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2011 and the 4th Amendment
Happy 2011 everyone. I am not one for resolutions as why not take the year to be mindful of every action than deciding on one random day to take a few different paths that basically expire as of January 10th? In any event, let’s take a look at the 4th amendment. Why, I don’t know but it’s always nice to take a look back at the Constitution at the beginning of the year. Also, I must mention that I am not sad Brett Favre is getting sued for sexual harassment (and I just read his sister got arrested – WTF!). I am so glad the guy is getting called out. I digress. Back to the 4th amendment.
In case you have forgotten, the 4th amendment states “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
So, what happens if you are sitting at home, doing something illegal of sorts and the police bust down your door? Would you be arrested? In Kentucky, Hollis King and his friends were doing just that when it just so happened that the police were chasing another criminal and mistakenly busted down Hollis’ door. He and his friends were arrested but the Kentucky Supreme Court threw out the evidence against King ruling that the police did not have cause to bust into his house without a warrant. Was justice served? It isn’t as if King wasn’t doing anything wrong BUT, if the police wanted to bust down his door, they should have followed proper procedure. While I am all for punishment if you are doing something illegal, there is something to be said for freedom from the police just busting in your door at any point.
Or consider the case against Gregory Diaz, whose smartphone was accessed without a warrant when he was arrested on a drug charge in California. Are any incriminating texts and emails admissible as evidence against him? According to the Supreme Court, apparently so. How about if they find evidence of another other crime – such as murder or tax evasion? Sounds like we should all leave our wallets, phones and purses at home if we have anything to hide from Big Brother.
And for those of you who feel violated by the newly more molesting eyes of TSA, there’s line of underwear that’s got your back, I mean, ass. Supposedly it protects your personal areas from prying eyes by emblazoning the 4th amendment in metallic ink across key areas. Anyone interested in metallic pasties? Going once, going twice…
Lastly, let’s examine the constitutionality of strip searching a 13-year-old girl due to allegations from one of her peers that she sold them drugs, which were later determined to be Ibuprofen. The Ninth Circuit Court upheld the legality of the search, citing the existence of sufficient case law which supports the reliability of student informants. Really? Reliable 13 year old student informants? Hmmm.
Overall I think we can feel safe about the 4th amendment in this new year of 2011 but I am going to be watching out for cases that deal with these topics and will keep you posted!
I don’t look like Lindsay Lohan
In honor of people saying I look like Lindsay Lohan, I thought perhaps I would discuss her new jail sentence. I don’t follow celebrity cases that closely but this one seemed to jump out – I mean come on, everybody remembers where she played those identical twins. I can’t remember the name of the movie. Hmm. In any event, for those of you who didn’t see the news today, Ms. Lohan violated her probation stemming from a 2007 DUI charge and the judge sentenced her to 90 days in jail.
I have to say that when I watched the video of her talking to the judge that I sort of believed the whole “I was working and thought that I could do two classes one week instead of taking classes every week so that would count”. She is referring to alcohol education courses. She is an actress after all and she certainly did a good job making me believe her.
Usually I take the hard line on these kinds of issues as I think getting a DUI is the most ridiculous and irresponsible thing you can do so anything resulting from that action is an unavoidable consequence. How hard is it to attend alcohol education classes? Wasn’t your previous 84 minutes that you spent in jail some kind of indication of what things could be like (a few years ago Ms. Lohan avoided her jail time)? In this case though, I do feel kind of bad for the girl but I can’t quite place why. I guess because with certain people you wonder if putting the in jail will really do the trick. I think the better plan is for her to be in rehab, which is where she will go after she goes to jail. They say she will probably only have to serve 25% percent of her ninety day sentence but I am sure two days in jail will do the trick.
People probably think she is a spoiled brat and deserves what she is getting but I am not so sure.
Is it your responsibility to be safe?
I had an interesting comment on my post that I did about Chelsea King. The idea was that Chelsea King herself had a responsibility in her ultimate demise. There was not much information that I saw about whether Chelsea told people she was going on a run, had her cell phone with her, etc. The person commenting on my post opined that there were things that Chelsea should have/could have done to ensure her own safety. I think it is tough in these situations as it reminds of me the woman who gets raped and her friend says “Well, you had a short dress on”.
While I do think it is important for everyone to take responsibility for their own safety, I cannot place any blame on the victim in this case or most cases really. There is no tolerance for what her alleged killer did no matter what precautions Chelsea took or didn’t take. It is the same scenario where there is domestic abuse and the abuser actually uses some excuse that the person “made him mad” so he “had” to act that way. I think it is important to point out that clearly everyone needs to be safe, everyone should take precaution but it doesn’t justify any outcome whatsoever in the event that person does not take those precautions.
I appreciate the comments and welcome them, always.
