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Breaking Legal Developments


Published by:
Peter A. Lynch, Esq.
of Cozen O'Connor


EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. Tenth Circuit Upholds Conviction for Cross Burning
  2. Florida Appellate Court Reverses Attempted Arson Conviction
  3. Second Circuit Permits Suit to Proceed Alleging Warning Inadequate on Danger of Flash Fire


In U.S. v. Magleby, Case No. 99-4245, on March 7, 2001, the 10th Circuit Court of Appeals reviewed the defendant's conviction for cross burning. The defendant was convicted on four counts of an indictment stemming from the burning of a cross on the property of an interracial family. On appeal, he argues that the evidence of his guilt regarding three of the four counts was insufficient to support his conviction.

18 U.S.C. 844(h)(1) makes illegal the use of fire to commit a felony. At trial, he did not deny igniting a cross in the Henrys' yard. Consequently, if the evidence is sufficient to sustain his conviction under 18 U.S.C. 241, it is also sufficient to sustain his 844(h)(1) conviction.

Section 241 is violated "[i]f two or more persons conspire to injure, oppress, threaten, or intimidate any person . . . in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States." Section 241 requires that a "specific intent to interfere with the Federal right . . . be proved." United States v. Guest, 383 U.S. 745, 760 (1966). The defendant does not argue that the Henrys do not have a federally protected right to occupy their home. Rather, he contends that the evidence was insufficient to prove beyond a reasonable doubt that he intended to "oppress, threaten, or intimidate" the Henrys in their enjoyment of that right.

The record contains substantial evidence of the defendant's intent. He testified that he decided to burn a cross to "rile people up." Tr. at 921. He acknowledged that he knew the public found cross burning highly objectionable. He anticipated that the cross burning would receive the attention of the news media. He admitted that he understood the message of racial hatred conveyed by a burning cross. He further admitted that he intended to burn and did burn the cross in the Henrys' yard. Given this evidence of his understanding of the meaning of a burning cross to the general public and the placement of the burning cross in the Henrys' yard, the court concluded that the jury could reasonably infer that he intended to oppress, threaten, and intimidate the Henrys in the free exercise of their federal right to occupy property. His convictions were affirmed.


In Moore v. State, Case No. 2d99-4207 (Mar. 7, 2001), the Second District Court of Appeal of Florida reviewed the defendant's conviction for attempted arson of a dwelling and possession of a fire bomb. The court reversed the convictions finding the evidence insufficient.

The defendant visited the home of his employer to discuss his pay. About an hour and a half after he left, his employer observed a fire in the vicinity of his driveway. He went to his front door and saw the defendant holding a bottle, bent over as if he were trying to do something to it. The employer asked what he was doing and declared that he was going to call the police. At this point, the defendant threw the bottle toward the door and ran away. The employer telephoned the police while his wife used a garden hose to put out the fire, which was burning in a rock garden adjacent to the driveway.

He was charged with attempted arson of a dwelling and with possession, manufacture, transport or disposal of a fire bomb. The evidence at trial reflected that the bottle he threw toward the house was stuffed with cloth rags. But it bore no signs of having been ignited, and the forensic chemist who tested it for the State was unable to detect any flammable substance.

The information against the defendant charged him specifically with attempting to commit an arson of "a certain dwelling house, or its contents . . . contrary to Chapter 806.01(1)(a)/777.04, Florida Statutes." Thus, to prove the charge the State was required to show that he was interrupted while intentionally trying to burn his bosses house. It failed to do so. The State showed that he threw an unlit bottle containing rags toward the front door of the house. But this circumstance did not prove that he had ever intended or attempted to burn the house; it was just as consistent with the possibility that he was interrupted while engaged in some other iniquity-even, perhaps, attempting to burn an unoccupied "structure" such as the rock garden-and simply threw the bottle to facilitate his escape. As such, the circumstantial evidence was insufficient to sustain his conviction for attempted arson of a dwelling. Isaac v. State, 730 So. 2d 757, 758 (Fla. 2d DCA 1999).

