Chris Dolan Awarded California Lawyer CLAY Award

Thank you, California Lawyer, for this honor. On December 2, 2016, there was a music and art event in an old warehouse in Oakland. This “artist colony” was an unpermitted space where people were living, and “happenings” took place. About 50-60 people were present when, at around 11:20 p.m., a fire broke out. The building, filled with pianos, wood carvings, tapestries and other combustibles rapidly fed the hungry fire and 36 bright, young, promising free spirited souls were overcome with toxic smoke, couldn’t find their way out through the unlit and unmarked exits, and died in what has become known as the “Ghostship fire.”

Many of the finest lawyers throughout California, who were approached for representation, said there was no way to hold the City of Oakland and PG&E accountable, and turned these cases down. We were undeterred and willing to take on the fight even if they said we couldn’t win. These 36 young adults at the threshold of their lives, along with their grieving families, called out for justice and accountability and we took that call.

This case required all my life experience, education, and decades of “figuring it out.” As a young man, I worked dirty, hot, tiring jobs in construction to fund my studies. As a young lawyer, I renovated two old San Francisco buildings including our Market Street headquarters, learning about electrical systems, transformers, voltage drop, metering, and building/electric  codes involved in old buildings. So much of what I bring to the table is practical knowledge. Mary Alexander and I literally dug through the rubble and I used “old school” methods to understand and map out the faulty electrical services. Using my Georgetown Law degree, I “went into the rabbit hole” for 2 solid weeks and researched the s#!t out of the Oakland Municipal Code, State Fire Code, and CPUC regulations to develop the Complaint against the City and PG&E with Bob Bale. Tom Brandi and Brian Malloy used their decades of public entity law knowledge to doggedly drive the case against the City with several arduous, but successful, trips to the court of appeals.

Mary, Bob, Brendan Way, and I relentlessly pursued PG&E through multiple depositions, and a mountain of documents. Eventually, we found a few key documents, with a few critical sentences, to support our allegations that PG&E had violated the CPUC regulations and knew that multiple businesses were drawing too much power through one meter, making the piecework, often un-permitted, electrical system a tragedy waiting to happen.
I was able to focus our energies, using my practical knowledge, to pull these facts from the ashes and build a case with these great lawyers, and many others, including Bobby Thompson, Sophia Acherman, Jennifer Fiore, and Sandra Ribera-Speed. The Executive Committee, Mary, Tom, Bob, Bobby, and I, never considered defeat an option and, in the end, we honored these 36 beautiful lives, and their families, through accountability. We did what they said couldn’t be done. As Margaret Mead said, ‘Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it’s the only thing that ever has.

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Amazon Product Liability

Written By: Christopher B. Dolan

This week I will discuss an important case I’m working on seeking to hold one of the world’s largest, most powerful corporations responsible for injuries caused by products they sell to consumers: Amazon.  

As we have seen in our communities, what online shopping had not yet brought down, the pandemic dealt a death blow. There to fill the vacuum, as both sinner and savior, was Amazon — keeping goods flowing while getting us all hooked on the dopamine fueled search for bargains and next day delivery.

I studied economics and business in my undergraduate and master’s degrees before studying law. There I learned about the multiplier effect: an initial injection into the economy causing a bigger overall increase in national income. The idea is if the government injects, say for example, 1 trillion dollars into the economy, this will lead to a 1.2 trillion dollar increase in national income. People will have more money to spend (whether through unemployment or by their employers re-opening/staying afloat) and demand for goods will go up, leading to more people being hired and more money being spent on things like transportation of goods, retail rents, clothes, furniture, phones, cars, Starbucks, etc. and the cycle repeats.  

Amazon is causing the liquefaction of the foundations of the retail economy with retail workers, transportation workers, parking attendants, janitors, and every related service falling into an abyss. (Think Kmart, Sears, JCPenney, Toys “R” Us.) Money previously injected into local economies is now mainlined into the corporate juggernaut, Amazon, in Seattle. Sure, it creates some jobs but the direct shipment from manufacturers to customer’s results in a net loss of jobs. The money going to Amazon, because of automation and direct shipping, leads to a much lower multiplier effect. The money goes to higher salaries for management and inestimable wealth for Jeff Bezos. How many cups of coffee, cars, planes, clothes and haircuts can one man have? So that money doesn’t multiply through the workforce as before, it consolidates into the ever more exclusive 1% of the 1%.

So what does this have to do with me? I took a case of first impression, not based on its size or value, but based on its potential to protect hundreds of millions of consumers and change the law forever — a case involving a defective hoverboard, purchased on Amazon, which burst into flames on December 31, 2015, burning my client and her home. The cause of the fire was defective lithium-ion batteries. The Chinese manufacturer went out of business as did the U.S distributor. The only one left in the chain of distribution was Amazon. I brought suit on behalf of my client based on a body of law known as “strict product liability,” which holds anyone in the chain of distribution, from manufacturer through the retailer, liable for the injuries caused by dangerous products. The rationale is that they are profiting from the sale, and are in a better position than a consumer to bear or pass along the costs associated with defective products through the purchasing insurance, or increasing the cost of each product a few cents. This is preferable than an individual consumer bearing all of the costs associated with a defective product. In catastrophic cases when a consumer has no health insurance or savings we, the taxpayers, often pay for their medical care and, through Social Security or other programs, their food, clothing and shelter. We end up subsidizing the sale of defective products.

