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Hans Albert Gillinger

Hans Gillinger’s Answers

77 total


  • Can lawfully owned property be confiscated by govt or some branch of law enforcment without criminal action warranting

    if a law is passed rendering some sort of lawfully owned property to now be classified illegal to own does the law allow for such property to be confiscated? Im not describing any type of criminal action or similar disqualifying event to warrant ...

    Hans’s Answer

    The Fifth Amendment (Amendment V) to the United States Constitution, which is part of the Bill of Rights, provides in relevant part: "No 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. Your question implicates the "regulatory takings" doctrine.

    Regulatory takings doctrine holds that government regulatory action that negatively affects the value--actual or potential--of private property constitutes a "taking" of property and, as such, is prohibited under the takings clause of the Fifth Amendment of the US Constitution unless affected property owners are fairly compensated.

    Historically, the courts have interpreted the takings clause as pertaining to cases of condemnation under eminent domain--that is, the government cannot confiscate your land or other property without paying you a fair price for it. However, only in instances where government regulations have been found to eliminate virtually all economic value of property have some Supreme Court justices supported financial compensation for a "regulatory takings." By contrast, regulatory takings doctrine deems a vast array of public interest and regulatory laws to be illegal.

    As of October 1995, takings bills (a mix of assessment and compensation type measures) had passed in Arizona, Delaware, Florida, Idaho, Indiana, Kansas, Louisiana, Mississippi, North Dakota, Oregon, Tennessee, Utah, Virginia, Washington, and West Virginia, and had been introduced in all the other states in the Union. Some of the new takings laws have been challenged and overturned. In November 1994, the Arizona law was repealed by citizens' referendum with 60 percent of the vote. A takings measure was removed from the 1994 Florida ballot after a legal challenge, and during the same campaign season, ballot measures were filed but failed to qualify in Oregon and Washington. The Oregon law which passed in 1995 was later vetoed, and a measure to repeal the Washington law was being considered by voters in November 1995.

    The fight against state-level regulatory takings bills has been difficult. Cloaked in the Fifth Amendment, and branded "property rights," the bills are attractive to state legislators unaware of their broad implications and pleased at the opportunity to go on the record with a vote in favor of "property rights." Moreover, entrenched political forces in the form of the Farm Bureau, Cattlemen's Association, National Association of Builders, timber companies, and others have repeatedly put their considerable weight behind takings legislation. To make matters worse, in several states seemingly innocuous takings language has been stealthily incorporated into other bills. Due to the power of those in support of takings bills, broad coalitions stood and defeated them. In some states proponents of takings successfully pursued a strategy of incrementalism, enacting narrow laws, and expanding their scope in subsequent years. Once regulatory takings doctrine is ruled constitutional, there is little to prevent its application beyond wetlands and wildlife protection to minimum wage laws, civil rights statutes, and other public interest legislation.

    Good luck!

    Hans Gillinger
    Law Offices of Bonnie Z. Yates
    13323 Washington Blvd., Suite 300
    Los Angeles, CA 90066
    tel: (310) 204-6624
    fax: (310) 204-6624
    Direct: (310) 279-5048
    Email: hans@bonniezyates.com
    web: bonniezyates.com

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  • I am being horrifically targeted, intimidated and harassed at my state job and recently diagnosed with ATSD. Help!

    This has been going on for nine months! A co-worker who is male has verbally attacked me and "gone off" on me twice(the most frightening demeanor) has been writing his vitriol against me to bosses and another co-worker, uses intimidation daily te...

    Hans’s Answer

    My esteemed prior respondents have spoken the truth with respect to the legal reality suggested by your facts. This speaks to ATSD on the issue of coverage.

    Like PTSD, acute stress disorder is an anxiety disorder that involves a specific reaction following exposure to a traumatic event or stressor (e.g., a serious injury to oneself, witnessing an act of violence, hearing about something horrible suffered by someone to whom you are close).

