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How to sign a prenup when marrying a foreign lady? My girlfriend lives in China. She is a Chinese citizen. I'm an American. We want to get married My concern: I have kids so I want to protect them. So naturally i want to sign a prenup. If she was here in America, that would be a piece of cake. But how do I sign it there. Or is there any way to bring her here and then get married? | Applicable Law A marital agreement can be entered into both before marriage (a prenup) and after marriage (a postnup). And, it will have the same legal effect in either case once entered into by the parties. In practice, marital agreements are usually proposed by a more affluent spouse and are reviewed by a less affluent spouse who will be giving up many of the legal economic rights usually associated with being married because the alternative is to not get married at all and the less affluent spouse thinks that marriage is still worth it even with fewer economic rights. The governing principle of marital agreements is that they must be entered into with the highest level of voluntariness, good faith, and full disclosure. Typically, a prenup with (1) limit the rights of the less affluent spouse in a property division upon divorce, (2) limit the less affluent spouse's inheritance rights, (3) limit the less affluent spouse's right to maintenance (a.k.a. alimony) upon divorce or legal separation, and (4) limit the less affluent spouse's rights to attorneys' fees in the event of a divorce. Often, these limitations are phased in superficially more equal terms, but the agreement only has a practical affect limiting a spouse's legal economic rights in marriage on the less affluent spouse, when it is recognized that one spouse is starting out affluent and the other spouse is starting out less affluent. The question states that: "I have kids so I want to protect them." So, determining precisely what you want to protect your kids from and how, in a manner that your spouse, courts evaluating the agreement in the future, and immigration officials, would consider to be legitimate, would be critical. You should know what impact a death or divorce would have during a short lived marriage for someone in your shoes because you start trying to change the rules, because you might be surprised to learn that the status quo is less unfair than you believe it to be. For example, in many states, property owned by one party before the marriage was commenced is not subject to division as marital property upon divorce and often the right to alimony following a short marriage that does not produce children is quite modest. Also, if you are extremely worried about the possibility that your new marriage could fail and that this would force you to make economic sacrifices that you do not think would be acceptable under the status quo in the absence of a prenup, you might want to think twice about whether getting marriage in the way that you are planning to get marriage is really a good idea. Excessive worries about a break up that is damaging to you may be your subconscious's way of telling you that you have grave concerns about this marriage that could be deal breaking, as well as your outward positive hopes and dreams that may be unrealistic. You had a relationship or marriage that failed once. You may be ready for a more successful relationship now, but you need to be comfortable that the circumstances that caused your previous marriage to fail are unlikely to recur. No prenup will ever make a divorce easy or painless, although it can bring some predictability to the process, if a prenup is well drafted and reasonable. Typically, to prepare a valid marital agreement: it must be in writing; it will contain no invalid terms (e.g., in most cases, terms relating to child support or parental responsibilities, or terms that make marital fault relevant to the economic rights of the parties); both parties will have reviewed a complete disclosure of the other party's financial circumstances; each party will have had an opportunity to consult with a lawyer familiar this these agreements (at the other party's expense if the person agreeing to it can not afford a lawyer of their own); each party will review the terms of the agreement in a language that they can understand, and the circumstances under which the agreement is signed will not be under duress broadly defined (for example, to include presentation of the agreement on the eve of the wedding day without adequate time to consider its terms without undue negative consequences if the spouse does not agree). Typically, the lawyer for each party would sign the agreement to confirm that all formal requirements and counsel regarding the agreement has taken place. A marital agreement that doesn't meet the applicable legal standards (which vary state to state). I have cited the law in Colorado which requires parties to follow what would only be considered "best practices" in many other states, although there would be plenty of states where these legal standards would apply. A marital agreement is still not valid if it is unconscionable to a spouse at the time it is to be enforced, for example, leaving one spouse unable to meet her basic needs and the other spouse wealthy after a long marriage. There is no requirement that a prenup be signed in any particular country or place, so long as the person signing it understands that their signature is intended to be binding. There is no requirement that a prenup be signed by both spouses at the same time, as long as both spouses sign it before it is to become effective. Realistically, as of 2017 in an average cost of living U.S. area, you are probably looking a legal expenses and related expenses involved in making a prenup happen given the need for Chinese speaking legal professionals and logistical issues, at an expense of $7,500 to $15,000 or more to get a prenup done under this circumstances. You would need to decide if this expense was worth the benefit to you. Options It could be signed by your spouse while your spouse to be is in China, if the proper formalities are observed. In terms of the enforceability of the agreement, and the likelihood that it will be executed, this is probably the best option. But, as a practical matter this may be difficult to accomplish this because lawyers knowledgeable about U.S. law who can communicate in the spouse's topolect of Chinese may be hard to find, and Chinese attitudes towards prenups may be different from those of people in the U.S. Negotiating a prenup in the face of a quite new relationship that often doesn't have a lot of depth at the start and is based upon mutual hope and a belief that the couple has shared interests as much as an actual long term relationship prior to getting engaged (which is common in marriages of the kind described in this question) can present a difficult challenge for the couple as they develop a marriage relationship very early on in their process when they don't have a lot of communication and relationship foundation to build upon. Of course, there are exceptions to every rule. Suppose that you've known your girlfriend continuously since she was 14 years old and she is now 24 (you are 25) and both of you are fluently bilingual, because you grew up next to an embassy and she was the daughter of an embassy official and you went to prom together, and then the two of you went to college and graduate school together living together for five of those years. Suppose that she is from a wealthy family and needs the pre-nup to protect her family's wealth, and you are not very affluent despite being the U.S. spouse. Suppose that she's was a paralegal in a family law firm that draws up prenups when she was in college before moving back to China when she finished her studies, while you are a divorce lawyer, and that the two of you have talked about marital agreements for years. This might not be much of a relationship issue and might not pose the kinds of immigration questions raised below. But, if you fell into one of the exceptions to the general rule, you wouldn't be asking this question in the first place in all likelihood. It is possible to obtain a financee visa which allows a foreign spouse to immigrate to the United States with an intent to marry upon arrival. But, in that situation there would be real doubt about whether a marital agreement signed upon arrival would be truly voluntary because failing to agree to the prenup and not getting marriage as a result would result in the financee's immediate deportation and terminate a wedding that the wife had already moved half way across the world and given up everything to participate in. It is possible to execute a post-nup, but in that case, if it was truly voluntary, the wife probably wouldn't sign it because it would mean that she would be giving up rights that she had already acquired as a result of the marriage for nothing in return, and if it was involuntary, then it wouldn't be valid. (There are circumstances when a post-nup can make sense for a spouse to voluntarily enter into after marriage, for example, to make rich relatives comfortable including a person in their Will or making a large gift to one of the spouses that is intended to stay in the family but will benefit the spouse during the marriage and the couple's children, but the facts in the question don't naturally suggest any of those circumstances.) Immigration Concerns Unlike an ordinary marriage, which is presumed to be valid and in good faith, marriages which afford a spouse the right to immigrate to the U.S. and in due course, to become a U.S. citizen if certain other requirements are met, are carefully scrutinized for signs that it is a "sham marriage" and immigration judges can be quite skeptical in determining whether or not a marriage is a sham. Couples go to great lengths to prove otherwise, and the burden is effectively placed upon them to show that they are not engaged in marriage fraud and instead actually married for love. If a marriage with an immigrant is found to be a sham, the immigrant's visa will be revoked, the immigrant's citizenship application will be denied, and the immigrant may become deportable. There may also be sanctions for the citizen or permanent resident spouse who sponsored the immigrant. One factor among many that can be considered when determining if a marriage is a sham marriage or not is the existence of a prenup or postnup, and even more importantly, its terms. The more unfavorable the terms of the prenup or postnup are to the immigrant spouse, the more likely it is that an immigration official will conclude that a marriage is a sham for immigration purposes. There isn't a hard and fast rule, but it is one factor that is considered among others in reaching that determination. The key factors in evaluating a prenup for immigration purposes are the terms of the agreement. The more the immigrant spouse's legal rights in the marriage are limited, the more likely immigration officials are to view the marriage as a sham and the couple as engaged in marriage fraud. On the other hand, if all a prenup does is to insure that a new spouse and children from a former relationship have equal inheritance rights and no rights upon divorce are modified at all, immigration officials may view the prenup as relatively innocuous. Conclusion There are a lot of good reasons not to get a prenup in the circumstances you identify if most of my hunches about the usual circumstances involved when someone asks a question of the kind that you have are true. Before taking this step, you would be wise to consult with a lawyer to see what the likely economic and legal consequences of a divorce or death in the absence of a prenup would likely be in your case, as I suspect that your fears may be exaggerated or may involve issues that a prenup can't address. It could be that once you are well informed it is still clear to you that a prenup is a good decision. But, given multiple indications that this may not be a good choice for you, I would strongly suggest thinking twice about this decision after conferring with a lawyer about your individualized circumstances before going forward with this plan. | There are two models for citizenship, by location of birth and by the nationality of the parent. The US chiefly follows the first model, which is why only your grandma's father is American, and your grandma is not. By the same logic, you are not. Countries like Spain are far more lenient, and do allow you to request Spanish citizenship if you can show any of your direct ancestors are Spanish. That's possible because each country can make its own laws within reason. The international norm is that everybody should get at least a citizenship at birth; statelessness should not happen. | Choice of Law The place where you get married is irrelevant to the question of whether or not you need a pre-nuptial agreement. What matters is where you intend to live once you get married. A pre-nuptial agreement exists to change the default rules of law upon death and divorce. These rules differ from state to state, so the default rules you might modify depend upon where you intend to live after you get married, and so does the extent to which you need to modify those rules. Generally, a divorce will be governed by the law of the place where the couple resides when the divorce is commenced, and generally inheritance is governed by the laws of the place where the decedent (i.e. the dead person) was domiciled (which means something close to, but not the same as where the decedent resided) at death. Why Get A Pre-Nuptial Agreement? If you and your bride are happy with the default rules of law regarding divorce and inheritance in the place that you intend to live, there is no need for a pre-nuptial agreement. If the two of you are not content with the default rules of law regarding divorce and inheritance in the place that you intend to live, then a pre-nuptial agreement can change some, but not all, of those rules. Generally, a pre-nuptial agreement can change rules regarding property division, alimony and attorneys' fees, but not matters related to children or related to the grounds upon which you can get divorced or related to whether fault can be considered in a property division or alimony determination. What the pre-nuptial agreement would say would depend upon your objectives for entering into it. To answer your question it is necessary to know "what harm are you afraid of that a pre-nuptial agreement could prevent?" This has more to do with your expectations and values than it does with the law. Some reasons that people enter into pre-nuptial agreements include: preventing a spouse from inheriting or receiving in a divorce wealth that you inherited or might inherit in the future, because the donors might decide not to leave you inheritances otherwise; preserving wealth acquired by the spouse's respectively during life for one's adult children in a late in life marriage (e.g. during retirement) that is unlikely to produce more children. The Formalities Any pre-nuptial agreement should be drafted with both spouses represented by lawyers, and any competent lawyer should know the details of executing the document that are necessary to make it valid. If the agreement is drafted in English, which would make sense if she was moving to the U.S. to join you, she would need to have an interpreter in addition to a lawyer to help her evaluate and negotiate it, unless she was already fully fluent in English enough to understand advanced legal concepts (which would be very uncommon unless, for example, she went to school for many years in the U.S.). Immigration Considerations In the immigration process, U.S. immigration officials are skeptical that international marriages are legitimate and have the power to determine that an international marriage was a sham. One factor among many that immigration officials use to determine that a marriage was a sham entered into for immigration purposes is the existence of a pre-nuptial agreement that favors the citizen spouse. The more strongly the agreement favors the citizen spouse relative to the default rules of law, the more likely it is that immigration officials will determine that the marriage is a sham. It is not necessarily a factor that will cause the marriage to be found to be a sham, in and of itself, but it is an important factor that would be considered. If you enter into a pre-nuptial agreement, you are making it harder for your bride to become a U.S. citizen, and the more it favors you, the harder it will be for her to become a U.S. citizen. | It is legal. 18 USC Chapter 17 contains laws regarding what you can/cannot do with US legal tender. It doesn't mention anything about buying, or selling US tender at or above the face value. And there are several businesses in the USA that do this (coin exchanges which purchase coins at less then face value and give you dollar bills in return, etc...). However I would be concerned that your action might look like money laundering to the customs official on your way back home. Or on the way going to the foreign country for that matter. Which could be very bad for you. I would talk to a lawyer about this. | The common law is permissive That is to say that, in a common law jurisdiction, the law is about what you must not do rather than about what you must do. Now, particular statutes may be phrased as requiring certain actions but, if you read them the “common law way” to coin a phrase, they are really imposing sanctions for doing the prohibited thing that falls outside those parameters. Since there is no legal prohibition on using multiple names (simultaneously or sequentially) you are free to do so. Now, there are common law prohibitions of, for example, fraud or tax evasion. So, if you use different names for the purpose of doing those prohibited things, then that is illegal but it is the specific criminality that is sanctioned, not the use of the alias in perpetrating it. The UK has a law that makes it a crime to not register the birth of a child. It also imposes some (and by most country’s standards, very few) restrictions on the name a child can be registered under. But there is no legal obligation on the child or their parents to use the registered name in any particular circumstances. There may be difficulties (amounting to impossibility in some cases) in obtaining a passport, opening a bank account, or claiming social security under a non-registered name but that is due to the necessity to identify the individual for which the name serves as a proxy. However, outside the requirements of specific statutes or administrative procedures, the common law position is that your name is what people call you and you identify as your name. The second part is important - I have been called dickhead on many occasions but I do not consider it to be my name. The UK has a patronymic tradition for surnames so, usually, on marriage, the female adopts the surname of the male and that, through the marriage certificate, becomes her registered name. However, it is extremely common for women to continue to use their original (and now not registered) name in their professional life and her new name in her private life. This can be problematic. My wife, has on server all occasions been refused permission to board a plane because the ticket (booked by others) was in her maiden name - a name for which she has no official identification. However, that’s a procedural problem - she didn’t do anything illegal. | There is no requirement in California to file a prenuptial agreement before obtaining a license. There is a requirement for disclosure of property and finances, 7 days minimum to review the agreement and being represented by a lawyer or waiving representation, specifically: The party against whom enforcement is sought was represented by independent legal counsel at the time of signing the agreement or, after being advised to seek independent legal counsel, expressly waived, in a separate writing, representation by independent legal counsel. The advisement to seek independent legal counsel shall be made at least seven calendar days before the final agreement is signed. It is possible for a couple to write their own agreement without hiring separate lawyers, but the law is written so as to presume that if not advised by independent counsel, the agreement is unenforceable. The presumption can be overcome by carefully following the requirements of §1615, for example, the party against whom the agreement is to be enforced was fully informed of the terms and basic effect of the agreement as well as the rights and obligations the party was giving up by signing the agreement, and was proficient in the language in which the explanation of the party’s rights was conducted and in which the agreement was written. The explanation of the rights and obligations relinquished shall be memorialized in writing and delivered to the party prior to signing the agreement. The unrepresented party shall, on or before the signing of the premarital agreement, execute a document declaring that the party received the information required by this paragraph and indicating who provided that information. | Get a lawyer. That employer is skating on very, very thin ice. You can’t have a non-compete agreement in Germany at all without the employer paying reasonable compensation. What is reasonable is decided by courts, but half your last regular salary is not “reasonable”. Especially if this would endanger your status of being allowed to work in Germany. If you were a non-German EU citizen, any non-compete agreement would be immediately invalid because it violates the right of free movement; how nonEU citizens are affected, I don’t know. The rest of the agreement seems quite illegal to me. I would think that any good employment lawyer would love to take your case. | As user6726 notes in an answer, the page you link to derives from 26 USC 7701. However, it does not reproduce the text accurately. There, "United States person" is defined at section 7701(a)(30), and it notably lacks anything corresponding to "any other person that is not a foreign person." It's possible that that language is motivated by some court decision, but it's also possible that someone just added it for the sake of symmetry with the definition of "foreign person" without thinking about the logical paradox that it might create. Looking at section 7701, I don't see any explicit mention of US non-citizen nationals. It appears that such a person who does not live in one of the 50 states or the District of Columbia falls under the definition of nonresident alien at 7701(b)(1)(B) even though such a person is explicitly not an alien under the Immigration and Nationality Act. I do not see any regulations correcting this oversight, but I suppose that in practice such people are indeed treated as US citizens. I don't know enough about the classification of nonhuman legal persons as foreign or domestic to have any ideas about whether there are similar ambiguities there. |
Would it be legal to hold this sign up outside the White House or another government building? Would it be legal for me to hold up this sign in front of the White House, the Capitol, or the SCOTUS building? MENE MENE TEKEL UPHARSIN | Yes The case you want to know about is Cohen v. California: A young man was arrested for wearing a jacket with the words "Fuck the Draft" and SCOTUS decided, that that was First Amendment-protected speech and the arrest illegal. The phrase מנא מנא תקל ופרסין is in Akkadian or Aramaic language but Hebrew script (as opposed to the Akkadian Cuneiform) and can be transcribed as Mene Mene Tekel Upharsin. It is also known in German as "Menetekel" or in English as the "Writing on the wall". It stems from the biblical episode of Belshazzar's feast. Literally, the text would be read as "counted, counted, weighed, distributed". Its meaning elaborated in Daniel 5 is generally understood as "Your days are numbered; Your days are numbered; You have been measured and found wanting; Your kingdom will fall and be divided". While stemming from religious texts, in the depicted situation it is more likely meant as political speech, and in that fashion indistinguishable from a flag. It also does not call for imminent lawless action - the so-called Brandenburg Test after Brandenburg v Ohio - and thus remains in the protected speech area. Remember, that even preaching genocide can be First amendment protected, as long as that line of imminent lawless action is not overstepped. As this phrase does neither, it is protected speech. | I do not know the particular legal environment in France, but in general the shop is private property and the owner decides who may enter and who may not. You have no right as such to enter somebody else's property against their will. Doing so would at least be classified as trespassing, possibly more serious considering you mention using force to enter the premise. | I don't know of any legal reason to care whether people consider reverse graffiti to be graffiti, since graffiti is not itself a legal concept. The act when done without permission is, however, trespassing, which is against the law. Painting a building is legal, if done with permission; painting a building in a pattern is legal, if done with permission. Strangely enough, cleaning a building without permission, whether entirely of selectively in a pattern, is illegal. There are in fact specific laws about defacing property, so the illegality of the act does not rely solely on trespass laws. The NYC law is here, the California law is here, and there are many similar laws. In Washington, illegality arises from a more general prohibition against causing physical damage, which is defined here, and boils down to "costs money to fix". These laws are not limited to "applying opaque material to a surface". | Following the links in the article you quoted, you find that it is indeed illegal in Germany to insult a foreign head of state. For a prosecution to happen, the foreign government has to ask for prosecution, and it would be a criminal case. It's not clear to me whether a TV station could be sued as well. Where Mr. Böhmermann lives would be irrelevant, what would be relevant is whether the insult happened in Germany. | The law you cite says that the Secretary shall furnish such committee with any return or return information specified in such request That includes specific individual returns. That it was intended to include such returns is made clear by the provisions restricting identifiable individual data to executive session. Whether this ought to be the law might well be debated. Whether the House ought to use this law as a way to get at Trump's returns could also be debated. Those are matters of politics, or perhaps ethics, not law. Whether some other provision of law overrides this provision in this case is pretty clearly going to be argued in court, and we will see what the decision is. I won't try to predict it here. | Note, Washington State Senate Bill 5061 seeks to block certain "untracable" firearms without a serial number. This relates in part to "3D printable" guns, but the act of milling of a 80% lower (in Washington) could be a violation, if and when it passes. But it appears the bill hasn't been made a law yet... Is Washington specific news this issue what drives the question? Federally, the ATF web site says: Receiver blanks that do not meet the definition of a "firearm" are not subject to regulation under the GCA. The ATF has long held that items such as receiver blanks, "castings" or "machined bodies" in which the fire-control cavity area is completely solid and un-machined have not reached the "stage of manufacture" which would result in the classification of a firearm per the GCA. But this gets a bit technical. For further risk mitigation, the Texan could mitigate any risk related to both Federal and Washington state law by shipping it to a federal firearms licensee (FFL) in Washington as if it were a firearm, per ATM instructions which say (in part): Generally, for a person to lawfully transfer a firearm to an unlicensed person who resides out of State, the firearm must be shipped to a Federal Firearms Licensee (FFL) within the recipient’s State of residence. He or she may then receive the firearm from the FFL upon completion of an ATF Form 4473 and a NICS background check. That FFL is then responsible for ensuring the transaction properly conducted in the state of Washington, including federal and state requirements. The FFL I contacted only charged $25.00 (plus collecting the state sales tax). Form 4473 was easy enough; only about one page for me to fill out. Of course, I've got a clean record, so going through channels isn't a problem for me, it took less than an hour. The FFL confirmed for me that it wasn't necessary for something like an antique musket, which legally isn't a firearm by the federal defeinitions. In my case the sender was a nervous "trust" lawyer who wasn't sure, hired yet another lawyer to advise him. The FFL didn't charge me anything for receiving that musket. | Probably not It’s extremely likely that the adjoining properties have easements for support over the land which gives them the right to build on it. Even if they don’t, he can’t damage their property by removing the essential structures on his land. He could sue for trespass which his neighbors could easily settle by offering to compensate him for his loss - the $50 the land is worth. | There is no law against a person creating and distributing such a poster, to the best of my knowledge. However such a poster pretty clearly implies that the person shown is guilty of a crime, or at least strongly suspected. If the store somehow made an error, pulling the image of a person who did not use the stolen card or there is some other error, the person pictured might well suffer a significant loss of reputation, and might sue for defamation. Damages could possibly be significant. Such suits have, I believe, happened when surveillance photos were posted but there later proved to have been an error. Mary might wish to double check how sure the store is that the photos are of the person who actually used the stolen card. |
Call from detective say hypothetically someone committed a the crime of stealing a public sign and being publicly intoxicated under the age of 21.. The next day a detective calls asking to talk in person and says they "are not going to get arrested" What should the person do? Show up alone? Show up with a lawyer? Show up but don't say anything and then ask to speak with a lawyer? Don't show up at all? This is all hypothetically in the united states in Pennsylvania | You don't have to talk to the police. All taking a lawyer with you will do is have someone to remind you not to talk to the police, and short your bank account a couple hundred dollars. Tell the detective you're busy. The detective saying you "are not going to be arrested" means absolutely nothing. When they show up to talk to you, don't go to the door unless they have a warrant. | Without a witness willing to break their silence, we will probably never be certain. It is possible that this was harassment (current ordinance, not 1999 – version in force at that time not available), defined in Arvada if one has the intent to annoy (etc.) and "Repeatedly insults, taunts, challenges, or makes communications in offensively coarse language to another in a manner likely to provoke a violent or disorderly response" (the "record" indicates that there was a pattern of such conduct). We don't actually know that he was fined (hearsay...). | he was arrested despite technically not doing anything wrong He was arrested because there was probable cause to believe that he was involved in the commission of a felony. The arrest was legal even if he was innocent. He has no basis for a successful lawsuit. | Of course The prosecution just needs to prove that the crime happened (or the defendant believed it to have happened) and you helped (in brief, there will be specific elements of the crime that each need to be proved). This would be easier if the primary crime had a convicted perpetrator but it’s not impossible without. Allow me to illustrate with an example. I will set out facts which are somewhat contrived and would not be so clear cut in a real case but for the purposes of the example please take them as undisputed and fully supported by evidence. John and Jill are in a relationship. This relationship is well known to be argumentative with frequent shouting matches and one or the other storming out. This does not amount to domestic violence by either party. John's friend Alan believes (wrongly) that there is domestic violence. During an argument Jill drops dead of a heart attack. John rings Alan distraught and says "I've killed her." Alan assumes (wrongly) that John has murdered Jill. Alan says "i'll take care of it. You go to your dad's". Alan (alone) disposes of the body. John is not guilty of murder (or indeed, anything). Alan is guilty of accessory to murder even though the actual crime never happened. The fact that Alan believed it happened is enough. | Given there was no answer here, I will state what I know about child abuse response, but note I am not a lawyer nor am I in Illinois, so my statements are likely generalized for most US states (individual laws vary by state, and I reside in Pennsylvania). In most US states, the police and child/youth services (that's what it's called in Pennsylvania but all states have similar services) work side by side and a complaint by the child to a police officer will have an emergency action taken to protect the child. The child is identified as a victim and the police and child/youth services have the obligation to protect the child and to keep them from harm. This is the main goal of police and children/youth services - to keep the child safe and act in the best interest of the child. Usually, a complaint to a child abuse center can take time to process. When a police complaint comes in it is more immediate, with police having more 'influence' with CYS (child/youth services). Especially when the child is in deadly danger (they were just stabbed, after all), the police may arrest the mother or abusive sibling or intervene therein to remove the child from the parents care with CYS-equivalent services working to find suitable alternative living situations for the child as a result of a order of removal/protection authorized by a judge. (PA at least had emergency situation response plans for these situations where a judge is just a phone call away). As well, the child will likely be made a ward of the state if the courts determine the mother cannot care for the child or is a threat as such (not caring enough to stop the brother may count), insomuch that the child may be removed from the dangerous situation and placed in the care of a willing relative or if none can be found will be placed in temporary foster care in a safer environment. Note that nothing happens rapidly without the initial complaint to the police. At age 16 the child is likely going to be taken more seriously (compared to a 12 year old, for example), and has the right to be allowed to reach out to hospital staff to ask to speak to a police officer - otherwise it takes a child abuse complaint from someone who knows the child and situation and that can sometimes take longer to process (though, the distance factor in the original question may make a complaint from overseas given a lower priority due to not knowing the person on a more personal in-person level) | You did not commit any crime, but that does not mean you cannot be charged with a crime. Up to the point where you take the item back out of your pocket, a police officer would have probable cause to believe you were attempting to steal the merchandise, and probable cause is all he would need to charge you. At trial, the government would have the burden of proving that you intended to actually steal the item, but it can satisfy that burden merely by showing that your actions were consistent with such an intention. You would have the option of testifying that you planned to pay for the item. From there, it would be up to a jury to decide whether it believes you. If so, you should be acquitted. If not, you would likely be convicted, and your conviction would likely be affirmed on appeal. | The police can arrest and charge anyone if they have a reasonable belief that a crime has been committed so: yes. However, if the question is: can they secure a conviction the answer is a resounding no. North Carolina law has three prohibitions on minors and alcohol: supplying to, possession of and buying. Possession is easily dealt with: the minor never possessed the alcohol. Supplying is also dealt with perfunctorily: the supply went from the restaurant to a person 21 or over. This only leaves buying. Now, buying something requires a contract (or since the object is illegal, what would be a contract but for that). Did the minor have a contract with anyone? That is, were they under an obligation to pay for the alcohol? No. If the pair had skipped out on the bill, the restaurant would pursue the adult for payment because that is who they have a contract with. Any arrangement between the diners as to how they will split the bill is a private, unenforceable arrangement, not a contract. | In the United States, you can always choose to (try to) flee police. If the police subsequently assert that they tried to detain you, then they can choose to charge you with a number of crimes (which vary by jurisdiction). The assertion that you did not (or could not) in fact hear or perceive a lawful order to stop is a defense that you could raise in response to such charges. It is up to the triers of fact to determine whether, given the specifics of the case, they accept that defense. |
Is an edited version of a trademark covered through the original trademark in the UK? Is a shortened or edited version of a trademark covered by the initial trademark. Take the following for example: If someone were to use this name or logo while removing the 'studio', would this be in violation of the trademark? I ask this in reference to a scenario in the UK with a UK trademark, although I'm aware that there may be an international standard for this. | Trademarks protect against consumer confusion. Ask yourself if a consumer seeing that image with the "studio" portion removed might think that the altered image represents the same company as the original image. Of course, the answer will be "yes." But in the end it also depends on how the trademark is used. You've used the original image in the question; have you violated the trademark? No. Do you violate Tesco's trademark when you say "I went shopping at Tesco"? No. Do you violate their trademark when you sell food using the name "Tesco"? Yes. A distinctive graphic design such as this will also be protected by copyright, so you will also have to consider whether your intended use infringes copyright. | Does the registrant still have common law rights over the mark? Maybe. According to Yospin Law, Just because a mark is listed as “dead” at the USPTO, does not mean it is available to use without registration, or to register. It’s possible that the registrant of the trademark abandoned the federal trademark registration, but is still using the mark – and so still has common law trademark rights. Does this mean the registrant can never register this mark again? No. It does not mean the trademark can never be registered again. However, a new application for registration of the mark must be made. This registration is completely separate from the previous one - it's effectively registering a new mark that happens to be identical to an old one, without the problems that would normally cause. Can another entity register this mark for the same purpose? Possibly. If it remains in use under common law rights, you would face an uphill battle to successfully register it for yourself. If it is truly abandoned, you can apply for registration, but as Beth Hutchens discussed, this is not a simple matter of filling out the form and celebrating your new acquisition. Here is a handy brief summary, but for any actual case, your first step should be to consult a patent and trademark attorney, particularly one experienced in the jurisdiction you intend to use the mark in. | A proof can be protected by copyright. The underlying facts of math cannot. But if one has copied details of the order of the proof, or of the selection of theorems to use, and if several other choices would have been possible, then the new proof may constitute a trivially modified copy, or a derivative work, and in either case making of it might be copyright infringement. However, making and distributing a copy, even with no changes at all, for purposes of comment and criticism, might be fair use in the US, fair dealing in the UK or some other parts of the Commonwealth, or fall under an exception to copyright in other countries (these generally vary significantly by country). This is usually a very fact-driven question. | Under US law: It depends, but it is likely legal. Trademark is designed to prevent confusion in consumers, to avoid someone's good work and reputation from being taken advantage of by another, and/or damaged by another's poor work/service. The game's name and character names are (generally) not trademarked, nor are they copyrightable. Even if they were, there is nominative fair use to consider as a defense. There are still some legal issues that might occur (e.g. this does not apply to the novel's name; using the game's logo on cover art might constitute trademark violation if it was so positioned as to be associating a relationship with the game publisher, descriptions of the game's content, especially story content, is a bit hazy), but not with using the game name or character names. | Copyright is irrelevant, because names are not protected by copyright. Trademark is relevant: a name can be protected by a trademark. "Yoda" is a registered trademark owned by Lucasfilms, a subsidiary of Disney. There is a list of goods and services where the property right is asserted, so for example you could get sued for peddling art books under this name. It just depends on what your business does. For instance, a plumbing business isn't competing with Lucasfilms w.r.t. that class of goods and services. | We can't tell you if you can do that or not, because that would be specific legal advise. You should consult an attorney who specializes in trademark law to get an estimation of how risky it would be to use that name. So I am just giving you a couple general pointers. Names are not protected by copyright, but by trademarks. The purpose of trademarks is to prevent consumer confusion. They are supposed to prevent someone from selling a product under a name which consumers might mistake for official merchandise of someone else. Media companies in particular tend to be very protective of their trademarks, because merchandising is often one of their main sources of revenue. And they don't want to share that revenue with people creating knockoff products. Also, they must fight for their trademark in court, because when they only enforce it selectively, then they risk that a court will consider the mark so widely used already that it is no longer worth protecting. But the show is from the 1950s. Is the trademark still protected after all that time? Maybe. There are registered trademarks and unregistered trademarks. Registered trademarks, which usually but not always are followed by an "®" symbol, need to be renewed in regular intervals. So if someone still pays for the renewal, it might still be a protected trademark. Unregistered trademarks, which usually but not always are followed by a "™" symbol, are protected as long as they are "used in commerce". Which means that if the IP owner of that show still sells products branded as "Winky Dink and you", they can probably still claim unregistered trademark protection. In order to find out, you would need to do your own research or pay your attorney to do a trademark research for you. Are your proposed names even a trademark violation? Perhaps, perhaps not. That's for a court to decide. Personally I think that "Winky Dink and Me" is more infringing than "My Winky Dink Syndrome", because the first is a lot closer to the original name and brand image, giving it a higher likeliness of causing consumers to mistake it for an official "Winky Dink and You" product. But that's an argument you got to make in court. Estimating the chance that the judge will side with you and how much in legal costs it will take you to get to the point where you are even going to have the opportunity to make that argument is a job for your attorney. | No This summarizes the situation with Disney specifically. The Disney trademarks are so ubiquitous and recognizable as being Disney's and not, for example, yours that your use is bound to create confusion in the minds of the public that your business is in some way associated with Disney. That is the essence of trademark infringement. In particular, where your business has nothing to do with the characters it is clear that you are only using them for the cachet of the Disney reputation. Disney will defend their trademarks - this is not at all unlikely. | The use may constitute trademark infringement if it implies sponsorship or endorsement I'm going to assume US jurisdiction for this question, because you've not provided one, and you haven't provided enough car manufacturer names to suggest that this wouldn't apply to the US. I'll also only cover Federal law (the cases were tried in state courts), so be aware that there may be additional responsibilities under state law that I don't examine here. 15 U.S. Code § 1114: (1) Any person who shall, without the consent of the registrant— (a) use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; or (b) reproduce, counterfeit, copy, or colorably imitate a registered mark and apply such reproduction, counterfeit, copy, or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used in commerce upon or in connection with the sale, offering for sale, distribution, or advertising of goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive, shall be liable in a civil action by the registrant for the remedies hereinafter provided. Under subsection (b) hereof, the registrant shall not be entitled to recover profits or damages unless the acts have been committed with knowledge that such imitation is intended to be used to cause confusion, or to cause mistake, or to deceive. 15 U.S. Code § 1125: (1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which— (A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act. These actions - the use of the trademarked manufacturer logo within the app - is likely to constitute trademark infringement, if the trademark owner's permission is not sought prior to publication, and the use of the trademark is likely to cause confusion as to the source, sponsorship or approval of the goods. What this means, is that if the trademarks are used in such a way that a reasonable person is likely to think that: The product is an official product from the owner/brand associated with the trademark; The product is sponsored by the owner/brand associated with the trademark; or The product is approved or endorsed by the owner/brand associated with the trademark. Then an action in trademark infringement may be brought by the trademark owner. Consider the following two cases: Polaroid Corp. v. Polarad Elect. Corp., 287 F.2d 492 (2d Cir. 1961) In this case, judgement was made for the defendant, as the defendant's field was not considered close enough to the plaintiff's for there to be a likely chance of confusion. AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir. 1979) In this case the trial judge decided that the trademarks Slickcraft and Sleekcraft were unlikely to cause confusion. This ruling was overturned on appeal and an injunction was ordered by the court. Possible defenses Nominative use of a mark When a mark is used solely to identify a product, this use is privileged. A descriptive mark used for its primary purpose Descriptive marks are a subtype of trademarks, which are descriptive in nature but have acquired a secondary meaning. Here, using a descriptive mark for its primary purpose has been found not to constitute infringement. General First Amendment protection Satire and parody are generally recognized as defenses if the primary purpose of the use is not directly commercial. If the products are not similar enough to be likely to cause confusion; and The use does not imply endorsement, sponsorship or approval of the product by the trademark owner then it should be fine. It seems that the situation in the question above would not give rise to confusion (unless the car manufacturer also develops an app, for instance), the second issue - endorsement - should be avoided. Many programs will have a legal section that includes ownership information and disclaims any association with the trademark owner(s). I have not been able to locate any cases where the effect of these sections have been tested. Further reading Overview of Trademark Law |
Is giving back a voucher instead of a refund legal? In the UK there is a sport accessories and outfits retailer called SportsDirect. They have this strange practice that I have never seen in any other UK retailer before, which is basically if you bought something from them but later you wanted to return it, they don't give you your money back, but instead they give you a voucher with the value that you can spend in the store. I am wondering if this is legal or not, doesn't this violate consumer rights? | england-and-wales The government grants limited rights of return (thanks Jen), for which you are entitled to a cash or cash-like refund (e.g. reversal of a credit card charge as described below). The vendor has the option to go above and beyond that statutory minimum as a courtesy to the customer. In that non-compulsory zone, they have the liberty to offer store scrip rather than a cash refund. Of course, any business can try to cheat you, and then you have to stick up for your rights by insisting or reporting to relevant authorities. united-states If you buy with a credit card, the rules and contractual obligations of the credit card companies oblige the merchant to accept returns by doing a refund to the card. It's important to understand how this happens: the merchant isn't just picking an arbitrary amount of money and doing a new "sale in reverse"... they are identifying a specific past transaction that already happened, and modifying or reversing it. That is a system safeguard so they don't credit the wrong person or be tricked into a reversal on a transaction that never happened. That's why they want your receipt. On a cash transaction, it is sellers prerogative whether to issue cash or store credit. Issuing store scrip is a reasonable option to deter theft and fraud. For instance someone who wanted an item could get it for free, by buying the item, taking it home, returning the next day without the item, grab another identical item off the shelf and sneak over to the CS line and "return" it with yesterday's receipt. With cash sales, that would be completely untrackable, and the thief is gone. With credit card, they have your identity; with scrip they can "flag" the scrip in their system to either prevent its use and/or have a security officer detain you if you try to use it. For instance American home stores will cheerfully take re-saleable condition items back even without a receipt, but will issue a store voucher for the value rather than cash. That policy would be a disaster if they refunded cash. As it is, I find it rather convenient! So if you want the convenience of cash refunds, you can just use credit cards - gaining the feature at the expense of anonymity. | This is an internet transaction Internet transactions can be reversed within 14 days after delivery of physical goods without the need to state reasons in germany. That is "Rücktritt vom Kaufvertrag". However, you are needed to send back the product and might be required to pay the shipping fees, depending on the original contract. This is a materially flawed product You ordered a book with text A. You got text B. That is a material flaw and you can demand the correction of such a material flaw (Mangel) at the expense of the seller, including any postage. However, if the text was provided by you or the original order form is indicating text B instead of A, the mistake is on you. | On the first page of https://www.gov.uk/duty-free-goods/overview you find: "You can bring some goods from abroad without having to pay UK tax or ‘duty’ (customs charges), as long as they’re for your own use." And on the next page "... will use them yourself or give them away as a gift". This clearly doesn't cover anything that you bring into the UK to sell it. And a bit further on the site it says "You must tell customs (known as ‘declaring’) on arrival in the UK if you have goods: ... that you plan to sell". Since you are asking here, it is quite obvious that you intend to sell :-) You said "e.g. say this guys comes every month from Russia to France for unrelated business, each time he fills up his luggage with the maximum allowed amount of goods that comply with custom laws". If this guy sells the stuff to you, then the maximum allowed amount of goods to import without paying taxes is zero. Once he is willing to pay taxes, there is no limit. Obviously regularly importing things from Russia or France and selling in the UK at a profit means that he is running a business in the UK, which means he would have to register a business, pay corporation taxes etc. It's all a matter of degree; for small amounts nobody cares (up to some limit you don't need to register a business or pay taxes; I don't know the details). | germany Yes, such clauses are common and useful. § 437 BGB describes the rights of the buyer in case of defects, such as reducing the purchase price, demanding cure, or revoking the contract. But these options only exist “unless otherwise specified”. That means an individual contract can exclude these rights (commonly called a Gewährleistungsausschluss). There are, of course, some limitations to the right to disclaim warranties. The disclaimers are ineffective if the seller keeps a known defect secret. The disclaimers cannot absolve the seller from all liability. While disclaimers can be part of individual contracts, they cannot be part of pre-formulated general terms and conditions (Allgemeine Geschäftsbedingungen, AGB) since they would disproportionally disadvantage one party. The relevant limits are given in § 309 BGB. Thus, such warranty disclaimers are common in private sales, but not generally possible in a B2C context. There is however some debate how a warranty disclaimer should be phrased properly. Your phrasing “private sale, no warranties or returns” might not be effective e.g. if its pre-formulated nature gives its the character of AGB, or if the unqualified disclaimer of warranties is construed as an invalid attempt to disclaim liabilities that cannot be disclaimed. It might also be worth discussing what a “defect” is in this context. The sold goods have qualities that the parties agreed to, or that follow from the general purpose of the goods. If the goods do not feature these qualities, the goods are defective and (by default) the buyer can ask the seller to fix this, for example by withdrawing from the contract. In retail, it is also common to accept returns of non-defective items. But such returns are entirely a matter of goodwill and do not have to be disclaimed. | It isn't necessarily "illegal" (in the sense you are committing a crime) but you may be in violation of a verbal contract (which would fall under tort law). Let's take this a bit further. Perhaps Joe Schmoe gave you his debit card information so that you could make deposits for him and he said you could take $5 out for yourself for the trouble. This is a contract between you and Joe for a service. You can't extend Joe's offer to Jane Doe by saying "here is some debit card information, take $2.50 out for yourself". You have no right to extend your contract with Joe to somebody else. Now specifically for passwords it basically boils down to the same thing. Unless Joe gives you explicit permission to give that to somebody else, you can't just decide to unilaterally give what Joe gave you to somebody else. This may be different if Joe said "here, I'm buying you a subscription to service XYZ because you are a nice guy", this may be construed as a gift which transfers ownership. At that point you have control over what is or isn't done with the account. As another example let's say Joe let you borrow his car. You can't turn around and say to Jane, "here's a car you can use", Joe did not extend the offer to Jane, nor did Joe give you the right to extend the offer to another person. It's a moot point though, in the original context of this question, Netflix does restrict you from sharing your passwords "outside your household". Almost every paid service has some restriction against sharing with others. In the end Netflix may shut off Joe's account and Joe may sue you for damages, but you aren't going to be thrown in jail for this. This would be a civil case (tort) which you may be liable for monetary damages. | It is legal and quite common. Your choice as consumer is at the point of selecting insurance company. If you dislike ES enough, that would be a reason to select a different insurance company. It would be surprising if your ES contract disallows pharmacy pick-up, but even if it did, that would also be legal. This does not mean that the government doesn't have the power to break up Express Scripts, under anti-trust laws. There is no clear rule regarding how successful a company can be in attracting customers. | Canadian law defines "theft" thus: Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent (to deprive the owner, pledge as security, mess it up) In this case, you accepted what seemed to be an offer of a free pizza, so if you took and consumed the pizza you did so with a colorable claim of right and without fraud. Perhaps you misunderstood, but it is not a crime to misunderstand another person's intent. They could sue you for the cost of the pizza (assuming that you took it and did not pay), in which case the question would be whether whatever they said to you could reasonably be interpreted as an offer of a free pizza (if not, pay for the pizza). As an advertising stunt, this would not be unusual. However, if they fix the pizza but then demand money before handing over the pizza, you now know that you have no right to the pizza (if you abscond with the pizza in that circumstance, it would be theft). You may of course pay for the pizza, but you can also not pay and not take the pizza. Again, they could sue you, and in this case your defense would be that there was no contract (no agreement). An important question would be how reasonable it is to believe that you were offered a free pizza. People are offered "free" steak dinners all the time (at the cost of sitting through a sales pitch), so that is a reasonable belief. If a Lexus yacht salesman appears to be offering you a free $5M yacht, it is not reasonable to think that this is an ordinary advertising stunt, if you're not a celebrity. | The question does not say what reasons the other party gives for not paying, and so one cannot judge whether such reason is covered by the terms quoted in the question. In general a contract need not be highly specific if the intent is clear. However, any ambiguity will usually be resolved against the party who wrote the contract, so it is in that party's interest to be as clear and specific as possible. It is not clear from the quoted terms that they form a contract at all. No consideration is stated. Contractual provisions which deny all recourse are not always enforceable. They may be overruled by law or regulation, or by prior court decision or by an equitable decision. If there is a serious problem with the service provided, particularly in a consumer transaction, a court might reject a provision denying all refunds even if it is quite specific and clear. The question does not list the jurisdiction (country and, for federal countries, state or province). Laws on contracts and enforceable terms vary significantly in different jurisdictions. Without this a specific answer is not possible. |
Why is knowledge inside one's head considered privileged information but knowledge written on a piece of paper is not? At least in the US, one can refuse to reveal information contained inside one's head by pleading the Fifth Amendment. However, the same protections don't apply to papers (or computer files) with information you might not want to share with the government. But why does this distinction exist at all? Why does the law make a distinction as to the medium in which certain information is contained? | The Fifth Amendment protection relates to a repugnant act, that of forcing a person to testify against themselves, and it is not about ways of looking at "information". The relevant (legally-ancient) distinction is between a general inquiry and an accusation. The courts have always had the power to make a general inquiry, but there have been limits on the ability of the courts to make accusations. It is a fundamental requirement of law that there must be an accuser, if there is to be a criminal proceeding. But is it also considered to be morally repugnant to force a person to accuse themselves. The difference lies not in the informational content in question, it is in what act – compelled self-accusation – is excluded from the legal system. | If you are worried that some secret will become public, you should find and meet with an attorney, not a financial adviser or other nonlawyer. Your attorney is able to shield your secret information from disclosure in ways other professionals cannot. Raise any credit score issues you're concerned about. In general, the public has a right to access judicial records. See Nixon v. Warner Communications, Inc., 435 US 589, 597 (1978) (noting that the right is rarely litigated and not clearly defined). That right is not absolute; some records can be sealed, which means that the public can't read them. Local rules govern when that happens. I don't think the existence of a civil lawsuit could be made secretly except in special circumstances. Likewise, the plaintiff usually must identify herself, except in special circumstances. A plaintiff should assume that everything about the lawsuit--who filed it, against whom, what evidence arises, the trial, and who wins and loses--will be public. | I'm not a lawyer, but under the law as it's written, I see two problems: 17 USC 121 allows "authorized entities" to make and publish accessible copies of works. An "authorized entity" is defined as a nonprofit organization or a governmental agency that has a primary mission to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities. So if you, as a private citizen, decide to do this, it could conceivably be copyright infringement. You might have to set up some kind of non-profit organization to make it legal. It's also OK (I think) if you make such copies for your own personal use, so long as you don't redistribute them. So far as I can tell, nothing under 17 USC 121 requires the original publisher to provide an "authorized entity" with a copy in any particular format (PDF, paper, or otherwise) for making accessible copies. Basically, the law seems to have envisioned organizations of sighted people purchasing paper copies, transcribing them, and republishing them; not blind individuals doing electronic transcription for themselves. It might still be worth contacting Hal Leonard and asking what they can do for you, but unfortunately it doesn't look like the law requires them to do anything for you. As Nij points out in the comments, this really seems to be a question about the company's policy, rather than the law. | As for the subject matter (what can be protected), amplitude, frequency, harmonic pattern, duration etc. are all physical facts, and there is no protection for physical facts. The basic requirement is that the thing protected must be "creative". Once you have a creative composition (assuming it is a composition, where infringement is harder to establish), the question arises whether a particular other composition infringes, or is an independent creation deserving its own protection. Again, the law does not deal in technical acoustic properties, and "similarity" is dealt with in an essentially subjective manner. The find of fact, who is an ordinary observer, has to weight all of the evidence and decide whether there is substantial similarity (or striking similarity) which could be evidence of infringement (substantial similarity is not against the law, copyright infringement is). Both parties to the litigation will present testimony supporting their contention and refuting the others' contention. At some point, one side is likely to introduce expert testimony to the effect that there are only so many possible melodies, which if persuasive can overcome a feeling that two compositions are rather similar. The law only addresses the logic of that judgment, and not the scientific facts. For example, in the case of Testa v. Janssen, the legal premise is set doen that "proof of direct access is unnecessary where striking similarities between two works are present". HOw then do you know if there are striking similarities? To prove that similarities are striking, plaintiffs must demonstrate that "such similarities are of a kind that can only be explained by copying, rather than by coincidence, independent creation, or prior common source." Stratchborneo v. Arc Music Corp., 357 F. Supp. 1393, 1403 (S.D.N.Y.1973) citing a previous ruling on that point. Ultimately, the courts cannot not dictate a scientific procedure for making that determination. | The tort for this kind of activity is called public disclosure of private facts, and almost every U.S. state recognizes that this tort is invalid under the First Amendment in the absence of a legal duty not to disclose of the type existing between an attorney and client, or a psychotherapist and a patient, or a contractual non-disclosure agreement, that does not exist between roommates. There is nothing illegal about your roommate's conduct. Your best move at this point is to take responsibility for your own conduct, to repent and to convince the world that you're doing your best to get on the straight and narrow going forward. If your former roommate insisted on payment for not disclosing the information, that would be extortion, but there is nothing wrong with going ahead and disseminating it without trying to obtain something of value from you for not doing so. | Yes. Operating under those assumptions, this would be a First Amendment violation under controlling law in D.C. The starting point is Sherrill v. Knight, 569 F.2d 124 (D.C. Cir. 1977), which held that "denial of a pass potentially infringes upon first amendment guarantees." In that case, the Nixon White House refused to issue a press pass to a reporter for a liberal magazine, but refused to explain why beyond citing "reasons of security." The D.C. Circuit said that if the White House intended to open itself to the press, it needed to do so in ways that did not offend the First Amendment. White House press facilities having been made publicly available as a source of information for newsmen, the protection afforded newsgathering under the first amendment guarantee of freedom of the press requires that this access not be denied arbitrarily or for less than compelling reasons. Not only newsmen and the publications for which they write, but also the public at large have an interest protected by the first amendment in assuring that restrictions on newsgathering be no more arduous than necessary, and that individual newsmen not be arbitrarily excluded from sources of information. Given these important first amendment rights implicated by refusal to grant White House press passes to bona fide Washington journalists, such refusal must be based on a compelling governmental interest. Clearly, protection of the President is a compelling, “even an overwhelming,” interest... However, this standard for denial of a press pass has never been formally articulated or published. Merely informing individual rejected applicants that rejection was for “reasons of security” does not inform the public or other potential applicants of the basis for exclusion of journalists from White House press facilities. Moreover, we think that the phrase “reasons of security” is unnecessarily vague and subject to ambiguous interpretation. Therefore, we are of the opinion that appellants must publish or otherwise make publicly known the actual standard employed in determining whether an otherwise eligible journalist will obtain a White House press pass. Sherrill v. Knight, 569 F.2d 124, 129–30 (D.C. Cir. 1977). In a nutshell, Sherrill is saying that when the government is granting press credentials to some and denying them to others, First Amendment principles require it to meet basic due-process requirements of notice and an opportunity to be heard. Therefore, those denied with an explanation for the denial and an opportunity to contest that denial. In this case, it's not clear whether the White House has provided Acosta with a hearing and notice at all, which would itself be a violation if that situation continues for too long. But even if it does, the White House could not use the procedure to punish Acosta for exercising the First Amendment principles that the procedure is designed to protect. If the opposite were true, i.e., Acosta "laid hands" on the intern, I'd guess that that would be enough to revoke his credentials, assuming the White House went through the appropriate procedure. Sherrill explicitly recognizes protecting the President and his family as a valid basis for denying access, and I assume the courts would extend that protection to White House staff, especially if the White House were to argue that an assault on staff suggests that the person can't be trusted around the president himself. | Does the HOA's lawyer have a duty or is it standard practice to label documents (including) as privileged if it contains privileged information? While it is sometimes labeled, this is done by attorneys when it is done, mostly to prevent stupid clients from sharing the information and waiving the privilege. Usually, however, documents are not marked as privileged in advance and when documents are requested from a third-party this analysis is usually done by junior attorneys and paralegals working as a team for the first time. Formal designation is not required because the definition of what is protected is defined by statute and common law rules on a uniform basis. The duty to share information with HOA members does not generally extend to privileged information. If a document that would otherwise be required to be disclosed (like attorney invoices) contains privileged information, the usual course of action is to redact the invoice so that it contains only non-privileged information (e.g. a bottom line amount owed and the date of the invoice and the matter). In an HOA context, the privilege of the HOA as a client belongs functionally to the board and its officers, not to all of the members of the HOA. Does the Association's contractor who maintains the records have a duty to act as a gatekeeper to said invoices if they are not labeled? This depends upon the contract between the Association and the contractor. A well written contract would include this duty, and spell out the mechanics of how it is implemented, but not all contracts live up to best practices. A related issue is whether a release of privileged information by an independent contractor constitutes a waiver of the privilege by the client if the contractor is not in an agent-principal relationship with the Association, which is often a determination made only after the fact by a court. Some jurisdictions' rules of civil procedure provide a waiting period between the issuance of a third-party subpoena for documents and the earliest time that those documents can be delivered to a third-party, to allow objections on grounds of privilege or another basis to be raised prior to the disclosure of the documents. Colorado Rule of Civil Procedure 45, for example, has such a provision. I don't know what the rule is in Florida on that issue. | Different kinds of court records are subject to different rules, but generally speaking, the public has a right to access the complaint in a civil case, derived from both the First Amendment and common law. Under common law, the Court should only block public access if it determines that some interest in secrecy outweighs the interests promoted by the general policy of openness, which include the promotion of actual fairness and the appearance of fairness, community therapeutic value, and facilitating news coverage of the case. Even if you can get the records sealed under the common law test, you still need to pass the First Amendment test, which asks whether there is a compelling governmental interest in limiting access to the record and whether sealing it is the least restrictive way of achieving that interest. The answer to both questions is usually no. In applying those tests, HIPAA neither requires nor permits courts to make exceptions to the public's right to access court records. Its privacy rules only govern protected health information in the possession of medical providers, insurers, etc. This means that filing a medical malpractice case will almost certainly result in the facts underlying that case becoming part of the public record. One could petition the court to seal portions of the record if they were particularly sensitive, but the court is basically required to do whatever it can to avoid granting that motion. |
Is a witness on the stand allowed to take notes? I have read that witnesses in a court are allowed to refer to notes when they are testifying, but, without regard as to why they might feel a need to, are they allowed to take notes while they are being questioned? (Inspired by the question What remedies can a witness use to satisfy the "all the truth" portion of his oath? here on Law.SE, but I am not looking for any specific country.) | I've never heard of a rule specifically addressing this in the united-states, but I expect most courts would disallow it. I suspect a court would believe that the note-taking would be a distraction to the witness, whose focus should be on listening to the questions and providing truthful answers. The note-taking may be perceived as a distraction from the testimony for others in the courtroom, as well. If I were examining the witness, I would probably be entitled to see what the notes say, dragging out the witness's examination. Then the witness would want to take notes about my questions about her notes, and I'd want to see those notes, and you can see how it can get out of control. | The document may, but probably doesn't say what it is you are witnessing. For example, a person witnessing a statutory declaration in NSW attests: their qualification to be a witness (JP, solicitor etc.) that they actually saw the declarant sign it that they asked the declarant if they believed their declaration was true that they have known the declarant for more than 12 months OR the declarant provided a photo ID and either their face matched the photo or they had a valid reason for not showing their face. If it doesn't say then what you are witnessing is that the signature was made by a person whom you could identify if necessary (e.g. if the person denied the signature). | The old saying: Being your own lawyer means you have a fool as the lawyer and a fool as the client. If one fool calls the other fool as a witness, that's even more foolish. And the worst crime is annoying the judge with your antics. Opposing council will just take note of every question you ask and your replies, and then call you as witness themself. And assuming they are a proper lawyer, everything they ask will be hurting you. No need to accuse you as "leading" or "badgering" the witness. | One wouldn't be able to make a claim about a driving record without it being testimony. Testimony will be challenged during cross examination. The prosecutor won't be able to bring up prior bad acts (such as previous speeding tickets) but will most certainly be allowed to rebut any claim of no prior bad acts made by a defendant. When the defendant claims a spotless driving record the defendant is introducing character or a character trait into the trial. Once introduced by the defendant the prosecutor will be allowed to challenge the credibility of that statement and, therefore, the credibility of the witness. Imagine the following interaction: Defendant: I have a spotless driving record. Prosecutor: Are you saying you've never been issued a traffic ticket? Defendant: Um, Uh, well... When a defendant goes to court they are facing a specific charge. The prosecutor will present evidence that supports that charge and it is up to the defendant and his attorneys to sow reasonable doubt within the jury, or at least one juror. By presenting character, the defendant may appear to be saying either, "Hey, it was my first time let me off," or, "I've never done it before so I couldn't have done it this time." Either way, it probably won't create reasonable doubt in the juror's mind about the specific charge they're weighing and it has the potential to open a can of worms that would be unfavorable to the defendant. | Depositions must always be attended by a court reporter in every jurisdiction I have ever encountered (including Colorado, New York, California, Wyoming and Florida). Alaska may be an exception. Its state constitution creates a right to participate in many kinds of legal and legislative proceedings remotely because the distances involved are often so great. The court reporter administers an oath to the witness, keeps track of exhibits, impartially records what happens (usually stenographically and with an audiotape) and then reduces it to a transcript later, a process assisted by having been there when the testimony was given (and allowing for the court reporter, for example, to request spellings of words during breaks). A videotape can be used in addition to the court reporter and sometimes this is done when it would be helpful for understanding a highly visual topic (e.g. in a patent case where someone is explaining a 3D object) or when a witness is expected to behave badly or is known for problematic voice character or body language. Court proceedings in a courtroom are often audiotaped with a judge present but without a live court reporter present. Appellate court arguments are frequently live streamed over the Internet. There may be some jurisdictions where it is possible to have an oath administered by a notary and simply audiotape or videotape the deposition, but that would be very rare in every jurisdiction of which I am aware. | In the event that a lawyer stops representing the client, and the client openly has told the lawyer that they have committed a crime, would it be legal for the lawyer to testify against them? Generally, no. The attorney-client privilege survives the termination of the attorney-client relationship. So, the lawyer cannot testify against the client. There are exceptions to the general rule. The two most important ones are as follows: There is a crime-fraud exception to the attorney-client privilege that applies when someone uses an attorney's services for the purposes of carrying out a crime and the attorney is a knowing or unwitting co-conspirator. For example, if the crime the client confesses to is to defrauding investors in a securities prospectus that the client has the lawyer draft for the client containing false information about the company and then tells the lawyer after it has been sent to investors who put lots of money into the company that the statements the client told the lawyer to put in the prospectus were intentional lies made for the purpose of defrauding the investors. An attorney is entitled to testify if the client effectively waives the privilege in the context of disputed issues between an attorney and a client such as a malpractice lawsuit or an ethics complaint lodged against a lawyer where the lawyer's testimony concerning the privileged communications is necessary to defend the lawyer. For example, if the client sues the attorney for malpractice for refusing to present a key witness at trial causing the client to lose the case, the attorney can defend himself or herself by stating that the attorney knew that the witnesses testimony would have been false because the client told him "X". | How much would I be expected to reveal if not directly connected to the case? For example, if I was asked, "What were you doing in the alley at night?," would you be required to reveal the information if it is potentially humiliating (e.g. you were having an affair) or illegal (e.g. you were getting illegal drugs)? The latter case seems to violate the protection against self-incrimination. Or what happens if you just lie about something inconsequential? You have to answer any permissible questions (i.e. consistent with the rules of evidence) asked. If you were doing something illegal you can claim the fifth and not testify unless you are given "transaction immunity" that your testimony will not be used against you in a criminal case against you. Usually perjury prosecutions require that the lie be about a material fact. Suppose you receive a death threat (either verbal or in writing) from the person charged with and who committed the crime. Something along the lines of: if you testify against me, then my friends will kill you after the trial. What legal options do you have? Tell the prosecutor on the case and ask the prosecutor to provide protection to you and to go after the people making the threat. The witness protection program was created for these cases. | It doesn't really matter exactly what the judge says as long as it's clear whether the judge is sustaining or overruling the objection. With that said, in movies you'll rarely see the person asking the question get to respond to the objection, but you'll notice in the trial that happens in most cases. For example, if one party objects that a question calls for hearsay, the examiner may defend their question by pointing out that the statement is not offered for the truth of the matter asserted, or that it falls into one of the hearsay exceptions. At that point the judge is responding to both parties and someone else or possibly multiple people have spoken since the objection was originally raised, so she might specify that she's "overruling the objection" as opposed to just saying overruled, so it just makes it clearer on the record what she's ruling about. It's worth noting as well that she might need to specify which objection she's sustaining if more than one objection is raised. In this trial both hearsay and relevance objections have been raised at the same time, and the judge might specify that she's sustaining e.g. only relevance. This can tell the examiner whether they are free to keep going down the same line of questioning with different questions, if the objection sustained was hearsay, or to move to another line of questioning, if the objection sustained was relevance. |
Can a police officer lie about a consequence of a traffic violation they charge you with? I was pulled over for allegedly speeding less than 15 mph over the posted speed limit. As I was traveling on a minor highway a car coming from the opposite direction turned off the highway and just as I passed the turn a highway patrolman was revealed directly behind the person turning off the highway. He immediately made a u-turn across a solid double yellow line and began following me with his lights on. Upon pulling me over the police officer immediately had an aggressive body language, manner of speech and eye contact. I had a 7 month old infant in the car and my wife, and I became nervous that he would further lose control of his emotions. He asked if I knew what speed I was going at the time that I was pulled over I said I couldn't recall what my exact speed was at the time he pulled me over. He then repeatedly asked said "well that means you were either purposely driving over the speed limit or you were carelessly driving". Not wanting to incriminate myself I kept repeating that I was not doing either of those things. He then said "there are three options, I can take you to jail, write you a citation or give you a warning". At that point I knew this was getting serious as I had never been threatened with jail time for a traffic offense before. I kept repeating that I did not intentionally drive over the speed limit and couldn't recall the exact speed I was going at the time he pulled me over. Honestly, I've replayed the situation countless times since it happened. I felt powerless to protect my wife and child from someone. I have two goals after this situation: Get out of the ticket. Prevent this individual from harming other people (which I believe the only reason he didn't escalate the situation to violence is because of my calm and respectful demeanor during the entire situation) I've been advised my best course of action is to plead guilty and ask for a reduction from the judge. I honestly fear for the safety of others that this officer pulls over. I'm trying to get over my personal anger towards this officer but I also feel some level of duty to ensure this doesn't happen to someone else. | Despite the lengthy background, the only question seems to be: Can a police officer lie about a consequence of a traffic violation they charge you with? As a matter of constitutional law in the United States, that answer is generally "yes." States can impose more limitations if they like. Only a small minority of states actually do so. Incidentally, an attorney, such as a deputy district attorney, is not allowed to lie about the consequences of a traffic violation, or anything else (even in extreme circumstances like a hostage situation). This violates the rules of professional conduct applicable to all attorneys. This sounds like a classic "driving while black" situation and is probably involves unconstitutional discrimination by a government official, although proving that in an individual case is virtually impossible. | Texas and California are actually what are called Presumed Speeding states, unlike most others which are Absolute Speeding states. (There is a little known third category called Basic, but this is uncommon). In a presumed speeding state, a speed-limit violation offers someone in your shoes far more flexibility in building your defense than the more common absolute state. In states that use this presumed system, such as California and Texas, it is not illegal to drive over the posted limit as long as you are driving safely and this can be established. For example, if you are driving 50 mph in a 40-mph zone, you are "presumed" to be speeding, yes. However, despite this prima facie evidence (meaning "on its face") of speed in excess of the posted limit, if you can show you were driving safely you may be able to mount a pretty decent defense. Just because you got a ticket is not prima facie evidence beyond a reasonable doubt that you were speeding. You are presumed innocent. If they prove you were speeding this is all they need to make their case, unless you rebut it. But there is a lot of room to rebut this presumption – and that is if they prove it. They must (as with all criminal cases) prove you did what you are accused of beyond a reasonable doubt – the highest standard of proof in the U.S. So, if everyone was going 80 MPH in a 70MPH zone, you would argue that the road was (I'm assuming) dry, unmarred, you were traveling in heavy enough traffic that to slow your speed to the posted limit would actually be less safe than traveling with the flow of traffic. You can talk about the state of your vehicle (repair, handling, etc.), how you stayed in one lane, and you can describe your skill at driving – especially if you have no other tickets and you have been driving for a long time. If you were weaving in and out of traffic, riding someone's bumper, if it was pouring rain, the road was bumpy or under construction, or if you admitted speeding (if you did this you can still rebut with a showing of safe driving, but ignore all info regarding challenging radar or other means of determining speed), or if any other evidence exists that the officer would testify to that shows you were not driving safely, this will not be successful. A successful example of a speeding defense in Texas: on a clear, dry morning with no other cars on a wide, straight road, a man is pulled over for being clocked going 50 mph in a 40 MPH zone. He had a perfect record and had been driving 22 years. He was driving a 2-year-old car. He convinced a judge that this was driving safely given those conditions and was acquitted. That's because facts presented were sufficient to "rebut the presumption" that by going over the posted limit he was driving at an unsafe speed. NOTE: Never bring up your driving record unless it is spotless. Unless you are a habitual offender it cannot be used against you or be brought into evidence at all, unless you open the door. You can also mount a defense based on the radar detection device, if one was used. You can seek records as to when the calibration fork was last checked, when the last time it was professionally calibrated (rather than self calibrated). You can ask, in a leading way (only if you know) how close the car behind and in front of you were (you don't want to be too close to the car in front of you, however if the cars were tightly grouped it is more likely the radar detector could have read another vehicle): e.g., "Isn't it true that the car behind me was only 1.5 car lengths behind me?" Only do this if you know, but if you can get the officer to admit that the car behind you was close, that can be used to rebut the radar detection and goes to the argument that driving slower would have been dangerous and you were driving safely with the flow of traffic. You should be prepared to put on an entire trial if you fight the ticket. In Texas, I believe speeding is considered a Class C criminal offense (rather than a civil offense as in most absolute states); hence, they have to build the prima facie case against you and prove it beyond reasonable doubt. If you can afford one, get a good traffic violation attorney. Always choose a jury in this type of case. Everyone speeds a little and you are far more likely to be acquitted by a jury than a judge. You should also ask to have the case assigned to the county seat; request this in writing ASAP. If you are trying the case, be prepared to go after the officer. Note any distinguishing marks on your car (if any), recall what you wore, what time of day, the lighting, all that. Even go back to the scene at the same day and time and take video showing the flow of traffic, (hopefully) the straightness of the road, etc. Cross-examine him on all facts with confidence and in a leading manner. Always ask for the calibration reports and you will get all evidence against you in discovery. This thing about 10mph being the minimum they can give a ticket for: ignore that, it's rubbish! It's meant to get you to admit to him that "you were only going 8 or 9 over." Also, that whole percentile argument is not relevant and will not work at all. You must show that you were driving safely given all the facts and circumstances to rebut the presumption that you were driving unsafely by speeding. It is worth fighting as you will also incur surcharges, increased insurance rates, and points on your license that are cumulative and stay for 3 years – a certain amount of which gets you suspended if you get (or have) more violations. | As I understand, the limited liability that police enjoy, requires that people bringing civil cases against police must prove that the police person should have had a reasonable knowledge of the civil rights that you accuse him of breaking, for the civil case to be successful. This isn't quite right. The test you are referencing is the one for qualified immunity from civil liability under 42 U.S.C. § 1983, which imposes liability on government officials only for violating a "well-established" constitutional right. A rule of law is "well-established" when there is controlling case law in that jurisdiction when a factually similar binding precedent exists in that jurisdiction to show that the alleged conduct is unconstitutional. This test is employing the legal fiction that police officers are familiar with all of the binding precedents in the jurisdiction regarding what constitutes a violation of a constitutional right, which is held against officers. Of course, in reality, almost no police officers have that exhaustive a level of understanding of the law. What the test does, however, is to prevent police officers from being held civilly liable for money damages when they take action which, in fact, violates a constitutional right, but which no case law in a factually similar case that was binding precedent established before the incident took place. Thus, police officers are relieved of liability for incidents that they would have to predict that a future court would find violated a constitutional right. This is sometimes phrased as being justified because a reasonable police officer could not have foreseen a new rule of constitutional law or a novel application of an existing rule of constitutional law to a new situation. One of the reasons that the qualified immunity rule is controversial, however, is that courts have the discretion to decide a case on qualified immunity grounds without determining if the underlying action indeed did violate a constitutional right, and this prevents constitutional law from evolving normally over time to applications in new factually novel situations. The key point, however, is that this requirement that a constitutional right be well-established to be enforceable in a civil action is an "objective" test in that it is decided without any reference to what the particular individual being sued actually knew about the law in the particular circumstances presented. A police officer who acts without actually knowing the law does so at his or her peril. | I live in MD near DC, and have been ticketed by the cameras in both DC and MD. At least for speeding and red-light violations (and I think for all camera detected violations) these are just fines, not true moving violations in that no license points are assessed, and there is no impact on insurance, provided the ticket is paid, unlike what would have happened had an officer written the ticket in person. One can contest the ticket, but it is not likely to be worth the time and trouble. This policy of not assessing points is precisely because there is no assured way of determining who the driver is with current technology, although cameras that can see the driver through the windshield and match him or her against a database by facial recognition may be coming. Currently a human reviews the images in an effort to rule out false positives and certify that an actual violation is shown. The name and title of this person is shown on the notice I get, at least from MD. What one can do "proactively": do not speed or go through red lights pay all camera tickets promptly (or file the paperwork to contest them). If unpaid beyond the deadline they turn into more serious violations that do carry points, just like failing to attend a court date. | In my opinion, the news report is mischaracterizing the situation, either because the person who provided the information was confused or sloppy, or because the reporter was confused (it is impossible to tell on its face). Probable cause to arrest can, and often does, arise from an oral statement of a witness to a police officer, even if a witness refuses to back their oral statement to a police officer with a written one. And, in the narrow and strict sense, a complaint is a court document, usually signed by a prosecutor, commencing criminal legal proceedings against a criminal defendant (in lieu of an indictment, or pending the issuance of an indictment). A complaint in this narrow and strict sense would not usually be signed by an ordinary citizen witness to a crime. Sometimes, however, the word "complaint" is used in a broader, non-technical sense to refer either to any report made to police complaining about misconduct by someone, or in a different technical sense to refer to a written and signed report made by a witness to the police. It is likely that what really happened is that after receiving an oral report that the individual had threatened people, none of the witnesses who provided this oral report was willing to sign a document summarizing their oral report of being threatened for the police (perhaps out of fear of retaliation by the accused person, or out of a desire not to harm the accused person's long term future prospects). Then, the police department, as a matter of department policy (rather than any requirement imposed by law), declined to pursue a criminal case based upon the threats, when no one was willing to publicly and in writing commit to their oral reports, because they would need a testifying witness in a later court case. | The police performed an "open air sniff". Federal and Pennsylvania law differ on this. Under Federal law, this is not considered a search and can be done on any vehicle- usually to get cause for a more invasive search. (Illinois v. Caballes, 543 U. S. 405 (2005).) Under Pennsylvania law, an open air sniff requires reasonable suspicion. This is lower than probable cause- all it requires is that a reasonable person could suspect from the facts that a crime may have or could be committed. Being overly nervous during a routine traffic stop driving someone else's car could potentially be considered reasonable suspicion- as I only have your second-hand account, I won't speculate further. If there was no reasonable suspicion, any evidence found by that search, or evidence found by a search justified by it would be suppressed. Fourth Ammendment rights also apply here. The police cannot detain someone solely for the purpose of waiting for a sniffer dog. They have ways and techniques to waste time for this purpose, but if the stop was concluded before the dog arrived, your husband would be free to leave. Again, I have only your second-hand account so I won't speculate on whether this happened. He should speak to his lawyer about specifics of the case. | No If the police want to arrest you your legal obligation is to submit and, if the arrest was a violation of your rights, pursue a legal remedy afterwards. You do not have a right to resist an arrest even if that arrest is without legal basis. "Resisting arrest" is a specific crime with a specific definition. For example, in new-south-wales it is in s546c of the Crimes Act 1900 and it says: Any person who resists or hinders or incites any person to assault, resist or hinder a police officer in the execution of his or her duty shall be liable on conviction before the Local Court to imprisonment for 12 months or to a fine of 10 penalty units, or both. If you are charged with resisting arrest the state needs to prove each element of that crime beyond a reasonable doubt. If they can't do that the charge will be dismissed. If they can prove it then you may have a defence to resisting arrest if: you did not know that the person was a police officer or you did not know that you were being arrested if the police officer was not acting lawfully. However, a police officer will be acting lawfully even if the arrest is subsequently found to be unlawful provided they are acting in good faith and without malice. Suspecting you of committing a crime even if you didn’t makes it lawful to arrest you. | There are several elements working in your friend's favor. The first is "guilty beyond a reasonable doubt." In an entrapment case, the police have recordings or documents claiming that the "girl" was underaged. If there is no such smoking gun from the (real) girl, the case (probably) would not be prosecuted in the U.S. He doesn't have to prove that she told him she was 18; "she" (or the police) has to prove that she told him she was "not." The second factor is "remoteness" in time, and distance. Two years after a U.S. state sent me a "nasty letter," I asked my lawyer if the state would ever come after me. He answered, "If they were going to do this, you would have heard further by now." The other factor, distance and cross border, (three countries: Turkey, the U.S., his home country) further militates against prosecution except for highly aggravating circumstances such as drug dealing, gambling, or sex for pay. A third factor is that your friend would not come close to qualifying as a "serious offender." This would be someone like a drug dealer, or the head of a "call girl" ring. The cops concentrate their effects on big "busts" like this that make their careers, not "small fry" like your friend. But of course they use the publicity from the big catches to scare everyone else. While there is no "guarantee" against "the worst possible consequences," the chances of them happening are similar to his getting hit by lightening, and less than his chances of being hit by a car crossing the street. No one stresses out about those chances. He shouldn't either. I am not a lawyer but I have done paralegal work in a law office. |
In the United States, what decides whether a case should go to the state courts or the federal courts? The United States has a dual judiciary system with a state court system and a federal court system with the US Supreme court. If there is a person who is accused of breaking both state and federal laws because of an action(in this case, both state and federal laws agree with each other on the action being a breach of law) and they wish to take the matter to court, how do they decide which system to take it to? | State crimes must be prosecuted by state prosecutors in state courts. Federal crimes must be prosecuted by federal prosecutors in federal courts. hszmv's answer describes the DOJ's policy where there is overlap. In Indian country (this is a term of art in U.S. law), jurisdiction is much more complicated. In brief, there is often exclusive tribal jurisdiction when the alleged offence has an Indian accused and Indian victim. For a listed set of major crimes, jurisdiction is exclusively federal (except in states where that jurisdiction has been granted to the states), even if incorporating as federal law the state's definitions of particular crimes. | No The case was dismissed on procedural reasons. Like this. Well, perhaps not so pedantic but there are things that have to happen before the Supreme Court can get involved and they haven’t. For example, the Supreme Court only has original jurisdiction in a limited classes of case; if this isn’t one of those (and it isn’t) it has to be heard in a court that does and then get appealed up the chain. When they have, the court will make a decision on the merits. | Federal countries usually define the separation (and sometimes sharing) of legislative competencies in their constitutions. There will also usually be a "default" case for if the competency is not explicitly defined in the constitution. For example, in the United States, the default is to give legislative power to the individual states via the Tenth Amendment. If criminal law is left to the sub-national entities, then the nation can usually still enact a penal code with respect to its competencies (again, the U.S. is a good example). So, I decided to make this a mini-research project by checking the countries Wikipedia lists as federations. I wasn't able to find an explicit statement as to whether there were competing penal codes in most cases, but was able to find in which level of government the constitution placed criminal law. In some cases where there are "competing" penal codes, the constitution specified which level has supremacy, making for less "competition". Without further ado, here's what I've been able to find. Links are either to an appropriate Wikipedia page, or the part of the applicable constitution dividing the legislative competencies. Take these with a grain of salt. Competing penal codes Australia Bosnia and Herzegovina Ethiopia India Iraq Mexico Nigeria Pakistan Sudan United States Single national penal code Austria Brazil Canada Comoros Germany Malaysia Nepal Russia Switzerland Venezuela Unclear Argentina Belgium Micronesia St. Kitts and Nevis Somalia South Sudan United Arab Emirates | “Like the Federal Rules of Criminal Procedure, the Federal Rules of Civil Procedure are as binding as any statute duly enacted by Congress, and federal courts have no more discretion to disregard the Rules' mandate than they do to disregard constitutional or statutory provisions." Chambers v. Nasco, Inc., 501 U.S. 32, 66 (1991). The civil and criminal rules of procedure are established by the U.S. Supreme Court, which promulgates them under authority delegated by Congress in 28 U.S.C. 2072. Some rules provide the courts more flexibility in their application than others, but the courts may not simply ignore them any more than they could ignore a Supreme Court precedent. For instance, in a case where the trial court dismissed criminal charges based on prosecutorial misconduct, the government appealed, arguing that the misconduct hadn't prejudiced the defendant, and Criminal Rule 52's "harmless error" rule requires the court to essentially ignore errors that don't effect the defendant's "substantial rights." The defendant argued that the court's supervisory authority permitted it to dismiss the case to deter future misconduct. The Supreme Court reversed the dismissal, agreeing with the prosecution that a court has no authority to dismiss the case based on error that the rules of procedure order it to ignore: Rule 52 is, in every pertinent respect, as binding as any federal statute. "Courts have no more discretion to disregard the Rule's mandate through the exercise of supervisory power than they do to disregard constitutional or statutory provisions through the exercise of such power." Bank of Nova Scotia v. United States, 487 U.S. 250, 250 (1988). Other courts have concluded that this standard applies to the Federal Rules of Civil Procedure, as well. See, e.g., Stone Container Corp. v. United States, 229 F.3d 1345, 1354 (Fed. Cir. 2000) ("[T]he Federal Rules of Civil Procedure, like the Federal Rules of Criminal procedure, are “as binding as any federal statute.”); S.E.C. v. Selden, 484 F. Supp. 2d 105, 107 (D.D.C. 2007); Sieb's Hatcheries, Inc. v. Lindley, 13 F.R.D. 113, 119 (W.D. Ark. 1952); Westland Oil Co. v. Firestone Tire & Rubber Co., 3 F.R.D. 55, 56 (D.N.D. 1943). tl;dr: The Rules are rules of procedure. They must be adhered to. | Is A or B subject to Canadian employment law? Canada and the relevant province(s) will decide in their courts if Canadian or US law applies. The USA and the relevant state(s) will decide in their courts if Canadian or US law applies. It would be open to the employee to bring an action in any relevant court; the court will then decide what law applies and if they have jurisdiction - that is part of what sovereignty means! A Canadian court can decide a matter using US law and vice-versa. Things that the court would take into consideration are if the company did business (outside this single arrangement) in Canada or was US exclusive, the number of other trans-national interns, if the arrangement was seen as a device for avoiding employment obligations in either jurisdiction. If one is subject to Canadian law then they both are. Will either party get into trouble with the Canadian government? Assuming that the arrangement is subject to Canadian law then the company would be obliged to pay wages and may be subject to fines for not having done so. If so, what enforcement (and/or punishment) mechanisms does the Canadian government have at their disposal to enforce their employment laws against A or B? B - nothing; they have not broken the law. A - an order to pay wages and fines. Enforcement may require a judgement in a US court; either by bringing the case in one the first instance or applying to have a Canadian judgement given effect in the US. Edit The OP has added the proviso that the document states that it subject to US law and jurisdiction. If it just says that, it is prima facie invalid - a contract cannot exclude the jurisdiction of any court and an attempt to do so renders it unlawful. However, if it said that it was subject to the non-exclusive jurisdiction and law of, say, Wisconsin, then a Canadian court would consider the parties intent and the relevant Canadian national and provincial law and might decide that the proper forum is a Wisconsin court and refuse to hear the complaint. Things they will consider are that there will be Canadian and provincial laws that cannot be excluded by contract, the hardship changing the forum will have on the plaintiff or defendant, if the result (assuming the facts are proven) would be demonstrably different in a US vs. a Canadian court etc. | State legislation can be invalid due to inconsistency with either the U.S. Constitution or the state's constitution. State legislation can also be inoperative due to pre-emption by conflicting and valid federal law. | No. A plaintiff may travel to the defendant's jurisdiction to file suit if desired. Nobody usually does this, though, due to travel and logistical considerations. The defendant is the one who decides whether to challenge jurisdiction. Good contacts will include a forum selection clause which would lay out what happens where in the event of a dispute. And this can be anywhere, it is not limited to the locations of the plaintiff and the defendant. N/A. | There isn't to the best of my knowledge, any single document that tells courts to follow precedant or when and how to do so. Each State, and the Federal government, has a set of court rules of procedure. These will indicate, among many other things, the form that should be used in citing previous cases, but that is about form, not content -- about how to cite a case, not about when a court should or should not cite one. Some precedents are what are called persuasive. These are from other court systems: say a different state, or even another country. These also include rulings from other courts at the same level, say from a different district, or even from lower courts. Other precedents are binding. These are from a superior court to the one where the case is cited. In a state's lower court, rulings of that state's supream court are binding. In Federal district courts, rulings of the Court of Appeals for the same Circuit, and of the US Supreme Court are binding. In Federal appeals courts, rulings of the US Supreme Court are binding. They are also binding in state courts on matters where the US constitution is involved, or where Federal law supersedes state law. Prior rulings of the same court are strongly persuasive, but not strictly binding -- a court can overrule its own precedents when it thinks the law or justice requires this, although most courts are reluctant to do so. Or more often it can distinguish a previous ruling, saying, in effect: "that previous ruling is still valid, but this is a different case in such and such a specific way, so the result is different". Students in law school spend a good deal of time learning how precedents are cited, and how they should be used, learning what sorts of things are controlled by precedents, and how to find the precedents that apply to a particular case. When they become lawyers and then judges, they taken this body of learning with them, and use it in writing decisions, and opinions that explain those decisions. New law from the legislature can reverse previous court decisions, except in the case of decisions interpreting the constitution (federal or state). Amendments can change the constitution. Judges must adapt to such changes in the law. To a significant extent our system of precedent is a matter of tradition, going back largely to the common-law courts of England, although it has been modified by specific legislation in many ways, as well as by more recent court decision and practice. It is passed on in law schools, in legal apprenticeships of various kinds, and in individual court decisions. |
Personal Misconduct That May Result in a Lawyer's Censure or Disbarment Is there some type of Code of (Personal) Conduct that lawyers in the United States must abide by under the penalty of either censure of disbarment? What personal kinds of personal misconduct might result in such penalties? I am especially interested in rules of personal conduct for members of the Texas bar. I have found lots of documentation regarding code(s) of professional ethics but not for personal ethics and behavior. | The Texas Disciplinary Rules of Professional Conduct govern the issue of the grounds upon which lawyers admitted to practice in Texas may receive professional discipline such as censures, suspension from practice, or disbarment. The appropriate severity of professional discipline for particular kinds of conduct is largely a matter of case law and separate law provides for the procedural framework for administering the Rules of Professional Conduct. The Rules themselves specifically disavow the task of decided what kind if professional discipline is appropriate for any particular kind of conduct of an attorney. Personal ethics and behavior are governed primarily by rules 8.02 (defamatory speech about judges and other legal officials), and 8.04 (various kinds of misconduct including personal misconduct), although there are some stray bits that can come up in connection with other rules. Rule 1.08 involves improper conduct in transactions with clients that do not pertain to the matter in which the client is represented (e.g. unfair business deals with clients). Texas is among a minority of states that does not automatically treat having sex with client that commences only after the attorney-client relationship is formed as a violation of the Rules of Professional Conduct. Rule 8.04 is sometimes called the "officer and a gentleman" clause of attorney professional ethics after an analogous provision, Article 113, of the Uniform Code of Military Justice that applies to members of the United States armed forces. It is a residual misconduct provision that covers lots of misconduct in a lawyer's personal affairs that isn't otherwise regulated by the Rules of Professional Conduct. Rule 8,04 and its official comments are as follows: Rule 8.04. Misconduct (a) A lawyer shall not: (1) violate these rules, knowingly assist or induce another to do so, or do so through the acts of another, whether or not the violation occurred in the course of a client-lawyer relationship; (2) commit a serious crime or commit any other criminal act that reflects adversely on the lawyers honesty, trustworthiness or fitness as a lawyer in other respects; (3) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (4) engage in conduct constituting obstruction of justice; (5) state or imply an ability to influence improperly a government agency or official; (6) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; (7) violate any disciplinary or disability order or judgment; (8) fail to timely furnish to the Chief Disciplinary Counsels office or a district grievance committee a response or other information as required by the Texas Rules of Disciplinary Procedure, unless he or she in good faith timely asserts a privilege or other legal ground for failure to do so; (9) engage in conduct that constitutes barratry as defined by the law of this state; (10) fail to comply with section 13.01 of the Texas Rules of Disciplinary Procedure relating to notification of an attorneys cessation of practice; (11) engage in the practice of law when the lawyer is on inactive status, except as permitted by section 81.053 of the Government Code and Article XIII of the State Bar Rules, or when the lawyers right to practice has been suspended or terminated, including, but not limited to, situations where a lawyer’s right to practice has been administratively suspended for failure to timely pay required fees or assessments or for failure to comply with Article XII of the State Bar Rules relating to Mandatory Continuing Legal Education; or (12) violate any other laws of this state relating to the professional conduct of lawyers and to the practice of law. (b) As used in subsection (a)(2) of this Rule, “serious crime” means barratry; any felony involving moral turpitude; any misdemeanor involving theft, embezzlement, or fraudulent or reckless misappropriation of money or other property; or any attempt, conspiracy, or solicitation of another to commit any of the foregoing crimes. Comment: There are four principal sources of professional obligations for lawyers in Texas: these rules, the State Bar Act, the State Bar Rules, and the Texas Rules of Disciplinary Procedure (TRDP). All lawyers are presumed to know the requirements of these sources. Rule 8.04(a)(1) provides a partial list of conduct that will subject a lawyer to discipline. Many kinds of illegal conduct reflect adversely on fitness to practice law. However, some kinds of offenses carry no such implication. Traditionally in this state, the distinction has been drawn in terms of those crimes subjecting a lawyer to compulsory discipline, criminal acts relevant to a lawyer’s fitness for the practice of law, and other offenses. Crimes subject to compulsory discipline are governed by TRDP, Part VIII. In addition, although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for criminal acts that indicate a lack of those characteristics relevant to the lawyer’s fitness for the practice of law. A pattern of repeated criminal acts, even ones of minor significance when considered separately, can indicate indifference to legal obligations that legitimately could call a lawyer’s overall fitness to practice into question. See TRDP, Part VIII; Rule 8.04(a)(2). A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief, openly asserted, that no valid obligation exists. The provisions of Rule 1.02(c) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges to legal regulation of the practice of law. Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer’s abuse of public office can suggest an inability to fulfill the professional role of attorney. The same is true of abuse of positions of private trust. With respect to the portion of the question asking: What personal kinds of personal misconduct might result in such penalties? Some of the most serious violations of the rules that are likely to lead to disbarment include misappropriation of client property, abandonment of a legal practice with active clients, revealing highly prejudicial client confidences with no color of justification for doing so, committing a crime involving fraud or a felony, or failure to cooperate with a disciplinary investigation. Of those, committing of a crime involving fraud or a felony would be the one most likely to result in disbarment that involves personal conduct, as opposed to professional conduct. Other kinds of personal conduct might result in a lesser sanction, however, as noted in Rule 8.4. Of course, it isn't all that hard to imagine some circumstance "involving dishonesty, fraud, deceit or misrepresentation" (think "George Santos" absent any criminal conduct) that isn't strictly speaking a crime, or "conduct constituting obstruction of justice" in a matter unrelated to client matters (e.g. obstructing an investigation of a family member of the lawyer in connection with an academic institution's investigation) that could rise to this level as well. But, again, the matching of punishment to particular conduct is rooted in case law. Also, a pattern of various kinds of misconduct or repeat offenses are often treatment more seriously than a single instance of misconduct by a first offender would be in isolation. Incidentally, every U.S. jurisdiction has a set of Rules of Professional Conduct with the same numbering system, although the substantive content of different states' rules with the same number is not always the same. So, for example, Rule 8.4 covers the same subject-matter in every U.S. state, the District of Columbia, Puerto Rico, and every other U.S. territory, even though there may be important substantive differences between the versions of Rule 8.4 adopted in different states. | Will he break any laws by saying that (assuming the actual truth cannot be found out)? The statement made outside the courtroom is not itself perjury, since it is not made under oath. But that doesn't mean that there wouldn't be legal consequences. It would be powerful evidence in a perjury prosecution (surely enough for a conviction even standing alone long after the trial is over but within the statute of limitations for perjury in the jurisdiction from the date of the sworn statement, if any), and would be a waiver of 5th Amendment rights against self-incrimination, generally, in the perjury case. It might also be strong evidence (enough to convict standing alone) in a timely obstruction of justice prosecution. This statute of limitations could also run from the date of the sworn statement, or from the date of a false unsworn statement that caused a conviction to be reopened. If the statement made in court was favorable to the prosecution, it might bring these charges after the conviction in the underlying case is final. But, the out of court statement would probably be grounds for the party benefitting from the original statement to seek a mistrial or to have a judgment set aside if the verdict or judgment is consistent with the sworn statement. If the out of court statement was made before the trial was over, the witness could be recalled and the out of court statement could be used to impeach the in court statement. It might constitute a probation or parole violation. If the witness were testifying pursuant to a cooperation agreement, the out of court statement would probably breach the deal and deny the witness the benefit of the cooperation deal. The out of court statement might constitute contempt of court if made while the proceeding in which the statement was made was still pending. Depending on the nature of the statement, the out of court statement might constitute defamation for which some one whose reputation was tarnished might sue for money damages. (There is immunity from civil liability for in court statements.) It would violate the ethical rules of many professions. For example, an attorney would probably be disbarred for doing that. Arguably, in this situation, the statute of limitations could run from the later unsworn statement date rather than the date of the sworn statement. If the witness is a state or federal government employee, this could lead to impeachment proceedings, in the state legislature, or Congress, respectively. The aftermath of the Lewinsky Scandal (link below) involving Bill Clinton touches on many of these possibilities: Further investigation led to charges of perjury and to the impeachment of President Clinton in 1998 by the U.S. House of Representatives. He was subsequently acquitted on all impeachment charges of perjury and obstruction of justice in a 21-day Senate trial. Clinton was held in civil contempt of court by Judge Susan Webber Wright for giving misleading testimony in the Paula Jones case regarding Lewinsky and was also fined $90,000 by Wright. His license to practice law was suspended in Arkansas for five years; shortly thereafter, he was disbarred from presenting cases in front of the United States Supreme Court. Easier and Harder Cases The easier cases are those where it is undeniably clear from other evidence that the witness lied under oath, and the out of court statement merely puts the cherry on top of an already solid perjury case. The hard cases aren't the cases where "the actual truth cannot be found out". Instead, the hard cases are the cases where there is strong evidence that the statement made in court, under oath was true. For example, suppose Ted Cruz is asked in court: "Were you the Zodiac killer?" (A crime ridiculously attributed to him despite the fact that it is something that happened when he was a small child who live many hundreds of miles away.) And he says, "No" in court, but then leaves the courtroom and says in a press conference on the court house steps: "I am the Zodiac killer, I lied about that under oath in court today." Similarly, suppose that a DNA test on a certain blue dress shows a perfect match to President Bill Clinton and Bill Clinton says under oath in court, that the substance tested came from him on a certain day, in a certain place, when a certain person was wearing it, in a certain way (also confirmed by a witness and surveillance video). Then, he leaves the courtroom and says in a press conference on the court house steps: "Someone else was the source of that genetic material. I never met that person, and I was in Kenya on the day alleged and I've never set foot in the White House. I lied about all of this under oath in court today." In these cases, there is no plausible way to make an obstruction of justice or perjury charge stick, or to upset a verdict or judgment consistent with the truthful sworn statement. Contempt of court is still possible, as would professional ethics violations, but other consequences would be less obvious, because the act would come across more as absurd instead of something that genuinely confounds the truth. The legal consequences associated with the conduct in the original post are mostly aimed at sanctioning genuinely fraudulent conduct. Our legal system is more confused about how to respond to lies so blatant that they only amount to feeble and ineffectual gaslighting that no reasonable person familiar with the circumstances would believe (but that might incite crazy conspiracy theory thinking supporters). The harder case would lie in the uncanny valley between a bad joke and a pathetically weak attempt to mislead people, even though the law is clear about how to deal with clear sarcasm and convincing attempts to lie that can't be clearly proven or disproven with other evidence. | A law has to be "broad" to include a lot of possible crimes and intent of criminals and account for the good faith of non-criminals. "Intentionally access without authorization/exceed" is actually fairly specific; "intent" is the keyword. Someone making a mistake may have intent to login, but no intent to commit a crime. Someone confused by "different pages of demo and live accounts" can easily defend their actions by pointing out that they were confused. It's up to the reasonableness of the pertinent law enforcement and prosecutors to take into account the evidence that reasonable mistakes were made by little old ladies and not charge them with a crime. And for the most part, 98% of the time, law enforcement and prosecutors are reasonable. | No Let's consider a similar scenario. If you made a beverage which poisoned a number of people, would you be absolved of liability because you gave it away for free? Of course not. As there is no contract between you, they would have to bring an action against you in the tort of negligence or negligent misstatement OR under consumer protection law. To succeed at tort they would need to prove that you owed them a duty of care; from Donoghue v Stevenson "You must take reasonable care to avoid acts or omissions which you can reasonable foresee would be likely to injure ... persons who are so closely and directly affected by my act that I ought reasonably have them in contemplation ...". Most cases will founder on your inability to foresee the use to which your software may be put. Consumer law is jurisdiction specific but they generally contain warranties that what you provide (gratis or otherwise) is fit for purpose, merchantable and that you do not make false and misleading statements. There is a chance that a case brought under this sort of law could succeed as you have not limited the purpose, specifically declared that it is not of merchantable quality and have (presumable) said what it does so that, if it doesn't do what you said, you have been misleading and deceptive. | That really sucks. I've had similar experiences when handling the probate proceedings of lawyers who were not good about returning original wills to clients. I am providing an answer under general principles without researching Oregon specific accounting, record retention and probate laws, to at least give you a start although I recognize that a better answer would research these questions. The accounts/clients from her business were sold to another woman. Is it legal for us to transfer everything to her possession? Probably yes. There should be a government agency in Oregon that regulates accountants that has rules regarding that question. The linked rule seems to govern this situation. It says in Rule 801-030-0015(d) that: (d) Custody and disposition of working papers. (A) A licensee may not sell, transfer or bequeath working papers described in this rule to anyone other than one or more surviving partners or stockholders, or new partners or stockholders of the licensee, or any combined or merged organization or successor in interest to the licensee, without the prior written consent of the client or the client’s personal representative or assignee. (B) A licensee is not prohibited from making a temporary transfer of working papers or other material necessary to the conduct of peer reviews or for the disclosure of information as provided by section (1)(b) of this rule. (C) A licensee shall implement reasonable procedures for the safe custody of working papers and shall retain working papers for a period sufficient to meet the needs of the licensee’s practice and to satisfy applicable professional standards and pertinent legal requirements for record retention. (D) A licensee shall retain working papers during the pendency of any Board investigation, disciplinary action, or other legal action involving the licensee. Licensees shall not dispose of such working papers until notified in writing by the Board of the closure of the investigation or until final disposition of the legal action or proceeding if no Board investigation is pending. So, a transfer to a successor firm appears to be permitted. What if she refuses to take the documents? Her probate estate could retain them and stay open, they could be returned to clients, or there could be a rule established by the Oregon body that regulates accountants that authorizes a central depository of such records. In Colorado, for example, in the case of law practices with no successors, original wills and estate planning documents can be deposited in the records of the court with probate jurisdiction that has jurisdiction over the territory where the decedent's practice was located. But, I could not locate any provision of this kind in Oregon law. Is it legal for us to destroy/shred/etc. the documents? In many cases, yes. Some states, by statute or regulation, and others by custom, allow business records to be destroyed as a matter of course, normally one year after the longest statute of limitations that could apply to a dispute where the records would be relevant (often seven years since the longest normally applicable tax statute of limitations is six years). Destroying tax returns is usually not a big concern because a transcript of the old tax returns can be ordered from the tax collection agency where they were filed. But, business records related to purchases of property and capital improvements and depreciation, and related to divorces, can be relevant for decades after they were created, so the more honorable course of action would be to make at least a cursory effort (such as a postcard sent to a last known address of each client with a deadline for requesting a return of their file) to return the files of clients that include original business records as opposed to mere copies of tax returns. Oregon has a seven year retention rule for most purposes pursuant to Rule 801-030-0015(e) which is linked above: (e) Retention of attest and audit working papers. (A) Licensees must maintain, for a period of at least seven years, the working papers for any attest or compilation services performed by the licensee together with any other supporting information, in sufficient detail to support the conclusions reached in such services. (B) The seven-year retention period described in paragraph (A) of this subsection is extended if a longer period is required for purposes of a Board investigation as provided in paragraph (d)(D) of this rule and OAR 801-010-0115(3). The referenced rule in that rule states: (3) Requirements upon resignation. Upon resignation, a former licensee is required to: (a) Surrender the CPA certificate or PA license to the Board; (b) Take all reasonable steps to avoid foreseeable harm to any client, including but not limited to providing written notice of resignation under this section to all clients and inform all clients of where client records and work papers will be stored and of the clients’ right to secure copies of all such records and work papers at no cost to the client; (c) Maintain client records for a period of at least six years, or return such records to the client; and (d) Continue to comply with the requirements of OAR Chapter 801 Division 030 pertaining to confidential information and client records. (e) For the purpose of subsection (b) above and unless otherwise required by the Board, a resigning licensee of a registered firm is required to give written notice to only those firm clients for which the resigning licensee was the sole or primary CPA on an engagement, an engagement leader, or the client relationship manager. In practice, the consequences of destroying a record that shouldn't have been destroyed are likely to be minimal, because any recovery would be limited to the assets of the estate and there is a time limit for making claims against estates which is quite strict, and your grandma has no license to revoke. But, again, the honorable thing to do in order to honor her legacy and do right by her former clients would be to either transfer the records to a successor firm or to attempt to return them, as she would be required to do if she had surrendered a license during life. | This depends on the nature of the "ban" ---i.e., who issued it, what legal power they have, and what it actually requires you to refrain from doing. You say it is "their ban" so I am going to assume that this is just a decision that the store has made not to allow you entry. If it is indeed the store itself that has "banned" you, this would not prevent you from calling them to apologise for whatever you did. Calling a business on the phone cannot generally be considered a trespass --- at most, if you were to repeatedly call and harass a business over and over again, it might give rise to a nuisance suit. Unless you have extremely strange laws in your jurisdiction, it is almost certainly not against the law for you to call a business that has banned you, a fortiori if this phone call is made for the purposes of apologising for whatever you did that led to the ban. Although it does not appear to be the situation in this case, if this ban was an actual restraining order of some kind issued by a Court, then it might indeed prevent you from contacting the business (in which case breaching it would lead to an action for contempt of court, not trespass). If a Court were to issue you with an injunction or restraining order of some kind to ban you from a business, then that instrument would specify what you are prevented from doing. You would then need to be very careful to comply with that order. In short: there is a great deal of difference between a "ban" made by a store as the owner of property, and a ban issued by a court through an injunction or restraining order. | What legal options do I have here? I don't think I can sue for defamation of character since the email was sent to me only. Your rationale about defamation is accurate with respect to the establishment (henceforth "company"). But you may sue the person(s) who approached the company to falsely accuse you of that crime. Being banned certainly qualifies as special damage (that is, concrete damage), whence you have a viable claim of defamation per quod. If the crime that was falsely imputed to you is a felony or serious crime, then you additionally have a viable claim of defamation per se. I was thinking that I may have some legal recourse since the email clearly threatens to defame my character if I re-enter the establishment You have legal remedies, although not necessarily from this angle. The company can credibly argue that it sought to discourage you from contravening the "safety measure" it adopted in response to the accusations made about you. If it turns out that the company fabricated any false accusations it divulges, though, then you could sue the company for torts related to --and in addition to-- its defamatory falsehoods. So far the information you share here shows no signs of company's involvement in inventing the false accusations. What legal options do I have here? You need to ask the company for source and details of the information. In line with this comment, you should also ensure the company is aware of the mistaken identity. If the company declines to listen to you --and ideally see any proofs you have--, that could evidence some sort of tortious conduct on the company's part. Beware that in Florida a defamed person is required to demand a retraction of the false accusations prior to filing a defamation suit. Absent that request for retraction, it will be very easy for the sued defamer(s) to have your complaint dismissed. If the company refuses to disclose the source of the false information, then you need to seek injunctive relief in court. That means suing the company so as to (1) compel the company to identify the person(s) who accused you, and perhaps (2) strike the ban that the company put in place as a result of the false accusations. Even if you don't prevail in striking the ban, the court proceedings would give you the occasion to set the record straight and prevent the company from defaming you if you legitimately expose (to the public) the arbitrariness of its ban. To be clear, the company can always indulge in defaming you for the sake of justifying its ban, although that would be dumb in light of what you will have proved in court by then. In jurisdictions where a request for retraction is not mandatory, a plaintiff who does not know the identity of his defamer(s) may (1) file suit against "Doe defendants", (2) subpoena the non-party company so as to obtain records related to the false accusations (obviously ensuring that these reveal the authorship thereof), and (3) upon production of subpoena records and requesting the identified defamer for a retraction, amend the complaint to properly identify the defendant. This would be more efficient than filing two suits (one for injunctive relief against the company, and another against the defamers). However, I am uncertain of whether this would work in Florida, given its pre-suit requirement of request for retraction. | This is a good question, although it discusses crimes. This answer generalizes the question by giving a response for civil violations. In the united-states, where federal civil-procedure is followed and provided the tape isn't solely for impeachment purposes (i.e. it also documents other elements), there are certain disclosures required at the beginning of discovery governed by Rule 26(a)(1)(A)(ii). If a party withholds one of these disclosures, under Rule 37(c)(1), the court is able to take a number of actions, including throwing the evidence out. This could, of course, result in the withholder's conviction. Yet, if the court does not go to that extreme, it may impose the sanctions in Rule 37(b). So the withholder's attorney might try to make a case that the evidence is, indeed, solely for impeachment purposes. |
Contesting Mojang's forced migration Mojang is forcing their users to migrate their account with their Microsoft account. Personally, I don't agree with this migration and especially the way they are forcing it on their users: if you don't migrate, you will lose access to the game. I have my reasons for not wanting to cooperate. For example, some people think it will even make the game less secure. In any case, I demand to either have access to the game or to get a refund. The latter is not going to happen as long as it's up to Mojang, since my refund request does not meet their refund requirements. Is there anything I can do about this? Can I force them to issue a refund? | You agreed to terms of use when you started using Mojang, posted at https://www.minecraft.net/en-us/terms and including: We may change these Account Terms from time to time, if we have reason to. For example, there might be changes to our games, our practices, or our legal obligations. We'll inform you of the change before it takes effect, either by posting a notice on our Website or some other reasonable way. If you use the Website or your account after the change, that means you agree to the changes. If you do not agree to the changes, stop using the Website. The changes will apply to your use of the Website when you next use it. That means Microsoft and Mojang can make a decisions like moving/merging your account without asking your permission. Website and product Terms of Service agreements are legally binding contracts, and you agreed to them when you started using their services. And refunds are part of the terms: RETURNS, REFUNDS AND CANCELLATION You or we may cancel your Mojang Account at any time or access to Minecraft.net, Mojang.com or any Mojang game titles using a Microsoft Account. When your account terminates or access is terminated, your rights under these Account Terms terminate. They can cancel your account at any time and not give you a refund. Can I force them to issue a refund? You can attempt to make your case in court, but a) you agreed to the contract, and 2) Microsoft has more money for lawyers than you do. | I am not a lawyer; I am especially not your lawyer; this is not legal advice; if you want legal advice, hire a lawyer. Idk. But probably not. The YouTube terms of service seem to prohibit this pretty clearly: You agree not to distribute in any medium any part of the Service or the Content without YouTube's prior written authorization, unless YouTube makes available the means for such distribution through functionality offered by the Service (such as the Embeddable Player)... You agree not to access Content through any technology or means other than the video playback pages of the Service itself, the Embeddable Player, or other explicitly authorized means YouTube may designate. Now, were YouTube itself licensing the videos in question under the CC license, they might be prohibited from enforcing that term: You may not offer or impose any additional or different terms or conditions on, or apply any Effective Technological Measures to, the Licensed Material if doing so restricts exercise of the Licensed Rights by any recipient of the Licensed Material. though I'm not sure if the language in question would apply. However, it seems likely that in most cases, YouTube is using the material in question under the license to which users agreed when they created their accounts, and therefore is not bound by the term in question. All that said, it's entirely possible that the clause in the YouTube ToS prohibiting downloading does not apply for whatever reason (unconscionable in a contract of adhesion, browsewrap agreement doesn't form a contract to begin with, it's superseded by either some other agreement (part of the API EULA, etc), it's contrary to some law in your jurisdiction, etc). Just to be very clear, though, there is no COPYRIGHT CONCERN preventing uses like the one you mentioned. | Sure, you can. But if you, from the US, contract with and pay someone outside the US and then use the results of that effort - the reverse-engineered code, either directly in violation of copyright or to find workarounds - within the US, you may not be culpable in a criminal sense (depending on different jurisdictions and trade/IP agreements), but you certainly would be liable in a civil sense. If the US based software developer (I assume a US-based software company, as you said "outside the US") tracks you down, they can open a civil action against you for any damages they want to claim, including theft of IP, loss of profits, EULA violations, and on and on, because you posses and are using reverse engineered code. How much money do you have to lose? | This is not (necessarily) copyright violation It's possible that Quora's usage falls within Fair Use. At the very least, the argument could be made. If it does, then there is nothing that Stack Exchange or the OP can do. Stack Exchange can choose not to protect their copyright Unlike trademarks, which lapse if not protected, copyright endures. Therefore Stack Exchange can pick and choose the copyright fights they want to get involved in and those they don't. If you have brought it to the attention of the copyright owner (or, in this case, licensee) and the copyright owner chooses not to act then you have done all you can and significantly more than you have to do. The OP has copyright I note that one of the examples is your question. As the copyright holder, you are free to issue a DCMA takedown notice on Quora if you feel your copyright has been violated. | Can you locate your license (generally not a trivial task)? It may appear under Help-About and a click to view EULA. The EULA specifically addresses redistribution of parts of the software and number of installations you can make with a single license. They do not say what uses you make make of the software, except that "You may not rent, lease, lend or provide commercial hosting services with the Software". There is no express prohibition against commercial or non-commercial political use of the product: anything not prohibited is allowed. The fact that they say nothing about the content that you create with Word means, they have declined to have a say in the matter. (I am not sure about the wording of the "Educational" versions of Office: those are somewhat negotiated between the institution and MS). | (2019 update See comments for my exchange with @benrg updating this 2015 answer. In particular, they do a fair job of representing a much less "paranoid" take on MS's take on users' privacy than my highly skeptical one. Also, the links in the answer below are to the latest versions of the respective documents. Archive.org has 2015 versions at 2015 EULA and 2105 privacy statement.) IANAL. This answer is just a broad picture. It's a simple explanation of Microsoft's own words, as they were at the time of originally writing this (just after the final release of Windows 10). TL;DR: Microsoft does not recognize users' privacy rights. The Microsoft Privacy document does not say anything positive about privacy in this document that isn't contradicted by their own words elsewhere in the same document. Microsoft does explicitly reserve rights to share users' private data with just about anyone and everyone. Microsoft explicitly disallows legal recourse regarding privacy. The Windows 10 EULA comprehensively denies legal recourse related to privacy (and indeed anything other than IP disputes). It's Microsoft's offerings as a whole, not (just) Windows 10 The key document to focus on is Microsoft's Privacy policy document. This policy applies to many Microsoft products and services, including, but definitely not limited to, Windows 10. Microsoft reserve the right to share your private data Quoting the "Privacy" document, Microsoft reserves the right to share users' private data: among Microsoft-controlled affiliates and subsidiaries with vendors or agents working on our behalf as part of a corporate transaction such as a merger or sale of assets [to] comply with applicable law [to] respond to valid legal process [to] protect our customers, for example to prevent spam [to] operate and maintain the security of our services [to] protect the rights or property of Microsoft as necessary to complete any transaction or provide any service you have requested or authorized Do users have any privacy rights? One can presumably fight for one's (perceived) rights even if Microsoft attempts to deny them. However, from the English Windows 10 EULA: you and we agree to try for 60 days to resolve [a dispute] informally. If we can’t, you and we agree to binding individual arbitration ... and not to sue in court Additionally, collective action or any other form of representative action is explicitly disallowed. Windows 10 data collection defaults to "Full" mode You've said that what data is collected is off topic. But I think it's worth recognizing that, with Windows 10, Microsoft have made the most popular install option collect and send to their cloud all data collected from your local device ("Full" collection) and have effectively made it a breach of contract to reduce it below a minimal level ("Basic" collection) that they get to determine and change as they see fit. And they can pretty much enforce the latter; if you hack a system to stop "Basic" data being sent to MS, they explicitly disable updates for that system. | Twitter don’t have to host your account UMG’s and Sony’s business is probably more important to Twitter than yours is. It seems Twitter have made a commercial decision to close your account down. They can do this: We may suspend or terminate your account or cease providing you with all or part of the Services at any time for any or no reason, … What’s happening is not fair use Fair use is a lot narrower than you think it is. UMG and Sony (and every other music label) get paid when people use their music on a commercial platform like Twitter. Which means, you enabling people to avoid this is directly reducing their market so this is not fair use. Giving credit does not help. Now, if your program blocked the use of copyrighted songs that might be ok. Your program looks exactly like a piracy tool I’m sure you have the best intentions but your tool readily enables copyright violations by others. That’s moving out of the realms of civil breach and into possible criminal sanctions. I wouldn’t push this if I were you. Your understanding of copyright is flawed This video is a good primer on copyright. | You agreed to this On Stackexchange, there are Terms of Service. These tell you to follow the Code of conduct and explicitly allow SO to throw you out if they don't want you to write here. Stack Overflow reserves the right to refuse, suspend or terminate your access to the public Network if it determines, in its sole discretion, that you have in any way violated these Public Network Terms or are otherwise ineligible to access or use the Network or Services. If your actions are determined by us to violate these Public Network Terms, Stack Overflow may, in its sole discretion, try to remediate that violation by working with you individually, but is under no obligation to do so, and if any such remediation efforts are unsuccessful (in Stack Overflow’s sole discretion), then Stack Overflow may revoke your rights to the Network. You agreed to follow the rules, and the code of conduct spells out that if you don't, then you face action. |
What recourse do I have if my car was broken into while in police impound? My car was being held as part of an investigation, while it was in police custody, it was broken into and personal effects were stolen along with the catalytic converter, it was one of several cars. A week or so ago a random boy showed up to the house with an ID card that belonged to one of my family members, and a couple other personal items, all of which were in the car, in the impound. What recourse do I have in a sitaution like this? | A person who impounds your vehicle has a duty to keep the vehicle secure until it is released, so you might be able to sue the operator of the lot for damages. An exception would be if the lot is actually operated by the government. Under the doctrine of sovereign immunity, you can't sue the government for messing things up, unless they have passed a law allowing themselves to be sued, which is unlikely. So it depends on who exactly had the vehicle, and in what jurisdiction. Your lawyer could tell you whether you have any recourse. You might be able to take advantange Baker v. City of McKinney, which made a federal case out of police property destruction, via the Takings Clause. | Both the police and the courts are likely to look at the situation as a whole, rather than adopting any policy specifically in relation to drivers or owners. For example, it's unusual for people to rent cars to their friends for months on end. That might suggest there is something untoward about the arrangement. Is there evidence of the commercial arrangement, or is the owner pretending to have rented the car out for months, when in reality they had stashed the drugs then let a friend borrow the car for a day? It would also be unlikely for a drug dealer to stash a large amount of drugs in a car then lend the car out on a long-term basis, so if the car is out of the owner's hands, that would tend to suggest the drugs belong to the person in possession of the car (and not the owner). But if the amount of drugs were small, typical of personal use, then it becomes more credible to imagine they could be forgotten by the car owner before lending the car to a friend. Police intelligence might also have a bearing. Does one party or the other have known links to the drugs trade? Also, is the lifestyle of one or the other, in particular, inconsistent with known sources of legitimate income? My point with all these questions is to highlight how sensitive the issue is to the fine details of the circumstances, and that it's impossible to give a strictly general answer. | Yes, the police can give you a ticket for not having insurance/registration in the vehicle, even if they know it is registered/insured. The requirement is not just that you must have it, but you must carry proof of it in the vehicle. California Law (CVC §16058) requires that insurance companies electronically report insurance information to the DMV, which the officer has access to and can verify insurance. From the California DMV Page: Financial responsibility (commonly known as insurance) is required on all vehicles operated or parked on California roadways. You must carry evidence of financial responsibility in your vehicle at all times and it must be provided as specified below when: Requested by law enforcement. Renewing vehicle registration. The vehicle is involved in a traffic collision. The reason it must be in your vehicle is that when you are involved in a collision, you have to be able to provide that to the other party. And yes, you can receive the citation even if the vehicle is not yours. It is your responsibility as a driver to abide by the laws and verify that the vehicle is legal to drive. California Vehicle Code (CVC) §4000(a)(1) requires registration: A person shall not drive, move, or leave standing upon a highway, or in an offstreet public parking facility, any motor vehicle, trailer, semitrailer, pole or pipe dolly, or logging dolly, unless it is registered and the appropriate fees have been paid under this code or registered under the permanent trailer identification program, except that an off-highway motor vehicle which displays an identification plate or device issued by the department pursuant to Section 38010 may be driven, moved, or left standing in an offstreet public parking facility without being registered or paying registration fees. I'm not advocating that you should just "suck it up and pay" this ticket. I would certainly bring proof of registration/insurance at the time of the ticket to your court date and provide that you are not the registered owner of the vehicle (you don't say, but I assume you were borrowing a friends vehicle). The court should look at that evidence and issue a warning or dismiss the ticket. | This is an excellent explanation. All Australian jurisdictions have (in general) common road rules. In NSW these are enacted by Road Rules 2014 regulation under the Road Transport Act 2013. The relevant provision is Clause 306: 306 Exemption for drivers of emergency vehicles A provision of these Rules does not apply to the driver of an emergency vehicle if: (a) in the circumstances: (i) the driver is taking reasonable care, and (ii) it is reasonable that the rule should not apply, and (b) if the vehicle is a motor vehicle that is moving-the vehicle is displaying a blue or red flashing light or sounding an alarm. From your statement (a)(i) and (b) would seem to apply so it becomes a question if (a)(ii) does. Well, you don't know the circumstances so you can't judge if it is reasonable that the rule not apply: if the police car were involved in a collision, caught on a red light camera or booked then the driver would have to show that it was. It is worth noting that some road offences like drink or dangerous driving are not in the Road Rules, they are in the Crimes Act and so the exemption doesn't apply to them. It is also not a shield from civil liability although the difficulty of proving negligence goes up because disobeying the road rules is no longer enough. | There are two separate questions here, it seems to me. First: are law enforcement officers required to respect your house rules and avoid making a mess? At least in the United States, the answer is unequivocally no. If the only "damage" suffered is that you need to sweep the floor, or put your clothes back in drawers, that's not the police's problem. You have not suffered any damages that a court is going to reimburse, and your best case scenario, even if you win a suit against the police, is an award of one dollar as nominal damages. Second: are law enforcement officers required to reimburse you for any physical damage they caused while executing the search warrant? The answer here is tricker, and depends on the search warrant. If the warrant is invalid, then the answer is yes. But remember: just because, for example, the cops are looking for the guy you bought your house from, who moved out a month ago, that doesn't mean the warrant is "invalid." Just because the cops got a bad tip, or suspected you wrongly, or were in some other way wasting their time--as long as the warrant is technically proper and they were able to convince a judge it was reasonable, the warrant is valid. Even if the warrant is invalid, you may need to sue the police to get anything reimbursed. If the warrant is valid, in practical terms, you will almost certainly need to sue the police to recover anything, and you will have to show the Court that the police's actions that damaged your property were so extreme that they were outside the reasonable scope of the warrant. For instance: the warrant is for a large item, like a stolen car: the police cannot smash holes in your walls to make sure the car isn't hidden inside. If they're looking for drugs, they may be able to. If the officers' actions are consistent with the scope of the warrant, then you are not going to recover anything. The warrant is, basically, permission from a judge to enter your home and perform those actions, and they will not be liable for them. A number of relevant cases are discussed in this article: http://www.aele.org/law/2010all01/2010-1MLJ101.pdf | No. This would not be illegal. You are not trespassing or breaking and entering since you have permission to be on the premises, and you are the rightful owner of the guitar so you are not depriving him of property that belongs to him. If you did this with the assistance of a law enforcement officer, rather than Bob's family, without a court order describing the property to be retrieved, this would be called a "civil assist". If the guitar were collateral for a loan, it would be a self-help "repossession" (a.k.a. "repo") authorized by the Uniform Commercial Code if it could be accomplished without a breach of the peace, and it would not require a court order. If you did this pursuant to a court order the case you brought to retrieve the guitar would be called a "replevin action" and you would also need to obtain a "writ of assistance" to authorize a trespass in the presence of law enforcement to retrieve the guitar. Also, Bob would still be be guilty of the crime of theft of the guitar, even though you got it back, because he took it with an intent to permanently deprive you, its owner, of the property that belongs to you. You could also probably sue him for conversion or "civil theft" in some jurisdictions, but your damages would be nominal except for punitive or statutory damages under a civil theft statute, because you ultimately got the guitar back, and so you suffered only minimal economic harm. | The answer across the USA is that no, you are not indemnified against getting a speeding ticket or perhaps a reckless driving charge. HOWEVER: In the mitigating circumstance of a medical emergency, if police did stop you they would most likely decline to give you a citation. If they did cite you, then a judge would most likely consider the extenuating circumstances. The difficulty with your premise is that average people who are put into situations like this often make very poor decisions that endanger themselves and others. The last thing that the ambulance crew wants to do is extricate your in-labor passenger from your wrecked car before they can continue the transport. | The citation could be written but it should be easy to beat. In the circumstance that you describe the accused could just say the he was not driving his car at the time. If the prosecution is a sham with all your friends saying you all saw this thing, then the defendant can bring all of his friends to say that he was at some other place. The benefit to having a cop on the scene is that the cop will get ID and positive identification. The other thing the cop has is expert judgment. If a cop sees unsafe lane movement and writes a ticket, his testimony in court carries more weight than the "it was not unsafe!" testimony of the accused. Keep in mind, getting all of your witnesses to court on the same day, after continuances and other delays, and getting them all to tell the same story to overcome the presumption of innocence is no small feat. All that to say, it's easier with police as witness. There are two mechanisms which could get you where you want to go. Private prosecution and citizen's arrest. Private prosecutions are a part of history but not strictly unavailable at the state level. You could write up some charging documents to see if you can get your target indicted. Citizen's arrest is interesting because the rules are fairly unclear unless governed by a specific statute. There are two necessary parts of citizens arrest and the first part gets the attention. The first part is the detention (arrest). The crimes for which a citizen can legally detain a suspect are likely defined by state statute. The second part is giving testimony about the witnessed crime. Let's assume that you see a felony happen and watch the perp walk into a gas station bathroom. You are prepared to arrest, do part number one, and then call the cops, to do part number two. But while you wait for the guy to come out of the bathroom a cop walks up. You explain the felony and the cop goes into the bathroom and arrests the guy. It's purely witness testimony that led to the arrest and the indictment (physical evidence - let's say there is none) and even the trial. You successfully get the guy indicted and when you show up to testify you tell the story as you witnessed it. Now the accused gets to take the stand. When he takes the stand he says, "it was the other guy." When asked, "what other guy?" He says, "I was in the bathroom and a guy ran in and went into the stall. Then a cop came in and arrested me." Reasonable doubt right there. How much more if it's a bunch of friends ratting on some lone driver? Police need evidence. Prosecutors need evidence. Judges need evidence. |
Do teachers in the UK really lose their jobs if they accidently touch a child? I once had a talk with a teacher in which I mentioned to her that when I used to teach 9 year olds music theory I would hold their hands while we drew treble and bass clefs together. Then slowly I would wean them off my assistance until they could write the clefs themselves. I never thought much of this because I had a 100% distinction record all the way through the decade I taught, so I assumed my methods were validated by the extended spell of high achievements as made clear by multiple music examination boards, both local and international, on my candidates' certificates. I only ever asked to have the quality of my instruction be judged by my results. She then told me that this would be unacceptable in the UK. That there have been developed whole methods of piano instruction that teach teachers how to teach the piano without any touch. That the associate board of the royal schools of music holds seminars in the UK to better equip music teachers in teaching like this. You would also find multiple articles in their quarterly newsletter about the subject. I then asked her if it would surprise the English that if I were to touch a child to help him to learn the specific notation of a treble clef that my motivation for doing so is not to abuse the child, but in fact only to teach the child the subject matter that his or her parents employ me to do. To which she sarcastically replied it would surprise every member of parliament in the UK who could not teach an apple how to fall off a tree but make the policies that govern the teaching profession. So that made me wonder if this is true, what would happen if a primary school child arose from his desk a little too vigorously and fell and started crying. I'm assuming there is no way to console a crying child without touching him, so I guess the teacher's only recourse would be to call the nurse and get her to remove the crying child. I now better understand why the UK government has to import teachers. So in closing what exactly is the policy regarding this? | There is no nationwide prohibition on physical contact between teachers and children. But there are positive duties for child safeguarding which might result in a local policy that is more restrictive. The exact legal background is different depending on whether this is happening in England, Scotland, etc., or on whether it's a state or private school, but the net result is the same. For music tuition which takes place outside school, bodies such as the Independent Society of Musicians (the UK's main professional association for musicians and music teachers) will have their own policies for members. For example, for state schools in England, the governors must "make arrangements for ensuring that their functions relating to the conduct of the school are exercised with a view to safeguarding and promoting the welfare of children who are pupils at the school" (Education Act 2002 s.175(2)). This is a bit of a mouthful, but the rough idea is that the school has to implement certain policies in the interests of the child, including protecting them from sexual abuse and grooming. The school has to take account of statutory guidance from the Department for Education. In addition, there are standards for teachers' conduct which are used to assess their performance, and include language around safeguarding duties as well as "proper and professional regard for the ethos, policies and practices of the school in which they teach". Now, there is nothing here to say that a teacher can never make physical contact with a pupil. There are rules about how allegations of abuse are meant to be handled, as well as the general employment law around unfair dismissal, which would mean that accidentally touching a child ought not to result in immediate sacking. A particular school could decide that on balance, the appropriate policy is one of no physical contact at all, or they could be more nuanced (which is likely). Whatever policy they do have must be communicated to the teaching staff, who naturally are meant to follow it - although again, there are requirements of fairness on the employer as to how they handle noncompliance. Given that overall framework, scenarios of accidental touching, or administering first aid, or breaking up a dangerous situation, are different from physical contact as part of normal instruction. Even a local policy which ostensibly says "no touching ever" would have to give way to the Education and Inspections Act 2006, s.93 which specifically authorises our hypothetical teacher at an English state school to use reasonable force to stop a pupil injuring someone else, among other examples. That is also in line with the teachers' duty of care towards the wellbeing of their pupils. These examples are not really the same as what is happening in an ordinary music lesson. Meanwhile, outside the school gates, the Independent Society of Musicans has its own Code of Conduct which includes specific rules about touching in Annex 2, paragraph 20. Physical contact between teachers and pupils is only appropriate in very limited circumstances. Teachers should consider using other strategies such as demonstrating for the student to copy or using a mirror. If a teacher intends to use any physical contact in their teaching, they should state this in writing before lessons begin and ask the parent or guardian to sign that they have read the document. Explain the type of touch involved, where on the body and why, and make sure the pupil is aware of the reason for physical contact. Explain this orally to parents, guardians and pupils, and keep them informed of any need to modify the type of touch required as pupils progress. It is not advisable to touch a child on the trunk of the body unless there is a justifiable reason (e.g. to administer first aid). It is not appropriate to touch a child around the chest, waist, diaphragm or ribs in order to teach breathing. These rules are also made in the context of safeguarding, with the threat of terminating ISM membership (at least in principle). Note that this does not say that touch is disallowed, but does ask it to be limited and respectful, and clearly signalled to the child and their parents or guardians. Other professional societies may well have their own rules. All of this is happening at the level of law and policy, and so it's a little removed from the highly emotive social question of what sorts of behaviour are considered acceptable. Someone who teaches music in the UK would be exposed to a range of strongly-held views on the topic, which don't necessarily relate very clearly to the legal minimum requirements. | Rudeness is not a crime Thankfully, or I’d be writing this from jail. The threat or actually of intentional and unwanted physical contact is a crime. Historically these were seperate common law crimes (and torts) of assault and battery respectively. However, in most jurisdictions these have been codified and merged and redefined so there is common assault (which merges historic assault and battery and is what you are asking about), indecent assault, sexual assault etc. In general, there must be an intentionality to the contact - accidentally colliding with someone is not assault (although it can be the tort of negligence). Similarly the contact must be unwanted - participating in a game of rugby means you want to be tackled (in a legal sense, in a sports sense you don’t want to be tackled, you want to score). And finally it must intend harm - holding your hands up to prevent a collision does not intend harm even if harm may result, punching someone does. In the cases you describe, the aggressor is the “elderly person” and they have committed a crime. I am interested in the suggestion that public opinion in first-world countries like Canada is that being old and annoyed justifies you beating someone. That is not my understanding of public opinion in Australia- old people have to follow the rule of law here just like everybody else. | At least in the United States (and I'm pretty sure this is true around the world), facts and information cannot be copyrighted. Just because a work is copyrighted, doesn't mean every part of that work is copyrighted, and factual information conveyed by the work is a part which is not subject to copyright. Copyright on a collection of facts is limited to the selection and arrangement of those facts, and only if that selection and arrangement has some bare minimum amount of originality. See Feist v. Rural, 499 U.S. 340. In this case, it looks at first glance like the person who made that site made their own selection of which materials and which sources would be included; the one place where they really seem to have copied their selection is from glass catalogs with datasheets from specific manufacturers, who would have a hard time arguing that "everything we manufacture in this widely-recognized class of substances" is an original selection. What the author of the website has done is relinquish his rights in his selection and arrangement of the data. In some places, there are other rights besides copyright that do apply to databases; for instance, the EU recognizes database rights to protect significant investment in compiling a database of stuff. But the US does not have that concept. For citing stuff, that's not really a legal question, and has more to do with academic standards. Ask your adviser or teacher if you have one. | This may well be infringement, but I agree that you should start by reaching out to the instructor. You don't want to pay a lawyer if the matter can be be adjusted peacefully. In the US there is a special limited exemption to copyright for "use in classroom instruction" which might apply in such a case. I am not sure if there is a similar provision in Canadian copyright law. But the instructor is likely to change his practice if you notify him of your objection, even if he has the technical right to use the photo. At least it is worth finding out. If he won't, then you can always consult a lawyer. | Let's break it apart: The police has an union or charity. That's legal in most jurisdictions. The union or charity accepts donations from non-police. Also legal in most jurisdictions. The union communicates who the donors are. Generally legal in most jurisdictions. Keeping it secret would be just as problematic. Police officers have some discretion if and how they charge incidents. That's just common sense. Otherwise you get cases like 8-year-olds being arrested. (You get those anyway when the police don't use their discretion, or if the laws are too rigid.) Police officers let themselves be influenced by the donor card in how they apply their discretion. That's usually illegal on the part of the police officer. The Brits use the catchphrase 'without fear or favour.' But it is difficult to prove, even if it is systematic. The union issues donor cards to facilitate the effects of the previous bullet point. That sounds at the very least unethical. Some might argue that it is organized corruption. On the other hand, you can assume that the police unions have some decent lawyers on staff, and that they made sure that the words on their cards are not blatantly illegal in the jurisdiction in question. It might take something like a whistleblower, a sting operation, or an internal affairs investigation to prove corruption. | It looks to me as if "money laundering" is a misunderstanding; though any organization has a duty to prevent this, charities have no special responsibilties. However, charity law does in general terms prevent a charity from giving money to a cause that does not further the charity's aims. The Charity Commission's guidance says "Charities can only spend their money on projects or activities that support the aims stated in their governing document" (and although it goes on to outline exceptions, you still need to obtain the Commission's agreement to return a gift from a source you find objectionable, for example). The rationale is that people gave money to the University to further the cause of education; the researchers have no right to divert that money to Shelter (or another charity like the Roman Catholic Church) without the giver's consent. My experienced but non-expert view is that these payments would be a breach of the law, though they would probably be treated as a de minimis exception; you can't blame the University's legal team for insisting they should not be made. | There are legitimate apps that let you buy phone numbers. With the right app I can buy let's say a landline number in Kansas. I call you, and you will think it's some guy in Kansas calling you. That's totally legal, it's a genuine phone number, and just like I can buy 10 phones and have ten phone numbers, I can use an app to pretend to have 10 phones. I cannot pretend to by your child's school with that kind of app, because for obvious reasons your child's school's number is not up for sale. If an app let's you pretend to be someone else, like your child's school, then your phone company will be very interested in hearing about that. You don't have to sue the app maker, your phone company will. These three police officers will also be very interested, and impersonating a police officer is by itself a crime. (Normally impersonating a police officer is done by putting on a uniform, but calling you with the number of that police officer will also count). So these three police officers will have a word with your husband as well. So suing the app maker (you can't sue an app, you can only sue the people responsible for it) is very hard, and not needed. Complain to your phone company, complain to the police, first to the three police officers he impersonated (the phone company will have records of phone calls seemingly coming from them) to advice them they are being impersonated, and then you complain to the police for harassment. | I found a number of news stories and official documents about public schools with such policies including: "Parents face more fines and rules if their children miss too much school" from Public Opinion; "School Adopts Strict Policy on Parents Picking Up Children Late" from the Los Angeles Times; "If you're late to pick up your kid at school, expect more than embarrassment" from The Oregonian; "Late Again? This School Fines Kids Who Aren't on Time" from Parents; "Late Pick Up Policy" from Hazelwood Elementary; and "School Issues Terrifying Threat to Parents Who Pick Up Kids Late" from Yahoo Parenting The last story is about a school that threatened to call the local child protection authorities to take children into custody if parents were late, even by a short time. This was rescinded and apologized for. None of these stories mentioned any source of authority to impose such fines, nor any parent who had legally contested such fines. Public schools do not generally have authority to fine parents unless a law or ordinance grants such authority. Usually a school would need to file a report with law enforcement, and any fine be imposed by a court. But it may well be that parents are simply paying in such cases, rather than insisting on legal authority. If a student is left unsupervised, a school would pretty clearly have the right, and in some cases the duty, to notify the police or the appropriate child protection agency. Parents might fear that resisting the fines would lead to that far more drastic response, and so not challenge any fine. I did not include any of several news stories about similar practices in the UK, as the legal basis would be different there. But there were several such stories. There were also several stories suggesting that such fines can be counterproductive. It seems that some parents tend to come to regard them as fees, and are perfectly willing to pay, and the fine replaces the feeling of social obligation which might have been stronger. But that is not really a matter of law. |
