When Cops Lock Up Good People (What You Can Do): Five Ways You Can Use People Power to Make a Difference and Help Fight Government Abuse
By Lorgio Coimbra, Esq.
Recently, we all learned about the abominable incident of the cop arresting a firefighter who was simply doing his job. It’s a particularly repugnant act given that we look to firefighters to save us from emergency situations like a fire or other life-threatening contretemps. Similar news items are become more commonplace. “Rogue” cops locking up people on extremely questionable grounds. However, even the term “rogue” is growing to be an anachronism as these incidents become the new normal. Outright unconstitutional searches, seizures and arrests. Equally unfortunate is the feeling of despair and helplessness that citizens experience when they continue to see these things happen. There is a feeling that personal liberty (and freedom from law enforcement abuses) is under assault and that we are declining into a police state. It can be demoralizing, understandably.
Don’t lose hope. You have far more civic power than you realize. Here are a few things you can do to ramp up your public participation and raise the spotlight with the hope of countering this tide of unchecked police power.
1. Keep posting on social media.
Much of the way people learn about current events is no longer the traditional so-called cable news outlets, which are accurately perceived as saturated in silly celebrity non-news, political platitudes framed as “op-eds” and even downright propaganda. On the other hand, Instagram, Facebook, Reddit, Twitter and other outlets allow you to digitally disseminate news as it's happening simply by linking it to your wall. It’s a great way to make others aware of these wrongdoings. Every little post that raises awareness is part of the fabric of social mobilization toward justice. And it’s a great way to take advantage of the digital technology available to you.
2. Make sure the politicians hear your voice.
Make sure the politicians know that their jobs are in jeopardy if they continue to be apathetic or indifferent in the face of injustice. You ought to Have readily handy the email, phone number and other contact information of your local councilman, assemblyman, State Senator, US senator and so forth. Circulate online petitions. Change.org is a tremendous resource in this regard. Trust me: politicians act when they think they will be booted from office. If a large number of people demand that something be done about a particular injustice, then the politicians’ selfish interests come into play and many times they will leap into action for the sake of preserving their seat. Regardless of the motivation, they have power and resources at their disposal that average citizens do not. They can deploy government resources to launch criminal investigations on cops who abuse their power. Obviously, this does not always work, as highlighted by the acquittal of the police officers accused of having killed Kelly Thomas. However, there are many other counter-examples where cops are brought to justice for their crimes.
3. Know a good lawyer and have his number at ALL TIMES.
A California criminal defense lawyer who also does police misconduct cases can help bring justice and help remedy the situation. The Coimbra Law Firm routinely handles criminal defense cases and we represent plaintiffs in police misconduct cases IF your case has good facts that show a clear violation of civil rights. Moreover, we offer free consultations so you have nothing to lose by calling if you think you have a case. Our website is: www.CoimbraLaw.com and our toll free phone number is 1-855-385-5245 (which actually spells out 1-855-FUK-JAIL as an easy way to remember it).
4. Participate in a legal defense fund: Say, your friend or relative or someone you may not personally know but with whom you sympathize is facing an unjust criminal charge and can probably beat the rap with a good lawyer but doesn’t have the money to afford a good one. Small contributions can go a long way. A legal defense fund is a great way for loved ones, friends and concerned citizens to pool their resources together to pitch in for solid legal representation. With an acquittal, the defendant – if he was roughed up by the cops and his civil rights were violated – may be able to pursue a successful civil action against the cops. This has an overall social impact over time because local government gets tired of having to dish out six or seven figure settlements or verdicts for their cops’ rogue actions, forcing them to crack down on police misconduct. Therefore, litigation can be a great engine for social justice.
5. Film cops. You have a First Amendment Right to film the police. Exercise it. It has already been recognized by various appellate courts. Understand there are risks involved, with some overly zealous prosecutors bringing bizarre charges (like “eavesdropping” and “wiretapping”) against people who film the cops, which is outright idiocy. Police observers film cops all the time. And if they arrest you for filming them, you may even have a good false imprisonment civil against them.
A good criminal defense law firm, like the Coimbra Law Firm, can get these absurd charges thrown out and then prosecute the cops in a civil action.
Be creative. Think outside the box. There are so many other great ideas relating to civil participation that many of you have thought of or will come up with. These are all great ways help combat the ongoing war on our Constitution. Bottom line: get involved.
We share your frustration. It is disheartening to see the militarization of our police, who are supposed to protect our citizenry, not antagonize them. So use the democratic tools at your disposal. Years later, you will have yourself and your fellow citizens to thank for a more humane and just society.
(Disclaimer: NOTHING here is legal advice. Nothing on this blog or any other public materials from our firm constitutes legal advice if any kind. If you have a specific case or question, call us at 1-855-385-5245 for a free consultation).
Recently, we all learned about the abominable incident of the cop arresting a firefighter who was simply doing his job. It’s a particularly repugnant act given that we look to firefighters to save us from emergency situations like a fire or other life-threatening contretemps. Similar news items are become more commonplace. “Rogue” cops locking up people on extremely questionable grounds. However, even the term “rogue” is growing to be an anachronism as these incidents become the new normal. Outright unconstitutional searches, seizures and arrests. Equally unfortunate is the feeling of despair and helplessness that citizens experience when they continue to see these things happen. There is a feeling that personal liberty (and freedom from law enforcement abuses) is under assault and that we are declining into a police state. It can be demoralizing, understandably.
Don’t lose hope. You have far more civic power than you realize. Here are a few things you can do to ramp up your public participation and raise the spotlight with the hope of countering this tide of unchecked police power.
1. Keep posting on social media.
Much of the way people learn about current events is no longer the traditional so-called cable news outlets, which are accurately perceived as saturated in silly celebrity non-news, political platitudes framed as “op-eds” and even downright propaganda. On the other hand, Instagram, Facebook, Reddit, Twitter and other outlets allow you to digitally disseminate news as it's happening simply by linking it to your wall. It’s a great way to make others aware of these wrongdoings. Every little post that raises awareness is part of the fabric of social mobilization toward justice. And it’s a great way to take advantage of the digital technology available to you.
2. Make sure the politicians hear your voice.
Make sure the politicians know that their jobs are in jeopardy if they continue to be apathetic or indifferent in the face of injustice. You ought to Have readily handy the email, phone number and other contact information of your local councilman, assemblyman, State Senator, US senator and so forth. Circulate online petitions. Change.org is a tremendous resource in this regard. Trust me: politicians act when they think they will be booted from office. If a large number of people demand that something be done about a particular injustice, then the politicians’ selfish interests come into play and many times they will leap into action for the sake of preserving their seat. Regardless of the motivation, they have power and resources at their disposal that average citizens do not. They can deploy government resources to launch criminal investigations on cops who abuse their power. Obviously, this does not always work, as highlighted by the acquittal of the police officers accused of having killed Kelly Thomas. However, there are many other counter-examples where cops are brought to justice for their crimes.
3. Know a good lawyer and have his number at ALL TIMES.
A California criminal defense lawyer who also does police misconduct cases can help bring justice and help remedy the situation. The Coimbra Law Firm routinely handles criminal defense cases and we represent plaintiffs in police misconduct cases IF your case has good facts that show a clear violation of civil rights. Moreover, we offer free consultations so you have nothing to lose by calling if you think you have a case. Our website is: www.CoimbraLaw.com and our toll free phone number is 1-855-385-5245 (which actually spells out 1-855-FUK-JAIL as an easy way to remember it).
4. Participate in a legal defense fund: Say, your friend or relative or someone you may not personally know but with whom you sympathize is facing an unjust criminal charge and can probably beat the rap with a good lawyer but doesn’t have the money to afford a good one. Small contributions can go a long way. A legal defense fund is a great way for loved ones, friends and concerned citizens to pool their resources together to pitch in for solid legal representation. With an acquittal, the defendant – if he was roughed up by the cops and his civil rights were violated – may be able to pursue a successful civil action against the cops. This has an overall social impact over time because local government gets tired of having to dish out six or seven figure settlements or verdicts for their cops’ rogue actions, forcing them to crack down on police misconduct. Therefore, litigation can be a great engine for social justice.
5. Film cops. You have a First Amendment Right to film the police. Exercise it. It has already been recognized by various appellate courts. Understand there are risks involved, with some overly zealous prosecutors bringing bizarre charges (like “eavesdropping” and “wiretapping”) against people who film the cops, which is outright idiocy. Police observers film cops all the time. And if they arrest you for filming them, you may even have a good false imprisonment civil against them.
A good criminal defense law firm, like the Coimbra Law Firm, can get these absurd charges thrown out and then prosecute the cops in a civil action.
Be creative. Think outside the box. There are so many other great ideas relating to civil participation that many of you have thought of or will come up with. These are all great ways help combat the ongoing war on our Constitution. Bottom line: get involved.
