Upon closer inspection, we later found a hidden tunnel behind a cabinet that led to another safe house on a parallel street. Three Gloamings were arrested and convicted of conspiracy to capital murder and sent to the recently constructed Gloaming wing of a supermax prison in Colorado. Ultimately, the three Gloamings escaped from a holding cell while awaiting transfer. They are currently at large and on the FBI’s ten-most-wanted list.
The missing Madonna painting was never recovered.
Agent Dana Webb’s funeral was held in Austin two days after the raid. I attended and stood in the back. It was a small graveside service. Her kid, the seven-year-old, was a boy.
Several weeks after this art heist incident, the FBI formally announced the formation of a dedicated Gloaming Crimes Unit—light-years in normal government speed. Three full-time agents were assigned initially—myself being the special agent in charge.
1 Please see Appendix Three.
2 The secure station was equipped with a secure panic button for any intrusions into the area. The secure communication lines met requirements of the Standard Line Security as defined by Underwriters Laboratories 827, Standard for Central Station Alarm Service. Magnetic switches could be found on every door in the museum to alert security when any door was opened that should be closed. All windows—none were capable of being opened—were fitted with electromagnetic switches to detect any outward motion. They also contained interior volumetric motion detection devices to sense intrusion. All of the alarm systems were hardwired per acceptable industry standards. They included a system in which attempts to cut the wires, damage or remove the detection device, ground the system, or short out the circuit would send a signal to the monitoring station and to law enforcement.
Every ten to twenty square feet of space contained a motion detector activated at the closure of the museum. Duct entrances were also equipped with motion detecting implements. The exhibition hall itself had locked doors with intrusion detection monitors on the doors.
Unfortunately, unlike many of the most prestigious pieces of art in the permanent collection of the museum, the individual paintings in the exhibition were not alarmed. There was card access but no biometric access on all the doors on all floors except the basement. A bank of closed-circuit cameras lined most corners of every room and on the outside as well, providing coverage for every square foot of the museum exhibition spaces.
Chapter 7
American Bar Association Law Journal
Fall/Winter Issue
“Gloaming and NOBI Virus Litigation as a Precursor to Legislation”
by
Kenneth Holm, University of Virginia School of Law Endowed Professor of Civil Rights and Public Policy
At the time I was contacted by the Human Rights Campaign and the Equal People foundation—and later the Gloaming Council—I was an associate counsel with the law firm Curran, Forest, and Rogers, a New York firm that specialized in civil law, particularly employment issues.
I was drawn initially to the case involving Whitney Talbot, an architect who lived in the East Village in Manhattan. After graduating from Boston College, Talbot accepted a position at Taylor and Wilson Architects in New York City.
Whitney met Ben Oates at a secret late-night EDM party organized by a well-known DJ. Ben was a former physician and now researcher who re-created a year before from an unknown donor. Whitney was entranced by the man, who, in her recollection, seemed to move with every beat of the music “like a solitary gust of wind.” She loved to say things like that. Ben seemed to perceive her interest in him and walked over to her with a smile, and that night they danced for over two hours and never left the floor.
They swiftly began a relationship and spent every night together for months, in spite of Whitney’s demanding day job. Ben Oates lived in the basement of an old tenement in the Bowery that had been renovated to ensure that no sunlight would ever reach the interior living areas. Whitney would leave work and catch a few hours of sleep at home before heading to Ben’s place as the sun went down. From there they attended any number of parties and meetings and openings. As with other Gloamings, New York society embraced Ben; there was always a place to go.
Whitney accompanied Ben to Britain for London Fashion Week. Ben, himself a DJ, among other ventures which marked him as a Gloaming dilettante without peer, would be playing for the Mercedes-Benz Fashion Week–sponsored Topshop Unique party, curated by British Vogue. The nighttime party was held at Winfield House—the Regent’s Park residence of Oscar Lampley, the United States ambassador to the United Kingdom, and his wife, Felicity. The party was the premier event of Fashion Week. Whitney almost felt like an afterthought as Ben interacted with a multitude of admirers. An informal receiving line even grew, as if Ben were a head of state.
Ben was the type of person to make rash decisions (this was before the Gloamings put self-imposed restrictions on the type of people to be re-created) and totally immersed himself in his relationship with Whitney. When he impetuously offered to re-create her so that they could be joined as one, Whitney (rather impulsive and passionate herself) readily agreed. It was a successful re-creation and she moved in with Ben soon thereafter. Unfortunately, and surprisingly, the relationship did not last. They went their separate ways: Ben to London and Whitney back to her life in New York. Her employer was perfectly happy to accommodate her new status, as it was a progressive firm.
Talbot applied to purchase a unit in the high-end cooperative building the Barclay, on West Seventy-Fifth Street. After her offer on the property was accepted, Whitney completed the application (presenting a stellar credit score, three years’ worth of tax returns, reference letters, and a 2 percent debt-to-income ratio). She then conducted an interview with the five-person co-op board, which lasted about twenty minutes. One of the board members asked what kind of modifications Whitney would make so that the apartment would be Gloaming-friendly.
Whitney informed them that any modifications would be temporary and that nothing in the physical structure of the apartment would be changed.
