The Second Amendment’s Arms get Beefier

Woo-hoo! Mr. Blasty gets to stay at home with me!

In a 5-4 decision issued today by Justice Samuel Alito in McDonald v. Chicago, the U.S. Supreme Court signaled the strengthening of the Second Amendment’s right to keep and bear arms with respect to a state law out of Illinois.  For the AP, Mark Sherman writes:

WASHINGTON — The Supreme Court held today that the Constitution’s Second Amendment restrains government’s ability to significantly limit “the right to keep and bear arms,” advancing a recent trend by the John Roberts-led bench to embrace gun rights.

By a narrow, 5-4 vote, the justices also signaled, however, that some limitations on the right could survive legal challenges.

Writing for the court in a case involving restrictive laws in Chicago and one of its suburbs, Justice Samuel Alito said that the Second Amendment right “applies equally to the federal government and the states.”

The court was split along familiar ideological lines, with five conservative-moderate justices in favor of gun rights and four liberals opposed. Chief Justice Roberts voted with the majority.

Two years ago, the court declared that the Second Amendment protects an individual’s right to possess guns, at least for purposes of self-defense in the home.

That ruling applied only to federal laws. It struck down a ban on handguns and a trigger lock requirement for other guns in the District of Columbia, a federal city with a unique legal standing. At the same time, the court was careful not to cast doubt on other regulations of firearms here.

Gun rights proponents almost immediately filed a federal lawsuit challenging gun control laws in Chicago and its suburb of Oak Park, Ill., where handguns have been banned for nearly 30 years. The Brady Center to Prevent Gun Violence says those laws appear to be the last two remaining outright bans.

Lower federal courts upheld the two laws, noting that judges on those benches were bound by Supreme Court precedent and that it would be up to the high court justices to ultimately rule on the true reach of the Second Amendment.

The Supreme Court already has said that most of the guarantees in the Bill of Rights serve as a check on state and local, as well as federal, laws.

Monday’s decision did not explicitly strike down the Chicago area laws, ordering a federal appeals court to reconsider its ruling. But it left little doubt that they would eventually fall.

Still, Alito noted that the declaration that the Second Amendment is fully binding on states and cities “limits (but by no means eliminates) their ability to devise solutions to social problems that suit local needs and values.”

The Opinion effectively strikes down Chicago’s hand gun ban, however the case was remanded back to the Illinois’ federal court for further proceedings.  The five Justices concurring in the Opinion are Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas in addition to Alito.  The dissenting Justices were John Paul Stevens, Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor.  You can read their bios here.

If you have some time on your hands, you can read the Court’s entire 214 page opinion here.  The Court’s opinion is actually 51 pages, with the rest dedicated to a concurring opinion by Scalia, Thomas’ opinion concurring in part,  and dissenting opinions by Stevens and Breyer.

What do you think?  Should states be able to ban handgun possession by private citizens, or does the Second Amendment guarantee our right to keep guns?

Speeding tickets based on a guess are OK, Ohio Supreme Court says

If I guess 5 MPH over, you get a green frog. If I'm under, you get a $100 fine.

In a 5-1 decision, the Ohio Supreme Court upheld a conviction on a speeding ticket solely based on the arresting officer’s guess as to how fast the car was moving.  No radar.  No lasers.  Just a cop that said, “Man, it looks like he’s going 79 miles per hour in this 60 mile per hour zone.”  That’s right, 79.  Not 75 and certainly not 80.  Exactly 79.

Officer Christopher R. Santimarino testified that he had worked traffic enforcement since 1995 and received specialized training to visually estimate the speed of a vehicle.  This training means that Santimarino was able to correctly guess the speed of a vehicle within 4 miles per hour of its actual speed. It must have been plain luck that Santimarino did not write the driver a ticket for going 64 in a 60.

