Sunday, July 6, 2014
European Union urge for deeper investigation into Afghan election fraud
Twitter: A Sleeping Discovery Giant?
injury attorneys injury lawers injury lawyer injury lawyers international law
Saturday, July 5, 2014
At 50, The Civil Rights Act Creates 'Opportunities For All Americans'
Fifty years ago, President Lyndon Johnson signed the Civil Rights Act of 1964. Michel Martin speaks with historians Charles Cobb and Taylor Branch about the legacy of the Act and what it accomplished.
Bipartisan Board OKs NSA Surveillance Program, With Suggestions
The independent Privacy and Civil Liberties Oversight Board has offered recommendations on how to reform one of the surveillance programs deployed by the National Security Agency. The privacy board found that the program, which was revealed by former NSA contractor Edward Snowden, is constitutional and free of abuse, but it's still proposing reforms.
Supreme Court Watch: Employment law cases
We will be watching three pending cases at the US Supreme Court as the Court's session opens today:
Kloeckner v. Solis
Oral argument on October 2.
The Merit Systems Protection Board (MSPB) hears appeals by federal employees regarding certain adverse actions, such as dismissals. If the employee asserts that the challenged action was the result of unlawful discrimination, that claim is referred to as a "mixed case."
Question Presented: If the MSPB decides a mixed case without determining the merits of the discrimination claim, is the court with jurisdiction over that claim the Court of Appeals for the Federal Circuit or a district court?
Vance v. Ball State Univ
Oral argument on November 26.
Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) held that under Title VII, an employer is vicariously liable for workplace harassment by a supervisor of the victim. If the harasser was the victim’s co-employee, however, the employer is not liable absent proof of negligence.
Question Presented: Whether the Faragher and Ellerth “supervisor” liability rule (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim’s daily work, or (ii) is limited to those harassers who have the power to “hire, fire, demote, promote, transfer, or discipline” their victim.
Genesis HealthCare v. Symczyk
Oral argument December 3.
Symczk sued under the Fair Labor Standards Act (FLSA) on behalf of herself and all others similarly situated. This was a section 216(b) collective action. The defendants extended an offer of judgment under Fed. R. Civ. P. 68 in full satisfaction of her alleged damages, fees, and costs - prior to her moving for conditional certification and prior to other potential plaintiffs opting in.
Question Presented: Whether a case becomes moot, and thus beyond the judicial power of Article III, when the lone plaintiff receives an offer from the defendants to satisfy all of the plaintiff's claims.
Source: http://www.lawmemo.com/blog/2012/10/supreme_court_w_11.html
Entropy: It's Not What It Used To Be*
My ability to do what I do, to function, depends on my maintaining order. In a world of chaos, it's a constant battle. No man is an island, and so almost every function relies to some greater or lesser extent on interactions with others. In order to prepare an affidavit, a person must take or return my phone call, do so in time for me to get their words on paper in both an accurate and comprehensible manner, make sure I've captured their thoughts properly, get it executed and file and serve the document. If the person decides that he would rather go to the beach than speak with me, but will get back to me later, the entire scheme can fall apart. A call back on Monday at 11 doesn't help when the papers are due Monday at 9.
When I explain how their conduct affected my ability to do my job, the response is one of two things: "Oh, I didn't realize," or "you should have told me that before." Of course, I can't tell you anything if you don't take or return my call. "Oh."
It's a fragile set up at best. Some people are reliable in a way that allows other to count on them, to plan ahead and not find themselves in a quagmire from which they can't emerge. These are people who make other people's lives go smoothly. They tend to be somewhere along the anal compulsive spectrum, which sounds pretty nasty but is actually a really good thing for organized people, especially lawyers.
Others are chaos personified, off in the thousand directions without any thought whatsoever to the consequences for themselves or those who rely on them. Their alternative to order is their tolerance of disorder. It's not that they don't eventually come to realize what they failed to accomplish because of their chaotic approach to responsibility, but that they can live with themselves that way.
God, grant me the serenity to accept the things I cannot change,Then again, it has nothing to do with God. It has to do with us. We make choices. If you're inclined to believe in a deity, then know that the deity imbued you with the power to make wise or foolish choices, and left it to you to decide which.
The courage to change the things I can,
And wisdom to know the difference.
You can choose a ready guide in some celestial voice.When I'm asked how I manage to get as much done in a day as I do, the answer is order. I organize. I plan ahead. I try to anticipate the chaos I will confront in the course of trying to get things done so that I can accommodate it as much as possible, and will give myself enough room so that someone else's choice of disorder won't completely undermine what I need to accomplish.
If you choose not to decide, you still have made a choice.
You can choose from phantom fears and kindness that can kill;
I will choose a path that's clear-
I will choose Free Will.
