Welcome to the LSIS Investigative Journal

Welcome to the LSIS Investigative Journal

Saturday, October 29, 2011

Are incendiary threats made on Facebook protected by First Amendment?

Jury Convicts on Four of Five Counts in Facebook Threat Case
The Legal Intelligencer
October 21, 2011
Amaris Elliot-Engel
A federal jury on Thursday found a Facebook user guilty of four counts of threatening his estranged wife, the Pennsylvania State Police and the Berks County Sheriff's Department, a kindergarten class, and an FBI agent and not guilty of threatening patrons and employees of Dorney Park, where he used to work.
A federal prosecutor and a defense attorney took the same social networking posts made by Anthony D. Elonis in the autumn of 2010 and asked a federal jury in the Eastern District of Pennsylvania to view them in very different ways.
To federal prosecutors, Elonis' posts on the site were the perfect way to make sure people in his life became fearful for their lives.
But to defense counsel, Elonis' Facebook posts were a way to vent his anger as his life came unhinged when his home life fell apart and he lost his job.
Elonis was indicted for allegedly making threats in October and November 2010 to the employees and patrons of his former workplace, Dorney Park and Wildwater Kingdom, his estranged wife, the Pennsylvania State Police and the Berks County Sheriff's Department, an FBI agent and a kindergarten class of elementary schoolchildren, according to court papers.
Prosecutor Sherri A. Stephan, an assistant U.S. attorney, said that it didn't matter if Elonis intended to carry out the threats or if he had the means to carry out the threats.
What matters is not what Elonis subjectively intended by his social-networking posts, but if an objective, reasonable person would understand that the posts could cause someone to feel threatened, to feel that Elonis' words carried the intent to inflict injury on them, Stephan said.
Stephan argued that Elonis' postings were the kind of statements "that a reasonable speaker, a reasonable [person making threats], could see the language would cause someone fear."
Elonis is claiming he has the right to put people in fear for their lives, Stephan said.
Benjamin B. Cooper, an assistant federal defender, said that Elonis' utterances were not true threats because they were exaggerated or said in a moment of anger. The legal definition of a true threat is a serious statement expressing an intent to inflict an injury, which is distinguishable from a statement made carelessly, made in exaggeration, made in a joking manner or made in an outburst of anger.
Elonis did not make threatening telephone calls, and he did not write letters with threats in them, Cooper said, reminding the jury that it must decide if Elonis became a criminal because of his Facebook postings.
Cooper said the jury should look at where Elonis was in his life: He had no family because he and his estranged wife, Tara Elonis, had separated, and she had moved out, taking their two children with them; he did not have a place to live; and he had lost his job.
Cooper also argued that Facebook is a venue in which people are "yelling at each other on the Facebook. People are swearing at each other on the Facebook," and Anthony Elonis was just participating in that world.
While Elonis' statements were crude and offensive, he was not a criminal for the things he said and the government did not prove beyond a reasonable doubt that Elonis uttered "true threats," Cooper said.
Elonis was charged with violating the federal statute criminalizing "any communication [in interstate or foreign commerce] containing any threat ... to injure the person of another."
U.S. District Court Judge Lawrence F. Stengel, who presided over the trial, ruled against a motion to dismiss the indictment. Cooper, arguing on behalf of Elonis, said in court papers, among other arguments, that Elonis' postings were placed in "rhyme settings" and are entitled to First Amendment protection, according to court papers. Stengel said the issues were a matter of fact, not a matter of law.
During Elonis' testimony, he said that "the government is trying to paint me as a monster," but he said he used violent imagery but did not have an intent to harm anyone.
"I'm using elements of my life fictitiously," Elonis said. "It's therapeutic for me." Elonis also said that he was interested in studying theater, and he had enjoyed playing roles in the past.
Beyond Facebook, Elonis said he had no direct communications with anyone who was named as victims in the government's indictment.
During her closing, Stephan said that Facebook wasn't a less serious medium for making threats but, in fact, the perfect venue to make threats because everyone Elonis targeted was looking at his Facebook account.
Stephan also struck an incredulous tone at Elonis' testimony that his postings were just artistic or emotional in nature: "Oh, it's just rap lyrics. Oh, it's just fictitious stories."
Among the many alleged threats made by Elonis, he wrote five days after he was fired from Dorney Park that "'Y'all sayin I had access to keys for the all the fuckin' gates. ... Y'all think it's too dark and foggy to secure your facility from a man as mad as me? You see, even without a paycheck, I'm still the main attraction. Whoever thought the Halloween Haunt could be so fuckin' scary?'" according to court papers.
Elonis also posted — in this instance several days after a judge ordered a PFA in favor of his estranged wife: "'Fold up your PFA and put in your pocket. Is it thick enough to stop a bullet?'"
A day later, Elonis wrote that he might shoot up a kindergarten class: "'I'm checking out and making a name for myself. Enough elementary schools in 10-mile radius to initiate the most heinous school shooting ever imagined. And hell hath no fury like a crazy man in a kindergarten class,'" according to court papers.
After Elonis was visited by FBI agent Denise Stevens, he also posted that it "'took all the strength I had not to turn the bitch ghost. Pull my knife, flick my wrist, and slit her throat. Leave her bleedin' from her jugular in the arms of her partner.'"
In another post that was not subject to a criminal charge, Elonis posted a picture from Dorney Park's haunted Halloween event in which he'd changed the photo so a knife was placed to the throat of a Dorney Park employee and labeled with the caption, "I wish," Stephan said.
Stephan argued that Elonis was seeking law enforcement authorities' attention in order to get arrested.
Amaris Elliott-Engel can be contacted at 215-557-2354 or aelliott-engel@alm.com. Follow her on Twitter @AmarisTLI. •

Friday, October 28, 2011

Woman Stabbed Boyfriend Over Alleged Monopoly Cheating

 They always foreclose on Park Place, Marvin Gardens and Boardwalk.  I wonder if she has a "Get out of Jail  FREE" card?

Laura Chavez, 60, of Santa Fe, N.M., is accused of repeatedly stabbing her boyfriend,  Clyde “Butch” Smith, 48, when a family game of Monopoly went terribly awry.

Chavez began to argue with Smith while playing  the board game with her 10-year-old grandson. The boy told police that Chavez accused Smith of cheating at Monopoly, and then sent the boy to bed around 11 p.m. mid-argument.

According to a probable cause statement released by police, the couple’s dispute escalated until Chavez hit Smith over the head with a glass bottle, then grabbed a knife and began to cut  him on his head, neck, face, arms  and hand.

Chavez’s grandson slept through the physical altercation, waking up when police arrived in his bedroom, according to the statement.

Police said Smith was in stable condition at St. Vincent’s Hospital, where he was taken by ambulance after the attack. Doctors told police Smith was “very intoxicated” when he arrived. Police said Chavez’s apartment was covered in blood from the assault.

Chavez was held on a $5,000 bond.
This Monopoly-inspired attack is not the first incident of board game rage. In September, a Florida man allegedly choked his wife over a game of Yahtzee, and in 2009 a Michigan man went to jail for assaulting his Monopoly foe when she would not give up Park Place and the Boardwalk.

