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What Many People Don’t Understand About Attorney Billings and Consult Fees

Often times, a prospective client will call a law firm to speak with an attorney and become upset when the staff informs the prospective client that there is a fee for the consult. The client will typically respond that he just has “a question” for the attorney and that he shouldn’t be charged to simply ask a question. What the prospective client has failed to recognize is that attorneys, unlike many other professions/businesses, only have three things to sell: 1. their time; 2. their experience; and 3. their reputation.

An Attorney’s Time: When boiled down to the simplest form, an attorney only has his time to sell as a product. While some believe that only the pleadings and documents (complaints, motions, briefs, demand letters…etc) are an attorney’s product, the position fails to recognize that such is only a part of what an attorney does and provides to the client. Other aspects of representation include client meetings, research, drafting, and legal opinions/advice to prevent litigation, charging or issues with administrative agencies, just to name a few. When broken down into the simplest form, all of these are the result of the attorney’s time.

As stated by Abraham Lincoln, “A lawyer’s time and advice are his stock in trade.” Like many of other workers, they’re paid for the time they invest in a matter. Similarly, they expect to be paid for the time they devote to the client’s affairs. That time can’t be broken down into some free units and some that are charged for. You wouldn’t think of going into a supermarket with the idea that the first pound of cherries you can eat while shopping are free and you only have to pay for what you take home with you. Sure, you may pick one out of the bunch to see if they’re to your liking, and no one will complain, but you can’t sit there eating cherry after cherry.

Further, unlike most hourly employees, in addition to possibly being fired or having their license revoked for providing substandard work, attorneys, generally, have to maintain malpractice insurance, in case of providing a client with inadequate representation. Malpractice insurance, like all insurance anymore, is not cheap and the attorney risks being found negligent for malpractice anytime he/she answers just “a question,” in relation to the law. Further, like any other business, there are overhead costs for buildings, staff, healthcare…and the list goes on.

Due to the costs and an attorney only having his time to sell, consult fees become necessary for an attorney and the firm.

An Attorney’s Experience: Many clients are unaware of the difference in representation by an attorney that is experienced in a particular area of the law versus a general practitioner or an attorney whose hourly rate is less because of his/her lack of experience in that area of law. That experience, which generally results in a higher hourly fee, also generally results in fewer hours being spent on the matter, as the attorney is familiar with the process, procedures and individuals/entities involved. The outcome is a net gain for the client, as although he/she is generally paying the attorney at a higher rate, the attorney’s work product and results are generally obtained in much less time. The attorney’s experience also permits the attorney to provide the client with a more realistic opinion on the likely outcome and potential issues that could arise.

An Attorney’s Reputation: One of the most overlooked aspects of hiring an attorney is the attorney’s reputation. The old adage that “it’s who you knows, and how you knows’ em” could not be more appropriately applied to any other profession or occupation (except for politics). While the attorney’s reputation in the legal community alone can be a great benefit to the client, when the attorney’s experience and reputation in a particular field are combined, the net benefit to the client can be exponential.

As an example, an attorney who is well known for handling particular a type of matter before a particular administrative agency is much more likely to be able to resolve the matter absent a hearing or litigation, because the opposing party is well aware of the attorney’s capabilities. Further, the attorney’s experience and reputation can additionally benefit the client by opening doors that are otherwise not available because the attorney knows whom to contact to obtain the necessary documents or resolve the issue. This is not to suggest bribes or other such unlawful or immoral exchanges, but rather, to explain that having a command of the legal issue(s) and knowing the right person to contact in relation to the issue(s), as well as that person’s knowledge of the capabilities of the inquiring attorney, can result in the issue being resolved, without need for drawn out litigation or appeals.

