Another day, another blizzard.  The northeastern United States is recovering after 20 to 30 inches of snow fell over the weekend.  The storm has severely disrupted transportation throughout the region, rendering highways impassable and stranding subway riders in New York City.  Like thousands of others attempting to fly to or from a city in the Upper Midwest during our own snow-filled weekend of December 11-12, I ended up stranded in an airport (in my case the Detroit Metro Airport) due to flight cancellations.  During the extra 24 hours I spent in Detroit, I had ample opportunity to think about possible legal issues surrounding such a situation.

Obviously, airlines include language in their ticket purchase agreements releasing them from liability for cancellations or delays.  I wanted to check, though, to see if any resourceful litigants had found ways around those exculpatory clauses.

I tried a WestlawNext search in All State and Federal Jurisdictions for: liability for flight delay or cancellation (for Westlaw.com users, try an ALLCASES search for delay! cancel! /5 plane airplane flight /s liab! or sy,di(delay! cancel! /5 plane airplane flight /p liab! breach!), which should retrieve some comparable results).  A number of the results involve plaintiffs asserting tort claims, e.g., intentional infliction of emotional distress, to circumvent the bar placed by the contractual language.  Those claims generally found little success, with one court writing:

Plaintiff must establish both the existence and the violation of a duty owed to her by Defendant to establish liability in tort. . . It appears that Plaintiff does not complain of any duty of care owed by Defendant separate and apart from the Conditions of Carriage. . .  Even if Plaintiff’s allegations could be construed as a duty separate and apart from the contract, Defendant had no duty to provide Plaintiff with a stress-free flight environment.  Ray v. American Airlines, Inc., 2009 WL 921124 (W.D. Ark. Apr. 2, 2009).

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Some of you may be following the case of John Edward Green, in which he and his attorneys have challenged the constitutionality of the Texas death penalty.  Click here and here for some background information on the case.  The case took a new turn Tuesday, as the Texas Court of Criminal Appeals ordered that a hearing to determine the death penalty’s constitutionality be stayed and that the parties brief the issue for the Court.

Prior to the ruling, the hearing had proceeded for two days.  Instead of responding to the defense’s  evidence, the State of Texas made the decision to “stand mute,” (not present evidence) during the hearing.  I must admit that the State’s choice to stand mute came as a surprise to me, and it is something that I can’t say I’ve encountered before.

Black’s Law Dictionary, 9th Edition (BLACKS on WL) gives two definitions for “stand mute.”  The first refers to a criminal defendant’s refusal to enter a plea.  The second states: “. . . to raise no objections.”  So, would the State’s choice to stand mute affect an appeal in this case?  It is probably a safe assumption that the state would appeal an order declaring the death penalty unconstitutional.  Given the general rule that an objection or argument not raised in a lower court is waived (for a statement of the Texas rule, see Penry v. State, 903 S.W.2d 715, 729 (Tex. Crim. App. 1995)), would the state be unable to defend the statute’s constitutionality on appeal?

I ran searches on the issue in both Westlaw.com (stand! stood /3 mute! /s appeal! appell! /s waiv! in TX-CS) and WestlawNext (waiving appeal by standing mute, choosing Texas as the jurisdiction).  Many of the results dealt with issues such as a criminal defendant standing mute in lieu of entering a plea or plea agreements that called for the prosecution to stand mute during sentencing.  One case that came up in both search results seems to address the issue:

When the verdict was rendered by the jury, the trial court asked both the State and appellant if they had any questions as to the verdict. Both said that they did not. Because appellant stood mute, i.e. made no objection to the verdict when it was rendered, he waived the error about which he now complains.  Finch v. State, 2003 WL 22909180 (Tex. App. Dec. 10, 2003).

Regardless of the answer, it may not matter in this case.  The Court of Criminal Appeals may ultimately prevent the hearing from continuing.  Also, there is quite a lot of history in this case regarding the death penalty issue.  In fact, the judge issued an order in March declaring the death penalty unconstitutional, only to later rescind the order and schedule the current hearing.  Thus, it is likely that the State has already put forth arguments that it could renew on appeal.

