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Datamaster-300x200On January 13, 2020, the Michigan State Police (“MSP”) declared every evidentiary breathalyzer in the State of Michigan compromised and unusable. The contractor responsible for calibrating the machines falsified certification records, making test results from those devices inadmissible in court. Although the criminal fraud investigation has only just begun, the MSP has identified 52 drunk driving cases that have been compromised, and at least 12 of those cases have already been dismissed.

The situation is dripping with irony. Someone’s scheme to avoid an afternoon of work, pretending it was already completed, created a statewide crisis that investigators, judges, attorneys, administrators, law makers, and untold others will spend countless hours fixing. Nevertheless, allowing unmonitored drunk drivers back on the road is a serious matter. Courts will not be able to mandate treatment for individuals convicted of Operating While Intoxicated (“OWI”), foregoing a critical opportunity for judicial intervention into a serious public health concern.

Most people are familiar with an intervention, where friends and family gather together to try and convince someone to accept treatment for a substance use disorder. Well, a large number of successful interventions are conducted under judicial supervision. When first detained, the suspect will be under constant observation by law enforcement. When the suspect is subsequently released on bond, he or she will be subjected to community monitoring, including regular alcohol and drug testing. Prior to sentencing, most courts conduct a substance abuse evaluation, where an experienced social worker evaluates the defendant’s substance use disorder(s), if any. Armed with the results of the evaluation, courts will order proportional and targeted treatment during sentencing. The underlying threat of a probation violation and possible jail time for non-compliance motivates compliance with treatment.

FDA-300x221On May 23, 2017, Dr. Amy J. Reed, an anesthesiologist and mother of six children, passed away in her home at the age of 44. Her life was cut short by an aggressive form of uterine cancer, leiomyosarcoma. For her husband, the tragedy of her early death is entwined with regret and anger, as the two of them fought not only Stage IV leiomyosarcoma, but an intractable profession and the industry which profits from its practice.

At the age of 40, Dr. Reed was diagnosed with uterine fibroids. Fibroids are masses of the smooth muscle cells lining the inside of the uterus. Although fibroids are generally considered benign, their presence can cause serious discomfort and pain in the pelvic area. To treat her condition, Dr. Reed underwent a hysterectomy. She chose to have the procedure performed at Brigham and Women’s Hospital in Boston—the hospital is affiliated with the Harvard Medical School, where both Dr. Reed and her husband, Dr. Hooman Noorchashm both held teaching positions.

After her surgery, the tissue was removed, and a biopsy was performed. The tissue contained leiomyosarcoma cells, an extremely aggressive form of uterine cancer. Although the biopsy revealed that the cancer cells had been confined to a very small area within a fibroid, the procedure through which the fibroids were removed seeded malignant cells throughout her abdomen. The dissemination of cancer cells caused her cancer to accelerate to Stage IV. The five-year survival rate for patients diagnosed with Stage IV leiomyosarcoma is only 14%.

Lots-of-Guns-300x200I have posted several blogs regarding the legal considerations surrounding firearms. The first post related to the Protection of Lawful Commerce in Arms Act, 15 U.S.C. § 7901 (2005), et seq., (“PLCAA”), which prohibits lawsuits against gun manufacturers and dealers, except under very limited circumstances. I also wrote about the surviving families of the Sandy Hook massacre’s lawsuit against Remington Arms Co., under PLCAA, based upon violation of a state consumer protection law. More recently, I wrote about the City of Kansas City’s lawsuit against a gun manufacturer, Jiménez Arms, and several gun dealers arising out of a gun trafficking ring. This blog explores that trafficking ring, how it worked, and what damage it caused before it collapsed with the arrest of the main perpetrator, James Samuels, on October 4, 2018.

Samuels, a captain with the Kansas City fire department illegally traded in arms from 2013 to 2018. Domestic gun traffickers usually sell to two types of clients. First, they sell firearms to “prohibited persons,” which are individuals restricted from owning or possession a firearm. Under federal law, anyone convicted of a felony is permanently banned from owning or possessing a gun. This leads to the second reason gun traffickers exist. The guns they sell will not be traceable to the purchaser, as the transaction is not recorded. Much of the time, the gun has been reported stolen, so it has no owner. A felon that wants to have a firearm can buy that gun from a trafficker, and when if it is used in the commission of crime, it can be disposed of without concern of being identified through its registration.

