Case Study Brief for Business Law

Intellectual Property and Internet Law

Case 5.1

41 S.Ct. 113

254 U.S. 143

COCA-COLA CO.

v.

KOKE CO. OF AMERICA et al.

No. 101.

Argued Nov. 18 & 19, 1920.

Decided Dec. 6, 1920.

Mr. Justice HOLMES delivered the opinion of the Court.

This is a bill in equity brought by the Coca-Cola Company to prevent the infringement of its trade-mark Coca-Cola and unfair competition with it in its business of making and selling the beverage for which the trade-mark is used. The District Court gave the plaintiff a decree. 235 Fed. 408. This was reversed by the Circuit Court of Appeals. Koke Co. v. Coca-Cola Co., 255 Fed. 894, 167 C. C. A. 214. Subsequently a writ of certiorari was granted by this Court. 250 U. S. 637, 39 Sup. Ct. 493, 63 L. Ed. 1183.

It appears that after the plaintiff's predecessors in title had used the mark for some years it was registered under the Act of Congress of March 3, 1881 (21 Stat. 502), and again under the Act of February 20, 1905, c. 592, 33 Stat. 724 (Comp. St. section 9485 et seq.). Both the Courts below agree that subject to the one question to be considered the plaintiff has a right to equitable relief. Whatever may have been its original weakness, the mark for years has acquired a secondary significance and has indicated the plaintiff's product alone. It is found that defendant's mixture is made and sold in imitation of the plaintiff's and that the word "Koke' was chosen for the purpose of reaping the benefit of the advertising done by the plaintiff and of selling the imitation as and for the plaintiff's goods. The only obstacle found by the Circuit Court of Appeals in the way of continuing the injunction granted below was its opinion that the trade-mark in itself and the advertisements accompanying it made such fraudulent representations to the public that the plaintiff had lost its claim to any help from the Court. That is the question upon which the writ of certiorari was granted and the main one that we shall discuss.

(1) Of course a man is not to be protected in the use of a device the very purpose and effect of which is to swindle the public. But the defects of a plaintiff do not offer a very broad ground for allowing another to swindle him. The defence relied on here should be scrutinized with a critical eye. The main point is this: Before 1900 the beginning of the good will was more or less helped by the presence of cocaine, a drug that, like alcohol of caffein or opium, may be described as a deadly poison or as a valuable item of the pharmacopoeia according to the rhetorical purposes in view. The amount seems to have been very small, but it may have been enough to begin a bad habit and after the Food and Drug Act of June 30, 1906, c. 3915 (Comp. St. sections 8717-8728), if not earlier, long before this suit was brought, it was eliminated from the plaintiff's compound. Coca leaves still are used, to be sure, but after they have been subjected to a drastic process that removes from them every characteristic substance except a little tannin and still less chlorophyl. The cola nut, at best, on its side furnishes but a small portion of the caffein, which now is the only element that has appreciable effect. The comes mainly from other sources. It is argued that the continued use of the name imports a representation that has ceased to be true and that the representation is reinforced by a picture of coca leaves and cola nuts upon the label and by advertisements, which however were many years before this suit was brought, that the drink is an "ideal nerve tonic and stimulant,' etc., and that thus the very thing sought to be protected is used as a fraud. The agrument does not satisfy us. We are dealing here with a popular drink not with a medicine, and although what has been said might suggest that its attraction lay in producing the expectation of a toxic effect the facts point to a different conclusion. Since 1900 the sales have increased at a very great rate corresponding to a like increase in advertising. The name now characterizes a beverage to be had at almost any soda fountain. It means a single thing coming from a single source, and well known to the community. It hardly would be too much to say that the drink characterizes the name as much as the name the drink. In other words "Coca-Cola' probably means to most persons the plaintiff's familiar product to be had everywhere rather than a compound of particular substances. Although the fact did not appear in United States v. Coca-Cola Co., 241 U. S. 265, 289, 36 Sup. Ct. 573, 60 L. Ed. 995, Ann. Cas. 1917C, 487, we see no reason to doubt that, as we have said, it has acquired a secondary meaning in which perhaps the product is more emphasized than the producer but to which the producer is entitled. The coca leaves and whatever of cola nut is employed may be used to justify the continuance of the name or they may affect the flavor as the plaintiff contends, but before this suit was brought the plaintiff had advertised to the public that it must not expect and would not find cocaine, and had eliminated everything tending to suggest cocaine effects except the name and the picture of the leaves and nuts, which probably conveyed little or nothing to most who saw it. It appears to us that it would be going too far to deny the plaintiff relief against a palpable fraud because possibly here and there an ignorant person might call for the drink with the hope for incipient cocaine intoxication. The plaintiff's position must be judged by the facts as they were when the suit was begun, not by the facts of a different condition and an earlier time.

(2) The decree of the District Court restrains the defendant from using the word "Dope.' The plaintiff illustrated in a very striking way the fact that the word is one of the most featureless known even to the language of those who are incapable of discriminating speech. In some places it would be used to call for Coca-Cola. It equally would have been used to call for anything else having about it a faint aureole of poison. It does not suggest Coca-Cola by similarity and whatever objections there may be to its use, objections which the plaintiff equally makes to its application to Coca-Cola, we see no ground on which the plaintiff can claim a personal right to exclude the defendant from using it. The product including the coloring matter is free to all who can make it if no extrinsic deceiving element is present. The injunction should be modified also in this respect.

Decree reversed. Decree of District Court modified and affirmed.

Criminal Law and Cyber Crime

Case 6.2

U.S.,2012.

Messerschmidt v. Millender

132 S.Ct. 1235, 80 BNA USLW 4165, 12 Cal. Daily Op. Serv. 2113, 2012 Daily Journal D.A.R. 2304

Supreme Court of the United States

Curt MESSERSCHMIDT, et al., Petitioners

v.

Brenda MILLENDER, as executor of the Estate of Augusta Millender, deceased, et al.

No. 10–704.