In considering an attorney’s reputation, you should consider:

  • Does the attorney settle every case or is he willing to appeal inappropriate decisions and fight for your rights? Opposing counsel will handle their negotiations differently if their opponent’s reputation indicates that settlement offers are quickly accepted versus a reputation of insisting on full payment, even if it means taking the case up the appellate chain.
  • A judge, experienced with the attorney’s representation, will take the reputation into consideration in every decision made. Has the attorney always been honest and truthful with the court? If so, and that attorney requests a continuance for x reason, the judge is more likely to accept x as fact and grant the continuance. If another attorney has excuses every week, trying to avoid progressing with litigation will likely be denied the requested continuance.
  • Does the opposing counsel have respect for the attorney’s reputation? If so, they are far less likely to push meaningless issues or obstacles to moving forward. They know they must be reasonable in offers as the attorney is not afraid to litigate the case, and has done so many times in the past.       Essentially, is this the fight they want to pick.

But What About Free Consults?: Many attorneys still offer free consults, but it is important to understand the history of free consults and what is actually being offered.

The offering of free consults began, in part, as the law started to evolve into specialized areas, while attorneys were still general practitioners. The law began to evolve at such a fast pace through new statutes and case law that the general practitioner was unable to keep up with the changes and provide competent representation to his/her client. Attorneys didn’t want to be labeled as shysters for collecting a fee, just to tell a potential client that he/she couldn’t handle the legal issue of the client. And so, the offering of free consults came to fruition.

The free consult was an opportunity for the attorney to understand the legal needs of the client and advise the client as to whether he/she could competently represent the client. If he/she couldn’t, the client didn’t pay simply to be told that the attorney couldn’t handle his/her needs. On the other hand, if the attorney could competently handle the matter, the attorney would discuss fees for handling the legal issues.

What the attorney did not do is provide legal advice for free. If the client arrived with forms and questions as to how to fill them out, the attorney would not explain to client how to fill them out as part of the free consult. Rather, the attorney only advised the client as to whether there were valid issues and if so, estimated the time that would likely be involved in protecting the client’s interests. It also provided the client with the opportunity to meet the attorney, determine if the attorney understands the issues and possesses the required skills. This is no different today.

It’s Still Just A Question: For some, the above is meaningless, as we move further into an entitlement society. Unfortunately, at the end of the day, we all still have to put food on the table for our families, gas in our cars, and pay taxes to the Government. Contrary to popular belief, attorneys, much like doctors, are not making excessive salaries. A majority of lawyers are making between $40-$50k, while putting in 80-100hr workweeks. Moreover, the debt incurred to become an attorney, again much like doctors, is astronomical. And this is all before the overhead costs.

Just remember that next time you ask, while it may be “just a question,” an attorney has nothing more than his time, experience and reputation to sell and he/she, just like you, deserves to be paid for his/her time.

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UPDATE !! Body Art Establishment Regulation Act Passes the PA House of Representatives !

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By Tom Beveridge.      

Last year, I reviewed and outlined House Bill 1249 which seeks to regulate the tattoo and piercing industry in Pennsylvania.   See, http://blog.princelaw.com/2013/07/31/pennsylvania-legislature-seeking-to-regulate-the-tattoo-and-piercing-industry/ .   On Monday, May 5, 2014, the Bill passed the House of Representatives by an overwhelming vote of 181-16.   The Bill will now move on to the Senate for consideration.

This Bill, as written, will have a substantial impact on the tattoo and piercing industry in Pennsylvania.    I urge industry professionals to contact your legislators to discuss this Bill.    The text of the bill itself can be found here:  http://www.legis.state.pa.us/cfdocs/billinfo/billinfo.cfm?syear=2013&sind=0&body=H&type=B&bn=1249.

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Supreme Court Declines to Hear Challenge to NJ Carry Permit Statutes

By Allen Thompson, Esq.

On Monday, the United States Supreme Court declined to hear Drake v. Jerejian, a challenge to New Jersey’s carry permit regimen.  For more information on the case and the issues involved, see our previous blog article: “Case to Watch: Drake v. Jerejian.”

