As to matters not discussed herein, appellant relies on his opening brief.
The government wrongly argues that the court cannot review appellant's case unless he has shown "a fundamental defect which inherently results in a complete miscarriage of justice." Such a showing does not apply where, as here, the petitioner raises a question of constitutional error. Even if appellant had to meet the standard suggested by the government, a conviction and punishment for conduct which the law does not make criminal "inherently results in a complete miscarriage of justice." Davis v. United States, 417 U.S. 333, 346 (1974).
The government's complaint that appellant has not made a detailed argument showing "cause" for his failure to raise this issue previously should fail. Appellant was not given the opportunity to develop the record on his counsel's ineffective assistance because the district court denied his petition on the merits without holding an evidentiary hearing. Likewise, the government's complaint that appellant has not shown cause for defaulting on his ineffective assistance of counsel claim should fail because the government has waived this argument.
The fallacy of the government's central claim that a gun has been "used" within the meaning of the statute when it is "a means of exchange[,] regardless of which side of the transaction the gun is on" is demonstrated by the fact that "there is no grammatically correct way to express that a person receiving a payment is thereby 'using' the payment. United States v. Westmoreland, 122 F.3d 431, 436 (7th Cir. 1997). The government does not suggest any way to express its construction of the word "use."
The fact that the Supreme Court cited United States v. Harris, 959 F.2d 246 (D.C. Cir. 1991), cert. denied, 506 U.S. 932 (1992), in Smith v. United States, 508 U.S. 223 (1993), as evidence of a circuit split without distinguishing between the facts of the two cases is of no consequence to the determination whether one has "used" a gun by receiving it as payment. Harris, which held that the defendants used the gun by receiving it because it "facilitated" the underlying crime by "emboldening" the defendants, is not valid after the Supreme Court's decision in Bailey v. United States, 516 U.S. 137 (1995). Furthermore, the Supreme Court decided only one question in Smith: "[W]hether the barter of a gun for drugs was a 'use.'" This case presents a different question.
THE DISTRICT COURT ERRED BY DENYING APPELLANT'S MOTION PURSUANT TO 28 U.S.C. § 2255 WHERE APPELLANT WAS INNOCENT OF "USING" A FIREARM FOR PURPOSES OF 18 U.S.C. § 924(c) IN LIGHT OF BAILEY V. UNITED STATES, 516 U.S. 137 (1995).
The government seeks to impose a higher burden of proof on appellant than the Supreme Court has imposed. According to the government's formulation, to gain review on collateral attack, a petitioner must show "'a fundamental defect which inherently results in a complete miscarriage of justice," or 'an omission inconsistent with the rudimentary demands of fair procedure.'" (Government's Brief at 9-10, quoting United States v. Pollard, 959 F.2d 1011, 1020 (D.C. Cir.), cert. denied, 506 U.S. 915 (1992)). The government's formulation is wrong.
[U]nless the claim alleges a lack of jurisdiction or constitutional error, the scope of collateral attack has remained far more limited. The Court has held that an error of law does not provide a basis for collateral attack unless the claimed error constituted "a fundamental defect which inherently results in a complete miscarriage of justice."
Id. at 185 (citations omitted). See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (reviewing habeas petition raising constitutional trial error for "substantial and injurious effect or influence in determining the jury's verdict").
Appellant raises a claim of constitutional error (Appellant's Brief at 17). Constitutional due process requires that a guilty plea be knowing, voluntary and intelligent. See Bousley v. United States, 523 U.S. 614, 618 (1998). Moreover, the Supreme Court has held that a petitioner's claim that the evidence was insufficient to support a jury finding of "use" of a firearm under the Bailey decision is "constitutional in nature." Hohn v. United States, 524 U.S. 236, 240 (1998).
Even if appellant had to meet the standard suggested by the government, where a defendant has been convicted and punished "for an act that the law does not make criminal[, t]here can be no room for doubt that such a circumstance inherently results in a complete miscarriage of justice. . . ." Davis v. United States, 417 U.S. 333, 346 (1974). See United States v. Gobert, 139 F.3d 436, 438 (5th Cir. 1998) (holding in post-Bailey case that "a refusal to vacate a sentence where a change in the substantive law has placed the conduct for which the defendant was convicted beyond the scope of a criminal statute would result in a complete miscarriage of justice"); United States v. Bruno, 903 F.2d 393, 396 (5th Cir. 1990) (if conduct for which defendant was convicted is not a criminal violation, such a conviction would constitute a "complete miscarriage of justice"); United States v. Stoneman, 870 F.2d 102, 105 (3d Cir.) (same), cert. denied, 493 U.S. 891 (1989).
The government complains that appellant has not made a detailed argument showing "cause" for failing to raise this issue previously (Government's Brief at 10). Appellant has stated his belief that his attorney rendered ineffective assistance. An evidentiary hearing is required to develop the factual record, however. Appellant was not given the opportunity to develop the record because the district court did "not address whether petitioner has procedurally defaulted on his claim . . . ." in light of its disposition on the merits of appellant's claim (A. at 232).
With regard to appellant's "cause" for failing to challenge the validity of his guilty plea -- the ineffective assistance provided by his attorney -- the government complains that appellant also procedurally defaulted on his grounds for "cause" by not earlier alleging the ineffectiveness of his counsel. The government has waived this argument.
The Supreme Court has held that an appellate court is not required to sua sponte notice a potential procedural default where the government has waived or forfeited that claim. Trest v. Cain, 522 U.S. 87, 89 (1997). "[P]rocedural default is normally a 'defense' that the State is 'obligated to raise' and 'preserv[e]' if it is not to 'lose the right to assert the defense thereafter.'" Id. (quoting Gray v. Netherland, 518 U.S. 152, 116 S. Ct. 2074, 2082 (1996)). The Court left unanswered the question whether appellate courts may, under some circumstances, notice a procedural default where the government has waived or forfeited the claim. Id. That question should be answered in the negative.
Excusing the errors of one party, but not the other, calls into question the integrity and fairness of the judiciary. Even courts that have excused "procedurally defaulted" procedural default claims, do not do so as a routine matter. The Second Circuit has warned that appellate courts should not lightly raise the issue of a defendant's procedural default sua sponte . . . . [and] [s]hould hesitate to lend the weight of the judiciary to this already uneven fight, lest we be cast in the role of a second line of defense, protecting government prosecutors from their errors.
Rosario v. United States, 164 F.3d 729, 733 (2d Cir. 1998), cert. denied, 527 U.S. 1012 (1999). See Yeatts v. Angelone, 166 F.3d 255, 261 (4th Cir.) ("[T]he issue of procedural default generally is an affirmative defense that the state must plead in order to press the defense thereafter," but "on occasion" interests of comity and federalism allow court to ignore failure to raise and preserve claim), cert. denied, 526 U.S. 1095 (1999); Hines v. United States, 971 F.2d 506 (10th Cir. 1992) (that a court may consider a procedural bar sua sponte does not mean that a court "ordinarily should").
B. Appellant Did Not Use A Firearm When He Received It As Payment For Drugs.
The government's central point -- that the dictionary definitions of "use" apply to the "use" of a gun "as a means of exchange regardless of which side of the transaction the gun is on" is fallacious (Government's Brief at 16). The fallacy of the argument is demonstrated by the fact that "there is no grammatically correct way to express that a person receiving a payment is thereby 'using' the payment . . . ." United States v. Westmoreland, 122 F.3d 431, 436 (7th Cir. 1997). See Appellant's Brief at 13-17). The government does not suggest any grammatical construction of "use" that would apply to the receipt of payment.
Finally, the government makes two arguments for which there is no record support. First, the government cannot support its assertion that "[w]ithout the receipt of guns as partial payment for the crack cocaine provided to undercover agents on May 10, 1991, the transaction would not have taken place . . . ." (Government's Brief at 19). There is no record support for that claim. In fact, the most reasonable inference from the record leads to the conclusion that the transaction would have taken place whatever the form of payment since five other transactions already had taken place without guns as payment.
Likewise, there is no record support for the government's new theory of guilt that appellant "wanted the guns to use as tools of [his] drug business [at a later time]. (Government's Brief at 21). The government proceeded against appellant on the theory that he "used" the guns when he received them during and in relation to the May 10, 1991, drug trafficking offense. See Sealed Appendix at 11. While this Court may affirm on grounds other than those relied on by the district court (Government's Brief at 21 n.10), the government cannot propose entirely new theories of guilt for the first time on appeal.
CONCLUSIONThe district court's denial of appellant's motion to vacate, set aside, or correct sentence was erroneous and should be reversed.
I HEREBY CERTIFY that two copies of the foregoing Reply Brief for Appellant have been delivered by hand to the United States Attorney's Office, John R. Fisher, Esq., Appellate Division, 555 Fourth Street, N.W., Washington, D.C. 20001, this 19th day of December, 2000.