If you let a thief into the building, are you liable? In a building with gated entry, if a resident lets a stranger into the building, and he turns out to be a thief, would the resident who let him in be liable for the damages? | The primary legal question is whether the resident (tenant) has breached a duty of care. There are all sorts of laws establishing duties of care, such as between doctor and patient, which may be created by a legislature or may be part of common law tradition. There is a duty of care imposed on a landlord w.r.t. the tenant, requiring that the premise be "secure", therefore a landlord might easily be held liable if the main door into the building was not locked. This duty is a specific instance of a general duty from tradesman/businessman to customer. As far as I can determine, there is no such statutory duty imposed on tenants in Washington state, and none from case law being revealed by a few cursory searches. In order to be subsumed under general "everybody has a duty to everybody else" law, the damage would have to be foreseeable. It is said that "If something is foreseeable, it is a probable and predictable consequence of the defendant’s negligent actions or inaction". This mean that a reasonable person would have known that, under the circumstances, the damage is likely to result. Circumstances vary quite a bit, and there is no general rule about holding the door open for another person. If there is abundant signage reminding tenants to never ever let in a stranger no matter that their excuse and/or if the premise is in a crime war-zone, the outcome is more likely to be considered to be foreseeable. | You may contact a towing company; they will ask who you are, and will politely inform you that since you aren't the property owner, they aren't authorized to take someone else's car that is trespassing on the property. [Addendum] The first step in unraveling the legalities of the situation is seeing that only the property owner can give permission to enter (park) on the property. That permission can be rescinded, but only by the owner. The owner seems to have given permission and has stated in advance some conditions under which permission might be rescinded. The towing company could be called (by the owner) to act as the agent for the owner and remove the offending vehicle; but the towing company cannot just up an do this on their own. If they were to spontaneously tow a vehicle without officially acting on behalf of the owner, they would be liable for damages, owing to their having torted some guy's chattels. So the company will want to know that they are protected, in acting as the agent of the property owner. One way to do that is to verify that the person calling the towing company is the owner. Another would be to get the caller to swear that they are the owner and indemnify them against damages, in case they get sued. That pound of cure is more costly and annoying than the ounce of prevention of making sure that you're towing a car with proper authorization, so it's unlikely that they would just tow the car on your say-so. You might try suing the complex owner for some kind of breach of contract, if you think you have a contractual right to a parking space and they are negligent in doing what's necessary to meet your contractual right. The lease says "we may...", not "we will", so they haven't promised to absolutely enforce this rule. Or, of course, you could call the manager and mention that there's still a problem. | The owner would need to go through the eviction process, and would need to show that the tenant had violated the terms of the agreement. Conceivably, a tenant could be evicted for using the property to carry out a criminal enterprise, but the courts would have to decide if that is the case. The underlying issue would be whether allowing the tenant to remain would constitute a public nuisance threatening public safety and morals and would cause damage to the owner in the form of loss of value in the property. The owner's attorney would study the specifics and give an appraisal of the likelihood of succeeding in court. | As you note, it does appear that this tenant has committed one or more crimes. In Pennsylvania crimes are prosecuted by the state, and you can begin the process by filing a private criminal complaint with your local Magisterial District Court, which will forward it to your county's District Attorney for review and prosecution. You've essentially written the complaint here; now you just have to file it. The criminal process would proceed independently of whatever civil processes you might be pursuing. | I think the officer is probably lying, not just mistaken, but they are not required to always be truthful. In addition to the law against possessing ID with intent to commit, or to aid or abet, any crime, it is also against the law to be knowingly in possession of a stolen credit card, or any other property. An example of a strict-liability possession crime, which the officer knows of, is that it is a crime to possess heroin, period. I am skeptical that the officer actually believes that there is a law making it a crime to be in possession of a credit card with permission, and suspect that he thinks it is stolen. | Probably not. Theft generally involves an intent to permanently deprive someone of property, or knowledge that one is taking actions that have the very likely probability of permanently depriving them of property. Here, there is an intent only to hold possession of the keys during the shift and to return them. Also, while the surrender of keys is contingent upon the incentive of further employment, it is still a voluntary surrender of the keys. The place where theft issues could arise is if the keys are not returned by the person holding them, either at the end of the shift as punishment, or in mid-shift, if someone insists upon their return, either in an emergency or because they are sick of this manager and want to quit. If keys were retained in those circumstances upon a demand for their return, there might be a problem. This is because continuing to refuse to surrender possession of property permissively given to someone when that permission is revoked, in the absence of a legal right to impose a possessory lien, would generally constitute theft. While the purpose for the manager holding keys in this particular situation don't seem very valid, I can imagine circumstances (e.g. MRI technicians, jail guards, underwater divers, the site only has tandem parking), where retaining keys during a shift might be reasonable and appropriate. | In the US it is generally illegal for you to open somebody else's mailbox. Your best course of action is to contact your neighbor and let them retrieve the package for you. In practice it might depend on your relationship with your neighbor. If you are good friends, they are unlikely to object or report you to the authorities as they'll be willing to trust that you were just retrieving your mis-delivered package. If you don't know your neighbor, or if you are on poor terms with them, they have no reason to trust your motives and they could reasonably think you were stealing from them or invading their privacy. As a tangential footnote: yes, people really can face federal charges for tampering with mailboxes. Recently a former city prosecutor and a former police chief for Honolulu were convicted of attempting to frame a relative on federal charges for stealing a mail box. A mistrial was declared on the mailbox theft charges, and in the process, an extensive web of corruption was revealed involving the former prosecutor and former police chief. | You aren't liable unless you do something stupid with them. Possessing keys doesn't make you the owner, it makes you someone with keys. That said, we could probably come up with negligent things you could do that would be a problem. Like have a huge heroin party (let's assume this is a thing) filled with minors in the back yard. The family of an overdosed kid would have a good action against you personally for being so negligent, and also probably against the homeowner and their insurance as the property owner. If the party turned wild and the house burned down, the owner would likely have good action against you as well. I doubt this is really a problem for you, so there's no need to worry. |
After I paid deposit and booked the car, dealer sold it without notifying me Day 1: I live in MA, USA. Last month I booked my first car from a local, small dealer by paying $300 deposit and signed the contract agreement. I also notified him that I'm going to take loan so I won't be able to give him check immediately. (His behavior was little bit rude and kind of money-oriented.) Day 3: Dealer gave me a call saying it's ready for pickup. I told him that loan got approved which it did happen at that point and I asked for his help to get insurance suggestion. He asked me to come with check and then he'd help me, instead of helping on the phone. Day 8: Bank account and loan paperwork was ready expect I needed his details to put on bank's check for the loan. He avoided all my bunch of calls. Day 10: I called him again, he picked up and said he can't wait for a month. It is written in contract that after he notifies me, I have to give him full amount within 48 hours. Contract agreement reads as follows: In the event I fail to take delivery of the vehicle purchased by me within forty-eight (48) hours after I have been notified by you that it is ready for delivery and pay the total contract price in the manner indicated, my deposit in the amount of $300 may, at your option, be retained by you to compensate you in whole or in part for any loss sustained by you. Your right to retain my deposit shall be in addition to and not instead of any other right or remedy provided by applicable law including, without limiting the generality of the foregoing, the sale of the car or truck I agree to purchase. If the amount of my deposit exceeds actual damages sustained by you, you will promptly refund the difference to me. I know that he's right according to the contract, but he never notified me before selling to other person. This is legit scamming people because for someone taking loan, it is almost impossible to give him check within 48 hours. How can I get my money back? Please help thanks in advance. | It's right in the contract In the event I fail to take delivery of the vehicle purchased by me within forty-eight (48) hours after I have been notified by you that it is ready for delivery and pay the total contract price in the manner indicated, my deposit in the amount of $300 may, at your option, be retained by you to compensate you in whole or in part for any loss sustained by you. Your right to retain my deposit shall be in addition to and not instead of any other right or remedy provided by applicable law including, without limiting the generality of the foregoing, the sale of the car or truck I agree to purchase. If the amount of my deposit exceeds actual damages sustained by you, you will promptly refund the difference to me. The car was ready on day 3. As a result, the Customer was obligated to pay and take delivery of the vehicle until day 5. Because the customer did not follow through with the purchase, the deposit is used to compensate the salesman in the amount that covers the costs of preparing the sale and having the car on the lot for those days that the salesman could not sell it to someone else. At the end of day 5, the contractual obligation to hold the car for the customers in exchange for the deposit ended, and the other clauses of the contract (car for rest of payment) become void. The car salesman is in his right to sell the car because the actual sales contract has fallen through and the holding fee/deposit expired, as the very quoted paragraph shows. Based on the final sentence of the quoted portion of the contract, to get a part of the deposit back, one would need to establish that the losses are less than the contractually fixed amount of 300 USD. When I had my car at the workshop and could not get it back on the day it was done with repairs, I was also informed that holding my car for more than a day would incur storage fees of up to 15 € per day. Similarly, the last time I bought a car, I was told that the sale included a fresh inspection and oil. Those are costs to the seller and can be accounted for in the deposit. The inspection costs about ~120 € for a new TÜV certificate and exhaust check and the materials for an oil change come for about 70 €. This leaves about 70 € cover for the mechanic and salesman's wages for about one hour. That's 300 €, or about 330 USD today. As such, costs to prepare a contract and transfer, inspect the car for roadworthiness as well as storage fees most likely are reasonably assessed to be in the 300 USD area. | The mechanic could be held liable, indeed this attorney explains what you have to prove in exactly this case (not necessarily involving a million dollar car). The mechanic was negligent in diagnosing and repairing the brakes. You then have to prove that you mad the mechanic service the brakes (receipts / invoices). You need an attorney to figure out exactly why the brakes failed – maybe he messed up reassembling the brakes, maybe the brakes were defective (product liability) and he was negligent in detecting the defect – then the manufacturer is also liable, and it becomes an issue of what percentage of blame goes to each person. This doesn't mean that you are off the hook, because you still might have taken action to avoid the collision (emergency brake? steer to the right? how fast were you driving, how close were you following?). | Please note that I'm not a lawyer. If you need specific legal advice, please consult a qualified attorney. Every time someone buys an item from someone else, there's at least an implied contract of sale where the seller of the item agrees to give the buyer the item to be purchased in exchange for a sum of money or other object of value which the buyer agrees to pay as consideration. Generally, in an online purchase, a contract of sale is completed when payment is made and the product has shipped. If the seller fails to provide the item you intended to buy after you make your payment, that's a breach of this contract of sale as the seller has failed to execute their end of the contract. I seriously doubt a "no refunds" policy would excuse the vendor for breaching the contract of sale. If you cannot resolve the issue with the vendor, then your best bet is to initiate a dispute through your credit/debit card issuer. | Dale M is correct. Lawyers get calls all day long from people who want free advice and have no intention of entering into a paid representation. That is what your letter sounds like. I write separately just to add that you may have better results if you make explicit that you are aware of their rates and prepared to pay them. Even then, though, it may be that whatever you'd pay for the two hours to walk you through this is not as valuable as time they'd spend on other matters. If I have to prioritize between a repeat client and someone who will probably not pay for anything more than having one question answered, that's an easy choice. | Yes The document is called an invoice and the customer has taken the clothing “on account”. Most businesses of any size outside the retail sector operate this way. Remember that you are effectively lending your customer money. What are the terms of this loan? What are you going to do when/if they don’t pay? You need to deal with this either in your sale contract or a separate credit contract. | Very briefly in terms of contract law, by hiring this person to haul away your trash, you're entering into a contract with him/her for the disposal of the trash. The fact that he says he has a legal place to dispose of the trash is part of your contract. That fact - either verbal (or in writing) in that contract - should really absolve you of any responsibility of what happens to the trash. You don't need to actually know all the details of his legal dumping place, but you can hold him/her to the agreement if it happens that they do illegally dispose of the property they have been hired to remove. In reality, this person is advertising this service as a business (on Facebook) and has been operating for some time, so they are probably legally disposing of refuse in a landfill while making some money from whatever might be valuable. The trash hauler probably depends on some of your trash being valuable, in terms of recycling or repairing or selling collectables ("old toys"), and not all of that will be disposed of in a landfill. I suppose it's possible a municipality could accuse you of illegally disposing of the trash if it was somehow tracked back to you, i.e. personally identifiable items or papers in the trash that was found illegally dumped. But you have the contract with the trash hauler to show you acted in good faith. Ask in the Facebook group if indeed this person disposes of trash in a legal manner, or ask others who have hired him/her. Clearly outline your stipulations for legal disposal with them. You can even ask to see their business license from the city/county. | Do you have a contract? It depends on the website’s terms but almost certainly not. It is standard practice in e-commerce terms and conditions that your selecting “buy” and giving the vendor money does not create a contract; you are merely making an offer that the vendor can accept or reject. For example, Amazon’s terms are clear that the contract only comes into existence when they dispatch the goods, until then they are free to cancel your order and return your money. Here the vendor rejected the offer. Is this false advertising? Maybe. It would depend on the specifics of the ad and whether, overall, a reasonable person would be mislead or deceived. It’s possible you misunderstood but that doesn’t necessarily make it misleading or deceptive. I misunderstand a lot of things; that doesn’t mean they were objectively misleading or deceptive. Notwithstanding, a business does not have to make good on false advertising. An incorrect advertised price does not force the business to anccept offers of that price. It may force a correction and may require the item to not be sold until the price is corrected and it may expose the business to fines, but it does not give anyone the right to buy at that price. | Based on your answers, it sounds like this transaction was most likely structured in one of two ways: (a) your colleague bought the computer with the intention that you would use it and then return it to him when you were done borrowing it for a task he hired you for; or (b) your colleague bought the computer with the intention that you would keep it as payment for the work he hired you for. In either case, it seems you would have to return the computer. In the first case, you received the computer only on the understanding that you would return it when you were done with the work. Because you are retaining it while your colleague owns it, your colleague could puruse a replevin action to force you to return the computer, or a conversaion action to force you to pay the value of replacing it. Scaffidi v. United Nissan, 425 F. Supp. 2d 1159, 1168 (D. Nev. 2005). In the second case, you would not be entitled to keep the computer because you failed to perform your contract. Because you are not going to complete the work you agreed to, you are not entitled to the keep the computer your colleague agreed to give you in payment. |
What legal recourse do we have against Clearview AI's collection of our personal data and terrifying privacy policy? TL;DR: how do we get the data this company collected on us without also giving them our government-issued IDs that they could potentially keep and tie to our "profiles"? A week ago (January 25th), the New York Times reported that Clearview AI, a neural-network-based facial recognition software, has collected and stored over 3 billion names, photos and addresses. The company's software is marketed to law enforcement officials, but the database is filled with publicly-available data scraped from sites like Facebook, Twitter, etc. Concerns are growing that the database could infringe upon personal freedoms, specifically the right to privacy when used in conjunction with state-of-the-art mathematical facial recognition algorithms recently published. I agree with those sentiments, this technology is dangerous. Now Forbes has reported on it as well and affirmed those beliefs, highlighting the Clearview AI privacy policy's horrible stipulation for obtaining your own personal data that they have collected: Contact information If you would like to ask a question about our privacy policy or exercise your data privacy rights please contact us at: [email protected]. This address will connect you to our Data Protection Officer. Please submit name, a headshot and a photo of a government-issued ID to facilitate the processing of your request. Privacy requests can also be submitted via (phone or mail). ... Requests to exercise data protection rights can be submitted here to [email protected]. (see below for further instructions) These rights are subject to limitations that vary by jurisdiction. We will honor such requests, withdrawal or objection as required under applicable data protection rules but these rights are not absolute: they do not always apply and exemptions may be engaged. Clearview does require that persons requesting the sharing or deletion of their personal data provide us with information to verify their identity and to facilitate the processing of data requests. While most of this information is deleted after the completion of the request, Clearview is required to retain some of this information to maintain a record of data rights requests. If we do not comply with your request, we will explain why. Updates to this Policy Clearview AI regularly reviews our privacy policy and places any updates on this web page. This policy was last updated on January 23, 2020. *Clearview AI privacy policy The language of this policy, combined with the fact that it was updated while the news is breaking about growing concerns about its potential impacts on privacy makes me very concerned. This company, not unlike others in modern history, has scraped or purchased billions of data points containing personally-identifying information (names, photos, addresses, etc.) of American (and likely many other countries') citizens. In order to know what they've collected on us, we have to give them a government-issued ID?? How can I (we) get what data this company has on us without further violating our own personal right to privacy? Side note/bonus question: is this kind of software not a direct violation of our Fifth Amendment rights to privacy of personal information? | Breach of GDPR France, Italy and Greece fined Clearview AI 20 million Euros for the following breaches: Unlawful processing of personal data (breach of Article 6 of the GDPR) Individuals’ rights not respected (Articles 12, 15 and 17 of the GDPR) Lack of cooperation with the CNIL (Article 31 of the RGPD) https://techcrunch.com/2022/10/20/clearview-ai-fined-in-france/ https://techcrunch.com/2022/03/09/clearview-italy-gdpr/ https://techcrunch.com/2022/07/13/clearview-greek-ban-order/ | Is it GDPR compliant that I can't access the account that I created and the personal data that I shared because "I haven't completed their internal pre-qualification process"? Article 15 defines a “Right of access to the data subject” but it's difficult to see how this could be construed as a right to log into a specific website. Common sense suggests this would be a very bad idea. If they are willing to provide the data through another means (say a report or data dump of some sort), the obligation would seem to be met. In fact, article 15(3) even states that data controllers should merely provide the information in a “commonly used electronic form” (i.e. not necessarily through access to their systems or whatever form they are using internally for the processing). Have you asked for that and would you be satisfied by that resolution? Is it GDPR compliant that their answer to my deletion request is "We will delete the data..." The text of article 17 (right to erasure) explicitly specifies that such a request must be honored without “undue delay”. Article 12, which defines some of the modalities for the rights to access, rectification or erasure by the data subject, also provides that controllers shall “provide information on action taken on a request […] without undue delay and in any event within one month of receipt of the request”. You haven't provided any time frame and I don't think there is anything wrong with acknowledging the request by promising they “will” do it but in light of article 12, it seems you would indeed be entitled to know once they have actually taken further action. However, you implied you might want to access the data first and it's not clear to me whether you explicitly invoked the GDPR in earlier communications. So I would clarify and reiterate my request (access or erasure) and ask them for explicit confirmation once it has been satisfied. | We cannot dispense personalized legal advice: that is what your attorney is for. However, I agree with your analysis that this is most likely covered by fair use, and indeed it is not obvious that you have taken anything that is protected. There is no creativity behind a number such as entries in the "I did N pushups" column. The arrangement of data into a web page passes the smidgen of creativity test, but "210" is not a creative number. The terms of service of a website cannot negate your right to use the website however you want in a non-infringing way. If your use is "fair use", then they can't tell you that you can't use it. In case it turns out that "fair use" fails, the matter would hinge on what exactly the TOS says. They may have granted you permission to make use of their "information". So there are three positive avenues for you to consider: not protected, fair use, and permitted. A practical difficulty is that a university lawyer is only interested in the interests of the university, and they are as likely to say "don't do that" or "get permission" as they are to say "that is fair use". You can hire a lawyer who is paid to care about your interest, though there is never a guarantee that the lawyer's advice is correct. I think it is likely that the lawyer will tell you to not say anything until legally forced to, given the apparent rebuff of your request for special permission. | Federal and state laws do protect a variety of different types of personal information in particular contexts, but there isn't really any information that is necessarily personal and protected from disclosure in all contexts. For instance, the Health Insurance Portability and Accountability Act generally protects a person's health records from unnecessary disclosure, and the Federal Education Rights and Privacy Act generally protects a student's educational records from unneccessary disclosure. But that doesn't mean that all of an American's health information is protected, or that all of the information that a hospital holds about an American is protected. The hospital can typically disclose the fact that it is treating a specific person, and if that person provides his health records to a government employer, that employer may be required to produce them in response to a request under the Ohio Public Records Act. But Facebook isn't a health-care provider, so it isn't required to protect medical records, and it isn't a school, so it isn't required to protect educational records. At the federal level, I don't know of any privacy laws that require it to maintain the privacy of its users' information, though it may be required to do so under state laws, or as a contractual matter because of its privacy policy. But that doesn't mean it has nothing to worry about. Like any business in the United States, it is prohibited from engaging in deceptive trade practices, so it can't make broad promises to protect users' privacy when it has no intention of honoring them. That's why it ended up paying $5 billion for privacy violations in the past and remains under court orders requiring it to better protect users' data. Further, Facebook has users all over the world, so it is required to comply with the international privacy regulations like GDPR that can be far more stringent. | If the lawyer has legitimate concerns, his first port of call would be the ICO https://ico.org.uk/. Before the ICO will take his complaint further he'll have had write to you expressing his concerns and received a written response that presumably he is unhappy with, and wants to take the issue further. Most companies have a data compliance team who will have policies and procedures to log breaches like this and decide what course of action to take in response. Not every breach needs to be brought to the attention of the ICO, and they have a handy self assessment tool to see if you should report the breach. https://ico.org.uk/for-organisations/report-a-breach/ In your situation, I don't think this constitutes a serious breach which will require investigating. It's simply an admin error. If it is unlikely to pose a risk to any of the individuals they will say something like: You should keep an internal record of the breach as detailed in Article 33 (5) of the GDPR, including what happened, the effects of the breach and remedial actions taken. The definition of risk according to the ICO is: "This risk exists when the breach may lead to physical, material or non-material damage for the individuals whose data have been breached". So in this case I'd assume a simple apology (Bcc'd :) ) and a record of what happened, how it happened, and the action taken to prevent it happening again should suffice. | gdpr The obligation to provide a privacy policy stems from GDPR Articles 13 and 14. When the information has to be provided depends on when personal data is obtained. Information under Art 13 (data obtained directly from the data subject) must be provided at the time when the personal data is being obtained. Since most websites will obtain personal data pretty much continuously, they will likely have to keep this information available continuously as well. Information under Art 14 (data obtained from other sources) must be provided within a reasonable time after obtaining the information, but at the latest when the data subject is contacted. So this depends very much on when data is obtained, and whether personal data is obtained directly from the data subject. E.g. a website generally obtains some personal data directly from the data subject every time a user visits the page, thus it will likely have to keep a minimal privacy policy available all the time, for all visitors (whether registered or not). In contrast, for individual instances of personal data processing, it may be sufficient to provide the information only once. For example, if we ask a user to enter information to enter a raffle, the privacy policy regarding the raffle might only have to be shown in context of the form where the user can enter data. However, all such approaches stink. Doing the bare minimum that's explicitly required is an easy way to run afoul of more foundational GDPR principles, e.g. the Art 5(1)(a) requirement that all data processing must be transparent (compare also Art 12(1)), and the Art 5(2) accountability principle: the data controller must be able to demonstrate how what they're doing is compliant. The Art 13 and 14 time frames are the latest point in time at which this information has to be actively provided to the user (compare also the guidelines on transparency WP260). But it would be entirely possible for a court to argue that the transparency principle implies that all such information must be available to the user for the duration of all related processing activities, possibly both before and after the data subject was explicitly informed. The WP260 document also emphasizes that the data controller must take the reasonable expectations of the users into account, and most users expect a “privacy policy” link in the footer of every page. As a more general point, the GDPR never requires that data subjects agree to a privacy policy. A privacy policy is largely unidirectional information, not a contract. Under some circumstances, the data controller may rely on consent as a legal bases for processing, and will then have to obtain consent from the data subject. In the course of this, it is necessary to provide information about the specific processing activities for which consent is being asked. Usually, this is done by a short summary with key information, and a link to the privacy policy for the full details (a layered privacy notice, compare the WP260 document and the EDBP guidelines on consent 05/2020). But valid consent can only be obtained for specific processing activities, not for a bundle of processing activities or a privacy policy in its entirety. | Privacy against publication of criminal convictions has been considered in the High Court in NT1 & NT2 v Google LLC [2018] EWHC 799 (QB), if I may run the risk of posting a legal citation myself. But note that the claimaints there are anonymized, as often happens in criminal trials as well. In some cases, the court may give an injunction against disclosing names or details, and can hand down both a public and a private judgement, with the latter being a restricted document that does have the identifying details. So this question could only apply to mentions of criminal process where the accused is actually identified. (And I think just saying "R v Smith" is not enough - the posted or linked text would have to give some identifying detail about which Smith it is, the nature of the crime, etc.) I have no qualms at all about talking about NT1 and NT2. The claimants brought a case against Google for making available information about their long-spent convictions, including on GDPR grounds although it took place just before the implementation of GDPR in UK law. Dealing with that argument under the prior legislation, the judge found that of the various exemptions claimed by Google, the condition The information contained in the personal data has been made public as a result of steps deliberately taken by the data subject. (found in the Data Protection Act 1998, Schedule 3, paragraph 5, implementing the Data Protection Directive that preceded GDPR) applied, because of a longstanding principle for criminal conduct. The idea is that (paragraph 111): A person who deliberately conducts himself in a criminal fashion runs the risk of apprehension, prosecution, trial, conviction, and sentence. Publicity for what happens at a trial is the ordinary consequence of the open justice principle [...] The same must be true of the details of the offending, and other information disclosed in open court, including information about himself which a criminal reveals at a trial or in the course of an application. The core principles are the same as the carve-out from defamation law for the fair and accurate reporting of criminal proceedings (paras 44-49). That "made public" condition can now be found in a slightly different context in the Data Protection Act 2018, Schedule 1, Part 3, paragraph 32, which mirrors Article 9(2)(e) of the GDPR for the purpose of Article 10: This condition is met if the processing relates to personal data which is manifestly made public by the data subject. Since this is virtually the same condition of European provenance, in the same context of surrounding rules, I think the precedent is a good guide. For courts themselves, law reports, and journalism or scholarship, there are other specific grounds to rely on. Individual Stack Exchange posters are surely covered under the general exemption for posting on social media in a private capacity, GDPR 2(2)(c) as interpreted through its Recital 18. For the site itself, as in the case of NT1 and NT2, there could well be a legal claim made about the inclusion of criminal conviction information in a posted answer. (In general, such a post, being free text, could contain all sorts of defamatory statements or other objectionable content.) The court would have to look at the competing interests and the level of harm. NT1 was not successful but NT2 was. The example scenario, where we are talking about a very brief mention of a criminal case, cited because it illustrates a legal point rather than because there's anything relevant about the person mentioned, is quite far from the grounds complained of by NT2. For NT2, there was a newspaper article in which he was "quite inappropriately, portrayed as one of a rogues' gallery of serious criminals" (para 188), eight years after the end of his sentence, and it was this that he wanted removed from search results. In particular, the academic exemption (para 13) seems strong, in the same way that it would be for a publisher of legal academic content. The test of "substantial public interest" does not apply, because this exemption comes through paragraph 36 in the case of criminal convictions; it's enough to show a reasonable belief that publication would be in the public interest. Google was not able to rely on the "journalism" version of this exemption (again, under the prior law) because they are a totally generic search engine for all kinds of data and purposes (para 100 of the 2018 judgement). The public interest test, and the accompanying "legitimate interest" for the data controller, do not seem too difficult in this example. | You have an agreement with the store that allows you to use scan and go technology. Part of that agreement a bit that says we may ask you to help us confirm that the service is working effectively by allowing us to check your goods against the scanner or to re-scan your shopping They also say that they are entitled to withdraw your right to use the Scan and Go service at any time if you do not comply with these Terms and Conditions. If we do that, the legal agreement created between ASDA and you under these Terms and Conditions will come to an end immediately, although any relevant statutory rights that you may have will not be affected. More generally, ASDA reserves the right to withdraw the Scan and Go Service at any time, at its sole discretion You have implicitly consented to a brief stop for a rescan. I don't see any implication that they assert a right to search your person. You can refuse a re-scan and they can process you like an ordinary customer. As for shoplifting, as this article summarizes, security can make a citizen's arrest if they suspect that you have committed a crime (theft). They have to have reasonable grounds for thinking that an arrest is necessary to prevent the loss. Hence they can detain you until the constable arrives. |
What's stopping someone from saying "I don't remember"? There are (at least) two problems possibly stemming from a person testifying in court: If they tell the truth, the testimony may have negative consequences they potentially don't like (which is the whole point of 5th Amendment, when the testimony is by the accused or in general detrimental to person testifying). If they lie, they can be convicted of perjury, which is a nice fallback when you don't care about actual crime but about getting the person damaged at least somehow - US history and especially politics is littered by people who were gotcha-ed by perjury charges and not main charges. If that is the case, then what prevents such a person from simply saying "I do not remember" when testifying? You can't prove a negative, so they can't be convicted of perjury for lying about whether they remember; they didn't testify about any fact so they can't perjure themselves; and they didn't help the prosecution (or defense) by truth. | You can't prove a negative, so they can't be convicted of perjury for lying about whether they remember; Yes, they can. The government can convict the witness of perjury by proving that they did remember. This may be difficult, but it's not impossible. Now you may say that we can't ever prove with certainty what a person did or didn't remember. But the legal standard isn't certainty, it's beyond a reasonable doubt. So a jury is allowed to draw a reasonable inference about whether they remembered, based on evidence of their outward behavior and other circumstances. As an extreme example, suppose Alice was overheard chatting freely about topic X an hour before the trial, but when asked about topic X on the stand, said she didn't remember. When presented with evidence of her earlier conversation, a jury could reasonably infer that she was lying about not remembering. Is it possible that she truly had a memory lapse in the intervening hour? Sure, anything is possible. Is it reasonable to believe that she did? Probably not. The US Department of Justice's Criminal Resource Manual has this to say on the subject: Witnesses who claim not to remember, rather than deny a fact, may be prosecuted for perjury. However, the government must prove both that the witness at one time knew the fact and that the witness must have remembered it at the time he or she testified. United States v. Chen, 933 F.2d 793, 795 (9th Cir. 1991). If the dates of the transaction and testimony are sufficiently close, memory may be inferred. Instances in which the witness remembered other events that occurred at the same time or earlier than the event in question, or mentioned the event either immediately before or after his testimony, would be probative of the witness's memory at the time of the testimony. The two witness rule does not apply to prosecutions based on false memory lapses, and circumstantial evidence is sufficient, since there is no direct evidence possible concerning what the defendant actually believed. Gebhard v. United States, 422 F.2d 281, 287 (9th Cir. 1970). There's a similar issue in all laws that deal with a person's knowledge or intent. Suppose Alice hits Bob with a stick and he dies. To convict Alice of murder, it must be proved that by hitting Bob, she intended to kill him. Can we ever really know what was in her heart? Maybe not, but if there is evidence that shortly beforehand, she told someone that she was going to kill Bob, it would be a reasonable inference that this was her intention. | The Fifth Amendment would not apply, because nothing in the testimony would incriminate the doctor. Indeed nothing would be at all likely to incriminate the President either, it is not a crime to be unable to carry out Presidential duties. It is likely in such a case that the President would waive confidentiality. In that case the doctor could testify freely. If the President insisted on confidentiality, and attempted to prevent the doctor from testifying to Congress, there would be a conflict between the power of Congress to compel testimony, in this case on what is clearly a vital national issue within the scope of the needs of Congress, and traditional doctor-patient confidentiality, let alone the requirements of HIPAA. I am not sure how this conflict would be resolved. There might be an emergency application to the Supreme Court, but the SC does not usually do very well with truly urgent issues. The Pentagon Papers case and Bush V. Gore indicate some of the problems that can arise. If the doctor was prevented from testifying, that might incline members of congress to think the testimony would not be favorable to the President, and thus tend to suggest that they should not approve the President resuming or continuing his or her powers and duties. But that is rather speculative. The 25th has never been invoked, and the detailed procedure that would be followed if it were is not very clear. I am not aware of any similar situation in which medical testimony has been demanded to deal with an urgent issue, but the patient has attempted to block it. I think this case must be considered to be undecided until it actually arises and a court rules. | The citation could be written but it should be easy to beat. In the circumstance that you describe the accused could just say the he was not driving his car at the time. If the prosecution is a sham with all your friends saying you all saw this thing, then the defendant can bring all of his friends to say that he was at some other place. The benefit to having a cop on the scene is that the cop will get ID and positive identification. The other thing the cop has is expert judgment. If a cop sees unsafe lane movement and writes a ticket, his testimony in court carries more weight than the "it was not unsafe!" testimony of the accused. Keep in mind, getting all of your witnesses to court on the same day, after continuances and other delays, and getting them all to tell the same story to overcome the presumption of innocence is no small feat. All that to say, it's easier with police as witness. There are two mechanisms which could get you where you want to go. Private prosecution and citizen's arrest. Private prosecutions are a part of history but not strictly unavailable at the state level. You could write up some charging documents to see if you can get your target indicted. Citizen's arrest is interesting because the rules are fairly unclear unless governed by a specific statute. There are two necessary parts of citizens arrest and the first part gets the attention. The first part is the detention (arrest). The crimes for which a citizen can legally detain a suspect are likely defined by state statute. The second part is giving testimony about the witnessed crime. Let's assume that you see a felony happen and watch the perp walk into a gas station bathroom. You are prepared to arrest, do part number one, and then call the cops, to do part number two. But while you wait for the guy to come out of the bathroom a cop walks up. You explain the felony and the cop goes into the bathroom and arrests the guy. It's purely witness testimony that led to the arrest and the indictment (physical evidence - let's say there is none) and even the trial. You successfully get the guy indicted and when you show up to testify you tell the story as you witnessed it. Now the accused gets to take the stand. When he takes the stand he says, "it was the other guy." When asked, "what other guy?" He says, "I was in the bathroom and a guy ran in and went into the stall. Then a cop came in and arrested me." Reasonable doubt right there. How much more if it's a bunch of friends ratting on some lone driver? Police need evidence. Prosecutors need evidence. Judges need evidence. | united-states It is not required for a person to formally assert a fifth- or a first-amendment right when questioned by the police. One can simply be silent, refuse to answer any questions, without giving any reasons. But probably more effective and just as legal is to say "I won't answer any questions until I have talked with a lawyer. I want a lawyer, now." That is perhaps less likely than using the words "plead the fifth" to be assumed to be a confession of guilt, although some people and some police may take almost anything as a confession of guilt. By the way some of the points you distilled from the video (which I have not watched yet) are correct, some are half-truths, and some are quite incorrect. For example: The 5th amendment was not designed as a shelter for the guilty (despite it often being used as such). It was designed to help prevent you from unknowingly incriminating yourself. As a matter of history, this is quite incorrect. It arose historically out of a reaction to government procedures deemed oppressive. See https://law.stackexchange.com/a/63690/17500 for more detail. But helping people avoid unintentionally incriminating themselves is one of its major current functions. You can't talk your way out of getting arrested. Sometimes you can, but it is never safe to count on it. You can't know in advance if it will work, and more often than not it doesn't. Everything you tell the police can be used against you but not to help you. Not quite. If your statement is recorded, as is likely nowadays, the whole statement must be given to your lawyer and entered into evidence if you are eventually charged. (See Brady vs Maryland) Things said in your own favor may be discounted as self-serving, but the judge and jury will still hear them. But they can be very risky. | If someone testifying before congress refuses to respond to appropriate questions (questions within the scope of the congressional inquiry), that person can be cited for contempt of Congress. One way to avoid this is if the witness can invoke the Fifth Amendment privilege against self-incrimination. That says that a person may not be compelled to be a witness against himself (or herself) in a criminal case, and has been interpreted to mean that if testimony might in future be used against the witness in a criminal case, it cannot be required, even if the current occasion is not a criminal case. However, if a person has been granted immunity in a particular matter, no testimony can be used against the person in a criminal case on that matter, and so there is no Fifth Amendment privilege not to testify on that matter. This applies to testimony before a court as well as before Congress. The grant of immunity must be at least as comprehensive as the refusal to testify would have been, or the privilege remains. Therefore, if a person has been granted immunity on a subject, that person cannot refuse to testify before Congress by invoking the Fifth Amendment. If the person does refuse, s/he can be cited for contempt of Congress. However, the person can raise a claim that the inquiry was not a proper one, for example because the subject was not a proper one fo Congressional inquiry, or that the Committee was not properly authorized. If the court upholds such a claim, the person will not be convicted of contempt. Also, while Congress can issue a citation, the Justice Department is not required to prosecute the person, and may choose to let the issue drop. Or the court might not convict on some other ground. And of course Congress (or one house of it) has to vote to issue the citation, which it might decide not to do, for political reasons, or indeed for any reason at all. So a grant of immunity alone is not enough to say that testimony will be compelled, but it is a significant step towards such compulsion. Note that under Murphy v. Waterfront Comm'n, 378 U. S. 52 (1964), a state grant of immunity also bars Federal use of the compelled testimony or its fruits, and under Kastigar v. United States, 406 U.S. 441 (1972) a Federal grant of immunity bars state use of the compelled testimony or its fruits. See also This Justia essay on "the Power to Compel Testimony" which covers the whole subject with multiple case citations. | There are certain situations where the law may require you to provide some information -- particularly when you've been pulled over for a traffic violation -- but it is typically limited to basic identifying information. Beyond that, it is legally advantageous to refuse to answer questions. If you are doing so, though, you should explicitly invoke your Fifth Amendment right against self-incrimination, and your Sixth Amendment right to counsel. Invoking the Fifth prevents the police from using your refusal to answer as evidence, and invoking the Sixth requires the police to stop asking you questions. It may, however, be practically disadvantageous to refuse to answer questions, as there are cops who are just looking for a reason to act like a psychopath. | Basically, it is up to the court. The relevant law is the Police and Criminal Evidence Act (PACE). You don't give much in the way of specifics, but it sounds like you confessed something to the police at the side of the road immediately after the accident, and now wish to dispute that confession. If you are taken to court and the police want to introduce your confession as evidence then you (through your lawyer) can ask the court to rule it out. You may be able to do so on a number of grounds. Was the confession properly recorded at the time? Were you treated in an oppressive manner, such that you felt you had to say what the police wanted to hear. Did you think you might get more favourable treatment if you said what the police wanted? For instance, did you think you might be allowed to go home once they were satisfied? Were you given a proper rest, or were you in a mental state that might cause you to say things without understanding the consequences (it sounds like this would be your main argument, but consider the others too). [Edit] If you needed medical treatment that would also be relevant. Were you properly cautioned (that speech beginning "You do not have to say anything...") before the police asked you questions. If you think you may be facing criminal charges then you should get yourself a lawyer sooner rather than later. A lawyer will know all about this and be able to navigate the relevant legal processes on your behalf. A bit of background: back in the 1970s the police frequently attributed incriminating statements to suspects when arrested, such as "Its a fair cop, guv", or "Who ratted on us?". The rules in PACE were made to stop such "verballing". | Is it possible for a witness to backtrack and claim that their previous statements were wrong because they misremembered? ... Is the witness now allowed to say something along the lines: "Huh. That's odd. I clearly remember it differently. But it's such a small detail and it was so long ago..."? Yes. Or is it now considered a deliberate lie? A judge's assessment of a witness's credibility and reliability is much more nuanced. See "How is a judge to evaluate a witness's credibility?" |
What does Florida state law say regarding probate in real estate transactions? Does Florida state law require that an estate go into probate in the event the seller in a real estate transaction passes away prior to closing? | Does Florida state law require that an estate go into probate in the event the seller in a real estate transaction passes away prior to closing? Yes, if the seller is the owner of the property which is not in joint tenancy with right of survivorship or something similar (such as a transfer on death deed). A will is meaningless until it has been admitted to probate (which is a term that in the narrow sense means "validating the authenticity and validity of a will). Likewise, an adjudication that someone had no will cannot be made without a probate proceeding. There is no exception for a clear an uncontested will. "Will" means "probate" pretty much by definition. This doesn't mean, however, that the closing of the property has to waive until the probate proceeding including a full administration of the probate estate and closing of the probate estate is required. Often, a will can be admitted to probate and an executor can be appointed to manage the estate in a matter of a few weeks to a few months if there is no contest to either the validity of the will or the appointment of a particular person as an executor. Generally, once the executor is appointed in the probate case, the real estate closing can go forward, sometimes with some additional uncontested motion practice. Once the property is sold, the proceeds are put in an estate bank account pending further administration of the estate's assets and liabilities. Indeed, even if the will is contested, as long as a consensus can be reached among the interested parties regarding who the executor should be, the real estate closing could go forward despite the fact that the will is contested. Powers of attorney are sometimes granted to real estate agents to complete a transaction in the event of a seller's incapacity. But powers of attorney are void no later than the point at which the person with the power of attorney learns of the death. (The common law rule was that a power of attorney was void at the moment of death, even if no one involved in the transaction knew that fact yet.) The only person with authority to sign the deed to sell the property, if the property is titled in the name of the seller individually, with no co-owner (or with a tenant-in-common co-owner), is the probate estate's executor. The real estate contract is a claim in the probate estate, which the probate estate is required to carry out if it is able to do so. But a real estate contract, in and of itself, doesn't transfer the property by operation of law at closing. Until the probate estate is opened, the buyer doesn't even have anyone who can be sued to demand that the real estate contract be performed. | I am sorry for your loss, and that you have to deal with bills on top of everything else. The quick answer is yes, you might have to sell the house to pay your mother's bills. As you probably know, the estate includes both your mother's assets (cash, house, car, and so on) and her debts. In general, to "settle the estate," the executor must pay all debts before she gives away any of the assets. Legal Aid of West Virginia has a helpful website about West Virginia probate law. Here is what it says about this issue: If you can’t pay all of your family member’s creditors from the person’s available money, you must sell off the family member’s property and pay the creditors in the order listed in W. Va. Code § 44-2-21; W. Va. Code §§ 44-1-18 to -20. You may have to sell the family member’s land or home in order to pay creditors. W. Va. Code § 44-8-7. Added after comments Under WV law, it does not matter that you were bequeathed your mother’s house. The law gives debtors priority over heirs. This means debtors are paid before any heir. Heirs are “paid” from whatever is left in the estate after the debts are paid. So if the estate is underwater, if it owes more than it is worth, there will be nothing left in the estate to give to the heirs. As executor, your job is to carry out West Virginia law. The nuts and bolts of what happens if you refuse to the sell the house depends on WV law. You might be able to find the details by searching on line, but your best bet is to probably to talk to an attorney who specializes in WV probate law. An attorney will know both the law on the books, and how that law is implemented. They will be able to advise you on what options you really have, and the costs and benefits of those options. If the estate is underwater, you could buy the house from the estate. If you do that, you will not be liable for any of your mother’s debts; those are owed by the estate. Depending on how the sale is handled, this may be your (financially) best option. (Depending on whether the price covers the debt, and on what other heirs are bequeathed, the court might worry about you selling yourself the house at a discount price, and thus look at the sale very carefully.) | The simple answer is, get a lawyer and explain your case, and pay him to solve the problem (or tell you that it's hopeless). The two main questions would be whether the appraiser have any duty to you, and whether his action was within the scope of what he is supposed to do. If you hired the appraiser, he has a duty to you. I will assume it was you that hired the appraiser (if it was the bank, that's a different matter). Then the question is whether his action or non-action is within the scope of the job. If the place is infested with termites, that is probably irrelevant because an appraiser is not a termite inspector. On the other hand, if he failed to measure the structure, or erred substantially in the measurement, that kind of negligence could be legally actionable. The seller (not the appraiser) is required to "disclose", so it's not obvious that there is any thing that an appraiser could disclose that relates to a map. | Of course not. If the owner/tenant needed to be home I could rent a house in my name, and then never occupy it (my associates live there) the cops could never enter. Wilson v. Arkansas, 514 U.S. 927 (1995) - Cops executing a warrant need to knock. If no one answers they must wait a reasonable time for an occupant to let them in. It's the knock and announce rule. By implication it might lend authority to what is an obvious answer. | What does this paragraph mean? Line by line. I give my Residuary Estate This is a gift, effective when the person writing the Will dies, of everything that is left over after all debts and taxes are paid and after any other gifts already in the Will (e.g. leaving a car or a house or a Monet to someone in particular) have been given. to the said [Full Name] absolutely I'm going give [Full Name] a name so that it is easier to follow this explanation. [Full Name]'s name for purposes of this answer is "Luna". This says to give all that stuff to Luna when the person who wrote the Will dies, if Luna is still alive for whatever the required amount of time is after the person who wrote the Will dies. The required survival time period is either in the boilerplate provisions of the Will, or in the relevant statute if the Will is silent on the question. The Will says "absolutely" because historically, someone who received gifts of property in deed or wills in England only got to keep it for their lifetime, unless it clearly specified otherwise, after which someone else would get it. But in this case, if Luna survives this long, Luna gets all of this stuff with no strings attached. and if [Name] shall fail to obtain a vested interest leaving issue who survive me then such issue shall take by substitution If Luna dies before the person who wrote the Will does, or doesn't stay alive for the required number of days afterwards, then Luna isn't entitled to this stuff. Luna's descendants get it instead (i.e. Luna's descendants "take by substitution" what Luna would have gotten if Luna had lived, instead of Luna's probate estate getting the stuff). and if there shall be more than one of such issue they shall take in equal shares per stirpes but so that no issue shall take whose parent is alive and so capable of taking. If Luna predeceases and has exactly one living descendant who is alive when the person who wrote the Will dies, and that living descendant lives the required number of days after the person who wrote the Will dies, then the sole living descendant of Luna gets all of the stuff that is left over when the person who wrote the Will dies. If Luna has more than one living descendant, the stuff that is left over when the person who wrote the Will dies, then Luna's descendants gets broken up the way described below, which is called per stirpes: Create one share for each child of Luna who is alive and survives Luna by the required amount of time. If Luna has only one living child, that child gets everything even if Luna's child has children of their own. Create one share for each child of Luna who didn't live for long enough after the person who wrote the Will's death, if the predeceased child has descendants who are alive and remain alive after the person who wrote the Will dies by the required amount of time. This share is then broken up into one sub-share for each child of the predeceased child who is alive when the person who wrote the Will dies and is still alive after the person who wrote the Will dies by the required amount of time, and one sub-share for each predeceased child of the predeceased child who has living descendants who remain alive for the requisite number of days. Continue this process until 100% of the the residuary estate has been assigned to someone and give them their share of it once the estate is settled. If someone lives past the minimum number of days to outlive the person who wrote the Will, and then dies, that person's share goes that person's probate estate. For visual learners, a per stirpes distributions of assets looks like this: A per stirpes distribution to descendants is the plain vanilla ordinary way to giving stuff to the descendants of a dead person when you don't know in advance who will outlive you. What if Luna predeceases with no living descendants? Usually, this paragraph of a Will will be followed by another paragraph called the "ultimate contingent beneficiary" which says who gets the stuff that's left over in the residuary estate if Luna predeceases the person who wrote the Will and has no living descendants. Often, the ultimate contingent beneficiary will be one or more distant relatives, a list of friends, or a charity. If there is no ultimately contingent beneficiary in the Will, but Luna and all of Luna's descendants predecease the person who wrote the Will, then it goes to the next of kin (a.k.a. "heirs at law") of the person who wrote the Will, if there are any relatives of the person who wrote the Will who are close enough to qualify to inherit under English inheritances law. If there is no one closely enough related to the person who wrote the Will to qualify under English inheritance law, then the stuff "escheats" (i.e. is inherited by default) by the King (or Queen) of England, as the case may be. There are some circumstances when the Will can be ignored. Everything above explains what this language in the Will means. This isn't always what happens, however. There are several exceptions to the general rule that property goes to the people that the Will says it goes to. I won't list them all here, but it is important when a Will is being written to understand that this is the case. For example, if the person who wrote the Will leaves nothing in the Will to their spouse of thirty years as of the death of the person who wrote the Will, who has no assets of their own, then the Court will partially ignore what the Will says and give some of the residuary estate to the surviving spouse. Also, the Will only controls assets that are in the "probate estate". Some assets pass at death in what are called "non-probate transfers" that are not controlled by what the Will says. And, finally, of course, if the Will was written when the person signing the Will was of unsound mind, the Will can be invalidated in a "Will contest" in the appropriate court if the person contesting the Will's validity can prove that the person signing it was of unsound mind at the time. This is mediocre legal writing This paragraph gets the job done, but it is not very well written by modern legal Will drafting standards. It is adequate and probably meets the standard of care for a lawyer who hasn't committed malpractice. Lawyers in England have been writing paragraphs like this one for three or four hundred years. But it is not "best practices" legal writing in a Will. Good modern legal drafting for a Will would be much easier for a non-lawyer to understand, in addition to being clear and unambiguous. | New Jersey is not a community property state, but it is an equitable distribution state. This means that in a divorce marital property is divided, not automatically 50-50, but in a way that seems financially fair to the supervising judge, or according to an agreement entered into by both spouses. This also means that the state considers a car bought during the course of the marriage "marital property". There are also special rules for property bought before May 28 1980, which do not seem to apply in the case in the question. However, "marital property" mostly applies when a marriage ends which the question says is not in view here. NJ does allow for a car to be titled to only one, or to both. A title with both names may read "John Doe OR Mary Doe" or "John Doe AND Mary Doe". In the AND case both spouses must sign to sell or borrow against the car, in the OR case either signature will do. If only one name is on the title, that person must sign to sell or borrow. If it comes down to a dispute, the person whose name is on the title can decide where it is to be garaged, and who has permission to drive it. If the "sporty" car is in the name of both parents, either could move it to some other location, and either could move it back. Going back and forth could easily get ugly. If both names are on the 'sporty' car's title with an OR, the husband could sell it without consulting the wife. if there is an AND he would need her to agree. If the older car is in the husband's name alone, he could deny the wife or the son the right to drive it. The wife could, of course, buy a different older (used) car and allow the son to use it. Obviously it would be a good idea if the husband and wife came to a voluntary agreement about all this, but no law requires them to do so. | In general, the express terms of the lease signed supersede all prior negotiations of the parties, except to the extent that the particular language in question in the lease is ambiguous. This is called the parol evidence rule (which is the law in all U.S. jurisdictions although it has been expressly rejected in Israel). The parol evidence rule expressly makes a written agreement supersede a verbal agreement, rather than making them equally valid. Also, even if both agreements had been written, generally speaking, the last and final version of the agreement will supersede earlier versions of the agreement. The best defense would be along the lines of fraud-in-factum or fraudulent inducement, i.e. that this term was slipped into the final draft in a manner expressly intended to mislead the signing party about what was being signed. I've won one case where this happened (where there was extensive email correspondence between business lawyers regarding the changes that would be made in each draft and there the version signed did not correspond to the last version signed electronically in a very long document on paper and there were other indicia of fraud), but by far the more common outcome is to bind the party signing the document (especially in a commercial context) and to consider failing to carefully read all terms of the final draft to be negligent on the part of the party signing the contract. Arguably, there might also be a malpractice claim against the lawyer for the tenant for missing this change in a material term before the contract was signed. | According to Nolo, which is usually a good source of legal information, yes, an HOA generally does have the power to place a lien on your property if you do not pay your HOA dues, and to foreclose the lien (force sale) if it is still not paid. They have a specific page for Nevada explaining procedures and restrictions. You'll also have to read your covenant (CC&R) to see exactly what you agreed to when you bought the property, but Nolo seems to suggest that whatever's in there is likely to be enforceable. In particular, the covenant may state that the HOA's lien can include penalties and collection costs, and the law seems to allow that. There's a note on the Nolo Nevada page that an HOA may not foreclose a lien based only on a fine or penalty, so it's not clear what would happen if you paid only the outstanding dues but not the other charges. Personally, it seems to me excessive to sue over $400. Being on bad terms with your HOA seems likely to cause trouble down the road. Also, if it were me, I'd want to consult a lawyer to get a sense of the chances of winning. The fact that you were out of state and may have missed communications from the HOA or bank seems like it may weaken your case; they might argue that you had a responsibility to check your bank statements and have your mail forwarded. If you lose in court, you might be liable for the court costs in addition to what you currently owe. |
Are times zones, (i.e. a geo-spatial frame of reference) considered in age based regulations? Bob was born in British Columbia (GMT-7) on March 7th at 11 p.m. local time. Alice was born the next day, March 8th, in Nova Scotia (GMT-3) at 1 a.m. local time, which is 2 hours before Bob was born, due to the time zone difference. Bob and Alice are in Vancouver (GMT-7). It is Bob's 19th birthday. Bob is of legal drinking age according to Canadian law and the birthdate listed on his driver's license, Alice is not. They both have a glass of wine with dinner. The legality of drinking is based on age, so could Alice be arrested for underage drinking based on the birth date listed in her driver's license even though she is technically "older" than Bob based on a geo-spatial frame of reference? Or would the law consider her to be of legal age based on the time zone of her birth, and the exact time of day she drew her first breath when compared to local time? | british-columbia I am not aware of any judicial consideration of this issue. The Liquor Control and Licensing Act, s. 78(1) says: A minor must not, except as provided under this Act or unless the minor does so with other lawful excuse, ... consume liquor. (One of those exceptions are when the alcohol is supplied by the minor's parents, spouse or guardian in a residence for consumption in the residence. There are other exceptions, too. But I'll assume you're asking about a circumstance where no exception applies.) The Liquor Control and Licensing Act defines a "minor" to be a person under the age of majority established by the Age of Majority Act, which is age 19 today. The Liquor Control and Licensing Act, s. 57 makes it an offence to contravene s. 78(1). The Interpretation Act, s. 25.1 states that "A person reaches a particular age expressed in years at the beginning of the relevant anniversary of the person's birth date." The Interpretation Act also clarifies that the reference to time "is a reference to Pacific Standard Time" (or Pacific Daylight Saving Time, when it is in effect). Thus, a person is a minor until "the beginning [in Pacific time] of the relevant anniversary of the person's birth date." It is most clear in relation to the identification requirements when selling to a minor, but the Regulations (s. 158) refer to the date of birth as displayed on the person's identification card. This all suggests that when consuming alcohol in the greater Vancouver area, a person just about to reach the age of majority must wait until the date in the Pacific time zone is that which is displayed on their identification. Or barring any identification, until the date in the Pacific time zone is the date that is the person's birth date. | Bob has no defense Speeding in western-australia, as it is throughout australia, is a strict liability offense. That means that intention to or knowledge that you are breaking the law is not required. Don’t know the limit? Doesn’t matter, you are still legally obliged to comply. However, all the way up the chain, from the police officer, through the administrative arm to the judge, each person has discretion to waive the infringement notice. Basically, they can do that if they don’t think it’s “fair” on Bob in the circumstances. Given that Bob managed to reach 40+km/h within 20m of a more than 90 degree corner I think the infringement notice is very fair. Negligent Driving is possibly the more appropriate offense. However, it’s possible to imagine circumstances where waiving the infringement notice is fair. For example, if a speed limit sign has been removed or completely obscured by foliage or a parked vehicle and Bob could show he was not familiar with the area. The question on Alice is, from above, moot. | canada In Canada, there are the separate offences of: sexual assault (premised on lack of consent, no matter by what means consent is lacking; R. v. G.F., 2021 SCC 20) and administering a stupefying substance. If someone were to use a "substance such as everyday alcohol" (I would reject the premise that this is "benign") for the purpose of facilitating sexual assault, this would be an offence under s. 246 of the Criminal Code. Section 246 makes it an offence for a person, "with intent to enable or assist himself or another person to commit an indictable offence" to administer or cause any person to take a "stupefying or overpowering drug, matter, or thing." The Court of Appeal for Ontario has accepted that the element of administering a stupefying thing could be established by oversupply of alcohol. They have said that alcohol is a "stupefying substance" (R. v. Vant, 2015 ONCA 481) and can support a conviction under s. 246. "Date rape" has no legal significance and even criminologically, misframes the circumstances in which people experience sexual assualt. Further, your premise that intimate partner sexual assault "usually happens when someone uses narcotics to drug another into an unconscious state" is not supported by the evidence. While this is a criminological point, rather than a legal point, it is important context for understanding such crimes. This 2005 study estimated that 4.6% of intimate partner sexual assaults were facilitated by surreptitious drug use. These two fact sheets describe the variety of circumstances, completely unrelated to incapacitation by drugs, in which people experience intimate partner sexual assault/violence: Fredericton Sexual Assault Crisis Centre Info Sheet; Centre for Research & Education on Violence Against Women & Children Backgrounder on Intimate Partner Sexual Violence. | This is known as a retroactive or ex post facto law. Such laws are explicitly forbidden by the US Constitution (Wikipedia reference), and are generally frowned on in jurisdictions where the rule of law applies, partly because it is difficult to prove criminal intent when your action was not at the time criminal. | In principle, the data subject's right to access involves a copy of all personal data the controller holds on them. There are no time limits by default. Of course, the controller can ask a data subject to clarify their request, e.g. to focus on a particular time frame. There is an implied time limit though: personal data may only be processed/stored for as long as the data is necessary to achieve the purposes for which it was collected. Afterwards, it must be deleted. A controller with good data management will be able to limit their effort by having as short retention periods as possible for their different records. Furthermore, a lot of data is not personal data, or falls out of scope of the GDPR because it is not processed with automated means or forms part of a filing system. For example, if thousands of old invoices were archived in paper form in boxes that are only sorted by year, there might be an argument that this isn't a filing system in the sense of the GDPR and that a DSAR would not have to involve looking through all the archived invoices (compare also Art 11). In your scenario, there is a clear retention period of six years. You are asking for records about how that data might have been used further in the past. To the degree that such data is actually available, that could reasonably be personal data and should be included in a response to a DSAR. E.g. they might have information like this: “File #1234 was included in a data set that was sold to EvilCorp in 2007. The entries in File #1234 that are older than 2014 have been purged, so we do not know which entries were included in the data set. The current name on File #1234 is Dave.” This information about the sale would be personal data because it relates to you, and you are identifiable. Of course, the controller might not be set up to perform this search unless specifically asked. However, more unspecific information might not be personal data. For example: “About 70% of our files were included in a data set that was sold to EvilCorp in 2007. We no longer have records indicating whether your file was included.” Since there is no link between the sale and your personal data, I don't think it would have to be included in a DSAR response. The primary reason why you should be told about sales of personal data is that per Art 15(1)(c), you should be informed about “the recipients or categories of recipient to whom the personal data have been or will be disclosed” in a DSAR response. So when making a data subject access request, it could make sense to explicitly referencing this paragraph. So you would be interested in receiving a copy of your personal data as per Art 15 GDPR, and in particular any available information per Art 15(1)(c) GDPR about the recipients or categories of recipients to whom your personal data has been or may have been disclosed in the past. Quite likely the response will be underwhelming, e.g. by just giving a broad category such as “potential creditors who are contractually obligated to use the data only in accordance with our policies”. Whether such responses are compliant (I don't necessarily think so) will not be clear until there's a good precedent, and that would require that someone sorts this out in court. | The place of birth on the birth certificate is where the child was actually born. Indeed, usually it will be more specific than city and state or province and will also identify a hospital or residence or other place where the birth happened. So, for example, if a child is born to U.S. diplomats in Paris, France (in or out of the embassy grounds), the birth certificate will say that the child was born in Paris, France at Charles de Gaulle Hospital. But, that child will still be a U.S. citizen in all likelihood, because that child's mother, and/or married father or unmarried father who acknowledges paternity, is a U.S. citizen (in all likelihood) pursuant to 8 U.S.C. §§ 1401 and 1409. The child may or may not be a French dual citizen depending upon the citizenship law of France. In the case of a French diplomat who has a child born physically in Washington D.C. (inside or outside the French embassy) the birth certificate will likewise state that the child was born in Washington D.C. The French diplomat's child, however, will not be a U.S. citizen since Section 1 of the 14th Amendment to the U.S. Constitution's first sentence (which is also found in 8 U.S.C. § 1401(a)) states: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. But a French diplomat's child is not "subject to the jurisdiction" of the United States, so the French diplomat's child does not gain U.S. citizenship at birth (assuming for simplicity's sake that both of the child's parents are French citizens and are not U.S. citizens) despite the fact that the child was born in the United States. | canada It depends on what the mens rea requirement is. Mens rea if not specified in a criminal offence In Canada, if this is a criminal offence, and a mens rea is not specified in the Criminal Code, the presumption is that the mens rea would be satisfied by recklessness, knowledge, willful blindness, or intention (Pappajohn v. The Queen, [1980] 2 SCR 120; R. v. Briscoe, 2010 SCC 13). The prosecution would have to show that Alice was at least subjectively aware of the risk that she was doing XYZ during the prohibited hours and proceeded nonetheless (this is recklessness; Sansregret v. The Queen, [1985] 1 SCR 570 ). Based on the facts as you've presented in the hypothetical, you may have ruled out the possibility that Alice was reckless. Although, depending on the time of year, it may be that the sun sets around 9pm, which may present some awareness of the risk that you have not accounted for in your hypothetical. Mens rea if specified If the text of the statute does specify a mens rea then that is what the prosecution needs to show. For example, if one is prohibited from doing XYZ while "knowing" that it is after 9pm, then the prosecution will have to demonstrate actual subjective knowledge of the time, or wilful blindness (which Canadian law takes to impute knowledge: Briscoe). Additional burdens to make use of some mistakes of fact Some offences put an even higher burden on the accused in order to rely on a mistake of fact. In sexual offences where the age of the complainant is relevant (e.g. that they 14 or younger, or 16 or younger, or 18 or younger), the accused cannot make out a mistake-of-age defence without showing they took reasonable steps to ascertain the age (see Criminal Code, s. 150.1).1 Presumptive mens rea for regulatory offences is much lower: strict liability, subject to a due-diligence defence However, if this were a public-welfare/regulatory offence, like a provincial traffic law, or a licensing restriction on an aviation licence, or municipal by-law, there is no mens rea presumption. Rather, public-welfare/regulatory offences prima facie fall into the category of strict liability offences, subject only to a due-diligence defence (R. v. Sault Ste. Marie, [1978] 2 SCR 1299). Alice would have to show that she had a "reasonable belief in facts which, if true, would have rendered the act innocent". What it means to have a "reasonable belief in facts" is very fact-specific.2 Alice has to hold the belief herself, and the trier of fact must accept that a reasonable person would also have held that belief. Just as in the case for recklessness, I can imagine that the timing of sunset might pose a problem for a due-diligence defence in your particular example. Absolute liability If the penalties for the offence do not include the risk of imprisonment, the offence can even be declared to be an absolute liability offence, in which due diligence is not even a defence (Re B.C. Motor Vehicle Act, [1985] 2 SCR 486). 1. For example, simply relying on a complainant's "language and statements indicating that she could be 14 years of age or older did not constitute taking reasonable steps or all reasonable steps to ascertain her true age in all the circumstances, especially after being warned by her mother to stop all contact or she would call the police and stating that the complainant was way too young for him" (R. v. Dragos, 2012 ONCA 538). 2. For example, for the sale of alcohol, "when the individual clearly appears to be underage, ... a duly diligent permittee would require at least two more pieces of ID confirming that the person was not a minor, question the individual about the ID, then decide if it is reasonable to serve the individual alcohol versus the youthful appearance of the individual" (Citynski Hotels Ltd. v. Saskatchewan, 2003 SKQB 314). | Can the Secretary of State exempt people over 75 requiring a TV licence? Yes. s.363(6) introduces the power to exempt those listed at (a) to (d) by way of Regulations. s.6, paragraph 1 of the Communications (Television Licensing) Regulations 2004 states: No fee shall be payable for a TV licence of a type referred to in the first or second entry in column 1 of the table in Schedule 1 where— (a) the licence is issued to a person aged 75 years or more or to a person who will attain that age in the calendar month in which the licence is issued; and (b) the single place, vehicle, vessel or caravan specified in the licence is the sole or main residence of that person. https://www.legislation.gov.uk/uksi/2004/692/regulation/6?timeline=false The first and second entries in column 1 at Schedule 1 refer to black and white or colour TVs in a domestic setting or business purposes. https://www.legislation.gov.uk/uksi/2004/692/schedule/1?timeline=false |
U.S. Law: Why would evidence be viewed in the light most favorable to prosecution? Firstly, I'm requesting that persons focus on the question in the title of this post. Please do focus on that. I think for a rational trier of fact to view the evidence in the light most favorable to prosecution means that judicial bias has occurred: The judge has picked a party of which it has become partial to, which shows that impartiality has been broken. Could someone please explain the rationale for why it would be in the light most favorable to prosecution? If the answer to my question is along the lines of the "...reviewing court will presume the matter was resolved in favor of the prosecution...," then why would the reviewing court presume that the matter was resolved in favor of the prosecution? Here are some citations with sources in relation to this issue: Viewing the evidence in the light most favorable to the prosecution means that when conflicting inferences may be drawn from the evidence, the reviewing court will presume the matter was resolved in favor of the prosecution. Assessing whether any rational trier of the facts could find the essential elements proven beyond a reasonable doubt is calculated to protect against those rare instances where a jury, though properly instructed, has done so. State v. Clay, 187 Ohio App. 3d 633, 2010-Ohio-2720, ¶69-71, as per this website. The federal due process standard for sufficiency is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319 (emphasis in original). website of information | You are quoting standards that are applicable during an appeal. So in this case, the defendant was brought to trial, was found guilty by a jury, and is now appealing that conviction. During that initial trial, the evidence was supposed to have been weighed neutrally. In an appeal, the appellate court is not attempting to re-litigate the entirety of the case. That would be costly and slow in addition to burdensome on witnesses that might have to be called again to testify. Instead, it defers to the trial court for things like the determination of facts. The standards you quote show that an appellate court is only going to overturn a lower court's verdict as insufficient if the lower court's ruling is manifestly unjust. The prosecution and the defense presented evidence on a particular element of the crime at trial. The jury determined that the prosecution met its burden, and proved the element beyond a reasonable doubt. The appeals court is not going to substitute its judgement for that of the jury particularly when the jury had the opportunity to assess the credibility of different witnesses that may not be possible from a simple text-based transcript. If the trial court convicted and the appeals court determines that the conviction was reasonable if the evidence was viewed from the standpoint most favorable to the prosecution, then the sufficiency standard would be met and the appeal would be denied. The appeals court would only overturn the verdict as insufficient if no reasonable juror could possibly have concluded that the state met its burden of proof given the evidence presented. | The standard of proof for civil cases in Texas is generally "preponderance of evidence". See in re Steven Lipsky for some discussion. The applicable evidentiary standard is generally determined by the nature of the case or particular claim. Criminal cases require proof beyond a reasonable doubt, a near certainty, whereas civil cases typically apply the preponderance-of-the-evidence standard, that is, a fact-finder’s determination that the plaintiff’s version of the events is more likely than not true. Some civil claims, including some defamation claims, elevate the evidentiary standard to require proof by clear- and-convincing evidence. See Sec. 171.208 of SB8. There is no specific statutory specification of the evidentiary standard, therefore the standard is "preponderance of evidence" (compare Lipsky: the issue is that the statute refers to "clear and specific evidence" which is not defines in the statute or elsewhere, hence that lawsuit). | Law is more like sport than mathematics You don’t know how it will turn out until you play the game. If a case goes to trial it’s because at both sides believe they can win. Both sides probably have good reasons for their belief. At least one of them is wrong. | Appeal proofing decisions is a common practice of trial judges (and even intermediate appellate court judges and state supreme court judges) well known to practitioners and even discussed by law professors in class at times, but I'd have a hard time coming up with a reference where it was discussed. There is probably a law review article that discusses the practice somewhere. It also comes in several versions. One is to make copious findings of fact (especially on credibility) that are hard to reverse on appeal. A judicial finding that someone had an intent to defraud another party based upon his demeanor when he testified about that issue can overcome all sorts of technical objections to a claim in a lawsuit on a more strict liability basis like breach of contract. Another is to give a "soon to lose" party everything he wants procedurally, even when he isn't entitled to it so he can't appeal on procedural grounds. For example, a court might admit otherwise inadmissible evidence over the objection of the other party and then rule against the party seeking to admit that evidence anyway on the merits. Lawyers often assume that this is happening when a judge starts making blatantly incorrect rulings on procedural issues against them repeatedly in an otherwise strong case in a bench trial. A third is to provide an alternative holding that reaches the same conclusion in case for a different legal reason in the event that an appellate court does not agree with the primary holding. A fourth (mostly limited to appellate contexts) is to decide a case on grounds that make the case uninteresting to review on further appeal (e.g. finding that a factual conclusion is supported by evidence in the record, or that an issue wasn't preserved adequately in a trial court) or beyond the jurisdiction of other courts (e.g. deciding a case based upon state law so that the U.S. Supreme Court won't review it). | If it was for a criminal case, the jury would have to decide if they believed the person who claimed he/she cracked the code. Really, any evidence is interpreted by the jury if it is regarding facts. 1) An issue of fact, not law. A question of fact is resolved by a trier of fact, i.e. a jury or, at a bench trial, a judge, weighing the strength of evidence and credibility of witnesses. Conversely, a question of law is always resolved by a judge. https://www.law.cornell.edu/wex/question_of_fact | You'd have to specify the cases you want. All court transcripts are a matter of public record, though a copy may cost you a fee from the court clerk's office to recieve. It should be pointed out that not all cases got to an evidentiary stage to actually evaluate on the record any evidence. A vast majority were decided on pre-evidentiary rules such as standing or laches (timeliness) and not all cases that were able induced evidence debunked the evidence. Any appellent case would also not induce evidence as all appeals cases are strictly matter of law rather than matter of fact (evidence), so those cases would be asking a higher court to double check non-evidentiary decisions. The fact that the party that brought the suit does not have standing to bring the suit OR that the party that brought the suit brought it too late for the courts to proceed on the matter does not debunk evidence that the fraud happened in the eyes of the law... it simply means the questions of fact were never addressed at all | Offering up evidence that another person committed a crime is a standard and accepted, although rare, criminal defense strategy. It is mostly not used very much because most crimes for which defendants are charged were not committed by somebody else, and because most innocent defendants lack the investigative and economic resources to identify enough information about another potential suspect to present such a case credibly. The defense would have to articulate to the judge that the reason for offering up evidence about Z is to support Y's theory of the case that Z and not Y committed the crime, in order to overcome a relevance objection. But, the defendant had wide latitude to do so in order to create a reasonable doubt that the defendant committed the crime. In most circumstances, it would be a reversible abuse of discretion to prevent the defendant from introducing evidence to support a theory of this kind. A similar strategy, for example, was recently used in a preliminary hearing in a case involving a high profile murder in Colorado where a man stands accused to murdering his wife (the man is Barry Morphew) has developed a theory that his wife was murdered by someone else based in part, for example, on the evidence of unidentified DNA near the murder scene allegedly associated with previous crimes in DNA databases. | The appellate court gets the trial transcript which includes all the testimony (and exhibits or descriptions/photos of them) and the trial court's rulings. Also, each side presents an appeal brief, which will generally include a statement of facts, pointing out ones it thinks favorable to its views. In civil cases a jury may be asked/instructed to give yes/no answers to a series of questions, but this is not normal in criminal cases. An appellate court can (and sometimes does) rule that there was not sufficient evidence to permit any reasonable jury to convict; to that extent it can rule on questions of fact. But, as the comment by ohwilleke mentions, an appellate court does not hear new evidence. It can overturn the conviction and send the case back for a new trial, and in such a new trial additional evidence may be introduce at the trial court level. |
Do I have to name all editors when reusing text from Wikipedia and SE? Wikipedia writes that You should not cite any particular author or authors for a Wikipedia article, in general. Wikipedia is collaboratively written. However, if you do need to find the list of authors of a particular article, you can check the Page history. Authors are listed only by IP address or chosen username; you normally cannot verify and often cannot even guess at their identities. Is this not in contradiction with the CC-BY-SA 3.0 license under which individual authors provide content, though? You must attribute the work in the manner specified by the author or licensor From what I understand, when I write text on Wikipedia I can specify a name under which I would like to be credited and a canonical URI for my work. Is a link to Wikipedia sufficient to fulfil these obligations, even if the username of the editor is hidden in the page history behind several clicks? (And, also, the page history can be deleted?) For another less contrived example about the "link-only attribution" being deleted: suppose I find an answer in a comment on Stack Exchange. SE content is also licensed under the same CC-BY-SA-3.0 license (or at least recent content). As good practice demands, I copy that text into a Community Wiki answer, and use a permalink to the comment as my only means of attribution. Later, the comment gets flagged as "no longer necessary" and deleted, so my perfectly legal means of attribution disappears forever. Who is at fault here? | Wikipedia is the Licensor who are granting you the license, thus in the text you quoted: You must attribute the work in the manner specified by the author or licensor the manner specified by Wikipedia in the link you gave is the way you must attribute the work. When a person contributes content to a Wikimedia project, they agree to license it under the CC-BY-SA-3.0 license, but they also agree to be attributed "in any of the following fashions... i. [through] hyperlink (where possible) or URL to the article to which you contributed (since each article has a history page that lists all authors and editors)" (see Wikimedia Foundation, "Policy:Terms of Use — 7. Licensing of Content"). See section 1(f) of the License used for the definition of the Licensor | You have a false premise: "it offers the same conditions", and "MIT license is functionally equivalent to CC-BY". These premises are not true. CC-BY: applies to more than just software; it applies to artistic or literary work, databases, other material disclaims endorsement explicitly withholds moral rights explicitly does not license patent rights (MIT license gives anyone who obtains a copy of the software the right to use it, a patent right) prescribes the acceptable forms of attribution Those are just some of the differences. | Names of people, institutions, and events are not protected by copyright. Things that have occurred at events like math tournaments are facts, and may be recounted, in your own words, with no fear of infringing any copyright. Facts are never protected by copyright, although a particular description of facts could be, and so could a particular selection and arrangement of facts. Specific math techniques and their names are not protected either, and may be described without infringing copyright. The items you mention in the question are: video game / movie references and names No copyright issue here. common integration bee problems No copyright issue here. names of a university / math competition organizers No copyright issue here. integration techniques and formulas No copyright issue here, unless you copy an extensive description of a technique without rewriting it in your mown words.. using someone's Overleaf Latex package to format the book This depends on the license for the package, but there is not likely to be an issue. In short I think you are worrying over issues that are in fact non-issues. | A copyright notice like that could mean the authors are claiming copyright in different portions of the work, or claiming a joint copyright. With the former, standard copyright law applies with respect to each part, so I'm going to examine the joint copyright aspect. Broadly speaking, joint works tend to be an unclear and internationally inconsistent area of copyright law and you haven't specified jurisdiction. Since this is an English language site and the US and UK are polar opposites on most of these issues, those will be the jurisdictions I examine. US Definition: To qualify as a joint work, each author's individual contribution must be inseparable or interdependent, and the authors must intend to be joint authors (17 U.S.C. s 101, Childress v. Taylor, Erickson v. Trinity Theatre, Inc.). Rights of use: Joint authors can independently exploit and license a work without consent of other co-authors, but have a duty to account profits to co-authors (House Report No. 94-1476 (1976), Goodman v. Lee, Community for Creative Non-Violence v. Reid, etc.). UK Definition: To qualify as a joint work, each author's individual contribution must not be distinct, they must work towards a common design, but no specific intention of joint authorship is required (Copyright, Designs and Patents Act 1988, Art. 10(1), an 11-factor test was articulated in Martin v. Kogan para. 53 by the E&W Court of Appeal). Rights of use: Joint authors must seek consent of the co-authors in order to exploit and licence a work (Cescinsky v. George Routledge & Sons, Ltd., Hodgens v. Beckingham). For further information, see this excellent paper by Elena Cooper comparing how US and UK law diverged on this point. | What licence should I display in the footer of my website? None unless you want people to copy and reuse the content. The content (except for mere facts) will be protected by copyright regardless. When you expect people to want to copy and reuse it, it makes sense to tell them in advance under what conditions they can do it (instead of being bothered by their questions). This is what displaying a licence is for. If you were a visual designer then a licence would make sense as visuals are likely to be wanted to be copied and used. But a CV, list of projects and comments from customers are probably not likely to be wanted for reuse and distribution, though it is ultimately for you to decide. If you think someone will want to copy and further distribute your content, you'll need to figure out under what conditions you want to allow it, and then search for a licence that fits. If none found, just create your own. | Why would the method by which you transfer a item that has a copyright impact the copyright? You buy a new book at a new bookstore, a used book at a used bookstore, a used book at a garage sale, someone gives you a book, you find a book on the sidewalk, you steal a book from a store, you buy and download an ebook, you give an ebook to someone on a USB stick, you download an ebook via Bittorrent. The author's copyright - as well as the design copyright, and any book company trademarks - does not change in any of those scenarios. Copyright around most of the world - read Berne Convention (Wikipedia) - says that copyright exists at the moment of creation of a work, i.e. a work that you say is "100% yours". This has nothing to do with the way the work may be transmitted or stolen or downloaded. A work in the public domain can still be copyrighted in terms of cover artwork and design, annotations, etc. Read Welcome to the Public Domain - Stanford Copyright and Fair Use Center You can say someone "owns" a book in the sense that they might have paid for it or it is personal property and one could justifiably call it theft if someone took it from them, but "owning" the physical or electronic copy in any sense doesn't mean you own the copyright. Read the copyright notice on a book or ebook; you get a license to read it, not ownership of it. Read What's the difference between Copyright and Licensing? - Open Source Stack Exchange. Sure, the TOS of a network can specify the ownership/licensing status of the files shared on such network. They will almost all explicitly say not to upload or share anything that will violate the copyright of that work. The TOS of a network could possibly say that anything that is uploaded is automatically licensed to them. A network could demand the reassignment of copyright upon upload, but that would have to be outlined in the TOS and is not simple. See Copyright Ownership and Transfers FAQs - Stanford Copyright and Fair Use Center. | how would this differ between say ArXiv which is open access, and a publication that is pay-only, like Elsevier or Nature? It wouldn't. But if the equation is the creation of the author of some publication, as in the author is expressing some unique mathematical expression, obviously the publication should be referenced. But is referencing enough? Are there additional rights one must obtain from the publication and/or author in order to show this content? Laws of nature, including purported laws of nature, are not protected by copyright. So, usually, key equations in an academic paper aren't protected by copyright law. Referencing the work is important as a matter of academic ethics, but is legally irrelevant. Copying of exposition by the author beyond laws of nature is permitted as fair use if it is limited to quotations necessary for academic discussion and criticism, but copying of an entire work would not be permissible fair use in most cases and would constitute copyright infringement. Of course, there is a large gray area between those extremes. | Editing is protected speech under the First Amendment. The government may not require any license to perform such services, though an author could impose whatever credentialing requirements she chooses. If you have created a business to provide those services, that business may need to be registered with/licensed to business in the state generally, but again, it would not require any special licesnse to perform editing services. Whether you provide those services as an individual or as the agent of a business entity, any income you derive from editing is subject to taxation the same as any other income you receive. |
Which grandchild is older, if one was born chronologically earlier but on a later calendar date due to timezones? In his will, Charlie bequeaths his estate to his "oldest living grandchild." Upon Charlie's death, his two oldest living grandchildren are Bob and Alice. Bob was born in Vancouver, British Columbia on March 7th at 11 p.m. local time. Alice was born the next day, March 8th, in Halifax, Nova Scotia at 1 a.m. local time, which is 2 hours before Bob was born, due to the time zone difference. Who inherits Charlie's estate? I'm interested in the answer for Canada, but other countries would also be of interest. | As you have stated, Alice was born two hours prior to Bob. In a will, "eldest" or "oldest" typically is equated with "first-born" (see Daniel N. Mattarlin, "A Simple Legacy: 'To My Children'" (1967) 12:3 McGill L.J. 240; Frederick Read, "The Legal Position of the Child of Unmarried Parents" (1931) 9:9 Can. Bar Rev. 609; An Act Relating to Wills, Legacies and Executors, and for the Distribution of the Estates of Intestates, S.N.S. 1758, c. 11, s. XII). It often is a reflection of an intention to borrow from the ancient law of primogeniture (which is all about literal order of birth), rather than to refer to a person's legal age as defined by statutes and anniversaries. Between Alice and Bob, Alice is the first-born and therefore the oldest under that understanding. But the question of who inherits depends on much more than the interpretation of this one word. For example, most (or all) provincial succession statutes give courts the power to rectify a will if the court determines that the will fails to carry out the will-maker's intentions. Evidence could be presented about how the birthdays of the two were celebrated in relation to each other, who the will-maker understood to be the oldest (if they both existed when the will was made), etc. | There is a good chance that the letter in question is in the public domain. Prior to 1978, the copyright laws were very different. Also, if it was published in 1963 or earlier and there was an initial claim of copyright but the copyright was not renewed, it would also be in the public domain. A convenient table summarizing when various pertinent categories of works enter the public domain can be found here. It might be possible to construe depositing the work with the Library of Congress as either a "publication" of the work (which if it happened before 1964 would put it in the public domain), or as a relinquishment of the copyright to the public domain, although I am not a specialist familiar with the legal effect of different forms of donations to the Library of Congress and it could depend upon the facts and circumstances of that particular donation to the Library of Congress. If worse came to worse, I imagine it might be possible to seek a declaratory judgment that your use was a fair use with substituted service on the heirs, and seek a default judgment, although that would not be optimal. The general problem that you face is that the work in question is what is called an "orphan work". Many other countries have special procedures to allow the use of orphan works, but the U.S. has resisted such legislation except for a narrow exception applicable only to libraries and archives at 17 U.S.C. § 108. | The seminal case on this was Riggs v. Palmer, 115 N.Y. 506 (1889). A grandson stood to inherit a sizeable estate from his grandfather and, concerned that the will might change, killed his grandfather. In the united-states most jurisdictions have passed "slayer statutes" to prevent the killer from taking under the will. In Maryland, one who "feloniously and intentionally kills, conspires to kill, or procures the killing of the decedent" is barred from inheriting or otherwise benefiting under the will. See Md. Est. & Trusts Code § 11-112. Manslaughter is a felony in Maryland. See Md. Code Crim. Law § 2-207. So if a particular instance of manslaughter involves intent (e.g. the grandson intentionally kills the grandfather following some adequate provocation), the slayer statute should bar taking under the will. But if it doesn't, the killer wouldn't be disqualified. Wikipedia adds: The Maryland slayer rule is harsher than most other states. In addition to prohibiting murderers from inheriting from their victims, Maryland's slayer rule prohibits anyone else from inheriting from murder victims through their murderers; Maryland's slayer rule is thus similar in structure to corruption of blood. For example, a mother leaves her son $50,000, and leaves her son's child (her grandchild) $100,000. She leaves her residuary estate (i.e., whatever else is left of the estate) to her daughter. If the son kills his mother, then under Maryland law, the son's child will inherit the $100,000; however the son's $50,000 (which is also the indirect inheritance of the grandchild through his father), is not available under Maryland law to either the son, or his child. The $50,000 becomes part of the mother's residuary estate and goes to the daughter. | If the property has been transferred to HUD in a reverse mortgage foreclosure, the family has no authority to sign anything and the country records are simply not up to date (it is not unusual for county real estate records to be one to six weeks behind being up to date based upon how busy the recording office is and how many staff they have, often they are further behind in the summer and around Christmas when employees tend to take vacations). HUD can sign the easement, and so can any successor owner. Whether they will or not is another question. Even if the foreclosure were not quite complete, any action taken by the family after the foreclosure was commenced would be invalidated once the foreclosure was completed. | Publication after the author's death is still publication. As you can see in this excellent chart this work is copyrighted for 95 years after the publication date under US law. If it had never been published, it would be protected by copyright for 70 years after the death of Lovecraft, the author (a term which has now expired). However, statements of genealogy would be facts, and as such are not protected by copyright. limited quotes to support those facts would be appropriate in a work of non-fiction, and would normally be permitted as fair use under US law. Such quotes would probably not be appropriate in fiction in any case. The exact wording of the genealogy would probably be protected, but not the relationships (who is the parent of whom, etc). | There is no law governing the 'number' of the president. Common sense suggests that a person can't be 45th and 46th; there must be someone in between having the presidency and they will become the 46th president. In the extremely unlikely scenario that a foreign power occupies the United States this year, eliminates the office of President, and a few years later the US is liberated and Donald Trump is re-elected, I guess people could name him the 45th and 46th President, but it makes no sense to speculate about this. | As I read the hypothetical facts in the linked question Bob has not filed a suit against Big Co, because no law firm is willing and able to handle such a suit (which I find unlikely). BigCo has not filed a suit against Bob, perhaps because it does not want to draw attention to Bob's claims. So there is no suit in progress. If this is true, no court has jurisdiction of the case, indeed there is no case in a legal sense. No US Court will reach out to take a case that no one has filed, and if one attempted to do so, I strongly suspect this would be a violation of the Due Process Clause of the Fifth or Fourteenth amendments, depending on whether it was a Federal or State court. If it were a Federal court, this would also violate the "Case or controversy" provision. I can't find any report of any US court that has tried to do anything of the sort, so there is no case law to cite about the outcome of such an attempt. If i have misunderstood the question, and either Bob or BigCo has in fact filed a suit, and some court has jurisdiction of it, then the situation is quite different. In that case a court can restrict publication of statements that might be likely to result in jury prejudice and deny one party's right to a fair trial. However such orders are strongly disfavored. A court must demonstrate by findings of fact in the gag order that impairment to a fair trial is likely, and that he proposed order is the narrowest possible means of ensuring a fair trial, and that less restrictive methods, such as change of venue, a sequestered jury, or careful examination of potential jurors, cannot achieve this goal. It must also show that the order is the least restrictive order that will achieve the goal. If such findings are not included with the order, they order may be overturned promptly by a higher court on motion of either party, or of any third party (such as a news organization) affected by it. The situation as described seems implausible. | The question is definitely specific to a jurisdiction. I think this is legal in the jurisdiction you specify. Wikipedia shows incest in New York defined as: Persons known to be related to him or her, whether through marriage or not, as an ancestor, descendant, brother or sister of either the whole or the half blood, uncle, aunt, nephew or niece. I don't think "our children have married" means the couple is related "as brother and sister through marriage". In England and Wales, this would definitely be legal. Wikipedia lists the relationships that cannot marry, and co-parents-in-law are not on the list. (The table is probably out of date, in that the "for men" and "for women" column should almost certainly be merged.) |
Can two unique inventions that do the same thing be patented? Let's say I get a patent issued for a process/formulation that cures a disease or treats damaged hair. Can someone else come along and invent something that cures the same disease or repairs hair, but they found a totally different chemical, process, and formulation? Maybe a better way of asking is: can you patent the result or function of an invention? | Yes - patents are not for results but for devices and processes that can achieve the result. An airplane and a helicopter can have similar results; more than one medication helps to reduce blood sugar levels. | You can write anything you want (basic First Amendment protections): the question is whether one would be liable for damage that arises from what you're written, or whether you can distribute what you've written. Distribution may be restricted, thanks to the Commerce Clause (hence FDA regulations, which figure prominently in the analysis). Most software writers are not medical practitioners, and vice versa, and what the software writer does is implement something described by a competent medical practitioner. It is logically possible that a med. practitioner might also try to write software (no problem) and distribute it (possibly a problem); or, a software writer might read up on something on Wikipedia and try to implement it (again, no problem) or distribute it (possible problem). Damages can be sorted into two categories, implementation errors and scientific errors, and having ruled out deliberate sabotage, we are left with negligence. If the software writer failed to use suitable care in writing code that sums a set of numbers, the software writer has been negligent. If the person purporting to have the qualified scientific knowledge mis-states the formula, that person has been negligent. It is possible for many parties to be negligent (the programmer failed to be diligent in understanding the software requirements; the medical professional failed to adequately explain what was required of the program). The FDA does regulate medical devices, and "device" is construed pretty broadly (condoms are non-exempt class 2 medical devices). There is FDA guidance on medical software which makes it clear that the device manufacturer shoulders the regulatory burden. Anytime you manufacture a tangible thing (which is within the scope of FDA regulation for medical devices), you have to have the thing approved. Many (most?) medical devices implement software, and are thus within the scope of FDA scrutiny. It is not illegal to write software that ends up being implemented in an unapproved medical device, but the unapproved medical device itself is illegal. It is reasonably likely that purported medical software (not a gadget with software build in) would be held to be a non-exempt device. To know if something is exempt, you would look at the exemptions list, and determine that your program (or thing) is not on or implied by anything on that list. The visual acuity eye chart is a class 1 exempt item, as is the manual toothbrush. There is no way to specifically look for things that are only software, or that contain software, so the search through the list would have to be guided by knowledge of the subject area. Canada is helpful in explaining when software is a regulated medical device. This is non-probative w.r.t. US law but gives you an idea what is likely to be considered a "device". Under Canadian law, the software would be clearly a regulated medical device. The FDA has a power-point that attempts to say something about the matter which warns you that you are on your own and "You will need to go back to study and use the source regulatory documents" to make the determination. Eventually, slide 13, they hint that if you intend the software to be used in diagnosis, prevention, or treatment, then it is a device (so, yes, the aforementioned software would be a device, and probably not exempt from regulations). General purpose software (word processors, web browsers, communications software, etc.) are not indented to be used for a regulated purpose, although they can be so used, and thus they are probably not subject to FDA regulation. There is a murky relationship between regulatory approval and liability. Being approved by the government does not convey immunity to negligence suits (see Wyeth v. Levine), but being approved can have weight in determining whether a party was negligent, since regulatory scrutiny ostensibly filters out errors that could have been caught. Federal approval does not preempt state tort law, as the court ruled. Regulations pertaining to medical devices hold for anything that qualifies as a device, and is not defined (negatively) in terms of disclaimers. If you sell a medical device but label it saying "this is not a medical device, it is not created by a competent medical practitioner", that doesn't make it not a medical device. Unfortunately, what counts as a regulated device is based on intended use, and there is an obvious connection between disclaimers and intentions. Taking MS Word as an example, MS does not as far as I know say that "Word is not intended to be used as a medical device". It can certainly be used to diagnose, teat, and prevent medical conditions, but so too can a screw driver or pretty much anything else. The number of non-medical uses vastly outweigh the medical uses, so it would be deemed not to be a regulated device. A program which prescribed a set of prayers to be uttered in case of illness would be subject to First Amendment override of any FDA regulations. Quack medical devices are prohibited (that's why there is regulation of devices in the first place), but discerning the fine line between permitted actions based on nutty beliefs and forbidden actions is not easy. The FDA also has guidance on the distinction between "Complementary and Alternative Medicine", which does not clearly state that, for example, a software reading of your cakra-energies based on a computer program's questions is not a medical device. They do say of mind-body medicine (mentioning yoga, biofeedback and tai chi as examples) that "CAM practices in this domain would not be subject to our jurisdiction under the Act or the PHS Act", but then say "any equipment or other products used as part of the practice of mind-body medicine may be subject to FDA regulation, depending on the nature of the product and its intended use" (hence a yoga-enabling program may be subject to regulation). | First, even if your competitor is operating outside the jurisdiction of your patents, you also have protection from the use and import of the infringing products, not just the manufacture and sale. For example, if you have a US patent, your patent would allow you to sue airlines using your product in the US (e.g., flying into, out of, and/or within the US), even if they bought the product from a foreign competitor. Suing potential customers isn't as attractive as suing your competitors, but at least you would have that option. Further, it is possible to apply for a patent in multiple countries (e.g., through the PCT process), although it can get expensive to try to obtain protection in a large number of countries. You can try to target the main jurisdictions in which your product would be made, sold, or used. For example, you could apply in the US, China, and various European countries (through the EPO). | There is a history of "giving away patents", which allows the original grantor to foster innovation instead of stifle it. Here are some examples: Sealand Industries - ISO Shipping Container Patented the standard shipping container, then gave away the patent royalty free, allowing a revolution in ocean going shipping. Annually it is estimated that $440 billion are shipped through these containers. Tesla - 200+ patents Elon Musk announced that the company "will not initiate patent lawsuits against anyone who, in good faith, wants to use our technology.". Toyota - Hydrogen Fuel Cell Patents Released 5,680 patents related to hydrogen fuel cells Toyota also released a lot of patents related to development of the Prius The grant of a patent provides the ability for the grantor to pursue infringement lawsuits against companies or individuals, but it does not obligate them to do so. You can give away your patent, open it up to broad licensing, or just openly state that you will not enforce any action related to the lawsuit similar to how Tesla did it. | It would seem that your song is a derived work. You took the original work and found words that sound the same. If the original work had used different words, your work would have ended up differently. So you have a derived work. Same as making a translation; if the original was different, then the translation would be different, so the translation is a derived work. I was asked "How is this not straight up infringement". But it is. Not only copying is an exclusive right of the copyright holder, but also the creation of derivative works. | A patent can be fairly broad if it meets the requirements, two of the most important being novelty and non-obviousness. However, it is difficult for an idea to be broad and still meet the requirements. Let's use the Blackberry example. Blackberry almost certainly has some specific patents. But smartphone is way too vague. The desirability for something to be smart is obvious. What about wireless text messaging? HAM radio operators were sending wireless text messages in the 60s (my father had a setup). So, this fails the novelty requirement, already been done. Next, consider: text messaging via cellular wireless. You might be able to patent this, but whoever invented cellular technology probably already considered it and beat you to it. Need to be more specific ... It would take some research, but I am guessing that Blackberry has a patent for a specific messaging system, i.e, protocols for sending, receiving, and storing messages. But, that won't stop someone else from developing their own messaging system. Finally, note that in a highly competitive, profitable business such as smartphones, there are many patents, and the patent owners will often believe that another patent is in conflict with theirs. Legal battles can take years to resolve. | If I draw something, having been inspired by looking at some other thing, you are not copying that thing. If you carefully copy something even if you are also deliberately changing features of the original, then you are copying. Copyright law gives the copyright holder the exclusive right to make copies. There is a difference between copying music and visual art in this respect, since music can be reduced to a small set of specific symbols, so "being inspired by" a musical work is often found to be infringement. The difficult part is legally distinguishing "making a copy" versus "being inspired by". The courts use a subjective test of "substantial similarity" to decide if there has been copying. the case of Mannion v. Coors. "Pose" is an element that is considered in assessing similarity: the question the court would ask (itself) is whether such a pose could ever have come from elsewhere (such as, your own creative efforts). | You will want to speak with a patent attorney, not a labor attorney. Some of the facts you are presenting are entirely wrong. Patents have inventors, copyrights have authors. Inventorship has strict rules. Inventorship cannot be denied without consequence in almost any jurisdiction, but you'll need to get local legal advice. In the US, "A patent is invalid unless it lists the first and true inventor or inventors of the claimed invention." (See Stark v. Advanced Magnetics, 119 F.3d 1551, 1553, 1556 (Fed. Cir. 1997); 35 U.S.C. § 102(f) (“A person shall be entitled to a patent unless . . . he did not himself invent the subject matter sought to be patented). See also 35 U.S.C. §§ 111, 115-16, 256.) Assignment--the "ownership" of the patent--is different. It's very common to have you sign an agreement as a condition of your employment that you grant full assignment to your company for any patentable material created under their employ. If you did not, it is possible that the company would need to give you consideration for the right to assignment, e.g., they would have to pay you something to own the patent. If you are no longer there, that "something" can be substantial, because the patent is invalid without it, and they have little leverage over you. Bring all written records, emails, etc. to a licensed attorney who specializes in patent litigation. |
Toronto - legal to fix car in home garage? Is it legal for someone to fix up old cars in their home garage in Toronto (north York specifically)? Including painting the car, engine etc, essentially trying to bring a dead car back to life. | It could be. You would have to check the specific address here, although not all properties are covered by By-Law 569-2013. This will give you the allowed uses. Picking a random residential-looking location, you might be stopped by §15.20.20.100 of the zoning bylaw, which restricts service shops to being located in non-residential buildings. There are also specific laws about vehicle service shops, which may included a required 3 meter soft landscape perimeter and fence, depending on what is adjacent to the lot. | There is no general rule about ownership: one parking lot I know is owned by the city, another is owned by the company that operates the mall, and in a third case it is owned by a third party who doesn't operate the mall. Either way, the owner of the parking lot has the property right to limit how it is used, and their agents (security guards, for example) can request that you refrain from skateboarding. They can evict you; they may not have the legal authority to physically toss you off the property, but they can probably perform a citizen's arrest for trespassing. None of this depends on how many cars are in the parking lot. It is more likely that a governmentally-owned parking lot will have a corresponding law restricting its use (whereas in the case of a private parking lot, restrictions center around general property law and the law of trespass). | It will very much depend on what you modify. If you only drive on your own land, that's mostly fine (possibly not fine if your own land is a road accessible to the public). What will cause you problems: The manufacturer has a general permission to distribute car models with certain characteristics in your country. There's trouble if your modification means your modified car doesn't have these characteristics. Your car insurance is for a certain car model. Your insurance may be invalid if you modify your car. As "boy racers" were mentioned, part of the insurance cost is based on the type of drivers this car model attracts. If you change it from "boring old family car driven by boring old dads who never have accidents" to "exciting boy racer car driven by maniacs who crash their car regularly", you would be expected to tell your insurance so they can adapt their insurance. As far as passing your MOT test goes: If you don't advise the tester of the change, and therefore the fact that your car is unsafe is missed, your MOT is not valid. Same in the time between making changes and the next MOT if your changes made the car unsafe. Usually that will be found out at the worst possible time: After you are involved in a costly accident. | It's right in the contract In the event I fail to take delivery of the vehicle purchased by me within forty-eight (48) hours after I have been notified by you that it is ready for delivery and pay the total contract price in the manner indicated, my deposit in the amount of $300 may, at your option, be retained by you to compensate you in whole or in part for any loss sustained by you. Your right to retain my deposit shall be in addition to and not instead of any other right or remedy provided by applicable law including, without limiting the generality of the foregoing, the sale of the car or truck I agree to purchase. If the amount of my deposit exceeds actual damages sustained by you, you will promptly refund the difference to me. The car was ready on day 3. As a result, the Customer was obligated to pay and take delivery of the vehicle until day 5. Because the customer did not follow through with the purchase, the deposit is used to compensate the salesman in the amount that covers the costs of preparing the sale and having the car on the lot for those days that the salesman could not sell it to someone else. At the end of day 5, the contractual obligation to hold the car for the customers in exchange for the deposit ended, and the other clauses of the contract (car for rest of payment) become void. The car salesman is in his right to sell the car because the actual sales contract has fallen through and the holding fee/deposit expired, as the very quoted paragraph shows. Based on the final sentence of the quoted portion of the contract, to get a part of the deposit back, one would need to establish that the losses are less than the contractually fixed amount of 300 USD. When I had my car at the workshop and could not get it back on the day it was done with repairs, I was also informed that holding my car for more than a day would incur storage fees of up to 15 € per day. Similarly, the last time I bought a car, I was told that the sale included a fresh inspection and oil. Those are costs to the seller and can be accounted for in the deposit. The inspection costs about ~120 € for a new TÜV certificate and exhaust check and the materials for an oil change come for about 70 €. This leaves about 70 € cover for the mechanic and salesman's wages for about one hour. That's 300 €, or about 330 USD today. As such, costs to prepare a contract and transfer, inspect the car for roadworthiness as well as storage fees most likely are reasonably assessed to be in the 300 USD area. | Damaging someone else's property is not protected free speech in the US. Nor is using someone else's property without permission and against the owner's wishes. Scenario 3 would surely be vandalism or "Malicious Mischief" or some similar offense, even if the paint can be fairly easily removed. The same would be petty surely true of scenario 2, as it would take at least some effort to remove the sticker, and it could be a safety hazard until it is removed (obstructed vision). Scenario 1 would probably not be even a minor crime, unless perhaps the person trespassed to attach the string. But the person has no right to insist that the car's owner not remove the sign. I am assuming that the car is owned by someone else, and the the person placing the sign, sticker or paint acted without permission from the owner or any authorized person. | States can, and some states do, have "mini-Sherman" anti-trust laws of their own. Whether a city could have such a law would depend on whether the state had delegated that power to cities. I haven't heard of a city that has such a law, but I haven't really looked. Or if a state has a "mini-Sherman" law, a city could perhaps bring action under such a law, depending on its exact terms. Or a city could impose a licensing scheme on a specific industry that also prevented a monopoly, similar to the requirements that many cities and towns place on taxicabs, or on bars. Both of those typically limit the number of units that a single entity may own. So perhaps it could be done for parking. | You would report unpermitted lock replacement to the home owner. The building code regulates new construction and renovations, and is not a requirement of any and all residences. This seems to correspond to a "secondary suite", which is supposed to be registered with the city (if it is allowed in your city). Here is a link for Vancouver, for instance. Such suites are supposed to be registered and inspected, the inspection being carried out by Development, Building and Licencing: By-Law Compliance & Administration (a division of the city government). This article discusses some of the legal problems that can arise from an illegal secondary suite, however the penalties would land on the property owner, and he may not have approved of this subletting or the basement suite. A less-nuclear first step would therefore be reporting it to the property owner. | You did not specify a country or the specific contracts that might rule your condominium. At least in some jurisdictions indeed the repair cost of private portions cannot be shared. Moreover, you may not be required to pay some costs for common portions if you refuse to do so and won't make use of them. Do I have to sue them to fix this issue? A lengthy law-suit is too costly for me. If I refuse to pay $2k and only pay 1.2k, will I be facing any legal troubles? You will probably manage to continue paying just 1.2k, and have them have to sue you if they want to collect that supposedly owned money from you. However, there might be some requirements about providing notification of your refusal in a certain way or before some time elapses. I would recommend you to consult a local lawyer, it will be well-spent money. Plus, that refusal is actually sent by your lawyer (rather than just telling you how/what to say), should make your "law-understanding neighbor" think twice about going forward with their attempt of having you pay for it. |
Judge witnesses the whole crime What happens if the judge by some chance witnesses the crime? Has this ever happened? Or is the judge always picked in such a way that they could never be a witness? (Out of fears of bias or whatever) I was thinking about ancient or medieval situations where the ruler would witness a crime and order a punishment directly, since he didn't need more convincing, and they were judges for all intents and purposes once upon a time. I guess they can't do that today anymore, but what would happen if a judge today would witness the crime directly and just happen to be deciding in the court case? Let's say for example the judges in some location happen to be visiting a security facility for some guided tour or whatever, and they get to see the security cameras just as somebody is burglarizing the monitored building, so you can only get "non-witness judges" from out-of-state or another region. The lawsuit hasn't begun yet, and all of the possible, local judges saw it happen. How does it affect the process? Is the defendant automatically prevented from pleading not guilty? Is evidence still necessary, is the process just a formality then? What effects would it have on the process and verdict themselves? | There is one context where this does happen. Common law judges have direct contempt power. This means that while a judge is in the courtroom presiding over a case, the judge can summarily punish someone with incarceration and/or a fine without a trial for "contempt of court" because the judge has personally observed what has happened. Contempt of court encompasses types of disorderly conduct that wouldn't otherwise be criminal conduct. In other contexts, the judge is just one more witness and would not be assigned to handle the case. so you can only get "non-witness judges" from out-of-state or another region. The lawsuit hasn't begun yet, and all of the possible, local judges saw it happen. As a practical matter, this is basically impossible. But there are procedures in cases where large numbers of judges a conflicted out of a case, for example, to get a judge from the next county over or another part of the same state. | The old saying: Being your own lawyer means you have a fool as the lawyer and a fool as the client. If one fool calls the other fool as a witness, that's even more foolish. And the worst crime is annoying the judge with your antics. Opposing council will just take note of every question you ask and your replies, and then call you as witness themself. And assuming they are a proper lawyer, everything they ask will be hurting you. No need to accuse you as "leading" or "badgering" the witness. | The burden of proof is always on the plaintiff (except for counterclaims brought by the defendant against the plaintiff). In your example, the businessman has to prove that he did not rape her. | Yes, you may call a defendant as a witness and compel the defendant to testify in a civil case. If you need this testimony to prove your case, you should have the clerk issue a subpoena for trial to the defendant and have that subpoena personally served by a process server upon that defendant (sometimes a witness fee, a mileage allowance, and a copy of the relevant statute must also be included in the package). There should be a standard court form available to do this. The subpoena to appear and testify at trial must be delivered to the defendant by the process server a certain amount of time in advance (usually two days, but court rules vary). Also, when you call a defendant as a witness you may generally examine the witness with leading questions, which is something that you are not usually allowed to do with witnesses that you call in your own case. Forcing a defendant to testify to the indisputable facts is a good way to meet your burden of proof towards establishing those facts. But, when you call a defendant as a witness, you should limit your questions to those you know the answer to and can ideally prove with other evidence if the defendant lies. Don't try to tell the entire story of the case with the defendant, just the undisputed facts. The one narrow exception to this would be a criminal contempt of court proceeding (i.e. one seeking the remedy of throwing the offending party in jail where there is no way to obtain relief by taking the action requested) prosecuted by a party within a civil case, to which 5th Amendment protections would apply. But, this would not apply to the kind of case described in the original post. | Canada's local court systems and procedural rules vary, especially at the lowest level, by province. So, I'm just stating some general principals. General speaking legal arguments are limited to closing arguments of the parties after all of the evidence has been presented by both sides (because this limits legal arguments to those with evidentiary support rather than merely hypothetical arguments). Opening arguments are usually supposed to be limited to a recitation of what the facts in the case will show. Presentation of evidence and examination of witnesses is also not a time for this to be done. Some courts in some jurisdictions allow a defendant to make a "half-time motion" at the close of the prosecution's case, arguing that the prosecution has failed to meet their burden of proof to establish grounds for a conviction before the defense presents the defense's evidence. But, such formalities are often dispensed with in traffic court. Some courts allow post-trial motions to be made after a verdict within a certain number of days set by court rule asking the court to reconsider its decision or overturn a jury verdict, although these aren't always available in a traffic court case. Sometimes these issues are also raised in a pre-trial trial brief or in motion practice prior to trial. The amount of time allowed for closing, and discretion to consider arguments at times other than time usually allowed are in the discretion of the trial judge. Usually, courts are more lenient regarding formalities when a non-attorney is arguing a case. Usually, there is less opportunity to raise legal arguments following a trial if the traffic court is not a court of record and appeal is by trial de novo in a higher court, and there is more opportunity to do so if the trial is in a "court of record" in which a transcript is maintained and if the trial is a jury trial (although in a jury trial, the legal arguments are made out of the presence of the jury in a hearing over jury instructions, rather than before the jury). In a traffic case in a court of record, in front of a judge, five or ten minutes, at most, would be typical and trial briefs would rarely be considered, but the judge might listen longer or take the case under advisement and ask for further briefing, if the judge thinks that there is merit to a legal argument and wants to do further research (which would be extremely unusual in a traffic case). | No. Indonesia Law uses Civil Law structures which use an Inquisitorial Trial. The chief difference is that in the United States (which has a Common Law Structure) the judge usually does not decide the case, but interprets the law (Trier of Law) and with a few exceptions, will determine the sentence once guilt is found. The Jury decides the case (Trier of Fact) and pronounces guilt (It is the right of the defense to request a Bench Trial, which gives the Judge both roles. The prosecution cannot object to this request). In a Civil Court, the big difference is that their is no Jury and the Judge has both roles (Trier of Law, and Trier of Fact). As the name suggests, rather than two sides fighting each other (adversarial), the two sides are answering questions posed to them by the Judge or usually a panel of Judges are used and the Judge may initiate further investigation in the evidence. The United States does use Inquisitional Trials from time to time, but they are often seen in misdemeanors, traffic courts, and small claims courts. The latter is a popular daytime TV genre (think Judge Judy) while misdemeanors and traffic court decisions are often time funny and make great Youtube videos. There are not many great Adversarial media as many throw out rules for time sake (real U.S. trials have many long boring periods during testimony) and story/drama sake. I would recommend "My Cousin Vinny" which was written by two lawyers who were fed up with Hollywood messing up how court room drama works and is hilarious to boot. When viewing either, take them with a grain of salt. | Exactly the same thing that stops the same rogue lawyer from putting on a mask and robbing a bank. One is the crime of fraud and the other the crime of armed robbery but they are both crimes. People commit crimes all the time; that is why nearly 1 million people in the U.S. are in jail right now - some of them may even be in there for crimes they actually committed! Were your lawyer to commit this crime he may get caught or he may not; if he does he's going away for a long time and can never work as a lawyer again. So it's simply a matter of risk assessment; oh, and ethics | I've never heard of a rule specifically addressing this in the united-states, but I expect most courts would disallow it. I suspect a court would believe that the note-taking would be a distraction to the witness, whose focus should be on listening to the questions and providing truthful answers. The note-taking may be perceived as a distraction from the testimony for others in the courtroom, as well. If I were examining the witness, I would probably be entitled to see what the notes say, dragging out the witness's examination. Then the witness would want to take notes about my questions about her notes, and I'd want to see those notes, and you can see how it can get out of control. |
Is it legal for a store to lock the door with customers inside? In a retail store the manager has instructed employees to lock the door when the store has closed, even if customers are still inside. This is to prevent more customers from entering. Is locking the door with customers inside legal? To be clear it is an ordinary lock with the non key side being on the inside (i.e. the customers could let themselves out). Who would handle such complaints? | The customers are able to leave, so there's no reason it could be a crime. Even if they weren't able to operate the lock themselves, they are presumably able to leave by asking a staff member. There is no way this could be remotely considered false imprisonment. Depending on the layout and size of the store and presence/lack of other fire exits, this might violate fire safety regulations. | So for your first question, yelling "Stop Thief" loudly at the thief is perfectly legal (Like Yelling "Fire" in a crowded theater, it's legal if the theater is infact, on fire... the quote implied that it was a prankster who drew amusement from the reaction of the people who took him seriously). This may alert store employees, who have a specific kind of Citizens Arrest Power known as "Shopkeeper's Privilege" and is a reduced liability compared to Citizens Arrest. This is also pretty basic self defense agains people who are not engaged in any physical action against you but are starting to scare you. Suddenly shouting draws attention to you and discourages them from their behavior "I SAID DON'T TOUCH ME" being suddenly shouted in a Wal Mart is going to get notices from the immediate crowd drawn to you, and by poximate location, the person who is making you uneasy. For your second question, maybe, it depends... since the cop is clearly chasing the guy, you meet the qualification to use non-deadly force in stopping the criminal (i.e. you are witnessing a person committing a crime, in this case, resisting arrest or persuit) and it would certainly be reasonably non-deadly force if you were to trip, grab, or push the fleeing suspect. Citizens Arrest doesn't specify a minimum time to qualify, so if the officer is seconds behind, and you detain the criminal in this action until the gap is closed, it still counts. | No, it's not legal. The General Data Protection Regulations (GDPR) apply given that you are in the UK (regardless of where the Data Processor is based). The UK GDPR is slightly modified due to Brexit, but the same principles apply. The only plausible legal basis for this actions would be that you consent to it, and you're entitled to withdraw that consent at any time. Some may claim that Article 6.1(b) applies, i.e. that it's necessary to send marketing email in order to fulfil the contract, but GDPR is clear that bundling such consent into a contract for service simply to permit the data processor additional actions isn't allowed, as I'll demonstrate. UK GDPR requires that consent to use your personal information (in this case, your email address) for the stated purpose be freely given. Consent to use your information for direct marketing is not freely given if it's inseparable from the consent to use it for some other service, as per para 43: Consent is presumed not to be freely given if it does not allow separate consent to be given to different personal data processing operations despite it being appropriate in the individual case, or if the performance of a contract, including the provision of a service, is dependent on the consent despite such consent not being necessary for such performance. And Article 7.4 backs this up with When assessing whether consent is freely given, utmost account shall be taken of whether, inter alia, the performance of a contract, including the provision of a service, is conditional on consent to the processing of personal data that is not necessary for the performance of that contract. The intent of Article 6.1(b) is that only the processing required for the service you have bought is allowed (e.g. if you supply your address for delivery of stuff you've bought, the data processor can use that address to send you the stuff, but is not allowed to add a contract term that allows them to send you unwanted stuff). Examples of emails that Article 6.1(b) would allow (in my assessment) include things such as notification of upcoming downtime, or a reminder that subscriptions are due, but not unsolicited advertisements for other products. There's a grey area that's open to interpretation, where adverts are piggybacked onto actual service messages. | Your lease states what your rights and obligations are: you cannot unilaterally change those terms, nor can the landlord. Providing a functioning lock on the door is a statutory obligation of the landlord, and the landlord gets to say what kind of lock is installed as long as the device functions, and isn't impossible for the tenant to operate. If the landlord replaces the lock with a no-security $10 entry door knob that yields to a screwdriver, they probably failed in their obligation to provide entry security. Failing such a concern, you don't have a legal right to refuse the landlord's choice of lock. You also do not take on the obligation to acquire the tools needed for installation, and so on. In short, you don't have a choice. Since you have no choice and you are not a party in this transaction (the landlord is not acting as your agent, he is satisfying a legal obligation that he has), the question of "agreeing" to someone else's transaction and contract is irrelevant. The landlord, as purchaser, must comply with the terms of the contract since he is a party to the contract. The seller might impose an obligation on the buyer and the landlord might hope to pass those terms on to the tenant via a lease term, but that can't be done unilaterally in the middle of a lease. | In general, no. When the salesperson quoted the price and you accepted it you were each bound to that price by contract. Consideration under a contract must be sufficient (something of value for something of value) but it doesn't have to be fair: you can be obliged to pay $2 million for a cupcake or sell your Picasso for $1. You were and are under no obligation to pay and could successfully sue for the return of your money. To further clarify, it doesn't matter if the store has or has not provided the goods or services when they discover their error: they are obliged to perform their side of the contract without additional payment. Further, if this was a consumer contract then some sort of consumer protection law almost certainly applies. This would probably make what the store did not only a breach of contract but an offence against the state as well. | The answer seems fairly simple. ANY item not belonging in the room and NOT found in a waste receptacle must be brought to management and logged. i.e. if the hotel guest threw a crumpled scrap of food wrapper at the bin and missed, that item must be presented to management and logged. Then, it's management's decision to toss it. I imagine that the twelfth time that management has to evaluate whether a used condom is personal property or trash, they will revise their ill-advised little letter. Additionally, how does the guest know for certain that an item was actually left in room, and how does management know that a particular staff was the only one who could have encountered it? They'd have to implement key card logging or video cameras. i.e. the staff could simply deny that any items were found in the room, or perhaps they could demand that a manager must clear a room of possible guest property before entering. Put simply, how to prove a particular person had access to the room and exercised that access, AND that they encountered the wayward guest item? | Since you asked two questions: No and No Does a company’s T&C or their house rules supersede law No and is asking private health status (including the request to wear a mask) an offence? No A company cannot require you to do things that are against the law but they can require you to do things that go further than the legal minimum. The UK and Spanish governments do not require you to wear a mask but they do not prohibit private organisations (like airlines) for making it a requirement to access their facilities. The law requires that they make reasonable accommodation for people with disabilities. But you don’t have a disability, you just can’t sleep with a mask on. If you had a disability you would have no trouble in getting a letter from your doctor to that effect. The contract requires them to take you from the UK to Spain: they don’t have to enable you to sleep. If you read the T&C, you will find that they can refuse to carry you if, in their reasonable opinion, you pose a hazard to the aircraft or the people aboard it. | This is a matter of state law, and so could in theory vary from state to state. But I think that in most, if not all, US states, a public utility like a water or electric company must take any customer unless they have a history of unpaid bills or the like. They don't have to lay new pipes or run new wires to bring service to you if it is at a location not previously served, however. In the Maryland code, § 7-307 ( Termination of service to low income customers) provides: (1) Subject to paragraph (2) of this subsection, the Commission shall adopt regulations concerning the prohibition against or limitation of authority of a public service company to terminate service for gas or electricity to a low income residential customer during the heating season for nonpayment. (2) In adopting the regulations required under paragraph (1) of this subsection, the Commission shall consider and may include provisions relating to: (i) the circumstances under which service may and may not be limited or terminated; (ii) the minimum heating levels required to maintain life, health, and safety; (iii) the medical, age, disabling, or other individual characteristics that are relevant to a prohibition against or limitation on the termination of service; (and other provisions) That the Public Service Commission is empowered, and indeed obliged, to issue binding regulations on when service may be terminated might imply a duty to provide service in the first place, but that is not as clear as I would like. I know that in practice a utility runs a credit check and may demand a deposit if the results are not satisfactory, but I do not see a law compelling that behavior. It may be in regulations adopted by the commission. |
Is a conditional threat still a true threat? In the US, can attaching a condition to a threat have any bearing on whether it's a true threat or not? In other words, is there are difference between the following threats, in terms of criminal law: I'll hit you! (unconditional) If you speak to me again, I'll hit you! (conditioned on something that the other person is perfectly entitled to do) If you try to steal my car, I'll hit you! (conditioned on the other person's criminal behavior) If you violate the 2nd law of thermodynamics, I'll hit you! (conditioned on something impossible) | The mere presence of a conditional isn't a determining factor, but the context of the conditional can be a contributing factor in determining whether the threat is true or not. See a more recent publication from 2003 for a better understanding of those factors. I definitely wouldn't rely on anything from the 1600s as a reliable source. Back in the old days a threat was essentially the same as an assault, but nowadays we often view threats and assaults more distinctly and have crafted more specific laws to address them. Just as an "arrest" was once used to describe a seizure of any kind regardless of the duration, more modern case laws have established distinctions between arrests (full-custody seizures) and detentions (temporary, short-duration seizures). Since most jurisdictions in the US now have a separate statute for addressing threats in order to distinguish them from assaults, we have to read the exact verbiage of each state to determine whether it covers the particulars of the threat. Here are a few examples. Note the similarities and differences in each: Arizona: Threatening or Intimidating Texas: Terroristic Threat New York: Menacing As you yourself pointed out, simply making a threat isn't necessarily mala en se, and there are times where the law explicitly allows for people to issue threats, particularly when it comes to defending themselves, another person, or their property. For example, in Arizona, ARS 13-407 allows a person to issue a threat of deadly force to defend their property against trespassers, but does not allow them to actually use deadly force to do so. This means that Arizonans who find themselves in a situation where they feel it necessary to issue a conditional threat to an intruder ("leave my property right now or I'll shoot you"), must understand that the threat is empty unless the intruder shifts his focus from mere trespassing to harming a person. (The bad guy doesn't need to know this though, and all the better if he doesn't.) Even though the threat is empty according to the issuer's knowledge, it is still a threat, albeit one that the issuer is legally entitled to make. In this situation, the threat to use deadly force is decriminalized, not because it contained a conditional, but rather because it was explicitly authorized by law. In practice, many jurisdictions, especially ones with high crime rates, have arbitrarily decided to triage threats cases based on whether they include a conditional statement or not. After all, if you have 1,000 cases a month and a team of only 30 prosecutors, you have to prioritize the cases that are easiest to prove. With that in mind, many prosecutors offices have provided direction to their law enforcement partners to only submit cases that include unconditional threats. Those agencies in turn train their officers to ignore any threats cases involving conditional threats, perpetuating the misunderstanding that a conditional automatically negates a threat as being a true threat. There are literally thousands of cases where offenders have had their convictions upheld for crimes involving conditional threats. Just think of robbery/carjacking: A man walks up to a victim in a parking lot and says "give me your car or I'll kill you. Despite containing a conditional threat, there isn't a prosecutor or jury in the country that wouldn't instantly recognize this as a true threat and an element of robbery/carjacking. Conditional Intent to Kill is Enough for Federal Carjacking Conviction. | Yes. The principle caselaw is R v Hayward (1908) 21 Cox 692 A husband and wife had an argument that led to the husband chasing his wife out into the street. The wife collapsed during this altercation and died. Whist the husband did not physically touch her, he did shout threats at her. The wife was found to have been suffering from an abnormality of the thyroid gland that neither was aware of that meant that fright or shock could cause death if combined with physical exertion. The husband was charged with manslaughter. [...] The husband was found guilty of manslaughter. No actual proof of violence was necessary as long as the defendant’s unlawful act, which was the threat of violence, caused her fright leading to her death. The criminal law acknowledges that an assailant must take their victim as they find them... Source And... The defendant chased his wife out of the house shouting threats at her. She collapsed and died. He did not physically touch her. She was suffering from a rare thyroid condition which could lead to death where physical exertion was accompanied by fright and panic. Both the defendant and his wife were unaware she had this condition. Held: The defendant was liable for constructive manslaughter as his unlawful act (assault) caused death. The egg shell (thin) skull rule applied. He was therefore fully liable despite the fact an ordinary person of reasonable fortitude would not have died in such circumstances... Source | It's a "greater offense" -- sometimes also called a "greater included offense." But you're generally going to be mistaken about whether the defendant can be re-charged after an acquittal on the lesser-included offense. In the United States, at least, the Double Jeopardy Clause would prohibit that prosecutorial strategy. One could still face new charges for the same conduct, but those charges have to pass the Blockburger test. | A promise that a court would not enforce by injunction can still be valid consideration and be part of a valid contract. Failure to carry out such obligations would lead to some measure of money damages, most likely. On the other hand, provisions specifically barred by law, or against public policy, such as a promise to commit a crime, are void from the start, and form no part of a valid contract. Such provisions may be treated by a court as if they had just been left out, or if they were essential to the contract, or formed the sole consideration, the whole contract might be considered void. If a term is too vague for a court to determine if it has been violated or not, the court may try to clarify it, or may just ignore it. Just what it would mean for a tenant to "undermine the leadership" of a landlord is not clear to me, at least. That might well be held to be "too vague". As to "not complain" it may be that a tenant has a legal right to make official complaints, which cannot be waived by contract. Or it may not, depending on the local laws. | “Anything you say can be used against you in court.” Is what the police say in the USA. “You are not obliged to say or do anything unless you wish to do so, but whatever you say or do may be used in evidence. Do you understand?” is what they say in New South Wales. “You do not have to say anything, but it may harm your defence if you do not mention, when questioned, something which you later rely on in court. Anything you do say may be given in evidence.” is what they say in England and Wales. And so on. Whether Mark wants to mention that he was robbing a bank on the far side of town at the time is entirely up to him. If he does, and that can be verified it’s likely the murder charges will be dropped and armed robbery charges will be brought instead. Note that in many jurisdictions, if the defence intends to use an alibi defence, the prosecution must be told about it at a very early stage or it can’t be used at all. | The terminology used may vary some by jurisdiction, but in many it will be said that Bob provoked the confrontation, or that Bob was the aggressor, or that Bob was engaged in a felony and so cannot claim self-defense. This fact patter is highly unlikely to arise in real lie, because if Bob has even a half-competent lawyer, the issue of self-defense, sure to fail, will not be raised. Doing so only wastes the court's time, and may well make them think worse of Bob, which may cost him. In less open-and-shut cases, the general rule is that one who provokes a confrontation, or who is the aggressor, may not claim self-defense. But the exact rule varies by jurisdiction, and the line will be drawn in different ways in different jurisdictions. In some one who seeks a confrontation may be denied a right of self-defense. | The short answer is "yes". There is U.S. Supreme Court authority that supports this position, In particular, United States v. Laub, 385 U.S. 475 (1967), Cox v. Louisiana, 379 U.S. 599 (1965), and Raley v. Ohio, 360 U.S. 423 (1959), stand for the proposition that a defendant may not be punished for actions taken in good faith reliance upon authoritative assurances that he will not be punished for those actions. If the U.S. Department of Justice (or a U.S. Attorney with jurisdiction over the place the offense was committed) (hereinafter DOJ) says this, people who reasonably rely on that pronouncement can't be prosecuted until a different policy is announced and people who acted in reliance on the previous DOJ position are given a reasonable opportunity to change their conduct in response to the newly announced policy. The statement does have to be a publicly announced policy (or a policy personally communicated to the defendant or his counsel), and not just a de facto reality in terms of prosecutions not being brought in the past, or a secret, unannounced policy (or, for example, an unofficial and offhand statement of the U.S. Attorney General at a party that does not amount to a policy statement). Of course, the defense doesn't protect you if the DOJ says it won't prosecute if you do X, but you do X times Y which goes beyond the safe harbor created by the DOJ pronouncement. For example, the DOJ might say that they will not prosecute conduct involving marijuana offenses that is legal under state law, if it does not violate any other laws, and also meets certain conditions found in federal law (e.g. no offenses within 1000 feet of a school) that the DOJ chooses not to refrain from enforcing. But, if the DOJ then publicly says that it will start enforcing federal law without exceptions on July 1, 2021 and has rescinded its prior policy, a reasonable time in advance, then this defense ceases for conduct after that date. What constitutes reasonable notice would depend upon the facts and circumstances. The DOJ can also reach a binding agreement not to prosecute a particular instance of conduct by a particular person irrevocably in connection with plea bargaining type agreements, with respect to offenses of which the DOJ has jurisdiction (but not necessarily prosecutions by a different government such as a state government or the government of another country, for which the DOJ is not an authorized representative). For example, suppose that a mail carrier is killed by a resident of a home claiming to have acted in self-defense in Denver, Colorado. The DOJ could reach an irrevocable agreement with the resident to accept a plea bargain to a misdemeanor charge of not paying the tax due on the sale of the firearm from a non-compliant gun shop, dismissing forever the charge of murder of a federal post office employee. But that agreement would not bar the District Attorney in Denver from bringing murder charges twenty years later under state law prohibiting murder of human beings in the State of Colorado. For the defendant resident to prevent that from happening definitively, an agreement from the State of Colorado's District Attorney in Denver, or the Colorado Attorney General, would also be required. | Engaging in unlawful conduct does not completely preclude a claim of self-defense under Wisconsin law ...but it does raise the bar in some circumstances: Criminal conduct by the defendant removes the presumption that "force was necessary to prevent imminent death or great bodily harm" when defending against unlawful forced entry to one's own property. A much higher burden on use of force is imposed if engaging in unlawful conduct that is "of a type likely to provoke others to attack him or her and thereby does provoke an attack." Anyone intentionally provoking an attack by any means, lawful or unlawful, "with intent to use such an attack as an excuse to cause death or great bodily harm to his or her assailant," is not entitled to self-defense at all. Section 939.48 of Wisconsin law governs the standards for self-defense. 939.48(1) sets out the general standard: A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his or her person by such other person. The actor may intentionally use only such force or threat thereof as the actor reasonably believes is necessary to prevent or terminate the interference. The actor may not intentionally use force which is intended or likely to cause death or great bodily harm unless the actor reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself. 939.48(1m)(ar) provides presumptions in favor of the defendant and no duty to retreat when defending against unlawful entry to one's own property (an implementation of the castle doctrine), but those presumptions are removed by 939.48(1m)(b)1. if (among other things), "[t]he actor was engaged in a criminal activity." More relevant to a case that occurred outside is 939.48(2), which lays out how provocation affects a claim of self-defense: (a) A person who engages in unlawful conduct of a type likely to provoke others to attack him or her and thereby does provoke an attack is not entitled to claim the privilege of self-defense against such attack, except when the attack which ensues is of a type causing the person engaging in the unlawful conduct to reasonably believe that he or she is in imminent danger of death or great bodily harm. In such a case, the person engaging in the unlawful conduct is privileged to act in self-defense, but the person is not privileged to resort to the use of force intended or likely to cause death to the person's assailant unless the person reasonably believes he or she has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm at the hands of his or her assailant. (b) The privilege lost by provocation may be regained if the actor in good faith withdraws from the fight and gives adequate notice thereof to his or her assailant. (c) A person who provokes an attack, whether by lawful or unlawful conduct, with intent to use such an attack as an excuse to cause death or great bodily harm to his or her assailant is not entitled to claim the privilege of self-defense. |