LINK TO ARTICLE : Woman Stabbed Boyfriend Over Alleged Monopoly Cheating

FBI REPORT: Gangs encourage members, associates, and relatives to obtain law enforcement, judiciary, or legal employment

FBI REPORT:  Gangs encourage members, associates, and relatives to obtain law enforcement, judiciary, or legal employment in order to gather information on rival gangs and law enforcement operations. Gang infiltration of the military continues to pose a significant criminal threat, as members of at least 53 gangs have been identified on both domestic and international military installations.  CLICK ON THE LINK BELOW FOR A FULL DETAILED REPORT.

The National Gang Intelligence Center (NGIC) prepared the 2011 National Gang Threat Assessment (NGTA) to examine emerging gang trends and threats posed by criminal gangs to communities throughout the United States. The 2011 NGTA enhances and builds on the gang-related trends and criminal threats identified in the 2009 assessment. It supports US Department of Justice strategic objectives 2.2 (to reduce the threat, incidence, and prevalence of violent crime) and 2.4 (to reduce the threat, trafficking, use, and related violence of illegal drugs). The assessment is based on federal, state, local, and tribal law enforcement and corrections agency intelligence, including information and data provided by the National Drug Intelligence Center (NDIC) and the National Gang Center. Additionally, this assessment is supplemented by information retrieved from open source documents and data collected through April 2011.


Thursday, October 27, 2011

Woman faces identity theft charges after creating fake Facebook profile about ex-boyfriend

Woman faces identity theft charges after creating fake Facebook profile about ex-boyfriend

Posted: Wednesday, October 26, 2011 6:57 am

MORRISTOWN (AP) - Lawyers for a New Jersey woman say the state's identity theft law doesn't apply to allegations that she created a fake Facebook profile about her ex-boyfriend.

Forty-one-year-old Dana Thornton faces up to 18 months in prison if convicted.

Authorities allege the Belleville resident created a Facebook page as if it was written by her former boyfriend, Parsippany police Detective Michael Lasalandra, after they broke up.

The Daily Record of Parsippany (http://dailyre.co/uPQyqW ) reports Thornton's lawyer, Richard Roberts, claims while his client may have violated Facebook rules, there's no law in New Jersey against creating a profile of anyone online.

Morris County prosecutors say even though the ID theft law doesn't mention the Internet, Thornton's action harmed her ex-boyfriend's reputation.

Lasalandra declined comment. A hearing is scheduled for Nov. 2.

Tarrant County juror sentenced to community service for trying to 'friend' defendant on Facebook

Posted Sunday, Aug. 28, 2011
FORT WORTH -- Jonathan Hudson has learned that some things just don't go on Facebook -- namely jury duty.

Hudson was a juror on a Tarrant County civil case last month when he tried to "friend" the defendant and discussed the case on his Facebook page, according to court records. The woman notified her lawyer who, in turn, told the presiding judge, Wade Birdwell.

Last week, Hudson, 22, pleaded guilty to four counts of contempt of court related to the matter. He was sentenced to two days of community service, which will be chores assigned to him by the jury bailiff next month.

Officials in the Tarrant County district attorney's office said this is the first instance they are aware of in which a juror used social media to contact a person involved in an ongoing case.
"I've never seen this before," prosecutor Chris Ponder said. "But I'm afraid this is a new reality as the technology is so ubiquitous that we'll have these types of things occur."

The trial involved a 2008 car wreck.

After trial recessed for the day on July 18, Hudson tried to contact the defendant, Courtney Downing, on Facebook.

The next morning, he was dismissed and the trial proceeded with 11 jurors.

Hudson then sent Downing an apology message, saying he thought she was someone else, but she didn't believe him, according to the court records.

He wrote that he was being prosecuted for his actions, adding that he didn't use names or talk about what kind of case it was on his Facebook page, according to the records.

"I pretty much just said I was selected to be on a jury," his Facebook message to her read. "I'm pretty upset over this and I'm sure you guys are too. I guess you know what it feels like to be prosecuted too. Good luck with everything."

Texas recently added specific language to jury instructions that bans jurors from discussing the case on social networking sites such as Facebook and Twitter, which was in the instructions given to Hudson, officials said.

Hudson's attorney Steve Gordon said his client feels bad about what happened.

"He seemed to be a very nice kid who just made a silly mistake," Gordon said. "It is a reflection of the times. Most everyone has smartphones now. They can hop on at almost anytime. And there's a lot of down time in jury duty, so what most people do is hop on their phone. But the rules are there for a reason."

Eva-Marie Ayala, 817-390-7700

Sunday, October 23, 2011

ACLU Sues Dept. of Veterans Affairs Over Land Use

Land specifically designated for housing and treating Veterans misused by VA to store rental cars and leased corporate space.

ACLU Sues Dept. of Veterans Affairs Over Land Use

The American Civil Liberties Union has filed suit against the Department of Veterans Affairs over alleged misuse of a parcel of land in Brentwood.
The American Civil Liberties Union announced Wednesday it filed a class action lawsuit against the U.S. Department of Veterans Affairs, alleging misuse of a parcel land in Brentwood donated by a prominent West Los Angeles family.

The ACLU announced that it had filed the suit on behalf of four homeless veterans and the descendants of the family that originally owned the land, at a press conference on Wednesday, in front of Veterans Park.

Among the attendees was Carolina Barrie, a former member of the Board of Directors of the Veterans Park Conservancy and a descendant of Arcadia Bandini de Baker. In 1888, de Baker and Sen. John Percival Jones deeded 300 acres of land along Wilshire and San Vicente boulevards in Brentwood to take care of wounded war veterans.

The land become a compound housing a veterans hospital, the Los Angeles National Cemetery and a recreation area. However, the Department of Veterans Affairs has rented out portions of the land to private corporations.

The ALCU says it wants a federal judge to order the Department of Veterans Affairs to use the land solely to house veterans or provide medical and psychiatric care to them.

“The VA is legally obligated to provide medical and psychiatric services to every veteran,” said Mark Rosenbaum, ACLU's chief counsel. “The property was donated to be used as permanent supportive housing for the veterans... but that has not happened."

“It’s shameful,” said Steve Mackey, president of the Vietnam Veterans of American California State Council. “We have all the buildings in there. They can just modify the buildings and open them to homeless and disabled veterans.”

Rosenbaum agreed. “Now the land houses more empty buildings and more rental cars than it does veterans,” he added.

Mackey said one of the plaintiffs listed in the suit, who has lived on the streets since his return from service in Afghanistan and Iraq, fears coming forward because he suffers from a severe case of post traumatic stress disorder.

“He has been struggling to adjust to life back home," Mackey said. "He constantly has nightmares. He says it would have been better to come home in a flag-draped coffin. He needs medical and psychiatric help.”

The attorneys for the plaintiffs said the department has thwarted several attempts to communicate.
Mackey also said veterans—who have been protesting to get the housing facility for homeless vets reopened for decades—had no choice but to file suit.

“I would like to make clear that this lawsuit is a last resort,” hr said. "We tried to have the government and the VA provide the services and accommodations that our disabled and homeless brothers and sisters need. But the VA has not responded.”

A representative for the Department of Veterans Affairs could not be reached for comment Wednesday.


Suit alleges misuse of Los Angeles VA facility

Suit alleges misuse of Los Angeles VA facility

A lawsuit on behalf of homeless veterans seeks investigation of agreements that allow entities not related to veteran care to use the sprawling Westside campus.

June 09, 2011 
By Martha Groves
Los Angeles Times

The Department of Veterans Affairs has misused large portions of its campus on L.A.'s Westside and has failed to provide adequate housing and treatment for homeless veterans, according to a lawsuit filed Wednesday by veterans advocates and lawyers.

