Lis Wiehl Books http://www.liswiehlbooks.com FOX News Legal Analyst and Author Fri, 05 Dec 2014 20:34:01 +0000 en-US hourly 1 http://wordpress.org/?v=3.9.3 Legal Lis: Brown Family Lawyer Will Pursue “Every Legal Avenue” http://www.liswiehlbooks.com/2014/12/legal-lis-brown-family-lawyer-will-pursue-every-legal-avenue/ http://www.liswiehlbooks.com/2014/12/legal-lis-brown-family-lawyer-will-pursue-every-legal-avenue/#comments Fri, 05 Dec 2014 20:33:14 +0000 http://www.liswiehlbooks.com/?p=1367 LW

Even though a grand jury has decided not to indict Darren Wilson for the shooting of Michael Brown, that does not mean that Wilson’s time in court is over. It’s still possible that there will be federal charges, and then there’s the chance of a civil suit brought by Brown’s family. The lawyer for the Brown family recently announced that they would pursue “every legal avenue” available to them. One thing this likely means is a wrongful death suit. Missouri’s law on wrongful death says the following:
537.080. 1. Whenever the death of a person results from any act, conduct, occurrence, transaction, or circumstance which, if death had not ensued, would have entitled such person to recover damages in respect thereof, the person or party who, or the corporation which, would have been liable if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured, which damages may be sued for: (1) By the spouse or children or the surviving lineal descendants of any deceased children, natural or adopted, legitimate or illegitimate, or by the father or mother of the deceased, natural or adoptive; (2) If there be no persons in class (1) entitled to bring the action, then by the brother or sister of the deceased, or their descendants, who can establish his or her right to those damages set out in section 537.090 because of the death; (3) If there be no persons in class (1) or (2) entitled to bring the action, then by a plaintiff ad litem. Such plaintiff ad litem shall be appointed by the court having jurisdiction over the action for damages provided in this section upon application of some person entitled to share in the proceeds of such action. Such plaintiff ad litem shall be some suitable person competent to prosecute such action and whose appointment is requested on behalf of those persons entitled to share in the proceeds of such action. Such court may, in its discretion, require that such plaintiff ad litem give bond for the faithful performance of his duties.
In short, this means a wrongful death claim can be brought against a person whose negligent or intentional actions caused the death of another person. And to win a wrongful death suit, the Brown family has a much lighter burden than there would have been in a criminal case. In general, crimes must be proven beyond a reasonable doubt. In a civil wrongful death suit, though, the standard of proof is a preponderance of evidence, which basically just means that it is more likely than not that a certain thing happened. In a wrongful death suit against Darren Wilson, it would have to be shown that it is more likely than not that Wilson’s actions were responsible for Michael Brown’s death. Many watched as Prosecuting Attorney Bob McCulloch announced that there would be no indictment for Darren Wilson. We also saw the outraged reactions from protestors in and around Ferguson, Missouri. Then came Wilson’s resignation from the Ferguson Police Department. What’s next in this story has yet to be determined, but it would not be a shock to hear that the Brown family is moving forward with a wrongful death suit. What are your thoughts on the subject? Hear mine on the latest Legal Lis podcast: foxrad.io/1BdNfpQ ]]>
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Legal Lis: Delta Offers 0 Credit to Owner for Lost Dog http://www.liswiehlbooks.com/2014/11/legal-lis-delta-offers-200-credit-to-owner-for-lost-dog/ http://www.liswiehlbooks.com/2014/11/legal-lis-delta-offers-200-credit-to-owner-for-lost-dog/#comments Fri, 14 Nov 2014 20:04:09 +0000 http://www.liswiehlbooks.com/?p=1361 delta   Every time you fly, if you check your bags, you have to trust someone else to take care of and deliver your possessions. I always get more than just a little anxious at the thought of handing over clothes and the like, because a lot can go wrong. Things can be damaged, your bag can get lost, you miss a connection and the bag goes one way while you're stuck somewhere else. The possibilities are all but endless. As much as I dread the thought of losing my things, in the end, they are just things. In the grand scheme of traveling, having your bag lost or misplaced isn’t the end of the world. But what if, instead of your suitcase filled to the brim with possessions, an airline lost your dog? This is what happened to one recent traveler. Frank Romano boarded a Delta flight from California to Florida after handing over his pit bull, Ty, to travel in a kennel. Before the flight left, though, Frank was told that Ty had chewed his way out of the kennel and was lost. Delta claims to be doing all things possible to find Ty and the airline has offered Frank a 0 credit for future travel. No, that is not a typographical error. A dog is missing and Delta has offered only 0 in consolation. How can this be? Is Delta liable for the loss of the dog? If so, for how much? These are all the questions that flooded my head as I read about Frank and Ty. If you’re just as curious, here are a few answers:
  • Yes, airlines are liable for lost or damaged baggage, which includes a dog. Airlines limit their liability and must meet a minimum that is set by the federal government. Currently, the minimum dollar amount airlines can establish to compensate for lost, delayed and damaged baggage on domestic flights is ,400.
  • A quick check of Delta's policy on baggage liability reveals that the airline has gone with the minimum.
  • Passengers may declare a higher value for their baggage, making an airline liable for more than the minimum, but said passenger must do so before the flight and must pay a fee.
  • A passenger can challenge the liability limit. In general, though, as long as the passenger had notice of the limit and an opportunity to declare a higher value for that baggage, the limit will hold up in court.
As far as I can tell, Frank did not declare a higher value, so it looks like any liability for his missing dog would be capped at ,400. And case law has tended to stand by an airline's minimum liability. For example, in 1983, Thomas Deiro shipped nine racing greyhounds by air from Portland to Boston. During a layover in Dallas, the airline left the dogs in their cages in 97° heat. Seven of the dogs died, and two were injured. Deiro sued American Airlines for 0,000, but the court only awarded him 0, which was the liability limit at the time. The court reasoned that as an experienced traveler, Deiro should have declared a higher value for his dogs. In its decision, the court stated, "We find it difficult to imagine how any passenger with Deiro's experience, planning to check a quarter of a million dollars worth of baggage, could have had more opportunity or incentive to familiarize himself with the baggage liability provisions." In sum, airlines have a long and protected history in limiting their liability. Nevertheless, here’s hoping that Ty and Frank are reunited soon. You can hear more of my thoughts on this topic on the Legal Lis podcast: foxrad.io/1xhHHJd   ]]>
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Legal Lis: Homeowners Association Battles with an Elderly Veteran over a Flagpole http://www.liswiehlbooks.com/2014/11/legal-lis-homeowners-association-battles-with-an-elderly-veteran-over-a-flagpole/ http://www.liswiehlbooks.com/2014/11/legal-lis-homeowners-association-battles-with-an-elderly-veteran-over-a-flagpole/#comments Mon, 03 Nov 2014 14:37:16 +0000 http://www.liswiehlbooks.com/?p=1354 Lis

An 82-year-old man and his wife have recently been fielding letters from their homeowners association related to the flagpole they have in their front yard. The couple was first told in September that their flagpole should be removed from the front yard because it was not mounted to their home. But Bob Willits, who served four years during the Korean War, and his wife, Judy, are fighting the requests from the Fieldstone Homeowners Association. At first blush, it’s hard for me to imagine why a homeowners association would be so set on fighting a flagpole. As far as I can tell, it isn’t blocking a public sidewalk, it’s not endangering people in the neighborhood, and there’s nothing obscene of offensive being flown from the flagpole. No, it’s seems to be just two people intent on expressing their patriotism. Beyond this, though, there’s also the fact that there’s something called the Freedom to Display the American Flag Act of 2005, which intends to prevent the likes of a homeowners association from restricting homeowners when it comes to displaying the U.S. flag on their property. For the legally inclined, here’s the text of the American Flag Act:
SECTION 1. SHORT TITLE. This Act may be cited as the `Freedom to Display the American Flag Act of 2005'. SEC. 2. DEFINITIONS. For purposes of this Act-- 1. the term `flag of the United States' has the meaning given the term `flag, standard, colors, or ensign' under section 3 of title 4, United States Code; 2. the terms `condominium association' and `cooperative association' have the meanings given such terms under section 604 of Public Law 96-399 (15 U.S.C. 3603); 3. the term `residential real estate management association' has the meaning given such term under section 528 of the Internal Revenue Code of 1986 (26 U.S.C. 528); and 4. the term `member'--
(A) as used with respect to a condominium association, means an owner of a condominium unit (as defined under section 604 of Public Law 96-399 (15 U.S.C. 3603)) within such association; (B) as used with respect to a cooperative association, means a cooperative unit owner (as defined under section 604 of Public Law 96-399 (15 U.S.C. 3603)) within such association; and (C) as used with respect to a residential real estate management association, means an owner of a residential property within a subdivision, development, or similar area subject to any policy or restriction adopted by such association.
 SEC. 3. RIGHT TO DISPLAY THE FLAG OF THE UNITED STATES. A condominium association, cooperative association, or residential real estate management association may not adopt or enforce any policy, or enter into any agreement, that would restrict or prevent a member of the association from displaying the flag of the United States on residential property within the association with respect to which such member has a separate ownership interest or a right to exclusive possession or use. SEC. 4. LIMITATIONS. Nothing in this Act shall be considered to permit any display or use that is inconsistent with-- 1. any provision of chapter 1 of title 4, United States Code, or any rule or custom pertaining to the proper display or use of the flag of the United States (as established pursuant to such chapter or any otherwise applicable provision of law); or 2. any reasonable restriction pertaining to the time, place, or manner of displaying the flag of the United States necessary to protect a substantial interest of the condominium association, cooperative association, or residential real estate management association.
According to the homeowners association, it has authority to request the removal of the flagpole under Section 4, Part 2. Evidently, it believes that it has a substantial interest in restricting the “time, place, or manner” of the Willits’ flagpole. What do you think? Does the Homeowners Association have the right to make this request? Is there a substantial interest? Hear my thoughts on the Legal Lis podcast: http://foxrad.io/1zKC1Jn ]]>
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Legal Lis Podcast: Thomas Eric Duncan’s Family Eyes Lawsuit http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-thomas-eric-duncans-family-eyes-lawsuit/ http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-thomas-eric-duncans-family-eyes-lawsuit/#comments Fri, 17 Oct 2014 21:17:45 +0000 http://www.liswiehlbooks.com/?p=1347 TD

No doubt you’ve heard of Thomas Duncan, that he was the first person to be diagnosed with Ebola on United States soil, and that he died from the disease on October 8, 2014 at Texas Health Presbyterian Hospital. There’s certainly more to the story, though, like the suggestion that he lied to airport screeners in Liberia in order to come to the United States. What’s known is that he helped a pregnant woman in Liberia who was infected with Ebola. What some say is not so clear is whether or not he had reason to believe he might be infected when he boarded a plane to come the U.S. Another huge part of the story is what happened once he got here. He went to Texas Health Presbyterian Hospital with a fever shortly after arriving from Liberia. The story goes that he mentioned that he had been to Liberia but that information was not properly relayed to the appropriate people. And so, he was sent home with some antibiotics. Two days later, he returned to the hospital in an ambulance and this time, proper precautions were taken and he was isolated. Shortly thereafter, he died. So far, two of the nurses involved in the treatment of Duncan have been diagnosed with Ebola. And many others are being monitored. The short of it is that Ebola is not just a story we observe from afar anymore. It’s here, in our own backyard, so to speak. And now, there is talk of a lawsuit brought by Duncan’s family against the hospital related to his treatment. So what we’re talking about is a potential medical malpractice lawsuit. In general, medical malpractice occurs when a doctor or medical professional fails to competently perform his or her duties. In other words, the doctor or medical professional was negligent in relation to his or her treatment of a patient. In Texas, the statute related to medical malpractice sets an extremely high bar when it comes to proving that there was medical malpractice. For the mildly curious, the gist of the law is that it must be proven that doctors were “wilfully or wantonly negligent.” For the extremely curious, the laws says the following:
Sec. 74.151. LIABILITY FOR EMERGENCY CARE (a) A person who in good faith administers emergency care is not liable in civil damages for an act performed during the emergency unless the act is wilfully or wantonly negligent, including a person who:

(1) administers emergency care using an automated external defibrillator; or

(2) administers emergency care as a volunteer who is a first responder as the term is defined under Section 421.095, Government Code.

(b) This section does not apply to care administered:

(1) for or in expectation of remuneration, provided that being legally entitled to receive remuneration for the emergency care rendered shall not determine whether or not the care was administered for or in anticipation of remuneration; or

(2) by a person who was at the scene of the emergency because he or a person he represents as an agent was soliciting business or seeking to perform a service for remuneration.

(c), (d) Deleted by Acts 2003, 78th Leg., ch. 204, Sec. 10.01. (e) Except as provided by this subsection, this section does not apply to a person whose negligent act or omission was a producing cause of the emergency for which care is being administered. This subsection does not apply to liability of a school district or district school officer or employee arising from an act or omission under a program or policy or procedure adopted under Subchapter O-1, Chapter 161, Health and Safety Code, other than liability arising from wilful or intentional misconduct.
So, are we talking about doctors and medical professionals who were “wilfully and wantonly” negligent? Yes, Duncan was initially released from the hospital with a fever of 103 and had relayed the fact that he had been in Liberia. Yes, the hospital made a few missteps. But, under Texas law, it’s going to be a really tough case to prove. What are your thoughts on Thomas Duncan and the possibility of a lawsuit brought by his family? You can hear more of my thoughts on the Legal Lis podcast: foxrad.io/1w3mnns ]]>
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Legal Lis Podcast: The Supreme Court Denies All Same-Sex Marriage Petitions http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-the-supreme-court-denies-all-same-sex-marriage-petitions/ http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-the-supreme-court-denies-all-same-sex-marriage-petitions/#comments Fri, 10 Oct 2014 18:35:47 +0000 http://www.liswiehlbooks.com/?p=1342 SC

This week, the Supreme Court denied all seven petitions related to same-sex marriage, which may or may not come as a shock to you. You are likely to recall that in June 2013, in United States v. Windsor, the Supreme Court struck down Section 3 of the federal Defense of Marriage Act, which had defined “marriage” as a union between a man and a woman. This five-to-four decision meant that same-sex couples who were married in states where same-sex marriage was legal would have the same rights as other married couples when it came to things like, say, filing joint federal tax returns. After the Windsor case, we all knew that the same-sex marriage issue would be back in the Supreme Court. We also knew that the Court was not completely opposed to addressing the issue. So you wouldn't be totally off-base in assuming that the Supreme Court would take on at least one of these seven petitions. But, if you were really tuning in, the denial of the petitions is not all that surprising. For instance, recently, Justice Ruth Bader Ginsburg suggested that the Court might not take on the current issue because there was no disagreement among the lower courts at this point. And it seems as though her prediction was correct. But the fact that the Supreme Court has denied these petitions does not mean that there are not huge effects, so it's important to understand these cases and know what to expect in the future. To begin with, let’s look at the seven petitions the Court denied:
  • Baskin v. Bogan (Indiana): This case challenged the state's denial of marriage rights to same-sex couples. It was filed in federal district court on March 12, 2014 where Chief Judge Richard Young found for the plaintiffs. A three-judge panel of the U.S. Court of Appeals for the Seventh Circuit upheld the district court ruling in a unanimous decision on September 4. Both parties asked the Supreme Court to consider the case.
  • Walker v. Wolf (Wisconsin): This is federal lawsuit filed in February 2014 that challenged Wisconsin's refusal to grant marriage licenses to same-sex couples. In June 2014, Judge Barbara Crabb of the U.S. District Court for the Western District of Wisconsin ruled for the plaintiffs. The state appealed her decision to the Seventh Circuit Court of Appeals, which affirmed her opinion in a unanimous decision on September 4. Wisconsin asked the Supreme Court to consider the case.
  • Herbert v. Kitchen (Utah): A federal case that challenged Utah's constitutional ban on marriage for same-sex couples. Three same-sex couples filed suit in March 2013. In December 2013, the U.S. District Court for the District of Utah found the state's ban on same-sex marriage unconstitutional. In June 2014, the Tenth Circuit Court of Appeals affirmed the decision of the district court. All parties supported review by the Supreme Court.
  • McQuigg v. Bostic, Rainey v. Bostic, Schaefer v. Bostic (Virginia): A group of same-sex couples in Virginia filed suit to challenge the state’s refusal to acknowledge same-sex marriages. The Fourth Circuit Court of Appeals ruled for the plaintiffs and the case went to the Supreme Court for consideration.
  • Smith v. Bishop (Oklahoma): Two same-sex couples challenged Oklahoma's ban on same-sex marriage. In January 2014, U.S. District Court Judge Terence Kern ruled that Oklahoma's ban on same-sex marriage was unconstitutional. The Tenth Circuit Court of Appeals affirmed.
In the coming days and weeks, you can expect that same-sex marriages will be permitted when existing lower-court rulings against state bans go into effect in Indiana, Wisconsin, Utah, Virginia, and Oklahoma. Also, when the court of appeals rulings are implemented, same-sex marriages can occur in North Carolina, South Carolina and West Virginia (Fourth Circuit) and in Colorado, Kansas, and Wyoming (Tenth Circuit). And finally, four other circuits – the Fifth, Sixth, Ninth, and Eleventh – are currently considering the constitutionality of same-sex marriages. And these circuits could make decisions based on how they interpret what the Supreme Court did. Needless to say, denying the petitions has had and will have a resounding impact. You can hear my thoughts on this topic on the Legal Lis podcast: foxrad.io/1v2H4St ]]>
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Legal Lis Podcast: Is Alton Nolen a Terrorist? http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-is-alton-nolen-a-terrorist/ http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-is-alton-nolen-a-terrorist/#comments Fri, 03 Oct 2014 17:48:29 +0000 http://www.liswiehlbooks.com/?p=1337 LL

Colleen Hufford was beheaded by 30- year-old Alton Nolen during a gruesome attack at a Vaughan Foods plant in Oklahoma. Nolen was also able to repeatedly stab another victim, Traci Johnson, before he was shot by the company's CEO, Mark Vaughan, who is also a reserve deputy sheriff. Nolen had been suspended from the company just before he went into Vaughan’s administrative office and attacked the women. Cleveland County prosecutor Greg Mashburn said on Tuesday, 09/30/14, that Nolen will be charged with first-degree murder as well as assault charges. The good news is that first-degree murder in Oklahoma can result in the death penalty. And it’s not unlikely that this would be Nolen’s fate. But some aren’t satisfied, saying that Nolen is a terrorist and should be charged as such. Before I voiced an opinion one way or the other, I wanted to do a little digging of my own. In essence, I wanted a list of all of the things that point to charging Nolen as a terrorist. Here’s what I’ve come up with:
  • Nolen recently converted to Islam and reportedly tried to convert co-workers to Islam.
  • Nolen used Arabic terms during his attack.
  • On his Facebook account, Nolen posted photos of Osama bin Laden, other jihadis, and the Twin Towers burning.
  • His Facebook account also included a very graphic photo of a beheaded victim.
  • He reportedly wrote the following on his Facebook: "She (the Statue of Liberty) is going into flames. She and anybody who's with her."
  • He posted photos of a woman being flogged with the words "Islam will dominate the world. Freedom can go to hell."
  • There are some reports that Suhaib Webb, an imam with known ties to former Al Qaeda mastermind Anwar al Awlaki, appears to have influenced the life of Alton Nolen. Webb, who was once the leader of the Islamic Society of Greater Oklahoma City, now serves as an imam at a mosque in Boston once attended by accused Boston Marathon bombers Dzhokhar and Tamerlan Tsarnaev.
  • Possibly copying ISIS: ISIS has posted for all to see the beheadings of James Foley, Steven Sotloff, and David Haines. This gives terrorists inspiration to copy. It could be that Nolen was acting as a so-called “lone wolf”. Just last week, an ISIS leader, Abu Muhammad al-Adnani, released a recorded speech directed toward "lone wolf" operations and encouraging terrorists to act. "Do not ask for anyone's advice and do not seek anyone's verdict, kill the infidel whether he is civilian or military."
No one factor on its own necessarily spells terrorist, but when combined, you definitely have to wonder. Do you have anything else you think should be added to the list? And do you think Alton Nolen is a terrorist? You can hear my thoughts on how Nolen should be charged on the Legal Lis podcast: foxrad.io/1pGfa6P ]]>
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Legal Lis Podcast: Ray Rice and Double Jeopardy http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-ray-rice-and-double-jeopardy/ http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-ray-rice-and-double-jeopardy/#comments Fri, 26 Sep 2014 20:07:15 +0000 http://www.liswiehlbooks.com/?p=1329 RR Unless you’ve successfully avoided all types of news and gossip lately, you’ve heard about Ray Rice’s recent scandal. What’s more, you’ve probably seen the tragic video in which he punched his then-fiancé, knocking her out, and then dragged her out of an elevator. For Ray Rice – and the NFL – the release of the video footage changed everything. Seeing what he did somehow makes it more despicable, if that’s possible. Seeing it as a video outrages us and incites us to question the NFL. And seeing that video gives us something palpable to arm ourselves with when deciding how we feel about the situation. No doubt about it, Ray Rice should not be given the opportunity to play professional football again. But, legally, it’s not so clear. The first thing to understand is that NFL’s collective bargaining agreement does not have a so-called “double jeopardy” provision. What is does have is Article 46, Section 4, which states that a player cannot be disciplined twice “for the same act or conduct.” The importance of this provision really hinges on when the powers that be at the NFL had and knew about the video showing the assault. There are allegations that the surveillance video of Rice’s assault was sent to league security chief Jeffry Miller in April. There is also talk that there is a voicemail from league offices confirming receipt of said video on April 9. If this is true, then when Ray Rice was punished with a two-game suspension, that should have been the end of it. If NFL officials had already seen the video, then they knew all there was to know and had somehow decided that a two-game suspension was enough of a punishment. Under this version, you’d have to assume that once the video was leaked to the masses, the NFL reacted with an indefinite suspension to nullify the outrage. The problem here is that the two-game suspension was punishment number one. And because of Article 46, Section 4, Rice can’t be punished again for the same act or conduct. On the other hand, you have Miller saying, "I unequivocally deny that I received at any time a copy of the video and I had not watched it until it was made public on September 8.” And NFL Commissioner Roger Goodell has publicly said several times that no one in his office viewed the video until TMZ posted it on its website in September. If this is the truth, then the video brought new information to the table, and so it might be appropriate to revise the two-game suspension. Eventually, the truth will come out. We will know one way or another exactly when Goodell and company knew of the video. And this truth will likely have a huge impact on Rice’s future as a player. Which version of the story do you believe? Do you think people within the NFL saw the video before giving Rice his first punishment? Hear my thoughts in the latest Legal Lis podcast: foxrad.io/1pjtSAK ]]> http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-ray-rice-and-double-jeopardy/feed/ 1 Legal Lis Podcast: The Adrian Peterson Child Injury Case http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-the-adrian-peterson-child-injury-case/ http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-the-adrian-peterson-child-injury-case/#comments Thu, 18 Sep 2014 16:18:23 +0000 http://www.liswiehlbooks.com/?p=1319 Untitled1 In this week’s Legal Lis, one of the subjects I discussed was the recent issue involving Adrian Peterson and his method of disciplining his child. If you haven’t heard much on this story, the basic facts are as follows: Peterson, who plays for the Minnesota Vikings, has been indicted by a Texas grand jury for beating his four-year-old son with a “switch.” The incident occurred in May in Spring, Texas following an argument between Peterson’s son and another child over a video game. Peterson chalked it up to his style of parenting, simply a way to discipline his son, but the extensive injuries piqued the interest of law enforcement. According to reports and photos from the Houston Police Department, Peterson’s son received visible cuts and bruises to his back, buttocks, legs, hands and even scrotum. Because of the severity of the injuries, Peterson now faces charges of injury to a child. This case inevitably makes you wonder: To what extent should parents be permitted to discipline their children as they see fit? The emotional response is oftentimes that a parent should have a lot of freedom in doing just that, parenting. Some parents spank, some use timeouts, others take things away – each parent has a different way of enforcing rules and setting boundaries. And parents should have that right. You could argue all day that one way is better than the next, but in the end, a parent is going to raise their children (hopefully) in the way they think will result in kids who respect others and who recognize boundaries. I know good parents who spank and I know good parents who would never discipline physically – and neither method is necessarily better or worse than the other. But a problem arises when the fine line between spanking to discipline and actually beating a child is blurred. And when that line is blurred or crossed, that is precisely where the legal side of things comes in. For the most part, states tend to agree that a parent should be able to discipline a child - to a certain extent - as he or she sees fit. For example, here in New York, a “parent, guardian or other person entrusted with the care and supervision of a person under the age of twenty-one……may use physical force, but not deadly physical force, upon such person when and to the extent that he reasonably believes it necessary to maintain discipline or to promote the welfare of such person.”  And a New York court recently held that when a father spanked his child with an open hand in order to discipline the child, this was a “reasonable use of force.” A four-judge panel ruled in the unanimous decision that, “the father’s open-handed spanking of the child as a form of discipline after he heard the child curse at an adult was a reasonable use of force and, under the circumstances presented here, did not constitute excessive corporal punishment.” In California, “’serious physical harm’ does not include reasonable and age-appropriate spanking to the buttocks where there is no evidence of serious physical injury.”  And a court has recently found that a California mother who used a wooden spoon to spank her 12-year-old was not a child abuser. Laws and cases all across the U.S. support the notion that a parent can discipline their children when it’s reasonable. So what’s the big deal with Adrian Peterson? Well, primarily, it’s that his method of discipline was pretty extreme. Some would argue that the punishment went well beyond just plain maintaining discipline. The law in Texas is pretty lenient when it comes to parental discipline, stating that “the use of force, but not deadly force, against a child younger than 18 years is justified: (1) if the actor is the child's parent or stepparent or is acting in loco parentis to the child; and (2) when and to the degree the actor reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare.​” But that doesn’t mean a parent can beat a child in Texas without breaking the law. What this law clearly does is leave a lot of room for parents to decide how to discipline. What it does not do is allow a parent to beat a child and say it’s in the name of discipline after the fact. The fact that a second grand jury has indicted Peterson on a child-injury charge indicates that at least some believe he went beyond what the law allows. But Peterson maintains that his conduct was reasonable. What do you think? You can hear more of my thoughts on this issue on the Legal Lis podcast: http://foxrad.io/1pjtSAK ]]> http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-the-adrian-peterson-child-injury-case/feed/ 2 Legal Lis Podcast: Celebrity Nude Photo Hack and California’s New “Yes-Means-Yes” Bill http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-celebrity-nude-photo-hack-and-californias-new-yes-means-yes-bill/ http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-celebrity-nude-photo-hack-and-californias-new-yes-means-yes-bill/#comments Thu, 04 Sep 2014 18:22:41 +0000 http://www.liswiehlbooks.com/?p=1303 LL

In this week’s Legal Lis, I discussed many of the legal aspects related to the recently leaked nude photos of Jennifer Lawrence and other celebrities. I also talked about California’s new “Yes-Means-Yes” bill, which is related to sexual assault on college campuses. Below, I’ve included some of the legal issues that arise from these two topics as well as my thoughts. If you want to hear the full discussion, you can now listen to the Legal Lis podcast here: http://foxrad.io/1oDQawL Celebrity Nude Photo Hack: It’s hard to feel safe on the Internet. With all the hacking going on, it’s almost impossible for a person to expect that private information will, in fact, remain private. Identity theft, stolen credit card info, leaked photos, hacked emails – you don’t have to look too far to find a story that involves at least one of these issues. Enter the latest story in which several celebrities had private photos stolen and leaked to the masses. Some argue that these celebrities shouldn’t be surprised. If you have nude photos stored somewhere on the Internet, you’re exposing yourself to the possibility that these photos will end up in the wrong hands. Others think that when a person sends an intimate photo to a significant other or spouse or friend – in some way that’s intended to remain private – you should be able to expect that those photos will remain private. No matter which way you lean on this issue, there are laws that apply. One issue that has to be discussed related to this leak is what kind of liability there is for Twitter, Facebook and other sites that have or had links to the photos. Legally, the truth is that there is not much liability. Section 230 of the Communications Decency Act is a federal law that creates a lot of protection for providers of an “interactive computer service.” In fact, the law states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Case law testing the immunity of Internet service providers under Section 230 almost always goes the way of no liability. For example, in one case, the Fourth Circuit Court of Appeals found that “lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions — such as deciding whether to publish, withdraw, postpone or alter content — are barred.” The decision goes on to point out that “Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum.” This is just one of the issues that arise from the recent photo hack. You can hear more – including discussion on revenge porn and punishment for the people who actually do the hacking – on the Legal Lis podcast. What do you think: Should we expect privacy on the Internet? Should Twitter and the like be held liable? California’s “Yes-Means-Yes” Bill  The so-called “yes-means-yes” bill, which was passed unanimously by the California State Senate, would require universities in CA to adopt a standard of unambiguous consent from all parties engaging in sexual activity. The bill defines affirmative consent as an “affirmative, conscious, and voluntary agreement to engage in sexual activity” and goes on to state that it “is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity.” That someone doesn’t protest or resist does not equal consent. Neither does silence. The goal of the bill is to prevent sexual assault on campus. And with the White House reporting that 1 in 5 female college students is sexually assaulted while in college, this is a laudable and necessary goal. But some aren’t convinced the bill will achieve its goals, arguing that people who don’t get an explicit “yes” before sex will be deemed rapists even though there was, say, nonverbal affirmation. What are your thoughts: Do you think this bill is a good idea? Can it achieve its goals?   I hope you enjoy the new podcast! Every Thursday from now on, a Legal Lis podcast will be made available so you can listen to the topics I'm discussing.              ]]>
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Q&A on Police Brutality, Part II http://www.liswiehlbooks.com FOX News Legal Analyst and Author Fri, 05 Dec 2014 20:34:01 +0000 en-US hourly 1 http://wordpress.org/?v=3.9.3 Lis Wiehl Books http://www.liswiehlbooks.com FOX News Legal Analyst and Author Fri, 05 Dec 2014 20:34:01 +0000 en-US hourly 1 http://wordpress.org/?v=3.9.3 Legal Lis: Brown Family Lawyer Will Pursue “Every Legal Avenue” http://www.liswiehlbooks.com/2014/12/legal-lis-brown-family-lawyer-will-pursue-every-legal-avenue/ http://www.liswiehlbooks.com/2014/12/legal-lis-brown-family-lawyer-will-pursue-every-legal-avenue/#comments Fri, 05 Dec 2014 20:33:14 +0000 http://www.liswiehlbooks.com/?p=1367 LW

Even though a grand jury has decided not to indict Darren Wilson for the shooting of Michael Brown, that does not mean that Wilson’s time in court is over. It’s still possible that there will be federal charges, and then there’s the chance of a civil suit brought by Brown’s family. The lawyer for the Brown family recently announced that they would pursue “every legal avenue” available to them. One thing this likely means is a wrongful death suit. Missouri’s law on wrongful death says the following:
537.080. 1. Whenever the death of a person results from any act, conduct, occurrence, transaction, or circumstance which, if death had not ensued, would have entitled such person to recover damages in respect thereof, the person or party who, or the corporation which, would have been liable if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured, which damages may be sued for: (1) By the spouse or children or the surviving lineal descendants of any deceased children, natural or adopted, legitimate or illegitimate, or by the father or mother of the deceased, natural or adoptive; (2) If there be no persons in class (1) entitled to bring the action, then by the brother or sister of the deceased, or their descendants, who can establish his or her right to those damages set out in section 537.090 because of the death; (3) If there be no persons in class (1) or (2) entitled to bring the action, then by a plaintiff ad litem. Such plaintiff ad litem shall be appointed by the court having jurisdiction over the action for damages provided in this section upon application of some person entitled to share in the proceeds of such action. Such plaintiff ad litem shall be some suitable person competent to prosecute such action and whose appointment is requested on behalf of those persons entitled to share in the proceeds of such action. Such court may, in its discretion, require that such plaintiff ad litem give bond for the faithful performance of his duties.
In short, this means a wrongful death claim can be brought against a person whose negligent or intentional actions caused the death of another person. And to win a wrongful death suit, the Brown family has a much lighter burden than there would have been in a criminal case. In general, crimes must be proven beyond a reasonable doubt. In a civil wrongful death suit, though, the standard of proof is a preponderance of evidence, which basically just means that it is more likely than not that a certain thing happened. In a wrongful death suit against Darren Wilson, it would have to be shown that it is more likely than not that Wilson’s actions were responsible for Michael Brown’s death. Many watched as Prosecuting Attorney Bob McCulloch announced that there would be no indictment for Darren Wilson. We also saw the outraged reactions from protestors in and around Ferguson, Missouri. Then came Wilson’s resignation from the Ferguson Police Department. What’s next in this story has yet to be determined, but it would not be a shock to hear that the Brown family is moving forward with a wrongful death suit. What are your thoughts on the subject? Hear mine on the latest Legal Lis podcast: foxrad.io/1BdNfpQ ]]>
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Legal Lis: Delta Offers 0 Credit to Owner for Lost Dog http://www.liswiehlbooks.com/2014/11/legal-lis-delta-offers-200-credit-to-owner-for-lost-dog/ http://www.liswiehlbooks.com/2014/11/legal-lis-delta-offers-200-credit-to-owner-for-lost-dog/#comments Fri, 14 Nov 2014 20:04:09 +0000 http://www.liswiehlbooks.com/?p=1361 delta   Every time you fly, if you check your bags, you have to trust someone else to take care of and deliver your possessions. I always get more than just a little anxious at the thought of handing over clothes and the like, because a lot can go wrong. Things can be damaged, your bag can get lost, you miss a connection and the bag goes one way while you're stuck somewhere else. The possibilities are all but endless. As much as I dread the thought of losing my things, in the end, they are just things. In the grand scheme of traveling, having your bag lost or misplaced isn’t the end of the world. But what if, instead of your suitcase filled to the brim with possessions, an airline lost your dog? This is what happened to one recent traveler. Frank Romano boarded a Delta flight from California to Florida after handing over his pit bull, Ty, to travel in a kennel. Before the flight left, though, Frank was told that Ty had chewed his way out of the kennel and was lost. Delta claims to be doing all things possible to find Ty and the airline has offered Frank a 0 credit for future travel. No, that is not a typographical error. A dog is missing and Delta has offered only 0 in consolation. How can this be? Is Delta liable for the loss of the dog? If so, for how much? These are all the questions that flooded my head as I read about Frank and Ty. If you’re just as curious, here are a few answers:
  • Yes, airlines are liable for lost or damaged baggage, which includes a dog. Airlines limit their liability and must meet a minimum that is set by the federal government. Currently, the minimum dollar amount airlines can establish to compensate for lost, delayed and damaged baggage on domestic flights is ,400.
  • A quick check of Delta's policy on baggage liability reveals that the airline has gone with the minimum.
  • Passengers may declare a higher value for their baggage, making an airline liable for more than the minimum, but said passenger must do so before the flight and must pay a fee.
  • A passenger can challenge the liability limit. In general, though, as long as the passenger had notice of the limit and an opportunity to declare a higher value for that baggage, the limit will hold up in court.
As far as I can tell, Frank did not declare a higher value, so it looks like any liability for his missing dog would be capped at ,400. And case law has tended to stand by an airline's minimum liability. For example, in 1983, Thomas Deiro shipped nine racing greyhounds by air from Portland to Boston. During a layover in Dallas, the airline left the dogs in their cages in 97° heat. Seven of the dogs died, and two were injured. Deiro sued American Airlines for 0,000, but the court only awarded him 0, which was the liability limit at the time. The court reasoned that as an experienced traveler, Deiro should have declared a higher value for his dogs. In its decision, the court stated, "We find it difficult to imagine how any passenger with Deiro's experience, planning to check a quarter of a million dollars worth of baggage, could have had more opportunity or incentive to familiarize himself with the baggage liability provisions." In sum, airlines have a long and protected history in limiting their liability. Nevertheless, here’s hoping that Ty and Frank are reunited soon. You can hear more of my thoughts on this topic on the Legal Lis podcast: foxrad.io/1xhHHJd   ]]>
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Legal Lis: Homeowners Association Battles with an Elderly Veteran over a Flagpole http://www.liswiehlbooks.com/2014/11/legal-lis-homeowners-association-battles-with-an-elderly-veteran-over-a-flagpole/ http://www.liswiehlbooks.com/2014/11/legal-lis-homeowners-association-battles-with-an-elderly-veteran-over-a-flagpole/#comments Mon, 03 Nov 2014 14:37:16 +0000 http://www.liswiehlbooks.com/?p=1354 Lis

An 82-year-old man and his wife have recently been fielding letters from their homeowners association related to the flagpole they have in their front yard. The couple was first told in September that their flagpole should be removed from the front yard because it was not mounted to their home. But Bob Willits, who served four years during the Korean War, and his wife, Judy, are fighting the requests from the Fieldstone Homeowners Association. At first blush, it’s hard for me to imagine why a homeowners association would be so set on fighting a flagpole. As far as I can tell, it isn’t blocking a public sidewalk, it’s not endangering people in the neighborhood, and there’s nothing obscene of offensive being flown from the flagpole. No, it’s seems to be just two people intent on expressing their patriotism. Beyond this, though, there’s also the fact that there’s something called the Freedom to Display the American Flag Act of 2005, which intends to prevent the likes of a homeowners association from restricting homeowners when it comes to displaying the U.S. flag on their property. For the legally inclined, here’s the text of the American Flag Act:
SECTION 1. SHORT TITLE. This Act may be cited as the `Freedom to Display the American Flag Act of 2005'. SEC. 2. DEFINITIONS. For purposes of this Act-- 1. the term `flag of the United States' has the meaning given the term `flag, standard, colors, or ensign' under section 3 of title 4, United States Code; 2. the terms `condominium association' and `cooperative association' have the meanings given such terms under section 604 of Public Law 96-399 (15 U.S.C. 3603); 3. the term `residential real estate management association' has the meaning given such term under section 528 of the Internal Revenue Code of 1986 (26 U.S.C. 528); and 4. the term `member'--
(A) as used with respect to a condominium association, means an owner of a condominium unit (as defined under section 604 of Public Law 96-399 (15 U.S.C. 3603)) within such association; (B) as used with respect to a cooperative association, means a cooperative unit owner (as defined under section 604 of Public Law 96-399 (15 U.S.C. 3603)) within such association; and (C) as used with respect to a residential real estate management association, means an owner of a residential property within a subdivision, development, or similar area subject to any policy or restriction adopted by such association.
 SEC. 3. RIGHT TO DISPLAY THE FLAG OF THE UNITED STATES. A condominium association, cooperative association, or residential real estate management association may not adopt or enforce any policy, or enter into any agreement, that would restrict or prevent a member of the association from displaying the flag of the United States on residential property within the association with respect to which such member has a separate ownership interest or a right to exclusive possession or use. SEC. 4. LIMITATIONS. Nothing in this Act shall be considered to permit any display or use that is inconsistent with-- 1. any provision of chapter 1 of title 4, United States Code, or any rule or custom pertaining to the proper display or use of the flag of the United States (as established pursuant to such chapter or any otherwise applicable provision of law); or 2. any reasonable restriction pertaining to the time, place, or manner of displaying the flag of the United States necessary to protect a substantial interest of the condominium association, cooperative association, or residential real estate management association.
According to the homeowners association, it has authority to request the removal of the flagpole under Section 4, Part 2. Evidently, it believes that it has a substantial interest in restricting the “time, place, or manner” of the Willits’ flagpole. What do you think? Does the Homeowners Association have the right to make this request? Is there a substantial interest? Hear my thoughts on the Legal Lis podcast: http://foxrad.io/1zKC1Jn ]]>
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Legal Lis Podcast: Thomas Eric Duncan’s Family Eyes Lawsuit http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-thomas-eric-duncans-family-eyes-lawsuit/ http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-thomas-eric-duncans-family-eyes-lawsuit/#comments Fri, 17 Oct 2014 21:17:45 +0000 http://www.liswiehlbooks.com/?p=1347 TD

No doubt you’ve heard of Thomas Duncan, that he was the first person to be diagnosed with Ebola on United States soil, and that he died from the disease on October 8, 2014 at Texas Health Presbyterian Hospital. There’s certainly more to the story, though, like the suggestion that he lied to airport screeners in Liberia in order to come to the United States. What’s known is that he helped a pregnant woman in Liberia who was infected with Ebola. What some say is not so clear is whether or not he had reason to believe he might be infected when he boarded a plane to come the U.S. Another huge part of the story is what happened once he got here. He went to Texas Health Presbyterian Hospital with a fever shortly after arriving from Liberia. The story goes that he mentioned that he had been to Liberia but that information was not properly relayed to the appropriate people. And so, he was sent home with some antibiotics. Two days later, he returned to the hospital in an ambulance and this time, proper precautions were taken and he was isolated. Shortly thereafter, he died. So far, two of the nurses involved in the treatment of Duncan have been diagnosed with Ebola. And many others are being monitored. The short of it is that Ebola is not just a story we observe from afar anymore. It’s here, in our own backyard, so to speak. And now, there is talk of a lawsuit brought by Duncan’s family against the hospital related to his treatment. So what we’re talking about is a potential medical malpractice lawsuit. In general, medical malpractice occurs when a doctor or medical professional fails to competently perform his or her duties. In other words, the doctor or medical professional was negligent in relation to his or her treatment of a patient. In Texas, the statute related to medical malpractice sets an extremely high bar when it comes to proving that there was medical malpractice. For the mildly curious, the gist of the law is that it must be proven that doctors were “wilfully or wantonly negligent.” For the extremely curious, the laws says the following:
Sec. 74.151. LIABILITY FOR EMERGENCY CARE (a) A person who in good faith administers emergency care is not liable in civil damages for an act performed during the emergency unless the act is wilfully or wantonly negligent, including a person who:

(1) administers emergency care using an automated external defibrillator; or

(2) administers emergency care as a volunteer who is a first responder as the term is defined under Section 421.095, Government Code.

(b) This section does not apply to care administered:

(1) for or in expectation of remuneration, provided that being legally entitled to receive remuneration for the emergency care rendered shall not determine whether or not the care was administered for or in anticipation of remuneration; or

(2) by a person who was at the scene of the emergency because he or a person he represents as an agent was soliciting business or seeking to perform a service for remuneration.

