12.11.10
Posted in Criminal Law, Family Law, Litigation at 13:41 by Administrator
Q. What remedies might the law potentially provide to victims of domestic violence?
A. Claims for the redress of domestic violence are, at their core, claims to redress intentional, wrongful conduct.
Acts of domestic violence often constitute violation of the criminal law. When police are asked to assist, an officer may, among other things, obtain an emergency protective (civil restraining) order (EPO) for the victim. EPOs are issued ex parte, that is, without affording due process – the right to a hearing – to the person against whom the order is issued. Accordingly, EPOs are valid only for a short period of time.
If unmarried, the victim can request a permanent restraining order by filing appropriate papers in the family law division of the local Superior Court.
If married, the victim may file for divorce and seek a permanent restraining order as part of the divorce action. Alternatively, if a restraining order, but not a divorce, is desired, the married victim may may request a restraining order using the same procedure as would an unmarried person.
In all cases, the victim may also file a separate lawsuit for civil damages against the alleged abuser, as acts of domestic violence typically constitute civil wrongs such as assault and battery.
The reason two or three separate lawsuits may be needed is because no single division of the Superior Court has the ability to order all relief which may be available. For example, the criminal division can enter a judgment of criminal conviction for the crimes of assault and battery, but may not award money damages (however, a criminal court can issue protective and restitution orders). Similarly, a civil court can award civil damages – damages which include, but are not limited to mere restitution – but may not find a defendant guilty of a criminal offense or dissolve a marriage (divorce).
The family law division may dissolve a marriage, issue protective orders, make child and spousal support orders, and make child custody and visitation orders, but it may not award money damages.
The recent appellate case Boblitt v. Boblitt, C061307 (Third Appellate District, Nov. 30, 2010) addressed the issue of similar, and sometimes overlapping, relief which is available in domestic violence cases in California civil and family law courts.
Steven Boblitt and Linda Boblitt separated after a long marriage. During the ensuing divorce action, Linda sought an award of spousal support (alimony). In ruling on Linda’s request for spousal support, the family court considered evidence of alleged domestic violence, one of many statutory factors courts must consider in such cases. Although Linda received an award of spousal support, the family court did not make any findings regarding Linda’s allegations of domestic violence.
Linda then brought a separate civil lawsuit against Steven, in which she again alleged Steven had committed domestic violence against her. Steven moved to dismiss the civil action, claiming that Linda’s allegations of domestic violence had been fully litigated in the divorce case.
The appellate court disagreed with Steven, noting that the primary right Linda sought to vindicate was different in each case, notwithstanding that allegations of domestic violence were common to both cases. The court said that Linda’s civil action sought to vindicate her right to be free from personal injury, while her marital action sought to vindicate her right to, among other things, spousal support. Because the primary right Linda sought to vindicate was different in each case, Linda was allowed to proceed with both cases.
Given the often complex procedural issues associated with litigating domestic violence claims, it is advisable that plaintiff and defendant each obtain their own attorney.
In restraining order and divorce cases, the court may order the person who committed domestic violence to pay the victim’s attorney fees. In civil lawsuits, the plaintiff may be able to pay attorney fees on a contingency basis, from proceeds ultimately received from the defendant.
*Anthony F. Earle, Esquire is a California attorney who practices in the Silicon Valley area of northern California. He can be reached at: anthony.earle@earlelaw.com. This article is intended for information and educational purposes only, and is not intended to constitute legal advice.
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11.11.10
Posted in Bankruptcy, Business Law, Constitutional and Civil Rights Law, Criminal Law, Family Law, Litigation, Real Estate Law, Trusts and Estates at 12:24 by Administrator
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08.28.10
Posted in Constitutional and Civil Rights Law, Criminal Law, Litigation at 07:59 by Administrator
Q. I read a news article the other day about a court decision which held that the First Amendment prohibits the government from criminally prosecuting people who falsely claim to have been awarded military medals. Is that true?
A. The Stolen Valor Act provides: “Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item, shall be fined under this title, imprisoned not more than six months, or both.” 18 U.S.C. § 704(b). The prescribed prison term is enhanced to one year if the decoration involved is the Congressional Medal of Honor, a distinguished service cross, a Navy Cross, an Air Force Cross, a Silver Star, or a Purple Heart. 18 U.S.C. § 704(c-d).
The First Amendment to the Constitution states in relevant part: “Congress shall make no law . . . abridging the freedom of speech. . . .”
Xavier Alvarez, a California public official, stood in a public meeting and announced that he was a retired Marine, a wounded veteran, and the recipient of the Congressional Medal of Honor. Alvarez was lying on all counts. He pleaded guilty, reserving the right to appeal the First Amendment issue.
