U.S. Constitutional

Background on the U.S. Constitution

The “founding fathers” memorialized the original 13 colonies’ independence from England in the form of a singular document:  the Constitution.  Given that it was based to a large extent upon English legal principles, the American Constitution marked a radical departure because the English did not then, and still do not now, have a written constitution.†  Rather, the English “constitution” is a somewhat fluid body of principles, which obviously offers greater malleability for modern times, compared to the staid U.S. Constitution, which may only be changed by enacting “Amendments” approved by three-fourths of the states.

Articles of the U.S. Constitution 

Article I          ▫ Legislative powers (Congress)

Article II         ▫ Executive powers (President)

Article III       ▫ Judicial powers (Supreme Court)

Article IV        ▫ Full Faith and Credit

Article V         ▫ Power to Amend

Article VI        ▫ Supremacy Clause

Article VII      ▫ Ratification

Significant Clauses in the Constitution

Some of the major clauses in the Constitution include:  the “Supremacy Clause,” (VI)(2), making federal law supreme over states’ laws; “Full Faith and Credit,” (IV)(1), requiring each state to respect other states’ laws and court decisions; the “Commerce Clause,” (IV)(8)(3), giving the federal government control of commerce with foreign countries, and also between and among states.

Constitutional Amendments

Twenty-seven Amendments attach to the Constitution, the first ten of which, known as the “Bill of Rights,” were adopted in 1791.  The most recent Amendment—proposed in 1789 and finally ratified in 1992—relates to Congressional pay raises.

Notable Amendments

1st  Amendment   ▫ Congress may not establish or prohibit a religion, nor abridge free speech, the press, or the right to peaceful assembly;

2nd  Amendment ▫ “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”;

4th Amendment    ▫ Forbidding unlawful search and seizure;

5th  Amendment   ▫ Persons may not “be deprived of life, liberty, or property, without due process of law”;

6th  Amendment   ▫ Speedy trial; right to confront witnesses and to have defense counsel;

10th  Amendment ▫ Powers not specifically given to federal government reserved to states;

13th  Amendment ▫ Abolishing slavery;

14th Amendment  ▫ States may not deprive persons of “life, liberty, or property,” nor deny any person equal protection of the law (as the state would give to any other person or its own citizens;

15th  Amendment ▫  Voting rights for non-whites;

16th  Amendment ▫ Income taxes;

19th  Amendment ▫ Outlawing alcohol;

20th  Amendment ▫ Women’s right to vote;

21st Amendment  ▫ Repealing 18th; 

22nd Amendment  ▫ Two-term-limit for Presidents;

24th Amendment  ▫ Abolishing “Jim Crow” poll taxes); and

26th  Amendment ▫ 18 years old to vote.

 

† Interestingly, though, pre-1776 English statutes and court opinions largely continued as controlling law in the United States (the particularities varied state-by-state).

Posted in Congress, Constitutional Law, Criminal Law & Procedure, Government, Search and Seizure | Comments Off on U.S. Constitutional

Mediation in Family Law Cases

Mediation in family law cases is becoming more and more popular.  A majority of family court judges mandate that parents mediate their case before even scheduling a trial.  The reason for mediation’s popularity is that it allows parties to resolve issues in a less adversarial setting than a courtroom, and because it is so cost effective. 

What is Mediation in Family Law Cases?

Mediation in family law cases (divorce, separation, paternity, child custody) typically involves the parties—without attorneys—meeting with an independent mediator, either court-appointed or retained by the parties.  Family-law mediators are typically other family law attorneys or retired judges, all of whom have received specialized training in mediating domestic matters.  The ultimate mediation goal is for the parties to walk out with an agreement on all issues.  But of course that is not always the case.  Even if agreement isn’t reached on all issues, the process still can be extremely effective in narrowing down and identifying the parties’ actual points of contention.

How to Prepare for Mediation in Family Law Cases

Adequately preparing for mediation is extremely important.  Like many aspects of litigation, a solid preparation can pay dividends down the road.  The client and counsel should pinpoint the client’s main goals, but also identify aspects of the case where the client is willing to agree with the other party’s position.  The client’s understanding that no progress is made through a “my way or the highway” negotiating stance is key to making mediation actually bear fruit.  But it is also critical for clients to understand that his or her position should not be entirely compromised for the sake of leaving mediation with an agreement.  Not all mediations will completely resolve cases, though prepared parties will greatly improve the chance of a global resolution on all issues. 

