Intel has acquired Kno, a software provider for interactive textbooks. “[T]he main idea behind Kno is that the books are not only digitised but also include additional features to help students and teachers assess their progress, share information with others and generally get more engaged in the content,” wrote TechCrunch’s Ingrid Lunden and Rip Empson about the acquisition. They added

Although the pricing of the deal remains unclear, we have learned that the entire Kno team will be joining Intel as a result of the acquisition — with one notable exception. Osman Rashid, the co-founder and CEO (who is also a co-founder of Chegg), will not be joining the company.

In announcing the deal, John Galvin, VP of the Sales and Marketing Group at Intel Corporation and general manager of the World Ahead Program, explained

Intel has acquired Kno, a leading education-software company whose guiding mission is to change the way students learn. Much like Intel, Kno believes engagement is key to student success.

The acquisition of Kno boosts Intel’s global digital content library to more than 225,000 higher education and K-12 titles through existing partnerships with 75 educational publishers. Even more, the Kno platform provides administrators and teachers with the tools they need to easily assign, manage and monitor their digital learning content and assessments.

My hunch is that the demand for more interactive law eBooks, let’s call ’em “2nd gen Law eBooks”, will come from users who have become accustomed to interactive textbooks during the K through college educational experiences, if not sooner than then. — Joe

There is an interview with Judge Richard Posner that was published on The Daily Beast last Thursday.  Judge Posner states the obvious when he says he likes to write.  We learn that he isn’t interested in being considered for the Supreme Court:

At this point in your career, would you like to sit on the Supreme Court?

No. First I’m too old. I’m 74 and they don’t appoint people my age.

But you sound peppy.

Well, I don’t like the Supreme Court. I don’t think it’s a real court. I think of it as basically…it’s like a House of Lords. It’s a quasi-political body. President, Senate, House of Representatives, Supreme Court. It’s very political. And they decide which cases to hear, which doesn’t strike me as something judges should do. You should take what comes. When you decide which case to hear it means you’ve decided the cases ahead of time.

Judge Posner’s view of the Supreme Court is interesting, but that’s not the real news for me.  As to the matter of pets he says:

Well, I’m a very big cat person. Used to like dogs, then I switched. I have a big crush on my current cat. I like animals generally. I’m very soft about animals. My cat is a Maine Coon named Pixie. What’s unusual about her, besides being beautiful and intelligent, but she’s affectionate. Very unusual in cats. She likes to give us nuzzles and be with us. Her little face falls if either of us leaves the house. She’s very social. She appears to recognize members of our families, kids and grandchildren. She’s a real sweetie. It’s one of the reasons I work at home a lot now. The nature of my work is such that I don’t really have to be in the office unless I’m hearing cases. I spend probably at least half the time at home working. Everything I need, I have with me or have electronic access to. One reason is that the cat wants us at home.

Well, meow.

Mark

From the YouTube video description:

David Wolfson, partner at Milbank, Tweed, Hadley & McCloy and chair of the firm’s professional development committee, talks with Bloomberg Law’s Lee Pacchia about the Milbank@Harvard program. The week-long course at Harvard Law School and Harvard Business School takes mid-level Milbank associates through a wide range of professional development courses.

Very interesting. Can’t wait for Thomas M. Cooley Law School to offer the same sort of program. — Joe

Are MOOCs just a fad or will MOOCs settle into being a useful tool to combat the rising costs in high education? Way too soon to tell but MOOCs are “higher education’s hot and sexy topic” right now. Judith A. Pirani, a consultant at the EDUCAUSE Center for Analysis and Research (ECAR) and president of Sheep Pond Associates, has published A Compendium of MOOC Perspectives, Research, and Resources. Recommended. — Joe

You can run an in-browser emulation of Berzerk, a multi-directional shooter video arcade game released in 1980 by Stern Electronics of Chicago but avoid at all costs Evil Otto. Alternatively, you might want to play Pitfall! That game was released by Activision in 1982. At the time, it is the second best-selling game made for the Atari 2600 (after Pac-Man), with over 4 million copies sold.

