Showing posts with label constitutional law. Show all posts
Showing posts with label constitutional law. Show all posts

Friday, October 14, 2011

First Let’s Kill All The Lawyers-Not- Part Two- George Clooney’ “Michael Clayton”-A Film Review

Click on the headline to link to a Wikipedia entry for the film Michael Clayton.

DVD Review

Michael Clayton, starring George Clooney, Sidney Pollack, Tilda Swinton, Warner Brothers, 2007

Everybody, everybody probably ever since if not earlier that Richard III in Shakespeares’ play, I think, uttered the notion that lawyers should be done away with first to cleanse the kingdom of evil spirits has hated lawyers. Well every lawyer except your own lawyer, of course. Not the one who got you out of that DUI jam that time you had a little too much, or out from under that drug bust where you were just sitting in that living room, nothing more. Maybe, moving up the chain, when that nasty accident happened and you bailed out with some friendly legal help. And even further up the chain when you, big-time impersonal corporation you, got out from under that very nasty and costly class-action suit stemming from the very real hazardous (cancerous chemical) to somebody, many somebodys, health that you injured, grievously. And the difference between the low-end save your ass from jail example and the high-end keep your company solvent? Well the fixer man, of course. The fixer lawyer man here at the high end which drives this story line. You under no circumstances, no circumstances at all, want to tick off ( I am being nice here) the fixer man. And especially not a very vengeful and a street smart Michael Clayton, as played by hard-guy George Clooney. Wrong, always wrong.

Up in the rarefied air of the legal counsel's office of a large corporation (U-North) they (or rather she, Karen Crowder, played by Tilda Swinton) didn’t get that little nugget of wisdom straight (she must have missed that class in law school) and well, frankly, panicked once it became clear that the ace litigator of the company had gone off the deep-end and was ready to “spill the beans” in favor of the other side-the plaintiffs. Michael Clayton, brought in for just such “fixing,” got his hind legs up in the air when his services were not appreciated (and said ace litigator got killed). But here is where it all breaks down. See a fixer man is just that, he fixes things. He gets mucho dough for doing these kinds of things. He can be “bought off,” or neutralized. But not when you panic and try to kill him. Not Michael Clayton, hell, not a guy or gal two days out of law school. So let this be a cautionary tale. Please.

Sunday, October 09, 2011

As The Class-War Heats Up-From The Occupy Boston Website-For The FrontLine Fighters Of The Occupation Movement- Legal FAQ-Know Your Rights: Demonstrations and Protests

Markin comment:

Some of this relates specifically to Massachusetts law but most of it is useful for other jurisdictions as well, particularly regarding First Amendment rights.

Legal FAQ-Know Your Rights: Demonstrations and Protests

General guidelines

Can my free speech be restricted because of what I say — even if it is controversial?

No. The First Amendment prohibits restrictions based on the content of speech.However, this does not mean that the Constitution completely protects all typesof free speech activity in every circumstance. Police and government officials areallowed to place certain non-discriminatory and narrowly drawn “time, place andmanner” restrictions on the exercise of First Amendment rights.

Where can I engage in free speech activity?

Generally, all types of expression are constitutionally protected in traditional“public forums” such as streets, sidewalks and parks. In addition, your speechactivity may be permitted to take place at other public locations which the government has opened up to similar speech activities, such as the plazas in front of government buildings.

What about free speech activity on private property?

The general rule is that free speech activity cannot take place on private property absent the consent of the property owner. There may be exceptions in Massachusetts for large shopping malls, but these generally apply only to
obtaining signatures relating to elections.

Do I need a permit before I engage in free speech activity?

Not usually. However, certain types of events require permits. Generally, these events are:

1) a march or parade that does not stay on the sidewalk and other events thatrequire blocking traffic or street closure;
2) a large rally requiring the use of sound amplifying devices; or
3) a rally at certain designated parks or plazas, such as the Boston Common.

Many permit procedures require that the application be filed several weeks in advance of the event. However, the First Amendment prohibits such an advance notice requirement from being used to prevent rallies or demonstrations that are rapid responses to unforeseeable and recent events. Also, many permit ordinances give a lot of discretion to the police or city officials to impose conditions on the event, such as the route of a march or the sound levels of amplification equipment. Such restrictions may violate the First Amendment if they are unnecessary for traffic control or public safety, or if they interfere significantly with effective communication with the intended audience. A permit cannot be denied because the event is controversial or will express unpopular views.

Specific problems

If organizers have not obtained a permit, where can a march take place?
If marchers stay on the sidewalks and obey traffic and pedestrian signals, their activity is constitutionally protected even without a permit. Marchers may be required to allow enough space on the sidewalk for normal pedestrian traffic and may not maliciously obstruct or detain passers-by.