The other day, a massive failure to accomplish a task upon which I relied was explained to me as the result of unforeseen circumstances. It wasn't quite true. Getting hit by a truck is an unforeseen circumstances. Making overly optimistic promises which you chose not to keep when time or interest gets tight is not an unforeseen circumstances. It's life.
There is a difference between explanations and excuses. When something doesn't go as intended, which happens despite best efforts and planning, there is either an explanation or it was just a screw-up. If the former, then there is a reason. If there is no reason, then it's a screw-up. Yes, screw-ups happen. No, they don't have to. Are they your fault? Yes. That's why we call them screw-ups.
Excuses are a different animal. Excuses are explanations that shift the fault onto the party who caused the problem. Most are imperfect, in that fault is born by more than one party, often all parties, who either failed to do what they should have, or said they would, as well as parties who failed to anticipate or accommodate the chaos wrought by others involved. See how that works? We knew that other people screw-up, and so we assume the responsibility of inserting that potential in our equation of order. When we organize our world, we do so in anticipation of entropy.
It's all a choice. Frankly, the failure to realize this, to conduct oneself as an island of order in a world tending toward chaos, to both live an ordered life and recognize that others don't or won't, is a choice. If you want to do what you can to do better, be more responsible, keep your promises to others despite reliance on those who infuse their chaos into your world, you can. But you must make the choice.
It's hard to fight entropy, but those who do keep the world running.
* The title is brazenly stolen from Buzzfeed's 21 Jokes Only Nerds Will Understand.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/07/14/entropy-its-not-what-it-used-to-be.aspx?ref=rss
Benghazi Suspect Spends A Day In Court
Ahmed Abu Khattalah, a suspect charged in connection with the 2012 Benghazi attacks, had a hearing Wednesday in Washington, D.C. After a public defender outlined her arguments in Khattalah's defense, the judge ordered that he be detained.
Source: http://www.npr.org/2014/07/02/327797214/benghazi-suspect-spends-a-day-in-court?ft=1&f=1070
lawyer directory lawyer fees lawyer firm lawyer malpractice attorneys lawyer office
Woman Charged In Denver With Seeking To Aid Islamic Extremists
Shannon Maureen Conley was arrested in April as she boarded a flight that would have ultimately landed her in Syria, where she hoped to wage jihad alongside ISIS rebels.
Magic Words, Magic Rights
Or does the 4th Amendment REALLY vanish with those magic words?
I've been stopped and the cop claimed he smelled pot, when, at the time, I hadn't touched the stuff in years. I told him I'd consent to a search if he apologized for wasting both of our time when he didn't find anything. He searched, didn't find anything, and I was on my way without an apology and a "verbal warning" to fix my tail light
Do you ask for another officer's opinion?
Do you tell the officer "bullshit"?
I'm just trying to help some people know what to do in this situation.
Initially, it helps for have a basic understanding of the law as it currently exists. When a cop says he "smells pot," he is invoking the automobile exception to the warrant requirement, which is based on exigent circumstances. Since a person can drive away, and thereby evade arrest and seizure of evidence of a crime in a car, the Supreme Court crafted the exception fin Carroll v. United States, a 1925 opinion about bootleggers getting away from the revenuers, which has done more harm to the 4th Amendment than perhaps any other case.
Since smell can't be captured and bottled for later presentation to a judge, the only "proof" of what an officer smelled is the officer's testimony. If he says so, it becomes real, and that's why they are magic words. Other than proving impossibility or incredibility, there is essentially nothing that can be done to challenge what the cop says he smelled. More importantly, even if a subsequent search turns up no pot, that doesn't mean he didn't smell what he smelled. The officer will testify about his training and experience in smelling pot, and yet he can be mistaken. The law doesn't require the cop to be right.
But the discussion thread about the magic words is where a grave misunderstanding about the system becomes clear. The problem derives from the absence of any marijuana in the car. The cop says he smelled it. This gives rise to probable cause to search and the automobile exception allows the cop to do so without a warrant. A search follows, and it can be as intrusive as the cop chooses to make it. By intrusive, it can include dismantling your brand new Maserati into a million pieces on the side of the road and, when it's over, leaving it there.
So the cop smells pot, searches and comes up empty. No apology. No help putting your Maserati back together. He drives away without so much as a tip o' the hat. This is where people don't seem to understand how constitutional rights work.
There are no elves in the backroom enforcing your constitutional rights. Had the police officer found something in the car to justify an arrest, the question of the constitutionality of the search could be hashed out in court in a suppression motion and hearing. Bear in mind that the cop may have claimed to smell marijuana, but that doesn't mean pot is what was found. Maybe other drugs. Maybe an illegal gun. Maybe a dead body. The smell of pot claim serves to except the search from the warrant requirement, and whatever comes of the search is the basis for the subsequent arrest.
