The Lawletter Vol 39 No 6

Fred Shackelford, Senior Attorney, National Legal Research Group

     When a jury awards different amounts of compensatory damages to multiple plaintiffs in the same case but also awards each plaintiff the same amount of punitive damages, can a court compare the compensatory damages awards to determine whether a punitive damages award is excessive? That was the issue before the Virginia Supreme Court in the case of Coalson v. Canchola, 287 Va. 242, 754 S.E.2d 525 (2014). There, an intoxicated motorist (Canchola) caused an accident that injured another driver (Coalson) and the other driver's passenger (Stemke). In an action by both injured parties against Canchola, the jury awarded  compensatory damages of $5,600 to Coalson and $14,000 to Stemke, in addition to awarding $100,000 in punitive damages to each of them. The trial court remitted Coalson's punitive damages award, noting a "significant disparity" between the plaintiffs' compensatory damages awards but identical awards of punitive damages. On appeal, the Coalson court first determined that punitive damages were warranted based on Canchola's egregious conduct, as follows:

The Lawletter Vol 39 No 5

Suzanne Bailey, Senior Attorney, National Legal Research Group

     Arizona is one of seven states that make it unlawful for a driver to be in actual physical  ontrol of a motor vehicle while there is a proscribed drug or "its metabolite" in the operator's body. Ariz. Rev. Stat. § 28-1381(A)(3). (The other six zero-tolerance jurisdictions are Delaware, Georgia, Indiana, Minnesota, Pennsylvania, and Utah. Joshua C. Snow, The Unconstitutional Prosecution of Controlled Substance Metabolites Under Utah Code § 41-6a-517, 2013 Utah L. Rev. OnLaw 195, 212 n.14 (2013).) In State ex rel. Montgomery v. Harris, 322 P.3d 160 (Ariz. 2014), the Supreme Court of Arizona was asked to determine whether the phrase "its metabolite" includes Carboxy-Tetrahydrocannabinol ("Carboxy-THC"), a nonimpairing metabolite of marijuana, which is a drug proscribed by statute. The court concluded that it does not.

     In Montgomery, the driver was stopped for speeding and making unsafe lane changes. After admitting to smoking some "weed" the night before, the driver voluntarily submitted to a blood test that revealed Carboxy-THC in his blood. He was charged with driving under the influence of a drug, in violation of section 28-1381(A)(1), and driving while a metabolite of a proscribed drug was in his body, in violation of section 28-1381(A)(3). The justice court dismissed the charge based on the presence of "its metabolite," and the State voluntarily dismissed the driving-under-the-influence charge. The superior court affirmed the justice court, but the court of appeals reversed, finding that the statute included the metabolite Carboxy-THC and that inclusion was not overbroad. State ex rel. Montgomery v. Harris ex rel. County of Maricopa, 301 P.3d 580 (Ariz. Ct. App. 2013). The state supreme court vacated the opinion of the court of appeals and affirmed the dismissal of the "its metabolite" charge, with one justice dissenting.

     The court found "its metabolite" to be ambiguous because it could mean all of a proscribed drug's metabolites, some of its metabolites, or only metabolites that cause impairment. The driver argued that the phrase referred to only Hydroxy-THC, the initial product of the metabolism of THC. The State insisted that the statute referred to all metabolites, including the nonimpairing Carboxy-THC, which was tested for. Significantly, the impairing Hydroxy-THC does not remain in the blood for very long and quickly converts to Carboxy-THC, which is why the State tests for Carboxy-THC but not for Hydroxy-THC. Carboxy-THC, on the other hand, can remain in the body for as many as 28 to 30 days after the ingestion of marijuana.

     Looking to the legislative history, which demonstrated an intent to prevent impaired driving, the court concluded that "its metabolite" is limited to metabolites capable of causing impairment. To hold otherwise could lead to the absurd result that a driver could be found guilty regardless of how long the metabolite remained in his or her body or whether it had an impairing effect. Furthermore, given that Arizona legalizes marijuana for medicinal purposes, the State's overinclusive reading could criminalize legitimate use after the impairing effects have worn off. Finally, a broad reading of "its metabolite" could allow the prosecution of an individual who drives after ingesting a legal substance that shares a nonimpairing metabolite with a proscribed substance.

The Lawletter Vol 39 No 5

Steve Friedman, Senior Attorney, National Legal Research Group

     A law enforcement officer is entitled to qualified immunity for his or her unconstitutional actions if "the right at issue was 'clearly established' at the time of defendant's alleged misconduct." Pearson v. Callahan, 555 U.S. 223, 232 (2009). "It is clearly established that citizens have a Fourth Amendment right to be free from unreasonable seizures accomplished by excessive force." Valladares v. Cordero, 552 F.3d 384, 388 (4th Cir. 2009).  But what is "unreasonable"?

