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CIVIL PRACTICE Nonprosecution decision is no acquittal in civil suit A prosecutor’s decision not to press charges against a pharmacist in a criminal matter did not constitute an acquittal for purposes of a civil malicious prosecution suit, Florida’s 4th District Court of Appeal held on Sept. 1. Swartsel v. Publix Super Markets Inc., nos. 4D03-1003, 4D03-1524. The pharmacist, Katherine Swartsel, was charged with possession of hydrocodone and petit theft. Although continuing to claim her innocence, Swartsel entered a pretrial intervention program, after which prosecutors dropped the charges without prejudice. Swartsel then filed a malicious prosecution charge against Publix Super Markets. A trial court granted summary judgment to Publix, holding that a nolle prosequi was not the equivalent of an acquittal for purposes of a malicious prosecution action. Swartsel appealed. Florida’s 4th District Court of Appeal affirmed, holding that the nolle prosequi did not constitute an acquittal, and that a malicious prosecution action requires a “bona fide termination” of the criminal proceedings in the plaintiff’s favor. The court said, “The later nol pros is capable of being read both for and against guilt. Indeed its primary purpose is to allow first offenders . . . to avoid a conviction on their record by successfully completing the program and having a nol pros entered.” Noting that the nolle prosequi was without prejudice, the court continued, “A charge thus hanging in suspense hardly seems to us a bona fide termination indicating innocence.” Full text of the decision CONSTITUTIONAL LAW Threat to kill president is not protected speech A woman’s threat to kill President George W. Bush, delivered in a letter to a Food Lion grocery store, was not First Amendment protected speech, the 4th U.S. Circuit Court of Appeals held on Sept. 8. United States v. Lockhart, No. 03-4815. Florence Lockhart delivered a letter to a Food Lion store in which she wrote, “if George Bush refuses to see the truth and uphold the Constitution I will personally put a bullet in his head.” Food Lion staff gave the letter to authorities, who were already familiar with Lockhart from previous threats she had made against Bush. Lockhart was convicted of making a threat to injure or kill the president, and was sentenced to 21 months in prison. She appealed. In affirming, the 4th Circuit rejected Lockhart’s claim that her conviction violated her First Amendment speech rights because her threat was not a “true threat” under the U.S. Supreme Court’s 1969 decision in Watts v. United States. Distinguishing Watts from her case, the court noted that the speaker at an anti-war rally in Watts was clearly joking when he said that if he were forced to carry a rifle, the first person he would want to shoot was President Lyndon B. Johnson. The 4th Circuit said, “although the letter contains political statements, the manner in which Miss Lockhart gave the letter to its recipients is different from a speech at a political rally. Nothing in Miss Lockhart’s actions suggest she intended to engage in political discourse with the Food Lion management.” Full text of the decision EMPLOYMENT Picnic accident is proper matter for OSHA citation A plant engineer’s use of a gas tank that was too large at a company barbecue warranted an OSHA citation, the 10th U.S. Circuit Court of Appeals held on Sept. 7. Safeway v. Occupational Safety & Health Review Commission, No. 03-9546. Safeway Inc. bought a 40-pound tank for its gas grill, which had originally come with a 20-pound tank. The 40-pound tank bore a warning label stating that it should not be used with a grill that normally uses a 20-pound tank. At an employee barbecue hosted by the company, the plant engineer set up the grill. He was later summoned to fix the grill because it wasn’t working properly. While he and a colleague were working, fuel escaped, causing an explosion that injured the two men. The Occupational Safety and Health Administration (OSHA) investigated and issued a citation alleging that Safeway had violated the general duty clause by its improper use of a gas hose and regulator assembly. An administrative law judge (ALJ) affirmed a violation of the general duty clause. On appeal, Safeway argued, among other things, that the alleged violation was not “with respect to employment performed in a workplace,” in that the barbecue was a voluntary employee function rather than a condition of employment. The 10th Circuit affirmed, holding that the engineer was “working” when he attempted to make sure that the grill was functioning properly. Moreover, there was evidence to support the ALJ’s conclusion that using the 40-pound tank was likely to cause serious injury. Full text of the decision EVIDENCE Felony gun charge needs more than name and ID Where the crime charged requires the government to prove a prior felony conviction, more is needed than evidence that a person with the same name had such a conviction, the 7th U.S. Circuit Court of Appeals held on Sept. 9. USA v. Allen, No. 04-1199. David L. Allen was prosecuted in Indiana for possession of a firearm by a felon. To prove his alleged previous felony conviction, the government submitted a 1995 Indiana abstract of judgment bearing the name “David L. Allen,” which showed a felony conviction, but contained no other information identifying the defendant. To link the 1995 judgment to the defendant, the government introduced a 1999 Indianapolis arrest report bearing his thumbprint and a case number that corresponds to the 1995 conviction. The defendant conceded that the 1999 report proved that he was arrested that year pursuant to a post-conviction warrant issued on the 1995 case, but he claimed that the arrest report was insufficient to establish beyond a reasonable doubt that he was the same David L. Allen who was convicted in the 1995 case. Evidence showed that the current Indianapolis phone directory had three listings for “David L. Allen,” three for “DL Allen,” 16 for “David Allen,” and 10 for “D Allen.” Nonetheless, the defendant was convicted. He appealed, challenging the sufficiency of the government’s evidence purporting to identify him. The 7th Circuit reversed on this issue of first impression for the circuit. The court held that a name alone is not sufficient to identify a defendant to a judgment of conviction. Full text of the decision INSURANCE LAW Injury release exceptions apply to latent injuries The “fairly and knowingly made” exception applies to unknown or latent injuries in a case involving a personal injury release, the Washington Supreme Court ruled on Sept. 9. Del Rosario v. Del Rosario, No. 74283-9. A passenger was injured in a car accident where the driver of the car was at fault. The driver’s automobile