We’ll be wrestling with a lot..but we can’t be the heels. (Or why we have to cut some slack to the Orange Julius in the White House)

You probably figured out by now that I am not a fan of the current POTUS. It is not a partisan thing since I have voted for Republicans for numerous offices, including President. It is for much deeper, more visceral reasons.

Based on what I have seen, he is a jackass. He is, to a large degree, a narcissistic twit. He is a whiny bitch and a petulant bully. he may even be an unknowing Russian asset. And the howls for his impeachment grow daily.

But, let’s save the impeachment talk until there is something impeachable to use against POTUS45. And so far, there just is not a thing that qualifies at all.  And that makes those howls scary. Continue reading “We’ll be wrestling with a lot..but we can’t be the heels. (Or why we have to cut some slack to the Orange Julius in the White House)”

Wrestling with a Judicial Smackdown or ‘Trump gets thumped’*

*Truth be told, it is not that big of a thumping but I have been itching to use that headline and get it over with.

As you may know, today a 3-judge panel for the 9th Circuit of the Federal Court unanimously denied the Trump administration’s emergency motion for a stay of the Temporary Restraining Order issued by Judge Robart last week. You may have caught it on the news. Let us take a moment to examine some of the Order by the Court and parcel out what they meant from what they said. This kind of translation will hopefully help those who got their law degrees from Twitter and Facebook.

What they said : Continue reading “Wrestling with a Judicial Smackdown or ‘Trump gets thumped’*”

Wrestling with Poor Witness Prep

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Let’s face facts. We are all ignorant of something. It is impossible not to be. There are far too many things in this world we can learn and far too little time to learn it. There is no real shame in that. And there is no shame in choosing to be so immersed and knowledgeable in some things that you can not conceivably be knowledgeable in something else. No shame at all.

But, where there should be some shame is not being knowledgeable at all and allowing that ignorance to serve as some kind of accomplishment while you disparage those with actual knowledge. And that brings us to the nominee for Secretary or Education, Betsy Devos. A level of ignorance and shame more profound than when Jim Herd wanted to change Ric Flair into “Spartacus”[1] Continue reading “Wrestling with Poor Witness Prep”

Wrestling with Respect

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“It’s not what you say, but how you say it”-Sherry Anderson (1943-2016) 
My mother used to tell me this in regards to HOW we would argue, which we were both very good at and sometimes very bad at. I think of that because today I had a phone call from an old friend who I often disagree with on political issues and such but it’s always a fun and enjoyable conversation. It’s never vicious. Maybe part of that is because I know he knows his s***.
 

Continue reading “Wrestling with Respect”

Wrestling with Brock and Sentencing (or Let’s abuse the ref)

Today we start our series looking  at the Brock Turner Sexual Assault Case by examining both Judge Aaron Persky’s sentencing of Turner to Six months jail time and the public reaction to the sentencing. In terms of sentencing, Judge Persky’s decision to sentence of six months jail time, along with lifetime sex offender registration, and three years probation have come under serious fire. It has even sparked an online petition for the removal of Judge Persky with signatures from all over the nation. People calling this a sign of how none of this is taken seriously. And it all raises a serious question:

Have you lost your minds?  Continue reading “Wrestling with Brock and Sentencing (or Let’s abuse the ref)”

Wrestling with Brock (not the entertaining one. The rapist).

Yes, I said it. I called Brock Turner , former “All-American” swim star, a rapist. Though he was never convicted of rape, it was not for lack of trying. He was found on top of a semi-conscious or unconscious woman when two male students approached, wondering just why there were two half-naked people behind a dumpster with only one of them seeming to be involved in this tryst. And then Turner ran but was caught by these two men who clearly felt Turner had some explaining to do.

By now, you probably know the story. The victim, a fellow student, by her own admission, was intoxicated. Blitzed. Bombed. Three sheets to the wind. I could go on and come up with a slew of descriptions. She never denied it, never tried to portray herself as the sainted lady of Stanford. She had little to no memory of anything that happened. The Defense made her lack of memory a key part of their defense and their points of attack and they should have (more on that later).

But, in the end, it was  unsuccessful in the trial phase.  The jury was convinced beyond a reasonable doubt that Turner had indeed committed the three alleged violations of the law. The conviction is not that surprising because, as we say these are “bad facts” for the defense and “great facts” for the prosecution. Two witnesses, with no known connection to either Turner or the victim, testified to seeing him in the act and run when they approached. (Quick sidenote fellas: If you and a lady are getting it on outside and two guys come upon you, your first instinct might be to tell her “Let’s go” and gather your clothes and yourselves and leave. If you leave her there, possibly vulnerable to two more guys, it’s going to be very hard to believe she was a willing participant and impossible to believe you are not a classless coward of the first order).  A conviction was almost a foregone conclusion. But it was not the verdict that has created the outcry here. It was the sentencing and the reactions of some people to said conviction and sentencing.

And some of those reactions, while understandable are wrong. And some of those reactions are also right.

So as to not take up too much time today, Friday we will start a series we are doing on the Turner matter and its broader impact.

-I will address the Sentencing and why efforts to recall the Judge show less of an interest in “justice” than people think;

-I will address how the outrage against lawyers in sexual assault cases is misplaced and shows a terrible misunderstanding of how the law works and why;

-I will address the very real danger of sexual assaults and how the law deals with it, including addressing false accusations (though the Turner matter is about as far from a false accusation case as they come);

Before that series begins there is something of importance that merits remembering. It has been said that women getting drunk at parties or alone in a guy’s room are like keeping the keys in the ignition of their unlocked car or leaving your house unlocked. And there may be some truth to that. But where the arguments fails is that if one leaves their keys in the ignition of their unlocked car, it does not just magically leave. A thief HAS to take advantage of the opportunity to be a thief. If you leave your house unlocked, someone still has to go into the house and commit burglary or a slew of other offenses. So, logic would tell us that to sexually assault a drunk person, it requires someone willing to sexually assault someone. Someone willing to take that next step. Unfortunately, that is what it takes to get accused of such an act. That takes less. But to actually do it? At some level, someone’s mind has to be committed to ignoring the humanity of the person in front of them.

I have known many guys, hell I have been one of those guys, who thinks he might be getting lucky tonight, then the young lady has succumbed to alcohol, and he realizes “I guess I am not getting lucky tonight” and so he calls it a night. He makes sure she gets home safe or he lets her sleep in his bed while he takes the couch or floor or he leaves, if it’s not his place. Again, it seems obvious and I can not imagine having that conversation with a young man, telling him, “oh and by the way if she passes out, don’t try to get sexual on her” because it seems so self-evident. According to several people who speak of “rape culture”, maybe it is not so self-evident and we need to have some serious conversations with our boys and young men. Even scarier is that it is self-evident, and so many just do not care.

But, on the other hand, who wants to tell anybody just waking up that she (or he) has been violated and it could have been even worse?

 

Wrestling with Brady (and why you should stop crying over it)

And so it begins again. All the way from the far reaches of the great halls, taverns, pubs, trains, highways and byways of New England come the howls of its’ citizens. With anger not seen in New England since Grady Little left Pedro Martinez in a little too long in the ALCS, the residents of the Hub of the Universe and its surrounding burbs and towns are up in arms. This time, because a three-judge panel from the Second Circuit Court of Appeals has ruled in a 2-1 decision that Tom Brady will have his four-game suspension from the “Deflategate” Scandal reinstated. Yes, that Tom Brady, the fantasy baby’s daddy of half of New England (and actual baby’s daddy of who knows how many) is suspended again. For now. And like it or not, it is entirely justified.

Right about here, is where the folks come in who will scream, “But, Brady didn’t do anything!” Except, of course, he did do something. And what he did hurt him. But that is not why the reinstating of the suspension is justified. No, it is justified because the players screwed themselves.

