Can New York Legally Forbid You to Own Nunchucks?

You may know about the Supreme Court’s summertime D.C. v. Heller decision, which held that the 2nd Amendment to the Constitution prohibits the Federal government from making laws which substantially infringe on the rights of individuals to “keep and bear arms,” i.e. to carry or own weapons. The Wait a Second! blog reported that on Wednesday, the 2nd Circuit Court of Appeals (the Federal appeals court with jurisdiction over New York) issued its opinion in the case of Maloney v. Cuomo. It held that New York’s law against possessing “nunchucks” does not violate the 2nd Amendment, or the Heller decision’s interpretation of that amendment by the Supreme Court. In other words, it holds that a State may make laws that do infringe on the individual’s right to keep and bear arms.

It is true that the 2nd amendment only prohibits the Federal government from taking away an individual’s right to bear arms. But the 14th Amendment is said to incorporate the vast majority of the rights in the “Bill of Rights,” the first 10 Amendments to the Constitution, against the individual States as well. However, this new Maloney case holds that it is settled law that the  2nd Amendment’s prohibition against Federal laws prohibiting weapon ownership do not apply to the States.

It will be interesting to see if other Circuits face similar cases and how they come out. The Supreme Court will hopefully take on of these cases on appeal and clarify what they neglected to clarify in the Heller case. Is the individual right to bear arms incorporated via the 14th Amendment as a right against State infringement? Or just Federal law infringement?

Either way, if you get busted for illegal possession of a gun, call a good criminal lawyer!

Picture courtesy of karatedepot.com

Putting a “Religion Clause” in Your Will or Trust

The Illinois State Supreme Court will soon consider the case of In re Estate of Max Feinberg. With thanks to John T. Brooks from T&E.com, I found this interesting case. Max and Erla Feinberg created a trust with their substantial assets to care for their children and grandchildren. They placed a provision in the trust that if any of their five grandchildren married outside of the Jewish faith, unless their spouses converted to Judaism within one year of marriage, they were not to benefit from the trust at all. Only one of the five grandchildren actually married within the faith.

The numerous adversely affected parties sued, arguing that the “Jewish Clause” created an unconstitutional restraint on marriage, and should not be enforced by the court, because it violates public policy. In accordance with the majority of the cases that related to similar clauses in Wills and trusts throughout the country, the trustees argued that since the grandchildren were still able to marry many people, it was only a “partial restraint on marriage,” and the Clause should be enforced.

Both the trial court and the Illinois appeals court held that that the clause was unenforceable and violated public policy. They argued that even though the trend until recently has been to enforce such clauses because they are only “partial restraints” on marriage, since the authors of the Restatement (Third) of Trusts §29 (2003) approves breaking with that legal tradition and supports voiding any, even partial, restraint on marriage, they would do so as well.

Given the vociforous debate between the majority and dissenting opinions in this case, the Supreme Court of Illinois may hear the case. The case was on the Court’s 11/18/08 “Leave to Appeal” docket, but I can find no record regarding whether they have agreed to hear the case.  Given that the current cases in the Illinois courts attempt to reverse the general trend that American courts have traditionally validated these “religion clauses,” it will be interesting to see whether the tide has turned, or whether the Illinois court is going to be the “odd man out” on this issue.

It would make sense for anyone making an estate plan, with or without a “religion clause,” to consult with an attorney who is competent in these matters and can advise you of the latest developments.

Picture courtesy of the ChicagoJewishNews.com

When Can the Police Pat You Down?

As an appropriate follow up on this post from Monday about the Court of Appeals, Second Circuit’s decision a few days ago, the Supreme Court ruled on Monday about a related matter. In Arizona v. Johnson, the Supreme Court released a unanimous decision clarifying when a “pat down” for weapons is or is not in violation of the 4th Amendment prohibition against unreasonable searches and seizures.

In the case, a police officer pulled over a car for a routine traffic violation. After noticing some gang related clothing and unusual behavior by the passenger in the back seat, she began conversing with him and he revealed his gang affiliation with the Crips. She asked him to get out of the car, and fearing for her safety, she patted him down, whereupon she found a gun he was illegally possessing. Later on, this individual’s attorney moved to suppress the gun evidence, arguing that the pat down was an unreasonable search and seizure since she had no reasonable suspicion that he had or was about to engage in some criminal activity. All she had was a suspicion for her safety. The trial court allowed the evidence but the Arizona Court of Appeals said that since her suspicions were the result of a consensual conversation, the stop was no longer part of the traffic stop and that the officer therefore lost her ability to pat him down for fear of her own safety, barring a reasonable suspicion of criminal activity, which was absent in this case.

