Blogs > The Law Blogger

The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
For more information email: info@clarkstonlegal.com

Monday, August 31, 2015

Second Amendment Includes Tasers and Stun Guns

Tasers and stun guns are not just for law enforcement anymore. At least so says the Michigan Court of Appeals in a Taser case that arose out of Bay County Circuit Court.

Several years ago, our law firm represented a woman on appeal that was convicted of possession of a Taser. She would shoplift from retail stores and then, when she was ultimately chased-down and confronted by the loss prevention staff, or the unsuspecting employees of the store, she would fire-off her Taser.

Her convictions for retail fraud and assault were affirmed. But we're not so sure that her conviction for possession of a Taser would stand today.

That's because three years ago, the Michigan Court of Appeals decided People v Yanna, which invalidated our state statute making possession of a Taser or stun gun illegal. The Court of Appeals panel held that the statute was an unconstitutional violation of our right to carry and bear arms.

Fast forward three years, and we have the age-old concerns of gun control bumping-up against the constitutional right to bear arms. The conflict has played out in the national media with shooting massacres that erupt seemingly every month, and with police conduct under more scrutiny than ever before.

The Yanna panel had no problem defining a Taser or stun gun as an arm under the 18th Century definition of that term. The scope of the definition includes, "any weapon of offense or armor of defense." There is certainly no reason why a weapon of non-lethal force should not be included within that definition.

For its part, the Bay County Prosecutor asserted that Tasers were ill-suited for lawful defensive purposes; that they can be used to torture someone or to incapacitate an unsuspecting individual [like the loss prevention staff in our case]. When it comes to the Second Amendment and its Michigan constitutional counterpart, such an argument is unavailing and unpersuasive.

As the Court of Appeals noted, any weapon can be used to torture and maim; this is the nature, essence and potential of the thing. While we here at the Law Blogger do not have a problem with the inalienable right to bear arms bestowed upon each of us through the Second Amendment, we do look askance at how our fellow citizens are abusing this right by procuring guns for the sole purpose to kill innocent people.

The Second Amendment contains a very large assumption that weapons will be wielded purposefully and with just and proper cause. In today's world, as we see every day, that's a huge leap of faith.

We're beginning to think that it may be an intractable problem destined to be a prominent feature of America's legacy.

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Sunday, August 30, 2015

Transgender Jurist

Judge Phyllis Frye
Courtesy NYT
The front page of the Sunday New York Times occasionally provides grist for this blog's post-mill. Some Sundays, like today, we just cannot pass-up a good legal story; this one is straight out of Houston, Texas.

Judge Phyllis Randolph Frye, the equivalent of a municipal or district court judge, adorns today's Sunday NYT, above the fold in her black robe, confidently holding her gavel. Judge Frye is a transgender female; believed to be the first sitting jurist to publicly proclaim her gender reassignment.

While such socio-political headlines are, no doubt, perpetually at the disposal of the NYT's left-leaning editorial board, and while a headline like this morning's only comes on a proverbial "slow news day", the subject of transgender rights and discrimination is at the progressive cutting-edge of our nation's evolving civil rights movement.

Opportunities to advance the legal status of transgender individuals exist in the post-Windsor, post-April DeBoer world of marriage equality. Any real progress for transgenders, however, will be hard-fought, despite Caitlyn Jenner. Litigation is likely to arise from disputes at school and work, and from the intersection of state-provided benefits and entitlements.

Long before Caityin Jenner [in Vanity Fair] and Laverne Cox [in Orange is the New Black] re-branded the transgender lifestyle, Judge Frye was out there on the front lines being active for her cause, and paying the price. Her transgender status cost her everything most of us hold dear: family, employment, and happiness.

Being the only visible transgender judge in America has it's own kind of loneliness, to be sure. You have no real peers; community members that appear before you for sentencing will be tempted to vocally discount your authority, based solely on your appearance and well-known gender classification.

At one point, prior to earning a law degree and becoming a judge in 2010, Phyllis Frye was so depressed, she attempted suicide. As the NYT headline proclaims, the judge was once a pariah, shunned by the federal government, the department of defense, her profession, her father, mother and son, Judge Frye stuck with her life; stayed active, and eventually found value and a reason to live.