May I distribute leaflets and other literature on public sidewalks?

Yes. You may approach pedestrians on public sidewalks with leaflets,
newspapers, petitions and solicitations for donations without a permit. Tablesmay also be set up on sidewalks for these purposes if sufficient room is left for pedestrians to pass. These types of free speech activities are legal as long as entrances to buildings are not blocked and passers-by are not physically and maliciously detained. However, a permit may be required to set up a table.

Do I have a right to picket on public sidewalks?

Yes, and this is also an activity for which a permit is not required. However, picketing must be done in an orderly, non-disruptive fashion so that pedestrians can pass by and entrances to buildings are not blocked.

Can government impose a financial charge on exercising free speech

Some local governments have required a fee as a condition of exercising free
speech rights, such as application fees, security deposits for clean-up, or
charges to cover overtime police costs. Charges that cover actual administrative costs have been permitted by some courts. However, if the costs are greater because an event is controversial (or a hostile crowd is expected) – such as requiring a large insurance policy – then the courts will not permit it. Also,regulations with financial requirements should include a waiver for groups that cannot afford the charge, so that even grassroots organizations can exercise their free speech rights. Therefore, a group without significant financial resources should not be prevented from engaging in a march simply because it cannotafford the charges the City would like to impose.

Do counter-demonstrators have free speech rights?
Although counter-demonstrators should not be allowed to physically disrupt
the event they are protesting, they do have the right to be present and to voicetheir displeasure. Police are permitted to keep two antagonistic groups separated but should allow them to be within the general vicinity of one another.

Does it matter if other speech activities have taken place at the same
location in the past?

Yes. The government cannot discriminate against activities because of the
controversial content of the message. Thus, if you can show that similar events to yours have been permitted in the past (such as a Veterans or Memorial Day parade), then that is an indication that the government is involved in selective enforcement if they are not granting you a permit.

What other types of free speech activity are constitutionally protected?

The First Amendment covers all forms of communication including music,
theater, film and dance. The Constitution also protects actions that symbolically express a viewpoint. Examples of these symbolic forms of speech include wearing masks and costumes or holding a candlelight vigil. However, symbolic acts and civil disobedience that involve illegal conduct may be outside the realm of constitutional protections and can sometimes lead to arrest and conviction.Therefore, while sitting in a road may be expressing a political opinion, the act of blocking traffic may lead to criminal punishment.

What should I do if my rights are being violated by a police officer?

It rarely does any good to argue with a street patrol officer. Ask to talk to a supervisor and explain your position to him or her. Point out that you are not disrupting anyone else’s activity and that your actions are protected by the First Amendment. If you do not obey an officer, you might be arrested and taken from the scene. You should not be convicted if a court concludes that your First Amendment rights have been violated.

A wallet-sized card containing more practical suggestions about encounters with police officers is available in English and Spanish from the ACLU of
Massachusetts. The ACLU has recently published a “Know Your Rights”
pamphlet that explains your rights if you are stopped by the police, the FBI, the INS or the Customs Service. It is available in English, Arabic, Spanish, Farsi, Hindi, Urdu, and Punjab. You can obtain copies of the pamphlet by calling the ACLU of Massachusetts at 617-482-3170.

Photos and Videos: Taking photographs and video of things that are plainly visible in public spaces is a constitutional right — and that includes the outside of federal buildings, as well as transportation facilities, and police and other government officials carrying out their duties.

However, there is a widespread, continuing pattern of law enforcement officers ordering people to stop taking photographs or video in public places, and harassing, detaining and arresting those who fail to comply… Know your rights. Look at what the ACLU has. Click for more.

Dealing with Law Enforcement: US Day of Rage posted the contents of a PDF from Midnight Special Law Collective. Highlights include information on how to handle yourself under questioning, Miranda Rights, and search procedures.

There are three basic types of encounters with the police: Conversation, Detention, and Arrest.

Conversation: When the cops are trying to get information, but don’t have enough evidence to detain or arrest you, they’ll try to weasel some information out of you. They may call this a “casual encounter” or a “friendly conversation”. If you talk to them, you may give them the information they need to arrest you or your friends. In most situations, it’s better and safer not to talk to cops.

Detention: Police can detain you only if they have reasonable suspicion (see below) that you are involved in a crime. Detention means that, though you aren’t arrested, you can’t leave. Detention is supposed to last a short time and they aren’t supposed to move you. During detention, the police can pat you down and go into your bag to make sure you don’t have any weapons. They aren’t supposed to go into your pockets unless they feel a weapon.

