4 tips for speaking with law enforcement
by attorney Jeffrey Merton O'Holleran
Speaking with police can be stressful, frightening and land you with a conviction if you don't play your cards right. Here's what you need to remember.
What if a person dies before bringing a personal injury lawsuit?
Hundreds of protesters arrested across the country. What are they being charged with? Recently, the resolutions of police brutality cases in Missouri and New York have made America more deconstructive than ever. Protesters in the country's major cities are angry that white police officers were not indicted by a grand jury for the unarmed deaths of two black men. Read more here: http://www.jacksonwhitelaw.com/criminal-defense-law/2014/12/10/what-are-protesters-being-charged-with/ Chicago Mayor Pushes for Reduced Penalties on Pot Possession In late September, Chicago Mayor Rahm Emanuel asked the General Assembly to decrease the penalties of marijuana possession throughout the state of Illinois. He is hoping for the penalty to go from a felony to a misdemeanor for those caught with a gram or less of any controlled substance. Learn more here: http://www.jacksonwhitelaw.com/criminal-defense-law/2014/12/08/chicago-mayor-pushes-reduced-penalties-pot-possession/ What exactly is protected by the 1st Amendment? There is no simple definition for free speech, and subsequently, it seems like the limits of the 1stamendment are constantly being tested and redefined. With the rise of social media, the argument of what constitutes free speech is now more prevalent than ever. American citizens who think they're protected by the 1st amendment, even online, are finding themselves in a courtroom more and more for making ignorant threats via social media, or slandering businesses on Yelp. See the entire story: http://www.jacksonwhitelaw.com/criminal-defense-law/2014/12/05/what-is-protected-by-the-1st-amendment/ If I Have a Medical Marijuana Card, am I Allowed to Smoke in Public in AZ? No, you can't smoke medical marijuana in public places, but you can freely consume marijuana edibles anywhere you want if you have a medical marijuana card. However if you're going to be driving, you should make sure any trace of marijuana is out of your system, edibles or not, because even if you have your medical card, you're still legally bound to Arizona DUI law. Read on: http://www.jacksonwhitelaw.com/criminal-defense-law/2014/12/03/can-i-smoke-medical-marijuana-publicly/ Police Attempt to Prevent Super Bowl Prostitution in Phoenix Valley As travelers from all around the world come to the Phoenix Valley to watch the Super Bowl, it seems something comes with them: an influx in sex trafficking. When the Super Bowl is in town, some sports fans are in search for a good time, which may include drugs and sex. The FBI and local Arizona police departments are preparing for this. Read the entire blog: http://www.jacksonwhitelaw.com/criminal-defense-law/2014/12/01/police-attempt-prevent-super-bowl-prostitution-phoenix-valley/ Charges for Fraudulent Identification in Tempe, AZ Each fall at ASU, Tempe Police run a "Safe & Sober" campaign to prevent deaths from underage drinking and DUI's. But, despite best efforts by authorities, students and minors continue to use fake ID's in the months to follow the campaign around Tempe, and especially in the popular club district, Mill Avenue. Read more: http://www.jacksonwhitelaw.com/criminal-defense-law/2014/11/26/fraudulent-identification/
Aviana Bailey v. Daytona Beach Police News Coverage of Police Shooting
First, what is my legal claim? There are three main types of civil actions: tort, breach of contract, and statutory/constitutional claims. The damages (money awarded) depends on the type of claim the plaintiff brings. As I deal almost exclusively with auto accidents, this post will focus on the types of claims typically arising from auto accidents: negligence and breach of contract. What is negligence? Negligence is a tort. Tort claims cover all types of wrongful actions, including negligence, defamation, tortious interference with business relations, civil trespass, and intentional infliction of emotional distress. Basically, if someone wrongfully causes you harm, there might be a tort that would let you sue them for it. There is no complete list of all torts because they are constantly evolving and vary from state to state. For instance, in certain situations you used to be able to sue someone who promised to marry you but didn't (breach of promise to marry, or "heart balm"). You also used to be able to sue a person with whom your spouse had an affair (alienation of affection). As society has changed, most states have decided not to recognize those torts any longer. New torts rarely appear for two main reasons. First, to quote Ecclesiastes 1:9, "What has been will be again, what has been done will be done again; there is nothing new under the sun." That is, nearly every situation that can be reasonably imagined has already been litigated somewhere at some time, and there is probably already a tort in existence to cover a particular wrongful act that causes harm. Second, over the last century or so, the legislatures have taken