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[Editor's Note: this is article is part of a brief series dedicated to fact-specific and pre-trial research frustrations]

Strolling past the John B. West commons here in Eagan, I wonder,  is that his real name?  Sinclair Lewis’ Babbit (another Minnesotan)  used to say, “I may not be any Rockefeller or James J. Shakespeare, but I certainly do know my own mind, and I do keep right on plugging along in the office….”  In fact, John B. is his real name. The “B” is for Briggs.  Check out Robert Jarvis’ profile in the American Journal of Legal History (50 AMJLH 1)

Early in the twentieth century, John B. West developed the topic and KeyNumber System – a digest of American law. Some have challenged the Digest’s relevancy — it’s “literary warrant”  — for the digital age.  Even William Patry, a West author, relegated it to the “crassest form of cattle branding.”  According to Professor Peter Schanck, attorneys  “tend to concentrate more on the facts … than on abstract doctrines. In so doing, they prefer searching descriptive word indexes over topical analyses, and they search the indexes as much for factual terms as for legal concepts.”   (See Peter Custer citing Schanck at 102 LLIBJ 251.) Really? In fact,  Custer noted that his research indicates “an overall preference for using both descriptive word indexes and topical analysis followed by a lesser preference for using the descriptive word index alone, with only a small number preferring to just search using topical analysis.

Well, I may not be any John B. West but I certainly do know my own mind.  I’m a big fan of William Patry but I use the Digest every day.  Ultimately, I think the combined method described by Custer is preferred by Reference Attorneys who know the Digest well.  Many times, searching the topic as it relates to specific facts is critical. But, I wouldn’t give up the Digest.

Consider copyright fair use.  The elements of fair use are well known and easy to cite. But, according to Patry, “Fair use is an issue that is decidedly not capable of generalized application. Fair use is, as the U.S. Supreme Court and the Congress have repeatedly noted, highly “fact-specific,” to be adjudicated only on a “case-by-case basis”” (PATRYFAIR 7:5).  It makes sense, then, for Patry to organize his chapter on the fair use of life stories by case:

• Toksvig v. Bruce Publishing
• Eisenschiml v. Fawcett Publications
• Greenbie v. Noble
• Holdredge v. Knight Publishing
• Rosemont Enterprises. v. Random House
• Estate of Hemingway v. Random House
• Meeropol v. Nizer
• Rokeach v. Avco Embassy Pictures
• Iowa Sate Univeristy Research Foundation v. American Broadcasting Co.
• Salinger v. Random House
• New Era Publications Int’l ApS v. Henry Hold & Co.
• Wright v. Warner Books
• Norse v. Henry Holt & Co.
• Nash v. CBS
• Elvis Presley Enterprises v. Passport Video

The following search for the same subject matter on Westlaw delivers 50 results:

Federal Intellectual Property Law Cases (Copyright): fipc-cs

Initial Search: biography /s fair-use (50 Results)

I have little doubt that most, if not all of Patry’s cases are in the result set or cited within cases of this result set.  But, is reviewing all 50 cases the most efficient means for isolating the important cases?  Instead, try using the topic number for copyrights like this:

Locate: to(99) /p biography /s fair use (19 Results)

The results begin to look more like Patry’s contents.  Patry described the KeyNumbers as insipidly generic. Generic? In this case, maybe, especially in the way we’re using them. It’s an extraordinarily simple edit.  I wouldn’t say, ‘insipid’,’ however.  How might you measure the value of reducing your result set from 50 to 19? The 19 results do not replicate Patry’s list exactly but it very likely represents a shorter path to the important case law on this topic. WestlawNext fares even better.  The Digest is now working behind the scenes as part of WestlawNext’s WestSearch.  Our search for

copyright fair use in biography or life story

delivered all but three of Patry’s cases directly in the result list.

