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CONSTITUTIONAL LAW Bar on ‘for sale’ signs is a First Amendment breach A city ordinance prohibiting the display of “for sale” signs in cars parked along streets is an unconstitutional restriction on commercial speech, the 6th U.S. Circuit Court of Appeals ruled on June 29. Pagan v. Fruchey, No. 04-4414. The Glendale, Ohio, sheriff notified Christopher Pagan that he would receive a citation if he did not remove the “for sale” sign from the 1970 Mercury Cougar he had parked on the street. Pagan removed the sign but filed a lawsuit against the city and the sheriff, arguing that the ordinance barring display of the sign infringed the First Amendment. An Ohio federal court ruled that the ordinance was a constitutional regulation of commercial speech. The 6th Circuit reversed. The court said that under the Supreme Court’s 1980 ruling in Central Hudson Gas & Electric Corp. v. Public Service Commission, the city was required to produce evidence of harm that could come from allowing “for sale” signs to be posted in cars. The court said, “The record before us demonstrates no . . . legislative or judicial history supporting the conclusion that restrictions placed on ‘For Sale’ signs posted on vehicles address concrete harms or materially advance a governmental interest.” The city’s argument sidesteps the key issue, namely, “whether or not the speech Glendale seeks to regulate poses the harms that all agree would justify regulation. If ‘For Sale’ signs are a threat to the physical safety of Glendale’s citizens or implicate aesthetic concerns, it seems no great burden to require Glendale to come forward with some evidence of the threat or the particular concerns.” Full text of the decision CRIMINAL PRACTICE Attorney must appeal if client asks him to do so An attorney provided ineffective assistance when he failed to follow his client’s unequivocal instructions to file a notice of appeal � despite the fact that the client had expressly waived his right to appeal his conviction, the 4th U.S. Circuit Court of Appeals ruled on June 28. U.S. v. Poindexter, No. 05-7635. Walter Poindexter was charged with distribution of heroin and related crimes. During his trial, Poindexter executed a plea bargain in which he waived his right to appeal. Poindexter later alleged that he had instructed his attorney to appeal and that the attorney had failed to do so. Poindexter moved to have his sentence vacated, arguing that, by not following his instructions to appeal, his attorney had provided ineffective assistance of counsel. A Maryland federal trial court denied the motion, holding that Poindexter had waived his right to appeal. Reversing, the court followed the U.S. Supreme Court’s Roe v. Flores-Ortega, 528 U.S. 470 (2000), which held that an attorney provides ineffective assistance when he or she does not follow a client’s instructions to appeal. The court said, “[W]e hold that an attorney is required to file a notice of appeal when unequivocally instructed to do so by his client, even if doing so would be contrary to the plea agreement and harmful to the client’s interests. In this case, although there is a real possibility that Poindexter will face a higher sentence . . . if he decides to appeal, his right to appeal cannot be thwarted by attorney error.” EMPLOYMENT Individuals aren’t liable for violations of ADA Individuals may not be held personally liable for violation of the employment retaliation provisions of the Americans With Disabilities Act or the Florida Omnibus AIDS Act, the 11th U.S. Circuit Court of Appeals held on June 26 in a case presenting two questions of first impression. Albra v. Advan Inc., No. 06-15969 In 2006, Adem Albra, acting pro se, sued his employer, Advan Inc., and its officers Wayne Abbott, Troy Abbott and Myriam Abbott. He alleged discrimination and retaliation due to his HIV status, under the Americans with Disabilities Act, 42 U.S.C. 12101, and the Florida Omnibus AIDS Act (FOAA), Fla. Stat. Ann. � 760.50. A Florida federal judge dismissed the case, holding that neither the ADA nor the FOAA allows for individual liability. The 11th Circuit affirmed, holding that individual liability is precluded for violations of the ADA’s employment discrimination provision. While the ADA’s anti-retaliation provision not only confers on those whom it protects a federal right to be free from retaliation, and imposes a duty on all individuals to refrain from such conduct, that does not mean that such individuals are “liable for a breach of that duty.” The court said that the Florida AIDS statute’s employment discrimination provisions must be construed in conformity with the ADA, and that therefore “an individual may not be sued privately in his or her personal capacity for violating the FOAA’s employment discrimination provisions.” EVIDENCE Urine test not enough to sustain marijuana charge A POSITIVE URINALYSIS for marijuana metabolites, with no other evidence, is insufficient to prove knowing and intentional possession of