    For a diagnosis of acute stress disorder, the full range of symptoms must be present for at least two days and no more than four weeks. If the symptoms persist for longer than four weeks, a diagnosis of PTSD should be considered. It is normal to have some symptoms following a trauma and a diagnosis of acute stress disorder is given only if all the necessary features are present.
    Official Criteria for Acute Stress Disorder:
    • Exposure to a Trauma –Note that only physical threats count in the definition of a trauma in acute stress disorder. Situations that represent a psychological threat (e.g., a divorce, being criticized by a loved one, being teased) are not considered traumas in the definition of acute stress disorder, even though they may lead to difficulties for the individual.
    • A Response of Fear, Helplessness, or Horror – This must be immediate response to the trauma. So, if an individual’s response to the trauma is one primarily of sadness or loss rather than fear (this is often the case following the death of a loved one who was ill), acute stress disorder would likely not be diagnosed.
    • Symptoms of Dissociation or Decreased Awareness – During or after the trauma, the individual experiences at least three of the following features:
    1. A feeling of emotional numbness (no emotional response), detachment.
    2. Reduced awareness of surroundings.
    3. Feelings of unreality (e.g., perceptual changes, such as one’s surroundings seeming dream-like).
    4. Depersonalization (i.e., feeling detached from one’s body/self).
    5. Inability to remember one or more important aspects of the trauma.
    • Symptoms of Re-Experiencing – The individual persistently re-experiences the event in at least one of the following ways:
    1. Recurrent and disturbing memories, images, and thoughts about the trauma.
    2. Recurrent and disturbing dreams or nightmares about the trauma
    3. Acting or feeling as if the trauma was occurring again (these experiences are often called flashbacks). This may include hallucinations (e.g., seeing things or hearing voices that were present during the trauma, even though they are not really there currently), misinterpreting things that are heard or seen (e.g., being convinced that the sound of fireworks in the distance is actually the sound of gunfire).
    4. Becoming emotionally upset if exposed to reminders of the trauma.
    • Avoidance of thoughts, feelings, conversations, activities, places, or people that remind the individual of the trauma.
    • Significant symptoms of anxiety or arousal (e.g., difficulty sleeping, feeling irritable, poor concentration, hyper-vigilance, being easily startled, feeling restless or unable to sit still).
    • The problem lasts at least two days and no more than four weeks, and it begins within four weeks of experiencing the traumatic event.
    • The individual’s feelings of fear, anxiety, or avoidance cause significant distress (i.e., it bothers the person that he or she has the symptoms) or significant interference in the person’s day-to-day life (e.g., work, school, social functioning). Symptoms may make it difficult to seek help.
    • It must be established that the acute stress disorder symptoms are not being caused by a medical condition (e.g., thyroid condition, diabetes, heart condition) or during binge drug use or withdrawal or other worsening psychological problems. Much luck!

    Hans Gillinger
    Law Offices of Bonnie Z. Yates
    13323 Washington Blvd., Suite 300
    Los Angeles, CA 90066
    tel: (310) 204-6624
    fax: (310) 204-6624
    Direct: (310) 279-5048

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  • How to calculate the statute of limitations, which is a time limit for bringing a civil rights lawsuit/claim?

    is it from the date of the violation? or from the of the damage happened? or from the date of my knowledge of the violation? Example: in 2008 someone threaten my employer to fire me or otherwise their business will be in dangerous, in 2008 I ...

    Hans’s Answer

    My distinguished colleague is correct in observing that no civil rights claim are available in the absence of a governmental in the role of the wrongdoer. Statutes of limitation (SOL) are peculiar to the state in which you find yourself. In CA and in federal courts, the action "accrues" for purposes of SOL (meaning the clock starts to run on your claim period) on the date that you became aware of the facts that give rise to the claim, even if you did not understand that a claim was available to you under such facts. You have dates as far back as 2008, and I observe merely that claims for which a four year SOL period is applied are rare and typically reserved for the government benefit. It appears the clock started to run at least 2009 but more likely 2008 since you filed the internal complaint.

    Seek out a local practitioner ASAP, so they can help you identify the theories of liability and whether any remain available to you at this point.

