Wednesday, February 20, 2013

High Court Bites Florida

Every dog has its day. But, usually not before the United States Supreme Court. Unless it's Aldo, drug-sniffing dog for the Liberty County Sheriff's Office in Florida.

On Feb. 19, Aldo and his K-9 handler William Wheetley won a landmark case as the federal High Court reversed Florida's Supreme Court, and found that Aldo's drug "sniff(ing) is up to snuff" -- reciting the court's own doggerel.

The case involved a Florida man who was driving in his truck, complete with open can of beer in the cup holder, and was pulled over by the deputy for expired plates. The deputy noticed the man was unusually nervous and asked him if he could search his pickup. The man refused. The deputy got K-9 Aldo and walked around the truck. The German shepherd, trained to sniff out heroin, cocaine, pot, ecstasy and methamphetamine, alerted -- signaling with specific behaviors -- that it smelled drugs on the truck's door handle. The deputy searched the truck and found illegal chemicals used to make meth. The man then admitted he routinely "cooked" meth and "could not go more than a few days without" using the highly addictive drug. In court the man's attorney argued that the deputy didn't have "probable cause" to search the truck, even though the drug-sniffing dog had smelled meth chemicals. The trial court disagreed, and the man pleaded the equivalent of guilty, and appealed to the Florida Supreme Court.

Florida's top court agreed with the man, saying the cop had insufficient cause to search the truck, and the dog's nose alone couldn't be relied on. They didn't go so far as to require the dog itself to testify, but almost. They required a ridged test to show the dog's nose was reliable. The Florida court said prosecutors "must present the dog's training and certification records, an explanation of the meaning of the particular training and certification, field performance records (including any unverified alerts) and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog's reliability." The court said the "dog's performance history" was critical, especially whether the K-9 "has alerted in the field without illegal contraband having been found."

Well, the U.S. Supreme Court showed the Florida judges who's top dog. The justices said Aldo had gone through extensive training as a drug sniffer. The court said the Florida Supreme Court set up a checklist for determining probable cause that was unworkable and against the High Court's own "flexible" standard, which says a reasonable person looking at the facts can determine whether "evidence of a crime is present." In other words, the dog's behavior was enough to warrant the search. "The Florida Supreme Court flouted this established approach to determining probable cause," the justices wrote. They made intellectual fun of the Florida court's logic, saying it was requiring all this history on each dog's sniffing record, but "one wonders how the court would apply its tests to a rookie dog."

You can almost hear them panting with ridicule in their opinion.

(Postscript: In reading the official biographies of justices on the U. S. Supreme Court's Web site, all are rich in legal pedigrees. None, however, mentions whether he or she is a dog owner.)

Friday, February 15, 2013

Farrah, Warhol and Ryan O'Neal

A Los Angeles court has just handed actor Ryan O'Neal a monster legal win, one that could help him add to his $12 million net worth.

The Court of Appeal for the State of California, Second Appellate District, known among the lawyer-class as one of the brainiest in the state, has ruled that Mr. O'Neal could go ahead with his defamation suit against Farrah Fawcett's former personal assistant. As you might recall Mr. O'Neal and Ms. Fawcett, a TV personality and sex kitten of the 1970s, were friends and intimates for decades. Mr. O'Neal sued Craig Nevius for claiming that O'Neal committed a crime (a no-no in media law unless you have a police report). He claimed the actor stole a painting of Fawcett by Andy Warhol. A signed martini napkin by Warhol is gold, and this painting is worth $30 million. (The University of Texas claims Ms. Fawcett bequeathed it to the university and Mr. O'Neal disputes it. That's a separate lawsuit.)

Mr. O'Neal says the painting, one of two Warhol works of beauty Fawcett, wasn't stolen by him because he owns it. He sued Nevius for his defaming comments. Nevius defended himself by filing a motion used by newspapers called an anti-SLAPP motion. Essentially, an anti-SLAPP defense permits a person to speak his mind on public issues without fear of being sued. But, the state's anti-SLAPP law has a hole, which says if the wronged litigant has a good chance of winning his case for defamation, the matter should be heard in a trial. That is where O'Neal v. Nevius is now likely headed -- although our money's on a pretrial settlement in which Nevius begs for mercy and hands over what pitiful valuables he has.

Two of three appellate justices who heard the case sided with Mr. O'Neal. "We find the trial court was correct in its determination that O'Neal presented sufficient evidence of Nevius's malice to demonstrate O'Neal had a probability of prevailing on his complaint," the justices said in their ruling Feb. 14th. The justices went so far as to say Nevius "asserted that O'Neal was a fraud, a thief and a criminal" and that Nevius "hates O'Neal so much." The justices said Mr. O'Neal could be able to prove "actual malice" by Nevius, a legally damning statement in a defamation case.
One justice, however, sided with Nevius in a weak dissent. For naught, though. As the late-city attorney of Riverside, California, John Woodhead, once informed the then-Assistant District Attorney of Riverside County and later Superior Court Judge Jay Hanks, after Hanks tried to use a "dissenting opinion" to sway the Riverside City Council: "Let me remind the assistant district attorney, dissent means you lose."

What I particularly liked about this ruling is it is a strong reminder to bloggers on the Web who fashion themselves neo-journalists. Think you can say anything about people, especially celebrities such Mr. O'Neal -- who for this case was ruled a "public figure" under The New York Times v. Sullivan (1964)? No, you surly cannot. The old newspaper-bound laws of libel and defamation of character have gone digital.