We share your frustration. It is disheartening to see the militarization of our police, who are supposed to protect our citizenry, not antagonize them. So use the democratic tools at your disposal. Years later, you will have yourself and your fellow citizens to thank for a more humane and just society.
(Disclaimer: NOTHING here is legal advice. Nothing on this blog or any other public materials from our firm constitutes legal advice if any kind. If you have a specific case or question, call us at 1-855-385-5245 for a free consultation).
Top Ten New 2014 Laws (and Changes to Laws) in California You NEED To Know About
By The Coimbra Law Firm
While revelers were out blissfully celebrating this New Years Day, many had no clue that a spate of new laws went into effect that same day. Some or many of these laws will have a direct impact on YOU or someone you know. Whether you’re a California driver, job-seeker, start-up entrepreneur, established business owner or simply a California resident, you or a loved one is bound to be affected. The Coimbra Law Firm generously provides us with a brief, easy-to-follow digest that everyone can understand. It behooves YOU to know.
Where the law has merely changed or expanded, you will find “2014 Change.” Otherwise, it’s a new law altogether. Also, many areas which are categorized a particular way may overlap with other areas.
LAWS AFFECTING CALIFORNIA MOTORISTS
1. Search Warrants for DUI Blood Tests
Beware, drunk drivers! Under an amendment (which actually took effect September 20th, 2013) to the criminal statute pertaining to search warrants, police can now ask a judge to issue a search warrant to draw blood from you in a “reasonable, medically-approved manner” to show that you violated California’s DUI laws PROVIDED:
- you refused a police officer’s request to submit to one
- and you failed to complete a blood test.
As you can imagine, this is sure to create many an uncomfortable encounter between motorists and police, particularly where the police accuse the motorist of being recalcitrant and resistant to a chemical test. This likely gives police fodder to conduct a forcible blood draw of a motorist so long as it is under the purview of “reasonable and medically-approved.”
2. “Three Feet for Safety” Act: Bypassing Bicycles
California motorists passing a bike proceeding in the same direction must pass at a distance no less than three (3) feet. In other words, you must give the bicyclist at least three feet of distance when you are maneuvering around him or her....or face a violation carrying a stiff monetary penalty (if a collision ensued from your failure to abide with this new law).
Beware, drunk drivers! Under an amendment (which actually took effect September 20th, 2013) to the criminal statute pertaining to search warrants, police can now ask a judge to issue a search warrant to draw blood from you in a “reasonable, medically-approved manner” to show that you violated California’s DUI laws PROVIDED:
- you refused a police officer’s request to submit to one
- and you failed to complete a blood test.
As you can imagine, this is sure to create many an uncomfortable encounter between motorists and police, particularly where the police accuse the motorist of being recalcitrant and resistant to a chemical test. This likely gives police fodder to conduct a forcible blood draw of a motorist so long as it is under the purview of “reasonable and medically-approved.”
2. “Three Feet for Safety” Act: Bypassing Bicycles
California motorists passing a bike proceeding in the same direction must pass at a distance no less than three (3) feet. In other words, you must give the bicyclist at least three feet of distance when you are maneuvering around him or her....or face a violation carrying a stiff monetary penalty (if a collision ensued from your failure to abide with this new law).
CRIMINAL LAW
3. “Pay Up, Liar!”: Persons Falsely Reporting an Emergency Will Have to Cough Up Restitution for Emergency ServicesCalifornia criminalizes the false reporting of a crime or emergency under California Penal Code Section 148.3. Prosecutors can prosecute this crime as a misdemeanor and, in some instances, a felony if the false report was likely to cause or caused great bodily injury or death.
2014 CHANGE:
In addition to the usual criminal penalties (which can include California State Prison for a felony conviction), the court can now tack on hefty restitution for “costs of...emergency response.” Cal. Pen. Code Section 148.3(e).
4. The Infamous “Paparazzi Law”
Many cynical observers believed this law was a suck-up to Hollywood by sycophantic and cowardly legislators. Whatever the motivation, it is now law and California residents, most notably the “paparazzi,” have to live with it.
Existing law, California Penal Code Section 11414, criminalizes harassing a child because of his or her employment. So, for example, if a photographer or “celebrity journalist” goes up to the son or daughter of XYZ celebrity and harangues him or her about his famous mom or dad, a prosecutor can levy a criminal misdemeanor charge against him.
2014 CHANGE:
The bill increases existing penalties to:
- up to one year in the county jail
- a fine of up to $10,000......OR BOTH!!
A second conviction can land the offender in jail for no less than 5 days and up to one year in jail and a fine of up to $20,000.
A third conviction can result in a $30,000 penalty and/or incarceration for up to one year (and no less than 30 days!)
BUSINESS LAW: Changes Affecting Certain Small Business Owners
5: Tattoo Artists: Expansion of the Safe Body Art Act.
The California Health and Safety Code regulates the application of body art, such as piercing, tattooing, branding and the application of permanent cosmetics via the “Safe Body Art Act.” (California Health and Safety Code Sections 119300-119328). Tattoo artists and other practitioners of “body art” have to register with a local law enforcement agency and their facilities have to meet requirements set out in the Act.
2014 CHANGE:
It is now illegal to perform body art at an “unpermitted location.” Violation of this or any other part of the Health and Safety Code Section 119323 constitutes a misdemeanor crime.
In addition, the amended law tacks on MORE requirements, like the disposal of “sharps waste,” compliance with the Healthy Insurance Portability and Accountability Act (or HIPAA) and “similar state laws.”
6: Limousine Businesses:
Senate Bill 109 requires limo drivers to unlock the doors on their limos in the event of an emergency. The limo owner or operators is required to give instructions to all passengers regarding safety features of the limousine and to disclose whether the vehicle meets all current safety requirements.
There are other provisions as well, including those concerning emergency exist which apply to limos extended or modified on or after July 1st, 2015. However, as of January 1st, 2016, these provisions will apply to all limousines (modified or extended to add length).
LABOR LAW
7. Employment Applications: Limitations on When Public Agencies Can Ask About Your Criminal RecordIf you are a job applicant, it’s already illegal for a public or private employer to ask you, to reveal, orally or in writing, information regarding an arrest or detention you sustained that did not result in a conviction.
The California Legislature enacted California Labor Code Section 432.9, to take effect July 1st, 2014, forbidding a state or local agency from asking you to reveal information about a criminal conviction UNTIL that agency has made the determination that you met the minimal job qualifications. There are exceptions, of course, but that is the new general rule.
8. Employment Applications of Ex-Convicts Whose Cases Were Expunged or Who Underwent Diversion
Pursuant to existing law, California employers are barred from asking a job applicant about convictions that were expunged under California’s “Expungement Law.”
2014 CHANGE:
No employer, regardless of whether it is a public or private entity, can ask a job applicant to reveal information about a conviction that was judicially dismissed or which the court ordered sealed OR who was referred to and participated in any pretrial or even post-trial diversion program.
This is the new “general rule” and there are exceptions.
IMMIGRATION
9. Driver’s Licenses for Undocumented Immigrants:In a move that generated much controversy, particularly among those vehemently opposed to illegal immigration, the California Legislature authorized the issuance of California Driver’s Licenses for”person[s]...unable to submit satisfactory proof of...presence in the [United States]...authorized under federal law] PROVIDED THAT meets all other qualifications and proof of identity and residency in California.
As you can imagine, the “proof of identity” may open the door to fraud if applicants misrepresent their identity on paper. It awaits to be seen how this will play out.
In spite of perceived drawbacks or problems, the issuance of driver’s licenses to undocumented immigrants may actually help protect US citizens and lawful permanent residents who are driving and are involved in a collision with motorists who were previously unlicensed. This is because California drivers are required to be insured. Thus, it brings undocumented immigrants into the wider pool of motorists who are legally required to exercise responsibility via registration and proof of insurance.
The bill goes into effect January 1st, 2015, although that date may be accelerated if the DMV Director “executes a specified declaration.”
10. Unauthorized Practice of Law
We are including this one here because the legislation arose under the looming prospect of federal immigration reform and the opportunism of criminals, paralegals, “notarios” and other non-lawyers to prey on the undocumented immigrant community by posing as “lawyers.” It is a now a misdemeanor crime to literally translate from English to Spanish or another language, in any document (like letterhead, a business card or an advertisement) that a person is a lawyer who is not, in fact, a lawyer. The State Bar can also bring a civil action and recover hefty penalties (i.e., at $1,000 for every day this law is violated!).