Both and many more early PC-Apple games as well as some early productivity programs such as WordStar, the most popular word-processing program of the early 1980s and the grand-daddy of mark-up coding, plus a 1979 version of VisiCalc, the first-ever spreadsheet program, are available as in-browser emulations from the Internet Archive’s new Historical Software Collection.

Hat tip to Bob Ambrogi’s Retro Fun: Try Out Historical Software (LawSites post). — Joe

LexisNexis prevailed in a case from the Sixth Circuit that was released a few days ago.  The issue concerned whether the arbitration clause in a contract for access to LexisNexis databases allowed for class arbitration.  The ultimate answer to that question was no.  The underlying issue in the case that triggered the lawsuit and appeal had to do with the practice LexisNexis employed in its flat fee access plans to attorneys.  I’ll let the Court explain it:

        LexisNexis (a business division of Reed Elsevier) provides legal-research services, primarily on-line. In 2007, Craig Crockett and his former law firm—Dehart & Crockett, P.C.—subscribed to a LexisNexis Subscription Plan. The Plan allowed subscribers unlimited access to certain legal databases for a flat, monthly fee.  Subscribers could access other databases for an additional fee. According to Crockett, LexisNexis told subscribers that a warning sign—such as a dollar ($) sign—would display if the subscriber was about to use a database outside of the Plan.

Several years after signing up for the Plan, Crockett complained to LexisNexis that his firm was being charged additional fees without any warning that the firm was using a database outside the Plan. LexisNexis allegedly insisted on payment of the additional fees anyway.

Those of us in academics working with our subscriptions to Lexis and Westlaw are very familiar with either premium databases not appearing or alternatively messages stating the desired content is not part of the current subscription.  It makes me wonder, assuming the allegations are true, why Lexis can’t manage flat fee plans.  Of course, we’ll never know since the dispute is heading to arbitration.

Though the Court is not sympathetic to Mr. Crockett’s legal arguments concerning how the arbitration clause in the contract is read (precedent is against him), it does offer this cautionary advice to prospective commercial consumers:

Crockett’s remaining argument is that, if read not to permit classwide arbitration, the arbitration clause is unconscionable. The clause is indeed as one-sided as Crockett says: the clause favors LexisNexis at every turn, and as a practical matter makes it economically unfeasible for Crockett or any other customer to assert the individual claims that Crockett seeks to assert here. The clause provides that any arbitration of any dispute concerning LexisNexis’s charges must occur in Dayton, Ohio, where LexisNexis is headquartered. The customer must pay his own legal fees, even if the arbitrator concludes that LexisNexis’s charges were improper. And unlike many corporations that require arbitration of disputes with their customers, LexisNexis makes its customer split the tab for the arbitrator’s fee.

The idea that the arbitration agreement in this case reflects the intent of anyone but LexisNexis is the purest legal fiction. But all of these things—the one-sided nature of the arbitration clause, and its adhesive nature—were also present in American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013). And there the Supreme Court held that, all of those concerns notwithstanding, the absence of a class-action right does not render an arbitration agreement unenforceable. Id. at 2309 (The solution to Crockett’s problem is likely a market solution; as the district court observed, Westlaw’s agreement with its customers lacks any arbitration clause, much less a clause of the sort at issue here.)      Under Italian Colors, therefore, the agreement here is not unconscionable.

The case is Elsevier, Inc. v. Crockett, et al. (6th Cir. 12-3574, November 5, 2013).  Copies of the opinion are here and here.  Hat tip to Michael Ginsborg for the links.  As Paul Harvey would say, now you know the rest of the story.

