et al., PETITIONERS v. LINDSAY EARLS et al.
The Student Activities Drug Testing Policy implemented by the Board of Education of Independent School District No. 92 of Pottawatomie County (School District) requires all students who participate in competitive extracurricular activities to submit to drug testing. Because this Policy reasonably serves the School Districts important interest in detecting and preventing drug use among its students, we hold that it is constitutional.
At the time of their suit, both respondents attended Tecumseh High School. Respondent Lindsay Earls was a member of the show choir, the marching band, the Academic Team, and the National Honor Society. Respondent Daniel James sought to participate in the Academic Team.1 Together with their parents, Earls and James brought a 42 U.S.C. § 1983 action against the School District, challenging the Policy both on its face and as applied to their participation in extracurricular activities.2 They alleged that the Policy violates the Fourth Amendment as incorporated by the Fourteenth Amendment and requested injunctive and declarative relief. They also argued that the School District failed to identify a special need for testing students who participate in extracurricular activities, and that the Drug Testing Policy neither addresses a proven problem nor promises to bring any benefit to students or the school. App. 9.
Applying the principles articulated in Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995), in which we upheld the suspicionless drug testing of school athletes, the United States District Court for the Western District of Oklahoma rejected respondents claim that the Policy was unconstitutional and granted summary judgment to the School District. The court noted that special needs exist in the public school context and that, although the School District did not show a drug problem of epidemic proportions, there was a history of drug abuse starting in 1970 that presented legitimate cause for concern. 115 F. Supp. 2d 1281, 1287 (2000). The District Court also held that the Policy was effective because [i]t can scarcely be disputed that the drug problem among the student body is effectively addressed by making sure that the large number of students participating in competitive, extracurricular activities do not use drugs. Id., at 1295.
The United States Court of Appeals for the Tenth Circuit reversed, holding that the Policy violated the Fourth Amendment. The Court of Appeals agreed with the District Court that the Policy must be evaluated in the unique environment of the school setting, but reached a different conclusion as to the Policys constitutionality. 242 F.3d 1264, 1270 (2001). Before imposing a suspicionless drug testing program, the Court of Appeals concluded that a school must demonstrate that there is some identifiable drug abuse problem among a sufficient number of those subject to the testing, such that testing that group of students will actually redress its drug problem. Id., at 1278. The Court of Appeals then held that because the School District failed to demonstrate such a problem existed among Tecumseh students participating in competitive extracurricular activities, the Policy was unconstitutional. We granted certiorari, 534 U.S. 1015 (2001), and now reverse.
The Fourth Amendment to the United States Constitution protects [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. Searches by public school officials, such as the collection of urine samples, implicate Fourth Amendment interests. See Vernonia, supra, at 652; cf. New Jersey v. T. L. O., 469 U.S. 325, 334 (1985). We must therefore review the School Districts Policy for reasonableness, which is the touchstone of the constitutionality of a governmental search.
In the criminal context, reasonableness usually requires a showing of probable cause. See, e.g., Skinner v. Railway Labor Executives Assn., 489 U.S. 602, 619 (1989). The probable-cause standard, however, is peculiarly related to criminal investigations and may be unsuited to determining the reasonableness of administrative searches where the Government seeks to prevent the development of hazardous conditions. Treasury Employees v. Von Raab, 489 U.S. 656, 667668 (1989) (internal quotation marks and citations omitted) (collecting cases). The Court has also held that a warrant and finding of probable cause are unnecessary in the public school context because such requirements  would unduly interfere with the maintenance of the swift and informal disciplinary procedures [that are] needed.  Vernonia, supra, at 653 (quoting T. L. O., supra, at 340341).
Given that the School Districts Policy is not in any way related to the conduct of criminal investigations, see Part IIB, infra, respondents do not contend that the School District requires probable cause before testing students for drug use. Respondents instead argue that drug testing must be based at least on some level of individualized suspicion. See Brief for Respondents 1214. It is true that we generally determine the reasonableness of a search by balancing the nature of the intrusion on the individuals privacy against the promotion of legitimate governmental interests. See Delaware v. Prouse, 440 U.S. 648, 654 (1979). But we have long held that the Fourth Amendment imposes no irreducible requirement of [individualized] suspicion. United States v. Martinez&nbhyph;Fuerte, 428 U.S. 543, 561 (1976). [I]n certain limited circumstances, the Governments need to discover such latent or hidden conditions, or to prevent their development, is sufficiently compelling to justify the intrusion on privacy entailed by conducting such searches without any measure of individualized suspicion. Von Raab, supra, at 668; see also Skinner, supra, at 624. Therefore, in the context of safety and administrative regulations, a search unsupported by probable cause may be reasonable when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.  Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (quoting T. L. O., supra, at 351 (Blackmun, J., concurring in judgment)); see also Vernonia, supra, at 653; Skinner, supra, at 619.
are different in public schools than elsewhere; the reasonableness inquiry cannot disregard the schools custodial and tutelary responsibility for children. Vernonia, supra, at 656. In particular, a finding of individualized suspicion may not be necessary when a school conducts drug testing.
In Vernonia, this Court held that the suspicionless drug testing of athletes was constitutional. The Court, however, did not simply authorize all school drug testing, but rather conducted a fact-specific balancing of the intrusion on the childrens Fourth Amendment rights against the promotion of legitimate governmental interests. See 515 U.S., at 652653. Applying the principles of Vernonia to the somewhat different facts of this case, we conclude that Tecumsehs Policy is also constitutional.
is the fact that the subjects of the Policy are (1) children, who (2) have been committed to the temporary custody of the State as schoolmaster); see also id., at 665 (The most significant element in this case is the first we discussed: that the Policy was undertaken in furtherance of the governments responsibilities, under a public school system, as guardian and tutor of children entrusted to its care); ibid. ([W]hen the government acts as guardian and tutor the relevant question is whether the search is one that a reasonable guardian and tutor might undertake).
