The Legal Seagull: Law | Litigation | Self-Help | Legal History

In November 2012, voters in Colorado and Washington passed ballot initiatives legalizing the recreational use of marijuana. In the aftermath of legalization by these states, pundits continue to discuss the wisdom of expanding legalization of marijuana, a substance that remains illegal under federal law as a Schedule I drug (together with heroin, LSD, ecstasy, methaqualone, and peyote). Has the legalization experiment in Colorado and Washington demonstrated that there is no longer a compelling basis to criminalize recreational marijuana use? Alternatively, has legalization negatively impacted the social and economic fabric of these states, such that further attempts at state legalization should be resisted? With marijuana legalization initiatives expected to pass in more states in 2014 and 2016, many questions remain. To answer these, I interview Keith Stroup, founder and legal counsel of the National Organization for the Reform of Marijuana Laws (NORML).

After founding NORML in 1970, Mr. Stroup is in his fifth decade of advocating for reform of state and federal marijuana laws. Mr. Stroup and I discuss the following issues in detail:

– The enduring arguments in favor of marijuana legalization, most notably the adverse social and economic impacts of subjecting otherwise law-abiding citizens to criminal penalties for recreational marijuana consumption.

– The conflict between state laws legalizing marijuana and federal prohibition. There is a positive conflict between these laws, which under the Supremacy Clause of the U.S. Constitution, renders federal law supreme. Despite this, the Obama Administration has elected not to enforce the federal ban (e.g. has not sought court injunctions or deployed federal agents to arrest and prosecute marijuana distributors and purchasers). In a series of legal memoranda, the U.S. Department of Justice has declined to enforce the federal ban in Washington and Colorado, except in certain circumstances.

– The future of marijuana legalization, which is expected to spread to other states by ballot initiatives. There is also increased support for easing federal restrictions on marijuana for medicinal purposes, and some pending bills have even attracted the support of a few conservative Republicans.

– Shifting societal views of marijuana most notably due to changing demographics.

The law of self-defense authorizes* a person, under certain circumstances, to use otherwise unlawful  force (even deadly force) to repel an imminent threat of bodily injury or death. Self-defense laws differ among federal and state jurisdictions. Generally, a person claiming self-defense must prove that he/she:

1. Was not the initial aggressor or provoked the victim; and 2. Faced an imminent (i.e. immediate) threat of serious bodily harm or death; and 3. Honestly believed that he/she faced an imminent (i.e. immediate) threat of serious bodily harm or death and that the use of force was necessary to repel that threat; and 4. Reasonably believed that he/she faced an imminent (i.e. immediate) threat of serious bodily harm or death and that the use of force was necessary to repel that threat; and 5. The use of force was proportional to the violence or threat of violence by the victim; and 6. The defendant attempted to retreat from the scene prior to using force, if it was possible to do so safely (applies only in cases of deadly force).

In this episode, we go over each of the above elements and explain what a defendant needs to do to prove a successful self-defense claim. We also discuss the related doctrines of "Stand Your Ground" laws, the Castle Exception, and Battered Wife Syndrome as it applies to self-defense cases.

Defendant Must Not Be Initial Aggressor

– In order to successfully claim self-defense, a defendant cannot be the initial aggressor, meaning he cannot provoke the victim and then claim self-defense. Mere words do not generally amount to "aggression" or "provocation"; however, affirmative unlawful conduct, such as threatening the victim with a weapon or with physical conduct, may amount to initial aggression.

– In United States v. Peterson (1973) 483 F.2d 1222, the defendant went outside of his house to find the victim and others stealing his windshield wipers. He confronted them verbally, and a short argument ensued. He then went into his home and returned with a pistol. At that point, the victim and companions had already returned to their car and were preparing to leave. The defendant aimed his pistol at the victim and instructed him not to leave. Further argument ensued, and the victim then retrieved a lug wrench from the vehicle and approached the defendant, who shot and killed him. The D.C. Circuit United States Court of Appeals held that the defendant, having escalated the situation by returning with a pistol and preventing the victim from leaving, was the initial aggressor and therefore not entitled to claim of self-defense. In support of its holding, the Court of Appeals noted that the victim and his companions had already returned to their vehicle and were preparing to leave, such that the defendant's subsequent conduct was unreasonable.

An Imminent Threat is an Immediate One

– Only an imminent (i.e. immediate) threat of serious bodily harm or violence entitles a defendant to protection under the self-defense doctrine. Mere possibility of a threat, or a future or conditional threat, does not qualify as imminent.