WE CAN HELP YOU: 1-855-385-5245 (TOLL FREE CALL)
Los Angeles Lawyer Lorgio Coimbra is the Winner of Pasadena Magazine's 2013 Award for Top Attorney. He is also the Winner of Excellence in Constitutional Law and Legal Analysis and Writing. The Coimbra Law Firm can represent you if you are facing criminal charges. We can assist you in other areas as well, including employment law and business law.
Call us at 1-855-385-5245 or visit us at www.CoimbraLaw.com if you have questions or would like to schedule a consultation. Free initial consultations available.
Disclaimer: Nothing in this article or anywhere on this blog constitutes legal advice of any kind. Picture(s) above are featured for illustrative purposes only and is/are no reflection on the person(s) depicted whatsoever. Attorney licensed in the State of California and, therefore, accepts California cases only.
How Does "Self-Defense" Work as a Legal Defense in California?
Self-defense is an “affirmative defense” in California. That means that you are not disputing the facts underlying the accusation. Rather, you are asserting that you had a legal justification for carrying out the act for which you are now criminally charged. Successfully demonstrated, the defense will completely absolve you of the crime.
It is important to note that, for this defense to be effective, you must have acted reasonably under the circumstances. In other words, you are required to have
held a reasonable belief that you were in impending peril of death, serious bodily injury or an unlawful touching
held a reasonable belief that it was necessary that you employ force to prevent this harm from occurring
and
that you used only that force which was necessary to prevent the harm from occuring
You are not required to “retreat” in the face of the aforementioned peril. Many states have a codified “stand your ground;” however, our “stand your ground” law is embedded in our common law and existing statutory framework. You do not have to run away in the face of danger. You are legally justified in confronting credible and immediate threats of harm to your person.
A California criminal defendant can assert “self-defense” against a wide array of California criminal charges, including, but not necessarily limited to, assault, battery, assault with a deadly weapon or other aggravated battery, murder and rape.
Let’s look at a few target examples of how self-defense is used as a California legal defense:
Jane is walking out to her car in a parking lot late at night when she is accosted by a man with a gun. What the man doesn’t realize is that Jane is “packing heat.” She swiftly and stealthily takes a gun out of her purse and shoots the man, who dies. Jane was acting in self-defense and used lethal force against a lethal threat. She was legally justified in killing the man who accosted her. Accordingly, he should be acquitted of murder, i.e., the alleged California Penal Code Section 187 violation.
Bob is withdrawing money from his ATM when he is suddenly approached by Mike Mugger, who represents having a loaded firearm. Bob violently elbows Mike in the face when the latter looks over his shoulder to see if anyone is coming. Mike suffers severe cranial injuries. Bob was justified in doing what he needed to do to prevent potentially lethal injury to himself. Bob will likely be acquitted of aggravated battery under California Penal Code Section 243(d).
Slightly inebriated, Jeremy is somewhat rambunctious and unruly in his behavior. An off-duty cop, Grimace, approaches Jeremy and initiates a stop-and-frisk and, very quickly thereafter, an arrest for drunk in public. Grimace is inordinately aggressive and even puts Jeremy in a chokehold. Infuriated at this unjustified level of force, Jeremy manages to extricate himself from the potentially-lethal maneuver, punches Grimace in the face and subdues him. Jeremy is charged with battery on a peace officer under California Penal Code Section 243(b). Jeremy’s West Covina criminal defense attorney, however, successfully argues that Jeremy was using that force which was reasonable under the circumstances in order to protect himself against great bodily injury arising out of the off-duty cop’s use of excessive force.
Vivien is at a Halloween party. Herbert sees her and is enticed by her. He approaches her and begins to put his hands on her body. He is about to put his hands into her underwear to reach for her vagina when she violently punches him on the chest, causing Herbert to fall down and sustain substantial bodily harm. Vivien was within her legal right to use force to stave off the sexual assault.
If you or a loved one are experiencing a criminal investigation, or you have been arrested and/or charged with a crime in California, our West Covina criminal defense law firm is available to receive your call at 1-855-FUK-JAIL (1-855-385-5245). We invite you to call us to set up your free consultation.
To help you, the reader, get a full grasp or comprehension of self-defense in California, our West Covina criminal defense lawyers will now go through the intricacies and ins and outs California self-defense.
1. What is the Definition of Self-Defense in California?
If the prosecutor filed a criminal charge against you, you may be able to assert “self-defense” to seek a dismissal or acquittal of your charge.
For you to be able to avail yourself of self-defense as a defense, you have to prove the following:
When you committed the alleged crime, you harbored a reasonable belief that you were facing imminent harm of death, serious bodily injury or an unlawful touching;
You harbored the reasonable belief that you had to use force in order to prevent the harm from occurring;
and you used more force than was necessary to stave off the harm
It should be noted that the prosecutor has the burden of proving all of these elements. So if the evidence could show that you acted in self-defense, then the prosecution must demonstrate that self-defense is inapplicable in your case.
The prosecutor must prove this beyond a reasonable doubt.
Let’s examine the terms used in these “elements” to get a better understanding of whether or not self-defense could apply in your case.
a. Threat of Imminent Danger
In order for you to avail yourself of self-defense, you must demonstrate that you were about to suffer death, bodily injury, sexual assault or some other harmful or unlawful touching. Further, you must show you were in imminent danger of suffering one or more of these things.
If you feared some future harm, you did not have legal justification to act in self-defense. Why? Because, again, you must been under threat of imminent danger in order to use force.
Let’s use an example:
Armand and Buck are dating. Their relationship is initially fraught with gentleness, romance and mutual affection. However, as time goes on, Armand becomes more abusive, possessive and domineering. One evening, Armand and Buck are dining out a restaurant when Buck excuses himself from the table to go to the bathroom. In fact, he uses the time to talk on the payphone with someone else. Armand is already behaving in a jealous and possessive manner because Buck is wearing a provocative low-cut red cocktail dress with sequins. Armand, thinking Buck is taking too long, goes to seek out Buck and becomes incensed when he sees him on the phone, presumably talking to another man. Armand violently assaults Buck with the phone, humiliating him in front of the horrified guests.
Later, as they are driving home and Buck is writhing in pain, Buck conjures up the mental fortitude to kill Armand while the latter is sleeping. Sure enough, several hours later while the both are asleep, Buck very quietly wakes up, takes his pillow and smothers Armand with it. Armand adamantly resists Buck but succumbs to the smothering. He suffocates and dies. Buck is charged with murder.
Buck alleges self-defense. However, this will not be an effective defense because, although he was the victim of Armand’s brutal assault, the threat of continued or imminent harm had completely subsided, such that Buck was under no threat of immediate harm at the time he killed Armand.
HOWEVER,
Let’s change the facts slightly and say that, while Armand is hitting with Buck with the phone (thwacking him so hard he is spitting and spluttering blood), Buck takes out a switchblade from his purse and stabs Armand, cutting him so bad that he dies. Then, Buck may successfully argue he acted in self-defense because he was under imminent threat of death or serious bodily injury.
b. Death, serious bodily harm or harmful/offensive touching
To effectively use self-defense as your legal defense to a murder charge, you must have been defending yourself against a crime which was “forcible and atrocious” in nature.
These include: battery which could cause you to suffer severe bodily harm, rape, mayhem, robbery, murder (or other homicide, i.e., manslaughter).
In order to use lethal force against another person, that person must have presented the immediate threat of carrying out one of these “forcible and atrocious” offenses.
However, if the alleged victim presented a threat of non-lethal force (for example, a misdemeanor battery), you cannot have used lethal force. Your force must be measured under the circumstances, that is, it must match the force you were facing.
Thus, if someone is about to take a swing at you (Penal Code Section 242 PC – Battery), you have the right to use reasonable, non-deadly force to thwart the attack.
Luther is at a nightclub and makes eye contact with an attractive and buxom blonde in a satin blue dress, who reciprocates Luther’s flirtatiousness. The blonde’s jealous boyfriend, Hector, sees this and becomes irate. Luther sees Hector coming at him, about to take a swing at him, when Luther zaps Hector with a cattle prod. Hector falls to the ground, goes into a convulsive fit and dies.
With these facts, Luther had the right to use non-lethal force to defend himself; he did NOT have the right to use LETHAL force against an imminent battery as presented here.
c. Harboring a reasonable belief in a threat
To successfully assert self-defense, you must have held an honest, good faith and reasonable belief that you were under threat of impending harm and that you needed to use force to prevent that harm from befalling you.
To determine whether or not your belief was reasonable, the trier of fact (jury – or a judge in a bench trial) must use something called the “objective standard.” This means that the jury must ask itself: “would a reasonable person standing in the shoes of the accused have believed he was in danger of imminent attack?” If the answer is yes, then you should be acquitted provided that the force you used was reasonable under the circumstances.
If the belief was unreasonable, for example, due to paranoia, phobia or other mental illness, you will not be able to successfully assert self-defense.