"In Los Angeles we have a 387-acre parcel deeded in 1888 for the specific purpose of housing a permanent home for U.S. soldiers, and it's now housing rental cars, buses, hotel laundry facilities and state-of-the-art sports facilities for a private school," said Mark Rosenbaum, chief counsel of the ACLU Foundation of Southern California in Los Angeles, which leads the coalition.

The complaint, which seeks class-action status, was filed in U.S. district court on behalf of four disabled homeless vets suffering from post-traumatic stress disorder and other conditions; the Vietnam Veterans of America, a leading nonprofit organization; and a descendant ofArcadia Bandini de Baker, an original owner of the property.
Among other remedies, it calls on Washington to investigate "enhanced sharing" agreements that have allowed entities not related to veteran care to use the sprawling campus at Wilshire and San Vicente boulevards.

Those include Enterprise Rent-a-Car; Tumbleweed Transportation, a charter bus company; Sodexho Marriott, a hotel laundry facility; the UCLA baseball team; andBrentwood School, a private institution with state-of-the-art sports facilities. Such uses limit the amount of land that can be devoted to housing veterans, the lawsuit contends.

"Nobody knows how the deals were negotiated, where the money has gone," Rosenbaum said.
Named in the suit are VA Secretary Eric K. Shinseki and Donna M. Beiter, director of the VA Greater Los Angeles Healthcare System.

A spokesman for the Department of Justice said attorneys had not yet seen the complaint and therefore would have no comment.

Over the years, VA officials have said the lease agreements have raised money for veterans programs.

In 2009, Shinseki pledged to end homelessness among veterans by 2015. At the time, the VA said, there were about 131,000 homeless veterans nationwide on any given night. Today, the agency estimates that number has dropped to about 76,000, about 7,000 of them in Greater L.A., down from about 8,000 in 2009.

"Though much work remains, VA is beginning to make good on that promise," department spokesman Josh Taylor said Wednesday in a statement.

Shinseki's plan includes support services for low-income veterans and their families as well as a national referral center to link veterans to local service providers. It calls for expanded education, job programs and housing.

The 2012 federal budget proposal includes $4.9 billion for VA homelessness initiatives, up from $4.3 billion in fiscal 2011.

One of the plaintiffs cited in the suit is Greg Valentini, an Army vet who served in Afghanistan and Iraq. After being discharged, he told the ACLU, he was diagnosed with a severe case of post-traumatic stress disorder that caused him to feel hyper-alert and to experience nightmares. He said he had suicidal thoughts and medicated himself with methamphetamines and became homeless.
Not far from the news conference, veterans battling addictions and mental illness were attending an on-campus fair offering food and information. Anthony Coleman, 56, a Vietnam veteran and former heroin addict who is temporarily living at the VA, complained about red tape and limits on stays.

Sunday, October 23, 1983 - Don't forget these 241 heroes.

Sunday, October 23, 1983 - Don't forget these 241 heroes.

Thursday, October 20, 2011

"Lawyers who still don't have any Web presence basically don't exist to anyone under age 35." The Must-Have

Technicalities - "The Must-Have"
April 2011

There are so many dazzling high-tech gadgets on the market these days, it can be hard to separate the nice-to-have and want-to-have from the must-have. But all those shiny new boxes shouldn't distract you from the three essential technologies detailed here.  

A Good Backup System:

The computer is the greatest labor-saving device ever invented by humans--until it crashes. Then it's the spawn of Satan. The best way to prevent the irretrievable loss of data is to make sure you have a good backup system. It may be the least sexy topic in all of computing, but a good backup plan can save you from certain catastrophe. The first line of defense is the automatic backup feature offered by most newer versions of operating systems. (In Microsoft Windows 7, it's a feature in the Control Panel labeled Backup and Restore. In the Mac's OS, the function is called Time Machine.) These applications automatically back up your computer at a preset time, storing the files on another disk (such as an external hard drive, a disk on a network, or a thumb drive). Older versions of the Windows and Mac operating systems don't include an automatic backup feature, but you can buy add-on software that will do the job for you. Programs such as NovaBackup (www.novastor .com), Genie Backup Manager (www .genie9.com), and Acronis Backup & Recovery (www.acronis.com) cost about $50 and can be configured to automatically back up your entire computer at designated intervals. But to make your backup plan truly fail-safe, it's best to have a backup system that's not in the same location as your computer--a backup to your backup. After all, if your computer is stolen or destroyed in a fire, chances are the external drive containing your backup data will also be missing or damaged if it was nearby. The solution: Several services now let you back up your computer "in the cloud," that is, on remote servers that you can access over the Internet. One such service called Mozy (www.mozy.com), prices its monthly plans according to how much storage space you need. Mozy charges $5.99 a month to store 50GB--roughly equivalent to 6 million email messages, 7,500 photos, 8,500 music files or 1,000 videos. A 125GB plan costs $9.99 a month. (CrashPlan (www.crashplan.com) is another service with similar pricing.) Considering the value of all the work sitting on your computer, paying less than ten bucks a month to ensure that it's not lost forever seems like a small price. Plus, you'll never again have to call your computer a spawn of Satan.  

A Better Internet Presence:

Lawyers who wouldn't dream of having a messy or uninviting public entrance to their office often don't apply the same level of care to their Internet presence. But to many would-be clients these days, you are who your website says you are. Lawyers who still don't have any Web presence basically don't exist to anyone under age 35. Having a website is the 21st-century equivalent of having a business card--and you know what you think of people who don't have business cards. (For more on Internet strategies, see "Market Yourself!".) Fortunately, setting up a basic website has never been easier. Google runs a free service called Google Sites (www.google.com/sites) where even attorneys with no coding skills can build a business website. If that's too much hassle, you can hire a web developer to create and maintain a site for you. (Prices vary, but it's not hard to find a developer that will host your site for $10 to $20 a month.) In addition to having a website, you should be a member of a social media site such as LinkedIn. It takes only a few minutes to set up an online profile that colleagues and would-be clients can access; just sketch in your background, areas of practice, and contact information. More ambitious attorneys may want to consider starting a weblog or using Twitter to build up their online presence. But a word of warning: It's better not to blog or tweet at all than to have a languishing blog or Twitter account that hasn't been updated for six months. Of course, your Web presence cuts both ways. If an Internet search for your name turns up information that's unflattering or damaging to your reputation, you may want to check Reputation.com. This service helps you groom your online image--within reason. For $10.95 a month it will manage your online reputation and improve your rankings in Google search results. The price goes up for more difficult tasks, such as suppressing a false or misleading review. Of course, if the information you object to has made its way into major news articles or court records, it's probably on the Internet to stay.  

A Scanner and Online Fax Service:

Let's face it--lawyers murder trees. Tons of paper, millions of trees. It's hard to think of a class of people that are more dangerous to forests than attorneys, except for maybe lumberjacks. And even then, most lumberjacks don't work nights and weekends. It's too late to bring back the trees you've already killed off with all of the paper you go through every week, but the purchase of a good scanner can significantly reduce your culpability going forward. A scanner turns paper documents into electronic files, making the information easier to work with and significantly reducing office clutter. For best results, shop for a scanner that can handle multipage, double-sided scanning, so that virtually any document you come across can easily be converted into an electronic file. (There's more information about going paperless in Practical Tips.) If you also sign up for an online fax service, you'll be able to send and receive electronic documents as faxes without using paper, toner--or a fax machine. Services such as MyFax (www.myfax.com) and GreenFax (www.greenfax.com) charge you $10 to $15 a month for the ability to send and receive faxes through your computer. All you need is an Internet connection and an email account. Of course, some lawyers may round out their must-have technologies list with a smart phone, a laptop, an MP3 player, and that totally super-cool iDrive vehicle control system found only in BMWs. But making sure you have these basics will save you a lot of time, money, and aggravation. Plus, trees won't weep when you whiz past.