Mediation Styles

All family law mediators have their own approach to mediation.  Some will have each party in different rooms and bounce back-and-forth between the two rooms.  Other mediators will have each party in the same room together as issues are discussed and negotiations occur.  And yet some mediators will engage in a combination of the previous two approaches.  The combination approach may take the form of meeting with each party individually to get a sense of that party’s goals, and then bringing the parties together for an open discussion about were the common ground lies.  On occasion, a mediator will ask for the parties’ attorneys to prepare mediation statements.  Those mediation statements allow the attorneys to set forth their client’s position, while also advocating why that position is the preferred outcome to the case.      

Advantages of Mediation in Family Law Cases

No discussion of mediation in family law cases is complete without noting its distinct advantages.  First, it allows parties to come to an agreement on their own terms, which is always more preferable than a judge or two attorneys hammering out a situation.  Second, and as mentioned above, mediation is extremely cost effective.  Parties can pay for a couple hours with a mediator to resolve the case instead of paying for many hours of their attorneys’ time to engage in back-and-forth negotiations.  The third, and often times most overlooked aspect of mediation, is that it helps maintain a civil co-parenting relationship.  There is no such thing as cheap litigation.  And in protracted litigation, things are said and subjects are breached that can severely damage the co-parenting relationship. 

Separating or divorcing parties, or those beginning a paternity case, seem to disregard the fact that they will have to co-parent together for many years to come.  Reaching an agreement through mediation and avoiding costly and potentially relationship destroying litigation is a great way to resolve a family law case.  Keep in mind a mediation agreement is not truly an agreement until the Court reviews it and accepts anything pertaining to the children as being in their best interests.  But if two parents have come together to reach an agreement on what they believe is in their children’s best interest, most Courts will not disturb that agreement.     

Posted in Child Custody, Divorce, Family Law, Litigation, Mediation, Parenting Advice, Parenting Time (Visitation), Paternity | Tagged , , , , | Comments Off on Mediation in Family Law Cases

Negligent Hiring and Related Claims

If an employee causes damages while on the job, and those damages were reasonably foreseeable or preventable, his or her employer may be guilty of negligent hiring, negligent retention, negligent supervision, or negligent training.

Negligent Hiring

If you were damaged, whether physically or financially, by an employee of a company, you may be able to bring a claim against the employer.  Two important aspects of these cases are:  (1) whether the employer knew or should have known (had the employer exercised ordinary care) of the employee’s unfitness at the time of hiring, and (2) whether that foreseeable unfitness was a cause of the resulting injuries.  Here are a few examples of when this might come up and how these two aspects of a case can apply.

Let’s say a moving company hired someone, who had an extensive criminal record of arson convictions for setting houses on fire.  This would likely satisfy the first aspect, in that the employer either did run a background check and found these things, or did not run a background check but should have (and had it done so, it would have found the convictions).  Let’s say that employee then stole a safe from the property the moving company was transporting.  That would likely not satisfy the second element, because the foreseeable unfitness (a proclivity for burning down buildings) was not a proximate cause of the injury (the employee stealing the safe).  Now, if the employee had a conviction, or better yet multiple convictions, for theft, larceny, burglary or similar crimes, that would likely satisfy the second aspect and leave you in a position to submit a colorable claim for negligent hiring.  A moving company should know that employees with histories of stealing are going to be provided with ample opportunities to steal when they’re transporting every belonging a family has from home to home with minimal supervision.

Serious thought must be given to whether or not the specific unfitness of the employee, even when it’s a very dangerous unfitness generally, is really an unfitness for that job.  It is easy to get so focused on the extreme nature of the underlying facts supporting the employee’s “unfit” status that you lose sight of whether or not those underlying facts really make the person unfit for that specific job.  For example, let’s take that same pyromaniac employee, but let’s say he was hired as a cashier by a major electronics retailer.  One day, he runs to the bathroom, locks the door, pours lighter fluid all over the bathroom, then lights it on fire, ultimately burning the building to the ground and seriously injuring one person. The plaintiff, the injured person, might be so focused on the fact that a multiple felon was employed despite his criminal record that he or she would make the weak argument that a multiple felon can never be employed anywhere, and miss the stronger argument that the act of lighting the electronics store on fire was completely foreseeable, as he had multiple convictions for lighting buildings on fire.  The defendant, the electronics company, would likely argue that (1) he was not unfit to work as a cashier, as that does not provide you any real opportunity to start fires, and (2) that he only had a history of lighting homes on fire, so even if lighting homes on fire made you unfit to be a cashier, it was unforeseeable that the employee would light a business on fire.