Amazon contends that it is not in the chain of distribution, it just is an electronic platform where buyers and sellers interact with each other, they don’t “sell anything” and, therefore, they should not be held liable for the damages caused by defective products sold through Amazon. I was able to depose Amazon executives and obtain internal corporate documents that showed they charge a listing fee, control the listing content, get a flat fee per-unit-sold, collect the money, process rebates and refunds under their A-Z guarantee, and in the case of the hoverboard, take a 15% cut of the total sale. A trial court sided with Amazon saying that they couldn’t be held liable as a seller and I appealed.

My argument is that they are instrumental in the products being chosen, purchased and delivered, while making a substantial profit. It makes no sense to say that Amazon shouldn’t have the same legal obligation as the very brick-and-mortar stores that Amazon put out of business. Amazon is the 21st century retailer. Their market dominance allows them to put pressure on the manufacturers to make safe products and buy insurance. Strict liability would incentivize Amazon to stop selling dangerous products and purchase insurance with some of their profit so the innocent and unsuspecting consumer (their customer) isn’t left devastated and destitute.

I expect a ruling from the Court of Appeals in the next month. Keep your fingers crossed that the law will, once again, work to equalize the balance of power and hold Corporate America accountable.

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Cyclist Deaths Remain High During COVID-19

Written By: Christopher B. Dolan and Cristina Garcia

This week’s question comes from Wendy L. in Hayes Valley who asks: I am an avid bicyclist and enjoy taking leisurely rides through the City. Since San Francisco has enforced lockdowns due to COVID-19, traffic has decreased and downtown areas feel like ghost towns. However, I read news reports stating that despite the decrease in traffic, the number of cyclists’ deaths remains alarmingly high. I would have expected the number of cyclists’ deaths to decrease as fewer cars are on the roadways. If this is true, what are some of the reasons that bicyclists continue to die at high rates?

Dear Wendy: Thank you for your question. You are correct. Although traffic has significantly decreased since the stay-at-home orders were issued, bicyclists’ deaths remain alarmingly high. According to data from the National Highway Traffic Safety Administration (NHTSA), 2018 was the deadliest year for bicyclists since 1990, with 857 bicyclists’ deaths. In 2019, there was a slight improvement, but the number of fatalities remained at a high 846 bicyclists’ deaths. Due to the disturbingly large number of bicyclists’ deaths in 2020, the magazine Outside committed to tracking every bicyclist death caused by a vehicle collision.

Outside partnered with the nonprofit BikeMaps.org (“BikeMaps”), founded by Trisalyn Nelson, a professor in geographic information science at the University of California, Santa Barbara. BikeMaps has been collecting crowdsourced information about cyclist involved vehicle collisions and traffic hazards such as potholes and road construction in the United States since 2014. Outside and BikeMaps found that in 2020, there were 697 bicyclists who were killed in car crashes. Although this is a decrease from 2018 and 2019, the number of deaths is concerning because it remained incredibly high despite the COVID-19 lockdowns.

According to Outside and BikeMaps, factors contributing to the high rate of bicyclists’ deaths include poorly designed roads, high speed limits, and distracted drivers. For example, they found that the most dangerous road for a cyclist is what Outside and BikeMaps define as an “Arterial Road.” An Arterial road is a busy, multilane street, with traffic signals at intersections and speed limits exceeding 30 miles per hour. Arterial roads account for 65% of the fatal crashes per the data collected and analyzed by Outside and BikeMaps. BikeMaps also noted that cars making unprotected left turns (those with no dedicated left-turn light) are especially dangerous to cyclists and pedestrians because the driver is concerned with oncoming traffic and is not looking out for cyclists or pedestrians.

Another reason for the high number of bicyclists’ deaths in 2020 is that there has been a surge in bicycle sales, which translates to more cyclists on the road. Due to the pandemic, a significant number of people have turned to riding bicycles in order to avoid public transportation and to exercise safely. The NPD Group, Inc., one of the largest market research companies that monitors consumer purchase data, reported that in April of 2020, the cycling industry reported a growth in sales of 75%, generating an unprecedented $1 billion for the month. This surge continued throughout the year. NPD reported that from January through November of 2020, $4.9 billion worth of bikes were sold in the United States. Strava, a popular activity tracking application used by cyclists, reported a 179% increase in membership, further affirming the increasing number of people riding bikes. So, even though there is less traffic, the high number of deaths is impacted by the fact that there are more cyclists on the road.