The Supreme Court reversed this Arizona Court of Appeals decision, and let the Trial Court’s decision to allow the pat down stand. They argued that “[a]n officer’s inquiries into matters unrelated to the justification for the traffic stop do not convert the encounter into something other than a lawful seizure, so long as the inquiries do not measurably extend the stop’s duration.”

As Professor Orin Kerr (one of the authors of my Criminal Procedure Casebook!) emphasizes in his post at The Volokh Conspiracy, “[t]he temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop. Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave.” (emphasis added).

Combined with the 2nd Circuit’s decision on Monday, in New York, as long as the police stop a car for a traffic violation, and then see something that makes them suspicious that the occupants may have a weapon, they may pat down the occupants of the car and search the car if there’s some reasonable basis to think that illegal activity has or is about to take place.

These recent developments and decisions make it even more important to get a lawyer who understands the intricacies and the new developments in criminal procedure  regarding what the police may and may not do in a traffic stop, if you get stopped for a DWI, or any other reason…

Picture courtesy of…

In 5 Weeks, Married Couples Home Care Medicaid Changes Take Effect

The New York Times reported some major changes in Medicaid laws, which are very relevant to those who are getting closer to a time when they or their spouse may be looking at going into a nursing home.

Our law office helps clients prepare for future Medicaid applications and also helps clients actually apply to Medicaid so I’ve seen how these issues play out. First, as a general background, nursing homes can charge anywhere between $9,000-$12,000 per month for residents. Senior citizens who have to go into nursing homes will have to spend down their entire life savings in order to pay their nursing home bills. Once a person has spent down virtually all of their life savings, then they can qualify for Medicaid and Medicaid will pay for future nursing home bills.

Until now, if both spouses in a couple are alive, Medicaid had a higher amount of income that the healthy spouse could keep, and Medicaid would pay for the nursing home equivalent of home care so that both spouses could continue to live together. New York State was allowing the same income limits that apply to nursing home residents apply to those receiving home health care through Medicaid. That is $2,739 a month in combined income and $109,560 in assets not including a home or car.

The Federal government says that these income and asset exemptions only apply to nursing home residents now and not home health care recipients. Thus, couples must now choose between continuing to live together and keeping less of their income and assets or separating and having one living in a nursing home so that they can keep the higher exemption for income and assets.

If you are seeking home care and you’re still married, Governor Paterson has extended the effective date of this change as it applies to New York residents until March 1st. So call us right away to discuss how these changes may affect you.

Picture courtesy of the New York Times

Knowing When Police Are Allowed to Stop Your Car

The “Wait a Second!” blog  recently reported on a decision by the Second Circuit, the Federal Appeals Court with Jurisdiction over New York, from January 8th, that clarifies and expands the rule on when the police can search a car.

As background, the court is addressing the question of when a police officer may search someone’s car without violating the 4th Amendment’s prohibition (extended to State and local governments by the 14th Amendment) against police searches without probable cause.  The issue in the case was whether police had to meet the more stringent requirement of “probable cause”  in order to stop the car or whether they merely had to show “reasonable suspicion of a traffic violation” in order to stop the car. If they had been justified in stopping the car, they would have been able to search it after observing a occupant of the car trying to hide something. So the question is whether they were allowed to stop the car. If not, the evidence the police acquired would have to be supressed.

The Second Circuit held that the police only needed “reasonable suspicion of a traffic violation” in order to stop the defendant’s car. So make sure you have a good defense attorney who knows the current law when it comes to police only needing “reasonable suspicion of a traffic violation” to stop your car.

Picture courtesy of Center-of-Mass.com

Defining “Cohabitation” in Your Separation Agreement

Back in October, the New York Law Update Blogposted an interesting summary of the State’s highest court’s construction of a separation agreement in what sounds like a very bitter divorce.

In the case, the husband and wife signed a settlement agreement wherein he had to support her until “the occurrence of any of four ‘termination events.’  These were: (1) the wife’s remarriage; (2) the wife’s death; (3) the husband’s death; or (4)’[t]he cohabitation of the Wife with an unrelated adult for a period of sixty (60) substantially consecutive days.'”

The man had surveillance done on his wife and found that she was basically living with another man for “substantially” 60 days straight. He cut off her payments. She claimed that he couldn’t because she didn’t “cohabit” with the man. She defined “cohabiting” as “having intimate relations.” she claimed that for various reasons, she wasn’t having relations with the man. The husband said that cohabiting in the separation agreement meant “living together” and that he’d shown that she did live with the man for the 60 days.

