the U.S. and our struggles with high-tech abuse from organizations like the NSA, but government assholery isn’t an American-specific problem: last week, London Metro Police were exposed as “hacking” the emails of various journalists and protestors.

We know this information thanks to Jenny Jones, a Green Party representative who exposed the existence of this unit in an article in The Guardian. She became privy to this information thanks to a letter written to her from a whistleblower with inside knowledge about the unit.

The letter she received basically reveals that the police have been illegally accessing the email accounts of individuals for many years.  The letter claims that London police asked the police in India to get the passwords for them, and in turn, Indian police hired various hackers to do it for them. Once these hackers got the passwords, they were sent back to the Indian police, who then sent them to London police. This has been going on for years, and the whistleblower claimed that the unit had no respect for the law and didn’t have any regard for the personal privacy of individuals.

Consider the absurdity of there existing a secret unit in a local police department that has the ability to do such hacking (or sometimes, apparently, outsource the hacking to India).  U.K. law apparently allows such spying only to combat terrorism or a major crime, which probably means it should be taken outside of the hands of municipal cops.  Yet the NYPD here in the U.S. also considers its job to include international terrorism, to the point of having thousands of cops who work in locations other than New York city.

It is still very early in the “investigation,” so it is yet to be seen if exposing the matter will result in change. But, if these allegations prove to be accurate, it will be a serious blow to the reputation of the police force and another reminder that handing over keys to the government is a bad idea, even if they allege they will only use those keys when absolutely necessary — because time and time again, all governments everywhere have shown this to be a fantasy.

United Airlines Reports Man For Suspected Child Trafficking Because His Skin is Darker Than Daughter’s

Osvaldo Maciel
Obviously, Osvaldo Maciel might be a child trafficker, as he’s male, Mexican, and with a child, muses United Airlines flight attendants.

It was a tough choice between the title above and, “United Airlines Hits Bottom, Digs.”  A week after losing close to a billion dollars in share value after forcing a ticketed, seated passenger to get off a plane such that one of their own staff could take his seat, via police who caused enough injury to require hospitalization in the process, and 2 weeks after they denied 2 middle school girls boarding under a sexist dress code policy they apply to family members of United employees, you might think that United would be on their best behavior.

“Hold my beer,” United CEO Oscar Munoz can metaphorically (if not literally) be heard shouting across the terminal.

Earlier this week, a New York mom reported that she was required to go to the U.S. Customs & Border Patrol office at Newark Airport to pick up her husband and young daughter, on vacation in Mexico for a week, because a passenger presenting no reason other than the daughter’s skin color was lighter than the father’s told a United flight attendant that she found the pair to be suspicious, and United, apparently agreeing, had federal law enforcement meet the plane.  Mom is of Irish descent, and dad, Mexican, and this by itself is enough to get dragged off the flight upon arrival, assuming you were allowed to fly in your own seat in the first place:

After our 3-year-old snoozed on her father’s lap for most of the flight, the plane landed. He texted me to tell me they had arrived. When the plane taxied to the gate, however, a number of officers from the Port Authority and Customs and Border Patrol boarded the plane, approached my husband and instructed him to grab his carry-ons and follow them. He and our daughter were escorted out of the plane before anyone else could get off.

The passenger who shared her “concern” with the flight attendants had been sitting next to my husband. According to him, she had been friendly throughout the flight, but my husband noticed her strange obsession with our daughter, sometimes throwing her body over his to try to engage my daughter.

As compensation for this “re-accommodation,” as surely Mr. Munoz would call it, United offered the family a $100 travel voucher.

I think what is even more surprising to me is that the commentary on even the strongly left-leaning Huffington Post, who appears to have broke the story, contained a plethora of comments defending the actions of the passenger, flight attendants, and CBP, because it’s always “better to be safe than sorry” (just as they would assuredly dismiss the TSA touching your genitals with “anything to keep us safer”).  (Click the little thought bubble on the left to read)