But the cop finds nothing. Nada. Zip. You are clean and, surrounded by the pieces of your brand new Maserati, free to go. What then?
This is where people get confused. That's it? Don't the cops have to, you know, do something?
No red light goes off in the backroom of the constitutional elves. Actually, there is no such backroom. There's nothing. As the cop drives away, that's the end of the encounter, unless the person chooses to take action to contest the violation of his constitutional rights, such as a §1983 claim.
The problem there, of course, is that the cop, invoking the magic words that he "smelled pot," will very likely prevail despite the fact that he found nothing. You won't make it past summary judgment. More significantly, no lawyer will take the case on contingency, meaning that you will have to pay to play, and it will prove to be an expensive longshot to even make the effort to enforce your constitutional rights.
Consider the plight of people stopped in the street in New York City under the stop & frisk program, where the most generous view is that the police take action against 12% of the people stopped. They've performed millions of stops, and a tiny fraction have resulted in people going before a judge, where they can contest what happened. The others, the millions of people stopped and searched where nothing was found, just walk away, having been violated, humiliated and treated like pond scum.
The Constitution is not a self-effectuating document. It requires someone to act upon it to challenge police conduct. Otherwise, they are words without meaning, easily thwarted by police invoking the myriad exceptions the courts have provided. And here's an even worse secret: they don't even have to use magic words unless they ultimately find something, arrest a person and want to use it as evidence in court.
They get this. Most people don't. Most people harbor a naïve belief that, despite everything they know about how the police function, there is still some thread of honesty woven through their conduct that somehow makes them behave in accordance with the Constitution.
There are some excellent videos and writings about how to best conduct oneself to properly invoke constitutional rights and to create countervailing evidence to support one's invocation. The pervasiveness of video is a huge factor in showing that police have manufactured claims and false allegations, and these go a long way in keeping police clean where in the past they could make up anything they want to and there would be no way to challenge them.
But these rights we love so dearly don't happen on their own. Someone has to make them happen. We make them happen. And if we don't, then we're left on the side of the road with our Maserati in pieces cursing. The cops have magic words, but constitutional rights aren't magic. They only happen if we make them.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/07/08/magic-words-magic-rights.aspx?ref=rss
patent lawyer personal injury personal injury attorney personal injury attorneys personal injury lawyer
Friday, July 4, 2014
A Novel Way To Try To Get The Police Off Of Your Trail
Just fleeing from the police almost never works. This gent had something else in mind. As reported by The Daytona Beach News-Journal:
A man who ran from a traffic stop made phony 9-1-1 calls to try and throw off pursuing deputies and police dogs, an arrest report shows.
Interesting idea, but doomed to fail.
Herbert Foster, 31, of Holly Hill, was charged with making false 9-1-1 calls. He was also charged with a drug offense after cocaine was found on him, resisting an officer without violence and driving with a suspended license. He was released from the Volusia County Branch Jail after posting $4,500 bail, court records show.
You can read more about it here.
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/OA8JjdruiVg/asfd-7.html
Protip: Don't Screw With Old Folks
When the unit arrived at the Macons' home, two weeks before Merien's arrest, officers had two outstanding warrants for couple's son, Derrick Macon, then 50, including one for child support. Officers insisted they be allowed into the home, William Macon said.
Because the officers did not have a search warrant, William Macon refused, he said.
William Macon, 83 years old, wasn't to be easily pushed. You gotta love tough old birds. And before anyone gets all bent out of shape about his "derelict" deadbeat son, it turns out that while the team knew all about the outstanding warrants for child support, they somehow missed the order holding that he wasn't the father of the child. But let's not have facts impair a good story.
When the deputies saw Merien drive up to the back of the home, they approached with guns drawn — one pointed at her head as she sat in the car — and pressed her about her son's whereabouts, according to the lawsuit.
"I was really surprised when they walked up with their guns," Merien Macon, a retired clerical worker, said last week. "I was scared. I was shocked. I was surprised."
Macon, who had dropped off her son earlier, told them she didn't know where he was and she did not want to answer questions, [Macon's lawyer, Elizabeth] Kaveny said.
And so the deputies, duly chastised by their overly violent conduct frightening a nice old woman, apologized profusely and left her in peace outraged by her refusal to do as they commanded, decided to teach an old woman a lesson.
At that point, Merien Macon became upset and told the officers she would not speak to them. The officers handcuffed, frisked and arrested Merien Macon on a charge of obstruction of justice.
The officers then took her to a nearby parking lot, where they gave her a phone and told her to call her son and find out where he was.
Merien's husband, William, a retired electrician, called that "a hostage situation," attempting to trade off his wife for his son. The sheriff's office claimed that was not at all the case, and they were just being thoughtful.