(c), (d) Deleted by Acts 2003, 78th Leg., ch. 204, Sec. 10.01. (e) Except as provided by this subsection, this section does not apply to a person whose negligent act or omission was a producing cause of the emergency for which care is being administered. This subsection does not apply to liability of a school district or district school officer or employee arising from an act or omission under a program or policy or procedure adopted under Subchapter O-1, Chapter 161, Health and Safety Code, other than liability arising from wilful or intentional misconduct.
So, are we talking about doctors and medical professionals who were “wilfully and wantonly” negligent? Yes, Duncan was initially released from the hospital with a fever of 103 and had relayed the fact that he had been in Liberia. Yes, the hospital made a few missteps. But, under Texas law, it’s going to be a really tough case to prove. What are your thoughts on Thomas Duncan and the possibility of a lawsuit brought by his family? You can hear more of my thoughts on the Legal Lis podcast: foxrad.io/1w3mnns ]]>
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Legal Lis Podcast: The Supreme Court Denies All Same-Sex Marriage Petitions http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-the-supreme-court-denies-all-same-sex-marriage-petitions/ http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-the-supreme-court-denies-all-same-sex-marriage-petitions/#comments Fri, 10 Oct 2014 18:35:47 +0000 http://www.liswiehlbooks.com/?p=1342 SC

This week, the Supreme Court denied all seven petitions related to same-sex marriage, which may or may not come as a shock to you. You are likely to recall that in June 2013, in United States v. Windsor, the Supreme Court struck down Section 3 of the federal Defense of Marriage Act, which had defined “marriage” as a union between a man and a woman. This five-to-four decision meant that same-sex couples who were married in states where same-sex marriage was legal would have the same rights as other married couples when it came to things like, say, filing joint federal tax returns. After the Windsor case, we all knew that the same-sex marriage issue would be back in the Supreme Court. We also knew that the Court was not completely opposed to addressing the issue. So you wouldn't be totally off-base in assuming that the Supreme Court would take on at least one of these seven petitions. But, if you were really tuning in, the denial of the petitions is not all that surprising. For instance, recently, Justice Ruth Bader Ginsburg suggested that the Court might not take on the current issue because there was no disagreement among the lower courts at this point. And it seems as though her prediction was correct. But the fact that the Supreme Court has denied these petitions does not mean that there are not huge effects, so it's important to understand these cases and know what to expect in the future. To begin with, let’s look at the seven petitions the Court denied:
  • Baskin v. Bogan (Indiana): This case challenged the state's denial of marriage rights to same-sex couples. It was filed in federal district court on March 12, 2014 where Chief Judge Richard Young found for the plaintiffs. A three-judge panel of the U.S. Court of Appeals for the Seventh Circuit upheld the district court ruling in a unanimous decision on September 4. Both parties asked the Supreme Court to consider the case.
  • Walker v. Wolf (Wisconsin): This is federal lawsuit filed in February 2014 that challenged Wisconsin's refusal to grant marriage licenses to same-sex couples. In June 2014, Judge Barbara Crabb of the U.S. District Court for the Western District of Wisconsin ruled for the plaintiffs. The state appealed her decision to the Seventh Circuit Court of Appeals, which affirmed her opinion in a unanimous decision on September 4. Wisconsin asked the Supreme Court to consider the case.
  • Herbert v. Kitchen (Utah): A federal case that challenged Utah's constitutional ban on marriage for same-sex couples. Three same-sex couples filed suit in March 2013. In December 2013, the U.S. District Court for the District of Utah found the state's ban on same-sex marriage unconstitutional. In June 2014, the Tenth Circuit Court of Appeals affirmed the decision of the district court. All parties supported review by the Supreme Court.
  • McQuigg v. Bostic, Rainey v. Bostic, Schaefer v. Bostic (Virginia): A group of same-sex couples in Virginia filed suit to challenge the state’s refusal to acknowledge same-sex marriages. The Fourth Circuit Court of Appeals ruled for the plaintiffs and the case went to the Supreme Court for consideration.
  • Smith v. Bishop (Oklahoma): Two same-sex couples challenged Oklahoma's ban on same-sex marriage. In January 2014, U.S. District Court Judge Terence Kern ruled that Oklahoma's ban on same-sex marriage was unconstitutional. The Tenth Circuit Court of Appeals affirmed.
In the coming days and weeks, you can expect that same-sex marriages will be permitted when existing lower-court rulings against state bans go into effect in Indiana, Wisconsin, Utah, Virginia, and Oklahoma. Also, when the court of appeals rulings are implemented, same-sex marriages can occur in North Carolina, South Carolina and West Virginia (Fourth Circuit) and in Colorado, Kansas, and Wyoming (Tenth Circuit). And finally, four other circuits – the Fifth, Sixth, Ninth, and Eleventh – are currently considering the constitutionality of same-sex marriages. And these circuits could make decisions based on how they interpret what the Supreme Court did. Needless to say, denying the petitions has had and will have a resounding impact. You can hear my thoughts on this topic on the Legal Lis podcast: foxrad.io/1v2H4St ]]>
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Legal Lis Podcast: Is Alton Nolen a Terrorist? http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-is-alton-nolen-a-terrorist/ http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-is-alton-nolen-a-terrorist/#comments Fri, 03 Oct 2014 17:48:29 +0000 http://www.liswiehlbooks.com/?p=1337 LL

Colleen Hufford was beheaded by 30- year-old Alton Nolen during a gruesome attack at a Vaughan Foods plant in Oklahoma. Nolen was also able to repeatedly stab another victim, Traci Johnson, before he was shot by the company's CEO, Mark Vaughan, who is also a reserve deputy sheriff. Nolen had been suspended from the company just before he went into Vaughan’s administrative office and attacked the women. Cleveland County prosecutor Greg Mashburn said on Tuesday, 09/30/14, that Nolen will be charged with first-degree murder as well as assault charges. The good news is that first-degree murder in Oklahoma can result in the death penalty. And it’s not unlikely that this would be Nolen’s fate. But some aren’t satisfied, saying that Nolen is a terrorist and should be charged as such. Before I voiced an opinion one way or the other, I wanted to do a little digging of my own. In essence, I wanted a list of all of the things that point to charging Nolen as a terrorist. Here’s what I’ve come up with:
  • Nolen recently converted to Islam and reportedly tried to convert co-workers to Islam.
  • Nolen used Arabic terms during his attack.
  • On his Facebook account, Nolen posted photos of Osama bin Laden, other jihadis, and the Twin Towers burning.
  • His Facebook account also included a very graphic photo of a beheaded victim.
  • He reportedly wrote the following on his Facebook: "She (the Statue of Liberty) is going into flames. She and anybody who's with her."
  • He posted photos of a woman being flogged with the words "Islam will dominate the world. Freedom can go to hell."
  • There are some reports that Suhaib Webb, an imam with known ties to former Al Qaeda mastermind Anwar al Awlaki, appears to have influenced the life of Alton Nolen. Webb, who was once the leader of the Islamic Society of Greater Oklahoma City, now serves as an imam at a mosque in Boston once attended by accused Boston Marathon bombers Dzhokhar and Tamerlan Tsarnaev.
  • Possibly copying ISIS: ISIS has posted for all to see the beheadings of James Foley, Steven Sotloff, and David Haines. This gives terrorists inspiration to copy. It could be that Nolen was acting as a so-called “lone wolf”. Just last week, an ISIS leader, Abu Muhammad al-Adnani, released a recorded speech directed toward "lone wolf" operations and encouraging terrorists to act. "Do not ask for anyone's advice and do not seek anyone's verdict, kill the infidel whether he is civilian or military."
No one factor on its own necessarily spells terrorist, but when combined, you definitely have to wonder. Do you have anything else you think should be added to the list? And do you think Alton Nolen is a terrorist? You can hear my thoughts on how Nolen should be charged on the Legal Lis podcast: foxrad.io/1pGfa6P ]]>
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Legal Lis Podcast: Ray Rice and Double Jeopardy http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-ray-rice-and-double-jeopardy/ http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-ray-rice-and-double-jeopardy/#comments Fri, 26 Sep 2014 20:07:15 +0000 http://www.liswiehlbooks.com/?p=1329 RR Unless you’ve successfully avoided all types of news and gossip lately, you’ve heard about Ray Rice’s recent scandal. What’s more, you’ve probably seen the tragic video in which he punched his then-fiancé, knocking her out, and then dragged her out of an elevator. For Ray Rice – and the NFL – the release of the video footage changed everything. Seeing what he did somehow makes it more despicable, if that’s possible. Seeing it as a video outrages us and incites us to question the NFL. And seeing that video gives us something palpable to arm ourselves with when deciding how we feel about the situation. No doubt about it, Ray Rice should not be given the opportunity to play professional football again. But, legally, it’s not so clear. The first thing to understand is that NFL’s collective bargaining agreement does not have a so-called “double jeopardy” provision. What is does have is Article 46, Section 4, which states that a player cannot be disciplined twice “for the same act or conduct.” The importance of this provision really hinges on when the powers that be at the NFL had and knew about the video showing the assault. There are allegations that the surveillance video of Rice’s assault was sent to league security chief Jeffry Miller in April. There is also talk that there is a voicemail from league offices confirming receipt of said video on April 9. If this is true, then when Ray Rice was punished with a two-game suspension, that should have been the end of it. If NFL officials had already seen the video, then they knew all there was to know and had somehow decided that a two-game suspension was enough of a punishment. Under this version, you’d have to assume that once the video was leaked to the masses, the NFL reacted with an indefinite suspension to nullify the outrage. The problem here is that the two-game suspension was punishment number one. And because of Article 46, Section 4, Rice can’t be punished again for the same act or conduct. On the other hand, you have Miller saying, "I unequivocally deny that I received at any time a copy of the video and I had not watched it until it was made public on September 8.” And NFL Commissioner Roger Goodell has publicly said several times that no one in his office viewed the video until TMZ posted it on its website in September. If this is the truth, then the video brought new information to the table, and so it might be appropriate to revise the two-game suspension. Eventually, the truth will come out. We will know one way or another exactly when Goodell and company knew of the video. And this truth will likely have a huge impact on Rice’s future as a player. Which version of the story do you believe? Do you think people within the NFL saw the video before giving Rice his first punishment? Hear my thoughts in the latest Legal Lis podcast: foxrad.io/1pjtSAK ]]> http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-ray-rice-and-double-jeopardy/feed/ 1 Legal Lis Podcast: The Adrian Peterson Child Injury Case http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-the-adrian-peterson-child-injury-case/ http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-the-adrian-peterson-child-injury-case/#comments Thu, 18 Sep 2014 16:18:23 +0000 http://www.liswiehlbooks.com/?p=1319 Untitled1 In this week’s Legal Lis, one of the subjects I discussed was the recent issue involving Adrian Peterson and his method of disciplining his child. If you haven’t heard much on this story, the basic facts are as follows: Peterson, who plays for the Minnesota Vikings, has been indicted by a Texas grand jury for beating his four-year-old son with a “switch.” The incident occurred in May in Spring, Texas following an argument between Peterson’s son and another child over a video game. Peterson chalked it up to his style of parenting, simply a way to discipline his son, but the extensive injuries piqued the interest of law enforcement. According to reports and photos from the Houston Police Department, Peterson’s son received visible cuts and bruises to his back, buttocks, legs, hands and even scrotum. Because of the severity of the injuries, Peterson now faces charges of injury to a child. This case inevitably makes you wonder: To what extent should parents be permitted to discipline their children as they see fit? The emotional response is oftentimes that a parent should have a lot of freedom in doing just that, parenting. Some parents spank, some use timeouts, others take things away – each parent has a different way of enforcing rules and setting boundaries. And parents should have that right. You could argue all day that one way is better than the next, but in the end, a parent is going to raise their children (hopefully) in the way they think will result in kids who respect others and who recognize boundaries. I know good parents who spank and I know good parents who would never discipline physically – and neither method is necessarily better or worse than the other. But a problem arises when the fine line between spanking to discipline and actually beating a child is blurred. And when that line is blurred or crossed, that is precisely where the legal side of things comes in. For the most part, states tend to agree that a parent should be able to discipline a child - to a certain extent - as he or she sees fit. For example, here in New York, a “parent, guardian or other person entrusted with the care and supervision of a person under the age of twenty-one……may use physical force, but not deadly physical force, upon such person when and to the extent that he reasonably believes it necessary to maintain discipline or to promote the welfare of such person.”  And a New York court recently held that when a father spanked his child with an open hand in order to discipline the child, this was a “reasonable use of force.” A four-judge panel ruled in the unanimous decision that, “the father’s open-handed spanking of the child as a form of discipline after he heard the child curse at an adult was a reasonable use of force and, under the circumstances presented here, did not constitute excessive corporal punishment.” In California, “’serious physical harm’ does not include reasonable and age-appropriate spanking to the buttocks where there is no evidence of serious physical injury.”  And a court has recently found that a California mother who used a wooden spoon to spank her 12-year-old was not a child abuser. Laws and cases all across the U.S. support the notion that a parent can discipline their children when it’s reasonable. So what’s the big deal with Adrian Peterson? Well, primarily, it’s that his method of discipline was pretty extreme. Some would argue that the punishment went well beyond just plain maintaining discipline. The law in Texas is pretty lenient when it comes to parental discipline, stating that “the use of force, but not deadly force, against a child younger than 18 years is justified: (1) if the actor is the child's parent or stepparent or is acting in loco parentis to the child; and (2) when and to the degree the actor reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare.​” But that doesn’t mean a parent can beat a child in Texas without breaking the law. What this law clearly does is leave a lot of room for parents to decide how to discipline. What it does not do is allow a parent to beat a child and say it’s in the name of discipline after the fact. The fact that a second grand jury has indicted Peterson on a child-injury charge indicates that at least some believe he went beyond what the law allows. But Peterson maintains that his conduct was reasonable. What do you think? You can hear more of my thoughts on this issue on the Legal Lis podcast: http://foxrad.io/1pjtSAK ]]> http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-the-adrian-peterson-child-injury-case/feed/ 2 Legal Lis Podcast: Celebrity Nude Photo Hack and California’s New “Yes-Means-Yes” Bill http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-celebrity-nude-photo-hack-and-californias-new-yes-means-yes-bill/ http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-celebrity-nude-photo-hack-and-californias-new-yes-means-yes-bill/#comments Thu, 04 Sep 2014 18:22:41 +0000 http://www.liswiehlbooks.com/?p=1303 LL

In this week’s Legal Lis, I discussed many of the legal aspects related to the recently leaked nude photos of Jennifer Lawrence and other celebrities. I also talked about California’s new “Yes-Means-Yes” bill, which is related to sexual assault on college campuses. Below, I’ve included some of the legal issues that arise from these two topics as well as my thoughts. If you want to hear the full discussion, you can now listen to the Legal Lis podcast here: http://foxrad.io/1oDQawL Celebrity Nude Photo Hack: It’s hard to feel safe on the Internet. With all the hacking going on, it’s almost impossible for a person to expect that private information will, in fact, remain private. Identity theft, stolen credit card info, leaked photos, hacked emails – you don’t have to look too far to find a story that involves at least one of these issues. Enter the latest story in which several celebrities had private photos stolen and leaked to the masses. Some argue that these celebrities shouldn’t be surprised. If you have nude photos stored somewhere on the Internet, you’re exposing yourself to the possibility that these photos will end up in the wrong hands. Others think that when a person sends an intimate photo to a significant other or spouse or friend – in some way that’s intended to remain private – you should be able to expect that those photos will remain private. No matter which way you lean on this issue, there are laws that apply. One issue that has to be discussed related to this leak is what kind of liability there is for Twitter, Facebook and other sites that have or had links to the photos. Legally, the truth is that there is not much liability. Section 230 of the Communications Decency Act is a federal law that creates a lot of protection for providers of an “interactive computer service.” In fact, the law states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Case law testing the immunity of Internet service providers under Section 230 almost always goes the way of no liability. For example, in one case, the Fourth Circuit Court of Appeals found that “lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions — such as deciding whether to publish, withdraw, postpone or alter content — are barred.” The decision goes on to point out that “Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum.” This is just one of the issues that arise from the recent photo hack. You can hear more – including discussion on revenge porn and punishment for the people who actually do the hacking – on the Legal Lis podcast. What do you think: Should we expect privacy on the Internet? Should Twitter and the like be held liable? California’s “Yes-Means-Yes” Bill  The so-called “yes-means-yes” bill, which was passed unanimously by the California State Senate, would require universities in CA to adopt a standard of unambiguous consent from all parties engaging in sexual activity. The bill defines affirmative consent as an “affirmative, conscious, and voluntary agreement to engage in sexual activity” and goes on to state that it “is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity.” That someone doesn’t protest or resist does not equal consent. Neither does silence. The goal of the bill is to prevent sexual assault on campus. And with the White House reporting that 1 in 5 female college students is sexually assaulted while in college, this is a laudable and necessary goal. But some aren’t convinced the bill will achieve its goals, arguing that people who don’t get an explicit “yes” before sex will be deemed rapists even though there was, say, nonverbal affirmation. What are your thoughts: Do you think this bill is a good idea? Can it achieve its goals?   I hope you enjoy the new podcast! Every Thursday from now on, a Legal Lis podcast will be made available so you can listen to the topics I'm discussing.              ]]>
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Q&A on Police Brutality, Part II http://www.liswiehlbooks.com/2014/12/legal-lis-brown-family-lawyer-will-pursue-every-legal-avenue/ http://www.liswiehlbooks.com/2014/12/legal-lis-brown-family-lawyer-will-pursue-every-legal-avenue/#comments Fri, 05 Dec 2014 20:33:14 +0000 http://www.liswiehlbooks.com/?p=1367 LW

Even though a grand jury has decided not to indict Darren Wilson for the shooting of Michael Brown, that does not mean that Wilson’s time in court is over. It’s still possible that there will be federal charges, and then there’s the chance of a civil suit brought by Brown’s family. The lawyer for the Brown family recently announced that they would pursue “every legal avenue” available to them. One thing this likely means is a wrongful death suit. Missouri’s law on wrongful death says the following:
537.080. 1. Whenever the death of a person results from any act, conduct, occurrence, transaction, or circumstance which, if death had not ensued, would have entitled such person to recover damages in respect thereof, the person or party who, or the corporation which, would have been liable if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured, which damages may be sued for: (1) By the spouse or children or the surviving lineal descendants of any deceased children, natural or adopted, legitimate or illegitimate, or by the father or mother of the deceased, natural or adoptive; (2) If there be no persons in class (1) entitled to bring the action, then by the brother or sister of the deceased, or their descendants, who can establish his or her right to those damages set out in section 537.090 because of the death; (3) If there be no persons in class (1) or (2) entitled to bring the action, then by a plaintiff ad litem. Such plaintiff ad litem shall be appointed by the court having jurisdiction over the action for damages provided in this section upon application of some person entitled to share in the proceeds of such action. Such plaintiff ad litem shall be some suitable person competent to prosecute such action and whose appointment is requested on behalf of those persons entitled to share in the proceeds of such action. Such court may, in its discretion, require that such plaintiff ad litem give bond for the faithful performance of his duties.
In short, this means a wrongful death claim can be brought against a person whose negligent or intentional actions caused the death of another person. And to win a wrongful death suit, the Brown family has a much lighter burden than there would have been in a criminal case. In general, crimes must be proven beyond a reasonable doubt. In a civil wrongful death suit, though, the standard of proof is a preponderance of evidence, which basically just means that it is more likely than not that a certain thing happened. In a wrongful death suit against Darren Wilson, it would have to be shown that it is more likely than not that Wilson’s actions were responsible for Michael Brown’s death. Many watched as Prosecuting Attorney Bob McCulloch announced that there would be no indictment for Darren Wilson. We also saw the outraged reactions from protestors in and around Ferguson, Missouri. Then came Wilson’s resignation from the Ferguson Police Department. What’s next in this story has yet to be determined, but it would not be a shock to hear that the Brown family is moving forward with a wrongful death suit. What are your thoughts on the subject? Hear mine on the latest Legal Lis podcast: foxrad.io/1BdNfpQ ]]>
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Lis Wiehl Books http://www.liswiehlbooks.com FOX News Legal Analyst and Author Fri, 05 Dec 2014 20:34:01 +0000 en-US hourly 1 http://wordpress.org/?v=3.9.3 Legal Lis: Brown Family Lawyer Will Pursue “Every Legal Avenue” http://www.liswiehlbooks.com/2014/12/legal-lis-brown-family-lawyer-will-pursue-every-legal-avenue/ http://www.liswiehlbooks.com/2014/12/legal-lis-brown-family-lawyer-will-pursue-every-legal-avenue/#comments Fri, 05 Dec 2014 20:33:14 +0000 http://www.liswiehlbooks.com/?p=1367 LW

Even though a grand jury has decided not to indict Darren Wilson for the shooting of Michael Brown, that does not mean that Wilson’s time in court is over. It’s still possible that there will be federal charges, and then there’s the chance of a civil suit brought by Brown’s family. The lawyer for the Brown family recently announced that they would pursue “every legal avenue” available to them. One thing this likely means is a wrongful death suit. Missouri’s law on wrongful death says the following:
537.080. 1. Whenever the death of a person results from any act, conduct, occurrence, transaction, or circumstance which, if death had not ensued, would have entitled such person to recover damages in respect thereof, the person or party who, or the corporation which, would have been liable if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured, which damages may be sued for: (1) By the spouse or children or the surviving lineal descendants of any deceased children, natural or adopted, legitimate or illegitimate, or by the father or mother of the deceased, natural or adoptive; (2) If there be no persons in class (1) entitled to bring the action, then by the brother or sister of the deceased, or their descendants, who can establish his or her right to those damages set out in section 537.090 because of the death; (3) If there be no persons in class (1) or (2) entitled to bring the action, then by a plaintiff ad litem. Such plaintiff ad litem shall be appointed by the court having jurisdiction over the action for damages provided in this section upon application of some person entitled to share in the proceeds of such action. Such plaintiff ad litem shall be some suitable person competent to prosecute such action and whose appointment is requested on behalf of those persons entitled to share in the proceeds of such action. Such court may, in its discretion, require that such plaintiff ad litem give bond for the faithful performance of his duties.
In short, this means a wrongful death claim can be brought against a person whose negligent or intentional actions caused the death of another person. And to win a wrongful death suit, the Brown family has a much lighter burden than there would have been in a criminal case. In general, crimes must be proven beyond a reasonable doubt. In a civil wrongful death suit, though, the standard of proof is a preponderance of evidence, which basically just means that it is more likely than not that a certain thing happened. In a wrongful death suit against Darren Wilson, it would have to be shown that it is more likely than not that Wilson’s actions were responsible for Michael Brown’s death. Many watched as Prosecuting Attorney Bob McCulloch announced that there would be no indictment for Darren Wilson. We also saw the outraged reactions from protestors in and around Ferguson, Missouri. Then came Wilson’s resignation from the Ferguson Police Department. What’s next in this story has yet to be determined, but it would not be a shock to hear that the Brown family is moving forward with a wrongful death suit. What are your thoughts on the subject? Hear mine on the latest Legal Lis podcast: foxrad.io/1BdNfpQ ]]>
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Legal Lis: Delta Offers 0 Credit to Owner for Lost Dog http://www.liswiehlbooks.com/2014/11/legal-lis-delta-offers-200-credit-to-owner-for-lost-dog/ http://www.liswiehlbooks.com/2014/11/legal-lis-delta-offers-200-credit-to-owner-for-lost-dog/#comments Fri, 14 Nov 2014 20:04:09 +0000 http://www.liswiehlbooks.com/?p=1361 delta   Every time you fly, if you check your bags, you have to trust someone else to take care of and deliver your possessions. I always get more than just a little anxious at the thought of handing over clothes and the like, because a lot can go wrong. Things can be damaged, your bag can get lost, you miss a connection and the bag goes one way while you're stuck somewhere else. The possibilities are all but endless. As much as I dread the thought of losing my things, in the end, they are just things. In the grand scheme of traveling, having your bag lost or misplaced isn’t the end of the world. But what if, instead of your suitcase filled to the brim with possessions, an airline lost your dog? This is what happened to one recent traveler. Frank Romano boarded a Delta flight from California to Florida after handing over his pit bull, Ty, to travel in a kennel. Before the flight left, though, Frank was told that Ty had chewed his way out of the kennel and was lost. Delta claims to be doing all things possible to find Ty and the airline has offered Frank a 0 credit for future travel. No, that is not a typographical error. A dog is missing and Delta has offered only 0 in consolation. How can this be? Is Delta liable for the loss of the dog? If so, for how much? These are all the questions that flooded my head as I read about Frank and Ty. If you’re just as curious, here are a few answers:
  • Yes, airlines are liable for lost or damaged baggage, which includes a dog. Airlines limit their liability and must meet a minimum that is set by the federal government. Currently, the minimum dollar amount airlines can establish to compensate for lost, delayed and damaged baggage on domestic flights is ,400.
  • A quick check of Delta's policy on baggage liability reveals that the airline has gone with the minimum.
  • Passengers may declare a higher value for their baggage, making an airline liable for more than the minimum, but said passenger must do so before the flight and must pay a fee.
  • A passenger can challenge the liability limit. In general, though, as long as the passenger had notice of the limit and an opportunity to declare a higher value for that baggage, the limit will hold up in court.
As far as I can tell, Frank did not declare a higher value, so it looks like any liability for his missing dog would be capped at ,400. And case law has tended to stand by an airline's minimum liability. For example, in 1983, Thomas Deiro shipped nine racing greyhounds by air from Portland to Boston. During a layover in Dallas, the airline left the dogs in their cages in 97° heat. Seven of the dogs died, and two were injured. Deiro sued American Airlines for 0,000, but the court only awarded him 0, which was the liability limit at the time. The court reasoned that as an experienced traveler, Deiro should have declared a higher value for his dogs. In its decision, the court stated, "We find it difficult to imagine how any passenger with Deiro's experience, planning to check a quarter of a million dollars worth of baggage, could have had more opportunity or incentive to familiarize himself with the baggage liability provisions." In sum, airlines have a long and protected history in limiting their liability. Nevertheless, here’s hoping that Ty and Frank are reunited soon. You can hear more of my thoughts on this topic on the Legal Lis podcast: foxrad.io/1xhHHJd   ]]>
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Legal Lis: Homeowners Association Battles with an Elderly Veteran over a Flagpole http://www.liswiehlbooks.com/2014/11/legal-lis-homeowners-association-battles-with-an-elderly-veteran-over-a-flagpole/ http://www.liswiehlbooks.com/2014/11/legal-lis-homeowners-association-battles-with-an-elderly-veteran-over-a-flagpole/#comments Mon, 03 Nov 2014 14:37:16 +0000 http://www.liswiehlbooks.com/?p=1354 Lis

An 82-year-old man and his wife have recently been fielding letters from their homeowners association related to the flagpole they have in their front yard. The couple was first told in September that their flagpole should be removed from the front yard because it was not mounted to their home. But Bob Willits, who served four years during the Korean War, and his wife, Judy, are fighting the requests from the Fieldstone Homeowners Association. At first blush, it’s hard for me to imagine why a homeowners association would be so set on fighting a flagpole. As far as I can tell, it isn’t blocking a public sidewalk, it’s not endangering people in the neighborhood, and there’s nothing obscene of offensive being flown from the flagpole. No, it’s seems to be just two people intent on expressing their patriotism. Beyond this, though, there’s also the fact that there’s something called the Freedom to Display the American Flag Act of 2005, which intends to prevent the likes of a homeowners association from restricting homeowners when it comes to displaying the U.S. flag on their property. For the legally inclined, here’s the text of the American Flag Act:
SECTION 1. SHORT TITLE. This Act may be cited as the `Freedom to Display the American Flag Act of 2005'. SEC. 2. DEFINITIONS. For purposes of this Act-- 1. the term `flag of the United States' has the meaning given the term `flag, standard, colors, or ensign' under section 3 of title 4, United States Code; 2. the terms `condominium association' and `cooperative association' have the meanings given such terms under section 604 of Public Law 96-399 (15 U.S.C. 3603); 3. the term `residential real estate management association' has the meaning given such term under section 528 of the Internal Revenue Code of 1986 (26 U.S.C. 528); and 4. the term `member'--
(A) as used with respect to a condominium association, means an owner of a condominium unit (as defined under section 604 of Public Law 96-399 (15 U.S.C. 3603)) within such association; (B) as used with respect to a cooperative association, means a cooperative unit owner (as defined under section 604 of Public Law 96-399 (15 U.S.C. 3603)) within such association; and (C) as used with respect to a residential real estate management association, means an owner of a residential property within a subdivision, development, or similar area subject to any policy or restriction adopted by such association.
 SEC. 3. RIGHT TO DISPLAY THE FLAG OF THE UNITED STATES. A condominium association, cooperative association, or residential real estate management association may not adopt or enforce any policy, or enter into any agreement, that would restrict or prevent a member of the association from displaying the flag of the United States on residential property within the association with respect to which such member has a separate ownership interest or a right to exclusive possession or use. SEC. 4. LIMITATIONS. Nothing in this Act shall be considered to permit any display or use that is inconsistent with-- 1. any provision of chapter 1 of title 4, United States Code, or any rule or custom pertaining to the proper display or use of the flag of the United States (as established pursuant to such chapter or any otherwise applicable provision of law); or 2. any reasonable restriction pertaining to the time, place, or manner of displaying the flag of the United States necessary to protect a substantial interest of the condominium association, cooperative association, or residential real estate management association.
According to the homeowners association, it has authority to request the removal of the flagpole under Section 4, Part 2. Evidently, it believes that it has a substantial interest in restricting the “time, place, or manner” of the Willits’ flagpole. What do you think? Does the Homeowners Association have the right to make this request? Is there a substantial interest? Hear my thoughts on the Legal Lis podcast: http://foxrad.io/1zKC1Jn ]]>
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Legal Lis Podcast: Thomas Eric Duncan’s Family Eyes Lawsuit http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-thomas-eric-duncans-family-eyes-lawsuit/ http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-thomas-eric-duncans-family-eyes-lawsuit/#comments Fri, 17 Oct 2014 21:17:45 +0000 http://www.liswiehlbooks.com/?p=1347 TD

No doubt you’ve heard of Thomas Duncan, that he was the first person to be diagnosed with Ebola on United States soil, and that he died from the disease on October 8, 2014 at Texas Health Presbyterian Hospital. There’s certainly more to the story, though, like the suggestion that he lied to airport screeners in Liberia in order to come to the United States. What’s known is that he helped a pregnant woman in Liberia who was infected with Ebola. What some say is not so clear is whether or not he had reason to believe he might be infected when he boarded a plane to come the U.S. Another huge part of the story is what happened once he got here. He went to Texas Health Presbyterian Hospital with a fever shortly after arriving from Liberia. The story goes that he mentioned that he had been to Liberia but that information was not properly relayed to the appropriate people. And so, he was sent home with some antibiotics. Two days later, he returned to the hospital in an ambulance and this time, proper precautions were taken and he was isolated. Shortly thereafter, he died. So far, two of the nurses involved in the treatment of Duncan have been diagnosed with Ebola. And many others are being monitored. The short of it is that Ebola is not just a story we observe from afar anymore. It’s here, in our own backyard, so to speak. And now, there is talk of a lawsuit brought by Duncan’s family against the hospital related to his treatment. So what we’re talking about is a potential medical malpractice lawsuit. In general, medical malpractice occurs when a doctor or medical professional fails to competently perform his or her duties. In other words, the doctor or medical professional was negligent in relation to his or her treatment of a patient. In Texas, the statute related to medical malpractice sets an extremely high bar when it comes to proving that there was medical malpractice. For the mildly curious, the gist of the law is that it must be proven that doctors were “wilfully or wantonly negligent.” For the extremely curious, the laws says the following:
Sec. 74.151. LIABILITY FOR EMERGENCY CARE (a) A person who in good faith administers emergency care is not liable in civil damages for an act performed during the emergency unless the act is wilfully or wantonly negligent, including a person who:

(1) administers emergency care using an automated external defibrillator; or

(2) administers emergency care as a volunteer who is a first responder as the term is defined under Section 421.095, Government Code.

(b) This section does not apply to care administered:

(1) for or in expectation of remuneration, provided that being legally entitled to receive remuneration for the emergency care rendered shall not determine whether or not the care was administered for or in anticipation of remuneration; or

(2) by a person who was at the scene of the emergency because he or a person he represents as an agent was soliciting business or seeking to perform a service for remuneration.

(c), (d) Deleted by Acts 2003, 78th Leg., ch. 204, Sec. 10.01. (e) Except as provided by this subsection, this section does not apply to a person whose negligent act or omission was a producing cause of the emergency for which care is being administered. This subsection does not apply to liability of a school district or district school officer or employee arising from an act or omission under a program or policy or procedure adopted under Subchapter O-1, Chapter 161, Health and Safety Code, other than liability arising from wilful or intentional misconduct.
So, are we talking about doctors and medical professionals who were “wilfully and wantonly” negligent? Yes, Duncan was initially released from the hospital with a fever of 103 and had relayed the fact that he had been in Liberia. Yes, the hospital made a few missteps. But, under Texas law, it’s going to be a really tough case to prove. What are your thoughts on Thomas Duncan and the possibility of a lawsuit brought by his family? You can hear more of my thoughts on the Legal Lis podcast: foxrad.io/1w3mnns ]]>
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Legal Lis Podcast: The Supreme Court Denies All Same-Sex Marriage Petitions http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-the-supreme-court-denies-all-same-sex-marriage-petitions/ http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-the-supreme-court-denies-all-same-sex-marriage-petitions/#comments Fri, 10 Oct 2014 18:35:47 +0000 http://www.liswiehlbooks.com/?p=1342 SC

This week, the Supreme Court denied all seven petitions related to same-sex marriage, which may or may not come as a shock to you. You are likely to recall that in June 2013, in United States v. Windsor, the Supreme Court struck down Section 3 of the federal Defense of Marriage Act, which had defined “marriage” as a union between a man and a woman. This five-to-four decision meant that same-sex couples who were married in states where same-sex marriage was legal would have the same rights as other married couples when it came to things like, say, filing joint federal tax returns. After the Windsor case, we all knew that the same-sex marriage issue would be back in the Supreme Court. We also knew that the Court was not completely opposed to addressing the issue. So you wouldn't be totally off-base in assuming that the Supreme Court would take on at least one of these seven petitions. But, if you were really tuning in, the denial of the petitions is not all that surprising. For instance, recently, Justice Ruth Bader Ginsburg suggested that the Court might not take on the current issue because there was no disagreement among the lower courts at this point. And it seems as though her prediction was correct. But the fact that the Supreme Court has denied these petitions does not mean that there are not huge effects, so it's important to understand these cases and know what to expect in the future. To begin with, let’s look at the seven petitions the Court denied:
  • Baskin v. Bogan (Indiana): This case challenged the state's denial of marriage rights to same-sex couples. It was filed in federal district court on March 12, 2014 where Chief Judge Richard Young found for the plaintiffs. A three-judge panel of the U.S. Court of Appeals for the Seventh Circuit upheld the district court ruling in a unanimous decision on September 4. Both parties asked the Supreme Court to consider the case.
  • Walker v. Wolf (Wisconsin): This is federal lawsuit filed in February 2014 that challenged Wisconsin's refusal to grant marriage licenses to same-sex couples. In June 2014, Judge Barbara Crabb of the U.S. District Court for the Western District of Wisconsin ruled for the plaintiffs. The state appealed her decision to the Seventh Circuit Court of Appeals, which affirmed her opinion in a unanimous decision on September 4. Wisconsin asked the Supreme Court to consider the case.
  • Herbert v. Kitchen (Utah): A federal case that challenged Utah's constitutional ban on marriage for same-sex couples. Three same-sex couples filed suit in March 2013. In December 2013, the U.S. District Court for the District of Utah found the state's ban on same-sex marriage unconstitutional. In June 2014, the Tenth Circuit Court of Appeals affirmed the decision of the district court. All parties supported review by the Supreme Court.
  • McQuigg v. Bostic, Rainey v. Bostic, Schaefer v. Bostic (Virginia): A group of same-sex couples in Virginia filed suit to challenge the state’s refusal to acknowledge same-sex marriages. The Fourth Circuit Court of Appeals ruled for the plaintiffs and the case went to the Supreme Court for consideration.
  • Smith v. Bishop (Oklahoma): Two same-sex couples challenged Oklahoma's ban on same-sex marriage. In January 2014, U.S. District Court Judge Terence Kern ruled that Oklahoma's ban on same-sex marriage was unconstitutional. The Tenth Circuit Court of Appeals affirmed.
In the coming days and weeks, you can expect that same-sex marriages will be permitted when existing lower-court rulings against state bans go into effect in Indiana, Wisconsin, Utah, Virginia, and Oklahoma. Also, when the court of appeals rulings are implemented, same-sex marriages can occur in North Carolina, South Carolina and West Virginia (Fourth Circuit) and in Colorado, Kansas, and Wyoming (Tenth Circuit). And finally, four other circuits – the Fifth, Sixth, Ninth, and Eleventh – are currently considering the constitutionality of same-sex marriages. And these circuits could make decisions based on how they interpret what the Supreme Court did. Needless to say, denying the petitions has had and will have a resounding impact. You can hear my thoughts on this topic on the Legal Lis podcast: foxrad.io/1v2H4St ]]>
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Legal Lis Podcast: Is Alton Nolen a Terrorist? http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-is-alton-nolen-a-terrorist/ http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-is-alton-nolen-a-terrorist/#comments Fri, 03 Oct 2014 17:48:29 +0000 http://www.liswiehlbooks.com/?p=1337 LL

Colleen Hufford was beheaded by 30- year-old Alton Nolen during a gruesome attack at a Vaughan Foods plant in Oklahoma. Nolen was also able to repeatedly stab another victim, Traci Johnson, before he was shot by the company's CEO, Mark Vaughan, who is also a reserve deputy sheriff. Nolen had been suspended from the company just before he went into Vaughan’s administrative office and attacked the women. Cleveland County prosecutor Greg Mashburn said on Tuesday, 09/30/14, that Nolen will be charged with first-degree murder as well as assault charges. The good news is that first-degree murder in Oklahoma can result in the death penalty. And it’s not unlikely that this would be Nolen’s fate. But some aren’t satisfied, saying that Nolen is a terrorist and should be charged as such. Before I voiced an opinion one way or the other, I wanted to do a little digging of my own. In essence, I wanted a list of all of the things that point to charging Nolen as a terrorist. Here’s what I’ve come up with:
  • Nolen recently converted to Islam and reportedly tried to convert co-workers to Islam.
  • Nolen used Arabic terms during his attack.
  • On his Facebook account, Nolen posted photos of Osama bin Laden, other jihadis, and the Twin Towers burning.
  • His Facebook account also included a very graphic photo of a beheaded victim.
  • He reportedly wrote the following on his Facebook: "She (the Statue of Liberty) is going into flames. She and anybody who's with her."
  • He posted photos of a woman being flogged with the words "Islam will dominate the world. Freedom can go to hell."
  • There are some reports that Suhaib Webb, an imam with known ties to former Al Qaeda mastermind Anwar al Awlaki, appears to have influenced the life of Alton Nolen. Webb, who was once the leader of the Islamic Society of Greater Oklahoma City, now serves as an imam at a mosque in Boston once attended by accused Boston Marathon bombers Dzhokhar and Tamerlan Tsarnaev.
  • Possibly copying ISIS: ISIS has posted for all to see the beheadings of James Foley, Steven Sotloff, and David Haines. This gives terrorists inspiration to copy. It could be that Nolen was acting as a so-called “lone wolf”. Just last week, an ISIS leader, Abu Muhammad al-Adnani, released a recorded speech directed toward "lone wolf" operations and encouraging terrorists to act. "Do not ask for anyone's advice and do not seek anyone's verdict, kill the infidel whether he is civilian or military."
No one factor on its own necessarily spells terrorist, but when combined, you definitely have to wonder. Do you have anything else you think should be added to the list? And do you think Alton Nolen is a terrorist? You can hear my thoughts on how Nolen should be charged on the Legal Lis podcast: foxrad.io/1pGfa6P ]]>
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Legal Lis Podcast: Ray Rice and Double Jeopardy http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-ray-rice-and-double-jeopardy/ http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-ray-rice-and-double-jeopardy/#comments Fri, 26 Sep 2014 20:07:15 +0000 http://www.liswiehlbooks.com/?p=1329 RR Unless you’ve successfully avoided all types of news and gossip lately, you’ve heard about Ray Rice’s recent scandal. What’s more, you’ve probably seen the tragic video in which he punched his then-fiancé, knocking her out, and then dragged her out of an elevator. For Ray Rice – and the NFL – the release of the video footage changed everything. Seeing what he did somehow makes it more despicable, if that’s possible. Seeing it as a video outrages us and incites us to question the NFL. And seeing that video gives us something palpable to arm ourselves with when deciding how we feel about the situation. No doubt about it, Ray Rice should not be given the opportunity to play professional football again. But, legally, it’s not so clear. The first thing to understand is that NFL’s collective bargaining agreement does not have a so-called “double jeopardy” provision. What is does have is Article 46, Section 4, which states that a player cannot be disciplined twice “for the same act or conduct.” The importance of this provision really hinges on when the powers that be at the NFL had and knew about the video showing the assault. There are allegations that the surveillance video of Rice’s assault was sent to league security chief Jeffry Miller in April. There is also talk that there is a voicemail from league offices confirming receipt of said video on April 9. If this is true, then when Ray Rice was punished with a two-game suspension, that should have been the end of it. If NFL officials had already seen the video, then they knew all there was to know and had somehow decided that a two-game suspension was enough of a punishment. Under this version, you’d have to assume that once the video was leaked to the masses, the NFL reacted with an indefinite suspension to nullify the outrage. The problem here is that the two-game suspension was punishment number one. And because of Article 46, Section 4, Rice can’t be punished again for the same act or conduct. On the other hand, you have Miller saying, "I unequivocally deny that I received at any time a copy of the video and I had not watched it until it was made public on September 8.” And NFL Commissioner Roger Goodell has publicly said several times that no one in his office viewed the video until TMZ posted it on its website in September. If this is the truth, then the video brought new information to the table, and so it might be appropriate to revise the two-game suspension. Eventually, the truth will come out. We will know one way or another exactly when Goodell and company knew of the video. And this truth will likely have a huge impact on Rice’s future as a player. Which version of the story do you believe? Do you think people within the NFL saw the video before giving Rice his first punishment? Hear my thoughts in the latest Legal Lis podcast: foxrad.io/1pjtSAK ]]> http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-ray-rice-and-double-jeopardy/feed/ 1 Legal Lis Podcast: The Adrian Peterson Child Injury Case http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-the-adrian-peterson-child-injury-case/ http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-the-adrian-peterson-child-injury-case/#comments Thu, 18 Sep 2014 16:18:23 +0000 http://www.liswiehlbooks.com/?p=1319 Untitled1 In this week’s Legal Lis, one of the subjects I discussed was the recent issue involving Adrian Peterson and his method of disciplining his child. If you haven’t heard much on this story, the basic facts are as follows: Peterson, who plays for the Minnesota Vikings, has been indicted by a Texas grand jury for beating his four-year-old son with a “switch.” The incident occurred in May in Spring, Texas following an argument between Peterson’s son and another child over a video game. Peterson chalked it up to his style of parenting, simply a way to discipline his son, but the extensive injuries piqued the interest of law enforcement. According to reports and photos from the Houston Police Department, Peterson’s son received visible cuts and bruises to his back, buttocks, legs, hands and even scrotum. Because of the severity of the injuries, Peterson now faces charges of injury to a child. This case inevitably makes you wonder: To what extent should parents be permitted to discipline their children as they see fit? The emotional response is oftentimes that a parent should have a lot of freedom in doing just that, parenting. Some parents spank, some use timeouts, others take things away – each parent has a different way of enforcing rules and setting boundaries. And parents should have that right. You could argue all day that one way is better than the next, but in the end, a parent is going to raise their children (hopefully) in the way they think will result in kids who respect others and who recognize boundaries. I know good parents who spank and I know good parents who would never discipline physically – and neither method is necessarily better or worse than the other. But a problem arises when the fine line between spanking to discipline and actually beating a child is blurred. And when that line is blurred or crossed, that is precisely where the legal side of things comes in. For the most part, states tend to agree that a parent should be able to discipline a child - to a certain extent - as he or she sees fit. For example, here in New York, a “parent, guardian or other person entrusted with the care and supervision of a person under the age of twenty-one……may use physical force, but not deadly physical force, upon such person when and to the extent that he reasonably believes it necessary to maintain discipline or to promote the welfare of such person.”  And a New York court recently held that when a father spanked his child with an open hand in order to discipline the child, this was a “reasonable use of force.” A four-judge panel ruled in the unanimous decision that, “the father’s open-handed spanking of the child as a form of discipline after he heard the child curse at an adult was a reasonable use of force and, under the circumstances presented here, did not constitute excessive corporal punishment.” In California, “’serious physical harm’ does not include reasonable and age-appropriate spanking to the buttocks where there is no evidence of serious physical injury.”  And a court has recently found that a California mother who used a wooden spoon to spank her 12-year-old was not a child abuser. Laws and cases all across the U.S. support the notion that a parent can discipline their children when it’s reasonable. So what’s the big deal with Adrian Peterson? Well, primarily, it’s that his method of discipline was pretty extreme. Some would argue that the punishment went well beyond just plain maintaining discipline. The law in Texas is pretty lenient when it comes to parental discipline, stating that “the use of force, but not deadly force, against a child younger than 18 years is justified: (1) if the actor is the child's parent or stepparent or is acting in loco parentis to the child; and (2) when and to the degree the actor reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare.​” But that doesn’t mean a parent can beat a child in Texas without breaking the law. What this law clearly does is leave a lot of room for parents to decide how to discipline. What it does not do is allow a parent to beat a child and say it’s in the name of discipline after the fact. The fact that a second grand jury has indicted Peterson on a child-injury charge indicates that at least some believe he went beyond what the law allows. But Peterson maintains that his conduct was reasonable. What do you think? You can hear more of my thoughts on this issue on the Legal Lis podcast: http://foxrad.io/1pjtSAK ]]> http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-the-adrian-peterson-child-injury-case/feed/ 2 Legal Lis Podcast: Celebrity Nude Photo Hack and California’s New “Yes-Means-Yes” Bill http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-celebrity-nude-photo-hack-and-californias-new-yes-means-yes-bill/ http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-celebrity-nude-photo-hack-and-californias-new-yes-means-yes-bill/#comments Thu, 04 Sep 2014 18:22:41 +0000 http://www.liswiehlbooks.com/?p=1303 LL

