Good News: Nevada's Strong Anti-SLAPP Law Is Constitutional

from the good-to-see dept

For many, many years we've talked about the importance of strong anti-SLAPP laws. In case you're new to the subject, SLAPP stands for a Strategic Lawsuit Against Public Participation. In short, SLAPP suits are lawsuits where it is fairly obvious that the intent of the lawsuits is to stifle free speech, rather than for a legitimate purpose under the law. The intention of anti-SLAPP laws are to allow for such lawsuits to be tossed out of court quickly -- and, frequently, to force those who bring those suits to pay legal fees. While actually getting a federal anti-SLAPP law is really important, for now, we're left with a patchwork of state laws. While many (though not all) states have anti-SLAPP laws, they vary widely in terms of what they cover and just how strong or effective they are.

As we've pointed out in the past, a few years ago, Nevada passed a really great anti-SLAPP law, though it's been under attack the past few years. Thankfully, Marc Randazza informs us that Nevada's anti-SLAPP law has been found to be Constitutional, meaning that it will survive largely intact (a few changes had been made a few years ago to bolster the law's likelihood of surviving).

Perhaps even more important was that the ruling basically recognized that Nevada's anti-SLAPP statute was similar to California's (much older and much more broadly litigated anti-SLAPP) law, and that Nevada courts can use California case law for its own anti-SLAPP cases. That's also a good thing:

A secondary issue in the case, and an important one, is that the Nevada Supreme Court recognized that Nevada and California Anti-SLAPP jurisprudence are essentially one body of law. This is not entirely new law. In John v. Douglas Cnty. Sch. Dist., 125 Nev. 746 (2009), the Nevada Supreme Court held similarly, but this was discussing the prior version of the law....

[....]

The good news is that the Court reaffirmed the John v. Douglas County pronouncement that Nevada courts should rely on the rich body of California case-law in interpreting the Nevada statute. Given the scant case-law we have in Nevada, this is a godsend. California has interpreted "matter of public concern" as extremely broad. Meanwhile, I have seen Nevada trial court judges looking at the standard as much more narrow.

This is a good decision that brings more predictability to Anti-SLAPP litigation under the Nevada statute, and ultimately will function to keep Nevada's free speech protections aligned with its free-speech-protective neighbor.

Another good win for an anti-SLAPP law. Now, if only more states (and the federal government) will adopt them and really protect free speech from legal bullying.

Filed Under: anti-slapp, california, free speech, nevada

Prosecutors Looking Into $2 Field Drug Tests After Investigation, Figure Defense Attorneys Should Do All The Work

from the THIS-NEEDS-TO-BE-FIXED...-by-other-people dept

The fallout from cheap field drug tests continues. The lab that does actual testing of seized substances for the Las Vegas PD had previously expressed its doubts about the field tests' reliability, but nothing changed. Officers continued to use the tests and defendants continued to enter into plea bargains based on questionable evidence.

The Las Vegas PD knew the tests were highly fallible. After all, the department had signed off on a report saying as much and handed it into the DOJ in exchange for federal grant money. But cops still used them and prosecutors still relied on them when pursuing convictions.

Nothing changed until ProPublica stepped in with its own investigation into the faulty drug tests. In response to this reporting, prosecutors are finally taking a closer look at the tests officers deploy hundreds of times a year.

The Clark County District Attorney’s Office in Nevada established a conviction review unit in October. In what appears to be one of its first efforts, the unit has been seeking information about problematic convictions resulting from one of the office’s routine practices: accepting guilty pleas in drug cases that rely largely on the results of field tests done by police that can be unreliable.

Unfortunately, this initial move is being handled poorly. Rather than have its prosecutors reexamine any cases relying on field-tested evidence, the DA's office is dumping the workload on already-burdened public defenders.

Daniel Silverstein, head of the newly formed unit, in November asked a statewide organization of defense lawyers for any information they had on cases that might have involved inaccurate field tests, and thus resulted in potentially wrongful convictions.

This isn't the defense attorneys' problem. While they're definitely interested in a solution, the wrongful convictions were pursued by the DA's office and its attorneys should be the ones looking for convictions that might need to be overturned. The DA's office has more resources and it is the entity that chose to continue pursuing cases against citizens based on nothing more than unreliable $2 test kits.

Howard Brooks, the Clark County Public Defender’s appellate director, called the district attorney request to defense attorneys “an absurd challenge.” Brooks argued it is the duty of prosecutors to verify the integrity of their convictions — both those that have already been won and those being brokered today in Clark County courts.

Then there's the fact that this examination process won't end up reversing many convictions. As ProPublica points out, seized evidence is routinely destroyed after convictions are obtained. And while lab tests are run on seized substances, that only happens if everyone coordinates to run the samples through as soon as possible. This is something that almost never happens.

Prosecutors routinely delay crime lab analysis to check results of field tests until the eve of trial, court records show. When defendants plead guilty at preliminary hearings, the alleged drugs rarely even reach the lab. In Clark County last year, according to court data, just eight of 4,633 drug convictions went to trial.

Add to that the fact that the PD itself has never tracked the failure rate of its field drug tests, despite having access to this data. It may have signed off on a damning report, but its discoveries about the tests' fallibility changed nothing about its day-to-day business. The drug tests remained in use by the police department and were treated as unquestionable evidence by the DA's office when pushing for plea deals.

About the only immediate positive result of this investigation is the higher bar prosecutors will have to clear before admitting field drug test results as evidence. The state's public defenders are planning to challenge every field drug test submission during evidentiary hearings. Of course, this assumes the judicial process will even make it this far.

