Public Drunkenness and Kutztown University Students

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At Cornerstone Law Firm, we’ve helped many Kutztown University students who are accused of crimes. When a college student is charged with public drunkenness or another crime involving alcohol or drugs, the impact on the student’s academic and professional future can be profound. Here are several things that a student at Kutztown University or any other college should consider when deciding what to do about criminal charges.

  1. Your charges can impact professional licensure

Sometimes, college students are quick to plead guilty or accept the initial charges filed without thinking about how such a charge will impact their professional future. If a student wants to be a teacher, a counselor, a police officer or even go into the military, a conviction can end up derailing the student’s plans. An expensive education can be wasted by accepting a plea agreement without considering these aspects.

The reality is, a college student who is 18 or older is an adult, and your charges will remain on your record for the rest of your life if they are not properly disposed of. Contrary to popular belief, expungement is not easy to obtain, and in many situations, it will not be available at all unless it is part of the plea agreement or diversionary program accepted. Don’t just plead guilty! You need to discuss the potential consequences of your plea with an experienced attorney.

  1. You are innocent until proven guilty

In the midst of all of this discussion of plea agreements and reduced charges, let’s not forget the most important fact: you are innocent until proven guilty. Just because a police officer has charged you with a crime doesn’t mean you have to plead guilty to it. Indeed, proving that someone has committed a crime in a court of law is the highest bar in the law. It requires proof beyond a reasonable doubt to a jury of your peers in an environment where the state cannot require you to testify against yourself. This is not an easy task. Not infrequently, police officers and investigators make mistakes in the course of their investigation, misunderstand the significance of evidence, or rely on false characterizations in their charges. An experienced criminal defense attorney can help you to spot these mistakes and challenge them. Sometimes this reduces criminal charges, and sometimes it eliminates them altogether.

  1. Kutztown University might implement their own academic discipline.

College students are often surprised when they find out that their legal problems create academic problems, as well. Charges filed against an individual will trigger an academic investigation by the university, and a dean of student conduct or other campus official might demand an explanation, even before the charges have been resolved.

However, Kutztown University, like any public university in Pennsylvania, is subject to the constitution and its provisions about due process, the right to an attorney, and the right to notice and a hearing. Occasionally, students are told that they do not have a right to be represented by an attorney in a disciplinary hearing. This is not true. As a student a public university, you have your full constitutional rights in disciplinary hearings, including the right to remain silent without adverse action being taken against you. You should not attempt to handle these hearings alone. In most cases, you can insist that the hearings not go forward until the charges are resolved.

  1. Having an experienced criminal defense attorney to help you is a must.

There are plenty of things in life that you can save money on by doing it yourself. Dealing with your potentially life-altering criminal charges is not one of them. An experienced attorney who understands the potential impact of a conviction on your professional future is vital. An experienced attorney can help you to decide whether to fight charges or to seek a favorable plea, and how to eliminate or minimize potential negative consequences for your future.

At Cornerstone Law Firm, we have helped many Kutztown University students to deal with charges ranging from disorderly conduct to drug possession and more. Call us today for a free consultation to discuss your rights.

3rd Circuit Rules on “Empire” copyright infringement

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The 3rd Circuit Court of Appeals released a ruling last week on whether the hit TV show Empire infringed on the copyright of a Philadelphia television writer. In Tanksley v. Daniels, the court ultimately ruled that there was no infringement in this case because there was no actual copying or material appropriation. The background of the case involves the claim of a local Philadelphia writer that the show Empire was largely based on a script that he had written and previously pitched to the executive responsible for empire.

Empire and its similarities

The facts that gave rise to the case are as follows: Mr. Tanksley met with a Fox executive and pitched him a TV show about a black music mogul/executive who is struggling with family drama and a personal health crisis. The Fox executive expressed initial interest, but subsequently turned down the script. A few years later, Empire premiered, exploring some of the same themes.

The court declined to find infringement in this case, despite the similarities. One of the primary reasons for this was that many of the alleged similarities were scènes à faire, and thus, not copyrightable. Scènes à faire are plot elements flowing predictably from a general idea. For example, drunk college students in a movie about college would be scènes à faire. It would be absurd for someone to claim that all college movies were based off the first college movie ever made just because there were drunk college or kids going to class. Instead the court noted that there were two ways to demonstrate infringement. First, by demonstrating actual copying. That is to demonstrate that a unique element that is capable of being protected was actually lifted from the original work and used in the copy. Second, to demonstrate material appropriation. That is to demonstrate that the work taken as a whole by the average laymen observer would be perceived to be a copy of the original.