The sheriff's office denied attempting to pressure Macon to call her son and said she was moved to the parking lot because her husband had become upset and neighbors were starting to gather.
They didn't want to upset old William by forcing him to watch her cuffed, frisked and with guns pointed at his wife's head. A very sensitive gesture in law enforcement, likely to win a medal at some point.
The Macons sued for what was done to Merien.
Merien Macon was charged with felony obstruction of justice, leading her to file a lawsuit against Sheriff Tom Dart and the officers involved. A Cook County jury recently sided with her, awarding Macon $327,500 and agreeing with her husband that what happened that afternoon went too far.
Frankly, that's a very healthy award, give that most plaintiffs in her situation could hope for a fraction of that at best. But then, picture a jury hearing the testimony in this case, looking at the 77-year-old woman and her loving 83-year-old husband, and pondering the cuffs on her wrists, the hands on her body, the gun at her head, all over a mistaken child support warrant. It doesn't get more sympathetic than this.
"I've seen this type of thing over and over and over," William Macon said. "But when it happens to you it becomes more personal."
Truth. Unless you happen to be knowledgeable about your rights, have the guts to assert them with a gun pointed at your head and, purely by happenstance, a couple of cool codgers, chances aren't good you would end up with a verdict of this magnitude. This makes it an exceptionally good reason to both applaud the Macons, and to care a whole lot about when things like this happen "over and over and over." Because next time it could be you, and it will, without question, become "more personal."
H/T Spencer Neal
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/07/13/protip-dont-screw-with-old-folks.aspx?ref=rss
family lawyer federal attorney financial lawyer find a lawyer find an attorney
UN estimates 2,417 Iraq casualties in June
Source: http://jurist.org/paperchase/2014/07/un-estimates-2417-iraq-casualties-in-june.php
Victory for former NFL players as league removes cap on damages for concussion claims (Florida Times-Union)
Applying Lean Startup Principles to a Law Firm
Lean Startup is a trial and error based business model in which a startup company makes small, specific assumptions and does vigorous testing on the results rather than depending on a big picture business plan. On this episode of The Un-Billable Hour, Christopher T. Anderson interviews Malouf about the benefits and difficulties of applying Lean Startup to law firms. New law firms can benefit by limiting wasted money, efforts, and time by truly sampling what clients might want and eliminating unnecessary services according to direct feedback. However, there may be challenges in ethical statutes surrounding lack of certain services and the ability to be transparent with clients.
Scott Malouf is an attorney who helps other attorneys turn texts, social media, and web-based information into evidence and advises in social media risk reduction. He has extensive insight into the best practices for startups, challenges that may arise, and examples of how he has personally applied Lean to his practice. He writes the Social Media Law column for the New York Daily Record and can be found on Twitter @scottmalouf.
Stick around to the end for details on how you can learn more about Lean Startup.
Busted For Going On Facebook?
Yes, this man was busted for going on Facebook, as he should have been. As reported by North Country Now (Potsdam, New York):
A Norwood man was arrested for allegedly contacting a female via Facebook who had an order of protection against him, according to St. Lawrence County sheriff’s deputies.
Matthew J. Allen, 27, was charged with second-degree criminal contempt, officers said.
He was arraigned in Norfolk Town Court and released on his own recognizance, deputies said.
Time to move on, jack. Let the lady be. Here’s the source.
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/LNqbH7yVzFY/adfs-3.html
patent lawyer personal injury personal injury attorney personal injury attorneys personal injury lawyer
Woman Charged In Denver With Seeking To Aid Islamic Extremists
Shannon Maureen Conley was arrested in April as she boarded a flight that would have ultimately landed her in Syria, where she hoped to wage jihad alongside ISIS rebels.
NY Court Strikes Down Cyberbullying Law
Source: http://blogs.wsj.com/law/2014/07/01/ny-court-strikes-down-cyberbullying-law/?mod=WSJBlog
criminal injury lawyers criminal justice lawyer criminal law criminal law cases criminal laws
Thursday, July 3, 2014
Wisconsin public employee collective bargaining statute amendments declared unconstitutional
A teachers' union sought declarative and injunctive relief against the governor, claiming that statutory amendments dealing with municipal employees' collective bargaining rights and payroll deductions of dues and pension contributions were unconstitutional.
The trial court declared the statute unconstitutional. Madison Teachers v. Walker (Wisconsin Circuit Ct 09/14/2012)
(1) Certain portions of the statute violated the free speech clauses of the Wisconsin and US constitutions. Although there is no constitutional right to collective bargaining, the statute imposes burdens on the speech and associational rights of employees represented by unions which burdens are not imposed on other employees. They cannot negotiate wage increases greater than the cost of living, they cannot pay dues by payroll deductions solely because the dues go to labor organizations. A ban on fair share agreements means that union members bear the cost of bargaining for non-members who receive the befits of bargaining. Requiring unions to be recertified annually burdens members with the full costs of the election.