The real kick in this case is that Santimarino claimed that his radar gun clocked the driver at 82 miles per hour – but he could not produce a copy of his radar training certificate on the day of trial so that evidence was thrown out.  But the trial court allowed his guess to be considered as evidence and convicted the driver based on that alone.

From an academic standpoint, I understand what Justice Maureen O’Connor is saying in her opinion.  She’s saying that a properly trained police officer’s account of the event is admissible evidence so the jury should be allowed to hear the officer’s guess.  Maybe that is admissible persuasive evidence, but maybe a guess is not “sufficient evidence” to convict.

Ohio appellate courts were split on this “guess evidence.”  Six appellate districts have held that a guess is good enough and three districts have held that a guess is not enough to overcome the presumption of innocence and the burden of proof beyond a reasonable doubt for conviction.

The theory here is that machines, like radar guns, are exacting instruments, but humans can make mistakes – even the highly trained ones.  Just ask Major League umpire Jim Joyce who mistakenly called a Cleveland Indians runner safe at first base robbing the Detroit Tigers’ Armanda Galarraga of a perfect game this season.  Joyce has officiated major league baseball games for 21 years including All-Star games, division championships, league championships, and World Series games.  The Indians runner was out by a mile and Joyce called him safe based solely on his visual observation and standing just a few feet away.  He later acknowledged his mistake upon seeing the replay footage.  Human error.  Highly trained human error.

You can’t reverse a bad call like Joyce’s in baseball because it is accepted that human error is a part of the game.  But, is human error an accepted part of our justice system to the point where an erroneous allegation can result in a criminal conviction?  Our Nation’s “presumption of innocence” and the necessity for “proof beyond a reasonable doubt” does not sound like guess work to me.

You can read the decision in Barberton v. Jenney right here.

Defending yourself in court: the quickest road to ruin.

Now, I know what you’re thinking.  Didn’t Jerry write an article a couple of months ago with tips on how to represent yourself in small claims court?  Yes, I did.  But there’s a big difference between $1,200 in damage to your car and a federal indictment for a bajillion counts of fraud.  Yes, bajillion is a highly technical legal term.

When I was clerking in the Franklin County Court System, I observed a murder trial where the defendant insisted on representing himself.  It reminded me of the courtroom scene from “Airplane 2” – it was just ridiculous.  The Judge was beyond irritated to the point where the Judge’s forehead vein was having a better time than the jury.  When you are on trial for your life, or in a civil trial that can affect your entire life, I firmly believe in the old adage that one who is his own lawyer has a fool for a client.  I’m writing this post after reading John Futty’s article in today’s Columbus Dispatch about a man on trial for fraud.  He’s representing himself despite repeated warnings not to do so from the Judge, his court appointed attorneys, and probably every single person he has come across that knows about this case.  As someone who has tried several cases for clients and has observed a trial where an accused has represented himself, I can say with confidence that this will not end well for Thomas Parenteau.  For the Dispatch, Mr. Futty writes:

As Thomas Parenteau prepared for a second day of cross-examining his former mistress in a multimillion-dollar fraud case last week, he received a harsh critique from the federal judge handling his trial.

"I'm not a lawyer, but I play one in real life at a federal trial where I stand accused."

“You stepped on some land mines yesterday that wounded you pretty good,” Judge Michael H. Watson told Parenteau before bringing the jury into the courtroom for more testimony.

Watson urged Parenteau to reconsider his decision to represent himself, a recommendation he has made more than once since the jury trial began three weeks ago in U.S. District Court in Columbus.

Parenteau hasn’t taken the judge’s advice, insisting instead on exercising his constitutional right to handle his own defense.

A 1975 U.S. Supreme Court ruling that upheld a defendant’s right to self-representation “has been the bane of judges and prosecutors,” said Joshua Dressler, a professor at Ohio State University’s Moritz College of Law who specializes in criminal law. Continue reading

Legal Funnies: Mission: Impossible – Mailbox Rule Edition

If you’ve never visited the Failblog, I would highly suggest having a look around for some comic relief.  I came across this gem and it gave me that inner laughter and brain stimulation that keeps a good “funny” in your head for days.

