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Monthly Archives: August 2014

Legalese From A to Z: 5 Legal Terms Beginning With ‘G’

Welcome back to Legalese From A to Z, our series highlighting the meanings behind legal terms that may not be familiar to non-lawyers. Legalese describes the specialized language of the legal profession -- in other words, things only lawyers would say. With the help of FindLaw's Legal Dictionary, let's take a closer look at five of these terms that begin with the letter "G": Garnishment. Garnishment is a device used by creditors to attach the property or wages of a debtor to repay a debt. Wage garnishment can be used to collect a wide variety of debts, including back taxes, child support, and judgments from court cases. Gift tax. The gift tax is a tax imposed on gifts of property made during a person's lifetime. Certain gifts are exempt from the gift tax, such as gifts to a spouse, donations to a charitable organization, and gifts to any individual up to $13,000 per year. Good faith. Good faith is the absence of bad intentions when entering into an agreement, negotiating, or bringing a lawsuit. For example, in union collective bargaining situations, both the employer and the union are required to negotiate with one another in good faith. Good Samaritan law. A good Samaritan law is a law that provides immunity from liability for a good Samaritan who attempts to provide aid to someone in distress, but inadvertently causes further injury. A good Samaritan law recently passed in New Jersey, for example, provides legal protection to medics and ordinary citizens who administer opioid antidotes to drug overdose victims. Gratuitous. Gratuitous describes an act not involving consideration, compensation, or return benefit. In contract law, a gratuitous promise -- a promise made without an expectation of a return benefit or burden on the promisee -- may be unenforceable if the promisor fails to do what he promised. If you need help with defining a legal word or phrase, check out FindLaw's Legal Dictionary for free access to more than 8,000 definitions of legal terms. Or check back here next Sunday, when Legalese From A to Z will demystify five more legal terms you may not know, beginning with the letter "H." Related Resources: Legalese From A to Z: 5 Legal Terms Beginning With 'A' (FindLaw's Law and Daily Life) What Does 'Wet Reckless' Mean in a DUI Case? (FindLaw's Blotter) What's the Difference Between Bond and Bail? (FindLaw's Blotter) What Is the War Powers Act? What Does It Require? (FindLaw's Law and Daily Life)
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Calif. ‘Yes Means Yes’ Sexual Assault Bill Awaits Gov.’s Signature

California lawmakers approved a groundbreaking "Yes Means Yes" bill on Thursday, in an attempt to fight the growing problem of sexual assault on college campuses. The bill must be signed by Governor Jerry Brown before it becomes law, but if/when it becomes effective, all California colleges and universities will have to change their standards. The Los Angeles Times reports that the bill would require "affirmative consent" between college students hoping to have sex -- removing silence or lack of resistance as signs of consent. SB 967 Requires a Sober 'Yes' for Sex The "Yes Means Yes" bill, officially known as California SB 967, seeks to create more institutional protections for college students who may be sexually assaulted by their peers. Authored by state senators Kevin de Leon and Hannah-Beth Jackson, SB 967 sets the standard for consent to sex a bit higher than some colleges have in the past. And that standard is "affirmative consent." The consent of affirmative consent is best understood by the bill's slogan: "yes means yes." The old "no means no" doesn't create a very high burden on would be sexual assaulters to ascertain whether their partners' silence, intoxicated state, or lack of resistance is really tantamount to a "yes." And with the very serious charge of rape being a possibility for sex without consent, this is not a situation to trifle with. With only a "yes" (or each partner affirmatively consenting), can many of their sexual assault fears be silenced. The "affirmative consent" standard also would not allow accused rapists to claim that an intoxicated victim consented or that the accused was too intoxicated to confirm consent. For college students, this may mean a sobering new reality about drunken sex. Critics Worry About Consequences Not everyone is a fan of "Yes Means Yes." Writing for TIME, Cathy Young notes that this law will create "a disturbing precedent for government regulation of consensual sex" and place many young students at the mercy of "vague and capricious rules." While the California criminal law regarding sexual assault will not be altered by SB 967, disciplinary action from a rape accusation may lead to suspension or even expulsion. Students can still appeal these disciplinary actions, but the burden in school rape cases would certainly be shifted to the accused. According to USA Today, Gov. Brown has until the end of September to sign or veto the "Yes Means Yes" bill. Related Resources: California bill defines what it means to say 'yes' to sex (The Washington Post) 55 Colleges Facing Title IX Sexual Violence Investigations (FindLaw's Blotter) 5 Legal Tips for Sexual Assault Victims (FindLaw's Blotter) Calif. Egg Law Challenged in Federal Lawsuit (FindLaw's Law and Daily Life)
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New App Lets Bay Area Commuters Silently Report Crime

