Baldauf Masser https://www.baldaufmasser.com Legal Help Thu, 24 Jan 2019 21:18:04 +0000 en-US hourly 1 https://wordpress.org/?v=5.2.2 Purgatory Cannot be Worse than Hell https://www.baldaufmasser.com/2018/12/11/purgatory-cannot-be-worse-than-hell/ Tue, 11 Dec 2018 16:31:58 +0000 http://www.baldaufmasser.com/?p=25236 We wrapped up the firm’s first 9th Circuit oral argument on Friday. If you want to watch, take look here. Our claims center around a pre-trial civil detainee at Washington’s Special Commitment Center who faces arbitrary restrictions on his constitutional rights, particularly his First Amendment rights. If he were a convicted prisoner doing time, he […]

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We wrapped up the firm’s first 9th Circuit oral argument on Friday. If you want to watch, take look here.

Our claims center around a pre-trial civil detainee at Washington’s Special Commitment Center who faces arbitrary restrictions on his constitutional rights, particularly his First Amendment rights. If he were a convicted prisoner doing time, he would have less restrictions and, more importantly, less arbitrary restrictions on those rights. Because he is not yet had a trial and is not a prisoner, he is in purgatory. And purgatory cannot be worse than Hell. Jones v. Blanas, 393 F.3d 918, 933 (9th Cir. 2004).

Appellate work is work for nerds (we mean that in a good way). Briefing and oral arguments allow narrow, and sometimes not-so-narrow, issues to be worked out. A healthy background of caselaw helps to give trial judges guidance on specific issues that can make trials and litigation much more streamlined. Plus, it’s just fun. It’s rare to be able to get into technical legal issues during the average case.

For now, we are awaiting a decision in our case. We’re hopeful the court will return a positive decision to give Washington’s Special Commitment Center guidance on how to handle the rights of their detainees and to make clear that they cannot make capricious decisions regarding constitutional rights.

If you need help with a difficult case or have an appellate issue you would like to discuss, call us at 208-741-5024 or email at info@baldaufmasser.com.

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Respect Renters’ Rights https://www.baldaufmasser.com/2018/03/04/respect-renters-rights/ Sun, 04 Mar 2018 04:46:50 +0000 http://www.baldaufmasser.com/?p=25206 3/7/18 Update: HB 656 will not be heard this year as the House leadership is trying to wrap up the session! There’s a bill in the Idaho Legislature that, put simply, is full of bad ideas. Among the issues we have with House Bill No. 656 are: It allows landlords to evict tenants for any criminal conduct […]

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3/7/18 Update: HB 656 will not be heard this year as the House leadership is trying to wrap up the session!

There’s a bill in the Idaho Legislature that, put simply, is full of bad ideas.

Among the issues we have with House Bill No. 656 are:

  • It allows landlords to evict tenants for any criminal conduct on the premises;
    • Currently, the only crimes the statute specifically allows landlords to evict their tenants for involve drug trafficking.
    • Now, tenants who throw a party that gets out of hand (disturbing the peace, battery, cannabis use, etc.) could be evicted under the statute.
    • We are also concerned that victims of domestic violence could be facing eviction if  the abuser is arrested.
  • It seems to allow for a three-day notice to be served only via mail;
    • Currently, landlords must attempt to serve the notice on the tenant. If that fails, they must mail a copy of the notice and affix a copy to the door.
    • Tenants don’t always check the mail every day. A served or posted notice is much more effective.
    • (Note that there is an odd drafting issue in Section 2 (6-304) that may mean that diligent attempts to serve the notice are still necessary. If 6-304(1) is actually supposed to be a part of the preceding title and is supposed to end in a period, then the service attempt is still necessary. Even then, posting is much more appropriate in order to ensure tenants have the proper notice.)
  • The bill allows for an expedited process for any lease of a tract of land under five acres;
    • The current code only allows an expedited process for the nonpayment of rent or if the tenant is trafficking controlled substances.
  • Finally, the bill may allow landlords to add unreasonable fees to a lease and require a tenant to pay them or be evicted through the expedited process.
    • Less-scrupulous landlords already apply payments to fees first and then claim tenants have not paid their rent. There is no reason to exacerbate this issue.

The balance of power in the landlord/tenant context is already on the side of landlords. This bill unnecessarily creates more of a power imbalance.