– Example 1: Defendant is confronted by angry victim at a bar, who is running towards him with a knife. This is an imminent threat probably entitling the defendant to engage in deadly force.

– Example 2: Defendant is confronted by angry victim at bar, who does not appear to have any weapons. The victim warns, "if I see you talking to my girlfriend again tonight, I'm going to kill you." This conditional threat would likely not qualify as imminent.

– Example 3: Defendant is confronted by disgruntled client who says "one of these days I might just kill you." This is a speculative future threat that would likely not qualify as imminent.

– In People v. Norman (1989) 324 N.C. 253, a woman was convicted of voluntary manslaughter for shooting her sleeping husband in the back of the head several times.  The undisputed facts established that the defendant had been subjected to severe physical and verbal violence over a 25-year marriage, up to and including the two days preceding his death. Earlier on the day of his death, the husband had threatened to cut his wife's throat if she complained to the police. Expert testimony was introduced at trial that she suffered from Battered Wife Syndrome and believed she was subjected to a life of misery and pain, and that death at his hands was "inevitable." The North Carolina Supreme Court reversed the holding of the appellate court, and ruled that the defendant was not entitled to a jury instruction for perfect self-defense, since there were no facts that would support a finding of a reasonable fear of imminent bodily harm of death. The Court clarified the distinction between "imminent" and "inevitable" and held that the latter does not entitle one to the protections of the self-defense doctrine.

Honest and Reasonable Belief of Imminent Threat and Necessity of Force

– The defendant's belief that force is necessary to repel an imminent threat of injury or death must be both honest and reasonable.

– An honest belief is a subjective inquiry- did the defendant actually have this belief at the time he used violence? On the other hand, reasonableness is an objective inquiry- assuming the defendant's belief was honest, was it reasonable for a person in his situation (jury may consider subjective factors) to believe that he was facing an imminent threat and that violence was necessary to combat that threat?

– People v. Goetz (1986) 68 N.Y.2d 96 demonstrates the difficulty that juries sometimes have in assessing reasonableness. The defendant was a passenger on a New York City subway train who was approached by four youths who requested (or demanded, according to him) that he give them five dollars. Believing that he was about to be mugged and "maimed," the defendant pulled out an unlicensed pistol and shot the four unarmed youths, even as two of them attempted to flee. He then approached one who was apparently sitting down, walked over to him, and said, "You don't look so bad. Here's another." The shot severed the victim's spinal cord, leading to life-long paralysis.

– The defendant's statements to police reveal he interpreted the youths' conduct (e.g. body language, demeanor, and facial expressions) to be menacing, and believed he was about to be mugged. He also claimed he had been mugged on several occasions in recent years. The chilling testimony revealed that although Goetz probably entertained an honest believe that he was in imminent danger of serious bodily harm, he did not reasonably need to use deadly force to repel that threat. In fact, during interrogation he told a detective in a recorded interview: "My intention was to murder them, to hurt them, to make them suffer as much as possible."

– Despite the ominous facts of this case, and the defendant's own statements of his intentions, he was acquitted of attempted murder. His only conviction was for possession of an unlicensed firearm. The consensus at that time, and even today, is that the jury disregarded the law and was willing to accept a certain degree of vigilantism, especially considering the climate of fear and crime in 1980s New York City.

– The Goetz case reveals the difficulties that juries have in assessing the element of reasonableness. Moreover, it did not go unnoticed that the defendant was Caucasian and the victims were African-Americans. The case ignited debate about the effects of race in claims for self-defense, both in terms of a defendant's assessment of danger and a jury's determination of reasonableness.

Proportional Force to that of Aggressor

– A defendant's use of force must be proportional to the threat perceived. Accordingly, the use of deadly force must be proportional to the threat posed by the victim.

Duty to Retreat

– At common law, a person, prior to using deadly force, has a duty to retreat from a situation, if it is possible to do so with complete safety.

– Example 1: Defendant sees victim running towards him with a knife approximately 30 feet away. The defendant pulls out a pistol and shoots the victim. Here, there is likely no duty to retreat. The victim's proximity to the defendant would render any attempt to flee dangerous for the defendant, and a retreat could not be accomplished with complete safety.

– Example 2: Defendant sees victim running towards him from about 1000 feet away, yielding a knife. The defendant, an able-bodied man, is standing right next to his car, and has plenty of time to get in his car and drive off. Under these circumstances, the defendant has a duty to retreat prior to using deadly force.

