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Old 04-08-2018, 06:16 PM
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Law and bodybuilding: Assault

LAW AND BODYBUILDING: ASSAULT
by Grendel

Disclaimer: This article does not constitute valid legal advice, in all cases consult with an attorney in your state. This article draws upon the common law and the codified concepts contained in the Model Penal Code and the Restatements.
Ok, why the hell would I start to write a column about the law as it applies to us, the bodybuilding community? Well, if you have to wonder why then you probably have never noticed the Anabolic part of Anabolic Extreme. But, truthfully, I have begun my education as a lawyer and I am learning a lot of interesting things that I think the general public is rather unaware of and I felt that I would be doing everyone a service to expound on these principles. I hope to cover topics like search and seizure, what constitutes various crimes (assault, battery, rape, possession of controlled substances) and to distinguish between the law of torts and the criminal law. I am going to take a stab at this series and if the feedback is negative I will stop.

The topic I want to discuss with you today is assault. This word is thrown around constantly “I was assaulted by a man at the club, those smells assault my senses, etc”. These are all common usages of the word but legally, assault is much more specific. Before I go into the details of what constitutes an assault I need to explain the distinction between criminal and civil law. As OJ discovered, you can be charged with a crime and escape but still be held civilly liable; not only is the burden of proof different in these two areas of law, but also the penalties are different. Lets take a battery (ill explain that in more detail next week, but let is suffice for now that a battery is “harmful or offensive contact”) as our example.

Jason Meuller and I are fighting over the last piece of chicken breast. I stab him in the throat with a fork and then eat the chicken breast. Jason survives. He can bring a criminal action against me (or if a cop witnessed it, I could be brought up on criminal charges) and he could sue me for the tort of battery. If I lose the criminal case I may go to jail. If I lose the civil case I will have to, generally, pay up. Hopefully, this clears up something about the difference between the two types of law. I should add that I could lose both cases, win both, or lose one and win one. So as you can see, it’s quite possible to get ....ed doubly. Now, before you go off thinking about the “double jeopardy” clause (and don’t watch that movie) that says you cannot be tried twice for the same crime; that does not apply. You cannot be charged twice for the same criminal offense (unless new evidence comes to light) but you can be charged criminally and civilly.

Back to the topic at hand, assault. Assault is defined to be “the placing of someone in apprehension of imminent harmful or offense contact”. The key word is apprehension. Apprehension does not mean fear, it means you think you are about to be hit or touched offensively. You do not have to be afraid! If someone calls you over the phone and says they are going to rape and kill you, which is not assault because that person is not right there in front of you. Likewise, if I tell Mike Tyson “Mother....er, I am going to knock your head off” and I cock back my fist to punch him and miss it is still assault even though Tyson sure as hell isn’t going to be scared of me.

Ok, so you make a threat and as a big brawny bodybuilder that threat is very likely to create fear. If you make a menacing gesture you have assault because you create the impression you are about to strike someone. Now, listen carefully. The standard used, legally, to determine if someone is justified in thinking they are about to be hit is an subjective one, it depends on what a reasonable person in a similar circumstance would think.

Unfortunately there is a bias in this world against large men (well, .... that, men in general but guys who workout are “not the first people you want to pick a fight with”) and it is likely that what might normally not be an action that creates apprehension from someone who is 145 pounds soaking wet will be construed as such when a 250 pound monster so much as cracks his knuckles.

Now, I have been talking about the tort of assault. Criminal assault has a different definition then what I have been talking about. I am going to talk about the Model Penal Code definition of the crime of Assault because most States have adopted its approach to the definition of the specific crimes (California generally has not and New York is a hybrid, using both common law and the Model Penal Code to form its definitions).

Under the Model Penal Code, a person is guilty of simple assault if he attempts to cause or purposely, knowingly, or recklessly causes bodily injury to another. The Model Penal Code goes on and on defining each element of assault and the various degrees of assault. Generally, simple assault is a petty misdemeanor and aggravated assault is a second or third degree felony.

