Monday, March 19, 2018

That's NOT pocket change

Little piggies is good to eat
Do you know how much it costs to have a case be appealed in a federal court of appeal?  

In accordance with 28 U.S.C. § 1913, that cost is $500.  Not a lot but when you don't have it, it's a whole lot of what you don't have.

Now, with all that it costs to take a case to appeal, imagine, if you will, you are sitting in your house, door closed, and the police knock on your front door.  Little, piggie, little piggie, let me come in they shout.  

You say, "No dice, go away."  Your roommate, who is outside the house, tells the police that they can go in.  

You, again, insist that no, the police can't come in.  Police ignore you, they break a window to reach the inside lock, open the door, taser you to the floor and start to search for contraband inside your house.

Sound like fun?  Well, Ryan Bonivert didn't and after the police did all that to him, he filed a case against the City of Clarkston, the County of Asotin and the police who broke down his locked door.  

The case turned on whether the statement by the roommate that the police could enter was sufficient to overrule the objection of the other resident.  The lower court said yes and granted the defendant's summary judgement motion.

Upset that he lost, Mr. Bonivert decided to appeal his case (Ryan Bonivert v. City of Clarkston, Case Number: 15-35292) and filed a 42 USC § 1983 (civil rights action) based on the fact that the police violated his 4th Amendment rights (what with the tasering and breaking of his front door, etc). 

What is particularly annoying about this case is that it took a whole bunch of money for someone to write:
An open door says, 'come in,' the poet Carl Sandburg once wrote.  If a door is open and you want it open, why shut it?  The corollary, of course, is that a locked door says "stay out," and a shut door certainly does not say, "come in"...we hold [therefore] that the officers [were] not entitled to qualified immunity...Simply put, a reasonable officer would have understood that no means no.
WOW, is that deep, or what?  No means no.  If you tell the police NOT to come into your house and you're not a parroled felon OR there are no weapons present OR there is no apparent emergency to require a warrantless entry, then stay the #$@#$!@$ out of my house!  

Of course, it took how many thousands of dollars and months/years to reach that decision?!

Sad that the trial court isn't able to grasp that when someone says STAY OUT OF MY HOUSE, that that does not mean police should be permitted to do whatever they want.  

I mean, are these trial court judges prohibited from reading established case law?  Do they not have clerks telling them what the law is?  Why in blazes did this case have to be taken up on appeal?!?

I suspect the moral to this story is keep your doors locked and when the big, bad wolf comes knocking on your door, stand your ground and don't open it for anything!

Monday, March 12, 2018

Accept the consequences

Choices bring consequences
Years ago, I worked as a law clerk.  One day I interviewed a client who had, for the last 10 years, been residing in prison for a double homicide.  

What was interesting is that when I had parked my car and started walking toward the front gate, I met a number of parents of incarcerated people.  

Every parent swore that their kid was innocent and had been set-up. Inside the prison, every single prisoner claimed they were innocent and had been set-up. 

Our client had the same story.  Innocent and set-up.  Really? You were just in the wrong place at the wrong time and you are innocent?  Smoking gun found two feet away with your fingerprints and gun powder residue on your hands!?  Still innocent?!? 

Sad that everyone has the same story.  I didn't do it - it was the other guy (that they never found or caught).  The police set me up.  It couldn't be that they actually did the crime.

Maybe the nature of the crime was so heinous that they can't accept the fact that they could have done it or maybe they think they're sooooo very clever that the concept of their slipping up suggests that it must have been a set-up.  Always the other guy.

Such was the story I got the other day from a young-ish couple.  Seems couple had been arrested for shoplifting under California Penal Code Section 484. Specifically, store security caught them walking out of the store with hundreds of dollars of merchandise.  

Seems that couple were not actually going to steal the merchandise. No, they were going to try out the products at home and bring them back when they were done like they'd seen people do on YouTube.  Who cares that they had been arrested for shoplifting multiple times in the past - this time was different.

