Civil Rights and Injuries
Jun 2, 2020
What is the Difference Between a Protest and a Riot?
Expert personal injury attorney, Michael Ehline discusses the subtleties and differences between a riot and lawful protest for dummies.
May 28, 2020
How is the Federal Government Stopping Unconstitutional COVID Orders?
Attorney Michael Ehline discusses the Federal Govt's role in pushing back against executive orders in primarily blue states and the parallels with the American Revolution.
Dec 10, 2019
Pensacola Shooting Highlights Nonsense “Gun Free Zone” on Bases
Miserable Policy Costing Service Members' Lives. I am extremely saddened by last week's deadly shooting at Naval Air Station Pensacola. Deeply angry, as well. During my time in the United States Marine Corps, I would never accept a policy allowing our warriors to be shot on our own soil. Especially as sitting ducks. That's what current military policy allows. The shooting also follows a similar attack on Pearl Harbor. Both offenses had one thing in common: with few exceptions, military bases are gun-free zones. While this may seem counterintuitive, it's sadly the case. NBC News reported on the asinine policy that helped the shooter in both cases. Five brave sailors are dead for no good reason. In the second case, a Saudi national committed a heinous act of terrorism. Perhaps the worst of all of these examples was the Fort Hood shooting in 2009. This was also an act of terrorism. It left 13 soldiers dead and 32 wounded. Simply unacceptable. This is a 1990s era policy that restricts the use of firearms, except in use in specific missions. This also means that any soldier, sailor, airman, or Marine using such a firearm-- even to repel a shooter on base faces a potential court-martial. Furthermore, this also makes these appealing bases targets for the deranged. Shooters know that defenders of our nation will be unable to fight back. Besides, this concentration of military personnel is especially lucrative for jihadists and others who would wish our nation harm. Donald Trump promised to change this policy on day one in the office during the 2016 campaign. Due to the President's respect for the military, I hope that these tragedies will convince him to do so. Not one more member of our armed forces deserves to have a target on his or her back. Mr. President, we need you now more than ever. With one stroke of a pen, we can end gun-free zones on military bases.
Jan 16, 2019
Rights of the Disabled to Remain Silent When Applying For Aid
Don't speak to anyone but a lawyer In November of 2014, CFPB (Consumer Financial Protection Bureau) had to launch a bulletin to take notice and talk about the current disallowed practice from the lenders. Lenders have been asking disabled buyers questions before offering them the loan that they should not be asking. It is quite a common fact that you will have to face a lot of questions, especially those related to your finances, and answer them honestly before you can borrow the loan. Income information is the most important part of this information. How Does Social Security Law Income Come Into Play? The case about the income-related questions is a bit different for those who receive social security disability income. An issue that has been recently asked from the borrowers who were on disability is if they know how long their disability income will continue to come. This is the question that CFPB has explicitly not allowed lenders to ask from their borrowers. In addition to that, it has researchers found that many banks contact the doctors of the disabled to know about their disability condition and how long lasts for. It gives rise to some serious concerns about the transaction if the lender insists in these questions. Such questions are not permissible. At the same time, the borrower must not bother to arrange for any documents that contain any information about the condition of the disability and how long it will continue for. In fact, it has been said by the officials from the governing authorities that asking for such documents and information from people with disabilities is straightforward discrimination and against the law. This concern might sound new but has been around for some time. Example of a Recent Bank Problem. We see this in a recent example. The bank asked similar questions and activities that were synonymous with asking the terms of disability. Furthermore, the bank asked the borrower whether he will continue to receive his disability income for another three years. The bank did this before offering him refinancing on his mortgage. In addition, the bank also approached the doctor of the borrower about the status of his disability. The bank grasped the situation well and ended up settling the matter by offering a significant sum to the plaintiff before entering into lengthy court procedures. A borrower with a disability is only required disclosing he receives disability income. And the victim gets the amount of revenue coming to him. Any questions and inquiries from the lender that go beyond this are not permissible. Moreover, the fact that the Social Security Administration does not give any written proof to disability income receivers on duration. Disabled lenders beware of such tricks from banks. And if this story sounds familiar, contact a skilled attorney. The Ehline Law Firm APLC is here to help.
Jan 9, 2019
How Do I Sue Berkeley’s Mayor for Free Speech Violations?
Violence Against Conservatives? Symbol of the democrat party Berkeley's mayor is in hot water after issuing a stand-down order during the May Day riots and before. This riot allowed Antifa rioters to beat conservative protesters. It also allowed widespread violence across the city. The rioters set fires and worse. Much of the issue comes from Ann Coulter's planned speech. However, anti-speech protesters prepared to attack conservatives. Berkeley's mayor told the police protecting the college's Young Republican club to step away. The new mayor, Jesse Arreguin, is allegedly involved with some extremist groups. He is a member of By Any Means Necessary, a group which incited riots nationwide. The group fought with Neo-Nazis in California last year, causing injuries. Mayor Arreguin also stopped police from involvement in the April 15th tax day riot, which resulted in 11 injuries. Each one of these incidents becomes worse and escalates. Gateway Pundit reported on the issue, as did FoxNews. Fox Business reported on the incident. You can see the video of the events below. How to Sue the City of Berkeley If the rioters injured you or a loved one, you have legal options. Look no further than free speech defender and former Marine Michael Ehline. Furthermore, the Ehline Law Firm is second to none in defending the rights of patriots. No forcible attack should be allowed against peaceful people demonstrating. Berkeley's mayor does not understand that. The well-established pattern of ties to left-wing radical groups and efforts to help the rioters shows intent. Mayor Arreguin refuses to step in when his job demands it. So does the City Council. Contact us today for more information about how to launch a lawsuit against him for injuries. The Ehline Law Firm Personal Injury Attorneys, APLC helps determine the extent of injuries and the means to rehab. We also figure out the mental damages caused by such an experience. Our firm stops at nothing-- we are relentless. Contact us for more information. We will come anywhere in the state to discuss your legal options.
Jan 8, 2019
Drones and Privacy
combat drone isolated on white background The use of drones could be innocent or for nefarious reasons. They could be something as simple as taking aerial photos of a sunset over the beach. But this kind of high-tech device could be used to snoop on someone inside of their house too. So the use of drones as snooping devices intrigues attorney Michael Ehline. He says UAV's bring to mind many legal complications. Government agencies and the military used the unmanned aerial craft for years. For example, it is helping to fight terrorism. And it has even been used to conduct domestic surveillance for years. But now, private companies like Amazon are seeking FAA approval for business use. For example, their “Prime Air” program recently hit the news. The Amazon website claims that aerial devices could be used to deliver online merchandise. They even compare it with pizza delivery. Private Citizens and Drones. Private citizens are not left out of the equation, with some being intrigued and others who have been hobbyists of this kind of technology. One of these people is Santa Barbara resident Cliff Baldridge, who is a tech-savvy aficionado and an everything Google expert. He has used radio controlled vehicles for approximately three decades and uses the drone aircraft for practical and charitable purposes. Mr. Baldridege believes he is an expert and uses drones to capture aerial footage of Santa Barbara vistas and then posts them on his Santa Barbara Arts TV page on YouTube. The pictures are taken with an AR Drone 2.0, which he has modified to hold a GO Pro HD camera, and, to use the modified technology enable Mr. Baldridge to have access to stunning images and video he said. He also said that without the utilization of the drone, he would never be able to capture these images. Potential Liability Issues? Personal injury lawyer Michael Ehline, who writes a legal blog, said Mr. Baldridge must be careful how he uses drones and the film. The licensed professional stated that there could be two legal issues with the use of these aircraft, the right to privacy and the FAA. Mr. Ehline said that even following the FAA licensing rules, the penal code is another issue. And this section includes people maintaining their reasonable expectation of privacy. Reasonable Expectation of Privacy? So the law is that recording in public places under California law is permitted, so long as you keep your reasonable expectation of privacy intact. An example would be people at the beach who are not aware they are on tape. So now could be a violation of the law. But at the same time, videoing a police officer making an arrest remains legal. This type of technology gives Mr. Ehline pause since he believes it is possible shortly that legislators and judges will agree with the use of government drone use. But of course, they will restrict private citizen’s use of the aircraft. He said that it would not be unforeseen for law enforcement to argue they have the right to use drones to record, but at the same time, take that ability out of the hands of the ordinary citizen. Mr. Ehline adds that in California, the stance taken by the courts is a pro-government position. District Attorney Joyce Dudley and a Santa Barbara representative made a statement for the News-Press that to their knowledge, they do not use drones. Mr. Ehline still sees the use of these aerial vehicles could quickly become an invasion of privacy and said law enforcement should be held accountable and went on to say how beautiful it would be to have a drone capture a police stop recording the incident. Recording Police Reduced Police Misconduct? He cited the case of Rialto, where systematic video recording police officers on the job showed an 80% reduction in misconduct reports. In this situation, the officers carried cameras. And those devices recorded their actions. But imagine how much better this would be with drones? I mean, it could keep less than admirable officers acting within the law, right? The other issue is that it could provide the government with the Legislature intends for using surveillance without a warrant. Even the drones planned to be used by Amazon could be tapped into, and companies like Amazon, who are attempting to get approval for enhanced business opportunities, could decide to go along with requests by the government for drone information to gain that support. The current private drone use regulations include: Flying below 400 feet. Mr. Baldridge said that the guidelines for recreational and hobbyists come from in a 1981 circular. And these standards state that airborne model aircraft should remain a “sufficient distance from populated areas.” And Baldridge says you should not fly the craft above 400 feet. Also, drones must remain within sight of the pilot at all times. And this is to avoid endangering others and to avoid charges of recklessness. Privacy. Mr. Baldridge said that there is a general expectation of privacy in public. And he has not heard of any cases in Santa Barbara where people are concerned about their privacy. But he said that when this craft is over 50 feet in the air, it is as high as a palm tree. So for him, it's filming public scenery and landscape. So, in that case, the drone isn't low enough to look in someone’s windows. According to District Attorney Dudley, she does not know of any current lawsuits of private done use. The FAA is working to establish rules to include drone use in the national airspace. This process is going slowly, and the agency has reported being behind schedule in developing standards. So the agency will not meet a September 2015 deadline. Transportation Department Inspector General, Calvin Scovel III stated as much at a House Transportation aviation subcommittee back in 2014. The California Assembly passed drone-related legislation pending; Governor Brown finally signed AB 2306. The law now codifies the illegality of unmanned aircraft systems to invade a person’s privacy. Senator Dianne Feinstein, the chairwoman of the Senate Intelligence Committee, spoke out about a personal incident with a drone. And that has made her question her backing of the NSA surveillance program in the past about personal privacy. Sen. Feinstein said on 60 Minutes that she was in her home and, there was a demonstration outside. When she went to look out the window, there was a drone outside the window. She said this made her question what benefit there was to society to have drone use. In addition, she pondered the roles of stalking or invaded privacy. She wondered about the distance the drone comes to the house. The legal part of drone regulation remains to be discovered. Also, whether or not California legislation will clamp down on drones, invasion of privacy, or other nuisance. Other Sources: PDF Drones story 3-24(1)
Jan 5, 2019
What's the Deal With the Recent Spate of U.S. Vets Suicides?