 Based on the data collected by Outside and BikeMaps, fewer cars on the roads does not mean fewer bicycle collisions. For that reason, we encourage all bicycle riders to wear helmets and continue to exercise and bicycle safety.

If you were injured in a bicycle accident as a result of someone’s negligence, you have the right to seek compensation for your economic and non-economic damages. Economic damages include items such as property damage, medical bills, and lost wages; non-economic damages are commonly known as pain and suffering, physical impairment, and inconvenience. It is important to retain a skilled trial attorney to ensure that you receive full and just compensation for your injuries.

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What is the Filibuster? Here’s What You Need to Know

Written By: Christopher B. Dolan and Kimberly E. Levy

Jacob from San Francisco asks: What is the filibuster? Where did it come from? And how do we get rid of it?

Dear Jacob: Good questions. The filibuster is a form of political obstruction with a sordid past. Essentially, a filibuster is a procedure by which the U.S Senate minority blocks the Senate majority from voting on a bill and thereby prevents its passage. The Senate filibuster was created accidentally in 1806 when a Senate rule allowing the majority to initiate a vote on a bill was deemed to be redundant and written out of the rules. In the absence of a mechanism for ending debate and initiating a vote, use of the filibuster became possible.  

As a result, in 1917 the Senate adopted a cloture rule to bring debates to a quick end. If a two-thirds Senate majority voted to end the filibuster, then the debate was closed. However, it remained exceedingly difficult to end a filibuster even with cloture —  super majority support was required before a vote on any bill. Rarely able to invoke cloture, the Senate eventually reduced the cloture threshold from 2/3 votes to 3/5, which is where it stands today. To this day, the filibuster still permits a minority of senators to keep debate open in the Senate and indefinitely delay a vote; this effectively allows any legislation to be “killed” by a minority of senators who simply refuse to bring the bill to a vote, even though most bills require only a simple majority to pass. 

The filibuster has been used with increasing frequency by the Senate minority to prevent passage of anything but non-controversial legislation and has been used to further institutionalized racism. Southern segregationist Senators infamously used the filibuster to prevent passage of landmark civil rights legislation including hundreds of bills to combat lynching, the 1957 Civil Rights Bill, and the 1964 Civil Rights Bill which was eventually passed regardless of the filibuster. Historically, the filibuster has been used as a tool to advance a minority agenda and proliferate systemic racism in the United States. The filibuster continues to aid in the suppression of civil rights progress to this day. In fact, the very make-up of the Senate chamber, two-senators-per-state, favors less populated states which are disproportionately white states; these less populous states have a disparate amount of power in the Senate. This disproportionate representation, combined with the requirement for a 60-vote threshold to bring a bill to vote, has stalled racial justice in the United States.

Moreover, the filibuster is not required by the Constitution, nor is it even contemplated within the Constitution. To the contrary, the filibuster undermines the system of legislature envisioned by the framers by replacing legislative decision-making based upon the will of a simple majority with the requirement to obtain a super majority in the Senate to pass legislation. Only specific acts were meant to be governed by a super majority, i.e., impeachment conviction, overriding presidential veto, ratifying treaties, etc.   

In the Federalist Papers, framers James Madison and Alexander Hamilton both expressly point out that to require anything more than a simple majority to pass legislation would be to place undue power and influence with the minority. Madison states, “[i]t would be no longer the majority that would rule: the power would be transferred to the minority.” Disproportionate power and influence from the minority, as embodied by the filibuster, was a major problem with the Articles of Confederation. 

There are some ways to bypass the filibuster. Provisions of law that set time limits for debate are not subject to the 60-vote requirement to initiate a vote and are therefore unaffected by the filibuster. Such provisions include trade authority, congressional review of Presidential acts, in cases of national emergency, and when invoking war powers.  

Another way around filibuster is a process called budget reconciliation. The annual budget process circumvents the 60-vote requirement with a simple majority in both the house and senate. The budget resolution is then followed by a Senate reconciliation bill which brings the budget into line with any funding amounts in annual appropriations bills by simple majority.  

The filibuster may be limited or eliminated altogether by a simple majority vote to change the Senate rules. Ironically, the decision to change the Senate rules is itself subject to filibuster. The rules of the Senate do provide for a “nuclear option” which allows any Senator to challenge a rule’s Constitutionality or simply assert that the rule should not be followed. The presiding Senate officer will typically uphold the Senate rules — a ruling which may be immediately appealed and put to vote without debate requiring only a simple majority. The nuclear option has been used to eliminate the filibuster for presidential appointments.  

The Senate filibuster has and continues to stymy lawmakers, preventing meaningful policy change in the United States. It is time for the legislature to be liberated from the will of the minority and eliminate the filibuster.  

