Skateboarder at crosswalk tagged for contrib

Skateboarder at crosswalk tagged for contrib:

A skateboarder who watched a vehicle heading toward a crosswalk but kept on skating could not recover for his arm and wrist injuries because of his contributory negligence.

On Feb. 17, the Supreme Court of Virginia upheld a Norfolk Circuit Court’s decision striking the skater’s personal injury claim because he continued across a crosswalk as a vehicle was turning into the crosswalk from a cross-street.

Viewing the case from the plaintiff’s perspective, the evidence showed the skater watched the driver’s car the “entire time” as he rode his skateboard through the crosswalk. Even though he did not see the driver apply her brakes or slow down, Tyler Slawson “made no attempt to avoid a collision by stopping,” because he thought the driver would stop before reaching the crosswalk, the Supreme Court said in Slawson v. Gough, No. 110169.

Justices S. Bernard Goodwyn and LeRoy F. Millette Jr. dissented from the decision for the defendant in Slawson.

In a second unpublished order released on Feb. 17, a defendant who said he was prejudiced at sentencing by the prosecutor’s notebook full of letters and emails lost his appeal.

The notebook contained letters written by the victim’s family members, as well as friends and acquaintances of defendant Herbert Price’s family.

But the high court dismissed Price’s appeal because of how he framed his assignment of error. In the trial court, Price objected that the letters and emails were not proper “victim impact testimony.”

As the communications were not “testimony” governed by Va. Code § 19.2-295.3, Price should have described the letters and emails as “victim impact evidence,” the high court said in its three-page unpublished order in Price v. Commonwealth, No. 111135.

The Price decision is another variation on an important theme in appellate practice: Be clear and consistent in articulating the precise challenge you are making to a trial court ruling.

CA4: A protective weapons search under Michigan v. Long is an exception to Gant

CA4: A protective weapons search under Michigan v. Long is an exception to Gant:

Defendant’s stop for a taillight being out was cause for the stop, defendant’s inability answer basic questions about what he was doing and where he was going in a high crime area, his criminal record, and his generally matching the description of a robber became reasonable suspicion. A protective weapons search under Michigan v. Long is an exception to Gant. United States v. Lewis, 2012 U.S. App. LEXIS 3241 (4th Cir. February 16, 2012) (unpublished)*:

[T]the officer reasonably believed that Lewis could be armed and dangerous. Moreover, Lewis' lack of restraint and close proximity to the driver's side door permit the conclusion that Lewis could access any weapons within the vehicle. See Long, 463 U.S. at 1051-52; United States v. Elston, 479 F.3d 314, 320 (4th Cir. 2007).

... [T]he limited restraint placed on Lewis prior to the search did not amount to a formal arrest that would trigger Gant's protection.

Special Court to Probe Claims Texas Judge Concealed Evidence as Murder Prosecutor 25 Years Ago

Special Court to Probe Claims Texas Judge Concealed Evidence as Murder Prosecutor 25 Years Ago: Following a probable cause finding concerning accusations that Williamson County Judge Ken Anderson concealed evidence from the defense while serving as a lead prosecutor in a murder trial 25 years ago, the chief justice of the Texas Supreme Court today ordered that a court of inquiry be held. Judge Louis Sturns of Fort Worth was appointed to oversee the highly unusual case, reports the Dallas Morning News. Sturns is expected to appoint a special prosecutor to pursue the case against Anderson, who was Williamson County's district attorney at the time of the trial, reports the Associated Press. No timetable has…

Police Better Off Accidentally Shooting Black People Than Family Dogs

Police Better Off Accidentally Shooting Black People Than Family Dogs:

You'll get in less trouble if you accidently shoot the one on the right.

I’m about to tell you a story. If the story included Chicago PD shooting an innocent black man who posed no threat to them, the story would end in an acquittal, vindication for the officers, and an outraged black community starting a charity fund for his widow.

But this story involves CPD shoot an innocent black Labrador Retriever. A family pet who posed no real threat to the officers. As such, the police have been punished and roundly excoriated, and a federal jury awarded the family a huge sum for damages.

Which is fine. I mean, I agree with the jury’s decision. I just don’t like living in a world where shooting my dog is a bigger liability risk for a police officer than shooting me….

The Chicago Tribune has the story (gavel bang: Huffington Post):

Teenage brothers Thomas and Darren Russell were in their second-floor apartment in the 9200 block of South Justine Street in February 2009 when officers announced they had a warrant to search both units of the two-flat. Thomas Russell, then 18, opened the door and found officers with their guns drawn, according to the lawsuit. Russell said that he put his hands in the air and asked permission to lock up his 9-year-old black Labrador, Lady, before they entered.