Mark

In The Problem With Discovery Tools and Law Firm Libraries Slaw’s Susannah Tredwell concludes

As the number of electronic resources increase, there is going to be an increasing need for effective ways to search and manage these resources. The ideal would be a “publisher agnostic” platform on which all content could be mounted, regardless of who supplies it, but the realities of the legal publishing world make that unlikely.

Unlikely indeed. Tredwell’s post and the three below listed references which formed the basis for her post are highly recommended. — Joe

Certainly there is a serious side to revenge porn but that’s not what this post is about. This post is a light-hearted riff on the notion of amending the Copyright Act to protect  amateur porn’s (aka “intimate media”) social value by “creat[ing] a right for identifiable subjects of intimate media to prevent unauthorized distribution or display of those images or videos, backed by statutory damages and injunctive relief, but leavened with immunity for service providers following a take-down procedure and for any defendant obtaining written consent or making newsworthy use of the media”. Quoting Derek Bambauer’s INFO/LAW post, Copyright, Sexting, and Revenge Porn: What Law Should Do, about his forthcoming Minnesota Law Review article. Here’s the abstract for Bambauer’s Exposed [SSRN]:

The production of intimate media – amateur, sexually explicit photos and videos – by consenting partners creates social value that warrants increased copyright protection. The unauthorized distribution of these media, such as via revenge porn, threatens to chill their output. To date, scholarly attention to this problem has focused overwhelmingly on privacy and criminal law as responses, neglecting the power of intellectual property doctrine to curtail harms and spur beneficial uses. Copyright law leverages an established, carefully limited system of intermediary liability that addresses the true risks of abuses, such as revenge porn. Importantly, copyright is also consonant with key statutory protections, such as Section 230 of the Communications Decency Act, that protect the thriving Internet ecosystem.

This Article proposes creating within the Copyright Act a right for identifiable people captured in intimate media to block unauthorized distribution and display of those images or video. It then uses the proposal, and issues for intimate media more broadly, as a window into contentious scholarly debates over the nature of authorship and the balance between copyright and free speech. The Article closes by identifying the rise of intimate media and its concomitant challenges as part of the ongoing revolution in information production.

Imagine the soul-searching deliberations leading up to bedroom conversations, see for example, I post amateur porn secretly on Salon. Imagine congressional deliberations. Imagine Fox News interviewing Scalia after SCOTUS opines on such an amendment. Heck, imagine Scalia’s law clerks researching revenge porn’s chilling effect on intimate media’s social value. Hell, imagine Jason Wilson’s annotations to the oral arguments before SCOTUS.

For the serious side of revenge porn, see Victims are taking on ‘revenge porn’ websites for posting photos they didn’t consent to (ABAJ, Nov. 1, 2013). See also, Miami Law prof Mary Anne Franks’ blog, Moving Targets, and the work she is performing to draft model legislation to criminalize revenue porn.  — Joe

The Court issued one opinion yesterday.  The case is Burt v. Titlow  (12-14) and it concerns the effective assistance of counsel as raised in a habeas corpus proceeding.  Vonlee Titlow was convicted of first degree murder in Michigan.  The record indicates that she poured Vodka down the throat of her Aunt’s husband after which her Aunt smothered the victim.  Titlow’s first attorney arranged a plea deal with prosecutors to plead guilty to manslaughter in return for testifying against her Aunt.  Three days before the Aunt’s trial, Titlow retained a different lawyer who tried to alter the terms of the deal for an even lower sentence.  The prosecution refused.  Titlow had maintained her innocence and decided to go to trial.  She was convicted of second degree murder and given a sentence of 20-40 years.

The Michigan Court of Appeals upheld Titlow’s conviction and denied a claim on ineffective assistance of counsel for her second lawyer.  The claim was that the second attorney advised withdrawing the guilty pleas while not spending enough time learning the details of the case.  The appellate court held that the attorney’s actions were reasonable given Titlow’s protestations of innocence.  The record also shows that Titlow’s prior attorney had discussed the evidence against her in detail and explained that it could support a conviction for first degree murder.

