Decided

Federal Courts Block Abortion Bans in Arizona, Arkansas

2013-05-21T19:39:01Z

Two states have had their early abortion bans blocked in federal court this month, and although Arizona and Arkansas laws are among the first early abortion laws to receive a real federal judicial treatment, they won't be the last.

Many states have been able to push through legislation that complies with Roe v. Wade but still limits abortions, like Texas' pre-abortion ultrasounds. So how did these laws not pass federal muster?

Arizona's 20-Week Abortion Ban

The Arizona law in question makes it illegal to perform an abortion after 20 weeks of pregnancy, except in the case of a medical emergency. The law also requires all women to submit to a pre-abortion ultrasound.

The 9th U.S. Circuit Court of Appeals struck down this ban Tuesday, stating that it violates Roe v. Wade and its related cases, reports the Associated Press. For example, U.S. Supreme Court precedent provides that a woman can exercise her constitutional right to an abortion before a fetus is viable without undue state interference.

In its ruling, the NInth Circuit reasoned that prior to fetal viability -- which typically begins at about 24 weeks -- the state lacks a strong enough interest to prevent a woman from exercising her right to an abortion. Therefore, the 20-week abortion ban must be struck down.

This decision affects all states within the Ninth Circuit, including Idaho which passed a similar ban, according to the AP.

Arkansas' 12-Week Abortion Ban

A separate federal court ruling dealt with Arkansas' ban on abortions after 12 weeks of pregnancy. Arkansas lawmakers passed the ban in March.

But on Friday, a federal judge granted a preliminary injunction after hearing arguments from abortion-rights advocates, reports Politico.

The injunction will prevent Arkansas' Human Heartbeat Protection Act from being enforced until the case has been decided, but it is uncertain whether the Arkansas federal court will follow the Ninth Circuit and strike the law down.

The U.S. Supreme Court set the line for legal abortions at viability in Roe v. Wade four decades ago. With this new spate of early abortion laws, they may soon be called on to redefine that line.

Related Resources:

Judge blocks Arkansas law banning abortions after 12 weeks (Reuters)
Roe v. Wade's 40th Anniversary: What the Court Actually Decided (FindLaw's Decided)
TX Teen Sues Parents Over Abortion 'Coercion' (FindLaw's Law and Daily Life)
Injunction (FindLaw)

Supreme Court Sides with Monsanto in GMO Seed Case

2013-05-14T14:51:01Z

The U.S. Supreme Court has ruled that Monsanto's patent rights were infringed by soybean farmer Vernon Bowman when he planted second-generation seeds that were meant for consumption.

The Court may have made its unanimous decision in the case in small part due to Bowman's somewhat ingenious way of selecting out Monsanto crops from bulk seed mixes and further developing those crops, reports The New York Times.

This ruling, issued Monday, may be the first of many in the battle over GMO foods. But this decision already has significant consequences for growers using genetically modified seeds.

Vernon Bowman Had a Farm, G-M-GMO

In the Supreme Court's Monsanto case, career farmer Vernon Bowman purchased "Roundup Ready" soybeans from Monsanto, which are genetically modified in order to resist the active ingredient in the weed killer Roundup, called glyphosate.

As part of the purchase agreement with Monsanto, Bowman signed a "Technology Agreement" with the corporation, promising that he would not use the seeds produced by the first generation of crops for planting.

Despite knowing this arrangement, Bowman decided he would find some Roundup Ready seeds by selecting out Monsanto seeds from bulk seeds he purchased from another farmer, arguing Monsanto's patent was exhausted.

Patent Exhaustion Argument Uprooted

Just like many other types of products, soybeans and many other plants can be patented, and Monsanto's Roundup Ready soybeans are no exception.

Bowman argued that despite Monsanto holding a lawful patent on the seeds, once they sold the seeds to a farmer, under the patent exhaustion doctrine, their patent rights on those items terminate, allowing another farmer to plant the second-generation seeds as they see fit.

But the Supreme Court disagreed, with Justice Kagan explaining that the patent on an item like Roundup Ready seeds would be worthless if the purchaser "could make and sell endless copies," and the patent exhaustion doctrine does not entitle Bowman to make new copies of Monsanto's product without infringing on their patent rights.

Open Questions for New Crop of Cases

The Court's holding does not close off the growing question of how far GMO patents like Monsanto's Roundup Ready might extend, especially in more complex cases, reports USA Today.

