Fed Appeals Ct Rules for Fl Man Who Recorded Police

When it comes to recording someone, Florida is a two-party state. That means, generally speaking, one needs the consent of both parties when recording a phone call or conversation. There are, however, broad exceptions to this rule and the 11th Circuit Court of Appeals just carved another large one. In order for the rule to apply, the conversation must be private.

In 2014 James McDonough complained about a specific officer to the Homestead police chief. The police chief invited Mr. McDonough to speak about the incident. McDonough agreed but secretly recorded the conversation. The Miami State Attorney Katherine Fernandez Rundle threatening to charge him if he did it again because his recording was made without the required consent of the other party in apparent violation of the two-party rule.

Not so fast, the federal appeals court said. The court held that there must be an expectation of privacy for the statute to apply. While not ruling on any sort of first amendment issue, it seems as though any time a public official is working in their official capacity, they may be able to be recorded. The court noted that the police chief did not remark that this was a private meeting.

Why the Juice is Loose: Real Legal Analysis of OJ’s Parole Decision

OJ Simpson is perhaps one of the most divisive figures in America today. After his acquittal for murder in the “trial of the century”, he was later convicted of kidnapping and armed robbery in Las Vegas. Prior to the parole decision, media questions were swirling as to whether he would be released or not. Very few commentators actually looked at the legal standard that was going to be applied. Unfortunately, all too often people will “go with their gut” rather than consulting a lawyer to examine the legal standard. Luckily, Nathan Nevins Law has examined that legal standard, and it is obvious as to why the decision was made to grant parole.

The Parole Board in Nevada uses a risk assessment sheet that I have linked to at the end of the article. These are clear and objective legal standards that the Parole Board is supposed to follow. Almost all of them are in Mr. Simpson’s favor. It is a point system based upon things like age, gender, prior violations of supervision, disciplinary conduct, and whether the inmate has completed a treatment course while incarcerated among other things.

To give an example of the lack of true legal analysis that we saw in the lead up to this decision, the media hyperventilated because he was caught masturbating in his cell a month ago, despite zero other disciplinary misconduct during his entire prison sentence. They pondered whether this would stop him from being paroled. Of course, if one actually looks at the parole risk assessment, having one misconduct of any kind is a grand total of zero points.

OJ needed at 5 points or lower to be considered a low risk of reoffending. It seems the only points Mr. Simpson had were 2 points for committing a robbery, 2 points for having a serious history of alcohol abuse, and 1 point for being a male. He received -1 point for his completion of a treatment program and -1 point for being over 41. This makes for a grand total of 3 points.

The Parole Board is also legally obligated to consider support and opposition. While most can bring forth positive comments from well wishers, friends, family and their attorney, a lot fewer can bring forth support from their victim. Bruce Fromong is the only victim still alive from the 2007 robbery. He testified in support of Mr. Simpson’s release.

Mr. Simpson will likely be released sometime in October, 2017. We have heard “legal analysts” and other talking heads postulate for weeks as to whether he would be granted parole or not. However after actually looking at the appropriate legal standard, after actually doing the research, it is clear as to why they made their unanimous decision.

Link for Nevada Parole Risk Assessment: http://parole.nv.gov/uploadedFiles/parolenvgov/content/Information/NV_ParoleRiskAssessmentForm.pdf

The Lawsuit for Smokable Med Marijuana in Plain English

Last November, over 70% of people voted for medical marijuana. Last month, the legislature created rules for medical marijuana that specifically banned smokable marijuana. Last week, John Morgan sued the state, arguing that these new rules were unconstitutional. Nathan Nevins Law has been able to get a copy of the lawsuit that was filed in Tallahassee and we are ready to break down the arguments made in the lawsuit for smokable medical marijuana in plain English.

First, the text of the constitutional amendment specifically does not allow for smoking in public. This suggests that smoking marijuana in private should be legal. Second, the text of the constitutional amendment defines marijuana the same as the criminal code, which includes a green leafy substance. The statute narrows the definition of marijuana and specifically excludes “marijuana in a form for smoking.” In other words, the constitutional amendment defines medical marijuana as A, B and C, while the statute tries to define it only as A and B. Last, the constitutional amendment defines the process as to qualifying for medical marijuana as up to a licensed physician. The lawsuit contends that the legislature is substituting their medical judgment for that of a licensed physician by banning smokable marijuana.

Remember, the Florida Supreme Court only has to agree with one of the three arguments presented in order to allow for smokable medical marijuana in the future. While it will take many months to get an answer from the Florida Supreme Court, Nathan Nevins Law will be tracking this and many other current legal issues along the way. Stay tuned!

Coming Soon? The Textalyzer Checkpoint

The “Textalyzer” is a tablet like device that plugs into a smart phone to scan data. Lawmakers in multiple states are seeking to pass legislation to utilize this Textalyzer device. Opposing these laws are privacy champions, who argue that this effort to crack down on distracted driving is classic government overreach. We have heard of DUI checkpoints but are “Textalyzer” checkpoints coming soon?

This new device can tell police if a motorist placed or received any calls, opened any apps, or sent any messages. It would give police exact times of the usage as well. For those that have had loved ones in accidents due to texting and driving, allowing this device is a no brainer. In 2015, nearly 3,500 people died in the United States as a result of distracted driving. They argue that privacy activists fears are not warranted because: 1) Many of the bills proposed, including the bill in the New York legislature, only allow the Textalyzer after an accident or collision and 2) The device can simply detect “swiping and typing”, not content.

This does not stop many from crying foul and arguing that Textalyzer’s use will become more widespread. They argue that this is just another way for the government to collect personal data. Opponents say that there are many methods that are far less intrusive to obtain phone records. Police can already ask a judge to issue an order for cell phone records. Privacy advocates also argue this device is not reliable enough for law enforcement use. (It has not been approved for law enforcement usage yet.) Still others argue that even if there are safeguards, this device will be abused by individual officers, nor do they trust the Government to keep the data safe from hackers.

Texting and driving is already illegal in 47 states. We will have to wait and see how many decide to adopt this new technology. Do not be surprised if in the next decade we begin to hear of “Textalyzer” checkpoints.

Today’s Business Epidemic: Poorly Drafted Contracts

There is an epidemic today in business: poorly written contracts. The proliferation of the internet has only made this problem worse. These contracts are often completely unenforceable. That means they will not stand up in court. A large part of my firm’s practice involves creating and reviewing business contracts, and I cannot begin to tell you how frustrating it is when another business proposes a poorly written contract. A business should not have to guess as to their obligations under a contract. These bad contracts are sometimes created by someone who is not even an attorney!

Good contracts should usually include the following:
1. A clear understanding of each parties obligations
2. How to deal with problems when they arise
3. The length of the agreement and the penalties for a breach
4. Unambiguous writing
5. Definitions of any technical terms

A good contract will save you from future pain down the road. The cost of litigating a bad contract after a breach will almost always be much more expensive than paying to create a good contract in the first place. Remember, an ounce of prevention is worth a pound of care.