Articles Posted in Legal News / Legal Information

Harry Truman never completed law school but he did attend for two years. He lived a few miles from Kansas City, which recently became renown in the history of lawyers and lawyer jokes. It all began on April 14^th when legal secretary Monica Hastings opened her boss’s office and was greeted by a

Source: wgnradio.com

Turkey…an “involuntary intruder” as she reported it to her boss, lawyer Jeffrey Tonkin. She reported to a local news station “I opened up the door and I saw a little turkey tail go past his desk”. The “intruder” Turkey left a hole in Tonkin’s window when it was, by current police suspicion, propelled into the office through a glass window by “unknown and unseen forces.” This challenges the popular belief that Turkeys’ can’t fly. But perhaps the bird needed legal representation and wanted to talk turkey with the lawyer and entered after hours for a discount. Now displaying his practice as “ a Turkey At Law” local lawyers are trying to capitalize on a new area of constitutional law protecting Turkey’s travel and air rights. More to come in future postings…..

Source: ABA Journal

Real Housewives of Beverly Hills star Kim Richards was arrested in California in the Beverly Hills Hotel and charged with trespassing, public intoxication and resisting an officer and battery on an officer.  Early morning Thursday, April 16, 2015 Kim Richards was arrested on the grounds of the Beverly Hills Hotel. Reportedly, the staff contacted the Beverly Hills Police reporting a “possible fight” and “an intoxicated female causing a disturbance” in an on site restaurant, most likely the posh and very famous Polo Lounge.

Source: EOnline.com

According to the police report, Kim Richards, the Real Housewives of Beverly Hills starlet was in the process of being escorted off the property of the hotel when she asked for a detour to use a bathroom before she left. Once in the loo, she refused to leave and the police entered the bathroom to take her into custody. The police report continues: “Ms Richards was displaying symptoms of alcohol intoxication including slurred speech and belligerent insolent behavior cursing at the offices and passively resisting arrest.” Once off to jail it was reported she kicked an officer in the leg. Kim Richards was released at 10:30 the next morning and issued a notice to appear citation requiring her to appear before the Los Angeles County Superior Court on May 10th, 2015.

Co-Star, Dr. Paul Nassif, reportedly told BravoTV.com that Kim Richard’s behavior was the result of a combination of medications that Ms. Richard’s had been properly prescribed, but had the effect of causing her to appear intoxicated, and, reportedly, alcohol was not involved. Below is some tweet activity from cast mates on the very popular real life show:

Lisa Rinna: “I was sad to hear about Kim’s incident and I wish her and her family the best.”

Lisa Vanderpump: “U can’t help somebody til they want to help themselves,I know for sure that the sisters will always support each other when the time comes.”

Brandi Glanville: “Real friends are their in the good times, the bad times &especially the worst times. I am blessed with real friends & am a real friend myself.”

Eileen Davis: “I feel badly for Kim Richards and her family my thoughts and prayers are with them during this difficult time.”

According to RadarOnline.com, Kim’s sister Kyle is still refusing to speak to her following their “RHOBH” reunion blowup.

April 6, 2015 marks the closing arguments in the Boston Bomber case being played out in Federal court in Boston. The Federal criminal trial of Mr. Dzhokhar Tsarnaev, the sole survivor of the pair that is accused of planning, preparing and detonating an anti-personnel destructive device at the finish line at the 2013 Boston Marathon, is at its finish this week.

Survivors and family members heard the Assistant United States Attorney, Mr. Chkravarty, make his closing arguments. His remarks described a deliberate and well planned attack in retaliation for the perceived harm the two men endured as a result of the U.S. led military actions in Iraq and Afghanistan. The second man, Tamerlan Tsarnaev was killed during his escape.

Some of the Assistant United State’s Attorneys closing remarks are as follows: “The evidence here speaks for itself,” he said Immediately after that he showed to the jury several still images and a video of the victims before the bomb was detonated. He went on to say the the Tsarnaev brothers knowingly and intentionally targeted innocent civilians including children. Mr. Chakravarty walked over to Mr. Tsarnaev and said while pointing at him, “He thought his values were more important than anyone else’s.”

Most commentators and observers of the trial agree that the jury can and will convict. There are a total of thirty counts in the Federal criminal indictment. The total number of victims killed is three and 264 people were wounded. The lead prosecutor, Assistant United States Attorney William Weinreb went to great lengths to emphasize that the two brothers were equal partners in their crimes and the law holds them equally liable. The defense attorneys during the trial argued that the surviving brother, Dzhokhar, was duped and brought into the conspiracy by submitting to his brother’s overwhelming willpower. The prosecutor’s case took over fifteen days of testimony from ninety-two witnesses. The prosecutors case opened with images of the gruesome death of an eight year old child who was watching the finish line of the Boston marathon with his parents. The defense called four witnesses and took a little more than five hours. Defense attorney Clark emphasized in her opening and closing that the dead brother was the driving force and the planner and initiator of all the acts, from the planning to the construction of the bomb.