Some possible cases where genetic modification patent suits are upcoming include:

Farmers whose plants are pollinated by GMO pollen via wind or bees,
Patents on DNA markers for breast cancer, and
Patented self-replicating bacteria that are repurposed.

Related Resources:

Supreme Court rules for Monsanto, says farmer violated genetically modified soybeans' patent (The Washington Post)
Unanimous x3: Monsanto's Magic Beans, Defalcation, and Towing (FindLaw's U.S. Supreme Court Blog)
Monsanto Wins Genetically Modified Seeds Appeal in Fed Circuit (FindLaw's Federal Circuit Blog)
Patent Infringement and Litigation (FindLaw)

'Bible Banners' OK at School Football Games, Texas Judge Rules

2013-05-10T19:34:01Z

In a surprising ruling on Wednesday, a Texas judge determined that cheerleaders displaying "Bible banners" at high school football games did not violate the First Amendment's Establishment Clause.

The ruling means cheerleaders in Kountze, Texas, can resume making banners with messages like "If God is with us, who can be against us?" after they trounced their school district in court, reports Reuters.

How does this ruling square against the U.S. Supreme Court's long history of separating church and state in schools?

What Is the Establishment Clause?

The First Amendment states, in part, that the government "shall make no law respecting an establishment of religion." This is known as the Establishment Clause.

Although this clause is interpreted in many ways, the U.S. Supreme Court has determined that a public law or policy does not violate the First Amendment if:

It has a secular purpose,
Its primary effect neither advances nor inhibits religion, and
It creates no excessive entanglement between church and state

Any government action which lacks one of those three elements is unconstitutional.

Texas Judge Rules Bible Banners Are Constitutional

In his official two-page order for summary judgment, Judge Steve Thomas ruled that the "Bible banners" did not create an establishment of religion in the small Texas school district.

Judge Thomas' order remains unclear as to how he came to his decision, citing no Texas court cases or U.S. Supreme Court precedent, which is odd considering that the Supreme Court has tackled similar issues before.

Religion in School Cases

As early as 1962, the U.S. Supreme Court ruled that it was unconstitutional for public schools to mandate an official school prayer.

Over the next 50 years, the High Court held that the following school-promoted religious expressions were unconstitutional:

Hanging prayer banners in school. In one case, an 8-by-4-foot school banner containing a prayer that included the phrase "Our Heavenly Father" was found to violate the Establishment Clause.
Holding a graduation ceremony at a church. There ceremony was accompanied by religious materials promoting a "school ministry," which made it unconstitutional.
Requiring the Ten Commandments to be displayed in class. A law requiring the posting of a copy of the Ten Commandments in each classroom was held to be a violation of the Establishment Clause, even if privately funded.

While the cheerleaders are rallying behind their victory, it remains to be seen whether the Kountze Independent School District will appeal the ruling based on the similarities between their case and past religion-in-school cases.

Related Resources:

Judge rules for cheerleaders in Bible banner suit (The Associated Press)
Graduation Prayer Allowed at Public School, 5th Circuit Rules (FindLaw's Decided)
Will NYC Schools Lose Their Religion? (FindLaw)
School Prayer and the Pledge of Allegiance: Background (FindLaw)

States Can Limit Public Records Access to Residents: Supreme Court

2013-05-01T17:33:01Z

In a blow to freedom of information advocates, the U.S. Supreme Court has ruled that state public-records access can be limited to residents of that state.

The unanimous decision upheld laws in Virginia and a handful of other states that release some public records only to in-state residents, reports the Los Angeles Times.

At the core of the decision are the Freedom of Information Act (FOIA) and the Constitution's privileges and immunities clause.

The Case: McBurney v. Young

FOIA generally gives anyone the right to access federal agency records, while the Privileges and Immunities Clause prevents a state from treating citizens of other states in a discriminatory manner.

In the case before the Supreme Court, Mark McBurney and Roger Hurlbert were challenging a Virginia law that restricts access of public records to in-state residents, reports the Times.

McBurney, a former Virginia resident, was seeking documents relating to a family dispute with his ex-wife. Hurlbert runs a California-based business that seeks real estate tax records on behalf of private clients.

They argued that Virginia's law violates the Privileges and Immunities Clause. Virginia citizens get access to public records via FOIA laws, while non-residents like McBurney and Hurlbert don't get that same access only because they're not Virginia residents.

But the court didn't buy the argument. Justice Samuel A. Alito Jr. said the Privileges and Immunities Clause doesn't extend a broad right to all information made available through freedom of information laws.