In this week’s Legal Lis, I discussed many of the legal aspects related to the recently leaked nude photos of Jennifer Lawrence and other celebrities. I also talked about California’s new “Yes-Means-Yes” bill, which is related to sexual assault on college campuses. Below, I’ve included some of the legal issues that arise from these two topics as well as my thoughts. If you want to hear the full discussion, you can now listen to the Legal Lis podcast here: http://foxrad.io/1oDQawL Celebrity Nude Photo Hack: It’s hard to feel safe on the Internet. With all the hacking going on, it’s almost impossible for a person to expect that private information will, in fact, remain private. Identity theft, stolen credit card info, leaked photos, hacked emails – you don’t have to look too far to find a story that involves at least one of these issues. Enter the latest story in which several celebrities had private photos stolen and leaked to the masses. Some argue that these celebrities shouldn’t be surprised. If you have nude photos stored somewhere on the Internet, you’re exposing yourself to the possibility that these photos will end up in the wrong hands. Others think that when a person sends an intimate photo to a significant other or spouse or friend – in some way that’s intended to remain private – you should be able to expect that those photos will remain private. No matter which way you lean on this issue, there are laws that apply. One issue that has to be discussed related to this leak is what kind of liability there is for Twitter, Facebook and other sites that have or had links to the photos. Legally, the truth is that there is not much liability. Section 230 of the Communications Decency Act is a federal law that creates a lot of protection for providers of an “interactive computer service.” In fact, the law states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Case law testing the immunity of Internet service providers under Section 230 almost always goes the way of no liability. For example, in one case, the Fourth Circuit Court of Appeals found that “lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions — such as deciding whether to publish, withdraw, postpone or alter content — are barred.” The decision goes on to point out that “Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum.” This is just one of the issues that arise from the recent photo hack. You can hear more – including discussion on revenge porn and punishment for the people who actually do the hacking – on the Legal Lis podcast. What do you think: Should we expect privacy on the Internet? Should Twitter and the like be held liable? California’s “Yes-Means-Yes” Bill  The so-called “yes-means-yes” bill, which was passed unanimously by the California State Senate, would require universities in CA to adopt a standard of unambiguous consent from all parties engaging in sexual activity. The bill defines affirmative consent as an “affirmative, conscious, and voluntary agreement to engage in sexual activity” and goes on to state that it “is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity.” That someone doesn’t protest or resist does not equal consent. Neither does silence. The goal of the bill is to prevent sexual assault on campus. And with the White House reporting that 1 in 5 female college students is sexually assaulted while in college, this is a laudable and necessary goal. But some aren’t convinced the bill will achieve its goals, arguing that people who don’t get an explicit “yes” before sex will be deemed rapists even though there was, say, nonverbal affirmation. What are your thoughts: Do you think this bill is a good idea? Can it achieve its goals?   I hope you enjoy the new podcast! Every Thursday from now on, a Legal Lis podcast will be made available so you can listen to the topics I'm discussing.              ]]>
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Q&A on Police Brutality, Part II http://www.liswiehlbooks.com/2014/11/legal-lis-delta-offers-200-credit-to-owner-for-lost-dog/ http://www.liswiehlbooks.com/2014/11/legal-lis-delta-offers-200-credit-to-owner-for-lost-dog/#comments Fri, 14 Nov 2014 20:04:09 +0000 http://www.liswiehlbooks.com/?p=1361 delta   Every time you fly, if you check your bags, you have to trust someone else to take care of and deliver your possessions. I always get more than just a little anxious at the thought of handing over clothes and the like, because a lot can go wrong. Things can be damaged, your bag can get lost, you miss a connection and the bag goes one way while you're stuck somewhere else. The possibilities are all but endless. As much as I dread the thought of losing my things, in the end, they are just things. In the grand scheme of traveling, having your bag lost or misplaced isn’t the end of the world. But what if, instead of your suitcase filled to the brim with possessions, an airline lost your dog? This is what happened to one recent traveler. Frank Romano boarded a Delta flight from California to Florida after handing over his pit bull, Ty, to travel in a kennel. Before the flight left, though, Frank was told that Ty had chewed his way out of the kennel and was lost. Delta claims to be doing all things possible to find Ty and the airline has offered Frank a $200 credit for future travel. No, that is not a typographical error. A dog is missing and Delta has offered only $200 in consolation. How can this be? Is Delta liable for the loss of the dog? If so, for how much? These are all the questions that flooded my head as I read about Frank and Ty. If you’re just as curious, here are a few answers:
  • Yes, airlines are liable for lost or damaged baggage, which includes a dog. Airlines limit their liability and must meet a minimum that is set by the federal government. Currently, the minimum dollar amount airlines can establish to compensate for lost, delayed and damaged baggage on domestic flights is $3,400.
  • A quick check of Delta's policy on baggage liability reveals that the airline has gone with the minimum.
  • Passengers may declare a higher value for their baggage, making an airline liable for more than the minimum, but said passenger must do so before the flight and must pay a fee.
  • A passenger can challenge the liability limit. In general, though, as long as the passenger had notice of the limit and an opportunity to declare a higher value for that baggage, the limit will hold up in court.
As far as I can tell, Frank did not declare a higher value, so it looks like any liability for his missing dog would be capped at $3,400. And case law has tended to stand by an airline's minimum liability. For example, in 1983, Thomas Deiro shipped nine racing greyhounds by air from Portland to Boston. During a layover in Dallas, the airline left the dogs in their cages in 97° heat. Seven of the dogs died, and two were injured. Deiro sued American Airlines for $900,000, but the court only awarded him $750, which was the liability limit at the time. The court reasoned that as an experienced traveler, Deiro should have declared a higher value for his dogs. In its decision, the court stated, "We find it difficult to imagine how any passenger with Deiro's experience, planning to check a quarter of a million dollars worth of baggage, could have had more opportunity or incentive to familiarize himself with the baggage liability provisions." In sum, airlines have a long and protected history in limiting their liability. Nevertheless, here’s hoping that Ty and Frank are reunited soon. You can hear more of my thoughts on this topic on the Legal Lis podcast: foxrad.io/1xhHHJd   ]]>
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Lis Wiehl Books http://www.liswiehlbooks.com FOX News Legal Analyst and Author Fri, 05 Dec 2014 20:34:01 +0000 en-US hourly 1 http://wordpress.org/?v=3.9.3 Legal Lis: Brown Family Lawyer Will Pursue “Every Legal Avenue” http://www.liswiehlbooks.com/2014/12/legal-lis-brown-family-lawyer-will-pursue-every-legal-avenue/ http://www.liswiehlbooks.com/2014/12/legal-lis-brown-family-lawyer-will-pursue-every-legal-avenue/#comments Fri, 05 Dec 2014 20:33:14 +0000 http://www.liswiehlbooks.com/?p=1367 LW

Even though a grand jury has decided not to indict Darren Wilson for the shooting of Michael Brown, that does not mean that Wilson’s time in court is over. It’s still possible that there will be federal charges, and then there’s the chance of a civil suit brought by Brown’s family. The lawyer for the Brown family recently announced that they would pursue “every legal avenue” available to them. One thing this likely means is a wrongful death suit. Missouri’s law on wrongful death says the following:
537.080. 1. Whenever the death of a person results from any act, conduct, occurrence, transaction, or circumstance which, if death had not ensued, would have entitled such person to recover damages in respect thereof, the person or party who, or the corporation which, would have been liable if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured, which damages may be sued for: (1) By the spouse or children or the surviving lineal descendants of any deceased children, natural or adopted, legitimate or illegitimate, or by the father or mother of the deceased, natural or adoptive; (2) If there be no persons in class (1) entitled to bring the action, then by the brother or sister of the deceased, or their descendants, who can establish his or her right to those damages set out in section 537.090 because of the death; (3) If there be no persons in class (1) or (2) entitled to bring the action, then by a plaintiff ad litem. Such plaintiff ad litem shall be appointed by the court having jurisdiction over the action for damages provided in this section upon application of some person entitled to share in the proceeds of such action. Such plaintiff ad litem shall be some suitable person competent to prosecute such action and whose appointment is requested on behalf of those persons entitled to share in the proceeds of such action. Such court may, in its discretion, require that such plaintiff ad litem give bond for the faithful performance of his duties.
In short, this means a wrongful death claim can be brought against a person whose negligent or intentional actions caused the death of another person. And to win a wrongful death suit, the Brown family has a much lighter burden than there would have been in a criminal case. In general, crimes must be proven beyond a reasonable doubt. In a civil wrongful death suit, though, the standard of proof is a preponderance of evidence, which basically just means that it is more likely than not that a certain thing happened. In a wrongful death suit against Darren Wilson, it would have to be shown that it is more likely than not that Wilson’s actions were responsible for Michael Brown’s death. Many watched as Prosecuting Attorney Bob McCulloch announced that there would be no indictment for Darren Wilson. We also saw the outraged reactions from protestors in and around Ferguson, Missouri. Then came Wilson’s resignation from the Ferguson Police Department. What’s next in this story has yet to be determined, but it would not be a shock to hear that the Brown family is moving forward with a wrongful death suit. What are your thoughts on the subject? Hear mine on the latest Legal Lis podcast: foxrad.io/1BdNfpQ ]]>
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Legal Lis: Delta Offers 0 Credit to Owner for Lost Dog http://www.liswiehlbooks.com/2014/11/legal-lis-delta-offers-200-credit-to-owner-for-lost-dog/ http://www.liswiehlbooks.com/2014/11/legal-lis-delta-offers-200-credit-to-owner-for-lost-dog/#comments Fri, 14 Nov 2014 20:04:09 +0000 http://www.liswiehlbooks.com/?p=1361 delta   Every time you fly, if you check your bags, you have to trust someone else to take care of and deliver your possessions. I always get more than just a little anxious at the thought of handing over clothes and the like, because a lot can go wrong. Things can be damaged, your bag can get lost, you miss a connection and the bag goes one way while you're stuck somewhere else. The possibilities are all but endless. As much as I dread the thought of losing my things, in the end, they are just things. In the grand scheme of traveling, having your bag lost or misplaced isn’t the end of the world. But what if, instead of your suitcase filled to the brim with possessions, an airline lost your dog? This is what happened to one recent traveler. Frank Romano boarded a Delta flight from California to Florida after handing over his pit bull, Ty, to travel in a kennel. Before the flight left, though, Frank was told that Ty had chewed his way out of the kennel and was lost. Delta claims to be doing all things possible to find Ty and the airline has offered Frank a 0 credit for future travel. No, that is not a typographical error. A dog is missing and Delta has offered only 0 in consolation. How can this be? Is Delta liable for the loss of the dog? If so, for how much? These are all the questions that flooded my head as I read about Frank and Ty. If you’re just as curious, here are a few answers:
  • Yes, airlines are liable for lost or damaged baggage, which includes a dog. Airlines limit their liability and must meet a minimum that is set by the federal government. Currently, the minimum dollar amount airlines can establish to compensate for lost, delayed and damaged baggage on domestic flights is ,400.
  • A quick check of Delta's policy on baggage liability reveals that the airline has gone with the minimum.
  • Passengers may declare a higher value for their baggage, making an airline liable for more than the minimum, but said passenger must do so before the flight and must pay a fee.
  • A passenger can challenge the liability limit. In general, though, as long as the passenger had notice of the limit and an opportunity to declare a higher value for that baggage, the limit will hold up in court.
As far as I can tell, Frank did not declare a higher value, so it looks like any liability for his missing dog would be capped at ,400. And case law has tended to stand by an airline's minimum liability. For example, in 1983, Thomas Deiro shipped nine racing greyhounds by air from Portland to Boston. During a layover in Dallas, the airline left the dogs in their cages in 97° heat. Seven of the dogs died, and two were injured. Deiro sued American Airlines for 0,000, but the court only awarded him 0, which was the liability limit at the time. The court reasoned that as an experienced traveler, Deiro should have declared a higher value for his dogs. In its decision, the court stated, "We find it difficult to imagine how any passenger with Deiro's experience, planning to check a quarter of a million dollars worth of baggage, could have had more opportunity or incentive to familiarize himself with the baggage liability provisions." In sum, airlines have a long and protected history in limiting their liability. Nevertheless, here’s hoping that Ty and Frank are reunited soon. You can hear more of my thoughts on this topic on the Legal Lis podcast: foxrad.io/1xhHHJd   ]]>
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Legal Lis: Homeowners Association Battles with an Elderly Veteran over a Flagpole http://www.liswiehlbooks.com/2014/11/legal-lis-homeowners-association-battles-with-an-elderly-veteran-over-a-flagpole/ http://www.liswiehlbooks.com/2014/11/legal-lis-homeowners-association-battles-with-an-elderly-veteran-over-a-flagpole/#comments Mon, 03 Nov 2014 14:37:16 +0000 http://www.liswiehlbooks.com/?p=1354 Lis

An 82-year-old man and his wife have recently been fielding letters from their homeowners association related to the flagpole they have in their front yard. The couple was first told in September that their flagpole should be removed from the front yard because it was not mounted to their home. But Bob Willits, who served four years during the Korean War, and his wife, Judy, are fighting the requests from the Fieldstone Homeowners Association. At first blush, it’s hard for me to imagine why a homeowners association would be so set on fighting a flagpole. As far as I can tell, it isn’t blocking a public sidewalk, it’s not endangering people in the neighborhood, and there’s nothing obscene of offensive being flown from the flagpole. No, it’s seems to be just two people intent on expressing their patriotism. Beyond this, though, there’s also the fact that there’s something called the Freedom to Display the American Flag Act of 2005, which intends to prevent the likes of a homeowners association from restricting homeowners when it comes to displaying the U.S. flag on their property. For the legally inclined, here’s the text of the American Flag Act:
SECTION 1. SHORT TITLE. This Act may be cited as the `Freedom to Display the American Flag Act of 2005'. SEC. 2. DEFINITIONS. For purposes of this Act-- 1. the term `flag of the United States' has the meaning given the term `flag, standard, colors, or ensign' under section 3 of title 4, United States Code; 2. the terms `condominium association' and `cooperative association' have the meanings given such terms under section 604 of Public Law 96-399 (15 U.S.C. 3603); 3. the term `residential real estate management association' has the meaning given such term under section 528 of the Internal Revenue Code of 1986 (26 U.S.C. 528); and 4. the term `member'--
(A) as used with respect to a condominium association, means an owner of a condominium unit (as defined under section 604 of Public Law 96-399 (15 U.S.C. 3603)) within such association; (B) as used with respect to a cooperative association, means a cooperative unit owner (as defined under section 604 of Public Law 96-399 (15 U.S.C. 3603)) within such association; and (C) as used with respect to a residential real estate management association, means an owner of a residential property within a subdivision, development, or similar area subject to any policy or restriction adopted by such association.
 SEC. 3. RIGHT TO DISPLAY THE FLAG OF THE UNITED STATES. A condominium association, cooperative association, or residential real estate management association may not adopt or enforce any policy, or enter into any agreement, that would restrict or prevent a member of the association from displaying the flag of the United States on residential property within the association with respect to which such member has a separate ownership interest or a right to exclusive possession or use. SEC. 4. LIMITATIONS. Nothing in this Act shall be considered to permit any display or use that is inconsistent with-- 1. any provision of chapter 1 of title 4, United States Code, or any rule or custom pertaining to the proper display or use of the flag of the United States (as established pursuant to such chapter or any otherwise applicable provision of law); or 2. any reasonable restriction pertaining to the time, place, or manner of displaying the flag of the United States necessary to protect a substantial interest of the condominium association, cooperative association, or residential real estate management association.
According to the homeowners association, it has authority to request the removal of the flagpole under Section 4, Part 2. Evidently, it believes that it has a substantial interest in restricting the “time, place, or manner” of the Willits’ flagpole. What do you think? Does the Homeowners Association have the right to make this request? Is there a substantial interest? Hear my thoughts on the Legal Lis podcast: http://foxrad.io/1zKC1Jn ]]>
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Legal Lis Podcast: Thomas Eric Duncan’s Family Eyes Lawsuit http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-thomas-eric-duncans-family-eyes-lawsuit/ http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-thomas-eric-duncans-family-eyes-lawsuit/#comments Fri, 17 Oct 2014 21:17:45 +0000 http://www.liswiehlbooks.com/?p=1347 TD

No doubt you’ve heard of Thomas Duncan, that he was the first person to be diagnosed with Ebola on United States soil, and that he died from the disease on October 8, 2014 at Texas Health Presbyterian Hospital. There’s certainly more to the story, though, like the suggestion that he lied to airport screeners in Liberia in order to come to the United States. What’s known is that he helped a pregnant woman in Liberia who was infected with Ebola. What some say is not so clear is whether or not he had reason to believe he might be infected when he boarded a plane to come the U.S. Another huge part of the story is what happened once he got here. He went to Texas Health Presbyterian Hospital with a fever shortly after arriving from Liberia. The story goes that he mentioned that he had been to Liberia but that information was not properly relayed to the appropriate people. And so, he was sent home with some antibiotics. Two days later, he returned to the hospital in an ambulance and this time, proper precautions were taken and he was isolated. Shortly thereafter, he died. So far, two of the nurses involved in the treatment of Duncan have been diagnosed with Ebola. And many others are being monitored. The short of it is that Ebola is not just a story we observe from afar anymore. It’s here, in our own backyard, so to speak. And now, there is talk of a lawsuit brought by Duncan’s family against the hospital related to his treatment. So what we’re talking about is a potential medical malpractice lawsuit. In general, medical malpractice occurs when a doctor or medical professional fails to competently perform his or her duties. In other words, the doctor or medical professional was negligent in relation to his or her treatment of a patient. In Texas, the statute related to medical malpractice sets an extremely high bar when it comes to proving that there was medical malpractice. For the mildly curious, the gist of the law is that it must be proven that doctors were “wilfully or wantonly negligent.” For the extremely curious, the laws says the following:
Sec. 74.151. LIABILITY FOR EMERGENCY CARE (a) A person who in good faith administers emergency care is not liable in civil damages for an act performed during the emergency unless the act is wilfully or wantonly negligent, including a person who:

(1) administers emergency care using an automated external defibrillator; or

(2) administers emergency care as a volunteer who is a first responder as the term is defined under Section 421.095, Government Code.

(b) This section does not apply to care administered:

(1) for or in expectation of remuneration, provided that being legally entitled to receive remuneration for the emergency care rendered shall not determine whether or not the care was administered for or in anticipation of remuneration; or

(2) by a person who was at the scene of the emergency because he or a person he represents as an agent was soliciting business or seeking to perform a service for remuneration.

(c), (d) Deleted by Acts 2003, 78th Leg., ch. 204, Sec. 10.01. (e) Except as provided by this subsection, this section does not apply to a person whose negligent act or omission was a producing cause of the emergency for which care is being administered. This subsection does not apply to liability of a school district or district school officer or employee arising from an act or omission under a program or policy or procedure adopted under Subchapter O-1, Chapter 161, Health and Safety Code, other than liability arising from wilful or intentional misconduct.
So, are we talking about doctors and medical professionals who were “wilfully and wantonly” negligent? Yes, Duncan was initially released from the hospital with a fever of 103 and had relayed the fact that he had been in Liberia. Yes, the hospital made a few missteps. But, under Texas law, it’s going to be a really tough case to prove. What are your thoughts on Thomas Duncan and the possibility of a lawsuit brought by his family? You can hear more of my thoughts on the Legal Lis podcast: foxrad.io/1w3mnns ]]>
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Legal Lis Podcast: The Supreme Court Denies All Same-Sex Marriage Petitions http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-the-supreme-court-denies-all-same-sex-marriage-petitions/ http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-the-supreme-court-denies-all-same-sex-marriage-petitions/#comments Fri, 10 Oct 2014 18:35:47 +0000 http://www.liswiehlbooks.com/?p=1342 SC

This week, the Supreme Court denied all seven petitions related to same-sex marriage, which may or may not come as a shock to you. You are likely to recall that in June 2013, in United States v. Windsor, the Supreme Court struck down Section 3 of the federal Defense of Marriage Act, which had defined “marriage” as a union between a man and a woman. This five-to-four decision meant that same-sex couples who were married in states where same-sex marriage was legal would have the same rights as other married couples when it came to things like, say, filing joint federal tax returns. After the Windsor case, we all knew that the same-sex marriage issue would be back in the Supreme Court. We also knew that the Court was not completely opposed to addressing the issue. So you wouldn't be totally off-base in assuming that the Supreme Court would take on at least one of these seven petitions. But, if you were really tuning in, the denial of the petitions is not all that surprising. For instance, recently, Justice Ruth Bader Ginsburg suggested that the Court might not take on the current issue because there was no disagreement among the lower courts at this point. And it seems as though her prediction was correct. But the fact that the Supreme Court has denied these petitions does not mean that there are not huge effects, so it's important to understand these cases and know what to expect in the future. To begin with, let’s look at the seven petitions the Court denied:
  • Baskin v. Bogan (Indiana): This case challenged the state's denial of marriage rights to same-sex couples. It was filed in federal district court on March 12, 2014 where Chief Judge Richard Young found for the plaintiffs. A three-judge panel of the U.S. Court of Appeals for the Seventh Circuit upheld the district court ruling in a unanimous decision on September 4. Both parties asked the Supreme Court to consider the case.
  • Walker v. Wolf (Wisconsin): This is federal lawsuit filed in February 2014 that challenged Wisconsin's refusal to grant marriage licenses to same-sex couples. In June 2014, Judge Barbara Crabb of the U.S. District Court for the Western District of Wisconsin ruled for the plaintiffs. The state appealed her decision to the Seventh Circuit Court of Appeals, which affirmed her opinion in a unanimous decision on September 4. Wisconsin asked the Supreme Court to consider the case.
  • Herbert v. Kitchen (Utah): A federal case that challenged Utah's constitutional ban on marriage for same-sex couples. Three same-sex couples filed suit in March 2013. In December 2013, the U.S. District Court for the District of Utah found the state's ban on same-sex marriage unconstitutional. In June 2014, the Tenth Circuit Court of Appeals affirmed the decision of the district court. All parties supported review by the Supreme Court.
  • McQuigg v. Bostic, Rainey v. Bostic, Schaefer v. Bostic (Virginia): A group of same-sex couples in Virginia filed suit to challenge the state’s refusal to acknowledge same-sex marriages. The Fourth Circuit Court of Appeals ruled for the plaintiffs and the case went to the Supreme Court for consideration.
  • Smith v. Bishop (Oklahoma): Two same-sex couples challenged Oklahoma's ban on same-sex marriage. In January 2014, U.S. District Court Judge Terence Kern ruled that Oklahoma's ban on same-sex marriage was unconstitutional. The Tenth Circuit Court of Appeals affirmed.
In the coming days and weeks, you can expect that same-sex marriages will be permitted when existing lower-court rulings against state bans go into effect in Indiana, Wisconsin, Utah, Virginia, and Oklahoma. Also, when the court of appeals rulings are implemented, same-sex marriages can occur in North Carolina, South Carolina and West Virginia (Fourth Circuit) and in Colorado, Kansas, and Wyoming (Tenth Circuit). And finally, four other circuits – the Fifth, Sixth, Ninth, and Eleventh – are currently considering the constitutionality of same-sex marriages. And these circuits could make decisions based on how they interpret what the Supreme Court did. Needless to say, denying the petitions has had and will have a resounding impact. You can hear my thoughts on this topic on the Legal Lis podcast: foxrad.io/1v2H4St ]]>
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Legal Lis Podcast: Is Alton Nolen a Terrorist? http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-is-alton-nolen-a-terrorist/ http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-is-alton-nolen-a-terrorist/#comments Fri, 03 Oct 2014 17:48:29 +0000 http://www.liswiehlbooks.com/?p=1337 LL

Colleen Hufford was beheaded by 30- year-old Alton Nolen during a gruesome attack at a Vaughan Foods plant in Oklahoma. Nolen was also able to repeatedly stab another victim, Traci Johnson, before he was shot by the company's CEO, Mark Vaughan, who is also a reserve deputy sheriff. Nolen had been suspended from the company just before he went into Vaughan’s administrative office and attacked the women. Cleveland County prosecutor Greg Mashburn said on Tuesday, 09/30/14, that Nolen will be charged with first-degree murder as well as assault charges. The good news is that first-degree murder in Oklahoma can result in the death penalty. And it’s not unlikely that this would be Nolen’s fate. But some aren’t satisfied, saying that Nolen is a terrorist and should be charged as such. Before I voiced an opinion one way or the other, I wanted to do a little digging of my own. In essence, I wanted a list of all of the things that point to charging Nolen as a terrorist. Here’s what I’ve come up with:
  • Nolen recently converted to Islam and reportedly tried to convert co-workers to Islam.
  • Nolen used Arabic terms during his attack.
  • On his Facebook account, Nolen posted photos of Osama bin Laden, other jihadis, and the Twin Towers burning.
  • His Facebook account also included a very graphic photo of a beheaded victim.
  • He reportedly wrote the following on his Facebook: "She (the Statue of Liberty) is going into flames. She and anybody who's with her."
  • He posted photos of a woman being flogged with the words "Islam will dominate the world. Freedom can go to hell."
  • There are some reports that Suhaib Webb, an imam with known ties to former Al Qaeda mastermind Anwar al Awlaki, appears to have influenced the life of Alton Nolen. Webb, who was once the leader of the Islamic Society of Greater Oklahoma City, now serves as an imam at a mosque in Boston once attended by accused Boston Marathon bombers Dzhokhar and Tamerlan Tsarnaev.
  • Possibly copying ISIS: ISIS has posted for all to see the beheadings of James Foley, Steven Sotloff, and David Haines. This gives terrorists inspiration to copy. It could be that Nolen was acting as a so-called “lone wolf”. Just last week, an ISIS leader, Abu Muhammad al-Adnani, released a recorded speech directed toward "lone wolf" operations and encouraging terrorists to act. "Do not ask for anyone's advice and do not seek anyone's verdict, kill the infidel whether he is civilian or military."
No one factor on its own necessarily spells terrorist, but when combined, you definitely have to wonder. Do you have anything else you think should be added to the list? And do you think Alton Nolen is a terrorist? You can hear my thoughts on how Nolen should be charged on the Legal Lis podcast: foxrad.io/1pGfa6P ]]>
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Legal Lis Podcast: Ray Rice and Double Jeopardy http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-ray-rice-and-double-jeopardy/ http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-ray-rice-and-double-jeopardy/#comments Fri, 26 Sep 2014 20:07:15 +0000 http://www.liswiehlbooks.com/?p=1329 RR Unless you’ve successfully avoided all types of news and gossip lately, you’ve heard about Ray Rice’s recent scandal. What’s more, you’ve probably seen the tragic video in which he punched his then-fiancé, knocking her out, and then dragged her out of an elevator. For Ray Rice – and the NFL – the release of the video footage changed everything. Seeing what he did somehow makes it more despicable, if that’s possible. Seeing it as a video outrages us and incites us to question the NFL. And seeing that video gives us something palpable to arm ourselves with when deciding how we feel about the situation. No doubt about it, Ray Rice should not be given the opportunity to play professional football again. But, legally, it’s not so clear. The first thing to understand is that NFL’s collective bargaining agreement does not have a so-called “double jeopardy” provision. What is does have is Article 46, Section 4, which states that a player cannot be disciplined twice “for the same act or conduct.” The importance of this provision really hinges on when the powers that be at the NFL had and knew about the video showing the assault. There are allegations that the surveillance video of Rice’s assault was sent to league security chief Jeffry Miller in April. There is also talk that there is a voicemail from league offices confirming receipt of said video on April 9. If this is true, then when Ray Rice was punished with a two-game suspension, that should have been the end of it. If NFL officials had already seen the video, then they knew all there was to know and had somehow decided that a two-game suspension was enough of a punishment. Under this version, you’d have to assume that once the video was leaked to the masses, the NFL reacted with an indefinite suspension to nullify the outrage. The problem here is that the two-game suspension was punishment number one. And because of Article 46, Section 4, Rice can’t be punished again for the same act or conduct. On the other hand, you have Miller saying, "I unequivocally deny that I received at any time a copy of the video and I had not watched it until it was made public on September 8.” And NFL Commissioner Roger Goodell has publicly said several times that no one in his office viewed the video until TMZ posted it on its website in September. If this is the truth, then the video brought new information to the table, and so it might be appropriate to revise the two-game suspension. Eventually, the truth will come out. We will know one way or another exactly when Goodell and company knew of the video. And this truth will likely have a huge impact on Rice’s future as a player. Which version of the story do you believe? Do you think people within the NFL saw the video before giving Rice his first punishment? Hear my thoughts in the latest Legal Lis podcast: foxrad.io/1pjtSAK ]]> http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-ray-rice-and-double-jeopardy/feed/ 1 Legal Lis Podcast: The Adrian Peterson Child Injury Case http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-the-adrian-peterson-child-injury-case/ http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-the-adrian-peterson-child-injury-case/#comments Thu, 18 Sep 2014 16:18:23 +0000 http://www.liswiehlbooks.com/?p=1319 Untitled1 In this week’s Legal Lis, one of the subjects I discussed was the recent issue involving Adrian Peterson and his method of disciplining his child. If you haven’t heard much on this story, the basic facts are as follows: Peterson, who plays for the Minnesota Vikings, has been indicted by a Texas grand jury for beating his four-year-old son with a “switch.” The incident occurred in May in Spring, Texas following an argument between Peterson’s son and another child over a video game. Peterson chalked it up to his style of parenting, simply a way to discipline his son, but the extensive injuries piqued the interest of law enforcement. According to reports and photos from the Houston Police Department, Peterson’s son received visible cuts and bruises to his back, buttocks, legs, hands and even scrotum. Because of the severity of the injuries, Peterson now faces charges of injury to a child. This case inevitably makes you wonder: To what extent should parents be permitted to discipline their children as they see fit? The emotional response is oftentimes that a parent should have a lot of freedom in doing just that, parenting. Some parents spank, some use timeouts, others take things away – each parent has a different way of enforcing rules and setting boundaries. And parents should have that right. You could argue all day that one way is better than the next, but in the end, a parent is going to raise their children (hopefully) in the way they think will result in kids who respect others and who recognize boundaries. I know good parents who spank and I know good parents who would never discipline physically – and neither method is necessarily better or worse than the other. But a problem arises when the fine line between spanking to discipline and actually beating a child is blurred. And when that line is blurred or crossed, that is precisely where the legal side of things comes in. For the most part, states tend to agree that a parent should be able to discipline a child - to a certain extent - as he or she sees fit. For example, here in New York, a “parent, guardian or other person entrusted with the care and supervision of a person under the age of twenty-one……may use physical force, but not deadly physical force, upon such person when and to the extent that he reasonably believes it necessary to maintain discipline or to promote the welfare of such person.”  And a New York court recently held that when a father spanked his child with an open hand in order to discipline the child, this was a “reasonable use of force.” A four-judge panel ruled in the unanimous decision that, “the father’s open-handed spanking of the child as a form of discipline after he heard the child curse at an adult was a reasonable use of force and, under the circumstances presented here, did not constitute excessive corporal punishment.” In California, “’serious physical harm’ does not include reasonable and age-appropriate spanking to the buttocks where there is no evidence of serious physical injury.”  And a court has recently found that a California mother who used a wooden spoon to spank her 12-year-old was not a child abuser. Laws and cases all across the U.S. support the notion that a parent can discipline their children when it’s reasonable. So what’s the big deal with Adrian Peterson? Well, primarily, it’s that his method of discipline was pretty extreme. Some would argue that the punishment went well beyond just plain maintaining discipline. The law in Texas is pretty lenient when it comes to parental discipline, stating that “the use of force, but not deadly force, against a child younger than 18 years is justified: (1) if the actor is the child's parent or stepparent or is acting in loco parentis to the child; and (2) when and to the degree the actor reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare.​” But that doesn’t mean a parent can beat a child in Texas without breaking the law. What this law clearly does is leave a lot of room for parents to decide how to discipline. What it does not do is allow a parent to beat a child and say it’s in the name of discipline after the fact. The fact that a second grand jury has indicted Peterson on a child-injury charge indicates that at least some believe he went beyond what the law allows. But Peterson maintains that his conduct was reasonable. What do you think? You can hear more of my thoughts on this issue on the Legal Lis podcast: http://foxrad.io/1pjtSAK ]]> http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-the-adrian-peterson-child-injury-case/feed/ 2 Legal Lis Podcast: Celebrity Nude Photo Hack and California’s New “Yes-Means-Yes” Bill http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-celebrity-nude-photo-hack-and-californias-new-yes-means-yes-bill/ http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-celebrity-nude-photo-hack-and-californias-new-yes-means-yes-bill/#comments Thu, 04 Sep 2014 18:22:41 +0000 http://www.liswiehlbooks.com/?p=1303 LL

In this week’s Legal Lis, I discussed many of the legal aspects related to the recently leaked nude photos of Jennifer Lawrence and other celebrities. I also talked about California’s new “Yes-Means-Yes” bill, which is related to sexual assault on college campuses. Below, I’ve included some of the legal issues that arise from these two topics as well as my thoughts. If you want to hear the full discussion, you can now listen to the Legal Lis podcast here: http://foxrad.io/1oDQawL Celebrity Nude Photo Hack: It’s hard to feel safe on the Internet. With all the hacking going on, it’s almost impossible for a person to expect that private information will, in fact, remain private. Identity theft, stolen credit card info, leaked photos, hacked emails – you don’t have to look too far to find a story that involves at least one of these issues. Enter the latest story in which several celebrities had private photos stolen and leaked to the masses. Some argue that these celebrities shouldn’t be surprised. If you have nude photos stored somewhere on the Internet, you’re exposing yourself to the possibility that these photos will end up in the wrong hands. Others think that when a person sends an intimate photo to a significant other or spouse or friend – in some way that’s intended to remain private – you should be able to expect that those photos will remain private. No matter which way you lean on this issue, there are laws that apply. One issue that has to be discussed related to this leak is what kind of liability there is for Twitter, Facebook and other sites that have or had links to the photos. Legally, the truth is that there is not much liability. Section 230 of the Communications Decency Act is a federal law that creates a lot of protection for providers of an “interactive computer service.” In fact, the law states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Case law testing the immunity of Internet service providers under Section 230 almost always goes the way of no liability. For example, in one case, the Fourth Circuit Court of Appeals found that “lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions — such as deciding whether to publish, withdraw, postpone or alter content — are barred.” The decision goes on to point out that “Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum.” This is just one of the issues that arise from the recent photo hack. You can hear more – including discussion on revenge porn and punishment for the people who actually do the hacking – on the Legal Lis podcast. What do you think: Should we expect privacy on the Internet? Should Twitter and the like be held liable? California’s “Yes-Means-Yes” Bill  The so-called “yes-means-yes” bill, which was passed unanimously by the California State Senate, would require universities in CA to adopt a standard of unambiguous consent from all parties engaging in sexual activity. The bill defines affirmative consent as an “affirmative, conscious, and voluntary agreement to engage in sexual activity” and goes on to state that it “is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity.” That someone doesn’t protest or resist does not equal consent. Neither does silence. The goal of the bill is to prevent sexual assault on campus. And with the White House reporting that 1 in 5 female college students is sexually assaulted while in college, this is a laudable and necessary goal. But some aren’t convinced the bill will achieve its goals, arguing that people who don’t get an explicit “yes” before sex will be deemed rapists even though there was, say, nonverbal affirmation. What are your thoughts: Do you think this bill is a good idea? Can it achieve its goals?   I hope you enjoy the new podcast! Every Thursday from now on, a Legal Lis podcast will be made available so you can listen to the topics I'm discussing.              ]]>
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Q&A on Police Brutality, Part II http://www.liswiehlbooks.com/2014/11/legal-lis-homeowners-association-battles-with-an-elderly-veteran-over-a-flagpole/ http://www.liswiehlbooks.com/2014/11/legal-lis-homeowners-association-battles-with-an-elderly-veteran-over-a-flagpole/#comments Mon, 03 Nov 2014 14:37:16 +0000 http://www.liswiehlbooks.com/?p=1354 Lis

An 82-year-old man and his wife have recently been fielding letters from their homeowners association related to the flagpole they have in their front yard. The couple was first told in September that their flagpole should be removed from the front yard because it was not mounted to their home. But Bob Willits, who served four years during the Korean War, and his wife, Judy, are fighting the requests from the Fieldstone Homeowners Association. At first blush, it’s hard for me to imagine why a homeowners association would be so set on fighting a flagpole. As far as I can tell, it isn’t blocking a public sidewalk, it’s not endangering people in the neighborhood, and there’s nothing obscene of offensive being flown from the flagpole. No, it’s seems to be just two people intent on expressing their patriotism. Beyond this, though, there’s also the fact that there’s something called the Freedom to Display the American Flag Act of 2005, which intends to prevent the likes of a homeowners association from restricting homeowners when it comes to displaying the U.S. flag on their property. For the legally inclined, here’s the text of the American Flag Act:
SECTION 1. SHORT TITLE. This Act may be cited as the `Freedom to Display the American Flag Act of 2005'. SEC. 2. DEFINITIONS. For purposes of this Act-- 1. the term `flag of the United States' has the meaning given the term `flag, standard, colors, or ensign' under section 3 of title 4, United States Code; 2. the terms `condominium association' and `cooperative association' have the meanings given such terms under section 604 of Public Law 96-399 (15 U.S.C. 3603); 3. the term `residential real estate management association' has the meaning given such term under section 528 of the Internal Revenue Code of 1986 (26 U.S.C. 528); and 4. the term `member'--
(A) as used with respect to a condominium association, means an owner of a condominium unit (as defined under section 604 of Public Law 96-399 (15 U.S.C. 3603)) within such association; (B) as used with respect to a cooperative association, means a cooperative unit owner (as defined under section 604 of Public Law 96-399 (15 U.S.C. 3603)) within such association; and (C) as used with respect to a residential real estate management association, means an owner of a residential property within a subdivision, development, or similar area subject to any policy or restriction adopted by such association.
 SEC. 3. RIGHT TO DISPLAY THE FLAG OF THE UNITED STATES. A condominium association, cooperative association, or residential real estate management association may not adopt or enforce any policy, or enter into any agreement, that would restrict or prevent a member of the association from displaying the flag of the United States on residential property within the association with respect to which such member has a separate ownership interest or a right to exclusive possession or use. SEC. 4. LIMITATIONS. Nothing in this Act shall be considered to permit any display or use that is inconsistent with-- 1. any provision of chapter 1 of title 4, United States Code, or any rule or custom pertaining to the proper display or use of the flag of the United States (as established pursuant to such chapter or any otherwise applicable provision of law); or 2. any reasonable restriction pertaining to the time, place, or manner of displaying the flag of the United States necessary to protect a substantial interest of the condominium association, cooperative association, or residential real estate management association.
According to the homeowners association, it has authority to request the removal of the flagpole under Section 4, Part 2. Evidently, it believes that it has a substantial interest in restricting the “time, place, or manner” of the Willits’ flagpole. What do you think? Does the Homeowners Association have the right to make this request? Is there a substantial interest? Hear my thoughts on the Legal Lis podcast: http://foxrad.io/1zKC1Jn ]]>
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Lis Wiehl Books http://www.liswiehlbooks.com FOX News Legal Analyst and Author Fri, 05 Dec 2014 20:34:01 +0000 en-US hourly 1 http://wordpress.org/?v=3.9.3 Legal Lis: Brown Family Lawyer Will Pursue “Every Legal Avenue” http://www.liswiehlbooks.com/2014/12/legal-lis-brown-family-lawyer-will-pursue-every-legal-avenue/ http://www.liswiehlbooks.com/2014/12/legal-lis-brown-family-lawyer-will-pursue-every-legal-avenue/#comments Fri, 05 Dec 2014 20:33:14 +0000 http://www.liswiehlbooks.com/?p=1367 LW

Even though a grand jury has decided not to indict Darren Wilson for the shooting of Michael Brown, that does not mean that Wilson’s time in court is over. It’s still possible that there will be federal charges, and then there’s the chance of a civil suit brought by Brown’s family. The lawyer for the Brown family recently announced that they would pursue “every legal avenue” available to them. One thing this likely means is a wrongful death suit. Missouri’s law on wrongful death says the following:
537.080. 1. Whenever the death of a person results from any act, conduct, occurrence, transaction, or circumstance which, if death had not ensued, would have entitled such person to recover damages in respect thereof, the person or party who, or the corporation which, would have been liable if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured, which damages may be sued for: (1) By the spouse or children or the surviving lineal descendants of any deceased children, natural or adopted, legitimate or illegitimate, or by the father or mother of the deceased, natural or adoptive; (2) If there be no persons in class (1) entitled to bring the action, then by the brother or sister of the deceased, or their descendants, who can establish his or her right to those damages set out in section 537.090 because of the death; (3) If there be no persons in class (1) or (2) entitled to bring the action, then by a plaintiff ad litem. Such plaintiff ad litem shall be appointed by the court having jurisdiction over the action for damages provided in this section upon application of some person entitled to share in the proceeds of such action. Such plaintiff ad litem shall be some suitable person competent to prosecute such action and whose appointment is requested on behalf of those persons entitled to share in the proceeds of such action. Such court may, in its discretion, require that such plaintiff ad litem give bond for the faithful performance of his duties.
In short, this means a wrongful death claim can be brought against a person whose negligent or intentional actions caused the death of another person. And to win a wrongful death suit, the Brown family has a much lighter burden than there would have been in a criminal case. In general, crimes must be proven beyond a reasonable doubt. In a civil wrongful death suit, though, the standard of proof is a preponderance of evidence, which basically just means that it is more likely than not that a certain thing happened. In a wrongful death suit against Darren Wilson, it would have to be shown that it is more likely than not that Wilson’s actions were responsible for Michael Brown’s death. Many watched as Prosecuting Attorney Bob McCulloch announced that there would be no indictment for Darren Wilson. We also saw the outraged reactions from protestors in and around Ferguson, Missouri. Then came Wilson’s resignation from the Ferguson Police Department. What’s next in this story has yet to be determined, but it would not be a shock to hear that the Brown family is moving forward with a wrongful death suit. What are your thoughts on the subject? Hear mine on the latest Legal Lis podcast: foxrad.io/1BdNfpQ ]]>
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Legal Lis: Delta Offers 0 Credit to Owner for Lost Dog http://www.liswiehlbooks.com/2014/11/legal-lis-delta-offers-200-credit-to-owner-for-lost-dog/ http://www.liswiehlbooks.com/2014/11/legal-lis-delta-offers-200-credit-to-owner-for-lost-dog/#comments Fri, 14 Nov 2014 20:04:09 +0000 http://www.liswiehlbooks.com/?p=1361 delta   Every time you fly, if you check your bags, you have to trust someone else to take care of and deliver your possessions. I always get more than just a little anxious at the thought of handing over clothes and the like, because a lot can go wrong. Things can be damaged, your bag can get lost, you miss a connection and the bag goes one way while you're stuck somewhere else. The possibilities are all but endless. As much as I dread the thought of losing my things, in the end, they are just things. In the grand scheme of traveling, having your bag lost or misplaced isn’t the end of the world. But what if, instead of your suitcase filled to the brim with possessions, an airline lost your dog? This is what happened to one recent traveler. Frank Romano boarded a Delta flight from California to Florida after handing over his pit bull, Ty, to travel in a kennel. Before the flight left, though, Frank was told that Ty had chewed his way out of the kennel and was lost. Delta claims to be doing all things possible to find Ty and the airline has offered Frank a 0 credit for future travel. No, that is not a typographical error. A dog is missing and Delta has offered only 0 in consolation. How can this be? Is Delta liable for the loss of the dog? If so, for how much? These are all the questions that flooded my head as I read about Frank and Ty. If you’re just as curious, here are a few answers:
  • Yes, airlines are liable for lost or damaged baggage, which includes a dog. Airlines limit their liability and must meet a minimum that is set by the federal government. Currently, the minimum dollar amount airlines can establish to compensate for lost, delayed and damaged baggage on domestic flights is ,400.
  • A quick check of Delta's policy on baggage liability reveals that the airline has gone with the minimum.
  • Passengers may declare a higher value for their baggage, making an airline liable for more than the minimum, but said passenger must do so before the flight and must pay a fee.
  • A passenger can challenge the liability limit. In general, though, as long as the passenger had notice of the limit and an opportunity to declare a higher value for that baggage, the limit will hold up in court.
As far as I can tell, Frank did not declare a higher value, so it looks like any liability for his missing dog would be capped at ,400. And case law has tended to stand by an airline's minimum liability. For example, in 1983, Thomas Deiro shipped nine racing greyhounds by air from Portland to Boston. During a layover in Dallas, the airline left the dogs in their cages in 97° heat. Seven of the dogs died, and two were injured. Deiro sued American Airlines for 0,000, but the court only awarded him 0, which was the liability limit at the time. The court reasoned that as an experienced traveler, Deiro should have declared a higher value for his dogs. In its decision, the court stated, "We find it difficult to imagine how any passenger with Deiro's experience, planning to check a quarter of a million dollars worth of baggage, could have had more opportunity or incentive to familiarize himself with the baggage liability provisions." In sum, airlines have a long and protected history in limiting their liability. Nevertheless, here’s hoping that Ty and Frank are reunited soon. You can hear more of my thoughts on this topic on the Legal Lis podcast: foxrad.io/1xhHHJd   ]]>
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Legal Lis: Homeowners Association Battles with an Elderly Veteran over a Flagpole http://www.liswiehlbooks.com/2014/11/legal-lis-homeowners-association-battles-with-an-elderly-veteran-over-a-flagpole/ http://www.liswiehlbooks.com/2014/11/legal-lis-homeowners-association-battles-with-an-elderly-veteran-over-a-flagpole/#comments Mon, 03 Nov 2014 14:37:16 +0000 http://www.liswiehlbooks.com/?p=1354 Lis

An 82-year-old man and his wife have recently been fielding letters from their homeowners association related to the flagpole they have in their front yard. The couple was first told in September that their flagpole should be removed from the front yard because it was not mounted to their home. But Bob Willits, who served four years during the Korean War, and his wife, Judy, are fighting the requests from the Fieldstone Homeowners Association. At first blush, it’s hard for me to imagine why a homeowners association would be so set on fighting a flagpole. As far as I can tell, it isn’t blocking a public sidewalk, it’s not endangering people in the neighborhood, and there’s nothing obscene of offensive being flown from the flagpole. No, it’s seems to be just two people intent on expressing their patriotism. Beyond this, though, there’s also the fact that there’s something called the Freedom to Display the American Flag Act of 2005, which intends to prevent the likes of a homeowners association from restricting homeowners when it comes to displaying the U.S. flag on their property. For the legally inclined, here’s the text of the American Flag Act:
SECTION 1. SHORT TITLE. This Act may be cited as the `Freedom to Display the American Flag Act of 2005'. SEC. 2. DEFINITIONS. For purposes of this Act-- 1. the term `flag of the United States' has the meaning given the term `flag, standard, colors, or ensign' under section 3 of title 4, United States Code; 2. the terms `condominium association' and `cooperative association' have the meanings given such terms under section 604 of Public Law 96-399 (15 U.S.C. 3603); 3. the term `residential real estate management association' has the meaning given such term under section 528 of the Internal Revenue Code of 1986 (26 U.S.C. 528); and 4. the term `member'--
(A) as used with respect to a condominium association, means an owner of a condominium unit (as defined under section 604 of Public Law 96-399 (15 U.S.C. 3603)) within such association; (B) as used with respect to a cooperative association, means a cooperative unit owner (as defined under section 604 of Public Law 96-399 (15 U.S.C. 3603)) within such association; and (C) as used with respect to a residential real estate management association, means an owner of a residential property within a subdivision, development, or similar area subject to any policy or restriction adopted by such association.
 SEC. 3. RIGHT TO DISPLAY THE FLAG OF THE UNITED STATES. A condominium association, cooperative association, or residential real estate management association may not adopt or enforce any policy, or enter into any agreement, that would restrict or prevent a member of the association from displaying the flag of the United States on residential property within the association with respect to which such member has a separate ownership interest or a right to exclusive possession or use. SEC. 4. LIMITATIONS. Nothing in this Act shall be considered to permit any display or use that is inconsistent with-- 1. any provision of chapter 1 of title 4, United States Code, or any rule or custom pertaining to the proper display or use of the flag of the United States (as established pursuant to such chapter or any otherwise applicable provision of law); or 2. any reasonable restriction pertaining to the time, place, or manner of displaying the flag of the United States necessary to protect a substantial interest of the condominium association, cooperative association, or residential real estate management association.
According to the homeowners association, it has authority to request the removal of the flagpole under Section 4, Part 2. Evidently, it believes that it has a substantial interest in restricting the “time, place, or manner” of the Willits’ flagpole. What do you think? Does the Homeowners Association have the right to make this request? Is there a substantial interest? Hear my thoughts on the Legal Lis podcast: http://foxrad.io/1zKC1Jn ]]>
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Legal Lis Podcast: Thomas Eric Duncan’s Family Eyes Lawsuit http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-thomas-eric-duncans-family-eyes-lawsuit/ http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-thomas-eric-duncans-family-eyes-lawsuit/#comments Fri, 17 Oct 2014 21:17:45 +0000 http://www.liswiehlbooks.com/?p=1347 TD

No doubt you’ve heard of Thomas Duncan, that he was the first person to be diagnosed with Ebola on United States soil, and that he died from the disease on October 8, 2014 at Texas Health Presbyterian Hospital. There’s certainly more to the story, though, like the suggestion that he lied to airport screeners in Liberia in order to come to the United States. What’s known is that he helped a pregnant woman in Liberia who was infected with Ebola. What some say is not so clear is whether or not he had reason to believe he might be infected when he boarded a plane to come the U.S. Another huge part of the story is what happened once he got here. He went to Texas Health Presbyterian Hospital with a fever shortly after arriving from Liberia. The story goes that he mentioned that he had been to Liberia but that information was not properly relayed to the appropriate people. And so, he was sent home with some antibiotics. Two days later, he returned to the hospital in an ambulance and this time, proper precautions were taken and he was isolated. Shortly thereafter, he died. So far, two of the nurses involved in the treatment of Duncan have been diagnosed with Ebola. And many others are being monitored. The short of it is that Ebola is not just a story we observe from afar anymore. It’s here, in our own backyard, so to speak. And now, there is talk of a lawsuit brought by Duncan’s family against the hospital related to his treatment. So what we’re talking about is a potential medical malpractice lawsuit. In general, medical malpractice occurs when a doctor or medical professional fails to competently perform his or her duties. In other words, the doctor or medical professional was negligent in relation to his or her treatment of a patient. In Texas, the statute related to medical malpractice sets an extremely high bar when it comes to proving that there was medical malpractice. For the mildly curious, the gist of the law is that it must be proven that doctors were “wilfully or wantonly negligent.” For the extremely curious, the laws says the following:
Sec. 74.151. LIABILITY FOR EMERGENCY CARE (a) A person who in good faith administers emergency care is not liable in civil damages for an act performed during the emergency unless the act is wilfully or wantonly negligent, including a person who:

(1) administers emergency care using an automated external defibrillator; or

(2) administers emergency care as a volunteer who is a first responder as the term is defined under Section 421.095, Government Code.

