Law Blog

We often hear that victims of violent crime are more likely to know their attackers than to be the victim of a random act of violence. LegalMatch case data, covering intake reports from all 50 states over the past 12 months, appears to bear this out.

According to our case data, the most common responses prospective clients gave when asked about the identity of their attacker was “someone I know” or “a family member”.

This runs contrary to the image that many members of the public have with respect to violent crime; a crazed stranger jumps out of the bushes, assaults their victim, and runs off. While random acts of violence certainly occur, they are comparatively rare, and it seems that many people spend a disproportionate amount of time worrying about them, given how unlikely they are to occur to a given person.

This is not to say that people shouldn’t take common-sense precautions to reduce the risk of violent crime committed by strangers. These include minimizing time spent alone, outside, at night. Other measures, such as traveling in groups, and sticking to well-lit areas, are also advisable. It might also be helpful, if you are comfortable doing so, to carry some kind of non-lethal defensive weapon, such as pepper spray (but be sure to check your local laws on this).

However, what might be overlooked are conditions that could lead to the more likely scenario: violent crime committed by acquaintances or family members of the victim. The ways to minimize these risks are not nearly as simple as the ones discussed above.

There aren’t many clear-cut ways to avoid violent crime by acquaintances, unless you want to become a hermit. Since that isn’t an option for most people, the situation is complicated.

Not being in a position to give relationship advice, this should be taken with a grain of salt, but it seems that things such as relationship counseling and getting out of abusive relationships (easier said than done) would be helpful in reducing such incidents. Eliminating violent crime altogether is not possible, but any reduction is a good thing.

As the end of October nears, children everywhere are wetting their pants in anticipation for the one time of year where wearing a Spider-man costume and asking for candy won’t land you in jail.  Ahhh Halloween, how we love thee.  It’s everyone’s favorite holiday, unless its hot sister Christmas is around, in which case take a message and tell it we’re washing our hair.  Halloween is great.  It’s a time for pumpkin-carving, trick-or-treating (as long as you don’t live in New Orleans), and of course, pranks.

Sometimes a well-laid prank can be even better than all that candy.  Who doesn’t love leaving a flaming bag of dog poop in front of your cranky neighbor’s doorstep or covering said neighbor’s house in toilet paper?  Not to mention the all-time classic, “bidding on a federal auction for oil and gas leases when you don’t have the money or intention to follow through on it.”

Don’t remember that one?  It was all the rage when I was still in elementary school.  I remember how my friends and I would dress up in a suit and tie, go down to the old Bureau of Land Management, or BLM for all you youngins, and place a phony bid posing as representatives for a kooky billionaire.  Still doesn’t ring a bell, huh?  Oh well, I guess I’m just getting too old to keep up with all these new fangled pranks…

But at least there’s one person who is keeping it alive.  But Tim DeChristopher is doing it for an entirely different reason.  Making a stand for the environment??  Psshtshaw…  Whatever happened to just messing with people because it’s fun?

Seriously though, this is a very serious offense.  DeChristopher is being charged with two felony counts, carrying up to five years in prison plus fines up to $750,000.  The reason he did it was to cause disruption in protesting what he believes are governmental acts that are contributing to the rise of global warming.

But whether you believe in DeChristopher’s cause or not, you’ve gotta admire the legal defense he’s planning to use: a necessity defense.  It’s basically a choice of evil defense, where a person is forced to choose between breaking the law and preventing some evil/harm, or letting that evil/harm happen.  The article does a good job of summarizing DeChristopher’s chances of succeeding with this defense.  Though I think they missed one important aspect: standing.

Usually to employ such a necessity defense, especially against the federal government, a person would have to show that he or she was actually harmed by the actions of the government.  No actual harm usually equals no defense.  I say usually because like every good law school will teach a first-year student, it depends.

I suppose DeChristopher could make some argument that the harm to the environment hurts the planet which in turn harms his life expectancy by increasing the chances of natural disaster or depleting the ozone layer which would lead to increased exposure to harmful UV rays.  But looking at most case precedent, these types of arguments are considered too nebulous and broad to ever succeed.

