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Are Firearms The Real Problem or People Who Abuse them?

Posted on December 7, 2015 by Caroline Anderson - Senior Support Specialist

With the escalating scourge of mass killings, we are obliged to examine both the underlying causes of and potential solutions to drastically reduce mass shootings, by those with depraved and evil minds, sociopaths, psychopaths, terrorists and barbarians who without any conscience (morals) whatsoever use military style assault weapons and/or stockpile and then utilize huge quantities of bullets and large quantities of ammunition magazines to murder innocent and unsuspecting individuals regardless of age, race, sex, .

It is noteworthy, the subject of colossal shootings is complex and there are clearly two sides of the equation. Moreover, these concerns are not new; sadly and repeatedly have political overtones. Hence, it is hoped the reader of this blog will perform his/her own search on the internet to review state and federal firearms laws, exceptions, limitations and other issues, including actual statistics. We should be mindful that these are serious and horrific acts, yet we need to acknowledge there also are far more deaths that are due to other causes (such as deaths due to driving under the influence, but for the sake of this comment only and albeit an over simplification and generalization, but we do not outlaw or seriously limit the sale &/or consumption of alcohol).

Proponents of gun control claim we need stricter gun control laws. Opponents claim we already have strict regulations, and in those jurisdictions that have “gun-free zone” laws in which it is prohibited from having a firearm these locations have a far higher number of shootings.

First, it is noteworthy, that the Federal Gun Control Act, enacted in 1968, establishes a list of those (such as felons) who are prohibited from possessing, obtaining or receiving firearms and ammunition. In addition, there are many other restrictions as to the sale, use, possession, transfer, etc. of such weapons. Click the following link for the 247 page Federal Firearms Regulations: Federal Reference Guide

Second, California has one of the strictest gun control laws in the United States. Yet, the recent shootings in San Bernardino, a large metropolis in California, occurred even though assault weapons were used and are already against the law. Also, California has a huge number of restrictions, such as limiting large capacity magazines that hold a dozen or more bullets. Click the following Link for the California Firearms Laws summary: California Firearms Law

Is the solution to enact tougher gun laws? If so, why did the most recent shootings occur in three states (California, Colorado and Oregon) that already have very strict gun laws?

Some pundits argue the states that have the most lenient rules and regulations regarding firearms have the lowest number of mass shootings; perhaps, because terrorists look for sites where they will not face opposition by individuals that “carry” weapons. Maybe that is one of the reasons movie theaters and malls, shopping centers, schools, churches and social centers, etc. have been the place of choice and selected by such terrorists. These same pundits encourage individuals to arm them self to be able to defend and/or fight back; they note that police cannot be on every corner and the drive time to respond is too great to risk your death or anyone else in the interim. Some advocate we urge our legislators to pass emergency legislation to increase the number of police, sheriff and FBI, and give them the power they need to accomplish their job.

It is hoped this blog will open a further dialogue in the reoccurring debate that includes many who claim taking away &/or more severely limiting those law abiding individuals who desire to possess and/or carry firearms will not prohibit the lawless, who it seems inevitably find ways to obtain whatever weapons they desire, whether illegally or not. Choose the narrative you feel comfortable with, but be open to seeking a realistic solution that is based upon logic, reason, and, of course, our United States Constitution, and not political rhetoric. Contact your state and federal legislators to voice your opinion.

Appeals Court Upholds California Death Penalty

Posted on November 14, 2015 by Caroline Anderson - Senior Support Specialist

On November 12, 2015, the United States 9th Circuit Court of Appeals upheld
the constitutionality of the California Death Penalty and in so doing reversed the ruling by the US District Court that decided under the 8th Amendment it was unconstitutional as cruel and unusual punishment because of lengthy and unpredictable delays. The California Attorney General argued the delays were a result of the number and length of time involved in the legal maneuvers and appeal process that affords inmates their constitutional right to file appeals and writs of habeas corpus.