Argued Dec. 5, 2011.

Decided Feb. 22, 2012.

Chief Justice ROBERTS delivered the opinion of the Court.

Petitioner police officers conducted a search of respondents' home pursuant to a warrant issued by a neutral magistrate. The warrant authorized a search for all guns and gang-related material, in connection with the investigation of a known gang member for shooting at his ex-girlfriend with a pistol-gripped sawed-off shotgun, because she had “call[ed] the cops” on him. App. 56. Respondents brought an action seeking to hold the officers personally liable under 42 U.S.C. § 1983, alleging that the search violated their Fourth Amendment rights because there was not sufficient probable cause to believe the items sought were evidence of a crime. In particular, respondents argued that there was no basis to search for all guns simply because the suspect owned and had used a sawed-off shotgun, and no reason to search for gang material because the shooting at the ex-girlfriend for “call [ing] the cops” was solely a domestic dispute. The Court of Appeals for the Ninth Circuit held that the warrant was invalid, and that the officers were not entitled to immunity from personal liability because this invalidity was so obvious that any reasonable officer would have recognized it, despite the magistrate's approval. We disagree and reverse.

I

A

Shelly Kelly decided to break off her romantic relationship with Jerry Ray Bowen and move out of her apartment, to which Bowen had a key. Kelly feared an attack from Bowen, who had previously assaulted her and had been convicted of multiple violent felonies. She therefore asked officers from the Los Angeles County Sheriff's Department to accompany her while she gathered her things. Deputies from the Sheriff's Department came to assist Kelly but were called away to respond to an emergency before the move was complete.

As soon as the officers left, an enraged Bowen appeared at the bottom of the stairs to the apartment, yelling “I told you never to call the cops on me bitch!” App. 39, 56. Bowen then ran up the stairs to Kelly, grabbed her by her shirt, and tried to throw her over the railing of the second-story landing. When Kelly successfully resisted, Bowen bit her on the shoulder and attempted to drag her inside the apartment by her hair. Kelly again managed to escape Bowen's grasp, and ran to her car. By that time, Bowen had retrieved a black sawed-off shotgun with a pistol grip. He ran in front of Kelly's car, pointed the shotgun at her, and told Kelly that if she tried to leave he would kill her. Kelly leaned over, fully depressed the gas pedal, and sped away. Bowen fired at the car a total of five times, blowing out the car's left front tire in the process, but Kelly managed to escape.

Kelly quickly located police officers and reported the assault. She told the police what had happened—that Bowen had attacked her after becoming “angry because she had called the Sheriff's Department”—and she mentioned that Bowen was “an active member of the ‘Mona Park Crips,’ ” a local street gang. Id., at 39. Kelly also provided the officers with photographs of Bowen.

Detective Curt Messerschmidt was assigned to investigate the incident. Messerschmidt met with Kelly to obtain details of the assault and information about Bowen. Kelly described the attack and informed Messerschmidt that she thought Bowen was staying at his foster mother's home at 2234 East 120th Street. Kelly also informed Messerschmidt of Bowen's previous assaults on her and of his gang ties.

Messerschmidt then conducted a background check on Bowen by consulting police records, California Department of Motor Vehicles records, and the “cal-gang” database. Based on this research, Messerschmidt confirmed Bowen's connection to the 2234 East 120th Street address. He also confirmed that Bowen was an “active” member of the Mona Park Crips and a “secondary” member of the Dodge City Crips. Id., at 64. Finally, Messerschmidt learned that Bowen had been arrested and convicted for numerous violent and firearm-related offenses. Indeed, at the time of the investigation, Bowen's “rapsheet” spanned over 17 printed pages, and indicated that he had been arrested at least 31 times. Nine of these arrests were for firearms offenses and six were for violent crimes, including three arrests for assault with a deadly weapon (firearm). Id., at 72–81.

Messerschmidt prepared two warrants: one to authorize Bowen's arrest and one to authorize the search of 2234 East 120th Street. An attachment to the search warrant described the property that would be the object of the search:

“All handguns, rifles, or shotguns of any caliber, or any firearms capable of firing ammunition, or firearms or devices modified or designed to allow it [sic ] to fire ammunition. All caliber of ammunition, miscellaneous gun parts, gun cleaning kits, holsters which could hold or have held any caliber handgun being sought. Any receipts or paperwork, showing the purchase, ownership, or possession of the handguns being sought. Any firearm for which there is no proof of ownership. Any firearm capable of firing or chambered to fire any caliber ammunition.

“Articles of evidence showing street gang membership or affiliation with any Street Gang to include but not limited to any reference to ‘Mona Park Crips', including writings or graffiti depicting gang membership, activity or identity. Articles of personal property tending to establish the identity of person [sic ] in control of the premise or premises. Any photographs or photograph albums depicting persons, vehicles, weapons or locations, which may appear relevant to gang membership, or which may depict the item being sought and or believed to be evidence in the case being investigated on this warrant, or which may depict evidence of criminal activity. Additionally to include any gang indicia that would establish the persons being sought in this warrant, affiliation or membership with the ‘Mona Park Crips' street gang.” Id., at 52.

Two affidavits accompanied Messerschmidt's warrant applications. The first affidavit described Messerschmidt's extensive law enforcement experience, including that he had served as a peace officer for 14 years, that he was then assigned to a “specialized unit” “investigating gang related crimes and arresting gang members for various violations of the law,” that he had been involved in “hundreds of gang related incidents, contacts, and or arrests” during his time on the force, and that he had “received specialized training in the field of gang related crimes” and training in “gang related shootings.” Id., at 53–54.

The second affidavit—expressly incorporated into the search warrant—explained why Messerschmidt believed there was sufficient probable cause to support the warrant. That affidavit described the facts of the incident involving Kelly and Bowen in great detail, including the weapon used in the assault. The affidavit recounted that Kelly had identified Bowen as the assailant and that she thought Bowen might be found at 2234 East 120th Street. It also reported that Messerschmidt had “conducted an extensive background search on the suspect by utilizing departmental records, state computer records, and other police agency records,” and that from that information he had concluded that Bowen resided at 2234 East 120th Street. Id., at 58.

