Does a lawyer have standing to enforce an opposing party’s obligation to pay attorney fees under the terms of a client’s settlement? The answer isn’t as obvious as it may seem.

And it may come as a surprise to some Illinois lawyers that a state court hasn’t squarely decided that issue until recently.

The question was presented to the Illinois Appellate Court in a small claims case, Law Offices of Colleen M. McLaughlin v. First Start Financial Corporation.

McLaughlin represented Alexandria Kondenar in an employment discrimination action against First Star Financial, David Johnson and Damon Dumas.

In 2008, McLaughlin negotiated a settlement on behalf of Kondenar. Under the terms of the settlement, Star Financial and its co-defendants were to pay McLaughlin the firm’s attorney fees in two installments, each in the amount of $12,500.

The defendants paid the first installment in full. However, the second payment was for only $6,000.

McLaughlin filed a claim for breach of contract in the Cook County Circuit Court, seeking to recover the remaining $6,500.

The defendants argued that McLaughlin lacked standing to enforce the terms of its client’s settlement agreement. After all, Kondenar, not the law firm, was the real party to the contract, the defendants asserted.

The trial court denied the defendants’ motion to dismiss and granted the law firm judgment in the amount of $6,500.

The defendants’ appeal had the Illinois Appellate Court searching for authority as to whether the trial court had it right on the standing issue. It could find none. While it is well-established in Illinois that an attorney has standing to maintain a suit for attorney fees as a party in interest in divorce proceedings, the issue hadn’t been squarely addressed in other contexts.

And allowing McLaughlin to sue in this case would seem to be contrary to the tried and tested rule that only a party to a contract, or one in privity with a party, may sue on a contract.

But ultimately the court found dispositive the fact that the settlement agreement specified the payment of fees to McLaughlin, as well as the fact that the client’s lawyer signed the agreement on behalf of the firm.

“The agreement clearly provides for separate payments of attorney fees to The Law Offices of Colleen M. McLaughlin as part of the settlement,” the court explained. “The signature on behalf of The Law Offices of Colleen M. McLaughlin indicates that the law office itself was a party to the agreement, as the signature was not on behalf of the client but rather on its own behalf. …  Thus, The Law Offices of Colleen M. McLaughlin was a proper party to the agreement and had standing to maintain this cause of action against all defendants.”

– Pat Murphy

patrick.murphy@lawyersusaonline.com

If you spend your work day cutting the tops off 55-gallon drums, perhaps it’s time to ask yourself where it all went wrong. For instance, you might want to consider whether your regular enjoyment of marijuana has something to do with your place in the food chain.

Alas, these and other profound questions probably never crossed the mind of Greg Prock before he took an acetylene torch to a 55-gallon barrel at Bull Shoals Landing. The marina is on Bull Shoals Lake, an aquatic playground in the heart of the Arkansas Ozarks

Prock worked at the marina as a welder and general laborer. On Nov. 1, 2007, Prock and a co-worker, Matt Edmisten, were tasked to cut the tops off two 55-gallon barrels that had previously contained marine oil.

Prock’s boss, Steve Eastwold, swears that he had previously instructed Prock that the only safe way to cut the top off a barrel was by using a pneumatic air chisel. Prock denies that he was given this instruction and chose the torch instead, presumably because it was faster.

In any event, Prock use of the torch triggered an explosion and he and Edmisten went up in a ball of flame. Fortunately, the two workers were able to limit their injuries by jumping into the nearby lake, though Prock claims that he still experiences heat sensitivity due to the burns on his hands.

Both Prock and Edmisten were rushed to the hospital for treatment of their injuries. Unfortunately for both men, blood tests indicated the presence of marijuana in their systems and Bull Shoals Landing used this evidence to defeat their claims for workers’ compensation benefits.

The evidence as to whether Prock and Edmisten were actually under the influence at the time of the accident was inconclusive. Although Eastwold would later testify that Prock and Edmisten were acting suspiciously before the accident, the two employees denied taking any drugs that day.