over the creation of new legal actions. Torts aren't created by law but rather by court decisions. Since 1900, we have seen legislatures give rise to the statutory right to bring suit. Due to laws created by legislatures, a person can now bring a personal claim for everything from police brutality to strict products liability (not in Delaware, though) to workers' compensation. With the rise of the statutorily-created right to bring a lawsuit, there has been less of a need for the expansion of court-created torts to cover new situations. How tort claims for negligence apply to auto accident claims Car accidents have been around for as long as cars have been around. While the tort of negligence is older than cars, the facts leading to most auto accidents easily fit into the tort of negligence. A claim for negligence in Delaware has four elements, each of which the plaintiff must prove by a preponderance of the evidence: the existence of a duty of care; the breach of the duty of care; causation; and damages. For car accidents, a typical case looks like this: there is a general duty to other members of the driving public to follow the Rules of the Road and drive safely; some driver fails to follow the Rules of the Road or otherwise drives unsafely and causes an accident; my client suffers damages (i.e., personal injury, property damage, lost wages); the accident was the cause of my client's damages. While most of this seems like common sense, it seems like the causation element is the one that most mystifies my clients. You can't simply say "I didn't have back pain before the accident and I did have back pain after the accident. Pay me." Instead, you must have a medical expert testify that, that to a reasonable degree of medical probability, the back pain after the accident was caused by the accident. Similarly, you can't just say "The other guy was speeding at the time of the accident and therefore he is at fault." The plaintiff must prove that the violation of the Rules of the Road (or other breach of the duty of care) caused the accident. Simply breaking the law at the time of the accident is not the same as causing the accident. Once Negligence is proven, then what? If a plaintiff can prove the existence of a duty of care, a breach of the duty of care, and causation, the only thing left to prove is damages. Due to how Avvo requires these guides to be structured, I will explain each type of damages in a tort claim under its own header, below. Special Damages (a.k.a. "boardable damages") These are damages upon which we can reasonably put a dollar figure, although we often must hire one or more experts to do so. Special damages include past and future lost wages, lost earning capacity, and past and future medical expenses. In Delaware, any damages that could have been covered by your PIP insurance cannot be included as part of your claim for special damages. General Damages These are damages that cannot easily be valued at a certain amount. They include past and future pain and suffering, past and future loss of enjoyment, permanent physical impairment, disfigurement, humiliation, embarrassment, and loss of consortium. Punitive Damages (a.k.a. "exemplary damages") These are unlike general and special damages. Those damages are theoretically designed to "make the injured party whole," even though money can rarely make up for things like significant pain or permanent impairment. Punitive damages, on the other hand, looks primarily at the at-fault driver's actions and only considers the innocent party's injuries secondarily. They are only available when the at-fault driver was engaged in especially bad, stupid, or evil actions when the innocent party was injured. The purpose of punitive damages is to punish the at-fault driver or to make an example out of him in order to deter other members of society from engaging in similar recklessly dangerous conduct. The only relationship between punitive damages and the actual damages is that punitive damages must have some rational relationship to actual damages. For instance, a jury can't find that a plaintiff suffered $5 in actual damages and then award $500,000 in punitive damages. The US Supreme Court has said that in the vast majority of cases where a jury awards punitive damages, they must be no more than nine times the actual damages. Punitive damages are practically never covered by an at-fault party's insurance policy. This means that, as a practical matter, an injured person can very rarely collect on a claim for punitive damages. However, when there is a valid claim for punitive damages, some insurance companies are more interested in settling the claim in order to protect their insured from a large award of punitive damages. On the other hand, some insurance companies don't care at all about the punitive damages claim because they know they won't be on the hook to pay it. Uninsured and Underinsured Motorist (UM/UIM) Claims Not all claims from auto accidents are technically based on negligence. Sometimes the at-fault driver doesn't have insurance, or he flees the scene and is never identified. In those cases, the injured party might have uninsured motorist coverage under