The federal district judge denied habeas relief on deference to the reasonableness of the Michigan Court of Appeals’ decision.  The Sixth Circuit reversed.  It noted that the explanation for withdrawal provided by the second attorney at the hearing on the plea was that the jail time offered was higher than the Michigan guidelines.  As such, the Appellate Court’s rationale was unreasonable.     

The Supreme Court reversed.  It held that the Sixth Circuit unreasonably substituted its judgment for that of the state courts.  The record supports the factual finding that the plea was withdrawn after Titlow proclaimed innocence.  There was no evidence in the record of the advice the second lawyer gave to Titlow.  The standard presumes competency.  Titlow did not overcome that presumption.

There were some questions of ethics, such as the attorney agreeing to represent Titlow in exchange partially for publication rights.  The Court said of that:

He may well have violated the rules of professional conduct by accepting respondent’s publication rights as partial payment for his services, and he waited weeks before consulting respondent’s first lawyer about the case. But the Sixth Amendment does not guarantee the right to perfect counsel; it promises only the right to effective assistance, and we have held that a lawyer’s violation of ethical norms does not make the lawyer per se ineffective.

That statement reminds me of another opinion where the Court stated: ‘A defendant is entitled to a fair trial but not a perfect one.’ Lutwak v. United States, 344 U.S. 604, 619.  Take it from the Supreme Court, perfection isn’t everything.  In fact, it may not be anything.

Justice Alito delivered the opinion of the Court and was essentially joined by all Justices except Justice Ginsburg who wrote an opinion concurring in the judgment.  Justice Sotomayor wrote a separate concurring opinion but otherwised joined the Court in full.

Mark

Last week, ANSI launched its Incorporation by Reference (IBR) Portal. The website “provides a one-stop mechanism for access to standards that have been incorporated by reference in the U.S. Code of Federal Regulations (CFR). These standards incorporated by the U.S. government in rulemakings are offered at no cost in ‘read only’ format and are presented for online reading. There are no print or download options.”

OK, it’s a “one-stop mechanism” to do one thing, namely read online. Apparently the sky will fall if ANSI offered free print and download options. Quoting from the Oct. 28, 2013 press release:

“In all of our discussions about the IBR issue, the question we are trying to answer is simple. Why aren’t standards free? In the context of IBR, it’s a valid point to raise,” said S. Joe Bhatia, ANSI president and CEO. “A standard that has been incorporated by reference does have the force of law, and it should be available. But the blanket statement that all IBR standards should be free misses a few important considerations.”

As coordinator of the U.S. standardization system, ANSI has taken a lead role in informing the public about the reality of free standards, the economics of standards setting, and how altering this infrastructure will undermine U.S. competitiveness. Specifically, the loss of revenue from the sale of standards could negatively impact the business model supporting many SDOs – potentially disrupting the larger U.S. and international standardization system, a major driver of innovation and economic growth worldwide. In response to concerns raised by ANSI members and partner organizations, government officials, and other stakeholders, ANSI began to develop its IBR Portal, with the goal of providing a single solution to this significant issue that also provides SDOs with the flexibility they require to safeguard their ability to develop standards.

IBR standards hosted on the portal are available exclusively as read-only files. In order to protect the intellectual property rights of the groups holding these standards’ copyrights, the portal has built in security features that prevent users from printing, downloading, or transferring any of the posted standards; in addition, screenshots will be disabled and the standards will contain an identifying watermark.

Do note the following registration requirements:

You must register to view READ-ONLY documents posted on this site.

Please note that registration is for a single browsing session. Users who return to the site in another session or on another day will need to fill out the registration form again.