Continue reading “Wrestling with Brady (and why you should stop crying over it)”

Sick and tired of being Sick and tired

The headline for this post is an old one. For many people, it won’t be familiar. But, if you study enough history, you know where it became famous. But before we do the reveal, let’s start with a simple story.
Continue reading “Sick and tired of being Sick and tired”

Why #bluelives matter is the wrong phrase and the wrong cause (Part 1 of 4)

“I knew he had crossed the line to where I could have used deadly force, but I just felt that, you know, just because you can take a life, it doesn’t mean you should.”–  New Richmond, Ohio Police Officer Jesse Kidder

Recently, we have seen an uptick in the reporting of deaths and abuse by unarmed individuals, usually black men, at the hands of law enforcement officials or law enforcement wanna-bes. And the responses have become pretty routine. From some circles come the cries “We told you this was happening” followed by “No justice. No Peace”. Then from other circles come the cries of “He was asking for it”. Back and forth it goes. But, there is one series of responses that I find both fascinating and troubling. Silence. And it’s a silence not based upon lack of thought but based upon the premise that the life of a law enforcement officer is more valuable than the life of anyone else no matter what. And that is a recipe for disaster.

THE BACKGROUND

Before some start shouting that I am just “anti-cop” we need to remember a few facts. I come from a family that has cops in it, including those harmed while doing the job. I lived with a corrections officer for over a year. I was a prosecutor in two different states where I worked closely with law enforcement personnel and gained a reputation as being an aggressive prosecutor protective of law enforcement. I also was the primary attorney defending law enforcement personnel against accusations of violating the civil rights of citizens. I recall a childhood friend, Roy Wade, one of the nicest and most giving men you could ever hope to meet, becoming a Long Beach police officer and being shot and seriously injured very early in his career during a routine matter. So, I am very familiar with that world. This is not about being anti-cop. But it is about questioning how far being “pro-cop” should go.

THE MEASURE

With recent riots or uprisings or whichever phrase suits your palate, the same responses come back over and over. There are people condemning what they call the social failings of the inner city (code for black) communities. Of course, if these failings exist, they were there long before the riots, right? If there is a “disrespect for law and order” it was there long before the riots, right? And yet, these riots do not happen every day. In other words, the same ingredients and factors exist every day yet nothing happens. So what changes? The presence of “thugs”? Again, if those “thugs” and thugs (real thugs do exist. Including those who are often idolize and emulate the Sopranos and Sons of Anarchy), then why are there no daily riots, weekly, monthly or annual riots? What changed?

Someone unarmed is killed by a governmental operative under color of authority of law. That is what happened. These protests do not start when the police kill armed suspects. Almost everybody understands those killings.  It’s the unarmed ones that raise questions.

It’s the man shot when he made no threatening statements or movements and had his wallet in his hand.

It’s the mentally ill man whose crime was knocking on several doors and not complying with the officer’s commands. He wasn’t carrying a weapon. Considering he was naked, he was not carrying much of anything.

It is the guy who reached for an officer’s gun (never a wise move at all), did not get it, was tased and then shot by four officers. Again, he was unarmed at the time he was shot.

It’s the unarmed people shot in the back while running AWAY from the police.

It’s the guy shot for throwing rocks. For heaven’s sakes, the Israeli army faced that for years and showed greater restraint.

It’s the guy shot in the back while laying face down.

It’s the guy in his pajamas, shot while holding a spoon.

It’s the 12-year-old with toy gun who was shot immediately when the police arrived. No discussion, no warnings, just immediately shot and in direct contradiction to the officer’s accounting of what happened.

It’s the unarmed, handcuffed individuals who mysteriously are able to take guns and shoot themselves in the back of the head.

It is the man, shopping in an Ohio Wal-Mart, holding a BB gun he had picked up off a store shelf. Did I mention that Ohio is an “open carry” state? So, even if it had been a real gun, there was no crime or threat of a crime. Again, the police shot him immediately. Though, as you may have guessed, that is not what they wrote in their reports.

It’s the guy shot while running AWAY from the police.

It’s the person who dies while in police custody under questionable circumstances.

It’s the man shot by the cop who can’t tell the difference between his taser and his firearm.

And this happens and will happen over and over again because we believe that its more important for a police officer to come home no matter what than it is for someone else to come home alive. And when you have friends and family that are cops, it is an easy mindset to have. It’s an understandable mindset to have. But on a societal level it is a dangerous one. Because you have decided that even when an officer is wrong, it is ok. In the above examples, an officer could be right or could be wrong, but to many people it does not matter. All that matters is that the officer survived and protected “society”.

And that is not just a current trend. Historically, the poor, the disenfranchised, the non-white have always mattered less. In both law and tradition, those lives mattered less to society. Just another dead nigger. Just another dead spic. Or the popular NHI.

What’s “NHI”? It means “No humans involved” It’s a phrase oft used by police, judges, and yes prosecutors (full disclosure, I am quite sure I said it myself) in reference to a crime where both victim and suspect are less than desirable. Usually members of the underclass. Often junkies or homeless. You know, people, who still have a right to live to avail themselves of the justice system.

Historically, crimes against those people, especially when committed by the police, did not matter. They were swept under the rug. No fanfare, no investigations, just turning and burning. Few resources allocated. And that history is a long one. Certainly some places have responded better than others, but it still happens. Protests form designed to get the powers that be to care. To get them to act. And while the acts may not always end up in justice being served, the outcomes are always easier to accept when you feel that those in position of authority and society as a whole gave enough of a damn to take a second look.

WHERE BLM IS WRONG
So when somone points out that yes, the lives of people in their communities do matter we inevitably now get the postings on social media of “#bluelivesmatter” and the screaming of how police lives matter, as if this is somehow a new and radical thought. This would be understandable except for one glaring problem?

At what time in our history have we ever acted like police lives don’t matter? I sure can not think of one.

When an officer is so much as injured, other officers respond swiftly and often with brutal and sometimes deadly force. And very little if any investigation is ever given to those circumstances. Because we have held to the idea that if you hurt a cop, you deserve any retribution that comes next.

When an officer is killed on duty, even when the death itself is not exactly “heroic”, we praise the officer as a hero. One of our finest and a host of other platitudes. We offer a funeral with full honors, often attended by other officers from other departments in a sign of solidarity. If a suspect in the killing is at large they find the full extent of the law enforcement resources pointed right at them. And if a suspect is caught, no (legal) stone goes unturned in trying to convict the accused. In some cases, that effort has gone so far as to intentionally hide evidence from the defense in more than one documented case. This may lead some reading to say, “well there are always some bad apples” while ignoring that you can throw out bad apples. For decades, throwing out “bad” cops has been much harder to do.

There are statues and memorials to honor the fallen officers in almost every county in the nation. I distinctly recall the annual ceremony held in Shasta County in front of the courthouse honoring the dead. And though it was several years since the last Shasta Peace Officer was killed in the line of duty, seeing people you work with every day, knowing that any one of them could be snuffed out in a hairs’ breath is sobering and disconcerting. So, we understand the fear and concern for officer safety. (To my knowledge, the Fire Departments in Shasta County had no such ceremony. If so, it was not nearly as publicized or well attended).

And it is clear that we as a society think those lives matter. We have enhanced penalties for doing anything to an officer, one of the few professions accorded that protection. And while officers enter a profession they know is potentially dangerous not everyone who comes into contact with the police is making the same educated decision. In too many cases, they are dead before they can make any decision. So, when people hear of a police officer being killed and respond with that thin blue line, that is a normal moment of recognition. But, when they add “Blue lives matter” it is a co-opting of another movement and it tells those members of that community, “blue lives matter MORE”. One community argues that their lives are worth recognition, consideration and respect and we should not be so eager to accept that killing them means nothing. The other says they should never be questioned and no matter the circumstances their lives mean more. Does everyone who say that mean to give that impression? No. But, it is there and they don’t care that it is.

In this series, we will take a look at how we got here. How we created an environment in which we risked making the police unaccountable and in turn made the job even more dangerous. How we did it with law, tradition, training and the police subculture. We will see how apathy from members of the public who know darn well they are never going to be on the receiving end of police abuse and misconduct (and it is not because they always follow the law) , it festered. We will see how new technologies and social movements have changed the conversation and not always for the better. We will also contemplate where we go from here because we certainly need to go somewhere from here.

 

Schools crack down and logic goes out the window.

Let me speak frankly. As a whole, I do not like school administrators. It is true. Certainly there are some wonderful administrators out there. Those who are, do a great job under tremendous pressure and those who don’t, are causing parents and students to suffer needlessly. And nowhere is that more apparent than the increasing use of the police and the juvenile justice system to address school disciplinary issues.  Continue reading “Schools crack down and logic goes out the window.”