Neither did the evidence prove him guilty of the fire bomb charge. Section 806.111, Florida Statutes (1997), makes it illegal to possess, manufacture, transport or dispose of a fire bomb, defined as "a container containing flammable or combustible liquid, or any incendiary chemical mixture or compound having a wick or similar device capable of being ignited or other means capable of causing ignition[.]" Here, the evidence showed that he possessed a container with a wick or similar device, but there was no proof that it contained a flammable or combustible liquid. Hence, those convictions were reversed.


In Milanese v. Rust-Oleum Corp., (decided March 01, 2001) Docket No. 00-7527, the Second Circuit Court of Appeals reviewed dismissal of the plaintiff's complaint for injuries sustained by using primer resulting in a flash fire. The plaintiff sustained burns over 35% of his body.

In December 1996, the plaintiff dedicated his evenings to rust proofing the chassis of his Ferrari. This tedious operation required brushing the entire under body of the car, then applying a rust preventing primer coat, followed by a coat of enamel. For use in priming and painting, he bought a can of Rust-Oleum Rusty Metal Primer (the "Primer") and a can of Rust-Oleum Protective Enamel (the "Enamel"). While using the primer, vapors were ignited by the flame in an adjacent wood burning stove, causing a flash fire that severely burned the plaintiff.

On the front of the Primer can appeared the following warning in red, bold letters: "DANGER: EXTREMELY FLAMMABLE. CONTENTS UNDER PRESSURE. VAPOR HARMFUL." The directions for use on the back of the can stated: "Use outdoors, or in a well ventilated area, when temperature is above 50 F (10 C) and humidity is below 85% to ensure proper drying. Avoid spraying in very windy, dusty conditions."

On the back of the Primer can the following precautions also appeared: CONTAINS TULUOL AND XYLOL. Keep away from heat, sparks and flame, including pilot lights and cigarettes. Avoid over-exposure to vapors. To avoid breathing vapors or spray mist, open windows and doors or use other means to ensure fresh air entry during application and drying. If you experience eye watering, headaches or dizziness, increase fresh air or wear respiratory protection (NOSH/MSHA TC 23 C or equivalent), or leave the area. Avoid contact with skin. DO NOT puncture or incinerate.

To support his cross-motion, the plaintiff attached the deposition testimony of a Rust-Oleum employee, Larry West, a Safety and Industrial Hygiene Coordinator. West had admitted that: (1) the same propellant is used in both the Primer and Enamel; (2) the propellant, which is a vapor, is extremely flammable; and (3) vapors from the Primer (which include both the propellant contained in the liquid primer itself and the vapors that are emitted from the liquid once it has been sprayed onto a surface) may cause flash fires. When asked to explain why, unlike the Primer can, the Enamel can warned that both the liquid Enamel and its vapors were flammable and that the vapor may cause flash fires, West answered that the Enamel was in "a later generation can;" and he speculated that the Enamel may contain a raw material that makes it more flammable than the Primer. West contended that the very warning "EXTREMELY FLAMMABLE" on the Primer can implied that both the liquid primer and its vapors were flammable, and that the precautions regarding proper ventilation adequately protected the consumer from the flash fire hazard.

The Court of Appeals found the District Court erred in dismissing the case and not allowing the plaintiff to amend the complaint. There existed, a material issue of fact as to whether the danger of flash fire caused by the vapors is a primary hazard that is separate and distinct from the flammability of the liquid product. If so, the Primer label complies with the FHSA only if it "states conspicuously . . . an affirmative statement of [this] principal hazard . . . [and the necessary] precautionary measures describing the action to be followed or avoided . . . ." 15 U.S.C. 1261(p)(1)(E) and (F). Assuming that flash fire from the Primer vapor is a hazard distinct from the flammability of the liquid product, the court could not hold that, as a matter of law, the Primer can fully complies with the FHSA.

Mr. Lynch can be reached at Cozen and O'Connor, 501 West Broadway, Suite 1610, San Diego, California 92101, 800-782-3366 (voice), 619-234-7831 (fax), (e-mail),, emergency loss assistance - pager (619) 333-2713.

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