LINK >>> California Lawyer - The Must Have

Tuesday, October 18, 2011

'Batman' sentenced to probation, ordered not to wear costume

Mark Wayne Williams, the so-called "Petoskey Batman," has been sentenced to six months probation and is not to wear any costumes during that time, including the one he was wearing when he was arrested in May.

"Mr. Williams completely understands 100 percent why he's here," his attorney Bryan Klawuhn told the court during his sentencing hearing in Emmet County's 57th Circuit Court Monday, Oct. 17. Klawuhn emphasized that Williams did not intend to use the weapons he possessed the night of his arrest and never intended to harm anyone.

Williams, 32, of Harbor Springs, was arrested May 11 after the Petoskey Department of Public Safety received a report of a man on the roof of a downtown business, located in the 400 block of East Mitchell Street, about 12:40 a.m., according to a Petoskey Department of Public Safety news release. Additional information supplied by central dispatch included the fact that the man was dressed as Batman.

Responding officers, including Michigan State Police troopers, saw "a male subject, dressed in a Batman costume, hanging off the western wall of the building," according to the release. The officers got onto the roof and pulled the man back onto it.

Officers detained the man and located a baton-type striking weapon, a can of chemical irritant spray and a pair of Sap (sand-filled) gloves, according to the release. The suspect was arrested for trespassing and possession of dangerous weapons.

In September, Williams pleaded guilty to one count of attempted resisting, obstructing a police officer in Emmet County's 57th Circuit Court and all other charges in the case were dismissed, per a plea agreement, Emmet County prosecutor Jim Linderman previously told the Petoskey News-Review.

Williams originally faced one count of carrying a concealed weapon, for allegedly carrying Freeze Plus P, a felony offense, which carries a maximum penalty of 5 years in prison or a $2,500 fine; one count of carrying a concealed weapon, for allegedly carrying a folding steel baton or bludgeon, a felony offense, which carries a maximum penalty of 5 years in prison or a $2,500 fine; one count of carrying a concealed weapon, for allegedly carrying weighted Sap (sand filled) gloves, a felony offense, which carries a maximum penalty of 5 years in prison or a $2,500 fine; one count of dangerous weapon -- gas ejective device, a felony offense, which carries a maximum penalty of 5 years in prison and, or a $2,500 fine; one count of dangerous weapon -- miscellaneous, for allegedly possessing a bludgeon, a felony offense, which carries a maximum penalty of 5 years in prison and, or a $2,500 fine; one count of dangerous weapon -- miscellaneous, for allegedly possessing a sand bag, a felony offense, which carries a maximum penalty of 5 years in prison and, or a $2,500 fine; and one count of disturbing the peace, a misdemeanor offense with a maximum penalty of 90 days in jail and, or a $500 fine.

Williams experienced a streak of fame after word of his arrest and the circumstances surrounding it spread throughout the community and area businesses touted Batman related promotions and products.

Klawuhn previously told the Petoskey News-Review his client is "harmless."

Emmet County chief assistant prosecutor Duane Beach did not make light of the case, however.

"The conduct in this case caused the Petoskey Department of Public Safety to take this case very seriously," he said.

Williams said he was inspired by a movement of citizens who dress up in super hero costumes and attempt to prevent crime and reach out to the homeless.

"I'm definitely not the only person that does it," he said.

Adding, "I understand I made a big mistake with carrying the items I was carrying. I'm not a violent person at all and I did not intend to use them."

Williams also told the Petoskey News-Review the reason he climbed onto the roof of the downtown Petoskey business that night was because he was being chased by a group of people and was trying to evade them.

"I just didn't want to deal with the harassment, so I hid on the roof," he said.

Circuit court judge Charles Johnson sentenced Williams to six months probation and a condition of that probation is that he is not to wear any costumes. The sentence also included six months in jail, two days forthwith, with credit for two days served, and the remainder held in abeyance.

"You've had your 15 minutes of fame and it's time for you to put it behind you," Johnson told Williams. "Your actions were certainly blown out of proportion in the media in certain ways."

After the hearing Klawuhn said, "We're just happy it's over. ... I think the sentencing is entirely appropriate."

Williams, who considers himself a costumed activist and has been involved with a group of like-minded people called The Michigan Protectors, said the costumes are intended to draw attention to the cause.

"It's just a way to draw attention to what we're trying to do," he said. "Make people pay attention to what's going on in their community."

Saturday, October 15, 2011

Governor signed into law SB221 (Simitian) Increase Small Claims to $10,000

SB 221 (Simitian)
Small claims court: jurisdiction.
Existing law specifies that the jurisdiction of the small claims court includes various actions in which the demand does not exceed $7,500, with specified exceptions.
This bill would increase the jurisdiction of the small claims court by increasing that amount to $10,000, except as specified. The bill, until January 1, 2015, would confer jurisdiction on the small claims court in an action brought for damages for bodily injuries resulting from an automobile accident if the demand does not exceed $7,500, and the defendant is covered by an insurance policy that includes a duty to defend. The bill would also make a technical change by deleting a duplicate code section that contains identical provisions.

LINK >>> California Small Claims Limit increased from $7,500 to 10,000

New California Law Prescribes Stiff Penalties for Employers' Willful Misclassification of Employees as Independent Contractors

