Man Attacks His Lawyer In Court With Feces – He never saw it coming.

January 27th, 2009

January 27, 2009 


SAN DIEGOA mistrial was declared Monday when a home-invasion robbery suspect smeared human feces on his attorney’s face then threw more at the jury. 

Weusi McGowan, 37, was upset because San Diego Superior Court Judge Jeffrey Fraser refused to remove Deputy Alternate Public Defender Jeffrey Martin from the case, prosecutor Christopher Lawson said. 

At the mid-morning break, McGowan produced a plastic baggie filled with fecal matter and spread it on Martin’s hair and face, then flung the excrement toward the jury box, hitting the briefcase of juror No. 9 but missing the juror himself. 

“That juror didn’t even see it coming,” Lawson said. 

The prosecutor said the defendant was compliant after the outburst and was taken into custody without further incident. 

After lunch, Fraser dismissed the jury, telling them McGowan would have to get a new lawyer and that his trial would be delayed. 

The judge scheduled a status conference for Feb. 9 and raised the defendant’s bail from $250,000 to $1 million, finding he is a danger to the community. 

Lawson said McGowan originally became upset last week when he claimed one of the jurors saw him in shackles as he entered the courtroom. Fraser dismissed all jurors who saw the defendant in shackles, the prosecutor said. 

“The judge had been very fair,” Lawson said. “All jurors who saw it were dismissed.” 

Fraser had also denied McGowan’s attempt to represent himself, saying the request was untimely, Lawson said. 

The prosecutor said the defendant had previously wiped human feces on himself and was examined by doctors to ensure he was mentally competent to stand trial. 

McGowan is charged with kidnapping for robbery, assault with a deadly weapon and other counts and could face assault charges in connection with the attack on his attorney and jury, Lawson said. 

The prosecutor said the defendant hit a man with a rock in a sock as the victim came out of his home to investigate a commotion on Oct. 17, 2007. 

McGowan allegedly ransacked the man’s apartment then stole some of the victim’s belongings and took off in the victim’s car. 

He was arrested 20 minutes later, Lawson said. 

U.S. Supreme Court upholds pat down search merely on belief suspect is armed and dangerous

January 26th, 2009

Arizona v. Johnson (pdf), a win for police on the Fourth Amendment issue of whether a pat-down search is permissible when the officer has reason to believe a suspect is armed and dangerous, but no cause to believe a crime has been or is being committed

No. 07–1122. Argued December 9, 2008—Decided January 26, 2009
In Terry v. Ohio, 392 U. S. 1, this Court held that a “stop and frisk”may be conducted without violating the Fourth Amendment’s ban onunreasonable searches and seizures if two conditions are met. First, the investigatory stop (temporary detention) must be lawful, a requirement met in an on-the-street encounter when a police officer reasonably suspects that the person apprehended is committing or has committed a crime. Second, to proceed from a stop to a frisk(patdown for weapons), the officer must reasonably suspect that theperson stopped is armed and dangerous. For the duration of a traffic stop, the Court recently confirmed, a police officer effectively seizes “everyone in the vehicle,” the driver and all passengers. Brendlin v. California, 551 U. S. 249, 255. While patrolling near a Tucson neighborhood associated with theCrips gang, police officers serving on Arizona’s gang task forcestopped an automobile for a vehicular infraction warranting a citation. At the time of the stop, the officers had no reason to suspect the car’s occupants of criminal activity. Officer Trevizo attended to respondent Johnson, the back-seat passenger, whose behavior andclothing caused Trevizo to question him. After learning that Johnson was from a town with a Crips gang and had been in prison, Trevizo asked him get out of the car in order to question him further, out ofthe hearing of the front-seat passenger, about his gang affiliation.Because she suspected that he was armed, she patted him down forsafety when he exited the car. During the patdown, she felt the butt of a gun. At that point, Johnson began to struggle, and Trevizo handcuffed him. Johnson was charged with, inter alia, possession of a weapon by a prohibited possessor. The trial court denied his motion to suppress the evidence, concluding that the stop was lawful andthat Trevizo had cause to suspect Johnson was armed and dangerous. 2 Johnson was convicted. The Arizona Court of Appeals reversed. While recognizing that Johnson was lawfully seized, the court foundthat, prior to the frisk, the detention had evolved into a consensualconversation about his gang affiliation. Trevizo, the court therefore concluded, had no right to pat Johnson down even if she had reason to suspect he was armed and dangerous. The Arizona Supreme Court denied review.
Held: Officer Trevizo’s patdown of Johnson did not violate the FourthAmendment’s prohibition on unreasonable searches and seizures. Pp. 5–9.
(a) Terry established that, in an investigatory stop based on reasonably grounded suspicion of criminal activity, the police must bepositioned to act instantly if they have reasonable cause to suspect that the persons temporarily detained are armed and dangerous. 392
U. S., at 24. Because a limited search of outer clothing for weaponsserves to protect both the officer and the public, a patdown is constitutional. Id., at 23–24, 27, 30–31. Traffic stops, which “resemble, induration and atmosphere, the kind of brief detention authorized in Terry,” Berkemer v. McCarty, 468 U. S. 420, 439, n. 29, are “especiallyfraught with danger to police officers,” Michigan v. Long, 463 U. S. 1032, 1047, who may minimize the risk of harm by exercising “ ‘unquestioned command of the situation,’ ” Maryland v. Wilson, 519 U. S. 408, 414. Three decisions cumulatively portray Terry’s application in a traffic-stop setting. In Pennsylvania v. Mimms, 434 U. S. 106 (per curiam), the Court held that “once a motor vehicle has been lawfullydetained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment,” id., at 111, n. 6, because the government’s “legitimate and weighty” interest in officer safety outweighs the “de minimis” additional intrusion of requiring a driver, already lawfully stopped, to exit the vehicle, id., at 110–111. Citing Terry, the Court further held that a driver, once outside the stopped vehicle, may be patted down for weapons if the officer reasonably concludes that the driver might bearmed and dangerous. 434 U. S., at 112. Wilson, 519 U. S., at 413, held that the Mimms rule applies to passengers as well as drivers,based on “the same weighty interest in officer safety.” Brendlin, 551
U. S., at 263, held that a passenger is seized, just as the driver is, “from the moment [a car stopped by the police comes] to a halt on theside of the road.” A passenger’s motivation to use violence during the stop to prevent apprehension for a crime more grave than a trafficviolation is just as great as that of the driver. 519 U. S., at 414. And as “the passengers are already stopped by virtue of the stop of thevehicle,” id., at 413–414, “the additional intrusion on the passenger is minimal,” id., at 415. Pp. 5–7.

(b) The Arizona Court of Appeals recognized that, initially, Johnson was lawfully detained incident to the legitimate stop of the vehicle in which he was a passenger, but concluded that once Officer Trevizo began questioning him on a matter unrelated to the traffic stop, patdown authority ceased to exist, absent reasonable suspicion thatJohnson had engaged, or was about to engage, in criminal activity.The court portrayed the interrogation as consensual, and, Johnson emphasizes, Trevizo testified that Johnson could have refused to exit the vehicle and to submit to the patdown. But Trevizo also testified that she never advised Johnson he did not have to answer her questions or otherwise cooperate with her. A lawful roadside stop beginswhen a vehicle is pulled over for investigation of a traffic violation.The temporary seizure of driver and passengers ordinarily continues,and remains reasonable, for the duration of the stop. Normally, thestop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave. An officer’s inquiries into matters unrelated to the justification for the traffic stop do not convert the encounter into something other than a lawful seizure, so long as the inquiries do not measurably extend thestop’s duration. See Muehler v. Mena, 544 U. S. 93, 100–101. A reasonable passenger would understand that during the time a car islawfully stopped, he or she is not free to terminate the encounterwith the police and move about at will. Nothing occurred in this casethat would have conveyed to Johnson that, prior to the frisk, the traffic stop had ended or that he was otherwise free “to depart without police permission.” Brendlin, 551 U. S., at 257. Trevizo was not required by the Fourth Amendment to give Johnson an opportunity to depart without first ensuring that, in so doing, she was not permitting a dangerous person to get behind her. Pp. 7–9.
217 Ariz. 58, 170 P. 3d 667, reversed and remanded.
GINSBURG, J., delivered the opinion for a unanimous Court

Supreme Court Upholds Prosecutorial Immunity for Official Actions

January 26th, 2009

Van de Kamp v. Goldstein (pdf), a strong endorsement of prosecutorial immunity from liability for official actions.

Cite as: 555 U. S. ____ (2009)