One final aspect of negligent hiring cases worth a brief discussion is that there is a strong argument to be made that employers who send their employees into their customers’ homes are under a higher standard of care than those whose employees do not enter customers’ homes.  Conversely, if an employer has an employee who does not come into contact with the public, there may not be a duty to perform a background check.  But such a rule seems to needlessly cast aside the safety concerns of co-workers.

Negligent Retention

Negligent retention is very similar to negligent hiring.  The duty of an employer to exercise reasonable care in selection of employees is ostensibly the same when it comes to retaining them.  Accordingly, negligent retention claims often accompany negligent hiring claims.

Negligent retention claims can be brought in conjunction with a negligent hiring claim or separately.  Two common examples of why such a claim would be brought without a negligent hiring claim are when an employee, who had no history at the time of hiring that would put an employer on notice of his or her unfitness, (1) gets charged with a crime after hiring or (2) is the subject of customer complaints.  The employer might argue that criminal charges are not something it is privy to, but if the employer took no steps to inquire as to employees’ criminal conduct, it might not carry much weight with a jury to argue that you couldn’t find out, when you weren’t trying to find out in the first place.  It would be very difficult for an employer to deny knowledge, actual or constructive, of customer complaints.

Negligent Supervision

Negligent supervision claims essentially are claims that there was a duty to supervise and that a reasonable person would recognize that an incident of the type alleged could occur, and that steps should have been taken to prevent it.  The exercise of ordinary care may require more vigilance and caution when a child or other helpless individual (such as someone with mental deficiencies), is involved, and a potentially dangerous condition exists that the supervisor should be aware of.

Missouri, for example, has recognized negligent supervision claims in a number of situations, including parents, grandparents, teachers, and babysitters.

In the case of supervision of a child (e.g., parents and grandparents), some defendants have argued that the defendant must have exclusive power to control the harm to be liable.  This is another way of saying, “I knew about the danger and didn’t do anything about it, but I didn’t cause the harm myself, so don’t blame me.” This is a perfect application of the phrase so often quoted in so many variations: “All that is needed for evil to prevail is for good men to do nothing.”  This argument has been rejected by at least one court, ruling that it is the obligation and ability to supervise and control the child, not the instrumentality that caused the harm, that is the decisive factor as to whether or not a party can be held liable for negligent supervision.

The opposite is true of negligent supervision of an adult, which emphasizes the supervisor’s right and ability to control the activity of the wrongdoer rather than to control the injured victim.

Negligent Training

Negligent training cases focus on whether the employer owed a legal duty to the plaintiff to exercise reasonable care in training its employee, the defendant did not exercise reasonable care in training its employee (or failed to train him or her entirely), that failure proximately caused the injury, and the plaintiff suffered damages because of the injury (financial, physical, or possibly otherwise).  Negligent training cases are usually brought in conjunction with one or more of the above claims, but can be brought independently.

 

If you think that you have suffered a wrong that may be due to one of the claims above, call The Flynn Law Firm today for a free consultation.

 

 

Posted in Assault, Battery, Damages, Emotional Injury, Head Injury, Interest Income, Litigation, Lost Wages, Personal Injury, Physical Injury, Punitive Damages | Tagged , , , , | Comments Off on Negligent Hiring and Related Claims

Flaws in Kansas and Missouri Texting While Driving Laws

With some limited exceptions, Kansas Statute Annotated 8-15,111 prohibits writing, sending, and reading written communications on a wireless communications device while operating a motor vehicle on a public road (i.e. texting while driving).

Missouri Revised Statute 304.820 has substantially the same prohibition, but only for those “twenty-one years of age or younger.” However, Missouri’s law addresses commercial vehicles, while Kansas’s does not.  In Missouri, anyone operating a commercial vehicle is prohibited from using a hand-held mobile telephone entirely.  While operating a commercial motor vehicle, the driver is also prohibited from using a wireless communications device to send, read, or write a text message or electronic message.