The next day, Whitney Talbot’s broker was informed that the board had rejected her application.
Talbot sued under the Fair Housing Act in New York State Court, alleging that the rejection was based on a discriminatory reason and violated various state and federal civil rights laws. Obviously, it was illegal for the board to reject an application based on race, ethnicity, or religion. However, status as a Gloaming was not immediately considered one of the protected classes.
The case was sent to mediation, where no agreement could be reached.
The case went to trial and the court found that Whitney Talbot’s status as a Gloaming was considered to be a protected class and that the board discriminated against Talbot by denying her application.
As the Gloaming population increased in those few months, many of the re-created began to push for more rights to accommodate their unique position in this country. Many of the Gloamings were being terminated from their jobs because many employers had no use for an employee that could not work during traditional nine-to-five working hours. The Gloamings attempted to assert that their condition was covered by either the Family and Medical Leave Act (FMLA) or the Americans with Disabilities Act (ADA). Many courts upheld the rights of employers to terminate them for the material change in circumstances; federal courts were also unwilling1 to extend the protections of FMLA or ADA to cover the Gloamings and their new condition.
However, the Supreme Court soon took up the first case involving Gloamings in Kurt Jennings, Petitioner v. Allen and Jacobs, LLC. On writ of certiorari to the United States Court of Appeals for the Ninth Circuit. Let’s look at the relevant portions of the opinion (see Appendix One for the full opinion by the court):
Justice Kagan delivered the opinion of the court:
We address in this case the application of the Americans with Disabilities Act of 1990 (ADA), 104 Stat. 327, 42 U.S.C. § 12101 et seq., to persons infected with the Nogales organic blood
illness (NOBI). We granted certiorari to review, first, whether NOBI is a disability under the ADA when the infected person has willingly taken affirmative steps to become infected.
Petitioner Kurt Jennings has been infected with NOBI since 2019. He admits that he sought out the NOBI illness over a certain number of months in order to be re-created as a Gloaming.2 Jennings did not inform senior partners at the law firm of Allen and Jacobs, where he was employed as an associate counsel. After taking two weeks of accrued vacation leave, petitioner informed senior partners of the firm that he had re-created and become a Gloaming. After which he used another two months of sick and vacation time. He then asked the partners at the law firm if he would be able to continue his work for the firm but with hours solely during the nighttime, as he could not safely be out during the daytime. Respondent informed Jennings that if he was unable to conduct his job duties during the assigned daytime hours, his employment would be terminated. Thereafter, petitioner’s employment was terminated.
Petitioner filed a charge of disability discrimination under the ADA with the Equal Employment Opportunity Commission (EEOC). After receiving a right to sue letter, petitioner filed suit in the United States District Court for the District of Arizona, alleging that respondent had discriminated against him “on the basis of his disability, or because [respondent] regarded [petitioner] as having a disability” in violation of the ADA. App. 26. Specifically, petitioner alleged that due to his acquiring the NOBI he actually has a substantially limiting impairment or is regarded as having such an impairment, see id., at 23–26, and he is thus disabled under the Act.
Petitioner sued respondent under state law and § 302 of the ADA, 104 Stat. 355, 42 U.S.C. § 12182 alleging discrimination on the basis of his disability. The District Court dismissed petitioner’s complaint for failure to state a claim upon which relief could be granted. See Civ. A. No. 18-5-115 (Mar. 13, 2018). App. to Pet. for Cert. A-27. Because petitioner willingly acquired his impairment, the court held that he was not actually substantially limited in any major life activity and if he was then such limitation was self-imposed and thus had not stated a claim that he was disabled within the meaning of the ADA. Id., at A-32 to A-36.
The court also determined that petitioner had not made allegations sufficient to support his claim that he was “regarded” by respondent as having an impairment that substantially limits a major life activity. Id., at A-36 to A-37.
The Americans with Disabilities Act of 1990 prohibits discrimination by covered entities, including private employers, against qualified individuals with a disability. A “qualified individual with a disability” is identified as “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” § 12111(8).
We first review the ruling that petitioner’s NOBI infection does not constitute a disability under the ADA. We hold petitioner’s NOBI infection was not a disability under subsection (A)3 of the definitional section of the statute. In light of this conclusion, we need not consider the applicability of subsections (B)4 or (C).5
Our consideration of subsection (A) of the definition proceeds in three steps.
First, subsection (A) requires us to determine whether respondent’s condition constituted a physical impairment.
NOBI is not included in the list of specific disorders constituting physical impairments, in part because NOBI was not identified as a known virus until 2018. See Cartwright. NOBI infection does at first glance fall within the general definition set forth by the regulations, however.