A students privacy interest is limited in a public school environment where the State is responsible for maintaining discipline, health, and safety. Schoolchildren are routinely required to submit to physical examinations and vaccinations against disease. See id., at 656. Securing order in the school environment sometimes requires that students be subjected to greater controls than those appropriate for adults. See T. L. O., supra, at 350 (Powell, J., concurring) (Without first establishing discipline and maintaining order, teachers cannot begin to educate their students. And apart from education, the school has the obligation to protect pupils from mistreatment by other children, and also to protect teachers themselves from violence by the few students whose conduct in recent years has prompted national concern).
In any event, students who participate in competitive extracurricular activities voluntarily subject themselves to many of the same intrusions on their privacy as do athletes.4 Some of these clubs and activities require occasional off-campus travel and communal undress. All of them have their own rules and requirements for participating students that do not apply to the student body as a whole. 115 F. Supp. 2d, at 12891290. For example, each of the competitive extracurricular activities governed by the Policy must abide by the rules of the Oklahoma Secondary Schools Activities Association, and a faculty sponsor monitors the students for compliance with the various rules dictated by the clubs and activities. See id., at 1290. This regulation of extracurricular activities further diminishes the expectation of privacy among schoolchildren. Cf. Vernonia, supra, at 657 (Somewhat like adults who choose to participate in a closely regulated industry, students who voluntarily participate in school athletics have reason to expect intrusions upon normal rights and privileges, including privacy (internal quotation marks omitted)). We therefore conclude that the students affected by this Policy have a limited expectation of privacy.
Next, we consider the character of the intrusion imposed by the Policy. See Vernonia, supra, at 658. Urination is an excretory function traditionally shielded by great privacy. Skinner, 489 U.S., at 626. But the degree of intrusion on ones privacy caused by collecting a urine sample depends upon the manner in which production of the urine sample is monitored. Vernonia, supra, at 658.
Under the Policy, a faculty monitor waits outside the closed restroom stall for the student to produce a sample and must listen for the normal sounds of urination in order to guard against tampered specimens and to insure an accurate chain of custody. App. 199. The monitor then pours the sample into two bottles that are sealed and placed into a mailing pouch along with a consent form signed by the student. This procedure is virtually identical to that reviewed in Vernonia, except that it additionally protects privacy by allowing male students to produce their samples behind a closed stall. Given that we considered the method of collection in Vernonia a negligible intrusion, 515 U.S., at 658, the method here is even less problematic.
In addition, the Policy clearly requires that the test results be kept in confidential files separate from a students other educational records and released to school personnel only on a need to know basis. Respondents nonetheless contend that the intrusion on students privacy is significant because the Policy fails to protect effectively against the disclosure of confidential information and, specifically, that the school has been careless in protecting that information: for example, the Choir teacher looked at students prescription drug lists and left them where other students could see them. Brief for Respondents 24. But the choir teacher is someone with a need to know, because during off-campus trips she needs to know what medications are taken by her students. Even before the Policy was enacted the choir teacher had access to this information. See App. 132. In any event, there is no allegation that any other student did see such information. This one example of alleged carelessness hardly increases the character of the intrusion.
Moreover, the test results are not turned over to any law enforcement authority. Nor do the test results here lead to the imposition of discipline or have any academic consequences. Cf. Vernonia, supra, at 658, and n. 2. Rather, the only consequence of a failed drug test is to limit the students privilege of participating in extracurricular activities. Indeed, a student may test positive for drugs twice and still be allowed to participate in extracurricular activities. After the first positive test, the school contacts the students parent or guardian for a meeting. The student may continue to participate in the activity if within five days of the meeting the student shows proof of receiving drug counseling and submits to a second drug test in two weeks. For the second positive test, the student is suspended from participation in all extracurricular activities for 14 days, must complete four hours of substance abuse counseling, and must submit to monthly drug tests. Only after a third positive test will the student be suspended from participating in any extracurricular activity for the remainder of the school year, or 88 school days, whichever is longer. See App. 201-202.
Given the minimally intrusive nature of the sample collection and the limited uses to which the test results are put, we conclude that the invasion of students privacy is not significant.
Finally, this Court must consider the nature and immediacy of the governments concerns and the efficacy of the Policy in meeting them. See Vernonia, 515 U.S., at 660. This Court has already articulated in detail the importance of the governmental concern in preventing drug use by schoolchildren. See id., at 661662. The drug abuse problem among our Nations youth has hardly abated since Vernonia was decided in 1995. In fact, evidence suggests that it has only grown worse.5 As in Vernonia, the necessity for the State to act is magnified by the fact that this evil is being visited not just upon individuals at large, but upon children for whom it has undertaken a special responsibility of care and direction. Id., at 662. The health and safety risks identified in Vernonia apply with equal force to Tecumsehs children. Indeed, the nationwide drug epidemic makes the war against drugs a pressing concern in every school.
Additionally, the School District in this case has presented specific evidence of drug use at Tecumseh schools. Teachers testified that they had seen students who appeared to be under the influence of drugs and that they had heard students speaking openly about using drugs. See, e.g., App. 72 (deposition of Dean Rogers); id., at 115 (deposition of Sheila Evans). A drug dog found marijuana cigarettes near the school parking lot. Police officers once found drugs or drug paraphernalia in a car driven by a Future Farmers of America member. And the school board president reported that people in the community were calling the board to discuss the drug situation. See 115 F. Supp. 2d, at 12851286. We decline to second- guess the finding of the District Court that [v]iewing the evidence as a whole, it cannot be reasonably disputed that the [School District] was faced with a drug problem when it adopted the Policy. Id., at 1287.
[is] not in all cases necessary to the validity of a testing regime, but that some showing does shore up an assertion of special need for a suspicionless general search program. Chandler v. Miller, 520 U.S. 305, 319 (1997). The School District has provided sufficient evidence to shore up the need for its drug testing program.