The affidavit requested that the search warrant be endorsed for night service because “information provided by the victim and the cal-gang data base” indicated that Bowen had “gang ties to the Mona Park Crip gang” and that “night service would provide an added element of safety to the community as well as for the deputy personnel serving the warrant.” Id., at 59. The affidavit concluded by noting that Messerschmidt “believe[d] that the items sought” would be in Bowen's possession and that “recovery of the weapon could be invaluable in the successful prosecution of the suspect involved in this case, and the curtailment of further crimes being committed.” Ibid.

Messerschmidt submitted the warrants to his supervisors—Sergeant Lawrence and Lieutenant Ornales—for review. Deputy District Attorney Janet Wilson also reviewed the materials and initialed the search warrant, indicating that she agreed with Messerschmidt's assessment of probable cause. Id., at 27, 47. Finally, Messerschmidt submitted the warrants to a magistrate. The magistrate approved the warrants and authorized night service.

The search warrant was served two days later by a team of officers that included Messerschmidt and Lawrence. Sheriff's deputies forced open the front door of 2234 East 120th Street and encountered Augusta Millender—a woman in her seventies—and Millender's daughter and grandson. As instructed by the police, the Millenders went outside while the residence was secured but remained in the living room while the search was conducted. Bowen was not found in the residence. The search did, however, result in the seizure of Augusta Millender's shotgun, a California Social Services letter addressed to Bowen, and a box of .45–caliber ammunition.

Bowen was arrested two weeks later after Messerschmidt found him hiding under a bed in a motel room.

B

The Millenders filed suit in Federal District Court against the County of Los Angeles, the sheriff's department, the sheriff, and a number of individual officers, including Messerschmidt and Lawrence. The complaint alleged, as relevant here, that the search warrant was invalid under the Fourth Amendment. It sought damages from Messerschmidt and Lawrence, among others.

The parties filed cross motions for summary judgment on the validity of the search warrant. The District Court found the warrant defective in two respects. The District Court concluded that the warrant's authorization to search for firearms was unconstitutionally overbroad because the “crime specified here was a physical assault with a very specific weapon”—a black sawed-off shotgun with a pistol grip—negating any need to “search for all firearms.” Millender v. County of Los Angeles, Civ. No. 05–2298 (C.D.Cal., Mar. 15, 2007), App. to Pet. for Cert. 106, 157, 2007 WL 7589200, *21. The court also found the warrant overbroad with respect to the search for gang-related materials, because there “was no evidence that the crime at issue was gang-related.” App. to Pet. for Cert. 157. As a result, the District Court granted summary judgment to the Millenders on their constitutional challenges to the firearm and gang material aspects of the search warrant. Id., at 160. The District Court also rejected the officers' claim that they were entitled to qualified immunity from damages. Id., at 171.

Messerschmidt and Lawrence appealed, and a divided panel of the Court of Appeals for the Ninth Circuit reversed the District Court's denial of qualified immunity. 564 F.3d 1143 (2009). The court held that the officers were entitled to qualified immunity because “they reasonably relied on the approval of the warrant by a deputy district attorney and a judge.” Id., at 1145.

The Court of Appeals granted rehearing en banc and affirmed the District Court's denial of qualified immunity. 620 F.3d 1016 (C.A.9 2010). The en banc court concluded that the warrant's authorization was unconstitutionally overbroad because the affidavit and the warrant failed to “establish [ ] probable cause that the broad categories of firearms, firearm-related material, and gang-related material described in the warrant were contraband or evidence of a crime.” Id., at 1033. In the en banc court's view, “the deputies had probable cause to search for a single, identified weapon.... They had no probable cause to search for the broad class of firearms and firearm-related materials described in the warrant.” Id., at 1027. In addition, “[b]ecause the deputies failed to establish any link between gang-related materials and a crime, the warrant authorizing the search and seizure of all gang-related evidence [was] likewise invalid.” Id., at 1031. Concluding that “a reasonable officer in the deputies' position would have been well aware of this deficiency,” the en banc court held that the officers were not entitled to qualified immunity. Id., at 1033–1035.

There were two separate dissenting opinions. Judge Callahan determined that “the officers had probable cause to search for and seize any firearms in the home in which Bowen, a gang member and felon, was thought to reside.” Id., at 1036. She also concluded that “the officers reasonably relied on their superiors, the district attorney, and the magistrate to correct” any overbreadth in the warrant, and that the officers were entitled to qualified immunity because their actions were not objectively unreasonable. Id., at 1044, 1049. Judge Silverman also dissented, concluding that the “deputies' belief in the validity of ... the warrant was entirely reasonable” and that the “record [wa]s totally devoid of any evidence that the deputies acted other than in good faith.” Id., at 1050. Judge Tallman joined both dissents.

We granted certiorari. 564 U.S. ––––, 131 S.Ct. 3057, 180 L.Ed.2d 884 (2011).

II

The Millenders allege that they were subjected to an unreasonable search in violation of the Fourth Amendment because the warrant authorizing the search of their home was not supported by probable cause. They seek damages from Messerschmidt and Lawrence for their roles in obtaining and executing this warrant. The validity of the warrant is not before us. The question instead is whether Messerschmidt and Lawrence are entitled to immunity from damages, even assuming that the warrant should not have been issued.

[1][2][3] “The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Qualified immunity “gives government officials breathing room to make reasonable but mistaken judgments,” and “protects ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Ashcroft v. al-Kidd, 563 U.S. ––––, ––––, 131 S.Ct. 2074, 2085, 179 L.Ed.2d 1149 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). “[W]hether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the ‘objective legal reasonableness' of the action, assessed in light of the legal rules that were ‘clearly established’ at the time it was taken.” Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (citation omitted).