Alexis Nola, for example, is a fan of “see something, say something…”

alexis-nola-lookscount

…and pay no mind to the fact that she was sitting peacefully with her father for the whole flight, because she may have been too drugged to express her situation, even though she could walk on and off the plane…

alexis-nola-drugged

Kimberly Ziegelheafer wants us to know that child trafficking is “running rampant” and, apparently, stopping every adult/child pair who does not look alike (er, let’s be real here, it’s only a father/child pair who would encounter this form of discrimination), dragging them into the back room of a CBP office, and not releasing them until someone female alleges that she is the mother and all is well…

kimberly-zeigelheafer-allthetime

Carolyn Sue Greig alleges she would have baked cookies for these assholes, had it been her husband and child…

carolyn-sue-greig-howwouldyoufeel

But I assume the white woman from Texas with 2 first names has probably never experienced discrimination in her life and does not understand that yes, this is a big deal.  There are millions of children in this country with step-parents who look nothing like their child, and they don’t deserve to be dragged off of flights.  It’s traumatizing to the child and, frankly, to the adult as well.  It also doesn’t take more than a cursory search of the Internet to find that fathers alone with child are regularly given extra scrutiny, whether it’s at the playground or, apparently, simply traveling home.

United Airlines had no business reporting this incident to the police absent the suspecting passenger being able to articulate some reason for her suspicion beyond the color of their skin (the same goes for Muslim-looking men who are dragged off of planes after purely imagined suspicious behavior).  This family is owed much more than a $100 voucher, and I, for one, hope to see Mr. Munoz given the boot after another billion gets wiped off their market cap.

NYPD Finally Ditches Mobile Body Scanner Plans

NYPD T-Ray ScannerLike the TSA, the NYPD enjoys collecting high-tech toys, and announced in 2012 that they too would be joining the body scanner game. In 2013 they published their recent acquisition of a van-mounted body scanner that can penetrate your clothing from across the street to see what you’ve got.  Upon hearing of this, I immediately sued the NYPD, seeking an injunction against their use.  A federal judge ruled that my suit was too early because I couldn’t yet show they were going to use it illegally.

So, I’ve been patiently waiting for the NYPD to go and use one of their vans in public to file a motion to re-open the case.  But, it appears the NYPD got the message: the scanners have been “collecting dust” and the NYPD announced that they have abandoned all plans to ever use it.  Why?

But civil libertarians raised privacy concerns and worried whether other items might be mistaken for a gun, leading to bad arrests.

The NYPD said that after an internal review, it was decided the machine would cause more problems than it was worth.

The Daily News was nice enough to call me for a quote, and I’ll definitely be considering this announcement a victory!

California Bar Posts My Essay as Example of How to Write Exam Answer

fylsx_q2I was pretty excited to be tipped off by one of my law school professors that the California Bar’s “Selected Answers” for the last administration of the First Year Law Students’ Exam were posted and that one of them looked familiar.

Each sitting of the exam, every student writes 4 essays, and out of the thousands written they picked mine for “Selected Answer A” to Question 2 of the October 2016 exam.

Pretty cool considering I’m presently suing the bar over the way they arbitrarily weight the essay sections and multiple-choice sections of the exam differently, despite promising that they don’t, and then refused to provide documents when confronted with a public records request (original post, new amended complaint).  It’s also amazing how 85 out of 100 was apparently the best score on this exam question, further highlighting the absurdity of their grading.  Hopefully I’ll be able to bring some transparency to their grading process so that law students can get an accurate idea of what to study and how their knowledge will be measured.

Nonetheless, I’m glad they like my writing! 🙂

United Airlines Fiasco: Was It “Legal?”

United GestapoMost have heard by now of the blunder by United Airlines in forcibly removing a man who had paid for a ticket and already taken his seat on the airplane so that they could instead accommodate some of their own employees.  The man was injured when airport police apparently dropped him in the process, and the video taken by other passengers went viral.  To add some gasoline to the fire, the CEO of United tweeted to “apologize for having to re-accommodate” the man, proving that the company obviously misses the point.  This all comes two weeks after the airline was lambasted in the media for its sexist dress code when they denied boarding to two young girls in leggings (this time before the passengers entered the aircraft).

But, the question that I’ve received at least a dozen times in the past 48 hours is: Was what United did legal?  Relatedly, was the man doing something illegal?  Will he win in a lawsuit?

Let’s find out…

Could United legally remove him from the flight?

The answer to this question is “certainly yes.”  Here’s why.

When you are given permission to enter upon the property of another, legally you are given what is called a “license.”  The biggest difference between a “license” to use property and having, say, a lease giving you the right to exclusive possession of the property for a period of time, is that the license is freely revocable at all times, regardless of whether the licensee and licensor have a contract that says otherwise.