The history of the case is that in 2003, the California Supreme Court upheld the underlying conviction of the defendant/inmate on first-degree murder and rape charges.

In California since 1978, there have been approximately 900 defendants sentenced to death, with only 13 actual executions, and none in about ten years. Executions at San Quentin State Prison have been on hold since 2006 when a Federal Judge deemed there to be legal issues with the then current and past combined multi-drug lethal procedures. Since there is now a national shortage of single lethal drugs that too poses additional problems. In California, there are now about 750 inmates on death row (about 100 died while imprisoned due to other causes).

Governor Brown Extends The Enforcement Power of Board of Registered Nursing

Posted on October 21, 2015 by Caroline Anderson - Senior Support Specialist

On October 1st, the Governor extended the power of the Board of Registered Nursing (BRN) to regulate the practice of Nursing to January 1, 2018 when it will be repealed if a new law is not enacted. The previous sunset law permitted the BRN to impose disciplinary action, and to grant or deny applicants a license, only up until January1, 2016.

Regardless of your politics, it seems futile to ask why our legislature might deem the regulation of nurses &/or professional and occupational licensing to be of no public concern and from time to time enact legislation to repeal any such authority. This comes at a time when there are so many social, financial, community and political needs of our state that instead should take precedence over passing sunset laws related to health care professionals. If there is a question regarding the abuse of discretion by a state Board, there are other means by which the legislature can deal with any such problem or issue. Had there been sufficient agreement with the above position, the legislature would have selected another date far in the future, such as 2030 or even later.

The following is a link to Senate Bill 466: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160SB466

New California Law For Traffic Fines

Posted on September 23, 2015 by Caroline Anderson - Senior Support Specialist

Governor Brown just signed new legislation providing relief for traffic fines in California. The law is operative beginning October 1, 2015 and runs through March 31, 2017. The goal is to help those who receive a traffic ticket from facing not only large fines, but assessments as well. For example, if you receive a$100 ticket, you may discover the actual cost is closer to $500 after you pay the fees and assessments, etc. This is also the case because if an individual does not appear in court or fails to make payments on his/her ticket, an additional $300 is added.

Although Judges have the discretion to reduce or waive payment of bail, fines, penalties, fees &/or a civil assessment, the previous law required advance payment in order to schedule a court appearance in front of a Judge to request the Court vacate the civil assessment or reduce fines, penalties, etc. Now, the payment of the assessment is not required before one can schedule a court hearing on his or her pending traffic infraction.

Lastly, the new law establishes a one-time amnesty program allowing for the payment of 50% of unpaid bail, fines or assessments (certain individuals receiving public benefits may only be required to pay 20%). In some cases, one can apply for installment payments for their outstanding traffic tickets. In addition, the DMV cannot deny reinstating the driving privilege of anyone who participates in this amnesty program, as long as there are no outstanding serious misdemeanor infractions such as drunk driving and/or felony warrants and the individual does not owe victim restitution on any case within the county.

Hence, anyone making payments on their traffic fines, no matter when they received their citation, can get their license back immediately. Nearly five (5) million drivers in California had their drivers’ licenses suspended in the past approximate nine years. Moreover, no criminal action can be filed against anyone if he or she is delinquent regarding a fine or bail under this amnesty program (it has been estimated there currently is approximately $10 billion in uncollected fines owed).

Is a University Liable for Violence on the Campus?

Posted on August 5, 2015 by Caroline Anderson - Senior Support Specialist

The California Court of Appeals was scheduled to hear oral argument on Friday, August 7, 2015 in a case filed in 2010 by Katherine Rosen against her attacker and UCLA, which is governed by the Regents of the University of California; at the time she was a UCLA student who was stabbed and had her neck slashed during a class in an unprovoked attack by a fellow student. In the criminal case against the defendant, he was found not guilty by reason of insanity and placed in a psychiatric hospital, Patton State Hospital, for an indefinite period of time.

