Can making threats on social media land you in jail?

On June 1st, the US Supreme Court addressed the criminality of violent statements on the internet in its decision in Elonis v. US. The majority opinion left more questions than it answered by simultaneously dismissing the lower Court’s conviction of Elonis and not establishing a clear set of requirements needed to satisfy a conviction.

Anthony Elonis, of Pennsylvania, was initially convicted for making violent Facebook posts including death threats to his wife, thoughts of shooting up an elementary school, and his murderous fantasies about an FBI agent. These statements were published on his 

Facebook page after his wife and two children left him. Elonis’s argument that his words were fictitious song lyrics and his decision to post them was meant as therapeutic response to his anger.

The trial judge ruled that a “reasonable person” standard was sufficient for conviction, under which a reasonable person would interpret the posts as a serious threat to inflict harm on another person.

The U.S Court of Appeals in Philadelphia agreed with this decision, adding that his subjective intent was irrelevant. In other words, it didn’t matter if Elonis meant for his posts to be a joke or a form of therapy.

The US Supreme Court reversed these earlier decisions that based the conviction solely on how the message is received. The opinion was limited in clarity, only telling us what the law is not.

It is not against the law to make statements on social media that others may perceive as threats. Therefore, the “reasonable person” standard was not sufficient for a conviction. The Justices agreed that additional criteria needed to be met for a conviction, but did not set-forth any standard of what that should be.

The bottom-line is that the criminality of threats on social media remains in question. If you find yourself facing criminal charges, including making a violent statement online, you need to contact Fausone Bohn LLP immediately. The sooner you retain us, the sooner we can start working for you. We understand the Michigan criminal justice system and can make the difference between conviction and keeping your freedom. Visit our contact page for more information: http://www.fb-firm.com/Contact-Us.shtml

Follow this link to see the full article: http://www.washingtonpost.com/politics/courts_law/supreme-court-throws-out-conviction-for-violent-facebook-postings/2015/06/01/68af3ee0-086b-11e5-a7ad-b430fc1d3f5c_story.html

Reminder: Changes to Michigan FOIA Law Coming Next Month

New FOIA legislation passed last December in Michigan will take effect next month on July 1, 2015 (PA 563 of 2014). At this point, municipalities should begin finalizing their preparations for these significant changes, which relate to how they charge for responses to Freedom of Information (FOIA) requests now.

While the changes are meant to shed some sunlight on government and increase transparency, the FOIA amendments place many requirements on public bodies.

The changes require local governments to establish specific written procedures and guidelines for FOIA requests, including a separate written summary informing the public on how to submit FOIA requests, how to understand the responses to FOIA requests, deposit requirements, fee calculations, and avenues for challenging and appealing a potential denial of a request.

It is important to note that these written guidelines must be in place in order for a public body to collect deposits and charge fees allowable under FOIA.

Most municipalities now have websites, and it is required to post the procedures, guidelines, and written summary on the website. In addition, it is required to provide free copies of the procedures, guidelines, and written summary upon request, and to include a free copy, or a website link to the policies, in all FOIA responses.

The procedures and guidelines must include a standard form to detail the itemization of any fee the municipality estimates or charges under FOIA. The itemization must clearly list and explain each of the six fee components authorized under the new legislation. These six components include:

(1) the costs of labor to locate or examine the records, (2) to separate or delete nonexempt information, and (3) to make copies or transfer digital records; (4) the cost of computer discs or tapes, or other digital media, if public records were provided on non-paper physical media; (5) the cost of duplication or publication, if paper copies were provided; and (6) the cost of postage.

There are a bevy of other changes included in the amendments, including a 10-cent ceiling on charges for paper copies of public records. Municipalities may also provide public information on the website, and, instead of providing paper copies (unless requested) they can direct a FOIA requestor to that specific website link.

One of the more notable amendments relate to the significant increase in penalties for public bodies violating or failing to comply with the act. Fines that previously ranged from $500 to $2,500 have now increased to $1,000 to $7,500.

Luckily, some municipalities already have some of these new requirements in place. However, now is the time to translate those practices into written guidelines for the public, in addition to other house-keeping items to come into full compliance with the FOIA amendment by July 1.

This blog is meant only as a brief summary of what is a policy-wonk piece of legislation. Fausone Bohn, LLP attorneys work with several municipalities across southeast Michigan and western Wayne County. Please don’t hesitate to contact us for consultation. 

An Overview of Implied Consent and the Implications of Refusal

Mark Mandell, Esq.

Following the U.S. Supreme Court’s decision in Schmerber v California, Michigan was able to enact the Implied Consent Act in 1967. Originally, it required motorists to take a blood and/or urine test at the request of police officer when they are arrested for drunk driving. In the time since, the Act has expanded to cover a wide range of violations, including: felonious driving, manslaughter, operating while visibly impaired (OVI), child endangerment, and most recently operating a vehicle with any amount of controlled substances.