If the police are asking questions, ask if you are being detained. If not, leave and say nothing else to them. If you are being detained, you may want to ask why. Then you should say the Magic Words: “I am going to remain silent. I want a lawyer” and nothing else.

A detention can easily turn into arrest. If the police are detaining you and they get information that you are involved in a crime, they will arrest you, even if it has nothing to do with your detention. For example, if someone gets pulled over for speeding (detained) and the cop sees drugs in the car, the cops will arrest her for possession of the drugs even though it has nothing to do with her getting pulled over. Cops have two reasons to detain you: 1) they are writing you a citation (a traffic ticket, for example), or 2) they want to arrest you but they don’t have enough information yet to do so.

Arrest: Police can arrest you only if they have probable cause (see below) that you are involved in a crime. When you are arrested, the cops can search you to the skin and go through you car and any belongings. By law, an officer strip searching you must be the same gender as you.
If the police come to your door with an arrest warrant, go outside and lock the door behind you. Cops are allowed to search any room you go into, so don’t go back into the house for any reason. If they have an arrest warrant, hiding won’t help because they are allowed to force their way in if they know you are there. It’s usually better to just go with them without giving them an opportunity to search.


Definitions of:

1. Assault An assault is carried out by a threat of bodily harm coupled with an apparent, present ability to cause the harm. It is both a crime and a tort and, therefore, may result in either criminal or civil liability. Generally, the common law definition is the same in criminal and Tort Law. There is, however, an additional Criminal Law category of assault consisting of an attempted but unsuccessful Battery.

Statutory definitions of assault in the various jurisdictions throughout the United States are not substantially different from the common-law definition.

Generally, the essential elements of assault consist of an act intended to cause an apprehension of harmful or offensive contact that causes apprehension of such contact in the victim.

The act required for an assault must be overt. Although words alone are insufficient, they might create an assault when coupled with some action that indicates the ability to carry out the threat. A mere threat to harm is not an assault; however, a threat combined with a raised fist might be sufficient if it causes a reasonable apprehension of harm in the victim.

2. Battery Battery is concerned with the right to have one’s body left alone by others. Battery is both a tort and a crime. Its essential element, harmful or offensive contact, is the same in both areas of the law. The main distinction between the two categories lies in the penalty imposed. A defendant sued for a tort is civilly liable to the plaintiff for damages. The punishment for criminal battery is a fine, imprisonment, or both. Usually battery is prosecuted as a crime only in cases involving serious harm to the victim.

Mass General Law on Assault & Battery

Section 13A. (a) Whoever commits an assault or an assault and battery upon another shall be punished by imprisonment for not more than 2 1/2 years in a house of correction or by a fine of not more than $1,000.

A summons may be issued instead of a warrant for the arrest of any person upon a complaint for a violation of any provision of this subsection if in the judgment of the court or justice receiving the complaint there is reason to believe that he will appear upon a summons.

(b) Whoever commits an assault or an assault and battery:

(i) upon another and by such assault and battery causes serious bodily injury;

(ii) upon another who is pregnant at the time of such assault and battery, knowing or having reason to know that the person is pregnant; or

(iii) upon another who he knows has an outstanding temporary or permanent vacate, restraining or no contact order or judgment issued pursuant to section 18, section 34B or 34C of chapter 208, section 32 of chapter 209, section 3, 4 or 5 of chapter 209A, or section 15 or 20 of chapter 209C, in effect against him at the time of such assault or assault and battery; shall be punished by imprisonment in the state prison for not more than 5 years or in the house of correction for not more than 2 1/2 years, or by a fine of not more than $5,000, or by both such fine and imprisonment.

(c) For the purposes of this section, “serious bodily injury” shall mean bodily injury that results in a permanent disfigurement, loss or impairment of a bodily function, limb or organ, or a substantial risk of death.
Also, it cannot be overstated how important it is for each individual to be aware of their 5th Amendment rights. For those who will be caught up in an arrest situation, it is very important that 5th Amendment rights are exercised. Every defense attorney will advise you this.

Friday, May 16, 2008

A Legal Victory for Same Sex Marriage in California


Sometimes democratic rights victories come from the streets. Sometimes they come from the picket line. And sometimes, although rarely, they come from .... the courts. Well, these days we cannot be choosy, as we will take our victories, large and small, any way we can get them. That is the import of the 4-3 decision by the California Supreme Court on May 15, 2008 that declares discrimination against same-sex marriage as unconstitutional as a matter of state law. We should cheer, at least for the moment, as an important state court (one that others look to) joins Massachusetts on the East Coast in affirming this elementary democratic right. Of course the blow back has already started, as it appears that an anti-same sex constitutional amendment will be on the state ballot in November trying to deny that right. That is where those above-mentioned streets come into play again. More later.