[4][5] Where the alleged Fourth Amendment violation involves a search or seizure pursuant to a warrant, the fact that a neutral magistrate has issued a warrant is the clearest indication that the officers acted in an objectively reasonable manner or, as we have sometimes put it, in “objective good faith.” United States v. Leon, 468 U.S. 897, 922–923, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).FN1 Nonetheless, under our precedents, the fact that a neutral magistrate has issued a warrant authorizing the allegedly unconstitutional search or seizure does not end the inquiry into objective reasonableness. Rather, we have recognized an exception allowing suit when “it is obvious that no reasonably competent officer would have concluded that a warrant should issue.” Malley, 475 U.S., at 341, 106 S.Ct. 1092. The “shield of immunity” otherwise conferred by the warrant, id., at 345, 106 S.Ct. 1092, will be lost, for example, where the warrant was “based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Leon, 468 U.S., at 923, 104 S.Ct. 3405 (internal quotation marks omitted).FN2

FN1. Although Leon involved the proper application of the exclusionary rule to remedy a Fourth Amendment violation, we have held that “the same standard of objective reasonableness that we applied in the context of a suppression hearing in Leon defines the qualified immunity accorded an officer” who obtained or relied on an allegedly invalid warrant. Malley v. Briggs, 475 U.S. 335, 344, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) (citation omitted); Groh v. Ramirez, 540 U.S. 551, 565, n. 8, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004).

FN2. The dissent relies almost entirely on facts outside the affidavit, including Messerschmidt's deposition testimony, post, at 1254, 1258 (opinion of SOTOMAYOR, J.), crime analysis forms, post, at 1254 – 1255, Kelly's interview, post, at 1254 – 1256, and n. 5, Messerschmidt's notes regarding Kelly's interview, post, at 1255, n. 5, and even several briefs filed in the District Court and the Court of Appeals, post, at 1256 – 1257, 1258 – 1259. In contrast, the dissent cites the probable cause affidavit itself only twice. See post, at 1258 – 1259. There is no contention before us that the affidavit was misleading in omitting any of the facts on which the dissent relies. Cf. Leon, 468 U.S., at 923, 104 S.Ct. 3405.

[6] Our precedents make clear, however, that the threshold for establishing this exception is a high one, and it should be. As we explained in Leon, “[i]n the ordinary case, an officer cannot be expected to question the magistrate's probable-cause determination” because “[i]t is the magistrate's responsibility to determine whether the officer's allegations establish probable cause and, if so, to issue a warrant comporting in form with the requirements of the Fourth Amendment.” Id., at 921, 104 S.Ct. 3405; see also Malley, supra, at 346, n. 9, 106 S.Ct. 1092 (“It is a sound presumption that the magistrate is more qualified than the police officer to make a probable cause determination, and it goes without saying that where a magistrate acts mistakenly in issuing a warrant but within the range of professional competence of a magistrate, the officer who requested the warrant cannot be held liable” (internal quotation marks and citation omitted)).

III

The Millenders contend, and the Court of Appeals held, that their case falls into this narrow exception. According to the Millenders, the officers “failed to provide any facts or circumstances from which a magistrate could properly conclude that there was probable cause to seize the broad classes of items being sought,” and “[n]o reasonable officer would have presumed that such a warrant was valid.” Brief for Respondents 27. We disagree.

A

[7] With respect to the warrant's authorization to search for and seize all firearms, the Millenders argue that “a reasonably well-trained officer would have readily perceived that there was no probable cause to search the house for all firearms and firearm-related items.” Id., at 32. Noting that “the affidavit indicated exactly what item was evidence of a crime—the ‘black sawed off shotgun with a pistol grip,’ ” they argue that “[n]o facts established that Bowen possessed any other firearms, let alone that such firearms (if they existed) were ‘contraband or evidence of a crime.’ ” Ibid. (quoting App. 56).

Even if the scope of the warrant were overbroad in authorizing a search for all guns when there was information only about a specific one, that specific one was a sawed-off shotgun with a pistol grip, owned by a known gang member, who had just fired the weapon five times in public in an attempt to murder another person, on the asserted ground that she had “call[ed] the cops” on him. Id., at 56. Under these circumstances—set forth in the warrant—it would not have been unreasonable for an officer to conclude that there was a “fair probability” that the sawed-off shotgun was not the only firearm Bowen owned. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). And it certainly would have been reasonable for an officer to assume that Bowen's sawed-off shotgun was illegal. Cf. 26 U.S.C. §§ 5845(a), 5861(d). Evidence of one crime is not always evidence of several, but given Bowen's possession of one illegal gun, his gang membership, his willingness to use the gun to kill someone, and his concern about the police, a reasonable officer could conclude that there would be additional illegal guns among others that Bowen owned.FN3

FN3. The dissent caricatures our analysis as being that “because Bowen fired one firearm, it was reasonable for the police to conclude ... that [he] must have possessed others,” post, at 1258 (opinion of SOTOMAYOR, J.). This simply avoids coming to grips with the facts of the crime at issue.

A reasonable officer also could believe that seizure of the firearms was necessary to prevent further assaults on Kelly. California law allows a magistrate to issue a search warrant for items “in the possession of any person with the intent to use them as a means of committing a public offense,” Cal.Penal Code Ann. § 1524(a)(3) (West 2011), and the warrant application submitted by the officers specifically referenced this provision as a basis for the search. App. 48. Bowen had already attempted to murder Kelly once with a firearm, and had yelled “I'll kill you” as she tried to escape from him. Id., at 56–57. A reasonable officer could conclude that Bowen would make another attempt on Kelly's life and that he possessed other firearms “with the intent to use them” to that end. Cal.Penal Code Ann. § 1524(a)(3).

Given the foregoing, it would not have been “entirely unreasonable” for an officer to believe, in the particular circumstances of this case, that there was probable cause to search for all firearms and firearm-related materials. Leon, supra, at 923, 104 S.Ct. 3405 (internal quotation marks omitted).