liability insurance policy included first-party personal injury protection coverage. Since the passenger did not speak English, she negotiated a settlement with the insurance adjuster and signed a release with the help of English-speaking relatives. Believing the release was only for her lost wages claim, the passenger later sued the driver for her injuries. The trial court instructed the jury that “release should be set aside if it was not fairly and knowingly made.” The jury returned a verdict in favor of the plaintiff, awarding her $21,600 in damages. The intermediate Court of Appeals reversed and created a new rule that if a person reasonably relied on an erroneous translation or explanation of a release, he or she may avoid the release. The Washington Supreme Court affirmed, holding that the “fairly and knowingly made” exception did not apply in this case because the passenger acknowledged that all her injuries were known at the time she signed the release. However, the court declined to adopt a new rule, sticking to the general contract principle that parties have a duty to read the contracts they sign. Full text of the decision INTELLECTUAL PROPERTY No-consent sampling is copyright infringement When there’s been an admitted use of digital sampling in sound recordings, there is copyright infringement. No inquiry into substantial similarity or de minimis use is necessary, the 6th U.S. Circuit Court of Appeals ruled on Sept. 7. Bridgeport Music Inc. v. Dimension Films, No. 02-6521. Bridgeport Music and Westbound Records, owners of the copyright for George Clinton and the Funkadelics’ recording of “Get Off Your Ass and Jam,” brought an infringement suit against No Limit Films, which digitally sampled a portion of “Get Off” for the song “100 Miles and Runnin’ ” used in the movie I Got the Hook Up. No Limit admitted to using a four-second guitar riff from “ Get Off,” which was modified and slowed down to form a seven-second loop that ran during five different segments of the “100 Miles” song. The court granted summary judgment to the defendants, finding that the use of the riff was de minimis, and that a reasonable listener would not recognize the sample as having come from “Get Off.” The 6th Circuit reversed, noting that its ruling applied only to sound recordings, not musical compositions, just as the whole of a sound recording cannot be copied, nor can a smaller part be “lifted” or “sampled” without infringing the copyright. For sound recordings, it is not the “song” but the sounds that are fixed in the medium. When those sounds are sampled, they are taken directly from the fixed medium. It is a physical taking rather than an intellectual one. Full text of the decision Implied contract claim not pre-empted by law Although a trial court correctly granted summary judgment to Miramax Film Corp. on a copyright claim against it, the court erred in granting summary judgment on a state law breach of implied contract claim because the claim was not pre-empted by the federal Copyright Act, the 9th U.S. Circuit Court of Appeals held on Sept. 8. Grosso v. Miramax Film Corp., No. 01-57255. Jeff Grosso sued Miramax Film Corp. and others, claiming that Miramax stole the idea for the film, Rounders, from his screenplay. Grosso sued under both the federal Copyright Act and a state law breach of implied contract claim. A trial court granted summary judgment on both claims, holding that Rounders was too dissimilar from Grosso’s work to sustain a copyright infringement action, and that Grosso’s state law claim was pre-empted by the federal Copyright Act. Grosso appealed. The 9th Circuit partially affirmed and partially reversed. It affirmed as to the copyright claim, agreeing that the two works were too dissimilar. However, it reversed as to the state law breach of implied contract claim, holding that the cause of action had an extra element-the implied promise for payment-not present in a Copyright Act claim, meaning that the claim was not pre-empted by federal law. Full text of the decision TORTS Murder witness can state emotional-distress claim A postal worker who witnessed a man shoot his wife in the head and then kill himself can state a claim for both intentional and negligent infliction of emotional distress, the Tennessee Supreme Court ruled on Sept. 8. Lourcey v. Estate of Charles Scarlett, No. M2002-00995-SC-R11-CV. Cindy Lourcey was making postal deliveries when she encountered Charles Scarlett and his wife, Joanne. Scarlett told Lourcey that his wife was having a seizure, but when Lourcey tried to call for help, Scarlett shot Joanne in the head, then shot himself. Lourcey sued Scarlett’s estate for intentional and negligent infliction of emotional distress. The trial court granted the estate’s motion to dismiss, but the appeals court reversed. The Tennessee Supreme Court affirmed, finding that Lourcey’s claim for intentional infliction of emotional distress was on account of her having witnessed an “outrageous act.” She also stated a claim for negligent infliction of emotional distress, even though she was not closely related to the couple. The existence of a relationship is relevant to the duty and causation elements of such a claim, but not dispositive. For instance, because Scarlett enlisted Lourcey’s help, a fact finding will weigh the foreseeability and gravity of the potential harm to Lourcey against the burden on Scarlett to prevent the harm from occurring. Full text of the decision Wrongful death claimant must be biological kin In order to bring a wrongful death claim for the death of a parent, a child must have a biological relationship to the parent, the Louisiana Supreme Court ruled on Sept. 9. Turner v. Busby, No. 03-C-3444. After a man was killed in an accident, many people filed a wrongful death suit, including Onterio McWright, his formally acknowledged son. In 1982, the decedent had signed a notarized stipulation agreeing to pay child support for McWright. He also subsequently signed two more stipulations, one stating that he was McWright’s “lawful parent” and the other admitting that he was McWright’s father. The defendants filed an exception of no right of action, arguing that McWright could not make a wrongful death claim. A paternity test revealed a 0% probability of McWright’s being the decedent’s son. The trial court granted the defendant’s exception of no right of action. The Louisiana Supreme Court affirmed. Although the decedent had executed several stipulations, a formal acknowledgement of paternity is only valid if there is a biological relationship. Because the paternity test had revealed a 0% probability of this being the case, the court declared that the formal acknowledgement of paternity is null and void. Full text of the decision

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