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.
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Wednesday, September 28, 2016

Distracted Driving and the Liability of Cell Phone Manufacturers

One of my first jobs as a new lawyer in the early 1990s was representing insurance companies as an associate for a big law firm in product liability lawsuits. The injuries and deaths caused by ubiquitous machines like vehicles, presses and cranes were often horrific.

In some of the suits, the evidence involved whether safety mechanisms purposely had been subverted by the machine operator causing injury. Causation, an element of any tort suit, was the most litigated issue.

Should cell phone manufacturers be required to implement newly developed technology that can block drivers from sending or receiving texts on their phones? The family of a fatally injured distracted driving victim recently filed a lawsuit raising this causation issue.

Apple is named as a defendant in the suit. The pleadings reference a telematics patent granted to Apple that would lock-out a driver's ability to manipulate the phone while driving.

The technology uses sensors that determine whether the phone is moving and its exact location. If the phone is within the space of the driver's seat, certain functions, like texting, are disabled.

Although the patent was granted in 2014, it is unknown whether the tech giant has developed a product with the technology. In its 2008 application for the patent, Apple stated:
Texting while driving has become so widespread that it is doubtful that law enforcement will have any significant effect on stopping the practice. Teens understand that texting while driving is dangerous, but this is often not enough motivation to end the practice.
Some product liability experts have compared cell phone manufacturers to manufacturers of high-capacity magazine guns; they could choose not to manufacture those products but do so anyway.

Not all legal experts, however, agree with the concept of regulating the cell phone industry. The dangers of using a cell phone while driving is squarely placed with the individual driver.

Accordingly, the products liability lawsuit in Texas will likely be dismissed in a summary judgment for a fatal lack of causation. Regardless of the liability of the cell phone companies, we here at the Law Blogger urge you not to text while driving; let's keep everyone safe on our roadways.

Post #560

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Sunday, September 25, 2016

Blockbuster Hollywood Divorce Brings Out Heavy Hitters

Brad Pitt in the movie Snatch
News of the divorce between Hollywood A-listers Brad Pitt and Angelina Jolie lit-up the 24/7 news cycle last week. While not surprising that another blockbuster couple is calling it quits, the high-priced legal spokespersons on each side promised a pitched custody battle following rumors of allegations of mile-high child abuse on an apparently tension-filled international flight.

Rumors that Pitt is the subject of investigations by the FBI, California law enforcement, and child protective services are not panning out. The rumors attempted to frame the narrative for Jolie to get an edge in the upcoming custody battle.

One fact that has been confirmed is that Jolie filed for divorce seeking "sole custody" in her complaint for divorce. Seeking sole custody is an aggressive move in family court where most legal professionals presume joint custody is in the best interests of the minor child.

Not all cases are suitable for joint custody, however. When spouses cannot communicate for the sake of effective co-parenting, or when one parent is abusive to the other spouse or children, sole custody often results.

While various agencies seem to be deflecting queries about investigations, FBI involvement arose as a routine matter given the circumstances of a private jet entering US airspace from abroad. Acknowledging a role in the incident, the FBI's official line is that they have yet to decide whether they will launch an official investigation.

The real fireworks involve the lawyers the stars hired for this divorce. Jolie hired second-generation divorce lawyer Laura Wasser, the so-called "Disso Queen"; the queen of [marital] dissolution.

Charging $850 per hour, Ms Wasser claims Johnny Depp and a Kardashian [or two] among her clients. Used to clients who value their privacy, Wasser prefers to settle cases privately, outside the courtroom where they belong.

For his part, Pitt hired veteran Hollywood divorce lawyer Lance Spiegel, who has made his bones representing the likes of Charlie Sheen, Michael Jackson, and Heather Locklear among others.

To the extent that this famous split sheds light on the concept of legal and physical custody in a divorce, we will follow-up.

Post #559

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Monday, September 19, 2016

Property Rights of the Homeless

Across the nation, many of the larger U.S. cities have significant populations of the homeless. When homeless persons congregate in specific areas, in camps, local authorities often push back with the execution of clearing sweeps.

This occurred a few years ago in Ann Arbor in a camp known as "Camp Take Notice". Slab City California is another example of a collision between homeless persons with little property and state actors.

In these encampment sweeps, personal property of the homeless is removed to aid the reclamation and gentrification process. More often than not, the sweeps -a form of state action- go too far, too fast.

Over the years, the encampment sweeps by local governments have led to a series of constitutional challenges courtesy of the American Civil Liberties Union and other legal aid lawyers. The U.S. Department of Justice has stated that anti-camping ordinances cannot criminalize persons for being homeless.

In one of the encampment lawsuits, a federal judge in Seattle ruled last Friday that the property of homeless persons was removed by Clark County officials without a determination as to whether the property was abandoned or "owned" by the homeless.

The property taken included broken furniture, backpacks, medication, clothing, various documents and photographs. A leather basketball can be seen in the above photo, taken in March beneath I-90 in Clark County, near Vancouver. When homeless, such implements can be vital to your survival.

In relevant part, the Fifth Amendment to the United States Constitution states that, "[n]o person shall be ...deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." Although not valuable, the property of the homeless was taken in Clark County without notice or any compensation, let alone just compensation.

