Monday, July 25, 2016

Where is the Justice?

Home sweetIn a perfect world, there would be no droughts, no war, no poverty, and no sin.  In a perfect world, employees would work a full week without complaint and employers would pay better than living wages and a yearly COL that actually reflected the rate of inflation.  In a perfect world, people would stop running when police yelled STOP.  Of course, if this were a perfect world, people wouldn't have to even run because they would be perfect and wouldn't have committed a crime that required police to yell STOP or cause them to break out batons and guns and all manner of things that result in lawsuits.  
Of course, all of this brings us to City of Los Angeles v. Contreras.  Once upon a time, Mr. Contreras was driving a white van after tying to murder someone.  Police find him and Mr. Contreras tries to run from the scene.  When Mr. Contreras refused to stop running when police yelled STOP!!!, they shot Mr. Contreras in the side and back paralyzing him.  Subsequently, Mr. Contreras sued the city and won a judgment for $5.7 million.  City argued that the police were justified in shooting a fleeing felon and thought Mr. Contreras was armed when he exited the van.  Ultimately, the SCOTUS didn't agree and upheld the judgment awarding the $5.7 mil plus interest, plus costs, plus attorneys fees of $1 million.
What I want to know is, did the city bother to prosecute Mr. Contreras for attempted murder?  I mean, that was the whole reason Mr. Contreras had to deal with the police in the first place - so where is the justice?  Oh, yeah...Mr. Contreras gets rewarded for pulling an Ironside and the city gets another black eye.  But, again, I ask where is the justice?  Who won here?  Mr. Contreras for getting an kings ransom?  I mean, he probably deserves it what with police shooting people in the back and beating them like they were a dead horse.  On the flip side, why is Mr. Contreras not sitting in a prison cell for the attempted MURDER.  I'm talking the attempt to take the life of another person.  That's a felony, people.  I have friends who have gone to jail for much, MUCH less and Mr. Contreras is a free man because, uh....why, exactly?!? 
While you gotta feel sorry for someone who now resides in a wheelchair, had he not run (i.e. evade police because he tried to kill someone), then Mr. Contreras would not, presumably, have been shot and he could have lived happily ever after.  Or not.  I mean, no one said this was a perfect world, after all.

Monday, July 18, 2016

It makes you wonder, sometimes

You're not doing it right
Sad the lengths some people will take to get attention. Take the young lady who was recently arrested for smoking meth in front of her baby AND THEN POSTING A PICTURE OF IT ON FACEBOOK!!  I mean, can I get an epic face palm?!?  Either she's bragging or just doesn't realize that these pictures go to EVERYONE on the planet (including the police who subsequently arrested her and took her kids away)!

This, of course, reminds me of a young couple who came into our library a while back.  Seems they had filed a personal injury action against a company.  Couple had done some research through, found a complaint resembling something they had seen on L.A. Law and, using the sample, filed against company.  Company demurred to the complaint and the court granted couple a chance to file an amended complaint. 

Couple does a little more research on the Internet, refiled their 1st Amended complaint. Company demurred and court granted the couple a chance to file a 2nd amended complaint.  

Couple does a little more research on the Internet and filed their 2nd amended complaint.  Company demurred and court dismissed couple's case with prejudice.  In an act of desperation, couple came to the law library asked what they did wrong.

Things they did wrong:  
  • FIRST, they relied on the Internet for their legal research.
  • SECOND, they relied on the Internet to look for a complaint that looked kinda like what they were looking for.
  • THIRD, they relied on the Internet to advise them on how to proceed.
  • FOURTH, they relied on the Internet.
  • FIFTH, they relied on the Internet.
  • Sixth, Seventh, Eighth, Ninth, Tenth - they relied on the Internet for their legal information.  

See a trend here?  If you don't, it's that because they relied solely on the Internet for they're legal research needs, they didn't stand a chance in the legal arena.

The reason they didn't stand a chance at success is not because they relied on the Internet, per se, but because they were litigating in California, they did not compare what they found to the California Rules of Court, the California Codes, the California Regulations (all of which can be found for free in a local county law library), nor did they try to seek assistance from their local county law Librarian at local county law library in the State of California!  They were doomed from the start. DOOMED, I say!

Had they, in the very least, gone to their local county law library BEFORE they started with the litigation thing, I could have shown them (like I did) a template that would have addressed their specific causes of action in:
Now, because couple was behind the 8-ball with the dismissal with prejudice, I was having to show her a Motion for Reconsideration as well as information on how to Appeal the judgment using:
I guess the moral of the story is, if you want to lose your case, rely on the Internet for all your research needs. If, on the other hand, you want to have a chance at success, then I suggest you head over to your local county law library and talk to your local county law Librarian who knows their collection and what resources are best for darn near any situation. Yeah, we are that good.

Monday, July 11, 2016

What is it about Hillary?