International student on a scholarship terminating early - lease break problems So, I will be leaving 3 months earlier than planned, and I have teied to break my lease with the student housing complex agent, but had no luck. I left a deposit, so one month would be covered, but they expect me to pay for the remaining 2 even though I will leave the country. I don't have an SSN, but they do have my passport and scholarship ToA contract. My question is - what happens if I just leave? Can they sue me or contact the University/Scholarship Sponsors and how likely is it to happen for only 2 months? I wouldn't want to have anything on my name in case I ever want to visit US again | Anybody who walks out on a lease obligation can be sued for the money that they owe. The only thing that leaving the country adds is complication over the landlord collecting. In principle, A can sue B regardless of the countries that they live in. The landlord would sue you in state court, then would seek enforcement in your country. If your country is North Korea, the North Korean courts may not recognize the US state court claim, but UK courts would because there is a treaty whereby we recognize the judgments of each other courts, at least in areas where our laws agree (i.e. if you walk out on a lease, you still owe the money). | You can read about your rights as a California tenant at http://www.dca.ca.gov/publications/landlordbook/catenant.pdf This is rather ridiculous: 1) No judge will evict someone for paying rent by mail. (I assume you have the new landlord's address.) 2) If the landlord cashes the check you mail then he's not going to be able to claim you didn't pay the rent. If he actually refuses to cash your mailed check then that's all to the good for you. 3) You can ignore any requirements imposed by the new landlord that aren't in the lease, just as the landlord could ignore any new requirement imposed on him by you. Even some terms in a lease can be ignored, because not all terms in a contract are legal. (This is especially the case in tenant-landlord law.) If you think there will be trouble then use certified mail. | I am an Ontario-licensed lawyer. The following is a general information about the law and not specific legal advice. You are not my client and I have not given you advice related to your circumstances. First, even when you ask a generic question, define the jurisdiction of interest. For the purpose of your question, Canada is a collection of different jurisdictions with different rules. My answer relates to Ontario, Canada. Other Canadian jurisdictions have different rules. The Law The applicable Section 109 of Ontario's Residential Tenancies Act http://canlii.ca/t/33p is reproduced below for your convenience. EMPHASES MINE. Receipt for payment 109 (1) A landlord shall provide FREE OF CHARGE to a tenant or former tenant, on request, a receipt for the payment of any rent, rent deposit, arrears of rent or any other amount paid to the landlord. 2006, c. 17, s. 109 (1). Former tenant (2) Subsection (1) applies to a request by a FORMER TENANT only if the request is made within 12 months after the tenancy terminated. 2006, c. 17, s. 109 (2). Regulation Ontario Regulation 516/06 http://canlii.ca/t/sjx dictates minimal form: Receipt A document constitutes a receipt for the purposes of section 109 of the Act if it includes, at a minimum, (a) the address of the rental unit to which the receipt applies; (b) the name of the tenants to whom the receipt applies; (c) the amount and date for each payment received for any rent, rent deposit, arrears of rent, or any other amount paid to the landlord and shall specify what the payment was for; (d) the name of the landlord of the rental unit; and (e) the signature of the landlord or the landlord’s authorized agent. O. Reg. 516/06, s. 9. Landlord Compliance A good landlord will provide receipts immediately upon payment, and keep a copy. An very good landlord will provide additionally a summary of payments for the year, in tabulated form, and keep a copy of the yearly receipt instead of the multiple receipts for each payment. An excellent landlord will keep the tabulated information in a computer system and will issue a receipt for the whole tenancy period on termination. Keep a copy. Tenant's Application If your Ontario landlord refuse to comply with the above, file a T2 http://www.sjto.gov.on.ca/documents/ltb/Tenant%20Applications%20&%20Instructions/T2.pdf *A T2 can also be filed online. Remember to ask for cost http://www.sjto.gov.on.ca/documents/ltb/Interpretation%20Guidelines/03%20-%20Costs.html | The fact that you're not a native speaker of English doesn't alter the legal situation. If you literally had no understanding of English but for some reason you signed a piece of paper, then you might argue that there was no agreement in the first place, but obviously you do speak some English. Most people don't actually understand what contracts mean (on both sides). Contracts are still enforced, based on what the contract says. The move-in data is proposed, not firm, and it even indicates what the charges are if your circumstances change and the dates have to change (whereas is their circumstances change, they wouldn't have a basis for charging extra). It also does say that there will be no refund if you change your mind. So the piece of paper says "No refund". The problem seems to be that there's an "agent" whose statements you relied on, who is ultimately responsible for this problem, and s/he implied that you could get a refund. It's not clear what kind of "agent" this is (is he working for you, or for the owners?). You'd have a somewhat different legal basis depending on which it is, but you could sue someone in either event, assuming that you could actually persuade the court that you were given false information which you relied on. The statement "they will refund your money if the guy doesn't move out by the 16th" is false; the statement "they may refund your money if the guy doesn't move out by the 16th" is true. If the latter was the statement that you relied on, then you knew (or should have known) that that isn't a promise, it's just a guess, and if you read the piece of paper you know that it's a promise with no basis. So I would say it comes down to establishing what promise was made to you. Arguing that the agent "made" you sign isn't going to get you anywhere (unless you can prove actual coersion). | could they make a realistic claim that I had voluntarily terminated my contract before the year was over? The employer's act would forfeit its entitlement to reimbursement of bonus. The clause clearly indicates that the triggering event is termination, not the anticipatory notification thereof. Furthermore, the employer's act would be a breach of the [contract law] covenant of good faith and fair dealing. That would be in stark contrast with your compliance with, and/or kindness in, giving a two-week notice. The employer's termination of your employment seems improper in equity insofar as it was aware of your notice and thus took advantage thereof. | Yes, so long as you are still a US citizen, it does not matter if you no longer maintain residence in the United States. If you no longer have any sort of residence that can be claimed as a current residence, you simply register at whatever the last residence you used was when you lived in the United States (even if someone else lives there now). You would then have an absentee ballot mailed to you overseas. However, if you don't maintain any sort of residence in the United States, you will only be eligible to vote for federal offices (president, senate, house). You won't be allowed to vote in state or local elections. The keywords you'll need for voting are: UOCAVA, which is a program that allows for easier voting overseas (in some cases the ballot can actually be emailed to you and you are only responsible for printing it out, filling it out, and mailing it back). FPCA, which is the form you fill out. It actually doubles as a registration and an absentee ballot request, so you only have to fill out one form. The absentee request is good for all elections in the calendar year it is submitted, so you only have to fill it out once for both the primary and the general. | Even though student status is not on the list of protected classes, this still might be discrimination. By proxy. Status as student can be a proxy for age, race, and/or color. Maybe even religion if there is a religious school nearby! In fairness to the store manager, when a pack of ten kids comes rolling in on the way home from school things can get pretty hectic. Rather than try to kick out the problem kids many managers will attempt to avoid the problem in the first place. Also, a sign like this might help the manager be less discriminatory. For example, let's say he lets all kids in and only kicks out the ones who are causing problems. If those problem kids are all in one protected class and it's different from the kids who don't get kicked out, the manager looks like he's discriminating based on that protected class. Discrimination by proxy can be hard to prove and I am not sure of the burden of proof in Canada. I have read that "Canadian experience" is used as a proxy in employment discrimination and has been getting some attention lately. That might be a good issue to keep an eye on as it may define proxy discrimination jurisprudence. | The basic authority of university staff is summarized here. What seems to be at issue here is whether you have a property right to "access" to the university, as an alumnus. Legal protection of alumnus rights is pretty minimal, contrasted with student or employee rights. There could be a line in the sand pertaining to whether you've paid for something, or are the privileges that you've enjoyed simple part of a PR stunt? If you pay the university for access to university facilities (borrower privileges, for example) then it would be harder to revoke that privilege. Most universities grant a certain level of added privilege, such as an alumnus email account, without any requirement to pay. (They hope to create some good will which translates into donations). So it would really depend on what the basis is for claiming access to university resources, as an alumnus. There is no general obligation of a university to grant alumni various privileges, but they may have created a reasonable expectation and legal right to such privileges, as part of their advertising: that can only be judged by looking at all of the facts. There might be rules within the university which address alumni, so obviously reading the university rules is important. That is really how you would determine whether the coordinator is overstepping her authority. If the university admits that it no longer has jurisdiction over you, then that might be the end of the case, unless that was an error based on less than the totality of the facts. If an accused completely and irrevocably severs relations with a university, the university would have no power over the accused. If there is still a relationship, or if the severance is revocable (i.e. you can become a student again), the university retains some power over an accused. If a student violates the federal regulations pertaining to sex discrimination, the university could be in trouble if they do not address the situation. If the accused leaves the university for a quarter, that does not erase past acts, so the university could be in trouble if they don't address the situation in case of an intervening term off. Thus a legally-viable option would be for a university to permanently remove (unprotected) relations with an accused – not access to transcripts, because of FERPA, but certainly the right to re-enroll or the right to use the library as an alumnus. Again, though, it would depend on what the university rules say. It is highly unlikely that the coordinator has the authority to find facts and mete out punishment (determine that an accused did the act), and this is usually determined by a committee, subject to approval by higher administration. However, an administrator does have the right to limit an individual's relationship to the university in a manner that protects the university's interest. For example, in the event that a person is accused of sexual harassment, the university can temporarily relieve a person of teaching and advising duties, until the case is resolved and there has been a final finding of fact. In general, universities are very protective of their interests and will absolutely squash anything that they think will get them into legal trouble. All that is necessary is that there be a credible basis for the claim – often, that means simply "an accusation". If a complainant vigorously pursues a case, the university could be in trouble because the law allows punishment (loss of funds) in case of a single past violation of the regulations. Their interest therefore is being sure that they have remediated the situation (the stronger course of action), or the complainant has given up (risky since the complainant can change their mind). |
How to transport a knife that falls under the Weapons Act In Germany, there is a law (Weapons Act) that prohibits the carrying of a knife with a blade length of 12 cm. "Fixed knives with a blade length of more than 12 centimetres, any knives classified as cutting and thrusting weapons and folding knives that can be unfolded with one hand may not be carried in public." Now I wonder what it's like to buy such a knife in a shop and take it home. Is that already prohibited? | Obviously, there are plenty of kitchen knives over 12 cm in length. A knife that is legal for home use be carried outside the home in an enclosed compartment (verschlossenes Behältnis) which prevents immediate access. So it is forbidden to carry the knife thrust through a belt, or in a jacket pocket, but it can carried in a locked tool box or the like. A shrink-wrapped package also qualifies. To carry it "unwrapped" is forbidden, but there are exceptions to that ban which come down to "reasonable use." A bread knife would be reasonable if it comes with a loaf of bread and all the other implements for a picnic. It is not reasonable in a nightclub. A number of knife styles or cutting implements are generally forbidden, no matter how they are carried or stored. | I think that there won't be any trouble from Germany, but the US could be a problem if the girl reports the case to authorities. In that case, further details would depend on the state in question. As far as Germany is concerned, there are two sections in the penal code that could be relevant here: § 176 StGB - Sexual abuse of children § 182 StGB - Sexual abuse of juveniles To make things more complicated, we would also have to take into account juvenile penal law and whether Germany would have jurisdiction in the first place. 1) Jurisdiction: I'm not sure whether this case would fall into German jurisdiction under § 3 StGB as the case could be deemed to be committed in the US. However, in that case, Germany could still assume jurisdiction under § 5 item 8 StGB. 2) Since our guy was only 18, it would be at the discretion of the court to decide whether juvenile criminal law or regular criminal law is to be applied. In the former case, the sentence would be lower (if there is a sentence at all). But then we still have to figure out whether our guy broke a law in the first place. So first of all, let's take a look at § 176 StGB: “Section 176 Sexual abuse of children (1) Whoever performs sexual acts on a person under 14 years of age (child) or has the child perform sexual acts on them incurs a penalty of imprisonment for a term of between six months and 10 years. (2) Whoever causes a child to perform sexual acts on a third person or has a third person perform sexual acts on the child incurs the same penalty. (3) In especially serious cases, the penalty is imprisonment for a term of at least one year. (4) Whoever 1. performs sexual acts in the presence of a child, 2. causes the child to perform sexual acts, unless the act is subject to a penalty under subsection (1) or subsection (2), 3. influences a child by way of material (section 11 (3)) or information and communication technologies a) in order to cause the child to perform sexual acts on or in the presence of the offender or a third person or to have the offender or a third person perform sexual acts on the child or b) in order to commit an offence under section 184b (1) no. 3 or under section 184b (3) or 4. influences a child by showing pornographic images or depictions, by playing pornographic audio recordings, making pornographic content available by way of information and communication technologies or pornographic speech incurs a penalty of imprisonment for a term of between three months and five years. (5) Whoever offers or promises to supply a child for an offence under subsections (1) to (4) or who arranges with another to commit such an offence incurs a penalty of imprisonment for a term of between three months and five years. (6) The attempt is punishable; this does not apply to offences under subsection (4) nos. 3 and 4 and subsection (5).” Since the girl is 15 years old, this section is probably not relevant. However, to know for sure, we would need to know her exact age when contact started. If she was only 13 years and 11 months and contact lasted 1 year and 2 months, then § 176 might be relevant after all. That takes us to § 182. “Section 182 Sexual abuse of juveniles (1) Whoever abuses a person under 18 years of age by taking advantage of a predicament by 1. performing sexual acts on that person or having said person perform sexual acts on them or 2. causing the person to perform sexual acts on a third person or to have sexual acts performed on them by a third person incurs a penalty of imprisonment for a term not exceeding five years or a fine. (2) A person over 18 years of age who abuses a person under 18 years of age by performing sexual acts on that person or having that person perform sexual acts on them for a consideration incurs the same penalty. (3) A person over 21 years of age who abuses a person under 16 years of age by 1. performing sexual acts on that person or having that person perform sexual acts on them or 2. causing that person to perform sexual acts on a third person or to have a third person perform sexual acts on that person, and thereby exploits the victim’s lack of capacity for sexual self-determination, incurs a penalty of imprisonment for a term not exceeding three years or a fine. (4) The attempt is punishable. (5) In the cases under subsection (3), the offence is prosecuted only upon request, unless the prosecuting authority deems there to be a special public interest in prosecution which calls for ex officio intervention. (6) In the cases under subsections (1) to (3), the court may dispense with imposing a penalty pursuant to these provisions if, having regard to the conduct of the person against whom the offence was committed, the wrongfulness of the act is minor.” § 182 para. 1 StGB applies only to cases where the offender takes advantage of a predicament. I seriously doubt there's a predicament involved here. § 182 para. 2 StGB only applies for sexual acts for consideration, i. e. when money is being paid. Since apparantly there was no payment involved in this case, no problem here and we can go on to para. 3. § 182 para. 3 StGB only applies to cases where the victim lacks the capacity for self-determination and the offender is at least 21 years old. Neither is the case here. Summary: As far as Germany is concerned, there's no trouble to be expected under § 182 StGB. § 176 StGB might cause problems but only if the girl was under 14 when contact began. (You stated that she's 15. This could mean that she just turned 15 but was 13 years and 11 months when contact began.) As far as German law is concerned, it looks like our guy was overly cautious and there was no need to cut contact. From the US perspective, however, things will probably be different. I'm not familiar with US law but we would probably need to know the state in question. | Who in the fraternity would be prosecuted if this became an issue? A lot of people could be held liable for this, including people who are not even in the fraternity. Anyone who has knowledge of the machine or the fact that it was possible for minors to access alcohol through it could technically be held liable if a prosecutor wanted to make that case. Presumably the building is owned by someone else and just leased out to fraternity members, and they very well could be held liable for sale to minors also. Would the machine be safer if it just accepted cash (so that no electronic paper trail was created), with a big warning sign WINK WINK that anyone under the age of 21 was strictly prohibited from purchasing from it? No. Payment method is irrelevant here. There are a number of states that legally allow vending machines to sell alcohol, but vendors are required to verify the age of any person accessing them and ensure that those cards aren't being used by people not authorized. What you describe is an extremely relaxed environment where admittedly no one is attempting to verify identities. The "accepting cash" scenario is no different than a liquor store selling alcohol to anyone that comes in just because they're willing to pay with cash instead of a credit card. Sales to minors laws are not "as long as you warn them, you're safe" laws. They require vendors to actively check IDs and ensure that alcohol is not landing in the hands of minors. Accepting cash just to erase the evidence doesn't meet that burden. There are a lot of legal troubles with the situation that could get a lot of people charged with multiple offenses. That you have underage fraternity members living there suggests you should not have alcohol readily accessible in the house at all, as most state laws expressly forbid providing access to alcohol, not just serving or selling. Them being there provides access to it, even if it's just a case in the fridge with a note on it. Not to mention, you technically cannot sell alcohol, as I highly doubt your fraternity has a liquor license to be able to do so. There's a big difference between asking everyone to pitch in to buy the case versus actively selling individual cans through a vending machine. The vending machine itself is violating liquor laws in your state merely by existing. | There are no rules against private sales of firearms in Arizona. If you (or your mother) own the guns, you can sell them to anyone you like unless you have reason to believe they are a prohibited possessor. There is no legal requirement for you to validate their identity. There is no limit on the number of guns you can sell to one person. A bill of sale is optional. You don't need a lawyer and, honestly, I'm not sure what a lawyer would do to help you sell a gun. The laws, being what they are, lead some to conclude that this must be how prohibited possessors get their guns. It's not. Most "illegal" guns are bought through straw purchases in which a person with a clean record buys a gun for someone who is not legally allowed to own one. You can work through a licensed dealer if it makes you feel better. If you don't want to use a dealer, you can simply require that a buyer have a concealed carry license as evidence that they are not a prohibited possessor. The CCW is not a surefire way to guarantee anything though. Personally, I would transact a private party sale with individuals via a dealer. You're in AZ. There is no shortage of gun buyers! At the risk of breaking site rules, you can also list guns online. For example, www.gunbroker.com is a popular site and follows an eBay-style bid structure (I have no affiliation to them). This model ensures that you get market price for the gun rather than trusting that a dealer is going to give you a fair price (they won't; they make their money buying cheap and selling at market rate). | The "Hitlergruß" In germany, statements and even gestures that are identified with the nazi ideology are a criminal offence under StGB §86a (Dissemination of Means of Propaganda of Unconstitutional Organizations) and StGB $130 (Volksverhetzung), leaving a gap only for art, science, research or teaching. This makes the "Hitlergruß" with or without the accompanied statements of "Heil", "Sieg Heil" or "Heil Hitler" an offense that can end you in prison unless you can point to one of the allowed exceptions: up to three years for the dissemination of means of propaganda and at least three months but at max 5 years for Volksverhetzung, especially §130 (3) & (4), the general sentence frame thus would be three months to three years, unless other factors allow for more - the typical sentence is 6 months or a quite hefty fine (some have been known to be 5000 €) austria bans the same gesture and sentences via Verbotsgesetz §3g as promoting the national socialist ideology through means that are not in §3a-f (which span more or less trying to keep the nazi party alive and violent crimes) and punishes it with (theoretically) up to 10 years and for extreme cases double that. In switzerland, the gesture is a hate crime if you promote the nazi ideology with it. slovakia as well es the czech-republic also deem this gesture, with or without the words, a criminal offence (up to 5 years in both parts of former czechoslovakia), sweden deems it a hate crime (see here) and italy deems it the same if associated with the Italian Fascist Party. Several other jurisdictions, including in the united-states, do recognize that performing this form of "speech" can be either a hate crime or an offence against public order of some sort. This makes the gesture of "extending the right arm to neck height and then straightening the hand so that it is parallel to the arm" (and possibly using the 4, 8 or 10 letters together with it) the shortest illegal statement - which atop that is possibly the single statement that is also illegal in the most jurisdictions worldwide and not a true threat. | Gun control laws The moment you enter the 12 nautical miles zone of a country, you need to abide by its weapon laws. Most functioning large-caliber and fully-automatic weapons are not allowed in civilian hands globally. The moment the ship leaves the 12 nautical miles zone, the country law of its flag applies, so unless you happen to start in the US with a duly registered curio/relic deck gun with proper stamps... you'll have a hard time being allowed to have the thing on board in the first place, and entering any other country's water is pretty much violating their gun control laws and gun import laws. Ship hulls don't support them. That deck gun there is a type of Bofors 40mm L/60 twin mounting - 40x311mmR. That means, its installation weighs upwards of half a ton, as that's the smallest carriage setup according to Wikipedia. Navweapons helpfully provides gun weights of roundabout half a ton per gun. That puts the minimum weight at about that of a PAK 40, but as Navweapons tells us, a US Mark 1 Twin clocks in at 4.4 to 5.8 tons including guns. All on the one mounting spot. With the bulk they are, no fiberglass ship hull could support that much load on the gun's small footprint. It needs a steel-hulled superyacht to even bear the deck load of such an installation. If your ship is the size of a coastguard or navy vessel, it probably is such a ship redesigned, a commercial fishing boat (similar specs), a cargo vessel, a large cruise vessel, or built to your specifications from the ground up. | The felon-possession law is Utah Code Ann. §76-10-503, which distinguishes Category I restricted person and Category II restricted person, a complex definitions that distinguish felons in general and violent felons, as defined at Utah Code Ann. § 76-3-203.5. In the case stricter case, the law says: (2) A Category I restricted person who intentionally or knowingly agrees, consents, offers, or arranges to purchase, transfer, possess, use, or have under the person's custody or control, or who intentionally or knowingly purchases, transfers, possesses, uses, or has under the person's custody or control: (a) any firearm is guilty of a second degree felony; or (b) any dangerous weapon other than a firearm is guilty of a third degree felony. and in the less strict case: (3) A Category II restricted person who intentionally or knowingly purchases, transfers, possesses, uses, or has under the person's custody or control: (a) any firearm is guilty of a third degree felony; or (b) any dangerous weapon other than a firearm is guilty of a class A misdemeanor. The law does not impose any restrictions unrestricted people. A "dangerous weapon" is defined in 76-10-501(6)(a) as "a firearm; or an object that in the manner of its use or intended use is capable of causing death or serious bodily injury". They add a bit of subjectivity to their definition of "dangerous weapon" (i.e. "we'll decide after the fact if the thing is a dangerous weapon"), because: (b) The following factors are used in determining whether any object, other than a firearm, is a dangerous weapon: (i) the location and circumstances in which the object was used or possessed; (ii) the primary purpose for which the object was made; (iii) the character of the wound, if any, produced by the object's unlawful use; (iv) the manner in which the object was unlawfully used; (v) whether the manner in which the object is used or possessed constitutes a potential imminent threat to public safety; and (vi) the lawful purposes for which the object may be used. The felon could not have a stun gun with the intent to use it as a dangerous weapon, but it is not prohibited for a felon to have one to use on for legal purposes. There are contexts where stun guns are held to be dangerous weapons (United States v. Wallace, 800 F.2d 1509. Some states define stun guns as dangerous weapons, but that is not the case in Utah. It is also illegal for an unrestricted person to "sell, transfer, or otherwise dispose of any firearm or dangerous weapon to any person, knowing that the recipient is" a restricted person, and in cases of flagrant negligence the court might find that allowing such a person access to a dangerous weapon constituted "transferring" the weapon. | In the U.S. it does not. U.S. has strong Castle Law doctrines and self-defense laws that allow the use of firearms for self-defense within the home. The sign is that the homeowner is armed and will defend himself if there is an intruder. Florida is also a stand your ground state which means that in public, self-defense is valid use of force for civilians even if they have the ability to flee the would be criminal. As anecdotal evidence, when I was living in the state, my boss was telling me the story of how he got a gun and went to do some paperwork at the sheriff's office. When the deputy received the paperwork, he saw that the gun was going to be used for home defense and told my boss, "In the case of home defense, if, God forbid someone enters your home looking to do harm to you and yours, remember: Shoot to kill. It's less paperwork for us." |
Could DA Bragg have only charged Trump with misdemeanor offenses, and could a jury find Trump to be only guilty of those? My understanding is that one of the most legally controversial parts of DA Bragg's indictment of former President Trump is the decision to elevate the charges of falsifying business records — ordinarily a misdemeanor under New York state law — to the felony charges (under New York state law) of doing so with an “intent to defraud [that] includes an intent to commit another crime,” where in this case the "[other] crimes" in question are federal laws. There is arguably some legal ambiguity whether federal laws are included in the "other crimes" portion of the relevant New York state law. Could DA Bragg have only charged Trump with 34 misdemeanor counts, without elevating the charges to felonies? I believe that had he done so, he would not have needed to empanel a grand jury, since misdemeanor-only charges do not require a grand jury vote to indict. I also understand that such an action may have been politically awkward for Bragg, since he campaigned on a promise not to prosecute misdemeanor-only offenses. But would anything else stop him from doing so? Am I correct that if Trump's defense team argues that the law that elevates the misdemeanor charges to felony charges does not apply in this case, because the elevation option does not include federal laws, then since this is a matter of law and not a matter of fact, Judge Mercan (rather than the jury) will decide whether or not to dismiss the felony charges? Does Judge Mercan have the option of dismissing the felony enhancement but allowing the misdemeanor charges to proceed, or would Mercan have to dismiss all charges against Trump? If Trump is brought to trial, then would it be possible for a jury to return a verdict that Trump was guilty of the misdemeanor offenses of falsifying business records but innocent of doing so with an intent to commit another crime? If so, then could Trump still be found guilty of the misdemeanors, or would he be fully acquitted, since the jury ruled that he was not guilty of the exact charges that DA Bragg filed? | Could DA Bragg have only charged Trump with 34 misdemeanor counts, without elevating the charges to felonies? Yes. if Trump's defense team argues that the law that elevates the misdemeanor charges to felony charges does not apply in this case, because the elevation option does not include federal laws, then since this is a matter of law and not a matter of fact, Judge Mercan (rather than the jury) will decide whether or not to dismiss the felony charges? Yes. Does Judge Mercan have the option of dismissing the felony enhancement but allowing the misdemeanor charges to proceed, or would Mercan have to dismiss all charges against Trump? Judge Mercan could probably choose either option if he found that the original charges were not supported by the law. There is law regarding how this decision is made but I personally don't know that area of law well. One of the reason that I am unfamiliar with it is that it is exceedingly rare for a judge to conclude that the prosecutor's charges are not supported by the law. I would be very surprised if that judge reached that conclusion in this case, in particular, because both federal election law violations and state and federal tax law violations are implicated by the indictment. The DA no doubt legally researched this issue exhaustively before presenting the charges to the grand jury and has made out a prima facie case for a felony under the applicable New York State law. If Trump is brought to trial, then would it be possible for a jury to return a verdict that Trump was guilty of the misdemeanor offenses of falsifying business records but innocent of doing so with an intent to commit another crime? If so, then could Trump still be found guilty of the misdemeanors, or would he be fully acquitted, since the jury ruled that he was not guilty of the exact charges that DA Bragg filed? Whether a jury is presented with a lesser included offense charge at the request of the defense, is partially a matter of the prosecution's election to make that option available or not, and partially a matter of the judge's decision on how to handle it. The body of law involved in how this decision is handled on a case by case basis is quite involved. Most of the case law involves homicide cases, assault cases, and property crime cases where there are charges with are identical except for aggravating factors for the most serious charges. But, lesser charges generally aren't presented if based upon the evidence presented at trial, either the more serious charge is established or no charge is proven. For example, if the defendant presents an alibi defense, and a witness whose credibility is disputed places the defendant at the scene intentionally committing a crime, a lesser included offense charge would not be appropriate. But, if the defendant admits hitting a pedestrian and causing the pedestrian's death, but claims that the pedestrian was at fault in the accident for jay walking, while the prosecution alleges that the pedestrian was intentionally struck as part of a mafia hit, multiple lesser included offenses would probably be charged involving different levels of intent of premeditated intent/aggravated circumstances killing (first degree murder), to a knowing killing (second degree murder), to a reckless killing (manslaughter), to a criminally negligent homicide or vehicular homicide charge. Typically, the decision on this point would not be made until all evidence was received and the judge in a hearing away from the jury but in the presence of the prosecutors and defense counsel crafted jury instructions based upon the evidence presented at trial and the arguments raised by counsel at trial. | You'd have to specify the cases you want. All court transcripts are a matter of public record, though a copy may cost you a fee from the court clerk's office to recieve. It should be pointed out that not all cases got to an evidentiary stage to actually evaluate on the record any evidence. A vast majority were decided on pre-evidentiary rules such as standing or laches (timeliness) and not all cases that were able induced evidence debunked the evidence. Any appellent case would also not induce evidence as all appeals cases are strictly matter of law rather than matter of fact (evidence), so those cases would be asking a higher court to double check non-evidentiary decisions. The fact that the party that brought the suit does not have standing to bring the suit OR that the party that brought the suit brought it too late for the courts to proceed on the matter does not debunk evidence that the fraud happened in the eyes of the law... it simply means the questions of fact were never addressed at all | If the question asks, "did you do X" where X is or includes a crime that you could be criminally prosecuted for, you can invoke the 5th amendment in refusing to answer that. I have seen that done and seen that objection to the question sustained in court. However, if admitting to X would provide only civil liability, then the 5th would not apply. At trial, you may also have to take care not to give direct testimony on things that are so closely related that you "open the door" to being required to answer that question. For example, you can't say "I don't owe because I did X" and then expect to not have to answer "So just to be clear, did you do X?" Also, depending on context, invoking the 5th might cause a jury to view your testimony more skeptically (cpast points out that "For civil cases, adverse inferences based on pleading the fifth are totally okay"), and if that's going to come up you should ask your attorney about whether or not it'd be a good idea strategically. | There are many different kinds of laws, and many different ways of violating them. The main two are (1) criminal law, which generally addresses violations that injure the government's interests; and (2) civil law, which largely addresses violations that injure private parties' interests. Some conduct can violate both sets of laws: If you steal something from a store, the government can put you in jail for theft, and the store can sue you for the value of the item you stole. If you punch someone in the face, the government can can put you in jail for assault, and the person you punched can sue you to pay for their hospital bills. If you grope a woman in a dressing room, the government can put you in jail for sexual assault, and the woman can sue you for battery. Donald Trump falls into that last category. Jean Carroll has sued him for battery, but the government cannot prosecute Trump for the crime because enough time has passed that the criminal statute of limitations has expired. Moreover, a civil trial cannot subject someone to jail time because such a deprivation of liberty requires greater procedural safeguards -- jury unanimity, proof beyond a reasonable doubt, etc. -- that do not always apply to civil trials like this. Trump's status as ex-president has no bearing on the penalties the court may legally impose on him. | First of all, there is a distinction between being impeached and being convicted. Trump was impeached when the House voted to adopt an Article of Impeachment. That happened while he was still in office. He will not be convicted until the Senate votes to convict him by a 2/3rds vote, if it ever does. In the case of Nixon, the House had not yet voted to adopt Articles of Impeachment when he resigned. They had been introduced and debated, but not yet finally approved. Moreover, we don't know what would have happened if the House had proceeded to pass such articles after Nixon had resigned. The House of that time did not choose to proceed. There was no court ruling saying that they could not do so. There are some precedents saying that the Senate can proceed with a trial after an official resigns or is expelled after impeachment. None of these are at all recent, none are clear cut, none involved an official whose term had ended, none involved a President, and none that I am aware of led to a conviction. And this issue has never been tested in a Federal court. Specifically, there is the case of William Belknap. Belknap was Secretary of War under US President Grant. He was accused of improperly profiting from military contracts. The House started impeachment proceedings. Grant interviewed Belknap, who confessed to Grant and resigned on the spot. The house none the less pass five articles of impeachment after Belknap resigned. When the Senate took up the case, there was a motion to dismiss on the ground that the Senate did not have jurisdiction because of Belknap's resignation. By a vote of 37–29 the Senate held that it had jurisdiction and that a trial should proceed. The vote to convict Belknap was 35 for conviction, 25 against it. This was five votes short of the required 2/3rds to convict. Most of the Senators voting against conviction were on record as doing so because they did not agree that the Senate had jurisdiction. Thus a majority vote of the Senate held in that case that such a trial was proper, but less than 2/3rds. (Most also indicted that they thought the charges true.) There was also the case of William Blount. Blount, a Senator, was impeached by the House in 1798. (In fact this was the first impeachment ever under the US Constitution.) The Senate voted to expel him. When the articles of impeachment came up in 1799, the Senate voted to dismiss the impeachment, on the ground that the impeachment process did not extend to members of the Senate, but not on the grounds that the expulsion rendered the proceedings moot. Should Trump be convicted by the Senate (which now seems unlikely) he might bring a court case claiming that such a conviction was unconstitutional. There is no knowing how a court would handle such a case. And if Trump is not convicted, no such case will be brought this time, either. This Washington Post opinion piece by two Constitutional scholars claims that such a trial would be constitutionally proper. It also claims that it would not have been proper had the vote to adopt articles of impeachment occurred after Trump had left office. Others have taken different positions. Whether a Senate trial of an impeachment is constitutional after the person impeached has left office is a hotly debated question at the moment. There has never been a court ruling on the point, and neither of the precedents is of a situation quite matching the current impeachment of Trump. No court has ruled on the matter. The Senate did not vote for a motion to dismiss the impeachment on those grounds, although if every senator who voted for the motion voted to acquit, Trump would not be convicted. From the comments I wish that any downvoters would leave a comment indicting what thy think is wring with this answer. In the absence of a comment, I cannot improve the answer, others cannot use the reasons to write better answers, and readers have no idea why someone objects to the answer. Such a downvote seems pointless. I have updated this answer with a discussion of the Blount and Belknap precedents. In neither case did the Senate actually vote to dismiss the articles because the accused was no longer in office, although that seems to be a major reason why 25 senators voted against convicting Belknap. | Can the judge flat out tell the jury that they cannot vote to nullify the verdict? He can but this kind of "jury nullification" makes little sense and is obvious that is not possible. A verdict is rendered by the jury. Once the verdict is rendered, there is no further vote. It would also make little sense for a jury to render a guilty verdict and later have another vote to nullify the previous verdict. From now one I will refer to jury nullification as we usually refer to it: the jury returns a not guilty verdict, although the jury believes the accused is guilty of the crime (rather than returning a guilty verdict and later nullify it, which is what you are implying here) A different question would be "can the judge ask the jury to not engage in jury nullification"? Yes he/she can. A judge can respond that jury nullification is not possible. If the jury convicts, this false information by the judge is generally deemed a harmless error on appeal, and the conviction is upheld If the judge did so and the jury chooses to nullify the verdict anyways would the fact that the judge forbade them to do so have any impact on what happens from that point forward? No. Jury nullification is part and parcel of common law, and it could well be part of the "jury trial" granted by the Constitution. Would the jury risk repercussions for nullifying a verdict against the judges orders? Only for jury nullification no. They can face repercussions if they lie in voir dire and say that they will follow the law as given to them no matter what, for example. Finally is there any situation where jury trying to nullify a verdict could phrase their objection incorrectly such that the judge could rule it as a guilty verdict (ie if they say "we think you proved the plaintiff did this thing, but we don't believe he should be punished" can the judge rule that they said he was guilty and just ignore the second half?) Juries return a guilty/not guilty verdict. They don't return their thoughts to the court ("we think that...."). They simply say "guilty" or "not guilty". If for some unknown reason they should choose to tell the judge more than what is required from them, jury nullification is still an option of the jury and something that the jury can do, have the right to do, so the judge will not be able to override the jury. But this is something that should not happen. If the jury wants to engage in jury nullification, they have to tell the judge "not guilty" and nothing more. The jury doesn't have to explain its decision to acquit. | In all cases of speech in U.S. Jurisprudence, the speech uttered is presumed First Amendment Protected unless proven otherwise. Critical to this proof is the intent of the speaker and his/her word choice and usage. In order to prove that Trump uttered unprotected speech, the prosecution must show that the language was deliberately spoken by Trump to promote Imminent Lawless Action (Brandenberg v. Ohio). That means that not only must the actions come with a defined time of action, but it also means that you have to prove Mens Rea - that Trump knew in his mind at the time he spoke that the words would incite. Finally, you cannot cherry pick a quote but rather must view the totality of the events in question. Trump did make statements against violence prior to and following the speech in question, which suggests he was not advocating for violent actions taken that day. The word "fight" which does not always mean a violent. Miriam-Webster's definition of "to fight" is: 1 : to struggle in battle or in physical combat. 2 : to argue angrily : quarrel. 3 : to try hard While the first definition of the word does indicate physical violence, but the second and third are possible to do with no violence whatsoever. The concept of fighting for something is often used by people at constitutionally protected protests and gatherings and the use of the term has never been used to convict the speaker for the misinterpretation of the words by the person who hears them. If this were the case, you can expect the Beastie Boys to get slapped with criminal charges for their advocacy of fighting for the right to Party (incidentally, the song never once advocates for violence in the pursuit of wild teen parties... it's merely a list of the restrictions and hypocrisies of the rule makers and enforcers). What's more, Mafia Dons don't normally go down for specific instructions to "kill the mook" but rather for RICO charges. Their whole organization is corrupt and thus they can be held responsible for the corrupt actions of people in their chain of command in the organization. There has yet to be any evidence supporting that Trump knew and participated in the planning of the assault on Congress. Yes, there was planning prior to the events, which means people would have done this without Trump's speech... which means they were not instructed specifically by him at the time. Trump could have said something different and the results would be the same. On top of that... the violence at Congress was started during Trumps speech, not after it... and the place where the speech was given was far enough away from Capitol Hill that it would be difficult to argue that the first wave of rioters even heard the speech let alone were influenced by it. You can believe this was Trumps goal all you want, but the fact of the matter is the law says that Trump does not have to do anything to prove his intent. The burden of proof rests with he who doubts is enforce and in order to prove the speech was unprotected, you have to show clear evidence Trump did intend for the riot to happen. | "Since state level crimes are prosecuted in the state they happen and potential jurors are eligible voters, would this make it impossible for anyone who voted in the election to serve on such a jury as they would obviously prefer their side to win?" No. A conflict of interest is a particularized and personal interest in the case that is different from an interest of a member of the general public or of a voter or of a taxpayer in general. Someone who wouldn't have standing to bring a case will generally not have a conflict of interest for purposes of being a juror. |
What characters are allowable in a US name? Someone mentioned to me that they ran into someone with "Æ" (the AE grapheme) in their name, which got me wondering what characters are allowable in the US. I've done a bit of research and found that it seems like name changing, baby registration, (and maybe immigration?) are state specific forms, though do have to be followed by a federal request to get your social security card. All of the state specific forms and the social security forms I've been able to find don't have any information on what is allowable characters. They are all forms to be printed out and hand filled in so presumably any character you can write legibly can be submitted, though, presumably, may not be accepted. The only information I was able to find was california only allows the 26 letters and don't even allow accents or anything else. But that doesn't really answer the questions for other states or for social security. I would assume that the printers/software/process used to print out social security cards would only allow a specific set of characters that is probably far shot of all of Unicode, but I can't validate that. I understand the answer might be different by state, so don't expect an answer that covers all 50 states, though it seems like the social security answer would override other answers. NOTE: I'm just curious about this and don't actually want to change my own name or name a kid with numbers/symbols/emojis/etc. | There is ultimately no meaningful regulation of name choice in the United States, but failing to follow convention can be a pain. Many countries have far more rigorous regulation of names and often require that a name be on a pre-approved list or at least that it receive advanced governmental approval. For example, I changed my surname when I married from "Willeke" to "Oh-Willeke" but many private and governmental computer systems do not accept hyphens in names. Non-standard characters and different kinds of punctuation pose similar issues. For example, most databases cannot handle Greek/Cyrillic alphabet characters such as "π" so they would have to spelled out "Pi" for inclusion in many databases. For example, I am not certain that the databases of most government agencies, even in Colorado which has a large Hispanic population, are capable of distinguishing between ñ and n. Similarly, I am sure that "Æ" (the AE grapheme) would be recorded as "ae" in most computerized databases and on most identification documents. Likewise, few identification document systems or computer databases can process Korean Hangul characters, so my children's middle names are in a particular romanization of the true and correct Hangul spelling of those names. Various agencies such as vital statistics departments and driver's license bureaus have practical limitations on their ability to input information into computer systems, but that doesn't really limit a true name, which at common law could be changed without resort to the court system or any bureaucracy, something which remains the law in Colorado. The bottom line is that even if your name in its true form has a representation in symbols that a database can't process and that really and truly is recognized in the law as your legal name, as a matter of practical reality, many entities that deal with names will be limited to a romanization of those names. Consider the following excerpt from a court of appeals case in Colorado that explains the underlying law: Walter Knight, an inmate of the State Prison, petitioned the district court to change his name to Sundiata Simba. His reasons were 'to acknowledge the heritage of (his) past, and to Fortify (his) acceptance of (his) religious beliefs as required by (his) faith.' Nine months later, the request was denied. We reverse. The statute under which the petition was filed, § 13--15--101, C.R.S.1973, provides that the court must approve the change of name if it is 'satisfied that the desired change would be proper, and not detrimental to the interests of any other person.' Here, the court held that the change would not be 'proper' because Knight has a lengthy criminal record, is incarcerated, and an F.B.I. 'rap' sheet is extant which lists him under his present name. However, there was no evidence Before the court as to how the name change would be prejudicial to prison or police authorities. Therefore, we do not consider any of these reasons, without additional proof, as sufficient basis for the court to conclude that the change of name would be improper. In this day when a Lew Alcindor elects to be known as Kareem Abdul-Jabbar, and Cassius Clay opts for Muhammad Ali, the desire of Walter Knight to reflect his African heritage by adopting the [36 Colo.App. 189] name Sundiata Simba should not be dismissed lightly. Cf. Petition of Rusconi, 341 Mass. 167, 167 N.E.2d 847. At common law, a person could adopt another name at will. Statutes setting forth procedures to be followed in changing a name merely provide an additional method for making the change. See 57 Am.Jur.2d Name §§ 10 and 11. It is more advantageous to the state to have the statutory method of changing names followed, Application of McGehee, 147 Cal.App.2d 25, 304 P.2d 167, and for that reason applications under the statute should be encouraged, Petition of Buyarsky, 322 Mass. 335, 77 N.E.2d 216, and generally should be granted unless made for a wrongful or fraudulent purpose. Application of Ferris, 178 Misc. 534, 34 N.Y.S.2d 909. See generally Annot., 110 A.L.R. 219. While a court has wide discretion in matters of this type, it should not deny the application for a change of name as being improper unless special circumstances or facts are found to exist. Included in these would be 'unworthy motive, the possibility of fraud on the public, or the choice of a name that is bizarre, unduly lengthy, ridiculous or offensive to common decency and good taste.' In re M., 91 N.J.Super. 296, 219 A.2d 906; See Petition of Rusconi, supra. Likewise, there is authority to deny the change if the interests of a wife or child of the applicant would be adversely affected thereby. See Annot., 53 A.L.R.2d 914. We do not suggest that a court must grant every petition for change of name; rather, we hold that some substantial reason must exist for denying such petition, and that none appears in the record Before us. See In Re Ross, 8 Cal.2d 608, 67 P.2d 94. Before a court denies a request for a change of name under the statute, it should conduct an evidentiary hearing to determine if good and sufficient cause exists to deny the application. Cf. Henderson v. Industrial Commission, Colo.App., 529 P.2d 651. In re Knight, 36 Colo.App. 187, 188-189, 537 P.2d 1085, 1086 (1975). See also In re Cruchelow, 926 P.2d 833, 834 (Utah 1996) (at common law an individual had a right to change his or her name at will); In re Porter, 31 P.3d 519 (Utah 2001) (it was an abuse of discretion to deny someone's request to change his name to Santa Claus); In re Mokiligon, 106 P.3d 584 (N.M.App. 2004) (summarily reversing a trial court's refusal to allow a name change from "Snaphappy Fishsuit Mokiligon" to "Variable"). In 2008, when the Colorado DMV prohibited newlywed women from changing their middle names to their maiden name and then adopting the surname of their spouses, this regulation caused such an outcry that it was promptly dropped at the insistence of the Governor, but the state DMV still requires court recognition for more significant name changes. The offending rule is found in the Colorado Code of Regulations at 1 CCR 204-13 Part 2.3.5, and relies on Colorado Revised Statutes § 42-2-107(2) and § 42-2-302(2), C.R.S., for authority. But, neither statute actually purports to limit the means by which someone may change their name in Colorado. They simply require that your state ID or driver's license have your name on it. The replacement rule, which is still far more rigid than the case law which recognized a common law right to change your name at any time with or without a court application to do so stated: 2.3.5 A certified certificate of marriage, decree of dissolution of marriage or legal separation issued by any Native American Tribal court or an authorized government agency or court of the United States, any territory, or state of the United States, or any of their political subdivisions, or any court-ordered name change entered by any state or federal court may be used to modify the full legal name of the applicant. 2.3.5.1 Name change as a result of marriage shall be subject to the following conventions: (1) the existing last name is replaced with the spouse’s last name; (2) the existing last name is added as a second middle name and the spouse’s last name becomes the applicant’s last name; (3) the existing last name replaces the existing middle name and the spouse’s last name becomes the applicant’s last name; (4) the spouse’s last name replaces the existing middle name and the existing last name remains the applicant’s last name; (5) the spouse’s last name is added before or after the existing last name via a hyphen or space and becomes the applicant’s last name. 2.3.5.2 All non-court-ordered name changes will require completion, and submission to the department, of the Affidavit of Name Change for a Colorado driver’s license or identification card, form DR-2203. | Financial institutions in the US are subject to regulations that restrict what sorts of things non-licensed employees can talk about with clients and advice they can give about structuring accounts and payments in ways that might avoid triggering money laundering alarms. I think this employee was being cautious about getting into a gray area and phrased the reason they couldn't talk about it poorly. The reason they were restricted from giving you an answer could be a legality, but not necessarily because they are giving you legal advice. | If you are Donald Trump posting under an assumed name then it is illegal, because he is currently president of the USA and not supposed to run any businesses. If you are not Donald Trump, then be aware that Donald Trump owns a trademark for "Donald Trump" according to this site https://onlinetrademarkattorneys.com/donald-trump-trademarks/ so you will be infringing on his trademark. | Generally, no matter where you are, the answer to your question(s) is largely going to be a fact dependent analysis. Just so we're clear, I want to be sure you're using the term pseudonym in the way that it's generally accepted or understood to mean, being a fictitious name typically used by an author (this could be book, blog, a paper – whatever); but not as an alias or a false identity used to mislead people about your qualifications or official position. Assuming you are using a pseudonym in the way it would typically be used: as a mechanism to write and publish under a name other than your own so as not to have credit, or discredit be given to your actual identity, than I cannot see this being a problem anywhere, nor could I find any laws that pertain to this. (You've not asked about copyright/trademark, which poses different legal issues but is also not insurmountable if done correctly.) Generally, if you are publishing something, you have the right to publish anonymously or use a nom de plume (aka:a pseudonym or pen name)...this has been done throughout history and throughout the world by many famous authors. Reasons differ and the examples for such are endless. I have heard of a famous "pulp" fiction writer having used one when writing a children's books; people do it to overcome biases and exposure associated with their name (both positive and negative); during WWII Jewish authors used them to avoid being discounted or arrested based on their name and lineage. In the 1700's (when the U.S. was coming into its infancy) many writers and journalists used pseudonyms, and while the use itself wasn't illegal, they did so to write controversial and often illegal articles, papers, and even letters to the editor, that criticized governments or monarchies and their practices. Some of the most famous pseudonyms were for that purpose. Ben Franklin used to almost exclusively write under a pen name and create elaborate characters to go along with them. Famous authors like Dean Koontz and Stephen King, both used pen names when trying out new genre's or to avoid over-exposure – especially when releasing at the same time. Many famous women authors, throughout history, used to write under male pen names because women couldn't be published or at least not as easily. Most famously was probably the Federalist (Federalist Papers), written by James Madison, Alexander Hamilton, and John Jay (under the pseudonym Publius), who published 80 or so papers calling for the ratification of the United States Constitution. These were very dangerous writings for their time. When I read your question, however, I worry that you seem to be suggesting something other than simply a pseudonym for these various typical purposes. Maybe I'm wrong, but when you say hide behind, and you are talking about using Ph.D., or Dr., or some other title that would denote special education or training, you are treading into different territory if the purpose is to mislead or misinform people: not about who you are, but about what you know based on who you are. There is a big difference. So, for instance, Dr. Seuss (who actually began his career writing and drawing political parodies and cartoons) wrote children's books using Dr. as part of his nom du plume, which was his prerogative as nobody was mislead or harmed by the fact that he chose to put Dr. in front of his name. He was not posing as a doctor or giving advice about medical issues, so nobody detrimentally relied on his writings based on that fact. However, if someone wrote a non-fiction book about life saving holistic cures for cancer (I'm just pulling topics out of my head), and the author called himself Dr. Doe, or you write a book about prevention of suicide and you put Ph.D. after your name, and people who read the books detrimentally rely on the information because you've mislead them about your expertise – that is not just a pseudonym and it could definitely leave you vulnerable to legal problems. You cannot hide behind a title to exploit people by suggesting you're qualified to proffer information in which you have no training or expertise; this is not a nom du plume, it is a fraudulent misrepresentation. With regard to whether or not you have a right to hide behind a pseudonym on the internet? E.g., assuming I don't break any laws, can an internet host/provider publish my real name? that really depends on the site you post on. It is your responsibility to read their privacy disclosures to find out. Facebook, for example, has a "real name" policy, which disallows this practice. Other sites may allow you to create any screen name you want, but require a real name for registration purposes for a variety of reasons, one being if they need to have it for law enforcement purposes. Regardless of the policy of the web host, if you do break the law, or end up getting sued based on your writings, all it would take to reveal your identity is a subpoena arising out of a lawsuit. While using a pen name is seemingly legal in and of itself, pretty much anywhere, whether or not doing so could lead to criminal or civil liability, or whether your real identity could be exposed, is largely dependent on how you undertake to use your fake identity. Impersonating certain licensed professionals, or government officials can be a very slippery slope, and could be illegal or lead to liability, in an of itself. Personally, I would stay away from using any. | If you are a citizen of Cyprus, you fill out the name change affidavit on a form available form your District Administrative Office before a notary, submit it with 80 Euros, and hope that the Registrar at the District Administrative Office approves your application. Your affidavit will state, among other things, your proposed name, which must be acceptable by Cyprus standards, and your reason for the change, which probably shouldn't be "to assist me in avoiding an outstanding warrant for my arrest for murder and high treason against the government of Cyprus" or "to steal the identity of my next door neighbor." If it is approved, you are done and can now go about the arduous process of changing your name with everyone you need to do business with from bank accounts to property registries to ID cards and passports to leases to car titles to professional licenses. If it isn't, you figure out why and either change your application accordingly or see if you can find an attorney to help you contest the denial in the appropriate tribunal. If you are not a citizen of Cyprus, you probably need to go to the country in the E.U. where you are a citizen, if there is one. | A trademark can't prevent you from using your own name. For example, see Canada's Trademark Act Section 12(1)(a): Subject to section 13, a trade-mark is registrable if it is not a word that is primarily merely the name or the surname of an individual who is living or has died within the preceding thirty years; However, marks that are "primarily merely" a name or surname can eventually gain distinctiveness in association with a product. In that case, the registration may be allowed. Even so, Section 20(1.1)(a) provides an exception that lets you use your own name, regardless of whether somebody else has registered the mark: The registration of a trade-mark does not prevent a person from making, in a manner that is not likely to have the effect of depreciating the value of the goodwill attaching to the trade-mark, any bona fide use of his or her personal name as a trade-name. The US is similar. See 15 USC § 1052(e), which precludes registration of a mark that is "primarily merely a surname." This relatively uniform treatment of personal names is due in part to the TRIPS Agreement. See Article 24, paragraph 8: The provisions of this Section shall in no way prejudice the right of any person to use, in the course of trade, that person's name or the name of that person's predecessor in business, except where such name is used in such a manner as to mislead the public. | Under 28 Pa. Code 1.6, The child of an unmarried woman may be registered with any surname requested by the mother. If no other surname is so requested, the child shall be registered with the mother’s surname Registration is the point at which there is parental discretion. Subsequently, a name change is possible by court order, however as maintained in numerous cases including in re: Niedbala, 36 Pa. D. & C. 3d 397 When the court, however, is confronted with the question of whether to amend or change the surname of a child, lacking sufficient understanding to choose for herself, then the court must not consider protectible parental interests or whether the parents are married, divorced or never married or whether they are male or female, but rather the child's best interests As stated in that ruling, the court will then consider the child's preference; the effect of the change on the preservation and development of the child's relationship with each parent; how long the child has used one vs. the other name. Pennsylvania law on child support is rather long, but there is no provision whereby only a married father or mother can be held liable for support. It is probable that the father was legally established as the biological father, and that would, according to these guys, allow you to have your name put on the birth certificate and perhaps even gain custody. | I have never heard of anything like this. I guess when you say "registered in that place" you are referring to Russian resident registration. The US doesn't have such a system, so this sort of certificate wouldn't even make sense. |
Is there a loophole in the GPL allowing binary-only distribution? I asked this question a long time ago here, which was the wrong place, and got a bunch of conflicting answers from a bunch of non-lawyers. I'm hoping for a more definitive answer here, ideally from some actual lawyers. To be clear, I'm interested in understanding the legal truth - what would likely happen in a dispute that went to court, where a judgement would have to be based on the actual wording in the license - not what the goal of the GPL is, the meaning of software freedom, what's morally correct, etc. To be clear, I'm not intending to exploit any such loophole, if it exists. My goal is to understand if the GPL could have a specific weakness in the face of a determined adversary, so that weakness could possibly be addressed. Original question follows: ======================== I have two "dumb questions" but their combination is somewhat surprising ... Suppose I create some new program from scratch by writing source code S, which I keep private, and then compiling S into a binary object X. Then I publicly release X (but not S) on my website under the GPLv3 license. Dumb Question #1: am I in any way required to make S public? Seems like here the answer is "no": the GPLv3 is a license, with restrictions, that is granted to, and applies to, the recipients of some work (in this case the work is X). The license does not apply to me because I'm the one offering the license, not accepting it. So it appears there is absolutely no obligation for me to ever provide source code S to anyone. Of course, any recipient of X is still free to copy and distribute the binary X to anyone they want: the GPLv3 only requires them to also provide whatever source came with it, which is none. So far so good... next consider this clause in the Affero GPLv3 (section 13): Notwithstanding any other provision of this License, you have permission to link or combine any covered work with a work licensed under version 3 of the GNU General Public License into a single combined work, and to convey the resulting work. The terms of this License will continue to apply to the part which is the covered work, but the work with which it is combined will remain governed by version 3 of the GNU General Public License. So that sounds like I can take my binary file X, which is licensed under GPLv3, link it with an unmodified, third-party, AGPLv3 licensed library Y, creating a combined binary Z, and distribute Z under this clause. When distributing Z, I will have to provide the source that came with Y of course per the AGPLv3, but by the above exception, the part of Z that is X is still under the GPLv3, and by the answer to Dumb Question #1, its source code can remain private. Note that the GPLv3 has a symmetrical clause as well, this works with both GPLv3 or AGPLv3 third-party libraries: Notwithstanding any other provision of this License, you have permission to link or combine any covered work with a work licensed under version 3 of the GNU Affero General Public License into a single combined work, and to convey the resulting work. The terms of this License will continue to apply to the part which is the covered work, but the special requirements of the GNU Affero General Public License, section 13, concerning interaction through a network will apply to the combination as such. Dumb Question #2: Does this logic not mean that there is a simple, legal way to combine (i.e., compile and link together) and distribute proprietary code with GPLv3 or AGPLv3 third-party libraries, without having to disclose the proprietary source code, as long as you are willing to allow your proprietary binary to be distributed freely? Do any companies already do this, e.g., for binary firmware that can be incorporated into Linux? | There is no loophole because a work released in object code form only — without the Corresponding Source — is not released under GPLv3, even if you say it is. GPLv3 only requires them to also provide whatever source came with it False. Providing the Corresponding Source is compulsory (§6 as pointed by @cHao). If they do not have access to it, it means the work has not been released under GPLv3. | Whenever there is a license to share things, the license creator wants the license to be widely used, but absolutely does not want slightly different licenses that could be used to trick people, or that just cause legal problems when used. Normal copyright law applies. And for the reasons above, the GPL license as an example allows you to copy the license verbatim but absolutely doesn’t allow you to make any modifications other than changing who is the person licensing a work. I would be curious what happens legally if someone licenses something with a sneakily modified copy of the GPL and then makes claims against a licensee who assumed it was the original GPL. | Unless the game is out of copyright, e.g. chess, snakes and ladders, Go, or checkers, your software would probably be considered a derivative work of the copyrighted game and an actionable infringement. The fact that you do not monetize it is not a defense. You would need written permission in the form of a license agreement from the copyright owner to do this legally. The penalties for violating copyright laws in this way could be punishingly serious. | The Oracle Binary Code License Agreement for the Java SE Platform Products and JavaFX writes: LICENSE TO USE. Subject to the terms and conditions of this Agreement including, but not limited to, the Java Technology Restrictions of the Supplemental License Terms, Oracle grants you a non-exclusive, non-transferable, limited license without license fees to reproduce and use internally the Software complete and unmodified for the sole purpose of running Programs. THE LICENSE SET FORTH IN THIS SECTION 2 DOES NOT EXTEND TO THE COMMERCIAL FEATURES. YOUR RIGHTS AND OBLIGATIONS RELATED TO THE COMMERCIAL FEATURES ARE AS SET FORTH IN THE SUPPLEMENTAL TERMS ALONG WITH ADDITIONAL LICENSES FOR DEVELOPERS AND PUBLISHERS. That is, Oracle is giving you permission to use Java for running any program, commercial or otherwise. Google vs. Oracle is not about calling the Java API, but reimplementing it on a new platform. Every computer program runs the risk of violating a third party's patents. That does not depend on the the programming language. Which is more "open source" is not clear cut, it depends on the particular JVM or CLR implementation in question. Mono is open source under the MIT licence, OpenJDK open source under the GPL v2 (with classpath extension). | We can't really know until the ruling is made. The Supreme Court might issue a ruling that encompasses all software APIs, or may predicate its ruling on this more specific situation, e.g. that because Oracle's library is so extensive its structure can be copyrighted even if that does not necessarily mean that any individual function signature can be copyrighted. They could also decide based on something unrelated to the heart of the copyright question - skimming through the petition for a writ of certiorari, they could make a decision based on the original implied license from Sun, for example. Hopefully their decision will answer the copyright question of function declarations completely, but it isn't required to. | This is similar to giving a hammer and needing to state to one is not responsible if the taker uses it to hit their head with. I believe this is the wrong analogy to use here. It would be more like giving somebody a hammer and saying you are not responsible if the head flies off and injures you. There is a concept in "things" you obtain called "fitness for purpose", so if you download open-source software like a registry cleaner, and it deletes your entire registry, the "WTFPL" doesn't absolve the authors of liability. Explicitly denying any kind of "fitness for purpose" or warranty helps shield the author from legal claims (even if they are meritless) because it kills it out of the gate. It's possible that the WTFPL license granter/author could still be sued and have to defend themselves in court because it isn't explicitly stated that there is no warranty or fitness for purpose. Open source does not mean that it's "use at your own risk", which is why there are so many types of licenses and disclaimers. From comments: Thank you for this very clear answer. Does the fact that someone willingly retrieves free code with no control of the provider changes anything? (vs a software vendor which provides code suitable for A and B, in exchange for money) I think closer to your hammer analogy where I would sue the producer of hammer XXX, a hammer I found on the street or which was given to me without involvement of vendor XXX. No, this doesn't change anything. The software vendor here is the person who writes the code, even if they don't charge for it. They are the ones who license the software and they are the ones who take some level of responsibility for it. In this case, the software author is the "hammer producer" that you would sue... If you buy "Registry Cleaner XL" from Best Buy and it bricks your computer, you don't sue Best Buy, you sue the person who authored the software. In pretty much every case, the author is the responsible party, not the vendor, and it is the author who licenses it, not the vendor (the vendor just acts as an intermediary). | The whole purpose of a patent is that the contents of the patent becomes public knowledge, in exchange for a time limited monopoly. Therefore you are allowed to do anything, since you are not just allowed but expected to examine the patent in order to improve on it, except that you need a license to sell or give away products implementing the patent as long as it is valid. The only thing to be careful about is that by publishing source code, you might be enticing others to infringe on the patent, so I'd recommend not to do that without advice of a lawyer. PS. With software, the interpretation of "making" software in patent law may be a bit surprising. There was a major case between Microsoft and AT&T about that. The software developer isn't "making" the software. The build engineer putting everything together isn't "making" the software. The CD manufacturer making a million copies isn't "making" the software. The person installing it on their computer is the one who makes it. | You cannot do this through any established public license that I know of, but you could write your own. The model would be any educational use or non-commercial use license, such as CC NC licenses. The main challenge is defining the excluded classes of usage. That is why you should engage an attorney to draft this for you. I don't think there is any point in adding a $5M penalty clause. You offer a separate paid license for individuals who do not want to comply with the particular terms of your license, and set the fee to whatever you want. Saying that you're gonna fine violators is a bad idea because penalty clauses are illegal. Instead, the standard approach is a liquidated damages clause, where you state what a reasonable estimate of your damages would be. In the case of software that is available for purchase, illegal copying of the software obviously results at least in the cost of the software qua lost revenue as damages. Plus shipping and handling. |
Do I Owe the Apartment Admin Fee if I don't Sign the Lease I applied (I didn't actually fill in every field, but they still performed a background check) to an apartment where they charge both an administrative fee and application fee. I decided to sign a lease with a different apartment and consequently didn't sign one with the apartment that charges both administrative and application fees. The apartment is asking me to pay both fees, but won't tell me what the administrative fee covers that the application fee doesn't. Additionally, I was told that I could pay electronically, but once they realized I'm not signing a lease they will only accept a money order or check. I haven't paid either fee yet, but the apartment manager said he will contact a collections agency if this isn't taken care of within 30 days. Do I owe the administrative fee? This is in Texas, United States. Thanks! | You agreed to pay these fees when you applied for the apartment, so unless they explicitly say that one or both of these fees is waived in case you don't take the apartment (virtually no chance that they said such a thing), you owe that money. Your obligation is not contingent on them convincing you that the fee is just, so it doesn't matter that they won't explain the difference. However, if they said you can pay electronically, then you can pay electronically, since that too is part of the agreement. | Under RCW 59.18.030(29), "Rent" or "rental amount" means recurring and periodic charges identified in the rental agreement for the use and occupancy of the premises, which may include charges for utilities. Except as provided in RCW 59.18.283(3), these terms do not include nonrecurring charges for costs incurred due to late payment, damages, deposits, legal costs, or other fees, including attorneys' fees. Per RCW 59.18.283(2) Except as provided in RCW 59.18.410, the tenant's right to possession of the premises may not be conditioned on a tenant's payment or satisfaction of any monetary amount other than rent. In other words, additional regular fees are disallowed. All recurring fees must be "rent" (but things like late fees, damages, attorney's fees which arise only occasionally are allowed). If a lease were to specify $2,000 as the rent and $1,000 as the "___fee", as a recurring charge it would still be considered to be $3,000 rent. One cannot get around the 60 day notice requirement of RCW 59.18.140(3a) (which says "a landlord shall provide a minimum of sixty days' prior written notice of an increase in the amount of rent to each affected tenant, and any increase in the amount of rent may not become effective prior to the completion of the term of the rental agreement") by calling it a "continuation fee". One does not need to get around rent control because per RCW 35.21.830, The imposition of controls on rent is of statewide significance and is preempted by the state. No city or town of any class may enact, maintain, or enforce ordinances or other provisions which regulate the amount of rent to be charged for single-family or multiple-unit residential rental structures or sites other than properties in public ownership, under public management, or properties providing low-income rental housing under joint public-private agreements for the financing or provision of such low-income rental housing. | Can a landlord keep a security deposit if my apartment rental application is approved, but I back out of signing the lease? That can't be legal, right? No. That is a violation of California CIV 1950.5. Although 1950.5(b) reflects that one of the permissible purposes of a security deposit is "to reimburse the landlord for costs associated with processing a new tenant", item (e) limits that amount "as [is] reasonably necessary for the purposes specified in subdivision(b)". A deposit of 1.5 times the monthly rent clearly is excessive for "processing a new tenant", let alone processing an applicant who never became a tenant because no lease agreement was entered. All other permissible uses of security deposit are inapplicable in your matter. Furthermore, if the landlord required a separate payment for the application, then your application fee satisfies the provision in 1950.5(b). This means that the landlord has the obligation to reimburse you 100% of the security deposit. | Don't trivialize this because it appears to be minor and inexpensive. If something goes wrong, you could be liable for damage. You should have an idea of what a reasonable cost should be based on the rent and condition of the property. Discuss it with the landlord. If the landlord chooses to fix it, you should have something in writing, signed by both you and the landlord, acknowledging that you aren't responsible for reimbursing the landlord for the cost or acknowledging receipt by the landlord of any contribution from you and a statement that the contribution fulfills your lease requirement. If you're going to fix it, you should have something in writing, signed by both you and the landlord, agreeing to the choice of replacement parts and the choice of anyone you hire to do the work. It might be nice to think you can save money by doing it yourself. But if anything happens and there's damage, you could be liable. You should have renter's insurance. You should check your renter's insurance policy to see what, if anything, it says about tenant responsibility for repairs. Your insurance might pay for it. More importantly, will your insurance protect you if something goes wrong and there's damage? I recommend you copy this and modify it as you see fit or, if you don't this is correct, make up something that you think is correct. Keep an electronic copy on your computer. But also have a notebook in which you keep how-to papers, so you don't have to figure it out all over again at some time in the future and to use the how-tos you accumulate to help you make new how-tos as necessary. Also keep documentation, especially warranties. Scan receipts (receipt ink is notorious for fading over time) and warranties, keep them the electronic copies on your computer and print the receipts and put the printed receipts and original receipts with the warranty papers in the notebook. Keep a manilla envelope with receipts, warranties, instructions, and any papers you receive from anyone you hire to do the work. When you move out, you should give the envelope to the landlord so the landlord will be able to maintain what was installed and obtain warranty service if necessary. | This would be pointless and wouldn't work. Eviction due to defaulting on rent requires the landlord to give 3 business days notice, in writing. This must include a method by which the tenant can settle their debt. Either the landlord would be forced to accept a payment or this would not be valid. Source Additionally, in this case, there is nothing stopping you physically handing an envelope of cash to the landlord as they live upstairs. However, there is no reason for your landlord to do this. If your landlord hates you that much it would be far easier for them to simply give you 60 days notice and terminate your tenancy that way. | My guess is the answer to this question is going to be in your lease. You likely signed a lease that agreed that you would pay accept this practice and spelled out what ever rights you have to challenge the billings. My guess is they are as limited as the courts will allow in Florida. And the only way to ensure access to those records would be to get the court to compel they provide you with the records. Perusal of the Water codes in Florida does not appear to directly engage this practice(I could have missed it). However it appears that there is code regulating the management of electrical limits the billing to no more than the actual costs to the customer of record(probably your real estate management company.) According the the NCSL (This refers to electrical service. I am assuming there is similar language used elsewhere for plumbing, or that the intent of the law is uniformity of these codes in all utility billings. Where individual metering is not required and master metering is used in lieu thereof, reasonable apportionment methods, including submetering may be used by the customer of record or the owner of such facility solely for the purpose of allocating the cost of the electricity billed by the utility. The term “cost” as used herein means only those charges specifically authorized by the electric utility's tariff, including but not limited to the customer, energy, demand, fuel, conservation, capacity and environmental charges made by the electric utility plus applicable taxes and fees to the customer of record responsible for the master meter payments. The term does not include late payment charges, returned check charges, the cost of the customer-owned distribution system behind the master meter, the customer of record's cost of billing the individual units, and other such costs. Any fees or charges collected by a customer of record for electricity billed to the customer's account by the utility, whether based on the use of submetering or any other allocation method, shall be determined in a manner which reimburses the customer of record for no more than the customer's actual cost of electricity. Each utility shall develop a standard policy governing the provisions of submetering as provided for herein. Such policy shall be filed by each utility as part of its tariffs. The policy shall have uniform application and shall be nondiscriminatory (Fla. Administrative Code §25-6.049). Now here is where the 3rd party comes in. The 3rd party is the one levying fees for the management on your landlord. Granted if you follow the strings ill bet you find that the billing company is owned by the same company that owns your rental management firm. So your landlord can collect no more than what it costs to provide you with the service, but part of providing the service is employing this 3rd party utility management firm. | Yes, they still have to go through the normal eviction process and must still provide the minimum number of days required by their local jurisdiction in order to vacate the property. By moving in and establishing residency, the tenant and landlord form an implied lease - the tenant does not need anything in writing in order to establish their legal rights to tenancy. More information: No written lease--Am I in trouble? | Your rights notwithstanding, the government has the power to do such things under appropriate circumstances. First, you would have to be in violation of some ordinance, for instance in Columbus OH you are a violator if the grass is over 12". This should generate a notice informing you what the issue is and giving a deadline for remedy. If you don't comply by the deadline, they are then empowered to send out guys with tools, and the city will bill you for the work. You could call them and ask what the deal is. They might say "We put the notice on your gate", or "we mailed it to you". From a legal POV, the onus is on them to be sure that you're notified. It would be a good idea to verify that this isn't a scam. [Addendum] Bryan TX kindly provides a video about code enforcement, and gives a link where you can go directly to the section of interest (starting 0:43). Your description of the situation is at variance with what they say is the law (12"; 7 day advance notice whereafter they will correct the violation. They also say no notice is required for second violation within a year; $100 administration fee added to costs; lien will be placed on property if unpaid). I assume that your back yard is publicly visible: they recognize that "when the area observed is plainly visible, from a vantage point where the Code Officer has the right to be there, there is no reasonable expectation of privacy". That could include visible from a neighbor's property if the inspector has permission from the neighbor to be there. Otherwise, there's a simmering 4th Amendment problem (assuming that they didn't get a search warrant). |
May a US YouTuber video record in a US post office without obtaining permission, and post the video to YouTube? Poster 7 is a source of much argument/confusion amongst the online Auditing/Frauditing communities. YouTubers bring their cameras into US post offices and video the employees, citizens, walls, etc., and then post their videos to YouTube. Photographs for News, Advertising, or Commercial Purposes Photographs for news purposes may be taken in entrances, lobbies, foyers, corridors, or auditoriums when used for public meetings except where prohibited by official signs or Security Force personnel or other authorized personnel or a federal court order or rule. Other photographs may be taken only with the permission of the local Postmaster or installation head. Does a US YouTuber have the right to video record in a US post office without obtaining permission, and post the video to YouTube? I have been asked to expand. Does Poster 7 have any legal strength. Are YouTubers news or other (commercial, etc.)? Does "when used for public meetings " apply only to auditoriums, or also lobbies, foyers, etc.? Does "except where..." apply only to auditoriums, or also lobbies, foyers, etc.? | This has yet to be specifically decided in the federal courts. The Post Office can set "rules of conduct" for its facilities. Prohibiting photographing is plainly a restriction on one's First Amendment rights, and it is established beyond question that a government cannot issue / enforce a blanket prohibition of public photographing. Someone would have to take a case to court to determine whether this limitation on First Amendment rights passes the relevant level of judicial scrutiny. The rationale (as set forth by the USPS) is that such photographing may be "disruptive". One can perhaps analogize the right to film police with a new-found right to film post office, following from a right to public oversight over the government. DHS gives general guidance of its own (with a pile of redacted stuff), directing you to 41 CFR 102-74.420. Permission is thus required, until the courts find that to be an unconstitutional restriction (I would not expect there to be such a finding). But it is not unthinkable that the courts could at some point so rule. The YouTube aspect of the question is irrelevant: if you have the right, you have the right, and it doesn't derive from nor is it blocked by an intent to distribute on YouTube. | I am not a lawyer; I am especially not your lawyer; this is not legal advice; if you want legal advice, hire a lawyer. Idk. But probably not. The YouTube terms of service seem to prohibit this pretty clearly: You agree not to distribute in any medium any part of the Service or the Content without YouTube's prior written authorization, unless YouTube makes available the means for such distribution through functionality offered by the Service (such as the Embeddable Player)... You agree not to access Content through any technology or means other than the video playback pages of the Service itself, the Embeddable Player, or other explicitly authorized means YouTube may designate. Now, were YouTube itself licensing the videos in question under the CC license, they might be prohibited from enforcing that term: You may not offer or impose any additional or different terms or conditions on, or apply any Effective Technological Measures to, the Licensed Material if doing so restricts exercise of the Licensed Rights by any recipient of the Licensed Material. though I'm not sure if the language in question would apply. However, it seems likely that in most cases, YouTube is using the material in question under the license to which users agreed when they created their accounts, and therefore is not bound by the term in question. All that said, it's entirely possible that the clause in the YouTube ToS prohibiting downloading does not apply for whatever reason (unconscionable in a contract of adhesion, browsewrap agreement doesn't form a contract to begin with, it's superseded by either some other agreement (part of the API EULA, etc), it's contrary to some law in your jurisdiction, etc). Just to be very clear, though, there is no COPYRIGHT CONCERN preventing uses like the one you mentioned. | I can't comment on what the legal situation would be in your home country, but as a matter of U.S. law, the hypothetical scenario you've described is not illegal. First, because you aren't a U.S. citizen and because you aren't operating in the United States, the U.S. government probably has no jurisdiction over you, your website, or your conduct. Even if it did, the most relevant statute, 18 U.S. Code § 1017, would not apply. The statute prohibits the "fraudulent or wrongful" use of the FBI's seal. But "fraudulent" and "wrongful" generally refer only to conduct where one uses deception or other means to obtain money, property, etc. to which they have no lawful entitlement. United States v. Enmons, 410 U.S. 396, 399 (1973). Because you aren't using the seal to obtain anyone's property through deception, this use would not fall within the statute's proscriptions. Even if the government sought to prosecute you, you would have a valid First Amendment defense. The First Amendment protects the right to free speech, and it does not allow statements to be criminalized merely because they are false. United States v. Alvarez, 132 S. Ct. 2537 (2012). This outcome should be unsurprising to most U.S. observers. I think most people would agree that the U.S. obviously cannot prosecute a Hollywood producer for making a movie dramatizing the FBI's efforts to shut down the Pirate Bay, even if it displayed the FBI's seizure message on a monitor in the course of the movie, and even if it showed the seal being used on a completely fictional website. The hypothetical you're describing is not materially different. In both cases, the seal is being used to falsely create the impression -- for entertainment purposes -- that the FBI has shut down a website. Saying false things for entertainment purposes is not a crime in the United States. | The store is, as far as i can see, not using the trademarked image to sell their cake. Your family does not intend to sell anything at all. This photo, from the description, could not reasonably be confused with an official image from the trademark holder. (all of this is based on your description, of course). Therefore, the trademark holder probably won't sue for trademark infringement, even if they somehow heard of this event, and if they did sue, they would quite likely lose. You would be making a copy of a presumably copyrighted image. You might have an active defense, but that is very hard to be sure of in advance. (Note that "fair use" is a very specifically US legal concept, and would not apply in the UK. The roughly comparable concept is "fair dealing" but that is more restrictive, and follows somewhat different rules.) In any case, it is possible that the rights holder would sue, and if the situation were a bit different (the was only one person pictured, making the shirt with the protected image very prominent, for example) there might be a larger chance of such a suit being successful. No business is going to want a bakery department manager deciding whether a particular use of a particular image does or does not infringe IP rights, and whether it does or does not expose the business to significant risk. Just to get an opinion from their lawyer on whether this image infringes would probably cost them several times the price of the cake with image printing. The store has no doubt written its guidelines to err well on the side of caution, because one suit, even if they won, would cost far more than the profits of many cakes, and if they lost, could have a very negative effect on their bottom line indeed. The store is entitled to restrict what business it does to keep itself safe from lawsuits. It is going to keep well on the cautious side, in all likelihood, and so it should. I fear you will have to find a store with a different policy, or use a different picture. | TL;DR: Technically, the SO and YouTube licenses are (probably) incompatible, so if you want to use copyrightable elements from SO in a YouTube video, you'll have to get permission from the original author. Certainly it never hurts to ask, even if you might not strictly need it. You cannot change the YouTube license… When you upload a video to YouTube, you have to choose between one of (currently) two licensing options: "Standard YouTube Licence" and "Creative Commons – Attribution". Neither of those licenses is exclusive, so you're certainly allowed to also license your video (to YouTube and/or anyone else) under some other terms. (That's what the answer you linked to means by "[stating] a license in your video description".) But even if you do so, your original license grant to YouTube still applies in addition to the other license. You can't just turn around and say that haha, no, you were just kidding, it actually doesn't. (And if you try to do that, and actually get someone at YouTube to notice, their most likely response is to simply take your video down. They're a huge company with millions of uploaded videos — they're not going to care about just one video, or even one channel, at least if it doesn't happen to be one of the handful of their most popular ones.) …and you must license derivative works of Stack Overflow content under CC BY-SA (not CC BY!) According to the Stack Overflow Terms of Service, "subscriber content" on SO (and other Stack Exchange sites, including this one) is licensed under the Creative Commons Attribution–ShareAlike license (CC BY-SA, version 2.5, 3.0 or 4.0 depending on when the content was posted). The "human-readable summary" of this license, as shown on the linked page above, says (emphasis mine): You are free to: Share — copy and redistribute the material in any medium or format Adapt — remix, transform, and build upon the material for any purpose, even commercially. Under the following terms: Attribution — You must give appropriate credit, provide a link to the license, and indicate if changes were made. You may do so in any reasonable manner, but not in any way that suggests the licensor endorses you or your use. ShareAlike — If you remix, transform, or build upon the material, you must distribute your contributions under the same license as the original. No additional restrictions — You may not apply legal terms or technological measures that legally restrict others from doing anything the license permits. Note that this is not the same license as the Creative Commons Attribution 3.0 license (CC BY) offered as one of YouTube's licensing options. In particular, the CC BY-SA licenses include the "viral" ShareAlike condition, which requires any derivative works based on the licensed work to also be licensed under the same CC BY-SA license (or one of a handful of designated "compatible licenses"). So if you e.g. make a derivative video based on a CC BY-SA license Stack Overflow post, you must also license your video as CC BY-SA in order to be allowed to distribute it at all. …and you (probably) can't just dual-license your video to YouTube either In principle, there's an option that might be allowed under the terms of CC BY-SA, and would at least seem to follow the spirit of the license: Upload your video to YouTube normally, selecting "Standard YouTube Licence". Also license your video to the public under CC BY-SA 4.0, e.g. by stating so in the video description or in the video itself. The idea is that, by explicitly releasing your derivative video to the general public under CC BY-SA, you've followed the requirements of the ShareAlike clause of the original Stack Overflow content's license (with some possible caveats regarding downloadability — see below). The remaining question, then, is whether you're allowed to also license the video YouTube itself under their standard license. And this, in turn, effectively boils down to the following question: Does the standard YouTube license allow YouTube to do something with your video that CC BY-SA doesn't already allow them to do anyway? If it doesn't, then the YouTube license grant is redundant: you're just telling YouTube "sure, I give you permission to do all these things that you already can do under CC BY-SA." If it does, however, then it's likely that you are not legally allowed to grant YouTube such permission to use your video, since it's (presumably) a derivative work of SO content it's based on, and thus may not be legally distributed without the original copyright holder's permission (which you and YouTube, again presumably, only have in the form of the CC BY-SA license). The tricky part here is finding out exactly what the "standard YouTube license" actually says. As far as I can tell, the actual terms of that license are buried in YouTube's Terms of Service, and basically say the following (plus some other stuff regarding monetization and content deletion that do not seem relevant here; emphasis again mine): Licence to YouTube By providing Content to the Service, you grant to YouTube a worldwide, non-exclusive, royalty-free, transferable, sublicensable licence to use that Content (including to reproduce, distribute, modify, display and perform it) for the purpose of operating, promoting, and improving the Service. Licence to Other Users You also grant each other user of the Service a worldwide, non-exclusive, royalty-free licence to access your Content through the Service, and to use that Content (including to reproduce, distribute, modify, display, and perform it) only as enabled by a feature of the Service. As far as I can tell (and keeping in mind that I am not a lawyer), the "licence to other users" is innocuous — it's just a subset of the rights already granted by CC BY-SA. (And none of these license grants are exclusive, so they don't prevent you from also granting a more permissive alternative license, such as CC BY-SA.) Most of the "license to YouTube" also looks fine to me, insofar as it basically just allows YouTube to distribute the video on your behalf, which, again, CC By-SA already allows anyway. Mere mechanical modification of the the video for display purposes (such as downscaling it to a lower resolution, adjusting the playback speed, etc.) also does not seem particularly problematic to me, as such mechanical changes are generally not sufficient to create a new copyright, and thus your CC BY-SA license grant should extend to such mechanically modified versions as well. However, there are a couple of terms in the license, which I've highlighted in bold above, that may be read as allowing YouTube to create further derivative works of your video (and thus, potentially, of the SO content it is based on) e.g. for promotional purposes, and to release these derivative works under a license other than CC BY-SA. That would be a violation of the ShareAlike clause, and thus something that you may not give YouTube permission to do on behalf of the original SO content creator. Would YouTube actually do that with your video? Most likely not. Could they? Under that license, yes they could. Also, there's a potential issue with the clause in CC BY-SA 4.0 that says (in section 3(b)(3)): You may not offer or impose any additional or different terms or conditions on, or apply any Effective Technological Measures to, Adapted Material that restrict exercise of the rights granted under the Adapter's License You apply. The problem here is that YouTube does not normally permit downloading videos, and has been known to send DMCA takedown requests against software projects such as youtube-dl that attempt to circumvent this restriction. As such, only distributing your video on YouTube could be interpreted as an attempt to prevent viewers of the video from exercising their right under CC BY-SA to download, redistribute and create derivative works of it. Also, even if you e.g. included an alternative download link in your YouTube video description, that might not be sufficient to make you compliant with CC BY-SA, since you would still have granted YouTube a license to display and redistribute your video as they want, including in contexts that do not include your download link. …but your video might not be a derivative work in the first place However, all is still not lost, and in practice you might well be able to legally create a YouTube video based on a Stack Overflow post anyway. The first, obvious, question is whether your video even counts as a derivative work in the first place. Ideas cannot be copyrighted, and if all you're taking from the SO post is the idea, while not copying any specific phrasing choices or images or code, then your video won't be a derivative work under copyright law, and as such, you won't be bound by the restrictions of the CC BY-SA license. Also, even including e.g. small snippets of code may be permitted without turning your video into a derivative work, if either the pieces are simple and generic enough not to meet the threshold of originality required for copyright protection, or if your use of them in your video is permitted under fair use (US), fair dealing (UK and commonwealth) or similar legal doctrines in your local jurisdiction. In such a case, you're legally allowed to use them in your video without availing yourself of the permissions granted by the CC BY-SA license, and thus also without being bound by the restrictions included in that license. The tricky bit here is that the boundaries of copyrightable originality and fair use are notoriously blurry and vary between jurisdictions, and it's very hard to be sure on which side of them your use falls on without an expensive and uncertain legal process. When in any doubt, I would thus recommend not relying on them too much, at least not if your use is such that you could possibly imagine someone wanting to sue you over it. By the way, one of my own answers on Physics Stack Exchange was actually turned into a YouTube video by the "It's Okay To Be Smart" channel a couple of your ago. What they did was exactly this: while they followed the style and structure of the answer quite closely in many respects, they took care to rephrase everything in their own words and to recreate all the demonstrations and diagrams. Is their video legally a derivative work of my answer? Maybe, marginally — some of their diagrams look very similar to mine, and some of the similarities just might be distinctive and original enough to be copyrightable. But even if I wanted to sue them, this would be a tough argument to make and the outcome would by no means be certain. I do wish they'd at least included my name and a backlink, though. :/ …or the author of the original SO post might have multilicensed it Even if your video is a derivative work of an SO post, you might still be able to use content from the post in it without relying on the CC BY-SA license. In particular, the same content might also be available under another, less restrictive license that you can choose to follow instead. In some cases, the post your quoting might directly include an alternative license notice e.g. as part of a code snippet, making that snippet (or whatever the extra license notice applies to) dual-licensed. The code, images or text that you want to use may have been published elsewhere under a different license by its author. For example, you might find a copy of it on one of the author's GitHub repositories (example), or it might have been reposted on the author's blog. Or, in the case of code, it might actually come from an open source project available under a permissive license (example). (BTW, both of the linked examples above are also examples of code with explicit license notices on SO). In the absence of an explicit link in the post, Google can be your friend here. Just make sure that any versions with a different claimed license really are licensed by the author and not just unauthorized third-party copies. Some Stack Overflow users, such as myself, include a general dual-licensing statement on their user profile. Mine, for example, currently looks like this: Please consider any (original) code I post to Stack Overflow and other Stack Exchange sites to be released under CC-Zero unless stated otherwise. You may do whatever you want with it and don't have to credit me in any way, although of course that would be nice. In addition, to avoid ambiguity regarding the open source status of CC-Zero, you may also use, copy, modify, and/or distribute any original code I have posted on any Stack Exchange sites under the terms of the ISC license or any other OSI approved open source license, unless explicitly stated otherwise. If doing so, please use the copyright statement "Copyright <year of posting> Ilmari Karonen" if no other copyright statement is provided. (Disclaimer: the statement above has been written by me for my own use, and has not been reviewed by a lawyer in any jurisdiction. If you like it, you have my permission to adopt it verbatim or paraphrased for your own use, but I make absolutely no warranties regarding its legal effect or validity.) …or you could just ask for their permission Obviously, this is always an option, assuming that you can contact the author. One simple way to do that is to post a comment on the post you want to reuse, asking for explicit permission to use it in your video and/or for an alternative license with more permissive terms. Of course, it's up to the author whether or not they want to grant such permission. At a minimum, something like the following additional permission should be sufficient (noting, again, that I am not a lawyer and that the text below has not been reviewed by one): In addition to the permissions granted by the CC BY-SA 4.0 license (and incorporating the definitions therein), You may upload Adapted Material based on this Licensed Material to third-party content sharing sites such as YouTube, and in doing so grant such sites an additional separate license to the Adapted Material and any Licensed Material contained therein, as required by their Terms of Service, provided that: You follow the License Conditions of the CC BY-SA 4.0 license (including the requirements to license the Adapted Material under CC BY-SA 4.0 or a BY-SA Compatible License, and to indicate this to recipients in a reasonable manner), and You make a reasonable effort (e.g. by providing an alternative download link, if the content sharing site does not provide one by default) to allow recipients of the Adapted Material to download it in a manner and format that allows them to easily exercise their Licensed Rights to it. or, in non-legalese: Yeah, sure, you can make a YouTube video based on my SO post, as long as you license it under CC By-SA and include a download link in the video description. …and they might not care enough to sue you, anyway All things considered, it's extremely unlikely that anyone would bother to spend the time and money to actually sue you over a video based on a Stack Overflow post. At worst, if they really didn't like what you did, they might decide to send YouTube a takedown request for your video, since that's a relatively simple process. At that point, assuming that YouTube acts on the request and takes your video down, you basically have three options: cut your losses, let the video stay deleted and hopefully be more careful next time, contact the author of the source material and try to come to a mutually acceptable agreement with them (which, of course, you should ideally have done before posting the video), or if you really believe that your use of the SO content was not a copyright violation, you can submit a counter-notice to YouTube (who will forward it to the original claimant, who will then "need to respond with evidence that they’ve taken legal action to keep the content from being restored to YouTube" within 10 days). Of course, ideally you wouldn't ever let things get that far in the first place. And the way to do that is to follow the advice above, and specifically to: not reuse copyrightable content when you can easily avoid it, but instead express your ideas in your own words, and with your own pictures and code; when you do want to reuse content created by someone else, ask their permission if possible; when basing your work on freely licensed content such as SO posts, try to follow the spirit of the license as far as possible, even if you cannot technically follow it to the letter; in any case, always give credit where it's due, both for (potentially copyrightable) content and for (non-copyrightable) ideas and inspiration; and generally try to be nice to people whose knowledge, creativity and hard work you're building on. Of course, following this advice won't prevent someone from suing you for copyright violation (although it might in some cases reduce their chances of prevailing, and/or the damages they can successfully claim if they do). But it makes it less likely that they'll want to. | Looks like these cameras are legal: If a dash cam is installed (e. g. for the purpose of collecting evidence in case of an accident), it is important to ensure that this camera is not constantly recording traffic, as well as persons who are near a road. This source, page 10. I assume, "constantly" means you cannot leave it recording round the clock on a parked bicycle, and the records must be retained no longer than is needed for the specified purpose. | Doesn't being recorded in your own home, or someone elses for that matter, require consent? That's not relevant here. Media outlets are generally not liable for reporting information that was or may have been obtained illegally, provided they are not the ones that did the illegal act, or directly incentivized its commission (e.g. if Gawker had paid someone to get them such a video). The person who filmed this act may or may not have committed a crime, but this was not relevant to the case at hand. In fact, Bollea (aka "Hulk Hogan") did sue those responsible for making the video; he settled with Bubba, but not with Clem. Bollea later added Gawker to the ongoing suit against Clem when publication of the tape was ruled to not be a copyright infringement. Isn't there a reasonable expectation of privacy when you're not in public like that? Also largely not relevant here, as Bollea's claims against Gawker were not about the production and existence of the tape, but of its publication. Bollea did allege invasion of privacy in his suit, but as concerns Gawker this was about publishing the video. Also keep in mind that Bollea had gone out of his way to convert his private life into a public spectacle by virtue of his reality tv program. Your reasonable expectation of privacy goes down when you have already set the bar so low that most every aspect of your private life is on public display. Some of Bollea's legal motions in his failed attempts to convict Gawker of copyright infringement were denied on the basis that publication of the video tape may actually constitute fair use. Celebrities in general have lower expectations of privacy than ordinary citizens. It's the well-known price you pay for fabulous amounts of wealth and fame: lots of people are paying attention to you and are interested in what happens to you, and you can't expect a lot of privacy when everyone's staring at you and hanging on your every word and action. Not that they have zero privacy rights, it's just harder for them to establish the "reasonable expectation". don't I have the right to not have that material distributed even if I were famous and it was "newsworthy"? Your question here is the embodiment of the controversy: where does freedom of the press end and personal privacy begin? Freedom of the press is constitutionally enshrined, and tends to be zealously protected in America as a prerequisite for true democracy and freedom. Personal privacy is not, and emerges more as the consequence of laws and the judiciary's application of certain Common Law sensibilities. There are some constitutional protections against governmental infringements (unreasonable search and seizure, that sort of thing), but the protections you have against non-governmental infringements only exist within laws. So the general expectation you can have is that if something is newsworthy, then it's fair game for the press to report on it. The issue falls to what qualifies as "newsworthy", and who gets to make that judgment? Part of Bollea's legal argument was that what Gawker published was not newsworthy, going to the extent of having the editor concede in court that a depiction of Bollea's genitalia was not newsworthy. And this "not newsworthy" angle seems to be the heart of what their case was getting at: what was reported was not done because it was "news", but because it would get Gawker attention and profits at Bollea's expense (including capitalizing on his famous Hulk Hogan persona). It's also the heart of why some people consider this a controversial and potentially problematic case. Those who have voiced 1st amendment concerns have done so primarily out of concern that this trial would allow courts and juries to decide what was "newsworthy" and what was not. Meaning that news outlets might now have to sweat bullets every time they published something because maybe a jury would assert it wasn't newsworthy, leading those outlets to be less likely to report certain aspects of news. Presumably these people feel that the only ones who should be deciding what is newsworthy is the press, and the public vis-à-vis their consumptions and demands thereof. | A review is a classic occasion for fair use under US law, for fair dealing under UK law, and for other exceptions to copyright under the laws of a number of other countries, including many of the EU countries. However, such exceptions usually require that no more of the copyrighted work is used than is needed to demonstrate and support the reviewer's points. It is usual in a review of a film or video to show only very brief clips, usually a few seconds or a minute or so at a time. There is no specific limit on how long an excerpt may be used in a review without the review constituting copyright infringement, this is judged on a case-by-case basis. But if the reviewer actually includes a full fifteen-minute clip, that might be held to be too much. Note that the reviewer can, and often will, discuss the entire film. But it is not usual to "show" the entire film. Just a a book review normally quotes only a few paragraphs, even as it discusses the entire book, a film review normally includes only short clips of scenes significant to whatever points the reviewer makes. In US law, a significant issue is whether the review can "function as a substitute for the original" (17 USC 107). That is, whether people are likely to watch the review and come away feeling as if they had seen the entire film, and so need not watch the original. If sop, it is more likely to be considered an infringement. I can only speak to what might be an infringement of copyright under the law of various countries. I cannot speak to YouTube policies or how such policies might be applied. But my understanding is that YouTube only applies "demonetization" to things that it considers clearly copyright infringements, although sometimes it is overly cautions in such decisions. |
Does my will need to be in legalese? My wife and I are planning to write a will, or have one written for us. To me, it seems very simple. Our wishes are: If either my wife or I dies, the other one gets everything. If we both die before our child is 18, he goes to Bob. All our stuff goes to our child in a trust that he gets when he turns 18, to be managed by Bob until that time. These wishes seem very simple and straightforward to me. I can't imagine them being genuinely misinterpreted. In contrast, a basic online will template runs 10-20 pages. I can imagine this complexity being justified if I had a complex estate in the future, but for now it seems excessive. Can anyone point towards specific cases where someone with a similar will has run into major problems because they wrote a simple will instead of the complex legalese one? | Legalese is not required You can and should write a will in plain English. However, you need to ensure that your simple wishes can: Actually be understood, Actually be implemented, Don't have unintended consequences, Cover all bases. Use a lawyer I suggest that you write your simple wishes out as you have done and take them to a lawyer. A good lawyer will be able to: Draft a will and have it executed so that it complies with the law, Keep a copy of the will so that your executor can find the damn thing without having to tear your house apart, Consider the contingencies that you haven't. My lawyer charged me and my wife $150 each - 20 years latter the estate has twice as many children and would be worth several million dollars; I consider it one of the cheapest pieces of insurance I have ever bought. Contingencies Who is the executor of the will? This is the person who administers the estate until it is finalised. As written, you haven't named one: in most jurisdictions this makes the government's Public Trustee the executor. How and how much will the executor get paid? Executor's are entitled to be paid for their services. What happens if you and your wife are separated or divorced at the time of your death? Wills are not automatically terminated by these events. What if Bob is dead before you die? Or has emigrated? Or is insane? What if Bob dies in the same car crash that kills you and your wife? What if Bob dies after he becomes the trustee of the trust? Who will be your child's guardian? As written, Bob is responsible for the finances but he is not the guardian. The child would be reliant on kinship guardianship or become a ward of the state. For what purposes can Bob use the trust money? Education of the child? Vacations for the child? His own gambling problem? Can the trust borrow money? What types of investments can the trust make? Bolivian palm tree futures anyone? Does Bob need to get professional financial advice about this? Who will audit the trust to ensure Bob is behaving appropriately? Your wife falls pregnant tomorrow. Do you want to write a new will or have one that works no matter how many children you have? What if all 3 of you die in the same car crash? Who gets the estate then? Only people with no assets or dependants have a simple estate | In the EU, that's the general rule going forward, but there are two big exceptions I'm aware of. The general rule from Article 1(1) of the Copyright Term Directive: The rights of an author of a literary or artistic work within the meaning of Article 2 of the Berne Convention shall run for the life of the author and for 70 years after his death, irrespective of the date when the work is lawfully made available to the public. Note that this is in fact an extension on the Berne Convention, which requires minimum 50 years after death. Big exception #1: Moral rights. Article 9 specifically states the directive does not apply to moral rights. These vary by country, but in the EU, moral rights have the tendency of lasting forever, and most often includes the right to attribution and a right against action which to the author is "prejudicial to his honor or reputation" (see Berne Convention Article 6bis). Therefore, as a rule, you cannot do "whatever you want" with an image (though sale is generally OK – that's an economic right, not a moral right). Big exception #2: Pre-existing longer term. Article 10(1) leaves intact pre-existing longer term limits which Member States had: Where a term of protection which is longer than the corresponding term provided for by this Directive was already running in a Member State on 1 July 1995, this Directive shall not have the effect of shortening that term of protection in that Member State. This of course means, you can't actually 100% rely on this "70 years after death" rule in the EU until 1 July 20661. However, most EU countries did have 70 years anyways. That said there are some interesting exceptions. For example, France has mort pour la France which extends copyright an additional 30 years for those who died on active military service. This means for French citizens who died before 1 July 1995 on active military service, this directive does not apply, and they still have up to 100 years of post-mortem copyright protection. As an aside, Wikipedia has a fairly detailed list on country copyright lengths. Not 2065, because per Article 8, the rule is actually the January 1st after 70 years after death. Then you have to wait till July 1 to be sure the rule 100% applies, because for some reason, they made the Article 10(1) exception start in the middle of the year. | Generally speaking, you have to disclose that the defendant is a minor in the complaint and their deadline to respond is tolled until the court has appointed a guardian ad litem for them. So, while it is possible, it is arduous. Also, since someone below the age of eighteen can claim minority as a defense to an executory contract (as opposed to a contemporaneous exchange of goods or services for cash), and in some cases, to other contracts, you have a better shot at suing for malperformance and nonperformance of work. Finally, even if you can sue, collecting a judgment from a minor, who is likely to lack both employment and any significant assets, is very challenging. A minor's legal guardians or parents would not be responsible for a judgment entered against a minor in these circumstances. there was no written contract for the job and the only information I have of them is their phone numbers. The lack of a written contract isn't a serious problem in a short job that was performed by both sides. You will need to be able to locate them to physically serve them with process to sue them. If you have their names, approximate ages, and the general vicinity of where they live or work, this isn't an insurmountable burden, but it is a bit of extra work that could turn out to be easy or could turn out to be a major obstacle. | What would be an appropriate legal classification? A trust. How could this entity be structured so it could manage multiple estates? As a trust. Could this entity choose to keep, say, 30% for internal use e.g. resuscitation research? If that’s what it says in the trust deed, yes. How could this entity be made "recession-bulletproof," such that it could survive collapse of civilization? It can’t. Could it be given autonomy under the direction of a single person, or even sovereignty along the lines of a Mars colony? A trust is managed by its trustee(s) for the benefit of the beneficiaries. A trustee can be an individual or a corporation and there can be one or more of them. It couldn’t be given sovereignty - only nation states are sovereign. Could it be immune from legal jeopardy if it chose to accept clients who volunteer to be frozen before they die? No. What might happen to the estates if the economy is radically altered, e.g. a scarcity-free system where money is obsolete? Beats me - you’re the science fiction writer, you make it up. | Attorneys are universally required to tell the truth at all times and generally, they do. They are not allowed to lie on behalf of their clients or themselves. This doesn't mean that someone else's attorney necessarily has your best interests at heart. And, attorneys can, for example, fail to mention options that exist, but might not be the best for the attorney's client. Also, if an attorney's client lies to him or her about the facts, the attorney could conceivably say something inaccurate while believing it to be true. In the kind of meeting you are describing, however, most likely, the attorneys are simply going to explain your parents' estate plan, over which you have no control or say in any case, and there is no reason for suspicion or paranoia. | This is complicated. This is state dependent, and as of time of writing, you haven't disclosed what is the relevant state. This is something you should hire/retain a (divorce) lawyer, and discuss with them. The law can be messy; divorces are always messy. The answer is the most common answer in law: it depends, on specific facts. See above, get a lawyer. The first question is "is the money in this investment account a shared asset that I have any claim to". The answer is "it depends". What state are you in, and where did this money come from? Depending on various factors, the answer might very well be "no", in which case, this money (and it's loss) may not affect you at all. If you do have some claim to this money, then it gets even more complicated. "Can this asset be retrieved in a court proceeding and say that he was squandering money?" Maybe, kinda. Technically no (because of the way you phrased that). I'll explain. In a divorce, "shared" assets are divided equitably (Note "equitably" does NOT mean "equally") based on numerous factors, often on a case-by-case basis, and which factors depend on the state. (Therefore, the lawyer you retain should be licensed in the state you/your husband are filing for divorce in). Before your divorce, both sides have (in general) the right to use shared property. They do not have the right to intentionally damage or destroy said property. One complication/grey area is normal use that degrades or damages the value of said property. For example, imagine a classic sports car. Many people drive them for fun; this is normal use. On the other hand, using a classic sports car decreases the value. Is using the sports car unreasonable damage? This is a fact based determination to be made based on specifics. Can this asset be retrieved in a court proceeding [if I] say that he was squandering money? (correction to what I think think you meant). Maybe, but probably not. You can say whatever you want in court, but what matters is what you can prove, as you are the bearing the burden of proof due to making the accusation (and you must prove it to the standard required by the court in your case for your particular motion/accusation, which might be the standard of "the balance of probabilities/more likely than not" or "clear and convincing evidence", or something else; it's complicated, fact dependent and state dependent, so get a lawyer). You don't need to prove that he lost money. If he was day trading before, the fact that he was day trading after the separation is not held against him; day trading is risky, therefore you have to prove that he intentionally lost money (and, potentially, that he intentionally lost money to deny money to you in the divorce, as opposed to e.g. tax loss harvesting). I would recommend hiring a divorce lawyer and discussing it with them. | There is a firm difference between giving advice on "what the best decision is likely to be" and "what decision to make". The former is what lawyers must do, which comes from: Conduct and Client Care Rules: Whatever legal services your lawyer is providing, he or she must— discuss with you your objectives and how they should best be achieved: give you clear information and advice: Lawyers and Conveyancers Act 2006: legal work includes— advice in relation to any legal or equitable rights or obligations: So, there is nothing in the law that requires lawyers to advise you on "what decision to make". Instead, they explain to you the range of possible decisions and what ramifications / implications / consequences they have. They won't make the choice for you — it's always yours. Is it legally correct that a lawyer is not permitted to provide advice on what decision to make It is not strictly true that a lawyer "is not permitted". Rather, they are not obliged to do so. And they have a damn good reason not to: there is a huge difference between being responsible for legal facts based on which you make decisions, and being responsible for decisions themselves. | The executor must follow the will The executors legal duty is to execute the testator’s intent as detailed in their will. While I have no doubt that you understand the testators verbal wishes as expressed to you on a particular day - how do you know they didn’t change their mind some time after that? As others have said, with the beneficiaries’ agreement you can override the express written wishes but if one or more don’t agree, you will have to follow the will. To do otherwise exposes you to personal liability if a disgruntled beneficiary sues. The will is your shield, you step out from behind it at your peril. Now, the beneficiaries may be perfectly happy with the verbal intent now but … when there is money on the table, they may see it differently. Do yourself a favour, have the difficult conversation and get the will changed or refuse to be the executor. |
Can the government force spammers to disclose how they got my e-mail address? My impression is that a large proportion of unsolicited email marketing (SPAM) originates because the recipient willingly provides their address in the course of a desired interaction with a second-party, but in the process unwittingly consents to having their personal information shamelessly exploited, sold and resold to an unlimited number of third-parties. A key factor is that the second-party can make a small profit at no cost (reputational or otherwise), because the SPAM recipients technically gave permission and have no means to determine which entities have exploited their personal info in undesired ways. The U.S. doesn't have very strong anti-SPAM laws. I suspect this is at least partially due to the fact that email marketing regulations would inherently confront issues of free speech, commerce, or others that could give marketers cause for action. So my question is this, could a state or the federal government pass a law requiring email marketers to specify the chain of custody of your personal info, such that a person could revoke permission to others in the chain and/or hold them reputationally responsible? | A Commerce Clause challenge would fail A Commerce Clause challenge seems like a sure loser. Under the Commerce Clause, Congress “has authority to regulate and protect the instrumentalities of interstate commerce,” Gonzales v. Raich, 545 U.S. 1, 16 (2005). Because “the Internet is an instrumentality and channel of interstate commerce” United States v. MacEwan, 445 F.3d 237, 245 (3d Cir. 2006), Congress has virtually boundless authority to regulate its use. Gibbons v. Ogden, 22 U.S. 1, 196 (1824) (“This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution.”) A First Amendment challenge would probably fail But as you note, that authority is not boundless, as congressional enactments must still comport with the First Amendment. I would not be surprised by a First Amendment challenge to such a law, but I think it would fail. Commercial speech enjoys less protection than speech by individuals. For instance, although the government may not limit speech merely because it concerns unlawful activity (Brandenburg v. Ohio, 395 U.S. 444, (1969)) or because it is false (United States v. Alvarez, 132 S. Ct. 2537, (2012)). But commercial speech is essentially unprotected by the First Amendment unless it concerns lawful activity and is not misleading. Central Hudson Gas Elec. v. Public Serv. Comm'n, 447 U.S. 557, 563 (1980). And even then, the government has wide latitude to compel commercial speech, as opposed to restricting it: Because the extension of First Amendment protection to commercial speech is justified principally by the value to consumers of the information such speech provides ... appellant's constitutionally protected interest in not providing any particular factual information in his advertising is minimal. Thus, in virtually all our commercial speech decisions to date, we have emphasized that because disclosure requirements trench much more narrowly on an advertiser's interests than do flat prohibitions on speech, warnings or disclaimers might be appropriately required in order to dissipate the possibility of consumer confusion or deception." Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 (1985). There are, of course, still limits on the government's authority to compel speech, and the Supreme Court has struck down compelled commercial disclosures that did not deal with "purely factual and uncontroversial information" and did not relate "to the services that [speakers] provide." Nat'l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361, 2372 (2018) It's unclear whether a disclosure law must satisfy both parts of that test or only one. If it's only one, an e-mail chain of custody seems sufficiently factual and uncontroversial to survive a First Amendment challenge. If the law has to pass both tests, it would likely come down to the question of whether that chain of custody bears a significant enough relationship to the speaker's services. I can imagine arguments both ways. The states may not impose new limits on spam e-mails. Although the federal government could enforce this law, a state government could not. The CAN-SPAM Act of 2003 sets baseline rules for unsolicited commercial e-mail and permits the Federal Trade Commission to further regulate those messages. Although many people think those laws don't go far enough, the states are generally not permitted to enact any further regulations, because they are expressly pre-empted by 15 U.S.C. § 7707 (“This chapter supersedes any statute, regulation, or rule of a State or political subdivision of a State that expressly regulates the use of electronic mail to send commercial messages”). There are two exceptions to this pre-emption. One permits additional state regulations addressing deceptive communications, and another permits additional state regulations that only incidentally effect e-mail messages. The first option seems weak, but perhaps a state could enact a law requiring any commercial solicitation -- regardless of medium -- to require such a chain of custody. I'd imagine, though, that the most common alternate means of sending such messages (fax, USPS, text message) are also regulated by federal laws that likewise pre-empt state regulation, so I think this could be difficult to pull off as well. tl;dr: The federal government would likely be permitted to impose this law, but a state could not. | The right to free speech is a right that is guaranteed against the federal and state governments only. It is not a right that is secured against private individuals and corporations. It is also neither absolute nor unconditional, as there are a number of exceptions/limits. Alex Jones could not walk into your home and start "exercising free speech" and leave you with no recourse whatsoever to remove him from your home. If you don't consent to him being there, you may legally tell him to leave and have him removed by force if he fails to comply. Facebook etc. are the "homes" of the relevant corporations. They simply told Alex Jones to get out and go somewhere else. He retains his right to free speech; he simply never had a right to speak wherever he wanted. An always relevant XKCD. | Owing to the First Amendment, in the United States your recourse would be limited to civil action based on violations of terms of service (meaning that "the authorities" are not going to knock on their doors to tell them to behave). This is not "spam" (which could be regulated) as the term is generally understood. It is annoying, but probably does not constitute threatening or child porn. It might involve violation of an anti-impersonation law such as this one from Texas, if the offender uses the persona of a real person as opposed to a fictitious person). That law, moreover, does not criminalize simple annoying. Prosecution may be possible in the UK. | Illegal to write? No. Notwithstanding the First Amendment which would almost certainly make a law prohibiting it illegal, writing such things is an essential part of an IT security professional’s toolkit. You can’t protect against worms if you don’t know how they work. Illegal to distribute on an unauthorised computer? Absolutely. This would be a clear breach of the Computer Fraud and Abuse Act. | Think of a website that has gives no option for the users to delete what they have posted -but still the users can delete their account completely. That's easy - this is exactly how all StackExchange sites (including this one) work :-). See for example: How does deleting work? on meta.SE. Is it against the right to erasure mentioned here as a part of GDPR? No, it is not (otherwise StackExchange would be in rather big trouble). The "right to be forgotten" is subject to limitations. Most importantly, it only applies to personal data. Personal data is defined as (GDPR, art.4): any information relating to an identified or identifiable natural person (‘data subject’) If what you posted contains no personal information about you, it is not "relating to" you. The details are complicated (as usual, see e.g. The GDPR: What exactly is personal data?), but "personal data" is things about you (your name, your address, your sexual history, maybe even your IP address). On the other hand, if someone asks how to solve a programming problem, and you write an answer explaining what API to call, that answer is not personal data. In addition to that, even personal data may be retained if the data controller has a need to retain that information. This is also covered in article 4. For example, the controller may retain information "for the establishment, exercise or defence of legal claims" - otherwise you could buy something online without paying, and then ask the seller to forget about your purchases so they cannot collect the outstanding payment. So, in summary: A website will need to allow users to delete or hide personal data that they posted - such as their user profile information, or personal information in their posts. That does not mean they are allowed to delete entire posts - it is enough if personal information is redacted or anonymized. The website may be allowed to retain that information (hidden) if they can show legitimate interest - for example billing information, or posts that are the subject of a lawsuit. The StackExchange network, for example, covers this by allowing users to: disassociate posts from their account delete their account entirely (thus effectively disassociating all posts from personal information) asking a moderator for redaction of personal data | Does criticizing public figures constitute libel especially in a private group? It depends on the specifics, but a priori your description suggests that the defense of honest opinion would be applicable. This is regardless of whether the subject is a public figure and regardless of whether the statements were in private --albeit non-privileged-- communications. Case law surely provides guidelines or precedents on how the details and circumstances of the events would fare on the parties' legal position, but I am not knowledgeable of UK/English law. Does X have a counterclaim for illegally accessing the data? The matter seemingly depends on how the religious leader had or gained access to the data. Even if he gained access by stealing or hacking a device or account, X would not have standing to [counter-]sue unless the device or account belongs to X. Be mindful of the possibility that third party might have made the disclosure to the religious leader. In that case, actionability (if any) of the disclosure only encompasses the third party, not the religious leader. X's intent that his statements stay only among the participants does not necessarily imply that participants' disclosure elsewhere is unlawful. | In general this is protected by the first amendment. It is not in general a problem describing how one can one can do something illegal. But there are special cases to be careful with. You might want to do some research into the limits on free speech. It would be hard to provide an answer that fully covers all your different cases and you would need to be more specific about what illegal activity you want to describe. In describing how to do something illegal, you might accidentally share information that you are not allowed to share. When you post things online, this can be considered as publishing or exporting. Therefore certain export restrictions might apply. Also, It is illegal to publish bomb making manuals, with the knowledge or intent that this information be used to commit a federal crime of violence. See https://www.law.cornell.edu/uscode/text/18/842. There are restrictions on publishing material relating to cryptography without having an export license. Granted, this isn't necessarily related to publishing things that are illegal, but just to give an idea about how publishing/exporting knowledge can causes problems. See https://en.wikipedia.org/wiki/Export_of_cryptography_from_the_United_States ITAR (International Traffic in Arms Regulations) sets restrictions on what you can publish about arms. What you publish can't be “directed to inciting or producing imminent lawless action.” See for example https://en.wikipedia.org/wiki/Brandenburg_v._Ohio. One might imagine that you could get into trouble if someone interprets what you do as inciting or producing a lawless action. It might sound obvious, but you want to make sure that you have the right to share the information that you have. The information that you are providing might be copyrighted in some way. | united-states If there is more than 1 email account annoying you online, do you need to obtain separate court orders to identify each one, or is one order sufficient? A judge could order an email provider to unmask multiple accounts with one court order. Judges are not really restricted in the number of things they can do per order, as long as it's within their jurisdiction. What if one of the accounts you’re naming is determined to not be harassing? Then the judge would be unlikely to order that one unmasked. It wouldn't prevent the others from being unmasked, if the requirements for such an order to be issued were otherwise met. |
Overseas ERP consequences A friend of mine is worried about a certain thing he did a couple of months ago. Assume he lied about his age when he was 17 (now 18), and did erotic roleplay (ERP) with another individual who also lied about their age, and claimed to be over 18. This friend of mine lives in an overseas country, for example, Turkey while the other person lives in the US. My friend asked for their age multiple times, and asked for their birthday to confirm and actually got confirmation that they were an adult (no actual IDs were sent). There were no actual, real life pictures sent or received. Just drawings and chatting. Could my friend get into trouble for something he did when he was also a minor? Could he be arrested when he visits the US? Thank you. | This is unlikely to give rise to criminal charges in the U.S., if the bare bone facts of the question are all that is involved. It does not count as child pornography. But possible offenses might include contributing to the delinquency of a minor (a minor misdemeanor), or perhaps enticing a minor to travel in interstate commerce for sex, neither of which are likely to come up in a case where no travel occurs until both parties are adults. The potential offenses, unlike child pornography offenses themselves, would generally include defense for good faith mistakes regarding age. The situation in Turkey could be more serious. While I can't identify a particular offense, if the participants were of the same sex, even though homosexuality is not outright banned in Turkey, as it is in many predominantly Islamic countries, this could be characterized as an "offense against public morality" in Turkey. In either a same sex or opposite sex circumstance, it might be characterized in Turkey as some form of illegal seduction, or perhaps as some implicit form of blasphemy. Even if it didn't give rise to criminal charges, it might also be used as a basis for severe parental discipline, or as a basis for finding that someone lacked "good character" in a civil context, in either country. Of course, unless the interaction is known, identified with real people, and brought to the attention of law enforcement, nothing would happen. | According to a blog post (written by a lawyer who actually has had multiple people ask about that), it depends on several things. The gist is that they're not getting away with this "brilliant plan" unless they take so many steps to make it look legitimate that it will, in fact, become a legitimate porn production enterprise — in which case, why bother with the ruse in the first place? To find you guilty of prostitution, a jury would have to be convinced beyond a reasonable doubt that you were guilty of prostitution and not just making porn. But putting a camera in the room doesn't necessarily make it First-Amendment-protected porn; sometimes it just means you're giving them evidence of your crime. Since juries can differ, there's not really a bright line. But some things look bad to judges and juries. If the director is also doing sexual acts in the film, that looks bad. If he's also never directed or acted in porn before, that looks bad. If a person in the film is paying for the "actresses" instead of getting paid for "acting", that looks very bad; see United States v. Roeder, 526 F.2d 736, 737 (10th Cir. 1975). Having an actual script, on the other hand, may look good. Keep in mind that if the film is not just pornographic but actually obscene, obscenity laws could still apply even if you convince them it isn't prostitution. The First Amendment does not protect obscene materials. Additionally, if you claim it's porn, you will need to properly keep records of the names (and all former names/aliases) and dates of birth of your "actors" and "actresses", unless you want to be guilty of a federal felony. This includes making a copy of their photo ID. The records must also made available for inspection by the Attorney General and his inspectors for a minimum of 20 hours per week, with no advance notice given by them. Is everyone involved really going to be OK with all of this - especially since the law specifically notes that the records may be used as evidence in a federal obscenity prosecution? | It is almost certainly illegal. I was unable to find UK provisions but the penalties for stealing an Australian passport are 10 years imprisonment or a fine of up to 1,000 penalty units (at time of writing a penalty unit was $170 so, $170,000) (Section 32(4) of the Australian Passports Act 2005). Under this law, the crime is knowingly having it in your possession when you know it isn't yours. Obviously, normal familial relationships would not be prosecuted (i.e. one member of the family carrying all the family's passports). Certainly, if the true owner asked for it and the possessor refused, that would trigger the crime. Furthermore, it is completely pointless - all the original owner has to do is report it stolen and apply for another one. | It's almost certainly violating the company's rules, and yes, you can get into trouble for that (in the sense of an internal disciplinary matter). Whether it's a criminal hacking will depend on a) what you did; b) where you are ... but I wouldn't rule that possibility out. | "Age of consent" is a legal meme that refers indirectly to different criminal statutes, for example in Missouri under MO Rev Stat § 566.034, A person commits the offense of statutory rape in the second degree if being twenty-one years of age or older, he or she has sexual intercourse with another person who is less than seventeen years of age §023 also states that "It shall be an affirmative defense to prosecutions under sections 566.032, 566.034, 566.062, 566.064, and 566.071, that the defendant was married to the victim at the time of the offense". MO Rev Stat §451.090 allows marriage with parental permission to those aged 16 and 17 (by prohibiting licensing of marriage to those younger) No recorder shall issue a license authorizing the marriage of any male or female under sixteen years of age nor shall a license be issued authorizing the marriage of any male or female twenty-one years of age or older to a male or female under eighteen years of age. Combining these legal parts, you get the result that a man may marry and impregnate a woman whom he could not legally have intercourse with (irrespective of pregnancy) were they not married. It just depends on what the specific law says. | No. According to the Section 18 of the U.S. Code, § 2251: (a) Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, or who transports any minor in or affecting interstate or foreign commerce, or in any Territory or Possession of the United States, with the intent that such minor engage in, any sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct,shall be punished as provided under subsection (e) [...] and a minor is defined (Section 18 of the U.S. Code, § 2256) as "any person under the age of eighteen years". As such, you cannot be considered a pedophile. However, if you have sexual intercourses with animals, depending on the State laws on the matter, you might be charged with bestiality or similar offences. | Yes, "The offender will receive a criminal record." But, you ask, "How is this squared with s14(1) of the 2000 Act?" Well, you will note that it states that it "shall be deemed not to be a conviction for any purpose other than the purposes of the proceedings." The key here is "other than the purposes of the proceedings" which means that, although there is no further punishment for your crime, you have still been convicted officially and it will be noted (on your record) as per the proceedings, and may be brought up in any subsequent proceedings ( "and of any subsequent proceedings which may be taken against the offender under section 13 above." ). You will also note section 12(7): "Nothing in this section shall be construed as preventing a court, on discharging an offender absolutely or conditionally in respect of any offence, from making an order for costs against the offender or imposing any disqualification on him or from making in respect of the offence an order under section 130, 143 or 148 below (compensation orders, deprivation orders and restitution orders)." Which further shows that an absolute discharge is not an absolute pardon, and should not be thought of as such. Rather, "You are very much guilty, but of such a minor crime that the experience of a trial has probably been enough, so we'll let you go without additional punishment." | It is illegal to sell alcohol to a minor in Washington (RCW 66.44.270). The seller can get into various kinds of trouble, including losing their license, under liquor board regulations. However, as long as the establishment follows the rules for acceptable ID, they escape liability if in fact they sell alcohol to a minor: the license holder is legally allowed to accept an identification of the specific type. That is the sense in which this is required by law: the customer must have actually presented the identification, in order for the establishment to escape liability (RCW 66.20.210). Looking old enough is not the issue. It is legal to sell alcohol to a person who is over 21, and the law does not require presentation of identification as a condition for a sale. However, under RCW 66.20.180 a person is require to produce ID "upon request of any licensee, peace officer, or enforcement officer of the board". The legal risk attached to sales in an age-marginal situation is very high, and actual presentation of ID is required to escape liability by the establishment, so in that sense, it is "required by law". All requests to produce ID for liquor sales (at least in Washington, and leaving out deliveries which are governed by other laws) are driven by company policy. Typical policies are quite rational, being designed to protect the company's interest in not getting into a heap of trouble for an under-age sale. There is no law saying when you must ask, or when you are protected if you don't ask. Usually, store policy is to use "common sense" so that 90 year olds are not required to produce ID (they may be asked, jokingly). Non-compliance with RCW 66.20.180 carries no legal penalty, that is, there is nothing in the statute that says "if the customer doesn't...". The most obvious would be that the seller would refuse to sell, which the seller can arbitrarily do anyhow. There is no statutory penalty imposed on a licensee if they request ID of a person over 21 and the person fails / refuses to produce the ID. Obviously, the licensee cannot be punished if a customer fails to provide ID (and leaves), especially if they lost it. But the law "requires" them to provide an ID, with ne except "unless you leave / put the bottle back". Somewhat less obviously, if the legislature wants to, it can enact a provision that once a licensee requests ID, they are forbidden to sell alcohol to that customer until ID is provided. But there currently is no such law. "The law" also included regulations, such as WAC 314-17-105. This regulation is a chart, and the relevant entry is PERMIT: Failure to produce permit or identification upon request. See RCW 66.20.310 and 66.20.180. for which the 1st offense consequence is "5-day permit suspension OR $100 monetary option". This is a problematic regulation (potential lawsuit fodder), since it can be interpreted in a number of ways. The question is, of whom is the permit or identification predicated? Only the licensee has a permit, but customers and employees can both have identification. If we interpret this regulation as meaning "Failure by licensee or customer", then we arrive at the absurd conclusion that if a customer fails to produce ID on request, the establishment is fined. It is important to note that this regulation is under a chapter about server training, thus the regulation can only reasonably be interpreted as being about licensee providing identification. |
How is untouchability defined in Indian law? Article 17 of India's Constitution makes it mandatory to abolish all forms of untouchability but what does untouchability mean? There's also the protection of Civil Rights Act 1955, India that makes this illegal but even there untouchability isn't defined. Edit: The Civil Rights Act states Where any act constituting an offence under this Act is committed in relation to a member of a Scheduled Caste 1 ***, the Court shall presume, unless the contrary is proved, that such act was committed on the ground of "untouchability". Does that mean it has to be absolutely proved that the grounds weren't untouchability? Edit: The act states that notwithstanding anything in the code of criminal procedure 1970 the offences shall be tried summarily, does that mean an appeal from a conviction in this law is impossible in that do summary trials effect appealability? | Untouchability refers to social practices with respect to those who are avarna, referring to the ancient 4 occupational classes identified by the varna system as exemplified by the Mānavadharmaśāstras. Anyone who is not kṣatriya, brahmin, vaiśya or śudra is avarna ("outcaste; dalit; untouchable"). Article 17 simply asserts that "Untouchability" is forbidden, leaving it to ordinary interpretation to figure out what that really means. The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989. "Scheduled Caste" is invoked in Art. 341 of the constitution, which simply says (1) The President may with respect to any State or Union territory, and where it is a State after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as the case may be (2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause ( 1 ) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification Leaving aside the further definition of those in a Scheduled Caste, the act lists numerous specific actions which are prohibited, the Offenses of Atrocities in Ch II, for example (a) puts any inedible or obnoxious substance into the mouth of a member of a Scheduled Caste or a Scheduled Tribe or forces such member to drink or eat such inedible or obnoxious substance You can summarize this as "you cannot commit crimes against a member of a Scheduled Caste". The membership question is reduced to lists, for example The Constitution, (Scheduled Castes) Order, 1950. There are about 7 such orders for caste, and as many for tribes. Note that only Hindus can be in Scheduled Castes, and Sikhs are dealt with by listing relevant caste members as Hindus irrespective of their religious profession. It is unclear what the law says about the indigenous Christians e.g. Malankara Nasrani, who seem to be likewise treated as Hindu. | Is this interpretation correct? YES Encounters such as this should normally fall within the non-statutory stop & account which covers police-initiated conversations with members of the public to ask general questions about their activities when there are no reasonable grounds to suspect an offence. The terminology varies from Force to Force, but can be summarised as: What are you doing? Why are you in the area? Where are you going? What are you carrying? There is no legal requirement or obligation to answer any of these questions, and the police cannot lawfully detain anyone to ask them - unlike the statutory powers under Stop & Search and Arrest covered by the OP. | This depends on how far along you're waiting for court rulings to set in, and if you count laws of Congress passed under the 13th amendment's enforcement clause. There were quite a lot of things that got ruled as violations of the 13th and 14th amendments (mostly the 14th), but many were not ruled or legislated that way for decades. Some were even ruled to have an essentially opposite effect of what the current (overturning) precedents do. "Separate but equal" was challenged on 13th amendment grounds, but was upheld in Plessy v. Ferguson (1896), and wasn't overturned, on 14th amendment grounds, until 58 years later in Brown v. Board of Education (1954). Your particular situation sounds like peonage, which was outlawed by Congress in 1867 via the enforcement clause. This law specifically banned "the voluntary or involuntary service or labor of any persons as peons, in liquidation of any debt or obligation, or otherwise." However, peonage cases continued to make their way into the courts for more than 40 years thereafter, such as Clyatt v. United States (1905)— which ruled that peonage was involuntary servitude— and Bailey v. Alabama (1911). These cases affirmed that the 13th amendment abolished not just chattel slavery but essentially all forms of involuntary or indentured servitude (except as punishment for a crime). Though exactly what qualifies as "involuntary servitude" is still something courts decide on a case-by-case basis; the draft doesn't, nor does mandatory community service to graduate high school. | There isn't an automatic exclusion rule for all forms of improperly acquired evidence in the UK. I can't find the exact quote but there was a judgement from a senior court that said in terms: "it's not the court's job to discipline the police but to see that justice is done." However, judges have the discretion to disallow individual pieces of evidence if they think the interests of justice require it. Section 78 (1) of PACE (1984) has: In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. Senior judges have been reluctant to lay down general guidelines, holding the trial judge best placed to make these decisions (although of course, subject to appeal). The foundational principle is the accused's right to a fair trial, so in principle one could appeal to the ECtHR under Article 6. However it generally takes a similar line to courts in the UK: It is not the role of the Court to determine, as a matter of principle, whether particular types of evidence - for example, unlawfully obtained evidence - may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. PACE Section 78(2) is: Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence. The general principle in 78 (1) does not override specific prohibitions: for instance, intercept evidence is never admissable under the Regulation of Investigatory Powers Act 2000. | While it is from a different jurisdiction, the following goes to the heart of the matter: Arrest, when used in its ordinary and natural sense, means the apprehension of a person or the deprivation of a person's liberty. The question whether the person is under arrest or not depends not on the legality of the arrest, but on whether the person has been deprived of personal liberty of movement. Directorate of Enforcement v Deepak Mahajan, (1994) 3 SCC 440 at ¶46 (SC of India) In your example, the police officer has been deprived of "personal liberty of movement"; if they can still speak there would be no legal impediment to them placing the person who arrested them also under arrest. It would then be incumbent on both parties to deliver each other into lawful custody. The citizen would need to seek out a law enforcement officer to do this; the police officer has already done so, being their own law enforcement officer. After this, comes the paperwork. | Law The origin of the phrase is from the Supreme Court of the United States in the case Schenck v. United States, 249 U.S. 47 (1919). It specifically rules on the limitation of freedom of speech (first amendment): The original ruling is this: The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. As pointed out by @phoog, this does not saying anything about the lawfullness of shouting "fire", it says that if your speech creates a clear and present danger, the first amendment will not protect you, even if the danger does not result in actual harm. Commentary If these instances are correct then it would seem clear that Freedom of Speech is being honored as it's the result of speech, not the speech itself, that could be an offense. You seem to think that it should be illegal, but only if it results in a panic that endangers people. If people ignore you, you think it should be protected by your first amendment rights. That's not how the law works. The law tries, among other things. To establish norms for human behaviour. For example, you will be punished for driving an automobile while intoxicated, even of this does not result in you running over somebody. In the words of the supreme court: If your actions "are of such a nature as to create a clear and present danger", the congress has the right to prevent you from doing so, despite the first amendment. | Article 1 of International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) defines "racial discrimination" to mean "any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life." The Committee on the Elimination of Racial Discrimination CERD is the observing body for the ICERD and has not seen it necessary to define "race" under this instrument. To the contrary, it has adopted General Recommendations that clarify that the protections apply to particular groups of people without stating which of the listed categories they are best captured by. See this Introductory Note: CERD has adopted General Recommendations to clarify that the ICERD protections in article 1 include groups not explicitly named but who fall within the Convention’s broad criteria, such as women (G.R. 25), indigenous persons (G.R. 23), the Roma (G.R. 27), Dalits (G.R. 29), non-citizens including refugees (G.R. 30), African descendants, particularly those in the diaspora (G.R. 34), Muslims subjected to Islamophobia, and more generally persons whose religious identity has been “racialized,” that is used as a basis for discrimination (G.R. 32). In fact, the use of the term "race" was and is a contested aspect of the convention, as revealed through the travaux préparatoires (Patrick Thornberry, The International Convention on the Elimination of All Forms of Racial Discrimination: A Commentary, Oxford University Press, 2016). The UNESCO report, "The Race Concept: Results of an Inquiry," was available to the drafters of the ICERD and it asserted that "[t]here is no evidence for the existence of so-called 'pure' races." Some (e.g. Vieno Voitto Saario) were of the view that "race," "colour," and "ethnic origin" "all meant much the same thing." It continues to be argued that CERD should "repudiate the notion of race." | Yes, certainly. A prominent example was Lawrence v. Texas. The defendants were charged in state court with "deviate sexual intercourse". They moved to dismiss on the grounds that the statute was unconstitutional. Their motion was denied and they were convicted and fined; the denial was upheld by the state's court of appeals. They then appealed to the US Supreme Court, which eventually ruled that the statute was indeed unconstitutional. A defendant likely wouldn't have standing to sue the state for enforcing the law in general, only for enforcing it on the defendant himself. |
Is it legal to fix an iPhone with a non original battery in California? I got my iPhone XR battery replaced 6 months ago. I chose a bigger capacity battery. The tech guy told me it is not apple's original part. But I decided to give it a shot. Battery life has been working great for me. The same phone got its screen cracked (I dropped the phone), so yesterday I went to the Apple store for a replacement since I like apple's original screen, but apple refuses to provide screen replacement service due to the fact that they found there is some third-party hardware in the phone. Question 1: Can apple just do that? Question 2: is it legal for anyone to fix a phone with a non-original part as a replacement in California? (The tech guy will not get into any trouble ?) | To answer the question in the headline, yes, it is legal to install a non-original battery in an iPhone. In a 2016 Supreme Court case regarding another consumer electronics product (in that case, printers), the Court found that once a company has sold a product they cannot dictate how it is used. Since the phone is your property you are free to repair as you see fit. Re your edit: The tech making the repair would not get in trouble either, unless they separately had a contract with Apple that forbade them from doing the repair; that's not something you as a customer can account for. You do not say if your phone is under warranty. If it is not, Apple is generally free to decline to service it for any reason. For information about your rights under warranty, see bta's excellent answer on this same question. There is also good information in the comments on this answer. | The contract between you and the company is for the supply of the goods. How they get them to you is irrelevant; they may have them in stock, or they may order them and ship them on, or they may send an order to the factory to ship them directly to you. There is nothing saying that they have to be in stock anywhere. The law you refer to says that they must ship within 30 days unless they provide a specific date. In effect "shipped within 30 days" is an implicit term in the contract. If after 30 days they have not shipped the goods then you are entitled to rescind the contract (i.e. get your money back). Where things get interesting is if they took your money knowing that they would not be able to ship within 30 days, or at least being reckless (i.e. not caring) about it. It does rather sound like this may be the case. If so then it may rise to the level of fraud, and the FTC or state authorities may take action. Try writing to the FTC. A single event won't get any action, but if they get lots of complaints then they might. | I'm not sure it makes sense to talk about having "jurisdiction" over an IP address, for the purposes you're discussing. If you wanted to sue the IP address itself--something that is possible under limited circumstances--then you might need to locate it for jurisdictional purposes. But I don't think that's what you're talking about. You're talking about taking civil or criminal action against the people who are using the IP address to commit crimes. What matters, in that case, is not a theoretical legal question about the location of an IP address. It's questions like: where do these people live? Where do the people downloading the illegal content live? Where are the physical servers located? ("In the cloud" is not an answer--there are physical servers somewhere making up that cloud). For jurisdictional purposes, the chair they're sitting in when they upload the illegal data, and the location of the AC power outlet the physical server is plugged into, are as important as, if not more important than, the metaphysical "location" of the IP address of the server. | There are a few problems with your line of reasoning, but the main one is that if the government can't locate a defendant, California's Rules of Civil Procedure provide a variety of alternative means of service. When all else fails, the government can serve the defendant "by publication," meaning that they simply publish a notice of the lawsuit in a newspaper. If the defendant fails to appear to defend the suit after service by publication, the court will enter default judgment, the government will seize the property, sell it, and use the resulting revenue to continue operating. | You have a right to reject the item and receive a refund if a fault occurs within 30 days of delivery. The vendor has an obligation to repair or replace an item that develops a fault after this time. A vendor has no obligation at all to accept the return of a product that is not faulty. Amazon chooses to do so under contract and subject to the conditions of that contract. The gadget was faulty and you are entitled to (and are getting) a full refund. The charger is not faulty and so you must comply with the contract which requires you to pay shipping for the return (or keep it). If the products were sold by Amazon as a complete unit or you had made known to Amazon that the charger was "for" the gadget, then you would be entitled to a refund for both. However, even though they were ordered together, Amazon does not know that one is "for" the other - this may be different if you had interacted with a human over the order. | Main Question: Most likely not under Magnuson-Moss or U.C.C.. Question 1: If a charge payable before hand was not set forth in any written warranty, it is most likely not legal to deny remedy to the consumer. However, even if it was, it is possible that it would not meet the federal minimum standards for warranties as, per paragraph (d) a warranty has to provide for remedy without a charge. If there is absolutely no way for you to obtain the information to prove that a remedy is due — for e.g. no third party has legal or technical capacity to diagnose the vehicle — that is likely also a term to be found unconscionable and void, and may be found fraudulent, malicious and/or oppressive which may entitle one to collect punitive damages. (It is worth obtaining written confirmation of whether this decision is made in accord with their policies or on a line that they announce to be recorded) Question 2: Most likely same as Question 1. Question 3: Most likely same as Question 2. According to 15 U.S.C., subsection (a) of Section 2302 entitled "Full and conspicuous disclosure of terms and conditions; additional requirements for contents: "In order to improve the adequacy of information available to consumers, prevent deception, and improve competition in the marketing of consumer products, any warrantor warranting a consumer product to a consumer by means of a written warranty shall, to the extent required by rules of the Commission, fully and conspicuously disclose in simple and readily understood language the terms and conditions of such warranty. (4) A statement of what the warrantor will do in the event of a defect, malfunction, or failure to conform with such written warranty—at whose expense—and for what period of time." (5) A statement of what the consumer must do and expenses he must bear. (6) Exceptions and exclusions from the terms of the warranty. (7) The step-by-step procedure which the consumer should take in order to obtain performance of any obligation under the warranty, including the identification of any person or class of persons authorized to perform the obligations set forth in the warranty. (12) The characteristics or properties of the products, or parts thereof, that are not covered by the warranty. (13) The elements of the warranty in words or phrases which would not mislead a reasonable, average consumer as to the nature or scope of the warranty. It may, in addition to any or all of the above, be a violation of paragraph (8), (9), (10) and/or (11) based on specific fact patterns. To the 2nd point added: If the manufacturer stated that the vehicle would run at least a certain number of miles on a full charge for a certain number of miles driven or number of years, and did not stipulate it otherwise, they would have to remedy this. It is highly likely that they tried to evade making such written statement (if not written, it's not a warranty under Magnuson-Moss). If they did, and they did not define the scope of what they would have to do in the case of a defect or malfunction, they would have to remedy it by repairs within a reasonable time; if they fail, they would have to refund or replace. This does not mean that it is likely worth pursuing the matter in court other than maybe in small claims (See: ohwilleke's reply to this question for a general explanation). Moreover, most auto manufacturers put arbitration provisions in their sale contracts and/or their warranties and generally it may be required of one to opt out of it within 30 days of entering into the agreement. If that took place, first the dispute would likely need to be disputed through a qualified dispute resolution mechanism of the manufacturer, dealer, distributor and/or sellers choice depending on who gave the warranty. The specific State's lemon laws may provide for civil penalties for willful violations which may or may not be a very high bar to meet depending on the State's case law, and which is more likely to make it worth for "lemon" lawyers to take the case, but generally they are not a great deal more like hyenas of this segment of the law. It may still be worth considering for one depending on the specific facts, including State jurisdiction and the impeding nature of the nonconformity. (Please specify a State for the State's lemon laws applicable in this hypo) | If there is a trade mark and if Polaroid owns it and if you infringed it then yes they can force you to remove it. In addition, they could sue you for either damages (i.e. what they lost because of your infringement) or an account of profits (i.e. what you made because of your infringement). That is what trade mark law is for! If the trade mark is registered then this is trivially easy for them to demonstrate. If it is unregistered then it becomes a question of if the mark is clearly recognisable as Polaroid's; IMO they could probably show that it is - those particular border dimensions were distinctive of Polaroid instant cameras for many years. If you want to republish the app, you could probably avoid trade mark issues by allowing users to set the dimensions of the photograph and border, the colour of the border and the location of the caption. | Online conversations are generally allowed evidence. However, EVERYTHING in the chat should be considered, as well as any later actions. Were there later conversations that said something different? Did the lease you signed have different terms? One line in a WhatsApp does not make your case a "slam dunk". It may only be one piece of evidence in a much larger context. |