On November 22, 2013, Samuels placed a call to Jiménez Arms, a gun manufacturer with the reputation for building very cheap pistols, ideal for disposal after committing a crime. He told the company contact that he was a firefighter but worked part-time at Conceal & Carry (C&C), a gun dealer in Kansas City. The manufacturer received confirmation from C&C that Samuels in-fact worked for the dealer. As a consequence, it gave Samuels permission to purchase guns.

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As I explored in a previous blog, the Protection of Protection of Lawful Commerce in Arms Act, 15 U.S.C. § 7901 (2005), et seq., (“PLCAA”) has shielded gun manufacturers from suit since its enactment in 2005. The law bars any civil liability action against a firearms dealer or manufacturer, except for certain limited exceptions. My previous blog revolved around the parents of the victims killed in the Sandy Hook massacre, who survived summary judgment on a motion conceived under PLCAA filed by the defendant, Remington Arms Company. Now, the city of Kansas City is bringing a claim against a manufacturer and several firearms dealers, which may further chip away at the Act’s once impenetrable protection.

PLCAA’s protection is broad. 1515 U.S.C. § 7902 provides that “[a] qualified civil liability action may not be brought in any Federal or State court” against a firearms manufacturer or dealer. The definition of a qualified civil liability action is explored in § 7902, which defines the term broadly, encompassing ostensibly all civil claims against licensed gun dealers and manufacturers. However, § 7903(A) identifies certain claims that will not be considered a qualified action.

Contractual disputes or claims for breach of warranty are not qualified actions. § 7903(5)(A)(iv). Neither are claims related to defective design or manufacture of a firearm. § 7903(5)(A)(v). Claims arising out of negligent entrustment, where a manufacturer or a dealer puts a firearm into the hands of someone likely to injure themselves or others, are permitted. § 7903(5)(A)(ii; § 7903(5)(B). Similarly, if a manufacturer or dealer knowingly provides a gun to a person intending to commit a crime of violence or engage in drug trafficking, immunity from suit is not available. § 7903(5)(A)(i).

multicultural-board-room-300x200Modern American immigration policy is rooted in the Immigration and Nationality Act of 1965, which dramatically changed the then existing system. The 1965 Act, also known as the Hart-Cellar Act after the bill’s sponsors, fundamentally changed the manner in which immigrants were deemed eligible for admission to the United States. Prior to its enactment, American immigration policy was based on race and ethnicity, favoring immigration from northern and western Europe to the exclusion of eastern and southern Europe, Asia, Africa, and the Americas.

The previous system, originating under the Immigration and Nationality Act of 1924 and revised under the Immigration and Nationality Act of 1952, relied upon quotas for admission based on an immigrant’s nation of origin. The 1924 Act was rooted in feelings of xenophobia and isolationism, and intended to keep the United States population as homogeneous as possible. The legislature relied upon eugenics as justification for nearly eliminating catholic and Jewish immigration, as well as a complete ban on Chinese and Japanese immigrants, in order to prevent the spread of “feeblemindedness in American society.”

The 1924 Act dramatically slashed immigration by over 50% in one year. The basic formula limited the number of immigrants from a particular country 2 percent of the foreign-born population of that country living in the United States as of the 1890 census. The existing composition of the American foreign born population was heavily skewed towards northern and western European countries of origin, which were perceived as the most favorable countries from which to receive immigrants.

pistol-and-bullets-300x200In 2005, President George W. Bush signed the Protection of Lawful Commerce in Arms Act, 15 U.S.C. § 7901 (2005), et seq., (“PLCAA”)into effect. The PLCAA prevents gun manufacturers and dealers from being sued in relationship to the production and/or sale of firearms, subject to a few exceptions. Historically, these exceptions have been construed narrowly, and as a consequence, manufacturers and dealers have been immune to most types of lawsuits.

The PLCAA permits certain commercial suits, such as a contractual dispute or a claim for breach of warranty. § 7903(5)(A)(iv). Further, immunity does not extend to the defective design or manufacture of a firearm. § 7903(5)(A)(v). Gun manufacturers are subject to the same rules as any other manufacturer of consumer goods. If a manufacturer places a firearm into the stream of commerce which malfunctions due to defective parts or improper assembly, or if it was designed in a dangerous manner and poses an unreasonable danger when operated, the manufacturer can be held liable for resulting injury.