What a ridiculous stamp for an envelope to have!  The craziest thing may be that someone created this stamp in a shop and sold it.  Now, I could wax philosophical for a while about alternate perceptions of reality: can you ever truly know if you did not receive something?  Or, how do you notify someone of an event that never took place?  But let’s take a look at the legal ramifications this stamp could have since, well, that’s the theme of this blog.

There’s a certain legal theory known as the Mailbox Rule.  In general, the Mailbox Rule allows for the formation of a valid contract at a certain moment in time when one party does not actually know the contract has been formed.  A practical example is a contract, say, to buy 1,500 lbs. of watermelons from a local supplier.  You picked up an order form at his grove-stand last week and filled it out at home to buy 1,500 lbs. of watermelons for a certain price.  You sign it, and drop it into the mailbox that gets picked up at 7:00 AM the next morning.  Well, you are in contract right now – the very moment you dropped the letter into the box.  The supplier does not know you signed it yet, but the Mailbox Rule deems the agreement valid from the moment you circulated the agreement into the mail.

The Mailbox Rule is a little dated by modern standards.  In the 1980’s we were getting used to faxing documents, which now is becoming a dated way to communciate.  Now, I can scan the contract and email it to the watermelon supplier and he will have actual knowledge of the agreement within minutes – not days.

So, what’s with this letter?  Is the sender trying to add some teeth to the Mailbox Rule in an, arguably, idiotic way?  “Yes, your honor, not only did I mail the contract to Jeff, but it said right on the envelope to call me if he did not receive it.  He never called me so….”

Can you think of a legitimate use for this stamp?  I would love to hear one.  But if you don’t think of one, please notify me immediately.

Lawyers using social networks: attorney beware!

These 12 networks just scratch the surface. There are literally hundreds of them. Click for a list.

Lawyers have all kinds of rules to follow when it comes to practicing law, giving legal advice, and advertising.  As social media has expanded over the last few years, one study suggests that 3/4 of lawyers belong to at least one online social network such as LinkedIn, facebook, and twitter.  If you look to either side of this blog, you can see that I am squarely within that 3/4 group.

There is nothing wrong with lawyers belonging to social networks, is there?  In my mind, they are free tools that provide an enormous community for users to share ideas and connect with people that would otherwise be unavailable.

But, lawyers must use their heads when using these networks.  Common sense and experience should be sufficient for most lawyers.  Perhaps the most important key to avoiding foot-in-mouth disease is to proofread, review, and THINK.  We have all had that sickening feeling in the pit of our stomach when we click “send” when we meant to click “cancel” on an email.  Even worse, is the classic “reply all” when “reply to sender” was the intent.  You can’t take those emails back, but at least the audience is limited to (hopefully) a short cc: list.  But, when you post a status update on facebook, all of your “friends” see it, your friends’ friends may see it, and eventually your post will be indexed by Google and may permanently link your name with your entertaining bathroom mishap in search results.

A recent article by Vicki Voisin sets out some examples of lawyers that should have thought twice before using social media.  One example sums up why caution, care, and though should be the focus:

Judge Susan Criss, a Galveston, Texas, state court judge, relayed an interesting personal story as part of the 2009 ABA Annual Meeting program “Courts and Media in the 21sr Century: Twitterers, Bloggers, the New Media, the Old Media, and What’s a Judge to Do?”  Judge Criss admitted learning to adapt to social media as a way to connect with long-lost friends, leveraging Facebook as a tool-and then learning a few surprising things on Facebook … The judge granted a continuance requested by a lawyer upon the death of the lawyer’s father.  Judge Criss also checked the lawyer’s Facebook page. While there was a funeral, there was also a string of status updates posted on Facebook that detailed not mourning her dear departed father, but, instead, the lawyer’s week of drinking and partying.
I’m guessing the continued hearing was a bit awkward for the lawyer and Judge Criss.  Social media is here to stay and it makes the world smaller and communication easier.  This can be a good thing or a bad thing and it all comes down to using social networks consciously and responsibly – if you value your career, that is.