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Drivers Beware: Unconfirmed Anonymous Tips Now OK For Traffic Stop Basis

By Allen Thompson, Esq.

In a close case, Navarette v. California, 572 U.S.            (2014), the Supreme Court of the United States ruled 5-4 today that an anonymous 911 call may serve as the sole basis for a lawful investigative stop, even where responding police officers cannot confirm the material facts of the call.

In the summer of 2008, an anonymous caller reported being run off the road by a Ford F-150 heading south on Highway 1 and gave the operator the license plate number. Responding to the call, Highway Patrol officers located the truck a few minutes later, followed it for about 5 minutes, and then pulled the driver over. Notably, the officers did not observe any erratic driving. Approaching the truck, the officers smelled marijuana and discovered 30 lbs. in the bed of the pickup. At trial, the defendants moved to suppress the evidence on the basis that the stop was unlawful, since the officers only had an anonymous, unconfirmed tip of erratic driving. The evidence was admitted and the driver and his passenger were convicted. The Supreme Court today affirmed the convictions.

Typically, the police must have some confirmation of a tipster’s information before making the investigative stop. Confirmation of the material facts of the tip is even more important when the tip is anonymous. For example, the Supreme Court has held that where an anonymous tipster informed police that a particular vehicle was carrying cocaine, the fact that the tip described the car down to the broken headlight and was able to describe the future route of the car from a particular apartment complex to a particular hotel, the tip was reliable enough to provide the reasonable suspicion necessary for an investigative stop. Alabama v. White, 496 U.S. 325 (1990). On the other hand, where the anonymous tip could only describe an individual, his location, and what he was wearing, the tip was not considered reliable enough to provide reasonable suspicion. Florida v. J.L., 529 U.S. 266 (2000).

What is troubling with the Court’s decision today is the minimal amount of articulable facts an officer may now rely on for reasonable suspicion. As Justice Scalia points out in his dissenting opinion (a relatively short, but biting, dissent), the only thing that the police could confirm prior to pulling over the vehicle was that there was, indeed, a silver F-150 with a particular license plate driving south on Highway 1.

Of primary concern is that nothing about the truck’s behavior indicated any criminal activity; the vehicle did not swerve, veer, slow down, speed up, etc. This led Scalia to note that, not only was the tip not corroborated, it was actually discredited, for the police could actually observe that no criminal activity was occurring.  And yet, the Court found the tip convincing in that it identified a particular vehicle travelling in a particular direction on a busy highway. Scalia correctly notes that “everyone in the world who saw the car would have that knowledge, and anyone who wanted the car stopped would have to provide that information. . . . [T]hat generally available knowledge in no way makes it plausible that the tipster saw the car run someone off the road.”

That is precisely why this case is disconcerting. As of today, anyone with a grudge against a particular driver may anonymously call 911 and have that person stopped. Of course, it is a crime to falsely report criminal activity, but that only punishes the tipster; it does nothing to protect against the unreasonable search and seizure of the driver.  And if the driver happens to have something illegal in the car, he still must answer to the criminal charges.

It is unfortunate that the Supreme Court has now essentially declared that we are all under reasonable suspicion the moment any person, under the full protection of the cloak of anonymity, reports that we are criminals. Justice Scalia is entirely correct when he laments that “[T]his is not . . . the Framers’ [concept] of a people secure from unreasonable searches and seizures.” Indeed, it is not.

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Supreme Court Rejects Limits on Total Political Contributions

By Allen Thompson, Esq.

Today, the Supreme Court of the United States struck down the limitations on the total amount of money an individual can contribute to the entire political process. McCutcheon v. FEC, 572 U.S.      (2014), concerned the aggregate contributions an individual can make to all political candidates within a specified amount of time. The case did not address the limits to contributions to particular candidates. Writing for the Court, Justice Roberts broke the case down along the typical First Amendment analysis: (1) is contributing money to the political process protected conduct, i.e. a First Amendment issue; (2) does the Government have a compelling interest in limiting that conduct; and (3) if the Government has a compelling interest, did it narrowly tailor its limitation to address its interest?