For many of the accused, accepting plea deals nets them shorter sentences and a slightly less-awful future than going to trial might. Defendants often accept deals just to avoid actual jail time. On the prosecution scorecard, it still counts as a win. As a bonus, additional evidence possibly pointing to the field tests' abysmal accuracy rate vanishes, allowing cops, prosecutors, and sympathetic judges to continue lying to themselves about the tests' accuracy.

Filed Under: $2 field tests, doj, drug tests, evidence, las vegas pd, nevada

Dental Firm Tries To Dodge Section 230 With Trademark Claims; Runs Headfirst Into Anti-SLAPP Law

from the can't-even-manage-a-lawsuit,-much-less-its-reputation dept

Abbey Dental of Las Vegas doesn't like the number of negative reviews that are piling up at Pissed Consumer. But that's about all it (and its lawyers) know. It seems to understand that taking on Pissed Consumer with a defamation lawsuit would be a complete failure, as would be any effort it made to sue individual reviewers. Nevada has an anti-SLAPP law in place, which would fit Abbey Dental's attempt to artificially resuscitate its reputation to a tee.

So, instead of handling this in the normal way (which would also be the route least likely to succeed), the company has decided to take a more oblique approach: a lawsuit filed in federal court (to better dodge the state's anti-SLAPP law) centered on a variety of tremendously stupid trademark infringement claims.

Pissed Consumer, represented by Marc Randazza, has decided to swerve as well -- the better to attack Abbey Dental's circuitous claims head on and ensure it doesn't escape the anti-SLAPP statute it's so desperate to avoid.

As is noted in the first footnote of Pissed Consumer's motion to dismiss/summary judgment request [PDF], the defendant and its lawyer have given Abbey Dental plenty of time to back away from the precipice.

[Abbey Dental's] complaint was filed on October 27, 2015. Shortly thereafter, Defendant warned Plaintiff that the case was frivolous and would be subject to an Anti-SLAPP motion. (See Email from Randazza to Amin dated Jan. 6, 2016, attached hereto as Exhibit 1.) Defendant spent more than a year trying to get Plaintiff to come to its senses. After eight extensions seeking to avoid this, Defendant finally filed its first Anti-SLAPP motion. (ECF No. 25.) Plaintiff responded by filing an Amended Complaint 1 day later. The Amended Complaint simply compounds the problem, and cures nothing.

Abbey Dental's lawyers are creative, but the arguments made are novel, which is a judicial term for "wtf." The company -- in its desperation to avoid having to deal with Section 230 of the CDA -- claims that Pissed Consumer has done everything from domain name squatting to abuse of keywords/metatags (something settled a long time ago) to injure its trademarked name. Pretty much everything in its complaint is -- at best -- stupid bullshit.

Abbey argues that using the words “Abbey Dental” on a web page with consumer reviews about Abbey creates a likelihood of confusion in the minds of consumers by making them think that the web site is affiliated with Abbey. This makes no sense. This use is clearly nominative fair use.

[...]

The first issue is Opinion’s use of search result copy on Google. The copy that accompanies a search result for the term “abbey dental” that leads users to Opinion’s web site informs users that they will arrive at a site with reviews of this particular business. The Ninth Circuit summed up the weakness of Abbey’s argument here when it recognized that internet users:

fully expect to find some sites that aren’t what they imagine based on a glance at the domain name or search engine summary. Outside the special case of . . . domains that actively claim affiliation with the trademark holder, consumers don’t form any firm expectations about the sponsorship of a website until they’ve seen the landing page – if then.

[...]

Though it is not an element of an infringement claim, Abbey also alleges at that Opinion is diverting Internet users to Abbey’s competitors by providing advertising on its web site. Even if this were an element of an infringement claim these allegations would not help Abbey. Opinion does not create these advertising links, and they are tailored to the search patterns of visitors.

That's just some of the trademark claims dispensed with. Then there's the completely ridiculous "cybersquatting" claim -- raised because Pissed Consumer's review page URL contains the words "Abbey Dental."

[T]here is nothing actionable about Opinion’s use of the Abbey Dental mark in its sub-domain [abbey-dental.pissedconsumer.com]. Tabari is instructive here, and observed that,

when Internet users search for a web site through a search engine the consumer will click on the link for a likely-relevant site without paying much attention to the URL. Use of a trademark in the site’s domain name isn’t materially different from use in its text or metatags in this context; a search engine can find a trademark in a site regardless of where exactly it appears.

As for any "customer confusion," not even a "moron in a hurry" would think Pissed Consumer's gripe page was somehow an official extension of the Abbey Dental brand. Not only that, but it's impossible to write about a business without using the business's name.

Abbey’s argument on this point is frivolous on its face; Opinion’s use is plainly a nominative fair use of the “Abbey Dental” mark; there is no way to have a review page about a business without naming the business. Opinion does nothing to create any sense of affiliation or sponsorship by the thousands of reviewed businesses.

Since Abbey Dental seems intent on avoiding fights it knows it can lose (Section 230, Nevada's anti-SLAPP law), Pissed Consumer is bringing the fight to it. The combination motion asks for both a dismissal and sanctioning under the state's anti-SLAPP law. As Randazza points out in the motion, the company's federal filing shouldn't allow it to escape the reach of local statutes.