     As summarized by a federal district court:

In assessing claims of excessive force under the Fourth Amendment, the court must apply a standard of "objective reasonableness." Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Specifically, the court must determine "whether a reasonable officer in the same circumstances would have concluded that a threat existed justifying the particular use of force."  Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir. 1996) (citing Graham, 490 U.S. at 396-97, 109 S. Ct. 1865).  This fact‑intensive balancing test must be applied in light of the fact that "police officers are often forced to make split‑second judgments—in circumstances that are tense, uncertain, and rapidly evolving— about the amount of force that is necessary in a particular situation."  Graham, 490 U.S. at 397, 109 S. Ct. 1865.

Sloan v. Dulak, 868 F. Supp. 2d 535, 540 (W.D. Va. 2012).

     Due to the fact-sensitive nature of the analysis, the existence or absence of analogous case law is crucial. In a recent decision, the U.S. Supreme Court provided yet another ruling on a police shooting incident to help in that regard. See Plumhoff v. Rickard, 134 S. Ct. 2012 (2014).

     Around midnight on July 18, 2004, a West Memphis, Arkansas, police officer pulled over a vehicle driven by Rickard. As is relevant here, Rickard sped away and thus began a high-speed chase involving multiple police vehicles. Eventually, Rickard's car spun out into a parking lot and collided with one of the police cruisers. A couple of officers exited their cruisers, guns drawn, and ordered Rickard to exit his vehicle. Ignoring the officers' orders, Rickard continued his attempt to escape. Although one of the officers fired three shots into Rickard's vehicle, Rickard was nonetheless able to escape in his vehicle. However, other officers then fired a total of 12 shots toward Rickard's vehicle as it drove away. Shortly thereafter, Rickard crashed into a building and died from some combination of gunshot wounds and the collision.

     Rickard's daughter then brought a civil suit pursuant to 42 U.S.C. § 1983 against several of the police officers, alleging excessive force. The officers moved for summary judgment based on qualified immunity. The district court denied the officers' motion, holding that their conduct violated clearly established Fourth Amendment law. The officers appealed but the Sixth Circuit affirmed. The U.S. Supreme Court granted the officers' petition for writ of certiorari.

The Lawletter Vol 39 No 4

Brett Turner, Senior Attorney, National Legal Research Group

     When a husband and wife get divorced, can the court equitably divide automobiles owned by the parties' children?

     This question arose in the Mississippi case of Terrell v. Terrell, 133 So. 3d 833 (Miss. Ct. App. 2013), cert. denied, 133 So. 3d 818 (Miss. 2014). The parties to that case were Robert and Mary. Robert and Mary had a daughter, Catherine. During the marriage, Robert purchased a car for Catherine, titling the car in Catherine's name. The trial court held that the car was marital property, apparently because it had been purchased with marital funds, and treated it as part of Mary's share of the marital estate.

     On appeal, the Mississippi Court of Appeals reversed:

     We agree that the vehicle should not have been deemed a part of the marital estate. While it was purchased during the course of the marriage, it is not marital property, nor is it separate property. Rather, it was a gift from Robert and Mary to Catherine, who was a third-party recipient. Catherine has retained physical custody of the vehicle and has been the legal title holder of the vehicle since it was purchased. It was not an asset of Robert or Mary either jointly or separately. Accordingly, we reverse and render this issue specifically for the elimination of Catherine's automobile from the marital estate.

Id. at 839 (& 17); see also In re Marriage of Sullins, 715 N.W.2d 242 (Iowa 2006) (error to treat car as marital property, where it had been purchased for daughter and titled in her name).

     The court reached the correct result. Definitions of "marital property" vary, but the term can generally be defined as property acquired by the parties during the marriage. Property owned by a third person falls outside this definition, because it was never acquired by a party to the marriage. A child of the marriage is just as much a third party as is any other nonspouse.

     It is worth noting that the car in Terrell was not separate property, either. Separate property is generally property acquired by a party before the marriage, property acquired by a party after the date of classification (where it is before the date of the property division hearing), and property acquired by a party during the marriage by various specific methods (e.g., gift or inheritance). The car in Terrell falls outside these definitions, again because it was not acquired by a party.

     In a divorce case, therefore, assets owned by nonparties are neither marital nor separate property. They fall into a third category, third-party property, which is not subject to division by the court. See generally 1 Brett R. Turner, Equitable Distribution of Property § 5:14 (3d ed. 2005).

     What seems to have misled the trial court in Terrell was that the car had been acquired with marital funds. But it is not uncommon for parties to a marriage to acquire property with marital funds, and then give that property away. This occurs every time the parties buy a nonparty a Christmas or birthday present. Property given away, with the consent of both spouses, is no longer marital. There is no suggestion in Terrell that either party objected to the gift of the car to Catherine.