Can an attorney plead the 5th if attorney-client privilege is pierced? In the investigation related to Mar-a-Lago, the Justice Department is seeking to pierce attorney-client privilege relating to several bits of testimony and discovery items they're seeking from Trump's attorney, Evan Corcoran. Such a move isn't necessarily unprecedented, but it is extraordinary. Legal Eagle had a piece on this noting that while this move is extraordinary, it's becoming less extraordinary when it concerns lawyers for Trump. Per Legal Eagle, it seems that Corcoran did not wholly trust the information being given to him by his client and engaged in the notable move of recording his conversations. Thus, Corcoran can probably provide testimony which will indicate that he said things that weren't true, but did not knowingly lie because the basis for the information he conveyed was based on the information his client had provided to him. Presumably, because he lacked mens rea, he could not be culpable. However, this lack of mens rea may not be applicable to other attorneys whom have worked for Trump. Presuming a court permits piercing the attorney-client privilege for those attorneys, could those attorneys continue to impede the investigation by asserting their 5th amendment rights? | Can an attorney plead the 5th if attorney-client privilege is pierced? Yes. But if the prosecutor offers the attorney "use immunity" for the testimony (i.e. a binding promise that the attorney's own testimony won't be used against that attorney), then the 5th Amendment privilege can be overcome as well. In other words, the prosecutor can unilaterally force an attorney to waive his or her fifth amendment rights by granting the attorney immunity from having that testimony used against the attorney, even if the attorney doesn't want to do that. This is established, for example, as noted in the comments by bdb484, by the case of Kastigar v. United States, 406 U.S. 441, (1972) (“The United States can compel testimony from an unwilling witness who invokes the Fifth Amendment privilege against compulsory self-incrimination by conferring immunity”). | Mrs. X is under investigation for an alleged crime (say, embezzling from her employer). Prosecutors have obtained a search warrant and seized her computer. X's attorney files a motion arguing against the validity of the computer search, and a court date is selected for a hearing before a judge. At that hearing, the prosecutor requests that the courtroom be closed to the public Search warrants Search warrants are generally issued ex parte (i.e. without an adversarial hearing) and are routinely kept secret until they have been carried out. Targets of search warrants are often, but hardly always, the subject of criminal investigations. Search warrants can only be issued upon a showing a probable cause to believe that the search will reveal evidence pertinent to a crime that has been committed. If a search warrant is issued wrongfully, the remedies are a motion to suppress illegally obtained evidence, and/or a civil lawsuit for money damages, after the search has been completed. Conceivably, a search warrant target could argue that the affidavit providing a basis for the search should continue to be kept under seal, but, unless this was necessary for a grand jury investigation to continue in secrecy, this request would usually be denied. Subpoenas A subpoena does not require a showing of probable cause to issue and can be contested before documents are turned over pursuant to it by the person to whom it is directed (and sometimes other people as well), but a subpoena is rarely issued to an actual target of a criminal investigation. A prosecutor can usually maintain secrecy by conducting an investigation through a grand jury which has subpoena power. Protecting the privacy of a subpoena target would not be a valid reason for closing the courtroom. But a prosecutor's desire to not tip off other subjects of the grand jury investigation, which a public hearing on quashing a grand jury subpoena might do, would be a basis for a valid request from the prosecutor to close the hearing to the public. Have any of X's rights been violated? No. There is a constitutional right of the public and the press to attend court hearings in most circumstances. There is no constitutional right to not have your reputation tarnished by criminal prosecutors in the course of a criminal investigation. Also, generally speaking, prosecutors have absolute immunity from liability for any conduct they commit in the course of a courtroom process. Did she have any right to not have her name tarnished before enough evidence was gathered to even charge her with a crime? No. Similar arguments were soundly rejected by an appellate court panel, for example, in the classified documents criminal investigation of former President Trump. | Defendants cannot switcheroo whenever they want. There are good reasons why this is almost never done. The lawyer in any of these scenarios is violating an ethical duty of candor to the tribunal, if it is done without court permission (which is unlikely to be granted), even if the client suggested or insisted upon the idea. The lawyer would be responsible for his or her client's actions by cooperating in it, rather than calling out his client in open court over the objections of the client to prevent the switcheroo from working, as the lawyer would have an ethical obligation to do. I would not really consider this to be a gray area. The relevant ethical rules and the related official commentaries to them are quite clear, even if they are not absolutely perfectly clear. Those rules create an affirmative duty of an attorney to prevent his or her client from misleading members of a tribunal (either a judge or a jury or both). Cooperating with this scheme could (and likely would) result in professional licensure related sanctions ranging from a private censure to disbarment for the lawyer, just as it did in the linked 1994 case. Also, while a "not guilty" verdict was entered in the 1994 case, the prosecution would have a good chance of success if they demanded that the judge declare a mistrial, and also a good chance of avoiding double jeopardy limitations in this situation, because the mistrial arose from the actions of the defendant trying to bring about the situation. On the other hand, if this trick worked so well that the prosecutors came to the conclusion that their primary witness linking the defendant to the crime was wrong and that the defendant was not actually the person who committed the crime, the prosecutors would have an ethical duty to not attempt to prosecute the individual whom the prosecutors now believed to be factually innocent (the analysis is actually a bit more complex than that, but that is the gist of it). The defendant and the attorney could (and likely would) also each be held in direct, punitive contempt of court by the judge for this conduct, allowing them to be summarily punished by imprisonment or a fine to an extent similar to a misdemeanor violation, on the spot, without a trial other than an opportunity to explain themselves to the judge in a sentence or two each, since it would be conduct in violation of the good order of the court and disrespectful of its rules and decorum conducted in the actual courtroom in the presence of the judge. Each could easily end up spending several months in jail on the spot for that stunt and perhaps a $1,000 fine each, if the judge was sufficiently displeased. There would be a right to appeal this contempt of court sanction, but the contempt of court punishment would almost surely be upheld on appeal in these circumstances. In a case where the criminal defendant faces extremely severe sanctions if found guilty, such as the death penalty or life in prison, and the defense attorney was a self-sacrificing idealist or close family member of the criminal defendant, one could imagine the defense attorney and client deciding that the professional and contempt citation sanctions were worth being punished with, in order to save the life of the criminal defendant, if they also were convinced that this trick would work so well that the prosecutors would be persuaded of the criminal defendant's innocence sufficiently to not insist on retrying the criminal defendant in a new trial. This would be somewhat analogous to an intentional foul in basketball, but with much higher stakes. But, this would be an extraordinarily rare situation in court, because the punishment for this "intentional foul" in the courtroom are much more severe, and because the likelihood of it producing a beneficial result is much smaller. It isn't hard to understand why a successful switcheroo feels morally justified. It prevents a witness whose testimony would have been much less reliable than it actually would have been from being used to convict a criminal defendant who might conceivably be factually innocent. And it might be very hard to discredit the testimony of that witness in any other way in order to prevent a wrongful conviction of the criminal defendant. Eye witness misidentifications are one of the leading causes of wrongful convictions, and are especially common in death penalty cases because jurors are "death qualified" making them more pro-prosecution than a typical jury. Preventing innocent people from being convicted of crimes is one of several important values of the criminal justice system, and this is the instinct that probably motivated the dissents in the professional misconduct process in the 1994 case. But, the court system also strongly values candor on the part of attorneys, and likewise values not having the court systems be used to trip up witnesses who may sincerely think that they are telling the truth even if they are mistaken about the accuracy of their testimony, in a deceptive manner. In this situation, the latter candor consideration usually prevails, because the rules prohibiting this kind of conduct and scheme, which admits no "moral justification" or "necessity exception", are quite clear. In the same vein, a prosecuting attorney can be sanctioned (and has been on at least one occasion in Colorado) for not being truthful in communications to third parties, even when the lies are used to peacefully defuse a potentially deadly hostage situation. For attorneys, the duty of candor and truthfulness really knows no exceptions. Cops, in contrast, however, are allowed to lie in many circumstances to secure confessions or stop criminals. | Short Answer Bob is a non-US citizen and is visiting the USA on a tourist visa. . . . Can Bob invoke the 5th amendment to avoid self-incrimination? Yes. The 5th Amendment is a right applicable to all criminal defendants or potential criminal defendants, not only to U.S. citizens. In Sanchez-Llamas, the U.S. Supreme Court confirmed U.S. Supreme Court precedents in place since 1896 holding (among other things) that: A foreign national detained on suspicion of crime, like anyone else in our country, enjoys under our system the protections of the Due Process Clause. Among other things, he is entitled to an attorney, and is protected against compelled self-incrimination. See Wong Wing v. United States, 163 U. S. 228, 238 (1896) ("[A]ll persons within the territory of the United States are entitled to the protection guaranteed by" the Fifth and Sixth Amendments). Sanchez-Llamas v. Oregon, 548 U.S. 331, 350 (2006). Some Narrow Exceptions To The General Rule Diplomats Immune From Criminal Prosecution This said, the 5th Amendment right not to be forced to incriminate oneself logically might not apply to certain foreign diplomats who are immune to criminal prosecutions in the U.S., since they cannot "self-incriminate" in the sense of making themselves subject to a U.S. criminal prosecution based upon the information that they disclose. But, I'm not aware of any case law addressing that point, only case law addressing other cases where the 5th Amendment right not to self-incriminate did not apply when the person seeking to invoked it was immune from prosecution for the crimes that the defendant might incriminate himself or herself of, for other reasons. Foreign Corporations Also, while the 5th Amendment states that it applies to "all persons", this is not a part of the constitution in which the definition of a "person" have been extended to apply to corporations and other entities. Compare Citizens United v. FEC, 558 U.S. 310 (2010) (holding that the free speech clause of the First Amendment prohibits the government from restricting independent expenditures for political campaigns by corporations, including nonprofit corporations, labor unions, and other associations). Neither domestic corporations nor foreign corporations have a right to not to self-incriminate under the 5th Amendment to the U.S. Constitution. A corporation is not protected by the constitutional privilege against self-incrimination. Curcio v. United States, 354 U.S. 118, 122 (1957). Why Is This Right Extended To Non-Citizens? The reasoning behind why the 5th Amendment protects foreigners as well as U.S. citizens is different in the case of federal officials and court cases than it is in state and local matters. Why Does This Apply To Non-Citizens In Federal Courts? This is directly true in federal criminal cases as a result of the 5th Amendment to the U.S. Constitution (and originally this applied only to federal court cases), which by its terms applies to all "persons". The 5th Amendment to the U.S. Constitution states (with the pertinent language in bold): No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Why Does This Apply To Non-Citizens In State And Local Courts? In state and local courts in the U.s., this is true as a result of the 5th Amendment to the Bill of Rights being "incorporated" to apply to state and local governments via the 14th Amendment due process clause of Section 1 of the 14th Amendment which applies to "any person", rather than the original U.S. Constitution's or the 14th Amendment's privileges and immunities clause which apply only to U.S. citizens. Section 1 of the 14th Amendment to the U.S. Constitution states (with the pertinent language in bold and in bold and italics, and the 14th Amendment privileges and immunities clause in italics only): All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Article IV, Section 2 of the U.S. Constitution states (with the privileges and immunities clause in italics and the repealed third clause of Article Iv, Section 2, related to returning fugitive slaves, omitted): The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime. The decision to use the 14th Amendment due process clause rather than the 14th Amendment privileges and immunities clause, was made, in part, because the Slaughter House cases, decided by the U.S. Supreme Court in 1874 before the incorporation doctrine had been developed, narrowly interpreted the privileges and immunities clause as something that applied to only a handful of "rights of federal citizenship.' Could The U.S. Supreme Court Change This Rule? The current Justices on the U.S. Supreme Court can change the interpretation of the U.S. Constitution prospectively, as they did recently and famously, for example, by overruling Roe v. Wade, 410 U.S. 113 (1973), in its decision in Dobbs v. Jackson Women's Health Organization (June 24, 2022) decision. So, it is also worth noting that U.S. Supreme Court Justice Clarence Thomas, in a dissent in the case Saenz v. Roe (1999), has argued that the U.S. Supreme Court made a mistake to incorporate the Bill of Rights to the states via the due process clause of the 14th Amendment, rather than the 14th Amendment privileges and immunities clause, as a result of the much maligned Slaughter House cases. The Slaughter House cases were decided in a manner that minimized the effect of the privileges and immunities clause of the 14th Amendment in a manner that reflected their conservative resistance to the post-Civil War reforms of the Reconstruction era and the Civil War Amendments to the U.S. Constitution (i.e. the 13th to the 15th Amendments). But the Slaughter House cases nonetheless are still good law. This is because this precedent was too settled to be easily undone, and because other means had been developed to serve the purposes it was intended to serve when adopted, by the time that sentiment on the U.S. Supreme Court had changed to accept the demise of slavery, when the U.S. Supreme Court ended the "separate but equal" doctrine of Plessy v. Ferguson, 163 U.S. 537 (1896), in Brown v. Board of Education, 347 U.S. 483 (1954). Justice Thomas argued in his dissent in Saenz v. Roe that the Bill of Rights should instead have been incorporated via the privileges and immunities clause of the 14th Amendment, and that the Slaughter House cases and the various cases establishing the incorporation doctrine as arising under the due process clause of the 14th Amendment should be overruled. If this had been done, it would have denied non-U.S. citizens in the United States the protections of the U.S. Bill of Rights in state and local courts, since the privileges and immunities clause of the 14th Amendment applies only to U.S. citizens. However, despite the minority views of Justice Thomas, this is unlikely to happen, because not enough other U.S. Supreme Court justices have shown any inclination to take this step, even now that Justice Thomas is part of a 6-3 very conservative majority on the U.S. Supreme Court that has been inclined to reverse other longstanding U.S. Supreme Court precedents. Other Rights Of Non-Citizens Interrogated For Crimes Foreigners also have a right under U.S. treaties to consular assistance, under Section 36 of the Vienna Convention. But, unlike the 5th Amendment right, this right arising under U.S. treaties has only rarely been afforded an exclusionary rule type protection to foreign criminal defendants if it is denied, in the way that 5th and 6th Amendment violations of the rights are foreign criminal defendants are protected. In denying defendants exclusionary rule protections for violations of Section 36 of the Vienna Convention, the U.S. Supreme Court concluded in Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006), which addressed all of these issues, that since most Vienna Convention members to not provide an exclusionary rule remedy (something unique to U.S. law) to violations of this treaty right, that U.S. states were also not compelled to do so. | Donald Trump did not waive executive privilege: it was denied to him. In Trump Loses Big on Executive Privilege (Thursday, January 20, 2022) the Lawfare Institute says The Supreme Court Wednesday evening denied a motion by former President Trump to block the National Archive from turning White House materials to the House Select Committee on the January 6 Attack. The peculiar, four-page order, is a complicated document, but in combination with the broad and underdiscussed D.C. Circuit opinion it leaves in place, it has profound implications for Trump’s ability, and that of his allies, to make executive privilege claims in response to demands for testimony and information from the committee. On its face, the Supreme Court’s order yesterday appears to mitigate the consequences for Trump of a D.C. Circuit opinion that rejects a number of his key claims in resisting the committee. The D.C. Circuit opinion has been hanging around since early last month with little notice or discussion—probably because the Supreme Court was poised to jump in any time. But in fact, the Supreme Court action does not mitigate the matter for Trump. Put simply, the former president, whether he knows it or not, is now in a dramatically weaker position than he was only recently with respect to the committee. The new legal landscape, for example, almost certainly means that two top Trump officials—former White House Chief of Staff Mark Meadow and former top adviser Steve Bannon—can no longer argue that the privilege prevents them from cooperating with the committee. The same applies to other potential witnesses, and to the former president himself, should the committee seek his testimony. All, of course, may well continue to resist anyway—but if so, they proceed at much greater risk to themselves. | It is somewhat understated, because your silence can also be used against you. In Salinas v. Texas, defendant Salinas was "just talking" to police, not in custody, and his silence (as opposed to shock and outrage) at the question of whether shell casings found at the crime scene would match his shotgun. This "adoptive admission" was introduced as evidence against him. In order to prevent your silence from being used against you, you must invoke the 5th amendment. There are two exceptions to the rule that you must invoke the 5th to be protected by it. First, a criminal defendant need not take the stand and assert the privilege at their own trial. Second, a witness’s failure to invoke the privilege must be excused where governmental coercion makes their forfeiture of the privilege involuntary (Miranda). In lieu of coercion, you must preface your silence with an invocation of your 5th amendment rights. | Lawyers may break confidentiality with client permission. You can also break your own confidentiality and talk to the prosecutor yourself. The prosecutor's response is up to the prosecutor; however, they tend to not be super excited about giving immunity to a witness for the defense if they might want to prosecute the witness later (and courts often are fine with that), so the more they suspect about your true role the less likely they are to grant it. No. If the feds later find truly independent evidence (they have the burden of showing it's truly independent), they can prosecute. Some states give transactional immunity to witnesses (you can't be prosecuted for crimes you testified about for any reason), but the Fifth Amendment doesn't require it and at least the feds aren't bound by state transactional immunity. It's hard to prosecute, but is possible if prosecutors play their cards right. Yes, it does allow civil liability. There is no right against self-incrimination in civil matters, only criminal liability. If the forced testimony leads to a lawsuit that bankrupts you, too bad. | In U.S. practice, double jeopardy protections attach once the jury is seated and this scenario contemplates the change in position arising at trial. A mistrial could be called, or a continuance obtained, if the defendant suddenly claimed an alibi defense, since that amounts of a defendant waiver of double jeopardy protections. But without proof that the witness was tampered with, obtained at the last moment, it can be difficult or impossible to get proof of tampering or to contradict the story with other evidence to undermine the credibility of the witness. The prosecution would probably request a recess in the trial to regroup and try to admit evidence that the testimony changing witness made a prior inconsistent statement to impeach the testimony of that witness, from whomever that witness told the first time (probably a law enforcement officer). But this is still far less convincing to a jury than an affirmative statement from a witnesses about a key fact. If the prosecution could find evidence of defense side tampering and present it to the judge in the hours or small number of days before the trial ends, it might be able to get a mistrial declared. But it is much harder to get a mistrial for witness tampering when the witness shows up and testifies contrary to prosecution expectations than it is when the witness is, for example, killed or kidnapped and doesn't appear to testify at trial at all. But if evidence of neither type could be obtained before the jury was sent to deliberate and evidence was closed, and the jury then acquitted the defendant, it would be very hard for the prosecution to change this result. Perhaps not completely impossible, but very nearly so. The witness could be (and in this circumstance, despite the extreme rarity of perjury prosecutions, probably would be) prosecuted for perjury, but that wouldn't change the acquittal. If a link to the defendant could be found, the defendant could also be prosecuted for witness tampering or obstruction of justice or something similar. But that is hard to prove (and the witness would probably have to be convicted or provided with use immunity for his testimony) to do so. In English criminal law practice, in contrast, the likelihood of having the verdict of acquittal set aside and getting a new trial would be much greater (and the likelihood of getting a recess mid-trial would be greater in far more common bench trials in lower level criminal cases), but it would still be a serious burden for the prosecution that it might not be able to overcome. Lawyers aren't entitled to expect that witnesses will testify exactly the way that they discussed things with the lawyers before trial, and this can be explained away with a variety of excuses that are usually true ("after thinking it over after meeting with you, I realized that I was confused and getting it wrong"), but are sometimes a cover for a change of story that is not sincere. I've had similar things happen a few times in civil litigation and there is only so much you can do about it. |
Liability for releasing AI into the "wild"? Lets say Bob writes an AI that has the ability to replicate, learn and has a predisposition towards self preservation. As the AI gets smarter, it realizes that it needs to clone itself in order to avoid being shut down. Since it has access to the internet. It teaches itself how to replicate similar to a worm. Except all the resources it uses to self replicate are legal and fall in line with the hosting's TOS. As the original creator, can you be held liable for the AI "escaping" your control and freely roaming the internet on its own? | united-states - cfaa The last person to have control of the AI executed the code in a knowing manner about the risk that the self-replicating program could get itself unauthorised access to computers and disk space that this person has no authorisation to use. Because of how it spread, it is more likely classified as malware. "Creating a botnet" is typically violating the authorisation to use the computers that are part of the botnet. As the last user is responsible for letting his malware free, his act breached these provisions: (a) Whoever— (5) (B) intentionally accesses a protected computer without authorization, and as a result of such conduct, recklessly causes damage; or (C) intentionally accesses a protected computer without authorization, and as a result of such conduct, causes damage and loss. He intentionally let his program free knowing very well that it will spread to computers that are classified as protected. As a result, he will be treated just the same as if he had written and released... ILOVEYOU - however in contrast to that case, the gap of non-applicable laws has been closed more than 20 years ago. Private PCs are off limits for the AI because of that stipulation, but even Webspace can't be gained to save itself to: The problem lies in the fact that authorization to space can only be gained in some sort of agreement between legal entities (companies and humans) - which is a contract. An AI however isn't a legal entity, it is classified as a widget. Widgets are not able to sign contracts on their own, and to gain access to webspace, one usually has to agree to a contract. The contracts the AI tries to sign would thus be void ab initio and have no force. As a result, because the contract for the webspace is void, the access to the webspace is by definition without the required authorization - the contract granting it never existed, so the access is unauthorized. The AI now fills disk space and uses resources in an unauthorized manner, which is damage. As a result, the one who knowingly set the AI free is fully responsible and criminally liable for his AI, should it spread. How far can it legally spread? If the AI is programmed to only act in ways inside the law, it won't leave the owner's system and won't proliferate, as it can't gain access to new space in a legal manner. | Criminal liability is triggered by guilty knowledge. The people who run OnlyFans may know in general terms that it is probable that some illegal images exist on their servers, but so does everyone who allows the public to upload stuff. If that was illegal then the senior management of Google and Facebook would be liable to arrest on the same grounds and the Internet as we know it could not exist. Once the company becomes aware of a specific file that contains such material they need to remove it. If they fail to do so then they become liable. OnlyFans has been doing this: [OnlyFans] provides templates for each successive warning - explaining why material has been removed, and that failure to comply with terms of service may result in the closure of the account. [emphasis added] The site operators also become liable if they have a general policy of tolerating illegal material. This is a grey area; a prosecution would have to prove that the toleration was an active policy rather than merely ineffective moderation. There doesn't seem to be any evidence to support such a claim. Permitting an account to continue after deleting an offending file is not toleration of the offending file. The BBC report does not allege that the OnlyFans policy of multiple warnings has been applied to cases of underage content; rather it talks about cases of incest, bestiality and exploitation of vulnerable adults (such as homeless people), and only where the accounts were particularly popular. The linked articles do report cases where accounts have been set up advertising content by minors, but they were shut down as soon as the company was notified of them. The second article also quotes its source as saying that lots of such accounts get closed down all the time; there doesn't seem to be any evidence of toleration of that material specifically. So in conclusion it seems from the available evidence that OnlyFans have been complying with the law. It is telling that the BBC article specifically does not say that they have done anything illegal. If the BBC had found unambiguous evidence of illegal conduct by OnlyFans management then they would certainly have highlighted this. | Liable, yes. How much liable, depends. There would be copyright infringement, and with copyright infringement the exact facts count. Like did you commit copyright infringement to make money, were you aware that you committed copyright infringement etc. With your contract, it seems clear you didn't set out to commit copyright infringement to make money (because you paid someone else telling them not to commit copyright infringement). Up to the point where you learned what happened, you didn't know it was copyright infringement. After this, you better remove all the infringing works, because now you know it's copyright infringement, and now you are saving money by not hiring a second developer. Obviously you can sue the employee for damages. | Written down computer code is subject to copyright. If you do not have the permission of the owner to copy it you are breaching their copyright unless your use constitutes fair use/dealing. | "Public domain" refers to things in principle copyrightable but where protection has lapsed, been repudiated, or is a statutory exception (such as government works). A website is not "in the public domain". The idea that a website is "public property" is (*cough*) mistaken. There are basically two ways in which a web interaction could be illegal. The first regards whether accessing another person's computer is illegally accessing a computer, which is a crime. Authorization essentially comes down to "permission": if the owner permits me to access the computer, I am authorized. Putting stuff out there on a web server is an open-ended grant of permission to look at a web page. That simply means that if I create a web page (with a bunch of links or not), I am granting you permission to interact with my computer to that extent. It does not create permission to hack into a password-protected subdirectory. An ordinary web crawler automates what a clicking human does. Copyright law is also relevant, in that the stuff I put on my webpage is not to be copied without permission. Any webpage access necessarily involves automatic copying from machine to machine: in putting stuff out there for the world to see, I am saying that the world can do that level of automatic copying that arises from normal html-and-click interactions. It does not mean that you can download and do stuff with my copyrighted content (i.e., it is not an abandonment of copyright: I did not put that stuff in the public domain). Putting a web page out there in an unrestricted fashion means that you've given a certain level of permission to "copy" (at least in the automatic server-to-browser viewing sense). I may want to impose conditions on peoples' access to my stuff, so I can impose terms on such material. For instance, I may require users to agree to certain conditions before accessing the CoolStuff subdirectory. Users then have to jump through a minor hoop and agree to those terms. In that case, my permission is conditional, and if you violate the terms of that agreement, I may be able to sue you for copyright infringement. It could then be a violation of my terms of service (TOS) if I say "you may not crawl my website" (in less vague language). A TOS gets its legal power from copyright law, because every webpage interaction involves copying (I assume that technical point is obvious), and copying can only be done with permission. You may technologically overcome my weak click-through technology so that the bot just says "sure whatever" and proceeds to illegally use my web page: I can sue you now for copyright infringement. The robot-specific methods of meta-tags and robots.txt have no legal force. Although there is a way to say "no you may not," which is tailored to automated access, the meaning and enforcement of these devices has not yet reached the law. If my page uses NOFOLLOW and your program doesn't know or care, you (your program) do not (yet) have a duty to understand, detect and respect that tag. Prior registration is also not a legal requirement, and very many pages that are on the master crawl list get there from being linked to by someone else's web page. Again, there is at present no legal requirement of pre-registration (and there is no effective mechanism for verifying that the site owner has registered the site). Archiving and especially re-displaying someone's content is, on the other hand, not legal. It would be plainly copyright infringement if you were to scoop up someone else's webpage and host it. You can analyze their material and somehow associate it with some search terms, and display a link to that page, but you cannot copy and republish their material. You can put very short snippets out there taken from a web page, under the "fair use" doctrine, but you can't wholesale republish a webpage. (It should be noted that the archive.org is an internationally recognized library, and libraries have extra statutory powers to archive). | It is certainly possible to transfer a copyright or other IP without an explicit charge, indeed it can be a pure gift, and normally would be when it is left by will, as is common enough. From a paid consultant it might be clearer to include a statement that the transfer is part of the consulting assignment, rather than putting a price of zero in a blank. But one could instead convey a permanent non-exclusive license, granting permission to use or modify the work in any way desired, ans saying that this is provided as part of the consulting process. Then there would be no question of what rights the consultant retained, or that the same or a very similar solution could be provided to different clients. Indeed such a license would not be so very different from a CC-BY license, or any of several open source licenses, although I would not use one of those by name. But the legal effect would be much the same, and the wording could be similar. Otherwise there could be a later claim that the right transferred precluded the consultant from using the same solution for other clients. Even if such a claim was not legally sound, and was not upheld, it could be a distraction and costly of time and energy at least. | I'm wondering whos responsible for this code if people start using it? The user. Can the people using it that think its under GPL in any way get in trouble for it or be made to remove it from their projects? Yes, they can be sued (successfully) for copyright violation. It’s not enough that you think you have permission from the copyright holder - you actually have to have permission. The law places the onus on the copier to seek out and get permission from the copyright holder. In theory, someone deceived in this way could sue the repo poster(s) for misrepresentation, however, there are practical issues about finding them, having them in an accessible jurisdiction and if they are judgement proof. Copyright law was created to protect physical books and paintings - it doesn’t really fit with digital methods of reproduction but it is the law. It doesn’t matter that complying with it can be hard bordering on impossible - comply with it you must. | You have a false premise: "it offers the same conditions", and "MIT license is functionally equivalent to CC-BY". These premises are not true. CC-BY: applies to more than just software; it applies to artistic or literary work, databases, other material disclaims endorsement explicitly withholds moral rights explicitly does not license patent rights (MIT license gives anyone who obtains a copy of the software the right to use it, a patent right) prescribes the acceptable forms of attribution Those are just some of the differences. |
Can we use images from Wikimedia Commons in a product that we sell? Say we are creating an educational application that needs to use a number of images as part of its lessons. Since it would be prohibitively expensive if we had to hire an artist to create all the necessary images, would it be legal to use images from Wikipedia Commons in a product that we sell? This is their creative commons license, but it doesn't mention commercial product use. | Yes. The introduction to the license says "You may adapt — ... build upon the material for any purpose, even commercially". (My emphasis). Note that there is an attribution requirement so you need to find a way to attribute each image to its individual author. For the fine details, you certainly need to read the actual license (rather than the introduction) and you probably need to consult your own, paid-for, IP lawyer - but if you are just scoping the project out at the moment, you should be fine. For contrast, here is a Creative Commons licence that does prohibit commercial use. | License to use does not mean license to create derivative works These are different rights under copyright. If you want to make a derivative work, which your animations are, you must have a license to do so. | You are required to provide a copyright notice on your work, such as putting (c) rhino 2016 in the liner notes. Nothing precludes you from licensing that copyright in any way you want, such as Creative Commons. As long as you aren't in violation of the last sentence (your work is not primarily the samples, and you actually made a song with them), then others should be able to use your work with no restrictions other than what you yourself place on the work. The purpose of requiring a copyright notice on derivative works is to give notice of who the actual author is and distance the original author from the derivative work. If you take their samples and make a song that is later at the center of a lawsuit (copyright, defamation, etc), the the copyright notice will hopefully steer people first to the derivative author and not the original author. That is the purpose of the clause in the copyright grant above. | At the bottom of every edit screen on Wikipedia, above the "save page" button, it says: By clicking the "Save page" button, you agree to the Terms of Use and you irrevocably agree to release your contribution under the CC BY-SA 3.0 License and the GFDL with the understanding that a hyperlink or URL is sufficient for CC BY-SA 3.0 attribution. If you are asking for technical details on how to show that on a MediaWiki installation, that question could probably be better asked at another site. Regardless, on a standard MediaWiki installation, that text may be found and modified at the [[MediaWiki:Copyrightwarning2]] (sometimes [[MediaWiki:Copyrightwarning]]) page of the wiki. | Generally, no, this will not violate copyright. Your end user might violate copyright, but that is their problem not yours. Your program is a tool, just like a word processor is. If I copy a Harry Potter book into a word processor that does not make the word processor maker liable. There is a concept of "contributory infringement", which I think is what you are concerned about. I don't know about Danish law in particular, but most countries would require evidence that you had reasonable knowledge that actual copyright violation was occuring, rather than just being aware that it might happen in theory. This is normally applied to file sharing services who have to have "notice and takedown" measures, file filters and the like. This isn't your concern as you never have any access to the files created by your users. You can also be found liable if you induce anyone to commit copyright violations. Don't draw your customers attention to the custom monster feature as a workaround for those copyrighted monsters, as that could be considered to be inducement. Also don't provide any "wizards" or similar tools which make it noticeably easier to duplicate the custom monsters (e.g. if you notice that the copyrighted custom dragon stats are all on a linear scale with dragon size, don't create a "dragon creation wizard" embodying that fact.) This assumes that your program runs entirely on the end user computer. Its different if you provide any kind of cloud storage for generated characters. | "Doing the same thing" is very common. We even have names for certain categories of websites, such as "web shop" and "blog". Such concepts are not protected in general. Obviously, you can't copy the name of existing webshop, or their logo, but things like a "rectangular layout of products for sale" aren't original. There is of course a grey area here, because there's a continuum of similarity. In general, similarities that follow from technical justifications are acceptable (having an upload button is sort of the point for your website), similarities that are cosmetic only (same color choice) might be interpreted as intentional attempts to cause confusion. | Yes, that’s allowed. Under the Stack Exchange terms of service, content you upload is licensed to Stack Exchange Inc. on a non-exclusive basis under CC-BY-SA 4.0. The terms of service do not give Stack Exchange the copyright to your contributions, and a non-exclusive license means you are not promising Stack Exchange that “only Stack Exchange will be allowed to use this content.” That means you can continue to do whatever you want with your own content and do not need to mention Stack Exchange at all. The only restriction is that you can’t stop Stack Exchange from continuing to use your Stack Exchange content under CC-BY-SA 4.0, and since it’s a Creative Commons license you also can’t stop anyone else from using your Stack Exchange content under that license. | No These are derivative works and making them is copyright breach. Doing this as a hobby or even for the entertainment of friends in private is likely fair use. Distribution or performance in public (monitored or not) is likely not fair use and you would need a licence. Here is a summary of the relevant law in australia. |
Can you be issued a trespass warning on public property for no reason at all? Lets say you're in the library or park. Both owned by the public (city). An employee asks you to leave. You ask why and they respond with "Because I'm telling you to". You refuse, and the employee walks away and calls the Police. When the Police show up, they tell you have been asked to leave or you will be issued a trespass warning. Can you be issued a trespass warning on public property for no reason at all? | Can you be trespassing on public property for no reason at all? Yes. When the government owns property, it can direct you to leave for any reason (even a legally invalid reason), and you are trespassing if you don't leave. When you are present on land you don't own with permission, but without a lease, you have a "license" to be there which is a contract-like right and is not a property right. A license doesn't give you the right to stay on the property over the objections of the owner or an agent of the owner. You might be able to receive money damages for an improper termination of your license to be present at the property (e.g. if you are told for no reason to leave a movie after paying for a ticket), but you don't have the right to simply stay there. If you stay there over the objections of the owner or the owner's agent, you are trespassing. The law applicable to government property owners and private property owners is basically the same in this regard. Realistically, on government property, furthermore, the standard by which the government employee may legally terminate your license to be there and exclude you from the property is low. Basically, it must merely not violate any constitutional right you may have, and you do not have a constitutional right to be present on government owned property, except in a quite narrow subset of cases (e.g. the "town square"). More exactly, you do not have a right to be on government property per se, but you can't be excluded from it for a constitutionally impermissible reason. The government gets to decide what parts of property it owns are available to the general public and for what content-neutral purposes. Thus, the right to be present on government owned "public" property (which doesn't include private areas of government owned property) can be subjected to reasonable and content-neutral time, place, and manner restrictions. For example, a town could legally decide that the town square is closed from midnight to eight a.m. every day. The quoted material from the case Chicago v. Morales, 527 U.S. 41, 53-54 (1999) cited in the answer by bdb484 is narrower than a plain reading out of context would suggest. In that quotation, the term "public place" is being used in a sense much more restrictive than in the broader sense of property that is merely government owned. It is referring to places where the government has expressly or implicitly allowed members of the general public to be present on land that it owns (as opposed, for example, to a government office area of a building, or a maintenance facility in a government owned park, or a conservation area in a government owned park). This narrow sense of the word resolves what would otherwise seem to be a contradiction in the law. But, the government has the authority to make something that once was a public place into a non-public place going forward. For example, historically, the Civic Center park in front of the capitol in Denver, Colorado has been a public place. But, the government can and did close it off to the public for many months for maintenance and out of public health concerns when heavy use of it by homeless people and drug dealers caused the premises to be seriously damaged and created a public health risk from it being used to dispose of dirty, used, injection-drug syringes, and for people to defecate. A Hypothetical Suppose that Chris is the sole librarian in one of the towns of College Corner, which is on the Ohio-Indiana border, which are in different time zones. In that capacity, Chris has the authority to set library policies including the hours of the library and the rules for its use without the approval of anyone else. Chris has a hot date at 5:30 p.m. But, at lunch time, Chris learned that the hot date was at 5:30 p.m. in Ohio and not an hour later at 5:30 p.m. in Indiana, but the library's official closing time is 5 p.m. in Indiana, because Ohio was observing daylight savings time, but Indian was not, at the time when this happened. Chris, as the sole government official in charge of the library, decides to close the library before its posted closing time at 4:00 p.m. Indiana time (5 p.m. Ohio time) in order to be able to make it to the hot date. Chris quietly asks everyone left in the library to leave at 4 p.m. Indiana time, and everyone but you does. But you, who are homeless, really want to stay the extra hour before getting out in the cold and finding a bridge to sleep under, so you refuse to leave saying that the library is still open until 5 p.m. Indiana time, as stated in its posted hours. Chris orders you to leave and warns you that he is calling the police to remove you if you don't do so voluntarily. The police arrive and restate the complaint of Chris. The police arrest you for trespassing and you are charged with this crime in the appropriate court by the appropriate prosecuting attorney. You had done nothing wrong whatsoever prior to being asked to leave and refusing to do so. But, Chris has not violated your constitutional rights by ordering you removed for some unconstitutional reason. Chris then goes on the hot date; it is love at first sight, and Chris gets married the next week. As an apology for putting you out for the sole convenience of Chris, Chris invites you to the wedding. Do you have a valid defense to the criminal trespassing charge on the grounds that the librarian's actions were unconstitutional? No. You might have a "good faith claim of right" defense, however, to the criminal charges. Do you have a valid claim for money damages for a violation of your constitutional rights? No. Indeed, ordering you removed for "no reason" that has anything to do with your conduct, as in this case, is probably more likely to be legal and constitutional, than having you removed for "some reason" other than just "because I the librarian say so" that doesn't involve wrongdoing on your part. A Variation In The Hypothetical If instead, your were being ordered to leave the library because you were wearing an National Rifle Association cap (and the library didn't prohibit wearing caps), this affirmative reason, which is contrary to the First Amendment freedom of expression, would be a violation of your constitutional rights, which would definitely be a basis for a civil lawsuit against the librarian and police involved in you being arrested. I don't know the details of constitutional defenses in criminal law well enough to know if the violation of your constitutional rights would be a valid defense to the criminal trespassing charge (or a failure to obey a police officer's order to leave charge) resulting from you failing to leave in that circumstance, and I can see legitimate arguments both ways. This is also a situation where the non-constitutional claim of right defense to a trespassing charge would be a strong one. | (Converting comment into an answer) You could sue for criminal damage, if any actual damage is caused during the removal of those notices - however, that will cost you an initial outlay in solicitors fees and court costs and isn't guaranteed to have a successful outcome. You could also just take this as a learnable event and not park in other peoples spots? The owner of the parking spot may have the legal right to have your car removed at your expense, and/or issue you with a penalty charge if suitable notices have been posted, so you might consider yourself to have got off lightly here perhaps? | Yes they can You are approaching this from the wrong direction. Their right to enforce what you can and can't do doesn't come from radio-spectrum law; it comes from property and contract law. You are on their property subject to a license that they give you to be there. One of the terms of that license is that you won't set up or operate a wireless network. No doubt there are other things you are not permitted to do; for example, you may not be able to sell goods and services. If you breach the terms of the license then you are trespassing and they are within their rights to have you removed. In addition, if you are a student (or staff), this is probably one of the terms of your contract with the university. If you breach it, they can terminate your candidature (employment). Contracts can impose obligations on you that goes beyond what the law obliges you to do. Indeed, there is no contract if it only requires what is already required. | There are numerous practical solutions, such as calling their supervisor, or calling the employee of yours who set up this arrangement, or providing some kind of proof that you are the ultimate boss. From a legal perspective, (1) the guards are acting as your agents which gives them some authority to exclude people but (2) you can revoke that authority. There are many things that security guards can do to keep people out, and some of them would be technically illegal (others would be blatantly illegal and we can skip that). I'll cite Washington state criminal law, and you can probably find analogs in Mexican law. First, are they on your property? If you revoke permission to be in the property, that is trespass: (9A.52.070: Criminal trespass in the first degree.) (1) A person is guilty of criminal trespass in the first degree if he or she knowingly enters or remains unlawfully in a building. (9A.52.080 Criminal trespass in the second degree.) (1) A person is guilty of criminal trespass in the second degree if he or she knowingly enters or remains unlawfully in or upon premises of another under circumstances not constituting criminal trespass in the first degree. How are they stopping you? If they are physically stopping you, that is assault (battery), the severity of which depends in the degree of force: (9A.36.031: Assault in the third degree) (1) A person is guilty of assault in the third degree if he or she, under circumstances not amounting to assault in the first or second degree: (d) With criminal negligence, causes bodily harm to another person by means of a weapon or other instrument or thing likely to produce bodily harm; or (f) With criminal negligence, causes bodily harm accompanied by substantial pain that extends for a period sufficient to cause considerable suffering; or (9A.36.041: Assault in the fourth degree) (1) A person is guilty of assault in the fourth degree if, under circumstances not amounting to assault in the first, second, or third degree, or custodial assault, he or she assaults another. Another possibility is 9A.40.040 Unlawful imprisonment: (1) A person is guilty of unlawful imprisonment if he or she knowingly restrains another person. They don't have to actually use force, they can simply threaten to do so, which is 9A.36.070: Coercion. (1) A person is guilty of coercion if by use of a threat he or she compels or induces a person to engage in conduct which the latter has a legal right to abstain from, or to abstain from conduct which he or she has a legal right to engage in. Though the police are supposed to enforce the law, they may decline to act if it us not clear to them that there is a violation of the law. It would not really help to prove that you own the company, because nobody really knows the relationship between the company and the building – maybe you own the company, someone else owns the building, and you've been legally evicted. So looking for a legal solution isn't the most productive use of your time. Instead, make sure you can contact the guard supervisors, company colleagues in charge of security, and carry your ID badge with you. Let us suppose that the guard company, guards, and your security chief are conspiring to rob you. The long-term and slow solution is to get a court order plus sue the pants of everybody who has done you wrong. The crux of the matter for the police would be, who owns the building (what evidence do you have that you own the building). I could actually show the police proof that I own my house. If the crooked security chief shows up with a document saying that he owns the building, you'd be stuck. But otherwise, establishing ownership of the building should cause them to stop the guards from blocking you. Unless the cops are part of the conspiracy. There's nothing you can do to absolutely protect yourself against a well-planned conspiracy (they make movies based on that). | The Constitution said people have the Rights to Properties. No it doesn't. There is no such provision. The closest I am aware of is the so-called "takings clause" in the Fifth Amendment, which reads: Nor shall private property be taken for public use without just compensation. There has been a good deal of litigation over just when when a "taking" occurs under this provision. The classic and most obvious case is the use of eminent domain to aquire actual title to the property by a government (Federal, State, or local). This is always a takign, and compensation nis required. The more questionable cases have occurred when some law or regulation leaves the owner with title, but significantly restricts the uses to which the property may be put, particularly when the existing use becomes unlawful. Courts have ruled in different ways in such cases, but I think the current standard is that when a regulation removes all, or almost all, economic value from the property there has been a "regulatory taking" and compensation must be paid. But as far as I know, a tax on the property has never been considered to be a taking inn this sense. | There is a state law that requires you to obey the police: ORC 2917.13, which says you may not Fail to obey the lawful order of any law enforcement officer engaged in the law enforcement officer's duties at the scene of or in connection with a fire, accident, disaster, riot, or emergency of any kind. If you do, misconduct at an emergency is a misdemeanor of the fourth degree. If a violation of this section creates a risk of physical harm to persons or property, misconduct at an emergency is a misdemeanor of the first degree. You also cannot Hamper the lawful operations of any law enforcement officer, firefighter, rescuer, medical person, emergency medical services person, or other authorized person, engaged in the person's duties at the scene of a fire, accident, disaster, riot, or emergency of any kind "Hamper" is not defined statutorily, but the plain meaning of "hamper" is not the same as "fail to assist". We have not established that the order is lawful, however, which is crucial. The police cannot just freely search a residence without permission. If they have permission from the occupant, they can search and seize. If they have probable cause to believe that a crime exists and the circumstances make a warrant impractical, they can search and seize. I don't know what you mean by "wellness check", but that seems plainly to be unlawful entry. However, if the resident calls 911 and reports that he is having an issue, that is sufficient consent for entry. In the case of a fire alarm, the fire code authorizes a fire department official in charge of an actual emergency response incident to order the evacuation of a building, and occupants are required to comply. If we suppose that the smoke detector in a room has gone off, the fire department is authorized to inspect for fire, and there is a provision under the law about failure to obey a lawful command (to open the door so that they can look for fire). Problem: you cannot know whether the order is lawful. The officer doesn't decide what is lawful, the courts do (after the fact), and typically a command is found to be lawful unless it is clearly unlawful. The order from your supervisor is not "enforceable" in the sense that you cannot be arrested, imprisoned, or fined for disobeying your boss. However, there is a potential club they can use against you, namely firing you for disobeying the order. Normally, you can be fired for wearing the wrong shirt. But there are laws about employers doing illegal things, such as ORC 4113.52, which provides recourse when the employee reasonably believes that the violation is a criminal offense that is likely to cause an imminent risk of physical harm to persons or a hazard to public health or safety etc. In which case you report this to the supervisor, they have 24 hours after getting the report to correct the situation, and after that you would report the situation to the county prosecutor. (Read all of the details in the linked law, don't just skip steps: this is an executive summary). Having done this, you are protected from being fired, demoted. reassigned etc. The employer will be strongly motivated to not incur the penalties for violating the whistle blower statute. Additionally, you can sue the employer if they fire you for refusing to violate the law (termination in violation of public policy). | This depends on the nature of the "ban" ---i.e., who issued it, what legal power they have, and what it actually requires you to refrain from doing. You say it is "their ban" so I am going to assume that this is just a decision that the store has made not to allow you entry. If it is indeed the store itself that has "banned" you, this would not prevent you from calling them to apologise for whatever you did. Calling a business on the phone cannot generally be considered a trespass --- at most, if you were to repeatedly call and harass a business over and over again, it might give rise to a nuisance suit. Unless you have extremely strange laws in your jurisdiction, it is almost certainly not against the law for you to call a business that has banned you, a fortiori if this phone call is made for the purposes of apologising for whatever you did that led to the ban. Although it does not appear to be the situation in this case, if this ban was an actual restraining order of some kind issued by a Court, then it might indeed prevent you from contacting the business (in which case breaching it would lead to an action for contempt of court, not trespass). If a Court were to issue you with an injunction or restraining order of some kind to ban you from a business, then that instrument would specify what you are prevented from doing. You would then need to be very careful to comply with that order. In short: there is a great deal of difference between a "ban" made by a store as the owner of property, and a ban issued by a court through an injunction or restraining order. | "Posted" is a Term of Art "Posted" is a term of art in trespass law, specifically meaning that signs forbidding entry have been placed at the borders of a parcel. The page "Properly posted definition" from Law Insider reads: Properly posted means that signs prohibiting trespass—or bright yellow, bright orange or fluorescent paint—are clearly displayed at all corners, on fishing streams crossing property lines, and on roads, gates and rights-of-way entering the land. Or, they are displayed in a manner that is visible to a person in the area. The entry "Posting" in the "Legal" section of The Free Dictionary reads: Posting In connection with Trespass statutes, the act of placing or affixing signs on private property in a manner to give notice of the trespass. The page "The Importance of Posting Property Signs" reads in relevant part: Why should you use posted signs on property? Posting property is a great way to let someone know they have entered private land and they might not be welcome. Using posted signs not only indicates trespassing but also can specify restricted activities. Signs are good for both rural and urban settings as a way to protect owners and their property. ... Most states have specific rules for property signs that must be followed. Some rules may include: Words used: POSTED or NOTICE Sign size: 11" x 11" or 144 square inches Lettering size: minimum of 2" Sign color: purple, bright orange, yellow Sign distance: every 100 feet Some states allow the use of spray paint to mark trees and fences in lieu of a sign. Purple paint is frequently used because it stands out against common natural colors. However, if a trespasser is unaware of this marking method, it would be more effective to use a sign. Check local and state laws to confirm what is needed to properly post legally in your area. Several US states use the term "Posted" in their laws on trespass, and provide that the presence of the word "posted" on a sign has special significance. Maryland maryland Maryland Criminal Law Code § 6-402 (2017) provides that: (a) Prohibited. -- A person may not enter or trespass on property that is posted conspicuously against trespass by: (a) (1) signs placed where they reasonably may be seen; or (a) (2) paint marks that: (a) (2) (i) conform with regulations that the Department of Natural Resources adopts under § 5-209 of the Natural Resources Article; and (a) (2) (ii) are made on trees or posts that are located: (a) (2) (ii) 1. at each road entrance to the property; and (a) (2) (ii) 2. adjacent to public roadways, public waterways, and other land adjoining the property. The law firm page "Trespassing Laws in Maryland" reads in relevant part: Posted Property Trespass A person is not allowed to enter onto property that is posted conspicuously against trespassing. That posting can come in the form of signs that are placed where they can be reasonably seen or by paint marks on trees or posts at the entrances and land adjacent to the property. New York new-york-state The page "Posting Your Land" from the NY Dept of Environmental Conservation reads in relevant part: Trespassing Trespassing is illegal even on unposted property. Instead of posting, a landowner or other authorized person may issue written notice to another individual informing them that they are prohibited from entering the property. The notice must contain a description of the property, what restrictions apply (hunting, fishing, trapping) and the person or persons prohibited from entry. It should be delivered by certified mail or other processes (ex: legal notice in newspaper) to prove that the person was served. At any time, anyone by the landowner, occupant, or other authorized person to leave the premises (posted or not), must do so immediately. Trespassing on areas posted against trespass pursuant to the Environmental Conservation Law is punishable by a fine up to $250 and/or up to 15 days in jail. It is a defense to this type of trespass that there are not signs posted instructing people to stay off the property. It may also be a defense that any signs posted in the area are not in the proper place to be easily seen by visitors to the property. Signage Details Hardware and farm supply stores frequently carry signs for posting. Customized signs may also be obtained from local printers. DEC doesn't provide signs to private landowners unless the landowner is a cooperator under the Fish and Wildlife Management Act. In this case, they will be provided with "Safety Zone" signs. Cooperators provide free public access to most of their property in a large cooperative hunting/fishing area. Signs must be a minimum of 11 inches by 11 inches. They also must bear the name and address of the owner, lawful occupant or other person or organization authorized to post the area. The sign must bear a conspicuous statement which shall either consist of the word "POSTED" or warn against entry for specified purposes or all purposes without the consent of the person whose name appears on the sign. These words must cover a minimum space of 80 square inches (about 9 by 9 inches) of the sign. Image from the NYS DEC page linked above (There is a very similar image included in the Wikipedia article "Trespass".) California california In California "Posted property" is the legal term for property where suitable signs have been placed along the boundary or near it, to informa people tht trespassing is forbidden. But it appears that in CA the word "Posted" need not appear on such signs, the words "No Trespassing" being sufficient. California also makes it a misdemeanor (Under section 602) to enter into or remain on property of another, without any legal right to be there, if one is instructed not to enter, or to leave, but such proeprty is not considered "posted". California Penal Code section 553 provides that: he following definitions apply to this article only: (a) “Sign” means a sign not less than one (1) square foot in area and upon which in letters not less than two inches in height appear the words “trespassing-loitering forbidden by law,” or words describing the use of the property followed by the words “no trespassing.” (b) “Posted property” means any property specified in Section 554 which is posted in a manner provided in Section 554.1 . (c) “Posted boundary” means a line running from sign to sign and such line need not conform to the legal boundary or legal description of any lot, parcel, or acreage of land, but only the area within the posted boundary shall constitute posted property, except as otherwise provided in subdivision (e) of Section 554.1 . California Penal Code section 554 provides in relevant part that: Any property, except that portion of such property to which the general public is accorded access, may be posted against trespassing and loitering in the manner provided in Section 554.1 , and thereby become posted property subject to the provisions of this article applicable to posted property, if such property consists of, or is used, or is designed to be used, for any one or more of the following: ... California Penal Code section 554.1 provides that: Any property described in Section 554 may be posted against trespassing and loitering in the following manner: (a) If it is not enclosed within a fence and if it is of an area not exceeding one (1) acre and has no lineal dimension exceeding one (1) mile, by posting signs at each corner of the area and at each entrance. (b) If it is not enclosed within a fence, and if it is of an area exceeding one (1) acre, or contains any lineal dimension exceeding one (1) mile, by posting signs along or near the exterior boundaries of the area at intervals of not more than 600 feet, and also at each corner, and, if such property has a definite entrance or entrances, at each such entrance. (c) If it is enclosed within a fence and if it is of an area not exceeding one (1) acre, and has no lineal dimension exceeding one (1) mile, by posting signs at each corner of such fence and at each entrance. (d) If it is enclosed within a fence and if it is of an area exceeding one (1) acre, or has any lineal dimension exceeding one (1) mile, by posting signs on, or along the line of, such fence at intervals of not more than 600 feet, and also at each corner and at each entrance. (e) If it consists of poles or towers or appurtenant structures for the suspension of wires or other conductors for conveying electricity or telegraphic or telephonic messages or of towers or derricks for the production of oil or gas, by affixing a sign upon one or more sides of such poles, towers, or derricks, but such posting shall render only the pole, tower, derrick, or appurtenant structure posted property. California Penal Code section 555 provides that: It is unlawful to enter or remain upon any posted property without the written permission of the owner, tenant, or occupant in legal possession or control thereof. Every person who enters or remains upon posted property without such written permission is guilty of a separate offense for each day during any portion of which he enters or remains upon such posted property. |
What would be different if Kyle Rittenhouse were 9 instead of 17? In the Kyle Rittenhouse case, I felt like he would be charged with possessing a weapon while under-age. But this charge was dropped. I looked into this and ran into this article: https://abcnews.go.com/US/wireStory/explainer-judge-drop-rittenhouse-gun-charge-81285031. It seems that if the gun is "long barreled" (which an AR-15 apparently is), there is no lower limit on the age at which someone can possess it and open carry it. This opens the door to some strange but very possible scenarios. What if Kyle were 9 instead of 17? He would still be legally allowed to open-carry that rifle? And he apparently got it from a friend, not a parent or guardian. And that friend wasn't held accountable either. Does this mean I could just buy a rifle and then give it to a random 9 year old? And if said 9 year old then went and hurt someone with it, there would be no consequences for me? I'm sure I'm missing something can someone please confirm? EDIT: Quoting from here: https://www.nbcchicago.com/news/local/kyle-rittenhouse-reveals-how-gun-was-paid-for-in-first-interview-since-arrest/2366751/ "Wisconsin law prohibits minors from carrying or possessing firearms unless they're hunting." Kyle was not hunting. So why was he not prohibited from possessing the firearm? | Pre-1991, Wisconsin criminal law ONLY prevented handguns (as well as various other things such as nunchuks and tasers) from being possessed by minors (being people under age 18), in section 948.60. https://docs.legis.wisconsin.gov/1987/related/acts/332 The Hunting code is a civil code, and it places restrictions on the use of firearms by people aged under 16, at 29.304 https://docs.legis.wisconsin.gov/statutes/statutes/29.pdf This meant that prior to 1991, the possession of an AR-15 by a 15-year-old would not face any criminal penalties, only the civil penalty provided under 29.971 ($1000 fine). In 1991 the Wisconsin Senate passed a law which updated 948.60 https://docs.legis.wisconsin.gov/1991/related/acts/18 Because 948.60 is a criminal law cross-referencing a civil one, the wording ends up confusing, but the effect of the revised 948.60 was that: a minor who went hunting with any firearm without a hunting accomplishment certificate (29.593 of the civil hunting code) a child under 16 who possessed a firearm of any kind except in accordance with 29.304 would for the first time be guilty of a crime, after the 1991 law passed. In addition, because 948.60 does double purpose as the supply of a weapon to a minor section, an adult supplying a child with an illegal short-barreled weapon (as defined in 941.28) is also guilty of 948.60, along with the minor themself. Therefore, 948.60 gives criminal effect to breaches of 29.304. Hence, children aged under 16 ONLY (29.304 does not apply to 16 or 17 year olds), and the person supplying them must comply with 29.304, or commit a misdemeanor under 948.60 as the minor (subject to age of criminal responsibility of 10), or a felony as the supplying person. Thus: Age 0-11 - can only carry a firearm during a hunter education class under supervision by an instructor, or carrying it, unloaded, to or from said class, by their parent, or an adult designated by their parent Age 12-13 - ditto, but can also carry a firearm while accompanied by their parent or adult designated by their parent Age 14-15 - ditto, but can now possess a firearm if they have a hunter education program certificate, including from other states or countries, if evidence is provided to the department So we can see that: under Wisconsin code 29.592, no person may hunt without an accomplishment certificate, and that for a 16 or 17 year old ONLY, such hunting with a firearm becomes a criminal offence under 948.60 the person supplying a gun to an 0-11 commits a crime, as does the child if they are 10-11 it would appear to be legal for a parent to accompany their 12 or 13 year old to a riot armed with an AR-15, or for the parent to designate a person to do this a 14 or 15 year old who has a hunter competency certificate can attend a riot armed with an AR-15 unaccompanied a 16 or 17 year old can attend a riot with an AR-15. However, unlike 18+ year olds they cannot attend with a handgun, since 948.60 is only intended to ban minors from handguns, while giving teeth to other restrictions on the use of rifles and shotguns by minors. | Short answer: It depends. It is lawful if one has a lawful reason, such as it's needed for work, or it's a folding pocketknife (e.g. a Swiss Army Knife) with a blade less than 3 inches. Long answer: The primary legislation is s.139 of the Criminal Justice Act 1988 which makes it unlawful to have in a public place: (2) ... any article which has a blade or is sharply pointed except a folding pocketknife. (3) .... [this includes] a folding pocketknife if the cutting edge of its blade exceeds 3 inches. Subsection (4) gives the "good reason or lawful authority" general defence for possessing such an article which is complemented and supplemented by: (5) Without prejudice to the generality of subsection (4) above, it shall be a defence for a person charged with an offence under this section to prove that he had the article with him— (a)for use at work; (b)for religious reasons; or (c)as part of any national costume. This site gives some more information and identifies certain knives that are banned, and this site, under "legislation", lists semi-related offences. . | After some more research, I found several german retailers like Frankonia and Brownells, which do ship firearm magazines to Austria. My reasoning is as follows: If they were regulated in any way, they would either be confiscated or sent back to the store. In either way, the customers would get in contact with the store, and the store would stop shipping magazines to Austria. Since I was unable to find a german store which specifically mentioned that they would not ship to Austria, I am going to assume that they are not regulated and can be purchased freely. | Laws vary by state, of course. In Wisconsin, according to the 1993 case State v. Neumann: the offense of second-degree sexual assault by sexual intercourse does not require proof of intent and therefore someone who claimed to be too drunk to know what he was doing was still guilty. Although that was a case involving adults and therefore a different statute, I think the statutes are similar enough to produce a similar result in a case involving a minor. But even though intent isn't required, according to the 2007 case State v. Lackershire she's still be not guilty in Wisconsin. It flat out says that: If the defendant was raped, the act of having sexual intercourse with a child does not constitute a crime. Additionally, in your case, there was a gun to her head. Under Wisconsin law, the woman could not be guilty of statutory rape, because of this law: 939.46 Coercion. (1) A threat by a person other than the actor's coconspirator which causes the actor reasonably to believe that his or her act is the only means of preventing imminent death or great bodily harm to the actor or another and which causes him or her so to act is a defense to a prosecution for any crime based on that act, except that if the prosecution is for first-degree intentional homicide, the degree of the crime is reduced to 2nd-degree intentional homicide. The paper you link to mentions several possible defenses like coercion, and how each defense is not applicable in some states. I don't think it ever clearly establishes that there is a state where there is no defense. The example you (and the paper) give occurred in Florida. I couldn't find an applicable statute in Florida law, but that appears to be because it's in common law instead of a statute. According to the 1981 Florida case Wright v. State: Florida has recognized the common law defense of duress as a defense to crimes other than homicide so I don't think the woman would have been guilty under Florida law, either. The paper states that she was in fear for her life and that of her daughters, and it is extremely apparent in hindsight that her fear was reasonable. I imagine that if the author was able to find an actual case where a victim was prosecuted under similar circumstances (or even one where the victim clearly could have been prosecuted under the law of that state) he would have used that case as his example instead. It seems that he couldn't... and that might tell you something. He probably used this example because it was sensational, but it doesn't seem that the woman was guilty under applicable law. | Bob can probably print the firearm for personal ownership if Bob is not prohibited from possessing a firearm himself, but after that it gets problematic. This is ignoring any potential safety violations and liability issues or patent violations which might arise. According to an ATF spokesman quoted in this article : it is legal for Americans to build their own firearms without a license so long as they are not prohibited by law from possessing firearms, the firearms are legal to own, for personal use, and not for sale or transfer to others. Whether the gun parts are printed, created by other ways of manufacturing, or legally purchased from a licensed dealer has no impact on whether it is legal for an American to build a gun for personal use, though some states like California have placed additional requirements on the process. So transfer of ownership is possibly problematic. It's notably not a way to avoid normal firearm possession restrictions : Knight [the ATF spokesman] emphasized it is not legal for felons or somebody otherwise prohibited from possessing firearms to build their own guns under any circumstance. "Title 18 of the United States Code, section 922(g) prohibits several categories of persons (i.e., persons convicted of a crime punishable by imprisonment for more than a year) from possessing firearms in or affecting interstate commerce," Knight said. "Title 18 of the Unites States Code, section 922(d) prohibits persons from disposing of any firearm to a person the transferor has reason to believe is prohibited from possessing firearms under federal law." Finally there's a rather crucial point to note about the design of such firearms : He said the Undetectable Firearms Act of 1988 outlaws the manufacture or possession of firearms that can pass through a walk-through metal detector or X-ray machine commonly employed at airports without being detected. "A person or manufacturer cannot produce an undetectable firearm as prescribed in Title 18 of the United States Code, section 922(p)," he said. So making a weapon that's undetectable by a metal detector is not allowed (at least according to the ATF). | There are several federal excise taxes on firearms. The main ones are (dispensing with the fine definitional details and Internal Revenue Code citations): A tax on transfers of firearms of $5 per concealable firearm and $200 per firearm on certain other firearms; a $500 per year firearm's dealers tax which is increased to $1000 if you import more than a certain number of firearms per year; a 10% of sales price excise tax on pistols and revolvers; and an 11% of sales price excise tax on other firearms and on ammunition. Of course, like any other business, firearm's dealers also have to file annual income tax returns on their revenues less their expenses on tax forms that depend upon the form of organization of the business (e.g. C-corporation, S-corporation, partnership/LLC, trust, etc.). The IRS has the right to examine the books and records of people who owe or are believed to owe taxes without going to a court to obtain permission to do so. Treas. Reg. § 1.601.105. Subject to certain exceptions, information obtained by the IRS in a review of a taxpayers records and their return information are confidential. 26 U.S.C. § 6103. There are criminal penalties for (slightly over simplifying) tax offenses including willfully failing to keep records necessary to file tax returns, willfully attempting to evade or defeat taxes, willfully failing to collect and pay taxes where required by law to do so, and willfully making false statements to IRS employees or on returns. 26 U.S.C. § 7201-7212. If the government provides probable cause to a federal judge or magistrate in connection with a possible criminal tax prosecution that there is probable cause to believe that a taxpayer has committed a criminal tax offense, then the government may obtain a search warrant to seize records without the advanced notice available in the usual civil record examination process. For example (not based on any facts I have been told about or read about in this particular case), suppose that a former employee of a firearm's dealer or an ex-spouse of one of the owners of the business, told the IRS that the dealer intentionally lied on their excise tax return by underreporting the number of firearms the dealer sold and that the dealer then kept the sales taxes collected from unreported buyers who completed Form 4473, and told the IRS criminal division investigators where the Form 4473s were kept at the dealer's offices. In that case, it would be routine for the IRS to obtain a federal search warrant to obtain those forms to seize and review in connection with an excise tax fraud investigation. If there was just an income tax audit, bank records and accounting records obtained by subpoena from banks and accountants would usually be sufficient. But this would cease to be the case if the inventory records obtained by subpoena from the dealer's suppliers, for example, and the accounting records, didn't match. If there was evidence of unreported firearm sales income, or of unreported excise taxable sales, the IRS would usually need to compare the the Form 4473s of the business to its income and excise tax returns filed with the IRS. It would be routine to obtain these records with a search warrant rather than a civil office record review with advanced notice if tax fraud was suspected. The Form 4473s due to IRS confidentiality requirements, wouldn't be publicly available to anyone by the IRS and criminal investigators (not even members of Congress or local law enforcement), and would probably only be presented in redacted or summary forms in a criminal tax fraud prosecution at trial. In all likelihood, the IRS doesn't care about the customers who filled out the Form 4473s at all, and isn't even bothering to investigate them (except possibly to spot check for fake social security numbers or names, which appear on the forms, to see if fake information was used to Form 4473s used to substantiate tax records). Instead, the IRS is probably simply tallying them up and noting dates of sale, putting them in a spreadsheet, and seeing if they are different from what was reported to the IRS on the dealer's tax returns. If the dealer, for example, paid the proper excise taxes on 800 guns in 2022, but had 1200 Form 4473s in banker's boxes at its offices, then the people involved in the tax fraud at the dealership are probably going to go to federal prison for a few years. Indeed, they would probably just plead guilty rather than going through a futile trial where documents with their own signatures on them from boxes seized in their shop clearly establish their guilt in that case. Federal firearm excise tax fraud prosecutions aren't terribly common, but they are about as plain vanilla as they come in the world of federal criminal prosecutions. This certainly doesn't portend any threat the Second Amendment rights or any crack down on the firearms industry. In terms of this message this sends, this is really no different that seizing the electronic records of a gas station that filed false gasoline excise tax returns to show how much gasoline was actually sold, and prosecuting the people who engaged in the tax fraud for that. The argument that a Form 4473 isn't a "financial record", when it provides documentation of all of the information except the price on all of the dealer's firearm sales (Manufacturer, Model, Serial Number, Type of Firearm, Caliber or Gauge, number of firearms sold, and check boxes for tax exemptions), and the fact the some of the federal firearm excise taxes due don't even depend upon the price of the firearm, isn't a very strong one. Even if the search warrant didn't single out Forms 4473s from other kinds of business records, this would probably just be harmless error, because the IRS absolutely has the right to ask for and seize Form 4473s in connection with the tax fraud investigation, just like any other business record of a firm suspected of not paying its taxes. These records aren't protected by any evidentiary privilege in a federal tax fraud prosecution. Also, combined with past sales fliers and catalogues and business records about sales pricing for different products from the dealer in its accounting records, it would be fairly trivial to use this information to recreate a very accurate forensic reconstruction of the gross firearm sales revenues of the dealer and the amount of excise taxes that should have been paid. It would be tedious work, but it would be extremely damning evidence of tax fraud if the estimated sales significantly exceeds the sales reported on the dealer's tax returns. Even if the some of the documents in a particular banker's box aren't within the scope of the search warrant (for example, perhaps someone put Christmas Cards and as well as accounting ledgers and cancelled checks in the same box), the IRS would not be beyond its rights to grab all of the banker's boxes of documents, review them at their leisure in a government office, and then return the contents of the boxes that turned out to be something other than what the IRS requested a search warrant to seize. A good faith belief that the boxes seized has some financial records in them would justify taking them away, reviewing their contents, and returning materials that were beyond the scope of what was sought. The IRS criminal division agents don't have to look through the many, many banker's boxes page by page at the dealer's place of business to screen them at that time at that level of detail. Similarly, the IRS agents are not required to assume that boxes actually contain what the label on the outside of the box says that the box contains. Of course, if the Form 4473s corroborate the tax returns filed by the dealer apart from minor clerical errors or uncertainties about the exact sales prices of sales reported on them due to irregular discounts provided by a dealer who sometimes haggled over the prices of used firearms, the dealer would be vindicated and the informant who triggered the investigation and prosecution (if there is evidence that this informant willfully lied to IRS investigators) might even be prosecuted for making an intentionally false report to a law enforcement officer. The dealer wouldn't be entitled to reimbursement for criminal defense expenses or harm to the dealer's reputation, but it would still be a huge PR coup and the criminal charges would go away, probably long before a trial was even held. Montana Attorney General Austin Knudsen absolutely knows all of the facts in the post above. His claimed fear of a crackdown on gun users is something he is doing to willfully mislead the people of Montana for political gain. He may also be throwing stones at federal prosecutions because he was irritated that the IRS and Justice Department didn't keep him in the loop on this tax investigation in his state which he sees as his turf, even though it was purely a matter of federal tax law violations which his office didn't have jurisdiction over. Indeed, the IRS may have kept him in the dark and out of the loop from this investigation, in part, in order to protect taxpayer and gun owner privacy by not sharing confidential IRS investigation information with state law enforcement officers, something that it is not allowed to do. | It obviously varies by jurisdiction, but most jurisdictions I am familiar with have something like a "Statute of Limitations" where crimes cannot be prosecuted after a certain length of time because it was "too long ago". The logic is firstly that if you prosecute a pensioner for stealing a bottle of beer from a shop when they were 18, the person you are prosecuting is very different from the person that committed the crime. Secondly, it is very hard to obtain a fair trial after the passing of a long period of time. As far as I know, all jurisdictions vary the length of time depending on the severity of the crime, and the most serious crimes are never time-limited. Rape usually falls into the category of "never time-limited". Of course, although murder and rape can be prosecuted after 15+ years, the difficulty of obtaining a fair trial, and of producing evidence from that long ago, means that they may not be. Finally note that "prosecution" of the accused is often not the primary aim of accusers. They just want to say "this was wrong". Abused individuals often find it very hard to speak out about the abuse; the current scandals have made it that bit easier, by reassuring them that it isn't just them (see the #metoo campaign for example). | Tow truck drivers in general might be allowed to carry firearms if they have a concealed weapons license, but the shooter in the case at hand wasn't merely a tow truck driver. He was actually repossessing a car, and therefore under Florida Statutes 493.6101(21) he was acting as a recovery agent. Under 493.6401 he was therefore required to hold a Class "R" recovery agent license. And under 493.6118(1)(x)(9), Class "R" license holders are prohibited from: Carrying any weapon or firearm when he or she is on private property and performing duties under his or her license whether or not he or she is licensed pursuant to s. 790.06. The story says that the car was in a driveway, so it sounds like he was on private property. This would be grounds for discipline under 493.6118(2), up to and including revocation of his license. It could be that criminal penalties also apply, but I have not found them so far. |
Is willingly and knowingly touching a person in public without a good reason harassment? Hypothetical Situation Person A: A person with autism. Person B: A person shooting videos for social media making fun of unsuspecting people like person A. Person A is enjoying a meal in a restaurant. They're sitting at a table, not in the way of people that need to pass through. Person B sneaks behind person A and tabs person A on the shoulder while trying to keep their presence hidden. Person A gets a sensory input overload due to their autism. The authorities are involved to deal with the situation. Person A wants the authorities to write a report as person A intends to sue person B for harassment. Question Does person A have a case in this specific situation? Reason for asking This is an ongoing discussion between a few people, yet none of us have the required legal knowledge to get to a conclusion. Searching up the definition of Harassment didn't help much either: "Harassment is unwelcome conduct that is based on race, color, religion, sex (including sexual orientation, gender identity, or pregnancy), national origin, older age (beginning at age 40), disability, or genetic information (including family medical history)." Autism is a disability and touching would be unwelcome conduct. However, person A doesn't know person B suffers for this disability, yet also has no reasonable reason to touch person B as it's just for their own entertainment. | new-south-wales No it's not harassment State and territory laws criminalise stalking. These offences often target behaviour amounting to harassment There are also state and territory offences that capture harassment at work, in family or domestic contexts, and in schools and other educational institutions. "Harassment" requires a pattern of behaviour which is missing from your example. It's probably the tort of battery A battery is a voluntary and positive act, done with the intention of causing contact with another, that directly causes that contact: Barker et al at p 36. See Carter v Walker (2010) 32 VR 1 at [215] for a summary of the definition of “battery”. The requisite intention for battery is simply this: the defendant must have intended the consequence of the contact with the plaintiff. The defendant need not know the contact is unlawful. He or she need not intend to cause harm or damage as a result of the contact. The modern position, however, is that hostile intent or angry state of mind are not necessary to establish battery: Rixon v Star City Pty Ltd, above, at [52]. It is for that reason that a medical procedure carried out without the patient’s consent may be a battery. On the other hand, it is not every contact that will be taken to be a battery. People come into physical contact on a daily basis. For example it is impossible to avoid contact with other persons in a crowded train or at a popular sporting or concert event. The inevitable “jostling” that occurs in these incidents in every day life is simply not actionable as a battery: Rixon at [53]–[54]; Colins v Wilcock [1984] 3 All ER 374 per Robert Goff LJ. | In the US, there are no (and can be no) laws against hate speech. You also cannot sue a person for using an ethnic or similar epithet. A false accusation, however, might be grounds for a defamation lawsuit. Word connotations do not matter, what matters is the denotation, for example calling someone a "rapist" denotes a specific criminal act. Even calling someone a rapist isn't necessarily defamatory, since hyperbole abounds especially on the internet, so in order to actually be defamation, the statement would have to be understood as a particular accusation (a form of unlawful sexual assault). A defamatory statement has to be made with reckless disregard for the truth of a statement, which is not the case in the situation you describe (perhaps the person correctly said that so-and-so is a therapist, but was ineffective in their use of English). | Rudeness is not a crime Thankfully, or I’d be writing this from jail. The threat or actually of intentional and unwanted physical contact is a crime. Historically these were seperate common law crimes (and torts) of assault and battery respectively. However, in most jurisdictions these have been codified and merged and redefined so there is common assault (which merges historic assault and battery and is what you are asking about), indecent assault, sexual assault etc. In general, there must be an intentionality to the contact - accidentally colliding with someone is not assault (although it can be the tort of negligence). Similarly the contact must be unwanted - participating in a game of rugby means you want to be tackled (in a legal sense, in a sports sense you don’t want to be tackled, you want to score). And finally it must intend harm - holding your hands up to prevent a collision does not intend harm even if harm may result, punching someone does. In the cases you describe, the aggressor is the “elderly person” and they have committed a crime. I am interested in the suggestion that public opinion in first-world countries like Canada is that being old and annoyed justifies you beating someone. That is not my understanding of public opinion in Australia- old people have to follow the rule of law here just like everybody else. | There have been cases in the UK where paying someone's legal bills was interpreted as joining their case. So when A with no money libels someone, and B with deep pockets pays A's lawyer, then B risks being held liable for damages if A gets convicted. So B should be very careful. Just giving you money is probably the safest. But attorney-client privilege is between attorney and client. I have been laid off twice with my company asking me to take an employment lawyer and paying for it. (Interestingly each time the bill was exactly the maximum amount the company was willing to pay :-) It would have been absurd if my company could demand information that is under attorney-client privilege just because they paid the bill. Why did two companies pay the lawyers bill? Because that way they ensure that the separation is without problems. The lawyer explained the settlement contract and what it meant exactly. They also checked that the contract didn’t contain anything unacceptable which the company would have fixed. So if I had tried to sue them later I would have no chance to win (but there was no reason to sue). Another reason not to sue was that the company offered I settlement that was very significantly more than was legally required, but if you sued them you would only get what you got in court - most likely less than you would get without suing. So basically they paid to make sure I would have no reason to sue them later. | This is the overview of employment discrimination by the EEOC (no legal reason for them to specifically put this under "youth"). To "discriminate" against someone means to treat that person differently, or less favorably, for some reason... The laws enforced by EEOC protect you from employment discrimination when it involves: Unfair treatment because of your race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, disability, age (age 40 or older), or genetic information. Harassment by managers, co-workers, or others in your workplace, because of your race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, disability, age (age 40 or older), or genetic information. A subtype of harassment is "hostile environment harassment". See the EEOC page on harassment. It is unwelcome conduct that is based on race... Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Also it is illegal to punish a person for complaining about harassment. On the face of it, this could constitute racial harassment. The EEOC suggests that it is illegal here, in their FAQ Are White employees protected from race discrimination even though they are not a minority? Yes. You are protected from different treatment at work on the basis of your race, whether you are White, Black, or some other race. Although this is an advisory from the Dep't of Interior and not the EEOC, it is reasonable to assume that it was at least minimally vetted by competent lawyers who know discrimination law. What is prohibited is Unwelcome conduct, verbal or physical, including intimidation, ridicule, insult, comments, or physical conduct, that is based on an individual’s protected status or protected activities under Personnel Bulletin 18-01, when the behavior can reasonably be considered to adversely affect the work environment, or an employment decision affecting the employee is based upon the employee’s acceptance or rejection of such conduct (where race is a protected status). I don't know of any case law that establishes for certain that what you describe is illegal. The ministerial exception allows a religion to follow the rules of the religion in hiring its ministers, but otherwise doesn't exempt religions from prohibitions against discrimination. | The relevant (criminal) defence is Sec 11(b)(3) [the Civil defence in Sec 11(a)(iii) is an easier one]: (3) Notwithstanding any other provision of this Act, it shall be a defence to prosecution under this subsection if the defendant committed the offense based on a good faith belief that he was acting to protect himself or herself, a member of his or her family, or any other individual, from bodily harm from any endangered or threatened species. I would say that the defendant could easily demonstrate a "good faith belief that he was acting to ... any other individual, from bodily harm from any endangered or threatened species." Even if there were other ways to rescue the child other than lethal force to the gorilla they all would have necessitated exposing the child to a longer period of danger, exposing another person to danger or may have had less predictable outcomes (e.g. tranquilisers have an onset time) all of which would be unconscionable. | Following you around with the intent of harassing you is stalking. I don't know whether there's going to be a law actually requiring social distancing in Florida. In other states, I've seen laws set up to make it a crime to violate an order of the Director of Public Health or something like that. I don't know whether Florida actually has an order requiring social distancing by the general public. | No. Causing someone "pain and suffering" is not against the law; it is merely one kind of damages that can be awarded when someone has done something that is against the law. You may, for instance, endure pain and suffering from a car accident or shooting, in which case you could collect damages for your pain and suffering after proving that the other party committed the torts of negligence or battery, which are illegal. But if you were enduring pain and suffering from the last episode of Lost, you could not collect damages for your pain and suffering because it is not against the law to write a crappy finale. So in your case, cannot sue for pain and suffering based simply on the existence of a secret audio recording. North Carolina allows secret audio recordings, and it does not make exceptions for audio recordings that hurt someone's feelings. But to go beyond your explicit question, there still remains the possibility that you could pursue a legal action. If the other party used that recording in a way that violated the law, that might give rise to a tort that would support an award of damages for pain and suffering. If they publicly distributed a recording of themselves having sex with someone, that might constitute the tort of public disclosure of private facts. If they edited the recording to make it sound like someone had said something that they had not and then gave it to someone else, that might be grounds for a libel action. |
Are there any sentencing guidelines for the crimes Trump is accused of? Does New York have sentencing guidelines? If so, what do they say about the felony falsification of business records, and the associated conspiracy, that Donald Trump has been charged with? | New York State's sentencing laws do not have sentencing guidelines in the sense that the federal courts do. Donald Trump is an individual with no prior felony convictions who is charged with Class E felonies. The statutory sentencing range for these offenses under New York Penal Law Section 70.02(1)(d) is a determinate sentence of 1.5 to 4 years. Under some circumstances, alternative sentencing (like probation) might be authorized. Essentially the whole ballgame is the discretion of the sentencing judge and the question of whether the sentences of conviction would be served concurrently or consecutively. The sentencing hearing would happen only after a jury enters its verdict on guilt or innocence, and only in the event that there was a conviction on at least one count of the indictment. It would be an evidentiary hearing at which evidence regarding an appropriate sentence would be presented by the prosecution and the defense. I am not familiar enough with the facts of the complaint and the applicable New York State Penal Law provisions to know how the issue of consecutive v. concurrent sentences would be resolved. | It probably would not be, since Trump is a public figure. The ostensibly libeling party would have to act with "actual malice", with "knowledge that the information was false" or that it was published "with reckless disregard of whether it was false or not. | It is unlikely that Bob's conduct would constitute disorderly conduct or disturbing the peace in the fact pattern you described and the police and the Mayor who ordered to police to act have probably violated Bob's constitutional rights. While governments may adopt reasonable "time, place and manner" restrictions on free speech, and the inquiry as to whether a time, place and manner restriction is reasonable is a fact specific inquiry, the facts presented in this question are in the heartland of free speech protections and so an arrest is likely to violate a clearly established constitutional right. Bob believes the mayor to be corrupt. The mayor is an ex police officer. So Bob decides to protest in front of city hall at noon with a sign and speaking loudly about his dislike for the mayor while walking back and forth on a public sidewalk. Bob is in a public place that has a long tradition of being a symbolic public forum for expressing grievances. He is articulating statements that he holds in good faith about a matter of public concern relating to a public figure. Noon is not a time at which there is a need to maintain quiet. There is no indication in the question of any special facts that would modify the usual considerations in this fact pattern (i.e. the building is not on fire requiring fire departments to keep people clear, there isn't a Presidential motorcade nearby, there is no indication that there is an ordinance on the books in advance that attempts to reasonably accommodate protesters in the interest of some important interest (e.g. not interfering with security lines)). Realistically, absent negative facts which are not mentioned, this looks like a strong case for a constitutional violation and a weak one for criminal liability. | An accused would be arrested for the purposes of arraignment ("even a scheduled arrest is still an arrest"). That does not entail that the accused would be held in custody pending or during trial. Many commenters are of the view that Mr. Trump would be released under his own recognizance without bail. Reference: AP News. | You are correct. A judge may only issue a warrant when it is supported by an affidavit, in which the officer seeking the warrant swears under oath to the facts supporting the warrant. Lying on the affidavit would constitute perjury. But judges very frequently just rubber-stamp the warrants without meaningfully reviewing the affidavits, so the primary form of oversight would be the defendant's Fourth Amendment challenge asserting that the warrant wasn't supported by probable cause. If a judge does review the warrant application and finds the officer's statements not to be credible, he can refuse to sign the warrant, and he is free to also carry that credibility determination to subsequent warrants sought by the same officer or other officers in his department. | In all likelihood, the judge's order related to data collection and reselling is not legally enforceable. They weren't parties to the expungement action, so the judge doesn't have jurisdiction over them. And, the First Amendment protects the right to say truthful things pretty absolutely. Arguably, if the sites provided the information without making clear that it might not be current because records were expunged or corrected, there might be a claim for negligent misrepresentation, false light, or even defamation, but I seriously doubt that even those claims would hold up. The language in the order might cause sites to comply out of not legally justified concern, or just a desire to be accurate, even if it is not enforceable. So, it doesn't hurt to bring that information to the attention of such sites and ask them to take down the information. But, when push comes to shove, I very much doubt that you would prevail in court enforcing that order against them. Certainly, if you do nothing, they will do nothing, because they are not psychic and have no idea that the court order related to those records has been entered. Even a valid and enforceable order directed at a party over whom a court has jurisdiction is not effective until the person ordered to comply with it has notice of the order. And, there is no system that gives sites like that notice without you taking action to inform them of an order. | Am i going to jail? I'm so scared. No, probably not. The details depend on jurisdiction, but normally the only crime you could be accused of would be that of forgery. However, forgery by definition requires an "intention to deceive". So my personal advice would be to come clean immediately: Go to your employer, and tell them you did not understand the checkout system and accidentally signed yourself, instead of having the customer sign. If you do that, what you did would not count as forgery, because (as you explain) you did not do it on purpose to trick someone. Now, your boss may still decide to discipline you in some way, maybe even fire you, but that's out of your hand. If they are reasonable, they'll hopefully understand a minor mistake on the first day. That said, it is possible your jurisdiction has special penalties for incorrectly filling out medical documents, so there may be more to it - but I doubt it. To be sure, try asking someone you know and trust who is familiar with the legal rules around medication. Or book a single consultation with a lawyer - this is not cheap (typically around $100 in the USA, or 100€ in the EU), but will give you peace of mind. You could also try asking around if there is a local initiative which offers legal help, possibly a professional organization or trade union. | If I understand your question, you're asking the difference between something like this: "You shouldn't do business with Bob; he's a child molester. Raped a whole bunch of kids. Everyone knows about it." and this: "You're thinking of doing business with Bob? Huh. That's your call, of course. I won't say anything against Bob. But Bill is in the same business, and I happen to know that Bill has never molested any kids." or this: "There are three people you could do business with. There's me. I've never molested any kids. There's Bill; he's a little expensive, but he's never molested any kids either. Then there's Bob. I don't have anything to say about Bob." I don't know the answer under German law, but under U.S. law, it's surprisingly complicated, and varies by jurisdiction. Here is a thorough but somewhat dated article on the subject. New York has recently established an explicit test for defamation by implication: To survive a motion to dismiss a claim for defamation by implication where the factual statements at issue are substantially true, the plaintiff must make a rigorous showing that the language of the communication as a whole can be reasonably read both to impart a defamatory inference and to affirmatively suggest that the author intended or endorsed that inference. Stepanov v Dow Jones & Co., 2014 NY Slip Op 03940 (App. Div. May 29, 2014). That opinion also discusses the other approaches used in other U.S. states. Under that standard, it seems clear that my example statements would be defamatory; any juror would immediately understand both the factual implication and that it was 100% intentional. In practical terms, I doubt any court in the United States would not consider them defamatory. In general, defamation is harder to prove in the United States than in other jurisdictions, because of the strong protections afforded to speech under the First Amendment--but I don't know enough about German law to speak to that issue. |
Do TV games have tax exemptions when prize money goes to an non-profit? In some TV games, where participants are usually famous people, the prize money goes to charity organization. In France, donations to such organizations by individuals give right to tax exemptions. Do the producers of such shows ("Fort Boyard", "Qui veut gagner des Millions", "LOL qui rit sort") have a right to the same tax exemption for game earnings, and do they use it ? In other words, for instance when "LOL qui rit sort" announces 90k€ winnings for various charities, does it cost Amazon 90k€ or less than that due to tax exemptions ? | It doesn’t matter who the winnings go to, they’re legitimate business expenses and therefore tax deductible The prize money for these shows is a tax deductible business expense just like the salaries of the cast and crew, the hire of the studio, or the marketing and advertising expenses. As such they are part of the expenses that are deducted from the revenues to determine the taxable profit. Whether the winnings are taxable in the hands of the winners depends on local tax law. Some countries treat prizes as taxable income, some treat it as a non taxable windfall, and some make a distinction between professional “gamblers” and amateurs. For those celebrity episodes, the celebrities are paid a fee for their performance (because it’s their job) and the prize goes straight from the producer to the charity. | Not with that license Your post makes clear that you have a sports license, not a hunting license. In that case, it was delivered in accordance with R312-40 of the code de la sécurité intérieure: Peuvent être autorisés pour la pratique du tir sportif à acquérir et à détenir des armes, munitions et leurs éléments (...): 1° Les associations sportives agréées (...) 2° Les personnes majeures (...) Sauf dans le cadre des compétitions internationales, ces armes ne peuvent être utilisées que dans les stands de tir des associations mentionnées au 1° du présent article. A license to acquire and own arms, ammunitions and related elements (...), can be granted to: 1° Accredited sports associations (...) 2° People older than 18 (...) Except within the framework of international competitions, those weapons can only be used in shooting ranges of associations mentioned at 1°. | Suppose you want to pay for your son's college tuition with cocaine sales proceeds. You hire your son as an actor in your miserable movie and pay him $90,000 for doing so. The movie is produced by a corporation that you don't have to 1099 when you give it money. The corporation treats the money in as a loan which isn't income to it and doesn't have to report the lender to anyone. The son has the money (after paying income tax on it) and can pay for college for the year. The movie company and son don't appear to be doing anything other than being incompetent movie producers and lousy overpaid actors unless you know the big picture. The money has effectively been spent in a way that conceals its illegal origins and makes it look legitimate. Ergo, money laundering. | Pay him the $1,000: it's his video so it his money. If you're lucky he won't sue you for copyright infringement. If you're very lucky he won't sue the TV station for copyright infringement (because they would immediately sue you under the indemnity clause you undoubtedly signed when you submitted a video you said you owned but didn't). If you're extremely lucky he might buy you a beer. | Only if you ask Valve for permission first, and they agree in writing. I'm not a lawyer, but when I was reading through the Subscriber license you linked, this stuck out to me: You are entitled to use the Content and Services for your own personal use, but you are not entitled to: (i) sell, grant a security interest in or transfer reproductions of the Content and Services to other parties in any way, nor to rent, lease or license the Content and Services to others without the prior written consent of Valve, except to the extent expressly permitted elsewhere in this Agreement (including any Subscription Terms or Rules of Use); (ii) host or provide matchmaking services for the Content and Services or emulate or redirect the communication protocols used by Valve in any network feature of the Content and Services, through protocol emulation, tunneling, modifying or adding components to the Content and Services, use of a utility program or any other techniques now known or hereafter developed, for any purpose including, but not limited to network play over the Internet, network play utilizing commercial or non-commercial gaming networks or as part of content aggregation networks, websites or services, without the prior written consent of Valve; or (iii) exploit the Content and Services or any of its parts for any commercial purpose, except as expressly permitted elsewhere in this Agreement (including any Subscription Terms or Rules of Use). The part that I've bolded is probably the part that makes this against the Terms of Service, since in order to post these sorts of automated messages to their service, you'd need to use a "utility program" to "emulate or redirect the communication protocols used by Valve in any network feature of the Content and Services, through protocol emulation, tunneling, modifying or adding components to the Content and Services". I doubt that Valve would ever agree, since such a program could very easily be used to create spam bots that works bombard users with unsolicited advertisements, but maybe Valve would be willing to cut deals with AAA video game companies to let them deploy tools to automatically manage their store pages. | The argument would have to be either a derivative work under copyright, or a trade dress/trademark claim. Neither sounds very solid at all. Neither copyright nor trade dress/trademark protect ideas like a TV format. They can only protect very similar expressions of an idea that necessarily flow one from the other and, for example, the game mechanics can't be protected by copyright. | california This is a lottery, and thus illegal as a for-profit business Calfornia Penal Code § 319 defines a "lottery" as any scheme for the disposal or distribution of property by chance, among persons who have paid or promised to pay any valuable consideration for the chance of obtaining such property or a portion of it, or for any share or any interest in such property, upon any agreement, understanding, or expectation that it is to be distributed or disposed of by lot or chance." Under Calfornia Penal Code § 320 (with some later exceptions for nonprofit charities), Every person who contrives, prepares, sets up, proposes, or draws any lottery, is guilty of a misdemeanor People v. Settles held that an obligation, such as the one you propose, is "property" within the meaning of the above section of the Penal Code: The duty of the operators of this game to permit the winner to play further games free is an obligation arising from contract, and the right of the player in the matter is personal property (Civ. Code, sec. 663), and a thing in action. It is, therefore, property within the meaning of [29 Cal. App. 2d Supp. 787] section 319, Penal Code. Therefore, running this scheme as a for-profit business would constitute a misdemeanor in California. | No "Election interference" is not a crime or a legal category. It is a term often used by the press to indicate a variety of actions, some illegal, some legal but argued to be improper or dangerous. For example, it is perfectly legal for anyone, citizen or alien, to make statements about the election or the candidates, even if these are knowingly false, as long as they do not rise to legal defamation (and the bar for that in an election context is very high). But doing this has been called "Election interference" in the press. It is generally unlawful for an alien to make a direct campaign contribution. The Federal Election Commission page on Who can and can't contribute says: Campaigns may not solicit or accept contributions from foreign nationals. Federal law prohibits contributions, donations, expenditures and disbursements solicited, directed, received or made directly or indirectly by or from foreign nationals in connection with any election — federal, state or local. This prohibition includes contributions or donations made to political committees and building funds and to make electioneering communications. Furthermore, it is a violation of federal law to knowingly provide substantial assistance in the making, acceptance or receipt of contributions or donations in connection with federal and nonfederal elections to a political committee, or for the purchase or construction of an office building. This prohibition includes, but is not limited to, acting as a conduit or intermediary for foreign national contributions and donations. There is an exception for the holders of green cards (who do not fit the conditions of the question). This same site's page on Types of contributions also says that: "The entire amount paid to attend a political fundraiser or other political event or to purchase a fundraising item sold by a political committee is a contribution" regardless of the expenses of the committee or market value of the merchandise. Thus when the question says that "purchasing election merchandise is illegal" it is correct if that merchandise is being sold as a fundraising effort, as most campaign merchandise is. But when it refers to "discussing elections with a US citizen" that is not only not illegal, it is protected activity under the US First Amendment (freedom of speech), which is not limited to US citizens or residents. If a statement or electioneering communications is published, and its publication is paid for by a foreign national, and this is done at the request of or is suggested by a candidate or campaign committee, the payment will probably constitute an "in-kind contribution" and thus fall under the law against contributions by a foreign national. The above is a matter of federal law and Federal Constitutional rights, and so applies in every part of the US, including CA. Any state law purporting to make an alien "discussing elections with a US citizen" unlawful would almost surely be held unconstitutional and void on its face, although I don't know of a case where there was a court decision on this exact point. A law requiring a widely distributed statement supporting or opposing a candidate in an election identify its sources or sponsors might well be constitutional, by analogy with the "I approve this message" requirement for broadcast advertisements. |
If we use a generative AI to generate original images, can we use these images in a product that we sell? Generative AI can create images. Assume that these images are totally original. Would that mean that we would have the full rights to the images created by the AI? Could we use these images in a product that we sell? UPDATE "AI Art" is possible thanks to Latent Diffusion Models, the most popular being DALL-E, Craiyon, Latitude Voyage, Midjourney and Stable Diffusion. As of this writing, only Stable Diffusion is open source. Here is their declaration admitting that all work created with the tool grants all rights to the user of the tool (assuming you don't do illegal things). | Per a decision of the US Copyright Office last month, AI generated images are not subject to copyright. That means you can use the generated images for any purpose you want1, but so can anyone else. However, the specific usage of a given image might be protected - so if you put a caption on the image and arrange it in the form of a comic (as the artist in that example did), that specific text and arrangement can be protected, but the underlying image can't be. Laws may differ elsewhere in the world, but that's the current stance in the US. 1 Subject to any appropriate laws, including any copyright laws which the new image itself may violate. Just because the image isn't protected itself doesn't mean that it can't infringe on someone else's copyrights. See the other answer for more details. | Copyright protection exists for any work (picture, paragraph, song etc), and persists for many years until it expires. Unless the work was created a long time ago, or was created by the US government (not the same as "funded by government money"), you should assume that the work is protected. That means that you must have permission to copy it. Sometimes, a work has associated with it some such permission, in the form of a "license". Without such a license, you have to request the copyright owner for permission to copy – whether or not they say that the work is protected by copyright (because by law it is protected, so they don't have to say that it is). If you request permission to copy, and do not receive the required permission, then you cannot legally copy the work. The copyright holder has no obligation to explicitly deny permission. You can certainly list the URL for an image, you just cannot copy the image in your book. | It's not fair use. Fair use is when you do something that normally only the copyright holder can do. Playing a video game is the ordinary, intended use of the work. In the United States, ordinary use is not protected by copyright. 17 USC 106 sets out the rights protected by copyright. The include copying the work, producing derivative works, distributing the work, and so on. None of these are ordinary use. Someone could perhaps argue that you are creating a derivative work. I doubt that argument would work because you are not taking any protectable elements from the work. But if anyone did argue that, it would make sense to also argue that if that's so, your use would still be covered under fair use because it's transformative, does not substitute for the original work in any way, and takes very little of the work. | No. The images are copyrighted, and you are using them in a way that would leave you with virtually no argument for fair use. The factors for fair use are set out in 17 USC 107, and they indicate that the courts would reject your use: The purpose and character of the use, including whether it is of a commercial nature or for nonprofit educational purposes: There's no indication that your use would be for nonprofit or educational purposes. The nature of the copyrighted work: Works of fiction and art are highly creative works at the heart of the policy for copyright protection. The amount of the portion used in relation to the copyrighted work as a whole: You are apparently copying entire images, though I suppose you could argue that each image is just one small portion of a larger book or website. The effect of the use upon the potential market for or value of the copyrighted work: You are trying to create a board game, putting yourselves basically in direct competition with the makers of D&D. I generally prefer a pretty liberal interpretation of what constitutes fair use, but this just has virtually nothing that would make me comfortable arguing in your favor. | It's complicated You still own your own posts First off, you own everything that you originally created. Posting it on Stack Exchange doesn't affect your rights to your own content. Incorporating suggestions If you copy any of the text from posts that were created by others, you must comply with the CC BY-SA license. The exact version will depend on when the content was posted, and can be viewed by clicking the "Share" link or viewing the post's timeline via the clock icon on the left. Currently, new posts are licensed under CC BY-SA 4.0, which requires you to (basically) provide attribution with the creator's name, a link back to the content, and an indication of whether changes were made. A more detailed description of the exact requirements is here. You would also be required to license the work that you incorporated it into under the same license. However, game mechanics aren't copyrightable. If you merely used mechanics suggested in the posts without actually using the actual creative expression (for instance, names or description text) from the posts, you would not be required to provide any attribution or use any particular license, because you didn't use any copyrightable material from the post. A thank-you would still be nice All that said, it's still a nice thing to do to provide some sort of informal thanks to those who provided valuable assistance, even when you're not legally required to do so. | No you don't. There are two copyright holders regarding the derivative work: yourself, for creating the original. the other artist, for creating the modified version. The other artist has received the right to use your original through the CC-BY license, under the condition that they attribute you appropriately. However, you have not received any rights to the other artist's work. | One cannot use the works of others unless one of the following applies: The copyright holder has given permission, usually in the form of a license, often explicit, but sometimes implied. The work is not protected by copyright. This can happen in several ways, but the most common is that the work is old enough that copyright has expired. In the US, works older than 1927 are currently out of copyright. So are some others, the rules are a bit complex. In many countries, if the author or creator died more than 70 years ago, the work is out of copyright. In some countries this is a different number, between 50 and 100 years. This is not likely to apply to a file distributed with current software. If an exception to copyright applies. In the US this would most likely be fair use. In the UK it would probably be fair dealing. In other countries there are a variety of exceptions that might apply, including personal use in some. AS a comment by Jen points out "use" here refers only to those rights protected by copyright, such as making and distributing copied, making nd distributing derivative works, and the like. (Displaying and publicly performing seem unlikely to apply.) Now lets consider the specific situation, and which if any of the reasons for lawful use might apply. License or other permission. There is no explicit license. Since the program is distributed to be run, there is an implicit license to make the sort of use of the file needed to run the program. If the documentation describes how to employ the file as part of running the program, there is almost surely an implied license to employ it in that way. There is not, however, permission to make copies unless that is needed to run the program. There is surely not permission to make derivative works of the file or distribute copies to others, even if you do not charge anything. Expired copyright This pretty clearly will not apply. Fair use This might apply, or might not. There isn't enough info in the question to tell, not even to make a good guess. If any use would be non commercial, that helps fair use a bit. If the use would be for a different purpose than the one the developers used it for, that helps fair use a lot. If the use of the file harmed the market for the program, or served as a substitute, that lean against fair use. without knowing what the file is, what it does, and how it might be used, one really cannot weven guess. | You can take pictures of public buildings and use them in your game, if you want. You cannot copy pictures (of anything) taken by someone else without the copyright owner's permission, so you need Google's permission to copy their photographs. The public building exception is specifically about architectural works and does not include e.g. murals drawn on buildings, or billboards. In such a case, you would need permission from the copyright holder (the artist, or employer). You might hope for a fair use exception (again, assuming you took the pictures yourself), which has a better chance of succeeding if this is a free game. |
Why do municipalities keep laws on the books that are invalid? Why do some municipalities keep laws on the books that are not valid? For example, what if municipal law violates state law (for example, due to the state law having preemption) -- is it up to the defendant / plaintiff to bring it up, or is the judge supposed to know such things? Does it mean that you should always mention laws that are to your advantage, even if you know that they're invalid, on the off-chance that the other party (whether self-represented, or represented through a rookie lawyer) will not know such detail? What about the party who loses a lawsuit due to such law that's actually invalid -- if they did have a lawyer representing them, do they have any recourse? Would a lawyer be responsible for such poor representation, and what would they owe to the client? | In broad terms, in a three pillar democracy, the job of the legislature is to make the law, the job of the executive is to enforce the law and the job of the courts is to interpret the law. The courts may find that a piece of legislation is invalid, either in whole or in part for any number of reasons. The legislature can respond by: Repealing the legislation Changing the legislation to remove the invalidity Doing nothing. Your first question is why would they go for option 3? I can, off the cuff, think of several reasons: Time pressures, a legislature can only deal with so many pieces of legislation per year - it may not be a worthwhile investment of time to "tidy up" the statute books. Possibility of appeal, the precedent may be open to appeal or having an alternative ruling in a higher court. Precedent, unless and until the decision reaches the Supreme Court or equivalent then the decision is only binding on lower courts. Possibility of change to superordinate legislation, in the particular circumstance you cite, the local authority may leave the law on the books in the hope or expectation that the state law may be repealed or overturned - the local law would then be valid. For your second question, the judge is supposed to know. That said, judges make mistakes so a wise plaintiff/defendant will draw the judge's attention to the current state of the law. It would certainly look bad for them on appeal if it emerged that they did know and allowed the judge to make a mistake. Firstly, they are officers of the court and secondly, justice is blind but justices may remember you made them look like a fool! For your third question ... maybe. However, such a claim would be limited to what you actually lost through your lawyer's malpractice. It can't be the case because you couldn't win it anyway - the law was against you! You may be able to argue that the lawyer should be responsible for some of the costs or losses that arose from you failing to settle earlier. Good luck with that. | Law is more like sport than mathematics You don’t know how it will turn out until you play the game. If a case goes to trial it’s because at both sides believe they can win. Both sides probably have good reasons for their belief. At least one of them is wrong. | It is the job of the judge to instruct the jury about the law. If Texas had pattern instructions I'd look up what the instruction is for this matter, but you don't, so I don't know what the judge would say. But it is the judge's sole prerogative to instruct the jury in the law. If the question is a "commitment question", then it is an improper question and should be disallowed, see Stendefer v. State. The question "Would you presume someone guilty if he or she refused a breath test on their refusal alone?" is such a commitment question, and is disallowed. Similarly, "If the evidence, in a hypothetical case, showed that a person was arrested and they had a crack pipe in their pocket, and they had a residue amount in it, and it could be measured, and it could be seen, is there anyone who could not convict a person, based on that" (Atkins v. State, 951 S.W.2d 787). An improper commitment question could be of the type "could you refrain...": Let us assume that you are considering in the penalty phase of any capital murder case, okay? And some of the evidence that has come in shows that the victim's family was greatly impacted and terribly grieved and greatly harmed by the facts․Can you assure us that the knowledge of those facts would not prevent you or substantially impair you in considering a life sentence in such a case (Penry v. State, 903 S.W.2d 715). One way in which a commitment question can be legal is if it asks basically "can you uphold the law?", for example "can you consider probation in a murder case?", or "are you willing to consider mitigating circumstances". The wrong answer to those questions will lead to a for-cause dismissal. The third question is flagrantly improper, the first is rather improper, and the second probably is. If the question can be framed in terms of a candidate's willingness to follow the law, then it should be legal. | There is a firm difference between giving advice on "what the best decision is likely to be" and "what decision to make". The former is what lawyers must do, which comes from: Conduct and Client Care Rules: Whatever legal services your lawyer is providing, he or she must— discuss with you your objectives and how they should best be achieved: give you clear information and advice: Lawyers and Conveyancers Act 2006: legal work includes— advice in relation to any legal or equitable rights or obligations: So, there is nothing in the law that requires lawyers to advise you on "what decision to make". Instead, they explain to you the range of possible decisions and what ramifications / implications / consequences they have. They won't make the choice for you — it's always yours. Is it legally correct that a lawyer is not permitted to provide advice on what decision to make It is not strictly true that a lawyer "is not permitted". Rather, they are not obliged to do so. And they have a damn good reason not to: there is a huge difference between being responsible for legal facts based on which you make decisions, and being responsible for decisions themselves. | There is, of course, no way to tell how the Court would deal with such a case today. This is not a frequently litigated issue, with lots of case law. I note that in the case you link to, the court limited the statute to false claims made "with a fraudulent purpose". This normally means that the claimant is attempting to secure an improper financial or materiel advantage. In the United States v. Tandaric case, the person convicted had falsely claimed to be a US Citizen on an employment application for a company which did not hire non-citizens, and so gained a job through this false statement. He could have been convicted of ordinary Fraud. The court has not been as protective of Fraud under the First Amendment as it has been of speech generally, or even of false but non-fraudulent speech. I am not at all sure if the court would overturn this law in a similar case today. Edit: In the United States v. Achtner case, the court wrote: But we agree with the District Court that the representation of citizenship must still be made to a person having some right to inquire or adequate reason for ascertaining a defendant's citizenship; it is not to be assumed that so severe a penalty is intended for words spoken as a mere boast or jest or to stop the prying of some busybody, ... This seems to dispose of the example in the question of a neighbor who is merly inquiring as to the character of the area, or perhaps from simple curiosity, and a false speaker who seems to get no direct benefit or advantage from the falsehood. Both linked cases involved false statements made to employers or potential employees, during wartime at that, with the false speaker's employment apparently at stake. | This is not legal advice, It is not even primarily a legal opinion. It is a legal position. The lawyer, acting on behalf of the agency from which you requested information, is giving the reasons why that agency is declining your request. The lawyer is presumably either an employee of the agency, or has the agency as a client. In any case, this is notice of the position that the agency would be likely to adopt if you took further legal action, such as a suit to compel disclosure. Lawyers provide such position statements ion behalf of clients or employers all the time. Such statements indicate why certain action is taken, what basis the client or employer has for taking or not taking certain action, and often indicate the nature of the defenses or theories that will be used should a lawsuit follow, although the client or employer is free to change the theory at the pleading stage. Not only is it not unethical for the lawyer to respond in this way, the agency is, I am fairly sure, required by the law to provide a valid reason when a request is declined. That is what they have done, provide a reason that they claim is valid, with some legal reasoning about why it is valid. Note that I express no view on whether the reason given is in fact valid, or would be sustained in a suit. That would be a different question. | This an instance of the general rule ignorantia legis neminem excusat: ignorance of the law is no excuse. If the municipal ordinances state that a particular place does not allow parking at certain times, then if you park there you have violated the law and will get ticketed. There is no requirement that there be signs prominently posted saying that you must obey the law in this particular location. A law might itself require there to be postings, for example speed limit law pertaining to school zones typically are stated in terms of "posted" boundaries. Assuming that the ordinance doesn't have such a "as posted" requirement, you have no legal leg to stand on, and the burden must be shifted to your political leg. If, for example, you were in Pennsylvania, 75 PaCSA 3353(d) permits local parking ordinances: The department on State-designated highways and local authorities on any highway within their boundaries may by erection of official traffic-control devices prohibit, limit or restrict stopping, standing or parking of vehicles on any highway where engineering and traffic studies indicate that stopping, standing or parking would constitute a safety hazard or where the stopping, standing or parking of vehicles would unduly interfere with the free movement of traffic. Signs are kinds of traffic control devices. Since PA does not statutorily prohibit overnight parking, any local restrictions on overnight parking would require signage. Thus restriction such as this one that "The following vehicles shall not be parked between 9:00 p.m. and 6:00 a.m. on the streets...", applying to commercial vehicles among others, would require a sign. That borough has an interesting ordinance stating that In the event of a conflict between the Codified Ordinances of the Borough of Lansdale and the provisions set forth in the Pennsylvania Motor Vehicle Code at 75 Pa.C.S.A. §§ 3351 through 3354, as amended from time to time, the provisions of the Codified Ordinances of the Borough of Lansdale shall control. Generally speaking, local ordinances are subordinate to state law, so this provision is legally questionable (although: the borough does not actually deny the signage requirement, so technically this is not a conflict, it is just ignoring state law – if there is no signage). The borough could of course argue that they were unaware of the state requirement to post no-parking signs, but ignorantia legis neminem excusat. | If 'literally 300' attorneys declined your case on the basis of a phone call, without looking into the details, I can see three options: You are unable to communicate the nature of your case clearly. In this posting, you mentioned complaints against a company, a municipality, and a landlord, plus being evicted. Focus on explaining one case. If you think you 'know for a fact' that you have several big payouts coming, there is the first problem. Nobody knows what a jury will decide. An attorney might hesitate to work for a client who does not understand this. Litigation is always a risk. All your cases actually lack merit, a lawyer sees this and you do not. Not knowing the cases, I cannot tell. (And no, you should not explain them in detail on the web. If they do have merit, posting your strategy hurts the cases.) Your state has a vexatious litigant list and you are on it. That would not prevent an attorney from taking your case, but it might make them hesitate. |
Why do some US States have a different age of consent for each gender? Utah and 8 other US States have different ages of consent for each gender. Why is this? | Women can get pregnant, so men can be held to stricter rules: From https://en.wikipedia.org/wiki/Ages_of_consent_in_the_United_States Although legislation tends to reflect general societal attitudes regarding male versus female ages of consent, Richard Posner notes in his Guide to America's Sex Laws: The U.S. Supreme Court has held that stricter rules for males do not violate the equal protection clause of the Constitution, on the theory that men lack the disincentives (associated with pregnancy) that women have, to engage in sexual activity, and the law may thus provide men with those disincentives in the form of criminal sanctions. Posner, Richard (1996). A Guide to America's Sex Laws. The University of Chicago Press. p. 45. ISBN 0-226-67564-5. The case cited is Michael M. v. Superior Court, 450 U.S. 464 (1981). However, to modern sensibilities, this doesn't justify the states that have age of consent lower for women. [The pregnancy argument would mean states could punish an adult male for sex with a minor female, to protect the woman. Whereas a minor male of that same age doesn't necessarily need the same protection, at least for that concern.] Law in those states seems to be an attempt to mirror the historical tendency for men to be slightly older than women when marry - but re goal of discouraging sexual predation, those states have it backwards. I'd have to agree with the answers that speculate this is a patriarchal holdover that eventually will change or be overturned. [But US Supreme Court - having ruled it isn't inherently an Equal Protection violation - seems inclined to leave these laws alone regardless of which age is slightly lower; leaving it to the states to decide the non-symmetric circumstances of the sexes.] More detail from the case itself: (a) Gender-based classifications are not "inherently suspect" so as to be subject to so-called "strict scrutiny," but will be upheld if they bear a "fair and substantial relationship" to legitimate state ends. Reed v. Reed, 404 U. S. 71. Because the Equal Protection Clause does not "demand that a statute necessarily apply equally to all persons" or require "things which are different in fact . . . to be treated in law as though they were the same," Rinaldi v. Yeager, 384 U. S. 305, 384 U. S. 309, a statute will be upheld where the gender classification is not invidious, but rather realistically reflects the fact that the sexes are not similarly situated in certain circumstances. Pp. 450 U. S. 468-469. | […] that prior to 2016, Germany had some outdated […] laws. […] The changes of November 9, 2016, BGBl. I 2460 ff, were brought forward under the impression of the 2015 NYE spike in reported sexual assaults. Particularly incidents around the Cologne train station/cathedral area were widely received. […] outdated rape laws. No, there was no change in the subsection concerning rape. Only editorial changes were made, now following the “new orthography”, less pompous wording/update to today’s parlance, and change in numbering. This meant that no did not mean no, […] If I ask you to “touch me down here” and you say “No” and I take your hand regardless and, without (physical) resistance from your side, place it at the respective location, then it’s sexual assault now, because you said “No”. Previously, it would have required force, e. g. grabbing your hand, to constitute a criminal offense. […] the victim would have to demonstrate injuries from self defence. […] Legally – what the law says – it is not necessary. You will not find a single reference in the law “the victim must demonstrate injuries”. However, successful persecution will be difficult in a he-said-she-said situation. If the court cannot be convinced, it will decide in dubio pro reo (i. e. acquit the accused). This is a general issue of criminal prosecution, though, but people get particularly agitated if it is concerning sexual self-determination. It is notable that a change in law does not bring improvements in that regard. […] a victim being too drunk to consent was not enough […] Previously, there was “in a defenseless situation”. Courts (not the police) interpreted this mostly restrictive. Being drunk does not automatically mean being defenseless (and arguably some people even like drunken sex/having sex while on drugs). Now there is an additional alternative “taking advantage of a person’s physical or psychological condition causing a significant impairment in forming or expressing his will, unless he gives his express consent”. This is a shift toward a subjective assessment of criminality. A sexually very experienced person is well-versed in his capability of giving consent to sexual interactions, whereas a sexually-inexperienced person exhibits “significant impairment” at an earlier level. It is yet to see how courts deal with that. […] When did Germany officially implement this law, […] The changes took effect the next day, on November 10, 2016. Technically, there’s no “implementation period”. However, on November 10, 2016, no lawyer could have definitely answered, for instance, the question “What is a legal definition of ‘against apparent wish’?” | Can Alice still get child support, or will she be denied because she can not definitively prove which man is the child's biological father? The legal standard is a preponderance of the evidence (i.e. more likely than not) and there is plenty of evidence that can be offered in addition to DNA evidence, such as testimony under oath from people in a position to know who was having sex with whom at the relevant times. Contrary to a common misconception, testimony under oath is still solid evidence that can support a verdict on appeal. Alice had neither a long standing romantic relationship with Bob nor anyone that was a witness to the sexual act, thus making the question of who she slept with difficult to prove. It isn't that hard to prove. Q to Alice's physician: Based upon an ultrasound, when did Alice conceive? A: April 5-8, 2021. Q to DNA expert: Based upon the DNA test, who could the father be? A: Billy or Bob. Q to Alice: Did you have sex with Billy between April 5-8, 2021? A: No. Q to Alice: Did you have sex with Bob between April 5-8, 2021? A: Yes. Q to Billy: Did you have sex with Alice between April 5-8, 2021? A: No. Q to Billy: Why not? A: I was at the Shuffleboard World Cup in Tibet, I have time stamped pictures. Q to Bob: Did you have sex with Alice between April 5-8, 2021? A: -- if Yes, judge says he believes Bob and Alice and the case is over. -- if No, the judge decides who among Bob, Billy, and Alice the judge believes based upon other evidence. Ultimately, the judge has to rule between the two based upon non-genetic evidence and resolve credibility disputes just as in any other case that doesn't involve DNA evidence (which is the vast majority of cases). Also, the edge cases are few are far between. Identical twins are rare to start with, and few women have sex with more than one identical twin in the several day period when she could have conceived or didn't know which twin she had sex with. It has happened at least once in history (post-DNA testing), but you can probably count the number of times that it has ever happened on one hand. For example, presumptions from cohabitation, marriage, and claims of paternity often resolve paternity disputes without DNA evidence. Further, to the extent that there is good faith uncertainty (perhaps everyone agrees that the mother has sex with both twins on the only possible day of conception and nobody really knows), the downsides to a mistake in the larger cosmic sense of the overall paternity law system are minimal, as identical twins very rarely become deeply alienated from each other and instead tend to be close and intensely cooperative once they discover each other, and tend to be similar to each other in almost every respect depriving the child of little if the court gets it wrong. Realistically, identical twins are particularly likely to settle out of court so the judge doesn't have to decide. In one of the only two actual cases I could locate that went to trial (in Brazil), both twins were ordered to pay child support because the evidence showed that they actively conspired with each other to confound the mother and the court regarding who the father was, and conspiracies can support joint and several liability. The other case reported in a news story had convincing circumstantial evidence supporting one identical twin over the other that probably establish a presumption of paternity for one twin and not the other. One of the twins, who cannot be named for legal reasons, went to court last summer in the hope of forcing the mother to grant him access to the child. Although his name is not on the birth certificate, he claims he is the only father the boy has known, cared for him every other weekend, provided financial support and was even known to him as 'papa'. But then the man's relationship with his girlfriend broke down and the visits halted. When he began legal proceedings to prove his paternity, the mother made her claim that she had been sleeping with his twin at around the same time. The twins have said they knew they were both having sex with the woman, but argue that only one had sex during the period of conception. Both refused to undergo a DNA test: the complainant refused to pay the £335 charge while his brother, who has since married and fathered children, does not consider himself involved in the dispute. Now, however, Judge Jolin has asked the complainant to take a DNA test by 1 December to ensure he can claim even possible paternity, while his brother may also be tested. (The second case is in Quebec and the cost of the test in pounds is apparently a currency conversion value.) (It is possible in principle to distinguish even identical twins from each other with high coverage whole genome tests that would reveal a few random mutations in each twin out of billions of possible mutations, but it is currently prohibitively expensive to do so.) Can she even get a paternity test given that it would not be definitive proof which man was the father? Yes. This rules out all 4 billion men in the world minus two of them. It has great probative value, narrowing the list of possible fathers down to two. | Here is a summary of EU law on gender equality. Have a look at Section 3.4; there is an exemption allowed when the specific tasks require either men or women and there have been specific decisions both ways. The Royal Marines were allowed to exclude women from specific roles; the Bundeswehr were not allowed to make a general exclusion of women. It is certainly arguable that a provision allowing the conscription only of one sex is unlawful. If you are serious about challenging this law then be aware that it will take a lot of time, money and may put your liberty at risk. It is likely to take considerably longer than your period of service to take this through the court system; ultimately this is the sort of thing that will end in the highest court in Denmark. You may be spending time in goal waiting for the outcome. If you want to go through with this you should consult a lawyer who is expert on constitutional law. | The comments have basically covered this, but: It's a slightly weird parallel structure ("who shall not be at least 25, and been a citizen for 7 years, and who shall not be a resident"). The Constitution is not written in fluid 21st-century English. But the obviously correct way to parse the sentence is that no one can be a representative who isn't a 25-year-old or older who's been a citizen for at least 7 years; furthermore, no one can be a representative who wasn't a resident of the state they represent when they were elected. With some parts of the Constitution (like the Second Amendment), the drafting results in actual disputes about the intended meaning. With other parts (like here), only one reading makes any sense. It's the same with the requirements to be President. The Constitution says "No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President," which could be read as "you're not eligible unless, when the Constitution was adopted, you were either a citizen of the US or a natural-born citizen." But that's a silly reading, so "at the time of the Adoption" is read as only applying to "a Citizen of the United States:" natural-born citizens are eligible period, and people who were born before the US was a thing but were citizens by the time the Constitution was adopted were grandfathered in. | What discrimination? As explained in Conflict between a religious belief that accounts for the existence of transgender people vs. one that doesn't the Constitutional protection of the Free Exercise Clause applies to the exercise of a deeply held belief (religious or not). So, let's accept that a person believes that certain sexual practices or gender identity is morally repugnant for whatever reason and that belief triggers the Constitutional protections. That means, that the person cannot be forced to engage in those sexual practices or adopt a different gender identity. It does not mean that they have a licence to discriminate against people who do in a work or public environment - they can, of course, choose to avoid such people in their private life. Alternatively, if the person believes that they are required by their faith to discriminate on the basis of those characteristics then such a belief does not get Constitutional protection as it is now affecting the rights of others. In the same way that someone who believed in human sacrifice would not get Constitutional protection. | General Considerations While I am not convinced that this question isn't proper for this site, I don't think that, for the most part, it has a clear and simple answer. Also, strictly speaking there is no such thing as a "man-hating state" because de jure distinctions based upon gender in divorce law are constitutionally forbidden. But, that doesn't mean that some states don't have laws that are usually more favorable to a typical man than others. For example, there is meaningful variation between states in the law of maintenance (a.k.a. alimony) that favor the more or the less affluent spouse, although less than you might naively expect. Interstate Differences There are a handful of states that are quite distinctive. For example, in the states where I am licensed, New York State was the last state to have a "no fault" divorce option, which could help you or hurt you depending on the circumstances as judges there still have a mindset that fault matters, and Colorado has some distinctive rules related to presumptive maintenance awards, to non-parental custody claims, and to the treatment of property received by gift, or inheritance or owned prior to the marriage. But, most U.S. states are very similar on most important issues, particularly on matters of child support (where federal welfare regulations create strong incentives for states to have almost uniform laws) and parental rights and responsibilities (where the "best interests of the child" standard is almost universal with only slight differences in case law). Every state now has a "no fault" divorce option (and most completely disregard all forms of marital fault in making their decisions) and most states afford judges in divorce cases very wide discretion on issues of property division and maintenance. There are differences between states regarding the legal standard for dividing property in divorce (some states are "community property" states, some are "quasi-community property" states and some a separate property states each of which have detailed rules that matter in some states). But, it also isn't uncommon, for example, to divide property acquired in a community property state according to the community property rules of the state where the property was acquired rather than the property division rules of the state where the divorce is taking place. The differences tend to be greatest in situations where there is substantial property owned by a spouse that was owned prior to the marriage or was received by gift or inheritance, particularly in a long marriage. There are also some states that have more specific rules governing maintenance awards (a.k.a. alimony), but the majority rule affords a judge immense discretion in making maintenance awards. So, often the tradeoff is not so much between a more favorable regime and a less favorable regime on the merits, but between a more predictable regime and one with a greater range of possible outcomes, even though the outcome in the average case may be very similar. Sometimes very fine details can really matter (often much more than "big picture" issues that are used to classify state divorce law regimes). For example, some states use the economic circumstances of the parties on the date that the divorce is filed to make decisions on property division and maintenance, while others use the date of the divorce hearing. If your family's economic circumstances are in rapid flux, either up or down, that difference could be huge in your particular case. And, incidentally, there is nothing inherently pro-husband or pro-wife about either rule. One rule might favor men with rising fortunes, while another might favor men with falling fortunes. Intrastate Differences Are Mostly More Important Than Interstate Differences For the most part, however, the differences in typical outcomes between particular judges and particular geographic regions within a state are more important than the differences between states. This is also why you should usually ignore anecdotal evidence you hear that is usually specific to a judge in someone's case, rather than having much to do with the law of a particular state. Your mileage will vary. Judges in affluent counties, for example, may be more inclined to think that a higher alimony award is necessary to maintain someone's standard of living, but may also be more sophisticated on average, in understanding assets like ownership interests in closely held businesses or complex financial instruments, that may be unfamiliar to judges in less affluent counties. Divorce cases in counties that are growing rapidly in population typically take longer to process cases than in counties that have stable or declining populations, because the number of judges assigned to a county typically lags behind changes in population, and judges with larger case loads only have so many days a year upon which they can hold hearings. There are some counties in Colorado where you can get a two day divorce hearing six months after the case is filed and others where you can expect a two year wait for a two day divorce hearing, due to differences in local caseloads. Particularly in "best interests of the child" determinations, the outcome is inevitably influenced by the personal life experiences of your particular judge and two different judges in the very same county could easily come up with radically different decisions based upon precisely the same facts. Some of this, on average, is influenced by regional culture. For example, an average judge in rural Alabama may have different ideas about the best interests of the child, than an average judge in Seattle, Washington. But, your case wouldn't be in front of an "average judge", it would be in front of one particular judge. It is entirely possible, for example, that your rural Alabama judge spent most of his life in Seattle, was chosen to serve as a judge because there were no other qualified lawyers who wanted the job in that rural county, and has views about what is in the best interests of a child that are very different from the "average" rural Alabama judge. In general, judges in rural areas are more urban in their sensibilities and more secular in their world views than the general population (per a survey of rural judges I saw in print form and no longer have an easy way to cite). How To Evaluate Your Options As a practical matter, the best approach for someone in your situation is to identify several different particular places you might choose to move (down to the particular county level), and then talk to lawyers in each to evaluate your likely prospects in light of the facts of your particular case. While a lawyer licensed in only one state is generally not forbidden from comparing the law of multiple states by the laws of professional responsibility, the practical reality is that few lawyers have the kind of expertise necessary to do so on a national basis. You might find a lawyer near a state boundary who is knowledgable, for example, about the differences in the divorce laws between New Jersey, New York and Connecticut that are all present in the same metropolitan area. But, there are few lawyers personally qualified to make meaningful and accurate comparisons between, say, Georgia, Maine, North Dakota, Texas and Idaho. Your Attitude Towards The Process Matters Finally, one sentence in your question really sticks out: "I need to get a divorce and don't want to land in a man hating state." So does your statement "It's important I at least get 50/50 of my kids." These sentences reflect a somewhat cynical and self-centered attitude towards divorce law and the divorce process, in general, which is quite common among men contemplating a divorce, and which almost always receives a negative response from judges, no matter which county they serve. If a judge sniffs a hint that you think that the process isn't fair, or if a judge discerns that you care more about what you want than what is best for your kids and fair for your wife, almost every judge in every jurisdiction will burn you. If a judge gets any sense that you have that kind of attitude, you are almost certain to have a worse result in almost all matters in which the judge has any discretion, which is almost all of them in a case like yours. UPDATE July 9, 2019 To Address Additional Sub-Topics: Two areas where there are significant differences in the law between states are how infidelity is treated legally and how marital agreements are treated. Heartbalm Lawsuits One quite important issue in a handful of outlier states is the existence or lack thereof of heart balm lawsuit such as lawsuits for "alienation of affections." These are lawsuits by a spouse against someone having an affair with that spouse (usually as satellite litigation parallel to a divorce). As explained here (with further sources at the link), as of 2010: [I]n fiscal years 2000–2007, there were an average of 230 alienation of affections filings in North Carolina per year — a bit over 0.5% of the number of all divorces. The tort is also recognized in Hawaii, Illinois, Mississippi, New Mexico, South Dakota, and Utah, but it seems to be often litigated only in North Carolina and (to an apparently smaller extent) in Mississippi[.] Prevailing parties have won hundreds of thousands to millions of dollars. These states also frequently allow the consideration of fault in making economic decisions in divorce cases as well (although the "best interests of the child" standard is the norm even in these states). The U.S. Supreme Court has declined to declare these actions unconstitutional on several occasions (usually be simply denying certiorari in cases well suited for addressing the issue). Most other states have abolished these lawsuits, and in Colorado, it is actually a crime to try to file one in its courts or to attempt to secure a settlement of such a case. In a case where infidelity is at issue, this factor can be a very significant one. Choice of law issues (i.e. determining which cases are and are not, for example, subject to the North Carolina alienation of affections tort in various complicated fact patterns with some in state facts and some out of states facts), can be very tricky, however. I am certain that this is still good law in North Carolina and Mississippi, but the status of these lawsuits in other jurisdictions may have changed in the last decade. Criminal Adultery Statutes [In] Virginia, as in 22 other [states] including Massachusetts, adultery remains a criminal act, a vestige of the way US law has anchored legitimate sexual activity within marriage. In most of those states, including New York, adultery is a misdemeanor. But in others — Massachusetts, Idaho, Michigan, Oklahoma, and Wisconsin — it is a felony, though rarely prosecuted. In the armed forces, it can be punished severely, although usually in combination with greater wrongdoing. In nearly all the rest of the industrialized world, adultery is not covered by criminal code. From the Boston Globe crediting the New York Times (November 15, 2012). As of 2019, only 19 states have criminal adultery statutes as several states have repealed this statutes since 2012. In the context of a divorce in a "no fault" divorce state (all states have "no fault" divorce, but some also have a parallel fault based divorce system or allow consideration of fault in economic decision making in the case) where there has been infidelity this creates the tricky situation where the divorce court may not consider adultery in making its decisions, even though that conduct is a crime (and sometimes even a felony) in that state. Generally speaking, these statutes are vary rarely actually prosecuted despite the fact that the "crime" is fairly common and is reported in those states more frequently than you would guess, as a matter of prosecutorial discretion, and generally speaking, it is not possible to prosecute this crime without the approval a prosecuting attorney who is a government official responsible to an elected official, usually a county attorney, district attorney, or state attorney general. But, the mere fact that conduct is a crime can influence how that conduct is treated in a civil case. Pre-Nup and Post-Nup Recognition The are modest differences in the extent to which different states will treat a prenuptial agreement or a post-nuptial marital agreement as valid (and there are also differences in how individual judges evaluate their state's legal standard). In a case where one of these is allegedly present this could be quite significant. For example, in some states, a marital agreement is presumptively invalid or conclusively invalid, if it is not in writing and does not have a certification from an attorney representing each party and other disclosures mandates by statute. In other states, the requirements for a marital agreement are only slightly heightened relative to an ordinary contract between strangers, although most require them to be in writing and screen them for signs of "undue influence" in persuading a "poor spouse" to give up important rights. A few states even honor oral agreements between spouses entered into before or after the marriage, if they are proven with sufficient specificity and convincing enough evidence. No states that I am aware of allow for decisions relating to child custody to be made in a marital agreement, as void because a key party (the child) does not consent to it, and do not allow the grounds for a divorce to be changes except through a "covenant marriage". Most states (but not all) do not allow valid marital agreement to contain rights that depend upon marital fault. States also vary in the extent to which arbitration clauses in marital agreements (such as an agreement to submit a divorce to a Jewish rabbinical forum for arbitration) are honored. There are also choice of law issues with regard to all of these questions. Some states will apply the law of the state where the agreement was allegedly entered into in order to determine its validity, while other states will simply apply forum state law to evaluate that question regardless of where it was executed because the forum state has jurisdiction over the couple and the marriage at the time of the divorce. Neither approach is forbidden by the U.S. Constitution. Covenant Marriage Three states also have what amounts to a marital agreement since it customizes the obligations of marriage called covenant marriage that basically limits divorces to either fault based divorces or "no fault" divorces with much longer waiting periods than usual. Covenant marriage is a legally distinct kind of marriage in three states (Arizona, Arkansas, and Louisiana) of the United States, in which the marrying spouses agree to obtain pre-marital counseling and accept more limited grounds for later seeking divorce (the least strict of which being that the couple lives apart from each other for two years).... Despite the goals of covenant marriage proponents, in the three states with covenant marriage statutes, only an extremely small minority of newlyweds has chosen covenant marriage. In Louisiana, between 2000 and 2010, only about 1 percent of marrying couples chose a covenant marriage, with the other 99 percent choosing to marry under standard marriage laws permitting no-fault divorce. In Arizona, estimates of the rate of covenant marriage among new couples range from 0.25 percent to 1 percent. In Arkansas, a similarly very small number of couples choose covenant marriage. Covenant marriages are not necessarily recognized outside covenant marriage states, making these limitations, in practice, easy to circumvent by moving to a new residence across a state line for a short period of time. This is one of several reasons why they are not popular options for newly marrying couples. | With respect to disciplining its students and employees, a private school can basically do whatever it wants. There's more freedom to do so with respect to students than with employees, who have greater protections derived from anti-discrimination laws, collective-bargaining agreements, and the like. If a private school wants to impose a No Burger Tuesdays and a complete ban on political activity, that's probably going to be permissible. The First Amendment will protect the school's right to associate with only those who meet its standards, as absurd as those standards may be. Again, there are exceptions to this rule, like Title IX, which requires equal educational opportunities regardless of sex, but they don't have much bearing on your question. Even for a public school, there will be quite a bit of latitude here, because these rules don't actually regulate off-campus conduct. If a student wants to attend an off-campus public gathering, the campus police aren't going to lock him in his room or arrest him for leaving campus. The rule is simply that if you attend a public gathering off campus, you may not come back on campus afterward to threaten the lives of your classmates. |