Today in Alaska, an amendment permitting recreational marijuana use goes into effect. In November, 2014, the citizens of Alaska in a statewide vote to amend the Alaska constitution voted 53% for and 47% against this amendment. The vote, a majority, prevailed and the new amendment became fundamental law for Alaska. This makes Alaska the third state in the United States to legalize recreational use of marijuana.  The new status of marijuana makes it legal for people over the age of twenty-one to consume personal use amounts of cannabis. It is still illegal to sell marijuana and illegal to purchase marijuana.  Read the full text of the amendment here.

Prior to the Alaska amendment, Washington and Colorado were the only states permitting recreational use of marijuana. Medical use is different and requires a bona fide medical need before it can be dispensed. Alaska now must implement the amendment and deal with the issues of public consumption, intoxication, and removing criminal sanctions for possession and use of marijuana.

The initiative in Alaska left many issues to be resolved. For example, the initiative and amendment does not permit smoking marijuana in public. Smoking in public does not deal with the consumption by other means in public, such as drinking fluids containing marijuana and cannabis extracts. Nor does it deal with eating consumables containing cannabis.  The City of Anchorage, Alaska, has an ordinance punishable by a fine of one hundred dollars if cannabis is smoked in public, but no definition of what the word public means. Reportedly, police in Anchorage are ready to issue citations, but the officers have not been instructed on what constitutes a violation of the city ordinance. Alaskan lawmakers have to define the scope of permitted consumption and any criminal violations which involve the abuse of the right to consume marijuana. The State board regulating alcohol has been delegated authority to regulate but the empowering statute under administrative law is open to interpretation and challenge, and so most of these issues will be resolved in proposed legislation and in criminal courts.

A larger question remains as to federal criminal law and their enforcement in states such as Colorado, Washington and now Alaska. Federal criminal law clearly identifies cannabis as a controlled substance, and federal laws regulate all controlled substances.  The possession, sale and transportation of marijuana is a crime under federal law. States cannot overrule federal laws and the conflict creates very real problems. For example, can a resident of Alaska purchase recreational marijuana using a credit card without exposing the credit card company to criminal charges?  If one writes a check, and thereby uses interstate commerce banking channels, is the bank subject to criminal prosecution for processing a check? If one mails marijuana within Alaska, or uses a commercial shipper such as FedEx, does that expose the carrier to arrest and prosecution under federal law? The answer is clearly YES. The question is whether or not the U.S. Attorney will prosecute under federal law, and that is a policy and political question for the federal government to resolve.

The Obama administration  has announced that it is expanding the Center for Strategic Counterterrorism Communications efforts to “countermessage” terrorists groups. Propaganda has a long history of use as a governmental tool to enlist public support and oppose groups that disagree with State policies.

The Obama administration has not put forward a legal basis for the use of the internet as an extension of the War Powers Act. In fact, the Obama administration has not stated any legal basis for the use of government speech to obstruct ISIS and other extremist groups from their use of the internet to recruit.   There has been little or no attention to the legal basis upon which the Obama administration is using, and now expanding, governmental presence on internet media, from Tweets, and Facebook to internet chat rooms.

Source: www.theguardian.com

In an article in the New York Times (dated February 16, 2015), it was reported that the Executive Branch is expanding  funding for ‘countermessaging’ recruitment by groups the government considers terrorist enterprises. At the center of the funding is a governmental agency The Center for Strategic Counterterrorism Communication, currently run by Alberto Fernandez, a career foreign service officer and Middle East expert. Mr. Fernandez has announced his retirement and will be replaced by Rashad Hussain, a Muslim-American with reported close ties to the Obama Administration. Funding, currently at five million dollars annually, soon will be increased significantly.   Reportedly the current 350 Twitter accounts used to moderate and infiltrate the “terrorist community” will be expanded. The new plan, it has been announced, will use “digital outreach teams” in an “Information Coordination Cell” to mitigate extremist violence.

The Administration  has stated that “We’re getting beaten on volume” and that to compete with the enlistment efforts of terrorist groups the government will expand exponentially governmental presence in Internet media. The government’s decision to increase funding and expand the use of internet channels and media to influence the enlistment efforts of Muslim extremists is reportedly tied to and a response to, the shootings in France and most recently in Copenhagen.

