In Which Judge Fred Biery Enjoys the Hell Out of Denying a Preliminary Injunction

My God, but the law is dreadful most of the time. Trust me. Really. It's insufferable.

So: best to take what pleasures you can when they become available.

United States District Judge Fred Biery of the Western District of Texas understands. That's why he wrings amusement from the dirty throat of the law whenever possible. Of course, that's easier to do when you have life tenure, a bitchin' robe, and armed federal marshals at your disposal, but the point is his spirit is admirable. Judge Biery is well known for amusing himself, and many of his readers, in the course of writing orders. Yesterday, in an order denying a motion for a preliminary injunction against a broad City of San Antonio ordinance regulating strip clubs, he enjoyed himself some more. The order is right here. It begins:

An ordinance dealing with semi-nude dancers has once again fallen on the Court's lap.

. . . and so on, in that style, until:

Should the parties choose to string this case out to trial on the merits, the Court encourages reasonable discovery intercourse as they navigate the peaks and valleys of litigation, perhaps to reach a happy ending.

And in the middle, there is actual law.

I've now written myself well out of contention for any position of public authority anywhere, anywhen. But this sort of order makes me think that if I ever became a judge I could still have fun.

Enjoy. Judge Biery did.

(If you think Judge Biery's humor is adolescent, you haven't seen what judges and attorneys are like when they're being serious. Plus Footnote 5 is masterful.)

Last 5 posts by Ken White


  1. Evan says

    Curiously, just below this post on my RSS reader is one entitled "A Better Denver RTD Strip Map?"

    (It's about the new Denver light rail maps.)

  2. says

    I love it when people in seemingly serious and structured rolls let loose a little humanity. That was an epic display of wit.

  3. Joe Pullen says

    Judge Biery continues to antagonize organized religion as well. I knew there was a reason I liked this guy.

  4. says

    @Ken – well, It is adolescent but I'm generally ok with adolescent, even respect it depending on what form it's taking. Poop humor, things Beavis and Butthead would say etc. are all forms of adolescent dialog I'm fully in support of. On the other hand, the pettiness and nastiness of many bureaucrats is not funny in the least – although in fairness to adolescents, it's usually nowhere near that sophisticated.

    And while I enjoy these, what at least one reader truly yearns for is the unedited legal material you write, comments made similar to whatever you said at Patterico's trial, and you at your snarkiest. If you solicited donations, I'll be the first in line. I'd gladly give my absolutely inconsequential kingdom to read any legal document with "Sniff my Taint" in it. "Ken gone Wild" is like, cool, huh huh, huh huh, and the opposing parties suck.

  5. Jack says

    I cannot begin to express my delight that Judge Biery introduced into the record (is that the correct terminology?) not merely praise of a recently-deceased octogenarian "exotic dancer" but a full-color photo of said dancer in mid-performance (albeit while yet a mere septuagenarian) wearing a full-body leopard-print stocking. Words fail me.

    Any chance of you making the appendix available here, Ken, or pointing us to where we can find it ourselves?

  6. That Anonymous Coward says

    There is much we can learn from this Judge.
    It is one thing to call someone a fsckwad, it is another to do it with skill and flair and avoid the exact words.

    It is the verbal 'Psycho' effect.
    Ask someone the most gruesome scene in 'Psycho' and they will mention the shower scene, somehow forgetting you never see the knife touch her.

  7. says

    Here's what I don't understand: this is Texas, right?

    And Texans own guns, don't they?

    So why can't they handle their government's overreaching?

  8. says

    Footnote one was also interesting. "Salome" is one of the few Sarah Bernhardt posters that I don't have; it was before her long standing collaboration w Alfonse Mucha began.

  9. Fred says

    "Plaintiffs, and by extension their customers, seek an erection of a constitutional wall separating themselves from the regulatory power of City government."

    I have tears coming out of my eyes.

  10. says

    That was outstanding. People might have more respect for the judicial system if all orders and rulings were written that way.

  11. says

    Oh my…
    So much innuendo…
    I have never seen such a cleverly funny (but I have seen plenty of stupid funny, eg Prenda & Carreon filings) legal document before.
    This was exactly the pick-me-up I needed tonight.

  12. Sacho says

    That order was…amazing! Truly an epic piece of writing. I don't understand one of the Judge's points, though. In his argument that the Plaintiff hasn't show likely success on the merits of the claim, he notes: "Additionally, the City does not have to show a correlation between the bikini top requirement and the amelioration of deleterious secondary effects".
    I skimmed over some transcript of the linked document, but I didn't see anything to support that(and it doesn't make sense from a common sense perspective). Could someone shed some light on why this is the case?
    That specific linked document also brings up some studies of SOBs and their secondary effects. I'm highly skeptical they didn't get their causation and correlation wrong – but the studies didn't even try to test the fabric-to-crime ratio the City is trying to police here.

  13. Jim Tyre says

    Has anyone noticed that all but one of the group bloggers now use their surnames? And I'm quite certain that, just like Ken, they're all using their real ones.