Let’s stay that Ronnie Roommate is bunking with two other alumni in a college dormitory. Ronnie suffers from paranoid schizophrenia, which causes him to hear voices which aren’t there. One of those voices tells him that his roommates are conspiring to kill him in his sleep. One night, when his roommates are asleep, Ronnie wakes up and stabs them to death. Ronnie is arrested and tried for murder; he claims self-defense. The jury believes that he did not harbor a reasonable belief that he was under imminent threat of death or serious bodily injury. Ronnie may have held a subjectively good faith belief that his roommates were plotting his demise; but, again, the test is objective, NOT subjective.
Ronnie is thereafter convicted and sentenced to die by lethal injection.
Battered Wife Syndrome
While it is true that paranoia or other mental illness will preclude you from successfully asserting self-defense (as in the above example with Ronnie), a defendant accused of murder or manslaughter in California may be able to assert self-defense if s/he suffered from“battered woman’s syndrome.” Women, as well as men, involved in relationships marked with prolonged and repeated episodes of domestic violence can assert this defense. If you are accused of murder or manslaughter and you suffered from battered wife or battered woman’s syndrome, your California criminal defense attorney will ask the jury to consider it’s effects on you. In making this consideration, the jury will determine whether or not you acted reasonably under the circumstances. In other words, the jury will have to decide: “would a reasonable person suffering from battered wife syndrome have acted the same way?”
Let’s go back to the above example with Armand and Buck. As stated before, their relationship was initially amorous but (as alluded to earlier) it devolved into violence and hate when Armand became possessive and controlling. One night, Armand and Buck having dinner at a fancy restaurant, Buck excuses himself from the table to go to the bathroom. In fact, he uses the time to talk on the payphone (since he does not have any privacy at home). Armand is already experiencing jealousy because Buck is wearing a provocative low-cut sequined red cocktail dress, (which he thinks is causing other men to lure at Buck). Armand finds Buck on the phone and becomes irate because he presumes he is talking to another man. Armand violently assaults Buck with the phone, humiliating him in front of the horrified guests. After years of this kind of violence, Buck decides he has had enough and kills Armand later that night.
Although it was stated earlier that Buck was not in imminent threat of harm when he killed Armand (and thus has no valid “self-defense” claim), Buck may still be able to obtain an acquittal if his criminal defense attorney can successfully argue that Buck was suffering from battered wife syndrome. Years of humiliating, degradation and misery stemming from protracted domestic abuse (at Armand’s hands) culminated in Buck believing he “could not take it anymore.”
If you or a loved one are experiencing a criminal investigation, or you have been arrested and/or charged with a crime in California, our West Covina criminal defense law firm is available to receive your call at 1-855-385-5245. We invite you to call us to set up your free consultation.
Copyright © 2013 – The Coimbra Law Firm – San Gabriel Valley Criminal Defense Attorney, San Gabriel Valley DUI Defense Attorney – All rights reserved. Any unauthorized reproduction without the explicit written consent of the author is prohibited, constitutes copyright infringement and may result in civil liability. Nothing in the aforementioned constitutes legal advice of any kind.
It is important to note that, for this defense to be effective, you must have acted reasonably under the circumstances. In other words, you are required to have
held a reasonable belief that you were in impending peril of death, serious bodily injury or an unlawful touching
held a reasonable belief that it was necessary that you employ force to prevent this harm from occurring
and
that you used only that force which was necessary to prevent the harm from occuring
You are not required to “retreat” in the face of the aforementioned peril. Many states have a codified “stand your ground;” however, our “stand your ground” law is embedded in our common law and existing statutory framework. You do not have to run away in the face of danger. You are legally justified in confronting credible and immediate threats of harm to your person.
A California criminal defendant can assert “self-defense” against a wide array of California criminal charges, including, but not necessarily limited to, assault, battery, assault with a deadly weapon or other aggravated battery, murder and rape.
Let’s look at a few target examples of how self-defense is used as a California legal defense:
Jane is walking out to her car in a parking lot late at night when she is accosted by a man with a gun. What the man doesn’t realize is that Jane is “packing heat.” She swiftly and stealthily takes a gun out of her purse and shoots the man, who dies. Jane was acting in self-defense and used lethal force against a lethal threat. She was legally justified in killing the man who accosted her. Accordingly, he should be acquitted of murder, i.e., the alleged California Penal Code Section 187 violation.
Bob is withdrawing money from his ATM when he is suddenly approached by Mike Mugger, who represents having a loaded firearm. Bob violently elbows Mike in the face when the latter looks over his shoulder to see if anyone is coming. Mike suffers severe cranial injuries. Bob was justified in doing what he needed to do to prevent potentially lethal injury to himself. Bob will likely be acquitted of aggravated battery under California Penal Code Section 243(d).
Slightly inebriated, Jeremy is somewhat rambunctious and unruly in his behavior. An off-duty cop, Grimace, approaches Jeremy and initiates a stop-and-frisk and, very quickly thereafter, an arrest for drunk in public. Grimace is inordinately aggressive and even puts Jeremy in a chokehold. Infuriated at this unjustified level of force, Jeremy manages to extricate himself from the potentially-lethal maneuver, punches Grimace in the face and subdues him. Jeremy is charged with battery on a peace officer under California Penal Code Section 243(b). Jeremy’s West Covina criminal defense attorney, however, successfully argues that Jeremy was using that force which was reasonable under the circumstances in order to protect himself against great bodily injury arising out of the off-duty cop’s use of excessive force.
Vivien is at a Halloween party. Herbert sees her and is enticed by her. He approaches her and begins to put his hands on her body. He is about to put his hands into her underwear to reach for her vagina when she violently punches him on the chest, causing Herbert to fall down and sustain substantial bodily harm. Vivien was within her legal right to use force to stave off the sexual assault.
If you or a loved one are experiencing a criminal investigation, or you have been arrested and/or charged with a crime in California, our West Covina criminal defense law firm is available to receive your call at 1-855-FUK-JAIL (1-855-385-5245). We invite you to call us to set up your free consultation.
To help you, the reader, get a full grasp or comprehension of self-defense in California, our West Covina criminal defense lawyers will now go through the intricacies and ins and outs California self-defense.
1. What is the Definition of Self-Defense in California?
If the prosecutor filed a criminal charge against you, you may be able to assert “self-defense” to seek a dismissal or acquittal of your charge. 
For you to be able to avail yourself of self-defense as a defense, you have to prove the following:
When you committed the alleged crime, you harbored a reasonable belief that you were facing imminent harm of death, serious bodily injury or an unlawful touching;
You harbored the reasonable belief that you had to use force in order to prevent the harm from occurring;
and you used more force than was necessary to stave off the harm
It should be noted that the prosecutor has the burden of proving all of these elements. So if the evidence could show that you acted in self-defense, then the prosecution must demonstrate that self-defense is inapplicable in your case.
The prosecutor must prove this beyond a reasonable doubt.
Let’s examine the terms used in these “elements” to get a better understanding of whether or not self-defense could apply in your case.
a. Threat of Imminent Danger
In order for you to avail yourself of self-defense, you must demonstrate that you were about to suffer death, bodily injury, sexual assault or some other harmful or unlawful touching. Further, you must show you were in imminent danger of suffering one or more of these things.
If you feared some future harm, you did not have legal justification to act in self-defense. Why? Because, again, you must been under threat of imminent danger in order to use force.
Let’s use an example:
Armand and Buck are dating. Their relationship is initially fraught with gentleness, romance and mutual affection. However, as time goes on, Armand becomes more abusive, possessive and domineering. One evening, Armand and Buck are dining out a restaurant when Buck excuses himself from the table to go to the bathroom. In fact, he uses the time to talk on the payphone with someone else. Armand is already behaving in a jealous and possessive manner because Buck is wearing a provocative low-cut red cocktail dress with sequins. Armand, thinking Buck is taking too long, goes to seek out Buck and becomes incensed when he sees him on the phone, presumably talking to another man. Armand violently assaults Buck with the phone, humiliating him in front of the horrified guests.
Later, as they are driving home and Buck is writhing in pain, Buck conjures up the mental fortitude to kill Armand while the latter is sleeping. Sure enough, several hours later while the both are asleep, Buck very quietly wakes up, takes his pillow and smothers Armand with it. Armand adamantly resists Buck but succumbs to the smothering. He suffocates and dies. Buck is charged with murder.
Buck alleges self-defense. However, this will not be an effective defense because, although he was the victim of Armand’s brutal assault, the threat of continued or imminent harm had completely subsided, such that Buck was under no threat of immediate harm at the time he killed Armand.
