Posted on January 18, 2013 in Internet Law

Jennifer O’Brien, a tenured New Jersey public school elementary teacher with 13 years of teaching experience and a master’s degree in education, was teaching a class of 23-first grade students (all of whom were minorities and mostly six-years old), when she posted on her own, private Facebook page these comments about her job to her 300+ Facebook friends and their friends of friends, “I’m not a teacher-I’m a warden for future criminals!” O’Brien didn’t stop there; she later posted to Facebook, “They had a scared straight program in school-why couldn’t [I] bring [first] graders?”

When NJ school officials came across the Facebook post and confronted O’Brien, she said she didn’t intend her comments to be offensive or racist statements, but otherwise she essentially was unrepentant. Parents were deeply concerned and angered by O’Brien’s Facebook posts; protests formed outside of the school attended by dozens; and parents demanded their children be removed from O’Brien’s classroom. O’Brien was dismissed from her position; her dismissal was affirmed by an Administrative Law Judge (ALJ); and ultimately, O’Brien appealed to a NJ state appellate court. O’Brien argued that her dismissal constituted a violation of her First Amendment rights of free speech because (1) her comments addressed a matter of legitimate public concern, i.e., school discipline, and (2) because her comments were made on her private Facebook page, they were protected speech.

Finding O’Brien’s arguments unpersuasive, on January 11, 2013, the NJ court affirmed the ALJ’s findings, stating, “the posting of such derogatory and demeaning comments about first-grade students showed a lack of self-control, insensitivity and a lack of professionalism.”[1] Pointing out the young age of the first-grade students, the fact that O’Brien’s students were all minorities, and the nature of Social Media, the NJ appellate court applied an earlier United States Supreme Court decision, Pickering v. Board of Education, 391 U.S. 563, 568 (1968), on teachers and free speech, and concluded that O’Brien’s right to her express comments on Facebook “was outweighed by the district’s interest in the efficient operation of its schools.”

Continue Reading ››

 Posted on January 18, 2013 in Gun Laws

In a media-generating stunt, the Journal News, a suburban paper in Westchester County, NY, accessed state public gun permit records, compiled the names and addresses of gun owners in three New York Counties, and then posted an online map identifying and marking on the map all of the gun permit holders in each county, with their home addresses. (New York state law requires that the identity of gun permit holders be made public.) Wisely citing safety concerns, Putnam County officials, however, refused to release to the Journal News their gun permit holders’ personal information.

Although the Journal News correctly points out that New York law makes the information available public and the Journal News seems to suggest that its motives are altruistic and done in response to the horrific massacre at a Connecticut elementary school, there are serious and potentially catastrophic privacy and safety problems with the law and the newspaper’s actions. First, the law was written prior to social media and Google maps-which have enabled the identity and home address of thousands of gun owners to be made public to millions in a matter of seconds. Second, the Internet “gun map” creates an online roadmap to the location of thousands and thousands of guns-and that roadmap is available to every Tom, Dick and Harry who has access to the Internet (regardless of their mental status). Can’t get a gun because of a criminal conviction? Don’t worry… thanks to the Journal News, every criminal, every stalker, every disturbed individual now can easily locate you, your home and your gun. A little surveillance-no one’s home, a quick break and enter-and presto, you have a free gun. And stalkers now know whether the targeted victim has a gun to protect him or herself.

Continue Reading ››

 Posted on January 18, 2013 in Uncategorized

I am and have been involved in a number of cases where law enforcement and criminal defendants attempt to punish victims of violent crime for reporting the crime and seeking justice. Sara Reedy’s case, discussed here is an excellent example of precisely how survivors, victim advocates and their lawyers should respond-by going on the offensive.

Sara Reedy was assaulted at gunpoint at the gas station where she was working as a cashier. The perpetrator pulled a gun on her, emptied the till and forced her to perform a sex act on him. The detective who interviewed Sara and thought she invented the story to steal money from her employer. While pregnant, she was arrested on theft and false reporting charges. Her perpetrator later admitted to committing a similar sexual assault not long before Sara’s assault and the charges against Sara did not stick.