Back Again, and boy did we miss a lot.

Yes, it has been awhile. In our legal life, I have been hard at work on a series of cases that have required a great deal of travel and time. And it means we missed a lot. From police shooting unarmed civilians to Wrestlemania, to the end of Better Call Saul and the debut of Daredevil. There is a great deal going on out there and we will try to touch on a little of it here.

 

Better Call Saul.

From the creators of the award-winning BREAKING BAD, AMC has another prestige prize in BETTER CALL SAUL (“BCS”). The show is well written, well cast, well acted and a lot of fun. Prequels are always tricky business because you already know where several characters are going wind up. But, when done right, we can see a fascinating journey for both James “Slippin Jimmy” McGill (played by Bob Odenkirk, who may never known for comedy again after this) and Mike Ehrmantraut (Jonathan Banks, proving again he is pure gold). A journey that shows how the future Saul Goodman (Jimmy) was once a man who desperately wanted to be respectable and how his efforts failed and led him to the criminal he would become.

What I find as a solid plus to the show is how well it shows the legal profession. We see the large reputable law firm for which Jimmy’s brother, Chuck, is a name partner and leading rainmaker. We see the power and prestige of those larger firms and how they can, on occasion, show disdain for the little guy. But, it goes deeper. We learn how some of those big firm boys and girls actually come to like and respect Jimmy because of his intelligence and tenacity. When we meet him he is working from the back of nail salon. Admittedly, I actually live in a house and most small firm or solo lawyers I know do as well, but the idea of having to bust your hump to find the right way to become a quality player in the legal field really resonates.

Until THE PRACTICE, television shows about Law firms tended to show the glitz and the glamour. Rarely did they show the drudgery or even the fear of the law. Yes, this business can be scary, especially when you lack the pedigree of coming from the right schools, or right firms, or even the right families in some cases. BCS does that and more. Including Jimmy’s search for the right area of law in which to focus his practice, a problem many a lawyer has gone through.

DAREDEVIL

I confess, Daredevil is one of my favorite comic book heroes of all. Every year I re-read Frank Miller’s run on the book, especially the incredible BORN AGAIN saga. Because the Ben Affleck film was such a disappointment, I had high hopes for the new series on Netflix. And my hopes are met. It is a dark series and for the first half of the series, it is more of a great crime and action show than a super- hero show. The show draws heavily upon Marvel lore to establish each of the players and is pretty well grounded or as grounded as you can be with a protagonist who is blind but has enhanced senses and a radar sense.

As a legal show, while it shows the work of Franklin “Foggy Nelson and his blind partner, Matt Murdock, early in their careers, it does not spend a great deal of time going in-depth with the law. This is a shame because to see how the law is used or abused in the Marvel Cinematic Universe, of just how it functions can lead to a variety of intriguing storylines. We may see more of it as time goes on, since it Nelson and Murdock are the lawyers of record for many of the inhabitants of the Marvel Universe. Combined with the contradictions of Matt’s double life and his conflicted existence of lawyer by day and law breaking vigilante by night, I think there is room for a good legal show inside this series.

Police Shootings

Sorry, folks but this is going to take a whole new post to address. Since we were last here we have had the unique experience of watching a police officer actually get charged for murder. Again, were it not for the existence of citizen’s video this would have never happened. First, it involves police officers. Secondly, there is the racial component (white officer vs. dead black guy, cops account wins out) and, finally it was in South Carolina. These three factors historically lead to cursory investigations that always presume the killing is justified because the officer said so instead of looking at any evidence that may say otherwise. In this case, the video directly contradicts not only the officer who did the shooting, Michael Slager, but the second officer on the scene as well.

This is tragic on more levels than we can count because it comes right after three other high-high profile police related slayings of unarmed individuals and just before the Freddie Gray matter in Baltimore. These incidents do a great deal of harm because slowly but surely trust in law enforcement is getting eroded.  Police rely upon judicial and statutory rulings that encourage the use of deadly force first. These rulings reduce the chances that law enforcement will be given less lethal tools to do their jobs, including training in de-escalation. The history of officers willing to cover for each other or at least turn a blind eye to the wrongdoing of fellow officers is long and the backlash against those who say anything about police wrongdoing within those departments is also long. This mistrust then increases the danger to officers because at some point the public sees that badge, gun, and uniform and becomes automatically frightened. Or I should say some members of the public because it also painfully obvious that the police have a pretty good idea of who they can get away with abusing and who they can not.

Part of this tragedy is that there are many departments who have made concerted efforts to not be invading armies, but be protective members of the whole community. They are trained in cultural awareness in order to reduce misunderstandings. They have encouraged officers to move into the cities and neighborhoods they patrol. They have learned ways to de-escalate potentially dangerous situations while also remaining well versed in the use of physical or deadly force because, sadly, at some point any officer can be in the situation where there truly will be no choice but to use that force.

What we should be asking for, no, what we should be demanding is better training so that officers are not making these kinds of errors. We should give them tools to make better decisions. We should not have officers afraid of showing remorse and saying, “I thought it was him or me and I was wrong. I am sorry”. And yes, that might mean writing a big check, but ladies and gentlemen we are doing that anyway. Police departments across the nation pay big time for settling lawsuits because of either unlawful deaths caused by officers or other illegal actions. And the individual officers never pay a dime for that. The cities and counties do, and in turn, that money is taken from that law enforcement agency’s budget. So next time you hear police complaining that the department has no money, go look up how much money was paid settling lawsuits.

In short, these things are costing us all something. Life, liberty, money, or trust. We are all paying for this. Well, almost all. And if we do not get a handle on it, it is going to cost much more.

On the Road Again.

Well we have been on the road for quite some time. As we write this we are 30,000 feet in the air, flying from New Jersey (via Boston) back to Long Beach, where we then have a long drive ahead of us for another court hearing. Such is the life of the busy litigator, I suppose. Thank heavens for technology that allow us to be somewhat productive on many cases. We also saw the limits of technology and it has been a real lesson in seeing that part of the investment in the future is even better mobile tech and more human resources.

Because so much of our travels lately involve pending cases, we will not go into any great detail here. I can say that I am very proud of one client who handled herself very well in a new situation.

So what have we missed in the law, pop culture and wrestling? well, not too much but there was an experience at a local independent wresting show (in a location that will remain unnamed) that bears some mentioning. It was a program that had a good product inside the ring. When you have performers like Biff Busick, Colt Cabana, Chris Hero, Kenny Dyskstra, Mike Mondo, Bob Evans, The HeadBangers, Alexiss Nevaeh (sp), Tessa Blanchard, Brandon Locke, and Kevin Sullivan you are bound to get something right. But, that was not where trouble happened.

Like many industries, pro wrestling is a unique animal. But, its unique nature does not mean it is hard to figure out. It is still a business. And part of any business owner is knowing when you need to reach out for help. Independent wrestling has far too many people in the business promoting shows who have no business doing it. Not because they are stupid, but because people forget it is a BUSINESS. And sometime, in having fun in your business you can not forget that business is the priority. It means you, as a promoter or business owner have to get accustomed to contracts. You need to know or hire people who can lock you and vendors into the best possible contracts for your business ventures.

Too many business owners get screwed, or more accurately screw themselves, by not having a mind meld of sorts. Of not using advisors who have done what they are trying to do. People who have contacts and experience can help business owners not make the avoidable mistakes.

I should not have to remind you that you have to pay your people, but it happens. Listen carefully: The price of starting the business or sustaining the business, or promoting a show is the minimum you are willing to gamble. You can not hope for a future earning to meet your costs so you can pay your vendors and workers You need to have that money ready to go so that you can at least be known as a good pay-off person. Otherwise, you won’t be in business for long and you won’t keep your friends for long.

The other rule is to keep your family happy. Because businesses may come and go, but a great family can get you through almost any crisis.

On a personal note, we want to send our prayers and sympathies to one of my law classmates, Shelagh Newton Michaud, who lost her mother this week. For those of us of  a certain age, we are watching our parents get vulnerable and pass on and there is no easy way to deal with it. All we can do is hope that they know that we know they loved us and gave it their best efforts in raising us. We can thank them and remember them by passing the lessons they gave us on. Especially the lessons about family.