Good for him for trying though.  The number of lawsuits received by LegalMatch regarding environmental issues, land-use, and toxic torts has increased by approximately 20 percent from last quarter, so it seems like they’re all the rage now.  So maybe Lady Luck will smile in DeChristopher’s favor, though if you ask me, she’s probably terminally ill from skin cancer…

Whatever your thoughts on gun control, news like this gets law geeks and wannabe scholars of constitutional law (such as me) pretty excited.

In short, the Supreme Court has granted certiorari (Fancy Lawyer Talk for “agreed to hear”) to a case which will, one way or another, fill a massive gap in our 2^nd Amendment jurisprudence: whether or not the 2^nd Amendment applies to states, as well as the federal government.

Last year, the Supreme Court, in District of Columbia v. Heller, ruled on the meaning and scope of the 2^nd Amendment for the first time, holding that it protects an individual, rather than collective, right to possess firearms for private, lawful use, including self-defense. However, because a Washington, D.C. law was being challenged, and D.C. is technically governed exclusively by the federal government, the Court only ruled on the 2^nd Amendment as it applied against federal law. This makes sense, because the Court could not have incorporated any 2^nd Amendment rights against the states without first ruling on the meaning and scope of the rights that it provides.

In Heller, the court essentially held that the 2^nd Amendment protects the right of individuals to keep handguns in their homes, for self-defense and other lawful uses. More specifically, Justice Scalia’s majority opinion held that individuals have a right to possess firearms that are “in common use at the time” for lawful purposes, but left open a great deal of wiggle-room for the government to put restrictions on the possession and use of firearms, such as banning guns at sensitive facilities, schools, or banning possession of guns by minors, the mentally ill, or convicted felons.

The upcoming case, known as McDonald v. Chicago, challenges Chicago’s handgun ban, and the ban’s opponents appear to argue that the Heller decision should be applied against state governments, as well.

Originally, the Bill of Rights (the first 10 Amendments to the Constitution, which protect our rights of free speech, freedom of religion, the right to trial by jury, etc.) only applied against the federal government. However, after the passage of the 14^th Amendment, beginning in earnest in the early 20^th century, the Supreme Court began to apply those protections against state governments as well (a process known as “incorporation”), relying on the 14^th Amendment’s Due Process clause as its rationale for doing so.

Considering that the legal meaning of the 2^nd Amendment’s “right to bear arms” was settled a little more than a year ago, after around 150 years of scholarly debate, the pace at which the Court is moving in filling in the centuries-old gaps in the law is quite impressive. Perhaps they feel as if they have some catching up to do? Or, as a more cynical person might argue, perhaps the conservative wing of the Court is simply granting cert to these cases so they can decide them before one of them retires and is replaced by an Obama appointee.

Whatever the result of this case, it is certainly going to ignite a storm of scholarly debate over the meaning of the 2^nd Amendment, and its relevance in modern times.

According to recent LegalMatch case data, the majority of prospective clients who sought an attorney for a criminal case related to gun possession had no prior arrests. While it is impossible to know the exact circumstances of each case from this data, it is possible that many of the crimes which these people are charged with would cease to be illegal if the 2^nd Amendment is incorporated. As for those who have prior convictions, they’re most likely out of luck, given the leeway that the Court has already indicated it is willing to give the federal government, when it comes to keeping guns out of the hands of convicted felons.

Ever get that feeling when you first slip into the driver’s seat of your car that today’s the day you’ll get into an accident?  That despite all those hours you endured being belittled by your driving instructor, aka mom and/or dad, on the importance of safe driving that your spotless driving record, and possibly even life, may all come to an end because someone was trying to catch a green light or was too busy chatting on their phone?  If you have, then you’re not alone.

According to a new study conducted by the Obvious Police, aka the AAA Foundation for Traffic Safety, over a third of drivers feel less safe driving today than they did in 2004.

What’s gotten people so scared?  Apparently, AAA says it’s you — John Smith (it’s not really due to just that one guy, I just like the image of all the John Smiths reading this collectively furrowing their eyebrows in anger).  Specifically, the report cites drivers who text or email while driving as the numero uno factor causing motorists to feel unsafe, and with good reason.

It’s no secret that texting while driving is incredibly dangerous (second news flash, smoking causes cancer).  What’s surprising is that over sixty percent of people do it and nearly a fifth of drivers do it despite knowing the risks.  Coming in second on the list of fears is distracted driving, e.g. people putting on make-up or writing that big presentation while driving, followed by the infamous cell phone-yapping driver.

