Wednesday, September 24, 2008

Man intentionally passes gas in face of police officer, gets charged with battery.

First, let me apologize for the subject matter of my last two posts, but the intersection of bodily functions and the law has become quite crowded recently.

Yesterday, it was reported that a West Virginia man was pulled over and arrested for DUI. While at the police station having his fingerprints taken, the man "moved closer to the officer and passed gas on him." The investigating officer remarked in the criminal complaint that the odor was very strong. The man is now charged with battery on a police officer, as well as DUI and obstruction. Click here for full details.

I started to wonder whether that would actually be a battery in Illinois.

In Illinois, a person commits battery if he intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual. 720 ILCS 5/12-3 (a).

I haven't read the annotations, but I doubt that passing gas equals physical contact.

I think the officer would have a better chance filing a civil suit for battery.

According to the Restatement of Torts 2d, an actor is subject to liability to another for battery if (a) he acts intending to cause a harmful or offensive contact with the person of another or a third person, or an imminent apprehension of such a contact, and (b) an offensive contact with the person of the other directly or indirectly results.

I think the cop has a case for the tort of battery. Now the question becomes how much are his damages. I would love to be on that jury.

What the Heck is Elder Law Anyway?

Before I started practicing elder law, my conception of the field was a foggy notion of elder abuse cases, and maybe something to do with helping Seniors take care of their special needs. Those special needs? Hmmm...not really sure. Well, there are so many facets to elder law that not even an elder law attorney is necessarily well-versed in all of them! But, lest anyone else walk around out there with the same foggy idea of elder law that I had, I thought I'd post a thumbnail sketch of some of the more widely-practiced facets of elder law.

As usually comes to mind first, elder law does encompass the area of elder abuse. This includes not just situations of neglect in the medical sense by nursing homes or in-home caregivers, but also financial abuse by those who convince Seniors to invest in various inappropriate financial instruments, or maybe even a family member with financial powers of attorney. There was a recent article on an Elder Law website about a case where the surreptitious taping of a husband in the wife's nursing home room violated the husband's Fourth Amendment rights. There was a complaint of sexually inappropriate contact by the husband, and nursing home officials reported it to authorities. They obtained a search warrant to install a hidden video camera in the room and the husband was subsequently arrested and charged with second-degree sexual assault for having intercourse with his wife while she was unconscious. The circuit court suppressed the videotape evidence, ruling that the husband had a reasonbale expectation of privacy in his wife's nursing home room. That article was WAY more interesting than the ones on tax that are also on the website! :^)

Encroaching upon the elder abuse arena is the area of Elder Rights. Some of the elements of Elder Rights include nursing home transfer or discharge rules, contract rights when one is dealing with Assisted Living or any Continuing Care-type community, issues related to receipt or purchase of long-term care insurance, housing issues such as discrimination or reverse mortgages, pension and retirement issues, or age discrimination in employment. Just by this short list describing two areas of elder law, you can see that this is a vastly varied field that encompasses all manner of different areas of law, as well as various arenas where one would practice. An elder law attorney could find themselves not just at the courthouse, but before an Administrative Law Judge, working with various public Commissions such as the Equal Rights Commission or the Department of Human Services, and even working in a mediating fashion with private entities such as long-term care facilities and banks!

Another area of elder law, where most of the action takes place in probate court, is guardianship. Many times a family member -- usually a child -- consults an elder law attorney when their parent can no longer handle their affairs and more than just a power of attorney is needed. A growing area within this particular segment is in voluntary guardianship. As Seniors live longer with specific long-lasting diagnoses (such as Alzheimer's), some of them are seeking the services of an elder law attorney to do a voluntary guardianship. These voluntary guardianships are usually done on a springing basis, so that as the Senior progresses in their journey of decline they have their affairs in order -- not just for a distribution to heirs at death -- but for their long-term care needs. Which brings me to another area of elder law -- assisting clients with long-term care planning. This area encompasses all manner of services one can provide to a Senior looking at possible long-term care in the future. This ranges from helping the Senior with long-term care placement at a facility or with in-home care, voluntary guardianship or other planning tools for someone to manage the Senior's affairs after they are no longer able, doing estate planning to help the Senior pay for their long-term care costs, advising about or planning for any future public benefits, such as Medicaid or Veterans Benefits, that the Senior may be or become eligible for, to providing referrals or information for caregiver stress or other sources of support for the family.

As you can see, the elder law attorney needs to be well-versed in a vast array of legal areas. In addition to the above, the elder law attorney may also do normal estate planning, estate administration, trust administration, financial planning, tax, or even family law. (Believe it or not divorce is a Medicaid-planning strategy, although not a common one). Although it doesn't seem likely, elder law could even encompass criminal law should one of your elderly clients run afoul of the law! So, in a nutshell, just what the heck is elder law? Anything and everything!

Friday, September 19, 2008

Defendant Tosses Excrement at Markham Courthouse Judge

From Friday's Chicago Tribune:

Murder wasn't the only thing most foul at the Markham Courthouse on Friday.