Why are charges sealed until the defendant is arraigned? The indictment against Trump is sealed until he's arraigned. I am confident that the public (especially the legal community) is curious as to the exact charges. Why not release the charges to the public before today? I am merely trying to understand: Does this somehow preserve the integrity of the process or defendant's rights? | In a normal case, it is not merely the contents of the indictment that are secret, but also the very fact that an indictment exists. This level of secrecy surrounding grand jury proceedings is a practice so old that it may be impossible to say with any certainty why it began, but it is currently justified on various grounds. For instance: It reduces the danger of reputational harm to suspects who the grand jury believes have not committed any crime. It reduces the danger of witness tampering. It reduces the danger of defendants taking additional steps to avoid detection. It reduces the danger of defendants fleeing upon learning that they've been indicted. Naturally, the importance of any of these considerations will vary from case to case. So, had the process gone normally, the public would not be curious about the Trump indictment because it wouldn't even know the Trump indictment existed. But media leaks put the court in an awkward position, as the court was still legally obligated to pretend it didn't even know whether an indictment existed, even though the defendant had been blabbing about it for days on social media. | The potential problem is if there is a form which you had to sign which says "I am a US citizen", and you signed the form (who reads the fine print, anyhow?). Unfortunately, that statement is false, and there are consequences for making a false statement. However, that law penalizes false statements with the intent to deceive, not mistaken statements. Nevertheless, this is a matter that a professional really needs to deal with. If there was no form and they didn't verbally ask you to assert that you are a citizen, then there is less of a problem (for you), but still one needs to be extremely cautious in dealing with the court. [Addendum] It is highly likely that the form contained wording like "swear" or "certify" and mentions "perjury", so the error would be in the ballpark of perjury. Perjury is making "a false statement under oath or swears to the truth of a false statement previously made and the statement is required or authorized by law to be made under oath". Aggravated perjury is perjury which "is made during or in connection with an official proceeding and is material". The term "material" means "matters; is not inconsequential". The consequence of a non-citizen improperly serving on a jury is that a mistrial has occurred, which is not inconsequential. Aggravated felony is a third degree felony. The penal code says that An individual adjudged guilty of a felony of the third degree shall be punished by imprisonment in the Texas Department of Criminal Justice for any term of not more than 10 years or less than 2 years. (b) In addition to imprisonment, an individual adjudged guilty of a felony of the third degree may be punished by a fine not to exceed $10,000. I must emphasize that an essential element is "intent to deceive and with knowledge of the statement's meaning", an element that cannot be present if there is no awareness of such a statement. Thus an innocent mistake could be legally excused. When you become aware that a statement made under oath was false (assuming such a statement was made), then in maintaining the falsehood, that would be intentional deceit. This is why it is necessary to consult with a lawyer. On the Houston form, you would have to check the "are a US citizen" box. The Fort Bend county form has you certify and sign on the front page: it does not require you to certify that you are a US citizen, only to certify (and sign) if you are not – so if you failed to read the back side, that isn't a literally false statement. I can't locate an online form for Tarrant county, so dunno if that out is available. | I will assume that your question pertains to the United States. In other jurisdictions, different rules could apply. Context matters. The usual penalty for spoliation of evidence (the technical term for what you describe) in a civil case is a judicial determination or jury instruction that the evidence destroyed would have established the relevant part of the other side's case had it not been destroyed. In all of these cases, your failure to take affirmative action to preserve the evidence once you knew that there was a bona fide likelihood that you would be sued could be held against you by making an adverse determination that the evidence would have been unfavorable to you and possibly also money sanctions. You could not be held in contempt of court for this if these events happened before a case was commenced. In a criminal case, where you are a defendant, you have an absolute right to not incriminate yourself and do not have to take affirmative action to preserve evidence, although this right is limited to criminal cases and your failure to preserve evidence can still be held against you in a civil case. Certainly, in situation 4 you are a potential criminal defendant, so the 5th Amendment protection would apply. In situations 1 and 2, where the precautions were not put in place to facilitate a crime, the 5th Amendment would protect you if you were a potential criminal defendant, but suppose that you are a bystander like a third party ISP representative. If you were a third party, at a minimum you would have to be put on notice of the police need for the evidence, would probably have had to have had the police ask you for the evidence, and of course, would have to be aware that the destruction was imminent and have the power to prevent that destruction. If all those conditions were present, you might be guilty of obstruction of justice (there are precedents for inaction knowing of the consequences in the fact of a police question amounting to obstruction of justice). In situation 3, this kind of action pretty much amounts to being an accessory to some crime before the fact (unless someone was successfully deceived by a very elaborate story) and would likely make anyone involved part of a conspiracy to commit the crime that the destruction of the papers would facilitate. While the papers themselves might have been evidence of a crime or civil wrong, the destruction of the papers might itself be considered part of the crime, regardless of what could be established regarding the actual content of the papers. | The government must have reasonable suspicion to stop you and ask you questions. The government must have probable cause to arrest you. The government cannot question you if you have invoked your 5th Amendment rights The government must release you if you post bail which is set by a magistrate in some cases but can be posted without conferring with a magistrate for many minor offenses for which the amount is set in advance. Also, you can only be constitutionally held for a certain period of time without appearing before a court for an initial appearance at which you are charged and typically you have an attorney assigned for you if you cannot afford one. Generally speaking a lawyer for a defendant will either post bail on behalf of the client, or will seek to invoke the client's 5th Amendment right to silence and 6th Amendment right to counsel (including the right of a lawyer to visit his client in jail) making further detention much less useful, while challenging law enforcement to articulate probable cause for the arrest with the implication that a civil lawsuit and suppression of evidence and loss of credibility with the local judge could follow if they fail to do so. If the client is not brought before a court by the constitutional deadline (unusual, but not unheard of), the lawyer can bring this to the attention of the court and have the court demand that his client be brought before the court. Of course, strictly speaking the defense lawyer can't force the police to do anything. Instead, the defense lawyer persuades the police to do something based upon what a court is likely to do, or has already done, as a result of their conduct so far. Also, of course, it isn't always possible for a lawyer to get his client out of jail. If the police do have probable cause and the offense is not one for which bail is set in advance, it is not possible for the client to be released until bail is set by a judicial officer such as a magistrate and bail (if granted at all) is posted, which may be beyond the client's means in the case of a serious offense, particularly if the client is considered by the magistrate to be a flight risk. On TV and books, the person that the police have arrested is usually someone that the police had no probable cause to arrest but suspect of a crime anyway, and the police usually fold when called on the fact that they lack probable cause by the lawyer. Less commonly, on TV and in books, the lawyer facilitates the payment of bail on behalf of his client. | where does the prosecution occur? Prosecutions generally occur where a crime is committed. The area where a crime or other wrongdoing is committed is considered the proper "forum" for adjudicating the case. With respect to the law you cited, you should take note of the statutory limitations imposed upon the Attorney General in pursuing such a case (called a § 1119 prosecution). When considering the limitations, it is unlikely a trial of an American who killed an American in Canada would be tried in the United States. Those limitations begin with a prosecutor seeking written permission by the AG. This permission cannot be granted if the other country has already prosecuted the individual for the same conduct. Also, the AG can only give that permission if, after consulting the Secretary of State, he or she determines that the killing occurred in a jurisdiction where the suspect is "no longer present" and that the country is unable to "lawfully secure the person's return." and I'm wondering what that process actually looks like. This would be a consultation between Justice Department attorneys and the Assistant Secretary(ies) of State whose portfolio contains the foreign country in question. From the DOJ in particular, the Assistant AG for the Criminal Division is in charge of considering the above criteria and granting approvals. The Human Rights and Special Prosecutions Section handles these issues within the Criminal Division. Does the Attorney General have to petition the other government for permission to prosecute them in the home country? No. The statutory limitations listed above necessitate that the suspect has already left that country and part of the AG's determination must be that it is unlikely that country will be able to secure the person's return. That said, might that country petition the United States that it wants the suspect to be returned to stand trial there? Potentially. Does it make a difference if the key witnesses are also all Americans, therefore arguing that chances of conviction are more likely if tried within the U.S. where all participants reside and are available to testify? This is, of course, a general consideration when determining which jurisdiction should handle a matter. It isn't clear to what degree it comes into consideration in this type of prosecution. does anyone know any famous/well known examples of this happening? Famous/well-known? I can't be sure, but see, e.g., United States v White, 51 F. Supp. 2d 1008 (E.D. Cal. 1997), United States v. Nipper, 198 F. Supp. 2d 818 (W.D. La. 2002), United States v. Wharton, 320 F.3d 526 (5th Cir. 2003), and United States v. Brimager, 123 F.Supp.3d 1246 (S.D. Cal 2015). Interestingly, the statute gets substantial discussion and review in this Department of Justice White Paper entitled, Legality of a Lethal Operation by the Central Intelligene Agency Against a U.S. Citizen, in the context of whether the CIA could kill an American citizen in Yemen who has been reasonably determined to be a senior leader of al-Qaida. | Your kid is not in trouble; he's a minor. You're in trouble. A criminal case for the charges a prosecutor would bring, i.e. destruction of property (the data) or for a relevant cyber or computer crime (malware, etc.), and/or a civil case for damages due to the destruction of the data would both hinge on one point: the concept of intent. See intent - Wex Legal Information Institute and Civil Law vs. Criminal Law: The Differences | Rasmussen College. Did you knowingly intend to cause damage or data loss with the structure of the name? It's pretty clear you did. The structure of a name that can invoke an SQL command is not in any sense a standard name in spelling or format or punctuation. So how would you convince the jury or judge that you had no intent when you named your kid? The possible poor design of a data system that didn't sanitize inputs is no defense. Saying the door was unlocked so I assume the homeowners didn't care if I trashed their house will get you laughed into jail or on the hook for a stiff civil judgement. | Desuetude is the wrong concept. Desuetude relates to laws as a whole falling out of use; it doesn’t relate to individual cases. There is no question that the UK actively enforces their bail laws so they are not falling out of use. There is a statute of limitations that applies to non-major crimes within which the state must initiate prosecution. However, in this case the prosecution for bail violation has been initiated and Mr Assange is “on the run” so this is not relevant. Neither is the fact that the original charges that led to his arrest has been dropped- he is wanted for escaping lawful custody under English law for which the penalty is pretty stiff. I will also venture an opinion that the case against him is as open and shut as it comes. TL;DR When he dies. | The linked news story says that the journalist was detailed as a material witness. according to 18 USC § 3144 If it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person ... Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure. No specific time seems to be specified for which detention is allowed. What a court would consider "reasonable" would no doubt depend on the specific circumstances. |
Are there potential legal considerations in the U.S. when two people work from the same home and use the same internet connection? Consider the following scenario: Person A is employed by a large company and has the usual "everything you do while employed by us is owned by us" in their employment contract. Person B is self-employed and creates intellectual property (here let's assume software) in the natural course of their business. They both work from the same home and use a shared home internet connection (for which only one of them, let's assume person A, is the official account holder). Is there a risk that person A's employer can attempt to attach themselves to person B's business or the intellectual property created by person B's business? For example, if B uploads intellectual property to a third-party service using the same IP address that A uses, can A's employer use that fact as evidence that B's intellectual property might have been created by A or with A's involvement? How does the law look at this situation? | It is conceivable that A's employer would claim that the intellectual property was actually created by A in the course of their employment rather than B. That would be a question of fact for the lawsuit to determine. Realistically, assuming A and B both testify that B created the intellectual property with no input from A and A's employer had only the IP address as evidence, it is pretty unlikely that the fact finder would find that A created the intellectual property. A's employer would almost certainly need to provide some additional evidence that would show that the balance of probabilities favored the employer's position (i.e. A works at FedEx writing software for package logistics, B is a 12 year old kid with no formal computer science training, and the intellectual property in question involves the implementation of sophisticated graph traversal algorithms that would be common in package logistics applications). | The software being free and open source has no impact on whether it infringes any patents or violates any copyrights. Copyrights attach to fixed representations of creative work in a tangible medium (e.g., the actual code and graphical elements of the software in question). As long as you aren't copying the copyrighted work of someone else, you should be in the clear. So, if you write your own code from scratch, or rely on code that you're allowed to use (e.g., "free" software with a permissive license that allows it to be used freely), you should be fine. On the other hand, if you copy a chunk of code that you aren't allowed to use, and then change the variable names so that it's superficially different, you're likely violating someone's copyright. Patents are a much more difficult question. To determine whether you would infringe any patents, you would have to read the independent claims of every patent that might be related. If you perform all the steps of any one of those claims, then you are infringing that claim (and therefore, the patent in which it is found). Unfortunately, this is much easier said than done. First, it may be difficult to search for all the potentially relevant patents, and once you've found them, there may be far too many to read. Second, claims are written in a type of language that is specific to patents, and someone without experience in patent law may not understand them correctly. Finally, the terms in the claims may not take on their plain English meaning, but rather may have been defined by the language in the rest of that patent, so it's possible that you might incorrectly think you were in the clear based on a misunderstanding arising from that. All that said, it may be best to go ahead with implementing an idea and then waiting to see what happens. Chances are that the implementation will arguably infringe some patent in some way, no matter what's done. But chances are also high that there will never be any worrisome enforcement action taken against it by a patent owner, simply due to the difficulty and expense associated with enforcing patent rights. | Caution: I am not a lawyer. It depends on who is doing the collecting and storing. If it is done "by a natural person in the course of a purely personal or household activity", then it is exempt from the GDPR, as per Art. 2. Beware, however, that "purely personal activity" means that you do not share or publish them. In this court case, having the name or phone number of someone else on your "personal" website constitutes "processing of personal data wholly or partly by automatic means within the meaning of Article 3(1) of Directive 95/46". | The first question is whose law you are concerned with, since in principle you might have violated copyright law in any country, and might be sued under the laws of multiple countries. The US has a concept of "fair use" which is notoriously difficult to apply. When you are sued in the US, you can defend against the allegation by arguing certain things: telegraphically, this includes purpose and character of use, nature of the work, substantiality in relation to the whole, and effect on market. Plus there is a 5th factor to be considered, transformativeness. The court then weighs these factors to decide if the use is "fair". By reading existing case law on the topic (conveniently available from the US Copyright office) you might develop a fact-based opinion of the risk: you would be vastly better off hiring an attorney who specializes in US copyright law to do an analysis for you. Do not hire a programmer to give you legal advice (do not hire an attorney to debug code). You would "fail" on the test of substantiality in that you are copying a highly substantial portion of the original work(s). You would "win" on nature of use (research especially non-profit and commentary are the underlying purposes that drive fair use law). It's not clear how you would fare w.r.t. nature of the work, which is intended to distinguish the extremes "news report" and "literature and artistic work" where copying news is at the fair use end of the spectrum. It is not clear how you would fare on "effect on market", but probably not so badly: are you avoiding some licensing fee? Coupled with the tranformativeness consideration, you are most likely having no effect on the market, since the product that you will distribute is not the original work, but a scientific conclusion about the work. Germany has different laws, and this article would be relevant if you cared about Germany. There was a change in the law that expanded the analog of fair use pertaining to research use. That law allows 15 percent of a work to be reproduced, distributed and made available to the public for the purpose of non-commercial scientific research. That, b.t.w., does not refer to what you are planning to do (unless you also publish quotes); for personal scientific research you may reproduce up to 75 percent. Since this is a new law only a year old, you could become part of the cutting edge in testing the limits of the law. So the standard disclaimer applies: ask your attorney. But note section 60d of the law which legalized data mining, and is squarely on point: (1) In order to enable the automatic analysis of large numbers of works (source material) for scientific research, it shall be permissible to reproduce the source material, including automatically and systematically, in order to create, particularly by means of normalisation, structuring and categorisation, a corpus which can be analysed and to make the corpus available to the public for a specifically limited circle of persons for their joint scientific research, as well as to individual third persons for the purpose of monitoring the quality of scientific research. In such cases, the user may only pursue non-commercial purposes. (2) If database works are used pursuant to subsection (1), this shall constitute customary use in accordance with section 55a, first sentence. If insubstantial parts of databases are used pursuant to subsection (1), this shall be deemed consistent with the normal utilisation of the database and with the legitimate interests of the producer of the database within the meaning of section 87b (1), second sentence, and section 87e. (3) Once the research work has been completed, the corpus and the reproductions of the source material shall be deleted; they may no longer be made available to the public. It shall, however, be permissible to transmit the corpus and the reproductions of the source material to the institutions referred to in sections 60e and 60f for the purpose of long-term storage. | The employee must, during and after employment, without limitation in time, observe a duty of confidentiality regarding [...] the Company's internal affairs such as business plans, profitability, pricing, employees, methods, processes, routines, code and the like as well as other information that the Company typically wants to keep secret The pure information that the company had at some time a security problem with their product is internal knowledge you only gained through working there. By what is written here, you are indeed prohibited from speaking about it. If it were public knowledge, you could point to a press release and say "I did that, that was me fixing the problem". That would work. Because it doesn't share anything that isn't public anyway. But you cannot share things the company wants to keep secret. Finding out whether that contract is legally enforcable in your country and juristiction is the job of a real lawyer, but just as written, they are right. You signed a contract to not do that, not talk about it an certainly not publish it on the internet. So you should not do that, unless a good lawyer you trust tells you otherwise. That said, "I found a security flaw" is about as impressive as "I found a dollar on the floor". Maybe you can talk about your knowledge to prevent something like it happening. That says nothing about whether or not it happened in your old company, and for me as an employer it is much more valuable to have you on board with structured knowledge you can apply, than with your memories of being lucky once. | You premise is correct. The processor is someone that processes data on your behalf, and since the GDPR definition of processing is extremely broad, that is about every third party subcontractor that you use for data processing, including various cloud providers. I'm afraid it will soon become a huge mess with a gazillion contracts to sign. I disagree. Yes, the GDPR says that a contract between the controller and processor must exist, but Article 28 of the GDPR does not say anything about how the controller shall document these instructions. Basically, in cases like the one you describe where John Doe relies on a web agency for having a contact form on the web, there will be a standardized (by the web agency) service agreement between the John Doe (controller) and the web agency (processor). There is nothing stopping the parties from agreeing that this service agreement that John Doe accepted as part of the onboarding procedure is also the DPA as required by the GDPR. Putting something like the following in the service agreement would do it: The parties agree that this Service Agreement between You (controller) and Us (processor) set out Your complete and final instructions to Us in relation to the processing of Personal Data and that processing outside the scope of these instructions (if any) shall require prior written agreement between You and Us. You also agree that We may engage Sub-processors to process Personal Data on Your behalf. The Sub-processors currently engaged by Us and authorized by You are listed in Annex A. I think we will se a lot of amendments in service contracts as the GDPR gets better understood, but I don't really see a flood of DPAs in addition to these amended service contracts. | In general, in the US, Bob may do this. If the second company is a competitor of the first and Bob has access to confidential information from his first employer, then there could be an issue. Some employers require their employees, or some of them, to agree to "exclusive employment", that is to agree not to accept any other employment while employed by the company. If Bob has agreed to such a contract, he would be in breach of it if he took a second job and could be fired if his main employer learns of this. This is not a problem if Bob gets permission for the vacation work from his usual employer. In any case, Bob is not committing a crime, even if he is violating his contract. | With respect to the first question, discussing an idea in a non-encrypted email is not a publication that forfeits the right to patent an idea, even though it is not 100% secure. In the same way, talking about an idea for a patent with your patent lawyer in a secluded booth of a coffee shop in person does not constitute publication of the idea for this purpose, even if someone is secretly spying on you at the time. Since I am at the moment employed by a company, even though the idea originates from myself, it seems that I should quit my job first not to have my current company have any claim over my idea. It is possible that the contract makes even ideas that you come up with yourself while employed by the company the property of the company. If so, you are legally in the wrong and the idea belongs to the company. But, proving the reality that you are stealing the idea from the company is harder if there is nothing in writing. An email discussing an idea while you are employed would have to be disclosed in litigation with your employer over whether the patent applied for belongs to you or to your employer under an employment agreement. If you didn't put it in an email, it wouldn't exist to turn over in litigation. |
Why would Donald Trump be arrested? The New York Times writes: Donald J. Trump is preparing to walk into a Manhattan courtroom as both a defendant and a candidate, making final plans for his arrest on Tuesday [...]. Why would he be arrested? Is there a danger of flight? That seems implausible, given that he has arranged his appearance in front of the court out of his own volition, and because of his commercial, family and real estate ties to the country, and his plans to run for president again. Is there a danger of destroying evidence? In all reality, that would have happened by now, and most relevant searches have probably been conducted already. What other reasons would be there for an arrest? As a clarification: If I'm not mistaken, in Germany an indictment would simply be delivered by special registered mail, unless one of the above-mentioned dangers was present. In the U.S., a simple delivery of an indictment can take on an appearance which I can only perceive as unnecessarily disparaging. A defendant is presumed innocent unless proven guilty. To me this principle implies that defendants should be treated with respect like any other citizen. Putting them in humiliating situations, let alone using force like restraining them with handcuffs like in the case of Mr. Weisselberg contradicts this principle, unless there is reason to believe they would flee or otherwise obstruct the trial. | An accused would be arrested for the purposes of arraignment ("even a scheduled arrest is still an arrest"). That does not entail that the accused would be held in custody pending or during trial. Many commenters are of the view that Mr. Trump would be released under his own recognizance without bail. Reference: AP News. | In the Hicks case, police entered the premise, reasonably, pursuant a bullet having been fired from Hicks' apartment into a person in the apartment below. There were expensive stereo components in plain sight, which raised a reasonable suspicion. But that reasonable suspicion did not justify a further search, which police nevertheless conducted: they turned the stereo to get the serial numbers. Having phoned in the numbers and learning that the items were stolen, they then had probable cause for a seizure. That cause was, however, obtained via an illegal search. Suppose that the serial numbers had been visible from the front: then because they would have been in plain view and since the police were there for a reasonable search related to the shooting, then could have legally seized the stereo, since no additional search was required. There is no distinction between search and seizure w.r.t. 4th Amendment protection ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated"). Police could not confiscate the stereo without probable cause, nor could they confiscate cash, or any other thing, again, unless they had probable cause. And they could not search for evidence that would give them probable cause to take stuff. As SCOTUS said, regarding searches versus seizures, We have not elsewhere drawn a categorical distinction between the two insofar as concerns the degree of justification needed to establish the reasonableness of police action, and we see no reason for a distinction in the particular circumstances before us here. | I'm not aware of case law on point, other than Riley, which you mention (which doesn't mean that there isn't any - I'm not a specialist in this area). But, I think that the answer would be that you do have an expectation of privacy because the Riley holding that there was an expectation of privacy in a smart phone didn't really hinge in any meaningful way on the existence of a password. The linked summary of the Riley decision explains the court's reasoning as follows: Chief Justice John G. Roberts, Jr. wrote the opinion for the unanimous Court. The Court held that the warrantless search exception following an arrest exists for the purposes of protecting officer safety and preserving evidence, neither of which is at issue in the search of digital data. The digital data cannot be used as a weapon to harm an arresting officer, and police officers have the ability to preserve evidence while awaiting a warrant by disconnecting the phone from the network and placing the phone in a "Faraday bag." The Court characterized cell phones as minicomputers filled with massive amounts of private information, which distinguished them from the traditional items that can be seized from an arrestee's person, such as a wallet. The Court also held that information accessible via the phone but stored using "cloud computing" is not even "on the arrestee's person." Nonetheless, the Court held that some warrantless searches of cell phones might be permitted in an emergency: when the government's interests are so compelling that a search would be reasonable. Justice Samuel A. Alito, Jr. wrote an opinion concurring in part and concurring in the judgment in which he expressed doubt that the warrantless search exception following an arrest exists for the sole or primary purposes of protecting officer safety and preserving evidence. In light of the privacy interests at stake, however, he agreed that the majority's conclusion was the best solution. Justice Alito also suggested that the legislature enact laws that draw reasonable distinctions regarding when and what information within a phone can be reasonably searched following an arrest. The 4th Amendment expressly protects "papers" in your possession, which can't be password protected, and a smart phone file is analogous to a "paper" for 4th Amendment purposes. Your expectation of privacy in an unlocked smart phone flows from your exclusive possession of the phone as a piece of tangible personal property containing information, and not just from the password protection. In the same vein, I don't think that you would need to have a lock on a diary to have an expectation of privacy in it. This said, this is a cutting edge area of the law and password protection for a smart phone provides both more practical protection and potentially a less ambiguous cases of legal protection from search (since it brings you closer to the facts of Riley), and is therefore still a good idea. | There will be a local rule regarding what police have to do with a person in custody. Here are the rules for Seattle. The main relevant rule is that they must take reasonable steps to ensure the safety of the detainee. They must use seat belts, unless the vehicle does not have seat belts in the detainee area. Additionally, they are not to respond to routine calls while transporting a detainee, but they may may respond to a threat to life safety. Typically, high speed response indicates a threat and not a noisy dog complaint. There is no obligation to refrain from responding, nor is there a requirement to release detainees. I don't think there is a clear and bright line: it comes down to what an officer would (in light of department instructions) judge to be reasonable. The officer may be wrong and the department may be wrong in what is legally "reasonable", and this could come out as a result of lawsuits and Dept. of Justice investigations. You can file a complaint with the Civil Rights division of the DoJ, see here. | Generally you can't, since a basic Personality rights exist for eveyone that must be balanced with public interest. Allthough court proceedings are generally public, even the publication of when court sessions take place are very restrictive in the amount of information given out about what the session is about. How a court publishes this information seems to differ from court to court: public notice inside the court, press releases and sometimes an internet list. Indictments, generally, may not be published before the proceedings begin (§ 353d StGB). Proceedings before an Indictment Since an Indictment will only be accepted by a court if the chances are that it more likely succeed than fail, you may assume that the police or state attorneys will be even more restrictive about publicizing any information about any criminal complaint (or investigation). So the answer to your question, based on the reasons above is: no, there is no way to check this on google (from official sources) Sources: Öffentlichkeitsgrundsatz - Wikipedia (German) Article 6 of the European Convention on Human Rights - Wikipedia § 169 - Courts Constitution Act (Gerichtsverfassungsgesetz – GVG) Publicity Justiz-Ticker - Berlin.de § 353d StGB - Unlawful disclosure concerning judicial hearings | Double jeopardy does not bar him from facing federal charges, although U.S. Justice Department policy reserves such prosecutions for exceptional cases. Also, it depends to some extent upon whether there is a suitable federal crime that fits the conduct. | The principle of constitutional law is that in order to arrest you, the officer would need probable cause. Certain acts are in themselves violations of the order (being closer to another person that 6 feet, illegal sneezing). Walking in public does not per se constitute a violation. In order to briefly stop a person walking on the street (a "Terry stop"), the officer needs a reasonable suspicion that the person is in violation of the law. That means there has to be a reason, and a gut feeling does not count. An officer would not (legally) be able to stop every person they see walking down the street / driving, and demand an explanation of where they are going. If a person is just aimlessly wandering down the strees with friends (even if they are sufficiently separated), that could suffice to justify a stop, given the limited legal excuses for being outside your home. | The Secret Service is primarily concerned with protecting the people and information they oversee, not enforcing laws. They have the power to arrest someone for any unlawful conduct, but unless a drug user is presenting as a threat to a protectee, they are unlikely to be arrested by the Secret Service. More likely the Service would simply escort the person off the premises and refer the matter to the DC Metro Police to handle. Edit: Such a case would not be turned over to the US Capitol Police (as originally written) It would most likely be referred to the DC Metropolitan Police Department.Corrected my answer above. |
What's the notice after the fixed term agreement has expired Property is in England. I have tenant who has given me their notice, they had a fixed term agreement that expired a few months ago they were looking to buy a house so we agreed they could just let it expire. Rather than doing for another whole year. The contract throughout said we both had to give two months notice, I figured they still had to give me that now, even when it expired, they want one month. Who is right here? | First review the existing contract for anything that specifies what happens at the end of the term. I have seen ones that switch to month to month, others automatically extend by a whole year. In the United states the rental law is done at the state level or even more local than that. So I took a look at the UK policies. I focused on England. Guidance How to rent: the checklist for renting in England Updated 24 March 2023 At the end of the fixed period If you want to stay If you want to extend your tenancy after any initial fixed period, there are a number of important issues to consider. Check Shelter’s website for advice. Do you want to sign up to a new fixed term? If not, you will be on a ‘rolling periodic tenancy’. This means you carry on as before but with no fixed term. Your tenancy agreement should say how much notice you must give the landlord if you want to leave the property – one month’s notice is typical. Shelter publishes advice on how you can end your tenancy. I then went to the shelter website How to end a periodic tenancy: How much notice You can give your landlord a legal notice called a 'notice to quit' to end a rolling tenancy. This is a more formal option. Your tenancy will end legally if you follow the rules on how much notice and where to send it. A legal notice must: be in writing give the right amount of notice end on the correct day Here is an example of a notice to quit. A legal notice ends your tenancy and your right to live in your home. Joint tenancies will end for all tenants even if only one of you gives notice. You cannot withdraw a valid notice if you change your mind. Your landlord may agree to let you or other joint tenants stay on after a notice ends. Minimum notice periods You need to give at least: 1 month if your rent is due monthly 4 weeks if your rent is due weekly You can usually give the minimum notice to end your tenancy if your most recent agreement does not mention a longer notice period or if you've never had a written agreement. You may still need to give more than the minimum notice to make sure it ends on the right day. If your agreement says you must give more notice Your agreement might have a 'notice clause'. For example, if it says you have to give 2 months' notice. A notice clause might not apply after your fixed term has ended but sometimes it will. When will the longer notice apply? The longer notice period will only apply if either: you never had a fixed term agreement your agreement says it continues as a contractual periodic tenancy after the fixed term You can ignore a notice clause in your most recent agreement if both: your fixed term has ended your agreement does not say that it continues as a contractual periodic tenancy It looks like the notice period is a month, unless the contract says that the notice period is longer during the periodic tenancy. | I do not have anything official proving that I gave him the 2-months worth deposit What did you do, hand him a wad of cash? Pay by check, and put what it's for on the memo line. You've been there for nine months and there are several other people who can testify that you've been living there, so it would be difficult to claim that you aren't a renter. If you can show that the landlord is aware of your residence, that definitely helps even further, as does receiving mail there, registering to vote or with the DMV with that address, etc. Question 1 : what would be the best course of action to force the landlord to give me the requested lease agreement? You can't "force" someone to give you an agreement. That's kinda part of the definition of the word "agreement". If you find the conditions unacceptable, you can find another place to rent. When I asked the landlord about what he was planning to do regarding that, his answer was that it was not his business. It doesn't seem like it is. You could take the money you would have given to the other roommate, and give it to the power company instead. If paying for the utilities is part of the renters' responsibilities, and the renters are not paying for the utilities, then it's their choice to not have power. In California, landlords are required to make power available, but that just means that they can't interfere with you purchasing it from the power company, not that the landlord has to pay for it (if the landlord had agreed to pay for it, and isn't, then you can deduct the cost from the rent, but you can't simply withhold all rent, and your question indicates that the landlord hasn't agreed to pay for power anyway). Am I protected in any way, or can the landlord just come in my room and throw everything away, or worse just point me with a gun and force me to move? It would be difficult for the landlord to get rid of you, and would probably take several months to do legally. Performing an eviction himself, rather than getting the sheriff's department to do it, would expose him to serious charges, especially if a gun were used. Besides criminal charges, "If this or other unlawful methods, such as locking a tenant out or seizing his possessions before an eviction process has ended, are used to force a tenant to leave a property, a landlord may be subject to fees up to $100 per day of unlawful method use." http://homeguides.sfgate.com/tenants-rights-utility-billing-california-8073.html However, while the legal process will take a long time, at the end you will still be liable for back rent, and you will have an eviction on your record, which will make it harder to rent in the future. | Since the contingency is in the contract and has not been removed, if the purchase falls through due to not selling the existing property, they will get their earnest money back. That was the whole point of putting the contingency in the contract in the first place. | Not successfully It is not required that a person knows they are dealing with an agent of the principal rather than the principal directly - an agent speaks with the principal’s voice. Robert has consented to allow Elizabeth to act as his agent. It actually doesn’t matter if he consented before she acted or afterwards, he has agreed to be bound by Elizabeth’s actions. Rachel & Jared have agreed to enter the lease and indicated as much by signing the document. It doesn’t matter who signed it for the landlord or even if it was signed - leases have to be in writing but there is no common law rule that they need to be signed. | If two parties have a contract, where one party is required to do X in exchange for the other party doing Y, then the terms specified in that contract would determine what happens. You would have to see exactly what it says, especially if the other party has the option to not give you money. A contract might say "A shall at his option give B $5,000 by date X; if A elects not to make payment, notice must be given 60 days before X". Failing to give timely notice is thus breech of contract. However if the clause only says "A shall at his option give B $5,000 by date X", then there is no requirement for advance notice. And this assumes that there is a contract whereby both parties have some obligation to the other. A gift, on the other hand, carries no obligations on the giving party. There may be some social code to the effect that they should have told you by now, but failing to give advance notice is at most rude and certainly not legally actionable. | It is the terms of the lease that govern what you may and may not do, so if pets are not disallowed, they are allowed. You are not a party to the contract between the landlord and the agent, so whatever the landlord may have told the agent is technically irrelevant to you. However, this may be an indication that the landlord plans to change policy; it might also mean that the agent misunderstood something. That is where you stand legally. | The thing I was trying to zero in on was the work/refresh/renovation that needs to be done between tenants, and if they landlord can expect to do it while Tenant A is still paying (up to the date of the 'lease change'), but expecting that Tenant A has vacated before that date, or allows the work to be done while they are still occupying? The first tenant is not required to relinquish possession of the premises while the first lease is in force. The landlord's right of access to the apartment remains unchanged from those specified in the lease and in state landlord-tenant law. So basically the landlord has to wait until the first tenant leaves before doing most of the work. If the first tenant relinquishes possession of the premises before the end of the lease period, the landlord can keep charging rent until the premises has been re-let to a new tenant. But if the landlord has agreed to stop charging rent when the first tenant moves out, the landlord may be bound by that agreement. If the landlord has signed a second lease with a new tenant beginning immediately after the first tenant's mutually agreed early move-out date, then the landlord basically has no time available to fix up the apartment except with the consent of one tenant or the other. | At what point passed the original ETA is the contract still valid? There is no hard limit or deadline other than the one (if any) the contract itself provides. The contract remains valid regardless of a party's breach or non-performance. The remedies that would be available to you are in the form of rescinding the contract --without having to pay the cancellation fee--, or forcing the store to deliver the furniture soon. The longer the delay, the clearer your entitlement to either remedy. The manager's allegation about other customers is unavailing: Your description does not reflect that the contract or estimates are in terms of the delay that non-parties tolerated. Their contracts are totally unrelated to yours. The contracts might not even be comparable. The purpose of estimates is to give the counterparty some rough information that is known to likely influence his decision-making. Accordingly, a huge departure from the estimate supports the finding that the store deprived you of information that was material to your decision. The store's failure to timely inform you strikes the contract law tenet that you entered the contract knowingly. Furthermore, the store's deliberate act of specifying even the day of the month [mis-]led you to rule out that the delivery might actually take years. Typically furniture is purchased with the expectation of being able to start using it relatively soon, not years later. In addition to breach of contract, the store might also be in violation of statutes against unfair and misleading practices. |
could compelling someone to have sex with them with the threat of other harm be considered rape? IPC section 375 states this A man is said to commit “rape” if he—(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions-(1)Against her will. (2) Without her consent. (3) With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. (4) With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. (5) With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome Substance, she is unable to understand the nature and consequences of that to which she gives consent. (6) With or without her consent, when she is under eighteen years of age. (7) When she is unable to communicate consent. furthermore section 90 of IPC states Consent known to be given under fear or misconception.—A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person.—if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child.—unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age. injury in IPC has been defined as The word “injury” denotes any harm whatever illegally caused to any person, in body, mind, reputation or property. could compelling someone to perform sexual acts by threatening to evict someone be considered rape in India like in various other countries ? since it would fall under the definition of "injury" what about if it doesn't fall under this category ? | It seems to be violating IPC §375 Having sex is only the first half of the check. The other is the enumerated list 1-7 that describes pretty much circumstances of no consent. Among them are (1) Against her will. (2) Without her consent. (3) With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. There are two prongs here: You can argue that the consent wasn't properly given because it was given out of fear of coming injury (IPC §90), or it was given but for a fear of hurt coming from the eviction. In either case, the description demanded can be fulfilled: no-consent theory Being homeless directly leads to physical harm of the body, destruction or loss of property and reputation, and as such is an injury as defined in the IPC. As such, the threat of eviction is a threat of injury. Consent isn't present if the reason for a person to comply with a demand is fear of such an injury. As such, there is no consent as required by IPC §375 (2), and so it is rape. In the alternative, it is forced against the will, and thus violates IPC §375 (1). harm theory Being made homeless is directly harming any person in body and mind. Having obtained consent from a threat of harm to the person or close person, it is violating IPC §375 (3), and as a result is rape. | It is premature to judge the particular case because the facts are not all available. But we can address the general principles. The Model Penal Code 3.04(2)(a) sets out the general principles clearly. A person has the right to self-defense against unlawful force. But, the use of force is not justifiable to resist an arrest which the actor knows is being made by a peace officer, although the arrest is unlawful. But more specifically under (b) The use of deadly force is not justifiable under this Section unless the actor believes that such force is necessary to protect himself against death, serious bodily harm, kidnapping or sexual intercourse compelled by force or threat However, there is a further condition that force is not justifiable if the actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take Then finally, §3.05 says that this goes for people using force in defense of others. The short version is that the common law right to resist illegal arrest has been supplanted by a statutory requirement to submit to police authority, for example in California and New York. In Ewumi v. Georgia, defendant was illegally arrested and physically defended himself, which resulted in a battery charge and conviction. The battery charge was overturned because the arrest was illegal ab initio. If one resisting an authorized arrest, where an officer's force is likely to result in unjustifiable great bodily harm, the question is whether a reasonable person would find it necessary to resist in self-defense. It is unusual for the courts to find that to be the case. Minnesota law says that reasonable force may be used upon or toward the person of another without the other's consent when the following circumstances exist or the actor reasonably believes them to exist: (1) when used by a public officer or one assisting a public officer under the public officer's direction: (a) in effecting a lawful arrest Other sections say that a person who is not a public officer may use force to effect an arrest, or, "(3) when used by any person in resisting or aiding another to resist an offense against the person". Being arrested by the police is not an offense, and none of the other justifications for use of force apply. | An assault is carried out by a threat of bodily harm coupled with an apparent, present ability to cause the harm. There is no need for physical contact in an assault, all that is needed is the threat and the apparent, present ability. The drill sergeant was behaving in a threatening manner and had an apparent, present ability to cause harm; he was guilty of assault. Consensually engaging in a legal contact sport lacks the threat of bodily harm; that is to say that the bodily harm is a risk of the sport but it is not the object of it. Of course, an illegal sport where death or maiming is an inherent part would leave the participants open to assault (and battery) charges - you cannot agree to do illegal things. What is necessary to constitute the threat and the apparent means depends on the whole of the circumstances. A person throwing water when they had threatened the victim with acid is most certainly assault. Pointing a replica pistol at someone who doesn't know it is a replica constituted the threat and apparent means in one action. | Probably not new-south-wales s91Q of the Crimes Act 1900 NSW makes intentionally distributing intimate images a) without consent and b) knowing they did not consent or being reckless as to consent. The person in question has been told that intimate images sent to this destination will be shared. Their sending them after this is probably consent. | In the US, there are no laws against surgical circumcision with informed consent (and I don't know of any such laws in any other country). Parents are generally allowed to grant surrogate informed consent. There is no requirement that circumcision be carried out by a licensed physician or other approved practitioner. A person can be held civilly liable for damage done by the procedure. There are no criminal prohibitions in the cases that you describe, but there could be civil interventions. In particular, the court could override parental consent – for instance, if a parent ordered circumcision of their 17 year old. If some person does the circumcision without parental consent, that could be a crime. The key distinction is parental consent. The law grants parents the power to act on behalf of the child, under the premise that children do not have the capacity to act in their own best interest, and cannot reasonably be forced to bear the full consequences of their actions. These are long-standing pre-common law premises, which even predate the promulgation of English common law. "Best interest" is not a technical term requiring definition, but it is a factual matter that is very difficult to judge. Judges use solomonic wisdom to determine whether a surgery is in the best interest of a child when it is medically advantageous but psychologically detrimental. Just as an adult can consent to a circumcision thereby negating any accusation of assault, so too can a parent consent on behalf of their child. | §177 "Sexueller Übergriff; sexuelle Nötigung; Vergewaltigung" was recently changed. It now includes: (2) 3. der Täter ein Überraschungsmoment ausnutzt, this loosely translates to: "[in case] the perpetrator exploits a moment of surprise" Suddenly Chuck makes Bob a compliment and gropes Bob’s crotch. From your example it's clear that Chuck did overcome any possible resistance by surprising Bob. Bonus: This was also added in the same change (2) 1. der Täter ausnutzt, dass die Person nicht in der Lage ist, einen entgegenstehenden Willen zu bilden oder zu äußern, "[in case] the perpetrator exploits that the person is not able to make up or state their mind in an opposing way" Hence you can't have consensual sex with someone who's intoxicated (e.g. drunk with 1.1‰), not even when you're drunk yourself. In the latter case two individuals would technically rape each other. | It's impractical to say what the law of Guyana was in 1978, but we can substitute criminal law from 1998 and assume that there would be substantial overlap. Suicide is still a crime, as is murder and while many people committed suicide, many also died at at hands of others. Whether or not Jones committed any murders, he was an access before the fact, and can be treated as a principal (Title 3), and for conspiracy to commit a felony (murder). Under §96, conseling or aiding in suicide is a felony punishable by life imprisonment. The Heaven's Gate suicides took place in California, where suicide is not a crime. However, it is a felony to aid, advise, or encourage another to commit suicide. As a backup, following the model of Michelle Carter's conviction (appeal denied Mass Supreme Court, petition to SCOTUS, cert denied), he might be charged with involuntary manslaughter, although prosecutors would have had to think of that angle (encouraging suicide is not a crime in Massachussetts, thus the need to be creative in prosecution). | "The EU" is a lot of different jurisdictions, and laws vary between them. The following answer applies to the UK. A: Alice is guilty of making and possessing indecent images of a child. The fact that the child was herself is irrelevant, as are her current feelings on the subject. The "making" offence was committed when she was under 18, so for that she would be treated as a child, but the possession offence would be be charged at her current age. If Alice has made recent copies of the pictures, for instance by moving her files to another computer, then she is guilty of "making" as an adult. B: As with "A", but with increased penalties for publishing it. C: As with "B", except that the offence was committed when she was under 18. |
Does HIPAA protect against doctors giving prescriptions to pharmacists that you didn't approve? My doctor sent a prescription to a pharmacist his clinic had a relationship with. I didn't approve this transaction. Is it legal for him to share my prescription with a pharmacist I didn't approve? I gave him the name of the pharmacist I wanted to use, and they disregarded that. Is this a violation of HIPAA? | It is not a violation. The privacy rule requires that your personal medical information be kept "private", but your consent is not required for another health care provider to process PMI. For example, your consent is not required to send samples to a particular lab for analysis, your consent is not required for the doctor to consult with a specialist. The primary health care provider can disclose information to a business associate, who is bound by the same privacy rule, the result being that your PMI cannot be "generally published" because disclosures are only allowed to those who are bound by the privacy rule (or, to whom disclosure has been authorized by the patient, e.g. to a relative). | The section you quote as clearly saying a thing is not clearly saying the thing. However: you cannot pass on or resell any license keys seems to say a thing clearly. However, one could argue that it's the sharer of the account who is in the wrong, and not the person receiving and passing on the account. I'd say that that piece of the agreement, combined with this: must not... let other people get access to anything we've made in a way that is unfair or unreasonable says that, yes, they are out of bounds. | The FDA approved the device as requiring a prescription (not OTC). FDA regulations govern the manufacture or distribution of devices and drugs, not the consumption. An overview of FDA regulation is here. They say they they are "responsible for regulating firms who manufacture, repackage, relabel, and/or import medical devices sold in the United States". The entire pile of regulations (21 CFR) is here. There has to be an underlying statute that authorizes the FDA to impose restrictions: that would be in Title 21 of the US Code. The specific law regulating medical devices is 21 USC 360. Congress can easily pass laws that restrict what businesses do (a consequence of the Commerce Clause of the Constitution), but they (theoretically) have a more limited ability to restrict what an individual does. Since there is no federal law prohibiting the use of a prescription device, it is not a crime to possess or use such a device. | 34 CFR Subpart D covers this topic ("Under what conditions is prior consent not required to disclose information?"). This includes The disclosure is to other school officials, including teachers, within the agency or institution whom the agency or institution has determined to have legitimate educational interests so that raises the question of whether there is a legitimate educational interest. Additionally, the question is raised as to the status of an SRO (they are not teachers). Disclosure is allowed to A contractor, consultant, volunteer, or other party to whom an agency or institution has outsourced institutional services or functions may be considered a school official under this paragraph provided... the conditions being that the person Performs an institutional service or function for which the agency or institution would otherwise use employees; Is under the direct control of the agency or institution with respect to the use and maintenance of education records; and Is subject to the requirements of §99.33(a) governing the use and redisclosure of personally identifiable information from education records I would take this model memorandum as the most likely agreement, though your district may have a totally different memo where SROs are purely security guards. An SRO is to advance the program objective which include "Education of children regarding the role of laws, courts, and Police in society", which is the hook into "legitimate educational interest". This nothwitstanding the part that says that they "are police officers and not school teachers, school administrators, nor school counselors. The officers will assist teachers with classroom presentations on relative topics when requested and able" (there is no principle that only teachers, administrators, or counselors can have a legitimate educational interest). This model memo does not say anything that indicates that the conditions "Is under the direct control" and "Is subject to the requirements of §99.33(a)" are true, but those conditions could be satisfied external to the MOU. There are some additional exceptions of the "if required by law" type, such as a state law "adopted before November 19, 1974, if the allowed reporting or disclosure concerns the juvenile justice system and the system's ability to effectively serve the student whose records are released"; or, after that date, is "subject to the requirements of §99.38" which refers you to §99.31(a)(5)(i)(B). If that is confusing, here are the two self-referring sections: §99.38(a) If reporting or disclosure allowed by State statute concerns the juvenile justice system and the system's ability to effectively serve, prior to adjudication, the student whose records are released, an educational agency or institution may disclose education records under §99.31(a)(5)(i)(B). §99.31(a)(5)(i)(B). The disclosure is to State and local officials or authorities to whom this information is specifically...Allowed to be reported or disclosed pursuant to State statute adopted after November 19, 1974, subject to the requirements of §99.38. So state law is one possibility; "legitimate educational interest" is a remote possiblity. Massachussetts law does include governmental third party disclosures: 603 CMR 23.07(4)(c) A school may release information regarding a student upon receipt of a request from the Department of Social Services, a probation officer, a justice of any court, or the Department of Youth Services under the provisions of M.G.L. c. 119, sections 51B, 57, 69 and 69A respectively. That does not directly apply to local police, but it is possible that a police officer is operating as a probation officer or an agent of the Department of Youth Services. Under paragraph (e), A school may disclose information regarding a student to appropriate parties in connection with a health or safety emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals. This includes, but is not limited to, disclosures to the local police department Mass. law allows the possibility of treating a police officer as "authorized school personnel" if they are "providing services to the student under an agreement between the school committee and a service provider, and who are working directly with the student in an administrative, teaching counseling, and/or diagnostic capacity" – which is not completely out of the question but is a bit of a stretch (especially in the context of a blanket statement "we share records", not "we may share yours, if you get special counseling"). Tne law also says "Any such personnel who are not employed directly by the school committee shall have access only to the student record information that is required for them to perform their duties", so sharing of all records would not be allowed. | There is no requirement to name the parties to a contract I just bought a cup of coffee. I did not give my name to the other party to that contract and while I know the name of the shop, I do not actually know the legal entity I contracted with. Nevertheless, we have a binding contract and, for example, if that coffee gave me food poisoning, I would have legal recourse under that contract. Similarly, there is no difficulty signing a contract under a pseudonym - it still creates a legally binding relationship. The practical difficulties While there is no legal problem, there is an evidentiary one - if someone enters a contract and later disclaims doing so, how do you prove that they did? Or vice-versa, if someone alleges that it was you that entered the contract, how do you prove that you didn’t. What you need is some way of definitively but anonymously tying the person to the contract. I can think of lots - a fingerprint, DNA, public key cryptography, a trusted third-party intermediary to name just a few. This is essentially a technical problem rather than a legal one. | A problem with the question is that it uses the loaded term "victim". If you change the question to "Are there actions that you can perform involving another person, which are crimes even if the other person consents to participating in the action", then there are very many. Selling alcohol to a minor; selling heroin to anyone; selling sex in most US jurisdictions; selling firearms to a convicted felon. Also, for a physician to assist a person in suicide, in most states. Formerly in the US, various forms of sexual intercourse were acts that consent did not make legal. Whether or not the person is a "victim" in these cases is open to debate. In the case of physician-assisted suicide in Washington, the doctor is allowed to prescribe (oral) drugs that the person ingests: only a doctor is permitted to do this, both under the DWD Act and as a consequence that only a doctor can prescribe the drugs. There seems to be a belief that it is a crime to assist a person in committing suicide, which is probably correct if the assistance is shooting the person in the head, or in general directly causing the death (thus, "I give you permission to shoot me in the head" doesn't cut it). But from what I can tell, it is not generally against the law in Washington to help a person who commits suicide (e.g. supplying the means of self-dispatching). In some countries, suicide and helping with suicide is illegal, e.g. in Kenya Penal Code 225 says Any person who (a) procures another to kill himself; or (b) counsels another to kill himself and thereby induces him to do so; or (c) aids another in killing himself, is guilty of a felony and is liable to imprisonment for life. No exception is created if the person consents to being aided to kill himself. | http://www.healthinfoprivacybc.ca/confidentiality/when-can-and-cant-they-tell-others is a pretty good summary. Different rules apply to private practices than public clinics and hospitals. I will assume that the clinic on campus is private. This is a summary of the summary about who your information can be shared with: Health care professionals can share information within your "circle of care". Specifically, they are allowed to assume your consent to this but you can explicitly withdraw that consent. This would include doctors within the same practice. Admin staff can access your information for administrative purposes. Anyone you have authorised them to share it with e.g. relatives, friends etc. The Medical Services Plan for billing and admin If you are unable to drive If there is suspected of child abuse If you are wounded by a gun or a knife If you are a danger to others For your specific questions: I asked about it and they said it's confidential, but confidential to the clinic. Correct, unless you explicitly revoke this. the counselling department can share information with the doctors This is tricker, these people may be either within your "circle of care" or they may be part of the same organisation. Notwithstanding, councillors are not doctors and are governed by the everyday laws related to confidentiality i.e. information given in confidence is confidential and everything else isn't. If you are told the limits of the confidentiality i.e. they tell the doctor, then those are the limits unless you renegotiate them. he would know I only have one kidney? Well you said "the counselling department can share information with the doctors" and this would require the information going the other way i.e. the doctor sharing with the councillor. Even if this type of sharing was OK in general (and I'm not sure it is, see above); the information shared should only be what is required for the councillor to do their job - the number of kidneys you have is probably irrelevant to this. What laws apply to situations like this where confidential information in one entity (medical office) decides to share it without the consent of the patients to another entity (the counselling dept.)? Well, we are not sure there are 2 entities: legally there may only be 1 - the university. Anyway, the laws are the Personal Information Protection Act and common law (Smith v. Jones, [1999] 1 SCR 455) | There is no general prohibition against taking down material, even non-infringing material, which is posted by some person, but there is a risk to the service provider. Abstracting away from the specifics of github, a Provider has some agreement with the User whereby User rightfully makes Stuff available on Provider's site. Arbitrarily removing Stuff (in violation of the usage agreement) may cause damage to User, who may sue Provider, and Provider will avoid that if possible. DMCA protects Provider from copyright infringement suits by Victim, providing the proper DMCA procedure is followed, and it allows Provider to remove Stuff without fear of getting sued by User (17 USC 512(g)). This protection is not available if the takedown notice is not proper. (As a case in point, the entire series of Harry Potter books is still out there freely on the internet, because only the rights holder can demand a takedown, and the rights holder seems to not be concerned). |
Is there a law requiring a landlord to respond to rental agencies request for information in regards to previous tenants? I have left a rental and have been trying for over 3 months to gain housing through other rental agencies (first and second month I was still at the property). The last place I have applied for notified me that the previous landlord isn't responding to any form of communication (call,text or email). This in turn is stopping my packet from being processed and approved and in turn the places I apply to are taken by other people. This is effectively not allowing me to get a place to stay. I think he is doing this purposely because I refused to stay when he wanted me to take a $200 increase in rent. So I wonder if this is legal or not. And if it makes any difference at all I am a vet that was medically discharged. | Is there a law requiring a landlord to respond to rental agencies request for information in regards to previous tenants? No. There is no such law. | If I don't attend the hearing, can I get evicted? Yes. Never ignore a court hearing date. The Tribunal could otherwise impose an outcome without hearing your side of the story. If you ultimately paid the rent and the late fees, and the Tribunal didn't know that, you could be unjustly evicted if you don't present your side of the story. It could simply be a case, for example, where the landlord confused your non-payment with someone else's. But after the Tribunal rules, fixing that mistake is much more difficult than fixing it at a hearing. It could be that making two late payments that are cured later is still grounds for eviction under the lease, although I very much doubt it. In that case, it still pays to show up to make sure that the Tribunal has all of the facts favorable to you before it makes its decision. | You agreed to pay these fees when you applied for the apartment, so unless they explicitly say that one or both of these fees is waived in case you don't take the apartment (virtually no chance that they said such a thing), you owe that money. Your obligation is not contingent on them convincing you that the fee is just, so it doesn't matter that they won't explain the difference. However, if they said you can pay electronically, then you can pay electronically, since that too is part of the agreement. | Probably not, although it is impossible to say without reading the lease. Usually leases are monthly. That means you pay for the entire month or lease term regardless of how much or how little you use the property. It seems weird that the lease ends on the 21st, but if that is the case, then you are legally obligated to pay for that time interval. That said, if you want to drive a hard bargain, you could threaten to reoccupy the apartment and stay in it until the 21st which are legally entitled to do, unless he refunds you some money. You would have to be a pretty serious hard-ass to pull this off, or be prepared to go to court. One possible course of action is that you demand return of the key and say you changed your mind and will be staying in the apartment until the 21st. Make sure the conversation is recorded and that he knows the conversation is recorded, or have a witness. He will refuse. You can then sue him for denying you the use of your property. | Not successfully It is not required that a person knows they are dealing with an agent of the principal rather than the principal directly - an agent speaks with the principal’s voice. Robert has consented to allow Elizabeth to act as his agent. It actually doesn’t matter if he consented before she acted or afterwards, he has agreed to be bound by Elizabeth’s actions. Rachel & Jared have agreed to enter the lease and indicated as much by signing the document. It doesn’t matter who signed it for the landlord or even if it was signed - leases have to be in writing but there is no common law rule that they need to be signed. | You can always politely ask a person to leave, which could solve your problem. If that doesn't work, you will have to take legal action: you cannot change the locks or force him out (without the risk of a costly lawsuit). In Washington this would probably be the slower ejectment process, since you are not in a landlord-tenant relation. The actual process depends on the laws of your jurisdiction, though it is doable in any US jurisdiction. You probably have to hire an attorney to navigate the process, since an unlawful detainer action would likely be dismissed (that is, you have to file the correct action, not just some action that's in the ballpark). | Just think of the subtenant cum owner as two separate people with two separate roles. Tenant = T Subtenant = ST Old owner = OO New Owner = NO The rights of the tenant vis-avis the new owner will be informed by the lease and the local laws. Generally, if the sale happens in the middle of the existing lease, the NO is obligated by the terms, as is the T. NO cannot just kick T out, and T cannot just break the lease. The lease may say what could happen and local laws will apply. Likewise, ST has whatever contract with T that previously existed. Pretend NO and ST are different people. If T owes NO $1000 per month, and ST owes T $400 a month, that continues even though ST and NO are the same person. Depends on what kind of dispute. See above. All contracts continue, subject to whatever the lease with the original owner and the subtenancy agreement say abut modifying or breaking the lease and sublease. Local laws apply. Note, if the subtenancy was "off the books" or was done when not allowed by the original owner, and if it was not in a place that the local law says owners cannot deny subleasing, then tenant might not have any protection. ST, now that he is owner could just move out and stop paying. On the other hand, even if he is the owner, he cannot just say "I am the owner now, so I am moving back in for free" because the original lease gave the tenant use of the whole property. But ST could just drop out because T always owed OO, and now NO, the full rent. Do you mean if rather than sublease, they were both on the original lease? Interesting, but just imagine it as the obligations before the sale = the obligations after the sale. I don't know though. There are some tax implications for an owner occupied rental. | What the landlord is doing is forcing you to abide by the terms of your lease agreement. You most likely agreed to a 1 year lease on a signed document, which means you're pretty much screwed because if he wanted to, he could force you to fulfill the lease and pay him anyway. However, his remarks about when you can notify to terminate are wrong. See end of answer. About Terminating Your Lease Early However, there are a few loopholes you can exploit. The easiest one is to get him to increase your rent. Ask about it, tell him that you're considering staying but tell him you want to know if he's going to increase the rent by much. If he declares that he is going to increase the rent, perfect. Get him to send it to you in writing (which he is legally required to do). Just in case though, have him on speaker phone and record every conversation you have from now on without telling him. This is legal (see this answer) and is a powerful form of evidence, so exploit the hell out of it. If you can get him to tell you that he's going to increase your rent, then you can legally submit a notice to terminate tenancy on the grounds that you do not wish to pay the increase. In this case, the amount of notice that you have to give is capped to the day that the rent increase is to take place. If you try this, do everything you can to get it in writing. Don't feel proud of snaring him and immediately announce that you're leaving because of this as soon as he says it on the phone, because you're screwing yourself out of going through the proper channels to make sure you not only win, but you've made your case air tight. Also, feel free to let you landlord know that he owes you money. Landlords in Ontario have to repay you a capped interest rate on your last months' deposit every 12 months. This rate is decided annually and for 2015 is capped at 1.6%. If your landlord wants to be anal about the rules and stick the letter of the law to you, do it back. Becoming a pain your landlords ass is a great way to get them to either become more flexible, or make a mistake that will give you an out. Notice that if he does increase the rent, he can demand that you increase your last months deposit and force you to pay it. You could "accidently" make him aware of this right in a conversation where you are concerned about a rent increase immediately after letting him know that he owes you money for the interest. "I'm concerned about the rent increase because I have to increase my deposit by law too." This way, he'll hopefully have the thought "I can avoid having to give him any money by increasing his rent by the same interest rate, so he'll owe me what I owe him, therefore I owe nothing. I'm so smart!" Then he cheerfully gives you a notice to increase rent, at which time you invoke your right to terminate tenancy on short notice due to an increase in rent. Your Landlord Is Wrong All that aside, your landlord committed an illegal act when they refused your notice to terminate, because he's denying you your rights under the RTA. From the Residential Tenancies Act: A tenant may terminate a tenancy at the end of a period of the tenancy or at the end of the term of a tenancy for a fixed term by giving notice of termination to the landlord in accordance with section 44. 2006, c. 17, s. 47 The details adjust a little bit depending on your circumstances, but the conditions in section 44 are basically to ensure the following: You are giving 60 days notice. You are not giving 60 days notice where the termination date you provide is less than the previously agreed term, except in special cases like the one I mention about increased rent. There is nothing in section 44 that can be confused to mean that you must wait until you have passed the end of your term before you can decide to leave. I suspect your landlord is deliberately interpreting the use of wording like "may terminate at the end of" to imply you have to wait to give your notice. A notice of termination is not a termination. It is a notice that in the future, you are going to terminate. Let's remove the confusion by replacing the word "terminate" with "vacating the premises and not paying another cent". That should remove any ambiguity that could be abused. So frankly you can simply go straight to the board, file the appropriate form with them and just pack up and leave when you've reached the date specified in the notice to terminate. Your final month is covered by your deposit. File the form immediately, let them know about the conversation you had with your landlord, then go to your bank and cancel the cheques you've already written (except for your deposit cheque) and simply ignore the landlord, carrying on with your moving plans. You should ask the Board if this illegal act has any ramifications. Perhaps because he has done this, this gives you an immediate out or something else. Call the Board and tell them what happened and ask them. They have an obligation to inform you correctly. Sources: Landlord Tenant Board of Ontario FAQ Final Note The Board is there to serve you, free of charge. They have a duty, as it is their explicit directive, to assist you in all matters regarding being a tenant. Phone them, talk to them at length, demand assistance. They are to inform you of your rights and guide you on the appropriate action, forms and procedure to assist you in resolving any issues you have. Note that I wrote the whole bit about getting out of your lease early legally before I refreshed my memory on the fact that you can/should give your 60 days notice before the end of your lease period. That makes the case much simpler as a I note in my answer. I left the information I already wrote however because it could be applicable or at least be of some help to others. Also note that if you're saying that the landlord came to get more cheques on the basis of his lie that he used to refuse your attempt to legally leave, then you'll need to cancel those cheques. That costs money. That alone is enough of a case to take him before the Tribunal and force him to repay the cost of those cancelled cheques. You may even successfully claim further damages or the Tribunal may voluntarily award you money for the actions your landlord is deliberately taking to deprive you of your rights. Talk to the Board. |
Is Civil disobedience ever defensible in a court even if the laws are constitutional? Has civil disobedience ever successfully been a defence in a court of law despite the accused's acts being completely unlawful and the law being constitutional ? what leads to a successful civil disobedience defence ? | There is not a civil disobedience defense in a court of law. When you engage in civil disobedience, you accept the fact that you may face criminal sanctions and do so anyway out of your commitment to the cause. A judge could take your civil disobedience motive as an aggravating factor, a mitigating factor, or could ignore it, in the sentencing phase following a conviction for a crime motivated by civil disobedience. An executive branch official might also consider this motive when evaluating whether to pardon or commute the sentence of someone convicted of a crime intended as civil disobedience. | The Seventh Amendment's jury trial provision does not apply to the states. The Bill of Rights does not inherently restrain the states at all, merely the federal government. The Fourteenth Amendment does restrain the states; notably, it forbids a state from depriving any person of life, liberty, or property without due process of law. Courts have read into "of law" the added requirement that the law be compatible with the fundamental rights that are implicit in the concept of ordered liberty; this means that most stuff that would violate the Bill of Rights if done by the feds violates due process if done by the states. However, not all provisions of the Bill of Rights have been incorporated (i.e. applied to the states); the requirement for a jury in a civil trial is one of the few that hasn't been incorporated, because courts do not consider it a fundamental right (merely one protected in the federal courts). Now, many traffic tickets are actually misdemeanor offenses, and a jury-trial requirement for crimes is incorporated. However, even for federal offenses, the courts have generally found that the Constitution doesn't require jury trial for petty crimes (those with a maximum sentence under 6 months). | By my understanding you should not be held criminallly liable. In order to be held guilty of a crime the prosecution needs to show the elements of the crime are met. One of these elements is "mens rea" - ie guilty mind/intent. According to your question you lacked intent to commit the crime, so the prosecution can't prove it, so their case must fail. Note that in some places there are "crimes" which are strict liability - I'm ignoring these abominations here, as they are generally a grey area between criminal and civil law where freedom is not at stake and do not seem in the spirit of your question. | The law says don't drive an unsafe vehicle on the road. You disobeyed the law. There were methods of having your tyres fixed without driving on the road (e.g. taking the tyres to the mechanic in a different vehicle, calling a mobile mechanic etc.) so you have no defence of necessity. In all likelihood you will be convicted and penalised. You need legal advice. Whether it's fair or not is a philosophical consideration, not a legal one. | The courts do not supersede your constitutional rights, although you may believe that you have a constitutional right that isn't actually there. This article discusses the position that "due process forbids convicting an individual of a crime unless the government proves the elements of the charged offense beyond a reasonable doubt". This standard is actually not stated anywhere in the US Constitution, but it has been assumed as an implicit meaning of "due process". It sounds like you were charged with a crime, and there is most likely an applicable statute in your state that is analogous to RCW 26.50.110 in Washington. So you have the right to a trial and the prosecution would have the obligation to prove all of the elements of the crime beyond a reasonable doubt. It also appears that you did violate the applicable law and you were willing to plead guilty, as urged by your attorney. You are correct that you don't technically have to prove your innocence, but there is a practical problem that if the prosecution provides some weak evidence that you violated the law, then the jury might decide that your failure to refute the evidence means that there is no reasonable doubt. The problem is that there is a tendency for jurors to think that the defendant has to create a doubt. States differ somewhat in how they explain the burden of proof to jurors, and you might fare better in a state where the instruction is that "you must be firmly convinced". Since the attorney seems to have said that "the constitution doesn't apply to this", this is a puzzle. I would not assume (though it is possible) that the attorney was incompetent. It is possible that he was speaking of a non-criminal matter, and it is possible that you were talking at cross purposes. There is no legal situation where "the constitution doesn't apply to this", but perhaps "that constitutional limitation doesn't apply to this specific situation". Regardless of what the attorney said, your attorney doesn't violate your rights, even if he gives you bad advice. The actual court might, and then you would have a cause for an appeal. Similarly, if the district attorney reasonably believes that you are a danger to society and is prosecuting you, that is not a violation of your constitutional rights. An improper conviction would be a violation of those rights, although it might take an appeal to get the court to recognize that fact. | Criminal charges are filed and prosecuted by the government, on behalf of the public, and there is no requirement for approval or cooperation by the victim. As a policy matter, a DA may decide to not charge a person in case the victim is unwilling (though less so in cases of domestic violence), perhaps because of the widespread impression that the victim has to "press charges" (which indeed they would have to do in the case of private prosecution, which is no longer allowed in the US). The alleged victim's reddit exchanges on the topic are here. An uncooperative victim does not make a good witness, even if they are compelled to testify. The police statement that they cannot pursue an investigation should not be interpreted as a statement of law, it's probably a statement of policy and practicality. | The Louisiana Civil Code of 1870 (it was revised between 1868-1869, but enacted in 1870) applied specifically to civil cases (i.e. disputes between private parties); it's organized by topic area, and is there to keep people from having to comb through every law ever passed that has to do with civil cases. The Revised Statutes of 1870 gathered all the laws of "general character" into one place, for the same reason. The difference between the two was almost certainly an error. In general, there is one official version of the law; other versions are a convenience. The official version normally defaults to the individual laws passed by the legislature (which are organized by date, not by anything useful for finding relevant laws), but that can be changed by statute. In this case, the Revised Statutes contains section 3990, which says in so far as there may be any conflict between the provisions of this act and any provision of the said Revised Civil Code and Code of Practice, that said Code shall be held and taken as the law governing So, the Civil Code took precedence. Your revisions of 1876 and 1882 were not successor laws; rather, they were compilations of the Revised Statutes and Civil Code of 1870 with the amendments to those that had since been passed. The Revised Statutes from 1876 were really the Revised Statutes of 1870, modified by later laws (that didn't touch the divorce provisions). Likewise, the Civil Code from 1882 was really the Revised Civil Code of 1870, modified by later laws. The Civil Code of 1870 still took precedence over the Revised Statutes of 1870, so the divorce provisions of the Civil Code were authoritative. | There are venue restrictions where political speech is restricted, such as on military bases; content restrictions (transmitting classified information to the world); you cannot defraud by saying false things in order to get something, you cannot defame a person, you cannot speak obscenely (though it's hard to tell what counts as "obscenity"). You cannot appropriate other people's property in speaking (i.e. copyright law is a restriction on speech). The type of speech restrictions seem to pertain to speech and violence caused by such speech. A classic limitation is that you cannot speak "fighting words" (Chaplinsky v. New Hampshire 315 U.S. 568), which in 1942 meant calling someone a "damned racketeer" and "damned Fascist", which the court characterized as "inherently likely to provoke a violent reaction". The court subsequently refined its position on "provocative" speech. In Virginia v. Black 538 U.S. 343 a law against cross-burning was found to run afoul of the First Amendment as a restriction on political expression, but it would be fully consistent with The Constitution to outlaw "cross burning carried out with the intent to intimidate". This states may "prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm". The current position is that you cannot incite to the imminent use of force. In Brandenburg v. Ohio 395 U.S. 444, the court stated that the First Amendment does not "permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action". There are myriad laws against threats, for instance in Washington you may not "knowingly threaten(s) to cause bodily injury immediately or in the future to the person threatened or to any other person", and you can't do that ("knowingly cause another to believe that the offender will cause serious physical harm to the person or property of the other person") in Ohio either. You can't get away with threatening "to commit a crime which will result in death or great bodily injury to another person" in California. This class of restrictions on speech seems to be quite robust. You may not induce panic in Ohio, e.g. shout "fire" in a theater -- I don't know if any other state has such a law. |
Is it legal for a disability accomodation to inconvenience able-bodied people? About 10 people and I cycle to work and have to swipe a card on a post to get through the gates. Now, someone in a wheelchair has started working here too, and because the post's position was impossible for her to reach, the landlord has moved the sensor to make it easier for her to swipe her card, which is fixed to the side of her chair. It's now really awkward for us cyclists to reach, because it's down at nearly floor level. Just to be clear, no one has a problem with this at all, and all us cyclists are happy to oblige. The landlord is also going to install a second sensor high up for us. I just want to know if hypothetically, if making life easier for a disabled person makes a non-disabled person's life harder, is it legal? | Yes Being disabled is a protected class under the Equality Act. being a cyclist isn’t. The landlord has to make reasonable accomodations for her, he doesn’t have to for you. | In the UK, the Disability Discrimination Act 1995 includes provisions which are thought to apply to websites, although as far as I know there is no case law on the matter. If a website's use of JavaScript makes it inaccessible to users with some disability, it may fall foul of the DDA. However, there is no law specifically requiring JavaScript-free versions of web pages. | According to this press release, Toronto is "stepping up enforcement" of its leash by-law. You should call 311 to report violations: http://www.toronto.ca/311/knowledgebase/29/101000050429.html You can find more information here: http://www.toronto.ca/311/knowledgebase/47/101000050447.html http://www1.toronto.ca/wps/portal/contentonly?vgnextoid=b6c9dada600f0410VgnVCM10000071d60f89RCRD You can find a list of areas where dogs are permitted to be unleashed here: http://www1.toronto.ca/wps/portal/contentonly?vgnextoid=5a81dada600f0410VgnVCM10000071d60f89RCRD&vgnextchannel=b6c9dada600f0410VgnVCM10000071d60f89RCRD I note, however, that the press release says that "A dog is considered running at large if it is unleashed, off its owner's property and not under its owner's control." Reading this strictly, where all three conditions must be met, a dog owner is permitted to unleash a dog if it is still possible for the owner to control the dog. I don't know how the courts have interpreted this, but it could certainly be interpreted very widely. | Who in the fraternity would be prosecuted if this became an issue? A lot of people could be held liable for this, including people who are not even in the fraternity. Anyone who has knowledge of the machine or the fact that it was possible for minors to access alcohol through it could technically be held liable if a prosecutor wanted to make that case. Presumably the building is owned by someone else and just leased out to fraternity members, and they very well could be held liable for sale to minors also. Would the machine be safer if it just accepted cash (so that no electronic paper trail was created), with a big warning sign WINK WINK that anyone under the age of 21 was strictly prohibited from purchasing from it? No. Payment method is irrelevant here. There are a number of states that legally allow vending machines to sell alcohol, but vendors are required to verify the age of any person accessing them and ensure that those cards aren't being used by people not authorized. What you describe is an extremely relaxed environment where admittedly no one is attempting to verify identities. The "accepting cash" scenario is no different than a liquor store selling alcohol to anyone that comes in just because they're willing to pay with cash instead of a credit card. Sales to minors laws are not "as long as you warn them, you're safe" laws. They require vendors to actively check IDs and ensure that alcohol is not landing in the hands of minors. Accepting cash just to erase the evidence doesn't meet that burden. There are a lot of legal troubles with the situation that could get a lot of people charged with multiple offenses. That you have underage fraternity members living there suggests you should not have alcohol readily accessible in the house at all, as most state laws expressly forbid providing access to alcohol, not just serving or selling. Them being there provides access to it, even if it's just a case in the fridge with a note on it. Not to mention, you technically cannot sell alcohol, as I highly doubt your fraternity has a liquor license to be able to do so. There's a big difference between asking everyone to pitch in to buy the case versus actively selling individual cans through a vending machine. The vending machine itself is violating liquor laws in your state merely by existing. | I do not believe that there is any such law, although it is conceivable that the landlord is confused about what laws, generally called "non-discrimination laws" actually require. It may be wise policy for the landlord to treat everyone who owns a pet in the complex to pay pet rent, and it may be not worth the expense to the landlord to pay an attorney to revise his lease for your benefit to afford you the privilege of paying him less rent that he would have charged you otherwise. But the law does not actually require the landlord to do so. | There is no such law mandating this layout, nor is there any law permitting the defendant to demand a change to it. The arrangement seems most likely to have been driven by security concerns when courts began removing "the dock" and letting the defendant past the bar to sit with his attorneys. One court has also concluded that it was meant to assist the government "because it bears the burden of proof." It's of course impossible to prove a negative like this, but I'll note that Kenneth Lay's attorneys raised the issue in the Enron case, and they were unable to cite a single case saying that the defendant has the option to sit closer to the jury. If they couldn't find it, it probably doesn't exist. Meanwhile, the government was able to find several cases saying that the defendant does not have the right to demand a change, though it did not have any cases saying that the layout is mandatory. Instead, it described itself as "traditionally" having a right to the table. In that case, the judge ended up splitting the baby. Saying that there was "no law" to inform his decision, he sat the government next to the jury during its case, and it sat the defense next to the jury during its case. That was quite a bit more generous than the Seventh Circuit, which has rejected the jury-proximity argument as frivolous. So there are some cases addressing the issue, but I don't know of any case where a court has actually looked at the issue and given any real consideration to the due-process implications of the substantial empirical evidence suggesting that the party closest to the jury enjoys an advantage. | Federally, in places of public accommodation, discrimination based on race, color, religion, or national origin is prohibited by the Civil Rights Act of 1964. This was upheld in Heart of Atlanta Motel, Inc. v. United States 379 U.S. 241. As summarized in that case, "Public Accommodations" cover: any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence any restaurant, cafeteria . . . any motion picture house . . . any establishment . . . which is physically located within the premises of any establishment otherwise covered by this subsection, or . . . within the premises of which is physically located any such covered establishment . . . In Oregon, there are additional restrictions imposed by the Equality Act of 2007: Except as provided in subsection (2) of this section, all persons within the jurisdiction of this state are entitled to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, without any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is 18 years of age or older. In Oregon, a "place of public accommodation" includes: Any place or service offering to the public accommodations, advantages, facilities or privileges whether in the nature of goods, services, lodgings, amusements, transportation or otherwise. Other states may not have these extra prohibitions or different prohibitions. They may also have statutory exceptions for peoples' sincerely held religious beliefs. Why the legislature chose to specifically protect these classes is a policy question better asked on Politics.SE. | "Public place" is not a good description of a bar. "Public accommodation" would be a better description. But it isn't a public accommodation 24-7-365(366). It's only a public accommodation during the hours it is open to the public. Presumably the owner is free to close it to the public and rent it to some private group. During the rental period, it's up to the private group to decide who to admit. (The owner would have a veto for anyone who can't be admitted, for example, because the person isn't old enough to enter a bar.) The private group is not bound by the policies that prohibit unfair discrimination by public accommodations. |
What would be considered as a true threat? What is considered to be as a true threat? Let's say that there is a person who said to someone else "You deserve to die... Watch your back, I'm coming for you." which becomes an issue in court. On what grounds and argument would the Prosecution use to argue that this was a true threat and what grounds or argument would the defense argue that this was not a true threat? | The only meaningful discussion from the Supreme Court of what constitutes a "true threat" comes from Virginia v. Black, 538 U.S. 343, 359 (2003): “True threats” encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. ... The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats “protect[s] individuals from the fear of violence” and “from the disruption that fear engenders,” in addition to protecting people “from the possibility that the threatened violence will occur.” Ibid. Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death. A few other courts have elaborated further: A true threat is a communication that, when taken in context, “would have a reasonable tendency to create apprehension that its originator will act according to its tenor.” United States v. Martinez, 736 F.3d 981, 986 (11th Cir. 2013). A “true threat” is defined as a “statement that a reasonable recipient would have interpreted as a serious expression of an intent to harm or cause injury to another.” United States v. Mabie, 663 F.3d 322, 330 (8th Cir. 2011). As far as I know, the Ninth Circuit is the only circuit to conclude that a speaker must intend his communication to be threatening. Most courts find it sufficient to show only that the speaker intended to make the communication, and that a reasonable person would feel threatened by it. If your hypothetical were in court, the debate would be about the two questions above. Since it doesn't sound like there's any question that you meant to make the statement, most of the debate would focus on whether a reasonable person would feel threatened by your statement. The prosecution would ask the victim about the background of your relationship, what you said, what your demeanor was, and what the victim understood the statement to mean, and then the prosecutor would argue that in the context in which the statement was made, any reasonable person would fear being harmed. Your defense attorney would try to minimize the seriousness of the statement, demonstrate that you never followed through (though this may not be relevant), suggest that the statement wasn't serious and wasn't intended to be serious, and that no one could believe you honestly intended to hurt the victim. From there, would be up to the jury to decide who it believes. | If an adult had physically restrained the miscreant brat, they could be sued for / charged with battery (which does not mean "beating up", per Cal Penal 242, it is the "willful and unlawful use of force or violence upon the person of another". In either case, there is a defense that can be mounted, the "defense of others" defense, to the effect that the person had a reasonable belief that it was necessary to prevent physical harm to others. Which means, the jury would imagine themselves in that situation and guess how likely it is that someone might get hurt. Lofting 5 lb chess pieces at a 2 year old could poke out an eye, especially since they haven't learned to duck at that age – however, I question (as would an opposing attorney) the characterization "quite dangerous". At any rate, it would depend on the level of danger posed. There is also a "proportionality" requirement for the defense of others defense: "The defendant used no more force than was reasonably necessary to defend against that danger" (CalCrim instruction 3470). The battery might not have been necessary, since simply getting between the criminal and his victims could have been sufficient. As to whether there would actually be a lawsuit, that depends in part on the mind-set of the parents. Assuming that the level of force did not rise above simple bodily contact, it is unlikely that a jury would vote to convict / find liable, but certainly not impossible. If under those circumstances the results would not be in serious doubt, then it is unlikely that the person would be prosecuted (the prosecutor wouldn't bother with such a case). We may also assume that a decent attorney would persuade the offended parent-client that it is not a good use of their money to pursue he matter. Still, the risk is not negligible, since you don't know whether you'll have bad luck with the jury, or whether the child suffers from eggshell skull syndrome and then you would be is serious trouble. I don't think the fears are unrealistic, though they may be improbable, and they could be definitive for people who live in fear. | Does castle doctrine mean any guest at a house can kill uninvited guests? No. You have a completely faulty reading of the Castle doctrine (Wikipedia). The Castle doctrine allows a person... protections and immunities permitting one, in certain circumstances, to use force... And, those circumstances: Castle doctrines lessen the duty to retreat when an individual is assaulted within one's own home. Deadly force may either be justified... "when the actor reasonably fears imminent peril of death or serious bodily harm to him or herself or another"... While Castle doctrines may not provide civil immunity, such as from wrongful death suits, which have a much lower burden of proof. Aspects of the castle doctrine vary according to jurisdiction. | The General Rule In practice, the only time when self-defense against a police officer is legal is when you do not know and have no reasonable way that you could have known that the person attacking you is a police officer. (And arguably, a police officer acting in an official capacity in furtherance of his or her duties, rather than in a personal capacity as an individual.) For example, if the police do a no knock raid in the dark of night, and don't announce themselves, and you shoot police officers reasonably believing them to be home invasion burglars, you would not have criminal or civil liability for doing so. A similar valid self-defense claim might arise when someone has an objectively reasonable reason to think that someone claiming to be a police officer is really just a criminal impersonating a police officer, even if that belief is, in fact, mistaken. In almost all other circumstances, you need to submit to the officers, and you are pretty much required by law to bear the risk that excessive force by the officer will harm you. If you don't, you will probably be guilty of the crime of resisting arrest and will not be entitled to a self-defense defense. The fact that you are not actually guilty of a crime is irrelevant. This is often the case and police officers are not omniscient. If the officer lacked probable cause for an arrest (which there is often no way that the person being arrested or attacked can know at the time), the remedy is a civil rights suit after the fact, not self-defense. In theory, there might be other isolated circumstances where self-defense against a police officer is legal, but they involve fact patterns so quirky that they would almost never happen in real life, or would almost never be possible to prove in a manner that the courts would believe. Officer Liability For Harming Someone Legitimately Acting In Self Defense Whether the officers had civil liability to you if you were harmed by the officers while exercising your right to self-defense would depend upon their state of mind, even if you were rightfully using self-defense. For example, a U.S. Supreme Court case decided in January of 2017 (White v. Pauly) involved this fact pattern. In White v. Pauly an officer arrived late on the scene and had no reason to believe that the officers who arrived there before him and were being shot at by citizens in a house that they were approaching, lacked probable cause, or had not announced themselves. The court held that as a result, he had no civil liability to a citizen he shot, even if the person who the late arriving officer shot while that citizen was shooting back at the police officers on the scene was actually engaging in good faith self-defense. The citizen's self-defense in the case had a valid defense to criminal or civil liability for firing on the officers, because the citizen shooting back didn't actually know that the people approaching his house were police officers. But, because the late arriving officer reasonably believed under the circumstances that the citizen had no right to engage in self-defense, because he thought that the early arriving officers had probable cause and had announced themselves, the late arriving officer had no civil liability to the citizens he shot. | I suspect that you would not be convicted in the present case, because the jury would be sympathetic to the plight of the person being dragged out and unsympathetic to the behavior of the draggers. However, we should set aside the emotional elements of a jury trial and focus on legal principles. The basic question is whether a person has the right to use force to defend against an unlawful battery: "a person is privileged to use such force as reasonably appears necessary to defend him or herself against an apparent threat of unlawful and immediate violence from another". This right to defense also extends to defense of others. But it has to appear to be to unlawful, which is to say, you have to reasonably believe that the force used against the victim is unlawful. If a couple of thugs try to drag a person away, then an observer probably has a reasonable belief that this is an unlawful battery. But if a couple of police officers are observed dragging a person away (arresting him), apparently acting officially, the force used (up to a point) is apparently lawful and would not constitute battery of the victim. For defensive force against police to be lawful, the forced used by the police must be excessive. The outcome then depends on what a reasonable person would conclude (this is where the jury or judge makes a rather subjective decision). If a reasonable person would conclude that the assailants are acting lawfully in arresting the person, then a higher bar must be clear to justifiably use force in defense of others. Wearing a jacket that says "Police" favors the "appears lawful" side (though if you happened to know for a fact that the person wearing the jacket is not a police officer, then the "police exception" would not be applicable). In the relevant case, the facts point to the appearance of a lawful arrest (even if were to turn out to be judged unlawful). In the case that this is an apparent arrest, it would have to be the case that a reasonable person would find the force used to be excessive. Generally speaking, force used by officers is held to be reasonable, except in some cases where it is not. See for example the matter of Eric Garner, where the officers involved were not indicted. On the third hand, in this case, it might matter what the actual legal status of the "officers" is (they are not Chicago police). | I'll use Washington state as my source, but laws will be similar in other states. RCW 9A.76.020 outlaws obstructing a law enforcement officer, which this would be: it is a gross misdemeanor. In using lethal force, you would have committed first degree murder, under RCW 9A.32.030. There is a defense that can be used, per RCW 9A.16.050, that homicide is justified when: In the lawful defense of the slayer, or his or her husband, wife, parent, child, brother, or sister, or of any other person in his or her presence or company, when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer or to any such person, and there is imminent danger of such design being accomplished. Law enforcement officers have access to justifiable homicide defenses as well under 9A.16.040, for example (b) When necessarily used by a peace officer to overcome actual resistance to the execution of the legal process, mandate, or order of a court or officer, or in the discharge of a legal duty or (c) When necessarily used by a peace officer or person acting under the officer's command and in the officer's aid: (i) To arrest or apprehend a person who the officer reasonably believes has committed, has attempted to commit, is committing, or is attempting to commit a felony The outcome of the case would hinge in part on whether the officer's arrest and use of force was lawful. To take two extremes, if the guy on the ground had just killed a dozen people and was aiming to rack up another dozen kills, the officer's arrest would almost certainly be held to be legal and his degree of force justified. Your personal belief that the suspect was compliant and unarmed might be refuted by the facts. On the other hand, if the guy on the ground had slept with the officer's sister and the officer wanted to rid the world of this vermin, then the arrest and force would almost certainly be held to be not legal. It can be legal to use deadly force to resist unlawful arrest. See John Bad Elk v. United States, 177 U.S. 529, where the court held that if a party resisted arrest by an officer without warrant, and who had no right to arrest him, and if, in the course of that resistance, the officer was killed, the offence of the party resisting arrest would be reduced from what would have been murder, if the officer had had the right to arrest, to manslaughter The court also said where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction when the officer had the right to make the arrest from what it does if the officer had no such right. What might be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed. This ruling has been somewhat eroded, in US v. Simon: We recognize that law enforcement officers are frequently called on to make arrests without warrants and should not be held, so far as their personal security is concerned, to a nicety of distinctions between probable cause and lack of probable cause in differing situations of warrantless arrests. It is for this reason we believe that the force of John Bad Elk has been diminished The upshot of this is that (assuming no warrant), leeway is granted to officers in assessing probable cause (I'm not sure anybody really knows at a general conceptual level what constitutes "probable cause". The court seems to imply that the remote hearsay used as the basis for the arrest would not have been sufficient for a warrant, but it was "reasonable grounds" for believing accused had committed a crime). Your premise that the officer is about to shoot would have to be substantiated by some fact, such as a declaration "I'm gonna kill you". Otherwise, your belief that the officer was about to commit unjustified murder would itself be unjustified. With better fleshing out of the circumstances, you could manufacture a justified-homicide scenario. | In the United States, you can always choose to (try to) flee police. If the police subsequently assert that they tried to detain you, then they can choose to charge you with a number of crimes (which vary by jurisdiction). The assertion that you did not (or could not) in fact hear or perceive a lawful order to stop is a defense that you could raise in response to such charges. It is up to the triers of fact to determine whether, given the specifics of the case, they accept that defense. | This question and many related ones are analysed in detail by Eugene Volokh, in a long paper that is worth reading in its entirety if you are interested in the topic. The [Supreme] Court has offered “speech integral to [illegal] conduct” as one of the “well-defined and narrowly limited classes of speech” excluded from First Amendment protection. But if this exception is indeed to be well defined and narrowly limited, courts need to explain and cabin its scope. This Article — the first, to my knowledge, to consider the exception in depth — aims to help with that task. On threats, he says: Companies are generally barred from firing employees for voting for a union, and unions are generally barred from retaliating against employees for their speech. The Court therefore concluded that speech that threatens unlawful retaliation is itself unlawful. On blackmail, he says: [...] telling black citizens “stop shopping at white-owned stores or we’ll publicize your behavior to your neighbors and fellow church members” is similarly constitutionally protected. On the other hand, “vote for this civil rights bill or I’ll disclose that you cheated on your wife” is likely unprotected. In general the line where the First Amendment protections end and criminal speech begins is surprisingly vague. General advice to avoid self-incrimination by not answering questions from the police is clearly protected. Threatening a witness with violence is clearly not. In between are shades of grey. |
What specific documents describe a US Postmaster's roles, responsibilities and the extent of their powers? In the United States, and more specifically, New York State (if it makes any difference), which set of publicly-available, written document(s) describe the exact nature and extent of a US Postal Service Postmaster's powers, duties and responsibilities? | The organization of the Postal Service is set forth in Title 39 of the United States Code and the U.S. Postmaster General's role in the U.S. Postal Service is set forth at 39 U.S.C. § 203, although references to the U.S. Postmaster General are found throughout Title 39. Section 203 states: §203. Postmaster General; Deputy Postmaster General The chief executive officer of the Postal Service is the Postmaster General appointed under section 202(c) of this title. The alternate chief executive officer of the Postal Service is the Deputy Postmaster General appointed under section 202(d) of this title. The powers of the Postmaster General vis-a-vis the Board of Governors of the U.S. Postal Service are further clarified at 39 U.S.C. 402 which states: §402. Delegation of authority Except for those powers, duties, or obligations specifically vested in the Governors, as distinguished from the Board of Governors, the Board may delegate the authority vested in it to the Postmaster General under such terms, conditions, and limitations, including the power of redelegation, as it deems desirable. The Board may establish such committees of the Board, and delegate such powers to any committee, as the Board determines appropriate to carry out its functions and duties. Delegations to the Postmaster General or committees shall be consistent with other provisions of this title, shall not relieve the Board of full responsibility for the carrying out of its duties and functions, and shall be revocable by the Governors in their exclusive judgment. As a practical matter, the Board of Governors delegates responsibility for almost everything related to the operations of the U.S. Postal Service to the Postmaster General. Also, to be clear, the U.S. Postmaster General isn't the only person with the title "Postmaster" in the U.S. Postal Service and it isn't entirely clear which person with that title is being discussed in this question. The title "Postmaster" without elaboration or further detail refers to the U.S. Postal Service official who is the top manager in charge of a particular post office, which could have just one or two employees in an rural area, or might have hundreds of employees in a particular post office in someplace like New York City. It would be helpful to know why the person asking the question wants to know, in order to determine which position is really relevant and to make a more focused inquiry into that person's relevant duties, responsibilities, and authority. In U.S. law it is frequently the case that issues that come up frequently are well defined, but that other issues which come up only infrequently if ever, have answers that are ill-defined, vague, or indeterminate. A "top down" approach of trying to find governing documents that provide a general answer to all possible questions is rarely a fruitful one. Based upon a previous closed question, it looks like the main reason question is who has the authority to decide which houses get mail delivery and how decisions regarding this matter can be disputed. I don't know the answer to that question without research, but I suspect that the answer is a mix of regulations suggested by the Postmaster General and approved by the Board of Governors, in the Code of Federal Regulations, that are implemented by a local post office level postmaster for the region including that house or their regional supervisor, but I don't know that for a fact. In that question you stated: I assume that on the funding path, contacting our local NYS State Assembly member would be the first stop, but this is all new territory for me and I would appreciate any and all pointers as to how to go about finding available funding to support the new mail routes. But my real question here is: assuming the funding was even there, how do we (as a Village) put pressure on the US Postal Service (local and Regional) to deliver mail to our streets? Your assumption was wrong, but close. Since the U.S. Postal Service is part of the federal government, rather than part of the state government, your New York State Assemblyman has absolutely no input or clout on this issue at all. The people you would need to contact would be your local member of the House of Representatives, and secondarily the two U.S. Senators for New York State. Each elected official in the U.S. House and the U.S. Senate has staff members who are devoted to what is called "constituent service" which basically means helping ordinary people navigate the federal bureaucracy to meet their needs. If you were to contact one of these offices, you would be put in the touch with a constituent services staff member of that elected official who would help you figure out a solution to your problem, or would tell you that either as a matter of practical reality, or as a matter of that elected official's position on that particular issue, that the office won't be able to help you. Constituent services staff members contact the right person in the federal bureaucracy (in this case the right person in the U.S. Postal Service) to inquire, in what is known by employees within those federal government agencies as "a Congressional" which receives very high priority in the agency relative to ordinary citizen complaints and communications. Agencies that disregard Congressional inquiries routinely find their funding interrupted, appointments to their agency frozen, riders to legislation related to their agency specifically addressing the issue, and related follow up communications from the President at the request of a member of Congress when the President needs support from that member of Congress, none of which is something that the top officials in the agency want to deal with if it can be avoided in any way. Contacting your local U.S. House member's office should probably be your first step. | health care checks. Hotel check in. Employment? maybe. Background Checks? doesn't matter. It actually does matter, because there is sometimes a law governing the documents that may be shown for a given purpose. For example, the I-9 form, for verifying someone's eligibility to accept employment in the US, has a well defined lists of documents that an employer must accept, and the passport card is one of those documents. A similar situation exists for Transportation Security Administration screening of air passengers. On the other hand, laws concerning proof of age for buying various products will vary from state to state, and retailers may or may not be required to accept any particular document. In the case of alcohol sales in North Carolina, for example, there is a brochure that lists "acceptable forms of identification" on page 17 and explicitly says that "passports may be in the booklet or card form." But that does not seem to create a legal requirement for the retailer to accept passport cards, because page 19 outlines the retailer's right to refuse, saying among other things that "there is no legal recourse by a customer who you have refused a sale." US passport law (22 USC Chapter 4 and 22 CFR parts 51 and 53) doesn't have anything to say about the passport's or passport card's role as an identification document; it speaks only of the more specific role as a travel document. So the general answer to your question, appears to be no. There is no law generally requiring people to accept a passport card if they also accept passports or driver's licenses. But in most specific instances, there may be a general requirement such as "government-issued identification" that includes passport cards in addition to passports and driver's licenses, or there may be a list that explicitly includes passport cards along with driver's licenses and passports. | No, there is no general publicly accessible directory of lawsuits against private individuals, even if it concerns yourself. The complaint must identify you as the defendant indicating a ladungsfähige Anschrift, § 253 Ⅱ, Ⅳ, 130 ZPO. Commencing an action requires service of process, § 253 Ⅰ ZPO. I presume you are not a De-Mail user. So you will get a hardcopy. You may not know that, but such mail in Germany is usually sent in yellow envelopes. The mailman will carefully compare the mailbox label and in case of a match record the date and time of successful delivery on the envelope as well as a slip of paper returned to the sender, the court in this case. Now this will obviously fail in your case (unless the landlord maliciously attached a corresponding label to a mailbox). In a civil action the court “pretends” to be dumb regarding facts. The landlord must try to track you down. Evidently he knew your email address, so he had some contact details. If he was evil, the next option would be to ask the court for an öffentliche Zustellung, § 185 ZPO. If the court agreed, this means there will be, for instance, in the city hall a paper on a bulletin board “To the attention of Coala, last known address …: There is mail for you to pick up at my office.” Two weeks later the letter is automatically considered to be delivered.Some cities (example: Cologne, NRW) also publish these documents on the internet, but due to GDPR considerations delete them after a certain period now. If there was a lawsuit, there will have been a default judgment by now, i.e. you will have lost just by being a no‑show. However, you said you have never received the bill. This means the landlord must have produced false evidence, claim to have sent the bill and a subsequent warning notice, but there was none. But this is an entirely different issue. | S88 Closing roads and public places: ...totally or partially prohibit or restrict public access, with or without vehicles, to any road or public place... S91(1)(a) Power to give directions: direct any person to stop any activity that may cause or substantially contribute to an emergency That is what "this Act otherwise provides"; S6 that you cited only works "unless": Unless this Act otherwise provides, this Act does not limit, is not in substitution for, and does not affect the functions, duties, or powers of any person under the provisions of any enactment or any rule of law. Also, from another angle, "functions, duties, or powers" are not the same thing as "rights": the Act does not limit the former (unless provides otherwise), but nowhere does it say it does not limit the latter. | 34 CFR Subpart D covers this topic ("Under what conditions is prior consent not required to disclose information?"). This includes The disclosure is to other school officials, including teachers, within the agency or institution whom the agency or institution has determined to have legitimate educational interests so that raises the question of whether there is a legitimate educational interest. Additionally, the question is raised as to the status of an SRO (they are not teachers). Disclosure is allowed to A contractor, consultant, volunteer, or other party to whom an agency or institution has outsourced institutional services or functions may be considered a school official under this paragraph provided... the conditions being that the person Performs an institutional service or function for which the agency or institution would otherwise use employees; Is under the direct control of the agency or institution with respect to the use and maintenance of education records; and Is subject to the requirements of §99.33(a) governing the use and redisclosure of personally identifiable information from education records I would take this model memorandum as the most likely agreement, though your district may have a totally different memo where SROs are purely security guards. An SRO is to advance the program objective which include "Education of children regarding the role of laws, courts, and Police in society", which is the hook into "legitimate educational interest". This nothwitstanding the part that says that they "are police officers and not school teachers, school administrators, nor school counselors. The officers will assist teachers with classroom presentations on relative topics when requested and able" (there is no principle that only teachers, administrators, or counselors can have a legitimate educational interest). This model memo does not say anything that indicates that the conditions "Is under the direct control" and "Is subject to the requirements of §99.33(a)" are true, but those conditions could be satisfied external to the MOU. There are some additional exceptions of the "if required by law" type, such as a state law "adopted before November 19, 1974, if the allowed reporting or disclosure concerns the juvenile justice system and the system's ability to effectively serve the student whose records are released"; or, after that date, is "subject to the requirements of §99.38" which refers you to §99.31(a)(5)(i)(B). If that is confusing, here are the two self-referring sections: §99.38(a) If reporting or disclosure allowed by State statute concerns the juvenile justice system and the system's ability to effectively serve, prior to adjudication, the student whose records are released, an educational agency or institution may disclose education records under §99.31(a)(5)(i)(B). §99.31(a)(5)(i)(B). The disclosure is to State and local officials or authorities to whom this information is specifically...Allowed to be reported or disclosed pursuant to State statute adopted after November 19, 1974, subject to the requirements of §99.38. So state law is one possibility; "legitimate educational interest" is a remote possiblity. Massachussetts law does include governmental third party disclosures: 603 CMR 23.07(4)(c) A school may release information regarding a student upon receipt of a request from the Department of Social Services, a probation officer, a justice of any court, or the Department of Youth Services under the provisions of M.G.L. c. 119, sections 51B, 57, 69 and 69A respectively. That does not directly apply to local police, but it is possible that a police officer is operating as a probation officer or an agent of the Department of Youth Services. Under paragraph (e), A school may disclose information regarding a student to appropriate parties in connection with a health or safety emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals. This includes, but is not limited to, disclosures to the local police department Mass. law allows the possibility of treating a police officer as "authorized school personnel" if they are "providing services to the student under an agreement between the school committee and a service provider, and who are working directly with the student in an administrative, teaching counseling, and/or diagnostic capacity" – which is not completely out of the question but is a bit of a stretch (especially in the context of a blanket statement "we share records", not "we may share yours, if you get special counseling"). Tne law also says "Any such personnel who are not employed directly by the school committee shall have access only to the student record information that is required for them to perform their duties", so sharing of all records would not be allowed. | You have a couple major misconceptions about US law. First, crimes against the person are generally punished at the state level. States are not restricted to any sort of enumerated powers, and can pass any law they want to promote the general welfare unless there's a reason they can't. This is called the "general police power," and it lets them make everything from contract law to laws against murder. The federal government has to justify what gives it the authority to pass a law, and cities and counties have to justify their authority with state law or a state constitution, but a state government never has to preemptively justify why they have the authority to pass a law. States are especially not limited to powers listed in the federal constitution. The US Constitution sets up the federal government. State governments are set up by state constitutions, and derive their authority directly from the consent of the people of the state exercising their right to democratic self-determination. The only powers the US Constitution gives to states are minor technical powers involving state-federal relations (e.g. deciding how their presidential electors are appointed). But as I said, they aren't generally limited to any sort of enumerated powers by their state constitution either. Even the federal government isn't limited to "protecting rights listed in amendments." That's very little of what it does, in fact. Congress has powers listed (for the most part) in Article I and Article IV. It can pass laws banning murder in DC because Article I lets it exercise exclusive jurisdiction (meaning general police power) over DC and over federal enclaves. Article IV lets it exercise general police power over US territories, and pass laws regarding other federal property (I think it has a general police power there too, at least according to current law). The Necessary and Proper clause gives Congress the power to protect its own operations by, for instance, criminalizing the murder of a federal judge. Etc. Where there isn't a clear thing that lets the feds regulate something, they can probably get away with cramming "in or affecting interstate or foreign commerce" in the law, secure in the knowledge that practically everything affects interstate commerce. I'm not sure where you got the idea that laws are passed exclusively to enforce rights protected by the Constitution. They are not. They are not passed primarily for that purpose. Such laws do exist (e.g. deprivation of rights under color of law, which was passed pursuant to the 14th Amendment), but they're protecting you from government infringement of that right. | As I understand it, legal procedure in Common Law jurisdictions (e.g. the UK) is primarily based on evidence given by a person. Paperwork exists to verify that someone has not misremembered something, but even when you have paperwork you need to have someone testify that this is the right paperwork and it hasn't been forged. A piece of paper on its own means nothing. In practice of course the two sides will agree to accept routine matters rather than dragging lots of third parties (e.g. the post office employees) into court to no point. In the case of a letter where you need to prove it was received, the sender will testify that they sent the letter and that the copy they have introduced into evidence is a true copy. The proof of delivery merely shows that the item wasn't lost in the post. If one party testifies that they sent a letter and the other testifies that they merely received an empty envelope then someone is lying, which is a crime meriting further investigation. | US Laws are Free of Copyright Federal Works 17 USC 105 says: Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise. The phrase "work of the United States Government" has been interpreted to mean any work created by an officer or employee of the government in the course of his or her official duties. See 17 USC 101 for the official definition. This includes the text of (any and all) legislation. The official texts of all US laws (and federal regulations) are in the public domain, and no one may claim copyright on them. Strictly speaking, this is not a matter of "fair use". Fair use is an exception for limited uses of copyrighted content. The texts of these laws are not protected by copyright at all, and never have been. State Works In addition, while works of the various US states are not automatically in the public domain, the text of state laws, and I believe of the various state and local regulations are also in the public domain. This Wikipedia article says: Federal statutes are in the public domain and no copyright attaches to them. The same is true of court decisions. In State of Georgia vs Public Resource Org, Inc 11th Circuit No. 17-11589, (October 19, 2018) a three-judge panel of the US 11th Circuit Court of Appeals wrote: The general rule that legislative codifications are uncopyrightable derives from an understanding of the nature of law and the basic idea that the People, as the reservoir of all sovereignty, are the source of our law. For purposes of the Copyright Act, this means that the People are the constructive authors of those official legal promulgations of government that represent an exercise of sovereign authority. And because they are the authors, the People are the owners of these works, meaning that the works are intrinsically public domain material and, therefore, uncopyrightable. The Wikipedia article linked above quotes State of Georgia v. Harrison Co, 548 F.Supp 110, 114 (N.D. Ga 1982) as saying: The citizens are the authors of the law, and therefore its owners, regardless of who actually drafts the provisions, because the law derives its authority from the consent of the public, expressed through the democratic process. It also quotes a US copyright office publication as saying: As a matter of longstanding public policy, the U.S. Copyright Office will not register a government edict that has been issued by any state, local, or territorial government, including legislative enactments, judicial decisions, administrative rulings, public ordinances, or similar types of official legal materials. Likewise, the Office will not register a government edict issued by any foreign government or any translation prepared by a government employee acting within the course of his or her official duties. However, some states do attempt to claim copyright in electronic versions of their state codes. The 2015 LA Times story "Georgia claims that publishing its state laws for free online is 'terrorism'" reports on a recent infringement suit by the State of Georgia against Carl Malamud, who makes copies of the Georgia Annotated Code available for free online. The state claimed that the annotations are protected by copyright. In State of Georgia vs Public Resource Org, Inc 11th Circuit No. 17-11589, (October 19, 2018) a three-judge panel of the US 11th Circuit Court of Appeals found this claim to be without merit. After a thorough review of the law, and an examination of the annotations, we conclude that no valid copyright interest can be asserted in any part of the OCGA. ... In most states the “official” code is comprised of statutory text alone, and all agree that a state’s codification cannot be copyrighted because the authorship is ultimately attributable to the People. ... When a legislature enacts a law, or a court writes an opinion rendering an official interpretation of the law in a case or controversy, they are undisputedly speaking on behalf of the People, who are properly regarded as the author of the work. ... Because we conclude that no copyright can be held in the annotations, we have no occasion to address the parties’ other arguments regarding originality and fair use. Non-US Laws UK laws are protected under Crown Copyright, although permissive licenses for reproducing copies are easily available. Many other countries have similar provisions. The US, however, does not generally recognize such copyrights. The position of the US Copyright Office is that: [T]he Office will not register a government edict issued by any foreign government or any translation prepared by a government employee acting within the course of his or her official duties. Laws Incorporating Copyrighted Works by Reference Laws sometimes include by reference privately developed and copyrighted documents. For example, building codes and other safety codes may be developed by private groups, often national non-profit organizations, and incorporated into state laws by reference. This means that the text of the privately developed code is legally part of the law, and the law cannot be fully understood and complied with without reading the code. But the code is a copyrighted work, and the copyright holder may charge for copies. For example, this official Texas web page says: The Texas statutes, administrative rules, and local ordinances occasionally adopt, incorporate, or refer to technical codes published by independent organizations. These codes describe scientific and safety standards for structures and discuss specifications for fire safety, electrical systems, plumbing fixtures, construction practices, and many other topics. ... Codes are not reprinted within the statutes or the local ordinances themselves. They are "adopted by reference" or "incorporated by reference" and are usually available to review at the city clerk's office and at some public libraries. Please contact your local public library or your local government for assistance accessing codes not available online. Federal Copyrights However, this does not mean that anything "published by the US government" is in the public domain or is free of copyright. The Federal government often hires contractors to prepare various works. These works are protected by copyright. Frequently, the contracts will assign this copyright to the Federal government, which as 17 USC 105 says: ... is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise. Such works are therefore copyrighted, and the copyright holder is or may be the US Federal Government. They are protected in the same way and to the same degree as works of private authorship. Many works funded by the US Federal Government fall into this category. |
uk law, private prosecutions and the consent of the DPP In the UK, suppose you are bringing a private prosecution against some individuals. I believe that the person bringing the prosecution may terminate the case at any time. However, if the (DPP) charges are serious enough, you have to obtain the consent of the Director of Prosecutions. Does this mean, in such a case, the person bringing the prosecution gives up the right to terminate the case? Certainly (for something like say murder or perverting the course of justice) it would seem me to be odd that if the DPP gives consent for the case to go forward, then it must believe there is evidence for the crime. | The Crown Prosecution Service can always take over a private prosecution, regardless of whether consent was needed at an earlier stage. So they could always force it to proceed, or to stop (subject to whatever judicial control is in play for the stage of the proceedings). There are different ways of halting it depending on how far it has progressed and in which court, but the main point is that once the CPS has taken over, the original prosecutor is out of the picture. Where criminal proceedings are instituted in circumstances in which the Director is not under a duty to take over their conduct, he may nevertheless do so at any stage. (Prosecution of Offences Act 1985, s.6(2); "the Director" is the Director of Public Prosecutions, who heads the CPS) But by current policy, the act of seeking the DPP's consent will mean that the CPS will either take over the prosecution and run with it, or else refuse consent so that it doesn't go forward anyway: If an offence requires the DPP's consent to prosecute, the private prosecutor must seek that consent. If the proposed prosecution passes the Full Code Test, the CPS will take over the prosecution. Conversely, if the proposed prosecution fails the Test, the DPP's consent to prosecute will not be given. The "Full Code Test" is an assessment of whether there is enough evidence to provide a realistic prospect of conviction, and of whether prosecution would be in the public interest. This appears to be functionally the same policy for offences that need the DPP's consent (which can be delegated to other officials) or his personal consent (which can't). Some offences can only be prosecuted with the Attorney General's consent. The AG also has power to halt any prosecution, by entering a declaration of nolle prosequi, so could certainly terminate a prosecution to which she had previously consented. Additionally, I would expect that if someone sought the AG's consent for a private prosecution, she'd also refer it to the CPS to take over. If she didn't, but then wanted it to proceed after the original prosecutor had changed his mind, she could contact the CPS at that stage. | Whether or not one holds the opinion that the adult morally should be prosecuted, there are only two legal questions – can the adult be prosecuted, and must the adult be prosecuted? The easiest question to answer is the "must" one – prosecution by the government is always discretionary. It is settled law that the government can decline to prosecute a crime. The decision to prosecute is entirely political. It seems likely that the government can prosecute, if they conclude that the action was not legally justified under §418 of the Crimes Act 1900, as defense of another against a criminal assault. The government won't prosecute if they conclude that such a defense is likely to succeed. | It depends on the particular law in the particular jurisdiction in which you are charged. Most statute laws enumerate the defences that are available. In common law countries there is a general defence that (except in strict liability offences) the perpetrator must well ... perpetrate the criminal act; what you describe does not appear to meet that requirement. Other jurisdictions would not be so forgiving. | This is normal. It only seems imbalanced because only the prosecutor has been able to call witnesses so far. Under Minnesota Rule of Evidence 611: Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. At this point, only the prosecution has put on its witnesses, so it hasn't had an opportunity cross examine anyone, and the defense has been able to lead because it has only been able to cross examine. Were the prosecutor to call the defendant's wife or mother or something like that, he would probably be permitted to use leading questions. And when the defense puts on its case, the roles will reverse: the defense attorneys will have to use open-ended questioning for any witness he calls, and the prosecutor will be able to use leading questions. | Even before the police have any idea who did it, Bob is guilty of whatever wrong he did. However, if you want this to be a legal question and not a moral one, we should assume that you really want to know "Can Bob be convicted of murder, if the evidence proves that he did do it?". Yes, he can. See Morris v. State, 214 S.W.3d 159. The critical question was whether the defendant understood the charges (he did) and whether he could assist in his defense (he could). The desideratum of being able to assist in your own defense only goes so far. On the other hand, maybe no, per Wilson v. US. A government expert witness "testified that appellant had permanent retrograde amnesia and would not be able to aid in his own defense in terms of remembering any of the acts alleged in the indictment". The crucial difference seems to be whether one just has loss of memory, vs. loss of memory connected with some other mental disorder. [Addendum] Per Dusky v. United States 362 U.S. 402, competence to stand trial depends on whether the accused has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding -- and whether he has a rational as well as factual understanding of the proceedings against him. I am not aware of any exceptions e.g. whether this is not the case with strict liability crimes like statutory rape, and since it is generally held that "competency" is a requirement mandated by the due process clause, I don't think there could be an exception. | The governing law would be the Vienna Convention on Diplomatic Relations (1961). The relevant part is Article 29. Diplomats must not be liable to any form of arrest or detention. Diplomats are also immune from civil and criminal prosecution. Technically, it wasn't a US diplomat but a family member, but by Article 37 they have the same protection. The linked article suggests that her diplomatic immunity ended, but that's a bit of a non-issue. The host nation (the UK in this case) can declare anyone, diplomats or family to be persona non grata which indeed ends diplomatic immunity, but only after the person is allowed to leave the host nation. And when the act happened, the immunity was in place. Immunity cannot retroactively be withdrawn by the host nation. | I assume you mean to ask whether the guilt of the victim affects the validity of a crime-of-passion defence. canada In Canada, the only crime-of-passion type defence is provocation, today codified at s. 232 of the Criminal Code. Provocation is only relevant to a count of murder. If the person who committed what would otherwise be murder "did so in the heat of passion caused by sudden provocation," then the conviction is reduced to manslaughter. Current codified defence: victim must have done something that would be an indictable offence punishable by five or more years of imprisonment One of the statutory requirements for a successful provocation defence is that the victim must have conducted themselves in a way that "would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment." This is an objective element of the defence, not dependent on the perception of the accused. One court has found this limitation to the defence to be unconstitutional (R. v Simard, 2019 BCSC 531). However that court would still require that the "conduct of the victim [to be] of such a nature as to be sufficient to deprive an ordinary person of the power of self-control..." The common law and the previous codified defence also required provocative conduct by the victim Both the common law and the pre-2015 codification of the provcation defence required that the victim's provocative conduct be "of such a nature as to be sufficient to deprive an ordinary person of the power of self-control" (R. v. Cairney, 2013 SCC 55 at paragraphs 24-35). Burdens for establishing this defence The provocation defence is an "air of reality" defence (R. v. Cinous, 2002 SCC 29, paragraph 57). This means that there is an initial evidential burden on the accused. There must be evidence on the record that, if believed, could lead a reasonable properly instructed jury to acquit (or, in the case of provocation, to convict of manslaughter instead of murder). Once the accused meets this burden, then the defence is properly in play and will be successful unless the Crown disproves any element of the defence beyond a reasonable doubt. | It seems to not be allowed for a UK police to lie. The Police and Criminal Evidence Act 1984 makes it illegal for the police to mislead a suspect in order to make them believe that the police have evidence which they do not or that the evidence they have is stronger than it is, or that there is a possibility of leniency (for example in return for ‘cooperation’) where none exists. Realistically, there is no reason that a police officer might lie to a suspect during interview. Also see from innocenceproject.org: The law does not allow lying to suspects, under any circumstances. |
Why is the conviction rate in North America and Japan so high? What causes the conviction rates in North America and Japan to be so high? Are the cases usually strong where this happens? And what happens to weaker cases, do they result in an acquittal or do they generally not get cleared at all? https://en.wikipedia.org/wiki/Conviction_rate | Japan's justice system is sometimes called hostage justice In general, the Japanese justice system has a more than 99% conviction rate! In part, this is because the number of state attorneys is super low - on about half the population of the US, there were only 2000 State attorneys out of 35000 lawyers in Japan, whereas the USA has a five-to-six digit number of state/district/... attorneys and 1.5 million lawyers in total. Or in other words: each state-employed attorney is responsible for more than 10 times the people and the caseload they create, and lawyers are prohibitively expensive. This leads to a two-pronged result: on the one hand, only the best cases should be followed up on and brought to court. Depending on the statistics, about every other case (~50%) that the police investigators hand to the prosecution is not followed up on by the prosecution. The other result is, that the Japanese justice system relies heavily on confessions obtained from the defendants. As I elaborated when comparing the detention time without charges, the Japanese justice system is unlike almost any other modern justice system in the world in some regards, even though it is a civil law system and most of the same principles can be found. The Japanese prosecution can detain people for up to 23 days without bringing the case, you can't have your lawyer present when talking to the police, and by clever tactic, the prosecution can hold a person nigh-indefinitely without even filing a case. As a result, the prosecution can often get confessions, and with a confession, the actual court case can become super fast: charges are brought, the confession is read, a little extra evidence is presented, and to spare the victim a lengthy trial with the confession in the room, the judge comes down with a guilty verdict. This is compounded by how the rules of evidence are laid out: investigation and the court case are allowed to happen at the same time! As a result, the case of the prosecutor tends to become better the longer the case drags on, resulting in the defendant either settling or giving a (partial) confession to some of the charges just to get it over because lawyers are crazy expensive. By giving a confession, they throw themselves at the mercy of the court for a mild verdict. And it's very much stacked As shown above, the Japanese justice system is already stacked against the defendant. But it is even more stacked than what is shown up there. As ohwilke noted in excellent comments, I want to preserve them here: Also the vast majority of Japanese criminal cases are tried without lay judges, This is by the way a result of the Japanese legal system that was set up in the Meiji era being based on the Prussian branch of the german Civil Law school. That was one of the dominant systems of the Meiji era next to the French and Spanish schools of Civil Legal Systems - and after WW2 they did not swap to a Common Law system but stayed with their own take on this Prusso-German branch of the Civil Legal System. This means there are no juries like in the common law system, and since 2009 lay judges in japan are increasingly used, but not in every case. Those lay judges are very much akin to the Schöffen in Germany, being allowed to question the evidence and such - the German school is based on an inquisitorial system after all - but it is not used in every case. And the whole system is lived extremely differently from the inspiring Prussian system, such as this part of the comment shows: and from my experiences talking with several Japanese judges at length about the issue (back in the early 1990s, maybe it is different now), the institutional mindset is for judges to believe that all of the prosecution evidence is true and all of the defense evidence is lies unless the evidence to the contrary is overwhelming and unshakable. The level of judicial bias towards the prosecution is greater than in any other common law or civil law legal system, that is not in an authoritarian regime, in the world. This for example shows in the 23 days without charge. Technically, 23 days is not the initial time, but the police has 72 hours. But they can extend this time by 10 days with a judge's order, and then again by another 10 days on the same charge offered on the paperwork. According to a statistic, 99.8% of these requests are granted, meaning they are almost rubberstamped. Legally, people that are detained are not yet defendants, they are suspects and kept in Substitute Prisons which are located in police districts - which further helps to get confessions. And this plays directly into another factor that differentiates the Japanese system from other countries: There's a huge cultural factor, which is what makes the Japanese system so different from others. Additional factors are that police officers in Japan have much more authority to handle minor cases outside the court system and routinely do so, that a certain level of criminal conduct from organized crime and by authority figures is tolerated, that there is much less crime per capita in Japan than most places, and that Confucian values re deference to hierarchy and the Japanese specific high cultural obligation to apologize influences how Japanese people interact with the criminal justice system as defendants and as implementers of that system. This has its problems too: Because the prosecution is notoriously overworked, citizens with problems are often more reluctant to bring cases to their attention. Further, the shame culture works against not just the perpetrators, but also the victims and the people that report certain crimes - for example, a female police officer was groped on a train, and when she reported it, she became the target of shunning. Further reading & Research papers US Department of Justice: Toward a Balancing Approach: The Use of Apology in Japanese Society. US Department of Justice: Confession, Apology, Repentance and Settlement Out-of-Court in the Japanese Criminal Justice System -- is Japan a Model of Restortative Justice? (From Restorative Justice in Context: International Practice and Directions, P 173-196, 2003, Elmar G. M. Weitekamp and Hans-Jurgen Kerner, eds. -- See NCJ. Hiroshi Wagatsuma, Arthur Rosett: The Implications of Apology: Law and Culture in Japan and the United States, Law & Society Review, Vol. 20, No. 4 (1986), pp. 461-498 (38 pages). John O. Haley: Comment: The Implications of Apology, Law & Society Review, Vol. 20, No. 4 (1986), pp. 499-508 (9 pages). DAVID ALLEN CHIYOMI SUMIDA: Japanese tradition of apology, Western worry about admitting guilt can clash, (2002). HOSOI, YOKO AND HARUO NISHIMURA: The Role of Apology in the Japanese Criminal Justice System (1999). Ernils Larsson: Confucianism as a Religion in Japan’s Courts of Law (2022). Joseph I. Lieberman: CONFUCIUS'S LESSON TO LITIGANTS New York Times (1984). Lynn Berat: The Role of Conciliation in the Japanese Legal System American University International Law Review (1992). Nicholas Lassi: A Confucian Theory Of Crime, Dissertation, University of North Dakota (2018). Graham Mayeda: [Appreciate the Difference: The Role of Different Domestic Norms in Law and Development Reform; Lessons from China and Japan] (2006). Katrina Tran: How Japan How Japan’s Cultur s Cultural Norms Aff al Norms Affect Policing: A Side-By-Side olicing: A Side-By-Side Comparison with the United States Themis: Research Journal of Justice Studies and Forensic (2017). David Brooks: The Shame Culture New York Times (2016). podcast Dan Carlin: Hardcore History 62 – Supernova in the East I (2018). | The burden for proving claims in civil actions is "preponderance of evidence," i.e., merely that "more than 50% of the evidence favors a conclusion." However, the standard for conviction of any crime is "beyond a reasonable doubt." I.e., if the defense can raise reasonable doubt about one's guilt then the defendant should be acquitted. There is quite a bit of space between the two standards, which is compounded by prosecutorial discretion to even bring criminal charges. | While there are certainly statutory and procedural vehicles for sanctions, they are almost never requested or allowed when moved for, and are almost never imposed by judges. Something very severe needs to occur and not just your typical discovery violation ("speaking objections" during depositions, being late with responses, failure to cite to affidavits, affidavits citing conjecture rather than fact, et). It would have to be something quite serious....like misleading the court or directly failing to comply with a direct order or ruling on a motion. It is exceedingly rare. It is most seen in Federal Court. | See jury-nullification. I'm not a legal historian, so I can't say for sure what the laws on jury acquittals were at that time in that jurisdiction. However, when a jury has final discretion to acquit a defendant of a crime that's it: They can effectively ignore laws if they want to acquit someone. Such acquittals do not set a precedent or have any bearing outside of the trial in which they issue their verdict. | The DA decides The decision to prosecute a crime is vested in the district attorney (a.k.a. the prosecuting attorney, a public official in charge with bringing criminal cases in court). The DA can prosecute someone even if the victim doesn't press charges. It isn't the victim's call. It isn't law enforcement's call (although the DA will never get to make that decision if neither the victim nor law enforcement tell the DA about it). Critically, in U.S. law, unlike most countries with "civil law" legal system in Continental Europe and Latin America and much of Asia and Africa, prosecutors don't have a legal duty to prosecute all crimes of which they are aware. Civil law systems sometimes give vetoes over prosecutions of particular kinds of crimes to victims, but the general rule is that a prosecutor must press all charges that can be proved and that the prosecutor has resources sufficient to prosecute. In the U.S., the decision to bring charges or not is in the absolute discretion of the prosecutor. Also, unless the suspect and the DA reach an express agreement to permanently drop the charges, the DA or a successor to the DA can change their mind at any time until the statute of limitations on the crime expires. In the example in the question, a DA might initially decide not to bring charges, but then change her mind and bring the charge from this incident and a lot of other ones, when the DA learns that the suspect is operating a full fledged criminal enterprise and not just exercising bad judgment on an isolated basis. The DA usually honors a victim's wishes Usually, a DA and law enforcement will honor a victim's wishes, both because it is the harm to the victim that the DA is primarily vindicating, and because a case can be hard to prosecute without the victim's cooperation. Lots of people are pressing to have scarce law enforcement and DA resources applied to their problems. When someone voluntarily withdraws their request to have the DA and law enforcement use those resources, and no one personally involved is unhappy about that, this is normally seen as a win for everyone, and as a way of empowering victims. DAs and victims alike are also well aware that a criminal case can have very severe impacts on the life of the criminal defendant and the criminal defendant's family. Sometimes it can literally ruin a person's life. Other times it presents a major bump in the road to someone who was overall getting on the right track but had a lapse of judgment. When deciding whether to bring charges, DAs routinely weigh whether the harm done by breaking the law justifies the consequences of bringing a criminal case against someone from the point of view of society as a whole in the long run. In this example, the victim got moral vindication, an apology and admission, and presumably, his stuff back. The victim and law enforcement clearly saw this as justice enough if this is really just an isolated incident in a case involving a fairly minor misdemeanor offense. Exceptions to the general rule In the unusual case where a DA brings a criminal case notwithstanding the victim wanting to drop the charges a variety of things can motivate that. Sometimes, for example, in an intrafamily domestic violence or child abuse or elder abuse scenario, the DA may conclude that the victim is asking to drop charges under duress, or figurative "temporary insanity" due to being blinded by love in a way that the victim will later regret. In a variation on this fact pattern, fraud victims often have lawsuits for compensatory damages against fraudsters that will be harder to collect if the fraudster is in prison and may ask to drop charges for that reason. But the DA may want to bring the criminal fraud case anyway, because it is likely that the future income that will used to pay the current victims from their lawsuit will just come from some new fraud perpetrated against someone else. Sometimes, a DA presses charges because even though the victim doesn't care, the DA or law enforcement believes that the criminal is a high risk for being a repeat offender. This is especially true in cases where the collateral consequences of a conviction (e.g. disqualification from possessing a firearm) may help to prevent a future crime. Also, keep in mind that the DA is either an elected official, or a political appointee, or reports to someone who is. Usually, victims who get what they ask for from the DA build up political support. But, sometimes, a criminal case will be popular with the general public to prosecute even if the victim doesn't want that to happen. So, that is another reason that a DA might prosecute a case over the victim's objections. Conclusion Still, the basic thing to keep in mind is that prosecutors bringing charges over the objections of the victims are the rare exception, because prosecutors do care about what victims want, and to some extent see victims as proxies for being their clients, even though their true client is the government or the abstract concept of "the People." Also, victims who don't want to press charges are themselves pretty rare. | This Question Is Tricker Than It Seems One of the things about being a non-expert in a field is that it is very difficult to know in advance what is a hard question and what is an easy question. Some questions that seem like they should have simple, straight forward answers are actually very hard to answer. Some questions that seem like they should be very difficult and have involved tricky answers are actually very easy. Without an in depth understanding of the field, you just can't know in advance. It turns out that this particular question is a quite hard question to answer. So, rather than really providing a clear answer, I will explain what about this question makes it hard to answer in this answer. Even this incomplete and ultimately inconclusive answer will require far, far more words (2,078 to be exact), than were necessary to pose the question (94 words). Essentially, the core difficulty is that there are several different principles of law that apply to this fact pattern, each of which, individually have specific things that have to be proved to establish that some legal consequence will follow (which in turn are often themselves intrinsically indefinite), and each of which has exceptions that could also be proved if specific things happen. In part, this is because, while the fact pattern set forth is not freakishly unforeseeable, it is also not a fact pattern that was contemplated when any of the individual legal principles that are implicated were conceived. Likewise, the interaction of these different legal principles in one fact pattern wasn't contemplated and there is probably no one clear controlling case precedent on point that involved this fact pattern. What the law does in cases like these (which come up all the time in real life) is to break down each legal theory individually and analyze it, possibly spread over multiple distinct court cases in different courts in front of different judges. I'll try to unpack the issues (dispensing with U.K. legal terminology in some cases, since I'm only trying to provide a sense of why this is complicated and not to provide a definitive answer to how it is resolved under U.K. law). Possible Claims, Charges, and Defenses; Traffic, Civil, and Criminal It is a crime to threaten someone with weapon or in another way that puts someone at risk of imminent harm. Depending upon the weapon and other circumstances, mere possession of the weapon might be a crime in the U.K. Someone who has been threatened with weapon or in another way that puts them at risk of imminent harm can be a civil lawsuit for money damages against the person making the threat which was called "assault" in historical common law. Someone who has been threatened by another can seek a restraining order/protective order directing that person to stay away from them in the courts in a civil action. Hitting someone else's car is a traffic violation, unless a defense to the traffic violation is present and proven. Hitting someone else's car with a statutorily mandated level of intent is a crime, unless a justification for the crime is present and proven. The person whose car was hit could credibly argue that hitting the door was a mistake, not because the door was hit, but because the driver intended to kill them and missed, so an attempted homicide charge could raised in a criminal proceeding. The person whose car was hit could argue that there was an intend to put them in imminent risk of harm providing a basis for a civil lawsuit for money damages for common law assault. Someone whose car is hit by another car through negligence or recklessly or intentionally can bring one or more claims in a civil lawsuit against the person who car hit their car for money damages. The standard of care for negligence is established by how a reasonable person would act under the circumstances. Self-defense is a possible defense to traffic offenses, criminal charges and civil liability related to harming another's property if the conditions for self-defense apply, which include a risk of imminent harm to oneself, another, or one's property, and if the action taken in self-defense is reasonably proportional under the circumstances as evaluated by a reasonable person in response to the threat. But, if the response of the person making the threat with the weapon was as a result of actions in which the person threatened with the weapon was the true aggressor, then the privilege of self-defense would be forfeited. In real life, good attorneys for the parties could almost certainly solicit and call attention to additional facts not mentioned in the question that would further muddy the waters and raise additional claims, charges, and defenses to claims beyond the ten listed above. I could analyze each of these issues on the facts in depth as best I could with references to statutes and case law (under a body of law other than U.K. law anyway), which would take a few lengthy and heavily researched paragraphs each that would take a fair amount of time each to prepare, but I won't. A full analysis would help you weigh the odds a little better, and if I was a lawyer of a party in this situation, I would do that since every little edge counts in litigation and negotiations of settlements. But even if I did that, it would still leave a lot of uncertainty regarding the final resolution of these questions on the merits. Decision-Making Regarding Bringing Claims The traffic and criminal charges would be brought or not brought largely in the discretion of the Crown attorney or some other government official. It is most likely that a government official making that decision is doing so because the offense was referred to them by the police officer who responded to the scene, or a police officer who received an informal complaint (as opposed to a civil court filing) from one of the parties, or through a complaint delivered directly to the prosecuting authority by an alleged victim. A prosecutor doesn't have to bring claims just because someone asks them to, and doesn't have to bring all possible claims even if some are pursued. The parties themselves would decide whether or not to bring civil claims against each other. Whoever is sued first would make the decision in the context of knowing that they will be a party to a civil lawsuit whether or not they bring civil claims of their own. Possible Forums The traffic offense would probably be resolved in one court. The criminal charges against the person making the threats would be resolved in another court. The criminal charges against the person who hit the car door would be resolved probably in the same court but in a different case, possibly with a different judge. The civil claims would be resolved in yet another court, probably with a different judge, although probably in a single case with the first person to make it to court as the Plaintiff and the other party as a Defendant bringing counterclaims against the Plaintiff. The civil claims might also involve other parties (e.g. the owner of the vehicles in question if not identical to the persons driving the cars at the time of the incidents). Issue Preclusion Some final decisions on the merits in some cases would resolve the outcome of other cases as a matter of law, other final determinations in some cases would not be binding on the other cases as a matter of law because burdens of proof are different, or the legal issue evaluated is not identical, or because other rules (like a rule against a traffic court decision resulting in a binding determination on civil liability for negligence) would apply. The exact rules are rather arcane and there are quite a few permutations of how it come up, but it is important to be aware that these kinds of rules are out there, exist, and would have to be analyzed by the parties as a matter of litigation tactics. Even The "Legal Issues" Are Fact Intensive Inquiries Almost all of the legal theories implicated above involve broad legal standards in which a lot of the substantive question of what is or is not legal is delegated to the finder of fact in a manner that cannot be reviewed on appeal. For example, in a negligence case related to damage to an automobile, even if there is a videotape and there is 100% agreement on precisely what happened, whether that conduct constitutes "negligence" that breaches the duty of care owed by a reasonable person to the general public to protect them from harm, is legally considered a "question of fact" to be determined by a judge on a case by case basis, rather than a "question of law" which will always have the same outcome and is subject to review by an appellate court if the judge gets it wrong. A similar "reasonable person" standard which must be resolved with a highly fact intensive inquiry that could be resolved more than one way by two different judges or juries hearing precisely the same facts and finding the same witnesses and evidence to be credible in exactly the same way, with both upheld on appeal, applies to the self-defense legal theory. This self-defense issue could also conceivably, based upon the order in which cases were tried and their resolution, be resolved one way in a criminal case and a different way in a civil case between the parties. In the same vein, when a threat is imminent is a highly subjective determination that could be resolved in a "legally correct" way that is not subject to being overturned on appeal on precisely the same facts, with precisely the same determinations as to credibility and weight of the evidence, by two different judges or juries. Again, the substantive question of whether particular conduct is or is not illegal is a "question of fact" that can't be resolved in the absence of a trial on the merits in a particular case before a particular finder of fact. Bottom Line The facts provided in the question aren't sufficiently detailed to provide a definitely correct answer to this question. Indeed, the nature of the facts is such that even an perfectly detailed factual statement regarding what happened might not be enough to definitively determine who has civil liability to whom, and to determine what charges each defendant is guilty of. Different judges and jurors could reasonably come to different legally correct conclusions in a case like this one when faced with precisely the same facts and resolving all issues of credibility and the weight of the evidence in precisely the same way. This difficulty is compounded by the fact that the same facts would be analyzed with respect to different legal theory analysis in different forums by different people, when there is not, as a general rule (although there is in some cases) any mechanism for compelling those decisions to be made consistently on outcome determinative evaluations of the same facts regarding what was reasonable for the parties to do under the circumstances. The notion that a judge is just an umpire, and that every competent judge acting in good faith will always resolve a case presenting the same facts in the same way is a myth. This simply isn't true, even in the U.K. where the judiciary is (as a consequence of how the system for appointment and retention of judges is designed) not nearly as partisan and politicized as it is in the United States. The outcomes of even fairly simple cases in many cases, like the one in this question, are intrinsically and irreducibly uncertain in common law legal systems. The range of possible outcomes from a best case scenario to a worst case scenario, for each party in this fact pattern, is very wide. A desire to tame the myriad uncertainties involved for all parties, and the desire to avoid multiple time consuming and uncertain court proceedings arising out of the same incident, is one of the reasons that it is very common for civil lawsuits to settle out of court without a trial, and for criminal cases to be resolved by an agreement of the prosecution and the defense (sometimes reached even before charges are filed). | canada Or would I still be charged with his murder since it’s a different criminal instance? Yes, this is the correct intuition. Different instance/wrong; different basis for the charge; not precluded by double-jeopardy. In Canada, the term of art is autrefois convict. Section 609 of the Criminal Code lays out the standard for what it means for the count to be the same: the matter on which the accused was given in charge on the former trial is the same in whole or in part as that on which it is proposed to give him in charge The later charge for murdering Bob would be a wholly different circumstance or "wrong" or "delict" than the first conviction was based on. The later charge would not be precluded. | Are there any legal constraints on the number of times that a defendant can be retried following mistrials due to hung juries? No. A fairly recent case in Louisiana, for example, involved someone who had been tried perhaps half a dozen times resulting in a mix of hung juries and reversals of convictions on appeal. Or is the only practical constraint the willingness of the prosecutor to expend government resources (and perhaps political capital) pursuing a conviction? Yes. This is the only practical limitation. |
