Honestly….Who Shoots a Naked College Student?!?!

Posted on October 8, 2012 by zlodmer

You know that something is sorely wrong when a college freshman at the University of South Alabama is shot and killed by campus police for being naked and acting “erratically”.

That’s the story, ladies and gentlemen! Police heard a loud banging noise on the window of the station this past Saturday at 1:23 a.m. When this esteemed campus policeman went out to investigate the strange sounds, said the school, “he was confronted by a muscular, nude man who was acting erratically.”

I’m just gonna’ go ahead and call bullshit right now. Gilbert Thomas Collar, 18, was a freshman at South ‘Bama, and from the picture on CNN, he looks pretty scrawny (Editor’s note: His mom released a statement that he was 5’7’’ and weighed 135 pounds. Those figures make Collar officially underweight according to the relevant national indexes).

Moreover, the dopey spokesperson for the university reiterated that this monster of a naked man kept charging at the officer despite many admonitions to stop.

Anyone who’s ever seen a movie with cops in it knows that the men in blue can’t just whip out their guns and shoot anyone for any reason. There’s a protocol. A checklist. A rising series of situations that dictate when and how it becomes appropriate for an officer to initiate deadly force.

What happened on Saturday was so far from being that type of situation, it’s disgusting.

While “erratic” behavior can sometimes (SOMETIMES) justify the use (SOMETIMES) of deadly force (SOMETIMES…meaning IN RARE OCCAISIONS), there must be erratic behavior combined with some perceived threat. And by perceived threat, I mean credible threat of death or great bodily harm. I’m trying to find what the credible threat was in the case of a naked freshman South ‘Bama student in a “challenge” stance. It seems more like a scene out of a strange John Waters movie.

When the police talk of “credible threat of death or great bodily harm,” what they usually mean is that a suspect is armed. So again, a judge putting himself in the shoes of the average police officer might note that in circumstances where a suspect is *armed*, is acting erratically, and has continually ignored admonitions to stand down, using a gun may be an appropriate means of subduing the suspect.

Compare: Gilbert Coller wasn’t armed. He didn’t have a gun. He didn’t have a knife. He didn’t have a bomb. HE DIDN’T HAVE UNDERWEAR! He was naked!! I don’t care if he was a Mixed Martial Arts champion. If you’re a cop, and you have a gun, even if you think the suspect is acting erratically, it is totally inappropriate to open fire against someone who is naked without first calling in for backup and trying to take him down, cuff him, and arrest him.

Campus police may not be the brightest lights on the force, but I am astounded at the stupidity and gun-happy hijinks of the unnamed officer that have contributed to the death of this young man with the rest of his life in front of him.

To the University of South Alabama: Shame on you. Lawyer up and settle this wrongful death case early. Because if this thing goes to trial, you’re gonna’ let your whole institution go bankrupt.

To those of us who are not campus police: Don’t act all erratic when you’re naked, banging on the windows of the police station. And be very, very concerned with what just happened in Mobile. This is tragedy. This is the very definition of senseless violence and death.

Gym, Tan, Laundry….Lawsuit

Posted on August 23, 2012 by zlodmer

Gym, Tan, Laundry….Lawsuit

There’s quite a “situation” brewing over phrases like “Gym, Tan Laundry (GTL)” and “Twinning”. Pun most definitely intended. MTV’s parent company, Viacom is in the process of thwarting Mike “The Situation” Sorrentino’s plans to capitalize on these catchphrases he made famous playing ~~a suuuuuper-tanned-and-muscular dude with abs of steel and hair of glue~~ himself on MTV’s reality show Jersey Shore.

Specifically, The Situation recently filed paperwork to trademark the phrase “Twinning” with the hope to plaster it on shirts, stickers, folders, and whatever else the tweens need these days as they prepare to go back to school. For those keeping score, “Twinning” is a portmanteau (the act of making two words into one) inspired by a “winning” moment on the show during an escapade with twins. “Twins! Winning! Twinning!” Voila.