Until next time

Resisting Arrest or Knowing the Law? Do Cops know the difference?

In recent months, we have seen an outpouring of emotions regarding the law enforcement community. Responses range from criticism regarding how they do their jobs when dealing with certain members of the community to a belief that they merit  unrestricted praise and obedience. In my life,  my own friends and colleagues cover this gamut. I understand the instant desire to label all cops as heroes just doing their jobs etc. But, how in the world do you justify this?

http://sfpublicdefender.org/news/2015/01/video-deputy-public-defender-unjustly-arrested/

Continue reading “Resisting Arrest or Knowing the Law? Do Cops know the difference?”

Goodbye 2014. And hello to some new laws in 2015.

We want to wish you all a happy and healthy New Year. Please be safe out there and remember, don’t take the breathalyzer in California. As we leave one year, the great state of California has some important changes coming in 2015. Today we will focus on some of the new law bound to have an impact on businesses, employers and employees  in 2015. Below is a summary of some of the major changes that affect a wide swath of businesses. Later this week, we will look at some changes in criminal law for 2015.

Paid Sick Leave
Effective July 1, 2015 employers will have to offer employees up to three paid sick days a year. The law exempts some in-home care workers. Employees will begin accruing the mandatory paid sick leave at the rate of one hour of leave for every 30 hours of work, up to 24 hours of sick leave. Employees will be allowed to take the sick leave after 90 days on the job. This means that employers must be extra diligent about monitoring hours and leave accrued. Because, we assure you, somebody else will.

Expansion of Mandatory Harassment Training
As a result of California AB 2053, Employers that are subject to mandatory sexual harassment training (employers with 50 or more employees) will now also need to add training about “abusive conduct” to prevent cases of workplace bullying. The statute defines “abusive conduct” as conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. This may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. Under the law,  a single act shall not constitute abusive conduct, unless especially severe and egregious. This should serve as a warning for employers to nip the conduct in the bud, so to speak, as quickly possible. Now is the time to review and revise all training materials for employers subject to this rule.

Expansion of Sexual Harassment training to Farm Laborers
A separate law will also add farm labor contractors to the list of employers that must conduct mandatory sexual harassment training, including the new “abusive conduct” curriculum. This applies regardless of size. So any of these middlemen who provide farm laborers will need to provide this training and know the rules because it is now part of the Contractors’ Licensing Exam.
Expanded Protections for Unpaid Volunteers and Interns
The extensive protections of the Fair Employment and Housing Act (FEHA) now applies to volunteers and interns as well. This will allow people to sue for discrimination, even if they are not a paid employee. This also requires the employer to make reasonable religious accommodations to volunteers and interns, or anyone else receiving unpaid work experience.

Ban on Plastic Bags
The ban on plastic bags will initially extend to supermarkets and large pharmacies, but will eventually grow to also include convenience stores. Consumers will be able to buy paper bags for a maximum of ten cents a piece if they do not have their own reusable bags. At this point, people should get accustomed to buying their own bags because inside of a decade, few stores will be providing bags.

Expansion of Prohibition Against Immigration Retaliation Claims

Unfair immigration discrimination practices will now include filing or threatening to file false reports with any state or federal agency. This also clarifies that employees cannot retaliate against employees making lawful changes to legal names and social security numbers.

Prohibition Against Discrimination Against Public Assistance Recipients
This law is an interesting twist. Historically, it has always been legal to discriminate against the poor. This changes things a bit because it adds people receiving public assistance, particularly Medi-Cal, to the list of employees protected against discrimination and retaliation by employers.

Increased Liability For Employers Using Contract Labor

Employers will now be liable for wage and hour violations even when using employees provided by a contractor or staffing agency. If the contractor fails to provide proper payment or even worker’s compensation coverage, the business using the contracted labor will be liable to the employee and to agencies issuing fines and penalties. When using such agencies, businesses should now be revising their agreements to indemnify themselves or include provisions that will force the agencies to properly record, pay, and report.

So as we head into 2015, know your duties and your rights. After all, it is your business.

Crime, Drug Rehabilitation, and Exclusions: Part 2 of our look at Prop. 47

There are many in law enforcement who claim that Proposition 47 reshapes criminal law to allow for drug addicts who commit crimes, outside of being in possession or under the influence of a controlled substance, to receive reduced sentences. While it does allow for reduced sentences for thefts under $950 committed by nonviolent offenders the law applies equally regardless of whether the person is a drug addict or not. Continue reading “Crime, Drug Rehabilitation, and Exclusions: Part 2 of our look at Prop. 47”

Proposition 47: What it does and does not do. Part I

On November 4, 2014, Californian voters passed Proposition 47, titled the Reduced Penalties for Some Crimes Initiative. The initiative reduces the classification of most “nonserious and nonviolent drug crimes” from felonies to misdemeanor charges.[i] It was immediately met by many, especially in law enforcement circles, as the End of Days. We want to take a minute to discuss, in two articles, what Prop. 47 does and does not do, and why. Continue reading “Proposition 47: What it does and does not do. Part I”

What Bill Cosby should say about the rape allegations and why it matters.

Recently our most beloved television dad and most famous Jell-O spokesman found himself embroiled in controversy. As most of you may know, Barbara Bowman is back in the news, based upon allegations that Bill Cosby drugged and raped her back in 1985 along with twelve other women over time. While the events are old it is not surprising that recent revelations would merit some media attention. After all, thirteen is a pretty big number. What makes this odd is that these are not new “revelations”. This story has been out here since at least 2004. So why all of the attention now? Could it be because Cosby has a few new projects coming up including another TV series? Or was it, as some say, because a male comedian, Hannibal Burress, raised attention to it during a stand-up routine? Is it connected to a change in society, or a change in female power in media, that is bringing this forth? I can not tell you which of these, or if all of them, are responsible for what is going on with the new attention. What I can tell you is what Bill Cosby, or anyone else in his position (is there anyone else in his position?) should say. Continue reading “What Bill Cosby should say about the rape allegations and why it matters.”

Reports from the Big Smoke and how it’s crucial to our practice.

Today I am feeling the repercussions of one of my favorite events of the year, Cigar Aficionado’s Big Smoke Las Vegas. Cigar Aficionado is the premier lifestyle magazine for cigar smokers and those who celebrate a certain lifestyle that celebrates good food, good conversations, good libations and a celebration of freedom to enjoy many of the finer things in life. But that is just the start of why I love the Big Smoke. Continue reading “Reports from the Big Smoke and how it’s crucial to our practice.”

What Price is Freedom from Religion? Apparently almost $2 million

We saw an interesting story from Shasta County, California. Having seen this issue pop up back when I was a Deputy District Attorney there, I was both amused and pleased to read about this one. Here is an example of the problems with mixing church and state, especially in smaller communities.

Barry Hazle, Jr. reached an agreement for $1.9 million plus with the State of California and Westcare California, Inc., a non-profit drug treatment group, after the state revoked his parole for refusing to submit to the religious nature of the program. The agreement is for over $1.9 million plus.

In 2007, Hazle, like many, was sentenced to a 12-step treatment program at Empire Recovery Center in Redding. The less than ideal drug laws we have in this state and the nation as a whole, often result in drug treatment in lieu of jail. Though treatment over punishment is often the better way to handle some cases, there is the still prevalent problem of a lack of resources. In some places, especially those of a more rural or isolated nature, this means the choices available to a person for treatment are limited. Often the limitations are based purely upon availability and funding. In some communities, however, the limitations can be the nature of the program itself. Those that require a religious component can easily outnumber those that do not. Here, the state sent Hazle to a religious-centric organization.

As an atheist, Hazle refused to acknowledge and release responsibility to a ‘higher power’. Unfortunately, for him, this is a requirement of the program. Based upon this refusal, parole officials revoked his parole and sent him to prison for the over three months.

This, of course, is ridiculous. The idea that the state will give anyone the option of treatment or prison, but only if he will submit to a religious requirement is not only unconstitutional, but defies all logic. There is no evidence that faith-based programs are more effective than non-faith-based programs. Furthermore, the state has no business declaring that a refusal to believe in a higher power constitutes a failure to meet parole conditions. Such a proposal then requires an individual to lie daily, in order to get the benefit of the bargain. Do we really want to encourage addicts to lie to get what they want? It defeats part of the other purposes of rehabilitation programs, namely to get the addict to face the truth about their choices and condition.