No. 07–854. Argued November 5, 2008—Decided January 26, 2009
Respondent Goldstein was released from a California prison after hefiled a successful federal habeas petition alleging that his murder conviction depended, in critical part, on the false testimony of a jailhouse informant (Fink), who had received reduced sentences for providing prosecutors with favorable testimony in other cases; that prosecutors knew, but failed to give his attorney, this potential impeachment information; and that, among other things, that failure had led to his erroneous conviction. Once released, Goldstein filed this suit under 42 U. S. C. §1983, asserting the prosecution violatedits constitutional duty to communicate impeachment information, see Giglio v. United States, 405 U. S. 150, 154, due to the failure of petitioners, supervisory prosecutors, to properly train or supervise prosecutors or to establish an information system containing potential impeachment material about informants. Claiming absolute immunity, petitioners asked the District Court to dismiss the complaint, but thecourt declined, finding that the conduct was “administrative,” not“prosecutorial,” and hence fell outside the scope of an absolute immunity claim. The Ninth Circuit, on interlocutory appeal, affirmed.
Held: Petitioners are entitled to absolute immunity in respect to Goldstein’s supervision, training, and information-system management claims. Pp. 3–12.
(a) Prosecutors are absolutely immune from liability in §1983 suitsbrought against prosecutorial actions that are “intimately associatedwith the judicial phase of the criminal process,” Imbler v. Pachtman, 424 U. S. 409, 428, 430, because of “concern that harassment by unfounded litigation” could both “cause a deflection of the prosecutor’s energies from his public duties” and lead him to “shade his decisions instead of exercising the independence of judgment required by his public trust,” id., at 423. However, absolute immunity may not applywhen a prosecutor is not acting as “an officer of the court,” but is instead engaged in, say, investigative or administrative tasks. Id., at 431, n. 33. To decide whether absolute immunity attaches to a particular prosecutorial activity, one must take account of Imbler’s “functional” considerations. The fact that one constitutional duty in Imbler was positive (the duty to supply “information relevant to thedefense”) rather than negative (the duty not to “use . . . perjured testimony”) was not critical to the finding of absolute immunity. Pp. 3–
(b) Although Goldstein challenges administrative procedures, they are procedures that are directly connected with a trial’s conduct. A prosecutor’s error in a specific criminal trial constitutes an essentialelement of the plaintiff’s claim. The obligations here are thus unlike administrative duties concerning, e.g., workplace hiring. Moreover, they necessarily require legal knowledge and the exercise of relateddiscretion, e.g., in determining what information should be includedin training, supervision, or information-system management. Given these features, absolute immunity must follow. Pp. 6–12.
(1) Had Goldstein brought a suit directly attacking supervisory prosecutors’ actions related to an individual trial, instead of one involving administration, all the prosecutors would have enjoyed absolute immunity under Imbler. Their behavior, individually or separately, would have involved “[p]reparation . . . for . . . trial,” 424 U. S.,at 431, n. 33, and would have been “intimately associated with the judicial phase of the criminal process,” id., at 430. The only difference between Imbler and the hypothetical, i.e., that a supervisor or colleague might be liable instead of the trial prosecutor, is not critical. Pp. 7–8.
(2) Just as supervisory prosecutors are immune in a suit directly attacking their actions in an individual trial, they are immune here. The fact that the office’s general supervision and training methodsare at issue is not a critical difference for present purposes. The relevant management tasks concern how and when to make impeachment information available at trial, and, thus, are directly connectedwith a prosecutor’s basic trial advocacy duties. In terms of Imbler’s functional concerns, a suit claiming that a supervisor made a mistakedirectly related to a particular trial and one claiming that a supervisor trained and supervised inadequately seem very much alike. The type of “faulty training” claim here rests in part on a consequent error by an individual prosecutor in the midst of trial. If, as Imbler says, the threat of damages liability for such an error could lead a trial prosecutor to take account of that risk when making trialrelated decisions, so, too, could the threat of more widespread liabil ity throughout the office lead both that prosecutor and other office prosecutors to take account of such a risk. Because better training or supervision might prevent most prosecutorial errors at trial, permission to bring suit here would grant criminal defendants permission tobring claims for other trial-related training or supervisory failings. Further, such suits could “pose substantial danger of liability even tothe honest prosecutor.” Imbler, 425 U. S., at 425. And defendingprosecutorial decisions, often years later, could impose “unique and intolerable burdens upon a prosecutor responsible annually for hundreds of indictments and trials.” Id., at 425–426. Permitting this suit to go forward would also create practical anomalies. A trial prosecutor would remain immune for intentional misconduct, whileher supervisor might be liable for negligent training or supervision. And the ease with which a plaintiff could restyle a complaint charging trial failure to one charging a training or supervision failure would eviscerate Imbler. Pp. 8–11.
(3) The differences between an information management system and training or supervision do not require a different outcome, for the critical element of any information system is the information it contains. Deciding what to include and what not to include is little different from making similar decisions regarding training, for it requires knowledge of the law. Moreover, were this claim allowed, a court would have to review the office’s legal judgments, not simply about whether to have an information system but also about what kind of system is appropriate, and whether an appropriate systemwould have included Giglio-related information about one particular kind of informant. Such decisions—whether made before or duringtrial—are “intimately associated with the judicial phase of the criminal process,” Imbler, supra, at 430, and all Imbler’s functional considerations apply. Pp. 11–12.
481 F. 3d 1170, reversed and remanded.
BREYER, J., delivered the opinion for a unanimous Court

U.S. Supreme Court protects employees who report sexual discrimination claims under Title VII retaliation rules

January 26th, 2009

Jan. 26, 2009 

Employees who cooperate with an internal investigation of sexual harassment are protected from retaliation under Title VII of the Civil Rights Act, the Supreme Court held Monday. 

The case—see: Crawford v. Metropolitan Government of Nashville and Davidson Cty.- involved a school system employee who alleges she was terminated because she agreed to be interviewed about allegations of sexual harassment made by several employees against a director. The school system took no action against the director, but fired Ms. Crawford, alleging embezzlement and drug use, in early 2003. 

Ms. Crawford denied the charges and filed suit under Title VII, but a U.S. district court and a three-judge panel of the U.S. 6th Circuit Court of Appeals granted the school system summary judgment on the basis that Ms. Crawford had not initiated any complaint before the internal investigation. After the appeals court’s 2006 decision, Ms. Crawford appealed to the high court, which heard oral arguments in the case last October. 

A unanimous Supreme Court reversed the appeals court. Associate Justice David Souter wrote for the court: “If it were clear law that an employee who reported discrimination in answering an employer’s questions could be penalized with no remedy, prudent employees would have good reason to keep quiet about Title VII offenses against themselves or against others.” Associate Justices Samuel Alito and Clarence Thomas filed a concurring opinion. 


Proposed Video Lottery Terminals may not generate the same revenue as real Slot Machines

January 25th, 2009

   Proposed Video Lottery Terminals may not generate the same revenue as real Slot Machines –may not be the answer
By LawReader senior editor stan billingsley jan. 24, 2009
House Speaker Greg Stumbo has introduced House Bill 158 to allow video terminal gambling at state race tracks.  These may not be as popular as real slot machines in a casino format placed at locations which will draw traffic.

Representative Arnold Simpson of Covington has suggested that the provision of this bill to limit their placement only at race tracks is not to his liking and he wishes to permit the construction of a casino in the Covington area on the River in order to entice out of state customers from Cincinnati, Ohio.

The full text of Stumbo’s pending bill may be read at: Stumbo Bill

    The Video Lottery Terminals, proposed in HB 158,  appear to be based on a lottery system where each player at a terminal plays against other players then in the casino and also playing.  This means that the jackpots are based on a different scheme than regular slot machines.   We have seen such a system in a casino in Florida and were of the opinion that they weren’t as popular with the customers as regular slot machines. It this is true in Kentucky, then the Video Terminal aspect of the Stumbo bill may not generate the income predicted for casinos with real slot machines.

Video Lottery Terminal or VLT is a gaming machine that allows gamblers to bet on the outcome of a video game.
A VLT is similar to a slot machine, except that it is connected to a centralized computer system that determines the outcome of each wager using a random number generator. Although the outcome of each wager is random, VLT operators are able to program in advance the total amount and number of payouts that its central computer system will allow at its connected VLTs. In this manner, VLTs can be thought of as computerized scratch-off lottery tickets.
The payouts offered by VLTs are invariably poor. For example, in Las Vegas most slot machines offer a theoretical payout of approximately 98 cents for every dollar they take in (98%). By contrast, Canadian VLTs pay out 74% of their intake, on average. In Saskatchewan, the VLTs pay out 93% of total cash in.
Most US jurisdictions do not allow VLTs and those that do have attracted the same criticism the Canadian provinces have. However, some non-players have expressed tolerance for the machines.
In certain jurisdictions, VLTs are known as Video Gaming Devices (VGD) or Video Slot Machines. Most VLTs are multi-game devices, allowing the players to select, from an on-screen menu, the game(s) they wish to play. They are also known as poker machines and fruit machines in some areas.
   If the Kentucky Legislature is serious about raising revenue then it is within their power to simply adopt legislation authorizing casino type gambling and avoid the Video Terminal concept.

    Greg Stumbo, while Attorney General, issued a legal opinion that opines that a constitutional amendment is not necessary to authorize gambling in Kentucky.   This opinion is based on a decision of the states highest court and is detailed in the following article.  We believe that Stumbo had it right the first time and is making a mistake by seeking approval of VLT’s instead of going for slot machines and a traditional casino format.  

The following article discusses Stumbo’s previous AG’s opinion, which shows a strong legal basis for the legislature to be able to introduce Casino style gambling without trying to shoehorn  VLT’s into the “lottery” exception.

His AG opinion is based on the premises that the 1891 constitutional prohibition “against gambling” in Kentucky was only targeted at “lotteries” and all current prohibitions against gambling are statutory in nature.  Therefore the Legislature may authorize casinos if they chose to do so.

