defenses

Can I Sue for Snowball Injuries or Property Damage?

You’re dreaming of a white Christmas and everything that entails, like sledding, skating, and snowballs. But what if someone breaks a window, or worse, a skull, in a snowball fight? Rest assured, you can sue if you are injured due to someone’s negligence. Also, you can be sued for any damage you cause to a person or property with a snowball or otherwise. The elements of negligence are always the same, regardless of how injury occurs. So before the eggnog flows and you traipse out into the snow, let’s look at negligence in a nutshell. Negligence Explained To succeed in a negligence suit, a plaintiff must prove that the defendant owed them a duty of care, breached that duty, and caused a harm for which there are compensable damages. In the context of a snowball fight, you assume some risk of injury, so it may be challenging to prove a suit. Still, you can do it. A friend can be negligent. Say, your friend packs a rock in a snowball and hits you in the head, causing brain damage. You thought you’d be tossing soft puffs that disintegrate in a shower of flakes, not lobbing deadly projectiles. In that case, you can certainly make a negligence claim and expect to be awarded compensation for expenses associated with your injuries. Similarly, if you hit a person or property, you can be liable for injury. A plaintiff who can show duty, breach, causation, and harm will succeed in a negligence claim, whether or not they have agreed to join the fun. A Snowball’s Chance in Hell Snowball lawsuits have been filed before but make sure you can back a claim if you do sue. In 2010, a snowball fight after a Seattle Seahawks game became the subject of a suit. The plaintiff claimed emotional distress about the flakey fracas. But there was footage showing everyone having a good time. Speak to a Lawyer If you are injured in the snow this winter, see a doctor and speak to a lawyer. You may have a negligence claim. Let a lawyer assess your case; many attorneys do not charge for an initial consultation. Related Resources: Have an injury claim? Get your claim reviewed for free. (Consumer Injury) Negligence Background (FindLaw) Defenses to Negligence Claims (FindLaw)
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UK Millionaire Acquitted of ‘Accidental’ Rape

A man who claimed he accidentally penetrated an 18-year-old woman when he fell on her was acquitted of rape charges by a British jury. After brief deliberations, millionaire Ehsan Abdulaziz was found not guilty, despite some very strange explanations of what happened, according to the New York Daily News. Money Can't Buy Me Love? Abdulaziz, 46, is a millionaire property developer with an apartment in London. He was apparently out drinking at an exclusive nightclub in August 2014 and invited two women to join him at his pricey private table. Then, he offered them a ride home in his Aston Martin. They ended up at his apartment for a drink instead. The two women -- one 24 and the other 18 -- stayed the night. The younger one slept on the sofa in the living room. Abdulaziz claimed in his defense that he had sex with the older woman and in the morning just fell on the younger one. He accidentally penetrated her when he just meant to ask if she needed a t-shirt or a taxi home. The considerate older gentleman said in his defense that the woman pulled him as he was making his offer and he fell. He admitted his penis may have poked through his underwear. "I'm fragile, I fell down but nothing ever happened. Between me and this girl, nothing ever happened." As for evidence of semen? He said it was possible he had some on his hands after the sexual encounter with her friend. The young woman had an altogether different story. She said Abdulaziz raped her. She woke up in the early morning to find the man forcing himself on her as she slept on the sofa in his London apartment.What Are the Elements of Rape?In criminal law, the elements of rape are satisfied if there was 1) non-consensual sexual intercourse that was 2) committed by physical force, threat of injury, or other duress.According the the young woman's account, Ehsan Abdulaziz used physical force without her consent to commit the sexual act. By her account, rape would have occurred. However, the jury found differently ... Jury Deliberates Briefly The British newspaper, The Mirror, reported that the case took an unusual procedural turn. Twenty minutes of evidence were heard in private. The jury apparently did not spend long pondering the tale anyway, perhaps finding it tasteless. After only 30 minutes of deliberations, it rendered a verdict of not guilty. Abdulaziz was acquitted. Charged With a Crime? If you or someone you know has been accused of a crime, speak to a lawyer. As this case makes plain, a creative defense can go a long way. Get help from a criminal defense attorney. Related Resources: Browse Criminal Defense Lawyers by Location (FindLaw Directory) What Is the Role of a Jury in a Criminal Case? (FindLaw) Criminal Trial Overview (FindLaw)
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Tips for Defending Against a Frivolous Injury Lawsuit