Furthermore, this Court has not required a particularized or pervasive drug problem before allowing the government to conduct suspicionless drug testing. For instance, in Von Raab the Court upheld the drug testing of customs officials on a purely preventive basis, without any documented history of drug use by such officials. See 489 U.S., at 673. In response to the lack of evidence relating to drug use, the Court noted generally that drug abuse is one of the most serious problems confronting our society today, and that programs to prevent and detect drug use among customs officials could not be deemed unreasonable. Id., at 674; cf. Skinner, 489 U.S., at 607, and n. 1 (noting nationwide studies that identified on-the-job alcohol and drug use by railroad employees). Likewise, the need to prevent and deter the substantial harm of childhood drug use provides the necessary immediacy for a school testing policy. Indeed, it would make little sense to require a school district to wait for a substantial portion of its students to begin using drugs before it was allowed to institute a drug testing program designed to deter drug use.
Respondents also argue that the testing of nonathletes does not implicate any safety concerns, and that safety is a crucial factor in applying the special needs framework. Brief for Respondents 2527. They contend that there must be surpassing safety interests, Skinner, supra, at 634, or extraordinary safety and national security hazards, Von Raab, supra, at 674, in order to override the usual protections of the Fourth Amendment. See Brief for Respondents 2526. Respondents are correct that safety factors into the special needs analysis, but the safety interest furthered by drug testing is undoubtedly substantial for all children, athletes and nonathletes alike. We know all too well that drug use carries a variety of health risks for children, including death from overdose.
tional floor, below which a search must be presumed unreasonable).
Finally, we find that testing students who participate in extracurricular activities is a reasonably effective means of addressing the School Districts legitimate concerns in preventing, deterring, and detecting drug use. While in Vernonia there might have been a closer fit between the testing of athletes and the trial courts finding that the drug problem was fueled by the role model effect of athletes drug use, such a finding was not essential to the holding. 515 U.S., at 663; cf. id., at 684685 (OConnor, J., dissenting) (questioning the extent of the drug problem, especially as applied to athletes). Vernonia did not require the school to test the group of students most likely to use drugs, but rather considered the constitutionality of the program in the context of the public schools custodial responsibilities. Evaluating the Policy in this context, we conclude that the drug testing of Tecumseh students who participate in extracurricular activities effectively serves the School Districts interest in protecting the safety and health of its students.
Within the limits of the Fourth Amendment, local school boards must assess the desirability of drug testing schoolchildren. In upholding the constitutionality of the Policy, we express no opinion as to its wisdom. Rather, we hold only that Tecumsehs Policy is a reasonable means of furthering the School Districts important interest in preventing and deterring drug use among its schoolchildren. Accordingly, we reverse the judgment of the Court of Appeals.
1. The District Court noted that the School Districts allegations concerning Daniel James called his standing to sue into question because his failing grades made him ineligible to participate in any interscholastic competition. See 115 F. Supp. 2d 1281, 1282, n. 1 (WD Okla. 2000). The court noted, however, that the dispute need not be resolved because Lindsay Earls had standing, and therefore the court was required to address the constitutionality of the drug testing policy. See ibid. Because we are likewise satisfied that Earls has standing, we need not address whether James also has standing.
2. The respondents did not challenge the Policy either as it applies to athletes or as it provides for drug testing upon reasonable, individualized suspicion. See App. 28.
3. Justice Ginsburg argues that Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995), depended on the fact that the drug testing program applied only to student athletes. But even the passage cited by the dissent manifests the supplemental nature of this factor, as the Court in Vernonia stated that [l]egitimate privacy expectations are even less with regard to student athletes. See post, at 5 (citing Vernonia, 515 U.S., at 657) (emphasis added). In upholding the drug testing program in Vernonia, we considered the school context [c]entral and [t]he most significant element. 515 U.S., at 654, 665. This hefty weight on the side of the schools balance applies with similar force in this case even though we undertake a separate balancing with regard to this particular program.
4. Justice Ginsburgs observations with regard to extracurricular activities apply with equal force to athletics. See post, at 4 (Participation in such [extracurricular] activities is a key component of school life, essential in reality for students applying to college, and, for all participants, a significant contributor to the breadth and quality of the educational experience).
5. For instance, the number of 12th graders using any illicit drug increased from 48.4 percent in 1995 to 53.9 percent in 2001. The number of 12th graders reporting they had used marijuana jumped from 41.7 percent to 49.0 percent during that same period. See Department of Health and Human Services, Monitoring the Future: National Results on Adolescent Drug Use, Overview of Key Findings (2001) (Table 1).


In U.S. v. Goyal, the government contended that the defendant, former CFO of Network Associates, had violated GAAP by causing the company to recognize revenue from certain sales sooner than it should have, and of lying to the company’s auditor. The jury convicted defendant of securities fraud, false SEC filings, and making materially false statements to NAI’s auditors.
This case has consumed an inordinate amount of taxpayer resources, and has no doubt devastated the defendant’s personal and professional life. The defendant’s former employer also paid a price, footing a multimillion dollar bill for the defense. And, in the end, the government couldn’t prove that the defendant engaged in any criminal conduct. This is just one of a string of recent cases in which courts have found that federal prosecutors overreached by trying to stretch criminal law beyond its proper bounds. See Arthur Andersen LLP v.United States, 544 U.S. 696, 705-08 (2005); United States v. Reyes, 577 F.3d 1069, 1078 (9th Cir. 2009); United States v. Brown, 459 F.3d 509, 523-25 (5th Cir. 2006); cf. United States v. Moore, 612 F.3d 698, 703 (D.C. Cir. 2010) (Kavanaugh, J., concurring) (breadth of 18 U.S.C. § 1001 creates risk of prosecutorial abuse).
This is not the way criminal law is supposed to work. Civil law often covers conduct that falls in a gray area of arguable legality. But criminal law should clearly separate conduct that is criminal from conduct that is legal. This is not only because of the dire consequences of a conviction—including disenfranchisement, incarceration and even deportation—but also because criminal law represents the community’s sense of the type of behavior that merits the moral condemnation of society. See United States v. Bass, 404 U.S. 336, 348 (1971) (“[C]riminal punishment usually represents the moral condemnation of the community . . . .”); see also Wade v. United States, 426 F.2d 64, 69 (9th Cir. 1970) (“[T]he declaration that a person is criminally responsible for his actions is a moral judgment of the community . . . .”). When prosecutors have to stretch the law or the evidence to secure a conviction, as they did here, it can hardly be said that such moral judgment is warranted.