When we talk about the violation of civil liberties in the history of our nation, the federal government, long feared to be the big monster, has nothing on the violations done by local and state governments. It is there where our prejudices run wild, often because we live around and near those most likely to share those prejudices or at least those who will not oppose them. In smaller communities, there is often a tendency to marginalize “others” and give no regard to their rights so long as the majority feels comfortable.

Hazle filed suit and won in front of a judge. However, in determining damages, the jury, made up of local folks, decided it was worth nothing. In other words, they thought the violation of his constitutional rights, including a wrongful imprisonment and an attempt at coerced religious conversion, was worth nothing. While disappointing, it was not surprising.

His successful appeal of the jury’s decision led to the settlement. Let us hope this will convince officials and the public to consider finding more resources for the non-religious as well as the religious in addressing rehabilitation.

Masked Wrestler Poll

Let’s get your opinion

Mr. Wrestling 2
Mr. Wrestling 2

Just where the hell have we been?

Yes, it has been awhile. As those who subscribe to our newsletter know we have been rather busy lately with our move to the new office. Located at 300 E. State Street in downtown Redlands, CA. The move required some time away from the blog as we set up new services and added some new personnel. For more information on that you can sign up for our newsletter.

We also had some roller derby duties to perform because, well because we like it.

Receiving a whip from Bobby Cendejas and blocking out Kyle Bell
Receiving a whip from Bobby Cendejas and blocking out Kyle Bell

On to the law.

SEARCH AND SEIZURE DEBATE.

We want to thank the folks at Above the Law for bringing this to our attention. There was a debate regarding whether or not the mass collection of phone date is an unconstitutional search and seizure. It is a good question and one worth having because the real question is whether the records themselves are an unreasonable search and seizure. Unreasonable being the key word here. It is an intelligent debate and heaven knows we need more of that instead of the ridiculous talking head arguments we see on television and hear on the radio. Check out the video section there.

GAY MARRIAGE AND THE SUPREME COURT

The Supremes, once again, made no decision on gay marriage at all, thus allowing it in seven more states that overturned gay marriage bans. While it is certainly not a lot loss for the supporters of gay marriage it still is not the decisive Loving-esque decision they are hoping for. Eventually, the Supremes will have to face the key question in same-sex marriage. Can a state that does not allow same-sex marriage be forced to accept a lawful same-sex marriage in another state? Or, put another way, can people who are lawfully married in one state, have their marriage nullified once they move to another state? This full faith and credit question is the real crux of the matter. Once the Court rules on that, the game is over one way or another. For the best coverage on this and other Supreme Court matters, check out the SCOTUS BLOG.

THE LAW HAWK

I do not do YouTube advertising (yet). But if I did, I hope I have the guts to be as bold as this guy. He calls himself, The Texas Law Hawk. And I can not determine if this is the most ridiculous lawyer commercial I have ever seen or one of the coolest. I keep expecting him to challenge the prosecutor to a Texas Death Match, this Saturday Night at the Will Rogers Memorial Coliseum to face a Von Erich or Bruiser Brody.

In wrestling related news, we will be returning to New England in 2015 to do Color Commentary work for the Boston Pro Wrestling Marathon. Combined with our 15th law school reunion, I look forward to being back in the great Commonwealth of Massachusetts.

In our upcoming posts we have a special look at John Cena, and two book reviews. One of those reviews concerns a book written by New England wrestling mainstay Sean Gorman. Gorman is on vacation in Paris for the next few days and we wish the tall, lanky bastard well in the City of Lights.

Ray Rice: The Critics begin and we respond.

Taking even shorter to start then I expected, we have received the expected criticism on our last posting involving the NFL and Ray Rice. This criticism, though not a fair one, is at least an intelligent one. So let’s share it here, and then move on to other matters.  Continue reading “Ray Rice: The Critics begin and we respond.”

Ray Rice: Like your relationship status,the outrage is complicated.

Let me start off by saying that domestic violence is an issue that I take very seriously. I was a domestic violence prosecutor for almost three years and during that time I worked closely with Victim’s Assistance and organizations dedicated to the safety and protection of women. I also saw the devastating impact of false accusations of domestic violence and, despite the rhetoric, there are enough of those to require vigilance and good investigative work to weed those out as well. Continue reading “Ray Rice: Like your relationship status,the outrage is complicated.”

Jennifer Lawrence loses her privacy and so do we.

There are days where I just want to grab someone by the collar and scream, “WTF is wrong with you?”.

As many of you know, the issue of “revenge porn” (the distribution of nude photographs of a former significant other without their consent) is now a common theme. Yesterday, we learned that several celebrities had their icloud accounts hacked and now someone is distributing, or attempting to distribute those nude photos. Though some of these celebrities claim pictures of them are fake (like some of the bodies perhaps) others admit that the photos are authentic. According to some reports, the hackers are willing to release more photos for money. Classy folks, there.

Needless to say (but I will anyway), some of these celebs, including Jennifer Lawrence, have unleashed warnings through their attorneys and rightly so. This is theft. What is unclear is exactly who it is theft from. If Apple has an agreement like many other online services, there may be a provision granting Apple rights to those photos, in which case the hackers, buyers, and distributors could face the wrath of a powerhouse. If Apple does not have such a provision, then they only face the wrath of a pissed off Hollywood. A Hollywood that includes Apple.

I confess, I am a J-Law fan. Love her work, think she is adorable, and she clearly has the ability to poke fun at herself. And if she wants to appear naked, and not blue, in a film I certainly would not object. But, the idea of seeing her like this is abhorrent. The idea that any of us would see someone like this, vulnerable and intimate without their consent, is abhorrent. And if they can do that to them, they can do it to us all.

Piece by piece we have placed our privacy in the hands of others and time after time, despite their efforts, it gets exposed. While we may not be able to do much to prevent these breaches, we can certainly do a great deal not to encourage them.

Ferguson…and what you got wrong.

Frankly, this was a topic I had no real desire to jump into. First,because it was obviously going to devolve into all kinds of political rantings from people of all stripes and this is not a political blog. Secondly, because the amount of misinformation that would be tossed around before the “truth” was discovered was bound to be ridiculous. And on both counts, that is exactly what happened.

But, politics and law are usually bound together. Politics often leads to laws, good and bad. A failure to fully vet the legal ramifications of a hastily put together law often leads to long-term problems and extensive litigation. Living in California, the home of an asinine voter proposition system that bloats the state constitution, we see it first hand.

So what did you get wrong about Ferguson? In a nutshell, everything.

The biggest reason you got everything wrong is because of the rush to come to a conclusion on a matter that is not your job. The grand jury has a job, prosecuting agencies have a job, and unless you are in those categories you do not have one. You should not speculate on bullet trajectories, the number of shots fired, the relevance of an unconnected strong arm robbery, injuries, the lack of a police report, the eyewitnesses, the non-witnesses claiming to be closely associated with somebody else. Because the odds are very high that whatever the TV and talk radio news is giving you is wrong or out of context. Not because of some crazy left-wing bias or some crazy right wing bias, but because they are lazy in a highly competitive business. Reporting on nothing but speculation often. Let it play out a bit before you get started.

What you thought: This was clearly motivated by racism

Why you are wrong: Because nothing is clear. For the sake of this argument, let us say that Officer Wilson fired shots when he should not have. He is not the first cop to get into a physical altercation with a much larger person. But, those do not usually end in death. It is entirely possible that he merely is a bad patrol officer who screwed up badly. That he lacked the physical and mental skill to handle the incident in question. Maybe he was poorly trained. These are all possibilities. Keep this in mind: Almost every police department likes to say it has the greatest police officers in the nation. Except for one, they are all wrong. This may be just another example of someone doing their job poorly.

And a poorly done job may still be a legally done job. First, Missouri state law and then federal law will be applied to determine if any violations occurred in Ferguson. And no matter how it plays out, someone is bound to be unhappy. That does not mean it is right. Just makes it legal or illegal. That sucks of course, but if you are looking for fair, you may be in for a huge disappointment.

What you thought: Race has nothing to do with this.