Every day, between 18 and 22 veterans commit suicide. These suicides happen for some reasons. However, many trace back to issues during the time in the service or afterward. Yes, poor treatment and long waiting times are not helpful. Altogether, these issues add up to a significant crisis for the country. What other group faces 7,000 unnecessary deaths a year? Recently, one of the more significant trends involves suicide in VA parking lots. Military.com reported on the disturbing incidents. These deaths happen here for many reasons. Part is due to vets not wanting family members finding them. In other cases, poor care may be a factor. One Navy vet, 76-year-old Peter Kaisen, shot himself outside the Northport Veterans Affairs Medical Center in New York. He was allegedly denied access to an emergency room doctor for a mental health check. An Army and Afghanistan vet, John Toombs, hanged himself outside a TN center. He stated in a video it was due to being unable to visit the care he needed. Of particular concern is the risk of opioid use and abuse surrounding the VA. In particular, opioids are overused to treat physical pain. This opens the real risk of addiction and worse. On top of this, since 2001 the rate of suicide among veterans increased by 32%. The risk of suicide is 21% among veterans than the average adult. What are Some Options for Families of U.S. Military Veterans? This suffering above is a pain we know all too well. Our lead attorney, Michael Ehline, is a disabled former Marine. We feel the pain of our armed forces and their family. It is often a thankless job, but only the finest answer the call. Families have several options. One includes a formal inquiry of the VA's care of their beloved. Another includes negligence litigation against anyone that wasn't doing their job. Furthermore, Ehline Law's resources are mainly open for veterans and their families. If you're facing hard times and don't know who to call, we are always available, 24/7.
Jan 4, 2019
How Can I Avoid Personal Injury or Arrest and Still Film Police?
Public Recording of Public Servants is Legal If No Reasonable Expectation of Privacy Attorney Michael Ehline. The Motorcycle Rider's friend. Michael Ehline wrote a brilliant piece here dealing with personal injury avoidance and filming law enforcement. Check it out. Although we normally only deal in serious injury cases, often, civil rights cases become intertwined into a case of terrible injuries. For example, a bad cop may potentially use illegal, or unreasonable force to stop you from filming his/her brutality during detention or arrest. Ehline Law wants to help consumers understand their rights and obligations while filming the police. By Michael P. Ehline, Esq. – First, let me start by saying that I love the police and that many of my Marine Corps brothers are now Deputy Sheriffs or CHP. I am pretty sure at least one Redondo Beach K-9 cop is also an inactive Marine. So the bad things I am about to say about bad cops, are about BAD Cops, not the good ones. In the Corps, we called them “sh+*birds.” Now that is out of the way, let’s delve into the law. First, we will discuss the recording of non-police, so we can get a baseline and basic understanding of California privacy laws and then we will go to the police. So, in California, if you record a private person, and they don’t know, you are in trouble. This remains true even if in public, or even a semi-public place such as out on the sidewalk, bike path, or eating establishment. So if the individual you are taping does not have “an objectively reasonable expectation no one is listening in or overhearing the conversation” you are in trouble. Courts determine this on a case by case basis, based upon the reasonableness of the conditions. So this means you cannot merely assume that you are not breaking the law, when you make a recording of a person, under such circumstances. Failsafe When Recording Private Citizens – Get Consent First The Law: The statute applies to “confidential communications” — i.e., conversations in which one of the parties has an objectively reasonable expectation that no one is listening in or overhearing the conversation. See Flanagan v. Flanagan, 41 P.3d 575, 576-77, 578-82 (Cal. 2002). A California appellate court has ruled that this statute applies to the use of hidden video cameras to record conversations as well. See California v. Gibbons, 215 Cal. App. 3d 1204 (Cal Ct. App. 1989). In California, always try and get the consent of all parties before recording them, especially if it is reasonable to assume their communications might be “private” or “confidential.” In addition to subjecting you to criminal prosecution, a violation could also trigger the California wiretapping law in a civil lawsuit for damages by the victim(s). (See also Cal. Penal Code § 637.2.) California’s wiretapping law requires “two-party consent.” In California, it is a criminal act, to record or eavesdrop on confidential communications, like private phone calls, private chats, without the consent of all parties to the conversation. (See Cal. Penal Code § 632.) See also https://www.citmedialaw.org/legal-guide/california-recording-law. Recording of Public Meetings: In California, recording all public meetings is legal. This legally means videotaping is allowed. Furthermore, an exception is when the state or local body holding the meeting determines that the recording disrupts the proceedings by noise, illumination, or obstruction of view. (Cal. Gov’t Code § 11124.1(a); Cal Gov’t Code §§ 54953.5(a),-.6.) *To learn more, see the “The Reporters Committee for Freedom of the Press’s Open Government Guide: California.” (Click Here.) Ok, So Can I Record Cops? The answer is not a simple yes or no. However, in California, it is well-settled law. With exceptions, yes filming is legal. But you can only film the police while they are on duty, and you can’t interfere with their official duties. (So look for bad cops trying to get in between the reporter and blocking their cameras, and then charging the photographer with resisting or obstructing them!) Otherwise, cops are treated under the law as private citizens, subject to the same protections above, as anyone else. Other jurisdictions agree. The First Court of Appeals stated that it is ok for the general public to videotape employees, e.g., police officers, while working. This decision took place after cops were piecemeal arresting recording citizens while television news channels ran stories. In California Can I Record The Police With Video? The internet, especially YouTube, has shown both the good and the wrong side of the police, especially the TSA goons at the airports. Many agencies, although having received multiple citizen complaints against certain rogue officers, just chose to act as though there was not a problem. And this is true even though their personnel ignored their sacred oath(s). Others do not make it online, because exercising their First Amendment Rights is harder. Furthermore, in other cases a cop stomps or confiscates the camera. It happens! In the YouTube examples, you can see a man filming a police officer fiddling with his cell phone. And the police are threatening to arrest him for filming an event. They have surrounded the man and lied to him, telling him he needs an attorney. And they then attacked him, destroyed his property, demanding that he not record the police. Conversely, in the second video, you also see a friendly cop who understands the law of “open carry,” and who also obviously does not object to the future YouTube video. So this may freak you out. Two cops were doing the reverse of one another. The question is, how legal is it to film the police in public? There have been some individuals, who have been prosecuted for filming the police. Police charged them using old wiretapping laws, or with Penal Code Section 148, (resisting, obstructing, delaying…). When All Else Fails Penal Code Sec. 148 PC Sec. 148 is the favored section bad cops use to charge people who the police had just violated, such as civil rights violations and excessive use of force. It is a common practice by bad cops to accuse someone they just beat, or broke, with a crime. They do this so they can get leverage in a future civil case if they are sued. Plus this gives the police union some firepower when the bad cops are trying not to get terminated for being, well, a bad cop. If an arrested criminal defendant pleads out to the false charge (no contest, not guilty, etc.) out of fear, or for lack of money to pay a lawyer, or are “strong-armed” by the public defender, etc., the officer can later argue reasonable force or methods were used. And that is res judicata, etc. in any future civil rights lawsuit. This is the favored method municipal police departments historically have used, and it is very effective at restricting the unalienable rights of the sovereign (you). Seal Your Coffin With Outdated Wiretap Laws? Now, these old wiretap laws were enacted in the past to prevent the recording of private conversations. District attorneys faced with prosecuting anyone arrested by police for filming, have only been able to find wiretapping laws to nail the citizen or try and use obstruction charges above. But of course, this is just a pretext and punishment. It's unjust and Orwellian, right? Well, Courts agree! Enter Alvarez This attitude by overzealous prosecutors changed recently, with actions of the U.S. Supreme Court. This came when the court declined the pleas of the ACLU v. Alvarez. The court left in place a ruling by a U.S. Federal Appeals Court ruling. Here, the Appeals Court declared that Illinois wiretapping laws used for the filming of police violated the individual's First Amendment Rights. Amen! This ruling was a decision that makes sense and is right? But UCLA Law Professor