Finally, in keeping with our theme for the week, let’s also consider pre-trial discovery issues.  Discovery is another area where many of our customers require fact-specific results. Quite often, the answer is, there is no answer.  Or, rather, we necessarily resolve ourselves to, ‘is it likely to lead to the discovery of admissible evidence?’  Or, ‘is it unduly burdensome?’ But, what if you’re investigating the burdensomeness of a particular item? Maybe you wouldn’t want to miss a case with your facts.  So, try these searches with topic-number related roots and fact-specific terms:

State Discovery / Procedure: to(307) /p meta-data

Federal Discovery / Procedure: to(170A) /p meta-data

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I follow the legal happenings of the amusement industry as part of another blog I write. I find it useful to set up a Westclip as a way of monitoring recent opinions issued in the amusement industry area.  Based on the number of type of results I received over the past 9 years, I have tweaked my Westclip on several occasions to add new concepts to my search.

Recently, my Westclip informed me of the case of Pickaway County Skilled Gaming, L.L.C. v. Cordray 2010 WL 3972575 (Ohio 2010), in which the Ohio Supreme Court reviewed Ohio Statutes R.C. 2915.02(A)(2) and R.C. 2915.01 (AAA)(1) when an operator of a members-only amusement game arcade that handed out cash prizes to players challenged the $10 prize limit for each play on its machines, arguing that the limit was not rationally related to determining whether amusement machines are based on skill or on chance which violated the Equal Protection Clause of the United States and Ohio constitutions.  R.C. 2915.02(A)(2) states that no person shall “[e]stablish, promote, or operate or knowingly engage in conduct that facilitates * * * any scheme of chance.” R.C. 2915.01(C) defines “scheme of chance”; the subsection specifically states that a “scheme of chance” does not include a skill-based amusement machine. These types of machines range from games (e.g., Skee-ball and Whack-a-Mole) commonly found at fair and amusement-park midways and in family fun centers to more sophisticated skill-based games found in the members-only arcade that was involved in this case.

In response to a documented “increase in the number of illegal gambling machines around the State of Ohio,” Ohio Governor Ted Strickland issued Executive Order 2007-28S on August 22, 2007.  Through this Executive Order, Governor Strickland declared an emergency justifying suspension of the normal rulemaking process and authorized the attorney general to immediately adopt former Ohio Adm.Code 109:4-3-31. Executive Order 2007-28S at ¶ 9-10.  Shortly thereafter, the Ohio Attorney General closed Pickaway County Skilled Gaming (“Pickaway”) in violation of the new rule and Pickaway challenged the rule and requested an injunction.  While the challenge was pending, the Ohio House of Representatives passed Sub.H.B. No. 177, which, among other provisions, amended R.C. 2915.01(AAA). The bill incorporated into the statute much of the language defining “skill-based amusement machines” that had been set forth in Ohio Adm.Code 109:4-3-31, including the ten-dollar prize-value limit.  Now the Ohio Attorney General defends the statute saying that the limit is rationally related to two legitimate government interests: (1) establishing economic regulations governing the operation of skill-based amusement machines and (2) protecting against criminal acts and enterprises as a prophylactic measure against illegal gambling.

The Ohio Supreme Court agreed with the Attorney General.  According to the Court, “[t]he rational-basis test involves a two-step analysis. We must first identify a valid state interest. Second, we must determine whether the method or means by which the state has chosen to advance that interest is rational.” McCrone v. Bank One Corp., 107 Ohio St.3d 272, 2005-Ohio-6505, 839 N.E.2d 1, ¶ 9, citing Buchman v. Wayne Trace Local School Dist. Bd. of Edn. (1995), 73 Ohio St.3d 260, 267, 652 N.E.2d 952.  The Court agreed that R.C. 2915.01 does help protect two valid government interests and “[u]nder the rational-basis standard, a state has no obligation to produce evidence to sustain the rationality of a statutory classification.” Columbia Gas Transm. Corp. v. Levin, 117 Ohio St.3d 122, 2008-Ohio-511, 882 N.E.2d 400, ¶ 91, citing Am. Assn. of Univ. Professors, Cent. State Univ. Chapter, 87 Ohio St.3d at 58, 60, 717 N.E.2d 286. “[S]tatutes are presumed to be constitutional and * * * courts have a duty to liberally construe statutes in order to save them from constitutional infirmities.” Eppley, 122 Ohio St.3d 56, 2009-Ohio-1970, 908 N.E.2d 401, ¶ 12, citing Desenco, Inc. v. Akron (1999), 84 Ohio St.3d 535, 538, 706 N.E.2d 323.