(2) The trial court applied strict scrutiny to the equal protection claims because of the infringement on speech rights. The statute creates two classes of employees (represented and non-represented), and the defendants "offer no defense of the statute that would survive strict scrutiny."
(3) Certain portions of the statute violated the Wisconsin constitution's home rule amendment, violated the constitutional bar on impairment of contracts, and deprived employees of property without due process.
Source: http://www.lawmemo.com/blog/2012/09/wisconsin_publi.html
personal injury personal injury attorney personal injury attorneys personal injury lawyer personal injury lawyers
Civility?
The conduct of lawyers, not just litigators, continues to go “south.” Why is this? Have the teachings of our mothers and fathers gone unheeded? Or, in this more litigious world, and the greater incidence of divorce (most of which is with great conflict), do manners, good taste and just plain “niceness” go out the window?
For many years, bar associations have been wringing their hands over how to improve the reputation of the legal community. Clearly, the lack of civil behavior does nothing to enhance our profession’s reputation or regard from among the lay public.
Recently, the State Bar of California modified the lawyer’s oath of office. It is a court rule (9.4), not a rule of professional conduct. And, there does not seem to be any consequences to a violation of the new oath that does not already exist with the judge in a given matter. The language, specifically, includes the words “dignity, courtesy and integrity.” As it stands now, this seems to be a subjective standard and does not increase the power of the court to impose sanctions on any lawyer activity.
When California Chrome did not win the Belmont Stakes this last weekend, its owner went berserk and complained that the race was not fair. He suggested that all horses run under the same rules. In other words, any horse eligible for the Triple Crown should be run in all three races, the Kentucky Derby, the the Preakness and the Belmont Stakes. Taken in the abstract, his criticism might be correct. The point, however, is where and how he said it. In other words, he didn’t play by the “rules” of genteel civility.
There may be other reasons why California Chrome did not win at Belmont. One such reason is that he appears to have stumbled coming out of the gate, injuring himself; another, his post position was not to the liking of his team. Whatever other reasons there may be, the ultimate conclusion is that California Chrome ran three races to the single race of the winner of Belmont. The words of the owner will be an asterisk or afterthought to the history of this horse. And, if the rules of horse racing are modified in the future, perhaps his outburst was appropriate.
When lawyers are uncivil, or lack civility, in dealing with one another, no one receives a benefit. Lack of civility is not seen as a strength, but merely as an annoyance. Civility does not make one weak. Nor, in most instances, do our clients appreciate the added expense that oftentimes results from having to overcome one’s adversaries’ lack of civility. Yes, there is a difference between horse racing and the practice of law. But, in both scenarios, as my mother used to say, “one can get more with honey than with vinegar.” Equally important for lawyers, our clients do not believe this is better lawyering. On the contrary, they tend to disrespect us for not being civil and causing them increased expense.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/UdlDzUCR5pU/
Supreme Court rules home health care workers not required to pay union fees
getting power of attorney government lawyer green card lawyer immigration attorney immigration law
The FBI’s Massive Facial Recognition Database: Privacy Implications
Jennifer Lynch is a senior staff attorney with the Electronic Frontier Foundation, a non-profit organization dedicated to defending civil liberties in the digital world. At EFF, Jennifer works on privacy issues in new technologies such as biometrics, domestic drones, and location tracking devices. She successfully sued the Federal Aviation Administration and Customs and Border Protection to obtain thousands of pages of previously unpublished drone records and has testified about facial recognition and its Fourth Amendment implications before the Senate Subcommittee on Privacy, Technology and the Law.
Special thanks to our sponsor, Digital WarRoom.
Ruling Limits Defunct Law Firms’ Claims to Unfinished Business
The unanimous decision by the New York Court of Appeals, released Tuesday, roundly rejects arguments brought by those unwinding the law firms Coudert Brothers LLP and Thelen LLP , who have long insisted the so-called unfinished business doctrine gives them authority to claw back money earned on pending legal matters for the benefit of creditors.
legal news legal services lemon law letter of attorney litigation attorney
Novartis Loses Home-State Advantage on Drugs Claim
Source: http://www.nationallawjournal.com/id=1202637622472?rss=rss_nlj
French Bank To Pay $8.83 Billion In Sanctions Probe
BNP Paribas pleaded guilty to violating U.S. sanctions law. It admitted that it helped clients in Sudan and other countries evade U.S. trade embargoes through its New York office.
divorce lawyer divorce lawyers download power of attorney dui attorney dui lawyer
Wednesday, July 2, 2014
Eric Turkewitz on Legal Blogging
This Week on Legal Talk Network (6/23/2014)
So tune in. It's all right here . . . This Week on Legal Talk Network.
