I headed down, with a teammate to Portsmouth for this 3rd cat race. My first time here, and first time with any kind of banking. Odd to just fly into a corner and let gravity take you around. There was a quite promising early break of 4 but that got reeled in, then a solo break got nowhere, then another break of around 5 went. As soon as they came back the pace slowed and I went for my jaunt off the front. I thought maybe it was cunning to go up the bank and slingshot down again; this apparently caused merriment in the bunch and delayed the organisation of a chase until I had been out there for a few laps. Then it was altogether for the last several laps and the bunch sprint with me on my teammate's wheel at the rear.
22.74 miles in 53:39. Average 25.4mph max 31mph
Saw ex-teammate Harry down there in the Elites' race and left him in a 3 man break which had a comfortable half lap over the field. He always makes it look so easy.
Changing Course: Enhancing Homeland Security's Policy of Seizure and Repatriation with Investigation and Prosecution
Illegal antiquities trafficking is a global business, linked to major transnational crimes such as money laundering. Additionally, cultural property crimes target humanity’s heritage and spirit. In order to successfully tackle crimes against cultural heritage, federal officials must pursue a strategy of investigation and prosecution.
The current policy of seizure and return does not go far enough. To seize a stolen or smuggled artifact at the American border and return it to its country of origin only serves to repatriate the object. Its confiscation and return does little to deter antiquities trafficking since there is minimal consequence to the perpetrators or accomplices. Building legal cases that lead to arrests and prosecutions would provide both specific deterrence and general deterrence.
The seize and return policy maintained by Department of Homeland Security (DHS) recently came into public view when Customs and Border Protection (CPB) and DHS investigators seized two Chinese artifacts illegally crossing America's border at Newark Liberty International Airport around March 3. Eight days later DHS announced the return of fourteen cultural objects to China, many obtained as a result of an enforcement initiative titled Operation Great Wall. The objects repatriated apparently included one of the artifacts seized at Newark Airport, specifically a Tang Dynasty horse. At least four other Chinese cultural objects that were seized in the New York metropolitan area over the past year were returned to China as well.
Typically when law enforcement officials seize the fruits of a crime or contraband they secure the evidence in anticipation of a prosecution. The return of the Tang Dynasty horse sculpture only a few days after federal officials seized it illustrates how smuggled cultural objects are not treated as criminal case evidence. That is to be expected when the primary mission of DHS is to seize and return, not to investigate and prosecute.
US Customs Director Robert Perez articulated this seize and return policy, declaring that federal authorities are "dedicated to intercepting [cultural] items and ensuring their safe return to their rightful owners." DHS’s news release about the repatriation of Chinese artifacts supports this view, highlighting that “2,300 artifacts have been returned to 18 countries since 2007.” While DHS touts the number of seizures and returns of cultural property, its press statement does not boast of any prosecutions or convictions against looters, smugglers, fences, or receivers of illegally stolen or trafficked cultural heritage.
Combating crimes against cultural heritage requires authorities to investigate and prosecute trafficking rings. Effective law enforcement is characterized by thoughtful investigation, careful handling of physical evidence, and assembly of evidence for review and use by prosecutors. While seizing and repatriating illegally smuggled artifacts serves some purpose to curb antiquities trafficking, federal officials cannot be credited with performing a thorough job if this remains the sole accomplishment.
Immigrations and Customs Enforcement investigators and Customs and Border Protection agents are skilled law enforcement officers who are capable of combating antiquities trafficking effectively. We need to call on DHS policymakers to directly engage illegal antiquities networks by adopting a policy of investigation and prosecution that enhances the existing policy of seizure and repatriation.
Sources:
www.ice.gov/news/releases/1103/110311washingtondc.htm
http://articles.cnn.com/2011-03-03/justice/new.jersey.artifacts.seized_1_newark-airport-antiquities-chinese-government?_s=PM:CRIME
The current policy of seizure and return does not go far enough. To seize a stolen or smuggled artifact at the American border and return it to its country of origin only serves to repatriate the object. Its confiscation and return does little to deter antiquities trafficking since there is minimal consequence to the perpetrators or accomplices. Building legal cases that lead to arrests and prosecutions would provide both specific deterrence and general deterrence.
The seize and return policy maintained by Department of Homeland Security (DHS) recently came into public view when Customs and Border Protection (CPB) and DHS investigators seized two Chinese artifacts illegally crossing America's border at Newark Liberty International Airport around March 3. Eight days later DHS announced the return of fourteen cultural objects to China, many obtained as a result of an enforcement initiative titled Operation Great Wall. The objects repatriated apparently included one of the artifacts seized at Newark Airport, specifically a Tang Dynasty horse. At least four other Chinese cultural objects that were seized in the New York metropolitan area over the past year were returned to China as well.
Typically when law enforcement officials seize the fruits of a crime or contraband they secure the evidence in anticipation of a prosecution. The return of the Tang Dynasty horse sculpture only a few days after federal officials seized it illustrates how smuggled cultural objects are not treated as criminal case evidence. That is to be expected when the primary mission of DHS is to seize and return, not to investigate and prosecute.
US Customs Director Robert Perez articulated this seize and return policy, declaring that federal authorities are "dedicated to intercepting [cultural] items and ensuring their safe return to their rightful owners." DHS’s news release about the repatriation of Chinese artifacts supports this view, highlighting that “2,300 artifacts have been returned to 18 countries since 2007.” While DHS touts the number of seizures and returns of cultural property, its press statement does not boast of any prosecutions or convictions against looters, smugglers, fences, or receivers of illegally stolen or trafficked cultural heritage.