You have been served with an injury lawsuit and from your point of view, it is a frivolous claim. But you still have to defend yourself. So how do you do that? Let’s take a quick look at negligence and how you defend it by negating the elements of the claim. Negligence, in Brief The elements of negligence are duty, breach, causation and harm (or injury). To defend against a claim of personal injury, you will have to negate an element of negligence. In brief, the plaintiff will argue that you owed them a duty of care, that you breached that duty, and that the breach caused a harm or injury which is compensable. Damages are only awarded if all of that can be shown. For the defendant, only one element must be disproven to defeat the case. How to Negate the Elements of the Frivolous Claim You need not negate every element and some might be impossible to disprove. Duty of care, for example, may be difficult to disapprove as the duty arises from a relationship — personal, professional, service, or other — and is likely the basis for your being named in the claim. Still, you might argue that you owed the plaintiff no duty of care. Whether that is plausible depends on the details of the case. If the person injured had only the most tangential relationship to you, perhaps you owed them no duty. A more likely argument is that you did not breach the duty of care. Even if you were in some sort of relationship with the plaintiff, you can still argue that you behaved as a reasonable person would under same or similar circumstances. In other words, you owed a duty and did not breach it. If you can show no breach, you have already succeeded — you cannot be held liable for an injury if you behaved as a reasonable person would under same or similar circumstances. The same principles apply to causation and harm. The plaintiff argues you caused the harm. You try to show that there were intervening causes that were not foreseeable or that you just did not cause it at all. Finally, you might argue that there was no injury or that the injury is not as severe as the plaintiff argues and that the damages sought far exceed actual harm. Talk to a Lawyer There is really no way around this. You need a lawyer. Although the injury claim may seem frivolous to you, lawsuits involve a lot of paperwork and deadlines and administration. You do not want to defend yourself alone and you should not try. If paying for defense counsel seems prohibitive, just contemplate paying damages. Plaintiffs Too The same advice goes for plaintiffs. You need representation. If you have been injured, consult with a personal injury attorney who will assess your claim for free. Related Resources: Have an injury claim? Get your claim reviewed for free. (Consumer Injury) Meeting With an Injury Attorney (FindLaw) Fact Finding and Discovery (Findlaw)
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Criminal Consequences of Stealing Packages

It is a federal criminal offense to tamper with the mail. So no matter how delightful and intriguing the neighbor's deliveries seem, avoid the temptation to pilfer a package from their porch because you're short on Christmas gifts. Theft of a letter, post card, package, bag, or mail from a US post office or a collection center associated with USPS is subject to fines and up to five years imprisonment, according to the United States Code, Section 1708. Receiving mail that was stolen is similarly punishable. Postal Police The United States Postal Inspection Service is the federal law enforcement and security arm of the Postal Service. It has 3,000 Postal Inspectors and Postal Police Officers charged with safeguarding the nation's mail system and combating mail theft and fraud. The Service has 1,600 Postal Inspectors who investigate postal-related crime, such as identity theft, mail bombs, postal robberies, and burglaries. In an average year, postal police make about 10,000 arrests of criminal suspects, they say. Many of the arrests are for mail theft or possession of stolen mail. Additionally, the Inspectors respond to an average of 900 postal-related assaults and threats, leading to hundreds of arrests. The Service investigates roughly 3,000 mail fraud cases and about 4,000 reports of suspicious substances and items in the mail, including mail bombs. According to the Service, "the overwhelming majority of incidents are nonhazardous." Non-Governmental Deliveries The United States mail belongs to the federal government and is protected by it. But that does not mean that you can steal from other delivery services. Although not all packages come with the heft of the feds behind them, it is still a crime to steal. Last year, a Texas woman caught a man stealing a package from her porch on camera. "Just backed up like they belonged here. Gentleman comes out the back of the car, grabs the package, puts it in the car and they leave," explained the theft victim. The thief was later arrested and charged with theft. Too Tempting? If you do end up charged with theft of mail or any other crime, do contact a criminal defense attorney. Counsel can defend you, whether or not you are guilty. Related Resources: Browse Criminal Defense Lawyers by Location (FindLaw Directory) Theft Defenses (FindLaw) Shoplifting (FindLaw)
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Women Criminal Defense Attorneys: Interview with Amy Walsh