As you can see, the criminal law is not concerned with creating apprehension. If you swing a punch at someone its criminal assault. If the person sees the blow coming its also the tort of assault. If you connect, you can add the tort of battery to your civil suit and be pretty sure the criminal assault charges are going to stick.

Let me say this, when I first really read over these statutes I was amazed at how damn lucky I have been. Pretty much anything you do physically to another person could be a crime. I think about all the times I have told people I would kill them or even hit a person in a drunken fight and it is a miracle I am not locked away.

What can you take away from this article? Maybe nothing! Or maybe, next time someone is curling in the squat rack you wont say “move it or I will smash you to pieces” and pick up a heavy dumbbell and lumber towards them. If you do and if they sue, give ole Grendel a shout!!

LAW AND BODYBUILDING: THE ARREST PROCEDURE
by Grendel

Disclaimer: This article does not constitute valid legal advice, in all cases consult with an attorney in your state. This article draws upon the common law and the codified concepts contained in the Model Penal Code and the Restatements.
Now I sincerely hope that none of my readers ever get arrested for anything. However, it seems, given the nature of our members, that one or two of you may be arrested at some point in the future. Therefore I thought I would outline, step by step, the criminal justice procedure from beginning to end. It is a rather long process but I have broken it down into about 17 steps.
1) The Report of the Crime
This occurs when the police (or law enforcement agencies) receive information of a possible crime. This can happen through the observations of an officer or “concerned” citizens. Now, if it seems like that the crime did happen then the police would file that in their police files as a “reported crime”. The most commonly reported crimes involve taking or destroying property (60%). The most serious sorts of violations, felonies, are reported very rarely (4-0.5%)
2) Pre-arrest investigation
First, the Police must determine
• Whether crime was committed
• If it was, whether there is enough information pointing to a particular person’s guilt to justify arrest and charges.
If a police officer actually observes crime being committed and makes an arrest then, investigation is no more then officer’s initial observation. For suspicious activity or a report by an “interested citizen” a.k.a. “snitching weasel”, officer will seek further information. The Officer will use different techniques including the temporary detention of suspect on the street or at home. Questioning will range from identification to accusation. Note that while the suspect is in custody, it is still not an arrest. Furthermore the Officer may do any of the following, depending on the circumstances surrounded in the detention.