Potential Effects of the Ruling

For small business owners out there, watch out. The decision deals a setback to businesses and researchers who gather data across state lines.

"This is disappointing. We have a national information economy now, and all sorts of activities depend on data from all 50 states," Deepak Gupta, an attorney for the challengers, told the Times.

But there's a silver lining. Despite the ruling, Gupta said the trend has been for states to open their public records on an equal basis. Only two other states -- Arkansas and Tennessee -- decline to do so, he said. "It's not realistic for states to wall off their public information," he said.

So even though states don't have to give non-residents access to public records, states can and (most of them) are willing to do so.

Related Resources:

Justices say states can limit public records access (Reuters)
Birthright Citizenship in AZ and the 14th Amendment (FindLaw's Law and Daily Life)
ACLU Demands Waterboarding Docs, CIA Claims FOIA Request Exemption (FindLaw's U.S. Second Circuit Blog)
Justice Watch FOIA Request is 'No-Match' for Tax Return Exemption (FindLaw's D.C. Circuit Blog)

N.Y. v. Quarles and Miranda's Public Safety Exception

2013-04-23T19:49:01Z

In the Boston bombing case, authorities have claimed that the public safety exception to Miranda allowed them to question Dzhokhar Tsarnaev without first reading him his Miranda rights.

Tsarnaev's questioning by the High Value Interrogation Group was conducted days before the 19-year-old suspect was read his Miranda rights on Monday, The Huffington Post reports.

The public safety exception to the general rule of Miranda comes from the N.Y. v. Quarles case, and its use in the upcoming Tsanaev case may broaden its scope.

The General Rule of Miranda

Our "Miranda rights" stem from the Miranda v. Arizona decision, where the court determined that the dangers of police interrogation to your Fifth Amendment right against self-incrimination required some sort of protection.

If someone in custody is not read her Miranda rights, the testimony gained from any questioning by police cannot be used at trial, with some exceptions.

The Public Safety Exception: N.Y. v. Quarles

The general procedure of Miranda can be overlooked when there is reasonable belief, based on specific evidence, that public safety is in danger.

In N.Y. v. Quarles, the U.S. Supreme Court carved out an exception: Police officers could skip giving a suspect her Miranda warnings if there was an "immediate necessity" to resolve a dangerous situation.

The case in Quarles involved officers who noticed that the suspect had an empty gun holster and worryied that an accomplice or innocent might harm someone if they did not immediately locate the weapon.

The Supreme Court stated there could be two types of questions in this situation:

Questions necessary to resolve the danger to the public, and
Questions for the purpose of extracting incriminating evidence.

The public safety exception only allows officers to ask those questions "necessary to secure their own safety or the safety of the public."

Other Bombing Cases

In addition to Tsarnaev's case, the public safety exception to Miranda has also been raised in several other bombing cases. Examples include:

U.S. v. Hodge, a 6th Circuit case that determined that questions about a potential bomb are justified under the public safety exception, even without evidence that a third party might reach the bomb soon.

U.S. v. Khalil, a 2nd Circuit case in which a suspect was questioned before Miranda rights were read. The public safety exception applied to statements about whether he had planned to kill himself with a bomb.

U.S. v. Spoerke, an 11th Circuit case where police asked a hospitalized suspect about the composition of packages they suspected to be explosives, even when police had complete control of the crime scene.

Related Resources:

Why Should I Care That No One's Reading Dzhokhar Tsarnaev His Miranda Rights? (Slate)
The "Public Safety" Exception to Miranda (Federal Bureau of Investigation)
Right Decisions Made in Boston Bombing Venue, Miranda Delay (FindLaw)
'Shake and Bake' Meth Rumors Lead Cops to Bomb, Miranda Mistake? (FindLaw)

SCOTUS: Warrant Needed for DUI Blood Test, Maybe

2013-04-18T21:58:46Z

As we all know, laws are incredibly dynamic. Just a few months ago, we went over the possibility of forced blood draws of DUI suspects and how it's probably a bad idea to refuse a test. This week, the U.S. Supreme Court ruled that police usually have to get a search warrant before they can order blood tests for drunken-driving suspects.

The vote was 8-to-1, with Justice Clarence Thomas dissenting by his lonesome.

The Fouth Amendment protects your privacy by usually requiring police to get a search warrant before they can stop and search you without your consent. But there’s an exception for situations where there isn’t time to get a warrant because of an emergency.

So the question in Missouri v. McNeely was whether police officers can force you to take a blood test without a warrant when they suspect you of driving drunk.