– Many states still retain the duty to retreat; however, some have enacted the following exceptions:

–  Castle Doctrine: a person has no duty to retreat from an aggressor in his own home (some states extend this to a business). This derives from centuries-old English common law, which gave birth to the idiom, "An Englishman's home is his castle." This exception is based on the notion that a home is a person's ultimate place of sanctuary, and that he should never have to flee it when faced with an imminent threat of serious injury or death.

– "Stand Your Ground" laws: these laws remove the duty to retreat from any place where the defendant may lawfully be present. We discuss these laws, which have garnered significant media attention and criticism from criminologists and public figures, especially since the recent Florida v. Zimmerman (2013) trial, which ended in an acquittal for Zimmerman. We go over some seldom-discussed aspects of this case, including the misconception that Florida's "Stand Your Ground" law had an impact on its outcome.

Like this podcast? Check out The Legal Seagull website for more videos, blog posts, and podcast episodes! Like us on Facebook, follow us on Twitter  and Instagram. 

* This it not legal advice. All episodes of The Legal Seagull Podcast are subject to The Legal Seagull's disclaimer, located at www.thelegalseagull.com/disclaimer

n this episode, we discuss trademarks: what they are; what they protect; what they cannot protect; the aspects of a protectable mark; grounds for cancellation; and, how courts determine whether a trademark has been infringed. The discussion includes trademark issues and disputes involving many infamous brands, such as Coca-Cola, Apple, Xerox, Q-Tips, Kleenex, Google, and more. We also discuss the ongoing controversy surrounding the recent decision by the Trademark Trial and Appeal Board to cancel the Washington Redskins' trademark from the federal trademark register.

We discuss the following in detail:

– Trademarks are governed by both common law and the Lanham Act, a federal statute codified at 15 U.S. Code section 1051 et seq. Section 1127 of the Lanham Act defines a trademark as "any word, name, symbol, or device, or any combination thereof—(1) used by a person, or (2) which a person has a bona fide intention to use in commerce and applies to register on the principal register… to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown."

– The advantages of registering a trademark, including the presumption of ownership; constructive notice to the public of a claim of ownership; incontestability after five years (subject to exceptions); the right to sue for additonal remedies, including treble damages; the right to sue in federal court; and more.

– The test for proving infringement is "likelihood of confusion," meaning the likelihood that consumers will mistake the products or goods as originating from the trademark owner. There is a split among federal circuits as to the proper test to determine a likelihood of confusion. The Ninth Circuit follows the test delineated in AMF, Inc v. Sleekcraft Boats (1979) 599 F.2d 341, which includes: (1) the strength of the mark; (2) proximity of the goods; (3) similarity of the marks; (4) evidence of actual confusion; (5) marketing channels used; (6) type of goods and the degree of care likely to be exercised by the purchaser;  (7) the defendant's intent in selecting the mark; and (8) the likelihood of expansion of the product lines. The Second Circuit uses a similar, slightly more complicated, 13-part test known as the Dupont factors, as outlined in the decision in In re E.I. du Pont de Nemours & Co., (1973) 476 F.2d 1357.

– The spectrum of marks and levels of protectability:

(1) Fanciful: words or phrases that have no meaning until adopted by the product, and are usually "made up." Examples are Kodak, Xerox, Exxon, and Google. Fanciful marks receive the highest level of protection and are easiest to register.

(2) Arbitrary: These are actual words that do not have any meaning or connection to the product. Examples of arbitrary marks are Apple (as applied to computers); Blackberry (phones); Lotus (software); and Penguin (publishing). Arbitrary marks also enjoy extensive protection and are generally not difficult to register.

(3) Suggestive: actual words that in some way identify a product's type, quality, or nature, but require some imagination to form a link in consumers' minds. Examples are Greyhound (buses/transportation); Playboy (adult magazines); Wet Ones (moist wipes); and Wite-Out (for correcting typographical errors).

(4) Descriptive: merely describe the goods or services, and do not require any mental leap or imagination on the part of the consumer. Merely descriptive marks can only be registered or protected if they acquire "secondary meaning" (i.e. consumers have come to recognize the trademark to apply to a particular product and have an appreciation for its actual source or origin). Examples of descriptive marks that have acquired a secondary meaning and therefore protection: Sharp (TVs); 99 Cents Store; and Kentucky Fried Chicken.