Combating crimes against cultural heritage requires authorities to investigate and prosecute trafficking rings. Effective law enforcement is characterized by thoughtful investigation, careful handling of physical evidence, and assembly of evidence for review and use by prosecutors. While seizing and repatriating illegally smuggled artifacts serves some purpose to curb antiquities trafficking, federal officials cannot be credited with performing a thorough job if this remains the sole accomplishment.
Immigrations and Customs Enforcement investigators and Customs and Border Protection agents are skilled law enforcement officers who are capable of combating antiquities trafficking effectively. We need to call on DHS policymakers to directly engage illegal antiquities networks by adopting a policy of investigation and prosecution that enhances the existing policy of seizure and repatriation.
Sources:
www.ice.gov/news/releases/1103/110311washingtondc.htm
http://articles.cnn.com/2011-03-03/justice/new.jersey.artifacts.seized_1_newark-airport-antiquities-chinese-government?_s=PM:CRIME
Surrey League Road Race Dunsfold Sunday 6th March 2011
My first road race (by which I mean a mass start race on the Highway) for the current season. A well organised Surrey League event sponsored by Kingston Wheelers, who supplied, with the NEG, excellent traffic marshalling (and cakes back at HQ!). A definite chill in the air as we 3rd cats gathered outside the Alford Crossways Village Hall for the start of the neutralised section down to the start proper. The pace during the neutralised bit was quite enough to get me warmed up and after a few miles we stopped just south of Dunsfold for a few minutes before the race got going. Soon there was a right into Chiddingford Road and we were onto the 6 mile circuit we would follow 8 times around. Chiddingford Road had a moderate hill, on some laps this was taken at a moderate pace but sometimes there were attacks here which left me hanging off the back gasping and willing myself not to be dropped irremedially. Then the road curved round left through a wooded section where the potholes began and we undulated more up than down to the T junction taking us back up towards Dunsfold, after which the road surface improved and we enjoyed a sweeping descent before turning left to face that hill again.
It was a race of breaks and attacks from the first lap to the last with the pace going up as they fought to get away and again as gaps were closed.
I hung on in there and finished (up another hill that had me completely spent) at the back of the main bunch which by the time we finished was around 40 strong from the 80 who started. I enjoyed the race and was pleased with that result (last year I did around half a dozen road races and did not manage to remain with the bunch until the end in any of them).
52.25 miles in 02h13m22s for an average speed of 23.5 mph. Max 37.5 mph.
Traffic was generally not a problem with oncoming vehicles in the main having the good sense to stop or at least slow and move over. There was only one vehicle that careered on at unmodified speed inches from the centre line. Why the police anywhere should think that every road race requires a road closure (as apparently some police forces do believe) puzzles me, certainly when the race is as well escorted and marshalled as this one was. All that is required is for traffic to stop or slow for the few seconds that it takes for the race to pass. It will undoubtedly be helpful if marshals and motorcycle escorts are given an express power to direct traffic in dealing with the very few individual road users who seem to have a problem with cyclists racing on the road.
It was a race of breaks and attacks from the first lap to the last with the pace going up as they fought to get away and again as gaps were closed.
I hung on in there and finished (up another hill that had me completely spent) at the back of the main bunch which by the time we finished was around 40 strong from the 80 who started. I enjoyed the race and was pleased with that result (last year I did around half a dozen road races and did not manage to remain with the bunch until the end in any of them).
52.25 miles in 02h13m22s for an average speed of 23.5 mph. Max 37.5 mph.
Traffic was generally not a problem with oncoming vehicles in the main having the good sense to stop or at least slow and move over. There was only one vehicle that careered on at unmodified speed inches from the centre line. Why the police anywhere should think that every road race requires a road closure (as apparently some police forces do believe) puzzles me, certainly when the race is as well escorted and marshalled as this one was. All that is required is for traffic to stop or slow for the few seconds that it takes for the race to pass. It will undoubtedly be helpful if marshals and motorcycle escorts are given an express power to direct traffic in dealing with the very few individual road users who seem to have a problem with cyclists racing on the road.
Legal Update - Spring 2011
First, it's cycle helmets again. Last week His Honour Judge Wilcox sitting as a Deputy Judge of the High Court delivered his Judgment in Phethean-Hubble v Coles. On 28th November 2005, Tobias Phethean-Hubble, then aged 16, suffered severe brain injuries when he was cycling and came into collision with a Rover motor car driven by the then 17 year old Sam Coles.
Tobias's cycling was not above criticism; immediately prior to the collision he was cycling at 8pm unlit along the pavement and moved onto the carriageway of the road into the path of the Rover. The street was, however, well lit and Sam had no difficulty seeing Tobias. The failure to carry lights at night therefore only affected the outcome to the extent that it may explain why Tobias had been riding on the pavement, where the Judge observed that 'strictly' he should not have been.
The area was subject to a 30 mph speed limit. At trial there was an issue over speed with Sam accepting a speed slightly in excess of the speed limit and those representing Tobias alleging a rather greater speed. In the event the Judge found that the speed was 35 mph and found Sam to be liable for Tobais's injuries because of his excessive speed.
The Judgment is promising in that it accepts the dangers of speeding and emphasises the vulnerability of the cyclist. There was a finding that a reasonable motorist ought to have anticipated that the cyclist riding on the pavement would move into the road and a prudent motorist should have been prepared for such an eventuality and driven accordingly.
