Archive for the 'Personal Injury' Category

Brock Turner’s Early Release Renews Mandatory Minimum Sentence Debate

Why do we have mandatory minimum sentences for certain drug offenses but not for crimes like rape? That’s the burning question in everyone’s mind in the wake of Brock Turner’s early release from prison.  I’m not sure anyone hasn’t heard the name Brock Turner. If you’re not familiar with the case though, Turner is the former Stanford student who was convicted for sexually assaulting an unconscious woman behind a dumpster.

Turner gained national attention because of the lenient sentence he received, presumably because of a biased notion that a Stanford athlete shouldn’t be punished as harshly as some every-day Joe. In his now infamous sentence, Judge Persky gave Turner such a light sentence because the judge felt, “A prison sentence would have a severe impact on him.”

Although he faced up to 10 years in prison, Turner was sentenced to only 6 months in jail and was released on good behavior after serving a mere 3 months. Many were appalled at the judge’s sentence but, because judges are given wide discretion when it comes to sentencing in the absence of a mandatory minimum law, he was within the boundaries of the law.

Mandatory Minimums Versus Judicial Discretion

California has since passed a bill, currently awaiting Governor Jerry Brown’s approval, that would institute a three-year mandatory minimum sentence for anyone convicted of penetrating an intoxicated or unconscious person, but that’s only in the wake of the Turner case. It doesn’t solve the issues surrounding other crimes that may warrant a similar minimum. Legislators have, in the past, expressed support for that very same judicial discretion they’re now wanting to take away.

While there’s pros and cons on each side, it’s hard for some to get past the inequities. Is it fair and just that some nonviolent drug offenders are serving more time than a sex offender?  Probably not. Brock Turner

Just to give some perspective, federal law mandates a minimum of a 5-year sentence for a conviction of selling 28 grams of crack cocaine. Here’s some more perspective—28 grams is equivalent to about an ounce.  There’s 16 ounces in a pound.  Certainly, we don’t want those drugs being sold on our streets, but I can’t fathom how that’s worse than rape.

Those against mandatory minimum sentences argue prison overcrowding is a huge problem. In California, for example, the average cost to incarcerate one person for a year is $64,000, which is more than what many Americans make in a year.  Further, opponents argue mandatory requirements lead to unfair and unjust prison sentences, as well as inequities in minimum sentencing compared to sentences that depend on judicial discretion.  The very same argument can be made, however, in favor of mandatory minimums because either option can create sentencing inequity.  This is easy to see in the cases of nonviolent drug offenders who are serving more time than a sexual offender.

While mass overcrowding is certainly an issue that should be addressed, it’s not a strong enough reason to forego mandatory minimums simply because it doesn’t outweigh letting potentially dangerous criminals out on the street. Personal bias, unfairly targeting minority groups, creating coercion, and unjust sentencing seem to be the better arguments from a moral standpoint.

At the same time, mandatory minimums may keep criminals off the street for lengthier periods, but recidivism rates are high and they do nothing to prevent other criminals from taking their place while they’re in jail.

Taking Away Judicial Discretion Only Puts Power into Another’s Hands

An important argument that often gets missed is that taking away a judge’s power to use discretion essentially puts sentencing power in the hands of someone else—the prosecutor, more specifically. It rings true that when mandatory minimum sentences are required, a prosecutor can essentially pick the sentence when they decide which charges to bring against a defendant. Sentencing isn’t a power that should belong in the hands of a partial charging party.  The state represents the people and they can always recommend a sentence, but a judge’s role is to be impartial, fair, unbiased and to ensure the laws are followed.

Then what do you do when the judge is biased and unfair? Some say the judge was most definitely unfair and biased in the Turner case.  Mandatory minimums could help eliminate any personal bias one may have, say, for example, towards a successful athlete from a prestigious school, but there’s pitfalls on both sides.

Again, it’s an ongoing debate that doesn’t seem to have an easy solution. Whether focusing efforts towards crime prevention all together is the answer is left to be decided, but it seems a change must come.

Black Priority Housing: Safe Haven or Return to Separate but Equal?

With most Universities back in session, many college students are settling into their housing, but the months leading up to school may have been riddled with anxiety about student housing.

On-campus housing is offered at most four-year universities. Campus housing is student housing that is owned and controlled by the college campus. It offers several benefits, including an environment where students can meet and befriend one another, on-campus housing (often within walking distance to classes), and may be cheaper than living off-campus.

California State University, Los Angeles (“CSULA”) is the most recent university to offer priority on-campus housing to their African American students. The housing is in response to demands from the campus’ black students who say they experienced insensitive remarks and “macroaggressions” (daily verbal, behavioral, or environmental indignities such as racial slights or insults) from white classmates. University of Connecticut, UC Davis and UC Berkeley already offer similar housing to their black students. Dorm

Proponents of the housing believe students can draw on their common experiences to support one another in black housing. Non-black students are not barred from applying for the housing.