Back in 1966, a U.S. Supreme Court decision said they could. It made an exception to the Fourth Amendment warrant requirement for DUI-related blood tests. The court’s rationale was that officers can’t spare the time to get a warrant because of how quickly alcohol leaves the bloodstream.

This week, the U.S. Supreme Court disagreed, and ruled that in most drunk driving cases, there is enough time to get a warrant. So now there isn’t an automatic exception to the Fourth Amendment warrant requirement for forced blood draws.

Justice Sotomayor, who wrote the majority opinion in the decision, said that in this day-and-age, police can get a warrant quickly by using their cellphones or by email, and that in most jurisdictions a magistrate is available day and night to grant a warrant request, NPR reports.

But the decision doesn’t mean that police always need a warrant. There’s still an exception for exigent circumstances. It’s just that “blood dissipating quickly” doesn’t automatically count as an emergency anymore. Emergency situations when an officer can’t follow the warrant requirement, Sotomayor wrote, will be decided on a “case-by-case” basis and later justified in court.

Chief Justice Roberts mostly agreed with the majority opinion but said the police need more practical guidance: “A police officer reading this court’s opinion would have no idea — no idea — what the Fourth Amendment requires of him.”

Justice Kennedy stressed the need for guidance to police officers, The New York Times reports. He thinks states should be able to take out the guesswork for officers by adopting rules and procedures that satisfy the Fourth Amendment in blood draw cases.

In dissent, Justice Thomas stated the natural dissipation of blood alcohol is an emergency that justifies warrant exemption.

For your purposes, know that in many cases, police officers will now need a warrant before forcing a suspected drunk driver to submit to a blood alcohol test.

Related Resources:

Forced Blood Tests Often Need Warrant, U.S. Court Says (Bloomberg News)
Upcoming Supreme Court Case Could Ban Forced Blood Draws (FindLaw LA DUI Blog)
What to Do When Pulled Over for a DUI: Three Tips (FindLaw LA DUI Blog)

U.S. Supreme Court Turns Down Case on Gun Law in New York

2013-04-16T19:38:18Z

After the Newtown tragedy, the gun law debate is charged with emotions, and conflict. Tougher gun laws have divided lower courts across the country. And yet, despite all the buzz on the topic, the Supreme Court isn't weighing in on a restrictive gun law in New York state.

If the justices had decided to hear the case, they would've taken on a major Second Amendment question: Can states bar or strictly limit the carrying of guns in public for self defense?

The court turned down a case about a New York State law that requires people to show a special need for self-protection in order to get a permit for carrying guns in public, The New York Times reports.

The United States Court of Appeals for the Second Circuit, in New York, recently upheld the law. The NRA really wanted the justices to hear the case, proclaiming the law "a de facto ban on carrying a handgun outside the home.".

Though the justices didn't take on this case, other cases asking the same question are likely to reach the court in a few months, reports The Times.

Back in 2008, the Supreme Court ruled in District of Columbia v. Heller that the Second Amendment protects an individual right to own guns. But that decision is mostly limited to protecting the right to keep guns at home for self-defense.

Other than forbidding the carrying of guns in "sensitive places such as schools," The Times reports, the right to carry guns in public isn't mentioned in Heller one way or another.

Since the Heller decision, only a few challenges to gun laws and gun prosecutions have succeeded in lower courts, The Times reports. One major exception is when the Seventh Circuit, in Chicago, struck down an Illinois law that banned carrying guns in public. That was just days before the Newtown shootings.

The Illinois decision is in direct conflict with the recent New York ruling. And New York isn't alone in its push for tougher gun laws. California, Hawaii, Maryland, Massachusetts and New Jersey have similar gun restrictions.

Given the lack of uniformity in gun laws across the nation, it won't be too surprising if the justices step in the next time a case like this comes their way.

Related Resources:

New York Gun Control: Supreme Court Rejects Challenge To Concealed Weapons Law (Huffington Post)
Gun Laws (FindLaw)
10 States With the Toughest Gun Laws (FindLaw Blotter)
Are Guns Allowed in Shopping Malls? (FindLaw Blotter)

New York, Occupy Wall Street Settle Books Lawsuit for $232k

2013-04-11T16:10:09Z

NYC librarians can quietly rejoice as Occupy Wall Street's "People's Library" settled a federal lawsuit with the city over the destruction of 2,800 books during a police raid on Zuccotti Park in late 2011.