Driving 'accordingly' essentially meant moderating his speed. At 35mph there was no chance of avoiding the collision, he should not merely have been driving within the speed limit but should have slowed to 3-4 mph or so below the limit. At that speed there was a greater likelihood that the cyclist would have become aware of the approaching car in time, and the motorist would have had longer to react so as to avoid the collision, or at least cause less serious injury. Emphasis was placed on the significant difference between the two road users. One a cyclist with little protection, the other a motorist in a stable enclosed vehicle that has fatal potential.
The Judge also found fault on the part of the cyclist in riding onto the road creating the emergency. He found this was an equal cause of the accident but given Tobias's age he considered a reduction of one third for contributory negligence was just and equitable.
There was in addition criticism of Tobias for not wearing his cycle helmet. The Judge accepeted as his starting point the words of Griffith Williams J in Smith v Finch who had likened fault on the part of a cyclist not wearing a helmet to fault on the part of a motorist for not wearing a seat-belt. On the face of it this is another blow for those who wish helmet wearing to be a matter of personal choice rather than external prescription. However the authority of the decision on this point is weakened by the fact that the contrary High Court authority A v Shorrock was not cited to the Judge and, rather extraordinarily, it appears that it was not even argued on Tobias's behalf that he was not at fault in leaving his helmet at home. As it was, the Judge made passing reference to risk compensation and to the fact that helmets may sometimes make injuries worse; suggesting a distinct possibiltiy that he may not have followed Smith v Finch had the matter been argued out.
As always (at least thus far) in cases of severe impacts, the finding was then made that the wearing of a helmet would not have made a significant difference to the extent of Tobias's injuries.
Comment. Although Claimant cyclists can usually be fairly confident that a Defendant motorist will be unable to establish that a helmet would have made any difference, this is not a good reason to permit assertions that a bare-headed cyclist is at fault to go uncontested. It is inimicable to the interests of cyclists generally to allow a series of cases to build up on a premise that not wearing a helmet equates to fault. I hope that this is the last time that such an assertion will be allowed to go unchallenged.
Aside from the helmet issue though there is much in the Judgment about the standard of care owed to cyclists by motorists and about the dangers of even 'moderate' speeding to merit a cheer. I believe it to be a useful antidote to the mantra that I hear often (even sometimes from cyclists) that cyclists are just as much to blame, just as responsible etc. As I have made clear before, I personally reject this artificial 'evenhandedness' which is blind to the degree of potential to do harm to others.
[UPDATE: The Defendant's appeal against this Judgment was heard yesterday (28.11.11) and Judgment is awaited. The Defendant did not appeal the finding that a cycle helmet would have made no difference but there may well be some observations form the Court of Appeal on the degree of contributory negligence].
Death on the roads is sadly continuing at much the same rate this year, notably the 18 year old potential Olympian, Lewis Balyckyi, was run down by a Transit van and killed whilst out training in Lancashire in January.
In the criminal courts, the motorist responsible for the death of Cath Ward of Solihull CC was sentenced last December to a community order and disqualified from driving for one year. Cath had been competing in a 10 mile time trial last summer in good weather conditions on the A46 dual carriageway when she was hit from behind by a car driven by Arron Cook. Prosecutors decided to charge Cook with causing death by careless driving rather than by dangerous driving. (It is possible this case differs significantly from that of Major Gareth Rhys-Evans, see my legal review a year ago, but I do not see it as obvious from any of the reports). The result of this charging decision was that the Magistrates were empowered to, and rather unusually did, deal with the sentence themselves rather than referring to a higher Court. I continue to wish for greater consistency in charging and sentencing decisions in cases that involve killing, harming or endangering vulnerable road users.
Tobias's cycling was not above criticism; immediately prior to the collision he was cycling at 8pm unlit along the pavement and moved onto the carriageway of the road into the path of the Rover. The street was, however, well lit and Sam had no difficulty seeing Tobias. The failure to carry lights at night therefore only affected the outcome to the extent that it may explain why Tobias had been riding on the pavement, where the Judge observed that 'strictly' he should not have been.
The area was subject to a 30 mph speed limit. At trial there was an issue over speed with Sam accepting a speed slightly in excess of the speed limit and those representing Tobias alleging a rather greater speed. In the event the Judge found that the speed was 35 mph and found Sam to be liable for Tobais's injuries because of his excessive speed.
The Judgment is promising in that it accepts the dangers of speeding and emphasises the vulnerability of the cyclist. There was a finding that a reasonable motorist ought to have anticipated that the cyclist riding on the pavement would move into the road and a prudent motorist should have been prepared for such an eventuality and driven accordingly.
Driving 'accordingly' essentially meant moderating his speed. At 35mph there was no chance of avoiding the collision, he should not merely have been driving within the speed limit but should have slowed to 3-4 mph or so below the limit. At that speed there was a greater likelihood that the cyclist would have become aware of the approaching car in time, and the motorist would have had longer to react so as to avoid the collision, or at least cause less serious injury. Emphasis was placed on the significant difference between the two road users. One a cyclist with little protection, the other a motorist in a stable enclosed vehicle that has fatal potential.
The Judge also found fault on the part of the cyclist in riding onto the road creating the emergency. He found this was an equal cause of the accident but given Tobias's age he considered a reduction of one third for contributory negligence was just and equitable.
There was in addition criticism of Tobias for not wearing his cycle helmet. The Judge accepeted as his starting point the words of Griffith Williams J in Smith v Finch who had likened fault on the part of a cyclist not wearing a helmet to fault on the part of a motorist for not wearing a seat-belt. On the face of it this is another blow for those who wish helmet wearing to be a matter of personal choice rather than external prescription. However the authority of the decision on this point is weakened by the fact that the contrary High Court authority A v Shorrock was not cited to the Judge and, rather extraordinarily, it appears that it was not even argued on Tobias's behalf that he was not at fault in leaving his helmet at home. As it was, the Judge made passing reference to risk compensation and to the fact that helmets may sometimes make injuries worse; suggesting a distinct possibiltiy that he may not have followed Smith v Finch had the matter been argued out.
