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Jeffrey Alan Lustick

Jeffrey Lustick’s Answers

332 total

  • Is the Plaintiff allowed to enter motions for the judges consideration in small claim, in Washington State?

    In Small Claims Court is it common for the judge to entertain motions to rule prior to testimony by the parties? I wanted to cite Tenant-Landlord codes expressing violations such as not returning a deposit consistent with the Act. the landlord ref...

    Jeffrey’s Answer

    No, usually in a small claims court case, you get one shot at making your case, which is in court when you actually appear in person in front of the judge presiding over the matter. You can maybe compose a written memo outlining your evidence and the legal points of your case and possibly submit it to the judge ahead of time, but you will need to make sure that the other side gets a copy of what you have submitted well ahead of the court date.

    The reason I say that you can maybe submit this is that in some small claims court, there are rules specifically against submitting written briefs, documents, or letters to the judge in advance. Communications of this kind are problematic in that it can result in hundreds of pages of paperwork being submitted, and the courts just don’t want that sort of stuff from non-lawyers in small claims cases who aren’t trained in the law. Instead, they want it all to unfold in court on the record while both parties to the dispute are present.

    I recommend that you just create an outline to work off of in court when you are presenting your case to the judge. You can list the relevant parts of state law and organize your case in advance. Often people who are no experienced in court will forget to mention important things or worse yet, they will misstate things because they are nervous. Having an outline will keep you on topic and serve to make your case that much stronger when you are presenting it.

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  • What does an anti harassment order do?

    If we get anti harassment order against our neighbor what will it do? He will asked not to contact us? not to take pics of our property? he will be asked not to look at us at all ? not to file complaints about us? not to come in certain distance (...

    Jeffrey’s Answer

    Under Washington State Law, a civil anti-harassment order orders one party (the “restrained party”) to stop making contact with the other party (the “protected party”). Depending on the situation, the order will state that the restrained party cannot physically come within a stated amount distance of the protected party, such as 500 feet. However, the orders are enforceable for contact wherever the protected party is. The law also prohibits contact by phone calls, text messages, e-mails, and written communications. Communication from the restrained party to the protected party using some other third person is prohibited as well.

    Another feature of anti-harassment orders is that the court can order the restrained party to surrender firearms and order them to be placed in the protective custody of the police. The restrained person can also be barred from purchasing a firearm and from obtain a concealed pistol license. Finally, the restrained person can be ordered to return property they possess which belongs to the protected party.

    When the situation includes spying, like you mentioned in your question, the court can order that the restrained party cannot place the protected party under surveillance. This would include following the protected party or taking photos or obtaining information about the protected party.
    To obtain an anti-harassment order, you have to go to your local court and file a petition. The petition must be completed correctly and has to contain certain allegations to qualify for issuance of the anti-harassment order. These key elements include:

    Evidence of legal "harassment," which is defined as a series of acts over a period of time which seriously alarms, annoys, harasses, or harms you without “serving a legitimate purpose”; AND which reasonably causes you to suffer substantial emotional distress (harm); or reasonably causes you to fear for the well-being of your child. Keep in mind that a "course of conduct" does not include constitutionally protected activity or constitutionally protected speech.

    As explained above, for the acts to be harassment, they cannot be considered to “serve a legitimate purpose.” To decide if the actions are for a legitimate (valid) purpose, the court will consider whether:
    • the person started the current contact between you two or whether you both contacted each other;
    • the person has been given clear notice that all future contact with you is unwanted;
    • the acts appear designed to alarm, annoy, or harass you;
    • the person is acting to try to protect a legal interest in his/her property, to enforce a law, or to meet a legal obligation;
    • the person’s acts unreasonably interfere with the your privacy or create an intimidating, hostile (unfriendly), or offensive living environment for you;
    • there was a court order in the past that limited the person’s contact with you or your family.

    There is no requirement that you hire a lawyer in order to obtain an anti-harassment order, but because this is a court process which often involves going to court for litigation, you would be well advised to seek legal counsel before filing any paperwork in court.

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  • Can the military not let me In for my mental illness?

    I have really high ADHD AND ADD plus broke my leg when i was younger playing football but my family has served in the military for years every generation sense the Alamo. And now being the last one of my family in this generation I wanted to join...