Eugene Volokh said there will still be problems. Professor Volokh expressed in a recent television interview; those police officers are not even sure what the law is. And this can lead to your arrest when you disobey the officer ordering the filming be stopped. He said the worst thing that can happen is being taken to the station, where you would be released a few hours later. Filming our Public Servants Helps Keep them Honest The good news is law enforcement officials are protecting citizens Constitutional rights. One example of this occurred during Thanksgiving weekend at an airport in Albany. A grassroots movement was there informing travelers about the dangers of TSA body scanner and filmed the encroaching pat-downs at the Albany International Airport. One airport official demanded the activists stop shooting, show their identification, and threatened arrest for breaking the law. Local law enforcement arrived at the scene, where the sheriff told the airport official that the activists were not breaking the law. He could not arrest them or order them to show their identification. This is no surprise since the Sheriffs almost universally understand that many federal enforcement officials trample on individual rights as a matter of course. The sad part about this is not all members of law enforcement will behave in this manner as did the Shire of the Reef above. In most cases, threats of arrest and intimidation by law enforcement is usually enough to make the activist or individual stop filming. The one thing to remember, it is legal to film the police. No Charges for Obstructing or Delaying Do stand far enough away from the officer to allow him or her to feel safe. Do not run, at or stand close to an officer who is performing their duties, if, in any way, you provide a physical barrier to them. Be respectful. They are not your enemy. Let them know that you are exercising your First Amendment Right to film. And tell them if they feel you are a threat, to say to you right away. That way you can alter any perceived behavior, to make them feel safe in the performance of their duties, short of you not exercising your right to record them. At the end of the day, when tempers flare, you may never be able to avoid injuries when filming certain police. But if you are in compliance with your rights, duties and obligations as a citizen, the law is on your side. If you were were attacked while filming law enforcement, let us know. Sources: legal-to-film-police/ https://steeringlaw.com/police-misconduct-videos/ https://plus.google.com/u/0/115307003069691533470/about
Jan 4, 2019
California Senate Bill 411 Signed into Law---Legal to Film Police Officers
Many California citizens have heard the demand from the police: "Sir, please turn off the camera," or "turn off the camera, or we'll arrest you," or words to that effect. What most of us know who have had contacts with law enforcement, is that most cops hate filming. From the academy training onward they reject this idea of being filmed. Police have the discipline to protect the city from potential lawsuits and to "take charge." In fact, this remains contrary to what most people think. But the job of the police is not to protect citizens or their property. Supreme Court Rules: The Supreme Court ruled on Monday that the police did not have a constitutional duty to protect a person from harm. Even a woman who had obtained a court-issued protective order against a violent... (See also NY Times.) The primary job of the municipal police is to protect gov. property, personnel and "policy." (eg police.) Officer safety, and many other reasons are given as reasons for police not being caught on tape. According to attorney Michael Ehline: When a citizen does not comply, many times he or she finds a ride to the local jail. The accused will face thousands in attorney's fees for fighting off a frivolous Penal Code Section 148 charge. But courts have already made clear that citizens can film police. Of course, this is with certain exceptions. For example, safety demands that filmers be well clear of the potential danger zone. In the Golden State, each jurisdiction and department want to handle these primarily "false arrest" cases differently. Sadly, the many state prosecutorial agencies needed to see it in writing from the governor. So till that happened, they failed to force their officers to start honoring the law on filming police. But Gov. Jerry Brown signed into law Bill 411. So now California is in accord with the Supreme Court on filming police while on duty. This rule means when police officers detain a suspect or make an arrest, witnesses can use cell phones to record the incidents. Even the person that is detained may record the event. In the past, many of the recorded videos have later posted to social media websites or YouTube. Many have gone viral. According to Sacramento County Sgt. Jason Ramos, it is the way the world has become. Cops hate it! Yawn Sgt. Ramos did say that in many cases the officer's jobs are more due to recording activity. So there is a potential for officers to become preoccupied with the people making the videos. The law officer went on to say there is a “fine line between being a diligent citizen with a camera and interfering.” I call nonsense. A diligent person would just remain outside the zone of interference. Then they would exercise good judgment. The film of the altercation can at least show evidence of reasonableness, or not. Senate Bill 411 State Senator Ricardo Lara was the author of Senate Bill 411. And he says he believes it is essential for it to be clear in a statute. Now an average person can lawfully record a police officer without concern of arrest or intimidated. Of course, knowing cops as I understand them, this will not stop cameras from being stomped. Also, other methods will likely get employed to "get control." Lara said that having the code in the state's law helps cell phone evidence keep people safe. The new law comes after an early August incident. In that case, a Rohnert Park officer pointed a gun at a man who recorded the event on his cell phone. The officer is now facing a lawsuit. One of the cell phone videos recorded made national headlines. This was the Eric Garner choking video. Lara said everyone has cell phones today. And now we may find them a useful way to “deter violence.” The Garner video is one of the examples. And mobile videos can provide evidence in police wrongdoing investigations. The Senator did make it clear that the bill does not in any way give citizens the legal right to interfere with police. But this is already what the law was before the bill passing. Bill 411 Support Sen. Lara had support from the ACLU for the bill. Lara said in a written statement the law would help to ensure every citizen can exercise their Constitutional right. Making audio or video recordings or taking photos is a protected right. The letter goes on to say it is a “clear constitutional right to photograph and record the police in the performance of their duties.” The letter ends by stating the bill ensures the public’s right to gather information about their officials. Also, it shows abuses. And it may affect the functioning of government in a more general sense. We applaud the ACLU's efforts at getting the state to notify its agencies. But we question the need to spend so much time and energy on this bill. Passing a law to mandate what already is the law, is not an efficient administration of justice. Also, it sheds light on why jury nullification is making more and more sense. More Reading: https://www.dmlp.org/legal-guide/recording-police-officers-and-public-officials Recording Police Officers and Public Officials | Digital Media Law Project https://www.aclunc.org/our-work/know-your-rights/your-rights-and-police ACLU of Northern California Title: Know Your Rights: Police Interactions
Jan 4, 2019
Ehline Law Fights Taser Ban in New York
Fighting for Civil Rights Nationwide Attorney Michael Ehline. The Motorcycle Rider's friend. Ehline Law Firm attorney Alan Beck fought alongside Stephen Stamboulieh of the Firearms Policy Coalition on a major court case in New York. The right to self-defense suit was filed by Middleburgh Mayor Matthew Avitabile, who desires to own a taser for personal use. New York is one of three states that ban the possession of such a device. The case is off to a strong start. Beck is a Marine Corps veteran who took the lead on a number of other Second Amendment causes. He and Stamboulieh fought similar cases in New Jersey and Hawaii. The court case's first hearing took place on March 24th took place in United States District Court for the Northern District of New York before Judge David Hurd. The hearing in Utica involved both the Plaintiffs as well as the New York State Attorney General's office. At the preliminary injunction hearing, Beck presented a number of cases of court precedent regarding an individual's right to bear arms. Surprisingly, the State of New York declined to fight the motion on procedural grounds, instead insisting that its ban is constitutional. Following the Caetano v. Massachusetts decision last year, that position appears increasingly tenuous. New York sought a motion to dismiss. Further Review Hurd adjourned the court for further review. His law clerk expects an initial ruling in the next several weeks. This case has implications beyond the individual's right to own a taser. The suit may strike down New York's current law as a violation of citizens to defend themselves in a lawful manner. More information is expected. We will report on it as it does. Our firm stands for your rights to self-defense and to bear arms. The Ehline Law Firm Personal Injury Attorneys, APLC keeps our readers informed.
Jan 4, 2019
Is Jury Nullification Kosher in a Personal Injury Case?
