Let Us Legally Contemplate the Dump Truck

Hello. Today, the day after a federal judge and the president of the United States embarked on a face-off that could result in a glorious re-assertion of the principles of James Madison or the death of democracy as we know it, I need to remind you of another legal conundrum we face. It is not of equal gravitas or potential consequence, but is also not without merit or interest.

The jurisprudential question at hand:

Is it okay, ethically and legally, to protest the grotesque political influence of the leprous Elon Musk by indiscriminately depositing sealed, warm plastic bags of dog poop on the hoods or trunks of Tesla CyberTrucks parked in the street?

The question occurred to me just last week after I implied, in this newsletter and elsewhere, that though I decried the recent spate of key-scrape defacements of Tesla CyberTrucks, I was sympathetic to that recent, softer form of dog-walker protest. It does no damage. It seems, intuitively, to be an exercise in First Amendment rights.

I then got an email from a close friend of mine — no fan of Trump or Musk — who was somewhat shocked that I had publicly endorsed “vandalism.” I decided it was time to consult a lawyer. But what kind of lawyer?

Only one kind seemed appropriate: A personal injury lawyer who is well advertised online. Very well advertised.

I found Cohen & Cohen, an aggressive Washington law firm representing plaintiffs in personal-injury cases. According to the firm’s website, its managing partner, Wayne R. Cohen, has appeared on ABC, NBC, The Washington Post, The Today Show, WTOP, Good Morning America, Fox News, USA Today, FOX 5, ESPN Radio, The Washingtonian, The Wall Street Journal, and The Examiner. Quoting The Washingtonian, Mr. Cohen is described on that website as “one of the city’s most feared personal injury lawyers.” He is ruggedly handsome. He appears stylishly in a sports jacket, but with face stubble, like a 1930s movie gunsel.

Mr. Cohen quickly responded to my email, in which I had presented the broad outlines of the issue.

Me: So, I need to begin with an important question.

Wayne: Okay.

Me: What kind of a name is “Wayne” for a nice Jewish boy?

Wayne: I think my mother had a crush on Wayne Newton or something.

Me: Okay. Have you considered the issue at hand?

Wayne: Yes. I considered your fact pattern and I have done some deep research on ChatGPT.

Me: Doo diligence!

Wayne: So, as a perpetrator here, you have two buckets. In one bucket are potential criminal liabilities, and in the other are potential civil liabilities. Criminally, there might be some vandalism statute — are you soiling or defacing someone’s property? — but … this is in a bag, right?

Me: Plastic bag! Tightly sealed!

Wayne: So you could make the argument that it is no different than putting a flyer on a car.

Me: Exactly!

Wayne: Okay, there is the potential crime of malicious property destruction, but this doesn’t fall under that because nothing is destroyed. There would be criminal trespass, but that would only apply if you were going inside the vehicle or if it were on the guy’s property, in his driveway or something. This is a public street, right?

Me: Absolutely!

Wayne: It could fall under “stalking and harassment,” but that would only attach if it was the same person, and the same car, all the time.

Me: Nope. The whole point would be doing it scattershot.

Wayne: Okay, you would be littering. I’d have to look at it more thoroughly, but my gut tells me that that might have legs. Illegal dumping of waste. But that’s not a criminal offense. That would be civil, over in the second bucket.

Me: Let’s dive into the second bucket.

Wayne: A plaintiff could sue for intentional infliction of emotional distress. But it has to go beyond all possible bounds of decency, requiring extreme and outrageous conduct. You’d have to have those two prongs. It’s too thin an argument. So, you’re left with simple littering. That would be a fine. So you’d have to ask yourself — I’d have to ask my client — “Is the proverbial juice worth the squeeze?”

Me: Meaning?

Wayne: Is it worth the fines you may get?

Me: Meaning?

Wayne: Meaning, as an advocate I would ask: If you get arrested or cited, will the press and public attention help you spread awareness of your political point?

Me: Ah.

Wayne: Yeah.

Me: But you are not advocating this behavior?

Wayne: I am just asking questions.

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So, there we have it. Me, too. He is a lawyer. I am a journalist. We are just asking questions.

Today’s Gene Pool Gene Poll:

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That’s it for the day. Only one more matter of business to discuss.

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