There will be a hearing on the bill on March 5th at 1:30 PM at the Capitol. Baldauf Masser will be there to voice our opposition. We hope you’ll join us!

If you are interested in making your voice heard and aren’t sure how to do it, email me or call me and I’d be happy to walk you through your options.

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Fourth Amendment Friday — Get Off My Lawn https://www.baldaufmasser.com/2017/10/13/fourth-amendment-friday-get-off-my-lawn/ Fri, 13 Oct 2017 22:57:32 +0000 http://www.baldaufmasser.com/?p=25165 NOTE: Welcome to the first post in our other new alliteratively-titled weekly blog post series, Fourth Amendment Fridays. With this series we hope to highlight aspects of search and seizure law that may not be widely-known. Our hope is that an informed citizenry armed with this knowledge can assert as robust a protection of their […]

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NOTE: Welcome to the first post in our other new alliteratively-titled weekly blog post series, Fourth Amendment Fridays. With this series we hope to highlight aspects of search and seizure law that may not be widely-known. Our hope is that an informed citizenry armed with this knowledge can assert as robust a protection of their constitutional rights as the law allows. This first post deals with the important concept of the “curtilage.”

“Get off my lawn!” is a phrase we associate with an old codger hollering at young ruffians. What you may not know is that it is also a phrase young ruffians can employ when hollering at law enforcement (although it is probably always advisable to use a measured tone and volume when addressing armed individuals). The reason police may have to get off your lawn is because at least parts of your lawn are likely considered to be part of the “curtilage” of your home. This vaguely gross-sounding word, and the concept it embodies, extends the constitutional protection of your house to the private areas immediately outside your home.

The Fourth Amendment protects against unreasonable searches and seizures. One of the things explicitly protected by this amendment is “houses.” Thus, absent exigent circumstances, police cannot enter and search a home without a warrant. Conversely, police have a right to be in public places and make observations from such places. Thus, it is not an impermissible search for police to stand on a public sidewalk and look through a big picture window into someone’s home. The concept of “curtilage” and its constitutional protection lies in the grey area between these two poles.

In two cases, US v. Dunn and Florida v. Jardines, the US Supreme Court has provided guidance about how curtilage should be defined. They have settled on four factors: proximity, enclosure by a fence, nature of the use and protection from observation. Thus, an area is most likely to be found to be curtilage when it it close to the house, enclosed by a fence, used for a private purpose and protected from observation. Imagine a hot tub immediately outside a back door, surrounded by a tall and opaque fence and used primarily for skinny-dipping and associated activities. This would seem to be the textbook definition of curtilage. Contrast this hypothetical with a play structure, in a front yard, 30 yards from the house, not enclosed by a fence and freely used by neighborhood children in addition to the residents of the house. This gives an example of an area that is unlikely to be found to be curtilage. Hypotheticals in between these two poles would present much more difficult questions.

Both Dunn and Jardines are drug cases (because of course they, as the War on Drugs drives so much of what ails our criminal justice system). In Dunn a barn was found to be outside of the curtilage, and the resulting search upheld, while in Jardines the Court held that the use of a drug dog at the front door of a house without a warrant violated the Fourth Amendment. The question this line of cases raises is: “What can an individual do to develop as expansive a curtilage as possible?” Jardines stands for the proposition that not much need be done to establish one’s front stoop as curtilage, while the defendant in Dunn took many steps to shield his property from the public but was ultimately unsuccessful in his curtilage claim.

My first piece of (boring) advice is that the best thing one can do to avoid police intrusion is scrupulously obey all laws. But, for some, that is easier said than done. For those people, building an large, opaque fence close to their home (while still encompassing the area they desire to claim as curtilage) is a good start. Then, establishing a consistent private use of this area would bolster the claim (nude sun-bathing anyone?). A sign indicating that this is a private area where private activities take place couldn’t hurt.

The concept of curtilage appears to exist chiefly to deter police officers from behaving like peeping toms. Random men can’t cross your fence and come up to your windows, peering between the curtains. This should be true even if these men aren’t so random and have a badge. However, it is never worth it to get into a legal argument with a cop. If you’ve asked an officer to leave the curtilage of your home, and they refuse, don’t get in a fight with them. As always, assert that you don’t consent to a search, would like them to leave and wish to speak with a lawyer. If this doesn’t work, you’ve done everything you can to preserve the issue for your attorney to argue later in court.

