Safe Gun Storage Federal and State Laws

Safe gun storage laws are in effect in most all States to prevent accidents in homes especially where children are involved. The ATF (Federal Bureau of Alcohol, Tobacco and Firearms) has a mandate in place for gun selling facilities which states that firearms are to be secured in safes or have trigger locks installed to prevent firing. The selling establishment has to sign a certification form that they comply by this law. This law is required by all states.

Just to mention a few of the state’s safe gun laws, in Texas, as well as other states, a firearm sales facility has to place a sign somewhere visible to all customers buying rifles, shotguns and pistols in their store that says ” It is unlawful to store, transport, abandon an unsecured firearm in a place where children are likely to be and can obtain access to the firearm” (information taken from The Firearm Laws of Texas) or a similar statement.

In New York State, all retailers that sell firearms to customers, whether they are new or used, must provide some type of locking device with their purchase such as trigger locks, cable locks, etc. These locks do not need to be installed when sold and each device must meet certain requirements that prevent firearms from being fired. This law does not apply to sales between dealers. New York does not require buyers to secure their firearms with these devices but it is highly recommended they do. Firearm owners should check with their local authorities to determine if there are any local ordinances require otherwise. There are codes within the state that states it is a criminal violation punishable by up to 10 days imprisonment and/or a fine up to $250 for any owner to store or leave a firearm in such a manner that is out of their immediate possession or control, without making the weapon inoperable by installing a safety locking device.

While these required types of locks do protect firearms from being fired, they do not prevent them from being stolen once the buyer places them in their home. Gun cases and wood gun racks do not deter gun theft and do not qualify as safe storage. They should be secured in locking devices such as locking gun racks, firearm safes, etc. to add extra security.

Several states have passed laws that make firearm owners criminally liable if someone is injured because a child gains unsupervised access to a gun and can issue fines or jail time where children are involved depending on the circumstances.

Florida, as well as other states, has several laws and regulations regarding safe gun storage in homes as well as in vehicles. The state of Florida’s major concern is the safety for children. Anyone in violation of improper storage of firearms where children can have easy access could be subject to up to 60 days in jail and a $1000 in related fines.

The state of California, like in most all other states, requires all firearms be stored in a safe and secured manner. They also require all retail sales of firearms include a Department of Justice locking safety device or proof that the purchaser owns a firearm safe that meets regulatory standards established by the department. The types of approved devices can be found on the Department of Justice’s website…

Since State laws are constantly changing, this article is for general information and not for official use. You can check with your state and local authorities for current updates pertaining to safe gun storage laws.

Finding Asbestos Mesothelioma Legal Information

There are many people who are concerned about this type of cancer caused by too much exposure to asbestos. Mesothelioma legal information is very much needed in order for them to know the ways and means to combat this kind of disease legally. Looking for legal information can really give them a guide of what they will do next. This is in connection to health-related issues that is why knowing the legal information is quite important.

One good way to get that needed information is by consulting a lawyer. With their expertise in this issue, they can give you the exact legal information of your concern. Today there are many lawyers who are in need of cash and this type of problem is what they like most because there are many people involved who are willing to pay on whatever price so finding a good lawyer is very hard to do. You should research the history of a certain lawyer if he already solved a similar case before. Doing this can let you save time and effort in finding a good lawyer that can give you those legal information.

In libraries, there are many references that can be scanned to get asbestos mesothelioma legal information. You should also take a look at the publishing year of that book in order to get updated. This type of cancer is not new so there are many published books about this and as the years has passed there are new and existing laws and issues that are added so looking at the publishing year of the book is essential.

You can also find information online because there are many sites that deal with this issue. Just like offline, you should also be careful in giving out money because there are many scam sites that are ready to take your money away. There are many cases of this type of cancer and it is up to you to take whatever it is that you find helpful in order to have the information that you need.

Badminton and Lightening Bugs – Using the Memoir to Teach Middle School Students to Write

One of the best ways to get middle school students to write, begin to enjoy writing, and eventually find their own voice is to teach them to write memoirs. Once they learn to put their own thoughts and feelings on paper, writing memoirs can have a double benefit. Often, with a little prompting, students can write memoirs that quite naturally fit into the structure of a well-written essay. But how do you get them started? The very best way is to model an example for them. When you assign them a topic, complete the assignment yourself, give it your best effort, and share your writing with your students. Share with them how you brainstormed to narrow down your topic, how you organized it, and how, why, and where you edited and revised it. Students will follow your lead. If you produce good writing, they will watch and model you and they will produce good writing. Try it and see.