Missouri defines the term “electronic message” to include “electronic mail, a text message, an instant message, or a command or request to access an internet site,” but the term is not limited strictly to those examples.  The state might argue that the use of, for example, a YouTube app (or other apps that are merely mobile versions of a website) is still an attempt to access an Internet site, albeit one customized for mobile phones.  Kansas defines the prohibited act as “using a wireless communication device to manually type, send or read a written communication, including, but not limited to, a text message, instant message or electronic mail.”

Missouri’s idea that younger people should be prohibited from texting and driving, but anyone over the age of twenty one should not, is dubious.  While it is true that younger people are less experienced drivers, they are infinitely more experienced texters.  It is hard to imagine that all 20-year-old drivers are able to focus less on driving while texting and driving, than all 70-year-old drivers doing the same.  Both drivers are engaging in the same activity, but texting or emailing is an activity that likely requires more focus from the 70-year-old driver than the 20-year-old driver.  The former may still be learning how to communicate electronically, while it may be almost second nature to the latter.  This is in no way advancing an argument that younger drivers should be exempt from this law.  Rather, older drivers should not be exempt from the law.

The overarching problem with both laws is their scope.  The following acts are commonly done with cell phones while driving, yet they are not expressly prohibited by either state’s laws:

Using GPS apps on your phone (which could require the looking up of an address and inputting the address into the app, all while driving)

Using music apps in any way (you could be creating a 100-song playlist while driving, which obviously requires far more distraction than a simple text message or email)

Using Facetime or a similar video phone app (while you could Facetime or Skype without looking at the camera—thus, away from the road—you likely would be looking at the phone a fair amount)

Using game apps (no explanation needed as to why you wouldn’t want the car next to you playing Candy Crush while driving down the highway)

Using camera apps (the idea of someone taking pictures of themselves, reviewing them, and inevitably retaking them, almost makes you wish they were texting)

Using video apps (again, the idea of the driver next to you watching a hilarious YouTube video for the first time almost makes the idea of them texting seem like a better alternative)

Going through your contacts to find a number you want to call

Interestingly, Kansas exempts devices that are “voice-operated and which allow the user to send or receive a text based communication without the use of either hand, except to activate or deactivate a feature or function.”  This is likely just a poorly phrased law, with its intention being to exempt messages that are actually written, sent, or received by using a voice-operated function, rather than to exempt the phone entirely.  If this law were to be read to mean exactly what it says, then all activity on iPhones would be exempt from the law, as the phones themselves are not subject to the law, as they do allow users to send or receive a text based communication by simply activating Siri and then telling her to text one of your contacts, dictating the text, and commanding her to send the text, all by voice.  Nonetheless, it seems apparent that the Kansas law’s intent is to exempt people using the phone in that matter, rather than exempt the phone entirely, due to its capability of being used in that manner.

Missouri handles the voice-operated exception much more clearly by simply exempting:  “the use of voice-operated technology.”

The crux of these laws’ problem is their enforceability.  Imagine how this plays out in the real world with a driver who is aware of the scope of these laws and his or her Fourth Amendment rights:

[Officer sees Driver typing something into their phone as Driver drives past Officer, Officer pulls over Driver]

Officer: “I saw you texting when you drove past me.”

Driver:  “I wasn’t texting; I was (insert any use of the cell phone not prohibited by the law).”

Officer:  “Open up your texts and let’s see when the last one was sent.”

Driver:  “Unless you have a warrant, you don’t have the right to go through my phone and I’m not going to consent to such a search.”

Officer:  “Fair enough. Have a good day.”

Texting while driving is a serious issue that is being addressed by state legislatures around the country.  The problem is that unless the holding of a phone while driving a car is illegal, the driver will always be able to claim they were engaging in a legal activity.

Note:  There are two cases currently before the Supreme Court of the United States regarding cell phone searches:  United States v. Wurie and Riley v. California.  In Wurie, the question before the Court is whether the Fourth Amendment permits the police to review, without a warrant, the call log of a cellphone found on a person who has been lawfully arrested.  This decision is unlikely to address the issue of whether or not a police officer can go through someone’s phone who has been pulled over but not arrested.  In Riley, the question before the Court is whether evidence admitted at trial was obtained in a search of a cell phone that violated the phone owner’s Fourth Amendment rights.  This is even less likely to address an issue relevant to solving the problem with texting and driving laws.  While that case could be relevant if an officer took it upon himself or herself to simply seize the driver’s phone and gather evidence, if the phone’s owner had a passcode to access the phone, this officer’s efforts would be immediately thwarted.