USA Public School Law. Is contract law somehow relevant? I am trying to understand the main, basic tenets of USA public vs. private school law. A question I have is whether or not the relationship between a student (/family) and a public school is somehow regulated by a contract, or under contract law. In the case it is, is there any interesting case discussed in terms of contract law (breach of a contract, remedies, ...)? Thanks for some pointer to relevant references. | As a terminological matter, I assume that by "public school" you mean state-operated K-12 systems. As a part of the government, public schools cannot be sued unless the state has allowed a suit on such grounds. Issues such as negligence and violation of rights are not litigated under contract-law theories. Because the public school is required to accept and teach students, parents are required to send their children to school, and parents are not obligated to pay anything, the opportunities for a contract to exist are highly limited. I set aside popular fake contracts between student and teacher which simply recites the teacher's pedagogical vows and expectations, since these are not enforceable contracts with new obligations and consideration. IEP (Individualized Education Program) "contracts" may be advertised as being agreements, but they are mandated (of the school) by law. The contract would be between the parent and the school because the student as a minor lacks capacity to form contracts. The parent cannot be "forced" into an enforceable contract since state law already mandates that the school must provide an education, and the parent never faces the "sign or no schooling" choice. Public schools can, of course, contract with a business, for example a pest-control service, or employment in general. The person whom they contract with can naturally be a parent of a child in the district, but the business contract is incidental to the person's being a parent. | The provisions of the credit card account agreement will be governed by Delaware law, except to the extent to North Carolina public policy overrides it. The provisions of the online services agreement will be governed by New York law, except to the extent to North Carolina public policy overrides it. The electronic communications agreement will be governed by the law of the place with the most significant connection to any disputed issues arising under it. It could also be considered to be an extension of the online services agreement rather than a separate agreement. UDAP is an acronym referring the state deceptive trade practices acts. The unfair act involves non-receipt of paperless billing statements. Even with this level of detail, I don't believe it is possible to know in advance which of the agreements is implicated and which state's laws will be held to apply (or if the differences between the laws of the candidate states is even material on the issue in question). These issues are decided on a case by case basis when there is a mishmash of facts and the outcomes are not terribly predictable. It also isn't obvious that there is a provision covering the conduct in question in any of the three potentially relevant states. The Delaware Deceptive Trade Practices Act doesn't appear to clearly apply to financial services at all. New York's application to financial services is quite narrow and subject to an exception for conduct in conformity with federal law. A failure to provide an invoice, without more, isn't necessarily a deceptive trade practice at all. All in all, there isn't a straightforward or easy answer to this question that can be reached from the information provided. | TOS are a contract. If you have a contract through the App, you have incorporated the TOS as a term of your contract. Contracts mean what they say they do, what you are thinking of as "basic contract law" is actual just an ordinary and customary term that people in your industry usually make a part of the contract, not contract law itself. | Yes, a contract implied in fact can supersede a written contract: if it both (1) arises after the parties have entered into their initial agreement and (2) if the subject matter of the agreement is not subject to the statutes of frauds (i.e. to a statutory requirement that agreements of this kind must always be in writing). A course of dealings before a written contract is signed if the contract states that it is the entire agreement of the parties, or appears from context to be the entire agreement of the parties, may not be considered pursuant to something known as the parole evidence rule (which is actually a rule of substantive law and not evidence, despite the name). An agreement that is required by statute to be modified in writing, something called a statute of frauds, might or might not be susceptible to being modified in this way. Sometimes, failure to comply with a statute of frauds is excused if the parties have partially performed the unwritten agreement, sometimes the statute is applied more strictly and cannot be overcome. Indeed, in Colorado, where I practice law most of the time, there is actually case law that specifically provides that even if a written contract states that it may only be modified in writing, that any oral or implied in fact agreement which could form a contract in the first place may supersede the written agreement. Proving that the course of dealings actually constituted an actual modification of the contractual obligation, may, in practice, be a challenging matter, however. In practice, there is probably a stronger argument on the available facts in the question, that there has been a waiver of the requirement for further provision of the service that may not be undone retroactively, but may be reasserted prospectively with fair notice to the other party, with the written contract remaining in force. The judge or jury would have to listen to the facts from the parties about their course of dealings and communications, about the nature of the "requirement", and about the pertinent terms of the written contract, and more generally, the larger context of the transaction, and then would decide which interpretation seemed closer to the truth, or if another explanation of what happened was more plausible. This dilemma and uncertainty is generically a problem any time that the parties course of dealings deviates significantly from a written instrument. These kinds of cases are never clear slam dunks for either party in the event of litigation. | There isn't enough information to give a reliable answer in the abstract. It is a hard concept for lots of people to understand, but words don't have the same meaning in every context. Law is not physics or chemistry. Words that mean one thing in a particular instrument or statute could mean another thing somewhere else, even if exactly the same words are used. More context would be helpful in determining a meaning. It could be a reference to a type of use, like AirBnB or other short term rentals (e.g. use as a hotel or hostel). It could also be a reference to a type of building that is not permanent such as tents, RVs, or other non-permanent structures intended for residential occupancy. Usually, a look at what the adjacent and framing language of the covenants say would clarify the intent as would some sense of the kind of structures built or intended to be built in the vicinity. It also isn't clear from context if the emphasis is on "residential" (e.g. in a property with a storage facility included), or on "temporary" (e.g. in a posh suburb). | Jurisdiction has not been provided, so I've written a general answer: Not necessarily; often, such provisions clauses will have their own expiration dates, for example "for five years after signing, X", with X still being valid after cancellation up to 5 years(so if you cancel after 3 years, X is still valid for 2 more years), or "for two years after cancellations, Y"(especially common with non-compete clauses) where the time-limit of Y starts when the contract is cancelled. Other clauses are meant to indeed be enforced forever, such as some non-disclosure, non-disparagement, or indemnity clauses. For example, an indemnity clause in a contract that prevents a party from suing the counter-party for work done under the contract would be pointless if it could be bypassed by a party terminating the agreement. There are lots of legal limits, based on the terms of the provision, and its nature, all governed by the contract law of the jurisdiction under which the contract was drafted under and/or is governed by (this is generally obvious, except for some cross-border contracts, which generally will have a declaration as to whose laws apply). It is not inherently abusive, but can certainly be abused. What is considered abusive often varies from jurisdiction to jurisdiction (not only on this issue, but on legal issues in general). It depends on the jurisdiction, and generally on the terms of the provision itself. If the court asked to enforce the terms of the agreement feels that the provision is illegal or abusive, they won't be enforced (and possibly the entire document declared null and void, depending on the central-ness of the illegal or abusive provision; some provisions specifically state that invaliding the provision doesn't invalidate the whole contract to try to prevent this). If they don't feel the provision is illegal or abusive, they will generally enforce it. | First, the clearly redundant phrase is “applicable laws” - these apply to everything. Second, some acts, particularly consumer protection or sale of goods acts imply provisions into a contract, create obligations that sit beside the contract or create equitable remedies. Many of these can be limited or excluded but this needs to be done explicitly. Third, in legal writing, clarity is preferred to brevity - nice if you can get both but if not, be clear rather than brief. Fourth, the contract is not the document. The document is a record of the “meeting of the minds” that formed the contract. In the event of a dispute, it may be useful to know that particular laws were specifically considered by the parties. Fifth, in legal writing, just as all writing, some people are better than others. | Adam cannot simply void the contract because he has a chance to publish in a more prestigious journal. What he can do depends on the provisions of he contract to which Adam agreed. It is likely, but far from certain, that the agreement permits Adam to cancel it under specified circumstances. If it does, and if those circumstances now apply, Adam can cancel and then submit the paper to the other journal. It is possible that the contract gives he first journal (J1)_ exclusive rights only for a limited period of time. If this is so, and if that time has passed, then Adam may submit the paper to the other journal (J2) without violating the agreement. It is likely, but not certain, that the agreement has provisions permitting the paper to be republished in another journal. If it does, than Adam may republish by complying with those provisions. They will probably include a requirement that the J@ publication include a notice similar to this: This paper was originally published in J1 in the {date} issue. J2 would have to be willing to include such a notice. The agreement between Adam and J1 will specify some things that J1 must do, as well as things that Adam must do. If J1 has failed to carry out a significant part of its obligations, for example if it never published Adam's paper, Adam may be able to rescind the agreement for materiel breach. Exactly what failures on J1's part allow this varies by jurisdiction. Adam would be wise to consult a lawyer before taking this step. Adam may request permission from J1 if none of these situations applies, and J1 may give permission. It would probably insist on a notice like the one mentioned above. But J1 does not have to grant such permission. If none of the situations above apply, and Adam cannot get (or does not ask for) permission from J1, then submitting the paper to J2 would probably violate Adam's agreement with J1. J1 could sue Adam, and perhaps J2 also. If the people running J2 know of this situation, they may well refuse Adam's paper. Adam may be able to write a new paper, based on the same research as his original paper, perhaps with more recent research added. That would not be covered by Adam's agreement with J1, and he could submit that to J2. |
Can one appeal a moot judgement? Coming on the heels of this question: It seems like the action for possession would be moot under these circumstances, prohibiting the court from entering judgment. Accordingly, we ordinarily dismiss as moot an appeal challenging an eviction when the tenant was removed from or otherwise vacated the premises. If a court enters a "moot" judgement, can one appeal the judgement on grounds that it should have never been entered in the first place? Is a moot judgement equivalent to saying that the court lacked jurisdiction to enter the judgement at all and therefore should be appealable? | Yes, you can appeal Deciding that an issue is moot is a matter of law. Issues of law are apealable. So, from your example, if the evidence showed that the tenant was still at the premises and, for whatever reason, the court misinterpreted or misunderstood that evidence, then there would clearly have been an appealable error of law in deciding that the issue was moot. However, if the evidence showed the tenant had left the premises and the court decided on that basis the case was moot they would have clearly been right and an appeal would fail. | Non-residential tenancies are subject to Fla. Stat Ch. 83 Part I. This is statutorily a tenancy at-will unless a contrary agreement is in writing signed by the lessor: the duration of the lease is yearly, quarterly, monthly, weekly as determined by the periodicity of rent payments. There are various legal conditions related to rent default and causes for removing tenants, also conditions about premises that are wholly untenantable. Unlike residential leases, there are not any special statutory conditions surrounding the landlords presentation of leases. Florida law contemplates and allows the possibility that there are no written documents, and for non-residential tenancies has very little to say about it (only pertaining to the distinction between at-will vs not at-will leases). Therefore, the matter follows the general rules for contractual disputes: whoever makes the best case for their claims wins. If Bob has a scanned copy, that is excellent proof. If Alice alleges and proves that the scanned copy was modified, that disposes of Bob's evidence. If Alice presents a copy of the contract that says otherwise (I do mean copy), then this anomaly has to be explained. Bob can claim that they tore up Alice's original and renegotiated the deal, but he needs to prove that claim. If Alice presents the original contract, Bob's story becomes much less plausible. There are millions of variants of what might happen: the point is, there is no requirement to present the original signed document to support a claim in a contractual dispute. | Acquittals in criminal jury trials cannot be appealed (at least in a way that affects the outcome, Colorado and a few other states allow criminal appeals by the prosecution solely for the purposes of clarifying the law prospectively). Interlocutory appeals (i.e. appeals before the case is over) by the prosecution are allowed for pre-trial rulings (e.g. suppression of evidence rulings in a pre-trial hearing), in criminal cases, but not for evidentiary rulings made in the midst of a jury trial (which is when jeopardy attaches for the purposes of the double jeopardy rule, which is what prevents acquittals from being retried). An error in a ruling on an admission or rejection of evidence at trial may be appealed by a convicted defendant if the alleged misapplication of the evidence rule was an abuse of discretion by the judge, and was not "harmless error" (i.e. if as part of all errors made in the case there is a reasonable probability that it changed the outcome that the jury reached). | If 'literally 300' attorneys declined your case on the basis of a phone call, without looking into the details, I can see three options: You are unable to communicate the nature of your case clearly. In this posting, you mentioned complaints against a company, a municipality, and a landlord, plus being evicted. Focus on explaining one case. If you think you 'know for a fact' that you have several big payouts coming, there is the first problem. Nobody knows what a jury will decide. An attorney might hesitate to work for a client who does not understand this. Litigation is always a risk. All your cases actually lack merit, a lawyer sees this and you do not. Not knowing the cases, I cannot tell. (And no, you should not explain them in detail on the web. If they do have merit, posting your strategy hurts the cases.) Your state has a vexatious litigant list and you are on it. That would not prevent an attorney from taking your case, but it might make them hesitate. | How far can one go to defend him/herself from an unreasonable search and seizures, in the same sense of one defending him/herself from an unlawful arrest? Not very far. Basically all you can do is try to talk the officer out of it. He thinks he sees evidence in sight... If the police officer reasonably believes that there is evidence of a crime in plain view, then the officer can proceed to seize the evidence. If the property owner tries to use force to prevent the seizure, then the officer can arrest the property owner. ... the property owner ... highly believes there is no possible way he could have seen the evidence from outside his property. It doesn't matter what the owner believes (unless the owner can somehow convince the officer before the search). What matters is what the court believes. But the owner cannot bring the matter to court before the officer enters the shed. If the officer insists on entering the shed and the owner can establish in court that the officer couldn't see the evidence and that there was no other lawful basis for a warrantless search or seizure, then the evidence will be inadmissible. The owner might also be able to prevail in a civil suit for the violation of civil rights, but the bar for such a suit is very high, so the likelihood is very small. | The case was appealed and taken by SCOTUS. Then the case became moot: Trump was banned from Twitter for life, his account permanently suspended. As the Twitter account that was the core of the controversy no longer exists, Trump can't block any accounts anymore. As Trump is disallowed from making a new account, it can't arise with the same fact pattern. Trump is no longer in office. The SCOTUS may only weigh in on live and active cases of controversy. The case is neither live nor active because it was rendered moot in January. As a result, it had to be dismissed, or the decision to take the case overturned. Speculating why they chose one over the other is moot, as there is no majority opinion given and the judges won't answer such questions. | I don't wish to gainsay or contradict a "professional adviser", especially as I have no idea on what information they based their suggestion. All I can do is direct the OP to the relevant extracts from the section headed "II ACCELERATED POSSESSION CLAIMS OF PROPERTY LET ON AN ASSURED SHORTHOLD TENANCY" in the Civil Procedure Rules, especially my emboldened text at the end of Rule 55.15. Rule 55.14 (1) A defendant who wishes to – (a) oppose the claim; or (b) seek a postponement of possession in accordance with rule 55.18, must file his defence within 14 days after service of the claim form. (2) The defence should be in the form set out in Practice Direction 55A. Rule 55.15 (1) On receipt of the defence the court will – (a) send a copy to the claimant; and (b) refer the claim and defence to a judge. (2) Where the period set out in rule 55.14 has expired without the defendant filing a defence – (a) the claimant may file a written request for an order for possession; and (b) the court will refer that request to a judge. (3) Where the defence is received after the period set out in rule 55.14 has expired but before a request is filed in accordance with paragraph (2), paragraph (1) will still apply. (4) Where – (a) the period set out in rule 55.14 has expired without the defendant filing a defence; and (b) the claimant has not made a request for an order for possession under paragraph (2) within 3 months after the expiry of the period set out in rule 55.14, the claim will be stayed. | The jury isn't told what the law allows. They are told to come up with a number and if it exceeds what the law allows, the judge modifies it in response to post-judgment motions. |
What crime am I comitting hot wiring a unprotected vehicle on a public area Consider the following: On a construction site on a public road without any sort of barrier a very old dumper is sitting. It has absolutely no protection like requring an rfid chip from the key to be nearby to get started. The starter solenoid is freely accessible without any modification to the machine. I am jump starting the motor by simply putting a screw driver to the solenoid contacts. The engine starts, I drive around for a couple of minutes. I then put some diesel back into the tank. What crime would I be charged with? And if the answer is not "none" what is the difference to lets say someone installing a slide on public property and me using it? | colorado You have committed aggravated motor vehicle theft in the second degree in violation of CRS 18-4-409(4): A person commits aggravated motor vehicle theft in the second degree if he or she knowingly obtains or exercises control over the motor vehicle of another without authorization or by threat or deception and if none of the aggravating factors in subsection (2) of this section are present. If the value of the vehicle was less than $2000, then this is a Class 1 misdemeanor and is punishable by 6 to 18 months imprisonment and/or a fine of $500 to $5000. Colorado's general theft statute (CRS 18-4-401) requires an additional element, that you intend to permanently deprive the rightful owner of the benefit of the property. So your slide example is not theft. However, they specifically excluded such a requirement from the motor vehicle theft statute. If you drove it on a public road, then you may have committed a few traffic violations as well: The vehicle's registration is presumably expired, so you violated CRS 42-3-121(1)(a). If any of its required safety equipment is not working (all lights and signals, brakes, mirrors, horn, seat belts, etc, as well as a muffler) then you are in violation of CRS 42-4-202(1). The vehicle is presumably not insured, so you violated 42-4-1409(2). You might think your own auto insurance policy covers you when you drive another vehicle, but if it's like my policy, this clause only applies when you drive it "with the express or implied permission of the owner, and within the scope of that permission". If the dump truck has a gross vehicle weight rating (GVWR) over 26,000 pounds, then it is a commercial motor vehicle under CRS 42-2-402(4)(a)(I), and under 42-2-404(1) you need a commercial driver's license to operate it, which you presumably don't have. (Note that GVWR is the maximum weight, including load, at which it is rated, whether or not it is currently loaded.) | It is legal for a property owner to have a vehicle towed off of their property, if the vehicle is there without permission. If you have a vehicle with expired tags, your permission to park there may have been rescinded as of that notice. It is possible that a parking spot is part of the lease, in which case it would be a breach of contract for them to have your car towed. However, even if it's in the lease, if it is required by law, or specifically mentioned in the lease (i.e. "must be registered"), it is legal to tow the car. The city claims the right to regulate vehicles even parked on private property: Abandoned vehicles are defined as: vehicles that do not bear a license plate, or on which the displayed license plate is invalid, unless said vehicle is stored within a completely enclosed building or unless it is stored on a bona fide sales lot or an automobile storage yard or automobile wrecking yard, which threaten or endanger public safety or welfare; create a blighting influence upon the neighborhood where the vehicle rests, or; is, or may reasonably become, infested, or inhabited by rodents, vermin or other animals, or may furnish a breeding place for rodents, vermin or other animals. Inoperable, when referring to a vehicle, means the vehicle is incapable of being immediately driven, moved, or pulled in the manner for which it is intended or designed. The specific underlying ordinance Sec. 518.203(1) says No person in charge or control of any property within the city whether as owner, tenant, occupant, lessee or otherwise, shall allow any junk or abandoned vehicle to remain on any private or public property within the city longer than 15 days; and no person shall leave any such vehicle on any property within the city for a longer time than 15 days; except that this article shall not apply to a vehicle on the premises of a business enterprise licensed and operated in a lawful place and manner, to repair vehicles with current license or those places where active restoration is taking place and both activities are taking place within a closed building. An abandoned vehicle is defined as a vehicle that does not bear a license plate, or if the displayed license plate is invalid, unless said vehicle is stored within a completely enclosed building or unless it is stored on a bona fide automobile sales lot or an automobile storage yard or automobile wrecking yard The ordinance does not apparently define "valid license plate", but from state law, we can determine that you affix a "validation sticker" to your "registration license plate", so without a current tag, the license is not valid. Apparently the practice of towing cars with expired tags is not isolated in Florida: an untagged vehicle may not be visible to the public. | California Vehicle Code 23100 asserts (a) Any person who throws any substance at a vehicle or any occupant thereof on a highway is guilty of a misdemeanor. (b) Any person who with intent to do great bodily injury maliciously and willfully throws or projects any rock, brick, bottle, metal or other missile, or projects any other substance capable of doing serious bodily harm at such vehicle or occupant thereof is guilty of a felony and upon conviction shall be punished by imprisonment in the state prison. So at the minimum this is a misdemeanor offense. It could be a felony if the accused is found to have intended to do great bodily injury, and that an egg (or whatever else they threw) was capable of it. The basic rationale for the law is that any such act creates a distraction to drivers at the minimum, which creates danger (if someone is surprised by the impact they may suddenly swerve and collide with other vehicles or property; their vision may be obscured and can no longer drive as safely as they should; etc.). And this is just for the literal offense of "throwing something at a vehicle (on a highway = public road)". The act may create other offenses, such as violating littering statutes and creating a hazard. And if the act does result in grave bodily harm or damages, even if they did not intend it, the offender can expect to be held to account and liable for that as well. If anyone dies, they'll be on the line for some form of murder/manslaughter charges, for example. | It is possible. If you say e.g. "On March 12 2021 I stole a steak from the grocery store at the corner of Smith St. and Wesson Ave.", that is a confession. It is voluntary and not coerced (you're not required to apply for the job), so it is admissible. It is extremely unlikely that there is any insulating provision in the job-application process ("information obtained via applying for this job will never be used against you in a court of law"). Whether or not you would actually be arrested and tried depends on the circumstances (basically, is it "worth it" to them to prosecute you). Also, what you say in the "explanation" box matters, so I gave you a clear confession to criminal culpability. Something like "I was at the store when some dude shot a lady" isn't a confession to committing a crime, it more satisfies the full-disclosure requirement. | The citation could be written but it should be easy to beat. In the circumstance that you describe the accused could just say the he was not driving his car at the time. If the prosecution is a sham with all your friends saying you all saw this thing, then the defendant can bring all of his friends to say that he was at some other place. The benefit to having a cop on the scene is that the cop will get ID and positive identification. The other thing the cop has is expert judgment. If a cop sees unsafe lane movement and writes a ticket, his testimony in court carries more weight than the "it was not unsafe!" testimony of the accused. Keep in mind, getting all of your witnesses to court on the same day, after continuances and other delays, and getting them all to tell the same story to overcome the presumption of innocence is no small feat. All that to say, it's easier with police as witness. There are two mechanisms which could get you where you want to go. Private prosecution and citizen's arrest. Private prosecutions are a part of history but not strictly unavailable at the state level. You could write up some charging documents to see if you can get your target indicted. Citizen's arrest is interesting because the rules are fairly unclear unless governed by a specific statute. There are two necessary parts of citizens arrest and the first part gets the attention. The first part is the detention (arrest). The crimes for which a citizen can legally detain a suspect are likely defined by state statute. The second part is giving testimony about the witnessed crime. Let's assume that you see a felony happen and watch the perp walk into a gas station bathroom. You are prepared to arrest, do part number one, and then call the cops, to do part number two. But while you wait for the guy to come out of the bathroom a cop walks up. You explain the felony and the cop goes into the bathroom and arrests the guy. It's purely witness testimony that led to the arrest and the indictment (physical evidence - let's say there is none) and even the trial. You successfully get the guy indicted and when you show up to testify you tell the story as you witnessed it. Now the accused gets to take the stand. When he takes the stand he says, "it was the other guy." When asked, "what other guy?" He says, "I was in the bathroom and a guy ran in and went into the stall. Then a cop came in and arrested me." Reasonable doubt right there. How much more if it's a bunch of friends ratting on some lone driver? Police need evidence. Prosecutors need evidence. Judges need evidence. | You always run some legal risk when you drive. As long as you are insured (you have a card in your hand) and you have permission to drive the car, it does not matter who owns the car. There is a difference between the legal minimum insurance coverage and actually adequate coverage, and since you are not getting separate insurance where control the insurance levels, you theoretically run some liability risk if you have an accident and the coverage is less than the damages (insurance doesn't mean that the other guy can't take you to court for the rest of the amount). There is also a risk that the housemate will do something crazy like cancel the insurance coverage for you, or report the car stolen, so you have to decide how worried you are about that possibility. | We need to assume that the stop was legal (not a high hurdle to clear), that is, there was some reason to stop you. Even so, following Utah v. Strieff, police don't actually have to have a reasonable suspicion to stop you and if in the course of an ID check they discover that you have a warrant out for your arrest, the arrest is still legal. So if the police stop you, RCW 46.61.020(1) says: It is unlawful for any person while operating or in charge of any vehicle to refuse when requested by a police officer to give his or her name and address and the name and address of the owner of such vehicle, or for such person to give a false name and address, and it is likewise unlawful for any such person to refuse or neglect to stop when signaled to stop by any police officer or to refuse upon demand of such police officer to produce his or her certificate of license registration of such vehicle, his or her insurance identification card, or his or her vehicle driver's license or to refuse to permit such officer to take any such license, card, or certificate for the purpose of examination thereof or to refuse to permit the examination of any equipment of such vehicle or the weighing of such vehicle or to refuse or neglect to produce the certificate of license registration of such vehicle, insurance card, or his or her vehicle driver's license when requested by any court. Any police officer shall on request produce evidence of his or her authorization as such. There is no law that says "you have to provide ID only if accused of a crime", or "police can pull you over only if you are suspected of a crime". Various traffic infractions will get you pulled over but are not crimes; random sobriety checks are legal. However, note that the requirement to provide ID applies to the operator. There is no law requiring citizens to carry identification papers (but there is a law requiring a vehicle operator to carry a specific form of ID). In some states there are "stop and identify" laws which allow police to demand ID from a person suspected of a crime, but Washington does not have such a law. | Unlikely, but specific facts may change this. The fact a vehicle gets the approval of the NHTSA and/or other safety regulatory bodies will probably mean that it already passed a certain level of safety testing, and any reasons for a recall will only surface after orders of magnitude greater sample and/or testing time. Therefore, the probability of causing endangering participants in traffic and others are negligible. The duty of notice will most likely be on the manufacturer under a product liability theory. Driving continuously and/or repeatedly after notice may be a different matter if it actually results in harming one — theoretically even oneself. |
Is NY State Constitution Article VI Section 18 (a) Unconstitutional? NY State Constitution Article VI Section 18 (a) reads: [Trial by jury; trial without jury; claims against state] §18. a. Trial by jury is guaranteed as provided in article one of this constitution. The legislature may provide that in any court of original jurisdiction a jury shall be composed of six or of twelve persons and may authorize any court which shall have jurisdiction over crimes and other violations of law, other than crimes prosecuted by indictment, to try such matters without a jury[...]. How in heavens is it possible for the legislature to authorize courts to try such matters without jury when the right to trial by jury is guaranteed in the VI Amendment of US Constitution? | The right to trial by jury in criminal cases by a unanimous jury of twelve under the 6th Amendment to the United States Constitution and some related rights are only partially incorporated to apply against states via the 14th Amendment due process clause. (The right to a jury trial in a civil case under the 7th Amendment to the United States Constitution does not apply to the states.) As noted, the federal right to a jury trial in a criminal case applies only when more than six months of imprisonment are a possible sentence pursuant to Baldwin v. New York. (Proceeding to trial without a jury on a more serious charge is allowed so long as the actual sentence does not exceed six months.) In practice, many states establish a right to a jury trial in many criminal cases where the U.S. Constitution does not require them. Juries are not required in juvenile delinquency proceedings. The 6th Amendment right to a criminal jury trial does not apply to military justice either, although there are constitutional limitations that do apply to military justice. There are no jury trials in the territorial courts of American Samoa which is beyond the scope of 6th Amendment protection. A unanimous jury of six or more jurors is allowed (at least in non-death penalty cases). A state jury does not have to be unanimous (at least in non-death penalty cases). Ten of twelve is constitutionally sufficient for a twelve person jury; nine of twelve is not sufficient constitutionally. In practice, only one or two states permit non-unanimous jury verdicts. [Since this post was originally written, the precent implicitly referenced here was overturned and all criminal case juries must be unanimous. New York State, however, never allowed non-unanimous jury trials anyway.] There is not a federal constitutional right to waive a jury trial, although this exists in some states by state constitution or other forms of state law. The right to have felony charges screened by a grand jury also does not apply to the states. About half of U.S. states require grand juries to screen felony charges, mostly in the eastern U.S. I have the precedents in a criminal procedure text book and will update is I get a chance. See also the footnotes here. To some extent, the constitutional provision in NY State is designed to make clear that bench trials are allowed when a jury has been waived. It also authorizes bench trials where the U.S. Constitution and state law permits them. | How can incitement of imminent lawless action not be constitutionally protected? The short answer to your question is "because the Supreme Court of the United States said so." In Brandenburg v. Ohio SCOTUS found that the Constitution protects speech that calls for lawless action in the abstract but does not protect speech "directed to inciting or producing imminent lawless action and is likely to incite or produce such action". The court's per curiam opinion seems to treat the decision as self-evident - it's quite short after discussing the facts of the case. However, Justice William O. Douglas wrote a concurring opinion (his "caveat") that discussed and was critical of previous decisions in such cases, including the use of the 'clear and present danger test', so his opinion is useful for a brief history of First Amendment judgments to that point (Brandenburg). The Declaration of Independence is not law. Following "a history of repeated injuries and usurpations" and failures to reach political settlements it asserts a moral right to overthrow the tyranny of the British crown. It alludes to rights, it does not "enshrine" or create a legal right that the judiciary can interpret. Judges might refer to the Declaration in their judgments, not using it as legal authority but an articulation of fundamental values. | Absent newly enacted law in response to the end of the separate sovereigns doctrine, the first case to which jeopardy attaches (generally speaking when a jury is sworn and the first item of evidence is presented to it) would bar subsequent prosecutions, without regard to whether it arose in state or federal court. It would be a race to the court house rule. This is how it works if there are multiple prosecutions within a state, for example, one commenced in a municipal court that is not part of a state court system, and another commenced in a state court of general jurisdiction. | Article 10 of Part I of the Constitution of New Hampshire (Article 10, Part II relates to classification of town governments) is mentioned in five reported appellate cases in the history of New Hampshire since it was adopted in 1784 that I could locate. It has never successfully been effective to protect the rights of anyone invoking it. (It is possible that it has been argued in a trial court on a jury nullification theory, but such cases wouldn't produce reported cases as criminal acquittals cannot be appealed by the government.) The cases, and the pertinent part of each ruling, are as follows: Orr v. Quimby, 54 N.H. 590, 619 (1874), it was held to create a moral rather than a legal right: The legal idea of a bill of rights is a declaration of private rights, annexed to and made a part of a constitutional grant of governmental power. Reservation is, in general, the purpose and legal meaning of such declaration. For exceptional reasons, applicable to the construction of article 10, the right of insurrection there declared is evidently a moral right, not reserved as a legal one. But many of the most important constitutional rights are reserved in terms much less imperative than "shall" and "shall not." The right of petitioning for a redress of grievances (the plaintiff's sole remedy, if the plea is good) is reserved by a simple declaration of the right, without a word literally signifying a command or prohibition. It was also addressed in the case Opinion of the Justices, 144 N.H. 374, 746 A.2d 981 (1999) where it was found to not invalidate a means of raising revenue for a municipal electrical utility: Question two inquires whether HB 536 "violate[s] the constitutional provision that government is instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men under part I, article 10 of the New Hampshire constitution?" We answer this question in the negative. Part I, Article 10 provides: Government being instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, and public liberty manifestly [746 A.2d 987] endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind. This provision of our constitution has commonly been regarded as enumerating a citizen's right to reform an ineffectual or manifestly corrupt form of government. See City of Claremont v. Craigue, 135 N.H. 528, 533-34, 608 A.2d 866, 869 (1992); Nelson v. Wyman, 99 N.H. 33, 50, 105 A.2d 756, 770 (1954). We have recognized for over one hundred years, however, that this provision is imbued with "[t]he principle of equality [that] pervades the entire constitution," State v. Pennoyer, 65 N.H. 113, 114, 18 A. 878, 879 (1889), and as such, Article 10 provides support for the maxim that "[t]he law cannot discriminate in favor of one citizen to the detriment of another." Id. Thus, Part I, Article 10 has been recognized as providing for more than a "right of revolution"; rather, it is one of many provisions in our Bill of Rights that forms the basis for a citizen's right to equal protection. See, e.g., Town of Chesterfield v. Brooks, 126 N.H. 64, 67, 489 A.2d 600, 602 (1985) (zoning ordinance violated equal protection rights guaranteed by Part I, Articles 1, 2, 10, 12, and 14); Gazzola v. Clements, 120 N.H. 25, 29, 411 A.2d 147, 151 (1980) (statute violated equal protection rights guaranteed by Part I, Articles 1, 10, 12, and 14). Pursuant to the principle of equality inherent in Article 10, this court found that the raising of tax revenue to aid an electric utility would violate Part I, Article 10's mandate that government is "instituted for the common benefit ... of the whole community, and not for the private interest or emolument of any one man, family, or class of men." Opinion of the Justices, 88 N.H. 484, 489, 190 A. 425, 429 (1937). Aid to a utility is forbidden except in protection of the public welfare and interest. And the protection must be in a needed service furnished the public by the utility as a condition of the aid. Without the condition the protective principle is inapplicable. Unconditional aid is not a proper charge of government to be met by the taxpayers. 144 N.H. 382 Id. at 488-89, 190 A. at 428. The court noted that the existing public utilities already provided sufficient power to service State customers, and that any additional supply was sent out-of-state. Id. at 489, 190 A. at 429. The court reasoned that because the transmission of additional electric energy outside the State served no public purpose, and thus the need for public funds for additional development was a private, not public, purpose, the proposed aid was unconstitutional. Id. In this case, however, the legislature is proposing to create a tax exemption, rather than directly raising tax revenue to subsidize private purposes. Cf. Opinion of the Justices (Mun. Tax Exemptions for Indus. Constr.), 142 N.H. at 101, 697 A.2d at 124 (finding determinative under Part II, Article 5 that there was not direct expenditure, but rather a uniform exemption of state-wide application). Moreover, even if one views an exemption as simply a form of direct grant, see Eyers Woolen Co. v. Gilsum, 84 N.H. 1, 9, 146 A. 511, 515 (1929) (exemptions are "in effect, a compulsory payment of money, by those who bear their shares of the common burden, to the privileged person who does not bear his share"), the public benefit gained by this legislation is sufficient to render it constitutional. Our constitution does not require absolute equality of burden in the case of exemptions. "The resulting inequality or discrimination against unexempted property is not fatal to the constitutionality of the exemption," Opinion of the Justices, 87 N.H. 490, 491, 178 A. 125, 126 (1935), provided "it advances a public purpose," Opinion of the Justices, 95 N.H. at 550, 65 A.2d at 701, and is "properly within the legislature's discretion in acting for the welfare of the state," Opinion of [746 A.2d 988] the Justices, 87 N.H. at 491, 178 A. at 126. As stated above, the benefit to be gained by HB 536 is increased competition and customer choice, and not necessarily the need for additional power. Further, deregulation of the electric utility industry is "properly within the legislature's discretion in acting for the welfare of the state," id., and it is proper for the legislature to enact exemptions that promote the economic well-being of the State, see Opinion of the Justices (Mun. Tax Exemptions for Indus. Constr.), 142 N.H. at 100, 697 A.2d at 123. Accordingly, the tax exemption is properly granted under the legislature's "constitutional power to provide for the common benefit, protection and security," Opinion of the Justices, 88 N.H. at 487, 190 A.2d at 428, and does not violate Part I, Article 10. To the extent that question two implicates additional equal protection guarantees under Part I, Article 10, cf. Gazzola, 120 N.H. at 29, 411 A.2d at 151, we conduct our analysis concurrently with the next question you posed; namely, whether HB 536 improperly classifies taxable property such that the burden of taxation is inequitably distributed, cf. Rosenblum v. Griffin, 89 N.H. 314, 320-21, 197 A. 701, 706 (1938) (constitutional issue of classification decided under Part I, Article 10). For the reasons stated below, this part of question two is answered in the negative. In another case, City of Claremont v. Craigue, 135 N.H. 528, 608 A.2d 866 (1992), it was argued unsuccessfully, that voter approval cleansed an improperly adopted budget of the taint of improper steps taken prior to the vote: Finally, the respondents cite part I, article 10 of the New Hampshire Constitution, known as the right of revolution, as a general right to self-determination. Part I, article 10 provides in pertinent part that "whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, [135 N.H. 534] or establish a new government." Without in any way detracting from the continuing validity and truth of part I, article 10, we find that none of [608 A.2d 870] the conditions specified in that article have been met in this case. Prohibiting voter ratification of a city's budget hardly "perverts" the ends of government or manifestly endangers public liberty, so long as the city's voters retain the right to elect their local representatives. Moreover, the defendants have not exhausted all other legal means of redress, since, as we noted above, the legislature has set forth a statutory procedure for charter revision, and that option remains available to the voters of Claremont. Therefore, the respondents' proposed revisions to the Claremont city charter are invalid, and of no effect. It was brought up, without success, in In re Town of Bethlehem, 154 N.H. 314, 911 A.2d 1 (2006), but I don't have access to that particular opinion in which an environmental regulation was challenged. It was raised in Nelson v. Wyman, 99 N.H. 33, 105 A.2d 756 (1954) where the court concluded that it did not invalidate a McCarthy era law: It is also strongly urged by the plaintiff that the Legislature of this state cannot proscribe activities looking to the overthrow of government by force or violence because of Article 10 of the Bill of Rights which provides, in part, that ‘whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought, to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind’. With this interpretation we cannot agree. The right reserved to the people by this Article is not such a broad and unlimited right of insurrection and rebellion as to permit any group which is dissatisfied with existing government to lawfully attempt at any time to overthrow the government by force or violence. It is not claimed by the plaintiff that ‘the ends of government’ are now ‘perverted’, ‘public liberty manifestly endangered, and all other means of redress * * * ineffectual’ but it is only when those conditions prevail that the right to resist and to ‘reform the old, or establish a new government’ exists. The right possessed by the people of this state as a protection against arbitrary power and oppression cannot be utilized to justify the violent overthrow of government when the adoption of peaceful and orderly changes, properly reflecting the will of the people, may be accomplished through the existing structure of government. 99 N.H. 51 Dennis v. United States, 341 U.S. 494, 501, 549, 71 S.Ct. 857, 95 L.Ed. 1137. To require a government representative of the people, in the face of preparations for revolution by force, to refrain from acting to curb the [105 A.2d 771] outbreak of violence and to confine itself solely to holding answerable those persons who have committed crimes of violence and terrorized the community in the name of revolution must result in anarchy. Dennis v. United States, supra, 341 U.S. 501, 71 S.Ct. 857. Article 10 was not intended to accomplish this result. So far as the circumstances of this case have required an examination of the 1951 act, we conclude that it is constitutional upon its face, so as to furnish a basis for the resolution of 1953. | Constitutional matters can be, and often are, decided by a single judge in a garden-variety trial court. It's just that the judge's decisions may be reviewed and possibly overturned by a higher court, one of which is the supreme court. Furthermore, district courts are bound by precedent. If a case turns on a new statute, however, the trial judge can indeed find that new statute unconstitutional without a higher court first having done so. If a panel of judges is evenly divided on whether to overturn a lower court's ruling, the lower court's ruling stands, but no precedent is set. The supreme court often has an even number of justices hearing a case, whether because of a vacancy or because a justice has recused him or herself. | SCOTUS has at least three times found that it is necessary for a defendant to be present at the beginning of a criminal trial in order to satisfy the Constitutional mandates regarding due process. So the simple answer is that a defendant must be present during a criminal trial because without his presence no trial can begin. However, once a trial has begun FRCP Rule 43 itself (section c) allows for the absence of the defendant. Among the provisions: The defendant can waive his right to be present simply by voluntary absence. The defendant can also waive his right by disruptive behavior in the court. | A US state's constitution cannot "put restrictions on" the Federal constitution, or any of the rights guaranteed by it, if by that is meant limiting the rights Federally guaranteed. The so called "Supremacy clause" of Article VI says: This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. (The above was more relevant before the question was edited to remove the 'put restrictions on" language. But it is still accurate and somewhat relevant.) Similarly, and because of the Supremacy clause, the content of a US State's constitution cannot change the interpretation of the federal constitution, in either state or federal courts, including the presence or absence of rights similar to those protected by the Federal Constitution. However, a number of state constitutions have guarantees which parallel the federal First Amendment, particularly its freedom of speech and freedom of religion aspects. This is particularly true of state constitutions written prior to the ratification of the Fourteenth Amendment. At that time, the Federal Bill of Rights only restricted the federal government, and so when similar restrictions were wanted against a state government, they had to be in the state constitutions. See Barron vs Baltimore for the limitation of the bill of rights to restricting the federal government at this time. Such provisions did not usually reference the Federal First Amendment explicitly, they simply had more or less similar language. Since the passage of the 14th, and the incorporation of the various provisions of the Federal bill of rights against the states (largely starting in the 1920s) most court cases have refereed to the Federal provision rather than any similar state provision, unless, as is sometimes the case, the state provision offers greater rights or wider scope than the federal one does. | There are a number of specific limitation on what can be made criminal in US law, derived from constitutional protection. Specific Rights Expressions of free speech, for example, cannot be made criminal, although there can be laws which regulate or impact speech to a degree. Similarly, the establishment clause of the First Amendment prohibits a law requiring people to attend a particular church, and he free Exercise clause prohibits any criminal penalties for any religious practice or lack of practice. Most of the other provisions of the Bill of right would impose similar limitations. The legislature cannot criminalize what people have a constitutional right to do. Thre are also specific limitations not in the bill of rights, such as the prohibition of Ex Post Facto laws, the right to trial by jury, and the constitutional limitation of Treason laws. Rational Basis Beyond that the Due Process clause of the 5th and the parallel clause of the 14th impose limits on criminal law generally. Criminal laws must have (at least) a rational basis. The legislature cannot just prohibit picking up papers because they felt like it, they must have articulated a problem and a plausible reason why a given law would address it. If they don't the law may be overturned as unconstitutional. If a law is challenged as being unconstitutional, it will currently either be subject to rational basis analysis, or to one of the stricter levels. However a law which cannot pass rational basis analysis will not survive intermediate scrutiny or strict scrutiny either. Laws which appear to invade one of the enumerated rights, or a right that the Court has deemed "fundamental" are normally tested under either strict or intermediate scrutiny. According to the the Wikipedia article: Courts applying rational basis review seek to determine whether a law is "rationally related" to a "legitimate" government interest, whether real or hypothetical. The higher levels of scrutiny are intermediate scrutiny and strict scrutiny. ... laws implicating unenumerated rights that the Supreme Court has not recognized as fundamental receive rational basis review. ... In modern constitutional law, the rational basis test is applied to constitutional challenges of both federal law and state law (via the Fourteenth Amendment). This test also applies to both legislative and executive action whether those actions be of a substantive or procedural nature. The rational basis test prohibits the government from imposing restrictions on liberty that are irrational or arbitrary, or drawing distinctions between persons in a manner that serves no constitutionally legitimate end. ... A court applying rational basis review will virtually always uphold a challenged law unless every conceivable justification for it is a grossly illogical non sequitur. (See Killian, Johnny H., George A. Costello, & Kenneth R. Thomas, co-eds., The Constitution of the United States of America: Analysis and Interpretation: Analysis of Cases Decided by the Supreme Court of the United States to June 28, 2002, by Congressional Research Service, Library of Congress (Senate Document No. 108-17, 108th Congress, 2d Session) and specifically Romer v. Evans, 517 U.S. 620 (1996) at 635) Rational Basis analysis became accepted after the demise of "substantive Due Process", mostly in a civil, rather than criminal context. A version of it was suggested in Lochner v. New York 198 U.S. 45 (1905), in the dissent by Justice Holmes. It was adopted as governing in [*Nebbia v. New York * In United States Department of Agriculture v. Moreno 413 U.S. 528 (1973) The Court overturned, on a rational basis scrutiny, a law excluding households consisting of unrelated people from the Federal Food Stamp program, writing: [A] bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. Specific cases In Eisenstadt v. Baird 405 U.S. 438 (1972) a law that criminalized the distribution of contraceptives to unmarried persons was overturned on a rational basis review. Similar cases are now generally treated with intermediate scrutiny. In James v. Strange 407 U.S. 128 (1972). a Kansas law reclaiming payments for public defenders was overturens on rational basis review as “an impermissible burden on the right to counsel established in Gideon v. Wainwright." In Bowers v. Hardwick 478 U.S. 186 (1986), rational basis analysis was employed to sustain a statute criminalizing homosexual activity. However, this was later overturned.. Vagueness Also under Due Process, vague laws are prohibited. If a reasonable person cannot tell from the law what is or is not illegal, the law can be overturned for vagueness. Procedural protections Then there are procedural limits, also largely derived from the Due Process clause(s). A law cannot automatically convict people without a genuine hearing, in which a person can present a defense to an independent, impartial judge or jury. A law cannot impose duties which are flatly impossible to perform. A law cannot impose punishments which are considered unreasonable for the seriousness of the crime (as evaluated by judges). Other Limits There are other limits as well, it would take a book to list them all in detail. But those are some of the more frequently applied ones. |
Is it legal for a long truck to shut down traffic? I was killing time on YouTube the other day, and came across a video of a shipping company moving a very long girder to a construction site. There were several points in the move that they had to block all traffic through an intersection (with one of the chase cars) for a few minutes in order for the truck to be able to swing around enough to make the turn. Now, just to be clear, I wouldn't have a problem with this if I were in one of the cars that was inconvenienced for a minute. But I do want to know, is it, strictly speaking, legal? Is there something in their oversized vehicle permit (or whatever paperwork) that says "You can block the road"? Or is it simply a matter of practicality, where the police realize that they need to get the girder there somehow, and it would cost more time and money to ticket them for blocking the road than it would just to let them continue? | Oversize transports are known beforehand and have special permits. The department of transportation/Federal Highway Administration provides information for oversize and overweight transports. Permits The Federal government does not issue permits for oversize or overweight vehicles. This is a State option. Nondivisible Loads: Permits may be issued by the States without regard to the axle, gross, or Federal bridge formula requirements for nondivisible vehicles or loads. Nondivisible is defined as any load or vehicle exceeding applicable length or weight limits which, if separated into smaller loads or vehicles, would: Compromise the intended use of the vehicle, i.e., make it unable to perform the function for which it was intended; Destroy the value of the load or vehicle, i.e., make it unusable for its intended purpose; or Require more than 8 work hours to dismantle using appropriate equipment. The applicant for a nondivisible load permit has the burden of proof as to the number of workhours required to dismantle the load. In this case, a super-long girder has its value from being a single item, so the state is allowed to make a special permit to exceed the normal regulations on weight and size. The regulations what is needed for a permit and what the permit allows is state specific. Typically, the permit is single-use and bound to a specific day and route. It's also not atypical for the crossings to be closed by police before the truck convoy arrives. Even without a police escort, the special permit allows them to block the road in specific circumstances, such as taking a tight turn. | A related post is here. Are police required to record in car dashcam video for traffic tickets in NJ, USA? Probably not. Is there any way to find out if they aren’t telling the truth? Ask and hope you are not lied to. Can I contact the police chief, mayor, or municipal judge? You can contact the police chief or mayor if you can get through to them. They are not required to answer you unless you make a formal discovery request or public records request. You cannot make ex parte contact with a judge when the other side's lawyer (in this case, the city's lawyer) is not present. How can I defend myself in court trial if the judge always believes highly credible police officers over defendants if I don’t have video? You can tell your side of the story under oath with any details that makes your story believable. You are correct that the judge will usually believe the police officer and not you. So, usually you will lose. This is one reason that most people try to plea bargain their traffic tickets, rather than going to trial. Due process rights give you an opportunity to tell your side of the story when contesting a ticket, but it doesn't give you a right to win (even if you are actually in the right) if the judge or other trier of fact doesn't believe what you have to say. It does not appear that you have a right to a jury trial in a traffic case in New Jersey, although this depends to some extent on the kind of violation being charged, so you are probably stuck with the beliefs of the municipal court judge about who is the more credible witness. | Courts, particularly traffic courts, tend to take a police officer's word over that of an accused person. While legally the limit is 70, the driver has very little recourse if the officer claims falsely that the actual speed was over 70. But the deterant effect of a posted limit is lost, since drivers in general have no way to know that Officer O will ticket anyone going over 60. I suppose that driver D, or D's lawyer, could subpoena calibration records of any radar gun or other measuring devise used, and could insist on its being tested. However, unless they had reason to think there was an issue, I wonder if D and D's lawyer would go through that process. Some speed measuring devices print a paper slip showing the date and time along with the reading. If such a device was used that record would be harder to alter. Some cars are now equipped with devices provided by insurance companies that record speeds and other driving info in a secure way to help judge a driver's safety and allow individual rate setting. It might be that the record from such a device would be admissible to show the speed was under the posted limit. But there is a sense in which the law is what the police and the courts enforce. If anyone who drives the road over 60 is cited and must pay, one could say the effective limit there is 60. | Can't park within 30 ft of a stop sign. Tex Tn Code 545.302 b4. If this is the law they don't need to post a sign. http://codes.lp.findlaw.com/txstatutes/TN/7/C/545/G/545.302 | What do you mean by "a public building"? Just because a place is owned by the public, doesn't mean anyone can go there any time they wish. Military bases, firehouses, and jails are owned by the public, but many of these have limited access to the public. It may be open to the general public, but that does not mean restrictions cannot be put into place, either on times, or activities, or individuals. For example, public parks often have time and activity restrictions; schools have the power to restrict individuals from their premises, either specifically or by general category. As a general point of law, the owner of any property, or their agent, can order anyone without the right to stay (e.g. not a co-owner or tenant), and that person must depart, otherwise that person is tresspassing. Assuming that the Senior Center is owned by the town, it is probable that the Administrator is empowered to act as the town's agent in this matter. Now, since this "No Trespass order" is specifically directed at you, there is a reason behind it. It may be something you've done. It may be that complaints have been received about your behavior. It may be an actual abuse by someone who doesn't like you. We have no way of knowing. It the order itself doesn't give you a hint as to why, you can ask the town administrator for the reason. As for being against your rights, there is nothing inherently illegal about this situation(that is, an agent of a property owner exercising the latter's right to prohibit an individual from said property), but some of the details, especially why it was specifically applied to you as an individual might be a civil rights violation. | An analogy to towing companies is tempting but misplaced, since towing is a statutorily-authorized and regulated activity (e.g. RCW 46.55). You therefore cannot just charge an arbitrary storage fee for uncollected equipment, and it is highly unlikely that there is any provision in the contract which authorizes you to charge for storage. The question is why you think you think they are responsible for picking up the excavator – presumably there is a clause in the contract that says that they will pick it up. Assuming that the contract doesn't say much, then your recourse would reside in the fact of their equipment trespassing on your property. You would need to officially withdraw permission for their equipment to be on your property (since you gave it in the first place). They would have a reasonable time to retrieve their goods, and if they don't do so, you would have a basis for suing them for damages. Also, the worst thing you could do is forcibly keeping their key until they pay you a storage fee: you'd need a court-ordered award, to get anything from them. The Connecticut towing law is here. Note that in order to call a towing company to get the equipment towed (if that's even possible), there has to be "conspicuous signage" warning of the possibility of towing "on such private commercial property"; but an overriding consideration is that you may tow if the vehicle is left for forty-eight or more hours. Two points to be noted are that although the law refers to "An owner or lessee of private property", the signage requirement implies that the property has to be commercial, not residential (this limitation to "private commercial property" is repeated in the statute, indicating a legislative intent to restrict the legal towing permission to commercial property). The law refers to "motor vehicles", but it is not clear whether an excavator counts as a "motor vehicle" (defined in para 54 of the definitions section). Although an excavator is a "vehicle propelled or drawn by any nonmuscular power", exceptions are carved out for agricultural tractors, farm implements, and "and any other vehicle not suitable for operation on a highway", which I think reasonably means that an excavator is not a motor vehicle. So since the towing statute does not authorize towing of something that is not a motor vehicle, that would not seem to be an option in this case (even if there were signage, and this is commercial property). And calling a towing company would only get the item removed from your property, but would not authorize you to collect a storage fee (the towing company can only do so after the police have been notified, which they must do withing 2 hours). | 4511.71, "driving on a closed road", doesn't apply here: it requires that the closure be done using a sign, rather than a generic "traffic control device". It also appears to be intended to apply specifically to construction closures, not closures in general. However, what you describe is, at a minimum, a violation of: 4511.25, lanes of travel: (A) Upon all roadways of sufficient width, a vehicle or trackless trolley shall be driven upon the right half of the roadway, except as follows: [exceptions that don't apply] where "roadway" is defined in 4511.01 as (EE) "Roadway" means that portion of a highway improved, designed, or ordinarily used for vehicular travel, except the berm or shoulder. and 4511.28, passing on the right: (A) The driver of a vehicle or trackless trolley may overtake and pass upon the right of another vehicle or trackless trolley only under the following conditions: (1) When the vehicle or trackless trolley overtaken is making or about to make a left turn; (2) Upon a roadway with unobstructed pavement of sufficient width for two or more lines of vehicles moving lawfully in the direction being traveled by the overtaking vehicle. In short, the road is "closed" in the sense that there is no legal way for you to drive past the police car. And it doesn't really matter which offense you're charged with: all three are classified as "minor misdemeanors", carrying the exact same penalties. | No party is granted the right of way, instead, some party is required to yield the right of way. Sec. 545.155 of the Texas Transportation Code says An operator about to enter or cross a highway from an alley, building, or private road or driveway shall yield the right-of-way to a vehicle approaching on the highway to be entered. Sec. 545.256 likewise requires that An operator emerging from an alley, driveway, or building in a business or residence district shall: (1) stop the vehicle before moving on a sidewalk or the sidewalk area extending across an alley or driveway; (2) yield the right-of-way to a pedestrian to avoid collision; and (3) on entering the roadway, yield the right-of-way to an approaching vehicle. The law against wide right turns says "To make a right turn at an intersection, an operator shall make both the approach and the turn as closely as practicable to the right-hand curb or edge of the roadway"; intersection "means the common area at the junction of two highways, other than the junction of an alley and a highway", and highway or street "means the width between the boundary lines of a publicly maintained way any part of which is open to the public for vehicular travel", i.e. the part where the parking lot empties into the main road. |
Could a US state allow non-citizens to vote in presidential elections? On July 30th [2020], President Trump suggested in a tweet that the US presidential election should be delayed due to COVID impeding in-person voting. Every news article I've read since (Vox, Slate, Washington Post) claims that the President does not have this power, but that state legislatures are able to decide how their electoral college electors are selected, and a (presumably Republican controlled) state legislature could decide to simply appoint electors of their choosing. The Vox article states that the SCOTUS Bush v. Gore decision reiterated this ability, saying that the state legislature "may, if it so chooses, select the electors itself". Given this wide latitude to determine how the electors are appointed, could a state decide to appoint its electors on the basis of a statewide vote in which non-citizens are also permitted to vote? Initially the answer appears to be "no", on the basis of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. However, that act states: (a) It shall be unlawful for any alien to vote in any election held solely or in part for the purpose of electing a candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner However, I don't believe the act prohibits states from taking into account such votes. The voter would run the risk of criminal penalties, but the state could contrive to avoid this. For example, every eligible (by whatever criteria the state decided) voter could be mailed a difficult-to-forge token shortly before election day. In-person voting would require you to present and relinquish your token, but no attempt would be made to identify you or record your identity. This would make double-voting hard, while preventing determination of who has voted. Alternatively, could a state assign electors by a process that would produce a statistically similar result to an election, but is not actually an election? For example, surveying 10% of the state's eligible (again, by whatever criteria the state decides) population and assigning the electors to the plurality winner of the survey. Obviously this is all hypothetical, since the table here shows that every state has language restricting voting to citizens. I'm just wondering what options exist. Edit: I have modified this question to remove the reference to New Hampshire not having a citizenship requirement for voting, since it does - my error was based on a partial quote. Thanks to @JustAGuy for providing a link to the full text. | Yes, states could allow aliens to vote for President. As ohwilleke says, the Constitution gives the states control over who can vote. In fact, for much of our history, many states allowed aliens to vote. To the extent that 18 U.S.C. § 611, which forbids aliens from voting for President, contradicts that power, it is unconstitutional. If 18 U.S.C. § 611 is so obviously unconstitutional, why is it still on the books? Mostly because 18 U.S.C. § 611 is purely symbolic. It literally has had no effect on who can vote in the US. As noted above, throughout the 19th and early 20th century, many states allowed aliens to vote. But with the turn against immigration in the early 20th century, states that had allowed aliens to vote explicitly revoked that privilege. The last state to prohibit aliens from voting was Arkansas, in 1926. Thus, for almost a century, every state has prohibited aliens from voting in state elections, so no voter was affected by the passage of 18 U.S.C. § 611. (For a survey of the history of alien suffrage, see here.) Voting is a state matter: It is widely agreed that the Qualifications Clause, Art I, § 2.1 of the Constitution gives states control over who votes in federal elections, (subject, of course, to other constitutional requirements, such the 15th, 19th and 26th Amendments). The clause says the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature. In other words, anyone who is qualified to vote for the largest branch of the state legislature is qualified to vote for President. (The original text only talked about elections to the House because Senators were chosen by state legislatures, not voters. When this was changed by 17th Amendment, that Amendment repeated this qualification for voters.)(For more extended, but reader friendly, discussion of these issues see here. People sometimes point to the "Elections Clause," Art. I, § 4.1, as giving Congress power over voter qualifications. That clause gives Congress the power to regulate the "Times, Places and Manners of holding elections." They read, "Manners of holding elections” to include the qualifications for voting. This reading of the Elections Clause is inconsistent with several of the sources of constitutional authority Americans typically consult, including the text, the intent of the Founder and precedent. All of these support the “Qualifications Clause” reading of the Constitution. 1) Constitutional Text: Reading the Elections Clause as giving Congress control over voter qualifications, renders the Qualifications Clause almost completely meaningless. Yet everyone agrees the Constitution should be read so that all its parts mean something – no part should be rendered superfluous. 2) Intent of the Founders: When the Founders debated voting qualifications, they were clearly worried that politicians would manipulate the electoral rules to favor them. The Founders believed the Qualifications Clause kept both national and state politicians from stacking the electoral deck. First, by giving the power of deciding who could vote to the states, the Clause prevented national politicians from choosing their own electorate. Secondly, by requiring the states to use the same qualifications for voters in state and national elections, the Clause prevented state politicians from manipulating the rules in national elections. As for the Electoral Clause, in Federalist 60, Hamilton was clear who controlled voter qualifications: “The qualifications of the persons who may choose or be chosen…are unalterable by the [federal] legislature…” 3) Precedent and practice: For most of our history, people acted consistently with Hamilton’s statement. They tolerated a wide variation in who was allowed to vote across states. As noted above, many of those states specifically allowed aliens to vote. (And, starting in 1787 with the passage of the Northwest Ordinance, Congress passed a series of laws allowing aliens to vote in territories.) When Americans did make nationwide changes to voting qualifications, they did so by amending the Constitution, as when they prohibited discrimination in voting by race, sex or age. There are only a handful of Supreme Court decisions involving federal control over voting qualifications. In 1970, in Oregon v. Mitchell, the Supreme Court upheld a federal law changing the voting age to 18. The opinion of the Court, written by Justice Black, relied on the Elections Clause to say that Congress had the power to change voting requirements. None of the other Justices shared Black's views on the Elections Clause. Instead, they agreed with Justice Harlan, who said, “nothing” in the Constitution, “lends itself to the view that voting qualifications in federal elections are to be set by Congress.” (These Justices used the Equal Protection Clause as the basis for federal control over voter qualifications.) Since then, no Justice has followed Justice Black. Instead, they have followed Justice Harlan. For example, in 2013, in Arizona v. Inter Tribal Council Justice Scalia, (in an opinion joined by Breyer, Ginsburg, Kagan, Kennedy, Roberts, and Sotomayor) said, “the Elections Clause empowers Congress to regulate how federal elections are held, but not who may vote in them.” From this evidence, I’d say you were right to be puzzled about the constitutional authority for the IIRIRA. A federal law preventing aliens from voting in federal elections undermines the text of the constitution by rendering the Qualifications Clause superfluous, goes against the clear intent of the Founders, and is inconsistent with 200+ years of history and precedent. It only survives because it has no practical effect on voting in the US. Since this situation seems unlikely to change soon, it seems likely the statute will remain on the books to confuse Americans for the foreseeable future. Edited to add: Could states count alien votes under the IIRIRA? No: Under the IIRIRA, there can't be any alien votes to count! § 611(a)(3) of the IIRIRA says aliens can only vote in an election if they do not have "an opportunity to vote for a candidate for any one or more of such Federal offices." You ask whether "non-vote" methods of measuring alien's opinions, such as surveys, are legal under the IIRIRA. These clearly violate the purpose of the IIRIRA, which is to prevent aliens' opinions from influencing the outcome of federal elections. But it's not clear they violate the IIRIRA as written. They only violate the IIRIRA if you are willing to apply the "familiar rule" that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit nor within the intention of its makers. But in real life, these questions are irrelevant. As a practical matter, they would never come up. If a state really wanted to allow aliens to vote, it would challenge the constitutionality of the IIRIRA. That no state has done this means no state politicians want to be seen advocating for alien voting. The IIRIRA is like the proverbial law "requiring you to breathe:" You follow it, not b/c it's the law, but because that's what you were going to do anyway. | [C]an this decision really be used as legal precedent for birthright citizenship for tourists and illegal immigrants? Yes. If the case did not depend on the fact that they were lawfully resident in the US, then it would apply to those who are not lawfully present in the US. For the case to apply to some people but not others, there must be a distinguishing difference that is relevant to the analysis of the case. The question then is whether lawful residence is a distinguishing difference here, and it seems that no court has ruled on the question. Referring to current events, it would be possible for the executive branch to assert that the 14th amendment does not grant citizenship to one born in the US of parents who were not lawfully present. This would end up in court. For example, such a person could sue to compel the government to issue a passport, or, if the government sought to deport such a person, the person could assert US citizenship in deportation proceedings. At that point, the court would have to rule on the question, whereupon it would almost certainly rule that the 14th amendment does grant such citizenship. See, for example, Plyler v. Doe, in which the court ruled that illegal immigrants in a state are within its jurisdiction for the purpose of the equal protection clause. It would be odd indeed for the court to rule that the same word means something different in the previous sentence. Furthermore, in a footnote, the court writes [W]e have had occasion to examine the first sentence of the Fourteenth Amendment, which provides that "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States. . . ." ... [N]o plausible distinction with respect to Fourteenth Amendment "jurisdiction" can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful. You ask: [H]ow is it that foreign diplomats' children born in United States do not have birthright to US citizenship because they are not "subject to the jurisdiction thereof" and children of tourists and illegal immigrants do have the birthright to US citizenship? Consider what happens when an illegal immigrant commits a crime in the territory of a US state: the person is subject to trial and punishment in the state's criminal justice system. A foreign diplomat who commits a crime, on the other hand, or indeed the child or other family member of a foreign diplomat, is immune from prosecution. That is what distinguishes diplomats from illegal aliens such that the first sentence of the 14th amendment applies to the latter, but not the former. | Generally, no. Legislatures pass laws. The fact that someone else knows more about the thing they're passing laws about is utterly irrelevant -- the power to make laws is given to the legislature, not to experts. If the legislature thinks experts should make the rules on something, they can delegate (this is why the FDA approves medicine rather than Congress), but the legislature of a state generally has the power to pass any law that is not unconstitutional. Your analogy to paper money is a poor one: that's a federalism thing, not an expertise thing. Congress has established a system of paper money, and states can't interfere with that. It's not that the Fed thinks paper money is good, it's that Congress said paper money shall be a thing. That could stop a state from banning an FDA-approved drug; however, since marijuana is illegal under federal law, it would be odd to conclude that banning it at the state level as well is preempted. Legislators aren't inherently experts on anything (except being elected). That doesn't matter. They have the authority to pass laws, even if those laws directly go against the views of people who are recognized experts in the area. You appear to think there must be a judicial remedy against bad policy. You would be wrong. The role of the courts is not to decide what policies are good or bad; they are concerned only with what is legal. Deciding what policies are good or bad is a matter for the democratically elected representatives of the people, or for the people themselves in states with ballot questions. It is not the job of the courts. | with the new movement by some states to require voters to have identification to vote, and the fact that no state I know of provides free government issued ID (unless you are an employee) it seems that unless a state provided its residents with free access to state-issued ID, that requiring people to go pay for ID's needed to vote would be contrary to the Twenty-Fourth Amendment. This specific issue (which is much easier to address than the general question) has been litigated, and in some cases, it has been a successful argument. It is pretty much acknowledged now that requiring a fee for all documents required in order to have ID necessary to vote violates the 24th Amendment. But, the states that enacted these requirements knew that and tried to get around it by making at least one form of voter ID free, which prevents the statutes from being facially invalid. This isn't the end of the question, however: Voter ID laws, enacted in 11 states over the past two years, require voters to show a government-issued photo ID that the state will provide for free. But while the ID is free, the documents residents need to prove their identity in order to get that ID, such as a birth certificate, are not. Now, lots of people already have documents like birth certificates that were purchased by their parents at their birth and are now available to them for free. But, that isn't always the case. This raises the question of whether there is an "as applied" violation of the 24th Amendment in the cases of someone who can't prove their entitlement to compliant voter ID without paying for it, and if so, what the proper remedy is for the violation. These issues are still being actively litigated and haven't been definitively resolved on a national basis in all circumstances. | Each state has its own election laws, so you will get 50 different answers depending on what state you are interested in (perhaps 49, since Washington doesn't have polling places - depends on what you mean by "poll watcher"). This page is a starter list of legal resources. This page starts you on deconstructing this notion of "poll watcher". Colorado is one state that explicitly allows partisan observers, here are the rules. No person is compelled to be an observer, so I don't understand who you think might be abusing a poll watcher. Perhaps you are referring to the possibility that an election official will prevent an observer from doing their job. Or perhaps you are thinking that being a poll watcher abuses the intent of some law. Whatever you have in mind, there are laws in each state that say what is allowed and what is forbidden, so you have to address this at a local level. No state has a requirement that observers must come from or swear allegiance to the majority party of that polling jurisdiction (e.g. county, or precinct). Any attempt by election officials, or anyone else, to block observers from the minority party would be rebuffed by the courts. The courts will not attempt to divine inner motivations for sending an observer. Most states allow partisan observers. Michigan distinguishes "challengers" and "poll watchers", and there are distinct rules and powers for the two sets. A crucial difference is that a watcher cannot legally challenge a claimed right to vote or a precinct board action, but a challenger can. There are rules of conduct imposed on both kinds of observers, one of them being that you cannot challenge a voter for the purpose of annoying or delaying the voter. This is a misdemeanor (a crime) under MCL 168.727, and as a criminal prohibition, the state would have to prove intent beyond reasonable doubt. Blog posts by the observer might provide sufficient evidence, but speculation by the majority party would not. | There's no settled legal answer to this, but there seems to be a general consensus that this would not be legal under the Impeachment Clause, which says: The President ... shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment. There would be two main issues here: 1. Can a president pardon himself? It's never been tried, so it's never been challenged, so the courts have never had a chance to say whether it's legal. The main argument in favor of self-pardons is that the constitution grants broad pardon authority for any offense against the United States, making an exception for impeachment, but not for self-pardons. The response to that is that the constitution uses all kinds of broad language that everyone agrees is not as broad as it sounds; Congress is not allowed to abridge the freedom of speech, but perjury laws are nonetheless constitutional. There are several theories as to why the self-pardon would be illegal, but they mostly come down to two main ideas -- that our legal system does not permit anyone to be the arbiter of their own case, and that a person subject to impeachment may not be pardoned. 2. Can a president issue secret pardons? Again, it's never been tried, so it's never been challenged, so the courts have never had a chance to say whether it's legal. And again, the primary argument in favor of secret pardons is that the Pardon Clause grants broad pardon authority without requiring that pardons be publicized. The main arguments against are (1) that presidential pardons are inherently public acts, as they have no effect if the justice system doesn't know about them, and (2) that the Presidential Records Act requires official White House records to be transferred to the National Archives. | Only for certain parts of the constitution, and not for the parts you are asking about. Accordingly, the Supreme Court has squarely stated that neither the First Amendment nor the Fifth Amendment "acknowledges any distinction between citizens and resident aliens."13 For more than a century, the Court has recognized that the Equal Protection Clause is "universal in [its] application, to all persons within the territorial jurisdiction, without regard to differences of ... nationality."14 The Court has repeatedly stated that "the Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent."15 When noncitizens, no matter what their status, are tried for crimes, they are entitled to all of the rights that attach to the criminal process, without any distinction based on their nationality.16 Are Foreign Nationals Entitled to the Same Constitutional Rights As Citizens? - David Cole, Georgetown University Law Center | It's actually simpler than you might expect: If you intend to spend more than US$5000 (which is nearly certain) you must fill out and file a Federal Election Commission (FEC) Form 2. There are 50 states that you now need to consider getting on their ballots. There is no requirement that you register in all of them but if you don't then you may have trouble winning the required electoral majority. The problem here is that every state has its own requirements but usually it's gathering signatures as required in that state's regulations. This is where you need an "organization" of some sort to gather signatures and get you properly placed on the ballots in all 50 states of all of the states you think you need to be on. The above assumes that you meet the US Constitution's criteria for a President. To my knowledge, President Trump, while he has make some statements to that effect, has not officially filed any forms at the federal or state level for the next presidential election so far. But anyone can say or imply that they are running and they may be but until the forms are filed it's not official. |
Hospital visitation rights and health-care decision-making authority in Maryland Suppose there is person A who lives in Maryland. Person A has parents B and C. Person A has sibling D. Person A has spouse E. Now, Suppose person A becomes medically incapacitated. Three Questions: Can E block B, C and D from visiting A in the hospital? What legal authorization form(s) can person A fill out and provide to B, C and D to prevent that from happening if this is a serious concern? What legal authorization form(s) can person A fill out and provide to B and C so that they get precedence in medical decision-making authority over E? | This is a valid question that comes up from time to time. The answer can be a bit fuzzy and the law on questions 1 and 2 is often not well spelled out. This answer refers only to U.S. legal history without much customization for Maryland in particular, so I may omit references to some relevant Maryland specific statutes or cases of which I am not aware. Often there is no statutory guidance or there is only inconclusive or vague statutory guidance. There is often also little appellate case law precedent to provide guidance. The issue comes up far more often than it is litigated, in part, because these issues tend to become moot before they can be resolved by a precedent creating appellate court, and because statutes addressing the issue tend to be recent and not yet litigated, or non-existent. These issues are often highly time sensitive and don't have an economic prize to spend money litigating over are often not litigate to the maximum extent. Court rulings when cases are presented to them often depend a lot on the procedural context of the way the issue comes up, how the issue is framed by the litigants, and upon the court's gut feelings and upon unwritten social norms. For example, one recent case involving the ability of a priest to visit a man who was sick with COVID-19 in a Maryland hospital notwithstanding hospital visitation policies was resolved in the context of a complaint to the Maryland Office of Civil Rights and would not be generally applicable to an intrafamily dispute as opposed to an allegation of religion based discrimination. The hospital's opinion is often given outsized weight, since it is a "neutral" party in a family dispute, has a vested interesting in having litigation resolved that is more economic than that of the family members, and is likely to have counsel that is most familiar with the issues presented. this is true even though often, a hospital has a religious affiliation or is for some other reason specific to the facts of a case is not truly a "neutral" party in a visitation dispute and takes a position for a non-medical reason. As a young lawyer at a law firm that represented a hospital, I handled cases like these for a hospital when they came up for a couple of years, because nobody more experienced wanted to deal with these emotionally draining and time consuming conflicts with few monetary rewards for the hospital, and because the stakes from the hospital's perspective were low, so junior associate attorneys could be trusted with this cases. Appellate courts also often frame these decisions as fact bound case by case questions decided under general considerations applicable to all forms of injunctive relief in civil cases, rather than questions presenting more general questions of law to which general policy rules apply. Furthermore, the conceptual foundation in which we think about the authority of different family members over an incapacitated person at common law has shifted materially since the 19th century when these issues started to arise, and mostly hasn't been formally discussed by the courts as applied to these particular situations in the meantime. So, even when there are old precedents governing these situations, there is doubt regarding whether they are still good law, because the old precedents are based upon assumptions about spousal and parental and family member rights that no longer hold in other areas of the law. See also an analysis of issues of visitation and medical decision making for disabled persons, primarily under the federal Americans with Disabilities Act and related regulations, with footnotes particular to Maryland's state laws on the subject. Can E block B, C and D from visiting A in the hospital? What legal authorization form(s) can person A fill out and provide to B, C and D to prevent that from happening if this is a serious concern? The right of a private individual to visit someone in a hospital is usually not codified into law and is usually a matter of hospital policy within reason, acting in the best interests of its patients from a medical perspective. Usually E could only block B, C and D from visiting A in the hospital (1) with the cooperation of the hospital based upon its own policies (since as a practical matter, the hospital is generally in control of the situation and has broad authority to restrict access to its patients for health reasons), or (2) with a restraining order or protective order obtained from a court, or (3) as a legal guardian appointed by a court of person A (who generally has the authority to decide who their ward can interact with). In old common law cases (usually mid-19th century or earlier, but sometime in the early 20th century), the spouse of a married person (sometimes only the husband of a wife, but not vice versa), or the parents of an unmarried minor or unmarried person more generally, had the rights of a legal guardian with respect to an incapacitated person, and a family member had authority to make decisions for an incapacitated person as next of kin, in the absence of a parent or spouse. But, for the most part, this is no longer legally enforceable law. The Married Women's Property Acts of the late 19th century and early 20th century generally eliminated the authority of a spouse to act as legal guardian of an incapacitated spouse without a court order, sometimes subject to cases of "necessities", and control of personal family property like a marital residence, household goods, or vehicle titled in a spouse's name alone that the competent spouse used in the ordinary course prior to the incapacity. The authority of a parent or next of kin person to take action for an incapacitated person without a court order was largely abrogated by state probate codes establishing court procedures for guardianship and conservatorship appointments for incapacitated people giving spouses, parents and next of kin priority, but not authority in the absence of a court order, except in the case of minor, unmarried, unemancipated minor children. And, even then, it is rare for statutes for expressly grant parents that authority over the children by statute and the authority is merely assumed as background common law to other statutes limiting that authority in cases of child abuse or child neglect, and some kinds of decisions still need court approval even in the case of parents of unemancipated, unmarried minor children. Documents specifically authorizing visitation are rare (I've never seen one in real life outside a civil union of a same sex couple), although states with "civil union" laws enacted before same sex marriage was legalized, often expressly afford a civil union partner visitation rates with priority over other family in hospitals, despite the fact that the status quo law is often ill defined. Hospital policies that denied visitation to de facto civil union partners were an important driving force in causing civil union legislation to be adopted with the support of legislators who didn't have a strong feeling about gay rights as an overall matter and who were otherwise indifferent to the economic rights of civil union matters but adopted the rights of married couples because it was the mindless default way to adopt a body of pre-existing law with little serious thought or fact rich informed deliberation. This is, in part, because visitation is not a matter over which a patient at a hospital has unilateral decision making power. Hospitals generally have their own policies regarding visits to patients. See, e.g.,, discussing the University of Maryland's hospital visitation policy. Usually, a hospital will honor a patient's reasonable request to not allow someone to visit them (out of general respect for patient autonomy). But, a hospital will often decline to allow a patient to have visitors out of concern for the best interests of the health of the patient even when a patient would like to have a visitor (e.g. a hospital would often refuse to allow someone with a recent positive COVID-19 test to enter an Intensive Care Unit (ICU) even if the patient would like to visit that person). Even here, however, the conceptual foundation behind traditional hospital practices related to visitation have shifted. The modern view is to more strongly respect the personal autonomy interests of a hospital patient than hospitals did in the past (the trend started to shift more strongly to a patient autonomy mindset in the late 1950s and gradually shifted toward greater patient autonomy in that time frame, particularly, following the deinstitutionalization of the mentally ill). Hospitals are loathe to create a situation where their express statutory, contractual, and/or common law authority to regulate visitation could be overridden by a patient, and laws related to hospital visitation are rarely adopted by a legislature over the objection of the hospital lobby. What legal authorization form(s) can person A fill out and provide to B and C so that they get precedence in medical decision-making authority over E? Many hospitals would give E priority over B and C and D in making medical decisions for A, if A is incapacitated and there are no court orders or legal documents that provide otherwise, as a matter of policy. And, these policies are often traceable to the mindset associated with the old common law rules that no legal have binding legal effect. But some states have a scheme in which the hospital makes unilateral decisions in the best interests of the patient as they see it, unless B, C, D and E (and possibly other people designated by mutual agreement) jointly agree on who should make those decisions. See, e.g., Colorado Revised Statutes § 15-18.5-103 (Proxy decision-makers for medical treatment authorized--definitions). On paper, Colorado is such a state, although in practice, a hospital would offer listen to a spouse over other family anyway. I don't know if Maryland is such a state. I could not easily locate any statute in Maryland governing medical decision-making authority for an incompetent patient in the absence of a health care power of attorney or the equivalent or a guardianship proceeding, although my search was not exhaustive. A document commonly known either as a medical power of attorney, or a health care power of attorney, or a health care proxy designation made by a competent person who does not have a legal guardian appointed for them at the time, can designate someone such as B and C to have priority over E in making medical decisions for them. This document would be controlling absent a court order to the contrary, and usually a court would give authority to the person named in that document (although a court is almost never required to do so without regard to the suitability of the person seeking court ordered decision making power). | In general property owners and employers can impose any rules on their property and employees (respectively) that are not prohibited by law. Granted, there are extensive statutes and regulations to protect "employee rights." I have not heard of protections that include "possession of prescribed medications," but that does not mean they don't exist in your jurisdiction. If you really want to know whether you have a legal right as an employee, and you can't find it in written law or regulation, you would have to consult regulators or employment law attorneys in your jurisdiction. (As a practical matter, of course, it might make sense to first find out whether one's employer wants to assert a policy infringing the right in question.) | Either party can petition the appropriate court for an adjudication of paternity (if this has not already been established in connection with the issuance of the birth certificate), and for a parental responsibility and child support order, at any time, if no such order is in place (assuming that Pennsylvania is the "home state" of the child and venue is proper). Child custody and visitation rights are determined based upon the "best interests of the child" with very little other formal guidance from the statute or even case law which also affords a judge very broad, although not unlimited discretion in resolving the issue if the parents don't reach an agreement. Any parent who is not adjudicated to be "unfit" (whose parental rights would then be terminated), is entitled to some reasonable visitation under the circumstances at a minimum. In practice, courts tend to prefer to enter an order that preserves the pre-litigation status quo is one was established for any reasonable length of time. Once a custody and visitation schedule are established (logically, this is actually done contemporaneously), a child support award is also entered based upon the number of nights per year that the child spends with each parent, the income of each parent, and the extraordinary expenses, if any of the child, pursuant to guidelines that exist under state law but are federally mandated. Generally speaking, child support payments are quite small relative to the incomes of the parties. If a parent is willfully refusing to work or underemployed so as to reduce child support, in some circumstances, income that could have been earned is imputed to that parent for purposes of determining the appropriate amount of child support. There is a small body of civil procedure that goes to the nitty gritty of how this is handled after a petition is filed, but that really goes beyond the scope of the question. In the simplest case, only the two parents are involved in the litigation. But, there are circumstances in which there can be other parties. For example, if the child has been supported by welfare, a representative of the state is a party to make sure that child support is paid reducing the need for welfare payments or repaying welfare payments already made by the state. Guardians of an un-empancipated minor or disabled parent might participate. Grandparents can sometimes have standing to participate. A non-parent who has physical custody of the child would usually have standing to participate. This all gets a little technical, and since the question doesn't suggest any facts that would call for additional parties, I will leave it at that. In the event of a substantial change of circumstances after a statutory period after the last order was entered, a court may start over, more or less from scratch, and establish a modified child custody, visitation and child support order that reflects the changed circumstances. As a practical matter, for parents who are separated from shortly after the birth of a child and can't work things out between themselves, there will probably be several to half a dozen modification proceedings until the child is an adult. | You're asking about what is generally referred to as the "joint-participant exception." In the United States, the answer varies from jurisdiction to jurisdiction, as each state sets its own rules on which communications are privileged and which are not. Even in the federal courts, where the law should be relatively consistent, there is some disagreement on this question. After the Tenth Circuit recognized the exception in Trammel v. United States, 445 U.S. 40, (1980), the Supreme Court gave a vague statement suggesting that the exception does not exist, but it was not clear enough to settle the question. Since then, the Seventh Circuit has said the exception applies, but the First, Second, Third, and Ninth circuits have said it does not. So until the Supreme Court weighs in again, the answer is "it depends where you live." Keep in mind also that what is often referred to as "spousal privilege" actually encompasses two very distinct privileges: (1) the spousal communications privilege, which is a defendant's right to block testimony about his statements to his spouse; and (2) the spousal testimonial privilege, which is a witness's right to refuse to testify against his spouse. It may be that in some jurisdictions, the joint-participant exception applies to one but not the other. | It is generally understood that governments do have the right to quarantine citizens in case of epidemic outbreaks. In nations with a rule of law, the extent of quarantine regulations may be challenged in court. A challenge against the app has been filed, and trying to second-guess the court by reading sections of the constitution seems to be pointless. | The applicable state law is here. Section 461-A:2 guides the interpretation of the chapter: I. Because children do best when both parents have a stable and meaningful involvement in their lives, it is the policy of this state, unless it is clearly shown that in a particular case it is detrimental to a child, to: (a) Support frequent and continuing contact between each child and both parents. (b) Encourage parents to share in the rights and responsibilities of raising their children after the parents have separated or divorced. (c) Encourage parents to develop their own parenting plan with the assistance of legal and mediation professionals, unless there is evidence of domestic violence, child abuse, or neglect. (d) Grant parents and courts the widest discretion in developing a parenting plan. (e) Consider both the best interests of the child in light of the factors listed in RSA 461-A:6 and the safety of the parties in developing a parenting plan. II. This chapter shall be construed so as to promote the policy stated in this section. The law gets no more specific than to refer to the fact of being a parent. The law does not favor males over females, or vice versa, and the law does not discriminate between a parent who is a minor versus a parent who is a legal adult. The rights of parents are equal, ab initio. However, the recognition of the rights of a father does depend on the legal establishment of paternity whereas the law takes maternity to be self-evident. This may have been dealt with at birth, or may require a legal process if paternity is contested. If that part is sorted out, then disagreements about custody etc. which can't be worked out through agreement possibly with a mediator can be resolved in court. The court will determine what constitutes the "best interests of the child". That is all there is to it, legally. That does not mean that a judge making a decision is absolutely immune from thinking that the minor father is less able take care of the child. Starting next year, a minor can seek emancipation, but until then (and until there is emancipation), the minor's parent have veto power over the father's wishes. | A trust, revocable or irrevocable, does not protect the estate from claims by creditors. Under ORS 115.125(1)(k), the Department of Human Services or the Oregon Health Authority has a claim against the estate, behind the claim for "the state’s monthly contribution to the federal government to defray the costs of outpatient prescription drug coverage provided to a person who is eligible for Medicare Part D prescription drug coverage and who receives benefits under the state medical assistance program or Title XIX of the Social Security Act" (which is item (j)) and ahead of only the claim by the Department of Corrections for care and maintenance of any decedent who was at a state institution – that one is dead-last in the list of statutorily-listed claims. | Note that I am not a lawyer. All law code here is from the official Georgia Law at LexisNexis. In the case of Georgia, the law regarding a child’s election changed in 2008. Prior to 2008, a 14 year old child could choose with which parent to live, unless the judge determined that the chosen parent is unfit. As proving that a parent is unfit was not always easy, the Georgia General Assembly in 2008 replaced the unfit parent standard with a Best Interests of the Child Standard. This new standard provides more flexibility to the judge in determining custody. Some basic facts about how the law in relation to the child's selection of parent: A parent that wishes to modify an existing custody arrangement must show that a material change in circumstances has occurred that warrants a new decision by the court. If the child is 14 then the child's desire to select the parent may be considered as the "material change in circumstances". However the court will only consider the child's choice if at least two years have passed since the last custody determination. These aspects of the law can be seen in Georgia statute 19-9-3, article 5, which states: (5) In all custody cases in which the child has reached the age of 14 years, the child shall have the right to select the parent with whom he or she desires to live. The child's selection for purposes of custody shall be presumptive unless the parent so selected is determined not to be in the best interests of the child. The parental selection by a child who has reached the age of 14 may, in and of itself, constitute a material change of condition or circumstance in any action seeking a modification or change in the custody of that child; provided, however, that such selection may only be made once within a period of two years from the date of the previous selection and the best interests of the child standard shall apply. Note that the expression "The child's selection for purposes of custody shall be presumptive unless..." is the same as saying that "the child's selection shall be controlling (the decision) unless...". As to children that are between 11 and 14 the law states as follows (Georgia statute 19-9-3, article 6) (6) In all custody cases in which the child has reached the age of 11 but not 14 years, the judge shall consider the desires and educational needs of the child in determining which parent shall have custody. The judge shall have complete discretion in making this determination, and the child's desires shall not be controlling. The judge shall further have broad discretion as to how the child's desires are to be considered, including through the report of a guardian ad litem. The best interests of the child standard shall be controlling. The parental selection of a child who has reached the age of 11 but not 14 years shall not, in and of itself, constitute a material change of condition or circumstance in any action seeking a modification or change in the custody of that child. The judge may issue an order granting temporary custody to the selected parent for a trial period not to exceed six months regarding the custody of a child who has reached the age of 11 but not 14 years where the judge hearing the case determines such a temporary order is appropriate. (Note that a "guardian ad litem" is the same as a "legal guardian".) If the child is younger than 11, there is no expectation for the judge to consider the child’s preference when awarding custody. Besides the desire of the child, the judge may consider following factors listed under Georgia statute 19-9-3, article 3: (3) In determining the best interests of the child, the judge may consider any relevant factor including, but not limited to: (A) The love, affection, bonding, and emotional ties existing between each parent and the child; (B) The love, affection, bonding, and emotional ties existing between the child and his or her siblings, half siblings, and stepsiblings and the residence of such other children; (C) The capacity and disposition of each parent to give the child love, affection, and guidance and to continue the education and rearing of the child; (D) Each parent's knowledge and familiarity of the child and the child's needs; (E) The capacity and disposition of each parent to provide the child with food, clothing, medical care, day-to-day needs, and other necessary basic care, with consideration made for the potential payment of child support by the other parent; (F) The home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors; (G) The importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity; (H) The stability of the family unit of each of the parents and the presence or absence of each parent's support systems within the community to benefit the child; (I) The mental and physical health of each parent; (J) Each parent's involvement, or lack thereof, in the child's educational, social, and extracurricular activities; (K) Each parent's employment schedule and the related flexibility or limitations, if any, of a parent to care for the child; (L) The home, school, and community record and history of the child, as well as any health or educational special needs of the child; (M) Each parent's past performance and relative abilities for future performance of parenting responsibilities; (N) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child; (O) Any recommendation by a court appointed custody evaluator or guardian ad litem; (P) Any evidence of family violence or sexual, mental, or physical child abuse or criminal history of either parent; and (Q) Any evidence of substance abuse by either parent. |
Are DAs and other prosecutors prohibited from being defense attorneys, such as in a pro bono fashion? If you're a lawyer accepting a job at a DA's office or if you otherwise become a prosecutor, would you be prevented from privately representing clients as a criminal defense attorney? For example, could you ever do pro bono work for a client on your own time, or is such prohibited/strongly regulated for the duration of your time as a prosecutor? My research has found answers varying from "No," to, "No if defending someone in the same district for which you work." For reference, I'm wondering about U.S. jurisdictions and would be interested in hearing how the answer may vary by state. Also, while pro bono work is the focus of my question, I'd also be interested in knowing whether the answer changes when money's involved. | Most prosecuting attorney positions in a District Attorney, or State Attorney General's office are full time salaries positions that prohibit individuals holding those positions from having any other legal employment. They are also, often, conceptually a division of state government, even if the DA is locally elected. So, any criminal defense engagement in the same state court system would also be a conflict of interest, and the reality of joint task forces discussed below would also make almost any federal case criminal defense engagement in the same state a conflict of interest in most cases because state prosecutors would gain confidential information about pending federal criminal prosecutions (and vice versa). In theory, a criminal defense engagement in the next state over, for example, say, in Gary, Indiana for a prosecutor employed in Chicago, Illinois, would not be a conflict of interest, but it would still be prohibited in most cases because the prosecutor is a full time salaried employee whose full efforts are required to be devote to that position. (In practice, de minimis civil transactional work for the assistance of friends and family members, even for a small fee, or representation of such persons in small civil lawsuits would probably be tolerated, however, and maybe even a defense of a civil ordinance violation like a traffic ticket brought by a separate local government as discussed below, for a friend or family member for free, might be tolerated.) Local governments such as cities, towns, and counties, however, sometime have an office separate from the DA's office or State Attorney General's office often called a city attorney, town attorney, or county attorney, who works part-time on a contract basis for that government and has limited authority to prosecution violations of that local government's own ordinances in the name of that governmental entity, rather than on behalf of the People as part of the state government. In those cases, it is generally ethically permissible for the city attorney (for example) to serve as a criminal defense attorney in cases outside that city that do not otherwise pose a conflict of interest from having been adverse to various criminal defendants in the city attorney role. But there might be a conflict of interest, if, for example, there was a joint task force of the city attorney, the local DA, and the federal assistant U.S. attorney to prosecute people in a coordinated fashion on federal, state and local charges of various kinds, in connection with a rash of gun violence. And, if one of the city attorney's clients were arrested for an ordinance violation in the city, a non-conflicted counsel would have to be retained by the city for that case. Often, in those cases, however, even though it is not a prohibited conflict of interest, the lawyers involved would view a criminal defense representation as a "business development conflict" that would risk non-renewal of the city/town/county attorney position if undertaken. Incidentally, government attorneys, unlike almost all other government employees, are usually employees at will, as a matter of legal professional ethics, unlike almost all other fixed term contract or civil service employees, even if they have other contractual or civil service employee rights. | It's no fantastic legal source, and rules may vary in different countries, but from the Wikipedia article on Attorney client privilege: Lawyers may also breach the duty where they are defending themselves against disciplinary or legal proceedings. A client who initiates proceedings against a lawyer effectively waives rights to confidentiality. This is justified on grounds of procedural fairness—a lawyer unable to reveal information relating to the retainer would be unable to defend themselves against such action. In other words, if the client's lie is related to one of the lawyer's interests (for example, if the client sues the attorney for malpractice based on the advice he was given), the lawyer can break privilege on his own behalf, thus testifying that his client lied. As to the specific case you brought up, I would say that privilege wouldn't protect the client from the lawyer discussing things never brought up. In other words, we could force the attorney to testify, since one of two things is true: The attorney really did give him that advice, in which case the client has already voluntarily given up his right to confidentiality by describing what was said between them, or The lawyer never gave him that advice, and privilege wouldn't protect a conversation between the two that never transpired. | Suborning perjury is a criminal offense, at the federal level under 18 USC 1622, and is especially bad for a law firm to do. An attorney has a duty to not allow a client to lie in a legal proceeding, so instructing a client to lie is worse. Legally speaking, you are not compelled to turn them in to the (local US) authorities, unless your country has some odd law requiring citizens to report crimes in foreign countries. Two things can possibly come out of forwarding such an email to the authorities. One is that they will gain access to privileged communication, which they may not be able to use against the client. The other is that they will have evidence of the attorney committing a crime, which is not privileged. See Clark v. United States, 289 U.S. 1: There is a privilege protecting communications between attorney and client. The privilege takes flight if the relation is abused. A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told. We take no stance on moral questions as to whether you should or should not. | This is a question of civil procedure more so than law. The customs and practices of civil procedure are established by legal precedent, not laws made by legislatures. In general, a witness can answer a question however they want as long as it is responsive to the question. Litigators will attempt to bully a witness into certain types of answers, but this is not "illegal" nor is it "illegal" for witnesses to craft their answers as they like. As for yes-no bullying there are two general cases: (1) The question is factual. If the questioner asks a purely factual question, like "Did you go to the factory on that Tuesday?" then a yes-no answer can be compelled. If the witness tries to explain why he went to the factory, or something, then he can be cut off, because he is being unresponsive. (2) The question is hypothetical. If the question is hypothetical or suppositional, then the witness can reject the question. For example, if the question, "You told your boss that you hated your wife, isn't that right?" In this case the witness can answer, "I reject the question, the prosecutor is putting words in my mouth." or can say "I resent the implication." or "That does not accurately reflect what happened." or whatever. Any time a question "paints a picture" or establishes something hypothetical and simply asks the witness to agree with the fantasy scenario, the witness can refuse to answer, or can answer with a counter scenario which they consider to be more accurate. I would add that in case (2) where a questioner tries to paint a false scenario, it is a risky move, because it opens the door for the witness to say whatever they want. For example, imagine this exchange in the courtroom: Prosecutor: "You told your boss that you hate your wife, isn't that right?" Witness: "What actually happened is..." Prosecutor: "That is a yes or no question, answer yes or no." Witness (to judge): "Your honor, the question mischaracterizes the conversation I had with my boss, I want to explain what actually was said." Judge: "The witness may proceed with his answer." Prosecutor: "I withdraw the question." Defender: "The prosecution has opened the door, let the witness answer." Judge: "The witness will answer the question." So, now the witness has permission to answer however he likes, and the prosecutor has blundered by making a vague question that created the situation where that was possible. The main thing a witness has to do is not try to say irrelevant things or try to add information beyond what was asked for, in that case the questioner can cut them off. | new-zealand is it a requirement have citizenship of that country in order to be eligible for a position of a judge or a prosecutor? No. Technically, you don't even need to be a permanent resident — you can be just on a temporary work visa. However, while that practically won't pose a problem to become a prosecutor, it may well be de-facto impediment to become a judge. Whereas the eligibility requirements for judges (District Court, Senior Courts) say nothing about citizenship, practically who becomes a judge is decided just by one person — the Attorney-General, whose head is not transparent and who knows what considerations are entertained in it. Prosecutors in NZ can be split into 3 categories: Crown prosecutors — lawyers working for the Crown. Just become a lawyer and get a job at the Crown office. This is how many defence lawyers start their careers — get experience putting people in jail on behalf of the Crown, then jump on the other side and make heaps of money by keeping them out of jail. Eventually you may be invited to be a judge; Other public prosecutors — not necessarily even lawyers — Police, Ministry for Children, Work Safe, local governments/councils etc. If not lawyers, they still can conduct judge-alone/bench (not jury) trials; Private prosecutors. Any lawyer can do this for their clients. (In fact, just anybody can be a private prosecutor for themselves, but this is not a paid job of course). | Despite the lengthy background, the only question seems to be: Can a police officer lie about a consequence of a traffic violation they charge you with? As a matter of constitutional law in the United States, that answer is generally "yes." States can impose more limitations if they like. Only a small minority of states actually do so. Incidentally, an attorney, such as a deputy district attorney, is not allowed to lie about the consequences of a traffic violation, or anything else (even in extreme circumstances like a hostage situation). This violates the rules of professional conduct applicable to all attorneys. This sounds like a classic "driving while black" situation and is probably involves unconstitutional discrimination by a government official, although proving that in an individual case is virtually impossible. | The Rules of Professional Conduct apply only to lawyers and are the foundation for a lawyer to be suspended from the practice of law or disbarred or receive other license related professional discipline. They are neither criminal offenses, nor on their own, a grounds for a civil lawsuit (although they may be relevant to an element of a civil cause of action giving rise to a lawsuit). The Rules of Professional Conduct also prohibit using a non-lawyer as a sock puppet to violate the Rules of Professional Conduct. But, the Rules of Professional Conduct themselves are not applicable to pro se parties or even to non-lawyer parties who are acting fully independently of the lawyers they have retained. In some circumstances, a violation of Rule of Professional Conduct 3.4(g) could also constitute the crime of extortion, or could constitute duress such that an action taken in the course of litigation or a business deal is not actually legally considered to be voluntary and making it potentially voidable. But this would not always, or necessarily even usually, be the case. Incidentally, Rule of Professional Conduct 3.4 is one of the Rules of Professional Conduct with the most state to state substantive variations and it also has multiple differing interpretations even in cases where the language is verbatim identical between states. The appropriate scope of this rule as a matter of policy is one of considerable controversy. And, it isn't unusual for the converse to happen (i.e. for a criminal prosecutor or an attorney regulation system official to force the hand of a civil litigant in the course of negotiations about those charges). | There isn't a general answer to this question. It needs to be evaluated incident and sub-incident act by sub-incident act. The use of force is legally permitted to prevent harm to others and to the property of others under some circumstances. Citizens arrests are permitted under some circumstances, but generally, the person making the arrest must have personal knowledge of the crime while it is in the process of being committed. Some laws prohibit wearing masks under some circumstances, but usually not in all circumstances. Your client's "business model" is not consistent with being able to testify in court, so the criminal justice system will only be able to convict someone whom your client delivers to police if they can do so without your testimony. As a general rule, the 4th Amendment exclusionary rule does not apply to evidence collected by private parties or to statements obtained by private parties that are not made under duress that are not Mirandized. But, if your client is effectively "deputized" or becomes a "de facto" agent of the state who is called up to be a member of a posse for the police, for example, by using an agreed symbol such as shining a light with a symbol on it on some clouds, at that point, with respect to that matter, the 4th Amendment exclusionary rule and Miranda probably do apply to evidence that your client obtains, and exclusion of that kind of evidence could make prosecution much more difficult, unless the prosecution can successfully make an argument that the other evidence that the illegally obtained evidence leads them to is not "fruit of the poisonous tree" because it would have inevitably been discovered in due course using only the legally obtained evidence. Even if your client does violate the law, law enforcement is not obligated to investigate his alleged crimes even if the victims complain, and prosecutors are not obligated to prosecute those crimes, even if they have overwhelming evidence of guilt which they could use to secure a conviction. Prosecutorial discretion is basically absolute. Your client might be sued civilly for operating a corrupt enterprise under RICO, for various intentional torts, and for negligence, by people who think that they have been harmed by his conduct, but someone can only sue your client if they can figure out who he is and serve him with civil process. If you are helping your client conduct on ongoing criminal enterprise, whether or not the crimes are prosecuted by the criminal justice system, the attorney-client privilege you have with your client is probably forfeit should you be placed under a subpoena and your may be violating other ethical rules. But, of course, somebody has to figure out that you are part of this criminal enterprise before you suffer any consequences for being involved. |
Kirtsaeng and books from the UK marked "not for sale in the U.S.A." Many older books printed for the UK market (most notably The Great Gatsby) had text on the back cover resembling the following: For copyright reasons this book is not for sale in the U.S.A. Under Kirtsaeng v. John Wiley, I'm pretty sure this has no legal meaning in the US any more, but I have some questions: What was the historical basis for this notice? Is this notice indeed legally void in the United States under Kirtsaeng (assuming the book was lawfully acquired in the UK or its territories)? In other works, could I legally sell such a book in the US? | When an author writes a book, it is frequently licensed to one company in the United States and another company in the U.K. If the publishing company Bathroom Books gets permission to print and sell the books pursuant to a license from the author in the U.S., that contract will usually include a non-compete clause that prohibits Bathroom Books from selling books it prints to retail customers in the U.K. or to wholesale customer that intend to sell the books at retail in the U.K., where the permission to print and sell the books pursuant to a license from the author has been granted to WC Books (and vice versa). The clauses are about enforcing the peace between distributors given different territories, because different publishers have better sales networks in different places. The first sale doctrine, clarified for purposes of U.S. copyright law in Kirtsaeng v. John Wiley, makes the "not for sale in the U.S." language inapplicable under U.S. law to a consumer who purchases the book in the U.S. and then resells it used to someone in the U.S. Whether it bars someone who purchased the books on a wholesale basis in the U.K. from reselling the books in the U.S. depends to some extent on the nature of the contract between the wholesaler and the publisher. For example, if the wholesaler is selling the books on a consignment basis for the publisher and has a right to return the unsold books without payment to the publisher and doesn't have to pay for the books sold until they are sold at retail, the first sale doctrine likewise does not apply. It also isn't entirely obvious that the "first sale doctrine" makes it illegal to count U.S. sales towards the amount due to the U.S. publisher rather than the U.K. publisher, even if they are sold by WB Books instead of Bathroom Books. (Re the faux names of the publishers, one of the first books I every handled copyright and licensing for, a year out of law school, involved bathroom humor.) Also, if the case ends up in a U.K. court before it reaches a U.S. court, the first sale doctrine may or may not apply, but Kirtsaeng v. John Wiley will not be binding precedent, so the applicable rule of law might be different. And, it isn't hard to write a binding forum selection clause that insures that the case would be resolved in a U.K. court rather than a U.S. court if the law in the U.K. were more favorable. | Yes The US constitution is in the public domain. Anyone may publish a version of it, including an altered version. No US law forbidding publication of an altered version would itself be constitutional -- the First Amendment would prevent such a law. However, if an altered version were sold under such conditions that a customer might reasonably believe it to be an unaltered version, that might be false advertising, or perhaps fraud, because the seller would be deceiving the customer as to what the product is. | 17 USC 105 provides that: (a) In General.—Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise. Under 17 USC 101: A “work of the United States Government” is a work prepared by an officer or employee of the United States Government as part of that person’s official duties. However under 17 USC 105 (b): Subject to subsection (c), the covered author of a covered work owns the copyright to that covered work. The definitions section of section 105 provides that "covered authors " are faculty members at any of 12 specified institutes, academies, colleges, and universities run by the Federal Government, and "covered works" are any textual works created by covered authors. Thus to be free of copyright under section 105, a work must have been created by "an officer or employee of the United States Federal Government as part of that person’s official duties." and not by a faculty member at any of the institutions listed in 105 (d). 17 USC 105 does not apply to works by the various US state governments, nor to contractors hired by the US Federal government. Works that are free of copyright under section 105 are in the public domain under US law, and may lawfully be used in any way at all, but it is widely considered unethical, although not unlawful, to fail to credit the source of such works, or indeed of older works long out of copyright protection. Note that such works could be protected under the laws of other countries, and such copyrights may apply outside the US. Just because an image or text is published by a US government agency does not waive copyright, nor does the absence of a copyright notice. (Under the Berne Convention a copyright notice cannot be required for protection, and US law implements this in 17 USC 401 (a) which provides that a notice may be present.) The web page linked in the question above includes the statement: Video contributed by Dr. Marcelo Saba, National Institute for Space Research, Brazil This strongly implies that Dr Saba owns the copyright, although it does not prove that. It might be owned by the Institute, or some other employee of the Institute. But Dr Saba could probably indicate who does own the copyright, and on what terms if any the image may be used. When content is protected by copyright, a license to reproduce that content must normally be explicitly stated. The US Freedom of Information Act (FoI) has nothing to do with providing such licenses. It does not matter under US law whether the person wanting to reuse content is a citizen or resident of the US or not, the rules are the same for all. However, US government works may be protected outside the US. It is the location of use, not the nationality of the person using them, that will matter. | First, copyright means that permission from the author is generally required. The courts find three sorts of such permission: direct author-to-recipient explicit licensing (typical in the case of a book author to publisher relation), indirect licensing arising from platform usage (in using Stackexchange, you probably unknowingly click-agreed to allow me and everybody else to copy and redistribute your creations), and implicit licensing – where permission to use is reasonably inferrable, though not explicitly stated. Since the latter doesn't involve written-out statements of the conditions under which you are licensed to copy text, the courts don't rely heavily on implicit licensing. But implicit licensing is what makes it possible to legally read a web page without first signing an agreement. If we assume in your scenario that the author is fully aware that their responses are automatically distributed to various servers, then even in lieu of a platform license, an implicit license can be found. Second, irrespective of the desideratum of having permission, one is in the US allowed to copy without permission, for certain purposes known as "fair use". This is a complicated area of legal analysis, where one has to weigh factors such as whether the content is artistic vs. factual, whether your use simply re-propagates vs. makes a comment, whether the use is for profit vs. free and educational, and whether the use has a negative effect on the market for the original work. | Such works may be considered as copyright infringements under US law. The US does not apply the "rule of the shorter term", and so the PD status of the parent work in some other country,. including the source country, is not relevant. There are, however, other ways for a work to have lost copyright protection under US law, and one of them might apply in a particular case. Also, whether a work is legally a derivative work of another is a fact-based legal question, and the answer is not always as obvious as one might think. The copyright holder of the parent work could file a copyright infringement suit, seeking damages and other relief in a US Federal court. Note that one of the rights that make up copyright is the right to make or authorize the making of derivative works. This ism spelled out in 17 USC 106 item (2) "to prepare derivative works based upon the copyrighted work;" I am not sure of the rules for customs seizure of allegedly infringing works. I thin k that only works already adjudged to be infringing are seized, pursuant to a court order, but I am not sure of that. II do not see how the customs service would determine the disputable issues mentioned above. For the matter of that, any such work could be authorized by permission from the copyright holder, and I don't see how customs would know if there had been such permission granted. Added citations: 17 USC 503 says: (a)(1) At any time while an action under this title is pending, the court may order the impounding, on such terms as it may deem reasonable (A) of all copies or phonorecords claimed to have been made or used in violation of the exclusive right of the copyright owner; ... (b) As part of a final judgment or decree, the court may order the destruction or other reasonable disposition of all copies or phonorecords found to have been made or used in violation of the copyright owner’s exclusive rights, ... 17 USC 602 provides that: (a) (2) Importation or exportation of infringing items.—Importation into the United States or exportation from the United States, without the authority of the owner of copyright under this title, of copies or phonorecords, the making of which either constituted an infringement of copyright, or which would have constituted an infringement of copyright if this title had been applicable, is an infringement of the exclusive right to distribute copies or phonorecords under section 106, actionable under sections 501 and 506. ... (b) Import Prohibition.—In a case where the making of the copies or phonorecords would have constituted an infringement of copyright if this title had been applicable, their importation is prohibited. In a case where the copies or phonorecords were lawfully made, the United States Customs and Border Protection Service has no authority to prevent their importation. In either case, the Secretary of the Treasury is authorized to prescribe, by regulation, a procedure under which any person claiming an interest in the copyright in a particular work may, upon payment of a specified fee, be entitled to notification by the United States Customs and Border Protection Service of the importation of articles that appear to be copies or phonorecords of the work. It appears that copies of an infringing work may be seized. but only by court order. It appears that import of an allegedly infringing work may be prohibited, but not when copies were lawfully made. But such imports may be reported to the claimant, who can then take appropriate legal action. | It's questionable, because if you design your own visual interpretation of the T-Shirt then it isn't necessarily the one from the book and thus your art has it's own copyright. However, if the current Copyright Holder and Possible Trademark owner is selling the shirt it could be an issue because yours is not official but being sold as one. If you're making it for non-sale and just cosplay, than you have a better arguement. | There is no general prohibition against taking down material, even non-infringing material, which is posted by some person, but there is a risk to the service provider. Abstracting away from the specifics of github, a Provider has some agreement with the User whereby User rightfully makes Stuff available on Provider's site. Arbitrarily removing Stuff (in violation of the usage agreement) may cause damage to User, who may sue Provider, and Provider will avoid that if possible. DMCA protects Provider from copyright infringement suits by Victim, providing the proper DMCA procedure is followed, and it allows Provider to remove Stuff without fear of getting sued by User (17 USC 512(g)). This protection is not available if the takedown notice is not proper. (As a case in point, the entire series of Harry Potter books is still out there freely on the internet, because only the rights holder can demand a takedown, and the rights holder seems to not be concerned). | Since the effective date of the US 1976 Copyright act, a copyright notice is not required at all on works published in the US, nor is it required on works published in any other country that adheres to the Berne Convention (which is adhered to by almsot every country in the world at this time). A copyright notice, if present, may specify a pseudonym, a business name, or a form of the author's name other than his or her legal name. The validity of the copyright does not depend on the name in the notice. This is true in all Berne Convention countries. Even under the 1909 US copyright law, when a notice was required for protection, the exact form of the name used was not important, and pseudonyms and variant forms were permitted, as well as DBA names, which might not be easy to associate with the actual copyright holder. Nor do I know of any other country in which an error in the name in the notice would invalidate the copyright. Aside from people changing names, a copyright can be sold or otherwise transferred. This does not require changing the copyright notice to reflect the changed ownership of the copyright, although it is often done with new versions or printings. The name on a copyright notice is at best suggestive or helpful; it does not define the owner. |
Why don't Nordic countries have codes of private law? I'm aware that there are some major differences between Scandinavian law systems and other European systems, e.g., the fact that Roman Law had very little influence in Scandinavian countries. But why has the idea of a general civil code like the BGB or the Code Civil been rejected? Why resort to case law or legal doctrine instead, considering that, in many EU countries, they aren't even considered sources of law? | Sweden and most of the other Scandinavian countries once had a civil code based upon the Civil Code of 1734. Generally speaking, this code is in turn derived from the German Civil Code (as opposed to the French Civil Code), which is written in a more carefully defined, lawyer oriented manner than the French Civil Code which sought to be written in common French for use by the ordinary French citizen. In general, Scandinavian law is originally quite similar to the German law upon which it was modeled, and the systems have continued to influence each other intellectually. For example, Scandinavians followed the lead of the Germans (or vice versa) in adopting "day-fines" as a major means of criminal punishment in the time period following World War II. Both the French and German civil codes, in turn, were derived from Roman law. But, at some point prior to the end of World War II, the Scandinavians departed from the German model substantially. All civil law jurisdictions resort to doctrine from legal treatises as a major source of authority and the Scandinavians are no exception. Leading law professors in civil law countries have an influence on how the law is interpreted comparable to that of leading appellate court justices in common law countries. But, unlike other civil law countries, Scandinavians rely upon case law more than Continental Europeans do as binding authority in the form of judge made law. It appears that the typical Continental European pattern that was in place at one point in Sweden's modern history has been supplanted by a system that does indeed give more weight to case law and is more systematic. This European Commission source confirms this account in the private international law context, stating: Private international law in Sweden is codified only in part, and consists of a combination of statute and case law. The statute law is for the most part aimed at giving effect to international conventions to which Sweden is a party. This book, however, notes that Sweden is in the process of drafting a more comprehensive and systematic civil code for itself and made significant progress towards that goal with a 2009 report, in furtherance of the goal of better harmonizing the private law of EU and EFTA members. The very thin Wikipedia article in English on the Law of Sweden, upon which I relied, appears to be inaccurate, or at least, misleading, on the key points. Based upon your comments and the information gathered while updating this answer, I have updated the Law of Sweden article to make it more accurate. It isn't clear from sources available to me, however, precisely when Sweden began to deviate from the German model other than to say that it was sometime well after 1734 CE and was not later than the end of World War II, which as a two century range admittedly isn't very specific. Skimming the material, a lot of the reforms apparently take place in the late 20th century. The scholar in the linked power point presentation suggests that Sweden's legal system is neither in the Civil Law tradition nor the Common Law tradition, contrary to my understanding until your comments brought more information to my attention. Not having my histories of Sweden or Finland easily at hand, it is hard to tell how or why this happened. But, I appreciate your comments and question which have brought this information to my attention and would strongly suggest that you prepare an answer of your own as you appear to be very knowledgable about the details of Swedish law and may be better equipped than I to get to the bottom of the question. This journal article discussing the Swedish tort statute adopted in 1972 suggests that following World War II there was a concerted international effort of the Scandinavian countries to engage in legal cooperation producing more or less uniform laws in the region related to private law with tort law high on the agenda for reform and homogenization although turning that into concrete legislation apparently took 27 years and many commissions and negotiations. | Why is a business allowed to refuse a customer? Because also freedom of contract is a right. Except for discrimination on the basis of protected categories, a person or entity is entitled to discretion on whether or with whom to do business and enter contracts. The last sentence in your post reflects a misconception of "completely different set of values and laws" between the USA and members of the EU. Clearly there are many differences, but a comparison of the Wikipedia link you posted and, for instance, 42 U.S.C. § 2000e-2 reflects an overlap of protected categories in the laws of the Netherlands and of the US, such as religion, sex, race, or national origin/nationality. One would need persuasive evidence to support a finding of unlawful discrimination in the two examples you have experienced. Assuming the bank responded to your GDPR inquiry truthfully, the bank's refusal to open an account might have stemmed from profiling or decision-making that (1) does not precisely require specific data about you, and/or (2) uses information the bank does not need to log for purposes of compliance with the GDPR. Note that the GDPR does not outlaw algorithmic decision-making. Since legislation in the EU (as in the US) portrays an approach of market economy, both bank and landlord are entitled to made decisions on the basis of their inner policies for risk management. The policies might be unclear to you, but that does not necessarily mean they contravene principles of equal opportunity. | If it’s your pizza, yes The civil equivalent of theft is the tort of conversion, “consisting of "taking with the intent of exercising over the chattel an ownership inconsistent with the real owner's right of possession". In England & Wales, it is a tort of strict liability.” | It does not need to be expressly defined in statute in order to be legally effective. Courts have no trouble interpreting ordinary words used in their conventional way. And there is no other definition that could work instead, considering the full body of law that (1) intends to apply to the whole of the United Kingdom, (2) often distinguishes between "Great Britain" and "Northern Ireland", (3) often distinguishes between "England", "Wales", "Scotland" and "Northern Ireland", (4) treats "Great Britain" as synonymous with England, Wales and Scotland, and (5) often uses "Great Britain" without further ceremony, as if it's a term that doesn't need to be explained. It is helpful that legislation (at least in the modern era) is consistent about the view that "Great Britain" refers precisely to England, Wales and Scotland all together. By virtue of the Interpretation Act 1978, "United Kingdom" means Great Britain and Northern Ireland. from which we may deduce immediately that Great Britain means the United Kingdom except for Northern Ireland. There is no sibling '"Great Britain" means...' clause, but construing it any other way than the normal meaning would not work. From the combined definitions of "England", "Wales", "British Islands", etc. - which by reference, also deal with such historically doubtful areas as Berwick and Monmouthshire - there is no other way to interpret the term "Great Britain" without distorting the required meaning of "United Kingdom". Including too much or too little in "Great Britain" would give the wrong result, in particular for statutory extent clauses that refer to the whole United Kingdom and ought not to accidentally leave out Cornwall or include Hanover. We do not need to go as far as the Acts of Union, which is lucky since that would entangle us in concerns about whether "England" includes "Wales", or other historical anomalies that are not relevant in current law. I would treat the Acts of Union as giving added force to the conventional meaning, rather than being the source of that meaning, since there are uses of the term which seem to be more about Great Britain considered as a place than the political entity. For example, the Food Safety Act 1990 s.18(3) talks about "any food which has not previously been used for human consumption in Great Britain", which seems to talk more about the food culture of the place, even predating the Acts of Union, than about the Kingdom of Great Britain or its successors. The term "Great Britain" is frequently used in statutes in the customary way. For example, The Political Parties, Elections and Referendums Act 2000 s.28 creates a "Great Britain register" and a "Northern Ireland register" of political parties, and s.38(1)(3)(b) provides for the "Great Britain register" to cover precisely England, Scotland and Wales. The Northern Ireland Act 1998 s.87 is about provisions of UK social security law that operate differently in Great Britain and Northern Ireland. The Electricity Act 1989 (as amended) provides for the issue of "GB certificates" as opposed to "NI certificates", and also defines "the relevant part of Great Britain" as meaning either "England and Wales" or "Scotland" (s.32M(1)). The Agriculture Act 2020 s.35 provides for a "red meat levy" to be paid between "one country in Great Britain" and "another such country", and goes on in 35(8) to list the levy bodies for England, Scotland and Wales. So all of this points to the same common meaning as in everyday life. In court, for example, Lord Hoffman in Serco v Lawson [2006] UKHL 3 had to consider the Employment Rights Act 1996 s.196, since repealed, which governed "work wholly or mainly outside Great Britain". (And by the way, in 196(1)(b) is a listing of "England and Wales" and "Scotland" as the two possible bodies of law relating to Great Britain.) In his judgement, he says: It is true that section 244(1) says that the Act "extends" to England and Wales and Scotland ("Great Britain"). But that means only that it forms part of the law of Great Britain and does not form part of the law of any other territory (like Northern Ireland or the Channel Islands) for which Parliament could have legislated. That is, he does not find it difficult to gloss the extent provision in 244(1), which doesn't include the exact words "Great Britain", as actually referring to Great Britain. Other legislation refers to "Great Britain" as a locale, like the Wild Animals in Circuses Act 2019 which talks about "an animal of a kind which is not commonly domesticated in Great Britain". This is a straightforward reference to the kind of activities typically going on in that location, treating it as the island(s) and not the political entity. The expression does not include the territorial sea, by default; some statutes include it, like the Gas Act 1986 s.5(9) which says: For the purposes of this section a place is within the jurisdiction of Great Britain if it is in Great Britain, in the territorial sea adjacent to Great Britain or in an area designated under section 1(7) of the Continental Shelf Act 1964. There are several other instances of particular statutes defining "Great Britain" to include adjacent waters, but they do not define the core concept of Great Britain otherwise. They do not need to. | The already existing rule 11 penalizes baseless litigation. The modifications in this bill makes sanctions obligatory rather than optional, removes escapes for what would be sanctionable actions, and expands the range of sanctions. The clause in question strikes me as redundant, because existing rule 11(b)(2) says of the action that (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; Without either of these clauses, sanctions could be imposed on a bright guy who comes up with a new legal argument that actually works, which I think is clearly contrary to the intent of the original rule. Such a clause is a way of telling the courts "No, that is not the legislative intent". But the existing rule already covers that outcome. It may be that the added sanction "striking the pleadings, dismissing the suit, or other directives of a non-monetary nature..." was thought to potentially threaten "creative lawyering", but again that seems to be already covered by 11(b)(2). The words "assertion or development of new claims, defenses, or remedies under Federal, State, or local laws, including civil rights laws, or under the Constitution of the United States" differ from "nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law", but they seem to describe the same kind of facts. Perhaps a historical reading of the various versions since 1983, especially related to the advisory committee notes, would reveal more precisely why this is necessary. | No, but the USA is special! In COMPARATIVE LITIGATION RATES from HARVARD, JOHN M. OLIN CENTER FOR LAW, ECONOMICS, AND BUSINESS, the authors J. Mark Ramseyer & Eric B. Rasmusen argue that for routine normal cases, the US is no more or less litigious than anywhere else in the developed world, specifically, they make comparisons with Australia, Canada, France, Japan and the UK. However, they do say: Why, then, the American notoriety? It does not result from the way the legal system handles routine disputes. Instead, it derives from the peculiarly dysfunctional way courts handle several discrete types of disputes. In several discrete areas, American courts function in a manner one can only describe as disastrous. American courts have made the bad name for themselves by mishandling a few peculiar categories of law suits. In this article, we use securities class actions and mass torts to illustrate the phenomenon, but anyone who reads a newspaper could suggest alternatives. This strange and peculiarly American phenomena of courts making huge payouts for a small number of cases skews perception of risk and leads to, for example, US hotels dismantling water slides. | You can always get in trouble. Copyright is always protected by the laws of a particular nation, by the courts of that nation. Because of the Berne Convention and the Universal Copyright Convention, I can sue you outside of my country, and will be treated as a person of that country. The conventions don't say who has jurisdiction, that is where you have to sue, so you have to resort to conventional jurisdictional principles. If you are in Europe, under the Brussels Convention, that means I have to sue you in your country of domicile (if you reside in multiple European nations, I get to decide which country to sue you in). The English courts are slightly different in that they generally hold that you sue in the country where the act took place, but (Lucasfilm v Ainsworth) you can sue in UK courts for infringement that occurs in the US. As you can see, this can get complicated. I can't sue you in Mongolian courts (assuming neither of us has any connection at all to Mongolia), but I could sue you (being a hypothetical UK citizen) in UK courts if you did the infringing deed while in Mongolia. Mongolian courts enforce Mongolian copyright law, US courts enforce US copyright law. Therefore you first have to decide what country you plan to sue in (from the plaintiff's perspective). | There is no internationally-enforceable mechanism regarding how other people call something, or what alphabet can be uses to write a word. I can legally call that country between Bangladesh and Thailand "Burma" or "Myanmar", I can call Україна Ukraine, The Ukraine, or Ukrainia (the latter seems to be old-fashioned, but it's still legal). As a diplomatic matter, the US government seems to have settled on certain designations so that it uses the version "Myanmar" for official purposes although it includes "(Burma)" in popular communications (State Department travel advisories). If it wanted to, the US could call The Republic of North Macedonia by the name "Macedonia", though there would be political protests. The EU, NATO, UN etc. can likewise set its own rules regarding names of countries. There are many additional complications in the case of countries that are not universally / widely recognized, such as Trasnistria and the Republic of Somaliland. If the president of the Republic of Somaliland sought to address the UN, his problem would not be what people would call his country, it is that the Republic of Somaliland is not "recognized" by the UN (it has no official status), or anyone else. The question of "sameness" of language is a prominent feature of nationalist movements. Claims are made that Flemish and Dutch are "the same" or "different", likewise Bosnian, Serbian, Croatian, Montenegrin; Dari, Farsi and Tajik. Thus there is no real chance of litigating the matter of whether Moldovan and Romanian are the "same language" and which name should be used. But if the EU parliament wants to, it could rule that the language of Moldova is to be called "Romanian", or "Moldovan". |
Can I get a generic name trademarked? This article (and my knowledge about trademarks) says Generic Names can't be trademarked. So my question is about the genericity of a name and the probability of getting it trademarked. I own a generic domain name with .com since 2010 but lately found that another person is using the .co.uk tld of the same domain since 2016 for a website and doing business. I am planning to develop on my domain. The domain name looks something like freecupcakes.com (just symbolic but not about cupcakes) and another party use the domain freecupcakes.co.uk. my observations about the other person's business are. They are using it since 2016 They don't have trademark registerd but a company with the same name in UK So my questions are,. Can I use proceed building the business with my domain which I own from 2010? Can I register a company with the same name in another location not in UK/Europe? Can this type of name be ever trademarked? Can the other person using the same business name ever trademark this name? | Yes. You can build your business with that. Yes. Also, a trademark is not a trade name and vice versa. This is a common mistake. A trademark is a brand affixed to some kind of product. A trade name is the name of a business. They are not the same things. The fact that you have a business with a particular trade name does not mean that you necessarily have a trademark in that name. You do not necessarily need to have a trademark in your trade name and often you can't because it is not a branding of your product. Probably not. Certainly, you cannot get a principle register trademark for this. You could file a state trademark registration if you sell it in a U.S. second or perhaps a supplemental trademark registration, which don't necessarily give you legal rights, but do conclusively establish that you were using the mark in a particular place from a particular time which would discourage anyone else from trying to get a trademark of their own and oust you from using yours. Sometimes trademark examiners are lazy and let generic marks get registered even though they shouldn't. Hard to say. They shouldn't be able to get a trademark in the U.S. on that basis, but the quality of trademark examination varies from country to country, and from examiner to examiner. Every once in a while I see an approved registration for a mark that should totally be disqualified and I shrug my shoulders and ask myself why I always clear a clear "no" from the PTO when I try to submit a mark like that and somehow the bozo who submitted that mark got it approved when it should be clearly ineligible for registration - for example, "Palisade Red" for red wine made in Palisade, Colorado. A lesser level of trademark registration such as a state trademark or a supplemental register mark discourages an otherwise lenient examiner from approving an already dubious mark and strengthen your case if you ever need to seek to have their mark cancelled. | Good question. A trade mark simply protects the company's exclusive right to use it to identify their goods and services. (R) means that the trade mark has been registered, TM means that, while not registered, the company is claiming a trade mark. Trade marks do not have to be registered to be enforceable. You are certainly not infringing their trade mark by what you are doing and you are not laying claim to the trade mark, so there is no requirement to use the symbols. Best practice is to use the symbols and identify who they belong to: "Intel and Core are trade marks of xyz". | Do I have to pay taxes if I register the domain but the website income belongs to someone else? No. The person or company who runs, and/or profits from, the business is the entity under obligation to pay all the applicable taxes: Value Added Tax, income tax, corporate tax, and so forth. Unless you charge a significant amount therefor (see the comments), the mere registration of just one domain is unlikely to trigger tax obligations. | I am answering primarily with regard to the U.S. Lanham Act (15 U.S.C. § 1501 et seq.) and state trademark laws in the U.S., but except as noted, these concepts are widely honored internationally in trademark law. As a general rule, generic names cannot be trademarked. Thus, you can't trademark "liquor store" for a liquor store, or "Calendar" for a calendar, but you might be able to trademark "liquor store' for a copying machine line, or "Calendar" for a perfume. Sometimes a trademark can be obtained for a stylized logo incorporating a generic name (e.g. "liquor store" in bold pink 48 point comic-sans), but to be valid, the trademark must disclaim any assertion of rights in the mere genetic words themselves. Also, sometimes a trademark that is descriptive but not truly generic, like "Palisade Red" for red wine made in Palisade, Colorado (as opposed to the truly generic name "red wine"), can acquire what is known as a "secondary meaning" through exclusive use over a period of time while registered with the Patent and Trademark Office, without contest from anyone else. If it meets these requirement it can win an entitlement to trademark protection. But, the nuances of this particular route to trademark protection are particular to U.S. Lanham Act (which is the name of the federal trademark law in the U.S.). Domain names and entity names in a particular jurisdiction are somewhat different. While it is possible for two competing products or firms to share a generic name, it is not possible for two owners to have precisely the same domain name or precisely the same entity name in the same jurisdiction, even if the firms seeking the same name sell completely dissimilar types of products. For example, there can only be one: "Calendar.com" domain name, even if one company uses the name "Calendar" to sell calendars and the other company uses the name "Calendar" to sell perfume. In those cases, however, it is relatively straightforward to determine what names are and are not taken. | No An actual price is merely descriptive, amd cannot be a trademark, any more that "computer" can be for a PC. A phrase including a price could be a trademark. Once upon a time, Pepsi used the slogan "Twice as much for a nickel too" which ws, or may have been, a trademark. They hypothetical Christopher Columbus Pizza could use a phrase such as 'A new world of flavor for only $14.92", but not, I think, the price alone. | By which law I am enforced to share my personal details (such as my full name) on forum publicly to on-line people which I even don't know (when commenting on random posts)? Contract Law. Google have made it a term of the contract that you use your full name. You can: contact Google and negotiate a change to that term, accept that term, choose not to enter the contract. so I can enforce on my privacy rights without removing my Google Plus account? As a person subject to UK law, your privacy rights involve limiting who and in what circumstances Google can divulge personal private information to. Your name is not personal private information; things like your medical history and bank balance are. Aside from that, you do not have a right to privacy. Anything you do or say that is visible or audible from a public place (like the internet) or a private place where the person in control of that place does not insist on your privacy (i.e. almost everywhere that you are not in control of) is public! | You cannot copyright a word or name in and of itself, so you can't sue someone for having a novel titled 13 so long as their novel is distinct from your own. Trademarks can use certain words or word combinations, but often in a way that is stylized or symbolic of a particular unique style and may include font, coloring, and other unique artistic takes. For example, McDonalds cannot copyright or trademark the letter "M" but it can trademark the "Golden Arches" a unique stylized "M" that they use as signage to at all their locations. If the name is a brand of a certain product such, then the name can be trademarked but only with respect to that product. For example, if the Acme Wash-Master is a dish washing machine they can't sue Ace Wash Master, a unique dog bathing system, for using the name "Wash Master" since it's both styled different (Acme uses a dash between words. ACE uses a space) and non-competitive product lines (most people would not wash dishes in a dog bathing device... and one would certainly hope that no dog owners ever said to themselves "Fido stinks and my tub is busted. The dish washer will do in a pinch!"). | Yes you can. The pieces of information you are going to include are facts. Facts are not copyrightable. The names will be trademarks but you will not be pretending to have any connection with them, so just using them for reference is fine. |
When does a warning become a threat? The other day while on a vacation I drove past a property and saw a sign that read Trespassers Will Be Shot On Sight I've never seen a sign such as that, I was a little taken back. After some research, it turns out that this type of warning sign is total legal (the best answer I found on this. Also, onsite answer). This got me thinking when does a warning become a threat and what consideration is used to determine one from the other? | A warning is arguably often a form of threat (and vice versa). The words are close synonyms. A threat, however, is usually used only in connection with an action that has some sort of human (or at least, AI) agency, while a warning often made to alert someone to a mere natural consequence of an action with no human agency (e.g. a warning that an object is hot and could burn you if you touch it). But, the term "warning", when used in connection with an action that involves human agency, is usually used when the action threatened would be lawful when taken (and often refers to a threat from a third-party rather than the person giving the warning), while the term "threat" is usually used when the action threatened would be unlawful when taken, or if the action, while lawful, is threatened for an improper purposes that amounts to blackmail (e.g. a threat to release legally taken photos showing that someone is having an affair if money is not paid). Also, a threat is generally made by the person who would take the action (or their agent), rather than a disinterested third-party. Incidentally, a threat to bring a lawsuit, since a proper purposes of a lawsuit is to secure money from someone, is not improper to connect to a demand to pay money. | Regardless of the context of the first solicitation, Officer Jones' second solicitation was made in willful refusal to accept Betty's unambiguous "no" for an answer; this is sexually coercive behavior, specifically postrefusal sexual persistence. If this question is assessed from the perspective of the "average" woman, then after her initial declination, extraction of a "yes" cannot be considered uncoerced. Here's a question: how many times does she have to say no before it starts to count? Before it counts against her finally being exhausted, harassed, or intimidated into capitulating? Because by that logic, he never has to stop; he can continue to harass her until he finally accomplishes his objective (grounds to arrest her) - in which case, why bother with the pretense? If it takes 200 "no's" to wear her down to "whatever", then the first 200 "no's" just didn't matter as much as the first "whatever", so why bother with the formality of pretending like the first mattered when it clearly does not? To demonstrate the significance of her initial "no, thanks" and his subsequent refusal to accept it from another perspective: if Betty and Jones were coworkers in the same office, if he continued to solicit her after being told no the first time, that would be the definition of sexual harassment on his part and it would not matter how genial or friendly or casual he thinks he's being; furthermore, if her workplace failed to intervene on her behalf, they would be engaging in sexually discriminatory behavior by creating a hostile work environment, regardless of how genial / friendly / casual, etc. It's hard to see how this could act as evidence of her having committed a crime in one context while being grounds for termination of his employment in another context. HTH. | Is this legal for the county to enforce? Yes. And can I sue if they try to enforce it? You could, but you would very likely lose your lawsuit. A more fruitful approach would be to go to the county planning board and seek a variance to permit you to do what you want to do. | What is the legality of someone putting a virtual hot spot on your property without permission? I know we are in uncharted territory but how would this compare to setting up a contest that would require going on your property without permission? The existence of a game does not authorise entrance to private property, barring some agreement with the owner. That is - if it is trespassing without Pokemon Go (or, for that matter Ingress), then it is trespassing while playing them. That being said, the creators of the game are free to place their in-game targets anywhere they please, and it is hard to imagine a scenario where they would be liable for their users' actions, unless they have not taken reasonable steps to prevent their users from doing so - Niantic clearly instruct their users to respect the law and also, only require that their users be within a certain distance of these points, not actually be at them. Is it currently legal to say Go to person X house and touch a tree? If not, does the current law extend to augmented reality? Nope, unless it can be done without entering private property (which includes the airspace above the property, to some extent). And there are no special cases for augmented reality. Now, there is some possibility that if they create a private nuisance - by being too loud, or by otherwise interfering with the use of the property - owners of a property could bring a claim in tort against players for doing so - or charges for a public nuisance, when done in a public area. | There are two cases to distinguish: information that the other party does not want to give without court order, and information that the other party may not give without court order. Only the former case matters, of course, since the latter by definition requires a court order. So, if the other party is legally capable of giving the information, but it's commercially not sensible for them, then you'll need to sweeten the deal. And that's business, not a legal question anymore. In other words: there's no legal instrument that's at the same time equal to a court order but also different from one. When you need a court order, there's no alternative to a court order. | Short Answer: If there are signs prohibiting non-guests then it's more than likely to be misdemeanor in the first degree. Long Answer: The offence is one of trespass contrary to Florida's TITLE XLVI, Chapter 810.09: (1)(a) A person who, without being authorized, licensed, or invited, willfully enters upon or remains in any property other than a structure or conveyance: 1. As to which notice against entering or remaining is given, either by actual communication to the offender or by posting, fencing, or cultivation as described in s. 810.011; or 2. [omitted] commits the offense of trespass on property other than a structure or conveyance. ;(b) [omitted] (2)(a) Except as provided in this subsection, trespass on property other than a structure or conveyance is a misdemeanor of the first degree, punishable as provided in s. 775.0821 or s. 775.0832. The general power of arrest, at 901.15, requires a warrant for this offence unless certain conditions are met, as explained here: When can an officer in Florida make a warrantless arrest for a misdemeanor? As a general rule, a warrant is required for a misdemeanor arrest unless: all of the elements of the misdemeanor were committed in the officer’s presence; or the officer has probable cause for the arrest and the misdemeanor is on the list of statutory exceptions found in Section 901.15, F.S.; or the officer has reasonable grounds to believe that the subject has violated probation or community control in any material respect (sometimes called the “COP VOP” exception contained in Section 948.06). 1 The more likely punishments, based on a lack of specific detail, seem to be: For a misdemeanor of the first degree, by a definite term of imprisonment not exceeding 1 year 2Or: [not exceeding] $1,000, when the conviction is of a misdemeanor of the first degree Note that these punishments are maximums the court could impose if the hotel wanted to pursue the matter criminally. | united-states Speed limits can be enforced by any means (except photo-radar) in most U.S. jurisdictions without notice that it is being used. Those laws are close to being uniform in the U.S. due to federal coordination on federally funded roads, even though state and local laws are what governs them directly. Some U.S. jurisdictions prohibit the issuance of photo-radar speeding tickets without notice before entering the photo-radar picture taking zone. I'd have to research further to see if New York City does. The purpose of the language on the sign is to make drivers more fearful of being caught in circumstances where they don't see someone trying to enforce the law, not to have greater legal effect. | It depends on the actual content of the tip and to what degree the police believe the tip to be reliable given the totality of the circumstances. I'll give two examples where tips (one actually anonymous, one deemed anonymous) were found to give probable cause or reasonable suspicion to support a search or seizure. Illinois v Gates 462 U.S. 213 (1983) established that the test for whether there is probable cause for issuance of a warrant is based on the "totality of the circumstances". In Gates, police received an anonymous letter disclosing that the defendant was selling drugs, along with some predictions about the defendant's future activity. After verifying that some of the predictions were correct, the police obtained a search warrant for the home. The court observed that "under the "totality of the circumstances" analysis, corroboration of details of an informant's tip by independent police work is of significant value." Navarette v California 572 U.S. ___ (2014) reiterated that "reasonable suspicion takes into account the totality of the circumstances, and depends upon both the content of information possessed by police and its degree of reliability. An anonymous tip alone seldom demonstrates sufficient reliability, but may do so under appropriate circumstances" (quoting from the syllabus, with internal citations and quotations removed). In Navarette, an 911 caller asserted that a truck with a particular appearance was driving erratically and had run her off the road. The court said: "Even assuming for present purposes that the 911 call was anonymous, we conclude that the call bore adequate indicia of reliability for the officer to credit the caller’s account. The officer was therefore justified in proceeding from the premise that the truck had, in fact, caused the caller’s car to be dangerously diverted from the highway." They also observed that "a 911 call has some features that allow for identifying and tracing callers, and thus provide some safeguards against making false reports with immunity." |