So how does one cope to have games within the statutory limits but offer big prizes?  As Pickaway stated in the case, because the dollar limit is based on each play, and R.C. 2915.01(AAA)(1) does not limit the number of times an individual can play a skill-based amusement machine, players can amass endless vouchers and redeem them for valuable prizes.

At least once a week, I’m fielding questions concerning FRCP 8 ,  FRCP 12(b)(6), and Twombly/Iqbal.

The Twombly and Iqbal decisions have sometimes been considered a thorn in the side of Plaintiff attorneys as well as some courts the past few years.  See this news search: (plaintiff /7 attorney lawyer counsel /250 twombly iqbal & pleading plaus!) & da(last 3 years)).  But, the Twombly/Iqbal interpretation of Federal Rule of Civil Procedure (FRCP) 8(a) certainly increased the awareness of pleading standards from both sides of civil lawsuits.  In general, the Twombly/Iqbal decisions  standardized the  plausibility pleading standard requiring plaintiffs to hash out some facts in order to prevent a successful 12(b)(6) motion to dismiss.  See Wright & Miller, FPP § 1202.  The news and scholarly commentary either falls along the lines that there was no effect on pleading standards post-Twombly/Iqbal or they created an unfair heightened  standard for plaintiffs beyond the language of FRCP 8.  For some great articles on Twombly/Iqbal and its effect (or non-effect) on pleading, try ti(twombly /s iqbal) in Journals and Law Reviews (JLR).

The outcry from plaintiff attorneys has led to a couple of bills in Congress to “repeal” Twombly/Iqbal (see H.R. 4115 and S.1504) that would effectively circumvent the current process for reviewing and updating the procedural rules under the Rules Enabling Act (28 U.S.C. § 2072 et seq).

I listed below a few sample searches that bring up material that may be helpful for pleading standard searches.  Please note that I keyed my search to pleadings in Fair Labor Standard Act cases, but those terms can easily be substituted.  Courts do occasionally misspell terms, so it may be helpful to supplement your search with common or even uncommon misspellings.  For a frequently cited Supreme Court case, use the U.S. and Sct. Citations.  For a misspelling example, do a search for Twombley in ALLCASES and you will get 840 hits.  Running Twombly yields well over 35,000.

Database – ALLFEDS

Sample Westlaw Search – TWOMBLY TWOMBLEY “550 U.S. 544″ “127 S.CT. 1955″ IQBAL “129 S.CT. 1937″ /P PLEAD! FACT! COMPLAINT PLAUS! CONCLUS! “STATUTORY LANGUAGE” /250 12(B)(6) (MOTION /3 DISMISS!) /250 “FAIR LABOR STANDARDS ACT” F.L.S.A. “EQUAL PAY ACT” (29 +1 U.S.C! +5 206 207 215(A))

WestlawNext:  Basically, most of the searching concerns I have on Westlaw are mitigated on WestlawNext.  There are no limits on the number of Keycite Citing References you can search and a West Search including Twombly and Iqbal will bring up cases in relevancy order.  Of course, you can always run the above search on WestlawNext as well.

Sample WestlawNext Search:  Fair Labor Standards Act Twombly Iqbal Pleading Standard

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Illinois Senator Roland Burris, who was appointed in 2008 by then-Illinois-Governor Rod Blagojevich to serve the remainder of President Obama’s term in the U.S. Senate, has asked the Supreme Court to stay a U.S. District Court judge’s order that a special election be held to fill the remaining six weeks of the term.  Burris’s problem with the decision is that the special election is to be held on November 2 (the same day that Illinois voters will elect a senator for the next six years), and only those candidates seeking a full senate term will appear on the special election ballot.  Burris has chosen not to run for another term, and is thus deprived of a chance to serve an additional six weeks.  According to the Chicago Sun-Times:

Burris has said he wants more time in the Senate to continue what he called his important work on issues including Wall Street reform; health-care; small business legislation and attempts to change the military’s “Don’t Ask, Don’t Tell” policies.