Mr. Goyal had the benefit of exceptionally fine advocacy on appeal, so he is spared the punishment for a crime he didn’t commit. But not everyone is so lucky. The government shouldn’t have brought charges unless it had clear evidence of wrongdoing, and the trial judge should have dismissed the case when the prosecution rested and it was clear the evidence could not support a conviction. Although we now vindicate Mr. Goyal, much damage has been done. One can only hope that he and his family will recover from the ordeal. And, perhaps, that the government will be more cautious in the future.
Depriving people of their freedom is the most serious thing our government can do, short of killing them. It is justified if we’re very sure the conduct deserves society’s severest condemnation. If we’re not sure, we risk diluting the moral force of the criminal law and instilling doubts concerning the system’s fairness. Just as we don’t tolerate a reasonable doubt about whether a particular defendant is guilty of the crime charged, so we should want to be sure that the conduct he’s been charged with should be treated as criminal.
I’ll have more to say about the travesty of over-criminalization of agency costs in a forthcoming article.
Whatever the other merits of the appellate court’s decision, it’s a bit bizarre for Kozinski to be going on about what the government couldn’t prove, and emphasizing that criminal law is the community’s sense of right and wrong — in a case where he’s reversing a jury verdict.
I missed the part in which Judge Kozinski mentioned sending the names of all prosecutors involved to their respective bar associations for possible disciplinary action.
Exactly. Conrad Black is still in jail.
I am surprised to hear K’s advocating the idea that “the community’s sense of the type of behavior that merits the moral condemnation of society” is a standard that separates criminal from civil law. I thought we commoners were not allowed to pass laws based on our sense of morality. Only the big boys in black robes get to refer to morality.
I agree. Prosecutors have become too creative in their application of criminal law. But this is only part of the problem. Legislatures are too willing to criminalize mere bad fortune. Take a look at the criminal penalties Congress made applicable to a CFO who signs off on financial statements that contain a material error. Under the law, the CFO is subject to criminal liability even if the CFO can prove that he or she were unaware of the error and that he or she was not unaware due to negligence. Even if the errors in the financial statements were due to nothing more than a mistake with no one having any intent to deceive or defraud, the CFO could go to jail. That’s a misuse of the criminal justice system that in many ways is worse than what the prosecutors have been doing.


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CITY OF NORWALK, et al., Defendants.
This is a case that principally involves a claim of excessive force by police officers in Norwalk, Connecticut. Plaintiff Chauncey Moore contends that in April 2014 police officers from the City of Norwalk brutally beat him, subjected him to racial slurs, and forced him to have his stomach pumped on a pointless pretense that he had swallowed illegal drugs.
Plaintiff filed his complaint pro se. The federal court's docket features many cases with pro se plaintiffs. Many of these plaintiffs ask for the appointment counsel. I rarely grant these requests, but this is one of those rare cases that I believe an appointment of counsel to be warranted.
I directed the appointment of counsel for plaintiff in accordance with Rule 83.10 of the District of Connecticut's local civil rules. That rule provides for the random assignment of an attorney who has been admitted to practice before this Court to represent a pro se plaintiff if “the judge determines that the appointment will serve the interests of justice based upon factors such as (a) a party's apparent ability or inability to afford legal counsel, (b) the likelihood that counsel may be secured under alternative fee arrangements, and (c) the apparent merit of the party's claims or defenses.” D. Conn. L. Civ. R. 83.10(c)(1); see also Hendricks v. Coughlin, 114 F.3d 390, 392-93 (2d Cir. 1997) (discussing factors for court to consider when deciding whether to grant motion for appointment of counsel).
If I grant the appointment of counsel, I count on the integrity and good faith of appointed counsel not to try to evade the appointment or to try to mislead me about their lack of ability to assume the representation. Indeed, the appointment rule provides that “motions for relief from appointment are disfavored, as the Court views the acceptance of pro bono assignments from time to time as a professional responsibility of the attorneys who are members of its Bar.” Id., 83.10(g). The rule further states that the Court is “unlikely” to grant relief from an appointment “on the ground that counsel lacks experience in the area of law involved in the case, ” because “in the Court's experience, even an attorney who is inexperienced or unfamiliar with the subject matter can provide valuable assistance to an unrepresented person.” Ibid. Moreover, the rule provides that the Court is “unlikely” to grant relief from an appointment “on the grounds that the appointment would be burdensome or interfere with counsel's other professional obligations where the Court can fashion a case schedule that reasonably mitigates such difficulties.” Ibid.
In accordance with Rule 83.10, the Court randomly appointed attorney Jonathan P. Budlong to represent plaintiff in this case. Attorney Budlong has now filed a motion to withdraw his appointment. According to Attorney Budlong, he has ethical doubts that he is competent to represent plaintiff because of his lack of familiarity with the relevant law and procedures at issue in this case. Doc. #45 at 1-2 (citing Conn. R. Prof. Cond. 1.1 & 6.2).
I do not agree. Attorney Budlong's webpage provides that he has 18 years of practice as a lawyer, that he is a name partner of his law firm, and that he "concentrates his practice on family matters ... as well as, criminal, probate, juvenile, and general civil litigation matters." See Budlong & Budlong, LLC - Attorneys / Jonathan P. Budlong (emphasis added), available at http://www.bblawfirm.com/attorneys/jpb.html (last accessed February 21, 2018). In view of Attorney Budlong's many years of litigation experience and the fact that he holds himself out to the public as fully capable of handling criminal matters and general civil litigation matters, the Court does not share Attorney Budlong's concern that he lacks the basic competence to represent a plaintiff who claims that he was subject to the use of excessive force by the police.
For that matter, the ethics rules themselves do not suggest that a lawyer is incompetent to represent a client merely because he or she has not handled this specific type of matter before. The commentary to Rule 1.1 states in relevant part that “[a] lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar, ” that “[s]ome important legal skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal problems, ” and that “[a] lawyer can provide adequate representation in a wholly novel field through necessary study.” Conn. R. Prof. Cond. 1.1 cmt. In light of all this, I am confident that if Attorney Budlong applies himself with reasonable diligence to his representation of plaintiff-just as he would for any fee-paying client-that he will steer well clear of any ethical challenges based on his lack of competence.