The Bay Area Rapid Transit (BART) has released a new mobile app that allows riders to discreetly report criminal activity on the trains. BART Watch, available on iTunes and Android in English, Spanish, and Chinese, empowers users to snap photos or send quick texts to BART police rather than try to call 911 or run to a train's intercom. BART spokeswoman Alicia Trost told SFGate that it's "sort of like texting police," and you can even do it anonymously. How does this app square with other tech efforts by law enforcement? App to Report Mass Transit Crime Anonymously With the advent of driving report programs like REDDI, it was only a matter of time until someone adapted the concept for mass transit passengers. BART authorities had announced in March that they were collaborating with ELERTS Corporation to make the BART Alert app, similar versions of which had been created in Massachusetts Bay, Atlanta, and Santa Clara, California. This new app was part of a larger national effort, urging transit passengers that "If You See Something, Say Something." The vague yet Orwellian slogan was cooked up by the U.S. Department of Homeland Security and encourages average citizens to act as extra eyes and ears for law enforcement. New apps like these may be especially in demand in cities like New York, where the police department has taken a hard stance on even the most minor crimes which occur in the city's subways. How Do You Use the App? After installing the app, BART Watch asks for permission to send you emergency alerts and "push" notifications. Then, you are asked to enter your first name, last name, email, phone number, and even face picture. A small disclaimer at the bottom notes that the information is "optional." Once you pass these initial screens, you are lead to the app's main page with the following main options: Report an incident or call BART police. Since one of the selling points of this free app was as an alternative to calling 911, we checked out reporting an incident. The menus were fairly user friendly and allowed users to take photos, type a brief report and even select the type of report and location of the activity. It also included an option to toggle between normal and "anonymous" reporting. Trends like this new app may allow law enforcement to more readily police transit lines in major cities. Related Resources: BART launching app to help riders report crime, suspicious activity (The San Francisco Examiner) Are Police Scanner Apps Illegal? (FindLaw's Blotter) NYC Cops Nab Alleged Rapist Via iPhone App (FindLaw's Blotter) ACLU's New App Secretly Records Police When You Get Pulled Over (FindLaw's Technologist)
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Bus Accident at Burning Man Claims Woman’s Life