1. Contrary to the governments assertion (Government's Brief at 20 n.9), appellant also could prevail under a plain error standard. The plain language of the statute compels the conclusion that one must employ an object to "use" the object. That definition of "use" is "obvious" here, Bailey, 516 U.S. at 143, 144, as it was in Bailey.


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940.20 Annotation A prisoner is “confined to a state prison" under sub. (1) when kept under guard at a hospital for treatment. State v. Cummings, 153 Wis. 2d 603, 451 N.W.2d 463 (Ct. App. 1989).
940.20 Annotation A defendant's commitment to a mental institution upon a finding of not guilty by reason of mental disease or defect rendered him a “prisoner" under sub. (1). State v. Skamfer, 176 Wis. 2d 304, N.W.2d (Ct. App. 1993).
940.20 Annotation There is no requirement under sub. (2) that the officer/victim be acting lawfully when he or she is hit by a defendant. When an officer was assaulted when doing something within the scope of what the officer was employed to do, the lawfulness of the officer's presence in the house where the defendant hit him was not material to a violation of sub. (2). State v. Haywood, 2009 WI App 178, 322 Wis. 2d 691, 777 N.W.2d 921, 09-0030.
940.201 940.201 Battery or threat to witnesses.
940.201(1)(a) (a) “Family member" means a spouse, child, stepchild, foster child, parent, sibling, or grandchild.
940.201(1)(b) (b) “Witness" has the meaning given in s. 940.41 (3).
940.201(2)(a) (a) Intentionally causes bodily harm or threatens to cause bodily harm to a person who he or she knows or has reason to know is or was a witness by reason of the person having attended or testified as a witness and without the consent of the person harmed or threatened.
940.201(2)(b) (b) Intentionally causes bodily harm or threatens to cause bodily harm to a person who he or she knows or has reason to know is a family member of a witness or a person sharing a common domicile with a witness by reason of the witness having attended or testified as a witness and without the consent of the person harmed or threatened.
940.201 History History: 1997 a. 143; 2001 a. 109; 2009 a. 28.
940.201 Annotation Battery to a prospective witness is prohibited by s. 940.206 [now s. 940.201]. McLeod v. State, 85 Wis. 2d 787, 271 N.W.2d 157 (Ct. App. 1978).
940.203 940.203 Battery or threat to an officer of the court or law enforcement officer.
940.203(1)(ac) (ac) “Attorney” means a legal professional practicing law, as defined in SCR 23.01.
940.203(1)(am) (am) “Family member" means a parent, spouse, sibling, child, stepchild, or foster child.
940.203(1)(b) (b) “Judge" means a person who currently is or who formerly was a supreme court justice, court of appeals judge, circuit court judge, municipal judge, tribal judge, temporary or permanent reserve judge, or circuit, supplemental, or municipal court commissioner.
940.203(1)(c) (c) “Law enforcement officer" means any person who currently is or was employed by the state, by any political subdivision, or as a tribal law enforcement officer for the purpose of detecting and preventing crime and enforcing laws or ordinances and who is authorized to make arrests for violations of the laws or ordinances the person is employed to enforce, whether that enforcement authority extends to all laws or ordinances or is limited to specific laws or ordinances.
940.203(1)(d)1. 1. A district attorney, a deputy district attorney, an assistant district attorney, or a special prosecutor appointed under s. 978.045 or 978.05 (8) (b).
940.203(1)(d)2. 2. The attorney general, a deputy attorney general, or an assistant attorney general.
940.203(1)(d)3. 3. A tribal prosecutor.
940.203(2)(a) (a) At the time of the act or threat, the actor knows or should have known that the victim is a judge, prosecutor, or law enforcement officer or a member of the judge's, prosecutor's, or law enforcement officer's family.
940.203(2)(b) (b) The act or threat is in response to any action taken by a judge, prosecutor, or law enforcement officer in an official capacity.
940.203(2)(c) (c) There is no consent by the person harmed or threatened.
940.203(3)(a) (a) At the time of the act or threat, the actor knows or should have known that the victim is a current or former guardian ad litem, corporation counsel, or attorney, or a member of the current or former guardian ad litem's, corporation counsel's, or attorney's family.
940.203(3)(b) (b) The act or threat is in response to an action taken by the current or former guardian ad litem, corporation counsel, or attorney in his or her official capacity in a proceeding under ch. 48, 51, 54, 55, 767, 813, or 938.
940.203(3)(c) (c) There is no consent by the person harmed or threatened.
940.203 History History: 1993 a. 50, 446; 2001 a. 61, 109; 2009 a. 28; 2015 a. 78; 2017 a. 272, 352.
940.203 Annotation Only a “true threat" is punishable under this section. A true threat is a statement that a speaker would reasonably foresee that a listener would reasonably interpret as a serious expression of a purpose to inflict harm, as distinguished from hyperbole, jest, innocuous talk, expressions of political views, or other similarly protected speech. It is not necessary that the speaker have the ability to carry out the threat. Jury instructions must contain a clear definition of a true threat. State v. Perkins, 2001 WI 46, 243 Wis. 2d 141, 626 N.W.2d 762, 99-1924.
940.205 940.205 Battery or threat to department of revenue employee.
940.205(1)(1) In this section, “family member" means a parent, spouse, sibling, child, stepchild, or foster child.
940.205(2)(a) (a) At the time of the act or threat, the actor knows or should have known that the victim is a department of revenue official, employee or agent or a member of his or her family.
940.205(2)(b) (b) The official, employee or agent is acting in an official capacity at the time of the act or threat or the act or threat is in response to any action taken in an official capacity.
940.205(2)(c) (c) There is no consent by the person harmed or threatened.
940.205 History History: 1985 a. 29; 1993 a. 446; 2001 a. 109; 2009 a. 28.
940.207 940.207 Battery or threat to department of safety and professional services or department of workforce development employee.
940.207(1)(1) In this section, “family member" means a parent, spouse, sibling, child, stepchild, or foster child.
940.207(2)(a) (a) At the time of the act or threat, the actor knows or should have known that the victim is a department of safety and professional services or department of workforce development official, employee or agent or a member of his or her family.
940.207(2)(b) (b) The official, employee or agent is acting in an official capacity at the time of the act or threat or the act or threat is in response to any action taken in an official capacity.
940.207(2)(c) (c) There is no consent by the person harmed or threatened.
940.207 History History: 1993 a. 86, 446; 1995 a. 27 ss. 7227 to 7229, 9116 (5), 9130 (4); 1997 a. 3; 2001 a. 109; 2009 a. 28; 2011 a. 32.
940.208(1) (1) At the time of the act, the actor knows or should know that the victim is an employee of a county, city, village, or town.
940.208(2) (2) The victim is enforcing, or conducting an inspection for the purpose of enforcing, a state, county, city, village, or town zoning ordinance, building code, or other construction law, rule, standard, or plan at the time of the act or the act is in response to any such enforcement or inspection activity.
940.208(2p) (2p) The enforcement or inspection complies with any law, ordinance, or rule, including any applicable notice requirement.
940.208(3) (3) There is no consent by the victim.
940.208 History History: 2007 a. 193.
940.21 940.21 Mayhem. Whoever, with intent to disable or disfigure another, cuts or mutilates the tongue, eye, ear, nose, lip, limb or other bodily member of another is guilty of a Class C felony.
940.21 History History: 1977 c. 173; 2001 a. 109.
940.21 Annotation The forehead qualifies as an “other bodily member" under s. 940.21 because “other bodily member" encompasses all bodily parts. State v. Quintana, 2008 WI 33, 308 Wis. 2d 615, 748 N.W.2d 447, 06-0499.
940.21 Annotation Failure to instruct a jury that great bodily harm is an essential element of mayhem was reversible error. Cole v. Young, 817 F. 2d 412 (1987).
940.22 940.22 Sexual exploitation by therapist; duty to report.
940.22(1)(a) (a) “Department" means the department of safety and professional services.
940.22(1)(b) (b) “Physician" has the meaning designated in s. 448.01 (5).
940.22(1)(c) (c) “Psychologist" means a person who practices psychology, as described in s. 455.01 (5).
940.22(1)(d) (d) “Psychotherapy" has the meaning designated in s. 455.01 (6).
940.22(1)(e) (e) “Record" means any document relating to the investigation, assessment and disposition of a report under this section.
940.22(1)(f) (f) “Reporter" means a therapist who reports suspected sexual contact between his or her patient or client and another therapist.
940.22(1)(g) (g) “Sexual contact" has the meaning designated in s. 940.225 (5) (b).
940.22(1)(h) (h) “Subject" means the therapist named in a report or record as being suspected of having sexual contact with a patient or client or who has been determined to have engaged in sexual contact with a patient or client.
940.22(1)(i) (i) “Therapist" means a physician, psychologist, social worker, marriage and family therapist, professional counselor, nurse, chemical dependency counselor, member of the clergy or other person, whether or not licensed or certified by the state, who performs or purports to perform psychotherapy.