Personal Injury Attorney - Michael Ehline Understanding the Law First of all, at the outset, this post is definitely not legal advice. I am not trying to teach people how to get out of jury duty or stay on a jury for that matter. I am merely pointing out my opinions and conclusions. But for one, I do believe it's kosher for a jury to determine the law and the facts ultimately. But I also think a court's job is vital. However, its job is merely guiding the arbiters of justice (the jury.) But my opinions should in no way guide you in your decision to understand the law and mean to keep it well. So What is Jury Nullification? This definition is a great question and a great place to start. Why? Because this terminology can mean many things to many people, it must be more thoroughly understood. So, it encompasses many items, as will be explained. In a nutshell, jury nullification is defined as a juror's right and duty to ignore or not enforce what it considers to be an unjust law. But it also deals with a juror's role in finding a court's misapplication of a just law. Some have called this a juror's "pardoning power." It is typically used in criminal matters. For example, jury nullification may happen when a jury is convinced beyond a reasonable doubt of the guilt of a defendant in a criminal case. But still, the jury votes to acquit him or her of the charges anyways despite the evidence. (Recent examples may include the O.J. Simpson criminal case.) But then again, under this procedure, the jury could try and vote to convict a person even though it's not sure of guilt or innocence. But at least in that last example, if the evidence fails to support a conviction, judges may still direct a verdict of acquittal. Can a Jury Nullify a Personal Injury Case? But if a jury returns an acquittal, then generally, it's game over. The Court nor the prosecutor is allowed to appeal a criminal acquittal. But what about personal injury matters? Can a jury nullify a civil case also? It appears that jury nullification may also occur in questions of personal injury law. For example, when the verdict is "generally a finding of liability or lack of accountability (rather than a finding of guilty or not guilty)." (See Lars Noah, "Civil Jury Nullification," Iowa Law Review 86 (2001): 1601.). Many examples exist of jury nullification in both civil and criminal matters. Furthermore, the Seventh Amendment protects and recognizes the pre-existing Natural Right of the Jury. "...the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, then according to the rules of the common law." It appears well settled that jury nullification is a right and even a duty. After all, a juror must be the "conscience of the community." (Source.) Why Nullify in a Personal Injury Case? First of all, it is easy to foresee why a juror would want to nullify a bad law in a civil or a criminal case. A personal injury case is unique in that a jury could hate the defendant and the plaintiff. A nullifying jury could use all manner of strategies to derail the economic recovery. But the jury could still simultaneously dislike the defendant. Get it? What are Some Major Reasons Why Nullification Can Become a Duty in a Civil or Criminal Matter? After the passage of the German Race laws, Nazis targeted Jews with jail and wealth confiscation. Look at the ways the German Jews had their private property confiscated in pre-World War II Germany. Antisemitism and the persecution of Jews represented a central tenet of Nazi ideology. In their 25-point Party Program, published in 1920, Nazi party members publicly declared their intention to segregate Jews from "Aryan" society and to abrogate Jews' political, legal, and civil rights. (Source.) Had I been a juror, I indeed would not have convicted a Jew who had failed to yield their property or civil rights over to the state. Would you have done so? What if criminal law was passed called the "White Privilege Law" that whites had to give up their property to pay reparations to the descendants of African slaves? Would you convict a white person for refusing to turn over their property? Laws are often passed that discriminate against or help people, for example. Politically driven excuses are used to suppose how people gained their fortunes. Then a law is passed to tax them higher or lower depending on party affiliation. The masses easily may erode the rights of the gifted individual. Personal injury lawyers have received favor in the tax code, for example. Hollywood has received exemptions from California's gun laws. So film studios can even use and own fully automatic weapons. But ordinary citizens may not. And it makes sense. After all, trial lawyers are enormous DC lobbyists. The studios also control the news and what is seen and heard thereon. But so is the insurance lobby and so forth. So all sides seem to benefit based upon who donates to who's re-election bid. Is there a Fundamental Unfairness to Plaintiffs in Personal Injury Cases? In personal injury cases, some argue that insurance companies get a pass from the courts and legislature. The jury instructions make clear that no one can mention insurance or how much coverage is at issue. So we all know that California law requires us to carry mandatory minimum liability insurance. But we are not allowed to consider whether or not there is insurance coverage in a motor vehicle accident case. So if a defendant appears to be poor, a jury could be swayed into finding against the plaintiff. Or, for example, they could award the aggrieved party peanuts. How is this fair? It's great for the insurance company and shareholders. But it can kill the plaintiff's case. So, for example, if I were on a jury, I would demand to know how much insurance coverage is at issue. Sure, you don't want to place the defendant in the poor house, but you also want to award the plaintiff for pain, suffering, particular and general damages. You want to do justice. I, for one, would want to do my independent investigation if the Court refused to disclose the existence or nonexistence of the insurance policy in question. So what does this have to do with nullification? Well, it doesn't. Jury nullification does not give the juror a right to violate his oath under penalty of perjury. What does this mean to you? First of all, you have to level with the Court before being sworn in. You cannot agree to a thing that goes against your conscience, can you? Jury Nullification May Not Be Used if a Juror Has Sworn an Oath Not to Use it? Can I be Punished for Nullifying a Verdict? The only example I could find that allowed a judge or prosecutor to take vengeance on a juror potentially is the Laura Kriho matter. In that case, Kriho was the sole juror refusing to convict based upon the interests of justice. It was a drug-related case called People v. Brannon. The situs was in Colorado. Juror Kriho was eventually charged with three counts of contempt of Court. A whistle-blowing fellow juror on the panel sent a secret communication to the Gilpin County District Court Trial Judge, Kenneth Barnhill. Said communication alleged that Kriho complained about the unfair potential jail time of the accused while deliberating. So the sell-out juror asked the Court to bring in an alternate juror. Since the Court had previously dismissed the alternates, the Court called for a mistrial instead. But the trial court was not done with Kriho. Not even close. So apparently, a message had to be sent to the jury pool. What Were The Contempt Charges in Kriho? Kriho was eventually prosecuted for: Not volunteering information never sought during voir dire (e.g., that Kriho silently reserved her right to nullify an unjust law), Telling fellow jurors that her knowledge that potential punishment meant a conviction was likely wrongful, and Attempting to convince other jurors to cancel a charge that carried a criminal sentence against the defendant. Many courts use this case as a tool to convince jurors they may only decide matters of fact. But an educated jurist who knows the situation would know that the second and third charges were ultimately withdrawn. In other words, the Court did not rule on nullification! An there was no punishment, either. The Remaining Sole Charge Was Reversed on Appeal in Kriho. Amazingly, Kriho was convicted for failing to volunteer info EVEN THOUGH SHE WAS NEVER ASKED to do so. (Clearly, that jury followed the law as stated by the Court.). In any event, that sole conviction on that sole remaining count against Kriho was reversed in 1999 on appeal! The appeals court rightly thought it absurd that a jury would have to read minds and volunteer info. Accordingly, FIJA reported: “You have to go back to [the trial of William Penn in] 1670 to find a case in which the judge tried to punish jurors for returning a verdict he didn’t like.” Since the Kriho case, I can find just one case in which a juror faced a serious possibility of being punished for her verdict—the 2005 prosecution of juror Carol Asher. In Asher, unlike Kriho there was a split jury. Hence, there was a mistrial as in Kriho. So the jury foreman ratted to the judge about Asher's comments during deliberations. Also, unlike Kriho, three other jurors believed the defendant was not guilty. But only Asher alone was punished for felony perjury. In that case, Asher was at risk for a 14-year prison term for "lying." But Asher never made it to trial. Instead, an evidentiary hearing was held in 2006. And there, the entire case went away. Apparently, Asher learned the same lesson as Kriho. Standing up for your rights means legal expenses and being placed in jeopardy of prison. This truth is the clear message these two jurors received. The Kleinman Case Next, we have the Kleinman case. The criminally accused there was the defendant Now in Kleinman, a trial court told a jury it would violate the law if it ignored the trial court's interpretation of the law. But the left-leaning 9th Circuit even agreed this went too far, stating: "The court's statement that the jury 'would violate [its] oath and the law if [it] willfully brought a verdict contrary to the law given to [it] in this case,' may imply punishment for nullification, because 'violate your oath and the law,' coming from the court in a criminal trial, could be understood as warning of a possible violation with associated sanctions. Additionally, the statement that '[t]here is no such thing as valid jury nullification' could reasonably be understood as telling jurors that they do not have the power to nullify, and so it would be a useless exercise. Judges tell juries: follow the law. But the statement there is no valid jury nullification misstates the role of nullification. This is because an acquittal is valid, even if it resulted from nullification." [Emphasis.] But this was irrelevant, harmless error to misadvise a jury as to their rights. As expected, the 9th rejected Kleinman's argument that the erroneous jury instruction required reversal of his conviction. See the BELOW ERRONEOUS Jury INSTRUCTION. "It is not fundamentally unfair for a defendant to be tried by a jury that is not fully informed of the power to nullify," the court said, "or even that is stripped of the power to nullify, because there is no right to nullification. Although a jury should not be led to believe that jury nullification will result in punishment or an invalid acquittal, the court's misstatement by implication does not rise to the level of denial of Kleinman's due process rights." Wow. Did you see that? The courts are saying, yes, we have a right to nullify. But a trial court can issue a false statement of law to a jury that nullification is illegal, and this will not require a reversal of a conviction. In fact, we are all presumed to know the law. What If I Want to Remain on a Jury and Exercise Right of Jury Nullification? For example, automatic exclusion