There is case law that supports the conclusion that Kentucky does not need a Constitutional Amendment to permit the licensing of Casino Gambling
By LawReader Senior Editor Stan Billingsley – Feb. 7, 2008
Gov. Beshear made his support for a constitutional referendum to allow casino gambling a mainstay of his successful campaign for Governor in 2007.  That issue as advanced by Gov. Beshear is based on the assumption that a constitutional amendment is necessary to permit the legislature to authorize and license casino gambling in Kentucky.
The belief that a constitutional amendment is required is based on an interpretation of Section 226 of the Ky. Constitution which has language that from l891 until l992 prohibited the establishment of “lotteries” in Kentucky.  In l992 the public adopted a constitutional amendment that permits a state operated lottery.
Section 226 of the Kentucky constitution did not outlaw other forms of gambling in the 1891 section or in the amended section adopted in l995.
There is no specific provision of the Ky. Constitution that prohibits gambling in general, or that specifically prohibits other types of gambling including casino type gambling. 
If gambling was prohibited by the constitution we would ask, how is it that pari-mutual betting has been historically allowed?  The obvious answer is that pari-mutual betting at race tracks is a statutory creation and that casino gambling can also be authorized by an act of the legislature.
In fact the legislature has through the adoption of KRS Chapter 528 outlawed many forms of gambling.  These statutory enactments can just as easily be amended by the legislature to permit casino style gambling.
The statutes that outlaw casino style gambling are found at:
KRS 528.010 Definitions for chapter.
KRS 528.020 Promoting gambling in the first degree.
KRS 528.030 Promoting gambling in the second degree.
KRS 528.040 Conspiracy to promote gambling.
KRS 528.070 Permitting gambling.
KRS 528.080 Possession of gambling device.
Conclusion: Since the legislature can regulate gambling under its police powers, it can authorize gambling under the same authority.
   In 2005, then Attorney General Greg Stumbo was asked by State Senator Ed Worley (D)-Richmond to review this very issue.
That opinion has been largely neglected, we believe, because the public perception, which was wrong, strongly concluded that the constitution clearly prohibited casino gambling.  It one takes the time to actually read Section 226, that conclusion is debunked.
Perhaps it is time to pull up that AG opinion (OAG 05-003) and really read what it says.
We have done so, and we find the arguments persuasive, and well founded in the law.
The opinion notes that when the l891 constitution was adopted that many forms of gambling were occurring throughout Kentucky.  There was however a long history of abusive lottery schemes in which the prize was often not given out even though the members of the public had bought a lottery ticket.  These abusive unregulated lottery schemes were the target of Section 226.  
The opinion concludes, “The framers of the Constitution clearly rejected the inclusion of other forms of gaming within the prohibition of “lotteries”, as defined above, when Ky. Const. Section 226 was passed. Hence, “lotteries” are constitutionally distinct from other forms of gambling.”
The opinion cites a ruling of the old Court of Appeals (then the highest court in Kentucky) handed down in l931 which demonstrates that the prohibition of other forms of gambling were considered by the Constitutional Convention of l891 and rejected. In that opinion the court upheld the legality of pari-mutual betting on horse races and found it was one of the other forms of gambling not prohibited by Section 226:
Opinion OAG 05-003:  “The legal issue of the scope of the prohibition in Section 226 was not squarely presented to Kentucky’s Court of Appeals until 1931 in the case of Commonwealth v. Kentucky Jockey Club, Inc., 238 Ky 739, 38 SW2d 987 (1931).
The Court drew directly upon the Debates of the Constitutional Convention and found:
At the time section 226 was being considered in the convention that framed the Constitution, an amendment was proposed forbidding every species of gambling. Volume 1. Debates of Constitutional Convention p.1172. The delegate who proposed the amendment was asked whether his proposition embraced the prohibition of betting upon the speed of horses, to which he responded that it was his purpose to forbid all species of gambling and all games of chance in every conceivable form. He argued that all gambling was equally wrong, and that it was unfair to denounce gambling in the form of a lottery and to countenance it in other forms, such as betting upon horse races, and the like. The delegate from Lexington argued that it was not the appropriate place to deal with pooling privileges upon race courses, and other forms of gambling, because lotteries theretofore had been licensed by the Legislature, and the object of the pending section was not to deal with any other species of gambling, but to prohibit the Legislature from granting licenses to lotteries. The amendment was rejected, thus indicating that it was the intention of the Convention not to include in section 226 anything but lotteries of the type familiar at the time.” Id. at 993. “
     The Attorney General’s Opinion makes a compelling and we think convincing argument that the state is not prohibited by any constitutional provision of the current constitution from adopting legislation permitted the licensing and regulation of casino gambling in the Commonwealth of Kentucky.
     David Williams, Majority Leader of the Kentucky State Senate is against a referendum to allow the public consider casino gambling. He says he will not prevent a vote on the issue but suggests that the issue will not garner enough votes in the senate.
That may well be the case.   Such opposition would almost surely derail any attempts at statutory legislation to allow casino gambling.  Nevertherless, the issue we address is that the legislature could remedy the current revenue shortfall by adoption of such legislation and permit this new form of revenue to begin rolling in during the next fiscal year.
(Below we provide a news article providing a synopsis of  OAG 05-003, and below that is a full text of OAG 05-003, and below that are the current provisions of KRS Chapter 528 that demonstrate the only laws that prohibit the establishment of casino gambling.)
News Article from March 21, 2005:
Attorney General Stumbo Finds Legislature Can Expand Gambling in Kentucky Without a Constitutional Amendment
FRANKFORT, KY (March 21, 2005) – Attorney General Greg Stumbo today released the (see below), requested by State Senator Ed Worley (D-Richmond.)
Worley requested the Attorney General’s opinion on the following question: Within the Constitution of Kentucky, are there limitations or prohibitions on the authority of the General Assembly to enact statutory language authorizing the expansion of gambling in Kentucky?
In his response, Attorney General Stumbo cited Section 226(3) of the Kentucky Constitution which prohibits the General Assembly from sanctioning a “lottery”, but stated that there is no constitutional prohibition which limits the General Assembly from authorizing and regulating other forms of gambling.
In his opinion request, Worley also asked Stumbo if the Kentucky Constitution distinguished between the forms of expanded gambling which would restrict the General Assembly from expanding gambling into any specific areas. Stumbo’s opinion states that only lotteries are a prohibited form of gambling under the Kentucky Constitution.
Language from the Debates of the Constitutional Convention of 1890, and later court cases, clearly indicates that horse racing and other forms of gambling are not unconstitutional, Stumbo found.
Four prior opinions of the Office of the Attorney General interpret the prohibitions placed on “lotteries”, “gift enterprises” and “schemes for similar purpose” to include other types of gambling. However, Attorney General Stumbo said, “It was time for a fresh and reasoned review of case law and the origins of gambling restrictions upheld in our Constitution in light of the questions posed by Senator Worley. To the extent that past opinions of this Office are in conflict with this opinion, they are overruled.”
“There are a lot of questions as to the Constitutional restrictions,” said Senator Worley. “I posed the question to the Attorney General from an informational standpoint. I believe that all of the members of the General Assembly, as well as the public, need to have an understanding as to what our Constitution permits so we can make a decision on how we want to proceed on this issue.”

Attorney General’s Opinion issued in 2005 by then A.G. Greg Stumbo
OAG 05-003
March 21, 2005
Subject: Constitutional limits upon the authority of the General Assembly to pass statutes which expand gambling in Kentucky.
Requested by: Mr. Ed Worley, State Senator, 34th Senatorial District
Written by: Robert S. Jones, Assistant Attorney General
Syllabus: Section 226(3) of the Kentucky Constitution prohibits “lotteries” or “schemes” which distribute money or other things of value purely by chance among persons who have paid for the chance to share in the distribution. Other forms of gambling were intentionally excluded from this prohibition.
Statutes construed: Ky. Const. Section 226(3)
OAGs cited: 80-409, 92-127, 93-58, 99-8
Opinion of the Attorney General
Senator Ed Worley requests the Attorney General’s opinion on the following questions:
1) Within the Constitution of Kentucky, are there limitations or prohibitions on the authority of the General Assembly to enact statutory language authorizing the expansion of gambling in Kentucky?
Answer: Qualified Yes. Ky. Const. Section 226(3) would prohibit the General Assembly from sanctioning a “lottery”, defined as a species of gambling, and described as a scheme for the distribution of prizes or things of value, purely by lot or by chance, among persons who have paid, or agree to pay, a valuable consideration, for the chance to share in the distribution, except as specifically authorized by Ky. Const. Section 226(1) and (2). There is no constitutional prohibition which limits the General Assembly from authorizing and regulating other forms of gambling.
2) Further, does the Kentucky Constitution distinguish between the forms of expanded gambling to restrict the General Assembly in any specific area of such expansion?
Answer: Yes. The framers of the Constitution clearly rejected the inclusion of other forms of gaming within the prohibition of “lotteries”, as defined above, when Ky. Const. Section 226 was passed. Hence, “lotteries” are constitutionally distinct from other forms of gambling.
These questions touch directly upon issues addressed by four prior opinions of the Office of the Attorney General, 80-409, 92-127, 93-058 & 99-8, which interpret the prohibition Ky. Const. Section 226(3) places upon “lotteries”, “gift enterprises”, and “schemes for similar purpose”. Because those opinions differ materially as to the breath of this constitutional limitation upon the General Assembly’s authority to enact various gambling laws, analysis of inconsistent opinions of past Attorneys General is of no benefit. Instead, a fresh and reasoned review of the origins of Section 226(3) and the case law which interprets the section is necessary to answer the questions posed.
The history of Section 226 of the Kentucky Constitution