A woman attending this year's Burning Man festival in the Nevada desert has reportedly been killed in a bus accident. The woman, who has not been identified pending notification of her next of kin, fell under a bus carrying festival attendees, reports the Burning Man Blog. What are some of the legal options the woman's family may have following this tragic incident? Wrongful Death Lawsuit When a person's death may be caused by the intentional or negligent actions of another, the deceased person's family may decide to file a wrongful death lawsuit. Injured? Exercise your legal rights. Get in touch with a knowledgeable personal injury attorney in your area today. Wrongful death lawsuits generally require the survival of family members who are suffering financial harm as a result of their family member's death. The wrongful death lawsuit seeks to compensate surviving family members for this financial loss, by awarding them damages in the amount of lost support, services, and income the deceased may have provided as well as medical and funeral expenses. Liability of Festival Organizers One possible avenue of legal recourse would be to bring suit against the organizers of the festival for negligence. Negligence generally requires that a person or business have a duty to act reasonably, and that by failing to do so, they caused injury or death. In this case, the woman's family could claim that the festival organizers had a duty to make the festival grounds reasonably safe and that their failure to do so caused the woman's death. Liability of Bus Driver, Owner The woman's family could also allege negligence on the part of the bus driver, as well as the owner of the bus or bus company. Buses are generally considered to be common carriers, which makes them subject to a higher standard of safety. This may mean that even a minor breach of the bus driver's duty to act safely may be sufficient for liability for negligence. However, this typically only applies to injuries to passengers. If the bus was being driven by someone other than the owner who was being compensated for doing so, the owner of the bus or bus company may also be liable for any negligence on the part of the driver under the legal doctrine of respondeat superior. The owner of a vehicle may also be held liable for the negligent acts of the driver if it was found they had a reason to know the person was a bad driver or was otherwise unfit to operate the vehicle. Related Resources: Woman Dies In Bus Accident At Burning Man (SFist) Play Legally on the Playa: 5 Legal Issues at Burning Man (FindLaw's Legally Weird) Burning Man Lawsuit Filed, Show May be in Jeopardy (FindLaw's Law and Daily Life) Injured on a Bus? 5 Legal Points to Consider (FindLaw's Injured)
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Lifeguards and Liability: 3 Things Swimmers Should Know

Lifeguards may seem like towering figures with their tall posts and zinced noses, but they can be liable for swimming injuries and deaths when they make mistakes. For this reason, lifeguards are required to be certified and trained to deal with common emergencies that occur in and around pools. Different states' safety standards are not always identical, but they form a general patchwork of legal liability for when lifeguards falter in their duties. For swimmers, here are three things you should know about lifeguard liability: 1. Lifeguard Duties, Certifications Are Regulated by State Law There is no federal standard for how lifeguards need to be trained and certified, but most states have statutes which require Red Cross lifeguard and CPR training (or their equivalents) before an applicant can work as a lifeguard. For example, Texas requires lifeguard, CPR, and community first aid training for all lifeguards on duty, and where lifeguards are provided, no swimmers can be present in the pool unless a lifeguard is on duty. States may also define what a lifeguard can do in terms of their on-job duties. California limits on-duty lifeguards to perform no duties "other than to supervise the safety of participants in water-contact activities." 2. Standards Are Higher for Lifeguards Because of this web of legal requirements woven by state laws, lifeguards are often held to a higher legal standard when a person is injured or dies under their watch. In injury cases involving negligence of an average person, the law asks only if that person acted in giving the same care as a reasonable person might under those circumstances. Injured? Exercise your legal rights. Get in touch with a knowledgeable personal injury attorney in your area today. Those who belong to professions which have specific training related to injury, like lifeguards, are held to a different standard of care: How a reasonable lifeguard would have acted under the circumstances. This may lead a court to find a lifeguard negligent in providing aid when a reasonable lay person may have acted the same way. 3. No 'Good Samaritan' Protection Unlike most people, on-duty lifeguards do have a legal duty to rescue and provide emergency aid to those in need -- it's pretty much their main jobs. For this reason, "Good Samaritan" protections do not provide lifeguards legal cover for mistakes or negligence on the job that leads to injury or death. If you feel like you or a loved one has been injured by a lifeguard, contact a personal injury attorney today. Related Resources: 'Delayed drowning' or heart failure: Suit over Liberty High School student death heads toward trial (The Express-Times) FL Lifeguard Fired Over Liability Concerns (FindLaw's Free Enterprise) Lifeguards Fired for 'Gangnam Style' Parody (FindLaw's Law and Daily Life) Beach Injuries: Who is Responsible? (FindLaw's Injured)
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S.D. Comic-Con’s Moving Because of Court Ruling?