Meet Ms. Teflon
The other day, news came out that Hillary would not be charged criminally for her mis-management of emails while she was Secretary of State.  This has caused not a little consternation in and around the country and has polarized many in the political world.

Hillary's problems have also found their way into our staff lounge.  In fact, just the other day, as I was eating lunch, I got into a discussion with my boss.  My assertion was that Hillary was a lying trollop that should have been sent up the river.  Boss asserted that because no one really knows what crimes Hillary had committed, that she hadn't done anything wrong.  At the time, I couldn't argue with her because, well, because I didn't know what all Hillary had I had to concede, and went on with lunch.

The problem is that since my discussion with boss, I've asked several people if they know what Hillary did to incur the ire of not a new political pundits.  As it turns out, no one that I talked to knows what all Hillary did.  I mean, everyone has an opinion about what all went on but no one knew, specifically, what she did (or didn't do).  So, I did some research and found out for myself what all is going on with Hillary.

Alleged Crime #1:  Violation of 2009 NARA 1236.22

So, as I understand things, Hillary had sent and received a number of emails on a personal server while she "served" as Secretary of State in the Obama Regime.  A key element of what everyone is crying about is the fact that Hillary failed to keep track of her electronic records (i.e. emails) as per 36 CFR 1236.22 (which governs how Federal employees keep track of electronic records.  Specfically, section 1236.22(b) states that:
(b) Agencies that allow employees to send and receive official electronic mail messages using a system not operated by the agency must ensure that Federal records sent or received on such systems are preserved in the appropriate agency recordkeeping system.
See that little word "must?"  According to the Federal Register Document Drafting Handbook (Section 3), Use ‘must’ instead of ‘shall’ to impose a legal obligation on your reader."   In essence, by working as Secretary of State, Hillary entered into a contract with "we the people" that she would preserve all her files (including emails) in an appropriate agency recordkeeping system.  That she did not indicates that she breached that contract and breach of contract should have consequences.

Further, the fact that Hillary used her personal system is not an issue as much as the requirement to preserve all such emails whether on her server or the office server.  As such, when it says, " employees...must ensure that Federal records sent or received on such systems are preserved..." imposes on employee's a legal obligation to preserve all records whether they want to or not

The upshot to all this was that Hillary was required, pursuant to the Federal Archives procedures, to preserve ALL emails sent in her capacity as Secretary of State (whether on her personal server or on a server held in her office).  The question is, does this constitute a crime? It might if, in fact, Hillary deleted the emails before or after she was subpoenaed.  Regardless, I suspect it's a question for a jury - if it ever gets that far.

Alleged Crime #2: Violation of 18 USC 793 (f) and Executive Order 13526

Does anyone think that when you are appointed to the postion of Secretary of State (of the entire United States) that there is/are documents or other printed information which you are entrusted with that probably should not be taken off premises (i.e. out of your official Secretary of State office)? Such is the basis of 18 USC 793.  To wit, section 793(f) states:
(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—Shall be fined under this title or imprisoned not more than ten years, or both.
The kicker here is that Hillary, in her infinite wisdom, admitted that she deleted about 30,000 emails. The problem with this is how are we going to know what was deleted and whether to believe a potential criminal?  I mean, how many people who flush cocaine down the toilet to avoid arrest are really going to admit to police that flushed coicaine down the toilet? They're going to say they didn't flush anything down the toilet, aren't they?  

In like manner, does anyone really believe that Hillary didn't delete emails that contained national defense?  As such, maybe Hillary should be cooling her heels in the pokey, for this one.

As to Ececutive Order 13526, does anyone think that when you are appointed to the position of Secretary of State (of the entire United States) that there are things that will be discussed that constitute classified national security issues? Such was probably the basis for Executive Order 13526 and, as such, POTUS Obama signed EO 13526 on December 29, 2009 which, "prescribes a uniform system for classifying, safeguarding, and declassifying national security information, including information relating to defense against transnational terrorism."  Further, Section 1.4 states:
Sec. 1.4.  Classification Categories.  Information shall not be considered for classification unless its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security in accordance with section 1.2 of this order, and it pertains to one or more of the following:(a)  military plans, weapons systems, or operations;(b)  foreign government information;(c)  intelligence activities (including covert action), intelligence sources or methods, or cryptology;(d)  foreign relations or foreign activities of the United States, including confidential sources;(e)  scientific, technological, or economic matters relating to the national security;(f)  United States Government programs for safeguarding nuclear materials or facilities;(g)  vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security; or(h)  the development, production, or use of weapons of mass destruction.
Whether you want to believe it or no, it is reasonable to believe that most every discussion by a Secretary of State is going to focus on one of the above classifications.  As such, would that fact that Hillary used her personal email server to deal with such topic constitute a violation of EO13526? Again, enter the jury.

Alleged Crime #3: Violation of FOIA

The Freedom of Information Act (FOIA) gives you (i.e. citizens of the United States) access to information from the federal government - all government (including members of the State Department - of which Hillary was once part of).