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DLF ARGUMENT ON AMAZON’S LIABILITY FOR SALES OF DEFECTIVE PRODUCTS TUESDAY FEBRUARY 23

FOR IMMEDIATE RELEASE
CALIFORNIA COURT OF APPEALS TO HEAR ARGUMENT ON AMAZON’S LIABILITY FOR SALES OF DEFECTIVE PRODUCTS WHICH INJURE AMAZON CUSTOMERS TUESDAY FEBRUARY 23

San Francisco – February 22, 2021 – The California Court of Appeals will hear oral argument on Tuesday, February 23rd, 2021, on the question of whether Amazon can be held liable for injuries caused by defective products made by “3rd Party Sellers” who list and sell their products on Amazon and ship direct to customers.  

Kisha Loomis was burned and her house caught fire when a hoverboard she bought for her son for Christmas 2015 blew up in her home. The hoverboard was manufactured in China by a Chinese company “Smileto” and sold under the alias “TurnUpUp” on Amazon as a Smart Balance Wheel. Smileto sold over 380,000 hoverboards on Amazon in the 4th Quarter leading up to Christmas. On November 28, 2015, Ms. Loomis bought the hoverboard on Amazon who placed the order with Smileto/TurnUpUp which directly shipped the product to Ms. Loomis who received it on December 16, 2015.  Amazon collected and processed payment receiving 15% of the $370.00 sales price ($55.00) plus a listing fee and other related fees.  

In November 2015, Amazon became aware of hoverboards spontaneously bursting into white-hot flames. On November 20, 2015, Costco had recalled the same Smart Balance Wheel product. On December 4th, 2015, Amazon UK pulled all hoverboard listings, including Smileto’s, down because of fire danger. On December 10, 2015, Amazon acknowledged it was aware of at least 17 reports of hoverboards sold on Amazon spontaneously bursting into flames and stated they were concerned that there were fire safety issues from “Chinese hoverboards.” Only then did the Amazon “Product Safety Team” take down tens of thousands of hoverboard listings. AMAZON did not inform Ms. Loomis about the danger associated with the hoverboard she had purchased. Amazon did not tell the sellers to stop shipping the hoverboards already purchased and the dangerous hoverboard was shipped and arrived on December 16, 2015 and was placed under the Loomis family’s tree. It was opened on December 25th and, on December 31st, while plugged into an outlet, it spontaneously burst into intense, flare-like flames. Ms. Loomis was burned, and her home was heavily damaged.  

The Chinese manufacturer had “gone out of business” and Amazon was sued as a retailer under California Law that holds manufacturers, distributors, retailers and others in the chain of marketing, sale, and distribution liable for damages caused by defective products they sell.

A Los Angeles Trial Court sided with Amazon saying it was not in the chain of distribution and not a seller of products but, instead, a platform where buyers and sellers are put together and, further, that they were protected by the Computer Decency Act, Section 230 as their posting was protected speech. 

Christopher Dolan, Appellant Loomis’ attorney, stated, “This is one of the most important cases before the courts.  A mom-and-pop toy store which sold the same product would be held liable as a retailer but Amazon, the biggest online retailer with 46% of online sales, valued at over a trillion dollars, will go scot-free?  This is a crime. First, they drive retailers out of business and then claim that they can’t be held liable as a retailer even though they control the whole transaction. As they take over the world of sales, they must also assume the responsibility those brick and mortar stores they put out of business had.  Let’s face it, Amazon is selling products, making a huge profit, and not making an effort to assure that the foreign and domestic goods they sell are safe. They want all of the money but none of the responsibility. They have to be stopped.”

The 1:00 p.m. hearing may be viewed remotely at https://primetime.bluejeans.com/a2m/live-event/yxpekfyh. 

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If You See Something, Say Something

Written By: Christopher B. Dolan and Vanessa C. Deniston

This week’s question comes from Jim C. in Bernal Heights who asks: I’m currently working on a job site in the city. We are building a subterranean parking garage and we use heavy equipment every day. The guy that drives the excavator is not the most reliable and occasionally he doesn’t show up to work. On these occasions, my supervisor, the foreman, who I am fairly certain has not been trained on the equipment, hops in and operates it in his place. I have also noticed that the lights and the back-up alarm aren’t working. The foreman almost backed up into the cement mixer yesterday, which would have been disastrous. Having worked on job sites for over a decade, I know this isn’t safe, but I am afraid I’ll be fired if I bring this up to the foreman’s supervisor. No accidents have occurred yet, but I’m worried. How should I address these safety risks? 

 

Dear Jim C.: Thank you for your question, Jim. You are right to be concerned. Work environments, especially construction sites, are often rife with safety hazards that must be closely monitored. Certainly, if your foreman is operating heavy equipment and is not trained on the equipment, this not only exposes your company to liability should anything go wrong, but also poses a significant risk to you and others on the job site. This, compounded with some of the excavator controls not operating properly, causes serious safety risks. There are a number of steps you can take to ensure the safety issues are addressed.  