Wednesday, October 12, 2011

 On October 9, California Governor Jerry Brown signed into law Senate Bill 459, which prohibits employers from willfully misclassifying workers as independent contractors. The new law, designed to force businesses to rethink their relationship with independent contractors, imposes civil penalties between $5,000 and $25,000 per violation and requires businesses to publicize findings of violations of the new law on their company websites.
The Scope of the Law
The legislation is reflected in newly added Labor Code sections 226.8 and 2753. Section 226.8(a) sets forth the law's objective, stating that it is unlawful for any person or employer to willfully misclassify an individual as an independent contractor. Section 226.8(a) also prohibits businesses from charging fees or making any deductions from compensation for any purpose, including goods, materials, space rental, services, licenses, repairs, maintenance, and fines, when such fees or deductions would have been impermissible had the individual not been misclassified.
Section 226.8(b) sets forth the penalties. For "each" violation, an employer can face a penalty between $5,000 and $15,000, which is in addition to any other penalties permitted by law.
Section 226.8(c) provides the penalty can increase to between $10,000 and $25,000 per violation if either California's Labor and Workforce Development Agency (LWDA) or a court determines that an employer has engaged in a "pattern or practice" of violations.
Section 226.8(d) goes beyond monetary penalties, requiring businesses to publicize a finding by a court or the LWDA that a violation occurred. An employer found in violation must prominently display a notice on its company website (or if the company does not have a website, in an area accessible to all employees and the general public) stating that (1) it has committed a serious violation of the law by engaging in the willful misclassification of employees, (2) it has changed its business practices to avoid further violations, and (3) any employee who believes he or she is misclassified may contact the LWDA (with the LWDA's contact information provided). The notice must be signed by a corporate officer and posted for one year. Licensed contractors under the California State License Law found in violation will be reported to the Contractors State License Board, which will initiate disciplinary proceedings against the offending contractor. (Section 226.8(d)).
Section 226.8 targets successor companies for liability as well. Successor companies are liable for a former entity's acts where one or more of the same principals or officers of the prior company are engaging in the same or similar business. (Section 226.8(h)).
Even an employer's third-party advisors, such as financial, accounting, and human resources professionals, can be jointly and severally liable with the employer for fines and penalties. Labor Code section 2753 further broadens the range of potentially liable parties, extending joint and several liability to any person who, for money or other valuable consideration, knowingly advises an employer to misclassify an individual as an independent contractor to avoid employee status. The joint liability section expressly excludes attorneys providing legal advice and employees providing advice to their employer.
No Express Private Right of Action
Similar to other Labor Code provisions, Section 226.8 establishes the California Labor Commissioner as the law's chief enforcer. The Labor Commissioner may enforce section 226.8 either through Labor Code section 98 (which allows the Labor Commissioner to investigate complaints and conduct hearings) or a civil suit.
Section 226.8 does not expressly create a private right of action for individuals seeking to file a civil lawsuit, nor does the legislative history appear to express any such intent. Based on the California Supreme Court's reasoning in Lu v. Hawaiian Gardens, 50 Cal. 4th 592 (2010), a statutory private right of action under section 226.8 should not exist under these circumstances. However, given the expansive use of California's Private Attorneys General Act (PAGA), which allows a private citizen to pursue civil penalties on behalf of the LWDA provided the formal notice and waiting procedures of the law are followed, businesses should anticipate seeing section 226.8 claims alleged under PAGA. In the end, an individual's right to pursue a claim under section 226.8 may have to be resolved in the courts.
What Labor Code Section 226.8 Means for Businesses That Engage Independent Contractors
The California legislature clearly intends to create a strong disincentive to classify individual workers as independent contractors. Potential civil penalties are high, and could easily reach hundreds of thousands (or even millions) of dollars depending on the LWDA's or a court's interpretation of "each violation," the number of purportedly affected individuals, and the potential finding that an employer engaged in a pattern and practice of willfully misclassifying workers. Given these high stakes, the classification of virtually every worker in California who is currently classified as an independent contractor may need reexamination.
Labor Code section 226.8's ultimate impact will depend on how the LWDA and courts interpret the term "willful misclassification." Section 226.8(i)(4) specifically prohibits employers from "avoiding employee status for an individual by voluntarily and knowingly misclassifying that individual as an independent contractor." Based on the legislative record, this language appears to suggest a heightened standard designed to avoid opening the floodgates to nuisance actions. According to legislative staff comments, the final language, which differed from earlier versions, was intended to require "generally an intentional or voluntary violation of a known legal duty, [which] is a higher test and may make it more difficult to find a violation, thereby constraining the number of enforcement actions." While this "willfulness" standard should provide some protection for businesses under the new law, the standard has not yet been tested, and California courts' prior interpretations of "willfulness" may impact the final definition.
Adding to potential uncertainty, the new law fails to provide a clear and objective test for determining whether an independent contractor is misclassified. Businesses will need to look to the courts for guidance on how the law is applied. In this regard, courts have created, at least in one context, a fact-intensive test to differentiate between an independent contractor and an employee. This test, known as the "economic realities" test, was adopted by the California Supreme Court in S. G. Borello & Sons, Inc. v. Dept. of Industrial Relations, 48 Cal. 3d 341 (1989). While there are many secondary factors, the most significant factor considered is whether the person to whom service is rendered (the employer or principal) has control or the right to control the worker both as to the work done and the manner and means in which it is performed.
This new law will clearly add to the continued scrutiny businesses face in engaging independent contractors. Companies who retain independent contractors must carefully analyze the relationships with these workers to ensure they are properly classified. Given the many relevant factors, legal intricacies, and significant potential penalties for reaching the wrong decision, businesses should seek legal assistance in conducting their evaluation.
The New Law Should Apply Prospectively, With a One-Year Statute of Limitations
The new law does not specifically state either its effective date or the applicable statute of limitations. In the absence of express language indicating the legislature's contrary intent, section 226.8's effective date should be the date that it was signed. The new law increases potential liability to businesses, and California courts have been unwilling to apply such laws retroactively without supporting statutory language. Section 226.8's language further suggests that it will be subject to a one-year statute of limitations. California Code of Civil Procedure section 340 creates a one-year statute for claims for penalties. While there is no time limit for filing complaints with the Labor Commissioner under Labor Code section 98, the Commissioner previously has adopted the same statute of limitations applicable to civil suits. In this case, section 226.8 creates some ambiguity because it references both "penalties" and "damages," the latter of which could arguably carry a longer statute of limitations. Nonetheless, given that this legislation reflects an intent to penalize, the Labor Commissioner likely will apply the one-year statute. Both the effective date and statute of limitations, however, may not be definitively determined until they are challenged in court.
The Federal Government Incentivizes Disclosure and Reclassification
California's new legislation arrives on the heels of the federal government's recent announcement of its intent to incentivize businesses to self-report prior misclassification. On September 19, 2011, the U.S. Department of Labor (DOL) and the Internal Revenue Service (IRS) signed a memorandum of understanding to improve the agencies' coordination on employee misclassification, compliance, and education. As announced by the agencies, this memorandum "will enable the U.S. Department of Labor to share information and coordinate law enforcement with the IRS and participating states in order to level the playing field for law-abiding employers and ensure that employees receive the protections to which they are entitled under federal and state law."
On September 22, the IRS unveiled its Voluntary Classification Settlement Program (VCSP) for workers misclassified as independent contractors. Under this program, eligible employers may voluntarily self-report in order to limit federal employment tax liability for the past nonemployee treatment of workers who should have been classified as employees.
Employers are eligible for this program if they (1) have consistently treated the workers as independent contractors, (2) have filed all required Forms 1099 for the previous three years, and (3) are not currently being audited by the IRS or by the DOL or a state agency for classification of workers. An employer participating in the program must agree prospectively to treat the class of workers as employees, and is required to pay 10% of the employment tax liability that would have been due on compensation paid to the workers for the most recent tax year, but will not be liable for any interest and penalties on the liability. In addition, the employer will not be subject to an employment tax audit with respect to the worker classification of the workers being reclassified under the program for prior years and will agree to extend the period of limitations on assessment of employment taxes for three years.
IRS VCSP Presents a Dilemma for California Businesses
The IRS's VCSP creates a quandary for California businesses that are evaluating the possibility of reclassifying independent contractors as employees. Indeed, businesses may be concerned that seeking the tax benefits of the IRS's VCSP could operate as an admission of liability for purposes of California Labor Code section 226.8. Thus, while availing itself of the safe harbor offered under the IRS's program, an employer could still be exposing itself to a year's worth of penalties under the new California law. California businesses that are considering voluntary classification under the IRS's program should seek legal counsel to assist in understanding the potential implications.
Given the clear state and federal interest in weeding out independent contractor misclassification, this is a critical time for businesses to take a careful look at their independent contractors to confirm that they are properly classified.
Copyright © 2011 by Morgan, Lewis & Bockius LLP. All Rights Reserved.