[8] With respect to the warrant's authorization to search for evidence of gang membership, the Millenders contend that “no reasonable officer could have believed that the affidavit presented to the magistrate contained a sufficient basis to conclude that the gang paraphernalia sought was contraband or evidence of a crime.” Brief for Respondents 28. They argue that “the magistrate [could not] have reasonably concluded, based on the affidavit, that Bowen's gang membership had anything to do with the crime under investigation” because “[t]he affidavit described a ‘spousal assault’ that ensued after Kelly decided to end her ‘on going dating relationship’ with Bowen” and “[n]othing in that description suggests that the crime was gang-related.” Ibid. (quoting App. 55).

This effort to characterize the case solely as a domestic dispute, however, is misleading. Cf. post, at 1254 – 1255 (SOTOMAYOR, J., dissenting); post, at 1251 – 1252 (KAGAN, J., concurring in part and dissenting in part). Messerschmidt began his affidavit in support of the warrant by explaining that he “has been investigating an assault with a deadly weapon incident” and elaborated that the crime was a “spousal assault and an assault with a deadly weapon.” App. 55 (emphasis added). The affidavit also stated that Bowen was “a known Mona Park Crip gang member” “based on information provided by the victim and the cal-gang database,” FN4 and that he had attempted to murder Kelly after becoming enraged that she had “call[ed] the cops on [him].” Id., at 56, 58–59. A reasonable officer could certainly view Bowen's attack as motivated not by the souring of his romantic relationship with Kelly but instead by a desire to prevent her from disclosing details of his gang activity to the police. She was, after all, no longer linked with him as a girlfriend; he had assaulted her in the past; and she had indeed called the cops on him. And, as the affidavit supporting the warrant made clear, Kelly had in fact given the police information about Bowen's gang ties. Id., at 59.FN5

FN4. Although the cal-gang database states that information contained therein cannot be used to establish probable cause, see App. 64, the affidavit makes clear that Kelly also provided this information to Messerschmidt, id., at 59, as she did to the deputies who initially responded to the attack, id., at 39 (describing Kelly's statement that Bowen was “an active member of the ‘Mona Park Crips' ”). We therefore need not decide whether the cal-gang database's disclaimer is relevant to Fourth Amendment analysis.

FN5. Contrary to the dissent's suggestion, see post, at 1255, n. 5 (opinion of SOTOMAYOR, J.), the affidavit's account of Bowen's statements is consistent with other accounts of the confrontation, in particular the report prepared by the officers who spoke with Kelly immediately after the attack. See App. 39 (stating that when Bowen “appeared at the base of the stairs and began yelling at [Kelly,] [h]e was angry because she had called the Sheriff's Department”). And at no point during this litigation has the accuracy of the affidavit's account of the attack been called into question.

[9] It would therefore not have been unreasonable—based on the facts set out in the affidavit—for an officer to believe that evidence regarding Bowen's gang affiliation would prove helpful in prosecuting him for the attack on Kelly. See Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 307, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) (holding that the Fourth Amendment allows a search for evidence when there is “probable cause ... to believe that the evidence sought will aid in a particular apprehension or conviction”). Not only would such evidence help to establish motive, either apart from or in addition to any domestic dispute, it would also support the bringing of additional, related charges against Bowen for the assault. See, e.g., Cal.Penal Code Ann. § 136.1(b)(1) (West 1999) (It is a crime to “attempt [ ] to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from ... [m]aking any report of that victimization to any ... law enforcement officer”).FN6

FN6. The dissent relies heavily on Messerschmidt's deposition, in which he stated that Bowen's crime was not a “gang crime.” See post, at 1254 – 1256. Messerschmidt's belief about the nature of the crime, however, is not information he possessed but a conclusion he reached based on information known to him. See Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). We have “eschew[ed] inquiries into the subjective beliefs of law enforcement officers who seize evidence pursuant to a subsequently invalidated warrant.” United States v. Leon, 468 U.S. 897, 922, n. 23, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); see also Harlow v. Fitzgerald, 457 U.S. 800, 815–819, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). In any event, as the dissent recognizes, the inquiry under our precedents is whether “a reasonably well-trained officer in petitioner's position would have known that his affidavit failed to establish probable cause.” Malley, 475 U.S., at 345, 106 S.Ct. 1092 (emphasis added). Messerschmidt's own evaluation does not answer the question whether it would have been unreasonable for an officer to have reached a different conclusion from the facts in the affidavit. See n. 2, supra.

In addition, a reasonable officer could believe that evidence demonstrating Bowen's membership in a gang might prove helpful in impeaching Bowen or rebutting various defenses he could raise at trial. For example, evidence that Bowen had ties to a gang that uses guns such as the one he used to assault Kelly would certainly be relevant to establish that he had familiarity with or access to this type of weapon.

[10] Moreover, even if this were merely a domestic dispute, a reasonable officer could still conclude that gang paraphernalia found at the Millenders' residence would aid in the prosecution of Bowen by, for example, demonstrating Bowen's connection to other evidence found there. The warrant authorized a search for “any gang indicia that would establish the persons being sought in this warrant,” and “[a]rticles of personal property tending to establish the identity of [the] person in control of the premise or premises.” App. 52. Before the District Court, the Millenders “acknowledge[d] that evidence of who controlled the premises would be relevant if incriminating evidence were found and it became necessary to tie that evidence to a person,” and the District Court approved that aspect of the warrant on this basis. App. to Pet. for Cert. 158–159 (internal quotation marks omitted). Given Bowen's known gang affiliation, a reasonable officer could conclude that gang paraphernalia found at the residence would be an effective means of demonstrating Bowen's control over the premises or his connection to evidence found there.FN7

FN7. The Fourth Amendment does not require probable cause to believe evidence will conclusively establish a fact before permitting a search, but only “probable cause ... to believe the evidence sought will aid in a particular apprehension or conviction.” Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 307, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) (emphasis added). Even if gang evidence might have turned out not to be conclusive because other members of the Millender household also had gang ties, see post, at 1256 – 1257 (opinion of SOTOMAYOR, J.); post, at 1251 – 1252 (opinion of KAGAN, J.), a reasonable officer could still conclude that evidence of gang membership would help show Bowen's connection to the residence. Such evidence could, for example, have displayed Bowen's gang moniker (“C Jay”) or could have been identified by Kelly as belonging to Bowen. See App. 64.