Source: http://traffic.libsyn.com/sr/This_Week_on_LTN_Pilot_6-23.mp3
free lawyer advice free lawyer consultation free lawyer consultation california free lawyers free legal advice
Sidley Austin Looks to Riverbed to Build a Broader Network
Source: http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1202473966828&rss=rss_ltn
Greece v. Galloway: Prayer in Government Assemblies
Professor Douglas Laycock is a Robert E. Scott Distinguished Professor of Law Professor of Religious Studies at University of Virginia School of Law and one of the nation's leading authorities on the law of religious liberty. In addition to teaching for over 30 years, Professor Laycock has testified frequently before Congress and has argued many cases in the courts, including the U.S. Supreme Court. Professor Laycock is an accomplished author on the subject at hand and the 2nd Vice President of the American Law Institute. Especially pertinent to today's episode, Professor Laycock argued for Susan Galloway and Linda Stephens, the respondents, in the Supreme Court.
David Cortman serves as senior counsel and vice-president of Religious Liberty with Alliance Defending Freedom at its Atlanta Regional Service Center in Georgia. He also heads litigation efforts to defend and reclaim the First Amendment rights of public school students across the country. Among his many media appearances, Mr. Cortman has been on CNN, MSNBC, and Fox News. Especially pertinent to today's episode, he served as counsel for the Town of Greece, the petitioner, in the Supreme Court.
Special thanks to our sponsor, Clio.
private lawyer pro bono lawyers probate attorney real estate attorney real estate lawyer
Magic Words, Magic Rights
Or does the 4th Amendment REALLY vanish with those magic words?
I've been stopped and the cop claimed he smelled pot, when, at the time, I hadn't touched the stuff in years. I told him I'd consent to a search if he apologized for wasting both of our time when he didn't find anything. He searched, didn't find anything, and I was on my way without an apology and a "verbal warning" to fix my tail light
Do you ask for another officer's opinion?
Do you tell the officer "bullshit"?
I'm just trying to help some people know what to do in this situation.
Initially, it helps for have a basic understanding of the law as it currently exists. When a cop says he "smells pot," he is invoking the automobile exception to the warrant requirement, which is based on exigent circumstances. Since a person can drive away, and thereby evade arrest and seizure of evidence of a crime in a car, the Supreme Court crafted the exception fin Carroll v. United States, a 1925 opinion about bootleggers getting away from the revenuers, which has done more harm to the 4th Amendment than perhaps any other case.
Since smell can't be captured and bottled for later presentation to a judge, the only "proof" of what an officer smelled is the officer's testimony. If he says so, it becomes real, and that's why they are magic words. Other than proving impossibility or incredibility, there is essentially nothing that can be done to challenge what the cop says he smelled. More importantly, even if a subsequent search turns up no pot, that doesn't mean he didn't smell what he smelled. The officer will testify about his training and experience in smelling pot, and yet he can be mistaken. The law doesn't require the cop to be right.
But the discussion thread about the magic words is where a grave misunderstanding about the system becomes clear. The problem derives from the absence of any marijuana in the car. The cop says he smelled it. This gives rise to probable cause to search and the automobile exception allows the cop to do so without a warrant. A search follows, and it can be as intrusive as the cop chooses to make it. By intrusive, it can include dismantling your brand new Maserati into a million pieces on the side of the road and, when it's over, leaving it there.
So the cop smells pot, searches and comes up empty. No apology. No help putting your Maserati back together. He drives away without so much as a tip o' the hat. This is where people don't seem to understand how constitutional rights work.
There are no elves in the backroom enforcing your constitutional rights. Had the police officer found something in the car to justify an arrest, the question of the constitutionality of the search could be hashed out in court in a suppression motion and hearing. Bear in mind that the cop may have claimed to smell marijuana, but that doesn't mean pot is what was found. Maybe other drugs. Maybe an illegal gun. Maybe a dead body. The smell of pot claim serves to except the search from the warrant requirement, and whatever comes of the search is the basis for the subsequent arrest.
But the cop finds nothing. Nada. Zip. You are clean and, surrounded by the pieces of your brand new Maserati, free to go. What then?
This is where people get confused. That's it? Don't the cops have to, you know, do something?
No red light goes off in the backroom of the constitutional elves. Actually, there is no such backroom. There's nothing. As the cop drives away, that's the end of the encounter, unless the person chooses to take action to contest the violation of his constitutional rights, such as a §1983 claim.
The problem there, of course, is that the cop, invoking the magic words that he "smelled pot," will very likely prevail despite the fact that he found nothing. You won't make it past summary judgment. More significantly, no lawyer will take the case on contingency, meaning that you will have to pay to play, and it will prove to be an expensive longshot to even make the effort to enforce your constitutional rights.