– (5) Generic: terms that actually describe the product or genus of goods, and are the common name for the good. These marks are never protectable and cannot be registered. Examples: basketball; ketchup; shampoo; carpenter; and mobile phone.

– The doctrine of "genericide," whereby a company that once maintained an active and valid trademark could loses its rights by virtue of its acceptance into common vernacular as a generic way of describing the product. Examples of trademarks doomed by genericide are escalator, lanolin,  aspirin, pilates, thermos, and cellophane. Many successful brands, including Q-Tip, Kleenex, Xerox, and Google, invest extraordinary efforts to prevent their marks from falling into generic use.

– Evidence establishing that a mark has become generic may include consumer surveys and whether the word has entered a dictionary (usually good evidence that a term has become common-place and accepted).

– Section 1052 of the Lanham Act delineates bars to trademark registration: (1) deceptive, immoral, or scandalous; (2) geographically descriptive; (3) surnames; (4) descriptive; (5) disparaging; and (6) functional.

– Goods and services that are deemed "functional" are generally not protected. "Functionality" refers to aspects of the good or service that involve useful inventions, features, or specifications, which would normally be within the purview of patent law. In Inwood Laboratories v. Ives Laboratories (1982) 456 U.S. 844, the U.S. Supreme Court defined functional features as "essential to the use or purpose of the article or if it affects the cost or quality of the article." The public policy rationale behind disallowing trademark protection for functional marks is that granting a trademark would essentially deprive competitors of the right to produce commercially viable and appealing goods and services. An example is black engines for boats, which are (apparently) aesthetically appealing and properly match the colors of many boats.

– "Trade dress" refers to the packaging, appearance, product configuration, shape, characteristics, design or traits of non-phrase marks. Examples include the distinctive packaging of Red Bull (four-pack of slim silver cans); Tiffany jewelry (small, distinctive light blue boxes); and a McDonalds store configuration (you've been to McDonalds, right?) Trade dress is generally protectable and registrable, unless it is deemed to be functional in nature.

– Washington Redskins trademark cancellation and upcoming appeal:

– Section 2(a) of the Lanham Act prohibits registration of marks that are "disparaging." In this case, the marks at issue were registered many years ago. In order to prevail on the claim that these marks are not protectable, the parties challenging the trademarks must prove that they were disparaging to a "substantial composite" of Native Americans at the time of registration, not necessarily at the present time.

– The current case is not the first time the Trademark Trial and Appeal Board cancelled the Redskins' trademarks. They were first cancelled in 1992, after which a flurry of appeals followed, ending with the D.C. Circuit U.S. Court of Appeals affirming the U.S. District Court's findings that the challengers' case was barred by the doctrine of laches (i.e. inexcusable delay in bringing the lawsuit in a manner that prejudices the rights of the other party). For a good explanation of the prior action, check out Divided TTAB panel cancels six Redskins trademarks on disparagement grounds.

– Will the challenge ultimately succeed? What constitutes a "substantial composite" of Native Americans? What evidence has been presented to support a finding of disparagement? Tune in to find out more!

Until next time, stay legal!

In the recent case Vergara v. California, a trial judge ruled that California's teacher tenure laws violated the California Constitution by depriving students of their rights to a quality education. In this episode, Josh Kuns, an employment litigation attorney, explains the ruling, including the evidence and statistics presented; the policy behind tenure laws; the arguments for and against teacher tenure protections; policy considerations; the likelihood of further state and federal challenges to teacher tenure; and, the potential implications for employment litigation and the education system.

If you would like to learn more about the Vergara decision, check out Josh's article, Public School Students Sue California; Court Rules Fundamental Right to "Quality of Education." 

June 2014 was a fascinating month for the law, with several significant rulings by the U.S. Supreme Court. The Court unanimously held that warrantless cell phone searches by police are unconstitutional (with few exceptions) and that a Massachusetts law requiring a 35-foot buffer zone outside of abortion clinics violates the First Amendment. In another groundbreaking decision in Hobby Lobby, the Court ruled that as applied to closely-held for-profit corporations, the Affordable Care Act's provision mandating that employers provide contraceptive care against the employers' convictions violates the Religious Freedom Restoration Act of 1993. Not all Supreme Court decisions affect the Average Joe, but each of these holdings has important implications for the ordinary citizen. This episode discusses these decisions in detail, as well as other interesting cases and legal issues from June 2014. The episode begins with a discussion of some recent cases from around the country:

– The Missouri Supreme Court held that a flying hotdog, which was thrown by an MLB team's mascot and hit a spectator in the eye, is not an assumed risk of watching a sports event.