Attorney Budlong claims that he is “inexperienced in the matters presently before the Court” and that his “sole federal case since he was admitted to the federal Court in 2005 was a matter that derived completely from post-judgment issues in a Connecticut divorce case, primarily regarding the proper disposition of life insurance proceeds pursuant to the parties' marital dissolution judgment.” Doc. #45 at 2. This claim is not true. The Court's docket records reflect Attorney Budlong's appearance as counsel in three federal cases. See Massachusetts Mutual Life Ins. Co. v. Hodkin, 3:15-cv-00706 (RNC); Hodkin v. Massachusetts Mutual Life Ins. Co., 3:15-cv-00393 (MPS); Richardson v. Orlowski, 3:08-cv-01856 (MRK).
Moreover, one of those cases-not mentioned by Attorney Budlong in his motion- involved a claim against the police for the use of excessive force-the same subject matter for which Attorney Budlong now claims he is incompetent to represent plaintiff in this action. See Richardson v. Orlowski, 3:08-cv-01856 (JBA); see also Richardson v. Orlowski, 2010 WL 2825703 (D. Conn. 2010) (order denying summary judgment). Although the docket entries suggest that the matter was principally handled by other attorneys from Attorney Budlong's law firm, the docket shows Attorney Budlong's substantial involvement including his filing of a notice of appearance (Doc. #15), a motion to expedite discovery along with a supporting memorandum of law (Doc. #20), a motion to withdraw claims against certain defendants (Doc. #56), and the filing of an amended complaint that Attorney Budlong personally signed (Doc. #57).

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This is a suit in equity between the plaintiff, a New York corporation, and the defendant, a Massachusetts corporation, to enjoin infringement of the plaintiff's common-law trade-mark 'Aspirin.' The bill was filed in May, 1917, and alleged that the plaintiff or its predecessors had since 1899 been selling throughout the United States a drug known as 'acetyl salicylic acid,' to which they had given the artificial trade-mark 'Aspirin'; that they had expended large sums of money in popularizing the trade-mark so adopted, which had thus become a synonym for the acetyl salicylic acid manufactured by them; that on May 5, 1899, the plaintiff's predecessor had registered this trade-mark in the United States, and that the plaintiff held both the common-law and the registered mark by proper assignments; that the value of the amount in controversy was more than $5,000; and that the defendant had infringed the mark by using the word 'Aspirin' in the sale of acetyl salicylic acid. The bill also charged the defendant with unfair trade in its advertisements of acetyl salicylic acid in the failure to discriminate sufficiently between its own manufacture and the plaintiff's. It prayed the usual injunction in such cases.
The answer denied the main facts and alleged that on August 1, 1898, the plaintiff's predecessor had applied for a patent for 'acetyl salicylic acid' which issued on February, 1900, and expired on February twenty-seventh, 1917, and that thereafter the product fell into the public domain and with it the word, 'Aspirin,' which had become the name for the drug and therefore descriptive. It denied the charges of unfair trade in the bill.
The facts shown upon the trial were in substance as follows: The predecessor of the plaintiff was a German corporation engaged in the manufacture of chemical products, among them the drug in question, which was its own invention. On August 1, 1898, it applied for a patent in the United States, and therein described the drug as 'acetyl salicylic acid.' This patent issued on February 27, 1900, and therefore expired 17 years thereafter. It was eventually sustained by the courts, and in theory should have given the plaintiff or its predecessors a monopoly of production. This, however, was not the case, at least for a long time, and probably not altogether at any time. Large quantities of it were surreptitiously introduced into this country and sold, and while the amounts are necessarily somewhat uncertain, the plaintiff showed that considerably more than 220 tons had in fact been imported, of which it is fair to presume that all or nearly all reached the eventual consumer. This represented a very substantial proportion of the drug manufactured and sold by the plaintiff itself or its predecessors. It is impossible to ascertain how much, if any, of this infringing drug was marketed under the name 'Aspirin,' but it is probable that little or none of it reached the retail druggists under that name.
The plaintiff called a number of retail druggists, who swore with substantial unanimity that they had never sold the infringing drug to the consumer under the name 'Aspirin,' and in many cases that the customers themselves asked for it as 'Acetylo' or as 'acetyl salicylic acid.' In Europe, where the plaintiff's predecessor appears not to have enjoyed the benefit of a patent, the drug was manufactured in open competition, but the name 'Aspirin' was uniformly respected as a trade-mark, other manufacturers selling either under the name mentioned in the patent or under artificial trade-marks invented by the manufacturers themselves.
The importation into this country by the plaintiff's predecessor began some time in the year 1899 and before the patent issued. At that time it was all sold in the form of powder, and for some years only to manufacturing chemists, retail druggists, or to physicians. The plaintiff's predecessor, however, did make it up into sample tablets, which it sent gratuitously to all or nearly all the physicians in the country in small quantities. It registered the name as a trade-mark on May 2, 1899. It advertised very largely in technical magazines, and in all its advertisements and on all its labels claimed the word 'Aspirin' as its trade-mark. For example, this legend was commonly employed: 'The word ' Aspirin' identifies it as the manufacture of' the plaintiff or its predecessors. None of these advertisements, however, were to the public at large, nor did any of the packages reach further than physicians, manufacturing chemists, or retail druggists. In its powder form it was only prescribed by physicians, except as now to be stated.
On the charge of unfair trade the plaintiff proved that the defendant advertised the drug of its own manufacture as 'genuine Aspirin,' and asserted that in other ways not necessary to describe it gave color to the supposition that its product had been made by plaintiff.
On November 30, 1918, an examiner of the Patent Office declared that the trade-mark was no longer valid and ordered its cancellation. From this decision no appeal was taken, and that feature of the case therefore falls out of consideration.
LEARNED HAND, District Judge (after stating the facts as above).