Prock later testified he frequently smoked marijuana, explaining that he smoked up to three or four times a week. If he smoked during the week, it was after work hours.

Prock vehemently asserted that he had stopped smoking marijuana two weeks prior to the accident, explaining that he had an eye on a job opening at a local welding shop and knew that he would have to pass a drug test to get the position.

Prock’s problem was that, under Arkansas law, the positive drug test after the accident raised a presumption that his accident and injury at work were substantially the result of his use of marijuana.

He was unable to rebut the presumption according to the state’s workers’ compensation commission, so his claim was denied.

Yesterday, the Arkansas Court of Appeals upheld that decision:

It was not incumbent upon Bull Shoals Landing to produce evidence that Prock was impaired prior to the explosion. Rather, once the presumption arose, it was Prock’s burden to prove that the explosion and resulting injury were not substantially occasioned by Prock’s use of marijuana. In finding that Prock failed to rebut the presumption, the Commission made specific credibility determinations, whereby the Commission resolved conflicting evidence and arrived at the true facts. The Commission could reasonably conclude that Eastwold’s testimony concerning the events leading up to the accident was worthy of belief, whereas testimony by Prock and Edmisten was not. (Prock v. Bull Shoals Landing) 

– Pat Murphy

patrick.murphy@lawyersusaonline.com

The Communications Decency Act presents a formidable obstacle for those attempting to sue website operators for objectionable posts by third parties. Yesterday, a federal judge in Kentucky showed the way for breaching the Act’s immunity provision in a defamation and invasion of privacy case brought by a member of the BenGals cheerleading squad.

According to U.S. District Judge William O. Bertelsman’s decision in Jones v. Dirty World Entertainment Recordings, a website operator is “responsible” for offensive content within the meaning of the Act when it in some way “specifically encourages” the development of “what is offensive about the content.” 

The judge reached this conclusion in a lawsuit brought by Sarah Jones, who is a teacher at Dixie Heights High School in Edgewood, Kentucky. Jones also happens to be a member of the BenGals, the cheerleading squad for the Cincinnati Bengals. 

Professional cheerleaders naturally attract a lot of attention, both wanted and unwanted. In 2009, Jones was appalled to find that her movements around Cincinnati were being tracked by visitors to the website “the dirty.com.” 

The website is operated by Hooman Karamian a/k/a Nik Richie through his Arizona business, Dirty World, LLC. Richie’s website invites and publishes comments by individuals who visit the site. Richie responds to the posts and publishes his own comments on the subjects under discussion.

As the name suggests, sex is the primary subject of discussion at the dirty.com. Moreover, as Judge Bertelsman observed, the “principal content of ‘the dirty.com’ website is not only offensive but tortious.” 

While sex appeal is surely what cheerleaders are all about, Jones didn’t like the fact that rumors of the worst kind were posted about her on the dirty.com.

On Oct. 27, 2009, one visitor posted a message stating:

Nik, this is Sara J, Cincinnati Bengal[sic] Cheerleader. She’s been spotted around town lately with the infamous [kicker] Shayne Graham. She also has slept with every other Bengal Football player. This girl is a teacher too! You would think with Graham’s paycheck he could attract something a little easier on the eyes Nik!

On December 7, 2009, an even more salacious post was made to the dirty.com: 

Nik, here we have Sarah J, captain cheerleader of the playoff bound cinci bengals.. Most ppl see Sarah has [sic] a gorgeous cheerleader AND high school teacher. . yes she’s also a teacher . . but what most of you don’t know is . . Her ex Nate . . cheated on her with over 50 girls in 4 yrs. . in that time he tested positive for Chlamydia Infection and Gonorrhea . . so im sure Sarah also has both . . what’s worse is he brags about doing sarah in the gym . . football field . . her class room at the school where she teaches at DIXIE Heights.

In response to this particular post, Richie posted: “Why are all high school teachers freaks in the sack? – nik.”

Concerned for her job, Jones repeatedly e-mailed the site and asked that the posts be removed, but her requests were ignored.