 

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Flynn Law Firm Accepts LiteCoin Payment

The Flynn Law Firm now accepts the cryptocurrency Litecoin (LTC) as payment for legal services.  The Flynn Law firm has accepted its more well-known cryptocurrency cousin, Bitcoin (BTC), since October 2013.  (Of course, traditional forms of payment are still welcome.)

Litecoin is an open-source, peer-to-peer cryptocurrency similar to Bitcoin, that was released in 2011.  It attained a greater level of credibility when The Economist mentioned Litecoin as a Bitcoin alternative in April 2013, and in May 2013 when Ars Technica deemed Litecoin as the "most prominent alternative to Bitcoin . . . ."

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Taxation of Lawsuit Settlements

It’s natural to wonder, “How will my lawsuit settlement be taxed?”  Indeed, this is a question that should be addressed before even deciding to settle a personal-injury lawsuit in the first place, because the tax treatment of lawsuit settlements are treated differently, depending on whether the moneys are intended to reimburse a plaintiff for bodily injuries, damage to personal property, lost wages, etc.  The last thing you want is to receive a settlement to make you and your loved ones whole, and then to have the Internal Revenue Service (IRS) come take much of it away.

Damage to Property (Real Estate or Personal Property)

An example of damage to property that could be reimbursed through a lawsuit settlement is in a common automobile collision case.  If the settlement is meant to compensate the victim for the car’s lost value, generally that money does not need to be reported as income.  Note that if the settlement exceeds the “adjusted basis” of the property—this is more common in a business context—then there will be tax implications, and it would be a good idea to consult with an accountant.

Personal Injury (being Physically Hurt or Physically Sick)

A person who has suffered a personal physical injury—like broken bones, soft-tissue nerve damage, etc.—does not need to pay taxes on settlement money related to that personal injury. 

But it’s important to remember that if the injured person has taken an income-tax deduction for the medical expenses in treating the injury, and any part of the settlement is to reimburse the victim for medical expenses, that portion must be declared as income.  Again, this only applies where the injured person has taken a tax deduction in a prior year for medical expenses for treating the injury.

Emotional Injury (Emotional Distress or Mental Anguish)

If the emotional injury originates from a personal injury—like being physically hurt or sick—then these settlement funds are treated the same as those paid for physical injuries (not taxable).  If the emotional injury does not originate from a physical personal injury, then those settlement proceeds are taxable (though the injured person still may deduct the cost of the medical treatment for the emotional distress).

Lost Earnings (Lost Wages, Lost Salary, or Lost Employment Benefits)

If the lawsuit is employment-related (perhaps for racial discrimination, sexual harassment, age discrimination, wrongful termination, etc.), then the portion for lost wages is taxable, and must be reported as wage income and be taxed.

Interest Income

If you receive interest income on a monetary settlement, the IRS treats that as taxable “interest income,” and you must report it on your tax returns.

Punitive Damages

Generally, a jury may award punitive damages where there is substantial evidence establishing that the wrongdoer’s conduct was outrageous and based on an evil motive or reckless indifference to the rights of others.  Although settlements agreements don’t typically earmark any of the settlement funds as “punitive damages,” it’s still worth mentioning. 

First, it is necessary to understand that in Missouri, punitive damages are limited to either $500,000 or five times the net amount of the judgment.  R.S.Mo. 510.265.  (If that seems like it violates basic Constitutional principles, like equal protection and due process, that’s because it does.  But unfortunately—for the time being, anyway—the Missouri Supreme Court disagrees.)  And the Missouri General Assembly has gone one step further, allowing the judge to reduce the jury’s punitive-damages award (called “remittitur”).  R.S.Mo. 510.263.  Fortunately, Missouri judges also have the power to increase the punitive damages, too, under the same statute (called “additur”).

Second, it’s also important to understand that the victim/plaintiff still can’t take home all of that money—before even considering taxes.  That’s because under R.S.Mo. 537.675, the state gets fifty percent (50%) of the punitive damages, which goes to the Missouri Tort Victims’ Compensation Fund (calculated after attorneys’ fees and expenses are deducted).