a) Searching or frisking of suspect when the crime involves violence or some other reason to believe suspect armed
b) Searching the car of the suspect (small chance of this actually happening, and you don’t have to let them do it without a search warrant.)
c) Interviewing of witnesses (including victim)
d) Examination of the crime scene and collection of physical evidence for forensic analysis.
e) Contacting informants (generally for professional criminals)
Now, a search warrant, a writ signed by a judge, is required for
a) Searching or frisking of suspect when the crime involves violence or some other reason to believe suspect armed
b) Searching the car of the suspect (small chance of this actually happening, and you don’t have to let them do it without a search warrant.)
On an interesting note, the search warrant must be extremely specific. If you live in Apartment 292(a) and the warrant if for 292(b) because the Officer didn’t write down the entire address, then guess what, when they kick down your door…all that evidence is inadmissible!
3) The Arrest
Generally the arrest occurs when the offices takes the suspect into custody in order to transport him to the station and charging him with a crime. Most arrests are made on officer’s initiative, although a few may be authorized in advance by a judicially issued warrant. Only 20-30% of arrests are for felonies. Alcohol/drug offences are the highest category, followed by property offenses. 20-30% of those arrested are juveniles
Now, when you are arrested, do not say a ....ing thing. Don’t try to be nice, don’t try to be apologetic, and don’t open your mouth. Let them search you, and don’t mouth off or anything. When they arrest you they are going to “read you your rights”, the most important of these is the right to remain silent. Believe me, the cops are not your friends and anything you say, trying to get in their good graces, is not going to work. This goes for traffic tickets as much as it goes for felony possession of steroids.
Remember to that COPS CANNOT MAKE DEALS. They have no authority whatsoever to offer you a reduced sentence, to “go easy on you, “ or anything like that. Only the District Attorney can make you a deal, so no matter what the cops try to convince you, do not open your mouth. Cops can lie in an attempt to get you to confess, they can say they have the crime on videocassette and 20 eyewitnesses and if you confess now then you will get a lighter sentence. Do not cooperate with them in this manner. I have friends who are cops who brag about how the induce their suspects into confessions based on blatant lies.
Another thing, you have the right to an attorney, but the police are not going to just automatically get one for you. In fact, they try to get you not to see your attorney. The first and only words out of your mouth is that you demand to speak with your attorney, and then do not say anything until a lawyer is present.
4) Booking
Ok, now that you have been arrested, you will first be searched for weapons, contraband, and evidence relating to a crime. Then you will be sent to a “holding” facility (police station, local jail, etc). When you get there they will enter your name, time of arrival and offense into the police blotter or log. You will have your photograph taken and your fingerprints will also be recorded. At this point, you should be informed (again) of the charges against you and you will be allowed to make one 1 phone call. If you are arrested on a minor offense, you may be able to obtain release on something called “stationhouse bail” which is when you post cash and promise to return to appear before a court.
If you are arrested on a serious crime you will be placed in lockup and held until such time as you can be arraigned (go before a Judge and try to post bail).
5) Post-arrest investigation
If you were caught “red-handed”, there is little left to be done. Otherwise police will conduct investigation much like pre-arrest with one important distinction. They will be able to investigate the person of the arrestee (usually not available prior to arrest)
-Example: lineup, questioned at length, handwriting or hair samples, etc.
-Usually not applied to vast majority of arrestees and in some cases only to felony cases.
6) Decision to charge
First a higher-ranking police officer reviews the arrest report filled out by the arresting police officer. Decision to not charge may be based on conclusion of insufficient evidence or more appropriately handled by a “stationhouse adjustment.” (Ex: warning/lecture)
The second review of whether to charge is made by prosecuting attorney.
• Varies greatly on what crimes prosecuting attorneys review (ex: felonies vs. misdemeanors) and what information they use (police reports vs. interviewing police officer/victim)
• Most significant factor is the strength of the evidence
-If there is only enough evidence for a lesser offense, then charge will be reduced.
• Other factors include harm caused by offence, victim’s attitude toward pressing charges, arrestee’s criminal record, and ability of alternative remedies.
-Weight of factors often dependent on overall caseload of the prosecutor’s office. This is important to note because if you are in a large city there is going to be a lot larger strain on the prosecutor so you might be able to get off with a minor possession of steroids or something. If you get nailed in some tiny little town in the middle of nowhere, then expect to get ....ed.
• If prosecutor decides to not prosecute, he will file a nolle prosequi motion. (Motion to terminate the prosecution)
-Almost always automatically granted by the court.-Can also be triggered by a plea bargain.
7) Filing the Complaint
Charges are usually filed with the magistrate court and called complaints. For misdemeanor cases, which may be tried through the magistrate court, this will serve as the charging instrument. For felonies, the complaint is only for the magistrate, an information or indictment will replace the complaint for when the case reaches the trail court.
The complaint usually includes a brief description of the offense and is sworn to by the complainant (usually the victim or investigating officer). When the officer-complainant did not observe the offense, he will note the facts alleged are based on “information and belief.” The magistrate will then conduct an ex parte review of the case
This is to ensure that enough incriminating information is there to establish probable cause. If probable cause is not established, then prosecution is directed to promptly produce more information or release the arrestee (This is very rare).
8) The First Appearance
The arrestee is now formally considered a defendant and presented before the magistrate. If police through a citation or stationhouse bail had released defendant, the first appearance will not be scheduled until several days after the arrest. Otherwise it will occur (due to state law) without unnecessary delay, usually several hours after arrest (or later depending on when magistrate court is open).
In the proceeding the magistrate:
• Confirms defendant’s identity
• Informs defendant of complaint and will note the various rights that the def. has in further proceedings.
-Usually right to remain silent, right to council, and securing of a public defender/appointing council if defendant is indigent.
• For felonies, magistrate advises defendant of the preliminary hearing and set a date for that hearing unless defendant waives
• For misdemeanors (since the defendant is not entitled to preliminary hearing or grand jury), the magistrate can proceed with the case in the same fashion as the trial court receiving a felony case. The first appearance becomes an arraignment on the complaint.
• Sets bail if none is set or review bail if defendant obtained release through stationhouse bail.
But this is only the beginning, next issue I will finish my over-view of the arrest procedure, but I thought I would break it up into 2 articles. I just want to express my deepest sadness about the terrorist attacks that occurred Tuesday, September 11th. This is a day that no one will ever forget and I sincerely hope that all of us, as Americans and as human beings, can use this horrible event as a catalyst for changing the world we live in. I consider the events of Tuesday on par with the bombing of Pearl Harbor or the Assassination of JFK; the blow to the social membrane is terrible and I think it will take a long time for these wounds to heal.
LAW AND BODYBUILDING: THE ARREST PROCEDURE CONTINUED
by Grendel