The NYT article describes the part-time judge's recent docket; a docket that would be the equivalent of a local district court judge here in Michigan: traffic tickets, criminal misdemeanors and landlord tenant disputes. Whether or not you agree with her "lifestyle", you have to admire her perseverance; she is an original and a survivor.

Only in America? Perhaps. But such issues will inevitably move through our democratic society and through our well-developed legal system. The fact that they do is a testament to the overall utility of that system.

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Thursday, August 20, 2015

Many Lawyers Revealed Among Ashley Madison Data Dump

Earlier this week, the dating website for cheaters, Ashley Madison, suffered a potentially terminal blow to its business model.  Hackers calling themselves Impact Team dumped 9.7 gigabytes of personal account information onto the Internet, including members' emails, phone numbers, birthdates, credit card information; even their sexual preferences.

Perhaps not surprisingly, there were many lawyers found among the 37-million paid members of the supposedly discreet dating site.  Of the legal professionals identified, the Above-the-Law blog claims there were federal judges, Big Law partners, a law professor, and several associates from Chicago's Baker McKenzie, one of the largest law firms in the world.

The New York Times got in on the drama by posting links to two separate websites that will assist those who desire to search for someone specific among the dumped data. Both the law blog and the NYT warn that much of the account data is false; apparently as many as 95% of the sites users were men and a large percentage of women's profiles on the site were fake. What a classic scam...

When Ashley Madison was initially hacked last month, the site was warned that customer data would be dumped in 30-days unless the company removed its website from the Internet.  When it did not do so, here is what Impact Team posted on Tuesday:


For its part, Avid Life Media, the Toronto-based Canadian company that owns the dating website, has been cooperating with law enforcement in Canada and the U.S.  Vowing to pursue the criminals that hacked its site, the company posted the following message on its website yesterday:
This event is not an act of hacktivism, it is an act of criminality. It is an illegal action against the individual members of AshleyMadison.com, as well as any freethinking people who choose to engage in fully lawful online activities. The criminal, or criminals, involved in this act have appointed themselves as the moral judge, juror, and executioner, seeing fit to impose a personal notion of virtue on all of society. We will not sit idly by and allow these thieves to force their personal ideology on citizens around the world. We are continuing to fully cooperate with law enforcement to seek to hold the guilty parties accountable to the strictest measures of the law.
One of the products available to the members of the dating website was a $19 option to scrub their profiles from the site's database. According to the NYT, Avid Life Media earned approximately two million dollars annually from customers availing themselves of the scrub-option. In the Impact Team's thorough hack, however, it was discovered that the data scrub option did not remove personal data from the site in many cases.

Privacy law has become a cutting-edge area of the law. We here at the Law Blogger wonder, is there any expectation of privacy for anyone key-stroking on the Internet?

No doubt, Internet privacy laws were broken in this data dump. Lawsuits and prosecutions will inevitably follow in the wake of this colossal hack.

On the upside, Internet-based businesses will use this hack as a case study to shore-up their security measures. This data breach has raised the bar of "best practices" that now must be taken in order to ensure the security of customers.

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Friday, August 14, 2015

Toledo Judge Refuses to Perform Same Sex Marriage

Since the SCOTUS made marriage equality a fundamental constitutional right in June, a handful of judges in Ohio have refused to perform civil wedding ceremonies. One judge in particular, Toledo Municipal Judge C. Allen McConnell, cited his deeply held personal Christian beliefs when refusing to marry a non-traditional couple.

Another Ohio judge now simply refuses to perform any wedding ceremonies. His position is that by refusing to perform this function of his job, he is at least treating all individuals in the same manner.

This has led to the issuance of a judicial ethics opinion from Ohio's Board of Professional Conduct. In sum, the opinion says that judges must follow the laws when executing their judicial functions and that they must do so impartially, without bias or prejudice, keeping their own personal views out of the process.

The ethics opinion states:
Judges are further advised that personal, moral, or religious beliefs should not be a factor ... and to be aware of the impact that a decision to decline to perform all civil marriages may have on the public’s perception of the judiciary.
This language suggests that simply refusing to perform a sanctioned function, i.e. marriages, is not a solution.