Whatever the use to which evidence of Bowen's gang involvement might ultimately have been put, it would not have been “entirely unreasonable” for an officer to believe that the facts set out in the affidavit established a fair probability that such evidence would aid the prosecution of Bowen for the criminal acts at issue. Leon, 468 U.S., at 923, 104 S.Ct. 3405 (internal quotation marks omitted).

B

Whether any of these facts, standing alone or taken together, actually establish probable cause is a question we need not decide. Qualified immunity “gives government officials breathing room to make reasonable but mistaken judgments.” al-Kidd, 563 U.S., at ––––, 131 S.Ct., at 2085. The officers' judgment that the scope of the warrant was supported by probable cause may have been mistaken, but it was not “plainly incompetent.” Malley, 475 U.S., at 341, 106 S.Ct. 1092.

[11] On top of all this, the fact that the officers sought and obtained approval of the warrant application from a superior and a deputy district attorney before submitting it to the magistrate provides further support for the conclusion that an officer could reasonably have believed that the scope of the warrant was supported by probable cause. Ibid. Before seeking to have the warrant issued by a magistrate, Messerschmidt conducted an extensive investigation into Bowen's background and the facts of the crime. Based on this investigation, Messerschmidt prepared a detailed warrant application that truthfully laid out the pertinent facts. The only facts omitted—the officers' knowledge of Bowen's arrest and conviction records, see supra, at 1241 – 1242 —would only have strengthened the warrant. Messerschmidt then submitted the warrant application for review by Lawrence, another superior officer, and a deputy district attorney, all of whom approved the application without any apparent misgivings. Only after this did Messerschmidt seek the approval of a neutral magistrate, who issued the requested warrant. The officers thus “took every step that could reasonably be expected of them.” Massachusetts v. Sheppard, 468 U.S. 981, 989, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984). In light of the foregoing, it cannot be said that “no officer of reasonable competence would have requested the warrant.” Malley, 475 U.S., at 346, n. 9, 106 S.Ct. 1092. Indeed, a contrary conclusion would mean not only that Messerschmidt and Lawrence were “plainly incompetent,” id., at 341, 106 S.Ct. 1092, but that their supervisor, the deputy district attorney, and the magistrate were as well.

The Court of Appeals, however, gave no weight to the fact that the warrant had been reviewed and approved by the officers' superiors, a deputy district attorney, and a neutral magistrate. Relying on Malley, the court held that the officers had an “independent responsibility to ensure there [was] at least a colorable argument for probable cause.” 620 F.3d, at 1034. It explained that “[t]he deputies here had a responsibility to exercise their reasonable professional judgment,” and that “in circumstances such as these a neutral magistrate's approval (and, a fortiori, a non-neutral prosecutor's) cannot absolve an officer of liability.” Ibid. (citation omitted).

We rejected in Malley the contention that an officer is automatically entitled to qualified immunity for seeking a warrant unsupported by probable cause, simply because a magistrate had approved the application. 475 U.S., at 345, 106 S.Ct. 1092. And because the officers' superior and the deputy district attorney are part of the prosecution team, their review also cannot be regarded as dispositive. But by holding in Malley that a magistrate's approval does not automatically render an officer's conduct reasonable, we did not suggest that approval by a magistrate or review by others is irrelevant to the objective reasonableness of the officers' determination that the warrant was valid. Indeed, we expressly noted that we were not deciding “whether [the officer's] conduct in [that] case was in fact objectively reasonable.” Id., at 345, n. 8, 106 S.Ct. 1092. The fact that the officers secured these approvals is certainly pertinent in assessing whether they could have held a reasonable belief that the warrant was supported by probable cause.

C

In holding that the warrant in this case was so obviously defective that no reasonable officer could have believed it was valid, the court below relied heavily on our decision in Groh v. Ramirez, 540 U.S. 551, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004), but that precedent is far afield. There, we held that officers who carried out a warrant-approved search were not entitled to qualified immunity because the warrant in question failed to describe the items to be seized at all. Id., at 557, 124 S.Ct. 1284. We explained that “[i]n the portion of the form that called for a description of the ‘person or property’ to be seized, [the applicant] typed a description of [the target's] two-story blue house rather than the alleged stockpile of firearms.” Id., at 554, 124 S.Ct. 1284. Thus, the warrant stated nonsensically that “ ‘there is now concealed [on the specified premises] a certain person or property, namely [a] single dwelling residence two story in height which is blue in color and has two additions attached to the east.’ ” Id., at 554–555, n. 2, 124 S.Ct. 1284 (bracketed material in original). Because “even a cursory reading of the warrant in [that] case—perhaps just a simple glance—would have revealed a glaring deficiency that any reasonable police officer would have known was constitutionally fatal,” id., at 564, 124 S.Ct. 1284, we held that the officer was not entitled to qualified immunity.

The instant case is not remotely similar. In contrast to Groh, any defect here would not have been obvious from the face of the warrant. Rather, any arguable defect would have become apparent only upon a close parsing of the warrant application, and a comparison of the affidavit to the terms of the warrant to determine whether the affidavit established probable cause to search for all the items listed in the warrant. This is not an error that “just a simple glance” would have revealed. Ibid. Indeed, unlike in Groh, the officers here did not merely submit their application to a magistrate. They also presented it for review by a superior officer, and a deputy district attorney, before submitting it to the magistrate. The fact that none of the officials who reviewed the application expressed concern about its validity demonstrates that any error was not obvious. Groh plainly does not control the result here.