can occur if you are a member of the ACLU, Libertarian Party, any number of marijuana rights organizations. So, for example, an NRA member may get tossed in a gun possession case. And here would be an example of a wrongful death personal injury case. An anti-gun jury may decide even though it was self-defense, that defendant must still pay for merely owning a gun. Must I Volunteer I Support Jury Nullification? It depends. If you are an officer of the Court who has written many treatises and articles in support of this right, it will make sense that you do not withhold this fact from the Court. Don't fail to volunteer information, lol. In the same way, a citizen who has touched on these issues online or on social sites may also not want to withhold this information. Often, jurors are subject to investigation by all sides, and the Court. Yes, respond to the questions in a yes, no, I don't know type of way. Less is more. The Court has many people to interview. Move along. So long as you have no religious views or philosophy that prevents you from doing justice, you should be ok to serve. If you agree that everyone deserves a fair trial regardless of the law, you should be ok to serve the panel. Also, are you capable of convicting even if you disagree with a bad law? Yes, you can be capable of that. But courts consider each separately. After this, it makes sense in silence about your opinions on nullification. But What About Promises Under Oath? Making a promise under oath means you must keep it. But what if you are forced to swear an oath to ONLY judge the facts? What if that juror swears to let the Court decipher the law. If a juror says he "can" uphold a law he disagrees with, he is not lying. But if he promises only to judge the facts, when he intends to be the judge of both, he could be a perjurer. Did I Swear Not To Exercise My Right Not To Decide Issues of Law? If you got on a Los Angeles jury, you may or may not have surrendered your right to be the conscience of the community when you swore to allow the Court to be the sole decider of the law. And nullifying unconscionable laws could expose you to prosecution. It is not because they exercised their rights per se. It is because they swore an oath not to use their right. Is that crazy or what? As touched upon above, failure of the use of jury nullification was the International Court's basis convicting accused Nazis of war crimes after WWII. The reasoning of the Court was that civilians and soldiers alike have to ignore, interpret, and in fact, fight against an unjust law. Hence, low and high-level soldiers, despite swearing an oath, could not argue they were just "following orders" when they killed innocent civilians and prisoners of war, etc. (Learn more.) What Are Some Other Examples of Why You Would Use Nullification in a Personal Injury Case? Medical Malpractice (Read more.). Comparative Negligence Issues (Jurors may or may not apportion fault, for example. Or they may apportion greater blame if they think it unjust a plaintiff gets too much money.). Reserved. There are so many times nullification could be appropriate, I invite you to comment below. What Are Some Other Examples of Just Use of Jury Nullification? Statutory Rape Laws (An underaged female sexually assaults an adult male, and he faces rape charges = unjust to apply the law (See eg, State v. Morse 281 Minn. 378, 161 N.W. 2d 699 (1968).). Gun Laws (A man in California arrested for having a cartridge magazine in his pistol with more than ten rounds in the magazine = unjust as a magazine is a primary component of a firearm. And the number of rounds in a magazine directly affects a citizen's ability to defend home and hearth.). Race Laws (Fredrick Douglas and other white abolitionists were fierce supporters of jury nullification and an armed citizenry.). Euthanasia Laws (Where a terminally ill patient wanted a mercy killing, and prosecutors have no choice but to bring charges against the doctor.) Marijuana Laws. Prohibition Laws. What are Some More Famous Jury Nullification Examples and Explanations? In "flagrant" cases, according to the Court, "the jury has always exercised the pardoning power, notwithstanding the law, which is their actual prerogative." (Local 36 of Int' l Fishermen & Allied Workers of America v. United States, 177 F.2d 320 (9th Cir. 1949).) Lysander Spooner, author of Trial by Jury 1852, pointed out that "governments cannot decide the law or exercise authority over jurors (the People) for such would be absolute government, absolute despotism." But in conclusion, the jury has to know the law and mean to keep it well. The rights you fail to claim become waived. And falling into the trap of swearing to not exercise the right places a juror at risk not for exercising the right, but instead, the juror is at risk for perjury. Solutions are to avoid poisoning the other jurors. It appears that it is unwise to tip-off fellow jurors as to their rights. Do Not Surrender Oaths. So the smart move is to request a sidebar, approach when directed, and instruct the Court that you plan to exercise the right to decide the law and the facts as justice dictates. But what if a judge asks: "You'll follow the law as I instruct it, right?" What if you feel intimidated? Well, you are merely informing the Court you cannot take an oath that would surrender a right as you know it. A smart judge may present a hypothetical and ask you if you would follow the law under that example. I, for one, would say that it offers an incomplete hypothetical and would preserve my right to decide the law and the facts as I see fit. The bottom line is that it remains the right of all free men and women to decide the law and the facts in both personal injury and criminal matters. Our public servants are no smarter than any of us. Many of them are too smart for their good. You, the citizen, are the last line in defense of freedom.
Jan 3, 2019
Personal Injuries Increased By California Gun Control Laws
Michael Ehline, personal injury lawyer. I am attorney Michael Ehline. I am a former U.S. Marine. And I hold the distinction of being one of the few personal injury attorneys in CA who support the Second Amendment. But I support the right of a peaceable, Freeman to possess the same small arms as any public servant. And these rights are derived from Natural Law and Natural Rights, not man-made law. Before I digress let's get into the meat of the matter. The purpose of this article is to educate people on California's new gun laws and their increasing personal injuries to innocent people. Then we will delve into how these laws increase the chance of serious personal injuries. The New 1989 Gun Laws Leading to Present Confiscation Laws of 2016. When I was younger, I had AKMS 47 clones, and an AR15 HBar, among others. These are center-fire, semi-automatic rifles. One looks like a Soviet style AK47, and the other looks like an M16 (Armalite 15). The difference is that these civilian versions are only capable of firing one round per trigger squeeze. That is why they are classified as "semi-automatic." I cannot stress enough that these look like military-style assault rifles, but they are not really military "assault rifles." I will explain more as you read on. Unfortunately, the Crips and Bloods gang members started shooting bystanders in drug crimes with these weapons back in the mid-'80s. In any event, the Hollywood left picked up on this as an opportunity to restrict law abiding gun owner's rights. Letting no crisis go to waste, they claimed that because many of the gang banger's guns looked military they must be banned. Rather than blame crime, they blamed guns. Democrats seized upon this issue. But they did not have a super-majority to outright ban semi-automatics that looked scary to them at that time. But they later worked with other California Republican turncoats to pass the Roberti-Roos Assault Weapons Control Act of 1989. Looking Tough Backfired on the AR15 and Any Military Looking Rifle. Many law enforcement personnel will tell you that gangsters loved these AKMS 47 clone rifles because they looked tough. And this holds today in the same way gangsters love Pitbulls and fighting dogs. So anything threatening looking, including tattoos, is hip in that subset. In any event, do-gooders in the California State Legislature decided that rifles that looked like "tough" military rifles needed to be illegal. So they passed a law to ban certain manufacturers from selling rifles with the "features" of a military-style rifle. In contrast to the pro-self-defense lobby, they grabbed on to their magazine capacity as the basis for banning. The "Assault Weapons Ban" Was the First Step In Banning An Entire Class of Commonly Used Firearms Under Color of Law. The argument was that if it is capable of holding more than ten (10) rounds, it should be illegal. But the rub was, only IF it looks like a military rifle. Of course, the smart folks knew that was only a pre text to banning all semi autos. Of course, the left laughed and claimed that wasn't true. But we knew that was a lie. In any event, during this time I became an expert with the AR15 and AKMS 47 and mastered both before joining the Marines. By the way, they each came with "standard capacity" magazines. This capacity means that the bullet holder that goes into the rifle can hold 30 or more bullets. These bullets are also called "rounds." California Progressives Gave New Definitions to Pre-existing Terms. Later, the California legislature changed the names of certain rifles and components to make them sound scary to uneducated voters. Large Capacity Magazine. There was no such definition as "large capacity" magazine until the Democrat-run California State Legislature changed the name in the late '80s. It went from standard capacity magazine, to "large capacity" magazine. Then only those gun owners who had them could keep them till they passed away. This law was called a "grandfather clause." So there was no outright ban. And even though the magazine is a component of the rifle, liberal justices said from now on; free men could only own 10 round magazines. Think about King George for a second (if you even know who he was). Once the law was passed, the most liberal court in the land, the 9th Circuit, upheld this ban as lawful. Assault Rifle. Any rifle that was black, with a flash hider, a fold-able stock, and a grip and fore-grip was now evil. It was now called an assault rifle. The so-called "assault rifle" has zero functional difference from any other semi-automatic rifle. So it was given an Orwellian name and banned. So this brings us to the real purpose of the California democrat platform. The left wants an outright ban for anyone other than the government or politicians, to own or possess of a whole class of weapons. So naturally, they are using the so-called assault weapon as the first step. You see, now they know what we knew back in 1989. The function and not the "look" of the rifle is what matters. Liberals want Australian, and UK style gun laws. So they want gun laws such as those that exist in a commonwealth we fought a bloody revolution to free ourselves from. In the UK, rifles must be bolt action, single shot. In Australia, pretty much only criminals and police own guns now. "Magazines" and The Grandfather Clause Farce. At the time of the passage of these new Draconian laws, there were not enough Democrats in CA to outright ban everything. So the non super-majority Democrats chose the death of a thousand cuts. Most people knew this was a scam and warned that these were the first steps towards outright confiscation. The whole point of the right to keep and bear arms is to prevent all enemies, both foreign and domestic from taking and keeping power. Notifying the very people who could eventually do that with a gun registry flies in the face of the intent of bearing arms. (aka