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.

The Lawletter Vol 39 No 4

Jim Witt, Senior Attorney, National Legal Research Group

     In a case involving the four plaintiffs' purchase of tickets to Super Bowl XLV (played on February 6, 2011; Packers 31, Steelers 25), the U.S. District Court for the Western District of Pennsylvania examined the causes of action asserted by the plaintiffs based upon the alleged failure of the National Football League ("NFL") and the Dallas Cowboys Football Club, Ltd., to provide a suitable facility for viewing the game. Pollock v. Nat'l Football League, No. 2:12cv130, 2013 WL 1102823 (W.D. Pa. Mar. 15, 2013), aff'd, No. 13-1987, 2014 WL 503640 (3d Cir. Feb. 10, 2014).

     In early January 2011, the plaintiffs submitted applications for Super Bowl XLV tickets through a ticket lottery with the Pittsburgh Steelers Sports, Inc., an agent of the NFL. Each application was accompanied by $800, and the NFL issued four tickets, with each ticket designating a specific seat in Dallas Cowboys Stadium in Arlington, Texas, and stating that it "'grants entry in the stadium and a spectator seat for the game.'" Id. at *1. The stadium's normal seating capacity was 80,000, and the defendant Dallas Cowboys Football Club, Ltd., desired to construct temporary seating to increase the stadium's seating capacity for the Super Bowl to more than 100,000. Construction of the temporary seating commenced prior to the submission of complete construction documents and the acquisition of occupancy permits (a permit was conditionally issued). Construction problems arose, and a number of issues remained unresolved as of the night before game day. Additionally, the defendants failed to commit sufficient resources to the undertaking so that an occupancy permit could be issued for every seat by game day, and the seating contractor failed to have adequate manpower available. As a result, the defendants failed to complete the construction of at least 2,400 seats.

     The plaintiffs were

(1) initially denied entry into the stadium, (2) required to spend hours traversing about and around the stadium in an effort to gain admission, (3) unable to obtain information about why they were unable to get in, (4) relocated to a section within the stadium that did not have seats and had an obstructed view, and (5) only able to watch the game without a seat either on monitors or with an obstructed view of the field.

The Lawletter Vol 39 No 4

Tim Snider, Senior Attorney, National Legal Research Group

     Some owners of patents that have little or no commercial value in and of themselves exploit those patents to promote litigation and thus force patentees who are practicing their inventions to compromise and settle infringement claims as an alternative to running up ruinous fees and costs to defend their patents. This practice has become known as "patent trolling." It is the bane of the patent bar.

     In Highmark, Inc. v. AllCare Health Management System, Inc., 134 S. Ct. 1744 (2014), the district court had entered summary judgment in favor of Highmark, which had sought a declaration that its patent was noninfringing. Highmark, Inc. v. AllCare Health Management System, Inc., 706 F. Supp. 2d 713 (N.D. Tex. 2007). Highmark then moved for an award of fees and costs under 35 U.S.C. § 285, arguing that the case was "exceptional."

     The district court granted Highmark's motion, reasoning that Allcare had engaged in a  pattern of "vexatious" and "deceitful" conduct throughout the litigation. Specifically, it found that Allcare had "pursued this suit as part of a bigger plan to identify companies potentially infringing the [patent in suit] under the guise of an informational survey, and then to force those companies to purchase a license of [U.S. Patent No. 5,301,105] under threat of litigation." Id. at 736-37. The court found that Allcare had "maintained infringement claims [against Highmark] well after such claims had been shown by its own experts to be without merit" and had "asserted defenses it and its attorneys knew to be frivolous." Id. at 737.

     In a subsequent opinion, the district court fixed the amount of the award in favor of Highmark at $4,694,727.40 in attorney's fees and $209,626.56 in expenses, in addition to $375,400.05 in expert fees. On appeal, 687 F.3d 1300 (Fed. Cir. 2012), the Federal Circuit affirmed in part and reversed in part. The Federal Circuit concluded that because the determination of whether a party's litigating position is "objectively baseless" is an issue of law, it was free to review the merits of the district court's judgment de novo.

     Justice Sotomayor, writing for a unanimous Court, disagreed and concluded that the review of the district court's determination under § 285 should instead be subject to review under the standard of abuse of discretion. That provision authorizes fee shifting, whereby a party's fees and costs may be awarded if the case is found to be "exceptional." She reasoned that as a matter of the sound administration of justice, the district court is better positioned to decide whether a case is exceptional, because it lives with the case over a prolonged period of time. As a practical matter, rarely will a district court's finding be reversed on appeal.