940.22(2) (2) Sexual contact prohibited. Any person who is or who holds himself or herself out to be a therapist and who intentionally has sexual contact with a patient or client during any ongoing therapist-patient or therapist-client relationship, regardless of whether it occurs during any treatment, consultation, interview or examination, is guilty of a Class F felony. Consent is not an issue in an action under this subsection.
940.22(3) (3) Reports of sexual contact.
940.22(3)(a) (a) If a therapist has reasonable cause to suspect that a patient or client he or she has seen in the course of professional duties is a victim of sexual contact by another therapist or a person who holds himself or herself out to be a therapist in violation of sub. (2), as soon thereafter as practicable the therapist shall ask the patient or client if he or she wants the therapist to make a report under this subsection. The therapist shall explain that the report need not identify the patient or client as the victim. If the patient or client wants the therapist to make the report, the patient or client shall provide the therapist with a written consent to the report and shall specify whether the patient's or client's identity will be included in the report.
940.22(3)(b)1. 1. The department, if the reporter believes the subject of the report is licensed by the state. The department shall promptly communicate the information to the appropriate examining board or affiliated credentialing board.
940.22(3)(b)2. 2. The district attorney for the county in which the sexual contact is likely, in the opinion of the reporter, to have occurred, if subd. 1. is not applicable.
940.22(3)(c) (c) A report under this subsection shall contain only information that is necessary to identify the reporter and subject and to express the suspicion that sexual contact has occurred in violation of sub. (2). The report shall not contain information as to the identity of the alleged victim of sexual contact unless the patient or client requests under par. (a) that this information be included.
940.22(3)(d) (d) Whoever intentionally violates this subsection by failing to report as required under pars. (a) to (c) is guilty of a Class A misdemeanor.
940.22(4) (4) Confidentiality of reports and records.
940.22(4)(a)(a) All reports and records made from reports under sub. (3) and maintained by the department, examining boards, affiliated credentialing boards, district attorneys and other persons, officials and institutions shall be confidential and are exempt from disclosure under s. 19.35 (1). Information regarding the identity of a victim or alleged victim of sexual contact by a therapist shall not be disclosed by a reporter or by persons who have received or have access to a report or record unless disclosure is consented to in writing by the victim or alleged victim. The report of information under sub. (3) and the disclosure of a report or record under this subsection does not violate any person's responsibility for maintaining the confidentiality of patient health care records, as defined in s. 146.81 (4) and as required under s. 146.82. Reports and records may be disclosed only to appropriate staff of a district attorney or a law enforcement agency within this state for purposes of investigation or prosecution.
940.22(4)(b)1.1. The department, a district attorney, an examining board or an affiliated credentialing board within this state may exchange information from a report or record on the same subject.
940.22(4)(b)2. 2. If the department receives 2 or more reports under sub. (3) regarding the same subject, the department shall communicate information from the reports to the appropriate district attorneys and may inform the applicable reporters that another report has been received regarding the same subject.
940.22(4)(b)3. 3. If a district attorney receives 2 or more reports under sub. (3) regarding the same subject, the district attorney may inform the applicable reporters that another report has been received regarding the same subject.
940.22(4)(b)4. 4. After reporters receive the information under subd. 2. or 3., they may inform the applicable patients or clients that another report was received regarding the same subject.

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Business Torts Category Archives — Pleasanton Business & Commercial Law Blog Published by California Business and Commercial Attorneys — Law Offices of James G. Schwartz, P.C.
Social media has provided near-countless ways for people to communicate with one another. The “marketplaces of ideas” that social media companies provide, however, require constant moderation in order to enforce rules against inappropriate and illegal content. Facebook, which is based in Northern California, has been the world’s largest social media service for over a decade, and now has more than two billion active monthly users. The company employs content moderators, through a staffing agency, to review posts by Facebook users and remove those that violate the service’s rules. A former content moderator has filed a putative class action alleging that the company has negligently failed to maintain a safe work environment for its content moderators, and that this has caused her to “suffer from significant psychological trauma and post-traumatic stress disorder.” Scola v. Facebook, Inc. et al, No. 18CIV05135, complaint at 2 (Cal. Super. Ct., San Mateo Cty., Sep. 21, 2018). The lawsuit also asserts several causes of action under the California Unfair Competition Law (CUCL). If you have a question about an issue you’re experiencing at work, contact a California business lawyer.
The Scola lawsuit is primarily based on the common-law theory of negligence. In order to prevail on a negligence claim in a court of law, a plaintiff must prove four elements by a preponderance of evidence: (1) the defendant owed a duty of care to the plaintiff or the general public; (2) the defendant breached this duty of care; (3) this breach was the proximate cause of the plaintiff’s injuries; and (4) the plaintiff has suffered a measurable loss because of these injuries.
The CUCL defines “unfair competition,” in part, as “any unlawful…business act or practice.” Cal. Bus. & Prof. Code § 17200. The plaintiff in Scola cites various provisions of the California Labor Code, and alleges that violations by the defendants constitute “unfair competition.” State law generally requires employers to “furnish employment and a place of employment that is safe and healthful for the employees therein.” Cal. Lab. Code § 6400(a). Employers must take various affirmative steps to safeguard the workplace and their employees, including the use of “an effective injury prevention program.” Id. at § 6401.7(a).
Three plaintiffs filed a putative class action against a retail clothing company, alleging that it induced them to enter store locations with misleading advertisements of a storewide sale. The defendant sought summary judgment, partly on the ground that the plaintiffs lacked standing to sue because they had not established actionable economic injuries. The trial court ruled in the defendant’s favor. The appellate court reversed this ruling, finding that the plaintiffs had demonstrated a triable issue of fact as to whether they suffered injuries-in-fact. SV v. Banana Republic, LLC, No. B270796, slip op. (Cal. App. 2nd, Dec. 15, 2016).
The lawsuit asserts causes of action under three California statutes. The Unfair Competition Law (UCL) prohibits “unfair, deceptive, untrue or misleading advertising.” Cal. Bus. & Prof. Code § 17200. The False Advertising Law (FAL) broadly prohibits the advertising of goods or services using “any statement…which is untrue or misleading, and which is known, or which…should be known, to be untrue or misleading.” Cal. Bus. & Prof. Code § 17500. The Consumers Legal Remedies Act (CLRA) prohibits “unfair or deceptive acts or practices” connected with the sale of goods or services. Cal. Civ. Code § 1770(a). The plaintiffs in SV alleged three CLRA violations involving false advertising of goods, false or misleading statements regarding “price reductions,” and misrepresenting the nature of a transaction. Id. at §§ 1770(a)(9), (13), (14).
In order to establish standing under any of these statutes, a plaintiff must demonstrate that they have “suffered injury in fact and…lost money or property” because of the defendant’s unlawful act. SV, slip op. at 10, quoting Kwikset Corp. v. Superior Court, 51 Cal.4th 310, 321 (2011), Cal. Bus. & Prof. Code § 17204. With regard to the amount of damages a plaintiff must show, the court notes that an “injury in fact is not a substantial or insurmountable hurdle.” SV at 10, Kwikset at 324. All three statutes allow restitution and injunctive relief. The UCL and the FAL limit any other kind of damages, but the CLRA expressly includes compensatory and punitive damages as available remedies.


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Ronkowski own 120 acres of undeveloped land in Bayfield County, Wisconsin. Since acquiring the property in 1972, Ronkowski has accessed it via an unpaved road that crosses over neighboring land, including land owned by the U.S. Forest Service. Ronkowski brought suit under the Quiet Title Act seeking recognition of an easement to access their property by way of the unpaved road. The Seventh Circuit affirmed Ronkowski had not established entitlement to an easement. Ronkowski did not make the required showing for an easement by necessity or an easement by implication because the existing forest service road provided them an alternate route by which to reach their property. Ronkowski could not demonstrate that the easement was necessary to access the property; even if traveling by way of forest road would be “inconvenient, difficult or require a high clearance vehicle,” there was no evidence that it is impossible.