marijuana, the North Carolina Supreme Court ruled on June 28 on a matter of first impression. State v. Harris, No. 472PA06. While on probation in 2004, Darian Jaquan Harris provided a urine sample three days after an incident in which he allegedly snorted cocaine and sold a woman crack cocaine before dousing her in rubbing alcohol and setting her on fire. The urine sample, collected to determine if he violated probation, showed the presence of marijuana and cocaine metabolites. Harris was indicted on several assault counts as well as sale and possession of cocaine and possession of marijuana. A jury convicted Harris for possession of cocaine and marijuana, but acquitted him on the other counts. He was sentenced to 11 to 14 years for felony possession of cocaine as a habitual felon. An intermediate appellate court upheld the cocaine conviction, but reversed the marijuana conviction, saying that a positive urine test, without more evidence, does not satisfy the intent or the knowledge requirement of possession. Affirming, the North Carolina Supreme Court said, “the presence of marijuana metabolites found in defendant’s urine sample only raises a suspicion or conjecture that defendant had the power and intent to control the substance’s disposition.” Though the test showed metabolites were present, the jury was “left to speculate as to how the substance resulting in those metabolites entered defendant’s system.” FAMILY LAW Attorney fee waiver may not be unconscionable Under the Colorado Marital Agreement Act, a court can review a waiver of attorney fees for unconscionability at the time of enforcement, the Colorado Supreme Court held on June 25. In re Marriage of Ikeler, No. 06SC664. On Nov. 18, 2000, Douglas and Melodee Ikeler were married. In 2004, Melodee Ikeler filed for divorce and requested an award of attorney fees. Her husband filed a motion for summary judgment, pointing to a premarital agreement waiving attorney fees. The trial court denied his motion, holding that the Colorado Marital Agreement Act doesn’t change the common law rule that waivers of attorney fees are unenforceable if unconscionable at the time of enforcement. An intermediate appellate court reversed. The Colorado Supreme Court reversed. Section 14-2-304(1)(i) of the Colorado law allows parties to contract to any matters “not in violation of public policy.” Section 14-2-307(2) of the law provides that an otherwise enforceable marital agreement is unenforceable with regard to the provisions relating to “the determination, modification, or elimination of spousal maintenance” that are unconscionable at the time of enforcement, but makes no mention of attorney fees. The court said that allowing a review of attorney fee waivers furthers the public policy of equalizing the parties to protect spouses and children. GOVERNMENT Immigration official isn’t in position of public trust A federal immigration employee who failed to process immigration applications was not in a position of public trust such that her sentence should be enhanced for taking money and not processing immigration applications, the 10th U.S. Circuit Court of Appeals held June 26. USA v. Spear, No. 06-1296. Catherine Spear worked as a federal immigration “examinations assistant,” responsible for the intake of applications submitted by people applying for changes to their immigration status. Instead of processing the applications, she threw them out and kept the fees. When caught, she pleaded guilty to two counts of embezzlement of government funds in excess of $1,000. A Colorado federal court applied the two-level enhancement for abusing a position of public trust pursuant to Section 3B1.3 of the Federal Sentencing Guidelines and sentenced her to 14 months in prison. Reversing, the 10th Circuit held that Spear’s position lacked the authority and discretion required for an abuse of public trust enhancement. Enhancement is reserved for those with professional or managerial discretion; it requires more than engagement in ministerial tasks directed by standardized office protocols. There was no evidence that Spear used any discretionary authority to facilitate or conceal her crime, the court said. “Her theft was accomplished by being in the right place at the right time . . . not by exercising the cloak of authority to stave off inquiry of decision-making power to cover her tracks.” The “consequences of Spear’s actions,” are not relevant in determining enhancement. MILITARY LAW Marine can sue U.S. over nonmilitary-related crash A federal district court erred in holding that a U.S. marine’s Federal Tort Claims Act claim against the U.S. government was barred by the so-called Feres doctrine, according to which the government is immune from suit for injuries arising from military service, the 9th U.S. Circuit Court of Appeals held on July 2. Schoenfeld v. Quamme, No. 05-55126. Aaron Schoenfeld, a lance corporal in the U.S. Marine Corps, was off duty and riding as a passenger in a car driven by his roommate, Erik Quamme, also a marine. The