While it is certainly admirable to enact housing regulations in an attempt to make black students feel comfortable on their own campus, the housing can be said to segregate black students. Are CSULA’s good intentions unintentionally contributing to the underlying problem of racism?

History of Segregation

Without going into the details of the horrific way our country treated blacks historically, African Americans have experienced extreme mistreatment, oppression, and inequality based entirely on their race.

In 1896, the pivotal constitutional law case of Plessy v. Ferguson upheld a legal doctrine that would be known as “separate but equal.” Under this doctrine, accommodations for blacks and whites could be separate but were for all intents and purposes supposed to be “equal.” They were not. Blacks had inferior everything – bathrooms, water fountains, schooling, modes of transportation, etc. Things were labeled “blacks” versus “whites” to designate who could use what. It was not a proud time in our history.

It wasn’t until 1954 that the “separate but equal” doctrine was overturned by the Supreme Court case of Brown v. Board of Education. The Court concluded that state laws establishing separate public schools for black and white students was unconstitutional, thereby overturning Plessy v. Ferguson. The case was one of the first acts of the Civil Rights Movement.

We have made great strides since the days of “separate but equal,” going so far as to elect our first African American president in 2008, but we still have a ways to go. Nothing exemplifies the disparity in treatment more than the recent “Black Lives Matter” movement. The movement was created in 2012 in response to Trayvon Martin’s murderer, George Zimmerman, being acquitted for his crime. Since then, numerous African Americans have been killed at the hands of citizen and police who have not been held accountable for their actions.

Will the Housing Stay?

Given the historical context and how many years it took to achieve desegregation, does the CSULA housing revert back to the days of segregation?

Probably not. Themed housing or student communities focusing on cultural identity is not new to college campuses. On-campus housing is offered to students based on their gender. Further, some colleges have “Common Interest Communities,” which provide students the opportunity to live in a space around a common interest, such as a social group, specific major or charity. None of these on-campus housing initiatives have been deemed inappropriate or criticized as a way to foster a culture of segregation within the school.

It is also important to note that CSULA is not the first campus to create black housing for its black students. The housing does not discriminate against peers who are not black, but wish to live in the designated housing. Finally, the housing was a direct result of requests from CSULA’s black students, who felt that some of their white counterparts were acting aggressively toward them.

And we mustn’t forget the case of the freshman African American student, Donald Williams Jr., who was assigned a dormitory suite with seven other suitemates at San Jose State in California. Williams was targeted in a number of hijinks as the only black student in the suite, including his roommates sneaking up behind him to place a U-shaped bike lock around his neck, hanging a Confederate flag in the common room, writing racial slurs on the dry-erase board in the common room, and calling him names such as “three-fifths” and “fraction.” Three of the white roommates were found guilty of a misdemeanor against Williams for bullying, but not for a hate crime.

If CSULA’s housing can prevent bullying or the commission of a hate crime, then they should be welcome at all college campuses.

Melania Trump Sues For Defamation Over Alleged Prostitution

After embarrassing herself by giving a speech that plagiarized Michelle Obama’s speech, Melania Trump has found herself involved in another First Amendment matter. Only this time, Mrs. Trump is the complainant, rather than the perpetrator. Melania Trump is currently pursuing a defamation lawsuit against both a blogger based in Maryland and a British newspaper for claiming that she was a prostitute in the 1990s and has recently suffered a mental breakdown partially because of a risk of exposure of said alleged career.

Webster Tarpley, a political blogger based out of Maryland, wrote in a blog post on August 2 that Melania Trump was on the verge of a nervous breakdown in part due to a risk of exposing her alleged career as a high-end escort. Two weeks after Mr. Tarpley’s blog post was published, the Daily Mail, a British newspaper known for publishing salacious celebrity gossip alongside actual news, also ran an article about Melania Trump.

The article alluded to Mrs. Trump working as a prostitute instead of strictly as a model during the ‘90s, as her modeling agency supposedly was a front for a call-girl agency. The Daily Mail cited a Slovenian magazine and an unauthorized biographer as its credible sources. When a number of news outlets began picking up and running both the blog post and the article, Mrs. Trump filed a libel lawsuit against both the Daily Mail and Mr. Tarpley.

Liable for Libel?

In order to be successful in her lawsuit, Melania Trump will need to prove the different elements, or parts, of a libel case.

