There’s Always Room for J-A-I-L

bill.cosby.meme.565x300Big news this week, as I’m sure you’ve already heard – charges were officially filed against Bill Cosby for “aggravated indecent assault“. But what you may not have heard, and is pretty remarkable for the circumstances of this case, is the deadline prosecutors had for doing so.

Here is the timeline:

2004: Now 12 years ago, Andrea Constand originally claimed Cosby had raped her. At the time, prosecutors for Montgomery County, PA declined to press criminal charges. Since then, numerous other women have stepped forward (many in CA, which becomes relevant later); however, prosecutors continued to withhold from pursuing any criminal action.

2014: A year ago, the Associated Press filed a motion to intervene in order to unseal documents related to the Constand lawsuit. From this came the infamous Cosby Deposition, during which he admitted to purchasing  Quaaludes to give to women he wanted to have sex with, and to giving them to at least one woman. Constand claimed to have been one such woman.

December 2015: Pennsylvania prosecutors finally file criminal charges.

So, what changed? Well, for one thing, the statute of limitations…

All states have a statute which limits the amount of time one has to bring certain charges, including crimes. Often, these vary depending on the seriousness of the charge (e.g. murder has no limitation, whereas many misdemeanors must be brought within 1 year). In Pennsylvania, the statute of limitations on major sexual offenses (including aggravated sexual assault) is 12 years – – I’ll give you a second to process that – – and prosecutors had only 2 days left to file charges against Cosby for the sexual assault of Constand.

In California, the statute of limitations is much shorter. So, for all of those other cases I had mentioned, there was little the local prosecutors could have done. But in PA, it’s a different story. So what really has been going on all of these years?

There is no doubt about the level of celebrity involved with this case, including a long-standing legacy of comedy, family, and public moral taught by Mr. Huxtable. And so, perhaps reminiscent of the O.J. Simpson trial, prosecutors must surely have been cautious in approaching such a charge. But while it’s often said “better late than never” (and in many cases that may be true), I can’t help but hope for justice, no matter the fame of the defendant.

If he is innocent, or guilty, let it be decided by a competent court – not by social media, T.V. news, or YouTube comedians.

Contact Sports: Criminal Assault?

89dbec91efb49516c59716551a59474d2b93404a4c10bdef1356841227d02f9bFrom Gladiators of the Pantheon, to “The Gladiators,” a Cleveland Arena Football team, people have always gawked and cheered at the brutal carnage of contact sports. It’s no surprise that rules have been toned down over the years, as civilization moved beyond the aqueducts and chariots of the olde world, but there has inevitably remained a level of physicality.

So where is that line between carnage and sport? For the Contra Costa County prosecutor’s office, it begins and ends with charges for in-game felony assault and battery.

A 15-year-old water polo player from Lafayette, CA is currently facing a criminal sentence for breaking an opponent’s nose during a tournament. Though no foul was called, allegedly captured on video is the “purposeful blow” to the Bellarmine player’s face – – in front of the goal, while playing in the known-aggressive 2-meter position of the known-physical contact sport of water polo.

Ever see a match of water polo? No? Well, imagine rugby, mixed with a dash of soccer, and all while treading water.

California Penal Code, Section 242, defines “battery” as the “willful and unlawful use of force or violence upon the person of another.” Certainly, the element of force is satisfied (just ask the broken nose). But, “unlawful”?

Signing up to play contact sports involves a necessary assumption of risk. Some of these risks are inherently obvious (like being tackled); some risks, on the other hand, are certainly not consented to by a player’s participation (like being intentionally kicked in the face). But society requires a balancing effort to both encourage sport and vigorous competition, and to discourage ‘foul’ play.

Cases like this have already been adjudicated across the country. Many states have adopted holdings that a player’s conduct must be more than a game’s rule violation, and more than ordinary negligence (that is, a lack of reasonable care under the circumstances). The defendant-player must be shown to have acted with intent to injure or with reckless disregard for the safety of the injured player. Conduct is “reckless” if the risk is known but consciously disregarded. In other words, the courts have set a particularly high bar when an athlete attempts to sue another player.

Still, it will be interesting to see what kind of precedent this case sets for high school sports.

Nativity of the Living Dead

He Died For Your Sins (and Came Back For Your Brains)

Zombie_1c5a85_1002350

December is upon us. And for a vast majority, that means one thing: Christmas. The advertisements are airing; the sales are in full swing; and decorations start to light up the evenings. But for Sycamore Township, Ohio, the decorum has once again’brought back life’ to the community.