In short, the Fourth Amendment’s protection of your home doesn’t end at your front door, but extends beyond it to some unclear and fact-specific degree. Taking steps to ensure your privacy from prying eyes can help to protect your constitutional rights as well.

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WTF Wednesday- Citizens United: Not Wrongly Decided? https://www.baldaufmasser.com/2017/10/05/wtf-wednesday-citizens-united-not-wrongly-decided/ Thu, 05 Oct 2017 00:31:19 +0000 http://www.baldaufmasser.com/?p=25158 NOTE: Welcome to our inaugural WTF Wednesday post. With this series we hope to highlight aspects of the law and legal profession that make one want to cry out “What The #@!*?” Sometimes this will be a decision we think has been wrongly decided, while other times it will consist of criticism of the legal […]

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NOTE: Welcome to our inaugural WTF Wednesday post. With this series we hope to highlight aspects of the law and legal profession that make one want to cry out “What The #@!*?” Sometimes this will be a decision we think has been wrongly decided, while other times it will consist of criticism of the legal culture. In short, we hope you enjoy seeing us pull our hair out in frustration so that you don’t have to. This first post might be more likely to make the reader say “WTF?!” given the position it takes.

 

Citizens United v. Federal Election Commission is one of the most controversial US Supreme Court cases of the modern era. Whole books could be written about the nuances of this decision (and there probably have been at least a couple such books written). For this post, I want to leave those nuances to the side. What Citizens United has come to stand for in our cultural is the proposition that unlimited money can be spent by private corporations on political campaigns. As Mitt Romney said, “corporations are people too.” To card-carrying liberals, this is abhorrent. Somewhat surprisingly, I don’t think this decision was wrongly decided.

To be frank, I think liberals’ dissatisfaction with Citizens United comes down mostly to realpolitik. In short, the Democratic Party does less to look out for corporate interests than the Republican Party, so corporations support Republicans. Democrats want to win elections, so they object to any tool in the quiver of the Republicans or their corporate allies (or masters, depending on your level of cynicism). I think the truly progressive position is to permit unlimited election spending by any person or group of people. This position stems mostly from a sort of First Amendment absolutism.

In Constitutional Law in law school the First Amendment is often discussed, because it provides so much grist for the intellectual mill. What, if any, limits can be placed on the freedoms of expression and association? And how does the First Amendment interact with commercial enterprise? When corporations speak, it is usually to try and get you to buy stuff, but what if what they want is your vote? One answer is provided by what’s known as the Central Hudson four-part test. This test determines whether a government regulation of commercial speech is permissible under the First Amendment. The four questions are:

1. Is the expression protected by the First Amendment? In other words, is it about lawful activity and not misleading? 2. Is the asserted governmental interest substantial? 3. Does the regulation directly advance the governmental interest? 4. Is the regulation more extensive than necessary to serve that interest?

I bring up Central Hudson because the Court has been clear that commercial speech receives less protection than purely political speech. This makes sense, as political speech is the height of what the First Amendment protects. So if some speech can pass the Central Hudson test then it surely must be permissible political speech as well. In short, Central Hudson doesn’t address political speech, but the broader lessons it teaches about regulation of corporate commercial speech should inform our assessment of corporate political speech as well.

Applying the first factor to corporate political speech, it is easy to conceive of plenty of speech that concerns the lawful activity of voting. The second part of the first factor asks whether the speech is misleading. This is almost wholly inapplicable to political speech, as we do not want unelected federal judges determining what is orthodox, permissible or even accurate when it comes political speech. So corporate political speech would seem to pass the first factor.

The remaining three factors discuss the relationship between the speech, the governmental interest in regulating that speech and the regulation actually imposed. This is the juicy part of the discussion. To my mind, as I’ve heard it expressed by the opponents of Citizen’s United, the governmental interest in limiting corporate political speech is to prevent such speech from drowning out the rest of us. Given the economic consolidation of the last century, corporations have more money and power than almost all individuals. If we want individual political speech to have any chance to be heard, we must limit the use of the bullhorn by those who can afford one.

In the age of social media, I don’t believe this argument holds water. Almost all of us have an ever-increasing ability to express our views on a variety of subjects. While not everyone can afford a primetime ad on Sunday Night Football that doesn’t mean that one cannot adequately express their political views. All it takes to have one’s position heard far and wide is a witty and well-crafted tweet or Reddit self-post. No amount of focus-grouped political pablum in 30-second TV ads can compete in our over-saturated media environment. Today, it is the quality of a person’s idea, rather than the quantity, that determines its impact. If this is true, there is no legitimate governmental interest in regulating the quantity of corporate political speech.