What follows is one of the first memoirs I produced and shared with my students. They were writing pieces for an autobiography and this piece was called, “My Most Treasured Childhood Memory.” They were free to change the title or add sub-titles as their pieces progressed. Mine became: “Badminton and Lightening Bugs.”

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Badminton and Lightening Bugs

(My Most Treasured Memory)

When I think about my most treasured memory from childhood, it isn’t a trip or vacation or a special occasion, like a birthday or a particular Christmas. Instead, my favorite memory centers around those long summer evenings when my family was all together and we did nothing special at all. What makes those evenings stand out in my mind and my heart? Perhaps it was the easy-going carefree atmosphere, kind of like the Andy Griffith Show. Or maybe it was that all my family was there, laughing and enjoying each other’s company. That treasure is something I’ve lost forever. My brother and sisters are busy with their own lives, my parents have passed away, and my cousins have all moved away. Another family lives in our house now. The memory of those summer evenings lives only in my heart.

I grew up in a small, white house with my mom and dad, two sisters, and a brother. In the summer, with no air-conditioning in the house, we found ourselves outside as much as in. Our house had a concrete porch with steps that led down to a sidewalk. At the end of the sidewalk, two more steps led down to our gravel driveway. The sidewalk separated our yard into two halves. A pine tree marked the edge of the left side of the yard and a large, spreading elm shade tree marked the edge of the right side. It was a lovely yard to play in, and the sidewalk made a natural division for choosing sides and playing Tag or Red Rover or our favorite summer game – Badminton.

We had a number of cousins who lived within walking distance, so many times in the late summer evenings, one or more of them showed up at our house and a game of one kind or another got started. It was easy to play Badminton because the sidewalk made a kind of natural “net” and we didn’t have to worry about setting up or taking down an actual net. In fact, I can’t recall us ever owning a real net. We just grabbed the Badminton rackets and a couple of “birdies” out of the basement and the games were on. Our yard was big enough to play one against one or even two against two. The trees on either side of the yard served as boundaries. Our games were sometimes fiercely competitive elimination games, especially as we grew older and more skilled, but just as often they continued in a friendly, easy-going manner until the dusk overtook us and we could no longer see the birdie well enough to hit it.

By that time, the lightening bugs were out and flying everywhere around us. One of us took the Badminton rackets and birdies to the basement and returned with a couple of mason jars. Then a new competition started as we ran around the yard in a frenzy, each of us trying to get the most lightening bugs in our jar. Just as tricky as catching them was keeping them in the jar as we added to our stash. Sometimes two or three escaped when we tried to put a new one in. We got extra points for having bugs with different colored lights. Did you know that lightening bugs’ lights are different colors? They are – I can tell you that for a fact. I don’t know what the different colors are supposed to mean – if it’s evidence of the bug’s age or gender or what – but the lightening bugs in our yard could be dark or light green, dark or light orange, or golden yellow. Whoever got at least one bug of every color in a single night was “King of the Lightening Bug Catchers” for that day.

Eventually our parents, who were sitting outside on the porch watching us, called us in to get ready for bed and sent the cousins back home. We set our lightening bugs free and put our jars away, ready to be filled on another evening. As the summer wore on, the katydids started chirping and the number of lightening bugs slowly diminished, going, I suppose, where all lightening bugs go with the coming of fall. The night air started getting nippy and soon it was time for school to start. That was the end of our late evening “Gatherings on the Lawn” until the next summer called us out to play once more.

It’s been many years since I last played Badminton or caught lightening bugs in my front yard, but it doesn’t take much to awaken those memories in my heart. The smell of freshly-cut grass or the deep green scent of a pine tree, the swooshing sound of a birdie being hit by a badminton racket, the keen, echoing chirp of a katydid, and of course, the tiny glow of a lightening bug are all it takes to carry me back to my most treasured childhood memory – Badminton and Lightening Bugs.