Uh huh.  Funny but the police didn't buy they're story. The judge didn't believe them either at their arraignment. In fact, no one believed them and they were at their wits end.  Would no one believe them? They pleaded with me and asked me for forgiveness. 

As my dad would have said, "Humph, tra la!"

First, I'm not a priest - really not the guy to whom you should confess your sins.  Second, I don't really care what you did. I'm not here to judge or prosecute you (and don't have the power to commute sentences).  

What I can do is suggest legal resources you can use to help you mount a defense. And so, with the power of an omnipotent law Librarian, I called forth Grabthar's hammer and the suns of Worvan and suggested couple take a look at:
Yep, sure a lot of people out there who think the world is out to get them.  Problem is, if you're going to engage in activities that put you on the government's radar, odds are you're going to get got.  

When that happens, just know that your local county law library is open and ready to help you free your self (or mind, as the case may be).

Monday, March 5, 2018

Word of the Month for March 2018: Mispleading

Mistakes show you're human
If there is one thing that most everyone can agree, mistakes really slow things down.  In law and legal stuff, mistakes can really damage a person's calm.  Take court forms like the Petition for Divorce package.  It has about 967 boxes, lines, and places to screw it up (and yes, I counted them all).  

Soooooo, if you mess up and either check a box that shouldn't be checked or fail to check a box that should have been checked, the court clerk will mark the mistake and send it back to you.  Of course, what they won't tell you is that if you made any more mistakes in the form - just that you made that one. 

Now, if there is another mistake, and you don't have an attorney to help tell you what you did wrong, you will probably correct the mistake, send the form back only to have the form sent back to you with the next mistake identified so that you can re-submit that form over and over and over.  It's maddening, I tell you!

This brings us to our word of the month:  MISPLEADING. According to Black's Law Dictionary, MISPLEADING means:
Pleading incorrectly.  A party who realizes that its pleading is incorrect can usu. amend the pleading, as a matter of right, within a certain period, and can thereafter amend with the court's permission.
Note that line: "a party who realizes..."  Thing is, in the heat of passion (or in this case, the heat of filing a pleading), most people aren't all that clear-headed and are wont to make lots and lots of mistakes.  Take, for example the lady who was standing in front of me not 10 minutes ago.

Seems lady had filed a complaint for Negligence against the guy that rear-ended her a year prior.  Seems Lady had filled out the Complaint incorrectly (i.e. she made a mistake). Seems the other party caught the mistake, filed a demurrer and asked the court to dismiss the complaint.  Seems the court took pity on Lady and granted the demurrer with leave to amend her complaint.

Nice judge.  

Lady is now in front of me asking how to correct her mistake. I suggest she take a look at California Forms of Pleading and Practice (Lexis; Vol. 3, Chp. 21 - Amended & Supplemental Pleading) and off she runs to correct her mistake.  Law and the practice of it is like that - you make mistakes and, as long as they are not really big ones, you correct yourself and move on.  

Good thing there are county law libraries around to help you when you mess up.  Sure is.  When next you mess up, we'll be around to help you get up and going.

Monday, February 26, 2018

Sneaky buggers

My two cents
Today's news brings us the story of deceit and skulduggery. Seems Assemblyman Jim Frazier (a democrat representing the area of Oakley) is proposing a bill (AB 2353) in the California Assembly that would cut the limitation of actions for construction defect claims from 10 years to 5 years.

See, there's this building called the Millennium Tower which is located in San Francisco. It is a 58-story luxury residential building (i.e. condos) and it is sinking. Not only has it sunk 17 inches since its completion in 2008, but it's now leaning 14 inches towards a nearby skyscraper. The kicker is that the leaning and sinking weren't realized until year 7 (which, under Politician Frazier's bill, would have precluded any lawsuits against the developers).

So, how might this apply to Joe Consumer (you know, people not living in the Millennium Tower)?  Say you bought a new home in California.  Let's say that 5 years and 1 day after you bought your house, you noticed a crack in the side of your house.  Upon closer inspection, you find that your house is settling because the developer failed to property grade the land under which your house is sitting resulting in your house starting to sink - causing cracks to appear in your house.