their own insurance policy. Similarly, sometimes the at-fault driver's insurance isn't enough to cover all of the injured party's damages, but the injured party has underinsured motorist coverage under his own policy. (Uninsured and underinsured motorist coverage is not mandatory in Delaware, but it is highly recommended. It is a great value for a relatively low price.) If a person must make such a claim against his own insurer, then the claim is based on the insurance contract, not negligence. Basically the injured party's insurance company "steps into the shoes" of the at-fault party's insurance company. As such, the plaintiff must prove all of the elements of negligence plus that there was a valid UM or UIM insurance policy in effect on the date of the accident and that he qualifies for coverage under that policy. All of the damages available for a straight negligence claim are the same for a claim under UM or UIM coverage, except punitive damages cannot be claimed for the at-fault driver's bad actions. Making your own insurance company pay a punitive award for someone else's bad actions does not punish the at-fault driver for his bad actions nor does it deter other drivers from driving recklessly. Also, the statute of limitations for UM/UIM claims is different than claims for negligence. As a tort for personal injury, a negligence claim in Delaware has a two year statute of limitations, starting from the date of the accident. As a UM/UIM claim in Delaware is based in contract, it has a three year statute of limitations, beginning with the date that your insurance company denies the claim. Evaluating the claim Now you understand the types of damages that can be awarded in a car accident claim. A claim against the at-fault driver is a one time only deal. You can't settle your claim and then come back later for more money later. Once you settle your claim, for all intents and purposes it is gone forever. That means you have to know a lot of information in order to properly evaluate a claim: What is the total past medical treatment? Were there any bills for past medical treatment that were incurred after PIP? Will there be future medical treatment? If so, what will it cost? Is there any permanent physical impairment? If so, how much? How will it affect the person's lifestyle? Can you identify any past and/or future lost wages or lost earning capacity caused by the accident? Is the treating physician able to provide strong testimony that the injuries and treatment were caused by the accident? How likable will a jury find the plaintiff? How many experts will be needed to prove the case to a jury, and how much will they cost? However, by far and away the most important question is: What kinds of awards have local juries given in the past for similar cases? As most of the answers to these questions can't be known until you have either finished treating or you have essentially reached a plateau in recovering, your case can't honestly be evaluated until long after your likely first meet with your attorney. And that's why my honest answer to clients when they meet me and ask what the case is worth is "Nobody knows."
The Bad News The general rule is that widespread violence, crime, and civil unrest by itself does not give rise to a claim for asylum. Although their homeland is experiencing civil-war-like conditions, Venezuelans cannot win an asylum case on that basis alone. That is why Venezuelans should meet with an attorney before filing an application for asylum. The Good News In 2013, the Eleventh Circuit Court of Appeals, which controls any asylum case filed in Florida (where many Venezuelans live), issued an decision that helps. Go Wan Tjhing v. U.S. Att'y General said "that general strife or mass unrest has embroiled a country in violence does NOT eliminate a claim that a petitioner was persecuted on the basis of a . . . protected ground." What It Means An asylum claim must be tied to a protected ground: race, religion, nationality, political opinion, or membership in a particular social group. The fact that an applicant's home country is experiencing widespread violence HELPS an asylum applicant only if it shows increased fear of persecution due to worsening country conditions. For example, a Jewish person (or a gay person, or a property owner) may have been harmed in Venezuela and the overwhelmed police force was not able to respond to the call for help. THAT would be a good asylum case. The person was harmed BECAUSE of their religion or membership in a social group. Hire an Experienced Attorney An asylum applicant should always hire an expert who can help them navigate this complicated area of immigration law. Entire books have been written about asylum and not every immigration lawyer has the necessary experience with these cases. Although the author is a Board-certified immigration expert, this guide is intended as general information and not specific legal advice. This communication does not create an attorney-client relationship. Schedule a consultation with an attorney to address individual concerns. For more information on asylum or benefits available to asylees and refugees, click through to the links below.