Interesting Legal Developments in Tanksley

The court rejected that expert witnesses were necessary to further develop the record in determining whether there was infringement. Rather the court noted that the average observer could tell if a painting was copied, if a song was ripped from an original, or if a TV show’s plot had been lifted entirely from another. The court went to great lengths to demonstrate, in narrative form, the plots of the two shows side by side demonstrating that the similarities were superficial at best. Rather most of the local producer’s claim was based on the existence of prototypes, such as a black record executive who is struggling with family drama. A black record executive, the court concluded, is a classic example of a “prototype” that cannot be copyrighted, and family drama would an example of scènes à faire. Both of these are unprotectable elements and not subject to copyright protection.

Another unique element about this case is that the 3rd Circuit affirmed a dismissal on a 12(b)(6) motion. 12(b)(6)—dismissal for failure to state a claim upon which relief can be granted—is usually only granted where there is no need to develop any testimony or other facts on the record. The court said it was no error for the district court to have looked at the two TV shows referenced in determining the 12(b)(6) motion. Ordinarily anything outside of the pleadings is not considered in a rule 12 motion, but the court ruled that where the Complaint is based on two works of art, those works of art could be considered implicitly a part of the Complaint as if they were attached themselves.

Conclusion

This case is part of a growing national trend establishing that copyright infringement claims that do not have merit can be dealt with on 12(b)(6) motions. The ability to dismiss the Complaint earlier in the process will likely have more defendants fighting aggressively and early. This is good news for large companies who are often the target of copyright trolls, who can now have their cases dispensed with more efficiently. This case also lays out the “prototype” exceptions to copyright protection in a helpful way, and will likely be cited for this proposition for years to come.

End of August

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It’s been a busy month at Cornerstone Law Firm. Attorney Crossett spent a week in a trial in Berks County over unfair trade practices, and also successfully brought several insurance claims to favorable conclusions. He has been advising a company on compliance with state regulations, and is defending several federal lawsuit.

Attorney Ready achieved a large settlement for a serious Berks County car accident victim, and beat criminal charges for several clients. In addition, he favorably settled a large contract claim against a client, and is pursuing another client’s right to retirement funds.

Most excitingly, Cornerstone Law has hired two new employees! Matt has already joined us, and Tiffany will be coming aboard next month. Their information will be posted on the staff page.

We hope your August has gone well and that you’ve been productive! As we head out of summer and into fall, let us know how we can help you, your family or your business to solve problems.

March 2018 Update

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The month of March has been a busy one at the Cornerstone Law Firm! This month, Attorneys David Crossett and Joel Ready have been advocates for a variety of clients, dealing with a broad range of cases and scenarios.

After one client experienced physically painful repercussions from a car accident, Attorney Crossett settled the case with a six-figure settlement. This financial relief will help compensate for personal difficulties the client has dealt with as a result of the accident.

In another case, Attorney Ready acted on behalf of a client who was charged for remaining silent when interrogated by the police (which is your right, according to the 5th Amendment of the Constitution). The charges were dismissed after Attorney Ready filed an “omnibus pretrial motion” and negotiated with the district attorneys’ office. Ultimately, the case was dismissed completely, and the client was cleared of wrongdoing. When a different client was charged with a DUI, Attorney Ready negotiated a favorable plea argument on behalf of the individual, helping the defendant avoid jail time.

Of course, not everyone deals with traumatic experiences or gets charged for a crime, but when life surprises you with difficulties, the Cornerstone Law Firm is here to help. Contact us today to let us know how we can serve you.

3 Reasons You Need a Will

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Everyone needs a will. Every year, individuals die without wills, and their families deal with a great deal of unnecessary headache, stress and sorrow because of the unpreparedness of the family member who passed away. But despite the fact that everyone needs a will, many people don’t know why. So here are 3 reasons you should have a will—yes, you!

  1. Wills dictate who takes your possessions.

This is the obvious reason, of course. A will is the document that decides who takes your possessions and your property at the time of your death. Even if your family knows who you were closest to, the law will not necessarily pass your possession to that person. A will is a necessary and easy way to dictate who will take your possessions upon your passing, and, perhaps more importantly and in some situations, who will not take your possessions when you pass.

  1. Wills determine who takes custody of your minor children upon your passing.

This is one of the more frightening and concerning potential outcomes that a will helps to prevent. When you pass away, a court will be in charge in determining who will take custody of your minor children. A will provides clear and strong evidence of who it is you intended to have your children, and this will be upheld by the courts absent extraordinary circumstances. If you do not do this, your children could potentially be put in midst of a protracted legal custody battle. This is true even if everyone in the family is clear on who should have custody of the children or who you wish to have custody of the children. A court will still have the final say because no will was left to establish who you wished to have custody of your children.

If the other parent of your children is in the picture—married to you, or otherwise sharing custody with you—then this is not as much of a concern; the court will allow custody to the other parent. However, if both of you are to pass away suddenly, this would still be a potential problem that a will can solve. Simply put, when it comes to something as important as custody of your children there is no reason to take any chances.