Now, after all of those reductions and deductions, whatever punitive damages reach the victim/plaintiff are taxable as “other income” on federal income tax returns.  It doesn’t matter if those punitive damages relate to physical injuries, damage to property, or anything else.  They are taxable.

Posted in Assault, Assault, Battery, Battery, Business, Damages, Emotional Injury, Head Injury, Interest Income, Litigation, Lost Wages, Missouri, Personal Injury, Physical Injury, Punitive Damages, Settlement | Tagged , , , , | Comments Off on Taxation of Lawsuit Settlements

State of Kansas v. Stevenson: The Supreme Court of Kansas rules that the odor of alcohol, alone, does not establish the probable cause needed to search a vehicle

The Fourth Amendment protects us from unreasonable searches and seizures.  In Kansas, courts view any search conducted without a warrant as unreasonable per se under the Fourth Amendment, unless the State can fit the search into one of the recognized exceptions to the warrant requirement.  In other words, the State always bears the burden of proving the lawfulness of any warrantless search.  The lawfulness of a warrantless search depends on the totality of the circumstances, meaning that all factors must be considered, including those that tend to show that no crime took place.

One of the recognized exceptions to the warrant requirement is the automobile exception.  This is because the mobility of vehicles provides exigent circumstances (for example, a driver could quickly flee the scene, drive away and destroy evidence, etc.).  Under the automobile exception, if a vehicle is readily mobile and probable cause exists to believe the vehicle contains contraband or evidence of a crime, no warrant is needed for police to search the vehicle.

Here is a brief summary of the facts in this case.

Officers were watching a house, whose occupants were suspected of illegal drug activity.  When Mr. Stevenson left the home in his vehicle, the officers followed him.  Shortly thereafter, the officers pulled Mr. Stevenson over for failing to signal for 100 feet prior to his turn.

This basis for pulling him over is worth a quick aside.  The Supreme Court of Kansas has held that a driver is absolutely liable if he or she fails to continuously signal a turn for 100 feet prior to the turn. And the police need probable cause of a traffic infraction or crime to pull you over.  So if you fail to continuously signal a turn for 100 feet prior to the turn, you have given the police probable cause to pull you over, even if the traffic violation is solely a pretext for the real reason they want to stop you.  That means if the cops are looking for a reason to pull you over, just like they were looking for a reason to pull Mr. Stevenson over, all they need to do is wait until you fail to signal for the entire 100 feet prior to making a turn.  So if you don’t want to get pulled over, one thing to be mindful of is making sure to signal for at least 100 feet prior to a turn.

Back to the facts of the case.  Because the officers detected a strong smell of alcohol coming from the car, one officer asked Mr. Stevenson to step out of the vehicle and proceed to the rear of his car.  The other officer then noted that a very strong odor of alcohol was still coming from the car, even though Mr. Stevenson was no longer in it.  Mr. Stevenson passed a field sobriety test and was allowed to re-enter his vehicle.  A records check showed that his driver’s license was valid and he had no outstanding warrants.  Despite this, and despite no open containers being visible to either officer, the officers searched his car for an open container based solely on the strong smell of alcohol coming from the car.  They found two glass pipes with residue of methamphetamine, a digital scale, and a half-empty bottle of wine.  The officers then arrested Mr. Stevenson and upon searching him incident to the arrest, they found methamphetamine in his wallet.  The defense moved to suppress all of the acquired evidence as the fruit of an unlawful vehicle search.

As stated earlier, if a vehicle is readily mobile and probable cause exists to believe the vehicle contains contraband or evidence of a crime, no warrant is needed for police to search the vehicle.  In this case, Mr. Stevenson’ vehicle was readily mobile (as it was just driving down the road), so the only remaining issue was whether or not probable cause existed.

The district court upheld the search, finding that the strong smell of alcohol, on its own, gave the officers probable cause to search the vehicle.  Following a bench trial, Mr. Stevenson was found guilty by the district court.

On appeal, a split panel of the Court of Appeals upheld the ruling, opining that “the very strong odor of alcohol emanating from inside the vehicle, where the sole occupant of the vehicle had been excluded as the source of the odor, constituted probable cause to search the vehicle for open containers of alcohol.”

This ruling was appealed to the Supreme Court of Kansas, which granted review. The Court’s decision was issued March 28, 2014.

