Devastating Decision Regarding Mental Health Commitment Challenges and Firearms Rights

Late last week, the Pennsylvania Supreme Court issued its decision in In re: Nancy White Vencil, 90 MAP 2015, which overturned the Pennsylvania Superior Court’s learned decision finding that a challenge, pursuant to 18 Pa.C.S. § 6111(g)(2), to the sufficiency of an involuntary commitment was to be de novo, supported by clear and convincing evidence, where the burden was, in essence, to rest with the Commonwealth.

Unfortunately, the PA Supreme Court vacated the decision as it concluded that the Superior Court erred since, in its opinion

the plain language of section 6111.1(g)(2) requires a court of common pleas to review only the sufficiency of the evidence to support the 302 commitment, limited to the information available to the physician at the time he or she made the decision to commit the individual, viewed in the light most favorable to the physician as the original decision-maker to determine whether his or her findings are supported by a preponderance of the evidence.

Although the Court acknowledged that “By legislative design, there is no judicial involvement in the decision to effectuate a 302 commitment and no right to appeal the physician’s decision” and therefore affords no due process (an issue which Mrs. Vencil apparently failed to raise (pdf pg. 18 (declaring “Vencil has not challenged the due process protections provided by Section 302 of the MHPA. Nor has she raised a due process argument in connection with her right to keep and bear arms under the United States and/or Pennsylvania Constitutions)), the Court declared that a trial court is only

to review the physician’s findings, made at the time of the commitment, to determine whether the evidence known by the physician at the time, as contained in the contemporaneously-created records, supports the conclusion that the individual required commitment under one (or more) of the specific, statutorily-defined circumstances.

Interestingly, the Court did not address the sufficiency/review of the requisite records for an involuntary commitment, pursuant to 50 P.S. § 7302 and the implementing regulations. This is likely due to this issue not having been raised and therefore was not considered by the Court.

The Court went on to declare that

The Legislature could have broadly created an appeals process under the MHPA for 302 commitments, but it did not; it could have required a de novo hearing but it did not. Instead, it narrowly provided that under 6111(g)(2) of the Uniform Firearms Act, a petitioner is entitled only to have a trial court review the sufficiency of the evidence upon which the commitment was based.

It is also important to note that the Court recognized in fn. 4 (pdf pg. 7) that the Pennsylvania State Police waived any consideration of the statute of limitations. The Court’s acknowledgment of is somewhat concerning as a specific of statute of limitations has not been enacted by the General Assembly and the Court did not specify what the appropriate statute of limitation is for sufficiency challenges to civil mental health commitments.

It is for these reasons, including the lack of requisite due process, that it is imperative that the General Assembly enact a new law regarding mental health commitment appeals, in compliance with all dictates of due process.

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Safety Goggles…

Surprisingly, this photo is not smuggled out of a local factory, although I’ve heard this story before…

Safety goggles

From A Series of Unfortunate Events (2017 ).

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When Do You Need an Attorney for Workers’ Compensation?

by Karl Voigt

When do you need an attorney for Workers’ Compensation? For those of you who read my posts on Avvo.com, you know that I am by no means a salesman for lawyers. I often encourage Workers’ Compensation claimants to stick it out, and not enter into a fee agreement with a Workers’ Compensation lawyer until they actually need one. I usually say, “you’ll know when you need one.” Lawyers costs money. The general rule is that, once you go to Worker’s Compensation court with a lawyer, 20% of your checks are going to be paid to that lawyer as a fee.

Some recent experiences have really started to change my opinion. And I’ve been practicing Worker’s Compensation law for 26 years now. I have recently seen some very poor behavior from employers and adjusters right at the beginning of the case that makes me think injured workers should have lawyers working for them from day one.

Usually, right at the inception of a claim, the insurance company doesn’t have a lawyer working on its side. There’s an insurance adjuster who makes the initial decisions. Often bad decisions – for the injured worker.

I had someone contact me recently who had just hurt his low back at work. Okay, it happens; people get hurt and that’s what Worker’s Compensation is designed to address. What supposed to happen after that is the employer reports the injury to its Workers’ Compensation insurer and the injured worker gets medical treatment. If the employee can’t work because of the injury, he gets paid wage loss benefits.