The Court found that an individual does have a First Amendment right to contribute money to the political process. Noting that while

[m]oney in politics may at times seem repugnant to some . . . so too does much of what the First Amendment vigorously protects. If the First Amendment protects flag burning, funeral protests, and Nazi parades [all examples from prior Supreme Court cases] . . . surely it protects political campaign speech despite popular opposition.

Slip op., at 2.

Prior to the Court’s decision, once the aggregate limit was reached, the donor was prohibited from further contributions. In other words, the aggregate limits restricted the frequency with which a person may exercise his First Amendment rights to expression and association. The Court rightly held that the

Government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse.

Slip op., at 15.

The Court then analyzed the Government’s compelling interest, finding that preventing corruption in the political process was a compelling interest, at least so far as “corruption” was defined as quid pro quo contributions.

Campaign finance restrictions that pursue [other ends] . . . impermissibly inject the Government ‘into the debate over who should govern.’ And those who govern should be the last people to help decide who should govern,

wrote J. Roberts. Slip op., at 3.

The Court also found that the aggregate limits were not narrowly tailored. In other words, the aggregate limits were not closely enough related to preventing corruption to justify the infringement on First Amendment rights. In essence, the Court found that the aggregate limit ultimately restricts how many candidates the donor may contribute to and does nothing to prevent corruption. Justice Roberts wrote that

under the dissent’s view, it is perfectly fine to contribute $5,200 to nine candidates but somehow corrupt to give the same amount to a tenth.

Slip op., at 19. While the Court spent considerable time discussing the Government’s argument that an individual could circumvent the contribution limits to individual candidates by donating through other vehicles, it ultimately ruled that the current statutory restrictions on the total amounts an individual may contribute to any one candidate, committee, or PAC adequately protected against quid pro quo corruption.

In perhaps the most unsettling portion of the Opinion, Justice Roberts addressed the dissenting opinion and firmly rejected it. Roberts rightly dismissed the dissent’s troubling assertion that the “public’s interest” in “collective speech” could trump the free speech rights of the individual. Justice Roberts pointed out that the collective is the majority and that the majority can easily suppress minority speech by passing laws such as the one at issue here. Hence, the purpose of the Amendment in the first place (no pun intended). In refuting that view, J. Roberts wrote:

The First Amendment does not protect the government, even when the government purports to act through legislation reflecting ‘collective speech.’

Slip op., at 17.

While the Opinion is sure to upset many people, given the reaction to Citizens United four years ago, the ruling is firmly rooted in the core of the First Amendment’s protections. While acknowledging the corruption in politics and the worthwhile goal of preventing that corruption, the Court was able to see through the façade of the corruption argument and focus solely on the First Amendment issues at play: namely, that politicians cannot, after election, enact legislation to restrict others’ access to the political process. Politics is fraught with corruption – restricting citizens’ access to the arena will not increase it.

 

Prince Law Offices is dedicated to preserving the First Amendment rights of all individuals, as well as every one of our constitutionally protected rights. If you believe the government – be it local, state, or federal – has infringed upon your rights, call us at 888-313-0416.

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The Constitutional Right Against Self Incrimination Applies Even to the PA Game Commission

By Tom Beveridge

Jack Coble of Perry County believes in his constitutional rights.   In fact, he spent thousands of dollars to fight a citation he received from a Pennsylvania Game Commission officer – and he won!

On November 7, 2012, a Deputy Wildlife Conservation Officer Steven Shaffer entered Mr. Coble’s farm to investigate a tip about “jacklighting” deer on his property.   Jacklighting is an illegal method of spotlighting and shooting deer at night.   Mr. Coble was home recuperating from serious hand injury when he was questioned by the deputy.   He denied any knowledge of such activities, but left his home to drive around his 120 acre farm followed by the deputy.   When they arrived at the barn, the deputy and Mr. Coble came upon his daughter and another man with the carcass of a deer.