Disclaimer: This article does not constitute valid legal advice, in all cases consult with an attorney in your state. This article draws upon the common law and the codified concepts contained in the Model Penal Code and the Restatements.
I feel bad about the delay in producing this article. I am still pre-occupied with the entire World Trade Center/Pentagon attack. It hit home very recently when my brother, in response to the events of September 11th, dropped out of college to join the military. This is my kid brother, a very smart reasonable guy, and I am both proud of him and worried for him. So I apologize again for the delay in producing this follow-up article. I have put this article in bullet format because frankly, I didn’t have the time to do anything else. Hopefully, these bullet paragraphs are sufficient to get across my point.

1) Preliminary hearing
• The ordinary step for a felony case
• A substantial number of felony charges are likely to be dismissed or reduced between the first appearance and the preliminary hearing
• The defendant ordinarily may wave his right to a preliminary hearing. In many states the prosecutor can also bypass this step.
• The preliminary hearing provides a screening of the decision to charge by a neutral body
• Unlike the magistrate however, this screening is presented in an adversary proceeding with both sides represented by council.
-Prosecution presents its key witnesses and the defense will usually limit its response to cross-examination-This is because traditional defense strategy advises against subjecting defense witnesses to prosecution cross-examination in any pretrial proceeding
• If the magistrate concludes that the evidence presented est. probable cause, then he will “bind the case over” to the next step
-In an indictment jurisdiction, the case is bounded over to a grand jury.-In an information jurisdiction, the case is bound over directly to the general trial court
• If the magistrate concludes that prob. cause only est. a misdemeanor charge, then he will reject the felony charge and allow prosecution to pursue the lower charge, which will be set for trail in the magistrate’s court.
• If the evidence does not support any charge, he will order that the defendant be released (usually about 5-15% of cases where there is a good deal of screening)
2) Grand Jury Review
• About 1/2 of the states (“indictment states”) and the federal level require a grand jury indictment
-In several of these states, the req. for an indictment is only for the most severely punished felonies.-In the rest of the states and the federal system, all felony charges require a grand jury indictment unless waived by the defendant.
• The magistrate’s decision at the preliminary hearing is not binding on the grand jury
• The grand jury is composed of a group of private citizens who are selected to review cases over a term that may range from one to several months.
• Traditionally the grand jury has 23 members needing a favorable majority to indict, although many states use a smaller grand jury (e.g. 12) and require more then a majority.
• The primary function of the grand jury is to determine whether there is sufficient evidence to justify a trial on the charge sought by the prosecution.
• The grand jury meets in closed session and hears on the evidence b the prosecution. The defendant does not even have the right to be present.
• If prosecution is successful, the grand jury will issue an indictment. This will set fourth a brief description of the offense charged and be designated a “true bill”.
• If the grand jury does not approve charges, they will be dismissed (happens about 3-8% of the time).
3) The filing of the indictment or information
• If indictment filed, will be issued to the trial court and replace the complaint as the accusatory instrument
• If an indictment is not needed or the grand jury has been waved, the prosecutor will file an information which replaces the complaint. (Usually must be supported by a preliminary hearing unless that was waved in the information states)
4) Arraignment of the information or Indictment
• When the defendant is arraigned, he is brought before trial court, informed of the charges against him, and asked to enter a plea of guilty, not guilty or nolo contendere (when permitted)
-nolo contendre = no contest, where the defendant does not admit guilt, but will not dispute the charge. Is preferable to the guilty plea, which can be used against the defendant in a later civil lawsuit.
• Often plea bargaining occurs, where the prosecution either reduces the charge or the sentence depending on the jurisdiction