(b) This section does not apply to care administered:

(1) for or in expectation of remuneration, provided that being legally entitled to receive remuneration for the emergency care rendered shall not determine whether or not the care was administered for or in anticipation of remuneration; or

(2) by a person who was at the scene of the emergency because he or a person he represents as an agent was soliciting business or seeking to perform a service for remuneration.

(c), (d) Deleted by Acts 2003, 78th Leg., ch. 204, Sec. 10.01. (e) Except as provided by this subsection, this section does not apply to a person whose negligent act or omission was a producing cause of the emergency for which care is being administered. This subsection does not apply to liability of a school district or district school officer or employee arising from an act or omission under a program or policy or procedure adopted under Subchapter O-1, Chapter 161, Health and Safety Code, other than liability arising from wilful or intentional misconduct.
So, are we talking about doctors and medical professionals who were “wilfully and wantonly” negligent? Yes, Duncan was initially released from the hospital with a fever of 103 and had relayed the fact that he had been in Liberia. Yes, the hospital made a few missteps. But, under Texas law, it’s going to be a really tough case to prove. What are your thoughts on Thomas Duncan and the possibility of a lawsuit brought by his family? You can hear more of my thoughts on the Legal Lis podcast: foxrad.io/1w3mnns ]]>
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Legal Lis Podcast: The Supreme Court Denies All Same-Sex Marriage Petitions http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-the-supreme-court-denies-all-same-sex-marriage-petitions/ http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-the-supreme-court-denies-all-same-sex-marriage-petitions/#comments Fri, 10 Oct 2014 18:35:47 +0000 http://www.liswiehlbooks.com/?p=1342 SC

This week, the Supreme Court denied all seven petitions related to same-sex marriage, which may or may not come as a shock to you. You are likely to recall that in June 2013, in United States v. Windsor, the Supreme Court struck down Section 3 of the federal Defense of Marriage Act, which had defined “marriage” as a union between a man and a woman. This five-to-four decision meant that same-sex couples who were married in states where same-sex marriage was legal would have the same rights as other married couples when it came to things like, say, filing joint federal tax returns. After the Windsor case, we all knew that the same-sex marriage issue would be back in the Supreme Court. We also knew that the Court was not completely opposed to addressing the issue. So you wouldn't be totally off-base in assuming that the Supreme Court would take on at least one of these seven petitions. But, if you were really tuning in, the denial of the petitions is not all that surprising. For instance, recently, Justice Ruth Bader Ginsburg suggested that the Court might not take on the current issue because there was no disagreement among the lower courts at this point. And it seems as though her prediction was correct. But the fact that the Supreme Court has denied these petitions does not mean that there are not huge effects, so it's important to understand these cases and know what to expect in the future. To begin with, let’s look at the seven petitions the Court denied:
  • Baskin v. Bogan (Indiana): This case challenged the state's denial of marriage rights to same-sex couples. It was filed in federal district court on March 12, 2014 where Chief Judge Richard Young found for the plaintiffs. A three-judge panel of the U.S. Court of Appeals for the Seventh Circuit upheld the district court ruling in a unanimous decision on September 4. Both parties asked the Supreme Court to consider the case.
  • Walker v. Wolf (Wisconsin): This is federal lawsuit filed in February 2014 that challenged Wisconsin's refusal to grant marriage licenses to same-sex couples. In June 2014, Judge Barbara Crabb of the U.S. District Court for the Western District of Wisconsin ruled for the plaintiffs. The state appealed her decision to the Seventh Circuit Court of Appeals, which affirmed her opinion in a unanimous decision on September 4. Wisconsin asked the Supreme Court to consider the case.
  • Herbert v. Kitchen (Utah): A federal case that challenged Utah's constitutional ban on marriage for same-sex couples. Three same-sex couples filed suit in March 2013. In December 2013, the U.S. District Court for the District of Utah found the state's ban on same-sex marriage unconstitutional. In June 2014, the Tenth Circuit Court of Appeals affirmed the decision of the district court. All parties supported review by the Supreme Court.
  • McQuigg v. Bostic, Rainey v. Bostic, Schaefer v. Bostic (Virginia): A group of same-sex couples in Virginia filed suit to challenge the state’s refusal to acknowledge same-sex marriages. The Fourth Circuit Court of Appeals ruled for the plaintiffs and the case went to the Supreme Court for consideration.
  • Smith v. Bishop (Oklahoma): Two same-sex couples challenged Oklahoma's ban on same-sex marriage. In January 2014, U.S. District Court Judge Terence Kern ruled that Oklahoma's ban on same-sex marriage was unconstitutional. The Tenth Circuit Court of Appeals affirmed.
In the coming days and weeks, you can expect that same-sex marriages will be permitted when existing lower-court rulings against state bans go into effect in Indiana, Wisconsin, Utah, Virginia, and Oklahoma. Also, when the court of appeals rulings are implemented, same-sex marriages can occur in North Carolina, South Carolina and West Virginia (Fourth Circuit) and in Colorado, Kansas, and Wyoming (Tenth Circuit). And finally, four other circuits – the Fifth, Sixth, Ninth, and Eleventh – are currently considering the constitutionality of same-sex marriages. And these circuits could make decisions based on how they interpret what the Supreme Court did. Needless to say, denying the petitions has had and will have a resounding impact. You can hear my thoughts on this topic on the Legal Lis podcast: foxrad.io/1v2H4St ]]>
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Legal Lis Podcast: Is Alton Nolen a Terrorist? http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-is-alton-nolen-a-terrorist/ http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-is-alton-nolen-a-terrorist/#comments Fri, 03 Oct 2014 17:48:29 +0000 http://www.liswiehlbooks.com/?p=1337 LL

Colleen Hufford was beheaded by 30- year-old Alton Nolen during a gruesome attack at a Vaughan Foods plant in Oklahoma. Nolen was also able to repeatedly stab another victim, Traci Johnson, before he was shot by the company's CEO, Mark Vaughan, who is also a reserve deputy sheriff. Nolen had been suspended from the company just before he went into Vaughan’s administrative office and attacked the women. Cleveland County prosecutor Greg Mashburn said on Tuesday, 09/30/14, that Nolen will be charged with first-degree murder as well as assault charges. The good news is that first-degree murder in Oklahoma can result in the death penalty. And it’s not unlikely that this would be Nolen’s fate. But some aren’t satisfied, saying that Nolen is a terrorist and should be charged as such. Before I voiced an opinion one way or the other, I wanted to do a little digging of my own. In essence, I wanted a list of all of the things that point to charging Nolen as a terrorist. Here’s what I’ve come up with:
  • Nolen recently converted to Islam and reportedly tried to convert co-workers to Islam.
  • Nolen used Arabic terms during his attack.
  • On his Facebook account, Nolen posted photos of Osama bin Laden, other jihadis, and the Twin Towers burning.
  • His Facebook account also included a very graphic photo of a beheaded victim.
  • He reportedly wrote the following on his Facebook: "She (the Statue of Liberty) is going into flames. She and anybody who's with her."
  • He posted photos of a woman being flogged with the words "Islam will dominate the world. Freedom can go to hell."
  • There are some reports that Suhaib Webb, an imam with known ties to former Al Qaeda mastermind Anwar al Awlaki, appears to have influenced the life of Alton Nolen. Webb, who was once the leader of the Islamic Society of Greater Oklahoma City, now serves as an imam at a mosque in Boston once attended by accused Boston Marathon bombers Dzhokhar and Tamerlan Tsarnaev.
  • Possibly copying ISIS: ISIS has posted for all to see the beheadings of James Foley, Steven Sotloff, and David Haines. This gives terrorists inspiration to copy. It could be that Nolen was acting as a so-called “lone wolf”. Just last week, an ISIS leader, Abu Muhammad al-Adnani, released a recorded speech directed toward "lone wolf" operations and encouraging terrorists to act. "Do not ask for anyone's advice and do not seek anyone's verdict, kill the infidel whether he is civilian or military."
No one factor on its own necessarily spells terrorist, but when combined, you definitely have to wonder. Do you have anything else you think should be added to the list? And do you think Alton Nolen is a terrorist? You can hear my thoughts on how Nolen should be charged on the Legal Lis podcast: foxrad.io/1pGfa6P ]]>
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Legal Lis Podcast: Ray Rice and Double Jeopardy http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-ray-rice-and-double-jeopardy/ http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-ray-rice-and-double-jeopardy/#comments Fri, 26 Sep 2014 20:07:15 +0000 http://www.liswiehlbooks.com/?p=1329 RR Unless you’ve successfully avoided all types of news and gossip lately, you’ve heard about Ray Rice’s recent scandal. What’s more, you’ve probably seen the tragic video in which he punched his then-fiancé, knocking her out, and then dragged her out of an elevator. For Ray Rice – and the NFL – the release of the video footage changed everything. Seeing what he did somehow makes it more despicable, if that’s possible. Seeing it as a video outrages us and incites us to question the NFL. And seeing that video gives us something palpable to arm ourselves with when deciding how we feel about the situation. No doubt about it, Ray Rice should not be given the opportunity to play professional football again. But, legally, it’s not so clear. The first thing to understand is that NFL’s collective bargaining agreement does not have a so-called “double jeopardy” provision. What is does have is Article 46, Section 4, which states that a player cannot be disciplined twice “for the same act or conduct.” The importance of this provision really hinges on when the powers that be at the NFL had and knew about the video showing the assault. There are allegations that the surveillance video of Rice’s assault was sent to league security chief Jeffry Miller in April. There is also talk that there is a voicemail from league offices confirming receipt of said video on April 9. If this is true, then when Ray Rice was punished with a two-game suspension, that should have been the end of it. If NFL officials had already seen the video, then they knew all there was to know and had somehow decided that a two-game suspension was enough of a punishment. Under this version, you’d have to assume that once the video was leaked to the masses, the NFL reacted with an indefinite suspension to nullify the outrage. The problem here is that the two-game suspension was punishment number one. And because of Article 46, Section 4, Rice can’t be punished again for the same act or conduct. On the other hand, you have Miller saying, "I unequivocally deny that I received at any time a copy of the video and I had not watched it until it was made public on September 8.” And NFL Commissioner Roger Goodell has publicly said several times that no one in his office viewed the video until TMZ posted it on its website in September. If this is the truth, then the video brought new information to the table, and so it might be appropriate to revise the two-game suspension. Eventually, the truth will come out. We will know one way or another exactly when Goodell and company knew of the video. And this truth will likely have a huge impact on Rice’s future as a player. Which version of the story do you believe? Do you think people within the NFL saw the video before giving Rice his first punishment? Hear my thoughts in the latest Legal Lis podcast: foxrad.io/1pjtSAK ]]> http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-ray-rice-and-double-jeopardy/feed/ 1 Legal Lis Podcast: The Adrian Peterson Child Injury Case http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-the-adrian-peterson-child-injury-case/ http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-the-adrian-peterson-child-injury-case/#comments Thu, 18 Sep 2014 16:18:23 +0000 http://www.liswiehlbooks.com/?p=1319 Untitled1 In this week’s Legal Lis, one of the subjects I discussed was the recent issue involving Adrian Peterson and his method of disciplining his child. If you haven’t heard much on this story, the basic facts are as follows: Peterson, who plays for the Minnesota Vikings, has been indicted by a Texas grand jury for beating his four-year-old son with a “switch.” The incident occurred in May in Spring, Texas following an argument between Peterson’s son and another child over a video game. Peterson chalked it up to his style of parenting, simply a way to discipline his son, but the extensive injuries piqued the interest of law enforcement. According to reports and photos from the Houston Police Department, Peterson’s son received visible cuts and bruises to his back, buttocks, legs, hands and even scrotum. Because of the severity of the injuries, Peterson now faces charges of injury to a child. This case inevitably makes you wonder: To what extent should parents be permitted to discipline their children as they see fit? The emotional response is oftentimes that a parent should have a lot of freedom in doing just that, parenting. Some parents spank, some use timeouts, others take things away – each parent has a different way of enforcing rules and setting boundaries. And parents should have that right. You could argue all day that one way is better than the next, but in the end, a parent is going to raise their children (hopefully) in the way they think will result in kids who respect others and who recognize boundaries. I know good parents who spank and I know good parents who would never discipline physically – and neither method is necessarily better or worse than the other. But a problem arises when the fine line between spanking to discipline and actually beating a child is blurred. And when that line is blurred or crossed, that is precisely where the legal side of things comes in. For the most part, states tend to agree that a parent should be able to discipline a child - to a certain extent - as he or she sees fit. For example, here in New York, a “parent, guardian or other person entrusted with the care and supervision of a person under the age of twenty-one……may use physical force, but not deadly physical force, upon such person when and to the extent that he reasonably believes it necessary to maintain discipline or to promote the welfare of such person.”  And a New York court recently held that when a father spanked his child with an open hand in order to discipline the child, this was a “reasonable use of force.” A four-judge panel ruled in the unanimous decision that, “the father’s open-handed spanking of the child as a form of discipline after he heard the child curse at an adult was a reasonable use of force and, under the circumstances presented here, did not constitute excessive corporal punishment.” In California, “’serious physical harm’ does not include reasonable and age-appropriate spanking to the buttocks where there is no evidence of serious physical injury.”  And a court has recently found that a California mother who used a wooden spoon to spank her 12-year-old was not a child abuser. Laws and cases all across the U.S. support the notion that a parent can discipline their children when it’s reasonable. So what’s the big deal with Adrian Peterson? Well, primarily, it’s that his method of discipline was pretty extreme. Some would argue that the punishment went well beyond just plain maintaining discipline. The law in Texas is pretty lenient when it comes to parental discipline, stating that “the use of force, but not deadly force, against a child younger than 18 years is justified: (1) if the actor is the child's parent or stepparent or is acting in loco parentis to the child; and (2) when and to the degree the actor reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare.​” But that doesn’t mean a parent can beat a child in Texas without breaking the law. What this law clearly does is leave a lot of room for parents to decide how to discipline. What it does not do is allow a parent to beat a child and say it’s in the name of discipline after the fact. The fact that a second grand jury has indicted Peterson on a child-injury charge indicates that at least some believe he went beyond what the law allows. But Peterson maintains that his conduct was reasonable. What do you think? You can hear more of my thoughts on this issue on the Legal Lis podcast: http://foxrad.io/1pjtSAK ]]> http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-the-adrian-peterson-child-injury-case/feed/ 2 Legal Lis Podcast: Celebrity Nude Photo Hack and California’s New “Yes-Means-Yes” Bill http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-celebrity-nude-photo-hack-and-californias-new-yes-means-yes-bill/ http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-celebrity-nude-photo-hack-and-californias-new-yes-means-yes-bill/#comments Thu, 04 Sep 2014 18:22:41 +0000 http://www.liswiehlbooks.com/?p=1303 LL

In this week’s Legal Lis, I discussed many of the legal aspects related to the recently leaked nude photos of Jennifer Lawrence and other celebrities. I also talked about California’s new “Yes-Means-Yes” bill, which is related to sexual assault on college campuses. Below, I’ve included some of the legal issues that arise from these two topics as well as my thoughts. If you want to hear the full discussion, you can now listen to the Legal Lis podcast here: http://foxrad.io/1oDQawL Celebrity Nude Photo Hack: It’s hard to feel safe on the Internet. With all the hacking going on, it’s almost impossible for a person to expect that private information will, in fact, remain private. Identity theft, stolen credit card info, leaked photos, hacked emails – you don’t have to look too far to find a story that involves at least one of these issues. Enter the latest story in which several celebrities had private photos stolen and leaked to the masses. Some argue that these celebrities shouldn’t be surprised. If you have nude photos stored somewhere on the Internet, you’re exposing yourself to the possibility that these photos will end up in the wrong hands. Others think that when a person sends an intimate photo to a significant other or spouse or friend – in some way that’s intended to remain private – you should be able to expect that those photos will remain private. No matter which way you lean on this issue, there are laws that apply. One issue that has to be discussed related to this leak is what kind of liability there is for Twitter, Facebook and other sites that have or had links to the photos. Legally, the truth is that there is not much liability. Section 230 of the Communications Decency Act is a federal law that creates a lot of protection for providers of an “interactive computer service.” In fact, the law states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Case law testing the immunity of Internet service providers under Section 230 almost always goes the way of no liability. For example, in one case, the Fourth Circuit Court of Appeals found that “lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions — such as deciding whether to publish, withdraw, postpone or alter content — are barred.” The decision goes on to point out that “Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum.” This is just one of the issues that arise from the recent photo hack. You can hear more – including discussion on revenge porn and punishment for the people who actually do the hacking – on the Legal Lis podcast. What do you think: Should we expect privacy on the Internet? Should Twitter and the like be held liable? California’s “Yes-Means-Yes” Bill  The so-called “yes-means-yes” bill, which was passed unanimously by the California State Senate, would require universities in CA to adopt a standard of unambiguous consent from all parties engaging in sexual activity. The bill defines affirmative consent as an “affirmative, conscious, and voluntary agreement to engage in sexual activity” and goes on to state that it “is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity.” That someone doesn’t protest or resist does not equal consent. Neither does silence. The goal of the bill is to prevent sexual assault on campus. And with the White House reporting that 1 in 5 female college students is sexually assaulted while in college, this is a laudable and necessary goal. But some aren’t convinced the bill will achieve its goals, arguing that people who don’t get an explicit “yes” before sex will be deemed rapists even though there was, say, nonverbal affirmation. What are your thoughts: Do you think this bill is a good idea? Can it achieve its goals?   I hope you enjoy the new podcast! Every Thursday from now on, a Legal Lis podcast will be made available so you can listen to the topics I'm discussing.              ]]>
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Q&A on Police Brutality, Part II http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-thomas-eric-duncans-family-eyes-lawsuit/ http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-thomas-eric-duncans-family-eyes-lawsuit/#comments Fri, 17 Oct 2014 21:17:45 +0000 http://www.liswiehlbooks.com/?p=1347 TD

No doubt you’ve heard of Thomas Duncan, that he was the first person to be diagnosed with Ebola on United States soil, and that he died from the disease on October 8, 2014 at Texas Health Presbyterian Hospital. There’s certainly more to the story, though, like the suggestion that he lied to airport screeners in Liberia in order to come to the United States. What’s known is that he helped a pregnant woman in Liberia who was infected with Ebola. What some say is not so clear is whether or not he had reason to believe he might be infected when he boarded a plane to come the U.S. Another huge part of the story is what happened once he got here. He went to Texas Health Presbyterian Hospital with a fever shortly after arriving from Liberia. The story goes that he mentioned that he had been to Liberia but that information was not properly relayed to the appropriate people. And so, he was sent home with some antibiotics. Two days later, he returned to the hospital in an ambulance and this time, proper precautions were taken and he was isolated. Shortly thereafter, he died. So far, two of the nurses involved in the treatment of Duncan have been diagnosed with Ebola. And many others are being monitored. The short of it is that Ebola is not just a story we observe from afar anymore. It’s here, in our own backyard, so to speak. And now, there is talk of a lawsuit brought by Duncan’s family against the hospital related to his treatment. So what we’re talking about is a potential medical malpractice lawsuit. In general, medical malpractice occurs when a doctor or medical professional fails to competently perform his or her duties. In other words, the doctor or medical professional was negligent in relation to his or her treatment of a patient. In Texas, the statute related to medical malpractice sets an extremely high bar when it comes to proving that there was medical malpractice. For the mildly curious, the gist of the law is that it must be proven that doctors were “wilfully or wantonly negligent.” For the extremely curious, the laws says the following:
Sec. 74.151. LIABILITY FOR EMERGENCY CARE (a) A person who in good faith administers emergency care is not liable in civil damages for an act performed during the emergency unless the act is wilfully or wantonly negligent, including a person who:

(1) administers emergency care using an automated external defibrillator; or

(2) administers emergency care as a volunteer who is a first responder as the term is defined under Section 421.095, Government Code.

(b) This section does not apply to care administered:

(1) for or in expectation of remuneration, provided that being legally entitled to receive remuneration for the emergency care rendered shall not determine whether or not the care was administered for or in anticipation of remuneration; or

(2) by a person who was at the scene of the emergency because he or a person he represents as an agent was soliciting business or seeking to perform a service for remuneration.

(c), (d) Deleted by Acts 2003, 78th Leg., ch. 204, Sec. 10.01. (e) Except as provided by this subsection, this section does not apply to a person whose negligent act or omission was a producing cause of the emergency for which care is being administered. This subsection does not apply to liability of a school district or district school officer or employee arising from an act or omission under a program or policy or procedure adopted under Subchapter O-1, Chapter 161, Health and Safety Code, other than liability arising from wilful or intentional misconduct.
So, are we talking about doctors and medical professionals who were “wilfully and wantonly” negligent? Yes, Duncan was initially released from the hospital with a fever of 103 and had relayed the fact that he had been in Liberia. Yes, the hospital made a few missteps. But, under Texas law, it’s going to be a really tough case to prove. What are your thoughts on Thomas Duncan and the possibility of a lawsuit brought by his family? You can hear more of my thoughts on the Legal Lis podcast: foxrad.io/1w3mnns ]]>
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Lis Wiehl Books http://www.liswiehlbooks.com FOX News Legal Analyst and Author Fri, 05 Dec 2014 20:34:01 +0000 en-US hourly 1 http://wordpress.org/?v=3.9.3 Legal Lis: Brown Family Lawyer Will Pursue “Every Legal Avenue” http://www.liswiehlbooks.com/2014/12/legal-lis-brown-family-lawyer-will-pursue-every-legal-avenue/ http://www.liswiehlbooks.com/2014/12/legal-lis-brown-family-lawyer-will-pursue-every-legal-avenue/#comments Fri, 05 Dec 2014 20:33:14 +0000 http://www.liswiehlbooks.com/?p=1367 LW

Even though a grand jury has decided not to indict Darren Wilson for the shooting of Michael Brown, that does not mean that Wilson’s time in court is over. It’s still possible that there will be federal charges, and then there’s the chance of a civil suit brought by Brown’s family. The lawyer for the Brown family recently announced that they would pursue “every legal avenue” available to them. One thing this likely means is a wrongful death suit. Missouri’s law on wrongful death says the following:
537.080. 1. Whenever the death of a person results from any act, conduct, occurrence, transaction, or circumstance which, if death had not ensued, would have entitled such person to recover damages in respect thereof, the person or party who, or the corporation which, would have been liable if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured, which damages may be sued for: (1) By the spouse or children or the surviving lineal descendants of any deceased children, natural or adopted, legitimate or illegitimate, or by the father or mother of the deceased, natural or adoptive; (2) If there be no persons in class (1) entitled to bring the action, then by the brother or sister of the deceased, or their descendants, who can establish his or her right to those damages set out in section 537.090 because of the death; (3) If there be no persons in class (1) or (2) entitled to bring the action, then by a plaintiff ad litem. Such plaintiff ad litem shall be appointed by the court having jurisdiction over the action for damages provided in this section upon application of some person entitled to share in the proceeds of such action. Such plaintiff ad litem shall be some suitable person competent to prosecute such action and whose appointment is requested on behalf of those persons entitled to share in the proceeds of such action. Such court may, in its discretion, require that such plaintiff ad litem give bond for the faithful performance of his duties.
In short, this means a wrongful death claim can be brought against a person whose negligent or intentional actions caused the death of another person. And to win a wrongful death suit, the Brown family has a much lighter burden than there would have been in a criminal case. In general, crimes must be proven beyond a reasonable doubt. In a civil wrongful death suit, though, the standard of proof is a preponderance of evidence, which basically just means that it is more likely than not that a certain thing happened. In a wrongful death suit against Darren Wilson, it would have to be shown that it is more likely than not that Wilson’s actions were responsible for Michael Brown’s death. Many watched as Prosecuting Attorney Bob McCulloch announced that there would be no indictment for Darren Wilson. We also saw the outraged reactions from protestors in and around Ferguson, Missouri. Then came Wilson’s resignation from the Ferguson Police Department. What’s next in this story has yet to be determined, but it would not be a shock to hear that the Brown family is moving forward with a wrongful death suit. What are your thoughts on the subject? Hear mine on the latest Legal Lis podcast: foxrad.io/1BdNfpQ ]]>
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Legal Lis: Delta Offers 0 Credit to Owner for Lost Dog http://www.liswiehlbooks.com/2014/11/legal-lis-delta-offers-200-credit-to-owner-for-lost-dog/ http://www.liswiehlbooks.com/2014/11/legal-lis-delta-offers-200-credit-to-owner-for-lost-dog/#comments Fri, 14 Nov 2014 20:04:09 +0000 http://www.liswiehlbooks.com/?p=1361 delta   Every time you fly, if you check your bags, you have to trust someone else to take care of and deliver your possessions. I always get more than just a little anxious at the thought of handing over clothes and the like, because a lot can go wrong. Things can be damaged, your bag can get lost, you miss a connection and the bag goes one way while you're stuck somewhere else. The possibilities are all but endless. As much as I dread the thought of losing my things, in the end, they are just things. In the grand scheme of traveling, having your bag lost or misplaced isn’t the end of the world. But what if, instead of your suitcase filled to the brim with possessions, an airline lost your dog? This is what happened to one recent traveler. Frank Romano boarded a Delta flight from California to Florida after handing over his pit bull, Ty, to travel in a kennel. Before the flight left, though, Frank was told that Ty had chewed his way out of the kennel and was lost. Delta claims to be doing all things possible to find Ty and the airline has offered Frank a 0 credit for future travel. No, that is not a typographical error. A dog is missing and Delta has offered only 0 in consolation. How can this be? Is Delta liable for the loss of the dog? If so, for how much? These are all the questions that flooded my head as I read about Frank and Ty. If you’re just as curious, here are a few answers:
  • Yes, airlines are liable for lost or damaged baggage, which includes a dog. Airlines limit their liability and must meet a minimum that is set by the federal government. Currently, the minimum dollar amount airlines can establish to compensate for lost, delayed and damaged baggage on domestic flights is ,400.
  • A quick check of Delta's policy on baggage liability reveals that the airline has gone with the minimum.
  • Passengers may declare a higher value for their baggage, making an airline liable for more than the minimum, but said passenger must do so before the flight and must pay a fee.
  • A passenger can challenge the liability limit. In general, though, as long as the passenger had notice of the limit and an opportunity to declare a higher value for that baggage, the limit will hold up in court.
As far as I can tell, Frank did not declare a higher value, so it looks like any liability for his missing dog would be capped at ,400. And case law has tended to stand by an airline's minimum liability. For example, in 1983, Thomas Deiro shipped nine racing greyhounds by air from Portland to Boston. During a layover in Dallas, the airline left the dogs in their cages in 97° heat. Seven of the dogs died, and two were injured. Deiro sued American Airlines for 0,000, but the court only awarded him 0, which was the liability limit at the time. The court reasoned that as an experienced traveler, Deiro should have declared a higher value for his dogs. In its decision, the court stated, "We find it difficult to imagine how any passenger with Deiro's experience, planning to check a quarter of a million dollars worth of baggage, could have had more opportunity or incentive to familiarize himself with the baggage liability provisions." In sum, airlines have a long and protected history in limiting their liability. Nevertheless, here’s hoping that Ty and Frank are reunited soon. You can hear more of my thoughts on this topic on the Legal Lis podcast: foxrad.io/1xhHHJd   ]]>
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Legal Lis: Homeowners Association Battles with an Elderly Veteran over a Flagpole http://www.liswiehlbooks.com/2014/11/legal-lis-homeowners-association-battles-with-an-elderly-veteran-over-a-flagpole/ http://www.liswiehlbooks.com/2014/11/legal-lis-homeowners-association-battles-with-an-elderly-veteran-over-a-flagpole/#comments Mon, 03 Nov 2014 14:37:16 +0000 http://www.liswiehlbooks.com/?p=1354 Lis

An 82-year-old man and his wife have recently been fielding letters from their homeowners association related to the flagpole they have in their front yard. The couple was first told in September that their flagpole should be removed from the front yard because it was not mounted to their home. But Bob Willits, who served four years during the Korean War, and his wife, Judy, are fighting the requests from the Fieldstone Homeowners Association. At first blush, it’s hard for me to imagine why a homeowners association would be so set on fighting a flagpole. As far as I can tell, it isn’t blocking a public sidewalk, it’s not endangering people in the neighborhood, and there’s nothing obscene of offensive being flown from the flagpole. No, it’s seems to be just two people intent on expressing their patriotism. Beyond this, though, there’s also the fact that there’s something called the Freedom to Display the American Flag Act of 2005, which intends to prevent the likes of a homeowners association from restricting homeowners when it comes to displaying the U.S. flag on their property. For the legally inclined, here’s the text of the American Flag Act:
SECTION 1. SHORT TITLE. This Act may be cited as the `Freedom to Display the American Flag Act of 2005'. SEC. 2. DEFINITIONS. For purposes of this Act-- 1. the term `flag of the United States' has the meaning given the term `flag, standard, colors, or ensign' under section 3 of title 4, United States Code; 2. the terms `condominium association' and `cooperative association' have the meanings given such terms under section 604 of Public Law 96-399 (15 U.S.C. 3603); 3. the term `residential real estate management association' has the meaning given such term under section 528 of the Internal Revenue Code of 1986 (26 U.S.C. 528); and 4. the term `member'--
(A) as used with respect to a condominium association, means an owner of a condominium unit (as defined under section 604 of Public Law 96-399 (15 U.S.C. 3603)) within such association; (B) as used with respect to a cooperative association, means a cooperative unit owner (as defined under section 604 of Public Law 96-399 (15 U.S.C. 3603)) within such association; and (C) as used with respect to a residential real estate management association, means an owner of a residential property within a subdivision, development, or similar area subject to any policy or restriction adopted by such association.
 SEC. 3. RIGHT TO DISPLAY THE FLAG OF THE UNITED STATES. A condominium association, cooperative association, or residential real estate management association may not adopt or enforce any policy, or enter into any agreement, that would restrict or prevent a member of the association from displaying the flag of the United States on residential property within the association with respect to which such member has a separate ownership interest or a right to exclusive possession or use. SEC. 4. LIMITATIONS. Nothing in this Act shall be considered to permit any display or use that is inconsistent with-- 1. any provision of chapter 1 of title 4, United States Code, or any rule or custom pertaining to the proper display or use of the flag of the United States (as established pursuant to such chapter or any otherwise applicable provision of law); or 2. any reasonable restriction pertaining to the time, place, or manner of displaying the flag of the United States necessary to protect a substantial interest of the condominium association, cooperative association, or residential real estate management association.
According to the homeowners association, it has authority to request the removal of the flagpole under Section 4, Part 2. Evidently, it believes that it has a substantial interest in restricting the “time, place, or manner” of the Willits’ flagpole. What do you think? Does the Homeowners Association have the right to make this request? Is there a substantial interest? Hear my thoughts on the Legal Lis podcast: http://foxrad.io/1zKC1Jn ]]>
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Legal Lis Podcast: Thomas Eric Duncan’s Family Eyes Lawsuit http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-thomas-eric-duncans-family-eyes-lawsuit/ http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-thomas-eric-duncans-family-eyes-lawsuit/#comments Fri, 17 Oct 2014 21:17:45 +0000 http://www.liswiehlbooks.com/?p=1347 TD

No doubt you’ve heard of Thomas Duncan, that he was the first person to be diagnosed with Ebola on United States soil, and that he died from the disease on October 8, 2014 at Texas Health Presbyterian Hospital. There’s certainly more to the story, though, like the suggestion that he lied to airport screeners in Liberia in order to come to the United States. What’s known is that he helped a pregnant woman in Liberia who was infected with Ebola. What some say is not so clear is whether or not he had reason to believe he might be infected when he boarded a plane to come the U.S. Another huge part of the story is what happened once he got here. He went to Texas Health Presbyterian Hospital with a fever shortly after arriving from Liberia. The story goes that he mentioned that he had been to Liberia but that information was not properly relayed to the appropriate people. And so, he was sent home with some antibiotics. Two days later, he returned to the hospital in an ambulance and this time, proper precautions were taken and he was isolated. Shortly thereafter, he died. So far, two of the nurses involved in the treatment of Duncan have been diagnosed with Ebola. And many others are being monitored. The short of it is that Ebola is not just a story we observe from afar anymore. It’s here, in our own backyard, so to speak. And now, there is talk of a lawsuit brought by Duncan’s family against the hospital related to his treatment. So what we’re talking about is a potential medical malpractice lawsuit. In general, medical malpractice occurs when a doctor or medical professional fails to competently perform his or her duties. In other words, the doctor or medical professional was negligent in relation to his or her treatment of a patient. In Texas, the statute related to medical malpractice sets an extremely high bar when it comes to proving that there was medical malpractice. For the mildly curious, the gist of the law is that it must be proven that doctors were “wilfully or wantonly negligent.” For the extremely curious, the laws says the following:
Sec. 74.151. LIABILITY FOR EMERGENCY CARE (a) A person who in good faith administers emergency care is not liable in civil damages for an act performed during the emergency unless the act is wilfully or wantonly negligent, including a person who:

(1) administers emergency care using an automated external defibrillator; or

(2) administers emergency care as a volunteer who is a first responder as the term is defined under Section 421.095, Government Code.

(b) This section does not apply to care administered:

(1) for or in expectation of remuneration, provided that being legally entitled to receive remuneration for the emergency care rendered shall not determine whether or not the care was administered for or in anticipation of remuneration; or

(2) by a person who was at the scene of the emergency because he or a person he represents as an agent was soliciting business or seeking to perform a service for remuneration.

