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Can Victims of a Mass Shooting Sue the Government?

The best answer is, it's unlikely. True, litigants sue the government every day, over alleged civil rights violations, controversial laws, run-of-the-mill personal injury claims against government agencies and employees, and more. The real question is usually less about whether you can you sue the government, and more about the likelihood of success. Suing the Government Is an American Tradition Overall it's fairly common to sue the government. Special needs students may challenge a school district's educational offerings. People deprived of their rights by government policies may challenge those policies in court. Even ordinary claims for money damages -- arising out of personal injury, death, or property damage -- can be litigated before an administrative agency or judge. What's less certain is what happens in exceptional cases. Most (successful) lawsuits against the government rely on recognizable claims, alleging violations of well-accepted rights or duties, seeking relief for identifiable injuries or losses. Suing the postal service after a mail carrier crashes their mail truck into your house, for example, is pretty routine. But lawsuits based on novel legal theories, expanded notions of rights, or for damages that are difficult to ascertain are a different matter. They're not impossible. Some of the most celebrated cases in legal history were filed on a prayer. Mass shooting lawsuits fall into that bucket. What About Mass Shootings? The obvious person(s) to sue is the person(s) responsible for resulting injuries. The reality is that they're often judgment proof. And it's unusual for courts to find someone else -- even governments -- legally liable for their crimes. Maintaining safe premises in schools or office buildings is one thing. Responsibility for someone else's intentional, criminal acts enters into a different realm. Related Resources Find a Civil Rights Lawyer Near You (FindLaw's Lawyer Directory) Can A School Be Sued for a Shooting? (FindLaw's Injured) Injury Claims Against the Government (FindLaw's Learn About the Law) Kids Around the World are Suing Their Governments for Ruining the Planet (Quartz)
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Model Can Seek $1.5M for HIV Ad Featuring Her Image

Those that ascribe to the "any PR is good PR" mantra might be tempted to tell a model that any use of her image would be a good use. But what about a use that implies she is HIV positive? That happened to model Avril Nolan after New York's Division of Human Rights ran a full-color, quarter-page ad featuring her face, beside the words "I am positive (+)" and "I have rights," all without her permission. Nolan sued, claiming the ad was defamatory and that the DHR violated state civil rights laws. And a state appeals court agreed, with the defamation part at least. Per Se Bad Publicity The court's ruling is a bit dicey, politically speaking. Nolan is claiming that the unauthorized association of her image with HIV is a particular kind of defamation per se. Normally, in order to succeed in a defamation lawsuit, a plaintiff must prove that the false assertion caused some tangible damage to her reputation. But some false statements are considered so damaging that they are deemed defamatory on their face, and don't require the same proof of damages. One category of defamation per se is an indication that a person has a "loathsome," contagious, or infectious disease. The state tried to argue that an association with HIV wasn't inherently damaging, highlighting recent cases where courts ruled that merely calling someone gay was not slanderous, and even pointing to celebrities like Charlie Sheen and Magic Johnson who remain popular despite publicly affirming their HIV-positive status. But the Supreme Court of New York's Appellate Division wasn't on board: Further, claimant, in countering the State's anecdotal evidence regarding public figures with HIV, cites several sociological studies establishing that HIV continues to be a significant stigma. For example, she cites to academic studies from 2014 and 2015 that conclude that people fear getting tested for HIV because of the perceived social repercussions of a positive result. Since it can still be said that ostracism is a likely effect of a diagnosis of HIV, we hold that the defamatory material here falls under the traditional "loathsome disease" category and is defamatory per se. So while the intent of the ad campaign might've been to reduce the stigma surrounding an HIV diagnosis, enough of that stigma still exists to make a false association regarding such a diagnosis defamatory. Rejected Civil Rights Claims Nolan also alleged the DHR's unapproved use of her photo violated state civil rights laws that prohibit the nonconsensual use of a person's image for commercial purposes. The appeals court was less sympathetic to this claim, finding "DHR was engaged in a decidedly noncommercial campaign designed to advance its mission of promoting civil rights." Still, Nolan may recover up to $1.5 million in damages for the emotional distress she says she suffered after publication of the ad. Related Resources: Find Defamation Lawyers Near You (FindLaw's Injured) What's the Difference Between Libel and Slander? (FindLaw's Injured) Invasion of Privacy: False Light (FindLaw's Learn About the Law) What Is Invasion of Privacy? (FindLaw's Injured)
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Overcoming the Obstacles to Women Becoming Equity Partners