to prevent government overreach.) In any event, we see with the latest legislation, that our grandfathered magazines are now illegal. After all, the Democrats now have a Super-majority, and they control the California courts. The New Bullet Button Ban and the "Features" Test Although Colt AR15's and certain brands of AKMS 47 clones were banned, unless registered, not all similar looking rifles were on the ban list. This problem is why the legislature came up with the silly "features" test. So if your rifle had a bayonet lug, a thumb magazine release, or a pistol grip, it was banned. In that case, to be legal, the features had to be blocked or removed. Also, it could not have a removable magazine unless a tool had to be used to remove it. The idea was to make it near impossible for a shooter to be able to reload a rifle after firing 10 rounds, for defense or offensive reasons. So unless they had a special tool to remove the fixed magazine, it was illegal. Otherwise, shooters had to separate the upper and lower receiver. But this risked an injury by jamming rounds into the fixed mag through the piping hot lower receiver with their fingers. And no such tool existed for what was and is the most common rifle in the U.S., the AR15. It did not exist for any gun. Why? Because it interfered with the intended function of the gun. Impossible to Clear Stovepipes and Jams With California Fixed Mag Law. The fixed magazine law also meant that shooters could no longer clear a hot, or stove-piped round. So now people faced their rifles blowing up in their faces. Hot Round Jam. A hot round jam is one where an un-fired cartridge gets stuck in the magazine or barrel. If it remains there, it can cook off other rounds and cause an internal explosion in the chamber. In the Marines, we are taught to clear this by pulling the charging handle back and releasing the magazine so it will not explode. Stovepipe. A stove-piped round is one that hangs out of the ejection port. Sometimes pulling the charging handle won't release it. Plus, during this period, it could be cooking off in your rifle's chamber as a misfire. If it does, it can ignite the entire, loaded, fixed magazine. So that means it could also blow up in your face. These gun laws made it impossible to clear these various chamber jams unless someone could engineer a solution, and fast. So basically, these gun laws were irrational and placed the lives and eyes of shooters at grave risk. After all, they were written by people who have zero concept of what they are legislating. SOLUTION - Enter the Bullet Button. But some concerned citizens realized that once the features were removed or concealed, the gun could function as it was intended safely. Enter Featureless Rifles. Many people build and modify their own weapons, as any law abiding Freeman should. So there are all kinds of AR15 clones, for example. Faced with the amendments regarding "featureless rifles" someone got smart. They realized if you wrap the pistol grip with a piece of plastic, and replace the flash hider with a compensator, you could continue to drop your 30 round mags with your thumb as intended. So that is what a lot of guys do now. And that is what I do too. The idea is that you can still use the thumb mag release. Going After Ammunition To Further Hinder a Unalienable Right. Few Americans even realize it was King George going after the colonist's "powder houses" that led in large part to the American Revolution. But with progressives in control of "education" from k-12 in California that should come as no surprise. I do not doubt that modern day progressives would have been "fence riders" during the Revolution. Why do I say this? Simple, a bloody revolution was sparked over a far off ruler telling us how and when we could own ammunition. Now, milennials are begging their leaders to take away those same rights. So the argument is that we need to control how much ammo a person has so people will feel safe. Most of all, now we need to pay a fee, get a license, etc. A total sham. A great way to raise more money to pay pensions for people like Gavin Newsom right? In any event, we will discuss all these new laws, compliance and workarounds later on. But I just wanted to lay a foundation for you to understand better.
Mar 23, 2018
All About California Marijuana Stores and Smoking Lounges
A Not Harmless Drug? As a personal injury attorney in California, I have seen many many more car, motorcycle, and truck accidents involving alleged marijuana usage since medical Marijuana became readily available. I have also seen other issues, including employment law, where an employer won't hire a prospect due to testing positive for T.H.C. Even stranger, some cities like Santa Monica have "smoke-free" beaches and streets, etc. So we will have to assume the new C.A. law carves out a "designated area" to smoke weed, but we don't know for sure. In any event, it's a $250 fine, so maybe use edibles in Santa Monica? But all of this can raise civil rights, state, local, federal law, and other issues. The full rule of law over California marijuana is in flux. Just the other day, I saw here that we have a new weed breathalyzer that detects T.H.C. But unlike alcohol use, inebriation standards for drivers remains unsettled. For example, .08 is the legally intoxicated limit in California in many states. But for Marijuana, whether someone is legally intoxicated is still up in the air. The craziest thing of all is that like C.A. gun laws, there is no uniformity from city to city. Because of this, we see many "illegal" operations pop up and get shut down continuously. The Cat and Mouse Game of Fed v. State? It is almost like a veritable cat and mouse game. Either the feds shut you down and confiscate the goods, or the city does. The legal shops are busy lobbying to get in with the city, while the Highwaymen are cleaning up with minimal risk. With that as our basis of understanding, I wanted to understand C.A. marijuana law and began doing research. Below is everything I learned about California marijuana laws. Included in my study is information on owning, starting and operating a marijuana distribution type of organization.* * CAVEAT: There are many laws, both state and federal, regarding the use, sale, growing, and harvesting of Marijuana. Before Marijuana becoming legal for recreational use in California, it was only allowed with a medical doctor's "recommendation." Doctors are still rarely able to legally prescribe Marijuana, as it is still illegal under federal law. In any event, modernly in California, dispensaries fall into two classes. 1. Medical collectives; 2. Recreational sales. Most of all, state, local, and federal laws all come into play, making these operations very complicated. Of particular interest, the risks of being charged, jailed, and property forfeiture for a landlord or tenant are always a possibility. Even if the feds leave your operations alone, individual more conservative counties still refuse to issue business licenses or land use variances to accommodate marijuana type operations. So there is also a risk of being charged civilly and criminally by local authorities, even though the State of California has made it legal to buy, sell, and consume Marijuana-based upon statute and judge-made law. So if you seek to establish any type of California marijuana operation, it is essential to speak to a lawyer first. In any event, this outline below should help people understand some of the problems people face presently. More Information: As a California marijuana defense lawyer, I wanted to share with you what I have learned about the medical and nonmedical dispensation of Marijuana below. How Did We Get Here? What is the Nexus of California's Medical Marijuana Laws? First of all, when I was growing up, Marijuana was considered to be a "gateway" drug. In other words, p automatically led to Cocaine and Heroin use. Whether or not that theory has become debunked, it remains irrelevant at this point. In fact, at light speed, California legislated various laws regarding the medical use, possession, cultivation, and distribution of Medical Marijuana. So for the last 15 or so years, "Medical" Marijuana became legal. The underpinnings are below. 1996 - What is the Prop 215 Compassionate Use Act? So when I was just a young lad, in 1996, Proposition 215 was passed. It was known as the Compassionate Use Act. It focused on exempting marijuana-using patients, as well as their recommending physicians/caregivers from California State's criminal statutory scheme. (Source.) Who is "seriously ill" under California's Prop 215? California says you are qualified as a marijuana patient if you suffer from: AIDS, arthritic episodes, anorexia, certain types of cancer, chronic pain syndromes, muscle and other types of spasms, glaucoma, migraines. But it also includes a catch-all of sorts dealing with "any other illness for which marijuana provides relief." 2004 - Senate Bill 420 - The Medical Marijuana Program Act. Of course, this wasn't enough for the "Big Brother" State of California. The legislature quickly realized that it could track people under the guise of compassionate use. So naturally, it wanted to create a database of drug users and providers. So it passed SB 420, aka the Medical Marijuana Program Act. This law created a statewide identification card system for caregivers and "qualified patients." These cards are valid for one year. As discussed above, cardholders can buy more, grow more, and get more potent strains of the drugs and their extracts. But alas, as also discussed, the feds can use this information to steal away your God-granted rights. What Happened on January 1, 2018, that Changed Marijuana Consumption Laws in the Golden State? In California, our previously licensed medical cannabis dispensaries received a bit of a gift in many ways. Although the state made recreational Marijuana use legal, January 1, 2018, left medical dispensaries untouched by draconian taxes associated with purchasing recreational Marijuana. As usual, California overreached and taxed recreational Marijuana so high, that most users are only getting a doctor's recommendation. California will include a 15% levy on all cannabis sales in the state, including medical pot products, starting in January. Meanwhile, local governments are also adding taxes for sellers and growers that could result in a 70% increase in the price of a small bag of good quality marijuana in parts of the state. Between state and local taxes, some buyers will see an effective tax as high as 45% on adult-use cannabis in California. Proponents of legalization have long pointed to the collection of state and local taxes on marijuana sales as a big benefit. (Source.) In fact, the remarkable thing about remaining a medical marijuana patient is that you can get much lower prices for concentrates, kief, vapes, and flowers. So it appears that intelligent consumers will go the doctor route to save money. What are Some Other Downsides and Upsides to Medical Marijuana Purchasers Post 2018? Creating a Record that Can Be Used Against You The major downside of medical use recommendations is that the user is creating a record that is filed with the store itself. If the feds raid the store, the user could face federal charges. Only recently, Chong of Cheech and Chong did several years in federal prison, for example, for possessing and selling marijuana paraphernalia alone. So imagine the havoc a ne'er-do-well federal prosecutor could cause with a marijuana user "hit list" like that. Imagine being a celebrity. It could potentially ruin your career and land you in federal prison. In any event, right now, it's like the wild wild west for new C.A. M.J. operations. What I mean is that over the next 18 or so months, the patchwork of new rules and regulations are just kicking in. GUN CONFISCATION - Federal