Anti-SLAPP statutes apply in federal court. See Batzel v. Smith, 333 F.3d 1018, 1025-26 (9th Cir. 2003); see also Thomas v. Fry’s Elecs., Inc., 400 F.3d 1206, 1207 (9th Cir. 2005). NRS 41.650 provides that a person who engages in conduct protected under Nevada’s Anti-SLAPP statute “is immune from any civil action for claims based upon the communication” (emphasis added). NRS 41.635-670 creates a substantive immunity from certain categories of lawsuits and is substantive in nature.

The motion notes that Abbey Dental's bogus trademark infringement lawsuit is just a creative way to avoid dealing with legal precedent it can't surmount and is wholly intended to make criticism of it disappear. This is made even more explicit by its requested injunction.

Abbey’s claims are centered on the theory that Opinion is liable for directing consumers to through its use of industry-standard sub-domains and Google ad copy. To ensure that users actually see reviews about a company, a consumer review web site must use a given business’s name in a sub-domain and ad copy. To restrict such a site from doing so would be to effectively remove web pages containing reviews of the business from the Internet, as no one would be able to find them while performing an Internet search. Abbey’s prayer for relief makes this even clearer, as it seeks both a preliminary and permanent injunction barring Opinion from using Abbey’s name on pissedconsumer.com.

Pissed Consumer is not only asking for a dismissal and a fee award under the anti-SLAPP statute, but also additional sanctions against Abbey Dental for bringing such a frivolous complaint to court.

With any luck, this will all be granted. Abbey Dental has to know its trademark infringement claims are baseless. I guess it was hoping Pissed Consumer would be less familiar with IP law, or that the presiding judge would would be the "moron in a hurry," mistaking a lot of legal-sounding mumbo jumbo for actionable claims.

Final note: Abbey Dental's reputation may be hurting right now, but I assume the installation of Dr. [name], [title] will soon turn things around.

Filed Under: anti-slapp, cda 230, free speech, nevada, reviews, section 230, trademark
Companies: abbey dental, pissed consumer

Ridiculously Stupid: 4 State Attorneys General File Totally Bogus Lawsuit Against Internet Transition

from the make-it-stop dept

Okay, this is really dumb. What is it about state attorneys general making totally bullshit claims? It seems to happen with fairly consistent frequency. The latest is that four state AGs (from Arizona, Texas, Oklahoma and Nevada) have filed a lawsuit to stop the IANA transition. If you don't recall, we've written about this a bunch. A bunch of people are up in arms over something they don't seem to understand. The IANA transition is a good thing. It's not the US government handing over the internet to Russia and China as you may have heard. It's the Commerce Department severing an almost entirely symbolic link between it and a very specific internet governance capability concerning top level domains. And it's important to complete the transition because other countries (including Russia and China) keep pointing to this symbolic link as a reason for why they should have more say in internet governance. Getting rid of the link keeps the internet functioning as it has for decades -- and takes away a weapon from Russia and China. More importantly, going back on the transition now actually gives even more ammo to Russia and China, allowing them to point to unilateral actions by the US gov't to block a process that everyone had agreed upon earlier.

Anyway, to the actual lawsuit. It's dumb. It's really dumb. If you live in Arizona, Texas, Oklahoma or Nevada, you should be embarrassed for your Attorneys General. Elect better ones next time, please. First of all, they have no standing whatsoever to file this lawsuit. The IANA/top level domain system is not those states' property. They have no claim here other than "HEY LOOK! POLITICAL FOOTBALL THAT WE CAN GRANDSTAND OVER!" That does not give them standing. The best they can come up with for claiming standing is... uh... "hey, we have some websites." No, really.

Plaintiffs operate multiple websites, including those that use the .gov and .com generic top level domains, to conduct their business and communicate with their citizens.

Yeah. That's not enough to get standing here, buckos. Also, in filing a lawsuit they don't allege any actual harms. That's kind of a big no no when filing a lawsuit. Instead, they sorta maybe kinda speculate that maybe possibly there could (sorta, maybe) be some (possible, maybe, not really) harm in the theoretical future. Maybe.

Second, the entire crux of the lawsuit is that the authoritative root zone file and the internet domain name system itself are somehow "property" of the federal government, and that this transition is, in effect, the giving away of government property without an act of Congress, violating the Property Clause of the Constitution. Except, as we just discussed recently, the Government Accountability Office studied this issue earlier this month and came to the conclusion that "nope, it's not property." In case you missed it then:

It is unlikely that either the authoritative root zone file—the public “address book” for the top level of the Internet domain name system—or the Internet domain name system as a whole, is U.S. Government property under Article IV. We did not identify any Government-held copyrights, patents, licenses, or other traditional intellectual property interests in either the root zone file or the domain name system. It also is doubtful that either would be considered property under common law principles, because no entity appears to have a right to their exclusive possession or use.

Others have walked through some of the other charges and find them all totally lacking. A judge is set to review this request for an injunction later today, and you never know how any individual judge might rule. So it's entirely possible that this will muck up the timing of the transition, but long term, this filing is not just a joke, but it's an embarrassment and a waste of taxpayer money in those four states.

Filed Under: arizona, congress, gao, iana, iana transition, internet governance, nevada, oklahoma, property, standing, texas
Companies: icann

Tax Prep Company Tries To Sue Unhappy Customer Into Silence; Hit With Damages In Anti-SLAPP Order

from the or,-how-to-make-one-opinion-REALLY-MATTER dept

An anti-SLAPP win has just been handed down in Nevada, one of the few states with a strong anti-SLAPP law. At the center of the failed defamation lawsuit is (you guessed it) a negative review of a business posted at Yelp.