Smells like tracking usage of online IBR standards that have the force of law by specific users to me. Perhaps the SDO business model should be changed. — Joe

From the article abstract for Contreras and Hernacki’s Copyright Termination and Technical Standards [SSRN], (University of Baltimore Law Review, Vol. 43, 2014, Forthcoming):

Section 203 of the Copyright Act permits authors to terminate any grant of rights in a copyright between 35 and 40 years after the initial grant was made. In this article we analyze the application of Section 203 termination to technical standards documents, focusing in particular on the exclusion of works-made-for-hire, the treatment of joint works and derivative works. We conclude that, although Section 203 is theoretically applicable to technical standards, several statutory obstacles would impede the wholesale termination of standards-related license grants. Nevertheless, in order to avoid costly and time-consuming litigation, we recommend that Congress or the courts explicitly acknowledge the inapplicability of Section 203 to technical standards.

Hat tip to Christine Corcos’ Media Law Prof Blog post. — Joe

Oh, wait, that’s the null hypothesis. “Law libraries and their librarians have no value” also demonstrates that thinking or rethinking about value is a double-edged sword. What if the null hypothesis is proven to be true?

From this perspective it is clear that library associations will ignore the null hypothesis by publishing reports that identify value. See for example the FT-SLA report entitled The Evolving Value of Information Management And Five Essential Attributes of the Modern Information Professional (free registration required to download). This recent study identifies the perception gap between executives and information professionals in special libraries and identifies ways the latter group can demonstrate their value to the former group by the means of always illuminating case studies and an equally useful to-do list of recommendations.

And then, in the specific context of law libraries and their information professions, there is this:

The last several years have brought fundamental changes to the legal profession and business of law. These changes have served as an impetus for law libraries to transform their operations and services in varied and profound ways—and it is now imperative that law libraries demonstrate the value they bring in concise, measurable ways.

Instead of attempting to test the null hypothesis, AALL appears intent on spending money to prove the value proposition once someone offers an empirical methodology that only does half of the empirically sound task. For more, see the republished text of AALL’s Oct. 28, 2013 press release (source of the above quote) and commentary at 3 Geeks’ AALL’s RFP on Law Library Value Report.

Frankly, I think value is like porn. One knows it when one sees it by the impact it stimulates. Got a ruler to measure the null? — Joe

Here’s the Dear EOS Client letter I believe all EOS licensees received last Friday. — Joe

Dear EOS Client,

Hello! This is Scot Cheatham, CEO of EOS International. I’m writing to you today to announce the acquisition of EOS International by SirsiDynix [ed. note: link]. I am genuinely excited about this event and the benefits it will bring to you, our valued client. I would first like to introduce you to Bill Davison, CEO of SirsiDynix. For those of you who are unfamiliar with SirsiDynix, they have been around for over 30 years, and are the world’s leading provider of Integrated Library Systems. You will undoubtedly get to know Bill and the rest of the SirsiDynix team much better in the coming weeks and months. Bill and I want to be the first to welcome you to the SirsiDynix family!

Below, we have included a section of FAQ’s that will hopefully answer some of your most basic and immediate questions about this acquisition. Please take a few moments to review it. While it probably won’t answer all of your questions, hopefully it will give you a basic understanding of today’s announcement, what it means to you and what you can expect going forward.

The fact that EOS is now backed by SirsiDynix is beneficial to everyone involved. SirsiDynix brings a truly global reach, a world-class infrastructure and the solid financial foundation to take both companies to the next level while providing the vision, the products, and the support you need to succeed. With this acquisition, SirsiDynix is demonstrating its commitment to the library market we serve. Collaboration between SirsiDynix and EOS will allow us to apply significant resources to enhance our flagship product, EOS.Web. It will broaden our sales and marketing capabilities, and will help us to continue to strengthen our client services offering.

This acquisition will bring about the following changes. Effective immediately, Bill Davison will take the reins as CEO of the new, combined organization. However, please know that the senior management team at EOS will continue to see to all of your needs. Additionally, I will remain available in an advisory role to assist Bill throughout this transition.