So she sued Richie and Dirty World in the U.S. District Court for the Eastern District of Kentucky, seeking damages for defamation and invasion of privacy.

The case landed in the lap of Judge Bertelsman. According to the judge, Richie and his company have admitted that facially defamatory and privacy-violating posts were made to their website concerning Sarah Jones.

However, the defendants claimed immunity under the Communications Decency Act.

Section 230 of the CDA generally immunizes providers of interactive computer services against liability arising from content created by third parties.

However, there is one catch: The grant of immunity only applies if the service provider is not also an “information content provider,” which is defined as someone who is “responsible, in whole or in part, for the creation or development of” the objectionable content.

The Act’s immunity provision has proved to be a tough nut to crack for many a personal injury attorney.

Judge Bertelsman in his decision Tuesday provided a glimmer of hope for plaintiffs faced with a website operator’s assertion that it is not an “information content provider” and, therefore, entitled to absolute immunity under the CDA.

Finding no controlling 6th Circuit authority, Bertelsman borrowed from the 10th Circuit’s decision in FTC v. Accusearch (570 F.3d 1187) to find the controlling test for determining immunity under the CDA.

In Accusearch, the 10th Circuit said that a “service provider is ‘responsible’ for the development of offensive content only if it in some way specifically encourages the development of what is offensive about the content.”

With Bertelsman’s adoption of this test, the assertion of absolute immunity by Richie and Dirty World was in deep trouble.

The judge held that “the defendants here, through the activities of defendant Richie, ‘specifically encourage development of what is offensive about the content’ of ‘the dirty.com’ website.”

In explaining his decision that Richie and Dirty were not immune under the CDA, the judge first underscored the obvious point that “the name of the site in and of itself encourages the posting only of ‘dirt,’ that is material which is potentially defamatory or an invasion of the subject’s privacy.”

The judge also found problematic for Richie and his claim of immunity the manner by which he manages his site. As explained by the judge, in Richie’s capacity as editor of the site, he selects a small percentage of comments to be posted and adds a tagline. While Richie reviews a post, he does not verify its accuracy. Moreover, Richie is the one to decide whether a particular post should be removed when someone objects.

“Most significantly, Richie adds his own comments to many postings,” the judge said. “In these comments, he refers to ‘the fans of the site’ as ‘the Dirty Army.’ He also adds his own opinions as to what he thinks of postings.”

In deeming Richie a “responsible” service provider under CDA, Bertelsman concluded with this parting shot: 

One could hardly be more encouraging of the posting of such content than by saying to one’s fans (known not coincidentally as “the Dirty Army”): “I love how the Dirty Army has war mentality.”

 – Pat Murphy

patrick.murphy@lawyersusaonline.com

Here’s a story that should give pause to any woman who blindly trusts that a husband or boyfriend will forever keep private those intimate photographs taken in a moment of whimsy.

Yesterday, the Minnesota Court of Appeals reversed the harassment conviction of James Charles Pegelow Jr., who in an ugly attempt at revenge posted nude photos of his ex-girlfriend, K.Z., in the men’s restroom of her place of employment.

According to the court, the state failed to prove that the resident of Columbus, Minn., actually committed a crime by posting the photos. The court held that, without the predicate offense, there could be no violation of the state’s harassment law.

“[T]he jury’s determination that Pegelow committed an unlawful act necessarily was based on speculation, rather than evidence, and the conviction must be reversed,” the court said.

Presumably, at one time there was genuine affection between Pegelow and K.Z. However, their relationship ended for reasons unclear in August 2009.

Unfortunately for K.Z., before their relationship ended she made a couple of really bad decisions. First, K.Z. had nude and partially nude photographs taken of herself. Then, she gave the photos to Pegelow in a sorry expression of love.

All too predictably, Pegelow was bitter over the breakup and made plans to exact his pound of flesh by using K.Z.’s revealing photos.

K.Z. worked at a store in Forest Lake. At around 7:00 p.m. on Jan. 29, 2010,  an employee of the store found the photographs of K.Z. posted in the men’s restroom. The store manager notified K.Z. and returned the photographs to her.