(c), (d) Deleted by Acts 2003, 78th Leg., ch. 204, Sec. 10.01. (e) Except as provided by this subsection, this section does not apply to a person whose negligent act or omission was a producing cause of the emergency for which care is being administered. This subsection does not apply to liability of a school district or district school officer or employee arising from an act or omission under a program or policy or procedure adopted under Subchapter O-1, Chapter 161, Health and Safety Code, other than liability arising from wilful or intentional misconduct.
So, are we talking about doctors and medical professionals who were “wilfully and wantonly” negligent? Yes, Duncan was initially released from the hospital with a fever of 103 and had relayed the fact that he had been in Liberia. Yes, the hospital made a few missteps. But, under Texas law, it’s going to be a really tough case to prove. What are your thoughts on Thomas Duncan and the possibility of a lawsuit brought by his family? You can hear more of my thoughts on the Legal Lis podcast: foxrad.io/1w3mnns ]]>
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Legal Lis Podcast: The Supreme Court Denies All Same-Sex Marriage Petitions http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-the-supreme-court-denies-all-same-sex-marriage-petitions/ http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-the-supreme-court-denies-all-same-sex-marriage-petitions/#comments Fri, 10 Oct 2014 18:35:47 +0000 http://www.liswiehlbooks.com/?p=1342 SC

This week, the Supreme Court denied all seven petitions related to same-sex marriage, which may or may not come as a shock to you. You are likely to recall that in June 2013, in United States v. Windsor, the Supreme Court struck down Section 3 of the federal Defense of Marriage Act, which had defined “marriage” as a union between a man and a woman. This five-to-four decision meant that same-sex couples who were married in states where same-sex marriage was legal would have the same rights as other married couples when it came to things like, say, filing joint federal tax returns. After the Windsor case, we all knew that the same-sex marriage issue would be back in the Supreme Court. We also knew that the Court was not completely opposed to addressing the issue. So you wouldn't be totally off-base in assuming that the Supreme Court would take on at least one of these seven petitions. But, if you were really tuning in, the denial of the petitions is not all that surprising. For instance, recently, Justice Ruth Bader Ginsburg suggested that the Court might not take on the current issue because there was no disagreement among the lower courts at this point. And it seems as though her prediction was correct. But the fact that the Supreme Court has denied these petitions does not mean that there are not huge effects, so it's important to understand these cases and know what to expect in the future. To begin with, let’s look at the seven petitions the Court denied:
  • Baskin v. Bogan (Indiana): This case challenged the state's denial of marriage rights to same-sex couples. It was filed in federal district court on March 12, 2014 where Chief Judge Richard Young found for the plaintiffs. A three-judge panel of the U.S. Court of Appeals for the Seventh Circuit upheld the district court ruling in a unanimous decision on September 4. Both parties asked the Supreme Court to consider the case.
  • Walker v. Wolf (Wisconsin): This is federal lawsuit filed in February 2014 that challenged Wisconsin's refusal to grant marriage licenses to same-sex couples. In June 2014, Judge Barbara Crabb of the U.S. District Court for the Western District of Wisconsin ruled for the plaintiffs. The state appealed her decision to the Seventh Circuit Court of Appeals, which affirmed her opinion in a unanimous decision on September 4. Wisconsin asked the Supreme Court to consider the case.
  • Herbert v. Kitchen (Utah): A federal case that challenged Utah's constitutional ban on marriage for same-sex couples. Three same-sex couples filed suit in March 2013. In December 2013, the U.S. District Court for the District of Utah found the state's ban on same-sex marriage unconstitutional. In June 2014, the Tenth Circuit Court of Appeals affirmed the decision of the district court. All parties supported review by the Supreme Court.
  • McQuigg v. Bostic, Rainey v. Bostic, Schaefer v. Bostic (Virginia): A group of same-sex couples in Virginia filed suit to challenge the state’s refusal to acknowledge same-sex marriages. The Fourth Circuit Court of Appeals ruled for the plaintiffs and the case went to the Supreme Court for consideration.
  • Smith v. Bishop (Oklahoma): Two same-sex couples challenged Oklahoma's ban on same-sex marriage. In January 2014, U.S. District Court Judge Terence Kern ruled that Oklahoma's ban on same-sex marriage was unconstitutional. The Tenth Circuit Court of Appeals affirmed.
In the coming days and weeks, you can expect that same-sex marriages will be permitted when existing lower-court rulings against state bans go into effect in Indiana, Wisconsin, Utah, Virginia, and Oklahoma. Also, when the court of appeals rulings are implemented, same-sex marriages can occur in North Carolina, South Carolina and West Virginia (Fourth Circuit) and in Colorado, Kansas, and Wyoming (Tenth Circuit). And finally, four other circuits – the Fifth, Sixth, Ninth, and Eleventh – are currently considering the constitutionality of same-sex marriages. And these circuits could make decisions based on how they interpret what the Supreme Court did. Needless to say, denying the petitions has had and will have a resounding impact. You can hear my thoughts on this topic on the Legal Lis podcast: foxrad.io/1v2H4St ]]>
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Legal Lis Podcast: Is Alton Nolen a Terrorist? http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-is-alton-nolen-a-terrorist/ http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-is-alton-nolen-a-terrorist/#comments Fri, 03 Oct 2014 17:48:29 +0000 http://www.liswiehlbooks.com/?p=1337 LL

Colleen Hufford was beheaded by 30- year-old Alton Nolen during a gruesome attack at a Vaughan Foods plant in Oklahoma. Nolen was also able to repeatedly stab another victim, Traci Johnson, before he was shot by the company's CEO, Mark Vaughan, who is also a reserve deputy sheriff. Nolen had been suspended from the company just before he went into Vaughan’s administrative office and attacked the women. Cleveland County prosecutor Greg Mashburn said on Tuesday, 09/30/14, that Nolen will be charged with first-degree murder as well as assault charges. The good news is that first-degree murder in Oklahoma can result in the death penalty. And it’s not unlikely that this would be Nolen’s fate. But some aren’t satisfied, saying that Nolen is a terrorist and should be charged as such. Before I voiced an opinion one way or the other, I wanted to do a little digging of my own. In essence, I wanted a list of all of the things that point to charging Nolen as a terrorist. Here’s what I’ve come up with:
  • Nolen recently converted to Islam and reportedly tried to convert co-workers to Islam.
  • Nolen used Arabic terms during his attack.
  • On his Facebook account, Nolen posted photos of Osama bin Laden, other jihadis, and the Twin Towers burning.
  • His Facebook account also included a very graphic photo of a beheaded victim.
  • He reportedly wrote the following on his Facebook: "She (the Statue of Liberty) is going into flames. She and anybody who's with her."
  • He posted photos of a woman being flogged with the words "Islam will dominate the world. Freedom can go to hell."
  • There are some reports that Suhaib Webb, an imam with known ties to former Al Qaeda mastermind Anwar al Awlaki, appears to have influenced the life of Alton Nolen. Webb, who was once the leader of the Islamic Society of Greater Oklahoma City, now serves as an imam at a mosque in Boston once attended by accused Boston Marathon bombers Dzhokhar and Tamerlan Tsarnaev.
  • Possibly copying ISIS: ISIS has posted for all to see the beheadings of James Foley, Steven Sotloff, and David Haines. This gives terrorists inspiration to copy. It could be that Nolen was acting as a so-called “lone wolf”. Just last week, an ISIS leader, Abu Muhammad al-Adnani, released a recorded speech directed toward "lone wolf" operations and encouraging terrorists to act. "Do not ask for anyone's advice and do not seek anyone's verdict, kill the infidel whether he is civilian or military."
No one factor on its own necessarily spells terrorist, but when combined, you definitely have to wonder. Do you have anything else you think should be added to the list? And do you think Alton Nolen is a terrorist? You can hear my thoughts on how Nolen should be charged on the Legal Lis podcast: foxrad.io/1pGfa6P ]]>
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Legal Lis Podcast: Ray Rice and Double Jeopardy http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-ray-rice-and-double-jeopardy/ http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-ray-rice-and-double-jeopardy/#comments Fri, 26 Sep 2014 20:07:15 +0000 http://www.liswiehlbooks.com/?p=1329 RR Unless you’ve successfully avoided all types of news and gossip lately, you’ve heard about Ray Rice’s recent scandal. What’s more, you’ve probably seen the tragic video in which he punched his then-fiancé, knocking her out, and then dragged her out of an elevator. For Ray Rice – and the NFL – the release of the video footage changed everything. Seeing what he did somehow makes it more despicable, if that’s possible. Seeing it as a video outrages us and incites us to question the NFL. And seeing that video gives us something palpable to arm ourselves with when deciding how we feel about the situation. No doubt about it, Ray Rice should not be given the opportunity to play professional football again. But, legally, it’s not so clear. The first thing to understand is that NFL’s collective bargaining agreement does not have a so-called “double jeopardy” provision. What is does have is Article 46, Section 4, which states that a player cannot be disciplined twice “for the same act or conduct.” The importance of this provision really hinges on when the powers that be at the NFL had and knew about the video showing the assault. There are allegations that the surveillance video of Rice’s assault was sent to league security chief Jeffry Miller in April. There is also talk that there is a voicemail from league offices confirming receipt of said video on April 9. If this is true, then when Ray Rice was punished with a two-game suspension, that should have been the end of it. If NFL officials had already seen the video, then they knew all there was to know and had somehow decided that a two-game suspension was enough of a punishment. Under this version, you’d have to assume that once the video was leaked to the masses, the NFL reacted with an indefinite suspension to nullify the outrage. The problem here is that the two-game suspension was punishment number one. And because of Article 46, Section 4, Rice can’t be punished again for the same act or conduct. On the other hand, you have Miller saying, "I unequivocally deny that I received at any time a copy of the video and I had not watched it until it was made public on September 8.” And NFL Commissioner Roger Goodell has publicly said several times that no one in his office viewed the video until TMZ posted it on its website in September. If this is the truth, then the video brought new information to the table, and so it might be appropriate to revise the two-game suspension. Eventually, the truth will come out. We will know one way or another exactly when Goodell and company knew of the video. And this truth will likely have a huge impact on Rice’s future as a player. Which version of the story do you believe? Do you think people within the NFL saw the video before giving Rice his first punishment? Hear my thoughts in the latest Legal Lis podcast: foxrad.io/1pjtSAK ]]> http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-ray-rice-and-double-jeopardy/feed/ 1 Legal Lis Podcast: The Adrian Peterson Child Injury Case http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-the-adrian-peterson-child-injury-case/ http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-the-adrian-peterson-child-injury-case/#comments Thu, 18 Sep 2014 16:18:23 +0000 http://www.liswiehlbooks.com/?p=1319 Untitled1 In this week’s Legal Lis, one of the subjects I discussed was the recent issue involving Adrian Peterson and his method of disciplining his child. If you haven’t heard much on this story, the basic facts are as follows: Peterson, who plays for the Minnesota Vikings, has been indicted by a Texas grand jury for beating his four-year-old son with a “switch.” The incident occurred in May in Spring, Texas following an argument between Peterson’s son and another child over a video game. Peterson chalked it up to his style of parenting, simply a way to discipline his son, but the extensive injuries piqued the interest of law enforcement. According to reports and photos from the Houston Police Department, Peterson’s son received visible cuts and bruises to his back, buttocks, legs, hands and even scrotum. Because of the severity of the injuries, Peterson now faces charges of injury to a child. This case inevitably makes you wonder: To what extent should parents be permitted to discipline their children as they see fit? The emotional response is oftentimes that a parent should have a lot of freedom in doing just that, parenting. Some parents spank, some use timeouts, others take things away – each parent has a different way of enforcing rules and setting boundaries. And parents should have that right. You could argue all day that one way is better than the next, but in the end, a parent is going to raise their children (hopefully) in the way they think will result in kids who respect others and who recognize boundaries. I know good parents who spank and I know good parents who would never discipline physically – and neither method is necessarily better or worse than the other. But a problem arises when the fine line between spanking to discipline and actually beating a child is blurred. And when that line is blurred or crossed, that is precisely where the legal side of things comes in. For the most part, states tend to agree that a parent should be able to discipline a child - to a certain extent - as he or she sees fit. For example, here in New York, a “parent, guardian or other person entrusted with the care and supervision of a person under the age of twenty-one……may use physical force, but not deadly physical force, upon such person when and to the extent that he reasonably believes it necessary to maintain discipline or to promote the welfare of such person.”  And a New York court recently held that when a father spanked his child with an open hand in order to discipline the child, this was a “reasonable use of force.” A four-judge panel ruled in the unanimous decision that, “the father’s open-handed spanking of the child as a form of discipline after he heard the child curse at an adult was a reasonable use of force and, under the circumstances presented here, did not constitute excessive corporal punishment.” In California, “’serious physical harm’ does not include reasonable and age-appropriate spanking to the buttocks where there is no evidence of serious physical injury.”  And a court has recently found that a California mother who used a wooden spoon to spank her 12-year-old was not a child abuser. Laws and cases all across the U.S. support the notion that a parent can discipline their children when it’s reasonable. So what’s the big deal with Adrian Peterson? Well, primarily, it’s that his method of discipline was pretty extreme. Some would argue that the punishment went well beyond just plain maintaining discipline. The law in Texas is pretty lenient when it comes to parental discipline, stating that “the use of force, but not deadly force, against a child younger than 18 years is justified: (1) if the actor is the child's parent or stepparent or is acting in loco parentis to the child; and (2) when and to the degree the actor reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare.​” But that doesn’t mean a parent can beat a child in Texas without breaking the law. What this law clearly does is leave a lot of room for parents to decide how to discipline. What it does not do is allow a parent to beat a child and say it’s in the name of discipline after the fact. The fact that a second grand jury has indicted Peterson on a child-injury charge indicates that at least some believe he went beyond what the law allows. But Peterson maintains that his conduct was reasonable. What do you think? You can hear more of my thoughts on this issue on the Legal Lis podcast: http://foxrad.io/1pjtSAK ]]> http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-the-adrian-peterson-child-injury-case/feed/ 2 Legal Lis Podcast: Celebrity Nude Photo Hack and California’s New “Yes-Means-Yes” Bill http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-celebrity-nude-photo-hack-and-californias-new-yes-means-yes-bill/ http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-celebrity-nude-photo-hack-and-californias-new-yes-means-yes-bill/#comments Thu, 04 Sep 2014 18:22:41 +0000 http://www.liswiehlbooks.com/?p=1303 LL

In this week’s Legal Lis, I discussed many of the legal aspects related to the recently leaked nude photos of Jennifer Lawrence and other celebrities. I also talked about California’s new “Yes-Means-Yes” bill, which is related to sexual assault on college campuses. Below, I’ve included some of the legal issues that arise from these two topics as well as my thoughts. If you want to hear the full discussion, you can now listen to the Legal Lis podcast here: http://foxrad.io/1oDQawL Celebrity Nude Photo Hack: It’s hard to feel safe on the Internet. With all the hacking going on, it’s almost impossible for a person to expect that private information will, in fact, remain private. Identity theft, stolen credit card info, leaked photos, hacked emails – you don’t have to look too far to find a story that involves at least one of these issues. Enter the latest story in which several celebrities had private photos stolen and leaked to the masses. Some argue that these celebrities shouldn’t be surprised. If you have nude photos stored somewhere on the Internet, you’re exposing yourself to the possibility that these photos will end up in the wrong hands. Others think that when a person sends an intimate photo to a significant other or spouse or friend – in some way that’s intended to remain private – you should be able to expect that those photos will remain private. No matter which way you lean on this issue, there are laws that apply. One issue that has to be discussed related to this leak is what kind of liability there is for Twitter, Facebook and other sites that have or had links to the photos. Legally, the truth is that there is not much liability. Section 230 of the Communications Decency Act is a federal law that creates a lot of protection for providers of an “interactive computer service.” In fact, the law states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Case law testing the immunity of Internet service providers under Section 230 almost always goes the way of no liability. For example, in one case, the Fourth Circuit Court of Appeals found that “lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions — such as deciding whether to publish, withdraw, postpone or alter content — are barred.” The decision goes on to point out that “Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum.” This is just one of the issues that arise from the recent photo hack. You can hear more – including discussion on revenge porn and punishment for the people who actually do the hacking – on the Legal Lis podcast. What do you think: Should we expect privacy on the Internet? Should Twitter and the like be held liable? California’s “Yes-Means-Yes” Bill  The so-called “yes-means-yes” bill, which was passed unanimously by the California State Senate, would require universities in CA to adopt a standard of unambiguous consent from all parties engaging in sexual activity. The bill defines affirmative consent as an “affirmative, conscious, and voluntary agreement to engage in sexual activity” and goes on to state that it “is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity.” That someone doesn’t protest or resist does not equal consent. Neither does silence. The goal of the bill is to prevent sexual assault on campus. And with the White House reporting that 1 in 5 female college students is sexually assaulted while in college, this is a laudable and necessary goal. But some aren’t convinced the bill will achieve its goals, arguing that people who don’t get an explicit “yes” before sex will be deemed rapists even though there was, say, nonverbal affirmation. What are your thoughts: Do you think this bill is a good idea? Can it achieve its goals?   I hope you enjoy the new podcast! Every Thursday from now on, a Legal Lis podcast will be made available so you can listen to the topics I'm discussing.              ]]>
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Q&A on Police Brutality, Part II http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-the-supreme-court-denies-all-same-sex-marriage-petitions/ http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-the-supreme-court-denies-all-same-sex-marriage-petitions/#comments Fri, 10 Oct 2014 18:35:47 +0000 http://www.liswiehlbooks.com/?p=1342 SC

This week, the Supreme Court denied all seven petitions related to same-sex marriage, which may or may not come as a shock to you. You are likely to recall that in June 2013, in United States v. Windsor, the Supreme Court struck down Section 3 of the federal Defense of Marriage Act, which had defined “marriage” as a union between a man and a woman. This five-to-four decision meant that same-sex couples who were married in states where same-sex marriage was legal would have the same rights as other married couples when it came to things like, say, filing joint federal tax returns. After the Windsor case, we all knew that the same-sex marriage issue would be back in the Supreme Court. We also knew that the Court was not completely opposed to addressing the issue. So you wouldn't be totally off-base in assuming that the Supreme Court would take on at least one of these seven petitions. But, if you were really tuning in, the denial of the petitions is not all that surprising. For instance, recently, Justice Ruth Bader Ginsburg suggested that the Court might not take on the current issue because there was no disagreement among the lower courts at this point. And it seems as though her prediction was correct. But the fact that the Supreme Court has denied these petitions does not mean that there are not huge effects, so it's important to understand these cases and know what to expect in the future. To begin with, let’s look at the seven petitions the Court denied:
  • Baskin v. Bogan (Indiana): This case challenged the state's denial of marriage rights to same-sex couples. It was filed in federal district court on March 12, 2014 where Chief Judge Richard Young found for the plaintiffs. A three-judge panel of the U.S. Court of Appeals for the Seventh Circuit upheld the district court ruling in a unanimous decision on September 4. Both parties asked the Supreme Court to consider the case.
  • Walker v. Wolf (Wisconsin): This is federal lawsuit filed in February 2014 that challenged Wisconsin's refusal to grant marriage licenses to same-sex couples. In June 2014, Judge Barbara Crabb of the U.S. District Court for the Western District of Wisconsin ruled for the plaintiffs. The state appealed her decision to the Seventh Circuit Court of Appeals, which affirmed her opinion in a unanimous decision on September 4. Wisconsin asked the Supreme Court to consider the case.
  • Herbert v. Kitchen (Utah): A federal case that challenged Utah's constitutional ban on marriage for same-sex couples. Three same-sex couples filed suit in March 2013. In December 2013, the U.S. District Court for the District of Utah found the state's ban on same-sex marriage unconstitutional. In June 2014, the Tenth Circuit Court of Appeals affirmed the decision of the district court. All parties supported review by the Supreme Court.
  • McQuigg v. Bostic, Rainey v. Bostic, Schaefer v. Bostic (Virginia): A group of same-sex couples in Virginia filed suit to challenge the state’s refusal to acknowledge same-sex marriages. The Fourth Circuit Court of Appeals ruled for the plaintiffs and the case went to the Supreme Court for consideration.
  • Smith v. Bishop (Oklahoma): Two same-sex couples challenged Oklahoma's ban on same-sex marriage. In January 2014, U.S. District Court Judge Terence Kern ruled that Oklahoma's ban on same-sex marriage was unconstitutional. The Tenth Circuit Court of Appeals affirmed.
In the coming days and weeks, you can expect that same-sex marriages will be permitted when existing lower-court rulings against state bans go into effect in Indiana, Wisconsin, Utah, Virginia, and Oklahoma. Also, when the court of appeals rulings are implemented, same-sex marriages can occur in North Carolina, South Carolina and West Virginia (Fourth Circuit) and in Colorado, Kansas, and Wyoming (Tenth Circuit). And finally, four other circuits – the Fifth, Sixth, Ninth, and Eleventh – are currently considering the constitutionality of same-sex marriages. And these circuits could make decisions based on how they interpret what the Supreme Court did. Needless to say, denying the petitions has had and will have a resounding impact. You can hear my thoughts on this topic on the Legal Lis podcast: foxrad.io/1v2H4St ]]>
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Lis Wiehl Books http://www.liswiehlbooks.com FOX News Legal Analyst and Author Fri, 05 Dec 2014 20:34:01 +0000 en-US hourly 1 http://wordpress.org/?v=3.9.3 Legal Lis: Brown Family Lawyer Will Pursue “Every Legal Avenue” http://www.liswiehlbooks.com/2014/12/legal-lis-brown-family-lawyer-will-pursue-every-legal-avenue/ http://www.liswiehlbooks.com/2014/12/legal-lis-brown-family-lawyer-will-pursue-every-legal-avenue/#comments Fri, 05 Dec 2014 20:33:14 +0000 http://www.liswiehlbooks.com/?p=1367 LW

Even though a grand jury has decided not to indict Darren Wilson for the shooting of Michael Brown, that does not mean that Wilson’s time in court is over. It’s still possible that there will be federal charges, and then there’s the chance of a civil suit brought by Brown’s family. The lawyer for the Brown family recently announced that they would pursue “every legal avenue” available to them. One thing this likely means is a wrongful death suit. Missouri’s law on wrongful death says the following:
537.080. 1. Whenever the death of a person results from any act, conduct, occurrence, transaction, or circumstance which, if death had not ensued, would have entitled such person to recover damages in respect thereof, the person or party who, or the corporation which, would have been liable if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured, which damages may be sued for: (1) By the spouse or children or the surviving lineal descendants of any deceased children, natural or adopted, legitimate or illegitimate, or by the father or mother of the deceased, natural or adoptive; (2) If there be no persons in class (1) entitled to bring the action, then by the brother or sister of the deceased, or their descendants, who can establish his or her right to those damages set out in section 537.090 because of the death; (3) If there be no persons in class (1) or (2) entitled to bring the action, then by a plaintiff ad litem. Such plaintiff ad litem shall be appointed by the court having jurisdiction over the action for damages provided in this section upon application of some person entitled to share in the proceeds of such action. Such plaintiff ad litem shall be some suitable person competent to prosecute such action and whose appointment is requested on behalf of those persons entitled to share in the proceeds of such action. Such court may, in its discretion, require that such plaintiff ad litem give bond for the faithful performance of his duties.
In short, this means a wrongful death claim can be brought against a person whose negligent or intentional actions caused the death of another person. And to win a wrongful death suit, the Brown family has a much lighter burden than there would have been in a criminal case. In general, crimes must be proven beyond a reasonable doubt. In a civil wrongful death suit, though, the standard of proof is a preponderance of evidence, which basically just means that it is more likely than not that a certain thing happened. In a wrongful death suit against Darren Wilson, it would have to be shown that it is more likely than not that Wilson’s actions were responsible for Michael Brown’s death. Many watched as Prosecuting Attorney Bob McCulloch announced that there would be no indictment for Darren Wilson. We also saw the outraged reactions from protestors in and around Ferguson, Missouri. Then came Wilson’s resignation from the Ferguson Police Department. What’s next in this story has yet to be determined, but it would not be a shock to hear that the Brown family is moving forward with a wrongful death suit. What are your thoughts on the subject? Hear mine on the latest Legal Lis podcast: foxrad.io/1BdNfpQ ]]>
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Legal Lis: Delta Offers 0 Credit to Owner for Lost Dog http://www.liswiehlbooks.com/2014/11/legal-lis-delta-offers-200-credit-to-owner-for-lost-dog/ http://www.liswiehlbooks.com/2014/11/legal-lis-delta-offers-200-credit-to-owner-for-lost-dog/#comments Fri, 14 Nov 2014 20:04:09 +0000 http://www.liswiehlbooks.com/?p=1361 delta   Every time you fly, if you check your bags, you have to trust someone else to take care of and deliver your possessions. I always get more than just a little anxious at the thought of handing over clothes and the like, because a lot can go wrong. Things can be damaged, your bag can get lost, you miss a connection and the bag goes one way while you're stuck somewhere else. The possibilities are all but endless. As much as I dread the thought of losing my things, in the end, they are just things. In the grand scheme of traveling, having your bag lost or misplaced isn’t the end of the world. But what if, instead of your suitcase filled to the brim with possessions, an airline lost your dog? This is what happened to one recent traveler. Frank Romano boarded a Delta flight from California to Florida after handing over his pit bull, Ty, to travel in a kennel. Before the flight left, though, Frank was told that Ty had chewed his way out of the kennel and was lost. Delta claims to be doing all things possible to find Ty and the airline has offered Frank a 0 credit for future travel. No, that is not a typographical error. A dog is missing and Delta has offered only 0 in consolation. How can this be? Is Delta liable for the loss of the dog? If so, for how much? These are all the questions that flooded my head as I read about Frank and Ty. If you’re just as curious, here are a few answers:
  • Yes, airlines are liable for lost or damaged baggage, which includes a dog. Airlines limit their liability and must meet a minimum that is set by the federal government. Currently, the minimum dollar amount airlines can establish to compensate for lost, delayed and damaged baggage on domestic flights is ,400.
  • A quick check of Delta's policy on baggage liability reveals that the airline has gone with the minimum.
  • Passengers may declare a higher value for their baggage, making an airline liable for more than the minimum, but said passenger must do so before the flight and must pay a fee.
  • A passenger can challenge the liability limit. In general, though, as long as the passenger had notice of the limit and an opportunity to declare a higher value for that baggage, the limit will hold up in court.
As far as I can tell, Frank did not declare a higher value, so it looks like any liability for his missing dog would be capped at ,400. And case law has tended to stand by an airline's minimum liability. For example, in 1983, Thomas Deiro shipped nine racing greyhounds by air from Portland to Boston. During a layover in Dallas, the airline left the dogs in their cages in 97° heat. Seven of the dogs died, and two were injured. Deiro sued American Airlines for 0,000, but the court only awarded him 0, which was the liability limit at the time. The court reasoned that as an experienced traveler, Deiro should have declared a higher value for his dogs. In its decision, the court stated, "We find it difficult to imagine how any passenger with Deiro's experience, planning to check a quarter of a million dollars worth of baggage, could have had more opportunity or incentive to familiarize himself with the baggage liability provisions." In sum, airlines have a long and protected history in limiting their liability. Nevertheless, here’s hoping that Ty and Frank are reunited soon. You can hear more of my thoughts on this topic on the Legal Lis podcast: foxrad.io/1xhHHJd   ]]>
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Legal Lis: Homeowners Association Battles with an Elderly Veteran over a Flagpole http://www.liswiehlbooks.com/2014/11/legal-lis-homeowners-association-battles-with-an-elderly-veteran-over-a-flagpole/ http://www.liswiehlbooks.com/2014/11/legal-lis-homeowners-association-battles-with-an-elderly-veteran-over-a-flagpole/#comments Mon, 03 Nov 2014 14:37:16 +0000 http://www.liswiehlbooks.com/?p=1354 Lis

An 82-year-old man and his wife have recently been fielding letters from their homeowners association related to the flagpole they have in their front yard. The couple was first told in September that their flagpole should be removed from the front yard because it was not mounted to their home. But Bob Willits, who served four years during the Korean War, and his wife, Judy, are fighting the requests from the Fieldstone Homeowners Association. At first blush, it’s hard for me to imagine why a homeowners association would be so set on fighting a flagpole. As far as I can tell, it isn’t blocking a public sidewalk, it’s not endangering people in the neighborhood, and there’s nothing obscene of offensive being flown from the flagpole. No, it’s seems to be just two people intent on expressing their patriotism. Beyond this, though, there’s also the fact that there’s something called the Freedom to Display the American Flag Act of 2005, which intends to prevent the likes of a homeowners association from restricting homeowners when it comes to displaying the U.S. flag on their property. For the legally inclined, here’s the text of the American Flag Act:
SECTION 1. SHORT TITLE. This Act may be cited as the `Freedom to Display the American Flag Act of 2005'. SEC. 2. DEFINITIONS. For purposes of this Act-- 1. the term `flag of the United States' has the meaning given the term `flag, standard, colors, or ensign' under section 3 of title 4, United States Code; 2. the terms `condominium association' and `cooperative association' have the meanings given such terms under section 604 of Public Law 96-399 (15 U.S.C. 3603); 3. the term `residential real estate management association' has the meaning given such term under section 528 of the Internal Revenue Code of 1986 (26 U.S.C. 528); and 4. the term `member'--
(A) as used with respect to a condominium association, means an owner of a condominium unit (as defined under section 604 of Public Law 96-399 (15 U.S.C. 3603)) within such association; (B) as used with respect to a cooperative association, means a cooperative unit owner (as defined under section 604 of Public Law 96-399 (15 U.S.C. 3603)) within such association; and (C) as used with respect to a residential real estate management association, means an owner of a residential property within a subdivision, development, or similar area subject to any policy or restriction adopted by such association.
 SEC. 3. RIGHT TO DISPLAY THE FLAG OF THE UNITED STATES. A condominium association, cooperative association, or residential real estate management association may not adopt or enforce any policy, or enter into any agreement, that would restrict or prevent a member of the association from displaying the flag of the United States on residential property within the association with respect to which such member has a separate ownership interest or a right to exclusive possession or use. SEC. 4. LIMITATIONS. Nothing in this Act shall be considered to permit any display or use that is inconsistent with-- 1. any provision of chapter 1 of title 4, United States Code, or any rule or custom pertaining to the proper display or use of the flag of the United States (as established pursuant to such chapter or any otherwise applicable provision of law); or 2. any reasonable restriction pertaining to the time, place, or manner of displaying the flag of the United States necessary to protect a substantial interest of the condominium association, cooperative association, or residential real estate management association.
According to the homeowners association, it has authority to request the removal of the flagpole under Section 4, Part 2. Evidently, it believes that it has a substantial interest in restricting the “time, place, or manner” of the Willits’ flagpole. What do you think? Does the Homeowners Association have the right to make this request? Is there a substantial interest? Hear my thoughts on the Legal Lis podcast: http://foxrad.io/1zKC1Jn ]]>
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Legal Lis Podcast: Thomas Eric Duncan’s Family Eyes Lawsuit http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-thomas-eric-duncans-family-eyes-lawsuit/ http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-thomas-eric-duncans-family-eyes-lawsuit/#comments Fri, 17 Oct 2014 21:17:45 +0000 http://www.liswiehlbooks.com/?p=1347 TD

No doubt you’ve heard of Thomas Duncan, that he was the first person to be diagnosed with Ebola on United States soil, and that he died from the disease on October 8, 2014 at Texas Health Presbyterian Hospital. There’s certainly more to the story, though, like the suggestion that he lied to airport screeners in Liberia in order to come to the United States. What’s known is that he helped a pregnant woman in Liberia who was infected with Ebola. What some say is not so clear is whether or not he had reason to believe he might be infected when he boarded a plane to come the U.S. Another huge part of the story is what happened once he got here. He went to Texas Health Presbyterian Hospital with a fever shortly after arriving from Liberia. The story goes that he mentioned that he had been to Liberia but that information was not properly relayed to the appropriate people. And so, he was sent home with some antibiotics. Two days later, he returned to the hospital in an ambulance and this time, proper precautions were taken and he was isolated. Shortly thereafter, he died. So far, two of the nurses involved in the treatment of Duncan have been diagnosed with Ebola. And many others are being monitored. The short of it is that Ebola is not just a story we observe from afar anymore. It’s here, in our own backyard, so to speak. And now, there is talk of a lawsuit brought by Duncan’s family against the hospital related to his treatment. So what we’re talking about is a potential medical malpractice lawsuit. In general, medical malpractice occurs when a doctor or medical professional fails to competently perform his or her duties. In other words, the doctor or medical professional was negligent in relation to his or her treatment of a patient. In Texas, the statute related to medical malpractice sets an extremely high bar when it comes to proving that there was medical malpractice. For the mildly curious, the gist of the law is that it must be proven that doctors were “wilfully or wantonly negligent.” For the extremely curious, the laws says the following:
Sec. 74.151. LIABILITY FOR EMERGENCY CARE (a) A person who in good faith administers emergency care is not liable in civil damages for an act performed during the emergency unless the act is wilfully or wantonly negligent, including a person who:

(1) administers emergency care using an automated external defibrillator; or

(2) administers emergency care as a volunteer who is a first responder as the term is defined under Section 421.095, Government Code.

(b) This section does not apply to care administered:

(1) for or in expectation of remuneration, provided that being legally entitled to receive remuneration for the emergency care rendered shall not determine whether or not the care was administered for or in anticipation of remuneration; or

(2) by a person who was at the scene of the emergency because he or a person he represents as an agent was soliciting business or seeking to perform a service for remuneration.

(c), (d) Deleted by Acts 2003, 78th Leg., ch. 204, Sec. 10.01. (e) Except as provided by this subsection, this section does not apply to a person whose negligent act or omission was a producing cause of the emergency for which care is being administered. This subsection does not apply to liability of a school district or district school officer or employee arising from an act or omission under a program or policy or procedure adopted under Subchapter O-1, Chapter 161, Health and Safety Code, other than liability arising from wilful or intentional misconduct.
So, are we talking about doctors and medical professionals who were “wilfully and wantonly” negligent? Yes, Duncan was initially released from the hospital with a fever of 103 and had relayed the fact that he had been in Liberia. Yes, the hospital made a few missteps. But, under Texas law, it’s going to be a really tough case to prove. What are your thoughts on Thomas Duncan and the possibility of a lawsuit brought by his family? You can hear more of my thoughts on the Legal Lis podcast: foxrad.io/1w3mnns ]]>
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Legal Lis Podcast: The Supreme Court Denies All Same-Sex Marriage Petitions http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-the-supreme-court-denies-all-same-sex-marriage-petitions/ http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-the-supreme-court-denies-all-same-sex-marriage-petitions/#comments Fri, 10 Oct 2014 18:35:47 +0000 http://www.liswiehlbooks.com/?p=1342 SC

This week, the Supreme Court denied all seven petitions related to same-sex marriage, which may or may not come as a shock to you. You are likely to recall that in June 2013, in United States v. Windsor, the Supreme Court struck down Section 3 of the federal Defense of Marriage Act, which had defined “marriage” as a union between a man and a woman. This five-to-four decision meant that same-sex couples who were married in states where same-sex marriage was legal would have the same rights as other married couples when it came to things like, say, filing joint federal tax returns. After the Windsor case, we all knew that the same-sex marriage issue would be back in the Supreme Court. We also knew that the Court was not completely opposed to addressing the issue. So you wouldn't be totally off-base in assuming that the Supreme Court would take on at least one of these seven petitions. But, if you were really tuning in, the denial of the petitions is not all that surprising. For instance, recently, Justice Ruth Bader Ginsburg suggested that the Court might not take on the current issue because there was no disagreement among the lower courts at this point. And it seems as though her prediction was correct. But the fact that the Supreme Court has denied these petitions does not mean that there are not huge effects, so it's important to understand these cases and know what to expect in the future. To begin with, let’s look at the seven petitions the Court denied:
  • Baskin v. Bogan (Indiana): This case challenged the state's denial of marriage rights to same-sex couples. It was filed in federal district court on March 12, 2014 where Chief Judge Richard Young found for the plaintiffs. A three-judge panel of the U.S. Court of Appeals for the Seventh Circuit upheld the district court ruling in a unanimous decision on September 4. Both parties asked the Supreme Court to consider the case.
  • Walker v. Wolf (Wisconsin): This is federal lawsuit filed in February 2014 that challenged Wisconsin's refusal to grant marriage licenses to same-sex couples. In June 2014, Judge Barbara Crabb of the U.S. District Court for the Western District of Wisconsin ruled for the plaintiffs. The state appealed her decision to the Seventh Circuit Court of Appeals, which affirmed her opinion in a unanimous decision on September 4. Wisconsin asked the Supreme Court to consider the case.
  • Herbert v. Kitchen (Utah): A federal case that challenged Utah's constitutional ban on marriage for same-sex couples. Three same-sex couples filed suit in March 2013. In December 2013, the U.S. District Court for the District of Utah found the state's ban on same-sex marriage unconstitutional. In June 2014, the Tenth Circuit Court of Appeals affirmed the decision of the district court. All parties supported review by the Supreme Court.
  • McQuigg v. Bostic, Rainey v. Bostic, Schaefer v. Bostic (Virginia): A group of same-sex couples in Virginia filed suit to challenge the state’s refusal to acknowledge same-sex marriages. The Fourth Circuit Court of Appeals ruled for the plaintiffs and the case went to the Supreme Court for consideration.
  • Smith v. Bishop (Oklahoma): Two same-sex couples challenged Oklahoma's ban on same-sex marriage. In January 2014, U.S. District Court Judge Terence Kern ruled that Oklahoma's ban on same-sex marriage was unconstitutional. The Tenth Circuit Court of Appeals affirmed.
In the coming days and weeks, you can expect that same-sex marriages will be permitted when existing lower-court rulings against state bans go into effect in Indiana, Wisconsin, Utah, Virginia, and Oklahoma. Also, when the court of appeals rulings are implemented, same-sex marriages can occur in North Carolina, South Carolina and West Virginia (Fourth Circuit) and in Colorado, Kansas, and Wyoming (Tenth Circuit). And finally, four other circuits – the Fifth, Sixth, Ninth, and Eleventh – are currently considering the constitutionality of same-sex marriages. And these circuits could make decisions based on how they interpret what the Supreme Court did. Needless to say, denying the petitions has had and will have a resounding impact. You can hear my thoughts on this topic on the Legal Lis podcast: foxrad.io/1v2H4St ]]>
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Legal Lis Podcast: Is Alton Nolen a Terrorist? http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-is-alton-nolen-a-terrorist/ http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-is-alton-nolen-a-terrorist/#comments Fri, 03 Oct 2014 17:48:29 +0000 http://www.liswiehlbooks.com/?p=1337 LL

Colleen Hufford was beheaded by 30- year-old Alton Nolen during a gruesome attack at a Vaughan Foods plant in Oklahoma. Nolen was also able to repeatedly stab another victim, Traci Johnson, before he was shot by the company's CEO, Mark Vaughan, who is also a reserve deputy sheriff. Nolen had been suspended from the company just before he went into Vaughan’s administrative office and attacked the women. Cleveland County prosecutor Greg Mashburn said on Tuesday, 09/30/14, that Nolen will be charged with first-degree murder as well as assault charges. The good news is that first-degree murder in Oklahoma can result in the death penalty. And it’s not unlikely that this would be Nolen’s fate. But some aren’t satisfied, saying that Nolen is a terrorist and should be charged as such. Before I voiced an opinion one way or the other, I wanted to do a little digging of my own. In essence, I wanted a list of all of the things that point to charging Nolen as a terrorist. Here’s what I’ve come up with:
  • Nolen recently converted to Islam and reportedly tried to convert co-workers to Islam.
  • Nolen used Arabic terms during his attack.
  • On his Facebook account, Nolen posted photos of Osama bin Laden, other jihadis, and the Twin Towers burning.
  • His Facebook account also included a very graphic photo of a beheaded victim.
  • He reportedly wrote the following on his Facebook: "She (the Statue of Liberty) is going into flames. She and anybody who's with her."
  • He posted photos of a woman being flogged with the words "Islam will dominate the world. Freedom can go to hell."
  • There are some reports that Suhaib Webb, an imam with known ties to former Al Qaeda mastermind Anwar al Awlaki, appears to have influenced the life of Alton Nolen. Webb, who was once the leader of the Islamic Society of Greater Oklahoma City, now serves as an imam at a mosque in Boston once attended by accused Boston Marathon bombers Dzhokhar and Tamerlan Tsarnaev.
  • Possibly copying ISIS: ISIS has posted for all to see the beheadings of James Foley, Steven Sotloff, and David Haines. This gives terrorists inspiration to copy. It could be that Nolen was acting as a so-called “lone wolf”. Just last week, an ISIS leader, Abu Muhammad al-Adnani, released a recorded speech directed toward "lone wolf" operations and encouraging terrorists to act. "Do not ask for anyone's advice and do not seek anyone's verdict, kill the infidel whether he is civilian or military."
No one factor on its own necessarily spells terrorist, but when combined, you definitely have to wonder. Do you have anything else you think should be added to the list? And do you think Alton Nolen is a terrorist? You can hear my thoughts on how Nolen should be charged on the Legal Lis podcast: foxrad.io/1pGfa6P ]]>
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Legal Lis Podcast: Ray Rice and Double Jeopardy http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-ray-rice-and-double-jeopardy/ http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-ray-rice-and-double-jeopardy/#comments Fri, 26 Sep 2014 20:07:15 +0000 http://www.liswiehlbooks.com/?p=1329 RR Unless you’ve successfully avoided all types of news and gossip lately, you’ve heard about Ray Rice’s recent scandal. What’s more, you’ve probably seen the tragic video in which he punched his then-fiancé, knocking her out, and then dragged her out of an elevator. For Ray Rice – and the NFL – the release of the video footage changed everything. Seeing what he did somehow makes it more despicable, if that’s possible. Seeing it as a video outrages us and incites us to question the NFL. And seeing that video gives us something palpable to arm ourselves with when deciding how we feel about the situation. No doubt about it, Ray Rice should not be given the opportunity to play professional football again. But, legally, it’s not so clear. The first thing to understand is that NFL’s collective bargaining agreement does not have a so-called “double jeopardy” provision. What is does have is Article 46, Section 4, which states that a player cannot be disciplined twice “for the same act or conduct.” The importance of this provision really hinges on when the powers that be at the NFL had and knew about the video showing the assault. There are allegations that the surveillance video of Rice’s assault was sent to league security chief Jeffry Miller in April. There is also talk that there is a voicemail from league offices confirming receipt of said video on April 9. If this is true, then when Ray Rice was punished with a two-game suspension, that should have been the end of it. If NFL officials had already seen the video, then they knew all there was to know and had somehow decided that a two-game suspension was enough of a punishment. Under this version, you’d have to assume that once the video was leaked to the masses, the NFL reacted with an indefinite suspension to nullify the outrage. The problem here is that the two-game suspension was punishment number one. And because of Article 46, Section 4, Rice can’t be punished again for the same act or conduct. On the other hand, you have Miller saying, "I unequivocally deny that I received at any time a copy of the video and I had not watched it until it was made public on September 8.” And NFL Commissioner Roger Goodell has publicly said several times that no one in his office viewed the video until TMZ posted it on its website in September. If this is the truth, then the video brought new information to the table, and so it might be appropriate to revise the two-game suspension. Eventually, the truth will come out. We will know one way or another exactly when Goodell and company knew of the video. And this truth will likely have a huge impact on Rice’s future as a player. Which version of the story do you believe? Do you think people within the NFL saw the video before giving Rice his first punishment? Hear my thoughts in the latest Legal Lis podcast: foxrad.io/1pjtSAK ]]> http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-ray-rice-and-double-jeopardy/feed/ 1 Legal Lis Podcast: The Adrian Peterson Child Injury Case http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-the-adrian-peterson-child-injury-case/ http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-the-adrian-peterson-child-injury-case/#comments Thu, 18 Sep 2014 16:18:23 +0000 http://www.liswiehlbooks.com/?p=1319 Untitled1 In this week’s Legal Lis, one of the subjects I discussed was the recent issue involving Adrian Peterson and his method of disciplining his child. If you haven’t heard much on this story, the basic facts are as follows: Peterson, who plays for the Minnesota Vikings, has been indicted by a Texas grand jury for beating his four-year-old son with a “switch.” The incident occurred in May in Spring, Texas following an argument between Peterson’s son and another child over a video game. Peterson chalked it up to his style of parenting, simply a way to discipline his son, but the extensive injuries piqued the interest of law enforcement. According to reports and photos from the Houston Police Department, Peterson’s son received visible cuts and bruises to his back, buttocks, legs, hands and even scrotum. Because of the severity of the injuries, Peterson now faces charges of injury to a child. This case inevitably makes you wonder: To what extent should parents be permitted to discipline their children as they see fit? The emotional response is oftentimes that a parent should have a lot of freedom in doing just that, parenting. Some parents spank, some use timeouts, others take things away – each parent has a different way of enforcing rules and setting boundaries. And parents should have that right. You could argue all day that one way is better than the next, but in the end, a parent is going to raise their children (hopefully) in the way they think will result in kids who respect others and who recognize boundaries. I know good parents who spank and I know good parents who would never discipline physically – and neither method is necessarily better or worse than the other. But a problem arises when the fine line between spanking to discipline and actually beating a child is blurred. And when that line is blurred or crossed, that is precisely where the legal side of things comes in. For the most part, states tend to agree that a parent should be able to discipline a child - to a certain extent - as he or she sees fit. For example, here in New York, a “parent, guardian or other person entrusted with the care and supervision of a person under the age of twenty-one……may use physical force, but not deadly physical force, upon such person when and to the extent that he reasonably believes it necessary to maintain discipline or to promote the welfare of such person.”  And a New York court recently held that when a father spanked his child with an open hand in order to discipline the child, this was a “reasonable use of force.” A four-judge panel ruled in the unanimous decision that, “the father’s open-handed spanking of the child as a form of discipline after he heard the child curse at an adult was a reasonable use of force and, under the circumstances presented here, did not constitute excessive corporal punishment.” In California, “’serious physical harm’ does not include reasonable and age-appropriate spanking to the buttocks where there is no evidence of serious physical injury.”  And a court has recently found that a California mother who used a wooden spoon to spank her 12-year-old was not a child abuser. Laws and cases all across the U.S. support the notion that a parent can discipline their children when it’s reasonable. So what’s the big deal with Adrian Peterson? Well, primarily, it’s that his method of discipline was pretty extreme. Some would argue that the punishment went well beyond just plain maintaining discipline. The law in Texas is pretty lenient when it comes to parental discipline, stating that “the use of force, but not deadly force, against a child younger than 18 years is justified: (1) if the actor is the child's parent or stepparent or is acting in loco parentis to the child; and (2) when and to the degree the actor reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare.​” But that doesn’t mean a parent can beat a child in Texas without breaking the law. What this law clearly does is leave a lot of room for parents to decide how to discipline. What it does not do is allow a parent to beat a child and say it’s in the name of discipline after the fact. The fact that a second grand jury has indicted Peterson on a child-injury charge indicates that at least some believe he went beyond what the law allows. But Peterson maintains that his conduct was reasonable. What do you think? You can hear more of my thoughts on this issue on the Legal Lis podcast: http://foxrad.io/1pjtSAK ]]> http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-the-adrian-peterson-child-injury-case/feed/ 2 Legal Lis Podcast: Celebrity Nude Photo Hack and California’s New “Yes-Means-Yes” Bill http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-celebrity-nude-photo-hack-and-californias-new-yes-means-yes-bill/ http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-celebrity-nude-photo-hack-and-californias-new-yes-means-yes-bill/#comments Thu, 04 Sep 2014 18:22:41 +0000 http://www.liswiehlbooks.com/?p=1303 LL

In this week’s Legal Lis, I discussed many of the legal aspects related to the recently leaked nude photos of Jennifer Lawrence and other celebrities. I also talked about California’s new “Yes-Means-Yes” bill, which is related to sexual assault on college campuses. Below, I’ve included some of the legal issues that arise from these two topics as well as my thoughts. If you want to hear the full discussion, you can now listen to the Legal Lis podcast here: http://foxrad.io/1oDQawL Celebrity Nude Photo Hack: It’s hard to feel safe on the Internet. With all the hacking going on, it’s almost impossible for a person to expect that private information will, in fact, remain private. Identity theft, stolen credit card info, leaked photos, hacked emails – you don’t have to look too far to find a story that involves at least one of these issues. Enter the latest story in which several celebrities had private photos stolen and leaked to the masses. Some argue that these celebrities shouldn’t be surprised. If you have nude photos stored somewhere on the Internet, you’re exposing yourself to the possibility that these photos will end up in the wrong hands. Others think that when a person sends an intimate photo to a significant other or spouse or friend – in some way that’s intended to remain private – you should be able to expect that those photos will remain private. No matter which way you lean on this issue, there are laws that apply. One issue that has to be discussed related to this leak is what kind of liability there is for Twitter, Facebook and other sites that have or had links to the photos. Legally, the truth is that there is not much liability. Section 230 of the Communications Decency Act is a federal law that creates a lot of protection for providers of an “interactive computer service.” In fact, the law states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Case law testing the immunity of Internet service providers under Section 230 almost always goes the way of no liability. For example, in one case, the Fourth Circuit Court of Appeals found that “lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions — such as deciding whether to publish, withdraw, postpone or alter content — are barred.” The decision goes on to point out that “Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum.” This is just one of the issues that arise from the recent photo hack. You can hear more – including discussion on revenge porn and punishment for the people who actually do the hacking – on the Legal Lis podcast. What do you think: Should we expect privacy on the Internet? Should Twitter and the like be held liable? California’s “Yes-Means-Yes” Bill  The so-called “yes-means-yes” bill, which was passed unanimously by the California State Senate, would require universities in CA to adopt a standard of unambiguous consent from all parties engaging in sexual activity. The bill defines affirmative consent as an “affirmative, conscious, and voluntary agreement to engage in sexual activity” and goes on to state that it “is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity.” That someone doesn’t protest or resist does not equal consent. Neither does silence. The goal of the bill is to prevent sexual assault on campus. And with the White House reporting that 1 in 5 female college students is sexually assaulted while in college, this is a laudable and necessary goal. But some aren’t convinced the bill will achieve its goals, arguing that people who don’t get an explicit “yes” before sex will be deemed rapists even though there was, say, nonverbal affirmation. What are your thoughts: Do you think this bill is a good idea? Can it achieve its goals?   I hope you enjoy the new podcast! Every Thursday from now on, a Legal Lis podcast will be made available so you can listen to the topics I'm discussing.              ]]>
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Q&A on Police Brutality, Part II http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-is-alton-nolen-a-terrorist/ http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-is-alton-nolen-a-terrorist/#comments Fri, 03 Oct 2014 17:48:29 +0000 http://www.liswiehlbooks.com/?p=1337 LL