Understand How Police Use Social Pressures to Get Information As many say, the first step in avoiding a trap is knowing of its existence. One of the biggest pitfalls for clients I've seen in my practice is the social pressure that people often succumb to when police want information. Most will admit, it's awkward to tell someone no -- especially someone with a gun and a pair of handcuffs. Police are trained to take advantage of this. So learn and understand your rights. It may result in the most tense exchange you'll ever have with another human being, but just remember it beats going to jail. Consensual Encounters - It's OK to Walk Away Sometimes you are detained by police and don't have the right to leave. The most common example of this is a traffic stop -- when the lights flash and the siren blares, the police have given a clear indication that you are being detained. Other times, it's not so clear. A policeman shouting to you on the street, "Can I talk to you?" is a request for you to speak to him. If there is any ambiguity, be sure to ask if you are being detained. Courts have held that police can ask anyone questions and that if the encounter is consensual (meaning they are not officially detaining you) you're free to walk away and not answer any questions. Again, remember the social pressure exerted by law enforcement. They often try to make people feel rude for not engaging them. Don't fall for it if you find yourself in this situation. Do be careful, however, of your local "Stop-and-Identify" laws -- police must have a "reasonable and articulable suspicion" that a crime has been committed, then they have the right to ask you for identification. Doubt Yourself to Help Yourself Once during my time with the Public Defender, I was giving second advisements to a group of inmates accused of felonies. One inmate began to argue with me about speaking with police. It was his first time in the system and he said, "Why not? I got nothin' to hide! They say the truth will set you free, right?" The room burst out with laughter. Virtually everyone who's been caught up in the criminal justice system understands that the only effective tool you have against police is your silence. If you find yourself being asked to provide information to police about yourself, your best bet -- AGAINST ALL YOUR INSTINCTS -- is to stay quiet and (if applicable) invoke Miranda. Assume that you can only hurt yourself if you talk. Assume that if you are contacted by police that you have done something wrong and they are looking for information directly from your mouth to make their jobs easier. Invoke Miranda Miranda warnings and the Fifth Amendment right against self-incrimination is a hugely complicated area of the law. So here's the bit you need to know: when you've been taken into custody, you must say the following to properly invoke your rights, "I DON'T WANT TO ANSWER ANY QUESTIONS. I WANT AN ATTORNEY." That's the magic language that law enforcement need to hear. It won't get you out of trouble instantaneously, but it is the only tool at your disposal to protect yourself and keep police from collecting evidence from your lips.
1. DO NOT give the police permission to search you, your vehicle or your home. 2. DO NOT resist or attempt to flee from the police. 3. DO NOT answer any questions until you have spoken to an attorney. 4. DO NOT make any statement. 5. DO NOT lie to the police. 6. DO be respectful at all times. 7. DO comply with all their instructions. 8. DO make sure that you get the name and badge number of all officers present as well as any witnesses, if possible. 9. DO ask to see a search warrant 10. DO make sure you call your attorney at the first opportunity.
"I would like to remain silent," and "I do not consent to this search." When stopped by the police, the most important phrases to remember are "I would like to remain silent," and "I do not consent to this search." Remember that what you say to the police is always important. EVERYTHING you say can be used against you. You have the right not to speak. To exercise this right, you should tell the police, " I would like to remain silent." You NEVER have to consent to a search. You NEVER have to consent to a search of yourself, your belongings, your car, or your house. If you consent to a search, it can affect your rights later in court. If the police say they have a search warrant, ask to see it. If they don't have a search warrant, say "I do not consent to this search. This may not stop the search from happening, but it will protect your rights if you have to go to court. If the Police do illegally search you, Do not interfere with or obstruct the police - you can be arrested for it. If you are stopped, questioned, or frisked If you are stopped, questioned, or frisked, you should ask if you are free to leave. The police may pat down your outer clothing if they suspect you pose a danger to them or others. Do not physically resist, but say, "I do not consent to this search." If the officer asks you to empty your pockets, DON'T DO IT. Say "I do not consent to this search." If the officer reaches into your pockets or bag, it would be considered a search. If you are stopped in your car. If you are stopped in your car, show the police your driver's license, registration and proof of insurance. There are certain cases where your car can be searched without a warrant. However, NEVER consent to a search. Clearly say, "I do not consent to this search." If you are arrested or taken to a police station If you are arrested or taken to a police station you have the right to remain silent and the right to talk to a lawyer. DON'T TELL THE POLICE ANYTHING EXCEPT YOUR NAME AND ADDRESS. Don't give any explanations, excuses or stories. If you have a lawyer, ask to see your lawyer immediately. Do not say anything to the police without speaking to a lawyer first. Do not make any decisions in your case or sign any statements until you have talked with a lawyer. If you are permitted to make a phone call, anything you say at the police station may be recorded or listened to. NEVER talk about facts of your case over the telephone.