In the United States Court of Appeals For the Seventh Circuit ____________________ No. 18 2269 EDWARD E. RONKOWSKI, JR. and JOANN RONKOWSKI, Plaintiffs Appellants, v. UNITED STATES OF AMERICA, Defendant Appellee. ____________________ Appeal from the United States District Court for the Western District of Wisconsin. No. 3:17 cv 226 — Barbara B. Crabb, Judge. ____________________ ARGUED DECEMBER 5, 2018 — DECIDED DECEMBER 28, 2018 ____________________ Before FLAUM, ROVNER, and SCUDDER, Circuit Judges. SCUDDER, Circuit Judge. Edward and JoAnn Ronkowski own 120 acres of undeveloped land in Bayfield County, Wisconsin. Since the Ronkowskis acquired the property in 1972, they have accessed it via an unpaved road that crosses over neighboring land, including land owned by the United States Forest Service. The Ronkowskis brought suit against the United States under the Quiet Title Act seeking recognition of an easement to access their property by way 2 No. 18 2269 of the unpaved road. The district court held that the Ronkowskis had not established entitlement to an easement. We a rm. I The only public road that reaches the Ronkowski property is a forest service road known as FR822A. This unpaved road connects the Ronkowski property to another public road, Oswald Road. The easement the Ronkowskis seek allows a more direct route to their property. It connects their property to a di erent public road, Blue Moon Road, and shortens the trip to the Ronkowski property by about two miles. The proposed easement is comprised of three segments: a segment of FR822A that connects to the Ronkowski property; a middle segment that crosses over United States Forest Service land; and a segment that passes over the land of a private landowner, Eric Allen, and reaches Blue Moon Road. The Ronkowskis have reached their property by driving this route since 1972. And Edward Ronkowski has per formed necessary routine maintenance on the proposed easement so that it continues to remain accessible for motor vehicles. This has included removing downed trees, filling ruts and potholes, cutting saplings and brush along the side of the roadway, and even bulldozing the length of the road way to assist with logging operations taking place on the Ronkowskis’ property. The United States, on the other hand, has not devoted resources to maintaining FR822A or the segment of the proposed easement that crosses over its property. No. 18 2269 3 In 2008 Edward Ronkowski submitted an application seeking the Forest Service’s acknowledgment of the easement. In 2016, after some back and forth between the parties, the Forest Service informed Ronkowski that he had not substantiated his claim for an easement by necessity or an easement by implication, and accordingly, any continued use of the easement would violate federal law. In denying the requested easement, however, the Forest Service stated that it would consider granting a special use permit for the Ronkowskis to continue to use the portion of the road crossing over the Forest Service’s land. The Ronkowskis never applied for the permit. Instead, they filed this lawsuit, seeking recognition of their entitlement to an easement for vehicular access to their property. The district court granted summary judgment in favor of the United States, holding that the Ronkowskis were not en titled to an easement. It concluded that the Ronkowskis had not made the required showing for an easement by necessity or an easement by implication because the existing forest service road, FR822A, provided them an alternate route by which to reach their property. The court therefore deter mined that the Ronkowskis could not demonstrate that the easement was necessary for them to access their property. In so concluding, the court emphasized that even if traveling by way of FR822A would be “inconvenient, di cult or require a high clearance vehicle, plainti s have submitted no evi dence that it is impossible.” On appeal, the Ronkowskis renew their contention that they are entitled to both an easement by necessity and an easement by implication. 4 No. 18 2269 II We first address the scope of the easement the Ronkowskis seek. They assert that they are entitled to recognition of an easement not only with respect to the portion of the proposed easement that passes over the land of the United States but also with respect to the segment of FR822A leading to their property as well as the segment crossing over Eric Allen’s property. They argue that this court should address their entitlement to all three segments of the proposed easement. We disagree and decline the invitation. The first segment of the proposed easement—the portion of FR822A leading to the Ronkowski property—is a public road. We know of no authority indicating that a party needs an easement to access a public road. The third segment—the portion of the road crossing over Allen’s property—is owned by an individual who is not a party to the case and, in any event, who has already granted the Ronkowskis an easement over his property. Allen would be a necessary party to any claim for an easement burdening his property. See Richards v. Land Star Grp., Inc., 593 N.W.2d 103, 112 (Wis. Ct. App. 1999). So we address only the portion of the proposed ease ment crossing over the land of the United States. An easement is an interest that encumbers the land of another. See AKG Real Estate, LLC v. Kosterman, 717 N.W.2d 835, 838 (Wis. 2006). Under Wisconsin law, an easement by necessity arises “where an owner severs a landlocked portion of his [or her] property by conveying such parcel to another.” Schwab v. Timmons, 589 N.W.2d 1, 7 (Wis. 1999). A property owner seeking an easement by necessity must demonstrate the following: first, there was common No. 18 2269 5 ownership of the servient and dominant estates at the time of the severance that created the landlocked condition, and second, the landlocked parcel had no access to a public roadway after it was severed and the lack of access continues. See McCormick v. Schubring, 672 N.W.2d 63, 66–67 (Wis. 2003). An easement by implication, while similar, is legally dis tinct from an easement by necessity. See Schwab, 589 N.W.2d at 6. An easement by implication arises when there has been a separation of land from a larger parcel and a use before separation took place which continued “so long and was so obvious or manifest as to show that it was meant to be per manent.” Id. Further, the easement by implication must be necessary to the beneficial enjoyment of the land and the need for the easement “so clear and absolute that without the easement the grantee cannot enjoy the use of the proper ty granted to him for the purpose to which similar property is customarily devoted.” Id. Although easements by necessity and by implication are distinct, the same facts defeat the Ronkowskis’ entitlement to an easement under either approach. The Ronkowskis have an ability to reach and enjoy the property by traveling by FR822A, the existing forest service road. They are thus una ble to demonstrate, as required for an easement by necessity, that they “cannot access a public roadway” from their prop erty. Id. at 7. For the same reason, the Ronkowskis cannot show, as required for an easement by implication, that the need for the easement is “so clear and absolute” that, with out it, they would be unable to enjoy the use of their proper ty. Id. at 6. 6 No. 18 2269 In the district court, the Forest Service submitted video evidence of a forest ranger traveling the length of FR822A from Oswald Road to reach the Ronkowski property. The video demonstrates that FR822A is passable, even if not an ideal route. For their part, the Ronkowskis point to evidence demonstrating that FR822A becomes di cult to traverse following rain, sometimes necessitating the use of a high clearance or four wheel drive vehicle. They further point to evidence showing that FR822A is narrow, has deep ruts, and is overgrown in places with vegetation that hits the windshields and the sides of vehicles using the road. They also rightly observe that the video of the forest ranger shows him traveling on FR822A on a clear day when the roads were dry and in a high clearance vehicle. These observations only go so far, though, for an easement—whether by necessity or by implication—does not arise merely because it is the best or most convenient way of reaching the property. In light of the evidence brought forward by the Forest Service, the Ronkowskis have not shown an inability to traverse FR822A. Wisconsin law is clear that the Ronkowskis bear this ex act burden. For an easement by necessity, a property owner “is not landlocked when he or she has di culty getting from his or her land to a public road as long as he or she can get from his or her land to a public road.” Schwab, 589 N.W.2d at 8. In Schwab, the Wisconsin Supreme Court noted that the parcel at issue was surrounded by water on one side and a blu on the other but nonetheless declined to find an ease ment by necessity. See id. at 7. The court explained and em phasized that “it may be more convenient for the petitioners to seek an extension of the private road to their parcels ra ther than travel across the property above the blu and nav No. 18 2269 7 igate the blu , but that in itself does not create the right to an easement by necessity.” Id. at 8. So, too, here. Some di culty in traversing FR822A does not mean that the Ronkowskis have demonstrated the need for an easement by necessity. And this same fact prevents the Ronkowskis from estab lishing their entitlement to an easement by implication, which imposes an even higher burden on the Ronkowskis: a “clear and absolute” necessity must exist for the easement to arise. Id. at 6. The existence of a passable, alternative route allowing them to enjoy their property forecloses the ability of the Ronkowskis to satisfy the necessity element of an easement by implication. Because the Ronkowskis have not demonstrated the easement is necessary—a required showing both for an easement by necessity and an easement by implication—we need not address the remaining elements of either type of easement. We owe a final observation in response to the Forest Service’s assertion that the Ronkowskis could apply for a special use permit to traverse their preferred route. The record shows—and the Forest Service’s counsel confirmed at oral argument—that such a permit would likely be available to the Ronkowskis at a reasonable sum. The Ronkowskis have never attempted to apply for the permit and do not argue that their application would be met by an unfair process or undue administrative burden. We recognize that a revocable permit is not the same as a permanent right of way. But as a practical matter, we find it significant that the route the Ronkowskis prefer is likely available to them if they simply apply for a permit. See House v. Pasko, 789 N.W.2d 754 (Wis. Ct. App. 2010) (noting that “the clear and 8 No. 18 2269 absolute necessity for an easement by implication does not exist where an alternative means to enjoy the land may be acquired for a reasonable sum”). For these reasons, we AFFIRM.
Landowners failed to demonstrate necessity for an easement across Forest Service land.

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On Tuesday, March 14, 2017, the Colorado State Judicial Branch announced the selection of three finalists to fill a vacancy on the Arapahoe County Court. The vacancy will be created by the retirement of the Hon. Robert C. Tobias, effective May 31, 2017.
The three finalists are Cori Alcock-Christofferson of Centennial, John Scipione of Highlands Ranch, and Don Toussaint of Aurora. Cori Alcock-Christofferson is at the District Attorney’s Office in the 18th Judicial District. John Scipione is a District Court Magistrate in the 18th Judicial District. Don Toussaint is at the Aurora City Attorney’s Office.