 LINK > New California Law Prescribes Stiff Penalties for Employers' Willful Misclassification of Employees as Independent Contractors

Thursday, October 13, 2011

Justices struggle for clarity on prison strip searches

By Bill Mears, 

CNN Supreme Court Producer 

updated 2:13 PM EST, Wed October 12, 2011

Washington (CNN) -- A New Jersey man who was strip searched in prison after being accused of failing to pay a traffic fine received a somewhat chilly reception from an often perplexed Supreme Court Wednesday.
During a brisk hour of oral arguments, the justices struggled to get a clear answer from lawyers over whether and when a "reasonable suspicion" standard could be applied before conducting examinations of newly admitted prisoners. Albert Florence said he was subjected to what he called a pair of intrusive, humiliating searches six years ago.
"What we're trying to do is to protect the individual dignity of the detainee. But it seems to me that you risk compromising that individual dignity if you say we have reasonable suspicion as to this inmate, but not as to that inmate. You are just setting us up" for further legal challenges, said Justice Anthony Kennedy. "So it seems to me that your rule imperils individual dignity in a way that the blanket rule does not."
Florence is challenging Burlington County rules allowing routine strip searches of everyone arrested, even for minor offenses, regardless of the circumstances.
The man was a passenger in his family's sport utility vehicle when it was stopped by a New Jersey state trooper in March 2005. His then-pregnant wife was driving and their 4-year-old son was in the back seat as they headed to a Sunday dinner.
Since Florence was the vehicle's registered owner, the officer ran his identification and discovered a bench warrant for an outstanding fine. He had already paid the fine and carried a letter attesting to that fact, since he claimed he had been stopped on several previous occasions. Nevertheless, the 35-year-old Bordentown resident was handcuffed and arrested, then taken to the jail in Burlington County, in the central part of the state.
Court records show Florence was subjected to an invasive strip and visual body-cavity search. He was then held for six days in the county lockup before being transferred to a Newark correctional facility, where, he claims, he was subjected to another more intrusive search before being placed in the general prison population.
"It was very disgusting. It was just a bad, bad experience," he told CNN Correspondent Kate Bolduan recently. "I was just told, 'Do as you're told.' Wash in this disgusting soap and obey the directions of the officer who was instructing me to turn around, lift my genitals up, turn around, and squat."
The next day a magistrate freed Florence, confirming what he had insisted all along, that the fine had been paid.
Florence then sued, claiming the search protocols violated his Fourth Amendment rights, since neither jail reasonably suspected he presented a security threat, or was smuggling contraband. But a federal appeals court in Philadelphia last year ruled the blanket search policy proper.
During intense oral arguments at the high court, Florence's lawyer, Thomas Goldstein, struggled to articulate a workable legal standard where strip searches would be allowed but not required under law.
"So what is permitted?" asked Justice Ruth Bader Ginsburg repeatedly. "What, is showering in the presence of officers" all right?
"Are you suggesting three different levels" of permissible searches, followed Justice Sonia Sotomayor. "Stripping naked: It's OK (for officers) to stand five feet away, but not two?"
When Goldstein offered a layered explanation, Sotomayor told him flatly, "I'm still unsure."
"There's a distinction between the simple strip search and the visual body cavity search," said Chief Justice John Roberts. "You say that they apply reasonable suspicion standard to the visual body cavity search. So is the visual cavity search therefore off the table" for simple, non-violent offenses.
Justice Samuel Alito wanted to know whether a general strip-search policy to prevent the spread of head lice would be acceptable. Goldstein suggested it would be proper.
But the more scenarios the bench offered, the less certain they appeared to offer a bright-line rule in their eventual ruling. "How do you want us to write this so that jail personnel all over the country have to be able to follow it and know exactly what they are supposed to do," said Justice Steven Breyer, speaking for many of his colleagues.
Goldstein urged the court to rely on earlier precedent forcing jailers to use individualized discretion before searching inmates. "If the jail has the facts, as it did here, to affirmatively determine that there is no reasonable suspicion, which is what they decided about Mr. Florence," he said, "then it is an extraordinary intrusion on dignity and autonomy to strip him naked when they have no reason to do so."
But the county's attorney, Carter Phillips, said prison officials know their security system best. Noting that jail is "without question one of the most dangerous, most risky environments," he said he hoped the court would not ask "individual jailers to make decisions where they clearly will not have the kind of information" they would need and "where if they make a judgment wrong in either direction, all it means is litigation."
Sotomayor again was unconvinced. "So why do we change the policy" that has been in place in prisons around the country for decades, she asked, citing high court precedent.
"Even though there were searches, contraband still got in. So virtually every circuit (appeals court) in practice in the federal system has been following this 'reasonable suspicion' for minor crimes and they have been fairly successful. So why do we change the constitutional rule to let them (prisons) do more?"
Federal courts before the September 11, 2001, terror attacks had been at odds over the constitutionality of strip searches. The Constitution's Fourth Amendment protects against "unreasonable searches and seizures."
The Supreme Court in 1979, in what is called the Bell precedent, upheld the kind of search Florence had undergone for prisoners who had contact visits with outsiders. Using a balancing test, the justices said the prison's security interest justified intrusion into the inmates' privacy. But subsequent appeals courts have found those arrested for minor offenses may not be strip searched unless authorities have a "reasonable suspicion" that the person may be concealing a weapon or contraband such as drugs.
In 2008, however, appeals courts in Atlanta and San Francisco found searches of every inmate coming into the prison population are justified, even without specific suspicions. Those opinions were the first of their kind since the 9/11 attacks and, along with Florence's case, now give the high court the chance to clarify an issue that a number of civil and human rights proponents have tried to highlight.
Local jails in New Jersey at the time of Florence's arrest were subject to federal monitors after allegations that minority motorists and their passengers were being unfairly targeted for police stops and arrests, sometimes called "racial profiling." Stops of that nature are not at issue in the current appeal. Florence, who is African-American, is not alleging any racial discrimination by the state or individual officers.
The case is Florence v. Board of Chosen Freeholders of the County of Burlington, New Jersey (10-945). A ruling is expected sometime before June.

LINK > Justices struggle for clarity on prison strip searches

Wednesday, October 12, 2011

Underwear Bomber Pleads Guilty - PRECISELY the Reason Mom always says, "Make Sure You have Clean Underwear On!"

Umar Farouk Abdulmutallab, the man accused of trying to blow up Northwest Flight 253 on Christmas Day 2009 with a bomb in his underpants, changed his plea to guilty on all counts before saying he did it "to avenge the killing of my Muslim brothers and sisters."
After consulting with his lawyer, the "underwear bomber" was once again read the charges against him in a Detroit court today and after each one, he told the judge, "I plead guilty."
"The Koran allows every Muslim to undertake jihad," Abdulmutallab told the court after changing his plea. "I carried the device to avenge the killing of my Muslim brothers and sisters... Unfortunately, my actions make me guilty of a crime."

Abdulmutallab called the failed explosives he had hidden in his underwear a "blessed weapon" and said he attempted to use it "because of the tyranny of the United States."
Abdulmutallab had originally pleaded not guilty to all charges, including attempted murder and attempted use of a weapon of mass destruction, but apparently changed his mind since the prosecution completed their opening arguments Tuesday.
Prosecutors said Abdulmutallab attempted to ignite explosives hidden in his underpants on Christmas Day in 2009, but the device failed to explode and Abdulmutallab was subdued by other passengers aboard the plane. After the incident, Abdulmutallab allegedly told Customs and Border Protection officer Marvin Steigerwald that he obtained the device in Yemen and that he hid it in his underwear. When he was questioned later by two FBI agents, Abdulmutallab said he went to Yemen to become involved in jihad and that he was influenced by a man named Abu Tarak to undertake a suicide operation, investigators said.