As reported by the Associated Press, Deputy Shaffer testified that Mr. Coble became “irate” at this point and ordered him off of his land.   Apparently, the deputy did not leave as requested, but testified that, when things “calmed down, he [Mr. Coble] admitted to being present when the deer was shot.”   Thereafter, Deputy Shaffer apparently cited Mr. Coble with a summary charge of the fourth degree (the fine totaling $150) under section 2126(a)(6) of Title 34 of the Game and Wildlife Code.   This section states that it is unlawful for any person acting under the provisions for “destruction for agricultural protection” – an assumption apparently made by the deputy – to “refuse to answer, without evasion, upon request of any representative of the [PA Game] commission, any pertinent question pertaining to the killing or wounding of any game or wildlife killed or wounded, or the disposition of the entire carcass or any part thereof.”  Deputy Shaffer believed Mr. Coble was “being evasive” and, therefore, cited him under this section.

Mr. Coble hired Donald Zagurskie, Esquire, to defend him against this charge.   Attorney Zagurskie successfully argued that it is a violation of Mr. Coble’s Fifth Amendment right against self incrimination to cite him for not answering or evasively answering questions of the deputy.   In fact, this section of the Game Code effectively forced Mr. Coble to answer the deputy’s questions or be punished at the discretion of the officer.

In what this attorney calls a very commendable act, the Perry County Prosecutor handling the matter agreed with Attorney Zagurskie’s argument stating that it certainly had merit and did not contest Mr. Coble’s appeal.   Although the Prosecutor, believed to be Daniel Stern, Esquire, notified the Game Commission and Attorney General’s office of his decision not to contest the appeal, neither office initiated any actions to intervene in the matter or pursue the matter further.

So, what does this mean for Pennsylvania sportsmen?  While this section of the Game Code is very narrowly applied, it means that you should not be intimidated by Fish or Game Wardens who tell you that you must answer their questions or face a penalty.   It means that you have a Constitutional right against self incrimination and a right to consult an attorney.   I strongly suggest that anyone who is questioned by any such officers be very respectful to their authority, but never be intimidated or forced to answer questions.  Simply advise the officer that you wish to consult with your attorney before answering any further questions – regardless of the circumstances!   You should feel free to contact our office at any time – day or night – and use our emergency number to obtain legal advice, and, if necessary, legal representation to protect your rights.  Call us anytime, toll free, at 888-313-0416.  Not only are we devoted to protecting your Second Amendment rights, but ALL of YOUR Constitutional Rights!

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Case to Watch: Drake v. Jerejian

By Allen Thompson, Esq.

UPDATE: The Supreme Court, on Monday, denied the petition, declining to accept the case for review.  No opinion was issued as to the denial.

UPDATE: The case has been distributed for today’s conference.

UPDATE: The docket now reflects that Respondents have timely filed their response.

The Supreme Court of the United States has decided not to hear several important firearms rights cases this year, setting aside such issues as: whether a concealed carry permit-holder residing at a house creates an exigent circumstance in which police do not have to announce their presence, and whether a 10-round magazine, deemed protected by the Second Amendment, can be prohibited as a safety measure.  However, one case is still standing and the Supreme Court is still receiving briefs on the merits.

 Drake v. Jerejian, Docket No. 13-827 (which started out life as Drake v. Filko), challenges New Jersey’s impossibly restrictive carry permit requirements.  In order to gain a carry permit in New Jersey, one must first demonstrate “justifiable need.”  To many people’s surprise, one can only show “justifiable need” in one of two ways: a specific threat against the person, or a significant enough history to demonstrate that need.  In addition, one must show that carrying a firearm is the only way to prevent harm from the attack.  Once local law enforcement signs off on the permit, an applicant still needs approval from the New Jersey Superior Court.  And, as Mr. Drake found out, even if the local law enforcement authorities grant the permit, the New Jersey State Police is still likely to appeal.