Megan’s Law – It’s Only Half The Battle

Spend some time in any PTA meeting, Mommy & Me group, or even a playdate with friends and it isn’t long before the conversation turns into a worried discussion about Megan’s Law and the sex offender information that parents can now readily access with just a few clicks of their computer mouse.

Parents everywhere are feverishly checking these websites, sometimes weekly or even daily, to see if a registered sex offender resides nearby. Unfortunately, there are a few flaws in this perceived “safety net” that well-intentioned parents should know.

Don’t get me wrong, I am a HUGE proponent of Megan’s Law and the information it provides. I strongly believe that once a sex offender has been released back into the community, the public has the absolute right to know their whereabouts.

But… focusing solely on this component of child safety can do a serious disservice to our kids, IF we stop there.

A Basic Overview of Megan’s Law

Megan’s Law is a federal law, signed on May 17, 1996 by President Bill Clinton. It is named for 7 year old Megan Nicole Kanka of Hamilton Township, New Jersey, who tragically, was sexually abused and killed in 1994 by a twice-convicted pedophile who lived across the street from her home. Unaware of his presence and criminal history, Megan’s parents, Maureen and Richard Kanka, were devastated and outraged. They established the Megan Nicole Kanka Foundation and lobbied government officials to create a law which would require all 50 states to release information regarding the presence of convicted sex offenders in our communities. In it’s most basic terms, the law mandates that the public has the right to know the whereabouts of convicted sex offenders once they have been released, and that all 50 states must make this information available to the public.

Many states have created a dedicated Megan’s Law website, to which the public can log onto through their own personal computer and research the data pertinent to their town or local community.

There are several ways you can check the Megan’s Law sex offender register in your state. In my home state of California, the website is meganslaw.ca.gov. To access the information in your state, you can visit familywatchdog.us. This website provides a free national sex offender registry link and also contains excellent safety information. You may also check your state’s Attorney General’s website, your State Police website, or visit megannicolekankafoundation.org.

Only Part of the Solution…

While Megan’s Law is an excellent awareness tool and provides vital information to the public, parents must remember that it can only do so much.

To begin with, a sex offender register is not a perfect system. In some instances, registered offenders may or may not actually be living where they are listed. Depending on which state you live in, you may even have some registered offenders whose whereabouts are not made public due to an exclusionary clause in the law. For example, some offenders fall into the “undisclosed category” – which means they areregistered with the state, but their information is not accessible on the website. According to the California Dept. of Justice, approximately 25% of registered offenders are excluded from public disclosure by law, depending on the type of crime that person has been convicted of.

More importantly, parents must remember that there are plenty of sex offenders out there who simply haven’t been caught, and therefore, are not listed on any register. As a result, we need to protect our kids from those who may be “flying under the radar” as it were.

What’s A Parent To Do?

Be a PRO-ACTIVE parent rather than a REACTIVE one. A PRO-ACTIVE parent can beat a sex offender at their own game. By now, many parents are somewhat familiar with the real statistic that 90% of child sexual abuse happens by someone the child knows, not by a stranger. Since that’s the real issue, it’s time we started looking at prevention education in a way actually protects our children.

Kids need to be taught how to recognize and defend their personal boundaries with adults they interact with. They need to understand what is appropriate and inappropriate behavior from a grown up (or even an older child), and what to do if they get a red flag or “uh-oh” feeling from someone’s improper actions.

In plain English, kids need to know what to do if “Coach Smith” tries to touch a private part of their body, or if a babysitter or relative wants to play a physical “touching game” that just feels weird or “yucky”. These are much more common scenarios than the stranger who may or may not be living down the street.

Megan’s Law is a good start in protecting our kids. Yet, it’s still only half the battle. With smart prevention education in conjunction with Megan’s Law, we can offer each other a real solution to keeping our children safe.

10 Prevention Tips for Parents

1. Don’t equate stranger with danger. Teach your child how to recognize a potentially dangerous action or situation instead. (“Thumbs up or thumbs down!”)

2. Be involved in your child’s activities. As a “visible parent”, you’ll have a better opportunity to observe how other adults interact with your child.

3. Screen caregivers and babysitters carefully. Always check references – no matter who they come recommended by.

4. Pay attention to clues and cues in other adults’ behavior around your child. A predator’s grooming tricks can be very subtle at first. For example, is there someone who continually tries to arrange “alone time” with your child, often working very hard to create the opportunity by using flattery or suggesting outings that don’t include you?