Why?  Because we are dealing with two different areas of law here.  Property law governs the ownership of property and the rights and responsibilities of property owners.  The above rule about revocability of licenses comes from property law.  Contract law, on the other hand, generally allows any party to breach their contract duties at any time, under penalty of having to pay damages to the non-breaching party (see also: “efficient breach” theory).

So, the question of whether the contract of carriage allowed United to remove this man is entirely irrelevant as to whether they had the power to do so.  Either way, United could legally oblige him to leave the aircraft because they are “allowed” to breach any contract they may have had with him, but if he had a contract allowing him to stay, he gets to ask for money.

Was the man doing something illegal?

A friend of mine, who is usually quite on top of things, pointed out that federal law requires compliance with crewmember instructions.  Or, at least, that’s what that pre-flight announcement says, if you aren’t busy blasting music through your headphones during the process.

Yes, but, no…

14 C.F.R. § 91.11 – Prohibition on interference with crewmembers.

No person may assault, threaten, intimidate, or interfere with a crewmember in the performance of the crewmember’s duties aboard an aircraft being operated.

While some kinds of defiance may qualify as interference, the duty only attaches while the aircraft is “being operated.”  Before the doors close, not so much.

It is possible he could be charged under some state law for trespassing or resisting the officers, since as discussed above, legally he was obligated to leave, and therefore the officers had the lawful right to use reasonable force to remove him.  It is also possible that he lacked the intent required to be charged, since he believed he had the right to be here — a review of the law of the relevant state would be required and is outside of the scope of things that I care about, and thus this blog.  But, these would be petty misdemeanors, rather than a federal felony, and I do believe the police are now sufficiently embarrassed as to their inability to safely move one man 20 feet without sending him to the hospital that he will face no charges.

Will he win in a lawsuit?

Against whom?  For what?

The police?

In order to win against the police, since the officers were lawfully entitled to remove him, he would need to prove that the force they used was unreasonable.  That is, there was a safer way to do it, and a reasonable police officer under these circumstances would have done so.  This is regardless of whether he sues in battery (where “reasonableness” will be a defense) or in negligence (where lack of reasonableness will be an element of the tort).

This is a question for the jury, so I’ll leave it to you guys.  Watch the video with the fact that the police did have the right to eject him in the back of your mind.  Your verdict of liable or not liable depends on whether the police did the best they could given a non-compliant passenger, or whether the means by which they ejected him was unreasonable.

The airline?

The more interesting one.  The “for what” part of the question definitely matters.

  • For breach of contract?  Well, he paid for them to take him to another city, and they didn’t do so; therefore, United certainly owes him for the flight.  However, how much they owe him turns on whether he was “denied boarding” or not.  The reason is that federal law directly covers “denied boarding,” allows an airline to do it regardless of contract law, and provides a fixed payment schedule for how much the airline will owe the passenger for having done so.  Four hundred percent of the fare, to a maximum of $1,350, to be exact.  The question is whether asking someone already on the plane to leave is “denying them boarding.”  I fear the answer will probably be that it is, as the intent of the law was to cover refused transport without any reason to think that the Federal Aviation Administration intended to distinguish between refusal issued before or after the person passes the gate agent.  But, if not, United Airlines will be liable in contract for all foreseeable damages.  This includes not just the cost of the ticket, but a missed hotel reservation in his destination, missed work in the morning, alternate transportation (to the extent that it is more expensive), etc.  It does not include the police breaking his face — it is not “foreseeable” (although not really surprising either).
  • For his physical injuries?  United won’t be liable in contract for his physical injuries, but how about in tort under battery or negligence theories?  Were the people who took the man off the plane United employees or even contractors, yes, they might be liable for the battery or any negligence.  But, reports are that these were airport police, and as United does not have any control of how the police do their job, they do not have any liability.
  • For anything else?  It’s time to get creative here.  I think this man’s best chance of tort recovery is negligent infliction of emotional distress.  NIED requires two elements that are fairly obvious: 1) negligence, and 2) emotional distress.  Let’s assume he can prove the second, as his face was broken on video that was now seen around the world, and he can probably show that he was traumatized by the event.  Was United in any way negligent?  Well, would a reasonable airline have made sure that they were not oversold before boarding passengers?  Would a reasonable airline have found another way to deal with the situation?  Was emotional distress a foreseeable possibility?  These are the tough questions that any lawyer for this man will have to prove in court.  Luckily, United will be anxious to settle with this man after watching their stock value plummet $800,000,000 on Monday, and so this case will probably never make it to the clerk’s office, let alone a judge and jury.