The statute at issue prohibited possession of an open container only on a highway or street.  So, for example, the driver may have legally consumed the alcohol in his parked car in his driveway, then spilled the alcohol in the car.  Also, Stevenson drove an SUV, which typically don’t have a trunk that is separate from the passenger compartment—it is usually just an area located behind the back row of seats.  Kansas law considered this and explicitly excluded such an area from the open container law (“No person shall transport in any vehicle upon a highway or street any alcoholic beverage unless such beverage is . . . if a motor vehicle is not equipped with a trunk, behind the last upright seat”).  The Court took note that a spilled bottle of wine in the back area of an SUV does not violate Kansas law.  Accordingly, operating a vehicle in which alcohol has previously spilled does not, without more, establish a violation of the statute prohibiting transporting an open container.

The Court found one of the officers’ logic to be flawed when he argued that the smell of alcohol established probable cause, because the smell of marijuana coming from a car establishes probable cause to search the car.  In Kansas, the smell of marijuana in a car does rise to the level of probable cause, so an officer can search a car if he smells marijuana.  Such a rule obviously allows for an officer to simply say that he or she smells marijuana, but that is a different issue for a different day.  The Court stated that the distinction between an officer smelling marijuana and smelling alcohol is that the odor of marijuana is always evidence of illegal activity, but the odor of alcohol, even in a car, is not.

The Supreme Court of Kansas reversed the Court of Appeals decision, holding that the odor of alcohol in a vehicle does not, by itself, establish probable cause to search a vehicle.

It is important to remember that such rulings are limited solely to the circumstances of the case (a link to the full opinion is located below).

Of course, the smell of alcohol on a driver’s breath would justify an officer’s conducting a field sobriety test, which, if failed, would then give probable cause to arrest the driver for driving under the influence.  The officer would then be allowed to search the driver’s person, as well as the car, incident to that arrest.

Also remember that it is never okay to ignore or contest police officers’ authority because of what you perceive to be a procedural or legal flaw in their actions.  Your recourse for such missteps in police action is in court, not at the scene of a stop.  You never have the right to refuse to obey, much less physically resist, a police officer who is searching your vehicle.

However, that does not mean that you have to consent to anything.  If an officer has the right to do something, he or she will generally not ask your permission.  If the officer asks if they can search something, you always have the right to say no.  If you say no and he or she continues to do whatever they asked permission for, do not stop them.  Just be sure to tell your attorney that the question was asked and you did not consent.

Even if you think the officer is doing something beyond the scope of his authority, be respectful and cooperative.  Informing an officer of his or her legally unsupported tactics may allow him or her to correct the otherwise deficient investigation, so it is obviously not in your interest to inform the officer of how your rights are being violated.  Once you have been released, call The Flynn law Firm for a free consultation to discuss any citations or charges you face, as well as any perceived violations of your rights.

Link to the full opinion.

Posted in Criminal Law & Procedure, Drug Possession, DUI & DWI, Kansas, Minor in Possession, Open Container of Alcohol, Probable Cause, Search and Seizure | Comments Off on State of Kansas v. Stevenson: The Supreme Court of Kansas rules that the odor of alcohol, alone, does not establish the probable cause needed to search a vehicle

Piercing the Corporate Veil in Missouri: Personal Liability for Corporate Shareholders and LLC Members

The subject of piercing the corporate veil to attain personal liability against corporate shareholders and LLC members in Missouri is a frequent topic of conversation in our business-transactions and business-litigation law practice at The Flynn Law Firm.   The most fundamental premise of incorporating a business (or organizing a limited liability company), is to protect the business owners from being held personally liable for debts the company incurs.  That's not to say that corporate shareholders or LLC members can't be held liable.  But the general rule is that they are not liable.

But there are certain circumstances when a corporate shareholder or LLC member may be held liable.  This is what is typically called "piercing the corporate veil."  The doctrine of piercing the corporate veil is used to hold a person liable for corporate acts.  In Missouri, there are only very narrow circumstances whereby an owner can be held liable for the company's debts (and it does need to be an owner–just being a corporate director, officer, or manager isn't enough).  One such circumstance is where the corporate entity is used specifically as a mechanism to defraud a creditor.  Another circumstance where the corporation or LLC veil may be pierced is where the business was undercapitalized from the beginning (assets disproportionately small compared to known risks), or where company assets are stripped to avoid creditors' demands.  Where a corporation or LLC is so dominated by someone so as to be considered a "mere instrumentality" of that person, to the point where the person and business are indistinguishable, Missouri courts will pierce the corporate veil.