A decision by the San Diego City Council not to appeal a ruling by the Fourth District Court of Appeals may spell the end of that city's annual hosting of what has become a comic book culture institution: San Diego Comic-Con. The appeals court decision earlier this month struck down the proposed levying of a special tax on hotel rooms around the San Diego Convention Center, where the yearly event is held, reports The Hollywood Reporter. The city had planned to use the money to expand for a $520 million expansion of the convention center. Why does this news mean we may be seeing the Los Angeles Comic-Con after the convention's contract with San Diego runs out in 2016? Expansion Was Key to Extending Comic-Con Contract The annual, five-day Comic-Con is estimated to bring $180 million dollars a year to San Diego, reports the San Diego Union Tribune. So when other cities began tempting the convention with their larger convention centers San Diego officials convinced Comic-Con to stay put, in large part by agreeing to an expansion of the city's aging convention center. However, in order to finance the expansion, city officials enacted a somewhat controversial plan. According to the Los Angeles Times, the plan allowed hotel owners to increase taxes on hotel rooms around the convention center without putting it to a vote by the city's voters. Special Tax Found Invalid The Fourth Appellate District Court ruled that this tax plan violated the California Constitution, which requires that no special tax will be imposed unless it is submitted to the electorate and approved by a two-thirds vote. In deciding not to appeal the ruling, the City Council now must now find another way to come up with the money needed to expand the convention center to accommodate the Comic-Con's growing footprint. In the meantime, the Comic-Con may be once again entertaining offers from other cities. Follow FindLaw for Consumers on Facebook and Twitter (@FindLawConsumer). Related Resources: San Diego Ruling Means Comic-Con Could Leave After 2016 (IGN) SLCC Punk: San Diego Tries to Muscle Rights to 'Comic Con' (FindLaw's Free Enterprise) 'Twilight' Fan Killed by Car at Comic-Con (FindLaw's Injured) San Diego Mayor Bob Filner Set to Resign: Report (FindLaw's Law and Daily Life)
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When Can Kids Legally Own, Shoot Guns?

Firearm enthusiasts who may also be parents or grandparents should be aware that the laws regulating the ownership, possession, and use of guns by kids are often different from the laws for adults. These rules are also facing increased scrutiny following a fatal accident at an Arizona gun range in which a nine-year-old girl shot an instructor in the head when she lost control of a fully automatic Uzi submachine gun, reports the Las Vegas Review-Journal. What are the rules for when kids can legally own or shoot a gun? Is it Legal for Kids to Have a Gun? Both federal and state gun laws typically distinguish between long guns, such as rifles and shotguns, and handguns. Under federal firearms law, licensed firearm dealers may not sell a handgun to anyone under age 21, or sell a long gun to anyone under age 18. Unlicensed individuals may not sell, deliver, or permanently transfer (such as giving a gun as a gift) a handgun to anyone they have reasonable cause to believe is under age 18, but there is no minimum age for selling, delivering, or transferring a shotgun or a rifle for individuals not licensed as a firearm dealer under federal law. Know someone who has been arrested or charged with a crime? Get in touch with a knowledgeable criminal defense attorney in your area today. There is also no minimum age for possession of a long gun under federal law. However, those under 18 are prohibited from possessing handguns or handgun ammunition, except if doing so in the course of employment, in the course of ranching or farming related activities, for target practice, hunting, or during the course of instruction in the "safe and lawful use of a handgun." In addition to federal laws, individual states each have their own laws regulating the possession and use of firearms, which may affect the legality of a minor's ability to own or possess a firearm. Is it Legal for Children to Fire Guns at Gun Ranges? Many states choose not to further restrict the temporary transfer of firearms to minors for use in target practice or firearm safety training allowed by federal firearms law. These exceptions to the general rules for firearm possession by minors have led to something of a cottage industry in some states. One Texas gun range even opened up two rooms for hosting children's birthday parties. In Arizona, the state in which the nine-year-old girl inadvertently killed her shooting instructor with an Uzi, state law allows for the temporary transfer of firearms to minors by firearms safety instructors or by another adult accompanying a minor in hunting or target shooting activities -- so long as the child's parents give consent. And though the incident in Arizona was tragic, the Mohave County Sheriff's office told the Las Vegas Review-Journal that no citations or charges will be filed in the incident Related Resources: 9-year-old girl accidentally kills gun instructor with Uzi (San Jose Mercury News) Legal to Bring Your Gun to Work? (FindLaw's Law and Daily Life) 5 BB Gun Laws You Need to Know (FindLaw's Blotter) Does Ga.'s New Gun Law Expand 'Stand Your Ground'? (FindLaw's Blotter)
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Ariz. Gun Range Death: Who’s Liable?