Under the Colorado Constitution, the governor has 15 days in which to appoint one of the nominees to the Arapahoe County Court. Comments regarding any of the nominees may be submitted to the governor at gov_judicialappointments@state.co.us. For more information about the nominees, click here.
The Colorado Court of Appeals issued its opinion in City of Lakewood v. Safety National Casualty Corp. on Thursday, March 9, 2017.
42 U.S.C. § 1983—Indemnification—Defense Costs—Insurance—Employer Liability Law.
A City of Lakewood (City) police officer was killed by friendly fire, and his widow filed a lawsuit under 42 U.S.C. § 1983, alleging that the City and various fellow officers had violated the deceased officer’s rights under the U.S. Constitution. The City sought indemnification for its own defense costs and those of the officers named in the lawsuit, which the City has an independent statutory duty to cover. The insurance company, Safety National Casualty Corporation, denied coverage. The district court concluded that a § 1983 claim did not arise under an employer liability law of any state and granted summary judgment for the insurance company.
On appeal, the City contended that the district court erred in granting summary judgment to the insurance company because the policy unambiguously covers all defense costs incurred by the City in connection with the § 1983 lawsuit. Specifically, the City argued that the § 1983 municipal liability claim must be covered by the employers’ liability portion of the policy because it is a claim based on work-related injuries that falls outside the ambit of the workers’ compensation laws. However, this overstates the scope of the coverage under the policy. By the policy’s plain terms, the common law claims must arise under the laws of Colorado or “other State(s).” Section 1983 is not a law of Colorado or any other state. Therefore, the City’s defense costs, which were sustained because of liability imposed as a result of the widow’s § 1983 claim, did not arise from a state workers’ compensation or employers’ liability law and were not covered by the policy.
Next, the City contended that it was entitled to reimbursement for amounts it paid to cover the fellow officers’ defense costs. The policy’s definition makes clear that the term “Employee” refers to the injured employee, not to an employee potentially responsible for the injury. “Loss” means payments by the City to the injured employee and the employee’s dependents. Therefore, the City’s indemnification payments to the officers named in the lawsuit do not qualify as losses under the policy and the City is not entitled to reimbursement from the insurance company.
The Colorado Court of Appeals issued its opinion in O’Neil v. Conejos County Board of Commissioners on Thursday, March 9, 2017.
Real Property—Residential—Commercial—Ad Valorem Taxes—Burden of Proof.
James and Mary Ellen O’Neil purchased the subject property and built a log house on it for their use as a vacation home and as an inheritance for their sons. The house was initially classified for tax purposes as residential. After the O’Neils listed the property as available for short-term, overnight rental, the Conejos County Assessor (Assessor) reclassified the property, for ad valorem tax purposes, from residential to commercial. The O’Neils filed a petition for abatement with the Conejos County Board of Commissioners (County), which was denied, and then appealed to the Board of Assessment Appeals (Board), which overturned the Assessor’s action and returned the property’s classification to residential for the relevant years.
On appeal, the County contended that the Board improperly classified the O’Neils’ property as residential. The County asserted as a procedural error that that the Board failed to apply the presumption in favor of the Assessor’s property classification. The Board’s order demonstrated that it implicitly applied the presumption in favor of the County, and the O’Neils met their burden of proof to overcome that presumption. On the merits, the Board determined that the proper classification of the property was “residential” because its “predominant and actual use was as a second home.” The Board’s determination had a reasonable basis in law and was supported by substantial evidence in the record.
On Tuesday, March 14, 2017, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.


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Good practices for addressing terrorism must be built on a functional criminal justice system that is capable of handling ordinary criminal offenses while protecting the human rights of the accused.
Protect Victims, Witnesses, Informants, Undercover Agents, Juries, Investigators, Prosecutors, Defense Counsel, and Judges in Counterterrorism Cases.
The rights of victims should be protected. This includes the right to protection and appropriate assistance and support during criminal proceedings.5 In enacting and implementing such measures, States will be ensuring that prosecutors and courts treat victims fairly in the criminal justice process. In addition, States should consider measures necessary to ensure protection of counsel, especially where they are representing informants, while respecting their ability to provide vigorous representation of their clients.
3. Protecting witnesses from intimidation and retaliation is an important component of multiple United Nations conventions. “Each State Party shall take appropriate measures within its means to provide effective protection from potential retaliation or intimidation for witnesses in criminal proceedings.” United Nations Convention against Transnational Organized Crime [hereinafter UNTOC], art. 24.1; accord UNCAC, art. 32.1. Those measures include physical protection of witnesses, relocation, not disclosing their identity and whereabouts, and evidentiary rules that allow them to testify without being in person. UNTOC, art. 24.2; accord UNCAC, art. 32.2. These conventions have also called for criminalizing the “use of physical force, threats or intimidation… to interfere in the giving of testimony or the production of evidence…. [or] to interfere with the exercise of official duties by a justice or law enforcement official.” UNTOC, art. 23; accord UNCAC, art. 25.
4. Technical Guide for the Implementation of Resolution 1373 at 28 (2001).
5. These rights have been recognized in UN conventions that call for State Parties to “take appropriate measures within [their] means to provide assistance and protection to victims… in particular in cases of threat of retaliation or intimidation.” UNTOC, art. 25.1. These measures include “access to compensation and restitution,” and having their “views and concerns… presented and considered at appropriate stages of criminal proceedings.” UNTOC,art’s. 25.2 & 25.3; accord United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, art’s. 6.2 & 6.6, Dec. 15, 2000, 2237 U.N.T.S. 319, Annex II [hereinafter Trafficking in Persons Protocol]. The Trafficking in Persons Protocol also calls for “protect[ing] the privacy and identity of victims” through confidential legal proceedings, counseling on their legal rights, “[m]edical, psychological, and material assistance,” “employment, educational and training opportunities,” and “[a]ppropriate housing.” Art’s. 6.1 & 6.3. In addition, the UN Global Counter-Terrorism Strategy calls on all States “[t]o consider putting in place, on a voluntary basis, national systems of assistance that would promote the needs of victims of terrorism and their families and facilitate the normalization of their lives.” UN General Assembly Resolution 60/288 (Sept 2006), Plan of Action, Sec. 1, Para. 8 [hereinafter UN Strategy].
Encourage Cooperation and Coordination among Domestic Government Agencies that Have Responsibilities or Information Relevant to Counterterrorism.
Effective investigation of terrorist threats often involves the gathering and analysis of information collected by multiple agencies within a single government, such as intelligence, law enforcement, military, finance, and banking agencies, as well as provincial, state or local governments. It is often critical to connect disparate pieces of information drawn from different sources in order to identify and disrupt a terrorist plot and to prosecute terrorism cases. Thus the sharing of information aimed at preventing terrorist offenses among all agencies involved is an important means of preventing terrorist acts. States may wish to consider, where appropriate, promulgating measures and mechanisms establishing a legal framework aimed at enhancing inter-agency cooperation and information sharing, while maintaining necessary protections for personal data.6 In this context, law enforcement agents, prosecutors and other relevant officials should work together while respecting their competencies, as determined by the applicable legal framework, to enable an effective and integrated criminal justice system.
6. Domestic cooperation has already been stressed by the UNCAC, “Each State Party shall take such measures as may be necessary to encourage… cooperation between, on the one hand, its public authorities, as well as its public officials, and, on the other hand, its authorities responsible for investigating and prosecuting criminal offences.” Those measures may include providing information “on their own initiative,” or “upon request.” UNCAC art. 38.
Provide a Legal Framework and Practical Measures for Undercover Investigations of Terrorist Suspects or Organizations.
Where necessary and feasible, States should put in place adequate mechanisms and legislation for conducting investigations of terrorist activity without the knowledge of the suspected terrorists under investigation. Accordingly, States should enable, where appropriate, the use of special investigative techniques, such as undercover investigations, following established procedures, as provided for in relevant national laws or policies, that assure the accountability of law enforcement officials as well as the production of admissible evidence of terrorist activity and related criminal plans, preparations, actions, and involvement.7 It is important that procedures be in place to protect those involved in undercover operations from harm to the maximum extent possible, while ensuring their accountability. All such procedures should be consistent with relevant national laws and applicable international law. It is also important that their activities be closely supervised to ensure that they are targeting their operations based on evidence of terrorist activity, that they conduct the operations within appropriate human rights boundaries, and do not engage in entrapment.
7. United Nations conventions have called on State Parties “to allow for the appropriate use by its competent authorities of… special investigative techniques, such as… undercover operations,… and to allow for the admissibility in court of evidence derived therefrom.” UNCAC, art. 50.1; accord Organized Crime Convention, art. 20.1.
Provide a Legal Framework and Practical Measures for Electronic Surveillance in Counterterrorism Investigations.