    Ken White
    Patrick Non-White
    David Beige
    Derrick Eggshell
    Grandy Alabaster
    Charles Ivory
    Clark Bianco
    Via "Albescent" Angus

  14. James says

    The all-time master of humorous prose disguised as legal opinion was Judge Terrance Evans who sat on the 7th Circuit Court of Appeals. We would recant, at length, the history of criminal cases detailing the many errors made by gangs that couldn't shoot straight.

    However he made even cases involving the Lantham Act readable. A small sample from an opinion in a high stakes case involving toilet paper.

    We’ll start by introducing the combatants. In the far
    corner, from an old cotton-producing state (Dixie: “I wish
    I was in the land of cotton, old times there are not forgotten.”)
    and headquartered in the area (Atlanta) where
    Scarlett O’Hara roamed Tara in Margaret Mitchell’s epic
    Gone With the Wind, we have the Georgia-Pacific Company.
    Important to this case, and more than a bit ironic, is that
    the name of Georgia-Pacific’s flagship toilet paper is
    Quilted Northern. In the near corner, headquartered in the
    north, in Neenah, Wisconsin (just minutes away from
    Green Bay), and a long way from the land of cotton, we
    have the Kimberly-Clark Corporation. Ironically, its
    signature toilet paper brand is called Cottonelle.

    Full opinion is here:

    Sadly this was his very last case as he passed away a few days later. RIP indeed.

  15. pat lyons says

    I wish somehow the whole Prenda Law deal could wind up in this guy's court.

  16. LT says

    Witty, well-researched, and he quotes Salome and To Kill a Mockingbird to make his points. I like this guy.

    @James- I now know more about trademark law- and toilet paper- than I ever wanted to know, but I have to give the guy his due- he made it readable and definitely understandable ever for the layman.

  17. IJM says

    Popehat needs to do a legal Emmy awards. Biery gets the 2013 nomination for best use of quotes. Judge Wright in Prenda is clearly the front runner of Best General All Round Badass.

  18. Ryan says

    Just wanted to provide Canada's most recent contribution to enjoyable decisions, from Justice O'Donnell in Ontario. The defendant was a 'Freeman-on-the-land' type individual, and while O'Donnell found him not guilty, he had more amusing thoughts on the defendant as a whole.

    Also, the main decision he cites, Meads v Meads, 2012 ABQB 571, is not particularly funny, but a phenomenal piece of jurisprudence. It's 188 page long and would have likely earned the Justice an LLM if he'd submitted it to a law school. Instead its been on the list of 3 most read decisions on CanLii (Canada's major legal reference site) nearly every week since it was issued last September.

  19. MattS says

    A question to any of the lawyers here. The Canadian case cited by Ryan concludes that a citizen can lawfully resist an unlawful arrest. How would US courts be likely to judge a case of resisting arrest where no evidence is produced to indicated that the arrest the defendant is alleged to have resisted was lawful?

  20. says

    Epic win. I cried in my pants.

    For the record, I live just north of San Antonio, and I can tell you that every strip club there could only be IMPROVED by shielding the customers' eyes with more fabric. San Antonio is where strippers go to die.

  21. Corry says

    It is a Strip Club who cares.Another reason America is turning into a police State.

  22. says

    On a related note, I appreciated in a if-you-don't-laugh-you'll-cry way the commentary elsewhere that Texas works a lot harder to keep "tittys" away from schools than it does to keep explosive fertilizer away.

  23. Jack (the one with the cat avatar) says

    Sincere and heartfelt thanks to Joe Carl White, Jenna Sheridan, and (representing Canada) Ryan for their recommendations and links to three deliciously-entertaining legal judgments. (No offense meant to James or his choice of Judge Terrance Evans's order to praise; I simply haven't yet read it. The quoted paragraph is, however, quite droll all on its own.) I enjoyed reading all three documents in their entirety.

    MattS, a lately-banned (largely unlamentedly so) commenter, inquired thus:

    A question to any of the lawyers here. The Canadian case cited by Ryan concludes that a citizen can lawfully resist an unlawful arrest. How would US courts be likely to judge a case of resisting arrest where no evidence is produced to indicated that the arrest the defendant is alleged to have resisted was lawful?

    While I, personally, found MattS's contributions here frequently obnoxious and occasionally noxious, this particular query raised an issue I wonder about as well.

    From what I've been able to glean based on news reports of various incidents, police in the United States typically have statutes available to them which give them essentially discretionary power of arrest, either as a matter of law or because their word carries more weight with prosecutors (and judges and/or juries) than a defendant's version of events.

    However, if a situation existed in which a USAmerican police officer (and any lawyers responding should feel free to answer this hypothetical with reference to any specific local, state or federal jurisdiction's laws) had neither true legal basis nor reasonable belief in such a basis for arresting a particular citizen, would that citizen create a basis for arrest merely by resisting the improper arrest?

    (We may imagine that this hypothetical misbehaving police officer's attempt at unlawful arrest was captured on video by a third-party bystander and/or the officer's own dash-cam, if that would improve the plausibility of the scenario.)