As always (at least thus far) in cases of severe impacts, the finding was then made that the wearing of a helmet would not have made a significant difference to the extent of Tobias's injuries.
Comment. Although Claimant cyclists can usually be fairly confident that a Defendant motorist will be unable to establish that a helmet would have made any difference, this is not a good reason to permit assertions that a bare-headed cyclist is at fault to go uncontested. It is inimicable to the interests of cyclists generally to allow a series of cases to build up on a premise that not wearing a helmet equates to fault. I hope that this is the last time that such an assertion will be allowed to go unchallenged.
Aside from the helmet issue though there is much in the Judgment about the standard of care owed to cyclists by motorists and about the dangers of even 'moderate' speeding to merit a cheer. I believe it to be a useful antidote to the mantra that I hear often (even sometimes from cyclists) that cyclists are just as much to blame, just as responsible etc. As I have made clear before, I personally reject this artificial 'evenhandedness' which is blind to the degree of potential to do harm to others.
[UPDATE: The Defendant's appeal against this Judgment was heard yesterday (28.11.11) and Judgment is awaited. The Defendant did not appeal the finding that a cycle helmet would have made no difference but there may well be some observations form the Court of Appeal on the degree of contributory negligence].
Death on the roads is sadly continuing at much the same rate this year, notably the 18 year old potential Olympian, Lewis Balyckyi, was run down by a Transit van and killed whilst out training in Lancashire in January.
In the criminal courts, the motorist responsible for the death of Cath Ward of Solihull CC was sentenced last December to a community order and disqualified from driving for one year. Cath had been competing in a 10 mile time trial last summer in good weather conditions on the A46 dual carriageway when she was hit from behind by a car driven by Arron Cook. Prosecutors decided to charge Cook with causing death by careless driving rather than by dangerous driving. (It is possible this case differs significantly from that of Major Gareth Rhys-Evans, see my legal review a year ago, but I do not see it as obvious from any of the reports). The result of this charging decision was that the Magistrates were empowered to, and rather unusually did, deal with the sentence themselves rather than referring to a higher Court. I continue to wish for greater consistency in charging and sentencing decisions in cases that involve killing, harming or endangering vulnerable road users.
With a Friend Like Justice Scalia ... Cat's Paw Decision Not Very Employer Friendly
Although viewed as one of THE most conservative justices, I am not sure anyone who is very knowledgeable about employment law relishes the idea of Judge Scalia writing the majority opinion in an employment law case. If they did before this term, their view would be strongly challenged by today's decision in Staub v. Proctor (S.Ct. 3.1.11) [pdf] and coupled with his earlier opinion in Thompson v. North American Stainless, should readily disabuse them of that notion.
Nothing is rarely as bad as it appears on first blush, and perhaps a closer reading will lessen my angst over today's opinion. But at least I am not the only one feeling the same way. Jon Hyman at Ohio Employer's Law Blog, calls it a "huge victory" for employees.
One immediate concern is that the Court takes what is a relatively narrow range of cases, where a decision maker is deemed to have been "used" by another to carry out his or her discriminatory intent, and by focusing on the underlying disciplinary actions and the motives of those who carried them out, seems to invite numerous fights over each and every warning or other disciplinary activity that were given to an employee in the past and that might could arguably have been a factor in the termination decision. It is almost certain that there will be many more "Staub cat's paw cases" after today's decision than we have dealt with before.
Proponents will argue that this is not so, that it is only those that rise to the high level of proximate cause that are at issue. But those who do, probably do not deal with day to day employment litigation where every opportunity to raise a fact issue is yet another arrow in the plaintiff's quiver. Today, I am afraid, at least until courts below fill in the gaps, the Court has created more complexity and less certainty.
And in a time when there is confusion enough over what is the standard for determining the basic question "what is discrimination," the addition of the negligence tort doctrine of proximate cause into the mix seems to me less than a beneficial step.
Although as Paul Secunda of Workplace Prof Blog points out in his approving comment on the decision, there is an argument that it does not apply to ADEA cases, it appears likely that the Court intended it for Title VII and other statutes that use similar language:
Goodness knows we will all need some.
This is another case where not only bad facts, but a bad procedural background made it an unfavorable case for employers. The Court was faced with a case where the appellate court had reversed a jury verdict, which meant that all facts had to be construed in the most favorable of light to the employee. Also the fact that it was a USERRA case, here a military reservist, is not the best context in today's world with two wars and numerous military personnel being asked for extraordinary measures, for any case focusing on the whether or not an employee was treated badly.
Although I have long felt this, I think today's decision makes it more clear that the Supreme Court although still adhering to the broad notion that courts should not function as super-human resources departments, second-guessing the decisions of an employer, have and continue to create a set of rules that at least encourages, if not requires, the lower courts to be just that.
Nothing is rarely as bad as it appears on first blush, and perhaps a closer reading will lessen my angst over today's opinion. But at least I am not the only one feeling the same way. Jon Hyman at Ohio Employer's Law Blog, calls it a "huge victory" for employees.