* * *

The question in this case is not whether the magistrate erred in believing there was sufficient probable cause to support the scope of the warrant he issued. It is instead whether the magistrate so obviously erred that any reasonable officer would have recognized the error. The occasions on which this standard will be met may be rare, but so too are the circumstances in which it will be appropriate to impose personal liability on a lay officer in the face of judicial approval of his actions. Even if the warrant in this case were invalid, it was not so obviously lacking in probable cause that the officers can be considered “plainly incompetent” for concluding otherwise. Malley, supra, at 341, 106 S.Ct. 1092. The judgment of the Court of Appeals denying the officers qualified immunity must therefore be reversed.

It is so ordered.

Agreement and Consideration in Contracts

Case 7.3

Ga.App.,2011.

Powerhouse Custom Homes, Inc. v. 84 Lumber Co., L.P.

--- S.E.2d ----, 307 Ga.App. 605, 2011 WL 198375 (Ga.App.), 11 FCDR 148

Court of Appeals of Georgia.

POWERHOUSE CUSTOM HOMES, INC. et al.

v.

84 LUMBER COMPANY, L.P.

No. A10A2351.

Jan. 24, 2011.

MILLER, Presiding Judge.

84 Lumber Company, L.P. (“84 Lumber”) sued Powerhouse Custom Homes, Inc. (“Powerhouse”) and guarantor Lucian Anderson, Jr., to collect amounts owed on an open account. The trial court subsequently granted summary judgment in favor of 84 Lumber. Powerhouse and Anderson appeal, contending that the parties had entered into an enforceable settlement agreement, which precluded the entry of summary judgment in the suit. We discern no error and affirm.

Summary judgment is authorized when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See OCGA § 9-11-56(c); Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). “We review a grant of summary judgment de novo, construing the evidence and all reasonable inferences in favor of the nonmoving party.” (Citation omitted.) Traditional Properties v. Performance Food Group of Ga., 291 Ga.App. 442, 662 S.E.2d 250 (2008).

So viewed, the record shows that on November 6, 2002, Powerhouse entered into a credit agreement that allowed it to obtain building materials and labor from 84 Lumber for various construction projects. Anderson, the president of Powerhouse, signed a personal guaranty ensuring payment of any and all amounts due under the credit account. Thereafter, 84 Lumber sold and delivered building materials to Powerhouse under the credit account, resulting in a balance owed in the amount of $95,260.42.

After Powerhouse and Anderson failed to remit payment of the balance, 84 Lumber filed the instant suit to collect on the open account. During the suit, 84 Lumber served Powerhouse and Anderson with discovery requests, including a request for admissions. Powerhouse and Anderson failed to answer the request for admissions.

On August 20, 2009, the parties participated in a court-ordered mediation session. During the mediation session, the parties' counsel signed a mediation agreement, which contained a provision that established a ten-day deadline for objections. The provision stated that “[i]f there [was] no objection to the agreement within 10 calendar days following the mediation session, the agreement [would] be binding upon all parties [and be] enforceable as a settlement agreement.” The mediation agreement then set forth a settlement “proposal” presented by Powerhouse and Anderson for 84 Lumber's consideration. The proposal provided that it was “subject to acceptance or rejection by [84 Lumber] for fifteen calendar days” and that such was “the time [frame] [in which] the proposal [was] available for acceptance[.]”

84 Lumber did not accept the settlement proposal within the time frame set forth in the written document. Rather, on September 14, 2009, 84 Lumber's counsel expressly rejected the proposal. Thereafter, 84 Lumber filed a motion for summary judgment, along with an affidavit from its legal assistant that authenticated the account records and confirmed the amount owed. In response to the motion, Powerhouse and Anderson claimed that the case had been settled at the mediation session and attached a copy of the mediation agreement setting forth the proposal.

[1][2][3][4][5] The trial court conducted a hearing on the motion. At the hearing, counsel for Powerhouse and Anderson again argued that the case had been settled, but acknowledged that 84 Lumber had not communicated approval of the proposal set forth in the mediation agreement. Following the hearing, the trial court entered an order granting summary judgment in favor of 84 Lumber, finding that the mediation agreement did not amount to an enforceable settlement of the suit and that the defendants' failure to respond to the request for admissions resulted in the admission of all of the material facts supporting 84 Lumber's claims. We agree.

Under Georgia law, an agreement alleged to be in settlement and compromise of a pending lawsuit must meet the same requisites of formation and enforceability as any other contract. In this regard, it is well settled that an agreement between two parties will occur only when the minds of the parties meet at the same time, upon the same subject matter, and in the same sense.... [A]n answer to an offer will not amount to an acceptance, so as to result in a contract, unless it is unconditional and identical with the terms of the offer. To constitute a contract, the offer must be accepted unequivocally and without variance of any sort.

(Citations and punctuation omitted.) Jones v. Frickey, 274 Ga.App. 398, 401, 618 S.E.2d 29 (2005). “Absent such mutual agreement, there is no enforceable contract as between the parties.” (Citations and punctuation omitted.) Herring v. Dunning, 213 Ga.App. 695, 697, 446 S.E.2d 199 (1994).

[6] By its express terms, the mediation agreement referenced by Powerhouse and Anderson merely set forth a “proposal,” amounting to a settlement offer that was subject to acceptance or rejection by 84 Lumber. It is undisputed that 84 Lumber did not communicate acceptance of the proposal. It thus follows that no settlement agreement was reached. See Jones, supra, 274 Ga.App. at 402, 618 S.E.2d 29; Valiant Steel, etc. v. Roadway Express, 205 Ga.App. 237, 238-239(1), 421 S.E.2d 773 (1992); Meece v. McCroskey, 151 Ga.App. 369, 370-371, 259 S.E.2d 645 (1979).

Nevertheless, in support for their contention that a settlement had occurred, Powerhouse and Anderson rely upon the provision of the mediation agreement that established a ten-day deadline for objections. Their reliance upon this provision, however, is misplaced. The ten-day deadline provision for objections could only apply if an agreement had in fact been reached by acceptance of the proposal.FN1 Since 84 Lumber did not accept the proposal, no settlement agreement was reached, and the ten-day deadline provision was inapplicable.