Pamela Boling (represented by Marc Randazza) hired IQTaxx to prepare her taxes, including the filing of a hardship notice. IQTaxx failed to do so. Boling tried to speak to the company about its failure to file the hardship paperwork, but after several attempts she was routed to a third-party number which informed her that the tax preparer's number was no longer in service.

Boling turned to Yelp and left a review detailing her experience with the company. Her review was headlined "This is MALPRACTICE!" Shortly thereafter, IQTaxx sent a cease-and-desist to Boling over her "exaggerated emotional rant review" -- wording it should have known would be fatal to its claims of defamation. Defamation does not cover exaggerations or emotional rants, but rather false statements purporting to be facts.

The court finds the company has failed to satisfy both prongs of Nevada's anti-SLAPP test. Not only that, but it has failed in pretty much all respects when it comes to pursuing a libel suit.

There is no dispute that Yelp is a well-known public forum. and Defendant has provided evidence that her allegedly defamatory statements were not made with knowledge of their falsity. Plaintiff failed to provide evidence tending to show that Defendant knew her statements were false when she made them. Defendant thus made the statements at issue in good faith under NRS 41.637(4). Defendant proved by a preponderance of the evidence that her statements were on a matter of public interest, in a public forum, and were made without knowledge of their falsity.

As for the second prong -- prevailing on the suit's merits -- the court similarly finds almost nothing to work with.

Plaintiff has failed to meet its burden under NRS 41.660(3)(b). Statements of opinion and rhetorical hyperbole are not actionable, as Supreme Court precedent establishes that "there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas." Gertz v. Robert Welch, 418 US. 323, 339-40 (1974).

In other words, the Supreme Court has said the best defense against speech one doesn't like is more speech, not lawsuits.

The court adds that the context of the disputed assertions also plays a significant part in its interpretation.

Context is vitally important in determining whether a reasonable person is likely to view a statement as one of fact, or one of protected opinion or rhetorical hyperbole. The context of Defendant's statements is Yelp, a well-known online forum for consumer reviews. The Internet is the modern equivalent of the soapbox on the sidewalk, and web sites such as Yelp are the type of public forum that is protected under the First Amendment.

The public has become accustomed to seeing fiery rhetoric on online fora, and courts recognize that this context makes it less likely that a reader will interpret statements published in such places as actionable statements of fact.

The court then notes that IQTaxx's sole claim basically doomed its lawsuit from the start.

Plaintiff only asserts that the statement "This is MALPRACTICE!" is defamatory, meaning that only Defendant's September 11, 2015 Yelp review is properly considered in determining whether Plaintiff has met its burden. The statement "This is MALPRACTICE!" with the term "malpractice" in all capital letters and with an exclamation mark, in the context of a Yelp review, is a protected statement of rhetorical hyperbole that cannot make out a claim for defamation.

[...]

Defendant's statements are protected statements of emotional hyperbolic opinion. The average Yelp user would not read the statement "This is MALPRACTICE!" with the central term in all capital letters and with an exclamation mark as a carefully considered legal opinion.

IQTaxx must now pay Boling $1,000 in statutory damages, and the person it tried to sue in shutting up can also go after it for legal fees. The tax preparer has several options available to address the negative review, but chose the one that hurt it the most. Rather than just being known for questionable customer service, the company is now known for suing critics and losing badly.

Filed Under: anti-slapp, nevada, pamela boling, reviews
Companies: iqtaxx, yelp

Nevada Predictably Declares Daily Fantasy To Be Gambling

from the oh-craps dept

Even if you're not the world's biggest sports fan, you've probably heard about this whole "daily fantasy sports" thing that's sweeping the nation. That's because two of the biggest outfits for daily fantasy, Draft Kings and FanDuel, have apparently conspired to buy up every bit of advertising space they can possibly find. The national ads for all this have become so blanketing that the coverage of the ads themselves has sparked its own backlash. In addition to that, the recent trends have caught the eye of the feds, with the DOJ and FBI now actively investigating whether or not daily fantasy leagues are a form of gambling, or if they should be treated as their parent-concept, the traditional fantasy sports league, as a game of skill rather than chance. I happen to think that's a simple question with an easy answer of "yes, it's gambling", but how the government decides on the matter will have understandably enormous ramifications for the daily fantasy industry as a whole. Gambling faces all kinds of legal questions and regulatory restrictions, after all, which means the government's involvement will likely mirror that of traditional sports betting, which means every state and industry will act in the most blatantly self-serving manner.

One state has actually decided not to wait around for the federal government to answer this question. In what I think is ultimately an unhelpful and undeniably self-serving decision, the Nevada Gaming Control Board has ruled that daily fantasy games are pure gambling and will be regulated as such in its state.

The Gaming Control Board wrote that because daily fantasy sports involves “wagering on the collective performance of individuals participating in sporting events,” daily fantasy sites must obtain licensing from the Nevada Gaming Commission to continue operating. This presents a problem for DraftKings, FanDuel, and other daily fantasy operators. If they wanted to keep their games open to Nevada’s nearly three million residents, they could surely jump through the necessary hoops to secure regulatory approval. But doing so would admit that daily fantasy is gambling, a distinction daily fantasy operators are desperate to avoid.

I'll note here that Nevada is far from the first state to decide this way on daily fantasy sports. In fact, 11 other states have already done so. The difference, of course, is that Nevada is doing this without even really bothering to conceal its true motive: its own gambling revenue interests. In what might be a nod to daily fantasy being gambling, Las Vegas is keenly interested in this ruling, seeing these fantasy leagues as competition for its own sportsbooks.

