Memorial Day: New York State Senate passes bills to assist active military

The New York State Senate has passed two new bills, aimed at protecting the parental rights of our military members:

Bill S.3228 prevents the courts from considering the potential for a military service deployment as a detrimental factor when determining parental custody of a child. So long as the parent provides a suitable child care plan for the period of deployment, under the bill, the courts would not be able to infringe upon that parent’s custodial rights, helping more families of service members to stay together.

Bill S.3192 allows a parent to designate a short-term military service guardian, when necessary, during the period in which a custodial parent will be on active military duty. This guardian would only be designated if there is not another parent who has joint custody of the child, a parent whose parental rights have not been terminated, whose whereabouts are known, and who is willing to make the day-to-day decisions for the child.

The bills have been forwarded to the State Assembly for approval. If passed by the Assembly, the bills would then be forwarded to the governor for further action.

Memorial Day: Drive Safely and Avoid Traffic Tickets

With Memorial Day weekend starting Friday, attorney Steven Getman is reminding motorists to practice safe driving habits on New York State roads.

“Memorial Day weekend is a heavily traveled period,” Getman said. “Not only does this increase the chances for accidents, but state and local police will be out in full force.”

Troopers are already are in the midst of the "Buckle Up New York: Click It or Ticket" campaign, Getman noted. In addition, he warned, "sobriety saturation patrols" will be on the roads this holiday weekend looking for drunken drivers.

Other police officers will be keeping an eye out drivers who are texting or talking on their cell phones, Getman said.

“The best way to avoid traffic tickets is to drive safely and obey the law,” Getman explained. “However, if a motorist does get a ticket—or worse, into an accident--he or she should make sure to contact a competent attorney to discuss his or her legal rights and responsibilities.”

For more information on this weekend's traffic safety initiatives, click here.

New Decisions from the N.Y. Court of Appeals

New York State’s highest court has issued a number of decisions this week on civil and criminal law.

The cases cover a number of issues, including the privacy of medical records, a criminal defendant's right to a public trial and whether the police are required to interview witnesses after overhearing potentially exculpatory statements.

Decisions of the New York State Court of Appeals are binding on all lower courts within the state. The decisions are available to the public and can be found at the court’s website.

Federal Law May Force Obama to Make Bin Laden Pics Public

A number of news organizations, including AP, Fox and NPR, are claiming a federal open government law requires the White House to make public the photographs of a deceased Osama Bin Laden.

According to the Atlantic Monthly:

"Pictures of Osama bin Laden and other images from that mission would have compelling news value and public interest," said Dick Meyer, executive editor for news at NPR. "I can foresee circumstances or arguments that would lead us to refrain from publishing the images if we were to get them, but NPR should be in a position to make that decision and not simply accept the government's action."

The National Law Journal notes that national security claims might make the news groups’ difficult, but cites experts who say that the government may, ultimately, have to release the pictures, under the federal Freedom of Information Act (FOIA):

"Theoretically, they could win," said Scott Hodes, who from 1998 to 2002 was the acting unit chief of the Federal Bureau of Investigation's Freedom of Information/Privacy Act Section's litigation unit and is now a solo practitioner in Washington. "It will not be an easy decision. There are reasons on both sides."

The FOIA requires that all federal agency records be accessible to the public unless there exists a specific exemption....

In addition to news organizations, a number of groups have announces plans to file suit to obtain the materials, including the open government group Judicial Watch.

"President Obama's decision not to release the bin Laden photos is at odds with his promises to make his administration the most transparent in history," wrote the group. "Judicial Watch hopes its FOIA requests will provide a mechanism to release these records in an orderly fashion in compliance with the FOIA law. President Obama's reluctance to spike the football is not a lawful reason for withholding these historic public documents from the American people."

In recent history, from the Pentagon Papers to Wikileaks, the need to balance national security against the right of the citizens to open government is an ongoing, and important, public policy issue. Ultimately, as is so often the case, the issue will likely be decided in the courts.

Can a Facebook 'poke' be a threat?

A federal court is grabbling with the question whether a Facebook "poke" can constitute a threat. According to the Rochester Democrat and Chronicle:

Today, a federal prosecutor asked that bail be revoked for Richard "Eric" Riedman, who authorities allege is a member of the Hell's Angels. Riedman is awaiting trial on allegations that he and others stole scrap metal from a CSX railroad yard. An earlier trial on the charges ended up with a hung jury....

Assistant U.S. Attorney Brett Harvey contended that Riedman's bail should be revoked ...because he allegedly "poked" a cooperating witness -- Christopher Monfort -- through Facebook....

Authorities allege that Riedman was ordered not to have contact with Monfort, who testified for almost nine days in the earlier scrap metal trial. They also allege that the Facebook "poke" could be the basis of a criminal charge of tampering with a witness.

U.S. District Judge Charles Siragusa questioned today why prosecutors didn't criminally charge Riedman if they believed they had sufficient proof he had tried to intimidate a witness. Harvey said prosecutors might not have enough evidence to prove guilt because Riedman's computer is now being monitored after being seized.

Harvey acknowledged, "This isn't a straightforward ... threat."

Court of Appeals Issues New Decisions.

New York State’s highest court has issued a number of decisions this week on civil and criminal law.

The cases cover a number of issues, including what constitutes effective assistance of counsel, possible child neglect, the proper disposition of a juvenile delinquency case and time limits for lawsuits involving alleged negligence by a school board member.

The decisions are available to the public and can be found at the court’s website.

Are iPads Violating Federal Record Keeping Laws?

“Apple’s iPad tablet computer could allow White House staffers to circumvent a law aimed at preserving all official communications,” according to a report at the Hill website:

It is unclear how many White House staffers have iPads and to what extent they are used for official business, but the issue highlights the difficulties of the Presidential Records Act, which has failed to keep up with changes in the way people communicate digitally.

The law mandates that all communications related to official business must be archived, and the administration’s policy is that White House staffers who use personal email or social-networking accounts to conduct official business must forward the messages for archiving to official accounts.

But there are few safeguards to ensure they do so....David Ferriero, the archivist of the U.S., said he isn’t comfortable with White House staffers determining for themselves what is and isn’t relevant for presidential records.

The issue facing the White House in this case is not unique. Many other government entities grapple with how to allow staff to use personal technology while staying compliant with “freedom of information” and government record-keeping laws.

In addition, while no one is accusing the White House of breaking the law, there have been attempts by government employees to use personal email accounts in ways that might circumvent open government laws.

In New York State, an opinion has been issued advising that that records of official business emailed to a private or home address are subject to the Freedom of Information Law. It would seem that the federal government, if it has not already, should follow suit.