  1. Wills determine who will be the Executor or Executrix of your Estate.

These may sound like fancy legal terms to many readers, but selecting who will be the Executor (or Executrix if a female) of your Estate is a very important decision. First, it selecting your Executor it is important to consider who will carry out your wishes at your death. Second, in selecting your Executor, you are selecting someone that will make very important decisions if there are ambiguities in your will or situations that you could not have predicted. Your Executor may also be responsible for setting up Trusts for your children if they are still minors and dealing with other details. Third and finally, someone has to take the responsibility to deal with your Estate, and that individual will in all likelihood be paid from your Estate for their time and trouble. Making sure that the person who is going to receive some payment from your Estate is someone you trust, respect and appreciate is important.

Conclusion: Wills are For Everyone

Wills are important for every individual to have. You need a will to handle the affairs of your Estate after your death. But in some cases, a Trust, such as a Revocable Living Trust is a better option. Speaking with an estate planning attorney is important, and it shouldn’t be put off. Call the Cornerstone Law Firm today and speak with one of our attorneys about getting started on your will.

National Park “First Amendment” Signs Should Come Down

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Last week, after observing signs in National Parks purporting to limit the exercise of the First Amendment, Joel Ready sent the following letter to Ryan Zinke, Secretary of the Department of Interior, and to Michael Reynolds, the director of the National Park Service.

Dear Sec. Zinke:

At the end of August, I honeymooned with my wife in the Smoky Mountains National Park. The Smokies are a sort of home away from home for my family. I spent many summer weeks there growing up, and of course, my wife and I now have wonderful memories of the park as well. The park has earned its place as the most visited park in America, with its lush beauty and unique wildlife. We had the opportunity to quietly observe two black bears while we were there, as well as to visit Clingman’s Dome and Cades Cove, among other sites.

However, I write to let you know of a concern I had while visiting the Smokies. During our trip, we stopped at one of the visitors’ centers,[1] where we were confronted by [the sign pictured above].

As you are probably aware, Mr. Secretary, the First Amendment cannot be confined to a small portion of government-owned ground. The First Amendment is designed to prevent the “abridgment” of speech, no matter where it occurs. Nowhere is this protection stronger than on government property. While the government is free to engage in reasonable “time, place and manner restrictions,” such restrictions must be content-neutral, narrowly-tailored to advance a significant government interest, and leave open ample alternative channels of communication.[2] Parks are “quintessential public forums [where] the government may not prohibit all communicative activity.”[3] I believe that no compelling government interest is at play here, and that these zones in front of visitors’ centers[4] (making up only a fraction of a percent of the total park) do not constitute a “narrowly-tailored” solution in any event.

The Smoky Mountains National Park, like our nation, was born in the cauldron of political dissent and protest. When the federal government used the powers of eminent domain to seize the land in the 1920s and ‘30s, a number of evicted local families protested in different ways, including protesting FDR’s speech in the park (which was, of course, full of political statements, as any Presidential speech would be).[5] Political speech in our national parks is a proud tradition, and the federal government has no place in attempting to curb speech by creating “zones” where it is acceptable or unacceptable to speak.

In our travels through the park, we encountered a number of violations of this sign, including Jehovah’s Witnesses with displays who were handing out tracts about their faith, the National Park Service’s signs throughout the park arguing for better environmental protection legislation and lauding past EPA efforts, and a small child protesting to her mother that she was done with her sack lunch (most of her sandwich was still uneaten). From the loftiest sentiments (those about religion) to the most trivial (private disputes between mother and child), all of these are speech protected by the First Amendment from government abridgment, and all of them are presumably prohibited by the sign at the visitors’ centers.[6]

I have no reason to believe any enforcement action has been taken against groups or individuals based on these signs. Nor do I harbor any suspicion that you personally authorized these signs. Rather, like so many things, our liberties are slowly eroded by the well-meant actions of individuals attempting to prevent pesky protestors from marring natural beauty or causing disruption. But protests and political speech do not mar natural beauty as quickly as oppression. I hope you will not think I overstate my case with the word “oppression”—rather, the attempts of government to snip at the fringes of free speech are always the first signs of the erosion of natural liberty. The American people are free to speak and advocate for their beliefs on government property, and these signs should come down.

With great respect and appreciation, I write to request that you remove these signs from all National Parks and any other similar government-owned properties where they may be found.

[1]              The visitor’s center we visited was Sugarlands Visitors’ Centers, where we encountered very kind and helpful rangers and other workers.

[2]              The caselaw on this point is voluminous, but one example should suffice: Perry Educ. Ass’n v. Perry Local Educ. Ass’n, 460 U.S. 37, 45 (1983).

[3]              Id.

[4]              I was unable to ascertain whether these signs are present at all visitors’ centers in the Smokies, or at all parks nationally, or whether this one visitors’ center was an anomaly. I presume that they are present nationally, but my argument is not affected if this visitors’ center is the only example.