5 Things and More to Know Before you Trademark

Do you have that great once-in-a-lifetime idea? Have you created a great logo or a new word to represent the brand behind your idea? If so, you may consider obtaining a trademark at your state level or at the federal level. The process is not easy and an article by freelance writer Shira Levine I saw today offers some advice:

It seems like almost anything can be trademarked these days. The name of a product, a catch phrase, and your own name, if it’s beguiling, for that matter. All is for sale and fair game for the bidding.

Businesses have been known do whatever it takes to protect their brand, including shut down another trademark that threatens to be the slightest bit akin to their own.

Historically individuals and companies fight to trademark even the silliest of names. The trademark for the almighty iPad, a name that most definitely does not conjure up images of the latest slick gadget from Apple, initially had issues with Fujitsu. Back in 2003, Fujitsu beat Steve Jobs to the iPad trademark, purchasing the name for use as a mobile phone.

This wasn’t the company’s first trademark dispute, either; the name Apple itself caused a multi-year battle with The Beatles’ record company.

Another extreme example is HBO’s Sex and the City franchise, which has had its fair share of trademark issues. In one situation, a clever New York entrepreneur tried to start a health and fitness business called “Health and the City”, but HBO told the owner to back off their trademark. “Health and the City”, however, won that war.

1. Make sure your trademark isn’t already taken. Use LegalZoom or the US Patent and Trademark Office website to verify if anyone has it. Continue reading

Plaintiff’s injury lawyers cringe…Robinson gets strengthened by the Supreme Court

A large part of my practice at Isaac Brant is defense litigation.  For example, Bob gets injured in a construction site accident and sues for his injuries.  Bob naturally goes to the doctor to get better.  Modern medicine is not perfect and its not magic either.  Humans cannot be rebuilt better, stronger, and faster than they were before.  In real life, Bob has been left with permanent injuries to his body and will suffer a lifetime of pain that can only be managed – not cured.

Ohio juries will hear how much the doctor took, not how much she charged.

If the people that Bob sued are found responsible for his injuries, it is only fair that they should pay his medical bills.  For his continued pain and suffering, our society has determined that money is supposed to make it all better.  For a very long time, a common outcome for legitimate injury cases was an award of the plaintiff’s medical bills multiplied by three.  Bob has $25,000 in medical bills, so a fair settlement or jury verdict could be $75,000 to account for his bills and his continued pain and suffering.

Now, enter BIG health insurance and our lovely health care system.  What a lot of people do not realize is that, when a doctor charges $1,000 for a medical procedure, she has a contract with the health insurance companies where she previously agreed to accept $500 for that procedure and call it “paid in full.”  In many real life scenarios, Bob would produce his medical bills at trial showing that his doctor charged $25,000 for his medical treatment where, in actuality, only $9,000 was paid.  So what’s fair?  Is it fair for the jury to hear that Bob has $25,000 in medical bills knowing that $14,000 was just written off?  Or is it fair for the jury to hear that $9,000 was the amount accepted as payment in full for Bob’s treatment? Continue reading

My lips are sealed: Why Conan O’Brien won’t run Jay down

Conan O’Brien gave his first interview since leaving NBC last night on 60 Minutes.  You can watch the interview and read the transcript on Deadline. I didn’t catch the interview last night, but listened to the CD101 morning show jocks talking about it on my way to the office.  They were debating Conan’s response to Steve Kroft’s question of whether Leno acted honorably in retaking The Tonight Show throne from Conan.  Conan’s response was:

I don’t think I can answer that. I don’t think– I can just tell you maybe how I would have handled it. And I would do it differently.