There will be many other instances in the courthouses, schools and workplaces across the country where marriage equality is not accepted by those in charge.  If you have experienced discrimination in this manner, contact our law firm to discuss your options.

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Wednesday, August 12, 2015

The Blogging Judge

Judge Richard Kopf
We've been at this blog since March 2009. Maintaining a blog, especially a law blog, is a labor of love. It takes hard work, there are critics, and sometimes you feel like you are writing for no-one.

But what if, when you start your blog, you are already famous, or have a position of power? That is the case of the blogging judge: Federal Judge Richard Kopf of Nebraska and his briefly run and recently shuttered law blog, Hercules and the Umpire.

Like it did to us here at the Law Blogger, it may strike some a touch indecorous that a federal judge, with all the power and responsibility surrounding that gig, would venture into the sweaty world of the blawg. Yet beginning with his first post in February 2013, this is precisely what Judge Kopf did.

The blogging road was rocky for Judge Kopf, as a sitting federal judge; not too many Article III judges are willing to put their opinions and analysis out there for public consumption beyond what they write in their official opinions, orders and judgments.

At one point last summer, the good judge, who truly and obviously liked to share his well-reasoned views on all things legal, considered throwing in the towel.  He reconsidered, however, after soliciting guidance from the blogosphere and from other sources, and continued to post-away on his beloved blawg.

Then, with the heat and passion of Election 2016 already engulfing the nation, Judge Kopf apparently went too far in one of his posts. What a difference a year can make.

The offending post commented on Republican presidential candidate Ted Cruz's proposal that SCOTUS justices should be subjected to "retention elections" every 8-years. Judge Kopf concluded that Cruz's apparently serious proposal rendered him "demonstrably unfit to be president".

Here's the problem: federal judges are proscribed via judicial canon from supporting or opposing candidates for public office.  Judge Kopf admitted as much in an apology he issued during a recent National Law Journal interview, acknowledging the Cruz post as his "most embarrassing error".

In addition to transgressing a judicial canon, Judge Kopf apparently was also under pressure to stop blogging from his colleagues on the bench. Following a summer retreat for employees of the Nebraska federal court which Judge Kopf did not attend, the subject of his blog was discussed by judges and employees alike. The chief judge made Judge Kopf aware of the consensus at the courthouse about his blog: it was considered an embarrassment.

Much to the disappointment of the legal blogoshpere, where many legal commentators and scholars found his dedicated effort to "keep it real" as very refreshing, and an excellent source of judicial perspective, Judge Kopf called it quits, and for good this time.

Interestingly, the judge's blog posts are still viable so his take on the legal issues of our day remain available for consumption, for now. It will probably be some time before another judge, especially an Article III judge, takes up the mantle of law blogger.

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Monday, August 10, 2015

Competing Marijuana Initiatives Seeking 2016 Ballot

Michigan has two groups actively seeking the requisite 250,000 voter signatures for placement of marijuana legalization proposals on the state-wide ballot in November 2016.

The first initiative, sponsored by the cumbersome Comprehensive Cannabis Law Reform Committee  favors the "home grow" option of marijuana production and would allow a home grower to possess all of the yield from a grow cycle. The non-commercial transfer of up to two and 1/2 ounces would be permissible and a system of regulated marijuana commerce would be created.

Competing with this is the proposal of the Michigan Cannabis Coalition which does not appear to have a personal possession limit. This proposal does, however, grant municipalities the option of passing local ordinances regulating home grown marijuana. Municipalities can ban home grown pot, or it can increase the default of two ounces of personal possession.

Both proposals envision a well-taxed system of commercial marijuana production. Both proposals have strong immunity from prosecution provisions of the type featured in our medical marijuana act.

It remains to be seen whether both proposals make it onto the ballot. According to an April poll, only 51% of Michiganders favors legalization; way too close to call. Generally, Democrats and younger voters favor legalization, while Republicans and older voters oppose legalization.

At least 7 other states likely will have marijuana legalization on their ballots next fall, including Ohio. Unfortunately, neither Congress nor the Obama Administration have been proactive in removing marijuana from Schedule 1 of the Controlled Substances Act.

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