HOWEVER,
Let’s change the facts slightly and say that, while Armand is hitting with Buck with the phone (thwacking him so hard he is spitting and spluttering blood), Buck takes out a switchblade from his purse and stabs Armand, cutting him so bad that he dies. Then, Buck may successfully argue he acted in self-defense because he was under imminent threat of death or serious bodily injury.
b. Death, serious bodily harm or harmful/offensive touching
To effectively use self-defense as your legal defense to a murder charge, you must have been defending yourself against a crime which was “forcible and atrocious” in nature.
These include: battery which could cause you to suffer severe bodily harm, rape, mayhem, robbery, murder (or other homicide, i.e., manslaughter).
In order to use lethal force against another person, that person must have presented the immediate threat of carrying out one of these “forcible and atrocious” offenses.
However, if the alleged victim presented a threat of non-lethal force (for example, a misdemeanor battery), you cannot have used lethal force. Your force must be measured under the circumstances, that is, it must match the force you were facing.
Thus, if someone is about to take a swing at you (Penal Code Section 242 PC – Battery), you have the right to use reasonable, non-deadly force to thwart the attack.
Luther is at a nightclub and makes eye contact with an attractive and buxom blonde in a satin blue dress, who reciprocates Luther’s flirtatiousness. The blonde’s jealous boyfriend, Hector, sees this and becomes irate. Luther sees Hector coming at him, about to take a swing at him, when Luther zaps Hector with a cattle prod. Hector falls to the ground, goes into a convulsive fit and dies.
With these facts, Luther had the right to use non-lethal force to defend himself; he did NOT have the right to use LETHAL force against an imminent battery as presented here.
c. Harboring a reasonable belief in a threat
To successfully assert self-defense, you must have held an honest, good faith and reasonable belief that you were under threat of impending harm and that you needed to use force to prevent that harm from befalling you.
To determine whether or not your belief was reasonable, the trier of fact (jury – or a judge in a bench trial) must use something called the “objective standard.” This means that the jury must ask itself: “would a reasonable person standing in the shoes of the accused have believed he was in danger of imminent attack?” If the answer is yes, then you should be acquitted provided that the force you used was reasonable under the circumstances.
If the belief was unreasonable, for example, due to paranoia, phobia or other mental illness, you will not be able to successfully assert self-defense.
Let’s stay that Ronnie Roommate is bunking with two other alumni in a college dormitory. Ronnie suffers from paranoid schizophrenia, which causes him to hear voices which aren’t there. One of those voices tells him that his roommates are conspiring to kill him in his sleep. One night, when his roommates are asleep, Ronnie wakes up and stabs them to death. Ronnie is arrested and tried for murder; he claims self-defense. The jury believes that he did not harbor a reasonable belief that he was under imminent threat of death or serious bodily injury. Ronnie may have held a subjectively good faith belief that his roommates were plotting his demise; but, again, the test is objective, NOT subjective.
Ronnie is thereafter convicted and sentenced to die by lethal injection.
Battered Wife Syndrome
While it is true that paranoia or other mental illness will preclude you from successfully asserting self-defense (as in the above example with Ronnie), a defendant accused of murder or manslaughter in California may be able to assert self-defense if s/he suffered from“battered woman’s syndrome.” Women, as well as men, involved in relationships marked with prolonged and repeated episodes of domestic violence can assert this defense. If you are accused of murder or manslaughter and you suffered from battered wife or battered woman’s syndrome, your California criminal defense attorney will ask the jury to consider it’s effects on you. In making this consideration, the jury will determine whether or not you acted reasonably under the circumstances. In other words, the jury will have to decide: “would a reasonable person suffering from battered wife syndrome have acted the same way?”
Let’s go back to the above example with Armand and Buck. As stated before, their relationship was initially amorous but (as alluded to earlier) it devolved into violence and hate when Armand became possessive and controlling. One night, Armand and Buck having dinner at a fancy restaurant, Buck excuses himself from the table to go to the bathroom. In fact, he uses the time to talk on the payphone (since he does not have any privacy at home). Armand is already experiencing jealousy because Buck is wearing a provocative low-cut sequined red cocktail dress, (which he thinks is causing other men to lure at Buck). Armand finds Buck on the phone and becomes irate because he presumes he is talking to another man. Armand violently assaults Buck with the phone, humiliating him in front of the horrified guests. After years of this kind of violence, Buck decides he has had enough and kills Armand later that night.
Although it was stated earlier that Buck was not in imminent threat of harm when he killed Armand (and thus has no valid “self-defense” claim), Buck may still be able to obtain an acquittal if his criminal defense attorney can successfully argue that Buck was suffering from battered wife syndrome. Years of humiliating, degradation and misery stemming from protracted domestic abuse (at Armand’s hands) culminated in Buck believing he “could not take it anymore.”
If you or a loved one are experiencing a criminal investigation, or you have been arrested and/or charged with a crime in California, our West Covina criminal defense law firm is available to receive your call at 1-855-385-5245. We invite you to call us to set up your free consultation.
Copyright © 2013 – The Coimbra Law Firm – San Gabriel Valley Criminal Defense Attorney, San Gabriel Valley DUI Defense Attorney – All rights reserved. Any unauthorized reproduction without the explicit written consent of the author is prohibited, constitutes copyright infringement and may result in civil liability. Nothing in the aforementioned constitutes legal advice of any kind.
Five People Interested in Your Facebook Profile and Wall Postings (That You Don’t Want Looking)(And Tips to Guard Your Information ▼)
In our Orwellian age of government and corporate incursion into our electronic and digital communications, privacy has become a precious commodity, if not an all-out luxury. Over the years, many people have complained about the inadequacy of Facebook’s privacy settings and how they do not always curb others’ ability to view wall postings, including people with whom you have no desire to share information. Here are five people who commonly seek to view your Facebook profile and the potential legal repercussions with each one.
1. Your Boss
With the prevalence of social media and other ubiquitous digital distractions, it’s understandable that employers will want to ensure the productivity of their workers. After all, barring the “social media marketing companies,” most employers are not paying their employees to sit around and send tweets or post pictures on Facebook, at least not for personal reasons.
However, some employers exceed the legally-acceptable boundaries of appropriate policing of their employees’ social media activity. This includes asking their employees to reveal their passwords. (Some bosses or managers even retaliate against their employees by firing them for posting certain content). And you might be asking...is any of this legal?
Under California Labor Code Section 980 prohibits, a California employer is prohibited from asking a job applicant or employee to:
a) reveal his or her username or password so the employer can gain access to a personal social media account;
b) access a personal Facebook, Twitter or other social media account in the employer’s presence; or
c) reveal the contents of one’s personal social media account.
(Note: “Social media” also includes text messages and e-mails).
However, an employer can do the following:
ask the employee to allow the employer access to an employer-issued digital device
ask the employee to disclose personal social media if relevant to a formal investigation
send an employee “friend request”
More prohibitions on creepy employer behavior regarding your social media...
Your employer cannot prohibit you from discussing work conditions, such as wages, hours or other terms or conditions of employment, with other employees in a confidential or non-public social media setting. For example, chatting on Facebook, sending each other messages via instant messenger, texting each other or posting on each other’s Facebook walls is protected conduct even if the content is derogatory or pejorative as regards the employer as long as it’s related to the above (work conditions). (However, except in perhaps very limited circumstances, bashing the employer’s product or services is not protected). An experienced employment lawyer can help you understand your California labor rights and get you monetary compensation if your boss has violated them.
2. Creditors
As millions of debtors have fallen behind on their credit card and other bills in the recent years, collection efforts and creditor-on-debtor lawsuits have become more and more common. One way creditors try to obtain information about their debtors (regarding assets, ability to pay back the debt, employer information, etc.) is, obviously, social media. Collection agencies are aware of how oblivious or even reckless many people can be with their privacy and the information they share. Social media users will often freely disseminate details about their work and personal lives.
Be mindful that this kind of nonchalant posting of personal information will not go unnoticed by predatory creditors and collection agents. If you have defaulted on your loans or credit cards, and you posted the name of the company you work for, don’t be surprised to receive a call at your place of work after a collection agency has figured out the identity of your employer by looking at your Facebook wall. Granted, you have the right not to receive such calls but it would still behoove you to be reasonably guarded about your private life, right?
3. Law Enforcement
It has never been easier for local, state and federal authorities to police the public. On a more controversial note, the so-called National Security Agency (NSA) and other domestic spying organizations appear to have almost unfettered access to Americans’ private digital information and communications. The bottom line is this: you are being watched.
Police agencies across the United States have caught and continue catching people with open bench and arrest warrants and picking them up by tracking their whereabouts via social media. Also, many social media users post braggadocio about their exploits, some of them not-so-legal. This includes posing with drug paraphernalia, drinking alcohol (illegal if you’re a minor), posing with weapons or flashing gang signs and insignia (which can come in handy for prosecutors when they are prosecuting or trying a gang-related offense), admitting or confessing to a crime, or engaging in other ill-advised behavior.