Naturally, K.Z. was upset and embarrassed. She called the police and named Pegelow as the probable perpetrator of the foul act. Sure enough, the store’s security tape showed Pegelow walking into the store at approximately 5:18 p.m., entering the men’s restroom, and leaving the store at approximately 5:26 p.m.

The state charged Pegelow with gross-misdemeanor harassment under §2(a)(1) of the state’s harassment law. The law makes it a crime when an individual “directly or indirectly manifests a purpose or intent to injure the person, property, or rights of another by the commission of an unlawful act.”

A jury convicted Pegelow, but it turns out that there was a fatal flaw in the state’s case.

In Pegelow’s appeal, the Minnesota Court of Appeals had to decide in the first instance whether §2(a)(1) obligated the state to prove that he committed “an unlawful act” distinct from the offense of harassment as defined in other parts of the law.

The court held that the state indeed was required to prove the commission of a predicate crime, observing that “if the unlawful-act requirement is satisfied by an act that only meets the definition of harass, the statutory language [in §2(a)(1)], ‘by the commission of an unlawful act,’ is rendered superfluous.”

The court’s holding that §2(a)(1) requires evidence of an independent unlawful act left the state’s case against Pegelow flapping in the wind.

“The state here was required to introduce some evidence from which the jury could reasonably find that Pegelow’s act was unlawful,” the court said. “We offer no opinion as to whether such evidence could have been presented because it is undisputed that the state did not indicate if or how the act of posting photographs was unlawful and offered no evidence from which the jury could so conclude.” (Minnesota v. Pegelow)

So under this court’s rendering, it’s up to the state legislature to come up with a law that would make criminal Pegelow’s act of posting K.Z.’s embarrassing photos in a public restroom.

But is such legislative action really necessary?

As the reversal of Pegelow’s conviction points out, there will always be gaps in the law that leave us unprotected from our poor choices. Rather than adding another chapter to the code books, perhaps it’s high time to reemphasize that the burden is on the individual to avoid engaging in behavior that opens the door to such embarrassment.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

A New York City man probably didn’t give much thought when he called two brothers “thieves” in an e-mail. But a state court has decided that such off-hand comments are actionable.

The record in Suarez v. Angelet is pretty sparse. All we really know is that John G. Angelet allegedly sent an e-mail that included a comment that “Gerry and [Joseph Suarez] are thieves as far as I am concerned.”

Joseph Suarez somehow learned about the e-mail and decided to sue Angelet in New York state court for libel and intentional infliction of emotional distress.

The trial court dismissed the lawsuit, concluding that the statement was an expression of “pure opinion” and, therefore, did not constitute libel.

The New York Appellate Division late last month decided that the trial court had jumped the gun, explaining that the “overall context” of a statement must be examined in order to determine whether it is nonactionable opinion.

“[D]epending on the exact context, both the statement ‘John is a thief’ and the statement ‘I believe John is a thief’ might, in fact, constitute actionable defamation,” the court explained.

The court observed that the tone of Angelet’s brief e-mail “is straightforward and declaratory, and does not appear to be intended as a ‘juvenile [attempt] to achieve humor.’”

Accordingly, the court concluded that “the ‘verbal context’ in which the allegedly defamatory statement is imbedded does not warrant the conclusion, as a matter of law, that an average reader would have believed that the defendant’s assertion that the plaintiff was a ‘thief’ was meant in jest.”

While the New York Appellate Division’s decision has a logical appeal, it certainly hamstrings trial courts in their efforts to clear their dockets of the frivolous and near-frivolous lawsuit. 

There are probably countless statements made in e-mails every day that, if pursued, would be entitled to survive dismissal under the appellate court’s analysis. All you need is a thin-skinned plaintiff or a defendant with deep enough pockets to make a lawsuit enticing.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

If there was ever someone entitled to be shielded by a 50-year protection order, it would be Vanessa Rew. Incomprehensible as it may seem, Rew’s ex-husband thinks the order is unjust and wants it lifted on constitutional grounds. Thankfully, the Minnesota courts see things differently.