Going back to the analogy of commercial speech and Central Hudson, would a government regulation that prohibited Coke from advertising significantly more than Pepsi pass constitutional muster? I believe it would not. What would the governmental interest be? To ensure that consumers’ soda preferences are not unduly influenced by an imbalance in advertising? This would not be a substantial government interest. In the same way that we let the marketplace determine the victor in the cola wars, so too should we let the political marketplace of ideas proceed unfettered.

Citizens United is not wrongly decided? WTF?!

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Lawyers Love Conflict? https://www.baldaufmasser.com/2017/08/26/lawyers-love-conflict/ Sat, 26 Aug 2017 00:44:48 +0000 http://www.baldaufmasser.com/?p=25154 Lawyers love conflict. At least they would appear to, given their choice of career. For trial lawyers in particular, conflict is the name of the game. We have an adversarial judicial process and your job as a trial lawyer is to go to battle on behalf of one of the adversaries. But, speaking personally, I […]

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Lawyers love conflict. At least they would appear to, given their choice of career. For trial lawyers in particular, conflict is the name of the game. We have an adversarial judicial process and your job as a trial lawyer is to go to battle on behalf of one of the adversaries. But, speaking personally, I don’t enjoy conflict. Instead, at times, I find it rather distressing. Having said all this, I still love being a lawyer. The question becomes: how do I reconcile all of this?

The answer, I’ve realized, lies in distinguishing different types of conflict. Going back to my days as a philosophy student, I relish the opportunity to participate in intellectual conflict. By this I mean matching wits in the marketplace of ideas. To me, that’s just fun. And on top of being fun, its societally beneficial. By moving the ball forward toward a more perfect understanding of the world around us, intellectual conflict serves us all. At its heart, I think that’s what being a lawyer is about: intellectual conflict. For some lawyers, like contract lawyers, their job is chiefly to anticipate conflicts and head them off through wise legal drafting. For litigators, especially appellate attorneys, the intellectual conflicts are part and parcel of engaging in such work. However, wrapped up in these intellectual conflicts are often emotional conflicts. This is particularly true in the family law context.

Divorces are difficult, even when necessary and in both spouses’ best interests. This is because, while divorce is nominally the legal dissolution of a legal bond, in reality it is the culmination of a history of a chiefly emotional and intimate relationship. Thus, the parties come to the negotiating table with emotions infused into all aspects of the intellectual discussion. As a family law attorney, one of my jobs is to listen to and validate my client’s emotions as it relates to their case. But another one of my jobs is to help the client place their emotions to the side, as best as one can, and move through the divorce process in a somewhat more clear and dispassionate way. That is not to say that that is easy to do. But ultimately, removing or lessening emotional conflict allows the intellectual conflict to proceed at a brisk and efficient pace.

Today, someone got angry with me. I’ve thought about it pretty much the whole day since. I don’t think I did anything untoward to inspire the anger, but I understand it nonetheless. But that doesn’t mean that this person’s emotions, nor my emotions, are serving either of us particularly well. Best would be to return to the substance of the intellectual conflict, shedding whatever emotional baggage has become attached. I hope I always remember to do that.

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Handling Traffic Stops https://www.baldaufmasser.com/2017/08/10/handling-traffic-stops/ Thu, 10 Aug 2017 00:39:38 +0000 http://www.baldaufmasser.com/?p=25146 The best ways to handle a traffic stop, from a safety and constitutional law perspective.

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We previously discussed what to do during an arrest. During that discussion, we only talked about how to handle police interactions when you are on foot. But modern Americans encounter the police in other scenarios. One of the most common is the dreaded traffic stop. Let’s talk a bit about how to handle those.

As always, this post is not legal advice. If you feel you need legal advice, feel free to call or email us.

We’ll talk a bit about drunk driving in a later post, so for now we’re going to stick to the basics. Remember that in each of these situations we are trying to ensure you are as safe as possible and to help you exercise your constitutional rights.