In 2014, Jasen Dixon decided to launch a zombie themed nativity scene. The result of this inspired story was that while his neighbors fought for bright lights and choreographed music, Dixon fought the horde, and the Township, for the right to display his vision.

12299244_509690255858690_5140584720787033565_n.jpg

Last year, Dixen faced $500 in fines per day that the nativity scene was up. As you can imagine, people were not pleased with his artwork (and vocal about the fact). But the ‘real’ problem, so said the officials, and the cause for these citations, was “debris” and that his 15-foot display violated local zoning ordinances as being considered an “accessory structure”.

Depending on where you live, you likely fall within the scope of various local (municipal or township) and/or County ordinances requiring a special permit. Do you want to build a fence? Put a shed in your backyard? Maybe cut down a tree in the right-of-way? Perhaps you too want to create an inspired nativity story. Before you do or legally can, you should check with your local governing body for any restrictions. Or, like Dixen, you may find yourself under a heap of fines…

This year,  Dixen properly applied for a building permit, raised $1,000 in funding, and even advertised his plans on social media. Fully complying with the applicable zoning laws, it looks as if his artwork can stay alive through the season.

———————————————–

Are you considering new construction or demolition? Renovations to an existing home? Or some other kind of work on your property? Maybe you have issue with something your neighbor did? Visit www.AremLaw.com for a consultation, or go here for access to some common public resources you can investigate on your own.

Google: Get Out of the Left Lane!

download

The left lane is for passing traffic! Oh, wait, there’s nobody driving this car… ?

As you may or may not know, Google has been experimenting with self-driving cars on the California roadways. What you probably, definitely, don’t know is that this past week a Mountain View Police officer pulled over one of these auto-automatons – for driving too slow.

If you’re wondering, yes, it is legal for these cars to be on the road (well, certain roads, anyways). Per the California Vehicle Code, Google’s self-driving vehicles are allowed on roads with speed limits under 35mph. But it is illegal to operate a vehicle at such a slow speed as to impede or block traffic. And that’s exactly what happened here. Though no citation was issued (I’d love to attend that traffic court date), the officer did question the operators on how the vehicle was choosing its speeds.

According to the Associated Press, 17 of Google’s other self-driving cars have been in “minor” collisions since 2010. In response, Google claims that all of the incidents were minor, and that none were the fault of their cars. More troublesome here, however, is Google’s intent to program their cars to drive ‘less like robots’ and ‘more like people’ to reduce how frequently these self-driving cars get hit by real people.

You might be asking yourself, “Why is this troublesome?” Well, putting aside how bad ‘real people’ drive (not exactly the best role model), how would you expect an automated car to make moral decisions?

huh-meme-generator-huh-what-0e4b63.jpg

Imagine yourself driving down the road. Suddenly, a person darts out in front. You slam on the breaks, swerve, and hit a pole. Your life versus his. No? What about 3 people? Or 1 kid? Maybe a crowd of 20 people?

Should (or how should) a car be making these decisions? Would you feel safe(r) in a car that put priority on your life over all others? Or is there a moral imperative to save the many over the individual? A kid versus an adult?

Ok, a little heavy, perhaps. But these are decisions which every motorist makes, every day – whether conscious or not. So while driving the speed limit and avoiding other law-abiding vehicles may be on the horizon, we’re a long, long way away from an A.I. capable of such moral determinations.

For now at least, philosophy aside, the law allows them. And that’s enough… ?

Capture1

Pastafar-ID: MA Awards Pastafarian Driver’s License?

Pastafari “Pastafarianism”, or the Church of the Flying Spaghetti Monster. Yes, it’s real. At least, in the sense that it’s a real thing… But now, thanks to Ms. Lindsay Miller of Massachusetts and her Flying Spaghetti Driver’s License, this “religious movement” just gained a noodle more traction with religious accommodation.

It began in 2005 when the Kansas State Board of Education was arguing to promote ‘intelligent design’ in Biology class as a parallel to education on evolution. Mr. Henderson, as any good concerned citizen would do, sent in an open letter satirizing creationism with his own account of existence. Basically, he postured that any discrepancies in carbon dating (you know, like how the dinosaurs could possibly exist with the Bible’s account of time), can be attributed to a supernatural creator – which just so happens to closely resemble spaghetti and meatballs – there “changing the results with His Noodly Appendage”.