The clandestine and complex nature of terrorism requires specialized investigative methods and techniques. Lawfully approved forms of electronic surveillance such as wiretapping, tracking devices, and the monitoring of Internet and other electronic communications have proven to be effective tools to combat terrorist activities. Evidence derived from electronic surveillance should, as provided for in relevant national laws, generally be obtained in a form that will be legally admissible in court, and the methods should be compliant with relevant human rights obligations.8 Regulating such surveillance can directly promote the right of persons not to be subjected to arbitrary or unlawful invasions of privacy.9 There should be an appropriate legal authorization by the competent authorities to initiate electronic surveillance against a terrorist suspect. Laws authorizing electronic surveillance also need to be flexible enough to account for rapid changes in communications technology, which terrorists may exploit, and should apply the legal principle of proportionality.
8. Various international conventions have provisions encouraging the use of electronic surveillance. “[E]ach State Party shall… take such measures as may be necessary, within its means, to allow for the appropriate use by its competent authorities of… special investigative techniques, such as electronic or other forms of surveillance,… and to allow for the admissibility in court of evidence derived therefrom.” UNCAC, art. 50.1; accord Organized Crime Convention, art. 20.1.
Adopt Incentives for Terrorist Suspects and Others to Cooperate in Counterterrorism Investigations and Prosecutions.
Without adequate incentives, those with knowledge of or involvement in terrorist activity may have little reason to cooperate with law enforcement authorities, especially given the fear of retribution by members of a terrorist organization. Accordingly, adequate incentive programs to encourage terrorist suspects and others to provide accurate and useful information to competent authorities about terrorist activities and plots should be adopted.10 Any such program should respect the principle that no one should be compelled to testify against himself or confess guilt. With respect to those involved in planning or undertaking terrorist activities, legal systems should have the flexibility to take into account cooperation with authorities, including testimony in other criminal proceedings, and early admissions of guilt to mitigate punishment.11 Formal cooperation agreements or “plea agreements” are one way but not the exclusive way to accomplish this objective, as are sentencing rules that address the impact of cooperation. Finally, care should be taken to ensure that incentives for cooperation do not lead individuals to provide false information or evidence to law enforcement authorities.
10. Various United Nations conventions call for State Parties to take “appropriate measures to encourage persons who participate or who have participated in the commission of an offense to supply information useful to competent authorities for investigative and evidentiary purposes.” UNTOC, art. 37.1, Oct. 31, 2003, 2349 U.N.T.S. 41 [hereinafter UNCAC]; accord UNTOC, art. 26.1, Nov. 15, 2000, 2225 U.N.T.S. 209 [hereinafter Organized Crime Convention].
11. United Nations conventions support mitigating punishment or granting immunity to those who cooperate with law enforcement. “Each State Party shall consider providing for the possibility, in appropriate cases, of mitigating punishment of an accused person who provides substantial cooperation in the investigation or prosecution of an offence,” and “shall consider providing for the possibility… of granting immunity.” UNCAC, 1, art’s. 37.2 & 37.3; accord UNTOC, art’s. 26.2 & 26.3; accord United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, art. 7.18, Dec. 20, 1988, 1582 U.N.T.S. 95 [hereinafter 1988 UN Drug Convention].
Because persons often provide this type of information to the government in confidence and in situations of risk to their personal safety, these measures help further the protection of the of the privacy interests of victims and informants from interference or attacks.13 Moreover, this approach protects national security.
12. Measures already exist at the international level to protect sensitive information that one State Party receives from another. “State Parties shall take appropriate measures consistent with their national law to protect the confidentiality of any information which they receive in confidence by virtue of the provisions of this convention from another State Party…. If States Parties provide information to international organizations in confidence, steps shall be taken to ensure that the confidentiality of such information is protected.” International Convention for the Suppression of Acts of Nuclear Terrorism, art. 7, April 13, 2005, 2445 U.N.T.S. 89 [hereinafter Nuclear Terrorism Convention].
13. Cf, ICCPR, art. 17.
15. ICCPR arts. 9 and 14.
16. The need for States to detain persons prior to trial is clearly recognized and authorized by the ICCPR, arts. 9, 10, and 14. The regulation of such pre-trial detention, absent a state of emergency, should be subject to judicial review, ICCPR, art. 9.3 (requiring persons arrested on criminal charges to be brought promptly before a judge or other judicial power) and art. 9.4 (providing for judicial review of the lawfulness of any form of arrest or detention). [Under article four of the ICCPR formal derogation of the judicial review provisions of article nine may be proclaimed during a public emergency that threatens the life of the nation, only to the extent strictly required by the exigencies, and provided they are not inconsistent with other international legal obligations and are not imposed in a discriminatory manner. .]ICCPR, art. 4.1.
Provide for the Professional Development of Investigators, Prosecutors, and Judges Who Handle Terrorism Cases.
A long-term commitment to developing and building a specialized cadre of permanent career investigators, prosecutors, and judges (where relevant) is needed to ensure effective prosecution. Career prosecution and investigative services should be equipped with the infrastructure, remuneration, and specialized training they need to perform critical counterterrorism functions within the criminal justice system. In particular, they should be able to handle the complex legal, forensic, technological, and financial aspects of counterterrorism investigations and prosecutions. A competent and impartial judiciary attuned to the complexity and importance of terrorism cases, including human rights aspects, is also critical to an effective criminal justice approach to counterterrorism within a rule of law framework. Training and resources necessary to handle these cases appropriately should be available to investigators, prosecutors, and judges.
Develop Practices and Procedures to Encourage International Cooperation in Counterterrorism Matters.
Extradition and mutual legal assistance treaties and associated domestic laws should be updated and modernized where needed. In addition, States could, where possible and appropriate, develop new tools to facilitate cooperation among judicial authorities in different countries.19 In this regard, States should comply with their international legal obligations with respect to the principle of non-refoulement and the prohibition against torture and cruel, inhuman, or degrading treatment. Training should be available to central authorities, judges, and prosecutors on the international requirements of all aspects of mutual legal assistance and judicial cooperation.
17. Many of the international conventions that are in force contain measures to increase the cooperation between countries. For instance, many contain provisions that limit acceptable reasons to deny an extradition request. UNCAC, art. 44; UNTOC, art. 16; 1988; UN Drug Convention, art. 6; International Convention for the Suppression of Terrorist Bombings, art’s. 9 & 11, Oct. 24, 1995, 2149 U.N.T.S. 256 [hereinafter Terrorist Bombings Convention]; International Convention against the taking of Hostages, art. 10, Dec. 17, 1979, 1316 U.N.T.S. 205 [hereinafter Hostages Convention];.Nuclear Terrorism Convention, art. 13. Other provisions state that “State Parties shall afford one another the widest measure of mutual legal assistance in investigations, prosecutions and judicial proceedings,” with specific provisions for a central authority to handle all requests. UNCAC, art. 46; accord Organized Crime Convention, art. 18; 1988 UN Drug Convention, art. 7.
18. See, e.g., U.N. Sec. Res. 1373 (September 2001), para. 3(g), Terrorist Bombings Convention, arts. 11 and 12.
19. For example, States may consider 1) concluding agreements or arrangements that provide for the use of special investigative techniques across national boundaries that allow for the admissibility of such evidence in their courts; b) the exchange of liaison magistrates and justice attaches, without prejudice to their national laws; and 3) whether joint investigative teams could, in a specific case and in accordance with their national laws, further the interests of international cooperation in counterterrorism. See, e.g., UNTOC, Art. 19.
20. Various conventions have been adopted that contain provisions which promote informal international cooperation. For example, the UNCAC provides that State Parties shall “take effective measures [t]o enhance and, where necessary, to establish channels of communication between their competent authorities, agencies and services in order to facilitate the secure and rapid exchange of information concerning all aspects of [criminal] offences.” UNCAC, art. 48; accord Organized Crime Convention, art. 27; 1988 UN Drug Convention, art. 9. Other provisions provide for sharing information to help prevent offenses, or sharing evidence after an offense has been committed. Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation, art. 18, Sep. 10, 2010 [hereinafter Beijing Convention] (“Any State Party having reason to believe that [an offense]… shall be committed shall, in accordance with its national law, furnish any relevant information in its possession to those States Parties.”); Terrorist Bombings Convention, art. 15 (“State Parties shall cooperate in the prevention of [criminal] offences…. [b]y exchanging accurate and verified information in accordance with their national law.”).
Develop and Use Forensic Evidence to Determine the Identities of those involved in Terrorist Acts.