Historically, the prohibition of lotteries was seen as ethically and morally distinct from other forms of gambling. In 1850 the U.S. Supreme Court wrote:
Experience has shown that the common forms of gambling are comparatively innocuous when placed in contrast with the widespread pestilence of lotteries. The former are confined to a few persons and places, but the lottery infests the whole community; it enters every dwelling; it reaches every class; it preys upon the hard earnings of the poor; it plunders the ignorant and simple.”
Phalen v. Virginia, 8 Howard 163, 12 L Ed 1030, 1033 (1850).
Thirty years later, the Court reflected on that statement and said:
They [lotteries] are a species of gambling, and wrong in their influences. They disturb the checks and balances of a well-ordered community. Society built on such a foundation would almost of necessity bring forth a population of speculators and gamblers, living on the expectation of what, ‘by the casting of lots, or by lot, chance, or otherwise,’ might be ‘awarded’ to them from the accumulations of others.
Stone v. Mississippi, 101 US 814, 818, 25 L Ed 1079 (1880).
In the early 1890s, when the current Kentucky Constitution was drafted and adopted, it is clear that the drafter’s understanding of a lottery was a system in which players wager that a particular number will be selected in a random drawing. At the time it was still the practice of the Commonwealth “to grant privilege to certain gentlemen to raise money by lottery…” This authority was conferred by the “act of 1838, and the amendatory act of 1869.”
Commonwealth v. Douglas, 100 Ky. 116, 24 S.W. 233 (1893).
In Douglas, supra, the Court of Appeals of Kentucky considered a challenge under the “contracts clause” of the U.S. Constitution to Section 226 of the newly written Kentucky Constitution by those who had purchased licenses to operate lotteries. The breath of the prohibition was not in question since the license holders clearly operated “lotteries” as the term was contemplated in the law of the time; however, language within the opinion provides a contemporaneous view of the people and practices Section 226 was intended to address:
We have, for instance, at this day, men confined in the state penitentiary for setting up and carrying on gambling shops whose tendencies are not much more demoralizing, if any, than the licensed lottery operator, who goes free under the protection of the law. Id. at 234.
Hence, the operation of “gambling shops” was seen as distinct from the gaming operated by the licensed lottery operator.
The legal issue of the scope of the prohibition in Section 226 was not squarely presented to Kentucky’s Court of Appeals until 1931 in the case of Commonwealth v. Kentucky Jockey Club, Inc., 238 Ky 739, 38 SW2d 987 (1931).
The Court drew directly upon the Debates of the Constitutional Convention and found:
At the time section 226 was being considered in the convention that framed the Constitution, an amendment was proposed forbidding every species of gambling. Volume 1. Debates of Constitutional Convention p.1172. The delegate who proposed the amendment was asked whether his proposition embraced the prohibition of betting upon the speed of horses, to which he responded that it was his purpose to forbid all species of gambling and all games of chance in every conceivable form. He argued that all gambling was equally wrong, and that it was unfair to denounce gambling in the form of a lottery and to countenance it in other forms, such as betting upon horse races, and the like. The delegate from Lexington argued that it was not the appropriate place to deal with pooling privileges upon race courses, and other forms of gambling, because lotteries theretofore had been licensed by the Legislature, and the object of the pending section was not to deal with any other species of gambling, but to prohibit the Legislature from granting licenses to lotteries. The amendment was rejected, thus indicating that it was the intention of the Convention not to include in section 226 anything but lotteries of the type familiar at the time.” Id. at 993.
The Court approached the issue by adopting a textbook definition of “lottery”:
A lottery, it is said, is a species of gambling, described as a scheme for the distribution of prizes or things of value, by lot or by chance, among persons who have paid, or agree to pay, a valuable consideration, for the chance to share in the distribution… Id. at 992.
Consequently, the Court refused to strike down laws allowing pari-mutuel betting on horse races. In doing so the parameters of legislative authority were delineated as follows:
That all forms of gambling are evil and characterized by vicious tendencies does not alter the fact of the individuality of each type. We are unable… to declare that the section of the Constitution condemning lotteries was understood by the people who adopted it as itself outlawing betting upon horse races, by the pari-mutual system, or the other forms of betting. It was then understood, as has been the accepted opinion, that the subjects of betting and gaming were within the absolute control of the police power, possessed by the legislature. It is the duty and function of the legislature to discern and correct evils, and evils within that power are not limited to some definite injury to public safety or morals, but embrace the removal of obstacles to a greater public welfare. (emphasis added)
Id. at 994.
Subsequent Case law
Since the Kentucky Jockey Club opinion, Kentucky’s highest court has addressed questions compelling it to define “lottery” under Section 226 on four occasions. In two of those cases, Worden v. City of Louisville, 279 Ky. 712, 131 S.W.2d 923 (1939), and Commonwealth v. Malco-Memphis Theatres, Inc., 293 Ky. 531, 169 S.W.2d 596 (1943), the court faced factual situations which clearly implicated the conduct of a “lottery” as that term was traditionally defined. The Worden opinion addresses a tailor shop which provided chances to win a weekly drawing. The Malco-Memphis Theatres case dealt with a ticket drawing to win a prize. In both, the court relied on the definition of a “lottery” identified in the Kentucky Jockey Club opinion and held the practices violated the law. In fact, the defense in Malco-Memphis Theatres conceded the drawings were lotteries, and argued instead that the participants had not paid consideration to enter insofar as the cost of the tickets did not exceed the normal cost for services.
The most recent case to address the lottery provision within Section 226 is Otto v. Kosofsky, Ky., 476 S.W.2d 626 (1971). That opinion addressed the constitutionality of a statute known as the “Bingo Licensing Act.” The court found that bingo fit the traditional definition of a “lottery” as envisioned by the drafters. But, despite the basic holding which reiterated the definition of lottery as “consisting of a scheme for distribution of prizes or things of value purely by lot or chance,” the opinion also cites to an ambiguous quote from A. B. Long Music Company v. Commonwealth, Ky., 429 S.W.2d 391 (1968), which could be interpreted as defining a “lottery” more broadly. A. B. Long Music Company is the sole opinion in the line of Kentucky precedent on the issue which suggests that the term “lottery” might be interpreted as a generic term which extended beyond the intention expressed by the drafters of the Constitution.
In A. B. Long Music Company, supra, the Commonwealth had impounded pinball machines pursuant to KRS 436.280. Impoundment was the enforcement mechanism for KRS 436.230 which prohibited “setting up, keeping, managing, operating or conducting a keno bank, faro bank or other machine or contrivance used in betting.” These statutes clearly authorized the actions taken by the Commonwealth and ultimately constitute the legal basis for the decision. Nevertheless, in dicta, the court addressed the definition of the word “lottery” as used within Section 226. Citing to a number of out of state cases, the court referenced the fact that bingo, beano, keno and lotto are simply variations upon the same game which fall under the generic term “lottery.” Indeed, this is true, but this fact is not relevant to the determination that the pinball machines were a “machine or contrivance used in betting” thereby supporting the State enforcement action under KRS Chapter 436.
Since the A. B. Long Music Company opinion fails to account for existing legal precedent surrounding Section 226, the only wisdom which should be drawn from the opinion is that regardless of its name, if the game meets the traditional test of a “lottery”, as bingo, beano, keno and lotto do, then those games would be forbidden under Section 226 as “similar schemes.” It is this language which the Otto, supra, opinion draws upon in finding that the Bingo Licensing Act was unconstitutional, and not the language which addresses the possibility that the term “lottery” may encompass a meaning beyond that intended by the framers of the Constitution.
Although more than 65 years have passed since the Kentucky Jockey Club, Inc. opinion was entered, it still provides the most thoughtful and relevant analysis of the questions at hand. Case law on the issue since that time, and up to the most recent published decision in 1971, has continued to recognize that the prohibition of “lotteries” under Section 226(3) of the Kentucky Constitution applies only to that subcategory of gaming traditionally identified as “lotteries”. Such “lotteries” are generally characterized by the purchase of a card or ticket which entitles the holder to a prize should, purely by chance or lot, the numbers, letters, or symbols on the ticket match a winning combination. These types of games are known by many names, bingo, beano, keno and lotto, as well as in slang references such as “numbers games”, yet they each carry the recognizable indicia of a “lottery” and therefore fall within the prohibition in Section 226(3).
Opinions of past Attorneys General have attempted to define “lottery” by analyzing the nature of “chance” employed by various games by weighing the relative significance of skill or luck necessary to win. However, the case law is clear; to be a “lottery” the winner must be chosen “purely by chance.” Other OAG opinions have questioned whether the traditional definition of a “lottery” will be sufficient the carry out the intention of the framers as new games are invented using new technology. Yet, this has not been a problem over the past 113 years. Moreover, the debates between the framers of the Constitution lay bare their intention to address a specific and easily identifiable problem, the sale of lottery licenses, when they drafted Section 226. They were aware that existing statutory laws made other types of gambling illegal when they rejected the amendment offered to broaden the lottery prohibition to all forms of gambling. It is therefore reasonable to conclude the framers of the Constitution were confident gambling would continue to be effectively regulated by statute, and further that statutory law, which is inherently more flexible than the dictates of a constitution, was the best way to regulate other forms of gambling in the future.
To the extent that past OAG opinions are in conflict with this opinion they are overruled.


Livingston, Carlisle and Trigg Counties will open new courthouses in the next 18 months.

January 25th, 2009

The new $6.8 million Livingston County Justice Center is expected to open Feb. 2 to replace a facility built in 1845, one of the oldest in the state.

The $10.5 million Trigg County Judicial Center is expected to open in June after two years of construction on the site of the demolished old courthouse.
Carlisle County expects to have a new courthouse by summer 2010, replacing a building that burned down in December 2007.

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Kentucky Court of Appeals issues 24 important decisions on Jan. 23.

January 24th, 2009

LawReader subscribers may view these decisions with synopsis at: COURT OF APPEALS DECISIONS FOR JAN. 23, 2009   – Non-subscribers may sign up at:  SIGN UP – PRICING
inadequate findings of fact to support child visitation limitation-physical health of parent can be considered
release of 911 call on open records request
child custody presumption – court can consider smoking around child by parent in determining best interest of child
alj is finder of facts-substantial evidence supports finding
11.42 motion
worker’s compensation-appellant died and attorney did not inform court-jurisdiction of court of appeals when action  is abated by death of party- procedure for revival of claim-dismissal of Boards order        
appeal improper as appellee was not party to underlying civil action
harmless error regarding statement by judge and deputy
review standard for restitution order of trial court
probable cause to make traffic stop of suspect      
jurisdiction for custody and visitation may be different than jurisdiction for child support – the theory of ‘divisible divorce’
60.02 motion-11.42 motion-recusal of judge-error for court to allow prosecutor to be witness-evidentiary hearing required on remand
unprofessional conduct by attorneys in briefs- trafficking in drugs includes exchange without monetary consideration



January 23rd, 2009

Jan. 23, 2009
The Court of Appeals in a Madison County case  (Joshua Spivey v. Commonwealth) sent a warning about unprofessional and inappropriate language in appellate briefs submitted in the  case.  The appellate decision was issued on Jan. 23, 2009. It is posted as Case No. 16 on LawReader. Members can access the case at:  COURT OF APPEALS DECISIONS FOR JAN. 23, 2009 .

The opinion was authored by Chief Court of Appeals Judge Sara Combs. Judge Wine concurred, and Senior Judge Buckingham concurred only in the result.
The court was upset over the unnecessary language in which the attorneys critized the other.
The opinion didn’t specify which attorney said what, but they listed the names of the attorneys at the end of the opinion as follows:

Gene Lewter
Department of Public Advocacy
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky    (The Attorney General does not usually write briefs and his name is included due to his status as the Attorney General.)
James C. Maxson
Assistant Attorney General
Frankfort, Kentucky
Chief Judge Sara Combs wrote:
“The briefs of both counsel contain numerous examples of unprofessional and inappropriate language; in some instances, counsel engaged in personal attacks on one another.
In another, a crude parody involving opposing counsel’s name was inserted. In one instance, counsel referred to an opposing argument as “silly.”
One of the briefs also contains unnecessary and extraneous attempts at metaphors that do not constitute arguments of law.
Sarcastic language and insidious innuendoes have no place in any legal document – be it briefs of counsel or opinions of a court. Since both sides have acted in pari delicto, we have declined to strike the briefs or to protract this appeal by ordering the filing of new briefs that conform with the basic tenets of professionalism.
However, we trust that future admonition along these lines will never again be necessary”

Popular Louisville attorney Margaret “Maggie” Keane, has won election as Vice-President of the Kentucky Bar Association.