car crashed into a damaged guard rail at the Marine Corps base at Camp Pendleton, Calif., and Schoenfeld lost his leg. Schoenfeld sued the U.S. government under the Federal Tort Claims Act (FTCA), arguing that the government was liable because it knew of the damaged guard rail, but did nothing to repair it. The government sought to dismiss, arguing that the claim is barred by the Feres doctrine, articulated in 1950 by the U.S. Supreme Court in Feres v. U.S., which holds that the federal government is immune from suit by members of the military for injuries they sustain incident to their military service. A California federal court granted the government’s motion. Reversing, the 9th Circuit held that the key question to answer in order to decide whether the suit is Feres-barred or not is “whether or not the service member’s activities at the time of injury are of the sort that could harm the disciplinary system if litigated in a civil action.” In fact, Schoenfeld’s activities do not implicate military discipline in any meaningful way. The court said, “The government points to several regulations of general applicability to which Schoenfeld remained subject during his weekend leave, including the rules that he wear a seatbelt in a car; that he abide by certain wardrobe requirements like wearing a belt around his pants; and that he not travel more than a certain distance away from Camp Pendleton. These do not implicate military discipline sufficiently to invoke the Feres bar because they involve ‘aspects of the operation of a military base that are not related to traditional military functions.’ “ MOTOR VEHICLES Aerosol-can inhalation is not part of DWI statute As used in the DWI statute, “intoxication” refers to the disordered state of mind caused by alcohol, not to the effects of huffing aerosol-can fumes, the New York Court of Appeals ruled on June 27. People v. Litto, No. 94. Nineteen-year-old Vincent Litto was driving in Brooklyn, N.Y., with three passengers when he “huffed” the fumes from a can of “Dust-Off.” Less than a minute later, Litto swerved into oncoming traffic and crashed into another car, killing that car’s passenger and injuring others. The grand jury indicted Litto on 14 charges, including driving while intoxicated and criminally negligent homicide by causing the death of a passenger while intoxicated. The state trial court dismissed those two charges, ruling that the ingestion of hydrocarbons in the Dust-Off does not fall within the definition of intoxication under the DWI statute. An intermediate appellate court affirmed. The New York Court of Appeals, the state’s highest court, holding that the statute’s legislative history since 1929 reveals that the state Legislature has consistently equated “intoxication” with impairment due to alcohol. And though the Legislature has extended the DWI statute to include impairment by drugs, those drugs are explicitly enumerated and do not include hydrocarbons ingested during huffing. PRODUCTS LIABILITY Learned intermediary doctrine is rejected Because it is prescription-drug manufacturers that benefit financially from the sales of prescription drugs and possess the knowledge about potential harms, there is no reason to adopt the learned intermediary doctrine as an exception to the general duty of manufacturers to warn consumers of a drug’s dangerousness, the West Virginia Supreme Court of Appeals ruled on June 27 in a matter of first impression. Johnson & Johnson Corp. v. Karl, No. 33211. Nancy Gellner died three days after beginning to take Propulsid. Her estate sued the drug’s maker, Janssen Pharmaceutica Inc., a wholly owned subsidiary of Johnson & Johnson, and Gellner’s doctor, Daniel J. Wilson, for products liability and medical malpractice, respectively. Janssen argued that under the learned intermediary doctrine, it had fulfilled its duty of warning Gellner by providing her doctor with warnings about Propulsid, but the state trial court denied its motion for summary judgment. It also denied Janssen’s motion to exclude any evidence on its supposed duty to warn. Janssen filed a writ of prohibition with the West Virginia Supreme Court of Appeals to bar enforcement of the trial court’s ruling. The West Virginia Supreme Court of Appeals, the state’s highest court, affirmed and denied the writ. Noting that only a slight majority of the states use the learned intermediary doctrine, the court declined to join them. Justifications for the doctrine � such as difficulty delivering warnings to patients and possibly interfering with doctor/patient relationships � are “outdated and unpersuasive.” “Intense proliferation of direct-to-consumer advertising” and the Internet are now common methods of giving and receiving prescription-drug information. Further, because it is the drug makers who benefit from drug sales and who have the knowledge of a drug’s possible harm, it is not unreasonable that they should provide warnings to the ultimate users of their products.

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