– A new phone app launched in San Francisco allows users to bid on public parking spots in a "peer to peer auction." This has run afoul of San Francisco's laws and drawn the ire of its city government.

– A woman is suing the New York City MTA after being spooked by an advertisement for the show Dexter, which allegedly caused her to fall and sustain injuries.

– The U.S. Patent and Trademark Office canceled the Washington Redskins' trademark on grounds that it is disparaging to Native Americans.

– New York's highest court struck down former Mayor Bloomberg's ban on large soda drinks in a death blow to that regulation.

– The Ninth Circuit Court of Appeals ruled that potential jurors cannot be excluded on grounds of sexual orientation.

– A California trial judge struck down California's teacher tenure laws as unconstitutional.

– The NFL has reached a settlement to compensate former players for neurological injuries sustained as a result of repeated concussions. This settlement has no cap on damages and provides up to $5 million for each affected player over a 65-year eligibility period.

  The episode proceeds with a discussion of three recent U.S. Supreme Court cases: Riley v. California (warrantless cell phone searches); Burwell v. Hobby Lobby (ACA contraceptives mandate); and McCullen v. Coakley (abortion buffer zone):

Riley v. California

This case involves two defendants convicted of crimes based on information obtained from their cell phones, which were searched incidental to their arrests. Petitioner Riley was tried and convicted in California, and petitioner Wurie was convicted in a federal district court. Accordingly, the respondents were the State of California and the federal government, both of which argued that these searches were necessary and not unconstitutional.

The Court rejected the respondents' arguments and held that warrantless searches are unconstitutional, unless exceptional circumstances exist, such as an emergency (e.g. terrorism, ticking bomb, etc.).

– The Fourth Amendment bans unreasonable searches and seizures.

– In U.S. v. Robinson (1962), the Supreme Court held that upon lawful arrest, the police may search a suspect's person and effects even if there are no concerns for destruction of evidence or danger to police officers. In that case, defendant was arrested and his cigarette pack was searched, revealing drugs.

– The Supreme Court held in Chimel v. U.S. (1969) that when lawfully arresting a suspect, the police may search his immediate vicinity if there is a concern that evidence will be destroyed or of danger to the police officers.

– The respondents urged the Supreme Court to extend Robinson to the instant case, arguing that a cell phone was a personal effect similar to any other.

– The Court rejected the respondents' arguments, holding that in light of their tremendous storage capacity and the private nature of their contents, cell phones implicate greater privacy concerns than other effects. Moreover, the concerns present in Chimel and Robinson do not apply to the digital contents of cell phones, which cannot be used as a weapon against the police. Moreover, the Court found there is little concern for destruction of evidence.

Burwell v. Hobby Lobby

The Supreme Court held that as applied to closely-held corporations, Department of Health & Human Services ("HHS") regulations imposing contraceptives coverage on employers violates the Religious Freedom Restoration Act of 1993 ("RFRA"). At issue were four out of twenty contraceptives mandated by the HHS, including two intrauterine devices ("IUDs") and two "morning after pills," which the petitioners argued constituted abortion, a practice that violates their religious beliefs.

RFRA forbids the ""[g]overnment [from] substantially burden[ing] a person's exercise of religion even if the burden results from a rule of general applicability" unless the government "demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest."

The Court held:

– Closely-held for-profit corporations are protected under the RFRA. The Court rejected the respondents' arguments that it was intended by Congress to apply solely to people and non-profit corporations.

– The HHS mandate substantially burdens the petitioners' religious beliefs by requiring them to either be complicit in a practice that violates their religious convictions or pay massive fines.

– The Court agreed with the government that it has a compelling government interest in providing free or affordable contraceptives; however, the HHS mandate is not the least restrictive way of furthering that interest. The government has less intrusive options, such as providing contraceptive care itself, or extending an accommodation to closely-held corporations similar to that extended to religious organizations.

The episode goes on to discuss the potential implications of the decision, which the dissenting justices predict will open a floodgate of litigation and allow employers to object to a wide array of laws that they believe run contrary to their religious beliefs.

McCullen v. Coakley

In 2007, Massachusetts amended its Reproductive Health Care Facilities Act to make it illegal for any person to knowingly stand on a "public way or sidewalk" within 35 feet of an entrance or driveway to any "reproductive health care facility," defined as "a place, other than within or upon the grounds of a hospital, where abortions are offered or performed."