In order to pierce the corporate veil in Missouri, the plaintiff (i.e., the injured party) must show that the owner exercised complete control over the corporation or LLC.  Mere majority ownership is not enough.  Interestingly, neither is complete stock ownership by itself enough to show "complete control."  It has to be complete domination by the corporate shareholder or LLC member, not only of finances, but of business policy and practices, especially with regard to the transactions at issue.  This is also referred to as an "alter ego" theory (i.e., that the corporate was an alter ego of a person, that for all intents and purposes it didn't have its own identity).  Veil piercing also requires that the complete domination/control to have been used to commit a fraud or other type of wrong, to violate a statutory or other legal duty, or to commit a wrongful act that violates the plaintiff's rights.  And, of course, that conduct must have caused the plaintiff's injury.

 

 

 

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The Flynn Law Firm Now Accepts Bitcoin Payments

In order to accommodate a growing pool of technologically savvy individuals, businesses, and entrepreneurs, The Flynn Law Firm is proud to announce that we began accepting payment in Bitcoins on October 18, 2013.  Whether the legal matter is Bitcoin-related or not, we're happy to be able to accommodate the growing numbers of Bitcoin enthusiasts by accepting payment in this alternative "cryptocurrency" that is gaining traction throughout the world.

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Bitcoin Litigation

By now, many people in the developed world have heard of Bitcoins–the electronically traded virtual currency–which have been around for several years now; but litigation over Bitcoins is just this year starting to heat up.  For instance, earlier this year Mt.Gox, a Tokyo-based Bitcoin trading platform that facilitates the exchange of Bitcoins among individuals and businesses worldwide, sued Seattle-based Bitcoin exchange business CoinLab for around U.S.$5.3 million over their few-months-long partnership.  And CoinLab counterclaimed against Mt. Gox for US$75 million.  Aside from disagreements arising out of the electronic financial transactions in Bitcoin currency, many Bitcoin "miners" are feeling aggrieved over Bitcoin mining equipment manufacturers' costly delays.  Underlining the seriousness of even a short Bitcoin miner shipping delay is the technology's increasing difficulty nearly every two weeks.  That rapidly ascending difficulty equates to quickly diminishing returns for even the smallest delays.  And some delays of Bitcoin mining machine delivery has stretched to several months, causing Bitcoin mining entrepreneurs to lose out on their precious mining opportunity, often turning their opportunity to generate profits into a measly struggle just to break even on the equipment. One Bitcoin mining equipment manufacturer, BF Labs, Inc. (a/k/a Butterfly Labs), of Leawood, Kansas has been the subject of numerous such delayed-shipping complaints, including on its own customer forum.  User "deadmeat" alleged on Butterfly Labs' forum on December 14 that he might not be able to make his money back due to a December 9 delivery of a Bitcoin miner he ordered on July 1.  And user "g.aleksandrov" complained on Bitcointalk.org's forum on August 5 that he hadn't yet received a miner he ordered on May 20.  Although these are merely allegations by nearly-anonymous internet users, it's obvious there is at least a growing sentiment of dissatisfaction in the Bitcoin mining community.  Further complicating matters for these manufacturers are rumblings that the equipment, when delivered, doesn't perform to specification.  The Flynn Law firm has fielded inquiries from multiple consumers recently with these types of complaints.  As with any other legal endeavor, consumers with a potential claim against Bitcoin miner manufacturers must keep in mind several things in deciding what to do.  Most significantly, one must consider the lost opportunity to mine Bitcoins by delays in shipping the purchased equipment, or by the delivery of under-performing equipment.  Most Bitcoin mining entrepreneurs anticipate a specific rate of return based on the current difficulty, and fairly predictable near-term increasing difficulties, at the time of their purchases.  And their inability to mine the number of Bitcoins they anticipated, in the reasonably timely fashion they were right to expect, is at the heart of such claims against the manufacturers.  Then consider the fact that Bitcoin values have been increasing very quickly, and it's easy to see why even a few months' delay can mean major losses.  If you have ordered Bitcoin mining products and have had your shipment significantly delayed or have been provided a product that does not match the specifications of the order, contact us today to see if The Flynn Law Firm's experience in Bitcoin litigation can help you get the lost profits you're owed.

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