In 2008, the Minnesota legislature amended the state’s domestic abuse statute to permit the extension of a protection order for up to 50 years. The virtual lifetime extension is authorized upon the court finding that the abusing party has violated a prior or existing order for protection on two or more occasions, or that the petitioner has been issued two or more prior protection orders against the same party.

In 2010, Rew applied for a 50-year extension of an existing protection order against her ex-husband, James Allen Bergstrom, in Washington County District Court.

The evidence against Bergstrom was overwhelming.

Bergstrom and Rew were married in 1994 and had two children during their marriage. Rew alleged that Bergstrom began physically abusing her three years into the marriage while she was pregnant with the couple’s first child.

According to court records, in 2002 Bergstrom pleaded guilty to assault after Rew claimed that he severely beat her, dragged her down stairs, choked and punched her, and knocked her out by slamming her head into a faucet.

After that incident, Rew obtained a protective order on behalf of herself and the children. It only took four months for Bergstrom run astray and he pleaded guilty to a misdemeanor violation of the protection order.

Afterwards, the parties reconciled and remained together until 2007. Rew alleged that throughout this period Bergstrom beat and threatened her. So Rew obtained a one-year protection order in June 2007.

Bergstrom was subsequently arrested for stalking Rew in a rental car with a camera and binoculars. In December 2007, he pleaded guilty to violating Rew’s new order.

Several months later, Rew reported to police that Bergstrom accessed her e-mail accounts. So Bergstrom once again found himself in the position of pleading guilty to violating a protection order.

Before the 2007 order expired in 2008, Rew obtained a new one-year protection order that encompassed the children. The 2008 order temporarily suspended Bergstrom’s parenting time.

In 2009, the 2008 protection order was extended from one year to two years.

According to court records, Bergstrom spent most of 2009 incarcerated for violating terms of probation by stalking and harassing another woman and tampering with his electronic monitoring system. He was released from Minnesota Correctional Facility-Stillwater in October 2009. But it only took him several months to find himself in trouble once more.

In April 2010, Bergstrom was arrested and charged with violating the 2008 protection order after he allegedly showed up at Rew’s church retreat and refused to leave. Bergstrom was incarcerated in the Washington County jail until June 2010 when the charge was dropped.

This last incident caused Rew to apply for the 50-year extension, which a state trial court had little trouble granting.

Under the court’s order, Bergstrom is prohibited from: (1) having any contact with Rew or the children except for purposes of coordinating parenting time; (2) coming within 120 yards of Rew’s residence, place of work, or church; (3) coming within 120 yards of the children’s school or childcare location; (4) coming within 50 yards of Rew or the children in public places; or (5) possessing a firearm.

Despite the clear evidence supporting the appropriateness of the order, Bergstrom appealed to have it vacated. He raised a variety of constitutional challenges, in particular arguing that the 50-year extension violated due process and his First Amendment rights.

Last week, the Minnesota Court of Appeals turned aside these arguments and upheld a protective order which won’t expire until 2060.

With respect to Bergstrom’s free speech claims under the First Amendment, the court recognized that that the state has a “significant interest” in protecting the victims of domestic violence and that someone who has satisfied the statutory criteria for the issuance of a 50-year extension “has demonstrated a pattern of harmful and invasive conduct that invites the lawful regulation of the state.”

In sum, the court concluded that application of the 50-year extension to someone in Bergstrom’s shoes burdens no more speech than necessary to serve a significant government interest.

Bergstrom also argued that the extension violated due process because he was not provided notice of the collateral consequences of pleading guilty to his prior protection order violations.

This argument went nowhere with the court.