Law Prohibits Marijuana? - So Beware Gun Owners!!! On the other end of the coin, a nonmedical dispensary would likely have no paper trail, as a purchase would be more like buying booze. This is very important considering that: Federal law (18 U.S.C. § 922[g][1-9]) prohibits specific individuals from possessing firearms, ammunition, or explosives. The penalty for violating this law is ten years imprisonment and a $250,000 fine. Further, 18 U.S.C. 3565(b)(2) (probation) and 3583(g)(2) (supervised release) makes it mandatory for the Court to revoke supervision for possession of a firearm. Specifically, 18 U.S.C. § 922(g)(1-9) prohibits the following from "...possessing, shipping/transporting, or receiving any firearm or ammunition: (1) a person convicted of a crime punishable by imprisonment exceeding one year; (2) a person who is a fugitive from justice; (3) a person who is an unlawful user of or who is addicted to a controlled substance;..." [Emphasis.] What is The United States Controlled Substances Act? Sadly, the feds have an outdated law that has zero rational bases in its present form. Denying all medical reasoning and science, elected officials decided long ago that Marijuana was evil and had zero medicinal value. This theory was codified as the United States "Controlled Substances Act." Under this Draconian legislative enactment, Marijuana is a Schedule I drug. This means it: Allegedly comes with a significant risk for abuse with, Zero medically acceptable medical use in the United States. Whether or not a person is addicted is a question for an expert. But the fact you are an unlawful user is enough. The bottom line is that anyone who smokes pot risks surrendering their unalienable rights to peaceably keep and bear arms, as well as their physical freedom of ingress and egress peaceably. What About the 10th Amendment? The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Since medicine is not mentioned in the Constitution, many, including California, argue that medication is "reserved to the States respectively, or to the people." And therefore out of the jurisdiction of Federal law. The Federal Supremacy Act, with the help of judges, enables the feds to trump the given rights of States. But this is in direct violation of the 10th Amendment, according to many constitutionalists. To many jurists, this is pure common sense. But alas, courts have, in many ways, rewritten the Constitution. So the issue here is whether Marijuana is a federally controlled substance, and it is. Since it is controlled, the federal government, and not the state, decide what drugs are legal and not legal. And the feds treat M.J. as if it has zero medical uses, despite the fact the F.D.A. approves medical marijuana derivatives for patients. And just like liquor stores, local counties and cities could limit or refuse altogether to license a recreational marijuana operation. So for now, at least, medical dispensaries previously licensed are somewhat protected from legally operating recreational stores under state law, but not federal law. Federal Law So as discussed, concerning medical marijuana collectives, co-operatives, and dispensaries, these are illegal federally. In other words, just because things are hunk-dory with the state, you would be violating federal drug laws. Plus, there are criminal and civil fines associated with federal violations. Also, federal agents have the right to seize property, such as the collective's inventory. Additionally, landlords could lose their buildings, for example, in some extreme cases, not thought out ahead. During the Obama years, marijuana law enforcement was lax. But under a more conservative administration, we see more implementation occurring. The old policy was to leave collectives alone that complied with state laws regarding Marijuana. What the future holds is uncertain. But we do know that the focus must be on removing Marijuana from the federal scheme as an illegal drug. Otherwise, collectives, as well as recreational facilities, risk being labeled as a criminal enterprise. What are some advantages to getting your Doctor's Medical Marijuana Recommendation renewed over Pure Recreational Use? Although cannabis is now legal for adults 21 and over recreationally, it makes sense to spend $50 to $130 bucks for a doctor's recommendation to use Marijuana. This is because: some people are sick, and more stores are available now. a medical recommendation makes it easier to use the hundreds of existing collectives since legalization it MAY help avoid some taxes and local fees/ordinances at a collective there are options for more potent medicine plus, you can grow more plants as a patient. More "Legal" Stores Coming Soon? January 1, 2018, likely does not affect 90% of medical marijuana collectives. So for them, the standard remains the same. But if they are also going retail, there will be higher prices associated with a retail recreational license. Few, if any, recreational over 21 stores will be open for business. After all, this is still a new endeavor for municipalities and other cities. Hence, exceptionally few adult-use stores will be open right away, selling commercial cannabis. Some sources indicate that only a few will even be up and running at all in the entire Golden State. There are also some issues related to California's anti-smoking laws. You see, Proposition 64 allows smoking lounges. One problem I noticed is whether or not these will be an open door, or closed-door facilities with an outdoor patio, for example. Lounge Capital? So assuming state and local anti-smoking ordinances do not torpedo some of the smoking lounge concepts, we will likely be seeing places to smoke blunts popping up everywhere. Look for Venice Beach, CA, to be the smoking lounge capital of America. In the meantime, medical M.J. cardholders can still smoke at designated medical marijuana facilities. Do Medical Dispensaries Retain a Considerable Tax Advantage over Statutory Retail Stores? As noted above, medical patients will still save on state and local sales taxes in some circumstances. CAVEAT: A paper recommendation from a physician is not sufficient to qualify for this sales tax exemption. (Source.) The California Medical Marijuana Identification Card presently exempts qualified patients from paying the state sales tax altogether. Also, it protects those who possess up to eight ounces of the botanical herb. This is seven ounces more than the over 21 recreational limits. Medical patients who have a state medical marijuana ID card will be exempt from the state sales tax immediately. If you spend more than $100 per month on medicine, it should pay you to get a state ID card. Under Prop 64, the card fees are capped at $100, and $50 for Medi-Cal patients. (Source.) Other Differences Between a Doctors "Recommendation" and a "California Medical Marijuana Identification Card." As noted, the only way for consumers around the new sales tax is a bonafide California Medical Marijuana Identification Card issued by their county health departments. Only they will get the sales tax break. Contrast this with a medical recommendation, which does not offset the new tax. Assuming you are a qualified patient, you get all this for only a $100 annual fee. But if you are a low-income resident, you can pay $50. So this applies to people getting Medi-Cal health care. But it's free for indigent county health care recipients. In this case, the county health departments will process the applications. And of course, the County collects the fees. Card Holders Can Buy More Product? For some time now, card-holding patients could grow at least six plants for personal consumption. Although local laws are requiring medical marijuana patients to identify themselves, the trade-off is that they can use and possess large amounts of product. So that way they can buy and transport more than the recreational limit. In any event, patients are authorized to hold eight grams of concentrate or an ounce of cannabis flowers. But be warned, domiciled growers are still subject to county and city codes and ordinances. Hence, Code Enforcement officers could be seeing an uptick in business. And since Uber and Lyft are helping reduce D.U.I. Arrests, cities, and counties need new forms of revenue. BE WARNED growers and M.J. users. Card Holders Still Get the Stronger Extracts and Products (the "Topicals" and "Edibles" Question) Now there exist two different cannabis regulatory models. These involve the sale of topicals and edibles. Now, topicals remain more powerful medically at 2000 mg of T.H.C. Contrast this with 1000 mg of T.H.C. that will be available recreationally. After July 1, 2018, the grace period that lets edibles have more than 100 mg of T.H.C. ends. After that, edibles medically and for recreational use cannot have more than 100 mg of T.H.C. that must get divided into 10 mg per part servings. What are My Anticipated Startup Costs to Open a California Marijuana Medical Dispensary? Mainly, the larger the operation, the more costly. But obviously, you'll likely have more luck in an unincorporated area than a city like Newport Beach, for example. Ok, so now comes the fun part. How does one go about opening a marijuana dispensary? Is it even affordable or smart consider the feds can raid you at any time? So no matter what, it's going to cost you now or later. My research from interviewing collectives and store personnel shows a vast array of different prices and costs depending mainly upon the GEO location of the distribution outlet. For purposes of this discussion, we will address both the legal and the illegal route. Going lawful means dispensary costs of $20 the grand U.S. to upwards of a half-million dollars. Mainly, the larger the operation, the more costly. But obviously, you'll likely have more luck in an unincorporated area than a city like Newport Beach, for example. Most of this is politics. But one thing politicians, conservative or leftist, can't resist is lobbyist re-election money. So look for lobbyists gaining a foothold in the more traditional communities of Orange County, for example. This means you need to cut checks to both parties if you want a favorable city council vote. I am just real here. So What are Some of the Fixed Costs?: Like the state, municipal, city, and county fees. Assuming there are licenses for lease, each city and province will likely have a statutory scheme codified in advance. Look for these licenses to be enforced by a code enforcement officer in a lottery type of situation. Probably, this will be similar to beer and wine and hard alcohol permits. Costs of building out the location. Some lucky tenants can get tenant improvement monies for signing a long-term lease. (T.I. Money) Costs of cultivation. This includes germination, quality seeds, growing, topping, enriching, and ultimately harvesting and drying and distributing. Costs of legal counsel and paralegals, law clerks to deal with all the problems inevitably to arise. So What Exactly is a California Medical Marijuana Dispensary? Believe it or not, California has not codified what a medical dispensary is or isn't. In fact, the legislature never explicitly defined what a dispensary or collective is. Additionally, M.M.P. is the only thing that guides us at all. In fact, the California Health and Safety Code 11362.775 is the only thing we have to really guide us as lawyers. This section asks caregivers and to "associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes." Below are some of the many rules and regulations to do that legally: Incorporate. Collectives or so-called "cooperatives" technically are not supposed to be profit based. So to do it right, you must structure a non-profit corporation for the benefit of the collective members. So here there are two options before us. You can file articles of incorporation under the California Corporations