The petitioners claimed that the buffer zone violated their First Amendment rights by making it difficult or impossible for them to engage in "sidewalk counseling," which involves engaging and providing women entering abortion facilities with information about alternatives to abortion.

The Supreme Court held unanimously that the statute violated the petitioners' First Amendment rights:

– The First Amendment affords special protection to sidewalks and public walkways. However, governments may still restrict the time, place, and manner of speech, as long as the restrictions are content neutral (i.e. not based on the type or nature of the speech), and provided that the restriction is not more intrusive than necessary.

– Massachusetts does have a legitimate interest in maintaining the sidewalks to protect the public and to allow access to the sidewalk and the abortion facilities.

– However, Massachusetts failed to prove that it did not have alternatives that were less restrictive of the petitioners' First Amendment rights. The Court pointed out that Massachusetts already had laws in effect to protect people from harassment and violence, and that it could enact further laws. Moreover, Massachusetts failed to produce evidence that law enforcement was ill-equipped to deal with potential violence, intimidation, or intentional obstruction of the entrance to abortion clinics.

KNOW ALL MEN BY THESE PRESENTS, that the undersigned, Neer Lerner, a natural person of sound mind and body, proprietor of The Legal Seagull Podcast, hereby bargains, assigns, and transfers the herein-described audio content to his listeners*! This over-the-top, convoluted, and archaic introduction is written in a difficult language called "legalese." Legalese is not officially recognized by the United Nations or even by linguists or anthropologists. It refers to the unique tongue of lawyers. It is hard to describe the main attributes of legalese, but it sounds like a hybrid of old Shakespearean English, with words borrowed from Latin and French, and even a hint of robot-speak.

The main characteristics of legalese are, including but not limited to (you see, even I am not immune to the legalese epidemic!):

1. Overly verbose and lengthy sentences;

2. Words that are intended to eliminate ambiguity, but paradoxically only add to the confusion;

3. Improper grammar and sentence structure; and

4. Use of the passive voice

In this episode, I interview Gary Kinder, an expert in legal writing and in writing clearly, concisely, and to the point. For many years, Gary has trained lawyers at this nation's most prestigious law firms, large corporations, and even courts, to eliminate unnecessary words and phrases to write more persuasively and clearly. A few years ago, he and his team of engineers created Wordrake, an incredible piece of software that, in a matter of seconds, scans your text and helps you identify inefficiencies, with the option of "raking" any unnecessary clutter to convey more meaning to your readers.

Gary and I discuss the following:

1. The origins of legalese and why it continues to pervade legal writing;

2. How legalese negatively impacts both lawyers and the public;

3. The birth of Wordrake and how it works; and

4. Practical advice as to common forms of legalese in writing, and how to detect and avoid them.

Further resources

Wordrake: You can try the software for free for 30 days. If you wish to purchase it, you may use the coupon code "Seagull" for a 5% discount. In the interest of full disclosure, please note that I earn a commission on purchases made with the coupon code. This does not in any way affect my recommendation- I have used Wordrake and found it to be outstanding, but I want you to be fully informed of the fact of my commission arrangement.

Write to the Point: sign up for Gary's newsletter, which contains lots of free valuable tips about effective writing.

The Nature of Legal Writing by Peter Tiersma: A great article postulating some interesting theories of the rise of legalese and its continuing use.

Plain English for Lawyers by Richard Wydick: An essential resource for every lawyer.

In light of the foregoing arguments, and the above-mentioned recommendations as stated in full herein, may we stipulate to confer again in the next episode. Stay legal!

* For purposes of illustration only. I still reserve all rights and avail myself of all applicable intellectual property protections. Just sayin'.

We've all heard about the Americans with Disabilities Act ("ADA"), but only a select few understand what it is, how it works, and what classes of people it protects. For many of us, our only familiarity with the ADA is that moment we find think we found an amazing parking spot and start to pull in, only to soon notice the universally-recognized blue and white emblem designating a spot for the disabled. In this episode, I will explain what rights the ADA is meant to protect, what qualifies as a "disability," and what obligations the ADA imposes on employers, government agencies, and public accommodations.