First, Mrs. Trump must prove that the statements made about her career and mental health are false. This can be easily proven by providing evidence to the contrary, such as doctors’ reports about Melania’s mental state, copies of her resume to illustrate the work she actually did during the 1990s, and testimony provided by witnesses who knew Mrs. Trump during the time that she is accused of having been a prostitute or period during which she is said to have had a mental breakdown. Melania Trump

Second, Melania will need to prove that the statements were actually published to a third party. The “to a third party” portion of the element simply means that the publication must be done with the intent of sharing a libelous statement with a person other than the subject of the statement and the party making the statement. This is the easiest element to prove for Mrs. Trump, as she can simply show that Webster Tarpley’s blog post and the Daily Mail’s article were both made available to the general public with the intent of having a number of different people read the post and the article.

Third, Mrs. Trump will need to prove that the Daily Mail and Mr. Tarpley acted with actual malice when making the statements about her current state of mental health and her past employment. Mrs. Trump is required to prove actual malice because, as the wife of the Republican candidate running for president and a model, she is a public figure.

In order to prove actual malice in a libel case, one must show that the defendant published the statement while either knowing that the statement was not true or without caring at all as to whether it was false or not. While it may be easy for Melania Trump to show that Mr. Tarpley acted with malice, as the blogger only vaguely references Twitter posts and a comment allegedly made by the rapper 50 Cent as the evidence upon which he has chosen to base his assertions of Mrs. Trump’s prostitute past and recent mental breakdown.

The Daily Mail, on the other hand, relied upon both an unauthorized biographer and a Slovenian magazine as its sources. One would assume that a biographer, even an unauthorized one, would likely have done substantial research on their chosen subject, including possibly digging up some unsavory details about the subject’s past. Also, the magazine is based out of Mrs. Trump’s home country, meaning that it probably has access to sources and information that Mrs. Trump may not have considered. Thus, the Daily Mail, especially as it is an internationally-known publication, likely did engage in some effort to determine the veracity of the allegations it made with regard to Melania Trump working as an escort prior to marrying Donald Trump.

Any claims that the publication was unable to verify were labeled as unsubstantiated and all claims were assigned to their respective sources without the Daily Mail overtly asserting that all of these claims are absolutely true in an apparent attempt to avoid committing libel. Since it appears that the Daily Mail did make an effort to avoid posting anything that it knew was a lie, Melania Trump may not be able to successfully prove that the Daily Mail engaged in actual malice. However, it will be up to the judge in charge of trying the case to determine if the Daily Mail’s efforts were enough to avoid committing actual malice.

Fourth, Melania Trump needs to prove that the publication of Mr. Tarpley’s blog and the Daily Mail’s publication caused her to suffer actual damage. It is not always enough to simply state that one is hurt by false statements if it cannot be inferred as to how these statements could have harmed the person.

Indeed, what with the different scandalous items about Melania Trump that have come to light recently, it may not be entirely clear as to just how these statements have seriously harmed her in a manner that would have not happened if these statements had never been made. Thus, it is not surprising that Mrs. Trump’s lawyers have already alluded to the statements affecting Melania’s efforts to license her name and likeness in the complaint as a way to show that she is harmed by the publication of the statements. However, Melania may need to go a step further to provide actual examples of licensing attempts that have been negatively impacted by the statements.

Any case involving defamation is difficult and complicated, as proven by Melania Trump’s attempt to bring one of her own. This type of case often requires the assistance of a lawyer who knows how to protect a client’s public image while not being seen as trying to stifle free speech. If you feel that, like Mrs. Trump, you have recently been harmed by a false statement or other form of defamation and are interested in protecting your reputation or receiving financial compensation for that harm, contact a personal injury attorney right away.

Firefighters Denied Workers Compensation

Dozens of injured San Jose firefighters have been denied workers compensation claims. Over the past several months, firefighters in the San Jose area who have been injured on duty have been denied workers compensation. These firefighters complain that they are not given the proper treatment and care that they deserve.

Workers Comp

Workers compensation is an essential component of the work force dynamic. It acts as a safety net for workers who are hurt on the job. Without such a system in place,  millions of workers will be left to support themselves and pay for their own insurance plans. Workers compensation acts as a substitute for insurance coverage. It is a form of insurance that compensates workers that are hurt on the job.

Under the California Labor Code, employers must purchase workers compensation on behalf of their employees.  Similarly, public agencies such as the Fire Department and the Police Department must provide workers comp for their employees. However, public employees are sometimes treated as contractors rather than actual employees. As a result, these public employees are denied workers compensation when they need it. Firefighter

Generally, workers compensation is an agreement between the employer and employee. The employer will provide for injuries and other related costs but, the employee will not have the right to sue the employer for negligence. This seems like a fair tradeoff. However, if the employer is mandated to provide workers comp and they do not, then they can be in legal trouble.  The deprived employee can seek damages through a civil court beyond the compensation that the employee was originally entitled to.