Women attorneys are leaders in their practice fields, in their families and in their communities – but not in their law firms. Only about 18 percent of equity partners in major law firms are women, according to the American Bar Association’s 2017 survey. That’s remarkably little progress since 2006, when 16 percent of equity partners were women. Another sobering statistic: even “women-friendly” firms that recognize the importance of offering benefits like parental leave and flexible working hours have largely failed to promote women to leadership roles.  Of the 50 firms cited in Working Mother’s Best Law Firms for Women 2017 only 20 percent of all equity partners, on average, were women – the same as the last two years. So, how can more women ascend to the top ranks of major law firms? One initiative that bears watching is the ABA’s Resolution 113, which urges law firms and corporations to create more opportunities for diverse attorneys at all levels, and calls on clients to direct a greater percentage of the legal services they purchase, both currently and in the future, to diverse attorneys. Since passage of ABA 113 in September 2016, a growing number of Fortune 1000 companies have pledged their support, including Walmart whose general counsel, Karen Roberts, has been one of the leaders in promoting this initiative. Recent corporate additions to the pro-diversity list include HP, MetLife and Facebook, which now require 33 percent women and ethnic minorities on its outside law firm teams. It is unfortunate that we need a resolution to tip the scale on these inequities but at least this resolution serves to get to the heart of the issue.  The power or equity in a firm has always been and always will be driven by who controls the business, and this Resolution goes to the heart of that issue. In addition to addressing this push from clients, Big Law firms should look closely at their internal policies and practices to see how they can better tap the diverse pool of legal talent in their firms.  Along with offering family-friendly work-life policies, major law firms should offer a clear path to equity partnership, along with mentoring and coaching support for the firm’s future leaders, specifically as it relates to learning how to capture business.  Both women and men like to know the ground rules for moving up in the firm, and that there is a level playing field on all levels. The most important step in advancing gender parity – and one that is often not discussed in legal article or blogs – is the importance of fostering the marketing and business development skills that bring in new clients.  A woman who is seen as a “rainmaker” is far more likely to be considered for an equity partnership than one who plays a supportive role to her colleagues.  Having the economic power that comes with a robust book of business is the key to break through Big Law’s glass ceiling. If women lawyers continue to focus on that conversation, the numbers will follow. The post Overcoming the Obstacles to Women Becoming Equity Partners appeared first on Women Criminal Defense Attorneys.
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Alexandra Shapiro leads another victory at Second Circuit

Recently Alexandra Shapiro was successful in overturning the corruption conviction of Dean Skelos, a former New York state senator and majority leader.  Skelos and his son, Adam Skelos, had been charged in 2015 by the United States Attorney’s Office in the Southern District of New York (SDNY) with bribery, extortion and conspiracy relating to accusations that the father’s office pressured a developer, a medical malpractice insurer and environmental company to give his son consulting work that resulted in hundreds of thousands of payments. The father and son were convicted at trial in December 2015. Alexandra represented the ex-senator on appeal and another lawyer represented the son. Both convictions were overturned.  This isn’t the first time Alexandra has been victorious at the Second Circuit.  We have blogged about her seemingly golden touch before in a blog post, Alexandra the Great. The grounds for appeal were largely based on the United States Supreme Case ruling in McDonnell v United States which limited the application of the federal bribery statute 18 U.S.C. §201.  The Court ruled that an official act is a decision or action on a “question, matter, cause, suit, proceeding or controversy” and that it must involve the formal exercise of a governmental power, be something specific and focused that is “pending” or “may by law be brought” before a public official.  The Court clarified that setting up a meeting, talking to another official or organizing an event, without more, does not qualify as an “official act” per McDonnell. In the Skelos appeal, the panel found that the jury instruction given in the Skelos case was too broad, and considering the ruling in McDonnell, the definition of “official acts” provided to the Skelos jury could not be ruled harmless beyond a reasonable doubt. The Skelos appeal ruling was instant big news and reported in the New York Daily News and in the New York Times, where Shapiro was quoted as stating that Dean Skelos was grateful for the ruling and that “[w]e believe that as events unfold, it is going to become clear that this is a case that never should have been brought.” Joon H. Kim, the acting U.S. attorney for the SDNY has already indicated that the office intends to retry the father and son and was quoted in the New York Times as stating, “We look forward to a prompt retrial…” Oddly enough, even former U.S. Attorney Preet Bharara, who no longer would need to comment, felt compelled to weigh in on the ruling on Twitter. Regardless of what the future holds for this case, this victory lap is sweet and another well-deserved win for Alexandra Shapiro, who has her own firm Shapiro Arato, in New York City.  Alexandra continues to be at the center of many of the most influential white-collar appeals in this last decade and she continues to be a shining example of the great work that women are doing in our field. The post Alexandra Shapiro leads another victory at Second Circuit appeared first on Women Criminal Defense Attorneys.
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Opioid Lawsuits: What You Need to Know