The Supreme Court petition is available at 2010 WL 3611713.  It outlines the complicated factual and procedural background of this case, and alleges, in part:

Despite the fact that the Seventeenth Amendment grants only the state legislature the power to “direct” an election to fill a vacant Senate seat, the district court found that it could unilaterally “formulate, as necessary, mechanisms for the conduct of a special election …” After refusing Senator Burris’s request for full briefing on the issues, the district court proceeded to limit the field of candidates for the special election to those candidates who already had been added to the ballot for the regular election and to define other aspects of the special election.

This case has not garnered a great deal of media attention, but presents some interesting legal questions.  To be informed of any Supreme Court opinion in this case,  create a WestClip in the SCT database with the following search: ti(burris). Or, track the docket at 10-367.

In 1938, the Nazi’s arrested  Fritz Grunbaum, a Jewish cabaret performer as he attempted to flee Europe.  He was deported to Dachau and died there in 1941.  During his incarceration, Grunbaum was forced to execute a power of attorney which effectively divested him of his property including a work of art by the Viennese artist, Egon Schiele.  The work found its way to Swiss art gallery and then to New York where David Bakalar, a Massachusetts resident, purchased it for $4300. Earlier this month, the Second Court of Appeals vacated a Southern District of New York judgment and held that New York law, not Swiss law applied to Mr. Bakalar’s declaratory judgment action.  See 2010 WL 3435375.  In New York, unlike Switzerland, a thief cannot pass good title.  Stolen artwork, the Second Circuit concluded, belongs to the original owner.

Raymond J. Dowd is a partner and member of Dunnington, Bartholow and Miller’s intellectual property and art law practice groups. He has broad commercial litigation experience and is author of the Copyright Litigation Handbook (on Westlaw at COPYLITIG).  He also writes the Copyright Litigation Blog (http://copyrightlitigation.blogspot.com/).  He represented the Grunbaum heirs. We interviewed Mr. Dowd last week.

Reference Attorneys (RA):  Welcome and congratulations, Mr. Dowd. The focus of our blog is really nuts and bolts, legal research.  But, it’s hard to ignore the incredible story behind this litigation; from the tragedy at Dachau to what the court described as the “shadowy institution of the art gallery.”  I was especially struck, by the comments of the U.S. Consul General cited in the concurrence stating that there was “a curious respect for legalistic formalities.  The signature of the person despoiled is always obtained, even if the person in question has to be sent to Dachau in order to break down his resistance.” And, this, by historian Raul Hilberg, also cited by the concurrence:  “Lawyers were everywhere…again and again, there was a need for legal justifications.”

Time has passed (and, we’re in the US) but, the Swiss law seems to perpetuate the ill effect of those ‘legalistic formalities.’  What does this say about our profession?

Raymond Dowd (RD): The rise of Nazi Germany and the central role played by the legal profession shows how important it is to have an independent bar that actively promotes individual liberties and property rights in the face of state action, political pressures or unpopular causes.  Too many of us are silent when rights guaranteed by the Constitution are infringed, particularly when those rights belong to an unpopular minority.

RA: As an experienced litigator, how do you view your role in righting this wrong?

RD: Specific to the Nazi spoliation of Jews 1933 through 1942, I have been able, with the help of the world’s leading historian in the area, to reconstruct the legal environment in position at the time.  We had to take Nazi-era legal documents, decrees and other evidence scattered in various publications and tie them together to demonstrate that Jews weren’t simply voluntarily abandoning their property en masse, that there were legal coercions such  taxes and as 90% confiscatory foreign exchange rates that pauperized anyone wishing to flee the country.

RA: Also, I mention the $4300 price tag because there’s obviously more at stake here than the value of a work of art.  How would you characterize the ‘value’ of this case?

RD: I have spend five years of my life on this case, often with the evidence of hundreds of thousands of murders on my desk or a nearby bookshelf.   The massive spoliation of Jews has been overshadowed in history by the horror of the murders.  For a full picture of history, we must realize that 8-9% of Germany’s budget of 1938-39 was stolen from Jews.  When we put the profit motive into the Holocaust, it gives us a new understanding of why the murders took place and how the Nazis exterminated a pauperized population.