The tl;dr version is that United was probably, mostly, in the legal right.  But, something need not be legally wrong to be morally wrong, or to be a good reason not to do business with someone, or to make you the butt of every joke on the Internet.  United cost itself a lot of money for doing something that its customers don’t like and then pretending that it was no big deal, and this loss will be far greater than anything the man can hope to win in court.

Corbett Files Amicus Brief in “Naked Man at TSA Checkpoint” Case

John Brennan's Nude Protest at PDX TSA Checkpoint

Although it is discouraging how many people go through TSA checkpoints and submissively comply with (or even show appreciation for) security theater, there are several Americans who have made loud statements.  Interestingly, the name “John” seems to increase one’s likelihood of making a stand: John “Don’t Touch My Junk” Tyner, John “You Don’t Need My ID” Gilmore, yours truly Jon Corbett (if I do say so myself!), or in this case, a man named John Brennan.

In April 2012, Brennan found himself at Portland’s airport, opting-out of the scanner and allowing the TSA to pat him down.  But, upon the completion of the pat-down, the molester screener tested his gloves for explosive residue, resulting in a false-positive.

False positives are not exceedingly rare (in fact, every positive has been a false positive, given that the TSA has found 0 terrorists since its inception in 2002), and the TSA has a procedure for when this happens: take you to a back room, and use the front of their hands to rub your genitals.  No hyperbole here, folks: this is exactly the procedure, and the one thing I make sure all my friends and family know about TSA screening is that it is better to miss your flight than to go to the back room with a TSA screener.  Regardless of what they threaten, do not go.

But Brennan had a better idea: he simply took off all his clothes, right there in the checkpoint, and asked the TSA if it looked like he had a bomb.  Predictably, the TSA overreacted, refused to screen him, closed the checkpoint, called the police, and had him arrested.

Only problem is, nude protests in Oregon are completely legal, and a judge entered a verdict of acquittal without even letting the case get to a jury.

Dissatisfied with this, the TSA imposed a civil penalty against Brennan under a federal rule that punishes those who “interfere with, assault, threaten, or intimidate screening personnel in the performance of their screening duties.” 49 C.F.R. § 1540.109.  Brennan took the case to the U.S. Court of Appeals, where the TSA argues, with a straight face, that any “failure to obey” or causing of a “distraction” constitutes “interference” under the rule and subjects you to a fine.

Fuck that.

The U.S. Supreme Court has squarely rejected “contempt of cop” laws, whereby those who do not “obey” random orders of police officers can be fined.   Chicago v. Morales, 527 U.S. 41 (1999).  The idea that we should give TSA screeners more authority to force us to submit to their every wish than a police officer is absurd, offensive, and dangerous.  As such, I’ve filed a motion to consider an amicus curiae (“friend of the court”) brief, where I’ve outlined for the Court how the TSA has abused the power they already have, and how an expansion of that power will allow TSA screeners to arbitrarily curtail the First Amendment rights (among other rights) of anyone at the checkpoint under threat of fine. (I can only imagine how many times I’d have been fined were the TSA confident they could do so merely for being annoying!).  It also discusses the Morales case, above, which Brennan’s attorney didn’t bring to the court’s attention…

To the extent the public was injured on April 17th, 2012, it was not injured by John Brennan removing his clothes, but rather was injured by the TSA and airport police attempting to quash a constitutional right that Americans hold close to our hearts: our right to petition our government for redress. For the foregoing reasons, the Court should decline to allow the TSA to become a discount legislator, police officer, prosecutor, judge, and jury, and accordingly set aside the order levying a fine against John Brennan.

This was my first amicus brief ever, and they’re kind of fun to write because you have to be concise, but get to discuss only the issues that you personally care about.  Would definitely do again!

Brennan v. D.H.S. – Proposed Amicus Brief of Jonathan Corbett (.pdf)


“Jon Corbett is a civil rights advocate known for filing the first lawsuit against the deployment of TSA nude body scanners, as well as defeating the body scanners live in ‘How to Get ANYTHING Through TSA Nude Body Scanners.’  Presently a law student, he continues to advocate for travel and privacy rights.  Twitter: @_JonCorbett, Web:https://professional-troublemaker.com/

Fighting for civil rights in court is expensive!  Want to contribute to the fight against government assholery? Donate via PayPal, Venmo, Chace QuickPay, Bitcoin, or check

Is An Event Producer Liable for Event Security?

bouncerIt seems to be quite common for large nightclubs and events to hire third-party security companies in an attempt to reduce their liability in the event that things go wrong and security injures a patron.  New York nightclub Flash Factory, who I sued with a co-plaintiff last month for battery stemming from a “security search” that apparently involves gratuitous touching the breasts and genitals of their patrons, denies in their answer that they are liable for the torts (civil wrongs) of their contractors.