5. Listen to your child, especially if they consistently don’t want to be around a particular person, such as a babysitter, relative, or family friend. They may be sensing “a red flag” that you are unaware of.

6. Let children decide for themselves how they want to express affection. Do not force them to a hug or kiss another person if they don’t want to.

7. Spend quality time with your children. Kids who are starved for affection or attention can be vulnerable targets for a child molester or predator.

8. Be alert to anyone who insists on being physical with your child (hugging, kissing, tickling, wrestling, touching) especially when the child seems uneasy or has asked them to stop.

9. Let children know they have the right to say NO to any unwanted touches or physical attention. It’s okay to say NO even to a grownup or a bigger kid, and then immediately tell a grownup they trust (like mom or dad) as soon as they can.

10. Review and practice basic safety skills with your children often. Children need to hear the information more than just once to really understand.

Attorney Negligence: Did It Cost You Your Case?

Attorney Negligence: Did It Cost You Your Case?

Statistics show that legal malpractice claims have become more frequent for the last three decades. There are several instances where a client loses confidence in the abilities of his lawyer because the latter made matters worse instead of providing a resolution to the problem. If you suffered damages due to your lawyer’s wrongful conduct, may it be due to his negligence or intentional act, you may consider the option of bringing a legal malpractice action. However, proving a legal malpractice claim could be challenging as it often involves extensive search for appropriate arguments and corroborating evidence. Despite the existence of actual damages, there are other factors that need to be examined to determine whether a claim of legal malpractice should be filed.

Damages

If the client can prove that the attorney’s negligence or wrongful act resulted in damages, such damages could be recovered by filing a legal malpractice lawsuit. However, there are cases where damages are not easily ascertainable. In such cases, the California Supreme Court held that recovery of damages could still be awarded even if the existence and the cause of such damages are difficult to determine. On the most part, however, damages that are based on speculation or mere threat of future harm are usually not awarded by California courts.

Clients are likely to be more successful with the recovery of so-called “direct” damages. These are damages that have been the direct result of an attorney’s negligence or misconduct. For instance, in a case where an attorney wrongfully advises his client to file for bankruptcy and sell his home for a lower price than its market value, the court is likely to award the client damages to the extent of what he lost from the sale. In another case, a California court awarded damages to a physician due to the loss of his good reputation and the increase in premiums for his medical malpractice insurance due to his attorney’s negligence.

If the client can show clear and convincing evidence that the attorney can be held liable for fraud, malice or oppression, even punitive damages may be recovered, see California Civil Code § 3294. However, client-plaintiffs who have been denied the award of compensatory damages will not be entitled to punitive damages. In general, it is more difficult to prove the existence of punitive damages as courts usually require specific facts to prove that the attorney acted with oppression, fraud or malice. In one rare case, the court of appeals awarded punitive damages due to an attorney’s “conscious disregard of plaintiff’s safety”. In that case, the attorney, who was also a physician, advised his client to postpone the surgery in order to strengthen their medical malpractice lawsuit even though he knew about the urgency of a surgery.

Furthermore, if the client-plaintiff lost his claim for punitive damages in the underlying action, it is very unlikely that courts will award him punitive damages in a legal malpractice lawsuit. The California Supreme Court held that such damages are based on speculation and plaintiffs should not be entitled to damages that cannot be proven with certainty. Otherwise, lawyers would be exposed to more risks of liability, resulting in an increase in the cost of malpractice insurance.

Attorney Negligence

In a legal malpractice action based on the attorney’s negligence, the courts will look into four factors. First, the client-plaintiff needs to show that the attorney-defendant has the obligation to apply the skill, prudence and diligence required from his profession. Second, there has to be proof that the attorney failed to fulfill the above mentioned duty. Third, the client-plaintiff also needs to show that the attorney’s breach of his duty resulted in the damages he suffered. Lastly, as mentioned above, the client-plaintiff needs to present evidence of the existence of such damages and not just mere speculation. According to the California Supreme Court, client-plaintiffs who are facing criminal charges need to prove their actual innocence before they can bring an action against their attorneys. This way, the clients who have been found guilty by a criminal court would not be allowed to go after their attorneys and recover civil damages. An exception to this rule is a malpractice action that is not based on the quality of legal services provided by the attorney. For instance, a fee dispute between the client and the attorney can still be pursued in court even if the client was charged by a criminal court because such a dispute merely involves the attorney’s billing practices.