The issues in this case do not, I think, depend upon the decision in Singer Mfg. Co. v. June Mfg. Co., 163 U.S. 169, 16 Sup.Ct. 1002, 41 L.Ed. 118, so much as the defendant supposes. That case decided no more than that the existence of a patent during the period when the goods became known to the public might be a controlling element in determining whether the name under which they were sold indicated a single source of origin. Since then courts have several times said that the name of goods protected by patent might in fact indicate not only the kind of goods they were, but as well that they emanated from a single source. President Suspender Co. v. Macwilliam, 238 Fed. 159, 151 C.C.A. 235; Hughes v. Alfred H. Smith Co., 209 Fed. 37, 126 C.C.A. 179; Scandinavia Belting Co. v. Asbestos, etc., Co., 257 Fed. 937, 960, 169 C.C.A. 87; Searchlight Gas Co. v. Prest-o-Lite Co., 215 Fed. 693, 695, 131 C.C.A. 626.
So here it might be that the name 'Aspirin' in fact had come at once to describe the drug in question and also its origin from a single source. If it did, that would be enough to justify some protection, since the identity of the source need not be known. Birmingham, etc., Co. v. Powell, (1897) App. Cas. 710; Wetherspoon v. Currie, L.R. 5. H.L. 508. Indeed, the whole law of 'secondary meaning' is built upon that presupposition.
The single question, as I view it, in all these cases, is merely one of fact: What do the buyers understand by the word for whose use the parties are contending? If they understand by it only the kind of goods sold, then, I take it, it makes no difference whatever what efforts the plaintiff has made to get them to understand more. He has failed, and he cannot say that, when the defendant uses the word, he is taking away customers who wanted to deal with him, however closely disguised he may be allowed to keep his identity. So here the question is whether the buyers merely understood that the word 'Aspirin' meant this kind of drug, or whether it meant that and more than that; i.e., that it came from the same single, though, if one please anonymous, source from which they had got it before. Prima facie I should say, since the word is coined and means nothing by itself, that the defendant must show that it means only the kind of drug to which it applies. The fact that it was patented until 1917 is indeed a material circumstance, but it is not necessarily controlling.
In deciding that issue I cannot, however, approach the question formally, as the plaintiff wishes; as to say that there was a user before the patent, and therefore the patent could not forfeit this property right, or that there was never any intention to abandon the trade-mark and so it must have continued. No doubt it is convenient for many purposes to treat a trade-mark as property; yet we shall never, I think, keep clear in our ideas on this subject, unless we remember that relief always depends upon the idea that no man shall be allowed to mislead people into supposing that his goods are the plaintiff's, and that there can be no right or remedy until the plaintiff can show that at least presumptively this will result. Hanover Milling Co. v. Metcalf, 240 U.S. 403, 36 Sup.Ct. 357, 60 L.Ed. 709.
In the case at bar the evidence shows that there is a class of buyers to whom the word 'Aspirin' has always signified the plaintiff, more specifically indeed than was necessary for its protection. I refer to manufacturing chemists, to physicians, and probably to retail druggists. From 1899 it flooded the mails with assertions that 'Aspirin' meant its own manufacture. This was done in pamphlets, advertisements in trade papers, on the packages and cartons, and by the gratuitous distribution of samples. True, after 1904 it abandoned the phrase 'acetyl salicylic acid' for 'monoaceticacidester of salicylicacid,' but even that extraordinary collocation of letters was intelligible to these classes of buyers who, except possibly the more ignorant of the retail druggists, were measurably versed in the general jargon of pharmaceutical chemistry. Moreover, the drug continued to be generally known by the more tolerable phrase 'acetyl salicylic acid,' which also adequately described its chemical organization. As to these buyers the plaintiff has therefore, I think, made out a case at least to compel the addition of some distinguishing suffix, even though its monopoly had been more perfect than in fact it was.
The crux of this controversy, however, lies not in the use of the word to these buyers, but to the general consuming public, composed of all sorts of buyers from those somewhat acquainted with pharmaceutical terms to those who knew nothing of them. The only reasonable inference from the evidence is that these did not understand by the word anything more than a kind of drug to which for one reason or another they had become habituated. It is quite clear that while the drug was sold as powder this must have been so. It was dispensed substantially altogether on prescription during this period, and, although physicians appear to have used the terms, 'Aspirin' or 'acetyl salicylic acid' indifferently, it cannot be that such patients as read their prescriptions attributed to 'Aspirin' any other meaning than as an ingredient in a general compound, to which faith and science might impart therapeutic virtue. Nor is there any evidence that such as may have seen both terms identified them as the same drug. I cannot speculate as to how many in fact did so. No packages could possibly have reached the consumer, nor was any advertising addressed to them; their only acquaintance with the word was as the name for a drug in whose curative properties they had got confidence.
In 1904, however, they began to get acquainted with it in a different way, for then all the larger manufacturing chemists began to make tablets, and the trade grew to extraordinary proportions. The consumer, as both sides agree, had long before the autumn of 1915 very largely abandoned consultation with physicians and assumed the right to drug himself as his own prudence and moderation might prescribe. In all cases-- omitting for the moment the infringing product-- the drug was sold in bottles labeled 'Aspirin' with some indication of the name of the tablet maker, but none of the plaintiff. It is probable that by far the greater part of the tablets sold were in dozens or less, and that the bottles so labeled did not generally reach the hands of the consumer, but, even so, a not inconsiderable number of bottles of 100 were sold, and as to the rest they were sold only under the name 'Aspirin.' The consumer did not know and could not possibly know the manufacturer of the drug which he got, or whether one or more chemists made it in the United States. He never heard the name 'acetylsalicylic acid' as applied to it, and without some education could not possibly have kept it in his mind, if he had. So far as any means of information at all were open to him, they indicated that it was made by most large chemists indiscriminately.