“The extension of [Rew’s protective order] against [Bergstrom] is not a criminal sanction; it is a remedial civil order issued at the discretion of the district court, intended to protect respondent and the children from future abuse. As such, it is not a direct consequence flowing ‘definitely, immediately, and automatically from the guilty plea.’ Therefore, [Bergstrom] was not entitled to notice that pleading guilty to violating [a protective order] could give rise to the extension of [protective order] as a collateral consequence,” the court said. (Rew v. Bergstrom) 

– Pat Murphy

patrick.murphy@lawyersusaonline.com

It always comes down to the cash. That point was illustrated in a decision handed down last week by a New Jersey federal judge who had to decide whether two warring law firms should share $2.45 million in fees allocated as part of a class action settlement.

The dramatis personae in the fee fight were Bruce Nagel and David Mazie, two of New Jersey’s most heralded personal injury attorneys. At one time, the lawyers were partners in the same firm, Nagel, Rice & Mazie.

In 2006, they became embroiled in what has been described as a “bitter” which resulted in the dissolution of the firm. Each lawyer started his own firm. Nagel formed Nagel Rice, and Mazie formed Mazie Slater Katz & Freeman. Both law firms are located in Roseland, New Jersey.

While Nagel and Mazie were in the process of dissolving their old firm, they were also contemplating class actions against insurance providers that had denied health insurance coverage for the treatment of eating disorders.

Neither attorney was about to be deterred by the implosion of their old firm, so in 2006 Nagle Rice and Mazie Slater each filed virtually identical ERISA claims on behalf of identical classes against Horizon Blue Cross Blue Shield of New Jersey and Magellan Health Services.

The cases landed before Judge Faith S. Hochberg of the U.S. District Court for the District of New Jersey, who didn’t appreciate the fact that Nagel’s and Mazie’s firms couldn’t work together.

According to the judge, Mazie declined an invitation by Nagel to cooperate in the litigation. Instead, Mazie threatened to sue Nagel for tortiously interfering with his right to be lead counsel in the Horizon case.

Judge Hochberg would later write that the “intense, palpable hostility” between the Mazie and Nagel legal teams resulted in “an enormous and unnecessary duplication of work and expense as the two firms litigated the same case in parallel actions. Judicial economy took a back seat to the law firm war.”

While Mazie Slater was “vehemently” rejecting the insurance companies’ settlement offers, Nagel Rice ultimately settled its case in 2008. Under the terms of the settlement, Horizon and Magellan agreed to provide $1.2 million in reimbursements for past denied claims and parity status for eating disorder treatment in the future.

In addition, the insurers agreed to the payment of up to $2.45 million in attorney fees.

The court approved the settlement secured by Nagel Rice and virtually all members of the class joined the settlement. Left with no class, Mazie dismissed his case without raising any objections to the final settlement.

Noting Mazie’s passive acceptance of the Nagel Rice settlement, Judge Hochberg would observe that the “venom between these two attorneys was so strong that the absence of any objection by Mr. Mazie to the substance of Mr. Nagel’s settlement speaks eloquently that it was fair and in the best interests of the class suffering from eating disorders.”

But Mazie still wanted a cut of the pie and filed an application for 50 percent of any attorney fees awarded Nagel Rice.

Last week, Judge Hochberg slapped down that request, determining that Nagel Rice would be entitled to keep whatever is ultimately determined to be a reasonable fee in the case.

First, the judge rejected Mazie Slater’s contention that it was entitled to a portion of the fees under ERISA’s fee-shifting framework.

“Mazie Slater did not proceed to litigate [its case] to completion even though it surely could have; rather, it decided to dismiss that action with prejudice after the Class Settlement was finally approved and its class abandoned it. …

“Mazie Slater became a law firm with neither a client nor a class. In short, Mazie Slater did not achieve ‘some degree of success’ on the merits, and is therefore not entitled to fees under a fee-shifting analysis,” the judge said.

In addition, the court decided that Mazie Slater was not entitled to fees under a common fund approach.