One immediate concern is that the Court takes what is a relatively narrow range of cases, where a decision maker is deemed to have been "used" by another to carry out his or her discriminatory intent, and by focusing on the underlying disciplinary actions and the motives of those who carried them out, seems to invite numerous fights over each and every warning or other disciplinary activity that were given to an employee in the past and that might could arguably have been a factor in the termination decision. It is almost certain that there will be many more "Staub cat's paw cases" after today's decision than we have dealt with before.
Proponents will argue that this is not so, that it is only those that rise to the high level of proximate cause that are at issue. But those who do, probably do not deal with day to day employment litigation where every opportunity to raise a fact issue is yet another arrow in the plaintiff's quiver. Today, I am afraid, at least until courts below fill in the gaps, the Court has created more complexity and less certainty.
And in a time when there is confusion enough over what is the standard for determining the basic question "what is discrimination," the addition of the negligence tort doctrine of proximate cause into the mix seems to me less than a beneficial step.
Although as Paul Secunda of Workplace Prof Blog points out in his approving comment on the decision, there is an argument that it does not apply to ADEA cases, it appears likely that the Court intended it for Title VII and other statutes that use similar language:
If there is any good news, it is that the Court remanded the case to the 7th Circuit for application of its newly articulated rule in determining whether the jury verdict for Staub should be re-instated or a new trial granted. The basis is that the trial court's instruction did not conform to the "rule we adopt today". Perhaps that learned bench can shed some early guidance.The statute is very similar to Title VII, which prohibitsemployment discrimination "because of . . . race, color,religion, sex, or national origin" and states that suchdiscrimination is established when one of those factors "was a motivating factor for any employment practice,even though other factors also motivated the practice."
Goodness knows we will all need some.
This is another case where not only bad facts, but a bad procedural background made it an unfavorable case for employers. The Court was faced with a case where the appellate court had reversed a jury verdict, which meant that all facts had to be construed in the most favorable of light to the employee. Also the fact that it was a USERRA case, here a military reservist, is not the best context in today's world with two wars and numerous military personnel being asked for extraordinary measures, for any case focusing on the whether or not an employee was treated badly.
Although I have long felt this, I think today's decision makes it more clear that the Supreme Court although still adhering to the broad notion that courts should not function as super-human resources departments, second-guessing the decisions of an employer, have and continue to create a set of rules that at least encourages, if not requires, the lower courts to be just that.
SLAM's Federal Court Action: Summary and Comment on the Saga of the Mummy Mask
The St. Louis Art Museum (SLAM) on February 15, 2011 filed a lawsuit against the United States seeking a declaratory judgment in the case of the Ka-Nefer-Nefer mummy mask. It is helpful to explain both what this lawsuit is about and what missing information and discrepancies are starting to appear at this early stage of the court process.
Summary of SLAM’s Complaint and Legal Arguments
A declaratory judgment is a binding ruling by a court that decides a party’s rights in a dispute. It is a preventive action taken when a party believes that it will face impending legal action. In this case, SLAM filed a complaint in federal district court to prevent authorities from seizing the mummy mask in its possession. SLAM’s complaint suggests that federal authorities were preparing to seize the controversial mummy mask of Ka-Nefer-Nefer, excavated in 1952 in Egypt and purchased by the museum in 1998 from Phoenix Ancient Art, Geneva. The complaint alleges that “counsel for the Museum was contacted by the United States Attorney's Office for the Eastern District of Missouri in St. Louis, to request a meeting regarding the Mask. On January 13, 2011, the U.S. Attorney's Office in St. Louis hosted a meeting regarding the Mask. In attendance were Assistant U.S. Attorneys from the St. Louis U.S. Attorney's Office and, telephonically, the Southern District of New York, and agents from DHS in St. Louis and, also telephonically, a DHS agent stationed in Cairo, Egypt. During this meeting, the Assistant U.S. Attorneys communicated their intention to seize and forfeit the Mask pursuant to 19 U.S.C. 1595a.” The museum responded by filing the current petition for declaratory judgment.
SLAM wants the federal district court in St. Louis to declare that the mummy mask cannot be seized by federal officials. The museum essentially argues that the US government cannot legally take the mask because the statute of limitations has run out and because there is no reason to believe that the mask is Egyptian property or that it was illegally stolen or smuggled into the United States.
The museum presumes that federal authorities wish to seize the mummy mask under a specific section of the US customs law, specifically 19 U.S.C. §1595a. There are other means to seize the mask under federal or state law, but SLAM assumes (not unreasonably) that this particular law would be used.
The museum first argues that the time has run out for the federal government to seize the mummy mask. SLAM’s lawyers point to the fact that the US government had, at most, five years to seize the mask from the time it had information that the mask was allegedly stolen. The museum cites several examples of how it believes federal officials possessed this knowledge as early as 1998, including that
- the US Department of Justice in February 1998, actually or constructively, received from INTERPOL the museum’s letter inquiring about whether the mask was stolen or illicit and
- the FBI in December 2005 and January 2006 knew or should have know about allegations that the mask was stolen because the founder of the Museum Security Network sent emails to the FBI Art Crimes Program asserting that the mask was probably stolen.
SLAM therefore argues that the United States cannot seize the mummy mask because the statute of limitations clock set by 19 U.S.C. §1621 now forbids it.
Second, the museum claims in its complaint that even if the statute of limitations clock has not run out, federal authorities still cannot seize the mummy mask because “[t]he Museum’s investigation revealed no evidence that the Mask was owned by Egypt under applicable Egyptian law at the time of excavation, that the Mask was stolen from Egypt, or that the Mask had unlawfully entered the United States.”