A three-judge panel of the Ninth Circuit Court of Appeals voted 2-1 to reverse Alverez’s conviction, ruling that the Stolen Valor Act violates the First Amendment. In reaching this conclusion, the majority presumed that all speech – including false statements – deserves First Amendment protection unless there exists a historic and traditional exception to such recognition. Exceptions cited by the majority include obscenity, defamation, fraud, incitement, and speech integral to criminal conduct. Were the rule to be otherwise, the majority opined, “there would be no constitutional bar to criminalizing lying about one’s height, weight, age, or financial status on Match.com or Facebook, or falsely representing to one’s mother that one does not smoke, drink alcoholic beverages, is a virgin, or has not exceeded the speed limit while driving on the freeway.”
The dissent, however, noted that the U.S. Supreme Court has said false statements are unprotected by the First Amendment except in a limited set of contexts, Gertz v. Robert Welch, Inc., 418 U.S. 323, 341 (1974). The dissent added that “[t]he Supreme Court has told us consistently that the general rule is that false statements are unprotected, and has carved out certain limited exceptions to this principle in certain contexts. The majority flips this framework around and suggests that false statements of fact are generally unprotected only in contexts like defamation and fraud, and that outside these contexts [false statements] are fully protected.”
One seemingly important consideration which was not raised in the Ninth Circuit’s opinion in U.S. v. Alvarez, is that Congress, when enacting the Stolen Valor Act, was, presumably, exercising powers enumerated in Article I, section 8, of the Constitution to, among other things, raise and support Armies, provide and maintain a Navy, and make Rules for the Government and Regulation of the land and naval Forces. As there is no similar constitutional authority for Congress to regulate purely private conduct not associated with military service, such as postings on Internet sites like Match.com or Facebook, the majority’s concern regarding false statements which fall outside the purview of the Stolen Valor Act is misplaced.
The dissenting opinion in U.S. v. Alverez might reasonably be interpreted as an invitation for the U.S. Supreme Court to review the case. It will be interesting to see if the government seeks, and if the Supreme Court grants, review.
*Anthony F. Earle, Esquire is a California attorney who practices in the Silicon Valley area of northern California. He can be reached at: anthony.earle@earlelaw.com. This article is intended for information and educational purposes only, and is not intended to constitute legal advice.
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08.14.10
Posted in Constitutional and Civil Rights Law, Criminal Law, Litigation at 08:59 by Administrator
Q. Recently, a police officer contacted me, wanting me to answer questions relating to an investigation the officer was conducting. I have never been in a situation like this before and was not quite sure what course of action to take. What rights do I have in this situation?
A. Law enforcement officers, that is, police officers, sheriff’s deputies, highway patrol officers, detectives/inspectors, district attorney investigators and the like, contact a multitude of people every day, for a variety of reasons. The first, and perhaps paramount, “rule” is that law enforcement officers may not compel you to speak. The second rule is that if you choose to talk to an officer, your statements must be truthful.
Sometimes, if not usually, the purpose of the contact will be readily apparent: the contact is in response to a request for law enforcement services by the person being contacted, a traffic accident which is being investigated, a motorist who is stopped for a traffic violation, or for some other obvious reason.
If you are the person who requested law enforcement services, such as to report a crime, logic would seem to suggest that you should cooperate with the investigation. But remember Rule No. 2. Be truthful. Making a false report of a crime is, itself, a crime.
Contacts with law enforcement at the scene of a traffic accident may be slightly more problematic. When deciding whether to speak with law enforcement, a person should have an understanding of whether he or she is speaking as a victim of a crime or accident, an uninvolved witness, or as a person who potentially committed a crime or who may be liable for civil damages in connection with the traffic accident.
Other times, the purpose of the contact may not be readily apparent. The three most common reasons law enforcement will make such contacts is: (i) to obtain information from uninvolved persons in furtherance of an investigation, (ii) to identify and obtain statements from witnesses to the crime being investigated, and (iii) to obtain incriminating statements from a person who committed a crime.
Where officers seek non-incriminating statements or information from uninvolved persons or witnesses, the person being asked questions may decide to speak with officers simply as a matter of civic – but not legal – duty.
In situations where the purpose of the contact is to obtain incriminating statements, other concerns arise. The infamous “Miranda” warnings are the clearest example of this situation. If an officer “reads you your rights”, that is, says you have “the right to remain silent,” that means you are suspected of having committed a crime and that it probably is in your best interest to exercise that right, as well as your right to not make any statements without the advice of an attorney.
Miranda warnings, however, need only be given when a person is (i) asked incriminating questions while (ii) in-custody. Neither the asking of incriminating questions, nor being in police “custody” will, without more, require the giving of Miranda warnings. Thus, the most problematic situations arise where a person who is not in police custody is asked potentially incriminating questions. Examples of this type of situation range from traffic offenses (”Do you know how fast you were driving? “How much have you had to drink”?) to questions regarding serious felony offenses for which law enforcement may not yet have probable cause for an arrest.
In order to obtain criminal convictions, the American criminal justice system requires government prosecutors to prove beyond a reasonable doubt the guilt of persons accused of crimes. Persons suspected or charged with crimes are under no obligation to assist prosecutors with their work. Thus, where a person is asked potentially incriminating questions by police, the most prudent course of action almost always is to politely decline the invitation to make a statement and to obtain an attorney.
