Legal briefs

Vulgarity not enough
to uphold conviction

How obnoxious can someone be in public without committing disorderly conduct? Extremely obnoxious, according to a decision from the state’s Appeals Court.

In Commonwealth v. Mallahan, the court found that a man should not have been convicted of disorderly conduct for his “rantings” while police were arresting him. The outburst included “warnings that he would sue the officers, as well as loud protestations interlaced with profanities that he had done nothing wrong.”

The defendant, who was being arrested for assault and battery stemming from a domestic dispute, screamed to the officers and a crowd of onlookers that he never “f-ing touched that bitch.”

The Appeals Court found that the defendant’s speech may have been “vulgar and unpleasant,” but, without any specific threats or “fighting words,” it was not enough to let his conviction stand.

 

Cape men in bid
for DNA samples

Cape Cod men who voluntarily gave DNA samples during the investigation into the murder of fashion writer Christa Worthington are suing to have the samples returned.

A class action lawsuit filed by the American Civil Liberties Union of Massachusetts in Suffolk Superior Court accuses Cape and Islands District Attorney Michael D. O’Keefe with failing to make good on a promise to return or destroy the samples.

O’Keefe, however, said that all the DNA samples provided voluntarily were either returned or destroyed by March 15, 2007.

The samples were taken to exclude the men from the investigation. A trash collector, Christopher McCowen, was later convicted in the fatal stabbing in 2002.

The lawsuit alleges that O’Keefe refused to confirm that the samples were destroyed, and the director of the State Police crime lab said the samples would not be destroyed without a request from O’Keefe.

 

Gay veterans fail
in suit vs. military

The 1st U.S. Circuit Court of Appeals has upheld a lower court’s dismissal of a lawsuit filed by 12 gay and lesbian veterans who had challenged the military’s “don’t ask, don’t tell” policy.

The plaintiffs had all been discharged under the policy, instituted by Congress.

Judge Jeffrey R. Howard said in the decision that, while some people may question the wisdom of the policy, the court had to defer to congressional decision-making.

The policy prohibits the military from asking about the sexual orientation of service members but requires discharge of those who acknowledge being gay or engaging in homosexual activity.

The plaintiffs argued in their lawsuit that the policy violates their constitutional rights to privacy, free speech and equal protection.

 

Court decision just
ducky with tour firm

Boston Duck Tours got a huge publicity boost recently when the World Champion Boston Celtics boarded its boats for the team’s 2008 victory parade.

But the company lost out on its legal bid to force a competitor, Super Duck Tours, to use a different name and logo.

The 1st U.S. Circuit Court of Appeals found that the phrase “duck tour” and the image of a duck splashing in water cannot be trademarked because they are generic and unlikely to confuse consumers.

“Because of the lack of adequate alternatives, ‘duck tours’- the most common and accepted term to describe the services at issue - may not be appropriated for one party’s exclusive use,” the court concluded.

Super Duck Tours attorney Joshua M. Dalton of Boston said that the 74-page decision exhaustively “summarizes the point of why generic names shouldn’t become trademarks. It would harm competitors and consumers alike.”

Added Dalton: “This is a beautiful city with plenty to see. … There’s plenty of room for both duck tours, and we want consumers to know what they’re getting. Otherwise, consumers might not know they have a second choice.”

Dalton says there is no word on when his client, which had been forced to call itself Super Duck Excursions and adopt a sea captain logo, will switch back to the duck cartoon logo.

 

Ticket ‘scalping’
ruling reversed

Those calling for the end of ticket scalping suffered a major setback when the Appellate Division of the District Court reversed a controversial 2007 judgment entered in favor of noted consumer rights advocate Colman Herman.

In 2007, Herman successfully sued Admit One Ticket Agency after the Weymouth-based company quoted him prices to Boston Red Sox games that he claimed violated the state’s antiquated ticket-reselling laws.

In May 2005, Herman requested price quotes from Admit One for seats to a series of upcoming Red Sox games against the New York Yankees and Baltimore Orioles. While the face value for the sought-after seats was in the $85 range, Herman was told by store employees that he could have the Yankees tickets for $500 and the Orioles’ for $165.

A short time later, he dropped a demand letter on Admit One claiming that “the prices quoted to me were exorbitant.”

When District Court Judge Mark S. Coven declined the agency’s request to dismiss the case, opponents of ticket-reselling speculated that the ruling could spell the beginning of the end for similar businesses in Massachusetts.

That speculation gained gravitas when Coven ruled in Herman’s favor at the end of a jury-waived trial in 2007.

But those hopes were dashed when Admit One convinced the Appellate Division to dump the case on the grounds that Herman lacked standing to file suit, as the ticket agency had claimed all along.

Judge H. Gregory Williams said that the court’s ruling was consistent with a decision made by the Department of Public Safety in an unrelated, but similar, complaint Herman had brought against Higs Cityside Tickets.

Herman filed a complaint in that case after he was quoted $825 for coveted “green-monster” seats to an October 2006 Orioles game.

 

Material from Associated Press was used to compile Legal Briefs.