SLAM argues that federal agents cannot take the mask because the government cannot produce sufficient information to show that the mask was stolen or smuggled into the United States pursuant to 19 U.S.C. §1595a. The museum further points out that “Egyptian Law No. 215 on the Protection of Antiquities, the [cultural patrimony] law applicable at the time the Mask was discovered and excavated, allowed for personal and private ownership of Egyptian antiquities, provided that antiquities could be sold or gifted and, as such, did not establish ownership of the Mask by Egypt.” The museum’s lawyers conclude that “the United States lacks an evidentiary basis for asserting the Mask was stolen pursuant to Egyptian Law No. 215, or seizing and/or causing the forfeiture of the Mask pursuant to 19 U.S.C. § 1595a.”
Now that the complaint has been filed by SLAM, federal attorneys will file a response.
Emerging Missing Information and Discrepancies
SLAM’s complaint says that it purchased the mummy mask sometime in April 1998 from Phoenix Ancient Art in Geneva, Switzerland. The museum acknowledges that Mohammed Zakaria Goneim excavated the mask near King Sekhemkhet’s unfinished pyramid in Saqqara sometime around 1952. SLAM’s reported history of the mask (the provenance) picks up in the early 1960s when the museum reports that “the Mask was a part of the Kaloterna (or Kaliterna) private collection, during which time it was purchased by Ms. Zuzi Jelinek ('Jelinek'), a Croatian collector in Switzerland. In or around 1995, Jelinek sold the Mask to Phoenix Ancient Art, S.A. of Geneva ('Phoenix'). On or about April 3, 1998, the Museum purchased the Mask from Phoenix.”
Absent from the legal complaint are significant pieces of information that one hopes will be filled-in during the ensuing litigation. The court process can oftentimes shed light on murky or unknown facts, and supplemental information in this case can fill in important gaps and clear up lingering discrepancies. A few are described here.
For example, SLAM’s description of the mummy mask’s provenance in its legal complaint differs from the mummy mask’s chain of custody as reported by the Riverfront Times in 2006. That newspaper reviewed the provenance of the mask based on paperwork supplied by SLAM. The Riverfront Times reported that the mask went from excavation/Egypt - to an unknown Brussels dealer sometime around 1952 – to Kaloterna - to Jelinek – to Phoenix Ancient Art/Aboutaam brothers. SLAM’s legal complaint states that the mask went from excavation/Egypt - to the Kaloterna private collection – to Zuzi Jelinek – to Phoenix Ancient Art/Aboutaam brothers.
SLAM’s legal complaint omits a description of who exactly took possession of the mask after it was excavated by the Egyptians. Most importantly the complaint is silent about how an excavated and documented mummy mask legally exited Egypt in the first place. The court papers filed also ignore the fact that Goneim was an antiquities inspector in Egypt and was the archaeologist who discovered Sekhemket’s pyramid site. Goneim’s status as both a scientist and an Egyptian government official/employee are important facts since issues about what laws and regulations he and his Egyptian superiors followed during the 1950s and 1960s are likely to be significant to the question of whether the mask was stolen.
Curiously, the legal complaint also avoids any mention at all of the mask having been seen with a Brussels antiquities dealer. The Riverfront Times reported that SLAM received documents from Phoenix Ancient Art that included a 1997 note from Charly Mathez, an elusive Swiss man, which explained how he spotted the mask in 1952 in the hands of an unidentified antiquities dealer located in Brussels, Belgium. The absence of this information from the legal complaint raises questions.
In any case, the SLAM’s complaint also omits a description of how the mask made its way from the point of excavation to the Kaloterna private collection, or a description of who owned this collection. There is also no information about the date or the nature of the transfer from the Kaloterna private collection to Zuzi Jelinek in Switzerland. The hazy information currently supplied in the legal complaint should be described more fully as the case continues through the federal process.
Meanwhile, SLAM’s assertion that Jelinek sold the mask to Phoenix Ancient Art will likely be challenged by the federal government. The Riverfront Times described an unusual transaction between Zuzi Jelinek and Phoenix Ancient Art, or perhaps the lack of a transaction at all. The newspaper explained:
“According to Swiss telephone listings, a Suzana Jelinek-Ronkuline lives at 84 Quai de Cologny in Geneva. Her telephone number is identical to the one on the letter Phoenix Ancient Art provided to the St. Louis museum. Reached by phone in Geneva, a man identifying himself as Jelinek's son, Ivo Jelinek, says his mother never owned the Ka-Nefer-Nefer mask. ‘This is completely false information. . . .’ Jelinek says his mother's name may be linked to the Ka-Nefer-Nefer mask for another reason: the Aboutaam brothers, owners of Phoenix Ancient Art, rented another house she owns on Quai de Cologny. . . . Presented with this information, Hicham Aboutaam directed the Riverfront Timesto a woman identifying herself as Suzana Jelinek, of Zagreb, Croatia. ‘I bought the mask many many years ago, and I sold it many many years ago,’ says Suzana Jelinek when reached at her Zagreb home. ‘I have so many things in my collection that my children don't know what all I have.’”
Phoenix Ancient Art allegedly bought the mask in 1997 from Jelinek. The purchase price paid by Phoenix was not known, according to the Riverfront Times. But this price hopefully will be reported during the current federal litigation since an object’s fair market value or its undervalue is a piece of evidence used to determine whether property was legally or illegally transferred. It also goes without saying that evidence of a purchase and sale can certainly establish whether Jelinek engaged in a transaction involving the mask. That evidence can take many forms, including evidence of the parties’ bank statements for example, documenting the release of purchase money or the deposit of sale money.