Colleen Hufford was beheaded by 30- year-old Alton Nolen during a gruesome attack at a Vaughan Foods plant in Oklahoma. Nolen was also able to repeatedly stab another victim, Traci Johnson, before he was shot by the company's CEO, Mark Vaughan, who is also a reserve deputy sheriff. Nolen had been suspended from the company just before he went into Vaughan’s administrative office and attacked the women. Cleveland County prosecutor Greg Mashburn said on Tuesday, 09/30/14, that Nolen will be charged with first-degree murder as well as assault charges. The good news is that first-degree murder in Oklahoma can result in the death penalty. And it’s not unlikely that this would be Nolen’s fate. But some aren’t satisfied, saying that Nolen is a terrorist and should be charged as such. Before I voiced an opinion one way or the other, I wanted to do a little digging of my own. In essence, I wanted a list of all of the things that point to charging Nolen as a terrorist. Here’s what I’ve come up with:
  • Nolen recently converted to Islam and reportedly tried to convert co-workers to Islam.
  • Nolen used Arabic terms during his attack.
  • On his Facebook account, Nolen posted photos of Osama bin Laden, other jihadis, and the Twin Towers burning.
  • His Facebook account also included a very graphic photo of a beheaded victim.
  • He reportedly wrote the following on his Facebook: "She (the Statue of Liberty) is going into flames. She and anybody who's with her."
  • He posted photos of a woman being flogged with the words "Islam will dominate the world. Freedom can go to hell."
  • There are some reports that Suhaib Webb, an imam with known ties to former Al Qaeda mastermind Anwar al Awlaki, appears to have influenced the life of Alton Nolen. Webb, who was once the leader of the Islamic Society of Greater Oklahoma City, now serves as an imam at a mosque in Boston once attended by accused Boston Marathon bombers Dzhokhar and Tamerlan Tsarnaev.
  • Possibly copying ISIS: ISIS has posted for all to see the beheadings of James Foley, Steven Sotloff, and David Haines. This gives terrorists inspiration to copy. It could be that Nolen was acting as a so-called “lone wolf”. Just last week, an ISIS leader, Abu Muhammad al-Adnani, released a recorded speech directed toward "lone wolf" operations and encouraging terrorists to act. "Do not ask for anyone's advice and do not seek anyone's verdict, kill the infidel whether he is civilian or military."
No one factor on its own necessarily spells terrorist, but when combined, you definitely have to wonder. Do you have anything else you think should be added to the list? And do you think Alton Nolen is a terrorist? You can hear my thoughts on how Nolen should be charged on the Legal Lis podcast: foxrad.io/1pGfa6P ]]>
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Lis Wiehl Books http://www.liswiehlbooks.com FOX News Legal Analyst and Author Fri, 05 Dec 2014 20:34:01 +0000 en-US hourly 1 http://wordpress.org/?v=3.9.3 Legal Lis: Brown Family Lawyer Will Pursue “Every Legal Avenue” http://www.liswiehlbooks.com/2014/12/legal-lis-brown-family-lawyer-will-pursue-every-legal-avenue/ http://www.liswiehlbooks.com/2014/12/legal-lis-brown-family-lawyer-will-pursue-every-legal-avenue/#comments Fri, 05 Dec 2014 20:33:14 +0000 http://www.liswiehlbooks.com/?p=1367 LW

Even though a grand jury has decided not to indict Darren Wilson for the shooting of Michael Brown, that does not mean that Wilson’s time in court is over. It’s still possible that there will be federal charges, and then there’s the chance of a civil suit brought by Brown’s family. The lawyer for the Brown family recently announced that they would pursue “every legal avenue” available to them. One thing this likely means is a wrongful death suit. Missouri’s law on wrongful death says the following:
537.080. 1. Whenever the death of a person results from any act, conduct, occurrence, transaction, or circumstance which, if death had not ensued, would have entitled such person to recover damages in respect thereof, the person or party who, or the corporation which, would have been liable if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured, which damages may be sued for: (1) By the spouse or children or the surviving lineal descendants of any deceased children, natural or adopted, legitimate or illegitimate, or by the father or mother of the deceased, natural or adoptive; (2) If there be no persons in class (1) entitled to bring the action, then by the brother or sister of the deceased, or their descendants, who can establish his or her right to those damages set out in section 537.090 because of the death; (3) If there be no persons in class (1) or (2) entitled to bring the action, then by a plaintiff ad litem. Such plaintiff ad litem shall be appointed by the court having jurisdiction over the action for damages provided in this section upon application of some person entitled to share in the proceeds of such action. Such plaintiff ad litem shall be some suitable person competent to prosecute such action and whose appointment is requested on behalf of those persons entitled to share in the proceeds of such action. Such court may, in its discretion, require that such plaintiff ad litem give bond for the faithful performance of his duties.
In short, this means a wrongful death claim can be brought against a person whose negligent or intentional actions caused the death of another person. And to win a wrongful death suit, the Brown family has a much lighter burden than there would have been in a criminal case. In general, crimes must be proven beyond a reasonable doubt. In a civil wrongful death suit, though, the standard of proof is a preponderance of evidence, which basically just means that it is more likely than not that a certain thing happened. In a wrongful death suit against Darren Wilson, it would have to be shown that it is more likely than not that Wilson’s actions were responsible for Michael Brown’s death. Many watched as Prosecuting Attorney Bob McCulloch announced that there would be no indictment for Darren Wilson. We also saw the outraged reactions from protestors in and around Ferguson, Missouri. Then came Wilson’s resignation from the Ferguson Police Department. What’s next in this story has yet to be determined, but it would not be a shock to hear that the Brown family is moving forward with a wrongful death suit. What are your thoughts on the subject? Hear mine on the latest Legal Lis podcast: foxrad.io/1BdNfpQ ]]>
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Legal Lis: Delta Offers 0 Credit to Owner for Lost Dog http://www.liswiehlbooks.com/2014/11/legal-lis-delta-offers-200-credit-to-owner-for-lost-dog/ http://www.liswiehlbooks.com/2014/11/legal-lis-delta-offers-200-credit-to-owner-for-lost-dog/#comments Fri, 14 Nov 2014 20:04:09 +0000 http://www.liswiehlbooks.com/?p=1361 delta   Every time you fly, if you check your bags, you have to trust someone else to take care of and deliver your possessions. I always get more than just a little anxious at the thought of handing over clothes and the like, because a lot can go wrong. Things can be damaged, your bag can get lost, you miss a connection and the bag goes one way while you're stuck somewhere else. The possibilities are all but endless. As much as I dread the thought of losing my things, in the end, they are just things. In the grand scheme of traveling, having your bag lost or misplaced isn’t the end of the world. But what if, instead of your suitcase filled to the brim with possessions, an airline lost your dog? This is what happened to one recent traveler. Frank Romano boarded a Delta flight from California to Florida after handing over his pit bull, Ty, to travel in a kennel. Before the flight left, though, Frank was told that Ty had chewed his way out of the kennel and was lost. Delta claims to be doing all things possible to find Ty and the airline has offered Frank a 0 credit for future travel. No, that is not a typographical error. A dog is missing and Delta has offered only 0 in consolation. How can this be? Is Delta liable for the loss of the dog? If so, for how much? These are all the questions that flooded my head as I read about Frank and Ty. If you’re just as curious, here are a few answers:
  • Yes, airlines are liable for lost or damaged baggage, which includes a dog. Airlines limit their liability and must meet a minimum that is set by the federal government. Currently, the minimum dollar amount airlines can establish to compensate for lost, delayed and damaged baggage on domestic flights is ,400.
  • A quick check of Delta's policy on baggage liability reveals that the airline has gone with the minimum.
  • Passengers may declare a higher value for their baggage, making an airline liable for more than the minimum, but said passenger must do so before the flight and must pay a fee.
  • A passenger can challenge the liability limit. In general, though, as long as the passenger had notice of the limit and an opportunity to declare a higher value for that baggage, the limit will hold up in court.
As far as I can tell, Frank did not declare a higher value, so it looks like any liability for his missing dog would be capped at ,400. And case law has tended to stand by an airline's minimum liability. For example, in 1983, Thomas Deiro shipped nine racing greyhounds by air from Portland to Boston. During a layover in Dallas, the airline left the dogs in their cages in 97° heat. Seven of the dogs died, and two were injured. Deiro sued American Airlines for 0,000, but the court only awarded him 0, which was the liability limit at the time. The court reasoned that as an experienced traveler, Deiro should have declared a higher value for his dogs. In its decision, the court stated, "We find it difficult to imagine how any passenger with Deiro's experience, planning to check a quarter of a million dollars worth of baggage, could have had more opportunity or incentive to familiarize himself with the baggage liability provisions." In sum, airlines have a long and protected history in limiting their liability. Nevertheless, here’s hoping that Ty and Frank are reunited soon. You can hear more of my thoughts on this topic on the Legal Lis podcast: foxrad.io/1xhHHJd   ]]>
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Legal Lis: Homeowners Association Battles with an Elderly Veteran over a Flagpole http://www.liswiehlbooks.com/2014/11/legal-lis-homeowners-association-battles-with-an-elderly-veteran-over-a-flagpole/ http://www.liswiehlbooks.com/2014/11/legal-lis-homeowners-association-battles-with-an-elderly-veteran-over-a-flagpole/#comments Mon, 03 Nov 2014 14:37:16 +0000 http://www.liswiehlbooks.com/?p=1354 Lis

An 82-year-old man and his wife have recently been fielding letters from their homeowners association related to the flagpole they have in their front yard. The couple was first told in September that their flagpole should be removed from the front yard because it was not mounted to their home. But Bob Willits, who served four years during the Korean War, and his wife, Judy, are fighting the requests from the Fieldstone Homeowners Association. At first blush, it’s hard for me to imagine why a homeowners association would be so set on fighting a flagpole. As far as I can tell, it isn’t blocking a public sidewalk, it’s not endangering people in the neighborhood, and there’s nothing obscene of offensive being flown from the flagpole. No, it’s seems to be just two people intent on expressing their patriotism. Beyond this, though, there’s also the fact that there’s something called the Freedom to Display the American Flag Act of 2005, which intends to prevent the likes of a homeowners association from restricting homeowners when it comes to displaying the U.S. flag on their property. For the legally inclined, here’s the text of the American Flag Act:
SECTION 1. SHORT TITLE. This Act may be cited as the `Freedom to Display the American Flag Act of 2005'. SEC. 2. DEFINITIONS. For purposes of this Act-- 1. the term `flag of the United States' has the meaning given the term `flag, standard, colors, or ensign' under section 3 of title 4, United States Code; 2. the terms `condominium association' and `cooperative association' have the meanings given such terms under section 604 of Public Law 96-399 (15 U.S.C. 3603); 3. the term `residential real estate management association' has the meaning given such term under section 528 of the Internal Revenue Code of 1986 (26 U.S.C. 528); and 4. the term `member'--
(A) as used with respect to a condominium association, means an owner of a condominium unit (as defined under section 604 of Public Law 96-399 (15 U.S.C. 3603)) within such association; (B) as used with respect to a cooperative association, means a cooperative unit owner (as defined under section 604 of Public Law 96-399 (15 U.S.C. 3603)) within such association; and (C) as used with respect to a residential real estate management association, means an owner of a residential property within a subdivision, development, or similar area subject to any policy or restriction adopted by such association.
 SEC. 3. RIGHT TO DISPLAY THE FLAG OF THE UNITED STATES. A condominium association, cooperative association, or residential real estate management association may not adopt or enforce any policy, or enter into any agreement, that would restrict or prevent a member of the association from displaying the flag of the United States on residential property within the association with respect to which such member has a separate ownership interest or a right to exclusive possession or use. SEC. 4. LIMITATIONS. Nothing in this Act shall be considered to permit any display or use that is inconsistent with-- 1. any provision of chapter 1 of title 4, United States Code, or any rule or custom pertaining to the proper display or use of the flag of the United States (as established pursuant to such chapter or any otherwise applicable provision of law); or 2. any reasonable restriction pertaining to the time, place, or manner of displaying the flag of the United States necessary to protect a substantial interest of the condominium association, cooperative association, or residential real estate management association.
According to the homeowners association, it has authority to request the removal of the flagpole under Section 4, Part 2. Evidently, it believes that it has a substantial interest in restricting the “time, place, or manner” of the Willits’ flagpole. What do you think? Does the Homeowners Association have the right to make this request? Is there a substantial interest? Hear my thoughts on the Legal Lis podcast: http://foxrad.io/1zKC1Jn ]]>
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Legal Lis Podcast: Thomas Eric Duncan’s Family Eyes Lawsuit http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-thomas-eric-duncans-family-eyes-lawsuit/ http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-thomas-eric-duncans-family-eyes-lawsuit/#comments Fri, 17 Oct 2014 21:17:45 +0000 http://www.liswiehlbooks.com/?p=1347 TD

No doubt you’ve heard of Thomas Duncan, that he was the first person to be diagnosed with Ebola on United States soil, and that he died from the disease on October 8, 2014 at Texas Health Presbyterian Hospital. There’s certainly more to the story, though, like the suggestion that he lied to airport screeners in Liberia in order to come to the United States. What’s known is that he helped a pregnant woman in Liberia who was infected with Ebola. What some say is not so clear is whether or not he had reason to believe he might be infected when he boarded a plane to come the U.S. Another huge part of the story is what happened once he got here. He went to Texas Health Presbyterian Hospital with a fever shortly after arriving from Liberia. The story goes that he mentioned that he had been to Liberia but that information was not properly relayed to the appropriate people. And so, he was sent home with some antibiotics. Two days later, he returned to the hospital in an ambulance and this time, proper precautions were taken and he was isolated. Shortly thereafter, he died. So far, two of the nurses involved in the treatment of Duncan have been diagnosed with Ebola. And many others are being monitored. The short of it is that Ebola is not just a story we observe from afar anymore. It’s here, in our own backyard, so to speak. And now, there is talk of a lawsuit brought by Duncan’s family against the hospital related to his treatment. So what we’re talking about is a potential medical malpractice lawsuit. In general, medical malpractice occurs when a doctor or medical professional fails to competently perform his or her duties. In other words, the doctor or medical professional was negligent in relation to his or her treatment of a patient. In Texas, the statute related to medical malpractice sets an extremely high bar when it comes to proving that there was medical malpractice. For the mildly curious, the gist of the law is that it must be proven that doctors were “wilfully or wantonly negligent.” For the extremely curious, the laws says the following:
Sec. 74.151. LIABILITY FOR EMERGENCY CARE (a) A person who in good faith administers emergency care is not liable in civil damages for an act performed during the emergency unless the act is wilfully or wantonly negligent, including a person who:

(1) administers emergency care using an automated external defibrillator; or

(2) administers emergency care as a volunteer who is a first responder as the term is defined under Section 421.095, Government Code.

(b) This section does not apply to care administered:

(1) for or in expectation of remuneration, provided that being legally entitled to receive remuneration for the emergency care rendered shall not determine whether or not the care was administered for or in anticipation of remuneration; or

(2) by a person who was at the scene of the emergency because he or a person he represents as an agent was soliciting business or seeking to perform a service for remuneration.

(c), (d) Deleted by Acts 2003, 78th Leg., ch. 204, Sec. 10.01. (e) Except as provided by this subsection, this section does not apply to a person whose negligent act or omission was a producing cause of the emergency for which care is being administered. This subsection does not apply to liability of a school district or district school officer or employee arising from an act or omission under a program or policy or procedure adopted under Subchapter O-1, Chapter 161, Health and Safety Code, other than liability arising from wilful or intentional misconduct.
So, are we talking about doctors and medical professionals who were “wilfully and wantonly” negligent? Yes, Duncan was initially released from the hospital with a fever of 103 and had relayed the fact that he had been in Liberia. Yes, the hospital made a few missteps. But, under Texas law, it’s going to be a really tough case to prove. What are your thoughts on Thomas Duncan and the possibility of a lawsuit brought by his family? You can hear more of my thoughts on the Legal Lis podcast: foxrad.io/1w3mnns ]]>
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Legal Lis Podcast: The Supreme Court Denies All Same-Sex Marriage Petitions http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-the-supreme-court-denies-all-same-sex-marriage-petitions/ http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-the-supreme-court-denies-all-same-sex-marriage-petitions/#comments Fri, 10 Oct 2014 18:35:47 +0000 http://www.liswiehlbooks.com/?p=1342 SC

This week, the Supreme Court denied all seven petitions related to same-sex marriage, which may or may not come as a shock to you. You are likely to recall that in June 2013, in United States v. Windsor, the Supreme Court struck down Section 3 of the federal Defense of Marriage Act, which had defined “marriage” as a union between a man and a woman. This five-to-four decision meant that same-sex couples who were married in states where same-sex marriage was legal would have the same rights as other married couples when it came to things like, say, filing joint federal tax returns. After the Windsor case, we all knew that the same-sex marriage issue would be back in the Supreme Court. We also knew that the Court was not completely opposed to addressing the issue. So you wouldn't be totally off-base in assuming that the Supreme Court would take on at least one of these seven petitions. But, if you were really tuning in, the denial of the petitions is not all that surprising. For instance, recently, Justice Ruth Bader Ginsburg suggested that the Court might not take on the current issue because there was no disagreement among the lower courts at this point. And it seems as though her prediction was correct. But the fact that the Supreme Court has denied these petitions does not mean that there are not huge effects, so it's important to understand these cases and know what to expect in the future. To begin with, let’s look at the seven petitions the Court denied:
  • Baskin v. Bogan (Indiana): This case challenged the state's denial of marriage rights to same-sex couples. It was filed in federal district court on March 12, 2014 where Chief Judge Richard Young found for the plaintiffs. A three-judge panel of the U.S. Court of Appeals for the Seventh Circuit upheld the district court ruling in a unanimous decision on September 4. Both parties asked the Supreme Court to consider the case.
  • Walker v. Wolf (Wisconsin): This is federal lawsuit filed in February 2014 that challenged Wisconsin's refusal to grant marriage licenses to same-sex couples. In June 2014, Judge Barbara Crabb of the U.S. District Court for the Western District of Wisconsin ruled for the plaintiffs. The state appealed her decision to the Seventh Circuit Court of Appeals, which affirmed her opinion in a unanimous decision on September 4. Wisconsin asked the Supreme Court to consider the case.
  • Herbert v. Kitchen (Utah): A federal case that challenged Utah's constitutional ban on marriage for same-sex couples. Three same-sex couples filed suit in March 2013. In December 2013, the U.S. District Court for the District of Utah found the state's ban on same-sex marriage unconstitutional. In June 2014, the Tenth Circuit Court of Appeals affirmed the decision of the district court. All parties supported review by the Supreme Court.
  • McQuigg v. Bostic, Rainey v. Bostic, Schaefer v. Bostic (Virginia): A group of same-sex couples in Virginia filed suit to challenge the state’s refusal to acknowledge same-sex marriages. The Fourth Circuit Court of Appeals ruled for the plaintiffs and the case went to the Supreme Court for consideration.
  • Smith v. Bishop (Oklahoma): Two same-sex couples challenged Oklahoma's ban on same-sex marriage. In January 2014, U.S. District Court Judge Terence Kern ruled that Oklahoma's ban on same-sex marriage was unconstitutional. The Tenth Circuit Court of Appeals affirmed.
In the coming days and weeks, you can expect that same-sex marriages will be permitted when existing lower-court rulings against state bans go into effect in Indiana, Wisconsin, Utah, Virginia, and Oklahoma. Also, when the court of appeals rulings are implemented, same-sex marriages can occur in North Carolina, South Carolina and West Virginia (Fourth Circuit) and in Colorado, Kansas, and Wyoming (Tenth Circuit). And finally, four other circuits – the Fifth, Sixth, Ninth, and Eleventh – are currently considering the constitutionality of same-sex marriages. And these circuits could make decisions based on how they interpret what the Supreme Court did. Needless to say, denying the petitions has had and will have a resounding impact. You can hear my thoughts on this topic on the Legal Lis podcast: foxrad.io/1v2H4St ]]>
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Legal Lis Podcast: Is Alton Nolen a Terrorist? http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-is-alton-nolen-a-terrorist/ http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-is-alton-nolen-a-terrorist/#comments Fri, 03 Oct 2014 17:48:29 +0000 http://www.liswiehlbooks.com/?p=1337 LL

Colleen Hufford was beheaded by 30- year-old Alton Nolen during a gruesome attack at a Vaughan Foods plant in Oklahoma. Nolen was also able to repeatedly stab another victim, Traci Johnson, before he was shot by the company's CEO, Mark Vaughan, who is also a reserve deputy sheriff. Nolen had been suspended from the company just before he went into Vaughan’s administrative office and attacked the women. Cleveland County prosecutor Greg Mashburn said on Tuesday, 09/30/14, that Nolen will be charged with first-degree murder as well as assault charges. The good news is that first-degree murder in Oklahoma can result in the death penalty. And it’s not unlikely that this would be Nolen’s fate. But some aren’t satisfied, saying that Nolen is a terrorist and should be charged as such. Before I voiced an opinion one way or the other, I wanted to do a little digging of my own. In essence, I wanted a list of all of the things that point to charging Nolen as a terrorist. Here’s what I’ve come up with:
  • Nolen recently converted to Islam and reportedly tried to convert co-workers to Islam.
  • Nolen used Arabic terms during his attack.
  • On his Facebook account, Nolen posted photos of Osama bin Laden, other jihadis, and the Twin Towers burning.
  • His Facebook account also included a very graphic photo of a beheaded victim.
  • He reportedly wrote the following on his Facebook: "She (the Statue of Liberty) is going into flames. She and anybody who's with her."
  • He posted photos of a woman being flogged with the words "Islam will dominate the world. Freedom can go to hell."
  • There are some reports that Suhaib Webb, an imam with known ties to former Al Qaeda mastermind Anwar al Awlaki, appears to have influenced the life of Alton Nolen. Webb, who was once the leader of the Islamic Society of Greater Oklahoma City, now serves as an imam at a mosque in Boston once attended by accused Boston Marathon bombers Dzhokhar and Tamerlan Tsarnaev.
  • Possibly copying ISIS: ISIS has posted for all to see the beheadings of James Foley, Steven Sotloff, and David Haines. This gives terrorists inspiration to copy. It could be that Nolen was acting as a so-called “lone wolf”. Just last week, an ISIS leader, Abu Muhammad al-Adnani, released a recorded speech directed toward "lone wolf" operations and encouraging terrorists to act. "Do not ask for anyone's advice and do not seek anyone's verdict, kill the infidel whether he is civilian or military."
No one factor on its own necessarily spells terrorist, but when combined, you definitely have to wonder. Do you have anything else you think should be added to the list? And do you think Alton Nolen is a terrorist? You can hear my thoughts on how Nolen should be charged on the Legal Lis podcast: foxrad.io/1pGfa6P ]]>
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Legal Lis Podcast: Ray Rice and Double Jeopardy http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-ray-rice-and-double-jeopardy/ http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-ray-rice-and-double-jeopardy/#comments Fri, 26 Sep 2014 20:07:15 +0000 http://www.liswiehlbooks.com/?p=1329 RR Unless you’ve successfully avoided all types of news and gossip lately, you’ve heard about Ray Rice’s recent scandal. What’s more, you’ve probably seen the tragic video in which he punched his then-fiancé, knocking her out, and then dragged her out of an elevator. For Ray Rice – and the NFL – the release of the video footage changed everything. Seeing what he did somehow makes it more despicable, if that’s possible. Seeing it as a video outrages us and incites us to question the NFL. And seeing that video gives us something palpable to arm ourselves with when deciding how we feel about the situation. No doubt about it, Ray Rice should not be given the opportunity to play professional football again. But, legally, it’s not so clear. The first thing to understand is that NFL’s collective bargaining agreement does not have a so-called “double jeopardy” provision. What is does have is Article 46, Section 4, which states that a player cannot be disciplined twice “for the same act or conduct.” The importance of this provision really hinges on when the powers that be at the NFL had and knew about the video showing the assault. There are allegations that the surveillance video of Rice’s assault was sent to league security chief Jeffry Miller in April. There is also talk that there is a voicemail from league offices confirming receipt of said video on April 9. If this is true, then when Ray Rice was punished with a two-game suspension, that should have been the end of it. If NFL officials had already seen the video, then they knew all there was to know and had somehow decided that a two-game suspension was enough of a punishment. Under this version, you’d have to assume that once the video was leaked to the masses, the NFL reacted with an indefinite suspension to nullify the outrage. The problem here is that the two-game suspension was punishment number one. And because of Article 46, Section 4, Rice can’t be punished again for the same act or conduct. On the other hand, you have Miller saying, "I unequivocally deny that I received at any time a copy of the video and I had not watched it until it was made public on September 8.” And NFL Commissioner Roger Goodell has publicly said several times that no one in his office viewed the video until TMZ posted it on its website in September. If this is the truth, then the video brought new information to the table, and so it might be appropriate to revise the two-game suspension. Eventually, the truth will come out. We will know one way or another exactly when Goodell and company knew of the video. And this truth will likely have a huge impact on Rice’s future as a player. Which version of the story do you believe? Do you think people within the NFL saw the video before giving Rice his first punishment? Hear my thoughts in the latest Legal Lis podcast: foxrad.io/1pjtSAK ]]> http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-ray-rice-and-double-jeopardy/feed/ 1 Legal Lis Podcast: The Adrian Peterson Child Injury Case http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-the-adrian-peterson-child-injury-case/ http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-the-adrian-peterson-child-injury-case/#comments Thu, 18 Sep 2014 16:18:23 +0000 http://www.liswiehlbooks.com/?p=1319 Untitled1 In this week’s Legal Lis, one of the subjects I discussed was the recent issue involving Adrian Peterson and his method of disciplining his child. If you haven’t heard much on this story, the basic facts are as follows: Peterson, who plays for the Minnesota Vikings, has been indicted by a Texas grand jury for beating his four-year-old son with a “switch.” The incident occurred in May in Spring, Texas following an argument between Peterson’s son and another child over a video game. Peterson chalked it up to his style of parenting, simply a way to discipline his son, but the extensive injuries piqued the interest of law enforcement. According to reports and photos from the Houston Police Department, Peterson’s son received visible cuts and bruises to his back, buttocks, legs, hands and even scrotum. Because of the severity of the injuries, Peterson now faces charges of injury to a child. This case inevitably makes you wonder: To what extent should parents be permitted to discipline their children as they see fit? The emotional response is oftentimes that a parent should have a lot of freedom in doing just that, parenting. Some parents spank, some use timeouts, others take things away – each parent has a different way of enforcing rules and setting boundaries. And parents should have that right. You could argue all day that one way is better than the next, but in the end, a parent is going to raise their children (hopefully) in the way they think will result in kids who respect others and who recognize boundaries. I know good parents who spank and I know good parents who would never discipline physically – and neither method is necessarily better or worse than the other. But a problem arises when the fine line between spanking to discipline and actually beating a child is blurred. And when that line is blurred or crossed, that is precisely where the legal side of things comes in. For the most part, states tend to agree that a parent should be able to discipline a child - to a certain extent - as he or she sees fit. For example, here in New York, a “parent, guardian or other person entrusted with the care and supervision of a person under the age of twenty-one……may use physical force, but not deadly physical force, upon such person when and to the extent that he reasonably believes it necessary to maintain discipline or to promote the welfare of such person.”  And a New York court recently held that when a father spanked his child with an open hand in order to discipline the child, this was a “reasonable use of force.” A four-judge panel ruled in the unanimous decision that, “the father’s open-handed spanking of the child as a form of discipline after he heard the child curse at an adult was a reasonable use of force and, under the circumstances presented here, did not constitute excessive corporal punishment.” In California, “’serious physical harm’ does not include reasonable and age-appropriate spanking to the buttocks where there is no evidence of serious physical injury.”  And a court has recently found that a California mother who used a wooden spoon to spank her 12-year-old was not a child abuser. Laws and cases all across the U.S. support the notion that a parent can discipline their children when it’s reasonable. So what’s the big deal with Adrian Peterson? Well, primarily, it’s that his method of discipline was pretty extreme. Some would argue that the punishment went well beyond just plain maintaining discipline. The law in Texas is pretty lenient when it comes to parental discipline, stating that “the use of force, but not deadly force, against a child younger than 18 years is justified: (1) if the actor is the child's parent or stepparent or is acting in loco parentis to the child; and (2) when and to the degree the actor reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare.​” But that doesn’t mean a parent can beat a child in Texas without breaking the law. What this law clearly does is leave a lot of room for parents to decide how to discipline. What it does not do is allow a parent to beat a child and say it’s in the name of discipline after the fact. The fact that a second grand jury has indicted Peterson on a child-injury charge indicates that at least some believe he went beyond what the law allows. But Peterson maintains that his conduct was reasonable. What do you think? You can hear more of my thoughts on this issue on the Legal Lis podcast: http://foxrad.io/1pjtSAK ]]> http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-the-adrian-peterson-child-injury-case/feed/ 2 Legal Lis Podcast: Celebrity Nude Photo Hack and California’s New “Yes-Means-Yes” Bill http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-celebrity-nude-photo-hack-and-californias-new-yes-means-yes-bill/ http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-celebrity-nude-photo-hack-and-californias-new-yes-means-yes-bill/#comments Thu, 04 Sep 2014 18:22:41 +0000 http://www.liswiehlbooks.com/?p=1303 LL

In this week’s Legal Lis, I discussed many of the legal aspects related to the recently leaked nude photos of Jennifer Lawrence and other celebrities. I also talked about California’s new “Yes-Means-Yes” bill, which is related to sexual assault on college campuses. Below, I’ve included some of the legal issues that arise from these two topics as well as my thoughts. If you want to hear the full discussion, you can now listen to the Legal Lis podcast here: http://foxrad.io/1oDQawL Celebrity Nude Photo Hack: It’s hard to feel safe on the Internet. With all the hacking going on, it’s almost impossible for a person to expect that private information will, in fact, remain private. Identity theft, stolen credit card info, leaked photos, hacked emails – you don’t have to look too far to find a story that involves at least one of these issues. Enter the latest story in which several celebrities had private photos stolen and leaked to the masses. Some argue that these celebrities shouldn’t be surprised. If you have nude photos stored somewhere on the Internet, you’re exposing yourself to the possibility that these photos will end up in the wrong hands. Others think that when a person sends an intimate photo to a significant other or spouse or friend – in some way that’s intended to remain private – you should be able to expect that those photos will remain private. No matter which way you lean on this issue, there are laws that apply. One issue that has to be discussed related to this leak is what kind of liability there is for Twitter, Facebook and other sites that have or had links to the photos. Legally, the truth is that there is not much liability. Section 230 of the Communications Decency Act is a federal law that creates a lot of protection for providers of an “interactive computer service.” In fact, the law states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Case law testing the immunity of Internet service providers under Section 230 almost always goes the way of no liability. For example, in one case, the Fourth Circuit Court of Appeals found that “lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions — such as deciding whether to publish, withdraw, postpone or alter content — are barred.” The decision goes on to point out that “Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum.” This is just one of the issues that arise from the recent photo hack. You can hear more – including discussion on revenge porn and punishment for the people who actually do the hacking – on the Legal Lis podcast. What do you think: Should we expect privacy on the Internet? Should Twitter and the like be held liable? California’s “Yes-Means-Yes” Bill  The so-called “yes-means-yes” bill, which was passed unanimously by the California State Senate, would require universities in CA to adopt a standard of unambiguous consent from all parties engaging in sexual activity. The bill defines affirmative consent as an “affirmative, conscious, and voluntary agreement to engage in sexual activity” and goes on to state that it “is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity.” That someone doesn’t protest or resist does not equal consent. Neither does silence. The goal of the bill is to prevent sexual assault on campus. And with the White House reporting that 1 in 5 female college students is sexually assaulted while in college, this is a laudable and necessary goal. But some aren’t convinced the bill will achieve its goals, arguing that people who don’t get an explicit “yes” before sex will be deemed rapists even though there was, say, nonverbal affirmation. What are your thoughts: Do you think this bill is a good idea? Can it achieve its goals?   I hope you enjoy the new podcast! Every Thursday from now on, a Legal Lis podcast will be made available so you can listen to the topics I'm discussing.              ]]>
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Q&A on Police Brutality, Part II http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-ray-rice-and-double-jeopardy/ http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-ray-rice-and-double-jeopardy/#comments Fri, 26 Sep 2014 20:07:15 +0000 http://www.liswiehlbooks.com/?p=1329 RR Unless you’ve successfully avoided all types of news and gossip lately, you’ve heard about Ray Rice’s recent scandal. What’s more, you’ve probably seen the tragic video in which he punched his then-fiancé, knocking her out, and then dragged her out of an elevator. For Ray Rice – and the NFL – the release of the video footage changed everything. Seeing what he did somehow makes it more despicable, if that’s possible. Seeing it as a video outrages us and incites us to question the NFL. And seeing that video gives us something palpable to arm ourselves with when deciding how we feel about the situation. No doubt about it, Ray Rice should not be given the opportunity to play professional football again. But, legally, it’s not so clear. The first thing to understand is that NFL’s collective bargaining agreement does not have a so-called “double jeopardy” provision. What is does have is Article 46, Section 4, which states that a player cannot be disciplined twice “for the same act or conduct.” The importance of this provision really hinges on when the powers that be at the NFL had and knew about the video showing the assault. There are allegations that the surveillance video of Rice’s assault was sent to league security chief Jeffry Miller in April. There is also talk that there is a voicemail from league offices confirming receipt of said video on April 9. If this is true, then when Ray Rice was punished with a two-game suspension, that should have been the end of it. If NFL officials had already seen the video, then they knew all there was to know and had somehow decided that a two-game suspension was enough of a punishment. Under this version, you’d have to assume that once the video was leaked to the masses, the NFL reacted with an indefinite suspension to nullify the outrage. The problem here is that the two-game suspension was punishment number one. And because of Article 46, Section 4, Rice can’t be punished again for the same act or conduct. On the other hand, you have Miller saying, "I unequivocally deny that I received at any time a copy of the video and I had not watched it until it was made public on September 8.” And NFL Commissioner Roger Goodell has publicly said several times that no one in his office viewed the video until TMZ posted it on its website in September. If this is the truth, then the video brought new information to the table, and so it might be appropriate to revise the two-game suspension. Eventually, the truth will come out. We will know one way or another exactly when Goodell and company knew of the video. And this truth will likely have a huge impact on Rice’s future as a player. Which version of the story do you believe? Do you think people within the NFL saw the video before giving Rice his first punishment? Hear my thoughts in the latest Legal Lis podcast: foxrad.io/1pjtSAK ]]> http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-ray-rice-and-double-jeopardy/feed/ 1 Lis Wiehl Books http://www.liswiehlbooks.com FOX News Legal Analyst and Author Fri, 05 Dec 2014 20:34:01 +0000 en-US hourly 1 http://wordpress.org/?v=3.9.3 Legal Lis: Brown Family Lawyer Will Pursue “Every Legal Avenue” http://www.liswiehlbooks.com/2014/12/legal-lis-brown-family-lawyer-will-pursue-every-legal-avenue/ http://www.liswiehlbooks.com/2014/12/legal-lis-brown-family-lawyer-will-pursue-every-legal-avenue/#comments Fri, 05 Dec 2014 20:33:14 +0000 http://www.liswiehlbooks.com/?p=1367 LW

Even though a grand jury has decided not to indict Darren Wilson for the shooting of Michael Brown, that does not mean that Wilson’s time in court is over. It’s still possible that there will be federal charges, and then there’s the chance of a civil suit brought by Brown’s family. The lawyer for the Brown family recently announced that they would pursue “every legal avenue” available to them. One thing this likely means is a wrongful death suit. Missouri’s law on wrongful death says the following:
537.080. 1. Whenever the death of a person results from any act, conduct, occurrence, transaction, or circumstance which, if death had not ensued, would have entitled such person to recover damages in respect thereof, the person or party who, or the corporation which, would have been liable if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured, which damages may be sued for: (1) By the spouse or children or the surviving lineal descendants of any deceased children, natural or adopted, legitimate or illegitimate, or by the father or mother of the deceased, natural or adoptive; (2) If there be no persons in class (1) entitled to bring the action, then by the brother or sister of the deceased, or their descendants, who can establish his or her right to those damages set out in section 537.090 because of the death; (3) If there be no persons in class (1) or (2) entitled to bring the action, then by a plaintiff ad litem. Such plaintiff ad litem shall be appointed by the court having jurisdiction over the action for damages provided in this section upon application of some person entitled to share in the proceeds of such action. Such plaintiff ad litem shall be some suitable person competent to prosecute such action and whose appointment is requested on behalf of those persons entitled to share in the proceeds of such action. Such court may, in its discretion, require that such plaintiff ad litem give bond for the faithful performance of his duties.
In short, this means a wrongful death claim can be brought against a person whose negligent or intentional actions caused the death of another person. And to win a wrongful death suit, the Brown family has a much lighter burden than there would have been in a criminal case. In general, crimes must be proven beyond a reasonable doubt. In a civil wrongful death suit, though, the standard of proof is a preponderance of evidence, which basically just means that it is more likely than not that a certain thing happened. In a wrongful death suit against Darren Wilson, it would have to be shown that it is more likely than not that Wilson’s actions were responsible for Michael Brown’s death. Many watched as Prosecuting Attorney Bob McCulloch announced that there would be no indictment for Darren Wilson. We also saw the outraged reactions from protestors in and around Ferguson, Missouri. Then came Wilson’s resignation from the Ferguson Police Department. What’s next in this story has yet to be determined, but it would not be a shock to hear that the Brown family is moving forward with a wrongful death suit. What are your thoughts on the subject? Hear mine on the latest Legal Lis podcast: foxrad.io/1BdNfpQ ]]>
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Legal Lis: Delta Offers 0 Credit to Owner for Lost Dog http://www.liswiehlbooks.com/2014/11/legal-lis-delta-offers-200-credit-to-owner-for-lost-dog/ http://www.liswiehlbooks.com/2014/11/legal-lis-delta-offers-200-credit-to-owner-for-lost-dog/#comments Fri, 14 Nov 2014 20:04:09 +0000 http://www.liswiehlbooks.com/?p=1361 delta   Every time you fly, if you check your bags, you have to trust someone else to take care of and deliver your possessions. I always get more than just a little anxious at the thought of handing over clothes and the like, because a lot can go wrong. Things can be damaged, your bag can get lost, you miss a connection and the bag goes one way while you're stuck somewhere else. The possibilities are all but endless. As much as I dread the thought of losing my things, in the end, they are just things. In the grand scheme of traveling, having your bag lost or misplaced isn’t the end of the world. But what if, instead of your suitcase filled to the brim with possessions, an airline lost your dog? This is what happened to one recent traveler. Frank Romano boarded a Delta flight from California to Florida after handing over his pit bull, Ty, to travel in a kennel. Before the flight left, though, Frank was told that Ty had chewed his way out of the kennel and was lost. Delta claims to be doing all things possible to find Ty and the airline has offered Frank a 0 credit for future travel. No, that is not a typographical error. A dog is missing and Delta has offered only 0 in consolation. How can this be? Is Delta liable for the loss of the dog? If so, for how much? These are all the questions that flooded my head as I read about Frank and Ty. If you’re just as curious, here are a few answers:
  • Yes, airlines are liable for lost or damaged baggage, which includes a dog. Airlines limit their liability and must meet a minimum that is set by the federal government. Currently, the minimum dollar amount airlines can establish to compensate for lost, delayed and damaged baggage on domestic flights is ,400.
  • A quick check of Delta's policy on baggage liability reveals that the airline has gone with the minimum.
  • Passengers may declare a higher value for their baggage, making an airline liable for more than the minimum, but said passenger must do so before the flight and must pay a fee.
  • A passenger can challenge the liability limit. In general, though, as long as the passenger had notice of the limit and an opportunity to declare a higher value for that baggage, the limit will hold up in court.
As far as I can tell, Frank did not declare a higher value, so it looks like any liability for his missing dog would be capped at ,400. And case law has tended to stand by an airline's minimum liability. For example, in 1983, Thomas Deiro shipped nine racing greyhounds by air from Portland to Boston. During a layover in Dallas, the airline left the dogs in their cages in 97° heat. Seven of the dogs died, and two were injured. Deiro sued American Airlines for 0,000, but the court only awarded him 0, which was the liability limit at the time. The court reasoned that as an experienced traveler, Deiro should have declared a higher value for his dogs. In its decision, the court stated, "We find it difficult to imagine how any passenger with Deiro's experience, planning to check a quarter of a million dollars worth of baggage, could have had more opportunity or incentive to familiarize himself with the baggage liability provisions." In sum, airlines have a long and protected history in limiting their liability. Nevertheless, here’s hoping that Ty and Frank are reunited soon. You can hear more of my thoughts on this topic on the Legal Lis podcast: foxrad.io/1xhHHJd   ]]>
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Legal Lis: Homeowners Association Battles with an Elderly Veteran over a Flagpole http://www.liswiehlbooks.com/2014/11/legal-lis-homeowners-association-battles-with-an-elderly-veteran-over-a-flagpole/ http://www.liswiehlbooks.com/2014/11/legal-lis-homeowners-association-battles-with-an-elderly-veteran-over-a-flagpole/#comments Mon, 03 Nov 2014 14:37:16 +0000 http://www.liswiehlbooks.com/?p=1354 Lis

An 82-year-old man and his wife have recently been fielding letters from their homeowners association related to the flagpole they have in their front yard. The couple was first told in September that their flagpole should be removed from the front yard because it was not mounted to their home. But Bob Willits, who served four years during the Korean War, and his wife, Judy, are fighting the requests from the Fieldstone Homeowners Association. At first blush, it’s hard for me to imagine why a homeowners association would be so set on fighting a flagpole. As far as I can tell, it isn’t blocking a public sidewalk, it’s not endangering people in the neighborhood, and there’s nothing obscene of offensive being flown from the flagpole. No, it’s seems to be just two people intent on expressing their patriotism. Beyond this, though, there’s also the fact that there’s something called the Freedom to Display the American Flag Act of 2005, which intends to prevent the likes of a homeowners association from restricting homeowners when it comes to displaying the U.S. flag on their property. For the legally inclined, here’s the text of the American Flag Act:
SECTION 1. SHORT TITLE. This Act may be cited as the `Freedom to Display the American Flag Act of 2005'. SEC. 2. DEFINITIONS. For purposes of this Act-- 1. the term `flag of the United States' has the meaning given the term `flag, standard, colors, or ensign' under section 3 of title 4, United States Code; 2. the terms `condominium association' and `cooperative association' have the meanings given such terms under section 604 of Public Law 96-399 (15 U.S.C. 3603); 3. the term `residential real estate management association' has the meaning given such term under section 528 of the Internal Revenue Code of 1986 (26 U.S.C. 528); and 4. the term `member'--
(A) as used with respect to a condominium association, means an owner of a condominium unit (as defined under section 604 of Public Law 96-399 (15 U.S.C. 3603)) within such association; (B) as used with respect to a cooperative association, means a cooperative unit owner (as defined under section 604 of Public Law 96-399 (15 U.S.C. 3603)) within such association; and (C) as used with respect to a residential real estate management association, means an owner of a residential property within a subdivision, development, or similar area subject to any policy or restriction adopted by such association.
 SEC. 3. RIGHT TO DISPLAY THE FLAG OF THE UNITED STATES. A condominium association, cooperative association, or residential real estate management association may not adopt or enforce any policy, or enter into any agreement, that would restrict or prevent a member of the association from displaying the flag of the United States on residential property within the association with respect to which such member has a separate ownership interest or a right to exclusive possession or use. SEC. 4. LIMITATIONS. Nothing in this Act shall be considered to permit any display or use that is inconsistent with-- 1. any provision of chapter 1 of title 4, United States Code, or any rule or custom pertaining to the proper display or use of the flag of the United States (as established pursuant to such chapter or any otherwise applicable provision of law); or 2. any reasonable restriction pertaining to the time, place, or manner of displaying the flag of the United States necessary to protect a substantial interest of the condominium association, cooperative association, or residential real estate management association.
According to the homeowners association, it has authority to request the removal of the flagpole under Section 4, Part 2. Evidently, it believes that it has a substantial interest in restricting the “time, place, or manner” of the Willits’ flagpole. What do you think? Does the Homeowners Association have the right to make this request? Is there a substantial interest? Hear my thoughts on the Legal Lis podcast: http://foxrad.io/1zKC1Jn ]]>
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Legal Lis Podcast: Thomas Eric Duncan’s Family Eyes Lawsuit http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-thomas-eric-duncans-family-eyes-lawsuit/ http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-thomas-eric-duncans-family-eyes-lawsuit/#comments Fri, 17 Oct 2014 21:17:45 +0000 http://www.liswiehlbooks.com/?p=1347 TD

No doubt you’ve heard of Thomas Duncan, that he was the first person to be diagnosed with Ebola on United States soil, and that he died from the disease on October 8, 2014 at Texas Health Presbyterian Hospital. There’s certainly more to the story, though, like the suggestion that he lied to airport screeners in Liberia in order to come to the United States. What’s known is that he helped a pregnant woman in Liberia who was infected with Ebola. What some say is not so clear is whether or not he had reason to believe he might be infected when he boarded a plane to come the U.S. Another huge part of the story is what happened once he got here. He went to Texas Health Presbyterian Hospital with a fever shortly after arriving from Liberia. The story goes that he mentioned that he had been to Liberia but that information was not properly relayed to the appropriate people. And so, he was sent home with some antibiotics. Two days later, he returned to the hospital in an ambulance and this time, proper precautions were taken and he was isolated. Shortly thereafter, he died. So far, two of the nurses involved in the treatment of Duncan have been diagnosed with Ebola. And many others are being monitored. The short of it is that Ebola is not just a story we observe from afar anymore. It’s here, in our own backyard, so to speak. And now, there is talk of a lawsuit brought by Duncan’s family against the hospital related to his treatment. So what we’re talking about is a potential medical malpractice lawsuit. In general, medical malpractice occurs when a doctor or medical professional fails to competently perform his or her duties. In other words, the doctor or medical professional was negligent in relation to his or her treatment of a patient. In Texas, the statute related to medical malpractice sets an extremely high bar when it comes to proving that there was medical malpractice. For the mildly curious, the gist of the law is that it must be proven that doctors were “wilfully or wantonly negligent.” For the extremely curious, the laws says the following:
Sec. 74.151. LIABILITY FOR EMERGENCY CARE (a) A person who in good faith administers emergency care is not liable in civil damages for an act performed during the emergency unless the act is wilfully or wantonly negligent, including a person who:

(1) administers emergency care using an automated external defibrillator; or

(2) administers emergency care as a volunteer who is a first responder as the term is defined under Section 421.095, Government Code.