Law enforcement authorities have stated that no one will be charged criminally in the fatal shooting of an Arizona gun range instructor killed when a nine-year-old girl lost control of the fully automatic Uzi submachine gun she was firing, reports ABC News. But accidents that cause death, even ones that don't involve criminal conduct, often result in wrongful death lawsuits or other civil litigation. Who, if anyone, might be liable for this tragic accident? Wrongful Death Actions Wrongful death actions are typically brought by family members of a deceased person when another person's intentional or negligent conduct caused their family member's death. Injured? Exercise your legal rights. Get in touch with a knowledgeable personal injury attorney in your area today. In this case, video footage filmed by the girl's parents shows that the girl did not intend to shoot the instructor, but rather lost control of the gun she was firing. But was the accident the result of negligence on the part of the girl or her parents? Was the Child Negligent? Negligence requires a person, who had a duty to act reasonably given the circumstances, failed to act reasonably and this failure caused another to be injured. It is possible to bring a lawsuit against a child for negligence; however, it may be more difficult than suing an adult. Children are generally not expected to act as a reasonable adult would act. In some jurisdictions, however, children can be held to an adult standard of reasonableness when they are engaged in what are known as "adult activities." In some states, parents may also be held vicariously liable for the negligence of their children, or be found liable for negligent supervision of their children. It may be difficult, however, even if held to the adult standard of reasonableness, to prove that the child, who was firing a fully automatic weapon for the first time acted negligently when she lost control of the gun. Negligence of Shooting Range? It may also be possible to bring suit against the shooting range itself for negligence. Although it appears that no laws were broken in allowing the girl to fire the weapon, many are questioning the safety of the range's policies allowing minor children to fire fully automatic weapons. The gun range's owner told The Associated Press that the range's policy of allowing children eight and older to fire guns under adult supervision is standard practice in the industry, adding that in 14 years of operation, the accident was the first injury or death that has occurred. Related Resources: A 9-Year-Old at a Shooting Range, a Spraying Uzi and Outrage (The New York Times) After a Tragic Shooting, Wrongful Death Suits Follow (FindLaw's Injured) Can A School Be Sued for a Shooting? (FindLaw's Injured) Burglary Suspect Sues Homeowner for Shooting Back (FindLaw's Legally Weird)
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ASU Back-to-School Alcohol Crackdown Nets 392 Arrests