    “Vigilanibus, non dormentibus, jura subvenient” is Latin and means “Equity aids the vigilant & not the indolent." It is an undisputed axiom that eternal vigilance ids the price of liberty if one sleeps upon his right, his right will slip away form him. Where an injured party has been slow to demand a remedy for a wrong, which he has for a long time regarded with apparent indifference, the court will decline togive him that remedy. This can result in waiver unless the SOL period is unexpectedly generous in AZ for these-type claims or to the extent equitable tolling may apply and preserve your claims. The doctrine is not implicated by your writing, but is a topic for discussion with this very same local counsel I am recommending you seek out. This is needed as the rules also vary by state for tolling.

    Act now and seek out an attorney or be at peace with the waiver of claims. Good luck!

    Hans Gillinger
    Law Offices of Bonnie Z. Yates
    13323 Washington Blvd., Suite 300
    Los Angeles, CA 90066
    tel: (310) 204-6624
    fax: (310) 204-6624
    Direct: (310) 279-5048
    Email: hans@bonniezyates.com
    web: bonniezyates.com

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  • Can a school principal look at my son's phone without my permission?

    My son got in trouble at school for video taping another kid licking a urinal..He was not making this child and it was in (nasty) fun..Now he has been given In-School suspension for this and the principal says he can search my son's phone and pock...

    Hans’s Answer

    • Selected as best answer

    The answer to whether a public school principal conduct a search of your son's phone and pockets any time he sees fit is technically no, although my colleague is correct in noting that the standard to justify this intrusion is low.

    The law of the land is that public school students have a reduced expectation of privacy while at school, but the US Supreme Court artfully said that a public school student does not shed his rights when he walks through the school house door.

    In New Jersey v. T. L. O., 469 U.S. 325 (1985), the Supreme Court ruled that searches in public schools do not require warrants, as long as the searching officers have reasonable grounds for believing that the search will result in the finding of evidence of illegal activity. This is still good law, but the specific facts of each case may implicate more specific rules for specific situations. Safford Unified School District v. Redding, 557 U.S. 364 (2009) illustrates this and is also good law specific to strip searches at public school; the Court ruled that school officials violated the Fourth Amendment when they strip searched a 13 year old girl based only on a student claiming to have received drugs from that student.

    A distinct theme emerges from the above and collecting cases, and all rules applicable to the numerous contexts for governmental intrusion are consistent - the more important and fundamental a citizen's personal or liberty interest to be suffered, the greater the government's interest must be in the conducting the intrusion that courts will require.

    Although you do not specifically ask, it does not appear reasonable/worth it for you to pursue recourse by way of a civil action. Even if liability were to follow from these facts, it would be difficult to prove injury to your son. Please remember that it doesn't follow from the principal's incorrect understanding of the standard applicable to the search that the principal lacked an articulable basis that was sufficient to justify the search.

    Good luck and have a nice talk with your son about his reduced rights while at school and how same should inform and constrain his decision making. A false sense of security or overestimate of his privacy interests in his cell phone while at school will likely result in poor decisions, and regrettable and unintended consequences.

    Hans Gillinger
    Law Offices of Bonnie Z. Yates
    13323 Washington Blvd., Suite 300
    Los Angeles, CA 90066
    tel: (310) 204-6624
    fax: (310) 204-6624
    Direct: (310) 279-5048
    Email: hans@bonniezyates.com
    web: bonniezyates.com

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  • Child with ADHD, do I need to give public school access to his medical records?

    I have a child that has been diagnosed with ADHD, his teacher fills out evaluation scales for his phyciatrist every few months to figure out weather his medication is working well or not. We just moved to this area right before school started, so...

    Hans’s Answer

    In WA as in all states, the school district stands in loco parentis while pupils are at school. Schools must safeguard the wellbeing of all students. When specialized healthcare issues arise (beyond the lay understanding on how to render aid), school districts must obtain physician's instructions to develop specialized healthcare plans that notify all what is to be done for your son and under what conditions. Federal and state medical privacy laws yield to legitimate state/school interests in obtaining information needed to care for such child. Thus, the school is entitled to obtain the release if necessary to ensure safety or the provision of a FAPE. It is unclear whether the "scales" to which you refer satisfy this standard and the answer will turn on why the district is requesting it. If for safety or health concerns, the school's interests outweigh the individual's privacy interests.