The trial court and the appellate division sided with the wife that cohabiting meant “intimate relations.” But NY’s highest court, the Court of Appeals in  Graev v Graev, foundthat the meaning of the term was in fact ambiguous and remanded the case back to the trial court to find out what the parties meant when they put “cohabit” in the separation agreement.

I understand what the Court of Appeals said better than I understand the two lower courts. When you read the context, i.e. that they had to “cohabit” for substantially 60 days straight, it just doesn’t sound like the agreement is saying she literally has to have intimate relations with some guy (almost) every day for 60 days!  Barring some kind of big brother surveillance with bugs and secret cameras inside her house, it seems absurd to me to suggest that this is what the separation agreement required that he prove in order to cut off her support payments! 

When I initially read the wording of their separation agreement, the context seemed to indicate that “living together” and “sharing a residence” was the termination trigger, not actual proof of intimate relations.

Bottom line, as Thomas Swartz pointed out, you need a very good attorneyto draft your separation agreement very very carefully and not leave terms, within that agreement, ambiguous.

NY Court’s Vacature of Rabbinical Arbitration Decision Ripe For Appeal

Mitchell Rubenstein, Senior Counsel at NYS United Teachers and an adjunct professor at St. John’s Law School, has some interesting comments on this recent King’s County Supreme Court decision to vacate a rabbinical court arbitration decision in an employment matter.

In Brisman v. HAFTR, a teacher was fired. Claiming wrongful termination, both sides agreed to arbitrate the matter in the rabbinical court, Beth Din of America.  The rabbinical court made its decision and the school appealed it. For more details on why the New York court vacated the arbitrator’s decision, you can read the details, quoted from the New York Law Journal, on the Adjunct Law Prof Blog’s post on the subject.

According to Mr. Rubenstein, this case is ripe for appeal, should Mr. Brisman decide to take it to the Appellate Division because the court innappropriately reviewed the merits of the arbitrator’s decision (a  big no-no) and also because it got involved in matters of religoius law, another big no-no.

Update 2/19/10: Judge Balter’s vacature of the arbitration decree has be overturned!

Picture courtesy of thomasmoore.org

Attorney Representation of Badly Treated Immigrant Para-Medical Workers

I read this post by Jeff Lipshaw from the Legal Profession Blog with great interest. This is especially so because our law office is currently handling almost the exact same kind of case. Lipshaw was discussing a recent Law Review article on the topic entitled: Lawyer’s Worst Nightmare: The Story of a Lawyer and His Nurse Clients Who Were Both Criminally Charged Because the Nurses Resigned En Mass.

The abstract of that article, as quoted in the Legal Profession post is as follows:

Imagine that a group of foreign registered nurses approach their lawyer because they feel abused and want to quit their jobs. They signed an employment contract agreeing to remain employed for three years and are unsure of their rights. The contract that they signed also contains a $25,000 liquidated damage provision. The lawyer advised his clients that they have to right to quit, and after they quit, the lawyer and his clients find themselves at the center of a massive criminal and civil controversy. Both the lawyer and his clients are criminally charged with endangering the welfare of critically ill pediatric patients and related crimes because the nurses resigned en masse without notice. You might think that such a case could not arise in Twenty-First Century America, but in 2007 that is exactly what occurred in Suffolk County New York and resulted in a New York appellate court having to prohibit the criminal prosecution of both the nurses and their attorney. Matter of Vinluan v. Doyle, ___A.D.3d___, 2009 WL 93065 (2d. Dep’t. Jan. 13, 2009).

This Essay examines this troubling case, where the court held that such a prosecution offended the Thirteenth Amendment and the attorneys First Amendment right to provide legal advice to his clients. This Essay explores the public policy issues raised by this case, whether nurses have the same right to withhold their labor as other employees, as well as certain issues which the court did not reach such as whether criminal prosecution of the nurses is preempted by the National Labor Relations Act. Additionally, this Essay explores legal issues surrounding the criminal prosecution of an attorney based on advice he may have given which the court ultimately found to be “profoundly disturbing.” The Essay concludes by explaining that the liquidated damage provision, which may have sparked this entire controversy, was probably unenforceable as a penalty, another issue not reached by the court, that criminal prosecution of both the nurses and their attorney was unwarranted and that the Appellate Division decision was correctly decided.