Police in Tempe, Arizona arrested 392 people as part of an alcohol-crime-focused task force last weekend, which not coincidentally kicked off the first weekend of the fall semester for Arizona State University. The "Safe and Sober" campaign, according to the Tempe Police Department, is a collaborative effort between 18 law-enforcement agencies and is scheduled to last until September 6. The Phoenix New Times reports that of the hundreds arrested, approximately one in three were arrested for DUI. What can we learn from this ASU alcohol crackdown? Some 'Arresting' Statistics While the number of arrests may lead one to believe that this program is something new and unexpected, this is actually the second year of the "Safe and Sober" enforcement campaign. Last year's inaugural instance of the program netted 309 DUI arrests and 1367 arrests in total, spanning three weekends at the beginning of ASU's Fall 2013 semester. This is far more than the 392 total arrested thus far in this year's "Safe and Sober" campaign, but we remind readers that the 2014 run still has two weekends to go. The New Times reported that comparing this past weekend with that same weekend in 2013, there were actually 21 more arrests in 2014. It's unclear that this suggests that alcohol-related arrests are increasing, and more may become clear once the campaign is concluded. Arizona's Governor's Office of Highway Safety actually reported fewer DUIs in 2013 than in 2012, suggesting that drivers may be wising up. Know someone who has been arrested or charged with a drunken driving offense? Get in touch with a knowledgeable DUI attorney in your area today. Whatever the trend, the arrests last weekend included: 146 DUI arrests, 112 arrests for minors consuming alcohol, 35 arrests for minors possessing alcohol, and 99 arrests for "other offenses." Hopefully any increase in alcohol-related arrests also corresponds to increased safety for Arizona's drivers and minors. Back-to-College Booze Tips Since ASU's students seem largely clueless to the legal ramification of underage drinking and DUI, despite a combined 18 law-enforcement agencies watching them like hawks, here are some easy-to-remember back-to-college alcohol tips: Even if your campus has a lax alcohol policy, know that it is illegal for minors to consume alcohol (unless it's with their parents); States like Arizona have extreme and aggravated DUI penalties for drunken driving offenses with minors in the vehicle; and Most college campuses have free shuttles or "safe ride" services, so use them. Try to start this semester without having to call a DUI lawyer. Related Resources: Tempe apartment residents throw beer bottles at police (The Arizona Republic) MIP: 3 Things to do After a Minor in Possession (FindLaw's Blotter (FindLaw's Blotter) 5 Ways Hazing Can Get You Arrested (FindLaw's Blotter) 5 Things a DUI Lawyer Can Do (That You Probably Can't) (FindLaw's Blotter)
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Women Criminal Defense Attorneys: Cris Arguedas Representing FedEx in Historic Criminal Case

FedEx was criminally charged in the Northern District of California with trafficking drugs for illegal web pharmacies. One of our fellow women defense attorneys, Cris Arguedas of San Francisco, California, is lead counsel with Allen Ruby for FedEx. Arguedas has a national reputation for her involvement in the defense of many high profile defendants like Barry Bonds and as a member of the OJ Simpson team. I have had the pleasure of interviewing Cris Arguedas, heard her speak, and met her in San Francisco. She is one of the great true defenders in this country and FedEx clearly has demonstrated their commitment to defending themselves in their wise choice of defense counsel. Arguedas appeared in Court at the end of the July and entered a Not Guilty Plea to the Indictment stating in court, “We are a transportation company, not a pharmacy, not a website, not a doctor.” The allegation is that FedEx delivered drugs from internet pharmacies that supplied pharmaceuticals to patients that were never examined by a doctor but rather based on them filling out a questionnaire. Arguedas said, “The Company has cooperated with the Department of Justice throughout its multiyear investigation,” and “FedEx will continue to defend its conduct and its people.” This prosecution is part of the government’s crackdown on online pharmacies. Last year the United Parcel Services, Inc agreed to forfeit $40 million for shipping from illicit online pharmacies under a non prosecution agreement with the Justice Department, Walgreens and CVS. A decision like United States Parcel Services made to settle with the Department of Justice has become commonplace in this country. It is now the standard cost of doing business that US and International companies and banks wanting to do business in the United States will inevitably have to settle with the government over an investigation or probe into their criminal and regulatory violations. The problem with this practice is that the Government’s allegations are never truly tested. They don’t have to prove their allegations in a court of law subject to a legal standard that exists to protect the rights of individuals and companies. The charges leveled in the FedEx case are particularly concerning because at the heart of the allegation is the notion that a company should be responsible for policing its customers. Sound familiar? This is a dangerous slippery slop. Thankfully for FedEx and the rest of us for that matter, Cris Arguedas is leading the fight against such an injustice.
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