Shortly before the 30,000 emails were deleted, Hillary had received a Congressional subpoena requesting all emails on her server.  Subsequently, there have been a number of FOIA requests to the State Department in connection to Hillary's botched handling of Benghazi.  Because she deleted 30,000+ emails, there is little doubt but that both the State Department and Hillary are going to have difficulty fulfilling this request without finding some egg on their face

IF Hillary deleted emails related to Benghazi and IF she did it after receiving the Congressional subpoena, then maybe there might be an argument that Hillary did so to avoid egg on her face (and, subsequent prosecution for destroying records, thereby violating a FOIA request and 36 CFR 1236.22 and Exective Order 13526 and 18 USC 783(f)).  It's all a dominoes game and the game isn't over yet as no fat ladies have started to warm up.

So, there it is - three potential violations which, if found "guilty," Hillary may/should be looking some prison time (as it relates to 18 USC 793(f)) and/or, in the very least, monetary sanctions for violating a FOIA request.  Any such violation would put her qualifications as the next POTUS in jeopardy. Or, at least, it should.

Tuesday, July 5, 2016

Word of the Month for July 2016: Index

A B C D E F G....There's rarely a day that someone doesn't surprise me. Triple homicide with a self defense twist.  Child support with international kidnapping and spousal abuse. A derivative suit with a class action on the side.  A simple DUI that turns into a grand theft auto.  All good reads with an interesting "what happened next" scenario.

Then there was the recent law school grad.  Seems grad had just taken the bar exam and was looking to get into the practice of law; specifically, grad was looking to start a bankruptcy practice like his father before him.  So, I started with showing grad where the various resources were located and how to use them.  I showed him Collier's Bankruptcy Practice Guide, Collier's Bankruptcy Code, opened to the table of contents, appendix and the Index. Grad stops me and (with a straight face), "I get the table of contents and appendix, but what is this "Index" you keep talking about?!"

This, of course, brings us to our word for the month: INDEX.  According to Black's Law Dictionary, an INDEX is: 
a book containing references alphabetically arranged to the contents of a series or collection of volumes; or an addition to a single volume or set of volumes containing such references to its contents.
Basically, an index, organized from A-Z, tells you on what page a particular topic is located in that resource.

As my eyes glazed over I asked, "Uh.........what?!  You don't know what an INDEX is?!??"  I was hoping my glazed over look wasn't so obvious but it was clear grad had no idea what an INDEX was.  Seems his law school had focused so much on online research that grad was able to avoid using print resources.  For shame letting people out of your school without providing the basics to be a well-rounded researcher. If he were me, I'd consider a law suit against the school for failing in its obligation to teach me the basics.

Anyway, for those of the electronic age who really don't know where or what an INDEX is, might I elucidate the concept with a few examples.  So, say you're looking in The Little Book of Baseball Law. To find the INDEX, go to page 231 (towards the back of the book).  If, on the other hand, you were looking in Mental and Emotional Injuries in Employment Litigation, you would look on page 859 (towards the back of the book).  Other example of where you find an index include:
I suspect if there is a running theme here, it's that INDEXES are at the back of any book, resource, volume or set of volumes.  Heck, Am Jur Proof of Facts has 5 volumes for its INDEX (found at the end of the multi-volume set).  

Bottom line, if ever you find yourself in a quandary and don't know where to turn, know that your local county law library is probably the best place to start because we know what you need to know and we're willing to help you start to look for it long after everyone else has abandoned you.  Yes, we are that helpful.

Monday, June 27, 2016

Another Wannabe Bride

Myth #132,213,553.34
Being June, I thought I should throw my hat into the ring and post something about love, marriage and babies.  Wait, babies?!? Sure.  First comes marriage, then comes love, then comes baby in a baby carriage. Turns out most people get that backwards.

For example, young woman came into the library the other day.  Seems she was in love with her beau so she decided the best way to cement the union was to consent to having sex.  Unbeknownst to the guy, she was not on the pill like she said she was.  Subsequently, woman got pregnant (i.e. baby). Guy starts to freak the freak out!  Of course, guy could have refused to have unprotected sex - but what self-respecting guy would refuse consensual relations over a little thing like unprotected sex?

Woman is now angry that guy is not happy with her decision to have a kid (or encourage marriage).  No surprise there. Woman decides that since guy was not forthcoming with a ring and marriage proposal that she needs to take steps to support herself when the kid is born.

After doing some research, I have found that most all states allow you to file for support before a child is born.  We're talking child SUPPORT (not child custody).  However, courts will generally stay proceedings until either the child is born or until paternity can be established.  In woman's case, she can file for support but until either guy says it's his kid or the kid is actually born and a test can be administered, well, woman is pretty much SOL.

Of course, why take my word for it?  Might I suggest (as I did to woman) to take a look at:

So, whether you've got your act together or are a little backwards, know that your local county law library is the place to be to help you set things right (or righter).