The result of the ruling has been quick, with several of these daily fantasy sites no longer serving citizens in Nevada, including FanDuel. Of course, good luck to the state in actually trying to keep a motivated gambler from circumventing the rules and playing anyway, which is why this whole question is probably ultimately a silly one for any government entity to be asking. All the hand-wringing here is due to this form of gambling being available over the internet. In the same way you have terrestrial casinos lobbying against online poker, so too will they lobby against daily fantasy. Not on any kind of moral grounds, mind you. This is pure business. Gambling is fine. Internet gambling? The devil, obviously.

Filed Under: competition, daily fantasy sports, fantasy sports, gambling, nevada
Companies: draft kings, fanduel

Judge Orders Lying, Cheating Government To Return $167,000 To The Man They Stole It From

from the nothing-civil-about-this-forfeiture dept

A federal judge has just ordered the government to return $167,000 it took from a man passing through Nevada on his way to visit his girlfriend in California. The officers really wanted that money, too. They used two consecutive stops to jerry-rig some probable cause… even though at that point they thought they were only dealing with $2000. From the original stop forward, the entire situation was deplorable, indisputably showing that everyone involved was more interested in taking (and keeping) a bunch of cash than enforcing laws or pursuing justice.

The order is a jaw-dropping read. It begins with the flimsiest of "reasonable suspicion" and heads downhill after that. Straughn Gorman was driving across Nevada in his RV when he was pulled over for a "left-lane violation" -- driving too slow in the passing lane. (This itself isn't actually a moving violation, but the Supreme Court's Heien decision has ensured that law enforcement needn't be slowed by actual knowledge of the laws they're supposed to be enforcing.)

This lead to some questioning, because reasons:

Upon request, Gorman produced his license and registration and told Monroe that he was traveling to Sacramento, California to visit “his chick.” Id. at 60:9-61:5. Gorman told Monroe that his girlfriend lived in downtown Sacramento, but was not able to produce her exact address, noting that it was entered into his GPS system. Id. at 84:2- 22. Gorman’s use of the word “chick” aroused Monroe’s suspicion that Gorman’s answers were rehearsed because Monroe thought that “chick” was an unusual word for a person Gorman’s age—thirty-one at the time of the stop—to use.

Obsolete vernacular = "reasonable suspicion." That and State Trooper Greg Monroe felt Gorman's claimed employment with a "beach activities and paddle board company" sounded similarly "rehearsed." Monroe went back to his vehicle and tried to rustle up a K9 unit. But there were no units nearby, the records check was coming up clean and Monroe was running out of ideas. First, he told Gorman he was free to leave. Then he started fishing:

Immediately afterward, Monroe asked Gorman if he could ask some additional questions. Monroe first asked how Gorman could afford to drive a motor home cross-country when gas prices were over $3.00 per gallon. Monroe then asked if Gorman still sold paddle boards for a living, and asked about his compensation, to which Gorman responded “I don’t want to talk about how much I make.” At approximately 9:25 a.m., Monroe asked if there was anything illegal in Gorman’s motor home, or if he was carrying large amounts of U.S. currency. Gorman then told Monroe that he was only carrying about $2000 in U.S. currency in the motor home. At 9:25:45 a.m, Monroe asked Gorman “do you mind if we search the vehicle?,” to which Gorman said “I do mind, yes.” At this point, Monroe told Gorman that he was free to leave [for the second time], returned to his vehicle, and said “he’s carrying money” aloud to himself.

Monroe smelled money and he wasn't about to let $2000 travel across his state without being apprehended. So, he called the Highway Patrol and told dispatch his suspcions, stating that the only way the vehicle could be searched was with the use of a drug dog. Dispatch called Deputy Doug Fisher and informed him that Gorman did not consent to a search and that he "might want to follow up on the information." Here we have two different law enforcement entities basically colluding to perform a search simply because one entity experienced a refusal. The court isn't impressed.

The Court is particularly troubled that the officers’ belief that Gorman would not consent to a search, and his opposition to the canine sniff, appears to have contributed to the officers’ purported reasonable suspicion to extend the stop and continue the investigation. Individuals have a right to refuse consent for a search, and the existence of this right requires that denial of consent not be a basis to prolong a stop.

On top of this, Monroe called Deputy Fisher directly to "relay his suspicions." He also inflated the amount of money Gorman had admitted to be carrying with him -- from $2000 to $5000. Fisher left the Sheriff's Office ostensibly to perform a "roving patrol," but soon decided to park himself on the side of the highway in order to catch Gorman when his RV passed by. Fisher pulled the RV over after it "crossed the fog line" a few times.

Having been stopped for a second time in under an hour, Gorman was understandably annoyed. He told Fisher the same thing he had told Monroe during his twenty-minute stop earlier. Fisher ran the same records checks and received the same lack of anything actionable. Despite this, Fisher pushed for a canine search.

[A]pproximately twelve minutes into the traffic stop, Fisher released his drug-detection canine “Euros” from his vehicle. Fisher and Euros then approached the motor home and began walking around it in the clockwise direction, starting at the rear left-hand side of the vehicle. As Fisher and Euros circled the rear of the motorhome, Euros sat down near the vehicle’s back right compartment, facing the compartment. Fisher described this as a “committed sit and stare,” which he considered to be a positive alert.