    Jeffrey’s Answer

    Yes, they can legally do this. Each military service (Army, Navy, Air force, Marine Corps, and Coast Guard) sets their own enlistment qualifications and its own minimum medical and mental health standards for enlistment.

    Sometimes, a certain disqualifying medical condition makes total sense, like the inability to see or hear or walk, but sometimes, it may not be readily apparent as to why not something is disqualifying, like in the case of sleep walking, severe stomach issues, or even having asthma. Sometimes there is a work around whereby a candidate for military service with a disqualifying condition can get a medical consult and maybe receive a waiver for enlistment. But waivers can be hard to get. You should ask your recruiter about whether or not you can qualify for a waiver.

    Each service has a list of conditions which are permanent dis-qualifiers. In my experience as a former Air Force recruiter, the U.S. Air Force has some of the strictest qualifications. You also should be aware what is disqualifying for one branch may not be disqualifying for another. So although you really want to serve in the Air Force (which I totally understand and applaud you for), you should go check in with the other branches and see if they can work with you on getting a waiver.

    Service in the United States Military is a privilege and not an entitlement or a right. The bad news for you is that there is no way to sue or bring legal action to change the enlistment qualifications. I hope that you can find some other way to join the military or if you cannot, that that you will pursue one of the many other avenues available for becoming of service to your country.

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  • I have a miniature rooster and would like to petition for an exemption to the municipal code banning roosters from urban farms.

    This little rooster has a delicate cry and I know my neighbors would support his presence. Are exceptions ever given on a case-to-case basis? Or probationary basis?

    Jeffrey’s Answer

    Seattle Municipal Code at Section 23.42.052 regulates the keeping of chickens within the city limits. The city ordinance allows up to eight hens on any property, except that on lots greater than 10,000 square feet which include either a community garden or an urban farm, one additional fowl is permitted for every 1,000 square feet of lot area over 10,000 square feet in community garden or urban farm use. The section also states that coops or structures used to house chickens must be ten feet away from any dwelling. Finally, the section also states that roosters are not permitted. Therefore you are correct that under the Seattle Code, no one can have roosters in their urban chicken flocks, only hens. See S.M.C. § 23.42.050 (c)(2) .

    The City of Seattle sometimes allows certain code provisions to be waived on a case by case basis. This is called a “municipal variance,” whereby the city specifically allows someone to do something which would otherwise be illegal. But usually a city will not issue a variance unless there is some benefit to the public at large, and usually they will refuse to override a prohibition on something in order to issue a variance.

    In this case, although the rooster may be small and somewhat quieter than most roosters, the City Code specifically prohibits roosters, so a variance is in all likelihood, impossible.

    We the city receives a request for a variance, the code enforcement and planning departments look to ensure that each of the following is met, otherwise the request will be denied:

    1. The request is the minimum necessary to grant relief and is not a special privilege;
    2. The request is not harmful to the neighboring area;
    3. The strict application of Land Use Code provision would cause undue hardship if a variance is not granted;
    4. The proposal is consistent with the spirit and purpose of the Land Use Code.

    Right off the bat, allowing this rooster to live at your place could easily be seen as not meeting these requirements. Although he is your pet, this not going to cause you any recognizable legal hardship to relocate the rooster off site; and by that they mean loss of business revenues or employment, etc. Also you have hens already and just because you desire to have a small rooster, you would be hard pressed to prove that a variance is really a necessity.

    It's notable that roosters are prohibited because in most cases they have worn out their welcome by making loud noise all the time; thus making it harmful to the neighborhood. Even if your neighbors did sign letters stating they don’t care, the chances of the city allow this are very slim because they want to keep things consistent and keep other people in other areas from doing the same thing.

    And finally, If you read the entire animal section of title 23, you can see that the spirit of the code is to protect from lots of loud noise and to keep animals limited to avoid disruptions around homes. So based on all of this, it appears very unlikely that you could receive a variance for this.

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  • Length of knife you can carry?

    I have looked few websites even tried calling city hall cant find two results I carry a pocket knife with me the whole blade and its handle is only about 9 inches. What is the length of a pocket knife you can carry in Washington?

    Jeffrey’s Answer

    It’s a simple question, but the answer is complex and there’s a lot to consider for citizens who want to carry a knife for utility or personal protection purposes.