January 23rd, 2009

Results certified this week show that Keane beat Manchester lawyer Scott Madden in the race for vice president by a vote of 2,400 to 2,084.  The election places Keane in line to be the next President of the KBA.

Madden an attorney from Manchester, Kentucky, made an impressive run for the office considering the advantage shared by lawyers from large law firms and large cities.
Keane’s candidacy drew attention after attorney Ann Oldfather, her adversary in a strip-search case involving a Bullitt County McDonald’s restaurant, sent a letter to about 600 lawyers last month. It alleged that Keane knowingly misled the court in that case when she said all documents concerning prior strip searches at McDonald’s stores had been turned over to the plaintiff’s legal team.
Keane declined to respond at the time, other than to note that the trial judge in the case summarily denied Oldfather’s motions for sanctions against Keane and other lawyers for McDonald’s.  Several prominent attorneys came to the defense of Keane and pointed out in letters to the editor of the Courier Journal that the trial court had also heard claims against Oldfather about withholding of discovery.  The court refused to find that either party had withheld discovery.

Ky. Supreme Court releases 36 important decisions for January.

January 22nd, 2009

If you aren’t staying current in Kentucky appellate court rulings you will quickly fall behind on the state of the law.

The Kentucky Supreme Court issued 36 important rulings on Jan. 22, 2009.
The following LawReader keywords show the diversity of these decisions.

Three kba attorney discipline rulings

no attorney fee for collecting unpaid worker’s compensation award

no offset to employer for pension benefits received by disabled worker who took early retirement     
Worker’s compensation claim denied- video surveillance upheld
worker’s compensation-harmful changes from work-related injury-physicians use of legal terms does not determine legal effect-work related trauma-preexisting condition  aroused

worker’s compensation- employer has burden to prove defenses to liability-worker entitled to be compensated for entire impairment caused by injury
interlocutory appeal from condemnation action

duty of trustee-notice to beneficiaries- not court’s duty to rewrite statute – a trustee has a duty to inform contingent beneficiaries of their potential interests – late notice better than no notice   

right of warning order attorney to be awarded a fee even against indigent-court’s duty to award fee and assist in collection

duty to warn independent contractors of asbestos exposure- clarification of prior rulings-slip and fall theories not adopted-summary judgment

contested annexation  city of prospect vs. louisville metro government
subrogation rights- duty not to interfere with insurer’s ability to protect itself – statute of limitations- insurer may not avoid policy if insured fails to bring suit

wrongful discharge claims re: union organizing activities preempted from state action by NLRA   

columbus day legal holiday –fact that courts stay open does not affect tolling of appeal time on legal holiday

arbitration agreement must require arbitration in Kentucky – interlocutory relief allowed when court has no jurisdiction to enforce out of state arbitration award

trial procedural errors –separation of trials-404-B testimony harmless error-jury strikes-failure to object

opening the door- commonwealth withholding of discovery –serious physical injury proven by medical records-

closing argument-send a message-palpable error-bifurcated trial requires restatement of objection at each portion of trial to preserve error-pfo conviction reversed

amendment of indictment improper in this case

combination instruction-proof of impairment in driving under the influence
jurisdiction of supreme court to hear commuted death sentence – 11.42 appeal procedure after direct appeal – definition of Rule- Retroactive application of rules

reading from citation-narration of video tape-playing two video tapes of chase not cumulative-definition of reasonable doubt   

exception to miranda- prosecutorial misconduct-proportionality of 50 year sentence – proof allowed in guilt phase vs. sentencing phase-inference allowed in pfo finding

error for police officer to interpret audio tape for jury when he was not party to call

judges contact with juror –hearsay not error as it was merely cumulative –duty to advise court of action requested when making an objection
court adopts old chief rule – defendant has right to stipulate to prior felony and commonwealth may not provide details of prior offense

double jeopardy –jury instructions unclear

when jeopardy attaches – double jeopardy-mistrial standards-palpable error review

continuance-palpable error review

double jeopardy of acts of sexual abuse – intent may be inferred

Members may access these cases at: KY. SUPREME COURT DECISIONS FOR JANUARY 22, 2009   

Non-members may sign up and access all decisions and synopsis go to: SIGN UP – PRICING 

Ky. Ct. of Appeals Overrules Seizure of Internet Gambling Domains

January 21st, 2009

Details have emerged on the ruling handed down late Tuesday by the Kentucky Court of Appeals which overturned a decision by the Franklin Circuit Court to seize and possibly confiscate 141 online gambling domains belonging to owners throughout the world.
The Interactive Media Entertainment and Gaming Association (iMEGA), one of the main challengers to the Kentucky state government’s “unprecedented attempt to interfere with the freedom of the Internet”, has issued a statement giving details of the findings of the panel of three Appellate judges who considered the case.
In a 2-to-1 majority opinion, the court ruled against Judge Thomas D. Wingate (No. 2008-CA-002000-OA), by blocking the seizure orders issued by the Franklin circuit court judge for the domain names, all related to Internet gambling (Commonwealth of Kentucky, Franklin Circuit Court, Division II, 08-CI-1409).
Judge Michelle M. Keller, in her majority opinion, found that Internet domain names for online gambling Web sites were not illegal “gambling devices” by Kentucky law, as had been claimed by attorneys representing the Commonwealth, in their attempt to seize control of the names from their owners. Judge Keller stated that while the Kentucky legislature could have chosen to include Internet domain names in its gambling devices law, it had not, therefore the Commonwealth could not rightfully proceed with its forfeiture action.

“Regardless of our view as the advisability of regulating or crimininalizing Internet gambling sites, the General Assembly has not seen fit to amend KRS 528.010(4) so as to bring domain names within the definition of gambling devices,” the judge found. “Neither we, nor the Justice Cabinet, are free to add to the statutory definition. If domain names cannot be considered gambling devices, Chapter 528 simply does not give the circuit court jurisdiction over them.
“It stretches credulity to conclude that a series of numbers, or Internet address, can be said to constitute a “machine or any mechanical or other device…designed and manufactured primarily for use in connection with gambling,” Judge Keller wrote. “We are thus convinced that the trial court clearly erred in concluding that the domain names can be construed to be gambling devices.”
Judge Jeff S. Taylor, also writing for the majority, added that the Commonwealth could not seek a civil forfeiture based on a criminal statute when there had been no criminal proceeding. Since there had been no criminal proceeding or conviction against any of the Internet domain name owners, the Commonwealth could not take control of their property.
Judge Michael Caperton, in his dissenting opinion, wrote that the Internet domain names were one part of a larger mechanism for gambling, which included computers and Internet service, and thus, in his opinion, met the definition of a “gambling device” under Kentucky law.
“This decision confirms why we went the way we did with this suit,” said Jon L. Fleischaker, attorney for iMEGA and managing partner at Dinsmore & Shohl in Louisville. “We knew when we brought this to the Court of Appeals, that we would get justice for iMEGA and the domain names in Kentucky.”
Fleischaker had argued in a December 12, 2008 hearing before the Court of Appeals that the Internet domain names were no more than “billboards” for the Web sites, and not mechanisms for gambling. Fleischaker had also argued that the Commonwealth’s attorneys could not try to fashion a civil law remedy with a criminal statue to justify the seizure of the domain names.
“We are very happy with the court’s ruling today,” said Joe Brennan Jr., chairman of iMEGA, an Internet trade association in Washington, DC. “The judges clearly agreed with our interpretation of the law, and thankfully, this reverses what would have been a terrible precedent for our country and the Internet.”
The Court in its decision declined to review additional arguments submitted by the Interactive Gaming Council (IGC) and attorneys representing, also seeking to have the domain name seizures blocked.
“We are humbled by this decision and by the overwhelming support received from Internet businesses and free speech organizations everywhere,” said Jeff Ifrah, an attorney acting as part of a team representing the Interactive Gaming Council. “The Court of Appeals has now corrected a fundamental misunderstanding by the trial judge in this proceeding of the nature of the Internet and the legality of online poker in Kentucky. This is a very important decision for anyone doing business on the Internet.”
John Pappas, Executive Director of the Poker Players Alliance said: “This is a tremendous victory for Internet freedom and the rights of Kentucky residents who enjoy playing online poker.
“We are pleased that the appeals court has forcefully reversed Judge Wingate’s earlier ruling and confirmed many of the arguments that have been raised in opposition to the seizure effort. The Court of Appeals has agreed with the PPA’s position that Judge Wingate did not have jurisdiction to issue the order that he entered against these domains and that Secretary Brown has no legitimate right to deprive the citizens of Kentucky of the legal right to play poker online.”
Jay Blanton, a spokesman for Kentucky Governor Steve Beshear, said the state did not receive the ruling until late Tuesday. “We want to take some time to review it. No decision has yet been made on whether to appeal it to the state Supreme Court,” Blanton said.
Rich Muny, Kentucky state director for the Poker Players Alliance, said he hoped Beshear and Justice Cabinet Secretary Brown “will abandon this misguided effort and focus new energies into regulation and taxation of Internet poker.”
He added: “Rather than spending hard-to-find dollars on this case, the governor could actually turn this into a much-needed new revenue stream for the commonwealth.”
Beshear campaigned in 2007 to expand gambling in the state by opening casinos, but he contended that some of the most popular online gambling sites are bad for the state.

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Supreme Court lets the Child Online Porn Protection Act die quietly.

January 21st, 2009

 A 13-year legal drive to shield children from pornography on the Internet ended in defeat today when the Supreme Court let the Child Online Protection Act die quietly.

The measure, which never went into effect, made it a crime to put sexually explicit material on a website for commercial gain unless the sponsor used some means, such as requiring a credit card, to keep out minors.

It was repeatedly blocked from taking effect on free-speech grounds by judges, including by the Supreme Court in 2004. The justices had also voided an earlier, even broader law passed in 1996 that prohibited “indecency” on the Web.