Administration officials said a recent conference on effective use of social media to blunt extremists as the prompt to the expanded use by the Obama Administration. What has not been reported  is a legal basis for the federal government to use social media as an arm of the executive branch’s powers to act in matters of foreign policy. The issue is not whether it is an effective method to counter the use of social media by extremists groups. The issue is the use of social media by the government to advance policy goals. Policy goals are just that, policy goals and not governmental powers.   As important as it may be in the public arena for the government to effectively respond to domestic and international acts of terrorism against civilians, the lawful exercise of governmental actions to use propaganda as an extension of war powers must be questioned. That the constitution empowers the federal government to field armies in times of war does not empower governments to influence the process of public debate.

This past Monday, the U.S. Supreme Court ruled, in an 8-1 decision, that now it’s possible for a police officer to stop your car based on a mistaken understanding of the law without violating the Fourth Amendment.  Now watered down by Heien v. North Carolina, the Fourth Amendment to the U.S. Constitution requires police to meet a reasonableness standard, before a search can be made of your person or property. The Fourth Amendment prohibits unreasonable searches and seizures. Until this case, the police could not search your person or your car if they are mistaken on the law. Now the Supreme Court has said that a mistake of law by the police can make an otherwise unconstitutional search a lawful search.

North Carolina law only requires vehicles to have one working stop lamp. Until this Supreme Court decision, a police stop and search based on a single non-working tail-lamp was prohibited. No more. Justice Roberts, writing for the U.S. Supreme Court wrote: “In this case, an officer stopped a vehicle because one of its two brake lights was out, but a court later determined that a single working brake light was all the law required. The question presented is whether such a mistake of law can nonetheless give rise to the reasonable suspicion necessary to uphold the seizure under the Fourth Amendment. We hold that it can.” 

This extends the “mistake of fact” exemption. For a real life example of an excusable mistake of fact that made an otherwise unlawful police stop lawful consider this: Assume you are driving in a High Occupancy Lane (HOV), and in your car are two (required) passengers, but they are sleeping out-of-view in the backseat and unseen.  In this situation, an officer may make a lawful stop. The mistake in fact was that the officer, not seeing the two rear passengers asleep on their sides, believed that your car was in the HOV lane without the required passengers. The stop is lawful, the mistake in fact was reasonable. Now, under the recent U.S. Supreme Court decision, if the officer makes a reasonable mistake of law the stop can be lawful.

Now, if a judge can be convinced that there was a reasonable mistake of law by an officer, the stop and search are lawful.  Here are the facts of Heien v. North Carolina and you decide: Early in the morning hours of April 29, 2009, an officer (sheriff) in North Carolina saw a car driving north on Interstate 77. Testifying that he (the sheriff) believed the driver was “stiff and nervous,” followed him in his marked patrol car.  A few miles passed and the driver stepped on his brake.  The sheriff saw only one working brake lamp and pulled the car over.  The stop uncovered cocaine in a plastic bag in the rear of the car. The driver was arrested and charged with trafficking in cocaine. There was no ticket for driving with a broken stop lamp because it is lawful to operate a car in North Carolina with such a defect.  The North Carolina Supreme Court upon hearing the facts determined that the stop was without legal cause and that there was no violation of law so there was no legal reason to stop the car.

Here is the tension in the law now: The U.S. Supreme Court does not permit citizens to escape criminal liability even if their mistake of law was reasonable. Lack of knowledge of the law is not an excuse to violate the law.  Now, however, that rule does not apply to the police.  The new rule of law permits the police to make reasonable mistakes of law when making a search and for the mistake to be overlooked.

Rarely imposed since the 1940’s, quarantines are both: 1) Creatures of law, subject to constitutional muster and 2) Public health policy; based on the best current state of medical science: its understanding of the process by which infection works in its biological host, and the methods of transmission of communicable disease organisms.

The issue has been in the news because Ebola, emanating from Western Africa, may be communicated by infected persons traveling to the United States. Ebola as a disease does not have the virulence and infection rates of other viruses…but the next communicable disease may. SARS came, but was tamped down, the next disease may be more difficult to control or may spread faster than current control standards can effectively restrain transmission.

Source: www.businessweek.com

Lawrence Gostin has been doing good work in assembling the law on the question of law and quarantine. Teaching at Georgetown University, he has reviewed what Governor Christi did in New Jersey. The legal questions in any analysis are: 1) Rules of class designation; and, 2) Fairness in individual risk assessment. The law, as it stands, first addresses whether the designated members of the class, subject to quarantine,  comply with Due Process standards of reasonableness. Secondly, the law requires that those members of the class have adequate access to the courts to determine if their individual facts, their “individualized risk,” is afforded judicial review.