Police refused the request and came into the house, the lawsuit said. When Lady came loping around the corner with her tail wagging, Officer Richard Antonsen shot the dog, according to the suit, which alleged excessive force, false arrest and illegal seizure for taking the dog’s life.

A jury awarded the family $333,000 for their loss.

How does this play out if instead the story is: “When LeBrandon, a 5’10” dark-skinned black man wearing a wife-beater, came loping around the corner running his mouth, Officer I Am The Law put him down with two shots to the chest.”

Because the police say the same thing about innocent black people they shoot as they did in this case about the black lab:

Jennifer Hoyle, a spokeswoman for the city’s Law Department, said: “The officers involved in this case were executing a valid search warrant when this incident occurred and were simply protecting themselves. We are extremely disappointed and reviewing all of our options. In particular, we think the damages awarded to the plaintiffs were excessive.”

The difference is that nobody believes that the police need to respond with deadly force to protect themselves from random dogs, but lots of people think the police need to respond with deadly force to protect themselves from random unarmed black men. It’s BS.

But it is what it is. Do not mess with dogs. Our society loves dogs. Keep your guns pointed in the direction of less sympathetic targets.

Family gets $333,000 for 2009 raid in which cops killed dog [Chicago Tribune]
Police Kill Chicago Man’s Dog During Raid, Jury Awards Family $330,000 [Huffington Post]

Search Warrants For Future Criminal Activity

Yes, you understood that correctly. Cops can get a warrant to search, for example, your home for criminal activity that hasn't yet occurred. This insidious device is known as an "anticipatory search warrant."
Begin with the foundation: The Fourth Amendment to the United States Constitution prohibits "unreasonable searches and seizures," and provides that "no Warrants shall issue, but upon probable cause." This language is clear.
An anticipatory search warrant is a warrant based on a showing of probable cause that particular evidence of a crime will exist at a specific location in the future. In U.S. v. Grubbs, decided in March 2006, defines an anticipatory search warrant “a warrant based upon an affidavit showing probable cause that at some future time, but not presently, certain evidence of crime will be located at a specific place.” The Supreme Court had no problem with using anticipatory search warrants.
With a typical search warrant, officers requesting the search must establish probable cause that what they want to look for is presently in the place they want to look for it. If the government wants to get into your house, it needs to show probable cause the drugs are in the house. It doesn't have to be certain the drugs are there, but it must at least make a showing that they reasonably believe the illegal substance is there. In contrast, an anticipatory warrant doesn’t claim the evidence is in a particular place at the time the warrant is requested. Instead, that kind of a warrant anticipates a certain event will occur and if that event happens, then there is going to be probable cause.
Using U.S. v. Grubbs as an example, Mr. Grubbs ordered a child pornographic video tape from an internet site. Unfortunately for Mr. Grubbs, the site was being operated by the U.S. Postal Service. Agents intended to deliver the tape Mr. Grubbs ordered, but that delivery had not yet been made. The agents wanted to search Grubbs’ house after delivery of the tape to prove that he was in possession of it. The government wanted to get the warrant before the delivery so once the delivery was made, the agents could immediately conduct a search for the tape inside the house. In that affidavit they told the magistrate what they knew and they requested to execute a warrant to search for the tape if a triggering event occurred. The exact language that was in the warrant: “Execution of this search warrant will not occur unless and until the parcel has been received by a person and has been physically taken into the residence. At that time, and not before, this search warrant will be executed.” Delivery of the parcel and acceptance of the parcel was the triggering event. If the triggering event doesn’t occur,the warrant can’t be executed.
What's to stop the government from fabricating an event, placing any person in possession of an illegal item or substance, then executing upon a warrant for the mere purpose of getting into your house?

Sealing An Arrest Record

There are many reasons you would want to expunge your arrest record. Expungements are available ONLY to those people who have not been convicted of the charged crime. If you have been convicted, you cannot seal your record. Most people want to seal their record because the arrest, or arrests, are getting in the way of a good job. Some are embarrassed about an arrest that can be easily found on the internet. Others simply want to get rid of a charge that never should have happened in the first place.
Expunging an arrest record begins when you make your first appearance in court for the charge. You cannot plead guilty or you will not be eligible for an expungement. If you plead no contest, or nolo contendre, you will not be eligible.
Two special circumstances exist with misdemeanor crimes of domestic violence and with marijuana possession. Even though you may ultimately have the charges dismissed, most courts require you to plead guilty or no contest. This makes you ineligible for an expungement.