Even if you believe -- like the Supreme Court does -- that drug dogs are mostly reliable and unlikely to respond to signals (unconscious or otherwise) from their handlers, Fisher's next statements indicate that bringing a drug dog onto the scene is just an easy way to generate "probable cause" where none exists.

Gorman then referred to the back rear compartment and said “I can open that if you want to look in it. It’s charcoal and stuff like that, do you want to look in it?” Fisher replied “do you want to talk to me now?” Gorman replied “if he alerted somewhere, look in it because there’s no drugs.” Fisher then noted that odor could come out anywhere on the vehicle, and that the rear back compartment was on the “downwind side of the vehicle.”

Armed with the drug dog's affirmation that drugs might be located somewhere in the RV, the deputy acquired a telephonic warrant and immediately began searching the entire interior of the RV. And while the drug dog continued to "alert" on objects inside the vehicle, no drugs were found. The only thing "illegal" in Gorman's motorhome was $167,000 in cash, stashed away in the freezer, microwave and bedroom. Gorman was (for the third time in under two hours) free to go. But his money wasn't.

Gorman fought back. Almost two-and-a-half years from the point the money was taken, it is now ordered to be returned. On top of that, Gorman will also be awarded attorney's fees. Why? Because the government lied every step of the way.

First off, two different law enforcement officers performed consecutive stops, with the second stop being predicated on the "suspicions" generated by the first. This is something law enforcement cannot do.

Here, Gorman was initially stopped for a minor traffic offense at approximately 9:03 a.m. and released at approximately 9:26 a.m. when Monroe concluded that he did not have probable cause to search the motor home. Gorman was stopped the second time, again for a minor traffic offense, at approximately 10:15 a.m., and held for more than nine minutes before Fisher asked if he could conduct a canine sniff. Fisher knew that Monroe had previously ran a records check and lacked probable cause to hold Gorman, but nonetheless two additional records checks were conducted in order to prolong the detention and make time for a canine sniff. The positive alert occurred approximately twelve minutes after the second traffic stop occurred.

All tolled, Gorman was detained for a total of approximately thirty-five minutes without convincing independent reasonable suspicion—before the officers conducted a canine sniff of the motor home and obtained probable cause for the search. Of course, “an individual who has already been seized can still be further seized for purposes of the Fourth Amendment.” Hopkins v. Bonvicino, 573 F.3d 752, 772 n.12 (9th Cir. 2009). But a second stop requires additional reasonable suspicion independent of the reasonable suspicion present in the first stop.

On top of that, the government -- when arguing for its "right" to take money just because -- claimed the two stops were entirely unrelated.

In its supplemental briefing, and after it became evident that the two stops were connected, the United States argues that “Monroe’s earlier traffic stop is wholly irrelevant to the Fourth Amendment analysis applicable to Gorman’s motion to suppress.” Specifically, the United States contends that “Fisher’s traffic stop was based on his own observations of traffic violations being committed by Gorman, without regard to any information provided” by Monroe. These statements cannot be reconciled with the testimony by Monroe and Fisher, or an independent review of the evidence before the Court.

Note the phrase "after it became evident." This wasn't evident at first. Deputy Fisher hid this fact from the magistrate judge when requesting a warrant over the phone and lied about what Gorman had actually told him.

[T]he warrant application never mentions Monroe’s original stop, that Monroe called Fisher with information about Gorman and Gorman’s vehicle, or that Fisher was dispatched to investigate Gorman. This omission thereby represented to the magistrate that Fisher pulled Gorman over solely due to his traffic violations, as opposed to having been encouraged to investigate Gorman by NHP and Monroe. Second, Fisher represents in the warrant application that Gorman “indicated he had no job.” This is unambiguously contradicted by the video of Fisher’s questioning of Gorman, in which Gorman states clearly that he works for a Maui paddle board company.

These lies -- kindly called "omissions" by the court -- sadly wouldn't be enough on their own to suppress the evidence obtained by the search. But the application of the Supreme Court's Rodriguez decision (officers can't unnecessarily prolong stops to perform [often dog-assisted] fishing expeditions) does call for suppression.

But Deputy Fisher wasn't the only one lying. The State's Attorney's office also lied to the court.

The Court is disappointed that the United States would aggressively pursue this forfeiture action while all of its moving documents for summary judgment and supporting affidavits contained material omissions concerning the history leading to the traffic stop and canine sniff at issue. The government’s Motion for Summary Judgment, with supporting affidavits from Deputy Fisher and the Assistant United States’ Attorney, made no disclosure of anything which would have suggested that Fisher’s stop was a follow-up on Monroe’s stop and was based upon suspicion of a drug related offense.

This is how the government portrayed Fisher's actions in its provided documents.

On January 23, 2013, ECSO Deputy Doug Fisher was monitoring west-bound traffic on Interstate 80 near Elko, Nevada.

But, as pointed out earlier in the order, Doug Fisher wasn't assigned to traffic patrol and wouldn't have just been "monitoring traffic" if he hadn't received a call from dispatch about Gorman's RV, as well as a direct call from Trooper Monroe himself.

On top of the deceit at all levels, there were problems with the search itself. The drug dog alerted on a rear compartment. But rather than search that area, the deputies searched the entire vehicle.

[E]ven assuming that the officers had probable cause to search the back right compartment where the canine alerted, the Court is not convinced that the dog’s positive alert to the compartment gave the officers probable cause to search the entire motor home. Despite Gorman’s consent to search the compartment, the officers did not even begin their search of the motor home with the compartment, instead beginning with a search of the motor home’s main cabin. “Probable cause to believe that a container placed in the trunk of a taxi contains contraband or evidence does not justify a search of the entire cab.” United States v. Ross, 456 U.S. 798, 824 (1982)

The court doesn't weigh this issue specifically (although it does express its skepticism) but it doesn't have to. The prolonged detainment without probable cause is enough to suppress the evidence under Rodriguez.