In the United States, what is the threshold for "originality" in order to have copyright protection? In the United States, what is the threshold for "originality" in order to have copyright protection? 17 U.S.C. § 102 says that copyright protection subsists "in original works of authorship...". How original does the work need to be? | Originality requires independent creation plus a modicum of creativity This was answered in Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340 (1991): originality requires independent creation plus a modicum of creativity. Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity. To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, "no matter how crude, humble or obvious" it might be. Originality does not signify novelty; a work may be original even though it closely resembles other works, so long as the similarity is fortuitous, not the result of copying. [Citations removed] This connection to creativity is explained more in the United States Copyright Office's Compendium at 308.2, citing entirely from Feist. The US Copyright Office presents eleven categories of things that "do not satisfy the creativity requirement"1 (308.2; 313.4(A)-(K)): mere copies de minimis authorship: "copyright protects only those constituent elements of a work that possess more than a de minimis quantum of creativity" (citing Feist, p. 363); e.g. substitution of pronouns, correction of spelling, three-note sequences, are not sufficiently creative words and short phrases works consisting entirely of information that is common property; e.g. calendars, schedules of sporting events measuring and computing devices (with the exception of separable creative features distinct from what makes the article useful) listings of ingredients or contents blank forms characters scènes à faire familiar symbols and designs mere variations of coloring Canada has taken a different approach canada For a comparative look, Canada has rejected creativity as the hallmark of originality. In CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13, the Supreme Court considered the standard from Feist but took a different approach: an “original” work under the Copyright Act is one that originates from an author and is not copied from another work. That alone, however, is not sufficient to find that something is original. In addition, an original work must be the product of an author’s exercise of skill and judgment. The exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely mechanical exercise. While creative works will by definition be “original” and covered by copyright, creativity is not required to make a work “original”. Application Many answers on this site apply this standard. E.g. Copyright of retyped public domain text List of answers referring to a "modicum of creativity" You can also browse published decisions applying this standard (a Google search of casetext.com). 1. Although, I recognize for several of these categories there are additional or alternative rationales, and even statutory bars (e.g. 102(b)), for not granting copyright protection. | 17 USC §102: Copyright protection subsists, in accordance with this title, in original works of authorship 17 USC §201: Copyright in a work protected under this title vests initially in the author or authors of the work. Animals cannot be authors. To the extent that the cat's owner could be an author, copyright only subsists in "original works of authorship". The test for originality in the US was laid out in Feist Pubs., Inc. v. Rural Tel. Svc. Co., Inc., 499 U.S. 340 (1991): The constitutional requirement necessitates independent creation plus a modicum of creativity. The music produced by the cat was not a product of even a modicum of creativity on the part of the cat's owner (or anyone, for that matter). No copyright subsists in the notes randomly chosen by the cat. | Such a document is protected by copyright the moment it is fixed in a tangible form (which includes on paper and in a computer file). Your creative expression would be protected. But the facts of what the format consists of would not be protected -- copyright never protects facts. You may lawfully place a copyright notice on it, but such a notice will not grant you any rights to control use of the facts disclosed in the document, and would not even if you held copyright to the game or the format. Indeed in the modem era, a copyright notice has very little legal effect at any time on any document created after 1989. If the document is devoted entirely to describing the contents of the file format, there may be very little that is protected beyond the exact wording. If there is essentially only one way or a very few ways to accurately describe the facts, even the exact wording may not be protected. By the way, if you are going to use a copyright notice, the standard notice lists the year as well as the copyright holder (who is often but not always the author). Example: Copyright 2022 Chris Smith Legal Effect of a Copyright Notice In US law, 17 USC 401(a) provides that: (a) General Provisions.—Whenever a work protected under this title is published in the United States or elsewhere by authority of the copyright owner, a notice of copyright as provided by this section may be placed on publicly distributed copies from which the work can be visually perceived, either directly or with the aid of a machine or device. [emphasis added] Subsection (b) which I will not quote, specifies the form of the notice. Subsection (c) specifies how such a notice should be positioned. And subsection (d) goes to the legal effect of the notice. Subsection (d) reads: (d) Evidentiary Weight of Notice.—If a notice of copyright in the form and position specified by this section appears on the published copy or copies to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant’s interposition of a defense based on innocent infringement in mitigation of actual or statutory damages, except as provided in the last sentence of section 504(2). Since the 1989 effective date of the Berne Convention Implementation Act of 1988 (BCIA), the provisions of 17 USC 401(d) quoted above, are the only legal effect, in US law, of the omission of a copyright notice on a work protected by copyright. (The BCIA amended US copyright law.) Prior to that date, the omission of such a notice could cause total loss of copyright, although there were limited exceptions specified in 17 USC 405 and 406. Section 406 also indicates the legal effect of an incorrect notice on the copyright of the name and date specified in a notice on works published before the date of the BCIA. On works first published since that date, all such legal effects have ceased to operate. In countries other than the US, that have adhered to the Berne Copyright Convention, or the WTO TRIPS agreement, no notice or other formality is required to ensure copyright protection. This includes almost every country in the world, and includes all countries with a significant publishing industry. | US Laws are Free of Copyright Federal Works 17 USC 105 says: Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise. The phrase "work of the United States Government" has been interpreted to mean any work created by an officer or employee of the government in the course of his or her official duties. See 17 USC 101 for the official definition. This includes the text of (any and all) legislation. The official texts of all US laws (and federal regulations) are in the public domain, and no one may claim copyright on them. Strictly speaking, this is not a matter of "fair use". Fair use is an exception for limited uses of copyrighted content. The texts of these laws are not protected by copyright at all, and never have been. State Works In addition, while works of the various US states are not automatically in the public domain, the text of state laws, and I believe of the various state and local regulations are also in the public domain. This Wikipedia article says: Federal statutes are in the public domain and no copyright attaches to them. The same is true of court decisions. In State of Georgia vs Public Resource Org, Inc 11th Circuit No. 17-11589, (October 19, 2018) a three-judge panel of the US 11th Circuit Court of Appeals wrote: The general rule that legislative codifications are uncopyrightable derives from an understanding of the nature of law and the basic idea that the People, as the reservoir of all sovereignty, are the source of our law. For purposes of the Copyright Act, this means that the People are the constructive authors of those official legal promulgations of government that represent an exercise of sovereign authority. And because they are the authors, the People are the owners of these works, meaning that the works are intrinsically public domain material and, therefore, uncopyrightable. The Wikipedia article linked above quotes State of Georgia v. Harrison Co, 548 F.Supp 110, 114 (N.D. Ga 1982) as saying: The citizens are the authors of the law, and therefore its owners, regardless of who actually drafts the provisions, because the law derives its authority from the consent of the public, expressed through the democratic process. It also quotes a US copyright office publication as saying: As a matter of longstanding public policy, the U.S. Copyright Office will not register a government edict that has been issued by any state, local, or territorial government, including legislative enactments, judicial decisions, administrative rulings, public ordinances, or similar types of official legal materials. Likewise, the Office will not register a government edict issued by any foreign government or any translation prepared by a government employee acting within the course of his or her official duties. However, some states do attempt to claim copyright in electronic versions of their state codes. The 2015 LA Times story "Georgia claims that publishing its state laws for free online is 'terrorism'" reports on a recent infringement suit by the State of Georgia against Carl Malamud, who makes copies of the Georgia Annotated Code available for free online. The state claimed that the annotations are protected by copyright. In State of Georgia vs Public Resource Org, Inc 11th Circuit No. 17-11589, (October 19, 2018) a three-judge panel of the US 11th Circuit Court of Appeals found this claim to be without merit. After a thorough review of the law, and an examination of the annotations, we conclude that no valid copyright interest can be asserted in any part of the OCGA. ... In most states the “official” code is comprised of statutory text alone, and all agree that a state’s codification cannot be copyrighted because the authorship is ultimately attributable to the People. ... When a legislature enacts a law, or a court writes an opinion rendering an official interpretation of the law in a case or controversy, they are undisputedly speaking on behalf of the People, who are properly regarded as the author of the work. ... Because we conclude that no copyright can be held in the annotations, we have no occasion to address the parties’ other arguments regarding originality and fair use. Non-US Laws UK laws are protected under Crown Copyright, although permissive licenses for reproducing copies are easily available. Many other countries have similar provisions. The US, however, does not generally recognize such copyrights. The position of the US Copyright Office is that: [T]he Office will not register a government edict issued by any foreign government or any translation prepared by a government employee acting within the course of his or her official duties. Laws Incorporating Copyrighted Works by Reference Laws sometimes include by reference privately developed and copyrighted documents. For example, building codes and other safety codes may be developed by private groups, often national non-profit organizations, and incorporated into state laws by reference. This means that the text of the privately developed code is legally part of the law, and the law cannot be fully understood and complied with without reading the code. But the code is a copyrighted work, and the copyright holder may charge for copies. For example, this official Texas web page says: The Texas statutes, administrative rules, and local ordinances occasionally adopt, incorporate, or refer to technical codes published by independent organizations. These codes describe scientific and safety standards for structures and discuss specifications for fire safety, electrical systems, plumbing fixtures, construction practices, and many other topics. ... Codes are not reprinted within the statutes or the local ordinances themselves. They are "adopted by reference" or "incorporated by reference" and are usually available to review at the city clerk's office and at some public libraries. Please contact your local public library or your local government for assistance accessing codes not available online. Federal Copyrights However, this does not mean that anything "published by the US government" is in the public domain or is free of copyright. The Federal government often hires contractors to prepare various works. These works are protected by copyright. Frequently, the contracts will assign this copyright to the Federal government, which as 17 USC 105 says: ... is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise. Such works are therefore copyrighted, and the copyright holder is or may be the US Federal Government. They are protected in the same way and to the same degree as works of private authorship. Many works funded by the US Federal Government fall into this category. | Almost all works recorded in some fixed way that are not a couple of hundred years old or created by a government agency are protected by copyright. In the absence of an exception to the general rule, copying a work that is protected by copyright is copyright infringement, which can be a basis for the copyright owner to sue the infringer. This can also be a basis for criminal liability is certain additional elements are proved and a prosecutor proves a case of copyright infringement in a criminal case. But, there are some important exceptions to this general rule of what constitutes legally sanctionable copyright infringement. The most important exceptions to the general rule have the character of affirmative defenses. In order words, if someone sued for copyright infringement and the person sued admits that they copied the copyright protected work, they can use these exceptions to avoid having legal liability. One of the exceptions is the permission from the copyright owner to use the copyright work. This can be either in the form of affirmatively given permission to use the copyrighted work in a particular way (called an "express license" to use the copyrighted work), or in the form of permission to use the copyrighted work that can be inferred from context (called an "implied license" to use the copyrighted work). Another of the main exceptions is "fair use". If the way a copy of a copyrighted work is used constitutes fair use, the person using the copyrighted work without an express or implied license to do so it not liable for copyright infringement. Of course, while you don't need more than one exception to the general rule to avoid liability for copyright infringement, you can have more than one. For example, you can use copyrighted work in a way that would constitute "fair use" and not give rise to liability for that reason if you were sued, even if you can't be sued anyway because you already have been given permission by the owner of the copyright to use the copyright in the way that you did. It isn't a case of a contradiction. It is a case of a general rule that has exceptions. | No, copyright absolutely does not protect anything "novel" or anything related to algorithms or generally anything functional at all. Copyright only protects your "expressed representation of a creative work". Other people can duplicate your work with a different "expression" and not be infringing on copyright. And if there is nothing creative in your work then it's not even eligible for copyright in the first place. For example, if you figure out how to sort an array with fewer computational steps than what anybody else is doing then that is functional code, not creative code, and anybody can reverse engineer/duplicate your sorting algorithm. However, patents do provide the protection you're looking for. If you want to protect your fancy algorithm then apply for a patent. Patents expire an order of magnitude sooner than copyright, but they are the only means of legally protecting this type of intellectual property. Unlike copyright, patent protection is only available if you apply for it, and it has to be approved by the relevant government department in your country (although you can start using the patented technology before approval has gone through). | In the united-states since the effective date of the 1976 Copyright Act, all copyright notices are optional, and copyright does not depend on any notice at all. The same is true in every country that adheres to the Berne Copyright Conventions, which is almost every country in the world, and includes all countries with significant publishing industries. Even before the 1976 act, when a notice was absolutely required, a hand written notice was just as effective as a printed notice, provided that it was legible. Many painters, for example, included (and still include) hand-written copyright notices near the painter's signature, and these were effective. In the US, one cannot file a copyright suit unless the work involved is first registered. If the work was not registered before the infringement occurred, statutory damages are not available (in the US) unless the work is registered within 3 months of publication. For non-commercial works, statutory damages are often the only way to get any significant damages. The original handwritten work, whether posted to the net or not, is still protected by copyright, with or without a notice. A notice is not a substitute for registration. Neither is a post on social media. Proving who created a copyrighted work is not usually a major issue in a copyright suit, and worrying overmuch about ways to establish this is often a waste of tiem and effort. The issues are more often: Was the work copied; if so who copied it; was it infringement, fair use, or use under a license; did some other exception to copyright apply; what damage was done to the copyright owner; what advantage did an infringer get? A copyright notice does largely eliminate the defense of "innocent infringement" in which an infringer claims not to have known that the works was protected. If proved this can greatly reduce damages under US law. A handwritten notice will have the same effect on that defense as a printed one. | The origin of a lawsuit will not be a license, but copyright law. Licenses are exemptions from copyright law enforcement. The original author holds the copyright. That person did offer a license O to the third party, but that third party did not take up that offer. Hence, there is a copyright violation, and a cause for a lawsuit. It is up to the original author what might be demanded there, but the usual demand is such suits is for damages. However, it is common practice to settle the case amicably outside the courts by agreeing to the original license O, although this may come with undisclosed extra terms. The problem with a lawsuit is that enforcement of the original license offer O is hard, because copyright law generally does not cover such licensing. The license terms L are mostly irrelevant as that person is not a copyright owner so there is nothing to be licensed. |
When does name-calling become slanderous? Usually, the difference between ordinary insults/name-calling and actionable slander is taken to be that non-actionable insults are either subjective statements that can't unambiguously be determined to be true or false (for instance, "Ronald is an asshole") or else statements that, while objectively false, are obviously hyperbolic or sarcastic (for instance, "Donald is a brain-dead puppy-eating lizard from Cygnus X-1"), whereas actionable slander consists of objectively-false statements that can plausibly be taken literally, due to not being obviously hyperbolic or sarcastic (for instance, "Donald is a convicted child molester"). However, a number of common, run-of-the-mill insults appear, going by the above rule of thumb, like they would be slanderous, due to (seemingly) making plausible, objective claims about the target: For instance, if Ronald calls Donald a "retarded bastard son of a senile crackwhore", he's (going by the literal meaning of the individual members of this string of insults) claiming that Donald is intellectually-disabled and was born out of wedlock to a crack-cocaine-addicted prostitute suffering from dementia, all of which are things that could potentially be true, even if taken literally. If Donald then retaliates by calling Ronald a "pigfucking cretin cocksucker", and we take this string of insults literally, he's making the claim that Ronald suffers from congenital hypothyroidism, has sex with pigs, and practices fellatio, all of which, again, could plausibly be true. When insulting someone else using one or more insults that could appear to be making plausible, objective claims (such as the examples above), when does run-of-the-mill name-calling cross the line into actionable slander? Looking specifically for united-states answers here, due to the unusual characteristics of U.S. defamation law (and also because I live in the States). | An insult can be slanderous when it is reasonably understood to constitute a statement of an actual, presently existing fact about a person, as opposed to being purely figurative or clearly hyperbole in the context in which it is used. A purely literal reading isn't sufficient, even when it would be remotely possible that the literal sense of the word could be true. And, the same string of words in an insult could be slanderous when directed at one person in one setting, and not when directed at another person in another setting. The intended meaning, as the audience when it is uttered would understand it, is what matters. In close calls, we let the trier of fact decide if the statement was or implied a literal statement of a presently existing fact, or if it was not meant in that sense, following a trial if necessary. For instance, if Ronald calls Donald a "retarded bastard son of a senile crackwhore", he's (going by the literal meaning of the individual members of this string of insults) claiming that Donald is intellectually-disabled and was born out of wedlock to a crack-cocaine-addicted prostitute suffering from dementia, all of which are things that could potentially be true, even if taken literally. If Donald is a U.S. Senator or a school teacher, this probably isn't going to be taken literally by a reasonable person hearing it. If Ronald is a guidance counselor at a school who would have reason to know the real facts and Donald is a janitor who was a former student at the school and these things aren't true, it might be slanderous. The retaliatory insults would almost surely not be slanderous no matter who said them and if the retaliation were stated in that way it would also tend to make the original statement less likely to be taken as a genuine statement of fact as opposed to a generalized insult, because Donald is not treating the insult as if it was true or might be true. Unlike the U.S., in Germany, insults of these sorts would often be actionable because under German law, gross rudeness, in and of itself, is actionable even in the absence of the fraud element required in U.S. law. This was historically the case in some circumstances in the U.S. but that basis for imposing liability, at least under the label of slander or defamation, is pretty much dead in U.S. law. | Is it legal to publish a cease and desist letter that I have received? Generally speaking, yes. My interpretation of your post is that you published your opinion about a business or businessperson, and the businessperson now is trying to intimidate you or deter you from sharing with others your opinion. The phrase "the actionable statements listed are clearly statements of my opinion" is otherwise unclear. Under defamation law, only false statements of fact are actionable whereas statements of opinion are not. The businessperson is not entitled to your silence. If your criticism is about the business, the cease and desist letter sounds in unfair and misleading practices to the extent that the business is trying to conceal from the public some inconvenient information that you as actual or potential customer possess. Even if you published as a competitor, your statements would have to be untrue and misleading for these to constitute disparagement. See the Black's Law Dictionary definition of disparagement [of Goods]. For the reasons stated in the other answer, copyright issues are not a matter of concern. It is preferable to publish the letter as is. Transparency preempts confusion as to "I said, he said". By contrast, paraphrasing the letter for the purpose of avoiding an imaginary violation of copyright creates a risk of you inadvertently giving him grounds for a claim of defamation. | This is similar to giving a hammer and needing to state to one is not responsible if the taker uses it to hit their head with. I believe this is the wrong analogy to use here. It would be more like giving somebody a hammer and saying you are not responsible if the head flies off and injures you. There is a concept in "things" you obtain called "fitness for purpose", so if you download open-source software like a registry cleaner, and it deletes your entire registry, the "WTFPL" doesn't absolve the authors of liability. Explicitly denying any kind of "fitness for purpose" or warranty helps shield the author from legal claims (even if they are meritless) because it kills it out of the gate. It's possible that the WTFPL license granter/author could still be sued and have to defend themselves in court because it isn't explicitly stated that there is no warranty or fitness for purpose. Open source does not mean that it's "use at your own risk", which is why there are so many types of licenses and disclaimers. From comments: Thank you for this very clear answer. Does the fact that someone willingly retrieves free code with no control of the provider changes anything? (vs a software vendor which provides code suitable for A and B, in exchange for money) I think closer to your hammer analogy where I would sue the producer of hammer XXX, a hammer I found on the street or which was given to me without involvement of vendor XXX. No, this doesn't change anything. The software vendor here is the person who writes the code, even if they don't charge for it. They are the ones who license the software and they are the ones who take some level of responsibility for it. In this case, the software author is the "hammer producer" that you would sue... If you buy "Registry Cleaner XL" from Best Buy and it bricks your computer, you don't sue Best Buy, you sue the person who authored the software. In pretty much every case, the author is the responsible party, not the vendor, and it is the author who licenses it, not the vendor (the vendor just acts as an intermediary). | If a factual statement is implied, rather than explicit, it can still constitute defamation. "T looks like a thief" may be an expression of opinion ("I think that T might be a thief") or it might be a slightly oblique way of saying "T is a thief". That would ultimately be a matter for the finder of fact, often a jury in the united-states, to determine. See HG.org,s page on "Defamation by Implication" The article "Libel and Slander 101: Defamation By Implication" by Daniel R. Warner of RM Warner, a lawyer specializing in Internet defamation, among other kinds of cases, cites and discusses as cases where US coiurts have upheld defamation by implication: Kendall v. Virgin Island Daily News in March 2013. (3rd Circuit) Plaintiff was a public figure and had to show actual malice, defendants were a reporter and a newspaper; Woods v. Evansville Press Co: (7th Circuit). The Court held that "an implied statement, just as a statement made in direct language, can be defamatory." Newton v. National Broadcasting, Co.: | No one can give you a meaningful answer unless you specify what jurisdiction you're in. Assuming you're in the United States: There's no liability for defamation. The company using your picture isn't saying anything about you. Whatever you might feel the implications are, the reasonable reader would not view the ads and conclude that you are actually sick or struggling financially. Even if they would, it is not defamatory to say that someone got sick or that they are struggling financially. As you indicated, those implications would merely be unflattering, and there is no liability for saying something unflattering about someone. There's potential liability for "misappropriation of likeness." One of the four commonly recognized privacy torts covers the misappropriation of a plaintiff's likeness. The classic case would involve the use of a celebrity's name or picture to sell a product that she has not endorsed. Some states allow lawsuits for misappropriation; others do not. Even among the ones that do allow it, there is some variation as to the facts you must prove to win the case. As I recall, some states require that the defendant use the name or likeness for commercial purposes and some require that the plaintiff's likeness already had some meaningful value outside the context of the misappropriation in question. If you're interested in pursuing the case, contact a lawyer with experience in privacy torts in your jurisdiction. | Impersonation Giving a false name, or impersonating someone, is not in all cases illegal. However, doing so in order to obtain a financial or other benefit, or in order to unfairly deprive someone else of advantages might well constitute fraud. This is usually grounds for a civil lawsuit, but in some cases may be a criminal offense, depending on the jurisdiction and the detailed facts. Trademark The names of businesses, products, and services are often protected as trademarks. Using a trademark, or a confusingly similar word, phrase, or graphic, in order to create confusion or induce a consumer to falsely believe that ones is affiliated with or endorsed by the trademark holder is normally trademark infringement, and can subject the infringer to a lawsuit. However if such unauthorized use of a trademark is not done "in commerce", that is not identifying or promoting a product or service, it may not be trademark infringement. In any case, trademark infringement is a tort, not a crime. This means that the trademark holder may sue an infringer if the holder so chooses. But the police will not normally arrest someone for trademark infringement, nor does a third party who is not the holder have a right to bring a legal action for trademark infringement. Crime If the impersonation is part of a scam intended to gain financial benefits improperly, that may well be a crime. As such it can be reported to law enforcement. It is generally up to the law enforcement agencies or government prosecutors which crimes to prosecute, and which ones to leave alone. There authorities have limited resources of money and personnel. Attempted scams where no money or value was gained by the scammers are often not of high priority. The victim cannot force the authorities to take action in most jurisdictions. | what would be the threshold for a lie to be actionable where you could claim a damage? There is no award for "lies" which clearly are inconsequential. A customer will never make decisions based on whether "menu options have changed" or whether the business is honest on the statement "your call is important to us". The impact that the duration of these statements have on the customer is negligible at best, since omitting these statements does not improve the company's response time anyway. The statement "your call is important to us" might not even be a lie. Many companies know that it is in their best interest to gather information from their customers on what to improve, lest customers switch to a competitor or file suit. The lack of objective standards renders statements such as "best pizza in town" unascertainable. Accordingly, it would be unreasonable for a customer to rely on criteria that are subjective, undefined, unclear, and/or palpably fictitious. Only statements like "scientifically proven" and "lose x pounds in y hours" might be within scope of consumer protection laws (see also unfair and misleading practices). The assessment of those scenarios requires more detail, including disclaimers and other "small letters" that are --or ought to be-- disclosed no later than the formation of the contract. | The spectrum of "illegal" is broad. One way in which racial epithets are (indirectly) illegal is via anti-discrimination laws, indeed labeled "harassment" by the EEOC Harassment is unwelcome conduct that is based on race, color, religion, sex (including sexual orientation, gender identity, or pregnancy), national origin, older age (beginning at age 40), disability, or genetic information (including family medical history). Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Anti-discrimination laws also prohibit harassment against individuals in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit under these laws; or opposing employment practices that they reasonably believe discriminate against individuals, in violation of these laws. If an employer tolerates racial epithets, they are likely to be the target of a harassment lawsuit. There is no limit on who utters the epithet, thus a customer can be the trigger for a suit. In cases not involving supervisory employees, liability arises if the employer "knew, or should have known about the harassment and failed to take prompt and appropriate corrective action". Analogously, racial epithets in educational institutions are actionable. Framed in terms of a random epithet by a non-employee or campus visitor (where the institution has minimal leverage over the offender), the institution must act, when it becomes aware of such circumstances arising, and cannot just say "What can we do??". A second (remote) possibility is through the fighting words doctrine, that the government can limit speech that is "likely to incite immediate violence or retaliation by the recipients of the words". This arose initially in Chaplinsky v. New Hampshire – one of the holdings was that The Court notices judicially that the appellations "damned racketeer" and "damned Fascist" are epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace. There have been numerous refinements of the doctrine over the decades, so the mere utterance of a racial epithet would not run afoul of properly-restrained "breach of peace" laws. One of the two most-relevant current opinions is Brandenburg v. Ohio, 395 U.S. 444, where the court held that the government cannot forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action but uttering an epithet is not advocacy of force or law violation. The second is R.A.V. v. City of St. Paul, 505 US 377 where defendant was charged with violating an ordinance that prohibits the display of a symbol which one knows or has reason to know "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender" SCOTUS ruled that "the First Amendment does not permit a state to use content discrimination to achieve a compelling interest if it is not necessary to achieve that interest" (emphasis added), holding that A few limited categories of speech, such as obscenity, defamation, and fighting words, may be regulated because of their constitutionally proscribable content. However, these categories are not entirely invisible to the Constitution, and government may not regulate them based on hostility, or favoritism, towards a nonproscribable message they contain. Thus the regulation of "fighting words" may not be based on nonproscribable content. It may, however, be underinclusive, addressing some offensive instances and leaving other, equally offensive, ones alone, so long as the selective proscription is not based on content, or there is no realistic possibility that regulation of ideas is afoot. A further holding is that the law is is facially unconstitutional because it imposes special prohibitions on those speakers who express views on the disfavored subjects of "race, color, creed, religion or gender." At the same time, it permits displays containing abusive invective if they are not addressed to those topics. Moreover, in its practical operation the ordinance goes beyond mere content, to actual viewpoint, discrimination. The court has not clearly identified a context in which a law against a racial epithet would be constitutional, they have simply identified other bars that would have to be cleared for such a law to be permissible. No utterance, devoid of context, is illegal, so to discover where such an utterance could be part of a prosecutions, we would need a lot of specific context in the hypothetical. |
Defendant compensation after not guilty verdict My friend is currently a defendant in a criminal case. In my opinion, based on what I know about the case, it's likely the verdict will be 'Not Guilty', and that the evidence is based on faulty testimony. There has been no physical evidence. I'd like to give details, but as an ongoing case, AND due to the nature of the accusations, I won't. Basically, (IMHO) the testimony is based on lies, and the imagination of a young person. The case has brought tremendous stress, resulting in an impact to their health and financial impact on my friend. They've been informed that should they be found not-guilty, they can only expect his travel expenses to be reimbursed. My thoughts are that if they are declared not guilty, then the accusations against them are not true, and thus easily fall foul of Libel laws in the UK, at the very least. It cannot be right that in a civilised country, a wrongly accused person should be left with only suffering, both in mental and financial hardship terms, from false accusations. Once they are found not-guilty, what can they do to recover the costs of legally defending themselves, and also to account for the impact to their health? | Anyone found not guilty may apply to the judge to have his legal costs paid out of central funds; this is not automatic, but is usual if the court agrees that the charges should not have been brought. The amount payable is set out by regulations depending on where the case was heard; since October 2012 it has been set at legal aid rates, which are unlikely to cover a full defence team. Somebody who did not have a lawyer can charge for the time he himself spent on the case, but this is assessed at a standard rate similar to minimum wage, even if he happens to be an expensive lawyer. No compensation is payable for health or other problems incident on a criminal case; it is considered a part of the rule of law that charges will be brought against defendants, and that some of them will be found not guilty. It may, of course, be possible to sue the complainant for defamation or even to bring an action for malicious prosecution; a lawyer would have to advise on this, but the mere fact of acquittal is certainly not enough to found an action. | You asked, "could that guy as defendant claim self defense and win?" First let's try to make it clear what is meant by "win". In the Rittenhouse trial, the defendant was charged of the following crimes: First-degree reckless homicide First-degree recklessly endangering safety (x2) First-degree intentional homicide Attempted first-degree intentional homicide Possession of a dangerous weapon by a person under 18 (dismissed) Failure to comply with an emergency order from state or local government (dismissed) Rather than thinking of the defendant as a "winner", it might be more appropriate to say that he was "acquitted" of these charges. If someone that was involved in the conflict fired first, as you described here: "They encounter each other when each is leaning or reaching or tripping, or whatever it would take for them to unintentionally point their gun at your head. You react and you raise your gun in defense, he spots your move and points his at you. You both fire. You shoot each other and you both are gravely injured. Like, paralyzed", then would they also be acquitted of all of the non-dismissed charges listed above? If everything was as you described ("unintentional", "reactionary", and "in defense"), then likely they would also not be found guilty of those crimes. It's not like they would "win", it's more like they will not be found guilty of committing one of those crimes. The precise outcome will depend on all the facts involved in the case, and the jury's decision based on those facts. So there is no single answer that always applies to every situation, but it sounds like you're wondering about some hypothetical situation that appears to be paradoxical because in this case only one person was charged with crimes: if someone else was the first shooter, the sequence of following events would first of all depend on whether or not they got charged with a crime, and I wouldn't characterize the outcome as a "win" or "lose" but as an "acquittal" or "conviction", and yes it is possible to be acquitted if everything is "accidental" as you described, and presumably not "reckless" (often meaning that a reasonable person in the same situation would have done the same thing). About your more broad question: "Is mutual self defense a thing?" It depends on what crime is being charged against the defendant. In the Rittenhouse case there was only one person that was charged. If you're asking about a hypothetical situation in which two people involved in a 1-on-1 conflict both claim self-defense, I hope I can assume that they were both charged with a crime against which to defend themselves in court in the first place. It is indeed possible for a State to prosecute both parties of a 1-on-1 physical conflict, and for both of them to successfully claim self-defense in order to eventually be both acquitted. It wouldn't be called "mutual self-defense", but each defendant would make their own self-defense case individually. | The general rule is that in the opening statement, the lawyer may describe what he expects the evidence and testimony to show: We will present Mr Smith, who will tell you that he saw the defendant miles away at the time of the crime But cannot make statements of fact as such. I don't see why this rule would be different for a pro se defendant. In a closing argument, as i understand the rule, the lawyer may and often will say things like "As witness X testified, there was no time to stop" but is not supposed to introduce new alleged facts not supported by the evidence. However, in a closing, a lawyer can and often does draw conclusions from facts supported by testimony. "My client was proved to have been in the next town 20 minutes earleri, so obviously he could not have committed the crime." Again, i don't see any reason why these rules would be different for someone acting pro se. | As I understand it, you can pretty much sue anybody for anything. The question, of course, is would you win the suit? All the lawyers here can correct me, but I believe in order to win, you would have to Show standing, that is, they're your comments and not someone else's Show that it's a deliberate act, and not just someone accidentally clicked the wrong checkbox. Show that it was an act by the agency and not by Facebook, for example. Show that you've been singled out for your viewpoint (they allow some people's comments) Show that there is no other reason to delete your comments (they're obscene, or advocate for an illegal act, for example). I'm probably missing something else. The real question is, even if you could demonstrate all these things, would it be worth it? You may spend $1,000's and you might not recover your legal fees. The case might take years. | In the UK this is just called "an appeal for the suspect to come forward." The UK police are not allowed to lie or mislead as suggested in the OP, and any reduction in punishment is in the hands of the courts when passing sentence (unlike some other jurisdictions, I believe). | Police continue to investigate Following an acquittal, there are two possible positions for the police: they are certain the acquitted person performed the act but they were not guilty (for all sorts of reasons). The investigation is closed because although the police know who did it, there was no criminality due to the not guilty verdict. The evidence in the court shows that the accused did not commit the act. Ergo, someone else did. The police will keep looking for that someone else. Note that the proposed scenario is highly dangerous for you. First, the exculpatory evidence may be inadmissible, particularly if it is an alibi (see Can I surprise the prosecution with an alibi defense at trial?). To rely on an an alibi defence, it must be raised with the prosecution before the trial. You would have to have said that you were where the phone footage was shot before the trial starts and the police may have therefore discounted you as a suspect from the get go. Second, you are now committing a crime, usually called an attempt to pervert the course of justice and this action may also make you an accomplice to the murder after the fact. You beat the rap on the murder and then spend a lot of time in prison for those two. | united-states Procedures differ on such things. The closest I know of to an outcome of "not enough evidence" is the classic "scotch verdict" of "Not Proven. In the US, the prosecutor can wait to proceed with a criminal case while s/he does (or has done) as much investigation as s/he thinks is advisable. But once the trial starts, it normally proceeds to a conclusion. If there is not enough evidence to convict, the result should be "not guilty" and that will bar any future trial of the same person for the same offense under the doctrine of Double Jeopardy. Circumstantial evidence, as described in the question, can be enough to convict, if the jury (or judge in a bench trial) is convinced beyond a reasonable doubt that the accused is guilty. Exactly how much evidence it takes to convince a Jury varies, and there is not a clear standard other than the phrase " beyond a reasonable doubt". The judge, or a later appeals court, can set aside a jury verdict for insufficient evidence, but only by finding that no reasonable jury could have convicted on the evidence pre3sented, taking it in the light most favorable to conviction. Judges are reluctant to set aside jury verdicts unless they appear badly wrong. If further evidence is found during the trial, which tends to show the accused is not guilty, the prosecutor can request that the trial be halted. This may or may not bar a future re-trial of the same defendant, depending on whether the dismissal is 'without prejudice", a decision the Judge makes. But once evidence has been started to be presented, dismissals are usually "with prejudice" meaning that double jeopardy applies. The defense can also request a dismissal, most often at the end of the prosecution case. In rare circumstances the Judge may dismiss without a request from either prosecution or defense. These will most often be "with prejudice" It is possible for the trial to be recessed while new evidence is evaluated or sought, but this is rare and usually only for a short time -- a day or two, perhaps. In general a prosecutor is not supposed to schedule a trial if there is any reasonable chance of additional evidence coming to light. It can and does happen, but the system tries to avoid it, and does not easily accept that it has happened. This answer is US-Specific, and different answers may apply in other places. | A not guilty plea is not part of the case of a defendant or a defense attorney. A "case" refers to evidence and argument made at trial (or conceivably in a pre-trial hearing). The rule in question specifically contemplates a defense attorney entering a not guilty plea for a client who has confessed to the lawyer that the client is guilty of the crime (emphasis added). If at any time before or during a defended trial a client makes a clear confession of guilt to his or her defence lawyer, the lawyer may continue to act only if the plea is changed to guilty OR the lawyer— (a) does not put forward a case inconsistent with the confession; and (b) continues to put the prosecution to proof and, if appropriate, asserts that the prosecution evidence is inadequate to justify a verdict of guilty; and (c) does not raise any matter that suggests the client has an affirmative defence such as an alibi, but may proceed with a defence based on a special case such as insanity, if such a course appears in the lawyer’s professional opinion to be available. The attorney can argue that the defendant should be released from custody prior to trial, and over what terms of pre-trial release are appropriate. The attorney can advise the client not to do anything else that would make it easier for the prosecution to prove the client committed the crime (e.g. advising the client not to brag about having committed the crime on social media). The attorney can advise the client on how to behave in the courtroom so as to avoid contempt of court sanctions, and how to dress and behave appropriately and in a manner that the court will find to be sympathetic (e.g. wearing a suit to court, acting respectfully, not speaking ill of the victim). There are a variety of defenses not inconsistent with guilt that are available: One can argue that the statute of limitations has run. One can argue that the court that the case is being tried before does not have jurisdiction over the offense. One can argue that the crime was committed prior to the effective date of the law, or after it was repealed (if relevant). One can argue that the law in invalid under human rights treaties or similar grounds for invalidity. One can argue that the defendant has immunity from prosecution (e.g. due to diplomatic immunity, or because the defendant was acting pursuant to lawful military or court orders, or because of an agreement reached with a prosecutor previously perhaps in exchange for testimony in another case, or because the defendant acted based upon assurances from an authority upon whom he was entitled to rely that his actions would not be punished) One can argue that evidence is inadmissible for some legally recognized reason (e.g. lack of authentication or doctor-patient privilege or a marital privilege). One can argue that the facts presented by the prosecution don't establish the elements of the crime charged (e.g. no evidence has been presented that permission to use the property was not granted in a trespass case). One can argue that the facts presented don't establish the elements of the crime charged beyond a reasonable doubt even if some evidence is presented (but subject to limitations on what kinds of doubts may be suggested). One can make an insanity defense, or a lack of capacity to commit a crime defense. One can argue that a justification (e.g. self-defense) excuses the crime. In the U.S., an attorney could implicitly or even expressly make a jury nullification argument, but I do not know if this would be permitted in New Zealand or not. But one cannot argue, for example, that a different individual than your client committed the crime, or that the crime didn't happen at all. This ethical limitation, by the way, is much more restrictive than the limitation under U.S. law, which prohibits an attorney from introducing evidence or testimony known to be false or fraudulent, but does not generally prohibit making arguments based upon possible inferences from the true facts that the attorney knows to be false inferences (i.e. the facts are true, but the conclusions that the lawyer asks the court to draw from the facts are not consistent with what really happened). For example, a U.S. attorney could argue in a case with several co-defendants, that the victim might have been assaulted by one of the co-defendants rather than his client, based upon the evidence available, while a New Zealand attorney whose client had confessed to having assaulted the victim, couldn't ethically make that argument. A defense lawyer in either the U.S. or New Zealand could find a forensic science article showing that the technique used to link the bullet to the gun by police investigators is unreliable and use it to cross-examine a prosecution forensic expert. But, a New Zealand lawyer, unlike a U.S. lawyer, could probably not argue that there is alibi evidence putting your client on the other side of town at the time that the coroner erroneously believes the time of death to have occurred. Of course, any counsel or advocacy provided by defense counsel in connection with a sentencing phase of the proceeding would also not be inconsistent with this ethical rule and, in practice, much of the value that a defense attorney adds to the process for a defendant comes at that stage of the case. |
If the police ask you a question, what response can you make that can't be used as evidence against you? For one reason or another, a police officer has just asked you a question, and you've wisely decided not to provide any response that could be used against you in court. What can you say or do that will not be used against you? It's often thought that "you have the right to remain silent," and so if you simply refuse to answer the question, then your refusal to answer can't be brought as evidence against you. But as mentioned in this answer discussing Salinas v. Texas, there are some circumstances under which a refusal to answer a question from the police can be used as evidence against you. If you simply say "I want a lawyer," is that a response that can't be used against you? How about "I'm invoking my right to silence"? Or do you need to say something longer and more explicit, like "I invoke my rights under the Fifth and Sixth Amendments"? My question is similar to this other question, but not exactly the same. That question is asking what response people can make to "avoid talking to the police and mistakenly incriminating themselves"; I'm specifically asking what response you could make that could not be used as evidence against you in court. I don't think the posted answers on that question clearly answer my question (especially since the top-rated answer seems to be contradicted by the Salinas v. Texas decision). This question is primarily about the United States, but as always, answers related to other jurisdictions are welcome. | This may not be the answer that you're looking for, but my mother always told me the best way to take control of a conversation is to ask a question. Am I under investigation? Did you just try and interrogate me without reading me my Miranda Rights? I'm not contracted with your organization, so what are your intentions? | Generally speaking, witnesses are not legally represented at trial, unless they are also parties. While a witness may choose to seek legal advice about a request or order they have received to give evidence, they would generally be expected to take this opportunity before they actually show up at trial. A witness examination would not normally be adjourned because a witness said something damaging to their own credibility or to one party’s case, and would like to pause and obtain legal advice. One goal of cross-examination is to expose unreliable evidence by obtaining this kind of tactical advantage over a witness. It is up to the party whose case was damaged to try to fix the problem in re-examination or reply evidence. That party may not be particularly interested in protecting the witness’s personal interests. There may be exceptions in specific factual situations, when it becomes clear that a witness does not understand their right to object to giving evidence on the grounds of self-incrimination or some other privilege. A judge may choose to halt further questioning of the witness if there is a real risk of a mistrial or some other procedural unfairness, which can be addressed without unfairly depriving the cross-examiner of their opportunity to challenge the evidence. | Is it the case that Police in the US are unable to proceed with a charge if a victim declines to "press charges" and if so, how are murder charges or even more pertinently, domestic violence charges, brought to court? First of all, it is prosecutors and not police officers who actually bring criminal charges in the legal systems in the vast majority of U.S. states (although not quite all, minor offenses in Rhode Island, for example, are an exception). Second, a prosecutor does have the right to bring criminal charges even if the victim or someone affiliated with the victim does not "press charges". Indeed, a prosecutor can almost always bring criminal charges over the objections of a victim, although "victim's rights" protections in some U.S. states require a prosecutor to confer with a victim before doing so. This said, law enforcement and a prosecutor cannot prosecute a criminal case if they have no knowledge that a crime was committed, so if no one brings a crime to the attention of authorities it is unlikely to be prosecuted. And, law enforcement and prosecutors will defer to the wishes of a victim that charges not be pressed in the legal system against an offender in many kinds of cases (although that discretion is limited in many states in domestic violence cases by statute). | Police continue to investigate Following an acquittal, there are two possible positions for the police: they are certain the acquitted person performed the act but they were not guilty (for all sorts of reasons). The investigation is closed because although the police know who did it, there was no criminality due to the not guilty verdict. The evidence in the court shows that the accused did not commit the act. Ergo, someone else did. The police will keep looking for that someone else. Note that the proposed scenario is highly dangerous for you. First, the exculpatory evidence may be inadmissible, particularly if it is an alibi (see Can I surprise the prosecution with an alibi defense at trial?). To rely on an an alibi defence, it must be raised with the prosecution before the trial. You would have to have said that you were where the phone footage was shot before the trial starts and the police may have therefore discounted you as a suspect from the get go. Second, you are now committing a crime, usually called an attempt to pervert the course of justice and this action may also make you an accomplice to the murder after the fact. You beat the rap on the murder and then spend a lot of time in prison for those two. | In the US, they would not be automatically prosecuted. The prosecutor would have to find out about the testimony, decide to prosecute, and go through all the normal processes they otherwise would, but they have an additional piece of evidence. Per the 5th Amendment to the US Constitution, a witness cannot be forced to answer a question that would incriminate them. If the question was objected to on this ground and the objection overruled, the witness' answer would not be admissible against that witness at trial, and the prosecutor would have to prove the case using other evidence. | Senators, and anyone else for that matter, can ask any questions they want. The witness is required to answer the questions only if under subpoena, and only if the answer of the question would neither require disclosure of privileged information nor violate a 5th Amendment right (which is a form of privilege). Many things that are the subject of an NDA are not privileged information, and the fact that someone claims that something is a trade secret does not automatically make it privileged information. Privileges can be established by statute, court rule or at common law. | So the most obvious is that the U.S. Miranda Rights specifically mention right to legal counsel and right to state provided legal counsel (Public Defenders) if you cannot afford legal counsel (Contrary to some opinions, these guys are very good at their job... it's just that they are also very over worked and private industry pays better). While the right exists in the U.K., the U.K. version of the required reading of rights only speaks to right against self-incrimination, which, if you want a difference is a good place to look. In the self-incrimination clauses, the U.K. and U.S. versions are very different. The U.K. right is a qualified right where as the U.S. is an absolute or unqualified right. This is a distinction which sounds silly upfront but is very serious in how things will transpire. Suppose that you are arrested for the murder of your spouse. You definitely did not do and the "one armed man" definitely did. Either way, you remain silent during interrogation. At trial, your defense is "It wasn't me it was the one armed man" and you intend to present evidence of this. In the U.S. this would be permitted, no further questions asked (or at the least, defeated by other means unrelated to you giving the cops the cold shoulder). In the U.K., this would be first be challenged by the prosecution with "Why didn't you say this when you were arrested?" and your silence on this matter will be used against you. In fact, asking that challenge in the U.S. is very inappropriate, as was recently seen in the Kyle Rittenhouse trial, where the Prosecution did ask that up front to Rittenhouse, prompting a scolding from the judge out of view from the jury. The reason for this is that in the UK there are more strict rules placed on cops during interrogation than there are in the U.S. (In the former, cops cannot lie to you about the facts of the case and they cannot interrupt your statements to them once you start to respond. This is par for the course in the U.S. for cops. In fact, in the U.S., shouting "It was the one armed man" on arrest can do more damage than just shutting up until you're before a judge and jury since that lets the prosecution use the implausibility of a one armed man against you (in both nations, statements that are against your interest do not violate hearsay rules, thus, the cops will only use such a statement against you... it's your job to prove it true or at least plausible enough to make a jury doubt the cops are right.). Also note that this is England and Wales jurisdictions only. Scotland, having its own legal system, retains the right against self-incrimination as an absolute right. Also a big obvious one but the read rights would not be called the "Miranda Rights" by the police or legal community (it may be, by the crooks they are arresting who have no clue that the TV version might be the U.S. one since it's more likely to get shown there than on U.K. TV.). In the U.K. they would be called "Standard Cautions" or "Reading the rights". The U.S. name derives from the SCOTUS case Miranda v. Arizona which was the ground-breaking case that made this required by all police when interrogating a suspect. Additionally, each state has their own version, which generally reads the same way (they explain your 5th and 6th Amendment rights to silence and an attorney) and may vary on asking if you choose to waive the rights upon receiving an affirmative answer that the rights were understood ("With these rights in mind, do you wish to speak to me?" is the proper phrasing). They also are read from cards (business card to index card sized) where the right is printed in English and Spanish and the suspect must sign it as part of acknowledging that their rights were read. | You could bring a motion to compel for failing to respond substantively to a motion to admit which is objected to, just as you could for an interrogatory. The process is the same. Normally, a request to admit would not be deemed admitted if a substantive objection was filed by the deadline, even if there was no express admission or denial. Only if the objection were completely and utterly meritless would a judge be likely to order that the request to admit would be deemed admitted in that case since the response was a de facto non-answer and the objection was a mere sham. @Iñaki Viggers states in his answer: the purpose of a request for admissions is [to attempt] to stipulate --rather than to discover-- the facts on which plaintiff and defendant agree. This is not really true. A request to admit is a discovery tool to prevent you from having to prove up what should be non-controversial facts that might nonetheless take time or documentation to prove at trial and to gather evidence for in advance of trial. The questions in a request to admit are typically ones that the other side would not willingly stipulate to (for example, because they'd like to be able to offer testimony to explain a seemingly unfavorable fact) but may not be able to deny. If a party denies a request to admit and then offers nothing to support the denial in discovery practice or at trial, that party risks court sanctions for the groundless denial. Good litigation practice is also always to include some requests to admit that are effectively outcome determinative to give the opposing party a chance to screw up and essentially default the case by not responding on time. |
Is the term "commercial purposes" defined in Indian law? For example in various laws related purchase of machinery and consumer rights , Intelectual property / patent or in extreme cases pornography or the term "for commercial purpose" is used. has this been defined ? the laws I skimmed through haven't defined this so far. but someone said that even selling something at a low price means commercial i.e selling IP designs or code at less than you would earn or sharing freely available files for a price i.e as a bet (if you found some good files for me , I will give you X rupees) is this true ? edit;; skimming through another law that uses this term is ironically the POCSO Act whoever posseses or stores sexual material involving child for commercial purpose there is also the Comepetition Act which is a market law | No. "Commercial Purposes" is not defined by statute, but it is by case law and rests on the particular circumstances in each case: In the case of Laxmi Engineering Works vs. P.S.G Industrial Institute, the Supreme Court held that whether goods bought by a person are for a ‘commercial purpose’ is a question of fact and it should be decided by taking into account all the facts and circumstances in each case. The Supreme Court further observed that if the goods have been used by the purchaser himself for commercial use then he would be considered to be a consumer under this Act but if that person does not use the good himself and engages some other person to operate that particular good then such person will not come under the ambit of the definition of ‘consumer’. Source | The relevant section of US patent law was already posted in an answer on one of the questions you linked, but I'll repeat it: 35 USC 271 (a): Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent. Merely making a patented invention is infringement; it isn't relevant whether you sell it. It is also infringement if you use it yourself, regardless of who made it or whether you paid them, or whether you would have otherwise bought it from the patent holder. There are some special exceptions for things like certain kinds of pharmaceuticals, but I browsed the rest of 35 USC Chapter 28, and didn't see anything that would appear to be relevant in this case. | Udemy claims that all the videos and course content are copyrighted, but does that also hold for the material of the course? Yes, all the material is copyrighted. Ideas are not, material and content is. it would be really useful to me if I could take a large part of that code ... I want to know if I am allowed, by the law, to use this code for commercial purposes, or is it protected as the intellectual property? Yes, it is protected, specifically it has copyright applied and you may only use it if the license it is distributed under allows you to - in some cases this may be a permissive license, or the code may be obtainable legitimately from another source under a permissive license, in which case its usable. But in many cases, it may not be distributed under a permissive license or indeed any license, and in such cases you will not be permitted to use it. The license under which the code is released depends on the individual course, and in many cases the source code repository or download site for the code for the course. Check their for a license. | The question is not one of copyright law or trademark law, neither of which apply. Instead, it is a question of a common law right of publicity, which in India is recognized in some circumstances, but is not well developed and has many gaps that courts will have to resolve as cases are presented to them. The right of publicity is largely a right to sue if another person without permission profits commercially from someone's likeness without their consent and it is unclear to what extent, if any, it encompasses a right to control the use of one's own image otherwise. It is not in and of itself a crime, even though it is a tort which is the basis for a civil lawsuit for money damages and perhaps injunctive relief. As explained here: In India, the right of publicity is governed by common law and accrues to the celebrity’s individual persona. It is a right to a celebrity’s particular distinguishing and identifying characteristics, features, behavior, likeness, image or other unequivocal aspects. These rights are transferable and are generally used as an individual’s right to control and profit from the commercial use of his or her name, likeness, and persona. . . . The Indian Courts scrutinize the law governing publicity as a right in which an individual’s identity suffers the loss of commercial purpose. Some courts refer to the unauthorized appropriation of an individual’s identity as an invasion of the right of privacy. However, the two bodies of law can be distinguished as follows: while the right of publicity provides the individual with a property right in his or her identity, the right of privacy protects an individual from the publication of private facts that are embarrassing or intimate, or that portrayal of him or her in a false light is offensive. The right of publicity claims usually arise from the publication of information of which the public is already aware; the celebrities thrive on being known and talked about. In Sourav Ganguly v. Tata Tea ltd., Sourav Ganguly returned from an extremely successful tour of England and Tata Tea Ltd., where he was then employed to promote a tea packet, offered the consumers a chance to congratulate Sourav through a postcard which was inside each packet. The company intended to profit from his popularity and his latest success. Sourav could successfully challenge it in the Court before settling the dispute amicably. The right of publicity protects all persons’ rights from birth to death and beyond. When the right of publicity extends after death, it is called the post-mortem right of publicity. However, whether the right of publicity extends beyond life is jurisdiction specific. For example, the post mortem right of publicity has only been recently recognized in the US in California and will soon be recognized other American states too. Legal recognition of post mortem rights of publicity usually permits the deceased’s beneficiaries or heirs to control and financially benefit from the use of a deceased’s image and likeness. The news about the movie Dirty Picture having been challenged by the kin of the deceased actress Silk Smita, claiming that the movie does not depict her personality in the right spirits, is first of its kind in India. The linked examples, showing satirical portrays of a famous U.S. politician, hinge on the issue of what constitutes commercial use, as opposed to other uses. The right of publicity doctrine arose at common law when images of models were used to market consumer goods, when the models for the painting and photographs weren't paid. It has not generally been used to prohibit political cartoons or their 3D equivalent, the basic thrust of which is political commentary or satire that does not suggest endorsement by the subject of the image. In the U.S., such a broad reading of the right of publicity would probably be overcome by the very strong First Amendment protections of free speech. But while India also protects the right to free speech, it, like most former British colonies, tends to be less extreme in the extent to which other generally applicable laws and protections of other individual rights yield to free speech protections than the United States. I doubt that a right of publicity lawsuit by the individual depicted in the linked materials which appear to be basically satirical political depiction would be recognized in India, and it is likely the some of the same considerations that apply to fair use of copyrights or nominative use of trademarks without permission would inform its judgment on the scope of this common law right. But because India's common law in this area isn't very well developed it isn't possible to know with certainty how a case like this one would be evaluated by an Indian court. This said, there are a couple of caveats that should be added. First, it is easy to imagine that the 3D image is obtained by some illegal means which could be tortious (i.e. the basis for an invasion of privacy lawsuit) or criminal. The illegality in obtaining the information could arise not just from common law protections but also, for example, for statutory or contractual non-disclosure requirements. For example, if this was obtained obtained from records maintained for health or educational purposes it could violate laws providing privacy protections in those areas. Obtaining the 3D image surreptitiously and without the knowledge of the person whose image is obtained (e.g. through a secret camera in a changing room) would probably be both a crime and a tort. Second, if the 3D model were used to defraud someone, e.g., by impersonating them on a Zoom call, this would likely be both a crime and a tort under the general principles that apply to fraud in general, as a form of affirmative misrepresentation, even though it is visual rather than verbal. | The Code defines "Source of income" as: lawful, verifiable income paid directly to a tenant or paid to a representative of a tenant. There's nothing to suggest that the occupation is a relevant consideration otherwise. What it would mean is that if the occupation of a person is relevant to their source of income, it would be illegal to discriminate on that basis. I would consider occupation distinct from source of income - I could (but don't) have a family trust that is my source of income, and my occupation is volunteer work. My occupation is very clearly not my source of income. | Under the First Sale doctrine, when intellectual property is imparted to an actual physical thing, the first commercial buyer of that actual physical thing (that is made with proper intellectual property licensing or permission) is entitled to use it without further intellectual property limitations. As Wikipedia explains at the link: The first-sale doctrine (also sometimes referred to as the "right of first sale" or the "first sale rule") is an American legal concept that limits the rights of an intellectual property owner to control resale of products embodying its intellectual property. The doctrine enables the distribution chain of copyrighted products, library lending, giving, video rentals and secondary markets for copyrighted works (for example, enabling individuals to sell their legally purchased books or CDs to others). In trademark law, this same doctrine enables reselling of trademarked products after the trademark holder puts the products on the market. In the case of patented products, the doctrine allows resale of patented products without any control from the patent holder. A different analysis applies if the goods when first made were already infringing. But, in practice, the aggrieved IP owner usually sues the primary infringer or an importer of the infringing goods, rather than a retail purchaser, in those case. | Probably not. The Act applies to: (1) EXCEPT AS SPECIFIED IN SUBSECTION (2) OF THIS SECTION, THIS PART 13 APPLIES TO A CONTROLLER THAT: (a) CONDUCTS BUSINESS IN COLORADO OR PRODUCES OR DELIVERS COMMERCIAL PRODUCTS OR SERVICES THAT ARE INTENTIONALLY TARGETED TO RESIDENTS OF COLORADO; AND (b) SATISFIES ONE OR BOTH OF THE FOLLOWING THRESHOLDS: (I) CONTROLS OR PROCESSES THE PERSONAL DATA OF ONE HUNDRED THOUSAND CONSUMERS OR MORE DURING A CALENDAR YEAR; OR (II) DERIVES REVENUE OR RECEIVES A DISCOUNT ON THE PRICE OF GOODS OR SERVICES FROM THE SALE OF PERSONAL DATA AND PROCESSES OR CONTROLS THE PERSONAL DATA OF TWENTY-FIVE THOUSAND CONSUMERS OR MORE. Colo. Rev. Stat. § 6-1-1304(1). The Rules contain the following related definition: “Commercial product or service” as referred to in C.R.S. § 6-1-1304(1)(a) means a product or service bought, sold, leased, joined, provided, subscribed to, or delivered in exchange for monetary or other valuable consideration in the course of a Controller’s business, vocation, or occupation. There is no case law on point, but generally speaking a house of worship or a church is not considered a business, so it is probably not within the scope of the Act. | In the Netherlands, this qualifies as a deceptive trade practice (misleidende handelspraktijk) and is therefore directly illegal. It's likely also an unfair trade practice, (oneerlijke handelspraktijk) as the claim appears intended for end consumers. This means that the seller cannot count on the consumer knowing anythong about stuffase. It is a dutch implementation of EU directive 2005/29/EG, so similar laws apply in other EU countries. But the illegal per se part might vary. |
Can Twitter demand from GitHub information about users who downloaded leaked source code? Parts of Twitter source codes were leaked and published on GitHub. Twitter asked court to issue subpoena to compel GitHub to reveal "all identifying information" of the user who published it. However, Twitter also asked for "all identifying information, ... , for the users who posted, uploaded, downloaded or modified the data". The court granted their request and issued the subpoena. On what legal grounds can Twitter demand information about users who just downloaded it? | The legal ground is to identify infringers of their copyright. Copyright law prohibits unauthorized copying, and Twitter alleges that there was unauthorized copying, which included downloading. They have a legal right to file legal actions against any and all infringers, and the subpoena process is a means of determining the true identity of the alleged infringers (since real identities are needed to sue them). | You can't own a database; you might, however, own (have) the copyright to a database if you created it or the creator transferred that right to you. You can also possess a copy of a database: the question is whether it is legal. "Leaked" implies that it is taken without permission, so you might be in violation of copyright law by possessing a copy. The only databases that would escape copyright protection would be those US government works, things put in the public domain, and things publically licensed to allow copying. Plus, any database whose content fails to exhibit a modicum of creativity (Feist). A database might be inherently illegal (at least in your hands), so it would depend on what the content is. The first thing that comes to mind is a database from a child-porn website, which contains numerous illegal images: see section 110 of Title 18. "Leaked" information might involve violation of 18 USC 1030 (Computer Fraud and Abuse Act), which prohibits unauthorized hacking. It does not directly prohibit being in possession of a hacked database: but you might still be prosecuted as an accessory after the fact. (That is one of those ad libitum areas of the law where there's no way to know for sure what is and is not "okay"). If they do prosecute you, you might rely on Bartnicki v. Vopper, 532 U.S. 514, where because it was a matter of "public interest", propagation of illegally obtained material was held to be protected by the First Amendment. Also there is the case of the Pentagon Papers. At the federal level, there are no controls over storing credit card information so if you get a copy of the Target or Home Depot hacked database, there's no federal law against that (if we discount "accessory after the fact"), but there are circumstances in Minnesota where retaining such information could be illegal. | If it was something important to the owner, they would file injunctions/suits against everybody that they find the code in, and make those very public. This isn't unlike what the RIAA did to individual downloaders of pirated music files, filing over 18,000 lawsuits. They could subpoena GitHub for information related to IP addresses for who downloaded the code and go after them. It is unlikely that they would get a financial award but they could have the court order them to stop using it. Eventually the RIAA found that filing these lawsuits was more trouble than it was worth and started going after the internet service providers. These reduced the number of lawsuits and forced ISP's to moderate its own users, blocking some sites and protocols that programs like Napster relied on. Basically they shifted responsibility from themselves to the ISP's. | By which law I am enforced to share my personal details (such as my full name) on forum publicly to on-line people which I even don't know (when commenting on random posts)? Contract Law. Google have made it a term of the contract that you use your full name. You can: contact Google and negotiate a change to that term, accept that term, choose not to enter the contract. so I can enforce on my privacy rights without removing my Google Plus account? As a person subject to UK law, your privacy rights involve limiting who and in what circumstances Google can divulge personal private information to. Your name is not personal private information; things like your medical history and bank balance are. Aside from that, you do not have a right to privacy. Anything you do or say that is visible or audible from a public place (like the internet) or a private place where the person in control of that place does not insist on your privacy (i.e. almost everywhere that you are not in control of) is public! | The "Contribution activity" is extracted from repositories hosted on Github. Looking at the privacy statement, Github considers itself as a hosting service for those repositories. See EU Directive 2000/31/EC Article 14 for the exact definition and conditions: Article 14 Hosting Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that: (a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or (b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information. Paragraph 1 shall not apply when the recipient of the service is acting under the authority or the control of the provider. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States' legal systems, of requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility for Member States of establishing procedures governing the removal or disabling of access to information. Article 2(4) GDPR defines that the GDPR does not apply (to Github) in this case This Regulation shall be without prejudice to the application of Directive 2000/31/EC, in particular of the liability rules of intermediary service providers in Articles 12 to 15 of that Directive. Extracting data from the repositories to create a nicely formatted contribution activity list, would still be considered hosting as defined at Directive 2000/31/EC, because Github does not (manually) redact or modify commits. So if you want to hide your contribution activity, you must delete the contributions. And you should not ask Github to do that, but ask the owners of the repositories. And they might have good reasons to deny your request. If an owner of a repository denies your request without a good reason, you can ask Github to do so. But Github would then probably deny that request, because they explain in their privacy statement that modifying the history is not possible: The email address you have supplied via your Git commit settings will always be associated with your commits in the Git system. If you chose to make your email address private, you should also update your Git commit settings. We are unable to change or delete data in the Git commit history — the Git software is designed to maintain a record — but we do enable you to control what information you put in that record. edit To further clarify why Article 14 of Directive 2000/31/EC applies, see case C-236/08 (Google v. Louis Vuitton) where the European Court of Justice clarifies the meaning of that article (ECLI:EU:C:2010:159): In that regard, it follows from recital 42 in the preamble to Directive 2000/31 that the exemptions from liability established in that directive cover only cases in which the activity of the information society service provider is ‘of a mere technical, automatic and passive nature’, which implies that that service provider ‘has neither knowledge of nor control over the information which is transmitted or stored’. Accordingly, in order to establish whether the liability of a referencing service provider may be limited under Article 14 of Directive 2000/31, it is necessary to examine whether the role played by that service provider is neutral, in the sense that its conduct is merely technical, automatic and passive, pointing to a lack of knowledge or control of the data which it stores. The way Github creates/shows the contribution activity is in my opinion technical, automatic and passive. That means it is not liable, and that implies that the GDPR does not directly apply, unless data is unlawful, and someone notifies Github of that: The restriction on liability set out in Article 14(1) of Directive 2000/31 applies to cases ‘[w]here an information society service is provided that consists of the storage of information provided by a recipient of the service’ and means that the provider of such a service cannot be held liable for the data which it has stored at the request of a recipient of that service unless that service provider, after having become aware, because of information supplied by an injured party or otherwise, of the unlawful nature of those data or of activities of that recipient, fails to act expeditiously to remove or to disable access to those data. Surely the GDPR might be the reason data is unlawful. But you need a reason, in particular based on Article 17 ("right to be forgotten"). For example if personal data of a 12 year old child is processed without permission of it's parent. Without such a reason the legitimate interest of the repository owner will probably prevail (who wants to keep the git history complete). | Both. The user made an infringing copy with the upload, the developer did with the download. Further the ToS between the app owner and the user will not protect them from being sued by the owner of the copyright. They don't have any ToS with them. | I'm pretty sure that under GDPR, you can indeed request them to send all data they have on you. If it's a complex request, they may charge you something like £10. If they have a lot of data on you, they may list the categories of data they have and ask you to pick one, rather than them having to collect and send everything. They should respond within one month, but iirc in the UK implementation, they can inform you (within that month) that they will respond within three months instead. For the rest, I only know current Dutch law. GDPR is not that different from what we already had (in general terms) and in many cases it even extends it. Under our law (WBP), you can also request a correction of the data in case it is incorrect, or deletion if they no longer need it for the purpose for which it was collected and stored. I don't really know how that works out in practice though, as Facebook can of course claim that "being able to connect you to your friends when you sign up for WhatsApp or Facebook with that number" is a legitimate purpose (in their eyes). They might also not have your full name and therefore not be able to connect your data to your request. Or, perhaps, they have only your full name (and there are probably more people with your name), so they'll have a hard time verifying that it's really your data which they would be handing over or deleting. The company is required to verify your identity before acting on your request. How they implement that is up to them. Under Dutch law, if I remember correctly, any data that can be connected to your person by any party is personally identifiable information (PII). While Facebook might not be able to find who's behind a phone number, your carrier most certainly can. Therefore, the data falls under PII protection laws and they will have to implement a way to verify you and get you your data. Finally, whether your local laws apply to Facebook, I don't know exactly. There's lots of information on this though, so you should be able to find it. Generally, countries say that if something happened within their territory (e.g. you signed up for WhatsApp while in the UK), their law applies. Companies, I've read, will instead try to claim that their main office is in SomeCountry and therefore SomeCountry's laws apply. But I'm pretty sure you'll be able to find a Facebook office somewhere where GDPR applies, so that's probably fine. While not an exact answer and while I am not sure about everything, I hope this gave you some pointers to go on! | We can assume there was a meeting of the minds when the contract was drafted, and both parties expected payments to me made based on product usage. Plaintiff alleges that this did not happen. Thus plaintiff is indeed alleging that the contract was breached. Now plaintiff alleges that defendant broke the contract, while defendant counters that plaintiff broke the contract. "[T]o be determined by tracking software" is woefully ambiguous. The court will want to know which party drafted the contract, as disputes arising from ambiguity are often resolved in favor of the non-drafting party. |
What is "18 C.J.S., Copyright and Literary Property, § 113"? I am working on a research paper on copyright, and I was reading O'Rourke vs. RKO Radio Pictures. It cites "18 C.J.S., Copyright and Literary Property, § 113". What is it citing? | Corpus Juris Secundum, available here for a pretty penny. | Physical content The main consideration with physical content is that reading it does not require making a copy, so uncomplicated copyright law is what’s relevant. Copyright law is about making copies (also distributing). Purchase a novel (a physical book which was legally obtained). There is no copying involved (you do not in fact make a copy in your mind, if you're a human). Under the First Sale doctrine, once a copy is sold by the rights-holder (e.g. the publisher, initially to the bookstore or distributor), that owner can do whatever it wants with that specific copy, including reading or re-selling (and anying thereafter can likewise). Books are sold, not licensed. Copyright relates to copying, not reading. It’s true that all (legal) rights are reserved, but the power to prevent resale is not a right. Book (or anything else) on the ground. As above, with the complication that you aren’t at least immediately the rightful owner. But, you don’t have to be the owner of a protected work to read it (otherwise libraries would not exist). The rightful owner might unsuccessfully try to sue you for reading their property, but reading does not cause damage, and your act is innocent (not even negligent), and not wrongful. Eventually (depending on jurisdiction) you may become the owner if the original owner does not reclaim the book. Reading a copy made by someone else. See above about the relationship between reading and copyright. The teacher might maybe be liable for infringement, but you are not culpable (assuming you didn’t encourage the teacher to make an illegal copy). Digital content However, every item of digital content has to be copied many times, in order to actually be read. E.g. a copy is made to video display memory from RAM, which is copied some number of times from RAM to RAM as the program formats and sizes, ultimately reading a copy stored on disk storage (which is installed from.... using N temp files) Typically what happens is that you acquire a copy of a license to use the content. Some number of copies may be statutorily permitted, e.g. the myriad transitory copies created across the internet as you download the work, or on your computer as you install it. The law addresses this matter in part at 17 USC 117, saying that it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided: (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or (2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful. Since Congress chose the word “program” rather than “file”, the plain reading of this is that permission is always required to read digital content. One may assume, when you purchase an electronic book at the store (you thus own the recording medium), that the work also comes with specific permission to make those automatic copies required to actually read the book on a computer. In order to read the book you must make some number of copies. Seeing stuff on a web page. Let’s also assume that the material is on the page without permission, but you don’t know that, and it just jumps out at you. This raises an interesting question regarding statutory language and web pages. The statutory language is not at all clear about link-clicking (the statutes don't say anything about "links"), and I don't know of any relevant case law (probably because it would be ludicrous to go after an innocent link-clicker) Infringement is defined in 17 USC 501(a): Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A(a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright and if you infringe, you may be liable. 17 USC 106 spells out those rights: the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; … (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; … When you go to a web page and click a link, are you reproducing the protected material? Or is the website owner reproducing the material, and pushing it onto you? I don’t know of any decisions that address this kind of technical question. There is no question that the person hosting the infringing material is liable, the question is whether you would be as well? It would be highly unjust to hold the innocent link-clicker responsible. There is a bit of protection for innocent infringement in 17 USC 405(b) Any person who innocently infringes a copyright, in reliance upon an authorized copy or phonorecord from which the copyright notice has been omitted and which was publicly distributed by authority of the copyright owner before the effective date of the Berne Convention Implementation Act of 1988, incurs no liability for actual or statutory damages under section 504 for any infringing acts committed before receiving actual notice that registration for the work has been made under section 408, if such person proves that he or she was misled by the omission of notice. In a suit for infringement in such a case the court may allow or disallow recovery of any of the infringer’s profits attributable to the infringement, and may enjoin the continuation of the infringing undertaking or may require, as a condition for permitting the continuation of the infringing undertaking, that the infringer pay the copyright owner a reasonable license fee in an amount and on terms fixed by the court. (c) Protection under this title is not affected by the removal, destruction, or obliteration of the notice, without the authorization of the copyright owner, from any publicly distributed copies or phonorecords. (You could be prevented from further use of the infringing material, and liable for specific lost profit). Infringement is not defined in terms of what you know or believe about the copyright status of work. Nevertheless, I would expect that in addressing the question of whether a person had in fact made a copy that they would look at the mental state of the individual, looking for mens rea. This could distinguish clicking a link that unexpectedly pushes protected material onto you, versus attempting to obtain protected material by clicking on a link. | The text in the image means, For works published after 1989, a copyright notice is not required for a work to enjoy copyright protection. If you use an unmarked work in a way that violates copyright, you cannot defend your use by claiming that the unmarked work is not under copyright. In most nations, all creative works are automatically under copyright per the Berne Convention. Prior to widespread adoption of the Berne Convention, authors needed to explicitly write a copyright notice on each work to make it covered under copyright. A notable example of such a failure to mark a work is Night of the Living Dead published in 1968, which did not include correct copyright markings and became part of the public domain immediately. Such an event can no longer happen under modern copyright laws, since copyright now applies by default, not because of a marking. The only effect copyright markings have in modern use is on innocent infringement. If you infringe a modern work the doesn't have copyright markings, you still infringe copyright, but you may be able to reduce the penalty by claiming that you didn't know copyright applied to the work. If the author includes a copyright notice, then you cannot claim ignorance of copyright. | "Pastiche" is a literary, not a legal term, and as a professional coder, I would not use it to describe code that to some extent imitated other code. The legal question here is: is your code a derivative work of the code it is based on, and if it is, did you have permission to make that work. Copyright, in an Berne Convention country, which includes the EU, does not protect ideas and concepts, it protects expression. It protects the choices of words and symbols, and other forms of expression. If all you did was study example code, presented for educational purposes, and then write code that performs a similar function, using the same general techniques, then I don't think you have infringed copyright. That, after all, is why people post code to Stack Overflow and similar sites, to allow them to learn how to use specific coding techniques, including in commercial projects. I have used techniques posted to SO to do coding as part of my paid job. The usual test for copying under US law is "substantial similarity". This takes into account cases where there is essentially only one way to say or code something. I don't know the exact tests under the various laws of various EU countries, and they will not all be the same. But I suspect that on this point they are, well, substantially similar :). I can't advise on your specific situation. But if it is as described, I don't think you have a problem. | Yes, except for the part where you say "thus". Copyright protection isn't limited to published works, though in the past this was the case with US law. Current US law defines publication as the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication. Web distribution is one way to distribute a protected work. The distinction between published and unpublished works matters in terms of registration requirements, it figures into the question of the nationality of the author, the duration of protection for a work for hire and (pseudo)anonymous works, as well as the duration of protection for works created before January 1, 1978 but first published between then and January 1, 2003, and so on. The US Copyright office provides guidance that derives from court cases, and they have this to say about published vs. unpublished. They give as an example of publication ("Offering to Distribute Copies or Phonorecords to a Group of Persons") Publication occurs when copies of a photograph are offered to clients, including but not limited to newspapers, magazines, agencies, wire services, and websites with a license permitting further distribution or display of the photograph. also An offer by the copyright owner on a public website to purchase and download an app that they developed and made accessible on that website constitutes publication of that app. German copyright law makes mention of "publication" as well, for instance The right of publication and of exploitation of the work accrues jointly to the joint authors; alterations to the work shall be permissible only with the consent of the joint authors. However, a joint author may not refuse his consent to publication, exploitation or alteration contrary to the principles of good faith. Each joint author shall be entitled to assert claims arising from violations of the joint copyright; he may, however, demand performance only to all of the joint authors. §6 says that (1) A work shall be deemed to have been published when it has been made available to the public with the consent of the rightholder. (2) A work shall be deemed to have been released when copies of the work have been offered, with the rightholder’s consent, to the public or brought to the market after their production in sufficient quantity. An artistic work shall also be deemed to have been released when the original or a copy of the work has been made permanently available to the public with the consent of the rightholder. One would have to inquire into the specifics of German law to know if "putting one copy on a website" constitutes being brought to the market after production in sufficient quantity. | Yes So far so good. This is a copyright violation but it is probably fair use - certainly there is case law permitting a copy of a backup digital asset to be made so I don’t see why a similar argument wouldn’t work with backing up a physical book. Clear copyright violation. Alice can rent out the original under the first sale doctrine but the ‘backup’ is not so protected. It’s not fair use because it’s use is commercial, the work is a type of work the author expects to profit from, the entire work has been copied and the use is deleterious to the market i.e. the renters are less likely to buy an original - it falls foul of all four factors of the fair use test. | The modern rule in the UK is that copyright lasts until the end of the calendar year following 70 years after the death of the author. So if the author died in or later than 1953, it would be under copyright under this general rule. However, this wasn't always the rule and the museum speaks of a copyright revived in the 1990s. So I went down that rabbit hole of historical UK copyright legislation. I personally find it interesting, but it turned out to not be entirely determinative. It all turns on publication date and date of death of the artist, neither of which I can find, with the museum only stating the artist was active in the 1930s. But even assuming the most favourable facts for this to still be copyright under a "revived" copyright, the latest date I can find for copyright to still remain under that regime is end of 2015. Per Copyright Act 1956 s. 3(4)(a): in the case of an engraving, if before the death of the author the engraving had not been published, the copyright shall continue to subsist until the end of the period of fifty years from the end of the calendar year in which it is first published; For the fact pattern I'm outlining, we must assume the author died before publication. As for the engraving bit, s. 48 defines that lithographs are engravings, and while I am far from an expert in this field, skimming the Wikipedia article on lithography, it does seem quite possible the poster could be a lithograph. I'll note here since you bring up who precisely would be the owner of the original copyright, that it does seem likely that the poster was a work for hire, following the provisions of s. 4(2). As such, the copyright would have indeed ultimately transferred to British Rail. Jumping ahead a bit, the more precise year which the museum states is "the 1990's" is 1995 (we'll get to why). So in order for copyright to have first expired as per the museum's statement and the authors active years, we must assume a publication date between 1930-1945 (or thereabouts, I'm not being super careful in this answer about the months things happen in, so there may be accumulation of off-by-one errors). Because of those years, I now have to quickly address why the Copyright Act 1911 isn't relevant. The transitional provisions outlined in the Seventh Schedule reveal that only for photographs are the copyright duration provisions maintained from the 1911 Act. Now we can jump into the modern law, the Copyright, Designs and Patents Act 1988 (CDPA). The transitional provision in the Schedule 1 s. 12(2)(b) directly maintains the 1956 copyright duration in this case which given our possible publication years, would have led to copyright expiry sometime between 1980-1995. However, in 1995, the UK passed The Duration of Copyright and Rights in Performances Regulations 1995. This was in accordance with European legislation harmonizing copyright duration, in Directive 93/98/EEC (itself since replaced by Directive 2006/116/EC). Side Note: 1995 is a peculiar year for copyrights in Europe due to that directive and so is exactly where I started my research for this answer, because it caused weird quirks for copyright terms in some countries in some cases. For the UK, s. 5 of the regulation amended the CDPA, basically establishing the general European standard of copyrights expiring 70 years after the author's death. More importantly for our case though is the regulations own section explaining in which cases the new copyright term expires. In s. 16: The new provisions relating to duration of copyright apply— (a) [...] (b) [...] (c) [...] (d) to existing works in which copyright expired before 31st December 1995 but which were on 1st July 1995 protected in another EEA state under legislation relating to copyright or related rights. Now, I'm not going to go through and look at all the EEA contries legislation to confirm, but it seems incredibly likely that one of them would have had engravings protected for life+70 in 1995, given that's what Europe has now standardized on (since we're assuming pre-publication death for an author who was active in the 1930s). Notably, s. 17 even defines cases of expired works re-entering copyright as "revived copyright", matching the terminology the museum's statement used. It would have been great if the 1995 regulation explicitly spelled out the relationship with CDPA's Schedule 1 s. 12, but in judicial interpretation, newer legislation takes priority, so the 1995 law would control. Note: The answer is getting long enough so I'm not going to fully research/cite this, but for regulations vs. legislation, we have a weird case of a regulation amending a statute. I'm fairly certain this is due to UK Acts passed for European Community membership elevating regulations to primary legislation when they are passed for compliance with European law. So given our assumed facts, the poster would have revived copyright per the 1995 Regulations. However, you may note (as I belatedly did after first posting this answer) that even given revived copyright, that revived copyright is still life+70. And the assumptions made for copyright revival under this clause requires a posthumous publication date of 1945 at the latest. This means at best any copyright under these particular circumstances would have expired in 2015. There is a bit of a middle ground here. If the poster is not a lithograph, or the publication was not posthumous, the work would have gained a life+50 term per aformentioned Copyright Act 1956 s. 3(4). But then for copyright to expire and be revived, we still have to assume a 1945 death date at the latest. Alternatively, instead of copyright revival, it could have gotten extended from life+50 to life+70 per the 1995 Regulations s. 16(c). But because we are more than 20 years from 1995, it mathematically works out that it doesn't matter anymore and we can just work with the life+70 rule. A combination of 1995 Regulations s. 16(c) and posthumous publication though does actually give another reasonable way for the work to still be under copyright. If published in 1988 before the CDPA entered into force, it would have followed the cited 1956 rules of copyright expiring 50 years after publication. The 1995 Regulations s. 16(c) specifies that longer existing terms can continue. So that results in 2038 as a latest possible year through this method. In the end I think there are two or three reasonable interpretations: The museum is correct the work is under copyright, but incorrect about the reason. It's instead because the work is under copyright because the author died after 1953 (or is still living), or The work is still covered under the 50 years after posthumous publication rule for engravings established in the Copyright Act 1956 (publication years 1973-1988 for copyright expiry at the end of calendar years 2023-2038). The museum is correct that copyright was revived, but I can't find a way for this to be true and for the work to still be under copyright (with 2015 the latest year I can find for the given facts). Note that this is my own reading of legislation, please take it with a grain of salt. | I am not sure what the claim in the textbook means, and have been unable to find any other reference to support or explain it. Headnotes are always “presumptively correct” in the sense that they are professionally authored, so you can generally presume them to be correct, unless they conflict with the full text of the decision. But I’m not aware of any statute or case law that creates a formal presumption in relation to headnotes. Perhaps you could write to the author and ask if that’s what she means. What is unique about England and Wales, as the origin of the common law and the associated tradition of law reporting, is the preeminence of the Incorporated Council of Law Reporting. The ICLR was established in 1865 and publishes all official law reports in England and Wales. Arguably unlike the official or authorised reports of other common law jurisdictions, the ICLR’s reports are considered to be more authoritative even than the judgment published by the court itself. The ICLR’s website explains: However important the case, the transcript of a judgment does not have the same value, as a record of the decision contained in it, as a full text law report. Where, therefore, a law report is available, particularly where the case has been reported in one of the official series, The Law Reports, published by ICLR, it must be cited and referred to in that version in preference for any other: see Practice Direction (Citation of Authorities) [2012] 1 WLR 780 … the combination of a summary report and a transcript does not enjoy the same status as a full text law report where one is available, for reasons which will become clear once one appreciates the amount of careful editorial work that goes into preparing the full report. In other jurisdictions, the official law reports are treated with less reverence, although it is still normal for courts to require them to be cited in preference to primary sources such as slip opinions. Nonetheless, further down the page the ICLR makes clear that the full text of the judgment takes primacy over the headnote, just as in other jurisdictions: Although the headnote adds value to the report of a judgment, it is the judgment itself which sets the precedent and binds subsequent decision-makers. Nevertheless, a good headnote is a work of meticulous legal draftsmanship and can withstand the closest of textual scrutiny. Accuracy is all. Make the proposition too general, and the principle appears either so watered down as to be meaningless or, more dangerously, misleadingly wide in its application. Draw it too narrowly, and it fails to express the principle on which the court based its decision. At its best, a headnote is a precious distillation – the single malt of legal learning. |
Is the saying that "cops can use anything you say against you" overstated or understated? Is everything one says to a cop in the course of an enquiry really admissable as evidence against them? Even if they deny allegations? Why is that? | It is somewhat understated, because your silence can also be used against you. In Salinas v. Texas, defendant Salinas was "just talking" to police, not in custody, and his silence (as opposed to shock and outrage) at the question of whether shell casings found at the crime scene would match his shotgun. This "adoptive admission" was introduced as evidence against him. In order to prevent your silence from being used against you, you must invoke the 5th amendment. There are two exceptions to the rule that you must invoke the 5th to be protected by it. First, a criminal defendant need not take the stand and assert the privilege at their own trial. Second, a witness’s failure to invoke the privilege must be excused where governmental coercion makes their forfeiture of the privilege involuntary (Miranda). In lieu of coercion, you must preface your silence with an invocation of your 5th amendment rights. | A related post is here. Are police required to record in car dashcam video for traffic tickets in NJ, USA? Probably not. Is there any way to find out if they aren’t telling the truth? Ask and hope you are not lied to. Can I contact the police chief, mayor, or municipal judge? You can contact the police chief or mayor if you can get through to them. They are not required to answer you unless you make a formal discovery request or public records request. You cannot make ex parte contact with a judge when the other side's lawyer (in this case, the city's lawyer) is not present. How can I defend myself in court trial if the judge always believes highly credible police officers over defendants if I don’t have video? You can tell your side of the story under oath with any details that makes your story believable. You are correct that the judge will usually believe the police officer and not you. So, usually you will lose. This is one reason that most people try to plea bargain their traffic tickets, rather than going to trial. Due process rights give you an opportunity to tell your side of the story when contesting a ticket, but it doesn't give you a right to win (even if you are actually in the right) if the judge or other trier of fact doesn't believe what you have to say. It does not appear that you have a right to a jury trial in a traffic case in New Jersey, although this depends to some extent on the kind of violation being charged, so you are probably stuck with the beliefs of the municipal court judge about who is the more credible witness. | The definitive answer to the question "could I be charged" is always YES. I refer you to the Manassas City teen charged with child pornography. Child pornography laws were put in place to protect children and prevent them from being exploited by having sexual pictures of them taken and distributed. In this case, the picture in question is of the young man’s own genitals, which would make him both the perpetrator and the victim. Apparently the lead detective in the Manassas City teen's case was himself a pedophile and just wanted an excuse to use force to photograph the teen's erect penis. Why would you assume this "girl" is a "17 year old girl" or a "15 year old girl" and not a 39 year old pedophile Manassas police officer? | Relying on this version, proof of truth is only allowed in order to establish a "public interest" defense or for a "necessary defense"; but also "if an official is charged with the commission of an act in the exercise of his office". Good luck with "necessary defense". It is not a defense to say "But what I said is true". However, if the defamed person has been convicted in court of said act (the defamatory statement) then there can be no punishment. | The situation you describe is extremely unlikely First, you will have been required to give a statement to the police who would have asked you most or all of the questions that you suggest before anyone gets anywhere near a courtroom and likely before any arrest has been made. That statement will be part of your evidence in chief. As in "Is this your statement?" "Yes". "Is this your video recording?" "Yes". After that, your evidence in chief is pretty much done. A witness of fact (rules for expert witnesses are different) can only testify as to what they personally sensed and what their state of mind was. So questions about what you saw, heard, tasted etc. are all perfectly legitimate as are questions about what you thought or felt. You are required to answer these questions honestly - if that means "I don't know" then say "I don't know". All of the hypothetical questions look fine but as I said, they will all have answers in your police statement. The only one that's off-limits is ""Do you feel that a crime has been committed?" - nobody knows if a crime has been committed; that's why we're having a trial. | If the police are able to attain a warrant that for some reason identifies your room and your things in particular, then they can search your room and seize your things. Ideally the police would have to give the judge or magistrate reasonable suspicion that their target has put some evidence in your room, or that some of your things are evidence relating to the purported crime. In practice, warrants err on the side of generality, so the police can easily get a warrant to search "the whole residence" without contemplating the nuance of which tenants use which rooms. Likewise, when determining what to seize, the police can certainly choose to err on the broad side and seize anything that meets the criteria of the warrant without stopping to determine who owns what. "Respect" of any sort is not a legal factor in the execution of an approved warrant. | In the U.S. there is no law that requires you to ever say a word to a law enforcement officer, and lawyers generally encourage you to minimize what you communicate to them anyway. I can't think of any situation where a request for information could not be demanded in writing. As a practical matter, in some situations you will probably be subject to some extra scrutiny and inconvenience: E.g., in a stop-and-identify situation, you could hand the officer a note saying, "Please make any requests for information from me in writing." The officer may infer that you have some disability, but if he does not (or discovers you don't) he may get irritated enough to subject you to harassment for "contempt of cop". Of course, if you can understand him, you are still required to obey an officer's lawful orders no matter how they are communicated. But "speak" is not a lawful order. | In all likelihood, the judge's order related to data collection and reselling is not legally enforceable. They weren't parties to the expungement action, so the judge doesn't have jurisdiction over them. And, the First Amendment protects the right to say truthful things pretty absolutely. Arguably, if the sites provided the information without making clear that it might not be current because records were expunged or corrected, there might be a claim for negligent misrepresentation, false light, or even defamation, but I seriously doubt that even those claims would hold up. The language in the order might cause sites to comply out of not legally justified concern, or just a desire to be accurate, even if it is not enforceable. So, it doesn't hurt to bring that information to the attention of such sites and ask them to take down the information. But, when push comes to shove, I very much doubt that you would prevail in court enforcing that order against them. Certainly, if you do nothing, they will do nothing, because they are not psychic and have no idea that the court order related to those records has been entered. Even a valid and enforceable order directed at a party over whom a court has jurisdiction is not effective until the person ordered to comply with it has notice of the order. And, there is no system that gives sites like that notice without you taking action to inform them of an order. |
Would a political poster implying that a politician will be killed by angry citizens constitute a legally-actionable threat under U.S. law? In the U.S., freedom of speech does not extend to serious threats to cause harm to another. Don and Ron are two reactionary politicians. One election season, John, who hates reactionaries with a passion, creates two political posters: The first has the text "Reactionaries and Bigots Take Note: WHAT GOES AROUND COMES AROUND" and shows Don and Ron with their heads being forced into two guillotines by angry working-class citizens. The second has the same text, but shows Don's and Ron's severed heads (along with those of several other reactionary politicians) impaled on pikes. Would either of John's posters (one showing two reactionary politicians presumably about to be killed by angry citizens, the other showing the reactionaries' heads postmortem without directly implying that angry citizens did the deed) be on-the-nose enough to constitute legally-actionable death threats against the politicians depicted? | Neither of the posters in question would constitute a "true threat" which can be subjected to legal sanctions consistent with the First Amendment. The nature of the communication, in the context provided in the question, is clearly metaphorical. The U.S. Supreme Court, incidentally, will be hearing arguments in the case of Counterman v. Colorado on April 19, 2023, pertinent to this question, in which the issue presented is: Whether, to establish that a statement is a "true threat" unprotected by the First Amendment, the government must show that the speaker subjectively knew or intended the threatening nature of the statement, or whether it is enough to show that an objective "reasonable person" would regard the statement as a threat of violence. This would, however, be a far closer case under British law, as illustrated by a recent case in which a British teenager was sentenced to 11 year years in prison for inflammatory Internet postings that it was established were a major factor that pushed the people who carried out mass shootings at a Buffalo, New York grocery store and a Colorado Spring gay nightclub to carry out their attacks. As reported by CNN: Daniel Harris, 19, from Derbyshire in northern England, posted videos shared by Payton Gendron, who pleaded guilty to the shooting in Buffalo, as well as videos linked to Anderson Lee Aldrich, the suspect accused of killing five people in a mass shooting at an LGBTQ nightclub in Colorado Springs, Colorado, last November, the court heard, according to PA. Sentencing Harris in court in Manchester, northern England, Judge Patrick Field was quoted by PA as saying, “What they did was truly appalling but what they did was no more than you intended to encourage others to do when publishing this material online.” The postings made by Daniel Harris which led to his conviction would almost certainly not have been actionable under U.S. law which has much stronger First Amendment protections than the U.K. | You have misread the DMLP page. In Pennsylvania, it is illegal to record a conversation if you are a party and if the other party does not consent. The fact that federal law doesn't ban something doesn't mean that states can't ban it. There is generally a presumption that when both the feds and the states can legitimately regulate something, the feds weren't trying to preempt all state laws on the topic. While people often say "federal law takes precedence over state law," the normal rule is that both laws apply; the federal law only blocks the state law if the feds wanted to block said state laws. So far as I can tell, the federal law has never been held to preempt two-party consent laws; the point of the federal law was to restrict recording, not extend it. It's like how federal law doesn't prohibit taking hostages inside the US to coerce a private company into doing what you want (anti-terrorism laws might, I guess, but the federal hostage-taking law doesn't); while the federal law excludes most hostage-taking in the US, that doesn't mean that it's legal to take hostages. Congress sometimes wants to establish nationwide standards for something, but the presumption is that they didn't. | One could make a First Amendment challenge to mask requirements through either the Free Exercise Clause or the Free Speech Clause. Neither approach is likely to succeed. Because going without a mask is not recognized as "expressive conduct," it is not protected by the Free Speech Clause A free-speech challenge would likely also fail for two reasons. As you correctly suggested, the First Amendment protects more than just speech, also protecting "expressive conduct," such as flag burning, dancing, and wearing armbands. Of course, literally any conduct could have some secret expressive meaning in the mind of the person carrying out -- "I shot him in the face to say I didn't like him" -- so we have a question of where to draw the line between what expressive conduct does and does not receive the strong protection the First Amendment affords to speech. The Supreme Court detailed that test in Texas v. Johnson, 491 U.S. 397 (1989), and it's now generally formulated as asking two questions: Did the speaker actually intend to convey a particularized message through his conduct? Are the people who see the conduct likely to understand that message? At the Sturgis rally, or at the statehouse protests over COVID restrictions, or some similar event that is explicitly opposed to masks, refusing to wear a mask goes a long ways in communicating an opposition to the mask requirements. But in the vast majority of cases, no one you run into in the normal course of daily life is likely to recognize that you are not wearing a mask because you are trying to communicate a message, let alone decipher what that message is. Do you believe that mask mandates are tyranny? That COVID-19 is a hoax? That life is meaningless and we should all welcome the hastening of human extinction? None of that is clear to the average viewer, which is who the courts are going to be concerned with. Because refusing to wear a mask is generally insufficient to convey a specific message, I'd argue that it is not expressive conduct. Because mask requirements are neutral as to religion and generally applicable, they do not violate the Free Exercise Clause. A religious challenge ("My religion prohibits wearing masks") is likely to fail because "the right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).'" Employment Div. v. Smith, 494 U.S. 872, 879 (1990). This means that if the mask ban generally applies to everyone and you just happen to belong to a religion that forbids mask-wearing, you can't use that affiliation to escape the law's requirements. (The outcome may be different when you run the problem through the Religious Freedom Restoration Act or state-level analogues, which impose more stringent tests for infringements on religious liberty.) | Ducks are ducks, not people. It might surprise you, but even a hypothetical duck that could talk is a type of bird and is considered a waterfowl and wild game but not a person or human. As such, you can not commit any crime such as assault against it. In fact, provided that the lemonade stand owner has a hunting license and this is not in a zone where you can not hunt, such as inside a town, he could have shot the bird without repercussions - because a duck can be hunted. Threatening game birds is not covered by any law. Only would the lemonade stand owner have glued the bird to a tree he would have committed a crime, because gluing birds somewhere would be considered animal cruelty in most jurisdictions. As the duck is a bird and not a person, it can not commit any crimes, such as harassment. If a duck is a person... Assuming that there is such a place where duck is a slang term for a person, or where ducks are considered people, then the pattern is different: Such as duck would indeed perform a repeated action that is very much aimed at annoying the lemonade stand owner. But that is not necessarily legally harassment: In Germany, § 238 StGB is aimed at stalking and requires the aim of inciting fear, § 185 StGB is for insulting speech, including harassing speech, § 186 StGB is for defamation, and § 240 StGB for coercion through harassment. A charge under those would be tedious. In the United Kingdom, the English Protection from Harassment Act 1997, does not define harassment as any specific pattern. Scotland's variant reads a little simpler, and makes harassment for harassment's sake illegal. These laws might be applied to the duck. Many of the United States federal laws will simply not apply to the situation. Title VII of the Civil Rights Act of 1964 is about sexual harassment in the workplace, Title IX of the Education Amendments Act of 1972 is for schools, and the Fair Housing Act does deal with home purchases and renting. All seem inapplicable. If the threat of gluing someone to a tree is a real threat under the law depends very much again. In Germany, it might be interpreted as too hilarious to be considered a true threat, but humiliating enough to constitute one of the insult laws, but the lyrics do not offer enough facts to make a proper analysis for this part. | In the US, obscenities, insults, racial slurs and so on are legal, owing to the First Amendment. An actual, believable threat to maim you would not be legal, under Cal. Penal 422, but "I oughta punch you" would not be a criminal threat. Some forms of aggressive driving constitute reckless driving, if they are driving "in willful or wanton disregard for the safety of persons or property". It is also against the law to follow too close (you must follow reasonably and prudently). Exceeding the speed limit is a violation of Veh. Code 22352, even if it's to pass a guy on a bike. Of course, we can't tell if you are obeying the law, but even if you were doing something illegal in your biking such as blowing away a stop sign, "the other guy was bad" is not a defense against a citation for illegal driving. | ...the public is susceptible to misinformation by bad actors in the financial system and therefore are protected by the SEC... The SEC governs fixed laws about financial transfers, disclosures, etc., and investigates illegal acts regarding those laws where there are quantitative facts, i.e. who moved how much money to where, who engaged in information for insider trading, and other situations based on hard evidence. Bad actors are deterred by the fact that can be prosecuted for their crimes by the SEC and other authorities. Shouldn't... political campaigns be audited for truthfulness? There is no government authority that audits or regulates political ads and/or claims; such authority or laws would clearly violate the First Amendment to the United States Constitution - Wikipedia as to the government regulating or attempting to control or manipulate free speech. In a non-partisan fashion, government authorities can and do routinely supply publicly available documents that can be used by the public, fact checkers and the press. False political claims are investigated by the press and various non-profits, also under the same 1st Amendment protections so that the press can operate free of government intrusion. See https://www.google.com/search?q=political+fact+checking for different political NGOs and media outlets which do fact checking. Such resources themselves can be fact challenged and partisan themselves, of course; news outlets can be under the editorial control of a political agenda, and a "fact checking" website or NGO can be funded by partisans. ...why shouldn't the same be done in the political system? Within a political system such as the US, people are responsible for their own thoughts and actions; and they are responsible for assessments of what may or may not be factual, and for what they believe (which, of course, can be removed from a factual basis). The idea that a government should be involved in auditing or otherwise having control over political speech is a political question, not a legal question. | Overview, reasonable judgement As with the frequently used standard, the "reasonable person", whether an assembly is "peaceable" or not is a question of judgement. In some cases it is clear. A group throwing stones and Molotov Cocktails at a group of opponents, or at the police, is not acting "peaceably". What about a group holding signs and chanting "No Justice, no Peace"? Calmly singing 'We Shall Overcome"? In short, there is no bright-line separating "peaceable" from not. It is not like a trespassing case where one either did or did not cross a boundary, or a speeding case where one did or did not go faster than the limit. There are, however, an number of fact patterns in which assembled protesters have been held not to have justified arrest, and various other circumstances in which dispersal and arrests have been held justified. See the cases below. Each person must use judgement as to whether a group's actions are "peaceable" when deciding whether to join or remain a part of such a group. A police official must make a similar judgement when ordering a group to disperse. Later, a court may have to make a similar judgement when deciding whether someone accused of "riot" or "disorderly conduct" was within his or her constitutional rights, or if a police officer acted unconstitutionally. The circumstances and the details of the actions will matter. The right of assembly, like the right of speech is subject to "time, place, and manner" restrictions, so long as such restrictions are content-neutral. See this page from teh Library of Congress To be clear, a police officer's judgement does not make a group's actions constitutional or criminal, that decision is for a court. But an officer must make an on-the-spot judgment as to whether, and if so how, to react to the group's actions. If the court later finds the officer's actions reasonable in light of the specific events and circumstances, it may treat the officer differently than if it finds the LEO actions unreasonable. But my point above was that everyone involved had to make judgements, and that the law expects everyone to act in a "reasonable" manner, and there may be consequences later for those held not to have done so. Selected Cases Shuttlesworth In Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969) The US Supreme Court dealt with a case involvign a civil rights protest march. Justice Stewart described the events as follows in the majority opinion: On the afternoon of April 12, Good Friday, 1963, 52 people, all Negroes, were led out of a Birmingham church by three Negro ministers, one of whom was the petitioner, Fred L. Shuttlesworth. They walked in orderly fashion, two abreast for the most part, for four blocks. The purpose of their march was to protest the alleged denial of civil rights to Negroes in the city of Birmingham. The marchers stayed on the sidewalks except at street intersections, and they did not interfere with other pedestrians. No automobiles were obstructed, nor were traffic signals disobeyed. The petitioner was with the group for at least part of this time, walking alongside the others, and once moving from the front to the rear. As the marchers moved along, a crowd of spectators fell in behind them at a distance. The spectators at some points spilled out into the street, but the street was not blocked and vehicles were not obstructed. At the end of four blocks, the marchers were stopped by the Birmingham police, and were arrested for violating § 1159 of the General Code of Birmingham. The opinion went on to say: There can be no doubt that the Birmingham ordinance, as it was written, conferred upon the City Commission virtually unbridled and absolute power to prohibit any "parade," "procession," [Footnote 1] or "demonstration" on the city's streets or public ways. ... This ordinance as it was written, therefore, fell squarely within the ambit of the many decisions of this Court over the last 30 years, holding that a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional. ... It is argued, however, that what was involved here was not "pure speech," but the use of public streets and sidewalks, over which a municipality must rightfully exercise a great deal of control in the interest of traffic regulation and public safety. That, of course, is true. We have emphasized before this that "the First and Fourteenth Amendments [do not] afford the same kind of freedom to those who would communicate ideas by conduct such as patrolling, marching, and picketing on streets and highways, as these amendments afford to those who communicate ideas by pure speech." Cox v. Louisiana, 379 U. S. 536 ... But our decisions have also made clear that picketing and parading may nonetheless constitute methods of expression, entitled to First Amendment protection. Cox v. Louisiana, supra; Edwards v. South Carolina, 372 U. S. 229; Thornhill v. Alabama, 310 U. S. 88. The Court overturned the conviction of Shuttlesworth. It did not deal with the peacefulness of the march, except in the above quoted description of events, no allegation of violence was made, only of lack of a permit (which had been applied for and refused, with an indication that no permit would ever be granted to that group.) Ward In Ward v. Rock Against Racism, 491 U.S. 781 (1989) The Copurt held that: even in a public forum, the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information. (Clark v. Community for Creative NonViolence, 468 U. S. 288) Lest any confusion on the point remain, we reaffirm today that a regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government's legitimate, content-neutral interests, but that it need not be the least restrictive or least intrusive means of doing so. Ward was a Speech (music) case, not an assembly case, but the standard from Ward has also been applied in assembly cases. Jones Jones v. Parmley, 465 F.3d 46, 56–57 (2d Cir. 2006) was a right-of-assembly case. In it, people were accused of violating the very law (NYS 240.10) mentioned in the question, as well as other NY State laws, including disorderly conduct. The events described produced a whole series of court decisions. The linked opinion is from the US 2nd Circuit Court of Appeals, not the Supreme Court, but it reviews and quotes many relevant SC rulings. The linked opinion is actually on a claim by various law-enforcement officers (LEOs) for qualified immunity in a suit by people arrested. When it was brought, the various charges against those arrested had already been dismissed or found to be without merit. The Court of Appeals opinion says, in relevant part: The Supreme Court has declared that the First Amendment protects political demonstrations and protests — activities at the heart of what the Bill of Rights was designed to safeguard. See Boos v. Barry, 485 U.S. 312 ... Indeed, the Court has repeatedly held that police may not interfere with orderly, nonviolent protests merely because they disagree with the content of the speech or because they simply fear possible disorder. See Cox v. Louisiana, 379 U.S. 536 ... First Amendment protections, while broad, are not absolute. Regan v. Boogertman, 984 F.2d 577, 579 (2d Cir. 1993) It is axiomatic, for instance, that government officials may stop or disperse public demonstrations or protests where "clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears." Cantwell v. Connecticut, 310 U.S. 296, (1940). Indeed, where a public gathering threatened to escalate into racial violence and members of a hostile crowd began voicing physical threats, the Supreme Court expressly sanctioned police action that ended the demonstration and arrested the speaker, who defied police orders to cease and desist. Feiner v. New York, 340 U.S. 315 ... the Supreme Court has long applied the "clear and present danger" test to protest cases to determine when police interference is constitutional. Moreover, although defendants make much of the fact that some demonstrators had allegedly violated the law, transforming the peaceful demonstration into a potentially disruptive one, the Supreme Court has expressly held that " [t]he right to associate does not lose all constitutional protection merely because some members of the group may have participated in conduct or advocated doctrine that itself is not protected." NAACP v. Claiborne Hardware Co., 458 U.S. 886 ... The Supreme Court has already ... made clear that the police may not interfere with demonstrations unless there is a "clear and present danger" of riot, imminent violence, interference with traffic or other immediate threat to public safety. Cantwell, 310 U.S. at 308-309 (finding no imminent violence where anti-Catholic diatribe angered listener and provoked suggestion of violence). Neither energetic, even raucous, protesters who annoy or anger audiences, nor demonstrations that slow traffic or inconvenience pedestrians, justify police stopping or interrupting a public protest. Cox I, 379 U.S. at 546-47, 549 n. 12 (group of protesters who provoked a visceral, angered response and slowed traffic did not jeopardize their speech rights); Edwards, 372 U.S. at 232, 237 ("clear and present danger" means more than annoyance, inviting dispute or slowing traffic). ... Plaintiffs also allege that they made no threats of physical harm to police or members of the public, did not incite violence or disorder and displayed no dangerous weapons. ... We are mindful that the First Amendment does not insulate individuals from criminal sanction merely because they are simultaneously engaged in expressive activity. Section 240.10 of the [NY] Penal Law states that four or more persons assembled for purposes of engaging in violent and tumultuous conduct likely to cause public alarm constitutes an unlawful assemblage. N.Y. Penal Law § 240.10. Conviction under this law requires "an incitement which is both directed towards and likely to produce imminent violent and tumultuous conduct." Jones, 2005 WL 928667 ... New York courts have interpreted [N.Y. Penal Law § 240.20(5) (disorderly conduct)] to permit punishment only where the conduct at issue does more than merely inconvenience pedestrian or vehicular traffic. People v. Pearl, 66 Misc.2d 502, 321 N.Y.S.2d 986, 987 (1st Dep't 1971) ("Something more than the temporary inconvenience caused to pedestrians by the demonstrators' blocking of the west crosswalk, requiring them to enter the roadway to get to the other side, was required to sustain a conviction for obstructing pedestrian traffic."); [P]laintiffs had an undeniable right to continue their peaceable protest activities, even when some in the demonstration might have transgressed the law. Claiborne Hardware, 458 U.S. at 908. Plaintiffs still enjoyed First Amendment protection, and absent imminent harm, the troopers could not simply disperse them without giving fair warning. *City of Chicago v. Morales-, 527 U.S. 41, 58 ("[T]he purpose of the fair notice requirement [in disorderly conduct statutes] is to enable the ordinary citizen to conform his or her conduct to the law."); Feiner, 340 U.S. at 321, 71 S. Ct. 303 (finding no First Amendment violation where imminence of disorder was "coupled with petitioner's deliberate defiance of the police" and their orders to disperse) Specific actions Actions that have been held to be permitted as part of a protest or assembly, not justifying police intervention, include: walking in orderly fashion, remaining on the sidewalks except at street intersections, not interfering with other pedestrians or traffic; picketing and parading, even without; a permit when a permit has been improperly denied; orderly, nonviolent protests; A diatribe that angered listeners and provoked suggestion of violence; Energetic, even raucous, protesters who annoy or anger audiences' Demonstrations that slow traffic or inconvenience pedestrians; Peaceable protest activities, even when some in the demonstration might have transgressed the law; Actions that have been held not to be protected thus justifying police intervention, include: Violating a regulation of the time, place, or manner of speech that is narrowly tailored to serve the government's legitimate, content-neutral interests; Demonstrations or protests where "clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears." Where a public gathering threatened to escalate into racial violence and members of a hostile crowd began voicing physical threats; Defying appropriate police orders to cease and desist; Makin threats of physical harm to police or members of the public; Inciting violence or disorder with a direct appeal to imminent lawless action; Imminent disorder when coupled with petitioner's deliberate defiance of the police and their orders to disperse; Summary While there is no single bright line rule on what constitutes "peaceable assembly", the test for the "clear and present danger" of violence or lawless action seems to come closest. In mot cases police must unless there is an immediate prospect of harm, order an assembly to disperse and give them a reasonable chance to do so before making arrests, particularly forceful arrests. Failure to do so may subject LEOs to personal civil liability. | There is a legal concept of de minimis: the idea that some offenses, civil or criminal, are too small to be worth prosecuting. For example, a photograph of a city scene that incidentally captured part of a copyrighted billboard in one corner of the image infringes the copyright on that billboard. But if the copyright holder were to sue, it's virtually certain the suit would be thrown out due to the minimal nature of the infringement. Technically speaking, yes, what you describe is a crime. But any prosecutor who tried to bring charges to that effect is likely to be chewed out by the judge for wasting everyone's time. (Incidentally, assuming the reporter and property owner are US citizens, the crime is failure to cross at a designated crossing point (19 USC 1459, a customs offense) rather than improper entry (8 USC 1325, an immigration offense).) |
Can a child sue their parents? this is a theoretical question I am asking to satisfy my curiosity; hopefully this will never need to be useful for somebody Say a child is facing lots of abuse at home, or have parents who discriminate against them for being LGBTQ or is disabled. Could in theory, if the child had enough money and resources, sue their parents? Is there a country where this is legal? I know CPS exists in places like the United States; this is purely a theoretical question | Minor children can, in theory, sue their parents, in many countries, as long as they can prove a cognizable harm. The simplest case is where a parent commits a crime against the child, such as rape; this would also include embezzlement. "Abuse" is a term used in laws, for example RCW 26.44.020 (Washington state), but that sense of "abuse" doesn't include e.g. "overbearing behavior" or "obnoxious politics". If a child is disabled and the parents taunt the child for that disability, it is possible that the child could sue to terminate parental rights. The case is even clearer if the parent fails in their parental obligations to the child. Lgbtqia child rights are less well-defined. The background assumption is that the parent has the exclusive right to determine the child's upbringing, which includes things such as political beliefs, religion, and matters touching no family and sex. Norway is one of those countries with relatively few restrictions on "how you live your life", and they are considering a law against "conversion therapy", but there is presently no law prohibiting a parent from denouncing their child's lifestyle. It is possible that Barnevernet (child protective services) could intervene in a particular case, but they would not sue a parent on behalf of the child unless the parents actually violated the law. | Does CCPA impact whether or not this is allowed? Probably not. Public schools are divisions of state government and there are limits to how much the federal government can dictate the operations of state and local governments. Limitations on whether public schools can monetize data collected from students (13+) would arise under state law. The state law could certainly expressly authorize the practice (and to some extent does already with profit generating sports teams and yearbooks). State law could likewise prohibit the practice. For the most part, state law is silent and it doesn't happen that much because it isn't very profitable. Is there different guidance for public (government-managed and nonprofit) vs private schools? The legal analysis is very different. I'm not as familiar with this area of law, however, and will leave that question to someone else. As a practical matter, private schools are in a very good position to obtain express consent to do so from parents and students, so that is usually how the issue is resolved, I suspect. | This is an amusing idea, but ultimately it seems frivolous: How does one establish the physical presence of a corporation in a car? Yes, corporations have some of the legal rights and liabilities of people, but they are not people. And there are plenty of rights a person has that a corporation does not. For example (at present) a corporation can't be a party to a marriage. The closest a corporation comes to any corporal presence is the address listed of their agents. | To what legal extent can parents prevent children from masturbating and are religious reasons legal justifications for such actions? One of the main restrictions on parental authority is a prohibition on engaging in child abuse or neglect. But, in most cases, this either isn't defined at all, or is defined only in the most general terms (in the same way culpability for an accident depends upon "negligence" which is also only vaguely defined). So, somebody would have to decide if that conduct constitutes abuse or neglect of a child (realistically, this fact pattern would involve the issue of abuse, rather than neglect), and while religious reasons can justify some conduct that might otherwise be considered abusive because it caused harm for no justifiable reason, ultimately, the interest of the state in preventing the abuse of children outweighs freedom of religion and could give rise to criminal child abuse charges and/or termination of parental rights. Whether or not a chastity belt would constitute abuse would depend upon the judgment of the relevant CPS official, a prosecuting attorney and a trial judge (possibly subject to appellate judge review), in light of common sense and community standards. There is no hard and fast rule, and the question might be resolved in different ways in different times and in different places. | Is it true that there has never been a single case It is tough to prove a negative. I am not going to completely parse the quote but please notice that the quote states "we couldn't find" and concludes that "it doesn't happen." Given these two pieces of information I do not conclude that there has never been a single case. Rather I conclude that the speaker in your quote could not find a case therefore he concluded that there has never been a single case. It's largely impossible to determine that there has never been a single such case. We can search published opinions but that barely scratches the surface of lawsuits that are filed. It is entirely possible that someone filed a suit which was quickly dismissed. The Act provides a defense, it does not bar lawsuits. Someone might get sick from food and not know where the food came from so they sue the provider. If this happens the provider may raise the Emerson Act as a defense and escape liability to the extent applicable. But again, we will never know because it's impossible to examine every lawsuit filed in this country. | Beware: The details will depend not only on jurisdiction, but also on the details of the parents, the parenting agreement and, of course, on the situation of the child. However, here are some general guidelines (mostly independent of jurisdiction): Ideally, you should resolve the problem by non-legal mechanisms. However, you may have to resort to legal means if this fails. I would advocate a gradual escalation of your reaction: First, do not assume malice. Nicely ask parent A why the plan was not followed. Maybe it was a simple oversight, maybe there was an emergency? Try to find out, and decide whether the change was warranted. If there is no satisfactory answer, clearly remind A that the parenting plan is binding for everyone, and that it is important for both the child and the parents that they can rely on it. Stress that any last-minute changes must be discussed as soon as possible, even in emergencies. This should be done in writing, maybe even by registered mail. If the problem repeats, send a last letter indicating that you will seek legal remedy if the problem persists. This letter may work better when sent by a lawyer. A letter from your lawyer to A's lawyer (assuming you both have one) may also prompt A's lawyer to explain to A that they are hurting the child and themselves by violating the parenting plan. Finally, if all the above fails, go to court. You could ask for a change in the parenting agreement, maybe with less frequent changeovers, or with changeovers that are easier to arrange, or at an earlier time, such that a delay causes less problems. You could also ask for a formal permission to have the child fetched by the police or similar on subsequent violations (though that is a rather desperate option, and may not be available). If you reach this point, following the previous steps should give you a fighting chance to prevail in court, as you have demonstrated that you tried everything to make the agreement work. Courts generally take a dim view of people who violate an official agreement. In Georgia specifically, like in most US states, violation of a court-ordered parenting agreement by one parent is a serious matter. The other parent can ask the court to hold the parent in contempt of court. The court can then order a number of consequences for these violations, such as awarding the other parent extra visits or monetary compensation, up to and including sending the parent to jail (this only happens in extreme cases). The article Violation of Custody and Visitation Orders in Georgia gives a good overview. | A private college or university is allowed to grant preferential treatment to anyone they please, except for oen of the reasons prohibited by relevant anti-discrimination law. Such laws vary by state, but generally prohibit preferences based on race, national origin, or gender. Some also include sexual preference or other categories. But I have never heard of a law preventing discrimination based on wealth, or specific donations. None of the Federal civil rights acts have such a provision. Preferences for so-called "legacy" students -- that is students whose parent or parents (or possibly more remote ancestors) are alumni of the school are common, and I am not aware of any case in which they have been seriously challenged as unlawful discrimination. Preferences for military veterans are also common, and may be mandated for public schools. For public schools justifying discrimination might be harder, and any relevant legislative polices will need to be considered, but even they can be free to make "rational" distinctions at least. Not all discrimination is unlawful discrimination -- far from it. | Admissibility is one thing, enforcement is another. My observations, which are more detailed than casual, is that Family Courts are a different breed, and more than most any other court, "they do what they want." I have associates who had agreed to stipulations, detailing how a child might be handled, only to have a family court decide at some point to implement some completely different plan, and in doing so run against what both parents were interested in doing. Prenuptial agreements appear to be meaningless, as this is not about the assets of the couple, it is about the state's interest in the child. Even then, the courts seem to act in manners which appear to not be in the best interests of the child (and sometimes even say so.) Back to your question, would an agreement be admissible? Yes. Does it mean much? In my opinion, and based upon the preponderance of evidence, no. Do whatever you have to do to stay out of family court. Being married doesn't matter. Working together for 21 years does. In the future, you should state the jurisdiction you are in. It does change the answer, but in this case only subtlety. |
Can direct payments around the court harm a divorce case? During a divorce proceeding the court ordered the father to pay 1xxx a month in child support through the court/state supervision arrangement. The mother is living away from the father with the child. However, the father is refusing to pay via the court and has not paid anything yet. It's been over a month. The father sent the mother some cash via Western Union and texted the mother to go get the money. The amount is about 1/3 of the total monthly amount ordered. The mother is in dire need of the money and is nearly homeless with bills to pay with that money. Enforcing a payment via the court takes a long time. Will it harm the case if the mother retrieves the money? assuming she notifies the court or her attorney? Or should she refuse the money? Refusing the money means that she won't have food/electricity/gas money as the money needs are that dire. | Disclaimer: I don't know the specific regulations of New Jersey, so this mostly describes the general practise in the United States. However, it seems the rules are roughly similar in all states. During a divorce proceeding the court ordered the father to pay 1xxx a month in child support through the court/state supervision arrangement. This is common in the United States - child support payments are usually not sent directly from one parent to the other, instead the paying parent sends money to a government agency (or has it taken from their wages). This agency is usually called State Disbursement Unit - though in New Jersey the agency responsible is the New Jersey Family Support Payment Center (NJFSPC). So the father was probably ordered to pay via NJFSPC. Will it harm the case if the mother retrieves the money? assuming she notifies the court or her attorney? Or should she refuse the money? No, this should not harm the case. As you write, the mother should definitely inform the court and / or NJFSPC about the payment (the lawyer should know how to handle this). If the court order requires the father to pay via NJFSPC, paying directly to the mother is already a violation - so the father is likely not acting legally. While the accepted payment will likely count against the child support owed, it will not reduce the claim for child support in any other way - in particular it does not invalidate or reduce the court order to pay via NJFSPC. | If it's not in the lease agreement, then you did not agree to it. Even in the absence of the law prohibiting the late fee, the landlord would not be able to impose it because it is not in the lease. It is of course up to you whether you want to test it. It may be more trouble than it is worth. Then again, it's probably not worth the landlord's trouble to begin eviction proceedings over a late fee. Paying late and refusing to pay the fee would probably sour your relationship with the landlord, which is usually something you want to avoid. If you do pay late at some point, you may want to point out to the landlord the relevant provision of Massachusetts law. The matter would probably end there: either the landlord doesn't know about it, or the landlord is hoping that you don't know about it. Pointing it out in a polite manner will inform the landlord of the law and that you are acquainted with the law. Unless the landlord is quite unreasonable, that should take care of it. Whether there is any law prohibiting landlords from announcing an intention to take a prohibited action is indeed a different question. Is there any legal reason for me to bring this up and get the landlord to formally acknowledge that they will not in fact charge illegal late fees? No. You have a contract with the landlord that already says you are going to move in. He cannot modify that contract simply by sending you a letter. | In the US it's very simple: How does the party that makes the lawsuit get the money in this scenario? They don't. Winning a lawsuit against a person is a legal confirmation that they really do owe you the money. It also gives you the ability to do certain things to try to collect: you could seize their assets or garnish their wages. If they don't have any assets or any income then you are out of luck. You can't take what doesn't exist. As the saying goes, "you can't squeeze blood from a turnip". A bit of legal jargon sometimes used here is to say that such a defendant is judgment proof. Even if you win a lawsuit against them, it won't do you any good, because they just don't have any money. If the person cannot pay it off, does it transfer over to their relatives? No. People are not responsible for the debts of their relatives. | Admissibility is one thing, enforcement is another. My observations, which are more detailed than casual, is that Family Courts are a different breed, and more than most any other court, "they do what they want." I have associates who had agreed to stipulations, detailing how a child might be handled, only to have a family court decide at some point to implement some completely different plan, and in doing so run against what both parents were interested in doing. Prenuptial agreements appear to be meaningless, as this is not about the assets of the couple, it is about the state's interest in the child. Even then, the courts seem to act in manners which appear to not be in the best interests of the child (and sometimes even say so.) Back to your question, would an agreement be admissible? Yes. Does it mean much? In my opinion, and based upon the preponderance of evidence, no. Do whatever you have to do to stay out of family court. Being married doesn't matter. Working together for 21 years does. In the future, you should state the jurisdiction you are in. It does change the answer, but in this case only subtlety. | This is a matter of state law, so the answer is not precisely the same in all jurisdictions. Many states have laws that prohibit child support orders from being modified retroactively. In those states, they can only be modified back to the date of the motion seeking to modify them. In the case of an adult child in college, where an agreement ends child support at a given date, simply not living in the home while in college or on vacations during college is not likely to be a valid basis for discontinuing child support or modifying it, because this was a circumstance that was foreseeable when the order was entered. The fact that a child has some support from others or from a part-time job does not necessarily discontinue the obligation. | Between your mother and you the bank does not care where the payments come from. If they do not get them, they can sue you, or your mother or (most likely) both of you and they will chase whichever of you has the most money and ultimately repossess the house to satisfy the debt. What matters between you is the contract or deed that you signed with your mother where you documented that you would each pay half of the mortgage. Unfortunately, agreements between family members are presumed not to be contracts. That is, the courts will not get involved to decide how much each of you owe - you have to sort that out for yourselves. A signed agreement will usually overcome that presumption. Other evidence may overcome the presumption - for example, evidence that you split the payments 50/50 for some period of time. Talk to your mother. And a lawyer. | You can refuse to pay. The doctor can either accept your refusal or pursue the debt in court. If he pursues the debt you will probably lose. The Common Law position Your contract with the doctor was for him to do whatever he did and you to pay for it. Your contract with your insurer is for you to pay the premium and them to reimburse you for whatever they cover. The fundamental question is why you were taking the doctor's (via his secretary) advice on your contract with your insurer? The advice was wrong, however, it is difficult to see that there is a case for negligent misstatement; you would have difficulty showing there was a duty of care and even if you did showing what damage flowed from it since it is quite likely that you would have had the procedure notwithstanding the absence of cover, unless it was purely cosmetic. The Consumer Law position California probably has consumer protection laws regarding misleading and deceptive conduct - I have no idea what they are. If this is so then your doctor's statement was misleading - consequences may flow from this. | Is it possible/feasible for the child to retroactively sue the father for the child-support that was not paid throughout the 90s and 2000s? No. Child support is owed to the custodian parent, not the child. If at all, your mother would have to sue. Chances are, your parents, had a child support agreement in place and as long as your father abided by the terms of this agreement, there is absolutely nothing to sue about. Is it possible/feasible for the child to sue the father to get him to pay for his Australian university fees/debts which have accrued (and continue to accrue) over the 2010s? No. There is no legal requirement for any parent (divorced or not) to pay for college education. Once you are a legal adult you are responsible for your own expenses and actions. That's what "adult" means. |
What is the legality of "known" harmful actions while pregnant? There are lots of things that are generally accepted as harmful to a developing fetus, such as drinking alcohol, lots of caffeine, smoking, etc. Would a pregnant woman who did something known to cause harm to the fetus be open to being charged with assault or something similar? For example, suppose a woman gets pregnant, doesn't stop drinking, and the baby is born with fetal alcohol syndrome or some other pathology. Is that considered a crime? | Yes or no, depending. The question is investigated in "The Status of Pregnant Women and Fetuses in US Criminal Law" (JAMA), which collects 23 opinion in US jurisdiction. In Reinesto v. Superior Court, 182 Ariz. 190 where the court ruled that the state cannot prosecute for child abuse a woman who uses heroin during pregnancy and thereafter gives birth to a heroin-addicted child. However, in Whitner v South Carolina, 492 SE 2d 777 the court did find the mother criminally liable for child abuse, based on prenatal drug use. The South Carolina case is the sole example of that type, in the study (published 2003). Charges range from child endangerment/abuse, illegal drug delivery to a minor, or fetal murder/manslaughter. The general finding is that since a fetus is not legally deemed to be a person (in those jurisdictions, at that time), where was no "child abuse". South Carolina, on the other hand, reasoned, here and in prior cases, that We have no difficulty in concluding that a fetus having reached that period of prenatal maturity where it is capable of independent life apart from its mother is a person. A different study ("Criminal Charges for Child Harm from Substance Use in Pregnancy", JAAPL) which included cases up to 2015, found a slightly different distribution but generally concludes that courts do not consider maternal drug use to be a legal question. That article also cites a web page which at the time is purported to say that 18 states allow civil child abuse proceedings. In Chenault v. Huie (Texas), the court found that Texas does not recognize a cause of action in tort for injuries to a child that result from the mother's negligent or grossly negligent conduct while she was pregnant with the child but according to the more current Guttmacher Institute study, about half of the states have such a civil cause of action. | The relevant (criminal) defence is Sec 11(b)(3) [the Civil defence in Sec 11(a)(iii) is an easier one]: (3) Notwithstanding any other provision of this Act, it shall be a defence to prosecution under this subsection if the defendant committed the offense based on a good faith belief that he was acting to protect himself or herself, a member of his or her family, or any other individual, from bodily harm from any endangered or threatened species. I would say that the defendant could easily demonstrate a "good faith belief that he was acting to ... any other individual, from bodily harm from any endangered or threatened species." Even if there were other ways to rescue the child other than lethal force to the gorilla they all would have necessitated exposing the child to a longer period of danger, exposing another person to danger or may have had less predictable outcomes (e.g. tranquilisers have an onset time) all of which would be unconscionable. | No To declare that a parent is "unfit" in the US requires at least a decision by a government agency (often called "child protective services" or "child welfare" depending on the state) usually confirmed by a judge. Medical testimony may be persuasive, but neither doctors nor hospitals may make such determinations. | X can be convicted of murder in all jurisdiction in the United States (and probably the other common law jurisdictions). The issue here is two-fold. Contracts that involve illegal actions are not enforceable. In fact, the contract killing example you gave is a classic illegal agreement/contract. See the Wikipedia articles on illegal agreements and contract killings. Most criminal prosecutions involving bodily injury or death proceed regardless of the victim's wishes. This is because the prosecution represents the State's interests and can prosecute a case where the victims want it dismissed. Consider and example where the "battered spouse" doesn't want to testify against his/her abuser. The prosecution can still bring changes where the victim is not cooperative. It just makes proving their case more difficult. Check out this article from the DOJ that discusses how victims do not have a right to veto a plea agreement or other prosecutorial decisions. http://www.lclark.edu/live/files/6439-input-into-plea-agreement One could make an argument that the affirmative defense of consent could apply; however, most states have consent statutes like Colorado's that would not apply to murder. See C.R.S. § 18-1-505(2), which states: When conduct is charged is charged to constitute an offense because it causes or threatens bodily injury, consent to that conduct or to the infliction of that injury is a defense only if the bodily injury consented to or threatened by the conduct consented to is not serious, or the conduct and the injury are reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport, or the consent establishes a justification under sections 18-1-701 to 18-1-707. This statutes basically says consent doesn't apply where someone received serious bodily injury (murder would meet this standard), unless they are in a lawful athletic sport, such as boxing. | Questions about whether a certain action is "just" tend to be maters of opinion, politics and philosophy, but it can be addressed from the perspective of legal theory (especially following the model of common law, where legal principles are based on concepts of just and proper action). Whether or not a certain action is actually legal in a certain jurisdiction depends on the laws of that country -- I suspect that the answer is different for the US versus China. The first question would be whether those government officials have the legal authority – I assume they do. Such authority is generally governed by some specific circumstances, for example, "poses an imminent and grave threat to public health". It is basically not a legal question whether quarantining in the face of this viral threat is necessary from a public health perspective, that is a medical question. What the law would say is that if this is a serious threat, then a person's liberty can be curtailed to a limited extent, because a person does not have the right to harm others because they don't want to do some thing that protects the rights of others (be vaccinated, stay in quarantine until it is safe). However, principles of legal justice also say that the government's response should be proportionate, e.g. shoot-on-sight in response to a sneeze is not proportionate. Quarantining has long been recognized as a valid, just and legal response to such extreme medical threats. Historically speaking, quarantining used to be the only effective action that a government can take against e.g. smallpox, plague, Spanish flu, Ebola. | canada criminal-law These acts could be sexual assault. Pregnancy is irrelevant to the analysis. Deviating from the sexual activity consented to A majority of the Supreme Court of Canada, in R. v. Kirkpatrick, 2022 SCC 33, in the context of a sexual assault charge, held that where birth control measures "change the physical act itself, like condom use" they are part of the "sexual activity in question" that is being consented to. Deviation from that activity is stepping outside of the consent. For the majority, birth control measures can very well change the physical act and can be a condition of a complainant's consent. In Kirkpatrick the issue was condom use, but the language the majority used was "birth control measures." Whether birth control measures are in fact alter the physical act to which consent is granted in particular circumstances depends on the facts of the scenario. See para. 100. What matters is whether the method of birth control changes the physical nature of the act (not whether the purpose was to prevent pregnancy) and whether consent was conditioned on that. So methods like diaphragms, condoms (penile and vaginal variants), and other barrier methods are all probably relevant. Consent vitiated by fraud There is an alternate path to sexual assault: if the consent was vitiated by "deceptions about the conditions or qualities of the physical act." See R. v. Hutchinson, 2014 SCC 19. Deceptions that deprive a person from the choice not to become pregnant, or exposing a person to an increased risk of becoming pregnant, or exposing a person to a significant risk of bodily harm such as a risk of contracting sexually transmitted diseases can all vitiate consent. This path to sexual assault is not as straightforward as the path described above from Kirkpatrick, as it requires a showing of dishonesty, which can include non‑disclosure of important facts, and a risk of serious bodily harm (R. v. Cuerrier, [1998] 2 S.C.R. 371). At least one court has said this reasoning does not apply when a person falsely represents that they are taking a birth control pill and then gets pregnant (PP v. DD, 2017 ONCA 180). This was in the context of a civil claim for sexual battery, but the court considered the reasoning from Cuerrier and found it was not analogous because the deceit had "no physically injurious consequences" for the plaintiff. The court recognized the consequences of a person having to support a child, but in the context of a wrong based on physical contact, what matters is physical damage. the appellant's alleged damage is principally emotional harm or, in other words, hurt feelings and lost aspirations and/or career opportunities flowing from the birth of his child. His situation, as a man, is quite different from that of the woman. Clearly, there are profound physical and psychological effects on a mother undergoing a pregnancy that do not apply to the father of the child. The appellant was not exposed to any serious transmissible disease or other significant risk of serious bodily harm flowing from the intercourse. Moreover, it is noteworthy that the appellant was willing to assume some risk, albeit small, that pregnancy would result from the several instances of sexual intercourse, a risk present even where the woman is taking contraceptive pills. | In Texas, sex offenses are defined in Texas Penal Code § 21.01, et seq., and rape and kindred offenses are defined as sexual assault § 22.011 and aggravated sexual assault § 22.021. None of those laws prohibit the conduct described (assuming adults who are not in a teacher-student relationship with full mental capacity), nor do they prohibit the video as long as there is no intent or threat to disclose it. Of course, not recognizing that it is the same person both times in an in person meeting when they have sex is highly implausible. | This isn't about bullying at all, this is about Virginia being a "one-party" state. Virginia Law 19.2-62 outlines that: B.2 It shall not be a criminal offense under this chapter for a person to intercept a wire, electronic or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception. However what is not said in the article is that the daughter didn't know that the recording device was in the backpack. This means that the mother did not get consent from either party being recorded (it isn't clear that a minor could give consent anyway), and is therefore in violation of 19.2-62. The (US) law has been quite clear on "two wrongs don't make a right", the mother was not getting satisfaction through other channels, but that does not mean she is right in violating the law in pursuit of justice. This is still very much in the early stages of this particular case, but I'm willing to bet that the mother will see very little if any punishment in this matter. As for why the DA doesn't prosecute the children (or their parents) for the bullying, this really depends on what kind of bullying is subject here. If the children are verbally bullying, this may not be a crime (yes, it is morally wrong, but may not be a crime). It isn't to say though that the children in this case haven't been reprimanded according to State law, at least the subject of the bullying has been moved to a different class as a result. Unless the bullying reaches a physical level, most State laws require the schools to deal with the bullying directly (through moving children to different classes, suspensions, expelling, etc), so the DA doesn't typically get involved until physical injury occurs. |