The $232,000 Occupy settlement has raised a few eyebrows because of where the bulk of the money is going.

On Tuesday, the city agreed to pay $232,000 to settle the lawsuit brought by Occupy Wall Street's "People's Library" for the destruction of the thousands of books during a police raid in lower Manhattan, the New York Daily News reports.

However, only about $47,000 is going towards covering the costs of the books. The rest of the money, about $185,000, is going to the attorneys who brought the lawsuit last year.

Some might smirk at the appearance of a populist victory for Occupy Wall Street, since the bulk of the award is going to attorneys' fees. One of the plaintiffs' attorneys, Norman Siegel, retorted, "This is not just about the money. It is about holding the city accountable."

Attorneys' fees are always a hot-button issue. Lawyers can easily demand a 40% cut of any settlement you get, which seems staggering. However, many lawyers would say the workload quite literally fits the bill. Attorneys incur many overhead expenses associated with court filings, research and writing, access to legal research tools, and staffing costs, among others. This is especially true for large, high-profile cases like the Occupy Wall Street book destruction lawsuit.

As for Siegel's belief that this was about accountability, the city was technically required to take some accountability for The Great Book Massacre. A public shaming admission was part of the settlement since the city had to admit that it was "unfortunate" that the books had been destroyed, the Daily News reports. It's not the most dramatic admission, but it's pretty rare for the city to acknowledge aggressive tactics used by the police.

The more important feature of the books settlement is that it may have helped other lawsuits related to the Occupy Wall Street police raid gain momentum. Apart from the book settlement, NYC also agreed to shell out another $133,000 to settle two other lawsuits stemming from the raid, reports The Daily News. Those lawsuits deal with members of the protest movement evicted from the park after a lengthy encampment.

Alas, the real losers are the sullied books themselves. They were carted away by the Sanitation Department.

Related Resources:

NYC Settles With Occupy Wall Street (Huffington Post)
Don't Want to Hire a Lawyer? It Could Cost You (FindLaw's Insider)
Structured Settlements: Pro's and Cons (FindLaw)
Judge Rules Against Occupy Wall Street Camp (FindLaw's Law & Daily Life)

$2.5B in Damages Possible for Worst U.S. Hepatitis C Outbreak

2013-04-09T22:01:47Z

A Las Vegas jury is in deliberations over punitive damages totaling $2.5 billion against Nevada's largest health management organization and another provider for the worst U.S. outbreak of hepatitis C. The plaintiffs' attorneys, The Associated Press reports, want the stunning punitive damages to send a strong message to corporations and Wall Street: No more putting profits ahead of patient safety.

The jury last week awarded $24 million in compensatory damages -- but do the punitive damages go too far?

What are punitive damages?

Punitive damages, also known as exemplary damages, are awarded in cases of serious or malicious wrongdoing to punish the wrongdoer and, as in this case, deter others from behaving similarly.

The serious wrongdoing in this case involves an HMO referring patients to an endoscopy clinic run by a doctor who performed outpatient procedures using dirty needles, the AP reports. As a result, the worst hepatitis C outbreak in the U.S. More than 50,000 patients had to get tested for the infection. Especially troubling, it took three years for the outbreak to become public.

The big question for the jury is whether the HMO's actions rose above the level of negligence. Punitive damages can't be awarded for negligence alone. The conduct must have been willful, wanton, or reckless to constitute an intentional offense.

Here, the plaintiffs' attorneys are arguing that the HMO knew a doctor operating an outpatient endoscopy clinic was dangerous, but sent patients there anyway, the AP reports. Since specific intent is not required, the HMO did not need to know that the widespread transmission of hepatitis C was likely to result. Instead, the plaintiffs' attorneys only needed to prove that the HMO knew some kind of serious injury was a probable consequence of their sending patients to the clinic.

It is important to note that punitive damages cannot be awarded for wrongful acts performed in good faith. If the jury finds that the HMO genuinely did not know about the dangers of the endoscopy clinic, they cannot be punished with punitive damages.

The jury's out, but the court's still in

At the end of the day, even if the jury comes back with the astonishing $2.5 billion award, the amount could still be whittled down by the court. If the court believes that the $2.5 billion is excessive or unwarranted by the facts, it can remove punitive damages from the final judgment, or it can reduce the amount through a procedural process called remittitur.