Also of interest is the museum’s reported due diligence. One must always ask “What diligence is due?” The museum’s complaint certainly details a variety of concrete and laudible steps taken to verify the mummy mask’s provenance. However, several questions remain regarding the actual information learned through that diligence and how that information was accepted or rejected when deciding to purchase the mask.
Hopefully we will learn more as the case progresses.
Sources:
THE ART MUSEUM SUBDISTRICT OF THE METROPOLITAN ZOOLOGICAL PARK AND MUSEUM DISTRICT OF THE CITY OF SAINT LOUIS AND THE COUNTY OF SAINT LOUIS v. THE UNITED STATES OF AMERICA, SLAM’s complaint for Declaratory Judgment (February 15, 2011) (http://www.courthousenews.com/2011/02/16/MummyMask.pdf) (last visited February 19, 2011).
Malcolm Gay, “Out of Egypt: From a long-buried pyramid to the Saint Louis Art Museum: The mysterious voyage of the Ka-Nefer-Nefer mask,” Riverfront Times, Feb. 15, 2006 (http://www.riverfronttimes.com/2006-02-15/news/out-of-egypt/full) (last visited February 19, 2011).
Summary of SLAM’s Complaint and Legal Arguments
A declaratory judgment is a binding ruling by a court that decides a party’s rights in a dispute. It is a preventive action taken when a party believes that it will face impending legal action. In this case, SLAM filed a complaint in federal district court to prevent authorities from seizing the mummy mask in its possession. SLAM’s complaint suggests that federal authorities were preparing to seize the controversial mummy mask of Ka-Nefer-Nefer, excavated in 1952 in Egypt and purchased by the museum in 1998 from Phoenix Ancient Art, Geneva. The complaint alleges that “counsel for the Museum was contacted by the United States Attorney's Office for the Eastern District of Missouri in St. Louis, to request a meeting regarding the Mask. On January 13, 2011, the U.S. Attorney's Office in St. Louis hosted a meeting regarding the Mask. In attendance were Assistant U.S. Attorneys from the St. Louis U.S. Attorney's Office and, telephonically, the Southern District of New York, and agents from DHS in St. Louis and, also telephonically, a DHS agent stationed in Cairo, Egypt. During this meeting, the Assistant U.S. Attorneys communicated their intention to seize and forfeit the Mask pursuant to 19 U.S.C. 1595a.” The museum responded by filing the current petition for declaratory judgment.
SLAM wants the federal district court in St. Louis to declare that the mummy mask cannot be seized by federal officials. The museum essentially argues that the US government cannot legally take the mask because the statute of limitations has run out and because there is no reason to believe that the mask is Egyptian property or that it was illegally stolen or smuggled into the United States.
The museum presumes that federal authorities wish to seize the mummy mask under a specific section of the US customs law, specifically 19 U.S.C. §1595a. There are other means to seize the mask under federal or state law, but SLAM assumes (not unreasonably) that this particular law would be used.
The museum first argues that the time has run out for the federal government to seize the mummy mask. SLAM’s lawyers point to the fact that the US government had, at most, five years to seize the mask from the time it had information that the mask was allegedly stolen. The museum cites several examples of how it believes federal officials possessed this knowledge as early as 1998, including that
- the US Department of Justice in February 1998, actually or constructively, received from INTERPOL the museum’s letter inquiring about whether the mask was stolen or illicit and
- the FBI in December 2005 and January 2006 knew or should have know about allegations that the mask was stolen because the founder of the Museum Security Network sent emails to the FBI Art Crimes Program asserting that the mask was probably stolen.
SLAM therefore argues that the United States cannot seize the mummy mask because the statute of limitations clock set by 19 U.S.C. §1621 now forbids it.
Second, the museum claims in its complaint that even if the statute of limitations clock has not run out, federal authorities still cannot seize the mummy mask because “[t]he Museum’s investigation revealed no evidence that the Mask was owned by Egypt under applicable Egyptian law at the time of excavation, that the Mask was stolen from Egypt, or that the Mask had unlawfully entered the United States.”
SLAM argues that federal agents cannot take the mask because the government cannot produce sufficient information to show that the mask was stolen or smuggled into the United States pursuant to 19 U.S.C. §1595a. The museum further points out that “Egyptian Law No. 215 on the Protection of Antiquities, the [cultural patrimony] law applicable at the time the Mask was discovered and excavated, allowed for personal and private ownership of Egyptian antiquities, provided that antiquities could be sold or gifted and, as such, did not establish ownership of the Mask by Egypt.” The museum’s lawyers conclude that “the United States lacks an evidentiary basis for asserting the Mask was stolen pursuant to Egyptian Law No. 215, or seizing and/or causing the forfeiture of the Mask pursuant to 19 U.S.C. § 1595a.”
Now that the complaint has been filed by SLAM, federal attorneys will file a response.
Emerging Missing Information and Discrepancies
SLAM’s complaint says that it purchased the mummy mask sometime in April 1998 from Phoenix Ancient Art in Geneva, Switzerland. The museum acknowledges that Mohammed Zakaria Goneim excavated the mask near King Sekhemkhet’s unfinished pyramid in Saqqara sometime around 1952. SLAM’s reported history of the mask (the provenance) picks up in the early 1960s when the museum reports that “the Mask was a part of the Kaloterna (or Kaliterna) private collection, during which time it was purchased by Ms. Zuzi Jelinek ('Jelinek'), a Croatian collector in Switzerland. In or around 1995, Jelinek sold the Mask to Phoenix Ancient Art, S.A. of Geneva ('Phoenix'). On or about April 3, 1998, the Museum purchased the Mask from Phoenix.”