I will also discuss the unfortunate byproduct of this monumental civil rights statute—abuse by a number of unscrupulous attorneys and serial plaintiffs, who sometimes use unethical legal maneuvers to leverage "payoffs" from small businesses. To gain insight into this disturbing trend, I interview Marc Wasserman, an attorney who defends small businesses in lawsuits alleging non-compliance with the ADA. In this episode, we will be discussing the following:

1. The history of the ADA since its enactment in 1990, including its goals, protected classes, and definitions.

"Disability" refers to "a physical or mental impairment that substantially limits one or more major life activities of such individual . . . major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working . . . a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions." The ADA also protects individuals who have a record of an impairment, and those who are "regarded as having such an impairment."

2. The ADA's prohibits employment discrimination against qualified individuals with a disability. It further restricts the type of questioning an employer may ask an applicant about his or her disabilities.

The ADA defines a "qualified individual" as "an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires . . ." (Italics added for emphasis).

3. The ADA requires that both employers and "public accommodations" (i.e. almost all businesses and facilities open to the general public) provide reasonable accommodations  to individuals with disabilities, and remove barriers when doing so is readily achievable and does not cause undue hardship.

4. Public accommodations and government buildings must ensure access to all assistive walking devices, service animals, and equipment, unless doing so would be unfeasible or result in undue hardship. Further obligations include providing accessible parking spots and taking steps to communicate effectively with people who have communication-related disabilities (e.g. blindness, difficulty hearing or speaking, motor function deficit, etc.).

5. Interview with attorney Marc Wasserman regarding potential abuse of the ADA to extract settlements from small "mom and pop" businesses. As Wasserman indicates, there is significant evidence that some attorneys (and even plaintiffs) are acting in bad faith and in violation of discovery rules and litigation decorum.

Links for further reading:

National Association of the Deaf et al. v. Netflix, Inc.: The National Association of the Deaf sued Netflix, a streaming video provider, alleging that failure to provide closed captioning for the majority of its content violated the ADA. The U.S. District Court for the District of Massachusetts ruled that Netflix was in fact a "public accommodation" within the meaning of the ADA, despite the fact that it is not a building or structure.

EEOC v. Kaufman: An employer refused to permit an employee to use a magnifying glass to accommodate diabetic retinopathy, a condition that caused her significant blindness. The employer then terminated her employment. The court found that the employer discriminated against the employee on the basis of her disability.

EEOC v. Echostar Communications Corp: A blind applicant was denied employment based on her disability, even though the employer was advised that the applicant was trained in the use of sophisticated text-to-speech software that may have been available at little to no cost. The court found in favor of the plaintiff, and awarded significant punitive damages for willful violation of the ADA.

PGA Tour, Inc. v. Martin: A professional golfer with a severe degenerative circulatory condition sued the PGA Tour, arguing that its refusal to allow him to use a golf cart violated the ADA. The U.S. Supreme Court found in favor of Martin, reasoning that requiring the PGA to reasonable accommodate him would not fundamentally alter the nature of the tournament, and would not afford Martin an unfair advantage.

ADA Update: A Primer for Small Business: A great guide for small businesses, prepared by the Disability Section of the Civil Rights Division of the U.S. Department of Justice.

ADA.gov: a great resource maintained the U.S. Department of Justice. It contains texts of the laws/regulations, design standards, technical assistance materials, information regarding enforcement, and news of the most recent cases.

Even if you have never been placed under arrest, you are probably familiar with Miranda warnings. They usually sound something like this:

"You have the right to remain silent. Anything you say can and will be used against you in a court of law.  You have the right to have an attorney present during any questioning. If you cannot afford an attorney, one will be provided to you at the state's expense."

These warnings have become part of  popular culture and are regularly depicted in television shows and movies. But what do they mean? Why do suspects need to be warned of these rights? This episode answers these questions and explores the circumstances in which the police must administer Miranda warnings; which exceptions exist to this requirement; how a defendant may invoke Miranda rights; what happens once Miranda rights are invoked; and, the consequences if the police persist in interrogation despite a defendant's valid invocation of Miranda rights.

In this episode, we discuss:

(1) The problem of false confessions, whereby criminal defendants sometimes confess to crimes they did not commit.

(2) The origins of the right against self-incrimination in the Fifth Amendment of the U.S. Constitution.

(3) Interpretation of  the terms "compelled," "criminal case," and "witness against himself" within the meaning of the Fifth Amendment. Particular focus is placed on the term "witness against himself" to understand what circumstances entitle a defendant to invoke the Fifth Amendment to avoid self-incrimination.