    First of all, knives, daggers, swords, and other cutting surfaces are not included in the Constitution’s right to bare arm. That right, contained in the 2nd Amendment, is limited to projectile firing handguns and rifles and does not address knives. For this reason, states, counties, and cities can and often have placed restrictions on the carrying of knives, extending to what kind of knife is legal and who can carry them, and to how and where they can be carried, and such.

    Under current Washington State law, it is legal for adults to buy, sell, or a dagger, a dirk, or other stabbing knife, including a hunting knife, a stiletto, and even throwing stars. It is also legal to own a disguised knife, such as a lipstick or belt buckle which turns into a knife. However, as in most jurisdictions, switch blade knives are illegal in Washington as are knives loaded with a springing blade.

    Washington law also specifically outlaws knives in certain places, such as when carried by youths under age 18 or onto a public and private school campus, or when carried by anyone into a local, county, state, or federal courthouse.

    As far as the legality of carrying a hidden or concealed knife, there is no licensing like that which exists for handguns with the concealed pistol license program. Rather state law says outright that no one can lawfully carry a dagger, a dirk, or a sword in public in a fashion which is concealed. It is also illegal to carry or display in public a knife, dagger, a sword, or any other cutting or stabbing instrument in such a manner or under such circumstances that would cause alarm or show an intent to intimidate another. This could be considered an assault in the second degree. The law also vaguely states that It is generally illegal to conceal and carry any “dangerous weapon” or any instrument “capable of causing bodily harm.” However, these conceal carry and display laws do not apply a person doing this in their own home, or at their usual place of business, or when defending themselves against a presently threatened use of unlawful force.

    Now the definition of a dangerous weapon is really something to be mindful of for those who carry knives. Here again, Washington law is pretty vague and the definitions have been changed over time by decisions in the Courts of Appeal and the State Supreme Court. Presently, the legal definition is simply any object capable of producing bodily harm. So a three inch blade can be a dangerous weapon, and so could a nine inch blade. Some cities, such as Seattle, state a blade length, but state law is supreme and there is no specific blade length stated in state law.

    So I wish I could be more clear, but the legality of the knife you carry largely depends of the manner and method in which you carry it and who is carrying it and where. For example, if you walked down Rockefeller Avenue with a nine inch knife in plain sight on you belt, and were not holding it out or pointing it anyone, that’s likely totally legal. But if you walk into the courthouse, that would be a potential misdemeanor in violation of state law.

    There is a lot more on this so you may want to meet with an attorney to get specific advice.

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  • Dumpster diving leagal or not in Auburn wa

    what is the rule for dumpster diving in Auburn wa leagal or not

    Jeffrey’s Answer

    The Auburn, WA Municipal Code apparently has no specific prohibition on the activity of dumpster diving, but you need to be aware that there are a few laws which would be used to make it illegal should the police be motivated to make an arrest. First, you need to be aware of the location of the trash bin or dumpster. If the bin or dumpster is located behind a fence or on private property (whether a no trespassing sign is posted or not), going onto the property to collect trash from a bin may constitute criminal trespass second degree. The same is true of locked dumpsters or receptacles located in alley ways or along streets. If they are locked, then no one is invited in without permission of the owner. The removal of items from a locked dumpster, even something that is unquestionably trash or rubbish, could be viewed as criminal theft.
    Another issue potential issue is laws outlawing private collection or hauling of trash within some city limits. Many towns and cities require expensive licenses or permits to collect or haul trash or waste when the goal is to many money. Depending on the amount of items recovered from a dumpster, the city could hand you out a civil infraction for violating these ordinances. The theory behind this is that trash and waste is often hazardous and potentially harmful to people and the environment, so cities want only people with experience and knowledge of how to handle the potential hazards to handle trash.
    One more thing to think about is what can happen if you happen to find someone’s identity information, bank accounts, or credit card information in the trash. In certain circumstances, possessing these sorts of things can be illegal, and may lead to allegations of fraud or identity theft.
    Finally, other legal commentators have mentioned the U.S. Supreme Court case of California vs. Greenwood which stands for the idea that garbage left out for collection no longer belongs to the person who put it out there, and therefore, taking it is not illegal. However, that case was really about police sifting through a criminal suspect’s garbage and it is not totally applicable to dumpster diving. Furthermore, here in Washington State, our state Constitution creates an enhanced privacy right under which the taking of someone’s garbage by the government or the police actually IS an invasion of privacy. The concern here for private dumpster divers is that in Washington State, one’s garbage is not public domain, and just because something is in the trash does not mean that the public can take whatever they want out of one’s garbage.
    So the bottom line is, if you want to dive into a dumpster or dig through a trash bin, you will be best served by observing common sense and understanding what the potential legal pitfalls are. And the very best way to dumpster dive will be to get the permission of the person who owns the dumpster. Receiving this permission could go a long way toward insulating you from claims of criminal wrongdoing.