Under the Fifth Amendment to the US Constitution, you have the right to refrain from self-incrimination. In this surreal era of ubiquitous police surveillance, it would be wise to exercise that right.
4. Financial Scammers
It is easier than ever for hackers and financial criminals to perpetrate identity theft, credit card fraud or other financial crimes given the easy access people unwittingly give them via Facebook, Twitter and other resources. You can be sure predatory financial sociopaths are on the prowl for your personal information, including your full name, birthday and mother’s maiden name, all of which are available online if you post your actual full name, your real birth date and have your mother as your Facebook friend (using her maiden name).
It is not outside the realm of possibility for burglars who have been staking your house to use your Facebook posts or Twitter feed to track your every move. “I’m at the ball game” or “I’ll be on vacation the next two weeks” are great tip-offs for criminals who will seek to take advantage of this information to burgle your house.
Don’t be stupid. Be discriminating with what you choose to reveal online.
5. Stalkers
Cyberstalking is a criminal offense in California and carry severe criminal repercussions for people engaging in repeated, unsolicited, unwanted digital communications. California Penal Code Section 646.9. Related crimes include criminal threats under California Penal Code Section 422 and statutes relating to domestic violence.
Our firm both prosecutes cyberstalkers in a civil setting (restraining order and/or civil suit for monetary damages) and defends persons who have been wrongfully accused of cyberstalking.
Be mindful of your:
password
birthdate
employer information
privacy settings
mother’s maiden name
social security
address
These things may seem like common sense but they are often forgotten given how busy people are with their daily lives. Taking the necessary precautions can prevent creepy stalkers and hackers, as well as nosy employers and abusively intrusive law enforcement personnel, from gaining access to your personal information through your online profile.
The Coimbra Law Office is a full-service firm with an emphasis on Criminal Defense and Civil Litigation. Call us at 1-855-325-5245 or visit us at CoimbraLaw.com if you have questions or would like to schedule a consultation. Free initial consultations available.
Disclaimer: Nothing in this article or anywhere on this blog constitutes legal advice of any kind. Pictures above are featured for illustrative purposes only and are no reflection on the person depicted whatsoever. Attorney licensed in the State of California and, therefore, accepts California cases only.
1. Your Boss
With the prevalence of social media and other ubiquitous digital distractions, it’s understandable that employers will want to ensure the productivity of their workers. After all, barring the “social media marketing companies,” most employers are not paying their employees to sit around and send tweets or post pictures on Facebook, at least not for personal reasons.
However, some employers exceed the legally-acceptable boundaries of appropriate policing of their employees’ social media activity. This includes asking their employees to reveal their passwords. (Some bosses or managers even retaliate against their employees by firing them for posting certain content). And you might be asking...is any of this legal?
Under California Labor Code Section 980 prohibits, a California employer is prohibited from asking a job applicant or employee to:
a) reveal his or her username or password so the employer can gain access to a personal social media account;
b) access a personal Facebook, Twitter or other social media account in the employer’s presence; or
c) reveal the contents of one’s personal social media account.
(Note: “Social media” also includes text messages and e-mails).
However, an employer can do the following:
ask the employee to allow the employer access to an employer-issued digital device
ask the employee to disclose personal social media if relevant to a formal investigation
send an employee “friend request”
More prohibitions on creepy employer behavior regarding your social media...
Your employer cannot prohibit you from discussing work conditions, such as wages, hours or other terms or conditions of employment, with other employees in a confidential or non-public social media setting. For example, chatting on Facebook, sending each other messages via instant messenger, texting each other or posting on each other’s Facebook walls is protected conduct even if the content is derogatory or pejorative as regards the employer as long as it’s related to the above (work conditions). (However, except in perhaps very limited circumstances, bashing the employer’s product or services is not protected). An experienced employment lawyer can help you understand your California labor rights and get you monetary compensation if your boss has violated them.
2. Creditors
As millions of debtors have fallen behind on their credit card and other bills in the recent years, collection efforts and creditor-on-debtor lawsuits have become more and more common. One way creditors try to obtain information about their debtors (regarding assets, ability to pay back the debt, employer information, etc.) is, obviously, social media. Collection agencies are aware of how oblivious or even reckless many people can be with their privacy and the information they share. Social media users will often freely disseminate details about their work and personal lives.
Be mindful that this kind of nonchalant posting of personal information will not go unnoticed by predatory creditors and collection agents. If you have defaulted on your loans or credit cards, and you posted the name of the company you work for, don’t be surprised to receive a call at your place of work after a collection agency has figured out the identity of your employer by looking at your Facebook wall. Granted, you have the right not to receive such calls but it would still behoove you to be reasonably guarded about your private life, right?
 |
| Social media voyeurism is real. Unsolicited or unwanted viewing of your social media profile can feel like someone is watching you in the shower. |
It has never been easier for local, state and federal authorities to police the public. On a more controversial note, the so-called National Security Agency (NSA) and other domestic spying organizations appear to have almost unfettered access to Americans’ private digital information and communications. The bottom line is this: you are being watched.
Police agencies across the United States have caught and continue catching people with open bench and arrest warrants and picking them up by tracking their whereabouts via social media. Also, many social media users post braggadocio about their exploits, some of them not-so-legal. This includes posing with drug paraphernalia, drinking alcohol (illegal if you’re a minor), posing with weapons or flashing gang signs and insignia (which can come in handy for prosecutors when they are prosecuting or trying a gang-related offense), admitting or confessing to a crime, or engaging in other ill-advised behavior.
Under the Fifth Amendment to the US Constitution, you have the right to refrain from self-incrimination. In this surreal era of ubiquitous police surveillance, it would be wise to exercise that right.
4. Financial Scammers
It is easier than ever for hackers and financial criminals to perpetrate identity theft, credit card fraud or other financial crimes given the easy access people unwittingly give them via Facebook, Twitter and other resources. You can be sure predatory financial sociopaths are on the prowl for your personal information, including your full name, birthday and mother’s maiden name, all of which are available online if you post your actual full name, your real birth date and have your mother as your Facebook friend (using her maiden name).
It is not outside the realm of possibility for burglars who have been staking your house to use your Facebook posts or Twitter feed to track your every move. “I’m at the ball game” or “I’ll be on vacation the next two weeks” are great tip-offs for criminals who will seek to take advantage of this information to burgle your house.
Don’t be stupid. Be discriminating with what you choose to reveal online.
5. Stalkers
Cyberstalking is a criminal offense in California and carry severe criminal repercussions for people engaging in repeated, unsolicited, unwanted digital communications. California Penal Code Section 646.9. Related crimes include criminal threats under California Penal Code Section 422 and statutes relating to domestic violence.
Our firm both prosecutes cyberstalkers in a civil setting (restraining order and/or civil suit for monetary damages) and defends persons who have been wrongfully accused of cyberstalking.
Be mindful of your:
password
birthdate
employer information
privacy settings
mother’s maiden name
social security
address
These things may seem like common sense but they are often forgotten given how busy people are with their daily lives. Taking the necessary precautions can prevent creepy stalkers and hackers, as well as nosy employers and abusively intrusive law enforcement personnel, from gaining access to your personal information through your online profile.
The Coimbra Law Office is a full-service firm with an emphasis on Criminal Defense and Civil Litigation. Call us at 1-855-325-5245 or visit us at CoimbraLaw.com if you have questions or would like to schedule a consultation. Free initial consultations available.
Disclaimer: Nothing in this article or anywhere on this blog constitutes legal advice of any kind. Pictures above are featured for illustrative purposes only and are no reflection on the person depicted whatsoever. Attorney licensed in the State of California and, therefore, accepts California cases only.
Ten Ways People Turn Their Business Dream Into a Nightmare (and How You Can Avoid These Pitfalls and Ensure Long-Term Success)
By #CoimbraLaw Glendora Business Lawyers
Starting a business can be one of the most exhilarating events in your life. To put your dreams of financial and career independence on the road to fruition is nothing short of thrilling. But, done recklessly or without careful planning or investment, it can be chilling. An unexpected event against which you are uninsured or unprotected can ruin your business. Also, in this litigious age, all it takes is a customer or employee with a gripe and a lawyer to undo everything you ever worked for. Here are ten common legal, business and personal pitfalls that you can help guard against to help protect your dream of business ownership.
1. Not Getting Insurance
Having to incur what seem like unending business costs (no matter how “necessitous”) can be irritating and demoralizing. However, there are certain costs which you may neglect to pay at your own risk. One of them is insurance. You can probably live without the luxurious office or expensive office supplies. But insurance is a “sine que non” of running a business. Without insurance, you are potentially putting your personal assets on the line in the event of a crippling lawsuit. This can include everything you have worked for. Do not be stingy when it comes to insurance. Get it.
