Archive for Family Law

March 14, 2017   Posted by: Margarita Smirnova

YOU ARE ON YOUR OWN!

     Second Amendment of the U.S. Constitution states: “A well regulated Militia, being necessary to the security of a free state, the right of the  people to keep and bear  Arms, shall not be infringed. U.S. Const. amend II.”

Supreme Court ruled that the Second Amendment guarantees the individual right to posses a firearm in the home for the purpose of self defense. See District of Columbia v. Heller, 554 U.S. 570 (2008).  And the Fourteenth Amendment provides: “No State shall … deprive any person of life, liberty, or property, without due process of law”. U.S. Const. amend IV.   The court held that the the Second Amendment “is fully applicable against the States.” McDonald v. Chicago, 561 U.S. 742 (2010).

Massachusetts is famous for being one of the most toughest states in regulating firearms. Just by looking at the M.L. Section 131: Licenses to carry firearms; conditions and restrictions says a lot.  The law begins not with rights; it sets out restrictions.  In other words, M.G.L. c. 140 §131 authorizes a licensing authority to place restrictions on the license, preventing the licensee from lawfully carrying a handgun on his person outside of his home.  Residents of Massachusetts must obtain a license to both purchase and possess firearms, ammunition, and feeding devices. M.G.L. c. 140, §§ 129C, 131, 131E, c269 § 10.  Under M.G.L. c. 140, § 129B., a Firearms Identification Card is a “shall-issue” license, if an applicant meets statutory requirements.

Local Police Chiefs/Commissioners administer firearms licensing for any person residing or having a place of business within the jurisdiction of the licensing authority. M.G.L. c. 140, §§ 121, 129B, and 131.  Most of the time, the judge sides with the police deeming a petitioner who has had small indiscretions with the law in his or her teens and now a business owner and/or has a family, too dangerous to ever exercise their right to protect themselves and their loved ones.
Politics and money create a legal system reflecting the society.  Question comes to mind is how the right became a restricted permit?  In simple terms, some people are so scared of guns and gun violence that they would rather have no protection for themselves and others thinking they will be insulated by circumstances others aren’t as fortunate.

The police aren’t at our beck and call nor should they be.  Many folks working in law enforcement put their lives on a line to protect us and do their best.  They do reserve the right to protect themselves first and exercise their discretion whether the call is a true emergency.  Police also can be very busy and cannot arrive fast enough.  In 2005, U.S. Supreme Court ruled that Police doesn’t have a constitutional duty to protect.  See Castle Rock v. Gonzales, 545 U.S. 748 (2005), is a United States Supreme Court case in which the Court ruled, 7–2 (Alito and Ginsberg dissented), that a town and its police department could not be sued under 42 U.S.C. §1983 for failing to enforce a restraining order, which had led to the murder of a woman’s three children that the estranged husband kidnapped earlier during the day and the police used their discretion and ignored a judge who ordered restraining order.

Without going into analysis as to how and why the children were kidnapped with an active restraining order that police chose to ignore and argument that restraining orders are given out too easily, the judge ordered it, the order was in place and the system failed Mrs. Gonzales who did everything right to protect herself and her children.  This means that while a criminal element doesn’t care to obtain firearms legally, you are on your own!

By Margarita Smirnova
Call: (617)398-7482
E-mail: margarita.smirnova@gmail.com
This post is for informational and educational use only and does not create attorney-client relationship.

May 22, 2012   Posted by: Margarita Smirnova

Monitoring of Sensitive Information, Warrants and Legal Response!

In a recent US v. Jones, (January 2012) decision the US Supreme Court held that “the Government’s attachment of the GPS device to the vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment.”  In Jones, the police obtained the warrant but didn’t quite properly execute it.  While the Jones case was mostly the 4th Amendment of the US Constitution and its protections and warrant issues, the key issue in my mind was the surveillance and how far it can go without the warrant.  Warrant less surveillance has been a hot topic forever.  Law responds depending on political movement of what is considered the bad guy at that certain period of time.

Now, US Supreme Court is going to hear a new case.  This time the question involves a post Sept. 11 government’s aggressive use of electronic surveillance.  The scrutiny is over the validity of an amendment to the Foreign Intelligence Surveillance Act (FISA) which is about disclosure of the “secret program to wiretap the international communications of people suspected of terrorist ties without obtaining court warrants,” according to the New York times.  In other words its about the wiretapping law of 2008.

While I clearly understand the “security” reasons behind this particular legislation, it is always the current state of affairs in the country that makes up the decision of the judges.  I find it fascinating how each new legislation especially of this huge caliber brings out the gray area that eventually shapes our legal history in the long run.

See below, Supreme Court Agrees to Hear Case on Surveillance, by Adam Liptak, May 21, 2012 
 http://www.nytimes.com/2012/05/22/us/justices-agree-to-hear-surveillance-challenge.html?_r=1&hp

Written by Margarita Smirnova, Esq.

If you have a specific question relating to your business, please contact
Margarita

Call: (617)398-7482

E-mail: margarita.smirnova@gmail.com

 

no comments posted in: Business Law   |   Family Law   |   Immigration Law
April 28, 2012   Posted by: Margarita Smirnova

Value of the legal advice!

Many people seek legal help at least once in their lives. Legal questions range from assisting in dealing with local, State or Federal government. Business related questions such as drafting a contract or review one prior to signing. Employment contracts can be tedious to read. I always tell my clients to read everything their sign. A criminal or civil litigation representation or even preventative consultation are last but not the least issues that people need legal assistance in; among other things.

First question every attorney gets is “How much will it cost me?”

There are few types of legal fees. They vary based type of the case. For example, some attorneys take contingency fees. Generally, contingency fee is 1/3rd or 33% from the entire disputed amount of the case. Court costs are usually not included. However, parties can agree on different percentages.

Some attorneys charge hourly fees and some offer flat fee arraignment. While there are pricing guidelines, there is no general price set for an actual legal hour. Lawyers’ prices vary depending on location, local custom and office expenses. This is a fair market value price.

The attorney with higher prior experience and/or skill in particular field, which charge more. Size of the firm where the attorney works can also affect the cost. Keep in mind that ethical guidelines forbid attorneys charging contingency fees for criminal and marital cases.

The contents of this and future articles is for informational purposes only and should not be construed as providing legal advice. Each individual case is different and the outcome of your case depends upon its circumstances.

Written by Margarita Smirnova, Esq.

If you have a specific question relating to your business, please contact
Margarita

Call: (617)398-7482

E-mail: margarita.smirnova@gmail.com

no comments posted in: Business Law   |   Family Law   |   Immigration Law   |   Litigation