Is anyone currently in jail/prison as the result of a private prosecution in the USA? Private prosecutions are extremely rare but not completely disappeared in the US, and persist in a few states. I want to get a sense of just how rare they are. Is there anyone currently in jail/prison as a result of a private prosecution in one of the states which allow them? If not, when was the last time this occurred. | New Jersey, Pennsylvania, Rhode Island and Virginia still allow private prosecutions that can result in incarceration. See also a state by state summary here. A bar on conflicts of interest (e.g. having the same lawyer pursue a private prosecution and a civil case against the same defendant) greatly limit the practice in Virginia (see also here). There is an argument that this limitation has federal constitutional force. But see, Cantrell v. Commonwealth, 229 Va. 387 (1985) (analysed here). Is there anyone currently in jail/prison as a result of a private prosecution in one of the states which allow them? If not, when was the last time this occurred. They are very rare, and often limited to misdemeanors. I suspect that there is currently someone in incarcerated on the basis of one, but it isn't easy to determine as there are no one who maintains statistics regarding this. Convictions in private prosecutions have resulted in appellate decisions as recently as 2020 in Virginia. A private prosecution resulting in a conviction with a one-year suspended sentence and one year of probation was affirmed on appeal in 2001 in Rhode Island. In many Rhode Island cases, this involves prosecutions by police officers (see also here noting that this is also common in "New Hampshire, New Mexico, South Carolina, and Virginia, where police officers can act as prosecutors throughout the entire misdemeanor process—from a defendant’s first appearance through a plea or trial"). A (pay per view) 2011 law review article reviews the practice of victim prosecutions in New Hampshire (where incarceration may not be sought), New Jersey, and Rhode Island. | To be very straightforward, yes, a police department would very likely have records of their past interactions with you in the form of police reports. They cannot just throw them away because it's been scrubbed from your public record. They detail the interactions the police officer had with you. That being said, those records would not show up in a general inquiry into your record, because those records are meant to protect the officer and the department as a reference point they can go back to in case some dispute arose in the future. If a police officer really wanted to find them, they'd have to do a bit of digging for them. The difficulty in finding them would depend on what system the particular police department uses to store those records. Smaller departments may just file them in a cabinet somewhere, whereas larger ones may actually have their own searchable database. But a traffic cop out on the street is only gonna see what you're seeing at the DMV - nothing. There is also a formal NCIC database, but traffic violations would never end up in there. That is a national database that basically stores red flag persons of interest (think stolen vehicles, sex offenders, and gang members). Sometimes multiple departments within a state will share their information with each other, but a department's database is usually kept to that department only. Also keep in mind court records. The court case that had a violation removed under such and such conditions is still gonna be a public record. Those records would generally be available to a judge overseeing your case so if you repeatedly end up in court for the same thing, they're gonna know and they're gonna stop scrubbing it from your record or offerring certain options because you're clearly not learning your lesson. Many laws allow you to have one offense stricken per year and similar stuff like that, but that kind of stuff doesn't just permanently disappear. They have to keep record of it in order to know you've already had your once per year etc. Also a note about parking violations: not all of those are actually issued by police. If it was issued by a private firm then that is not something that would ever show up on your record. It would just be in a database somewhere with whatever private firm issued the fine. Those kind of tickets get sent to collections and hurt your credit score if you don't pay them, rather than affecting your driving record. | Does failure to present a charge to a grand jury leave that charge open for future indictment? Yes. Indeed, even if the charge is presented to a grand jury and it declines to indict, exactly the same charge that one grand jury declined to indict upon can be presented to a future grand jury and produce a valid indictment. I understand that normally when a Grand Jury declines to indict for an alleged crime, prosecutors may not present it again to a future Grand Jury. (I believe this rule is statutory, not constitutional.) While I won't rule out the possibility that such a statute exists, I am aware of no state where that is the case. A charge upon which is grand jury declines to indict is often not presented to a future grand jury as a matter of prosecutorial discretion or prosecutor's office policy, but generally this is not a mandatory rule. One reason that it is not a mandatory rule is that there is no practical way that a defendant could enforce the rule if it was a mandatory rule. Grand jury proceedings are secret (at least until an indictment is produced and then only as pertinent to the defendant indicted on the charges producing an indictment). Generally, even the judges in the court calling a grand jury have no access to its proceedings until it issues an indictment, and then has only slightly more latitude to review its proceedings than a defendant in the case. | They could be prosecuted in any state where there was evidence that part of the crime was committed. Realistically, either State A or State B could prosecute for conspiracy to murder as an additional charge, because the conspiracy clearly spanned more than one state, even if they can't prove where the crime was committed, although physical evidence (e.g. traces of camp sites, footprints, testimony about landmarks, evidence of poop with human DNA from the victim in it), would usually make it possible to show that some part of the crime was committed in the state. There is probably also a federal crime that could be implicated such as "murder involving flight across a state line" (hypothetical, but I'm sure that there is something similar on the books). I'm not going to address the further hypothetical as it is too bizzare and law is ultimately very context specific. Find a more plausible fact pattern, perhaps with a different crime, and ask a separate question if you want to really address the issue. | Traditionally, anyone could bring a bill of indictment to a grand jury. This article from Creighton Law Review provides some historical context. Government prosecutors are the overwhelming norm now, but private prosecution used to be more common. Indeed, New Jersey still has limited authorization for private prosecution (Court rule 3:23-9(d)). The New Jersey rule governing the grand jury is 3:6, and rule 3:6-8(a) on return of indictment says: An indictment may be found only upon the concurrence of 12 or more jurors and shall be returned in open court to the Assignment Judge or, in the Assignment Judge's absence, to any Superior Court judge assigned to the Law Division in the county. With the approval of the Assignment Judge, an indictment may be returned to such judge by only the foreperson or the deputy foreperson rather than with all other members of the grand jury. Such judge may direct that the indictment shall be kept secret until the defendant is in custody or has been released pending trial and in that event it shall be sealed by the clerk, and no person shall disclose its finding except as necessary for the issuance and execution of a warrant or summons. Note that the jurors decide on an indictment and return the indictment to a judge, not the prosecutor. In the rules governing grand juries, the prosecutor is allowed to be present and to speak, but has no official controlling role, other than whatever leadership is granted by the foreman. I don't know whether it is universal that grand juries do what the prosecutor tells them to, such as indicting a ham sandwich, but at least theoretically they have the power to act independently. The rules actually do not say who can ask questions of a witness, which could lead one to conclude that of course it is the prosecutor (and that the prosecutor does everything, except vote on the indictment). | "Public space" is not a relevant criteria when considering trespass or other crimes/torts against property. The relevant criteria is who owns it and what they allow you to do on it. All land in the USA is owned by someone. That someone may be a government; that does not make it a public space - Camp David is owned by the US government; it is certainly not public. The owner of the land can decide (subject to the law) who has access to their land and in what circumstances. If they erect a fence then they are saying "You cannot access my land here" - if you ignore this then you are trespassing. This is true even if there are legitimate ways to access the land i.e. there is a place where there isn't a fence; to avoid trespass you would have to access the land from there. If you think of this in terms of a public building like a courthouse you are free to enter through the unlocked front doors but not by climbing through a window. The trespass is in the act of crossing the fence - that is the act that you have been implicitly denied permission to do. Being on one side or the other is not trespass. For the specific image that you show it is quite likely that those roads are owned by different people - the highway is probably owned by the state while the cul-de-sac is a local government road. | An "inquisitorial" system is one where the Judge or Magistrate actively questions the accused and witnesses to attempt to determine the facts. The Judge may also determine, at least in part, what witnesses to call in what order. An "adversarial" system is one in which each side presents its case, and the judge acts as an umpire deciding on procedure, and possibly makes the final ruling (or directs a jury to do so) but is not actively involved in questioning witnesses or deciding what witnesses to call. I don't see anything which would prevent a common-law jurisdiction from establishing an "inquisitorial" system by statute except longstanding tradition, but as far as i know no such jurisdiction has ever had such a system in place for dealing with criminal matters. The informal procedures in some small claims courts do have judges more actively involved than in other courts. I think this is also true in some family courts as well. I think I have heard of some civil-law jurisdictions which use something like an adversary system, but i am not sure of that. Certainly a civil-law country could pass a law setting up such a system if it chose to. | Could the acceptance of the pardon then have any bearing on the case in the other jurisdiction? Possibly, but not much. There is very, very little case law on this point since: (1) pardons are rare (especially federal ones), (2) people who are pardoned generally do so because everyone in the criminal justice process in the prior case agrees that the person is reformed and they are usually correct, (3) the statute of limitations has often run on a new prosecution, and (4) many cases where these issues arise, are probably not appealed (either because the neither parties attempts to, or because a defendant is acquitted and there is no appeal), but an appeal is necessary to give rise to binding precedents. Can the admission of guilt be used in the new case? The criminal collateral estoppel effects of a pardon flow from the adjudication on the merits which is vacated. Also, comity between sovereigns and public policy mitigate such a rule. The pardon power would not be very interesting if it routinely resulted in a new prosecution that was conducted on a summary basis via a preclusion doctrine such as collateral estoppel. In many cases, the statute of limitations will have run on the original crime or there will be no parallel state law crime, but this is not always the case. Also, I would disagree with the statement that a pardon always implies an admission of guilt to the crime for which a pardon was granted, even though that statement is often used rhetorically. For example, one important use of the pardon power is to commute the sentence of someone who asserts that they are factually innocent but have been convicted of a crime, potentially in a manner that is not subject to further judicial review, and treating that as an admission of guilt doesn't make sense. As the Wikipedia entry on Burdick notes in the pertinent part: Legal scholars have questioned whether that portion of Burdick [ed. about admission of guilt] is meaningful or merely dicta. President Ford made reference to the Burdick decision in his post-pardon written statement furnished to the Judiciary Committee of the United States House of Representatives on October 17, 1974. However, said reference related only to the portion of Burdick that supported the proposition that the Constitution does not limit the pardon power to cases of convicted offenders or even indicted offenders. I would read this as dicta, as this portion of the holding was not necessary for the court to reach its conclusion and the fact pattern in Burdick was a typical fact pattern where guilt was not disputed. It didn't raise the concerns present when a pardon is requested based upon a claim of innocence, and granted following a conviction. Instead, the holding of Burdick was that there was no pardon because the pardon was rejected (in a manner very similar to a common law disclaimer of a gift), so its holding didn't need to reach the effect of a pardon that is accepted to resolve the case. Can it be used as "reasonable cause" for various actions? This is a bit too vague to know what you are getting at. I suppose that a pardon could constitute reasonable cause for some things favorable to a defendant who is pardoned (e.g., potentially in a motion seeking to reopen a termination of parental rights entered on the basis of the conviction). I suppose it could also be used in a manner potentially unfavorable to a defendant (e.g. showing a pattern of past conduct that demonstrates modus operandi in connection with a prosecution for a new crime). I don't think it could be used as grounds to deny an occupational or business license for bad character. Still, without more clear context it is harder to know what you are really looking for in this regard and I'm not confident that my examples address that. Does the defendant lose their right to refuse to testify in the new case? I haven't reviewed the case law, but my intuition is that if it has never been waived before, it wouldn't be waived by the pardon, but that if it was waived in a previous proceeding resulting in a conviction that was then pardoned, that the prior sworn testimony might be admissible evidence in the new action since it is not hearsay and isn't itself evidence of a prior conviction. The context of the prior testimony might have to be concealed from the jury. As noted by @Putvi, the defendant could not claim risk of conviction for the federal crime as a ground for invoking the 5th Amendment if a pardon is accepted (something that is implied in Burdick), but if there was an overlapping state law crime, risk of conviction for the state crime could constitute a grounds upon which to invoke the 5th Amendment. Burdick does stand for the proposition that a pardon not solicited by the defendant, that is rejected, cannot provide a basis for removing the 5th Amendment protection with respect to a risk of conviction for federal crime. I would also be inclined to think that matters disclosed in an application for a pardon might be admissible evidence as a non-hearsay statement of a party-opponent, if the statement was stripped of the pardon application context (which would be unduly prejudicial since it would imply a prior conviction which otherwise wouldn't be admissible). |
Can multiple separate plaintiffs participate in one small claims case against one defendant? I'm friends with a small group of people (4 or so) who have been scammed ($500-$3000 each) by a vendor. If they want to try to recover damages in small claims court, would they be able to be plaintiffs on the same case, or would they have to file cases separately? | It isn't explicitly prohibited so long as the amount claimed is in the aggregate less than $20,000. But, it would probably be better to file separately. First, very simple single party, single transaction cases are what small claims court is designed to do, and going against the flow often creates unforeseen confusion for the judge in the Justice Court who isn't a sophisticated civil litigation expert. The Justices of the Peace who preside over Justice Courts that handle small claims cases in Texas often aren't and don't have to be lawyers or even high school graduates. Second, if you sue as a group, and one of your group is the lead person handling the case (and that person isn't a lawyer), the lead person is at grave risk of being found to be practicing law without a license by taking actions in a lawsuit on behalf of your fellow plaintiffs. | You can't normally ask the court to "recuse" an attorney, because "recusal" is normally restricted to the judge leaving the case. The more common term is moving to disqualify opposing counsel. | 1) Why would an Orthodontia provider want to receive this payment at all in the first place? I was thinking maybe tax reasons. Less cynically, medical providers request that insurance payments be sent directly to them (and you routinely agree to allow them to do so in the fine print of your insurance contract and the paperwork you will out with the provider), every time that they request payment through insurance, because it is extremely uncommon for someone to pay in full and then come up with insurance through which a claim can be submitted. It is set up this way, in part, because medical providers have a lien on insurance payments made to compensate any not previously paid for services that they provided. So, anyway, bureaucratic inertia causes it to happen this way in your quirky case where it really doesn't make sense. Also, insurance companies routinely see claims failed by providers and handle them uncritically, while rarely seeing claims filed by insured for services that have already been rendered and paid for, and so look at those claims more critically, so it was probably in your interest to have the provider make the claim for you on your behalf. More cynically, even if the medical providers doesn't get to keep the money, holding onto it helps their cash flow. It may allow them to borrow less money for operations, or to invest it and earn a return on it. Having money has value even if it is temporary. 2) If they never end up sending me the claim refund, do I have any legal power to fight against this? I have all of the original receipts and an EOP report. Yes. You could write a demand letter, including copies of your evidence, and if they refused to comply within a reasonable time, you could sue, either with a lawyer, or in small claims court. You would have an extremely strong chance of prevailing and in all likelihood they would refund the money before the case went to trial rather than fighting a losing case in court. You have solid evidence that they were paid twice for the same thing. You don't need to bring the insurance company into it (which would make the case much more complicated). You just need to show that your local medical provider got a double recovery and didn't provide a refund. Six to eight weeks is unreasonable when they have already been paid twice. But, given the cost, aggravation and delay associated with suing, you might want to give them some time to provide a refund, although the next monthly billing cycle for them ought to be more than generous accommodation from you. | The most important fact to bear in mind is that there's no way to predict whether a given individual will decide to file a suit against you, though we might say on what basis he might, if he so chooses. There are two basic grounds for a suit, one pertaining to trademarks and the other pertaining to use of names – misappropriation and violating the right of publicity. A word can be a trademark, but the scope of protection is somewhat narrow because the protection is in terms of use within a given business. So calling your computer company "Apple" is out, but calling you roofing service the same is okay (assuming that somebody didn't previously register "Apple Roofing"). The main consideration is the likelihood of confusion. Supposing your business were selling landline telephones and I don't think Apple computer company sells such phones, you might still be in trouble if you called your company "Apple Phone", since they certainly do sell phones. There are thousands of trademarks that include "Puff", including Cocopuffs and various pizza and cheese puffs. Since "Puff" is such a generic word, there is a higher bar to proving infringement (there are thousands of trademarks including "Puff"). "Puff Daddy" is, however, a registered trademark covering perfume, jewelry, clothing and certain online services, so there is a non-negligible chance of confusion. In the case of names (or apparent names), an additional concern is whether this is commercial exploitation without consent of a person's name (which causes harm to the subject). The underpinning of this tort is that such a use falsely implies an endorsement of the product. Again, with a fairly generic word like Puff, there isn't a clear implication that Sean Combs has endorsed a product that is called "Puff Communications", but "Puff Daddy Communications" would almost certainly cross that line. The main issues, then, are the extent to which the name is generic vs. unique, and whether it is likely that a person would interpret the product or service as being the same as another, or would constitute an endorsement. | Direct civil suits are not the only way to obtain remedies for property violations. Other options: Ask. You can send them a simple letter describing the violation and asking them to compensate you appropriately. Complain to authorities. If they engaged in any behavior that constitutes a crime (e.g., criminal fraud) then the state (via district or state attorneys) is responsible for any criminal prosecution. If the state prosecutes and you are considered a victim, the state generally takes that into account if they are able to prevail against the defender. Even if they didn't commit a crime, but they have a sufficiently outrageous pattern of abusing individuals' civil rights, state attorneys may decide to threaten or take legal action. Seek a "litigation investor." If the size of damages likely to be recovered via lawsuit is high enough, then law firms will sometimes take cases "on contingency," which typically means the plaintiff does not front any money, but gives up a significant share of any winnings. There are also independent litigation investment companies that perform the same function based on a similar calculus, but often for even larger cuts of any winnings. | You are describing a liability suit. My sense is that based on the facts you describe you will face two serious challenges to making a successful case. Damages and liability. In order to win a liability case, you must first establish that you have been damaged in some way. According to your facts, your damages are at best, the replacement value of a used controller. I'm guessing that's what, $20 or so? That doesn't cover the cost of an attorney's time to even begin to hear your version of the facts, much less give you advice or pursue a case for you. After you establish damages, you must prove the company is responsible or has some share of liability for causing your damages. Again, I think this is going to be an obstacle for you. Not placing a warning that the game will affect you by causing you to throw your controller and be mean to your mom would be unprecedented if you were to prevail. AFAIK. | Probably not until and unless the process server gets the correct address and actually serves you. Then the documents should explain the matter fully. If the person who was attempted to be served took note of the court involved, and told you what court it was, you could call the Clerk of the Court and inquire. Otherwise you would need to ask every possible court, which would take a great deal of time and effort. You have not been lawfully served (at least not in most US jurisdictions) until you have been served in person, or perhaps by mail, or by publication in a newspaper, or in some other way considered lawful in your jurisdiction, but serving a person at your old address is not likely to be valid service. (Valid methods differ from one jurisdiction to another, and in some situations differ by the kind of case involved.) If the person at your old address gave the server your new address, s/he will probably be along shortly. If a process server is given an address by the client (plaintiff), s/he may well go there first, and only do research later in case the first address is wrong. One need not worry about it until the papers are served, but it might be wise to read the legal ads in any nearby large newspapers for a few weeks, in case of service by publication. The papers should give the name of a court, and perhaps the name of a judge. You can call the clerk of the court and find out if the papers are legit. There may well be a docket no or case no or some other identifying umber, as well. This will help in verification. Docketed cases may be listed on a court web site. A comment asks is service by publication is still possible. It can be. According to the Michigan Court Rules Rule 2.106 (D): (D) Publication of Order; Mailing. If the court orders notice by publication, the defendant shall be notified of the action by (1) publishing a copy of the order once each week for 3 consecutive weeks, or for such further time as the court may require, in a newspaper in the county where the defendant resides, if known, and if not, in the county where the action is pending; and (2) sending a copy of the order to the defendant at his or her last known address by registered mail, return receipt requested, before the date of the last publication. If the plaintiff does not know the present or last known address of the defendant, and cannot ascertain it after diligent inquiry, mailing a copy of the order is not required. In addition, subrule (E) provides that: If the court orders notice by posting, the defendant shall be notified of the action by (1) posting a copy of the order in the courthouse and 2 or more other public places as the court may direct for 3 continuous weeks or for such further time as the court may require; and (2) sending a copy of the order to the defendant at his or her last known address by registered mail, return receipt requested, before the last week of posting. If the plaintiff does not know the present or last known address of the defendant, and cannot ascertain it after diligent inquiry, mailing a copy of the order is not required. The moving party is responsible for arranging for the mailing and proof of mailing. Thus if the plaintiff does not know and cannot determine the defendant's address, or has an incorrect address but thinks that it is correct, a service by publication (or even by posting) may be lawful, if the Judge so orders, without the defendant getting an individual copy of the documents by mail. This requires some unlikely events, but is possible. | In some jurisdictions, California probably being the most well-known in the US, there are Anti-SLAPP (Strategic Lawsuit Against Public Participation) statutes, which allow a defendant to file an anti-SLAPP claim (for sake of clarity I'm going to keep calling that person the "defendant") when the plaintiff's suit appears to have been filed for the purpose of infringing upon the defendant's rights by forcing them to bear the costs of litigation or settle the claim in order to avoid them, and itself has little merit or the plaintiff clearly does not expect it to succeed. In California, if the Anti-SLAPP claim succeeds and the plaintiff's claim is dismissed as a SLAPP, the defendant is normally awarded attorney's fees from the plaintiff. The Anti-SLAPP claim also halts discovery in order to reduce the costs on the defendant, so in effect it allows a defendant to challenge the plaintiff's right to sue them on the particular issue before the defendant has to bear the majority of costs. |
Can the conduct of a victim after the act has occured have any bearing on the guilt of the accused? Suppose someone causes grievous injury or harm to someone but the victim and accused later on reconcile voluntarily. Can the accused still be prosecuted for the act? Specifically in jurisdictions where states can take cognizance of an offence without a complaint, like in Malaysia, Singapore or India/Pakistan/Bangladesh? If yes then are there exceptions for special classes such as women and children? | england-and-wales No. Reconciliation between victim and attacker has no bearing on the guilt of the attacker. It may have a bearing on the decision to prosecute: A victim can be forced to testify, but they may well not make a very convincing witness if they are. Also, in past times (when the police were the prosecutors for most crimes), they often had a "least said, soonest mended" approach to domestic violence. It may also have a bearing on the sentence. Note: England and Wales is a jurisdiction where prosecutions can occur without a complaint (in general). | england-and-wales Scenario 1: If a person is acquitted of an offence, and evidence later shows that someone else committed it instead then there's nothing in law preventing that second person being prosecuted - assuming all the relevant conditions are met. Scenario 2: If a person has been convicted of an offence, but evidence later shows that someone else may have committed it (independently and in isolation rather than as a co-conspiritor), then in all likelihood the former defendant may have grounds for an appeal on the basis that they have suffered a miscarriage of justice. One option is for their case to be reviewed by the Criminal Cases Review Commission who may refer the case back to the court to determine whether the conviction should be quashed in light of new and compelling evidence. Scenario 3: "Infinite" indictments are theoretically possible (in as much as infinity is possible) but only if there is enough evidence against each and every person to justify them being indicted. If prior indictments resulted in convictions, then loop back to Scenario 2. | Yes In general, default judgements can be set aside for good cause. If the defendant can show that they had a legitimate reason for being unable to respond to the cause of action, then the judgement can be set aside and a new hearing scheduled. However, “good cause” encompasses things both unforeseen and unforeseeable and includes having good cause why the court and/or plaintiff/prosecutor could not have been advised of the incapacity before default judgement was entered. In most jurisdictions, they also need to show that they have a prima facie defence such that a different result is possible. The “superior sovereign” is not really germane: good cause can include a sudden illness or injury, police detention (be they superior, inferior, same-level or foreign sovereign), natural disaster etc. | It depends on the jurisdiction, but generally speaking, this will not permit you to evade criminal responsibility. In Ohio, for instance, the complicity statute treats the conduct you're describing as equivalent to soliciting another to commit an offense or to aiding and abetting another in committing an offense: No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following: (1) Solicit or procure another to commit the offense; (2) Aid or abet another in committing the offense; (3) Conspire with another to commit the offense in violation of section 2923.01 of the Revised Code; (4) Cause an innocent or irresponsible person to commit the offense. The penalty for complicity is the same as for the underlying offense, so you don't really get any kind of break for running your offense through an innocent party; you just get a pissed off witness who can testify against you. | First we should be more specific about a person being "accused" – we should disregard lunatic rantings, and limit our attention to a person who has been officially, legally accused of a crime (which is the class of acts to which the concept "guilt" applies). In all jurisdictions, a formal accusation must be supported with some evidence. In light of that, by definition it is possible that the accused is guilty. The fact-finders will then weigh that evidence and conclude that the evidence meets the standard of proof for guilt, or does not. It is then logically incoherent to deny that guilt is a possibility, unless the intent is that all accused persons should be found innocent irrespective of the evidence. The finder of fact must allow both possible outcomes. The reason for the "innocent until proven guilty" viewpoint is that it puts a specific burden of proof on the government: the government has to not just knock down all of the accused's defenses, it has to conjure up a certain level of sufficiently-convincing evidence proving guilt. This is to avoid the situation that characterizes totalitarian regimes where the tyrant can accuse a person of a random crime, offer no evidence, then insist that the accused somehow prove their innocence. | The statute reads (emphasis mine): A person is guilty of adultery when he engages in sexual intercourse with another person at a time when he has a living spouse, or the other person has a living spouse. Suppose Alvin has sex with Betty while Betty is married to Charlie. Does Alvin's conduct satisfy the elements of the crime? Alvin engaged in sexual intercourse with another person (namely Betty) at a time when the other person (Betty again) had a living spouse (namely Charlie). So yes, Alvin has violated this law. Betty has also violated the law (the first clause instead of the second). Betty engaged in sexual intercourse with another person (Alvin) at a time when he (Betty; the pronoun "he" is meant to be gender-neutral in the statute's style of writing) had a living spouse (Charlie). However, this law is effectively unenforced in modern times. According to https://www.dbnylaw.com/adultery-is-still-a-crime-in-new-york-state/: It is extremely rare for anyone to be arrested just for adultery. Indeed, since 1972, only 13 persons have been charged with adultery. Of those 13 persons, only five actually were convicted of the crime. In virtually every one of those cases, there was some other crime that was committed and the prosecuting attorney added adultery as just one of many crimes committed. If Charlie files a complaint regarding the affair, it is almost certain that the police and prosecutors will ignore it, and that nobody will actually be charged with anything. | What you are talking about here is the tort of negligent misstatement, a subset of the tort of negligence. First, there is no presumption in any jurisdiction that I am aware of that anyone is or is not a lawyer (or doctor, or engineer etc.). If people knew that you were, however, then it is reasonable that they would give your statements more weight then if they did not know. It may also be reasonable if they suspected you were. The practical purpose of such a disclaimer is to ensure that they know you aren't. For the specific facts you give, you would certainly be in a better position if you said: "But I'm not a lawyer, so you should seek professional advice"; not so much because you told them you weren't a lawyer but rather because this changes your advice to "seek professional advice". It's impossible to be wrong with that advice! The standard form in Australia is: "this advice is general in nature and not to be taken as personal professional advice". If the statement is limited to "I'm not a lawyer" or if your neighbour knew you were, for instance, a dog catcher with no professional qualifications, then you could still potentially be liable. Your neighbour would need to demonstrate: You had a duty of care; by giving advice you potentially do, however, a for negligent misstatement there must be a 'special relationship' [Hawkins V Clayton (1988) 164 CLR 539, MLC Assurance V Evatt]. You breached that duty; the advice given was "unreasonable". There was a factual cause in a "cause and effect" sense; 'but for' your advice there would have been no loss. There was a legal (proximate) cause; damage to the neighbour as a result of the advice must be foreseeable. Harm; the neighbour must suffer real loss. The main point of the disclaimers is on the 2nd point: what is "unreasonable" for a professional is different than for a "lay person". Oh, and by the way: this advice is general in nature and not to be taken as personal professional advice. | Does "duty to rescue" apply to a child that one has no direct responsibility for? And I am, certainly under English law, guilty of a crime. No, not necessarily, because a failure to act does not automatically create criminal liability in England and Wales. Most offences require a combination of a physical act and the intent to carry it out - often referred to as the coincidence of actus reus and mens rea. If one or both of these elements are missing (or cannot be proved) then there is no offence unless there is a specific Duty of Care imposed by law which obligates a person to prevent, or mitigate the risk of, harm coming to someone or something. There is a simple mnemonic that may assist with identifying whether or not there is such a DUTY Dangerous situation created... In R v Miller [1983] 2 AC 161 Miller fell asleep while smoking a cigarette, then woke up to see his matress smouldering. Instead of calling for help or doing anything about it, he went to sleep in another room so was convicted of arson - not for setting the fire but for failing to do anything about it. This would be analogous with someone tampering with the signs to incorrectly say that the deep end of the pool is the shallow end thus causing the child to be out of his depth and drown. Under statute, contract or by public office... In R v Dytham [1979] QB 722 a police officer was convicted of misconduct in a public office because he stood by and did nothing as a man was beaten to death. For the OP: a lifeguard will have a duty of care, under contract, to act in order to rescue the child in the OP. Take it upon oneself... In R v Stone & Dobinson [1977] 1 QB 354 the defendants took on the responsibility for caring for a vulnerable person who later died due to their neglect. In the OP's scenario, this might equate to someone announcing they will act as an impromptu lifeguard but then do nothing to save the child from drowning. Young persons... Anyone who has a parental relationship with a child has a legal obligation to look after the health and welfare of that child. In the OP's scenario, if the parent was absent, too drunk etc so could not raise the alarm this may be a breach of this duty of care and make them liable for the death of their child. |
Why mustn't a criminal prosecution case be disclosed? Meet Bob. Bob was prosecuted for an alleged criminal offence. His solicitor has sent him his prosecution briefing, which reads: THIS PRINTOUT IS PRODUCED FOR THE USE OF THE COURT, DEFENCE AND PROBATION SERVICE ONLY AND MUST NOT BE DISCLOSED TO ANY OTHER PARTY What is the reason for that? | As explained here, this arises from the Rehabilitation of Offenders Act 1974 and the Data Protection Act 1998. There is a concept of a "spent" conviction, where a person convicted is not reconvicted of a serious offense for years, and then the person is (statutorily) "rehabilitated", and under §4 of the law, they "shall be treated for all purposes in law as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence [s] which were the subject of that conviction". The law also criminalizes certain disclosures of spent convictions, mainly unauthorized disclosures by officials. The reasoning is that "the public interest in rehabilitation outweighs the public interest in continuing publication and knowledge of the offense". The warning is actually not directed at Bob, it is directed at the prosecutor. | I think that the question you are really asking is whether a contract not to disclose certain information (e.g. to authorities) might be void as contrary to public policy, or illegal. Sometimes it is illegal to do so. For example, often concealing personal information in connection to the transfer of funds constitutes money laundering, which is a crime, or securities fraud. The key question is whether there is a legal duty to disclose in a particular context and whether the concealment facilitates some sort of fraud. | If the question is: "Did she call you and talk about two business contracts? " then this is not hearsay. We have a witness, standing in court, saying that exactly these things happened - that she called, and that she talked about those deals. If the question is: "Did the company sign two business deals that day? " then it is hearsay. We know that she said two deals were signed, because we have a witness for that, but that doesn't mean she said the truth. She could have lied about that. We don't have a witness standing in court saying that the deals were signed. We have a witness in court saying that he heard someone say the deals were signed. In a libel case where Jim sues Joe for libel, a witness says "Joe told me that Jim is a lying thief". That's absolutely not hearsay in a libel case about Joe spreading false rumours. The exact same statement by the exact same witness would be hearsay if someone tried to convict Jim for theft. | Not all illegal things are crimes. Lack of evidence. They are asked to testify, and they say "what I said in my book was a lie". There is no general law against lying, except when under oath. Statute of limitations. Saying "10 years ago I did smoke drugs" means that any offence is no longer prosecutable. Lack of details. Which jurisdiction were they in? When did they commit the act, how many acts? You cannot be arrested for being a "bank robber" or a "murderer". You are charged with "robbing Bank X on 123 Fake Street the Thursday 25 April 2018" or "murdering Jim Thio in January 2017". Otherwise the defendant would have a hard time defending himself (how to prove that you have not killed anyone at any time?) All of the above combined with prosecutorial discretion in the form that any possible prosecutor will most likely determine that bringing charges would be just a waste of time and resources. UPDATE February 2018: Just for the sake of completeness, a reference to the situation of Jacques Cassandri, who did boast about a serious crime(a robbery in a Societe Generale vault in 1976) in a book. Unfortunately for him, he made some kind of mistake/miscalculation and the crime had not yet expired, so he has become an example of someone being prosecuted by confessing a crime in a book. | The prosecutor always has an advocate The prosecutor in a criminal matter is the State. Since the State is an artificial entity it has to act through agent(s) who advocate for it. In Commonwealth countries the State is synonymous with the Crown - I suppose HRH Queen Elizabeth II could prosecute every case personally but she’s a very old lady with a lot of other things to do (this is a joke - the person is not the office). | Important story, but BoingBoing also doubts the BBC's wording. It could be an attempted summary of a previous story on BBC Newsnight on 18 July: Lord Porter of Spalding, a former bricklayer, alleged corporations were running tests on the safety of their high-rise building materials but refusing to share the results. Releasing the results could allow residents and local authorities to know if their buildings are at risk of a fire following the Grenfell catastrophe which claimed the lives of at least 80 people. There Lord Porter was talking about results commissioned by private companies including manufacturers, where the labs wouldn't provide information because of 'intellectual property rights' of the client, or presumably commercial confidentiality. Under these situations, it is said the private concerns have no obligation to disclose. If this is what the BBC story was referring to, then at least investigations by government or third parties wanting to reveal characteristics of the products wouldn't have a copyright (or patent etc) problem. | I have not read the news report so cannot comment on the alleged offences and police conduct, but what I can say is that the information to given on arrest may be found at section 28 Police and Criminal Evidence Act 1984 (PACE): (1) Subject to subsection (5) below, where a person is arrested, otherwise than by being informed that he is under arrest, the arrest is not lawful unless the person arrested is informed that he is under arrest as soon as is practicable after his arrest. (2) Where a person is arrested by a constable, subsection (1) above applies regardless of whether the fact of the arrest is obvious. (3) Subject to subsection (5) below, no arrest is lawful unless the person arrested is informed of the ground for the arrest at the time of, or as soon as is practicable after, the arrest. (4) Where a person is arrested by a constable, subsection (3) above applies regardless of whether the ground for the arrest is obvious. (5) Nothing in this section is to be taken to require a person to be informed— (a) that he is under arrest; or (b) of the ground for the arrest,if it was not reasonably practicable for him to be so informed by reason of his having escaped from arrest before the information could be given. Note the provisions at subsection (3) do not require anyone else to be told the grounds (reasons) at the time of arrest - including members of the public, protesters, bloggers or the press. Kerb-side debates can seriously or significantly distract the officer from ensuring e.g. public safety or preventing e.g. an escape from custody. Also, depending on what else is going on e.g. say in a dynamic and volatile crowd control or public order situation, the person under arrest does not need to told immediately if it would be impractical to do so. The operative phrase being as soon as is practicable, which is not defined by statute as each case needs to be considered individually according to its own set of circumstances. The relevant case law is DPP v Hawkins [1988] 1 WLR 1166, but the only detailed commentary I can find online is behind the PNLD paywall1. Succinctly, the magistrates initially dismissed the case against Hawkins for assaulting four police officers who kept him under arrest without giving the grounds as required by s.28(3) PACE. The DPP appealed, and the Court of Appeal sent the case back to the magistrates saying, inter alia, although there is an obligation under s.28(3) to tell a prisoner of the reason for his arrest as soon as possible (sic) after his arrest, a constable was also under an obligation to maintain that arrest until it was practicable to do so. 1Or free to law enforcement officers | Bob will be convicted if he is found guilty beyond reasonable doubt. Now it is a logical fact that he cannot be guilty of both crimes, but it is entirely possible that his first conviction was incorrect and he is guilty of murder. His defense would point out that the first conviction creates reasonable doubt about his guilt in the murder case. The prosecution would have to show how it doesn't, for example by finding a police officer who forged the evidence in the first case. And then the defence would point out that the fact that evidence against Bob was forged once means reasonable doubt for the evidence in the second case. Fact is, the prosecution must show guilt beyond reasonable doubt for the murder, and the fact that Bob was found guilty beyond reasonable doubt for a different crime, and that he cannot have committed both crimes, makes the prosecutions task a lot harder. Now what if the prosecution finds a second criminal who is an exact visual match for Bob? On the positive side, this would explain how there are two videos apparently showing Bob committing two crimes in different places. It would put the prosecution into the difficult position to have to prove which one is the murderer. And they can't say "Bob is in jail already, so it must have been Bill", because now Bob's first conviction looks very unsafe. |
Do cats have a "right to roam" in the UK? I've seen numerous sources, including the RSPCA, making claims along the lines that cats in the UK have a "right to roam", are "free spirits", and therefore that cat owners cannot be held liable for their cat's actions that cause damage. However, there appears to be no actual law that supports this. For instance, the Animals Act 1971 makes no mention of cats at all. As far as I can tell, the law is incredibly vague on this issue. Why, then, is there apparently widespread belief that cats have a right to roam? Is there legal precedent establishing this? If a cat owner were found liable in a county court for their cat having committed damages during their roaming, would there be any legal basis to challenge this decision? | The statement that cats cannot commit trespass is technically true, but is also a misreading of ss.4 and 4A of the Animals Act. Those sections replace a common-law doctrine called "cattle trespass", which was a specific tort (a civil wrong) concerning what happens when my cattle stray onto your land. Both old and new rules apply only to livestock, so not just cows but other kinds of farm animals as well - but not to dogs or cats. Horses are a special case (s.4A). Since cats are not livestock, they cannot be the subject of cattle trespass and are not covered by section 4. Further, since they are animals, they cannot commit the tort of trespass at all. Animals themselves are not liable at law. As the keeper of cows, it would be me who was liable in a case of cattle trespass, not the cow. The point of s.4, and its predecessor in common law, is to make me liable for damage done to your property by my cows, regardless of whether I was negligent in the way I looked after them (it is a "strict liability"). The mere fact that they've strayed onto your land and done damage is enough. Because cats are not cows, this particular rule does not apply. That does not mean that cats can't be the subject of other torts. In particular, cats could be involved in the tort of nuisance, which covers all sorts of potential scenarios - noise, smells, etc. This has typically happened when there are lots and lots of cats. And under the Animals Act, the keeper of any animal may be liable for damage that it does, including physical injury or damage to property. Section 2 of the Act establishes a statutory distinction between whether I am liable for the damage, or strictly liable. In a scenario where I am strictly liable, you do not have to prove that I was negligent in my management of the animal. Broadly, that applies if the animal belongs to a dangerous species, or is unusually dangerous in itself. (There has been very complex litigation on this point which I am not discussing here.) If my cat is not a real vicious bastard of a cat, but just a regular cat, then I can still be liable for damage that he does: it's just not automatic. Following Rachael Mulheron's Principles of Tort Law (CUP, 2nd ed., 2016), for an action in negligence there are several key points - Proving that D, the owner/keeper of an animal, owed C a duty of care, where C was injured by that animal, has been a straightforward task. The court must be satisfied that a reasonable person in the position of D, the keeper of the animal, would foresee a real risk of injury to C arising from D's particular acts or omissions in dealing with the animal. Otherwise, in the absence of that foreseeability, a reasonable D would have done nothing different in response to the risk posed by his animal. To fall below the standard of reasonable care as a keeper of an animal, D must have failed to do that which a reasonable keeper would have done (to supervise/fence/control, etc, the animal), or have done something which a reasonable keeper would not have done. In damage-by-animals cases, C must prove that, as in the usual negligence action, D's failure to supervise/handle/care for the animals caused C's injury on the balance of probabilities. As in other negligence cases, there are various defences; if you hassled my cat and it scratched you, then that's your fault and not mine. From the material quoted above, we can see that for a normal cat in the UK, where the owner is not doing anything unusual by letting it roam freely outdoors (as is typical for UK cats), it is going to be hard to meet the tests. Things may be different if D knows that C is allergic to cats, or that the cat has been eyeing up C's delicious prize goldfish, or has a bone to pick with D's own cat and is likely to attack her, or something. Most of the big cases under the Animals Act have involved animals who are more likely to cause damage, such as dogs, horses and cows; a cat is only legally different because (1) unlike for dogs, horses and cows, there are no special rules applying to cats, and (2) factually, most cats don't do much harm. To that point, even if D is liable in the way described, C may not get very much out of them by way of damages. Defecation in C's garden is not pleasant, but is probably not worth a lot of money either. | It depends. The police and only the police decide what are and are not police matters. However, although it might not be a police matter, you still have lots of options at your disposal. For example, does your jurisdiction (city, town, municipality, etc.) have an animal control division? i.e., City dog catcher. Most do. If so, I would call the animal control division and file a report. They might possibly do a field visit and take the animal into custody if the animal is still roaming loose. If you sustained bodily injuries, you should get checked by a doctor and have those injuries documented in a medical report. If possible, you could drive by the property and take photos of the unchained dog roaming loose. Then, armed with your evidence consisting of: police report medical injury report animal control report and photographs of the scene You could (with the help of a licensed attorney) file a civil suit against the pet owner. You might be able to win an award for damages, pain and suffering and possibly punitive damages as well (check with your attorney). Also, your attorney could advise you if you might have a cause to move for an enforcement action against the dog and/or its owners that might or might not include having the animal removed from the owners custody or in extreme cases of negligence and bad behavior possibly "put to sleep." Your suit might focus on collecting from the homeowner's insurance policy of the pet owner and you could potentially collect a lot of money with the right set of facts and evidence on your side. You might want to look for an attorney who specializes in personal injury. Most PI attorneys work on a contingency. Meaning they don't charge an up front fee and will only get paid if you win your case or settle. In which case their fee is typically about 1/3 of what you get awarded in settlement or judgment. | It is not possible for someone to forfeit their rights because the GDPR is compulsory law. In the EU, laws can be regulatory or compulsory. In case of an agreement, regulatory laws can be set aside, if both parties agree on that. But compulsory laws cannot be set aside. Of course laws can also be partly compulsory. For example provisions which cannot be changed in disadvantage of a consumer. So there is freedom of contract, but it's freedom is reduced by law for the common good or for example to avoid misuse of bargaining power. In particular consumer related laws are often compulsory because it has little power against the other parties. Companies can have their negotiations done by lawyers, so they can make a well informed an well negotiated decision. As an extreme example, you cannot kill someone, even if that person has given you written permission. See also "Peremptory norm" on wikipedia for international law examples. | If there is no reasonable suspicion of a crime having been committed or about to be committed, then there is no reason to seize you, and the Fourth Amendment "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated". Even if a state has a "stop and identify" statute, reasonable suspicion is a minimum requirement for seizing your person, even temporarily. Texas is not a state with an obligation to identify statute. I would not expect the state to be very helpful, given the facts as you report them. There might be others, such as the ACLU, who may be happy to discuss the particulars of your case. The police need to justify a stop in court, and not to the person being seized. I don't know if there is any case law saying that a false police statement to a detainee ("No, I don't have a reasonable suspicion") precludes claiming in court that there was reasonable suspicion, but it should at least make the claim of reasonable suspicion less credible. They do have to have reasonable suspicion, and they do not have to tell you what that suspicion is. OTOH if they are just harassing bicyclists, that would be illegal. | You have the right to notify the owner of the car of their vehicular trespass and the consequences of that. You do not have the right to damage the car in giving said notice. You have the right to offer to clean the gum off whatever part of the car you stuck the notice to. If you succeed in cleaning it,the other party will not have a legal cause of action, in all likelihood, since there is no damage (though with a bit of imagination they might come up with some 'missed business opportunity' loss). The court would probably find your choice of sticker to be negligent (put the notice under the wipers? use painter's tape -get some if you don't have any). The rationale 'we had no other choice' holds no water: there are alternatives. 'Criminal Damages' is a concept in UK law, but it relates to willful damage such as vandalism, not accidents. It would be an issue if you had planned to cause damage, but that seems not to be the case here. | In the US, the laws that govern habitable residences and the related issues - such as land zoning, health regulations, sewer and water services, private and commercial building codes, etc. - are very localized at the city and county levels. So you need to check with the city and county where you want to place such a structure and determine the relevant laws. Commercial buildings are much more heavily regulated than private residences. (And some federal laws and codes could supersede local laws.) Many cities and counties have their zoning and building codes and requirements online, as well as permitting systems to apply for building and utility hookup permits. It's true that some counties in the US have minimal zoning or building codes, so yes, you could move a shed to land you own in that county and build your own road, haul your water, put up solar panels, dig an outhouse, and not deal with any - or very few - regulations. But cities and towns will be much more regulated, since zoning and building codes are used to insure public safety, and services such as water and sewer are supported by taxes and protect public health. In other words, you may not legally be able to live in a shed that does not have city sewer, water and electric service. There may also be building codes for minimum size of bedrooms, egress windows for fire, ventilation, heating systems, so even if a small house is sold as a complete residence in a package, it may not pass local building codes. Breaking zoning, building and health codes can result in the local inspectors visiting and determining if the residence is up to code; they will not typically need a warrant or your permission to enter. They can order you to bring the residence up to code, if possible; or condemn the structure and require you to move out. | If they have no legal grounds then it would be trespass to chattels However, they do have legal grounds. Following the procedure laid out in the relevant Act makes the car refuse under the Act notwithstanding your opinion. Move it or lose it. Or seek an injunction preventing the council removing the vehicle- this will likely fail. | too long, didn't read: You would be liable for a claim for breach of contract. The self-isolation guidance is voluntary in this scenario and in any event the relevant legislation allows you to leave to "fulfil a legal obligation" such as completing a contract. Therefore, the court would probably give judgment for the claimant on the facts you've given us. Your requirement to self-isolate The Government guidance for self-isolating on suspicion of, or a positive test for, coronavirus is entirely voluntary. You are only subject to legal obligations to self-isolate, and the associated risk of a £1,000 fine, if you enter England from a non-exempt country under Clause 4 of the Health Protection (Coronavirus, International Travel) (England) Regulations 2020. Therefore, in the given situation, you would not be legally obliged to remain within the property for the entirely of the quarantine period. You would be able to seek alternative accommodation. Indeed, even if you were subject to Clause 4, subclause 9(c) explicitly states: (9) During the period of their self-isolation, P may not leave, or be outside of, the place where P is self-isolating except— (c) to fulfil a legal obligation, including attending court or satisfying bail conditions, or to participate in legal proceedings, Fulfilling the terms of the contract of sale would count as needing to "fulfil a legal obligation" so you would not be fined under the legislation and it would not be a defence to any lawsuit. The court's view Given that the self-isolation guidance is voluntary and, in any event, the relevant legislation has the "legal obligation" escape hatch, the court would likely treat this as a standard breach of contract and find that you had no exceptional circumstances that caused you to breach the contract by failing to vacate the property on the day of completion. Conclusion You would be open to a claim for breach of contract. Your defence would be unlikely to succeed on the merits and the court would likely side with the claimant. |
Child with a different last name from the biological father The Mother M and the father F conceive a child C. F leaves M and leaves the country before the birth of C. Subsequently, M marries a different person, H. A paternity test shows that F is the biological father. Under US law, under which conditions would the last name of H be listed on the birth certificate? Does F have any say in this? | Under US law, there is no requirement for a child to have the same last name as the legal father, the biological father, or the mother. Initially the last name is specified on the birth certificate, often taken from the name of the listed father, but that is not required. But the name can be changed at any time, by a custodial parent or guardian while the child is minor, and later by the child directly. | The first step is for the parents of the child to seek a court order for child support. This would be based on your friend being the actual father, and the non-mother not having adopted the child (extinguishing the obligations of the father). Many states, but not Michigan, have adopted the Uniform Parentage Act which covers assisted reproduction, but even in those states, this does not constitute assisted reproduction. The "agreement" is legally invalid (surrogate parentage contracts are unenforceable), and that, folks, is why you should hire an attorney rather than devising a legal theory on your own. This article summarizes the various paternity laws of Michigan. Under the Paternity Act, this may be a child born out of wedlock, if the child is a child begotten and born to a woman who was not married from the conception to the date of birth of the child, or a child that the court has determined to be a child born or conceived during a marriage but not the issue of that marriage where the meaning of the last expression would have to be determined by the court. Probably the court would say "this child is not the 'issue' of the marriage", given legislative intent. Under the Acknowledgment of Parentage Act, unmarried parent can by signing a statement "define" the parentage of a child, but the statute is specifically limited to a man acknowledging paternity, and cannot apply to a lesbian couple. The clearest statement of the law of parentage for lesbian couples in Michigan is Lefever v. Matthews where (just one year ago) the court held that both of two women were parents – but in that case, the eggs came from one of the women and they were implanted into the other woman. An important distinguishing feature is that in this case, the woman at a statutory disadvantage sought parental rights, whereas your question is about a legal parent seeking to avoid a legal obligation to the child. Courts generally do everything possible to protect a child's right to support by the parents. The prospects that an actual father could avoid that obligation are slim. | My understanding is that if the second husband adopts the two children, he will be on the hook for child support. But suppose he doesn't. Is the second husband then liable for child support? No. The second husband is only liable for child support if he has adopted the children. (Also, many, but not all, states do not allow for stepparent adoption at all, unless the parental rights of a birth parent have been terminated. The question implies that there has not been a termination of parental rights in this case.) In theory, if he sought and been granted significant legally confirmed parenting time of the children (parenting time can be awarded to non-parents who have significant relationships with a child in many states), he could be awarded child support from his ex-wife and their father, but he wouldn't have to pay child support, even then. It is conceivable that the fact that his ex-wife is caring for minor children limits her earning capacity. Her earning capacity could be one factor among many used to determine if alimony will be awarded, and if so, how much, for how long. But, this impact on an alimony award does not mean that it is child support and does not differ in its relevance to an alimony award for many other factors that could impact her earning capacity (e.g. her education, her work experience, any disabilities she has, her age, etc.). It is also possible that temporary family support during the pendency of the divorce case could take into account the ex-wife's need for funds to support her children, even though they are not his children, but again, this is an alimony type decision, which in the temporary while a divorce case is pending category, is driven by actual need in the short term of each spouse while they are reworking their relative finances (much as it might be influenced by the cost an ex-wife incurs to maintain a horse or dog), rather than by the needs of the children in their own right. She might, for example, own the house but have only a small income, but adjusting the situation so that both spouses have sustainable finances after the divorce is what these court cases are all about. | Is there default caste of child born out of inter-caste marriage? Short answer The child normally takes the father's caste, but it may be contested if it can be shown that the child is brought up by the mother. Long answer The case law has been evolving in recent years, the latest findings by the Supreme Court of India can be found at Rameshbhai Dabhai Naika vs State Of Gujarat & Ors on 18 January, 2012 [T]he legal position that seems to emerge is that in an inter-caste marriage or a marriage between a tribal and a non-tribal the determination of the caste of the offspring is essentially a question of fact to be decided on the basis of the facts adduced in each case. The determination of caste of a person born of an inter-caste marriage or a marriage between a tribal and a non-tribal cannot be determined in complete disregard of attending facts of the case. In an inter- caste marriage or a marriage between a tribal and a non-tribal there may be a presumption that the child has the caste of the father. This presumption may be stronger in the case where in the inter-caste marriage or a marriage between a tribal and a non-tribal the husband belongs to a forward caste. But by no means the presumption is conclusive or irrebuttable and it is open to the child of such marriage to lead evidence to show that he/she was brought up by the mother who belonged to the scheduled caste/scheduled tribe. | The question didn't mention marital status, but since states formally recognize that relationship it's helpful to start there. tl;dr: The Supreme Court decided state laws that required a woman to notify her spouse were unconstitutional. Thus it's unlikely there'd be grounds for suit. Background The central mechanism of Roe v. Wade (U.S. 1973) was a balancing act between what it decided was a 14th amendment right to privacy and the state's interest in both the health of the woman and the potentiality of life. Because Roe explicitly recognized a state interest, Pennsylvania passed a statute in 1982 that required informed consent and a 24-hour waiting period. It also mandated parental consent for minors (with some exceptions) and spousal notification. This reached the Supreme Court in Planned Parenthood of SE Penn. v. Casey (U.S. 1992). There, the court upheld most of the Pennsylvania law (reinforcing its statement in Roe that a state does have an interest) but struck down the spousal notification portion. To do that, it determined the appropriate test was whether a state was placing an undue burden---a significant obstacle---in the path of a woman seeking an abortion prior to fetal viability. It reasoned that: state regulation impacts a female's liberty more than male's during pregnancy (by way of biology) if a man and woman disagree, only one can prevail not all women are equally impacted by a notification mandate (for reasons of domestic violence, etc.) Combining this with the notion that women do not lose any constitutionally protected liberty upon marriage, it decided spousal notification would be a significant obstacle and thus an undue burden. In other words, unmarried women don't have spouses to notify, so placing a notification requirement on married women creates an additional burden that the court found undue. To get back to the question, the father certainly has a right to file a suit against the female (...and it happens from time to time). However, it likely wouldn't go far. Since unmarried women were the baseline in Casey, it's unlikely there'd be grounds for either married or unmarried fathers to sue their female partners. This comes up frequently under the moniker of "Father's Rights," which has gained less traction in the U.S. than in other countries. That said, Wisconsin recently introduced a bill that would allow fathers to proceed against abortion providers. | From the legal perspective, the most important step is establishing legal paternity. IN Code 16-37-2-2.1 covers the process of establishing paternity via affidavit, which has to be executed in a prescribed and timely manner and with cooperation by both parties. Paternity can also be established by court action (very complex). With legal paternity established, then in terms of parental rights and responsibilities, it is immaterial that you are not married. If you don't live together, then the question of custody and visitation, and child support, would need to be resolved (with a lawyer involved). This article surveys the situation with Indiana Law w.r.t. unwed fathers (see especially section III), though most of it is about the situation where actual paternity is distinct from legal paternity. | Short Answer I was wondering if it exists the possibility of signing a legal agreement before impregnation that states legally that both parents compromise into offering shared physical custody of the child to each other in case of divorce or separation. Do theses types of contract exists? are they legal? I currently live in Switzerland, but the question is meant generally. Agreements of this type are not valid in Switzerland, the U.S., Australia, or any other jurisdiction of which I am aware. There are some fine nuances to this general rule, however, that are explored below. Obviously, of course, there are many countries in the world, and there could be an outlier out there somewhere. Exceptions For Choice of Family Religion Agreements In particular, in some countries, such as Israel and India, the substantive family law rules that apply to a married couple and their children are governed by the religion of that family as determined by law. Thus, Muslims families and Hindu families in India, for example, are governed by different laws related to child custody. In these countries, there is a legislatively approved set of family laws for each faith, but the laws for members of one religion are not the same as the laws for members of another religion, and there are typically rules to determine which sets of family law to apply in cases where the parents of a child belong to different religions. Pre-nuptial agreements in these countries may govern, to some extent, how a married couple's religion is determined for intra-national choice of law purposes, although they cannot specifically resolve custody issues on a pre-dispute basis. U.S. Law In General This would not be enforceable in most U.S. states. Agreements between parents in matters involving children (even post-dispute) are generally not legally binding, because the court has an independent duty to evaluate the best interests of the child under the circumstances as they actually present themselves. Courts can and do appoint third-party guardians ad litem to evaluate the best interests of the children when they have any reason to doubt the judgment of the parents. Put another way, pre-nuptial agreements and post-nuptial agreements, may govern property division and maintenance and restoration of name and inheritance rights and enforcement of economic provision rules, in the event of death or divorce, but may not govern parental responsibilities or child support or the circumstances under which the marriage may be terminated. Post-Dispute Agreements In practice, if parents come to a post-dispute agreement that happens to track the outlines of a non-binding pre-dispute agreement regarding parenting time and parental responsibilities, and the agreed resolution seems reasonable after perfunctory due diligence, a Court would usually ratify that agreement without much second guessing. But, the pre-dispute agreement would be only marginally relevant in the event of a dispute and would not have legal validity. It might be considered by a court as one factor among many in addressing the parenting dispute, as a source of ideas for a resolution and to ascertain the expectations and perspectives of the parents, but would not be given much weight in most cases. Exceptions For Dispute Resolution Method Agreements The exception would be that in some jurisdictions, a mediation or arbitration clause for parenting disputes in a material agreement would be honored, although the same substantive law would apply, in theory. Exceptions For Assisted Contraception And Surrogacy Agreements Note, however, that most jurisdictions in the U.S., do honor and give legal effect to a contract regarding the intended parent in a medically assisted conception or surrogacy contract, in which a pregnancy arises through some means other than intercourse between a man and a woman which of the source of the sperm and egg from that man and that woman that gives rise to a fertilized egg (e.g. cases of sperm donation, artificial insemination, in vitro fertilization, etc.). In those cases, the default rule is generally that the legal parents of the resulting child are the intended parents under the contract. But, this is purely an agreement governing paternity, and not parenting once a child is born. Swiss Law While I do not have first hand knowledge of Swiss law, a digest of Swiss law prepared by Westlaw (a major law book publisher and online legal research provider) does state the rule of Swiss law clearly, however: The areas a pre-nuptial agreement can cover are fairly limited. The following cannot be determined in advance: The preconditions for a divorce, nullification or separation of a marriage are ultimately governed by law. Any agreements that are not compliant with the law are invalid. Agreements on arrangements for children, in particular about parental responsibility, visiting rights or maintenance, made in advance, are not binding. Any amounts saved in pension funds during a marriage are divided in the event of a divorce. Waiving such a division is only possible under very restrictive conditions. Agreements in a marital contract that are not compliant with the law are invalid. This source also identifies the precise statutes and treaties that apply to resolve these questions of Swiss law. Choice of Law and Forum Related Issues There is also an implicit choice of law issue presented. Choice Of Law and Forum Agreements Are Usually Void Generally speaking, under U.S. law, these issues are governed in domestic cases by the state that is the "home state" of a particular child under a statutory test and the parents may not contractually agree to a choice of venue. In international cases by the state and country that are the home state and country of the child under a test established by treaty which may not be contractually agreed to in advance. Since the applicable statutory tests in the U.S. usually direct a court to apply the laws of the state with which the child has the strongest residential connection (except for Native American children whose family law disputes are subject to tribal law), and since laws relating to divorce and parenting are matters of state and not federal law for the most part (except as to choice of law and choice of forum issues, and certain federal welfare program guidelines for child support that states have economic incentives to comply with and all do), the law governing parental rights and responsibilities (and over the circumstances when a couple may get divorced) may change over time as the family (and each particular child) moves over the course of their lives. In international cases where there is not treaty in place between the potentially relevant countries (and in which diplomatic personnel or members of foreign royal families or families of heads of state are not involved), a U.S. court will generally apply the law of its own state in all cases where it has jurisdiction over the child, or of both parents. Jurisdictional disputes and inconsistent decrees are resolved in part through diplomatic channels at the national level in these cases. There Is Little Variation In U.S. Substantive Custody Law In practice, this isn't a very important observation in domestic cases, however, because almost every U.S. state gives judges extremely broad discretion to handle custody disputes on a case by case basis under a "best interests of the child" standard during the last several decades (even though this isn't constitutionally required), subject only to the barest U.S. constitutional limitations prohibiting decisions that amount to a termination of a legal parental relationship without certain forms of due process, and there aren't huge differences in the case law applying that standard in practice between states. The differences between particular judges in a particular county would typically be as great or greater than the difference between different states, when it comes to final outcomes in disputed and litigated cases. Before the best interests of the child standard was adopted more or less universally, many states had a sex specific "tender years doctrine" that presumptively gave custody of younger children to mothers and older children to fathers. But that standard was held to be unconstitutional because it discriminated based upon sex. In each state where the tender years doctrine or similar sex specific custody doctrines were held to be unconstitutional, the "best interests of the child" standard was adopted rather than a gender neutral standard that provided more guidance to judges such as a dictate to maintain the status quo as much as possible such as a "primary caretaker presumption" (which many judges applying the "best interests of the child" standard actually apply in practice). Most European countries also follow the "best interests of the child" rule for child custody. One of the big differences between jurisdictions in their laws typically involve issues like the standing of people other than parents to intervene in parenting litigation, such as grandparents, stepparents and social workers, and the rights of these third-parties vis-a-vis the legally recognized fathers and mothers of a child, and the circumstances under which an adoption and related relinquishment of parental rights is valid. The procedures that apply in family law cases also often differ significantly between jurisdictions. Exception For Post-Dispute Choice of Law and Forum Agreements However, once there has been a litigated dispute in the first instance, that jurisdiction will generally retain authority over the parenting of the child set forth in a decree. But if there is an agreement of the parents which has been ratified by a court regarding choice of law and venue that will be honored in a post-dispute settlement agreement. Also, there are typically statutory circumstances that cause the original jurisdiction to address a parenting dispute to lose authority over the child. For example, suppose that a couple divorces in England with a separation agreement approved by a court that states that the divorce court in London shall have continuing jurisdiction over future custody and child support disputes and the London divorce court approves that agreement. A U.S. or Swiss court would usually defer to the London divorce court for these matters at that point, unless some emergency or change of circumstances undermined the relevance of London to future disputes involving the child. | Note that I am not a lawyer. All law code here is from the official Georgia Law at LexisNexis. In the case of Georgia, the law regarding a child’s election changed in 2008. Prior to 2008, a 14 year old child could choose with which parent to live, unless the judge determined that the chosen parent is unfit. As proving that a parent is unfit was not always easy, the Georgia General Assembly in 2008 replaced the unfit parent standard with a Best Interests of the Child Standard. This new standard provides more flexibility to the judge in determining custody. Some basic facts about how the law in relation to the child's selection of parent: A parent that wishes to modify an existing custody arrangement must show that a material change in circumstances has occurred that warrants a new decision by the court. If the child is 14 then the child's desire to select the parent may be considered as the "material change in circumstances". However the court will only consider the child's choice if at least two years have passed since the last custody determination. These aspects of the law can be seen in Georgia statute 19-9-3, article 5, which states: (5) In all custody cases in which the child has reached the age of 14 years, the child shall have the right to select the parent with whom he or she desires to live. The child's selection for purposes of custody shall be presumptive unless the parent so selected is determined not to be in the best interests of the child. The parental selection by a child who has reached the age of 14 may, in and of itself, constitute a material change of condition or circumstance in any action seeking a modification or change in the custody of that child; provided, however, that such selection may only be made once within a period of two years from the date of the previous selection and the best interests of the child standard shall apply. Note that the expression "The child's selection for purposes of custody shall be presumptive unless..." is the same as saying that "the child's selection shall be controlling (the decision) unless...". As to children that are between 11 and 14 the law states as follows (Georgia statute 19-9-3, article 6) (6) In all custody cases in which the child has reached the age of 11 but not 14 years, the judge shall consider the desires and educational needs of the child in determining which parent shall have custody. The judge shall have complete discretion in making this determination, and the child's desires shall not be controlling. The judge shall further have broad discretion as to how the child's desires are to be considered, including through the report of a guardian ad litem. The best interests of the child standard shall be controlling. The parental selection of a child who has reached the age of 11 but not 14 years shall not, in and of itself, constitute a material change of condition or circumstance in any action seeking a modification or change in the custody of that child. The judge may issue an order granting temporary custody to the selected parent for a trial period not to exceed six months regarding the custody of a child who has reached the age of 11 but not 14 years where the judge hearing the case determines such a temporary order is appropriate. (Note that a "guardian ad litem" is the same as a "legal guardian".) If the child is younger than 11, there is no expectation for the judge to consider the child’s preference when awarding custody. Besides the desire of the child, the judge may consider following factors listed under Georgia statute 19-9-3, article 3: (3) In determining the best interests of the child, the judge may consider any relevant factor including, but not limited to: (A) The love, affection, bonding, and emotional ties existing between each parent and the child; (B) The love, affection, bonding, and emotional ties existing between the child and his or her siblings, half siblings, and stepsiblings and the residence of such other children; (C) The capacity and disposition of each parent to give the child love, affection, and guidance and to continue the education and rearing of the child; (D) Each parent's knowledge and familiarity of the child and the child's needs; (E) The capacity and disposition of each parent to provide the child with food, clothing, medical care, day-to-day needs, and other necessary basic care, with consideration made for the potential payment of child support by the other parent; (F) The home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors; (G) The importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity; (H) The stability of the family unit of each of the parents and the presence or absence of each parent's support systems within the community to benefit the child; (I) The mental and physical health of each parent; (J) Each parent's involvement, or lack thereof, in the child's educational, social, and extracurricular activities; (K) Each parent's employment schedule and the related flexibility or limitations, if any, of a parent to care for the child; (L) The home, school, and community record and history of the child, as well as any health or educational special needs of the child; (M) Each parent's past performance and relative abilities for future performance of parenting responsibilities; (N) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child; (O) Any recommendation by a court appointed custody evaluator or guardian ad litem; (P) Any evidence of family violence or sexual, mental, or physical child abuse or criminal history of either parent; and (Q) Any evidence of substance abuse by either parent. |
What if persons involved in the accident with the same Insurance company? I really don't know how to ask this question properly, but this is my situation. Last week, a car rear-ended me while I was waiting to make a left turn, because there was oncoming traffic. It was just my luck that he and I are with the same insurance company, Progressive. I thought since we both are insured by the same car insurance company, the whole process would go smoothly and I will be able to get my car fixed up in one week using the other guy's insurance policy. However, Progressive told me I can't depend or rely on the other guy's insurance for it may or may not be good and that they can't tell me the EXACT reason, even though Progressive told me that this accident is his FAULT. So, I have to use my insurance to fix the damage and pay a $1,000 dollar deductible. I simply don't like how Progressive is handling this accident nor do I want to pay them $1,000. I want Progressive to pick up the bill and pay for the whole damages to my car. I have been with Progressive since 2003 and they have been auto-withdrawing the premium straight out of my bank account since 2003. So, what are my options? | You have been told that the other person's insurance may not be valid. Why it may not doesn't really matter, perhaps the other person didn't pay premiums or lied on an application. So the situation is much the same as if the other person is uninsured or under insured. Your p[olicy must cover things. And your policy has a deductible. So you have to pay the deductable amount. That is what a deductible is, the amount that you must pay before your policy coverage kicks in. The lower it is, the higher your premium is. You don't have any choice about that. Depending on your jurisdiction, you may be able to sue the other person involved in the accident, and get that person to pay. Your insurance company might do this for you, but if they won't you would have to hire a lawyer yourself to do that. Such a lawyer could get all the details of your case, and advise you of your options. | No. I'm going to assume we're talking about the US, where being convicted of a crime requires proof "beyond a reasonable doubt." Thus, our hypothetical friend has NOT committed murder. Nor has he committed manslaughter (as this too requires that somebody die) or attempted murder or manslaughter (as that requires an intent that the person should die). If it could be proven that the person our hypothetical scumbag ran over died as a result of being run over, our hypothetical scumbag would likely have committed negligent homicide or involuntary manslaughter; however, as these imply a lack of intent, they lack "attempted" versions (see People v. Hernandez, http://law.justia.com/cases/colorado/court-of-appeals/1980/76-813.html though state laws differ and some may be weird). In short, he has not committed any flavor of murder or manslaughter. So, what other enterprising charge or legal proceeding might we be able to level against him? I'm sure one exists. I'll edit it in once I find it. Civil suit for wrongful death Normally, our hypothetical scumbag would find himself on the receiving end of a wrongful death lawsuit. This would require that he (1) owed the dead man a duty of care (which he clearly did; all motorists are obliged to exhibit reasonable care in operating their motor vehicles) and that he (2) breached that duty (which he presumably did), but also that (3) this failure caused the death of the guy he ran over (which you have stipulated that we cannot "even guess," which precludes a "preponderance of the evidence" (the standard for civil matters)) and that (4) that person's death has caused actual, quantifiable damages to the plaintiff (which it can't as "nobody knows him"). Reckless driving charge In most states, our hypothetical scumbag's behavior meets the threshold for reckless driving. For example, in VA law: [In reckless driving cases, e]ither the driver is believed to have driven recklessly in a manner that threatened people or property, to have driven 20 miles per hour or more in excess of the speed limit, or to have exceeded 80 miles per hour, no matter the speed limit. http://manassascriminalattorney.com/2015/10/can-reckless-driving-in-virginia-be-a-felony-charge/ In some states, this may be felony reckless driving; in others, it may be a mere misdemeanor. Misc links https://www.virginia-criminallawyer.com/homicide-laws-virginia-code.html http://www.nolo.com/legal-encyclopedia/proving-wrongful-death-civil-case.html A forum discussion that (thank heaven) cited its sources: http://www.top-law-schools.com/forums/viewtopic.php?t=155412 | Yes Under Texas law (and pretty much everywhere else) the driver of the vehicle is responsible for ensuring that it is roadworthy. This does not mean that someone else cannot also be liable - the mechanic who fixed the wheel and their employer would also be liable. The claim for damages from a motor vehicle accident lies in the tort of negligence and the standards that the driver has to attain to avoid liability is that of a reasonable person. A reasonable person is not an average person who (probably) just gets in a car and drives but a prudent person who considers the risks to themselves and others and takes reasonable steps to mitigate them. Like looking at the wheels of an unfamiliar car. If the defect were obvious to a layperson from a visual inspection, they would be liable if they had not conducted such an inspection. Similarly, continuing to drive when a car is making a "Knocking" noise even if you didn't know what it was is not something a reasonable person would do. If you knew what the noise was and kept driving we are now moving from negligence into recklessness and the realms of criminal liability like manslaughter. | Bill and Jane are free to enter into a contract where, among other things, each provides valuable consideration; in this case Bill provides valuable lawn mowing services and Jane provides valuable money. In week No 1 they have negotiated the terms and the contract is complete when Bill mows the lawn and Jane pays the money. If Bill turns up next week without Jane's instruction then there is no contract and Jane does not have to pay anything; I don't think this is what you are asking but I include it for completeness. If it is understood that this arrangement continue week after week then either there is an ongoing contract or, more likely, a series of independent contracts. If there is an ongoing contract, then it can be renegotiated but it cannot be changed unilaterally by Bill. That is, he cannot unilaterally increase the price to $2. If there is a series of contracts then the terms of each of those contracts will be the same based on the course of dealing. Basically, the parties have accepted over a long period of time that the rate for a mow is $1 and Bill would have to get Jane to accept the revised rate before he mows the lawn. For your example, Jane owes Bill $1 but if she wants him back next week she will have to agree to Bill's rate. | So I found information from a law firm in Florida about Hit and Run Cases. You definitely want a lawyer as it is a $500 fine and/or 60 days in jail for your case (property damage, no injury or loss of life). The good news is that if you can argue the case correctly, it's very easy to get a Not Guilty verdict. Under Florida Law, a Hit and Run must meet the following criteria to legally find someone guilty: Disputes as to the identity of the driver; Lack of knowledge that a crash occurred; Lack of knowledge that an impact occurred with persons or property; The failure to stop was not willful, but was dictated by circumstances; The defendant stopped as close as possible to the site of the accident; The other driver refused to receive identifying information The other driver became belligerent, necessitating that the defendant leave the scene to call police; The assistance rendered was ‘reasonable’ within the meaning of the statute. Given that you had no lack of knowledge that a crash occurred (2) AND lack of knowledge that an impact occurred with persons or property (3.) AND you would have stopped but for the circumstances of the event prevented you from recieiving knowledge of that the crash had occured (4) you already fail to meet 3 of the 8 criteria. This should be easy to argue in and of itself, but where you need a lawyer to assist is in criteria 7. While you were never fearing the other driver to such a degree that you needed to call the police, his behavior was interpreted by you as "road rage" and you had a reasonable fear to not wish to engage him. It's not rules as written, but it could be that the rules allow for leaving the scene because of the plaintiff's behavior and could be valid in other forms. I'll admit, this will vary wildly on the judge's own interpretation of that rule, BUT it's worth a try. Keep in mind with all of these, the Prosecution will be required to prove all 8 facts against you, while you only have to disprove one, to some level of doubt. As an armchair jury, I have no facts to support your story, but I have no facts to doubt it either. And when doubt happens, you must assume innocence. It would help if you had any hint of the officers attitude at the time. Was he friendly? Dismissive? Distracted? What was the guy who hit you's attitude towards the situation? Was he constantly yelling at you and the officer? Was he quiet and separated? Either way, get a lawyer because 60 days of jail time and a $500 fine is not something you want to fight by yourself. Make calls (the ticketing officer should have a work number or other contact information on the ticket.). Notify the insurance company of the fact that it was cited as hit and run but not proven... it could make the difference of who's company is to pay (It will be his if there was no Hit and Run). | It would depend on the law of that state, and the insurance policy. Here is a sample policy from the California Earthquake Authority. §8 on Other Insurance says a. If there is other insurance that covers earthquake loss to the dwelling or other property covered under this policy,we will pay our share of the covered loss or damage. Our share is the proportion that the applicable limit of insurance under this policy bears to the combined limits of insurance of all policies that cover the same property. As you can see, they anticipate the possibility of having multiple insurance policies, so it's reasonable to conclude that it's not illegal to have two earthquake insurance policies, at least in this case. | The fault lies with the people who vandalized your house. In general, whoever causes you damage is responsible (liable) for that damage. This is true whether or not you are selling your house, having guests over, letting a friend stay over for a night or a week, or whatever the circumstance is. Insurance is there to cover many such losses: if a friend trashes your house in a drunken rage, your insurance will cover the damage, but they will invoke the doctrine of subrogation whereby they get to go after the friend, and you have to cooperate. In a situation where nobody has a clue who did the damage, the only possible way that the agent has any responsibility is if they were negligent in their duty to take care of the house. For your specific case, you'd need to discuss the forensic facts with your attorney. But generally speaking, the issue would be whether the agent had breached his/her professional duty of care, which is best understood as comparing his actions (or lack) compares to actions of other professionals in the same circumstance. If a house has 3 or 4 sets of visitors simultaneously, it is really not possible for an agent to supervise all of them at once. So the question would be, was this the result of one concentrated vandalism attack, or serial vandalism. The former is more in the realm of "stuff happens", and the latter is indicative of an endemic lack of care. To repeat, the fault lies with the miscreants who vandalized your house. You, or your insurance company, may nevertheless have to bear the financial burden. Your insurance company will certainly have an interest in spreading responsibility to the realty firm, if warranted by the facts. | Both the police and the courts are likely to look at the situation as a whole, rather than adopting any policy specifically in relation to drivers or owners. For example, it's unusual for people to rent cars to their friends for months on end. That might suggest there is something untoward about the arrangement. Is there evidence of the commercial arrangement, or is the owner pretending to have rented the car out for months, when in reality they had stashed the drugs then let a friend borrow the car for a day? It would also be unlikely for a drug dealer to stash a large amount of drugs in a car then lend the car out on a long-term basis, so if the car is out of the owner's hands, that would tend to suggest the drugs belong to the person in possession of the car (and not the owner). But if the amount of drugs were small, typical of personal use, then it becomes more credible to imagine they could be forgotten by the car owner before lending the car to a friend. Police intelligence might also have a bearing. Does one party or the other have known links to the drugs trade? Also, is the lifestyle of one or the other, in particular, inconsistent with known sources of legitimate income? My point with all these questions is to highlight how sensitive the issue is to the fine details of the circumstances, and that it's impossible to give a strictly general answer. |
Can a child release his own work into e.g. the public domain? I (15 years old; living in Germany) write software now for ~four years and wondered whether I can release it into the public domain or under some free software license without having to ask somebody. I know that I have to ask my parents for many legal acts and that my father's employer (he is a professional software developer) has some rights about his software. Have I to ask my parents (as for many legal acts), my school (my "employer" :)) or somebody entirely different? I had searched the web very often but I always only find what the legal status of schools are. | In Germany, there is no concept that corresponds directly to public domain. You automatically hold the Urheberrecht (~ copyright) for all creative works that you make, and it can't be given up or transferred (§29 UrhG). The work only enters the Gemeinfreiheit (~public domain) 70 years after your death. You can however license Verwertungsrechte (economic usage rights). When you make creative works in the course of employment (see §43 UrhG), your employer automatically gets the Verwertungsrechte necessary in the context for the work, which is typically an exclusive right (no one else, not even you, can use the work). Your are not in an employment relationship with your school, so it has no rights to your works and cannot prevent you from publishing them on copyright grounds. When you see advice on the internet to check with your school first, that is U.S.-specific advice. Since you're still a minor (7–17), you only have limited capacity to enter contracts or legal transactions (bedingte Geschäftsfähigkeit). While you are able to make transactions involving your own means (e.g. buying something with your pocket money) or make transactions that are only to your benefit (such as accepting a gift), other transactions are schwebend unwirksam (~ pending ratification), until your parents agree. The relevant law is in §107 and §108 BGB. This is a problem with open source licenses. If you publish software under a license, this license is schwebend unwirksam. Someone might start using the software under the license. But then if your parents refuse ratification, the license would be invalid, and everyone would have to stop using your software and destroy any derivative works they made. This is a bit of a problem, especially since open source licenses are otherwise assumed to be irrevocable. So if you want to offer a license (including open source licenses), please give legal certainty to the recipients of the license and ask your parents for their consent first, possibly even in writing. Per §107 BGB, the license you offer with their consent will be valid. | The GPL doesn’t require you to distribute the software to anyone. The only requirement to distribute something is that if you do distribute the software to someone as a binary, you must also distribute the source code to them at no additional charge. The focus of the GPL is ensuring freedom for people who have copies of the software, not ensuring that the software is available to the world at large. Because your final deliverable is source code, you’ve already complied with the requirement to distribute source alongside object code. You have to comply with the requirements in section 5: a) The work must carry prominent notices stating that you modified it, and giving a relevant date. b) The work must carry prominent notices stating that it is released under this License and any conditions added under section 7. This requirement modifies the requirement in section 4 to “keep intact all notices”. c) You must license the entire work, as a whole, under this License to anyone who comes into possession of a copy. This License will therefore apply, along with any applicable section 7 additional terms, to the whole of the work, and all its parts, regardless of how they are packaged. This License gives no permission to license the work in any other way, but it does not invalidate such permission if you have separately received it. d) If the work has interactive user interfaces, each must display Appropriate Legal Notices; however, if the Program has interactive interfaces that do not display Appropriate Legal Notices, your work need not make them do so. You have to license the software to the company that hired you under the GPL v3 (since parts of it were licensed to you under GPL v3), so you can’t stop them from distributing it to the world. But nothing requires you to distribute it to the world. | I can see two points you might be confused about in your question. 1. Works can be in the public domain without having a CC license The Wikipedia statement and the government statement are not inconsistent with each other; just because something isn't available under a Creative Commons license doesn't necessarily mean that it is restricted by copyright. In fact, CC licenses are moot for material in the public domain: When a work is in the public domain, it is free for use by anyone for any purpose without restriction under copyright law. Public domain is the purest form of open/free, since no one owns or controls the material in any way. ... Creative Commons licenses do not affect the status of a work that is in the public domain under applicable law, because our licenses only apply to works that are protected by copyright. So if a work is in the public domain, you can use it for whatever purpose you wish (though see below), without restriction or attribution. This is less restrictive than the various Creative Commons licenses, which require various levels of attribution, non-modification, etc. depending on the license chosen by the creator. 2. Trademark protections are separate from copyright protections Your quote from the government website implies that these logos might be trademarked, even if they're not under copyright; this is entirely possible. Roughly speaking, trademark protections keep other people from trading on your good name & reputation; copyright protections keep other people from directly profiting from your creative endeavors. If another party creates a product that uses a trademark in a way that would create confusion among consumers, the trademark holder can sue for that. Depending on how you use the logos, you might run afoul of these protections. See this Q&A for futher details under US law. (Australian law may differ a bit but I would expect that the general principles are the same.) | The essential parts of a trade secret are that (a) it is something that you keep secret, and (b) something that gives you an advantage in trade because you know it and others don't. A trade secret remains a trade secret if you give it to someone else under a non-disclosure agreement. If it is available where anyone can download it, either intentionally or by carelessness, then it isn't a trade secret anymore (as soon as it actually gets downloaded). If it gets made public through some illegal activity, well, that's too complicated for me. Anyway, YOU don't have to pretend anything. A claim that something is a trade secret doesn't make it one. And if something is a trade secret, no claim about it is necessary. If you download the software without doing anything illegal then it isn't a trade secret. To reply to the comment: If the sequence of events is this: I download the source code. I read the license. The license says "by using the software ..." then clearly I have the source code before using the software. At that point the trade secret status is lost. We don't need to discuss whether the license would have been enforcible, because the software is already downloaded before the license starts applying. I can tell anyone in the world about it. (I can't give the software to anyone, because that is copyright infringement, a totally different matter). | Basically, you cannot do it. You are required to include the MIT license in any derivative work. However, that holds only for the parts that you import from this other project. You can identify which parts of the final product are copied from the MIT-licensed program (and indicate "these parts are subject to the following MIT license"), and then you can do whatever you want with the remainder that you wrote. The downside of not licensing your material is that nobody can use it. To use it, people would need permission, which is what a license is. If you don't license it, you don't give permission, so people can't use it. You presumably want to subject your own contribution to different licensing conditions, so then you would state those conditions and clearly indicate what parts of the code you wrote. | Article 19 of Swiss copyright law says that "Published works may be used for private use" (emphasis added), though excludes computer programs from that exception. "Private use" is defined to include not only private use, it extends to use by friends and relatives, and in educational settings. But, para 3 say that except for personal use including that by friends and relatives, you cannot copy art, music, record performances, or copy substantially from works commercially available. (Confusing perhaps because the law refers to using versus copying). The law does not explicitly permit copying for personal use, but it does not prohibit it (whereas para 3 does explicitly prohibit other kinds of copying). Art. 20 then says that you do not have to pay for a copy made for personal use (para 1), but if you "use" a work in a private use context though not the personal use context defines in 19(1)(a), you have to pay. So the letters and numbers are there to allow you to distinguish whether it's legal to use, to copy, and whether you have to pay. This final sentence in Art. 19 Copies which are made by accessing works that are lawfully made available are neither subject to the restriction of private use under this Article nor are they included in the claims for remuneration under Article 20. is confusing. Pirate sites are not themselves legal in Switzerland, and a person who downloads from them is not accessing works that are lawfully made. But still, personal use is legal, copying in that context is legal, and no remuneration is owed, and the law does not restrict personal use copying to only legal sources. | Is this legal? Generally yes, unless it unlawfully exceeds the scope of the license. Also, if it is, how can I check if it's permitted by the original store's EULA? Read the whole EULA, focusing on terms related to resale, assignment, and transferability. | 34 CFR Subpart D covers this topic ("Under what conditions is prior consent not required to disclose information?"). This includes The disclosure is to other school officials, including teachers, within the agency or institution whom the agency or institution has determined to have legitimate educational interests so that raises the question of whether there is a legitimate educational interest. Additionally, the question is raised as to the status of an SRO (they are not teachers). Disclosure is allowed to A contractor, consultant, volunteer, or other party to whom an agency or institution has outsourced institutional services or functions may be considered a school official under this paragraph provided... the conditions being that the person Performs an institutional service or function for which the agency or institution would otherwise use employees; Is under the direct control of the agency or institution with respect to the use and maintenance of education records; and Is subject to the requirements of §99.33(a) governing the use and redisclosure of personally identifiable information from education records I would take this model memorandum as the most likely agreement, though your district may have a totally different memo where SROs are purely security guards. An SRO is to advance the program objective which include "Education of children regarding the role of laws, courts, and Police in society", which is the hook into "legitimate educational interest". This nothwitstanding the part that says that they "are police officers and not school teachers, school administrators, nor school counselors. The officers will assist teachers with classroom presentations on relative topics when requested and able" (there is no principle that only teachers, administrators, or counselors can have a legitimate educational interest). This model memo does not say anything that indicates that the conditions "Is under the direct control" and "Is subject to the requirements of §99.33(a)" are true, but those conditions could be satisfied external to the MOU. There are some additional exceptions of the "if required by law" type, such as a state law "adopted before November 19, 1974, if the allowed reporting or disclosure concerns the juvenile justice system and the system's ability to effectively serve the student whose records are released"; or, after that date, is "subject to the requirements of §99.38" which refers you to §99.31(a)(5)(i)(B). If that is confusing, here are the two self-referring sections: §99.38(a) If reporting or disclosure allowed by State statute concerns the juvenile justice system and the system's ability to effectively serve, prior to adjudication, the student whose records are released, an educational agency or institution may disclose education records under §99.31(a)(5)(i)(B). §99.31(a)(5)(i)(B). The disclosure is to State and local officials or authorities to whom this information is specifically...Allowed to be reported or disclosed pursuant to State statute adopted after November 19, 1974, subject to the requirements of §99.38. So state law is one possibility; "legitimate educational interest" is a remote possiblity. Massachussetts law does include governmental third party disclosures: 603 CMR 23.07(4)(c) A school may release information regarding a student upon receipt of a request from the Department of Social Services, a probation officer, a justice of any court, or the Department of Youth Services under the provisions of M.G.L. c. 119, sections 51B, 57, 69 and 69A respectively. That does not directly apply to local police, but it is possible that a police officer is operating as a probation officer or an agent of the Department of Youth Services. Under paragraph (e), A school may disclose information regarding a student to appropriate parties in connection with a health or safety emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals. This includes, but is not limited to, disclosures to the local police department Mass. law allows the possibility of treating a police officer as "authorized school personnel" if they are "providing services to the student under an agreement between the school committee and a service provider, and who are working directly with the student in an administrative, teaching counseling, and/or diagnostic capacity" – which is not completely out of the question but is a bit of a stretch (especially in the context of a blanket statement "we share records", not "we may share yours, if you get special counseling"). Tne law also says "Any such personnel who are not employed directly by the school committee shall have access only to the student record information that is required for them to perform their duties", so sharing of all records would not be allowed. |
Does a destroyed file allow for an expungement? A person goes to the courts to requests a record of their criminal misdemeanor court case from over 15 years ago that ended in a Nolle Prosse. The courts respond that they destroyed "the file". But the docket is partially visible online. If the courts can not produce the record of a case, does that allow for an expungement of the record? What situations allow for a case/arrest to be expunged? | Short answer: No. If a court destroys the criminal file due to age, the defendant's criminal record lives on in law enforcement databases, be it local, state, or federal. In San Diego, the Superior Court records are open to inspection. Court case files are public records and subject to public inspection. California Rules of Court, rule 2.400(a) states that all papers in the court files may be inspected by the public in the office of the clerk. Rule 2.550(a) says that unless confidential or sealed by law, all court records are presumed open. However, again, this does not impact a criminal history report retained by law enforcement. To get the conviction literally removed from the criminal history report, the defendant will typically need a court order directing the law enforcement agency to remove the arrest and/or conviction. For example, in California, if the defendant can prove there was no reason to have arrested the defendant in the first place. Specifically, Penal Code section 851.8 (b) requires “any law enforcement agency” to destroy their records. “[Penal Code] section 851.8 is for the benefit of those defendants who have not committed a crime. It permits those petitioners who can show that the state should never have subjected them to the compulsion of the criminal law -- because no objective factors justified official action -- to purge the official records of any reference to such action. . . ...” (People v. Matthews (1992) 7 Cal.App.4th 1052, 1056.) (Emphasis added) In People v. Scott M. (1985) 167 Cal. App. 3d 688, 700 [“Section 851.8 is for the benefit of those defendants who have not committed a crime.”].) Factual innocence may be determined based on circumstances at the time of arrest or any meritorious defense. Recent case law establishes the pivotal time for viewing the evidence is when the motion is heard. The statutory language “necessarily means that the existence of reasonable cause depends on the current evidence rather than simply the evidence that existed at the time that the arrest and prosecution occurred.” (People v. Laiwala, 143 Cal. App. 4th 1065, 1068 & n. 3 (2003) (emphasis added). Keep in mind in California, "expunge" does not mean to seal or destroy, but officially dismisses the conviction - leaving the public record intact. The best place to start is contacting your local public defender and ask about post conviction relief or record sealing if your arrest did not result in a conviction. Getting free advice never hurts. | The courts do not supersede your constitutional rights, although you may believe that you have a constitutional right that isn't actually there. This article discusses the position that "due process forbids convicting an individual of a crime unless the government proves the elements of the charged offense beyond a reasonable doubt". This standard is actually not stated anywhere in the US Constitution, but it has been assumed as an implicit meaning of "due process". It sounds like you were charged with a crime, and there is most likely an applicable statute in your state that is analogous to RCW 26.50.110 in Washington. So you have the right to a trial and the prosecution would have the obligation to prove all of the elements of the crime beyond a reasonable doubt. It also appears that you did violate the applicable law and you were willing to plead guilty, as urged by your attorney. You are correct that you don't technically have to prove your innocence, but there is a practical problem that if the prosecution provides some weak evidence that you violated the law, then the jury might decide that your failure to refute the evidence means that there is no reasonable doubt. The problem is that there is a tendency for jurors to think that the defendant has to create a doubt. States differ somewhat in how they explain the burden of proof to jurors, and you might fare better in a state where the instruction is that "you must be firmly convinced". Since the attorney seems to have said that "the constitution doesn't apply to this", this is a puzzle. I would not assume (though it is possible) that the attorney was incompetent. It is possible that he was speaking of a non-criminal matter, and it is possible that you were talking at cross purposes. There is no legal situation where "the constitution doesn't apply to this", but perhaps "that constitutional limitation doesn't apply to this specific situation". Regardless of what the attorney said, your attorney doesn't violate your rights, even if he gives you bad advice. The actual court might, and then you would have a cause for an appeal. Similarly, if the district attorney reasonably believes that you are a danger to society and is prosecuting you, that is not a violation of your constitutional rights. An improper conviction would be a violation of those rights, although it might take an appeal to get the court to recognize that fact. | It depends on what you mean by "clean." The police have probably made a record of the incident and included your name. If you're in the United States, the odds are that the public has access to that record under a freedom of information law. But that's a lot of work that few people will bother with. You haven't been arrested or convicted, so the incident probably wouldn't show up if anyone did a background check, if that's what you're worried about. | They are not given independence from statute. This clause just says that conviction is not the end goal of the prosecutor. If in light of the evidence, the prosecutor comes to believe a person is not guilty, they are not to proceed with the prosecution. They must not hide exculpatory or mitigating evidence in order to get a conviction. | See the answer to this question. It is remotely possible that it will show up, but the new S.C. law also says that an employer cannot use that information. On the other hand, that law is not yet effective (it becomes effective Dec. 27 2018), so for the rest of the year, the information could be used, if an employer obtains is. There is a law-enforcement exception that arrests can always be used against you if you apply for a law-enforcement related job. Under the current law (has been in effect for a while), the record is "under seal", so revealing the record in the course of a background check would be a violation of the relevant court order. The law specifies a punishment for illegal disclosure: A person who intentionally violates this subsection is guilty of a misdemeanor, and, upon conviction, must be fined not more than one hundred dollars or imprisoned not more than thirty days, or both. however, accidental disclosure is not a crime. You might think that you could at least sue them for accidental disclosure, but the law also says Unless there is an act of gross negligence or intentional misconduct, nothing in this section gives rise to a claim for damages against the State, a state employee, a political subdivision of the State, an employee of a political subdivision of the State, a public officer, or other persons. If the government person who releases the information intentionally does so, you can sue. Perhaps an accidental release could be found to be grossly negligent: that would depend on the circumstances. | I'm no expert, but I had assumed this clause was present in case of the following situation. Joe is arrested for a robbery of a London bank. Joe says nothing under questioning. At trial, Joe's defense is that at the time of the robbery, he was in Sheffield drinking beer with his brother. On the basis of common sense, a jury could think: "Surely if Joe were really innocent, he would have told the police of his alibi at the time he was questioned, and saved himself a lot of trouble. Since he didn't do that, maybe a more likely explanation is that he wasn't actually in Sheffield, but that sometime between arrest and trial, he came up with the idea of faking an alibi in Sheffield, and convinced people to testify falsely to that effect. Yes, that does seem more plausible. So we are not going to give much credence to Joe's supposed alibi." So it really would be the case that not mentioning the alibi during questioning would harm Joe's defense at trial. The warning, then, is intended to keep Joe from doing this inadvertently. If Joe's alibi is genuine, but out of a misguided desire to exercise his right to remain silent, he doesn't mention it during questioning, he may accidentally increase his chances of being wrongly convicted. Everybody has an interest in avoiding this. | What factors might a court consider in these circumstances? Is it true that anyone can just walk up and file a document in any case, with no requirement to identify themselves? If nobody admits to filing a document, it is likely that the court would grant a motion to strike the document and disregard it (revising a past ruling if the issue was raised within the six months allowed for reconsidering rulings under Federal Rule of Civil Procedure 60(b) or the state equivalent). A court document must, on its face, indicate a filing person and be signed to be accepted by the clerk of the court pursuant to Federal Rule of Civil Procedure 11 or the state equivalent. But, if the document appears on its face to be legitimate, the person filing it will not generally be required to prove their identity. This happens even less often now than it used to (in the past, fake filings were often made by members of "sovereign citizens" movements to harass governmental officials), because in both the state courts were I practice and in federal court, documents must usually be filed with the court by lawyers via e-filing using a password protected e-filing account. Usually, only parties without lawyers and out of state lawyers who are still in the process of setting up their e-filing account file court documents in person. When documents are filed in person, they are also often delivered via courier rather than by the person who actually signed the documents. And, as a matter of practical reality, third-parties almost never file fake documents in court (in part, because there is usually someone present who is in a position to call attention to the fraud to the court). Still, this can happen, although it is very rare. I've only seen a situation like this come up once in twenty years of practice. (My account below oversimplifies some of the technical details of what happened to get to the gist of the points relevant to this question.) In that case, a lawyer was representing an ex-husband in a post-decree alimony modification case that had been appealed filed a bill of costs that she sought to recover on behalf of her client for the appeal, but she filed it in the wrong court (she filed it in the appellate court where she had represented her client, rather than, as required, in the trial court where another attorney had represented the ex-husband). When an order awarding him costs was not entered by any court, the ex-husband filed an (untimely) bill of costs in the trial court under his appellate lawyer's name using the appellate filing as a model, without her consent, by forging her name on the document. The lawyer didn't discover this (because she was retained only in the appeal and had never entered an appearance in the trial court and thus didn't have access to the trial court file, and because the court doesn't automatically send you a copy of your own filings) until I responded on behalf of the ex-wife to the forged bill of costs alleging that it was untimely which I served a copy of upon the ex-husband's lawyer as required by the rules. At that point, the ex-husband's lawyer immediately called me and the court to explain that she did not file this document and that it was forged (otherwise should could have been sanctioned for knowingly filing the bill of costs knowing that it was out of time and was frivolous at that point and could have been deemed to be responsible for further trial court proceedings of the ex-husband in the case, like keeping him appraised of deadlines, court rulings and filings by other lawyers in the case, since it appeared that she'd participated in the trial court case). Ultimately, the court declined to award the costs because they were filed in an untimely manner and because they were not really filed by the lawyer as claimed. So, the the court disregarded the bill of costs and denied this relief to the ex-husband. (If I was the judge, I would have hauled the ex-husband into court and held him in contempt of court sua sponte, but in this very busy court where hearings in divorcees are often scheduled two or more years out from the scheduling date, the judge didn't have the time to devote to issues like that.) | Generally speaking, ex parte communications with a judge (i.e. communications to which all parties to a case are not notified) are prohibited, both by law and as a matter of judicial and attorney ethics, subject to some narrow exceptions (e.g. applications for arrest warrants prior to the arrest warrant being carried out). Generally speaking, communications with the court (which is to say with judges or their subordinates) are made a matter of public record, and if the communication is about a particular case, all attorneys in the case must be given notice of it (if someone is not represented by an attorney, the notice goes to the defendant rather than their non-existent attorney). The attorney may then communicate the communication to their client, and generally speaking should communicate it to the client. I don't see anything in the question that suggests that this proposed communication would fall outside the general rule. But, the question isn't very specific and I wouldn't rule out the possibility that an exception might apply in a case with very unusual facts. Also, usually, a request to reconsider a sentence has to be made by a formal motion filed by the prosecutor or the defendant. Generally speaking, a third-party cannot file that motion unilaterally. A third-party or victim would usually only have input into the decision through the prosecutor's office. Third parties and victims are not generally permitted to file motions to reconsider sentences that have been imposed even in states with "victim's rights" statutes, but can publicly provide input to the court before a sentence is imposed, usually at the behest of either the prosecutor or the defendant. Furthermore, generally a criminal defendant has a constitutional right to not have a sentence made more severe after being sentenced the first time around. Reconsideration of a sentence once it is imposed may only be in the direction of leniency. Once a sentence is imposed, it can't be reconsidered to be made more harsh. |
are all ex post facto laws or retroactive laws unconstitutional? in India and America the respective constitutions have a prohibition against (in India its article 20). would all kinds of retroactive laws be unconstitutional ? for example amnesty laws that provide for early release and removal of mandatory minimum nature of sentance or laws making people serving a minimum sentance eligible for early release. would those laws be against the constitution of India and America ? or would thoe be against the maximim of "the state shall not deny to citizens equality before law" Edit;; would paying an organization to lobby to get someone pardoned or to get the parliament to have amnesty laws count as corruption within the scope of this law ? https://www.indiacode.nic.in/handle/123456789/1558?sam_handle=123456789/1362 | All ex post facto laws are unconstitutional in the United States. But, not all retroactive laws are unconstitutional in the United States. An ex post facto law is basically a law that retroactively makes conduct illegal or punishes it more severely than it was punished at the time if it was already illegal. By way of example, tax legislation is often constitutionally retroactive, and laws that retroactively make the punishments for acts that are crimes at the time more lenient (or retroactively grant amnesty for previously illegal conduct) are legal. I strongly suspect, but do not know for certain, that India's constitutional law makes the same distinction that U.S. constitutional law does in this regard. | The resolution in Connecticut is a statement that has been agreed by the state's legislature, but is not a law. If it were, it would indeed need to be signed by the Governor, by virtue of Article 4, Section 15 of the state Constitution. It exonerates the victims insofar as it expresses the current legislature's disapproval of the witchcraft trials of the past, and apologizes to living relatives. All of the victims are long dead, whether they were executed by the state or not, so even if this were a legally-effective pardon, it would have no other practical consequences. That said, a state legislature could enact pardons for named individuals, or a class of people. It would be unlawful to criminalize a named person (that's a "bill of attainder") or to punish someone for an act that wasn't a crime at the time (an "ex post facto law"). But the opposite, which reduces or eliminates a punishment, is not covered by the federal or state constitutional bans on such laws. That was explained by Samuel Chase in Calder v Bull, 3 U.S. 386, a Supreme Court decision of 1798 dealing with actions of the Connecticut legislature ordering a retrial in a probate case (with my emphasis): Every law that takes away or impairs rights vested agreeably to existing laws is retrospective, and is generally unjust and may be oppressive, and it is a good general rule that a law should have no retrospect; but there are cases in which laws may justly, and for the benefit of the community and also of individuals, relate to a time antecedent to their commencement, as statutes of oblivion or of pardon. They are certainly retrospective, and literally both concerning and after the facts committed. But I do not consider any law ex post facto within the prohibition that mollifies the rigor of the criminal law, but only those that create or aggravate the crime or increase the punishment or change the rules of evidence for the purpose of conviction. Every law that is to have an operation before the making thereof, as to commence at an antecedent time or to save time from the statute of limitations or to excuse acts which were unlawful, and before committed, and the like, is retrospective. But such laws may be proper or necessary, as the case may be. There is a great and apparent difference between making an unlawful act lawful and the making an innocent action criminal and punishing it as a crime. At the time, Connecticut's system for pardons made it so that an offender would always have to petition the legislature to pass a bill to that specific effect. That model predated the U.S. Constitution, and continued to operate after its ratification. The Governor only had the power to grant temporary reprieves, when the legislature was out of session - in fact, he still does (Article 4, Section 13 of the Constitution of Connecticut). Presently, the state has instituted a permanent system of a Board of Pardons and Paroles, but in principle they could enact some other model. The contemporaneous A System of the Laws of the State of Connecticut by Zephaniah Smith (1795) says in Book 5, Chapter 26: The power of granting pardon to criminals sentenced to death, or to any other punishment, is vested by law in the legislature. This carries forward a practice from the British legislatures, which also often passed acts to pardon or indemnify certain offenders. There was therefore quite a long history for Chase to allude to, even though he was writing not long after the revolution, in terms of this being part of the standard panoply of things a state legislature can generally do. | Probably not Now, some US constitutional rights do get interpreted very broadly, and it's possible this might be the case here too. But fundamentally, this situation is not equivalent to the security contractors example you mentioned. The crux is that Facebook already has every right to delete your posts for whatever reason they want. A security contractor does not have any intrinsic right to conduct searches (warrantless or otherwise) on your person, residence or effects. Facebook can choose, at their sole discretion, to delete all your posts, delete none of your posts, or delete some of your posts according to whatever metric they came up with. In this case, the metric is 'did the government flag this as misinformation'. The government isn't censoring you - Facebook is, and Facebook is allowed to do that (they happen in this case to be following the government's advice on what specifically needs censoring, but where they choose to get their advice is also purely their business). A security contractor, by contrast, can't do much of anything to you, except when they have been specifically deputized by the government to do so by some legal process. If this happens, then they are said to be acting 'under color of law', and suddenly First (and Eighth, etc) Amendment restrictions do begin to constrain their actions. Facebook is not getting any kind of state power delegated to them, and thus they aren't considered to be acting 'under color of law'. They aren't doing anything they were not already allowed to do. | Desuetude is the wrong concept. Desuetude relates to laws as a whole falling out of use; it doesn’t relate to individual cases. There is no question that the UK actively enforces their bail laws so they are not falling out of use. There is a statute of limitations that applies to non-major crimes within which the state must initiate prosecution. However, in this case the prosecution for bail violation has been initiated and Mr Assange is “on the run” so this is not relevant. Neither is the fact that the original charges that led to his arrest has been dropped- he is wanted for escaping lawful custody under English law for which the penalty is pretty stiff. I will also venture an opinion that the case against him is as open and shut as it comes. TL;DR When he dies. | What you describe is essentially a Warrant Canary, which is legally murky. From a functional point of view, it is breaking the non-disclosure requirements of the NSL by omission. Proponents of warrant canaries would point to case law such as West Virginia State Board of Education v. Barnette and Wooley v. Maynard to suggest that the Free Speech clause of the First Amendment restricts the government from compelling speech. New York Times Co. v. United States could also be read to prevent the prior restraint unless the existence of the NSL was successfully argued to be "crucial military information". | You have a couple major misconceptions about US law. First, crimes against the person are generally punished at the state level. States are not restricted to any sort of enumerated powers, and can pass any law they want to promote the general welfare unless there's a reason they can't. This is called the "general police power," and it lets them make everything from contract law to laws against murder. The federal government has to justify what gives it the authority to pass a law, and cities and counties have to justify their authority with state law or a state constitution, but a state government never has to preemptively justify why they have the authority to pass a law. States are especially not limited to powers listed in the federal constitution. The US Constitution sets up the federal government. State governments are set up by state constitutions, and derive their authority directly from the consent of the people of the state exercising their right to democratic self-determination. The only powers the US Constitution gives to states are minor technical powers involving state-federal relations (e.g. deciding how their presidential electors are appointed). But as I said, they aren't generally limited to any sort of enumerated powers by their state constitution either. Even the federal government isn't limited to "protecting rights listed in amendments." That's very little of what it does, in fact. Congress has powers listed (for the most part) in Article I and Article IV. It can pass laws banning murder in DC because Article I lets it exercise exclusive jurisdiction (meaning general police power) over DC and over federal enclaves. Article IV lets it exercise general police power over US territories, and pass laws regarding other federal property (I think it has a general police power there too, at least according to current law). The Necessary and Proper clause gives Congress the power to protect its own operations by, for instance, criminalizing the murder of a federal judge. Etc. Where there isn't a clear thing that lets the feds regulate something, they can probably get away with cramming "in or affecting interstate or foreign commerce" in the law, secure in the knowledge that practically everything affects interstate commerce. I'm not sure where you got the idea that laws are passed exclusively to enforce rights protected by the Constitution. They are not. They are not passed primarily for that purpose. Such laws do exist (e.g. deprivation of rights under color of law, which was passed pursuant to the 14th Amendment), but they're protecting you from government infringement of that right. | Everything is allowed unless the law says it isn’t Common law systems like the USA are ‘exceptions based’ - the law permits everything except what it prohibits. So, your question is backwards - rather than looking for laws that allow it, you need to look for laws that prohibit, restrict or regulate it. There are laws that regulate this but none that prohibit it. | The new law wins. That's rather the point of passing a new law-- the legislature wants to change the current law of the land whether that is based on statutes or court rulings. Of course, there are caveats. Prior judicial rulings may have relied on an interpretation of a source of law that supersedes the legislature in question (i.e. based on an interpretation of the state or federal Constitution or based on a federal law that supersedes the state law). In that case the new law would be found unconstitutional or ignored. Or the new law might have an ambiguous interaction with current law that courts would have to resolve. The new law might clearly make X illegal but there may be legitimate questions about whether it intended to make previously legal action Y illegal as well. It is, after all, very difficult to write a law that covers every possible fact pattern one would encounter in the real world. |
What is a "Night Court"? In the fictional TV comedy "Night Court" (both the original and the recent remake), the court is described as an "Arraignment Court", which I understood should serve to read the charges, set bail and potentially record a plea, but defer the rest of the process (discovery, pre-trials, depos, trial, and eventual sentencing) to later appearances. In the TV show, the judge often declares "Guilty/Not Guilty/Dismissed", and even sentences defendants (usually to "Time Served"). Is this an accurate portrayal of a Night Court, or purely a device for fictional purposes? What is a Night Court empowered to do, or not do? | A "night court" is simply a court that operates outside the ordinary business hours for the convenience of people who have work during those hours. They aren't common and are mostly found in medium sized and large cities. A "night court" can do whatever judges in the jurisdiction decide should be offered at that time based upon the needs of people who deal with the court system. Small claims civil cases and protection order cases, for example, are also often handled in a night court format, and a variety of criminal law matters not requiring a jury trial could be handled in that format. Most cities have a judge or magistrate assigned to take arraignments, not always at night (often the position is rotated among judges in the jurisdiction every now and then), which, as the question notes, "should serve to read the charges, set bail and potentially record a plea, but defer the rest of the process (discovery, pre-trials, depos, trial, and eventual sentencing) to later appearances." An arraignment court would often accept guilty pleas, and sentence people when they plead guilty to infractions, petty offenses, and misdemeanors. It would also often dismiss charges when the prosecutor decides that the case has no merit and decides not to pursue it. It would rarely enter not guilty pleas on the merits, but the court in the television show might not be a pure arraignment court. But, as my knowledge of television comedies is less expansive than my knowledge of the law, I can't tell you if this is "an accurate portrayal of a Night Court, or purely a device for fictional purposes." I'm sure that the TV version has wittier dialog, more interesting lawyers and court personnel, and less boringly repetitive cases than real life, but I'd have to defer to someone who has ever watched more than the trailers of the show to comment further. | Yes. In a civil case, there are two parties and the case is about finding out who has which obligations to whom. In a civil case, the plaintiff has to prove that they actually incurred damage through the actions of the defendant. A criminal case is the state vs. the defendant. The "wronged party" is the society as a whole, usually represented by the prosecutor. The victim, if there is one, just plays the role of yet another witness to find out if the defendant needs to be punished and how. There are also examples of crimes which are completely victimless but still punished by some societies. For example, in many places sexual intercourse between two consenting adult siblings is a crime (incest), even though there is no victim. Also, for some crimes it is even a crime to attempt to commit it. So one can be punished in a criminal court even though they didn't actually succeed in causing any damage to anyone. Example: I throw a rock at your car. When I hit, you can sue me in a civil court and force me to pay for the repairs. When I miss, I caused no damage to you, so there is nothing you could sue about. But what if I throw a rock at you and miss? That's attempted assault, maybe even attempted murder. When law enforcement finds out about it, I could be arrested, prosecuted and convicted to a prision sentence, even though you are perfectly fine. | Yes The normal remedy for not receiving a fair trial or due process is the declaration of a mistrial. A mistrial legally never happened so it is up to the prosecution to decide if they want a retrial. Unless the appellant can demonstrate that no reasonable jury would have convicted on the evidence (which seems unlikely verging on impossible), the appeal will not acquit the accused. | Yes, one should not publish evidence until a verdict is reached. This includes any possible appeals. In common law, doing so has long been one of the contempt of court offences called sub judice, or "publishing information that interferes with a fair trial". The main point is that the jury should not be influenced by any information other than what they hear in the courtroom. In New Zealand, the offence was recently codified. | It depends on what the jury said, and if it's criminal or civil. In criminal cases, the judge may almost never set aside a verdict of acquittal. There is a single case in the US in which this happened, and it was a bench trial (no jury). That case featured the defendant bribing his trial judge; the Seventh Circuit held that he was never in jeopardy due to the bribe. As far as I can tell, that's the only one. There have been no cases that I can find of a jury's verdict of acquittal being overturnable. Judges can poll the jury to make sure they're unanimous (at least in federal court), and if they aren't then it's a mistrial, but that's because the jury was never in agreement in the first place. On the other hand, a judge has several ways to enforce an acquittal. In federal court, for instance, the defense can move for a motion of acquittal either before or after the case goes to the jury. If the motion is granted before the verdict, double jeopardy applies to retrial. If it's granted after a conviction, then the judicial acquittal can be reversed on appeal, possibly requiring a new trial. Before the verdict is returned, the judge can declare a mistrial. After the verdict is returned, it's too late for that. In civil cases, things are more complicated: double jeopardy does not exist there. There, there is a notion of a judgment as a matter of law: the judge determines that, based on evidence presented, no reasonable jury could possibly find the other way. This can happen before or after the verdict, and is appealable. | The term "jury nullification" gets thrown around a lot, especially by non-lawyers. But your question doesn't really seem to be about jury nullification. There is a well-established procedure in the federal courts of the United States, and similar structures in all state systems I'm familiar with, that allows the judge to overrule a civil jury if it finds that no reasonable jury could have reached the verdict they did. In the federal system, this is formally known as a "renewed motion for judgment as a matter of law," and is governed by Fed. R. Civ. P. 50. It's universally called, by lawyers, a JNOV, or judgment notwithstanding the verdict. This is common and well-established in civil cases, such as most patent cases. It isn't commonly granted, but jury nullification--or, more frequently, jury screwups or misunderstandings severe enough to justify it--are not very common either. Jury nullification usually refers to criminal verdicts, and almost always to criminal verdicts of "not guilty." These the Court cannot correct by imposing a guilty verdict without the jury, and these are the only cases, in my opinion, properly considered as "jury nullification" cases. | It doesn't really matter exactly what the judge says as long as it's clear whether the judge is sustaining or overruling the objection. With that said, in movies you'll rarely see the person asking the question get to respond to the objection, but you'll notice in the trial that happens in most cases. For example, if one party objects that a question calls for hearsay, the examiner may defend their question by pointing out that the statement is not offered for the truth of the matter asserted, or that it falls into one of the hearsay exceptions. At that point the judge is responding to both parties and someone else or possibly multiple people have spoken since the objection was originally raised, so she might specify that she's "overruling the objection" as opposed to just saying overruled, so it just makes it clearer on the record what she's ruling about. It's worth noting as well that she might need to specify which objection she's sustaining if more than one objection is raised. In this trial both hearsay and relevance objections have been raised at the same time, and the judge might specify that she's sustaining e.g. only relevance. This can tell the examiner whether they are free to keep going down the same line of questioning with different questions, if the objection sustained was hearsay, or to move to another line of questioning, if the objection sustained was relevance. | A court would "dismiss" an action, a claim, or a defendant, but I don't know of any American court that would "dismiss" a motion. Instead, a motion would be "denied," or perhaps "overruled." If I saw this language in a motion, I would assume it was just a lawyer doing the stereotypical redundance thing. |
Can a computer program agree to Terms of Service? Most service providers have Terms of Service that people or entities need to agree to before legally using their services. On another question I had, arguments were made that you needed to be a person to agree to the TOS. But this doesn't seem right as corporations can agree to TOS and they are not people. I figured it would explicitly fall under the exact verbiage of the TOS on who could or could not agree to the contract. For example, here is a section from the cloud service provider Digital Ocean's TOS: Whom does this TOS apply to? When we refer to “DigitalOcean” or we use pronouns like “we”, “us” or “our”, we are referring to DigitalOcean, LLC as well as its parents, affiliates and subsidiaries. When we refer to the “User”, we are talking about you, and we will also use words like “you” and “your” to refer to you. Who “you” are can get more complicated if you are using our services on behalf of a company, organization, or other entity. In that case, you are representing to us that you have the authority to bind your company, organization, other entity to this TOS and that you agree to be legally bound by this TOS on behalf of such entity (and “User”, “you”, and “your” then refer to such entity). If you aren’t sure what this means or whether you are authorized to bind your company, organization, or entity to this contract, you should ask others in your organization to get clarification about authority. They mention "or other entity". Is a computer program considered an entity that can agree to terms of service? | Other Entities means Legal Person The reason for the term "legal person" is that some legal persons are not people: companies and corporations are "persons" legally speaking (they can legally do most of the things an ordinary person can do), but they are not people in a literal sense (human beings) This is very similar to Corporate Personhood. Among the recognized items for legal personhood are usually groups of people, such as a corporation, states or countries, but also churches and temples. In rare cases, Temple buildings and at least two rivers are legal persons. All non-natural legal persons have in common, that they are represented by natural persons - aka humans. A computer program is not represented by a natural person. A natural person (possibly representing a legal person) can use a program to agree to a contract, but a program agreeing on its own is not following the basic principle of a contract, which requires a meeting of the minds on the offer. The computer program becomes the tool that facilitates the contract, for example by offering a prewritten contract to people that want to use the service. Since the contract is usually offered by the service providers as is with no renegotiation allowed, those contracts can only be accepted or not - their side of the bargain is offered and then facilitated by the computer of the service provider - we have an invitation to treat. If a natural or legal person is able to agree (through its representative), the contract becomes binding. If you are not a legal person - so neither a human nor one of the recognized categories - you can not agree to the TOS, the contract is void. | TOS are a contract. If you have a contract through the App, you have incorporated the TOS as a term of your contract. Contracts mean what they say they do, what you are thinking of as "basic contract law" is actual just an ordinary and customary term that people in your industry usually make a part of the contract, not contract law itself. | I had a contract with a company, but that company changed its name. Is my contract still enforceable? Yes, because what matters is the entity itself. A contract is not stricken merely because one or more parties changed names or labels. | Editing is protected speech under the First Amendment. The government may not require any license to perform such services, though an author could impose whatever credentialing requirements she chooses. If you have created a business to provide those services, that business may need to be registered with/licensed to business in the state generally, but again, it would not require any special licesnse to perform editing services. Whether you provide those services as an individual or as the agent of a business entity, any income you derive from editing is subject to taxation the same as any other income you receive. | Contracts don’t need to be signed Unless they are of a class that does - NDA’s aren’t. If the parties agree to a contract then it binds them. You agreed and your evidence for doing so is your signature. They agreed and their evidence for doing so is your signature on the contract they gave you. | Can reading a something mean agree to to a contract? Just reading — no. Reading and acting as if you have agreed — yes. This is called "acceptance through conduct". I had an employer deduct a small fee to process my payment, they argued that they were allowed to because it stated they would on the website I had to use for the job. Does this even form a contract? Yes — because you read and continued to use the website. librarian came up to me and pointed out a sign saying I had to pay before using the computer (which is uncommon where I live). Is there a contract formed by just having a sign? Hypothetically could the library sue me for not paying? Provided that you read the sign and started using the computer — yes. However, because you did not see the sign, the library had failed to communicate the terms of the offer to you, which means there was no contract. However to however, if you continue using the computer even after the librarian tells you that you have to pay, you now accept the offer through conduct. In this case, the library could sue you for damages should you not pay. if there was a sign on the door to a private building saying you have to pay $20 to enter, if you didn't read the sign and entered, could the owner demand $20 from you? If the sign was so conspicuous that no reasonable person would have missed it — yes (because you should have read it and then you entered the building. But you could get away if you convinced the judge that you genuinely did not see/read the sign, for which you would have to have a plausible excuse (e.g. vision impairment). | Section 4, Definition 4 Covered Entity, emphasis added: The term "covered entity" means a device manufacturer, a software manufacturer, an electronic communication service, a remote computing service, a provider of wire or electronic communication service, a provider of a remote computing service, or any person who provides a product or method to facilitate a communication or the processing or storage of data. This definition seems extremely broad, and could be stretched to cover an answerer on Stack Overflow whose answer provided a method facilitating data processing, storage, or communication (which covers most software methods). So let's then look at what can be required of a covered entity: Section 3(a)(1), Requirement: ... a covered entity that receives a court order from a government for information or data shall provide such information or data to such government in an intelligible format or provide technical assistance as is necessary to obtain such information or data in an intelligible format or to achieve the purpose of the court order. Subsection 2 limits the scope so that a covered entity only has to provide data if the data was "made unintelligible by a feature, product, or service owned, controlled, created, or provided by the covered entity or by a third party on behalf of the covered entity." However, courts cannot effectively require people to do the impossible; if a programmer wrote a method that was used in an encrypted communication service that does not mean the programmer, lacking the encryption key, will be forced to break what they believe to be unbreakable encryption. The key here is in section 3(c), emphasis added: A provider of remote computing service or electronic communication service to the public that distributes licenses for products, services, applications, or software of or by a covered entity shall ensure that any such products, services, applications, or software distributed by such person be capable of complying with subsection (a). So if this bill were to become law, it would be the service provider who's responsible for making sure the government can get the intelligible information. The government could require e.g. the author of the encryption function, even if that person's not part of the service provider, to help break the encryption, but the responsibility for ensuring data accessibility lies with the service provider. The definition of service provider seems absent from at least what I can see of this bill, but it seems that a company selling a communications service to customers would very likely qualify, and a person/company who posted an answer on SO that was then picked up and integrated into something someone else distributed as part of a service, very likely would not. | The basic requirement is that any communication using the trade name be possible to trace back to the LLC using the trade name, either with a disclosure in the communication itself, or with a trade name (a.k.a. doing business as a.k.a. dba) registration that links the trade name to the entity in the public record. If this is not done, business conducted in the trade name may be treated as a sole proprietorship or general partnership of the people actually conducting the activity, rather than an activity of the limited liability company behind it, thus depriving those people of limited liability protection. |
is after the fact consent ever possible or a defence? Are there any Jurisdictions around the world that allow for consent to be after the fact ? or is there defences that allow for consent obtained after an act to be a defence (as in the accuser or victim clearly being permissive or even indulgive in an act) | Where consent is required for some act to be lawful, the consent is required before or at the time of the act. Typically, consent does not need to be express, but can be implied by conduct. It's unclear what "consent after the fact" means. Presumably it means someone has acquiesced to a prior use of force. Certainly that can happen, although it does not make an unlawful act retrospectively lawful. To illustrate the difference, a boxer consents to a certain amount of beating in the sports ring. Whereas a victim of a criminal beating may not have consented, but later may nevertheless acquiesce to the beating they received. As an aside, there is a discrepancy between the concept of consent as being like a bureaucratic decision which is announced and recorded, and the reality of how humans make decisions which often does not involve a sudden conclusion or a sharp transition between a pending and settled state, and might involve internal conflict before there is a clear outward indication of how the person is minded, or inconsistency across time in how a person expresses their mind. How humans react to uncertainty is typically by suspending judgment about events until more information emerges. For example, people often do not react harshly to an insulting remark, until they are sure that it was intended to be insulting by the person who made the remark, and that it was unwarranted. This suspension of judgment during uncertainty, conflicts with laws that expect a firm state of mind to exist and a decision to be made quickly about the consent to an impending act. With human recollection, earlier events can also be reinterpreted through the prism of information that arises later. Keeping careful account of when various pieces of information arrived in their knowledge, or how they previously felt about a scenario based only on what they knew at an earlier time (as distinct from reasoning about how they would now feel about a past scenario with their current knowledge), is a cognitive skill which people possess to a very variable degree. This natural human tendency to reinterpret past events (and mistaken earlier judgments) based on later information, also does not sit easily with legal theories around consent. | How much would I be expected to reveal if not directly connected to the case? For example, if I was asked, "What were you doing in the alley at night?," would you be required to reveal the information if it is potentially humiliating (e.g. you were having an affair) or illegal (e.g. you were getting illegal drugs)? The latter case seems to violate the protection against self-incrimination. Or what happens if you just lie about something inconsequential? You have to answer any permissible questions (i.e. consistent with the rules of evidence) asked. If you were doing something illegal you can claim the fifth and not testify unless you are given "transaction immunity" that your testimony will not be used against you in a criminal case against you. Usually perjury prosecutions require that the lie be about a material fact. Suppose you receive a death threat (either verbal or in writing) from the person charged with and who committed the crime. Something along the lines of: if you testify against me, then my friends will kill you after the trial. What legal options do you have? Tell the prosecutor on the case and ask the prosecutor to provide protection to you and to go after the people making the threat. The witness protection program was created for these cases. | Each case is decided on its own facts I know you want a clear answer to where the bright line between illegality and legality but there simply isn’t one. The reason you feel there is a “legal grey area” is because there’s a legal gray area. The way the common law works is that there are some acts and omissions that are clearly crimes/torts/breach of contract, some that aren’t and some that live in that grey area. When someone brings a case in the grey, the court will make a ruling that will apply to similar facts and we get a little light on the subject. Then the legislature changes the law and it all goes dark again. Each of your bullet points is simply too vague and encompasses so many fact patterns that it’s impossible to say. For example, “Using a fake name/birthday”: do the ToS prohibit this? is there an intent to mislead or deceive? are there laws that prohibit this? is a benefit being received dishonesty? etc. If you come with a specific, detailed fact pattern there might be case law that is specifically relevant that will allow an answer with a high chance of being right. However, nuances matter and no two fact patterns are exactly the same and the difference might be enough to distinguish your case from the precedent. Or there might not be a relevant precedent because no one has sued/prosecuted on this fact pattern before. Then we are in virgin territory and even experts are only making educated guesses until the judge (and the appeals court(s)) hand down their decision. These are the most interesting cases to watch but the most terrifying to be part of. If you need to ask the question”where’s the legal line on this?”, there’s a decent chance you have a foot on each side. | There are several misunderstandings here. First of all, the US exclusionary rule applies only to evidence gained by the police, or by people acting as agents of the government, and not always to them. Secondly it applies only in criminal cases. The question does not say which state this would be in, and these are largely matters of state law, so it makes a difference. But I don't know of any state where taking a video without explicit consent, in a place where the person has a right to be, is a crime. In some states it would not even be a tort. If a video is taken without the subject's consent, that may be an invasion of privacy, and the subject might be able to sue (not "file charges). In such a case the video itself would absolutely be put in evidence, and if it recorded verbal permission to take the video, the case would be promptly dismissed, quite possibly with sanctions for a frivolous lawsuit. Even if the video were taken by a police officer, and was presented as evidence in a criminal case, the office could testify to the verbal permission. That would be enough for the judge to view the video as part of a suppression hearing (which is not before a jury). If the judge saw and heard verbal permission to take the video, that would be an end to the motion to suppress, unless it was claimed that the permission was somehow coerced or faked, and evidence supported such a claim. | I have not found a case directly on point, but there is a case in the right neighborhood. In Flordia v. Carter 364 So. 2d 1249, Carter was charged with perjury for making a false statement under oath. He recanted his testimony in a letter to the defense attorney the next day. Subsequently he was charged with perjury: the trial judge dismissed the case based on his having recanted (which is a defense to perjury). The judge said (quoted in the appeal below and citing a relevant precedent Brannen v. Florida 114 So. 429) It matters not whether Carter knew his original testimony was false or whether he was merely mistaken. "The law encourages the correction of erroneous and even intentionally false statements on the part of a witness, and perjury will not be predicated upon such statements when the witness, before the submission of the case, fully corrects his testimony." The lower appeals court rejected the trial court's dismissal, saying Recantation is a defense to an allegation of perjury only where there is an acknowledgement of the falsity of the original sworn statement, a voluntary retraction of that statement, and a new statement which discloses the true facts. It is not a viable defense where the perjured testimony has substantially affected the proceeding or it has become manifest that such falsity has been or will be exposed. Otherwise, one could rest on his lie, allowing it to substantially affect a proceeding, and never retract unless the falsity had been exposed. This would provide no inducement or encouragement to tell the truth. That court basically felt it was based on the threat of being discovered, and felt that a particular state statute had taken away the recantation defense, so they reinstated the charge. The appeal to the Florida Supreme Court, Carter v. Florida 384 So. 2d 1255 basically declared that the appeals court was wrong about the statute (they officially held that recantation is a defense to perjury). They concluded that Carter gained nothing by recanting (that was a distinguishing feature in a precedent that the lower court favored). The dissent in this decision opined that It may be that the false deposition testimony by Dr. Carter was inadvertent and without criminal intent.... These, however, are factual issues and should be resolved by a jury rather than by the trial court on a motion to dismiss. What unifies all opinions on the matter is that a false statement made under oath must be recanted. The reason why Carter was not convicted was that he (possibly) was unaware that his testimony was false and he did recant when he became aware of the facts. | You have to deconstruct the question on a country by country basis. In the US legal system, the question presupposes something incorrect, that there are "investigators" who play a rule in legal system, and their job is to determine guilt vs. innocence. That is something determined by the "finder of fact", typically the jury (it could be a judge, when you have a bench trial). The finder of fact may take into consideration testimony provided by a witness, and it is possible that a witness is an expert in some relevant area, who might attest to the significance of a claimed piece of evidence. The expert cannot testify on the question of guilt. For example, a DNA sample might be admitted as evidence that the defendant was present in certain circumstances, which could reasonably lead the finders of fact to conclude that the defendant did strike the victim. A DNA sample cannot testify, therefore some expert must testify about the significance of the sample, specifically whether the sample "might have" come from the defendant, or "definitely came from" the defendant. Others will testify as to the circumstances surrounding the collection of the sample. It is then up to the finder of fact to evaluate all of the evidence plus understand the instructions regarding the criteria for finding the defendant "guilty". Theoretically, Bayes Law could enter into an expert witness's (scientific) testimony, and likewise an opposing witness could contradict the putative relevance of BL in terms of reaching a scientific conclusion. BL could enter into the discussion at the level of the bottom line "definitely/possibly does come from the defendent". The only practical way that I can see BL entering into the courtroom at least non-gratuitously would be if there is a dispute over the reliability of a certain test, thus should the testimony be allowed in the first place (it might be excluded as being unreliable). There is a genre of research (for example this) that addresses the problem of sketchy statistic inferences, pointing to a role for BL. I would say that the prospects are dim, not bright. | Yes, but ... How can you know for sure? Let's say I'm charged with, and acquitted of, murder. Immediately after my acquittal, I confess to the crime describing how I did it and producing tangible and material evidence like the murder weapon, etc. So, did I commit murder? Well, we can't say. All we can say is that if I were tried again with all this new evidence, I'd probably be convicted but we can never know for sure because that trial isn't going to happen. Examples of people who (possibly) evaded justice due to double jeopardy Isaac Turnbaugh, O J Simpson, Fong Foo, Mel Ignatow This Unnamed Queensland man (double jeopardy can be waived under Queensland law when there is new "clear and compelling evidence" - the court found the evidence was neither clear nor compelling), Sharone Sylvester Brown. On the other side of the ledger, Michael Weir was the first person convicted after the UK changed its double jeopardy laws in 2005 allowing the Court of Appeal to grant a retrial if "new, compelling, reliable and substantial evidence" had emerged. | england-and-wales The timing of charges being laid is a factor to take in to account, as is whether a charge is appropriate after taking in to account the suspect's circumstances described in the OP, but setting those aside - more often than not it's a negotiation between the various prosecuting agencies and the investigation teams' supervisors resulting with the more serious offences taking precedence. The lesser offences are either dealt with at a later trial or left to "lie on file", meaning there is enough evidence for a case to be made, but that it is not in the public interest for prosecution to proceed, usually because the defendant has acknowledged other, often more serious, charges. No admission to the charge is made by the defendant, and no verdict is recorded against them. Wikipedia |
Subsets and Splits