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    The Lawletter Blog

    CONSTITUTIONAL LAW: Convicted Domestic Abuser's Gun Rights Go Up in Smoke

    Posted by John M. Stone on Tue, Oct 2, 2018 @ 10:10 AM

    The Lawletter Vol 43 No 5

    John Stone—Senior Attorney, National Legal Research Group

                The Gun Control Act of 1968 bars firearm possession by certain groups of individuals, including convicted felons and those “adjudicated as a mental defective or who ha[ve] been committed to a mental institution.” 18 U.S.C. § 922(g)(1), (4). In 1996, Congress added a domestic violence misdemeanant restriction.  Id. § 922(g)(9). Recognizing  that  “[e]xisting felon-in-possession  laws . . . were not keeping firearms out of the hands of domestic abusers, because many people who engage in serious spousal or child abuse ultimately are not charged with or convicted of felonies,” Congress extended the federal firearm prohibition to persons convicted of misdemeanor crimes of domestic violence to “close this dangerous loophole.” United States v. Hayes, 555 U.S. 415, 426 (2009) (internal quotation marks, citation, and bracket omitted).

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    Topics: constitutional law, Gun Control Act, firearm prohibition, misdemeanor crime of domestic violence, second amendment

    PROPERTY: Do Short-Term Vacation Rentals Violate Covenant Prohibiting Commercial Activity or Use?

    Posted by Alistair D. Edwards on Mon, Oct 1, 2018 @ 11:10 AM

    The Lawletter Vol 43 No 5

    Alistair Edwards—Senior Attorney, National Legal Research Group

                Short-term vacation rentals have become increasingly popular and easier to obtain with the advent of websites such as Airbnb. Now, an owner can simply use such a website to attract potential renters and lease the property to vacationers on a very short-term basis. Some of these rentals can be as short as a one- or two-day rental. However, owners of residential properties that are subject to restrictive covenants are often prohibited from using their properties for commercial activities, uses, or purposes. Does this include renting the property to vacationers on a short-term basis?

            Recently, in Forshee v. Neuschwander, 2018 WI 62, 914 N.W.2d 643 (Wyo. 2018), the Wisconsin Supreme Court considered this exact issue.

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    Topics: property, short-term vacation rental, commercial activity use, restrictive covenant

    CIVIL PROCEDURE: Submission of Materials Outside the Pleadings in Response to a Rule 12(b)(6) or Rule 12(c) Motion

    Posted by Paul A. Ferrer on Mon, Oct 1, 2018 @ 11:10 AM

    The Lawletter Vol 43 No 5

    Paul Ferrer—Senior Attorney, National Legal Research Group

             We have written frequently in the Lawletter about the revolution in federal pleading practice occasioned by the Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Under the new standard, a claim is sufficient to withstand a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure (or a motion for judgment on the pleadings under Rule 12(c)) only when, accepting as true the facts alleged in the complaint but not any legal conclusions, the claim has “facial plausibility,” that is, it allows the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678; see also Twombly, 550 U.S. at 570 (the plaintiff must allege enough by way of factual content to “nudge” her claim “across the line from conceivable to plausible”). This standard requires the plaintiff to include more facts in her complaint than were necessary before the dawn of the Twombly/Iqbal era.

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    Topics: civil procedure, Rule 12 motion, facial plausibility, evidentiary support documents

    CIVIL RIGHTS: SCOTUS Overturns Lower Courts' Conclusions on Probable Cause And Qualified Immunity

    Posted by Jason Holder on Fri, Sep 28, 2018 @ 11:09 AM

    The Lawletter Vol 43 No 4

    Jason Holder, Senior Attorney, National Legal Research Group

                Early in the morning on March 16, 2008, the D.C. Police received a complaint of loud music coming from a house in Northeast D.C. District of Columbia v. Wesby, 138 S. Ct. 577, 583 (2018). When officers responded to the house, they found it in a state of disarray with beer bottles and cups of liquor all over. Id. The floor was so dirty, the officers noted, "that one of the partygoers refused to sit on it while being questioned." Id. Although it had working electricity and plumbing, the house contained no furniture aside from a few folding chairs. A further inspection of the house found the living room transformed into "a makeshift strip club," and "more debauchery upstairs." Id.