Consider the plight of people stopped in the street in New York City under the stop & frisk program, where the most generous view is that the police take action against 12% of the people stopped. They've performed millions of stops, and a tiny fraction have resulted in people going before a judge, where they can contest what happened. The others, the millions of people stopped and searched where nothing was found, just walk away, having been violated, humiliated and treated like pond scum.
The Constitution is not a self-effectuating document. It requires someone to act upon it to challenge police conduct. Otherwise, they are words without meaning, easily thwarted by police invoking the myriad exceptions the courts have provided. And here's an even worse secret: they don't even have to use magic words unless they ultimately find something, arrest a person and want to use it as evidence in court.
They get this. Most people don't. Most people harbor a naïve belief that, despite everything they know about how the police function, there is still some thread of honesty woven through their conduct that somehow makes them behave in accordance with the Constitution.
There are some excellent videos and writings about how to best conduct oneself to properly invoke constitutional rights and to create countervailing evidence to support one's invocation. The pervasiveness of video is a huge factor in showing that police have manufactured claims and false allegations, and these go a long way in keeping police clean where in the past they could make up anything they want to and there would be no way to challenge them.
But these rights we love so dearly don't happen on their own. Someone has to make them happen. We make them happen. And if we don't, then we're left on the side of the road with our Maserati in pieces cursing. The cops have magic words, but constitutional rights aren't magic. They only happen if we make them.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/07/08/magic-words-magic-rights.aspx?ref=rss
Influx Of Children Creates New Strain On Beleaguered Immigration Courts
Tens of thousands of Central American children have been detained this year crossing the U.S.-Mexico border. Many will now enter a legal system where cases can take 18 months or longer to resolve.
legal advice online legal aid legal aid eugene oregon legal aid society legal counsel
Presentation Tips for Legal Professionals
Special Needs Trusts or Pooled Special Needs Trusts
Tuesday, July 1, 2014
U.S. Court: Mexican Teen Killed By Border Patrol Had Rights
The appeals court ruled that the teenager shot and killed on U.S. soil can claim constitutional protection. The ruling reverses part of a lower court decision in a lawsuit filed by the boy's family.
H-P Working to Settle Lawsuits Related to Disastrous Deal
injury lawers injury lawyer injury lawyers international law international law schools
Presentation Tips for Legal Professionals
Nurse Has Sovereign Immunity
Source: http://valawyersweekly.com/2014/01/02/nurse-has-sovereign-immunity/
When it comes to America's waterways, we have proven repeatedly that we can't wait ... to make costly mistakes (Florida Times-Union)
NLRB's recent significant decisions
The NLRB this week made public a number of significant decisions, most reached in the final days of the term of Member Brian Hayes, which ended on December 16. The Board continues with three members, Chairman Mark Gaston Pearce and Members Richard F. Griffin, Jr. and Sharon Block.
The decisions touch on a variety of issues including social media postings, charter school jurisdiction, backpay awards, the chargeability of certain union lobbying expenses, and an employer’s responsibility to continue dues collection after the expiration of a contract.
Hispanics United of Buffalo
The Board found that the employer unlawfully fired five employees because of their Facebook posts and comments about a coworker who intended to complain to management about their work performance. In its analysis, the Board majority applied settled Board law to the new world of social media, finding that the Facebook conversation was concerted activity and was protected by the National Labor Relations Act. Member Hayes dissented.
Alan Ritchey, Inc.
In a unanimous decision that resolved the last of the two-member cases returned following the 2010 Supreme Court decision in New Process Steel, the Board found that where there is no collectively-bargained grievance-arbitration system in place, employers generally must give the union notice and an opportunity to bargain before imposing discipline such as a discharge or suspension on employees. Member Hayes was recused.
Latino Express
In a decision that will affect most cases in which backpay is awarded, the Board decided to require respondents to compensate employees for any extra taxes they have to pay as a result of receiving the backpay in a lump sum. The Board will also require an employer ordered to pay back wages to file with the Social Security Administration a report allocating the back wages to the years in which they were or would have been earned. The Board requested briefs in this case in July 2012. Member Hayes did not participate in the case.
Chicago Mathematics & Science Academy
Rejecting the position of a teachers’ union, the Board found that it had jurisdiction over an Illinois non-profit corporation that operates a public charter school in Chicago. The non-profit was not the sort of government entity exempt from the National Labor Relations Act, the Board majority concluded, and there was no reason for the Board to decline jurisdiction. Member Hayes dissented in part.