While you are generally free to travel in your vehicle, officers may stop you if they have reasonable suspicion of a violation of the law. The underlying violation may stem from a traffic violation, a DUI, or any other crime. Often, officers will make what are known as “pretext stops,” stopping drivers for small violations because they have a hunch a more serious crime has occurred. This is constitutional.[1]

If you are stopped, come to a complete stop in a safe area, turn off your engine, turn on your dome light, roll down your driver and passenger windows an inch or two (assuming you have automatic windows, roll down just the driver if you don’t and you are alone), and put your hands on your wheel at 10 and 2 o’clock. Keep your hands there until the officer approaches your window. Now is not the time to start rummaging through your glovebox[2] looking for your insurance cards. Remember that officers are very wary during these stops as they don’t yet know who you are and are out in the open while you have cover and are obscured by your car windows and the darkness of the vehicle. Stay calm, cool, and collected.

When the officer gets to your window, he’ll probably ask you something like, “Do you know why I pulled you over?” “Do you know how fast you were going?” or “Did you see that red light?” All of these questions are designed to get you to admit guilt to a traffic violation. Generally, the best way to respond is to answer with, “No, sir.” You do have the option here to cooperate and say that you were going a bit fast or that you missed a stop sign, but this eliminates any possibility of challenging the ticket if the officer does issue one. As always, never lie to the police. “No, sir,” is not a lie as you may have every idea as to why he pulled you over but you may not be sure. Read the situation and use your best judgment, but the default stance should be to not admit to a crime.

If you feel that telling the officer that you do not know why they pulled you over is a lie, you do have the option of just immediately invoking your right against self-incrimination. As a practical matter, this might cause the officer to be more aggressive with the stop. No matter what option you decide to go with, understand why you are picking that option and plan ahead.

The officer will almost certainly ask for your license, registration, and insurance. You are required to provide that information, so when he does, let him know that you need to reach into your pocket for your license and into your glovebox for your other information and ask if that is okay. Calmly collect the documents and hand them through the window.

Just like the driver, passengers are also seized when a vehicle is pulled over.[3] For their safety, officers may order you and your passengers out of the vehicle for a reasonable amount of time and conduct a pat down.[4] They may also separate the occupants and question them individually (this is usually done if they suspect they will be or are being lied to). Everyone in the car should invoke their right to remain silent and ask for an attorney unless they plan on cooperating. See our previous post regarding arrests for a discussion about deciding whether or not you should speak, but generally, you should not. The officer may bluster and complain, but again there is no reason you should do their jobs for them.

Officers may be able to conduct a quick safety search of the vehicle once they have ordered the passengers out if there are “specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant” that the suspect is dangerous and the suspect may gain immediate control of weapons.[5]

Officers may conduct a more thorough search of your vehicle if they have probable cause to do so or if you consent. Just like with a pedestrian stop, you need to be very clear that you do not consent to a search if they start to poke around the vehicle. Again, you should not consent to a search to preserve your constitutional rights and to keep “bad apples” from potentially planting evidence in your vehicle. If they really want to search your vehicle, they will need to produce a warrant or impound the vehicle and conduct an inventory search (especially likely in the case of a DUI).

They might also conduct a search of the vehicle incident to arrest if it is reasonable to believe that arrestee might access the vehicle at the time of search or that the vehicle contains evidence of the offense of the arrest.[6]

 

Special note: Have you ever wondered why you’ve never seen DUI checkpoints in Idaho? It’s because they’re unconstitutional in this state. In State v. Henderson,[7] the Idaho Supreme Court held that “[i]n light of the individual’s right of freedom from arbitrary governmental intrusion, and the questionable efficacy of roadblocks, we conclude that such roadblocks cannot withstand constitutional scrutiny.”

 

[1] Whren v. United States, 517 U.S. 806 (1996).

[2] Also known as “jockey box,” “glovie,” “cubby-hole,” or “glove-tail.” Because humans are interesting.

[3] Brendlin v. California, 551 U.S. 249 (2007).

[4] Pennsylvania v. Mimms, 434 US 106 (1977).

[5] Michigan v. Long, 463 U.S. 1032 (1983)

[6] Arizona v. Gant, 556 U.S. 332 (2009

[7] 756 P.2d 1057 (1988).