Why you are wrong: Because you do not know that either. For starters, many people have this notion in their head that racism must consist of either cross-burning, racial insults, or some other blatantly obvious and recently socially unacceptable action. But, it is not limited to that at all. It is pervasive. So pervasive that we often have no idea of the impact it has on us. Study after study shows this.

From a legal standpoint, there is a reason why prosecutors can still find themselves in trouble for purposely seeking all white juries (Hint: Because some prosecutors want all white juries when they have black defendants). There is a reason why white defendants facing predominantly white juries often receive lesser included convictions on charges and evidence that their more colorful counterparts get the higher felonies on. Do most of these juries walk in saying, “Oh I’m gonna get that little “? Highly doubtful. But they are less likely to identify with a person of color than with someone white. That does not mean these people are going to go join the KKK. But it does mean they see a difference between those who look like them and those who do not. And that CAN have an impact.

Is an officer more likely to use a deadly force on a person of color than a white person under the same circumstances? Some are. Despite the praise heaped on them as heroes, they are human. They all have the same foibles as any other human and some of those foibles include a bias and prejudice, conscious and subconscious. The former is easy to find and to judge, the latter not so much. In other words, they can be everything we are and that covers every step on the scale of human conduct and emotion, from incredible heroism to incredible cowardice.

So we don’t know that race had no role in this. In fact, Officer Wilson may have no idea if it played a role or not. And we may never know. But, it can’t be rejected outright merely because people don’t want to consider it.

What you thought: All Cops are racist.

Why you are wrong: Just sheer numbers would indicate they can’t ALL be racist. All? in EVERY department across the nation? I can be cynical, but this takes quite a stretch.

The problem, of course, is that many are and they do not wear badges telling you the difference. Even scarier is that those who are not spend little time, if any, opposing those who do. In short, it is often accepted in the name of police solidarity. When I was prosecuting, I was often told to remember that the people we dealt with in the criminal justice system made up a very small part of the population. I would often think  that the number of people willing to do anything about crime was even smaller. But the group that is even smaller? The number of people in law enforcement willing to do something about the misconduct or prejudices of other officers.

To be fair, I worked with officers who had no problem telling me which officers they did not trust. I knew officers who told me about other officers whose work and ethics they questioned. But did they relay this to others? To their superiors? To the officer they did not trust? No. And until we get that with officers not fearing reprisals, that mistrust is going to be there.

What you thought: I know it is a fact because I heard it on Fox News….

Why you are wrong: If I need to fill this in for you, it may be a lost cause.

What you thought: I know it is a fact because I heard it on MSNBC…

Why you are wrong: Same answer as above.

What you thought: I know it is a fact because I heard it on CNN

Why you are wrong: Are they still in business? I jest, but in all seriousness, CNN’s habit of debunking other news stations’ unsubstantiated reports by using unconfirmed reports has gotten rather tiring. Biased media is bad enough. Lazy media is embarrassing.

So where does this leave us? Dead unarmed kid. That part has not changed. And there is nothing wrong with protests and demands for competent investigation. As my more “conservative” friends like to say, government needs a watchdog. Surely people have not forgotten that the police are part of the government’s powers have they? Some forget that because in their community the power of the police is rarely unleashed against them.

And there is nothing wrong with people wanting to support and believe in Officer Wilson, particularly his friends, family and fellow officers. After all, they have no direct knowledge of what happened either and it is not unreasonable to believe in your friend or family member until proven otherwise (and even then sometimes).Though the people sending him money with no connection to him at all is odd. And those adding racial insults and commentary while they make their donations is not exactly a ringing endorsement most of us would want. But, there are several people who see nothing wrong with those slurs. Besides, in the USA money is money and people often don’t care how they get it when their fat is in the fire.

What you may be thinking: You do not understand the hardships and danger of police work.

Why you are wrong: I worked closely with police officers for the better part of a decade. We have far more police officers in my family than we have lawyers. I lived with a cop. One of the most moving moments I had is attending the annual Shasta County memorial for fallen police officers, a sobering reminder that death often comes unexpectedly there.

Conversely, I also know what it means to forcibly have my hands on a car and be frisked for a jaywalking ticket. Let’s go over that again. I was frisked for a JAYWALKING ticket. Pulled over for an unspecified reason? Been there. Stopped for “matching the description” of “black male approximately 5’10 with a shaved head”, when at the time I had hair and have never been taller than 5’7 1/2? Been there too. Stopped after leaving a store when no alarms went off (and in one case I had no bags at all) and had no property? Been there too. And as Arsenio used to say, after awhile all these things make you go “hmmmm?”

So how will this all end ? I have no idea. There will be more protests and more counter protests. Maybe even a few hearings. And in the end, I suspect that nothing will actually change. I hope I am wrong, but I won’t bet on it.

Woman sues VH1 for showing her Naked on…a dating show where people get naked.

In yet another example of why we think people are idiots, a woman who appeared on the VH1 reality series, Dating Naked, filed a $10 million lawsuit against VH1 and its corporate parents, after the show aired a scene in which she was naked on Dating Naked. Now of course you might be thinking, “Hey, what did she expect?”, in which case, you do not know much about the “bait and switch” of television and you underestimate the intelligence of people who want to be on TV so badly, they agree  to be seen naked by the multitudes or at least a stranger and film crew.

According to the plaintiff, Jessie Nizewitz, an aired episode featured a scene where she and her date wrestled naked on a beach and there was a short non-digitized view of her non-bedazzled va-jay-jay. For some reason, she believed that wrestling naked in front of cameras was not going  a problem because show’s producers promised her that all nudity would be censored or shown in a “dignified way”. According to the complaint the producers agreed to broadcast only her blurred vagina and anus on all showings. If that is so, we may have a breach of contract suit, though the very brief shot (which I have not seen) may indicate an unintentional lack of editing. Or it could have been very intentional. Broken promises are nothing new in Hollywood.

But where this gets really interesting is that our plaintiff, a 28 year old model who agreed to get naked with a stranger for a TV show, is claiming mental anguish, humiliation and embarrassment. She argues that once the show aired she immediately received text messages from friends and family. One message read, “So your money shot is on cable TV”. This, of course, is horrible. It means a 28 year old woman has a friend or family member who does not know what a money shot is.

Besides that tragic realization, plaintiff also claims that she was further harassed on social media. Apparently, people who watched the show to see naked people, told one of those naked people, that they saw her naked. According to the complaint, the incident was so shocking to the gentleman she was dating that he never called her back once the show aired. This is, of course a triple whammy as she describes the man as “employed, Jewish, in his 30s and that’s pretty much ideal”. Wherever will she find another employed, Jewish man in his 30s who is ok with his new leading lady being naked and wrestling on the beach with some other guy, but won’t be traumatized by seeing her vagina or anus for a split second on TV? I do not know, ladies and gentlemen, and it is too distressing to contemplate.

By the way, did I mention plaintiff is a model? Not to disparage models, but nobody becomes a model because they dislike being looked at. (Or do they? Models feel free to contact me and let me know. Do NOT send pictures, I will take your word for it). And here we have someone who decided to get more exposure and is now allegedly distressed that she got a few inches more than she wanted. This may actually become an interesting case because we could have liability for the breach of contract with very low damages and no liability on the mental anguish torts. At first blush, I like the odds for the Defense.

But, it is early and a long way to go before we get to the naked truth.

Read about it here

Man dies from a pain in the ass and a fatal mistake

This has very little to do with law or wrestling or pop culture. I just find it hilarious and sad at the same time that a grown man died because he placed a sex toy in his rectum, where it remained lodge for several days, and then he died from septic shock. He died because he was too embarrassed to tell his doctor.

I often tell people that there are two people you should never lie to. You can lie to your priest, your minister, your rabbi, your parents, your children, your spouse, and almost anyone else. But lying to your doctor or your your lawyer can prove fatal. These people need to know every fact in order to properly protect you and help you. So, don’t tell your doctor you gave up smoking when you, in fact, are still puffing away. And don’t tell your lawyer that you have no documentation for an issue in a case when you actually had it and destroyed, Putting pride before your health and freedom is a risky endeavour, usually met with an early demise on the outside and a slow death within.