The outcome preserves the Web as a wide-open forum for free expression. It also leaves to parents the duty to install software filters if they wish to block pornography on their home computers.

The judges in Philadelphia who struck down the law last year called these filters an “equally effective” means of protecting children from pornography on the Web.

The American Civil Liberties Union said the challenged law would crimp free speech on the Web for adults and would not shield children, because at least half of the sexually explicit websites are outside the United States.

The Supreme Court considered the appeal in two closed-door meetings in recent weeks and said today it had been turned down without comment. The case was Mukasey vs. ACLU.

Supreme Court rules Saucier Government Offiical qualified immunity test not mandatory in every case

January 21st, 2009

Jan. 21, 2009

The US Supreme Court Wednesday ruled unanimously in Pearson v. Callahan that the test for whether a government official is entitled to qualified immunity, established by the Court in 2001 in Saucier v. Katz, is no longer mandatory in every case.


Under Saucier, a judge first had to decide whether a government official’s action violated the Constitution and only if there was a violation, then whether the constitutional right was “clearly established” at the time of the violation.


In this case, police officers entered respondents’ home without a warrant and conducted a search that respondents allege was in violation of the Fourth Amendment. In his opinion for the Court, Justice Samuel Alito wrote:


We now hold that the Saucier procedure should not be regarded as an inflexible requirement and that petitioners are entitled to qualified immunity on the ground that it was not clearly established at the time of the search that their conduct was unconstitutional.


The ruling overturns the decision of the US Court of Appeals for the Tenth Circuit, which held that petitioners were not entitled to qualified immunity.

Supreme Court Sides With Student in Sex-Bias Case – Title IX does not bar Section 1983 claims

January 21st, 2009


The U.S. Supreme Court ruled unanimously Wednesday Jan. 21, 2009 that Title IX does not bar victims of sex discrimination in schools from pursuing claims under an older federal civil rights law.


The decision is a victory for the parents of a Massachusetts student who claimed that school officials failed to adequately respond to sexual harassment of their daughter—then in kindergarten—by a 3rd-grade boy on her bus.


The parents may now pursue a claim under the federal statute known as Section 1983, a Reconstruction-era law that allows plaintiffs to sue any individual who violates their civil rights under color of law. In some cases, the statute may offer wider protections than Title IX of the Education Amendments of 1972, which bars sex discrimination.

No. 07–1125




[January 21, 2009]                               
                                                     To read full text go to: decision

No. 07–1125. Argued December 2, 2008—Decided January 21, 2009
Petitioners filed suit against respondents, the local school district’s governing board and superintendent, alleging that their response to allegations of sexual harassment of petitioners’ daughter by an olderstudent was inadequate, raising claims under, inter alia, Title IX of the Education Amendments of 1972, 20 U. S. C. §1681(a), and 42
U. S. C. §1983 for violation of the Equal Protection Clause of theFourteenth Amendment. Among its rulings, the District Court dis-missed the §1983 claim. The First Circuit affirmed, holding that,under this Court’s precedents, Title IX’s implied private remedy wassufficiently comprehensive to preclude the use of §1983 to advanceconstitutional claims.
1. Title IX does not preclude a §1983 action alleging unconstitu-tional gender discrimination in schools. Pp. 4–12.
(a) In Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U. S. 1; Smith v. Robinson, 468 U. S. 992; and Rancho Palos Verdes v. Abrams, 544 U. S. 113, this Court found that particular statutory enactments precluded §1983 claims where it wasestablished that Congress intended the statute’s remedial scheme to“be the exclusive avenue through which a plaintiff may assert [such] claims,” Smith, supra, at 1009. In determining whether Congress in-tended for a subsequent statute to preclude the enforcement of a fed-eral right under §1983, the Court has placed primary emphasis onthe nature and extent of that statute’s remedial scheme. See Sea Clammers, 453 U. S., at 20. Where the §1983 claim alleges a consti-tutional violation, a lack of congressional intent to preclude may alsobe inferred from a comparison of the rights and protections of the

other statute and those existing under the Constitution. Pp. 4–7.
(b) In the absence of a comprehensive remedial scheme compara-ble to those at issue in Sea Clammers, Smith, and Rancho Palos Verdes, and in light of the divergent coverage of Title IX and the Equal Protection Clause, it must be concluded that Title IX was not meant to be an exclusive mechanism for addressing gender discrimi-nation in schools, or a substitute for §1983 suits as a means of enforc-ing constitutional rights. Pp. 7–12.
(i) Title IX’s only express enforcement mechanism, 20 U. S. C. §1682, is an administrative procedure resulting in the withdrawal of federal funding from noncompliant institutions. This Court has also recognized an implied private right of action, Cannon v. University of Chicago, 441 U. S. 677, 717, for which both injunctive relief and damages are available, Franklin v. Gwinnett County Public Schools, 503 U. S. 60, 76. These remedies stand in stark contrast to the “un-usually elaborate,” “carefully tailored,” and “restrictive” enforcementschemes of the statutes in Sea Clammers, Smith, and Rancho Palos Verdes. Unlike those statutes, Title IX has no administrative ex-haustion requirement and no notice provisions. Plaintiffs can file di-rectly in court under its implied private right of action and can obtainthe full range of remedies. Accordingly, parallel and concurrent§1983 claims will neither circumvent required procedures nor allowaccess to new remedies. Moreover, under Rancho Palos Verdes, “[t]heprovision of an express, private means of redress in the statute itself” is a key consideration in determining congressional intent, and “the existence of a more restrictive private remedy for statutory violationshas been the dividing line between those cases in which . . . an action would lie under §1983 and those in which we have held that it would not.” 544 U. S., at 121. Title IX contains no express private remedy, much less a more restrictive one. Pp. 7–9.
(ii) Because Title IX’s protections are narrower in some re-spects and broader in others than those guaranteed under the Equal Protection Clause, the Court cannot agree with the First Circuit thatCongress saw Title IX as the sole means of correcting unconstitu-tional gender discrimination in schools. Title IX reaches institutions and programs that receive federal funds, 20 U. S. C. §1681(a), whichmay include nonpublic institutions, §1681(c), but it has consistentlybeen interpreted as not authorizing suit against school officials, teachers, and other individuals. Moreover, while the constitutional provision reaches only state actors, §1983 equal protection claims may be brought against individuals as well as state entities. West v. Atkins, 487 U. S. 42, 48–51. And Title IX exempts from its restric-tions several activities that may be challenged on constitutional grounds. See, e.g., §1681(a)(5). Even where particular activities and

particular defendants are subject to both Title IX and the Equal Pro-tection Clause, the standards for establishing liability may not bewholly congruent. Compare Gebser v. Lago Vista Independent School Dist., 524 U. S. 274, 290, with Monell v. New York City Dept. of Social Servs., 436 U. S. 658, 694. Pp. 9–11.(iii) The Court’s conclusion is consistent with Title IX’s contextand history. Because the Congress that enacted Title IX authorized the Attorney General to intervene in private suits alleging sex dis-crimination violative of the Equal Protection Clause, 42 U. S. C.§2000h–2, Congress must have explicitly envisioned that privateplaintiffs would bring constitutional claims to challenge gender dis-crimination via §1983. Moreover, Title IX was modeled after Title VI of the Civil Rights Act of 1964, Cannon, supra, at 694–695, and, at the time of Title IX’s 1972 enactment, the lower courts routinely in-terpreted Title VI to allow for parallel and concurrent §1983 claims.Absent contrary evidence, it follows that Congress intended Title IXto be interpreted similarly to allow for parallel and concurrent §1983claims. Pp. 11–12. 2. As neither of the courts below addressed the merits of petition-ers’ constitutional claims or even the sufficiency of their pleadings,this Court will not do so in the first instance here. Pp. 12–13. 504 F. 3d 165, reversed and remanded. ALITO, J., delivered the opinion for a unanimous Court.

Chief Justice Roberts Messes Up Presidential Oath…

January 20th, 2009


WASHINGTON  — Barack Obama took the 35-word oath of office Tuesday to become the United States’ 44th president — even if he may have been led to utter the historic words in the wrong order.
Obama was sworn in by Supreme Court Chief Justice John Roberts, resting his left hand on Abraham Lincoln’s Bible and raising his right hand to deliver the words that formally made him the successor to former president George W. Bush.
But things didn’t go exactly as planned for the swearing-in of the country’s first African-American commander-in-chief.
Under the gaze of more than two million crowded onto Washington’s National Mall and millions more around the world, Obama said: “I, Barack Hussein Obama, do solemnly swear that I will execute the office of president of the United States faithfully, and will to the best of my ability, preserve, protect, and defend the constitution of the United States.
“So help me God.”
As specified in the US Constitution, the word “faithfully” precedes the phrase “execute the office,” but the chief justice, in his first presidential inauguration, read that part of the oath incorrectly.
Obama paused, apparently realizing something was wrong, and after an awkward moment Roberts repeated himself, but the chief justice stumbled again. Obama eventually recited the line as Roberts originally said it.
Huge crowds watching the historic proceedings one mile (kilometer) down the National Mall on a jumbo TV screen groaned loudly after Roberts’ gaffe.
Obama was among 22 Democrats in the US Senate to vote against Roberts in his Supreme Court confirmation hearing.
In Obama’s first luncheon as president, the affable Roberts appeared to apologize, prompting laughter and a handshake from Obama.
Jeffrey Rosen, a US constitutional law expert and professor at George Washington University in Washington, said stumbling over the oath has “no impact. News flash: He’s president.”
Rosen pointed to the 20th amendment of the US Constitution, which provides that the president and vice president’s term begins at noon on January 20th.

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The Inauguration- A Celebration of Democracy – We wish that Bert Combs and Ned Breathitt could have been here….

January 20th, 2009

By Stan Billingsley Jan. 20, 2009

Today we celebrate a rite of Democracy, the peaceful exchange of national leadership.

All Americans can take pride in this event.   We do have one regret however, and that is that Gov. Bert Combs and Gov. Edward T. “Ned” Breathitt were not here to witness the inauguration of Barack Obama.