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The First Amendment Right to Rock https://www.baldaufmasser.com/2017/08/05/the-first-amendment-right-to-rock/ Sat, 05 Aug 2017 21:24:23 +0000 http://www.baldaufmasser.com/?p=25140 As visitors to our Facebook page will be aware, Johnathan and I recently recorded our first radio ads for the firm. They will be airing on 96.9 The Eagle and are also available on Soundcloud here. Each ad closes with a reminder for listeners to exercise their 5th Amendment right to remain silent and their 1st Amendment right […]

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As visitors to our Facebook page will be aware, Johnathan and I recently recorded our first radio ads for the firm. They will be airing on 96.9 The Eagle and are also available on Soundcloud here. Each ad closes with a reminder for listeners to exercise their 5th Amendment right to remain silent and their 1st Amendment right to rock. This raises the question, what exactly is the 1st Amendment right to rock? In writing that line, we were chiefly thinking of a US Supreme Court case, Ward v. Rock Against Racism (RAR), concerning rock concerts in New York City’s Central Park.

In RAR, Justice Kennedy upheld a New York City regulation requiring performers at a Central Park bandshell to utilize sound technicians and amplification equipment chosen by the city. The Court found that this regulation was a permissible time, place and manner regulation because it was narrowly tailored to achieve a significant governmental interest and provided ample alternative channels of communication. But all of this fancy legal phraseology glosses over what Justice Kennedy recognizes at the beginning of his analysis: that rock music, like any expressive conduct, is protected by the 1st Amendment.

Justice Kennedy notes that “music is one of the oldest forms of human expression” and that democracies and dictatorships alike have recognized music’s “capacity to appeal to the intellect and to the emotions, and have censored musical compositions to serve the needs of the state.” Because of this, “Music, as a form of expression and communication, is protected under the First Amendment.” This just makes sense. The 1st Amendment exists chiefly to prohibit just the type of censorship that Justice Kennedy notes has been targeted at music.

From N.W.A to Rage Against the Machine it is undeniable that rock music often carries a political message. As the Supreme Court has recognized many times, political speech is at the core of what the 1st Amendment protects. And what is more political than the forceful use of “fuck” directed at authority figures, memorably expressed here and here. However, as RAR makes clear, the 1st Amendment right to rock is not unlimited. Reasonable time, place and manner restrictions will likely be upheld, meaning that a noise ordinance violation isn’t going to be struck down on a 1st Amendment basis. You have a 5th Amendment right to be quiet and a 1st Amendment right to get loud but the latter is bounded by your neighbor’s right to sleep in peace. Defending and exercising your constitutional rights is as patriotic as defending those rights on a battlefield. In the words of AC/DC, “for those about to rock, we salute you.”

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What to do During an Arrest https://www.baldaufmasser.com/2017/08/03/what-to-do-during-an-arrest/ Thu, 03 Aug 2017 00:24:10 +0000 http://www.baldaufmasser.com/?p=25138 How to secure your rights and your safety when you are being arrested.

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Being arrested is a terrifying experience, especially if you don’t know what to expect. While every situation is unique, if you follow the guidelines below, you have a better chance of coming out of the arrest without surrendering any of your legal rights and (more importantly) will be as safe as possible. You must know what your rights are in order to exercise them and our goal is to help you develop that knowledge. You will not win an argument with a cop on the street. You have done your part if you have created a record that benefits you and if you have not given the police more evidence to  use to convict you. The time to argue is in a courtroom.

Even if you have not committed a crime, you should understand that innocent people do confess to crimes they did not commit. There is no reason for you to expose yourself to criminal charges. Let law enforcement do their jobs, don’t do it for them.

As always, the information we provide in our blog is not legal advice. If you have a specific concern, please contact us directly. Note also that this post will only handle street encounters. Vehicle stops, how to handle law enforcement when you are in your home, and many other situations will be discussed in later posts.

If you anticipate that you will be charged or arrested in the future, contact an attorney to review your rights and discuss the situation. If you are proactive, you can protect yourself against many issues that others will run into. You can make a plan, think about the best way to respond, and have someone ready to go to bat for you when and if you are arrested.

Understand as well that some (not all) officers will see you exercising your rights as a threat and as you questioning their authority. When you exercise your rights, you do take on the risk that you will escalate the situation even if you do everything exactly as you should. It is more stressful in the short-term to exercise your constitutional rights. In our opinion, every citizen is obligated to understand and exercise their rights unless they have a good reason for not doing so. That being said, this is not an easy burden to bear.

Two pieces of information are important before we begin to walk through a hypothetical encounter. First, when we talk about de-escalation, be aware that officers will “step up” their encounter with you as it evolves. The easiest way to think about this is No Contact -> Voluntary Contact -> Detention -> Arrest. These steps are important, as you have different rights and responsibilities at each step.