But what The Situation may have in the sculpted abdomen department, he clearly lacks in contract-reading ability. Like most every reality “star” before him, prior to filming the inaugural season of Shore, Sorrentino signed a contract which, by its terms, granted the rights in “all ideas, gags, suggestions, themes, plots, stories, characters, characterizations, dialogue, text, designs, graphics, titles, drawings, artwork, digital works, songs, music, photography, video, film and other material whether or not fixed or reduced to drawing or writing, at any time heretofore or hereafter created or contributed by me which in any way relate to ["Jersey Shore"]… .”

So…yeah, basically everything he says, does, writes, eats, poops, and drinks in front of those omnipresent cameras is owned by MTV. Including (but not limited to) “Twinning,” of course.

Here’s the thing about contracts: they’re awesome. The reason we enter into contracts is to dictate actions in the future and spell out the consequences for acting contrary to the agreement (if such penalty isn’t dictated by a statute, ordinance, or other regulation).

We enter into contracts every day. Next time you hastily pull into that parking spot in the mall, before you bolt out to scout the aisles of Nordstrom and Victoria’s Secret, read the back of your parking ticket. Notice that by taking that little ticket, the premises owner explicitly limits its liability—for theft, water damage, fire, or anything else that might go wrong while you diligently search for deals on designer goods and eat soft, fluffy cinnamon pretzel bites. Chances are you didn’t even read the contract. You surely didn’t go over the terms with your lawyer (Shame on you!).

When you got home from the mall, you probably installed the latest version of iTunes. Remember checking the box at the bottom and agreeing to “all the terms and conditions” before the download would commence? That, too, was a contract (with definitions of future conduct and how to proceed when unforeseen things may go awry).

But, for better or for worse, The Situation’s contract is wayyyyyy more valuable than a parking ticket contract or your iTunes contract. The potential for ca$h that may be generated from “Twinning” is a much bigger deal to a great number of important people than the liability potential of someone vandalizing your Honda Civic. And for that reason, Sorrentino was given a detailed contract (and presumably reviewed it with competent counsel) with clear-as-day language in it.

Why he’s trying to misappropriate catchphrases that clearly stopped belonging to him the moment they left his lips is confusing, and it’s ultimately a big waste of time, lawyering, and money.

That said….dude’s got great abs. There is no denying that.

Mental Illness and the Batman Massacre

Posted on August 1, 2012 by zlodmer

Mental Illness and the Batman Massacre

Since James Holmes’ now-infamous killing spree during a midnight showing of The Dark Knight Rises last month, we’ve been fixated on what’s going to happen as our justice system inherits this sad mess.

Our collective reaction to this outrageous act of senseless violence has been a mix of compassion for the victims, questioning of our gun control laws, and curiosity about what the shooter’s fate will be in court. With that curiosity, there has also been much speculation and legal misunderstanding. Flip through any channel and you’ll hear words tossed out like “schizophrenia,” “competency,” “death penalty,” and “first degree murder.” Some of the victims were outraged when the beady-eyed-red-haired shooter waived time for arraignment during his first hearing. One victim, 22-year-old Carli Richards, thinks “death by firing squad would be totally justified” as punishment for the shooter.

We’ve reacted with a great deal of emotion and interest in Mr. Holmes’ fate. But at the end of the day, there are two distinct issues in this case: 1) Is Mr. Holmes competent to stand trial? And, 2) If he is competent, was he legally insane at the time of the killing spree?

COMPETENT TO STAND TRIAL

Competency is different than insanity in that the analysis of whether a defendant is competent has to do with his mental state NOW (not at the time of the incident).

One is considered competent to stand trial if he is able to rationally and factually understand the charges against him, and consult meaningfully with an attorney to aid with his defense. Whether one is “competent” has nothing to do with the merits of the case, the charges against him, or his possible defenses. It is a threshold issue that must be dealt with prior to hearing evidence, arguing substantive motions about the facts of the case, and the like.

When a defendant is found NOT competent to stand trial, the judge essentially puts the case on hold until the defendant is declared competent. At that point, the defendant is sent for diagnosis and treatment until he is declared competent. For example, Jared Loughner, the defendant who killed six and shot Rep. Gabrielle Giffords last year was declared not competent to stand trial and is currently undergoing treatment for schizophrenia in a Missouri prison facility. When he is fit to stand trial, the trial will commence.

THE INSANITY DEFENSE

Whereas the question of competency looks at a defendant’s current mental state, a plea of not guilty by reason of insanity looks at the defendant’s mental state AT THE TIME OF THE INCIDENT.