I recently had the privilege of interviewing Amy Walsh, a partner in the New York office of Morvillo LLP. Amy represents individuals and institutions in government investigations, enforcement actions, and prosecutions conducted by various government agencies. She was recently appointed as a monitor in the JPMorgan Chase’s settlement with the DOJ. Prior to entering private practice, Amy was an Assistant United States Attorney for 12 years in the United States Attorney’s Office in the Eastern District of New York and was former Chief of the Business and Securities Fraud Section. Amy frequently publishes and speaks on various topics related to her practice, and has been named regularly in Super Lawyers in the area of white collar defense. I am thrilled to introduce you to Amy Walsh. She reminds us all that you don’t need to be a partner in BigLaw to be breaking the glass ceiling in white collar corporate work. Susan Bozorgi: What inspired you to become a criminal defense attorney? Amy Walsh: I was inspired to practice criminal law – first as a prosecutor, then as a defense attorney – when I was clerking for a federal judge. Although the civil cases were intellectually interesting, the stakes are so much higher for someone who could lose his or her liberty that the work seemed much more meaningful to me. SB: You are the only woman partner at your firm, which is typical for many women working in small to mid-size firms. How, if at all, does this shape your work or role in the firm? AW: Women often bring a different perspective to various aspects of a law practice: how to interact with a particular client, how to articulate an argument in front of a particular judge, and how to generate business. I’ve found that if the men in the room value that different perspective – and all of my law partners do – it can greatly enhance relationships with clients, other lawyers and professionals within the firm. SB: What do you think it takes to make it in private practice? Is the advice different for a woman? AW: I’m not sure the advice would be different for a woman or a man, but my advice is threefold: (1) Work on as many matters as possible, because, in my experience, work begets work; (2) No matter how busy you are, stay 100% on top of your matters and your interactions with other lawyers. (There’s nothing that turns a potential referral source off more than getting the impression that you don’t have your act together because it takes days to get a return email or you haven’t mastered the facts of the case); (3) Develop and nurture as many relationships with other lawyers as possible, which means connecting with lawyers that you’re working with at other firms, then following up with them and anyone else you know to go out to lunch, dinner, drinks, or whatever activity you think would be relaxing and fun to do together. SB: What has been your most successful business development strategy? AW: I love to socialize, so for me it has been developing relationships with other lawyers where we can have fun in an informal way but also can brainstorm about issues that are coming up in our cases. I actually think that this aspect of business development is something that women naturally thrive at, but the key is to realize that there’s no reason to be shy about asking someone to have lunch or expressing an interest in working together. Women usually want to work together! SB: Did you have women mentors? How did they — or the absence of women mentors — impact your career? AW: I had lots of women role models, but not necessarily a woman mentor. When I was in the US Attorney’s Office, I spent a lot of time watching other lawyers try cases and watching judges on the bench. For me, there was nothing better than identifying a style that I liked and thought could work for me, and then modeling my behavior after that style. There were many women AUSAs and judges in the EDNY that I admired and modeled my behavior after (and still do). SB: Of the women that you admire in the field, what do you find inspiring about them? AW: What inspires me most about the women I admire is their fearlessness. Which doesn’t mean that they’re jerky or arrogant. What it means is that they’re not afraid to take on a new case in an area that they’re not already an expert it; they’re not afraid to socialize in a room full of strangers and connect with at least a couple of people; and they’re not afraid to fail and try again. SB: What is the road you would advise best prepares a young woman to have her own white collar criminal defense practice one day? AW: I might be showing my bias for the path that I took, but I think it’s being a prosecutor. Working as a prosecutor gives you the greatest opportunity to try cases and enables you to understand in the pre-indictment phase how a prosecutor will react to certain arguments. Both of these skills are critical to representing clients in the white collar defense world. SB: I see that you were recently appointed to act as a monitor for JPMorgan Chase in one of its settlements with DOJ. How have you found that work? AW: The monitorship has been an incredibly interesting and rewarding experience so far. Acting as a monitor is very different from the usual role of acting as an advocate. ...
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What Counts as Criminal Mischief?