Any who are old enough to remember recall the events that started with the Public Accommodations Executive Order by Bert Combs, and the first Civil Rights Bill in the South passed by Gov. Ned Breathitt in l966.

We recall the political risks they each took in providing moral leadership on the issue of Civil Rights.  One who is old enough to have been a witness to those turbulent times will note today the progress this country has made.

I remember the story when the first black law student was admitted to the University of Kentucky College of Law.  He was asked to sit in the back row of his classroom at the old Lafferty Hall.  Ned Breathitt stood up and lead most of the class in moving their seats to the back of the room to sit with him.

Bert and Ned were not the only heroes in this struggle but they were the first Kentuckians in high office to turn rhetoric into action.  This day is a tribute to generations of leaders and citizens who risked their political fortunes, their personal safety, ridicule and censure in doing the right thing.  Every once in a while progress is made, and things go right, today is such a day.All Americans and all citizens of the world should and I believe most will, wish President Barack Obama well.  Bert and Ned would be very happy.

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Failure to report to jail is not violent crime

January 20th, 2009

by David Ziemer  Wisconsin Law Journal January 19, 2009

A mere failure to report to jail is not a  “violent felony” under the Armed Career Criminal Act (ACCA), according to the nation’s highest court.


The U.S. Supreme Court on Jan. 13 unanimously held that the 15-year minimum for defendants convicted of felon in possession of a firearm is not triggered by a prior conviction for failure to report to custody, in contrast to escape from custody.


However, even though the opinion reverses a Seventh Circuit precedent, intervening precedent from the Seventh Circuit had already gutted that precedent.


The case arose when Deondery Chambers pleaded guilty to felon in possession of a firearm in Illinois federal court. A defendant with three prior violent felonies or serious drug offenses is a career criminal subject to the 15-year minimum.


Chambers had a prior conviction in Illinois state court for failure to report to jail. Whether that conviction counted as a violent felony determined whether the mandatory minimum applied.


Both the district court and the Seventh Circuit held that the conviction is a violent felony.

U.S. v. Chambers, 473 F.3d 724 (7th Cir. 2007).


But the Supreme Court granted review and reversed, in an opinion by Justice Stephen G. Breyer. The court concluded that the framework it adopted last year in Begay v. U.S, 128 S.Ct. 1581 (2008), required that failure to report not be counted as a violent felony under the ACCA.


In Begay, the court held that a felony conviction for operating a motor vehicle while intoxicated is not a “violent felony” for two reasons: it was not similar to the ACCA’s list of enumerated violent felonies — burglary, arson, extortion, and crimes involving the use of explosives; and it did not involve purposeful, violent, and aggressive conduct.

Applying Begay, the Supreme Court held that failure to report to jail was not a violent felony for the same reasons.


Justice Breyer wrote, “The behavior that likely underlies a failure to report would seem less likely to involve a risk of physical harm than the less passive, more aggressive behavior underlying an escape from custody.


“Conceptually speaking, the crime amounts to a form of inaction, a far cry from the ‘purposeful, “violent,” and “aggressive” conduct’ potentially at issue when an offender uses explosives against property, commits arson, burgles a dwelling or residence, or engages in certain forms of extortion,” Breyer added.


To support its holding, the court extensively cited a November 2008 report by the U.S. Sentencing Commission that found that, of 160 instances of failure to report in 2006 and 2007, none involved violence during either the commission of the offense or recapture.

Justice Samuel A. Alito wrote a concurrence, joined by Justice Clarence H. Thomas, agreeing with the result, but criticizing the approach adopted in Begay as divorced from the statutory text.


“Today’s decision, for example, turns on little more than a statistical analysis of a research report prepared by the United States Sentencing Commission,” Alito wrote.


Case analysis


As noted, the court’s opinion reverses Seventh Circuit precedent, but that precedent had already been questioned by the appeals court itself since Begay was decided.

On Sept. 9, 2008, the Seventh Circuit decided U.S. v. Templeton, No. 07-2949, which involved a defendant who had a prior conviction for failing to report to a Wisconsin jail in violation of Wis. Stat. 946.425.


Citing Begay (and that the Supreme Court had also accepted review in Chambers), the court acknowledged, “Begay … shows that this court’s approach in Chambers and earlier cases was incomplete, because we did not ask whether escapes and failures to return are sufficiently similar to the listed offenses.”


The court concluded in Templeton, “A walkaway is not a crime of violence under Begay.

Nor is a simple failure to report to custody.”


So, the Supreme Court’s opinion affirms what the Seventh Circuit had already concluded — its own opinion in this case was incorrect.


Nevertheless, that doesn’t render the opinion superfluous, according to Marquette University Law Professor Michael O’Hear.


Chambers differs significantly from Begay, O’Hear said, because of the court’s reliance on statistical data that failure to report is not likely to result in violence.


In Begay, no such data was available. While there are statistics on drunken driving arrests, and drunken driving accidents, no one knows how many people drive drunk every year without incident.


In contrast, here, there was good data available how often violence results when people are arrested after failing to report to custody. “Where there is such data, courts must evaluate the risk to determine whether the offense is a crime of violence,” O’Hear said.

However, O’Hear acknowledged the case could be an outlier, just because the data available in this case will frequently not be available, in which case only Begay will provide guidance for lower courts.


O’Hear also noted that the majority seemed to take the exact approach that Justice Antonin Scalia advocated in Begay, but which the majority rejected — that the relevant issue is whether the crime has a level of dangerousness equal to or greater than burglary

Rev. Martin Luther King’s “I have a dream” speech remembered

January 19th, 2009

Today we remember the great speech given by Rev. Martin Luther King on the steps of the Lincoln Memorial in 1963.

Tomorrow, 45 years after this speech, we celebrate an event that suggests many of the dreams of Dr. King have been achieved.

Dr. Martin Luther King:

Five score years ago, a great American, in whose symbolic shadow we stand, signed the Emancipation Proclamation. This momentous decree came as a great beacon light of hope to millions of Negro slaves who had been seared in the flames of withering injustice. It came as a joyous daybreak to end the long night of captivity.

But one hundred years later, we must face the tragic fact that the Negro is still languishing in the corners of American society and finds himself an exile in his own land. So we have come here today to dramatize an appalling condition.

In a sense we have come to our nation’s capital to cash a check. When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note
was a promise that all men would be guaranteed the unalienable rights of life, liberty, and the pursuit of happiness.

It is obvious today that America has defaulted on this promissory note insofar as her citizens of color are concerned. Instead of honoring this sacred obligation, America has given the Negro people a bad check–a check which has come back marked “insufficient funds.”
But we refuse to believe that the bank of justice is bankrupt. We refuse to believe that there are insufficient funds in the great vaults of opportunity of this nation. So we have come to cash this check–a check that will give us upon demand the riches of freedom and the security of justice. We have also come to this hallowed spot
to remind America of the fierce urgency of now. This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism. Now is the time to make real the promises of democracy. Now is the time to rise from the dark and desolate valley of segregation to the sunlit path of racial justice. Now is the time
to open the doors of opportunity to all of God’s children. Now is the time to lift our nation from the quicksands of racial injustice to the solid rock of brotherhood.

It would be fatal for the nation to overlook the urgency of the moment and to underestimate the determination of the Negro. This sweltering summer of the Negro’s legitimate discontent will not pass until there is an invigorating autumn of freedom and equality.

Nineteen sixty-three is not an end, but a beginning. Those who hope that the Negro needed to blow off steam and will now be content will have a rude awakening if the nation returns to business as usual.

There will be neither rest nor tranquility in America until the Negro is granted his citizenship rights. The whirlwinds of revolt will continue to shake the foundation of our nation until the bright day of justice emerges.

But there is something that I must say to my people who stand on thewarm threshold which leads into the palace of justice. In the process of gaining our rightful place we must not be guilty of wrongful deeds. Let us not seek to satisfy our thirst for freedom by drinking from the
cup of bitterness and hatred.

We must forever conduct our struggle on the high plane of dignity and discipline. Again and again we must rise to the majestic heights of meeting physical force with soul force. The marvelous new militancy which has engulfed the Negro community must not lead us to a distrust of all white people, for many of our white brothers, as evidenced by
their presence here today, have come to realize that their destiny is tied up with our destiny and their freedom is inextricably bound to our freedom. We can not walk alone.

And as we walk, we must make the pledge that we shall march ahead. We cannot turn back. There are those who are asking the devotees of civil rights, “when will you be satisfied?” We can never be satisfied as long as the Negro is the victim of unspeakable horrors of police brutality.

We can never be satisfied as long as our bodies, heavy
with the fatigue of travel, cannot gain lodging in the motels of the highways and the hotels of the cities.

We cannot be satisfied as long as the Negro’s basic mobility is from a smaller ghetto to a larger
one. We can never be satisfied as long as a Negro in Mississippi cannot vote and a Negro in New York believes he has nothing for which to vote. No, no, we are not satisfied, and we will not be satisfied until justice rolls down like waters and righteousness like a mighty

I am not unmindful that some of you have come here out of great trials and tribulations. Some of you have come fresh from narrow cells. Some of you have come from areas where your quest for freedom left you battered by the storms of persecution and staggered by the winds of police brutality. You have been the veterans of creative suffering. Continue to work with the faith that unearned suffering is

Go back to Mississippi, go back to Alabama, go back to South Carolina, go back to Georgia, go back to Louisiana, go back to the slums and ghettos of our northern cities, knowing that somehow this situation can and will be changed. Let us not wallow in the valley of

I say to you today, my friends, that in spite of the difficulties and frustrations of the moment I still have a dream. It is a dream deeply rooted in the American dream.

I have a dream that one day this nation will rise up and live out the true meaning of its creed–”We hold these these truths to be self evident, that all men are created equal.”

I have a dream that one day on the red hills of Georgia the sons of former slaves and the sons of former slaveowners will be able to sit down together at the table of brotherhood.

I have a dream that one day even the state of Mississippi, a desert state sweltering with the heat of injustice and oppression, will be transformed into an oasis of freedom and justice.

I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.

I have a dream today.