My favorite legal jargon
For anyone that has looked at a contract and thought – wow, ere sure are a lot of “notwithstandings” in here, I figured I might as well throw out some of my favorite legal jargon. Often I have wondered how my job has become to complicate a sentence so much that no one can even understand it. In fact, let’s say you wanted to tell someone, in one year from now, our agreement is over. Wouldn’t it be nice if you could just say it that way? Au contraire, mon frere. In fact, why not say something like this: “The term of this agreement shall commence on the effective date as set forth above and shall terminate in one (1) year. Notwithstanding the foregoing, either party shall have the right to terminate this agreement in the event of a breach of the material terms and obligations as set forth herein.”
Ahhh, doesn’t legal jargon just put a warm place in your heart? And that sentence isn’t even that complex. We can save the rest for later. How about some of my favorite words/phrases from Black’s Law Dictionary (for those of you fluent in Latin, you probably already know what this stuff means and no, I have not used all of these but I sure would like to find a way to some day):
Finalis concordia: A final or conclusive agreement (Doesn’t it sound like some type of medication?)
Farding – deal: The fourth part of an acre of land (I bet there are a lot of fights over fardings)
Farlingarii: Whoremongers; adulterers (What is a “Whoremonger”? Is that a bad sign when you don’t know the word they are using to describe the definition?)
Mutual affray: A fight in which both parties willingly enter and is similar to a duel (I love the word “duel”)
Nautica pecunia: A loan to a shipowner; to be repaid only upon the successful termination of the voyage, and therefore allowed to be made at an extraordinary rate of interest (I bet a lot of people are reading this thinking that it is about time they take a voyage on a ship as anything goes to get a good interest rate)
I could go on for days but I will settle for a few posts every now and then focusing on my love of legal jargon.
Victoria’s Secret…watch out for the wrath of the thong?
As someone who likes to buy lingerie, when I saw the headlines about Victoria’s Secret and some type of lawsuit, I figured I should check it out. In an adventure of her own, 52 year old Macrida Patterson damaged her cornea when a piece of metal holding some type of rhinestone on her thong underwear flew into her eye after she was trying to put it on.
http://www.reuters.com/article/oddlyEnoughNews/idUSKUA04469620080620
A products liability lawsuit was filed in Los Angeles and certainly this sounds ridiculous. 1.) What are the chances that a piece of metal would fly off of a piece of thong underwear? 2.) Does this woman know how to put on underwear? but, 3.) Is there any chance this really could be a logical lawsuit?
When someone files a products liability lawsuit, the claim is that the product is defective in some way. There are three ways a product can be defective either in its design, how it was manufactured or the way the product was marketed. So where does our defective thong fit in? Most likely it is a combination of the way it was manufactured or its design. However, most people are probably wondering about the plaintiff in this case. Doesn’t everyone know how to put on underwear? Why should Victoria’s Secret have any liability if this lady has her own underwear issues?
Here is a key page from The Smoking Gun, which shows the actual complaint that was filed.
http://www.thesmokinggun.com/archive/years/2008/0617081secrets4.html
As part of a products liability claim, you will note the plaintiff has to state that the product was “defective” when it left the control of each defendant. The defendants can include the manufacturer, the supplier — anyone in the ”chain of command” the product followed. As for being “defective”, the focus is to show the product does not meet the safety standards expected by the public. Further, if you can show that the defective nature of the product is something that the defendant(s) could have foreseen, despite how the injury actually happened (ie: user error), the manufacturer could still be held liable. The tricky part about this claim for a defendant is that products liability claims can be considered “strict liability” torts. So, if the product is found defective, the defendant could be liable, period. Regardless of how the plaintiff uses the product. Seems kind of strange doesn’t it.
Is it defective if a piece of metal pops off your underwear and hits you in the eye? Again, the issue is strict liability. If it ends up being that the alleged thong was defective, it won’t really matter whether the plaintiff needs some lessons in putting on underwear. Thus is the life of a products liability claim.
I’m sure when everyone hears about this lawsuit, they will roll their eyes as that is what I did. I get it — damaging your cornea probably isn’t fun. But, a lawsuit?
Jury Duty – friend or foe?
Apparently I am one of the few people that feel that jury duty provides a sense of accomplishment. There is something about going to the courthouse, sitting around with your fellow jury duty servers, making sure you are doing your part in helping our system run properly. However, it seems many people often like to tell me about how they got out of a jury summons. How they just kept thinking of excuse, after excuse to delay the inevitable. In California, on the FAQ page for people that receive a jury summons, (http://www.courtinfo.ca.gov/jury/faq.htm) one of the questions is: I’m busy. Why should I serve? The response is as follows:
As a juror you participate in an important public process and fulfill a civic obligation. All persons accused of a crime or involved in a civil dispute have a constitutional right to have a jury decide their cases. When you serve on a jury, you make important decisions affecting other people’s lives as well as your own community.