John Drake, Gregory Gallaher, Lenny Salerno, and Finley Fenton, along with the Second Amendment Foundation and the Association of New Jersey Rifle and Pistol Clubs, filed suit challenging the essential ban on carrying in New Jersey.  John Drake, who operates a business restocking and servicing ATM machines, necessarily carries large amounts of cash on him and desired to carry a firearm for protection.  After initially being approved by the local law enforcement agency, the New Jersey State Police appealed and the Superior Court reversed the LEO’s approval.  The current lawsuit was then filed and the denial was eventually upheld by the Third Circuit.  Petitioners then appealed to the Supreme Court, where the case currently sits, awaiting its fate.

To date, numerous heavy hitters have entered the arena as amici, or third-parties with some interest in the outcome of the case.  The NRA, the Claremont Institute’s Center for Constitutional Jurisprudence, and the Cato Institute have all filed briefs in support of the challenge to New Jersey’s law.  Nineteen states* also filed to support the challenge, as well as the Judicial Education Project.  A single brief was filed on behalf of the following: Gun Owners Foundation, Gun Owners of America, U.S. Justice Foundation, Lincoln Institute for Research and Education, Abraham Lincoln Foundation, Institute on the Constitution, Conservative Legal Defense and Education Fund, and the Policy Analysis Center.  Members of Congress submitted a brief, as well, urging clarification on firearms laws.

Respondents (those defending New Jersey’s law) had until March 14 to file a response.  Although nothing has been posted on the docket as of yet, it is quite possible that, because March 14 was a Friday and Monday saw inclement weather in Washington, D.C., the docket simply does not reflect the submission yet.  We will keep you posted as this case progresses.

*The following states joined Wyoming in filing the amicus brief in support of the Petitioners: Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Kansas, Kentucky, Louisiana, Michigan, Missouri, Nebraska, New Mexico, Ohio, Oklahoma, South Carolina, South Dakota, and West Virginia.

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California Gun-Owners Seek Relief at U.S. Supreme Court

By Allen Thompson, Esq.

UPDATE: Justice Kennedy has denied the requested injunction, according to SCOTUSblog.

UPDATE: The City of Sunnyvale responded before the 3 pm deadline, arguing that the residents had not met their burden required to enjoin enforcement during the pendency of the appeal.  Read the Response here.

Several residents of Sunnyvale, California, have filed a request with the Supreme Court of the United States, asking Justice Anthony Kennedy to stay the Order of the Ninth Circuit Court of Appeals denying them injunctive relief.  The residents had challenged Sunnyvale’s ordinance prohibiting the possession of so-called “high-capacity” magazines capable of holding more than ten rounds.

While the U.S. District Court for the Northern District of California stated in its introduction that

magazines having a capacity to accept more than ten rounds . . . are hardly central to self-defense . . . [and] . . . [t]he right to possess magazines having a capacity to accept more than ten rounds lies on the periphery of the Second Amendment . . .,

it later held that these magazine were protected by the Second Amendment.  Fyock v. City of Sunnyvale, C-13-5807-RMW,  slip op. at 2, 9 (N.D.Ca. 2013).  After its analysis of whether the magazines were protected, it concluded that

[i]n sum, Sunnyvale’s ban on possession of magazines having a capacity to accept more than ten rounds implicates the Second Amendment’s protections . . . . Thus, the court finds that the Sunnyvale ordinance prohibits average, law-abiding citizens from possessing protected arms that are not dangerous and unusual.  As such, Sunnyvale’s ban burdens conduct protected by the Second Amendment.