Will Flash Factory’s argument get them off the hook?

Not a chance.

Let’s look at 3 kinds of liability that could be alleged against one who throws parties secured by abusive security, using general principles of agency law common among the 50 states.  Agency law, by the way, determines when one party (the “principal”) is liable for the acts of another acting on his or her behalf (the “agent”).

Direct Liability

Direct liability is imposed on the person who actually commits a tort.  Obviously the bouncer herself whose hands were actually on my body is directly liable, so the nightclub is therefore not directly liable, right?  Well…

“A principal is subject to liability to a third party harmed by an agent’s conduct when the agent’s conduct is within the scope of the agent’s actual authority or ratified by the principal; and (1) the agent’s conduct is tortious, or (2) the agent’s conduct, if that of the principal, would subject the principal to tort liability.”  Restatement (Third) of Agency, § 7.04.  (The “Restatements” are documents put out by the American Law Institute that reflect the general policies found in the United States regarding specific areas of law.)

The problem for Flash Factory and other event producers comes when they direct security to perform a specific kind of search (give them “actual authority”), or knowingly allow it to continue (“ratification”).  Given that complaints about Flash Factory’s search methods have persisted for at least a year — and even after they had notice of my lawsuit — Flash Factory will have an uphill battle to show that that they didn’t direct their security to behave in this way, or at least ratify it.

Vicarious Liability

“An employer is subject to vicarious liability for a tort committed by its employee acting within the scope of employment.”  Restatement (Third) of Agency, § 7.07(1).  Further, an employer is not generally liable for the intentional torts of his employees, because the scope of their employment generally does not include intentionally harming others.  Since independent contractors are not “employees,” and since battery is an intentional tort, I guess Flash Factory’s off the hook on this one, right?

Nope.  While, in general, an employer is not liable for the torts — especially intentional torts — of his or her independent contractors, it is often stated that this rule is merely the “preamble to a list of exceptions.”

Before we get to the true exceptions, we should note that under agency law, “employee” doesn’t mean the exact same thing it means to the IRS.  Rather, “an employee is an agent whose principal controls or has the right to control the manner and means of the agent’s performance of work.”  Restatement (Third) of Agency, § 7.07(3)(a).  Can Flash Factory seriously argue that they had no right to direct the bouncers of their nightclub as to how they want a security search to be conducted?  Good luck convincing a judge and jury of that.  But, it should be noted that for an event producer who does not control the venue — that is, one who throws parties at a premises owned and secured by someone else — they would likely not have vicarious liability under this rule, because a nightclub does not generally concede control of security to the third-party producer or promoter (but, read on).

Now, the classic exceptions to non-liability for torts of independent contractors that any law student will be familiar with: (1) the conduct was authorized by the principal, (2) the conduct was a natural incident to carrying out the employer’s directions, or (3) the conduct was motivated by a desire to serve the principal.

We discussed the first above under direct liability. Regarding the second and third, which very much go hand-in-hand, the quintessential example in law school textbooks is the bouncer.  One who is employed for a job under which their duties include physical and hostile contact with others naturally may cause injury to the others, and that physical and hostile contact is in service to the employer.  Think of it this way: if a bartender sees an unruly customer and uses excessive force to eject that customer, we would not be able to apply this exception because battery is not naturally incident to serving drinks.  But a bouncer’s job is literally to do the same, and if he or she does so with excessive force, it will be considered incident to the service of the employer.  Again, the third-party producer or promoter will likely escape liability (it’s less a service to the third-party than to the venue owner), but a venue owner such as Flash Factory will find themselves on the receiving end of a judgment, regardless of whether the offending bouncer was an employee or a contractor.

Negligence

The third way the party thrower may find themselves liable for the acts of their bouncer is in negligence.  Under negligence law, the employer is not liable for the battery, either directly or vicariously, but is liable because they had a duty to provide a safe environment and failed to do so.

A simply-put formula for negligence is: (1) the existence of a duty, (2) which was breached, (3) which caused, (4) injury to the plaintiff.  Duty, breach, causation, injury/damages.  “Injury” doesn’t necessarily mean physical injury, but rather injury to any legal right (including the right to be free from non-consensual contact).