You remember that 5 years and 1 day after you bought your house part? Well, under Politician Frazier's bill, you would be precluded from suing the developer(s). Yep, you would be stuck with having to pay for repairs to your house even though they were all the developers fault. Sound fair to you?

Then we come to the crux of the discussion.  See, the bill is being "sponsored" by an unnamed "nonprofit" group.  A member of another "nonprofit" group, Robert Abodaca (vice-president and co-founder of California Community Builders AND the guy who "asked" Politician Frazier to submit the bill to the Assembly), noted that:
Homeownership is one of the best ways of closing the wealth gap for people of color.  Changing the statute of limitations is going to substantially reduce the insurance premiums for developers who choose to build condominiums for sale, rather than apartments for rent.
I'm not a person of color (unless you count sunburn as a color).  But whenever I see someone bring race into a discussion that has NOTHING to do with race, I get skeptical real fast (and you should, too).

What this all sounds like is a couple of "nonprofits" looking to build a bunch of shoddy, low-income housing/condos, sell them real fast to a bunch of unsuspecting minority groups (hence the "people of color" quip) and then step back when they start falling apart.  Of course, they would be protected by Politician Frazier who was bought off to submit a bill to protect his special interest "nonprofits" buddies.

OK, I realize this isn't so much a post about law and legal research (well, except the part about the limitation of actions).  But, when I'm reading stuff and I see obvious slants against people or when self-righteous/hypocritical politicians (and that covers democrats, republicans and independents) try to push a bill that favoring a bunch of rich, fat cats,...well, I've gotta throw my hat in the ring and spew my two cents.

So, there you have it.  My two cents.

Monday, February 19, 2018

Sometimes You're the Nut

Cotton Candy
The problem with being an omnipotent law Librarian is that after a while of hitting on all 16 cylinders, pulling answers out of the sky like they were cotton candy, you start to feel all powerful, thinking you know everything - until you skip a beat and you can't find anything.  Then you start to question the sanity of the universe.

Such was my life the other day.  Seems this Guy came into my law library.  Seems Guy had just been in family court where his ex-wife had filed a motion to legally change his son's name to her new flame's name.  Judge told Guy she'd deny the motion if he could find something to prevent the change.  Guy was under the gun and came to me - the omnipotent Librarian - to help him in his hour of need. 

I looked everywhere and couldn't find anything for him.  I mean, EVERYWHERE!  Guy flips out claiming that everyone told him that I was THE go to Librarian when you can't find something and that I failed him.

Huh.  I felt bad for the guy and went back to my office to lick my wounds. 

Three weeks later, I'm helping a random attorney.  Seems Attorney was looking for questions to grill an expert witness in a child custody case.  I'm looking everywhere to help Attorney and in my search, I stumble upon AmJur Trials, Vol. 22 (Child Custody Litigation).  In the supplement, I found Section 137.5 - Name changes.  

Waaaaaaaaaait a minute!  Wasn't I looking for something about name changes a while back?!  Turns out on page 297 in the Vol. 22 Supplement is a #%@#^!@$!#%^ section on just what I was looking for for Guy!

Turns out there are eleven (11) cases from all around the USA that deal with the name change of a child in custody hearings.  JUST WHAT GUY WAS LOOKING FOR!  Good thing I had the good sense to get Guy's email and without hesitation, I send off a copy of the entire section. 

Whoo-wee baby, I was back in the game pulling answers out of the sky like they were cotton candy.  Life's just like that - sometimes you're the nutcracker, sometimes the nut.

Maybe your local county law Librarian can find you answers on the spot - sometimes it takes a while.  Regardless of what quarter in the game we are playing, what you need to know is that your local county law Librarian always plays to win.  So, when next you need help (and you know you will, eventually), just know that we'll be here to help you get back in the game, too!