Absent from the legal complaint are significant pieces of information that one hopes will be filled-in during the ensuing litigation. The court process can oftentimes shed light on murky or unknown facts, and supplemental information in this case can fill in important gaps and clear up lingering discrepancies. A few are described here.
For example, SLAM’s description of the mummy mask’s provenance in its legal complaint differs from the mummy mask’s chain of custody as reported by the Riverfront Times in 2006. That newspaper reviewed the provenance of the mask based on paperwork supplied by SLAM. The Riverfront Times reported that the mask went from excavation/Egypt - to an unknown Brussels dealer sometime around 1952 – to Kaloterna - to Jelinek – to Phoenix Ancient Art/Aboutaam brothers. SLAM’s legal complaint states that the mask went from excavation/Egypt - to the Kaloterna private collection – to Zuzi Jelinek – to Phoenix Ancient Art/Aboutaam brothers.
SLAM’s legal complaint omits a description of who exactly took possession of the mask after it was excavated by the Egyptians. Most importantly the complaint is silent about how an excavated and documented mummy mask legally exited Egypt in the first place. The court papers filed also ignore the fact that Goneim was an antiquities inspector in Egypt and was the archaeologist who discovered Sekhemket’s pyramid site. Goneim’s status as both a scientist and an Egyptian government official/employee are important facts since issues about what laws and regulations he and his Egyptian superiors followed during the 1950s and 1960s are likely to be significant to the question of whether the mask was stolen.
Curiously, the legal complaint also avoids any mention at all of the mask having been seen with a Brussels antiquities dealer. The Riverfront Times reported that SLAM received documents from Phoenix Ancient Art that included a 1997 note from Charly Mathez, an elusive Swiss man, which explained how he spotted the mask in 1952 in the hands of an unidentified antiquities dealer located in Brussels, Belgium. The absence of this information from the legal complaint raises questions.
In any case, the SLAM’s complaint also omits a description of how the mask made its way from the point of excavation to the Kaloterna private collection, or a description of who owned this collection. There is also no information about the date or the nature of the transfer from the Kaloterna private collection to Zuzi Jelinek in Switzerland. The hazy information currently supplied in the legal complaint should be described more fully as the case continues through the federal process.
Meanwhile, SLAM’s assertion that Jelinek sold the mask to Phoenix Ancient Art will likely be challenged by the federal government. The Riverfront Times described an unusual transaction between Zuzi Jelinek and Phoenix Ancient Art, or perhaps the lack of a transaction at all. The newspaper explained:
“According to Swiss telephone listings, a Suzana Jelinek-Ronkuline lives at 84 Quai de Cologny in Geneva. Her telephone number is identical to the one on the letter Phoenix Ancient Art provided to the St. Louis museum. Reached by phone in Geneva, a man identifying himself as Jelinek's son, Ivo Jelinek, says his mother never owned the Ka-Nefer-Nefer mask. ‘This is completely false information. . . .’ Jelinek says his mother's name may be linked to the Ka-Nefer-Nefer mask for another reason: the Aboutaam brothers, owners of Phoenix Ancient Art, rented another house she owns on Quai de Cologny. . . . Presented with this information, Hicham Aboutaam directed the Riverfront Timesto a woman identifying herself as Suzana Jelinek, of Zagreb, Croatia. ‘I bought the mask many many years ago, and I sold it many many years ago,’ says Suzana Jelinek when reached at her Zagreb home. ‘I have so many things in my collection that my children don't know what all I have.’”
Phoenix Ancient Art allegedly bought the mask in 1997 from Jelinek. The purchase price paid by Phoenix was not known, according to the Riverfront Times. But this price hopefully will be reported during the current federal litigation since an object’s fair market value or its undervalue is a piece of evidence used to determine whether property was legally or illegally transferred. It also goes without saying that evidence of a purchase and sale can certainly establish whether Jelinek engaged in a transaction involving the mask. That evidence can take many forms, including evidence of the parties’ bank statements for example, documenting the release of purchase money or the deposit of sale money.
Also of interest is the museum’s reported due diligence. One must always ask “What diligence is due?” The museum’s complaint certainly details a variety of concrete and laudible steps taken to verify the mummy mask’s provenance. However, several questions remain regarding the actual information learned through that diligence and how that information was accepted or rejected when deciding to purchase the mask.
Hopefully we will learn more as the case progresses.
Sources:
THE ART MUSEUM SUBDISTRICT OF THE METROPOLITAN ZOOLOGICAL PARK AND MUSEUM DISTRICT OF THE CITY OF SAINT LOUIS AND THE COUNTY OF SAINT LOUIS v. THE UNITED STATES OF AMERICA, SLAM’s complaint for Declaratory Judgment (February 15, 2011) (http://www.courthousenews.com/2011/02/16/MummyMask.pdf) (last visited February 19, 2011).
Malcolm Gay, “Out of Egypt: From a long-buried pyramid to the Saint Louis Art Museum: The mysterious voyage of the Ka-Nefer-Nefer mask,” Riverfront Times, Feb. 15, 2006 (http://www.riverfronttimes.com/2006-02-15/news/out-of-egypt/full) (last visited February 19, 2011).
Checking Out the Judge's Family
Since in employment law we routinely deal with cases involving gender, this bit of social science reported on in The Volokh Conspiracy, might be worthwhile checking out: Do Daughters Influence Judges?.
Short answer as reflected from the abstract of the article. Yes.
Check out the abstract, and check out your next judge.
Short answer as reflected from the abstract of the article. Yes.
Check out the abstract, and check out your next judge.
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