You might be asking, “I formed a corporation. Isn’t that enough to protect me from safeguarding my personal assets from a judgment?” Not necessarily. A plaintiff can seek to “pierce the corporate veil,” and, if the court determines that certain factors militate against your business being treated as a corporation (with all it’s safeguards), your personal assets can be at stake.
While this is certainly not an exhaustive list, some of the factors courts look at to make this determination include:
Lack of corporate records
Inaccuracy of corporate records
Misrepresentation or concealment of members
Intermingled assets (between shareholder(s) and the corporation)
Undercapitalization of the business entity
Failure to observe certain corporate formalities.
Certainly, forming a corporation, in appropriate circumstances, can help you avoid personal civil liability. But the perils of the court not treating your entity as corporation for purposes of a lawsuit can be dreadful and impoverishing. Business insurance may help offer an additional layer of protection.
2. Disobeying the Labor Laws
California labor laws are among the most stringent and punishing (for non-compliant employers) in the nation. Here are some of the mistakes for which employers can suffer financially-crippling lawsuits:
Failing to timely pay their employees the minimum wage
Failing to timely pay “non-exempt” employees overtime compensation
Failing to provide wage statements that delineate certain key elements
Failing to reasonably accommodate physically disabled employees
Failing to engage in the “interactive process” with employees with a known or perceived medical condition
Failing to provide bereavement leave
Discrimination against an employee who falls under a protected status (under the Fair Employment Housing Act) FEHA
Failing to place wage orders in a conspicuous fashion at the work site
Failing to carry workers compensation insurance
The list of requirements for employees is lengthy and somewhat tedious. And these are only a few of the requirements with which California employers must abide or face civil penalties. All it takes is one successful labor lawsuit to destroy your business. Don’t be cheap or lazy. If you are a small business owner, our employment law attorneys at the Coimbra Law Firm can provide you with the necessary guidance to help you avoid exposure to litigation. We can review your records and conduct an “audit” of your policies to help ensure compliance so that you can sleep at night and not have to worry about a lawsuit that could threaten your business.
3. Not Respecting The Law Of Balance (Taking on Too Much Work)
One thing that most successful entrepreneurs have in common is that they are workaholics. Many or most derive pleasure from investing their own creative efforts and energy in growing their business and building something about which they can be proud. Certainly, it is a commendable trait...to an extent. Investing an inordinate amount of personal time can have the opposite effect by exhausting you mentally and physically, such that you are ultimately unable to carry on, especially when the “going gets tough.” Breathe. Relax. Plan a vacation, if at all possible. Even if it is not to your remote fantasy island, a vacation that allows you to take personal time and unwind can do wonders for your psyche and physique. When you are through with your vacation, you will be that much more invigorated and ready to take on the daily challenges of running your business.
4. Not Preparing for the Lean Times
“Beginner’s luck” can be both a blessing and a curse. While it is a source of great encouragement to have the good fortune of being able to attract lots of clientele early on in your business, don’t count on it lasting forever. No matter how appealing your goods or services, or no matter how clever and effective a salesman or saleswoman you are, you are bound to face the vicissitudes of the business cycle. For either microeconomic or macroeconomic reasons, or a sheer reversal of fortune, we are all susceptible to financially lean times at one point or another. It is, therefore, indispensable to have some financial cushion on which you can rely for personal or business expenses. Don’t get too cocky and start blowing your initial profits on profligate spending. Save for a rainy day.
5. Not Being Sufficiently Wary of Business Schemes
If you have watched enough episodes of CNBC’s “American Greed” and the seemingly-never ending parade of financial sociopaths featured on that program, you will be mindful of the hucksters and spinsters preying on vulnerable people, including business startups like you. Many entrepreneurs are anxious to get a financial boost to supercharge their launching. Financial predators are well aware of the ambition and, unfortunately, naïveté, of many novice businesspeople. Be extremely wary and suspect of people promising the proverbial “moon and stars” with shady investment schemes or promises of quick wealth in exchange for even nominal amounts of money. The old adage, “if it seems to good to be true, it is” cannot be repeated often enough.
6. Being Too Afraid of Risk
Failure in business is a fact of life. A significant number of small businesses go belly-up in their first year. But don’t let this paralyze you with fear. If, indeed, you earnestly believe that your business idea, product or service can meet a particular demand, and you can earn wealth for yourself and your loved ones as a result, don’t be afraid to pursue your dreams. It has been said enough times to sound trite and banal, but this concept carries a great degree of truth. In fact, failure can often be a good stepping stone to long-lasting success once any weaknesses in your business plan are identified and rectified in favor of tenable and sound business ideas.
7. Being Too Risky (The Importance of Calculated Risk)
Many people will wax poetic about taking risks to pursue a personal business dream or passion, even at the abandon of reality and reason. But there are reasonable limits to everything, including the notion of starting your own business. While fear of failure can handicap you and prevent you from “reaching for the stars,” a certain amount of fear can be healthy. It will impel you to “do your homework” and do the necessary research to see whether, in fact, it is wise to pursue your business. In other words, risk should be “calculated” by the circumstances. Do you have some semblance of a plan for your business? Do you have the capital to make the necessary investments and incur the needed start-up costs? Do you feel there is a demand for your product or service? These are not questions meant to dishearten you. While being intrepid in the face of market adversities is commendable, it’s equally important not to be foolhardy. There is a healthy balance: risk tempered with planning and caution.
8. Killing Yourself With Overhead
I spoke earlier about the importance of incurring certain business costs, such as insurance. But it is equally important to measure your costs. An expensive website, a luxury office and fancy office furniture are all examples of costs you should consider refraining from making. You don’t want to turn your relationship with your business into a “marriage of convenience” where you are “stuck” because you are overwrought with financial obligations. You want your work to be as “digestible” and enjoyable as possible. So take it easy with the business credit card and use it wisely.
9. Taking Shortcuts to Make Ends Meet
Running a business can be mentally and physically draining and exhausting, especially in the beginning while you are trying to lay the groundwork for a permanent and prosperous operation. Sometimes it can be tempting to avoid having to fulfill certain requirements, like getting the necessary permits or licenses to run your business. While the temporary convenience is alluring, the benefits are, in fact, “temporary.” It’s only a matter of time before the appropriate city and/or state officials discover that you don’t have a business license or that you don't have the appropriate infrastructure for a place of public accommodation. For example, many businesses neglect to comply with the Americans with Disabilities Act (ADA) which requires that, if your premises are for “public accommodation,” your building or location have the necessary features to make it accessible to disabled persons. While you may initially be saving potentially thousands of dollars in repairs or modifications by refraining from doing this, you may be subjecting yourself to extremely costly litigation (that can far exceed any cost of repairs) if you are sued for non-compliance. Don’t be stingy: take the necessary measures to ensure you minimize exposure to legal liability of any kind.
10. Not Knowing a Good Lawyer
Many of us feel invincible because we have the intelligence and initiative to start our own business. So it’s easy to get a bit cocky and think we can personally handle whatever comes our way, including legal matters. However, California’s laws, rules, regulations pertaining to businesses are legion. And they are extremely intricate, detailed and complex. Get to know a good business lawyer who can help you “navigate the waters.” Many entrepreneurs even have a lawyer on “retainer” whom they can consult on an ongoing basis to answer important legal questions they are forced to confront as business-owners.
Having the courage to abandon a 9-to-5 in favor of your own business is laudatory and admirable. It can be the source of great financial prosperity as well as the personal satisfaction that you embarked on your own path to career independence. Just make sure to avoid pitfalls that can undermine your business. Be sure you take the proper steps to ensure long-term, headache-free business and financial success. In this regard, the Coimbra Law Firm offers small businesses a review of their policies and procedures. If your business is currently facing a lawsuit or a criminal charge or investigation, our business law firm may be able to help you. Our firm has the experience and knowledge to help defend you. If you have a question or would like a consultation, feel free to reach us at our toll free hotline, 1-855-325-5245 or via e-mail at Esquire@CoimbraLaw.com
Disclaimer: Nothing in this article or anywhere on this blog constitutes legal advice of any kind. Pictures above are featured for illustrative purposes only and are no reflection on the person depicted whatsoever. Attorney licensed in the State of California and, therefore, accepts California cases only.
Starting a business can be one of the most exhilarating events in your life. To put your dreams of financial and career independence on the road to fruition is nothing short of thrilling. But, done recklessly or without careful planning or investment, it can be chilling. An unexpected event against which you are uninsured or unprotected can ruin your business. Also, in this litigious age, all it takes is a customer or employee with a gripe and a lawyer to undo everything you ever worked for. Here are ten common legal, business and personal pitfalls that you can help guard against to help protect your dream of business ownership.