So this gentleman hurt his back, immediately told his employer, who essentially disregarded him. His employer wouldn’t even let him know who his Worker’s Compensation insurance company is.

So, after I spoke with him, I used my own resources to track down the identity of this employer’s insurer. Then I contacted that insurance company, trying to hunt down the identity of the person responsible for handling this work injury claim. “No such claim,” they said. Okay, so the employer pay no heed to the law that says that all work injuries must be reported to the carrier within 24 hours.

My efforts now forced the employer into reporting the claim and a file was opened, a claim number generated, and an adjuster assigned. Under ordinary circumstances, the claimant might have simply gone on working in pain, allowing his employer to string him along.

The worker then discussed his case with the adjuster, who actually told him he was compelled to treat with a doctor chosen essentially by her! This would allow her to “twist the arm” of a doctor who was contracted with the carrier. This doctor, knowing who buttered his bread, would be more inclined to make medical decisions favoring the employer, rather than

Before this conversation with the adjuster, we had a discussion about his medical care. Anyone who’s well-read here or on Avvo.com know about the captive period, where a carrier tries to control the initial medical care given an injured worker. Based on the facts, we had decided that he could treat with his choice of doctor. The employer posted no list of physicians from which to choose, nor had the worker signed the “rights and responsibilities” form requisite for the captive period to be enforceable. Therefore, he could not be forced to treat with a company doctor.

But for our conversation, he could have been railroaded into substandard medical care.

All this in the space of just a few days.

Well, not every case goes like this at its inception. Some go smoothly, as it should. However, I suspect more cases like go this one would have when the worker doesn’t have counsel from the start. So, it certainly can’t hurt to get counsel involved from the very beginning. It can only set you in the right direction.

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U.S. Government to Withdraw Appeal in Second Amendment As-Applied Challenge Relating to a Mental Health Commitment

As our viewers are aware, I was previously successful in establishing a right to relief in a Second Amendment as-applied challenge involving a mental health commitment – Monumental Decision from the Middle District of Pennsylvania Regarding Mental Health Commitments and the Second Amendment. Thereafter, the U.S. Government filed an appeal to the Third Circuit Court, where the case is currently pending briefing.

Today, the U.S. Government filed a notice with the Third Circuit that the Acting Solicitor General has elected not to sustain the appeal and the Government will be seeking to withdraw the matter in 30 days, as the Government must provide the U.S. Congress with 30 days notice, for the U.S. Congress to intervene if it sees fit. A copy of the letter sent to Speaker Paul Ryan can be downloaded here.

Accordingly, it appears that in 30 days, the appeal will be withdrawn and the only remaining issue will be the attorney fees and costs to be assessed against the Government.

If you have been denied your inalienable right to Keep and Bear Arms as the result of a mental health commitment or non-violent misdemeanor offense, contact us today to discuss your options. Together, we can vindicate YOUR rights!

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Protecting Personal Information: A Guide for Business

ftcThe Federal Trade Commission (FTC) has published an updated version of its Protecting Personal Information: A Guide for Business.

A sound data security plan is built on 5 key principles:

  1. TAKE STOCK. Know what personal information you have in your files and on your computers.
  2. SCALE DOWN. Keep only what you need for your business.
  3. LOCK IT. Protect the information that you keep.
  4. PITCH IT. Properly dispose of what you no longer need.
  5. PLAN AHEAD. Create a plan to respond to security incidents.

Most companies keep sensitive personal information in their files—names, Social Security numbers, credit card, or other account data—that identifies customers or employees.

This information often is necessary to fill orders, meet payroll, or perform other necessary business functions. However, if sensitive data falls into the wrong hands, it can lead to fraud, identity theft, or similar harms. Given the cost of a security breach—losing your customers’ trust and perhaps even defending yourself against a lawsuit—safeguarding personal information is just plain good business.