The court sums it up succinctly while ordering the government to hand over not only Gorman's original $167,000, but attorney's fees as well.

Gorman is undoubtedly the successful party here.

This order shows law enforcement at its ugliest: willing to lie and cheat to maintain control of what it stole.

Filed Under: asset forfeiture, money, nevada, police, seizure, straughn gorman

Spouting Cliches In A Crowded Theater: Steve Wynn's Lawyer Argues For The Dismantling Of Nevada's Anti-SLAPP Law

from the I-HEART-FREE-SPEECH-EXCEPT... dept

Pity the poor lawyer who has to argue on behalf of his employer's desire to curtail the public's free speech rights. Not only are you indirectly arguing on behalf of those who've abused the legal system to stifle speech, but your defensive arsenal is going to be limited to assertions that are ineffectual, blunted, stupid or any combination of the above.

Free speech in the US is (mostly) an absolute. There are very few areas that aren't covered by this Constitutional protection. Defamation is one of those areas. But defamation isn't what so many people apparently believe it is -- i.e., unpleasant things being said about/to them. Many nasty things can be said without rising to the level of defamation, but that's rarely considered before lawsuits get filed. Anti-SLAPP laws -- instituted by far too few states -- ensure that aggrieved parties double-check their allegations before filing a defamation suit.

Nevada has a perfectly fine anti-SLAPP law, but aggrieved parties who'd rather exercise their perceived "right" to use bogus lawsuits as speech suppression devices are looking to carve out everything about the statute that makes it a deterrent. The person chosen to sell this dismantling of legal protections is Mitchell Langberg, outside counsel for Wynn Resorts (and self-proclaimed "expert" on anti-SLAPP laws). Steve Wynn, the company's owner, recently lost a defamation lawsuit in California, thanks to its anti-SLAPP law. Now, he wants the law changed on his home turf. Langberg appeared (by phone) on Nevada Public Radio to argue on behalf of his employer -- as well as on behalf of the Roca Labs and Thomas Cooleys of the nation. When you're sticking up for plaintiffs like these, what do you say? What can you say?

Well, apparently you start by referring to online criticism as "online terrorism" before heading towards even worse assertions.

According to Langberg, the existing law is too broad and offers too much protection to the public. He wants to remove the "clear and convincing evidence" stipulation and replace it with a much lower bar of "some evidence." (He refers to a "70-75% convincing" evidentiary standard, which I don't even know what that means…) He also claims the statute is "intimidating" to businesses, especially the small ones, who feel they must just deal with criticism -- even false criticism -- because they have no way of proving the statements made are false, at least not to the extent that the law demands.

The unspoken summation of these points is this: if potential plaintiffs are finding it hard to prove defamation, chances are it doesn't rise to the level of defamation.

But it gets worse from there. By four minutes into his call, Langberg has referred to Yelp as being a "mechanism" that allows for "online terrorism and character assassination." A few minutes after that and he's reduced to regurgitating anti-speech cliches.

First, there's the qualified support of free speech, which always starts with the person arguing for limiting speech giving his or her First Amendment version of the "some of my best friends are black" argument. ("I'm not racist…")

I support the First Amendment right to free speech. I'm a strong supporter of it. I have represented newspapers in my career against defamation complaints.

I'm also a strong supporter of people's rights to protect their reputation, which is also a First Amendment right -- the right to petition the government when you've been harmed -- by filing lawsuits.

So far, it's mostly acceptable, although it seems clear Langberg is far more concerned with upholding the rights of the latter group, which apparently values "petitioning" over exercising their right to counter critical speech with speech of their own.

Then the love for the First Amendment starts slipping.

There is no First Amendment right to say false things.

Sometimes true, but context matters (satire, etc.). And statements of opinion are often misconstrued by litigants as false statements.

And then, Langberg destroys his own reputation as an expert on anything speech-related.

There is no First Amendment right to scream "fire" in a theater.

Every state's bar association should add a stipulation providing for the banning of any lawyer uttering this phrase from acting as counsel in First Amendment lawsuits. The only people who deploy this phrase are those who can't find anything coherent (or precedential) to support their particular beliefs as to what the First Amendment should cover, rather than what it actually does. Meanwhile, we'll take the opportunity to point to Andy Sellars' excellent new post about all of the many times you can yell "fire" in a crowded theater.

And, continuing his way to the bottom of the rhetorical reef, chained to the mast of his swiftly-sinking arguments, Langberg then asserts that the right to free speech isn't actually a right.

The First Amendment right is a privilege and a responsibility.

Now that it's simultaneously a right and a privilege, all sorts of crazy things can be asserted.

There are certain limitations. You can't say anything you want, any time you want.

Agreed, but how can anyone not agree with such a robust strawman!

People's reputations are very, very valuable.

Certainly.

So there has to be a balance between people's right to speak freely and their necessary responsibility when they abuse that right.

What? There is a right to speak freely. Those who disagree hold the same right. You can't really "abuse" the right. You either stay within its bounds or you find yourself outside of its protections. Defamation is outside of that boundary. The law Langberg is arguing against does nothing to prevent the pursuit of defamation suits. But Langberg wants a law that allows him and his clients to hold people "responsible" for protected speech. That's why listeners are being subjected to this list of nonexistent exceptions to the First Amendment. Langberg needs the public to believe hurtful, mean statements of opinion are actually unprotected by the Constitution.