According to the “faith’s” central creation myth, an invisible and undetectable Flying Spaghetti Monster (FSM) created the universe “after drinking heavily” (which intoxication is the cause for all of the flaws in Earth). Evidence in favor of evolution was actually just planted in an effort to test the faith of Pastafarians.

Whether you believe this or not is your right (hooray 1st Amendment!). But whether the government chooses to accommodate you for that choice has, until now, been ‘under sauce’ … er… scrutiny.

Just this month, Ms. Miller was approved to wear a colander on her head in the MA State-issued driver’s license:

Pasta ID

Why? Because the 1st Amendment, in addition to letting you believe what you want, also extends to religious accommodation by others – such as wearing a religious “garment” in government identification.

I’ve previously argued that, despite the inherent subjectivity of religious morality, extending protections to all deeply held convictions without close scrutiny actually opens the door to weakening and undermining policies behind religious freedom. So, let’s save that kind of depth for the law reviews. But the question here remains: at what point does satire or parody cross the line with 1st Amendment freedom? Do Atheists really, actually believe in the FSM? Should they have to prove it before something like this happens again?

Maybe the changes in New York have something to say about this…

Beginning in 2016, New York residents might need more than just a driver’s license in order to fly. Why? Because the “REAL ID Act of 2005” imposes requirements on state driver’s licenses and ID cards to be accepted by the federal government for “official purposes”, as defined by the Secretary of Homeland Security. In short, driver’s licenses are state issued – not federal – and therefore have become the de facto identification. Prior to the this Act, each state set out its own rules and criteria, including the look of the card (hint hint), what data is on the card, what documents must be provided to obtain one, and what information is stored in each state’s database.

So, while MA may have made statewide advances for Pastafarianism, perhaps the federal government will ‘spill the sauce’ on the movement. Only time will tell (unless, in a drunken fit, His Noodly Appendages change that, too).

Drinking and Driving …. Coffee?

“Distracted Driving” Covers More Than Texting

Homer Distracted DrivingEveryone knows (I hope) not to drink alcohol and drive… But when have you ever given a second thought about the legality around that Big Gulp? Can of soda? Well, how about that travel mug of coffee in the morning?

Minnesota may have just set a troubling precedent, recently citing coffee drinkers with ‘distracted driving’ charges.

Lindsay Krieger, a Minnesota resident and coffee ‘commuter-drinker’, was recently pulled over on I-94 and fined. Not for speeding, but for drinking coffee while driving. Unfortunately, the law is against her on this one, as Minnesota (like most every state) has statutes prohibiting “distracted” (or “inattentive”) driving. Although texting while driving has received most of the nation’s attention – and for good reason – what you don’t know may just be an issue of what’s enforced.

Every state has its own specific ‘rules of the road’, including what constitutes “distracted driving”. But what’s you may not know is that most of them reach ‘eating and drinking’.

In Maryland, for example, distracted driving is defined as the “failure to pay full time and attention” and is divided into 4 categories: visual, auditory, manual, and cognitive. Fines for failing to pay proper attention can cost you upwards of $100. Distracted and injure or kill someone? With the passage of Jake’s Law in 2014, that may now land you a year in prison and a $5,000 fine.

The real question though is not always what the law says – it’s what the state (and its officers patrolling the roads) are actually going to enforce. So with the laws already on the books, could your state be next to target eating and drinking?

It’s hard to say whether others will follow Minnesota’s lead. But it’s no secret just how problematic and injurious distracted driving has become; perhaps the enforcement is just a matter of time. For now, to be safe – for you and for others on the road – you may want to hold off on taking that next sip…

Prayer at the 50-Yard Line: Praise Be…. Satan?

The “Free Exercise Clause” – Literally

Foosball Is the Devil

A Seattle football team may soon be visited by Satanic rituals on the game field… Yes, really… Why?? In demonstration against the coach’s refusal to stop forcing Christian prayers at the 50-yard line.

The “Free Exercise” Clause (coincidentally punderful) is a Constitutional mandate. Interpreted by Jefferson himself to mean the “separation of church and state”, this provision keeps religion out of governmental activities. But what does it really mean? And where do you draw the line between a Hail Mary, and a “Hail Mary pass” on the football field?

Our Founding Fathers believed in a secular government – one where religious doctrine didn’t mingle with our government (like the Papacy and political structure in Ye’ Olde England so fervently left behind). To enforce that belief, the Constitution (Article VI) was drafted to create a divide between the two. Although the text itself specifically addresses political office, Jefferson eloquently elaborated on its meaning in his Letter to the Danbury Baptists:

I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church & State.