Restoration of Firearms Rights

Upon conviction of a felony, any felony, violent felony or not, you no longer have the right to possess a gun. You may be arrested if you attempt to purchase a gun after you have been convicted of a felony. If you are found in possession of a gun, you face an additional felony charge. This prohibition applies not only to guns, but to ammunition for any firearm.
This rule applies to any person who was adjudicated delinquent as a juvenile 14 years of age or older at the time of the offense of murder in violation of § 18.2-31 or 18.2-32, kidnapping in violation of § 18.2-47, robbery by the threat or presentation of firearms in violation of § 18.2-58, or rape in violation of § 18.2-61.
Any person under the age of 29, who was adjudicated delinquent as a juvenile 14 years of age or older, of a felony other than those specific felonies mentioned above, cannot possess or transport any firearm or ammunition for a firearm.
Any person who violates this section shall be guilty of a Class 6 felony, punishable by up to five years in prison.
Repeat offenders will face a harsher sentence with a mandatory minimum term of imprisonment.

Exceptions to this rule include possession of a firearm, ammunition for a firearm, explosive material or other weapon while carrying out his duties as a member of the Armed Forces of the United States or of the National Guard of Virginia or of any other state, any law-enforcement officer in the performance of his duties (a convicted felon as a law enforcement officer?), or any person who has been pardoned or whose political disabilities have been removed pursuant to Article V, Section 12 of the Constitution of Virginia provided the Governor, in the document granting the pardon or removing the person's political disabilities, may expressly place conditions upon the reinstatement of the person's right to ship, transport, possess or receive firearms.

How do you get your right to possess, transport or carry a firearm back? A petition filed in the circuit court of the jurisdiction in which you reside. Before you petition the court of an order allowing possession of a gun, you must first have your civil rights restored by the Governor.

Information to have your civil rights restored can be found at the site maintained by the Secretary of the Commonwealth. http://www.commonwealth.virginia.gov/JudicialSystem/Clemency/restoration.cfm

Is the DOJ Too Easy on Prosecutors That Mess Up?

Is the DOJ Too Easy on Prosecutors That Mess Up?: "The USA Today on Friday continues its series, called Justice in the Balance, about federal prosecutors behaving badly.

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Drug Forfeitures

Forfeiture is the government seizure of property connected to illegal activity. Forfeitures are utilized by the federal and state law enforcement in the ongoing "war on drugs."
Law enforcement has asserted that it is a necessary and effective deterrent to drug crime, while opponents argue that existing procedural safeguards result in too many innocent parties having their property taken away, with little or no recourse for recovery. If your property or assets have been the subject of a criminal or civil forfeiture, it is important to consult with legal counsel to understand your rights and options.

Property Subject to Forfeiture
Government authority to seize property connected to illegal activity comes from federal statutes, as limited by those laws and the Constitution. Authorizing provisions of state and local statutes tend to be similar to federal law. The United States Supreme Court, in Bennis v. Michigan identified certain categories of property subject to forfeiture:

Contraband - property for which ownership itself is a crime (e.g. illegal drugs, smuggled goods)

Proceeds from illegal activity - property that results from, or can be traced back to, illegal activity

Tools or instrumentalities used in commission of crime - property used to commit a crime (e.g. cars, boats, real estate)

Two Forms of Forfeiture: Criminal and Civil
Criminal forfeiture is punitive. The government seizes a convicted person's property as a part of the sentence. Because it is a criminal proceeding, a defendant is afforded various Constitutional protections. The government only needs to show by a preponderance of the evidence that the defendant obtained the property around the time of the crime and that it was unlikely it came from any other source. The burden then shifts to the defendant to prove this is not the case.
By contrast, civil forfeiture actions proceed against the property itself, which is the defendant in the case rather than the owner. A criminal charge or conviction is not necessary before the government can seize.

Forfeiture proceeds fund law enforcement activity. Because of law enforcement's strong financial incentive to use civil instead of criminal forfeiture, critics claim that the practice has moved from being a means to fighting drug-related crime, to being an end in itself.

If your property has been seized by the government, contact an attorney immediately. You have strict time constraints to respond to the suit to confiscate your property. Failing to respond to the suit can result in a default judgment being entered against you. You may be able to post a bond to get your car, boat, motorcycle, etc. from the government while the proceeding is pending. You may also be able to serve some discovery on the government to make them explain certain facts it intends to introduce at your forfeiture hearing.

Drug Possession and Going to College

Students who make the mistakes of underage drinking, drinking too much, or are found in possession of illegal drugs, such as marijuana, risk being expelled. It isn't necessary that charges are brought or that a student is convicted. It's enough for a dean of the school to decide that the student has misbehaved to invoke the right to expel.

If you are arrested, however, the costs of a mistake are high. Drug crimes put a student's federal student aid at risk.

Many times, a student arrested for possession of an illegal substance or underage possession can be resolved without a finding of guilt if the student qualifies for first offender status under Virginia law.