If a defendant is found competent to stand trial, but he can show that at the time of the incident he was suffering from mental illness so intensely that he could not distinguish between right and wrong, he may plead not guilty by reason of insanity. After the prosecution presents evidence that the defendant committed the act(s) in question, it’s up to the defendant to show proof of his diseased mind.

In the case of the Batman massacre, many armchair legal analysts point out facts that Mr. Holmes was “educated,” and “bright” as evidence that he was not legally insane at the time of the killings. Others are quick to point out that he was seeing a psychiatrist, or that he composed a notebook detailing his planned attack, which tends to show he was crazy.

In reality, assuming Mr. Holmes is found competent in the first place, at this juncture, we (the public) have no idea what the psychiatric evidence will show about his mental state at the time of his heinous act. We want answers, and we want answers now, but unfortunately we’ll all just have to wait and see. Sadly, the process could take many, many months.

MENTAL ILLNESS

For many, Mr. Holmes’ bright orange hair and dazed look in his mugshot and court hearings have brought a discussion of how mental illness impacts our criminal justice system for the first time. To be certain, mental illness is not new to the criminal justice system. Every day, hundreds of mentally ill defendants are tried for a great range of crimes in our courts. Just because one is “competent,” doesn’t mean that he is therefore not mentally ill. Many mentally ill defendants have baseline competency, yet still suffer from a huge range of mental problems and disorders. Likewise, just because someone is mentally ill doesn’t make them legally “insane.” In fact a very small percentage of criminal defendants assert the insanity defense, and an even smaller percentage (infinitesimal) is acquitted under the same.

It’s my hope that, in addition to greater scrutiny of our gun control laws, the Aurora tragedy will highlight mental illness in this country. What is it? Where does it come from? How do we recognize it and treat it effectively before innocent people are killed? The guns certainly killed the innocent victims in Aurora, but the man shot the guns. Let’s learn about the man.

Drug Reform: Coming Soon in CA?

Posted on April 19, 2012 by zlodmer

Drug Reform: Coming Soon in CA?

Earlier this week, a proposal was presented in California that would reduce the charge for possession of heroin, methamphetamine, and cocaine, from a felony to a misdemeanor.

The Senate Public Safety Committee voted 4-2 to approve measure SB 156.

Wait…so…..the public safety peeps in the California senate think that the decriminalization of drugs is…good for public safety?

Without a doubt.

Here’s the deal. As the law stands right now, possession of these “hard” drugs is absolutely fatal for users. Let’s say you’re a cocaine addict. You get nabbed with an 8-ball, you’re definitely going to have some consequences, like jail (or even prison), drug programs, possibly community labor, or some combination thereof. But the truly insurmountable part of the sentence is the formal probation. Formal probation means that your probationary period is “supervised” by the court and by a probation officer. This means that with any little slip up, your butt is going right back into jail or prison. Each time you slip up, the judges and prosecutors become increasingly less patient with you, and the penalties become harsher and harsher.

Formal probation is a vicious cycle for heroin, meth, and coke users. Because of the chemical effect on their systems, the urge to use is stronger than any other urge, want, or need (like following the law, orders of the court or probation, eating, sleeping, or having meaningful relationships with others). On formal probation, there are just too many ways for the users to violate: getting arrested with drugs in their possession; failing a random drug screening; committing some other crime related to their drug use (robbery, burglary, DUI).

Some might say, “OK, isn’t having drug-using criminals ‘on the hook’ for their behavior a good thing? Getting drug users off the streets and into prison means less drugs on the street and less crime in our communities, right?”

Wrong.

Putting a user in the penal system is pretty much like putting a hamster on a hamster wheel. He’s gonna’ just run and run and run until he’s got nothing left in the tank. On formal probation, the user won’t be any more inclined to stay out of trouble because of the potential for incarceration. On the contrary, because he knows that incarceration is all but a sure bet for any misstep, he will go about finding and using drugs with brazen, callous disregard for his community and for the people around him. He’ll use and use and use and use until he’s back in prison.

These users aren’t just users. They’re addicts.