 

BREAKING NEWS: FEDERAL JUDGE RULES NCAA VIOLATES ANTI-TRUST LAWS

In a 99 page decision that is nothing less than groundbreaking, US District Court Judge Claudia Wilken ruled Friday that  NCAA rules unreasonably restrain trade in the market for certain educational and athletic opportunities offered by NCAA Division I schools. In other words, the NCAA has been slapped and slapped hard.

Though this will certainly be appealed, the Court has essentially noted what we all have figured out: Everyone in the NCAA gets to exploit the players for money, except the players themselves and that is by design of the NCAA. Judge Wilken’s ruling allows restrictions on player compensation for university and NCAA use of players’ names and images, but that it could not be less than $5000. Of course, such an amount is peanuts to the major NCAA programs, but it is more than they were giving up before.

Stay tuned for our more in-depth look at this tomorrow, after I have a chance to read the full decision.

WWE does an incredible segment! And it makes no legal sense at all.

I finally had the chance to see the much talked about segment of the most recent episode of Monday Night Raw, featuring Stephanie McMahon and Brie Bella. It was an incredible performance by both women. It is rare to see two women close out an episode of any professional program and these two made the most of it. In terms of entertainment, it was an A+ segment. Alas, it was a horrible lesson in the law. Continue reading “WWE does an incredible segment! And it makes no legal sense at all.”

How not to make an ass out of yourself when dealing with the cops

 

As a lawyer one of the most persistently interesting experiences I have is hearing about the various tales of the public’s interactions with police officers.  They vary from stories of horrible police conduct to police officers going above and beyond the call of duty to serve the public, not only by risking their lives, but by just taking the extra step to let the public know the police were public servants and not an invading army. These experiences vary from place to place and from officer to officer.  Growing up in central Long Beach, California, the police were one of the last people I would have ever trusted. Hell, I still don’t trust the LBPD.  Conversely, the officers I knew in Massachusetts and in Shasta County became people for whom I have a great deal of admiration and trust.  Having been on both sides of interactions with the police, I have a few tips for the best way to handle that moment when the men and women in blue become an unwanted part of your life. Continue reading “How not to make an ass out of yourself when dealing with the cops”

BREAKING NEWS: Jesse Ventura wins defamation lawsuit against “The American Sniper”

In what can be called a battle of SEAL v. SEAL, former Minnesota Governor, Jesse Ventura was victorious in his lawsuit today against the estate of Chris Kyle. Kyle, famed as the “Most Lethal Sniper in US Military History”, wrote a book with that moniker as the title. In it, he made several claims about a thinly disguised Ventura, then later admitted Ventura was exactly whom he was writing about.

The interesting thing about this case is that defamation is hard to prove when involving public figures, especially one with a complicated history like Ventura’s. The 8-2 verdict indicates that at least two people took Ventura’s colorful history in account before reaching a decision.

According to the story, all Ventura wanted from Kyle was an apology and an admission that several statements were false. With Kyle’s death he is not likely to get either. And if he does, then Kyle was an even bigger badass than his known history has already revealed.

http://www.nytimes.com/2014/07/30/us/jesse-ventura-chris-kyle-navy-seal-book-lawsuit.html?_r=0

Torts: Ted, Captain Redneck and Damages (Part 2 of 2)

It is another stiff neck and stiff back morning. While skating in a roller derby game last week I wound up going THROUGH a wooden rail. So, thanks to that and some rather physical pack play, I had what I call the “Roger Murtaugh” moment. Named after the police detective played by Danny Glover in the Lethal Weapon series who would intone at various points, “I’m getting too old for this sh**”.

Fortunately, I am not too old to write. So let us return to the topic at hand. As you will recall from our first post in this series, “Captain Redneck” Dick Murdock attacked Ted Dibiase before Dibiase’s NWA World Title match against Ric Flair. The attack left Dibiase bloody and weakened and he eventually lost his match against Flair. Murdock then attacked Dibiase after the match, putting him out of action for almost two months. (Note: Well, out of action in this country. He seemed fine in Japan).  So our question is, what damages could Ted Dibiase seek from Murdock based on the torts committed?

COMPENSATORY DAMAGES

Compensatory damages are the actual damages suffered by a party at the hands of the individual or entity who caused the harm. In this case, Dibiase has a claim against Murdock for his physical injuries. For Murdock this is where his second attack, concluding with a brainbuster on the concrete floor, can become costly. They took Dibiase away for medical care. His medical bills are obviously a concern and he should certainly have sought compensation from Murdock for his injuries. Continue reading “Torts: Ted, Captain Redneck and Damages (Part 2 of 2)”

Torts, Ted, and Captain Redneck

Tort(from Latin torquere, to twist, tortus, twisted, wrestled aside)- A private or Civil wrong or injury.- Black’s Law Dictionary

As you can tell from the definition above, pro wrestling is full of torts. From the almost constant presence of battery (an offensive touching) to assault (an incomplete battery) to tortious interference with contract (run-ins in title matches and evil managers) to hostile work environment (evil General Managers or Mr. McMahon’s ‘Kiss my Ass’ club). Of course, you very rarely see any kind of legal recourse for these offenses. That is probably because legal recourse does not sell nearly enough tickets. What we get instead is a throwback to older times and a complete disregard for law and order.

For example, let us go back to the fateful day when Ted Dibiase became a hero, Ric Flair remained Ric Flair, and Dick Murdock committed a series of torts that should have cost him a chunk of change and some jail time. Continue reading “Torts, Ted, and Captain Redneck”

What is the price of Glory?

American University law professor Andrew Taslizt is dead, passing away at the age of 57 in February of this year. Not that many of us knew who he was, unless you followed the scholarly world. From all accounts he was driven and brilliant. Devoted to his work,  honored and admired by many during his life and after his death. But his widower is wondering, “For what?” Continue reading “What is the price of Glory?”

Which role do you play? (Warning: Graphic Language included)

In some ways, I am a very lucky guy. Almost every morning I go to a local coffee shop where I enjoy coffee and conversation with a group of men who are long-term residents of Redlands. They are all older gentleman and at 44 I am the second youngest in the group, by far. These men are an invaluable part of my informal mastermind group. I learned a long time ago that it was crucial to have a group of older men around, who can pass on their knowledge and experience in both professional and personal terms. Like riding in a car for hundreds of miles with wrestling veterans or enjoying a cigar with learned men, I find these kinds of settings are where most learning really takes place.

Recently, the one member of our group was leading a conversation. He is a blue-collar guy with a hunger for knowledge and the kind of drive and ambition that you just know will lead to big things. On this day, he was lamenting an experience in which he was not being paid fully for his labor by an employer. We discussed how he was hoping things would change and some of his other options, including moving on. As he struggled with this, I looked at him and asked him something that the great Dr. Jerry Graham told me once. “Do you know what role you play?” I asked him. He looked puzzled, and I went on “See, I’m a whore. I could be almost anybody’s whore. What I will NOT be, is anybody’s bitch. So, are you a whore or a bitch?” Continue reading “Which role do you play? (Warning: Graphic Language included)”

How fans and juries screw it up and why they should stop

One of the highlights of the Wrestlemania Weekend is the WWE Hall of Fame induction ceremony. Originally an awards dinner open only to WWE personnel and special invitees, the ceremony is now open to the ticket buying public. Sadly, on more than one night, the fans have decided to entertain themselves by booing inductors, starting chants during speeches, and offering a slew of moments geared towards amusing themselves or being the focal point attention for those seated near them. And it is not just Wrestlemania. I have been at numerous independent and major league wrestling shows where a set of fans take it upon themselves to become the focus of attention, taking time and attention from those actually working. So just like fans can screw up a good thing by going too far in any direction, so it is with juries apparently. Continue reading “How fans and juries screw it up and why they should stop”

4th of July thoughts

A happy 4th of July to those who celebrate it. Admittedly, I am not that jingoistic about it for numerous reasons. First, fireworks tend to bore me. Seen four, you have seen them all. Secondly, after being in Boston for the 4th of July, every other celebration pales in comparison. And third, despite the rhetoric and myths, American Independence guaranteed the enslavement, disenfranchisement, and disenfranchisement of millions of Americans. It creates a strange feeling, never better expressed than by Frederick Douglass (see the great James Earl Jones’ reading of the Douglass speech here).