Most often, police departments prefer a breath test in order to avoid the foundational requirements of a blood test. In some instances, such as a serious personal injury accident, the breath test may be unfeasible, and so a chemical test is requested by the police officer.

While it is possible to refuse the officer’s request, it is important that you are aware of the potential penalties of doing so if you are found to have a blood alcohol content (BAC) over 0.08. Currently, there is an informal guideline called the “One-Hour Rule,” in which a person has one hour to decide to refuse or submit to the test. Waiting over an hour is considered a refusal.  Whether or not a person is over the legal limit, refusing the test allows the police officer to confiscate their picture license. After which, the officer will most often seek a search warrant and will ultimately get their evidence one way or another.  If the person is found to be intoxicated, their license will be immediately suspended.

The alleged offender and their attorney have 14 days after the date of arrest to request a hearing. If this is not done, the offender will immediately receive 1-year suspension on their license and 6 points on their driving record if he or she is a first-time offender. If it is their second offence in 7 years, the penalty will be a 2-year suspension on their license and 6 points on their driving record. Both suspensions will take effect five days after the decision has been mailed. Since these penalties are severe, prompt action is crucial.

The hearing will take place 45 days after the arrest, barring an adjournment from either party. There are only four relevant matters to the hearing: Did the police officer have reasonable grounds to believe the alleged offender committed a crime in which implied consent was warranted? Was he or she placed under arrest for this crime? Did the officer provide the alleged offender with their chemical test rights? And finally, did he or she reasonably refuse to submit to a chemical test requested by an officer?

If the alleged is found guilty, he or she will be subject to the same penalties above depending on whether this is their first offence or not. A first-time offender can petition the circuit court for a restricted license in order to travel to and from work, probation, and school, among other destinations listed in MCL 257.319(17). In addition, the circuit court has the power to affirm, modify, or set aside a suspension for a first-time violation case. A different decision will be contingent on new evidence that could not have been reasonably produced for the initial hearing, an error of law, or a material mistake of fact by the hearing officer.

Second-time offenders are not able to petition for a restricted license and cannot appeal to the circuit court for an alternative decision.

MAT2 Program Connects Michigan Students with High-Paying Skilled-Trade Careers

At the firm’s most recent “Lansing to Local” event, Stephanie Comai, Director of the newly created Michigan Talent Investment Agency, spoke about an issue on the minds of many local businesses we work with: Expanding opportunities and training in skilled-trades and high-tech manufacturing in Michigan, especially for students and young people.

Our attorneys have also been involved in the Livonia Industrial Council, which is working to boost interest among local students and their parents in the skilled-trades and high-tech manufacturing jobs.

From the Livonia Industrial Council and Ms. Comai, we learned about a new effort that will benefit Michigan manufacturers: MAT2 – the Michigan Advanced Technician Training Program.

MAT2 addresses two critical issues facing the manufacturing and technology industries: (1) a widening skills gap, and (2) an aging workforce. This initiative functions similar to an apprenticeship program, where students alternate between classroom instruction and on-the-job training, gaining the necessary hands-on skills and real-world experiences for them to become a successful and productive member of the workforce.

If you are a business or a student interested in this program, you can learn more here: http://www.mitalent.org/mat2/

The program gives students the skills they need to succeed and enter into high-paying, long-term careers. And, it gives businesses a well-trained employee who is ready to hit the ground running from day one after leaving the training program.

While this program has achieved great success in just a few short years, we have found it is not as well-known among local businesses as it should be. Please share and help spread the word!

Fausone Bohn, LLP is a Northville, MI based law firm involved in several community organizations throughout Western Wayne County. We believe our business clients are better-served when our attorneys have a more complete understanding of the issues they face.  If you are a local business in need of legal consultation, don’t hesitate to contact us at (248) 468-4536 or online at www.fb-firm.com.

Report Shows Seniors Abused at 1 in 3 Nursing Homes

Daniel J. Williams, Esq.

The United States has over 15,000 nursing homes, and according to a report, elder abuse occurs at 1 in 3 of them. The study showed that over 5,200 nursing homes were cited for about 9,000 instances of abuse over a two year period.

In over 1,600 cases, nursing home residents experienced serious harm to place the resident in jeopardy of serious injury or death. Yet, despite the horror stories, the nursing home population is only projected to grow significantly.

Some of the most common problems in nursing homes include untreated bedsores, inadequate medical care, malnutrition, dehydration, preventable accidents, and inadequate sanitation and hygiene.