A full examination of the duties of a club owner would be lengthy, but they include maintaining a reasonably safe premises and using reasonable hiring practices.  If the nightclub was unsafe or a person was injured by someone hired by the club that should not have been (or, e.g., because the club failed to hire enough security), this duty was breached.  And, as long as the injury was traceable to the breach (i.e., wouldn’t have happened anyway), we have causation.

It will be interesting to see Flash Factory’s argument as to which of these elements is missing to avoid liability in negligence.  I certainly wouldn’t want to be the lawyer arguing it, but I suspect they will try to attack breach.  That is, they will say that any injury that happened to me happened despite the fact that they acted reasonably.  Will they be able to show evidence of specific things they have done that were sufficient to reasonably ensure that the harm that happened would not happen?  I think it is unlikely.

They may also try to attack breach by saying that their search was reasonable because they need to stop drugs from entering the venue.  This ignores the fact that they have a duty to both avoid battering their customers and not be a drug den.  This will be problematic for Flash Factory given that drug use is obviously rampant within the venue despite their door search.  You can’t claim that it’s “reasonable” to inspect my crotch when you allow people to wander around inside that are clearly obliterated, and even if a groin search of every customer were somehow “necessary,” failing to obtain the consent of those entering, and instead just grabbing at their breasts and genitals without warning, is negligent.

But what of the third-party event producer?  Well, they didn’t hire security, nor do they have control over the safety of the premises, so they are unlikely to be subjected to negligence liability for the same duties as the venue owner.  But, they do have a choice over where to host their events, and if they do so at a venue that is well-known for injuring its customers, they may face liability for negligently selecting the venue. So, for example, if you host an event at Flash Factory now, knowing that they regularly molest their customers in the security line, you may be running a risk of being liable for their wandering hands.

The Bottom Line

The key to determining liability is right to control.  If you have the ability to mitigate a harm that may arise in the course of running your business, but fail to do so, you’re probably liable.  Likewise, if you pay a contractor to do a task and they screw it up on their own, without your knowledge or reason to have knowledge, you’re probably not liable.  But hiring an outside company to do your dirty work for you is not an automatic free pass.

This means if you’re a venue owner, choose your security wisely and monitor them carefully.  It’s not only good for avoiding liability, but also customer frustration.  Why not choose a security team that deescalates situations, treats customers with respect, and makes your venue a place that is both comfortable and safe?

If you’re a third-party event producer — a role I’ve indeed played — having the right venue is key, and it’s important to remember that everything is negotiable, including security.  There’s no reason not to discuss the details of how your customers will be interacted with when they first arrive at the venue.  And if a venue is well-known for assholery at the door, find a new venue.  Regardless of whether you’re taking a legal risk, you don’t want to be associated with that.

So What’s This “New” TSA Pat-Down?

About a couple weeks ago, the TSA announced that it would be “enhancing” its pat-down by, basically, “touching your junk” a bit more.  There was apparently enough concern about its intensity that the TSA warned police in advance that it might generate sex assault complaints.

You may have noticed this blog was conspicuously quiet on the matter, and that’s because of both conflicting reports as to the scope of the updated groping and because of some inside knowledge on what the TSA is up to.  But, having gone through the TSA’s pat-down today and LGA, here’s the deal:

First, if you’re getting a pat-down because you alarmed the body scanner, it’s going to be a full-body pat-down despite the fact that the scanners were specifically designed to point out the specific area of the body upon which an item was detected.  From what I could see at the checkpoint, this is a much briefer version of the opt-out pat-down, but still touched every area of the body.

Second, if you’re getting a pat-down for a reason other than alarming the body scanner (e.g., you opted out), the only difference I noticed was that the “groin search” used to involve several vertical back-of-the-hand swipes from your bellybutton to your crotch, it now is 3 horizontal swipes (from hip to hip) followed by 3 vertical swipes.  It’s slightly more invasive, but given that the TSA was all up in your crotch before, it’s not that big of a change.

In conclusion, the only place you’re likely to notice a change is if you alarm the body scanner.  Given that about half of people were getting patted down by this supposedly brilliant technology while I was watching today (and, of course, the pat-downs finding nothing), that may be significant if you weren’t already opting out.

Given that chances are you may get a pat-down anyway, may as well opt-out, eh?

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