The disease follows a predictable and, as of today, an unalterable course. However, all research into NOBI has, as of yet, failed to determine specifically how the virus changes the structure of the human body or if it changes every carrier in the identical manner.6
A person is regarded as having NOBI when his or her internal and blood ionizing radiation measures 20.0 millisieverts (mSv). U.S. Dept. of Health and Human Services, Public Health Service, CDC, 2018 Revised Classification System for NOBI Infection and Expanded Surveillance Case Definition for NOBI Among Adolescents and Adults. Such molecular changes in the person afflicted with the NOBI virus cause the person to have an absolute inability to be exposed to direct or indirect sunlight. Any exposure to the sun in even an indirect manner (although research is incomplete regarding how indirect the exposure can be to qualify as physically safe) will cause a form of spontaneous combustion within the body of the Gloaming and if the exposure covers a substantial portion of the body can cause death. Watt and Collins, NOBI Principles, 7.1–8, 8.1–20.7
The Rehabilitation Act of 1973, 29 U.S.C. § 706(8)(B) (1988 ed.) and the definition of “handicap” contained in the Fair Housing Amendments Act of 1988, 42 U.S.C. § 3602(h)(1) (1988 ed.), are not operative, and the definition not satisfied, unless the impairment affects a major life activity. Petitioner’s claim throughout this case has been that the NOBI infection placed a substantial limitation on his ability to spend any time outside during daylight hours. App. 18; 1015 F. Supp., at 587; 200 F. 4th, at 515. Given the pervasive and incurable course of the disease, its effect on major life activities of many sorts might have been relevant to our inquiry. Petitioner and a number of amici make arguments about NOBI’s profound impact on almost every phase of the infected person’s life. See Brief for Petitioner 35–45; Brief for Gloaming Medical Association as Amicus Curiae 20; Brief for Infectious Diseases Society of America et al. as Amici Curiae 8–15. In light of these submissions, it may seem legalistic to circumscribe our discussion to the activity of sunlight. The ability to be exposed to sunlight falls well within the phrase “major life activity.” A person’s ability to be in sunlight and the activities that accompany such an ability are central to the life process itself.
While respondent concedes the importance of petitioner having the ability to be safely outdoors during daylight hours, they claim that Congress intended the ADA only to cover those aspects of a person’s life which have occurred through no fault of their own. Brief for Petitioner 18, 32, 44, 77; see also id., at 55–57 (citing Flack v. Roberts Construction, 22 F. 5th 574, 225 (CA8 2018)). The argument centers on the definition of disability in the ADA which defines a person with a disability as a person who has a physical or mental impairment that substantially limits one or more major life activities.
These regulations are contrary to petitioner’s attempt to expand the meaning of the term “disability” to disregard the intent of the disabled person. Petitioner attempts to note no difference between a person who engages in risky behavior such as skydiving, working with hazardous chemicals, and operating in a war zone as a soldier and the manner in which he acquired his disability. People in the occupations that petitioner listed accept the chance that they may acquire a disability in their chosen profession but they realize that it is not a certainty that they will be disabled. In contrast, petitioner knew with absolute certainty that when he became a Gloaming he would lose the ability to be in direct or indirect sunlight for the rest of his natural life. Petitioner advances no credible basis for having one’s own detrimental actions lead to coverage under the ADA.
In the end, the disability definition does not turn on personal choice. When significant limitations result from the impairment, the definition is met even if the difficulties are not insurmountable. However, when a person willingly brings changes of a harmful physical nature which are an absolute certainty then the Act should not afford the person the same protections afforded those who have acquired the limitations through no fault of their own. Testimony from the petitioner that his NOBI infection was entirely his choice is unchallenged. App. 22; 721 F. Supp., at 412; 107 F. 5th, at 524. In the context of reviewing summary judgment, we must take it to be true. Fed. Rule Civ. Proc. 56(e). We agree with the District Court and the Court of Appeals that no triable issue of fact impedes a ruling on the question of statutory coverage.
In conclusion, petition
er’s NOBI infection is a physical impairment which substantially limits a major life activity, as the ADA defines it; however, his impairment is not covered by the ADA because he willingly and with absolute certainty acquired the infection through his own actions.
The determination of the Court of Appeals that petitioner’s NOBI infection was not a disability under the ADA is affirmed. The judgment is vacated, and the case is remanded for further proceedings consistent with this opinion.
From that point, the Gloaming hierarchy, without the court system available to address their issues, decided to concentrate on legislative changes to correct the civil rights deficiencies in the current laws. They began operating a civil rights organization called Equal People—which was staffed with investigators and attorneys. Surprisingly or not, the majority of them were non-Gloamings. These were people derisively described as hangers-on or groupies of the Gloamings—or more likely those who aspired to be re-created.
The organization began to receive reports of private businesses and state government entities that refused to accommodate the night dwellers: by not having courts open during nighttime hours, by not accommodating inmates in jails who were Gloamings, or by not having driver’s license offices and other essential state offices open during night hours. Other issues dealt mostly with private business discrimination against the Gloamings: landlords who wouldn’t rent to Gloamings, or hospitals that refused to equip instruments or medications to assist ailing Gloamings.
And then, according to many Gloamings and Gloaming historians, one of the most important events in the Gloaming equal rights movement occurred: the killing of Guy Brady.
Brady was a forty-year-old Gloaming who had been re-created a year before. The circumstances of his re-creation are unclear, but Brady was a highly successful and wealthy attorney who made his money litigating medical malpractice suits in numerous states.
A People's History of the Vampire Uprising_A Novel Page 11