                While many of the 21 individuals found in the house claimed to be throwing a bachelor party, none could identify the supposed bachelor. Id. A woman identified only as "'Peaches' or 'Tasty,'" was allegedly renting the house, but when the officers attempted to contact her, "Peaches" refused to meet with police "because she was afraid of being arrested." Id. "Peaches" eventually admitted that she did not have permission to be in the house and a call to the owner confirmed this. Id. at 583-84. Based upon their investigation, the officers arrested all 21 individuals present for unlawful entry, id. at 584, although a lieutenant later decided to charge them with disorderly conduct. Id. All charges were ultimately dropped. Id.

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    Topics: criminal procedure, probable cause, qualified immunity, totality of the circumstances

    TORTS: Is Your Computer Tracking You?

    Posted by Alfred C. Shackelford III on Fri, Sep 28, 2018 @ 10:09 AM

    The Lawletter Vol 43 No 4

    Fred Shackelford, Senior Attorney, National Legal Research Group

                In a case of first impression, the Wyoming Supreme Court has adopted the intrusion upon seclusion branch of the common-law tort of invasion of privacy. In Howard v. Aspen Way Enterprises, Inc., 2017 WY 152, 406 P.3d 1271 (Wyo. 2017), the plaintiffs leased computers from a rent-to-own store. They alleged that the store installed software on the computers that allowed the store to track the computers' locations, remotely activate the computers' webcams, and capture screen shots and key strokes. The customers sued the store, alleging claims for the invasion of privacy and breach of the covenant of good faith and fair dealing. The lower courts ruled that Wyoming does not recognize a claim for the intrusion upon seclusion.

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    Topics: torts, invasion of privacy, intrusion upon seclusion, tracking by computer

    BANKRUPTCY: Effect of Prior Bankruptcies on Civil Litigation

    Posted by Lee P. Dunham on Fri, Sep 28, 2018 @ 10:09 AM

    The Lawletter Vol 43 No 4

    Lee Dunham, Senior Attorney, National Legal Research Group

                Bankruptcy Code § 521(1) places an affirmative duty upon a debtor to disclose all assets to the bankruptcy court. A known cause of action that has accrued is an asset that must be scheduled under Bankruptcy Code § 521(1). See Eubanks v. CBSK Fin. Group, Inc., 385 F.3d 894, 897 (6th Cir. 2004); Cusano v. Klein, 264 F.3d 936, 945 (9th Cir. 2001). An unliquidated cause of action need not actually be filed prior to the commencement of the bankruptcy in order to qualify as an asset that must be scheduled. See Barletta v. Tedeschi, 121 B.R. 669, 671-72 (N.D.N.Y. 1990). However, debtors frequently neglect to list unliquidated causes of action as assets, whether because they have filed a bankruptcy without the assistance of a competent bankruptcy attorney or because, through simple oversight or lack of understanding, they failed to inform their bankruptcy counsel of their existing claims.

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    Topics: bankruptcy proceeding, unliquidated causes of action, asset, undisclosed asset

    WORKERS' COMPENSATION: Exclusivity—Employer’s Failure to Obtain Insurance

    Posted by Matthew T. McDavitt on Fri, Sep 28, 2018 @ 10:09 AM

    The Lawletter Vol 43 No 4

    Matthew McDavitt, Senior Attorney, National Legal Research Group

                In circumstances where an employer subject to the workers' compensation mandate fails to obtain the requisite insurance coverage, such noncompliance can have serious legal consequences. By statute in many states, such noncompliance deprives the employer of the standard employer tort defenses barring a defendant employer from asserting (1) an assumption of risk, (2) the fellow servant rule, and (3) contributory negligence in a tort suit brought by an injured worker.