The key is your initial complaint must be either verbal or written to someone in a position of authority, preferably the foreman’s supervisor, and must be framed in the context of work safety. If you told the foreman supervisor, for instance, that you thought it was unprofessional and unfair that the person actually trained on the excavator was permitted to skip work without repercussions, this would not be enough in itself to alert your employer you are making a workplace safety complaint. The best course of action is to put your concerns in writing, preferably in an email which affixes a date and time stamp, and share them with the foreman’s supervisor.  Be specific, citing examples of the unsafe conditions or conduct you observed and when you observed it.  

You may have some further hesitancy, as you aren’t positive the foreman isn’t trained on the excavator. Don’t let this deter you from making a complaint if you have reason to believe he is not trained or if it appears he is operating the excavator in an unsafe manner (i.e. using heavy equipment without functioning back-up warnings, failing to wear proper safety equipment or follow proper protocols concerning the equipment.) You may not have all the information necessary to make a definitive determination whether or not the conduct is actually safe, but the law encourages employees like yourself to speak up if you have reason to believe it is unsafe. In other words, if you see something, say something. 

While construction zones are typically the most common work environment where safety hazards arise, the law on unsafe work conditions is certainly not confined to any one kind work environment. Unsafe conditions can arise in many different contexts in many different environments. Unsafe conditions can range from poor lighting conditions in a staff parking lot located in a high crime area, to exposure to toxic chemicals in a confined space, to a co-worker displaying violent tendencies or bringing a firearm to work.

Your fear of making complaints is understood. If you are hesitant to tell your employer, you have the option to make an anonymous complaint to Cal/OSHA. They are the government entity tasked with making sure workplace safety and health regulations are properly observed.

However, California law protects workers who complain of safety issues. Under the California Labor Code, employees who come forward and voice good faith safety concerns about their workplace are protected from retaliation. Specifically, CA Labor Code §6310 prohibits an employer from discharging or otherwise discriminating against any employee because the employee has made any oral or written complaint about workplace safety. Three elements are required to support a retaliation claim for raising workplace safety complaints:

(1) the employee must have made complaints about workplace safety to his employer;

(2) the employer must have then subjected him to an adverse employment action; and

(3) there must be a causal link between the workplace safety complaint and the employer’s action. 

Once you make the complaint, if you find that you are suddenly being treated differently, such as your hours being cut, you are disciplined for minor issues, or you are treated with aggression or hostility, you may be experiencing retaliation related to your complaint. This is prohibited by law and you should report the retaliation to the foreman supervisor immediately. If you are experiencing harassment or have suffered a demotion or termination following a workplace safety complaint, you should reach out to an attorney for assistance as soon as possible. 

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No Shoes, No Shirt, No Mask = No Service

Written By: Christopher Dolan and Lourdes De Armas

Back in the 1970s there was the public outrage when businesses first placed signs on their doors saying, “No shirt, no shoes, no service.”  This was a response by businesses to keep the long-haired hippies out of their stores and restaurants. There was no state or federal mandate. Many thought businesses were trampling on their civil rights by telling them what they could or could not wear. But businesses have a right to set their own rules for service. The right to refuse service is now an accepted norm as is the phrase.

Similar reactions were heard in the ’80 when California enacted a variety of laws. In 1984, California Supreme Court unanimously upheld a mandatory auto insurance law requiring motorists stopped for traffic violations to prove they have liability coverage or eventually face losing their licenses. Two years later, California’s first seat belt laws took effect on January 1, 1986, and required both drivers and passengers to wear seat belts. It is also a state law that motorcycle riders under age 18 must wear helmets. 

Even in the face of scientific studies showing that seatbelt and helmets save lives, there was the outcry of “the government” interfering with your lives.

Still if you are driving a car and have no proof of insurance, you are not exposing anyone to anything lethal. If someone passes you riding a motorcycle without a helmet, their risk exposure is greater than yours- the same for no wearing a seatbelt.

Now, a whole lifetime later, we buckle up as soon as we sit down in a vehicle, make sure that our kids are wearing helmets, and do not dare drive without insurance. We would not even think about walking into a store with bare feet and no shirt on. All of these have become second nature. No personal liberties have been affected and no one has been hurt by following the rules.

Until the pandemic, we gave little thought to “No shirt, no shoes, no service.” The same should be for masks. Businesses have the right to refuse service to those that refuse to enter without masks. Although it is understandable that culturally, the U.S. wasn’t really prepared to wear masks, unlike some countries in Asia where the practice is more common- it has been almost a year since the pandemic paralyzed the nation and wearing a mask should be second nature. Yet, we are still having this debate.

Mask compliance has become a political issue instead of a health issue despite the evidence. “This is a life-and-death issue. Masks, physical distance and hand-washing are the three things we have to reduce the spread of the virus in the absence of a vaccine”, according to Dr. David Abrams, NYU School of Global Public Health. 