I have a dream that one day the state of Alabama, whose governor’s lips are presently dripping with the words of interposition and nullification, will be transformed into a situation where little black boys and black girls will be able to join hands with little white boys and white girls and walk together as sisters and brothers.

I have a dream today.

I have a dream that one day every valley shall be exalted, every hill and mountain shall be made low, and rough places will be made plains, and the crooked places will be made straight, and the glory of the Lord shall be revealed, and all flesh shall see it together.

This is our hope. This is the faith with which I return to the south. With this faith we will be able to hew out of the mountain of despair a stone of hope. With this faith will be able to transform the jangling discords of our nation into a beautiful symphony of brotherhood. With this faith we will be able to work together, to pray together, to struggle together, to go to jail together, to stand
up for freedom together, knowing that we will be free one day.

This will be the day when all of God’s children will be able to sing with a new meaning “My country ’tis of thee, sweet land of liberty, of thee I sing. Land where my fathers died, land of the pilgrim’s pride, from every mountainside, let freedom ring.”

And if America is to be a great nation this must come true. So let freedom ring from the prodigious hilltops of New Hampshire. Let freedom ring from the mighty mountains of New York. Let freedom ring from the heightening Alleghenies of Pennsylvania.

Let freedom ring from the snowcapped Rockies of Colorado.

Let freedom ring from the curvaceous peaks of California.

But not only that–let freedom ring from Stone Mountain in Georgia.

Let freedom ring from Lookout Mountain of Tennessee.

Let freedom ring from every hill and molehill of Mississippi. From every mountainside, let freedom ring.

When we let freedom ring, when we let it ring from every village and every hamlet, from every state and every city, we will be able to speed up that day when all of God’s children, black men and white men, Jews and gentiles, Protestants and Catholics, will be able to join
hands and sing in the words of the old Negro spiritual,

“Free at last! Free at last! Thank God Almighty, we are free at last!”

Two Lexington Police officers have filed an unusual civil lawsuit. They have apparently overlooked the Kentucky “Firemans rule” which applies to Police Officers

January 18th, 2009

Officer Randall Combs claims in his lawsuit that he injured his shoulder, and Officer Derrick Wallace says he dislocated his thumb in a scuffle with Daniel Lee Billings on Dec. 20. 2007. Wallace and Combs were two of several officers dispatched to break up an unruly holiday party at the Crowne Plaza-Campbell House in Lexington.

According to police reports, police tried to arrest Billings’ wife, Kathy Lee, after she had refused to leave and screamed loudly. Billings tried to intercede and allegedly fought with police.

Officers restrained Billings, but he continued to jerk his head around, banging it on the pavement, according to police. Wallace placed his hand under Billings’ head to protect it, and he dislocated his thumb.

The officers will have to explain the testimony of a witness who the Herald-Leader  interviewed in 2007 that said that the defendant Billings was hogtied and that police continued hitting after he was restrained.

A witness told the Herald-Leader in 2007 that Billings was hogtied and police continued hitting after he was restrained.  Rowena Collins told the Herald-Leader she saw an officer “taking both hands and hitting him in the back of the head as hard as he could possibly hit him. That’s probably how he hurt his hand.”

The civil claim appears to be on very thin ice in suing someone they arrested and the business that requested their help. 

LawReader suggests that the Police Officers are unaware of a published Court of Appeals ruling from 1984 which applies the Fireman’s Rule to Police Officers. The Fireman’s Rule is a public policy statement wherein the courts have determined that public safety would be damaged if a person who called a fireman (or policeman) for assistance would be risking a lawsuit in the event that the fireman was injured in the performance of his job.  There are a few exceptions to the Fireman’s Rule, but this case has summary judgment written all over it, certainly for the hotel.

See:  Fletcher v. Illinois Cent. Gulf R. Co., 679 S.W.2d 240 (Ky. App., 1984)
“… appellant contends that the court erred in applying the “fireman’s rule” because he is a police officer. We disagree.
Our highest court has never had occasion in a published opinion to resolve the issue of whether our “fireman’s rule” applies to police officers. Other jurisdictions which adhere to the rule, however, do apply it to police officers. See Annot., 86 A.L.R.2d 1205 (1962). Moreover, the public policy considerations expressed in Buren, supra, which motivated our court to adopt the “fireman’s rule” in the first place also apply to police officers. Thus, there is simply no valid basis for us to conclude that the “fireman’s rule” does not apply to police officers. Hence, we decline to do so.
        Next, appellant argues that the public policy considerations which prompted our court to adopt the “fireman’s rule” are illogical and invalid. We disagree.
Our highest court succinctly summarized the “fireman’s rule” in Buren, supra, as follows:
Suffice it to say that as a general rule the owner or occupant is not liable for having negligently created the condition necessitating the fireman’s presence (that is, the fire itself), but may be liable for failure to warn of unusual or hidden hazards, for actively negligent conduct and, in some jurisdictions, for statutory violations “creating undue risks of injury beyond those inevitably involved in fire fighting.”
 The public policy considerations which motivated our court to adopt the rule are summarized in the following paragraph from its opinion:
        It is our opinion that the principle of assumed risk is applicable, at least in spirit if the label be considered in some respects inappropriate. That the fireman is duty bound to assume the risk because he is being paid to do so does not make it any the less voluntary.
Except for unusual hazards known to the property owner or occupant but unknown to him, the trained fire fighter is equally cognizant of and better able to evaluate the unpredictable dangers involved. When he arrives on the scene the field is his.
The owner has no power to direct or control his actions. He may not order him to stay outside, or to stay off the roof, or to wear a gas mask, or to limit his actions to shooting water into the building from a safe position outside.
To hold the owner responsible while denying him any right or discretion to say what the fireman shall or shall not do would not consist with what this court believes to be the fundamental law of liability by reason of negligence.
Having bound his hands, the law cannot justly inflict upon him the consequences of what he might otherwise have been able to prevent. See Suttie v. Sun Oil Co., 15 Pa.Dist. & Co.R. 3. Nor can a jury be permitted to do so.
It is not fairly a question of fact, and this is true whether the claim is  based on common law or statutory negligence.”

Maggard v. Conagra Foods, Inc., 168 S.W.3d 425 (KY, 2005) 


“We first agree with the trial court that this case was suitable for application of the Firefighter’s Rule. The Kentucky Supreme Court succinctly stated that the purpose of the policy was to encourage owners, occupiers, and others similarly situated, in a situation where it is important to call a public protection agency to do so free of any concern that they may encounter legal liability based on their negligence in creating the risk. Sallee v. GTE South, Inc., 839 S.W.2d 277, 279 (Ky.1992). We find this particularly apt under the facts of this case. An employer or premises owner should not be deterred from calling for medical assistance for fear that they may be held liable for any injury occurring in the process of transporting the patient. 

        In Kentucky, the Firefighter’s Rule has been applied to other professionals besides firefighters. Fletcher v. Illinois Central Gulf Railroad Co., 679 S.W.2d 240 (Ky.App.1984), this Court extended the rule to a police officer. This Court stated that the public policy considerations which motivated adoption of the Firefighter’s Rule also applied to police officers. Id. at 242. In Sallee, 839 S.W.2d at 279, the 

Page 428 

Supreme Court applied the rule to a fire department paramedic. The Court explained that one of the prongs of the Firefighter’s Rule is the involvement of “public employees (firefighters, police officers, and the like) who, as an incident of their occupation, come to a given location to engage a specific risk[.]” Id. at 279 (emphasis added.)” 



U.S. Supreme Court to Review Strip-Searches of Students

January 18th, 2009


The Supreme Court has agreed to hear a case involving the strip-search of a middle school student by school officials looking for over-the-counter and prescription drugs.


The strip-search case has attracted attention in education law circles.


In July, the 9th Circuit court ruled that a strip-search of an 8th grader by school authorities looking for prescription-strength Ibuprofen pills violated the student’s rights under the Fourth Amendment.


A panel of the court ruled 8-3 on July 11 that officials at an Arizona middle school “acted contrary to all reason and common sense as they trampled over” the privacy interests of Savana Redding. By a vote of 6-5, the panel held that the assistant principal who ordered the strip-search was not entitled to qualified immunity from liability in the student’s lawsuit.


Ms. Redding was searched in 2003 as part of an investigation into the possession of over-the-counter and prescription medications by students at Safford Middle School in the Safford school district.


After receiving a report that Ms. Redding, who was 13 at the time, had been distributing Ibuprofen pills to fellow students, school officials searched the girl’s backpack, then asked a female administrative assistant to go through her clothing. Ms. Redding had to remove her pants, lift the waist band of her underpants, and lift her shirt and pull out her bra band, according to court papers. No contraband was found.


Ms. Redding and her parents challenged the school officials’ actions as a violation of her Fourth Amendment right against unreasonable searches. They lost before a federal district court and before an initial three-judge panel of the 9th Circuit court. But the 9th Circuit granted a review by a larger panel of judges.


In that decision , the 9th Circuit majority said the strip search was “excessively intrusive,” especially considering that school officials were relying on an uncorroborated tip from another student who had been caught in possession of the pills.


The court further said it should have been clear to the school officials under the U.S. Supreme Court’s 1985 decision in New Jersey v. T.L.O. that the strip-search was unreasonable, and thus an assistant principal who ordered the search did not merit qualified immunity.


In T.L.O., the Supreme Court upheld the search of a student’s purse for contraband and found that school searches are justified by a “reasonable suspicion” that laws or school rules were violated. Under the ruling, schools must show that a search was reasonable at its inception and in scope.

“The guidance provided by T.L.O. should have been clear to the school officials, who undertook the professional obligation to balance properly the order of the school with the individual liberties of the students who enter the school,” the court said.


The school district’s appeal of that decision in Safford Unified School District v. Redding  (Case No. 08-479) was also supported by national school groups. The NSBA and the AASA called for the Supreme Court to provide greater guidance to school administrators about the legality of student searches.


The 9th Circuit court’s ruling “unfairly places school officials in the position of being sued and held personally responsible for good faith decisions intended to protect the health and safety of students entrusted to their care and tutelage,” the education groups said.


The justices indicated that both cases will likely be heard in their April argument session, with decisions expected by the end of the court’s term in June.

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