Beautiful, ain’t it? I’d like to see any politician write something half as eloquent today.

For Joe Kennedy, the coach of a Seattle public high school football team, the Constitution has no connection with his game day prayers at the 50-yard line. Why? Because the games are “after school”… Never mind that everything is held on school grounds, with school students, who convene in and use the school locker rooms – Kennedy claimed he is at that point no longer a public school employee bound by this. The superintendent nevertheless told him that the prayers must stop, “so as to avoid alienation of any team member,” and to avoid breaking the law.

Kennedy, of course, didn’t. His lawyers got involved, and the matter continues. But that’s not what’s really interesting about this case… No, no. It’s the response of Lilith Starr – head of The Satanic Temple of Seattle.

It began with a general offer of mockery and mischief – Satanic services can be provided at the request of any team member. It continued with an actual request by Bremerton High School senior and class President, Abe Bartlett. Simply put – if Christian prayer is acceptable on the field as a religious forum, then the forum must be open to all groups.

To be fair, it’s not as if this hypocrisy isn’t commonplace:

nfl prayer

Constitutional Law on this matter is actually pretty well settled after decades of litigation. But, you have to give Bartlett and Starr some credit for their novel approach at pointing it all out.

When Age Exceeds Experience: Too Old to Practice Law?

A Growing Trend of Growing Pains in Growing Too Old

Too Old for this Shit

When you choose a lawyer, what do you look for? Fair rates? Good reputation? Experience, certainly. But at what point does age no longer balance the scale in favor of experience? When does the length of time practicing and experience gained therefrom simply spill over, becoming ‘too old to competently practice’? And what, if anything, should the community at-large do about it?

It’s no secret that the legal market is over-saturated; there are more attorneys than jobs to staff them all, and more services offered than clients to need it. The obvious factor? Economics. But beyond the obvious is a subtler – and perhaps more troubling – factor in this equation: aged attorneys too old to competently practice, and an ego that overlooks a client’s best interests.

Ruth Bader Ginsburg (the oldest Justice on the Supreme Court) turns 83 years old next March. Antonin Scalia turns 80 just four days before her. But when it comes to private practice, many firms say 65 is too old to practice – – and for good reason.

A 2007 survey found that half of all firms nationwide with 50+ attorneys on staff had mandatory retirement ages; 38% of those firms required retirement at age 65, while 36% deferred until age 70. With age discrimination claims forcing action since that survey (like this), the statistics are likely to have dropped. But the practical and sensible reasons behind such policies remain true – and perhaps even more so today with new technologies integrating into all facets of practice.

Lets take a quick poll… Which legal service are you more likely to trust as accurate, fast, and thorough? Which would you prefer be utilized?

                                COLUMN A                                                                COLUMN B

  1. Online legal research (e.g. Lexis, Westlaw, etc.)       vs.      Print books with intermittent updates
  2. 1st level processing (e.g. Microsoft Word)                 vs.      Notes and tape later transcribed by a secretary
  3. First-hand knowledge of the latest technology           vs.      Second-hand instruction from a younger staff

These may, of course, be an oversimplification of the practice. But by-and-large, the dichotomy of knowledge between senior and junior attorneys is just that clear. And would you really expect anything different when one demographic is raised utilizing the very latest-and-greatest of the available tools?

Aside from ensuring these types of services, however, is another problem – mental competency.

As succinctly stated by John T. Berry, chair of the NOBC and Association of Professional Responsibility Lawyers’ Joint Committee on Aging Lawyers, it’s a normal reaction for senior lawyers to take it personally when they are told their competencies are being reduced. However, “If we don’t do anything, it’s a disservice to the public and the individual attorney… there is an obligation on you as a professional that you are being objective in your decision making. We have to protect the public, and we have to protect you from having a long-term career ruined because you don’t realize it’s time to slow down or to retire.”

The law is as much a practice of know-how as it is memory and tact. So while the experience which comes with age may certainly benefit a particular knowledge, like the ins-and-outs of a small niche practice, in the long run it may be doing more harm than good. The client should always come before an attorney’s ego, and sometimes that simply means knowing when to step aside.

Every lawyer, like every case, is unique. Some people are as sharp at age 90 as they were at 30, while others can’t remember why they just entered a room. But before you choose your next attorney, it might be worth giving some thought to whether their length of experience is everything it sounds to be.

Speeding Ticket “Complaints” – Protected Speech?

“F**k Your S**tty Town Bitches”

Simpsons Speeding Ticket

If you’ve ever gotten a speeding ticket – this is for you.