-Sentence reductions take the form of a prosecution recommendation for a lenient sentence (which is given great weight by the sentencing judge) or a promise of a specific sentence agreed to by the judge
5) Pretrial Motions
• Some objections must be raised by a pretrial motion in most jurisdictions
• Commonly they
• Often plea bargaining occurs, where the prosecution either reduces the charge or the sentence depending on the jurisdiction
• Present challenges to the institution of the prosecution (claims regarding the grand jury)
• Attacks on the sufficiency of the charging instrument
• Requests for discovery of the prosecution’s evidence
• Motions to suppress evidence obtained in violation of the federal Constitution
• Pretrial motions only made in less that 10% of all felony cases. In misdemeanor cases less then 1%.
-The use of pretrial motions varies with the nature of the case however. Narcotics commonly have motions to suppress.
6) The Trial
• Only 10-15% of felony cases that reach the trial court actually go to trial. Misdemeanors only 5% of magistrate ct.
• In all jurisdictions, the defendant will have a right to a jury trial for all felonies and misdemeanors punishable for more than 6 months imprisonment (although for misdemeanors this right may only be through a trial de novo)
• Most states also provide a jury trial for lesser misdemeanors.
-Juries are traditionally 12 people, although many states use 6 person juries for misdemeanors and lesser felonies.
• In almost all jurisdictions, the jury verdict (regardless of what it is) must be unanimous. When the jury cannot agree, it is a “hung jury.” (No verdict entered and case can be retried)
• The distinguishing features for a criminal trial vs. a civil trial is
(1) Presumption of defendant’s innocence(2) Requirement of proof beyond a reasonable doubt(3) The right of defendant not to take the stand(4) Exclusion of evidence obtained by the state in an illegal manner(5) The more frequent use of incriminating statements of defendants
• The odds for either a bench or a jury trial favor conviction over acquittal
-This varies with the type of charge however.
7) Sentencing
• For misdemeanors a judge usually has discretion to impose a fine, probation, suspended sentence, or a fixed jail term not to exceed a statutorily prescribed maximum
• For felonies, the choice is between imprisonment and probation
-The legislature is likely to have prohibited probation for some offenses.
• A majority of the states require that the imprisonment indeterminate sentencing
-In this, the court sets a minimum and maximum term, with the parole board determining the actual release date between these limits.
• Some states require determinate sentencing
-The judge sets a fixed term of imprisonment, which must fall within a fairly narrow range, set by the legislature for the particular crime-Earlier parole release is eliminated except for limited good behavior credits
8) Appeals
• Initial appeals for felonies are taken to the intermediate appellate court or if none to the state supreme court
• Initial appeals for misdemeanor cases will be taken to trial court
• Although in some cases this will consist of a trial do novo
The most common objection raised on appeal is the trial court’s admission of evidence obtained through an unconstitutional search. Is the most common basis for reversal as well?
• Other grounds with less success include:
-Insufficiency of the evidence-Incompetence of counsel-Constitutional violations in identification procedures-Challenges to the admission of a defendant’s incriminating statements made to the police
9) Post conviction Remedies
• After the appellate process is exhausted, imprisoned defendants may be able to use post-conviction remedies to challenge their convictions on limited grounds
• Federal post-conviction remedies allow state as well as federal prisoners to challenge their convictions in the federal courts on certain constitutional grounds
• Relief for federal courts is less than 4%, for state systems they are used less frequently.
-Relief is usually limited to requiring a further hearing.
Ok guys that bring us to the end of the whole arrest procedure. I pray that no one has to experience the entire weight of the legal system. Sorry that my article was so precise, but I just couldn’t concentrate well enough to string together my sentences, all I wanted to do is get my point across. Until next week, Grendel out!
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Old 04-08-2018, 08:06 PM
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holy shit how do you read and remember all that? I guess that's why attorneys charge arm and a leg for their services.
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