The use of scientifically accepted, human rights-compliant, modern forensic sciences is an invaluable tool in terrorism investigations. These measures may include modern DNA analysis, automatic fingerprint analysis, ballistics, bomb residue analysis, and a host of other tools. It must be recognized, however, that forensic evidence may not always be present at crime scenes, and absent such evidence, the identity of a perpetrator may be discovered through other lawful means. In order to increase the possibility that useful evidence will be recovered, law enforcement and other authorities who first respond to a crime scene should do their utmost to maintain the integrity of the crime scene, so that a proper forensic examination may be conducted, and should consider issuing guidelines to further that objective. In specific cases international assistance may be helpful in securing the crime scene or in the collection, protection, and examination of forensic evidence. Finally, the availability of forensic tools also directly furthers the protection of human rights in that it increases the number of tools to discover the identities of terrorist suspects through non-coercive means.
Ensure that Convicted Terrorists Are Appropriately Punished and Develop Policies for Their Incarceration and Reintegration.
An effective system for incarcerating convicted terrorists is a critical part of an effective criminal justice response to terrorism. Such a system should ensure appropriate punishment so as to deter terrorist activity, prevent further radicalization of prisoners, prevent terrorist activities from being directed or supported from within the prison system, and provide for the deradicalization and reintegration of prisoners into society where possible and thereby reduce recidivism.
Convicted terrorists should be held securely for the duration of their incarceration, which should reflect the gravity and potential harm to society from their conduct, while treating them humanely and respecting their human rights.21 Experience has shown that some convicted terrorists continue to conduct terrorist activities during their incarceration. Governments should enact measures -- such as proportionate restrictions on communications by convicted terrorists -- to prevent such activities from occurring.
States are encouraged to share with each other relevant experiences and information about the incarceration and reintegration of terrorists. States may make use of the experiences and information from governments that have succeeded in rehabilitating persons convicted of committing terrorism offences and in getting them to renounce violence. For those prisoners who will be released into the community, measures should be undertaken to reintegrate them into society. Such measures could, where appropriate and consistent with the relevant national laws, include strict conditions of court-supervised release.
21. The principles and philosophy espoused in the United Nations Standard Minimum Rules for the Treatment of Prisoners, Economic and Social Council Resolutions 666 C (XXIV) and 2076 (LXII), (July 31, 1957 and May 13, 1977), provide a useful and flexible guide that countries should use when deciding what conditions of confinement are appropriate for prisoners. However, as noted in the Rules themselves. “it is evident that not all of the rules are capable of application in all places and at all times.” Id. at p. 1, Preliminary Observation 2. Thus some of the suggested rules may need to be modified in order to protect against those who seek to continue their terrorist acts from inside prison.
Criminalize Terrorism offenses as Outlined in the Applicable International Conventions and Protocols.
Although States may approach codification of terrorism offenses differently depending on their legal traditions, States should criminalize the offenses outlined in the relevant international counterterrorism legal instruments to which they are a party, or which are required by relevant UN Security Council resolutions, as part of a comprehensive legal framework to combat and prevent terrorism.22 Furthermore, States that are not a party to some or all of these international instruments should consider becoming a party.23 Adequate incorporation into national legislation of the international counterterrorism provisions and obligations constitutes a key element in a comprehensive and coherent counterterrorism legal framework that is sufficiently precise to give fair notice of conduct that is prohibited and guards against potential misuse of criminal laws.
22. Certain terrorism-related offenses are already covered by specific international conventions requiring State Parties to criminalize those actions. See e.g. Hostages Convention, Supra note 10, art. 1 (criminalizes “hostage-taking”); Terrorist Bombings Convention, art. 2 (makes it illegal to “deliver, place[ ], discharge[ ], or detonate[ ] an explosive or other illegal device”); Nuclear Terrorism Convention, art. 2 (makes it an offense to make, possess, or use radioactive material or a device, or to damage a nuclear facility).
23. See, UN Sec. Res. 1373 para. 3(d).
Criminalize Conspiracies, Solicitation and other Preparatory Acts of Terrorism.
Criminalizing preparatory acts, such as conspiracy, terrorist fundraising, terrorist recruitment, planning and training, particularly when a terrorist attack has not yet been carried out, is vital in an effective criminal justice preventive approach to counterterrorism. If terrorist violence is to be reduced and attacks are to be thwarted before they occur, authorities must be able to focus their attention on proactive intervention when terrorist suspects are at the planning and preparation stages. While countries differ on how exactly these offenses are defined (e.g., membership in a terrorist organization, directing the activity of terrorist organizations, solicitation, incitement or recruitment) criminalization of preparatory acts will greatly facilitate early intervention. The creation of conspiracy or criminal association offenses, which prohibit agreements to commit crimes associated with terrorism, is vital to facilitating this early intervention. For these offenses to be complete, terrorist attacks need not be attempted or accomplished but only agreed to or prepared for in some manner. In the criminalization and prosecution of these acts, countries should pay full respect to the rights of individuals to freedom of expression, freedom of religion or belief, and freedom of association.
Criminalize Attempts to Commit and Aiding and Abetting Terrorist Acts.
Likewise, countries should enact laws that criminalize attempts to commit, or aiding or abetting the commission of, terrorism offenses.24 Criminalizing attempts, even when the perpetrator does not ultimately succeed in committing the crime, is essential in a preventative criminal justice system.
24. International conventions commonly criminalize any attempt to commit the substantive offense covered by the convention. See UNCAC, art. 27.2; Terrorist Bombings Convention, art. 2.2; Hostages Convention, art. 1.2; Genocide Convention, art. 3(d); ICTY Statute, art. 4.3; ICTR Statute, art. 2.3. These same international conventions often criminalize participating in an offense as an accomplice. See UNCAC, art. 27.1; ; Terrorist Bombings Convention, art. 2.3; Hostages Convention, art. 1.2; Genocide Convention, art. 3(e) (makes punishable “complicity in genocide”); ICTY Statute, art. 4.3 (makes punishable “complicity in genocide”); ICTR Statute, art. 2.3 (makes punishable “complicity in genocide”).
Preventing terrorists and terrorist organizations from funding their activities is an essential component of any successful counterterrorism strategy and a binding requirement under several UN Security Council resolutions.25 Countries should enact laws that criminalize the financing of terrorism in accordance with the International Convention for the Suppression of the Financing of Terrorism, and are encouraged to implement the Financial Action Task Force (FATF) Recommendations on Criminalizing Terrorist Financing.26 Procedures and proper mechanisms allowing for the freezing, seizing, and confiscation of terrorist assets and funds used or allocated for the purpose of terrorist financing, should also be enacted in accordance with the relevant UN Security Council resolutions and subject to appropriate review.
25. See, e.g., U.N. Sec. Res. 1267 (1999); U.N. Sec. Res 1373 (2001).
26. In addition to the International Convention for the Suppression of the Financing of Terrorism, other international conventions also prohibit the activities of those who “knowingly finance” offenses set out in that particular convention. See Terrorist Bombings Convention, art. 15; accord Nuclear Terrorism Convention, art. 7.1.
It is vital for States to assist each other in developing the necessary capacity to confront terrorism through the criminal justice system. Accordingly states should in the first instance have a modern, fair and efficient criminal justice system that forms the basis for a robust criminal justice response to terrorism. Thus, capacity building is a core element in an effective counterterrorism program. This Working Group encourages all States and relevant multilateral bodies to participate in such efforts.
Capacity-building programs should be designed to ensure that law enforcement and criminal justice officials understand and implement the good practices discussed above that are consistent with their legal requirements and circumstances. Furthermore, counterterrorism enforcement should be conducted within a framework that respects human rights and promotes the rule of law and good governance.
States are encouraged to submit offers of assistance and requests for assistance to the GCTF Administrative Unit using the form in the attached addendum to improve cooperation in counterterrorism capacity building efforts in a way that is most consistent with the priorities and legal systems as well as the special circumstances of each state. The Working Group Co-Chairs will, in cooperation with the GCTF Administrative Unit, share requests for and offers of assistance with all Working Group members on a timely and regular basis.
This Working Group recognizes that there is no obligation on any state to provide or receive assistance. Such offers or requests should be based on the sovereign decision of each state based on its legal system, priorities, needs, and circumstances.
The Working Group encourages all states to consider using the Good Practices as a non-binding guide for implementing counterterrorism capacity-building assistance activities. States should keep in mind that the above Good Practices may be updated over time to take into account the experiences of states in using their criminal justices systems to counter and prevent terrorism.
As noted above, one of the fundamental obstacles to effective investigation and prosecution is often the lack of coordination, cooperation, and information sharing among public safety, law enforcement, intelligence, and prosecutorial agencies. Encouragement of institutional mechanisms, such as interagency task forces, to coordinate among various agencies of government is key to overcoming obstacles.
As noted above, to effectively use the criminal justice system to counter terrorism, countries should consider developing a professional cadre of practitioners in every component of the criminal justice system.28 Given the increasingly complex and highly specialized nature of terrorism investigations and prosecutions, States can benefit from ensuring that law enforcement officials, judges, and prosecutors are provided with specialized counterterrorism training and skills to develop and implement the above-mentioned tools effectively. Given the international nature of the terrorist threat, specialized expertise in international cooperation, including the development of effective central authorities, is also critical.