Related Resources:

Nev. jury asked to award $2.5B for hepatitis C outbreak (USA Today)
1st J&J DePuy Hip Implant Award: $8.3M (FindLaw's Injured)
What Are Hedonic Damages? (FindLaw's Injured)
How Much Is Your Personal Injury Case Worth? (FindLaw's Injured)

ReDigi's Reselling of Digital Music Violates Copyrights: Court

2013-04-03T17:47:01Z

In a major music download lawsuit, Capitol Records has won a ruling against ReDigi Inc. claiming ReDigi violated the company's digital music copyrights.

A federal judge in New York found that ReDigi was not allowed to let users buy and sell "used" digital music files on its website, reports Reuters. These songs had originally been purchased through Apple's iTunes.

The lawsuit is significant, as several companies have been making headway in creating a marketplace for used and unwanted digital works like music and ebooks. This is similar to how second-hand record and book stores resell used physical copies of records and books, but with one critical difference.

ReDigi was formed in 2011 and branded itself as "the world's first pre-owned digital marketplace." On its website, users could trade used music tracks at a fraction of the cost after buying them legitimately through Apple's iTunes, reports Reuters. ReDigi made money by charging a commission on each sale.

In its lawsuit, Capitol complained that ReDigi violated its copyrights by operating its online store and allowing the unauthorized reproduction and distribution of its music. The federal judge ruled for Capitol, and found that ReDigi infringed on Capitol's rights by reproducing the songs in its sales.

To conduct a transaction, ReDigi reportedly had to create a "new phonorecord" to give to the buyer. At the same time, ReDigi destroyed the old phonorecord.

The court held that ReDigi's creation of a new phonorecord distinguished it from physical resale marketplaces like used bookstores. ReDigi could not simply pass on the exact same digital recording to the buyer, and by making the reproduction, it violated Capitol's reproduction rights.

The effect of the ruling may be that operators of digital re-sale marketplaces will have to obtain the approval of copyright holders before they can conduct business. So if ReDigi wants to allow the sale of a Katy Perry single, it would have to get Capitol's permission first, according to the court's ruling.

Lawyers for ReDigi, however, say they plan to appeal.

Related Resources:

A Setback for Resellers of Digital Products (The New York Times)
You Can't Resell Music Bought on iTunes, Federal Judge Rules (FindLaw's Courtside)
RIAA Demands ReDigi Stop Selling Used Digital Music (FindLaw's Technologist)
Reselling Books Online? Read Kirtsaeng First (FindLaw's Law and Daily Life)

Supreme Court: Drug Dogs Need Warrant to Sniff Suspect's Home

2013-03-27T17:51:01Z

The U.S. Supreme Court has ruled that police may not use drug dogs to sniff outside a suspect's home without a warrant.

In a 5-4 decision, the Court held that the use of drug sniffing dogs to investigate a home and its immediate surroundings constituted a "search" within the meaning of the Fourth Amendment, reports Reuters.

Therefore, police need probable cause and a search warrant to engage in such searches.

The Court generally limited the actions of a police officer at someone's home to approaching a home and knocking, if not armed with a warrant. Justices reasoned that any ordinary citizen may do this, so police officers should be allowed to do it too.

However, using drug-sniffing dogs outside the home to look for incriminating evidence was another story.

In the majority opinion, Justice Antonin Scalia wrote that for purposes of the Fourth Amendment, "the home is first among equals," writes Reuters.

The decision stemmed from a 2011 Florida case where police uncovered illegal drugs at a suspect's home. Police had received a tip that the resident was growing drugs inside the home, and a drug-sniffing dog confirmed the tip to an investigating officer.

After the dog's alert, the police officer later obtained a search warrant and raided the residence. The investigation did turn up illegal drugs.

However, the suspect's lawyer argued officers should have obtained a warrant first, before using the drug sniffing dog, and not after the dog alerted police to the presence of drugs. As a result, the Florida Supreme Court suppressed the drug evidence that was found in the search, reports Reuters.

The U.S. Supreme Court on Tuesday upheld that decision.

This is the Court's second ruling this term regarding drug-sniffing dogs. In the earlier case, the court upheld the use of a drug-sniffing dog during a traffic stop. The obvious difference in the two cases being where the search occurred: outside someone's home or on a public roadway.

Related Resources:

Drug dog sniff is unconstitutional search, Supreme Court rules (The Associated Press)
Puppies, Privacy, and Probable Cause: SCOTUS Goes to the Dogs (FindLaw's U.S. Supreme Court Blog)
SCOTUS Strikes Front Door Dog Sniff Based on Property, Not Privacy (FindLaw's U.S. Supreme Court Blog)

50 Years After Gideon, 5 Problems Facing Public Defenders

2013-03-19T20:26:01Z

Criminal defendants have the right to counsel, even if they can't afford one. That's a staple in the law. And it was solidified even further 50 years ago in the landmark decision Gideon v. Wainwright.