Recording governmental officers engaged in public duties is a form of speech through which private individuals may gather and disseminate information of public concern, including the conduct of law enforcement officers. See, e.g., Glik v. Cunnife, 655 F. 3d 78, 82 (1st Cir. 2011)(“[b]asic First Amendment principles" and federal case law “unambiguously" establish that private individuals possess “a constitutionally protected right to videotape police carrying out their duties."). The application of this right to the conduct of law enforcement officers is critically important because officers are granted substantial discretion that may be used to deprive individuals of their liberties. Individuals have a First Amendment right to record and photograph police officers, as long as they do not engage in other conduct that delays or obstructs officers in the performance of their official duties. Individuals have a right to record in all traditionally public spaces, including sidewalks, streets, and locations of public protests, and in any other area where individuals have a legal right to be present, including an individual’s home or business, and common areas of public and private facilities and buildings. Officers should be prohibited from interfering with recording of police activities except in narrowly circumscribed situations. Officers should be advised not to threaten, intimidate, or otherwise discourage an individual from recording police officer enforcement activities or intentionally block or obstruct cameras or recording devices. A person should be permitted to record public police activity unless the person engages in actions that jeopardize the safety of the officer, the suspect, or others in the vicinity, violate the law, or incite others to violate the law. However, an individual’s recording of police activity from a safe distance without any attendant action intended to obstruct the activity or threaten the safety of others does not amount to interference. Nor does an individual’s conduct amount to interference if he or she expresses criticism of the police or the police activity being observed. See letter from the U.S. Department of Justice Civil Rights Division, which is available at: http://www.justice.gov/crt/about/spl/documents/Sharp_ltr_5-14-12.pdf.
Law enforcement officers are here to protect us. Most cops in Tampa, St. Petersburg, Clearwater, Sarasota, and nearby towns are genuinely hard working regular folks who put their lives on the line daily. Unfortunately, there are bad apples in every bunch and law enforcement officers are no different. While it is true that the State of Florida has sovereign immunity for the actions of its employees, police misconduct, police brutality, and cases of discrimination by police can be brought pursuant to 42 U.S.C. Section 1983, originally a part of the Civil Rights Act. Our nation’s civil rights laws are designed to protect us, the public from abuses by government. Civil rights laws allow attorney fees, compensatory damages for things like medical bills, and punitive damages as punishment for wrongdoing by the State. Being found Not Guilty or getting the charges against you dismissed does not mean you have a claim. However, that is always the first step in the process. Police are immune from 1983 lawsuits for the performance of their jobs unless willful, unreasonable conduct is proven. Simple negligence, (ie, deviating from the reasonable standard of performance expected from officers) isn’t good enough for a claim. Civil rights claims under 1983 occur when willful police acts that violate an individual's constitutional rights happen. For example, if an officer arrests, assaults, and strikes you in violation of your right to free speech, you may have a claim. In order to win a civil rights claim in Hillsborough, Pinellas, Polk, or Sarasota County, your Tampa Civil Rights attorney must prove that the actions of the police exceeded reasonable limits, violated the victim's constitutional rights, and produced injury or damages to the victim in some way (such as loss of job, medical bills, damage to reputation, etc). If you think you’ve been a victim of police misconduct, and you are now charged with a crime, call Tampa Attorney Maj Vasigh from the law firm of MAJ VASIGH, PA to fight on your behalf now. Together, you will develop a plan of attack to fight and beat the criminal charge, then endeavor to file a civil rights claim in Federal Court in the Middle District of Florida. If you believe you may have had your rights violated: 1- Immediately write down what happened exactly how you remember it. 2- Track down witnesses and obtain their names and contact information 3- Preserve any evidence such as broken windows or torn clothes 4- Take pictures of all bruises, wounds, and evidence of violence 5- Contact the law firm of MAJ VASIGH, CRIMINAL DEFENSE ATTORNEY to get your case started. The Tampa Police Department is notorious for getting away with frequent civil rights violations. They do it so often, officers don’t even realize they’re acting unlawfully. Attorney Maj Vasigh has first hand knowledge of what it’s like behind the scenes. Call (813) 800-1111 now for a no-cost consultation to determine whether you have a case.