So, let’s assume you’re walking near Capitol Park in Boise minding your own business. It’s a cool fall morning, so you’re wearing a black jacket and jeans. In this scenario, you are not carrying anything illegal. Nor are you carrying any weapons, as you left your trusty pocketknife at home. A Boise Police officer approaches you and says, “You, in the black jacket. Stop!”[i]

  1. Once law enforcement has made contact with you, your goal is to deescalate the situation. You do this by remaining calm, keeping your hands visible, and making sure the officer does not see you as a threat. Sudden movements, yelling, mumbling, looking around nervously, looking the officer directly in the eyes for too long, appearing intoxicated, and a whole list of other actions or attributes could make you appear to be a threat in the officer’s eyes. Be calm, be cool, be collected.
  2. At this point, you have two options.
    1. If you want to speak to the officer (maybe you saw a crime and he’s stopping you to ask you what you saw), go ahead and do so.
    2. Your other option is to determine if you are free to go. Let’s say that once he saw your face, the officer realized that they were looking for another person in a black jacket, not you and may decide against detaining you. They may begin to ask you questions that you’re not interested in answering. If you’re not sure if you want to answer, don’t answer. Too many people talk themselves into trouble because they are trying to be polite. To determine if you are free to go (and are therefore not being detained), simply ask, “Am I free to go. If you are, calmly walk away.
  3. Assuming you are detained, it is probably a good idea to tell the officer, “I am going to remain silent, I want to speak to my attorney, and I do not consent to a search.” Speak clearly and loudly, but be polite and don’t yell.
    1. Ingrain that language into your soul. Both pieces are important and you’re going to have to get them out under pressure.
    2. If you do not invoke your right to an attorney after invoking your right to remain silent, you are leaving yourself open to “reapproach,” meaning that they can come back and ask you questions after a reasonable time has passed.
    3. Many states require you to identify yourself if you are being detained or arrested. Even if a state does not require you to do so, you may want to identify yourself if it will do you no harm.
    4. We will talk about Terry stops later, but know that if you are detained, the officer may pat you down to ensure you have no weapons on you.
  4. At this point, the officer will decide if you are now free to go or if they want to arrest you. Either way, you need to continue exercising your rights. What does that mean? Stay quiet. Most officers will let you be once you
  5. If you are arrested, continue to remain silent regarding the facts of your case.

During this entire time, you should also:

  • Never lie (this can lead to other charges);
  • Stay calm; and
  • Comply with orders (as opposed to questions).

When you speak to your attorney, take the time to explain the arrest with them. Until then, remember the details.

______________________

[i] This verbiage is probably an order, which you should abide by. Officers often ask questions in tones that may seem to you to be an order. If you comply, they can later argue that you consented to whatever action you thought you were ordered to take. You are not obligated to comply with a question. If you are not sure if the officer is giving you an order or asking you to do something you are not obligated to do, politely ask the officer if they are ordering you to take the action. If they are, you must comply, even if the action violates your rights.

 

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Negotiating in Good Faith https://www.baldaufmasser.com/2017/07/31/negotiating-in-good-faith/ Mon, 31 Jul 2017 22:08:30 +0000 http://www.baldaufmasser.com/?p=25134 Negotiation plays a prominent role in our adversarial legal system. Litigating through the court system can be notoriously slow and expensive, so parties to a dispute have a strong incentive to work things out amongst themselves. Before a case gets to the point of mediation or arbitration, the parties can and must negotiate. With this […]

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Negotiation plays a prominent role in our adversarial legal system. Litigating through the court system can be notoriously slow and expensive, so parties to a dispute have a strong incentive to work things out amongst themselves. Before a case gets to the point of mediation or arbitration, the parties can and must negotiate. With this blog post I want to talk about how negotiation should function.

One of the biggest impediments to successful negotiation is the jealous way in which parties guard information. In other words, like in any philosophical discussion, negotiation functions best when each side starts with a robust and shared set of facts. In the law, this is chiefly accomplished through a process known as discovery. In discovery, whether in a criminal case or a family law case, each side asks the other to disclose all pertinent information about the case at hand which is in the other party’s possession. Once this exchange has occurred, each party should be able to construct logical arguments from the same basic premises. And if the lawyers for each party have perfectly functioning “logic machines” (i.e. brains), then they should be able to anticipate the conclusion(s) necessitated by the application of the law to the shared set of facts. In short, hiding the ball gets you nowhere and just makes the legal case slower and more expensive for the parties involved. Recognizing this can be hard on attorneys raised on “Perry Mason moments” who fantasize about surprising opposing counsel at trial.