On March 18, 1963, the U.S. Supreme Court held that states must provide a court-appointed attorney for a criminal defendant who's charged with a serious offense, if the defendant lacks the resources to hire his own attorney.

But the post-Gideon road hasn't been an easy one. There are still many problems facing public defenders and the clients they represent. Here are five of the most pressing:

Not everyone is eligible. Eligibility for a public defender is typically determined through a showing of financial need, usually by producing financial documents.

Court-appointed counsel may not be as effective. Perhaps one of the biggest problems with the institution of public defenders is the quality of representation. While public defenders include some of the best and brightest law graduates, the limited resources available to the defenders (see below) make it tough for many to give the best and most effective legal counsel.

Funding constraints. Funding is a huge issue for public defenders nationwide. In some states, funding for public attorneys comes from local county governments, reports The Associated Press. And these days, many counties are strapped for cash. Some public defender offices are even shunning some cases due to lack of manpower and resources. So in a post-Gideon world, what good is a decree if it can't be followed through?

Questionable independence of counsel. In some states, public defenders report to elected officials. Where's the independence in that arrangement? Are the public defenders really acting in an impartial and unbiased manner, or are they furthering the interests of their employers?

Lack of standards. This comes back to the earlier idea that there is a lack of quality representation in some cases. According to the National Legal Aid & Defender Association, not all states have clear standards. As a result, the public defender system may be great in one county, but entirely different in another county.

In the 50 years since Gideon, the law might have been strengthened with regard to public defenders, but it's hard to say if the overall situation has really changed, as a law professor recently opined in The New York Times. While court administrators and lawmakers have made some efforts to address the lack of funding for public defenders, it's still hard to say whether these efforts will prove fruitful.

Related Resources:

You Have the Right to an Attorney: Gideon v. Wainwright at 50 (FindLaw's Supreme Court Blog)
Man Loses Right to an Attorney After Stabbing 3 Lawyers with Pencils (FindLaw's Strategist)
What the Sixth Amendment Guarantees (FindLaw)
How to Change Your Public Defender (FindLaw's Blotter)

J&J DePuy Hip Implant Lawsuit: Dissecting the 1st Verdict

2013-03-11T19:51:01Z

A California jury has awarded Loren "Bill" Kransky $8.3 million in what could be the first of thousands of verdicts against Johnson & Johnson (J&J) for injuries caused by a metal hip inplant, developed by the company's DePuy unit.

Jurors found that the health care products company was negligent in designing the ASR hip implant. Kransky's award includes $338,136 for his medical bills and $8 million for his physical pain and mental suffering, reports Bloomberg.

Kransky's lawyers had also sought $179 million in punitive damages. However, jurors found that J&J did properly warn consumers of the dangers with the hip implant, and did not award any punitive damages.

Some notable highlights from this decision include:

10,750. That's the number of lawsuits filed against J&J for the same problem with its metal hip implants, which were recalled in 2010. Kransky's case was the first to go to trial, and many of these lawsuits may follow.

No punitives this time. Though punitive damages were not awarded in Kransky's case, lawyers say they'll try again in the next case. Kransky's attorneys with the San Francisco firm of Walkup, Melodia, Kelly & Schoenberger had argued that J&J was well aware of the problems with the hips but continued to sell them to pocket a profit. In fact, it was alleged that J&J explored replacing the defective hips before scrapping those plans over the high costs involved; all the while it continued to sell the defective hips. At least one juror in the Kransky case indicated that he'd wanted punitive damages in light of the length of time it took J&J to correct the problems.

An appeal is possible. Given the thousands of potential trials that J&J could face, the company has already stated that it will appeal the decision. The company stands behind its product and maintains that it was not defectively made.

As for the future of J&J, some may wonder whether this lawsuit may bankrupt the company. The answer to that may depend upon how the other cases are resolved and whether punitive damages are awarded. The company is worth roughly $200 billion; it has set aside about $1 billion to help cover the cost of these lawsuits, The Associated Press reports.