As more and more people fall victim to opioid addiction, more and more lawsuits are being filed. States are suing drug companies, addicts are suing doctors, and the federal government is starting its own investigation into the crisis. But who's liable for opioid addiction? The addict? Doctors? Drug manufacturers? All three? Here's what you need to know about opioid lawsuits and addiction liability. 1. Can I Sue My Doctor for Opiate Addiction? Physicians owe their patients a duty of care, and can be liable for medical malpractice if their prescription of opioids -- either the dosage, the type of drug, or the failure to notice your developing addiction -- constituted a breach of this duty. 2. Can Doctors Be Liable for Patient Overdoses? As noted above, normally patient overdoses are dealt with in a medical malpractice claim, or, unfortunately, in a wrongful death claim. But in rare instances, doctors also have been charged with and convicted of murder in overdose cases. 3. Can You Sue a Drug Company for Opioid Addiction? Successful lawsuits blaming a drug manufacturer for addiction are rare; courts often find addicts liable for their own addiction and the drug companies too far removed from the use to be liable. But that could be changing in the opioid context. 4. Are Drug Companies Liable for Side Effects? Drug companies have a duty to warn of known dangers. So if you're claiming that a drug manufacturer knew how addictive an opioid was and failed to warn either doctors or patients, you may have a better shot at proving the manufacturer's liability. 5. Liability for Drug Overdoses Tragically, some addictions end in overdoses, and many of those can be fatal. Wrongful death lawsuits can look a little different than a standard medical malpractice or product liability claim, so it's important to know how liability may be different as well. If you or someone you know is dealing with an addiction to opioids, get help now. Then consider contacting an experienced personal injury attorney. Related Resources: Find Personal Injury Lawyers Near You (FindLaw's Lawyer Directory) Cherokee Nation Sues Walmart, CVS, and Walgreens for Opioid Abuse (FindLaw's Injured) West Virginia Counties Sue Drug Manufacturers Over Opioid Crisis (FindLaw's Injured) Ohio Is the Latest State to Sue Over Opioid Crisis (FindLaw's Injured)
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Teen Dies After Gym Teacher Refuses Asthma Inhaler Request

'When a child is in the school district, from the time they get there, the school is responsible for their safety.' So said attorney Jay Dorsey, who is representing the family of a 14-year-old girl who collapsed and died after a gym teacher refused repeated requests to retrieve her inhaler from her locker. The family has filed a federal lawsuit against the county board of education, the high school where it happened, and the unnamed gym teacher, charging them with civil rights violations, wrongful death, gross negligence, and negligence in hiring and supervising employees. Asthma Attack The incident happened in Montgomery County, Maryland, and Washington's NBC4 first reported on the lawsuit. According to the suit, Taylor Walton began having an asthma attack during gym class in November 2015, and asked the teacher twice to leave class and get her inhaler: A third time, Taylor again approached the John Doe Gym Teacher and stated that she was still having severe problems breathing and that she (was) leaving class to get her inhaler ... Thereafter, Taylor left the gym class. As Taylor was observed leaving the gymnasium, there were no efforts by Defendant Gym Teacher or other members of the gym staff to accompany her to her locker to help her get her inhaler or to secure her safety. Taylor was found by another school employee, collapsed on the steps outside the gym. Efforts to revive her by school staff and emergency responders were unsuccessful. School Board Breach According to the lawsuit, Taylor had suffered a prior asthma attack in the same gym teacher's class before, school officials we aware she suffered from asthma, and were required to distribute an "emergency treatment plan" to her teachers. Taylor's family is seeking $10 million from the Montgomery County Public School district. "The actions or omissions of the Defendant Board and its staff ... breached the duty owed Taylor," the lawsuit alleges. "Each individual breach by the Board and staff, or in concert with each other, was a substantial factor in proximately causing injury and then death of Taylor." Related Resources: Find Wrongful Death Lawyers Near You (FindLaw's Lawyer Directory) When Are Schools Liable for Student Injuries? (FindLaw's Injured) How Do You Sue a School District? (FindLaw's Injured) Max Gilpin School Football Death Suit Settles (FindLaw's Injured)
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$417M Judgment Against Johnson & Johnson in Latest Talc-Cancer Verdict