Fyock, at 10.  (Emphasis added).  However, the court then determined that the law was not particularly burdensome, since it determined that banning a particular type of magazine was not the same as the sort of ordinance at issue in Heller, which completely banned handguns.  The court did not address Heller’s statement that banning a particular type of protected firearm was not permissible so long as other types of protected firearms were available.  See, Heller, 554 U.S. 570, 629 (2008) (“It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed”).

After the District Court refused to issue the preliminary injunction, the residents appealed to the Ninth Circuit for an emergency injunction, which was denied.  They then appealed to the U.S. Supreme Court to grant an injunction during the pendency of the appeal.

The truly concerning part of the District Court’s ruling is its fundamentally flawed analysis.  Once the court determined that these specific magazines were protected by the Second Amendment, the fact that all magazines were not banned by the ordinance should have become irrelevant.  It is notable that the court did not say that larger capacity magazines were not protected by the Second Amendment and then proceed to uphold a total ban on them – rather, it upheld a total ban on the exercise of what it admitted was a Constitutionally protected right, since the ordinance allowed ownership of some magazines.  As the Supreme Court noted in Heller, however, the availability of other Constitutional rights is irrelevant to whether a particular right is being burdened.

This is equivalent to saying that some political speech may be completely banned, so long as speech, in general, is not banned.  While the Supreme Court has upheld regulations and certain limitations on speech, such as time, place, and manner restrictions, and has held that certain locations have greater protections than others (public forums, for example), it has never held that protected speech may be completely banned throughout a municipality.

On a final, procedural note, the residents are not asking the Supreme Court to hear the case on its merits.  They are merely asking the Court to (1) grant an injunction against the enforcement of the ordinance until the District Court makes a full decision on the merits (the District Court only denied the preliminary injunction) or (2) stay the decision until the issues can be briefed further for the Court.  According to SCOTUSblog, Justice Kennedy has asked for a response from Sunnyvale, due Wed., March 12, by 3 pm.

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E Pluribus Unum, So Come On In!

The Supreme Court of the United States yesterday issued its opinion in Fernandez v. California.  The case dealt with the ability of police to search the premises of a person when he or she is not home, but someone else who shares the premises is.  By way of background, the Court’s precedent does not require both tenants to be present for valid consent to be given for a search.  However, in 2006, the Court found that where both tenants are actually present, both must consent to the search.

 The facts of the Fernandez case put it in between the rule and the exception.  Fernandez was suspected of recently committing a violent crime.  Police were pointed in the direction of the apartment in question and they knocked on the door.  A bloodied Roxanne Rojas answered, the police asked to search the premises for Fernandez, Fernandez emerged and told the police that he objected to their search.  Believing Fernandez to have recently harmed Rojas, the police arrested him.  They returned an hour later and asked Rojas for consent to search, which she apparently did.  Evidence was recovered and used to convict Fernandez, over his legal objections.

The Supreme Court held that, since Fernandez was not home at the time of the search, his consent was not needed.  The Court rejected his arguments that (1) he did object while he was present, and that the objection should have stood for at least the next hour; and (2) the only reason Fernandez was away was because the police removed him.

The Court dismissed the first argument for two reasons.  First, the Court looked to “widely shared social expectations.”  The Court found that a “friend or visitor” would likely not enter a house where one occupant was shouting “stay out” at the door, while that same visitor would likely enter where “it is known that the objector will not return during the course of the visit.”  Since Fernandez was decidedly unable to return to the premises, Rojas’ “friends and visitors” at the LAPD were free to enter over what Fernandez considered to be a standing objection.

Second, the Court found that applying a “reasonableness” standard to the length of time for which an objection stood – when it came to co-tenant consent searches -would be problematic (from the government’s perspective).  It did not address why the “reasonableness” standard is not problematic in other contexts, specifically when determining whether a warrantless search is “reasonable” . . . .