We are speaking to the constitutional issues of Due Process and Equal Protection under the law. The legal criticism of New Jersey’s  and Maine’s rules (as they were initially propounded), are the States’ rules were over inclusive and do not have a process for individual assessment of the actual risk of infection transmission from the persons in the class. Nurse Kaci Hickox, initially tented outside a New Jersey hospital, then went to Maine,  and subsequently permitted to live in her home, brought what may be the first of a wave of legal challenges to the quarantine programs as they are currently structured. Ms. Hickox, age 33, was a volunteer nurse working with Doctors Without Borders for five weeks in western Africa. She was detained at Newark Airport under federal quarantine, then, in effect; She came under New Jersey’s recently enacted quarantine rules before going up to Maine.

A constitutional challenge can and will be asserted to two aspects of effecting quarantine. First, the statute must meet constitutional muster: Due Process and Equal Protection. Then, the administration of the program, once structured by the enabling statute, must be effected by an agency. Agencies are created to carryout legislative  programs and are subject to the rules applying to administrative law. Ask: is the agency following the statute? Ask: is agency policy authorized? Ask: are agency rules compliant with Due Process? The landmark case of Gibbons v. Ogden is a good start for more comprehensive understandings of how judges approach quarantine challenges.

Federal laws state that jurisdiction arises from Article I, Section 10 of the U.S. Constitution under which the federal government effects collection of taxes and duties on imports by right of the constitution empowerment granted to the federal government to inspect items in commerce between the U.S. and foreign states. This has been extended to tariffs and taxes and quarantine. The push back comes from the reasoning in Printz v. New York, which limits the federal government’s power to commandeer (either by physical force or statute) local and state government officials to carry out federal law. Fasten your seat belts, its going to be a rough ride.

On Friday November 7, 2014, the United States Supreme Court announced that it would “consider” a new major legal challenge to the Affordable Health Care Act.  This happened three days after voters in the United States voted in the “mid-term” election on November 4, 2014. Mid-Term because it is in the middle of the term of the President of the United States.  The balloting was for members of the United States Congress: the House of Representatives and the U.S. Senate.  The election results were regarded as a resounding victory for the Republican Party.   The Republicans gained voting control of the House of Representatives and the Senate.

The forced coincidence is not likely an indication of the Justice’s willingness to rule on the Affordable Health Care Act, but to political pundits it resounds as such.  For those who want to believe that the Justices are over anxious to gut the Affordable Health Care Act, there other unfortunate facts.  On the top of the list is the fact that there no split in decisions coming up from the Federal Courts. 

The Supreme Court, as the final arbiter of the meaning of law, is constitutionally empowered to rule when there are conflicts in lower courts or constitutional issues of great importance.  Depending on how you want to see it: either the Supreme Court feels empowered or obligated to follow the politics of Republican Party stalwarts, or, it has been unfairly placed in the light of that accusation.  You be the judge.  But the Court has agreed to hear a case about how the Health Care Act is provided funding from a tax on medical devices.  The case they selected comes from the U.S. Court of Appeals for the 4^th Circuit.  The Supreme Court Justices agreed to reconsider that ruling, which again looks like the judges are political operatives emboldened to do the bidding of Tea Party Republicans.

The aspect of the law that the Court has agreed to review gives them an opportunity to reverse their findings that permit the law to function.  The ruling to be reviewed concerns the Act’s system of subsidizing policies required by the law.  Subsidies are granted to Americans whose income is low.  The subsidies are not grants of free insurance, but lower premiums to those required to pay for their own policies.  More than five millions Americans are currently able to take subsidies to lower their actual out of pocket costs for  health insurance.   Those who qualify for a subsidy have their premiums costs reduced by as much as 76%, dropping the average monthly premium for those who need subsidies from $346 per month to $82 per month.   Any ruling eliminating the subsidies would constitute a major blow to the act.  If the Supreme Court reverses its previous ruling on these issues it would invalidate subsidies in thirty-six states.

Two governors, Governor Christie in New Jersey and Governor Cuomo in New York, both announced quarantine rules and were undercut by President Obama.  The legal issue is whether a president can overrule a state governor on an issue such as quarantine.  Ebola, the viral infection that has killed 4,941 people (as of November 1, 2014) in Western Africa is on the minds of U.S. citizens.

Over the past weeks, the top stories have been about Ebola deaths, like the one of Mr. Thomas Duncan (who arrived in the US with Ebola and died in an American hospital), and Governor Cuomo of New York and Governor Christie of New Jersey.   Now, alarmingly, the news is about a Doctors Without Boarders physician from New York City who is in a New York hospital after riding on the ‘A’ train in the New York City Subway system.