At this point, there have been so many lawsuits filed against Johnson & Johnson over its talc and baby powder products, and judgments against the company based on cancer caused by those products, it's becoming hard to keep track of them all. Luckily, Bloomberg did the work for us: J&J is facing "5,500 claims in U.S. courts, [and] has lost four previous jury verdicts in St. Louis for a total of $300 million." And you can add another verdict to that list, this one coming in California. A Los Angeles jury awarded Eva Echeverria $417 million after finding J&J liable for not warning about the cancer risk in its baby powder products. Problem All Over the Country "J&J needs to see they not only have verdicts against them in St. Louis, they now also have them in Los Angeles," Echeverria's attorney Mark Robinson said. "There's a problem all over the country with women using talcum powder on daily basis for 10, 20, 30, 40 years." The 62-year-old woman began using the talcum powder products when she was 11 and was diagnosed with ovarian cancer in 2007. Of the total award, the jury charged Johnson & Johnson with $347 million in punitive damages. While J&J has and continues to defend the safety of its Baby Powder and Shower to Shower talc-based products, various lawsuits have cited studies linking talc to ovarian cancer and accused the company of failing to adequately warn customers of the risk. Denying the Obvious Most damning of the allegations against J&J revolve around what the company knew and when. According to one lawsuit, the Cancer Prevention Coalition notified Johnson & Johnson's CEO in 1994 that studies showed using talcum powder in the genital area posed "a serious risk of ovarian cancer." And the AP has reported on an internal memo in 1997 from a Johnson & Johnson medical consultant said "anybody who denies" the risk of using hygienic talc and ovarian cancer is "denying the obvious in the face of all evidence to the contrary." The latest judgment against J&J may be the latest and one of the largest, but it's far from the first and likely far from the last as well. Related Resources: Find Personal Injury Lawyers Near You (FindLaw's Lawyer Directory) Talcum Powder Lawsuit: When to Sue J&J for Wrongful Death (FindLaw's Injured) Can Using Talcum and Baby Powder Really Cause Cancer? (FindLaw's Injured) Talcum Powder May Increase Ovarian Cancer Risk in African American Women (FindLaw's Injured)
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ACLU Settles Lawsuit Against CIA Torture Psychologists

Much was made of the 'enhanced interrogation techniques' employed by the U.S. military and contractors in terrorism investigations. Often considered torture, the interrogation program was at the center of an American Civil Liberties Union lawsuit filed against the alleged architects of that program, on behalf two men subjected to those techniques and the family of one man who froze to death in a CIA prison. In what the ACLU says is a first for lawsuits involving CIA torture, the two defendants in the case, psychologists James Mitchell and John "Bruce" Jessen, have agreed to settle the lawsuit, for an undisclosed amount. Enhanced Interrogation "Government officials and contractors are on notice that they cannot hide from accountability for torture," said director of the ACLU National Security Project Hina Shamsi in the wake of the settlement. "Our clients' groundbreaking case has changed the legal landscape. It showed that the courts are fully capable of handling lawsuits involving abuses committed in the name of national security." Due to issues of immunity and fears of classified information being made public, the case was set to be the first of its kind to go to trial, perhaps because the Justice Department did not try to block it. Although both Mitchell and Jessen continue to claim that the abuse suffered by Suleiman Abdullah Salim, Mohamed Ahmed Ben Soud, and Gul Rahman, and Rahman's death, all occurred without their knowledge. But in an earlier ruling in the case, the court found "The evidence would support a finding Defendants designed the [enhanced interrogation techniques] to be used on detainees, and thus they clearly had knowledge they would be so used." Brutal and Ineffective Those techniques embodied an effort to a state of "learned helplessness" in captives that would remove any resistance to interrogation. According to Dr. Jessen's deposition in the case, he and Dr. Mitchell were tasked with coming up with those techniques, which included sensory and sleep deprivation, shackling for hours in uncomfortable positions, and waterboarding. "Jim and I went into a cubicle," he said. "He sat down at a typewriter and together we wrote out a list." The interrogation techniques developed by the doctors were ultimately found to be brutal and ineffective, but caused lasting pain and suffering to those subjected to them. Related Resources: Find Personal Injury Lawyers Near You (FindLaw's Lawyer Directory) Police and School Sued After Interrogated Teen Commits Suicide (FindLaw's Injured) What You Need to Know About Suing the Police (FindLaw's Injured) Chiquita Terrorism Lawsuit: Murder, Torture (FindLaw's Injured)
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Connecticut May Soon Employ Deadly Police Drones