[5]              Both silent footage and text of the speech survive. The footage can be viewed on youtube: https://www.youtube.com/watch?v=RnJbJbcr3jw. The text of the speech is also available: “Address at Dedication of Great Smoky Mountains National Park.,” by Franklin D. Roosevelt, September 2, 1940. Online by Gerhard Peters and John T. Woolley, The American Presidency Project. http://www.presidency.ucsb.edu/ws/?pid=16002.

[6]              Political t-shirts, personal conversations, bumper stickers on cars and license plate messages, and “pillow talk” while camping under the stars are all presumably prohibited by the sign, as well.

Film the Police

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Filming the police has become an act of political speech. Police actions caught on camera have played an enormous role in debates over police brutality and practices over the last twenty years, most infamously in the case of Rodney King. In the wake of such landmark events, many cities and police departments have tried to crack down on and prevent the filming of police actions. In Fields v. City of Philadelphia, released yesterday by the Third Circuit Court of Appeals (the Federal Court that governs Pennsylvania, New Jersey and Delaware), the court ruled that the First Amendment protects your right to film the police as they do their job, and that a city may not prohibit such filming or photographing of police actions, because the First Amendment to the United States Constitution protects your right to film and photograph the police.

The Camera as Eyewitness

In a beautifully-written opinion, the court ruled that you have the right to record even run-of-the-mill police encounters, because one never knows when a shot might be important. The First Amendment gives you the right to preserve an eyewitness account of what you’re seeing, even if you’re not sure that you’ll ever use that footage.

To record what there is the right for the eye to see or the ear to hear corroborates or lays aside subjective impressions for objective facts. Hence to record is to see and hear more accurately. Recordings also facilitate discussion because of the ease in which they can be widely distributed via different forms of media. Accordingly, recording police activity in public falls squarely within the First Amendment right of access to information. As no doubt the press has this right, so does the public.

Footage Need not be “Expressive”

 The court rejected the contention that the individuals caught filming the police had to prove that they were creating some sort of expressive art protected by the First Amendment. The very act of filming was the protected conduct.

This aspect of the ruling—that you don’t have to prove the artistic value or expressive nature of your footage or picture for it to be protected by the First Amendment—will have broad application in other contexts. Students who film a teacher’s interaction with them at school, footage of a DMV official rejecting an applicant on dubious grounds and even pictures taken on the street of public events are all constitutionally protected, even if it is unclear at the time how such media may be used. This right extends to the private citizen in equal force as it does to the press.

A few exceptions

The court left open the possibility that there are limits to the time, place and manner in which you can film the police. Recording a police officer’s conversation with a private informant, getting in an officer’s way or otherwise interfering with police activity might be unprotected conduct which could properly lead to an arrest.

But the court left these possible exceptions general, and the most important ruling in this case will be that you have a right to record your public servants as they go about their jobs or interact with you and others. You have a right to film the police.

Pick up Your Phone

So keep your phone out when you run into the police, or when you see others interacting with them. Allowing the public the opportunity to see how police work is done is an important part of making our justice system better, and of advocating for a better society. The First Amendment protects your right to do just that.

 

Police Dashboard Camera Videos Must Be Released

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Police Dashboard Camera Videos Must be Released

Police dashboard camera videos are available to the public pursuant to Right to Know requests in Pennsylvania, says the Supreme Court of Pennsylvania. The ruling in Pennsylvania State Police v. Grove, which came down Tuesday, affirms that Motor Vehicle Recordings (MVRs) are subject to disclosure unless specific content is proven to be confidential.

Unfortunately, this is not the law in all states, and even here in Pennsylvania, the state legislature is taking steps to expand police power to protect videos from disclosure. Yet, as we’ve seen in the Philando Castile case and others, footage capturing officers in crucial moments of fatal encounters can sometimes be the only witness against an officer’s word. Such footage can go viral and have a tremendous impact on the public’s perceptions of law enforcement.

Yesterday, Cornerstone Law’s Attorney Ready, who covers the Supreme Court of Pennsylvania for SCOPA Review, was asked to comment on this case for 69 News out of Allentown. You can watch the interview here.

Does the First Amendment Give You the Right to Record Police?

Another case coming from the Federal Court of Appeals for the Third Circuit will have significant implications on how we monitor police. In Fields v. City of Philadelphia, the Federal Court is called upon to decide whether the First Amendment allows the City of Philadelphia to prohibit the recording of police while they perform their jobs.

The simple fact is that while we need police as a society, police are an extension of government power–and where there is power, there will always be corruption. “Power corrupts, and absolute power corrupts absolutely.” Giving our government absolute power to determine what information can be released, or who can record the government’s actions is corruption. Monitoring our government is a right inherent to our republic, and must be preserved.