I would add that in addition to the invalidity of the $25,000 liquidated damages charge that these type of nurses/physical therapists/etc. are typically subject to, these contracts usually provide that the employee must meet all of the ethical and good-care obligations of her profession. Very often, the health care assembly line operations that employ these immigrant health care workers force them to violate their own professional standards or face the $25,000 penalty for quitting. Such practices are thus not only unethical, they also constitute a breach of the very contract under which they seek to sue their former employees.

These are all factors to consider when an immigrant health care worker is seeking the advice of an attorney and considering quitting due to untenable working conditions.

Picture courtesy of immigrationqna.info

E-Mail Mr. Schlissel Your Questions and Get Video Response Posted!

Elliot Schlissel, the founding partner of this firm has been operating a highly successful general practice law office for matters in the Five Boroughs of New York City, Nassau and Suffolk Counties for over 30 years. Through this blog, Mr. Elliot Schlissel will entertain general legal questions by e-mail and post a video response. If you have any question in a Criminal, Real Estate, Guardianship, Elder Law, Matrimonial or Family Court, Forclosure, Personal Injury, General Litigation or Wills, Trusts & Estates Matter, e-mail me with the question, and, if appropriate, Mr. Schlissel will post a video response on this site.

You can see one video about Mr. Schlissel by clicking on the image above or here.

It should be noted that the information provided will be for informational purposes only and that no attorney-client relationship is created.

Can All Jewish Defendants Be Denied Bail? (Updated)

The Jewish Week reportedthat in a criminal matter in Iowa, a Federal Magistrate, Jon Stuart Scoles, would not allow a Jewish defendant to be released on bail, essentially just because he is a Jew.

Under Federal law, (New York bail law is a bit different and is defined by the NY Criminal Procedures Law §530.20) bail can only be denied to a defendant if they pose a flight risk or pose a hazard to the community. The authorities cannot keep someone in jail before their trial for any other reason. Pre-trial detention is not a punishment, nor can it be, since everyone is presumed innocent until proven guilty at trial. However, the law does provide that if the person is likely to flee from the authorities, that person may be kept in custody solely for the purpose of ensuring that he/she still be around for the trial.

Some other parties the Federal authorities were after fled to Israel. The Judge in the case, when considering bail for the primary defendant, Mr. Shalom Rubashkin, cited the defendant’s Jewish identity as one reason he was denying bail. The judge wrotethat “[u]nder Israel’s Law of Return, any Jew and members of his family who have expressed their desire to settle in Israel will be granted citizenship.”

In my opinion, the judge’s rationale is not absurd. In a case of white collar crime, where there defendant poses no danger to the community, the only way bail can be denied is if the person poses a flight risk. Since in this case, the prosecutors claimed that other defendants had fled to Israel, and since any Jew may move to Israel and obtain instant citizenship because of Israel’s “Right of Return” law, it is reasonable to think that Mr. Rubashkin may pose a flight risk. My problem with his ruling is not that it’s irrational. It’s that it may be unconstitutional.

The constitution prohibits government action which treats different classes of people differently in the Equal Protection Clause of the 14th Amendment. The law must make natural distinctions and treat those classes of people differently. For example, the court treats people with a criminal record differently than those without a criminal record. But if the government treats different people differently based on their class membership because of certain unfair or prejudicial distinctions, those laws are subject to especially strict scrutiny by the courts.

Based on this judge’s ruling, he is making a distinction based on a defendant’s Jewish heritage, and treating him differently because of that. It is reasonable that any law that treats one differently because of their Jewish status would be immediately suspect because it meets the elements of an inappropriately discriminatory law. Those four categories are:

1. The groups’ characteristics are immutable. (Race, national origin)
2. The group shares a history of discrimination.
3. The group is politically impotent.
4. The group is a discrete and insular minority.

Distinctions based on one’s Jewish identity would seem to fall into this category. Rubashkins defense attorney did make this argument when pushing for bail, although this argument went unheeded by the judge.  It will be interesting to see how this ruling plays out and whether other judges will be begin denying bail to Jewish defendants on the same grounds.

Certainly, if any of our readers in New York find themselves in trouble with the law, they require a good attorney for not only the bail aspect of the case, but also for mounting  a vigorous defense in general. If that describes you or a friend, be in touch!

Update 1/17/09: Due to the severe blowback that resulted from the denial of bain in this case, a new bail hearing will be held.

Update 1/27/09: In the new bail hearing, bail was granted, and Mr. Rubashkin will go home until trial.

Picture courtesy of bail.com