This being the situation up to the autumn of 1915, the defendant seems to me to have effectually rebutted any presumption which the coined word might carry. However, the plaintiff argues along with this user large infringing sales of the drug were being made to consumers under the name 'acetyl salicylic acid.' It has indeed proved that it was unable absolutely to protect the monopoly of the patent, and it is clear that large quantities were piratically sold, though, so far as this record shows, with uniform respect for its trade- mark. Further, a good many retail druggists swore, with undoubted truth, that their customers got accustomed to the use of the phrase and could either ask for the drug or get it written out on a slip of paper and present that. I think I must accept the record as showing that this went on to a substantial, though obviously to a wholly indeterminate, extent. However, I need not accept, because I do not believe, that all the piratical drug was sold to the consumer under the name 'acetyl salicylic acid.' This is inherently improbable, and evidence to the contrary was not produced by, and naturally not available to, the plaintiff.
Aside from the fact that there is authority for saying that the inadequacy of the patent wholly to protect the plaintiff is immaterial (Horlick's Food Co. v. Elgin Milkine Co., 120 Fed. 264, 56 C.C.A. 544), this evidence does not appear to me to help the plaintiff at all. It shows nothing more than that there was a class of buyers who knew a drug going by the name 'acetyl salicylic acid,' which was useful for some purposes, in fact (though this they did not necessarily know), the same as those for which 'Aspirin' was useful. There is no evidence that these buyers knew that this drug was the same as 'Aspirin,' or that they ever asked for or bought 'Aspirin.' Nor is there any evidence, as I have already said (and this is the critical point), that with rare exceptions those who asked for and knew 'Aspirin' identified it with 'acetyl salicylic acid,' or supposed that 'Aspirin' was that drug, when made by some one in particular. They bought tablets of various manufacture, and if they knew of the different tablet makers, they would, as above stated, have supposed that not only the tablets, but the drug itself, were made by the chemists from whom it apparently emanated. For these reasons I do not regard the sales of 'acetyl salicylic acid' by that name as material to the issue between the parties here.
After the autumn of 1915 the plaintiff totally changed its methods, and thereafter no tablets reached the consumer without its own name. But it is significant that even then it used the word 'Aspirin' as though it was a general term, although it is true that there was ample notice upon the bottles and boxes that 'Aspirin' meant its manufacture. The most striking part of the label read, 'Bayer-- Tablets of Aspirin.' While this did not show any abandonment of the name, which there has never been, it did show how the plaintiff itself recognized the meaning which the word had acquired, because the phrase most properly means that these tablets were Bayer's make of the drug known as 'Aspirin.' It presupposes that the persons reached were using the word to denote a kind of product. Were it not so, why the addition of 'Bayer,' and especially why the significant word 'of'?
Disregarding this, however, it was too late in the autumn of 1915 to reclaim the word which had already passed into the public domain. If the consuming public had once learned to know 'Aspirin' as the accepted name for the drug, perhaps it is true that an extended course of education might have added to it some proprietary meaning, but it would be very difficult to prove that it had been done in 17 months, and in any case the plaintiff does not try to prove it. The issue in this aspect, indeed, becomes whether during that period the word had obtained a secondary meaning, and I do not understand that any such thing is claimed. If it is, I own I cannot find any basis for it in the record. Probably what really happened was that the plaintiff awoke to the fact that on the expiration of the patent its trade-mark would be questioned, and strove to do what it could to relieve it of any doubts. Yet, had it not been indifferent to the results of selling to the consumer, it could have protected itself just as well at the time when consumers began to buy directly as in 1915. Nothing would have been easier than to insist that the tablet makers should market the drug in small tin boxes bearing the plaintiff's name, or to take over the sale just as it did later. Instead of this, they allowed the manufacturing chemists to build up this part of the demand without regard to the trade-mark. Having made that bed, they must be content to lie in it. Hence it appears to me that nothing happening between October, 1915, and March, 1917, will serve to turn the word into a trade-mark.
The plaintiff argues that, if it is to be so treated, it is impossible to get a trade-mark for an 'ethical' remedy, which apparently means a remedy not directly advertised or sold to the public. But it must not blow hot and cold. If a manufacturer thinks it undesirable to advertise and sell drugs direct, the inevitable consequence of adhering to that standard is that no trade-mark among consumers can be acquired, because they can know nothing of it. Virtue in such cases must be its own reward, or must realize its material profits in the long cast. Moreover, the plaintiff's complaint comes now with doubtful consistency after some 16 years of sales in one way or another without the intervention of physicians. It can scarcely claim to have been ignorant of the fact that the millions of tablets which were being sold before October, 1915, were in large part sold direct, and that, if it was not itself addressing the consumer, it had become unnecessary to do so. I do not suggest that there was the least impropriety in all this, but it appears to me to leave little ground for asserting that its superior virtue has been the cause of its undoing. Besides, however much can be made of this before October, 1915, thereafter the plaintiff certainly felt no compunctions. Now its drug was no different then from itself in 1899; nor was there, I think, any less danger from self-medication. They had, indeed, through their admirable methods of introducing it, given it a good reputation, consonant with their own very high standing, but that seems to me rather an instance of the skill with which their business was conducted, than of scruples, which, in the light of subsequent events, they would, I should say, have always thought overstrained. But, however all that may be, they cannot, of course, get a trade-mark conditioned in fact upon directly addressing the consumer, and maintain a reputation based upon never doing so.
There are words, such as 'Lactobacilline' (29 Rep.Pat.Cas. 497), 'Vaseline' (19 Rep.Pat.Cas. 342), 'Argyrol' ((C.C.) 164 Fed. 213), 'Valvoline' ((C.C.) 38 Fed. 922), or 'Celluloid' ((C.C.) 32 Fed. 94), which may at once mean both the kind of goods and their maker. These will be entitled to a qualified protection. The most striking illustration is perhaps Singer Mfg. Co. v. June Mfg. Co., supra, itself, where the putative mark was a proper name. The validity of a trade-mark does not, indeed, rigidly depend upon its meaning only the differential between a genus, defined by the kind of goods, and a species, defined by that kind when emanating from the owner. Guastavino v. Comerma (C.C.) 180 Fed. 920. When it means the owner as well as the kind, it will be entitled to a qualified protection; when, as here among the trade, there is another current word, it may be entitled to an absolute protection, patent or not. For a patent gives the public no greater rights than it has without patent. We speak of a dedication of the disclosure, but that is rather for convenience. In fact, the public may always practice the invention, except as the monopoly interferes, and it gets that right independently of the patent. But when, as here among consumers, a mark does not give even an intimation of the owner, there is no room at all for any protection. Centaur Co. v. Heinsfurter, 84 Fed. 955, 28 C.C.A. 581; Linoleum Mfg. Co. v. Nairn, L.R. 7 Ch.Div. 834. After all presumptions and other procedural advantages have been weighed, the owner must show that his mark means him, else he cannot prevent others from using it. There is no invention in the word, qua word, which he can protect.