When they make false statements of fact, that's an abuse of that right.

No. It isn't. It's something not covered by the First Amendment. It isn't an "abuse" of that right. Someone who steals a gun from someone's house isn't "abusing" his Second Amendment right to keep and bear arms. He's a thief, not someone who acted irresponsibly within the confines of that right. Langberg is trying to paint protected and unprotected speech the same shade of gray.

On top of that, Langberg keeps steering the conversation away from who he's actually arguing for -- Wynn Resorts, a large corporation with a litigious background. He claims it's small businesses that will be hurt the most by the loss of the option to file bogus lawsuits. He continually asserts that the gutted, stripped law will also effectively deter frivolous lawsuits.

But his arguments against the existing anti-SLAPP lawsuit are contradictory. He says the stringent evidentiary standards will result in possibly legitimate cases being tossed out on "day one," with the plaintiffs being saddled with the defendant's legal fees -- something that could put these supposed "small businesses" out of business. Really? If suits can be tossed "before discovery, before a jury trial," as Langberg describes it, then there certainly can't be much in legal fees amassed by the point the court tosses the case.

Beyond that, Langberg overstates the law's current demands in terms of the level of proof needed to follow through on a defamation suit. Langberg portrays it as an almost-insurmountable obstacle of "clear and convincing evidence." As Marc Randazza points out later, the current statute demands no such thing.

Our current statute just requires the plaintiff to prove a "probability of prevailing." Not "most likely." A "probability."

If you can't get over that and you're a licensed attorney, why are you putting your signature on that complaint?

Good question. Langberg would apparently like to be applying his signature to more complaints, but state law sets the bar too high. Langberg isn't quite the First Amendment fan he portrays himself as. He's a fan of his version of the First Amendment. Unfortunately for him, the state's current anti-SLAPP law won't allow him to fully exercise his interpretation of other people's rights.

Filed Under: anti-slapp, fire, free speech, marc randazza, mitchell langberg, nevada, slapp, steve wynn, theater
Companies: wynn resorts

Can You Name Which Las Vegas Billionaire Casino Owner, Who Recently Lost A SLAPP Suit, Wants To Destroy Nevada's Anti-SLAPP Law?

from the or-is-there-more-than-one dept

Last week, we had a brief post on the disturbing news that Nevada's very good and very useful anti-SLAPP law was about to be destroyed by a new bill that basically gutted all of the important stuff in Nevada's bill. This would be pretty tragic, as anti-SLAPP laws are important in protecting free speech -- especially in protecting the free speech of those who challenge the wealthy and powerful. As you may know, there are a lot of wealthy and powerful people in Nevada, and it may be difficult to figure out which of them stand to benefit the most from killing off a law that prevents them from using hoards of cash to silence critics.

In the comments to our post, someone noted that casino billionaire Sheldon Adelson recently lost a defamation case thanks to Nevada's anti-SLAPP law and was told to pay up the legal fees of the guy he sued. Adelson is also pretty well-known for well-financed efforts for political causes he believes in. So that makes him a rather obvious choice. But over on his blog, Marc Randazza points the finger at a different Las Vegas casino-owning billionaire: Steve Wynn, arguing that Wynn also just lost a defamation lawsuit, thanks to California's anti-SLAPP law. Randazza points to some evidence tying a top Wynn lawyer/lobbyist, to the new effort.

And all I can think is, what is it about Las Vegas billionaire casino developer/owners that makes them so thin-skinned as to sue critics to try to silence their free speech?

Filed Under: anti-slapp, free speech, nevada, sheldon adelson, slapp, steve wynn

Nevada May Be About To Lose Its Great Anti-SLAPP Law

from the so-much-for-that dept

We've mentioned many times the importance of anti-SLAPP laws in protecting people who are being sued solely to try to shut them up. It's still a travesty that we don't have a federal anti-SLAPP law but are reliant on various state anti-SLAPP laws. In case you're not familiar with them, SLAPP stands for "Strategic Lawsuit Against Public Participation." Anti-SLAPP laws basically allow people who are sued to quickly get lawsuits dismissed when it's obvious that the entire point of the lawsuit is to silence whoever is being sued, rather than for any legitimate legal purpose. For years, California was seen as having one of the best anti-SLAPP laws, but in recent years both Texas and Nevada upped the ante in anti-SLAPP laws, making them even stronger. Nevada's had a particularly useful feature: it would award "reasonable costs, attorney's fees and monetary relief" for defendants who were wrongfully hit with SLAPP suits. Basically, it provided a real deterrent against SLAPP suits.

However, just two years after unanimously passing that bill, the Nevada Senate has just unanimously repealed that important provision, in the form of SB 444. If you take a look at the bill, you'll see it explicitly repeals the fee shifting section. Apparently, some people didn't like the fact that they might have to pay up for filing bogus lawsuits trying to stifle speech. If that were all it did it, it would be tragic enough, but as Popehat clearly describes, the bill also undermines the rest of the anti-SLAPP law in pretty nefarious ways, making the existing rules toothless.

The bill still needs to go through the state assembly and be signed by the governor, but it's really disappointing to see Nevada move backward on anti-SLAPP laws just as much of the rest of the country is moving forward. Nevada provided a useful anti-SLAPP model, but apparently someone wasn't happy about that.

Filed Under: anti-slapp, free speech, nevada, slapp