    I suggest asking for the purpose of the scales in question. If medical records are not necessary in light of the explanation, then there is insufficient state interest to obtain medical records. For instance, one doesn't need to access medical records to administer the childhood autism rating scale, but medical records are more relevant to rating scales for ADHD that consider the duration and onset of symptoms to classify or diagnose ADHD. They would also show that he has ADHD if his functioning improved when medication is introduced. It is this very condition that caused "response to intervention" to become a new basis for a diagnosis; giving a kid who may have ADHD medication for ADHD will confirm the presence of ADHD to the extent the child responds to the medication. It helps, you have it. One charge of the IEP team for each assessment of a child is to determine the continuing eligibility and need for special education.

    Please remember that you have the right to limit the scope and period of the release consistent with what the school requires to confirm that either no specialized healthcare plan is needed for safety. If the reason relates to eligibility, limit your release to what is relevant to the condition in question, which makes blood work irrelevant.

    Good luck!

    Hans Gillinger
    Of Counsel
    Law Offices of Bonnie Z. Yates
    13323 Washington Blvd., Suite 300
    Los Angeles, CA 90066
    tel: (310) 204-6624
    fax: (310) 204-6624
    Direct: (310) 279-5048
    Email: hans@bonniezyates.com
    web: bonniezyates.com

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  • Can an 18 yr old go to jail for truancy?

    i am considering dropping out of high school is there any thing i need to do to do so?

    Hans’s Answer

    My colleague speaks to whether dropping out is a good idea, and I agree with her. If you decide you really want to be done with public education, you will need to be exited from special education. Until you reached 18, your educational rights were held by another - typically a parent or guardian. On your 18th birthday, your rights transferred to you and the law requires that the school district explain this to you at every IEP subsequent to the day you turned 17. Unless conserved by a court, you thereby become "the parent" within the meaning of the IDEA, and you had all rights afforded to parents of eligible pupils. Also the responsibilities, I'm afraid, and your decision should not be an easy one. Depending on your situation, you may have the right to special education until you are 22. Your right to attend a particular school district is informed by the location of your residence. This is thousands of dollars a year you would be leaving on the table should you decide to leave school. As an adult under CA law, the state no longer has sufficient interest to compel you to attend school. Should you decide to go, please notify the head of your school site and give written notice to the district. You have a right to certain processes even as an exiting pupil that should be explained to you to ensure that you are aware of the legal implications of such a decision.

    Good luck and try not to miss summer break too much!

    Hans Gillinger
    Of Counsel
    Law Offices of Bonnie Z. Yates
    13323 Washington Blvd., Suite 300
    Los Angeles, CA 90066
    tel: (310) 204-6624
    fax: (310) 204-6624
    Direct: (310) 279-5048
    Email: hans@bonniezyates.com
    web: bonniezyates.com

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  • Observing school?

    Am i able to observe a classroom and teacher it's a public school i've been told since it's public and i'm a citizen i can observe and i've seen a lot of people observe classrooms and the teachers when i was in school

    Hans’s Answer

    In California, observations by the public, parents, or experts of the parents are governed by the written procedures at the school site level. Meaning, the school at which you desire to observe sets its own rules and limitations on observations.

    Your question speaks to special education students, and I note that the IDEA emphasises parental involvement, not the involvement of folks unrelated to the child. Your right to observe competes with the legitimate school interests in maintaining an environment condusive to learning and of safeguarding the privacy interests of the disabled students you want to observe. I encourage you to clarify why you think an observation proper notwithstanding you being unrelated to the pupils in the class, instructional planning, or classroom teacher.

    Then look at the site-level policy on observations paying attention to the rules applicable to members of the public (not parents) and when a member of the public has sufficient interest in the observation of a classroom to outweigh the above-mentioned legitimate interests of the school. A member of the public seeking acccess to a public building to view how the public's money is being spent may have a greater interest in observation than would another member of the public that is merely curious to observe without an apparent interest in any given classroom. You would have far less difficulty observing a classroom attended by someone with whom you are related.

    Good luck!

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  • What are my rights in a civil Deposition?