The odd part is that the current number of driving-related fatalities in America is actually at it’s lowest since 1961 and has been declining since this wonderful recession we’re (still) in hit. Theories abound as to why this is the case.  Most analysts say it’s the bad economy coupled with high gas prices that are keeping people from driving and opting to bus it everywhere instead.  More aggressive traffic ticketing from highway patrol may be another cause keeping drivers off the road.  And ironically enough fear of getting into an accident due to the aforementioned distracted driver may all play a large part in reducing driving deaths and car crashes, as well.

Our own in-house statistics seem to support this newly reported trend, too.  The number of automobile accident cases received by LegalMatch has gradually decreased since 2004.  An interesting side note is that the number of divorce cases LegalMatch has received have slowly increased in close portion.  Maybe the bad economy coupled with that old adage of strength and comfort in numbers has caused couples to carpool and hence want to scratch each other eyes out.  People, there’s something called personal space, you need it.

Despite the seemingly lower chances of getting into a fatal car accident, the fear of texting cell phone-talking drivers is still keeping many once-proud motorists at bay, or more specifically on buses and bicycles.  Ba-da-bump…  I would recommend that you all have nothing to fear, but I’m just as worried as the majority of Americans.  On the bright side, at least my legs will get ripped from biking 12 miles everyday.

With the arrest and recently announced dropped charges against renowned black Harvard professor Henry Louis Gates Jr., the world seems to be once again entrenched in the subject of racial prejudice.  Actually that’s a bit of a stretch.  I seem to recall another semi-important event that may have helped bring the spotlight back on race before this whole Gates debacle.

However, unlike the election of our new black president, the disorderly conduct charge levied by the Cambridge Police Department against the distinguished director of Harvard’s W.E.B. Du Bois Institute for African American Studies probably wouldn’t demonstrate to most people how much our country has evolved since the Civil Rights Movement.  If anything it seems to show how stunted this country can still be in matters of racial tolerance.

The exact details of the case are still subject to debate.  The only fact corroborated by both sides is that Gates was arrested for disorderly conduct outside of his home after Cambridge police responded to a 911 call from a woman stating she saw two black males attempting to break into Gates’ house.  The men were Gates and his driver, and they were attempting to push the front door open because it was stuck in its frame.  Gates eventually got in through the back door when he was confronted by a Cambridge officer.  Gates claims he repeatedly asked for the arresting officer’s name and badge number, and when he followed the officer outside of his home, he was arrested.  The officer claims Gates accused him of racism and refused to calm down after several warnings that his conduct was becoming disorderly.

Well, it’s all moot now because the charge has been dropped.  So we’ll never get to know the juicy details or witness the spectacle of a public trial.

In this humble blogger’s opinion (because I’m sure you’re all waiting with bated breath to hear it), I suspect both sides decided not to pursue the case because it probably would’ve ended up making both parties look pretty bad.  As great as our country’s adversarial court system is, in cases of “he said, she said” it becomes the job of the prosecution and defense to put down the other side.  So in the end, no matter who wins, everyone ends up getting dragged through the mud.

So what’s the point of this post?  Well, aside from giving me yet another chance to hear myself talk, reading this case got me thinking.  Regardless of who was the one actually responsible for escalating the situation, ultimately this case was started because of race and was given the amount of attention it has received because it involved the presumption of wrongdoing due to the race of a prominent scholar.  It really made me wonder, if someone with Gates’ level of achievement can still face such prejudices, how’s the rest of the country faring?  According to the latest statistics from LegalMatch, apparently not so well.

In the last quarter alone, the number of race discrimination cases received by LegalMatch has increased by nearly 50 percent over the previous quarter.  Approximately 30 percent of these cases stem from being fired due to race and over half of them come from employees in the food service and retail industries.  Even more shocking is that the next highest instances of discrimination originate from those employed in the education field.  Stranger still, the statistics regarding gender discrimination almost exactly mirror those regarding race.

It’s a little disconcerting to see these trends.  Perhaps America isn’t exactly the melting pot it’s cracked up to be.  Either that or maybe someone just needs to turn down the burner a little…