or under the California Food and Agricultural Code. Nonprofits mean just that. You cannot make a profit. Management fees are typically supposed to be how the owners, growers, and cultivators are paid. 2. Get Properly Licensed and Administered. First of all, despite what many sea lawyers will tell you, medical marijuana is taxable. This means collectives are supposed to collect local and state sales and other applicable taxes. This means you must obtain a "Seller's Permit." (Learn more here). But remember as discussed above, each city will be different. So even if you are in compliance with State law, you may still need a business license, for example. Sometimes you may need to request a zoning variance. This is another reason why lobbying will become more important for future stores. Administration is so so important. This is because there are a veritable plethora of regulations under California law that must be complied with. Otherwise, there is no way to demonstrate you are in compliance with the regulatory scheme. The key is to show you are only dealing out marijuana for purely medicinal reasons. What are Some Ways You Can Show You are Complying With State Law as a Collective? Make Sure it's "Members Only": Buying and selling to or from non members is strictly prohibited. Also, under California law, only lawful patients and medical providers may grow marijuana. In fact, the collective is a way to bring the medicine to market and to facilitate transactions between members. This is probably why they are supposed to be designated as non profit corporations. Sign in Sheets: Most hospitals have sign in sheets with waivers and all sorts of requirements to prove you are who you say you are. So with a new patient, you need to make sure they are vetted as a holder of a legitimate and UP TO Date recommendation or Medical Marijuana ID Card. Make certain you contact the recommending physician to verify he or she is legitimate. Keep Adequate Records: Make sure and obtain copies of ID's, Medical ID cards, recommendations and anything else you need to prove these buyers are medical patients. Obviously, you should have each employee sign a declaration of confidentiality, and that binds them not to engage in the illegal sale or distribution of marijuana. Anyone who breaks the rules is out! Cover your butt and track coming and outgoing marijuana. Document same. Be smart. Don't Fall Into the Money Trap: This is where we see a lot of illegal operations making a killing. It fact, under the law a collective must either provide free marijuana or distribute it in exchange for services akin to a commune. The issue here for most operation is that the fees charged must be reasonably calculated to cover just the operating expenses such as overhead, etc.the , or any combination of these situations. Understanding Risk Try and Reach out to Law Enforcement and Hire Security Personnel: The smart move for a legal growing and distribution operation is to get to know the local mayor/police. It also makes sense to get top-notch security guards. After all, it is reasonably foreseeable that an unsavory character could potentially rob a collective. This would leave all those patients exposed to gunfire, or a knife attack potentially. Try and get in tight with neighborhood watch and establish your collective as "above board." Hire an Injury Lawyer for Injury Risk Management: Believe it or not, one of the biggest risks for a high traffic and busy place like this is employment and customer personal injury claims. First of all, many insurers are not interested in insuring businesses that violate federal law. Second, you need liability insurance in order to protect the corporation and its officers. After all, one bad slip and fall, or sexual harassment lawsuit could tank your entire operation and even chase away potential investors. Many cities and counties will require you to show you have an insurance bond at a minimum. Of course, hiring an injury attorney to walk the location and help you write policies and systems will go a long way towards mitigating risks. An example would be writing up a procedure for weekly tailgate safety meetings. If you would like to speak to an accident lawyer in Los Angeles, Michael Ehline is available for an appointment at (213) 596-9642. How Do I Start Up A Recreational "Over 21" Marijuana Store? So how exactly do you start up an over 21 adult-use store? Well, this all centers around the "Adult Use" License. Many California dispensaries actually are applying for these so they can also sell to recreational use consumers. Plus, they will still need to deal with all the local "red tape." So it looks like the medical stores have the most distance out of the gate. Insofar as startups go, it's the same as setting up a medical dispensary, minus some restrictions regarding medical patients. So far, since January, only West Hollywood had stores licensed to sell to the over 21 crowds with valid identification. Think about that. So Weho nailed it. The bottom line is once you find a city to set up shop, you still need to get legal to be for profit. New for-profit law beginning 2018 Cannabis businesses that have already received any required licenses or permits from their local jurisdiction may apply for state licenses to operate a for-profit from various agencies. Businesses operating under these state licenses can choose any form of solid business structure for their business. They can work on a for-profit or not-for-profit basis. They are not eligible for California franchise and income tax exemption, as they do not meet the requirements as described in Internal Revenue Code Section 501(c) or California Revenue and Taxation Code (R&TC) Section 23701. (Source.) As emphasized above by the author, over 21 stores may operate as a for-profit if they so choose. As a lawyer, I can say that non-profits require a lot more work to run and administer. Especially with medicinal use issues at play. So look for tax-starved cities to liberally issue the various local licenses to make this happen first. With the addition of smoking parlors, there very well could be a renaissance of sorts of the more progressive, yet disenfranchised cities. What About Smoking Lounges? As discussed, California and almost every city have anti-smoking ordinances. So with the legality of Marijuana, people need a place to smoke without fear of fine or arrest by local officials. This means cities will likely issue permits to those lucky few businesses who can navigate all the startup red tape or those with existing locations. Part of Proposition 64 included a ban on all public marijuana consumption. Also, private owners retain their rights to allow Marijuana on their property or not. But I would look at California civil rights laws and medical rights acts as a method to steer landlords towards compassionate use on their properties. Below are a few of the smoking lounge rules: First of all, California does not require a state license to open a lounge unless you are also selling marijuana products. So if, for example, you opened one next to a collective, you're in business. Also, the general public cannot see you smoking. So forget about trying to set up an outdoor smoking patio unless it gets hidden from passersby. One method of doing this could be tinted glass two-way mirrors, or merely a large fence. Ultimately the city code enforcement people will have to sign off on this stuff. Also, sorry bars, the state won't let you drink and smoke at the same time! So a smoking lounge in a bar, bad, next to a bar, maybe ok. And last but not least, rooms cannot do business within 600 feet of any school. Can Ehline Law Firm Help me Find a Dispensary or Retail Outlet that is Up and Running for a Quick Purchase? MAYBE! There are a variety of companies that will build a "turn-key" dispensary for you. Some of these are at pre-existing locations and doing well. So this means that all you have to do is "turn the key" to open the door, and the establishment is entirely ready for you to run. The medical stores will now sell good stuff at a premium. Why not? They can tap into the commercial market as well. But lawyers like me can help with the transactions. And we can teach accident avoidance and defense against negligence and employment law claims. You can find entrepreneurs who broker deals like this if you know who to trust. They typically promise to: file all necessary paperwork on your behalf and make sure that you comply with all laws. The cost for these medical marijuana dispensaries before 2018 ranged from $100,000 - $200,000. Seek An Experienced Attorney But before you purchase this type of dispensary, you should consult with your own California marijuana attorney to ensure the accuracy of the company's information. After all, why are they selling? Do they have any strikes against their license? This can always present issues. What if the store is already under federal investigation, or was the building just raided by law enforcement? What are you buying? Debt? Or is it turn-key? In other words, are the sellers savory or unsavory in their efforts to sell? A lawyer can delve into the minutia and help negotiate a contract and escrow that protects you. But in the end, it's caveat emptor. (buyer beware.) Discussed above were the rules and regulations for medical and for-profit marijuana stores in California. Also discussed were the risks versus the rewards of delving into the California marijuana scene. In conclusion, buying, selling, growing, or distributing Marijuana in California is a task for only the bravest of people. An excellent lawyer and a little bit of common sense can help mitigate some of these risks. I hope you enjoyed this piece, and I will update it as more information comes to fruition.
Oct 30, 2017
Grace v. DC Making it Happen for Second Amendment Civil Rights?
A Win for the Second Amendment Gun Free Zone Sign Many free thinking injury attorneys know that peaceable, law-abiding citizens can avoid serious injury or death by use of defensive arms. Gun rights activists won a significant day in court in September 2017. A three-judge panel on the US Court of Appeals struck down a DC provision limiting pistol ownership. The District is now a "shall issue" territory. The case centered around a DC requirement forcing applicants to bring forth a "good" or "proper" reason to receive a concealed carry permit. Effectively, this made it very difficult for the average person to own and carry such a firearm. It appears the issue is done and over with. WTOP reported that the District of Columbia would not challenge the ruling in the Supreme Court. For the time being, the decision is a firm notch in the win column. The District is now a "shall issue" area, instead of being more restrictive. Perhaps New York or California is next. The National Rifle Association was thrilled with the result. They stated, "At the same time, it’s important to celebrate those law-abiding Americans are now closer than they have been in nearly half a century to fully exercise their firearms freedom's within our nation’s capital. That is real progress." Such a fantastic feat took several years and legal expertise to win. It also shows the ability of an army of Davids to win against the big government Goliath. Where do things go from here? Additionally, does that mean DC will pass other anti-gun laws? Of course, all of these are on the table. Furthermore, many pro-gun activists are fighting for the right to bear arms in all 50 states and DC. Their rugged determination protected a fundamental human right from extinction. We hope that it will be a precedent for other locations and states to follow. For more info on the Second Amendment and recent court cases, keep it dialed here. Our team is on top of the situation. Let us know if you have any thoughts.
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