I suppose not getting paid, having to sit somewhere all day where something may or may not happen, missing an important meeting or lunch because you are stuck in jury duty are a few of the issues people have with jury duty. I have never been on a jury so I suppose my cheerful attitude rests on the fact that I feel as if I am participating in some larger system of good and I have not had the experience of being stuck on a trial for three weeks.
A friend of mine was saying she was selected for a drunk driving case. Despite hearing all of the facts, there was still a part of her that felt that maybe she still didn’t know all of the facts and she didn’t want to be put in a position of making a decision that would significantly affect the defendant’s life. At that moment, I realized that being a juror might be more difficult than I thought. Probably because I have never spent much time thinking about it because I have never been chosen as a juror. But, if I WAS picked, I think those same thoughts would likely go through my mind as well. Forget about the time it takes up, the endless waiting. What about when you actually have to make a decision? Can we trust the facts that are presented to us? Let’s all hope so.
I wonder how many other people feel that way? That even if you are selected as a juror and you are presented with both sides of the facts, you still don’t feel that comfortable with putting someone in jail or making a decision that would affect someone’s life forever? Would love to hear some feedback.
Take this job and shove it
I received an interesting email from someone asking me to address an issue that often finds itself in the workplace. What happens when you are passed on being promoted within a company and the job is given to someone that you feel doesn’t have the appropriate skill set and received the promotion based on “connections” with upper management? My first inclination is to say I’m sorry because that is never a pleasant situation in the first place. However, time to put on the legal thinking cap to see if there is anything that can be done about it.
The first word that comes to mind is discrimination. Is there discrimination in this situation? Employers have a right to promote within a company but if there is actual discrimination in the way the person was chosen, there might be a claim there. The Federal Equal Employment Opportunity Laws (http://www.eeoc.gov/abouteeo/overview_laws.html) describe the different laws that are in place to protect against discrimination in the workplace. These laws are increasingly growing and changing as clearly there is a need for employees to be protected these days. However, I know there are certain people who take the position that if you don’t get what you want, tough luck — just simply go out and get a new job. I find that mentality is in the minority as most people first think of how to get back at the employer rather than being proactive and looking for a new (and perhaps even better) job.
If there was an intentional act of discrimination on the employer’s part (ie: there is proof that the job was given to someone else because of a race or gender issue), then certainly you should explore all of your rights. In most states before you file a civil claim, you must first file a claim with the Equal Employment Opportunity Commission. Most states have local agencies called “Fair Employment Practice Agencies” that regulate anti-discrimination laws. Be sure to check your local state listing for this information but some helpful tips on filing a claim can be found here: http://www.eeoc.gov/charge/overview_charge_filing.html. Further, if you have an employment agreement where it was agreed that you would be promoted at a certain time, I would recommend taking a closer look at your agreement to see whether you have a breach of contract action.
Ultimately what you really have to decide is how much time and effort you want to spend fighting a battle against your employer. It is easy to understand the anger and frustration that might come along in this situation. However, getting angry only affects you and certainly not your employer. They don’t care; they have already made the decision regarding the promotion. I am a firm believer that everyone has a right to stand up for themselves, along with being able to work in an environment where they can grow, succeed and be encouraged to do their best. Don’t ever feel as if you have to stay “stuck” in a job. If someone at your company is getting promoted based on “connections” but that person can’t do the job, ultimately it is “too bad, so sad” for the employer. The key is even if you decide to file a claim, hopefully you have already made the decision to leave and are on a better path anyway. 
I bet you didn’t know that….
CA Penal Code Section 299, Limitations on Disclosure (pursuant to the DNA and Forensic Identification Data Base and Data Bank Act of 1998): The best way to have DNA that has been included in a data bank destroyed is if you have not committed a past or prior offense and there is no legal basis for retaining the DNA specimen or sample or searchable profile. Otherwise, unless you want to go through an entire process (see the rest of Section 299 for those of you who like reading the Penal Code), expect the DNA to stay where it is.
CA Penal Code Section 565, Crimes involving branded containers, cabinets or other dairy equipment: It is a misdemeanor (punishable by a fine not exceeding $1,000 or imprisonment in the county jail, not to exceed six months) to destroy the brand registration upon containers (including milk cases), cabinet or other dairy equipment which have a value of $400 or less and have a brand registered with the Department of Food and Agriculture. Thought I would shed some light on the topic in case someone feels the need to rip off a piece of dairy equipment.
CA Penal Code Section 142, Other Offenses Against Public Justice: Every public officer, or person pretending to be a public officer, who, under the pretense or color of any process or other legal authority, does any of the following, without a regular process or other lawful authority, is guilty of a misdemeanor:
(a) Arrests any person or detains that person against his or her will.
(b) Seizes or levies upon any property.
(c) Dispossesses any one of any lands or tenements.
Isn’t it interesting that ripping off a brand registration off some dairy equipment is considered the same offense as arresting or detaining someone against their will. Hmm.
I’m Stephanie. Attorney at Law.
Let's make the law entertaining, shall we?