Sara sued the detective and, after a protracted legal battle, won a $1.5 million settlement. I commend Sara and her legal team for having the courage and fortitude to fight this clear injustice and I believe all of us who advocate for victims of crime should heed the lesson that the only way to really change victim-blaming behavior is to fight back and wins.

Continue Reading ››

 Posted on January 17, 2013 in Medical Malpractice Law in Maryland

In Maryland, the doctrine of informed consent requires a physician, before a patient undergoes a non-emergency medical procedure, to explain the proposed medical procedure to the patient including warning the patient of the benefits, risks and alternatives. The District Court for the District of Maryland recently had the occasion to review this law in the case of Robertson v. Iuliano, et al.

In that case, Robertson underwent back surgery at St. Agnes Hospital in 2006 following an accident. After the surgery, Robertson developed an infection and two additional surgeries were required. The surgery was performed by Luliano, a doctor employed by Nuerosurgery Services, LLC. Robertson signed informed consent forms for the second and third surgery, but not for the initial surgery. Robertson subsequently filed suit against Luliano, Neurosurgery Services and St. Agnes claiming that he would not have undergone the surgery if he had known of the risk of infection and seeking damages from, among other things, loss of income and medical bills.

Continue Reading ››

 Posted on January 16, 2013 in Environmental Crimes

Recently there have been unprecedented fines and prison terms handed down by judges in Maryland and nationwide for Clean Water Act violations and other environmental crimes. On December 5, 2012, Judge Stagg of the Western District of Louisiana sentenced John Tuma, a former general manager of Arkla Disposal Services, to 60 months in prison, 36 months probation thereafter, and a $100,000 fine for violations of the Clean Water Act (“CWA”). Tuma worked at Arkla’s Shreveport, Louisiana wastewater treatment facility where he allegedly oversaw the discharge of untreated wastewater. Based on those allegations, a federal jury convicted Tuma on 3 counts of violating the CWA, 1 count of conspiracy to violate the CWA, and 1 count of obstructing justice with respect to the EPA’s inspection of the Arkla facility. Tuma has appealed the conviction and sentencing.

Tuma’s sentencing follows on the heels of an unprecedented environmental criminal penalty leveled at Scotts Miracle-Gro Company, the world’s largest marketer of residential use pesticides. On September 7, the Southern District of Ohio sentenced Scotts to pay a $4 million fine for 11 criminal violations of the Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA”). In a separate consent agreement, Scotts agreed to pay more than $6 million in civil penalties, spend $2 million on environmental projects, and contribute another $500,000 to organizations that protect bird habitat. According to Ignacia Moreno, Assistant Attorney General for the Department of Justice’s Environment and Natural Resources Division, the total criminal and civil penalty of $12.5 million is the largest payment in FIFRA’s history.

Continue Reading ››

 Posted on January 02, 2013 in Controlled Dangerous Substances (CDS)

As Aggressive Maryland Criminal Attorneys, the Criminal Defense Team at STSW represents scores of defendants each year who face Mandatory Sentences that must be served without parole for violating Narcotics and Firearms Laws. I have written about many of these cases in the past as they tend to be among the most difficult cases that criminal defense attorneys confront. A few weeks ago I represented three members of a family who had been charged with Trafficking Narcotics with a Firearm.

In addition to this count, the father was also charged with being a Felon in Possession of a Handgun. Both of these counts carry Minimum Mandatory Penalties of five years in prison without the possibility of parole. Needless to say it was a very serious case. Here are the facts:

My client is a 56 year old man who up until 4 years ago had no prior criminal record. He married with two grown children and has worked the same job for 25 years. Hardly the profile of dangerous armed drug dealer for which these harsh criminal statutes were written. On my initial review of the case I was quite concerned as the case appeared strong, particularly with respect to the Felon in Possession of a Handgun Count.