27. Some international conventions provide for specialized authorities to deal with a specific issue. The UNCAC, for example, says that each State Party shall “ensure the existence of a body or bodies or persons specialized in combating corruption through law enforcement. Such body or bodies or persons shall be granted the necessary independence… to be able to carry out their functions effectively and without any undue influence. Such persons or staff of such body or bodies should have the appropriate training and resources to carry out their tasks.” UNCAC, art. 36.
28. In the UN Global Counter-Terrorism Strategy, the General Assembly recognizes “that States may require assistance in developing and maintaining [an] effective and rule of law-based criminal justice system” and encourages “them to resort to the technical assistance delivered, inter alia, by the United Nations Office on Drugs and Crime.” UN Strategy, Plan of Action, Sec. 4, Para. 4. In addition, United Nations conventions have recognized the importance of specialized training across the entire spectrum of the criminal justice system. “Each State Party shall… initiate, develop, or improve specific training programs for its law enforcement personnel including prosecutors, investigating magistrates and customs personnel, and other personnel charged with the prevention, detection and control of the offences covered by this convention.” UNTOC, art. 29.

matches:
art. 24
art. 32
art. 24
art. 32
art. 23
art. 25
art. 25
art. 38
art. 50
art. 20
art. 50
art. 20
art. 37
art. 26
art. 7
art. 7
art. 17
art. 9
art. 9
art. 4
art. 44
art. 16
art. 6
art. 10
art. 13
art. 46
art. 18
art. 7
Art. 19
art. 48
art. 27
art. 9
art. 18
art. 15
art. 1
art. 2
art. 2
art. 27
art. 2
art. 1
art. 3
art. 4
art. 2
art. 27
art. 2
art. 1
art. 3
art. 4
art. 2
art. 15
art. 7
art. 36
art. 29


Two recent citizen petitions submitted to FDA – one from Gilead Sciences, Inc. (“Gilead”) under Docket No. FDA-2013-P-0058, and another from Ferring Pharmaceuticals, Inc. (“Ferring”) under Docket No. FDA-2013-P-0119 – take issue with FDA’s long-standing position that in order for a fixed-dose combination drug to be eligible for 5-year New Chemical Entity (“NCE”) exclusivity, each of the active moieties in the drug product must be new (i.e., not previously approved). Although there are myriad instances throughout Hatch-Waxman history in which FDA has applied this principle – either to grant or deny NCE exclusivity for a combination drug – the Gilead and Ferring petitions appear to be the first instances in which companies have publicly challenged FDA’s application of the FDC Act in this respect. Both petitions advance some rather interesting legal and policy arguments in favor of NCE exclusivity, and, provided FDA denies both petitions, arguments that may be raised again in litigation with FDA.
If an application submitted under [FDC Act § 505(b)] for a drug, no active ingredient (including any ester or salt of the active ingredient) of which has been approved in any other application under [FDC Act § 505(b)], is approved after the date of the enactment of this subsection, no application may be submitted under this subsection which refers to the drug for which the [FDC Act § 505(b)] application was submitted before the expiration of five years from the date of the approval of the application under [FDC Act § 505(b)], except that such an application may be submitted under this subsection after the expiration of four years from the date of the approval of the [FDC Act § 505(b)] application if it contains a [Paragraph IV certification].
If a drug product that contains a [NCE] was approved after September 24, 1984, in an application submitted under [FDC Act § 505(b)], no person may submit a 505(b)(2) application or [ANDA] under [FDC Act § 505(j)] for a drug product that contains the same active moiety as in the [NCE] for a period of 5 years from the date of approval of the first approved [NDA], except that the 505(b)(2) application or [ANDA] may be submitted after 4 years if it contains a [Paragraph IV] certification . . . .
product contains any previously approved active moiety (i.e., it is not compsed of all NCEs), then FDA has historically denied NCE exclusivity and granted 3-year exclusivity, provided the statutory requirements are met. This means that order counts, and that to obtain NCE exclusivity for a combination drug containing new and old actives, the NCE component must be approved first, followed by the combination drug. In that case, NCE exclusivity granted with respect to the single entity approval would apply to the combination drug under FDA’s so-called “umbrella policy.” See 54 Fed. Reg. 28,872, 28,897 (July 10, 1989) (“[W]hen exclusivity attaches to an active moiety or to an innovative change in an already approved drug, the submission or effective date of approval of ANDA’s and 505(b)(2) applications for a drug with that active moiety or innovative change will be delayed until the innovator’s exclusivity has expired, whether or not FDA has approved subsequent versions of the drugs entitled to exclusivity, and regardless of the specific listed drug product to which the ANDA or 505(b)(2) application refers.”).
the molecule or ion, excluding those appended portions of the molecule that cause the drug to be an ester, salt (including a salt with hydrogen or coordination bonds), or other noncovalent derivative (such as a complex, chelate, or clathrate) of the molecule, responsible for the physiological or pharmacological action of the drug substance.
As we previously discussed, FDA has articulated a structure-centric interpretation of “active moiety” (rather than an activity-based interpretation) under which a drug is classified as an NCE regardless of which portions of the active ingredient contribute to the overall therapeutic effect of the drug. This form over function approach means that relatively small changes to a molecule, such as deuterium analogues of various approved compounds (see here, here, and here), may qualify for NCE exclusivity, while more significant changes that improve the activity of a drug, but that do not change the molecule that is the active moiety, would not result in NCE exclusivity. Although FDA’s structure-centric interpretation of “active moiety” is not per se at issue in the Gilead and Ferring petitions, the form over function approach that that interpretation embodies is at issue.
Gilead’s petition concerns STRIBILD (elvitegravir, cobicistat, emtricitabine, tenofovir disoproxil fumarate) Tablets, which FDA approved on August 27, 2012 under NDA No. 203100 for the treatment of HIV. FDA’s Orange Book does not yet reflect an exclusivity determination by the Agency; however, the Gilead petition presumes that if the Agency follows past practice, then NCE exclusivity will be denied on the basis that two of the components in STRIBILD, namely emtricitabine and tenofovir disoproxil fumarate, were previously approved. The elvitegravir and cobicistat components are NCEs.
FDA’s historical interpretation is not binding. . . . [A] new interpretation of the exclusivity provisions applicable to new active moieties in [fixed-dose combinations] should be adopted and can immediately be put into practice. A new interpretation is fully justified under the statute; is consistent with the agency’s regulations; and is necessary to keep pace with advances in medical science.
And what is that new interpretation? Gilead says that the FDC Act is subject to multiple interpretations, but that “the best reading of the statute – and the one that best reflects the agency’s rulemaking choices – is that for a 505(b) application that contains a fixed dose combination of drugs, the exclusivity must be analyzed and granted as to each drug that is the subject of the application” (emphasis added). That is, NCE exclusivity should be evaluated on a drug component-by-drug component drug basis. Why? Because it naturally fits with FDA’s regulations and supports Congressional intent to reward the development of new active moieties, says Gilead.
FDA’s historical approach, writes Gilead, leads to illogical and arbitrary results, such as forcing sponsors to first obtain approval of the NCE (if that is even possible), followed by the combination drug. Moreover, “rigid application of FDA’s historical interpretation to [fixed dose combinations] also creates inconsistent exclusivity determinations with respect to cross-labeled drug combinations,” such as PREZISTA (darunavir ethanolate), which is an NCE that must be co-administered with ritonavir. In addition, Gilead points to recent legislation, such as the 2007 FDA Amendments Act, and administrative changes to the NDA review process that support a change in statutory interpretation.
(4) that FDA’s so-called “Animal Efficacy Rule,” 21 C.F.R. § 314.610 (drugs), § 601.91 (biologics), under which FDA can rely on evidence from animal studies to provide substantial evidence of effectiveness when it is unethical or unfeasible to conduct human efficacy studies to obtain approval of a countermeasure product, supports “the position that FDA takes public health objectives into consideration when interpreting statutory language.” Accordingly, says Ferring, because the company “was ethically barred from conducting a study of single ingredient sodium picosulfate without including the other ingredients magnesium oxide and anhydrous,” “FDA should treat Ferring’s situation similar to those cases where FDA approved a drug product and granted exclusivity based on animal studies.” In each of those cases, FDA presumably granted 3-year exclusivity on the basis of the human safety studies conducted by the NDA sponsor. See, e.g., FDA Exclusivity Summary for CYANOKIT (hydroxocobalamin for injection), NDA No. 022041 (here). Under the Animal Efficacy Rule, evaluation of the product for safety in humans is still required and cannot be addressed by animal studies alone.
It is unclear when FDA might respond to both the Gilead and Ferring petitions; however, FDA may be forced to make decisions if a company submits an ANDA in the near future, and before what would otherwise be the “NCE-1” date (i.e., four years after the NCE NDA approval).