Although many criminal charges are very specific, others, such as criminal mischief, can encompass a wide variety of criminal behavior. Criminal mischief generally includes what is commonly known as vandalism, dealing mainly with crimes committed against property such as defacing someone's building with graffiti or breaking the windows of a business. Although vandalism may be included under state criminal statutes forbidding "criminal damage" or "malicious trespass," in many states, vandalism may be charged as criminal mischief. What typically counts as criminal mischief? Here are a few examples of criminal mischief laws in different states: Texas. Under the Texas Penal Code, criminal mischief includes knowingly damaging or destroying another person's property or tampering with the property of a person if that tampering causes loss or substantial inconvenience to the owner or another individual. Texas' criminal mischief statute also forbids intentionally or knowingly making markings "including inscriptions, slogans, drawings, or paintings" on another person's property. In Texas, criminal mischief is a felony if it causes a loss of more than $1,500 or involves fencing used for livestock or game animals. Alabama. Under Alabama law, criminal mischief is considered intentionally inflicting damage to property, when you have no right (or reasonable grounds to believe that you have a right) to do so. Criminal mischief is a felony in Alabama if the damages exceed $2,500 or are inflicted by means of an explosion. Otherwise, criminal mischief is either a Class A or Class B misdemeanor. New York. New York also charges criminal mischief as a felony when a person intentionally damages another person's property (without right or reasonable grounds to believe he has a right) in an amount exceeding $1,500 or by means of an explosion. Misdemeanor criminal mischief in New York includes a number of different acts such as breaking into a locked vehicle to steal property or intentionally participating in the destruction of an abandoned building. If you've been charged with criminal mischief or another crime, a criminal defense attorney can explain your legal options and represent you in court. You can learn more about criminal charges, criminal court procedure, and your constitutional rights at FindLaw's section on Criminal Law. Related Resources: Browse Criminal Defense Lawyers by Location (FindLaw) Man Bulldozes Home Without Telling Wife; Gets Arrested (FindLaw's Legally Weird) Doughnut Vandalism Leaves Ore. Town Glazed and Confused (FindLaw's Legal Grounds) Woman Arrested for Vandalizing Florida Satanic Display (FindLaw's Legally Weird)
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‘Suge’ Knight Case: When Can a Judge Revoke Bail?

Last week, we blogged about music producer Marion "Suge" Knight's arrest on suspicion of murder for allegedly running over two men with his car. One of the men died. Today, a Los Angeles judge revoked Knight's bail, which had been set at $2 million. The Los Angeles County Sheriff's Department claimed that Knight was a flight risk. Under what circumstances can a judge revoke bail? Flight Risk, Criminal History, Danger to Others Bail, of course, is security ensuring that a defendant will come back to court for his trial. Instead of remaining in jail pending, and during, trial, a defendant can pay 10 percent of the bail amount to a bail bondsman, who promises the court that the defendant will appear. Bail schedules are set by law and are roughly proportionate to the offense committed. Knight's bail of $2 million is on the highest end of the amount a judge can require in California. A judge can revoke bail or set a particular bail amount for a number of reasons, but bail is typically revoked when a defendant, who's out on bail already, commits another crime. That didn't happen in Knight's case, but the district attorney apparently thought Knight was enough of a risk that he asked for bail to be revoked during Knight's plea hearing. The California Penal Code allows a judge to consider such things as the defendant's criminal history, the maximum sentence he could face, the danger to others if the defendant is out on bail, and the way the crime was committed. There's one instance where a judge can't release a defendant on bail at all: When a defendant is charged with a capital crime and "the proof of his or her guilt is evident or the presumption thereof great." In order for that to be true, though, the defendant would basically have to be found at the crime scene with the bloody knife. In Knight's case, however, there's at least a dispute about what happened and whether Knight accidentally or intentionally ran over the victim. Check All the Boxes In Knight's case, the sheriff's department and prosecutors asked the judge to revoke bail not only because of the risk that Knight might flee the jurisdiction, but also that he might intimidate witnesses while he's out. The possibility of forfeiting $2 million might not be enough of an incentive to stay in Los Angeles, given that a guilty verdict could mean life in prison, thanks to Knight's criminal history. Knight served five years in prison for beating up a rival of Tupac Shakur on the same night that Shakur was killed while driving in Knight's car. Knight went to prison in 1997 for violating the terms of his probation, was released on parole, then went back to prison in 2003 for violating parole by hitting a parking lot attendant. Related Resources: Suge Knight Charged With Murder in Fatal Compton Hit-and-Run (Los Angeles' KABC-TV) Failure to Appear in Court: What Can Happen? (FindLaw's Blotter) After Arrest, How Long Until a Bond Hearing? (FindLaw's Blotter) Wiz Khalifa Skips Court Hearing on Pot Bust; Arrest Warrant Issued (FindLaw's Celebrity Justice)
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What Do Federal Child Abuse Laws Say? 3 Things You Should Know