According to the radio jocks (and pretty much everyone I know), Jay was not honorable in the handling of the Tonight Show.  My ears perked up when one of the jocks wondered if Conan did not want to answer or whether, legally, he could not answer the question.

The Answer:  He probably cannot for legal reasons.

Unless you’ve had your head buried in the sand or are one of those esoteric academics that refuses to own a television, you know that Conan was paid handsomely to leave The Tonight Show without a fight.  $32 million is the reported number.  That means there’s a contract, people.  This author would venture to guess that the contract has a hefty non-disparagement clause.

Yes, you can agree not to say nasty things about someone.  This elevated and more civilized version of playground justice boils down to simple language in a contract that says “Conan agrees not to say bad things about Jay Leno.”  The contract probably says that Conan is permitted to say he disagrees with the result or that it’s not what he wanted, but he can’t bad-mouth Jay.

So, when Conan said, “I don’t think I can answer that,” Conan is saying that it’s not worth giving up $32 million for the sweet revenge of calling Jay an unscrupulous, devious backstabber, like he probably wants to say.

My editorial is that Conan probably had two reasons for his answer, (1)  his contractual obligations, and (2) Conan has always displayed the qualities of a complete class-act.  So, while his contract is important to him and his future, his integrity probably keeps his lips sealed as well.  We wish you the best, Mr. O’Brien.

Filling the shoes: Judge Eric Brown to be sworn in as the Chief Justice on Monday, May 3, 2010

Franklin County Probate Court Judge Eric Brown will be sworn in as the Chief Justice of the Ohio Supreme Court on Monday.  This follows Brown’s appointment by Governor Strickland on April 14, 2010. 

The Ohio Supreme Court released the following news update yesterday:

The Honorable Eric Brown, Judge of the Franklin County Probate Court, will be sworn in on Monday as Chief Justice of the Supreme Court of Ohio at a public ceremony at 11:30 a.m. at the Ohio Statehouse.

The event will include the administration of the oath of office by Justice Paul E. Pfeifer and remarks by Judge Brown.

On April 14, Gov. Ted Strickland named Judge Brown to the vacancy on the Supreme Court following the late Chief Justice Thomas J. Moyer’s unexpected death on April 2.

What: Swearing-In Ceremony
When: 11:30 a.m., Monday, May 3, 2010
Where: Ohio Statehouse, North Hearing Room, Senate Annex

The ceremony will be broadcast live at and on cable television via The Ohio Channel. Visit for channels and rebroadcast times.

Judge Brown is campaigning to retain this position in this fall’s election.  As referenced in our post on the passing of Chief Justice Tom Moyer, there are some very large shoes for Judge Brown to fill.  Here’s to the hope of Judge Brown maintaining order, justice, progress, and excellent administration as Moyer did.

How do you feel about the Governor’s appointment of Judge Brown?  Let us know in the comments.

You Must Buy My House, But Don’t Have to Paint My Fence: Specific Performance

Contracts, contracts, contracts.  We all have a basic understanding of what a contract is: it’s an agreement to do something in exchange for something else.  The fundamental elements of a contract are:

Hey, Huck, how about you paint this fence?

Offer: I’ll pay you $50.00 to paint my fence.

Acceptance: Ok, it’s a deal.

Consideration: $50.00 paid to the painter.

Performance: The fence gets painted.

Now what happens if you pay the $50.00 and the painter runs off with it?  You can sue the painter for breaching the contract.  Have a look at my post on small claims court practice for information on how to do this.

Let’s say you sue and you win.  What is your remedy?  Can you get the $50.00 back?  Absolutely.  Can you force the painter to paint the fence (a remedy known as specific performance)?  No.  Ohio law is pretty clear that specific performance for a contract for personal services is not an available remedy.  The reasoning behind this is the “mischief” that could result by forcing a party to perform a service after breaching a contract. Continue reading