“Mazie Slater’s litigation tactics did not, as it asserts, drive Defendants to the bargaining table. Rather, the firm’s vehement opposition to [a settlement template followed in a similar case] drove the Defendants to negotiate a full and fair resolution with Nagel Rice instead. …

“This Court ‘credit[s] Class Counsel’s achievement in procuring a favorable settlement, something [Mazie Slater] ha[s] not done.’ Mazie Slater does not earn a fee for ‘contributing’ to a type of settlement that it declared it would ‘never, ever’ entertain. Rhetoric has consequences,” Hochberg wrote. (Drazin v. Horizon Blue Cross Blue Shield of New Jersey)

– Pat Murphy

patrick.murphy@lawyersusaonline.com

James Sak is a retired Chicago police officer whose best pal is Snickers, a part pit bull certified service dog that helps the severely disabled Vietnam vet maintain a quality of life.

The city of Aurelia, Iowa, sees Snickers as a threat to Sak’s neighbors and wants to ban the dog.

Last Wednesday, a federal judge decided that it is likely that enforcing the city’s existing pit bull ban would violate Sak’s rights under the Americans with Disabilities Act, so the good news is that Snickers is back home.

The fate of Snickers was placed in question in November when Sak and his wife, Peggy Leifer, moved to Aurelia from Chicago. The couple made the move to care for Leifer’s elderly mother, a long-time Aurelia resident.

Sak himself has health issues. In 2008, he suffered a hemorrhagic stroke, which has left him permanently disabled, with no control over the right side of his body, and confined to a wheelchair.

Fortunately, Sak has Snickers. The part pit bull, part black lab, part boxer is five-and-half years old. Sak bought Snickers from a “backyard breeder” as a pet, and now the dog is entrenched as a member of the family.

Just as important, Snickers helps the disabled Sak get along in his daily activities. After Sak suffered his stroke, Snickers was trained and certified by Sak’s physical therapist as a service animal to assist Sak with everyday tasks.

Now, Snickers has the diploma to prove his utility. On Nov. 28, 2011, Snickers became a “Certified Service Animal” on the National Service Animal Registry.

According to Sak, Snickers is indispensable because the dog helps him when he walks short distances within his home, recognizes when he suffers tremors on the right side of his body, lays on the affected part of the body to stop the tremor, and prevents him from falling should he experience tremors or balance problems.

Sak claims that Snickers is a sweetie, with absolutely no history of aggression. Unfortunately, that didn’t stop 36 residents of Aurelia from signing a petition to enforce the city’s pit bull ban against Snickers.

The northwest Iowa town of Aurelia has a population of only 1,100, so when 36 townsfolk get together to do anything, the city council tends to listen.

Sak and Leifer were asked to attend an Aurelia City Council meeting on Nov. 21, 2011, to answer why the city’s ordinance prohibiting the possession of a pit bull should not be enforced against Snickers. Sak and Leifer brought Snickers to the meeting. While his fate was being debated, Snickers sat quietly at their feet, crying or whining quietly at the mention of his name.

Despite the uncontradicted testimony that Snickers was critical for Sak’s physical and emotional well-being, the city council on Dec. 14 voted 3-2 to ban Snickers from the town.

But Sak was not about to let Snickers go without a fight. While boarding his dog out of town, Sak filed a motion for a preliminary injunction in the U.S. District Court for the Northern District of Iowa, contending that the city’s pit bull ban and refusal to grant an exception for Sak’s registered service animal violate the “public entities” provisions of the Americans with Disabilities Act (ADA).

The city countered that there was no violation of the Act because its ordinance does not prevent Sak from having a service animal of a different breed.

U.S. District Judge Mark Bennett rejected the city’s argument and granted Sak his requested preliminary injunction on Wednesday.

“When a service dog is excluded by a city’s breed-specific pit bull ban, that dog might have a problem but for Congress’s passage of the ADA and the Attorney General’s regulations and guidance on service dogs and breed limitations,” the judge explained. “The ADA was enacted ‘to provide a clear and comprehensive national mandate for the, elimination of discrimination against individuals with disabilities.’ Included within this mandate was Congress’s intention to ensure that disabled individuals, like Sak, are not separated from their service animals.”

The judge concluded that, “whatever the legal bark of the City’s Ordinance prohibiting pit bull dogs as a general matter of public health and safety, it is sufficiently likely that enforcement of that Ordinance against Snickers would take such an impermissible bite out of Title II of the ADA and the regulations and guidance promulgated to implement it that a preliminary injunction is warranted.”