We know that change can be uncomfortable and we appreciate the importance of keeping you informed as we navigate through this transition. To that end, we want you to know that most things will NOT change, including the following key items:   EOS will continue to do business under the EOS name. You won’t see any changes to the fundamentals of the EOS business.

With only a very few exceptions, you will continue to work with the same people at EOS that you have worked with in the past.

There will be no changes to your fee structure, maintenance and other product pricing.

The products and services EOS has provided you in the past will continue to be offered and enhanced. There are no product end-of-life issues, nor product roadmap changes.

Quite simply, the main thing you can expect from this announcement is business as usual. We genuinely appreciate having you as our client, and now welcome you to SirsiDynix’s larger client family. On behalf of Bill and the rest of the combined executive team, we will work hard to earn your trust, exceed your expectations and make you as big a fan of this acquisition as we are!

Sincerely, Scot Cheatham

Several anticipated questions are answered below:

Who is SirsiDynix?

SirsiDynix is the world’s leading provider of integrated library system software. For over 30 years, SirsiDynix has developed, distributed and maintained the most widely-implemented ILS platforms in history. With customers in all four major segments of the library market—public, academic, K-12 and special—SirsiDynix specializes in delivering robust Library Solution Platforms that are highly customizable, extremely efficient and designed to seamlessly deliver both physical and electronic content.

Why did EOS sell to SD?

Two of our core principles at EOS are We Care and We Love Growth. We are committed to the success of our stakeholders – our staff, partners and most especially, our clients. We are also committed to growth that benefits our stakeholders. With that in mind, we decided that partnering with SD will provide the broad infrastructure, solid financial foundation and significant growth opportunities that will ensure continued success for our world-class products clients.

Will I need to switch platforms?

Clients will not need to switch platforms. EOS will continue to support all of the products it currently supports.

How does this announcement affect the EOS product roadmap?

Our product roadmap will continue as currently planned. Jeff Goodwin, our VP of Product Development, will continue to lead our development team as we implement our extensive product enhancement schedule. One of the benefits of EOS being backed by SD is that new product enhancements and features will be added to our roadmap that will bring significant benefits for EOS clients.

How does it affect EOS support?

EOS product support services and offerings will continue unabated. Jeff Smith, VP of Client Services, will continue to manage our award-winning product support team. All of the services that clients have come to appreciate over the years will be maintained. Our Service Guarantee and 24/7/365 support availability will continue with no changes. You will call the same telephone numbers, use the same email addresses, and reach the same friendly EOS client service staff.

Will there be any changes in sales?

Sal Provenza, VP of Global Sales and Marketing will continue to lead our sales and marketing effort. You will continue to work with your existing sales account manager. All EOS sales proposals and license renewal proposals do not change as a result of this transaction.

Any changes in EOS contact information?

You will call the same telephone numbers, use the same email addresses and EOS will have the same headquarters address.

Will there be any changes in the terms of my contract?

All contract terms will remain the same. In some cases there is an ‘Assignment’ or ‘Change in Control’ provision that requires assignment of the contract. An EOS representative will be in touch with you in case such a provision is in your contract.

How will this announcement affect my library?

Our goal is for this acquisition to have only positive benefits for your library. Business, product development, and operational best practices at SD will be implemented at EOS where practical and beneficial. Collaboration between SD and EOS will help enhance our client services and accelerate product enhancements. Best of all, the same EOS team will be there for you, helping you use our products to “Connect People to Knowledge!”

“I think it’s safe to say a lot of people are going to be talking about this,” wrote Alfred Brophy about  Konefsy and Sullivan’s forthcoming Buffalo Law Review article. Coming from Brophy, that’s a good enough recommendation for me to “read more about it.”

In This, the Winter of Our Discontent: Legal Practice, Legal Education, and the Culture of Distrust [SSRN] by Alfred S. Konefsky, SUNY Buffalo Law and Barry Sullivan, Loyola Law – Chicago.