Both the Centers for Disease Control and Prevention (CDC) and the World Health Organization recommend masks for the general public. Keeping in line with the experts, California Department of Public Health issued face covering guidance in April 2020 that must be followed statewide.

Analysis of data from Johns Hopkins University, California ranked No. 1 among the states where coronavirus was spreading the fastest on a per-person basis. Still protests over wearing masks are now commonplace. As Dr. Abrams pointed out “There’s a certain bravado of being angry and defying requirements to wear a mask.”

  • “Costco Karen,” for instance, staged a sit-in in a Costco entrance after she refused to wear a mask, yelling “I am an American … I have rights.”
  • An unruly crew marched through Target yelling “Take off your masks, we are not going to take it anymore.”
  • “Burn the Mask” protestors blocked the entrance of Trader Joe’s in Fresno to causing the store to close early.
  • A protestor at a Ralph’s in Los Angeles called a shopper wearing a mask a “mask Nazi.”
  • In a mall in Century City, anti-mask protesters tried to force their way into several stores causing workers to be barricade themselves inside stores to keep out protesters.

Despite the protestations, wearing a mask just like wearing seat belts, shoes and a shirt, does not violate your rights. The government has a right to enact laws to protect the health and safety of the public. That is the quintessential role of the government. 

To the extent that protestors object that masks violate their right to liberty (“my body, my choice”), they should direct their attention to Jacobson vs. Massachusetts (1905) 197 U.S. 11, the Supreme Court upheld the state’s smallpox vaccination requirement. The case has not been overturned.  The case clearly explains why mask mandates do not violate any constitutional right to privacy, health, or bodily integrity. The court ruled that the requirement didn’t violate Jacobsen’s right to liberty or “the inherent right of every freeman to care for his own body and health in such way as to him seems best.” The court added that “[t]here are manifold restraints to which every person is necessarily subject for the common good. On any other basis, organized society could not exist with safety to its members.” 

The case makes it clear that the ideals of limited government do not absolve us of our social obligation to protect each other. Simply put, we do not have a constitutional right to infect others.

For now, masks are necessary. Common sense suggests that If there is no choice, we will wear masks. We all will be safer if businesses work together to make “No Shirt, No Shoes, No Masks, No Service” the norm in California.

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A Closer Look at California’s New Laws for 2021

Written By Christopher B. Dolan and Jeremy M. Jessup

This week’s question comes from Johanna in Truckee who asks: Every new year there are hordes of new laws that are enacted but I find it difficult to know what they are. Is there any way you can provide some highlights of California’s new laws?

Dear Johanna: Out with the old and in with the new, as the saying goes, and as you pointed out — and that includes a number of new laws that went into effect on January 1st here in California or are going to come into effect shortly. There were hundreds of bills that were signed into law and some that were voted on by the people. A number of these will not start until later this year, such as being prohibited from buying more than one semiautomatic rifle in a 30-day period. Some may begin even later, like a flavored-tobacco ban that was set to go into effect on the 1st, probably will not be adopted until some time in 2022.

Here are some of the laws that have gone or are going into effect for 2021:

Additional penalties for texting and driving

It’s already the law that you must use hands free devices while driving, whether you’re talking or texting. Now the punishment is getting stricter. Two convictions in 36 months will add a point to your record starting in July 2021.

 Hot car rules

It’s already against the law to leave a child under 6 in a car unattended. Now those who try to help are protected from civil or criminal liability for property damage or trespassing if they break into the car to rescue the child.

Minimum wage 

Starting January 1s California’s minimum wage is $14 at companies with 26 or more employees and $13 at companies smaller than that. This is a $1 increase from last year’s hourly minimum. Some cities, like Palo Alto, Sonoma and Mountain View have already increased their minimum wages to $15 or more this year.

Expansion of paid family-leave benefits

Family-leave benefits for nearly six million residents have been expanded. In addition, Californians who work for an employer with at least five employees are included in job protection benefits. The new law also expands on the potential reasons for taking leave, making it possible for workers affected by COVID-19 to take time off to care for a parent, sibling or grandchild.

Transgender protections

The Transgender Respect, Agency and Dignity Act allows incarcerated transgender, gender-nonconforming and intersex individuals to be housed and searched according to their gender identity.

Workplace COVID-19 protections

The new law requires employers to take specific actions, like written notifications to employees, within one business day of a potential exposure to COVID-19 in the workplace. The notification must be written in English and another language, if applicable. This law does have a sunset provision, which is the end of 2023.

Inmate Firefighters

After a devastating fire season, when many inmate firefighters were released early because of the pandemic, prisoner firefighting crews served a crucial role; a new law will now allow nonviolent offenders to petition to get their records expunged and to use their training to gain employment as firefighters. Previously, inmates were precluded because of their criminal records from becoming firefighters upon release.

Parolees’ right to vote

Voters passed Proposition 17 in the November election, which restores felons’ right to vote after the completion of their sentence.