    In a civil law suit and as a director at the plaintiff party I was required to show up for deposition while I am outside the country. Does the defendant has the legal right to force me to come back to the States for deposition knowing that other d...

    Hans’s Answer

    I agree that you should speak with your lawyer about these questions, but make some general observations.

    The rules are different for party, nonparty, or third-party witnesses. These rules vary by state and the state's laws govern state court actions. Federal actions have still different rules. All schemes I have seen reflect the differences between deponents that are plaintiffs and those that are defendants. As the party bringing the action, courts are more inclined to make you show up for depositions; the specific rules in your state may reflect this.

    As a corporate director you are essentially the plaintiff here, potentially (from your brief introduction). In California for instance, corporate party-deponents must be deposed within 75 miles of their principal offices or executives' residences, or in the county in which the action was filed at a place within 150 miles of their designated offices or executives' residences. There are additional provisions for foreign depositions.

    In federal court, you will need to be familiar with the rules of the Hague Convention, as well as Societe Nationale Industrielle Aerospatiale v. U.S. District Court, 482 U.S. 522 (1987), and its progeny, neither of these basic sources of law can fully prepare even a seasoned litigator for the gauntlet of procedural, practical, and cultural obstacles that he or she may face when attempting to obtain testimony from unwilling witnesses located outside the United States. Once beyond the reach of the federal rules, in the absence of a willing witness, it is essentially impossible to compel a foreign deposition.

    If the witness is a party or employee of a party or otherwise subject to the jurisdiction of the U.S. district courts, most attorneys will reach deep into the federal rules discovery toolbox. The basic holding of the Societe Nationale case, after all, is that resort to the Hague Convention is largely optional in federal court. A party seeking discovery abroad need not first attempt to use the Hague Convention; instead, that party may elect to compel discovery under the federal rules, even if the other party or the other party’s documents or witnesses are outside the United States. The only limitation is that the evidence sought must be within the party’s “possession, custody or control.” And this provision has teeth: Sanctions for failure to produce evidence located outside the United States are available under Federal Rule of Civil Procedure 37(b) and can range from contempt of court to declaring facts in the “withheld” evidence to be established.

    Societe Nationale is of little help, however, if the witness is a nonparty or otherwise not subject to the court’s jurisdiction. When discovery or depositions are sought of nonparties not subject to the court’s ability to compel discovery, the litigator can either hope the witness will voluntarily sit for deposition or resort to the Hague Convention or other applicable bilateral agreement.

    The Hague Convention establishes procedures to obtain evidence of witnesses abroad and is currently in force in 54 contracting countries. Generally, the party seeking evidence prepares a letter of request and submits it—or has the U.S. court submit it—to the authority designated in the convention to receive notice. This may be a central authority, such as a bureau within the Ministry of Justice (as in France), or a regional authority, such as a “Laender Authority” in Germany. The truth is that the Hague Convention is largely ineffective in compelling an American-style deposition in which the American lawyer asks questions of an unwilling foreign witness. Generally, only letters of request can compel a “deposition,” and these “depositions” usually must be conducted by a person appointed by the foreign judicial authority, who, in most cases, knows nothing about the case and will ask only questions that have been submitted in advance in writing. You will need an attorney; use the one prosecuting the action

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  • Where can a constitutional rIghts complaint be filed?

    With regard to the article above, I've just recently experienced this with a friend. Requiring a defendant to "pay a fee to defend themselves" not only violates the defendant's constitutional rights to due process, the parties enforcing this requi...

    Hans’s Answer

    Initially, it is unclear from your writing exactly what you intend to file, as the title asks about where one should file "constitutional rights complaint" and then in the body of your inquiry you ask where "violations of oath of office" get filed.

    Many civil rights claims can be pursued by filing a complaint, at no charge, with the Office of Civil Rights. Not knowing what you are trying to file, the OCR's website is a good place to begin your search for an answer. Civil rights claims can also be pursued in federal court (if based on civil rights secured by federal law and a federal court may even entertain civil rights claims based on state law by extending supplemental jurisdiction over such claims). A section 1983 claim for deprivation of federal rights is also cognizable in federal court. This is often to what folks refer when invoking the term "civil rights complaint." 42 USC Section 1983 is a perfectly valid Google search, which will likely shed further light on your inquiry.