The case, therefore, presents a situation in which, ignoring sporadic exceptions, the trade is divided into two classes, separated by vital differences. One, the manufacturing chemists, retail druggists, and physicians, has been educated to understand that 'Aspirin' means the plaintiff's manufacture, and has recourse to another and an intelligible name for it, actually in use among them. The other, the consumers, the plaintiff has, consciously I must assume, allowed to acquaint themselves with the drug only by the name 'Aspirin,' and has not succeeded in advising that the word means the plaintiff at all. If the defendant is allowed to continue the use of the word of the first class, certainly without any condition, there is a chance that it may get customers away from the plaintiff by deception. On the other hand, if the plaintiff is allowed a monopoly of the word as against consumers, it will deprive the defendant, and the trade in general, of the right effectually to dispose of the drug by the only description which will be understood. It appears to me that the relief granted cannot in justice to either party disregard this division; each party has won, and each has lost.
The plaintiff argues that this is an innovation in the law. I think not. In two very recent cases the Supreme Court has taken the very point, though the division chanced to be territorial instead of arising from the facts of the market. In Hanover Milling Co. v. Metcalf, 240 U.S. 403, 36 Sup.Ct. 357, 60 L.Ed. 713, and United Drug Co. v. Rectanus, 248 U.S. 90, 39 Sup.Ct. 48, 63 L.Ed. 141, a trade-mark and a trade-name were refused protection, though valid elsewhere, in parts of the country where the buyers did not know that they signified the owner, and because they did not. Mr. Justice Pitney especially adverted to the basis upon which the whole law rests. 'Cessit ratio, cessit lex.' If the rule applies to vertical divisions of the demand, it must apply to horizontal. Of course, we must not attempt too fine an application of such divisions, one reason perhaps for Mr. Justice Holmes' concurring opinion in Hanover Mills v. Metcalf, supra. For example, in the case at bar it is impossible to provide for such rare retailers as may not, and such rare customers as may, know that 'Aspirin' is a trade-mark. We can cut only so fine as our shears permit, and there will be ragged edges on either side.
As to the first class the question arises whether the injunction should be absolute or conditional. A strong case may be made for the defendant's present labels. They all bear the letters 'U.D. Co.' in juxtaposition with 'Aspirin' and of equal size. These letters are universally known by the trade to signify the plaintiff, because the custom is general for manufacturing chemists in this way to mark their goods. I think that the plaintiff would be adequately protected but for the 10 years' history of the tablet trade. However, the fact is that during that time such legends were used to indicate that the manufacturing chemist who signed, as it were, the label, was making the tablets from the plaintiff's powder. Probably at present that belief has largely disappeared, but, since we are dealing with customers who are presumably aware of that history, and who have been repeatedly told that 'Aspirin' signifies the plaintiff, I can see no reason for subjecting it to the chance. The phrase 'acetyl salicylic acid' to them is intelligible; it means the same drug as 'Aspirin,' and its use ought not unduly to hamper the trade in its business. Besides, the case in this aspect is one of trade-mark proper. Therefore I will grant an injunction against direct sales of the drug under the name 'Aspirin' to manufacturing chemists, physicians, and retail druggists. This will, of course, include invoices and correspondence.
In sales to consumers there need, however, be no suffix or qualification whatever. In so far as customers came to identify the plaintiff with 'Aspirin' between October, 1915, and March, 1917, this may do it some injustice, but it is impracticable to give any protection based on that possibility. Among consumers generally the name has gone into the public domain. The defendant, as I understand it, makes no direct sales, and all its transactions will therefore probably fall within the injunction, but the sale of its stockholding retailers will be free, and it may so instruct them. Moreover, I see no reason why the defendant should be compelled to sell in such large bottles or boxes that the retailers must bottle or box tablets for themselves. This is a trade advantage which conceivably may be of capital consequence in competition. True, it must sell to these retailers clearly under the name 'acetyl salicylic acid,' but the retailers may themselves use the word 'Aspirin.' So it seems to me that the defendant should be allowed to pack its tablets in bottles or boxes of 50 or less, bearing the name 'Aspirin' without more. These must, however, be sold to the retailers as acetyl salicylic acid, and when shipped must be inclosed in a container marked only 'acetyl salicylic acid,' with the defendant's name on it. I have limited the quantity to 50 because it seems to me that in greater quantities the permission might be a means by which the retailers could sell the drug to physicians as 'Aspirin.' True, some physicians may buy as little as 50 at a time, just as some consumers in fact buy more. But some compromise must be made. If there are physicians who buy in such small quantities, the plaintiff must rely upon preventing the retailers from using these bottles; if there are consumers who wish more, the defendant must submit to the disadvantage that the retailers must sell 2 at a time, or must relabel a bottle of 100.
The unfair trade aspect of the case requires little consideration. I can see nothing in the advertisements of the retail shops which is open to criticism, except the use of the adjective 'genuine' before 'Aspirin.' Of course, to those who know the drug only by that name this is not misleading; yet it is hard to escape the suspicion that the purpose was broader, perhaps to catch these consumers who have become conscious of the secondary meaning of the word; i.e., those whom the plaintiff's advertising since October, 1915, has reached. 'Pure' or 'unadulterated' would serve equally well for the purpose and would be free from any possible objection. Perhaps there are other inoffensive adjectives. The injunction may include the use of 'genuine.' Criticism of the advertisement of '100,' etc., appears to me a little overstrained.
I have not considered the question of the plaintiff's title, as I assume. in view of the limited relief granted, the defendant will not care to press it. If not, I will do so upon request made within 10 days after this opinion is filed.

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