Cornell Tyler, 37, of Robbins was hauled away after he announced his name was "Self Destruction" and flung human excrement around the courtroom.The incident took place shortly after noon as Tyler appeared before Circuit Judge Kathleen Panozzo during a routine status hearing. He is charged in the 2005 slaying of Ghada Elayyan in Robbins.

"He was in the back prior to his appearance before the judge, and he was given some lunch and then used the bathroom and used one of the lunch baggies to store the excrement," said Penny Mateck, a spokeswoman for the Cook County sheriff's office.

Assistant State's Atty. Ted Lagerwall, who is handling Tyler's case, said the defendant appeared disheveled when he was led into the courtroom."The judge said, 'Is your name Cornell Tyler?' " Lagerwall said. "He said, 'My name is Self Destruction, but you can call me Smitty—well, I mean [expletive].'

"Tyler then quickly reached down the front of his pants and pulled out the baggie but the deputies beside him pounced on him."In that scuffle, he did throw the excrement toward the front of the courtroom," Mateck said. "The judge was not injured, but unfortunately our deputies were . . . adversely affected."After Tyler was removed, the judge finished the court call in a back hallway.

"The courtroom stunk to high heavens," Lagerwall said. Mateck said charges were expected to be filed next week.

Can Binge Drinking Save Social Security?

Now that I have your attention, I am going to reprint a post (with the same name as this post) from the Freakonomics Blog in its entirety:

"A coalition of college presidents has been pushing states to lower the drinking age as a way to discourage problem drinking on campuses. But here’s one unintended consequence of teaching young people responsible drinking habits: it could make Social Security bankrupt faster.

A 2004 study by Frank Sloan and Jan Ostermann at Duke University found that heavy drinkers contribute slightly more to Social Security, through their higher average lifetime earnings, than nondrinkers do. What’s more, since alcohol abusers tend to die sooner than moderate or nondrinkers, they draw less money, over time, from the Social Security trust fund.

Their conclusion: the elimination of heavy drinking (three or more drinks a day) from each successive group of American 25-year-olds would cost the Social Security trust fund $3 billion over the cohort’s lifetime.

According to the authors:

From the vantage point of society as a whole, heavy drinking redistributes wealth from heavy drinkers to others. Thus, if public health programs were to succeed in reducing the rate of heavy drinking, [Social Security’s] future financial status would be even worse than has been projected.

The study drives home the health cost of irresponsible drinking, but with a twist: in this case, binge drinking can have positive externalities.

On another note, one of the puzzling underlying findings in this paper is the relationship between moderate alcohol consumption and increased lifetime earnings. For men and women alike, people who report downing two or fewer drinks a day earn slightly more than teetotalers do, on average. Heavy alcohol use tends to negatively impact earnings, as you might imagine, but not as much as abstinence. Sloan and Ostermann aren’t clear on the mechanics of this relationship, but the science seems solid."

Interesting analysis.

Wednesday, September 17, 2008

I wonder why they went bankrupt.

I was just reading an interesting piece on the Wall Street Journal Law Blog which speculates that the trustee in Lehman Brothers' historic Chapter 11 bankruptcy filing could could possibly attack the bonuses handed out to Lehman executives over the last year on the ground that they were fraudulent transfers made by an ailing company.

The article reports that Lehman paid about $5.7 billion in executive bonuses last year. The article also states that the bonuses are typically 60% of compensation. After brushing off my high school algebra textbook, I figured that the estimated annual salary in 2007 of Lehman executives was approximately $9.5 billion (I hope that's right). I have absolutely no idea how many "executives" there are at Lehman, but could they even have 500? I have no idea. Reuters states that they had 28,600 total employees worldwide. 500 executives sounds about right. Assuming 500 executives, that means that they each earned approximately $19,000,000 last year!!!!!!!!!!!!!!

That's some major coin. What could they have done to be worth so much money to that company? Probably nothing. You know they just basically took a percentage of everything that came into the company. Maybe if the "executives" hadn't been so greedy, they could have kept drawing more moderate salaries for many years to come. Instead, as soon as they had a bad year, they had to start typing up their resumes.

Wednesday, September 10, 2008

What would the cops actually do?

I missed this case right when it came out, but I was just leafing through the West's Illinois Decisions paperbacks that come out before the hard volume is published, and I came across the blurb about People v. Harris, 2008 WL 733756.

I will quote the case summary from West in its entirety:

"Compliance, by a passenger in a lawfully stopped vehicle, with a police officer's request for identification was voluntary, notwithstanding that the passenger was not free to terminate the encounter. Thus, the request for identification did not violate the passenger's Fourth Amendment rights. In so holding, the Supreme Court found that the request for identification was facially innocuous, and that a reasonable innocent passenger, even upon realizing that the driver of the car in which he had been riding was about to be arrested, would have felt free to decline to provide his driver's license or other identification."

What would a typical police officer do if you refused to provide identification?

You will find out eventually because I guarantee that the next time that I am the passenger in a car I am going to withhold my ID. I might even print out a copy of this Supreme Court opinion for my glove box, not that the typical officer would give that the time of day.

Stay tuned.