Continue Reading ››

 Posted on January 02, 2013 in Civil Tax

Politics aside (because, let’s face it, it’s all about our own, bottom-line individual/household budgets), let’s look at the impact of yesterday’s tax legislation.

As with everything in life, there is good news and bad news. The federal fiscal plunge may not be as steep, but it doesn’t mean there isn’t a murky mess left to deal with.

Overall, the good news is that the literal eleventh-hour tax bill passage averted global economic panic; the overseas stock markets started strong this morning, and for millions of Americans still looking for work, unemployment benefits were restored. The bad news is that the legislation passage acts as yet another government bandaid, offering temporary relief while the underlying issue requires more attention. Every year it seems more commonplace for our country’s leaders to have these last minute tax debates and potential economic threats because the bigger issue, tax reform, is complicated and heated and never addressed in whole. They couldn’t resolve their debate over the debt ceiling, for instance, and what, if any, programs should be cut from government spending, so those issues will be fought over later this month.

Continue Reading ››

 Posted on December 19, 2012 in Obstetrician Malpractice

When most hear about complications during childbirth most immediately think of the child. Obviously the birthing process is a delicate one, and infants are quite vulnerable to long-term harm that results from prolonged oxygen deprivation, the applications of excess force, and other incidents. However, it is important not to forget that mothers are just as susceptible to serious injury and even death caused by problems during childbirth. In fact, according to some recent reports, the most serious maternal complications are actually on the rise in the United States.

CDC Maternal Injury Report

Some assume that the days of high maternal death rates during childbirth are a thing of the past – at least in the developed world. The reality, however, is that while medical advances have obviously made childbirth safer, there remains serious risks of a mother suffering injury during birth. Those risks may be higher now than they were just a few decades ago.

Continue Reading ››

 Posted on December 17, 2012 in Medical Malpractice Law in Maryland

Popular movies and television shows involving lawyers and lawsuits sometimes create misperceptions about how the justice system actually works. For one thing, while courtroom drama makes the most riveting entertainment, in reality the vast majority of cases end with amicable agreements between the parties involved. Actual trials are certainly more an exception than a rule.

In addition, fictional portrayals often present the image of a check being cut for the plaintiff in a case as soon as the verdict is handed down. The reality, however, is sometimes much more muddled. That is because there is often intense disagreement regarding various parties who may be involved, individual doctors, hospitals, speciality clinics, and multiple insurance companies. Sometimes the fighting after liability is handed down is far more contentious than the original trial itself. This is one of many reasons why it is important to have a medical malpractice attorney who is experienced in these cases and familiar with all of the ancillary issues that may come up and delay payment of damages.

Continue Reading ››

 Posted on December 16, 2012 in Criminal Tax

United States citizens have an obligation to report to the IRS on Schedule B of their U.S. Individual Income Tax Return, Form 1040, whether they had a financial interest in, or signature authority over, a financial account in a foreign county in a particular year by checking “Yes” or “No” in the appropriate box and identifying the country where the account was maintained. They further have an obligation to report all income earned from foreign financial accounts on the tax return and to pay the taxes due on that income.

Separately, U.S. citizens with a financial interest in, or signatory authority over, a foreign financial account worth more than $10,000 in a particular year, must also file a Foreign Bank and Financial Accounts form (FBAR) with the Treasury disclosing such an account by June 30 of the following year. Failing to report such accounts or file required FBAR forms carries significant civil and potential criminal penalties.

Many foreign bank account holders are middle-class citizens with families living abroad, who either inherit funds (held in foreign bank accounts) from those families, or who send money from their paychecks to those families through a foreign bank account. Most such bank account holders are not even aware of the foreign bank account reporting requirement. Then there are those foreign bank account holders who are not only aware of the reporting requirements, but who also specifically seek out foreign banks who promise to provide secrecy to their clients and shield their money from detection from the IRS. The IRS Criminal Investigation Division and the United States Department of Justice work together to identify and prosecute such individuals and the banks assisting them.

Continue Reading ››