Youth criminal justice reforms

Starting in July, the state will be phasing out juvenile prisons. In addition, a new law prevents kids who are acting out in school from being referred to probation programs or becoming a ward of the court; instead, they’ll be referred to community support services. Finally, it will become easier for minors in police custody to get legal counsel before being questioned.

The three remaining state youth facilities will no longer accept newly convicted youth after July 2021. The state will be transferring the responsibility of the convicted youth back to the counties. 

Student loan borrowers

Effective July 2021 will be Assembly Bill 376 which offers new protections for student loan borrowers and makes it harder for lenders to take advantage of people who may not know all their rights or how to navigate the system.

Demilitarizing police uniforms

Law enforcement will no longer be allowed to wear uniforms that have camouflage or otherwise resemble military uniforms. This law does not apply to members of various tactical response teams, such as SWAT, nor does it apply to the Department of Fish and Wildlife.

Bans on certain police restraint tactics

AB 1196 eliminates the use of any chokehold or carotid restraint technique by law enforcement. The bill prohibits any state or local law enforcement agency, including campus police, from authorizing the use of a carotid restraint or chokehold. The bill defines a chokehold as any defensive tactic involving direct pressure applied to a person’s trachea. It also defines a, “carotid restraint,” as any restraint, hold, or other defensive tactic that applies pressure to the sides of a person’s neck, which involves a substantial risk of restricting blood flow, and that may render the person unconscious.

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Safety Measures for Cyclists and Truck Drivers

Written By: Christopher B. Dolan and Emile A. Davis 

This week’s question comes from William B. in Berkeley who asks: On the news I heard about a truck that collided with a group of cyclists. It was horrendous. Some cyclists were terribly injured and one even died. I realize, as a cyclist, how vulnerable we cyclists are, even when we are being cautious and aware. What protections do we have if a truck takes us out? Anything?

Dear William: Thank you for this important question about trucks, cycle safety and protections. As a cyclist myself, and having represented hundreds of cyclists, I am all too aware of the dangers caused by automobiles in general and the particular issues raised by large trucks. To answer your question, I look to three categories of protection:

1) steps that can be taken, as a cyclist, to avoid accidents with trucks;

2) rules truck drivers must follow to ensure they are alert and aware; and, finally, if the first two fail,

3) remedies and inquiries to seek justice after a collision.

Steps that Cyclists Can Take to Avoid Accidents

The sad truth is that many motorists simply do not see cyclists. It is not merely inattention, but a neurologic phenomenon sometimes called, “filling in.”  People’s brains are continuously anticipating what we will see. If an object is obstructed, the brain simply, “fills in,” the missing information with its best guess. There are several steps a cyclist can take to make sure they are actually seen. The easiest is to use anti-camouflage; wear bright colors and reflective gear, have lights and reflectors on a bicycle in order to stand out from the environment and draw attention to yourself. That way the cyclist is seen and the driver does not just, “fill in,” the scenery. 

You hit upon perhaps the most important other steps that can be taken – actively being cautious and using situational awareness to know when danger is increasing. These are key to a cyclist’s safety in relation to not only trucks, but traffic in general as well as roadway defects.

Department of Transportation Rules to Keep Truck Drivers Safe and Alert

Often, thankfully, long haul truck drivers are some of the best and most experienced drivers on the road. Additionally truck drivers are subject to many specific rules and regulations designed to make sure they are alert and driving safely. The Federal Department of Transportation, through the FMCSA (Federal Motor Carrier Safety Administration) has regulatory authority over truck drivers. They have a number of safety-based regulations affecting property-carrying vehicles. Initially, the driver must be at least 21 years of age, possess a commercial license and complete a road test. Any driver who has been convicted of a DUI or transporting drugs would be disqualified from employment in this field.

Once a driver is hired, they must record and certify in a log their driving start and end times as well as days off to demonstrate that they have followed basic safety requirements such as:  

  1. A driver must have had 10 hours off duty before beginning a shift.
  2. A driver may not drive after a period of 14 consecutive hours until he has had 10 hours off duty.
  3. A driver may drive for a total of 11 hours out of this period of 14 consecutive hours.
  4. A driver may not be on duty for a period of more than 60 hours in 7 consecutive days or 70 hours in 8 consecutive days.

The requirements are even more stringent if the driver is transporting passengers. A complete list of DOT regulations can be found at: https://www.fmcsa.dot.gov/regulations/title49/b/5/3

Recovery if a Collision Does Occur

Unfortunately the above precautions are not always enough and a cyclist is injured by a truck. When that occurs the law provides that a responsible party pay for the damages suffered by the person injured.  The law anticipates that trucks have the potential to cause greater harm than typical automobiles. Insurance coverage for trucks, unlike the relatively small insurance policies required by automobiles, are more substantial. Large commercial trucks transporting goods are required to carry a minimum of $750,000 in available insurance. Companies are often also encouraged to carry additional Commercial General Liability insurance to protect their assets, and individuals injured because of the potential trucks have for creating very serious injury, such as the collision that prompted you to write.