Another part of negotiation that may feel counter-intuitive to attorneys born and raised in an adversarial system is the importance of remaining reasonable about the goals of a legal dispute. Given that our legal system requires at least two opposing sides with (at least ostensibly) adverse interests, the temptation is to define success as complete and total victory for our side and a corresponding global loss by our opponent. But such partisanship does a disservice to a lawyer’s client. First, total victory is a rare occurrence, whether the battlefield is a literal battlefield or a courtroom. So promising total victory is often hubris at best and an outright lie at worst. Furthermore, creating such unreasonable expectations just lays the groundwork for disappointment down the road. Conversely, starting the legal process with a considered understanding of the likely outcomes allows clients and lawyers alike to remain cooly rational as the case progresses. A corollary to remaining reasonable about one’s goals is remembering that the legal system exists to further the pursuit of justice rather than to allow the strong to impose their will on the weak.

Finally, for negotiation (or litigation) to function properly each side needs to be adequately represented. In other words, our adversarial system assumes a battle of equals. To that end, it is immoral and unethical to engage in battle with an over-matched opponent. For example, it would be wrong for a prosecutor to pursue an innocent man simply because the prosecutor thought that she could win the case. If the justice system was working appropriately, it would be irrelevant whether the prosecutor did her damnedest or not, the innocent would go free and the guilty would be convicted. But given resource limitations, court cases don’t always meet the ideal of a battle of equals. Attorneys should recognize this and not seek to abuse an opposing party simply because that party’s attorney isn’t up to snuff.

In short, negotiation in a legal case represents an opportunity for the parties to efficiently achieve a fair and just result. But this can only occur if the parties respect the premises underlying good faith negotiation. The very phrase “negotiating in good faith” captures the idea that negotiation is only effective if the parties engaged in the negotiation believe that the process will conclude with a result with which they can live. Negotiating in bad faith is just a waste of time. Negotiation as it should be done offers parties to a legal dispute a way to achieve a cost-effective and fair result. Furthermore, negotiated resolutions can generally be more creative than a judge would be willing to be otherwise. Keep all of this in mind when considering whether or not to pursue a negotiated resolution in your case.

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What is Community Property? https://www.baldaufmasser.com/2017/07/22/what-is-community-property/ Sat, 22 Jul 2017 17:21:19 +0000 http://www.baldaufmasser.com/?p=25085 Getting divorced is difficult. No matter the circumstances, the dissolution of a marriage is a trying time for all of those involved. In order for everyone to move on, a clean break is ideal. In a divorce that doesn’t include children, the distribution of property is often the most contentious area of dispute. Once the […]

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Getting divorced is difficult. No matter the circumstances, the dissolution of a marriage is a trying time for all of those involved. In order for everyone to move on, a clean break is ideal. In a divorce that doesn’t include children, the distribution of property is often the most contentious area of dispute. Once the marital property is categorized into community and separate property, the distribution of separate property is pretty simple: each party gets what is theirs. On the other hand, the distribution of community property can become extremely complicated.

As with many issues in the law, we start with the statute. Community property is defined by Idaho Code § 32-906. Quite simply, “All other property acquired after marriage by either husband or wife is community property.” The same is true with income derived from community property, unless there was a specific agreement between the spouses that it would be separate property. As the “all other” language suggests, this statute needs to be read in conjunction with Idaho Code § 32-903, which defines separate property. This definition is a little more complicated, so I will quote it in full:

“All property of either the husband or the wife owned by him or her before marriage, and that acquired afterward by either by gift, bequest, devise or descent, or that which either he or she shall acquire with the proceeds of his or her separate property, by way of moneys or other property, shall remain his or her sole and separate property.”

In short, if you had it before you got married, it’s likely your separate property. If you and your spouse acquired it after getting married, it’s likely community property. If a piece of property is community property, it will likely have to be divided equally between the spouses. The best way to determine whether a specific piece of property is community or separate property is to consult with an attorney. Johnathan or I would be happy to sit down with you to discuss the specifics of your case and how we may be able to assist you.

Stay strong.

Andrew

 

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