A Connecticut bill that originally focused on simply banning all weaponized drones recently had a controversial exemption carved out that's garnering national attention. That controversial legal exemption to the ban on weaponized drones would only apply to law enforcement agencies, allowing only police in the state to use weaponized drones. While it may seem logical to only allow police to use weaponized drones, if the bill passes, it would be the first law in the nation that actually authorizes police to use drones equipped with lethal weapons. North Dakota passed a law in 2015 that permits law enforcement to use drones equipped with non-lethal weapons like tear gas or pepper spray, and other law enforcement agencies use drones for surveillance purposes. Standard Drone Protocol If the bill passes, the state's law enforcement training council will be required to devise a standard operating procedure for when and how law enforcement can use weaponized drones. The bill itself contains some regulations regarding drone use, but leaves the specifics on training and use to be determined by the council. This type of regulatory framework will allow some leeway in how law enforcement use drones as the technology advances over time. Proponents have rallied their support around the contention that allowing law enforcement the right to use weaponized drones could help stop a terrorist attack, or other serious threat. However, there are equally strong contentions that allowing the use of drones will result in civil rights violations against certain segments of the population, as well as misuse by police. Police Drones While there have been plenty of other concerns raised about law enforcement's use of drones, particularly when it comes to surveillance and searches, equipping drones with weapons is a new frontier for policing. Although there is clearly a benefit to sending in a robot over a human in a situation where gunfire is likely to be exchanged, anyone who's seen RoboCop or any other similar fictional work involving robotic police, is aware of the ethical dilemma that can be expected when the human element is removed from policing. Related Resources: N.D. Farmer Convicted in 1st Domestic Drone Case (FindLaw Blotter) No First Amendment Right to Drone Surveillance, Conn. Court Holds (FindLaw's Technologist) Who's Afraid of Domestic Drone Strikes? (FindLaw's Law and Daily Life) Drone Operator Attacked: Are They the New 'Glassholes'? (FindLaw's Legal Grounds)
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So You Married a Criminal? 3 Legal Tips

While accidentally marrying a criminal sounds more like the subject of TV drama (or comedy) than a real life occurrence, it does happen in real life. Unfortunately, even when a person marries a criminal on accident, there could be real life consequences. Most often, legal consequences for uninvolved spouses stem from organized, or white-collar, criminal activities. For instance, spouses that agree to put things in their names, or sign checks, or take other relatively passive roles, can find themselves looking at actual jail time. Alternatively, spouses that merely reap the financial benefits, completely passively, without being involved at all, can usually expect to minimally have those benefits seized and forfeited. Here are three legal tips on what to do if you accidentally marry a criminal: 1. Annulment May Be Possible If you were tricked into the marriage, you may be able to qualify for an annulment based upon fraud. Unlike a divorce, an annulment will dissolve a marriage and treat it like it never happened. There may be some complicated issues when it comes to separating joint property, but it could potentially protect an innocent spouse from liability. State laws differ about how and when a person will qualify for an annulment, but generally state laws require a showing that the innocent spouse materially relied on a significant misrepresentation in agreeing to marry. If an annulment isn't possible, divorce or legal separation can be pursued. 2. Consult and Retain an Independent Attorney So long as you are not actively involved in the criminal enterprise, you can consult with an attorney on how to keep on the right side of the law. Depending on your situation, this may involve legal separation, divorce, annulment, or maybe not. If you get involved with the criminal enterprise, an attorney will not be able to assist you in continuing to break the law, but may be able to help keep you out of trouble if you are arrested. It is also important to retain your own attorney, rather than rely on joint representation, particularly for a spouse that is not actively engaged. 3. Maintain Separate Accounts Maintaining sufficient separation of financial accounts may not be possible if the criminal enterprise is the sole source of income. However, if there are premarital assets, or you earn legitimate income, these should be maintained separately and diligently tracked. In the event that a criminal prosecution occurs against the criminal spouse, depending on the jurisdiction, being able to trace separate legitimate income may be what prevents it from being seized by the authorities. Related Resources: Find Family Law Attorneys Near You (FindLaw's Lawyer Directory) 5 Potential Ways to Get an Annulment (FindLaw's Law and Daily Life) What Is the Spousal or Marital Privilege? (FindLaw Blotter) How Marriage Annulments Differ from Divorces and the Grounds for Obtaining a Marriage Annulment (FindLaw's Learn About the Law)
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