Related Resources:

Damages awarded in J&J's DePuy hip implant case (The Associated Press)
1st J&J DePuy Hip Implant Award: $8.3M (FindLaw's Injured)
1st J&J DePuy Hip Replacement Lawsuit Goes to Trial (FindLaw's Injured)

Bev Stayart Loses Another Lawsuit Over Search Engine Results

2013-03-08T18:11:01Z

If you do an online search for "Bev Stayart," the search engine may suggest "bev stayart levitra." So the real Bev Stayart filed a lawsuit against Google and other search engines.

She wasn't pleased that her name is associated with a medication for erectile dysfunction. She sued Yahoo! and lost, and then filed a lawsuit against Google, claiming the search engine violated Wisconsin's privacy laws.

She's right that Wisconsin does have a right to privacy law. But did Google violate it when her name popped up in what's known as a "search assist"? Courts don't seem to think so.

Wisconsin's law prohibits the use of a name or picture of a person without written consent if it's used for advertising purposes. That's what Bev Stayart claimed Google was doing.

More specifically, she claimed Google's search assist was using her "fame" as a genealogy scholar and animal rights activist to sell erectile dysfunction drugs.

But the 7th U.S. Circuit Court of Appeals ruled that Stayart didn't prove anything with regard to her claim, and it upheld Google's motion to dismiss, according to TechDirt.

The first problem with her case is that Google isn't actually doing anything; it's just reporting the results of its search in a public forum.

Stayart also failed to prove that her name has any commercial value for Google, or any search engine for that matter. She also had no proof that Google is even using her name for any purpose at all except to communicate information.

That's an important point since using her name because of its newsworthiness or to further the public interest is an exception to the Wisconsin law.

Stayart made news by filing the lawsuit which, ironically, makes the "bev stayart levitra" term even more relevant.

Is it possible for someone to misappropriate and misuse your likeness for advertising? Absolutely. And if that happens, you generally have a cause of action. But search results and search assists don't seem to be part of that cause of action.

Plus, Bev Stayart isn't doing herself any favors by pursing lawsuits. As one judge noted, she would likely have had better success out of court -- for example, by hiring a firm to improve the search engine optimization on her name.

Related resources:

Beverly Stayart And The Art Of Search Engine Optimization (Popehat)
Can You 'Fix' Embarrassing Google Search Results? (FindLaw's Technologist)
Fed. Judge Orders Google to Remove Sites From Search Results (FindLaw's Decided)

Supreme Court Ruling in Student Loan Case May Discourage Lawsuits

2013-03-05T20:07:01Z

In a case involving a student loan collections dispute, the U.S. Supreme Court issued a ruling in favor of a debt collector, the ABA Journal reports.

This ruling, which awarded court costs to the debt collector, could potentially send a powerful message to the little guy: Don't sue your debt collector, no matter how much they allegedly harass you.

Consumers are supposedly protected under the Fair Debt Collection Practices Act. The Act prohibits creditors and debt collectors from pursuing a debtor unfairly or using unfair tactics.

A lawsuit was brought by Olivea Marx, a student debtor who claimed that General Revenue Corporation violated the Fair Debt Collection Practices Act by making harassing phone calls and threats to garnish her wages. They even sent a fax to her place of work, Courthouse News Service reports.

Despite these tactics, a trial court found that Marx did not make a strong case and the judge ordered her to pay $4,500 in court costs to General Revenue Corporation.

Marx eventually appealed her case to the U.S. Supreme Court. But last week, the Court sided with the debt collector and upheld the order for Marx to pay $4,500 in court costs.

Marx had argued that the fee-shifting provisions in the law said that she would only have to pay court costs if she'd brought the lawsuit in bad faith.

That argument, however, was shot down by the Court.

Student loans are a huge burden to many Americans. The scary truth about student loans is that they are very tough to pay off and even tougher to get rid of if you can't pay them off. For example, student loans aren't typically dischargeable in bankruptcy.

A student debtor can be subject to a variety of tactics by creditors and still not be in a position to fight back. As this case shows, if a student does fight back against allegedly unfair debt collection practices, she runs the risk of having to pay court costs if she loses her case.

Not exactly what you'd call a "win-win" situation for student debtors.

March 7, 2013 Editor's Note: This post has been updated to clarify that the trial court awarded court costs, not legal fees.

Related Resources:

The Little Guy Loses: SCOTUS Decides Clapper, Marx (FindLaw's U.S. Supreme Court Blog)
What Happens If You Default on Student Loans? (FindLaw's Law and Daily Life)
Browse Banking & Finance Lawyers by Location (FindLaw)
The FindLaw Student Loan Mini Guide (FindLaw - Free Download)