In addition to finding that enforcement of the ordinance against Snickers “is causing and will cause irreparable harm to Sak,” Judge Bennett observed that “the public interest in allowing Sak to keep and use his certified and registered service dog, Snickers, substantially outweighs the City’s interest in banning Snickers. This is one small, but vital step for Sak, one giant leap for pit bull service dogs.” (Sak v. City of Aurelia)

So 2012 starts on a heart-warming note, with Snickers back home. Although Judge Bennett has yet to issue his final ruling on the matter, his ruling in favor of injunctive relief certainly suggests a happy ending for Sak and Snickers.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

A Baltimore drug dealer thought he was being pretty clever when he hid a baggie of cocaine by tying it around his genitals.

He must have had serious second thoughts when a police officer produced a knife to cut the baggie from his private parts.

While guys squirm in their chairs at the thought of the drug dealer’s predicament, it turns out that his placement of the baggie actually created an additional Fourth Amendment tripwire for police.

Joseph Edwards’ farcical encounter with Baltimore police on the evening of Jan. 14, 2009, stemmed from a complaint filed earlier in the day by two women who claimed the drug dealer threatened them with a gun.

While an arrest warrant was being prepared, Detective Dennis Bailey and three other officers were dispatched to locate Edwards. At around 11:15 p.m., the officers spotted Edwards walking down a residential street.

The officers detained Edwards and placed him in handcuffs. Upon confirming that the arrest warrant had been signed, Bailey informed Edwards that he was under arrest.

After a patdown for weapons, Bailey decided to search Edwards more closely for contraband. Pulling Edwards’ pants and underwear away from his body, officers shined a flashlight down the arrestee’s front and back.

As they were looking inside Edwards’ underwear, the officers saw that there was a plastic sandwich baggie tied in a knot around Edwards’ penis. The officers could see that the sandwich baggie contained smaller blue ziplock baggies.

Now, drug dealers have taken to hiding drugs in all sorts of unpleasant places, but tying one’s stash around one’s penis seems to be a new one. Experienced criminal defense attorneys may be able to say that, to the contrary, this is done all the time, but Edwards’ case is the first one this corner has seen involving the Fourth Amendment implications of using one’s manhood to hide drugs.

Surely Edwards should have considered the practical implications of his plan. There must have been more than a little second-guessing on his part when the officers decided that the only way to get the sandwich bag was to cut it (the baggie, not the penis) off with a knife.

While another officer held Edwards’ pants and underwear open, Bailey put on gloves, took a knife that he had in his possession, and cut the sandwich baggie off Edwards’ penis with the knife.

Edwards could breathe a sigh of relief when the surgery was completed successfully with no harm to his man parts. But there was the little matter that the sandwich baggie turned out to contain a total of 43 of the blue ziplock baggies. The blue baggies in turn held a total of 2.98 grams of cocaine base.

The district court denied Edwards’ motion to suppress and sentenced him to 120 months’ imprisonment upon his conditional guilty plea to a charge of possession with intent to distribute cocaine base.

As luck would have it, Edwards’ appeal found its way before a squeamish panel of the 4th Circuit that last week concluded that Detective Bailey’s action of cutting away with a knife was unreasonable under the 4th Amendment.

“We conclude that Bailey’s use of a knife in cutting the sandwich baggie off Edwards’ penis posed a significant and an unnecessary risk of injury to Edwards, transgressing well-settled standards of reasonableness,” the court said.

The court explained that the “fortuity that Edwards was not injured in the course of this action does not substantiate its safety. The district court found that the entire search took place at ‘approximately 11:30 [at night], in a dark area.’ While the officers used a flashlight when searching inside Edwards’ underwear, they did not continue to use the flashlight when Bailey removed the baggie containing the suspected drugs with his knife.” (U.S. v. Edwards)

– Pat Murphy

patrick.murphy@lawyersusaonline.com