RA: I was surprised by the amount of materials related to stolen and looted art.  This case sites to several publications.  Is there a resource you relied on or might recommend?

RD: It is estimated that over 600,000 artworks stolen by the Nazis alone are still missing.  Many books have been written, it really depends on the country and era.  For provenance researchers, there is the American Association of Museums Guide to Provenance Research.  There are reports on stolen art that date back to the 1940’s and websites of many of the major museums report on dubious provenances in their collections.

RA: What can you tell us about the ‘art law?’  Is this a growing practice area?

RD: I think that art and cultural property will grow in significance as a practice area.  Now the number of practitioners is relatively small.  But U.S. museums have enjoyed explosive growth, and the US public has taken to art collecting and contemporary art like never before.   As in any other multi-billion dollar industries, lawyers are needed.

RA: Is it limited to stolen and looted art?

RD: No, there is a significant legal trade in art and artworks and a myriad of problems that implicate everything from construction law to labor law.

RA: Do you have a sense for how big the problem of looted and stolen art is?

RD: I hear statistics that the illicit art trade is just behind the illegal arms and drug trades.

RA: Customers reading this case will be calling Reference Attorneys for the Austrian Nullification Act, Article 934 of the Swiss Civil Code, the Bergier Commission Report.  Are these materials provided exclusively by your experts, or is there a resource you enjoy for these kinds of historical and international material?

RD: The Final Bergier Commission report is available online in English at http://www.uek.ch/en/index.htm.  I am not aware of any commercially available English-language translations of the Austrian or Swiss Civil Codes, we had to pay to translate these and relied on foreign law experts.   If you look at Cultural Property blogs, you can locate good resources.

RA: I learned a new term of art; a work’s “provenance” significantly affects work’s value.  This sounds like a job for a history detective.  Any recommendations for researching a work’s “provenance?”

RD: Attorneys and judges are not trained in historiography.  An attorney must work closely with provenance researchers or “art detectives,” as well as genealogists specialized in probate research and historians trained in art.  History is not logic.  I think that after learning a lot about the particular art, artist and historical context, an attorney can work well with these professionals to develop theories of a case or draw solid conclusions from historical documentation.

RA: Finally, where I can our readers find you in the near future?  Are you presenting or participating in any upcoming events?

RD: I will be speaking at the upcoming Federal Bar Association Convention in New Orleans, for more information, www.fedbar.org For more news on speaking enagements and Nazi-looted art, please subscribe to Copyright Litigation Blog (http://copyrightlitigation.blogspot.com/).

The Wall Street Journal’s Law Blog yesterday had a story regarding a federal inmate and frequent frivolous litigant Jonathan Lee Riches.  It seems that the United States District Attorney for the Eastern District of Kentucky has attempted to obtain an injunction preventing Mr. Riches from filing documents in any court unless a  federal judge determines that they have a basis in law and fact.

Mr. Riche’s history of filing lawsuits that are later dismissed as frivolous is quite long.  His filings are often hard to understand, and his list of parties are also sometimes confusing.  A search of:

AT(LEE-RICHES) & PRO-SE INMATE-MAIL CORRECTIONAL-INSTITUTION

Returns over 2,000 results in DOCK-ALL, although in fairness they may not all be Mr. Lees cases, they are simply anything with Lee Riches in the attorney field with pro se, inmate mail, or correctional institution elsewhere in the document.  One docket in particular stands out (and has a new motion filed as of July 30th 2010) as having a very strange mix of parties, some of the extremely numerous names:

We start out with the usual individuals:

GEORGE W. BUSH INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNITED STATES OF AMERICA

RICHARD B. CHENEY VICE PRESIDENT

CONDOLEEZA RICE SECRETARY OF STATE

No real surprises there for a case filed in 2006.  However the list of parties also contains foreign governments and celebrities:

KINGDOM OF SAUDI ARABIA

JEWISH STATE OF ISRAEL

THE VATICAN

JERRY WEST VICE PRESIDENT OF THE LOS ANGELES LAKERS

TONY DANZA

ANNA NICHOLE SMITH

BRAD PITT AND HIS ADOPTED SON MADDOX PITT/JOLIE

SADDAM HUSSEIN

But more strangely included are a large list of inanimate objects, geographical places, long dead historical figures, wholly fictional product spokespeople and sometimes ephemeral concepts that have no physical existence.  Some examples:

VIENNA CONVENTION

MAGNA CARTA

TSUNAMI VICTIMS

FRUIT OF A-LOOM [sic.]