But, today I did what I do every 4th of July. I pulled out Thomas Jefferson’s masterpiece, The Declaration of Independence. Yes, there is a certain hypocrisy about a wealthy slaveholder, who never really held a job outside of politics,  comparing the conditions of he and his contemporaries to enslavement. In reading Jefferson’s letters and other writings, we see that he was aware of the hypocrisy. And yet, he knew enough to write those great enlightenment principles that would (or should have) serve as the guiding principles of the nation. He provided the ammunition that abolitionists, women’s suffrage advocates, Dr. Martin Luther King and other Civil Rights leaders would use to hold up a mirror to America and say, “Do you believe this ? Or Do you only believe this for certain people?” With that famous prose, he provided artful heart to the concept. A statement of principle that he hoped would outlive him; not the right to revolution, but the perpetual quest for liberty and recognizing the dignity of man. He knew he was on the world stage for a limited time and hoped that future generations would advance the cause. That is worth an annual read and a toast with a great American beverage. Enjoy.

We get back to more wrestling and the law soon.

US Supreme Court: Not nearly as divided as we think. And why.

US Supreme Court: Not nearly as divided as think. And why.

Thanks to the stat trackers at Scotusblog, the excellent blog that covers the US Supreme Court, we see that in the last term the Supremes were unanimous on 65% of their cases. That is more unified than most married couples. Only 14% if the cases before the court were decided by a 5-4 margin. That means that 86% of the time, this Court has reached decisions with a clear majority in terms of decisions. The reasoning may lead to split concurrences, but for the most part, they get to to the same place.

So what is it about these cases that cause a 5-4 split? Over the next few weeks we will look at the 10 cases this term and see what we can learn about the Court from them. For one we will learn that you can get some strange bedfellows and unlike WWE booking, there can still be some surprises.

McCutcheon v. FEC: Campaign finance reform case in which the Court determined that limits on aggregate campaign contributions is unconstitutional. Majority: The usual conservative suspects and Kennedy. Opinion by Roberts.

Navarette v. California:  Under the totality of the circumstances, the traffic stop precipitated by an anonymous but reliable tip to 911 complied with the Fourth Amendment because the officer had reasonable suspicion that the truck’s driver was intoxicated. Great mixed bag case. Justice Thomas wrote the majority opinion with Roberts, Kennedy, Breyer, and Alito joining. Scalia dissented, joined by Ginsburg, Sotomayor, and Kagan.

 

Supreme Court wrestles with corporate religion and the public wrestles with the decision

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After a nice run of unanimous decisions we got a 5-4 vote from the US Supremes today in Burwell v. Hobby Lobby. For those of you not paying attention to what has been going on, this case involves the Religious Freedom Restoration Act (RFRA), the Affordable Care Act (aka “Obamacare”), Department of Health and Human Services (“HHS”) and two closely held corporations. The corporations are family owned giants Hobby Lobby and Conestoga Wood Specialties.

Despite what you may think, this case has nothing to do with anyone’s mom and pop shop or DBA. Continue reading “Supreme Court wrestles with corporate religion and the public wrestles with the decision”

5 things you got wrong about the Washington Redskins trademark name matter

During the three great days I spent at the California Bar Solo and Small Firm Summit in Newport Beach, I was a little out of touch with what was going on in the world, save for the World Cup.But, one evening I was able to see some reactions to the ruling made by the panel of administrative judges at the US Patent and Trademark Office. Reactions I read ran from those praising the decision to those who saw it as an example of government tyranny. While opinions can differ for many reasons, I repeatedly saw that no matter the position, the basis for it was woefully lacking in understanding of the law and the facts. I decided to read the actual legal decision. So, in the interest of helping people form their opinions based upon a better base of knowledge, let us look at what people are getting wrong about this.

Continue reading “5 things you got wrong about the Washington Redskins trademark name matter”

A Lesson From Somerville: Better Zoning Promotes Economic Growth

Not wrestling related, but certainly law related. One of my dear friends in Massachusetts is a fellow alum of BC Law and a gifted attorney. Feel free to subscribe to his blog. The article he cites touches upon a future subject that one of our guest bloggers will be addressing later. Namely, the making of laws at the city and county level.

(The Legal aspects of the Mr. R Angle Part III)

Welcome back. On the road today in Newport Beach for the Solo and Small Firm Summit. I always enjoy these opportunities to learn more ways to better my craft and my business. To tie it into wrestling, it is like those young wrestlers who take the time and spend the money to attend seminars by well regarded and well-traveled wrestling veterans when they can. We will have more on what we have picked up here in a later post. Let us finish off the Ted-Dibiase Mr. R issue today. In Part I, we took a look at the backstory and contract between Ted Dibiase and the not-too-mysterious Mr. R. In Part I we also examined what forms a contract and what kind of contract was formed between Dibiase and Mr. R. In Part II, we took a look at some of the problems in contracting with a masked man. Today, we finish off by looking at what Dibiase’s attorney might have argued on his behalf to negate the title change and what legal theories could be used to combat that position. Continue reading “(The Legal aspects of the Mr. R Angle Part III)”

Quick thoughts and how waivers used by promoters are not nearly as good as they think they are.

Greetings from Las Vegas, NV. On the road for what has turned into a working vacation, as they all are at some point. Before, we get to today’s topic we want to touch upon a few quick points.

  • Very saddened to hear about the death of Tony Gwynn. An amazing baseball player who mastered the art of hitting. More importantly, a classy man. One of the pride of Long Beach Poly in both on-field and off the field accomplishments. A shining example to others who became “Mr. Padre” and in many ways, “Mr. San Diego”. He will be missed.
  • I want to thank those of you have given us feedback on this blog. I hope this continues because, like working a match, interaction with the audience is key. Some of you are already asking for topics that I think will be very interesting and challenging.

With that said, let us take on today’s topic. We take a break from the Ted Dibiase-Mr.R angle to take a quick look at waivers. Anyone who has worked a show has probably been asked to sign a liability waiver. These waivers, often pulled from some website and having not been reviewed by a lawyer in years, supposedly relieve the promoter (and often the venue) of any liability should something go wrong. I can not tell you how many times I have seen promoters be insistent on getting these signed and I often sign them without reservation. Of course, after becoming a lawyer I had no problem signing them because I knew they were not worth much and under the right circumstances, I could still get money if something went wrong.

 

Continue reading “Quick thoughts and how waivers used by promoters are not nearly as good as they think they are.”

Who is that Masked Man and why are we honoring a contract with him? (The Mr. R Angle Part II)

Greetings Grappling and Law fans. Sorry for the delay in posting part 2 of the Mr. R series. As is sometimes the case, our legal duties took precedence yesterday. But, it is a beautiful morning here at the Anderson abode, the Dragon (our Goldendoodle) is enjoying the outdoor air, I am enjoying my coffee and morning cigar (My Father Robusto) outside and it is time to get back to the series.

As you may recall, our last post in this series addressed who actually owns a championship. Having established that a champion only has a right to possession and not ownership, we have established that at the time Ted Dibiase was champion he had the right to possess the championship, subject to the will of the wrestling commission or promotion or whatever governing body was being claimed at the time.

We got that. So what does that have to do with contracts?
A great deal. In the kayfabe world of pro wrestling, champions were expected to defend their titles against worthy challengers. Though what made someone a worthy challenger was always subject to the needs of a storyline. Oddly, a great way of getting title shots was often to attack the champion or his close friend or family members. This is what I like to call “How to use assault and battery to your benefit” (a subject we will delve into more deeply at another time”). In this case, Mr. R received title shots because Dibiase was obsessed with proving he was Tommy Rich. Of course, everybody figured out it was Tommy Rich, but let us not get distracted from the story.
Continue reading “Who is that Masked Man and why are we honoring a contract with him? (The Mr. R Angle Part II)”

A blast from the past and contract law

In 2012,I was saddened to hear about the death of Brad Armstrong. Armstrong was an amazing and underrated wrestler who was well-known in the industry as a man who was well liked and did everything possible to make his opponents look good in a match. It was a true loss for the industry because he was capable of teaching so much to so many.

So what does that have to do with the law? As I reflected on Brad Armstrong, I was reflecting upon when he first came into the national scene, wrestling in Georgia. He was a part of an incredible angle (or storyline if you prefer) that upon reflection can be used to take a look at the law. Continue reading “A blast from the past and contract law”