Dismissing his argument that the sole reason he wasn’t there to object was that the police removed him, the Court then held that because there was probable cause to arrest Fernandez (which he did not dispute), his removal from the premises was not done merely to remove his objection and authorize a search of the apartment.  Therefore, in light of Fernandez’s legal absence, Supreme Court precedent only required the consent of Rojas to search the apartment.

I am uncomfortable with the line of cases holding that the correct legal analysis analogizes the government to “friends and visitors.”  There is a different expectation of privacy between an individual and his friends, visitors, and co-tenants, and between the individual and his government.  What someone is comfortable allowing his wife, kids, relatives, friends, and visitors to see and access around his home may be (and probably is) quite different from what he is comfortable showing the world, much less his government.

This is precisely why the Fourth Amendment protects the individuals’ right to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”  The Founders were not overly concerned with whether social norms precluded “friend and visitors” from viewing potentially embarrassing or private information by entering houses over the objections of one tenant – they were concerned with unreasonable government intrusion into the homes and premises of individuals.

Second, I am not convinced that an individual’s constitutional right to the security of his person, house, and effects is diminished once he leaves the premises.  A warrant is generally required to enter the premises of one who lives alone when the resident is not present.  A warrant would generally be required if both tenants objected to the search.  And a warrant would be required if none of the occupants were present.

What has fundamentally changed when only one of many tenants consents, aside from improving the “practicability” of searching the premises without a warrant?  How is one’s right to security of his papers and effects protected?  How has the expectation of privacy diminished?  Justification of multi-occupant consent searches are not quite what the Founders had in mind when they used the phrase: e pluribus unum.  As a national motto, it’s great – as a justification for abrogation of a constitutional right, perhaps not.

If you would care to read the full 6-3 opinion of the Court, as well as the dissent by Justices Ginsburg, Sotomayor, and Kagan, you can find the official slip opinion here. 

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Who’s listening to your children

On February 4, 2014, the Governor signed into law changes to the Crimes Code (Title 18) regarding wire tapping and electronic surveillance and how it can affect your children riding the school bus.  I have copy a link to the Bill below.  The most important change seems to address the intercepting of conversations for “disciplinary” or “security” purposes.  What is not clear is whether these conversations must only be about school related matters, or if the recording can be used for other purposes, e.g. domestic relations, criminal conduct by a non-party, etc.  Obviously, this will be playing out in the Courts in the future.  The Bill’s sponsor gave this statement in 2012 regarding the necessity for it’s change and passage:

MEMORANDUM

Posted: December 7, 2012 10:15 AM
From: Senator Richard Alloway
To: All Senate members
Subject: Audio Taping on School Busses
 

In the near future, I plan to reintroduce SB1117 of 2011. This legislation would allow for audio taping on school busses. Currently videotaping can be done on school busses but audio taping is not allowed as some feel that it is a violation of the Wiretap Act.  
 
For two decades, school districts have used video monitoring of school buses for student security and discipline purposes.  This has been a valuable tool in resolving discipline action and has helped reduce violent acts on school buses because the students know that there is a camera on the bus.
 
As technologies advanced in the video surveillance systems used in school buses audio capabilities were also incorporated.  School districts also found that this enhanced capability enabled them to have a more accurate account of the situation and also helped in reducing verbal bullying. 
 
Allowing school buses an exemption from the Pennsylvania Wiretapping laws will be a measure towards a safer school bus environment.  In this day and age where bullying is very prevalent in and out of school, having all the resources available to control behavior and resolve issues will help ensure a safe ride for all students.  When schools and contractors have the use of audio in conjunction with the video discipline issues are resolved faster and with more certainty. 

SB117 of 2011 was co-sponsored by: Alloway, Solobay, Washington, Rafferty, Leach, Brewster, Argall, Baker, Dinniman, and Erickson.

http://www.legis.state.pa.us/cfdocs/legis/PN/Public/btCheck.cfm?txtType=HTM&sessYr=2013&sessInd=0&billBody=S&billTyp=B&billNbr=57&pn=1660

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