In the civil action the plaintiff argued the university failed to properly respond to warnings about the potentially violent behavior of the defendant. This was in contrast to the defense arguments that it was a random act of violence. Proponents of civil liability contend a university owes a duty to provide a safe environment to and protect its students from others on the campus, particularly those who get treatment from the college for mental health conditions. It is a sad reality that acts of cruelty that are plainly brutal and inhumane have become a national scourge.

Women in the Legal System – As a Judge or Judged as a Lawyer

Posted on June 15, 2015 by Caroline Anderson - Senior Support Specialist

In a recent study published on June 10, 2015, in the Social Science Research Network, the authors look at the significance of male and female participants as judges and litigants in the legal system. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2616502

The authors noted they evaluated empirical data to determine to what extent a male or a female lawyer obtained a better result in front of a male panel of judges. Their research substantiated that female attorneys generally did better than their male partisans in cases heard before an all-male panel of judges; and, male attorneys tended to fare better before a mixed-gender panel hearing the case. In other words, female litigants tended to obtain a better result in front of an all-male panel of judges, and a mixed-panel of judges seemed to be more favorable to male litigants than an all-male panel.

After reading the study referenced herein, perhaps it will offer additional insight into the important question to what extent gender bias impacts the decision making process in our judicial system. In reality, there is the human side of being a judge and, therefore, judges bring their own predilections to the bench as do the majority of all of us when presented with issues &/or narratives. Many commentators will contend the difference is that the goal of judges, among other things, is to be totally objective and unbiased.

Are Contractual Jury Trial Waivers Valid?

Posted on April 19, 2015 by Caroline Anderson - Senior Support Specialist

On April 16, 2015, in the case of County of Orange vs. Tata Consultancy Services, Ltd. et al, Case #14-72343, the United States Court of Appeals For The Ninth Circuit granted a Petition For Writ of Mandamus from the U.S. District Court (Southern District), and in the facts of this case held unenforceable a jury waiver provision in a contract that was not expressly authorized by statute under California law even though a voluntary and knowing pre-dispute contractual waiver is valid under Federal law.

Since it is not uncommon because of economic factors for lawyers who draft contracts to provide for a waiver of the right to a jury otherwise guaranteed by the Seventh Amendment to the U.S. Constitution and Section 6 of the California Constitution, this opinion will likely have a significant impact when a party waives a right to a jury trial that is not otherwise authorized by Civil Code section 631.

In general, contracts that provide for arbitration in lieu of a jury trial, however, are enforceable as long as a legally proper and complete waiver is set forth therein.

Intoxicated Passenger Unable to Collect from Taxi Service

Posted on March 12, 2015 by Caroline Anderson - Senior Support Specialist

A taxi company and its driver were sued for wrongful death (negligence) when a passenger who was intoxicated exited the cab, and then within a half an hour walked into heavy traffic and was killed by a drunk driver.

On March 11, 2015, a Santa Barbara Court jury concluded the decedent’s mother could not collect even though the municipal law required a taxi driver to allow a passenger to exit only at a curb.

The Plaintiff’s lawyer argued the taxi cab was a common carrier and owed a higher standard (duty) of care to ensure the safety of its customers. The outcome was not based upon a lack of negligence by the defendants, and/or any one of them, however, but their neglect was deemed not the proximate cause of the death of the passenger. In other words, the conduct was not a substantial factor causing the death of the passenger in both time and location.

It is noteworthy that the 78 year old driver of the vehicle that struck and killed the victim was arrested and charged with felony hit and run. His blood alcohol was three times the legal limit, he entered a guilty plea and was sentenced to one year in the County Jail and three years’ probation. His insurance carrier paid the family who settled for policy limits of $30,000.

The case is: Quintanar v. Absolute Cab LLC., et al. (Santa Barbara Super. Ct., originally filed May 13, 2014).