It wasn’t your fault, right? Or maybe you were caught at just the wrong second, maybe passing a slower car? ‘Just moving with traffic’? Or, perhaps, it’s entirely accurate, but just really pissed you off…

Well, thanks to the U.S. District Court for the Southern District of New York, sharing exactly those feelings on the ticket itself just might be protected speech under the First Amendment to the Constitution.

In 2012, Mr. William Barboza (a Connecticut resident) was driving in the town of Liberty, NY when he was issued a speeding ticket by local enforcement. Not traveling back to NY to contest the ticket, Mr. Barboza pleaded guilty on the payment form. However, that just wasn’t enough to accurately convey his feelings about the matter.

On the payment form itself, Mr. Barboza struck out the name “Liberty” and replaced it with “Tyranny”. Because that just wasn’t enough, before placing the form and his payment in the mail, he wrote this across the top:

Ticket Profanity

Although payment was remitted with his guilty plea, Justice Brian P. Rourke notified Mr. Barboza that it was rejected and he would have to return to NY to appear in court. When he did return, Justice Rourke proceeded to lecture Mr. Barboza about his use of foul language, before arresting him on charges of aggravated harassment (it being illegal in NY to “harass, annoy, threaten or alarm” someone)…  Mr. Barboza was booked, finger printed, and jailed, until paying $200 bail for release.

Here’s where it gets constitutional…

Mr. Barboza filed a lawsuit against the town of Liberty (among others), arguing that the NY statute for aggravated harassment was misinterpreted and, further, that Mr. Barboza’s constitutional rights were violated by his arrest. Just this month, the court issued its ruling agreeing with Mr. Barboza.

As stated my Mr. Mariko Hirose, a staff attorney with the NY Civil Liberties Union, “New Yorkers should not be afraid to protest or complain about a speeding ticket — or any other government action — because they might be dragged to jail for using a few harmless words. The First Amendment protects people’s right to express their opinions about the government, and our government is better for it.”

Important here is the court’s finding that the language, although crude and profane, did not convey an imminent threat. Rather, it was made in the context of complaining about government activity.

So, pay attention to your local statutes, but feel free to share your feelings in all their glorious form about government activity.

Sexting – A Felony Sex Crime?

If your kids are doing it, maybe!

Bush Phone

If you don’t know what sexting is by now, I’m not going to be the one to tell you. But your kids know already, and that’s a problem.

According to North Carolina prosecutors, that problem may now come with felony sex crime charges. So if you don’t want your children to end up with criminal charges on their record (or in prison), or to be on a federal and state sex offender list, then listen up…

Cell phones – so common now that even the police have, for the most part, abandoned monitoring the CB radio emergency channel. But it’s not just adults with phones – it’s kids – your kids. And with those phones come personal digital cameras.

For two North Carolina teens, in a relationship, who engaged in consensual sexting without any coercion or distribution beyond themselves, that freedom now has the pair being tried as adults on multiple counts of felony sex crime charges.

Yes – really.

The Story

While under NC’s age of consent laws the two teens could legally have had sex with one another, sexting is considered a felony for possessing sexually explicit photos of a minor – – child pornography.

The boy – 5 counts for child pornography. (I will note though that the charges include having photos of himself on his own phone…). The girl – 2 counts of sexual exploitation as a minor (originally charged as both the victim and perpetrator… yep). However, she has since taken a plea deal dropping the felony charges, instead pleading guilty to a misdemeanor which will be expunged after 1 year of probation. The probation? For the next 11 months she isn’t allowed to own or use a cell phone (among other restrictions)…

People convicted of sex crimes, regardless of severity, are considered “sex offenders” by their respective state and face having their names added to state and federal sex offender registries. In other words, your children could, at only age 16/17, be registered sex offenders. Thanks, teenage hormones.

Seriously, have a talk with your kids.

According to a 2014 study by Drexel University, the majority of teens are now engaged in sexting (or have at some point). An even higher percentage, however, are entirely unaware that this ‘harmless’ fun (even with 100000% consent and intent) can be considered a felony crime. 

Parents – do you know what apps they are using?

More and more apps are being developed to secretly store photos on cell phones. This is a great example, hiding in plain sight as a calculator app – except, not really. Sure it works like one, and looks like one. But key in the secret passcode and you unlock a hidden vault for storing pics.

Unless your children are as innocent as Kimmy Schmidt, now would be a good time to have that talk.

Thanks for reading. Enjoy this “duck pic”

Duck Pic