                From a policy perspective, this statutory defensive penalty was intentionally enacted so as to materially disadvantage noncompliant employers at trial (by removing an employer’s preferred tort defenses), thereby encouraging employers to participate in the system. Bath Mills v. Odom, 168 F.2d 38, 39-40 (4th Cir. 1948); Blinkinsop v. Weber, 85 Cal. App. 2d 276, 279, 193 P.2d 96, 97 (1948).

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    Topics: workers' compensation, insurance coverage, noncompliance consequences

    PROPERTY/LANDLORD TENANT: Can a Tenant Use the Exclusionary Rule When Fighting an Eviction?

    Posted by Steven G. Friedman on Fri, Jun 15, 2018 @ 12:06 PM

    The Lawletter Vol 43 No 3

    Steven G. Friedman—Senior Attorney, National Legal Research Group

         The Fourth Amendment to the United States Constitution protects citizens from unreasonable searches and seizures of their persons or property. See U.S. Const. amend. IV. The exclusionary rule prohibits the use of evidence obtained in violation of the Fourth Amendment. See United States v. Calandra, 414 U.S. 338, 347 (1974). However, the exclusionary rule does not apply to all proceedings or against all persons and is generally restricted to areas in which the goal of deterring unlawful police conduct is "most efficaciously served." Id. at 348. In determining whether the exclusionary rule applies, the U.S. Supreme Court has developed a balancing test whereby courts weigh the likely social benefits of excluding unlawfully obtained evidence against the possible costs. See INS v. Lopez Mendoza, 468 U.S. 1032, 1041 (1984).

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    Topics: exclusionary rule, eviction, Fourth Amendment, property law, landlord-tenant

    CRIMINAL LAW:  Second Circuit Upholds Restrictions on Removing "Premises Licensed" Handguns from Premises

    Posted by Suzanne L. Bailey on Fri, Jun 15, 2018 @ 11:06 AM

    The Lawletter Vol 43 No 3

    Suzanne Bailey—Senior Attorney, National Legal Research Group

         Coming in the midst of a national discussion on reasonable limits on the Second Amendment right to bear arms prompted by high school students’ reaction to the Parkland, Florida, school shooting, a decision from the Second Circuit Court of Appeals upholding a New York City regulation restricting the ability of individuals with a "premises license" handgun permit to remove the gun from the specified premises has special resonance. In New York State Rifle & Pistol Association, Inc. v. City of New York, 883 F.3d 45 (2d Cir. 2018), a firearms owners' association and individual holders of premises handgun licenses sued the City of New York and the New York City Police Department‑License Division (collectively, the "City"), the local office authorized by the New York State Penal Code to issue handgun permits in the City, challenging New York City Rule 5‑23(a) on the grounds that it violates the Second Amendment, the dormant Commerce Clause, the fundamental right to travel, and the First Amendment right to expressive association. The district court granted the City's motion for summary judgment, upholding the regulation on all grounds, and the Second Circuit affirmed.

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    Topics: criminal law, handguns, gun restrictions, premises-licensed handgun

    FAMILY LAW: Social Security Dependency Benefits and Alimony

    Posted by Brett R. Turner on Wed, Jun 13, 2018 @ 12:06 PM

    The Lawletter Vol 43 No 3
    Brett Turner—Senior Attorney, National Legal Research Group

         Persons who suffer from serious disabilities can apply for and receive Social Security Disability ("SSD"). When a parent receives SSD, dependency benefits are also paid to the parent's dependents.

         In the context of child support, a majority of states consider the noncustodial parent's SSD dependency benefits to be a form of child support, paid to the child from amounts previously withheld from the income of the parent. They are treated as income for purposes of child support, but the noncustodial parent then gets a dollar-for-dollar offset against child support for the amount of dependency benefits received by the child. Read More

    Topics: family law, Social Security, dependency benefits, alimony

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