State Board License Diversion Program

Posted on February 12, 2015 by Caroline Anderson - Senior Support Specialist

A Diversion Program is intended to provide an alternative for a professional who is licensed in the State of California when there is evidence of a substance abuse and/or impairment due to a mental illness who would otherwise be charged with wrongdoing . One should not be embarrassed by what may appear to be a shortcoming as there are over forty (40) different life stressors, multiple daily work pressures, and everyone should understand some challenges are simply genetic.

Obtaining a painstaking medical history and physical examination can afford the best way to evaluate your situation. Since this may also involve critical legal issues, however, seeking the advice of experienced legal counsel should be a paramount consideration as well. A truly understanding and compassionate lawyer can discuss your eligibility, the legal alternatives, as well as the advantages and disadvantages of the course of action you may consider.

At the law firm of SPITAL & ASSOCIATES, you can obtain a confidential attorney consultation at no charge, and we can help you identify the symptoms that may exist, if any, and to assist you in changing the outcome. There can be unintended consequences you need to fully understand when you have a professional or occupational license and, therefore, this may be a defining moment in your career. As our public service, we are here to help you so that you do not gamble on your career

Choosing the best course of action can make a huge difference now and in the future.

Unintended Consequences of Criminal Offenders Being Transferred from State Prison to County Jail

Posted on December 8, 2014 by Caroline Anderson - Senior Support Specialist

The growing population of over 150,000 inmates in state prisons in California has exceeded the level the U.S. Supreme Court opined in 2011 is permissible. There has been litigation in Federal Court to obtain a more speedy reduction of the state prison population, and a new law has been enacted as a result of the Governor and Legislature in California establishing the state’s prison realignment; this is the name given to transferring inmates to county jails to reduce the state prison population to about 110,000. A Federal three-judge court previously set June, 2013 as the deadline for California to reduce by over 37% its state prison population beyond each prison’s building capacity. The date was recently extended to February, 2016. This narrative has been based upon the perceived challenge of the State of California to provide adequate health care to inmates.

The Federal Court allowed this additional period of time subject to transferring state prisoners to private correctional centers and county jails in California, but not any longer to out of state facilities. This was also based upon, among other reasons, the representation of Governor Brown that shorter sentences would be imposed on non-violent criminals; issuing additional good behavior credits to prisoners so they could be eligible for an earlier release; speeding up and expanding early parole for those over 65 years of age with at least 25 years in prison; along with those who are medically incapacitated, as well as expanding the rehabilitation programs provided to inmates.

The problem is not simply the transfer of inmates to County Jails, but now the local detention facilities statewide are overcrowded. Moreover, it has been alleged there is an even greater conundrum in that far more sophisticated criminals are now incarcerated in County Jails. For example, the San Diego County Sheriff’s Department that oversees the jails in this County has reported there has been an increased number of drugs being smuggled into the jails; this drug trade that previously was typical of state prisons has now become a serious problem in county jails. It has been reported there were 221 of these drug and alcohol cases in the San Diego County Jails in 2012, which constitutes over a 50% increase from that in 2011. There was a total of 279 of such cases in 2013, and about 335 of these particular cases between January and September, 2014.

To better address one of these problems, San Diego has installed body scanners at a cost of $150, 000 each unit and $10,000 each year to provide service and maintenance. This month, the County Board of Supervisors also approved spending more than three-quarters of a million dollars to obtain four additional scanners and for a five year maintenance agreement. Besides visitors hiding contraband, some of those picked up for minor probation and parole violations have been smuggling drugs into the jails, as they may only be incarcerated for up to 10 days.

But what is the best solution? Clearly, we need to implement greater rehabilitation and educational programs. For the most part, we are spending the money to incarcerate people who are addicted to alcohol and drugs, have a mental illness and/or do not have sufficient education and labor skills, when rehabilitation will have a far greater impact on this growing societal problem. Many advocates believe it can help to let local and state legislators know our political views, and of course, to become more involved in community programs.

Category Archives: General Public Interest