PLATO

MEIN KAMPF

NORDIC GODS

THE DA VINCI CODE

MT. RUSHMORE

GREEN BAY’S LAMBEAU FIELD

MING DYNASTY

GANGS IN HONG KONG

THE APPALACHIAN TRAIL

THE COLOSSUS OF RHODES

BETTY CROCKER

LIBERTY BELL

This is a very small sampling of the parties.  You can find the entire list by clicking the link above.

The 3rd Circuit on Tuesday September 7th handed down a much anticipated decision  dealing with the Governments attempts to get cellular network positioning information  without a warrant (2010 WL 3465170).

The dispute stems from the Governments attempts to obtain cell site location information (CSLI)  regarding a particular subscriber under the Stored Communications Act (18 U.S.C.A. §§ 2701 et seq.).

CSLI is information that cellular providers maintain regarding the location of their customers when they make a call.  Whenever a cellular customer makes a phone call, the cellular providers record what tower transmitted the call, as well as what “face” of the antenna was used to receive the call.

The police argue that this is valuable information for proving that individuals were at certain locations at particular times.  In this case, they requested the information under the Stored Communications Act provision that allows the Government to obtain the information by getting a court order merely upon a showing of the information’s relevance and materiality of the data to an ongoing criminal investigation.  This Act relieves the Government in certain situations of having to get a warrant and show probable cause.

In this case, the lower court refused to grant the order, and in a rare occurrence the order denying the request was joined by the other judges in the district.  The lower court held that the Stored Communication Act did not apply and that the CSLI records could only be obtained upon a showing of probable cause.

The 3rd Circuit here decided that the Stored Communications Act does not necessarily require that Probable Cause be shown in order to obtain this data.  Having decided that the lower court’s decision would not stand, much of the later decision dealt with the Government’s contention that if it met the requisite showing under the Stored Communications Act then the Magistrate must grant the order.  The 3rd Circuit did not agree, in addressing the legislative history they concluded that the magistrate might have discretion to require probable cause and a warrant under some circumstances.  The 3rd Circuit then remanded to the lower court for further consideration.

For more on the Stored Communications Act, see Chapter 9 of Data Security and Privacy Law: Combating Cyberthreats; specifically,  DATASPL § 9:17 et. seq.

Maricopa County, Arizona Sheriff Joe Arpaio has been sued by the United States Department of Justice.  The complaint, available on Westlaw at 2010 WL 3436735, alleges that the sheriff’s office has refused to cooperate with a Federal investigation into possible violations of Title VI of the Civil Rights Act of 1964.  It states, in part:

Since March 2009, the United States has attempted to secure Defendants’ voluntary cooperation with the United States’ investigation of alleged national origin discrimination in Defendants’ police practices and jail operations. Despite notice of their obligation to comply in full with the United States’ requests for information, Defendants have refused to do so. Defendants’ refusal to cooperate with reasonable requests for information regarding the use of federal funds is a violation of Defendants’ statutory, regulatory, and contractual obligations.

The docket for the case is also available on Westlaw, and can be tracked via the “Track this Docket” link if you want to receive notification of all new filings in the case.  A search of the Arizona State and Federal Dockets database (DOCK-AZ-ALL) for PTN(arpaio) & FLD(aft 12/31/2009) will return not only the docket for this case, but also dockets for other recent litigation involving “America’s Toughest Sheriff” (Note: sort the results by Filing Date to view the most recently filed cases first).

There are also numerous law review and journal articles that mention Sheriff Arpaio.  A search in the All Law Reviews, Texts & Bar Journals database (TP-ALL) for Joe Joseph /2 Arpaio returns 85 documents.  Many of these discuss Sheriff Arpaio’s aggressive enforcement of immigration laws, which is apparently what prompted the DOJ’s investigation. 

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