Moreover, because Powerhouse and Anderson failed to respond or object to the request for admissions, the pertinent facts and legal conclusions set forth in the requests were deemed admitted as a matter of law under OCGA § 9-11-36(a)(2). See Jackson v. Nemdegelt, Inc., 302 Ga.App. 767, 769, 691 S.E.2d 653 (2010); Hammett v. Bailey, 147 Ga.App. 105, 106, 248 S.E.2d 180 (1978). The admissions conclusively established that Powerhouse and Anderson owed 84 Lumber the principal amount of $95,260.42 under the open account; that Powerhouse and Anderson had defaulted by failing to pay the debt owed; and that Powerhouse and Anderson owed accrued interest on the debt in the amount of $4,791.96 through January 21, 2009, plus accrued interest at a rate of 18% per annum from January 21, 2009, post-judgment interest, attorney fees, and costs. These admissions left no genuine issue of material fact on 84 Lumber's complaint, and thus, 84 Lumber was entitled to judgment as a matter of law. See Jackson, supra, 302 Ga.App. at 770-771, 691 S.E.2d 653; Hammett, supra, 147 Ga.App. at 106-107, 248 S.E.2d 180. Accordingly, the trial court did not err in granting summary judgment in favor of 84 Lumber. See id.

Judgment affirmed.

Contract Performance, Breach, and Remedies

Case 9.2

N.Y.Sup.App.Term,2010.

B-Sharp Musical Productions, Inc. v. Haber

--- N.Y.S.2d ----, 2010 WL 597196 (N.Y.Sup.App.Term), 2010 N.Y. Slip Op. 20049

Supreme Court, Appellate Term, New York,

First Department.

B-SHARP MUSICAL PRODUCTIONS, INC. d/b/a Hank Lane Music and Productions, Plaintiff-Respondent,

v.

James HABER and Jill S. Haber, Defendants-Appellants.

No. 570716/09.

Feb. 19, 2010.

Present: SCHOENFELD, J.P., SHULMAN, HUNTER, JJ.

PER CURIAM.

Order (Barbara Jaffe, J.), dated July 16, 2009, modified to grant that branch of defendants' cross motion seeking dismissal of the complaint as against defendant Jill S. Haber, and as so modified, affirmed, without costs.

Plaintiff and defendant James Haber entered into a contract pursuant to which plaintiff agreed to provide a designated 16-piece band on a specified date to perform at Mr. Haber's son's bar mitzvah. Mr. Haber was to pay approximately $30,000 for the band's services. The contract contained a liquidated damages clause stating, in pertinent part, “If [the contract] is terminated in writing by [Mr. Haber] for any reason within ninety (90) days prior to the engagement, the remaining balance of the contract will be immediately due and payable. If [the contract] is terminated in writing by [Mr. Haber] for any reason before the ninety (90) days period, 50% of the balance will be immediately due and payable.”

Less than 90 days prior to the date of the bar mitzvah, Mr. Haber sent a letter to plaintiff notifying it that he was cancelling the contract. After Mr. Haber refused plaintiff's demand that he pay the remaining amount due under the contract-approximately $25,000-plaintiff commenced this action against Mr. Haber and his wife, defendant Jill Haber. Civil Court granted plaintiff's motion for summary judgment on its cause of action to enforce the liquidated damages clause and denied defendants' cross motion for partial summary judgment dismissing that cause of action and the complaint as against Mrs. Haber.

[1] Given the nature of the contract and the particular circumstances underlying this case (see JMD Holding Corp. v. Congress Fin. Corp., 4 N.Y.3d 373, 379 [2005] ), Civil Court correctly determined that the subject provision of the contract is an enforceable liquidated damages clause, not an unenforceable penalty (see Truck Rent-A-Ctr. v. Puritan Farms 2nd, 41 N.Y.2d 420 [1977] ). “The clause, which in effect uses an estimate of [plaintiff's] chances of re-booking the [band] as the measure of [its] probable loss in the event of a cancellation, reflects an understanding that although the expense and possibility of re-booking a canceled [performance] could not be ascertained with certainty, as a practical matter the expense would become greater, and the possibility would become less, the closer to the [performance] the cancellation was made, until a point was reached, [90] days before [the performance], that any effort to re-book could not be reasonably expected” ( Turner-Schraeter v. Brighton Travel Bureau, Inc., 258 A.D.2d 393, 393-394 [1999] ).

[2] Defendants' argument that the cause of action to enforce the liquidated damages clause must be dismissed because the clause does not comply with the type size requirement of CPLR 4544 is without merit. In an effort to demonstrate that the clause did not comply with the statutory type size requirement, defendants submitted a copy of the contract with the image of a ruler imprinted in the margin. However, defendants failed to establish that the type size of the copy they submitted is identical to that of the original contract, a critical failure given the precision with which type size must be measured and calculated (see CPLR 105[t] ). Therefore, defendants failed to raise a triable issue as to whether the clause violated the statutory type size requirement (see Tsadilas v. Providian Nat. Bank, 13 A.D.3d 190 [2004], lv denied 5 N.Y.3d 702 [2005]; cf. Gulf Ins. Co. v. Kanen, 13 A.D.3d 579 [2004] ).

[3][4] We agree with defendants that the complaint should be dismissed as against Mrs. Haber. The contract was signed only by Mr. Haber, and no triable issue exists as to whether Mr. Haber executed the contract as Mrs. Haber's agent. We note in this connection that an agency relationship may not be implied or inferred solely by reason of the marital relationship of the couple (see Four Winds Hosp. v. Keasbey, 92 A.D.2d 478 [1983], mod on other grounds 59 N.Y.2d 943 [1983]; Kozecke v. Humble Oil & Refining Co., 46 A.D.2d 986 [1974] ).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.