Some businesses may have the expertise in-house to implement an appropriate plan. Others may find it helpful to hire a contractor. Regardless of the size—or nature—of your business, the principles in this brochure will go a long way toward helping you keep data secure.

If you or your business have questions or concerns regarding fraud, computer law, privacy, or cybersecurity law matters, including assistance with policies, prevention or recovery from a ransomware attack and cybersecurity insurance or insurance claims, contact attorney Jeffrey A. Franklin at Prince Law Offices.

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FTC Charges D-Link Put Consumers’ Privacy at Risk Due to the Inadequate Security of Its Computer Routers and Cameras

Device-maker’s alleged failures to reasonably secure software created malware risks and other vulnerabilities

ftc

The Federal Trade Commission (FTC) filed a complaint today against Taiwan-based computer networking equipment manufacturer D-Link Corporation and its U.S. subsidiary, alleging that inadequate security measures taken by the company left its wireless routers and Internet cameras vulnerable to hackers and put U.S. consumers’ privacy at risk.

In a complaint filed in the Northern District of California, the FTC charged that D-Link failed to take reasonable steps to secure its routers and Internet Protocol (IP) cameras, potentially compromising sensitive consumer information, including live video and audio feeds from D-Link IP cameras.

The complaint filed today is part of the FTC’s efforts to protect consumers’ privacy and security in the Internet of Things (IoT), which includes cases the agency has brought against ASUS, a computer hardware manufacturer, and TRENDnet, a marketer of video cameras.

“Hackers are increasingly targeting consumer routers and IP cameras — and the consequences for consumers can include device compromise and exposure of their sensitive personal information,” said Jessica Rich, director of the FTC’s Bureau of Consumer Protection. “When manufacturers tell consumers that their equipment is secure, it’s critical that they take the necessary steps to make sure that’s true.”

According to the FTC’s complaint, D-Link promoted the security of its routers on the company’s website, which included materials headlined “EASY TO SECURE” and “ADVANCED NETWORK SECURITY.” But despite the claims made by D-Link, the FTC alleged, the company failed to take steps to address well-known and easily preventable security flaws, such as:

  • “hard-coded” login credentials integrated into D-Link camera software — such as the username “guest” and the password “guest” — that could allow unauthorized access to the cameras’ live feed;
  • a software flaw known as “command injection” that could enable remote attackers to take control of consumers’ routers by sending them unauthorized commands over the Internet;
  • the mishandling of a private key code used to sign into D-Link software, such that it was openly available on a public website for six months; and
  • leaving users’ login credentials for D-Link’s mobile app unsecured in clear, readable text on their mobile devices, even though there is free software available to secure the information.

According to the complaint, hackers could exploit these vulnerabilities using any of several simple methods. For example, using a compromised router, an attacker could obtain consumers’ tax returns or other files stored on the router’s attached storage device. They could redirect a consumer to a fraudulent website, or use the router to attack other devices on the local network, such as computers, smartphones, IP cameras, or connected appliances.

The FTC alleges that by using a compromised camera, an attacker could monitor a consumer’s whereabouts in order to target them for theft or other crimes, or watch and record their personal activities and conversations.

These tips can help you secure your router:

  • Before you buy or replace a device, do research online. Use search engines to find reviews, but be skeptical about the source of the information. Is it from an impartial security expert, a consumer, or the company itself?
  • Download the latest security updates. To be secure and effective, update the software that comes with your device. Check the manufacturer’s website regularly for new software and updates.
  • Change your pre-set passwords. Change the device’s default password to something more complex and secure.

There are additional steps you can take to help keep your IP camera secure.

The FTC has provided guidance to IoT companies on how to preserve privacy and security in their products while still innovating and growing IoT technology.

The Commission vote authorizing the staff to file the complaint against D-Link Corporation and California-based D-Link Systems, Inc. was 2-1, with Commissioner Maureen K. Ohlhausen voting no. The complaint was filed in the U.S. District Court for the Northern District of California.

NOTE: The FTC files a complaint when it has “reason to believe” that the law has been or is being violated and it appears to the Commission that a proceeding is in the public interest. The case will be decided by a federal district court judge.