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  • Should I hire attorney?

    Hello, been with navy a year and half. I work for a special program called PRP program. I went to a doctor due to Anxiety/depression they diagnosed me with failure to adapt to PRP program. Usually people get new orders. But the CO changed the way ...

    Jeffrey’s Answer

    An administrative separation for mental health reasons usually results in an honorable discharge with qualifying veterans benefits. The discharge can take a while and will sometimes require that you undergo a medical review board and receive an exit physical to determine your level of disability, if any. But an administrative discharge for "other than honorable" conditions, or "OTH" as you stated it, is very different. This level of discharge requires proof that you committed some sort of misconduct. Furthermore, if the Navy desires to have your discharge characterized as OTH, you have the right to a board of inquiry of at least three officers who will hear evidence against you and determine whether there is any basis for your discharge. The Navy usually moves very fast on any sort of administrative discharge, so if you desire to have a lawyer on your side, you need to find one right away. Legally, you are not required to have a lawyer on a discharge case, and it's possible for you to sign away your rights if you do not know what you are doing.

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  • I was charged with RCW 9a.36.050 , It was accident, done not intentionally, nobody was hurt. They offered me a diversion program

    Is the program the best option for me? What odds the program has? How long does it last ? What is Max sentence for the crime if nobody is hurt

    Jeffrey’s Answer

    RCW 9a.36.050 is a charge of reckless endangerment. Under this statute, "A person is guilty of reckless endangerment when he or she recklessly engages in conduct not amounting to drive-by shooting but that creates a substantial risk of death or serious physical injury to another person." This crime is a gross misdemeanor offense, with a maximum punishment of 364 days in jail and a $5.000.00 fine. No one ever gets this on their first offense. Especially if this is your first ever driving offense and there was no accident or injures, the likely sentencing range may be from zero days in jail up to three or four, depending on what court you are in.

    A diversion program is typically where the case against you gets continued out, usually six months or a year, and you are required to maintain good behavior for that time. Sometimes you will be required to also complete some amount of community service, take a driving class, or pay some amount of fees to the court. In exchange for doing all of that, the charge against your either gets reduced to some lesser charge or becomes an infraction, or it is dismissed completely. The final outcome should be something you will be made aware of in writing before you agree to enter into the diversion.

    Another important aspect of almost all diversions are the "default provisions." If you enter a diversion, but you subsequently get arrested for another crime, or if you fail to pay your fees or if you do not complete your customer service, many court will revoke the diversion and then enter a guilty verdict on your case. Once again, all of the default provisions should be clearly stated in writing and given to you before you enter into a diversion.

    The decision of whether or not to enter into a diversion program is sometimes really easy, and sometimes it’s not so easy. If you know you did the crime, then a diversion is good way to get deliverance from a conviction, provided you can remain law abiding and comply with all of the diversion’s terms. But if you’re innocent, you may want to pass and consider going to trial and seek an acquittal. Either way, you need legal counsel to guide your decision making.

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  • Can the Washington State Patrol (I know has exemptions) or any local or Sheriff's vehicle be unmarked sans ID sticker?

    According to RCW 46.08.065 Publicly owned vehicles to be marked — Exceptions. ( it says WSP is exempt from displaying things such as their agency name, the state seal, and "For official use...