In addition to state laws prohibiting child abuse, the federal government has its own laws meant to protect children from neglect and other forms of abuse. These laws include minimum child welfare standards to which the states are required to conform. However, a recent three-year study by the Children's Advocacy Institute found that none of the states are actually meeting these standards, NPR reports. What do federal child abuse laws require? And what did the study find when it comes to enforcement of these laws at the state level? Federal Child Abuse Laws As the Department of Health and Human Services explains, federal child abuse laws are found primarily in two sources: the Child Abuse Prevention and Treatment Act and the Social Security Act. What should you know about these laws? Here are three quick facts: The Child Abuse Prevention and Treatment Act was enacted in 1974 and established the federal Office on Child Abuse and Neglect. It also provides grants to states for child abuse and neglect programs that meet certain federal standards. The Act also sets the minimum definition of child abuse and neglect as "Any recent act or failure to act on the part of a parent or caretaker which results in death, serious physical or emotional harm, sexual abuse, or exploitation," or "An act of failure to act which presents an imminent risk of serious harm." The relevant portions of the Social Security Act further established federal child welfare oversight of state welfare policies and practices by the Department of Health and Human Services, including the collection of child welfare statistics and the administration of child welfare information systems. Report's Findings According to the Children's Advocacy Institute's study, over a three-year period, no state met the federal child welfare standards, but the Department of Health and Human Services, which is responsible for enforcing these rules has largely taken a hands-off approach. "There is no meaningful oversight and the states know it," the report asserts. The report estimates that at least 686,000 American children were the victims of abuse or neglect in 2012, including 1,640 who were killed as a result. The report suggests that Congress should require HHS to take punitive action against states that don't follow federal regulations and sanction the executive branch, of which the HHS is a part, if it fails to meet its regulatory responsibilities. Related Resources: Federal government failing to protect children, report says (The Associated Press) What To Do if You Suspect Child Abuse (FindLaw's Blotter) Meth-Related Child Abuse Cases on the Rise? (FindLaw's Blotter) Adrian Peterson Indicted on Child Abuse Charges; Freed on Bond (FindLaw's Tarnished Twenty)
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What Is Resisting Arrest? Are There Any Defenses?