*Anthony F. Earle, Esquire is a California attorney who practices in the Silicon Valley area of northern California. He can be reached at: anthony.earle@earlelaw.com. This article is intended for information and educational purposes only, and is not intended to constitute legal advice.
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11.22.09
Posted in Criminal Law, Litigation, Real Estate Law at 19:24 by Administrator
Several months ago, the resident manager of an apartment complex (“Manager”) contacted Earle Law Offices and requested representation after having been notified by the Santa Clara (CA) District Attorney’s Office that criminal charges had been filed against him.
During an initial meeting with him at the law office, Manager related the following facts and events: Manager had been employed as an apartment manager for more than 20 years. Manager had never been arrested and does not have a criminal record.
Manager, on a recent evening, received a report from a tenant that the odor of burning marijuana was emanating from one of several closely-situated units in a two-story apartment building. In response to the complaint, Manager initiated an investigation in order to determine whether it would be appropriate to summon police.
In order to visually monitor the area of the apartment building from which marijuana smoking reportedly was emanating, Manager walked to a park-like common area in the apartment complex, adjacent to both a swimming pool and the first-floor patios and second-floor balconies, where Manager conducted a brief period of surveillance. It was early evening and although the sun was setting, it was not yet dark.
Unfortunately, Manager’s presence was detected by a male tenant who mistook Manger for a Peeping Tom.
Police responded to the apartment complex, not to investigate illegal drug use, but to investigate whether Manager had broken any laws. During the course of the police investigation, officers took statements from two adult females who were inside an apartment near the location where Manager had been conducting his investigation. The women had not been aware of Manager’s presence outside of their apartment, but said they did not approve of any unlawful conduct in which Manager might have engaged.
The police investigation was documented in a written report, which was then forwarded to the District Attorney’s Office. Significantly, the police did not arrest Manager.
The District Attorney’s Office, based solely on a review of the police report, filed a criminal complaint against Manager, charging Manager with two (2) separate crimes of disorderly conduct: Count I charged Manager with “Prowling”, in violation of California Penal Code § 647(h). Count II charged Manager with “Peeping”, in violation of section 647(i).
“Prowling” is defined by California law as conduct by a person “[w]ho loiters, prowls, or wanders upon the private property of another, at any time, without visible or lawful business with the owner or occupant. . . .” P.C. § 647(h) (underline added).
“Peeping” is conduct by a person “[w]ho, while loitering, prowling, or wandering upon the private property of another, at any time, peeks in the door or window of any inhabited building or structure, without visible or lawful business with the owner or occupant. P.C. § 647(i) (underline added).
An element of each of the two criminal laws with which Manager was accused of violating is that each offense must have been committed “upon the private property of another”.
Furthermore, Manager resided at the apartment complex and was engaging in the lawful conduct of investigating a tenant complaint at the time the alleged offenses occurred.
After Manager’s “not guilty” plea was entered, Earle Law Offices initiated its own investigation, which revealed serious deficiencies in the prosecution’s case. Approximately 70 photographs were taken of the apartment complex and adjacent grounds, which clearly depict that the location where Manager had conducted his surveillance for evidence of possible illegal drug use is located in the park-like common area of the complex, which does not constitute any part of the premises which are rented to any tenant.
After concluding its own investigation, Earle Law Offices was convinced that Manager had committed no crime.
At a pretrial conference, dialog was initiated with the female deputy district attorney who had been assigned to prosecute Manager. The prosecutor was shown (1) a copy of the statutes she had charged Manager with violating; (2) photographs taken by Earle Law Offices of the apartment complex, including the common area where the alleged offenses had occurred; and (3) the portion of the police report in which the investigating officer had written that, at the time the alleged offense was committed, Manager “was in a place [Manager] was lawfully allowed to be.”
Although it apparently was clear to the investigating police officer that Manager had not committed any crime, the investigating police officer presumably thought it less hazardous to that officer’s career to refer the matter to the District Attorney’s office and allow prosecutors to decline to file charges against Manager, rather than to risk being the subject of a citizen/personnel complaint and subsequent internal affairs investigation for (properly) exercising discretion by declining to take any enforcement action.
After being confronted with the actual language of each statute Manager was accused of violating, along with evidence, in the form of photographs and likely testimony of a prosecution witness which would support the defense rather than the prosecution (the police report), the prosecutor responded by asking, “what would you like me to do?” Of course, the response was that all charges against Manager should be dismissed, as Manager had not committed a crime.
The female prosecutor then responded that although Manager’s conduct may not have been illegal, the conduct nevertheless was “creepy”.
Fortunately for Manager, not all conduct that a government prosecutor may consider “creepy” is illegal. Earle Law Offices encouraged the prosecutor to consult with her superiors before a trial of this matter was commenced, which, to her credit, she did. At the next court hearing, the prosecutor informed Earle Law Offices that all charges against Manager would be dismissed.
All criminal charges against Manager have now been dismissed; Manager continues to perform his duties at the apartment complex.
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