    Jeffrey’s Answer

    RCW 46.08.065 certainly does require that state-owned vehicles be conspicuously marked as part of the State Motor Pool or as a publically-owned vehicle, and subsection 3 of that law provides for an exemption to the Washington State Patrol. This exemption allows the WSP to be relieved from marking any vehicles when it is being used for "general undercover or confidential investigative purposes" or for traffic control purposes. The latter “traffic control” use must be with the prior approval of the WSP Chief, but the law does not mention where that approval must be documented. Also, there is no clear definition of "traffic control" within the statute. Currently, the WSP claims that traffic enforcement is the same thing as traffic control, but to my knowledge, this issue has not ever been raised before the Washington State Supreme Court.
    Presently, the WSP seems to rely upon this statute to allow for over 200 unmarked patrol cars statewide, according to a 2012 newspaper report. The WSP has a special team of troopers who are assigned special unmarked vehicles in which to preform emphasis patrols in various parts of the state. These vehicles certainly are a very effective tool in catching unsuspecting drivers who would normally drive closer to the rulebook if they had sight of a marked patrol car.
    You asked about local law enforcement and whether or not this law permits cities, town, and counties to operate unmarked police cars. I think the law does allow that. Further down in the same statute, RCW 46.08.065 (1) it states: "This section [requiring conspicuous marking of official vehicles] shall not apply to vehicles of a sheriff's office, local police department, or any vehicles used by local peace officers under public authority for special undercover or confidential investigative purposes." Also, there is a state rule under WAC 308-96A-080 which easily allows almost any state agency (not just law enforcement agencies, mind you) to obtain undercover and confidential license plates for their official vehicles, as long as they can comply with a some simple and basic requirements.
    I take all of this to mean that there is a fairly strong legal basis for law enforcement agencies at all levels in the state to utilize undercover and unmarked vehicles. I also speculate that even if this statute was not totally complied with and an officer in an unmarked car issued a ticket or made a traffic stop leading to a criminal arrest, the fact that he/she may have used an illegitimate unmarked patrol car would probably not be material. Police officers can be on foot, in an aircraft, on a bicycle, on a horse, in someone else's car, and if they happen to observe some situation and they develop a reasonable articulate suspicion that a traffic violation occurred, they can make a traffic stop on any motor vehicle and investigate. Noncompliance with these laws and rules may lead to civil liability for the agency, but there would probably be no standing to get relief in a criminal court if a non-compliant unmarked car was used.

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  • In WA state is it legal for our neighbors to smoke weed outside (in their back yard)?

    Smoking pot in their back yard isn't a "public" place, yet it isn't "inside the home" either, so I am unclear on the law. But now that it's summer I want to leave my windows open with out smelling skunk. It's rather inconsiderate of them. But befo...

    Jeffrey’s Answer

    It sure is a different time in Washington State with recreational marijuana use now being legal, and soon there will even be legal retail establishments selling it in all parts of the state. I have heard from many people, that even though it is now legal, they do not plan to use it and, like you, they feel uncomfortable seeing people use it in their presence and smelling it on the breeze.

    Just to review, recreational marijuana use was legalized under Initiative 502 after 56% of the voters approved it in the general election of 2013. The new law permits individuals over the age of 21 to obtain, possess, and use marijuana or cannabis for recreational and non-medical uses, and it also authorizes the creation of a state-wide regulated and taxed system for producing and selling the drug as well.

    The law which came out of I-502 is RCW 69.51a, and it creates some strict limitations on this newly created legal privilege. First, as I already said, only individuals over age 21 can partake. Secondly, virtually no driving is allowed after use of marijuana, and anyone caught driving with 5 nano-grams or more of THC in their blood can be prosecuted for DUI. And third, which is what you have asked about; all marijuana use under the statute must be done “in a manner or place which is [not] open to the view of the general public.” See RCW 69.52a.060(1). The law also says that employers can require employees to not use marijuana as a condition of their employment.

    In the scenario that you describe, while your neighbors may be at their home while they are using marijuana, if you can see them doing it, it would be a violation of the letter of the law. This violation would be a Class 3 civil infraction, which is similar in rank to that of a littering ticket, so it’s not that serious. I think that if you did call the police, the call would be treated as a very low priority, and the 911 folks may actually say there is nothing they can do for you.

    As far as smelling the scent of burning marijuana, that alone would appear to be not in violation of state law. It’s similar to smelling some regular cigarette smoke inside of your apartment because your neighbor next door is smoking. It may be bothersome and annoying, but it’s not technically illegal.
    Perhaps you can talk to your neighbors and ask them to go inside or to not smoke pot while you are home. If this is an apartment complex, you may be able to ask your landlord for assistance.

    By the way, some towns and cities in Washington State are acting to become marijuana free zones, which would make it once again illegal for anyone to use or possess marijuana. I do not know where you live or if your town is considering this, but if you feel strongly about this issue, you may want to contact your city government and ask.

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