What is resisting arrest, and what defenses can potentially be used to defeat the charge? A San Francisco public defender was arrested Wednesday after she refused to let police photograph her client in a court hallway. Notably, a police officer told her before she was placed in handcuffs that she would be arrested for resisting arrest. Eventually, Deputy Public Defender Jami Tillotson was arrested, though a cellphone video shows that, far from "resisting," she let police cuff her and lead her away. So how can she be prosecuted for resisting an arrest that hadn't happened yet? Calif. Penal Code Section 148: It's More Than Just Arrest The statute in question, California Penal Code Section 148, isn't limited just to resisting arrest, even though that's the shorthand name for it. Like similar laws in other states, it prohibits "willfully resist[ing], delay[ing], or obstruct[ing] any public officer, peace officer, or an emergency medical technician ... in the discharge or attempt to discharge any duty of his or her office or employment." Any action a person takes that impedes an officer -- even standing in his way -- could qualify. Resistance isn't limited to just physical contact. It can be verbal, as in a person's refusal to identify himself or herself during booking at the police station. It can also be a passive act, like going limp when being arrested. As one California appellate court observed, "[A] person who goes limp and thereby requires the arresting officer to drag or bodily lift and carry him in order to effect his arrest causes such a delay and obstruction to a lawful arrest" as to violate the statute. Potential Defenses Some potential defenses to resisting arrest include proving that you were not resisting, or that you were acting in self-defense against an officer's unreasonable use of force. Another defense is the claim that the arrest wasn't lawful in the first place. Courts have held that, although people are required to submit to a lawful arrest, an officer making an unlawful arrest isn't discharging a duty of his or her office because police don't have the right to make unlawful arrests. California, however, closed this little loophole -- which has existed since English common law -- by enacting a separate statute making it a crime to resist any arrest, lawful or not. The only exception to the other statute, Penal Code Section 834a, is that a person can use force to protect himself from death or injury from an officer's use of excessive force. Even if a person thinks an arrest was unlawful, that question is ultimately up to a judge to decide, and if the judge decides it was lawful, then the arrestee can be hit with these other violations. Was This Really a Crime? The burning question is whether Tillotson was obstructing an officer's performance of his duty. That part isn't entirely clear and would hinge on whether photographing a person who's not detained or arrested is a "duty" (which the dictionary defines as "obligation").This question will probably never be answered, though, as it's unlikely the San Francisco District Attorney would make such a huge P.R. blunder as charging a public defender for trying to do her job by advising her client. Related Resources: Browse Criminal Defense Lawyers by Location (FindLaw) 2014 in Review: Top 5 Blog Posts About Dealing With Police (FindLaw's Blotter) Resisting Arrest: Dad Reportedly Tells Kids to Bite Officers' Faces Off (FindLaw's Legally Weird) Staged Child Abduction Triggers Investigation, Outrage (FindLaw's Blotter)
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Can Your Car’s Paint Job Get You Pulled Over?

Most people are well aware that driving too fast or in a reckless manner is likely to get you pulled over. But a car's paint job may also attract the attention of law enforcement. It's not against the law to have a crummy paint job or to paint your car an especially obnoxious color. Fortunately for most of us, the fashion police have not yet been granted the same power as the actual police to make arrests. So how can your vehicle's paint job get you pulled over? Seeing Red? You've likely heard the conventional wisdom that driving a red car is likely to result in being pulled over by law enforcement more often than driving a car of a different color. And at first blush this makes sense: Red is the quintessential "sports car" color, the furious hue of the Ferraris and Corvettes and other high-priced vehicles built to be driven well over the speed limit. However, this theory is nothing more than an urban legend, according to Snopes.com. Police have long denied that the color of a car matters in attracting their attention. And statistics show that overall, it's the kind of car you drive, regardless of the color, that affects the likelihood of getting a ticket, reports Forbes. Drivers of sporty import models like the Volkswagen GTI and the Mercedes Benz CLS-63 are more than twice as likely to be cited compared to the average driver. Paint Jobs That Can Get You Pulled Over Although a red car in and of itself won't necessarily get you stopped, there are other paint schemes that will make it more likely that you may be stopped and even cited for a violation.For example, cars that have been "murdered out" -- with black paint, black-tinted windows, black wheels, and even tail lights painted black -- may lead to traffic stops and citations, as "Keeping Up with the Kardashians" star Kylie Jenner recently found out. This isn't necessarily due to the paint job itself, but rather the dark tinting on windows and lens covers. Elaborate paint schemes may also be run afoul of the law if they too closely resemble those used by law enforcement. You may recall that a Massachusetts man was cited for impersonating a police officer after painting his Maserati to resemble the police car robot from the "Transformers" movies. (The charge against the driver was later dropped, according to Boston magazine.) If you've been cited for your car's paint job, a lawyer who specializes in traffic tickets can help explain your legal options for fighting the ticket in court. Learn more about traffic stops, traffic tickets, and going to court at FindLaw's section on Traffic Laws. Related Resources: Browse Traffic Ticket Lawyers by Location (FindLaw) The Top 5 Illegal Car Modifications (FindLaw's Law and Daily Life) Are 'Blue' Xenon HID Headlights Legal? (FindLaw's Law and Daily Life) Are Unmarked Police Cars Legal? (FindLaw's Blotter)
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