United Nurses & Allied Professionals (Kent Hospital)
The Board, with Member Hayes dissenting, addressed several issues involving the rights of nonmember dues objectors under the Supreme Court’s Beck decision. On the main issue, the majority held that, like all other union expenses, lobbying expenses are chargeable to objectors, to the extent that they are germane to collective bargaining, contract administration, or grievance adjustment. The Board invited further briefing from interested parties on the how it should define and apply the germaneness standard in the context of lobbying activities.
WKYC-TV, Gannet Co.
Applying the general rule against unilateral employer changes in terms and conditions of employment, the Board found that an employer’s obligation to collect union dues under a check-off agreement will continue after the contract expires and before a bargaining impasse occurs or a new contract is reached. Member Hayes dissented.
Source: http://www.lawmemo.com/blog/2012/12/nlrbs_recent_si.html
All Zimmerman or All Trayvon Martin
Now that the trial is coming to a close, however, an interesting question, both legal and tactical, has arisen: would it be best for the defense to take an all-or-nothing approach, murder 2º or acquittal, or a split-the-baby approach, charging the jury on the lesser-included crime of manslaughter.
As Jacob Gershman writes at the Wall Street Journal law blog, the die has been cast.
Notwithstanding what either party individually contends, it remains the judge's responsibility to decide whether to submit a lesser-included offense to the jury if one party requests it. So if the prosecution felt sufficiently secure in its case that it would get a murder conviction, while the defense feared conviction and was looking to find an out, they would be fighting against a manslaughter instruction lest the jury, feeling any sympathy toward the defendant, compromise. That's not happening here.George Zimmerman was charged with second-degree murder in the shooting death of Trayvon Martin. So why do jurors now have an option of convicting him of manslaughter?
The short answer: the judge said they could.
Yet the option, which was supported by prosecutors but raised the hackles of the defense, is not clearly spelled out in Florida law.
While it may be that Zimmerman's claim of self-defense, that he feared his life to be so endangered as to allow him to lawfully kill another person, isn't entirely persuasive, there is strong support for his claim that he was in fear, even if he overreacted.
Florida law works differently. There’s no slicing and dicing of self-defense. The penal code doesn’t recognize “imperfect self defense.” The law forces juries to either believe that someone had a right to act in self-defense or is a murderer.
There is a loophole, however, as illustrated by Mr. Zimmerman’s trial, which entered into closing arguments Thursday.
In Florida, a judge can choose to give juries a middle-of-the-road option, saying it can convict someone of voluntary manslaughter if it isn’t convinced that the defendant acted out of “ill will, hatred, spite, or evil intent.” Voluntary manslaughter is a catch-all offense that includes a killing caused by “culpable negligence.”
That the prosecution chose to shoot low and hope for a compromise rather than a murder conviction, while the defense went for all-or-nothing and fought the lesser charge, reflects their view of the relative strength of their case. Not surprisingly, the prosecution is showing some serious weakness in its faith that its murder 2 charge will bear out.
As John Steele argued before trial, there is a strong current of thought that the prosecution followed a political path, appeasing angry voices demanding Justice for Trayvon without giving the facts of the case much thought. It appears that the trial evidence has borne this out to a large extent.
But most damning is the prosecution's second request of Judge Debra Nelson.
So a reduced charge of manslaughter still isn't sufficient for the prosecution to reach its comfort zone, and it's digging even deeper for an even lesser charge of murder 3º. Not only is that damning and humiliating, but as West says, it's "outrageous." What's next, trespassing because Zimmerman walked on somebody else's lawn?Prosecutor Richard Mantei argued that instructions for third-degree murder should be included on the premise that Zimmerman committed child abuse when he fatally shot 17-year-old Trayvon Martin because Martin was underage.
But defense attorney Don West called the proposed instruction "a trick," and he accused the prosecutor of springing it on the defense at the last minute.
"Just when I didn't think this case could get any more bizarre, the state is alleging child abuse?" West said. "This is outrageous. It's outrageous the state would seek to do this at this time."
It appears that while the judge hasn't tossed the murder 2º count as being legally insufficient, which would seem to address the ethical question of the charge being within the very large ballpark of reasonable charges under the facts of the case, neither the judge nor the prosecution has much faith that the jury will convict. The prosecution is now grasping at straws, hoping to get a conviction for anything it can.
For the defense, given the evidence that's come in, this isn't a good thing or particularly fair thing. They tried a case to the charge, and are now faced with the possibility of a compromise verdict from a jury that might feel badly enough at the death of a young man (which is quite understandable, regardless of whether he contributed to it) to feel that Zimmerman ought to be convicted of something.
While this isn't the way it's supposed to go in theory, it's a nightmare for the defense, having fought the charge only to face being skewered by a compromise.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/07/12/all-zimmerman-or-all-trayvon-martin-2.aspx?ref=rss
personal injury attorney personal injury attorneys personal injury lawyer personal injury lawyers power attorney