(b) This section does not apply to care administered:

(1) for or in expectation of remuneration, provided that being legally entitled to receive remuneration for the emergency care rendered shall not determine whether or not the care was administered for or in anticipation of remuneration; or

(2) by a person who was at the scene of the emergency because he or a person he represents as an agent was soliciting business or seeking to perform a service for remuneration.

(c), (d) Deleted by Acts 2003, 78th Leg., ch. 204, Sec. 10.01. (e) Except as provided by this subsection, this section does not apply to a person whose negligent act or omission was a producing cause of the emergency for which care is being administered. This subsection does not apply to liability of a school district or district school officer or employee arising from an act or omission under a program or policy or procedure adopted under Subchapter O-1, Chapter 161, Health and Safety Code, other than liability arising from wilful or intentional misconduct.
So, are we talking about doctors and medical professionals who were “wilfully and wantonly” negligent? Yes, Duncan was initially released from the hospital with a fever of 103 and had relayed the fact that he had been in Liberia. Yes, the hospital made a few missteps. But, under Texas law, it’s going to be a really tough case to prove. What are your thoughts on Thomas Duncan and the possibility of a lawsuit brought by his family? You can hear more of my thoughts on the Legal Lis podcast: foxrad.io/1w3mnns ]]>
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Legal Lis Podcast: The Supreme Court Denies All Same-Sex Marriage Petitions http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-the-supreme-court-denies-all-same-sex-marriage-petitions/ http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-the-supreme-court-denies-all-same-sex-marriage-petitions/#comments Fri, 10 Oct 2014 18:35:47 +0000 http://www.liswiehlbooks.com/?p=1342 SC

This week, the Supreme Court denied all seven petitions related to same-sex marriage, which may or may not come as a shock to you. You are likely to recall that in June 2013, in United States v. Windsor, the Supreme Court struck down Section 3 of the federal Defense of Marriage Act, which had defined “marriage” as a union between a man and a woman. This five-to-four decision meant that same-sex couples who were married in states where same-sex marriage was legal would have the same rights as other married couples when it came to things like, say, filing joint federal tax returns. After the Windsor case, we all knew that the same-sex marriage issue would be back in the Supreme Court. We also knew that the Court was not completely opposed to addressing the issue. So you wouldn't be totally off-base in assuming that the Supreme Court would take on at least one of these seven petitions. But, if you were really tuning in, the denial of the petitions is not all that surprising. For instance, recently, Justice Ruth Bader Ginsburg suggested that the Court might not take on the current issue because there was no disagreement among the lower courts at this point. And it seems as though her prediction was correct. But the fact that the Supreme Court has denied these petitions does not mean that there are not huge effects, so it's important to understand these cases and know what to expect in the future. To begin with, let’s look at the seven petitions the Court denied:
  • Baskin v. Bogan (Indiana): This case challenged the state's denial of marriage rights to same-sex couples. It was filed in federal district court on March 12, 2014 where Chief Judge Richard Young found for the plaintiffs. A three-judge panel of the U.S. Court of Appeals for the Seventh Circuit upheld the district court ruling in a unanimous decision on September 4. Both parties asked the Supreme Court to consider the case.
  • Walker v. Wolf (Wisconsin): This is federal lawsuit filed in February 2014 that challenged Wisconsin's refusal to grant marriage licenses to same-sex couples. In June 2014, Judge Barbara Crabb of the U.S. District Court for the Western District of Wisconsin ruled for the plaintiffs. The state appealed her decision to the Seventh Circuit Court of Appeals, which affirmed her opinion in a unanimous decision on September 4. Wisconsin asked the Supreme Court to consider the case.
  • Herbert v. Kitchen (Utah): A federal case that challenged Utah's constitutional ban on marriage for same-sex couples. Three same-sex couples filed suit in March 2013. In December 2013, the U.S. District Court for the District of Utah found the state's ban on same-sex marriage unconstitutional. In June 2014, the Tenth Circuit Court of Appeals affirmed the decision of the district court. All parties supported review by the Supreme Court.
  • McQuigg v. Bostic, Rainey v. Bostic, Schaefer v. Bostic (Virginia): A group of same-sex couples in Virginia filed suit to challenge the state’s refusal to acknowledge same-sex marriages. The Fourth Circuit Court of Appeals ruled for the plaintiffs and the case went to the Supreme Court for consideration.
  • Smith v. Bishop (Oklahoma): Two same-sex couples challenged Oklahoma's ban on same-sex marriage. In January 2014, U.S. District Court Judge Terence Kern ruled that Oklahoma's ban on same-sex marriage was unconstitutional. The Tenth Circuit Court of Appeals affirmed.
In the coming days and weeks, you can expect that same-sex marriages will be permitted when existing lower-court rulings against state bans go into effect in Indiana, Wisconsin, Utah, Virginia, and Oklahoma. Also, when the court of appeals rulings are implemented, same-sex marriages can occur in North Carolina, South Carolina and West Virginia (Fourth Circuit) and in Colorado, Kansas, and Wyoming (Tenth Circuit). And finally, four other circuits – the Fifth, Sixth, Ninth, and Eleventh – are currently considering the constitutionality of same-sex marriages. And these circuits could make decisions based on how they interpret what the Supreme Court did. Needless to say, denying the petitions has had and will have a resounding impact. You can hear my thoughts on this topic on the Legal Lis podcast: foxrad.io/1v2H4St ]]>
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Legal Lis Podcast: Is Alton Nolen a Terrorist? http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-is-alton-nolen-a-terrorist/ http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-is-alton-nolen-a-terrorist/#comments Fri, 03 Oct 2014 17:48:29 +0000 http://www.liswiehlbooks.com/?p=1337 LL

Colleen Hufford was beheaded by 30- year-old Alton Nolen during a gruesome attack at a Vaughan Foods plant in Oklahoma. Nolen was also able to repeatedly stab another victim, Traci Johnson, before he was shot by the company's CEO, Mark Vaughan, who is also a reserve deputy sheriff. Nolen had been suspended from the company just before he went into Vaughan’s administrative office and attacked the women. Cleveland County prosecutor Greg Mashburn said on Tuesday, 09/30/14, that Nolen will be charged with first-degree murder as well as assault charges. The good news is that first-degree murder in Oklahoma can result in the death penalty. And it’s not unlikely that this would be Nolen’s fate. But some aren’t satisfied, saying that Nolen is a terrorist and should be charged as such. Before I voiced an opinion one way or the other, I wanted to do a little digging of my own. In essence, I wanted a list of all of the things that point to charging Nolen as a terrorist. Here’s what I’ve come up with:
  • Nolen recently converted to Islam and reportedly tried to convert co-workers to Islam.
  • Nolen used Arabic terms during his attack.
  • On his Facebook account, Nolen posted photos of Osama bin Laden, other jihadis, and the Twin Towers burning.
  • His Facebook account also included a very graphic photo of a beheaded victim.
  • He reportedly wrote the following on his Facebook: "She (the Statue of Liberty) is going into flames. She and anybody who's with her."
  • He posted photos of a woman being flogged with the words "Islam will dominate the world. Freedom can go to hell."
  • There are some reports that Suhaib Webb, an imam with known ties to former Al Qaeda mastermind Anwar al Awlaki, appears to have influenced the life of Alton Nolen. Webb, who was once the leader of the Islamic Society of Greater Oklahoma City, now serves as an imam at a mosque in Boston once attended by accused Boston Marathon bombers Dzhokhar and Tamerlan Tsarnaev.
  • Possibly copying ISIS: ISIS has posted for all to see the beheadings of James Foley, Steven Sotloff, and David Haines. This gives terrorists inspiration to copy. It could be that Nolen was acting as a so-called “lone wolf”. Just last week, an ISIS leader, Abu Muhammad al-Adnani, released a recorded speech directed toward "lone wolf" operations and encouraging terrorists to act. "Do not ask for anyone's advice and do not seek anyone's verdict, kill the infidel whether he is civilian or military."
No one factor on its own necessarily spells terrorist, but when combined, you definitely have to wonder. Do you have anything else you think should be added to the list? And do you think Alton Nolen is a terrorist? You can hear my thoughts on how Nolen should be charged on the Legal Lis podcast: foxrad.io/1pGfa6P ]]>
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Legal Lis Podcast: Ray Rice and Double Jeopardy http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-ray-rice-and-double-jeopardy/ http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-ray-rice-and-double-jeopardy/#comments Fri, 26 Sep 2014 20:07:15 +0000 http://www.liswiehlbooks.com/?p=1329 RR Unless you’ve successfully avoided all types of news and gossip lately, you’ve heard about Ray Rice’s recent scandal. What’s more, you’ve probably seen the tragic video in which he punched his then-fiancé, knocking her out, and then dragged her out of an elevator. For Ray Rice – and the NFL – the release of the video footage changed everything. Seeing what he did somehow makes it more despicable, if that’s possible. Seeing it as a video outrages us and incites us to question the NFL. And seeing that video gives us something palpable to arm ourselves with when deciding how we feel about the situation. No doubt about it, Ray Rice should not be given the opportunity to play professional football again. But, legally, it’s not so clear. The first thing to understand is that NFL’s collective bargaining agreement does not have a so-called “double jeopardy” provision. What is does have is Article 46, Section 4, which states that a player cannot be disciplined twice “for the same act or conduct.” The importance of this provision really hinges on when the powers that be at the NFL had and knew about the video showing the assault. There are allegations that the surveillance video of Rice’s assault was sent to league security chief Jeffry Miller in April. There is also talk that there is a voicemail from league offices confirming receipt of said video on April 9. If this is true, then when Ray Rice was punished with a two-game suspension, that should have been the end of it. If NFL officials had already seen the video, then they knew all there was to know and had somehow decided that a two-game suspension was enough of a punishment. Under this version, you’d have to assume that once the video was leaked to the masses, the NFL reacted with an indefinite suspension to nullify the outrage. The problem here is that the two-game suspension was punishment number one. And because of Article 46, Section 4, Rice can’t be punished again for the same act or conduct. On the other hand, you have Miller saying, "I unequivocally deny that I received at any time a copy of the video and I had not watched it until it was made public on September 8.” And NFL Commissioner Roger Goodell has publicly said several times that no one in his office viewed the video until TMZ posted it on its website in September. If this is the truth, then the video brought new information to the table, and so it might be appropriate to revise the two-game suspension. Eventually, the truth will come out. We will know one way or another exactly when Goodell and company knew of the video. And this truth will likely have a huge impact on Rice’s future as a player. Which version of the story do you believe? Do you think people within the NFL saw the video before giving Rice his first punishment? Hear my thoughts in the latest Legal Lis podcast: foxrad.io/1pjtSAK ]]> http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-ray-rice-and-double-jeopardy/feed/ 1 Legal Lis Podcast: The Adrian Peterson Child Injury Case http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-the-adrian-peterson-child-injury-case/ http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-the-adrian-peterson-child-injury-case/#comments Thu, 18 Sep 2014 16:18:23 +0000 http://www.liswiehlbooks.com/?p=1319 Untitled1 In this week’s Legal Lis, one of the subjects I discussed was the recent issue involving Adrian Peterson and his method of disciplining his child. If you haven’t heard much on this story, the basic facts are as follows: Peterson, who plays for the Minnesota Vikings, has been indicted by a Texas grand jury for beating his four-year-old son with a “switch.” The incident occurred in May in Spring, Texas following an argument between Peterson’s son and another child over a video game. Peterson chalked it up to his style of parenting, simply a way to discipline his son, but the extensive injuries piqued the interest of law enforcement. According to reports and photos from the Houston Police Department, Peterson’s son received visible cuts and bruises to his back, buttocks, legs, hands and even scrotum. Because of the severity of the injuries, Peterson now faces charges of injury to a child. This case inevitably makes you wonder: To what extent should parents be permitted to discipline their children as they see fit? The emotional response is oftentimes that a parent should have a lot of freedom in doing just that, parenting. Some parents spank, some use timeouts, others take things away – each parent has a different way of enforcing rules and setting boundaries. And parents should have that right. You could argue all day that one way is better than the next, but in the end, a parent is going to raise their children (hopefully) in the way they think will result in kids who respect others and who recognize boundaries. I know good parents who spank and I know good parents who would never discipline physically – and neither method is necessarily better or worse than the other. But a problem arises when the fine line between spanking to discipline and actually beating a child is blurred. And when that line is blurred or crossed, that is precisely where the legal side of things comes in. For the most part, states tend to agree that a parent should be able to discipline a child - to a certain extent - as he or she sees fit. For example, here in New York, a “parent, guardian or other person entrusted with the care and supervision of a person under the age of twenty-one……may use physical force, but not deadly physical force, upon such person when and to the extent that he reasonably believes it necessary to maintain discipline or to promote the welfare of such person.”  And a New York court recently held that when a father spanked his child with an open hand in order to discipline the child, this was a “reasonable use of force.” A four-judge panel ruled in the unanimous decision that, “the father’s open-handed spanking of the child as a form of discipline after he heard the child curse at an adult was a reasonable use of force and, under the circumstances presented here, did not constitute excessive corporal punishment.” In California, “’serious physical harm’ does not include reasonable and age-appropriate spanking to the buttocks where there is no evidence of serious physical injury.”  And a court has recently found that a California mother who used a wooden spoon to spank her 12-year-old was not a child abuser. Laws and cases all across the U.S. support the notion that a parent can discipline their children when it’s reasonable. So what’s the big deal with Adrian Peterson? Well, primarily, it’s that his method of discipline was pretty extreme. Some would argue that the punishment went well beyond just plain maintaining discipline. The law in Texas is pretty lenient when it comes to parental discipline, stating that “the use of force, but not deadly force, against a child younger than 18 years is justified: (1) if the actor is the child's parent or stepparent or is acting in loco parentis to the child; and (2) when and to the degree the actor reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare.​” But that doesn’t mean a parent can beat a child in Texas without breaking the law. What this law clearly does is leave a lot of room for parents to decide how to discipline. What it does not do is allow a parent to beat a child and say it’s in the name of discipline after the fact. The fact that a second grand jury has indicted Peterson on a child-injury charge indicates that at least some believe he went beyond what the law allows. But Peterson maintains that his conduct was reasonable. What do you think? You can hear more of my thoughts on this issue on the Legal Lis podcast: http://foxrad.io/1pjtSAK ]]> http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-the-adrian-peterson-child-injury-case/feed/ 2 Legal Lis Podcast: Celebrity Nude Photo Hack and California’s New “Yes-Means-Yes” Bill http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-celebrity-nude-photo-hack-and-californias-new-yes-means-yes-bill/ http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-celebrity-nude-photo-hack-and-californias-new-yes-means-yes-bill/#comments Thu, 04 Sep 2014 18:22:41 +0000 http://www.liswiehlbooks.com/?p=1303 LL

In this week’s Legal Lis, I discussed many of the legal aspects related to the recently leaked nude photos of Jennifer Lawrence and other celebrities. I also talked about California’s new “Yes-Means-Yes” bill, which is related to sexual assault on college campuses. Below, I’ve included some of the legal issues that arise from these two topics as well as my thoughts. If you want to hear the full discussion, you can now listen to the Legal Lis podcast here: http://foxrad.io/1oDQawL Celebrity Nude Photo Hack: It’s hard to feel safe on the Internet. With all the hacking going on, it’s almost impossible for a person to expect that private information will, in fact, remain private. Identity theft, stolen credit card info, leaked photos, hacked emails – you don’t have to look too far to find a story that involves at least one of these issues. Enter the latest story in which several celebrities had private photos stolen and leaked to the masses. Some argue that these celebrities shouldn’t be surprised. If you have nude photos stored somewhere on the Internet, you’re exposing yourself to the possibility that these photos will end up in the wrong hands. Others think that when a person sends an intimate photo to a significant other or spouse or friend – in some way that’s intended to remain private – you should be able to expect that those photos will remain private. No matter which way you lean on this issue, there are laws that apply. One issue that has to be discussed related to this leak is what kind of liability there is for Twitter, Facebook and other sites that have or had links to the photos. Legally, the truth is that there is not much liability. Section 230 of the Communications Decency Act is a federal law that creates a lot of protection for providers of an “interactive computer service.” In fact, the law states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Case law testing the immunity of Internet service providers under Section 230 almost always goes the way of no liability. For example, in one case, the Fourth Circuit Court of Appeals found that “lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions — such as deciding whether to publish, withdraw, postpone or alter content — are barred.” The decision goes on to point out that “Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum.” This is just one of the issues that arise from the recent photo hack. You can hear more – including discussion on revenge porn and punishment for the people who actually do the hacking – on the Legal Lis podcast. What do you think: Should we expect privacy on the Internet? Should Twitter and the like be held liable? California’s “Yes-Means-Yes” Bill  The so-called “yes-means-yes” bill, which was passed unanimously by the California State Senate, would require universities in CA to adopt a standard of unambiguous consent from all parties engaging in sexual activity. The bill defines affirmative consent as an “affirmative, conscious, and voluntary agreement to engage in sexual activity” and goes on to state that it “is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity.” That someone doesn’t protest or resist does not equal consent. Neither does silence. The goal of the bill is to prevent sexual assault on campus. And with the White House reporting that 1 in 5 female college students is sexually assaulted while in college, this is a laudable and necessary goal. But some aren’t convinced the bill will achieve its goals, arguing that people who don’t get an explicit “yes” before sex will be deemed rapists even though there was, say, nonverbal affirmation. What are your thoughts: Do you think this bill is a good idea? Can it achieve its goals?   I hope you enjoy the new podcast! Every Thursday from now on, a Legal Lis podcast will be made available so you can listen to the topics I'm discussing.              ]]>
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Q&A on Police Brutality, Part II http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-the-adrian-peterson-child-injury-case/ http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-the-adrian-peterson-child-injury-case/#comments Thu, 18 Sep 2014 16:18:23 +0000 http://www.liswiehlbooks.com/?p=1319 Untitled1 In this week’s Legal Lis, one of the subjects I discussed was the recent issue involving Adrian Peterson and his method of disciplining his child. If you haven’t heard much on this story, the basic facts are as follows: Peterson, who plays for the Minnesota Vikings, has been indicted by a Texas grand jury for beating his four-year-old son with a “switch.” The incident occurred in May in Spring, Texas following an argument between Peterson’s son and another child over a video game. Peterson chalked it up to his style of parenting, simply a way to discipline his son, but the extensive injuries piqued the interest of law enforcement. According to reports and photos from the Houston Police Department, Peterson’s son received visible cuts and bruises to his back, buttocks, legs, hands and even scrotum. Because of the severity of the injuries, Peterson now faces charges of injury to a child. This case inevitably makes you wonder: To what extent should parents be permitted to discipline their children as they see fit? The emotional response is oftentimes that a parent should have a lot of freedom in doing just that, parenting. Some parents spank, some use timeouts, others take things away – each parent has a different way of enforcing rules and setting boundaries. And parents should have that right. You could argue all day that one way is better than the next, but in the end, a parent is going to raise their children (hopefully) in the way they think will result in kids who respect others and who recognize boundaries. I know good parents who spank and I know good parents who would never discipline physically – and neither method is necessarily better or worse than the other. But a problem arises when the fine line between spanking to discipline and actually beating a child is blurred. And when that line is blurred or crossed, that is precisely where the legal side of things comes in. For the most part, states tend to agree that a parent should be able to discipline a child - to a certain extent - as he or she sees fit. For example, here in New York, a “parent, guardian or other person entrusted with the care and supervision of a person under the age of twenty-one……may use physical force, but not deadly physical force, upon such person when and to the extent that he reasonably believes it necessary to maintain discipline or to promote the welfare of such person.”  And a New York court recently held that when a father spanked his child with an open hand in order to discipline the child, this was a “reasonable use of force.” A four-judge panel ruled in the unanimous decision that, “the father’s open-handed spanking of the child as a form of discipline after he heard the child curse at an adult was a reasonable use of force and, under the circumstances presented here, did not constitute excessive corporal punishment.” In California, “’serious physical harm’ does not include reasonable and age-appropriate spanking to the buttocks where there is no evidence of serious physical injury.”  And a court has recently found that a California mother who used a wooden spoon to spank her 12-year-old was not a child abuser. Laws and cases all across the U.S. support the notion that a parent can discipline their children when it’s reasonable. So what’s the big deal with Adrian Peterson? Well, primarily, it’s that his method of discipline was pretty extreme. Some would argue that the punishment went well beyond just plain maintaining discipline. The law in Texas is pretty lenient when it comes to parental discipline, stating that “the use of force, but not deadly force, against a child younger than 18 years is justified: (1) if the actor is the child's parent or stepparent or is acting in loco parentis to the child; and (2) when and to the degree the actor reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare.​” But that doesn’t mean a parent can beat a child in Texas without breaking the law. What this law clearly does is leave a lot of room for parents to decide how to discipline. What it does not do is allow a parent to beat a child and say it’s in the name of discipline after the fact. The fact that a second grand jury has indicted Peterson on a child-injury charge indicates that at least some believe he went beyond what the law allows. But Peterson maintains that his conduct was reasonable. What do you think? You can hear more of my thoughts on this issue on the Legal Lis podcast: http://foxrad.io/1pjtSAK ]]> http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-the-adrian-peterson-child-injury-case/feed/ 2 Lis Wiehl Books http://www.liswiehlbooks.com FOX News Legal Analyst and Author Fri, 05 Dec 2014 20:34:01 +0000 en-US hourly 1 http://wordpress.org/?v=3.9.3 Legal Lis: Brown Family Lawyer Will Pursue “Every Legal Avenue” http://www.liswiehlbooks.com/2014/12/legal-lis-brown-family-lawyer-will-pursue-every-legal-avenue/ http://www.liswiehlbooks.com/2014/12/legal-lis-brown-family-lawyer-will-pursue-every-legal-avenue/#comments Fri, 05 Dec 2014 20:33:14 +0000 http://www.liswiehlbooks.com/?p=1367 LW

Even though a grand jury has decided not to indict Darren Wilson for the shooting of Michael Brown, that does not mean that Wilson’s time in court is over. It’s still possible that there will be federal charges, and then there’s the chance of a civil suit brought by Brown’s family. The lawyer for the Brown family recently announced that they would pursue “every legal avenue” available to them. One thing this likely means is a wrongful death suit. Missouri’s law on wrongful death says the following:
537.080. 1. Whenever the death of a person results from any act, conduct, occurrence, transaction, or circumstance which, if death had not ensued, would have entitled such person to recover damages in respect thereof, the person or party who, or the corporation which, would have been liable if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured, which damages may be sued for: (1) By the spouse or children or the surviving lineal descendants of any deceased children, natural or adopted, legitimate or illegitimate, or by the father or mother of the deceased, natural or adoptive; (2) If there be no persons in class (1) entitled to bring the action, then by the brother or sister of the deceased, or their descendants, who can establish his or her right to those damages set out in section 537.090 because of the death; (3) If there be no persons in class (1) or (2) entitled to bring the action, then by a plaintiff ad litem. Such plaintiff ad litem shall be appointed by the court having jurisdiction over the action for damages provided in this section upon application of some person entitled to share in the proceeds of such action. Such plaintiff ad litem shall be some suitable person competent to prosecute such action and whose appointment is requested on behalf of those persons entitled to share in the proceeds of such action. Such court may, in its discretion, require that such plaintiff ad litem give bond for the faithful performance of his duties.
In short, this means a wrongful death claim can be brought against a person whose negligent or intentional actions caused the death of another person. And to win a wrongful death suit, the Brown family has a much lighter burden than there would have been in a criminal case. In general, crimes must be proven beyond a reasonable doubt. In a civil wrongful death suit, though, the standard of proof is a preponderance of evidence, which basically just means that it is more likely than not that a certain thing happened. In a wrongful death suit against Darren Wilson, it would have to be shown that it is more likely than not that Wilson’s actions were responsible for Michael Brown’s death. Many watched as Prosecuting Attorney Bob McCulloch announced that there would be no indictment for Darren Wilson. We also saw the outraged reactions from protestors in and around Ferguson, Missouri. Then came Wilson’s resignation from the Ferguson Police Department. What’s next in this story has yet to be determined, but it would not be a shock to hear that the Brown family is moving forward with a wrongful death suit. What are your thoughts on the subject? Hear mine on the latest Legal Lis podcast: foxrad.io/1BdNfpQ ]]>
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Legal Lis: Delta Offers 0 Credit to Owner for Lost Dog http://www.liswiehlbooks.com/2014/11/legal-lis-delta-offers-200-credit-to-owner-for-lost-dog/ http://www.liswiehlbooks.com/2014/11/legal-lis-delta-offers-200-credit-to-owner-for-lost-dog/#comments Fri, 14 Nov 2014 20:04:09 +0000 http://www.liswiehlbooks.com/?p=1361 delta   Every time you fly, if you check your bags, you have to trust someone else to take care of and deliver your possessions. I always get more than just a little anxious at the thought of handing over clothes and the like, because a lot can go wrong. Things can be damaged, your bag can get lost, you miss a connection and the bag goes one way while you're stuck somewhere else. The possibilities are all but endless. As much as I dread the thought of losing my things, in the end, they are just things. In the grand scheme of traveling, having your bag lost or misplaced isn’t the end of the world. But what if, instead of your suitcase filled to the brim with possessions, an airline lost your dog? This is what happened to one recent traveler. Frank Romano boarded a Delta flight from California to Florida after handing over his pit bull, Ty, to travel in a kennel. Before the flight left, though, Frank was told that Ty had chewed his way out of the kennel and was lost. Delta claims to be doing all things possible to find Ty and the airline has offered Frank a 0 credit for future travel. No, that is not a typographical error. A dog is missing and Delta has offered only 0 in consolation. How can this be? Is Delta liable for the loss of the dog? If so, for how much? These are all the questions that flooded my head as I read about Frank and Ty. If you’re just as curious, here are a few answers:
  • Yes, airlines are liable for lost or damaged baggage, which includes a dog. Airlines limit their liability and must meet a minimum that is set by the federal government. Currently, the minimum dollar amount airlines can establish to compensate for lost, delayed and damaged baggage on domestic flights is ,400.
  • A quick check of Delta's policy on baggage liability reveals that the airline has gone with the minimum.
  • Passengers may declare a higher value for their baggage, making an airline liable for more than the minimum, but said passenger must do so before the flight and must pay a fee.
  • A passenger can challenge the liability limit. In general, though, as long as the passenger had notice of the limit and an opportunity to declare a higher value for that baggage, the limit will hold up in court.
As far as I can tell, Frank did not declare a higher value, so it looks like any liability for his missing dog would be capped at ,400. And case law has tended to stand by an airline's minimum liability. For example, in 1983, Thomas Deiro shipped nine racing greyhounds by air from Portland to Boston. During a layover in Dallas, the airline left the dogs in their cages in 97° heat. Seven of the dogs died, and two were injured. Deiro sued American Airlines for 0,000, but the court only awarded him 0, which was the liability limit at the time. The court reasoned that as an experienced traveler, Deiro should have declared a higher value for his dogs. In its decision, the court stated, "We find it difficult to imagine how any passenger with Deiro's experience, planning to check a quarter of a million dollars worth of baggage, could have had more opportunity or incentive to familiarize himself with the baggage liability provisions." In sum, airlines have a long and protected history in limiting their liability. Nevertheless, here’s hoping that Ty and Frank are reunited soon. You can hear more of my thoughts on this topic on the Legal Lis podcast: foxrad.io/1xhHHJd   ]]>
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Legal Lis: Homeowners Association Battles with an Elderly Veteran over a Flagpole http://www.liswiehlbooks.com/2014/11/legal-lis-homeowners-association-battles-with-an-elderly-veteran-over-a-flagpole/ http://www.liswiehlbooks.com/2014/11/legal-lis-homeowners-association-battles-with-an-elderly-veteran-over-a-flagpole/#comments Mon, 03 Nov 2014 14:37:16 +0000 http://www.liswiehlbooks.com/?p=1354 Lis

An 82-year-old man and his wife have recently been fielding letters from their homeowners association related to the flagpole they have in their front yard. The couple was first told in September that their flagpole should be removed from the front yard because it was not mounted to their home. But Bob Willits, who served four years during the Korean War, and his wife, Judy, are fighting the requests from the Fieldstone Homeowners Association. At first blush, it’s hard for me to imagine why a homeowners association would be so set on fighting a flagpole. As far as I can tell, it isn’t blocking a public sidewalk, it’s not endangering people in the neighborhood, and there’s nothing obscene of offensive being flown from the flagpole. No, it’s seems to be just two people intent on expressing their patriotism. Beyond this, though, there’s also the fact that there’s something called the Freedom to Display the American Flag Act of 2005, which intends to prevent the likes of a homeowners association from restricting homeowners when it comes to displaying the U.S. flag on their property. For the legally inclined, here’s the text of the American Flag Act:
SECTION 1. SHORT TITLE. This Act may be cited as the `Freedom to Display the American Flag Act of 2005'. SEC. 2. DEFINITIONS. For purposes of this Act-- 1. the term `flag of the United States' has the meaning given the term `flag, standard, colors, or ensign' under section 3 of title 4, United States Code; 2. the terms `condominium association' and `cooperative association' have the meanings given such terms under section 604 of Public Law 96-399 (15 U.S.C. 3603); 3. the term `residential real estate management association' has the meaning given such term under section 528 of the Internal Revenue Code of 1986 (26 U.S.C. 528); and 4. the term `member'--
(A) as used with respect to a condominium association, means an owner of a condominium unit (as defined under section 604 of Public Law 96-399 (15 U.S.C. 3603)) within such association; (B) as used with respect to a cooperative association, means a cooperative unit owner (as defined under section 604 of Public Law 96-399 (15 U.S.C. 3603)) within such association; and (C) as used with respect to a residential real estate management association, means an owner of a residential property within a subdivision, development, or similar area subject to any policy or restriction adopted by such association.
 SEC. 3. RIGHT TO DISPLAY THE FLAG OF THE UNITED STATES. A condominium association, cooperative association, or residential real estate management association may not adopt or enforce any policy, or enter into any agreement, that would restrict or prevent a member of the association from displaying the flag of the United States on residential property within the association with respect to which such member has a separate ownership interest or a right to exclusive possession or use. SEC. 4. LIMITATIONS. Nothing in this Act shall be considered to permit any display or use that is inconsistent with-- 1. any provision of chapter 1 of title 4, United States Code, or any rule or custom pertaining to the proper display or use of the flag of the United States (as established pursuant to such chapter or any otherwise applicable provision of law); or 2. any reasonable restriction pertaining to the time, place, or manner of displaying the flag of the United States necessary to protect a substantial interest of the condominium association, cooperative association, or residential real estate management association.
According to the homeowners association, it has authority to request the removal of the flagpole under Section 4, Part 2. Evidently, it believes that it has a substantial interest in restricting the “time, place, or manner” of the Willits’ flagpole. What do you think? Does the Homeowners Association have the right to make this request? Is there a substantial interest? Hear my thoughts on the Legal Lis podcast: http://foxrad.io/1zKC1Jn ]]>
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Legal Lis Podcast: Thomas Eric Duncan’s Family Eyes Lawsuit http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-thomas-eric-duncans-family-eyes-lawsuit/ http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-thomas-eric-duncans-family-eyes-lawsuit/#comments Fri, 17 Oct 2014 21:17:45 +0000 http://www.liswiehlbooks.com/?p=1347 TD

No doubt you’ve heard of Thomas Duncan, that he was the first person to be diagnosed with Ebola on United States soil, and that he died from the disease on October 8, 2014 at Texas Health Presbyterian Hospital. There’s certainly more to the story, though, like the suggestion that he lied to airport screeners in Liberia in order to come to the United States. What’s known is that he helped a pregnant woman in Liberia who was infected with Ebola. What some say is not so clear is whether or not he had reason to believe he might be infected when he boarded a plane to come the U.S. Another huge part of the story is what happened once he got here. He went to Texas Health Presbyterian Hospital with a fever shortly after arriving from Liberia. The story goes that he mentioned that he had been to Liberia but that information was not properly relayed to the appropriate people. And so, he was sent home with some antibiotics. Two days later, he returned to the hospital in an ambulance and this time, proper precautions were taken and he was isolated. Shortly thereafter, he died. So far, two of the nurses involved in the treatment of Duncan have been diagnosed with Ebola. And many others are being monitored. The short of it is that Ebola is not just a story we observe from afar anymore. It’s here, in our own backyard, so to speak. And now, there is talk of a lawsuit brought by Duncan’s family against the hospital related to his treatment. So what we’re talking about is a potential medical malpractice lawsuit. In general, medical malpractice occurs when a doctor or medical professional fails to competently perform his or her duties. In other words, the doctor or medical professional was negligent in relation to his or her treatment of a patient. In Texas, the statute related to medical malpractice sets an extremely high bar when it comes to proving that there was medical malpractice. For the mildly curious, the gist of the law is that it must be proven that doctors were “wilfully or wantonly negligent.” For the extremely curious, the laws says the following:
Sec. 74.151. LIABILITY FOR EMERGENCY CARE (a) A person who in good faith administers emergency care is not liable in civil damages for an act performed during the emergency unless the act is wilfully or wantonly negligent, including a person who:

(1) administers emergency care using an automated external defibrillator; or

(2) administers emergency care as a volunteer who is a first responder as the term is defined under Section 421.095, Government Code.

(b) This section does not apply to care administered:

(1) for or in expectation of remuneration, provided that being legally entitled to receive remuneration for the emergency care rendered shall not determine whether or not the care was administered for or in anticipation of remuneration; or

(2) by a person who was at the scene of the emergency because he or a person he represents as an agent was soliciting business or seeking to perform a service for remuneration.

(c), (d) Deleted by Acts 2003, 78th Leg., ch. 204, Sec. 10.01. (e) Except as provided by this subsection, this section does not apply to a person whose negligent act or omission was a producing cause of the emergency for which care is being administered. This subsection does not apply to liability of a school district or district school officer or employee arising from an act or omission under a program or policy or procedure adopted under Subchapter O-1, Chapter 161, Health and Safety Code, other than liability arising from wilful or intentional misconduct.
So, are we talking about doctors and medical professionals who were “wilfully and wantonly” negligent? Yes, Duncan was initially released from the hospital with a fever of 103 and had relayed the fact that he had been in Liberia. Yes, the hospital made a few missteps. But, under Texas law, it’s going to be a really tough case to prove. What are your thoughts on Thomas Duncan and the possibility of a lawsuit brought by his family? You can hear more of my thoughts on the Legal Lis podcast: foxrad.io/1w3mnns ]]>
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Legal Lis Podcast: The Supreme Court Denies All Same-Sex Marriage Petitions http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-the-supreme-court-denies-all-same-sex-marriage-petitions/ http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-the-supreme-court-denies-all-same-sex-marriage-petitions/#comments Fri, 10 Oct 2014 18:35:47 +0000 http://www.liswiehlbooks.com/?p=1342 SC

This week, the Supreme Court denied all seven petitions related to same-sex marriage, which may or may not come as a shock to you. You are likely to recall that in June 2013, in United States v. Windsor, the Supreme Court struck down Section 3 of the federal Defense of Marriage Act, which had defined “marriage” as a union between a man and a woman. This five-to-four decision meant that same-sex couples who were married in states where same-sex marriage was legal would have the same rights as other married couples when it came to things like, say, filing joint federal tax returns. After the Windsor case, we all knew that the same-sex marriage issue would be back in the Supreme Court. We also knew that the Court was not completely opposed to addressing the issue. So you wouldn't be totally off-base in assuming that the Supreme Court would take on at least one of these seven petitions. But, if you were really tuning in, the denial of the petitions is not all that surprising. For instance, recently, Justice Ruth Bader Ginsburg suggested that the Court might not take on the current issue because there was no disagreement among the lower courts at this point. And it seems as though her prediction was correct. But the fact that the Supreme Court has denied these petitions does not mean that there are not huge effects, so it's important to understand these cases and know what to expect in the future. To begin with, let’s look at the seven petitions the Court denied:
  • Baskin v. Bogan (Indiana): This case challenged the state's denial of marriage rights to same-sex couples. It was filed in federal district court on March 12, 2014 where Chief Judge Richard Young found for the plaintiffs. A three-judge panel of the U.S. Court of Appeals for the Seventh Circuit upheld the district court ruling in a unanimous decision on September 4. Both parties asked the Supreme Court to consider the case.
  • Walker v. Wolf (Wisconsin): This is federal lawsuit filed in February 2014 that challenged Wisconsin's refusal to grant marriage licenses to same-sex couples. In June 2014, Judge Barbara Crabb of the U.S. District Court for the Western District of Wisconsin ruled for the plaintiffs. The state appealed her decision to the Seventh Circuit Court of Appeals, which affirmed her opinion in a unanimous decision on September 4. Wisconsin asked the Supreme Court to consider the case.
  • Herbert v. Kitchen (Utah): A federal case that challenged Utah's constitutional ban on marriage for same-sex couples. Three same-sex couples filed suit in March 2013. In December 2013, the U.S. District Court for the District of Utah found the state's ban on same-sex marriage unconstitutional. In June 2014, the Tenth Circuit Court of Appeals affirmed the decision of the district court. All parties supported review by the Supreme Court.
  • McQuigg v. Bostic, Rainey v. Bostic, Schaefer v. Bostic (Virginia): A group of same-sex couples in Virginia filed suit to challenge the state’s refusal to acknowledge same-sex marriages. The Fourth Circuit Court of Appeals ruled for the plaintiffs and the case went to the Supreme Court for consideration.
  • Smith v. Bishop (Oklahoma): Two same-sex couples challenged Oklahoma's ban on same-sex marriage. In January 2014, U.S. District Court Judge Terence Kern ruled that Oklahoma's ban on same-sex marriage was unconstitutional. The Tenth Circuit Court of Appeals affirmed.
In the coming days and weeks, you can expect that same-sex marriages will be permitted when existing lower-court rulings against state bans go into effect in Indiana, Wisconsin, Utah, Virginia, and Oklahoma. Also, when the court of appeals rulings are implemented, same-sex marriages can occur in North Carolina, South Carolina and West Virginia (Fourth Circuit) and in Colorado, Kansas, and Wyoming (Tenth Circuit). And finally, four other circuits – the Fifth, Sixth, Ninth, and Eleventh – are currently considering the constitutionality of same-sex marriages. And these circuits could make decisions based on how they interpret what the Supreme Court did. Needless to say, denying the petitions has had and will have a resounding impact. You can hear my thoughts on this topic on the Legal Lis podcast: foxrad.io/1v2H4St ]]>
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Legal Lis Podcast: Is Alton Nolen a Terrorist? http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-is-alton-nolen-a-terrorist/ http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-is-alton-nolen-a-terrorist/#comments Fri, 03 Oct 2014 17:48:29 +0000 http://www.liswiehlbooks.com/?p=1337 LL

Colleen Hufford was beheaded by 30- year-old Alton Nolen during a gruesome attack at a Vaughan Foods plant in Oklahoma. Nolen was also able to repeatedly stab another victim, Traci Johnson, before he was shot by the company's CEO, Mark Vaughan, who is also a reserve deputy sheriff. Nolen had been suspended from the company just before he went into Vaughan’s administrative office and attacked the women. Cleveland County prosecutor Greg Mashburn said on Tuesday, 09/30/14, that Nolen will be charged with first-degree murder as well as assault charges. The good news is that first-degree murder in Oklahoma can result in the death penalty. And it’s not unlikely that this would be Nolen’s fate. But some aren’t satisfied, saying that Nolen is a terrorist and should be charged as such. Before I voiced an opinion one way or the other, I wanted to do a little digging of my own. In essence, I wanted a list of all of the things that point to charging Nolen as a terrorist. Here’s what I’ve come up with:
  • Nolen recently converted to Islam and reportedly tried to convert co-workers to Islam.
  • Nolen used Arabic terms during his attack.
  • On his Facebook account, Nolen posted photos of Osama bin Laden, other jihadis, and the Twin Towers burning.
  • His Facebook account also included a very graphic photo of a beheaded victim.
  • He reportedly wrote the following on his Facebook: "She (the Statue of Liberty) is going into flames. She and anybody who's with her."
  • He posted photos of a woman being flogged with the words "Islam will dominate the world. Freedom can go to hell."
  • There are some reports that Suhaib Webb, an imam with known ties to former Al Qaeda mastermind Anwar al Awlaki, appears to have influenced the life of Alton Nolen. Webb, who was once the leader of the Islamic Society of Greater Oklahoma City, now serves as an imam at a mosque in Boston once attended by accused Boston Marathon bombers Dzhokhar and Tamerlan Tsarnaev.
  • Possibly copying ISIS: ISIS has posted for all to see the beheadings of James Foley, Steven Sotloff, and David Haines. This gives terrorists inspiration to copy. It could be that Nolen was acting as a so-called “lone wolf”. Just last week, an ISIS leader, Abu Muhammad al-Adnani, released a recorded speech directed toward "lone wolf" operations and encouraging terrorists to act. "Do not ask for anyone's advice and do not seek anyone's verdict, kill the infidel whether he is civilian or military."
No one factor on its own necessarily spells terrorist, but when combined, you definitely have to wonder. Do you have anything else you think should be added to the list? And do you think Alton Nolen is a terrorist? You can hear my thoughts on how Nolen should be charged on the Legal Lis podcast: foxrad.io/1pGfa6P ]]>
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Legal Lis Podcast: Ray Rice and Double Jeopardy http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-ray-rice-and-double-jeopardy/ http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-ray-rice-and-double-jeopardy/#comments Fri, 26 Sep 2014 20:07:15 +0000 http://www.liswiehlbooks.com/?p=1329 RR Unless you’ve successfully avoided all types of news and gossip lately, you’ve heard about Ray Rice’s recent scandal. What’s more, you’ve probably seen the tragic video in which he punched his then-fiancé, knocking her out, and then dragged her out of an elevator. For Ray Rice – and the NFL – the release of the video footage changed everything. Seeing what he did somehow makes it more despicable, if that’s possible. Seeing it as a video outrages us and incites us to question the NFL. And seeing that video gives us something palpable to arm ourselves with when deciding how we feel about the situation. No doubt about it, Ray Rice should not be given the opportunity to play professional football again. But, legally, it’s not so clear. The first thing to understand is that NFL’s collective bargaining agreement does not have a so-called “double jeopardy” provision. What is does have is Article 46, Section 4, which states that a player cannot be disciplined twice “for the same act or conduct.” The importance of this provision really hinges on when the powers that be at the NFL had and knew about the video showing the assault. There are allegations that the surveillance video of Rice’s assault was sent to league security chief Jeffry Miller in April. There is also talk that there is a voicemail from league offices confirming receipt of said video on April 9. If this is true, then when Ray Rice was punished with a two-game suspension, that should have been the end of it. If NFL officials had already seen the video, then they knew all there was to know and had somehow decided that a two-game suspension was enough of a punishment. Under this version, you’d have to assume that once the video was leaked to the masses, the NFL reacted with an indefinite suspension to nullify the outrage. The problem here is that the two-game suspension was punishment number one. And because of Article 46, Section 4, Rice can’t be punished again for the same act or conduct. On the other hand, you have Miller saying, "I unequivocally deny that I received at any time a copy of the video and I had not watched it until it was made public on September 8.” And NFL Commissioner Roger Goodell has publicly said several times that no one in his office viewed the video until TMZ posted it on its website in September. If this is the truth, then the video brought new information to the table, and so it might be appropriate to revise the two-game suspension. Eventually, the truth will come out. We will know one way or another exactly when Goodell and company knew of the video. And this truth will likely have a huge impact on Rice’s future as a player. Which version of the story do you believe? Do you think people within the NFL saw the video before giving Rice his first punishment? Hear my thoughts in the latest Legal Lis podcast: foxrad.io/1pjtSAK ]]> http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-ray-rice-and-double-jeopardy/feed/ 1 Legal Lis Podcast: The Adrian Peterson Child Injury Case http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-the-adrian-peterson-child-injury-case/ http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-the-adrian-peterson-child-injury-case/#comments Thu, 18 Sep 2014 16:18:23 +0000 http://www.liswiehlbooks.com/?p=1319 Untitled1 In this week’s Legal Lis, one of the subjects I discussed was the recent issue involving Adrian Peterson and his method of disciplining his child. If you haven’t heard much on this story, the basic facts are as follows: Peterson, who plays for the Minnesota Vikings, has been indicted by a Texas grand jury for beating his four-year-old son with a “switch.” The incident occurred in May in Spring, Texas following an argument between Peterson’s son and another child over a video game. Peterson chalked it up to his style of parenting, simply a way to discipline his son, but the extensive injuries piqued the interest of law enforcement. According to reports and photos from the Houston Police Department, Peterson’s son received visible cuts and bruises to his back, buttocks, legs, hands and even scrotum. Because of the severity of the injuries, Peterson now faces charges of injury to a child. This case inevitably makes you wonder: To what extent should parents be permitted to discipline their children as they see fit? The emotional response is oftentimes that a parent should have a lot of freedom in doing just that, parenting. Some parents spank, some use timeouts, others take things away – each parent has a different way of enforcing rules and setting boundaries. And parents should have that right. You could argue all day that one way is better than the next, but in the end, a parent is going to raise their children (hopefully) in the way they think will result in kids who respect others and who recognize boundaries. I know good parents who spank and I know good parents who would never discipline physically – and neither method is necessarily better or worse than the other. But a problem arises when the fine line between spanking to discipline and actually beating a child is blurred. And when that line is blurred or crossed, that is precisely where the legal side of things comes in. For the most part, states tend to agree that a parent should be able to discipline a child - to a certain extent - as he or she sees fit. For example, here in New York, a “parent, guardian or other person entrusted with the care and supervision of a person under the age of twenty-one……may use physical force, but not deadly physical force, upon such person when and to the extent that he reasonably believes it necessary to maintain discipline or to promote the welfare of such person.”  And a New York court recently held that when a father spanked his child with an open hand in order to discipline the child, this was a “reasonable use of force.” A four-judge panel ruled in the unanimous decision that, “the father’s open-handed spanking of the child as a form of discipline after he heard the child curse at an adult was a reasonable use of force and, under the circumstances presented here, did not constitute excessive corporal punishment.” In California, “’serious physical harm’ does not include reasonable and age-appropriate spanking to the buttocks where there is no evidence of serious physical injury.”  And a court has recently found that a California mother who used a wooden spoon to spank her 12-year-old was not a child abuser. Laws and cases all across the U.S. support the notion that a parent can discipline their children when it’s reasonable. So what’s the big deal with Adrian Peterson? Well, primarily, it’s that his method of discipline was pretty extreme. Some would argue that the punishment went well beyond just plain maintaining discipline. The law in Texas is pretty lenient when it comes to parental discipline, stating that “the use of force, but not deadly force, against a child younger than 18 years is justified: (1) if the actor is the child's parent or stepparent or is acting in loco parentis to the child; and (2) when and to the degree the actor reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare.​” But that doesn’t mean a parent can beat a child in Texas without breaking the law. What this law clearly does is leave a lot of room for parents to decide how to discipline. What it does not do is allow a parent to beat a child and say it’s in the name of discipline after the fact. The fact that a second grand jury has indicted Peterson on a child-injury charge indicates that at least some believe he went beyond what the law allows. But Peterson maintains that his conduct was reasonable. What do you think? You can hear more of my thoughts on this issue on the Legal Lis podcast: http://foxrad.io/1pjtSAK ]]> http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-the-adrian-peterson-child-injury-case/feed/ 2 Legal Lis Podcast: Celebrity Nude Photo Hack and California’s New “Yes-Means-Yes” Bill http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-celebrity-nude-photo-hack-and-californias-new-yes-means-yes-bill/ http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-celebrity-nude-photo-hack-and-californias-new-yes-means-yes-bill/#comments Thu, 04 Sep 2014 18:22:41 +0000 http://www.liswiehlbooks.com/?p=1303 LL