If you or your business have questions or concerns regarding fraud, computer law, privacy, or cybersecurity law matters, including assistance with policies, prevention or recovery from a ransomware attack and cybersecurity insurance or insurance claims, contact attorney Jeffrey A. Franklin at Prince Law Offices.

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SUNSHOT $$$ PRIZE: SOLAR IN YOUR COMMUNITY CHALLENGE

solar-in-your-community-challenge-heroThe SunShot Prize: Solar in Your Community Challenge is a prize competition that aims to expand solar electricity access to all Americans, especially underserved segments such as low- and moderate-income (LMI) households, state, local, and tribal governments, and nonprofit organizations. In order to make solar more accessible and inclusive for every American, the Challenge works to spur the development of new and innovative financial and business models that serve non-rooftop solar users such as community solar.

Offering $5 million in cash prizes and technical assistance over 18 months, the Challenge supports teams across the country to develop projects or programs that expand solar access to underserved groups, while proving that these business models can be widely replicated and adopted by similar groups.

Participation in the Challenge is open to:

  • Teams working to develop a portfolio of solar projects in their communities or create new solar programs that extend solar access to LMI households and nonprofits; and
  • Technical assistance providers (consultants and coaches) that assist teams throughout the 18-month challenge by providing the coaching and resources teams need to create innovative new business models.

The Solar in Your Community Challenge is sponsored by the U.S. Department of Energy SunShot Initiative and administered by The State University of New York (SUNY) Polytechnic Institute. Visit the Challenge website to learn more, apply, and get involved.

STRUCTURE AND PRIZES

Teams selected to participate in the challenge may receive three distinct types of awards: seed awards, technical assistance vouchers, and final prizes.

Teams will compete to win $1 million in Final Prizes, including a $500,000 Grand Prize for success in demonstrating a replicable and scalable model for low income solar. In addition, selected teams will receive approximately 50 cash seed awards totaling $2 million, and benefit from technical assistance resources and mentoring worth an additional $2 million. Teams will be evaluated based on their innovation, impact, expertise, team composition, plan, and progress. As teams are selected, seed awards (up to $60,000 per team) will be disbursed in increments based on completed milestones over an 18-month performance period.

In addition to final prizes, technical assistance providers (consultants and coaches) will be compensated depending on the extent to which challenge teams choose to use their services throughout the 18-month performance period.

Learn more about the prizes on the Challenge’s website.

RULES

Competing teams need to design and deploy new and scalable business and financial models through the demonstration of solar projects and programs in their communities. These projects and programs must directly benefit:

  • LMI households, with at least 20% of the energy and benefits assigned to LMI households; or
  • Non-profit organizations; state, local, or tribal governments; or community service organizations, with at least 60% of the energy and benefits assigned to one of these types of entities.

Photovoltaic (PV) systems must be completed during the 18-month performance period and should aggregate between 25 and 5,000 kilowatts (peak DC capacity). A single entity cannot not be assigned more than 1,000 kilowatts from a single solar energy system.

While 20% LMI customers is the minimum, teams with over 50% LMI customers will receive a bonus cash prize. DOE will also show preference for teams that aim to reach 100% LMI households or have 100% of the energy benefit nonprofit/governmental organizations as outlined in the evaluation criteria for winning prizes.

Read the official rules and learn more on the Challenge’s website.

TIMELINE

Release of Official Rules: November 18, 2016
Informational Webinar: November 29, 2016, 2:00pm ET
Early Application Deadline: January 6, 2017
Application Deadline: March 17, 2017
Late-Start Application Deadline: August 1, 2017
Seed Funding and Vouchers Awarded: April 2017
Technical Assistance Marketplace Opens: April 2017
18-month Performance Period Begins: May 1, 2017
18-month Performance Period Ends: October 31, 2018
Accepting Applications for Final Prizes: November 2018
Announcements of Final Prizes Winners (Expected): January 2019

Desire more specific assistance regarding CHP, Solar; renewable energy projects, energy law, or real estate law, contact attorney Jeffrey A. Franklin at Prince Law Offices, P.C.

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