    Alternatively, please consider posting another question with further details and more specifics as to the nature of the complaint you intend to file.

    Good luck!

    Hans Gillinger
    Of Counsel
    Law Offices of Bonnie Z. Yates
    13323 Washington Blvd., Suite 300
    Los Angeles, CA 90066
    tel: (310) 204-6624
    fax: (310) 204-6624
    Direct: (310) 279-5048
    Email: hans@bonniezyates.com
    web: bonniezyates.com

    See question 
  • How much does it cost to seal a juvenile record in California?

    How much does it cost, and does it get sealed automatically? Or is there a certain amount of time required?

    Hans’s Answer

    It is the express intent of the Legislature “that juvenile court records, in general, should be confidential. See In re Keisha T. (1995) 38 Cal.App.4th 220, 231, citing Welf. & Inst. Code §827(b). Courts have recognized, however, that this policy of confidentiality is not absolute. The juvenile court (“JC”) has been vested with “exclusive authority to determine the extent to which juvenile records may be released to third parties.” Ibid., citing T.N.G. v. Superior Court (1971) 4 Cal.3d 767, 778, 781; See also Cimarusti v. Superior Court (2000) 79 Cal.App.4th 799, 804.
    Welf. & Inst. Code §827(a) governs the authority/right of specific enumerated personnel to inspect juvenile court records. In addition, California Rules of Court, rule 1423(a) states: “Only those persons specified in sections 827…may inspect juvenile court records without authorization from the court. Juvenile court records may not be obtained or inspected by civil or criminal subpoena. Authorization for any other person to inspect, obtain, or copy juvenile court records must be ordered by the juvenile court presiding judge or a judicial officer designated by the juvenile court presiding judge.” Rule 1423(a) defines the protected “juvenile court records” to include: (1) all documents filed in a juvenile court case; (2) reports to the court by probation officers, social workers, and special advocates; (3) documents made available to probation officers, social workers, and special advocates in preparation of such reports; (4) documents relating to a child concerning whom a petition has been filed, which are maintained in the office files of probation officers, social workers, and special advocates; (5) transcripts, records, or reports relating to matters prepared or released by the court, probation department, or child welfare programs; and (6) documents and exhibits admitted into evidence at JC hearings. CYA or DJJ files include documents transmitted from the JC that unquestionably are JC records as defined by Welf. & Inst. Code §827 and California Rules of Court, rule 1423. Cimarusti, supra, at 805.
    The right to have juvenile records sealed is governed by Welf. & Inst. Code §781. In re Jeffrey T. (2006) 140 Cal.App.4th 1015, 1019. The relevant provides in relevant part: “In any case in which a petition has been filed with a juvenile court (“JC”) to commence proceedings to adjudge a person a ward of the court…the person or the county probation officer may, five years or more after the jurisdiction of the JC has terminated as to the person…or, in any case, at any time after the person has reached the age of 18 years, petition the court for sealing of the records, including records of arrest, relating to the person’s case, in the custody of the juvenile court and probation officer and any other agencies, including law enforcement agencies, and public officials as the petitioner alleges, in his or her petition, to have custody of the records…If, after hearing, the court finds that since the termination of jurisdiction or action pursuant to Section 626, as the case may be, he or she has not been convicted of a felony or of any misdemeanor involving moral turpitude and that rehabilitation has been attained to the satisfaction of the court, it shall order all records, papers, and exhibits in the person’s case in the custody of the JC sealed, including the JC record, minute book entries, and entries on dockets, and any other records relating to the case in the custody of the other agencies and officials as are named in the order…Notwithstanding any other provision of the law, the court shall not order the person’s records sealed in any case in which the person has been found by the JC to have committed an offense listed in Welf. & Inst. Code §707(b) when he or she had attained 14 years of age or older.” Good luck!

    Hans Gillinger
    Law Offices of Bonnie Z. Yates
    13323 Washington Blvd., Suite 300
    Los Angeles, CA 90066
    tel: (310) 204-6624

    See question