Intelligence officials said that while in Yemen, Abdulmutallab also met with high-profile al Qaeda recruiter Anwar al-Awlaki, who was killed in a CIA drone strike last month.
In his statement today, Abdulmutallab said that he was "greatly inspired" by Awlaki and said Awlaki is still alive.
Abdulmutallab said "Allahu Akbar," or "God is Great", as he was led out of the court.
The court case was expected to shed light publicly on Abdulmutallab's relationship with Awlaki and possibly details on Awlaki's role within al Qaeda in the Arabian Peninsula, a dangerous affiliate of al Qaeda based in Yemen.
An attorney working with Abdulmutallab, Anthony Chambers, told reporters it was Abdulmutallab's decision to switch his plea even though Chambers disagreed.
"No lawyer worth his weight in salt would agree," Chambers said. "I thought the evidence was lacking... I don't think there was any damage to that plane."
Abdulmutallab will be sentenced Jan. 12, 2012.

Underwear Bomber pleads guilty

OC Register: State outlaws practice of seizing cars of sober, unlicensed drivers

The problem with the OC Register article regarding vehicle impound legislation below and the research the legislation is based on, is that they're politically driven giving partial truths and not based on all the facts.  Here is a study by the Triple A - Foundation for Traffic Safety. 



Deadly Crashes Often Involve Invalidly Licensed Drivers, AAA Foundation Study Shows

Drivers who do not have valid licenses are involved in 20 percent of fatal crashes, a new study from the AAA Foundation for Traffic Safety shows. "One fatal crash in five involves a driver who is not properly licensed," says David Willis, President of the AAA Foundation for Traffic Safety. "These scofflaws pose a serious threat to law-abiding motorists."
The study was performed by Dr. Lindsay Griffin of the Texas Transportation Institute, who used crash data from the Department of Transportation’s Fatality Analysis Reporting System. "Drivers operating on invalid licenses at the time of their fatal crashes are different from the rest of us," Dr. Griffin says. "Not only were their licenses invalid, but 28 percent of them had received three or more license suspensions or revocations in the three years before their crashes. These are not just ordinary people who forgot to renew."
Dr. Griffin examined five years of fatal crash data, identifying each driver’s license status. Drivers with invalid licenses were far more likely to have been driving drunk and to have had multiple suspensions or revocations in the three years before the crash. In addition, the incidence of improper licensing varied widely by state. Maine had the lowest incidence, with 6.9 percent.
AAA Foundation for Traffic Safety Page Two The state with the highest proportion of invalidly licensed drivers was New Mexico, where 23.9 percent of all drivers involved in fatal crashes were either unlicensed, operating on an invalid license, or of unknown license status. .... Other high-risk jurisdictions included the District of Columbia, Arizona, California, and Hawaii. An earlier study by Streff and Eby found that 30 to 70 percent of drivers whose licenses have been suspended or revoked may continue to drive, Griffin said.
What can be done to combat this scourge? "Unlicensed drivers need to be prevented from driving," says Willis. Vehicle immobilization or impoundment for drivers who have had their licenses taken away could be one effective approach, the study suggests. Another promising high-tech solution is an electronic "smart-card" driver’s license. This credit card-like device contains a computer chip, without which a car can’t be started. If the license is taken away by the licensing agency, the violator would be prevented from driving.
The AAA Foundation for Traffic Safety is a not-for-profit charitable organization funded by donations from AAA and CAA clubs and members. Its safety education programs include teen driver education; antilock brake (ABS) safety; drowsy driving; aggressive driving and road rage; and older driver safety. Located in Washington, D.C., the Foundation has been devoted to preventing crashes and saving lives through research and education since 1947. Visit the Foundation's web page at http://www.aaafoundation.org for more information about its activities.




State outlaws practice of seizing cars of sober, unlicensed drivers

October 11th, 2011, 12:42 pm · · posted by Chris Knap, Editor, Government, Politics and Investigations

A controversial DUI checkpoint practice that has generated tens of millions of dollars for California police agencies has been outlawed by the state legislature and Gov. Jerry Brown has signed off on the reform.
The practice–impounding the cars of unlicensed drivers for 30 days–has little or nothing to do with impaired driving.  Sober drivers trapped in the net of the checkpoints who are not able to prove they have a valid license have had their car impounded for 30 days.  It’s no surprise that the vast majority of those drivers are illegal immigrants who are not allowed to obtain a drivers license in California.
This 2010 investigation by Ryan Gabrielson, a U.C. Berkeley Investigative Reporting fellow who now works with California Watch, found that impounding the cars has become the prime activity at the checkpoints, despite their DUI moniker: In 2009 police officers in California impounded more than 24,000 cars and trucks at checkpoints,  roughly seven times more than the 3,200 drunken driving arrests.
It’s a widespread, unsavory and apparently illegal practice that flies in the face of the law: In 2005 the Ninth U.S. Circuit Court of Appeals ruled that police can not impound a car just because a driver is unlicensed, Gabrielson found.Caught between thousands of dollars in storage fees and the fear of being deported, many drivers just walked away from their seized cars, generating more profits for the towing companies–which were then shared with the police agencies.
In 2009 the impounds generated $40 million in towing fees and police fines, Gabrielson estimated, revenue that cities divide with towing firms.  Not coincidentally, police officers received about $30 million in overtime pay for the “DUI” crackdowns, most of them funded by the California Office of Traffic Safety.
On Sunday, Brown signed AB 353, which specifically prohibits police at checkpoints from seizing a car solely because the driver is unlicensed. Sponsored by Assemblymen Gilbert Cedillo, D-Los Angeles and Michael Allen, D-Santa Rosa, the new law gives unlicensed motorists time to find a legal driver and avoid impound.
Police can still ticket the driver for unlicensed driving.
If the driver can’t find a legal driver and the car remains at the checkpoint when the operation ends, police can have it towed and held for a short time, the bill says.  Vehicle owners still must pay city release fees, plus tow and storage charges to retrieve those cars.   But the costs probably will total a few hundred dollars, rather than a few thousand from a 30-day impound, Gabrielson reports today.
The new law, or, one could say, the statutory recounting of what the law already said but police were ignoring, goes into effect Jan. 1.
You can read more about the new law at Gabrielson’s California Watch post.
His original investigation is here.