(4) The U.S. Supreme Court has held that a confession obtained through physical or psychological coercion (or the threat of coercion) violates the Fifth Amendment.  Cases discussed:

Brown v. Mississippi (1936) 297 U.S. 278

Watts v. Indiana (1949) 338 U.S. 49

Payne v. Arkansas (1958) 356 U.S. 560 

 (5) Facts of the infamous decision in Miranda v. Arizona (1966) 384 U.S. 436, where the U.S. Supreme Court held that custodial interrogation by police is inherently coercive; therefore, the police must ensure certain procedural safeguards to protect a suspect's rights, which includes reading the suspect a set of warnings.

(6) U.S. Supreme Court cases interpreting the meaning of "custodial interrogation." Cases discussed:

Orozco v. Texas (1969) 394 U.S. 324

Oregon v. Mathiason (1977) 429 U.S. 492

Rhode Island v. McInnis (1980) 446 U.S. 291

Brewer v. Williams (1984) 467 U.S. 431

(7) Statements obtained by an undercover agent or jailhouse informant do not violate the right against self incrimination; however, depending on the timing, may violate the right to counsel. Cases discussed:

Illinois v. Perkins (1989) 496 U.S. 292

Arizona v. Fulminante (1991) 499 U.S. 279

Massiah v. U.S. (1964) 377 U.S. 201

(8) To properly invoke the right against self-incrimination, a defendant must clearly and unambiguously state his intention to do so, or stop speaking altogether. The same applies to invoking the right to have counsel present. Ambiguous statements that do not clearly invoke these rights may permit the police to continue interrogating the defendant.

Edwards v. Arizona (1981) 451 U.S. 477

Davis v. U.S. (1994) 512 U.S. 452

(9) Once a defendant has unambiguously invoked his right against self-incrimination, all interrogation must stop; however, depending on the circumstances, the police may re-initiate interrogation at a later point. The relevant inquiry for subsequent interrogation is is articulated in Missouri v. Seibert (below). In contrast, if the defendant invokes the right to counsel, all interrogation must stop, and can only be resumed if the defendant independently re-initiatesconversation. Cases discussed:

Oregon v. Bradshaw (1983) 462 U.S. 1039

Michigan v. Mosley (1975) 423 U.S. 96

Missouri v. Seibert (2004) 542 U.S. 600

(10) There are exceptions to the Miranda rule. The police do not need to warn a suspect of his Miranda rights during routine booking questioning, traffic stops, and when questioning is necessary to protect an imminent threat to the public (the public safety exception). Furthermore, a prosecutor may comment at trial on a defendant's pre-Miranda statements if the defendant subsequently offers inconsistent testimony.

Quarles v. New York (1984) 467 U.S. 649

The Boston Marathon bomber prosecution

(11) In 1968,  Congress attempted to "overrule" Miranda v. Arizona by passing 18 U.S.C. § 3501, which directed federal trial judges to admit statements given voluntarily, regardless of whether Miranda warnings were given. Over three decades later, in Dickerson v. U.S. (2000) 530 U.S. 428, the U.S. Supreme Court overruled 18 U.S.C. § 3501, holding that Miranda's protections arose out of the Fifth Amendment of the U.S. Constitution, and therefore could not be abolished or limited by congressional legislation.

Hey everyone, welcome to The Legal Seagull Podcast!

In this introductory episode let's you know about the format and subject matter of the Legal Seagull Podcast. I also introduce myself and give a brief background. 

The Legal Seagull Podcast is designed for both lawyers and non-lawyers- so you don't need any particular legal knowledge to find it relevant, interesting, and (hopefully) entertaining! We will cover a wide array of litigation issues, including: juries, lawsuits, the ins and outs of a civil lawsuit, individual and corporate liability, intellectual property, tort, and property law.

We will also delve into criminal law, including individuals' constitutional rights. Among these rights, we will discuss what limits the Constitution imposes on law enforcement: what are they allowed to search, what evidence can be used against an individual in a criminal case, and what powers and limits apply to the state when it comes to arresting, charging, prosecuting, and ultimately sentencing criminal defendants. We will also examine social policy questions, to see which of our laws are working and which aren't. This will involve examination of some of our most hotly contested issues, like the War on Drugs, the War on Terrorism "tort reform" legislation, sentencing and the death penalty, separation of church and state, and digital privacy issues that are rapidly expanding as technology develops and becomes more readily available to the general public. Some of our episodes will include guest interviews and co-hosts, who will bring their own expertise and knowledge to the discussion.

In short, we're going to have a blast discussing litigation, the law, and most importantly, how it all affects you!

Until next time... stay legal.