A recent NBC poll finds that 71% of Americans want to quarantine anyone who has contact with a population of Ebola victims and the State vs. Federal conflict is at the top of the news. The science, at this moment, indicates that Ebola can be caught only if the victim has fever and symptoms, otherwise the infection is not transmitted.

But what is the law on a State taking action, of which the Federal government does not approve. The first rule is the Preemption Rule, which is founded on the Supremacy Clause of the U.S. Constitution. Preemption starts with this: If the Federal government has a law, then the States cannot come in and overrule with a different set of laws. The legal response is that the States have the power to regulate health rules and laws within their jurisdictions. Back at ya: With the Health and Welfare Clause (aka the General Welfare Clause) which empowers the Federal government to act in the area of regulation of such matters.   Then we hear from the Tenth Amendment known as the State’s Rights Amendment. The Tenth Amendment empowers States to act when the Feds have not, which loops us back to the Preemption Rule under constitutional law.

Now the response is that when the Federal government does rule, as it seeks to in this instance with fewer restraints, the States can enter and make laws as long as they do not retreat from the Federal mandate. Think of voting rights and search and seizure laws. The U.S. Supreme Court has set the bar for what is a reasonable search and seizure, but many States have interpretations that grant greater protections: that can be acceptable under the Preemption Rules.

Then there is the politics of public perception and opinion. The 2014 mid-term elections are forecast to be a Republican win because of the public’s anger at a democratic administration that, on this issue, seems to be out of sync with 71% of Americans.  Now, if a legal challenge is brought to the U.S. Supreme Court, the Judges can pass on a ruling by finding that this is a political issue, not a legal question, and crawl behind the screen of judicial restraint and respect for a political issue that is not a legal issue.

It all comes down to asking the question in terms of rules of constitutional law. States Rights issue, or maybe it’s a Health and Welfare issue, or can we frame the legal issue under the Commerce Clause which gives the Federal government vast powers to regulate interstate commerce. Consider this: Is the spread of an infectious disease from one state to another something that has an effect on interstate commerce?  Yes. But if litigants frame this as a preemption matter…..or maybe it’s not a preemption issue because Governor Cuomo just expanded the Federal rules on what is a proper quarantine period.

The conclusion here goes to both the strength and the weakness of our form of government and the rule of law. Lawyers learn in law school that the likely winner in any legal conflict is the one who gets to frame the issue and thereby select the rules that a court will apply. Remember the old legal adage: A good lawyer knows the answers to questions, a great lawyer knows the right question to ask.

Congressional Republicans have been vocal in demanding the United States impose travel bans from African nations where Ebola infection rates are high. Travel bans have a long history of being of dubious value, and a look at travel bans imposed on HIV victims is informative.

The United States government has previously imposed travel bans to control HIV infection rates. Travel bans were imposed and required waivers for the following categories: Spouses of US citizens with HIV, unmarried sons or daughters of US citizens with HIV, minor unmarried adopted children of US citizens with HIV, parents, persons eligible to self-petition under the Violence Against Women act, and refugees seeking humanitarian exceptions. The ban was reportedly ignored to a significant extent, but many persons (without any of the waivers) were removed, deported or denied entry by U.S. Immigration authorities. In 2010, the ban was lifted, but Homeland Security in the U.S. is considering it as a framework if political pressure persist in restricting entry from infected African nations.

Any legal ban would have to provide for greater travel freedom for US citizens. The United States Constitution, the “Privileges and Immunities Clause” recognizes freedom of travel as a constitution right. These rights, however, do not apply to citizens of foreign nations. It is unclear, but generally understood, that non-US citizens with legal status in the United States are afforded such travel rights. Historically there are some exceptions: look to the “Mann Act” for restrictions on travel between states of unmarried male/female companions. Cases such as Ward v. Maryland (79 US 418) are the basis for the constitutionality of such restrictions on travel. Balancing those rights is the “health and Welfare” clause of the constitution.

The current state of the law permits the Director of the United States Center for Disease Control to impose travel bans between states (nations) to control and contain “viral hemorrhagic fevers” Ebola is such a disease. The last legal challenge to quarantine laws came in 1902 when the US Supreme Court upheld the power of individual states to impose quarantines even if the quarantine effected interstate commerce. If the US government fails to act then individual States, exercising their police powers, can effectively control or ban the travel of individuals who do not comply with State reporting laws requiring proof of disease-free status. Regardless of the arguments that travel restrictions do not work, the increasing public pressure for action is expected to put State’s rights activists in the front of moves for states, such as Texas and Florida, to impose State restrictions in the absence of federal action.