Moreover, the employee can go through their respective state fund to recover damages.  As mentioned before, a lawsuit cannot be commenced against the employer for grounds of negligence. The exceptions are if workers comp was not provided or if it is on discrimination grounds.

A Flawed System

The City of San Jose has wronged the San Jose Firefighters through Athens Administrators. The city contracted out its workers comp disbursement system to Athens Administrators, which has not provided for these brave firefighters in a number of instances. This is no good. These people are constantly putting their life on the line and the least the city could do is repay the favor. Some of the issues with the workers comp systems in place are logistical and not a question of outwards denial of the individual.

Logistically, it is sometimes difficult to keep track of every incoming claim. As a result, these claims are left out of the system and not tended to. The automated databases that collect and input the claims have flawed mechanisms that don’t always keep track of every incoming claim, resulting in unattended claims.

Additionally, Athens  has outright denied workers comp to firefighters because they didn’t feel the harm or injury was extreme enough. As one staff member put it, the “treatment was not medically necessary.” That’s not the point. Under workers comp, regardless of severity of injury, treatment should be given. It is absurd to think that a firefighter who has come in with bruises is denied because it does not come off as severe enough. Someone does not have to end up in the emergency room before assistance is given.

There need to be ground rules as to what is covered and what isn’t. Furthermore, the system needs to keep better track of each claim. As a number of firefighters have complained, the system neglects to even look at certain claims. Under state and federal law, workers comp is a right that belongs to workers. If this right is not upheld, then all is for naught. At the end of the day, the system is dictated by rule of law. If these laws are broken, then there have to be measures in place that will trigger a reaction that will ensure that the system is abided by.

Wearable Technology a Violation of Employee Privacy?

Performance-monitoring devices are become more prevalent in the workforce. These devices keep track of the day-to-day activities of employees in order to better gauge work performance. An ongoing concern is whether basic civil rights, in particular, right to privacy, are being violated through the use of these devices. These devices can be found everywhere. Even the police department has made use of body cameras to keep track of their police officers. How far can employers go in enforcing these devices?

The Good, The Bad, and The Ugly

There are many reasons why an employer would want to make use of such performance-monitoring devices. The first basic reason is that the employer will be able to manage the work efficacy of the employees. No matter what line of work they are in, the employer will be able to keep track of the individual’s work performance every step of the way. This is good and bad.

For one, the employee might feel uncomfortable knowing that their higher-ups will be able to monitor everything they do within that window of time. One other aspect to this that is often overlooked is that the employer may have a preconceived bias towards a certain employee (for whatever reason—race, gender, or even personal relationship with employer) that will cause employer to give more attention to that individual over other such employees. This is unfair because they will be unduly scrutinized for the same work done by others.  Camera

As for the positives, this new form of work surveillance, if you want to call it that, gives the employee incentive to stay on track and not fall behind. It will be a motivating force that will increase productive output. Furthermore, in the case of truck drivers and other such work responsibilities, it will keep them awake in the case of long working hours. A Rackspace study found that as a result of wearing these devices, employees are more productive and satisfied with their work.

Right to Privacy

Now to address the elephant in the room. What about basic civil rights violations? The biggest concern here is the right to privacy. Although the right to privacy is not expressly stated in the United States Constitution, it is referenced in a number of different contexts. The Fourth Amendment implies people have a right to be secure from any intrusions. Moreover, there is case law that strengthens this concept that has been in development for the past couple hundred years. Mass surveillance and privacy is an ongoing issue in various industries and it will remain at the forefront because the law in this area is vague and not clearly defined.

However, in general, it seems these performance-monitoring devices, although violating certain privacy rights, have enough benefits to them that it might not warrant stricter guidelines. Although employees are in a sort of panopticon (conceived by famed philosopher Foucault, a panopticon refers to a surveillance system where the person is constantly in fear of being punished), this new system works towards a better work experience. Whether the courts will take this into consideration remains to be seen.

As for the police force retaliating against the police department for abusing their rights, this is a matter that is not quite the same as a typical employer-employee dynamic. A police department is an arm of the government and as such, should be held to a higher standard. Unknowingly, police officers have been recorded with body cameras on their person. There has been outrage as a result. In light of recent police brutality that has garnered national attention, the police department has sought to make sure that their police officers are in compliance and do not act out of line.

This will speed up the evidence-gathering process if there ever comes a time when the officer is investigated for committing such activities. On the other hand though, there are privacy concerns. Should the police officer be obligated to wear such devices at all times? And it seems that the police department did not inform their officers of the use of such devices. One officer stumbled upon the body cameras. As this has been an issue that has received much press but little actual litigation, only time will tell what will come of this. The justice system needs to see this through.



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