Typical Cases of Malpractice

The most common basis of malpractice action is the failure of an attorney to adhere to the deadlines set by the Code of Civil Procedure as well as other statutory filing deadlines. As mentioned above, attorneys are expected to apply the required skill, prudence and diligence in providing legal services. The failure to file a lawsuit, initiate a proceeding or bring an action within the so-called statutes of limitation could constitute a strong claim for legal malpractice.

An attorney can also be held liable if the court in the underlying case issues a default judgment against his client due to his failure to file a pleading, see California Code of Civil Procedure § 585. Furthermore, if he fails to relieve his client from the default by filing a motion in a timely manner, namely within six months after the issuance of the default judgment, the client would have another ground to file a malpractice lawsuit against him assuming that the motion could have been successful.

It is also possible to hold an attorney liable for not raising viable defenses in a legal action. In such cases, however, the client-plaintiff needs to show that the defenses that were not asserted can be proven in court and would have led to a more favorable result. In one case, for instance, a California court denied the award of damages to the plaintiff because the attorney decided to leave out weak defenses.

In general, attorneys have an obligation to adhere to their clients’ preferences particularly with regard to legal decisions involving their substantive rights. The failure to follow these instructions can be a basis for a malpractice action. In one case, for instance, a California court held an attorney liable for his failure to file a complaint despite of his client’s specific instructions to do so.

However, courts have held that an attorney can make decisions without his client’s consent if authority has been given in an agreement. Decisions involving procedural matters are also instances where attorneys can act independently. California courts have not yet drawn the line as to how to differentiate procedural matters and legal decisions. Thus, establishing a legal malpractice action based on the failure to adhere to clients’ instructions could pose several challenges. On the other hand, courts have consistently held that attorneys are not obliged to follow instructions that can result in an illegal or unethical conduct. Furthermore, an attorney can reject a case if he determines in good faith that the case lacks merit.

Another frequent basis for a legal malpractice action involves settlements. According to the California Rules of Professional Conduct, an attorney needs to provide his client specific information pertaining to the settlement such as the amount, and the terms and conditions of the offer, see California Rules of Professional Conduct Rule 3-510. To be successful with a malpractice action, a client-plaintiff needs to prove three things. First, there has to be evidence showing the attorney’s failure to inform the client about the settlement (or parts of the settlement). Second, the client-plaintiff needs to attest that he would have accepted the settlement offer if he had known about it (or had sufficient information about it). Last, evidence should be presented that the client would have benefited more from the settlement than the actual outcome of the case. The amount of damages in such a case will be determined by the difference between the actual outcome of the case and what the client-plaintiff would have received from the settlement offer.

Statutes of Limitation

In general, clients can file a legal malpractice lawsuit one year after the discovery of circumstances that support the malpractice claim or four years after the attorney’s act of misconduct, whichever comes first, see California Code Civil Procedure § 340.6(a). There are, however, exceptions to this general rule that could prolong the periods of limitation, giving plaintiffs more time to file a lawsuit. For instance, periods where the plaintiff is physically unable to bring a legal malpractice action against his attorney will be considered as tolled. The same applies to cases where the attorney-defendant is still representing the client-plaintiff in the same case where the attorney’s misconduct is at issue. In such cases, the time limit for bringing a legal malpractice action could be exceeded.

Seeking Legal Advice

The success of a legal malpractice lawsuit will mainly depend on the evidence and arguments which will support the claim that the attorney has been negligent in representing his client. Even procedural matters such as determining the applicable deadline could pose some challenges as well. Thus, in cases that involve complex issues, consulting a lawyer who is experienced in legal malpractice cases is inevitable in order to prevent the occurrence of further damages to the client.

Sources:
California Code of Civil Procedure
California Rules of Professional Conduct

For further reading:
George Lindahl J.D., California Torts, 2012
Suzan Herskowitz Singer, Attorney Responsibilities & Client Rights, 2003
Robert W. Schachner Esq., How & When to Sue Your Lawyer, What You Need to Know, 2005