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“Walking Dead” in the Federal Courts

May 24, 2012

There are fourteen Federal Court opinions that use the phrase “walking dead”.

The first is the 1962 Supreme Court case of Robinson v. California, 370 U.S. 660, in which Justice Douglas quotes the New York Law Journal in his concurring opinion to describe drug addicts as walking dead:

The extreme symptoms of addiction have been described as follows:

“To be a confirmed drug addict is to be one of the walking dead . . . . The teeth have rotted out; the appetite is lost and the stomach and intestines don’t function properly. The gall bladder becomes inflamed; eyes and skin turn a billious yellow. In some cases membranes of the nose turn a flaming red; the partition separating the nostrils is eaten away — breathing is difficult. Oxygen in the blood decreases; bronchitis and tuberculosis develop. Good traits of character disappear and bad ones emerge. Sex organs become affected. Veins collapse and livid purplish scars remain. Boils and abscesses plague the skin; gnawing pain racks the body. Nerves snap; vicious twitching develops. Imaginary and fantastic fears blight the mind and sometimes complete insanity results. Often times, too, death comes — much too early in life . . . . Such is the torment of being a drug addict; such is the plague of being one of the walking dead.” N. Y. L. J., June 8, 1960, p. 4, col. 2.

Three of the cases are threats made to someone’s life. “You’re a walking dead man.” Montgomery v. Herring, 193 B.R. 344 (1995); “You’re a walking dead man, I promise you that.” Wilson v. Washington, 138 F.3d 647 (1998); “unidentified persons told him “That I was a walking dead man and that I wouldn’t be able to live””, United States v. Smith, 139 Fed. Appx. 681 (2005). Another is harassment, “commented that an extremely pale female student dressed in black clothing looked like the “walking dead””, Roman v. Cornell Univ., 53 F. Supp. 2d 223 (1999)

Only one is an about intellectual property – regarding the 1936 Boris Karloff Warner Brother’s movie property, “Walking Dead” about technology keeping people alive. See NinjaLaw post synopsis on this same case Columbia Pictures Indus. v. Landa, 974 F. Supp. 1 (1997).

One is about the effects of alcohol. “Eberle testified that at times she has consumed one and a half pints of vodka per day, plus beer. She admits she became loud and argumentative when she drank. She would drink until she passed out, and has described herself as the “walking dead” or “walking zombie.””, Eberle v. City of Newton, 289 F. Supp. 2d 1269 (2003)

Two refer to criminal defense arguments. See my two previous ZombieLaw posts about Wilkinson v. Hedgpeth (2011) in which the defense counsel said “walking dead” to explain his zombie defense argument. And see Steward v. Grace, 362 F. Supp. 2d 608 (2005) where another defense attorney’s closing argument is described using the phrase.

Three refer to psychologically depressed people. In Miller v. Astrue (2009), a major depressive with “hallucinations and … recurrent obsessive thought that he’s a walking dead man and should be dead”; In Martinez v. Astrue (2010), “Claimant stated that she felt like the “walking dead” but now “feels better; the Cymbalta is working.””, In Hernandez v. Martel, 824 F. Supp. 2d 1025 (2011), a suicidal schizophrenic gets death sentence vacated: “Her family described her as a zombie who was flat in affect, moved in slow motion, dragged her feet and was like a walking dead person”.

One corporate debt finance reference: Cal. Serv. Emples. Health & Welfare Trust Fund v. Advance Bldg. Maint., Inc., (2010) “the company was “fighting for its survival” and was “suffering from severe financial difficulties.” …independent accountant, Steven Vallen, concurred and noted that, at the time, Advance was among the “walking dead.””

The most unusual is Perri v. Obama (2011) part of a series of crazy cases filed by Anthony Perri, a pro se complainant with many frivolous and incomprehensible conspiracy theory claims against New York and Federal government. One of his cases against Bloomberg was remanded by the Circuit Court to see if the plaintiff was competant and/or if he needed a guardian ad litem. He is not competent, but the guardian ad litem is unnecessary in this case because the claims are without a germ of a non-frivolous complaint. In this case he believes subway posters for “walking dead” and “Burn Notice” are part of a government conspiracy that somehow relates to toxic dust in his residence and a network of people following and flashing body parts at him.

Two other cases are worthy of mention as “walking dead” cases.

In Merzon v. County of Suffolk, 767 F. Supp. 432 (1991) a witness to a wrongful police shooting “recalls walking to the dead end of East Gate. She saw Cantara on the ground being kicked by a policeman and Merzon standing with both his hands up.” Then the police officer shot Merzon twice, killing him.

And last but not least, a fascinating reference from 1918 in which the Court finds no negligence for this railroad employees death on the “dead” tracks. In Hoyer v. Central R. Co., 255 F. 493 (1918): “The night of the accident was dark and is described as “a black, drizzly, rainy night,” and “you couldn’t see your hand before you hardly.” ”

The decedent was a brakeman employed by defendant in its switching yards in Newark, N.J., and had been so employed for three years.

It is conceded that the last work he was engaged in was the handling of cars containing freight going out of the state of New Jersey. He had been working with a drill crew in the freightyards that had handled interstate freight. He had completed his work for the day at 6 o’clock in the afternoon, and was on his way out of the freightyard, and supposedly on his way home, walking on the dead track when he was run over and killed by one of defendant’s engines at about 6:30 p.m. He was walking with his back to the engine, and the engine was not sounding a whistle or ringing its bell and was running about eight miles an hour.

It appears that, in order to get out of the yard in which he had been at work, the deceased had only to walk about a block, when he would have reached a public street, where he might have taken a trolley car or proceeded on foot to his home. But he chose to pursue a different course and walked on the dead track, the point of the accident being about a mile from where he had been working. There were two live or high speed tracks adjoining the track upon which the deceased met his death, and these two tracks ran parallel to the dead track. While this was called a “dead” track, this did not mean a track not in use, but merely a track having a switch to other tracks at one end only, and a bumper at the other end. The track was in more or less use for switching purposes, and every night shortly after 6 o’clock it was the custom for the drill crew to run down on the drill engine to the bumper end of this track where the day crew was relieved and the night crew went on duty and took the engine back over the same track and into the yards to carry on the drilling and switching of cars through the night. The defendant was run down by an engine on one of its regular trips.

So does this all mean anything “walking dead”? Drug addicts, walking the tracks at night, depressed, schizophrenic, drunk, criminal, shot by the police? I might try to link it all back to the themes in the Boris Karloff movie, of technology keeping us alive while killing us, but I think that would be about as comprehensible as one of Mr. Perri’s delusional complaints.


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