The idea of treating addiction with formal probation and the threat of jail time makes about as much sense as fighting the obesity epidemic with liposuction. Extra fat may be what’s visible, but the dangerous cholesterol levels, unhealthy relationships with food, and diabetes lurking in the wings are still very, very dangerous, and very, very costly to society.

Addicts need treatment. Not jail. Whether addicts are wreaking havoc on our streets or rotting in jail, our current (and very flawed) system does not adequately address the stuff making them addicts—the emotional stuff, the family stuff, the societal stuff. Reducing possession of these now “major” drug possession crimes from a felony to a misdemeanor will take these addicts off of the formal probation hamster wheel, and onto a path of addiction treatment and true recovery. These addicts will get a chance to change the destructive patterns in their lives without the fear of long prison terms.

It costs about $47,000 per year to house an inmate in California. $47,000!! Imagine if an addict received $47,000 per year of counseling, treatment, community intervention, healthy lifestyle coaching, yoga, and other ways to break the vicious cycle of addiction. Hopefully, SB 156 will be adopted and that money can provide treatment for those addicts who so desperately need it. Then we can begin addressing the underlying problems so pervasive in our jails, prisons, and communities. Then, we can really improve public safety.

I’m Getting Pulled Over For DUI….Now What???

Posted on March 29, 2012 by zlodmer

The lights go on. The sirens blare. The muffled voice on the loud speaker directs you to pull over. It’s clear to you that you’re being detained on suspicion of driving under the influence (DUI).

So, now what?

Once you realize you’ve been detained for DUI, you must understand that you’re now under the officer’s proverbial microscope. While everybody knows the famous phrase cops say when they whisk you away in cuffs—“anything you say can and will be used against you in a court of law”—a lot of people don’t know that this “Miranda” right doesn’t formally kick in until you’re in custody (arrested) and interrogated (formally questioned).

In a given DUI investigation, there’s a lot of time that transpires after you get pulled over and before you’re formally detained and questioned about the incident. At this time, you’re in the “investigation zone,” and the cop is watching your every movement like a hawk!

The investigating officer will not only use what you say against you, but what you don’t say, how you say it, what you’re wearing (or not wearing, how you’re wearing it), what you smell like, what your hair looks like, and any other observations he can make to build a DUI case against you.

The officer may not expressly say that these observations can be used against you in a court of law, but if your hand trembles and you look clumsy taking your license from the plastic casing in your wallet and handing it to the officer, you can bet those small facts will wind up in the police report.

So, now what?

If you “had one for the road” and pounded a drink right before you got behind the wheel, let the officer know! It typically takes between 45 minutes and three hours for alcohol to be absorbed in your system. And if you really just downed a drink before getting behind the wheel, then you can and should use the “rising blood alcohol” defense at trial.

Most of the time, that’s not the case. So if it’s clear you’re under investigation for DUI—you’ve been pulled over, you give your license and instead of telling you the violation he observed (i.e. speeding, broken tail light, etc.), the officer keeps snooping around—you can and should exercise your right to remain silent! If the officer keeps shining the flashlight in your eyes, or starts asking you questions about if you’ve been drinking, when you last ate, or asks you to follow his finger with your eyes, kindly refuse to engage in this dialogue and invoke your constitutional right against self incrimination by following these steps:

1) DO exercise your right to remain silent! You do not have to answer any of the questions the officer asks you upon being detained for DUI if you promptly ask for a lawyer!

2) DO submit to a breath or blood test at the police station. You MUST submit to some chemical test at the station or you risk losing your license for a year.

3) DO NOT take a “PAS” (field breath) test. Instead, go to the station and submit to a breath or blood test. Again, not to beat a dead horse…but you MUST submit to some chemical test at the station or you risk losing your license for a year.

4) DO NOT perform any “field sobriety tests.” These are optional, but no officer arresting you for DUI would ever let you know this fact.

5) DO NOT make the situation any harder than it has to be. Be polite. Cooperate. Ask for your lawyer. Make no statements.

And don’t forget to be calm and breathe. Take a couple of deep breaths.

The Law Offices of Zachary H. Lodmer

449 S. Beverly Drive, Suite 201

Beverly Hills, CA 90212

p: (310) 552-1670

f: (310) 552-2536

www.zacklodmer.com

The Law Offices of Zachary H. Lodmer offers both individual and business clients representation in a wide range of legal matters.