Other exceptions apply when dealers provide firearms to people who should not have one in their possession. One such exception involves negligent entrustment. § 7903(5)(A)(ii). The PLCAA defines negligent entrustment as the act of supplying a firearm to someone the seller knew, or should have known, would likely injure others with the gun. § 7903(5)(B). Similarly, if a dealer knowingly provides a gun to a person intending to commit a crime of violence or engage in drug trafficking, the dealer is susceptible to suit. § 7903(5)(A)(i).

gavel-214x300In 2018, Michigan signed Public Acts 180 and 181 into law, providing victims of sexual assault more time to file both civil claims and criminal complaints. The legislation was spearheaded by a group of sexual assault survivors led by Rachael Denhollander. Denhollander is the first woman to come forward with allegations against gymnastics doctor Larry Nassar. Nassar assaulted numerous gymnasts under the guise of providing medical treatment and is currently serving a 175-year sentence in a Florida federal prison.

Under the new laws, the statute of limitations for sexual assault cases was extended. The former law required a lawsuit to be filed within three years of the assault. This was amended to allow suit any time before the survivor of sexual assault turns 28-years old. Under the new provision, the perpetrator need not be convicted of criminal conduct in order to be sued.

The law also opened a 90-day window for suit against perpetrators of sexual assault by an individual who was convicted of criminal sexual conduct, and who admitted to either (1) being a physician in a position of authority over the victim and using that authority for coercion; or (2)  engaging in purported medical treatment that is considered unethical. The 90-day window applied to assaults occurring after December 31, 1996. This provision is apparently tailored to permit lawsuits against Nassar, as both the time constraints and specific elements coincide with the facts of his case.

man-holding-phone-yelling-300x200Few things are more validating than winning a contested court case. Your dispute has been reviewed by a judge and jury. After considering all the facts, the Court has found in your favor. Along with the feeling of vindication, you may have been awarded a money judgment. Insurance companies pay quickly. On the other hand, individual litigants—some unbound by ethical concerns—can make obtaining payment more difficult than obtaining the judgment in the first place.

After entry of the judgment, judgments debtors have 21 days to make payment. However, if the judgment debtor doesn’t pay within that time period, what happens next? Debtor’s prisons are illegal, so a Court doesn’t have the authority to put someone in jail for disobeying the order. What comes next if the judgment debtor doesn’t pay?

After the 21-day period expires, you can return to court and request an order of either garnishment or seizure. Seizure is where a court officer takes property owned by the judgment debtor, selling it to satisfy the judgment. Garnishment is receiving payment from a third-party who is holding an asset for the judgment debtor. If you garnish wages, the employer will send you periodic installments. If you garnish a bank account, the bank will send you a lump sum.

road-man-broken-car-6078-300x200Buying a car is typically a stressful, yet exciting experience for most people. That sense of excitement can quickly turn to frustration when the vehicle purchased begins having mechanical trouble. Frustration can devolve into anger when the dealer repeatedly makes ineffective repairs, sometimes delaying action or denying responsibility all together.

Each state and the federal government have enacted “lemon laws” to provide redress where a purchaser is saddled with a vehicle that doesn’t meet quality and performance standards. Unfortunately, not all situations are covered by a lemon law; moreover, every state’s, as well as the federal, version of the law is different.

Generally, lemon laws protect purchasers of new motor vehicles from defects or conditions that substantially impair the value of the vehicle and where the manufacturer has failed to resolve the problem after been given a reasonable opportunity to perform repairs. However, various jurisdictions define “new motor vehicles,” “substantial impairment,” and “reasonable opportunity to repair” in a number of ways. There are also a number of variations in the scope and breadth of relief available.

We live in a digital world, where each person’s documented past is accessible at the stroke of a key and click of a button. This powerful technology can literally save a life—medical records can be accessed in seconds, assisting in diagnostics and preventing allergic reaction. On the other hand, anyone with access to the internet can rummage through your past, including the most challenging and difficult moments. For many people, some serious mistakes led to criminal conviction. In the past, the decision to disclose was a delicate balance of transparency versus privacy, with the choice ultimately residing with the individual. That choice has been stripped away, and we wear our past on our sleeves.

Even the bored and nosey next-door neighbor can sneak a peek behind your curtains.

For those with shame over their criminal record, know that you are not alone. It is estimated that over 30% of the adult population has a criminal record of some sort. That is one in three of all Americans. The next time you are in a group of people, look around and do the math—even if you have a clean record, someone close does not. The number of people with serious convictions are likewise staggering. When only looking to those convicted of a felony offense—a crime punishable by more than one-year imprisonment—the figure is shockingly high, nearly 10% of the population. These statistics are sadly skewed against minorities in our country, comprising a disproportionate segment of the incarcerated population.

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