The bottom line is that no one is immune to elder abuse at a nursing home, especially given these numbers. Even the famous novelist Harper Lee, author of To Kill A Mockingbird, has been subject to an alleged case of nursing home abuse – check out our previous blog to learn more on that case: Click Here.

The homes cited by the study for instances of abuse accommodate some 550,000 residents, many of whom live in the 11,000 for-profit nursing homes across the country. Many of those for-profit businesses are receiving federal funds.

The federal government is the biggest contributor of nursing home care, mostly through Medicaid, a joint federal-state health care program for the poor, and Medicare, the federal program for elderly and disabled people. Federal health and safety standards are designed to protect nursing home residents from abuse.

To enforce the standards, the U.S. Department of Health and Human Services contracts with the states to conduct annual inspections of nursing homes. The states also are required to investigate individual abuse complaints. The report's statistics were derived from these state inspections.

The industry has cited money as an issue, in particular in their ability to attract and retain skilled staff. The average hourly wage for nursing assistants ranges from $7 to $9 per hour. Some have argued that non-profit homes, often run by community or religious organizations are better at serving residents and caring for their needs.

However, whether it is a not-for-profit home, a for-profit home, and no matter the age of your loved one, they deserve to be treated with dignity and respect. And while nursing home care has improved over the years, as this report shows, instances of atrocious abuse still occur and are prevalent.

Daniel J. Williams is an Elder Abuse Attorney with Fausone Bohn, LLP. The firm has former prosecutors and experienced attorneys who can help you and your family right the wrongs done to your loved one, whether it be nursing home abuse or financial exploitation. Call the Metro Detroit Elder Abuse attorneys today, at (248) 468-4536, or visit us online at www.fb-firm.com.

Read more at ABC News: http://abcnews.go.com/US/story?id=92689&page=1

Attention Kayakers: New Paddling Guide Available for the Detroit River

There is a stereotype of environmental lawyers as your typical outdoorsy person, and I definitely fit the mold. And with the winter ice finally melted, I am excited to begin the annual rituals of kayaking and canoeing trips.

For outdoor enthusiasts looking to plan their paddling trips along the Detroit Heritage River Water Trail, I wanted to share this great new resource. An updated Detroit River Paddling Guide was unveiled last week.

You can download or view the updated map here:

http://www.downrivergreenways.org/home/reports-and-products

The document also includes guidance for local municipalities who are interested in developing paddling amenities, and it highlights opportunities for infrastructure improvements along the Detroit River.

The new guide offers detailed descriptions of each location, a key feature in designing your outdoor adventure. The guide also features the newest launch sites, updated information on existing locations, safety suggestions, and resources for local paddling groups. Recommended paddling routes are also highlighted, presenting not only mileage, but water time and possible conditions as well.

I have downloaded my guide, and I highly recommend it for other paddlers looking to see the Detroit River and the rest of the Heritage River Water Trail.

Learn more here:

http://msue.anr.msu.edu/news/new_paddling_guide_available_for_metro_detroit

Paul Bohn, partner at Fausone Bohn, LLP, has established a strong reputation in Michigan as a leading practitioner in environmental law. Mr. Bohn has been selected as a Michigan Super Lawyer since 2010 and was named one of the Top Attorneys in Michigan in 2014 by Crain’s Detroit Business. If you need consultation, don’t hesitate to contact us at (248) 468-4536 or online at www.fb-firm.com.

Edsel Stallings: A True American Hero

Meet Former Marine Sgt. Edsel Stallings, the latest Veteran Fausone Bohn and Legal Help For Veterans have the honor of assisting.  Now 93 years old, Stallings is one of the few remaining members of the Montford Point Marines. This distinguished group was the first all-black Marine unit that served in the Pacific in World War II. Overcoming segregation at home and the enemy abroad, the Montford Point Marines were finally honored for their service in 2011 with the Congressional Gold Medal. The Medal is awarded by Congress as the highest expression of national appreciation for distinguished achievements and contributions. With this recognition, Edsel and his unit join an elite group of African American medal recipients including Rosa Parks, Dr. Martin Luther King Jr., The Tuskegee Airmen, Joe Louis, and Jackie Robinson.

The Medal is planned to be displayed permanently at the Smithsonian Institution so that everyone has a chance to hear this amazing story and pay their respects to these heroes.

We want to thank all Veterans for their service to our country and would be honored to assist anyone who is seeking veteran benefits from the VA. Contact Legal Help for Veterans, PLLC today to find out how you or a loved one can receive the benefits you deserve: http://www.legalhelpforveterans.com/

Check out the remarkable story of Stallings and the Montford Point Marines here: http://archive.freep.com/article/20111111/NEWS06/111110383/Overlooked-decades-Montford-Point-Marines-awarded-top-medal