1. Not Getting Insurance
Having to incur what seem like unending business costs (no matter how “necessitous”) can be irritating and demoralizing. However, there are certain costs which you may neglect to pay at your own risk. One of them is insurance. You can probably live without the luxurious office or expensive office supplies. But insurance is a “sine que non” of running a business. Without insurance, you are potentially putting your personal assets on the line in the event of a crippling lawsuit. This can include everything you have worked for. Do not be stingy when it comes to insurance. Get it.
You might be asking, “I formed a corporation. Isn’t that enough to protect me from safeguarding my personal assets from a judgment?” Not necessarily. A plaintiff can seek to “pierce the corporate veil,” and, if the court determines that certain factors militate against your business being treated as a corporation (with all it’s safeguards), your personal assets can be at stake.
While this is certainly not an exhaustive list, some of the factors courts look at to make this determination include:
Lack of corporate records
Inaccuracy of corporate records
Misrepresentation or concealment of members
Intermingled assets (between shareholder(s) and the corporation)
Undercapitalization of the business entity
Failure to observe certain corporate formalities.
Certainly, forming a corporation, in appropriate circumstances, can help you avoid personal civil liability. But the perils of the court not treating your entity as corporation for purposes of a lawsuit can be dreadful and impoverishing. Business insurance may help offer an additional layer of protection.
2. Disobeying the Labor Laws
California labor laws are among the most stringent and punishing (for non-compliant employers) in the nation. Here are some of the mistakes for which employers can suffer financially-crippling lawsuits:
Failing to timely pay their employees the minimum wage
Failing to timely pay “non-exempt” employees overtime compensation
Failing to provide wage statements that delineate certain key elements
Failing to reasonably accommodate physically disabled employees
Failing to engage in the “interactive process” with employees with a known or perceived medical condition
Failing to provide bereavement leave
Discrimination against an employee who falls under a protected status (under the Fair Employment Housing Act) FEHA
Failing to place wage orders in a conspicuous fashion at the work site
Failing to carry workers compensation insurance
The list of requirements for employees is lengthy and somewhat tedious. And these are only a few of the requirements with which California employers must abide or face civil penalties. All it takes is one successful labor lawsuit to destroy your business. Don’t be cheap or lazy. If you are a small business owner, our employment law attorneys at the Coimbra Law Firm can provide you with the necessary guidance to help you avoid exposure to litigation. We can review your records and conduct an “audit” of your policies to help ensure compliance so that you can sleep at night and not have to worry about a lawsuit that could threaten your business.
3. Not Respecting The Law Of Balance (Taking on Too Much Work)
One thing that most successful entrepreneurs have in common is that they are workaholics. Many or most derive pleasure from investing their own creative efforts and energy in growing their business and building something about which they can be proud. Certainly, it is a commendable trait...to an extent. Investing an inordinate amount of personal time can have the opposite effect by exhausting you mentally and physically, such that you are ultimately unable to carry on, especially when the “going gets tough.” Breathe. Relax. Plan a vacation, if at all possible. Even if it is not to your remote fantasy island, a vacation that allows you to take personal time and unwind can do wonders for your psyche and physique. When you are through with your vacation, you will be that much more invigorated and ready to take on the daily challenges of running your business.
4. Not Preparing for the Lean Times
“Beginner’s luck” can be both a blessing and a curse. While it is a source of great encouragement to have the good fortune of being able to attract lots of clientele early on in your business, don’t count on it lasting forever. No matter how appealing your goods or services, or no matter how clever and effective a salesman or saleswoman you are, you are bound to face the vicissitudes of the business cycle. For either microeconomic or macroeconomic reasons, or a sheer reversal of fortune, we are all susceptible to financially lean times at one point or another. It is, therefore, indispensable to have some financial cushion on which you can rely for personal or business expenses. Don’t get too cocky and start blowing your initial profits on profligate spending. Save for a rainy day.
5. Not Being Sufficiently Wary of Business Schemes
If you have watched enough episodes of CNBC’s “American Greed” and the seemingly-never ending parade of financial sociopaths featured on that program, you will be mindful of the hucksters and spinsters preying on vulnerable people, including business startups like you. Many entrepreneurs are anxious to get a financial boost to supercharge their launching. Financial predators are well aware of the ambition and, unfortunately, naïveté, of many novice businesspeople. Be extremely wary and suspect of people promising the proverbial “moon and stars” with shady investment schemes or promises of quick wealth in exchange for even nominal amounts of money. The old adage, “if it seems to good to be true, it is” cannot be repeated often enough.
6. Being Too Afraid of Risk
Failure in business is a fact of life. A significant number of small businesses go belly-up in their first year. But don’t let this paralyze you with fear. If, indeed, you earnestly believe that your business idea, product or service can meet a particular demand, and you can earn wealth for yourself and your loved ones as a result, don’t be afraid to pursue your dreams. It has been said enough times to sound trite and banal, but this concept carries a great degree of truth. In fact, failure can often be a good stepping stone to long-lasting success once any weaknesses in your business plan are identified and rectified in favor of tenable and sound business ideas.
7. Being Too Risky (The Importance of Calculated Risk)
Many people will wax poetic about taking risks to pursue a personal business dream or passion, even at the abandon of reality and reason. But there are reasonable limits to everything, including the notion of starting your own business. While fear of failure can handicap you and prevent you from “reaching for the stars,” a certain amount of fear can be healthy. It will impel you to “do your homework” and do the necessary research to see whether, in fact, it is wise to pursue your business. In other words, risk should be “calculated” by the circumstances. Do you have some semblance of a plan for your business? Do you have the capital to make the necessary investments and incur the needed start-up costs? Do you feel there is a demand for your product or service? These are not questions meant to dishearten you. While being intrepid in the face of market adversities is commendable, it’s equally important not to be foolhardy. There is a healthy balance: risk tempered with planning and caution.
8. Killing Yourself With Overhead
I spoke earlier about the importance of incurring certain business costs, such as insurance. But it is equally important to measure your costs. An expensive website, a luxury office and fancy office furniture are all examples of costs you should consider refraining from making. You don’t want to turn your relationship with your business into a “marriage of convenience” where you are “stuck” because you are overwrought with financial obligations. You want your work to be as “digestible” and enjoyable as possible. So take it easy with the business credit card and use it wisely.
9. Taking Shortcuts to Make Ends Meet
Running a business can be mentally and physically draining and exhausting, especially in the beginning while you are trying to lay the groundwork for a permanent and prosperous operation. Sometimes it can be tempting to avoid having to fulfill certain requirements, like getting the necessary permits or licenses to run your business. While the temporary convenience is alluring, the benefits are, in fact, “temporary.” It’s only a matter of time before the appropriate city and/or state officials discover that you don’t have a business license or that you don't have the appropriate infrastructure for a place of public accommodation. For example, many businesses neglect to comply with the Americans with Disabilities Act (ADA) which requires that, if your premises are for “public accommodation,” your building or location have the necessary features to make it accessible to disabled persons. While you may initially be saving potentially thousands of dollars in repairs or modifications by refraining from doing this, you may be subjecting yourself to extremely costly litigation (that can far exceed any cost of repairs) if you are sued for non-compliance. Don’t be stingy: take the necessary measures to ensure you minimize exposure to legal liability of any kind.
10. Not Knowing a Good Lawyer
Many of us feel invincible because we have the intelligence and initiative to start our own business. So it’s easy to get a bit cocky and think we can personally handle whatever comes our way, including legal matters. However, California’s laws, rules, regulations pertaining to businesses are legion. And they are extremely intricate, detailed and complex. Get to know a good business lawyer who can help you “navigate the waters.” Many entrepreneurs even have a lawyer on “retainer” whom they can consult on an ongoing basis to answer important legal questions they are forced to confront as business-owners.
Having the courage to abandon a 9-to-5 in favor of your own business is laudatory and admirable. It can be the source of great financial prosperity as well as the personal satisfaction that you embarked on your own path to career independence. Just make sure to avoid pitfalls that can undermine your business. Be sure you take the proper steps to ensure long-term, headache-free business and financial success. In this regard, the Coimbra Law Firm offers small businesses a review of their policies and procedures. If your business is currently facing a lawsuit or a criminal charge or investigation, our business law firm may be able to help you. Our firm has the experience and knowledge to help defend you. If you have a question or would like a consultation, feel free to reach us at our toll free hotline, 1-855-325-5245 or via e-mail at Esquire@CoimbraLaw.com
Disclaimer: Nothing in this article or anywhere on this blog constitutes legal advice of any kind. Pictures above are featured for illustrative purposes only and are no reflection on the person depicted whatsoever. Attorney licensed in the State of California and, therefore, accepts California cases only.
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