In this week’s Legal Lis, I discussed many of the legal aspects related to the recently leaked nude photos of Jennifer Lawrence and other celebrities. I also talked about California’s new “Yes-Means-Yes” bill, which is related to sexual assault on college campuses. Below, I’ve included some of the legal issues that arise from these two topics as well as my thoughts. If you want to hear the full discussion, you can now listen to the Legal Lis podcast here: http://foxrad.io/1oDQawL Celebrity Nude Photo Hack: It’s hard to feel safe on the Internet. With all the hacking going on, it’s almost impossible for a person to expect that private information will, in fact, remain private. Identity theft, stolen credit card info, leaked photos, hacked emails – you don’t have to look too far to find a story that involves at least one of these issues. Enter the latest story in which several celebrities had private photos stolen and leaked to the masses. Some argue that these celebrities shouldn’t be surprised. If you have nude photos stored somewhere on the Internet, you’re exposing yourself to the possibility that these photos will end up in the wrong hands. Others think that when a person sends an intimate photo to a significant other or spouse or friend – in some way that’s intended to remain private – you should be able to expect that those photos will remain private. No matter which way you lean on this issue, there are laws that apply. One issue that has to be discussed related to this leak is what kind of liability there is for Twitter, Facebook and other sites that have or had links to the photos. Legally, the truth is that there is not much liability. Section 230 of the Communications Decency Act is a federal law that creates a lot of protection for providers of an “interactive computer service.” In fact, the law states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Case law testing the immunity of Internet service providers under Section 230 almost always goes the way of no liability. For example, in one case, the Fourth Circuit Court of Appeals found that “lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions — such as deciding whether to publish, withdraw, postpone or alter content — are barred.” The decision goes on to point out that “Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum.” This is just one of the issues that arise from the recent photo hack. You can hear more – including discussion on revenge porn and punishment for the people who actually do the hacking – on the Legal Lis podcast. What do you think: Should we expect privacy on the Internet? Should Twitter and the like be held liable? California’s “Yes-Means-Yes” Bill  The so-called “yes-means-yes” bill, which was passed unanimously by the California State Senate, would require universities in CA to adopt a standard of unambiguous consent from all parties engaging in sexual activity. The bill defines affirmative consent as an “affirmative, conscious, and voluntary agreement to engage in sexual activity” and goes on to state that it “is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity.” That someone doesn’t protest or resist does not equal consent. Neither does silence. The goal of the bill is to prevent sexual assault on campus. And with the White House reporting that 1 in 5 female college students is sexually assaulted while in college, this is a laudable and necessary goal. But some aren’t convinced the bill will achieve its goals, arguing that people who don’t get an explicit “yes” before sex will be deemed rapists even though there was, say, nonverbal affirmation. What are your thoughts: Do you think this bill is a good idea? Can it achieve its goals?   I hope you enjoy the new podcast! Every Thursday from now on, a Legal Lis podcast will be made available so you can listen to the topics I'm discussing.              ]]>
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Q&A on Police Brutality, Part II http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-celebrity-nude-photo-hack-and-californias-new-yes-means-yes-bill/ http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-celebrity-nude-photo-hack-and-californias-new-yes-means-yes-bill/#comments Thu, 04 Sep 2014 18:22:41 +0000 http://www.liswiehlbooks.com/?p=1303 LL

In this week’s Legal Lis, I discussed many of the legal aspects related to the recently leaked nude photos of Jennifer Lawrence and other celebrities. I also talked about California’s new “Yes-Means-Yes” bill, which is related to sexual assault on college campuses. Below, I’ve included some of the legal issues that arise from these two topics as well as my thoughts. If you want to hear the full discussion, you can now listen to the Legal Lis podcast here: http://foxrad.io/1oDQawL Celebrity Nude Photo Hack: It’s hard to feel safe on the Internet. With all the hacking going on, it’s almost impossible for a person to expect that private information will, in fact, remain private. Identity theft, stolen credit card info, leaked photos, hacked emails – you don’t have to look too far to find a story that involves at least one of these issues. Enter the latest story in which several celebrities had private photos stolen and leaked to the masses. Some argue that these celebrities shouldn’t be surprised. If you have nude photos stored somewhere on the Internet, you’re exposing yourself to the possibility that these photos will end up in the wrong hands. Others think that when a person sends an intimate photo to a significant other or spouse or friend – in some way that’s intended to remain private – you should be able to expect that those photos will remain private. No matter which way you lean on this issue, there are laws that apply. One issue that has to be discussed related to this leak is what kind of liability there is for Twitter, Facebook and other sites that have or had links to the photos. Legally, the truth is that there is not much liability. Section 230 of the Communications Decency Act is a federal law that creates a lot of protection for providers of an “interactive computer service.” In fact, the law states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Case law testing the immunity of Internet service providers under Section 230 almost always goes the way of no liability. For example, in one case, the Fourth Circuit Court of Appeals found that “lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions — such as deciding whether to publish, withdraw, postpone or alter content — are barred.” The decision goes on to point out that “Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum.” This is just one of the issues that arise from the recent photo hack. You can hear more – including discussion on revenge porn and punishment for the people who actually do the hacking – on the Legal Lis podcast. What do you think: Should we expect privacy on the Internet? Should Twitter and the like be held liable? California’s “Yes-Means-Yes” Bill  The so-called “yes-means-yes” bill, which was passed unanimously by the California State Senate, would require universities in CA to adopt a standard of unambiguous consent from all parties engaging in sexual activity. The bill defines affirmative consent as an “affirmative, conscious, and voluntary agreement to engage in sexual activity” and goes on to state that it “is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity.” That someone doesn’t protest or resist does not equal consent. Neither does silence. The goal of the bill is to prevent sexual assault on campus. And with the White House reporting that 1 in 5 female college students is sexually assaulted while in college, this is a laudable and necessary goal. But some aren’t convinced the bill will achieve its goals, arguing that people who don’t get an explicit “yes” before sex will be deemed rapists even though there was, say, nonverbal affirmation. What are your thoughts: Do you think this bill is a good idea? Can it achieve its goals?   I hope you enjoy the new podcast! Every Thursday from now on, a Legal Lis podcast will be made available so you can listen to the topics I'm discussing.              ]]>
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Lis Wiehl Books http://www.liswiehlbooks.com FOX News Legal Analyst and Author Fri, 05 Dec 2014 20:34:01 +0000 en-US hourly 1 http://wordpress.org/?v=3.9.3 Legal Lis: Brown Family Lawyer Will Pursue “Every Legal Avenue” http://www.liswiehlbooks.com/2014/12/legal-lis-brown-family-lawyer-will-pursue-every-legal-avenue/ http://www.liswiehlbooks.com/2014/12/legal-lis-brown-family-lawyer-will-pursue-every-legal-avenue/#comments Fri, 05 Dec 2014 20:33:14 +0000 http://www.liswiehlbooks.com/?p=1367 LW

Even though a grand jury has decided not to indict Darren Wilson for the shooting of Michael Brown, that does not mean that Wilson’s time in court is over. It’s still possible that there will be federal charges, and then there’s the chance of a civil suit brought by Brown’s family. The lawyer for the Brown family recently announced that they would pursue “every legal avenue” available to them. One thing this likely means is a wrongful death suit. Missouri’s law on wrongful death says the following:
537.080. 1. Whenever the death of a person results from any act, conduct, occurrence, transaction, or circumstance which, if death had not ensued, would have entitled such person to recover damages in respect thereof, the person or party who, or the corporation which, would have been liable if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured, which damages may be sued for: (1) By the spouse or children or the surviving lineal descendants of any deceased children, natural or adopted, legitimate or illegitimate, or by the father or mother of the deceased, natural or adoptive; (2) If there be no persons in class (1) entitled to bring the action, then by the brother or sister of the deceased, or their descendants, who can establish his or her right to those damages set out in section 537.090 because of the death; (3) If there be no persons in class (1) or (2) entitled to bring the action, then by a plaintiff ad litem. Such plaintiff ad litem shall be appointed by the court having jurisdiction over the action for damages provided in this section upon application of some person entitled to share in the proceeds of such action. Such plaintiff ad litem shall be some suitable person competent to prosecute such action and whose appointment is requested on behalf of those persons entitled to share in the proceeds of such action. Such court may, in its discretion, require that such plaintiff ad litem give bond for the faithful performance of his duties.
In short, this means a wrongful death claim can be brought against a person whose negligent or intentional actions caused the death of another person. And to win a wrongful death suit, the Brown family has a much lighter burden than there would have been in a criminal case. In general, crimes must be proven beyond a reasonable doubt. In a civil wrongful death suit, though, the standard of proof is a preponderance of evidence, which basically just means that it is more likely than not that a certain thing happened. In a wrongful death suit against Darren Wilson, it would have to be shown that it is more likely than not that Wilson’s actions were responsible for Michael Brown’s death. Many watched as Prosecuting Attorney Bob McCulloch announced that there would be no indictment for Darren Wilson. We also saw the outraged reactions from protestors in and around Ferguson, Missouri. Then came Wilson’s resignation from the Ferguson Police Department. What’s next in this story has yet to be determined, but it would not be a shock to hear that the Brown family is moving forward with a wrongful death suit. What are your thoughts on the subject? Hear mine on the latest Legal Lis podcast: foxrad.io/1BdNfpQ ]]>
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Legal Lis: Delta Offers 0 Credit to Owner for Lost Dog http://www.liswiehlbooks.com/2014/11/legal-lis-delta-offers-200-credit-to-owner-for-lost-dog/ http://www.liswiehlbooks.com/2014/11/legal-lis-delta-offers-200-credit-to-owner-for-lost-dog/#comments Fri, 14 Nov 2014 20:04:09 +0000 http://www.liswiehlbooks.com/?p=1361 delta   Every time you fly, if you check your bags, you have to trust someone else to take care of and deliver your possessions. I always get more than just a little anxious at the thought of handing over clothes and the like, because a lot can go wrong. Things can be damaged, your bag can get lost, you miss a connection and the bag goes one way while you're stuck somewhere else. The possibilities are all but endless. As much as I dread the thought of losing my things, in the end, they are just things. In the grand scheme of traveling, having your bag lost or misplaced isn’t the end of the world. But what if, instead of your suitcase filled to the brim with possessions, an airline lost your dog? This is what happened to one recent traveler. Frank Romano boarded a Delta flight from California to Florida after handing over his pit bull, Ty, to travel in a kennel. Before the flight left, though, Frank was told that Ty had chewed his way out of the kennel and was lost. Delta claims to be doing all things possible to find Ty and the airline has offered Frank a 0 credit for future travel. No, that is not a typographical error. A dog is missing and Delta has offered only 0 in consolation. How can this be? Is Delta liable for the loss of the dog? If so, for how much? These are all the questions that flooded my head as I read about Frank and Ty. If you’re just as curious, here are a few answers:
  • Yes, airlines are liable for lost or damaged baggage, which includes a dog. Airlines limit their liability and must meet a minimum that is set by the federal government. Currently, the minimum dollar amount airlines can establish to compensate for lost, delayed and damaged baggage on domestic flights is ,400.
  • A quick check of Delta's policy on baggage liability reveals that the airline has gone with the minimum.
  • Passengers may declare a higher value for their baggage, making an airline liable for more than the minimum, but said passenger must do so before the flight and must pay a fee.
  • A passenger can challenge the liability limit. In general, though, as long as the passenger had notice of the limit and an opportunity to declare a higher value for that baggage, the limit will hold up in court.
As far as I can tell, Frank did not declare a higher value, so it looks like any liability for his missing dog would be capped at ,400. And case law has tended to stand by an airline's minimum liability. For example, in 1983, Thomas Deiro shipped nine racing greyhounds by air from Portland to Boston. During a layover in Dallas, the airline left the dogs in their cages in 97° heat. Seven of the dogs died, and two were injured. Deiro sued American Airlines for 0,000, but the court only awarded him 0, which was the liability limit at the time. The court reasoned that as an experienced traveler, Deiro should have declared a higher value for his dogs. In its decision, the court stated, "We find it difficult to imagine how any passenger with Deiro's experience, planning to check a quarter of a million dollars worth of baggage, could have had more opportunity or incentive to familiarize himself with the baggage liability provisions." In sum, airlines have a long and protected history in limiting their liability. Nevertheless, here’s hoping that Ty and Frank are reunited soon. You can hear more of my thoughts on this topic on the Legal Lis podcast: foxrad.io/1xhHHJd   ]]>
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Legal Lis: Homeowners Association Battles with an Elderly Veteran over a Flagpole http://www.liswiehlbooks.com/2014/11/legal-lis-homeowners-association-battles-with-an-elderly-veteran-over-a-flagpole/ http://www.liswiehlbooks.com/2014/11/legal-lis-homeowners-association-battles-with-an-elderly-veteran-over-a-flagpole/#comments Mon, 03 Nov 2014 14:37:16 +0000 http://www.liswiehlbooks.com/?p=1354 Lis

An 82-year-old man and his wife have recently been fielding letters from their homeowners association related to the flagpole they have in their front yard. The couple was first told in September that their flagpole should be removed from the front yard because it was not mounted to their home. But Bob Willits, who served four years during the Korean War, and his wife, Judy, are fighting the requests from the Fieldstone Homeowners Association. At first blush, it’s hard for me to imagine why a homeowners association would be so set on fighting a flagpole. As far as I can tell, it isn’t blocking a public sidewalk, it’s not endangering people in the neighborhood, and there’s nothing obscene of offensive being flown from the flagpole. No, it’s seems to be just two people intent on expressing their patriotism. Beyond this, though, there’s also the fact that there’s something called the Freedom to Display the American Flag Act of 2005, which intends to prevent the likes of a homeowners association from restricting homeowners when it comes to displaying the U.S. flag on their property. For the legally inclined, here’s the text of the American Flag Act:
SECTION 1. SHORT TITLE. This Act may be cited as the `Freedom to Display the American Flag Act of 2005'. SEC. 2. DEFINITIONS. For purposes of this Act-- 1. the term `flag of the United States' has the meaning given the term `flag, standard, colors, or ensign' under section 3 of title 4, United States Code; 2. the terms `condominium association' and `cooperative association' have the meanings given such terms under section 604 of Public Law 96-399 (15 U.S.C. 3603); 3. the term `residential real estate management association' has the meaning given such term under section 528 of the Internal Revenue Code of 1986 (26 U.S.C. 528); and 4. the term `member'--
(A) as used with respect to a condominium association, means an owner of a condominium unit (as defined under section 604 of Public Law 96-399 (15 U.S.C. 3603)) within such association; (B) as used with respect to a cooperative association, means a cooperative unit owner (as defined under section 604 of Public Law 96-399 (15 U.S.C. 3603)) within such association; and (C) as used with respect to a residential real estate management association, means an owner of a residential property within a subdivision, development, or similar area subject to any policy or restriction adopted by such association.
 SEC. 3. RIGHT TO DISPLAY THE FLAG OF THE UNITED STATES. A condominium association, cooperative association, or residential real estate management association may not adopt or enforce any policy, or enter into any agreement, that would restrict or prevent a member of the association from displaying the flag of the United States on residential property within the association with respect to which such member has a separate ownership interest or a right to exclusive possession or use. SEC. 4. LIMITATIONS. Nothing in this Act shall be considered to permit any display or use that is inconsistent with-- 1. any provision of chapter 1 of title 4, United States Code, or any rule or custom pertaining to the proper display or use of the flag of the United States (as established pursuant to such chapter or any otherwise applicable provision of law); or 2. any reasonable restriction pertaining to the time, place, or manner of displaying the flag of the United States necessary to protect a substantial interest of the condominium association, cooperative association, or residential real estate management association.
According to the homeowners association, it has authority to request the removal of the flagpole under Section 4, Part 2. Evidently, it believes that it has a substantial interest in restricting the “time, place, or manner” of the Willits’ flagpole. What do you think? Does the Homeowners Association have the right to make this request? Is there a substantial interest? Hear my thoughts on the Legal Lis podcast: http://foxrad.io/1zKC1Jn ]]>
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Legal Lis Podcast: Thomas Eric Duncan’s Family Eyes Lawsuit http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-thomas-eric-duncans-family-eyes-lawsuit/ http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-thomas-eric-duncans-family-eyes-lawsuit/#comments Fri, 17 Oct 2014 21:17:45 +0000 http://www.liswiehlbooks.com/?p=1347 TD

No doubt you’ve heard of Thomas Duncan, that he was the first person to be diagnosed with Ebola on United States soil, and that he died from the disease on October 8, 2014 at Texas Health Presbyterian Hospital. There’s certainly more to the story, though, like the suggestion that he lied to airport screeners in Liberia in order to come to the United States. What’s known is that he helped a pregnant woman in Liberia who was infected with Ebola. What some say is not so clear is whether or not he had reason to believe he might be infected when he boarded a plane to come the U.S. Another huge part of the story is what happened once he got here. He went to Texas Health Presbyterian Hospital with a fever shortly after arriving from Liberia. The story goes that he mentioned that he had been to Liberia but that information was not properly relayed to the appropriate people. And so, he was sent home with some antibiotics. Two days later, he returned to the hospital in an ambulance and this time, proper precautions were taken and he was isolated. Shortly thereafter, he died. So far, two of the nurses involved in the treatment of Duncan have been diagnosed with Ebola. And many others are being monitored. The short of it is that Ebola is not just a story we observe from afar anymore. It’s here, in our own backyard, so to speak. And now, there is talk of a lawsuit brought by Duncan’s family against the hospital related to his treatment. So what we’re talking about is a potential medical malpractice lawsuit. In general, medical malpractice occurs when a doctor or medical professional fails to competently perform his or her duties. In other words, the doctor or medical professional was negligent in relation to his or her treatment of a patient. In Texas, the statute related to medical malpractice sets an extremely high bar when it comes to proving that there was medical malpractice. For the mildly curious, the gist of the law is that it must be proven that doctors were “wilfully or wantonly negligent.” For the extremely curious, the laws says the following:
Sec. 74.151. LIABILITY FOR EMERGENCY CARE (a) A person who in good faith administers emergency care is not liable in civil damages for an act performed during the emergency unless the act is wilfully or wantonly negligent, including a person who:

(1) administers emergency care using an automated external defibrillator; or

(2) administers emergency care as a volunteer who is a first responder as the term is defined under Section 421.095, Government Code.

(b) This section does not apply to care administered:

(1) for or in expectation of remuneration, provided that being legally entitled to receive remuneration for the emergency care rendered shall not determine whether or not the care was administered for or in anticipation of remuneration; or

(2) by a person who was at the scene of the emergency because he or a person he represents as an agent was soliciting business or seeking to perform a service for remuneration.

(c), (d) Deleted by Acts 2003, 78th Leg., ch. 204, Sec. 10.01. (e) Except as provided by this subsection, this section does not apply to a person whose negligent act or omission was a producing cause of the emergency for which care is being administered. This subsection does not apply to liability of a school district or district school officer or employee arising from an act or omission under a program or policy or procedure adopted under Subchapter O-1, Chapter 161, Health and Safety Code, other than liability arising from wilful or intentional misconduct.
So, are we talking about doctors and medical professionals who were “wilfully and wantonly” negligent? Yes, Duncan was initially released from the hospital with a fever of 103 and had relayed the fact that he had been in Liberia. Yes, the hospital made a few missteps. But, under Texas law, it’s going to be a really tough case to prove. What are your thoughts on Thomas Duncan and the possibility of a lawsuit brought by his family? You can hear more of my thoughts on the Legal Lis podcast: foxrad.io/1w3mnns ]]>
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Legal Lis Podcast: The Supreme Court Denies All Same-Sex Marriage Petitions http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-the-supreme-court-denies-all-same-sex-marriage-petitions/ http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-the-supreme-court-denies-all-same-sex-marriage-petitions/#comments Fri, 10 Oct 2014 18:35:47 +0000 http://www.liswiehlbooks.com/?p=1342 SC

This week, the Supreme Court denied all seven petitions related to same-sex marriage, which may or may not come as a shock to you. You are likely to recall that in June 2013, in United States v. Windsor, the Supreme Court struck down Section 3 of the federal Defense of Marriage Act, which had defined “marriage” as a union between a man and a woman. This five-to-four decision meant that same-sex couples who were married in states where same-sex marriage was legal would have the same rights as other married couples when it came to things like, say, filing joint federal tax returns. After the Windsor case, we all knew that the same-sex marriage issue would be back in the Supreme Court. We also knew that the Court was not completely opposed to addressing the issue. So you wouldn't be totally off-base in assuming that the Supreme Court would take on at least one of these seven petitions. But, if you were really tuning in, the denial of the petitions is not all that surprising. For instance, recently, Justice Ruth Bader Ginsburg suggested that the Court might not take on the current issue because there was no disagreement among the lower courts at this point. And it seems as though her prediction was correct. But the fact that the Supreme Court has denied these petitions does not mean that there are not huge effects, so it's important to understand these cases and know what to expect in the future. To begin with, let’s look at the seven petitions the Court denied:
  • Baskin v. Bogan (Indiana): This case challenged the state's denial of marriage rights to same-sex couples. It was filed in federal district court on March 12, 2014 where Chief Judge Richard Young found for the plaintiffs. A three-judge panel of the U.S. Court of Appeals for the Seventh Circuit upheld the district court ruling in a unanimous decision on September 4. Both parties asked the Supreme Court to consider the case.
  • Walker v. Wolf (Wisconsin): This is federal lawsuit filed in February 2014 that challenged Wisconsin's refusal to grant marriage licenses to same-sex couples. In June 2014, Judge Barbara Crabb of the U.S. District Court for the Western District of Wisconsin ruled for the plaintiffs. The state appealed her decision to the Seventh Circuit Court of Appeals, which affirmed her opinion in a unanimous decision on September 4. Wisconsin asked the Supreme Court to consider the case.
  • Herbert v. Kitchen (Utah): A federal case that challenged Utah's constitutional ban on marriage for same-sex couples. Three same-sex couples filed suit in March 2013. In December 2013, the U.S. District Court for the District of Utah found the state's ban on same-sex marriage unconstitutional. In June 2014, the Tenth Circuit Court of Appeals affirmed the decision of the district court. All parties supported review by the Supreme Court.
  • McQuigg v. Bostic, Rainey v. Bostic, Schaefer v. Bostic (Virginia): A group of same-sex couples in Virginia filed suit to challenge the state’s refusal to acknowledge same-sex marriages. The Fourth Circuit Court of Appeals ruled for the plaintiffs and the case went to the Supreme Court for consideration.
  • Smith v. Bishop (Oklahoma): Two same-sex couples challenged Oklahoma's ban on same-sex marriage. In January 2014, U.S. District Court Judge Terence Kern ruled that Oklahoma's ban on same-sex marriage was unconstitutional. The Tenth Circuit Court of Appeals affirmed.
In the coming days and weeks, you can expect that same-sex marriages will be permitted when existing lower-court rulings against state bans go into effect in Indiana, Wisconsin, Utah, Virginia, and Oklahoma. Also, when the court of appeals rulings are implemented, same-sex marriages can occur in North Carolina, South Carolina and West Virginia (Fourth Circuit) and in Colorado, Kansas, and Wyoming (Tenth Circuit). And finally, four other circuits – the Fifth, Sixth, Ninth, and Eleventh – are currently considering the constitutionality of same-sex marriages. And these circuits could make decisions based on how they interpret what the Supreme Court did. Needless to say, denying the petitions has had and will have a resounding impact. You can hear my thoughts on this topic on the Legal Lis podcast: foxrad.io/1v2H4St ]]>
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Legal Lis Podcast: Is Alton Nolen a Terrorist? http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-is-alton-nolen-a-terrorist/ http://www.liswiehlbooks.com/2014/10/legal-lis-podcast-is-alton-nolen-a-terrorist/#comments Fri, 03 Oct 2014 17:48:29 +0000 http://www.liswiehlbooks.com/?p=1337 LL

Colleen Hufford was beheaded by 30- year-old Alton Nolen during a gruesome attack at a Vaughan Foods plant in Oklahoma. Nolen was also able to repeatedly stab another victim, Traci Johnson, before he was shot by the company's CEO, Mark Vaughan, who is also a reserve deputy sheriff. Nolen had been suspended from the company just before he went into Vaughan’s administrative office and attacked the women. Cleveland County prosecutor Greg Mashburn said on Tuesday, 09/30/14, that Nolen will be charged with first-degree murder as well as assault charges. The good news is that first-degree murder in Oklahoma can result in the death penalty. And it’s not unlikely that this would be Nolen’s fate. But some aren’t satisfied, saying that Nolen is a terrorist and should be charged as such. Before I voiced an opinion one way or the other, I wanted to do a little digging of my own. In essence, I wanted a list of all of the things that point to charging Nolen as a terrorist. Here’s what I’ve come up with:
  • Nolen recently converted to Islam and reportedly tried to convert co-workers to Islam.
  • Nolen used Arabic terms during his attack.
  • On his Facebook account, Nolen posted photos of Osama bin Laden, other jihadis, and the Twin Towers burning.
  • His Facebook account also included a very graphic photo of a beheaded victim.
  • He reportedly wrote the following on his Facebook: "She (the Statue of Liberty) is going into flames. She and anybody who's with her."
  • He posted photos of a woman being flogged with the words "Islam will dominate the world. Freedom can go to hell."
  • There are some reports that Suhaib Webb, an imam with known ties to former Al Qaeda mastermind Anwar al Awlaki, appears to have influenced the life of Alton Nolen. Webb, who was once the leader of the Islamic Society of Greater Oklahoma City, now serves as an imam at a mosque in Boston once attended by accused Boston Marathon bombers Dzhokhar and Tamerlan Tsarnaev.
  • Possibly copying ISIS: ISIS has posted for all to see the beheadings of James Foley, Steven Sotloff, and David Haines. This gives terrorists inspiration to copy. It could be that Nolen was acting as a so-called “lone wolf”. Just last week, an ISIS leader, Abu Muhammad al-Adnani, released a recorded speech directed toward "lone wolf" operations and encouraging terrorists to act. "Do not ask for anyone's advice and do not seek anyone's verdict, kill the infidel whether he is civilian or military."
No one factor on its own necessarily spells terrorist, but when combined, you definitely have to wonder. Do you have anything else you think should be added to the list? And do you think Alton Nolen is a terrorist? You can hear my thoughts on how Nolen should be charged on the Legal Lis podcast: foxrad.io/1pGfa6P ]]>
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Legal Lis Podcast: Ray Rice and Double Jeopardy http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-ray-rice-and-double-jeopardy/ http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-ray-rice-and-double-jeopardy/#comments Fri, 26 Sep 2014 20:07:15 +0000 http://www.liswiehlbooks.com/?p=1329 RR Unless you’ve successfully avoided all types of news and gossip lately, you’ve heard about Ray Rice’s recent scandal. What’s more, you’ve probably seen the tragic video in which he punched his then-fiancé, knocking her out, and then dragged her out of an elevator. For Ray Rice – and the NFL – the release of the video footage changed everything. Seeing what he did somehow makes it more despicable, if that’s possible. Seeing it as a video outrages us and incites us to question the NFL. And seeing that video gives us something palpable to arm ourselves with when deciding how we feel about the situation. No doubt about it, Ray Rice should not be given the opportunity to play professional football again. But, legally, it’s not so clear. The first thing to understand is that NFL’s collective bargaining agreement does not have a so-called “double jeopardy” provision. What is does have is Article 46, Section 4, which states that a player cannot be disciplined twice “for the same act or conduct.” The importance of this provision really hinges on when the powers that be at the NFL had and knew about the video showing the assault. There are allegations that the surveillance video of Rice’s assault was sent to league security chief Jeffry Miller in April. There is also talk that there is a voicemail from league offices confirming receipt of said video on April 9. If this is true, then when Ray Rice was punished with a two-game suspension, that should have been the end of it. If NFL officials had already seen the video, then they knew all there was to know and had somehow decided that a two-game suspension was enough of a punishment. Under this version, you’d have to assume that once the video was leaked to the masses, the NFL reacted with an indefinite suspension to nullify the outrage. The problem here is that the two-game suspension was punishment number one. And because of Article 46, Section 4, Rice can’t be punished again for the same act or conduct. On the other hand, you have Miller saying, "I unequivocally deny that I received at any time a copy of the video and I had not watched it until it was made public on September 8.” And NFL Commissioner Roger Goodell has publicly said several times that no one in his office viewed the video until TMZ posted it on its website in September. If this is the truth, then the video brought new information to the table, and so it might be appropriate to revise the two-game suspension. Eventually, the truth will come out. We will know one way or another exactly when Goodell and company knew of the video. And this truth will likely have a huge impact on Rice’s future as a player. Which version of the story do you believe? Do you think people within the NFL saw the video before giving Rice his first punishment? Hear my thoughts in the latest Legal Lis podcast: foxrad.io/1pjtSAK ]]> http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-ray-rice-and-double-jeopardy/feed/ 1 Legal Lis Podcast: The Adrian Peterson Child Injury Case http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-the-adrian-peterson-child-injury-case/ http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-the-adrian-peterson-child-injury-case/#comments Thu, 18 Sep 2014 16:18:23 +0000 http://www.liswiehlbooks.com/?p=1319 Untitled1 In this week’s Legal Lis, one of the subjects I discussed was the recent issue involving Adrian Peterson and his method of disciplining his child. If you haven’t heard much on this story, the basic facts are as follows: Peterson, who plays for the Minnesota Vikings, has been indicted by a Texas grand jury for beating his four-year-old son with a “switch.” The incident occurred in May in Spring, Texas following an argument between Peterson’s son and another child over a video game. Peterson chalked it up to his style of parenting, simply a way to discipline his son, but the extensive injuries piqued the interest of law enforcement. According to reports and photos from the Houston Police Department, Peterson’s son received visible cuts and bruises to his back, buttocks, legs, hands and even scrotum. Because of the severity of the injuries, Peterson now faces charges of injury to a child. This case inevitably makes you wonder: To what extent should parents be permitted to discipline their children as they see fit? The emotional response is oftentimes that a parent should have a lot of freedom in doing just that, parenting. Some parents spank, some use timeouts, others take things away – each parent has a different way of enforcing rules and setting boundaries. And parents should have that right. You could argue all day that one way is better than the next, but in the end, a parent is going to raise their children (hopefully) in the way they think will result in kids who respect others and who recognize boundaries. I know good parents who spank and I know good parents who would never discipline physically – and neither method is necessarily better or worse than the other. But a problem arises when the fine line between spanking to discipline and actually beating a child is blurred. And when that line is blurred or crossed, that is precisely where the legal side of things comes in. For the most part, states tend to agree that a parent should be able to discipline a child - to a certain extent - as he or she sees fit. For example, here in New York, a “parent, guardian or other person entrusted with the care and supervision of a person under the age of twenty-one……may use physical force, but not deadly physical force, upon such person when and to the extent that he reasonably believes it necessary to maintain discipline or to promote the welfare of such person.”  And a New York court recently held that when a father spanked his child with an open hand in order to discipline the child, this was a “reasonable use of force.” A four-judge panel ruled in the unanimous decision that, “the father’s open-handed spanking of the child as a form of discipline after he heard the child curse at an adult was a reasonable use of force and, under the circumstances presented here, did not constitute excessive corporal punishment.” In California, “’serious physical harm’ does not include reasonable and age-appropriate spanking to the buttocks where there is no evidence of serious physical injury.”  And a court has recently found that a California mother who used a wooden spoon to spank her 12-year-old was not a child abuser. Laws and cases all across the U.S. support the notion that a parent can discipline their children when it’s reasonable. So what’s the big deal with Adrian Peterson? Well, primarily, it’s that his method of discipline was pretty extreme. Some would argue that the punishment went well beyond just plain maintaining discipline. The law in Texas is pretty lenient when it comes to parental discipline, stating that “the use of force, but not deadly force, against a child younger than 18 years is justified: (1) if the actor is the child's parent or stepparent or is acting in loco parentis to the child; and (2) when and to the degree the actor reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare.​” But that doesn’t mean a parent can beat a child in Texas without breaking the law. What this law clearly does is leave a lot of room for parents to decide how to discipline. What it does not do is allow a parent to beat a child and say it’s in the name of discipline after the fact. The fact that a second grand jury has indicted Peterson on a child-injury charge indicates that at least some believe he went beyond what the law allows. But Peterson maintains that his conduct was reasonable. What do you think? You can hear more of my thoughts on this issue on the Legal Lis podcast: http://foxrad.io/1pjtSAK ]]> http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-the-adrian-peterson-child-injury-case/feed/ 2 Legal Lis Podcast: Celebrity Nude Photo Hack and California’s New “Yes-Means-Yes” Bill http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-celebrity-nude-photo-hack-and-californias-new-yes-means-yes-bill/ http://www.liswiehlbooks.com/2014/09/legal-lis-podcast-celebrity-nude-photo-hack-and-californias-new-yes-means-yes-bill/#comments Thu, 04 Sep 2014 18:22:41 +0000 http://www.liswiehlbooks.com/?p=1303 LL

In this week’s Legal Lis, I discussed many of the legal aspects related to the recently leaked nude photos of Jennifer Lawrence and other celebrities. I also talked about California’s new “Yes-Means-Yes” bill, which is related to sexual assault on college campuses. Below, I’ve included some of the legal issues that arise from these two topics as well as my thoughts. If you want to hear the full discussion, you can now listen to the Legal Lis podcast here: http://foxrad.io/1oDQawL Celebrity Nude Photo Hack: It’s hard to feel safe on the Internet. With all the hacking going on, it’s almost impossible for a person to expect that private information will, in fact, remain private. Identity theft, stolen credit card info, leaked photos, hacked emails – you don’t have to look too far to find a story that involves at least one of these issues. Enter the latest story in which several celebrities had private photos stolen and leaked to the masses. Some argue that these celebrities shouldn’t be surprised. If you have nude photos stored somewhere on the Internet, you’re exposing yourself to the possibility that these photos will end up in the wrong hands. Others think that when a person sends an intimate photo to a significant other or spouse or friend – in some way that’s intended to remain private – you should be able to expect that those photos will remain private. No matter which way you lean on this issue, there are laws that apply. One issue that has to be discussed related to this leak is what kind of liability there is for Twitter, Facebook and other sites that have or had links to the photos. Legally, the truth is that there is not much liability. Section 230 of the Communications Decency Act is a federal law that creates a lot of protection for providers of an “interactive computer service.” In fact, the law states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Case law testing the immunity of Internet service providers under Section 230 almost always goes the way of no liability. For example, in one case, the Fourth Circuit Court of Appeals found that “lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions — such as deciding whether to publish, withdraw, postpone or alter content — are barred.” The decision goes on to point out that “Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum.” This is just one of the issues that arise from the recent photo hack. You can hear more – including discussion on revenge porn and punishment for the people who actually do the hacking – on the Legal Lis podcast. What do you think: Should we expect privacy on the Internet? Should Twitter and the like be held liable? California’s “Yes-Means-Yes” Bill  The so-called “yes-means-yes” bill, which was passed unanimously by the California State Senate, would require universities in CA to adopt a standard of unambiguous consent from all parties engaging in sexual activity. The bill defines affirmative consent as an “affirmative, conscious, and voluntary agreement to engage in sexual activity” and goes on to state that it “is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity.” That someone doesn’t protest or resist does not equal consent. Neither does silence. The goal of the bill is to prevent sexual assault on campus. And with the White House reporting that 1 in 5 female college students is sexually assaulted while in college, this is a laudable and necessary goal. But some aren’t convinced the bill will achieve its goals, arguing that people who don’t get an explicit “yes” before sex will be deemed rapists even though there was, say, nonverbal affirmation. What are your thoughts: Do you think this bill is a good idea? Can it achieve its goals?   I hope you enjoy the new podcast! Every Thursday from now on, a Legal Lis podcast will be made available so you can listen to the topics I'm discussing.              ]]>
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Q&A on Police Brutality, Part II http://www.liswiehlbooks.com/2014/08/qa-on-police-brutality-part-ii/ http://www.liswiehlbooks.com/2014/08/qa-on-police-brutality-part-ii/#comments Thu, 28 Aug 2014 19:02:07 +0000 http://www.liswiehlbooks.com/?p=1292 Police tape at scene of shooting of WPCs Nicola Hughes and Fiona Bone Michael Brown was an 18-year-old who was shot and killed by a police officer in Ferguson, Missouri on August 9. There are numerous facts that are still unknown about what happened that night between Brown and officer Darren Wilson, but many are seeking justice for Michael Brown. Eric Garner, 43, died on July 17 during an incident in which he was placed in a chokehold at the hands of an officer with the New York City Police Department (NYPD). Unlike the Brown case, though, the facts surrounding Garner’s death are pretty clear, largely because witnesses recorded the whole thing.  No matter how many differences there are in these two cases, they both highlight an issue that has long been of concern – and that is the issue of police brutality. I’ve been looking for organizations that can shed some light on the subject and was fortunate enough to speak with Tim Lynch, director of Cato's Project on Criminal Justice and contributor to Cato Institute’s National Police Misconduct Reporting Project (NPMRP). According to the NPMRP’s website, “The purpose of this project is to gather reports of credible allegations of police misconduct so policymakers (and others) can make informed assessments of the nature and circumstances of police misconduct, and consider proposals that can minimize wrongdoing.” In order to achieve that purpose, the NPMRP uses media reports from all available media sources in the U.S. that deal with both confirmed and alleged instances of police misconduct. “All information gathered is manually validated to determine the credibility of the report, whether the report is a duplicate of an existing report, and how each report should be categorized before recording each report to a police misconduct database for use in our statistical analysis.” The issue of police brutality is one that is widespread, and opinions are divided on what a solution might be. Here, I’ve asked Lynch several questions about the NPMRP, police misconduct, and what we might be able to expect moving forward. 1. How did you become involved in the issue of police misconduct, and why do you think it is an important issue? I have been focusing on criminal justice issues for many years and, as a part of that work, I look into instances of police and prosecutorial misconduct.  Keeping tabs on misconduct is important because the police wield enormous powers--the power to search, detain, seize property, seize children, and use physical force against people. 2. Please explain what the Cato Institute's National Police Misconduct Reporting Project aims to do. About two years ago, Cato launched our Reporting Project.  The Project has several aims, including aggregating misconduct stories from around the country; trying (to the extent we can) to discern trend lines; and identifying policies than can minimize misconduct. 3. Police misconduct surely includes excessive use of force by police officers, what else would be considered police misconduct?   There is a wide variety, but I can give you some examples.  First, we do track misconduct when police agents act in their "personal capacity."  That could be drunk driving, domestic violence, theft, or shootings.  If police are willing to violate laws when they are off-duty, we think it tells us something about how they will regard rules that pertain to their police work.  Second, there are instances where the police engage in misconduct under the "color of their police authority."  That might be preparing false reports, perjury in court, false arrests, and illegal searches.  Third, we also draw attention to "official policies" that we think are problematic.  This third category can, in some ways, be the worst, because the department is openly defending a questionable practice or policy.  These would include high speed vehicle chases through residential neighborhoods, stop & frisk tactics, civil asset forfeiture powers, and no-knock drug raids on people's homes. 4. What do you think is the most misunderstood or overlooked aspect related to police misconduct? Everyone pretty much knows that police misconduct exists, but the average person underestimates the extent of it.  People are also misinformed about what can be done about it.  For example, many just assume that if the police get out of line, a big lawsuit will be brought against the department.    Most victims will not seek out attorneys.  And for the other cases, attorneys will decline to pursue them because the injuries or physical damages are not deemed serious enough.  The cases that do proceed are not easy to win because it may boil down to the victim's word against the police officer.  And when someone does win, the government can appeal, thereby dragging the case out for years and years. 5. What do you feel like the root of the police misconduct problem is? Power tends to corrupt.   Next, there is the problem of an agency investigating itself.  Hard to believe, but police commanders are more concerned about the bad publicity that may arise from an instance of misconduct than the misconduct itself.   Sometimes the commanders want to fire a bad cop but police unions make that almost impossible.  And when illegal actions are not punished, you get more of it. 6. There has been much discussion and controversy surrounding the shooting of Michael Brown in Ferguson. So many different issues and factors come into play when forming an opinion or set of actions. How do you think officials and police officers in Ferguson should address the problem? The Governor and state attorney general acted too slowly.  The officer involved should have been identified earlier and a special prosecutor should have been appointed to ensure impartiality. 7. How have the policies impacting the way police officers address certain situations changed in recent years and do you think these changes have made the instance of police misconduct more or less prevalent? Police departments vary around the country.  For example, some operate in rural areas; some operate in urban areas.  One problem in some of the urban areas is that the police seem to measure their "performance" by stops and arrests.  These "pro-active" tactics can have harmful consequences.  Instead of responding to, say, a burglary, and helping to solve that crime for a victim, the police are under pressure to initiate contact with people with stop and frisk tactics.  When 8 out 10 young men are stopped and no contraband is found (i.e. no evidence of wrong-doing) resentment starts building and festering. 8. A police officer's response to a given situation is highly dependent on the facts of each case. Is there a way for policymakers and police officers to move forward and address the issue that does not involve handling each case separately? Yes--many policy changes are needed.  Here are a few: (1) disband paramilitary units, or at least keep them from routine policing calls.  Only for, say, hostage situations; (2) abolish civil asset forfeiture; only seize property after conviction for a crime; (3) end stop & frisk, pro-active policing; get away from quantity of arrests as a measure of performance; (3) scale back no-knock raids on homes; and (4) train police to respect the right of people to film them with smart phones.    ]]> http://www.liswiehlbooks.com/2014/08/qa-on-police-brutality-part-ii/feed/ 5