Abstract: This essay seeks to situate the challenges facing legal education within the broader context of professional culture — a context that seems to us to have been neglected in the present debates. In a sense, the “market reformers” have been swept up, consciously or not, in a wider movement that elevates markets over other forms of social analysis and therefore asserts and takes for granted what is in fact deeply contested. More specifically, they have pushed to the side the public-serving dimension of the lawyer’s role because it allegedly conflicts with the psychology of classical economic liberalism. Our aim, then, is to restore the concept of the public domain to a discussion now dominated by mere considerations of costs and a belief in the inevitable triumph of a narrowed sense of professional culture. Before we can begin to reform the infrastructures of legal education, we need to identify the function of the legal profession in a democratic society and the role that a legal education might play in preparing men and women for service in a profession so conceived. In that sense, cost is not an independent variable, and any judgment about the cost-effectiveness of legal education necessarily depends on a decision concerning the purposes to be served by a legal education.

In Part I, we discuss, in a general way, some of the changes that have occurred in society, the profession, and legal education in the past 40 years or so. We are particularly interested in the growing tendency to re-conceptualize many social phenomena in market terms and the effects of this trend on legal education and the practice of law. In Part II, we continue our discussion of those themes, as they relate to the current debate over the future of legal education, by considering the analyses of Thomas D. Morgan and Brian Z. Tamanaha, both of whom approach the problem from the vantage point of economic analysis. Notwithstanding the similarities in their methodologies, their respective prescriptions point in somewhat different directions. We suggest that a broader view is necessary and that the work of these commentators and others suffers from a failure to give sufficient attention to the public dimension and significance of the legal profession. In Part III, we endeavor to reframe the problem in a way that may be useful in developing a forward-looking approach to accomplishing the reforms that are necessary.

— Joe

The Supreme Court issued its first opinion of the October 2013 Term on Monday.  The Court had earlier dismissed the writ of certiorari in Madigan v. Levin (12-87) on October 15th.  The Madigan case was the first argued in the current term.  The case at hand, though, is Stanton v. Sims (12-1217).  It was apparently decided on the basis of the petitions and record as the case did not come up for argument in October.  It involves whether a police officer is entitled to qualified immunity for injuries to a property owner when pursuing an individual on to that property when the individual is only subject to being charged with a misdemeanor.  The District Court said yes to that question and was reversed by the Ninth Circuit.  The Supreme Court agreed with the District Court and reversed the Ninth Circuit.

Officer Stanton was investigating reports of an individual with a baseball bat in La Mesa, California.  He identified himself as a police officer and called for one individual to stop and that individual ran onto the property of Drendolyn Sims.  Stanton gave chase and kicked open a closed gate leading to the front yard of Sims property.  Sims happened to be behind that gate at the time and suffered an injury to her forehead and shoulder.  She filed a §1983 lawsuit alleging a violation of the Fourth Amendment.

The District Court held that Stanton’s entry onto her property was justified by the need to pursue the individual and by the lesser expectation of privacy Sims had in the curtilage of her property.  The Court also ruled that Stanton was entitled to qualified immunity because there was no clearly established law that put Stanton on notice that his conduct was unconstitutional.  The Ninth Circuit relied on one Supreme Court case and circuit precedent in another case to reverse.

In reversing, the Supreme Court said the Ninth Circuit misinterpreted the meaning of Welsh v. Wisconsin, 466 U.S. 740 (1984).  The Court distinguished Welsh as there was no hot pursuit on that record compared the instant case.  The other case, United States v. Johnson, 256 F. 3d 895 (9th Cir. 2001) (en banc) did not involve circumstances of hot pursuit.  Moreover, there were two District Court cases out of the Ninth Circuit as well as two California Appellate Court cases that disagreed with the logic the Ninth Circuit applied in this case.  On that basis, the Supreme Court held that there was no clearly established law that would give Officer Stanton notice that he was violating the Constitution.  Officer Stanton was entitled to qualified immunity.  The opinion was issued per curiam.

Mark