Trial is scheduled for early October to determine the value of the property taken by the state actors in Washington. Settlement discussions continue between the former campers, their legal aid attorneys, and Clark County.

Stay tuned as the case could have local impact wherever municipalities attempt to outlaw camping via local ordinance. We will keep you posted.


Post #558

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Saturday, September 17, 2016

Four Decoy Apps that Hide Content and Identity

Now that high schools are back in session, some students are taking measures to hide content and their identities on their cell phones. Students are able to accomplish this with the use of a certain group of apps.

A decoy app is an app that looks like one thing, but has a piece of code that allows the phone owner to click past the facade and access hidden -often taboo- content. Here are some examples that you may want to look out for if you are a parent that monitors the use and configuration of your high school student's phone:

Omegle

This free app allows a user to chat with complete strangers without the need to register. Participants are randomly paired together for chat sessions.

All participants thus are anonymous and difficult to track. This app is an excellent haven for predators.

Calculator%

The simple idea behind this app is that it looks like an ordinary calculator. A piece of code, however, allows the owner to hide content behind the calculator.

Burn Note

Just as Facebook is passe for most people under 30-years old, high school students are more likely to turn to Burn Note rather than Snapchat. The two apps are similar: content -pics or messages- is only visible for a short time; then the content disappears from the device.

Audio Manager

This app operates like Calculator%: it masquerades as a benign chunk of code used to manage a user's audio settings. The true function of the app, however, is to store data that the user does not want anyone to see.

If you are taking the time to monitor your student's cell phone use and configuration, keep an eye out for these apps. You may want to have a discussion with your child about these apps and about the dangers of distributing inappropriate content and of course, chatting with strangers.

Post #557

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Tuesday, September 6, 2016

Equal Protection May Yet Prove Difficult for Same-Sex Married Couples

Texas Justice John Devine
If you are like us here at the Law Blogger in our post-Obergefell world, you may be thinking that the battle for marital equality was resolved a bit too swiftly and easily. Well, hold onto your hat because here comes the fall-out.

Disputes over how far the newly-minted marital equality right should go will likely be fought in the equal protection context. A plethora of state and local laws are on the books -or will be passed in the upcoming years- that are designed to limit marital equality.

For example, Justice John Devine of the Texas Supreme Court wrote a strong dissenting opinion last week in an application for leave to appeal, stating that while marriage is a fundamental constitutional right, spousal benefits for [same-sex] married employees are not.

His dissent arose in a case that challenged a City of Houston charter provision that provided for spousal benefits to same-sex couples despite a state law prohibiting such benefits. Apparently, the law has not been wiped-off-the-books yet in Texas despite the SCOTUS Obergefell ruling.

The plaintiffs in the Texas lawsuit sought to enjoin the City of Houston from granting spousal benefits to employees with a same-sex spouse that were married in any state other than Texas. The trial court granted a temporary injunction against the city but the intermediate appellate court reversed on the basis of Obergefell.

While the Texas Supreme Court declined to grant leave for further appeal, Justice Devine had this to say about the appellate judges deciding the case:
Without substantial discussion or analysis, the court of appeals assumed that because the United States Supreme Court declared couples of the same sex have a fundamental right to marry, the Equal Protection Clause of the Fourteenth Amendment requires cities to offer the same benefits to same-sex spouses of employees as to opposite-sex spouses.
Justice Devine interprets Obergefell narrowly, opining that so long as a state law does not prohibit a same-sex couple from marrying, it can discriminate against such couples in any number of other ways. According to Justice Devine, laws affecting our fundamental rights receive "strict scrutiny" on appellate review; laws that do not impact a fundamental right are given more deference on review.

The analysis bleeds into the debate about the roles of the various branches of government: making laws, enforcing the laws, and interpreting laws. In this case, the question posed is: whether there is a legitimate state interest in classifying married couples by their gender in the context of government employee benefits.

In his dissenting opinion, Justice Devine points to the legitimate governmental interest in procreation as a basis for upholding the Texas law. He states:
Consider the State’s interest in encouraging procreation. The State may well have believed that offering certain benefits to opposite-sex couples would encourage procreation within marriage. After all, benefits such as health insurance provide financial security as couples decide whether to have a child. An opposite-sex marriage is the only marital relationship where children are raised by their biological parents. In any other relationship, the child must be removed from at least one natural parent, perhaps two, before being adopted by her new parent(s). This does not diminish any child’s inherent dignity, a fact the City presumably recognizes by extending benefits to their employees’ children regardless of the employees’ marital status. But it does explain why the State might choose to direct resources to opposite-sex couples. 
If a rationale-basis review is used -rather than strict scrutiny- then Justice Davis thinks the Texas law prohibiting employment benefits to same-sex spouses passes constitutional muster. Is he following the law handed down by the United States Supreme Court, or his own personal convictions?

Fortunately, the SCOTUS decisions in both Obergefell and Windsor contain robust equal protection components that require states to provide the same benefits to same-sex couples as they do for heterosexual couples.

This type of challenge to the variety of gender-based state and federal laws can be expected to take a quarter century to play out in the courtrooms across the country. In this case, the dissent, written by a justice -a married father of six- who was sued in 2004 for refusing to remove a painting of the Last Supper from his courtroom, expresses a personal conviction; it is not a statement of the law.

As this civil rights struggle continues, we will continue to report on the battles.

Post #556

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