To obtain justice for a person injured by a truck a good lawyer will confirm all available insurance policies. They will also investigate to determine if the DOT safety regulations were properly followed.  Where there was a failure, it is important to determine if it was merely a failure of the truck driver to do the right thing, or, whether the employer of the driver set expectations or policies that required a driver to push the limits of the regulations and to drive unsafely. Similarly, a company that employs truck drivers may not properly screen or train drivers appropriately for the type of driving they are tasked to do. Employer failures of this type can open the employer up to the potential liability to compensate an injured person beyond the limits of an insurance policy.

As with many activities, if everyone does their part to avoid accidents, they become far less likely. However, they do still occur. If you or someone you know is injured by a truck driver, while cycling or otherwise, consult an attorney such as those at the Dolan Law Firm who are experienced in that area of law.

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What You Need to Know About the 25th Amendment

Written By: Christopher B. Dolan and Matthew D. Gramly

This week’s question comes from Donald in Washington, D.C. who asks: Following the January 6th riots in Washington D.C and the storming and occupation of the Capitol Building by domestic terrorists egged on by President Trump, I’m hearing many people call for the invocation of the 25th Amendment. What is it, what does it do, and how does it work?

Dear Donald: Thank you for your timely question. The 25th Amendment to the Constitution of the United States, commonly referred to as the Disability Clause, provides a framework to remove a sitting President from office before the end of their term, either willingly or unwillingly. It defines when and how the Vice President becomes President if a sitting President dies while in office, resigns or is removed from office. 

The Amendment was drafted in 1965 in the wake of the assassination of President John F. Kennedy. Following Kennedy’s assassination, Lyndon B. Johnson was sworn in as the next President on Air Force One in Dallas, Texas. However, there needed to be a more formal set of Constitutional guidelines in place to govern such circumstances. The draft amendment was submitted to the states by Congress for approval and was formally adopted as an amendment to the Constitution on February 10, 1967.

There are four sections within the 25th Amendment. The first three sections address what is to happen in the case of the President’s death, or a resignation or incapacitation which the President acknowledges. The fourth section addresses the incapacitation of the President that the President is unwilling or unable to acknowledge, essentially removing a President from office against his will. It would seem that for purposes of this discussion it is the fourth section that applies most directly to current circumstances. The bipartisan allegation has been made that President Trump purposefully instigated his supporters to violently take over the Capitol Building in Washington, D.C., that he aided and abetted a terrorist attack on the United States, that he encouraged it while it was happening, and that this is evidence of his unfitness for office. Many people are saying that he is a clear and present danger to the United States and must be removed from office immediately.

The fourth section of the 25th Amendment provides the framework and process by which this could be accomplished. Theoretically the fourth section allows the Vice President, along with a simple majority of members of the President’s Cabinet (Secretary of State, Secretary of Defense, Secretary of Labor, etc.) to make the determination on their own that the sitting President is in some manner disabled to the point of being no longer capable of performing the functions of the office in a competent manner. However, it is important to note that it has never been enacted against a sitting President’s will. There is no precedent in American history for what our nation currently faces: the possibility of removing a sitting President from office who is conscious, otherwise fully ambulatory and does not want to go.

The 25th Amendment has only been invoked a few times in our nation’s history. Most recently it was called upon for such a mundane thing as President George W. Bush being under sedation for a colonoscopy. The powers of the office, if not the title, were thereby transferred to then Vice President Dick Cheney for a few short hours. The 25th Amendment was NOT enacted, however, in 1981 following an assassination attempt on President Ronald Reagan, who was under sedation and incapacitated for a much longer period of time than one would be for a routine colonoscopy. President Reagan’s doctors later stated that the situation had most definitely called for the enactment of the 25th Amendment’s provisions for a period of several days.

It is also important to note that similarly with the concept of whether a sitting President can issue a self-pardon for federal crimes, the fourth section of the 25th Amendment, removing an otherwise healthy sitting President from office against his will, has never been tested in the courts. It simply never has been attempted. However, the fourth section of the Amendment DOES provide a Constitutional framework for doing so.

The first paragraph of Section Four reads as follows,

“Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.”

This single sentence provides for the Constitutional removal of the President of the United States of America from office against his will.

It would require what would essentially be a letter signed by Vice President Mike Pence and 11 or 12 members of the President’s Cabinet attesting under penalty of perjury that President Donald Trump is no longer capable of performing the duties of the Office of the President. They would deliver a copy to the Senate and a copy to House Speaker Nancy Pelosi. Thereafter Mike Pence would be immediately sworn in as Acting President, thus ending the Presidency of Donald. J. Trump. Regardless of whether or not the provisions of the 25th Amendment are enacted in these current circumstances, at noon on January 20th Joseph R. Biden and Kamala D. Harris will be sworn in as President and Vice President, respectively.

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