Calif. Governor Veto Allows Warrantless Cellphone Searches

Calif. Governor Veto Allows Warrantless Cellphone Searches

California Gov. Jerry Brown is vetoing legislation requiring police to obtain a court warrant to search the mobile phones of suspects at the time of any arrest.
The Sunday veto means that when police arrest anybody in the Golden State, they may search that person’s mobile phone — which in the digital age likely means the contents of persons’ e-mail, call records, text messages, photos, banking activity, cloud-storage services, and even where the phone has traveled.
Police across the country are given wide latitude to search persons incident to an arrest based on the premise of officer safety. Now the nation’s states are beginning to grapple with the warrantless searches of mobile phones done at the time of an arrest.
Brown’s veto message abdicated responsibility for protecting the rights of Californians and ignored calls from civil liberties groups and this publication to sign the bill — saying only that the issue is too complicated for him to make a decision about. He cites a recent California Supreme Court decision upholding the warrantless searches of people incident to an arrest. In his brief message, he also doesn’t say whether it’s a good idea or not.
Instead, he says the state Supreme Court’s decision is good enough, a decision the U.S. Supreme Court let stand last week.
“The courts are better suited to resolve the complex and case-specific issues relating to constitutional search-and-seizure protections,” the governor wrote.
Because of that January ruling from the state’s high court, the California Legislature passed legislation to undo it — meaning Brown is taking the side of the Supreme Court’s seven justices instead of the state Legislature. The Assembly approved the bill 70-0 and the state Senate, 32-4.
The bill’s sponsor, Sen. Mark Leno (D-San Francisco), was flummoxed by Brown’s action. “It was a curious veto message suggesting that the courts could resolve this more effectively than the state Legislature,” he said in a telephone interview.
Under California statehouse rules, neither Leno nor any other lawmaker may introduce the legislation for at least a year.
Orin Kerr, one of the nation’s leading Fourth Amendment experts, said Brown should have backed the state’s Legislature. “I think Governor Brown has it exactly backwards. It is very difficult for courts to decide Fourth Amendment cases involving developing technologies like cellphones,” he said.
In 2007, there were 332,000 felony arrests in California alone — a third of which did not result in conviction.
Brown’s veto also shores up support with police unions and the Peace Officers Research Association of California, a police union that opposed the legislation and recently donated $38,900 to Brown’s campaign coffers. “Restricting the authority of a peace officer to search an arrestee unduly restricts their ability to apply the law, fight crime, discover evidence valuable to an investigation and protect the citizens of California,” the association said in a message.
That support would be key if Brown decides to seek a second term.
In the last year alone, at least seven police unions donated more than $12,900 each to Brown. Those unions, including the California Association of Highway Patrolmen and the Sacramento County Deputy Sheriff’s Association, had given Brown more than $160,000 in combined contributions.


Monday, October 10, 2011

AB 22 - Credit Report Use for Pre-Employment Purposes (Mendoza)

AB 22 (Mendoza)
Employment: credit reports.
The federal Fair Credit Reporting Act (FCRA) and the state Consumer Credit Reporting Agencies Act define and regulate consumer credit reports and authorize the use of consumer credit reports for employment purposes, pursuant to specified requirements. The FCRA provides that it does not preempt state law, except as specifically provided or to the extent that state laws are inconsistent with its provisions.
Existing federal and state law specify the procedures that an employer is required to follow before requesting a report and if adverse action is taken based on the report. Existing federal law provides that, subject to certain exceptions, an employer may not procure a report or cause one to be procured for employment purposes, unless prior disclosure of the procurement is made to the consumer and the consumer authorizes the procurement, as specified. Existing federal law further requires, subject to certain exceptions, an employer, before taking any adverse action based on the report, to provide the consumer with a copy of the report and a written description of certain rights of the consumer.
Under existing state law, an employer may request a credit report for employment purposes so long as he or she provides prior written notice of the request to the person for whom the report is sought. Existing state law also requires that the written notice inform the person for whom the consumer credit report is sought that a report will be used and of the source of the report and contain space for the person to request a copy of the report. Existing state law further requires an employer, whenever he or she bases an adverse employment decision on information contained in a consumer credit report, to advise the person for whom the report was sought that an adverse action was taken based upon information contained in the report and provide the person with the name and address of the consumer credit agency making the report. A consumer who suffers damages resulting from a violation of these state law provisions may bring a court action to recover monetary damages, as specified, but no person is liable for the violation if he or she shows reasonable procedures were maintained to assure compliance with the provisions, as specified.
This bill would prohibit an employer or prospective employer, with the exception of certain financial institutions, from obtaining a consumer credit report, as defined, for employment purposes unless the position of the person for whom the report is sought is (1) a position in the state Department of Justice, (2) a managerial position, as defined, (3) that of a sworn peace officer or other law enforcement position, (4) a position for which the information contained in the report is required by law to be disclosed or obtained, (5) a position that involves regular access to specified personal information for any purpose other than the routine solicitation and processing of credit card applications in a retail establishment, (6) a position in which the person is or would be a named signatory on the employer’s bank or credit card account, or authorized to transfer money or enter into financial contracts on the employer’s behalf, (7) a position that involves access to confidential or proprietary information, as specified, or (8) a position that involves regular access to $10,000 or more of cash, as specified.
This bill would also require the written notice informing the person for whom a consumer credit report is sought for employment purposes to also inform the person of the specific reason for obtaining the report, as specified.

Monday, October 3, 2011

FTC Shuts Down Debt Collection Agency


FTC Shuts Down Debt Collection Agency

The Federal Trade Commission announced Friday that at its request, a U.S. district court has halted an operation that allegedly subjected consumers to abusive debt-collection practices and deceived the small-business clients for whom it collects.  The order also freezes the operation’s assets and appoints a permanent receiver to run it while the FTC moves forward with the case.
As part of its continuing crackdown on scams that target consumers in financial distress, the FTC filed a complaint against six individuals and three companies involved in a Van Nuys, California-based debt-collection operation doing business as Rumson, Bolling & Associates.
The FTC complaint charges that the defendants, in collecting debts on behalf of their clients:
  • harassed and abused consumers by threatening physical harm and death to them and their pets, threatened to desecrate the bodies of deceased relatives, and used obscene and profane language;
  • improperly revealed consumers’ debts to third parties, such as the consumers’ employers, co-workers, neighbors, and family members;
  • falsely threatened consumers with lawsuits, arrest, seizure of their assets, or wage garnishment; and
  • falsely claimed that consumers would be liable for legal fees incurred in the collection of the debt.
According to the FTC complaint, using the slogan “no recovery, no fee,” the defendants promised small businesses and other potential clients that they would collect debts on contingency, charging a fee only when they successfully collected a debt.  But in many cases, the defendants allegedly collected money from consumers on a client’s behalf and then kept more than they were entitled to, sometimes keeping all the money for themselves, instead of forwarding what was owed to the client.  In some cases, the defendants asked clients for additional fees, purportedly for legal expenses in filing a lawsuit that would “guarantee” the successful collection of a debt.  Many clients paid these fees, but the defendants failed to file the promised lawsuits and the clients never received any money in satisfaction of the debt in question.
The FTC charges that these practices violate the Federal Trade Commission Act and the Fair Debt Collection Practices Act (FDCPA).
The FTC thanked the Better Business Bureau of Ventura, Santa Barbara, and San Luis Obispo Counties (California) and the Better Business Bureau of the Southland, in Southern California, for their assistance in bringing the case.
The Commission vote authorizing the staff to file the complaint was 5-0.  The FTC filed the complaint and the request for a temporary restraining order in the U.S. District Court for the Central District of California on September 12, 2011.  On September 13, 2011, the court granted the FTC’s request for a temporary restraining order with an asset freeze and the appointment of a temporary receiver. On September 27, 2011, the court granted the Commission’s request for a preliminary injunction and an order continuing the asset freeze and appointing a permanent receiver.
The complaint names as defendants Forensic Case Management Services, Inc. (doing business as Rumson, Bolling & Associates, FCMS, Inc., Commercial Recovery Solutions, Inc., and Commercial Investigations, Inc.), Specialized Recovery, Inc. (doing business as Joseph, Steven & Associates and Specialized Debt Recovery), Commercial Receivables Acquisition, Inc. (doing business as Commercial Recovery Authority, Inc. and The Forwarding Company), David M. Hynes II, James Hynes, Kevin Medley, Heather True, Frank E. Lindstrom, Jr., and Lorena Quiroz-Hynes.